Delhi District Court
State vs . 1) Kishore on 11 February, 2022
AIN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS
JUDGE-04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 57355/2016
CNR no. DLNT01-000051-2014
State Vs. 1) Kishore
S/o Sh. Ompal
R/o H.No. 487, near Pakki Chaupal,
Alipur, Delhi.
2) Pankaj
S/o Sh. Udai Kumar Chaurasia
R/o H.No. 695, near Dayal Market,
Alipur, Delhi.
3) GP
S/o "MP"
(Accused No.3 as per charge-sheet)
(Since Juvenile)
FIR No. :264/2012
Police Station :Alipur
Under Sections :363/302/201/34 IPC
Date of committal to Sessions Court :19/06/2014
Date of institution :14/06/2014
Date on which case received by Session Court:03/07/2014
Date of Arguments : :11/02/2022
Date on which Judgment pronounced: :11/02/2022
JUDGMENT
1. In brief, the case of prosecution is that on 15/08/2012, at 10.15 a.m., Ram Kumar Sharma S/o late Sh. Ram Swaroop, R/o Jugal Garden Wali Gali, village Budhpur, Delhi, came to the Duty Officer of PS Alipur and stated that his SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 1 of 69 son Rahul Kumar Sharma, aged 14 years, height 135 cm, fair colour, round face,thin built, wearing red-white striped shirt, cream coloured pants, red belt, black shoes and having black school bag, had left home for Jain Mandir School, G.T. Karnal Road, Nangli Poona yesterday i.e. 14/08/2012 but neither he reached the school nor came back home. He further stated that they tried to search for his son at their end & had suspected that someone had taken his son by alluring him. He further stated that his son Rahul may be searched and legal action may be taken. The said information was reduced into writing by the duty officer vide DD no. 18A dated 15/08/2021, PS Alipur, Delhi. The said DD was marked to ASI Chand Singh and information was also given to Ct Devender of PCR on 100 number, channel No. 142. On the basis of said statement of Ram Kumar Sharma, tehrir was prepared and case was got registered u/s 363 IPC.
1.2. The investigation of the case was taken-up by ASI Chand Singh and SI Jitender Joshi, who completed all the formalities and interrogated the suspected persons and tried their best to trace missing boy Rahul, but could not succeed. Thereafter, the investigation was entrusted to Special Staff, Outer District.
1.3. On 12/04/2014, during the course of investigation, Inspector K.P. Malik interrogated one person namely Kishore s/o Narangi Lal R/o Village Budhpur, Delhi, who had lastly seen the missing boy Rahul with Pankaj (A-2 herein) on a motorcycle in the morning of 14/08/2012. IO recorded the statement of said Kishore.
1.4. On 14/04/2014, IO called the suspect Kishore and Pankaj in the office of Special Staff and they were interrogated at length and they finally disclosed about their involvement in the murder of victim Rahul along with their third associate "GP" (JCL) (complete particulars are not mentioned for the purpose SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 2 of 69 of not disclosing the identity of juvenile). They both disclosed that they had murdered the victim Rahul on the same day of kidnapping i.e. 14/08/2012 and had carried the Rahul in a pakka covered nala near Radio Station Khampur Village and murdered him by strangulation and left the dead body in the nala. Both accused Kishore and Pakaj were arrested in this case and their disclosure statements were recorded.
1.5. On 15/04/2014, the clothes, which victim Rahul, was wearing on the day of kidnapping and skeleton including skull and 103 bones of victim Rahul were recovered from the pakka nala near Radio Station Khampur village on the pointing out of accused Kishore & Pankaj in presence of Ram Kumar Sharma. The crime team along with photographer was called at the spot. In-charge crime team inspected the spot and photographer had taken photograph and videographed the spot. The aforesaid articles were taken into police possession by preparing separate pullandas sealed with the seal of "SP" vide seizure memos and were deposited in the malkhana. The site plan without scale was prepared. Both accused Kishore and Pankaj were medically examined and produced in Court and their two days police custody remand was obtained for the recovery and arrest of third associate "GP" (JCL). A team under supervision of SI Vikram along with both the accused was sent to Ludhiana, Punjab for the arrest of third accused "GP" (JCL).
1.6. On 16/04/2014, team headed by SI Vikram Singh apprehended the "GP" (JCL) in Ludhiana, Punjab and came back to office of Special Staff. Accused "GP" (JCL) was interrogated and cross-examined in the presence of both accused Kishore and Pankaj. "GP" (JCL) also accepted his involvement in the murder Rahul and as such he was apprehended in this case. His arrest memo and personal search memo were prepared and his disclosure statement was recorded.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 3 of 691.7. On 17/04/2014, "GP" (JCL) pointed out the place of occurrence. IO prepared the pointing out memo. One Munna S/o Bhabhuti identified "GP" (JCL) in the office of Special Staff in the presence of Ram Avtar and Ram Kumar Sharma that he was the person who had made telephone call to Ram Avtar on 16/08/2012 from his STD/PCO shop. IO recorded the statement of said Munna. All the three accused were medically examined and produced in the Court and "GP" (JCL) was sent to judicial custody and one day PC remand of accused Kishore and Pankaj was again obtained for the recovery of belonging of deceased Rahul.
1.8. On 18/04/2012, the residential rooms of both accused Kishore and Pankaj were searched in the presence of Ram Kumar Sharma. The school bag and a music player which victim Rahul was having on the day of missing, were recovered on the identification of Ram Kumar Sharma from the room of accused Kishore. Both these articles were taken into police possession vide a seizure memo. Thereafter the room of accused Pankaj was searched in the presence of Ram Kumar Sharma and five toy cars were recovered on the identification of Ram Kumar Sharma from the room of accused Pankaj, which were taken into police possession vide a seizure memo. One motorcycle no. DL-8S-NC-2227 which was used in the commission of offence was also recovered from accused Pankaj, which was taken into police possession vide a seizure memo. Ankur Verma S/o Surender, who is a goldsmith by profession, was called in office and interrogated in the presence of both accused Kishore and Pankaj. The jewellery which was handed over to accused Kishore by the victim Rahul on the day of incident was sold to said Ankur Verma by the accused Kishore. Statement of said Ankur Verma was recorded. Both the accused were medically examined and produced before the Court and sent to judicial custody.
1.9. On 23/04/2014, the sealed pullanda of skeleton containing skull and SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 4 of 69 103 bones of deceased Rahul were sent to mortuary of BJRM hospital for postmortem. The doctor preserved the femur bone for DNA comparison and sealed it in a plastic jar with the seal of FMT BJRM hospital. The sealed pullanda was taken into police possession vide a seizure memo. The remaining skull and bones were handed over to Ram Kumar Sharma, father of deceased. The sealed pullanda was deposited in malkhana of PS Alipur.
1.10. On 24/04/2014, the postmortem report no. 318/14 of deceased Rahul received from mortuary BJRM hospital. In the postmortem report, the doctor had opined that "cause of death was not possible, recovered bones are of human being and sex is male". Times since death was around more than 1 and ½ year. Stature of the victim (bones) is approximately around 150-160 cm & age of the victim was around 14 years.
1.11. On 29/04/2014, the sealed femur bone of the victim Rahul and blood sample of Ram Kumar Sharma and Ms. Rajni Sharma, father & mother of the victim respectively were deposited in FSL for DNA comparison vide FSL no. DNA- 3083 dated 29/04/2014. On 02/05/2014, Inspector Manohar Lal, draftsman, inspected the place of occurrence on the pointing out of IO and took measurements and prepared scaled site plan which was placed on record.
2. On completion of investigation, the charge-sheet u/s 363/302/201/34 IPC was filed before the concerned Magisterial Court on 14/06/2014.
3. Accused "GP" was declared juvenile vide order dated 03/09/2014 by the concerned Magisterial Court.
4. The case was committed to the Court of Sessions vide order dated SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 5 of 69 19/06/2014 and it was received by the Sessions Court on 03/07/2014.
5. It is pertinent to mention here that by the time the charge-sheet was filed before the concerned Court, the FSL result was awaited.
6. Vide order dated 10/10/2014, charge u/s 363/302/201/34 IPC was framed against accused Kishore (A-1) and Pankaj (A-2) to which they pleaded not guilty and claimed trial.
7. During trial, FSL report was filed before the Court.
8. In order to prove its case, prosecution has examined 20 witnesses in all. The details of said witnesses are as under:-
S. Name of prosecution witness Purpose of examination
No
.
1 PW1 Manoj Kumar Qua car no. DL-5CB-1997 make
Esteem which was purchased by this
witness on 13/08/2012 from Ravinder
Singh through Kale Mistry (junk
dealer), which he further sold to one
Anil Kumar Mongia for a sum of Rs.
27,000/- on 13/08/2012 vide
documents Ex. PW1/A (colly)
2 PW2 Roop Kishore Who came to prove that on
14/08/2012, he saw accused Pankaj
(A-2) along with Rahul (since
deceased) on a motorcycle going
towards Alipur and has proved
photograph of deceased Rahul Ex.
PW3/A.
3 PW3 HC Shiv Om, Crime Team Who came to prove 22 photographs
Photographer Ex. PW3/B (colly) & negatives thereof
Ex. PW3/A (colly) & CD of the
videography done by him of the scene
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 6 of 69
of crime Ex. PW3/C.
4 PW4 Ravinder Singh Qua Esteem Car no. DL-5CB-1997.
5 PW5 HC Baljeet Singh Who came to prove the copy of DD
no.18A Ex. PW5/A & attested copy
thereof Ex. PW5/B, copy of FIR Ex.
PW5/C and certificate u/s 65B of
Indian Evidence Act Ex. PW5/D.
6 PW6 Dr. Bhim Singh Who came to prove the factum of
conducting examination of bones
alleged to be of deceased Rahul vide
PM report Ex. PW6/A.
7 PW7 Ram Kumar Sharma, father of Who came to prove missing report deceased. vide DD no. 18A Ex. PW5/A, photograph of his missing son Ex.
PW2/A, seizure memo Ex. PW7/A,
pointing out memo Ex. PW7/B, seizure
memo Ex. PW7/C and Ex. PW7/D.
8 PW8 Ashok Kumar For proving the record regarding
vehicle No. DL-8S-NC-2227
(motorcycle pulsar) Ex. PW8/B and ID
proof of accused Pankaj (A-2) Ex.
PW8/A.
9 PW9 Inspector Anil Kumar, crime For proving crime team report Ex.
team in-charge PW9/A.
10 PW10 SI Vikram Qua apprehension of JCL & collection
of FSL report Ex. PW10/A along with
its analysis report Ex.PW10/B.
11 PW11 HC Rajender Qua collection of sealed pullanda
containing bones of deceased Rahul
from MHC(M) vide RC no. 58/21/14
and reaching at BJRM hospital, qua
seizure memo Ex. PW11/A of sealed
one bone in the plastic jar, handing
over of remaining bones to the father
of deceased Rahul, depositing of
sealed pullanda in malkhana, taking of
sealed pullanda containing femur bone
from MHC(M) to FSL Rohini, qua
taking of blood sample of parents of
deceased and qua depositing of blood
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 7 of 69
samples and sealed pullanda
containing femur bone at FSL.
12 PW12 Ankur Verma Qua the factum of selling of jewellery
to him by accused Kishore.
13 PW13 Inspector Manohar Lal, For proving scaled site plan 13/A.
Draftsman
14 PW14 Ram Avtar Sharma, elder For proving the fact that accused brother of father of deceased Kishore and Pankaj used to roam with the victim Rahul (since deceased) along with one Avniket & qua raising suspicion against them for missing of Rahul and identification of JCL by Munna, STD/PCO owner.
15 PW15 ASI Chand Singh, first IO Qua initial investigation done by him. 16 PW16 Inspector Samar Pal Singh Qua investigation conducted in his presence.
17 PW17 ASI Jagdish Singh Qua investigation conducted in his presence.
18 PW18 SI Jitender Joshi, second IO Qua the investigation conducted by him.
19 PW19 Ms. Anita Chhari, SSO For proving report Ex PW10/A and (Biology) , FSL, Rohini,Delhi, allelic data Ex.PW10/B. 20 PW20 Inspector K.P. Malik, IO Qua investigation conducted by him.
9. After completion of prosecution evidence, statements of both accused Kishore and Pankaj have been recorded u/s 313 CrPC, wherein they have denied the case of prosecution and claimed that they have been falsely implicated in the present case. However, accused Kishore chose to lead evidence in defence.
10. Accused Kishore (A-1) has taken the following plea in his statement u/s 313 CrPC:-
It is a false case. After missing of deceased I alongwith father of the deceased started searching the deceased. I also got printed pamphlets and got pasted and distributed the same in the area. I also used to visit the SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 8 of 69 home of the deceased for the purpose of making inquiries qua search of deceased. Once I went to the house of deceased and I was sitting with mother of the deceased and was making inquiries about the deceased, suddenly she started crying and put her head on my shoulder and I was consoling her, in the meanwhile father of the deceased entered in the house and raised suspicion on me and due to which he falsely implicated me in the present case in connivance with I.O Inspector K.P Malik.
11. In defence, DW1 Ankush Dabas was examined.
12. I have heard ld. Addl. PP for the State and ld. Counsels for the accused persons and have carefully gone through the record.
13. Ld. Addl. PP for the State has submitted that since there was not sufficient evidence, therefore, the investigating agency did not arrest the accused persons initially. He has further submitted that Inspector Puran Pant has also made sincere efforts to solve out the case. He has further submitted that on 15/03/2014, the case was transferred to Inspector K.P. Malik, who himself duly interrogated the suspected persons. In case the police wanted to falsely implicated the accused persons, they would have been arrested earlier. He has further submitted that on 12/04/2014, witness Roop Kishore, who had seen the deceased with accused Pankaj (A-2) on motorcycle, both the accused were interrogated and arrested in the present case. He has further submitted that the testimony of PW2 Roop Kishore is credible. Ld. Addl. PP for the State has further submitted that accused Kishore (A-1) always remained with the father of complainant. He has further submitted that accused persons are not visible in the photographs or videography as the basic purpose of the crime team was to take photographs and SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 9 of 69 videograph the spot and not the persons present at the spot. He has further submitted that recovery of dead body, uniform of deceased and other articles was effected pursuant to disclosure statements of the accused persons. He has further submitted that no question was put to the concerned doctor that bones were of some other person and the skull was of some other person & no such thing has come in the statement of Dr. Bhim Singh, who had conducted postmortem on the body of the deceased. He has further submitted that prosecution has fully established its case beyond all reasonable doubts against all the accused persons.
14. On the other hand, ld. Counsels for the accused persons have stated that prosecution has failed to prove its case beyond all reasonable doubts. Ld. Counsels have further submitted that victim child Rahul (since deceased) went missing on 14/08/2012, whereas the missing report was lodged by father of deceased on 15/08/2012 vide DD no. 18A and as such there is delay of one day in lodging the missing report by PW7 and no one was suspected in the initial version of PW7. Ld. Counsels have further submitted that investigation was initially entrusted to PW15 ASI Chand Singh and thereafter to PW18 SI Jitender Joshi and on 13/09/2012, supplementary statement of PW7 Ram Kumar was recorded after a substantial delay of one month, wherein he alleged a vague suspicion qua accused Kishore, Pankaj and Avniket that they must be knowing about the whereabouts of his son as they are supposedly hiding something from him. They have further submitted that on the same day i.e. on 13/09/2012, 2 nd supplementary statement of PW7 u/s 161 CrPC was recorded, wherein he alleges and further raises suspicion on both the accused and Avniket as they used to roam together and further alleged that his wife's jewellery is also missing from the past 5 months and that his son used to spend a lot of time with them. Ld. Counsels have further submitted that investigation agency made every possible effort to trace the missing SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 10 of 69 boy Rahul and interrogated the suspected persons including accused Kishore and Pankaj but could not find any evidence against them and they were let off after lengthy interrogation. Ld. Counsels have further submitted that thereafter the investigation of the case was transferred to Special Staff, outer District on 01/03/2014 as per PW20 Inspector K.P Malik and in the entire charge-sheet there is no mention of any date with respect to transfer of the case nor there is any mention as to how the case was entrusted or marked to PS Special Staff. Ld. Counsels have further stated that on 12/04/2014, during the course of investigation, Inspector K.P. Malik interrogated Roop Kishore who had lastly seen the missing boy Rahul (since deceased) with accused Pankaj on a motorcycle on 14/08/2012. Ld. Counsel for accused Kishore (A-1) has further submitted that last seen witness did not allege anything against accused Kishore (A-1). Ld. Counsels have further submitted that there is unexplained delay of 20 months in recording the last seen witness u/s 161 CrPC and alleged recovery of incriminating case property. Ld. Counsel for accused Kishore (A-1) has submitted that on joint pointing out memo of both the accused dated 15/04/2014, skeleton including skull and 103 bones and clothes of missing child Rahul (since deceased) were allegedly recovered. Ld. Counsels have further submitted that the alleged recoveries do not find any mention in the disclosure statement and same are not in consonance and in pursuant to original disclosure statement dated 14/04/2014, which shows that the same have been planted in order to falsely create evidence against the accused persons and subsequently their supplementary disclosure statements have been recorded. Ld. Counsel for accused Kishore (A-1) has further argued that PW12 Ankur who is alleged to have stated that accused Kishore (A-1) had sold him jewellery on 01/08/2012, had turned hostile and did not support the case of prosecution. Ld. Counsel has further argued that even if the case of the prosecution is considered to be gospel of truth, though not admitted, there is nothing on record in the form of admissible evidence thereby establishing even a SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 11 of 69 distant link of accused Kishore (A-1) ever seen in the company of the victim Rahul. Ld. Counsels have further argued that there are material contradictions in the testimony of PW7 Ram Kumar Sharma before the Court and his statements u/s 161 CrPC & other prosecution witnesses qua the accused persons and recoveries effected and they go on to show that the recoveries were not effected in pursuant to any disclosure statement & statement u/s 161 CrPC. They have further submitted that there are material contradictions in the testimonies of PW2 & PW7, which casts a clear doubt upon the case of the prosecution. Ld. Counsel for accused Kishore (A-1) has submitted that motive to falsely implicate the accused Kishore (A-1) is very well stands substantiated from the cross-examination of PW7 Ram Kumar Sharma, wherein it has surfaced that PW7 for the first time met with the accused two days after his son went missing and accused Kishore had been a helping hand while trying to trace his son through printing of pamphlets, accused developed talking terms with PW7' wife and accused was found present at his home once or twice in his absence and PW7 objected to the same being annoyed with the way they were talking to each other and PW7 objected to such kind of a relationship and quarreled with the accused after seeing him in the company of his wife and as such he formalized and pre-planned to get rid of the accused by falsely implicating him in the present case. Ld. Counsel has further argued that PW14, brother of PW7, has not given any plausible reason for raising suspicion on accused Kishore and has deposed at the instance of PW7 & he is an interested witness. Ld. Counsels have further submitted that PW2 Roop Kishore and PW7 Ram Kumar Sharma both were known to each other as they were residing in the same locality and still it is unbelievable that PW2 did not disclose or state anything with respect to last seen straight for a period of 20 months. Ld. Counsels have further submitted that alleged recovery of skull, bones and uniform of deceased cannot be attributed to the accused persons as they same have been effected after a substantial delay of 20 months and the place of alleged recovery was SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 12 of 69 accessible to all and there is not even a distant link to connect the accused persons to the said recovery. They have further submitted that PW17 ASI Jagdish and PW20 Inspector K.P. Malik have stated in their cross examination that the place where skeleton was recovered was open place of nala and accessible to all. Ld. Counsels have further submitted that there are material contradictions in the testimonies of witnesses qua the seizure memo dated 15/04/2014 and 18/04/2014. They have further submitted that in the entire photography and videography, the accused persons are not seen. Ld. Counsel for accused Kishore (A-1) has submitted that alleged recovery of bag and music player is not in pursuant to any disclosure statement or statement of any witness u/s 161 CrPC and rather the same had already been seized by the IO at the instance of PW7 and in the absence of accused. He has further submitted that no site plan of the place of recovery of bag and music player is on record, nor the same is on the pointing out of accused Kishore or at his instance and the same have been planted upon the accused. He has further submitted that there is no public witness to who was joined in the investigation at the time of recovery. There is no videography or photography of alleged recoveries and PW Ankur Sharma turned hostile and not supported the case of prosecution and denied having made any statement to police. Ld. Counsel has further submitted that there is no TIP proceedings nor CDRs of accused persons are available on record, though the prosecution has alleged that CDRs were collected, but the same is not on record and PW18 h as claimed that he might have given the CDR of accused Kishore to the next IO and IO PW20 Inspector Malik has stated in the cross-examination that he does not remember whether SI Jitender Joshi had obtained the CDR of the accused persons prior to marking of file to him and the same were available on record. He has further submitted that there is no time, place & date is mentioned on photographs made part of charge-sheet & no certificate u/s 65B of Evidence Act has been placed on record qua the videography & photographs. Ld. Counsels SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 13 of 69 have further submitted that there are material contradictions in the testimonies of police witnesses. He has further submitted that PW16 Inspector Samar Pal has stated in his cross-examination that none of the police official was sent to the spot on 14/04/2014, whereas the death report substantiates that the dead body had already been recovered on 14/04/2014 which goes to show that the recovery was effected prior to recording of disclosure statements. They have further submitted that there is material contradiction qua putting of seal on pullanda of skeleton. Ld. Counsel for accused Kishore (A-1) has further submitted that only material evidence against the accused Kishore (A-1) is the disclosure statement which is by itself an inadmissible piece of evidence in the eyes of law by virtue of Section 27 Evidence Act. He has further submitted that cause of death in the subject case is not substantiated and the same could not be ascertained and the same could not be ascertained even after deposition of the prosecution witnesses thereby casting a clear and reasonable doubt with respect to cause of death, which could be suicide, natural death, unnatural death or homicidal or non-homicidal. In support of his arguments, ld. Counsel for accused Kishore (A-1) has relied upon the following judgments:-
i) Rajendra Eknath Apugade & Anr. Vs The State of Maharashtra & anr, dated 06/10/2020, Crl. Appeal 113 of 1996 of Hon'ble Bombay High Court.
ii) Ganesh Bhavan Patel Vs State of Maharashtra 4 SCC 371.
iii) Sunder Paswan & Ors. Vs State of NCT of Delhi, dated 31/05/2018,MANU/DE/2098/2018.
WITNESSES QUA LODGING OF MISSING REPORT OF RAHUL (SINCE DECEASED)
15. PW7 Ram Kumar Sharma is the father of deceased Rahul. He deposed that on 14/08/2012, his son Rahul Kumar (since deceased), aged about 14 years, went to Jain Mandir School, G.T. Karnal Road, Nangli Puna, Delhi, from SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 14 of 69 the house after wearing the school dress with school bag and neither Rahul reached the school nor returned to the house. He further deposed that he tried to search his son Rahul, but without success and ultimately on 15/08/2012, he went to PS Alipur, Delhi and lodged missing report in respect of his son vide DD no. 18A Ex. PW5/A, on which, the FIR of the present case was registered. PW7 has proved the photograph of his son Rahul (since deceased) as Ex. PW2/A which was given by him to the police.
15.1. PW7 further deposed that they tried to search for Rahul and efforts were made for the search of Rahul and he had provided the small and big photographs of his missing son Rahul (since deceased) to the police and the matter was also published in the newspaper and through Doordarshan, but all in vain. He further deposed that pamphlets were also printed and same were pasted in the area, but no clue of Rahul was found. PW7 has correctly identified accused Kishore (A-1) and Pankaj (A-2) before the Court stating that they are the friends of his deceased son Rahul, who used to roam around with him in the area and his deceased son Rahul had also told him about their friendship, besides the aforesaid two accused persons, who are much older to his son deceased Rahul was having friendship with one Avniket, who was same age group of his son deceased Rahul. PW7 further deposed that after missing/kidnapping of his son, he found the jewellery lying in their house is also missing, which was weighing about 80/90 grams. He further deposed that he does not have the bill of the said jewellery. He further deposed that his deceased son Rahul was fond of music and toy cars and used to keep music player system with him and toy cars and used to carry them with him to the school also in his school bag. He further deposed that he told the IO about the aforesaid facts and raised suspicion on both the accused persons Kishore and Pankaj, present in the Court, and Avniket also.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 15 of 6915.2. PW14 Ram Avtar Sharma is the elder brother of PW7 Ram Kumar Sharma. He deposed that Rahul (since deceased) son of his younger brother Ram Kumar went missing and they tried their best to search him. They came to know that accused Kishore and Pankaj both present in Court (correctly identified) along with one Avniket used to roam along with Rahul. He further deposed that Avniket was studying in he school of Rahul. He further deposed that they raised suspicion against them to the police for the missing of Rahul as they were not satisfactorily explaining or replying the queries.
WITNESSES TO INVESTIGATION
16. As per case of prosecution, the present case was got registered on the basis of aforesaid missing report vide DD no. 18A dated 15/08/2012 Ex. PW5/A, which was recorded by PW5 HC Baljeet Singh and who got recorded the FIR of the present case Ex. PW5/C through computer operator Sumit Kumar. After registration of FIR, the investigation of the present case was entrusted to ASI Chand Singh (PW15). PW15 ASI Chand Singh has deposed that on 15/08/2012, he met the complainant Ram Kumar, flashed WT message at NCRB at Doordarshan for getting any information about the kidnapped boy Rahul Kumar Sharma (since deceased). He further deposed that on 05/09/2012, he interrogated suspect Kishore (A-1) and Pankaj (A-2), present in the Court (correctly identified) and tried his best to trace the missing boy Rahul, but could not succeed. He further deposed that thereafter the further investigation was assigned to SI Jitender Joshi and he handed over the file to MHC(R).
16.1. PW18 SI Jitender Joshi has deposed that on 12/09/2012, investigation was handed over to him and he collected the file from MHC(M) and during investigation, he recorded statement of complainant Ram Kumar Sharma and Ram Avtar Sharma on 13/09/2012 and also interrogated suspects Kishore, SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 16 of 69 Pankaj, Avniket, Deepak and Nawab. He has correctly identified accused Kishore & Pankaj present in the Court. PW18 further deposed that he also made request for lie detector test of accused Kishore and Pankaj, who refused the same in the Court. He further deposed that he also collected the call details of mobile phones of accused Pankaj, Kishore, Avniket and deceased Rahul. He further deposed that on 27/04/2013, he recorded statement of Ravinder u/s 161 CrPC and on 30/04/2013 he recorded statement of Manoj Kumar u/s 161 CrPC & thereafter the investigation was transferred to Special Staff.
16.2. PW4 Ravinder has deposed that on 10/08/2012, accused Kishore came to his home at night time and asked him to accompany him with his Tata 407 as his Esteem car no. DL-5CB-1997 had been damaged from stones after entering into the fields and he accompanied accused Kishore to the fields of Shahpur Gadi and with the help of his Tata 407, he pulled out the aforesaid Esteem car and parked he same on road. He further deposed that he towed away the aforesaid Esteem car to a mistri at Bhorgarh on the asking of accused Kishore and the said mistri asked about Rs. 20,000/-/25000/- for repairing and on this, accused Kishore (A-1) offered to sell his said car, on which the said Mistri offered to give about Rs. 20,000/- and thereafter he (PW4) asked accused Kishore to wait for some time so that more amount could be get on sale of that car. PW4 further deposed that he contacted Manoj (PW1) through Jaggi Mistri and after finalizing with Manoj for Rs. 26,500/-, he asked accused Kishore (A-1) to sell the car to him (PW4) for Rs. 25,000/- and thereafter he told accused Kishore to hand over him full amount after two days. PW4 further deposed that he parked the said car at the workshop of Kale mistri at Ramdev Chowk, Narela. He further deposed that Manoj (PW1) handed over to him Rs. 26,000/- and took away the said Esteem car after executing documents Ex. PW1/A (colly). He further deposed that copy of RC of the aforesaid Esteem car was also handed over to Manoj (PW1), by which the owner SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 17 of 69 was shown as Bijender s/o Samay Singh, but the said Esteem car was in the possession of accused Kishore, who used to drive it. PW4 further deposed that on 13/08/2012, he handed over Rs. 23,000/- to accused Kishore and hold Rs. 2000/- because of pendency of challan etc. He has produced the documents Ex. PW4/A executed from accused Kishore and has deposed that the original of the same is not traceable and there is no possibility of tracing out the same.
16.3. PW1 Manoj Kumar has deposed that on 13/08/2021, he purchased one car no. DL-5CB-1997 make Esteem, which was in damaged condition from Ravinder Singh (PW-4) for a sum of Rs. 26,500/- through Kale Mistry having his junk shop at Ramdev Chowk qua which receipt was executed. He further deposed that he sold the aforesaid car to Anil Kumar for a sum of Rs. 27,000/- on 13/08/12. He has proved the copies of the documents executed at the time of purchase & sell of the car as Ex. PW1/A colly.
RECORDING OF STATEMENT OF LAST SEEN WITNESS
17. PW20 Inspector K.P. Malik has deposed that on 10/03/2014, he was posted at Special Staff, Outer District as Inspector and on that day, investigation of this case was assigned to him & he collected the case file from previous IO Inspector Puran Pant. He further deposed that on 12/04/2014, he recorded the statement of witness Roop Kishore, who had seen Rahul (since deceased) going on a motorcycle along with suspect Pankaj (A-2 herein).
WITNESS TO LAST SEEN EVIDENCE
18. PW2 Roop Kishore has deposed that on 14/08/2012, he was present at Budhpur bus stand waiting for his friend Sattu. He further deposed that he was doing the work of flower decoration and on that day he left on his motorcycle at about 7.00 a.m. in connection with the preparation of flower decoration on the SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 18 of 69 occasion of 15th August at Chhatarsal Stadium. He further deposed that when he was standing at Budhpur bus stand, he saw accused Pankaj (A-2) along with Rahul (since deceased) going on a motorcycle towards Alipur. PW2 further deposed that Rahul (since deceased) was in school dress and was having school bag and the motorcycle was driven by accused Pankaj (A-2) and Rahul was pillion rider and both were without helmet. He further deposed that he had previously also seen them in the village together riding on motorcycle. He further deposed that police recorded his statement on 12/04/2014. PW2 has correctly identified accused Pankaj (A-2) before the Court and the photograph Ex. PW2/A of victim Rahul Kumar.
ARREST OF ACCUSED KISHORE & PANKAJ
19. PW20 Inspector K.P. Malik has further deposed that police was having suspicion on two persons namely Kishore and Pankaj. He further deposed that on 14/04/2014, both the suspects namely Kishore and Pankaj were called at the office of Special Cell, Outer district for interrogation and during interrogation, both the suspects disclosed that Rahul has already been murdered by them. He further deposed that both accused Kishore and Pankaj were arrested in the present case. He has proved the arrest memo and personal search memo of accused Kishore Ex. PW16/A and Ex. PW16/C respectively. He further deposed that during interrogation, accused Kishore made disclosure statement Ex. PW16/E. He has further proved arrest memo and personal search memo of accused Pankaj Ex. PW16/B and Ex. PW16/D respectively and further deposed that during interrogation, accused Pankaj made disclosure statement Ex. PW16/F. PW20 has also correctly identified both these accused persons before the Court. PW20 further deposed that as it had become night, so spot where accused had disclosed to commit murder of Rahul (since deceased), could not be visited on 14/04/2014 and on 15/04/2014, accused Kishore and Pankaj led the police team SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 19 of 69 to that particular spot near a Nala near Radio Station, Village Khampur, Delhi. He further deposed that some bones and clothes were found lying at that spot and in the meantime, complainant Ram Kumar (PW7) had also reached there. He further deposed that the school uniform which was one pant along with one school belt, one T-shirt, one pair of socks and one elastic of underwear were found at the spot, which were tied with the human bones. He further deposed that school uniform was identified by father of the victim Ram Kumar Sharma (PW-7). PW20 further deposed that crime team was called at the spot and crime team came at the spot and took the photographs and videographs of the spot and also inspected the spot. He further deposed that crime team SI Anil Kumar (PW9) handed over the crime team report to him and he recorded his statement and also of HC Shiv Om (PW3), photographer of the crime team.
19.1. PW9 Inspector Anil Kumar has proved his crime team report Ex. PW9/A & PW3 HC Shiv Om, photographer, Crime team has proved the photographs Ex. PW3/B (colly) taken by him and negatives thereof Ex. PW3/A (colly) and CD of the videography done by him as Ex. PW3/C. RECOVERY OF BONES INCLUDING SKULL & UNIFORM OF DECEASED
20. PW20 Inspector K.P. Malik has further deposed that he inspected the spot and prepared site plan Ex. PW20/A. He further deposed that on counting, total 103 bones including one skull were found at the spot. He further deposed that aforesaid uniform and said bones including skull were kept in two separate plastic bags, sealed with the seal of "SP" and were taken into possession through pointing out cum seizure memo Ex. PW7/A, which were handed over by him to HC Nahar Singh along with seizure memo, who took the same to PS Alipur and deposited the same with MHC(M). He further deposed that he recorded the SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 20 of 69 statement of Ram Kumar Sharma, father of deceased. PW20 further deposed that thereafter they had taken both the accused Kishore and Pankaj to the hospital and after their medical examination, they both were produced before concerned ld. Duty MM, who granted two days police custody remand of both the accused.
20.1. PW7 Ram Kumar (father of deceased) has identified clothes of his deceased son as Ex. P1 (colly) & femur bone as Ex. P2.
APPREHENSION OF JCL "GP"
21. PW20 Inspector K.P. Malik has further deposed that thereafter they had taken both the accused to the office of Special Staff and on his direction and after seeking permission from the senior officers, SI Vikram (PW10) along with other police officials had taken both accused Kishore and Pankaj to Ludhiana, Punjab in a government vehicle to apprehend their associate/accused "GP" (JCL) and he recorded statements of witnesses.
21.1. PW10 SI Vikram has deposed that on 15/04/2014, as per the instructions of PW20 IO Inspector K.P. Malik, he along with HC Devender, HC Bijender, Ct Ashok and Ct Karambir along with accused persons Kishore and Pankaj in government vehicle no. DL-2C-AP-7071,Maruti Ertiga went Ludhiana, Punjab, were on 16/04/2014, at about 5.00 a.m., they reached at Welcome Guest House near Ludhiyana ailway station, where from the STD of Welcome Guest House, accused Pankaj (A-2) was made to talk on the mobile phone number 828832736 of "GP" (JCL), who was called near the said guest house & at about 8.00 a.m., the said JCL was apprehended at the instance of both the accused persons and they all thereafter returned to Delhi along with both accused Pankaj and Kishore along with JCL and handed over them to the IO.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 21 of 6921.2. PW20 further deposed that on 16/04/2014, SI Vikram (PW10) along with staff and both accused Pankaj and Kishore had come to the office of Special Staff along with third accused "GP" (JCL) and handed over the custody of all the three accused to him. PW20 further deposed that he interrogated "GP"(JCL) and apprehended him in the present case and prepared documents relating to his arrest. He further deposed that he also recorded disclosure statement of JCL Ex.PW16/I and after medical examination, all the three accused were kept in the lock-up. He further deposed that he recorded statements of SI Vikram (PW20), SI Samarpal (PW16) and ASI Jagdish (PW17).
21.3. PW20 further deposed that on 17/04/2014, "GP" (JCL) was taken out from the lock-up, who had taken them to the place of incident and had shown the place where he along with his associates had murdered and thrown the body of deceased Rahul qua which pointing out memo Ex. PW7/B was prepared by him. He further deposed that thereafter they came back to office of Special Staff, where one Munna identified "GP"(JCL). He further deposed that he recorded the statements of witnesses and produced all the three accused before the concerned ld. MM and "GP"(JCL) was sent to JC and further one day police custody remand of accused Pankaj and Kishore was obtained.
21.4. PW14 Ram Avtar Sharma (elder brother of PW7) has deposed that on 17/04/2014, he along with with Munna, STD/PCO owner reached special staff office Rohini, to know as to which of the accused whom the police had apprehended, had called on 16/08/2012 to him (PW14) by pretending conductor. He further deposed that Munna identified JCL "GP" as the one who had called from his PCO on 16/08/2012, for which phone, he (PW14) on that day after one hour, had visited PCO situated at Azadpur bus stand, Ring Road to make inquiry as to who had made that call to him.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 22 of 69RECOVERIES EFFECTED FROM THE RESPECTIVE HOUSES OF ACCUSED KISHORE & PANKAJ
22. PW20 Inspector K.P. Malik further deposed that on 18/04/2014, both accused Pankaj and Kishore were taken out from the lock-up and he along with staff had taken both the accused to the house of accused Kishore (A-1) at Alipur and at that time complainant Ram Kumar (PW7) was also with them. He further deposed that during the proceedings, in one room of the house of accused Kishore (A-1) one school bag and one D.V./MP4/MP5 player were recovered, which were identified by complainant Ram Kumar belonging to his deceased son Rahul. PW20 further deposed that PW Ram Kumar identified the music player as the one which was gifted by his elder brother Ram Avtar Sharma to deceased Rahul on his birthday. He further deposed that both bag and DV player were taken into possession through seizure memo Ex. PW7/C. 22.1. PW20 further deposed that after that, they all had gone to the rented room of the accused Pankaj (A-2), which was situated in the same locality and from search of the room of accused Pankaj (A-2), five toy cars were recovered, which were identified by Ram Kumar (PW7) as the ones belonging to his deceased son Rahul & the same were taken into possession vide seizure memo Ex. PW7/D. 22.2. PW7 Ram Kumar has identified one black colour bag and music player as Ex. P3 (colly) and five toy cars as Ex.P4.
RECOVERY OF MOTORCYCLE USED IN THE COMMISSION OF OFFENCES FROM ACCUSED PANKAJ (A-2)
23. PW20 Inspector K. P. Malik further deposed that on inquiry from accused Pankaj (A-2), it was revealed that motorcycle used in the commission of SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 23 of 69 offence has been kept in his house and then they again took accused Pankaj (A-2) to his house, who got recovered motorcycle bearing registration no. DL-8SNC- 2227, which was taken into possession vide seizure memo Ex. PW17/A. He further deposed that thereafter they came back to their office and the case property was sent to Malkhana of PS Alipur.
23.1. PW8 Ashok Kumar, Clerk, Motor Licensing Office, Rohini Zone-II, Sector-16, Rohini, Delhi, has proved the details of aforesaid vehicle as Ex.PW8/B and information qua the same as Ex. PW8/C. As per PW8, the original owner of the aforesaid motorcycle was Manish Kumar from whom the said motorcycle was transferred in the name of Anil Kumar and on 02/03/2012, the said motorcycle was transferred in the name of Pankaj, the present owner.
WITNESS QUA SELLING OF GOLD JEWELLERY ARTICLES BY ACCUSED KISHORE(A-1)
24. PW20 Inspector K.P. Malik further deposed that one Ankur Verma, jeweller, was called in the office and he was inquired in the presence of both the accused persons and said Ankur Verma had identified accused Kishore (A-1) as the same person, who had sold the jewellery articles amounting to Rs. 2.5 lakhs to him in the month of August 2012 and PW20 recorded statement of said Ankur Verma in this regard and also of police officials and thereafter both the accused were produced before the Court and were sent to J.C. 24.1. Aforesaid Ankur Verma has been examined as PW12. He has deposed that at present, he is working in the garment shop in Gandhi Nagar and earlier he was running a jewellery shop in the name and style of Mahalaxmi jewellers at Old Shani Bazar Chowk, Alipur, Delhi. He has further deposed that he does not remember the date and month, however, in the year 2012 some police SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 24 of 69 officials brought accused Kishore (A-1) to his shop and made inquiries from him whether Kishore (A-1) had sold any jewellery to him at any point of time to which he denied. He further deposed that thereafter, police officials along with accused had left his shop after inquiring his name and other particulars and that he does not know anything else except the above facts.
24.2. Since PW12 Ankur Verma has resiled from his previous statement, ld. Addl. PP for the State has sought permission to cross-examine him and during cross-examination, said PW has deposed that he does not know whether police ever recorded his statement or not. However, he has voluntarily stated that police made inquiries from him. He has denied that he had stated in his statement Mark PW12/A to the police that near to their shop, father of accused Kishore (A-1) was also running a shop or that due to this fact they had a good intimacy with the family members of Kishore and they were on visiting terms. He has further denied that that they used to make jewellery for the family of Kishore and in the month of August 2012, accused Kishore (A-1) came to his shop with a huge quantity of jewellery to solve them. He has further denied that he checked the purity of jewellery and it was came to be of 80% pure or that he (PW12) had fixed the price of jewellery according to its purity. PW12 further denied that after deducting 10% of profit, he offered to pay Rs. 2.5 lacs to Kishore (A-1) for said jewellery to which Kishore agreed and he (PW12) paid a sum of Rs. 2.5 lacs to accused Kishore (A-
1). He further denied that he did not doubt Kishore as he was knowing him and his family members. He further denied that Kishore was previously involved in any criminal case and now he came to know that Kishore procured those jewellery from Rahul (since deceased) and killed him. In this regard, PW12 was confronted with portions A to A1, B to B1, C to C1 and D to D1 of his statement Mark PW12/A and he denied having said so & has denied all such suggestions put to him during cross-examination by ld. Addl. PP for the State.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 25 of 69SENDING OF SEALED PULLANDA OF SKULL AND BONES TO MORTUARY OF BJRM HOSPITAL FOR THE PURPOSE OF CONDUCTING POSTMORTEM.
25. PW20 Inspector K.P. Malik has further deposed that on 23/04/2014, the sealed pullanda of skull and bones were obtained from MHC(M) and were taken to mortuary of BJRM hospital and in the hospital, he prepared inquest papers Ex. PW20/B and made request vide his request application Ex. PW20/C to the concerned doctor for conducting postmortem of the abovesaid skull and bones. PW11 HC Rajender has also deposed that on 23/04/2014, he collected the sealed pullanda containing bones of deceased Rahul from MHC(M) vide RC no. 58/21/14 and reached at BJRM hospital mortuary & met with PW20 IO Inspector K.P. Malik.
WITNESS TO POSTMORTEM
26. PW4 Dr. Bhim Singh has deposed that on 23/04/2014, he was posted at BJRM hospital, Jahangir Puri, Delhi as In-charge Mortuary and on that day, he had conducted examination of bones alleged to be of deceased Rahul s/o Ram Kumar Sharma, aged about 14 years, male, brought by Inspector K.P. Malik (PW20) of Special Staff of Outer District, Delhi, with the alleged history of missing of the said boy on 14/08/2012 vide case FIR no. 264/12, u/s 363/302/201/34 IPC, PS Alipur, bones recovered on 14/04/2014 night. He further deposed that after examining the aboveaid bones, he gave his opinion that cause of death in this case was not possible, recovered bones are of human being and sex was male and time since death was around i.e. more than 1½ year. He further deposed that stature of the bones was approximately 150 cm to 160 cm and age of the victim was around 14 years. He further deposed that after examination, he handed over the femur bone of the deceased for DNA analysis. PW6 has proved the postmortem report as Ex. PW6/A. SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 26 of 69 SEIZURE OF EXHIBITS AFTER POSTMORTEM
27. PW20 Inspector K.P. Malik has deposed that after postmortem examination, the concerned doctor handed over the femur bone of the deceased to him in two sealed plastic container along with sample seal, which were preserved during postmortem, and he (PW20) seized the same vide memo Ex. PW11/A. He further deposed that remaining bones and skull were handed over to the father of deceased for cremation vide receipt Ex. PW7/E. He further deposed that thereafter he recorded the statements of witnesses and the sealed case property was taken to PS Alipur and was deposited in malkhana and subsequently, he obtained postmortem report of the deceased through SI Vikram (PW10). PW11 HC Rajender has also deposed the same facts with regard to handing over of sealed pullanda containing one bone in the plastic jar which was seized vide memo Ex. PW11/A by PW20.
SENDING OF SEALED PULLANDAS TO FSL & TAKING OF BLOOD SAMPLE OF PARENTS OF DECEASED
28. PW20 Inspector K.P. Malik has further deposed that on 29/04/2014, he sent ASI Jagdish (PW17) to FSL & seized femur bone was sent to FSL through HC Rajinder Singh (PW11). He further deposed that parents of the deceased were also taken to FSL by ASI Jagdish (PW17) for the purpose of DNA examination and after that he recorded statements of ASI Jagdish Singh (PW17) and HC Rajinder Singh (PW11).
PREPARATION OF SCALED SITE PLAN OF THE PLACE OF INCIDENT
29. PW20 Inspector K.P. Malik has deposed that on 02/05/2014, he along with ASI Jagdish (PW17) and Inspector Manohar Lal, draftsman (PW13) SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 27 of 69 had gone to the place of incident and on his pointing out, Inspector Manohar Lal inspected the spot and prepared rough notes of the spot and he recorded statements of ASI Jagdish (PW17) and Inspector Manohar Lal (PW13) in this regard. PW13 has proved the scaled site plan Ex. PW13/A which was prepared by him.
RECORDING OF STATEMENT OF FATHER OF DECEASED QUA THEFT OF JEWELLERY ARTICLES
30. PW20 Inspector K.P. Malik has deposed that on 27/05/2014,complainant Ram Kumar (PW7) had come to the office of special staff and gave his statement regarding the theft of jewellery articles from his house and he recorded his statement in this regard.
COLLECTION OF PHOTOGRAPHS & CD OF VIDEOGRAPHY OF THE SPOT
31. PW20 Inspector K.P. Malik has deposed that photographs Ex. PW3/B (colly) and CD of videography Ex. PW3/C of the spot taken by the photographer of crime team were obtained.
31.1. PW20 further deposed that after completion of investigation, challan of this case was prepared and was sent to concerned Court. He further deposed that subsequently DNA report from FSL was collected and was submitted before the Court through supplementary charge-sheet.
31.2. PW10 SI Vikram has deposed that on 07/10/2014, on the instructions of IO Inspector K.P. Malik (PW20), he went to FSL Rohini and collected the FSL report dated 19/08/2014 Ex. PW10/A along with its analysis report Ex. PW10/B along with one sealed exhibit and handed over the report to IO SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 28 of 69 and deposited the sealed exhibit in the malkhana of PS Alipur.
31.3. PW20 has also identified the case property i.e. clothes of deceased Ex. P1(colly), femur bone Ex. P2, black colour bag & music player Ex. P3 (colly), five toy cars Ex. P4 (colly) & photographs of motorcycle bearing registration no. DL-8SNC-2227 Ex. P5/A-1 to A-3. He has also identified the place of incident after seeing the CD Ex. PW3/C played before the Court. PW20 has also correctly identified both the accused before the Court.
31.4. PW16 Inspector Samar Pal has deposed about the investigation conducted in his presence by IO PW20 Inspector K.P. Malik on 14/04/2014, 15/04/2014, 16/04/2014 and 18/04/2014. He has correctly identified the accused Kishore and Pankaj and the aforesaid case property seized in their presence before the Court. As regards the investigation conducted on 14/04/2014 qua the disclosure part of accused Kishore and Pankaj, PW16 has deposed that on 14/04/2014, he was posted as SI Special Staff, Outer district, Sec.1, Avantika, Rohini, Delhi and on that day, he joined the investigation with PW20 Inspector K.P. Malik. He further deposed that suspect Kishore and Pankaj (accused herein) were called by the IO by giving them notice and on their arrival, interrogation was made from them separately. He further deposed that both the accused persons admitted their guilt in the present case and disclosed that they both studied together upto class VI and their houses were nearby. They disclosed that they both roamed usually on motorcycle and were usually short of money and to fulfill their requirement of money they used to have friendship with the small aged boys of well off families. PW16 further deposed that both accused further disclosed that in that process, they met with one boy namely Avniket and through Avniket also made friendship with Rahul (since deceased) and used to roam with him and to impress him made him met with many girls, on one occasion Rahul had quarreled SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 29 of 69 with someone at Alipur Chopal and they had assisted Rahul and threatened the boy who quarreled with Rahul and Rahul started keeping faith on them. PW16 further deposed that both accused further disclosed that they had called jewellery articles of silver and gold from Rahul from his house who once brought one gold chain which they sold for Rs. 50,000/- to a jeweller (Ankur Jeweller Alipur) and out of that Rs. 50,000/-, they disclosed that accused Kishore purchased a Esteem car and that one day Rahul told them that his father got suspicion and to do something and both accused further disclosed that they became afraid that the father of Rahul would get them arrested on the charge of theft and they planned to kill Rahul and fixed the place of murder behind Alipur Radio Station (Khanpur) Pakka Nala and also involved one "G" (JCL) by offering him Rs. 10,000/- in the said plan. PW16 further deposed that both accused further disclosed that they had asked Rahul (since deceased) to bring all jewellery articles of gold and silver from his house and they would also bring some cash and all of them would run away at some distant place and nobody would suspect them for theft. He further deposed that they (both accused) further disclosed that as per the plan on 14/08/2012, accused Kishore with JCL "GP" already reached at Pakka Nala, accused Pankaj reached to near Budhpur Mandir to take Rahul along with him on motorcycle, as per plan Rahul brought all silver and gold articles from his house and accused Pankaj brought Rahul on motorcycle to Pakka Nala where accused Kishore and "GP"(JCL)met them and they all three took Rahul inside the pakka nala and murdered Rahul by strangulating his neck and took out all the jewellery articles from the bag of Rahul and threw the bag.
31.5. PW17 ASI Jagdish has also deposed about the investigation conducted by PW20 Inspector K.P. Malik in his presence 14/04/2014, 15/04/2014, 16/04/2014, 18/04/2014, 29/04/2014 and 02/05/2014. He has correctly identified the accused Kishore and Pankaj and the aforesaid case property seized in his SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 30 of 69 presence before the Court.
WITNESS TO FSL (DNA EXAMINATION) REPORT
32. PW19 Ms. Anita Chhari, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi, has deposed that on 29/04/2014, she was working as SSO at FSL, Rohini, Delhi and on that day, one sealed forensic parcel and two blood samples were received in FSL Rohini and same were assigned to her for DNA examination. She further deposed that said parcels were given exhibits i.e. Ex.1 bone of deceased Rahul, Ex. 2 blood sample of Ram Kumar and Ex. 3 blood sample of Smt. Rajni Sharma & were subjected to DNA isolation. She further deposed that after the DNA examination of the said exhibits, it was found that the source of exhibit 2 and exhibit 3 is the biological father and the mother of Ex. 1. She has proved her detailed report as Ex. PW10/A and allelic data as Ex. PW10/B. DEFENCE WITNESS
33. In support of his defence, accused Kishore (A-1) has produced DW1 Ankush Dabas, who has produced the copy of RTI filed before North Delhi Municipal Corporation, Narela Zone, Delhi, filed by accused Kishore(A-1) along with reply dated 21/02/2017 Ex. DW1/A. The said witness has stated that he is area Malaria Inspector and regular spray used to be done under his supervision in his zone in regular course of his duty.
33.1. In the cross-examination conducted on behalf of ld. Addl. PP for the State, DW1 has admitted that as per abovesaid reply, only use of spray and fumigation for the prevention of malaria and dengue is mentioned and there is no mention of cleaning of drain at page no. 7 of Ex.DW1/A (from portion A to A1 & B to B1) nor any specific schedule of spray and fumigation of the drain is mentioned. He has further admitted that he has not brought any document which can reflect SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 31 of 69 that regular spray and fumigation was ordered by concerned authority as to support the reply of RTI or that he joined the abovesaid office in the year 2017. He has further deposed that he cannot say whether there was regular cleaning, spray and fumigation of the said area prior to his joining in the abovesaid office. He has further admitted that his zone does not belong to the zone mentioned in the RTI.
CIRCUMSTANTIAL EVIDENCE
34. In the present case, there is no eye-witness and whole of the case of prosecution is based on circumstantial evidence. Generally, when there are eye- witnesses to the incident, the Court has to rely upon the veracity of the witnesses to establish the incident, but while dealing with the case based on circumstantial evidence, not only the veracity of the witness but also other points become relevant. Before we proceed further it is necessary to state the requirements in a case based on circumstantial evidence. In this regard, we can rely upon the judgment of Hon'ble Supreme Court in Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. (AIR 1990 SC 79), which have laid down the requirements with regard to circumstantial evidence as under:-
"10.This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 32 of 69 conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra )."
(6 of 22) (CRLDR-7/2020) It has also been held by the Hon'ble Supreme Court in case of Brajendrasingh vs. State of Madhya Pradesh AIR 2012 Supreme Court 1552, as under:-
"There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, 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. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 33 of 69 upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial."
34.1. In Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984: 1984 AIR 1622, 1985 SCR (1) 88, the honorable supreme Court upheld as under:-
"Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 34 of 69 established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 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.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
34.2. Therefore, in a case, which is based on circumstantial evidence, the above-stated requirements need to be established.
34.3. As discussed above that in a case based on circumstantial evidence, the above-stated requirements are to be fulfilled and the facts on which the case is based, has to be cogently and firmly established. After reading the testimonies of the witnesses as well as the other evidence placed on record, the following facts have come before the Court:-
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 35 of 69i)Raising of suspicion on accused Kishore, Pankaj & one Avniket by Ram Kumar Sharma (father of deceased).
ii) There is last seen evidence in the form of testimony of PW2 Roop Kishore qua accused Pankaj (A-2).
iii) Arrest of accused persons & recording of their disclosure statements.
iv) Recovery of dead body i.e. bones & skull of deceased along with clothes of deceased at the instance & pointing out of both the accused persons.
v) Recovery of one school bag and one D.V./MP4/MP5 player of deceased from the house of accused Kishore (A-1).
vi) Recovery of five toy cars from the house of accused Pankaj (A-2).
vii) Recovery of motorcycle bearing registration no. DL-8SNC-2227 from the house of accused Pankaj (A-2) used in the commission of offence.
viii) Factum of selling of gold jewellery by accused Kishore (A-1) in the form of testimony of PW12 Ankur Verma.
ix) Cause of death & Time of death of deceased
ix) Matching of DNA of deceased with the blood sample of his parents.SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 36 of 69
35. Now, it is to be seen whether the aforesaid material facts have been fully proved on record or not.
RAISING OF SUSPICION ON ACCUSED KISHORE & PANKAJ & ON ONE AVNIKET BY RAM KUMAR SHAMA (FATHER OF DECEASED)
36. As per case of prosecution, on 13/09/2012, Ram Kumar Sharma (PW7) supplementary statement u/s 161 CrPC to the police, wherein he claimed that accused Kishore, Pankaj (both accused) and Avniket were having friendship with his son Rahul for the last three month and Kishore & Pankaj were much older than his son and Avniket was of the age of Rahul and was studying with Rahul in Jain Mrigali School. He further stated that "mujhe in ladko par shak hai kee wah mere bete Rahul ke baare main jante hain kyonki yahi uske saath ghoomte phirte the or uske kidnap hone ke pehle hee in logo ka milna julna bada tha. Meri patni ne apni kuch jewellery ek steel ke tiffin box main bed ke neeche jameen par rakhi thee jo bhee gayab hai parntu Rahul ke jaane se pehle kareeb 3-4 mahine se hamne jewellery par dhyan nahi diya tha. Jo mujhe ab pata chala hai kee wah in ladko ke saath kafi rupay kharch karta tha, uprokt teeno ladko se karibi poochtach kee jaye."
36.1. PW7 Ram Kumar Sharma, father of deceased, has claimed in his testimony before the Court that both the accused are the friends of his deceased son Rahul and they used to roam around with him in the area & his son Rahul (since deceased) had also told him about their friendship. He further claimed that besides the aforesaid two accused persons, who are much older to his son deceased Rahul, his son was also having friendship with one Avniket, who was of same age group of his son Rahul (since deceased). PW7 further claimed that after missing/kidnapping of his son, he found the jewellery lying in their house is also SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 37 of 69 missing, which was weighing about 80/90 grams. He further claimed that his deceased son Rahul was fond of music and toy cars and used to keep music player system with him and toy cars and used to carry them with him to the school also in his school bag. He further claimed that he told the IO about the aforesaid facts and raised suspicion on both the accused persons Kishore and Pankaj, present in the Court, and Avniket also.
36.2. Ram Avtar Sharma, elder brother of PW7 Ram Kumar Sharma has also made supplementary statement u/s 161 CrPC on 13/09/2012,wherein he raised suspicion that accused Kishore, Pankaj and Avniket must be having knowledge about Rahul and they were concealing something and enquiry be made from them. In his testimony before the Court, PW14 Ram Avtar Sharma (elder brother of PW7 Ram Kumar Sharma) claimed that they came to know that accused Kishore and Pankaj along with one Avniket used to roam along with Rahul & Avniket was studying in he school of Rahul. He further claimed that they raised suspicion against them to the police for the missing of Rahul as they were not satisfactorily explaining or replying the queries.
36.3. Victim Rahul (since deceased) went missing on 14/08/2012 and missing report was lodged on 15/08/2012. Both PW7 and PW14 made supplementary statements u/s 161 CrPC on 13/09/2012 raising suspicion against both the accused and one Avniket i.e. after about one month. However, in his cross-examination, PW7 Ram Kumar has stated that he does not remember if police had given any notice to him on 13/09/2012 for joining the investigation or if he had gone to PS on 13/09/2012 or met any police official on that day. He further stated that he cannot tell as to where he was on 13/09/2012 and what was the course and activities of his day. For arguments sake, if aforesaid supplementary statements are assumed to be true, then both these PWs have simply claimed SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 38 of 69 that both the accused, who were much older than his son, were having friendship with Rahul (since deceased) and they used to roam with the deceased. First of all, if PW7 and PW14 were having knowledge about any such fact, then why they waited for about a month in disclosing any such suspicion upon both the accused and did not tell police earlier that Rahul (since deceased) used to roam with both the accused and enquiry be made from them. They did not disclose as to what was the source of their information that Rahul used to spend money on both the accused. Had both these witnesses were having any such information, they would have told about the same to the police earlier, which is not the case herein. Both these PWs have taken contradictory stands in their cross-examination about both the accused persons. In the cross-examination conducted on behalf of accused Kishore (A-1), PW7 Ram Kumar Sharma has stated that prior to missing of his son, he was not knowing accused Kishore (A-1) and first time he met him after two days of missing of his son at his (PW7's) home. He has voluntarily claimed that his son had told him about the accused Kishore who was having friendship with him. He further claimed that he never seen accused Kishore (A-1) in the company of his son. He further deposed that after missing of his son, he got pasted and distributed the pamphlets alongwith the photo of his son in the area & the pamphlets were got printed by accused Kishore, who held him got pasted and distributed in the area & 3 phone numbers were got printed on the aforesaid pamphlets including the phone number of accused Kishore (A-1). He also claimed that Kishore (A-1) used to visit his home for the purpose of searching of his son and he was also on talking terms with his wife. He has denied the suggestion that his wife had made telephonic call to accused Kishore (A-1) and requested him to help us in searching their son. He has voluntarily stated that his wife had not made any telephonic call but the said call was made by his niece namely Meenu. He further claimed that once or twice when he came back to his house, he found accused Kishore (A-1) present at his home along with his wife. However, he has SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 39 of 69 voluntarily stated that he has not seen accused Kishore (A-1) in the company of his wife. He further claimed in his cross-examination that first time, when he lodged missing report, he did not make any allegation against anybody and did not suspect anyone in the missing of his son. PW7 further stated in his cross- examination that after about 7 or 10 days of missing of his son, he raised the suspicion to the police about the involvement of the accused Kishore (A-1) in the missing of his son and his statement was recorded by the police in the PS and subsequently statement was recorded at his home and both the said statements were given to the police within 7 or 10 days. However, there are no such supplementary statements available on record given by PW7 Kumar Sharma within 7 or 10 days of missing of his son Rahul except dated 13/09/2012 and subsequent supplementary statements. PW7 has further stated in his cross- examination that he never talked to Kishore in any matter and has voluntarily stated that Kishore never visited his home nor he was on visiting terms to the house of accused Kishore (A-1). He further stated that he got suspicion on accused Kishore (A-1 because he used to tell lie to him and he got suspicion on Kishore on his first lie because he told him that Rahul (since deceased) had purchase a mobile of Rs. 70,000/- from one Nawab and when he contacted Nawab, the value of the mobile phone was not found Rs. 70,000/-. He has further stated that he had not told to the police in any of his statement about any fact with regard to Nawab and any mobile phone, however, police official themselves called one Nawab at PS and interrogated him, but that Nawab had denied that he had sold any mobile phone to Rahul (since deceased) and he trusted the version of Nawab, who was not at all known to him prior to missing of his son. PW7 has further stated in his cross-examination that prior to lodging missing report dated 15/08/2021, he never met accused Pankaj (A-2 herein) and on 14/08/2012, Pankaj (A-2) visited his house and he informed Pankaj on 14/08/2021 that Rahul (since deceased) had gone missing.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 40 of 6936.4. PW14 Ram Avtar Sharma has stated in the cross-examination conducted on behalf of accused Kishore (A-1) that he does not remember if he had ever seen Rahul (since deceased) in the company of accused Kishore (A-1) at any point of time. He has further stated that he does not know as to whether accused Kishore (A-1) used to accompany them in search of Rahul (since deceased) & whether accused Kishore used to visit house of Rahul prior to his missing or after his missing. However, he has voluntarily stated that he had seen accused Kishore (A-1) in the company of deceased Rahul. He has further stated that he cannot tell why he raised suspicion on Kishore (A-1) nor he can tell as to when he raised the suspicion first time nor he remembered when he first time informed the police about his suspicion on Kishore (A-1). He further claimed in the cross-examination that he was with his own opinion doubting upon Kishore (A-1) but he does not remember if he ever informer his brother Ram Kumar (PW7) about his suspicion over accused Kishore (A-1). He further stated that he does not remember if he ever made any statement to the police during the investigation of this case.
36.5. PW15 ASI Chand Singh, first IO, has claimed that on 05/09/2012, he interrogated suspect Kishore (A-1) and Pankaj (A-2) and tried his best to trace the missing boy Rahul, but could not succeed & thereafter the further investigation was assigned to SI Jitender Joshi. If prosecution case is to be believed, both PW7 and PW17 made supplementary statements raising suspicion against both the accused as well as one Avniket on 13/09/2012, then how both the accused were interrogated by PW15 ASI Jagdish on 05/09/2012 because till date no such statement raising suspicion against them was made before the police. It creates doubt on the case of the prosecution. The investigating agency has failed to give any explanation in this regard.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 41 of 6936.6. PW18 SI Jitender Joshi has claimed that on 12/09/2012, investigation was handed over to him and he collected the file from MHC(M) and during investigation, he recorded statement of complainant Ram Kumar Sharma and Ram Avtar Sharma on 13/09/2012 and also interrogated suspects Kishore, Pankaj, Avniket, Deepak and Nawab. He further claimed that he also made request for lie detector test of accused Kishore and Pankaj, who refused the same in the Court. He further claimed that he also collected the call details of mobile phones of accused Pankaj, Kishore, Avniket and deceased Rahul & thereafter the investigation was transferred to Special Staff.
36.7. During cross-examination conducted on behalf of accused Pankaj (A-2), PW18 has admitted that investigation when handed over to him, was U/s 363 IPC and he does not remember whether any notice u/s 160 CrPC was given to accused Pankaj (A-2). He further deposed that he only made the telephonic call to accused Pankaj (A-2) for interrogation. He has admitted that accused Pankaj did not disclose his involvement related to the present case. He further deposed that he does not remember whether any telephonic conversation was found between accused Pankaj (A-2) and deceased or that there was any phone location of accused Pankaj (A-2) at the place of incident.
36.8. In the cross-examination conducted on behalf of accused Kishore (A-
1), PW18 has deposed that he might have given the CDR of accused Kishore to the next IO. During cross-examination, PW18 was asked to check the judicial file and after seeing the same, he stated that the same is not on judicial record. He further deposed that accused Kishore and father of the deceased namely Ram Kumar might have circulated pamphlets regarding missing of deceased Rahul in their locality. He further deposed that till the time investigation remained with him, he did not meet any person with the name of Roop Kishore. He has admitted that SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 42 of 69 till the time investigation remained with him, he was not having any incriminating evidence against accused Kishore (A-1) except statement of father and uncle of deceased.
36.9. From the aforesaid discussion, it comes out that baseless suspicion was placed on the accused persons, which raises a serious doubt on the story of the prosecution and the possibility of the accused being falsely implicated in the present case by introducing the supplementary statements of PW7 Ram Kumar Sharma and PW14 Ram Avtar Sharma after a considerable lapse of one month of missing of Rahul (since deceased) cannot be ruled out. Both these PWs have taken contradictory stands in their cross-examination qua both the accused persons as pointed out in the preceding paras. Except the testimonies of both these witnesses, there is no statement of any independent public witness from the locality to support the case of the prosecution that Rahul (since deceased) was having any friendship with both the accused and it would have strengthen the case of the prosecution, which is not the case herein. Moreover, both the accused were much older than the deceased and it is not believable that he was having friendship with him. Had both the accused been of same age group, it would have been digestible to believe that they were having friendship with the deceased. From the statements of PW18 SI Jitender Joshi, it is also clear that there was no incriminating evidence against both the accused till the time investigation remained with him prior to transfer of investigation to Special Staff. The prosecution has failed to prove on record that both the accused were having any friendship with the deceased.
WHETHER LAST SEEN WITNESS IS RELIABLE OR NOT
37. As per case of prosecution, on 15/08/2012, PW7 Ram Kumar SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 43 of 69 Sharma (father of deceased) went to PS Alipur, Delhi and lodged missing report qua his son Rahul Kumar vide DD no. 18A Ex. PW5/A. PW2 Roop Kishore, who claimed himself to be the last seen witness, has claimed in his testimony that on 14/08/2012, he left on his motorcycle at 7.00 a.m. for his workplace & while he was present at Budhpur bus stand waiting for his friend Sattu, he saw accused Pankaj (A-2) along with Rahul (since deceased) going on a motorcycle towards Alipur and that time Rahul (since deceased) was in school dress and was having school bag and the motorcycle was driven by accused Pankaj (A-2) and Rahul was pillion rider and both were without helmet. It is pertinent to mention here that said last seen evidence is only against accused Pankaj (A-2) and PW2 Roop Kishore has nowhere named accused Kishore (A-1) in his entire testimony. The statement of PW2 was recorded by the police on 12/04/2014 i.e. after a considerable lapse of 01 year and 8 months. PW2 has correctly identified accused Pankaj (A-2) before the Court.
37.1. In his cross-examination conducted on behalf of accused Pankaj (A-
2) on dated 23/03/2015, PW2 Roop Kishore has denied the suggestion that he knew the family of deceased Rahul previously. However, in his cross-examination (on application u/s 311 CrPC) conducted on behalf of accused Pankaj (A-2) on 21/05/2015, he has taken a different stand and claimed that he knew deceased Rahul since he is the resident of the same area & moving in the area. He further claimed that that his house is at a distance of about 200 meters from the house of deceased Rahul. He further claimed in his said cross-examination that he did not know that if the pamphlets of missing child were pasted in the area. In the cross- examination (on application u/s 311 CrPC) conducted on behalf of accused Kishore (A-1) date 30/04/2019, PW2 has claimed that he does not remember by way of approximation, the exact date, month and year when he firstly met with police officials of PS Alipur and has voluntarily stated that he met with the police SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 44 of 69 officials when police was making enquiry in the village Budhpur, Alipur, Delhi. He further claimed that he does not remember whether police had enquired any villager in his presence on that day or not. He further claimed that he does not know whether any pamphlets were circulated in the village regarding missing of deceased Rahul & does not know the date, month and year when he came to know about the missing of deceased Rahul at first time. He has voluntarily stated that one day, when he was on leave, he heard about the missing of deceased Rahul during conversation. PW2 further claimed in his said cross-examination that he came to know about the missing of deceased Rahul might be after 15 to 20 days after 14/08/2012. He further deposed that he does not remember whether police had recorded his statement or not on 14/08/2012. He further claimed that for the first time when he came to know about the missing of Rahul, he did not visit the police station to give the information regarding missing of deceased Rahul on his own nor he informed the family members of deceased on that day. He further deposed that the police official who recorded his statement had also obtained his signatures on his statement. PW2 further claimed that he had not shown the place where he had spotted deceased Rahul to the police. During cross examination, a question was put to PW Roop Kishore whether he informed the police officials or the family members of the deceased Rahul prior to 12/04/2014 (when his statement u/s 161 CrPC was recorded by police) about his last seen of deceased Rahul on 14/08/2012, PW2 replied in negative and has claimed that it was so because he used to go out for work at 8.00 a.m. and used to return at about 9.00 p.m., he is a flower decorator, he also did not know as to where was the residence of parents of Rahul and that therefore, he told the police about last seen when police made enquiry from him.
37.2. PW7 Ram Kumar Sharma (father of deceased) has claimed in his cross-examination that he knew PW2 Roop Kishore, being the resident of same SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 45 of 69 area i.e. Village Vudhpur and he has been known to PW2 for last about 8 to 10 years, though he has claimed that he is not his relative, whereas PW2 Roop Kishore has denied the suggestion given on behalf of accused Pankaj (A-2) that he and father of deceased Rahul are the residents of same village or that they are known to each other. PW7 Ram Kumar Sharma has claimed in his cross- examination that Roop Kishore (PW2) used to ask him about the whereabouts of his son and any progress in the missing report lodged by him at the police station. PW7 Ram Kumar Sharma has also admitted in his cross-examination that he used to inform the persons of the locality about the status of the proceedings of the missing report. PW7 Ram Kumar Sharma further claimed in his cross-examination conducted on behalf of accused Pankaj (A-2) that the pamphlets qua missing of his son were pasted and distributed in neighbouring villages including Village Budhpur. He has further claimed that the house of Roop Kishore (PW2), who is witness in this case, is situated at a distance of 2 km. from his house, again said, there are 5-6 houses between his house and the house of Roop Kishore (PW2).
37.3. PW18 SI Jitender Joshi has admitted in his cross-examination that he did not meet any person with the name of Roop Kishore. PW20 Inspector K.P. Malik has claimed in his cross-examination that he cannot comment if SI Jitender Joshi and Inspector Puran Pant had already met Roop Kishore (PW2) or not. He has further claimed in his cross-examination that he interrogated Roop Kishore first time on12/04/2014. He further claimed that he inquired from Roop Kishore (PW2) whether he had disclosed about factum of last seen of Rahul to anybody including the family members, friends, family of deceased or any other authority prior to 12/04/2014, to which, he (Roop Kishore) stated that he had not told the said fact to anybody at all. He further stated that he made inquiry from the witness Roop Kishore whether he had disclosed this fact to any police official prior to him to which he replied that no police officer met him in this regard. He further claimed SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 46 of 69 that witness Roop Kishore (PW2) was already known to Ram Kumar (PW7), father of Rahul (since deceased). He further claimed in his cross-examination that he had informed Ram Kumar (PW7) about Roop Kishore (PW2) being last seen witness on 14/04/2014.
37.4. In view of the aforesaid, it can be safely inferred that PW2 Roop Kishore has taken different stands in his testimony in the cross-examination. On one hand, he claimed that he does not know the family of the deceased previously and on the other hand, he claimed that he knew deceased Rahul being the resident of same area. He further claimed that he also did not know as to where was the residence of parents of Rahul. But PW7 Ram Kumar Sharma (father of deceased) claimed that PW2 Roop Kishore was known to him for the last 8-10 years and he was even asking about the his missing son and progress of the case. It is very surprising that PW2 Roop Kishore, who was residing at a short distance from the house of father of deceased & used to ask about the whereabouts of son of PW7 Ram Kumar coupled with the fact that pamphlets were distributed in the village & other neighbouring villages, had never disclosed to PW7 Ram Kumar that on 14/08/2012, he had seen the victim/deceased Rahul with accused Pankaj (A-
2). Being a neighbour and being known to the father of deceased, it was prime duty of PW2 Roop Kishore to inform PW7 Ram Kumar Sharma about such a material fact or to the police, which is not a case herein. The contradictory stands taken by PW2 Roop Kishore in his cross-examination raises a serious question and doubt on the veracity of his statement that as to why he kept mum for such a long period despite knowing such a material fact. The explanation given by PW2 Roop Kishore that he was busy in his duty and did not know the residence of parents of deceased and when police made enquiry from him, he told the police about last seen is not acceptable. If case of prosecution is to be believed, the local police made efforts to trace out the actual culprits for more than two years SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 47 of 69 and interrogated the suspects and during said period, no such witness or PW2 Roop Kishore came forward to give his statement qua last seen evidence. In such circumstances, when all such activities were happening in the locality, it is not believable that during such period of inquiry by the police, PW2 Roop Kishore had never seen the police in the area or did not get any chance to meet the police and suddenly after lapse of 20 months, when the case was transferred to Special Staff, PW2 Roop Kishore comes out of blue and introduces himself to be witness of last seen. If such version of PW2 Roop Kishore is accepted, then it also raises question on the investigating agency as to what kind of investigation it was conducting when the main prime witness was living in the vicinity and investigating agency did not come across to said prime witness for 20 months. Moreover, it is also very surprising that when PW20 Inspector K.P Malik had recorded the statement of PW2 Roop Kishore on 12/04/2014, then why he informed PW7 Ram Kumar Sharma on 14/04/2014 about PW2 Roop Kishore and not on12/04/2014 itself. The testimony of PW7 Ram Kumar Sharma is also silent in this regard and he nowhere claimed in his testimony that he came to know about recording of any such statement of PW2 Roop Kishore on 12/04/2014. It also raises a serious doubt on the case of the prosecution.
37.5. It is pertinent to mention here that PW20 IO Inspector K.P. Malik who had recorded the statement of PW2 Roop Kishore qua last seen evidence,has stated in his cross-examination that after recording of statement of Roop Kishore, he had not taken him to the particular spot where he had seen the accused persons lastly with the deceased. PW20 has admitted that he did not prepare the site plan of any such spot nor made any enquiry from Sattu, whose name was found mentioned in statement u/s 161 of witness Roop Kishore in order to verify the veracity of the statement of Roop Kishore nor he made any inquiry from the Chhatarsal Sports Stadium whether PW2 Roop Kishore was given any work of SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 48 of 69 flower decoration as per his claim. He further claimed in the cross-examination that as per his investigation, Roop Kishore (PW2) came to know about missing of Rahul (since deceased) on the day when he recorded his statement u/s 161 CrPC dated 12/04/2014.
37.6. The last seen is applicable only in those cases where the testimony regarding last seen and time of death is very short. According to the case of prosecution, the missing child was lastly seen with accused Pankaj (A-2) on 14/08/2012 at around 7.10 a.m., missing report was lodged on 15/08/2012, recovery of bones and skull of the deceased was effected on 15/04/2014 & postmortem was conducted on 23/04/2014. As per PW4 Dr. Bhim Singh, time since death was around more than 1½ years. As such, in the medical evidence, it has not come on record as to what was the actual time of death of the deceased. This clearly goes on to show that there may be a huge time gap between the point when the death was caused and the accused Pankaj (A-2) was last seen together with deceased.
37.7. In view of the aforesaid discussion, this court is of the considered view that the testimony of PW2 Roop Kishore is not reliable and convincing qua last seen & the prosecution story falls flat on the said aspect. The investigating agency did not bother to take PW2 Roop Kishore to the spot where he had seen accused Pankaj (A-2) with the deceased going on motorcycle nor prepared any site plan of the said place. There is nothing on record to show that investigating agency recorded any statement of PW2 Roop Kishore qua identification of accused Pankaj (A-2) as the person, who was lastly seen by PW2 with the deceased on 14/08/2012. The testimony of PW2 Roop Kishore seems to be introduced at a belated stage just to strengthen the case of prosecution and to falsely implicate the accused persons in this case.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 49 of 69ARREST OF BOTH THE ACCUSED & RECORDING OF THEIR DISCLOSURE STATEMENTS
38. As per version of PW20 Inspector K.P. Malik, police was having suspicion on both the accused and as such they both were called to the office of Special Cell and were interrogated and were arrested in the present case. He has proved the arrest memo and personal search memo and disclosure statement of of accused Kishore Ex. PW16/A, Ex. PW16/C & respectively Ex. PW16/E & arrest memo, personal search memo & disclosure statement of accused Pankaj Ex. PW16/B, Ex. PW16/D & Ex. PW16/F respectively.
38.1. It is pertinent to mention here that PW2 Roop Kishore has made statement on 12/04/2014 qua last seen against accused Pankaj (A-2). PW20 IO Inspector K.P. Malik has claimed in his testimony that the police was having suspicion on both the accused and as such he called both the accused to Special Staff office, interrogated them and arrested them. In the cross-examination, in reply to question what were the evidence and grounds available on file which justified the arrest of the accused persons on 14/04/2014, PW20 Inspector K.P. Malik has stated that prior the arrest of the accused persons, accused Pankaj (A-
2) was seen with the deceased Rahul on the morning of day of incident so that they were called and interrogated and they disclosed their involvement and thereafter they were arrested and the witness was Roop Kishore (PW2) and his statement was recorded on 12/04/2014. If the said version of PW20 Inspector K.P. Malik is assumed to be true, then why the investigating agency did not interrogate & arrest accused Pankaj (A-2) or accused Kishore on 12/04/2014 itself or on 13/04/2014 despite knowing the fact that case was lying unsolved in the absence of any incriminating evidence. There is no explanation on the part of IO for such delay. PW20 IO Inspector Malik has also admitted in the cross-examination that on 14/04/2014, there was no ground/evidence against accused Kishore to effect SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 50 of 69 his arrest except his disclosure statement. PW7 Ram Kumar Sharma has claimed in his cross-examination that on 14/04/2014 he went to PS at about 9.30 a.m. and met with Inspector Samarpal, accused Pankaj and Kishore were called there in his presence and they were interrogated and he (PW7) went on his job. However, in his cross examination, he has stated that he had not gone on his job on 14/04/2014 and was on leave on that day & had already taken leave for 14-15 days during that period and his leave started from 14/04/2014. He further stated that neither his statement was recorded on that day nor he sign any paper on that day. He further stated that in his presence, accused persons had not made any statement and did not sign any document. It raises doubt on the case of prosecution as to what kind of investigation was done by the investigating agency. Moreover, as already discussed above in the preceding paras, the statement of PW2 Roop Kishore is not reliable.
RECOVERY OF BONES & SKULL ALONG WITH CLOTHES OF DECEASED AT THE INSTANCE 7 POINTING OUT OF BOTH THE ACCUSED PERONS PURSUANT TO DISCLOSURE STATEMENT OF ACCUSED PERSONS
39. As per case of prosecution, both the accused persons were arrested and they made disclosure statements Ex. PW16/E & Ex. PW16/F on 14/04/2014, wherein they disclosed that being shortage of money, they used to allure the children of well off families in order to fulfill their money needs and they firstly developed friendship with Avniket and then with Rahul (since deceased) and started enjoying with the money of Rahul (since deceased). They further disclosed that to fulfill the need of money, they used to ask Rahul to bring gold-silver jewellery from his house and once Rahul brought one gold chain which was sold to Ankur Jewellers in Rs. 50,000/-, out of which Kishore (A-1) had purchased an Esteem car. They further disclosed that one day, Rahul told them that his father SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 51 of 69 had suspicion on him and do something and they thought if father of Rahul would not know everything, he would put them behind the bars in the offence of theft and as such they hatched a plan along with JCL "GP" to kill Rahul and for that purpose, the settle Pakka Nala behind the Alipur Radio Station. They further disclosed that they asked Rahul to bring money and gold-silver articles from his house and they would also bring some money and they all would fled far away from here and after enjoying for some days, they will return and nobody will suspect about the theft on them. They further disclosed that as per plan, on 14/08/12, Kishore (A-1) and "GP" (JCL) reached at the Pakka Nala and accused Pankaj (A-2) went on motorcycle at Budhpur Mandir to take Rahul and at about 7.15 a.m., as per plan, Rahul brought gold-silver jewellery from his house and Pankaj (A-2) took Rahul to Pakka Nala, where Kishore and "GP" (JCL) met them. They further disclosed that they all took Rahul inside the nala and killed Rahul by strangulating his neck and they left the dead body of Rahul inside the nala and themselves came out and took out all the gold-silver articles from his bag and had thrown the bag at a short distance.
39.1. It is pertinent to mention here that both the accused including JCL made disclosure statements on 14/04/2014. However, as per version of PW20 Inspector K.P. Malik as it had become night, so spot where accused had disclosed to commit murder of Rahul (since deceased), could not be visited on 14/04/2014 and on 15/05/2014, both the accused led the police party headed by PW20 Inspector K.P. Malik to that particular spot near a Nala near Radio Station, Village Khampur, Delhi, where some bones and clothes were found lying. Complainant Ram Kumar (PW7) had also reached there. School uniform which was one pant along with one school belt, one T-shirt, one pair of socks and one elastic of underwear were found at the spot, which were tied with the human bones. Said school uniform was identified by father of the victim Ram Kumar Sharma (PW-7).
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 52 of 69Crime team was called at the spot, which came at the spot and took the photographs and videographs of the spot and also inspected the spot. PW9 Inspector Anil Kumar has proved the crime team report Ex. PW9/A & PW3 HC Shiv Om, photographer, Crime team has proved the photographs Ex. PW3/B (colly) taken by him and negatives thereof Ex. PW3/A (colly) and CD of the videography done by him as Ex. PW3/C. 39.2. It is pertinent to mention here that in the inquest papers prepared by PW20 Inspector K.P. Malik i.e. death report Ex. PW20/B, in the column of date and hours of discovery of death, the date of "14/04/2014 at night" is mentioned and in the PM report Ex. PW6/A, in the column of "Brief History (as per inquest papers), it is mentioned that "bones recovered on 14/04/2014 at night, after one year eight months". PW4 Dr. Bhim Singh has also claimed in his testimony before the Court that on 23/04/2014, he was posted at BJRM hospital, Jahangir Puri, Delhi as In- charge Mortuary and on that day, he had conducted examination of bones alleged to be of deceased Rahul s/o Ram Kumar Sharma, aged about 14 years, male, brought by Inspector K.P. Malik (PW20) of Special Staff of Outer District, Delhi, with the alleged history of missing of the said boy on 14/08/2012 vide case FIR no. 264/12, u/s 363/302/201/34 IPC, PS Alipur, bones recovered on 14/04/2014 night. All these facts show that the dead body has already been recovered in the night of 14/04/2014, which has been shown to be got recovered on 15/04/2014 pursuant to disclosure of accused persons vide joint pointing out-cum-recovery memo Ex. PW7/A. I am in agreement with the argument advanced by ld. Counsel for the accused Kishore (A-1) in this regard. Had the recovery been effected on 15/04/2014, the IO should not have mentioned the date of recovery of bones as "14/04/2014 night" in death report nor the "alleged history of bones recovered on 14/04/2014 night" would have been given. Moreover, generally, when recovery of any incriminating material is effected at the instance of two or more accused SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 53 of 69 persons, separate pointing out or recovery memos are prepared, which is not the case here. PW20 IO Inspector K.P. Malik has admitted in the cross-examination that as per the complaint, the height of the missing person Rahul was 135 cm and further admitted that as per postmortem report, the height of deceased was 150- 180 cms. He has further stated in the cross-examination that he did not call the SDM at the spot nor got identified the recovered clothes from the witness Roop Kishore (PW2). He has also admitted that he did not make any inquiry from the accused persons regarding the remaining missing bones/organs of the deceased.
39.3. The next leg of argument of ld. Counsel for the accused persons is that in the photographs and in the videography of the place of spot from where the aforesaid alleged recovery of dead body & clothes have been recovered, the accused persons are not visible, which goes on to show that recovery was not effected in pursuance to disclosure statements of both the accused and same is planted one. PW20 Inspector K.P. Malik has stated in his cross-examination that he does not remember the date and month when the concerned police officials handed over the photographs and videography of the spot of recovery. He has further stated that he had not sent the CD of the videograph to FSL to verify the fact regarding any tampering in the same or otherwise. PW20 has further stated in the cross-examination that he did not get the recovery/seizing proceedings videographed and photographed. He has further stated that at his instance, the crime team photographer videographed and photographed the place of recovery. He has admitted that in the photograph and videograph placed on record, none of the accused is seen. PW16 Inspector Samar Pal, who has joined the investigation with IO on that day, after seeing the photographs on record has stated that only the photographs of the place are taken and no person/police official/accused persons are seen in it. He has admitted that on these photographs, the date, month, year and time are not appearing. Admittedly, in the photographs available SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 54 of 69 on record and videography played in the Court, the accused persons are not visible.
39.4. As regard the factum as to whether the place from where the alleged recovery of bones, skull and uniform was effected was accessible to public or not, PW16 Inspector Samar Pal has stated in his cross-examination that it is not a pakka road but rori is lying on it and it is abandoned road. He has admitted that it is not a private road and is a public road. He has further stated that the place, where the skeleton was recovered, was open place but was not easily visible and the place was accessible to all and has voluntarily stated that place is abandoned and no one goes there, whereas PW17 ASI Jagdish has stated in his cross- examination that the nala was covered at various places and it was open at other places and the place from where the bones were recovered, the portion of nala was open and was accessible to all.
39.5. Now, it is to be seen whether the investigating agency made any effort to seek information from the school of the deceased child Rahul whether on the day of incident, Rahul went to school or that he was a student of that school or that the uniform which was alleged to have been recovered from the spot, was of that particular school. In this regard, PW20 Inspector K.P Malik has stated in his cross-examination that he had not done investigation regarding the school record and the presence of deceased Rahul on the day of incident. He has further stated that he did not take any record from the school or made any such inquiry whether the deceased was the student of any such school or not. During cross- examination, PW20 was asked whether he had taken any document on record of found any document with regard to any school on file when he received the same from the previous IO, he has stated that he can tell after seeing the file and file was perused by him and he stated that no such document is available on record. .
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 55 of 69He has also admitted that he did not get verified the recovered school belt and pant from the concerned school after recovery from the spot. PW17 ASI Jagdish has stated in his cross-examination that the logo of the school could be seen on the belt and the school uniform which he has deposed can only be analysed from belt logo.
39.6. PW7 Ram Kumar Sharma has stated in his examination-in-chief that on 15/04/2014, I reached the PS at about 9.00 a.m. and they left the PS within half an hour, whereas in his cross-examination, he stated that on 15/04/2014, he received telephonic call from IO at about 9.00 a.m. and he reached special staff office at 9.30 to 9.45 a.m., whereas PW16 Inspector Samar Pal and PW17 ASI Jagdish have stated in their examination-in-chief that IO informed the father of the deceased, namely Ram Kumar and the crime team and after some time, crime team and Ram Kumar Sharma came at the spot. However, in the cross- examination, PW16 has stated that on 15/04/2014, father of deceased was with them when they started to go to the place of occurrence i.e. where dead body was recovered. PW7 Ram Kumar has further stated in his cross-examination that he cannot tell by way of approximation as to at what time they left for Khampur from special staff office on 15/04/2014. He further stated that he was in his car on that day and all the police officials had left special staff office in civil dress and that all police officials were in civil dress and further goes on to say voluntarily that he was not having any car with him on that day as he had gone to special staff office on his motorcycle on that day, which he parked in special staff office parking. PW7 has further stated on 15/04/2014, his statement was not recorded by the IO even at the spot or even subsequently. He has voluntarily stated that he signed the seizure memo & the contents thereof were read over to him by IO before obtaining his signatures & further stated that he put his signatures on the seizure memo first of all and when he signed the same at that time, there was no other signatures SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 56 of 69 available on the said paper. He has further stated that the remnants and other articles found in the nala were brought by the police officials to the special staff office and sealed in the said office and his statement was not recorded qua sealing of case property. During cross-examination seizure memo Ex. PW7/A was shown to PW7 and after going through the same, he stated that he signed the same at point A in the office of Special Staff Rohini in evening hours. If version of PW7 Ram Kumar Sharma is to be believed, the case property was not seized at the spot and it was seized in the Special Staff office.
39.7. In view of the aforesaid discussion, it can be safely inferred that the place where the dead body was recovered, was accessible to all. Secondly, it is not clear whether the dead body was recovered on 14/04/2014 or on 15/04/2014. Thirdly, admittedly, the accused persons are not visible in the photographs & videography. The purpose of investigation would have been fulfilled if accused persons would have been covered in the photographs and the videography. Fourthly, there is material contradiction qua the visit of father at the PS or directly at the spot in the statements of the prosecution witnesses. Fifthly, as per version of father of deceased, the remnants and other articles were taken to the office of Special Staff and were sealed there and he signed the seizure memo in the evening hours. Moreover, as per father of deceased, on 15/04/2014, his statement was not recorded by the IO even at the spot or even subsequently. Sixthly, the investigating agency did not make any effort to obtain any information qua the clothes of the deceased from the concerned school or qua his attending the school on the fateful day & except for father of deceased, there is no other independent witness, who would have identified the clothes of deceased. The prosecution has not got identified the clothes of deceased from PW2 Roop Kishore,who had seen the deceased lastly with accused Pankaj (A-2) for the reasons best known to it. Had PW2 been made a witness in this regard, it would have certainly strengthened SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 57 of 69 the case of prosecution. Moreover, as already discussed in preceding paras, the testimony of PW2 Roop Kishore is not reliable qua the last seen evidence. All these facts and circumstances raise a doubt on the case of prosecution qua the recovery of dead body and school uniform of the deceased at the instance of both the accused persons.
RECOVERY OF SCHOOL BAG & D.V./MP4/MP5 PLAYER OF DECEASED FROM THE HOUSE OF ACCUSED KISHORE(A-1)
40. As per case of prosecution, 18/04/2014, accused Kishore (A-1) made supplementary disclosure statement, wherein he disclosed that after killing Rahul (since deceased), they brought his bag with them and they had thrown the books kept in the bag on the way and kept the jewellery, toy cars and music player with them, which were kept in the bag. He further disclosed that he himself kept the bag and the music player and the toy cars were kept by Pankaj and jewellery was sold by them to Ankur Jeweler and that said bag and music player were recovered. If we go by the testimony of PW20 IO Inspector K.P. Malik, PW16 Inspector Samar Pal and PW17 ASI Jagdish, the same are silent qua the said supplementary disclosure statement dated 18/04/2014. PW7 Ram Kumar Sharma and all these three police witnesses have simply stated that accused Kishore (A-1) led them to his house and from one room of his house, he got recovered one school bag and one D.V./MP4/MP5 player, which were identified by complainant Ram Kumar (PW7) belonging to his deceased son Rahul. PW7 Ram Kumar identified the music player as the one which was gifted by his elder brother Ram Avtar Sharma to deceased Rahul on his birthday. They further claimed that both bag and DV player were taken into possession through seizure memo Ex. PW7/C. It is pertinent to mention here that in his earlier disclosure statement dated 14/04/2014, accused Kishore (A-1) had disclosed that they took out all the gold-
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 58 of 69silver articles from his bag and had thrown the bag at a short distance. The aforesaid supplementary disclosure statement dated 18/04/2014 has not been proved on record nor it has been exhibited during the testimony of any prosecution witness. Moreover, in his cross-examination, PW7 Ram Avtar Sharma has stated that he had not mentioned in the missing report that his son was carrying music player MP4 at the time of leaving the house and has voluntarily stated that I had mentioned in the missing report that he was carrying the school bag. He further stated that he did not check on the day of missing whether any valuable article or money or jewellery or MP4 player was missing from his house or not & that he checked at his home on the next day of missing report and found some jewellery missing from his house and on the same day he went to PS and made statement about the missing of jewellery from his house. However, no such statement of PW7 Ram Kumar Sharma is available on record in this regard. In the cross- examination, seizure memo Ex. PW7/C was shown to the witness and after going through the contents of the same, PW7 has stated that Ex. PW7/C was signed by him at point A in the office of Special staff office, Rohini, on 18/04/2014 in the evening hours and at that time there was no public person present in special staff office except the police officials. In further cross-examination, he stated that on 18/04/2014, he was not called by any police official and he himself went there in routine manner and he remained in special staff office upto 10/10.30 a.m. and then left to Alipur with special staff police officials and no public person was accompanying them at that time except his brother Ram Avtar Sharma (PW-14), who remained with him always during the investigation of this case. However, PW14 Ram Avtar Sharma has simply stated that sometime, he used to accompany his brother Ram Kumar to the PS. PW7 has further claimed that all the police officials were in civil dress. He further stated that neither mother and sister of accused Kishore (A-1) nor public persons present there were asked by the police officials to join the investigation. He further stated that police officials took SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 59 of 69 the bag as well as MP3 and subsequently sealed the same in special staff office at Rohini in the evening hours and at that time, he signed the seizure memo Ex. PW7/C of the said article, while he was present at Special Staff office. He has further stated that he had not mentioned anything about MP3 player to any of the police officials in any of his statement or otherwise prior to 18/04/2014, however, he mentioned about the school bag in FIR itself. He further stated that on 18/04/2014, his statement was not recorded by the police.
40.1. PW16 Inspector Samar Pal has stated in the cross-examination that on 18/04/2014, they reached at the house of accused Kishore (A-1) in the noon hours in a private vehicle arranged by the IO and reached there at about 11/11.30 a.m. He further stated that the complainant also reached there within 5-10 minutes of their arrival there. He further stated that IO did not call any residents/inhabitants from the nearby house during recovery at the instance of accused in his presence nor any notice was served to any neighbour by the IO in his presence. He has further stated that almirah was locked when the recovery was effected. He further stated that IO did not record statement of complainant at the house of accused Kishore in his presence.
40.2. PW17 ASI Jagdish Singh has stated in his examination-in-chief that on 18/04/2014, he along with Inspector K.P. Malik (PW20), PW16 SI (now Inspector) Samar Pal, complainant Ram Kumar (PW7) and both accused went to the house of accused Kishore at village Alipur, whereas in the cross-examination, PW17 has stated that he does not know how the complainant Ram Kumar (PW7) reached at the house of accused Kishore & Ram Kumar arrived at the house of accused Kishore after their reaching at there within 2-3 minutes. He further stated that IO did not make request to the neighbour of accused Kishore (A-1) in his presence. He further stated that almirah make of iron was found open. He has SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 60 of 69 also stated that IO made enquiry from complainant Ram Kumar but did not record his statement in his presence on that day.
40.3. PW20 IO Inspector K.P. Malik has admitted in the cross-examination that there was no police complaint regarding the theft of jewellery items, utensils and any other missing articles prior to marking of this file to him. He has further admitted that prior to 18/04/2014, there was no material or statement of any witness which may mention the factum of music player whatsoever. He has further admitted that the recovery of music player has not been effected in pursuant to statement of any disclosure statement. He has further admitted that the said recovery was not even effected at the instance of the accused persons. He has further admitted that the bag in this case has not been recovered in pursuant to the disclosure statement of the accused persons or at their instance. He has further admitted that he had not recorded the statement of occupant of the house or of any neighbour in order to inquire as to place of recovery of bag and music player belongs to whom and who was in actual possession of particular room or place.
40.4. In view of the aforesaid discussion, it is not proved on record that accused Kishore (A-1) had made any supplementary disclosure statement on 18/04/2014 qua bag and MP4 player as neither the same has been exhibited nor proved on record. The plain reading of language of the said supplementary disclosure statement nowhere disclose that accused led the police party & witnesses while in custody to his house & is different from the language of disclosure statements. Admitted, there is no complaint qua missing of any music player except the fact that complainant mentioned in his missing report that his son was carrying the bag. Moreover, in the first disclosure statement dated 14/04/2014, accused Kishore (A-1) claimed that they (accused persons) had SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 61 of 69 thrown the bag and took all the jewellery articles with them and can point out the said place where the bag was thrown. It is nowhere mentioned in the testimonies of aforesaid prosecution witnesses that accused persons were taken to the place, where they had thrown the said bag. It is also not digestible or believable that an accused would keep such articles for such a long period of more than one and half years in his house. As mentioned above, there are material contradictions in the testimonies of the aforesaid police witnesses. There is no independent public witness qua the factum of aforesaid recovery nor IO made any efforts to join the public witnesses at the time of recovery. Admittedly, no videography or photography of the alleged recovery was done. Admittedly, the recovery of bag and music player was not effected pursuant to any disclosure statement and as such the same cannot be attributed or connected to accused Kishore (A-1). Further, in the statements of aforesaid witnesses, it is nowhere mentioned that sealed pullanda of said recovered bag or MP player was prepared or what seal impression was put on the same. Keeping in view all these facts and circumstances, it seems that the recovery of bag & MP4 player is doubtful and possibility of planting the same upon accused Kishore (A-1) cannot be ruled out. It can be safely said that the same have been planted upon the accused just to solve the case of the prosecution and it casts serious doubt on the case of the prosecution.
RECOVERY OF FIVE TOY CARS FROM THE HOUSE OF ACCUSED PANKAJ (A-2)
41. As per case of prosecution, 18/04/2014, accused Pankaj (A-1) made supplementary disclosure statement, wherein he disclosed that after killing Rahul (since deceased), they brought his bag with them and they had thrown the books kept in the bag on the way and kept the jewellery, toy cars and music player with them, which were kept in the bag. He further disclosed that the bag and the music player were kept by accused Kishore (A-1) and the toy cars were kept by him and SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 62 of 69 jewellery was sold by them to Ankur Jeweler and that five toy cars have been recovered from his house today (i.e. 18/04/2014). If we go by the testimony of PW20 IO Inspector K.P. Malik, PW16 Inspector Samar Pal and PW17 ASI Jagdish, the same are silent qua the said supplementary disclosure statement dated 18/04/2014. PW7 Ram Kumar Sharma and all these three police witnesses have simply stated that accused Pankaj (A-2) led them to his house and from one room of his house, five toy cars were recovered, which were identified by Ram Kumar (PW7) as the ones belonging to his deceased son Rahul & the same were taken into possession vide seizure memo Ex. PW7/D. It is pertinent to mention here that in his earlier disclosure statement dated 14/04/2014, accused Pankaj (A-2) had disclosed that they took out all the gold-silver articles from his bag and had thrown the bag at a short distance. The aforesaid supplementary disclosure statement dated 18/04/2014 has not been proved on record nor it has been exhibited during the testimony of any prosecution witness. Moreover, in his cross-examination, PW7 Ram Avtar Sharma has stated that prior to 18/04/2014, he never told to any other police official during the investigation of the case that his son used to keep these toy car and same were missing. He has further stated that on 18/04/2014, his statement was not recorded by the police.
41.1. In view of the aforesaid discussion, it is not proved on record that accused Pankaj (A-2) had made any supplementary disclosure statement on 18/04/2014 qua five toy cars as neither the same has been exhibited nor proved on record. Admitted, there is no complaint qua missing of any toy cars except the fact that complainant mentioned in his missing report that his son was carrying the bag. Moreover, in the first disclosure statement dated 14/04/2014, accused Pankaj (A-2) claimed that they (accused persons) had thrown the bag and took all the jewellery articles with them and can point out the said place where the bag was thrown. It is nowhere mentioned in the testimonies of aforesaid prosecution SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 63 of 69 witnesses that accused persons were taken to the place, where they had thrown the said bag. As mentioned above, there are material contradictions in the testimonies of the aforesaid police witnesses. There is no independent public witness qua the factum of aforesaid recovery nor IO made any efforts to join the public witnesses at the time of recovery. It is also not digestible or believable that an accused would keep such articles for such a long period of more than one and half years in his house. Admittedly, no videography or photography of the alleged recovery was done. Admittedly, the recovery of five toy cars was not effected pursuant to any disclosure statement and as such the same cannot be attributed or connected to accused Pankaj (A-1). The testimonies of aforesaid witnesses are silent qua the factum whether any sealed pullanda of toy cars was prepared or any seal impression was put thereon. Keeping in view all these facts and circumstances, it seems that the recovery of five toy cars is doubtful and possibility of planting the same upon accused Pankaj (A-2) cannot be ruled out. It can be safely said that the same have been planted upon the accused just to solve the case of the prosecution and it casts serious doubt on the case of the prosecution.
RECOVERY OF MOTORCYCLE BEARING REGISTRATION NO. DL-8SNC-2227 FROM THE HOUSE OF ACCUSED PANKAJ (A-2) USED IN THE COMMISSION OF OFFENCE
42. As per version of PW20 Inspector K. P. Malik & PW16 Inspector Samar Pal,on 18/04/2014, on inquiry from accused Pankaj (A-2), he disclosed that motorcycle used in the commission of offence has been kept in his house and then they again took accused Pankaj (A-2) to his house, who got recovered motorcycle bearing registration no. DL-8SNC-2227, which was taken into possession vide seizure memo Ex. PW17/A, whereas PW17 ASI Jagdish has nowhere stated so, rather he claimed that at outside the house of accused Pankaj (A-2), one Pulsar motorcycle bearing registration no. DL-8SNC-2227 which was used for committing SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 64 of 69 the offence was also seized vide seizure memo Ex. PW17/A and thereafter they returned to the office of Special Staff. In the cross-examination, he claimed that one seizure memo was prepared at the house of accused Pankaj (A-2). If said version of PW17 ASI Jagdish is believed, then it raised question on the prosecution as to whether five toy cars and aforesaid motorcycle were actually recovered from the house of Pankaj. Had these two articles were recovered from house of accused Pankaj (A-2), PW17 would not have stated that only one seizure memo was prepared at the house of accused Pankaj. It is pertinent to mention here that in his disclosure statement Ex. PW16/F, accused Pankaj (A-2) has disclosed that on 14/08/2012, he took Rahul (deceased) on motorcycle to Pakka Nala. In the said disclosure statement, the registration number of the motorcycle is nowhere mentioned. Secondly, it is nowhere mentioned that accused Pankaj (A-2) could get recovered the said motorcycle. If version of PW20 Inspector K.P. Malik and PW16 Inspector Samar Pal are to be believed, only on inquiry, it was revealed that the motorcycle used in the commission of offence was kept in his house and as thereafter he got recovered the same. There is no supplementary disclosure statement of accused Pankaj (A-2) on record to show that he disclosed any such fact. Moreover,there is contradiction in the statements of aforesaid prosecution witnesses qua the recovery of motorcycle. Further, as already discussed in preceding paras, the testimony of PW2 Roop Kishore qua last seen is not reliable and as such the recovery of motorcycle is not of much help to the case of prosecution.
FACTUM OF SELLING OF GOLD JEWELLERY BY ACCUSED KISHORE (A-1)
43. As per case of prosecution, on 13/09/2012, Ram Kumar Sharma (PW7) supplementary statement u/s 161 CrPC to the police, wherein he claimed that jewellery which was put in tiffin box by his wife in the bed, is missing, but prior SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 65 of 69 to missing of Rahul, for about 3-4 months, they did not think about the jewellery and now he came to know that Rahul used to spend money on the three boys (accused persons) and enquiry be made from them. Both the accused persons have also disclosed in their disclosure statements Ex. PW16/E & Ex.PW16/F that after murdering the deceased, they took out the gold-silver jewellery from the bag and had thrown the said bag and sold the said jewellery to one Ankur Jewellers whom they could get apprehended. It is further the case of prosecution that on 27/05/2014, Ram Kumar Sharma (PW7) made supplementary statement that after missing of Rahul, they came to know that gold jewellery was also missing consisting of two gold necklaces, 2 gold chains, 4 golden kangan,six gold rings, one pair gold jhumki (earrings), 2 pair gold tops and five gold nose pins, weighing 90 grams and 50 gms gold articles were 20 years old and that they were not having the receipt of said jewellery. PW7 Ram Kumar Verma in his testimony also claimed that after missing/kidnapping of his son, he found the jewellery lying in their house is also missing, which was weighing 80/90 gms & he does not have the bills of said jewellery. However, during the testimony of PW7, the aforesaid statements dated 13/09/2012 and 27/05/2014 have been proved on record nor the same were exhibited. PW7 has stated in his cross-examination that he did not check on the day of missing whether any valuable article or money or jewellery or MP4 player was missing from his home or not. He further stated in the cross- examination that he checked his home on the next day of missing report and found some jewellery missing from his house and on the very same day, he went to the PS and made his statement about the missing of jewellery from his house. However, no such statement of this witness dated 15/08/2012 is available on record. PW7 further claimed in his cross-examination that he had told the police officials that only some jewellery is missing from his home, however, he had not given any specification of the jewellery articles.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 66 of 6943.1. PW20 Inspector K.P. Malik claimed in his testimony that one Ankur Verma, jeweller, was called in the office and he was inquired in the presence of both the accused persons and said Ankur Verma had identified accused Kishore (A-1) as the same person, who had sold the jewellery articles amounting to Rs. 2.5 lakhs to him in the month of August 2012 and PW20 recorded statement of said Ankur Verma in this regard. However, PW12 Ankur Verma has not supported the case of prosecution and turned hostile. In his testimony before the Court, he has only stated that in the year 2012, some police officials brought accused Kishore (A-1) to his shop and made inquiries from him whether Kishore (A-1) had sold any jewellery to him at any point of time to which he denied. Even in the cross- examination conducted on behalf of ld. Addl. PP for the State, he denied having made any statement before the police. He denied that in the month of August 2012, accused Kishore (A-1) came to his shop with a huge quantity of jewellery to solve them and he checked the purity of jewellery and it was came to be of 80% pure or that he (PW12) had fixed the price of jewellery according to its purity and after deducting 10% of profit, he offered to pay Rs. 2.5 lacs to Kishore (A-1) for said jewellery to which Kishore agreed and he (PW12) paid a sum of Rs. 2.5 lacs to accused Kishore (A-1). PW12 was confronted with portions A to A1, B to B1, C to C1 and D to D1 of his statement Mark PW12/A and he denied having said so & has denied all suggestions put to him during cross-examination by ld. Addl. PP for the State. Thus, it has not been proved on record that accused Kishore (A-1) had sold any gold jewellery to PW12 Ankur Verma.
CAUSE OF DEATH & TIME OF DEATH
44. The prosecution has not been able to prove on record the cause of death of deceased Rahul on record. PW2 Dr. Bhim Singh, who had conducted postmortem of alleged bones of the deceased, gave his opinion that cause of death in this case was not possible. However, he claimed that recovered bones SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 67 of 69 are of human being and sex was male and time since death was around i.e. more than 1½ year. Thus, the prosecution has not been able to connect the accused persons with the murder of the deceased as testimony of last seen witness i.e. PW2 Roop Kishore is not reliable and recoveries effected from the accused persons are doubtful.
MATCHING OF DNA OF DECEASED WITH THE BLOOD SAMPLE OF HIS PARENTS.
45. As per case of prosecution, blood samples of parents of deceased were taken and same along with femur bone of deceased were sent to FSL for DNA examination. From the testimony of PW19 Ms. Anita Chhari, Sr. Scientific Officer (Biology), FSL, Rohini, Delhi, who has proved her detailed report as Ex. PW10/A and allelic data as Ex. PW10/B before the Court, the prosecution has been able to prove that both Ram Kumar Sharma and Rajni Sharma were biological father and mother of the deceased. However, this fact is not sufficient to connect the accused persons with the murder of the deceased as testimony of last seen witness is not reliable and recoveries effected from the accused persons are doubtful.
46. In a case which is based on the circumstantial evidence, the chain should be complete and there should not be any breakage and it should be proved that accused had committed the offences. The circumstances have not been established to the extent that it can be said that both the accused persons along with their associate (JCL) had firstly kidnapped the victim Rahul (since deceased) and thereafter committed his murder and disposed of his body by throwing it inside a nala and thereafter they sold the gold jewellery allegedly brought by the deceased from his house and got effected the recoveries of alleged bag, MP4 player and five soft toys.
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 68 of 6947. In view of the aforesaid discussion, the prosecution has not been able to connect both the accused persons with the commission of the offences as it has not been proved on record that both the accused persons along with their associate (JCL) had kidnapped the victim Rahul from the lawful guardianship of his parents in the absence of cogent and reliable last seen and thereafter had murdered him and disposed of his body by throwing it inside a pakka nala. The prosecution has not been to prove that the alleged bones and skeleton of deceased were recovered at the instance of both the accused persons as the recovery thereof is doubtful. The prosecution has also been able to prove the recoveries effected from the possession of accused persons. The prosecution has failed to prove its case against both the accused persons beyond all reasonable doubts. Hence, both the accused persons are acquitted for the offences u/s 363/302/201/34 IPC. Regular bail application of accused Kishore (A-1) was also pending and consequently the same becomes infructuous and stands disposed of accordingly.
48. They are directed to furnish personal bond in the sum of Rs. 50,000/- each with one surety each in the like amount u/s 437A CrPC.
Announced through CISCO Webex APP
today i.e. on 11th of February, 2022 (Shivaji Anand)
Additional Sessions Judge-04
North District/Rohini Courts/Delhi
SC No. 57355/2016 FIR no. 264-12 PS Alipur State Vs Kishore & Ors. Page 69 of 69