Delhi District Court
"Anoop Joshi vs . State" 1992(2) C.C. Cases 314(Hc) ... on 28 August, 2023
IN THE COURT OF ASJ (FTC)-02, SOUTH DISTRICT,
SAKET COURTS
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-003612-2016
SC NO. 7798/16
STATE V. AJAY SHRAWAN AND OTHERS
FIR NO. 239/16
PS: FATEHPUR BERI
U/S: 302/120B/201/34 IPC
State
Versus
1. Ajay Shrawan,
s/o Ram Chander,
r/o. H. No. C-1194/95, Tigri Colony,
JJ Colony, Khanpur,
New Delhi.
2. Vishal,
s/o Late Sh. Shyam Lal,
r/o H.no. C-1194/95, Tigri,
JJ Colony, Khanpur,
New Delhi.
3. Rahul @ Parul,
s/o Sh. Ashok Kumar Pandey,
r/o C-1357, Tigri,
JJ Colony, Sangam Vihar,
New Delhi. ... Accused persons
DATE OF INSTITUTION : 01.08.2016
DATE OF JUDGMENT/ ORDER : 28.08.2023
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Brief facts of the case are that a call was received vide DD no. 11A dated 27.04.2016 at 06.15 AM regarding recovery of FIR no. 239/16 State v. Ajay Shrawan and others Page no. 1 of 42 dead body of a male person. On the said information, SI Vikas Rana along with Ct. Kapil reached at the spot i.e. road going towards 1st Avenue, Balraj Scheme, village Bhati Kalan and road between Vijay Farm and Farm no. 10 (Gurbakshi Singh's farm).
Upon arrival at the spot, they found a male dead body whose face was covered with black colour cloth and he was lying upside down. Crime team was called for investigation. Photographs were taken from different angles. There was also a ligature mark on the neck of the deceased and there was blood on the mouth of the deceased. On the basis of this incident, present FIR no. 239/16 was registered.
2. During the investigation, name of the deceased was revealed as Ramesh, husband of Usha Devi. Briefly case of the prosecution is that deceased Ramesh was taken along from his house on 26.04.2026 at around 08.00 PM by accused Rahul and thereafter, he did not return back and his dead body was found on the next day. Allegedly, accused Ajay Shrawan was having affair with Seema (sister-in-law of the deceased) and on 05.04.2016 he was caught with Seema in the house of Ramesh in objectionable circumstances. When objected by family members of Ramesh he left extending threat to kill Ramesh. Accordingly, he along with other two accused persons Rahul @ Parul and Vishal allegedly entered into criminal conspiracy to kill Ramesh and in pursuance to the said criminal conspiracy all the accused persons murdered Ramesh on the intervening night of 26.04.2016 and dumped the body on the place of recovery. Their involvement was found on the basis of the statements of the witnesses, recovery of articles FIR no. 239/16 State v. Ajay Shrawan and others Page no. 2 of 42 such as motorcycle, Banner used in offence and the mobile of Ramesh and the call detail records of their mobile phone numbers indicating their location at same place on the relevant point of time. Various exhibits were seized by the Investigating officer during the investigation. Accused persons were accordingly arrested.
3. After the conclusion of the investigation carried out in the FIR no. 239/16, police filed the charge sheet against the accused persons namely Ajay Shrawan, Vishal and Rahul @ Parul for commission of offences U/s 302/120B/201/34 IPC.
4. Vide Order dated 01.08.2016, Ld. Metropolitan Magistrate concerned took cognizance of the offences u/s 302/120B/201/34 IPC and accused persons were called upon to face the trial. Accordingly, they were supplied with the charge sheet and other relevant documents in compliance to section 207/208 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 11.08.2016. During trial, two supplementary charge sheets were filed regarding RFSL reports, CDRs, CAFs of different mobile numbers and CFSL report. Copy of the same were also supplied to the accused persons.
CHARGE
5. Vide order dated 27.01.2017, charge for the offences punishable u/s 120B IPC r/w section 34 IPC and u/s 302/201 r/w FIR no. 239/16 State v. Ajay Shrawan and others Page no. 3 of 42 section 120B and 34 IPC was framed by the Ld. Predecessor of this Court against the accused persons namely Ajay Shrawan, Vishal and Rahul @ Parul who pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
6. Prosecution has examined 45 (forty five) prosecution witnesses (hereinafter referred to as PW) in total to prove its case. The testimony of prosecution witnesses in brief are discussed as follows:-
7. PW1 Sh. Ravinder deposed that on 27.04.2016 he was going for a morning walk and while he reached at Farm no. 10, Bhati Kalan, he saw a person lying on the ground whose face was covered with a cloth. This witness made call at 100 number to the police from his mobile no. 9958609976. This witness correctly identified the photographs of body of person which he had seen on 27.04.2016. Same are marked as Ex. A1 to A12. PW1 was cross examined on behalf of accused persons.
8. PW2 Sh. Pappu was the father of Usha (wife of deceased Ramesh) who deposed that one day accused Ajay was caught in the room of Seema in compromising state and this incident was seen by deceased Ramesh and his father Lal Chand. PW2 further deposed that accused Ajay Shrawan threatened Ramesh (since deceased) that accused would see him and after 20 FIR no. 239/16 State v. Ajay Shrawan and others Page no. 4 of 42 days later Ramesh was murdered. PW2 further deposed that on 26th April, Ramesh (deceased) left his house at around 08:00 PM with accused Rahul and did not came back as informed by his daugther Usha at around 11.00 PM. PW2 further deposed that his daughter contacted Ramesh (since deceased) on his mobile whereby he informed her that he was in the company of accused Rahul, Kunal and Ajay and thereafter his mobile was found switched off.
9. PW2 further deposed that on 27th April, he along with his daughter went to police station and lodged a missing report qua his son-in-law Ramesh (deceased). Thereafter, somebody brought a newspaper from neighbourhood and shown photograph of Ramesh and after seeing the same they again visited the police station from where they were taken to mortuary and this witness identified the dead body of Ramesh. PW2 further deposed that he along with his daughter came back to PS Neb Sarai where all the three accused persons present in the court were already arrested by the police by that time. This witness identified the accused Ajay and Vishal in the Court during the trial. PW2 was cross examined on behalf of accused persons.
10. PW3 Ms. Usha, wife of the deceased was one of the star witness of prosecution who had last seen accused Rahul taking her husband Ramesh with him on 26.04.2016. PW3 deposed that she was married to Ramesh (deceased) and used to reside with her parents in law Lal Chand and Smt. Malka Rani. She further deposed that her jethani Seema along with her children FIR no. 239/16 State v. Ajay Shrawan and others Page no. 5 of 42 also resided in the same house on separate floor and she had an affair with accused Ajay. PW3 further deposed that the husband of Seema had already expired at the time of her marriage. Seema used to quarrel with her on account of property and she used to behave rudely with her and parents-in-law as well. PW3 further deposed that her late husband and father-in-law had caught accused Ajay and Seema in compromising situation about 20 days prior to the incident and at that time accused Ajay threatened to kill her husband.
11. PW3 further deposed that on 26th April, 2016, at about 08.00 PM, accused Rahul came to her house, called her husband and took him away towards Bhati mines. At about 11.00 PM, she made a call to her husband who told her that he was in the company of accused Rahul, Vishal and Kunal. PW3 further deposed that when her husband did not return she again tried to contact him but his phone was switched off. PW3 further deposed that on 28th April, she along with her mother in law and her father visited PS Neb Sarai after somebody showed her photographs in newspaper regarding a dead body lying in Bhati Mines. From the police station Jauna Pur they were taken to Max hospital where PW3 identified the dead body. PW3 further stated that she reported the missing of her husband on 28th and the next morning she met accused Rahul who told her that they all had come away from Bhati. This witness identified the accused persons namely Ajay, Vishal and Rahul before the court during trial. PW3 exhibited on record the copy of bill of mobile phone Videocon Z41NITE+vide IMEI no. 911459901522264 dated 28.01.2016 purchased from Unique Tele Systems issued in the name of her FIR no. 239/16 State v. Ajay Shrawan and others Page no. 6 of 42 husband Ramesh as Ex. PW3/A. PW3 further identified the mobile phone and battery as Ex. P-1 (Colly). PW3 was cross examined on behalf of accused persons.
12. PW4 Ms. Kavita deposed qua the motorcycle no. DL- 3SBS-7636 and stated that accused Vishal is known to her brother Naresh borrowed the motorcycle on 25.04.2016 stating some emergency and returned back the same on 30.04.2016. PW4 further deposed that police had come to her house on 27/28.04.2016 and inquired about the vehicle. Police took possession of motorcycle on 30.04.2016. PW4 identified accused Vishal before the court during trial. PW4 was cross examined on behalf of accused persons.
13. PW12 Sh. Naresh, brother of PW4 deposed more or less on the same lines as that of PW4 Ms. Kavita, however, as per this witness Vishal did not return back the motorcycle. In addition to that, he exhibited on record copy of RC of motorcycle bearing no. DL-3SBS-7636 as Ex. PW12/A. PW12 identified accused Vishal before the court during trial. PW12 was cross examined on behalf of accused persons.
14. PW5 Sharif Ansari deposed that he was caretaker at F- 250, Shutterwali Gali, Khanpur, Devli in which a room was let out to accused Vishal by PW5. This witness correctly identified the accused Vishal in the Court. PW5 stated that he could not recollect the mobile number of accused Vishal nor he has any information about the user of mobile number 8285666267. PW5 was cross FIR no. 239/16 State v. Ajay Shrawan and others Page no. 7 of 42 examined on behalf of accused persons.
15. PW6 Jitender Kumar deposed that accused Rahul is the son of his sister in law. This witness exhibited on record the death certificate of his father in law Charan Singh as Ex. PW6/A and copy of customer application form as mark PW 6/B and copy of Aadhar Card as Mark PW6/C. This witness stated that he had no knowledge about the usage of mobile number 7529943636. As this witness has not supported the case of the prosecution, he was cross examined by the Ld. Additional PP for the State with the permission of the Court and was also cross examined on behalf of accused persons.
16. PW7 Smt. Malka Rani deposed more or less on the same lines as that of PW3 Usha. PW7 identified accused persons before the court during trial. PW7 was cross examined on behalf of accused persons.
17. PW8 Dr. Antara Debbarma is the Forensic Expert who proved and exhibited on record the Post Mortem report of deceased Ramesh as Ex. PW8/A and also gave subsequent opinion on the same as Ex. PW8/B. As per the opinion given by this witness the cause of death of deceased was given as Asphyxia as a result of ligature strangulation of neck and as per the subsequent opinion the same could be possible by the white colour dirt stained banner Ex. P2 submitted by the IO. PW8 was cross examined on behalf of the accused persons.
FIR no. 239/16 State v. Ajay Shrawan and others Page no. 8 of 42
18. PW9 Dr. Baikunth Nath and PW10 Dr. Anil Kumar, Medical Officers, Tihar Jail deposed qua the taking of blood sample of accused Rahul and Vishal on the request of IO. They sealed the blood in gauze and the sample and handed over to the police officials. Both these witnesses were not cross examined on behalf of accused persons.
19. PW20 Ct. Harender, PW22 HC Satpal, HC 23 SI Lokender, PW24 ASI Devender, PW25 ASI Kishan Chand, PW 28 Insp. Mukesh Jain, PW30 SI Ajay, PW31 HC Santosh Kumar were the formal police witnesses who proved and exhibited on record various documents pertaining to preparation of PCR form, FIR bearing no. 368/16 u/s 365 IPC, preparation of present FIR bearing no. 239/16 u/s 302/201 IPC, endorsement on rukka and certificate u/s 65B of Indian Evidence Act, DD no. 11A, DD no. 37A, DD no. 59B, report regarding the inspection of the place of occurrence, the entries pertaining to exhibits/sealed pullanda at serial no. 1127, 1130, 1131, 1205, 1215 in malkhana register, road certificate vide which earth control was sent to FSL. Same are exhibited as Ex. PW20/A, Ex. PW22/A, Ex. PW23/A, Ex. PW23/B, Ex. PW23/C, Ex. PW24/A, Ex. PW25/A, Ex. PW28/A, Ex. PW30/A, Ex.PW31/A, Ex.PW31/B, Ex.PW31/C, Ex.PW31/D, Ex.PW31/E, Ex.PW31/F in the testimony of above witnesses respectively. All the witnesses were cross examined on behalf of accused persons except PW23.
20. PW11 Ct. Arvind, PW15 Ct. Harish Kumar, PW16 Ct. Ashudev, PW17 HC Krishan Kumar, PW18 Ct. Amar Singh, PW-19 Ct. Rakesh, PW21 HC Subhash, PW27 Ct. FIR no. 239/16 State v. Ajay Shrawan and others Page no. 9 of 42 Kapil, PW29 HC Rajiv, PW36 SI Manjeet Kumar, PW40 HC Ranveer Kumar, PW 42 Capt. Dr. Dhanjay Rai, PW43 Insp. Vijay Kumar were the police witnesses who deposed qua their limited role in the investigation qua deposition of 17 exhibits in the CFSL office, delivering the copy of FIR of the present case to the senior officials and court, taking photographs of the place of occurrence, taking the dead body lying in Bhati Mines to hospital and circulated the notice i.e. UIDB letter to nearby police posts and police control room, deposition of viscera box and the sample seal with RFSL office Chanakaya Puri vide road certificate no. 66/21/16 and acknowledgement receipts, collection of blood samples of accused persons vide seizure memos, informed the control room about the recovery of dead body, prepared supplementary charge sheet and filed the same before the court, deposition of one sealed box containing a mobile phone at RFSL, Chanakya Puri and handed over the acknowledgement slip to MHC(M), collection of the blood in gauze of accused persons, sealed and handed over the same to the police .PW42/A and the application to the police as Ex.PW42/B, deposition of two supplementary charge sheet and have exhibited various documents such as Ex. PW16/1 to Ex. PW16/12 (photographs), Ex. PW19A and Ex. PW19/B, Ex. PW21/A to Ex. PW21/C, Ex. PW40/A and PW40/B, Ex.PW42/A, Ex.PW42/B, Ex.PW43/A and Ex.PW43/B. All these witnesses were cross examined on behalf of accused persons except PW15, PW36 and PW40.
21. PW13 Sh. Chander Shekhar is the Nodal officer, Bharti Airtel, who proved and exhibited on record pertaining to mobile nos. 9971773716 and 9910465668 both issued in the name FIR no. 239/16 State v. Ajay Shrawan and others Page no. 10 of 42 of Ramesh Kumar as Ex.PW13/A to Ex. PW13/D . PW13 further proved and exhibited on record, the documents pertaining to mobile number 8800456391 issued in the name of Usha (wife of Ramesh) as Ex.PW13/E and Ex.PW13/F. PW13 further exhibited on record the documents pertaining to mobile no. 9871326945 issued in the name of Pappu as Ex.PW13/G and Ex.PW13/H. PW13 further proved and exhibited on record the documents petaining to mobile no. 8527033709 issued in the name of Seema as Ex.PW13/I and Ex.PW13/J. This witness further proved and exhibited on record certificate u/s 65B of Indian Evidence Act as Ex.PW13/K and CDRs of the above-said mobile numbers as Ex.PW13/L (colly). PW13 was cross examined on behalf of accused persons.
22. PW14 Sh. Praveen Kumar deposed that mobile phone number 8285228143 was issued in the name of his brother Jai Prakash and it was used by him. He further deposed that he used to talk with accused Vishal from this number on the mobile number 8285666267 that perhaps belonged to accused Vishal. This witness exhibited on record the CAF pertaining to mobile no. 8285228143 along with driving license of his brother Jai Prakash as Ex.PW14/A (Colly). PW14 was cross examined on behalf of accused persons.
23. PW26 ASI Ashok exhibited on record the DD no. 37A dated 05.04.2016 as PW26/A with respect to apprehension of a thief. As per this witness, he attended the call and visited the spot at C-1207, Tigri Colony and met the called Lal Chand who informed him that it was not a thief but his nephew who had FIR no. 239/16 State v. Ajay Shrawan and others Page no. 11 of 42 jumped down from the terrace and the caller has mistakenly called the police. He recorded the statement of caller Lal Chand and returned back to PS vide arrival entry DD no. 59D as Ex. PW26/B. PW26 was cross examined on behalf of accused persons.
24. PW32 HC Ramesh deposed qua the manner and his involvement in the investigation. As per PW32, on 30.04.2016 he along with Insp. Hanumant Singh visited C Block, Tigri and met secret informer. IO talked to the secret informer who lead the police party to house no. 1194/95, C Block, Tigri and pointed out accused Vishal and Ajay Shrawan who were involved in the present case. Both the accused persons were apprehended and thereafter at their instance the third accused Rahul was apprehended from C-1357, Tigri. PW32 exhibited the arrest memos of the accused persons as Ex. PW32/A to Ex. PW32/C respectively and their personal search memos as Ex. PW32/D to Ex. PW32/F respectively and their disclosure statements as Ex. PW32/G to Ex. PW32/I respectively.
25. PW32 further deposed that all the accused persons led the police party to Ram Dev Park where they entered into conspiracy and a pointing out memo was prepared as Ex. PW32/J and the site plan as Ex. PW32/K. PW32 further deposed that at the instance of the accused persons motorcycle bearing no. DL-3SBS- 7636 was recovered near the wall of the school that was used in the commission of offence in the intervening night of 26/27.04.2016. The said motorcycle was seized vide seizure memo Ex. PW32/L. PW32 HC Ramesh further deposed that at the FIR no. 239/16 State v. Ajay Shrawan and others Page no. 12 of 42 instance of accused Ajay mobile phone of deceased Ramesh was recovered from his house vide seizure memo Ex. PW32/M and the site plan is Ex. PW32/N. PW32 further deposed that accused persons led the police party to Chhatarpur Bhati Mines and they all had shown the place where they all had murdered the deceased Ramesh by strangulation with the help of banner at the road between farmhouse no. 10 and Vijay farmhouse. IO prepared the pointing out memo of place of occurrence as Ex. PW32/O. Another pointing out memo was prepared at the instance of accused Vishal as Ex. PW32/P.
26. PW32 further deposed that accused persons led the police party to the place where they all had thrown the said banner after committing the murder of Ramesh i.e. the dry nala near B14 farmhouse. Accused Rahul himself picked up the banner from the drain that was seized vide seizure memo Ex. PW32/Q and the site plan was prepared as Ex. PW32/R. Thereafter, the case property was deposited in malkhana. PW32 identified accused persons before the court during trial. PW32 further identified the case property as Ex. P1 (mobile phone with battery), Ex. P2 (banner) and Ex. P3 (motorcycle bearing no. DL-3SBS-7636). PW32 was cross examined on behalf of accused persons.
27. PW33 Sh. Shishir Malhotra, Nodal Officer Aircel proved and exhibited on record the Customer Application Form (referred as CAF in short) of mobile phone numbers 8802940644 (issued in the name Marda Devi), 7529943636 (issued in the name Charan Singh), 8285666267 (issued in the name Manoj Kumar Poddar), 7210292472 (issued in the name Ajay Sharman) and FIR no. 239/16 State v. Ajay Shrawan and others Page no. 13 of 42 7210292473 (issued in the name of Ajay Sharman) as Ex.PW33/1 to Ex.PW33/5 (all consisting 2 pages). PW-33 further exhibited on record the Call detail record pertaining to the aforesaid mobile numbers for the period 20.04.2016 to 30.04.2016 as Ex.PW-33/A to PW-33/E. He further exhibited on record the ID chart/ location chart of aforesaid mobile numbers as Ex.PW33/F (Colly), certificate u/s 65B of IEA as Ex.PW33/G, forwarding letter vide which all the documents were handed over to IO as Ex.PW33/H. PW33 further proved and exhibited on record certified copies of CAF of mobile number 9650570045 (issued in the name of Sharif Ansari) as Ex.PW33/I, CDR of said number as Ex.PW33/J CDRs along with cell ID chart as Ex.PW33/K and certificate u/s 65B of IEA as Ex.PW33/L and the forwarding letter vide which all the documents were handed over to the IO as Ex.PW33/M. He also proved and exhibited the CAF of mobile number 8285228143 (issued in the name of Jai Prakash) as already Ex.PW-14/A (Colly), the CDR for the period 20.04.2016 to 30.04.2016 as Ex.PW33/N, Cell ID chart/ location chart of the above said mobile number as Ex.PW33/O, certificate u/s 65B of IEA as ExPW33/P and the forwarding letter vide which all the documents pertaining to mobile number 8285228143 were handed over to IO as Ex.PW33/Q. PW33 was cross examined on behalf of accused persons.
28. PW34 SI Vikas Rana deposed qua the manner and his involvement in the investigation. PW34 deposed more or less on the same lines as that of PW32 HC Ramesh. PW34 relied upon the documents exhibited on record by PW32. Apart from the same this witness deposed that on receiving the DD no. 11A he visited FIR no. 239/16 State v. Ajay Shrawan and others Page no. 14 of 42 the spot and found a male dead body. He prepared the rukka and made the endorsement on the DD entry as Ex. PW34/A on the basis of which FIR was registered. This witness joined the investigation with the IO and exhibited on record the seizure memo of earth control lifted from the spot as Ex. PW34/B, application for post mortem as Ex. PW34/C, form for death report as Ex. PW34/D, statements of Malka Rani and Pappu while identification of dead body as Ex. PW34/E and Ex. PW34/F respectively and dead body handing over memo receipt as Ex. PW34/G. PW34 SI Vikas Rana further exhibited on record the seizure memo of exhibits received from Autopsy surgeon as Ex. PW34/H. PW34 further exhibited on record the flow chart of the mobile phones of the accused persons prepared by him as Ex. PW34/I and case property i.e. banner as Ex. P2, mobile phone and battery as Ex. P1 (Colly) and bike bearing no. DL3SBS7636 as Ex. P3. PW34 identified the accused persons before the court during trial. PW34 was cross examined on behalf of accused persons.
29. PW35 Dr. Subrat Kumar Choudhary, Senior Scientific officer proved and exhibited on record the CFSL report prepared by him Ex.PW35/A. PW37 Dr. Sweta Sinha, Forensic expert proved and exhibited on record her report qua viscera of deceased Ramesh as Ex.PW37/A. PW41 Dr. B. K. Mohapatra conducted the biological examination of parcels received to him and proved and exhibited on record the detailed report of the same as Ex.PW41/A. All the three witnesses were not cross examined on behalf of accused persons.
FIR no. 239/16 State v. Ajay Shrawan and others Page no. 15 of 42
30. PW44 Dr. Om Prakash proved and exhibited on record the MLC of deceased as Ex.PW44/A. PW44 was cross examined on behalf of the accused persons.
31. PW38 Sh. Kailash Kumar, JFACE, Computer Forensic Unit proved and exhibited on record his report pertaining to retrieving of data from the seized mobile phone as Ex. PW38/A, CD as Ex. PW38/1. PW38 was not cross examined on behalf of accused persons.
32. PW39 Sh. Surender Kumar proved and exhibited on record the CAF of mobile number 9958609976 issued in the name of Rami, son of Nirmal, as Ex.PW39/A, copy of cell ID chart as Ex.PW39/B, the CDR as Ex.PW39/C and certificate u/s 65B of IEA regarding correctness of the said CDR as Ex.PW39/D. PW39 was not cross examined on behalf of accused persons.
33. PW45 Insp. Hanumant Singh is the Investigating Officer who deposed qua the manner and his involvement in the investigation. PW45 deposed more or less on the same lines as that of PW32 HC Ramesh and PW34 SI Vikas Rana. PW45 relied upon the documents exhibited on record by PW21, PW26, PW32 and PW34. In addition to that, PW45 exhibited on record request letter for preserving of dead body of deceased in AIIMS hospital through HC Krishan Kumar as Ex. PW45/A. PW45 further exhibited on record the unscaled site plan at the instance of SI Vikas Rana as Ex. PW45/B, site plan of the place where the motorcycle recovered was prepared as Ex. PW45/1. PW45 further exhibited on record the request letter to Jail Superintendent for FIR no. 239/16 State v. Ajay Shrawan and others Page no. 16 of 42 collecting blood of accused persons vide letter Ex. PW42/B, Ex. PW45/2 and Ex. PW45/3. During investigation, exhibits were sent to FSL vide RC no. 71/21/16 and RC no. 66/21/16 Ex. PW45/4 and Ex. PW19/A respectively. PW45 further deposed that during the course of investigation, call details of accused persons, deceased Ramesh, his wife Usha, Pappu Ram and Seema were examined by SI Vikas Rana on the instruction of PW45 and are Ex. PW45/5 (Colly). PW45 further deposed that during the investigation, he prepared various documents vide letter Ex. PW45/6, collected FIR no. 368/16 regarding the abduction of deceased Ramesh of PS Neb Sarai as Ex. PW45/7. PW45 further proved and exhibited on record DD no. 24A and DD no. 6A as Ex. PW45/8 and Ex. PW45/9. PW45 identified accused persons before the court during trial. PW45 further identified the photographs as Ex. A1 to Ex. A12, case property as Ex. P1, Ex. P2 and Ex. P3. PW45 also exhibited the statement of Malka Rani recorded on 29.04.2016 as Ex. PW45/D1. PW45 was cross examined on behalf of accused persons.
34. No other PW was left to be examined, hence PE was closed.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
35. Statement of accused persons recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them.
FIR no. 239/16 State v. Ajay Shrawan and others Page no. 17 of 42
36. It is stated by accused Ajay Shrawan and Vishal that on 27.04.2016, they were called by PS Neb Sarai police officials for investigation. Thereafter, on 28.04.2016, the police officials from PS Fatehpur Beri had taken them into the custody and shown the arrest on 30.04.2016. It is further stated that they have no concern with the offence in question. They are innocent and have been falsely implicated by the police for ulterior motives.
37. It is stated by accused Rahul @ Parul that he is one of the friend of the accused Vishal and therefore, the police officials with connivance of some family members of deceased falsely implicated him in this case. It is further stated that he is innocent and have no concern with the alleged offence.
38. All the accused persons opted not to lead any defence evidence.
ARGUMENTS:
39. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony have remained unrebutted. The testimony of star witness PW3 and PW7 has also proved the motive of killing and their testimony remained uncontroverted, thus, proving the case of the prosecution. It is further submitted that entire chain of circumstances have been duly established by the cogent evidence lead on record leaving no doubt in proving the guilt of the accused persons. Hence, accused persons are liable to be convicted for the FIR no. 239/16 State v. Ajay Shrawan and others Page no. 18 of 42 offences u/s 302/120-B/201/34 IPC.
40. On the other hand, Ld. Counsels for accused persons have stated that there is no legally sustainable evidence against the accused persons. It is further argued that the testimony of star witnesses contained material discrepancies and contradictions that render their testimony highly unreliable. It is further argued that the case of the prosecution could not be established beyond reasonable doubt as the recoveries shown to have been effected at the instance of accused persons are also doubtful as no independent public witness has been made to join the proceedings. It is further argued that the prosecution has failed to prove the complete chain of circumstances, therefore, the accused persons are entitled to the benefit of doubt and they deserve acquittal.
FINDINGS:
41. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsels for the accused persons have been heard. Evidences and documents on record perused carefully. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons have been indicted for the offences u/s 302/120-B/201/34 IPC.
42. Now coming to the evidence lead on record by the prosecution in order to prove its case. Since the case of the prosecution is based on the circumstantial evidence, it would be apt to have a look on the law in this regard. Hon'ble Apex Court, FIR no. 239/16 State v. Ajay Shrawan and others Page no. 19 of 42 in its much-celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, held that while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established.
"153. xxx xxx (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so 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".
A similar view has been reiterated by the Hon'ble Supreme Court in State of UP v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttranchal (2009) 15 SCC 259.
43. The aforesaid five cardinal principles have been reiterated by the Hon'ble Supreme Court of India in numerous judgments. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should FIR no. 239/16 State v. Ajay Shrawan and others Page no. 20 of 42 be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
44. Keeping these conditions in mind and in light of the aforesaid guiding principles of law, this court shall now proceed with the case in hand and shall give findings with respect to each of the circumstance.
LAST SEEN CIRCUMSTANCE:-
45. In case of State of U.P. v. Satish, Appeal (Crl.) 256- 257 of 2005, with regard to last-seen theory following was held:
"The last seen theory comes into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses."
FIR no. 239/16 State v. Ajay Shrawan and others Page no. 21 of 42
46. Prosecution has relied upon testimony of PW3 Usha and PW7 Malka Rani who claimed to have seen accused Rahul with whom the deceased Ramesh went on the evening of 26.04.2016 and subsequently on next morning his dead body was recovered. This court is of the view that the prosecution has failed to establish this circumstance beyond reasonable doubt for the following reasons:
46.1 PW3 in her examination-in-chief has stated that on 26.04.2016, accused Rahul came to her house at about 8 pm and called her husband and took him away. She further stated that at around 11 pm when she made call to her husband, he told her that he was in the company of Rahul, Kunal and Vishal. During the cross examination, PW3 stated that she has never met Rahul before 26.04.2016. She further stated that she cannot recall what kind of clothes Rahul was wearing when he came to call her husband. In her statement u/s 161 Cr.P.C. PW3 mentioned mobile number of Rahul whereas in her cross examination she stated that she do not know his mobile number. The above statements made by PW3 creates doubt in respect of her acquaintance with Rahul and seeing him taking his husband Ramesh on 26.04.2016. The testimony of PW3 in this respect is also not believable as she did not stated the said fact to the police while recording the missing report of her husband on 28.04.2016. The DD entry exhibited by PW45 as Ex.PW45/9 dated 28.04.2016 reflects the content of the PCR call mentioning the status of missing of deceased Ramesh but nowhere it mentions that Ramesh was taken by the accused Rahul on the date of incident. It is also pertinent to note that PW3 during her cross-examination stated that she has met accused FIR no. 239/16 State v. Ajay Shrawan and others Page no. 22 of 42 Rahul on the morning of 27.04.2016 and asked her about her husband but despite that she did not alleged or reported to the police in her complaint lodged on 28.04.2016 that it was Rahul who took the deceased along with him. In subsequent part of her cross examination PW3 stated that she did not met Rahul after 26.04.2023. Had she seen the accused Rahul this fact should have formed part of her complaint lodged with police. It is also important to note that PW2 Pappu in his cross examination stated that her daughter i.e. PW3 Usha told him that Ramesh (deceased) had gone with the accused persons present in the court and it was accused Vishal who called his son in law Ramesh (deceased) which is again a complete contradictory statement to the version of PW3 Usha. Moreover, the claim of PW3 is contradicted by the statement of PW7 as per whom the deceased Ramesh went for his work on the date of incident and did not return back in the evening. So question of Rahul taking Ramesh from his house comes under cloud. In view of the material discrepancies discussed above, the testimony of PW3 with respect to last seen circumstance does not inspire confidence.
46.2. Now coming to the testimony of PW7 Malka Rani. PW7 in her examination in chief has stated that on the date of incident at about 8 pm accused Rahul came to her house and called Ramesh and took him along. During cross-examination of PW7 she admitted that she did not notice the clothes worn by Rahul when he came to take Ramesh. PW7 further stated that she was aware about the name of Rahul as he used to come to her house whereas in subsequent part of her cross-examination this witness stated that she do not know Rahul prior to the date of incident. PW7 has also not reported about the fact that Rahul took FIR no. 239/16 State v. Ajay Shrawan and others Page no. 23 of 42 Ramesh on the date of incident to the police while lodging of the missing report on 28.04.2016 despite the fact that she was with her daughter in law PW3 Usha who claimed to have met Rahul on 27.04.2016 and asked him about the whereabouts of Ramesh.
Above all this witness during her cross-examination stated that her son Ramesh had gone for work on the date of incident and he did not return home from the work on 26.04.2016 which contradicts her own statement of seeing Rahul taking her son from her house. PW3 Usha during her cross-examination stated that when her husband left with Rahul she came downstairs and her in-laws asked her and she told them that Rahul had come to call Ramesh and he had gone out. PW3 further stated that her parents-in-law were at ground floor at that time and they did not come out. The aforesaid statements of PW3 also contradicts the claim of PW7 seeing the accused Rahul on 26.04.2016.
46.3. Further, PW7 in her examination in chief stated that accused Ajay Shrawan pulled out the SIM out of the phone of her son Ramesh (since deceased) and her son Ramesh told her that he was in the company of his friends and he will come in the morning where as during her cross examination, she stated that no conversation could take place even between her daughter-in-law and her son Ramesh as the mobile was broken. She further stated that neither her daughter-in-law could speak anything on the phone nor her son could speak anything on phone as the phone was immediately snatched and broken. On the contrary, PW7 in her statement u/s 161 Cr.P.C. stated that she was informed about the call by her daughter-in-law on the next morning. Further, in her cross examination she stated that Vishal and Ajay were also present together with Rahul when Rahul had come to call Ramesh FIR no. 239/16 State v. Ajay Shrawan and others Page no. 24 of 42 at 08.00 PM and she had not told this fact to police. Meaning thereby, the version of PW7 is inconsistent with the statement of PW3 and it is self contradictory also on every stage of her testimony with respect to role of accused persons. Hence, in view of the aforesaid statements testimony of PW7 also do not inspire confidence.
46.4 PW45, IO Insp. Hanumant Singh during his cross examination admitted the recording of the statement of Malka Rani on 29.04.2016 exhibited as Ex. PW45/D1. In the said statement, PW7 stated that on 26.04.2016 her son Ramesh (since deceased) left for Bhati Mines for getting household articles of his bua (father's sister) and came back in the evening and thereafter at around 08.00 PM he again left the house without informing anyone. PW7 further stated in the aforesaid statement that her daughter-in-law Usha called Ramesh at 11.15 PM who inturn told that he will come in the morning and asked Usha to go for sleep. From the aforesaid statement it is clear that PW7 has also nowhere stated about the fact of accused Rahul taking Ramesh with him on the date of incident which is contradictory to the statements made by PW3 and PW7 before the Court.
47. The testimony of PW3 and PW7 had material discrepancies as discussed above and it fails to establish the fact of Rahul taking Ramesh on the date of incident as a last seen circumstance beyond any reasonable doubt.
MOTIVE:-
48. The prosecution has relied upon the testimony of PW2 Pappu, PW3 Usha and PW7 Malka Rani to establish that the FIR no. 239/16 State v. Ajay Shrawan and others Page no. 25 of 42 accused Ajay Shrawan had the motive to kill Ramesh and the other accused persons joined him in doing so. As per the case of prosecution, accused Ajay Shrawan had intimate relations with Seema (daughter-in-law of PW7 and sister-in-law of deceased Ramesh) and he was caught with Seema in compromising position by the deceased Ramesh and his family members and when Sh. Lal Chand, father-in-law of Seema called the police at 100 number, Ajay Shrawan left the house extending threat to Ramesh.
49. Now coming to the testimony of prosecution witnesses one by one that deposed qua the motive of accused Ajay Shrawan. As far as testimony of PW2 Pappu is concerned, his testimony is based upon information provided by her daughter-in-law, Usha PW3. During his cross-examination PW2 admitted that he was not present on the day when Seema and Ajay were found to be in single room and he was told about this incident later on. He further admitted during his cross-examination that neither Ajay or any other person has extended threat to Ramesh in his presence. This witness further admitted during his cross-examination that he cannot tell as to who were the persons involved in the incident of the death of his son-in-law Ramesh. PW2 further admitted that he did not disclose the name of any of the accused persons to the police regarding their involvement in the death of his son in law Ramesh. He also admitted that he has not mentioned in his previous statement that Ramesh was accompanied by Rahul, Kunal and Ajay as stated by him in his examination-in-chief recorded before the Court. At the end, PW2 further admitted that he do not know anything about this case and his statement was not recorded by the police. Hence, the aforesaid testimony of PW2 did FIR no. 239/16 State v. Ajay Shrawan and others Page no. 26 of 42 not support the case of prosecution on any aspect rather his testimony falls in the realm of hearsay and cannot be relied upon.
50. Now coming to the testimony of PW3 Usha, who in her examination in chief deposed that Seema had an affair with accused Ajay Shrawan and her late husband Ramesh and her father in law had caught them in a compromising position twenty days prior to the incident. She further stated that at that time, Ajay threatened to kill her husband and that is what happened later on. During her cross-examination PW3 stated that her father in law had taken photographs and prepared video when Ajay was found with Seema in her room but no such photographs or video has been placed on record in evidence led by the prosecution. Further, PW3 during her cross-examination stated that she and her husband made a complaint to the police when Ajay snatched her husband's phone that was 10/15 days prior to the incident in question at the time when Ajay and Seema were found in objectionable position. However, in subsequent part of her cross-examination PW3 admitted that she had not mentioned about the threat extended by accused Ajay to her husband Ramesh when she had complained to the police about the snatching of mobile phone. In fact, no such complaint filed by PW3 against accused Ajay is adduced in evidence on record. As per PW2 Pappu, Ajay and Seema were caught in the room and the incident was seen by his son-in-law and Lal Chand but on the contrary PW3 also claimed to have witnessed the said incident. The statement of PW3 in her cross examination denying the fact of extending threat by the accused Ajay, coupled with the aforesaid discrepancies in her testimony failed to substantiate the aspect of motive on the part of accused FIR no. 239/16 State v. Ajay Shrawan and others Page no. 27 of 42 Ajay Shrawan.
51. As far as testimony of PW7 Malka Rani is concerned, she has stated in her examination in chief that accused Ajay Shrawan and her daughter in law Seema threatened her son Ramesh to kill him, however, simultaneously this witness stated that no one caught Ajay and Seema in compromising position. During her cross-examination PW7 stated that she had seen accused Ajay and Seema in objectionable posture and they were caught in the bathroom which is contrary to the statement made by her in her examination-in-chief and also contrary to the testimony of PW3 Usha as per whom only deceased Ramesh and his father Lal Chand has caught Ajay Shrawan and Seema in the room. PW7 also admitted that no one had taken the photograph of accused Ajay and Seema when they were caught which is again contradictory to the statement of PW3 Usha. The testimony of PW7 is contrary to the complaint filed with respect to the incident taken place on 05.04.2016 where no such fact was reported to the police nor it is mentioned there that accused Ajay Shrawan threatened Ramesh to kill him which is also proved by the statement made by PW3 during her cross-examination where she admitted to have not mentioned about the threat extended by accused Ajay to her husband Ramesh at the time of filing of complaint to the police. As per document Ex.PW26/A i.e. the DD entry no. 37A and document Ex.PW26/B i.e. DD No. 59B both recorded on 05.04.2016, regarding the PCR call made by Lal Chand, father of deceased are also silent about any threat extended by accused Ajay to deceased Ramesh on 05.04.2016 and in fact the same is also silent about the fact that accused Ajay was caught FIR no. 239/16 State v. Ajay Shrawan and others Page no. 28 of 42 in objectionable position with Seema. Further PW7 during her cross examination stated that accused Ajay had murdered her son for this property but no cogent evidence in this respect has been lead on record. Neither the prosecution has established the ownership of PW7 over the property where she was residing nor her claim was supported by her daughter in law PW3 Usha Devi. Nowhere, it is demonstrated by PW7 that how and in what manner and on which particular occasion accused Ajay tried or shown his intention to grab her property. In view of the discrepancies discussed above, the testimony of PW7 has failed to establish the motive on the part of accused Ajay.
53. Motive may not be necessary in the case of direct evidence but in cases based upon circumstantial evidence the existence of motive becomes significant. Complete absence of motive definitely weighs in favour of the accused. It is an important circumstance which is relevant for assessing the evidence in the given facts and circumstance of the case. Therefore, in view of the discrepancies discussed above, testimony of PW3 and PW7 also failed to substantiate the aspect of motive as alleged by the prosecution. Hence, this crucial link that can form the chain of circumstances could not be established beyond reasonable doubt.
RECOVERY OF MOTORCYCLE USED IN CRIME AT THE INSTANCE OF ACCUSED VISHAL
54. As per the prosecution, the motorcycle bearing no. DL- 3SBS-7636 used in the commission of crime was recovered near FIR no. 239/16 State v. Ajay Shrawan and others Page no. 29 of 42 wall of MCD school, Tigri, B-block at the instance of accused Vishal and the same was seized vide seizure memo Ex.PW32/L on 30.04.2016. At the outset, it is pertinent to note that no public witness has signed the aforesaid documents and it is admitted by recovery witnesses PW32 HC Ramesh and PW34 Insp. Vikas Rana in their cross-examination that no public witness was made to join the recovery proceedings at the time of recovery of motorcycle. PW32 HC Ramesh even stated that IO had not asked any public person to become witness to the recovery of motorcycle Ex.P3, meaning thereby no sincere efforts were made by the police witnesses to join the public persons. Further, the fact that the place of recovery was a public place and admittedly not a secluded place, therefore the possibility of intervention by any third person cannot be ruled out. In absence of any independent public witness a dent is created in the story of prosecution as far as recovery of motorcycle is concerned.
55. Further, PW32 in his examination in chief did not specifically stated that the motorcycle in question was recovered at the instance of accused Vishal rather an Omnibus statement was made stating that accused persons lead the police party to MCD school and pointed out the motorcycle whereas the case of prosecution is that the motorcycle was recovered at the instance of accused Vishal only. Similarly, PW34 in his examination in chief stated that accused Vishal lead the police party to MCD school in D block and pointed out two bikes lying parked there and as disclosed by accused Vishal, the said bikes were used in the commission of offence to ferry away the deceased. The said bikes were seized vide seizure memo Ex. PW32/L. The aforesaid FIR no. 239/16 State v. Ajay Shrawan and others Page no. 30 of 42 statement of PW34 contains material discrepancy as in the present case only one motorcycle has been seized and there is no whisper of second bike being involved in the crime being used by the accused persons. The aforesaid statement of PW34 is in complete contradiction to the testimony of other witness of recovery i.e. PW32.
56. Two other material witnesses with respect to the recovery of motorcycle in question were examined by the prosecution. One, PW4 Kavita and the other one brother of PW4 namely Naresh as PW12. In her examination in chief PW4 stated that accused Vishal borrowed the motorcycle on 25.04.2016 and returned back the same on 30.04.2016. Now, if the motorcycle had been returned to PW4 Kavita on 30.04.2016, then how come the police has claimed to have recovered it from the place alleged herein as per seizure memo Ex. PW32/L. Further PW4 contradicted the version of prosecution by stating in her examination in chief that police took the possession of motorcycle from her house on 30.04.2016. During her cross-examination, PW4 has again stated that the motorcycle was returned at her house at 07:00 AM on 30.04.2016. She further stated that police came to her house at 6 pm on 27.04.2016 and thereafter they did not come. During her cross-examination by the Ld. Additional PP for state this witness stated to have taken the motorcycle to police chowki on 30.04.2016. The testimony of PW4 is not consistent and her stance changed on every stage on her deposition and she made self contradictory statements in her deposition. Be that the case maybe, her testimony did to support the case of the prosecution in any manner rather it is contradictory to the version FIR no. 239/16 State v. Ajay Shrawan and others Page no. 31 of 42 of the prosecution and disproves the recovery of motorcycle on the relevant date and time and also from the alleged place i.e. near the wall of MCD School, Tigri.
57. As far as testimony of PW12 Naresh is concerned, his testimony is based upon the information given by his sister PW4 Kavita as he was away when his bike was allegedly borrowed by accused Vishal. During his cross examination, this witness admitted not to have taken any steps to inquire why Vishal has not returned back the motorcycle. Further, statement of PW4 is contradictory to his statement as she claimed the motorcycle was returned back on morning of 30.04.2016 whereas PW12 has not stated so. Moreover, his statement u/s 161 Cr.P.C. was recorded by the police on 07.07.2016 i.e. almost after 2 months of the date of incident and no explanation for recording the statement of this witness after unreasonable delay has come forward by the prosecution which has to be viewed with caution. Admittedly, PW12 had the only conveyance in his house as the motorcycle in question and it is stated by PW4 that PW12 takes it to his work place but PW12 did not bother to inquire about his motorcycle between 25.04.2016 till 30.04.2016 and especially when the police as per PW4 visited her house on 27/28.04.2016 inquiring about the motorcycle. PW4 did not take any steps to lodge a complaint with the police with respect to his missing motorcycle during the aforesaid period. Hence, in view of the observations made above and the conduct of PW12, his testimony does not inspire confidence of the Court and cannot be relied upon.
FIR no. 239/16 State v. Ajay Shrawan and others Page no. 32 of 42
58. In view of the evidence discussed above, the incriminating circumstance of recovery of motorcycle against accused Vishal or any other accused is surrounded by the clouds of doubts and cannot be said to be proved on record beyond reasonable doubt.
RECOVERY OF MOBILE OF DECEASED AT THE INSTANCE OF ACCUSED AJAY SHRAWAN :-
59. As per the case of prosecution the mobile phone of deceased was recovered from the house of accused Ajay Shrawan at his instance and same was seized vide seizure memo Ex.PW32/M on 30.04.2016. At the outset, it is pertinent to note that no public witness has signed the aforesaid document and it is admitted by PW32 HC Ramesh and PW34 Insp. Vikas Rana in their cross-examination that no public witness was made to join the recovery proceedings at the time of recovery of mobile phone. The family members of accused Ajay who were available at his house at the time of recovery proceedings were also not made to sign the seizure memo as witness nor any neighbour was made to join the recovery proceedings. Meaning thereby no sincere efforts were made by the police witnesses to join the independent public witnesses and in absence of any independent public witness a dent is created in the story of prosecution as far as recovery of mobile phone is concerned.
60. Further, PW32 HC Ramesh stated that the mobile phone was recovered from under the bed on the floor whereas PW34 stated that the mobile phone was beneath the mattress which is a FIR no. 239/16 State v. Ajay Shrawan and others Page no. 33 of 42 contradictory statement with respect to the place of recovery of mobile phone. Above all, PW32 during his cross-examination could not even tell when he visited the house of accused Ajay Shrawan and he also could not tell whether any signatures of any public persons were obtained on recovery memo of mobile phone. He could not even tell on which floor the accused Ajay Shrawan was arrested and he further stated that no documents at the house of accused Ajay Shrawan were prepared. This statement actually goes to the root of the case of the prosecution as the seizure memo of the mobile phone is claimed to have been prepared at the spot which PW32 has denied during his cross-examination. The aforesaid discrepancy does not rule out the possibility of planting of case property and also creates doubt in joining of PW32 at the time of recovery of mobile.
61. Above all, the original bill of the mobile phone seized in this case belonging to the deceased Ramesh has not been produced on record nor its seizure memo vide which the photocopy of the bill was seized has been proved on record in accordance with law as the only witness Lal Chand to the said seizure memo has not been examined by the prosecution on account of his death during the trial. Moreover, the owner of shop/vendor from whom the mobile in question was purchased in the name of Ramesh was not examined by IO to ascertain its genuineness. Therefore, the factum of the ownership of the phone seized in the name of deceased Ramesh could not be proved beyond reasonable doubt. It is also hard to believe that an assailant would keep the mobile of the victim with him without it being used and letting the investigating agency to recover the same from his house as no FIR no. 239/16 State v. Ajay Shrawan and others Page no. 34 of 42 prudent person would do so out of the fear of being caught.
62. In view of material discrepancies as discussed above, coupled with the fact that no independent witness was made to join the recovery proceedings despite their availability, the recovery of mobile phone cannot be said to be established beyond reasonable doubt.
RECOVERY OF BANNER USED TO STRANGULATE THE DECEASED AT THE INSTANCE OF ACCUSED RAHUL @ PARUL:-
63. As per the case of prosecution the banner used in crime was recovered in front of Farm No. B-14, near dry water drain on the road going towards Chhatarpur Bhati at the instance of accused Rahul @ Parul and same was seized vide seizure memo Ex.PW32/Q on 30.04.2016. At the outset, it is pertinent to note that no public witness has signed the aforesaid document and it is admitted by PW32 HC Ramesh and PW34 Insp. Vikas Rana in their cross-examination that no public witness was made to join the recovery proceedings at the time of recovery of banner. During cross-examination of PW32 a specific query was put to him as to whether IO has asked the guard of the farm house to join the proceedings but he feigned ignorance and admittedly no statement of either of the guard of two farm houses near which the banner is alleged to have been recovered was recorded. Similarly, PW34 in his cross-examination admitted that he did not inform the guards at the farm house that they have come there with the accused. Meaning thereby no sincere efforts were made by the police witnesses to join the independent public witnesses and in absence FIR no. 239/16 State v. Ajay Shrawan and others Page no. 35 of 42 of any independent public witness a dent is created in the story of prosecution as far as recovery of banner is concerned. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) wherein it has been held that :
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
64. In view of the discussion above and the settled position of law, the recovery of the banner Ex. P2 as an important circumstance could not be established beyond reasonable doubt.
SIM CARDS USED BY ACCUSED VISHAL AND RAHUL @ PARUL
65. Prosecution has examined two witnesses to show that the mobile number 8285666267 was being used by the accused Vishal at the time of incident, one is PW5 Sharif Ansari and the other prosecution witness is PW14 Praveen Kumar. PW5 in his examination-in-chief has denied to have knowledge about the mobile number used by accused Vishal and he also feigned ignorance qua the mobile number 8285666267. During his cross- FIR no. 239/16 State v. Ajay Shrawan and others Page no. 36 of 42 examination, PW5 stated that he do not remember the number from which Vishal used to call him and he also admitted that he cannot tell who is the user or owner of mobile number 8285666267. This witness nowhere in his testimony has supported the case of the prosecution for establishing the usage of the aforesaid mobile number by the accused Vishal.
66. PW14 Praveen Kumar claimed himself to be the classmate of accused Vishal in 10th standard and in his examination in chief stated that he used to talk with the accused Vishal on his mobile number 8285666267. He further deposed that he used mobile number 8285228143 issued in the name of his brother Jai Prakash and exhibited the CAF form as Ex. PW14/A. Admittedly, Jai Prakash has not been examined by the prosecution in this case. During cross examination of PW14, he stated that he cannot say whether accused Vishal was using the above number when he was in class X in the year 2013 and even he did not remember whether he had talked with accused Vishal at this number. He further categorically admitted that he had no contact with accused Vishal after Class Xth whereas the incident in question happened in the year 2016 that does not prove that the aforesaid number was under the usage of accused Vishal at the time of happening of the incident. PW14 further admitted during his cross examination that it was disclosed to him by the police officials that mobile number 8285666267 belongs to accused Vishal and as such he had made the statement according to them. The aforesaid statement of PW14 takes away the case of the prosecution completely and goes to the root of its case shaking the veracity of his testimony, thus cannot be relied upon to consider as FIR no. 239/16 State v. Ajay Shrawan and others Page no. 37 of 42 proof of usage of mobile no. 8285666267 by accused Vishal.
67. PW33, Shishir Malhotra, Nodal Officer from Aircel Ltd. proved on record the customer application form pertaining to mobile number 8285666267. As per the document Ex.PW33/3 and Ex.PW33/H the aforesaid number was issued in the name of Manoj Kumar Poddar but Manoj Kumar Poddar was not examined by the prosecution who could have been material witness to show that by whom the aforesaid number was being used.
68. In view of the evidence discussed above, it cannot be safely concluded that the mobile number 8285666267 was being used by the accused Vishal at the relevant point of time. Accordingly, this circumstance relied by the prosecution could not be established on record beyond reasonable doubt.
69. Now coming to the usage of mobile number 7529943636 by the accused Rahul @ Parul as claimed by the prosecution. PW6 Jitender Kumar was examined to establish the usage of mobile number 7529943636 by the accused Rahul @ Parul. In his examination-in-chief, this witness denied to have knowledge about the usage of aforesaid mobile number. This witness even denied to identify the signatures of his father-in-law Charan Singh on the document Mark PW6/B and he also failed to identify his photographs on the Aadhar Card Mark PW6/C. During his cross-examination by Ld. Additional PP for state, he categorically denied to have stated to the police in his previous statement that accused Rahul was using the mobile number 7529943636. He further denied to have stated to the police that the FIR no. 239/16 State v. Ajay Shrawan and others Page no. 38 of 42 aforesaid number was obtained by his father-in-law and it was given by him to his grandson, accused Rahul. During cross- examination by the accused, PW5 admitted that he has never talked with accused Rahul on the mobile number 7529943636 and even stated that he had never seen accused Rahul using this number. He also denied to have knowledge as to whom the aforesaid mobile belonged and who uses the same. In view of the aforesaid discussion, it can be seen that this witness did not support the case of the prosecution in any manner.
70. The only testimony of PW6 was relied by the prosecution to prove this circumstance, however, the testimony of PW6 is found to be of no help to the case of prosecution, therefore, the usage of mobile number 7529943636 by the accused Rahul @ Parul could also not be established on record beyond reasonable doubt by any cogent evidence.
LOCATION OF THE SIM CARDS / MOBILE PHONES USED BY THE ACCUSED PERSONS TO SHOW THEIR INVOLVEMENT IN CRIMINAL CONSPIRACY FOR COMMISSION OF OFFENCE OF MURDER
71. It has already been held in the preceding paragraphs that the prosecution has miserably failed to establish the phone numbers 8285666267 and 7529943636 being used by accused Vishal and Rahul @ Parul respectively by leading any cogent evidence on record. So, any conversation between the aforesaid numbers and the numbers belonging to the accused Ajay Shrawan as per the call detail records and the location shown as per the cell FIR no. 239/16 State v. Ajay Shrawan and others Page no. 39 of 42 IDs chart of the aforesaid numbers does not establish the offence of criminal conspiracy and the offence of murder of Ramesh in pursuance to such criminal conspiracy. Therefore, this circumstance also failed to get established beyond reasonable doubt.
DEATH OF THE VICTIM WAS HOMICIDAL IN NATURE:
72. PW8 Dr. Antara Debbarma conducted the post mortem of deceased Ramesh. She exhibited and proved on record the detailed post mortem report as Ex. PW8/A. As per the report, the time of death is given as 2-3 days that corresponds with the time when the victim was murdered. As per the post mortem report, the opinion regarding cause of death has been given as axphyxia as a result of ligature strangulation of neck. Hence, the death of deceased Ramesh is proved to be a homicidal death.
FORENSIC EVIDENCE
73. PW8, PW35 and PW37 were the forensic expert witnesses examined by the prosecution. The reports prepared by the aforesaid witnesses did not support the case of the prosecution in any manner. No scientific evidence adduced on record connects the role of accused persons in respect to the commission of murder of the victim Ramesh.
74. It is settled position of law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of FIR no. 239/16 State v. Ajay Shrawan and others Page no. 40 of 42 the accused and the other to his innocence, the view which is favourable to the accused should be adopted. In the instant case, the important circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. The inconsistencies occurring in the testimony of prosecution witnesses creates strong doubt in the case of the prosecution. The chain of circumstances has been snapped and that rule out the hypothesis of guilt of the accused persons in the given circumstances and the evidence led on record. The necessary principles of law as enumerated in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, have not been complied with.
75. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
76. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypotheses of guilt of accused persons can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of FIR no. 239/16 State v. Ajay Shrawan and others Page no. 41 of 42 circumstantial evidence which could only lead to one inference i.e. the guilt of accused persons.
77. In view of the discussion above, the accused persons are entitled to be given benefit of doubt. Accordingly, accused persons namely Ajay Shrawan, Vishal and Rahul @ Parul are hereby acquitted of all the charges levelled against them in the present case.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2023.08.28 17:14:23 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 28.08.2023 ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS Containing 42 pages all signed by the presiding officer.
VISHAL Digitally signed by VISHAL PAHUJA PAHUJA 17:14:48 +0530 Date: 2023.08.28 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR no. 239/16 State v. Ajay Shrawan and others Page no. 42 of 42