Delhi District Court
Cases Needs To Be Kept In Mind. In The Case ... vs The on 7 September, 2009
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IN THE COURT OF SH. GIRISH KATHPALIA
ADDL. SESSIONS JUDGE, SPECIAL JUDGE(NDPS)
DISTRICT NORTH, DELHI
SC NO. 94/06
STATE
versus
PRAMOD KUMAR CHAUDHARY
@ PAMMI
S/o Shri Badri Prasad,
R/o B-10, Gidwani Road,
Adarsh Nagar,
Delhi.
FIR No. :323/06
Offence Under Section :302/34 IPC
Police Station : Mukherjee Nagar
Date of institution:23.11.06
Date of taking up the matter for the first time:19.05.09
Date of conclusion of arguments:22.08.09
Date of judgment:07.09.09
Counsel for State: Sh.Rakesh Kumar, Additional Public Prosecutor
Counsel for Accused: Sh. P.K. Dham, Advocate
SC No. 94/06 Page 1 of 63 pages
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JUDGMENT
1. Prosecution case is that on 22.05.06 on receipt of DD No. 13A at police station Mukherji Nagar, SI Bakhshish Singh alongwith the then SHO Inspector Surender Singh and staff reached the spot informed, which was the nullah near cremation ground, Sant Nirankari School, Mukherji Nagar and found dead body of a man aged about 22-25 years on the corner of the road towards the nullah. The said area being within the jurisdiction of PS Timar Pur, ASI Virender Singh of that police station reached and was handed over the spot.
2. Police of PS Timar Pur conducted proceedings under Section 174 CrPC and got the dead body photographed. Identity of the deceased was found to be Pramod Kumar Sharma, resident of New Chandrawal. Later, under the directions of senior police officers, the inquest papers were sent back to PS Mukherji Nagar. Postmortem report of the SC No. 94/06 Page 2 of 63 pages 3 deceased detailed nine injuries and opined the cause of death as antemortem smorthering.
3. On 04.07.06 Sh. Sunil Sharma, brother of the deceased visited PS Mukherji Nagar and gave statement on the basis whereof FIR NO. 323/06 was registered on 08.07.06. In his complaint, the first informant stated that his deceased brother had been working with Pramod Chaudhary @ Pammi, resident of Adarsh Nagar, holding mobile phone number 9811312311; on 21.05.06 also, as usual the deceased went to Pammi for his work and at 9:30pm called up from mobile phone of Pammi to his own mobile phone which he had left home with his wife Neeru; the deceased told his wife over telephone that he was with his employer Pramod Chaudhary and would reach home shortly; when till 11:45pm the deceased did not reach home, Smt. Neeru called up from mobile phone of the deceased to the mobile phone of Pammi but the latter did not take the phone; next morning at 5:30am again Smt. SC No. 94/06 Page 3 of 63 pages 4 Neeru called up on mobile phone of Pammi, who told her that he was going to Aligarh and that he had left the deceased at Pratap Bagh after they had spoken over phone; on 22.05.06 at about 10:30am two constables informed about discovery of dead body of the deceased and asked him to identify; alongwith his paternal uncles Ashok Sharma and Mahesh Sharma he went to PS Timar Pur and identified the dead body of deceased subsequent to post mortem.
4. After registration of FIR, investigation was handed over to Inspector Rakesh Tyagi, who prepared the site plan on pointing out of SI Bakshish Singh and recorded statements of witnesses. On the basis of investigations, accused Pramod Chaudhary @ Pammi was arrested. In his statement made to the investigating officer (IO) the accused allegedly disclosed that he alongwith the deceased were engaged in making money by illegal tampering of electricity meters and the deceased had been insisting to SC No. 94/06 Page 4 of 63 pages 5 settle his accounts; on 21.05.06, the accused with the help of his supervisor Shiv Singh called the deceased, who came on his scooter to Rana Pratap Bagh; the three of them, namely the accused, the deceased and Shiv Singh decided to consume alcohol, so scooter of the deceased was left there itself and they proceeded to Rani Bagh in Maruti Zen car no. DL-8CD-6766 and started consuming liquor while driving around; in a planned manner when they reached near Mukherji Nagar baandh, in a deserted area the accused caught hands of the deceased while Shiv Singh pressed face of the deceased on rear seat of the car due to which the deceased died of suffocation; accused and his accomplice threw away dead body of the deceased towards nullah near Nirankari School and threw away his shoes in the bushes near Nirankari Ground.
5. Accused Pramod got recovered shoes of the deceased from bushes near nullah in Nirankari Colony and car no. DL-8CD-6766 from his residence during investigation.
SC No. 94/06 Page 5 of 63 pages 6 Both the mobile phones used, as described above, were seized in addition to the two wheeler scooter of the deceased. But co-accused Shiv Singh could not be traced out.
6. Further investigation was transferred to Inspector Mohan Singh, who obtained non bailable warrants against co-accused Shiv Singh, got prepared scaled site plan, obtained mobile phone call records and got conducted TIP proceedings pertaining to shoes of the deceased. After getting the co-accused Shiv Singh declared a proclaimed offender, the second IO filed chargesheet with co-accused Shiv Singh kept in column no.2.
7. After committal of the case, my learned predecessor framed charge for offence under Section 302/201/34 IPC to which the accused pleaded not guilty and claimed trial.
8. In support of their case, prosecution examined 30 witnesses whereafter the entire incriminating evidence was put to the accused in his statement under Section 313 SC No. 94/06 Page 6 of 63 pages 7 CrPC. Accused stated that he has been falsely implicated in order to solve a blind murder case of the deceased who was involved in two criminal cases and might have had enmity with those persons; accused opted not to lead any defence evidence. I have heard Sh. Rakesh Kumar, Additional Public Prosecutor for State and Sh. P.K. Dham, counsel for accused, who took me through records.
9. PW1 is the complainant Sh. Sunil Sharma, who deposed that on 21.05.06 about mid night he received a phone call on his landline from wife of the deceased that the latter had not reached home and he advised her to wait. At about 6:00am on 22.05.06 PW1 again got a phone call from wife of the deceased, informing that the latter had not reached home and at 6:30am wife of the deceased reached their house. At 10:30am two police officials from PS Timar Pur came with the driving licence of the deceased and informed that the dead body had been found near Mukherji Nagar baandh. Thereafter, PW1 alongwith his SC No. 94/06 Page 7 of 63 pages 8 uncles Ashok and Mahesh went to the spot and identified the dead body. PW1 proved his statement Ex. PW1/A dated 04.07.06 and seizure memo Ex. PW1/B dated 10.07.06 of mobile phone of the deceased. PW1 further stated that the deceased used to work with the accused, who owed money to the former but was not paying the same despite demands. In presence of PW1, scooter of the deceased was taken into possession by the IO from PS Timar Pur on 26.07.06. PW1 explained that the said scooter had been purchased by the deceased from one Ram Dulara Singh but the scooter could not be got transferred in the name of the deceased. He proved the seizure memo of photocopy of RC of the scooter as Ex. PW1/C. PW1 also stated having identified shoes of the deceased during test identification parade (TIP) conducted before a magistrate and identified the shoes of the deceased during trial as Ex. P1 & Ex. P2.
10. In his cross examination, PW1 stated that the deceased had performed love marriage with Smt. Neeru SC No. 94/06 Page 8 of 63 pages 9 and after their marriage, they were living separate from family of the deceased. PW1 was confronted with his statement Ex. PW1/A where the allegation of money dispute between the accused and the deceased is not recorded; in cross examination he specifically stated having no knowledge about the amount involved in the alleged dispute. PW1 stated that between 22.05.06 and 08.07.06 he had been contacting the police about progress of the case but till 08.07.06 he did not tell anything about the accused to the police. PW1 also stated that prior to 08.07.06, police had called the accused once or twice in his presence in the police station but he did not raise any suspicion against the accused at that time.
11. PW2 is Smt. Neeru Lata, wife of the deceased, who did not support prosecution case as regards involvement of the accused in this murder. PW2 stated that after her love marriage with the deceased, they started living separately in Burari on rent and at that time the deceased was serving SC No. 94/06 Page 9 of 63 pages 10 as electrician with the accused. After some time, the deceased left job of the accused and started his own work. But since his business could not flourish, the deceased joined back service of the accused in his shop at Sant Nagar. As per PW2, on 21.05.06 the deceased left house at 10:30am on scooter no. DL-1SJ-8694 for going to the office of the accused at Rana Pratap Bagh; at t 5:30pm the deceased returned home but again left on his scooter after leaving his mobile phone with PW2; the said mobile phone was number 9313094005, got purchased by the accused for the deceased; at 7:00pm, the deceased called her up on the said mobile phone and told her to get ready for a walk as he would reach shortly; at about 9:30pm, PW2 again called up on the mobile phone of the accused, which was picked by the deceased, who stated that he would reach shortly; after some time when the deceased did not return, PW2 again dialed the same mobile phone but none picked; at 2:00am PW2 called up her mother to inform that the deceased had SC No. 94/06 Page 10 of 63 pages 11 not reached home and thereafter mother of PW2 took her to their house at 3:00am. On 22.05.06 at about 5:30am PW2 again called up the accused on his mobile to inquire whereabouts of the deceased; at that time the accused told PW2 that he had dropped the deceased on previous night at Rana Pratap Bagh and thereafter he did not know about the deceased. PW2 specifically stated that she did not know as to who killed her husband.
12. On being declared hostile, in her cross examination by learned prosecutor, PW2 denied having told the police that at 9:30pm the deceased had told her over phone that he was sitting with the accused. She also denied having told the police that accused had told her that he was in Faridabad. PW2 further denied having told the police that the deceased had informed her about the money dispute between him and the accused. PW2 also denied having told the police that he suspected the accused as murderer of her husband.
SC No. 94/06 Page 11 of 63 pages 12
13. In her cross examination by the defence counsel, PW2 admitted that her brother in law Sunil Sharma was living separately from them and had come to their house only once on birthday of her daughter. She further stated that the deceased had told her that the accused had dropped him at Vijay Nagar Main Road from where he was returning home on his scooter. On being shown shoes Ex. P1 and Ex. P2, PW2 stated that these shoes did not belong to her husband, as he used to wear shoes without laces.
14. PW3 Ct. Hitender Singh joined investigation with the IO. As per PW3, on 18.07.06 the accused was taken out of lock up by the IO and all of them went to Sonia Vihar in search of co accused Shiv Singh and thereafter, accused Pramod Chaudhary led the police party to Shah Alam baandh Nirankari Ground, from bushes whereof accused got recovered a pair of brown shoes. As per PW3 there were patawa (insoles) in the shoes which bore mark "S.KUMAR" and the shoes were converted into a sealed SC No. 94/06 Page 12 of 63 pages 13 pullanda, seized vide seizure memo Ex. PW3/A. Thereafter, accused led the police party to his house and from almirah lying in a room, accused got recovered one mobile phone which was seized vide memo Ex. PW3/B. One maruti car parked outside house of the accused also was taken into possession vide memo Ex. PW3/C. PW3 identified the shoes Ex. P1 and Ex. P2, car Ex. P3 and mobile phone Ex. P4. In his cross examination PW3 stated that the shoes were seized at about 2:00-3:00pm, while mobile phone was seized between 3:00-4:00pm. He could not tell as to whether they left police station that day at 7:00am, 8:00am or 9:00am on the day of investigation. As per PW3 no public witness from Timar Pur Market or Kingsway Camp Market was joined in the investigation. He also could not tell the time when they returned to police station but stated that it was evening.
15. PW4 Ct. Sanjay Kumar Tyagi stated that on 22.05.06 he accompanied ASI Virender Singh to the spot where dead SC No. 94/06 Page 13 of 63 pages 14 body was found. On enquiry name of the deceased was disclosed to be Pramod Sharma. After post mortem the doctor handed over to PW4 one wooden box, one polythene bag containing clothes of the deceased, one envelop and one blood stained cloth piece sealed with the seal of AKJ Subji Mandi Mortuary which were seized by the IO vide memo Ex. PW4/A. PW4 identified the clothes in court as Ex.P5.
16. PW5 is owner of the maruti car used in the offence and a neighbour of the accused, who also did not support case of the prosecution. As per PW5, his car was taken by the accused in second week of July 2006 for use and he obtained back the car on superdari vide superdaginama Ex. PW5/A. He proved on record photocopy of RC of his car as Ex.PW5/C and its seizure memo as Ex. PW5/B. In his cross examination on being declared hostile, PW5 denied having told the police that the deceased used to come to the shop of the accused on his green scooter number DL-1SJ-8694 SC No. 94/06 Page 14 of 63 pages 15 and that one supervisor Shiv Singh also used to be present at the shop of the accused and that on 21.05.06 at request of the accused, he had given his car in which the accused and Shiv Singh went alongwith the deceased after leaving scooter of the deceased at the shop of accused.
17. PW6 Ram Kumar Sharma is father of the deceased, who did not completely support case of the prosecution. As per PW6, on 21.05.06 at about 9:00am the deceased met him outside his house on a two wheeler scooter and told that he was going for some work. At about 9:00pm, wife of the deceased called up at the residence of PW6 to ask if the deceased was present there, to which PW6 replied in negative and suggested her to call up employer of the deceased. On 22.05.06, PW6 received a telephone call in his office, in response whereto he reached home and came to know about death of his son. At Subzi Mandi Mortuary PW6 identified dead body of the deceased and thereafter submitted application Ex.PW6/A suspecting the accused as SC No. 94/06 Page 15 of 63 pages 16 murderer. In his cross examination on being declared hostile, PW6 admitted having disclosed to the police phone number of the deceased as 9313094005 and phone number of the accused as 9311312311. He admitted Ex. PW6/B as his statement. In his cross examination, PW6 was confronted with his complaint Ex. PW6/A where name of the accused as suspected killer was not mentioned. PW6 admitted having not told the police that on 21.05.06 he had met the deceased at 9:00am. PW6 admitted having made no statement to police in the month of August 2006 or September 2006. PW6 was also confronted with his statement Ex. PW6/B which did not mention that he suspected the accused as killer of his son.
18. PW7 Sh. Jaswinder Singh working in a factory at Jahangir Puri turned completely hostile and did not support case of the prosecution. In his cross examination by the prosecutor PW7 stated that police did not record his SC No. 94/06 Page 16 of 63 pages 17 statement, though he admitted that his employer is brother of the accused.
19. PW8 Sh. Ram Dulara Singh stated that he is the registered owner of scooter no. DL-1SJ-8694 which had been sold to the deceased who was his neighbour, but the registration could not be transferred.
20. PW9 Sh. Ashok Sharma is an uncle of the deceased, who identified dead body of the deceased and received the dead body vide statements Ex. PW9/A&B.
21. PW10 Sh. Mahesh Sharma also is an uncle of the deceased who identified the dead body and received the dead body vide statements Ex. PW10/A&B.
22. PW11 Ct. Kamal Singh stated that on 10.09.06 he took a wooden box and two envelops to Hyderabad for depositing the same but officials of CFSL refused to receive, so he came back on 18.09.06 and deposited the same back in malkhana.
SC No. 94/06 Page 17 of 63 pages 18
23. PW12 Ct. Prem stated that on 20.09.06 he took one wooden box and an envelop and deposited the same with FSL Rohini and delivered the receipt to MHC(m).
24. PW13 is Dr. Akash, who had conducted post mortem of the deceased on 22.05.06 at 2:45pm. PW13 described nine external injuries found on the dead body and gave his opinion that cause of death was asphyxia consequent upon antemortem smothering and time since death was around 12-18 hours. He proved his report Ex. PW13/A. In his cross examination, PW13 admitted that humidity, temperature of atmosphere and sunlight are factors to be considered in order to calculate the time since death, though time of death cannot be exactly determined. Rectal and external auditory canal temperature are also to be seen to determine time since death but facilities for the same were not available to him. PW13 stated that possibility cannot be ruled out that the time since death was 8-12 hours.
SC No. 94/06 Page 18 of 63 pages 19
25. PW14 SI Manohar Lal is draftsman, who had prepared scaled site plan Ex. PW14/A of the spot.
26. PW15 SI Bakshish Singh was the first investigating officer, who on receipt of DD No.13A at 9:20am on 22.05.06 reached behind Sant Nirankari School at nullah near the cremation ground and found dead body of the deceased. As per PW15, since the spot where dead body was lying fell within the jurisdiction of PS Timar Pur, ASI Virender Singh also had reached. On 08.07.06 PW15 was informed about registration of the present case and thereafter at his instance site plan was prepared. PW15 proved a copy of DD No. 13A and a copy of DD NO. 44B as Ex. PW15/A&B respectively.
27. PW16 HC Rajeev was posted as duty officer at PS Mukherji Nagar at the relevant time and registered the FIR Ex. PW16/A .
28. PW17 Sh. Jyotish, Assistant Nodal Officer of Hutch Vodafone proved allotment documents and call details SC No. 94/06 Page 19 of 63 pages 20 pertaining to mobile phone number 9811312311 as Ex. PW17/A&B respectively and stated that the said phone had been allotted to one Pammi (the accused).
29. PW18 Sh. Sanjeev, Manager, Reliance Communications brought only photocopies and stated that original call detail records have been destroyed vide instructions Ex. PW18/C.
30. PW19, who was posted as Head Constable at the relevant time in PS Mukherjee Nagar proved DD No. 13A dated 22.05.06 as Ex. PW15/A.
31. PW20 Ct. Amit stated that on 10.07.06 he was posted as constable at PS Mukherjee Nagar and on that day one Sunil Kumar handed over to IO of the case one reliance phone which was seized vide memo Ex. PW1/B. PW20 proved on record seizure memo of the mobile phone as Ex. PW20/A, disclosure statement of the accused as Ex. PW20/B, arrest memo of the accused as Ex. PW20/D and personal search memo of the accused as Ex. PW20/E. In SC No. 94/06 Page 20 of 63 pages 21 his cross examination, PW 20 stated that on 16.07.06 they left police station in search of the accused at about 5:00pm and reached house of the accused within 15 minutes; disclosure statement of the accused was recorded at about 7:30pm, whereafter at 8:30pm they reached Mukherjee Nagar baandh and returned to police station at 8:40pm. He admitted that in his presence no recovery was made at the instance of accused.
32. PW21 HC Rishi Pal stated that he had collected the case property on 13.07.06 from PS Timar Pur and deposited the same in malkhana of PS Mukherjee Nagar.
33. PW22 Ct. Pramod of PS Mukherjee Nagar stated that he went to PS Timar Pur on 26.07.06 and found scooter no. DL-1SJ-8694 parked there and was told by MHC(m) that the said scooter had not been deposited in the malkhana and if required, it could be taken away by the IO, so PW22 took the scooter to PS Mukherjee and IO seized the same vide memo Ex. PW22/A. SC No. 94/06 Page 21 of 63 pages 22
34. PW23 Inspector Surender stated that he was SHO Mukherjee Nagar and had assigned the enquiry of DD No. 13A dated 22.05.06 as regards discovery of dead body to SI Bakshish Singh and at about 9:22am vide DD No. 14A Ex. PW23/A he left for the spot. Vide DD No. 23A Ex. PW23/B he returned to the police station. After inquest proceedings, the investigation was again transferred to PS Mukherjee Nagar under the orders of DCP, North. PW23 recorded statement Ex.PW1/A of Sh. Sunil Sharma on 04.07.06. On 08.07.06, PW23 made endorsement Ex.PW23/C on the rukka and handed over the investigation to Inspector Rakesh Tyagi. In cross examination PW23 stated that he did not remember the date when investigation was transferred to PS Mukherjee Nagar under the instructions of DCP, North, though he had received the instructions in June 2006. PW23 stated that Ex.PW6/A is the complaint of father of the deceased that was attached with the inquest papers received by him. Although he had SC No. 94/06 Page 22 of 63 pages 23 seen the postmortem report and had recorded statement of Sh. Sunil Sharma on 04.07.06, he did not direct registration of case till 08.07.06. PW23 stated that he did not examine wife of the deceased since he wanted to first examine father of the deceased who was not traceable. Till 04.07.06, there was no complaint by relatives of the deceased against anyone, though relatives of the deceased had been coming to him before 04.07.06 and complaining regarding the employer of the deceased verbally. As per PW23 he did not write down the said complaints since postmortem report had not been received and even after receipt of postmortem report he did not record statement of father, brother or wife of the deceased till 04.07.06. PW23 admitted that he had described clothes of the deceased, but he did not mention in his report that the dead body was bare foot.
35. PW24 HC Suresh Kumar was working as MHC(M) at PS Mukherjee Nagar at the relevant time. He proved on record as Ex.PW24/A (colly) to Ex.PW24/C1, the different SC No. 94/06 Page 23 of 63 pages 24 entries of deposit and handing over of case property from malkhana and copies of road certificate.
36. PW25 ASI Virender Singh stated that on 22.05.06 he was posted at PS Timarpur and on receipt of DD No.20B he reached alongwith Ct. Sanjay Tyagi near Sant Nirankari School at Mukherjee Nagar nullah and found a dead body. PW25 got the spot photographed and took search of clothings of the deceased, from which voter identity card and driving license of the deceased were recovered disclosing name and address of the deceased. He conveyed the information to relatives of the deceased and filled up inquest papers Ex.PW25/A. After getting the post mortem done, PW25 handed over dead body to family members of the deceased and seized the box containing viscera and parcel containing clothes vide memo Ex. PW4/A. PW25 proved DD No. 20B as Ex. PW25/B, seizure memo of articles of the deceased as Ex. PW25/C, dead body identification statements and dead body receipt as SC No. 94/06 Page 24 of 63 pages 25 Ex. PW25/D-F and brief facts as Ex. PW25/G. In his cross examination PW25 stated that he had recorded statements of Mahesh and Ashok but they did not suspect anyone. He admitted that inquest papers Ex. PW25/A do not mention that the dead body was bare foot. PW25 did not know as to whether scooter of the deceased had been deposited in the malkhana of PS Timar Pur or not.
37. PW26 proved photographs of the spot of recovery of dead body as Ex. PW26/1-3 and its negatives Ex. PW26/1A- 3A.
38. PW27 is a learned Metropolitan Magistrate, who proved the application for TIP of shoes of the deceased as Ex. PW27/A and stated that on 20.09.06 the case property was produced before him in cover sealed with the seal of RK and other items were in cover sealed with the seal of NK. IO and witnesses of the case were sent out of the chamber and PW Sunil Kumar Sharma was called inside after fixing four pair of shoes identical to the case property SC No. 94/06 Page 25 of 63 pages 26 in sequence A to E and case property was mixed up. As per PW27, case property was correctly identified by Sunil Kumar Sharma. Learned magistrate proved TIP proceedings as Ex. PW27/B, result thereof as Ex. PW27/C and his certificate Ex. PW27/D. In his cross examination, PW27 admitted that brand name of the shoes was not recorded in TIP proceedings and he did not note in the proceedings that insole of case property shoes bore mark "M S Shoes" and he could not say if the remaining shoes bore that mark on insoles or not.
39. PW28 is Inspector Mohan Singh who had been entrusted with investigation of this case on 01.08.06. On 19.09.06 he moved application, on the basis of which TIP proceedings were conducted by the learned magistrate. He also got conducted proceedings under Section 82/83 CrPC against co accused Shiv Singh and got him declared proclaimed offender. After completing the investigation he filed chargesheet. In his cross examination, PW28 admitted SC No. 94/06 Page 26 of 63 pages 27 that four pair of shoes produced by him for mixing with the case property shoes did not bear the mark "S Kumar Shoes" on their insoles, though as per seizure memo of the case property shoes, such a mark was printed on the same. PW28 admitted that the deceased had been living with his wife separately from his brother Sunil. PW28 also admitted that case property shoes were not got identified from wife of the deceased in the TIP proceedings. As per PW28, before applying for TIP he had checked the police file but did not find any statement of Sunil to the effect that he could identify the shoes of the deceased. During investigation, as per PW28 he came to know that the deceased was involved in two criminal cases FIRs Ex. PW28/DA&DB.
40. PW29 Inspector Rakesh Kumar also had partly investigated this case with effect from 08.07.06. PW29 recorded statements of witnesses on 09.07.06 and during investigation, suspicion was raised against the accused, SC No. 94/06 Page 27 of 63 pages 28 whose house was visited by police on 11.07.06 to interrogate him but he could not be located. On 13.07.06, under his directions HC Rishi Pal brought the relevant papers and case property from PS Timarpur. On 16.07.06 accused was joined in the investigation and was arrested and his police remand was obtained vide application Ex.PW29/A. On 18.07.06, accused got recovered a pair of shoes, Maruti car and mobile phone. PW29 also proved site plan prepared by him as Ex.PW29/B and FSL result as Ex.PW29/C. In his cross examination, PW29 stated that he did not interrogate any official of PS Timarpur as to who had discovered the scooter of the deceased and from where. He admitted that the car involved in the crime was not got examined from a forensic expert. PW29 admitted that on 16.07.06 he alongwith the deceased had passed from the road near the bushes from where the shoes had been recovered on 18.07.06. He admitted that on 16.07.06 when they went to Nirankari Colony, disclosure statement SC No. 94/06 Page 28 of 63 pages 29 of the accused had already been recorded. No family member of the deceased was joined before recovery of shoes. PW 29 stated that first the shoes were recovered, thereafter seizure memo was prepared and thereafter the shoes were sealed and further stated that he is not aware that first the case property is to be seized, then sealed and then seizure memo is to be prepared. As per PW29, on 18.07.06 the shoes were got recovered by the accused during 10.30am to 12.30pm and accused was produced before the Magistrate at about 02.00pm.
41. PW30 Sh. Praveen Sharma, brother of the deceased also did not completely support the prosecution. PW30 stated that he identified dead body of the deceased and received the same from mortuary. He stated that on 21.05.06 the deceased did not go to office in his presence and denied having told this to police. In cross examination, PW30 stated that after 22.05.06 he never met police and he never went to police station. PW30 admitted SC No. 94/06 Page 29 of 63 pages 30 that the deceased was involved in two criminal cases of PS Roop Nagar.
42. No other evidence was led by prosecution.
43. Entire incriminating evidence was put to the accused in his statement under Section 313 CrPC, who denied the same and stated that he has been falsely implicated and since the deceased was involved in two criminal cases, he might have had enmity with those persons. Accused opted not to lead any evidence in his defence.
44. During final arguments, learned Additional Public Prosecutor took me through the evidence on record and argued that in this case based on circumstantial evidence, prosecution has succeeded in establishing a complete chain of circumstances pointing towards guilt of the accused. It was argued that prosecution has successfully established motive to kill the deceased, as he had business dealings with the accused. It was argued that PW2 has established the last seen evidence, as per which till 9:30pm SC No. 94/06 Page 30 of 63 pages 31 the deceased was with the accused and received telephone call on mobile phone of the accused. PW1 has proved motive as well as recovery of shoes of the deceased at the instance of accused. It was argued that in TIP, PW1 brother of the deceased identified shoes of the deceased before a learned magistrate and the shoes were recovered at the instance of accused. It was argued that even scooter of the deceased was got recovered by the accused. Learned Additional Public Prosecutor took me through testimony of investigating officer PW29 as regards recoveries made in this case.
45. Per contra, learned defence counsel took me through law as regards appreciation of circumstantial evidence and the material on record in the backdrop of certain judicial precedents as described hereafter. It was argued that prosecution has failed to explain delay of 46 days in registration of FIR pertaining to this case. FIR registered at the complaint of PW1 makes no mention of any money SC No. 94/06 Page 31 of 63 pages 32 dispute between the accused and the deceased, which is being projected by the prosecution as motive. It was argued that there is no clear evidence of last seen involving the accused and the deceased. As regards identification of the shoes, it was argued that wife of the deceased examined as PW2 specifically denied the recovered shoes to be of the deceased and prosecution did not declare her hostile. As regards scooter of the deceased also, it was argued that the recovery of the same was not at the instance of accused and as stated by PW29 investigating officer, he did not interrogate any official of PS Timar Pur as to who had discovered the scooter and from where. It was argued that most of the witnesses examined by prosecution turned hostile and did not support case of the prosecution. Even in recovery proceedings, no public person was involved. Recovery of shoes also becomes doubtful in view of the fact that on 16.07.06 also the investigating officer PW29 passed across the same area alongwith the accused after his SC No. 94/06 Page 32 of 63 pages 33 disclosure statement but did not recover the shoes on the same day. Presence of PW3 at the time of alleged recovery of shoes was also challenged on the ground of discrepancy of timings. It was argued that the TIP proceedings of shoes were futile exercise for failure of the investigating officer to mix up the recovered shoes with similar articles and for non involvement of wife of the deceased in TIP proceedings. Learned defence counsel addressed at length with the help of approximate time of death of the deceased that 9:30pm, when as per PW2 the deceased was last heard present with the accused, cannot be treated as last seen evidence. Learned defence counsel also assailed the manner of seizure of the shoes. It was argued that as reflected from evidence on record the deceased himself was involved in criminal cases and prosecution failed to rule out his killing out of enmity by someone else. Learned defence counsel also argued that prosecution ought to have proved original bills of the mobile phone calls in SC No. 94/06 Page 33 of 63 pages 34 order to establish presence of the deceased with the accused.
46. At the outset, it being a case based on circumstantial evidence, law relating to appreciation of evidence in such cases needs to be kept in mind. In the case of RAJU vs THE STATE, BY INSPECTOR OF POLICE, reported as 2009 III AD (Cr) (SC) 122, Hon'ble Supreme Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh vs. State of Rajasthan AIR 1977 SC 1063; Eradu and Ors. vs. State of Hyderabad AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka AIR 1983 SC 446; State of U.P. vs. Sukhbasi and Ors. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee vs. State of M.P. AIR 1989 SC 1890.
SC No. 94/06 Page 34 of 63 pages 35 The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. vs. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of SC No. 94/06 Page 35 of 63 pages 36 evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence...."
9. In Padala Veera Reddy vs. State of A.P. And Ors. (AIR 1990 SC 79), it was laid down 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 conviction must be complete and incapable of explanation of any other SC No. 94/06 Page 36 of 63 pages 37 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.
10. In State of U.P. vs. Ashok Kumar Srivastava, (1992 Crl. LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal SC No. 94/06 Page 37 of 63 pages 38 accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted.
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13.In Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh (AIR 1952 SC 343), wherein it was observed thus:
"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 be in the first instance be fully established and all the facts so established should be SC No. 94/06 Page 38 of 63 pages 39 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 for 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."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda vs. State of Maharashta, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
SC No. 94/06 Page 39 of 63 pages 40 (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.
15. These aspects were highlighted in State of Rajasthan vs. Raja Ram (2003 (8) SCC 180), State SC No. 94/06 Page 40 of 63 pages 41 of Haryana vs. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao vs. State of A.P. (Criminal Appeal No. 185/2005 disposed of on 7.7.2008) and Manivel and Ors. vs. State of Tamil Nadu (Criminal Appeal No. 473 of 2001 disposed of on 8.8.2008)."
47. In the case of GOKARAJU VENKATANARASA RAJU vs STATE OF ANDHRA PRADESH 1994 CAR 1, Hon'ble Supreme Court struck a note of caution that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. It was held that court has to be watchful and avoid the danger of allowing the suspicion to take place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof; at times it can be a case of "may be true"
and not "must be true" and the same divides conjectures from sure conclusions.
48. In the case of VARKEY JOSEPH vs STATE OF KERALA, 1993 CAR 264 SC Hon'ble Supreme Court emphasized the SC No. 94/06 Page 41 of 63 pages 42 need to ensure that suspicion does not get substituted in the place of proof. It was observed that there is a long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond all reasonable doubt.
49. Falling back to the present case, the circumstances, which, as per prosecution, stand established against the accused persons are: motive as the deceased had been demanding settlement of accounts with the accused; last seen evidence in the form of telephonic conversation between the deceased and his wife; recovery of shoes of the deceased at the instance of accused; identification of shoes of the deceased by the complainant, brother of the deceased; recovery of car involved in the offence; and recovery of scooter of the deceased. What is to be seen is as to whether prosecution has been able to establish these circumstances against the accused persons cogently and firmly and whether the chain of evidence is so complete as SC No. 94/06 Page 42 of 63 pages 43 not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons and whether this chain shows that in all human probability, the act must have been done by the accused persons. What is to be seen is as to whether the prosecution has been able to cover the journey from "may be" through "could be" to "shall be" as reiterated by the Hon'ble Delhi High Court most recently in the case of SUNDER @ LALA vs STATE, 160 (2009) DLT 701 DB.
50. Motive in itself cannot be a solitary circumstance to reach conviction of an accused. In the present case, evidence adduced to establish even motive is not cogent enough. As described above, PW1, complainant defacto in his cross examination was confronted with his statement Ex. PW1/A in which there is no reference of any money dispute between the accused and the deceased. What to say of reference of money dispute, in statement Ex. PW1/A on the basis whereof FIR was registered, even suspicion SC No. 94/06 Page 43 of 63 pages 44 was not raised against the accused. Even in the earlier complaint Ex. PW6/A dated 23.05.06 father of the deceased did not make any reference to the alleged money dispute and even suspicion against the accused. Further, no accounting details were investigated by the police as regards the alleged motive.
51. In the case of RAM REDDY RAJESHKHANNA vs STATE OF ANDHRA PRADESH, 2006 III AD (SC) 425, Hon'ble Supreme Court held that no reliance could be placed on the witness of alleged motive, who was the solitary witness examined by police after two days. In contrast, in the present case, till registration of FIR about 46 days after the occurrence, no evidence of motive was collected by the investigating officer. As per PW1, from 22.05.06 till 08.07.06 he kept contacting the police about progress of this case but till 08.07.06 he did not allege any involvement against the accused. Not just this, as per PW1 in his presence accused also appeared in police station SC No. 94/06 Page 44 of 63 pages 45 more than once prior to 08.07.06 but PW1 did not raise any suspicion against the accused. Then, wife of the deceased examined as PW2 did not express any suspicion against the accused and specifically stated that she does not know as to who killed her husband.
52. It is for the first time that PW1 in his testimony recorded in court improved upon his earlier statement Ex. PW1/A and added the allegation of money dispute between the accused and the deceased. In the case of NAND LAL @ NANDU vs STATE, 2007 (2) JCC 1189, Hon'ble Delhi High Court dealt with the issue of reliability an improved statement of a prosecution witness. The witness Mukesh in that case stated during investigation that both he and Sunil were stabbed by Nandu while in his testimony before trial court Mukesh improved upon his statement and stated that only he was stabbed by Nandu and Sunil was stabbed by Billu. Hon'ble Delhi High Court observed thus:
"In Dhanna vs State of Madhya Pradesh, 1996, Crl.L.J 3516, the SC No. 94/06 Page 45 of 63 pages 46 Supreme Court accepted the view of the Trial Court to the effect that when a statement is made under Section 161 CrPC and that is improved upon at the trial, then a conviction for the offence of murder ought not to be made. Applying the law laid down by the Supreme Court , we are of the view that even if Mukesh stated the truth on oath it would be unsafe to convict Billu only on the basis of his statement in Court which was an improvement over what he had stated to the police during investigations.Therefore, whichever way one looks at the issue, it is not possible for us to identify on the basis of the evidence on record as to who caused the murder of Sunil."
53. In the cases of JAGNARAIN PRASAD vs THE STATE OF BIHAR, 1998 (2) CC CASES 45 SC and SWARAN SINGH vs STATE OF J&K, III (1998) CCR 139 SC also Hon'ble Supreme Court held it to be not safe to rely upon testimony SC No. 94/06 Page 46 of 63 pages 47 of a witness who improves upon his statement made to the police on vital aspects against the accused.
54. Coming to the last seen evidence, prosecution case is that at 9:30pm, PW2 spoke over telephone with the deceased; the telephone held by the deceased at that time was of the accused; the deceased told PW2 that he was with the accused and would reach home shortly; thereafter dead body of the deceased was found by the police at 9:20am next day vide DD No. 13A Ex. PW15/A. In other words, there was a gap of 12 hours approximately between the last communication of PW2 with the deceased and discovery of the dead body.
55. Approximate time of death of the deceased would also be very important factor in order to appreciate the last seen theory. As per the postmortem surgeon PW13, he conducted postmortem on the dead body at 2:45pm on 22.05.06; in cross examination PW13 admitted having not conducted a number of tests as described above, which are SC No. 94/06 Page 47 of 63 pages 48 relevant in order to arrive at approximate time of death; in cross examination PW13 expressed a possibility that death of the deceased could have occurred 8-12 hours ago. In other words, as per PW13 death of the deceased could have occurred at any time between 2:45am to 6:45am of 22.05.06. Time 9:30pm of 21.05.06 being the last time when the deceased was present with the accused, there is a gap of more than 5 hours to 9 hours between the last seen and death of the deceased.
56. As held by the Hon'ble Supreme Court in the case of RAMREDDY RAJESH KHANNA REDDY vs STATE OF ANDHRA PRADESH 2006 III AD (SC) 425 and VENKATESAN vs STATE OF TAMIL NADU 2008 (3) CC Cases (SC) 332, last seen theory would come into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased found dead is so small that possibility of any SC No. 94/06 Page 48 of 63 pages 49 person other than accused being the author of the crime becomes impossible.
57. In the case of STATE OF UP vs SATISH, 2005 (3) SCC 114, Hon'ble Supreme Court observed thus, "22. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen 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 SC No. 94/06 Page 49 of 63 pages 50 those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2."
58. In the case of JASWANT GIR vs STATE OF PUNJAB, 2006 (4) LRC 130 SC, the period of 5 hours between the deceased boarding the vehicle of the accused and discovery of the dead body was held to be a considerable time gap by the Hon'ble Supreme Court and it was held that in the absence of any other link in the chain of circumstantial evidence, it would be impossible to convict the accused solely on the basis of last seen evidence.
59. In the case of VENKATESAN vs STATE OF TAMIL NADU, 2008 (3) CC CASES SC 332 also, it was held that the last seen theory comes into play where the time gap between the point of time when the deceased and the accused were last seen alive and when the deceased was found dead is so small that possibility of any other person SC No. 94/06 Page 50 of 63 pages 51 than the accused being the author of the crime becomes impossible.
60. In the present case, as described above, there is a gap of about 12 hours between the accused last seen with the deceased (even if the telephonic talk between the deceased and PWs is taken to be last seen evidence) and discovery of the dead body. Even going by the forensic evidence as regards approximate time of death, there is a gap of 5 hours to 9 hours between the point of last seen and death of the deceased. Such a long time gap demolishes theory of last seen and cannot help the prosecution.
61. Besides, as per PW2 in cross examination, the accused had dropped the deceased at Rana Pratap Bagh while dead body of the deceased was found at Mukherjee Nagar, almost 6 kilometers away and there is no evidence in that regard qua last seen hypothesis.
62. In view of the time gap described above, it cannot be said that the accused and none else was the author of the SC No. 94/06 Page 51 of 63 pages 52 crime. As reflected from evidence described above, the deceased was himself involved in two criminal cases and no investigation was done to rule out the possibility of enmity of the deceased with someone else.
63. Going a step deeper, investigator ought to have probed the possibility of some other person having killed the deceased, which was not done despite glaring facts. There certainly was a witness who could have explained about the deceased being alive even after 9:30pm on 21.05.06, but the investigating officer did not examine him. That witness was the person at whose instance scooter of the deceased was discovered. The investigating officer PW29 stated in his cross examination that he did not interrogate anyone in PS Timar Pur as to by whom the said scooter was found and from where. Scooter of the deceased was not even kept in malkhana of PS Timar Pur. It cannot be ruled out that this aspect was not investigated SC No. 94/06 Page 52 of 63 pages 53 deliberately as the same would have demolished the last seen evidence.
64. So far as shoes of the deceased allegedly recovered at the instance of the accused are concerned, it fails to appeal to reason as to why a person after killing someone would take off shoes of the deceased and throw the same away. Removal of shoes from the dead body can in no manner fetch any benefit to the killer. Prosecution has failed to even explain as to how and when the shoes got separated from dead body of the deceased or during his life time.
65. Then, a dead body found without shoes but with socks is a very peculiar look and cannot be missed while recording condition of the dead body in death report. But as deposed by PW25 ASI Virender Singh, inquest form Ex. PW25/A does not mention this fact. It is not that the dead body was bare foot; photographs Ex. PW26/1&2 clearly show socks on the deceased. But column no.7 of death report Ex. PW25/A as regards condition of clothes etc. and SC No. 94/06 Page 53 of 63 pages 54 marks of either having been forcibly removed or being blood stained is struck out with no description of absence of shoes. While placing reliance on shoes, absence of such mention in death report cannot be ignored.
66. Even the circumstances of the alleged recovery of shoes are not free from doubt. As admitted by PW29 the investigating officer, on 16.07.06 he passed across the bushes from where shoes were recovered on 18.07.06, but despite being armed with disclosure statement of the accused, recovery of shoes was not done on 16.07.06. On 18.07.06 also, no public person was joined in the recovery proceedings. In the case of ASHISH BATHAM vs STATE OF MP 2002 (7) SCC 317, Hon'ble Supreme Court observed that the delayed recovery that too after the second remand of the accused casts serious doubts about the said circumstance.
67. Not only the delay factor, there is also a glaring contradiction that hits the shoes recovery circumstance.
SC No. 94/06 Page 54 of 63 pages 55 This contradiction is that PW3 Ct. Hitender Singh who was a part of the police team states that the shoes were recovered at about 2:00-3:00 pm while the investigating officer PW29 states that shoes were recovered at 10:30am and at 2:00pm the accused was produced before the learned magistrate.
68. Recovery proceedings of the shoes also fall under suspicion in view of the seizure proceedings. Seizure memo Ex. PW3/A pertaining to the shoes clearly shows an addition made from point A to A to the effect that the shoes were placed in a white polythene and sealed with the seal of RK. PW29 investigating officer admitted in his cross examination that the shoes were first got recovered, thereafter seizure memo was prepared and thereafter the shoes were sealed. Sealing of shoes having been done subsequent to preparation of seizure memo, mention of sealing from point A to A in seizure memo Ex. PW3/A casts doubt of fabrication.
SC No. 94/06 Page 55 of 63 pages 56
69. Then comes the circumstance of identification of the shoes. As described above, shoes were got identified by police from PW1, brother of the deceased before the learned TIP Magistrate. PW2 wife of the deceased was not called for TIP proceedings. As described by PW2 and other witnesses of prosecution including PW1, the deceased had been living with his wife separately from rest of the family after his love marriage. Rather, as per PW2, brother of the deceased came to their house only once and that too on birthday of their daughter. Under these circumstances, it is PW2 wife of the deceased who was better equipped to identify the shoes in TIP proceedings. In witness box, on being shown shoes Ex.P1&P2, PW2 not just stated that the same were not of her husband but also explained further that her husband used to wear gurgabi, the shoes without laces. Despite such a demolition of prosecution case, PW2 was not recalled for cross examination after declaring her SC No. 94/06 Page 56 of 63 pages 57 hostile, in terms with law discussed in the case of SATNAM SINGH vs STATE OF PUNJAB, 2008 (1) CC CASES 369 HC.
70. Even the TIP proceedings conducted were futile since shoes similar to the case property shoes were not mixed. As described above, the case property shoes bore a specific mark of "S KUMAR" on insole while the shoes used for mixing up did not bear such a mark. This defect renders the TIP proceedings invalid and my view in this regard stands fortified by the judgment of Hon'ble Supreme Court in the case of ASHISH BATHAM (supra).
71. A very important facet of the present case is an unexplained delay in registration of FIR. As per prosecution case, murder took place on the night intervening 21.05.06 and 22.05.06; dead body of the deceased was found by the police at 09:20am on 22.05.06; post mortem conducted at 2:45pm on 22.05.06 confirmed it to be a case of homicide. But FIR Ex.PW16/A was registered on 08.07.06. This delay in registration of FIR remains SC No. 94/06 Page 57 of 63 pages 58 unexplained by the prosecution. Even the contents of FIR Ex.PW16/A are contrary to entire case of the prosecution in so far as FIR Ex. PW16/A describes the date of receipt of information of offence at police station as 08.07.06 while Ex.PW15/A is DD No.13A as per which the police station had received information about the dead body having been found at 09.20am on 22.05.06 itself. Prosecution has failed to explain as to why FIR was not registered by police on 22.05.06 itself instead of waiting till 08.07.06.
72. In the case of THULIA KALI vs STATE OF TAMILNADU, AIR 1973 SC 501 Hon'ble Supreme Court held that FIR in a criminal case is an extremely vital piece of evidence for the purposes of corroborating the evidence adduced at the trial and delay in lodging FIR quite often results in embellishment which is a creature of afterthought. Delay of 20 hours after the occurrence in registration of FIR in that case was held to be unsafe for conviction of accused upon it.
SC No. 94/06 Page 58 of 63 pages 59
73. In the case of GANESH BHAWAN PATEL vs STATE OF MAHARASHTRA, AIR 1979 SC 135, unexplained delay of 14 hours; in the case of PEDIREDDY SUBAREDDY vs STATE OF ANDHRA PRADESH, AIR 1991 SC 1356, unexplained delay of 15 hours; in the case of KUNDAN LAL vs STATE, 73 (1998) DLT 256, unexplained delay of 6 days; and in the case of MOHINDER SINGH vs STATE OF PUNJAB, 2003 (3) JCC 1943 SC, unexplained delay of about 3 hours in registration of FIR was taken to be fatal to the prosecution case.
74. In the case of HANSRAJ vs STATE OF PUNJAB, 2007 (3) CC CASES 139 HC, an unexplained delay of 10 days on the part of the alleged eye witness in reporting the matter to the police was held to be a circumstance making the testimony of the witness unworthy of acceptance.
75. As described above, between the period from 22.05.06 and 08.07.06, the first informant PW1 repeatedly visited the police station and once or twice in the presence SC No. 94/06 Page 59 of 63 pages 60 of the accused also. Nothing prevented the investigating officer to record statement of PW1 at the earliest in order to register the FIR. In the case of SUBHASH CHAND vs STATE OF RAJASTHAN, 2001 (2) JCC 332 SC, unexplained delay of 6 days in recording the statement of a material witness was held to weigh against prosecution. In the case of BALA KRUSHNA SWAIN vs THE STATE OF ORISSA, AIR 1971 SC 804 Hon'ble Supreme Court held that unjustified and unexplained long delay on the part of investigating officer in recording statement of material witnesses during investigation of a murder case would render evidence of such witness unreliable.
76. Prosecution has failed to explained as to why the FIR was not registered immediately upon receipt of information vide DD No.13A at 09.20am on 22.05.06 as regards dead body having been found or subsequently at 02.00pm when DD No.44B dated 22.05.06 was recorded after SI Bakshish Singh returned from the spot and SC No. 94/06 Page 60 of 63 pages 61 described the condition of dead body. Photographs Ex.PW26/1-3 clearly reflect that the deceased did not die of natural reasons. By the evening of 22.05.06, even post mortem had been done. Photographs and post mortem report having shown it to be a case of unnatural death, FIR ought to have been registered by PS Mukherjee Nagar on 22.05.06 itself.
77. Although, it was not argued on behalf of State, I have also examined the extent of confusion in the mind of police as to whether the area where dead body was found fell under the jurisdiction of PS Mukherjee Nagar or PS Timar Pur. But such a confusion cannot be taken as an explanation for such a colossal delay in registration of FIR as in such cases, PS Mukherjee Nagar on 22.05.06 ought to have registered a zero FIR and if required, transferred the same to PS Timar Pur. Reference in this regard can be made to the judgment of Hon'ble Supreme Court in the case of STATE OF ANDHRA PRADESH vs PUNATI SC No. 94/06 Page 61 of 63 pages 62 RAMULU, 1994 (3) CC CASES 6 SC and of Hon'ble Delhi High Court in the case of SONU vs GOVERNMENT OF NCT OF DELHI, MANU/DE/2789/2007. Further, prosecution has not even adduced evidence to show as to when the matter was transferred by the senior officers from PS Timar Pur to PS Mukherjee Nagar and as to whether PS Timar Pur had registered any FIR in this case.
78. This unexplained delay of 46 days also thus weighs heavily against the prosecution.
79. Prosecution has failed to establish not just a complete chain of circumstances, even the circumstances tried to be established could not be cogently and firmly so established by the prosecution. Prosecution has not been able to walk through the distance between "may be true"
and "must be true". Prosecution has failed to prove beyond reasonable doubt that the accused committed murder of the deceased Sh. Pramod Kumar Sharma or caused SC No. 94/06 Page 62 of 63 pages 63 disappearance of any evidence connected with the offence of killing of Sh. Pramod Kumar Sharma.
80. Consequently, accused is held not guilty of the charges framed against him and is acquitted. Accused is in judicial custody and if not required in any other case, accused be immediately released.
81. I must also record appreciation for the learned defence counsel and learned Additional Public Prosecutor for the able assistance extended by them in conducting the hearing of this case on day to day basis, because of which the matter came to be decided within the time as targeted.
82. File be consigned to records.
ANNOUNCED IN THE OPEN COURT ON 07th SEPTEMBER 2009 (GIRISH KATHPALIA) ADDL. SESSIONS JUDGE SPECIAL JUDGE, NDPS(NORTH) DELHI SC No. 94/06 Page 63 of 63 pages