Delhi District Court
State vs . on 4 January, 2014
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS,NEW DELHI.
ID No. 02403R0
Date of filing of charge sheet : 13.02.2008
Date of framing of charge : 30.01.2009
Date of final arguments : 18.12.2013
Date of judgment : 04.01.2014
SC No.133/13
FIR NO. 357/06
PS Tilak Marg
U/s 302 of IPC
In re:
STATE
Vs.
MITHLESH PANDEY
S/O SRI KANT PANDEY
VILLAGE HANDIYA,
PS NARDIYAGUNJ,
DISTT. NEVADA, BIHAR
APPEARANCES
Present : Mr. Salim Khan, Ld. APP for the State.
Mr. Chandan Malik, Ld. Amicus Curiae for the accused.
04.01.2014
JUDGMENT
1. Accused Mithlesh Pandey S/o Sh. Sri Kant Pandey has been arraigned for trial on the charge of committing murder of one Ashok Khanna S/o Late Sh. A. C. Khanna in the bed room of the house of the deceased at Kothi No.7, Hailey Road, New Delhi in the State v. Mithlesh Pandey 1 of 38 2 intervening night on 10th - 11th September 2006 by inflicting several blows with a garden axe.
FACTS
2. The case of the prosecution is that on 11.09.2006 an information was recorded vide DD No. 34A at about 06:15 p.m in the evening at PS Tilak Marg Ex. PW14/A on an information by Wireless Operator through HC Umesh of the PCR about somebody informing from House no. 7, Hailey Road, New Delhi that "somebody has injured my father". The call was marked to SI Om Prakash (PW40) who reached the spot with Ct. Prahlad No. 392/ND (PW39) and in the meanwhile since information had been relayed on the police band, the SHO PS Tilak Marg Inspector Satpal Sigh (PW53) also reached the spot along with his team where they found relatives of the deceased; that the police found the right side door of the Verandah of the Bungalow open, both doors of the right room were also open besides doors of room of left side were also found open and inside this room the dead body of deceased identified as Ashok Khanna was found lying on the floor in a pool of blood on its face and chest.
3. The police found that deceased was wearing a half sleeve white Tshirt on body while lower portion of body was bare having no clothes; that one blue pyjama was found near legs of the deceased near bed; blood stains were found on bed sheet spread over the bed besides the cushion corner and bed sheet placed below cushion; that blood stains were also found on northern wall State v. Mithlesh Pandey 2 of 38 3 of room, wooden cupboard's glass placed near dead body; that there were seen injuries marks on the different parts of the body of the deceased including head, face, left ear, neck, back, waist, belly, shoulder, buttock and legs; that one broken teeth was found under the dead body, blood marks were also found on he file placed over wooden stool near dead body; that telephone wires were found disconnected with receiver displaced from the instrument, although other articles were found in order.
4. The case of the prosecution further is that one blood stained cushion was found on a chair in the left corner of veranda of bungalow and some blood stains were also present on the floor below the chair and it was revealed that the chair was in use of the missing security guard Mithlesh Pandey.
5. It is then the case of the prosecution that statement of the complainant Shiv Khanna (PW 3) in Hindi was recorded Ex. PW3/A the gist of which is that "he along with his mother has been residing separately in their House at Greater Kailash PartI, New Delhi while his father deceased Ashok Khanna used to live alone in property no. 7 Hailey Road, New Delhi, in which he had a share by virtue of it being his ancestral property; that his father was having mobile no. 9811102814 Hutch Sim Card and Nokia handset besides landline no. 23716143 and that yesterday i.e 10.09.2006 he had spoken to his father on telephone at 11:30pm and that his father told him that he had called someone from the Security Agency because somebody had drugged the security guard; that thereafter neither he nor any State v. Mithlesh Pandey 3 of 38 4 member of his family spoke to his father but he had been continuously calling his father on 11.09.2006 right after 11:00a.m trying to contact him but there was no response from the mobile while landline was relaying repeated message 'the number you have called is busy please call after sometime'; that finally he along with his friend Rishab (PW2) came to the house at 7 Hailey Road, New Delhi where they found main gate of the Bungalow locked, so they jumped over the gate and came inside and found verandah gate open, inside room also opened, the door of his father's room also opened; that lights of room was on, where they found dead body of his father." On the basis of rukka/ complaint, Ct. Ganga (PW31)was sent with tehrir to PS Tilak Marg and the present FIR Ex. PW 14/B was got recorded at 9:15p.m.
6. During investigation, as per the standard procedure, the Crime Team with the Dog Squad were called at the scene of the Crime that was photographed and also videographed, site plan Ex. PW 53/B was prepared; that dead body of the deceased was examined who was wearing two rings in his right hand, one was golden colour and other made of iron, there was one ring on the left hand with white metal having red stone that were blood stained which were seized vie memo Ex. PW 3/C and sealed at the spot which are Ex. P1 (Collectively). Needless to state that the case exhibits were seized from the spot, sealed and later sent for forensic analysis.
State v. Mithlesh Pandey 4 of 38 5
7. During investigation, postmortem on the dead body of the deceased was conducted and the opinion as to the cause of death was given by the Dr. Shrabana Kumar Naik, Associate Professor, Deptt. of Forensic Medicine and Toxicology from Lady Harding Medical College, New Delhi (PW15) to the effect that "death occurred due to shock and haemorrhages as a result of multiple injuries mentioned in the postmortem that were ante mortem in nature, fresh in duration and could have been caused by hard and blunt weapon and all injuries together are fatal in the ordinary course of nature."
8. It is the case of the prosecution that during investigation Manoj Sharma (PW13) and Sanjeet Singh from M/s Sterling Security Services were examined who stated that on 10.09.2006 they were instructed to check the guard at 7 Hailey Road, New Delhi; that on reaching the spot security guard Mithlesh Pandey was found crying; that deceased Ashok Khanna wanted the guard to be replaced; that although security officers requested the deceased to wait till morning for replacement, deceased Ashok Khanna insisted to replace the guard Mithlesh Pandey forthwith; that guard Mithlesh Pandey showed them the quality of food being provided by deceased Ashok Khanna; that Manoj Sharma and Sanjeet escorted Mithlesh Pandey out of bungalow in the intervening night on 10/11 September 2006 and dropped him somewhere near K. G. Marg red light, New Delhi at about 12:30a.m.
State v. Mithlesh Pandey 5 of 38 6
9. It is further the case of the prosecution that police teams were deputed and sent to the native place of the accused viz., Village Handiya, PS Nardigunj, District Nevada, Bihar for search of the suspect Mithlesh Pandey and IMEI number 490527/10/231274/10 of the missing mobile of the deceased was put on surveillance; that during investigation missing mobile phone with relevant IMEI 490527/10/231274/10 was activated on Airtel Bihar, phone no. 9931962055 at District Lakhisarai, Bihar on 12.09.2006 and one call was made using the missing mobile phone of the deceased; that investigation revealed that the said Sim was belonging to Shyam Sunder Pandey (PW12), a distant relative of accused Mithlesh Pandey but when the police party reached at that place, accused had eloped with the mobile phone. It is the case of the police that although raids were conducted at different places to nab the accused but in vain.
10. It is the case of the prosecution that on 24.09.2006 Smt. Neena Khanna (PW4) wife of deceased while cleaning the House at 7, Hailey Road, New Delhi including the room where the gruesome murder was committed, chanced upon to find a blood stained 'garden axe' Ex. PW 4/1 beneath the cupboard inside the bedroom and she informed the SHO PS Tilak Marg who along with the Crime Team reached the spot; that rough sketch of the axe Ex. PW 4/B was prepared and it was seized vide memo Ex. PW 4/C and sealed and taken into custody by the police. The case exhibits were sent to CFSL, CBI Lodhi Road and it appears that on 19.10.2006 case was State v. Mithlesh Pandey 6 of 38 7 transferred to Crime Branch, Anti Homicide Section and the case was marked to Inspector Shahnoor Khan( PW48); that although reward of Rs.25,000/ was announced and raids were conducted at different places in Bihar and Jharkhand, the accused remained at large.
11. It appears that the investigation was then transferred to Interstate Cell, Crime Branch and marked to Inspector K. G. Tyagi( PW54). It is then the case of the prosecution that on examination of the case exhibits, CFSL report revealed presence of two blood group 'O' and 'A' from two different DNA that were found from the biological exhibits and the DNA of the exhibit 'K' i.e cushion and blood stains found below the chair (which was kept in verandah) in use by the suspect Mithlesh Pandey was different from the blood group and DNA profile of the deceased; that the police made some headway when the mobile phone of the deceased was recovered from one Kuldeep Raut (PW36) at Lakhisarai, Bihar who stated that mobile had been sold to him by accused Mithlesh Pandey sometimes in Sep.October 2006 for Rs. 450/. The accused Mithlesh Pandey was declared Proclaimed Officer after initiating proceedings u/s 82/83 of Cr.P.C and finally on a secret information accused was arrested on 19.11.2007 from New Delhi Railway Station.
12. It is then the case of the prosecution that during interrogation accused confessed that on the day of incident i.e 1011th September, 2006 he had some altercation with the deceased State v. Mithlesh Pandey 7 of 38 8 and he had taken some liquor and Ganza (opium) and before arrival of the deceased he fell sleep that irked the deceased who called the Supervisor from the Security Company and he was escorted out of the house but he came back to take revenge and killed the deceased with the garden axe; that one wrist watch of the deceased was also recovered from accused Mithlesh Pandey; that during further investigation blood/ DNA sample of the accused was taken and sent for forensic analysis; that accused refused to undergo Narco analysis despite the order from the Court; that during investigation it was found that blood stains on the exhibits K' i.e cushion matched with the DNA profile of the accused; that the wrist watch of the deceased was identified by Smt. Neena Khanna Ex. PW 4/3 in judicial test identification of the case property as belonging to her husband; that after completion of the investigation the present charge sheet was filed against the accused.
CHARGE
13. Needless to state that the accused was put charge for committing offence u/s 302 of IPC to which he pleaded not guilty and claimed trial.
PROSECUTION & DEFENCE EVIDENCE
14. Prosecution in order to prove its case examined as many as 54 witnesses. The following witnesses were family members of the deceased:
State v. Mithlesh Pandey 8 of 38 9
15. PW1 was Mr. Promod Chand Khanna who is the real uncle of deceased. This witness deposed about the family of his father Puran Chand Khanna who expired in the year 197475 and deposed about the manner in which the rights and interests of the property in question i.e at 7 Hailey Road, New Delhi and other properties were inherited by the legal heirs. This witness also gave an account of the litigations that arose in respect of inheritance of the property inter alia pointing out that deceased Ashok Khanna had been actively pursuing the legal remedies.
16. PW2 was Mr. Rishabh Khanna a friend of Shiv Khana and PW3 was Mr. Shiv Khanna the later being son of the deceased. Both PW2 and 3 deposed about visiting the spot on 11.09.2006 sometimes in the evening and the finding dead body of the deceased. PW2 deposed that he called the police from his mobile no. 9873759747 and informed that "somebody had injured his father". PW3 Shiv Khanna reiterated that he talked to his father on the previous night on 10.09.2006 about the security guard who was missing after the incident. PW3 proved his complaint to the police Ex. PW 3/A and deposed about various case exhibits that had been collected and seized by the police from the spot vide memo Ex. Pw 3/B to Ex. PW 3/K. He also deposed about the investigation conducted by forensic expert at the place of occurrence collecting various exhibits from the spot which are Ex. PW 3/L to Ex. PW 3/V on 12.09.2006. The three rings that were recovered from finger were marked P1 (Colly). The various case exhibits including blood in State v. Mithlesh Pandey 9 of 38 10 taken on gauze material, six broken teeth etc are marked P2 to P31 on which I would dwell later on in this judgment. PW3 further testified that the scale site plan of the place was prepared on 07.01.2008 on his pointing out Ex. PW 52/A.
17. PW4 was Smt. Neena Khanna wife of the deceased. She corroborated the version of her son PW3 in regard to discussion that took place regarding security guard on 10.09.2006. She further deposed reaching the spot and finding the dead body and she deposed that one pant, one purse, one wrist watch besides a mobile phone of the deceased missing from the room. She also deposed about the recovery of 'garden axe' on 24.09.2006 while cleaning the house and identified it as P4/1. She also identified the mobile phone handset of the deceased Ex. PW4/2 besides identifying the wrist watch of the deceased Ex. PW4/3.
18. The other public witnesses were as under:
PW5 was Mr. Bhart Lal residing in the servant quarters of Kothi No.7, Hailey Road who testified that on 10.09.2006 when he came back from work at 10:30p.m his brother Rajesh went to see deceased Ashok Kumar since his security guard was having stomach pain; that one boy had been called by his brother from the canteen on the asking of Ashok Khanna and the said canteen boy remained with the security guard. He deposed that on 11.09.2006 when he went for duty 6:00 to 6:30a.m he did not see security guard accused Mithlesh Pandey and when he came back at 1:00 or 1:30p.m again the security guard was not present nor he saw State v. Mithlesh Pandey 10 of 38 11 deceased Ashok Khanna and, therefore, he had called Sudha Khana. He testified that deceased was a hot heated person who used to abuse everyone.
19. PW8 was Rajesh another one residing in the servants' quarters at the Kothi who testified that his mother was working as maid servant who corroborated the version of PW6 Suresh but he also stated that he came to know later that accused was making a pretext of pain in stomach.
20. PW12 was Shyam Sunder Pandey. He deposed that accused is married to the daughter of his uncle Vishu Dev Pandey. He did not support the prosecution case as he stated that about two years back accused took his mobile phone no. 9931962055 and called someone and he denied that accused was having any mobile phone with him or that accused was seen in a perplexed state when he met him.
21. PW36 was Mr. Kuldeep Raut resident of Village Kunjala, PO Ohari, District Nawadah, Bihar who testified that sometimes in September October 2006 he was returning from his work to his railways quarter when accused met him on the way and told that his articles had been stolen and he begged for help; that accused wanted to go to Delhi did not have any money except one mobile phone; that he purchased the mobile phone from the accused for Rs.450/ and accused stated that he would return soon to collect the mobile back and pay back his money but his mobile phone of Nokia 6110 remained with him and later he purchased SIM no.
State v. Mithlesh Pandey 11 of 38 12 9835407269 and operated the mobile phone; that Delhi Police officials came to his quarter on 04.12.2006 and inquired about the mobile instrument which was seized vide memo Ex. PW 36/A. He also identified the photographs of the accused shown to him as belonging to the same person who had sold mobile phone Ex. PW 36/B. The mobile phone was proved as Ex. PW 4/2 and Sim card is Ex. PW 36/1.
22. The following witnesses were from M/s Sterling Security Services.
PW6 was Chander Shekhar, Security Supervisor during the relevant time. He deposed that in the intervening night on 10/11th September 2006 at around 12 mid night he received a call from the mobile of Manoj Sharma who inquired whether Mithlesh Pandey was a drug addict and such fact was confirmed by him in the affirmative.
23. PW 11 was Satpal Singh Chauhan from M/s Sterling Security Services who testified that accused Mithlesh Pandey was enrolled with them since 15.08.2006 who had been deputed for duties at the house of deceased Ashok Khanna. He further deposed that antecedents of accused Mithlesh Pandey had been verified and there was no adverse report against him.
24. PW13 was Manoj Sharma from M/s Sterling Security Services who also deposed that accused Mithlesh Pandey was working with their agency and that on 10.09.2006 he was accompanied with colleague Sarjeet returning back to office after State v. Mithlesh Pandey 12 of 38 13 dropping a guard at Okhla and on way back Mr. G. S. Kalsi, Operation Manager called on his mobile directed them to reach at 7 Hailey Road as Mr. Khanna had informed that guard was weeping; that on reaching the spot they found that accused Mithlesh Pandey was crying and complained that he would not like to work because landlord used to get his utensils washed from him besides asking him to cook food and as he was a Brahmin, would not do such thing. He also deposed that deceased Khanna complained that guard was drunk but when he smelled the breath from the mouth he sensed that was not so and accused Mithlesh complained that he was not being provided adequate food; that Mr. Khanna instructed him to remove the accused immediately from the site; that although he requested the deceased that he might wait for replacement till morning but deceased Khanna was insisted and they took accused Mithlesh Pandey away and dropped him at 12:45a.m at Kasturba Gandhi Marg and went away.
25. PW7 was Sunil Pandey who during the relevant time was running a Security Agency in the name and style of New Marcel Security Services. He deposed that accused Mithlesh Pandey worked in his agency but after 10 days he was removed as he had some scuffle with another security guard and he deposed that accused used to remain under influence of some drug or the other.
26. PW9 was Rama Nand Singh, Security Supervisor from New Marcel Security Services who corroborated that accused Mithlesh Pandey had been removed after 10 days for having a quarrel with State v. Mithlesh Pandey 13 of 38 14 another and that accused was a drug addict.
27. The following witnesses were police witnesses:
PW14 was HC Hira Lal. He was duty officer at PS Tilak Marg who recorded DD no. 34A Ex. PW 14/A. He further deposed that at 9:15pm he recorded the present FIR on rukka brought by Ct. Ganga, he made his endorsement Ex. PW 14/C and prepared the FIR carbon copy of which is Ex. PW 14/B.
28. PW16 Ct. Ved Prakash. He was a dogs handler and deposed that on 11.09.2006 he brought sniffer dog to the spot and the dog was not able to suit any trail beyond the verandah and the exercise did not yield any fruitful result.
29. PW17 was HC Ravider Kumar. He was a Member of the Crime Team that reached the spot and he took 64 photographs of the spot from different angles as per directions of IO Ex. PW 17/A 1 to 64 and the negative of which are accordingly marked ex. PW 17/B1 to B64 respectively.
30. PW20 was HC Karamvir. He deposed that on the intervening night on 11/12th September 2006 he was deputed at the place of occurrence by the SHO to watch over place and secure place of occurrence and he was relieved at 8:00 a.m on 12.09.2006.
31. PW21 was HC Narpat Singh who deposed that as per instruction of IO he brought the PCR record in regard to DD no. 34A from the CPCR office which are Ex. PW 21/A to D. He further deposed that on 18.01.2008 he was Malkhana Incharge and SI Sanjeev took weapon of offence i.e an axe which was taken to State v. Mithlesh Pandey 14 of 38 15 LHMC for examination. He further deposed that certain case exhibits were dealt by him on 19.01.2008 and 04.02.2008 and he proved the relevant entries in the Malkhana Register.
32. PW23 was HC Prem Raj he was deputed to guard the site from 8:00 a.m to 8:00p.m on 12.09.2003.
33. PW24 was Ashok Kumar he was motorcycle rider who delivered copy of the FIR at the residence of Sh. Sanjay Bansal Ld. Area MM during the relevant time.
34. PW26 was Inspector Maninder Singh who was Incharge of Mobile Crime Team and went to spot on 24.09.2006 on which date the blood stained axe (kulhari) was recovered at the instance of Neena Khanna. He deposed that Mr. A. N. Kunju, lifted five chance prints from axe and the crime report was proved as Ex. PW 26/A and also identified the axe PW 4/1.
35. PW27 was ASI Umesh Chand. He was posted at PCR police Hqr, and received the information from mobile no. 9873759747 on 11.09.2006.
36. PW28 was HC A. N. Kanju who was member of the Crime Team and lifted chance prints from the axe Ex. PW 4/1 and deposed that he took photographs which are Ex. PW 28/A1 to A8, negatives of which were proved as Ex. PW 28/9.
37. PW30 ASI Ram Singh. He was member of the police team that along with SHO PS Tilak Nagar and SI Rajinder (PW 51) went to the Kothi no. 7, Hailey Road on 11.09.2006 during which time the scene was examined and various exhibits were seized and sealed.
State v. Mithlesh Pandey 15 of 38 16
38. PW31 was Constable Ganga Ram. He deposed that on 11.09.2006 he was on patrol duty in the area and at about 6:20p.m he received a wireless message in response of which he reached 7 Hailey Road, New Delhi where he met SI Om Prakash and PCR Officials. Suffice to state that he deposed seeing dead body at the place of occurrence besides meeting Shiv Khanna son of the deceased and he was associated in the investigation on that particular day. He then deposed that on 15.09.2006 he again joined the investigation along with SI Rajinder Prasad and SHO PS Tilak Marg and went to LHMC Hospital where they collected postmortem report, nine sealed parcels sample seal of LHMC.FMT vide memo Ex. PW 10/A.
39. PW32 was Ct. Binder Singh. He was a member of the mobile crime team that reached the spot on 11.09.2006 around 7p.m in the evening and he deposed that chance print were lifted by him from the receiver of the landline phone besides wire of the telephone that was uprooted.
40. PW33 was Inspector S. N. Pandey. He was Incharge of the Mobile Crime Team that reached the spot on 11.09.2006 and inspected the place of occurrence and the report Ex. PW33/A was prepared.
41. PW34 was HC Rambir Singh. He was posted as Constable at PS Tilak Marg. He reached the spot on 11.09.2006 at about 6:20p.m with TATA 407 bearing registration no. DL1LD 4959 and the witness gave a vivid description of the scene of occurrence.
State v. Mithlesh Pandey 16 of 38 17
42. PW37 Ct. Vijay who conducted the videograpy of the scene of occurrence on 11.09.2006. He deposed that video cassettee containing videography was handed over to him by IO Inspector Satyapal that was sealed in a pullanda wit the seal of SP and seized vide memo Ex. PW 37/A and the video cassette marked Ex. PX in his evidence.
43. PW38 was HC Brij Prakash. He was posted as MHCM at PS Tilak Marg during the relevant time. He deposed about the entries in regard to sealed pullands that were received by him in the Malkhana and its movement in regard to sending to FSL and back and such entries were proved as Ex.PW38/A to Ex. PW 38/L.
44. PW39 was HC Prahlad Singh who reached the spot on 11.09.2006 vide DD no. 34A along with SI Om Prakash and associated during the investigation.
45. PW40 was SI Om Prakash (retired). At the cost of repetition, he on receiving DD no. 34A reached the place of occurrence where he was joined later on by SHO and other members of the police staff.
46. PW41 was HC Krishan Pal Singh posted as Head Constable at PS Tilak Marg. He collected one CFSL form, two seizure memo copies, two sealed pullands etc and deposed depositing the same on 27.09.2006 with CFSL CBI Lodhi Road, New Delhi.
47. Similarly, PW42 was ASI Bahadur Singh he was also associated during the investigation. He deposed that as per instructions of SHO PS Tilak Marg he collected sealed pullands State v. Mithlesh Pandey 17 of 38 18 from the Malkhana Incharge deposited with CFSL, Lodhi Road, New Delhi. He further deposed joining investigation o n 24.09.2006 with the weapon of offence an axe was recovered.
48. PW45 was SI Rajesh Maurya posted at PS Tilak Marg during the relevant time and he was associated during the investigation on 12.09.2006 when the place of occurrence was examined by the team of CFSL officials.
49. PW46 was Ct. Chaman Lal posted at PS Tilak Marg. He deposed that on 27.11.2007 he was performing duty as Malkhana Munshi and on that day on sealed pulland with the seal of CMO RML hospital containing blood sample on gauze of accused Mithlesh Pandey was sent to CFSL, CBI Lodhi Road New Delhi and he proved the relevant entries which are Ex. PW 46/A.
50. PW47 was Ct. Neeraj Kumar. He was posted at Crime Branch, New Delhi on 18.11.2007 on that day he joined investigation along with Inspector K. G. Tyagi and others as which day the accused Mithlesh was arrested at New Delhi Railway Station. He further deposed about the interrogation and apprehension of the accused in the matter.
51. PW48 was Inspector Sheh Noor Khan. He stated that on 25.10.2006 investigation of this case was entrusted to him in the Anti Homicide Section, Crime Branch, Delhi and the police team was sent to Nawada District Bihar to apprehend the accused Mithlesh Pandey and they came back on 09.11.2006 and neither the accused nor his parents were available at their native place as they State v. Mithlesh Pandey 18 of 38 19 had absconded. He further deposed that on 15.11.2006 police team went to Charo, District Bhokaro City Chatisgarh to trace the accused but in vain. He then deposed that on 22.11.2006 the investigation was transferred to Inter State Cell, Crime Branch, Delhi.
52. PW49 was SI Sanjeev Kumar posted at Inter State Cell, Crime Branch. He deposed that on 18.11.2007 he joined police team and narrated the sequence of events that led to approaching the accused and subsequent interrogation in the present matter.
53. PW50 was SI Mukesh Kumar who was associated during the investigation and deposed that on 04.12.2006 he was member of the team that reached at RMS Colony, CD 38, Keol, District Lakhi Sarai, Bihar where they met one Kuldeep Raut and inquired about the mobile phone Nokia 6100 of the deceased. The witness further deposed about the seizure of Nokia phone from him besides Sim car.
54. PW51 was Inspector Rajendra Prasad. He was also member of the police team that investigated the matter at the spot on 11.09.2006 and 12.09.2006 and gave a vivid description of the place of occurrence and the proceedings that were conducted during the investigation of this case.
55. PW52 was Inspector Devender Singh (retired) who was posted as Inspector draftsman, Crime Branch, Delhi and prepared scaled site plan pm 30.01.2008 which is Ex. PW 52/A. State v. Mithlesh Pandey 19 of 38 20
56. PW53 was Inspector Satpal Singh who was posted as SHO PS Tilak Marg during the relevant time and deposed about the investigation conducted by him also giving a vivid description of the place of occurrence on which I would dwell later on in this judgment.
57. Lastly, PW54 was Inspector K. G. Tyagi posted at Inter State Cell of the Crime Branch, Delhi the team that finally nabbed the accused and prepared the charge sheet and filed the same in the Court.
Medical & Forensic Evidence
58. PW10 was Kishan Chand Thakur record clerk from LHMC Forensic Department who deposed that on 15.09.2006 he handed over 9 parcels with one sample seal with LHMC FMT to IO which were taken by him vide memo Ex. PW 10/A.
59. PW15 was Dr. Shrabana Kumar Naik, Associate Professor, Deptt. of Forensic Medicine and Toxicology from Lady Harding Medical College, New Delhi (PW15). She deposed that on 12.09.2006 at about 2:30p.m she commenced the postmortem examination of the dead body of the deceased Ashok Kumar proved a detailed report Ex. PW 15/A. Although I would dwell on the observation in postmortem in detail later on in this judgment, suffice to state that she later on examined the garden axe with handle portion measure 67.2 cm long, 9.9 cm by circumference at the middle and having three visible nodes and three interodes; that metalic blade portion measures 14.8 cm in length, 8cm width near State v. Mithlesh Pandey 20 of 38 21 its cutting edge and the squarish back part measures 5.5 cm x 3.9 cm. She gave an opinion Ex. PW 15/C to the effect that the said axe could have caused the injuries on the body of the deceased.
60. PW18 Dr. V. K. Patra, Sr. Scientific from CFSL Biology. He deposed receiving 35 parcels from 22.09.2006 to 27.09.2006 which were examined by him and he proved detailed report Ex. PW 18/A which I would dwell later on in this judgment.
61. PW19 was V. B. Ramteke, Sr. Scientific Officer from CFSL, New Delhi. He deposed that on 13.10.2006 he received two sealed parcels and one sealed wooden box from the Biology Division and examined the exhibits and made a report Ex. PW 19/A on which I would dwell later on in this judgment.
62. PW22 was Dr. Anjali Sharma from RML Hospital. She deposed about the remarks and handwriting, signatures of Dr. Jitender who had prepared the MLC in regard to examination of the patient accused Mithlesh Pandey which is Ex. PW 22/A.
63. PW43 was Dr. Rajinder Singh, Director, CFSL, CBI, New Delhi. He deposed that on 25.10.2006 he received two sealed parcels from Biology Division of CFSL that were examined by him and he proved his report Ex. PW 43/A.
64. PW44 was Mr. S. K. Singla, Senior Scientific Officer from CFSL, CBI, New Delhi. He deposed that he conducted the serological test of the case exhibits and proved his report Ex. PW 44/A and B in regard to determination of species of origin and blood grouping on the case exhibits.
State v. Mithlesh Pandey 21 of 38
22
Other Witnesses
65. PW35 was Sh. Chandra Shekhar who during the relevant time was the Ld. MM, PHC, New Delhi who deposed that on 08.01.2008 an application for conducting TIP of the case property was moved by Inspector K. G. Tyagi which was marked by his link MM that was fixed for 23.01.2008 and finally TIP proceedings were done on 04.02.2008 in regard to wrist watch that was recovered from the accused and during the TIP proceedings the same was identified by PW Neena Khanna wife of the deceased as belonging to her deceased husband and the TIP proceedings are Ex. PW 35/C. Mobile Call Records
66. PW 25 was Israr Babu, Alternate Nodal Officer from Vodafone Ltd. He produced CDR of mobile Sim no. 9811102814 for the period 01.09.2006 to to 27.10.2006 Ex. PW 25/B belonging to the deceased. He proved the customer application form along with documents Ex. PW 25/A besides Ex. PW 25/A1 to A5 . He also produced CDR of the said mobile for the period 10.08.2006 to 11.09.2006 which is Ex. PW 25/D.
67. PW29 was Sh. Tarun Khanna, Nodal Officer from Bharti Airtel. He produced mobile call record of PW 12 Shyam Sunder Pandey S/o Sh. Kusheshwar Pandey R/o of Village Nawab Ganj, Anchal, Surya Gandha, Distt. Lakhi Sarai, Bihar for the period 01.09.2006 to 30.09.2006 in respect of mobile no. 9931962055 and the relevant documents are Ex. PW 29/A to D. State v. Mithlesh Pandey 22 of 38 23 STATEMENT OF ACCUSED PERSONS
68. On the close of the prosecution evidence, accused was examined in terms of Section 313 of Cr.PC and on putting the incriminating evidence appearing against him, accused denied the case of the prosecution and stated that he has been falsely implicated in this case.
ARGUMENTS
69. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have also perused the relevant record of the case. PROPOSITION OF LAW
70. At the outset, the prosecution case solely rests on circumstantial evidence. The prosecution case in a nutshell is that although there is no direct evidence that accused committed the gruesome murder, the accused had a motive to murder the deceased since the deceased had been harsh upon him and accused after leaving the spot came back to take revenge; that after committing the murder, the accused fled away with the Nokia mobile 6110 set of the deceased besides his wrist watch and two shirts of the deceased and soon after the incident he went missing; that he sold the mobile set to PW 36 Kuldeep Raut and finally nabbed with the stolen wrist watch and the clothes of the deceased. Now, in the case of Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SUPREME COURT 1622, the conditions precedent for basing conviction on circumstantial evidence were laid down as under:
State v. Mithlesh Pandey 23 of 38 24 (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 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 the accused and must show that in all human probability the act must have been done by the accused. Case law discussed. (Paras 152, 153) and a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
71. Another case in point is the case of G. Farishwanath v. State of Karnataka, (2010) 8 SCC 593, where it was reiterated that where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. It was observed that:
Although there should not be any missing links in the cases, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course State v. Mithlesh Pandey 24 of 38 25 of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusions of guilty and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/ are not decisive.
The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone. It must exclude each and every hypothesis suggested by the accused. However, extravagant and fanciful it might be. 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 where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court".(emphasis mine)
72. With the said proposition of law at the back of our mind, let us embark on an exercise for appreciating the evidence on the judicial record.
APPRECIATION OF EVIDENCE ACCUSED WORKING AS SECURITY GUARD - MOTIVE TO COMMIT THE CRIME
73. The prosecution case begins with the direct evidence that the accused was deputed as security guard at 7, Hailey Road, New Delhi on 10.09.2006 and the first circumstance established against him is that the accused had a strong motive to commit the ghastly crime. Mr. Chandan Malik , Ld. Amicus Curiae disputing that the accused was deputed for duties on 10.09.2006, vehemently urged that although IO PW 53 Inspector Satpal Singh conceded in his cross State v. Mithlesh Pandey 25 of 38 26 examination that he had seized the original attendance register from the office of M/s Sterling Security Services Ltd, i.e., the principal employer of the accused, the same was not produced in evidence nor the immediate supervisor of accused Mithlesh Pandey namely Mr. Sagar was examined during the investigation or produced during the trial. Not much can be read in the absence of such evidence since the testimony of PW3 Shiv Khanna does reflect that his deceased father had complained to him at 11:30p.m on 10.09.2006 that security guard Mithlesh Pandey had been drugged by somebody and was misbehaving with him. The fact that accused Mithlesh Pandey was very much present at 7, Hailey Road on 10.09.2006 was corroborated by PW5 Bharat Lal and PW8 Rajesh who were residing in the servant quarters. Further, it is in evidence of PW13 Manoj Sharma besides PW6 Sanjay Kumar and PW11 Satpal Singh Chauhan that accused was very much present at 7, Hailey Road and performing his duty as security guard.
74. On the issue of motive, the testimony of PW13 is uncontroverted to the effect that they reached 7 Hailey Road on receiving a complaint from the deceased and they had a discussion with the deceased who had alleged that the accused was drunk, which wasn't the case, and rather the accused was crying who showed the quality of food that was being given to him by the deceased besides the fact that accused complained to them that deceased used to make him wash the utensils and clean the house and being a Brahmin he was not willing to do the same. If the State v. Mithlesh Pandey 26 of 38 27 evidence of PW13 Manoj Sharma besides PW11 Satpal Singh Chauhan is believed it was at the insistence of the deceased that they took away accused Mithlesh Pandey from the spot and then left him at Kasturba Gandhi Marg at about 12:45a.m.
75. It may be stated that the prosecution has made an attempt to portray the character of the accused Mithlesh Pandey as drug addict relying on the testimony of PW6 Sanjay Kumar, PW7 Sunil Pandey and PW9 Rama Nand Singh that miserably fails( not that it matters) in as much as both PW6 Sanjay Kumar and PW7 Sunil Pandey in their cross examination conceded the fact that they had merely heard that accused was a drug addict but they conceded that they had never shared any room/ accommodation or duties with the accused nor had seen the accused taking any drugs. PW9 Rama Nand Singh rather in his cross examination stated that by saying that accused was a drug addict he meant that accused used to smoke and chew tobacco but he had not seen him consuming such thing. PW13 Manoj Sharma somewhat clinched the issue in favour of the accused who stated that on the date of incident on 10.09.2006 accused Mithlesh was not drunk nor appeared to be under effect of any drug.
76. Anyhow, the testimony of PW5 Bharat Lal and PW8 Rajesh Kumar as well as of PW13 Manoj Sharma brings out that deceased was a hot headed person who used to abuse and pick up quarrels and deceased had been particularly nasty with the accused Mithlesh Pandey. What the prosecution is able to bring to the fore is State v. Mithlesh Pandey 27 of 38 28 that accused Mithlesh Pandey had a probable motive to commit the ghastly crime.
MISSING MOBILE PHONE AND ITS RECOVERY
77. PW3 Shiv Khanna testified that his deceased father was having a Nokia handset 6110 using SIM no. 9811102814. Although he did not say that the mobile phone was missing after the dead body of his deceased father was found at 7 Hailey Road, it comes in the evidence of PW4 Neena Khanna wife of the deceased that besides Nokia 6110 set one pant, one purse, one wrist watch were missing. Mr. Chandan Malik, Ld. Amicus Curiae pointed out that PW53 Inspector Satpal Singh denied that any report of missing articles was made to him either by Smt. Neena khanna or Shiv Khanna wife and son respectively of deceased on 11.09.2006 or 12.09.2006. Anyhow, assuming that the Nokia mobile set of the deceased was missing, the prosecution produced PW12 Shyam Sunder Pandey besides bringing on record that one call was made on 12.09.2013 at 05:47:32 using the stolen/ missing mobile IMEI NO. 490527/10/231274/ 0 from Village Ghacriri PS Surya Garh Distt. Lakki Sarai, Bihar.
78. First thing first, PW12 Shyam Sunder Pandey did not support the prosecution case that the accused used his SIM card no. 9931962055 for making any call to someone from his own mobile set. He rather deposed that accused Mithlesh Pandey took his mobile phone and called someone from his mobile phone. Further the mobile set of PW12 Shyam Sunder Pandey was also not seized State v. Mithlesh Pandey 28 of 38 29 by the police. The call data record Ex. PW 29/B shows that the call on 12.09.2006 was made at 17:47 lasting for about 75 seconds to no.
123. No inquiries were done by the police to find out to whom the accused Mithlesh Pandey had spoken by using the SIM card of PW12 Shyam Sunder Pandey.
79. Prosecution then produced PW36 Kuldeep Raut who testified that sometime in September October 2006, accused approached him as a stranger and informed that his articles had been stolen; that the accused begged for help telling him that he wanted to go to Delhi and did not have any money except a mobile phone; that accused took Rs.450/ from him giving the mobile set Nokia 6110 further telling that he would be back soon to return his money and take his mobile but he did not return back. The police claims that the mobile phone was on surveillance and it was sometime in November 2006 that they found that the missing/stolen mobile phone was in use on SIM card No. 9835407269 that was subscribed by PW36 Kuldeep Raut. The police claims to have approached the PW36 on 04.12.2006 and seized the mobile from him which is Ex. PW 4/2 vide seizure memo Ex. PW 36/A.
80. It is further in the testimony of PW36 that he identified the accused from the photographs Ex. PW 36/B as the person who had sold the mobile instrument to him. I am afraid the testimony of PW36 is totally uninspiring in as much as a glaring lapse was committed by the police in not seizing the call data records of State v. Mithlesh Pandey 29 of 38 30 mobile no. 9835407269 nor the Customer Application Form etc. were seized so as to indicate since when the said SIM card had been activated. PW36 was not forth right as to when SIM card had been activated by him. Although PW36 stated that he had disclosed the police the physical features or the traits of the accused who sold him the mobile, the same does not find any mention in his statement u/s 161 Cr.P.C Ex. PW 36/DB. Further, as pointed out by Ld. Amicus Curiae no public witnesses were joined at the time of recovery / missing mobile Nokia set Ex. PW 4/2 from the witness. MISSING WRIST WATCH AND ITS RECOVERY
81. The prosecution claims that at the time of apprehending the accused Mithlesh Pandey on 18.11.2007, he was found wearing the wrist watch of the deceased Ex. PW 4/3. It was pointed out by Ld. Amicus Curiae that the recovery of the said wrist watch is not indicated/ reflected in the personal search memo of the accused Ex. PW 47/B. The prosecution claims that accused Mithlesh Pandey was apprehended with a jhola containing clothes of the deceased viz. A green coloured full sleeves shirt and a blue coloured Tshirt which were seized vide memo Ex. PW47/C and identified as Ex. P30 and P31 during the testimony of PW54 Inspector K.G.Tyagi. But as rightly pointed out by Ld. Amicus Curiae the said items Ex. P30 & 31 were neither put to PW 3 Shiv Khanna nor to PW4 Neena Khanna son and wife of the deceased respectively so as to identify that the same belonged to the deceased.
State v. Mithlesh Pandey 30 of 38 31 ACCUSED ABSCONDING SOON AFTER THE INCIDENT
82. Another chain of circumstances put forth is that the accused was missing soon after the commission of the crime and he has offered no explanation as to his whereabouts for more than a year after the incident. Undoubtedly, such fact is admissible in evidence as per Section 8 of the Indian Evidence Act as subsequent conduct is a relevant fact and "flight is also an evidence of guilt". However, the prosecution wins no battle here in as much as the case of the prosecution that mobile phone has been put on surveillance falls flat and no iota of evidence has been placed on record that any police officials were sent to the native place of the accused or other places to nab him. No DD entries were proved on the record in this regard as was brought out in the cross examination of PW53 Inspector Satpal Singh and for that matter Inspector K. G. Tyagi PW54.
THE INTERVENING NIGHT OF 10 th AND 11TH SEPTEMBER 2006
83. It may be reiterated that there is no direct evidence that accused Mithlesh Pandey came back to the spot i.e 7 Hailey Road sometime after 12:45 am nor there is any direct evidence that anybody saw him leaving from the spot thereafter during the intervening night on 10th / 11th September 2006 or later during the course of the day. What I find most shocking is that certain apparent vital leads were not followed or examined in this case. Perusal of the call data record of the deceased in respect of mobile no. 9811102814 Ex. PW 25/B reveals that on 10.09.2006 at 23:58:56 State v. Mithlesh Pandey 31 of 38 32 a call was made from mobile of the deceased to a number 9213950860 lasting for 328 seconds, another a call was made from the mobile no. of the deceased at 00:30:01 to mobile no 9811685270 lasting for 130 seconds and the last call was made from the SIM of the deceased at 00:32:49 lasting for 186 seconds to a number 01155331750. The police failed to inquire as to whom such calls were made at those hours. That could have revealed whether deceased was alive till about 3:30 am in the night or not and if any one else was with him.
CAUSE OF DEATH
84. The postmortem report brings out that there were as many as 24 injuries on the body of the deceased in the following nature:
1. both eyes are black eyes
2. face is found deformed with fracture of underlying facial bones into multiple pieces, and fracture dislocations of anterior teeth up 1st premolars in both jaws.
3. Abraded contusion of size 3cm x 1.5 cm situated on the right side face on and above malar prominence.
4. Multiple small abraded contusions and abraded lacerations of skin deep situated over tip and alas of nose.
5. Abraded laceration of seize 2 cm x 1.5 cm x oral cavity deep situated over left supralabial region, 0.5 cm lateral to midline and just above mucocutaneous junction of upper lip through which fracture dislocated left upper canine tooth is projecting out.
6. Lacerated would of size 1cm x 0.1 cm X muscle deep situated on the right side of the lip, in a vertical manner, 1 cm medical to right angle of mouth.
7. 'L' shaped abraded lacerations of size (1.2cm + 1.2cm) x 0.2cm x muscle deep situated on the right check 0.3 cm below and 0.5cm lateral to right angle of mouth.
8. Contused lacerated would of size 2.5cm x 1.5 cm x muscle deep situated on the front of mid part of lower lip.
9. Irregular lacerated would of size 4cm x 1.5 cm x bone deep situated on the lower part of face, mostly on the right side 0.5cm below the lower lip. Adjacent surrounding area is contused.
10. Pinna of right ear is irregularly torn into two pieces at its upper 1/3 and lower 2/3 junction, the tear extending upto 1.5cm behind tragus of right ear.
11. Abraded contusions of size 8 cm x 1 cm situated more or less horizontally on the right lateral aspect of upper part of neck 1 cm below root of right pinna.
12. Squarish shaped abraded contusion of size 6cm x 6 cm situated State v. Mithlesh Pandey 32 of 38 33 on the right side lower part of neck and shoulder blade, 4.5 cm below right mastoid tip.
13. Abraded contusion of seize 6cm x 3 cm situated on the lateral aspect of right knee.
14. Multiple small abraded contusions of sizes varying from 0.5cm x 0.5 cm to 1.5 cm x 0.5cm situated on the front of right knee and upper half of right leg.
15. Multiple, patterned abraded contusions of 'L' shaped of sizes varying from 2cm x 2 cm to 3 cm x 2 situated on the antera medical aspects of left thigh and upper half of left leg associated with swelling and contusions of adjacent surrounding area of left thigh over an area 22cm x 10cm.
16. Patterned rectangular abraded contusion of size 5.5 cm x 4.5cm situated on the front of left side of abdomen, medical prominent angle of the would lying 1.5 cm lateral to midline and 6.5cm above the umblicus.
17. 'L' shaped patterned abraded contusion of size, 3 cm x 2.5 cm situated on the left anterior aspect of abdomen along the anterior axillary line 18.5 cm lateral to the umblicus.
18. 'L' shaped patterned abraded contusion of size, 6 cm x 4.5 cm situated on the left lateral aspect of chest, 15 cm below axillary pit. Pointed angular ends of external injureis no. 17 and 18 are directed upwards.
19. Paterned abraded contusions of size 9cm x 5 cm situated on right anterior aspect of chest 2cm medial to left nipple.
20. Seven 'L' shaped patterned abraded contusions of varying sizes situated on the back of upper aprt of chest over an area 45cm x 10 cm.
21. Two 'H' shaped patterned abraded contusions of sizes 5cm x 4.5cm each situated adjacent to each otehr on the left side back of abdomen, the medical one lying adjacent to middline and 57 cm below occipital protuberence.
22. 'H' shaped patterned abraded contusion of size 5cm x 4.5cm situated on left lateral aspect of abdomen 16 cm abvoe left posterior superior iliac spine.
23. Multiple small abraded contusions situated on the dorsum of left palm or dorsum of right, middle and ring fingers.
24. Contusion of size 10 cm x 6 cm situated on the midpart of antero lateral aspect of left arm, associated with swelling and deformity of left arm, and fracture of shaft of left humerus bone into multiple pieces.
85. Since no valuables were missing from the spot, the manner in which the injuries were inflicted upon the deceased demonstrates that the killer was probably nursing deep hatred for the deceased and inflicted such injuries possible with garden axe Ex. PW 4/1. In this context, it must be indicated that the manner in which the deceased was lying with no clothes on his lower part and the fact State v. Mithlesh Pandey 33 of 38 34 that PW15 Dr. Shrabana Kumar Naik made an observation that during postmortum she found a "colourless thick viscid liquid material of about 1 to 2 ml in or around anus" leads to a probable inference that the deceased was probably sodomized, with or without consent, and in this regard PW15 commented in her report Ex. PW 15/A, it was not possible to give an opinion whether deceased was involved in active or passive homosexual activity but in regard to opinion about cohabition before death, an opinion could be given after necessary test on the preserved swab and semen.
86. It is a glaring lapse on the part of the investigation that slide 1, 2 and 3 i.e. swabs smears of perianal anal penile region were preserved to determine spermatozoa but the same were not sent for forensic analysis. PW15 in her cross examination did say that the colourless liquid material of about 12 ml found in or around anus could be seminal discharge of a human being.
WEAPON OF OFFENCERECOVERY & CHANCE PRINTS
87. The case of the prosecution is that weapon of offence i.e garden axe Ex. PW 4/1 was recovered by PW4 Neena Khanna wife of the deceased when she was cleaning the house on 24.09.2006 and the same was seized vide seizure memo Ex. PW 4/C after preparing its sketch Ex. PW 4/B. Although the recovery of axe in such manner is supported by testimony of PW53 Inspector Satpal besides members of Crime Team, there is more to it than to meet the eyes.
State v. Mithlesh Pandey 34 of 38 35
88. Ld. Amicus Curiae pointed out that the testimony of PW53 Inspector Satpal Singh in his cross examination revealed that the room in which the gruesome murder was committed had not been sealed from 11.09.2006 to 24.09.2006 in a proper manner except for putting a police constables namely PW20 AND PW23 till 13.09.2006. In this regard PW51 testified that no noting had been made in regard to lock and keys of the house that remained with someone or with the police from 11.09.2006 to 24.09.2006. What is most surprising is that though the spot had been thoroughly scanned by members of the Crime Team as well as officials of the CFSL, CBI, New Delhi, they were unable to locate the garden axe Ex. PW 4/1 from the cupboard lying in the same room.
89. Ld. Amicus Curiae here pointed out that the videography of the room shows that there were placed some golf clubs at one corner of he room where the dead body was found and neither the same were examined nor seized during the investigation of this case and PW15 Dr. Shrabana Kumar Naik in her cross examination opined that some of the injuries mentioned in the postmortem could have been possibly inflicted by using a gold stick depending upon its size.
90. It is then in evidence that although chance print were found on the garden axe Ex. PW 4/1, the same were not matched nor tallied with the finger prints of the accused. For that matter, no chance prints of the accused were found from the room or the displaced receiver of the landline phone or the telephone wire.
State v. Mithlesh Pandey 35 of 38 36 DNA EXAMINATION OF BLOOD TRACES AT THE SPOT
91. Much cannot be read in the prosecution case that blood of the deceased was found from the cushion on the chair Ex. P28 that was seized vide memo Ex. PW 3/U where accused used to sit as a security guard as there is nothing to suggest from the FSL report Ex. PW 43/A that blood group 'O' of the deceased was found on the cushion or for that matter DNA profile of the accused with blood group 'A' was found at any place inside the room where the deceased was murdered.
THREATS TO THE DECEASED & PLACE OF OCCURRENCE
92. PW4 Neena Khanna testified that her husband had been receiving certain threats in connection with property in question, which was subject matter of a long pending litigation. She also deposed that certain complaints had already been made to the police, which have been withheld by the IO. The prosecution case is that accused entered the room through a broken jaali of the window shown in the site plan Ex. Pw 52/A at point M is totally uninspiring as neither PW52 Inspector Devender nor PW 53 Inspector were able to give an exact dimension of the jaali that was allegedly removed by the accused to let him inside the room.
93. It is also pertinent to mention here that in the light of fact that deceased was probably sodomized or had indulged in homosexual activity prior to his death, the possibility of accused involved in such act looks dismal as the deceased had been State v. Mithlesh Pandey 36 of 38 37 persistent with PW13 Manoj Sharma and his colleague to take the accused Mithlesh away forthwith.
94. The site plan Ex.PW 52/A of the bungalow would show that it had a boundary wall of hardly 5 ft and the bungalow was surrounded with multi storeyed building on both sides and the possibility of someone else entering and committed the crime after coming to know that the security guard was no longer there cannot be ruled out. Indeed the conduct of the accused in going missing soon after the incident is relevant and raises a strong suspicion against him in view the discussion above such suspicion cannot displace the requirement of proof beyond reasonable doubt so as to hold him guilty in the present matter. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. To my mind, the possibility that there was a third person who committed the gruesome crime cannot be ruled out and the investigating officers at the initial stage made a complete mess of the investigation lacking common sense, logic and vision. FINAL ORDER
95. In view of the discussion made above, the circumstances that have been established by the prosecution on the record although raises suspicious against the accused but are not consistent enough so as to conclusively hold that it was the State v. Mithlesh Pandey 37 of 38 38 accused Mithlesh Pandey who in all probability committed the gruesome crime. The prosecution therefore, fails to prove the guilt of the accused beyond reasonable doubt. Accused Mithlesh Pandey S/o Sh. Sri Kant Pandey is hereby acquitted. His Bail bond is cancelled and surety is discharged. Endorsement on the documents, if any, be cancelled.
96. Before parting with this case, I place my appreciation for the hard work done by Mr. Chandan Malik, Ld. Amicus Curiae for the accused on the record.
97. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA)
TODAY i.e 04.01.2014 ASJ01/PHC/NEW DELHI
04.01.2014
...
State v. Mithlesh Pandey 38 of 38
39
SC No.133/13
FIR NO. 357/06
PS Tilak Marg
U/s 302 of IPC
STATE Vs. MITHLESH PANDEY
04.01.2014
Present : Mr. Salim Khan, Ld. APP for the State.
Mr. Chandan Malik, Ld. Amicus Curiae for the accused. Vide separate judgment of even date, the prosecution fails to prove the guilt of the accused beyond reasonable doubt. Accused Mithlesh Pandey S/o Sh. Sri Kant Pandey is hereby acquitted. His Bail bond is cancelled and surety is discharged. Endorsement on the documents, if any, be cancelled.
File be consigned to Record Room.
(DHARMESH SHARMA)
ASJ01/PHC/NEW DELHI
04.01.2014
State v. Mithlesh Pandey 39 of 38