Delhi District Court
State vs Karamvir @ Kala on 10 June, 2016
SC No. 51/1/14 FIR No. 146/12
P.S Mundka
IN THE COURT OF SH. SANJAY JINDAL, ADDL. SESSIONS
JUDGE WEST - 04, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401R537312012
SC NO. 51/1/14
FIR NO. 146/2012
P.S. : Mundka
U/S : 364/302/201/34 IPC
IN THE MATTER OF
State
(Govt. of NCT of Delhi)
Through Public Prosecutor Delhi
Versus
1 Karamvir @ Kala
S/o Lt. Sh. Kashi Ram,
R/o 193, Village Ghewra,
Delhi.
2 Vikas
S/o Sh. Rambir
R/o 155/138, Village Ghewra, Delhi.
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3 Naveen @ Sunny
S/o Sh. Jagminder Singh
R/o 17, Village Sevli,
District Sonipat, Haryana.
4 Deepak @ Dilli
S/o Sh. Om Parkash,
R/o 331, Village Kanjhawala,
Delhi.
5 Mohd. Faizan @ Nanhe
S/o Sh. Usman Ahmed @ Bhoora
R/o H327, JJ Colony, Sawda Delhi.
6 Mohd. Sanu
S/o Sh. Mukhtayar Khan @ Cheeta,
R/o H179, JJ Colony, Sawda, Delhi.
7 Rohit
S/o Sh. Ramesh
R/o M399, JJ Colony, Sawda, Delhi.
............. Accused Persons
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Date when committed to the : 17.11.2012
court of Sessions
Date of conclusion of : 07.06.2016
final arguments
Date of final Judgment. : 10.06.2016
Final Judgment : Acquitted
J U D G M E N T
1 Brief facts, as per case of the prosecution, are that on the
intervening night of 30/31.07.2012 a PCR call was received at P.S
Mundka vide DD No. 05B regarding kidnapping/abduction of a person,
which was assigned to ASI Virender (PW22). ASI Virender reached at
the spot and found a Tata Magic no. DL2W5262 at the spot i.e near
Ghevra Fatak. IO and other staff also reached there. On inquiry about the
said Tata Magic, it was found that the same was being plied by deceased
Sandeep @ Bittu (since deceased). The witness namely Sanjeet (PW10)
told the police that he and his brother Sandeep @ Bittu were operating the
Gramin Sewa vehicles and he suspected that his brother Sandeep @ Bittu
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was abducted by accused Karamvir @ Kala, Rohit and Nanhe @ Mohd.
Faizan as they had an altercation with his brother on earlier occasion.
Subsequently, the dead body of Sandeep @ Bittu was recovered within the
jurisdiction of P.S Sadar Bahadurgarh, Haryana. Names of other accused
persons namely Vikas, Naveen @ Sunny, Deepak @ Dilli and Mohd. Sanu
were also surfaced during investigation as associates of accused Karamvir
@ Kala. On the basis of investigation police reached at a conclusion that
accused Karamvir @ Kala and his other associates had abducted and
murdered Sandeep @ Bittu because of professional rivalry. During
investigation of case, accused persons were arrested and after completion
of investigation, chargesheet was filed.
2 After consideration, on 10.04.2013, charge for the offences
U/s 364/302/201/34 IPC was framed against accused persons namely
Karamvir, Vikas, Naveen, Deepak, Mohd. Faizan and Mohd. Sanu and
since accused Rohit was arrested later on, a charge for the offences U/s
364/302/201/34 IPC was framed against him on 16.07.2013.
3 At the time of trial, prosecution has examined following
witnesses;
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PW1 HC Sudesh PW2 Smt. Shakuntla
PW3 Ct. Jagat Singh PW4 Mr. Rajesh @ Tany
PW5 Sh. Dharambir Singh PW6 ASI Ajit Singh
PW7 HC Udham Singh PW8 HC Sanjeev Kumar
PW9 Sh. Rakesh Kumar Jha PW10 Mr. Sanjeet
PW11 HC Ram Kishan PW12 Insp. Jasvir Singh
PW13 Mr. Jaivir PW14 Ct. Sunil Kumar
PW15 ASI Kailash Chander PW16 Sh. Jasmer Dahiya
PW17 ASI Ranbir Singh PW18 Mr. Israr Babu
PW19 HC Shashi Kala PW20 HC Ashok Kumar
PW21 HC Hari Singh PW22 Retd. SI Virender
Kumar
PW23 Ct. Vedpal PW24 SI Amrinder
PW25 Ct. Balbir Singh PW26 HC Narender Singh
PW27 Dr. Kuldeep Panchal PW28 HC Jitender Malik
PW29 HC Sudesh PW30 Mr. Ajay Kumar
PW31 Inspr. Mahesh Kumar PW32 SI Dinesh Kumar
PW33 D.S. Paliwal PW34 HC Kuldeep Singh
PW35 ASI C.M. Meena PW36 SI Gulshan Nagpal
PW37 ACP Ramesh Chander PW38 Sh. Sandeep Singh
(Ex.SI)
PW39 SI Vishal Chaudhary PW40 Inspr. Raj Kumar
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4 After completion of prosecution evidence, the statements of
accused persons were recorded u/s 313 Cr.P.C on 25.05.2016. All
incriminating material was put to them. All the accused persons denied
the case of prosecution in general and claimed false implication. Accused
persons namely Karambir @ Kala, Md. Faizan @ Nanhe, Md. Sanu and
Rohit opted to not to lead defense evidence. Accused persons namely
Deepak @ Dilli, Vikas, Naveen @ Sunny opted to lead defense evidence
and accused Deepak @ Dilli was examined as DW1 on their behalf.
5 I have heard Ld. APP for the State and ld. counsel for the
accused persons and carefully perused the record in light of submissions
made before me.
6 It is argued on behalf of State that case against all the accused
persons has been duly proved on record beyond any reasonable doubts.
Further that discrepancies/contradictions if any in the case of prosecution
are minor and natural. Further that such contradictions are bound to occur
in lengthy crossexamination of prosecution witnesses conducted by the
ld. defense counsel over a period of time on different dates. It is submitted
that it is established beyond doubts that accused persons had kidnapped
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Sandeep @ Bittu and murdered him. Further that, the disclosure
statements made by the accused persons followed by the recoveries
effected pursuant thereto have established on record all the vital links and
the case against all the accused persons has been duly established on
record.
7 On the other hand, it is submitted on behalf of the accused
persons that the case of prosecution is full of discrepancies and
contradictions and same is based on false evidence. The credibility of the
witnesses has been challenged and it is submitted that most of the so
called independent/public witnesses have turned hostile during trial. It is
argued that the case is based on circumstantial evidence and the
prosecution has not been able to establish all the vital links to connect the
accused persons with the alleged offence. It is argued that there is total
lack of evidence to show motive on part of any of the accused persons and
evidence to show that the deceased was last seen with the accused persons.
Further that no incriminating material has been genuinely recovered from
any of the accused persons and the alleged recoveries are planted ones.
Further that, there is no reliable material to show that the deceased
Sandeep has been murdered by the accused persons. Further that the case
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of the prosecution regarding alleged destruction of evidence by the
accused persons has also remained unproved for want of reliable evidence.
It is further argued that the circumstances leading to arrest of the accused
persons and recording of their disclosure statements are highly doubtful. It
is also argued that prosecution has failed to prove its case against the
accused persons beyond reasonable doubts and therefore the accused
persons are entitled to be acquitted. Ld. Counsel for accused persons has
relied upon judgments of Hon'ble Supreme Court in State through CBI vs.
Mahender Singh Dahiya, 2011 (1) RCR (Criminal) 706, Mustkeen @
Sirajudeen vs. State of Rajasthan, 2011 (3) RCR (Criminal) 766 and
Prakash vs. State of Karnatka, 2014 (3) RCR (Criminal) 744 in support of
his contentions.
8 Before proceeding further, it will not be out of place to have a
reference to the statements of the witnesses examined by prosecution and
documentary evidence brought on record.
PW1 HC Sudesh is Duty Officer who tendered present FIR
as Ex.PW1/A, her endorsement on rukka as Ex.PW1/B, certificate u/s
65B Evidence Act as Ex.PW1/C and DD No. 15A as Ex.PW1/D.
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PW2 Smt. Shakuntla is mother of deceased and she
deposed that on 24.08.2012, she visited FSL Office, Rohini, where her
blood sample were taken.
PW3, Ct. Jagat Singh is Photographer Mobile Crime Team
and he deposed that on 03.08.2012, he took four photographs of Gramin
Sewa and tendered the photographs as Ex.PW3/A1 to A4. He further
tendered the negatives of said photographs as Ex.Pw3/A5 to A8.
PW4 Rajesh @ Tany is stated to be an eyewitness of
abduction and he deposed that he is a truck driver by profession and on the
intervening night of 30/31.07.2012, he alongwith Surender went to
Ghewra, FCI Branch and parked his truck in front of FCI, meanwhile
Bittu, who was known to him also came there in his Gramin Sewa as he
was also a driver. He further deposed that they brought food from the
hotel and they all had food while sitting in front of FCI between 12.00
midnight to 02.00 am. Thereafter, he came back to his truck and he lied
down for sleep. After 23 minutes, he heard scream and got up. He saw
that Magic driven by Bittu was standing in between the railway phatak
and he was being taken by 34 persons towards Ghewra. He further
deposed that they took Bittu in a car which was also stationed near the
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Magic. He further deposed that he could not see either the persons who
had taken away Bittu or number of their vehicle. Thereafter, he had woken
up his friend Surender who was sleeping in another truck and told him
about the incident and then they made a call at 100 number.
PW5 Sh. Dharambir Singh is a witness regarding recovery
of dead body and he deposed that he was working at pump house, GWS
Nehar, Munda Khera, Badli, Haryana as pump man and remained on his
duty round the clock for 15 days in the month at the pump house. He
further deposed that on 02.08.2012 at about 07.0008.00 am, he found a
dead body in the drain no. 8 of the above said Nehar and thereafter he
informed PP Badli, Haryana. Police officials visited the spot and recorded
his statement. The dead body was taken away by the police.
PW6 ASI Ajit Singh is Incharge Mobile Crime Team and
he deposed that on 19.08.2012, he alongwith his team reached at Badarpur
Metro Station where he inspected car bearing no. DL 4CAP6462 and
seized several articles from the said car. He tendered his detailed report as
Ex.PW6/A.
PW7 HC Udham Singh is also a member of Mobile Crime
team and he deposed that on 19.08.2012, he also inspected the car bearing
no. DL4CAP6462 and lifted three chance prints from there.
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PW8 HC Sanjeev Kumar is photographer Mobile Crime
team and he deposed that on 19.08.2012, he took seven photographs of car
and tendered the photographs as Ex.PW8/A1 to Ex.PW8/A7 and he
further tendered the negatives as Ex.PW8/B1 to PW8/B7.
PW9 Sh. Rakesh Kumar Jha is the attendant of Badarpur
Metro Parking and he deposed that he had resided in Delhi for about six
months i.e from February 2012 till end of August 2012 and used to stay at
the room of one Ganesh Jha. He further deposed that he used to work as
Parking Attendant at Badarpur Metro Station Parking. On 19.08.2012,
some police officials, 1415 in number, of P.S Mundka came to Badarpur
Metro Parking and had shown him one car parking slip i.e Ex.PW9/P1
and police had asked him whether the said car parking slip is of their
parking. The said parking slip was of vehicle no. 6462 of white colour i
10. He further deposed that he did not remember the complete registration
number of the car. Further that he told the police officials that the said slip
belonged to their parking but the said slip was not issued by him. He
further deposed that the abovesaid i10 car was possessed by the police
from Badarpur Metro parking and they took the car with them.
PW10 Mr. Sanjeet is brother of deceased and complainant
in this case. During his examination in court he deposed that he was
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running transport business by plying Gramin Sewa on route Nangli to
Mazra and Khanjawala. His brother Sandeep @ Bitto, since deceased, was
also driving the Gramin Sewa vehicle no. DL 2W5263 and the said
vehicle was taken by his brother on contract from the owner of vehicle. He
further deposed that on the intervening night of 30/31.07.2012, he
alongwith his brother Sandeep and his helper Naveen reached at Nangloi
after releasing their vehicle from ACP office Rampura, Delhi. They
reached Nangloi at about 10.30 pm on 30.07.2012. Thereafter, he left
Nangloi for his house leaving behind his brother Sandeep and Naveen
there and reached at his house at Ghewra at about 11.3012.00 midnight.
He further deposed that at about 06.0006.30 am on 31.07.2012, 45 police
officials from P.S Mundka came to his house and they told him that the
Gramin Sewa bearing registration no. DL2W5263 is lying abondend near
railway fatak Ghewra Mor. Thereafter he alongwith those police officials
reached at Ghewra railway fatak and he found the vehicle mentioned
above parked there on road. He further deposed that police had made
inquiries about his brother Sandeep and he told the police officials that a
quarrel had taken place between his brother Sandeep and Karambir @
Kale, Nanhe and Rohit about two days prior to that day, however, he had
no knowledge if any action was taken by the police regarding the said
quarrel or not. He further told the police officials that he had suspicion
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upon Karambir @ Kale, Nanha and Rohit that they might have kidnapped
his brother Sandeep due to enmity regarding the previous incident
mentioned above. Further that accused Karambir @ Kale, Nanha and
Rohit are known to him prior to the incident as they were also plying the
Gramin Sewa vehicles on the same route. He tendered his statement
Ex.PW10/A. He further deposed that thereafter, he alongwith police
officials including IO went to the house of three accused persons but they
were found absconding from their houses. Thereafter, IO prepared site
plan of the place where the vehicle was found parked and thereafter the
Tata Magic vehicle mentioned above was brought to P.S Mundka by the
IO. He further deposed that the Tata Magic was checked by IO in his
presence and one Chappal of his brother was found inside the Tata Magic
and the said Chappal was seized by IO vide memo Ex.PW10/B. He
further deposed that the Tata Magic was also seized by IO vide memo
Ex.PW10/C and IO recorded his statement in that regard. He further
deposed that on 03.08.2012, he alongwith his family members and
relatives went to PGI Rohtak where he identified the dead body of his
brother Sandeep. He further deposed that police had shown him his voting
Icard and original permit of the Gramin Sewa bearing no. DL2W5263
and they told him that these documents have been recovered from the
cloths worn by his deceased brother Sandeep at the time of conducting
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postmortem. He further deposed that he received the dead body of his
brother vide memo Ex.PW5/B. He further deposed that on 13.08.2012, he
alongwith Jaibeer @ Binto (PW13) joined investigation of this case with
IO and other staff and left Delhi in search of accused persons and reached
Chhatisgarh on 14.08.2012 by train. He further deposed in detail about the
proceedings carried out by IO SI Dinesh Kumar in his presence. He
tendered arrest memo and personal search of accused Karambir @ Kala as
Ex.PW10/E & Ex.PW10/F respectively. He further tendered arrest
memo and personal search of accused Deepak @ Dilliwala as Ex.PW
10/G & Ex.PW10/H respectively. He further tendered disclosure
statement of accused Karambir @ Kala as Ex.PW10/J. He further
tendered arrest memo and personal search of accused Naveen @ Sunny as
Ex.PW10/L & Ex.PW10/M respectively. He further tendered arrest
memo and personal search of accused Vikas as Ex.PW10/N & Ex.PW
10/O respectively. He further tendered the seizure memo of key and
parking slip as Ex.PW10/P. He further deposed that on 19.08.2012, he
alongwith Jaiveer, accused persons namely Deepak @ Dilliwala,
Karambir @ Kala, Vikas and Naveen @ Sunny left the police station
Mundka with police officials at about 08.0008.30 am. He and Jaiveer
were in the car of Jaiveer while police officials and accused persons were
in government vehicle of the police station. Thereafter, all accused
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persons mentioned above led them to Pulia of Hudda Canal and thereafter
led them towards Kaccha rasta by the side of canal and pointed out the
place where they committed murder of his brother Sandeep and thrown the
dead body in the said canal. He tendered pointing out memo in that regard
as Ex.Pw10/Q. He further tendered the pointing out memo Ex.PW10/R
regarding the place where accused persons threw weapon of offences. He
further deposed tender pointing out memo Ex.PW10/S regarding the
place where accused persons threw their wearing clothes. He further
tendered seizure memo of seat cover as Ex.PW10/T. He further deposed
that thereafter accused persons led them to metro parking Metro Station
Badarpur, Delhi where accused persons pointed out one i10 car bearing
no. 6462. He further deposed in detail about the proceedings conducted by
police officials there in his presence. He also identified the case properties
recovered in his presence.
PW11 HC Ram Kishan is a witness from PP Sadar Badli,
P.S Sadar Bhadurgarh, Haryana. He deposed that on 03.08.2012 on the
instruction of PSI Jasvir Yadav, he removed the dead body of the deceased
from the spot to PGI Rohtak, where postmortem was conducted by the
doctors. He further deposed that during postmortem, two Icards and one
permit were found in the pocket of wearing pant of the deceased and the
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same were removed by the doctors. He further deposed that after
postmortem, doctors had handed over to him some sealed parcels, sample
seal and Icards and permit and he deposited the same to Malkhana P.S
Sadar Bahadurgarh, Haryana.
PW12 Inspr. Jasvir Singh deposed that on 03.08.2012, he
received a phone call from one Dhramvir Singh regarding one dead body
inside drain no. 8 and thereafter he reached at the spot. He further
deposed that the dead body was in decomposed condition. Thereafter, he
called FSL team at the spot who reached there and inspected the dead
body. He called a private photographer who took the photographs of the
dead body. He further deposed that he tried to establish the identity of
deceased by asking public persons but identity of deceased could not be
established till that time. He further deposed that thereafter he conducted
inquest proceedings and sent the dead body to General Hospital, Bahadur
Garh and from there, the dead body was sent to PGI Rohtak for
postmortem. He further deposed in detail about the different steps taken
by him in respect of proceedings carried out by him in this case.
PW13 Mr. Jaivir is a public witness in this case. During his
deposition in court, he deposed that he is doing transport business and
have four vehicles. He further deposed that he did not remember month
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and year but it was 30th of the month about two years back, he had gone to
P.S Mundka to take his vehicles from there. Sanjeet S/o Sh. Ajit Singh met
him there and he was already known to him as he was also in transport
business in Ghevra. He (Sanjeet) told him that his brother had expired.
Thereafter ASI Gulshan Singh obtained his signature on some papers in
the police station Mundka. He further deposed that he did not know
anything else about this case. None of the accused persons in this case was
arrested in his presence by the IO nor anything was recovered by the IO in
his presence. He further deposed that he never accompanied the police to
any other state in respect of investigation of this case. He further deposed
that police had not recorded his statement in this case. Since the witness
was resiling from his previous statement, he was crossexamined by Ld.
Addl. PP but despite detailed crossexamination, he has not supported the
case of prosecution to any extent.
PW14 Ct. Sunil Kumar is DD writer P.S Mundka and
deposed that on the intervening night of 30/31.07.2012, he recorded DD
No. 5B and tendered the same as Ex.PW14/A.
PW15 ASI Kailash Chander is Duty Officer P.S Mundka
and he deposed that on 03.08.2012, he recorded DD No. 20A and tendered
the same as Ex.PW15/A.
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PW16 Sh. Jasmer Dahiya is owner of vehicle no. DL 2W
5263 and he deposed that he had given his Tata Magic vehicle to Sandeep
(since deceased) 23 months prior to the incident. He further deposed that
at the time of the present incident the said Tata Magic was in possession
of Sandeep. He further deposed that police had seized the said vehicle and
therefore, he got released the said vehicle on Superdari vide
superdarinama Ex.PW16/A. He also tendered the RC of said vehicle as
Ex.PW16/B.
PW17 ASI Ranbir Singh deposed that on 28.07.2012, he
was posted at P.S Nangloi and at about 07.30 pm, when he was standing at
the main gate of police station, two boys came to him and one of them
revealed his name as Karambir S/o Lt. Sh. Kashi Ram and told him that he
is running a Gramin Sewa and sometime prior to his reaching at the police
station, he (Karambir) was beaten by several persons including Bintu and
Bittu and told that he knows only Bittu and Bintu and not other persons
involved in the quarrel. He further deposed that Karambir also told him
that he had received some internal injury due to the beatings given by the
above mentioned persons and he is feeling pain in his body. He further
deposed that he (PW17) sent Karambir alongwith Ct. Kuldeep to SGM
hospital Mangol Puri for medical examination where doctor asked patient
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Karambir to come to hospital on next day for opinion. Thereafter, he (PW
17) kept the matter pending for inquiry and asked Karambir to come to
police station on the next day. Thereafter, Karambir did not visit the police
station and he also did not approach the doctor in OPD in SGM hospital
for any opinion. He further deposed that Karambir had not given any
statement to him at that time regarding the said incident stating that he
wanted to consult someone before giving any statement. Further that later
on he (PW17) came to know that the Karambir had committed murder of
one Bittu and he is in judicial custody. He further deposed that he handed
over the MLC of Karambir to IO of the present case on 11.10.2012.
PW18 Israr Babu is Nodel Officer, Vodafone and he
produced and tendered the record pertaining to mobile no. 8860928886.
PW19 HC Shashi Kala is a witness from CPCR, PHQ and
she tendered the PCR from as Ex.PW19/A
PW20 HC Ashok Kumar is MHC(M) P.S Mundka and he
deposed in detail about the different entries made by him on different
dates in respect of present case.
PW21 HC Hari Singh deposed that on 24.08.2012, he
alongwith Ct. Vedpal took case property pertaining to present case
including i10 from MHC(M) and taken to FSL, Rohini with the help of
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private crain. He further deposed that car was examined there and
thereafter they brought the said car to the P.S and deposited there.
PW22 Retd. SI Virender Kumar is initial IO of this case
who on receipt of DD No. 5B reached at Ghevra Railway Fatak, where he
found one Tata Magic bearing no. DL2W5263 parked there. He further
deposed that after his reaching there, within ten minutes, Inspr. Ramesh
Chander the then SHO PS Mundka alongwith his staff also reached there.
He further deposed that one Sanjit reached at the spot and he recorded his
(Sanjit's) statement and prepared rukka Ex.PW22/A and sent Ct. Balbir
for registration of FIR. He further deposed that as per directions of SHO,
after registration of case, further investigation was assigned to SI Gulshan
Nagpal. He also deposed about the proceedings carried out by SI Gulshan
Nagpal in his presence.
PW23 Ct. Vedpal deposed that on 24.08.2012 he took case
property including i10 car from the Malkhana and deposited the same to
FSL Rohini. He further deposed that due to some queries raised by the
official concerned, some exhibits could not be deposited in the FSL and
therefore, he took back the same at P.S Mundka and deposited the same in
Malkhana. He further deposed that on 27.08.2012, on the direction of IO,
he deposited four sealed parcels alongwith three sample seals to the FSL
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after taking them from MHC(M).
PW24 SI Amrinder is Incharge Mobile Crime team and he
deposed that on 03.08.2012, he alongwith his team reached at P.S Mundka
where they inspected Tata Magic bearing no. DL 2W5263. He tendered
his detailed report as Ex.PW24/A.
PW25 Ct. Balbir Singh deposed that on 30.07.2012, he
accompanied ASI Virender to the spot after receipt of DD No. 5B. He
further deposed about registration of present FIR and handing over of FIR
and rukka to SI Gulshan Nagpal.
PW26 HC Narender Singh deposed that on 13.08.2012, he
joined investigation in the present case alongwith Sanjit, Jaibir, SI Dinesh
Kumar and other police officials and went to village Mattra, Tehsil,
Dhamda, P.S Nandini, District Durg, Chhatisgarh. He deposed in detail
about the proceedings carried out by SI Dinesh in his presence.
PW27 Dr. Kuldeep Panchal deposed that on 03.08.2012, he
conducted postmortem on the body of unknown male person vide
postmortem report no. 12/8/8 dt. 03.08.2012. He tendered the detailed
postmortem report as Ex.PW27/A. He further tendered his endorsement,
on application filed by IO with request to review the PM report regarding
time since death, as Ex.PW27/B.
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PW28 HC Jitender Malik is a witness from P.S Kanjhawala
and he deposed in detail about DD No. 23A (regarding kidnapping of
Rohit), 24A (regarding missing of Sandeep) & 68B (regarding
proceedings carried out in DD No. 23A & 24A) and tendered the same
DDs as Ex.PW28/A, Ex.PW28/B & Ex.PW28/C respectively.
PW29 HC Sudesh is Duty Officer P.S Mundka and tendered
DD No. 14A (about arrest of accused Rohit) dt. 07.03.2013 as Ex.PW
29/A.
PW30 Mr. Ajay Kumar is Nodel Officer, Bharti Airtel and
he produced and tendered the record pertaining to mobile no. 9896507848.
PW31 Inspr. Mahesh Kumar tendered two scaled site plan
as Ex.PW31/A & Ex.PW31/B.
PW32 SI Dinesh Kumar deposed that on 04.08.2012, on the
direction of SHO, he alongwith Sanjit went to PGI rohtak where dead
body of deceased Sandeep was received by Sanjit from the mortuary of
said hospital. He further collected inquest paper and other relevant
documents from P.S Bahadurgarh. He further deposed that on 13.08.2012
on the instruction of SHO, he alongwith HC Narender, Ct. Parveen, Ct.
Vinod, Ct. Subhash, brother of deceased Sanjit and his friend namely
Bintu went to District Durg Chhatisgarh by train and they reached there on
State vs. Karamvir @ Kala & Ors. Page No. 22/52
SC No. 51/1/14 FIR No. 146/12
P.S Mundka
14.08.2012 where they inquired and came to know that Arun who is
resident of Kanjhawala, Delhi has agriculture land in the village Matra,
P.S Nandni, Durg. Thereafter on 15.08.2012 they reached at agriculture
land of Arun from where he arrested accused Karambir vide arrest memo
Ex.PW10/E. He further deposed in detail about the proceedings carried
out by him during and after arrest of accused persons namely Karambir,
Deepak, Sunny and Vikas and tendered the relevant documents. He further
deposed that after taking transit remand of accused persons, they reached
Delhi on 18.08.2012 and handed over the accused persons to SHO
Mundka and deposited the case property in Malkhana.
PW33 D.S. Paliwal, Senior Scientific Assistant, Biology,
DNA FSL, Rohini deposed that in the present case, the exhibits were
received in FSL on 24.08.2012 and 27.08.2012. Further that after
examination of the exhibits, he prepared his detailed report Ex.PW33/A.
He further deposed that he concluded that Smt. Shakuntla is the biological
mother of deceased Sandeep. He further proved his seizure memo as
Ex.Pw33/B. He also identified the exhibits.
PW34 HC Kuldeep Singh is a witness from P.S Vasant
Kunj and he deposed about arrest of accused Rohit on 06.03.2015 in
another case and tendered the disclosure statement of accused Rohit as
State vs. Karamvir @ Kala & Ors. Page No. 23/52
SC No. 51/1/14 FIR No. 146/12
P.S Mundka
Ex.PW34/A.
PW35 ASI C.M. Meena is also a witness from P.S Vasant
Kunj and deposed about the arrest of accused Rohit.
PW36 SI Gulshan Nagpal is subsequent IO of this case.
During his deposition in court, he deposed in detail about the different
steps taken by him during investigation of this case.
PW37 ACP Ramesh Chander is also IO of this case. He
conducted investigation in this case on different dates and deposed in
detail about the proceedings carried out by him during investigation of this
case. He after completion of investigation filed chargesheet in the court.
PW38 Sh Sandeep Singh (Ex.SI) is a witness from P.S
Kanjhawala who deposed about DD No. 13 A & 19 A both dt. 31.07.2012.
PW39 SI Vishal Chaudhary is a witness from P.S Vasant
Kunj and he deposed on 06.03.2013, he arrested accused Rohit and FIR
No. 90/13 was registered in that regard.
PW40 Inspr. Raj Kumar deposed that on 15.02.2013, he
collected DNA finger print report from the MHC(M) and filed before the
concerned court on 04.03.2013. He further deposed about the arrest of
accused Rohit in present case and further proceedings/investigation
carried out by him in respect of accused Rohit.
State vs. Karamvir @ Kala & Ors. Page No. 24/52
SC No. 51/1/14 FIR No. 146/12
P.S Mundka
Appreciation of Evidence
9 The case of the prosecution in nutshell is that accused Karamvir
@ Kala and his other associates/coaccused had abducted and murdered
the deceased Sandeep @ Bittu due to professional rivalry. The case of
the prosecution is based on circumstantial evidence and admittedly there is
no ocular and direct evidence collected by the investigating agency to
substantiate the allegations against the accused persons. The law relating
to circumstantial evidence is well settled that the circumstances from
which the inference of guilt is to be drawn against the accused persons
should be fully established and the circumstances should be of conclusive
nature and the facts established by the prosecution should be consistent
only with the hypothesis of guilt of the accused and the circumstances
established should be incompatible with the innocence of accused and the
chain of evidence should be complete so as to show that in all
probabilities the offence must have been done by the accused. For
securing a conviction on circumstantial evidence, the prosecution must
prove its case by cogent, reliable and admissible evidence and each
circumstance must be proved like another fact.
State vs. Karamvir @ Kala & Ors. Page No. 25/52
SC No. 51/1/14 FIR No. 146/12
P.S Mundka
10 The Hon'ble Supreme Court has laid down following five
tests to be satisfied in a case based on circumstantial evidence in the case
of Sharad Birdhi Chand Sarda vs. State of Maharastra (1984) 4 SCC
116.
1.The circumstances from which the conclusion of guilt is to be drawn should be fully 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 State vs. Karamvir @ Kala & Ors. Page No. 26/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka probabilities, the act must have been done by the accused.
11 In the present matter, the prosecution has relied upon different circumstances like motive, recoveries and conduct of the accused persons to prove the case against them. The different circumstances relied upon by the prosecution shall be considered separately alongwith other important issues involved in the case.
MOTIVE 12 The first question which comes for adjudication is whether there was any motive on part of accused/accused persons for committing the alleged crime.
In a case based on circumstantial evidence, motive is an important factor. In the present case, the prosecution has come out with a specific case qua motive on part of accused Karamvir @ Kale to eliminate the deceased Sandeep @ Bittu. The case of the prosecution is that accused Karamvir @ Kale had professional/business rivalry with deceased Sandeep @ Bittu as both of them used to ply Gramin Sewa vehicles on the State vs. Karamvir @ Kala & Ors. Page No. 27/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka same route. It is further case of the prosecution that few days before the date of incident i.e on 28.07.2012 accused Karambir @ Kala was beaten by Sandeep @ Bittu and others at Nangloi Chowk when he was driving his Gramin Sewa vehicle no. DL2W3839 and they also threatened him for future also. He reported the matter at P.S Nangloi and was also got medically examined. Further that accused Karambir @ Kale told about this incident to his friends/staff namely Rohit, Nanhe, Vikas, Deepak @ Dilli and Shanu Khan etc. and they all decided to take revenge.
13 So far as motive is concerned, the testimonies of PW10 Sanjeet, the brother of the deceased, PW13 Jaiveer @ Bintu and PW17 ASI Ranbir Singh of P.S Nangloi are relevant. PW10 has deposed that he had told the police officials that a quarrel had taken place between his brother Sandeep and Karambir @ Kale, Nanhe and Rohit about two days prior to the present incident and raised suspicion upon those persons. This witness has not given any specific details of the incident and any action taken by the police in respect of the said incident. So far as PW13 Jaiveer @ Bintu is concerned, he has not supported the case of prosecution on this aspect and has denied the specific suggestion given to him by the Ld. Addl. PP. The third witness i.e PW17 ASI Ranbir Singh deposed that on State vs. Karamvir @ Kala & Ors. Page No. 28/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka 28.07.2012 when he was present at P.S Nangloi, at about 07.30 pm, two boys came to him and one of them revealed his name as Karambir who told that he was beaten by several persons including Bittu and Bintu. Further that said Karmbir was sent to SGM hospital for medical examination where he was asked to come on the next day for opinion. Further it is deposed by PW17 that he kept the matter pending for inquiry and asked Karambir to come to police station on next day but he did not visit the police station nor he approached the concerned doctor at SGM hospital. It is also stated by PW17 that said Karambir had not given any statement to him regarding the incident stating that he wanted to consult someone before giving any statement. During his crossexamination, the PW17 admitted that the said Karambir had not told the full names, fathers name or addresses of the persons referred by him (as assailants). Apart from the above mentioned material there is no other evidence to prove the alleged incident dt. 28.07.2012 to show the motive on part of the accused Karambir or his associates. Testimony of PW10 and PW17 are very general in nature and there is total lack of specifications. PW10 has actually told nothing about the said incident and his statement is based on hearsay as he has not claimed to be an eyewitness of the said incident. Statement of PW17 is also not of much help as no concrete steps have been taken at P.S Nangloi about the said incident. The names and other State vs. Karamvir @ Kala & Ors. Page No. 29/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka particulars of the assailants are not clear from the testimony of PW17. No statement was given by accused Karambir on that day as stated by PW17 and he even did not approach the concerned hospital for opinion. So, it cannot be said that accused Karambir was actually beaten by deceased Sandeep @ Bittu on 28.07.2012. In view of such facts and circumstances, it cannot be said that the prosecution has proved the motive on part of any of the accused persons.
14 Since, the prosecution has put forward a case of motive on part of accused persons, they were duty bound to prove the same and in absence of proof of the same, serious doubts are bound to be raised against case of prosecution.
CALL DETAIL RECORD 15 The prosecution has relied upon the call details of four mobile numbers to show the link between the accused persons interse and to show the events taken place just before and after the incident. The mobile number 8860928886 is stated to be mobile number of Karambir @ Kala and it is stated that there were number of calls on this mobile phone with State vs. Karamvir @ Kala & Ors. Page No. 30/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka mobile number 9210797960 pertaining PW13 Jaiveer @ Bintu. It is further the case of the prosecution that accused Deepak @ Dilli was using the mobile no. 8587888681 and the location of the last call of the concerned date at 12.53 night is at Rai (Sewli). Further, it is stated that accused Sanu Khan was using the mobile no. 8860371771 and that the location chart corroborates the prosecution case. It is further contended that accused Naveen @ Sunny was using the mobile no. 9896507848 and there were regular calls on the phone number 9210797960 on the intervening night of 30/31.07.2012 as well as on the mobile of accused Deepak. The prosecution has examined PW18 Mr. Israr Babu and PW30 Mr. Ajay Kumar, the Nodal Officers of Vodaphone and Bharti Airtel.
16 In this regard, it is to be noticed that there is no phone call record of mobile no. 9210797960 pertaining to PW13 Jaiveer @ Bintu, on which threatening calls were allegedly received, has been proved on record. Even it is not proved on record that said mobile phone was owned by PW13 at the relevant time. PW13 has not supported the case of prosecution on any material fact when examined in court. In absence of any such record, the very basic contention of the prosecution regarding conversation of the accused persons with the PW13 has remained State vs. Karamvir @ Kala & Ors. Page No. 31/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka unproved. So far as the mobile numbers, allegedly being used by the accused persons are concerned, the details of the said phones are not conclusive to reach at a conclusion regarding interaction between the accused persons at the relevant time. Further, the mobile phones allegedly being used by accused Karambir @ Kala, Sanu Khan and Naveen @ Sunny are not in their names and there is no evidence to show that said mobile numbers were actually being used by the said accused persons on the date of incident. In such circumstances, the evidence led by the prosecution regarding the phone call details is of no use for the purpose of proving the allegations against the accused persons.
RECOVERIES 17 The prosecution has relied upon several alleged recoveries effected in pursuance to the disclosure statements made by the accused persons, as incriminating circumstances.
18 It is case of prosecution that the alleged crime was committed by the accused persons while using the i10 car no. DL 4CAP6462 pertaining to accused Karambir which is in the name of his mother Smt. State vs. Karamvir @ Kala & Ors. Page No. 32/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka Chandtari. It is alleged that after heated arguments, the deceased Sandeep @ Bittu was abducted in the said car and taken at Huda Canal at the intersection of Village Bupania and village Sahapur in Haryana. They brought out Sandeep from the car, hit him with rod, hockey and sticks. When he became unconscious, accused Mohd. Faizan @ Nanhe cut his throat with knife and thereafter the dead body was thrown in the canal. It is further case of the prosecution that the hockey, rod and sticks were thrown by the accused persons after crossing village Bupania. Thereafter accused persons went to Ballabgarh vide Badli Gurgoan road from where accused Karambir got three pairs of cloths from his relatives as clothes of accused Nanhe, Sanu and Rohit were got blood stained. After changing the clothes, all came towards Delhi in above mentioned car and when they reached at Ballabgarh Faridabad Bypass road, accused Nanhe threw the knife while accused Karambir removed the blood stained car seat cover and threw it on road side. Thereafter, they also threw the blood stained clothes near the bank of Agra Canal near Faridabad. After that they came at Badarpur Metro Parking where they parked the above mentioned i10 car and then went to Chhatisgarh via Nizamudin railway station.
19 It is also case of prosecution that accused persons namely State vs. Karamvir @ Kala & Ors. Page No. 33/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka Karambir, Vikas, Naveen @ Sunny and Deepak @ Dilli were arrested on 15.08.2012 from village Matra, Tehsil Damdha, district Bemitra, Chhatisgarh where the said accused persons made disclosure statements about their involvement in the present crime and accused Karambir produced a parking slip Ex.Pw9/P1 and key Ex.P7 of i10 car no. DL 4CAP6462.
20 The parking slip Ex.PW9/P1 and key of the i10 car Ex.P7, seat cover Ex.P3 and i10 car no. DL4CAP6462 are very vital pieces of evidence for the purpose of analyzing the case of the prosecution as the prosecution has relied very heavily upon these pieces of evidence. The parking slip and car key were allegedly produced by accused Karambir @ Kale at the time of his arrest in Chhatisgarh while the seat cover and i10 car are stated to have been recovered at the joint instance of accused Karambir @ Kale, Naveen @ Sunny, Vikas and Deepak @ Dilli.
21 So far as parking slip Ex.PW9/P1 is concerned it bears only four digits i.e '6462' on it and not the complete registration number of the car concerned. Further, no counter foil of the receipt book has been recovered by the police during investigation nor the said slip has been got State vs. Karamvir @ Kala & Ors. Page No. 34/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka matched with the receipt book or counter foil. The prosecution has examined PW9 Sh. Rakesh Kumar Jha who claimed to be the attendant of the parking at Badarpur Metro Station and identified the parking slip Ex.PW9/P1 as pertaining to Badarpur Metro Parking. The PW9 has deposed that he had told the police that said slip was not issued by him. During his crossexamination, he stated that he was not aware as to when the said car was parked in the parking and by whom. Further this witness has worked at the said metro parking for a very brief period of about 10 days i.e from 13.08.2012 to 23.08.2012 as claimed and thereafter he was removed from the job. There is no proof that PW9 was actually working at parking attendant and if yes, why he was removed only after 10 days. It is very surprising that PW9 started working at Badarpur Metro Parking on 13.08.2012, on 15.08.2012, one police official asked him not to let the above mentioned car go from parking, the car was allegedly recovered on 19.08.2012 and services of PW9 are terminated after few days. The overall circumstances leading to services of PW9 are very doubtful and he can not be taken as a natural and reliable witness. Moreover, in view of denial about issuance of the parking slip by him and absence of any other corroboration, the parking slip Ex.PW9/P1 cannot be taken as a genuine parking slip of Badarpur Metro Station Parking much less the parking slip of concerned i10 car. Further the recovery of the car key in itself is State vs. Karamvir @ Kala & Ors. Page No. 35/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka doubtful due to various reasons. Clearly, there is no independent public witness who corroborated the recovery of said parking slip from accused Karambir @ Kala. PW10 Sanjeet is brother of deceased Sandeep and clearly he is an interested witness. While PW13 Jaivir, who is an independent witness has not supported the case of prosecution. He has denied having joined the investigation with police on 13.08.2012 or 15.08.2012 and that accused persons namely Karambir @ Kala, Vikas, Naveen @ Sunny and Deepak @ Dilli were arrested in his presence as claimed by the prosecution. The statements of the police witnesses pertaining to such recovery are also not free from contradictions. PW26 HC Narender says that the parking slip was recovered during the personal search of accused while PW32 SI Dinesh says that the same was produced by the accused. It is not clear as to in what manner the parking slip was actually procured by the police. Further the local police was not informed and joined in the investigation before effecting the recoveries and no DD entry of any such local police station has been proved on record. No local witness has been joined in the investigation in Chhatisgarh.
22 So far as the recovery of car key Ex.P7 is concerned, It is not State vs. Karamvir @ Kala & Ors. Page No. 36/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka made clear by the investigating agency as to where the said key of the car was at the time of proceedings being carried out at Badarpur Metro Parking and how the said car key is connected with the recovered car. The key Ex.P7 has not been used at any point of time during investigation for opening or igniting the car and it is not even proved that the said key is actually a car key much less the car key of i10 car mentioned above. Further, the recovery of the car key in itself is doubtful due to various reasons. Clearly, there is no independent public witness who corroborated the recovery of said key from accused Karambir @ Kala. PW10 Sanjeet is brother of deceased Sandeep and clearly he is an interested witness. While PW13 Jaivir, who is an independent witness has not supported the case of prosecution. He has denied having joined the investigation with police on 13.08.2012 or 15.08.2012 and that accused persons namely Karambir @ Kala, Vikas, Naveen @ Sunny and Deepak @ Dilli were arrested in his presence as claimed by the prosecution. The statements of the police witnesses pertaining to such recovery are also not free from contradictions. PW26 HC Narender says that the car key was recovered during the personal search of accused while PW32 SI Dinesh says that the same was produced by the accused. It is not clear as to in what manner the car key was actually procured by the police. Further the local police was not informed and joined in the investigation before effecting State vs. Karamvir @ Kala & Ors. Page No. 37/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka the recoveries and no DD entry of any such local police station has been proved on record. No local witness has been joined in the investigation in Chhatisgarh.
23 As far as i10 car no. DL4CAP6462 is concerned, the same is stated to have been recovered at the joint instance of accused Karambir @ Kala, Vikas, Naveen @ Sunny and Deepak @ Dilli from Badarpur Metro Parking on 19.08.2012. Firstly, it looks very strange that a particular thing is recovered at the joint instance of four accused persons. The very concept of joint instance/joint pointing out is against the basic principals of collection of evidence. It is no where claimed that all the four accused persons had pointed out the place of recovery separately. If they all were together at the time of alleged pointing out, it cannot be decided as to which of the accused had actually pointed out the said place. Further the pointing out of the place of recovery of i10 car was otherwise not of much use as the said place is a known place and these facts had already come into the knowledge of police officials at the time of alleged recovery of parking slip and car key while in Chhatisgarh. Further, the PW9 has claimed that some police officials had come to him on 15.08.2012 i.e several days before the date of pointing out and recovery of car, and asked State vs. Karamvir @ Kala & Ors. Page No. 38/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka him to not to let the car go from parking. So, if everything was within the knowledge of the police much before 19.08.2012, what is the relevancy of the pointing out memo dt. 19.08.2012.
24 The circumstances leading to recovery of car from Badarpur Metro Parking are otherwise also very doubtful due to different contradictions between the statements of concerned witnesses. PW6, PW 7, PW8, PW9, PW36 & PW37 are material witnesses pertaining to the proceedings relating to recovery of car from Badarpur Metro parking. PW 6 ASI Ajit Singh is Incharge of the Mobile Crime Team, who inspected the said i10 car and he deposed that the car was already unlocked/opened when they inspected the same. PW7 HC Udham Singh, a member of Crime team deposed that the car was got unlocked by the SHO but he did not know the name of the person who opened the car. PW8 HC Sanjeev of the crime team gave a third version and stated that the car was locked and it was opened by HC Udham. PW36 SI Gulshan Nagpal stated that the car was opened by the SHO with Central locking key. PW37 IO/SHO Inspr. Ramesh Chander stated that he opened the car but not clarified how. It is clear from the testimonies of these witnesses that there is total lack of harmony between these statements and such contradictions between the State vs. Karamvir @ Kala & Ors. Page No. 39/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka statement of different witnesses have raised serious doubts about the genuineness of the proceedings allegedly carried out by the police at Badarpur Metro Parking on 19.08.2012.
25 It is also case of the prosecution that seat cover Ex.P3 was recovered during investigation at the pointing out of the accused persons namely Karambir @ Kala, Vikas, Naveen @ Sunny and Deepak @ Dilli from near Agra Canal at BallabgarhFaridabad Byepass road. It is contended that seat cover Ex.P3 was having blood stains and the said blood was found to be of deceased Sandeep @ Bittu on examination by the FSL expert. On perusal of the evidence in respect of recovery of the seat cover and its connection with the crime, it is found that one part of the seat cover was allegedly recovered while the other part could not be recovered. The recovered part has not been matched with the other part/parts of the seat cover, if any available in the i10 car at the time of recovery. The status of the remaining portion/portions of the seat covers is not clarified by the IO either in the chargesheet or during trial. There is no cogent evidence to show that seat cover Ex.P3 was actually the part of the cover of the i10 car mentioned above. PW13 Jaiveer @ Bintu is stated to be an eyewitness to the recovery of seat cover but this witness State vs. Karamvir @ Kala & Ors. Page No. 40/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka has not supported the case of prosecution and has denied having witnessed any such recovery. Further, the said seat cover is stated to have been recovered from near the place where the knife used in the crime was allegedly thrown by the accused persons. The said place has been pointed out by way of joint pointing out memo which shows the baselessness of the document. It is very surprising that the IO in this case has prepared several documents titled as pointing out memo on the alleged joint pointing out made by four accused persons. It seems very ridicules that a particular place is pointed out jointly or simultaneously by several persons. So, this pointing out in itself is of no use. Further, there is no corroboration from the FSL result and the report Ex.PW33/B filed by the PW33 is of no help in this regard.
26 The prosecution has not been able to connect the i10 car no. DL4CAP6462 with the present incident by reliable connecting evidence. There are several doubts and discrepancies in the case of the prosecution in this regard. Firstly, there is no direct evidence, as mentioned earlier also, to show that the said car was used in the crime. PW4 is the only witness who is in nature of eyewitness as he claimed to have seen the abduction of the deceased by some unknown persons. He has not seen or State vs. Karamvir @ Kala & Ors. Page No. 41/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka mentioned the car number of the accused persons. Secondly, the story of the prosecution is not probable as seven accused persons and the deceased cannot be easily accommodated in an i10 car which is a small car. Thirdly, no evidence has been led to prove the ownership of the said car. Since, it is matter of record that the said car was taken on Superdari by the mother of accused Karambir @ Kala, if it is assumed that mother of Karambir @ Kala was the owner of the said car, still there is no evidence to show that accused Karambir @ Kala or any other accused persons was actually using the said car on the date of incident. No witness has seen either accused Karambir or any other accused person with the said car on the date of incident. If ownership is the criteria, then mother of accused Karambir @ Kala should have been implicated as an accused and not the accused Karambir @ Kala. Fourthly, the parking slip Ex.PW9/P1 has not been proved as per law. Neither the recovery of the parking slip from possession of accused Karambir @ Kala nor the genuineness of the said slip have been duly established beyond doubts. Fifthly, the key Ex.P7 has also not been connected with the above mentioned i10 car. Neither the recovery of the key nor its connection with the i10 car have been established beyond doubts during trial. Lastly, the recovery of seat cover Ex.P3 has not been proved as per law nor the same has been established State vs. Karamvir @ Kala & Ors. Page No. 42/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka to be the seat cover of the said car. In such circumstances, it can be assumed safely that the prosecution has not been able to prove that it was the i10 car no. DL4CAP6462 which was used in the crime.
27 With regard to the alleged recoveries effected at the instance of different accused persons, it is to be noted that no independent public witness has been joined in the investigation at the time of recording of the alleged disclosure statements of the accused persons and in absence of any such independent witness, the alleged recoveries effected pursuant to such disclosure statement can be discarded. The Hon'ble Delhi High Court in Anil Kumar Goswami vs. State (NCT of Delhi) 2012 (1) JCC 47 has given similar observations and has discarded the alleged recoveries for want of independent witnesses at the time of recording of disclosure statement or at the time of effecting the recoveries.
28 It is also important that some of the vital recoveries have been allegedly effected from the places situated outside Delhi and in none of the cases the local police has been informed or joined by the IO at the time of recovery. The Hon'ble Delhi High Court in Ramesh vs. State of NCT of Delhi 2013 (1) JCC 50 has discarded the recoveries on the ground that State vs. Karamvir @ Kala & Ors. Page No. 43/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka no permission was taken by the investigation officer from competent authority to travel out of Delhi and no information was given to the Local police about arrival of police team from Delhi and no arrival entry was made in the concerned police station. In such circumstances, all the recoveries have come under serious doubt.
29 Further, it has also been noticed that almost none of the recoveries have been effected strictly in terms of section 27 of the Indian Evidence Act and the facts leading to alleged recoveries have been narrated in a general manner. It is not clearly and categorically deposed by the relevant witnesses of Delhi Police that the recoveries were actually effected in pursuance to the disclosure statements and at the exclusive instance of the accused persons. Certain vital contradictions are also noticed in the testimonies of different witnesses including the police witnesses regarding the alleged recoveries.
30 In view of above discussion, it is clear that the alleged recoveries effected by the IO are not as per law and there are serious doubt in the case of prosecution in this regard. Even otherwise, the recoveries if any are merely a corroborative piece of evidence, which is to be analyzed State vs. Karamvir @ Kala & Ors. Page No. 44/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka in light of other material available on record.
OTHER CIRCUMSTANCES FSL Examination 31 The prosecution has relied upon the FSL report Ex.PW33/A prepared by PW33 Mr. D.S. Paliwal, Senior Scientific Assistant, FSL Rohini regarding identity of the dead body and comparison of blood stains on the seat cover Ex.P3 and other parts of the i10 car no DL4CAP6462. It has been opined by the FSL expert that Smt. Shakuntla is biological mother of source of exhibit 2 i.e Molar teeth of the deceased, which establishes the identity of the deceased as son of Smt. Shakuntla i.e Sandeep @ Bittu. The other part of the FSL report deals with comparison of the blood present on the clothes of the deceased, seat cover Ex.P3 and blood present in the i10 car with blood sample of the mother of the deceased namely Smt. Shakuntla and it is opined on the basis of DNA profiling that source of the blood allegedly lifted from the car i.e exhibit 4A1, 12, A3 & A4 and blood of Smt. Shakuntla are of same source. There is no opinion about the blood, if any present on the seat cover Ex.P State vs. Karamvir @ Kala & Ors. Page No. 45/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka 3 which was allegedly recovered at the instance of accused persons. Although, the FSL result is positive about presence of blood of the deceased in the i10 car but in view of other doubts in the case of the prosecution as discussed earlier, the FSL result is not of much consequences for the purpose of proving the guilt of the accused persons.
Character of the deceased and PW10 32 It has been submitted on behalf of accused persons that the deceased Sandeep was a bad character of the area and his brother Sanjeet (PW10) is also having the same reputation. Further that both the brothers had enmity with several persons and the deceased Sandeep might have been eliminated by any such enemy. Attention of the court has been drawn towards crossexamination of PW10 where he has admitted that he and his brother Sandeep were involved in several criminal cases. In such circumstances, it can be assumed that there can be several persons who had enmity with the deceased and motive to eliminate him.
No evidence found with dead body to connect the accused with crime.
33 The dead body of deceased Sandeep was recovered in a State vs. Karamvir @ Kala & Ors. Page No. 46/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka decomposed conditions in the area of P.S Sadar Bahadurgarh in Haryana. Permit of Gramin Sewa vehicle and I card of the Sanjeet were recovered from the dead body but there is no incriminating material of piece of evidence recovered with or from the dead body which could suggest the name of the culprit. No connection has been established between the injuries on the dead body and weapon of offence allegedly used by the accused persons as weapon of offence have not been recovered during investigation. The site plan Ex.PW37/A and pointing out memos Ex.PW 10/Q, PW37/F, PW37/K3 and Ex.PW40/C prepared at the instance of accused persons are of no use to connect any of the accused persons with the dead body.
No recovery of weapon of offence 34 The accused persons had allegedly committed the murder of deceased Sandeep with hockey, rod and sticks but no such weapon has been recovered by the police during investigation despite the police custody remand of the accused persons. The pointing out memos Ex.PW 10/R, Ex.PW37/G, PW37/J, PW37/K4, PW37/K6, PW40/D and Ex.Pw40/F of the place of throwing of weapons are of no consequences State vs. Karamvir @ Kala & Ors. Page No. 47/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka in absence of any recovery of weapon.
No recovery of blood stained clothes of accused persons.
35 It is case of the prosecution that some of the accused persons had suffered blood stains on their clothes which were subsequently thrown by the accused persons but no such blood stained clothes of the accused persons have been recovered by the police during investigation despite the police custody remand of the accused persons. The pointing out memos Ex.Pw10/S, PW37/H, PW37/K5 & PW40/E and site plan Ex.PW37/B of the place of throwing of clothes is of no consequences in absence of any recovery of weapon. It is case of prosecution that accused Karambir had taken three sets of clothes from his relative for his associates who had suffered blood stains but no such relative of the accused has been joined in the investigation and examined during trial.
Doubts raised by the hostile public witnesses 36 The prosecution has cited PW13 Jaivir showing him to be independent public witnesses who joined the investigation at different State vs. Karamvir @ Kala & Ors. Page No. 48/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka stages but this witness has failed to support the case of prosecution when examined in court. Statement of PW13, who has been cited by the prosecution to substantiate the allegations against the accused persons, has failed to support the case of prosecution. The failure of this witness to support the case of prosecution has raised serious doubts about the genuineness and correctness of the case of the prosecution and fairness of the investigation.
Conduct of the accused persons 37 It is case of prosecution that accused Nanhe, Sanu Khan and Rohit had gone missing after the incident which raised suspicion qua them. These persons are stated to be associates of accused Karambir @ Kala. Some copies of different DD entries Ex.Pw37/L1, Ex.PW37/L2, PW37/L3, PW28/A and Ex.PW28/D regarding the missing reports of these persons were tendered in evidence by the IO. It is stated that the conduct of these accused persons has rendered them liable for the alleged offence. In this regard, it is found on record that the material brought on record by the prosecution is not specific or sufficient. Moreover, the accused persons have explained the alleged disappearance from their State vs. Karamvir @ Kala & Ors. Page No. 49/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka house. It is clear from the record that the prosecution has not been able to prove convincingly that the above mentioned accused persons had disappeared to avoid themselves from implication in the present case.
CONCLUSION 38 It is well settled law that fouler the crime is, the clearer and plainer ought the proof to be. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. (ref. Balwinder Singh vs. State of Punjab in AIR 1996 SC 607).
39 Similarly in Hanumant vs. State of M.P 1953 CrLJ 129 the Hon'ble Supreme Court has observed that in dealing with circumstantial evidence, rules specially applicable to such evidence must be kept in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. It is also observed in the same judgment that there must be a chain of evidence so complete as not State vs. Karamvir @ Kala & Ors. Page No. 50/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka to leave any reasonable grounds for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabilities the act must have been done by the accused.
40 The circumstances relied upon by the prosecution have the element of some suspicion but have not been proved conclusively beyond reasonable doubts. The statements of witnesses are full of contradictions, omissions and improvements. Virtually, there is no clinching evidence on record without infirmities on any circumstance. The accused can not be convicted on the basis of scanty, unreliable and faulty investigation which has gaps and holes. Not a single circumstance spoken by the witnesses inspire confidence to establish the guilt of the accused.
41 In view of above discussion, I am of the view that the evidence adduced by the prosecution is not sufficient to record the guilt for the offences the accused persons have been charged with. Various incriminating circumstances relied upon by the prosecution are not sufficient to draw an inference of guilt of accused persons and the chain of circumstances has not been cogently or firmly established and the circumstances have no definite tendency to unerringly point toward the State vs. Karamvir @ Kala & Ors. Page No. 51/52 SC No. 51/1/14 FIR No. 146/12 P.S Mundka guilt of the accused. The accused persons are entitled to benefit of doubts existing in the case of prosecution.
42 Hence, in these circumstances, all the accused persons namely Karambir @ Kala, Vikas, Naveen @ Sunny, Deepak @ Dilli, Rohit, Mohd. Faizan @ Nanhe and Mohd. Sanu are acquitted of all the charges framed against them.
ANNOUNCED IN THE OPEN COURT (SANJAY JINDAL)
TODAY i.e.ON 10th JUNE, 2016 ASJ:04:WEST:THC:DELHI
10.06.2016
State vs. Karamvir @ Kala & Ors. Page No. 52/52