Delhi District Court
State vs . Sanjay @ Pintu And Others on 22 January, 2013
State Vs. Sanjay @ Pintu and others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 55 of 2011
ID No: 02401R0559442011
FIR No. : 68/2011
PS. : Kamla Market
U/S : 302/34 IPC
STATE
VERSUS
1. Sanjay @ Pintu
S/o Sant Ram
R/o L-286, Peenwali Building,
Nabi Kari, Delhi.
Permanent Address:
Village Udai Sarai,
Tharipau, Distt. Fetehpur,
Uttar Pradesh.
........Accused No. 1
2. Kapil
S/o Shah Dev
Village Kimwahi,
PS Handalki, Distt. Madhubani,
Bihar
........Accused No. 2
3. Gulab @ Mamu
S/o Younis
R/o Village Mahsaul Chowk,
Ward No.28, PS Sitamandi,
Bihar.
........Accused No. 3
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State Vs. Sanjay @ Pintu and others
4. Ibrahim @ Gutva @ Vatuvo
S/o Mohd. Saleem
R/o Village Machwada,
PS Khagda, Distt. Kishan Ganj,
Bihar.
........Accused No.4
Date of Institution : 21.11.2011
Date of Committal to Sessions Court : 16.12.2011
Date of judgment reserved on : 17.01.2013
Date of pronouncement of judgment : 22 .01.2013
Present Sh. R.K. Tanwar, learned Additional Public Prosecutor for
the State
Sh. Dinesh Sharma, Advocte, learned Amicus Curiae for all
the accused persons
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on August 21, 2011 at about 5:55:43 hours, an intimation was received at police control room from mobile phone No. 9266503959 that a murder had taken place at house No.1, Kamla Market. The said information was recorded at police station Kamla Market vide DD No. 13A at about 6 AM (Ex. PW7/A), the same was assigned to SI Jagdish Parsad who along with constable Shiv Shanker left for the place of occurrence. Intimation was also sent to Insp. Suman Kumar Sharma.
(i) On reaching Kamla Market, one dead body of a male, aged about 30 years, height 5.6 ft having multiple wounds was found lying there.
Though efforts were made to get identified the deceased, yet the same could not be identified. Crime team was summoned and spot was got photographed. On the basis of above DD, rukka (Ex. PW24/A) was SC No. 55/2011 Page no. 2 of 40 State Vs. Sanjay @ Pintu and others prepared and an FIR for the offence punishable under Section 302 IPC was got registered.
(ii) Exhibits were lifted from the spot, dead body was got sent to the mortuary of LNJP hospital for post-mortem. On local enquiry, the name of deceased was revealed as Syed Ali s/o Mohd. Ali, permanent resident of H.No.7, Taltala Bazar Street, Calcutta-14. Accordingly, family members of the deceased were contacted on phone through local police station. Sister of deceased disclosed the name of deceased as Aslam. Family members were asked to come Delhi to identify the dead body of the deceased. During investigation, investigating officer recorded the statement of Smt. Subhdra @ Sumitra (PW8) and her son Lalla @ Raju (PW16).
(ii) It was alleged that PW Lalla @ Raju disclosed in his statement that he was present in the cooler Market near Ghanta-Ghar on August 20, 2011 and he had seen the accused persons namely Kapil, Gutva, Sanjay and Mamu to enter the cooler market at about 12 mid night and he knew all of them previously. It was alleged that he also slept there. On August 21, 2011. at about 4.30 AM, he got up and went to the public toilet located near shop No.1, cooler market. At that time, he had heard the sound of screams from behind the shop No.2, consequently, he went there and saw that three boys had overpowered one boy whereas fourth one was instigated the said three boys to kill him. It was alleged that accused Mamu had caught hold his friend Syed Ali from behind whereas accused Kapil and Gutva were having sharp edged weapon in their hands and they were giving the blows to their friend Syed Ali. It was further alleged that accused Sanjay @ Pintu exhorting them by saying to kill him. It was alleged that when he asked why they were killing him, accused Mamu abused him and asked him to stay there, they would also kill him, consequently, he became scared and thus SC No. 55/2011 Page no. 3 of 40 State Vs. Sanjay @ Pintu and others ran away from the spot.
(iv) It was alleged that on August 23, 2011, on receipt of secret information, police party apprehended the accused Kapil and Sanjay @ Pintu from premise No. L-286, Pinwali Building, Nabi Karim. It was further alleged that at the instance of accused Kapil, one blade of scissor was recovered from the roof of the said building. One jeans pant was also recovered from the said roof, which was stated to be worn by the accused at the time of incident. Both were sealed in separate pullanda and seized.
(v) Accused Kapil and Sanjay @ Pintu were taken on police remand for two days. It was alleged that accused Kapil had injury marks on his right palm and fingers. Consequently, forensic opinion was obtained about the said injury and doctor opined that such injuries were possible by the recovered scissor blade.
(vi) Post-mortem was got conducted on the dead body and it was identified by the relatives of the deceased.
(vii) It was alleged that on October 30, 2011, on receipt of secret information, accused Gulab Singh @ Mamu was arrested. On his cursory search, one loaded revolver was recovered from his possession for which a separate FIR No. 96/2011 under Section 25 Arms Act was got registered and the same was investigated by SI Pardeep. At the instance of accused Gulab @ Mamu, accused Ibrahim @ Gutva was arrested from near Metro Express building, Barren Road.
(viii) It was alleged that at the pointing out of accused Ibrahim @
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Gutva, another blade of scissor was recovered from the roof of public toilet located on the road leading towards over bridge, Pahar Ganj. Accordingly, the same was seized. During TIP, witness identified the accused Ibrahim @ Gutva, however he failed to identify the accused Gulab @ Mamu. It was alleged that he failed to identify him as accused Gulab @ Mamu had extended threat to him.
(ix) After completing investigation, challan was filed against all the accused persons for the offence punishable under Section 302/34 IPC.
2. After complying with the provisions of Section 207 Cr. P.C., the case was committed to the Court of Sessions on December 3, 2011. Thereafter, the case was assigned to this Court on December 16, 2011. Accordingly, the case was registered as Sessions Case No. 55/2011.
3. Vide order dated January 12, 2012, a charge for the offence punishable under Section 302/34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial.
4. In order to bring home the guilt of the accused persons, prosecution has examined as many as 25 witnesses. For the purpose of discussion, said witnesses have been classified in the following categories:-
(I) Category A: Material Witnesses:- PW8 Smt. Subhadra, turned hostile PW16 Lalla @ Raju, eye witness, turned hostile SC No. 55/2011 Page no. 5 of 40 State Vs. Sanjay @ Pintu and others (II) Category B: Medical and Scientific Evidence:- PW14 Dr. Anju Rani, proved the injury of accused Kapil PW15 Dr.Sreenivas M., proved the autopsy report and opinion qua weapon of offence PW23 Dr. Ravleen, proved the MLC of accused Kapil (III) Category C: Connected witnesses:- PW5 HC Mukesh, deposed the pullandas with FSL PW10 HC Rajbir, in-charge of PCR van PW12 HC Shyam Suder, MHC(M) PW25 Sh. Vinay Singhal, Ld. Metropolitan Magistrate, proved TIP proceedings. (IV) Category D: Member of Crime Team:- PW1 Const. Gurmeet Singh, photograph PW6 SI Dhan Singh, in-charge of Crime Team (V) Category E: Witnesses of Case FIR No. 96/11:- PW22 SI Pradeep (VI) Category F: Formal Witnesses:- PW2 SI Mahesh Kumar, draughtsman, proved the scale site plan PW3 Const. Bhumika, proved the PCR form No.1 SC No. 55/2011 Page no. 6 of 40 State Vs. Sanjay @ Pintu and others PW4 Mohd. Ali, father of deceased, identified the dead body PW7 ASI Bodh Raj, duty officer, proved the FIR PW9 Const. Deepak, proved the DD No.7B PW11 HC Mukesh Kumar, proved the DD No. 31A
PW13 Rajiv Rajan, Nodal officer of Tata Telephone Service (VII) Category G: Member of Investigating Team:-
PW17 Const. Shiv Shanker PW18 Const. Krishan Kumar PW19 Insp. Surenderjeet Kaur PW20 SI Jagdish PW21 Insp. SI Deepak PW24 Insp. Suman Kumar Sharma, investigating officer
5. Thereafter, accused persons were examined under Section 313 Cr. P.C. wherein accused persons denied all the incriminating evidence led by the prosecution and submitted that they have been falsely implicated in this case. However, they refused to lead evidence in their evidence.
6. Learned counsel appearing for the accused persons sagaciously contended that there is no admissible evidence against the accused Sanjay @ Pintu and Gulab @ Mamu. It was urged that both the star witnesses of prosecution i.e. PW8 Smt. Subhadra @ Sumitra and PW 16 Lalla @ Raju have turned hostile completely and they did not utter even a single word against them. It was further contended that nothing incriminating was recovered from them. Even PW 16 failed to identify the accused Gulab @ Mamu during the identification parade, but in order to nullify the the same, investigating officer had recorded a supplementary statement of PW16 to SC No. 55/2011 Page no. 7 of 40 State Vs. Sanjay @ Pintu and others the effect that he did not identify the accused during identification parade as accused Gulab @ Mamu had given a threat to him. But PW16 did not support the prosecution case in this regard. It was submitted that the no reliance can be placed on the disclosure statement allegedly made by the accused persons as the same is hit by Section 25 of Indian Evidence Act.
7. Learned counsel appearing for the accused persons further contended that though PW16 had identified the accused Ibrahim @ Gutwa during identification parade, yet during the trial he turned hostile completely and did not support the prosecution case in any manner. It was submitted that the identification of accused during TIP is not a substantative evidence, thus it was urged that said evidence can not read against the accused. It was submitted that there is no other admissible evidence to prove the guilt of the accused. It was further submitted that prosecution has also relied upon the blade of scissor, which was allegedly recovered at the instance of accused Ibrahim @ Gutva, but astutely contended that the said recovery is not admissible under Section 27 of Indian Evidence Act as it is not recited in his disclosure statement that he had concealed any such blade at the place from where the alleged recovery was affected. It was contended that there is no other evidence on record to bring home the guilt of the accused.
8. The contention relating to the accused Kapil shall be dealt with at the subsequent part of the judgment.
9. Learned Additional Public Prosecutor for the State fairly conceded that there is no admissible evidence against the accused Sanjay @ Pintu and Gulab @ Mamu except their disclosure statements. He further admitted that PW8 and PW16 did not support the prosecution case in any manner.
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10. However, learned Additional Public Prosecutor refuted the contentions qua accused Ibrahim @ Gutva by contending that blood stained blade of the scissor was recovered at the instance of accused and the said recovery is admissible under Section 27 of Indian Evidence Act. It was further contended that PW16 had identified the accused during TIP. It was submitted that these two pieces of evidence are sufficient to prove the guilt of accused.
11. I have heard rival submissions advanced by learned counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions. It is pertinent to state that learned Additional Public Prosecutor has not cited any case law in support of his contentions.
PW8 & PW16:
12. PW8 & PW16 were the star witnesses of the prosecution but both the witnesses turned hostile completely and did not support the prosecution case in any manner. As per prosecution version, PW16 had witnessed the entire incident but he did not support the prosecution version in any manner by deposing that he had not seen the incident of murder. He even deposed that he did not know the accused persons previously while prosecution case was that he knew the accused persons erstwhile. Similarly, he also deposed that he had not seen the accused persons entering the cooler market whereas prosecution case was that he had seen them entering the cooler market. Though PW16 was cross-examined by learned Additional Public Prosecutor in length, yet nothing could be extracted from him which may help the prosecution in any manner. In other words, the testimony of PW16 is not helpful to the prosecution in any SC No. 55/2011 Page no. 9 of 40 State Vs. Sanjay @ Pintu and others manner.
13. Prosecution case was that all the accused had extended threat to PW8 asking her to make understood to the deceased and PW16 otherwise they would eliminate them. Though PW8 in her deposition deposed that four persons had visited her rehri and threatened her to make understood the deceased and her son (PW16) otherwise they would eliminate them, yet she deposed that the said persons were in muffled face, thus she cannot identify them. She denied the suggestion that accused persons had visited her rehri on August 20, 2011 and threatened her. She also failed to identify any of the accused persons. Thus, the testimony of PW8 is also not helpful to the prosecution in any manner.
14. From the above, it becomes abundantly clear that there is no ocular evidence to prove the guilt of the accused persons. Now, question arises as to whether there is any circumstantial evidence to prove the guilt of accused persons.
Accused Sanjay @ Pintu:
15. Besides the statement of above two witnesses, prosecution in order to prove the culpability of accused Sanjay @ Pintu has also relied upon the disclosure statement (Ex. PW21/A) wherein he disclosed to the police that at his exhortation accused Kapil and Gutwa had assaulted the deceased by the means of blade of scissor. It is trite to say that the confession before police official is inadmissible as the same is hit by Section 25 of Indian Evidence Act. Thus, the disclosure statement Ex. PW21/A has no evidentiary value in the eyes of law. Admittedly, no distinct fact was recovered from the alleged disclosure statement. Nor any recovery SC No. 55/2011 Page no. 10 of 40 State Vs. Sanjay @ Pintu and others was affected pursuant to the alleged disclosure statement. There is no other evidence on record to connect the accused Sanjay @ Pintu with the murder of deceased.
16. In view of the above, I am of the opinion that prosecution has miserably failed to bring home the guilt of the accused Sanjay @ Pintu for the offence punishable under Section 302/34 IPC, thus, I hereby acquit him thereunder.
Accused Gulab @ Mamu:
17. Apart from the statement of above two witnesses, prosecution has also relied upon the disclosure statement (Ex.PW18/A) to prove the culpability of the accused Gulab @ Mamu. As already discussed that both the witnesses i.e. PW8 and PW16 did not support the prosecution version in any manner. In his disclosure statement (Ex. PW18/A) he stated before the police that he had caught hold the deceased from behind and accused Kapil and Gutva had assaulted him by the blades of scissor at the exhortation of accused Sanjay. As already stated that the confessional statement before the police is not admissible in the eyes of law as the same is hit by Section 25 of Indian Evidenc Act. Thus, the confessional statement of the accused that he had caught hold the deceased and accused Sanjay and Gutva had assaulted the deceased by the means of blades of scissor is inadmissible in evidence, thus, the same has no evidentiary value. Except that there is no other evidence on record to prove the culpability of the accused.
18. In view of the above, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of the accused SC No. 55/2011 Page no. 11 of 40 State Vs. Sanjay @ Pintu and others Gulab @ Mamu for the offence punishable under Section 302/34 IPC, thus, I hereby acquit him thereunder.
Accused Ibrahim @ Gutva:
19. Learned counsel appearing for the accused sagaciously contended that there are three incriminating evidence against the accused; firstly that one blood stained blade of the scissor was recovered pursuant to his disclosure statement Ex. PW18/G; secondly that as per FSL report Ex. PW 24/F and Ex. PW24/G human blood was found on the said blade; thirdly that PW16 had correctly identified the accused in the identification parade.
20. Learned defence counsel astutely contended that the alleged recovery of blade of the scissor was not in accordance with the provisions of Section 27 of Indian Evidence Act as in his disclosure statement Ex. PW18/G he nowhere disclosed that he had concealed the said blade at any place, thus, contended that no distinct fact was discovered during his disclosure statement. It was further contended that prosecution has failed to connect the said blade with the offence as FSL reports only prove that human blood was found on the blade but there is no evidence to prove that the said blood was of deceased. He further argued that the identification of the accused during TIP is not a substantive piece of evidence, thus, same can not be read in evidence.
21. Per contra, learned Additional Public Prosecutor countered the said contentions by arguing that the recovery of blood stained blade was in accordance with the provisions of Section 27 of Indian Evidence Act, thus, there is no reason to disbelieve the same. It was further urged that SC No. 55/2011 Page no. 12 of 40 State Vs. Sanjay @ Pintu and others since human blood was detected on the said blade, presumption is that accused had used the said blade in commission of the murder. It was further submitted that PW16 had identified the accused during TIP, which further proves the case of prosecution.
22. First question arises as to whether the recovery of blade of scissor was in accordance with the provisions of Section 27 of Indian Evidence Act or not? In this regard, the testimony of PW18 constable Kishan, PW21 SI Deepak and PW24 inspector Suman Kumar Sharma are relevant.
23. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others vs. Emperor [AIR 1947 PC 67] wherein it was held :
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, SC No. 55/2011 Page no. 13 of 40 State Vs. Sanjay @ Pintu and others said to be connected with the crime of which the informant is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and that any information which relates distinctly to that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S. 26, added by S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of SC No. 55/2011 Page no. 14 of 40 State Vs. Sanjay @ Pintu and others the knife in the house of the informant."
(emphasis supplied)
24. In Mohmmed Inayatullah v. State of Maharastra, AIR 1976 SC 483 the Supreme Court explained the scope of Section 27, and the steps to apply it as follows:
"The first step in the process was to pinpoint the fact discovered in consequence of this statement. Obviously, in the present case, the threefold fact discovered was: (a) the chemical drums in question, (b) the place i.e. the Musafirkhana, Crawford Market, wherein they lay deposited and (c) the accused's knowledge of such deposit. The next step would be to split up the statement into its components and to separate the admissible from the inadmissible portion or portions. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected.. Thus processed. in the instant case, only the first part of the statement, viz., "I will tell the place of deposit of the three Chemical drums" was the immediate and direct cause of the fact discovered. Therefore, this portion only was admissible under Sec.
27. The rest of the statement, namely, "which I took out from the Haji Bunder on first August", constituted only the past history of the drums or their theft by the accused: it was not the distinct and Proximate cause of the discovery and had to be ruled out of evidence altogether.
After culling out and rejecting the inadmissible portion, it was to be considered further whether the admissible portion of the information taken in conjunction with the facts discovered was sufficient to draw the presumption that the accused was the thief or receiver of stolen property knowing it to be stolen. The answer to this questions in the circumstances of the case, had to be in the negative. The drums in question were found in the compound or yard of a Musafirkhana which was a SC No. 55/2011 Page no. 15 of 40 State Vs. Sanjay @ Pintu and others place of rest and waiting for Musafirs (travellers). It was not alleged by the prosecution-much less proved-that the drums were lying concealed, or that the compound was under the lock and key of the accused. There is not even an oblique hint that the place of the deposit of the drums was in any way under the control or occupation of the accused. The place being a Musafirkhana, was from its very nature accessible to all and sundry. It must be remembered that an inference under s. 114, Illustration (a) should never be reached unless it is a necessary inference from the circumstances of the given case, which cannot be explained on any other hypothesis save that of the guilt of the accused. Such is not the case here."
25. In Geejaganda Somaiah v. State of Karnataka AIR 2007 SUPREME COURT 1355 it was held that:
"22. As the section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act."
(emphasis supplied)
26. In the light of above settled proposition of law, facts of the case in hand will be analysed to ascertain as to whether the alleged recovery is within the four corners of Section 27 of Indain Evidence Act or not?
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27. PW24 in his examination-in-chief deposed that he (accused) had hide the blade of scissor at the roof of toilet situated at the corner of road Ajmeri Gate leading towards Pahar Ganj side and he could point out the said place and could get recovered the blade from there. Accordingly, accused pointed the said toilet and got recovered the blade, which is exhibited as Ex. P-5. His testimony is corroborated by PW18 and PW21. In his cross-examination, PW24 candidly admitted that the above facts that he had hide the blade of scissor at the roof of toilet situated at the corner of road Ajmeri Gate leading towards Pahar Ganj side and he could point out the said place and could get recovered the blade from there are not mentioned in his disclosure statement Ex. PW18/G. PW18 also admitted that the above facts are not mentioned in the disclosure statement Ex. PW18/G. I have perused the disclosure statement Ex. PW18/G and the relevant portion is as under:
"Jo mai moka vardat ki nishandehi kara sakata hu, aur vardat mai istmal kiye gaye kaichi fal ko barmad kara sakata hu."
Thus, it is limpid that accused Ibrahim @ Gutva had not disclosed to the police in his disclosure statement Ex. PW18/G that he had hide the blade of scissor at the roof of toilet situated at the corner of road Ajmeri Gate leading towards Pahar Ganj and he could point out the said place and could get recovered the same. There is no explanation from the prosecution if accused had disclosed the above information to PW24 in his disclosure statement Ex. PW18/G then why PW24 inspector Suman Kumar Sharma had not recorded the same therein. It means that the alleged disclosure statement was recorded in the words of the accused. Needless to say that it is the paramount duty of the investigating officer to record the disclosure statement in the words of accused as far as possible. Or if accused had not disclosed the above information, question arises on what basis the above witnesses deposed so. Again there is no explanation from SC No. 55/2011 Page no. 17 of 40 State Vs. Sanjay @ Pintu and others the prosecution in this regard. As per the testimony of PW18, PW21 and PW24 the relevant information, which was admissible under Section 27 of Indian Evidence Act was that he had hide the blade of scissor at the roof of toilet situated at the corner of road Ajmeri Gate leading to Pahar Ganj and pursuant to that information that blade was recovered from there. But since the vital information that he had hide the blade of scissor at the roof of toilet situated at the corner of road Ajmeri Gate leading to Pahar Ganj has not been recited in the alleged disclosure statement, the testimony of PW18, PW21 and PW24 to the extent that accused had furnished any such information does not inspire any confidence.
28. Considering the above discussion, I am of the opinion that prosecution has failed to prove that the recovery of the blade of scissor (Ex.P-5) was in accordance with the provisions of Section 27 of Indian Evidence Act.
29. Second question arises as to whether prosecution has succeeded to connect the said blade with the incident in question or not?
30. In order to connect the blade (Ex. P-5) with the murder in question, prosecution has relied upon the FSL reports Ex. PW24/F and Ex. PW24/G. As per report Ex. PW24/F, blood was detected on the said blade and as per report Ex. PW24/G the detected blood was of human. But there is no evidence that the said blood belonged to the deceased. Prosecution case is that the blood group of deceased was 'B' Group but as per report Ex. PW24/G no reaction was found in the blood detected on the said scissor blade, thus its grouping could not be ascertained. In order words, there is no scintilla of evidence to prove that the blood detected on the said scissor blade was of deceased. It means that prosecution has failed to SC No. 55/2011 Page no. 18 of 40 State Vs. Sanjay @ Pintu and others connect the recovered scissor blade with the incident in question.
31. From the ongoing discussion, it becomes crystal clear that prosecution has not only failed to prove that the recovery was in accordance with Section 27 of Indian Evidence Act but also failed to connect the recovered scissor blade with the incident in question.
32. Now coming to the last contention as to whether identification of accused by PW Lalla @ Raju during identification parade has any evidentiary value or not?
33. The above question was appropriately answered by the Apex Court in Mohd. Kalam v. State of Rajasthan AIR 2008 SC 1813, relevant portion is reproduced as under:
"As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, SC No. 55/2011 Page no. 19 of 40 State Vs. Sanjay @ Pintu and others therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
8. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Indian Evidence Act, 1872 (in short the 'Evidence Act') the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court.
(emphasis supplied)
34. In the instant case, PW16 Lalla @ Raju has not only failed to identify the accused persons during the trial but in his cross-examination conducted by learned Additional Public Prosecutor also deposed that he had identified the accused Ibrahim during identification parade as police had shown his photograph to him and asked him to identify. In these circumstances, I am of the view that no reliance can be placed on the identification parade wherein PW Lalla @ Raju had identified the accused Ibrahim @ Gutva.
35. Mulling over the ongoing discussion, I am of the considered opinion that prosecution has miserably failed to bring home the guilt of accused Ibrahim @ Gutva for the offence punishable under Section 302/34 IPC, thus, I hereby acquit him thereunder.
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Accused Kapil:
36. Learned counsel appearing for the accused astutely contended that no reliance can be placed on the circumstantial evidence available on the record because the sole alleged eyewitness has turned hostile completely by deposing that he had not seen the incident. It was further submitted that prosecution case is that some injuries were found on the right palm of the accused when he was arrested and as per prosecution said injuries were caused to him when he had inflicted injuries to the accused by the means of blade of scissor. Learned counsel vigorously contended that no reliance can be placed on the said piece of evidence because the investigating officer failed to prepare the body inspection memo at the time of arresting the accused, thus, there is no admissible evidence on record to show that there was any injury on the right palm of the accused. It was further submitted that as per the MLC, the injuries found on the palm were fresh whereas accused was arrested after two days of the incident, which proves that the injuries were not caused at the time of incident. It was further submitted that the alleged injuries were inflicted by the police when the accused was in police custody to create a false evidence. It was further contended that the injuries on the palm is not sufficient to prove the guilt of the accused.
37. Learned counsel further energetically contended that prosecution has strongly relied upon the recovery of jeans pant at the instance of the accused as on the said pant blood stains were found and on the basis of said recovery, prosecution tried to establish that accused was one of the authors of the crime. It was contended that no reliance can be placed on the said piece of evidence because there is no evidence on SC No. 55/2011 Page no. 21 of 40 State Vs. Sanjay @ Pintu and others record to prove that the recovered pant belonged to the accused. In support of his contention, he relied upon the judgment Prabhoo v. State of Uttar Pradesh AIR 1963 SC 1113.
38. Learned counsel appearing for the accused perspicaciously contended that if we remove the above two pieces of evidence the remaining incriminating evidence would be only recovery of blood stained blade of the scissor at the instance of accused. It was contended that on the basis of said single piece of evidence no conviction can be recorded. In support of his contention he relied upon the judgment title Babboo and others v. State of Madhya Pradesh AIR 1979 SC 1042, Surjit Singh and another v. State of Punjab, AIR 1994 SC 110 and B.L. Satish v. State of Karnataka 2002 (4) RCR (Criminal) 401. It was further contended that mere fact that blood group found on the blade of scissor belonged to the deceased is not sufficient to prove the guilt of the accused and he relied upon the judgment Shyam Bir v. State 2009 (3) JCC 2121. It was further contended that once the chain of circumstances is broken, no conviction can be recorded.
39. It was further contended that in the instant case the investigation is tainted as photographs of the spot show that there was one wallet and comb but surprisingly the investigating officer did not deem it appropriate to seize it. Rather investigating officer deposed that since the said items were not relevant, he did not seize it from the spot. It was urged, if the the said items were not relevant why the investigating officer had taken its photographs. It was further contended that prosecution case is that no clue of the identity of deceased was found at the spot but surprisingly the name of deceased is recited in the crime inspection report, which shows that police knew the name of deceased. It was further SC No. 55/2011 Page no. 22 of 40 State Vs. Sanjay @ Pintu and others contended that once it is showed that the investigation was tainted, no reliance should be placed on the prosecution case.
40. Per contra, learned Additional Public Prosecutor refuted the said contentions by arguing that in order to prove the guilt of accused prosecution has proved all the necessary facts. It was contended that at the instance of accused one blood stained blade of scissor and jeans pant were recovered. Prosecution has also succeeded to connect the recovered blade with the murder of the deceased as the blood found on the blade was of the deceased. Similarly, blood found on the pant of the accused was of the deceased. Prosecution has also established that when accused assaulted the deceased he had sustained injury on his palm and the said injuries were caused by the above blade and this fact has been proved by the medical evidence. The reason furnished by the accused about his injury on his palm is false, which further strengthen the prosecution case. It was contended that no doubt the single evidence is not sufficient to prove the guilt of the accused but in the instant case prosecution is not relying upon a single piece of evidence. It was submitted that prosecution has proved the numerous evidence to complete the chain of circumstances, which is sufficient to prove the guilt of the accused.
41. Learned Additional Public Prosecutor candidly conceded that there are certain lapses in the investigation as pointed out by the learned defence counsel but argued that the said lapses are not fatal to the prosecution case in any manner.
42. As already discussed there is no ocular evidence qua accused Kapil. Admittedly, prosecution case is based on the circumstantial evidence and in order to prove the guilt of accused, prosecution has relied SC No. 55/2011 Page no. 23 of 40 State Vs. Sanjay @ Pintu and others upon the following circumstantial evidences:
(i) That blood stained blade of the scissor was recovered pursuant to the information furnished by the accused;
(ii) That blood found on the said blade was of the same group, which belonged to the deceased;
(iii) That as per expert opinion, the injuries found on the body of deceased could be caused by the said blade;
(iv) That one blood stained jeans pant was recovered pursuant to the information furnished by the accused;
(v) That the blood found on the said jeans pant was of human and as per prosecution, it belonged to the deceased;
(vi) That the said pant belonged to the accused;
(vii) That injuries were found on the right palm of the accused;
(viii) That the injuries were fresh in duration;
(ix) That the injuries found on the palm were possible by the said blade;
(x) That the explanation furnished by the accused about his injuries is false;
43. Though during the course of arguments, learned defence counsel did not dispute that the alleged recoveries were not in accordance with Section 27 of Indian Evidence Act, yet before proceeding further, I deem it appropriate to examine as to whether the alleged recoveries were in accordance with Section 27 of Indian Evidence Act or not?
44. Accused Kapil in his disclosure statement Ex.PW21/D SC No. 55/2011 Page no. 24 of 40 State Vs. Sanjay @ Pintu and others disclosed the following information:
"Sayed ka kaam tamam karne ke baad hum vaha se bhag liye. Meri pehni kamiz va jeans ki pant par kafi khoon ke chite pard gaye the. Shirt main raste mai Pahar Ganj pul se rail ke upar faik di thi. Tadha kaichi (scissor) fal (blade) main apne kamre ki chhat ke upar rak diya tha. Uske baad hum ne snan (bath) kiya. Tadha main khoon lagi apni jeans pant ko dhokar chhat par sukha diya. Jo mai kaichi fal tadha pant ko baramad kara sakta hu."
45. Thus, in his disclosure statement, accused furnished the following distinct information to the police; (i) that blood spots were appeared on his shirt and jeans pant; (ii) that he had thrown his shirt at the train from the Pahar Ganj over-bridge; (iii) that he had concealed the blade of scissor at the roof of his house; (iv) that he had washed his jeans pant and thereafter put at the roof of his house to get it dry. Pursuant to the said information, accused led the police party at the roof of his house and got recorded jeans pant and blade of the scissor.
46. In order to prove the said recovery, prosecution has relied upon the testimony of PW21 SI Deepak and PW24 inspector Suman Kumar Sharma. PW24 in his examination-in-chief deposed that after arrest, accused Kapil had made the disclosure statement Ex. PW21/D and disclosed that he had hide the blade of scissor at the roof of his room and he could get recovered the same. He further deposed that he had washed his pant, which he was wearing at the time of incident as there were blood stain marks and same was also at the roof of his room. Thereafter, accused led the police party at the roof of his room and produced one blade of the scissor and pant from the roof. PW21 deposed that the blade of the scissor was got recovered by the accused from the other waste material SC No. 55/2011 Page no. 25 of 40 State Vs. Sanjay @ Pintu and others lying at the roof. Since, the blade of scissor and pant were recovered from the roof of the room of the accused, it means that the said items were not visible to the public at large. No doubt the roof might be accessible to the other persons. But there is no evidence that the other occupants of the building used to visit the roof. On the converse, PW21 in his cross- examination deposed that no other person was found in the entire premises. Though 3-4 rooms were located on each floor but all the rooms were lying vacant and he further deposed that most of the rooms were closed and were giving the impression that the same were closed since long. During the trial, accused failed to lead any evidence contrary to the prosecution case. In the absence of any contrary evidence, I do not find any reason to disbelieve the testimony of witnesses examined by the prosecution. From the testimony of PW21 it appears that the roof was an isolated place. Further the crucial criteria for the admissibility of recovery is as to whether the recovered articles were visible to others or not. In State of H.P. v. Jeet Singh reported in AIR 1999 SC 1293, it was held that:
"Para 26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses SC No. 55/2011 Page no. 26 of 40 State Vs. Sanjay @ Pintu and others that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
(emphasis supplied)
47. Since, the recovery was affected from an isolated place, I am of the opinion that the above recovery is admissible under Section 27 of Indian Evidence Act.
48. Next question emerges as to whether prosecution has succeeded to connect the recovered blade of scissor with the commission of offence or not?
49. In order to connect the recovered blade of the scissor with the murder in question, prosecution has relied upon the testimony of PW15 Dr. Sreenivas M, PW20 SI Jagdish Parsad, PW21 SI Deepak, PW24 inspector Suman Kumar Sharma and FSL reports Ex. PW24/F and Ex. PW24/G.
50. Indisputably, several exhibits were lifted from the place of occurrence including blood on the gauze cloth piece and blood stained torn shirt. Moreover, this fact is also proved from the deposition of PW20 and PW24. All the exhibits that were lifted from the place of occurrence including above two exhibits were sent to the FSL Rohini. On analysis, blood found on the above two exhibits was found of Group 'B'. This establishes that the blood of the deceased was Group 'B'. The recovered blade of the scissor and jeans pant were also sent to FSL Rohini. As per report Ex. PW24/F, blood was detected on both the exhibits. As per report SC No. 55/2011 Page no. 27 of 40 State Vs. Sanjay @ Pintu and others Ex. PW24/G, on analysis said blood was found of human and the blood found on the blade of scissor was of Group 'B' whereas no reaction was found in the blood found on the jeans pant. In other words, the Group of blood found on the blade of the scissor tallied with the blood Group of the deceased. This is a relevant fact to connect the blade of the scissor with the murder in question. No doubt, this sole fact is not sufficient to prove the culpability of the accused because it is common fact that blood Group 'B' is quite common among people. But this is one of the relevant facts to connect the recovered blade of the scissor. Since, grouping of the blood found on the jeans pant could not be ascertained, it can not be said that blood found on the jeans pant of the accused belonged to the deceased or not.
51. The recovered blade of the scissor was also sent to PW15, who conducted post-mortem on the dead body to seek his opinion as to whether injuries found on the dead body were caused by the said blade or not. After examining the recovered blade of the scissor, PW15 opined vide his report Ex. PW15/F that all the injuries found on the dead body of the deceased are possible by the said blade and by any other weapon similar to it. During the trial, the testimony of PW15 to that extent remained unrebutted. Thus, the testimony of PW15 is another relevant evidence to connect the recovered blade of the scissor with the murder in question.
52. Admittedly, accused has not taken the plea that his blood Group is 'B', thus the blood found on the blade of the scissor does not belong to the accused. In these circumstances, it can safely be culled out that the recovered blade of the scissor is connected with the murder of the deceased.
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53. In order to establish that it was accused Kapil who inflicted the injuries to the deceased by wielding the said blade, prosecution alleged that at the time of inflicting injuries by the means of said blade, accused had sustained injuries on his right palm and fingers. To prove this fact prosecution has relied upon the testimony of PW14 Dr. Anju Rani and PW23 Dr. Ravleen. Initially, PW23 had examined the accused on August 24, 2011 at about 4.23 pm and the accused was referred to forensic department, thereafter, accused was examined by PW14 on August 25, 2011 at about 1.30 pm. PW14 examined the accused vide Ex. PW14/A and submitted her opinion vide Ex. PW14/D. As per Ex. PW14/D, all injuries could be possible by the examined weapon i.e. the recovered blade of the scissor and injury nos. 3, 4 and 5 were caused by sharp edged weapon.
54. But before relying upon the above report, prosecution has to prove that there was any injury on the right palm and fingers of the accused when he was arrested. Admittedly, at the time of arrest, investigating officer had not prepared the body inspection memo. In his cross-examination, PW24 candidly admitted that it was mandatory to prepare the body inspection memo at the time of arrest of the accused and further deposed that he failed to prepare the same. However, he failed to furnish any reason in this regard. At the time of arrest of accused Kapil, investigating officer had prepared the arrest memo (Ex. PW21/H), personal search memo (Ex. PW21/I), disclosure statement (Ex.PW21/D) and seizure memo of blade and pant (Ex. PW21/F & PW21/G). Perusal of the said documents reveal that in none of the said documents, it is recited that he had sustained any injuries at the time of stabbing the deceased. Even in his disclosure statement, he did not state that he had sustained any injuries when he inflicted the injuries to the deceased by wielding the said blade. Thus, there is no document on record to show that there was any injury on the right SC No. 55/2011 Page no. 29 of 40 State Vs. Sanjay @ Pintu and others palm of the accused when he was arrested on August 23, 2011.
55. As per arrest memo Ex. PW21/H, he was arrested on August 23, 2011 at about 7.40 pm. He was produced before the court of concerned Metropolitan Magistrate on August 24, 2011 and was taken on police remand for two days. He and accused Sanjay were taken on police remand on two counts; firstly to recover the weapon of offence and to arrest the co- accused namely Gutva & Mamu. In the remand application, it was no where mentioned that accused had sustained any injury on his right palm and he had to be produced before the doctor to ascertain whether the alleged injuries were possible by the recovered blade or not. If accused had sustained any injuries on his right palm and fingers, it should have been mentioned in the body inspection memo but investigating officer failed to prepare the same without any just and reasonable explanation. Nor he mentioned the alleged injuries in any of the documents that were prepared on August 23, 2011. Even he did not deem it appropriate to recite the same at the time of seeking police remand. On the converse, police remand was obtained to recover the weapon of offence and to apprehend other co- accused. When investigating officer had already recovered the weapon of offence at the instance of accused on August 23, 2011 where was the occasion to recover weapon of offence from him. Moreover, in his disclosure statement accused never disclosed that he could get recovered any other weapon of offence.
56. From the above, it becomes crystal clear that there is no scintilla of evidence on record to show that there was any injury on the body of accused Kapil particularly at the right palm/fingers till August 24, 2011 when he was produced before the concerned Court of Metropolitan Magistrate. Accused was first time produced before PW23 on August 24, SC No. 55/2011 Page no. 30 of 40 State Vs. Sanjay @ Pintu and others 2011 at about 4.23 pm. On examination, PW23 found two fresh injuries on his right palm/fingers and one old injury. In these circumstances, it can not be ruled out that the alleged injuries might be created after obtaining the accused on police remand. Moreover, the injuries were found fresh. Admittedly, the alleged incident had taken place during the intervening night of August 20 & 21, 2011. Had he stained injuries during the night of August 20 & 21, 2011, there would be some sign of healing process of the injuries, thus,PW23 would not record the injuries as fresh. Since, the injuries were found fresh, it further strengthen the defence version that the injuries were inflicted when accused was in police custody.
57. From the above, it becomes crystal clear that there was no injury on the person of accused Kapil particularly at his right palm/fingers when he was arrested on August 23, 2011. In these circumstances, the opinion of PW14 i.e. Ex. PW14/D is not helpful to the prosecution to establish that accused had sustained injuries in his right palm/fingers when he assaulted the deceased by wielding the recovered blade of the scissor.
58. From the ongoing discussion, I am of the view that prosecution has succeeded to establish that the blade of the scissor was recovered at the pointing out of the accused and the same was used in the commission of offence. However, prosecution has failed to establish that accused had sustained injury on his right palm/finger when he wielded the said blade in the commission of offence. Prosecution has also failed to establish that there was any injury on the right palm/fingers of the accused when he was arrested on August 23, 2011. Prosecution has also failed to establish that blood found on the jeans pant of the accused was of deceased. Thus, the only proved incriminating evidence against the accused is the recovery of blade at his pointing out and connection of blade SC No. 55/2011 Page no. 31 of 40 State Vs. Sanjay @ Pintu and others with the commission of offence. Now question arises as to whether this sole piece of evidence is sufficient to prove the chain of circumstances?
59. The question as to whether recovery of incriminating article is ipso-facto sufficient to connect the accused with crime was dealt with by the High Court of Delhi in Kalloo Passi versus State, 2009(2) JCC 1206. Relevant para are 19 to 24 and same are reproduced as under:
Para 19: In the decision reported as Narsinbhai Haribhai Prajapati v. Chhatrasinh & Ors. AIR 1977 SC 1753 the Supreme Court had held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the houses of accused are wholly insufficient to sustain the charge of murder against the accused.
Para 20: In the decision reported as Surjit Singh v. State of Punjab AIR 1994 SC 110 a watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof.
Para21. In the decision reported as Deva Singh v State of Rajasthan 1999 CriL.J 265 Supreme Court had held that merely because a knife is alleged to have been recovered at the instance of the accused would not lead to a conclusion that the accused was the perpetrator of the crime of the murder.
Para22 In the decision reported as Prabhoo v State of U.P. AIR 1963 SC 1113 a kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Holding that it is well settled that circumstantial evidence must be such as to lead to a conclusive which on any reasonable hypothesis is consistent only with the guilt of the accused and not with his innocence and that from the mere production of the blood stained articles by the accused, SC No. 55/2011 Page no. 32 of 40 State Vs. Sanjay @ Pintu and others one cannot come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with guilt of accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and the accused might have produced the said articles when interrogated by the police, the Supreme Court acquitted the accused.
Para23: In the instant case, there is no evidence to show that a rehri was used by the appellant in committing the murder of the deceased or in the transportation of the body. The only evidence pertaining to the rehri is the deposition of Ramjiwan PW3 that he had seen the appellant with a rehri on the day the deceased had gone missing.
Para24 Therefore, in view of afore-noted judicial decisions, we hold that mere recoveries of the blood stained clothes; pieces of two daggers and a rehri at the instance of the appellant do not lead to a conclusion that the appellant is the perpetrator of the crime.
60. In C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
61. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
SC No. 55/2011 Page no. 33 of 40 State Vs. Sanjay @ Pintu and others (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
62. In State of U.P. v. Ashok Kumar Srivastava, 1992 Crl. LJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
63. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Court as far back as in1952 in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first SC No. 55/2011 Page no. 34 of 40 State Vs. Sanjay @ Pintu and others instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
64. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, Apex Court held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
"(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 SC No. 55/2011 Page no. 35 of 40 State Vs. Sanjay @ Pintu and others (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
65. These aspects were highlighted in State of Rajasthan v. Raja Ram 2003 (8) SCC 180, State of Haryana v. Jagbir Singh and Anr.
2003 (11) SCC 261.
66. In the light of the above settled proposition of law, I am of the opinion that the sole incriminating evidence of the recovery of blade of the scissor and its connection with the murder in question are not sufficient to prove the culpability of the accused.
67. As already discussed that accused Kapil was produced before the concerned Court of Metropolitan Magistrate on August 24, 2011 and he was taken on police remand for two days on the grounds that recovery of weapon was to be affected and the co-accused were to be arrested. If the police remand was obtained to recover the weapon of offence, it means that no weapon of offence was recovered from the accused on August 23, 2011. If weapon of offence had already been recovered from the accused on August 23, 2011, there was no reason for the investigating officer to recite in the remand application that his custody was required to recover the weapon of offence. Thus, the remand application is contrary to the prosecution case and there is no explanation from the prosecution in this regard. This further cast a doubt about the genuineness of the alleged recovery.
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68. Now coming to the contentions relating to the tainted investigation.
69. It is admitted case of the prosecution that crime team was summoned at the spot and he had taken various photographs which are exhibited as Ex. PW1/1 to PW1/25. Photographs Ex. PW1/15 and PW1/20 show that one comb and purse containing some documents were also found at the place of occurrence. PW24 in his cross-examination, candidly admitted that he had found one purse and comb at the place of occurrence and the same were got photographed. However, he deposed that he did not seize the said purse and comb as the same were not relevant. He further deposed that he did not try to pick up chance prints from the said purse and in fact no investigation was done qua purse and comb, thus he cannot say whether the same belonged to the deceased or any of the assailants. He further deposed that though he knew that DNA profile could be developed from the comb but no effort was made in this regard as he did not seize the same. If the purse and comb were not relevant in the matter then question arises why the same were got photographed. Admittedly, the photographs were taken at the initial stage of the investigation and at that time even the identity of deceased was not known to the police. At such threshold stage of the investigation, it is really surprising how investigating officer abled to form an opinion that the purse and comb would not be relevant during the investigation. Thus, the reason furnished by PW24 for not seizing the purse and comb does not inspire any confidence. Similarly, PW6 on the one hand deposed that the photographs Ex. PW1/1 to PW1/25 were taken in his presence and he identified all the photographs. However, in his cross- examination he deposed that no purse was found near the dead body. The simple question arises if no purse was found near the dead body where was the occasion for the photographer of the crime team to take the SC No. 55/2011 Page no. 37 of 40 State Vs. Sanjay @ Pintu and others photograph of purse and comb. This shows that the things were not happened in the manner in which prosecution tried to project before the Court. However, PW1 photographer admitted in his deposition that Ex. PW1/20 depicted the purse but he did not know to whom it belonged to. From the above, it becomes clear that the investigation in this regard is defective.
70. PW24 deposed that during investigation, it was revealed that the informant had made a call to the PCR from mobile No. 9266503959 and on enquiry, it was revealed that the said connection was in the name of Abdul Salam son of Mohd. Mukeem. On enquiry, he disclosed that his documents were misplaced to which he had lodged a non-cognizable report with the police. He further deposed that it appeared that the said lost documents were used in getting the connection. However, he admitted that he did not record the statement of Abdul Salam in this regard nor he verified about the factum of registration of non-cognizable report. He further admitted that he did not try to ascertain from where the alleged connection was sold to the informant. He admitted that the photograph of Abdul Salam was pasted on the application form of the said phone connection and he did not interrogate Abdul Salam in this regard. This shows that no sincere efforts were made to trace out the person who had informed the police about the incident. Even as per the version of PW24, informant had procured the said phone connection by using forged documents of one Abdul Salam, in such a situation, it was the duty of the PW24 to identify that informant and to take appropriate action against him in accordance with law. Thus, in this regard the investigation is not satisfactory.
71. Further the prosecution case is that the identity of deceased could not be ascertained despite efforts made by the police officials.
SC No. 55/2011 Page no. 38 of 40 State Vs. Sanjay @ Pintu and others However, it is admitted case of the prosecution that crime team had inspected the spot and the in-charge of crime team had submitted his report to the investigating officer at the spot. The said report is exhibited as Ex. PW6/A. In the said report, the name of deceased is mentioned as Sahil aged about 32 years. PW6 SI Dhan Singh, in his cross-examination deposed that SI Jagdish told him the name of deceased. On the other hand, PW24 deposed that he did not know at whose instance PW6 had mentioned the name of deceased in his report but stated that he did not try to seek any clarification from PW6 in this regard. Thus, there is material contradiction between the testimony of PW6 and PW24 as PW24 deposed that he was not aware about the identify of the deceased whereas PW6 deposed that the identity of the deceased was revealed at the spot itself and accordingly he had mentioned the same in his report.
72. It is admitted case of the prosecution that one blood stained shirt was found at the place of occurrence and PW24 deposed that the said shirt was belonged to the deceased. However, in his next breath he deposed that he had not mentioned this fact in his charge-sheet and the charge-sheet is silent on this point. If the shirt was belonged to the deceased why there is no reference in this regard in the charge-sheet. It is not clear on what basis, PW24 had arrived at the conclusion that the said shirt was belonged to the deceased.
73. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has also failed to bring home the guilt of accused Kapil beyond the shadow of all reasonable doubts.
Conclusion:
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74. In view of the above discussion, I am of the considered opinion that prosecution has miserably failed to prove the guilt of accused persons namely Sanjay @ Pintu, Gulab @ Mamu and Ibrahim @ Gutva and prosecution has also failed to bring home the guilt of accused Kapil beyond the shadow of all reasonable doubts, thus, I hereby acquit all the accused persons for the offence punishable under Section 302/34 IPC.
Announced in the open Court
On this 22nd day of January, 2013 (Pawan Kumar Jain)
Additional Sessions Judge-01,
Central, THC/Delhi
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