Delhi District Court
State vs 1. Dharmender Kumar, S/O Puran Chand, on 20 September, 2013
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL. SESSIONS JUDGE
(NORTHEAST) : KARKARDOOMA COURTS, DELHI
SC No. 25(I)/2012
FIR No. 38/2007
PS Shahdara
Under Section 302/364/120B/34 IPC
Case ID 02402R0377582007
State Versus 1. Dharmender Kumar, S/o Puran Chand,
R/o Village Behta Hazi Pur, P.S.Loni,
DistrictGhaziabad (U.P.) (in JC)
2. Deepak, S/o Mange Ram,
R/o H. No. 589, Gali No. 1, Balram
Nagar, PSLoni, DistrictGhaziabad (U.P.)
(in JC)
3. Harish @ Pintoo, S/o Bedi Ram,
R/o Village Nekpur, PSMurad Nagar,
DistrictGhaziabad (U.P.) (in JC)
Date of Institution 27.09.2012
Date of hearing Final Arguments 08.08.2013
Date of Judgment 20.09.2013
J U D G M E N T
1. In the present case, all the three accused are facing trial for the offences punishable U/s 120B/364/302/34 IPC. Accused FIR No. 38/2007, PSShahdara Page 1/38 Deepak @ Deepu and Harish @ Pintoo are also facing trial for additional charges for the offences punishable U/s 404/411 IPC.
2. It has been stated in the chargesheet that on 31.01.2007, an information was received at the Police Station Shahdara, regarding recovery of a dead body in a park, in front of Fire Brigade Office, on which, DD No. 16A was registered at PSShahdara. Copy of DD No. 16 was sent to ASI Dal Chand through Ct. Ajay, for investigations.
3. It is further mentioned that on reaching the spot, ASI Dal Chand found a dead body of an unknown person and the PCR Van was also present there and in the meantime, the SHO, alongwith other police officials also reached the spot. The Crime Team and the Photographer also came to the spot and investigations were done. ASI Dal Chand made the endorsement on DD No. 16A and prepared the rukka, on the basis of which, case FIR No. 38/07, U/s 302 IPC was registered at PSShahdara.
4. During investigations, SHO, Inspector Raja Ram Yadav prepared the site plan and the Crime Team also investigated the spot and photographs of the spot and the dead body were taken. The dead body was shifted to GTB Hospital for postmortem. The earth control, the blood control, the blood stained stones and the "Chappals" of the FIR No. 38/2007, PSShahdara Page 2/38 deceased were also seized.
5. During investigations, the deceased was identified on 02/02/2007, as Sanjay, S/o Ridku, R/o Village Behta Hazipur, PS Loni, DistrictGhaziabad (U.P.). After postmortem, the dead body of the deceased was handed over to its relatives on 02/02/2007 itself.
6. During investigations, the IO recorded the statements of the brother and uncle of the deceased, who disclosed that accused Dharmender had called the deceased Sanjay from his residence on 30.01.2007 at about 11.30 a.m. and since then, the deceased had not returned back to his residence. On the statements of Sh. Om Prakash, brother of the deceased and Jogender, uncle of the deceased, accused Dharmender was apprehended on 08.02.2007, who made a disclosure statement regarding commission of the offences. He disclosed to the police that the accused Harish and his uncle were having a dispute at Village Behta Hazipur, in respect of a plot there, with one Soorat Singh, who was a close relative of the deceased. It was also disclosed that accused Harish intended to kill the said Soorat Singh, but the deceased Sanjay was close to said Soorat Singh and therefore, there was a suspicion to him that his planning may be disclosed to Soorat Singh by deceased Sanjay. Therefore, as per conspiracy, the deceased FIR No. 38/2007, PSShahdara Page 3/38 Sanjay was called by him from his residence and he alongwith co accused Deepak and Harish took him to DDA ground, near Loni Gol Chakkar, behind the wall of MCD Primary School, where, they committed his murder.
7. During the investigations, the accused Harish was arrested on 23.05.2007 and he also admitted to commit the offence. In pursuance to his disclosure statement, he took the police party to his residence at Village Nek Pur, District Ghaziabad (U.P.) and got recovered the purse of the deceased.
8. During investigations, the accused Deepak was arrested on 02.06.2007, who also disclosed about committing the murder of the deceased and in pursuance to his disclosure statement, he took the police party to his residence at Balram Nagar, Loni, Ghaziabad (U.P.) and got recovered the golden chain of the deceased.
9. During investigations, the IO recorded the statements of the various witnesses and he also got the Test Identification Parade of the recovered purse and golden chain, conducted, wherein, the said articles were correctly identified by the witnesses.
10. During investigations, the various exhibits were also sent to the FSL for expert opinion and after completion of investigations, FIR No. 38/2007, PSShahdara Page 4/38 the chargesheet was filed in the Court and the accused were sent up for trial.
11. It is pertinent to mention here that initially the chargesheet was filed only against the accused Dharmender and the remaining two accused were placed in column No. 2 as the said two accused could not be arrested till that time. The accused Deepak and Harish were arrested later on and therefore, the supplementary charge sheet was filed against them on 17.08.2007.
12. Vide order dated 24.09.2007, the charges for were framed against all the accused persons, by the Ld. Predecessor of this Court, to which, they pleaded not guilty and claimed trial.
13. During the course of trial, the prosecution has examined the following witnesses:
(i) PW1, ASI Rakesh Kumari, the Duty Officer, who has proved DD No. 16A dated 31/01/2007, as Ex. PW1/1.
(ii) PW2, Ct. Anil Kumar, who alongwith ASI Dal Chand, went to the spot on 31.01.2007, after receiving DD No. 16A and joined investigations.
(iii) PW3, Jogender Singh, S/o Sh. Kanhaiya Lal, the uncle of deceased Sanjay, who deposed about taking of deceased Sanjay, FIR No. 38/2007, PSShahdara Page 5/38 by accused Dharmender on 30/01/2007.
(iv) PW4, Soorat Singh, S/o Charan Singh, who deposed about his previous enmity with accused Harish @ Pintoo.
(v) PW5, Om Prakash, the brother of the deceased Sanjay, who has last seen the deceased on 30.01.2007, at about 11.30 a.m., with accused Dharmender.
(vi) PW6, Beero, W/o Sh. Soorat Singh, who had deposed about the threat extended to her, on 29/01/2007, by accused persons.
(vii) PW7, Ct. Mahabir Singh, the Photographer of Mobile Crime Team, who took the photographs of the spot and dead body from various angles.
(viii) PW8, HC Arvind, who joined the investigations with IO Inspector Hira Lal on 08.02.2007, 23/05/2007, 24/05/2007, 02/06/2007 and 04/06/2007.
(ix) PW9, Ct. Upender Singh, another witness, who joined the investigations with IO Inspector Hira Lal on 08.02.2007, 23/05/2007, 24/05/2007, 02/06/2007 and 04/06/2007.
(x) PW10, HC Arvind Parashar, the MHC(M) of PS Shahdara.
(xi) PW11, HC Vinod Kumar, who deposited the exhibits at CFSL, Kolkatta.
FIR No. 38/2007, PSShahdara Page 6/38
(xii) PW12, ASI Yogender Singh, who joined the investigations with IO Inspector Hira Lal on 08.02.2007, 23/05/2007, 24/05/2007, 02/06/2007 and 04/06/2007.
(xiii) PW13, SI Om Prakash, who got the postmortem of the dead body of the deceased Sanjay, conducted at GTB Hospital, on 02/02/2007.
(xiv) PW14, ASI Dal Chand, who went to the spot on receipt of DD No. 16A and conducted the initial investigations.
(xv) PW15, HC Rambir Singh, the motorcycle rider, who delivered the copy of the FIR to the senior officers. (xvi) PW16, SI Mukesh Kumar Jain, Draftsman, who prepared the scaled site plan of the spot, Ex.PW16/A. (xvii) PW17, HC Santosh Kumar, Duty Officer, who proved the registration of the case and proved the FIR as Ex.PW17/A. (xviii) PW18, Dr. Arvind Kumar, Lecturer, at Department of Forensic Medicine, UCMS & GTB Hospital, Delhi, who conducted the postmortem on the dead body of deceased Sanjay and proved his postmortem report as Ex.PW18/A. (xix) PW19, HC Satinder, who arrested the accused Deepak in Case FIR No. 40/2007 of PS Special Cell, Lodhi Colony. FIR No. 38/2007, PSShahdara Page 7/38 (xx) PW20, Ct. Ajay Kumar, who handed over DD No. 16A to ASI Dal Chand for investigations.
(xxi) PW21, Inspector Dinesh Kumar, Incharge of the Mobile Crime Team, NorthEast District, who inspected the scene of crime and prepared his visitation report Ex. PW21/A. (xxii) PW22, HC Parvesh Kumar, who joined the investigations with HC Satinder, at the time of arrest of accused Deepak in case FIR No. 40/2007, of PS Special Cell, Lodhi Colony. (xxiii) PW23, Ajay Gupta, Ld. ACMM, who conducted the TIP proceedings of golden chain and purse of the deceased. (xxiv) PW24, ASI Udaivir Singh, who joined the investigations with HC Satinder, at the time of arrest of accused Deepak, in case FIR No. 40/2007, of PS Special Cell, Lodhi Colony. (xxv) PW25, Inspector Hira Lal, the first IO of the present case. (xxvi) PW26, ASI Sanjeev Lochan, the IO of case FIR No. 40/2007, PSSpecial Cell, Lodhi Colony, U/s 25 of the Arms Act.
(xxvii) PW27, Smt. Reshma, W/o Nazruddin, registered owner of Bajaj scooter, make Chetak, bearing registration No. DL5SN4369.
FIR No. 38/2007, PSShahdara Page 8/38
(xxviii) PW28, Inspector Amrit Kumar, second IO of the present case.
14. After completion of the prosecution evidence, statements of all the accused persons U/s 313 Cr.P.C. were recorded by the Ld. Predecessor of this Court on 25.08.2013, wherein, they have denied all the incriminating evidence against them and have deposed that they are innocent and have been falsely implicated in this case. Accused Harish @ Pintoo has also stated that he has been implicated in this case by PW Jogender and Om Prakash, at the instance of Smt. Beero and her husband Surat, as they were having enmity with him and his family members. He has also stated that neither he nor his family members ever visited the plot of the house of Smt. Beero and Soorat Singh, after 2005.
15. Accused Dharmender has also stated that his brother was lifted by the police of PSLoni on 31.01.2007 and therefore, he appeared before the police officials in Loni Police Chowki on 31.01.2007 at 11.00 p.m. and he remained in their custody for the whole night and next day and thereafter, the police officials from Delhi were called and he was taken to PSShahdara and falsely implicated in this case.
FIR No. 38/2007, PSShahdara Page 9/38
16. Accused persons have failed to lead any defence evidence, despite opportunity.
17. After completion of trial, final arguments were initially addressed by Sh. Om Prakash, Ld. Chief Prosecutor and thereafter by Sh. Sanjay Kumar, Ld. APP for the State. Sh. Ramesh Saraf, Advocate, for accused Deepak, Sh. Malkhan Singh, Advocate for accused Harish and Sh. Mohd. Hasan, Advocate for accused Dharmender have addressed the arguments on behalf of the accused persons.
18. It has been argued by the Ld. APP for the State that PW3 Jogender Singh, the uncle of the deceased and PW5 Om Prakash, the brother of the deceased, have both deposed in the Court that the accused Dharmender had taken the deceased with him on 30.01.2007 and thereafter, the deceased had not returned back to his residence. He has further argued that PW4 Soorat Singh and his wife PW6 Smt. Beero have both deposed about the motive, to commit the offences. Both these witnesses have deposed that the accused persons were having enmity with them, as they had won the litigation regarding the plot, at which, their house was constructed. It is categorically stated by both these witnesses that the grandfather of accused Harish was FIR No. 38/2007, PSShahdara Page 10/38 having the litigation with PW6 Smt. Beero, in which, Smt. Beero had won the possession of the plot.
19. The Ld. APP has also argued that on the basis of the last seen evidence of PW3 Jogender Singh and PW5 Om Prakash, the accused Dharmender was arrested on 08.02.2007 and thereafter, he made disclosure regarding the commission of offences, alongwith co accused Harish and Deepak and in pursuance to his disclosure statement, accused Harish was arrested on 23.05.2007 and he got recovered the purse of deceased on 25.05.2007 from his residence, at his native village. It is also argued that in pursuance to the disclosure statement of accused Dharmender, the accused Deepak was arrested on 02.06.2007 and he also got recovered a golden chain of the deceased, from his residence. The Ld. APP has also argued that the purse and golden chain of the deceased have been duly identified by the witness in the Test Identification Parade. It has also argued that the police officials have proved the entire investigations done by them and all the prosecution witnesses have succeeded in proving the prosecution case, against all the accused persons, beyond a shadow of doubt and therefore, all the three accused persons be held guilty and convicted for the offences punishable U/s 120B/364/302/34 IPC. FIR No. 38/2007, PSShahdara Page 11/38
20. On the other hand, Mohd. Hasan, Advocate for accused Dharmender has argued that there is no evidence on record to connect the accused Dharmender with the offences, as alleged against him. He has argued that PW3 Jogender Singh identified the dead body of the deceased on 02.02.2007, but all the relatives, friends and parents of the deceased have failed to lodge any missing complaint, till 02.02.2007. He has also argued that PW6 Smt. Beero has not disclosed the names of accused Dharmender and Deepak, in her deposition and no enquiries were made by the relatives of the deceased from Dharmender, till the date of his arrest on 08.02.2007. He has also argued that there is no independent witness of arrest of accused Dharmender. He has also argued that no previous complaint was lodged by PW4 Soorat Singh and PW6 Smt. Beero, regarding any threat extended by the accused persons. He has also argued that the crossexaminations of the witnesses has demolished the entire prosecution case and therefore, the accused Dharmender may be acquitted.
21. Sh. Ramesh Saraf, Advocate for accused Deepak, has argued that the accused Deepak was arrested only on the basis of the disclosure statement of coaccused and there is no independent public FIR No. 38/2007, PSShahdara Page 12/38 witness, either to his arrest or disclosure or any recovery, at his instance. He has also argued that the golden chain had been planted on the accused, only to implicate him in the present case. He has also argued that the brother of deceased, namely, PW5 Om Prakash, has not stated anything about the recovery of any article of his deceased brother and there was no motive, for accused Deepak to commit the alleged offences. He has also argued that the chain of evidence is broken at various places and therefore, the prosecution has failed to prove its case, beyond a shadow of doubt and therefore, all the accused be acquitted, in the present case.
22. Sh. Malkhan Singh, Advocate for accused Harish has argued that there is no material evidence against the accused Harish, except the alleged recovery of the purse of deceased Sanjay from his native village. He has also argued that the purse was having no monetary value and therefore, it was highly unprobable that the accused was keeping the said purse with him. There was no fruitful purpose for keeping the said purse with him, as he was not using the said purse. He has also argued that the alleged recovery of purse was affected on 24.05.2012 i.e. after about 4 months of the alleged offence and therefore, not much weight can be attributed to the said recovery. FIR No. 38/2007, PSShahdara Page 13/38 He has also argued that the Judicial Test Identification Parade was also improper as the purses, which were produced before the Ld. M.M., for mixing with the case property, were in unsealed condition. He has further argued that even the recovery of the purse is doubtful as no independent public person was made a witness to the alleged recovery. He has further argued that a false motive has been attributed to accused Harish and there are several material contradictions in the deposition of the prosecution witnesses, which makes their testimonies doubtful. He has also argued that PW18 Dr. Arvind, who had conducted the postmortem of the dead body, had categorically stated in his crossexamination, that the dead body was having the antemortem injuries, which were about 24 hours old and therefore, an inference has to be drawn that the deceased was alive till 01.02.2007 and therefore, not much weight can be attributed to the deposition of PW3 Jogender Singh and PW5 Om Prakash.
23. All the Ld. defence counsels have argued that the time lag in the 'last seen', evidence and the recovery of the dead body of the deceased and the lack of motive, makes the whole prosecution case, doubtful and the chain of events is broken at several places and therefore, keeping in view the settled principles of law, the benefit of FIR No. 38/2007, PSShahdara Page 14/38 doubt may be extended to the accused persons and all of them may be acquitted for the offences alleged against them.
24. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. APP for the state and the Ld. defence counsels. Perusal of the record shows that the case of the prosecution is entirely based on "Circumstantial Evidence" and "Last seen theory". The prosecution has also relied upon the recovery of personal articles of the deceased, at the instance of the accused persons, in pursuance to their disclosure statements.
25. It has been held by the Hon'ble Supreme Court of India, in case titled as 'Ashok Kumar Chatterjee Vs. State of M.P.', reported as 'AIR1989SC1890, as under:
31. This appeal arises against the concurrent findings of facts except for the modification of the sentence made by the High Court. There is no direct evidence to prove this case and the conviction is founded solely on circumstantial evidence. This Court in a line of decisions has consistently held 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;FIR No. 38/2007, PSShahdara Page 15/38 (2)
those circumstances should be a definite tendency unerringly pointing towards guilt of the accused;(3)
the circumstances, taken cumulatively; should from o 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. (See Gambhir v. State of Maharashtra MANU/SC/0067/1982 : 1982CriLJ1243).
(emphasis supplied by me)
26. It is also held by the Hon'ble Supreme Court of India, in case titled as 'Narendra Singh and Anr. Vs. State of M.P.', reported as '2004CriLJ2842', as under:
30. It is now wellsettled that benefit of doubt belonged to the accused. It is further trite that suspicion, however, grave may be cannot take place of a proof. It is equally wellsettled that there is a long distance between 'may be' and 'must be'.
(emphasis supplied by me)
27. It is also held by the Hon'ble Supreme Court of India, FIR No. 38/2007, PSShahdara Page 16/38 in case titled as 'Bodh Raj @ Bodha & Ors Vs. State of Jammu & Kashmir', reported as ''AIR2002SUPREME COURT 3164', as under:
"14. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved any beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
(emphasis supplied by me) MOTIVE
28. In the present case, in order to impute the "motive" to the accused persons, to commit the alleged offences, the prosecution has examined two public witnesses, namely, PW4 Sh. Soorat Singh S/o. Sh. Charan Singh, and his wife, PW6, Smt. Beero. PW4 Soorat Singh, is the permanent resident of the same native village, to which, FIR No. 38/2007, PSShahdara Page 17/38 the deceased Sanjay and his father belong. These two witnesses are having no blood relation with the other public witnesses and the family of the deceased Sanjay, but, PW4 has stated that he was treating PW3 Sh. Joginder Singh, the real uncle of the deceased Sanjay, as his brother and had stated "RISHTEY MEIN MERE GAON KA BHAI LAGTA HAIN".
29. PW4 Sooorat Singh has also deposed that on 29/01/2007, had gone to Shahdara for purchasing the articles for marriage of his son Anil and when, he returned back to his home in the evening, his wife Smt. Beero told him that accused Dharmender, Harish @ Pintoo and Deepak had come on motorcycle and at that time, accused Harish was carrying a sword and he threatened her to vacate the plot and uttered "IS PLOT KO KHALI KAR DO NAHIM TO TERE PATI KO JINDA NAHIN CHHORENGE AUR TERE HIMAYATIYON AUR UNKE PARIVAR WALON KO BHI DEKH LUNGA". He has further stated that the plot in question was in the name of his wife Beero (PW6) and there was a litigation in respect of the said plot since the year 1980, with Sh. Bedi Ram, the father of the accused Harish @ Pintoo and in the year 2005, the Court had decided the matter in favour of his wife and the possession of the plot was restored FIR No. 38/2007, PSShahdara Page 18/38 to them. He has further stated that the said Bedi Ram, father of the accused Harish, came to their plot many times and accused Harish had also accompanied them and they had threatened him to vacate the plot and complaints were lodged to higher police officials. He has further stated that deceased Sanjay had advised accused Harish @ Pintoo, Dharmender and Deepak that he (i.e. Soorat Singh) was his uncle and therefore, he should not be troubled, on which, accused Harish had stated that though the deceased was his friend, but, he was favouring Soorat Singh. This witness has also deposed that he was having strong suspicion that the accused persons could have killed Sanjay.
30. PW6 Smt. Beero has also deposed in a similar manner and has stated that accused Harish used to visit her house alongwith gundas, after she got the possession of her plot under Court orders, and he threatened them to vacate the plot by saying "MAKAN KHALI KAR DO NAHI TO TERE AADMI KO MAR DENGE".
This witness has further stated that even, last year, all the three accused persons came on a motorcycle and started using filthy language and at that time, accused Harish was carrying a sword and was waving the same in the air and he threatened them " HUM TUMHE AUR TUMHARE HIMAYATIYO KO DEKH LENGE".
FIR No. 38/2007, PSShahdara Page 19/38
31. By examining these two witnesses, the prosecution has tried to establish the motive for commission of offences by the accused persons. In his cross examination, PW4 had admitted that on 29/01/2007, he had already left his house in the morning at about 9.00 a.m. and he returned back to his house only in the evening at about 8.009.00 p.m. It indicates that he was not present at his house when, the accused persons allegedly visited his house on 29/01/2007 and threatened his wife. This witness has admitted that his wife Smt. Beero had told him about the threat extended to her by accused Harish. He has also admitted that no compliant in writing was lodged by him to any person regarding the threats. He has also admitted that even in his statement, under section 161 Cr.P.C., he has not disclosed that deceased Sanjay had advised accused Harish @ Pintoo, Dharmender and Deepak that he i.e. (PW4 Soorat Singh) was uncle of Sanjay and therefore, he should not be troubled.
32. In her cross examination, PW6 Smt. Beero has admitted that her husband Soorat Singh had left her house on 29/01/2007 for some purchasing and her sons Anil and Shiv Kumar had also left their house in the morning at about 8.00 a.m. She has also admitted that no compliant was lodged with any police official regarding the threats FIR No. 38/2007, PSShahdara Page 20/38 extended by the accused persons.
33. It has been held by Hon'ble High Court of Delhi in case titled as Chet Ram Vs. State, reported as 1996 JCC 579, as under:
"17. While on motive we would like to emphasise that motive alone is not sufficient in a case of circumstantial evidence to convict a person. Along with motive, there should be some further corroborative evidence. There is none in the present case. The element of motive is the only point of difference between the case of the appellant and that of coaccused Ramesh. We find that the evidence of motive led by the prosecution is neither sufficient to support the theory of motive nor do we consider it safe to convict the appellant in the facts of the present case on the alleged theory of motive alone. In a case of circumstantial evidence motive helps in the process of presumptive reasoning. But by itself is not sufficient to convict a person."
(emphasis supplied by me)
34. Perusal of the testimonies of these two witnesses indicate that the prosecution has attempted to establish previous enmity between the family of these two witnesses and the accused Harish @ Pintoo, due to some previous litigations between them as a motive to commit the murder of deceased Sanjay. But, the perusal of their testimonies also indicate that accused persons have never extended any threat to deceased Sanjay or his family members. Even if, the threats, if any, extended by the accused Harish are deemed to be correct 'perse', the same indicates that he had threatened only PW6 Smt. FIR No. 38/2007, PSShahdara Page 21/38 Beero, to vacate the plot and otherwise, he would kill her husband. He had not extended any threat that he would kill her other well wishers also. The perusal of the testimonies of these two witnesses indicate that a very weak motive has been attributed to the accused persons and no material evidence has come on record to impute the motive, on the accused persons, to commit the murder of deceased Sanjay. Last Seen Evidence 35 The prosecution has examined, Sh. Om Prakash S/o. Sh. Ridku, the brother of the deceased Sanjay as PW5. Sh. Joginder Singh S/o. Kanhaiya Lal, uncle (chacha) of deceased Sanjay has been examined as PW3. These two witnesses have been examined by the prosecution to establish the fact that the deceased Sanjay was lastly seen in the company of the accused Dharmender, just prior to his death. PW3 Joginder Singh S/o. Kanhaiya Lal has deposed that deceased Sanjay was his nephew and on 30/01/2007, at about 11.30 a.m., he was present at the house of his brother Ridku Singh (father of the deceased Sanjay) and accused Dharmender came there and called his nephew Sanjay and took him somewhere and thereafter, deceased Sanjay did not return back till 31/01/2007. He has further stated that he told this fact to his brother Ridku Singh that the accused Dharmender FIR No. 38/2007, PSShahdara Page 22/38 has taken Sanjay with him and thereafter, they searched for deceased Sanjay, but, they could not trace him. This witness has further deposed that on 01/02/2007, in the evening, he came to know at Loni Border that one dead body, matching the description of deceased Sanjay, was removed by the police of PS Shahdara from the DDA Park and thereafter, he alongwith his nephew Om Prkash went to PS Shahdara, where, the police officials told them that the dead body has been preserved at GTB Hospital and they were asked to come on the next morning. This witness has further deposed that on 02/02/2007, he alongwith his nephew Om Prakash again went to PS Shahdara and thereafter, they went to GTB Hospital, where, the dead body of his nephew (deceased Sanjay) was shown to them and they identified the deceased Sanjay.
36. PW3 Joginder has further deposed that on 08/02/2007, he again joined the investigations with the police officials and at about 4.30 p.m., the accused Dharmender was apprehended from the three wheeler stand near Gokalpuri Chowk.
37. PW Om Prakash S/o Ridku, the brother of the deceased Sanjay has also deposed that on 30/01/207, at about 11.30 a.m., he was taking meal in his room and his uncle Joginder was also present there FIR No. 38/2007, PSShahdara Page 23/38 at that time and in the meantime, the accused Dharmender came there and told his brother Sanjay (since deceased) "MERE SATH CHAL, KUCH KAM HAI". This witness has further deposed that he gave Rs. 12,000/ to deceased Sanjay for bringing material for his business and when, Sanjay left the house, he was having his mobile phone with him and was wearing a golden chain in his neck. This witness has further stated that Sanjay did not return back on that day and he did not turn up even on the next day. He has further stated that on 01/02/2007, when, he reached near GolChakkar Loni, in search of his brother Sanjay, somebody told him that a dead body has been recovered form DDA Ground and thereafter, he went to police station, where, he was informed that the dead body was kept at GTB Hospital and thereafter, he went to GTB Hospital and identified the dead body of Sanjay.
38. Perusal of the testimony of these two witnesses indicates that none of these witnesses has disclosed anything about the accused Deepak and Harish @ Pintoo and none of these witnesses has disclosed anything about the presence of Sh. Ridku Singh, the father of the deceased Sanjay, at their house on 30/01/2007, when, accused Dharmender allegedly took deceased Sanjay with him. The father of FIR No. 38/2007, PSShahdara Page 24/38 the deceased Sanjay, namely, Sh. Ridku Singh, has not been examined before the Court during the trial and he is not even a witness, in the present case. No explanation has come on record, as to why, Sh. Ridku Singh, the father of the deceased Sanajy, was not made a witness to substantiate and corroborate the testimonies of PW3 Joginder and PW5 Om Prakash.
39. Perusal of the record further shows that both these witnesses i.e. PW3 Joginder Singh and PW5 Sh. Om Prakash and the other family members of deceased Sanjay have failed to lodge any missing report with the police officials till 02/02/2007. No explanation has been given by any witness, in this regard. Neither the aforesaid witnesses nor the other relative of the deceased, went to the house of accused Dharmender to know the whereabouts of deceased Sanajy, till the identification of the dead body of deceased at GTB Hospital on 02/02/2007.
40. Furthermore, PW3 Joginder Singh has categorically stated that he went to the police station Shahdara with PW5 Om Prakash on 01/02/2007, where, the police officials asked them to come in the morning as the dead body has already been preserved at GTB Hospital and on the next day, on 02/02/007, he identified the dead FIR No. 38/2007, PSShahdara Page 25/38 body of deceased Sanjay at the mortuary of GTB Hospital. But, PW5 Om Prakash has categorically stated that he identified the dead body of deceased Sanjay at GTB Hospital on 01/02/2007 itself.
41. PW25 Insp. Heera Lal, the investigating officer, has also deposed in the Court that on 02/02/2007, PW3 Joginder Singh and PW5 Om Prakash came to PS and told him that deceased Sanjay had gone with Dharmender, on 30/01/2007 at about 11.30 a.m. and thereafter, he had not returned back. He has further stated that thereafter, both the aforesaid witnesses accompanied him to Mortuary of GTB Hospital, where, they identified the dead body of deceased Sanjay. This witness has changed his version on the next day of his examination and has stated that PW5 Om Prakash and PW3 Joginder Singh came to PS Shahdara in the evening on 01/02/2007 and they identified the dead body of deceased Sanjay in the mortuary and thereafter, he again called them on 02/02/2007 and thereafter, he recorded their statements regarding identification of the dead body and conducted the inquest proceedings. No explanation has bee given by any of the witnesses, including the IO Insp. Heera Lal, PW25 as to why, he failed to record the statements of PW3 Joginder Singh and PW5 Om Prakash on 01/02/2007 itself, when they identified the dead FIR No. 38/2007, PSShahdara Page 26/38 body of deceased Sanjay at the Mortuary of the GTB Hospital.
42. Perusal of the record further shows that the statement of PW5 Om Prakash was recorded, for the first time on 02/02/2007. This statement has been placed on record, during the cross examination of the witness, as Ex. PW3/DA. Another statement of PW5 Om Prakash was recorded by the IO on 03/02/2007. The photocopy of the said statement has been placed, during the cross examination of the witness as Ex. PW5/DA. Perusal of the statement dated 02/02/2007, Ex. PW3/DA indicates that the said statement is a signed statement, duly signed by the witness and therefore, the same is hit by the provisions of Section 162 Cr.P.C. This statement was recorded by SI Om Prakash and not by IO Insp. Heera Lal. In the statement Ex. PW3/DA, PW5 Om Prakash has stated that accused Dharmender had come to his house on 30/01/2007 at about 12.30 p.m. and took Sanjay with him and since then Sanjay had not returned back. This statement does not mention the material fact that his uncle Joginder was also present at their residence on 30/01/2007, when, accused Dharmender came to his house and took Sanjay with him. In the statement Ex. PW3/DA, this witness has further stated that he came to know, on inquiries that his brother Sanjay was taken by some natives of his village, on a FIR No. 38/2007, PSShahdara Page 27/38 motorcycle, towards Delhi and thereafter, he made inquiries from the accused Dharmender, who told him that deceased Sanjay has been left by him at Loni Border from where, deceased Sanjay had gone with Harish @ Pintoo and Deepak on their motorcycle. In his statement Ex. PW3/DA this witness has further stated that he was having no suspicion on any person and was having no quarrel or previous enmity with any person.
43. The statement Ex. PW5/DA was recorded by IO Insp. Heera Lal, wherein, a large number of improvements have been made by this witness from his earlier statement dated 02/02/2007. In this statement, he has told about the presence of his uncle Joginder Singh at his residence, for the first time. He has further stated that the accused Dharmender came to his house at about 11.30 a.m. and not at about 12.30 p.m. He has further stated that he gave Rs. 12,000/ to deceased Sanjay to purchase goods for his business and when, deceased Sanjay left his residence, he was having his mobile phone No. 9891671635 with him and at that time, he was also wearing a golden chain in his neck. All these facts indicate that PW5 Om Prakash has deliberately made these improvements in his statement, on 03/02/2007. It is also stated in the statement dated 03/02/2007 that FIR No. 38/2007, PSShahdara Page 28/38 accused Dharmender and his coaccused Harish @ Pintoo and Deepak were the persons of criminal record. In this statement, PW5 Om Prakash had put suspicion on the accused persons, for the first time. All these improvements indicate that this witness has made these allegations, with the sole motive of implicating the accused persons, in the present case. The material contradictions, improvements and discrepancies in their statements, as discussed above, make these witnesses, unreliable and untrustworthy. Their testimonies are not fool proof and are not free from a shadow of doubt.
Arrest Of Accused Persons
44. Perusal of the record shows that on 31/01/2007, an information was received at PS Shahdara, about a dead body lying near MCD Primary School, DDA Ground, in front of Fire Brigade Office, on which, DD No. 16A Ex. PW14/A was recorded at PS Shahdara, at about 4.45 p.m. and thereafter, the police officials went to the spot and investigations were conducted by them. At that time the dead body could not be identified and no eye witness of the alleged murder of the deceased Sanjay was available to the police officials and therefore, the dead body was shifted to the Mortuary of the GTB Hospital and was kept there till 02/02/2007. After its identification and FIR No. 38/2007, PSShahdara Page 29/38 postmortem on 02/02/2007, the same was handed over to its relative. During this entire period, w.e.f. 30/01/2007 to 02/02/2007, none of the public witnesses or the family member of the deceased met the police officials and have not recorded their statements till 02/02/2007. Even, after recording of the statement of PW5 Om Prakash on 02/02/2007 and again on 03/02/2007, no efforts were made by the police officials, the relatives and friends of the deceased to apprehend the accused Dharmender. Even no inquiries were made from the accused Dharmender till his arrest on 08/02/2007. During evidence, it has come on record that accused Dharmender was a permanent resident of the same locality, where, the public witnesses and the deceased used to reside. There is nothing on record to indicate that accused Dharmender had absconded or was not available to the relatives of the deceased or to the police officials. Nothing has been disclosed by the police officials, including the investigating officer, regarding the accused Dharmender, prior to his arrest on 08/02/2007.
45. On 08/02/2007, the accused Dharmender was apprehended from near Hanuman Temple at Loni Road at about 3.00 p.m. PW8 HC Arvind has categorically stated that on 08/02/2007, he alongwith Insp. Heera Lal, IO, ASI Yogender Singh and HC Upender FIR No. 38/2007, PSShahdara Page 30/38 went to Village Hazipur, Behta, Loni, where, PW3 Joginder Singh met them at his residence and joined investigations with them. He has further stated that after joining of PW3 Joginder Singh, the police party went in search of the accused Dharmender, Deepak and Harish @ Pintoo.
46. Perusal of the record further indicate that the accused Dharmender was apprehended on 08/02/2007 from a very busy and congested place i.e. in front of a temple, in broad day light, but, still no independent public witness was asked to join the investigations by the police officials, for the reasons best known to them. After, his arrest, accused Dharmender allegedly made disclosure statement, wherein, he disclosed about committing the murder of deceased Sanjay alongwith his coaccused Harish @ Pintoo and Deepak.
47. Accused Harish @ Pintoo was also not apprehended till 23/05/2007 i.e. for almost four months, from the day of commission of offences and there is nothing on record to indicate that accused Harish @ Pintoo had absconded. Accused Harish was also a resident of the same locality. However, it was stated by PW25 Insp. Heera Lal that accused Harish @ Pintoo was not traceable and therefore, he got them declared as "Proclaimed Offender" from the Court. Accused Deepak FIR No. 38/2007, PSShahdara Page 31/38 and Harish @ Pintoo were apprehended by second investigating officer, Insp. Amrit Kumar. PW28, Insp. Amrit Kumar has deposed that on 23/05/2007, accused Harish @ Pintoo appeared before the concerned Court and thereafter, he was arrested by him, with the permission of the Court, as the accused Harish @ Pintoo was produced before the concerned Court in the judicial custody, in some other Court. Perusal of the record shows that accused Harish @ Pintoo was in judicial custody in case FIR No. 194/04, under section 392/397/34 IPC at PS Shahdara w.e.f. 21/05/2007 and therefore, production warrants were issued against him on 22/05/2007 for 23/05/2007 and thereafter, the accused Harish @ Pintoo was arrested in present case.
48. Perusal of the record also shows that accused Deepak was also in judicial custody in case FIR No. 40/07, under section 25 of Arms Act of PS Special Cell, Lodhi Colony w.e.f. 28/05/2007 and therefore, his production warrants were also get issued on 29/05/2007 and the accused Deepak was formally arrested in the present case on 02/06/2007.
49. Perusal of the record and testimonies of the police officials clearly indicate that no efforts were made by the police FIR No. 38/2007, PSShahdara Page 32/38 officials to trace the accused Harish @ Pintoo and Deepak, prior to their arrest in some other cases. It was after the arrest of the accused Harish @ Pintoo and Deepak in other case that they allegedly made disclosure statements regarding the commission of offences in that present case also. Therefore, it was in pursuance to their disclosure statement, in the other cases, that the police officials obtained production warrants against them and formally arrested them in the present case, with the permission of the Court. All these circumstances are therefore, not free from a shadow of doubt. Recovery Of Personal Articles Of The Deceased
50. After his arrest, the accused Harish @ Pintoo was taken to his native village at Village Nekpur, from where, he got recovered one dark brown coloured purse from the 'Tand' of his house. The said purse was found to contain one identity card of the deceased having his photograph and a prescription slip of the doctor. It has been stated by PW8 HC Arvind, PW9 Ct. Upender Singh and PW28 Insp. Amrit Kumar that some villagers were asked to join the proceedings, but, they all refused. During their cross examination several material contradictions have come on record. PW8 HC Arvind Kumar has stated that the purse was lying in the household articles and at that FIR No. 38/2007, PSShahdara Page 33/38 time several neighbours were present near his house. He has admitted that the purse was not lying in any trunk or bag and the police officials have not looked at the other articles lying on the "Tand". PW28 Insp. Amrit Kumar has stated that the purse was got recovered by the accused himself, from the room and he kept standing at the door of the room, while, the accused entered the room and got the purse recovered. He has also stated that no neighbour came near the house of the accused, but, the parents of the accused were residing in that house, at that time.
51. It has been held by Hon'ble High Court of Delhi in case titled as 'Mukesh Kumar @ Pilwa @ Chuha Vs. State', reported as 2012 (2) JCC 920, as under:
"16. The prosecution, in this case was unable to prove with any certainty, motive on the part of the accused. It sought to pin down their role, by alleging that each appellant's disclosure led to recovery of some article. In the case of Mukesh, a gold coloured ring was recovered; Ranjit Sahi is alleged to have assisted in the recovery of a purse and a bracelet whereas, Ritesh's disclosure led to recovery of a wrist watch. None of these articles was proved to be valuable, or possessing any distinguishing feature marking them out, to enable specific identification. This circumstance therefore, cannot be considered incriminating."
(emphasis supplied by me) FIR No. 38/2007, PSShahdara Page 34/38
52. At the time of alleged recovery of purse, at the instance of accused Harsih @ Pintoo, no independent public witness was joined by the police officials despite of the fact that the alleged recovery was effected from the residential house of the accused in broad light day and from a congested residential village. Furthermore, the recovery of the purse has been effected from a place, which was being used as a place for disposal of waste articles. It is highly surprising to note, as to why, the accused shall keep the empty purse with him for such a long time, after commission of the offence, when, he was not using the said purse. The purse allegedly recovered from the possession of the accused was having no monetary value and was not a special piece, which could have tempted the accused to keep the same with him.
53. Accused Deepak was arrested in the present case on 02/06/2007 and thereafter, he allegedly made a disclosure statement on 02/06/2007, but, no article of the deceased could be recovered from his possession. The accused Deepak was again taken out from the lockup of PS Shahdara on 04/06/2007 and was taken to a Railway crossing near Behta Village, Loni, UP. But still, no incriminating article could be recovered at his instance. The accused Deepak was again interrogated by the IO, on 04/06/2007, and another disclosure FIR No. 38/2007, PSShahdara Page 35/38 statement Ex. PW8/A was allegedly made by him and thereafter, he took the police party to his residence at Balram Nagar, Loni, UP and got recovered the golden chain of the deceased from the box of his bed. All these circumstance, indicate that the police failed to recover any incriminating article from the possession of the accused, at his instance, till 04/06/2007, despite of the fact that he remained in police custody for more than two days. Even, at the time of alleged recovery of chain, no independent public witness was joined to the investigations.
54. It is pertinent to mention here that the investigation officers have not made any efforts to recover the mobile phone of the deceased. It has been stated by PW5 Om Prakash that the deceased was having mobile phone with no. 9891671635, when, he left his house on 30/01/2007. But no efforts have been made by the IOs, even to collect the call details of the said mobile phone, to ascertain the location of the said phone, during the period w.e.f. 30/01/2007 to 31/01/2007. Even the call details of the mobile phones of the accused persons have not been collected, during the investigations. All the circumstances, as discussed above, make the recovery of purse of deceased Sanjay, at the instance of accused Harish @ Pintoo and FIR No. 38/2007, PSShahdara Page 36/38 recovery of golden chain of deceased Sanjay at the instance of the accused Deepak highly doubtful.
55. In view of above discussion, this Court is of the considered opinion that there are several material contradictions and a large number of discrepancies in the prosecution case. From the evidence on record, it is clear that the chain of circumstances is broken at several places and therefore, it cannot be held conclusively and beyond a shadow of reasonable doubt that it is the accused persons, in all probability, who murdered Sanjay. Therefore, the benefit of doubt has to be extended to the accused persons in the facts and circumstances of the present case and they are accordingly entitled to be acquitted in the present case. Therefore, all the three accused persons are hereby acquitted for the offences punishable under section 120B/364/302/34 IPC.
56. The accused are directed to furnish a personal bond in the sum of Rs. 25,000/ with one surety of the like amount, in compliance of the provisions of Section 437A of Cr.P.C. The accused, who are in judicial custody, shall be released only after furnishing of the bail bonds by them.
57. The accused are further directed to appear before the FIR No. 38/2007, PSShahdara Page 37/38 appellate Court, as and when, the notices are issued to them by the appellate Court, in any appeal, if preferred by the State, against their acquittal.
It is ordered accordingly.
File be cosigned to record room, after due compliance.
Announced in the open court Brijesh Kumar Garg on this 20th day of September, 2013 Special Judge NDPS (NorthEast) ASJ:KKD Courts, Delhi.
FIR No. 38/2007, PSShahdara Page 38/38