Delhi District Court
State vs ) Ashish Khatri on 20 December, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 82/01/10
Unique Identification No. 02404R0251502010
State
Versus
1) Ashish Khatri
Son of Sh. Vinay Kumar
R/o H.No. A259,
Dhirpur Village,
Delhi.
2) Pramod Kumar @ Ghantu
Son of Sh. Chandrama Prasad
R/o H.No. 386, Hardev Gali,
Nirankari Colony,
Delhi.
FIR No. 246/10
PS - Mukherjee Nagar
U/s. 302/34 of IPC
Date of institution of the case: 01/10/2010
Arguments heard on: 17/12/2012
Date of reservation of order: 17/12/2012
Date of Decision: 20/12/2012
JUDGMENT
One DD No. 11A dated 03/07/2010 was recorded regarding murder of one person lying on the road in Nirankari Colony, Dhirpur Village, near Ashram, having a deep head injury.
On receipt of this DD, SI Amla Nand reached at the spot and from the SC No. 82/01/10 1/19 circumstances, got registered a case U/s. 302 of IPC.
During investigation, rough site plan was prepared. Scaled site plan was also got prepared. Photographs of the place of occurrence were got conducted. Crime team report was collected. PCR form was collected.
From the place of occurrence, blood sample, blood stained earth, earth control of ground and of concrete bench were seized. One pair of rubber chappal was also taken into possession. Dead body was got removed to the mortuary of BJRM hospital. Inquest proceedings were conducted. From the hospital, sealed parcels of clothes of deceased, blood sample and blood sample for alcohol and two sample seals were also taken into possession.
Dead body was identified by one Suresh Kumar and Rajbala and was handed over to the relatives of the deceased by preparing a memo.
On 05/07/2010, accused Ashish Khatri and Pramod Kumar were arrested in this case. Their personal searches were conducted. Both the accused made disclosure statements and pointed out the place, where weapon of offence was thrown. It was got recovered and was taken into possession. Opinion regarding weapon of offence was also obtained.
During investigation, accused Ashish Khatri got recovered his blood stained clothes. Similarly, accused Pramod Kumar also got recovered his blood stained clothes and pointed out the place of occurrence.
Exhibits were sent to FSL and their medical examination report was obtained. On completion of investigation, chargesheet was filed against both the accused U/s. 302/34 of IPC.
Case was committed to the Court of Session and was received on 18/10/2010.
Charge U/s. 302/34 of IPC was framed against both the accused on 08/03/2011, to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW22 in all. On SC No. 82/01/10 2/19 completion of evidence of the prosecution, statements of both the accused were recorded U/s. 313 Cr.P.C., which they have denied and have pleaded their innocence.
During trial, FSL report was also obtained and was taken on record. I have heard learned Addl. PP for the State, learned defence counsel for both the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offence U/s. 302/34 of IPC:
Case of the prosecution rests upon last seen evidence along with motive, recovery of weapon and recovery of blood stained clothes at the instance of both the accused persons.
To prove the last seen evidence, PW1 Zuad Ali, PW2 Mahesh Kumar and PW4 Roop Singh have been examined. PW1 Zuad Ali has simply stated that he was running a cycle shop at main Burari Road and used to close his shop at 8/9.00 p.m. A person of the village was murdered in a dharamshala, situated at a distance of 1½ k.m. away from his shop. After about 7/8 days, police came to his shop and took him to PS and his name and address were noted. Police made inquiries from him.
PW1 Zuad Ali has not supported the case of the prosecution to the extent that he used to close his shop at 12 night and on the day of incident, he was present at his shop at about 11 p.m. and PW2 Mahesh and PW4 Roop Singh, who were roaming, came there, meanwhile, Ashish also came there and Mahesh had told that his father was sleeping on a bench in the Kutiya of Baba Ramdas Ashram. PW1 Zuad Ali has also not supported the case of the prosecution to the extent that Ashish had told that his father used to abuse his mother and took a quarrel in the evening of 02/07/2010 and that Ashish was under the influence of liquor.
PW1 Zuad Ali has also not supported the case of the prosecution to the extent that meanwhile, Pramod @ Ghantu, friend of Ashish, came there and they both went for strolling and till that time, PW2 Mahesh and PW4 Roop Singh sat there and talked with each other. PW1 Zuad Ali has not identified either accused Ashish Khatri SC No. 82/01/10 3/19 or accused Pramod Kumar before the Court and has stated that he had not seen both of them on that day and they are not known to him. So, neither PW1 Zuad Ali has supported the case of the prosecution regarding last seen evidence nor about the identity of both the accused persons in any manner despite cross examination conducted by learned Addl. PP.
PW2 Mahesh Kumar has also stated that he came to know that Vinay, resident of Village Dhirpur, was murdered on 03/07/2010 in the morning. He was called by the police. He was not knowing anything about the same as one day before, one Balbir Singh @ Billu had attacked on his neck with blade and he had sustained injuries. He was undergoing treatment, so, he used to remain at his house.
In the cross examination conducted by learned Addl. PP, PW2 Mahesh Kumar has also not supported the case of the prosecution to the extent that he came out for strolling with PW4 Roop Singh and they reached at the shop of PW1 Zuad Ali and he had seen Vinay Kumar sleeping on the cemented bench at the Kutiya of Baba Ramdas Ashram. PW2 Mahesh Kumar has also denied that they had gone towards the shop of PW1 Zuad Ali, which was found open and they both sat there. PW2 Mahesh Kumar has also denied that accused Ashish Khatri under the influence of liquor came there and told that his father had taken a quarrel with his mother and he was very upset.
PW2 Mahesh Kumar has also denied that accused Ashish Khatri had told that his father used to abuse and beat his mother after consuming liquor. PW2 Mahesh Kumar has also denied that meanwhile, accused Pramod, friend of accused Ashish Khatri, cane there and they both went away. PW2 Mahesh Kumar has also denied that he and PW4 Roop Singh sat there and continued talking with each other and at about 12.30 a.m. night, they saw accused Ashish Khatri and Pramod Kumar entering in the Kuti and went outside several times. PW2 Mahesh Kumar has also denied that accused Pramod came out of the Kuti and took some heavy object and went inside the Kuti. PW2 Mahesh Kumar has also denied that both the accused SC No. 82/01/10 4/19 were known to him. So, despite cross examination by learned Addl. PP, PW2 Mahesh Kumar has also not supported the case of the prosecution regarding his presence with PW4 Roop Singh at the shop of PW1 Zuad Ali.
PW1 Zuad Ali has also not supported the case of the prosecution that his shop remained open on that day till night. PW2 Mahesh Kumar has also not supported the case of the prosecution to the extent that he had seen both accused Ashish Khatri and Pramod Kumar there and they had entered in the Kuti and came outside several times and one heavy object was picked up by the them. PW2 Mahesh Kumar has also not supported the case of the prosecution regarding identity of both accused Ashish Khatri and Pramod Kumar in any manner, so, both PW1 Zuad Ali and PW2 Mahesh Kumar have contradicted each other, hence, cannot be relied upon in any manner.
PW4 Roop Singh has stated that on 01/07/2010, at about 12.30 night, he came out of his house. At that time, PW1 Mahesh met him on the way. He was going to see his children, who used to sell his goods in the weekly market. At that time, PW2 Mahesh asked him as to what he was doing there and he told that he had come to see his children. He started moving towards Nirankari colony. PW2 Mahesh also accompanied him and after going some distance, they came back and sat on the shop of one cycle repair. They stayed there for about 10 minutes. After about half an hour, accused Ashish came there and asked PW2 Mahesh as to whether he had seen his father. They told that they had not seen his father. After sometime, accused Ashish received a call from his mother and told them that his mother was calling, so, he was going to his house. After sometime, they both saw that his mother was coming and both accused Ashish Khatri and his mother went towards the Ashram. They stayed there for about half an hour. Thereafter, again accused Ashish Khatri and his mother came there. Accused Ashish Khatri was having some heavy object on his shoulder and went towards cremation ground. His mother went in the back gali. They heard the noise of bang, so, PW4 Roop Singh presumed that accused SC No. 82/01/10 5/19 Ashish Khatri must have thrown the heavy object somewhere.
PW1 Zuad Ali has not supported the case of the prosecution to the extent that in the said night, his shop remained open till 12 night, so, question of sitting of both PW2 Mahesh Kumar and PW4 Roop Singh at the shop of cycle repair does not arise. Learned defence counsel has further contented that according to the case of the prosecution, both accused Ashish Khatri and Pramod Kumar were seen together by PW2 Mahesh Kumar and PW4 Roop Singh but PW2 Mahesh Kumar has not supported the case of the prosecution in this respect.
PW4 Roop Singh has introduced a new case before the Court and instead of accused Pramod, he named Rajbala, wife of deceased Vinay, who was with accused Ashish Khatri, so, PW2 Mahesh cannot be relied upon. According to the case of the prosecution, as suggested to PW2 Mahesh Kumar in the cross examination conducted by learned Addl. PP, both PW2 Mahesh Kumar and PW4 Roop Singh had seen accused Pramod coming out of Kuti, who picked up some heavy object and went inside the Kuti, whereas according to PW4 Roop Singh, accused Ashish Khatri was having some heavy object on his shoulder and went towards the cremation ground. They heard noise of bang. So, PW4 Roop Singh presumed that accused Ashish Khatri must have thrown the heavy object somewhere, which is entirely contradictory to the deposition of PW2 Mahesh Kumar, as suggested by learned Addl. PP and also to the case of the prosecution because according to case of the prosecution, as suggested to PW2 Mahesh Kumar, accused Pramod had taken a heavy object inside the Kutiya, whereas according to PW4 Roop Singh, accused Pramod is not in the picture, rather Rajbala,wife of deceased, accompanied accused Ashish, so, testimony of PW4 Roop Singh is not inspiring any confidence. More so, PW2 Mahesh Kumar has nowhere deposed that in the said night, he had gone for strolling with PW4 Roop Singh, hence, PW4 Roop Singh cannot be relied upon in any manner.
PW4 Roop Singh has further deposed that thereafter, they went towards SC No. 82/01/10 6/19 Ashram. They suspected that battery of the TSR might have been removed. There was no light in the area of Ashram, so, they lit matchstick and saw father of accused Ashish Khatri lying on a bench, inside the Ashram, who was dead.
PW4 Roop Singh has further deposed that he told these facts to the police and on the next day, he pointed out the place, where the heavy object was thrown by accused Ashish. It was a piece of stone. Same was taken into possession by the police. His signatures were obtained on some papers. PW4 Roop Singh has also identified the big piece of stone before the Court as the same Ex. P1.
According to the case of the prosecution, neither PW4 Roop Singh has pointed out the place, from where, big piece of stone was recovered nor in his presence, it was recovered. The big piece of stone was recovered on 05/07/2010 in presence of one Kalu Khan and HC Ved Pal Singh and was seized vide memo Ex. PW9/A. In view of the statement of PW4 Roop Singh, it seems that seizure memo of big stone has been fabricated against accused Ashish Khatri because PW4 Roop Singh has stated that in the intervening night of 01/02.07.2010, they had gone towards the Ashram and had seen dead body of father of accused Ashish Khatri. PW4 has further deposed that on the next day, he pointed out the place, where the heavy object was thrown. It was taken into possession by the police. PW4 Roop Singh has nowhere stated that the said big piece of stone was taken into possession by the police at the instance of accused Ashish Khatri or at that time, accused Ashish Khatri was also with the police, which shows that big piece of stone was already taken into possession and has been planted against accused Ashish Khatri.
PW9 Kalu Khan has not supported the case of the prosecution in this respect, who has stated that about 1¼ years back, two police officials came to his godown and told that stone had been recovered nearby his godown. He was called by the police to reach at PS Mukherjee Nagar. He reached there. Police made inquiries from him about the timing of opening and closing of godown. He did not see the accused persons in the PS nor they were shown to him for identification. Thereafter, SC No. 82/01/10 7/19 he was released. His signatures were not obtained on any document. PW9 Kalu Khan has also not supported the case of the prosecution regarding the recovery of big stone piece from the chajja of his godown at the instance of accused Ashish Khatri. PW9 Kalu Khan has denied the case of the prosecution in this respect despite cross examination conducted by learned Addl. PP. However, he has admitted his signatures on the seizure memo of the stone Ex. PW9/A, but has denied that in his presence, the said piece of stone was recovered from his godown at the instance of accused Ashish Khatri and was sealed and seized in this case. In view of the depositions of PW4 Roop Singh and PW9 Kalu Khan, it is doubtful whether the piece of stone was recovered at the instance of accused Ashish Khatri from the godown of PW9 Kalu Khan, hence, the recovery of stone piece as weapon of offence has not been connected with accused Ashish Khatri in any manner.
PW4 Roop Singh has also been cross examined by learned Addl. PP as he has not supported the case of the prosecution. In the cross examination, PW4 Roop Singh has admitted that on 04/07/2010, his statement was recorded, but he has not supported the case of the prosecution regarding strolling with PW2 Mahesh Kumar, so, he has been confronted with his statement Ex. PW4/A. PW4 Roop Singh has also been confronted with his statement Ex. PW4/A regarding the fact that they had seen Vinay Kumar sleeping on a cemented bench, but has stated that when they had seen him, Vinay had already died. If PW2 Mahesh Kumar and PW4 Roop Singh had seen dead body of Vinay in the intervening night of 01/02.07.2010, then why they did not inform the police. PW2 Mahesh Kumar has not supported this fact that he along with PW4 Roop Singh had seen the dead body of Vinay in the intervening night of 01/02.07.2010, so, PW4 Roop Singh cannot be believed about the same.
PW4 Roop Singh has also been confronted about the time of arrival of accused Ashish Khatri at 11.30 p.m., whereas again, PW4 Roop Singh has stated that accused Ashish Khatri came there at about 12.30 p.m., so, he has been confronted with statement Ex. PW4/A. PW4 Roop Singh has stated that PW2 Mahesh Kumar SC No. 82/01/10 8/19 had told to accused Ashish Khatri that his father was sleeping in the Kuti at that time, whereas PW2 Mahesh Kumar has not supported this fact in any manner.
PW4 Roop Singh has also not supported the case of the prosecution regarding the motive to commit murder of his father by accused Ashish Khatri with his friend Pramod Kumar and has been confronted with Ex. PW4/A, where all these facts are so recorded. So, prosecution has not been able to prove the motive on the part of accused Ashish Khatri to commit murder of his father Vinay in the Kutiya at that time.
PW4 Roop Singh has also been confronted with the fact that he and PW2 Mahesh had seen accused Ashish Khatri and Pramod entering in the Kuti and again has reiterated that accused Ashish Khatri and his mother had entered in the Kuti and accused Pramod was not there, so, he has been confronted with Ex. PW4/A, where it is so recorded and in such circumstances, the contradiction about the presence of accused Pramod is material and PW4 Roop Singh with some ulterior motive has introduced entirely a new story, which is not supported or corroborated either by PW2 Mahesh Kumar or by PW1 Zuad Ali in any manner.
PW4 Roop Singh has also been confronted with the fact that accused Pramod picked up some heavy object and took the same inside the Kuti and again, with Ex. PW4/A, so, he cannot be relied upon.
Learned defence counsel has further contended that due to some ulterior motive, PW4 Roop Singh has deposed falsely before the Court and tried to involve Rajbala, mother of accused Ashish Khatri, and has admitted the motive behind. Learned defence counsel has further contended that in the cross examination, PW4 Roop Singh has admitted that earlier his sons faced trial of a false case vide FIR No. 248/09, PS Mukherjee Nagar of rape. PW4 has further admitted that one Sonia was tenant of mother of accused Ashish Khatri and his both sons were charged for rape against Sonia and further that Sonia was daughter of maternal uncle of accused Pramod. PW4 Roop singh has denied the knowledge that Rajbala and Meenakshi, SC No. 82/01/10 9/19 mother and sister of accused Ashish Khatri, were witnesses in the said case,so, PW4 Roop Singh was having a reason to depose falsely, hence, cannot be relied upon.
Even in the cross examination, PW4 Roop Singh has been confronted with his statement Ex. PW4/A about the fact that accused Ashish Khatri was having some heavy object in his shoulder and went towards cremation ground. His mother went in the back gali and they heard noise of bang, so, he presumed that accused Ashish must have thrown the heavy object somewhere. This fact is not appearing in his statement Ex. PW4/A, so, he has made a material improvement to involve accused Ashish Khatri with his mother Rajbala and about the weapon of offence.
PW4 Roop Singh had also not told in his statement Ex. PW4/A that they had seen the dead body of Vinay, father of accused Ashish Khatri in the kutiya, lying on the bench, so, this is also a material improvement,which PW4 Roop Singh has tried to connect with accused Ashish Khatri and Rajbala to create a circumstantial evidence against them. Learned defence counsel has further contended that PW4 Roop Singh has also made improvement regarding pointing out the place, where the heavy object was thrown by accused Ashish Khatri and same was taken into possession by the police. This is also a material improvement, hence, PW4 Roop Singh cannot be relied upon.
In view of the same, from the depositions of PW1 Zuad Ali, PW2 Mahesh Kumar and PW4 Roop Singh, prosecution has not been able to prove the last seen evidence against accused Ashish Khatri and Pramod Kumar and further that accused Ashish Khatri was having any motive to commit murder of his father Vinay.
According to the case of the prosecution, incident had happened in the intervening night of 02/03.07.2010, whereas according to PW4 Roop Singh, incident had taken place in the intervening night of 01/02.07.2010 and on the next day, big piece of stone was recovered, so, neither he has supported about the date of occurrence nor he has corroborated with the recovery of big piece of stone and according to him, stone piece was recovered on 02/07/2010 or 03/07/2010 itself. In SC No. 82/01/10 10/19 the cross examination conducted by learned Addl. PP, PW4 Roop Singh has denied that it was the night of 02/07/2010 at about 10.45 p.m., when he was strolling with PW2 Mahesh Kumar. In the cross examination conducted by learned defence counsel for accused Ashish Khatri, again, PW4 Roop Singh has affirmed that PW2 Mahesh Kumar had met him on 01/07/2010 and on the next day, he was taken by the police. Vinay was murdered by these persons in the intervening night of 01/02.07.2010, but died after 12 a.m. night.
According to the postmortem report Ex. PW17/A, postmortem was conducted on 04/07/2010 at 2.00 p.m. and time since death has been opined approximately 37 hours, so, time of death comes to 1.00 p.m. of the intervening night of 02/03.07.2010, hence, PW4 Roop Singh cannot be relied upon in any manner.
Regarding the recovery of weapon of offence, PW9 Kalu Khan has not supported the case of the prosecution to the extent that in his presence, accused Ashish Khatri got recovered weapon of offence from his godown, which was sealed and seized in this case. PW19 HC Ved Pal Singh is also one of the witness to the seizure memo Ex. PW9/A. He has stated that after the arrest of accused Ashish Khatri, he led the police party to Nirankari Colony, where one Khan, owner of the godown, met them. He also joined the proceedings. After that, accused Ashish Khatri pointed out towards a piece of stone lying on the chajja of the godown, from where, he got recovered the piece of stone. It was sealed in a pullanda with the seal of "RD" and was seized vide memo Ex. PW9/A. Similarly, PW22 Inspector Rajesh Dahiya has also deposed that accused Ashish Khatri led the police party to H.No. 380, Nirankari Colony, which was a godown, where owner of godown namely Kalu was present and in his presence, accused Ashish Khatri pointed out towards the offending blood stained piece of stone slab, lying on the chajja of the godown. It was sealed in a pullanda with the seal of "RD" and was taken into possession vide memo Ex. PW9/C. Neither photographs of the godown have been taken nor it seems to be probable that accused Ashish Khatri could have concealed the big piece of stone on SC No. 82/01/10 11/19 the chajja of the godown. It has not come in the evidence that chajja of the godown was approachable from outside the godown, so, piece of stone could have been concealed therein. The witnesses have stated that it was a big piece of stone, so, it could not have been concealed at the chajja of the godown by throwing upward by accused Ashish Khatri, so, the place of recovery of big piece of stone seems to be fabricated and PW4 Roop singh has also contradicted in this respect, who has stated that big piece of stone was recovered at his instance and he also pointed out the place, where big piece of stone was thrown by accused Ashish Khatri. It was towards Shamshan Bhoomi. So, witnesses cannot be relied upon in any manner in this respect.
PW22 Inspector Rajesh Dahiya has admitted in the cross examination that big piece of stone was not recovered at the instance of PW4 Roop Singh and has further admitted that no finger prints were found on this big piece of stone slab, so, it has not been connected with accused Ashish Khatri in any manner. If the big piece of stone was blood stained, then there was every possibility of finger prints coming on the stone, while the same was carried away and was concealed by accused Ashish Khatri. Absence of finger prints on the big piece of stone shows that it was not related to the murder of Vinay in any manner.
This big piece of stone was sent to FSL. Reports of FSL have been proved as Ex. PW20/A and Ex. PW20/B. According to report Ex. PW20/B, blood sample of deceased was of human blood of "O" group, whereas human blood was found on cemented slab, but there was no reaction, so, it is not proved that human blood, which was found on stone slab was of deceased Vinay.
In view of above, PW4 Roop Singh on one hand and PW9 Kalu Khan on other hand with PW19 HC Ved Pal Singh and PW22 Inspector Rajesh Dahiya have not corroborated about the date of recovery of big piece of stone nor the place and even it has not been corroborated that the same was recovered from the godown of PW9 Kalu Khan at the instance of accused Ashish Khatri, hence, prosecution has not been able to connect the big piece of stone as weapon of offence in this case. SC No. 82/01/10 12/19
PW6 Manjeet Singh Rathi had informed the police about the dead body of Vinay lying in the Kuti, on the cemented bench. According to him, photographs were taken at the spot in his presence and he had signed the seizure memos Ex. PW6/A and Ex. PW6/B. He has also not supported the case of the prosecution on certain aspects and has been cross examined by learned APP, wherein he has not supported the case of the prosecution about the conduct of deceased Vinay Kumar and the fact that he saw bleeding from the ear, nose,and mouth of the dead body and has denied that exhibits were lifted from the spot in his presence.
PW3 ASI Urmila has proved the FIR of this case Ex. PW3/A and also her endorsement on the rukka Ex. PW3/B. PW5 HC Kailash Chand has proved DD entry No. 11A, copy of which is Ex. PW5/A. PW7 Constable Parveen Dutt had taken photographs of the place of occurrence, while posted as photographer in the mobile crime team. He has proved the positives of the photographs as Ex. PW7/A1 to A8 and another set of photographs as Ex. PW7/B1 to B8. PW8 SI Matadeen Meena had inspected the scene of crime and thereafter, he prepared his report Ex. PW8/A and handed over the same to IO. PW11 ASI Som Prakash has produced and proved the PCR form Ex. PW11/A. PW13 HC Balwan Singh was posted in PCR. On call, he reached there with the staff and found a man lying dead on the bench inside the Ashram, who was bleeding from his head, ear, nose and mouth and blood was lying in huge quantity beneath his head and also on the ground, beneath the bench. On inquiry, he was identified as Vinay, son of Chandgi Ram, R/o A259, Dheerpur Gaon, Delhi.
PW16 SI Mahesh Kumar has prepared scaled site plan on the basis of measurements and rough notes at the instance of IO, which is Ex. PW16/A. PW18 SI Amla Nand had reached at the spot on receipt of copy of DD No. 11A along with Constable Krishan Kumar and conducted proceedings. Dead body was sent to the mortuary of BJRM hospital through Constable Krishan Kumar. He also prepared rukka on copy of DD No. 11A and got registered the case and SC No. 82/01/10 13/19 thereafter, further proceedings were conducted by PW22 Inspector Rajesh Dahiya.
Dead body was identified at the spot by Rajbala, wife of deceased, so, it is not known why the inquest proceedings were conducted on 04/07/2010. IO PW22 Inspector Rajesh Dahiya has not been able to explain about the same. According to the cross examination of PW22 Inspector Rajesh Dahiya, Constable Krishan had removed the dead body to the mortuary of BJRM hospital from the spot in the ambulance with the help of one villager and has further admitted that according to Ex. PW22/D, dead body was received in the mortuary at about 8.50 p.m. If the dead body was taken from the spot at about 11.00 a.m., then it could have reached in the mortuary after about half an hour or one hour, but not at about 8.50 p.m., so, PW22 Inspector Rajesh Dahiya has deposed falsely about the same with some ulterior motive.
PW10 Rajbala has not supported the case of the prosecution regarding the motive to commit murder of her husband by accused Ashish, however, she has identified signatures on the identification memo Ex. PW10/A and receipt of the dead body Ex. PW10/B. She has also identified the wearing clothes of the deceased before the Court as Ex. P2 to Ex. P5 along with pair of chappal. Even in the cross examination, she has been confronted with her statement Ex. PW10/C, but even then, she has not supported the case of the prosecution in any manner.
PW12 Suresh Kumar, brother in law of deceased Vinay, has also not supported the case of the prosecution regarding motive to commit murder of Vinay and has been confronted with statement Ex. PW12/A, but even then, he has not supported the case of the prosecution.
Dead body was identified at the spot by PW10 Rajbala and according to PW12 Suresh Kumar, other public persons were present along with his sister and his nephews Ashish and Sonu, when he reached at the spot. It seems to be improbable that only Rajbala was present at the spot to identify the dead body and her sons were not present there at that time.
SC No. 82/01/10 14/19
Learned defence counsel has further contended that in fact, accused Ashish Khatri had accompanied the police in removing the dead body of his father to BJRM hospital and in that process, his wearing clothes stained with blood, but PW22 Inspector Rajesh Dahiya has denied this suggestion in the cross examination, hence, the evidence brought on record by the prosecution that blood stained clothes of accused Ashish Khatri indicates that he had committed murder of his father, is false and is a concocted story. Learned defence counsel has further contended that had accused Ashish Khatri been committed murder of his father, then he could not have been expected to retain his blood stained wearing clothes lying in his house, which according to the witnesses, clothes were recovered on 05/07/2010, hence, witnesses regarding the recovery of blood stained clothes of accused Ashish Khatri cannot be relied upon.
According to PW22 Inspector Rajesh Dahiya, on 05/07/2010, in the evening time, when he along with PW19 HC Ved Pal, PW21 Constable Rajender and PW15 Constable Pradeep was present in the area of Dheerpur Village in search of accused persons, at that time, they received secret information about presence of both the accused at Bandh Road near Shamshan Bhoomi, Nirankari Colony. Accordingly, they reached there and both the accused persons were apprehended. He interrogated accused Ashish Khatri and arrested him vide memo Ex. PW15/A. His personal search was conducted vide memo Ex. PW15/B. Accused Ashish Khatri made disclosure statement Ex. PW15/C. PW22 Inspector Rajesh Dahiya has further deposed that accused Ashish Khatri firstly got recovered weapon of offence i.e. big piece of stone slab and thereafter, led the police party to his house, from where, he got recovered one track suit pajama of red colour with yellow stripes and one half sleeve Tshirt. These were sealed in a pullanda with the seal of "RD" and were seized vide memo Ex. PW15/D. Thereafter, they came back at the place of arrest of accused persons and then, accused Pramod was arrested vide memo Ex. PW19/B. His personal search was conducted SC No. 82/01/10 15/19 vide memo Ex. PW19/C. Accused Pramod also made disclosure statement Ex. PW19/D. In furtherance of his disclosure statement, accused Pramod led the police party to his house No. 386, Nirankari Colony, Delhi, and underneath a diwan, in the room, he got recovered one blood stained pant and one dirty shirt, which were sealed in a pullanda with the seal of "RD" and were seized vide memo Ex. PW19/E. Thereafter, the accused persons pointed out the place of occurrence vide memo Ex.PW15/E and Ex. PW19/F. According to PW22 Inspector Rajesh Dahiya, he apprehended both the accused persons at Bandh Road near Shamshan Bhoomi, Nirankari Colony, whereas according to PW15 Constable Pradeep, the secret informer met them at Baba Ramdas Ashram, who disclosed about the presence of accused persons near Shamshan Ghat Bhoomi, near Bandh Road, Nirankari colony. They reached there along with secret informer and accused persons, while going towards Batra Cinema, while passing through the boundary wall of Nirankari colony, were apprehended by them on the pointing of secret informer. Learned defence counsel has contended that according to PW22 Inspector Rajesh Dahiya, he apprehended the accused persons, whereas according to PW15 Constable Pradeep, he apprehended accused Ashish and PW21 Constable Rajender had apprehended accused Pramod with the help of PW19 HC Ved Pal Singh, so, the manner, in which, the accused persons have been apprehended and on whose pointing seems to be doubtful as PW22 Inspector Rajesh Dahiya and PW15 Constable Pradeep have not corroborated in this respect.
According to PW19 HC Ved Pal Singh, on 05/07/2010, they reached at Baba Ramdas Ashram in Dheerpur Village at about 3.30 p.m., where IO had called the secret informer. At about 04.45 p.m., secret informer told about the presence of accused persons at Bandh Road near Shamshan Bhoomi, Nirankari Colony, and on the pointing of secret informer, both the accused, while going towards Batra Cinema were apprehended. Deposition of PW19 HC Ved Pal Singh is not corroborating with the deposition of PW22 Inspector Rajesh Dahiya regarding the manner, in which, the SC No. 82/01/10 16/19 accused persons were arrested and on whose pointing.
Learned defence counsel has further contended that at the time of identification of dead body of Vinay by Rajbala, he came to know about the identity of accused Ashish Khatri and also from the statements of witnesses, about accused Pramod. Dead body was handed over on 04/07/2010 and it was cremated. Accused Ashish Khatri must have performed the last rites, so, he was available and was not absconding, so, his arrest on the pointing of secret informer is false and fabricated story.
Learned defence counsel has further contended that it also seems to be highly improbable that accused Ashish Khatri will retain his blood stained clothes in his house, if he had committed murder of his father in the intervening night of 01/02.07.2010 and such clothes could have been recovered on 05/07/2010. Learned defence counsel has further contended that even after knowing the involvement of accused Ashish Khatri as per the statements recorded of the witnesses U/s. 161 Cr.P.C. dated 04/07/2010 of Zuad Ali , Mahesh Kumar and Roop Singh, IO did not conduct any house search of accused Ashish Khatri or of accused Pramod, which shows that the story of their apprehension and recovery of clothes his false and fabricated.
Learned defence counsel has further contended that clothes of both accused Ashish Khatri and of accused Pramod were sent to FSL. According to reports Ex. PW20/A and Ex. PW20/B, these are 10a and 10b and 11a and 11b and blood could not be detected on 11a and 11b, whereas on wearing clothes of accused Ashish Khatri 10a and 10b, human blood of "O" group was found, but the blood stains came on the clothes of accused Ashish Khatri, when he assisted in removing the dead body of his father from Baba Ramdas Ashram to the mortuary of BJRM hospital.
Learned defence counsel has further contended that accused Ashish Khatri has also explained during his statement U/s. 313 Cr.P.C. that his clothes got stained with blood of his father, when he lifted the dead body for removing the same SC No. 82/01/10 17/19 for postmortem. Learned defence counsel has further contended that PW12 Suresh Kumar has stated that when he reached at the spot, PW10 Rajbala and her sons Ashish Khatri and Sonu were present, so, it is doubtful whether blood stains appeared on the clothes of accused Ashish Khatri, while committing murder or while removing the dead body of his father being taken to the mortuary of BJRM hospital.
PW1 Zuad Ali, PW2 Mahesh Kumar, PW10 Rajbala and PW12 Suresh Kumar have not supported the case of the prosecution regarding last seen evidence and motive, whereas PW4 Roop Singh has introduced a new story, which is not corroborating with the case of the prosecution in any manner. PW4 Roop Singh with ulterior motive has tried to implicate PW10 Rajbala as an accused in place of accused Pramod. Recovery of weapon of offence is also doubtful as PW9 Kalu Khan, public witness to the recovery of weapon of offence has not supported the case of the prosecution and thereafter reasonable explanation has been given from the circumstances by accused himself during recording of his statement U/s. 313 Cr.P.C., so, prosecution has not been able to prove this case beyond reasonable doubts. Forensic evidence is of corroborative nature and cannot substitute direct evidence, hence, it is a very weak piece of evidence and solely on this ground, accused Ashish Khatri cannot be held guilty for offence U/s. 302 of IPC.
In view of above, the contentions of learned defence counsel are forceful. PW1 Zuad Ali and PW2 Mahesh Kumar have not supported the case of the prosecution regarding last seen evidence and motive. PW10 Rajbala, wife of deceased and PW12 Suresh Kumar has also not supported the case of the prosecution regarding the motive to commit murder of Vinay by his son accused Ashish Khatri. PW4 Roop Singh has introduced entirely a different case and has tried to replace accused Pramod with Rajbala. More so, he has also contradicted about the date of offence i.e. intervening night of 01/02.07.2010, whereas incident had taken place in the intervening night of 02/03.07.2010, hence, these witnesses cannot be relied upon in any manner. PW9 Kalu Khan has also not supported the case of the prosecution SC No. 82/01/10 18/19 regarding the recovery of weapon of offence i.e. big stone slab piece, so, prosecution has miserably failed to prove offence U/s. 302/34 of IPC against both the accused, for which, both accused Ashish Khatri and Pramod are acquitted. Announced in Open Court on dated 20th of December, 2012 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court /Rohini : Delhi SC No. 82/01/10 19/19