Delhi District Court
The State vs 1. Vikram@ Paras @ Pradhan on 15 July, 2014
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 33/14
UID NO . : 02404R0191722010
FIR No : 60/10
P. S : Bawana
u/s : 302/364/201/120 B
IPC
The State versus 1. Vikram@ Paras @ Pradhan
S/O Prem Singh
R/O H. No 500 , sector 12, Panipat
Haryana (Proclaimed offender) .
2. Ashok @ Soky
S/O Ramphal
R/O Village Nilothi P.S Sadar
Bhadurgarh, Distt Jhajjar ,
Haryana.
3. Lalit Kumar @ Bablu
S/O Mehtab Singh
R/O H.NO 3/90 Gali NO.2 , Shanker
Garden Line Par Bahadur garh,
Haryana.
4. Parmod @ Sonu
S/O Surender Singh
R/O H.No 4/98 gali no.1 Inder Park
Colony Bhadurgarh, distt Jhajjar
Haryana.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 1 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
5. Manish
S/O Satpal
R/O H.NO 961, Rewari Kherla
Panna, Deachau Kalan New Delhi
Date of committal to session court : 23.07.2010
Date of argument : 15.07.2014
Date of order : 15.07.2014
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that on 2.3.2010, Rajkumar @ Raju , who was a truck driver left his house alongwith his friend Ravinder @ Binder and thereafter he never returned. He was last seen at Auchandi Border on the same day. On 6.3.2010, complainant Ranbir Singh lodged the report of missing of his brother Raj Kumar @ Raju and on the basis of that report DD no. 30 A was registered. On receipt of said DD no.30 A , S.I Karan Singh sent a wireless message to all India SSP's , DCP's etc and also got published Shore goga. On 11.3.2010, Ranbir Singh made another statement to S.I Karan Singh on the basis of which present FIR was registered.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 2 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
2. It is the case of the prosecution that accused persons namely Vikram@ Paras @ Pradhan, Ashok @ soky, Lalit Kumar@ Bablu , Parmod @ Sonu and Manish kidnapped Raj Kumar @ Raju (deceased) in the evening of 2.8.2010 from Auchandi Border and murdered him in UP and then threw his dead body in Gang Nahar, UP .
3. On 14.3.2010, an information was received at P.S Bawana from P.S Philkhuwa , Gaziabad UP about the recovery of a dead body. On receipt of this information Ranbir Singh, Sanjay, Anil , Dharambir , Mukesh all cousins of Raj Kumar @ Raju(deceased) alongwith police officials reached near Bamba Canal and found there the dead body and identified the said dead body as of Raj Kumar @ Raju (deceased). They identified the dead body of Raj Kumar @ Raju from his right arm on which his name was engraved and then the information was given to the local police and body was sent for postmortem.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 3 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
4. At the time when the dead body was
recovered it was having fire arm injury and one part
of arm was eaten up by the water animals. Dead
body was sent for postmortem . Dr. Ajay Aggarwal
the then CMO at Ghaziabad ,UP , conducted the
Postmortem on the body of the deceased Raj Kumar @ Raju.
5. It is the further case of the prosecution that after committing murder and throwing the dead body in Gang Nahar, accused Pramod and Lalit boarded the car of accused Lalit and accused Ashok , Vikram and Mainsh boarded in a stolen car. Stolen car was being driven by accused Manish in a preplexed manner and it hit an iron pole causing fracture to one of his leg and accused Ashok and Vikram also received injuries. Accused Pramod and Lalit removed accused Manish , Ashok and Vikram from the stolen car, and left the accidental car on the spot and thereafter got admitted Vikram and Ashok @ Shoki in Balaji Hospital in the false names.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 4 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
6. It is also the case of prosecution that on
13.3.2010, one swift car bearing registration number HR-13-C-9039 was stopped by the police during vehicle checking at picket Nangal, Dewal Village P.S Vasant Kunj . Four person Vikram@ Pradhan, Pramod ,Ashok @ Soky and Lalit were sitting in that car. During checking two pistols and few rounds were recovered from the possession of accused Ashok and Vikram. Accused Ashok and Vikram were arrested in that case . Accused Parmod and Lalit were arrested by the police of Vasant Kunj vide kalandara u/s 41.1.(c) CrPC. Aforesaid accused persons confessed their involvement in present case i.e FIR no. 60/2010 P.S Bawana alongwith co- accused Manish .
7. On 14.3.2010, S.I Rajesh Kumar of P.S Vasant Kunj produced accused Ashok, Vikram , lalit and Pramod in Patiala House Court in case FIR no. 69/10 registered u/s 25 Arms Act and Kalandra u/s 41.1 CrPC P.S Vasant Kunj. There with the permission of the court, Inspector Rajesh IO of the present case, SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 5 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC arrested accused Ashok, Vikram, Lalit and Pramod and their disclosure statement were recorded. Accused Manish was arrested on 19.3.2010 from Jaipur Golden Hospital.
8. During the investigation, statement of other public witnesses Ravinder @ Binder and Mukesh were recorded. As per story of prosecution public witness Ravinder @ Binder is the last seen witness as he had seen accused persons taking Raj Kumar @ Raju alongwith them on 2.3.2010 from Auchandi Border.
9. It is alleged that all the accused persons entered into a criminal conspiracy to kidnap and commit the murder of RajKumar @ Raju and in furtherance of their such criminal conspiracy they committed the murder of Raj Kumar @ Raju . It is also alleged that in furtherance of said criminal conspiracy and with an intention to screen themselves from legal punishment , they had thrown the dead body of Raj Kumar @ raju in Gang Nahar, SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 6 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC UP.
10. After completion of investigation, chargesheet was filed against the accused persons. After taking the cognizance of the offences, since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore vide order dated 23.7.2010, case was committed to the court of sessions.
11. Vide order dated 20.01.2011,ld predecessor of this court decided the charges and accordingly, accused persons were charged for the offences u/s 120 B/364/302/201 IPC r/w section 120 B IPC to which they pleaded not guilty and claimed to be tried.
12. In order to prove its case, prosecution has examined as many as Fifty three witnesses.
13. As stated herein above , prosecution has examined fifty three witness .I do not want to burden SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 7 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC this judgment by reproducing their testimonies here as their relevant portion shall be discussed and taken into consideration while appreciating the case on merit a littler further.
14. According to the prosecution four accused persons namely Vikram , Ashok , Lalit and Pramod were arrested initially by police of P.S Vasant Kunj. They confessed their involvement in the present case alongwith accused Manish and subsequently they were arrested in the present case also. PW25 HC Kanwar Singh, PW26 S.I Rajesh and PW27 ASI Dharampal are the witnesses who were posted at P.S Vasant Kunj during relevant time.
15. It is the case of the prosecution that a swift car bearing number Dl-9C-3834 was stolen from the jurisdiction of P.S Nangloi and in this regard an FIR bearing no. 54/10 u/s 379 IPC was registered at P.S Nangloi. This car is shown to have been used by the accused persons in the present case. PW11 HC Suresh, PW17 Jitender Rathi, PW20 S.I VijayKumar, SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 8 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC PW21 HC Ravinder , PW22 Major Sudhir Rathi , PW23 S.I Bahadur , PW28 Sudesh Kumar and PW40 HC Lal Singh are the witnesses pertaining to the case registered at P.S Nangloi.
16. The dead body of Rajkumar @ Raju is shown to have been recovered from Gang Nahar within the jurisdiction of P.S Pilakhuwa and P.S Janikhurd . The police officials posted there assisted the Delhi Police during investigation. PW33 Constable Sanjay Motla , PW34 HG Sanjay , PW36 S.I Adesh Kumar Tyagi , PW37 Constable Devender Rathi, PW38 HC Mool Chand and PW51 HG Rajkumar were the officials posted either with P.S Pilakhuwa or P.S Janikhurd.
17. Public witness Sanjay(PW9), Anil (PW19) , Dharambir (PW29), Mukesh (PW30) are the relatives of deceased Raj Kumar @ Raju who visited the place from the where dead body of Raj Kumar @ Raju was recovered on 14.3.2010 . They identified the dead body of Rajkumar @ Raju .
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 9 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
18. PW44 Mr. Pawan Singh is Nodal Officer Idea Cellular and produced the record pertaining to mobile number 9891076581 . PW45 Anuj Bhatia is the Nodal Officer from Vodafone Mobile company who produced the record pertaining to the mobile number 9953575558 .
19. PW31 HC Ved Singh and PW39 HC Raj Kumar are the police officials who were posted at P.S Kanjhawalan where some DD entry was lodged regarding accident of vehicle allegedly used in the present case.
20. PW32 Dr. Ajay Aggarwal conducted the postmortem on the body of the deceased Rajkumar @ Raju and gave postmortem report ExPW32/A .
21. PW41 D.K Chhabra is a record clerk from Jaipur Golden Hospital who produced the record pertaining to the medical treatment given to the accused person. PW43 Ms Sarita was the record clerk from the Balaji Action Hospital who also SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 10 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC produced the medical record pertaining to the accused persons.
22. PW 13 Ravinder @ Binder is the public witness . According to the prosecution , he is the last seen witness . He turned hostile and was cross examined by ld Additional PP for state.
23. PW18 Ranbeer Singh is the witness who initially lodged the missing report of his brother Rajkumar @ Raju on 6.3.2010. On 11.3.2010 , he made a statement( ExPW18/A) to the police on the basis of which the present FIR was registered.
24. Rest of the prosecution witnesses were posted at P.S Bawana. PW53 Inspector Rajesh is the IO of the present case. Other police officials are the witnesses who assisted the IO during investigation in one way or other.
25. Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 11 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC were recorded wherein they have denied the allegations. Accused Pramod and Manish did not opt to lead any evidence in their defence. Accused Ashok and Lalit opted to lead evidence in their defence but no evidence was led by them despite opportunity.
26. Here it is pertinent to mention that accused Vikram @ Paras @ Pradhan was declared P.O vide order dated 19.5.2014.
27. I have heard the ld Chief Prosecutor for the state and Ld counsel for the accused persons. I have also perused the record very carefully.
28. The prosecution case is that all the accused persons committed the murder of Rajkumar @ Raju and threw his body into Gang Nahar,UP. Nobody witnessed the occurrence and the case rests on circumstantial evidence. It is well settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 12 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other persons. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
29. The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court. It is unnecessary to burden this judgment by making reference to all such decisions. I may content with reference to decisions in Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 13 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
30. In the case in hand the prosecution in order to prove its case mainly relied on the following circumstances:
i) The death of Raj Kumar @ Raju was homicidal in nature;
ii) Last seen witness.
iii) Identification of accused Ashok @ Soky during TIP proceedings.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 14 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC
iv) Arrest of the accused persons and pointing out memo's at their instance.
v) call details of the mobile phone number 9891076581 and 9953575558.
vi) Use of Swift car bearing no. DL-9CS-3834 in commission of offence.
The death of Raj Kumar @ Raju was homicidal in nature.
31. The autopsy on the body of Raj Kumar was conducted by PW 32 Dr. Ajay Aggarwal. He deposed that on 14.3.2010 , he had conducted postmortem on the dead body of deceased Raj Kumar vide PM report no. 361/10. after examination he had found and noticed nine wound of fire arm entry and seven wounds of exit. He had also opined as to cause of death as due to fire arm injuries.
32. He further deposed that after postmortem he had seized one baniyan, one pair of socks , one pair of shoe and alongwith two bullets recovered from the body in separate pulandas and seized pulandas were handed over to the concerned person. His detail report is ExPW32/A. PW32 was not cross SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 15 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC examined by the accused persons despite opportunity. Meaning thereby, accused persons have not disputed the medical evidence. Accepting the medical evidence it is clear that Rajkumar @ Raju suffered a homicidal death.
Last seen witness.
33. As per the story of the prosecution PW13 Ravinder @ Binder is the last seen witness and he had seen the deceased Rajkumar @ Raju going in a Maruti Swift car alongwith accused persons but he has not supported the case of the prosecution. He deposed that on 2.3.2010, he was with Raju @ Raj kumar. At about 7:00 -8:00 pm they left for Auchandi Border. At Auchandi Border they both alighted down from the motorcycle. PW13 further deposed that Raju @ Raj Kumar told him that he is going somewhere for some work and he left motorcycle with him. One person came on motorcycle . Raju told him that the person who has come there on motorcycle was his friend. PW13 SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 16 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC deposed that Raju @ Rajkumar then left that place with that person on his motorcycle and he came back to his house on the motorcycle of Raju @ Rajkumar.
34. PW13 further deposed that he did not know the person with whom Raju @ Rajkumar had gone and he also does not know the number of the motorcycle .
35. PW13 was resiling from his previous statement, he was cross examined by then ld Addl PP for state. During his cross examination by ld Addl PP for the state, he admitted that he had gone to Auchandi Border alongwith Raju @ Raj Kumar but denied the suggestion that their two swift car i.e one bearing no. DL 3-9992 and one of white colour came and three persons alighted down from first car and two persons from the second car. He has also denied the suggestion that deceased Raju @ Rajkumar went alongwith them. He has also denied that all the five accused persons, in the court are same person who had come in said two cars.
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 17 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
36. The testimony of this witness is not
sufficient to hold that he had seen the accused persons taking Raju @ Rajkumar alongwith them.
Identification of accused Ashok @ Soky during TIP .
37. From the record , it is evident that PW13 Ravinder @ Binder had identified the accused Ashok during TIP proceedings conducted in Tihar Jail. During his cross examination he admitted that he had identified the accused Ashok but he replied that he identified him as police had already shown him his photograph. When he was asked by the court that why did he not tell the Magistrate at the time of TIP that he has identified the accused only on the basis of the fact that police had shown him the photographs of the accused Ashok, then he replied that he did not tell because no such thing was asked from him.
38. PW13 has not denied that he signed TIP proceedings ExPW13/B. The aforesaid proceedings SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 18 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC are of no value for two reasons . Firstly TIP is not a substantive piece of evidence and it can only be used to corroborate the other evidence available on record. Secondly, this witness has already stated that he was shown the photographs of the accused Ashok by the police. He further replied that he did not tell the police that accused Ashok is the same accused who had come in another swift car that day. He denied of making any statement to the police . He was cross examined by ld Addl PP for state but no suggestion was put to him that no such photograph was shown to him. A reasonable doubt has been created which goes in favour of the accused Ashok @ soky .
Arrest of the accused persons and pointing out memo's at their instance.
39. Accordingly to the prosecution on 13.3.2010, accused Ashok and Vikram were arrested in FIR no. 69/10 P.S Vasant Kunj u/s 25/54/59 Arms Act and accused Pramod and Lalit Kumar were arrested in kalandra u/s41.1(a) CrPC . Their SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 19 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC disclosure statements were recorded in that FIR. All the accused persons have confessed their involvement in present case i.e case FIR no. 60/10 P.S Bawana. On 14.3.2010, they were produced before a court situated at Patiala House Court. On that day IO Inspector Rajesh Kumar (PW53) alongwith ASI Karan Singh(PW7), S.I Laxmi Narain (PW4), ct Manoj (PW42) and S.I Surender (PW2) reached at Patial House Court. There IO met S.I Rajesh Kumar of P.S Vasant Kunj who handed over the relevant documents to Insp Rajesh Kumar . IO Inspector Rajesh Kumar with the permission of the court arrested accused Ashok, Vikram , Lalit and Pramod vide arrest memo ExPW2A, ExPW2/B , ExPW2/C and ExPW2/D and their disclosure statement was recorded.
40. During the statement recorded u/s 313 CrPC, accused Ashok stated that in case FIR no. 69/10 P.S Vasant Kunj , he has already been acquitted. It was the duty of the prosecution at least to bring on record about the final outcome of SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 20 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC the said case. During their statement recorded u/s 313 CrPC, accused persons submitted that they had already been acquitted in case FIR no. 69/10 P.S Vasant Kunj. That being so, the version of the accused persons can not be rejected outrightly. It could have been one of the circumstances against the accused persons the manner in which they are shown to have been arrested.
41. Accused Manish was arrested by S.I Avdesh (PW8) from Jaipur Golden hospital vide arrest memo ExPW8/A. During statement recorded u/s 313 CrPC accused Manish has admitted the same , hence the arrest of accused Manish stands proved.
42. PW 53 Inspector Rajesh deposed that on 25.3.2010, accused persons were taken to Auchandi Border . There accused persons pointed out the place of occurrence from where they have kidnapped Raj kumar @ Raju(deceased) . Pointing out memo of accused Lalit is ExPW6/A, pointing out memo of accused Ashok is ExPW6/C and of accused SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 21 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC Parmod is ExPW6/D.
43. On 28.3.2010, Inspector Rajesh (PW53) alongwith his staff and accused Ashok, Lalit, Vikram and Parmod had left the PS for UP. At bawana crossing complainant Ranbir(PW18) joined them. First they reached to P.S Janikhurd, Meerut UP and from there with the local police they reached to Kawar Marg towards Murad nagar, Canal. Accused persons pointed out the place where the clothes of the deceased Raju @ Raj Kumar were thrown and he was killed. At the instance of accused persons mobile phones, purse of accused Manish and clothes of deceased were recovered. Pointing out memo of accused Ashok is already ExPW18/D, pointing out memo of accused Lalit is ExPW18/F and pointing out memo of accused Parmod is ExPW18/G. PW53 was cross examined by accused persons.
44. PW53 during his cross examination replied that he met Ranbir (PW18) at Bawana crossing on 28.3.2010, when he alongwith his staff and accused SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 22 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC persons were going to UP, due to traffic jam their both vehicle were stopped at Bawana and in the meantime he saw Ranbir , so he called him. Ranbir was made to sit in the Maruti Van in which he was sitting and they all proceeded to Meerut , UP. However, Ranbir Singh (PW18) during his cross examination replied that on 28.3.2010, he met the police officials of P.S Bawana at Bawana Chowk incidentally as he was going to the police station . When he saw the police officials going towards Narela in two Maruti Vans,he waived them to stop and on his signal police officials stopped the vehicle .
45. During the cross examination of PW18 Ranbir Singh , who is the brother of the deceased it has come on record that deceased was residing separately and not with PW18 . It has also come on record that Ravinder (PW13) had told him on 3.3.2010 about the fact that Raju had been taken away in two swift car but he did not tell such facts to the police either on 3.3.2010 or on 4.3.2010 or on 5.3.2010. This has created a doubt on the testimony SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 23 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC of PW18 itself. It has not been explained that when PW18, who is shown to have made a initial complaint on 6.3.2010, was aware about the aforesaid facts then why it was not brought to the knowledge of police.
46. Prosecution is also relying upon recovery of clothes belonging to the deceased and one purse belonging to the accused Manish . PW18 Ranbir Singh during his examination in chief identified the said clothes as ExP4 and one brown colour purse containing DL, ATM Cards, some visiting cards and two photographs of Manish and Rs 500/- belonging to accused Manish as ExP3. But during cross examination PW18 Ranbir Singh brother of the deceased replied that his Bhabhi has told him about the detail of the clothes worn by Rajkumar @ Raju on 3.3.2010. He again said it was told on 7.3.2010. He further replied that he had given the description /colour of the cloth in his report made on 6.3.2010 and in his subsequent statement made on 11.3.2010. When he was confronted with his SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 24 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC statement ExPW7/A & PW18/A, it was found mentioned contrary to that as deposed by this witness.
47. According to the prosecution they visited P.S Pilakhuwa on 14.3.2010 alongwith complainant Ranbir Singh(PW18) but during his cross examination PW18 replied that he had visited P.S Pilakhuwa , UP prior to 14.3.2010 also. PW18 further replied that the nearby area of the place where the dead body was found, which was searched by the police officials but nothing could be found.
48. PW18 Ranbir Singh during his cross examination replied that they firstly went to P.S Janikhurd and after they went to Gang Nahar. He also replied that main road is not visible from the place of recovery of clothes though said place is situated adjacent to the main road. All the clothes were lying scattered at different places . Some public persons from nearby agricultural field came there after seeing police. He further replied that at first SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 25 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC instance he saw those clothes and he immediately pointed out to the police that clothes were of his brother. PW18 further he picked up those clothes and handed over the same to the police. Regarding the recovery of mobile phone and purse , PW18 replied that he lifted the phone and handed over the same to police officials of P.S Bawana. He further replied that police officials who searched the purse as well as mobile handed over the same to the official of P.S Bawana after lifting the same.
49. But during cross examination PW 53Inspector Rajesh , who is the main IO of the present case, replied that the spot from where the aforesaid articles were recovered is a open field and it is accessable to general public . He further replied that he was the first person who touched the clothes of the deceased at the first point of time and he did not pass the said clothes to any other person . He further replied that mobile of the deceased was also lifted by him at the first point of time and it was seized by him. He replied that place of Auchandi border , which was SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 26 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC pointed out by the accused persons, was already in the knowledge of the police before their pointing out memo's.
50. If the testimonies of PW18 Ranbir Singh and PW53 Inspector Rajesh Kumar coupled with the testimony of other prosecution witnesses is put to close scrutiny then it becomes crystal clear that same is not free from doubt. There is a material contradiction the manner in which pointing out memo's were prepared and recovery of articles has been shown . It has also come on record that the place from where the dead body was recovered and the place from where the deceased Raj Kumar @ Raju was kidnapped was already in the knowledge of investigating agencies. This all goes against the prosecution and it has created a doubt in their story .
v) call details of the mobile phone number 9891076581 and 9953575558.
51. PW44 Pawan Singh , Nodal Officer, Idea SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 27 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC Cellular Ltd proved the call details of mobile no. 9891076581 from 28.2.2010 to 30.3.2010 of NCR Delhi as ExPW44/A and of Haryana as ExPW44/B. Customer Application form as ExPW44/C according to which customer's name is Raj Kumar s/o Sultan Singh , address proof Ex PW44/D and certificate u/s 65 B of Indian Evidence Act as ExPW44/E .
52. PW45 Mr Anuj Bhatia , Nodal Officer ,Vodafone Mobile proved CDR of mobile number 9953575558 from 22.2.2010 to 12.3.2010 of NCR Delhi ExPW45/A and of UP West for the period 1.3.2010 to 10.3.2010 ExPW45/B. Customer Application form is ExPW45/C according to which the customer's name is Savita Devi w/o Omprakash . address proof ExPW45/D and certificate u/s 65 B of Indian Evidence Act is ExPW45/E.
53. Prosecution has failed to connect the call details and the subscriber with the accused persons. It has not been explained that how these phone numbers are connected to the crime. The mobile SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 28 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC number 9891076581 appears to be in the name of Raj Kumar @ Raju ( deceased) but the other mobile number 9953575558 is registered in the name of one Savita Devi. Who was using this number, has not been explained. Even otherwise also the call details can be used to corroborate the story of prosecution and nothing more than that.
vi) Use of Swift car bearing no. DL-9CS-3834 in commission of offence.
54. According to the prosecution that one swift car bearing no. DL-9CS-3834 was used by the accused persons in the commission of the crime. Jitender Rathi (PW17) is the registered owner of the said car. The said car is shown to have been stolen from the jurisdiction of P.S Nangloi on 17.2.2010. The present incident is dated 2.3.2010 . PW17 Jitender Rathi is shown to have produced the car to P.S Bawana on 15.8.2010 i.e after around five moths of the incident . It has come on the record that the said car was got repaired by its owner Jitender Rathi (PW17) as during his cross examination he SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 29 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC replied that the said car was under repair and there was every chance of water entering into it because of the damage in the window panel and wind shield. He further replied that said car was parked in open workshop for one month before it was brought to P.S Bawana.
55. As per the story of the prosecution certain parts of the said car were removed and seized and same were sent for forensic examination. PW17 Jitender Rathi replied that articles ExPX were not removed from the car by the police in his presence and admitted that such type of parts and accessories are available in other cars also. This all has created a serious doubt in the story of prosecution regarding use of the said vehicle in the commission of said crime.
56. This is the only evidence available on record as discussed herein above. Even if for the sake of argument it is presumed that the prosecution has able to prove few circumstances SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 30 of 32 ) FIR no. 60/2010 D.O.D 15.07.2014 P.S Bawana u/s 302/364/201/120 B IPC against the accused persons but still it would not help the prosecution. It is a case of kidnapping and then murder. Prosecution evidence is scattered and sketchy . If we apply the test given in the case of Sharad Birdhichand Sarda ( Supra) there would be no difficulty in saying that the circumstances from which the conclusion of guilt is sought to be drawn could not be fully established. The circumstances brought on record by the prosecution are not of the conclusive nature and chain of evidence is not complete from the point of kidnapping of the deceased till recovery of dead body and arrest of the accused persons.
57. In the present case, I find that the prosecution has blatantly failed to prove the offence against the accused beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons . Accused persons namely Ashok @ Soky , Lalit, Manish and Pramod therefore stands acquitted from the charge u/s 302 /201/120 B IPC .
SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 31 of 32 )
FIR no. 60/2010
D.O.D 15.07.2014 P.S Bawana
u/s 302/364/201/120 B IPC
58. Accused persons be released
immediately if not wanted in any other case.
59. In terms of section 437(A) CrPC, accused persons are directed to furnish bail bond in the sum of Rs 10,000/- each with one surety in the like amount.
60. File be consigned to record room.
Announced in the open (Rajesh Kumar Goel) Court today i.e 15.07.2014 ASJ-5, North Rohini Court SC No. 33/14 State vs Vikram @ Paras @ Pradhan etc (Page 32 of 32 )