Delhi District Court
State vs . Anand Kishore on 22 December, 2010
State Vs. Anand Kishore
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE (FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 17/09
ID No: 02403R362682004
State Vs. : Anand Kishore Pal
S/o Sh Ram Shanker Pal
R/o Village Santoshpur,
P.O Sultanganj,
P.S Bichhwah,
District Mainpur (UP)
FIR No. 469/2004
P.S. Vasant Kunj
U/s 302/120B IPC
Date of Institution : 21/08/2004
Date when arguments
were heard : 13/12/2010
Date of Judgment : 22/12/2010
SC No. 17/09 1/55
State Vs. Anand Kishore
JUDGMENT
BRIEF FACTS:
The factual matrix of the case of prosecution is as follows:
At 8.32 am on 27/06/2004 an information was received at police station Vasant Kunj on wireless that at House No. 108/9, Kishan Garh the dead body of a girl is lying, blood was scattered nearby. The information was recorded in DD No. 13A, Ex PW10/A, copy of which was handed over to PW30, now Inspector and then SI Jarnail Singh who alongwith PW10 Ct Ramesh went to the place of occurrence. PW31 Inspector S.S Gill, SHO P.S Vasant Kunj alongwith PW12 Ct Naresh, PW9 Ct Davinder Kumar reached at the place of occurrence on the government vehicle. At the spot at first floor, living room of house No. 108/9, Kishan Garh, house of Ved Parkash, the dead body of Ms. Rekha, daughter of Sh Ved Parkash of age 18 years was found on the cot. PW31 recorded statement Ex PW3/A of PW3 Devender Kumar, brother of deceased. In his statement Ex PW3/A, PW3 stated that his sister Rekha of age 18 years was making preparation of the compartment examination of social studies of 10th SC No. 17/09 2/55 State Vs. Anand Kishore class by correspondence. On the previous night, she was sleeping on a room at first floor alone and the door of the room was open. At 6 am on 27/06/2004, PW2 Mrs Kanta informed PW3, her husband, "look look what happened to Rekha". PW3 went to the room of Rekha saw her sister Rekha smeared with blood and her neck entangled in the strings on the cot on side of feet. PW3 took out her neck with great force and checked her chest and nearby but found no sign of life in her. PW2 ran and brought TSR but PW3 found his sister Rekha dead. PW3 collected elders in relation and the relatives, consulted them and made call to PCR at 8.25 am. PW3 stated that his sister Rekha was murdered by cutting her neck from various places. Crime team, photographer and dog squad were called at the spot. PW31 scribed tehrir Ex PW31/A and got the FIR No. 469/04, copy Ex PW7/A, registered. PW26 SI Rajender Singh, Incharge Crime Team, inspected the spot and gave report Ex PW26/A. Sniffer dog from dog squad smelled the place of occurrence and led towards back side of the house, towards the roof through stairs where the drops of blood were there. PW16 HC Ravinder Singh, photographer, took the photographs of the body of deceased and the scene of crime. The SC No. 17/09 3/55 State Vs. Anand Kishore aforesaid blood drops were scratched, sealed in a pullanda. Inquest papers were prepared and body of deceased was sent to mortuary Safdarjung Hospital for postmortem. On 28/06/2004 Dr Prem Kumar, PW11, gave his report opining death of deceased Rekha due to haemorrhage and shock caused by sharp edged weapon causing multiple incised wounds over the neck; injuries nos. 3,5,6 and 9 individually and collectively sufficient to cause death in ordinary course of nature. PW8 Kamla Devi gave statement on 28/06/2004 that she was sleeping on the roof of house No. 108/9 and at 3 am on 27/06/2004 had seen the two accused Anand Kishore and Arvind Kumar leaving the room of deceased, while Arvind was having long object in his hand. Arvind and Anand Kishore were arrested. Their disclosure statements were recorded. Even PW5 Seema, younger sister of deceased gave statement of both accused having teased her prior to one week of occurrence which was seen by the deceased and the deceased had separately called them and admonished them. Arvind had led the police party to the roof of the house where under the pile of bricks, he got recovered a knife having blood stains, alleged to be weapon of offence used for the commission of offence. SC No. 17/09 4/55
State Vs. Anand Kishore Even both accused allegedly got recovered their blood stained clothes worn by them at the time of commission of offence which were concealed in the bed and also the steel glasses from which they had taken water after commission of the crime. These articles were seized. Arvind was got medically examined as he had injury in his right index finger alleged to have incurred in the course of crime. Chance prints from the glasses were lifted. Articles were sent for expert opinion to FSL. Pursuant to completion of investigation, charge sheet was filed.
2. After completing requirements under Section 207 Cr.P.C, case was committed to the Court of Sessions.
CHARGE:
3. Vide order dated 26/10/2004 of my Ld. Predecessor charge for offences under Sections 120B IPC and under Section 302/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
SC No. 17/09 5/55
State Vs. Anand Kishore EVIDENCE:
4. The prosecution has examined in all 31 witnesses to connect the accused with the offences charged. OFFICIAL WITNESSES:
4A(i). PW1 SI Madan Pal is the draughtsman who prepared the scaled site plan Ex PW1/A on 19/07/2004.
4A(ii) PW4 Krishan Lal was posted in PCR, recorded the message in PCR on 27/06/2004, copy of PCR form is Ex PW4/A. 4A(iii) PW7 ASI Saroj Bala is the duty officer who has proved her scribed FIR No. 469/04 as Ex PW7/A; copy of DD No. 13A as Ex PW7/B and copy of DD No. 20A, Ex PW7/C. 4A(iv) PW9 Ct Devinder Kumar is the wireless operator who accompanied the IO, PW31 Inspector S.S Gill to the scene of crime. 4A(v) PW10 Ct Ramesh Chand had accompanied PW30 Inspector Jarnail Singh at the scene of crime on 27/06/2004. 4A(vi) PW12 Ct Naresh is the driver who took PW31 Inspector S.S Gill and PW9 Ct Devinder to the place of occurrence on 27/06/2004.
4A(vii) PW14 Ct Satender Kumar is a constable in Dog Squad SC No. 17/09 6/55 State Vs. Anand Kishore who stated of the dog having led them to first floor roof where the drops of blood were present.
4A(viii) PW15 HC Shyam Lal is the Mal Khana Mohrar at police station Vasant Kunj who has proved the copy of register no. 19 as Ex PW15/A regarding the entries of the deposits of the case property and the copy of RC No. 44/21 as Ex PW15/B. 4A(ix) PW16 HC Ravinder Singh is the photographer who has proved the negatives of the scene of crime as Ex PW16/24 to 46 and the positives of the photographs as Ex PW16/1 to 23. All of them show the blood stains at various places of house but no photograph has been filed showing body of deceased from any angle. 4A(x) PW17 Ct. Khub Ram, Munshi, in Mal Khana was partly examined but later further examined as PW25 before my Ld. Predecessor. He also deposed of the receipt of the sealed parcels of case property from IO/PW31 regarding which the entries were made in register no. 19.
4A(xi) PW18 Ct Rakesh with PW21 Ct Mahavir had taken the body of deceased Rekha to mortuary of Safdarjung Hospital for preservation and later postmortem. After the postmortem, the body SC No. 17/09 7/55 State Vs. Anand Kishore of the deceased was handed over to its legal heirs vide receipt Ex PW3/D. 4A(xii) PW19 HC Anant Ram brought the postmortem report and the five sealed parcels with sample seal from Safdarjung Hospital, gave them to PW31, Inspector S.S Gill, who seized them vide memo Ex PW19/A. On 21/07/2004, PW19 had also taken a sealed parcel containing knife to PW11 Dr. Prem Kumar at Safdarjung Hospital for opinion. Again on 02/08/2004, PW19 brought the opinion of PW11 Dr. Prem Kumar and sealed parcel containing knife with sample seal. 4A(xiii) PW20 Ct Sree Bhagwan was the constable in Dossier Cell who stated to have taken finger prints of the accused there at South West District, Dhaula Kuan.
4A(xiv) PW21 Ct Mahavir had also accompanied the IO in investigation and is the witness of memos of arrest of accused Arvind Kumar Ex PW8/A, arrest memo of accused Anand Kishore Ex PW8/B and their personal search memos Exts PW8/C and PW8/D; disclosure statements of accused Exts PW8/F and PW8/E; sketch of the knife Ex PW8/G; seizure memo of knife Ex PW8/K; seizure memo of recovered blood stained clothes of accused Arvind Kumar and a steel SC No. 17/09 8/55 State Vs. Anand Kishore glass, Ex PW8/J; seizure memo of recovered blood stained T shirt of accused Anand and steel glass, Ex PW8/H. 4A(xv) PW22 Ct Ganga Sharan is the Special Messenger who had taken the copy of FIR from duty officer to the residence of the senior officers and area MM and delivered them. 4A(xvi) PW23 Ct Chandan Singh is the photographer in the Crime Team and on 28/06/2004 had taken the photographs of chance finger prints whose negatives were Ex P1 to P9. 4A(xvii) PW24 HC Yash Pal had accompanied the IO on 28/06/2004 in the course of investigation and is the witness of arrest and personal search of the accused and the disclosure statements and recovery of the blood stained clothes, knife and steel glass. 4A(xviii) PW26 SI Rajender Singh is the Incharge Crime Team who on information had gone to the place of occurrence on 27/06/2004, inspected the spot and had proved his report Ex PW26/A. He also got the scene of crime photographed but had not lifted any chance prints from the spot on 27/06/2004.
4A(xix) PW27 HC Lal Chand was the head constable in Crime Team and accompanied PW29, now Inspector and then SI Ajit Singh, SC No. 17/09 9/55 State Vs. Anand Kishore Incharge Crime Team, on 28/06/2004 to the spot. On directions of PW29, PW27 lifted the finger prints from the two glasses, from the door of the house and has proved his report Ex PW27/A. 4A(xx) PW28 Ct Ravinder Kumar took the 15 sealed pullandas with three sample seals on on 06/08/2004 from Mal Khana to FSL, Rohini vide RC No. 44/21 and deposited them there against receipt and stated that during his custody the said sealed pullandas and sample seals remained intact.
4A(xxi) PW30 Inspector Jarnail Singh, the then SI had received the copy of DD No. 13A, Ex PW10/A on 27/06/2004 and had gone to the scene of crime with PW10 Ct Ramesh, where later PW31 with staff also reached there. Over the neck and left cheek of the dead body of the deceased, injuries marks were found. Blood was found on the cot as well as on the floor on the room. The dog squad as well the Crime Team were called by PW31. Photographer was also called. Photographs were taken. Tehrir was taken by PW10 Ct Ramesh for getting the FIR registered. On 28/06/2004, upon recording of statement of PW8 Kamla Devi, accused were arrested, their personal search were conducted, their disclosure statements were also SC No. 17/09 10/55 State Vs. Anand Kishore recorded pursuant to which accused Arvind Kumar got recovered blood stained knife from inside a heap of bricks lying on the roof of another room in front of the place of occurrence in the same premises. Sketch of knife Ex PW8/G was prepared. Knife was seized vide memo Ex PW8/K after it was sealed in a pullanda with the seal of SS. Accused led PW31, IO Inspector S.S Gill to their tenanted room, produced blood stained steel glasses and their clothes, worn at the time of occurrence. Crime team was called and lifted chance prints from the wooden door and from the steel glasses. The said articles, the case property, were seized.
4A(xxii) PW31 Inspector S.S Gill is the investigating officer. MEDICAL EVIDENCE:
4B(i) PW11 Dr. Prem Kumar, CMO Safdarjung Hospital, deposed that he had conducted the postmortem on the body of deceased Rekha, 18 years female. PW11 stated that deceased was wearing black colour salwar, printed multi coloured kurta and blood stained two bras; she was also wearing high thigh underwear of black colour; on removal of it vshaped another underwear over which multiple rounds of nara were found tied; below it checkered (black SC No. 17/09 11/55 State Vs. Anand Kishore white in colour) cloth folded kept over private part (public area); no cut on cloth found; scalp hair were tied on the back with hair band, a white colour hair band inverted Ushape over head found; deceased wearing golden colour ear ring only in left ear; all the articles were sealed and handed over to police IO alongwith sample of seal; blood stains were found on face and neck of the deceased; mouth partly opened; rigor mortis present all over the body; postmortem staining fixed over the back except contact areas, both eyes were closed, cornea both eyes were hazy; conjunctive both eyes were N.A.D. It was observed in the postmortem report that natural orifices bleeding nose present; public hair black in colour, bushy, no matting found, no injury found on private parts and inner parts of thigh both. Also is mentioned in the postmortem report of deceased that the vagina was permitting two fingers and hymen was absent.
There were following ante mortem injuries:
1. Bruise 2 x 1 cm just 1 cm outer to outer end of left eyebrow.
2. Bruise with small size multiple abrasions (indentation on periphery) with slightly normal area in the center in an area of 4 x 4 cm. On left cheek bone, 2 cm above and outer to left SC No. 17/09 12/55 State Vs. Anand Kishore outer end of the mouth.
PW11 has given the diagramtic presentation of the injury in the postmortem report.
3. Bruise on right side of face involving part of right lower eye lid 1 cm above and outer to right end of the mouth.
4. Bruise on inner side of lower lip 0.8 x 0.5 cm just on the right side to mid line.
5. Incised wound 1.2 cm x 0.1 cm muscle deep on the front part of terminal phalanx of middle finger of right hand clotted blood in wound and around wound seen.
6. Incised wound 0.5 cm x 0.1 cm on the inner part palmer surface of index finger right hand.
7. Incised wound on right palm 2 x 0.3 cm at the base of index and middle finger of right hand.
8. Abrasion 1 x 0.8 cm, inner back middle phalanx of index finger of left hand.
9. Multiple incised wounds, placed transversely one below the another, middle of anterio lateral parts of the neck in an area of 11 x 8 cm. Neck examined in extension position with wood SC No. 17/09 13/55 State Vs. Anand Kishore block at the back of the neck. Total number of incised wounds were 13 in number.
Injury no. 9 was having the following description:
(1) Incised wound 3 x 0.5 cm, 6 cm below and medial to right ear lobule, present on right anterio lateral part of neck. It was fascia deep.
(2) Incised wound 3 x 2 cm, 2 cm below injury no. 1 fascia deep on right anterio lateral part of neck.
(3) Incised wound 3 x 2 cm, 0.5 cm below injury no. 2 on anterio lateral right side. It was fascia deep, cutting under neath the blood vessels.
(4) Incised wound fascia deep 2 x 0.5 cm, 0.5 cm below injury no.
3 on right anterior lateral part of neck.
(5) Incised wound 2 x 1 cm, just medial to injury no. 2 merging with outer end of injury no. 2. It was fascia deep cutting the trachea in the anterior wall on front of neck.
(6) Incised wound 3 x 2 cm, 0.5 cm below injury no. 5. It was fascia deep cutting the trachea on its anterior wall on front of neck.
SC No. 17/09 14/55
State Vs. Anand Kishore (7) Incised wound 3 x 1.5 cm, just below injury no. 6 present on anterior front of neck in mid line area of neck. It is fascia deep. (8) Incised wound 3 x 1 cm on left anterior lateral part of neck, fascia deep, 8 cm below the left side of chin.
(9) Incised wound 3 x 2 cm, 0.5 cm below injury no. 8. It was fascia deep cutting blood vessels underneath. (10) Incised wound 2 x 1 cm, 0.5 cm below injury no. 9 it was fascia deep.
(11) Incised wound 3 x 2 cm, 0.5 cm outer to injury no. 10. (12)Incised wound 3 x 2 cm, 1 cm below injury no. 11, fascia and muscle deep.
(13)Incised wound skin deep, 3 cm above the injury no. 12.
10.Incised wound right side back of neck 8 cm below and behind right ear lobule, it was muscle deep 2 x 1 cm.
11. Incised wound 2 x 1 cm muscle deep 0.5 cm below injury no.
10. PW11 deposed that the death in this case was due to SC No. 17/09 15/55 State Vs. Anand Kishore haemorrhage and shock caused by sharp edged weapon, causing multiple incised wounds over the neck; injuries nos. 3,5,6 and 9 individually and collectively sufficient enough to cause death in ordinary course of nature.
PW11 further deposed that he had given subsequent opinion regarding weapon of offence in respect of above postmortem report on being sought by the IO. PW11 had examined the knife Ex PW8/1, blood stained and gave opinion Ex PW11/B that the injuries nos 5,6,7,9,10 and 11 on the body of deceased could be caused by the said weapon of offence Ex PW8/1.
PW11 further deposed that he had seen the FSL report, in terms of which and as per the postmortem conducted, he was of the opinion that no inter course might have been committed on the deceased.
PW11 further deposed that on 29/06/2004, he examined Arvind Kumar, son of Sh Hoti Lal vide MLC No. C/107598 when he was referred from Casualty Department of Safdarjung Hospital for nature and age of wound on right index finger of Arvind. PW11 stated that he examined the injury over the right index finger of Arvind SC No. 17/09 16/55 State Vs. Anand Kishore Kumar, gave his opinion Ex PW11/C that the injury had been caused by sharp edged weapon, simple in nature and 23 days old and could also be possible with weapon Ex PW8/1 examined by him. 4B(ii) PW13 Dr Sugandha has proved the MLC Ex PW13 A of Arvind Kumar examined on 29/06/2004 by Dr Surjit Kumar Singh whose handwriting and signature she identified as he had worked with her in the course of official duties, while the said doctor had left the services of hospital and his present whereabouts were not known. RELATIVE WITNESSES:
4C(i) PW2Mrs Kanta Mann is the sister in law (Bhabhi) of deceased and deposed that on 27/06/2004 at about 6 am, she woke up and had gone to the nearby room of deceased Rekha to wake her up as she had to study for her compartment examination. PW2 stated that the door was closed but not bolted, which she opened. PW2 saw that leg of deceased was lying towards floor and her head was stuck with the stings of the cot on the left side. Blood was lying on the floor. PW2 became perplexed, woke up her husband and then immediately went to call TSR, brought TSR.
4C(ii) PW3 Devender Kumar is the brother of deceased Rekha. SC No. 17/09 17/55
State Vs. Anand Kishore He deposed that on 27/06/2004 at 6 am, PW2 had woke him up saying "dekho dekho Rekha ko kya ho gaya" . PW3 went to the nearby room of his sister and saw her lying on the cot, her legs were hanging towards floor and her head was stuck with the stings of the cot. The neck of Rekha was split from various places by a sharp weapon. PW3 stated that he had checked her and found his sister having expired, while PW2 brought the TSR. PW3 collected his family members at the spot, consulted with them and at 8.25 am called the PCR. PCR reached at the spot. From police station Vasant Kunj police officials also reached with SHO and recorded his statement Ex PW3/A. 4C(iii) PW5 Seema is the younger sister of deceased Rekha who deposed that on the fateful night she was sleeping in the adjoining room of her deceased sister. PW5 deposed that on that day her sister was murdered by Arvind Kumar and Anand Kishore, the accused. But in the course of her cross examination she clarified that she came to know in the police station that both these accused had committed murder of his elder sister Rekha. PW5 had not seen nor witnessed the murder taking place. PW5 stated that both the SC No. 17/09 18/55 State Vs. Anand Kishore accused persons had teased her prior to one week before the incident when she was giving the fodder to the cows and buffaloes and on this her sister deceased Rekha also reached there and she asked her regarding the happening, later her sister Rekha become annoyed and and PW5 was sent to the house and deceased Rekha remained there. PW5 stated that she was having some suspicion on both the accused persons as they used to tease her and her sister had also become annoyed on this.
4C(iv) PW6 Ved Parkash is the father of deceased who deposed that on 26/06/2004 in the morning at 6 am when he came down from the upstairs, he came to know that his elder daughter Rekha had been murdered. PW6 stated that he could not tell who had committed the murder of Rekha. Later, he identified the body of his deceased daughter Rekha at Safdarjung Hospital mortuary on 28/06/2004 vide statement Ex PW6/A. 4C(v) PW8 Smt. Kamla Devi, aunt (Chachi) of deceased Rekha is the star witness of this case being the person claiming having last seen the accused persons coming out from the room of deceased Rekha in the intervening night of 26th and 27th June, 2004 at about 3 SC No. 17/09 19/55 State Vs. Anand Kishore am and is also the witness of alleged arrest of the accused, their disclosure statements, alleged recovery of weapon of offence viz. knife Ex PW8/1 and the recovery and seizure of clothes of the accused and the steel glasses. Her evidence shall be appreciated in detail later in the course of the judgment.
STATEMENT OF ACCUSED:
5. The incriminating evidence in the statement of witnesses were explained to the accused persons when they were examined under Section 313 Cr.P.C.
5(i) Accused pleaded innocence and false implication stating they were lifted from house at instance of complainant and his family members. Initially both accused wanted to lead defence evidence. No defence evidence was led by accused Arvind Kumar. DEFENCE EVIDENCE:
6. For accused Anand Kishore, DW1 Surjeet Singh, the nephew of Anand Kumar was examined in defence. He deposed that accused Anand Kishore was his real uncle and he with accused SC No. 17/09 20/55 State Vs. Anand Kishore Anand Kishore were residing in a room at house no. 108/9, Kishan Garh, New Delhi and he also used to sit in the shop of his uncle Anand Kishore at Mehrauli where they used to do the work of supply of gas cylinders. DW1 stated that from the room at House No. 108/9, Kishan Garh at about 2/3 pm on 28/06/2004, accused Anand Kishore was arrested by the police when he was also present there.
ARGUMENTS 7 I have heard the arguments advanced by Ld. Addl. PP, Ld. Defence Counsel and accused Anand Kishore and have perused the record including the evidence led and given my thought to the rival contention put forth.
7(i) Ld. Addl. PP for the State argued that there cannot be set pattern of conduct and reaction of any witness and non prompt reporting of having last seen the accused in the intervening night of 26/27.06.04 by PW8 at 3 am coming out of the room of deceased holding some bigger object, cannot be termed fatal to the prosecution case.
Ld. Addl. PP argued that the accused Arvind Kumar SC No. 17/09 21/55 State Vs. Anand Kishore pursuant to disclosure statement, brought knife Ex PW8/1 recovered from under the heap of bricks lying on the roof of another room in front of the place of occurrence in the same premises and it was at the instance of the accused persons that their blood stained clothes were recovered from the box of their bed in their tenanted room, while the two accused were living in the same rented room and were arrested together at the instance of PW8, while accused Arvind Kumar was having injury on his finger, was stammering at the time of arrest.
Ld. Addl. PP argued that the prosecution has proved its case by circumstantial last seen evidence against the accused. 7(ii) Ld. Counsel for the accused argued that none amongst the close relatives of the deceased viz. Pws 2,3,5 or 6 stated of PW8 Kamla having last seen the accused coming out of the room of deceased Rekha at 3 am in the night nor have said of PW8 Kamla having told so to them. It was also argued that the accused deserves acquittal as despite knowledge at 6 am on 27/06/2004 of the murder of deceased Rekha having taken place, call was made to PCR only at 8.25 am and about two and half hours were taken for consultation and deliberation; PWs 2, 3 and 5 were having adjoining room to SC No. 17/09 22/55 State Vs. Anand Kishore deceased Rekha but none of them had heard the cries and shrieks of of the deceased in the dead hours of the night despite the fact of number of injuries being present on the person of deceased Rekha, as is borne out from her postmortem report; PW3 or PW2 had not called the doctor at the place of occurrence nor had taken the deceased to the doctor; no investigation was conducted from angle of honor killing; there being several material contradictions and discrepancies emanating from the testimony of prosecution witnesses regarding the manner and place of arrest of accused persons; their disclosure statements; alleged recovery of the weapon of offence and/or alleged clothes of the accused persons; absolutely unnatural conduct of PW8 neither raising any alarm on having seen the accused persons coming out from the room of deceased Rekha nor even telling any relatives of her or the brother, sister, sister in law (Bhabhi) or father of deceased Rekha with effect from 3 am of 27/06/2004 during the entire course of day of having seen the accused persons so coming out from the room of deceased Rekha; there being no occasion for the accused persons climbing the roof of house of PW8 to go to the alleged rented room from the said room of deceased as in SC No. 17/09 23/55 State Vs. Anand Kishore accordance with version of PW21, there was atleast one house between the house of deceased and PW8 and so as to go from the house of deceased Rekha to the alleged room of accused persons, the house of PW8 was not located on the way; the occurrence having taken place at the first floor of the premises where the room of deceased was situated, while PW8 stated of the deceased having the room on the second floor; PW8 being an introduced witness having been brought in on account of alleged suspicion over the accused persons; no plausible explanation has been tendered for the inordinate delay in recording of statement of PW8; the chain of circumstances is incomplete; the recovery of knife as well as clothes allegedly from accused were tainted; no evidence of conspiracy amongst the accused having been proved on record; had the accused ever teased either the deceased Rekha or PW5, for any landlord the natural course of reaction would have been either to report the matter to the police or to have immediately taken steps for termination of tenancy and ouster of such tenants from their premises; though not admitted, but if as per the presented case, the allegations against the accused were regarding having guilty mind for teasing PW5, then there was no SC No. 17/09 24/55 State Vs. Anand Kishore occasion for the accused to have conspired to kill Rekha, deceased; it was the version of PW8 that there was dark but then how could she see the accused if she was unable to distinguish the weapon with Arvind as danda or knife; no offender would stay at the scene of crime after commission of offence of murder and the presence of accused at the place of crime or in the vicinity of said place bely the version of prosecution ; no finger prints were lifted from the knife despite Crime Team having arrived at the scene of occurrence which depicted the said weapon having been planted; the accused have been framed just on the basis of suspicion in the blind murder case when the investigating agency could not crack the case.
Ld. Defence Counsel argued that the accused thus deserve acquittal.
8(i) When the case was before me at the stage of final arguments, on perusal of file, it was revealed that in October, 2008 when the accused Arvind through counsel moved an application under Section 7A of Juvenile Justice (Care & Protection of Children), 2000 with the plea of juvenility. In the midst of the enquiry before my Ld. Predecessor on 23/04/09 on the application of accused Arvind, his SC No. 17/09 25/55 State Vs. Anand Kishore statement was recorded before my Ld. Predecessor and the said application was dismissed as withdrawn.
8(ii) Section 7A of Juvenile Justice (Care & Protection of Children), 2000 embodied that the plea of the juvenility can be raised at any stage. If it is so raised, it is incumbent upon the court before it is so raised, to hold an enquiry and decide whether or not such person is a juvenile. Mere withdrawal of such application by accused Arvind Kumar did not absolve the Court from its duty to determine as to whether or not such accused was juvenile and juvenility aspect was not to be fore closed but needed to be determined before proceeding any further.
8(iii) Finding the matter before me at the stage of final arguments, on revealing of plea of juvenility as borne out from record, the enquiry which was partly conducted was proceeded further and the State through Ld. Addl. PP was given opportunity to lead evidence on behalf of prosecution in said enquiry. 8(iv) Pursuant to said enquiry, vide detailed order dated 07/12/2010, accused Arvind @ Charan Singh; the arrayed accused was held to be juvenile as on 27/06/2004. Unfortunately for juvenile SC No. 17/09 26/55 State Vs. Anand Kishore Arvind @ Charan Singh, the trial was already over when the case was put up before me at the stage of final arguments and the complete copies of entire record including the order sheets, evidence led, charge sheet and material placed on record by the investigating agency, the exhibited documents, all documents were forwarded to the Juvenile Justice Board with copy of order dated 07/12/2010 through investigating officer, Inspector S.S Gill who was also directed to assist the Juvenile Justice Board for doing the needful required by the investigating agency and copy of said order was also given to the IO to be brought to the notice of his superiors.
APPRECIATION OF EVIDENCE
9. The prosecution case is based on circumstantial evidence. The recovery of the dead body of the deceased Rekha on 27/06/2004, morning, had put the criminal law into motion. At the scene of crime, there was no eye witness of the crime. The investigating agency had difficult task ahead to trace the culprit. In such case of murder, it is difficult to get the clinching evidence, therefore, the circumstantial evidence is used to nab the culprit. The SC No. 17/09 27/55 State Vs. Anand Kishore crime committed can be proved by direct evidence as well as by indirect or circumstantial evidence. However, the court needs to be cautious while appreciating the circumstantial evidence. When a case squarely rests upon the circumstantial evidence, the inference of guilt can be justified when all the incriminating circumstances are found to be incompatible with the innocence of accused. There are catena of judgments of the Apex Court giving the guidelines how the circumstantial evidence is appreciated and what should be the standard of circumstantial evidence when it is used against an accused.
10. In AIR 1952 S.C. 343, "Hanuman Govind Nargundkar v. State of M.P., it was held that ''In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
SC No. 17/09 28/55
State Vs. Anand Kishore "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within SC No. 17/09 29/55 State Vs. Anand Kishore all human probability the act must have been done by the accused.''
11. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
SC No. 17/09 30/55
State Vs. Anand Kishore (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."
12. In the light of the legal position, the evidence on record is to be appreciated. In the present case, the prosecution has relied upon the circumstantial evidence.
LAST SEEN EVIDENCE:
13. First of all, prosecution relied upon last seen evidence of PW8 Smt Kamla Devi.
14. The law is very well settled that the last seen evidence is vital evidence when the case of the prosecution is based on circumstantial evidence. The court has to be circumspect and look for some corroboration.
SC No. 17/09 31/55
15. Coming to the facts of the present case, PW8 Smt Kamla Devi when examined before my Ld. Predecessor narrated that she was educated till 10th Class, in the intervening night of 26th and 27th June, 2004 she was sleeping on the roof of her house. She stated that she was suffering from diarrhea and had visited the toilet, in all 2/3 times, again said 4/5 times. PW8 stated that at about 3 am, she saw the accused Anand and Arvind (declared juvenile) together, leaving the room of Rekha by crossing over the roof of her house. PW8 stated that she noticed that Arvind was carrying a long object in his hand which she could not identify due to darkness and could not say whether it was a danda or a knife. PW8 stated that she was the Chachi of deceased Rekha and her condition on that morning had further worsened and therefore she kept sleeping and was not disturbed by other members of family.
16. PW8 stated that accused persons were tenants in the house of deceased Rekha for the last 34 years. Three to four days prior to the occurrence, the deceased had informed PW8 that accused used to tease her younger sister, PW5 Seema and she had SC No. 17/09 32/55 State Vs. Anand Kishore admonished both the accused persons individually. PW8 stated that she had also decided to be more conscious and watchful about them. After the day the accused were admonished, PW8 observed that they had started feeling shy and insulted.
17. In her examination in chief PW8 stated that when on 28/06/2004 that she was told by her children that Rekha had been murdered, then she went to the house of Rekha and narrated the incident of having seen the accused during the night leaving the room of Rekha. Later in the course of cross examination PW8 stated that she came to know about the murder of deceased from her daughter at about 5 pm on 26th. PW8 also denied of having deposed of date 28th regarding knowledge of such murder, in her examination in chief. PW8 stated that she narrated to Bhabhi of deceased regarding in the night both the accused were leaving the room of deceased. PW8 said that accused were arrested on 26th from their rented room, while as per the presented case of the prosecution, the accused were arrested on 28th. PW8 stated that recovery from accused was effected either on 27th or 28th in the presence of about 10/20 SC No. 17/09 33/55 State Vs. Anand Kishore persons after statement of PW8 was recorded. PW8 in her examination in chief as well as in her cross examination stated that there was darkness at 3 am when she had seen the accused. PW8 had not elicited any source of light at her roof by aid of which she could see the accused. PW8 stated that there was small boundary between her house and the house of deceased and she was residing on third floor, while deceased was residing on second floor. Regarding the said small boundary, PW8 elaborated that the boundary wall was about 910 feet high. In the course of cross examination of PW21, he stated that the house of deceased , PW8 Kamla were on the same side (right side) of street/road; only one house was there in between their houses, again said that there might be two houses between their houses. PW21 further stated that the house of PW8 and owner of the intervening house, house of deceased were single storey, while the house of deceased was double storey house and the deceased was murdered in the first floor room. PW21 stated in his cross examination that when one returns back from the gher (where the alleged tenanted room of accused were situated) to house of deceased, the house of PW8 Kamla Devi does not fall on the way because the SC No. 17/09 34/55 State Vs. Anand Kishore house of PW8 is situated next to the gher towards the other end of the road.
18. In the course of his evidence PW31, investigating officer, Inspector S.S Gill admitted of having never visited the house of PW8 in the course of investigation. There is no site plan prepared to depict the position of PW8 where she was at 3 am, in the night, had seen the accused coming out from the room of deceased nor is there material on record to reflect or prove of there being enough light or source of light at such roof of PW8 by which she could see and recognize the faces of the persons coming out from the room of deceased. PW8 claimed of her house being adjacent to the house of deceased. PW21 stated, otherwise, that it was towards the other end of the road and it did not fall on the way when one returns from the side of the rented room of accused to house of deceased. PW21 also elicited that the house of deceased, of owner of intervening house between house of deceased and PW8 as well as house of PW8 were big houses, could be of 200 Square Yards each.
SC No. 17/09 35/55
19. PW8 in the course of cross examination stated to have come to know of murder of deceased from her daughter in evening at about 5 pm on 26th. PW8 further narrated that she stated to Bhabhi of deceased, PW2 regarding in the night both the accused were leaving the room of deceased Rekha. What follows from version of PW8, accordingly, is that she narrated to PW2 in the evening of 27/06/2004 regarding the accused having leaving the room of deceased at 3 am. PW31, Investigating Officer, had returned along with staff back to police station at 9.40 pm as per copy of DD No. 31A, dated 27/06/2004, where there he mentioned of having come back with good clues, PW31 had reached the scene of crime around 9 am on 27/06/2004. PW31 with his staff remained there at the scene of crime continuously for about 12 hours. If PW2 had gained the knowledge in the evening of 27/06/2004 about PW8 having seen the accused at 3 am in the night preceding to commission of crime, while coming out of the room of deceased, then there was no occasion for PW2 for withholding such information from the investigating agency and specifically the investigating officer PW31. SC No. 17/09 36/55
20. PW8 further alleged that recovery was effected at the instance of accused either on 27th or 28th in the presence of 1020 persons after her statement was recorded. PW8 also stated that the accused were arrested on 26th from their rented room when residents of almost entire village were present. The testimony of PW8 regarding arrest and alleged recovery following disclosure of accused is at variance from the presented case of the prosecution. Such variance shall be demonstrated in detail later.
21. The totality of the circumstances are to be seen. PW8 was having the knowledge of deceased having allegedly admonished the accused few days prior to the occurrence. PW8 also decided to be more conscious and watchful about the accused. With effect from 3 am of intervening night of 26/27.06.2004 till arrival of the officers of the investigating agency at the scene of crime at 9 am and till the investigation work was done till 9 pm on 27/06/2004, the neighbors were being enquired by PW31, investigating officer. Considering the version of PW8, that she had only gone to toilet for the maximum 4/5 times, suffering from diarrhea, it cannot be said that the condition of SC No. 17/09 37/55 State Vs. Anand Kishore PW8 was that much worsened which could have made her not talk to even to single member of her family of having seen the accused with long object, coming out of the room of deceased Rekha in the dead hours of the night. Since such act of coming out of the room of Rekha in dead hours of night was preceded by own decision of PW8 to be more conscious and watchful about them, so non disclosure of the fact of accused lastly seen in the dead hours of night by PW8 to any of her family member or to any official of investigating agency casts suspicion over her credibility. PW8 says deceased was residing at second floor. The room of deceased was at first floor from where her dead body was found and seized. As per PW8, her house was adjacent to house of deceased. PW21 speaks contrary to PW8, elicited herein above. Also as per PW21, to go to rented house of accused from house of deceased, the house of PW8 was not on the way of accused persons. Admittedly, it was dark at the place where at 3 am. PW8 claimed to have seen the accused coming out of the room of deceased. No source of light at such place has been made vivid. No site plan or any photograph of such location of presence of PW8 is on record. When entire version of PW8 is seen in the totality SC No. 17/09 38/55 State Vs. Anand Kishore of the circumstances, it does not inspire confidence but projects the strong possibility of her pointing finger towards the accused merely on the suspicion due to past incident of alleged teasing of PW5 by the accused resulting in their admonition by deceased. ARREST OF ACCUSED:
22. PW31, the investigating officer, deposed that they had proceeded on foot to apprehend the accused at their shop at distance of 600/700 meters from the house of the deceased and only PW8 accompanied them. As per PW31, the accused were arrested at 7 pm on that day; he had tried to join public persons from the neighborhood in the proceedings at that time but none agreed, while no notice was given to any such refusing persons.
23. PW8 deposed that accused persons were arrested on 26th from their rented room and the residents of almost entire village were present there.
SC No. 17/09 39/55
24. In his examination in chief, PW21 stated that PW8 took them to house No. 201, Ward No. 2, Mehrauli, where accused were arrested. In cross examination, PW21 stated that from house of PW8, they had gone to gher. The said gher was situated just before the house of PW8 on the right side of road. From gher, accused were arrested. Family members and many other villagers were present when accused were apprehended. PWs 2 and 3 were also present. When statement of PW8 was recorded by IO then also PW2 and PW3 were present. PW21 further stated that the accused were apprehended at about 7 pm and IO had taken the signature of PW2 and PW3 on some documents after apprehension of accused. PW21 further narrated that accused were present inside their room and after apprehension they were brought outside for writing work.
25. PW24 in his examination in chief stated that when they met PW8 in the afternoon of 28/06/2004, she was enquired and it was PW8 who had taken the police team to house No. 201, Ward No. 2, Mehrauli where they had entered inside the room, found Arvind Kumar (juvenile) and accused Anand Kishore present who were SC No. 17/09 40/55 State Vs. Anand Kishore apprehended on identification of PW8 and were arrested. In his cross examination, PW24 narrated that they had met PW8 at the house of deceased where they remained there for 10/15 minutes, where no writing work was done . Further PW24 stated that then they had gone to aforesaid house at Mehrauli which was at distance of 500 yards from house of deceased. PW24 did not remember whether the parents, brothers and sister in law of the deceased were present at their house when they had reached initially there on 28/06/2004. PW24 was unable to say whether they remained at aforesaid house No. 201/2, Mehrauli for one hour or two hour or three hours but said there were other houses nearby. PW24 also stated that he was not knowing whether IO had called the village Pradhan or any other person to join the investigation but stated that they left Mehrauli after about 7 pm and went to 108/9, Kishan Garh.
26. PW30 deposed that PW8 took police team to shop of accused situated at Kishan Garh from where accused were arrested at 6 pm. PW30 further stated that they conducted the writing work regarding the arrest of accused inside the said shop and they SC No. 17/09 41/55 State Vs. Anand Kishore remained there till 8 pm.
27. As afore elicited cited witnesses of arrest of accused have deposed in contradiction with each other and are at variance, shadow of doubt is casted over the manner, place and sequence of arrest of accused.
RECOVERY:
28. PW31, the investigating officer, testified that on 28/06/2004 the accused were interrogated separately and made their disclosure statements Exts PW8/F and PW8/E and then accused took the police team to house No. 108/9, Kishan Garh and on the roof of the ground floor of the house from beneath a heap of loose bricks accused got recovered knife having blood stains, Ex PW8/1 whose sketch Ex PW8/G was prepared, knife was sealed in a pullanda, seized vide memo Ex PW8/K. PW31 stated that then both accused took the police team to their room on ground floor of house where they were residing as tenants. On opening the door by accused, SC No. 17/09 42/55 State Vs. Anand Kishore blood was seen on the wooden portion of the door. Even Crime Team was called at the spot who took the photographs and lifted the finger prints from the door of the room. PW31 stated that the accused got recovered two steel glasses, Ex PW8/2 and Ex PW8/4 from inside the the room which were having blood stains on them from which the crime team lifted the finger prints from the glasses. PW31 stated that accused were asked to hand over the clothes which they were wearing on the day of occurrence and the accused then produced their clothes from inside the box. PW31 stated that accused Anand Kishore produced Tshirt Ex PW8/5 which alongwith steel glass was seized vide memo Ex PW8/H. Arvind Kumar (juvenile) produced his pant, shirt, banyan collectively Ex PW8/3 which were seized alongwith the aforesaid steel glass vide seizure memo Ex PW8/J.
29. PW8 deposed in examination in chief that on 28/06/2004 the accused Arvind Kumar got recovered knife from heap of bricks lying on the roof of their tenanted house. In the course of his cross examination, PW8 stated that the recovery was effected either on 27th or 28th in presence of 10/20 persons from the room but it was later SC No. 17/09 43/55 State Vs. Anand Kishore to recording of her statement. Such 10/20 persons were not made signatories to the documents of seizure nor cited or examined in court.
30. PW21 in his cross examination stated that he had gone to roof of the room with the help of wooden ladder lying in the gher. PW21 admitted that any person could have gone to the roof of room of accused by affixing a ladder. As per PW21, other tenants residing in gher had refused to give their statement and no notice was given to them and no names of such refusing persons were recorded. In the gher, where alleged room under tenancy of accused was situated, there were other rooms as well occupied by the tenants. No efforts apparent on record have been made to either join these tenants in recovery and seizure of the case property or clothes of accused nor any such person has been proceeded against as per law.
31. PW24 stated that PW8 had accompanied to the roof of house no. 108/9, Kishan Garh but was unable to say whether the IO SC No. 17/09 44/55 State Vs. Anand Kishore had called any public person to be present at such roof. PW24 was unable to say the length and width of the roof even by approximation. He instead stated that the roof was of single storey as also the staircase was starting from ground floor. PW24 was unable to to say how many rooms were there on the ground floor of the house. Even by approximation, PW24 could not say whether they had reached on the roof of said house at 8 pm, 9 pm or 10 pm, while the crime team was not called when they were on the roof. PW24 did not know whether any finger prints were lifted from the knife. PW24 also was unable to say how many public persons were present on the ground floor when they were on the roof of the gher. PW24 was also unable to say whether the parents, brother of deceased and one Devender were present at that time on the ground at the spot or not though he claimed him to be present with the IO. In the course of cross examination later, PW24 stated that there were 3 /4 rooms inside the gher, no public persons were present there, while IO had prepared the documents by sitting inside the room and the aforesaid staircase of the room of the accused was accessible to everyone. PW24 stated that there might be public persons present outside the SC No. 17/09 45/55 State Vs. Anand Kishore gher at that time but was unable to say their number. PW24 further stated that the IO had not called the village Pradhan or any other person to the room at the time of seizure of clothes and glasses in his presence and no statement of village Pradhan or other public person regarding occupation of that room with the accused was taken. PW24 elicited that the room in the gher were in one row and the room in question in possession of the accused was the second room from the right side inside the gher, there being electricity light on the roof.
32. PW30 deposed that accused Arvind Kumar got recovered blood stained knife from inside a heap of bricks lying on the roof of another room in front of place of occurrence in the said premises.
33. PW21 deposed that there were 5/6 rooms in the gher.
34. PW31 stated that the stairs going to the roof were from the left of the room of the accused if one faces the room. SC No. 17/09 46/55
35. Admittedly, the investigating officer has not prepared the site plan of the place of either recovery of knife, room beneath it or of the room under tenancy of the accused, allegedly, nor any photographs depicting the bed from which recovery of clothes of accused, as alleged to have been effected, have been taken nor placed on record nor proved. Regarding the location of such room, the location of staircase, the staircase itself, the sequence of alleged recovery of knife and the clothes of accused have been deposed by the aforesaid alleged recovery witnesses in contradiction with each other and at variance. Admittedly, such place of recovery of knife Ex PW8/1 was accessible to all and not in exclusive possession of the accused. Pursuant to the alleged arrest of the accused persons, in all fairness, the officers of investigating agency may have joined the independent persons/residents of locality in the search and seizure of case property and seizure of the clothes of the accused. Even despite admitted availability of such persons, it was not so done. No document was collected regarding the tenancy of the accused. When all disclosures, discoveries, arrests and recoveries were allegedly witnessed by only relative, interested or official witnesses, then in the SC No. 17/09 47/55 State Vs. Anand Kishore absence of any independent witness therein created doubt or suspicion in the cases, (1) State of Haryana Vs. Ram Singh, 2002 SCC(Cri) 350 and (2) Jagdish and Anr. Vs. State of MP, (2000) 9 SCC155; (3) Sanspal Singh Vs. State of Delhi, (1998) 2 SCC 371; (4) Lala Ram Vs. State, IV (2007) DLT (Crl) 962 (DB) (DHC). It is only PW8 who speaks about the tenancy of the accused in the house of Rekha, deceased, but PW2, PW3, PW5 and PW6 do not speak of accused being tenants in their house. From the steel glasses Ex PW8/4 and Ex PW8/2 chance prints taken could not be matched with the specimen finger prints of accused, as per the report of Director of Finger Prints Bureau, filed on 22/07/2010 by the investigating officer.
36. On Tshirt Ex PW8/5, allegedly of accused Anand Kishore, blood could not be detected as per FSL Report Ex PX, while on the small steel glass, Ex PW8/4, no conclusive report qua blood group report was given by the FSL Report Ex PX.
37. On the clothes Ex PW8/3, allegedly of accused Arvind SC No. 17/09 48/55 State Vs. Anand Kishore Kumar and the steel glass blood of Group A was detected as per FSL Report Ex PX. On bunch of jute rope, Ex PW10/1, on printed chunni Ex PW10/2, on small piece of nylon rope Ex PW10/5, on kurta of deceased, on the two brassiere worn by deceased, on the cloth piece kept over private part of deceased; on the blood stained gauze piece of deceased, blood of A Group was detected in the FSL Report Ex PX. Also as per Ex PX, blood of gauze piece of Arvind was having Group A.
38. The accused were arrested in the evening of 28/06/2004. PW31 deposed that he had also sent the accused for medical examination. PW31 had left the place of recovery at 11 p.m on 28/06/04 and reached back at police station with police party on 28/06/2004 itself. Arvind (juvenile) having injury on his finger was sent for medical examination. MLC Ex PW13/A of Arvind finds mention of time of its recording at 2.50 pm on 29/06/2004. As per Ex PW11/C, the time of examination of Arvind Kumar (juvenile) was at 1.15 pm on 29/06/2004. For more than 13 hours, what had stopped SC No. 17/09 49/55 State Vs. Anand Kishore the SHO of police station Vasant Kunj, the investigating officer, to get the then accused and now juvenile, Arvind Kumar medically examined from a government hospital. There were several officials at police station at the elbow of the investigating officer with whom he could have sent the then accused and now juvenile Arvind Kumar for medical examination. Sufficient time was available with the officers of investigating agency for manipulation of the recoveries, documents, reports. Even as a matter of abundant precaution, seal of IO was not delivered to any other police official or independent witness after its use at the spot pursuant to the alleged recovery of case property and its seizure.
39. Manner, sequence and places of alleged recoveries, elicited herein above, are at variance in the testimonies of cited and examined alleged recovery witnesses and no independent witness(es) have been joined in such recovery. PW30 stated that IO had made inquiries from neighbours but statements of no such neighbours were recorded nor were they cited or examined as prosecution witness. SC No. 17/09 50/55
40. It was also admitted by PW30 that no search of room of PW2 or other rooms of house were taken when they had reached there at the scene of crime pursuant to information on 27/06/2004. It is the admitted case of the investigating agency that no investigation on the lines of probability of honor killing was done by IO despite the fact that PWs 2 and 3 had seen deceased dead at 6 am but reported the matter belatedly only at 8.25 am by making a call to PCR which also was done after collecting all their relatives. Here the aunt (chachi) of deceased viz. PW8 says she kept sleeping as her condition was worsened and was not disturbed by any member of the family. She claimed to be resident of adjacent house of deceased where officers of the investigating agency were there from 9 am onward till 9 pm of 27/06/2004 and as observed in the preceding paras, the condition of PW8 could not have been such that she could not have narrated the sequence of last seen of the alleged accused at 3 am leaving the room of Rekha to even anyone amongst her family or to Pws 2, 3, 5 and 6. The testimony of PW8 per se is neither reliable nor can be termed as clinching evidence to base the conviction of the accused when even the manner, sequence and place SC No. 17/09 51/55 State Vs. Anand Kishore of apprehension and arrest of accused and subsequent there to alleged recoveries of case property and clothes of accused are apparently doubtful. None amongst PWs 2, 3 and 5 from the adjoining rooms, where they were in the night had heard any cry or shrieks of the deceased Rekha who had been given not one but several blows by some sharp edged weapon. The time gap between the knowledge of PW2 and PW3 regarding death of deceased viz. 6 am on 27/06/2004 and their making the call to PCR to report about the death of deceased Rekha at 8.25 am consumed by consultation by getting all their relatives collected at the spot, puts the case of the prosecution under suspicion.
41. In State of U.P. v. Ashok KumarSrivastava [(1992) 2 SCC 86], it was pointed out that ''great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and SC No. 17/09 52/55 State Vs. Anand Kishore the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.''
42. In Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P. [(2006) 10 SCC 172], Hon'ble Supreme Court while reiterating the settled legal position, observed "It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
43. Accordingly, the circumstances since raise a doubt against the fairness of investigation and a possibility cannot be ruled SC No. 17/09 53/55 State Vs. Anand Kishore out that the story of last seen has been fabricated by the prosecution and the relatives of the deceased upon suspicion on the accused who allegedly teased PW5 few days prior to the occurrence, to falsely implicate the accused after due deliberation and to strengthen the case of prosecution by showing the alleged recovery of knife at instance of accused and their clothes from possession of the accused. In the backdrop of shaken and unreliable testimony of PW8, tainted recovery of alleged weapon of offence Ex PW8/1 from the place accessible to all, alleged recovery of clothes of accused without joining any independent witness or nearby residents to such search and seizure, non investigation of the case from the angle of honor killing, makes the case of prosecution not convincing and serious lacuna having crept in the prosecution version, bringing forth other hypothesis, of the deceased having been murdered by persons other than the accused, all in totality, elicit that the pieces of incriminating circumstances are not reliable and the evidence not clinching and the circumstances so proved do not form such chain of events, as would permit no conclusion other than one of guilt of the accused. Suspicion, howsoever, grave it may be cannot be a substitute for SC No. 17/09 54/55 State Vs. Anand Kishore proof. I find that the prosecution has not been successful in proving its case against the accused Anand Kishore, beyond reasonable doubt, on the basis of circumstantial evidence led in this case. Accused Anand Kishore is given benefit of doubt and is acquitted for the offences charged. He be released from jail, if not required else where. File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH)
on dated 22.12.2010 ASJ (FTC)/SD/ NEW DELHI
SC No. 17/09 55/55