Delhi District Court
State vs Rinku on 2 April, 2013
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE(NDPS)/ADDL.SESSIONS JUDGE
(NORTHEAST) : KARKARDOOMA COURTS, DELHI
SC 75(I)/2008
FIR 46/2008
PS Nand Nagari
Under Section 302/201/34 IPC
ID 02402R0338052008
State Versus Rinku
S/o Sh. Nathu Singh,
R/o Village Mahab, PSSayana,
DistrictBuland Shehar, U.P.
Date of Institution 30.05.2008
Date of hearing final arguments 18.03.2013
Date of decision 02.04.2013
J U D G M E N T
1. In the present case, the accused is facing trial for the offences punishable U/s 302/201/34 IPC. The coaccused Raj Kumar @ Pintoo was a juvenile and was therefore, produced before the concerned Juvenile Justice Board, for facing trial.
2. It has been stated in the chargesheet that on 26.01.2008, an FIR46/2008 PSNand Nagari Page 1/26 information was received at PSNand Nagari regarding a dead body of a boy, aged about 15 years, lying at a garbage dump near Meet Nagar Liquor Shop at Mandoli Chungi Railway Crossing, in front of Shamshan Ghat (cremation ground), on which, DD No. 9A was recorded at 12.07 p.m. and was marked to SI C.P. Singh. Thereafter, SI C.P. Singh alongwith HC Kiran pal went to the spot and found a dead body of a boy, aged about 13 years lying there. The deceased was having injury marks on his neck, nose, left cheek, mouth, right ear and at right knee. The information was therefore, sent to Inspector Bachchu Singh, SHO, PSNand Nagari and Crime Team was also called to the spot and the informations regarding missing persons were also checked to establish the identity of the deceased.
3. It is further stated that the complainant Radhey Shyam S/o Paras Nath, identified the dead body of his son Dharmender and thereafter, his statement was recorded by Inspector Bachu Singh, wherein, he stated that he was working as Raj Mistri and the deceased Dharmender, aged about 12 years was his son and was studying in class 7th. He further disclosed that one other boy Raj Kumar @ Pintoo was his friend and he used to visit his house, frequently. He further stated that sometimes one Rinku, the employee at the factory of the father of said Pintoo, also used to visit his house and on 25.01.2008, at FIR46/2008 PSNand Nagari Page 2/26 about 5.00 p.m., the said Pintoo and Rinku took his son from his house and till 6.30 p.m., his son Dharmender (since deceased) had not returned back and therefore, he went to the house of Pintoo at Pratap Nagar, Saboli, to trace him, where Pintoo and Rinku were found present, but no satisfactory reply was given by them. Thereafter, he searched for his son in the nearby localities and with his relatives, but his son could not be traced. He again went to the residence of Pintoo, at about 10.00 p.m., but they again failed to disclose anything about his son Dharmender. Therefore, he informed the police, on phone No. 100 and lodged the complaint regarding his missing and now on 26.01.2008 at about 1.00 p.m., he received an information from PS Nand Nagari to come at Wazirabad Road, Near Ashok Nagar Railway Crossing, where he had identified the dead body of his son Dharmender. The complainant Radhey Shyam also disclosed his suspicion on Rinku and Pintoo.
4. On the statement of complainant Radhey Shyam, IO Inspector Bachchu Singh prepared the rukka, on which, case FIR No. 46/2008 was registered at PSNand Nagari U/s 302/201/34 IPC.
5. During the investigations, the IO Inspector Bachchu Singh prepared the site plan and sent the dead body of deceased Dharmender to GTB Hospital. On 27.01.2008, the postmortem on the dead body of FIR46/2008 PSNand Nagari Page 3/26 the deceased was got conducted and thereafter, the dead body was handed over to its relatives.
6. During investigations, Sh. Devender Kumar, the father of Raj Kumar @ Pintoo produced him before the police officials and during investigations, Raj Kumar @ Pintoo made a disclosure statement, in which, he disclosed about committing the murder of deceased Dharmender alongwith accused Rinku, at the factory of his father at House No. 618, Gali No. 19, Delhi. He further disclosed that after committing the murder of deceased Dharmender they had also thrown his dead body near Ashok Nagar Railway Crossing, Wazirabad Road at the garbage dump.
7. During investigations, accused Raj Kumar @ Pintoo took the police officials to the factory of his father, from where, some broken human hairs and a cloth piece were got recovered. The accused Pintoo also disclosed that the deceased Dharmender was murdered at the factory and the deceased Dharmender was caught hold by him, while accused Rinku had put a cloth piece on his mouth. He further disclosed that the deceased Dharmender was murdered by pressing his throat. He also disclosed that during the incident, deceased Dharmender had pulled the hair of accused Rinku.
8. In pursuance to the disclosure statement of Pintoo @ Raj FIR46/2008 PSNand Nagari Page 4/26 Kumar, the IO made efforts to trace the accused Rinku and they came to know that the accused Rinku was in judicial custody in case FIR No. 231/06 U/s 307 IPC of PSBabugarh Hapur, DistrictGhaziabad, U.P. and thereafter, necessary formalities were conducted and on 06.02.2008, the accused Rinku was arrested, after obtaining necessary permission from the concerned Court at Hapur, DistrictGhaziabad, U.P.
9. During further investigations, the accused Rinku also made disclosure statement and got recovered the motorcycle TVS Victor bearing registration No. UP 14G 3601 from the parking of GTB Hospital.
10. During investigations, the opinion of the doctors, who conducted the postmortem on the dead body of the deceased, regarding the cause of death was also obtained. The exhibits were sent to FSL for analysis. After completion of the investigations, the chargesheet was filed in the Court and the present accused was sent up for trial.
11. Vide order dated 12.12.2008, the charge for the offences punishable U/s 302/201/34 IPC were framed against the present accused, by the Ld. Predecessor of this Court, to which, the accused pleaded not guilty and claimed trial.
12. During the course of trial, the prosecution has examined the FIR46/2008 PSNand Nagari Page 5/26 following witnesses, to prove its case, as under:
(i) PW1, ASI Santosh Kumari, Duty Officer, who has proved the registration of FIR. Computerised copy of the FIR has been proved as Ex.PW1/B.
(ii) PW2, Radhey Shyam, S/o Paras Nath, the father of the deceased Dharmender, who has last seen the deceased on 25.01.2008, at about 5.00 p.m., with accused Rinku and Raj Kumar @ Pintoo (juvenile) at his house and has deposed that both the accused have taken his son, Dharmender (since deceased), with them.
(iii) PW3, Satish Kumar, S/o Sh. Sukhraj, the uncle of deceased Dharmender, who identified the dead body of the deceased.
(iv) PW4, SI E.S. Yadav, the Incharge of the Mobile Crime Team, NorthEast District, who inspected the scene of crime, with his team.
(v) PW5, Ct. Sunil, the Photographer of Mobile Crime Team, who took the photographs of the spot and proved the same as Ex.PW5/B to Ex.PW5/E. The negatives have been proved as Ex.PW5/A (Colly.).
(vi) PW6, Ct. Narender, who took the envelopes containing the FIR46/2008 PSNand Nagari Page 6/26 copy of the FIR and delivered the same to the senior officers.
(vii) PW7, HC Kiran Pal, who alongwith SI C.P. Singh went to the spot on 26.01.2008, where the dead body of the deceased was found lying.
(viii) PW8, SI C.P. Singh, who went to the spot on receipt of DD No. 9A, with Constable Devender and HC Kiran Pal and conducted the initial investigations.
(ix) PW9, Ct. Sanjeev Kumar, who took the sealed pulandas from the MHCM and deposited the same at FSL, Rohini.
(x) PW10, Ct. Rajbir, who joined the investigations with IO Inspector Bachchu Singh on 28.01.2008, at the time of arrest of coaccused Raj Kumar @ Pintoo (Juvenile).
(xi) PW11, HC Ajesh Kumar, who joined the investigations with Inspector Bachchu Singh on 06.02.2013 at the time of arrest of accused Rinku in the present case.
(xii) PW12, Dr. Arvind Kumar, Lecturer, Department of Forensic Department, UCMS & GTB Hospital, Delhi, who conducted the postmortem on the dead body of deceased Dharmender and proved his report as Ex.PW12/A.
(xiii) PW13, Ct. Rajender, who produced accused Rinku in the FIR46/2008 PSNand Nagari Page 7/26 Court of the Ld. MM, for the purpose of taking his hair sample on 19.03.2008.
(xiv) PW14, Ms. Neerja Bhatia, Ld. MM, who conducted the proceedings for collection of hair samples of the accused persons.
(xv) PW15, Inspector Bachchu Singh, the Investigating Officer of the present case.
13. After completion of the prosecution evidence, statement of accused was recorded by the Ld. Predecessor of this Court on 25.04.2011, wherein, the accused has denied all the incriminating evidence against him. He has also stated that he never visited the house of deceased Dharmender and he does not know the place, where his house was situated. He has further stated that he was having no concern with coaccused Raj Kumar @ Pintoo and he was not knowing any person with the name of Raj Kumar @ Pintoo. The accused has also examined himself as DW1 and has also examined Sh. Prem Pal, his employer at his native village at District Buland Shehar, U.P. as DW2, in his defence.
14. After completion of trial Sh. Om Prakash, Ld. Chief Prosecutor for the State and Ms. Radha Yadav & Sh. Rajender Pal, Advocates, for FIR46/2008 PSNand Nagari Page 8/26 the accused have addressed the final arguments.
15. It is pertinent to mention here that during the course of final arguments, it was observed by this Court that the FSL report dated 24.04.2009 was proved on record by PW15 Inspector Bachchu Singh, IO, as Ex.PW15/H, but, Dr. Dhruv Sharma, Senior Scientific Officer of FSL, Rohini, who had submitted his report, has not given any opinion, whether the hairs of the deceased, which were seized in parcel No. 3 (Ex.3) were matching, either with the hairs of accused Rinku or accused Pintoo. Therefore, Dr. Dhruv Sharma was examined U/s 311 Cr.P.C. on 08.02.2012, as a Court witness and he reported that the hair samples could be matched only by Mitrochondrial process. In view of his submissions, it was thought appropriate by this Court that the hair samples be sent again to CFSL for matching purposes and accordingly, the hair samples were deposited at CDFD, Hyderabad for comparison. On 06.12.2012, Inspector Harish Chander, SHO, PSNand Nagari has filed the DNA report from CDFD, Hyderabad.
16. During the final arguments, the Ld. Chief Prosecutor for the State has argued that the prosecution case is entirely based on 'circumstantial evidence' and PW2 Radhey Shyam, the father of the deceased, has categorically stated that on 25.01.2008, accused Rinku, FIR46/2008 PSNand Nagari Page 9/26 alongwith coaccused Pintoo, came to his residence and took his deceased son Dharmender with them and on 26.01.2008, the dead body of his deceased son Dharmender was found at a garbage dump. It has also argued that PW2 Radhey Shyam has categorically stated that on 25.01.2008 when he went to the residence of accused Rinku and coaccused Pintoo, to trace his deceased son Dharmender, no satisfactory replies were given by them about the whereabouts of deceased Dharmender and therefore, it was for the accused persons to explain the whereabouts of deceased Dharmender, as deceased Dharmender was last with them.
17. The Ld. Chief Prosecutor for the State has also argued that the coaccused Pintoo got recovered the cloth piece from the factory of his father, where the deceased was murdered and he also got recovered the human hair from the spot of crime and both these recoveries, when read alongwith the disclosure statement of coaccused Pintoo, points towards the guilt of the accused. He has also argued that both the accused persons had themselves disclosed that the dead body of the deceased was taken to the garbage dump and left there. He has also argued that the other prosecution witnesses have also corroborated the testimony of PW2 Radhey Shyam & therefore, the prosecution case stands proved, beyond a shadow of doubt & therefore, the accused FIR46/2008 PSNand Nagari Page 10/26 should be held guilty and convicted for the offences punishable U/s 302/201/34 IPC.
18. On the other hand, the Ld. Defence Counsels, Ms. Radha Yadav & Sh. Rajender Pal, Advocates, have argued that the prosecution has concocted a false & baseless story and there is no evidence on record, which points towards the guilt of the accused. She has also argued that even the circumstances, leading to the death of the deceased Dharmender, have not been proved on record. She has also argued that the present case is solely based on the 'circumstantial evidence' and there is no eyewitness to the alleged incident and the prosecution has failed to prove the complete chain of events and it has failed to prove conclusively, that the accused has committed the murder of deceased Dharmender. She has also argued that only PW2 Radhey Shyam, the father of the deceased has deposed that the deceased was last seen with the accused persons. But, even his testimony is doubtful, as DD No. 72B, Ex.PW8/B indicates that the deceased was not traceable for the last about 45 days. But, after the recovery of the dead body of the deceased, PW2 had stated that the deceased was last seen by him with the accused persons on 25.01.2008. She has also argued that on 25.01.2008, PW2 Radhey Shyam has even given his mobile number to the police officials while lodging DD No. 72B, but FIR46/2008 PSNand Nagari Page 11/26 still, he failed to disclose anything about the accused persons. She has also argued that the recovery of motorcycle, at the instance of the accused is also doubtful. She has also argued that the recovery of human hair, at the instance of coaccused Pintoo is of no consequence as the report of CDFD, Hyderabad, has proved that the recovered hair were not matching with the hair of any of the accused persons. She has also argued that the recovery of a piece of cloth at the instance of coaccused Pintoo is also doubtful as there is no independent public witness to the alleged recovery. She has also argued that no site plan of the factory of the father of the coaccused was prepared and even no photographs of the scene of crime i.e. the factory, where the deceased Dharmender was murdered, were taken during investigations. She has also argued that the prosecution has miserably failed to prove any 'motive' and the complainant Radhey Shyam has admitted that no ransom call was received by him. She has also argued that there are several material contradictions in the depositions of the prosecution witnesses, which makes the entire prosecution case, doubtful. She has also argued that the deceased Dharmender died because of strangulation/asphyxia. But, in postmortem report, there were several other injuries also, on his body, which have not been explained by the prosecution during the trial. She has prayed that the prosecution has FIR46/2008 PSNand Nagari Page 12/26 miserably failed to prove any case against the accused and therefore, the accused be acquitted for the offences punishable U/s 302/201/34 IPC.
19. I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. Chief Prosecutor for the State and the Ld. Defence Counsels. Perusal of the record shows that the entire prosecution case is based on the 'circumstantial evidence'. The law on 'circumstantial evidence' has been settled by the Hon'ble High Court of Delhi, in case titled as 'Savita Alias Babbal Vs. State of Delhi', reported as 2011 (3) JCC 1687, wherein, it has been held as under:
"47. Now, in this case, it is apparent that there is no direct or ocular evidence. The prosecution was unable to make any headway. It apparently secured a breakthrough in the latter part of 1995, on a tip off that the swami was being blackmailed on telephone. By then, the investigating officer too had changed; PW45 had taken charge of the investigation into the offence. On the basis of these leads, the swami was questioned, later arrested, the recoveries made pursuant to his disclosure, which led to the arrest and implication of other coaccused. Thus, the case hinges on appreciation of the circumstances. Here, a word about the approach of the Court, in respect of circumstantial evidence is necessary. The phrase "men may lie, but circumstances do not" is well worn. At the same time, to get to the truth, the essential requirement of proving, the prosecution allegations, beyond reasonable doubt, does not FIR46/2008 PSNand Nagari Page 13/26 change; the standard or threshold of proof remains constant, in cases involving circumstantial evidence. To place the matter in proper perspective, since the mind has a tendency to boggle, a few tests have been mandated in a string of judicial decisions. Thus, in Hanumant Vs. State of Madhya Pradesh, AIR 1953 SC 343 , the Supreme Court indicated the correct approach of the Courts, in the following words:
"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 all human probability the act must have been done by the accused".
This approach has been consistently followed and applied in several other judgments, notable among them being Tufail Vs. State of Uttar Pradesh, (1969) 3 SCC 198; Ramgopal Vs. State of Maharashtra, AIR 1972 SC 656 and in Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116. Sarda an authority on this and other important aspects of criminal justice/law, put the matter in a lucid terms:
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.FIR46/2008 PSNand Nagari Page 14/26
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra 1973 Cri LJ 1783 where the following observations were made:
"certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 is all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
(emphasis supplied by me).
20. Perusal of the record further shows that in the present case, the FIR46/2008 PSNand Nagari Page 15/26 chain of evidence is incomplete and is broken at several points. The evidence led by the prosecution does not point conclusively, towards the guilt of the accused. From the evidence on record, it cannot be said that it is only the accused, who has committed the murder of the deceased Dharmender, in all probabilities and under all circumstances.
21. Perusal of the record shows that there is no eyewitness to the alleged incident and the prosecution has examined only one witness, namely, PW2 Radhey Shyam, the father of the deceased, to prove that the deceased Dharmender was last seen with the accused Rinku and his coaccused Pintoo @ Raj Kumar (Juvenile). All other witnesses are formal police officials, except PW3 Satish Kumar, who has only identified the dead body of the deceased.
22. Perusal of the testimony of PW2 Radhey Shyam also indicates that there are a large number of material discrepancies in his testimony, which makes his deposition unreliable, untrustworthy and doubtful. PW2 Radhey Shyam has deposed that coaccused Raj Kumar @ Pintoo (Juvenile) was a class mate of his deceased son and accused Rinku also used to visit his house with coaccused Raj Kumar @ Pintoo. This witness has further stated that on 25.01.2008, at about 5.00 p.m., both the accused persons came to his house and called his son and his son left his house with them and since then, he had not FIR46/2008 PSNand Nagari Page 16/26 returned back. He has further stated that at about 6.30 p.m., he went to the house of coaccused Raj Kumar @ Pintoo (Juvenile) to trace his son, where he met both the accused persons and enquired from them about his son. But, none of the accused gave any satisfactory reply to him and thereafter, he searched his son at the residences of his relatives and at the other places, where his son used to go. At about 10.30 p.m., he again went to the house of accused Raj Kumar @ Pintoo, where both the accused were again found present and at that time, they were under the influence of liquor. At that time, they again did not disclose anything to him about his son. This witness has categorically stated that thereafter, he made a phone call on phone No. 100 and thereafter, the PCR reached his house and he lodged a complaint regarding the missing of his son to the PCR officials.
23. Perusal of the record further shows that on 25.01.2008, DD No. 72B was recorded at PSNand Nagari at about 11.40 p.m., wherein, PW2 Radhey Shyam has given his mobile number and has stated that his son Dharmender (since deceased) was not traceable for the last about 4/5 days. DD No. 72B has been proved on record, as Ex.PW8/B. This DD was marked to ASI Rambir Singh for investigations. On the next day, the dead body of the deceased was recovered near liquor shop, Mandoli Chungi railway crossing, in front FIR46/2008 PSNand Nagari Page 17/26 of Shamshan Ghat (cremation ground) at a garbage dump and DD No. 9A, Ex.PW8/A was recorded at PSNand Nagari. Thereafter, an information was given to PW2 Radhey Shyam, by the police officials and thereafter, PW2 Radhey Shyam went to the garbage dump in front of cremation ground near Mandoli Chungi Railway Crossing and identified the dead body of his deceased son. From the record, it is not clear, as to why, PW2 Radhey Shyam has stated to the police officials, while lodging DD No. 72B, that his son, deceased Dharmender was not traceable for last about 4/5 days. It is also not clear, as to why, he failed to disclose the names of the accused persons to the police officials at that time. PW2 Radhey Shyam has not disclosed anything to the police officials on 25.01.2008 regarding the manner, in which, the accused persons have come to his house on 25.01.2008 and took his deceased son with them, as deposed by him, in the Court. The fact that DD No. 72B mentions the mobile phone number of PW2 Radhey Shyam and the fact that deceased Dharmender was missing from his residence for last about 4/5 days, casts a serious doubt on the testimony of PW2 Radhey Shyam.
24. Perusal of the testimony of PW2 Radhey Shyam further shows that in his crossexamination, he has stated that his house was situated at Shanti Garden, whereas, accused Rinku was residing at nearby FIR46/2008 PSNand Nagari Page 18/26 locality in Pratap Nagar and there is a railway line between the Pratap Nagar and Shanti Garden. He has further stated that when accused Rinku and Raj Kumar @ Pintoo (Juvenile) came to his house, he alongwith his wife Smt. Chandra Wati were present in his house and the house of one Achhey Lal was situated opposite his house and house of Ram Lakhan and Ram Kumar are just adjacent to his house. He has also admitted that when accused Raj Kumar @ Pintoo came to his house to call his deceased son, the people were coming and going through the street. He has also admitted that the accused Rinku had remained standing outside his house, while the accused Raj Kumar @ Pintoo came inside his house and called his deceased son Dharmender. He has further stated that his son Dharmender had told him that co accused Raj Kumar @ Pintoo had come to call him and therefore, he was going with him. From this deposition, it cannot be inferred conclusively that accused Rinku had also accompanied coaccused Raj Kumar @ Pintoo to the house of PW2 Radhey Shyam when co accused Raj Kumar @ Pintoo allegedly called deceased Dharmender from his residence, as PW2 Radhey Shyam had remained inside the house while, the accused Rinku was allegedly standing outside the house. Furthermore, the deceased has also not stated to him that accused Rinku had also come to call him. Furthermore, no other FIR46/2008 PSNand Nagari Page 19/26 independent or public witness, including the neighbours or the wife of PW2 Radhey Shyam, namely, Smt. Chandra Wati, have been cited or examined, as a witness, during the trial, to corroborate the deposition of PW2 Radhey Shyam.
25. Perusal of the record further shows that during investigations, the accused Pintoo @ Raj Kumar (Juvenile) was produced before the investigating officer on 28.01.2008, by his father, and on the same day, he was arrested by the police officials and his disclosure statement, Ex.PW10/A was recorded. In his disclosure statement, coaccused Pintoo @ Raj Kumar admitted that he committed the murder of deceased Dharmender alongwith coaccused Rinku. In his disclosure statement, coaccused Pintoo @ Raj Kumar further disclosed that accused Rinku was in need of money to contest his other cases pending against him, for which, he made a plan to kidnap the deceased for ransom. He further disclosed that on 25.01.2008, he went to the residence of deceased Dharmender and took him from his residence and thereafter, both of them took deceased Dharmender to the factory of his father at Gali No. 19, Khasra No. 231, H. No. 618, where both of them committed the murder of deceased Dharmender.
26. Even the disclosure statement of coaccused Pintoo @ Raj Kumar does not corroborate the prosecution story. Coaccused FIR46/2008 PSNand Nagari Page 20/26 Pintoo @ Raj Kumar has failed to disclose that accused Rinku had accompanied him to the residence of deceased Dharmender on 25.01.2008 when the deceased Dharmender was called from his residence. Coaccused Pintoo @ Raj Kumar has failed to disclose that the deceased Dharmeder was taken by both the accused persons on a motorcycle. He has also failed to disclose about any demand of ransom, raised by them with the father of the deceased. The prosecution story has been developed around the need of money by accused Rinku to contest his other criminal cases pending against him. It is surprising to note that no ransom call was made by any of the accused persons with the father of the deceased i.e. PW2 Radhey Shyam. Inspector Bachchu Singh, IO, who has been examined as PW15 has categorically stated that PW2 has not told him anything about any ransom call received by him from any of the accused.
27. In his disclosure statement, Ex.PW10/A, coaccused Pintoo @ Raj Kumar further disclosed that while committing the murder of deceased Dharmender, accused Rinku put a cloth piece of blue colour on the mouth of deceased Dharmender and pressed his throat and during this process, the deceased Dharmender caused a bite injury to accused Rinku and after some time they threw the deceased at a garbage dump near Ashok Nagar Railway Crossing. He further FIR46/2008 PSNand Nagari Page 21/26 disclosed that the cloth piece, which was used by Rinku to cover the mouth of deceased Dharmender was removed from his mouth and was kept with him. It is highly surprising to note, as to why, the accused shall keep the blood stained small cloth piece with them, after commission of the crime. The small piece of blood stained cloth was of no monetary value and would have not served any useful purpose. Therefore, the recovery of said blood stained cloth piece at the instance of Pintoo @ Raj Kumar is not trustworthy. Furthermore, the investigating officers have not taken any photograph of the factory, where the murder of deceased Dharmender was allegedly committed. Even no site plan was prepared when the alleged recovery of the blood stained cloth piece, was affected from the factory, at the instance of coaccused Pintoo @ Raj Kumar.
28. Perusal of the record further shows that during investigations, the police officials came to know that the accused Rinku was in judicial custody in case FIR No. 1621/06 of PSBabugarh U/s 307 IPC at Hapur, DistrictGhaziabad, U.P., as the accused was taken into custody in execution of NBWs against him on 28.01.2008. Thereafter, the investigating officers of the present case moved the appropriate application before the concerned court and thereafter, the accused Rinku was arrested in the present case and was taken on police FIR46/2008 PSNand Nagari Page 22/26 remand.
29. Perusal of the record further shows that after his arrest, the accused Rinku allegedly made a disclosure statement, Ex.PW11/A on 06.02.2008. But, perusal of his disclosure statement, Ex.PW11/A and the disclosure statement of coaccused Pintoo @ Raj Kumar, Ex.PW10/A, indicate that there are several material contradictions in their disclosure statements and there are various inconsistencies, with regard to the manner, in which, the alleged offences were committed by the accused persons. In his disclosure statement, the accused Rinku has also disclosed that during the commission of the crime, deceased Dharmender caught hold of his hair. He further disclosed that a motorcycle was also used by him for calling deceased Dharmender from his residence. In pursuance to his disclosure statement, the accused Rinku got recovered the motorcycle from the parking of the GTB Hospital. But, even the recovery of the motorcycle is doubtful, as no independent public witness was joined by the investigating officers, during the said recovery.
30. Perusal of the record further shows that during investigations, the IO got recovered some strands of hair from the factory at house No. 618, Gali No. 19, Shakti Garden, but neither the disclosure statement, Ex.PW10/A nor the seizure memo, Ex.PW15/D mention FIR46/2008 PSNand Nagari Page 23/26 anything about the said hairs, as to how, these hairs were found at house No. 618, Gali No. 19, Shakti Garden, Meet Nagar, Delhi. Nothing has been disclosed by the coaccused Pintoo @ Raj Kumar in his disclosure statement, Ex.PW10/A or in the seizure memo, Ex.PW15/D regarding the manner, in which, the strands of hair were relevant to the crime. It is pertinent to mention here that during investigations, the IO moved an application before PW14 Smt. Neerja Bhatia, Ld. M.M., KKD Courts, for taking the hair samples of both the accused persons and thereafter, the hair samples of both the accused were taken under the Court orders and the same were sent to FSL for expert opinion. On 16.01.2012, it was observed by the Court that the FSL report dated 24.04.2009, Ex.PW15/H, does not give any information regarding the matching of the alleged hair of the deceased with the hair of either of the accused. Thereafter, the seized hair samples were again deposited at CDFD, Hyderabad, for expert opinion for matching purposes by mitrochondrial process. Fresh report was received from CDFD, Hyderabad and it was concluded in the report, as under:
"Conclusion Since the autosomal DNA from the source of exhibit C (hair of Rinku) has yielded mixed autosomal DNA profile, therefore it can not be compared with the autosomal DNA FIR46/2008 PSNand Nagari Page 24/26 profile of the source of exhibit A (hair recovered from the crime scene).
The hypervariable regions HVI and HVII of mitochondrial DNA profiles of the source of exhibit A (hair recovered from the crime scene) and source of exhibit C (hair of Rinku) shows heteroplasmy. Therefore, no opinion is herewith furnished."
31. The report of CDFD, Hyderabad and the previous FSL report, Ex.PW15/H have failed to prove conclusively that the strands of hair, recovered from the factory at Gali No. 19, Khasra No. 231, H. No. 618, were of accused Rinku.
32. Perusal of the record further shows that the postmortem report of the deceased has been proved on record as Ex.PW12/A. As per the report, the deceased was having a total of 21 antemortem injuries. Injury No. 5 and injury No. 21 were lacerated wounds and the remaining injuries were abrasions and bruises. As per the report Ex.PW12/A, and the opinion given by PW12 Dr. Arvind Kumar, the cause of death was "asphyxia due to manual smothering and associated with manual strangulation". But, no explanation has been give by any of the prosecution witnesses, including PW12 Dr. Arvind Kumar or PW15, IO, Inspector Bachchu Singh, regarding the manner, in which, the deceased Dharmender suffered a total of 21 antemortem injuries.
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33. The circumstances of the case and the discrepancies on record, as discussed above, indicate that the prosecution has failed to establish its case against the accused beyond a shadow of doubt and accordingly, the accused is hereby acquitted for the offences punishable U/s 302/201/34 IPC. The accused, who is in judicial custody, be released henceforth, if not wanted in any other case. The accused is directed to furnish a personal bond in the sum of Rs. 20,000/ with one surety of the like amount. The personal bond has been submitted by the accused, and the same is accepted till 09.04.2013. The accused is permitted to furnish the surety bond till 09.04.2013.
34. The accused is further directed to appear before the appellate Court, as and when, the notice is issued to him by the appellate Court, in any appeal, if preferred by the State, against his acquittal. It is ordered accordingly.
File be consigned to record room, after due compliance. Announced in the open court on this 2nd day of April, 2013.
Brijesh Kumar Garg Special Judge NDPS (NorthEast) ASJ, KKD Courts, Delhi.
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