Delhi District Court
State vs . Manoj Kumar Fir 1227/14 (57325/2016) on 4 September, 2017
State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 57325/16
FIR No. 1227/14
PS Uttam Nagar
U/s 302/392/411 IPC
STATE
VERSUS
MANOJ KUMAR @ HAPPY
S/O SH.MAHINDER PAL
R/O H.NO. A119, GALI NO.5,
VIJAY NAGAR, MOHAN GARDEN,
UTTAM NAGAR, DELHI.
Date of Institution : 10.02.2015
Date of Reserving Judgment : 22.08.2017
Result: Acquitted Page 1 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
Date of Judgment : 04.09.2017
JUDGMENT
1.The present accused namely Manoj Kumar @ Happy has been
facing trial for the offence punishable U/s 392/302/411 IPC.
FACTS :
2.Facts leading to the Prosecution's case are as under :
2.1 On 18.10.2014, on receipt of DD no.5A, Ex.PW12/F SI Brahm Prakash (PW15) alongwith Ct.Rajeev reached at the spot i.e.Hastsal Road, near the gate of Landfill Park, where on the right side of gate, one person aged about 30 years was found lying. His head was towards West side and feet was towards East side. He was wearing T.shirt of grey colour, white colour Sweater and white colour Vest (Ex.PW28/1 Colly). He was also wearing one Muffler of dark colour in his neck, black Payjami and upon it, one half Pant of dark grey colour (Ex.PW28/1 Colly). He was also wearing one black colour Plastic Slipper (Ex.P.12) on his right side foot. On inspecting the body, there was one injury with sharp edged weapon on the right side of his Chest from which the blood had oozed out and Vest & Sweater were smeared with blood. On the back side of head, Result: Acquitted Page 2 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) there was also an injury caused by a sharp edged weapon. Near the deadbody, on the left side, pieces of Marbel were lying in a Sack.
From the search of deadbody, cash of Rs.13/, one Biri and one open pack of 'Maha Pack Bachat Shikhar Pan Masala' were recovered from his half pant and seized vide Memo Ex.PW15/G. The Height of deadbody was 5'8", having Wheatish colour, thin physique, long face and light beard.
2.2. Beat Staff was informed. In the meanwhile, SHO, ATO Inspector Sh.O.P.Thakur alongwith staff had also reached. The spot was inspected and within the area of park of around 30 Feet, on the road, one white colour Cap (Ex.P.15) upon which "Heavy Metal"
with red colour thread was written was found. There was also blood stains inside the Cap. At some distance, one slipper of blue & green colour (Ex.P.17) was found. Thereafter, 10 steps ahead, on the left side of road, one pair of Hawai Slipper (Ex.P.13), written on its strap "ACTION LLTE" was also found. One strap of the said slipper was also found broken.
2.3 Thereafter, Crime team and Dog Squad were called. Photographs were clicked from the spot. The spot was inspected by Result: Acquitted Page 3 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) the Crime team and report was submitted. The identification of the deadbody was tried, but he could not be identified. Thereafter, SI Brahm Prakash (PW15) while leaving Ct.Rajeev at the spot, reached at DDU hospital alongwith the deadbody where he was declared brought dead vide MLC No. 10353/14, Ex.PW10/A. The deadbody was sent to Mortuary. Rukka was prepared and the case was got registered U/s 302 IPC through HC Bajrang (PW14). Thereafter, the investigation was handedeover to Insp.Bhagwan Singh (PW29). Site Plan of the spot (Ex.PW12/G) where the deadbody was found lying and nearby it from where the Slippers were recovered, was prepared by the IO. Statements of police officials were recorded. Proceedings regarding identification of deadbody were conducted. 2.4 On 19.10.2014, Rakesh Kumar (PW2) S/o Sh.Bhola Ram and Krishan Kumar (PW7) S/o Sh. Jorawar Singh reached at PS Uttam Nagar and informed the IO that brother of Rakesh was missing and they had lodged his missing report in the PS. Thereafter, both of them were taken to Mortuary, DDU hospital by HC Bajrang (PW14) and Rakesh Kumar (PW2) identified the deadbody to be of his brother Ashok Kumar. Brother of the deceased namely Rakesh Result: Acquitted Page 4 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Kumar had also informed that the deceased had left the house one day prior to his death for plying the Erickshaw, Ex.P.1 and he was also having Mobile phone number 9718899316 (Ex.P.5) at that time. Thereafter, Inquest papers were prepared. Postmortem was conducted on the deadbody vide P.M.No. 1390/14, Ex.PW12/A and after the postmortem, the same was handedover to his relatives vide receipt Ex.PW7/B. Exhibits were taken into possession and deposited in the Malkhana.
2.5. The doctor had opined that the cause of death is due to hemorrhagic shock subsequent to tearing of the right lung by stab wound and manner of death is homicidal. The CDR of the abovesaid Mobile number 9718899316 was called and its IMEI number was put on tracking. It was informed that in the Mobile instrument of the deceased, a number 9873835427 was used which was in the name of Manoj Kumar R/o A119, Vijay Nagar, Mohan Garden, Uttam Nagar, Delhi.
2.6 During investigation, Manoj Kumar was called and after interrogation, he was arrested in this case. From his personal Search, cash of Rs.500/ was recovered. His disclosure statement Ex.PW Result: Acquitted Page 5 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) 13/C was recorded and in pursuance to which, he got recovered one Knife, Ex.PW12/1 in a white coloured polythene, which was lying in the Tand (Altar/Parchhatti) of the room of his house, duly kept hidden amongst the articles. The IO prepared the sketch of the same and seized it vide Seizure Memo Ex.PW13/E. Accused Manoj Kumar also got recovered one Pant which was blood stained and one blue coloured check Shirt (Ex.P.2 Colly.), upon which a label of "Harvey Hills Fasion" was tagged. Accused Manoj Kumar further disclosed that at the time of incident, he was wearing the above Pant and Shirt. Thereafter, accused Manoj Kumar got recovered one Mobile Phone, Ex.P.5 from the same white colour Polythene, belonging to the deceased and one Key, Ex.P.4 tagged with plastic thread. Thereafter, from the same Tand, he got recovered one Iron Chain Lock & Key Ex.P.3 Colly. and disclosed that with this, he tied the Erickshaw of the deceased with an Electricity Pole. Thereafter, he also got recovered another Mobile phone of Micromax of Silver & Black colour, Ex. P.6, from the same Tand and disclosed that he took the Sim of above Micromax phone i.e.9873835427 and put into the Mobile phone of deceased. All the articles were taken into possession Result: Acquitted Page 6 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) vide Seizure Memo and deposited in the Malkhana except the Key of Erickshaw.
2.7. Thereafter, accused Manoj Kumar led the police party near Electricity Pole, with which he had tied the Erickshaw no. VKP R549 of the deceased for 23 days. Thereafter, he led the police party in front of Vijay Public School, B Block Hastsal, J.J.Colony and after reaching behind the MCD office, he disclosed that on 21.10.2014, he had parked there the Erickshaw Ex.P.1 of the deceased. Two days PC Remand was sought for recovery of Erickshaw. Supplementary Disclosure statement of accused Ex.PW13/F was recorded. During Police Remand, accused Manoj Kumar got recovered Erickshaw, Ex.P.1 of the deceased from the parking of Janak Puri West Metro Station. Site Plan, Ex.PW15/J of the place of recovery of E rickshaw was prepared.
2.8 Subsequent opinion was sought wherein doctor opined that considering the size and nature of size of the Knife and stab wound in the P.M.Report no.1390/14, the external injury no.3 could have been inflicted by the produced weapon of offence or any other sharp pointed weapon whereas external injury no.1,2,4 & 5 were Result: Acquitted Page 7 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) caused by blunt force. Thereafter, the weapon of offence i.e. Knife was also sent to FSL through HC Bajrang vide RC no. 186/21/14. Insp.Mahesh Kumar prepared Scaled Site Plan, Ex.PW22/A of the spot. After completion of investigation, Chargesheet U/s 302/392 IPC against the accused was filed before the Court.
3.Thereafter, the case was committed to the Court of Sessions. Charge U/s 392/302/411 IPC was framed against the accused on 11.03.2015, to which he pleaded not guilty and claimed trial.
4.To prove its case, the prosecution in total has examined 29 witness i.e. PW1 Mohd.Salim, PW2 Rakesh Kumar, PW3 Ramesh, PW4 Vinod Gupta, PW5 Rattan Lal, PW6 Ajit Singh, PW7 Kishan Kumar, PW8 Israr Babu, PW9 Taufiq, PW10 Dr.Naorem Bobo Singh, PW11 HC Raj Pal, PW12 Dr.Anurag Thapar, PW13 HC Ram Pratap, PW14 HC Bajrang, PW15 SI Brahm Prakash (Retired), PW16 HC Sanjeev Kumar, PW17 Ct.Vikas Sharma, PW18 Ct.Sunil, PW19 Ct.Rajvir, PW20 SI Govind, PW21 SI Jai Prakash (Retired), PW22 Insp.Mahesh Kumar, PW23 SI Kalyan Singh, PW24 ASI Roop Singh, PW25 Result: Acquitted Page 8 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) HC Prabhat, PW26 ASI Mahavir, PW27 SI Davender Singh, PW28 Ms.Manisha Upadhyay and PW29 Insp.Bhagwan Singh (Retired).
5.PW1 Mohd.Salim has deposed that he is working as a Cook at 'Mehboob Dhaba' located at Uttam Nagar since 2530 years. He knew accused Manoj @ Happy as he used to come at the 'Dhaba' for taking meals. He has further deposed that probably it was on 19.10.2014, when accused Manoj Kumar came to him and conveyed him that he was having a rickshaw and wanted to sell the same as he was not in need of the same. He further requested him that in case any customer comes to his (PW1) notice, then he (PW1) should convey the same to him (accused Manoj Kumar). This witness has further deposed that he did not remember the exact date, however it was evening time, one person came to him, whose name he could not tell and he (PW1) conveyed the request of Manoj to him for selling him rickshaw. Accused Manoj had also reached at his 'Dhaba' and they talked with each other and thereafter, left his 'Dhaba'. He did not know what had happened thereafter. Lateron, police inquired from him and he narrated the above facts to them.Result: Acquitted Page 9 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
6.PW2 Sh.Rakesh Kumar has deposed that deceased Ashok was his brother. The deceased used to reside with him and used to ply an E rickshaw in Uttam Nagar area. He had got the Erickshaw financed from a Financer. This witness has further deposed that on 17.10.2014, at about 09:00 PM, his brother Ashok had taken food at the home and thereafter, he left the home on his battery rickshaw. He used to return during later hours around 12 mid night, but on that day, he did not return home. He has further deposed that in the morning, he went to the house of his maternal uncle Krishan and conveyed him about nonreturning of Ashok. Thereafter, they searched him in Uttam Nagar and contacted him on his Mobile phone, but the same was "Switched Off". Thereafter, they went to PS Bindapur and lodged a missing report of Ashok vide DD no. 12A. 6.1. This witness has further deposed that on the following day, he noticed an Advertisement in "Dainik Jagran" that one person was stabbed to death and his deadbody was unidentified. Thereafter, he alongwith his uncle Krishan (PW7) went to PS Uttam Nagar, where he was shown a photograph by the police and he identified the photo of his brother Ashok. Thereafter, he went to Mortuary, DDU Result: Acquitted Page 10 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) hospital alongwith the police, where he identified the deadbody of his brother Ashok Kumar. He has further deposed that his brother Ashok was having injuries on his person. After conducting the Postmortem, the deadbody was handedover to him by the police. This witness has proved the photograph of his deceased brother Ashok on Judicial record as Ex.PW2/A. Thereafter, police informed him about the recovery of Erickshaw and he went to PS and identified the E rickshaw there. This witness has identified the Erickshaw of the deceased as Ex. P.1.
7.PW3 Ramesh has deposed that he used to take battery rickshaw on hire for plying the same. He has further deposed that one year ago, one man whose name he did not recollect but he was known as 'Khan' came to him and informed that one person of Uttam Nagar wanted to sell his battery rickshaw. Accordingly, he alongwith that Khan went to Uttam Nagar where two persons came. One was having Chain & lock in his hand. He negotiated about the price of rickshaw and told that man that at that time, he was not having money and the matter could not be settled for purchase of rickshaw. He could not tell the name of that person.Result: Acquitted Page 11 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016) 7.1 This witness was crossexamined by the Ld.Chief P.P.for the State as he was resiling from his previous statement, wherein he admitted that the date of such event was 20.10.2014 and the man who had come to him was Taufiq Khan. He has denied the suggestion of the Ld.Chief PP that on 20.10.2014, he alongwith Taufiq had gone to Shani Bazar, Uttam Nagar, where one Manoj Kumar had met them and had negotiated with Manoj Kumar about the price of the rickshaw and he was deliberately suppressing the name of Manoj Kumar as he was under his influence. He denied the suggestion of the Ld.Chief PP that the accused Manoj Kumar is the person with whom he had negotiated regarding price of rickshaw at the instance of Taufiq. This witness voluntarily deposed that police had shown him the accused Manoj at his shop and at that point of time, he had informed the police that he was the person who was having chain and lock and had come with Khan. However, he has admitted that he was the same person.
8.PW4 Vinod Gupta has deposed that he worked as parking attendant at Janakpuri West for about one month from September, 2014 to October, 2014. On 19.10.2014, police contacted him and Result: Acquitted Page 12 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) inquired about a Cycle Rickshaw. He informed that one Cycle Rickshaw was lying in the parking for the last 78 days and the same was parked in the parking lot under a Parking receipt. He further deposed that on the direction of Police, he took the battery rickshaw from there and deposited it in PS Uttam Nagar. He further informed the police that he could not identify the person who had left the said battery rickshaw in the Parking.
8.1. This witness was crossexamined by the Ld.Chief PP for the State as he was resiling from his previous statement, wherein he identified his signatures at point A on the Seizure memo of Battery rickshaw Ex.PW4/A. He further deposed that he did not remember if the said battery rickshaw was taken away from the parking by the depositor as some other attendant also used to attend the parking lot in his absence. In the crossexamination done by ld.Chief PP that he did not remember, if the police had come to parking on 24.10.2014 alongwith a person who used to park the said battery rickshaw in the Parking lot and at his pointing out the said battery rickshaw was taken into possession by the police in his presence. He admitted in the crossexamination done by Ld.Chief PP that the parking register Result: Acquitted Page 13 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) was taken into possession by the police from his employer on 24.10.2014. This witness has identified his signatures at point A on the Seizure memo of register Ex.PW4/B. This witness has also identified the said Register before the Court as Ex.PW4/P.1, however, he could not tell as to whether the entry regarding the said fact was in his handwriting. This witness has denied the suggestion that the battery rickshaw was taken into possession from the parking lot in his presence at the instance of accused Manoj and at that time the document was prepared as Ex.PW4/A and he had signed at point A. He has also denied the suggestion that he knew accused Manoj who had deposited the battery rickshaw in parking and deliberately he is not naming and identifying him as he has been won over by him.
9.PW5 Rattan Lal has deposed that he used to park his handcart near Gurudwara, Uttam Nagar. He did not know Ashok Kumar. One day he saw Neeta driving his Erickshaw. At that time, there were 2 3 passengers in the Erickshaw. He knew Neeta from earlier as he and himself used to sell ice cream on handcart. Lateron, Neeta left the job of selling Ice cream on handcart and started plying E rickshaw. He has further deposed that it was 2/4 days prior to the Result: Acquitted Page 14 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Deepawali of last year, that at 10/10:30 PM, he saw Neeta. The brother of Neeta had come to him inquiring about Neeta on the following day. He did not know the other name of Neeta. This witness has identified the photograph of deceased Ashok Kumar Mark PW5/A, B and C, to be the same person to whom he knew as Neeta.
10.PW6 Ajit Singh has proved the photocopy of CAF of Satish Kumar having Mobile number 9718899316 as Ex.PW6/A, his Driving Licence as Ex.PW6/B, Certificate U/s 65B of the Indian Evidence Act as Ex.PW6/C, CDR in respect of abovesaid Mobile Number as Ex.PW6/D.
11.PW7 Kishan Kumar has deposed that deceased Ashok was his Bhanja (Sister's son) and used to ply Battery rickshaw in the area of PS Uttam Nagar. This witness has further deposed that on 18.10.2014, he received a phone call of Rakesh during morning hours to the effect that Ashok had not returned home since past night, who had gone to ply battery rickshaw and he tried to contact him but the same was "Switched Off". He has further deposed that one Ice Cream Vendor informed them that Ashok was seen by him in the Result: Acquitted Page 15 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) company of passengers during night hours and Ashok had assured him that he would return and take icecream from him, but he did not come to him. On the following day i.e.19.10.2014, he read news in "Dainik Jagran" to the effect that a deadbody was found. Thereafter, he alongwith Rakesh reached at PS Uttam Nagar and from there to Mortuary, DDU hospital, where he had identified the deadbody of Ashok Kumar vide Statement Ex.PW7/A. He has further deposed that after postmortem, they had taken the deadbody of the deceased vide receipt Ex.PW7/B.
12.PW8 Israr Babu has proved the photocopy of CAF of Mobile Number 9873835427 as Ex.PW8/A, I/D proof as Ex.PW8/B, Photocopy of CDR as Ex.PW8/C and Certificate U/s 65B of the Indian Evidence Act as Ex.PW8/D.
13.PW9 Taufiq has deposed that he used to ply Battery rickshaw owned by Ramesh. He used to take meal in 'Dhaba' at Uttam Nagar and the said 'Dhaba wala' told him that one rickshaw was to be sold and in case he wanted to purchase, then he can take the same. The witness informed him that he was not having money to purchase the rickshaw. Then he told this fact to Ramesh then Ramesh told him that Result: Acquitted Page 16 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) he will have to drive that rickshaw in case the same is purchased. He replied in affirmative that he can ply the same. Thereafter, he and Ramesh had gone to see the battery rickshaw at Uttam Nagar, but the battery rickshaw was not found. He has further stated that none had accompanied him and Ramesh to that place.
13.1 This witness was crossexamined by ld.Chief PP for the State as he was resiling from his previous statement wherein he has deposed that the name of that 'Dhaba wala' could be 'Salim'. He has admitted that Salim had conveyed him that one battery rickshaw was to be sold. He has denied the suggestion that Salim had informed him that one person namely Manoj was willing to sell Battery rickshaw. He has admitted that he had informed the 'Dhaba wala' Salim that he was not having money to purchase the battery rickshaw however, he can tell the person whose rickshaw he was plying, to purchase the same. This witness has denied the suggestion of Ld.Chief PP that one person namely Manoj was the person who took them to a street, behind Shani Bazar School, on the following day after 09:00 PM or 09:30 PM, when he had reached the 'Dhaba' or that Manoj had shown him the said battery rickshaw, or that the said Result: Acquitted Page 17 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) battery rickshaw was of red colour and Manoj provided him the key of battery rickshaw for testing. He has denied the suggestion of Ld.Chief PP that after testing the rickshaw, he assured accused Manoj that he will come on the following day and purchase that rickshaw. He has further deposed that on the next day, he went to Shani Bazar but the said rickshaw was not found there. This witness has denied the suggestion that accused Manoj was the same person who had taken him and Ramesh to show the rickshaw, stationed in the street and deliberately not identifying the accused Manoj and deliberately suppressing the true facts.
14.PW10 Dr.Naorem Bobo Singh, SR (Casualty), DDU hospital has proved the MLC of deceased as Ex.PW10/A and also identified his signatures thereupon at point A.
15.PW11 HC Raj Pal has proved the computerized copy of present FIR as Ex.PW11/A, vide DD no. 11A, his endorsement on the rukka from portion A to A as Ex.PW11/B and copy of Certificate U/s 65B of the Indian Evidence Act as Ex.PW11/C. This witness has also proved the handwritten copy of DD no.5A as Ex.PW12/F. He has further deposed that this DD no.5A was assigned to SI Brahm Result: Acquitted Page 18 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Prakash who had later sent the Tehrir Ex.PW15/A in reference to the said DD no.5A.
16.PW12 Dr.Anurag Thapar, Sr.Resident, Department of Forensic Medicines, SGM Hospital has proved the P.M.report of the deceased as Ex.PW12/A. He has also proved the papers for conducting Postmortem Examination as Ex.PW12/B to Ex.PW12/H, Ex.PW 7/A, Ex.PW12/I, Ex.PW10/A, Ex.PW12/J and Ex.PW12/K and also identified his signatures at points A on each exhibit. 16.1. This witness had opined that the "Cause of death is due to haemhorragic shock subsequent to tearing of right lung by stab wound. Manner of death was homicidal. All injuries were fresh, antemortem in nature and recent in duration. Time since death was approx. 38 to 42 hours". He has also proved his Subsequent opinion regarding Knife as Ex.PW12/L and opined that external injury no.3 in the P.M.report could have been inflicted by the produced weapon of offence or any other sharp pointed weapon, whereas external injury no.1,2,4,5 are caused by blunt force. The Sketch of the said Knife was also prepared by this witness which is Result: Acquitted Page 19 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) proved as Ex.PW12/M. This witness has also identified the Knife before the Court as Ex.PW12/1.
17.PW13 HC Ram Pratap has proved the Arrest Memo, Personal Search Memo and Disclosure statement of accused Manoj Kumar as Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively. This witness has also proved the Sketch of the Knife as Ex.PW13/D, its Seizure Memo Ex. PW13/E, Seizure Memo Ex.PW13/F regarding the recovered articles at the instance of accused from his house, Pointing Out Memo of the place where he had hidden the robbed E rickshaw belonging to the deceased as Ex.PW13/G, another Pointing Out Memo of the place where on 21.10.2014, he had brought and kept Erickshaw of the deceased as Ex.PW13/H, Another pointing Out Memo of the place of murder i.e.between Holi Chowk and Hastsal Road near Landfill Park as Ex.PW13/I. This witness has also identified the case property before the Court i.e.Knife as Ex. PW12/1, Shirt & Pant of the accused as Ex.P.2 (Colly.), The Chain, Lock & Key as Ex.P.3 and Key of Erickshaw as Ex.P.4, Mobile Phone of the deceased as Ex.P.5 and Mobile phone of the accused as Result: Acquitted Page 20 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Ex.P.6.
18.PW14 HC Bajrang has deposed that on 18.10.2014, after receiving phone call from SI Brahm Prakash, he had gone to place near Landfill Park, where SI Brahm Prakash met him and handedover the rukka for getting the case registration. After registration of the FIR, he returned at the spot and handedover the original rukka and copy of FIR to Insp.Bhagwan Singh. This witness had again joined the investigation on 19.10.2014 and proved before the Court the Seizure Memo of Blood and earth control as Ex.PW14/A, Seizure Memo of blood stained soil and earth control as Ex.PW14/B and Seizure Memo of Chappal as Ex.PW14/C. 18.1 This witness has further deposed that on 15.12.2014, on the direction of the IO, he collected twelve pullandas from the MHC(M) alongwith three sample seals of DFMT of DDU hospital and deposited them in FSL, Rohini, vide RC no. 186/21/14. He has also proved the copy of acknowledgement as Mark PW14/D.
19.PW15 SI Brahm Prakash (retired), Ist IO of the case, has deposed the manner in which the investigation was conducted by him Result: Acquitted Page 21 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) in the present case. He has proved the copy of DD no. 5A as Ex.PW 12/F, MLC of the deceased as Ex.PW10/A, rukka as Ex.PW15/A, Tehrir as Ex.PW15/A, Site Plan of place of recovery as Ex.PW 12/G, Seizure Memo of Cap as Ex.PW15/B, Seizure memo of Pair of Chappal as Ex.PW15/C, Seizure memo of Single Slipper as Ex.PW 15/D, Seizure Memo of Sack of stones as Ex.PW15/E, Seizure memo of blood stained soil and earth control as Ex.PW14/A, Seizure memo of another blood stained soil as Ex.PW14/B, Seizure memo of another single slipper as Ex.PW14/C. This witness has also proved the Arrest Memo, Personal Search Memo as well as disclosure statement of accused as Ex.PW13/A, Ex.PW13/B and Ex.PW 13/C respectively. He has also proved the Sketch of Knife as Ex.PW 13/D, its Seizure Memo Ex.PW13/E, Seizure Memo of Clothes of the accused, Chain, lock, Key, Mobile of accused and Mobile of deceased as Ex.PW13/F, Pointing Out Memo of the Electric Pole where accused had kept the robbed Erickshaw as Ex.PW13/G, Pointing Out Memo of the place where on 21.10.2014, he had parked the stolen E rickshaw as Ex.PW13/H and another Pointing Out Memo of the Result: Acquitted Page 22 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) place of murder of deceased as Ex.PW13/I. This witness has also proved the supplementary disclosure statement of accused as Ex.PW 15/F, Seizure Memo of Erickshaw as Ex.PW4/A, Seizure Memo of register of Parking lot of Janak Puri West Metro Station as Ex.PW 4/B, Seizure memo of articles recovered from the search of deceased as Ex.PW15/G, Seizure Memo of Erickshaw and its Key as Ex.PW 15/H and Site Plan as Ex.PW15/J. This witness has also identified the case property before the Court, which was seized in his presence.
20.PW16 HC Sanjeev Kumar has proved the photographs of the spot, which he had clicked at the spot from the different angles on 19.10.2014, as Ex.PW16/P.1 to Ex.PW16/P.5 and Negatives as Ex.PW16/A.1 to Ex.PW16/A.5.
21.PW17 Ct.Vikas Sharma has deposed that on 18.10.2014, after receiving information from the Police Control Room, he had reached Park in residential area and on the instance of SI Brahm Prakash, he had monitored sniffer dog namely Mozard. The dog had smelled one Slipper lying at the spot and had proceeded towards the left exit of the park and had stopped near concrete waste (ररडड बजरड) lying on the road. Another slipper was lying near that concrete waste. Dog Result: Acquitted Page 23 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) stopped there. The response of the sniffer Dog in respect of the slippers found and smelled in the park and its trail upto the other slipper at a little distance from the park indicates that both the slippers were related to same person.
22.PW18 Ct.Sunil, Photographer, Mobile Crime Team had also proved the 14 photographs which he had taken on 18.10.2014 from the spot where the deadbody was lying, as Ex.PW18/P.1 to Ex.PW 18/P.14 and Negatives as Ex.PW18/A.1 to Ex.PW18/A.14.
23.PW19 Ct.Rajvir has deposed that on 18.10.2014, duty officer had handedover him Print outs of FIR No. 1227/14 and he delivered one each to Ld.M.M., Joint C.P. and DCP West.
24.PW20 SI Govind has deposed that on 19.10.2014, he alongwith IO/Insp.Bhagwan Singh had visited Mortuary, DDU hospital and the IO collected sealed pullandas bearing hospital seal purported to be containing blood in gauze, clothes of deceased and sample Seal. This witness has proved its Seizure Memo as Ex.PW20/A.
25.PW21 Retired SI Jai Prakash has deposed that in the intervening night of 17/18.10.2014, he was on patrolling duty during the night time and reached Holi Chowk via Hastsal Road at about 12:15AM.Result: Acquitted Page 24 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016) He noticed that a person was lying in unconscious state near gate of the park situated in Holi Chowk. He conveyed this information through his mobile phone to duty officer. Thereafter, SI Brahm Prakash alongwith beat staff had responded at the spot to his call.
26.PW22 Insp.Mahesh Kumar, Draughtsman, Crime Branch has proved Scaled Site Plan which was prepared by him on 07.01.2015, on the basis of rough notes and measurements as Ex.PW22/A.
27.PW23 SI Kalyan Singh has deposed that on 18.10.2014, after receiving information through District Control Room, he alongwith Ct.Sunil (Photographer) and HC Ramesh (Finger Prints Proficient) had reached at Hastsal Road, Landfill Park, Uttam Nagar, Delhi at about 01:40 AM, where they noticed a body of male aged about 30 years. The deceased was found wearing grey coloured full sleeves T.Shirt, white Sweater, dark grey coloured half pant and black colour Payjami and was also wearing one dark colour muffler. He has further deposed that on inspecting the body, it was noticed that there was sharp wound on upper portion of right side chest below the shoulder. There was a wound on the back side of his head. Blood was found on his clothes which he was wearing above the belt. Saliva Result: Acquitted Page 25 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) was noticed having oozed out from his mouth. One black coloured right foot slipper was found lying near the body. This witness has proved his report as Ex.PW12/K.
28.PW24 ASI Roop Singh has proved the photocopy of the DD no.12A as Ex. PW24/A.
29.PW25 HC Prabhat has deposed that on 18.10.2014, missing report regarding missing of one Ashok Kumar since 17.10.2014, vide DD no.12A was assigned to him and he had completed the Missing person Form on the computer. He has further deposed that at about 12 noon, he came to know that the missing person may be Ashok Kumar who was found murdered in the area of PS Uttam Nagar, hence, further search was not conducted.
30.PW26 ASI Mahavir has proved the Seizure Memo of the Parking register as Ex.PW4/B as well as Seizure Memo of Battery rickshaw as Ex.PW4/A and supplementary disclosure statement of accused as Ex.PW13/F.
31.PW27 SI Devender Singh has proved the Crime Team Report as Ex.PW27/A and photographs of the Spot as Ex.PW16/P.1 to Ex.Result: Acquitted Page 26 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016) PW16/P.5 respectively.
32.PW28 Ms.Manisha Upadhyaya, Asstt.Director (Biology) FSL, Rohini has proved her 'report (Biological)' as Ex.PW28/A and deposed that the blood was detected on exhibits 1a, 2,3,5,10, 11a, 11b, 11c, 11d, 11f and 12. Blood could not be detected on exhibits 1b,4,6,7,8,9 and 11e. She has also proved her 'Serological report' as Ex.PW28/B and deposed that human blood of 'B' group was found on exhibits 1a, 10, 11a, 11b, 11c, 11d, 11f and 12. Human blood was detected on exhibits 2,3 and 5.
32.1 This witness has also identified the case property before the Court i.e. Ex.P28/1 (Clothes of the deceased), Ex.P.2 (one blue green check shirt and one black Pant), Ex.P.15 (Cap) and Ex.PW12/1 (Knife).
33.PW29 Insp.Bhagwan Singh, 2nd IO of this case, has deposed regarding all the investigation conducted by him in the present case. He has proved the copy of DD no.5A as Ex.PW12/F, MLC of the deceased Ex.PW10/A, Site Plan of the place of murder of deceased as Ex.PW12/G, Seizure Memo of Plastic Gunny bag (Sack) having Result: Acquitted Page 27 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) stones as Ex.PW15/E, Seizure memo of one Slipper (Ex.P.12) as Ex.PW12/I, Seizue memo of Cap (Ex.P.15) as Ex.PW15/B, Seizure Memo of another Single Slipper (Ex.P.17) as Ex.PW15/D, Seizure Memo of Pair of Slippers (Ex.P.13 Colly.) as Ex.PW15/C, Seizure Memo of belongings of deceased i.e. Rs.13/ and Pan Masala Packet as Ex. PW15/G, his Request Ex.PW12/B, Brief Facts as Ex.PW 12/C, Form 25.35 (1)(B) as Ex.PW12/D, Statements of Rakesh and Krishan as Ex.PW12/H and Ex.PW7/A, P.M.Report as Ex.PW 12/A and copy of Receipt as Ex.PW7/B. 33.1. This witness has also identified the Seizure Memo of blood gauze of the deceased as Ex.PW20/A, Seizure Memo of blood stained Mud and Earth control as Ex.PW14/A and Ex.PW14/B respectively, Seizure Memo of another Slipper (Ex.P.14) as Ex.PW 14/C, Crime Team Report Ex.PW27/A. He has also proved the CAF of Mobile phone number 9718899316 as Ex.PW8/A. This witness has also proved the Arrest Memo, Personal Search Memo and Disclosure statement of accused as Ex.PW13/A, Ex.PW13/B and Ex.PW13/C respectively, Seizure Memo of clothes of the accused, Result: Acquitted Page 28 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Iron Chain, lock and Key and also Key of Erickshaw as Ex.PW 13/F, Sketch of Knife as Ex.PW13/D, its Seizure Memo as Ex.PW 13/E, Pointing Out memo of the place where he had kept the E rickshaw as Ex.PW13/G, Pointing Out Memo of the place where he had kept the Erickshaw i.e.B Block, Hastsal Road, J J Colony, as Ex.PW13/H as well as Pointing out Memo of the place where he had committed the murder of deceased Ashok Kumar as Ex.PW13/I. He has also proved the supplementary disclosure statement of accused as Ex.PW13/F, Seizure memo of Erickshaw as Ex.PW4/A, Seizure Memo of Parking register as Ex. PW4/B, Subsequent Opinion of the doctor as Ex.PW12/L. He has also proved the Scaled Site Plan as Ex.PW22/A, Site Plan of the place from where the Erickshaw was recovered as Ex.PW15/J, Seizure Memo of Key of Erickshaw as Ex.PW15/H and CDRs of Mobile phone of deceased and the accused as Ex.PW8/C and Ex.PW6/D.
34.Thereafter, statement of accused U/s 313 Cr.P.C. was recorded, wherein he has deposed that he was called in PS on 18.10.2014 at about 05:0006:00 AM and booked him in the present case. Many Result: Acquitted Page 29 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) other persons were also present in the PS and the police were asking regarding the alleged murder case. His (accused) Mobile phones were taken by the police and he was detained for 3 to 4 days in the PS. He has further deposed that lateron the police arrested him in the present case. He has been falsely implicated in this case. After 18.10.2014, he never visited to his house. He claims that recovery has been falsely planted upon him.
34.1. In defence evidence, accused examined his wife namely Smt.Simran before the Court, wherein she has deposed that on 18.10.2014 at about 05:00 or 06:00 AM, police visited her house and inquired about her husband/accused, who was present in the house at that time. Police took her husband/accused alongwith them. She has further deposed that police officials had also taken two mobile instruments which were lying in their house. In the evening, she went to PS Uttam Nagar, but the Santry had not allowed her to enter the PS on the pretext that some people were being interrogated in respect of a murder case.
34.2. She further deposed that on the next day, she again visited the PS Uttam Nagar and she was informed that her husband Result: Acquitted Page 30 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) was being taken to PS Rajouri Garden. She was also taken by the police at PS Rajouri Garden, detained her till night and left her in Uttam Nagar at about 10:00 PM. She again visited PS Uttam Nagar on 20.10.2014 and she was told that her husband had been taken to PS Vikas Puri. She again visited PS Uttam Nagar next day and met SI Brahm Prakash and inquired from him as to why they had confined her husband. SI Brahm Prakash had not responded satisfactory it in the contrary, he threatened her not to lodge any complaint, otherwise, he will put her and her children behind bars. She has further deposed that on 25.10.2014, SI Brahm Prakash had made a telephonic call and informed her that they were taking her husband to Court and she was suggested to reach Tis Hazari Court.
35.I have heard Sh.B.B.Bhasin, ld.Addl. P.P.for the State and Sh.Hardwari Lal, ld. Counsel for the accused and have perused the record carefully.
36.Before Proceeding further, I must point out that in accordance with Section 354 (1)(b) Cr.P.C., the main points for determination which are to be considered can be culled out as below : (1)Whether the Victim Ashok Kumar died an Result: Acquitted Page 31 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) unnatural death?
(2) Whether the accused Manoj Kumar had, with an intention to commit robbery upon the Victim Ashok Kumar (since deceased) caused his death by inflicting injuries upon him from the recovered knife tentamounting to an act of causing culpable homicide of the victim, amounting to murder?
(3)Alternatively, whether the accused is guilty of retaining stolen property i.e. Battery Rickshaw Ex.P.1, its Keys Ex.P.3 (Colly.), his Mobile Phone with Sim Card No. 9718899316 belonging to the Victim knowing or having reasons to believe the same to be stolen property or not?
37. Before analysing these facts, I am to point out here that the above broad points for determination are solely dependent on the evidence produced by the prosecution which is almost completely "Circumstantial in nature". There is no eye witness account available on record. The arrest of the accused is on the basis of Result: Acquitted Page 32 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Mobile Phone surveillance which has been made on 22.10.2014 i.e. after about four days of the date of incident i.e. the night intervening 17/18th October, 2014. Still, in order to ascertain whether the death occurred before 12 AM on 17th Oct. 2014 or post 12 AM on 18 th Oct., 2014, one piece of evidence can be looked into which is the Postmortem Report Ex.PW12/A of the deceased proved by PW12 Dr.Anurag Thapar. It was started on 19.10.2014 at 03:15 PM and concluded at 04:45 PM. Time since death as opined by the doctor is 38 to 42 hours prior to P.M. examination. Thus, the Victim may have succumbed to his injuries on 18.10.2014 between 01:15 AM to 05:15 AM as per this report.
38.The first witness who saw the Victim lying on the spot as "Unconscious" is Patrolling Officer/PW21 SI Jai Prakash (now Retired). He was on Patrolling on the intervening night from 08:00 PM to 08:00 AM. According to him, he reached Holi Chowk at 12:15 AM and noticed this Victim apparently lying in "Unconscious" state near the Park. He intimated the concerned duty officer. SI Brahm Prakash/PW15 reached there within 5 to 7 Result: Acquitted Page 33 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) minutes.
39.The Duty Officer/ PW11 HC Raj Pal recorded DD no.5A in DD register, handwritten copy of which is Ex.PW12/F (OS&R). It was recorded at 12:20 AM on 17.10.2014. The date ought to have been recorded as 18.10.2014 being post mid night. What can be observed is that the approximation of time of death given by the concerned doctor is further expanded in view of the fact that PW21/SI Jai Prakash had spotted the Victim at 12:15 AM. This is corroborated by DD no.5A recorded at 12:20 AM. Thus, in all eventuality, the Victim was subjected to assault prior to 12:15 AM i.e. the intervening night of 17/18.10.2014. This analysis narrows down the time since death.
40.The Prosecution is duty bound to establish presence of the accused at the spot for the aforestated time period.
41.There is no point specific evidence led on this aspect but the Court has gauzed it from testimony of PW2/Rakesh Kumar i.e.brother of the deceased, whose residential address is same as that of the victim himself. He states that his brother/Victim left home at about 09:00 PM on 17.10.2014. Thus, the Victim was alive between 09:00 PM Result: Acquitted Page 34 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) till about 12:15 AM on the intervening night of 17/18.10.2014.
Sometime in between, he was allegedly robbed and murdered.
42.No evidence qua time can be seen in testimony of Victim's Uncle/PW7 Krishan as he resides else where.
43.The next person who saw the victim who is projected as the person who saw the Victim alive is the Ice Cream Vender namely PW5 Rattan Lal. As per his statement U/s 161 Cr.P.C., he and Victim used to sell Ice Cream in the area of Uttam Nagar but the Victim started driving Battery Rickshaw one year prior to the incident. On 17.10.2014, at about 11:00 PM, he saw him driving the Battery Rickshaw towards Najafgarh Road from Arya Smaj Road with one passenger. PW5 Rattan Lal offered him Ice Cream on which Victim responded that he will come back for it after dropping his passenger, but he did not return.
44.In his Court deposition, he claims to be not knowing any Ashok Kumar. He does depose about the fact that one day (date not provided), he saw one Neeta driving his Cycle Rickshaw with 2/3 passengers in it. He waived his hands towards PW5 and said "ररम ररम". he new Neeta as earlier, both of them used to sell Ice Cream.
Result: Acquitted Page 35 of 83State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Thereafter Victim started plying Battery Rickshaw. He had seen him at about 10:00 PM to 10:30 PM on a day that was 2/4 days prior to "Deepawali" of "last year". He was examined on 20.11.2015. The incident occurred in October, 2014. Thus, he is referring to Deepawali of the year 2014. The witness did not know any other name of Neeta but he identified Neeta as the Victim herein from his Photographs Ex.PW5/A, Ex.PW5/B and Ex.PW5/C respectively, which were clicked by PW18 Ct.Sunil, the Negatives of which were duly proved besides the Positives as taken from an official Non Digital Camera. The witness is therefore, by no element of any doubt, referring to the deceased herein i.e.Manoj Kumar known by him as "Neeta".
45.This implies that the deceased was alive even at 10:00 PM to 10:30 PM. Thus, he was attacked between 10:00 PM/10:30PM and 12:15 AM.
46.The Prosecution has to account for the movements of the accused herein between the above period of 02:15 hours.
47.I have already pointed out that the entire prosecution case is based on circumstances. With this analyses of the material evidence Result: Acquitted Page 36 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) establishing the time period of the alleged attack and robbery on the Victim, the Court now proceeds to analyse the points for determination.
48. (1) WHETHER THE VICTIM DIED AN UNNATURAL DEATH?
Section 299 IPC is in regard to causing death of a human being by another human being. Such death should not be normal and such homicide should be culpable in nature.
49.In the instant case, there is no denial by the accused that Ashok (deceased) was not found dead on the date, place and time of incident in the manner stated by the prosecution i.e. on sustaining Stab injury as well as Blunt injury caused by Sharp/Blunt Weapon. In his statement U/s 313 Cr.P.C., the accused has mechanically responded to majority of the prosecution's case by showing ignorance and answering a vast majority of questions put to him while describing incriminating circumstances in evidence against him as "I do not know".
50. He further claims ignorance that the deceased was brought dead to the DDU hospital vide MLC Ex.PW10/A and likewise, feigns Result: Acquitted Page 37 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) ignorance regarding the Postmortem examination Report Ex.PW 12/A.
51.Nevertheless, PW12 Dr.Anurag Thapar has opined vide Postmortem Report that the cause of death is "due to haemhorragic Shock subsequent to tearing right lung by stab wound". He has deposed that the manner of death was "homicidal" and all injuries were fresh, antemortem in nature and recent in duration.
52.He found following injuries on body of the deceased upon External Examination viz :
(1) Multiple abrasions reddish in colour over an area of 4 x 2 cm.were present 3 cm below left knee.
(2) Abrasion reddish in colour measuring 2 x 0.5 cm was present on front of right Knee.
(3) Stab wound on front right side of Chest measuring 3.4 cm x 2 cm. X cavity deep was present. It was situated 7.5 cm above the right nipple and 9.5 cm.below the mid point of collar bone. It was obliquely placed and its upper lateral angle was acute and lower medial end was obtuse. Clotted blood was present all Result: Acquitted Page 38 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) around the area.
(4) Abrasion reddish in colour measuring 1 cm. X 0.5 cm.was present on the back corresponding to injury no.3. (5) Incised looking lacerated wound measuring 3.5 cm x 0.3 cm x skin deep was present over the occiput region of head.
53. On Internal examination, following injuries were found on the body of deceased viz :
(1) The scalp bears lacerated wound as mentioned in external injury no.5.
(2) Fracture of second and third rib on the right side underlying the stab wound. Haemorrhage of surrounding area was present. Approx.1200 ml.of clotted blood was present in the pleural cavity.
(3) Stab injury measuring 2.5 x 1 cm.was present over the anterior surface on the right lung corresponding to external injury no.3.
(4) Stomach contained 200 ml.of yellowish semi digested food.
54.The Court is not commenting at this stage as to whether this Act of Result: Acquitted Page 39 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Culpable homicide amounting to the first kind of unlawful homicide is committed by the accused or not as it shall be considered in the second point of determination.
55.The Court is also not commenting whether (A) it was an act of the accused done with the intention of causing death; or (B) it was an act of the accused with the intention of causing such bodily injuries, as described in the Postmortem Report, as is likely to cause death; or (C) it was an act of the accused committed with the knowledge that it was likely to cause death. These aspects are also to be considered while determing the second point as above.
56. Suffice would be to say that even though PW15 SI Brahm Prakash has not described as to which particular injury, independent of the others, or for that matter, whether all injuries if taken collectively, was/were sufficient in the ordinary course of nature to have caused death of victim Ashok Kumar, the death would be an un natural death and not a natural one.
57. Hence, the Prosecution proves that the Victim had died "an Unnatural death".
58. (2) Whether the accused Manoj Kumar had with an Result: Acquitted Page 40 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) intention to commit robbery upon the victim Ashok Kumar (since deceased) caused his death by inflicting injuries upon him from the recovered knife tentamounting to an act of causing culpable homicide of the victim, amounting to Murder?
59. The Court has already observed that the entire prosecution's case is based on "Circumstantial Evidence". There is no eye witness to the incident. In most of the cases, where heinous crime is committed, there is hardly any eye witness. In majority of cases, liability of accused is dependent upon the "Circumstantial Evidence" and also on "Last Seen Theory".
60.In the instant case, the prosecution has not pleaded applicability of the "last seen theory" as the only person who saw the victim alive around 10:00 PM - 10:30 PM, was the Ice Cream Vendor/PW5 Rattan Lal who identified the driver of the ERickshaw as one "Neeta" and who also identified the said "Neeta" to be the Victim Ashok Kumar on the basis of his photographs Ex.PW5/A to Ex.PW 5/C. At the same time, this witness neither stated in his statement U/s 161 Cr.P.C. or in the Court statement that he had also seen the Result: Acquitted Page 41 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) passengers of ERickshaw, one of whom was the accused.
61.There is no other witness to that effect and thus, there is no applicability of the "last seen theory" in this case.
62.So far as the "Circumstantial Evidence" is concerned, it should indicate such incriminating circumstances which, without any "break of chain of events", are leading towards only and only one conclusion, i.e.guilt of the accused.
63.Such should be the "Chain of circumstances" that none of it should be broken and conclusive proof of all such circumstances can then be put into effect to bring home and establish the culpability of the accused.
64.Reverting back to the discussion made in Paras 37 to 47 of this Judgment, the prosecution is to prove that "Circumstantial Evidence" is such that establishes presence of accused with the Victim at the date, place and time of the incident to begin with.
65.The main evidence that came as the first clue in investigation is in the form of police statement given by the Victim's brother/PW2 Sh.Rakesh Kumar and Victim's maternal uncle/PW7 Kishan Kumar to the IO of this case wherein they disclosed that the Victim was Result: Acquitted Page 42 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) carrying one Mobile Phone having no. 9718899316 which was found "Switched Off" since the morning of 18.10.2014. Based on the Missing Person Report and Inquiry thereupon by officials of PS Bindapur examined as PW24/ASI Roop Singh and PW25/HC Prabhat and the statements of PW2/Rakesh Kumar as well as PW 7/Kishan Kumar, the deadbody was identified and the Mobile Phone details of the above Mobile Phone number were obtained. The Call detail Records of this number are proved in accordance with law by Nodal Officer of the concerned Cell Service Provider/PW6 Sh.Ajit Singh.
66.The IO got input from the Cell Service provider that Victim's Mobile Phone Sim Card aforestated was used for some period in another Mobile Phone which, upon investigation, was found to be registered in the name of the accused. He was not found on the address provided on the CAF Ex.PW29/A as he had shifted to a nearby area i.e. his present residence from where he is shown to have been arrested on 22.10.2014. Further, the accused made a disclosure statement Ex. PW13/C pursuant to which the Victim's Mobile Phone Ex.P.5 and the Mobile Phone of the accused Ex.P.6 were recovered Result: Acquitted Page 43 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) at the instance of accused from his house.
67.Interestingly, the Seizure Memos are silent as to whether the Sim Cards of both the Mobile Phones were also separately seized; or Seized alongwith the Cell Phones being inserted in them; or seized at all or not.
68.The prosecution urges this Court to rely on the disclosure statement aforestated, besides the Supplementary disclosure statement dated 24.10.2014 Ex.PW15/F with respect to the fact that the recoveries, as aforestated, were indeed effected at the instance of the accused and thus, admissible against him in evidence U/s 27 of the Indian Evidence Act.
69.Of course, similar is the argument with respect to the recovery of Iron Chain, lock and Key Ex.P.3 (Colly.), Key of Erickshaw Ex.P.4; Erickshaw itself Ex.P.1 and also the Shirt & Pant of the accused i.e. Ex.P.2 (Colly.). Similar is also the argument with respect to the weapon i.e.Knife Ex.PW12/1.
70.To substantiate this argument, the Ld.Prosecutor has placed reliance on the Judgment in case titled as Mukesh Kumar & others Vs. State (NCT of Delhi) reported in 51 (1972) 4 SCC 659 regarding Result: Acquitted Page 44 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) proof of case material discovered pursuant to the statement to the police perse inadmissible by virtue of Section 25 of the Evidence Act vis a vis admissibility of such statement qua the recoveries effected U/s 27 of the Indian Evidence Act.
71.After having outlined, with Precision, the importance of the first clue that led to the break through in this case by the police i.e. User of Victim's Sim Card in Mobile Phone instrument belonging to the accused, the Court restresses that all dots would stand connected if the prosecution has proved indeed, that it was the accused who had committed the offences complained of.
72.I am mindful of the fact that another main piece of evidence which is scientifically proven to exist is the factum of blood stains found on the accused's Shirt. In Ex.PW28/A (FSL Opinion), the said Shirt is Ex.P.1a and was found to be having traces of blood. The Pant was given Ex.1b, but no blood could be detected on it. As per the Prosecution, these are the only two clothes that the accused was wearing on his outer body.
73.Likewise, blood was also detected on Ex.2 (Cap), Ex.3 (Earth material), Ex.5 (blood stained earth material), Ex.10 (blood on Result: Acquitted Page 45 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) gauze piece), Ex.11a to Ex.11d (one Sweater, one T.shirt, one dark brown colour Baniyan/Vest and one dirty half pant) which, as per Seizure memo and statement of PW2 U/s 161 Cr.P.C., were the clothes that the victim was wearing of the night of incident. Blood was also detected on one Muffler Ex.11f. It was also detected on Knife that was given Ex.12 by the FSL.
74.Blood could not be detected on Inner Payjami of the deceased i.e.Ex.11E, Ex.4 (earth control), Ex.6 (earthy material), one Slipper of right foot Ex.7, Pair of Slippers Ex.8 and Sandal described as Plastic Chappal Ex.9.
75.To corelate the origin of blood, report of Biology Division of FSL is proved as Ex.PW28/B. This report shows that only Ex.1a, Ex.10, Ex.11a to Ex.11d, Ex.11f and 12 (as above) were found to be of blood group "B". No reaction was observed on Ex.2,3 and 5. No opinion could be given on Ex.4 and Ex.6 as the species of origin disclosed "No Reaction".
76.What is therefore established, on the other count, is that some of the clothes of the Victim had blood group "B" and one of the cloth Result: Acquitted Page 46 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) piece allegedly recovered from the accused i.e.his Shirt Ex.1A was also found to be stained with blood of group "B".
77.The report is silent if the blood was "Human" or not.
78.PW28 Ms.Manisha Upadhyaya admits that she has not provided the Rh factor of the blood found present on the above exhibits. Thus, what is established is that the Shirt allegedly recovered at the instance of the accused was found having blood stains of blood group "B" and that the some of the Victim's belongings were also having blood of group "B".
PW28 Ms.Manisha Upadhyay admits that she has not provided in her report whether the blood found on the Victim's belongings was the blood that was found on the Shirt allegedly recovered at the instance of the accused. Rather, she admits that DNA Finger Printing of the questioned articles was not done and that she had not provided the "Blood Group" of deceased. In the considered view of the Court, it was imperative on the prosecution to have proved that blood found on the Shirt of the accused was "Human Blood" and that the "Blood Group" of the Victim was indeed of "B" Group. Interestingly, the IO had not Result: Acquitted Page 47 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) obtained blood sample from the body of the Victim and it is no body's case that sample blood was drawn from victim's body and seized by the IO.
79.This makes me revert back to the remaining main evidence (the blood group evidence being found insufficient) which is regarding the main lead i.e. recovery of Victim's Mobile Phone Instrument from the accused.
80.Even on this count, mere suspicion only is arising out of the evidence produced on record.
81.To begin with, the IO has not inquired anything about the person namely Satish Kumar, in whose name the Mobile Sim allegedly used by the Victim stood registered vide Ex.PW28/DA. Its perusal shows that it is a Prepaid Sim activated on 26.10.2010 in the name of Subscriber Satish Kumar whose father/spouse name is recorded as "Kumar Ashok, Kumar Ashok". His Permanent address is B520/28, Mahavir Enclave, Delhi01.
82.Nowhere, during investigation or even in the evidence of the IO, has it been clarified that the said Satish Kumar is the son of the Victim herein i.e.Ashok Kumar. The Court cannot raise any Result: Acquitted Page 48 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) presumption to that effect in any Law. There is no proof to the effect that the Victim was using the Sim Card issued in the name of his son Satish Kumar. As the matter of fact, the prosecution does not connect Satish Kumar with the Victim Ashok Kumar. The Victim was 22 years old only and there is no evidence that he was even married.
83.The Court further observes that the complete address of the Victim which is found on the file and also so recorded in the Disclosure Statement Ex.PW12/A is of Q92, Vikash Vihar, Near Manas Kunj Road, Uttam Nagar, Delhi. This address is different than the address of Satish Kumar. Victim's real brother i.e. PW2 has stated in the Court that his brother ate food at his home after which he left with his Battery Rickshaw. He used to return usually around 12 mid night. This implies that the Victim was residing with his brother. The address of the brother/PW2 is the same as recorded as that of the Victim in the Postmortem Report. There are two more brothers of the Victim and PW2/Rakesh Kumar i.e.Sonu and Mohit. PW2 categorically states in the Court that "Ashok used to reside with us". This proves that the address of the Victim was Q92, Vikash Vihar, Near Manas Kunj Road, Uttam Nagar, Delhi and not as provided in Result: Acquitted Page 49 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Ex.PW28/DA.
84.There is extensive crossexamination of PW2/Rakesh Kumar regarding the above Mobile Phone number. PW2 Rakesh Kumar volunteered that he has no knowledge if the Mobile number above was registered in the name of one Satish Kumar adding that the above referred number was used by his brother. At the same time, he admitted that except the knowledge of use of above Mobile number by the deceased Ashok Kumar, he had no documentary proof to that effect. He admits that the Mobile Instrument/Sim was not purchased in his presence.
85.The Court further observes that in his Chief Examination on Oath, PW2/Rakesh Kumar was unable to provide the Mobile Number of his brother, even though in his statement to the police U/s 161 Cr.P.C. Ex.PW2/DA, he had provided Mobile number i.e. 9718899316 to the IO. This witness was not examined by the Prosecution on the aforestated aspect probably because he was not remembering the Mobile phone number aforestated which may imply that he was unable to recall or recollect the Mobile Number when examined in the Court.
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86.It is therefore, difficult to digest that in his crossexamination, he would have been in a position to make the voluntary assertion that the Mobile number used by his brother was as above.
87.The other witness of the prosecution to prove that the deceased was using the same Mobile Number is PW7 Kishan Kumar. In his statement to the police, the said Kishore Kumar who is admitted by Delhi Police official has given the same Cell Phone number which was tried and was "Switched Off" in the morning of 18.10.2014. His statement is Ex. PW7/DA.
88.On the Contrary, in his Court Statement on Oath, he was also unable to recollect Mobile number of the deceased. Further, he was not the person who had tried to call the deceased Ashok Kumar on his Cell Phone as he admits so in his crossexamination.
89.Apart from these two witnesses, there is none that could prove that it was the Victim who was indeed the actual user of the said Mobile Sim Card which was indeed used by him in Mobile Phone Instrument Ex.P.5.
90.The Prosecution could have attempted to put the recovered Mobile Phone Ex.P.5 for being identified by either PW2 Ramesh Kumar or Result: Acquitted Page 51 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) PW7 Kishan Kumar or even both of them. Even the same has not been done meaning thereby that the prosecution neither connects the Victim to be the actual user of Sim Card aforestated or connects the recovered Mobile Phone Instrument to be indeed that of the victim which he had carried with him on the night of 17.10.2014.
91.Thus, the above most important "Chain of Circumstances" is broken besides the missing link in the incriminating substance of presence of blood (Victims?) on accused's Shirt which is collectively exhibited as Ex.P.2.
92.I must also point out here itself that there is also a missing link regarding location details of both the Victim as well as the accused as neither the IO points out to any particular entry in the Mobile phone details of Mobile Phone number 9718899316 sated to be that of the Victim registered in the name of Satish Kumar or of the accused i.e. 9873835427, Ex.PW8/A and Ex.PW8/B respectively. Even the Nodal officer i.e.PW6 Ajit Singh and PW8 Israr Babu have not pointed out to any such entry. What the Court is trying to stress upon in this case is that although the Cell ID/Location Area could have been provided with respect to both the numbers, however, the same Result: Acquitted Page 52 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) was not sought to be used to investigate the Location details of the Victim and the accused on the date, time and place of incident or around the incident.
93.The Court has still analysed the Mobile phone records of both the numbers. What is found is that the last call made from Mobile Number 9718899316 (stated to be that of the Victim) is of 17.10.2014 at 21:28:19 hours for 48 Seconds. There is no incoming/outgoing voice or SMS Call detail record between 10:00 PM/10:30 PM to 12:15 AM on the intervening night between 17/18.10.2014 of this number.
94.Conversely, the Mobile phone of the accused records two peculiar calls at 20:27:27 hours on 17.10.2014 and 00:45:46 hours in the morning of 18.10.2014. The Cell area ID's are also reflected. They have not been compared in evidence with the area details of Cell number said to be of the Victim. The IO ought to have investigated about the Call purportedly made/received from/on Mobile Phone of the accused at 00:45:46 hours on 18.10.2014 as it would have been a call made within 30 minutes of discovery of the Victim's body and thus, bearing close proximity in time.
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95.Further, although it is in the disclosure statement of the accused that he inserted his (accused) Sim Card in the Mobile Phone Instrument of the Victim Ex.P.5 and received several messages, yet these entries are not proved. Careful perusal of the CDRs show GPRS setting and 9 Incoming consecutive SMS is in the morning of 18.10.2014 between 06:58:46 hours and 07:01:01 hours. Even these entries have not been proved by the Prosecution.
96.Even if it was done, the prosecution was required firstly to prove that the Mobile hand set recovered from the accused was actually the handset that was used by the Victim. No such proof has come in evidence.
97.Thus, this crucial aspect of this case has gone to the benefit of the accused only as not proving of the above is again a crucial missing link affecting the case of the prosecution.
98.I shall now come up to the next incriminating aspect of this case which pertains to the Prosecution's version to the effect that soon after the incident, the accused was found negotiating for sale of the Battery Rickshaw belonging to the Victim. I shall also comment on the aspect of its recovery, besides recovery of other articles a little Result: Acquitted Page 54 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) later in this Judgment.
99.PW1 Mohd.Salim is the Cook at Mahboob Dhaba who, as per his initial statement to the police, facilitated the sale of the Battery Rickshaw. His Chief Examination shows that he affirms to know accused Manoj Kumar, who was present in the court on 15.09.2015. He was the person who used to take Meals from his "Dhaba". He states that probably on 19.10.2014, accused Manoj had conveyed to him to be having a "Battery Rickshaw" which he wanted to sell. On the same evening, one person whose name was not stated by PW1, had come to the "Dhaba" and he was told about the proposal. Accused had also come to his "Dhaba" where both of them had talks and left.
100.In the Crossexamination, this witness categorically stated that the accused never informed him whether the said "Rickshaw" was a "Cycle Rickshaw" or "Battery Rickshaw" or "Auto Rickshaw".
101.The above element is to be viewed as creating a doubt in his testimony as the witness, when asked, was unable to describe as to whether he was told by the accused to make attempts to facilitate sale Result: Acquitted Page 55 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) of the "Battery Rickshaw". Further, as per own testimony, PW1 had never seen the said "Rickshaw". His statement U/s 161 Cr.P.C., is before the Court. According to the same, on 19.10.2014, the accused had told him to be in possession of "Battery Rickshaw"
which he wanted to sell. Further, on the same day, Taufiq (PW9) came to his "Dhaba" and was told about the proposal. His said statement shows that Manoj had already left and Taufiq was asked to come on the next day. Taufiq did come in the evening of the next day (which would be 20.10.2014), when accused Manoj was present. Taufiq was sent with Manoj so that the Battery Rickshaw could be shown to him.
102.This variation in statements of Mohd.Salim/PW1 should have been clarified during his Chief Examination itself by the prosecution which is not done. A doubt therefore, arises regarding the make of the Rickshaw. Since PW1/Mohd.Salim was not crossexamined by the prosecution U/s 154 Cr.P.C. regarding the make of the Rickshaw, corroboration to his statement is required from testimony of Taufiq who is PW9.
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103.It is further owing to the fact that the witness had admitted that PS Uttam Nagar is in front of his "Dhaba" where police officials used to come and they had "ददआ सलरम" with them. Of Course, he was suggested to be deposing false facts under tutoring of police officials and it is also an argument of the defence that the accused is falsely implicated at the instance of Victim's Maternal Uncle/PW7, who is admittedly employed in Delhi Police.
104.Thus, Taufiq's testimony as PW9 assumes importance.
105.He (PW9) is hostile to the Prosecution and claims to be not even knowing the name of the person who told him about the sale of "Rickshaw". Moreover, he further states in his crossexamination by the accused that the person informing him about the sale had only named "Rickshaw" and not "Battery Rickshaw".
106.He has clarified, in terms of his statement to the police, that he used to ply Battery Rickshaw owned by Ramesh/PW3 and the Dhaba wala at Uttam Nagar was well conversant with him. He was still unable to give the name of the said Dhabawala though in his crossexamination by the Ld.Chief PP, he has stated that may be the name of Dhabawala was "Salim". The witness is resilient to the Result: Acquitted Page 57 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) prosecution and has denied the Prosecution's version that Salim had informed him that person namely Manoj (accused) was willing to sell the Battery Rickshaw.
107.He only affirms a single fact that proposal for sale of one Rickshaw was made to him by a Dhabawala, who he doubtfully projects Salim and since he had no sufficient money, he (Salim) informed this fact to his employer Ramesh/PW3 and he alongwith said Ramesh had gone to see the Rickshaw at Uttam Nagar where it was not found. Further, nobody else had accompanied him and PW3 to that place.
108.He has denied in his crossexamination by the State that accused Manoj had taken them to a street behind Shani Bazaar School on the 'following day' to show them the Battery Rickshaw. He denied it to be of red colour; its Key being provided to him by Manoj or even taking trial run of the Battery Rickshaw. He further denies to have gone the next day at 10 AM with PW3 to purchase the rickshaw or that Manoj met them in Shani Bazar at all.
109.His statement Ex.PW9/A recorded by the police comprises of full details regarding the entire incident. The same is Mark PW9/A. Result: Acquitted Page 58 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) He was confronted with only one fact therein which is to the effect that the Rickshaw was not found in Shani Bazar when he with PW3 had gone to purchase it. Rest of his statements contrary to his Court deposition were never confronted with by the Prosecution.
110.Thus, even his testimony is not in support of the prosecution and is otherwise not substantially similar to that of PW1.
111.Thus, the testimony of PW3/Ramesh now assumes importance.
112.Even Ramesh (PW3) was crossexamined by the Ld.Prosecutor being hostile.
113.He does state that a person namely Khan (later affirmed as having full name Taufiq Khan in cross by the State) had informed him about the proposal of sale of Battery Rickshaw. He creates confusion in the Prosecution's case when he states to have not gone to Uttam Nagar alongwith the said Taufiq Khan for negotiating price of the said Rickshaw. It is so as according to Taufiq Khan, he was employed under PW3/Ramesh as ERickshaw driver.
114.As per PW3, he was even unable to recollect the correct name of said Taufiq Khan. Further, this witness does not identify the accused Result: Acquitted Page 59 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) as the person who had come to Uttam Nagar with the Chain & lock in his hand and with whom, he had negotiated the Sale.
115.He demolishes the Prosecution's case regarding the above when he states in crossexamination that he saw Manoj for the first time when he was sitting in the Police Jeep and he was told by the police officials that the person in the Jeep is named as accused Manoj. He claims to have never spoken to Manoj.
116.What therefore implies is that the testimonies of PW2 Rakesh Kumar, PW3 Ramesh and PW9 Taufiq are not corroborating each other on material aspects and therefore, here also, the "Chain of Events" is broken. There is no clear evidence on record that accused Manoj had, after committing the robbery of Mobile Phone and Battery Rickshaw of the Victim, parked vehicle i.e.Battery Rickshaw at a particular place and that he w.e.f. 18.10.2014, was trying to negotiate its sale.
117.It further implies that the "Chain of Events" that would prove that it was accused who had parked the vehicle i.e.Battery rickshaw at particular place is broken.
118.The next aspect which is to be considered by this Court is Result: Acquitted Page 60 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) whether the Court can still proceed and rely on the aspect of recovery of the aforestated Battery Rickshaw at the instance of the accused?
119.I have to state that the prospective purchaser of the Battery Rickshaw i.e.Ramesh/PW3 and Taufiq Khan/PW9 have not stated that they had seen the said Battery Rickshaw or if at all the Rickshaw projected by the prosecution was indeed a Battery Rickshaw or not. I have already observed that PW9/Taufiq Khan had never seen the said Battery Rickshaw and in his crossexamination, he claims that he was informed only of about the sale of "Rickshaw" and not the "Battery Rickshaw".
120.The main witness of the prosecution regarding recovery of the Battery Rickshaw is PW4/Vinod i.e. the Parking Attendant at the Janak Puri West Metro Station, Delhi. He had been unable to identify the person who had parked the said Battery Rickshaw in the parking. Moreover, he signed on the Seizure Memo Ex.PW4/A vide which the Battery Rickshaw was seized and claims that Register Ex.PW4/P.1 was not given by him to the police as it was taken by the police from his employer. He was only sure about his handwriting in the Register Result: Acquitted Page 61 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) qua entries dated 18.10.2014. It is not the Prosecution's case that the Battery Rickshaw was parked in the parking on 18.10.2014 as, if the Supplementary Disclosure Statement of the accused recorded on 22.10.2014 is correct, he had parked the same in the parking on 19.10.2014 itself.
121.The witness could not say with confirmation whether the entry dated 19.10.2014 is in his handwriting. He even could not say as to who else had made the entry in register. He even denies that the Battery Rickshaw was taken into possession by the police from the parking in his presence and that too, at the instance of the accused Manoj, who was present with the police. As a matter of fact, he stated to be not remembering if the police had come to the Parking lot on 24.10.2014 alongwith the person who used to park the said Battery Rickshaw in the parking. In his crossexamination by the accused, he disclosed to be not knowing the contents of Ex.PW4/A. He categorically admitted that there are cuttings on each page of the Register Ex.PW4/P.1 on all pages after 21.10.2014. Accordingly, the prosecution has not been able to prove the contents of the Register Ex.PW4/P.1 and testimony of PW4 is also damaging to Result: Acquitted Page 62 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) the prosecution's case.
122.Further, the Seizure of Battery Rickshaw as per the Seizure Memo Ex.PW4/A was also witnessed by SI Brahm Prakash/PW15 and HC Mahavir/PW26. These witnesses have supported the Prosecution's case. At the same time, it would be interesting to know the previous history and the manner in which the police claims to have got knowledge of the exact location of the Battery Rickshaw.
123.The Police officials namely SI Brahm Prakash/PW15 and HC Ram Pratap/PW13 had gone to the house of the accused and apprehended him and had also recorded his first disclosure statement. Based on the said disclosure statement, they allegedly got recovered the weapon of offence i.e. Mobile Phone of himself as well as that of deceased and the clothes of the accused besides the Chain, Lock and Key of the Battery Rickshaw from the residence of the accused. According to their testimony, the accused led them to the place of incident and also led them to the place where he had parked and locked the Battery Rickshaw with the help of recovered Chain with the Electricity Pole situated nearby to his residence soon after the incident. The Pointing Out Memo is Ex.PW13/G wherein, it is Result: Acquitted Page 63 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) recorded that accused kept the Battery Rickshaw at the same place for 2 to 3 days. It is surprising to note that as per the disclosure statement Ex.PW13/C, the accused stated that he can get the Rickshaw recovered. However, the Rickshaw was not recovered on the same day from the said place i.e. the Electricity Pole, near to his house. In the same disclosure statement, the accused claimed to have removed the Rickshaw to another place in B Block, J J Colony, Hastsal Road, Uttam Nagar, Delhi behind Vijay Public School on 21.10.2014. The Pointing Out Memo dated 22.10.2014 in this regard is Ex.PW13/H.
124.Despite the fact that Rickshaw was not recovered from both the above places, there is no explanation from these witnesses as to what investigation they did or inquiries they made on the same day from the accused regarding whereabouts of the ERickshaw.
125.As if to suit their convenience, they claim to have recorded a subsequent disclosure statement Ex.PW13/F on 24.10.2014 (after seeking PC Remand) wherein the accused disclosed that he had lied to them in order to mislead them about the fact that he had parked the Battery Rickshaw behind Vijay Public School on 21.10.2014. It is Result: Acquitted Page 64 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) claimed that he voluntarily made this disclosure statement stating that he parked the Battery Rickshaw in the parking of Janak Puri West Metro Station on 19.10.2014 itself.
126.The said disclosure led to the recovery of the Battery Rickshaw. What assumes importance here are the statements of PW3 Ramesh and PW9 Taufiq Khan recorded by the police U/s 161 Cr.P.C. on 24.10.2014 itself. As per statement of Ramesh/PW3, he had gone to Shani Bazar in Uttam Nagar on 21.10.2014 where he met the accused Manoj. In this statement, he is silent as to whether he was also shown the Battery Rickshaw or not. Needless to say, he has not supported the prosecution in his court testimony as observed earlier.
127.Taufiq Khan, in his statement on 24.10.2014 by the police stated to have received information regarding sale of Battery Rickshaw on 19.10.2014 and on the next day, he met the accused at the Mehboob Dhaba. He stated that on that day i.e. 20.10.2014, he had gone with accused to Shani Bazar behind the School in a gali where he had seen a red colour Battery Rickshaw which he had also inspected and driven. He has also not supported the prosecution in his court testimony. What is projected is that Ramesh had gone to Shani Bazar Result: Acquitted Page 65 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) on 21.10.2014 and Taufiq had gone at the same place on 19.10.2014 which cannot be factually correct. Assuming that they had gone to Shani Bazar on 21.10.2014, none of them could have seen the Battery Rickshaw in the street behind the public school in Shani Bazar, Uttam Nagar on 21.10.2014 as, in terms of the Supplementary disclosure statement of accused Ex.PW13/F, he had never parked the Battery Rickshaw at the said spot and had shifted it directly from the place of its parking i.e. Vijay Public School, near his house on 19.10.2014 to the Metro Parking of Janak Puri West Metro Station.
128.It being so, the statements of Ramesh and Taufiq Khan recorded by the police U/s 161 Cr.P.C. on 22.10.2014 qua the fact of their visit to Shani Bazar to see the Battery Rickshaw are incorrect. It seems that such statements were never made. If the police was able to record the supplementary disclosure statement regarding whereabouts of Battery Rickshaw on 24.10.2014, then it was expected of Ramesh and Taufiq to have stated that the Battery Rickshaw was seen by them at the Metro Parking.
129.If the Prosecution proposed to prove that the accused had brought the Battery Rickshaw from Metro Parking to Shani Bazar, Uttam Result: Acquitted Page 66 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Nagar on 21.10.2014 to show it to these witnesses, then this fact is conspicuously absent on record. It is unproved.
130.For the aforestated reason, the aspect of recovery of the Battery Rickshaw sought to be proved through SI Brahm Prakash and HC Ram Pratap has to be closely scrutinized.
131.The defence has vehemently argued absence of public witnesses. This fact is evident from the testimonies of the relevant witnesses. It is despite the fact that the prosecution was required to prove the fact that all recoveries effected at the instance of the accused are proven to have been so effected beyond any iota of doubt. Considering the overwhelming number of Probabilities, Inconsistencies and Discrepancies as described above, it is expected of the Court to ensure as to whether the testimonies of the witnesses of recovery are inspiring confidence.
132.It is in the crossexamination of even the IO that accused was arrested from the house situated in a densely populated area. It is also in his testimony that the family members of the accused were available but even they were not joined in the investigation. Although the IO submits to have made attempts to join local residents in the Result: Acquitted Page 67 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) vicinity of the residence of the accused but the reasons given by him for their refusal are not inspiring. It is surprising to note that the IO did not consider expedient to join any resident members of accused's family to the event of recovery of the incriminating material from his own house despite the fact that the accused, as per him, had already made a disclosure statement to the effect that he can get incriminating articles recovered. Needless to say, the statement of DW1 i.e.wife of the accused creates a doubt in the version of prosecution when she supports the defence of the accused to the effect that the police had taken away her husband from his house on 18.10.2014 itself at about 05:00 AM or 06:00 AM. This, coupled with the fact that the IO was also grilled his crossexamination regarding other angles qua motive for the commission of the crime, prompts this Court to make an opinion that the recovery of the incriminating material from house of the accused or the recovery of ERickshaw from Metro Parking does not inspire confidence. It is own case of the IO as per his statement that he had investigated the FIR from all angles including Love angle and had ruled out the possibility of any other angle except Robbery. He claims to have also ruled out the possibility of previous enmity of Result: Acquitted Page 68 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) the deceased with any of his friends.
133.The above discussion therefore not only creates Question Mark on the recovery of Battery Rickshaw but also the recovery of other incriminating material.
134.For instance, the IO did not show in the sketch of recovered Knife the blood stains although he mentions so in its Seizure Memo. Further, the IO had seized several Slippers in the Vicinity of Crime Scene, however, none of these Slippers have been corelated with the deceased (except the right foot Slipper found near his feet) and the other recovered Slippers. Further more, the Crime Team was unable to lift any Chance Prints from the spot. Even further, the place of incident is a public place and to add, the perusal of the Scaled Site Plan establishes the fact that the Victim had run after the assault from Point A to Point B which is through the Landfill Park and that the two places are separated by a substantial distance between them. It is highly unlikely that Victim would not be shouting for help and that none heard the same. The body was discovered at 12:15 AM and the time of attack was between 10/10.30 PM to 12:15 AM, which cannot be said to be such a time of night that none would have heard the Result: Acquitted Page 69 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) cries of the Victim, if not seen the actual occurrence. Here also, there is no sufficient explanation given by the IO and the other officials regarding their efforts to trace such a person from the nearby residential area.
135.The accused claims innocence and it is a fact which is also admitted on record that PW7 Kishan Kumar, Maternal Uncle of the deceased is an ASI in Delhi Police. The plea that PW1/Mohd.Salim could be a planted witness in view of his admission that he had "दआ द सललम" with police officials keeping in mind the cumulative effect of the entire evidence cannot be obviated.
136.I had pointed out that the prosecution was duty bound to prove that the accused had committed offence punishable U/s 302 IPC after committing culpable homicide amounting to Murder.
137. Before proceeding further, it is necessary to mention here the relevant Sections in this regard. Culpable homicide is defined under Section 299 IPC which reads as under:
299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is Result: Acquitted Page 70 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) Always sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or with the knowing it to be likely to cause Z's death, includes B to fire at the bush. B fires and kills Z. here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Result: Acquitted Page 71 of 83State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Explanation 1. - A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2. - Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.
Explanation 3 - The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
138.Culpable homicide is first kind of unlawful homicide. It is causing of death by doing (i) an act with the intention of causing death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; (iii) an act with the knowledge that it was likely to cause death. Proceeding further, Section 300 IPC is a species of Result: Acquitted Page 72 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Section 299 and it defines murder. It is important to mention here that the charge so framed against the accused persons is a charge for murder which has been defined under Section 300 IPC which reads as under:
300. Murder - Except the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is cause, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Result: Acquitted Page 73 of 83State Vs. Manoj Kumar FIR 1227/14 (57325/2016) Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to caused his death, strikes him with the intention of causing bodily injury; Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, give him such a blow as would not in the ordinary course of nature kill a person in a sound stated of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a swordcut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
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(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
139.Each of the four clauses as mentioned above, requires that the act which causes death should be done intentionally, or with the knowledge or means of knowledge that death is a natural consequence of the act. An intention to kill is not always necessary to make out a case of murder. A knowledge that the natural and probable consequence of an act would be death will suffice for a conviction under Section 302 IPC. It has been held in "Santosh, 1975 CrLJ. 602 (SC).
140.The mental element in culpable homicide i.e the mental attitude of the agent towards consequences of his conduct, is one of the intention or knowledge. Motive is immaterial so far as offence is concerned, and need not be established. There are three species of mens rea in culpable homicide:
1. an intention to cause death;
2. an intention to cause a dangerous injury;Result: Acquitted Page 75 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
3. knowledge that death is likely to happen
141.The intention or knowledge necessary in order to render killing culpable homicide must be clearly prove by the prosecution which can usually be done by proof of the circumstances which prove the act of omission in question for the presumption is that a man knows the probable result of his conduct.
142.Before proceeding further, it is submitted in brief that there is a difference between culpable homicide and murder. All murders are culpable homicide, however, all culpable homicide may not be murder as defined under Section 300 IPC and punishable under Section 302 IPC. The distinction between these two offences is very ably set forth by Melveill, J. in Govinda's case [(1876) 1 Bombay 342] and Sarkariya J in Punnayya's case [State of AP Vs. R. Punnayya AIR 1977 SC 45].
The facts which reduce murder to culpable homicide are:
(a) It should have been committed without pre meditation;
(b) It should have been committed upon a sudden Result: Acquitted Page 76 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) quarrel;
(c) It should have been commission in the heat of passion;
(d) It should have been committed without the offenders having taken undue advantage or acted in a cruel or unusual manner;
143.All these factors are unproved in this case as they have not been related to have been committed by the accused himself. The Chain of Circumstantial evidence is so broken that the court has to rule that the first incriminating circumstance i.e. the presence of the accused on the spot of occurrence itself has not been proved by unimpeachable evidence. Therefore, the mensRea cannot be attributed to the accused regarding culpable homicide either not amounting to murder or amounting to murder.
144. In case titled as Kateshwar @ Sanjay Bhagwan Hedau Vs. State of Maharashtra (2017) , it has been held that:
"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.Result: Acquitted Page 77 of 83
State Vs. Manoj Kumar FIR 1227/14 (57325/2016) 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 far 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."
145.Since the Court has given numerous instances of incomplete "Chain of Evidence", it cannot be said with all human probabilities that the Act complained of must have been done by the accused.
146. There is another glaring improbability that cannot be ignored in this case which also dents the Prosecution's case which is to the effect that the accused was keeping the incriminating material i.e. his own blood stained clothes, weapon of offence, the Key of the Battery Rickshaw and Mobile Phone of the Victim with himself till 22.10.2014. He had ample time to get rid of the same. This conduct of the accused of having kept the incriminating material in his possession is therefore, bound to be not in the ordinary course of human conduct.
Result: Acquitted Page 78 of 83State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
147. In case titled as "Naveen Chauhan @ Chussi; Ram Nandan Vs. State" (2010) Law Suit (Del) 1577, it has been held that:
"The case of the prosecution is that the weapon of offence and clothes of the appellant Naveen Chauhan @ Chussi which were stained with the blood of the deceased were found concealed by him in a box of garbage. If the appellant Naveen Chauhan @ Chussi had gone to his house for the purpose of changing his clothes, he would have washed or destroyed those clothes instead of preserving them and that too in his own house. It is difficult for us to accept that an accused who had adequate opportunity to change the clothes worn by him at the time of commission of the murder and also had opportunity to wash or destroy them would prefer the course of preserving the evidence against him and that too in his own house from where it could easily be recovered by the police. It is difficult to believe that he would not have washed or destroyed / discarded the bloodstained weapon and clothes either on 30th April, before returning to the party of PW13 or after he was interrogated by the police in the evening of that day. He had the Result: Acquitted Page 79 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) whole night of 30th April as well as a lot of time available to him on 1st May, if he wanted to remove the evidence alleged to have been kept by him in his house."
It has been further held that:
"It is a settled proposition of law that in a case based purely on circumstantial evidence the prosecution needs to establish all the circumstances cogently and firmly to the full satisfaction of the court, before they can be acted upon. The circumstances proved by the prosecution ought to be wholly incompatible with the innocence of the accused and must necessarily and unerringly point towards him as perpetrator of the crime. The courts need to be satisfied that in all probability it was the accused and no one else who had committed the crime for which he was charged."
It has been further held that:
"In the present case, the prosecution has failed to establish the disclosure statement alleged to have been made by the appellant and the alleged recovery of weapon of offence and bloodstained clothes from them. Thus, the main circumstances, relied upon by the prosecution against the appellants do not stand Result: Acquitted Page 80 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) established beyond reasonable doubt. The circumstances which the prosecution has been able to prove, viz. Quarrel between the appellant Ram Nandan and his wife on account of the wife suspecting an illicit relations between her husband with another woman, and the appellants having intermittently left the venue of the party alleged to have been organized by PW13 on 30th April, 2006, are not sufficient to prove the guilt attributed to the appellants. Both of them, therefore, are liable to be acquitted."
148. In case titled as "State (Govt. of NCT of Delhi) Vs. Ajay & Anr." 2016 [2] JCC 1371, it has been held that:
"Circumstantial evidence in a case must be firmly established. Chain of circumstances must be complete from the facts. The last seen theory comes in to play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased was found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible."
149. In view of the above appreciation of evidence, it is to be submitted that the Prosecution has not proved the second point for Result: Acquitted Page 81 of 83 State Vs. Manoj Kumar FIR 1227/14 (57325/2016) determination and thus, it cannot be said that it was the accused who committed robbery and inflicted such injuries on the Victim which tantamount to culpable homicide amounting to murder.
150. (3) Alternatively, whether the accused is guilty of retaining stolen property i.e. Battery Rickshaw Ex.P.1, its Keys Ex.P.3 (Colly.), his Mobile Phone with Sim Card No. 9718899316 belonging to the Victim knowing or having reasons to believe the same to be stolen property or not?
151. In this context, the Court has already recorded its findings on the aspect of doubtful recovery of the Battery Rickshaw and Mobile Phones. Since the Court has held that the recovery of these articles is doubtful, the question that the accused retained these articles knowing or having reasons to believe the same to be stolen property does not arise.
152. Needless to say, the Prosecution has not proved that the Mobile Phone Ex.P.5, Battery Rickshaw Ex.P.1 and the Sim Card (Recovery of which is never shown) were the properties of the Victim. Thus, the Alternative Charge U/s 411 IPC is not proved.
Result: Acquitted Page 82 of 83State Vs. Manoj Kumar FIR 1227/14 (57325/2016)
153. Having regard to the findings of the Points for Determination, the accused Manoj Kumar is entitled for benefit of doubt and according the same to him, he is acquitted of the Charges Punishable U/s 302/392/411 IPC.
He is further directed to furnish PB/SB for a sum of Rs.50,000/(Rupees fifty thousand only) with one surety in the like amount in view of Section 437A Cr.P.C.
Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi)
on 04.09.2017 ASJ05(W)/THC
Delhi/04.09.2017(P)
Result: Acquitted Page 83 of 83