Delhi District Court
State vs . 1. Puran Singh S/O Chhatar Pal, R/O ... on 22 January, 2010
1
IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGEVII/NECUM
ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI :
S.C. No. 04/09
State Vs. 1. Puran Singh S/o Chhatar Pal, R/o H.No. 102, Gali
No.4, Sadatpur Extn., Delhi.
2. Anand Pal S/o Chhatar Pal, R/o H.No. 101, Gali
No.4, Sadatpur Extn., Delhi.
3. Hari Sinigh S/o Bhagwan Singh, R/o H.No. 121, Gali
No.4, Sadatpur Extn., Delhi.
FIR No. 233/08
PS Khajuri Khas
U/s 302/34 IPC.
J U D G E M E N T : Prosecution's case emanates from the fact that on 17.08.08 at about 4.45pm, DD No. 21A was recorded at PS Khajuri Khas, regarding murder at H.No. A91, Gali No.4, Sadatpur Extn., Delhi. On receipt of said DD entry, ASI Tilomani Bhatt along with Sukram Constable reached the spot. Inspector Netra Pal and SHO Ram Chander Ranga, PS Khajuri Khas, also reached at the spot. A pool of blood was found there. On inquiry, it came to notice that Injured Dipender Kumar @ Bittoo has already been removed to GTB Hospital by PCR van officials. No eyewitness was found at the spot, who might have witnessed the incident. Inspector Netrapal directed Tilomani Bhatt ASI and Sukram Constable to preserve the spot and left for GTB Hospital. In the hospital, doctor had declared Dipender as brought dead. No eyewitness was found in the hospital too. Deceased Dipender was wearing a black colour pant and a shirt. There were two or three injury marks on the right side of chest of deceased, besides a bluish cut mark on the neck. Deceased was smeared in blood and 2 was having broken mandible. Case for an offence punishable under section 302 IPC was registered. Crime team was called at the spot. Spot was got photographed. Exhibits, like blood sample, one mobile phone make Nokia 6030 black Colour, bricks smeared with blood and earth control were seized from the spot and sealed with seal of NPS. During the course of investigation, statements of Deepak Kumar, Akhilesh and Smt. Ambika were recorded u/s 161 Cr.P.C. On the basis of their statements, accused persons, namely, Puran Singh, Anand Pal and Hari Singh were arrested in the case. They made disclosure statement and got the weapon of offence recovered. Postmortem on the dead body of Dipender was also got conducted. On transfer of Inspector Netra Pal Singh, Rakesh Ahuja, Inspector took up the investigation. Exhibits of the case were sent to FSL Rohini. Investigation culminated into a chargesheet against the accused persons.
2. Charge for offence punishable under section 302 read with section 34 IPC was framed against the accused persons, to which charge they pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Dr. Manisha Pradhan (PW1), Mahesh Kumar, Head Constable (PW2), Tilomani Bhatt ASI (PW3), Itender Swaroop Yadav SI (PW4), Shyam Lal, Constable (PW5), Deepak Kumar (PW6), Akhilesh Kumar Rai (PW7), Gajender Singh, Constable (PW8), Ajmer Singh SI (PW9), Rakesh Ahuja, Inspector (PW10), Ambalika (PW11), Veer Pal Singh, Head Constable (PW12), Sukram Pal, 3 Constable (PW13), Kuldeep, Constable (PW14), Netra Pal Singh, Inspector (PW15) and V. Shankarnarayanan, Sr. Scientific Assistant (Biology) (PW16) in the case.
4. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all the allegations levelled against them. Their case has been denial simplicitor. Accused Puran Singh and Anand Pal projected that they were on duties at the time of incident, whereas accused Hari Singh projected that he was lifted from his house, in presence of his wife and friend Rakesh and falsely implicated in the instant case. Accused Hari Singh also projected that at the time of incident, he had gone to his village to see his ailing father, who had suffered paralytic attack. All the three accused persons claimed themselves to be innocent and falsely implicated in the case. Accused Anand Pal and Hari Singh took a further plea that all the witnesses are interested witnesses. Dipender @ Bittoo used to extort money from shopkeepers. Shopkeepers and persons of locality prepared an application, which was signed by all including them. On coming to know about this fact, Deepak, brother of deceased, threatened them to see. Because of this reason, they have have been falsely implicated in this case. In order to defend themselves, they have examined Surender Pal (DW1), Raj Bahadur (DW2) and Mahender Singh (DW3) in support of their support.
5. Dr. Manisha Pradhan (PW1) conducted postmortem on the dead 4 body of Dipender Kumar. She proved autopsy report of deceased as Ex.PW1/A. Mahesh Kumar, Head Constable (PW2) received four parcels and five parcels on 17.08.08, 18.08.08 respectively in Malkhana. He recorded entry at Sr. No. 1705 and 1707 respectively in register No.19 and proved the same as Ex.PW2/A and Ex.PW2/B respectively. Thereafter, he sent aforesaid nine parcels to FSL Rohini, through Kuldeep, Constable, vide R.C. No. 89/21. Tilomani Bhatt ASI (PW3) and Sukram Pal, Constable (PW13) detailed those very investigative steps, which took place in their presence. Itender Swaroop Yadav SI (PW4) received a message from police control room, on 17.08.08, instructing him to reach street No.4, Shadatpur Extn., Khajuri Khas, Delhi. He along with his team reached the spot and found blood lying in the street. Blood was splashed on wall of house No.91, Shadatpur Extn., Delhi, broken pieces of wooden stick were also lying there at the spot. Shyam Lal, Constable (PW5) took 11 photographs of the spot and proved the same as Ex.PW5/A1 to Ex.PW5/A11, besides negatives thereof as Ex.PW5/B1 to Ex.PW5/B11. Deepak Kumar (PW6), Akhliesh Kumar Rai (PW7) and Ambalika (PW11)are witnesses of the fact, as such they have narrated facts of the case.
6. Gajender Singh, Constable (PW8) transmitted special reports to Sh. A.S. Aggarwal, ld. Magistrate and Sr. police officers, including DCP as well as Joint C.P. Ajmer Singh SI (PW9) unfolded formal facts in the case. Rakesh Ahuja, Inspector (PW10) took investigation of the case on 01.10.08. He 5 obtained judicial custody of accused persons, concluded investigation and got the accused persons challaned. Veer Pal Singh, Head Constable (PW12) was working as duty officer on 17.08.08 at PS Khajuri Khas. He recorded formal FIR and proved copy of it as Ex.PW12/A. Kuldeep, Constable (PW14) detailed facts pertaining to recovery of weapons of offence from accused persons. Netra Pal Singh, Inspector (PW15) conducted investigation of the case. He detailed those very investigative steps, which were taken by him during the course of investigation. Sh. V. Shankarnarayanan, Sr. Scientific Assistant (Biology) examined exhibits of the case and proved his detailed report as Ex.PW16/A. He also proved his serological report in this regard as Ex.PW16/B.
7. Arguments were heard at great length at the bar. Sh. Subhash Chauhan, ld. Prosecutor, presented facts on behalf of the State. Sh. Dharmender Kumar, Advocate, had advanced arguments on behalf of the defence. At the very outset, ld. Counsel for the accused referred to Character of the deceased for submitting that he was involved in many cases and as per testimony of prosecution witnesses, during the period 200208, he remained in jail except for a period of eight or nine months. Under these circumstances, he was having many enemies. Complaints were made by the accused persons against the behaviour of the deceased and this is the reason for their false implication in this case. Attacking the testimony of Deepak Kumar, brother of deceased, it was submitted that although he 6 claims himself to be an eyewitness of the incident, however he has not given the details of the manner in which accused assaulted the deceased. Further more, on material aspects, testimony of Deepak Kumar was confronted with his statement made before the police. Further more, although as per his testimony, he had informed his brotherinlaw Akhilesh Kumar Rai about the accused persons, assaulting Dipender. However, when Akhilesh Kumar appeared in the witness box, he did not support him in this regard and denied that Deepak had disclosed names of the accused persons, being assailants of the crime. Further more, according to Deepak when he raised alarm, accused persons ran away from the spot. However, Akhilesh Kumar tried to become eyewitness by stating that when he reached the spot, he saw three or four persons running away from there. Even then, he could not identify any of the accused persons. As regards the motive to commit crime is concerned, it was submitted that prosecution has failed to prove the same, inasmuch as, different versions are coming in this regard. As regards the arrest of accused persons is concerned, it was submitted that as per prosecution case, Dharamwati, wife of Anand Pal had led the police party to the house of one Vasudev from where accused persons were arrested. However, neither Dharamwati nor the wife of Vasudev, who were alleged to be present in the house were made witnesses to the arrest of the accused persons. Further more, as regards recovery at the instance of accused persons is concerned, it was submitted that different versions are coming as to from which accused 7 which weapon was recovered. As such, recovery of weapon of offences at the instance of accused persons is not proved. It was further submitted that place of incident is not established, inasmuch as, as per DD No. 21A the incident had taken place in front of house No. A91, Shahdatpur Extn. However all the police officials, except the investigating officer, had reached in front of H.No. N91, Shahdatpur Extn. No explanation is forthcoming as to why they had gone to N91 instead of A91, in respect of which DD was received. Referring to the postmortem report, it was submitted that manner of death was not mention in the report. Further more, as per the report time since death was about 24 hours. However, as per prosecution' s case, occurrence had taken place at about 4.30pm. On 17.08.08, examination of the dead body was conducted by the doctor at about 11.10am. That being so, how can it be said that time since death was 24 hours. He further tried to demonstrate from clothes of the deceased that cut marks on the clothes of deceased do not correspond with injuries as mentioned in the postmortem report. Further more, although prosecution witnesses have deposed that there was a head injury on the person of deceased, but this fact does not find corroboration from postmortem report. Further more, although as per testimony of MHC(M), nine parcels were deposited with him and same were sent to FSL. However, as per FSL report only seven parcels were received. Where the remaining two parcels have gone was the question raised by him. Further more, the Constable, who took samples to FSL, has not testified in 8 this regard. Under these circumstances, tampering with case property cannot be ruled out. Further more, according to SI Itender Swaroop Yadav, broken pieces of wooden stick were lying at the spot and same were also shown in the photographs, however same were not taken into possession, and the danda which was produced before the Court was not broken piece of wooden stick. When case property was produced in the Court, some pieces of bangles were also lying in one box. However, same were not seized by the investigating officer of the case. No explanation is forthcoming in this regard. The concerned doctor, who declared the injured to be dead, has not been examined by the prosecution. Under these circumstances, it was submitted that prosecution has miserably failed to establish its case and accused persons are entitled to be acquitted of the charges levelled against them.
8. Rebutting the contentions of the ld. Counsel for the accused, it was submitted by ld. Prosecutor that even if deceased was badcharacter of the area that does not give licence to anybody to kill him. In the instant case, motive to kill is clear from statement of PW Ambalika and PW Akhilesh Kumar. Further more, Deepak, brother of deceased, had clearly identified all the accused persons to be assailants of the crime. As regard recovery of weapon of offence is concerned, it was submitted that although certain discrepancy has appeared, but the same is very minor and has occurred due to lapse of time. However, the same is not fatal. As regard the postmortem report, it was submitted that arguments addressed during the course of 9 arguments do not find support from crossexamination and any argument beyond pleadings cannot be considered. As such, it was submitted that prosecution has been able to prove its case beyond reasonable doubt and accused persons are liable to be convicted of the offence alleged against them.
9. I have given my considerable thoughts to respective contentions of the parties and have perused the record.
10. It is the case of accused that deceased Dipender was a bad character. He used to extort money from shopkeepers and persons of the locality prepared an application, which was signed by all, including accused Anand Pal and Hari Singh. On coming to know about this fact, Deepak, brother of deceased, threatened them to see. Because of this reason, they have been falsely implicated in this case. Dipender was bad character of the area and other police station. In order to take revenge, they were implicated by brother and relatives of the deceased. This plea of the accused that deceased was bad character of the area, finds support from testimony of close relatives of the deceased, inasmuch as, Deepak Kumar admitted in his crossexamination that six criminal cases were pending against Dipender, which were registered at PS Timarpur and PS Khajuri Khas. However, he went on stating that in three or four cases, he was acquitted. He tried to plead ignorance, whether the name of his brother was entered in the register meant for BC, maintained at police station. However, he admitted that cases under 10 section 307/34, 323/384/34 IPC, 341/323/324/427/506/34 IPC were registered against Dipender and he remained in jail from 2000 till 2008. During this period, he was almost confined in jail except for nine or ten months. Akhilesh Kumar and Ambalika tried to avoid questions regarding involvement of Dipender in various cases by merely deposing that they are not aware of the registration or pendency of the cases. However, it was admitted that Dipender was registered as a bad character of police station. They have also pleaded their ignorance, if residents of locality made any complaint to the President, Sudhar Samiti, Shahdatpur Extension, Delhi, regarding harassment caused to them by Dipender. Under these circumstances, it stand proved that deceased Dipender @ Bittoo was a bad character of the area, but it is equally true that this does not give licence to any person to commit murder.
11. The fact that Dipender @ Bittoo was murdered stand proved from the fact that he was removed to GTB Hospital, where he was declared dead and postmortem on the dead body was conducted by Dr. Manish Pradhan, who opined that cause of death in the instant case was shock due to haemorrhage as a result of multiple antemortem stab injuries caused by a pointed blunt weapon/object.
12. Dr. Manisha Pradhan had found following 10 injuries on the dead body of deceased : 11 (1) Incised looking lacerated wound was present over upper part right ear lobe measuring 3cm X 0.5cm into whole thickness of ear lobe. (2) Lacerated wound measuring 1.7cm X 0.3cm X 0.3cm boned present over right lower jaw 8cm in front of right angle of mandible.
(3) Lacerated wound measuring 1.8cm X 0.3cm X0.3cm bone deep present over lower margin of right lower jaw, 0.5cm mediale to injury number 2, with underling fracture dislocation of the body of mandible. (4) Bruise bluish in colour present over right jaw measuring 8cm X5cm. (5) Abrasion reddish brown in colour measuring 6cm X 2cm present over right side of front of neck, 7cm below angel or mandible (6) Incised stabbed wound measuring 2.3cm X0.8cm X7.5cm cavity deep present over right upper chest wall, 7.5cm below the sternal end of clavical and 2cm lateral from the midline. The would is situated obliquely with the upper end medial to lower end. Both angles are blunt, margins are clean cut. The upper angle of the wound shows abrasion of the margins. The back of the wound goes backwards, inwards and downwards. Cutting through the shin subcutaneous tissues and intercostal muscles of the forth intercostal spaces enters the thorocic cavity and cuts through the upper lobe of right lung and ends in the lung parenchyma. The stab wound at the forth intercostal space measures 2cm X0.7cm and its upper lobe of lung, it measures 2cm X1.2cm X1.5cm deep. The upper lobe of right lung is collapsed. Haemorrhage present all along the track.
12(7) Incised stab wound measuring 2.5cm X0.5cm X7cm into cavity deep present over the right upper abdomen located 11.5cm below the right nipple and 8cm lateral to midline. The wound is situated obliquely with the upper and lateral to the lower end. Both angles are blunt and upper angles margin is abroaded. Margins are clean cut. The track of the wound goes inwards, backwards and downwards cutting through the shin, subcutaneous tissues intercostal muscles at the 9th intercostal space, enters the abdominal cavity by cutting through the paretonean and cuts through the anterior surface of right lobe of liver, where the stab wound measures 6.5cm X 0.7cm X 4.5cm parenchyma. Haemorrhage present all over the track.
(8) Incised stab wound measuring 2.2cm X0.5cm X7cm cavity deep present over the right upper abdominal wall located 2cm below injury No.7 and 2.5cm lateral to the midline. The wound is placed obliquely with the upper and lateral to the lower end. Both angles were blunt, margins of the upper angle was abraded. The margins were clean cut. The track of the wound goes inwards, backwards and downwards, cutting through the shin, subcutaneous tissues and abdominal musculature, enters the abdominal cavity, cuts through the anterior surface of the right lobe of liver. The wound in the right lobe of liver measures 3.9cm X0.6cm X1.8cm deep located 2cxm below and 5cm medial to wound of liver in injury No.7. Haemorrhage present along the track.
(9) Incised stab wound measuring 2.2cm X 0.6cm X8cm into cavity deep 13 present over the right upper abdomen two cm below injury No.8 and 6cm lateral to midline. The wound is located obliquely with the upper end lateral to the lower end. Both angles are blunt with upper margins with upper angles abraded. Margins are clean cut. The track goes inwards, backwards and downwards cutting through the shin, subcutaneous tissues and abdominal muscles and enters the abdominal cavity, cuts the right lobe of liver and ends in the liver parechyma. The stab wound over the liver measures 3.9cm X0.6cm X 1.8cm parechyma deep and stitched 3cm below injury No.8 and 2cm lateral to injury No.8. Haemorrhage present all along the track. (10) Incised stab wound measuring 2.8cm X0.6cm X2cm deep situated over right upper abdomen, 1.5cm below the injury No.6 and 10cm lateral to midline. The wound is located obliquely with its upper and lateral to lower end. Both angles are blunt with marginal abrasions of the upper angle. The track goes inwards, backwards and slightly downwards cutting through the shin, subcutaneous tissues and ends superficially in the subcutaneous plain.
13. That being so, it is to be seen whether accused persons are responsible for causing murder of Dipender @ Bittoo.
14. In order to substantiate its case, prosecution has relied upon : (A) Eyewitnesses account of the incident, (B)Recovery of weapon of offence at the instance of the accused persons, and (C) Motive.
14
15. I shall take up each of them one by one.
16. Witness to the incident PW6 Deepak Kumar is the brother of deceased. He projects that on 17.08.08 at about 4.30pm, he was present at his house. Monu, a boy aged about 2022 years, who resides in his neighbourhood came home while running and told him that some persons were assaulting Dipender @ Bittoo at street No.4, Shadatpur Extn., Delhi. He rushed towards that street. As soon as, he turned in that street, he saw Dipender lying on the ground and being assaulted by Hari Singh, Puran and Anand Pal. His brother was smeared with blood and lying on the ground. He raised an alarm in a loud voice. On hearing his noise, accused persons ran away on back side. He reached near his brother. On seeing his condition, he became disturbed. After about two or three minutes, he gave a telephone call to his brotherinlaw (Jija). He informed him on phone that Puran Singh, Anand Pal and Hari Singh had assaulted his brother and had ran away. He had also narrated before him that some persons, who were husbands of the ladies, who had lodged protest a day before at his house, had assaulted his brother. His brotherinlaw and sister reached the spot. His brotherinlaw gave a telephone call to police control room. In the meantime, his mother also reached there, who fell down and became unconscious. After about ten or fifteen minutes, PCR van reached there. His brotherinlaw removed his brother to hospital in PCR Van. Since his mother was not in good condition, hence he had not gone to hospital. His brotherinlaw gave a telephone call 15 from hospital and informed that Dipender @ Bittoo was no more.
17. Akhilesh Kumar Rai (PW7) is the brotherinlaw of Dipender @ Bittoo. He has testified that on 17.08.08, on receipt of a telephone call of Deepak, who informed him that someone was quarreling with Bittoo, he ran towards house No. N91, Street No.4, Shahdatpur Extension, Delhi, and found Bittoo lying on the ground. Deepak was standing by his side. He saw three or four persons running away from there. Since those persons were not known to him, he could not identify them. Since this witness did not support the case of prosecution in all material particulars, he was crossexamined by the ld. Prosecutor and in crossexamination he denied that he came to know that Dipender was caught hold by Anand Pal, Puran Singh and Hari Singh or that they assaulted Dipender and made him unconscious. He was confronted with various portions of his statement Ex.PW7/A, which he denied having made to the police. He went on stating that he had stated before the IO that names of the assailants were given to him by Deepak. He was not in a position to identify the persons, who were running from the spot. Therefore, he could not say whether accused persons, standing in the dock, were the same persons who were running away from the spot.
18. Ambalika (PW11) is the sister of deceased and she has also deposed that on 17.08.08 her brother Deepak Kumar gave a telephone call to her husband and her husband was talking to Deepak in disturbed mood. She inquired from him as to what was the matter, thereupon he told her that some 16 persons were assaulting Bittoo and immediately went downstairs. She followed him and went to street No.5, Shahdatpur Extension, Delhi. Dipender @ Bittoo was lying in the street in front of house of accused Anand Pal and Puran Singh. Her husband gave a telephone call to police control room, who came and removed Dipender to hospital.
19. The aforesaid evidence led by the prosecution goes to show that although Ambalika claims that she had followed her husband to the spot on receiving phone call of her brother Deepak Kumar and although Akhilesh Kumar claims that when he reached spot, he saw three of four persons running away from the spot. But, testimony of Ambalika is completely silent in this regard. Moreover, according to Deepak and Akhilesh Rai, they had gone to "Gali No.4", while according to Ambalika, she had gone to "Gali No.5"
where she found her brother lying on the street. Under these circumstances, in view of the discrepancy appearing in the testimony of these witnesses, while on the one hand place of incident becomes doubtful, on the other hand it becomes clear that she did not witness any incident.
20. Even as regard Akhilesh Kumar is concerned, his testimony is confined to the fact that he saw three or four persons running away from the spot, he could not identify any one of them. Despite crossexamination by the ld. Prosecutor in this regard, nothing material could be elicited to favour the case of prosecution. Even otherwise, his testimony of having witnessed three or four persons running away from the spot does not inspire confidence, 17 inasmuch as, Deepak Kumar had deposed that when he reached the spot on being informed by Monu that Dipender was being assaulted, he found his brother lying on the ground and being assaulted by the accused persons. He was smeared with blood. He raised an alarm in loud voice. On hearing his voice, accused persons ran away on the back side. On seeing the condition of his brother, he became disturbed. After about two or three minutes, he gave a telephone call to his brotherinlaw. Meaning thereby that before he informed his brotherinlaw on telephone, the assailants had already escaped from the spot. Therefore, there was no occasion for Akhilesh Kumar Rai to see three or four persons running away from the spot.
21. Then remains the sole testimony of Deepak Kumar, who is also real brother of deceased and as such an interested witness. As regard the legal proposition regarding the sole testimony of a witness, it is settled that in a criminal trial, creditable evidence of even a solitary witness can form the basis of conviction and that of even half a dozen witnesses may not form such basis, unless their evidence is found to be trustworthy. As far back as in the year, 1957, hon'ble Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 observed as under : "On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of a single 18 witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character. (3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes."
This very authority was referred to with approval in Jagdish Prasad Vs. State of M.P., AIR 1994 SC 1251, and Kunju @ Balachandran v. State of Tamil Nadu, 2008 Cr.L.J. 1804. Section 134 of the Indian Evidence Act has also recognized the maxim that "evidence has to be weighed and not counted". Thus, the question for consideration comes as to whether testimony of PW6 Deepak is of such a nature that conviction of accused persons can be based on his solitary testimony, without any corroboration.
22. At the very outset, it may be mentioned that a very vague version has been given by him, inasmuch as, according to him on being informed by Monu, when he reached he saw Dipender lying on the ground and being assaulted by Hari Singh, Puran Singh and Anand Pal. Testimony of this 19 witness falls short of giving description and the manner in which the accused persons were assaulting Dipender. He has not even deposed regarding the weapon of offence used by these person in commission of crime. Moreover, while in his deposition before the Court he has deposed that Monu, a boy aged about 2022 years, who reside in his neighbourhood came home while running and informed that some persons were assaulting Dipender @ Bittoo. However, when his statement under section 161 Cr.P.C was recorded by police, he had not given the name or the age of the informant. Further more, he has deposed that when he telephoned his brotherinlaw, he gave name of the assailants, who had assaulted his brother and had ran away, and further that those persons were husband of the ladies, who had raised protest at their house a day before. However, testimony of this witness does not find corroboration in this regard from Akhilesh Kumar, who has deposed before the Court that Deepak had not given the name of the assailants to him on telephone and he had also not informed him as to how many persons were assaulting Dipender. In fact, Deepak contradicted himself, when in his cross examination, he deposed that he did not conveyed name of the accused persons to his brotherinlaw on telephone. That being so, the witness is changing his stand time and again and is therefore not reliable.
23. Moreover, he claims that in his presence, Inspector Netra Pal Singh came and a brick smeared with blood was collected. Blood was splashed on the wall near the place of incident. Same was also lifted from the spot. Blood 20 was scratched from the wall, which was also lifted. Mobile phone in damaged condition and its key pad were also taken into possession. However, Constable Sukram Pal (PW13) has deposed that at the time of lifting sample, brotherinlaw, sister and brother of the deceased were not present at the spot. Needless to say, Deepak Kumar is the real brother of deceased, as such he is an interested witness. That being so, his testimony is required to be scrutinize with great care. As observed by hon' ble High Court in 2009 IV (AD) Delhi 356, Mahender and another vs. State, testimony of related witnesses cannot be thrown out just because of this fact. But at the same time, evidence of closely related witnesses must be equally weighed and scrutinized by the Court. In 2003 (2) Crimes 48, Suresh Chaudhary etc vs. State of Bihar, sole eyewitness was brother of the deceased and hon'ble Apex Court observed that the evidence of such witness was required to be assessed cautiously.
24. In view of discussions made above, presence of Deepak at the spot at the time of commission of crime seems to be doubtful. It seems that after the incident had taken place, he might have reached the spot and finding his brother smeared with blood and lying on the ground, he might have informed his brotherinlaw who reached the spot and then informed the Police control room. Thereafter, injured was removed to hospital by his brotherinlaw.
25. Result of the aforesaid discussion is that testimony of Deepak Kumar is not worthy of credence so as to convict accused persons on his 21 solitary testimony.
26. Another piece of evidence relied upon by the prosecution is the arrest of accused persons and disclosure statements made by them and recovery of weapon of offences at their instance.
27. Material witnesses in this regard are ASI Trilomani Bhatt (PW3), Kuldeep Constable (PW14), Netra Pal Singh, Inspector (PW15) and Sukram Pal, Constable (PW13). ASI Tilomani Bhatt has deposed that on 18.08.05, he along with Constable Kuldeep joined investigation of the case on asking of Inspector, Netra Pal Singh. He went to house No. N91, Street No.4, Shahdatpur Extension, Delhi. Dharamwati, wife of Anand Pal met them there. She was interrogated. She informed that her husband and brothersinlaw may be available in house No. C181, Street No.4, KBlock, Sagarpur Extension, Delhi. Accordingly, they went to said house, which was found locked from inside. On knocking the same, somebody opened the door. Dharamwati pointed out towards the accused persons, who were interrogated and were arrested vide memo Ex.PW3/E1, PW3/E2 and PW3/E3. Constable Kuldeep has also deposed that on 18.08.08, he along with Inspector Netra Pal Singh and ASI Tilomani Bhatt went to house of accused persons, situated at KBlock, Sagarpur Extension, where Smt. Dharamwati, wife of accused Anand Pal, met them. She took them to gali No.4, KBlock, Sagarpur Extension, Delhi. House No. C181 situated at KBlock belonged to one of their acquaintance, namely, Vasudev and accused persons were present 22 inside the house. Inspector Netra Pal Singh has also deposed that on 18.08.08, he went to house of accused Anand Pal situated at premises No. N101, Gali No.4, Shahdatpur Extension, Delhi, where Smt. Dharamwati, wife of Anand Pal, met them. He made inquires from her. Firstly, she was not giving the exact location of the accused persons. But during sustained interrogation, she took them to Gali No. 46, KBlock, Shahdatpur Extension, Delhi, at the house of Vasudev Singh. After knocking the door, one lady who was wife of Vasudev Singh came out. All the accused persons were present in one room on the first floor of that house. Accused persons were interrogated and arrested. Admittedly, there is no independent witness to arrest of accused. It has come in the testimony of police officials that house of accused as well as the house from where accused persons are stated to have been arrested, is surrounded by residential houses. There is a market also and shops were opened. However, no effort was made to join any independent person at the time of investigation, so much so that even wife of Vasudev Singh, from whose house the accused persons were alleged to have been arrested, was not made a witness to their arrest.
28. It is further the case of prosecution that after arrest of accused persons, they made disclosure statements. As per disclosure statement made by accused Anand Pal Ex.PW3/G, he could get recovered a "sirhana wahi" from roof of house of his brother Puran Singh. As per disclosure statement of accused Hari Singh Ex.PW3/H, he could get recovered the 23 scissors lying in the courtyard of accused Anand Pal, which was used in commission of crime. Puran Singh, in his disclosure statement Ex.PW3/J, stated that he could get recovered a broken lathi from his house. The witnesses to the disclosure statements and recovery memos are ASI Tilomani Bhatt and Constable Sukram Singh.
29. At the outset, it may be mentioned that Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of section 25 and 26 of the Evidence Act, there is an exception carved out by section 27 of the Evidence Act providing that when any fact is deposed to is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
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30. Provisions of section 100 of the Code of Criminal Procedure relates to searches. The object is to ensure confidence in the neighbours and in the public generally that anything incriminating which may be found in the premises searched, was really found and was not planted. Subsection (4) refers only to the search of place. It is obligatory on the part of the police officer to call on and get two or more respectable inhabitants of the locality to be witnesses of the search. These witnesses must be called before the search is started.
31. In the instant case, it has come that house of accused persons was surrounded by other houses and even market was there, which was open. However, no sincere effort has been made by the investigating officer to join them in proceedings. Therefore, there remains the testimony of police officials. It has to seen whether their testimony inspires confidence in regard to recovery of weapon of offence at the instance of accused persons. PW3 Tilomani Bhatt has deposed that in pursuance to the disclosure statement, accused Anand Pal led the police party to a house, bearing municipal number N101, Street No.4, Shahdatpur Extension, Delhi. Some bricks were lying in the courtyard of his house. Over those bricks, a scissors was lying. He lifted that scissors and produced the same before investigating officer, who sealed the same in a parcel with the seal of NPS and took the same into possession vide memo Ex.PW3/K. This witness did not depose about recovery of any other article at the instance of any other accused.
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According to Constable Kuldeep, police officials along with all the three accused persons came to the house of accused Anand Pal. Hari Singh pointed out towards the courtyard of his house and got recovered one scissor, which was lying beneath the bricks. House of accused Puran Singh is situated near house of accused Anand Pal and he got recovered one broken lathi and one Sirhana wahi and the same were taken into possession.
According to Inspector Netra Pal Singh, after disclosure statements were made by the accused persons, they went inside the house of accused Anand Pal and on his pointing out Hari Singh got recovered one scissors which was lying beneath bricks and the same was seized. Thereafter, accused Puran Singh took them to his house, which was adjacent to the house of Anand Pal and got recovered one sirhana wahi from the roof. He also got recovered one broken lathi from one room on the ground floor of the house, and the same was seized.
32. The aforesaid evidence, led by the prosecution, goes to show that different versions are coming regarding the recovery of weapon of offence, inasmuch as, testimony of ASI Tilomani Bhatt is confined to recovery of one scissor at the instance of accused Anand Pal. According to Constable Kuldeep and Inspector Netra Pal Singh, scissors was recovered from house of accused Anand Pal, but it was got recovered by accused Hari Singh. Puran Singh got recovered one broken lathi and one sirhana wahi. If the testimony of Constable Kuldeep and Inspector Netra Pal Singh is believed, 26 then no recovery was effected at the instance of accused Anand Pal, whereas if testimony of ASI Tilomani Bhatt is believed then except for Anand Pal, no recovery was effected at the instance of accused Hari Singh and Puran Singh. This discrepancy in testimony of police officials cannot be said to be a minor discrepancy as submitted by ld. APP. In fact it substantially affects the credibility of witnesses regarding the manner in which recovery is alleged to have been effected and the person at whose instance it has been recovered. Besides the fact that no independent person was joined at the time of recovery, even police officials have not corroborated each other. Under these circumstances, it cannot be said that prosecution has been able to establish the recovery of weapon of offence at the instance of accused persons.
33. According to prosecution, Dipender @ Bittoo had quarreled with Vinod, nephew of wives of Puran Singh, Anand Pal and Veerpal. Therefore, they had come to lodge protest on 16.08.08 at the house of Deepak and threatened to see Dipender. In pursuance thereof, on 17.08.08 accused persons committed murder of Dipender.
34. In order to prove motive for commission of crime, material witnesses are Deepak Kumar (PW6), Akhilesh Kumar (PW7) and Ambalika (PW11).
35. Deepak Kumar (PW6) had testified that on 18.08.08, wives of Puran Singh, Anand Pal and Veerpal came to his house in order to lodge a complaint against Dipender @ Bittoo, since he had quarreled with Vinod, who 27 was nephew of those ladies. At that time, his sister Ambalika and brotherin law were present at the house. He came to know about this fact, when he returned home. Meaning thereby, no protest was lodged by the ladies in his presence. Further more, when statement of this witness was recorded by police, which is Ex.PW6/DA, a completely different version was given, as such he was confronted on material portions of this statement by ld. defence counsel, wherein he had stated that on 16.08.08, his brother Dipender entered house of Anand Pal and misbehaved with his daughter. Wife of Anand Pal along with his two sisters had come to house his house to lodged a complaint against Dipender, since he had misbehaved with her daughter. Under these circumstances, firstly Deepak Kumar is not an eyewitness to the protest made by wives of the accused against Dipender. Even otherwise, two different versions are forthcoming.
36. Similarly, Akhilesh Kumar Rai (PW7) has deposed that on 16.08.08, it was Raksha Bandhan festival. He was present at the house of his inlaws. At about 1.30pm, three ladies came and told that Dipender @ Bittoo was raising an altercation with Vinod and they requested them to stop Dipender from quarreling with Vinod. He told them, he would calm Dipender. Ladies, thereafter left criminally intimidating that they would get Dipender finished. This witness had also given a completely different version when his statement u/s 161 Cr.P.C was recovered. Therefore, he was confronted with his statement Ex.PW7/DA by ld. Defence counsel, wherein he had stated that 28 Dipender entered the house of Anand Pal and misbehaved with his daughter, aged about 1820 years. Wife of Anand Pal and her two sisters came to his house and lodged protest about misbehaviour with Seema. To the same effect is the testimony of PW11 Ambalika, sister of deceased, who had also deposed that on 16.08.08, wife of Anand Pal, Puran Singh and Veerpal came to her house in order to make complaint against Dipender @ Bittoo, alleging that he was harassing their nephew and was quarreling with them. They left the spot, after criminally intimidating that they will get him eliminated, since he was harassing their nephew. This witness had also stated in her statement Ex.PW11/DA that wife of Anand Pal, Veerpal and Puran Singh had come to their house in order to lodge protest as deceased had misbehaved with Seema, aged about 1820 years. Under these circumstances, different versions are coming in regard to motive alleged by the prosecution as to whether Dipender had quarrelled with Vinod, nephew of wives of Puran Singh, Veerpal and Anand Pal or he had misbehaved with Seema, daughter of Anand Pal. Further more, this plea of alleged quarrel with Vinod is not sufficient, to raise a presumption that for a quarrel or misbehavior, the husband of the ladies would to go the extent of murdering Dipender. More particularly, when alleged threat was given on 16.08.08, i.e., a day before murder. Therefore, there was sufficient time gap between lodging the protest and actual commission of crime as such there was sufficient time for the accused persons to calm down.
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37. Normally, test of provocation is whether a reasonable man belonging to the same class or society as the accused, placed in the situation in which accused persons were placed, would be so provocative as to loose control. In the instant case, to my mind, the complaint made by wives of Puran Singh, Anand Pal and Veer Pal or the threats given by them was not such a criminal provocation that accused persons would loose control and commit such heinous crime. Under these circumstances, motive to commit crime is not proved. Moreover, in AIR 1997 SC 1593, Murari Lal Sharma and others vs. State of Maharasthra, it was held that if evidence of eyewitness is truthful, motive assumes secondary role. Substantially, similar view was taken in AIR 1998 SC 192, Sunder Narain @ Monu Pandey vs. State of UP, where it was held that when fact of murder is amply proved by the evidence, there is no necessity to prove motive. In the instant case, as discussed above, the ocular testimony of prosecution witnesses are not truthful, reliable and does not inspire confidence. Even motive to commit crime is not proved.
38. Eyewitness account of the incident is not reliable and trustworthy, even motive to commit crime is not duly established and recovery of weapon of offence at the instance of accused persons is not established. Besides the same, even investigation is tainted for the reasons discussed hereinafter.
39. The prosecution machinery in the instant case was set in motion on receipt of DD No. 21A dated 17.08.08. A perusal of this DD goes to show that information was received regarding commission of murder opposite 30 house No. "A91", Gali No.4, Shahdatpur Extension, Delhi. However, ASI Tilomani Bhatt on receipt of this DD number went to house No. "N91", street No.4, Shahdatpur Extension, Delhi, along with Constable Sukram Pal, where blood in plenty was found. Even crime team, comprising of SI Itender Swaroop Yadav and Constable Shyam Lal, reached house No. N91, Shahdatpur Extension, Delhi, where they found blood was lying in the street, splashed on the wall of the house, broken piece of wooden danda lying at the spot. According to Constable Sukram Pal, house number was not mentioned in DD, and only gali No.4 was mentioned, which is belied by DD No.21. However, Inspector Netra Pal Singh had deposed that he had gone to house No. A91 and found blood lying in front of this house. Under these circumstances, place of occurrence is not established beyond reasonable doubt. It is not established whether murder was committed opposite house No. "A91 or N91". 1991 SCC (Cri) 421, Nain Singh and another vs. State of U.P was also a case wherein an appeal was preferred against conviction. One of the factors which proved fatal for the prosecution was the fact that place of occurrence stated by prosecution witnesses was different from that mentioned in the FIR. In the instant case also, submission of the ld. Counsel for the accused that place of occurrence has changed or at any rate is not specifically fixed cannot be said to be without force.
40. Further more, as per prosecution case, on receipt of DD No. 21A Ex.PW3/A, ASI Tilomani Bhatt went to the place in front of house No. N91, 31 Street No.4, Shahdatpur Extension, Delhi. On inquiry, he was informed by the public persons present over there that Dipender @ Bittoo has been removed to GTB Hospital by PCR Van. Inspector Netra Pal Singh and Sh. R.C. Ranga, SHO PS Khajuri Khas also reached the spot. According to Inspector Netra Pal Singh, when he reached spot, no eyewitness was present at the spot. Therefore, after giving instructions to ASI Tilomani Bhatt and Constable Sukram Pal, he went to GTB Hospital where he came to know that injured has been declared brought dead by the doctor. He did not find any eyewitness in hospital. Therefore, he came back to the spot and made endorsement on DD No.21 itself and sent the rukka through Constable Sukram Pal for getting the case registered. He further deposed that in the meanwhile, Ambalika, sister of deceased and Akhilesh Kumar, brotherinlaw of deceased also met him at the spot. As seen above, according to Deepak Kumar, on coming to know that his brother was being assaulted by the accused persons, he had reached the spot and in his presence Inspector Netra Pal Singh had collected various samples. If he was present at the spot, then there is no reason as to why rukka was sent after making endorsement on DD No. 21A and why not statement of Deepak was recorded. Similarly, according to Akhilesh Kumar, he had gone to hospital along with PCR van. However, when Inspector Netra Pal Singh reached hospital, he did not find any eyewitness at the spot. Under these circumstances, presence of these public witnesses at the spot or witnesses witnessing the incident becomes 32 very doubtful.
41. Further more, according to Deepak, he was informed by Monu, a boy aged about 2022 years, who used to reside in his neighbourhood , informed that his brother was being assaulted by someone. There is substantial force in the plea of ld. Defence counsel that this was the most material witness, which prosecution has failed to examine. Although as regards the legal proposition in the matter of appreciation of evidence of a witness is concerned, it is well settled that in criminal trial creditable evidence of even a solitary witness can form basis of conviction and it is not the number of witness, but quality of their evidence which matter, and non examination of a witness cannot affect the prosecution case, but non examination of a material witness, certainly affects the same. In the instant case, Monu was most material witness. In fact, he was the person, who had witnessed the occurrence and then informed Deepak. But no effort was made by the investigating officer to examine this person as a witness. Non examination of this material witness adversely affects the case of prosecution.
42. HC Sultan Singh, who had taken injured to hospital was also not examined by the prosecution. He was a link in the chain and due to his non examination link of chain of circumstantial evidence is missing.
43. Further more, according to SI Itender Swaroop Yadav, who was the member of mobile crime team, on receiving message from police control 33 room, reached street No.4, Shahdatpur Extension, Delhi. He found blood lying in the street. Blood was splashed on wall of H.No. N91, Shahdatpur Extension, Delhi. Broken pieces of wooden stick were also lying there at the spot. Constable Shyam Lal took photographs of scene of crime. In cross examination, he stated that he perceived that one club was hit on some hard object, which had broken into pieces. Constable Shyam Lal took 11 photographs of the spot, which are Ex.PW5/A1 to Ex.PW5/A11. Perusal of the photographs, coupled with testimony of SI Itender Swaroop Yadav goes to show that broken piece of wooden stick were lying at the spot. However, same were not taken into possession, rather from the spot one mobile key pad, one mobile without battery, some pieces of bricks were taken into possession, however, broken pieces of wooden stick were not taken into possession. No explanation is forthcoming for nonseizure of broken pieces of wooden stick. Further more, as per the case of prosecution, at the instance of one of the accused, one lathi/danda Ex.P7 was also alleged to have been recovered. However, this lathi or danda did not telly with broken pieces of wooden stick, which was found lying at the spot. Moreover, in the statement of Inspector Netra Pal Singh, some broken bangles were taken out from a container, but none of the police officials had deposed that broken bangles were found at the spot or taken into possession. Further more, no investigation was carried out by the investigating officer regarding mobile, which was alleged to have been recovered from the spot. This also cast a 34 doubt on the prosecution story.
44. Further more, PW2 HC Mahesh Kumar was working as MHC(M) on 17.08.08, when four parcels sealed with seal of NPS were deposited with him in the Malkhana by Inspector Netra Pal and he made an entry at Sr. No. 1705 of Register No.19, copy of which is Ex.PW2/A. On 18.08.08, five parcels duly sealed with seal of NPS were deposited by Inspector Netra Pal Singh. Another entry to this effect was made at Sr. No. 1707 in register No.19, copy of which is Ex.PW2/B. According to him, on 12.11.08, nine parcels duly sealed with seal of NPS were handed over to Constable Kuldeep for onward transmission to Rohini, vide R.C. No. 89/21. It is not established as to who had sent the parcels to FSL Rohini, inasmuch as, Inspector Netra Pal Singh has deposed that he got sent exhibits to FSL Rohini. SI Ajmer Singh, who was entrusted with investigation of this case on 12.11.08 has also deposed that nine parcels duly sealed with seal of NPS were sent to FSL Rohini through Constable Kuldeep in intact condition, vide R.C. No. 89/21 and he recorded statement of Constable Kuldeep and MHC(M) in this regard. Constable Kuldeep, who is alleged to have taken these sample to FSL Rohini was examined as PW14. However, testimony of this witness was conspicuously silent regarding taking the sealed parcels to FSL and depositing the same in intact condition. As per testimony of PW16, Sh. V. Shankarnaryanan, Sr. Scientific Assistant, on 12.11.08 seven sealed cloth parcels were received in the office of FSL in connection with this case. If the 35 statement of MHC(M) and SI Ajmer Singh is believed, then nine parcels were sent to FSL, but in the FSL only 7 parcels were received. Then it is not explained as to where two parcels have gone. Further more, a perusal of Ex.PW2/A, copy of register No.19, goes to show that on 07.11.08, samples were sent to FSL through Constable Satbir Singh, vide R.C. No. 89/21, but the same were not deposited there. None of the prosecution witnesses have deposed that before sending parcels through Constable Kuldeep Singh, same were sent through Constable Satbir Singh also or that same were not deposited there. The fact remains that it is not established beyond reasonable doubt as to who had sent samples to FSL. Constable Kuldeep has nowhere deposed that he deposited case property in FSL or that it remained intact. Rather, FSL report amply makes it clear that there is tampering with the case property, inasmuch as, although nine samples were sent, FSL received only 7 samples for which no explanation is forthcoming from the side of prosecution.
45. Further more, according to the case of prosecution, at the instance of accused persons Scissor, broken lathi/danda and sirhana wahi were recovered. It is not established as to whether the recovered weapons were used in the commission of offence, inasmuch as, Ambalika was not the eyewitness. Akhilesh Kumar although claims that three or four persons were running from the spot, but he could not identify them. PW6 Deepak although projected that accused persons were assaulting his brother Dipender, but he 36 has not specified the manner of assault nor gave description of any weapon of offence, which might have been used by the accused persons in the commission of crime as such neither the weapon of offence was shown to him nor did he identified the same. Further more, weapons of offence were not sent to doctor Manisha Pradhan, who conducted postmortem on the dead body of Dipender Kumar, for subsequent opinion. With the result, there is nothing on record to connect that weapons of offence which are alleged to have been recovered at the instance of accused persons were used in the commission of murder of Dipender.
46. As regard submissions of ld. Counsel for the accused that no injury on the head of deceased was found by the doctor, who conducted autopsy on the dead body of deceased and even five cuts present on the shirt did not correspond to the injuries is devoid of merits, inasmuch as, Dr. Manisha Pradhan opined that cause of death was shock due to haemorrhage as a result of multiple antemortem injuries caused by a pointed blunt weapon/object. Injuries No.6, 7, 8 and 10 corresponded to the cuts present over the lower front of right side of the shirt. Moreover, there is force in the plea of ld. Prosecutor that during the incident, shirt might have gone upward also, which resulted in cuts, which corresponded to the other parts of the body. Similarly, on dissection of the body, doctor noted even subdural haemorrage present in the brain over right temporparietal region and base of temporal lobe. Subarchanoid haemorrhage was present focally over right 37 parietal lobe. That being so, even submissions which were also made only during the course of arguments and were not put to the doctor during cross examination to get clarification, is devoid of merits. However, the fact remains that recovered weapons were not sent to doctor for further opinion. With the result, it is not established that injuries found on the dead body of Dipender @ Bittoo was possible by the weapon of offence allegedly recovered from accused.
47. Result of the aforesaid discussion is that evidence adduced by the prosecution falls short of test of reliability and acceptability, and as such it is highly unsafe to act upon it. The theory of scrupulous examination of facts and circumstances of the case leads to irresistible and inescapable conclusion that prosecution has miserably failed to establish the charges levelled against the accused persons by producing cogent, reliable and trustworthy evidence.
48. Coming to defence of accused, besides pleading that they are innocent and have been falsely implicated in this case, accused Anand Pal has taken a plea of alibi. According to him, he was on his duty at H.No. 244, Gali No. 43, Village Gavanri, where he was working as electrician for four or five days. According to accused Puran Singh, he was beldar and was working at the house of Girdhari from 8am to 5pm. He reached his house at 7pm and was falsely implicated in this case. According to accused Hari Singh, he was lifted from his house in the presence of his wife and friend Rakesh on 18th at 38 7.30am. On the date of incident, he was present at his village, where he had gone on 14th and had come back on 18th. He had gone to see his ailing father, who had suffered paralysis attack. He alleges false implication in this case because his brother had signed the application against the deceased by the locality people. Due to revenge, brother of deceased, and relatives of the deceased had falsely implicated him in this case.
49. In order to substantiate this plea, they have examined three witnesses. DW1 Surender Pal has deposed that on 14.08.08, one of his friend Rajesh provided electric work to Anand Pal. He provided electric items to Anand Pal to work at his house from 14th to 180808. DW2 Raj Bahadur and DW3 Mahender Singh have deposed that accused Hari Singh had come to their village Dubara. At that time, his father was ill and had suffered paralysis. Hari Singh remained at their village till 17th and participated in wrestling competition. He left the village on 18th. On 20th, wife of Hari Singh informed them on telephone that he has been falsely apprehended by police officials. Not much weightage can be given to this plea of accused, inasmuch as, it has seen the light of the day for the first time in their statement recorded u/s 313 Cr.P.C and no such suggestion was given to any prosecution witness. But that is of no consequence because it is well established principle of law that prosecution is required to prove the guilt of the accused beyond reasonable doubt. In Data Xiva Naique Desai and another v. The State, AIR 1967 Goa, Daman and Diu 4, hon' ble Court reiterated well known 39 principles of the criminal jurisprudence which are reproduced as under :
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime : (1) The onus of proving everything essential to be establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."
50. Without giving much need to the plea taken by the accused, it is suffice to say that onus was squarely upon the prosecution to bring home guilt of the accused persons beyond reasonable doubt, which in the instant case, prosecution has not been able to establish either by ocular evidence or from circumstantial evidence.
51. The result of the aforesaid discussions is that accused persons are entitled to benefit of doubt. They are accordingly granted benefit of doubt and are acquitted of the charges. They be set at liberty, if not wanted in any other case. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta) On this 22nd day of January, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.