Delhi District Court
Anjan Kumar Sharma vs . State Of Assam (2017) 14 Scc 359 : on 19 December, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE
(NDPS) SOUTHEAST: SAKET COURTS: NEW DELHI
SC No. 2663 of 16
State Digitally
signed by
SURESH
SURESH KUMAR
Vs. KUMAR GUPTA
Manoj Kumar GUPTA Date:
2019.12.23
S/o Sh. Ram Dass 16:02:01
R/o Jhuggi No. C68/2 +0530
V.P. Singh Camp, Pul Prahladpur
New Delhi
Permanent R/o Village Kodara,
District Mau, UP.
FIR No. 77/16
PS: Pul Prahladpur
U/s. 302 IPC
Instituted on : 12.07.2016
Received after committal: 05.09.2016
Argument heard on: 09.12.2019
Decided on : 19.12.2019
JUDGMENT
1 The facts of the prosecution case are like this. On 30.03.2016 FIR alongwith rukka was received by Inspector Ashok Kumar for further investigation of the case. DD No. 4A dated 30.03.2016 PS, Pul Prahladpur was recorded to the effect that duty Ct. Sunil at AIIMS Trauma Centre has informed that injured Hashu State v. Manoj Kumar SC 2663 of 2016 . Page No. 1/38 S/o unknown R/o unknown was brought to hospital who is declared brought dead. DD was brought to the notice of SI Sabab Alam on telephone for further action. DD was sent to SI Sabab Alam through constable. DD No.4A was received by SI Sabab Alam who alongwith Ct. Kamla Prasad went to AIIMS, Trauma Centre, New Delhi where MLC of Hashu was taken. Vinod Kumar, brother of deceased met him in the hospital. The wound marks were found on the front and back side and on the left upper side of the head. Vinod Kumar disclosed the name of deceased as Ashu. No eye witness was present in the hospital. Supervisor Naseem met in the hospital. SI Sabab Alam alongwith supervisor and constable came to ICD Depot, TKD where one truck trolla bearing No. HR38V0986 was found parked. The front side of the truck was towards western side. The truck trolla was checked. The blood was found spread near accelerator/brake and towards the window of driver side. The blood stained shoes of deceased were lying near accelerator. The senior officers were informed. No eye witness was found on the spot. Tehrir was prepared and sent to PS through Ct. Kamla Prasad for registration of case. FIR was registered and further investigation State v. Manoj Kumar SC 2663 of 2016 . Page No. 2/38 was handed over to Inspector Ashok Kumar. The copy of FIR was sent to senior officers.
2 Inspector Ashok Kumar reached on the spot. Site plan was prepared at the instance of Naseem. Crime team reached on the spot and inspected the scene of crime i.e. truck trolla No. HR38V 3986. The photographs were taken from different angles. The exhibits were collected from cabin of the truck/trolla. Statements U/s 161 CrPC were recorded. The case property was deposited in the malkhana.
3 The postmortem on the body of the deceased was conducted at JPNATC AIIMS New Delhi. The pullandas were given by mortuary staff to the police which were taken into possession vide separate recovery memo and deposited in the malkhana. The statements of witnesses U/s 161 CrPC were recorded and brother i.e. Bijender of the deceased told that accused Manoj was the friend of deceased who has murdered the deceased as accused suspected that deceased has illicit relations with his wife Antima.
4 On 13.04.2016 SI Dilbagh and HC Sarvan have State v. Manoj Kumar SC 2663 of 2016 . Page No. 3/38 produced the accused before the IO at PS. The accused was interrogated and his disclosure statement was recorded. He was arrested. The mobile phone of the deceased was got recovered from the accused from his jhuggi. The mobile phone of the deceased was identified by Pappu and Anil Puri. The weapon of offence was searched but in vain. The clothes of the accused, worn by him at the time of incident, were recovered from the house of his inlaws residing at Sangam Vihar, New Delhi. The cause of death is coma due to cranio cerebral injury caused by firearm which is sufficient in the ordinary course to cause the death. The blood and saliva samples of the accused were taken in JPNATC AIIMS New Delhi. The exhibits were sent to FSL Rohini. Statements U/s 161 CrPC were recorded. The investigation was completed. The charge sheet was filed u/s 302/404 IPC r/w Section 27 Arms Act for trial. The FSL report will be filed on its receipt from FSL.
5 The accused was produced from J/C. The copy of the charge sheet was supplied to him. On 29.08.2016 the case was committed to the court of Sessions by Ld. MM.
6 The charge under section 302/379/411 IPC was framed State v. Manoj Kumar SC 2663 of 2016 . Page No. 4/38 against the accused on 24.03.2017 by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
7 The prosecution has examined 25 witnesses.
8 The accused was examined under section 313 Cr.PC. His defence is that he has been falsely implicated. He was given biri at PS by the IO and forced him to smoke and thereafter seized the same. No recovery was effected from him or at his instance. The seized clothes do not belong to him. The deceased was not working with him though he was the driver of the truck. However, no defence evidence has been led.
9 PW1 Bijendra is brother of deceased Ashu. He stated that on 29.03.2016 his younger brother Upender has called him from AIIMS Trauma Centre that deceased is admitted to hospital in an injured condition upon which he reached at 12 midnight in the hospital where police officials were present. He was informed by the police officials that his brother Ashu has expired. He came back and thereafter again went to AIIMS Trauma Centre. The dead body was not handed over to him. He went to PS, PP Pur where he was informed that his brother has died due to gunshot injury. He went to State v. Manoj Kumar SC 2663 of 2016 . Page No. 5/38 hospital and identified the dead body of his brother. The dead body after postmortem was handed over to him vide memos Ex. PW1/A and B. He has told to the police that one Manoj i.e. accused was close friend of the deceased who used to visit house of his brother. He tried to call accused and his brother but their phones were switched off. He has also come to know about the illicit relations of deceased with the wife of accused on the day of incident and thereafter raised suspicion on the accused. During cross examination he stated that they are three brothers. He does not know who got his brother admitted to hospital. Deceased was bachelor. He was not on visiting terms with the accused. He has not seen the wife of accused. He does not know if wife of the accused has been residing in her parental home for 2 ½ years prior to the incident. He has not seen his brother disturbed prior to the incident though he has met his brother 34 hours prior to the incident. There are not many persons in ICD during night time. BSF personnels were deployed for security. CCTV is installed at entrance gate of ICD. He did not leave his house for duty with his brother. The statement of any other person was not recorded in his presence. Deceased was not having State v. Manoj Kumar SC 2663 of 2016 . Page No. 6/38 any enmity at his work place. The suggestion is denied that accused has been falsely implicated.
10 PW2 Upender is brother of deceased Ashu. He stated that deceased and accused were working as drivers in ICD Tughlakabad. His brother used to remain most of the times with the accused. The accused is married. On 29.03.2016 he was at Mundka where he received a call from a person from ICD that his brother has got injury on the head. He alongwith his family members went to AIIMS Trauma Centre where his dead body was identified vide memo Ex. PW2/A. The dead body after postmortem was handed over vide memo Ex. PW1/B. On 29.03.2016 during day time, he has received a phone call from the deceased who informed that he has a quarrel with accused on the issue of alleged illicit relations with his wife. Deceased has also informed him that Manoj has threatened to kill him. On 10.07.2016 police have met him and recorded his statement. The accused is identified by him. During cross examination he stated that he was not on visiting terms with the accused. They are having joint family. The accused has never visited their house. He does not know who has informed him about State v. Manoj Kumar SC 2663 of 2016 . Page No. 7/38 the head injury of his brother. The suggestion is denied that he is deliberately concealing the identity of the caller. He has not worked in ICD. The deceased has left the house at 8.30 pm when he was at Mundka. He has not told to the police about the receipt of phone call from his brother on the day of incident. He has never met the wife of accused. On the day of incident, he had left ICD at 4am and went to Mundka as he was on duty on vehicle. He does not know any person by the name of Vinod. The suggestion is denied that he was having dispute and enmity with his deceased brother or he was present at ICD at the time of incident or he is involved in the incident and hide himself in the vehicles. The suggestion is denied that he has managed the police and gave his statement to the police on 10.07.2016.
11 PW3 ASI Rajbir stated that on 20.06.2016 he was constable at PS PP Pur. On that day he has taken sealed case property and documents from malkhana vide RC No. 55/21/16 and deposited the same at FSL Rohini and acknowledgment receipt was taken.
12 PW4 Anil Puri stated that on 16.04.2016 at around 34 State v. Manoj Kumar SC 2663 of 2016 . Page No. 8/38 pm he alongwith Pappu Khan was present at V.P. Singh Camp where Inspector Ashok with other police officials and accused came. They all went to the house of accused. The accused has broken the lock of his house. One touch Lava Screen Phone was taken out by the accused which belonged to the deceased as he has seen him while carrying the same. He is doing labour at ICD. The accused and deceased were driving the vehicle in ICD. The mobile phone was sealed in a pullanda and taken into possession vide memo Ex. PW4/A. On 29.03.2016 he has seen both of them while coming inside ICD while he was going out of ICD Depot. He had come to know that both of them had quarreled on some issue. One of the friend of the deceased told him that deceased has relations with the wife of accused. He has identified the mobile phone Ex. P1 produced in the court. During cross examination he stated that Inspector Ashok has called them and told that they have to search the house of accused and further told to join the investigation. He alongwith Pappu has entered inside the house. The family members of the accused were not present at that time. The lock was broken by some person accompanying the police officials but it was not broken State v. Manoj Kumar SC 2663 of 2016 . Page No. 9/38 in his presence. The mobile phone was lying on the floor behind the door. The suggestion is denied that phone was not lying on the floor or it was not got recovered by the accused in his presence. He knows the brothers of deceased. The mobile phone was seized on the spot. The suggestion is denied that he has never joined the investigation or mobile phone was not recovered in his presence or he is deposing falsely at the behest of the brothers of deceased. 13 PW5 Pappu Khan stated that on 16.04.2016 he was driver at ICD Tughlakabad. On that day at 45 pm he was roaming at V.P. Singh Camp where police officials alongwith accused came and asked him to join the investigation for the search of the house of the accused. One Anil Puri also joined the investigation. The lock of the house of the accused was broken. They entered inside the house. One mobile phone belonging to deceased was recovered from the house. He knew the deceased and accused. He has seen the mobile phone of make Lava with the deceased on many occasions. He has seen one document i.e. seizure memo Ex. PW4/A which bears his signature at point A. The mobile phone is shown to him who has not identified the same. He was declared hostile and cross State v. Manoj Kumar SC 2663 of 2016 . Page No. 10/38 examined by Ld. Addl. PP for the state. He stated that the phone of make Lava was recovered from the house of accused which is Ex. P1. During cross examination he stated that he has been working at ICD since 1994. Many persons have entered inside the house of accused. The lock was broken by some police official. The mobile phone was lying on the floor in one room. The papers were signed by him in police station. The suggestion is denied that no mobile phone was got recovered from the house of the accused or he did not join the investigation.
14 PW6 Dr. Manish Kumar stated that on 03.06.2016 he has handed blood vial, swab of saliva and control of accused in a sealed manner sealed with seal JPNATC AIIMS NEW DELHI to the police.
15 PW7 ASI Daya Kishan stated that he alongwith IO and other police officials have taken the accused from lockup with the permission of the court to AIIMS Trauma Centre where swab of saliva, blood vial and control were taken and sealed in three separate pullandas by the doctor and handed over to them which were taken into possession vide memo Ex. PW7/A. State v. Manoj Kumar SC 2663 of 2016 . Page No. 11/38 16 PW8 Ct. Sunil stated that on the intervening night of 29/30.03.2016 he was duty constable at AIIMS Trauma Centre. On that night one patient was brought and admitted to the hospital upon which he has informed at 12.50 am to the duty officer with the request to send some IO. The information was recorded vide DD No.4A.
17 PW9 HC Gajender stated that on 30.03.2016 he was duty officer from 8am till 4pm. Ct. Kamla Prasad has brought one rukka in between 8.15 am8.30 am upon which he got recorded FIR Ex. PW9/A through computer operator and made endorsement Ex. PW9/B on the rukka. The copy of FIR and rukka were handed over to Ct. Kamla Prasad and further investigation was handed over to Inspector Ashok Kumar.
18 During intervening night of 29/30.03.2016 ASI Rampal was duty officer from 12 midnight till 8am who has recorded DD No.4A Ex. PW9/C. He has seen him while writing and signing so he can identify his handwriting.
19 PW10 Inspector Mukesh Kumar has proved scaled site plan Ex. PW10/A. State v. Manoj Kumar SC 2663 of 2016 . Page No. 12/38 20 PW11 HC Mahesh is a photographer in the crime team. He stated that on 30.03.2016 he alongwith SI Laxmi Chand and fingerprint expert reached at ICD Container Depot, TKD New Delhi where Inspector Ashok Kumar and other police officials met them. He has taken nine photographs of trolla No. HR38V0986 on the instructions of Crime Team Incharge and IO. The photographs are Ex.PA19 and negatives are Ex. PA10. The exhibits from Serial No. 1 to 6 were lifted by crime team Incharge and handed over to IO which were taken into possession.
21 PW12 SI Lakhmi stated that on 30.03.2016 he was Incharge Mobile Crime Team, South East District. On that day at 10am he has received an information from control room to reach stakeII, ICD Container Depot, Tughlakabad upon which he alongwith Ct. Anand and Ct. Mahesh reached there where SI Sabab Alam and other police officials met him. A trolla was found parked there. On inspection, blood was found lying near accelerator outside the gate of driver seat. Photographs were taken by Ct. Mahesh from different angles. He has lifted blood from three places, tshirt soaked with blood, one pair of shoes from inside the driver cabin. One fired State v. Manoj Kumar SC 2663 of 2016 . Page No. 13/38 bullet was found struck on the roof of cabin. Some hair was found near meter board and one led was lying at the accelerator. All these articles were lifted and handed over to SI Sabab Alam. He has prepared his report Ex. PW12/A. During cross examination no public person was found inside the cabin.
22 PW13 Ct. Nahar Singh stated that DD No.4A was handed over to him by duty officer which in turn was handed over to SI Sabab Alam who was present at ICD out gate.
23 PW14 HC Sarvan stated that on 13.04.2016 SI Dilbagh Singh has received in information that accused will go to the house of his inlaws to keep his clothes and thereafter he will go to Safdarjung Hospital for treatment. He alongwith SI Dilbagh reached at AIIMS Hospital where accused was searched but in vain. They went to Safdarjung Hospital in search of accused. They came to the gate of Safdarjung Hospital and suddenly accused found present at bus stop, Ring Road. They were having the photographs of the accused. The accused was apprehended and brought to PS and handed over to Inspector Ashok Kumar who interrogated and arrested him. Personal search and arrest memo Ex. PW14/A and B State v. Manoj Kumar SC 2663 of 2016 . Page No. 14/38 were prepared. His disclosure statement Ex. PW14/C was recorded. 24 On 16.04.2016 he alongwith Inspector Ashok Kumar, SI Dilbagh and accused went to V.P. Singh Camp where Pappu met them who joined investigation. One Anil also met them who has also agreed to join the investigation. The accused took them to the house No. C68/2, V.P. Singh Camp. The jhuggi was found locked. The accused has broken the lock of the jhuggi. The accused has taken out one mobile phone of make Lava and handed over to IO. The mobile phone was seized in a pullanda with seal AK and taken into possession vide memo Ex. PW4/A. They went to import area, ICD Container Depot where weapon was searched but in vain. They went to the house of inlaws of the accused at J2B, Gupta Colony. The accused took them to a room and got recovered one blue colour jeans pant and one black colour shirt from one bag and told that he was wearing the clothes at the time of incident. The clothes were sealed in a pullanda with seal AK and taken into possession vide memo Ex. PW14/D. The case property was deposited in the malkhana. He has identified mobile phone Ex. P1. One pant having faint brown stain marks and one shirt with brown stain marks State v. Manoj Kumar SC 2663 of 2016 . Page No. 15/38 Ex.PX1 and PX2. During cross examination he stated that he has seen the photographs of the accused in the PS. Pappu and Anil met them on way to the jhuggi of accused. Accused has broken the lock of the jhuggi with hammer. The mobile phone was found under the bed. The mobile phone was having sim card. They went to ICD Depot from V.P. Singh Camp. There are three rooms in the house of inlaws of the accused. Public persons were requested to join but none of them agreed to join them. The suggestion is denied that accused has not given any disclosure statement or Anil and Pappu are planted witnesses or clothes were not recovered at the instance or from the possession of accused or accused did not tell that he was wearing the clothes at the time of incident or recovery is planted on the accused.
25 PW15 HC Kamla Prasad stated that during intervening night of 29/30.03.2016 he was on emergency duty from 8pm to 8am. He alongwith SI Sabab Alam was on patrol duty at the out gate of ICD where Ct. Nahar Singh handed over DD No.4A to SI Sabab Alam. They went to AIIMS Trauma Centre where brother of the deceased met them who identified the dead body of the deceased. State v. Manoj Kumar SC 2663 of 2016 . Page No. 16/38 No eye witness was found in the hospital. They came back to ICD Security Zone where truck trolla No. HR38V0986 was found parked. The cabin of the driver was inspected. Blood was found inside and outside the window near driver seat. IO prepared the rukka and handed over to him for registration of case upon which he went to PS for registration of FIR and came back with the FIR and original rukka. No eye witness was found on the spot. Crime team inspected the scene and lifted various exhibits. The photographs were taken from various angles. IO has lifted blood stained hair struck in the raxine after cutting the same. It was kept in a plastic box and wrapped with doctor tape and sealed in a pullanda with seal AK and taken into possession vide memo Ex. PW15/A. The blood was lifted from inside, outside and the driver gate and also from the truck and kept in tubes and sealed them with doctor tape and taken into possession vide memo Ex. PW15/B. Three buds of biri from near the driver seat were lifted and kept in a plastic dibbi with doctor tape and sealed with seal AK and taken into possession vide memo Ex. PW15/C. One fired bullet was taken from the roof above the driver seat which was kept in a plastic dibbi and sealed with doctor State v. Manoj Kumar SC 2663 of 2016 . Page No. 17/38 tape in a pullanda with seal AK and taken into possession vide Fard Ex. PW15/D. Two tshirts and pair of blood stained shoes from the cabin of truck were lifted and sealed in pullandas with seal AK and taken into possession vide memos Ex.PW15/E and F. The truck was taken into possession vide memo Ex. PW15/G. ' 26 Naseem and Baccha Singh were present whose statements were recorded. They came back to PS and deposited the case property in malkhana. He alongwith IO and SI Sabab Alam went to AIIMS trauma Centre where postmortem was got conducted. The dead body after postmortem was handed over to his brother Bijendra. The sealed pullandas and sample seals were handed over by the staff of the hospital to the IO which were taken into possession vide memo Ex. PW15/H. They came to PS and deposited the case property in the malkhana. He has identified one fired bullet Ex.P1, one small raxine piece of green colour of fired bullet Ex.P2, three biri buds Ex.P3, a pair of shoes Ex.P4, tshirt Ex.P6 and 7 and photographs Ex.P8 to 11 of the truck. The truck is on supardari. During cross examination he stated that there was no blood mark on the buds of biri. He does not know whether there was State v. Manoj Kumar SC 2663 of 2016 . Page No. 18/38 any blood marks on fired bullet, shoes and tshirt. No official from BSF was present on the spot. He does not know if CCTV is installed at ICD. 1015 minutes were taken to register the FIR. The exhibits were lifted by crime team officials. No eye witness was found on the spot. The buds of biri were lying under the driver seat. The suggestion is denied that he has not joined the investigation or seizure memos were prepared in PS or no exhibit was lifted from the spot.
27 PW16 Tayyab Hussain stated that he is supervisor in SB Transport, Okhla PhaseII, New Delhi. On 10.05.2016 he went to PS, PP Pur and produced photocopy of RC Ex. PA (attested copy is PD), fitness certificate Ex. PB and Insurance Ex. PE of truck trolla No. HR38V0986 which were taken into possession vide memo Ex. PW16/A. He has informed the IO that deceased and accused are drivers in their company whereas Naseem and Baccha Singh are supervisors. They were working in the night shift. He has taken the vehicle on supardari by executing supardarinama Ex. PW16/B. Ex. PC is the copy of his election card and Ex.PW16/C is the authorization letter issued by the company in his favour. During State v. Manoj Kumar SC 2663 of 2016 . Page No. 19/38 cross examination he stated that BSF officials remained posted at ICD Tughlakabad. CCTV is also installed at ICD Tughlakabad. 28 PW17 Baccha Singh stated that he alongwith Naseem is supervisor in SB Transport Company. Accused and deceased were working as drivers in their company who used to reside at V.P Singh Camp, Tughlakabad. On 29.03.2016 at about 1111.30 pm he went to ICD, Tughlakabad where he saw traffic jam and came to know that one driver of truck trolla is lying injured. He went there and saw that deceased is lying in an injured condition in the cabin of truck trolla. He called supervisor Naseem. Ashu was taken to hospital in an ambulance where he was admitted as brought dead. During cross examination he stated that he did not see if any articles were lying in the cabin as many persons were present there and their main concern was to shift the injured to hospital. He alongwith many persons including drivers have taken out the deceased from the cabin. No blood mark came to his clothes when deceased was taken out of the cabin. CCTV cameras are installed near the spot. BSF officials remained post at ICD, Tughlakabad.
29 PW18 Jagminder Singh stated that he is site Incharge, State v. Manoj Kumar SC 2663 of 2016 . Page No. 20/38 SB Transport Company, Tughlakabad. On 07.07.2016 he has handed over photocopies of attendance sheet, biodata form of deceased, Manoj, Mohd. Raju, Baccha Singh, original attendance sheet dated 29.03.2016 Ex.PW18/A, photocopy of the bill No. M 8506001788 Ex. PW18/B to the police which were taken into possession vide memo Ex. PW18/C. The original attendance sheet, biodata form of deceased, accused, Mohd. Raju, Baccha Singh are Ex. PW18/D to H. During cross examination he stated that CCTV camera is installed at the gate of ICD, Tughlakabad. The entry and exit are permitted from gate No.1, ICD, Tughlakabad where CISF guard remained posted. He has not brought any authority letter from the office regarding his employment.
30 PW19 Dr. Rajesh Kumar stated that on 30.03.2016 he has conducted the postmortem on the body of deceased. The cause of death was coma due to cranio cerebral injury caused by firearm. The injury was antemortem in nature. The time since death was 3/4th of the day. The blood stained clothes, blood in gauze, hair sample from the entry wounds, gunshot residue, swab from the site of entry wound were sealed with the seal of department and handed State v. Manoj Kumar SC 2663 of 2016 . Page No. 21/38 over to the police alongwith sample seal. His detailed report is Ex. PW19/A. 31 PW20 SI Sabab Alam has corroborated the version of PW15. The identity and existence of case property are not disputed. During cross examination he stated that he does not remember the sequence in which the exhibits were lifted. There was no blood stain on the seized biris buds. BSF guard remained posted at the gate of ICD, Tughlakabad but no BSF guard was called to join the investigation. There are several CCTV installations inside the ICD, Tughlakabad but no one was near the spot. The suggestion is denied that he has not joined the investigation or exhibits were not lifted in his presence.
32 PW21 Dr. Rupesh Kumar stated that on 30.03.2016 he was on duty. At 12.35 am, one patient Hashu was brought by supervisor with alleged unknown history. He examined the patient and declared him brought dead. Two injuries were noticed in his body. He has prepared MLC Ex. PW21/A. 33 PW22 SI Dilbagh Singh (Retd) has corroborated the version of PW14 HC Sarvan and identified the case property i.e. State v. Manoj Kumar SC 2663 of 2016 . Page No. 22/38 mobile phone of make Lava with two sim cards Ex. P1, one pant with faint brownish stains Ex. PX1 and one shirt with brown stains Ex.PX2. During cross examination the suggestion is denied that mobile phone and cloth were not got recovered by the accused or Pappu and Anil are planted witnesses or recovery is planted on the accused. They went on foot to the jhuggi of accused. Pappu and Anil met them near the jhuggi of accused. The lock of the jhuggi was opened with the help of hammer. He does not remember whether broken lock was taken into possession. The mobile phone was recovered from the slab. No one from the neighbourhood was associated at the place where clothes were recovered. The suggestion is denied that he is deposing falsely. 34 PW23 Inspector Ashok Kumar is IO of the case. He has corroborated the version of PW14, 15, 22 and further added that he has prepared site plan Ex. PW23/A at the instance of Naseem. He has identified the case property i.e. mobile phone of make Lava Ex.P1, one pant with faint brown stains Ex.PX1, Shirt with brownish stains Ex.PX2. One fired bullet Ex.P1, one small piece of raxine Ex.P2, three pieces of biri buds Ex.P3, pair of shoes Ex.P4, tshirt of State v. Manoj Kumar SC 2663 of 2016 . Page No. 23/38 black and yellow colour Ex.P6 and P7, photographs Ex.P8 to 11 of the truck in question.
35 During cross examination he stated that he has prepared the site plan without scale. He does not remember whether any blood stain was found on the biri buds. The raxine from the roof of driver cabin was cut by the crime team officials. The suggestion is denied that no biri bud was recovered from the truck trolla. SI Dilbagh has produced the accused at about 5.306.00 pm. who was thereafter interrogated. They went to the jhuggi of accused by government gypsy. He requested nearby residents of the jhuggi to join them and thereafter Pappu and Anil agreed to join them. Accused has produced Lave mobile phone from one corner of the inner room hidden under the bed. He does not remember that location chart of the mobile phones of the accused and deceased were taken by him. The suggestion is denied that no mobile phone was recovered at the instance of the accused or mobile phone is planted on the accused. CCTV camera is installed at the main gate of ICD, Tughlakabad where CISF personnel are posted on duty. CCTV footage was not giving clear picture so it was not seized. Bag was State v. Manoj Kumar SC 2663 of 2016 . Page No. 24/38 not seized from the house of the inlaws of the accused. The suggestion is denied that accused did not tell that he was wearing these clothes at the time of incident or clothes do not belong to accused or the investigation was not conducted in the proper manner. 36 PW24 R Eniyavan stated that on 30.11.2016 two sealed parcels were received in the office which were assigned to him for ballistic examination. The seals were tallied with the specimen seal as per forwarding letter and found intact. Cotton swab from entry wound of the deceased was taken out and marked as WS1. Control cotton swab of the accused was taken out from other parcel which is Ex.C1. The analysis was done on atomic absorption spectrometer. It was found that cotton swab WS1 contain firearm discharge residue. His detailed report is Ex. PW24/A. 37 PW25 Ms. Sunita Gupta, Sr. Scientific Officer stated that on 20.06.2016, 16 sealed parcels were received in the office of Director, FSL which were assigned to her. The parcels were sealed. The seals were tallied with the sample seals on the forwarding letter which were found intact. The DNA analysis was performed on exhibits 2, 4, 5, 6, 7a, 7b, 8, 9a, 9b, 11, 12, 13a, 13b, 13d, 13e and State v. Manoj Kumar SC 2663 of 2016 . Page No. 25/38
14. The DNA profile is sufficient to conclude that DNA profile generated from Ex.12 is similar to DNA profile of Exhibits 4, 5, 6, 7a, 7b, 8, 9a, 9b, 11, 12, 13a, 13b, 13d, 13e.
38 The DNA profile generated from Ex.14 is similar to DNA profile generated from Ex.2. The remnants were sealed with the seal of SG FSL DELHI. Her report is Ex. PW25/A. 39 Ld. Addl. PP for the State submitted that accused and deceased were working as drivers in the same company who were closed friends. He further submitted that deceased was having illicit relations with the wife of the accused and this fact led to the murder of the deceased. He further submitted that mobile phone of the deceased and clothes of the accused with blood stains of deceased were recovered at the instance of the accused. He further submitted that biri buds of the accused were recovered from the truck in question and saliva on the biri buds matched with the blood of the deceased as well as blood of the deceased on the clothes of the accused. He further submitted that recovery has been duly proved. He further submitted that accused has a motive to commit the murder. He further submitted that entire evidence on file show that State v. Manoj Kumar SC 2663 of 2016 . Page No. 26/38 accused has committed the murder of the deceased Ashu. 40 Ld. Defence Counsel contended that there is no evidence that accused was last seen with the company of the deceased. He further submitted that there is no evidence on record that deceased has any relations with the wife of the accused. He further submitted that there is no evidence on record that the mobile phone allegedly recovered from the possession of the accused belongs to the deceased. He further submitted that it is highly improbable that a person will keep blood stained clothes in his house that too in the house of his inlaws. He further submitted that biri buds can be planted and it is not such kind of evidence which cannot be planted He further submitted that there is no evidence that truck trolla in question remained in exclusive possession of the accused. He further submitted that evidence on the record is not sufficient to base conviction of the accused on the basis of circumstantial evidence.
41 Heard and perused the record.
42 The case relates to the circumstantial evidence so it would be appropriate to recapitulate the factors to be taken into State v. Manoj Kumar SC 2663 of 2016 . Page No. 27/38 consideration in such cases as explained by Hon'ble Apex Court in Anjan Kumar Sharma Vs. State of Assam (2017) 14 SCC 359 :
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not and 'may be' established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature of tendency;
(4) They should exclude every possible hypothesis except the one to be provided; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda v. State of Maharashra (1984) 4 SCC 116; M G Agarwal v. State of Maharashtra AIR 1963 SC 200)." State v. Manoj Kumar SC 2663 of 2016 . Page No. 28/38
43 The principles with regard to appreciation of circumstantial evidence have also been explained in Gagan Kanojia Vs. State of Punjab (2016) 13 SCC 516.
44 In the cases based upon circumstantial evidence settled law is that circumstances from which the conclusion of the guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot, in any manner established guilt of accused beyond all reasonable doubt. 45 The prosecution has pointed out various circumstantial evidence against the accused.
46 The prosecution has come out with a theory that deceased was having illicit relations with the wife of the accused and this can be a motive to commit murder. To my mind, the prosecution has failed to prove this fact.
State v. Manoj Kumar SC 2663 of 2016 . Page No. 29/38 47 PW1 & 2 are brothers of the deceased. The testimony of PW1 shows that he has come to know about the illicit relations of deceased with wife of the accused on the day of incident. His cross examination shows that he does not know if wife of the accused has been residing in her parental house for 2 ½ years prior to the incident. He has not seen his brother disturbed. His testimony does not advance the theory of the prosecution. His testimony nowhere shows that how he has come to know about the illicit relations of the deceased with the wife of the accused. He has not seen the wife of the accused. He does not know where the wife of accused is residing. He has never seen the deceased with the wife of the accused. The accused has never complaint to him about the alleged relations. His testimony nowhere advances the case of the prosecution.
48 PW2 has met the police on the day of incident in the hospital. He has nowhere disclosed to the police on that day that deceased was having illicit relations with wife of the accused. No explanation is on record from the prosecution why this fact was not disclosed on that day. His testimony further shows that on 29.3.2016 State v. Manoj Kumar SC 2663 of 2016 . Page No. 30/38 he has received a call from the deceased that he had a quarrel with the accused on the issue of alleged relations who has threatened to kill him. This part of his testimony does not inspire confidence. He has not disclosed this fact to his brother i.e. PW1 or to the police on the very same day. His call detailed record is not placed on record to show that he has received any call from the deceased on that day. His statement u/s 161 CrPC has been recorded on 10.7.2016 i.e. more than three months after the incident. There is no explanation from the prosecution why his statement was recorded after such a gap. Moreover, the facts narrated in the statement u/s 161 CrPC are nowhere deposed by him in the court. To my mind, the testimony of PW2 to this effect does not inspire confidence and the same is not relied upon.
49 The testimony of PW4 is hearsay to this effect. He has nowhere deposed that who has told him about the relations of deceased with wife of the accused. His testimony nowhere advances the theory of illicit relations of the deceased with the wife of the accused. The prosecution has failed to establish the motive to commit the offence by the accused.
State v. Manoj Kumar SC 2663 of 2016 . Page No. 31/38 50 The prosecution has placed heavy reliance on the recovery of mobile phone of make LAVA at the instance of the accused.
51 PW4 & 5 are independent witnesses. PW14, 22 and 23 are the police officials. All of them are the witnesses to the recovery of mobile phone at the instance of the accused.
52 Their testimony to the recovery of mobile phone does not inspire confidence. Their testimony shows that mobile phone in question was recovered from the jhuggi of the accused. The testimony of PW4 shows that lock was broken by some person accompanying the police but it was not broken in his presence. The testimony of PW5 and 14 shows that the lock was broken by the accused. The testimony of PW22 shows that lock was opened with the help of hammer. The testimony of these witnesses to this effect is not consistent. Moreover, broken lock is not taken into possession by the police. The lock should have been taken into possession in case the jhuggi was locked. There is no explanation why the lock was not taken into possession which calls for an adverse inference against the prosecution.
State v. Manoj Kumar SC 2663 of 2016 . Page No. 32/38 53 The testimony of PW4 shows that mobile phone was lying on the floor behind the door. The testimony of PW5 shows that mobile phone was lying on the floor in one room. The testimony of PW14 shows that accused has taken out one mobile phone from under the bed. The testimony of PW22 shows that mobile phone was recovered from the slab. The testimony of PW23 shows that accused has produced the mobile phone from one corner of the room hidden under the bed. All these PWs have given different version about the place from where the mobile phone was allegedly recovered. Their testimony is not consistent which creates a doubt about the recovery of mobile phone at the instance of the accused.
54 The recovery memo Ex. PW4/A shows that there were two SIM cards in the mobile phone. Their numbers are reflected in the seizure memo. The prosecution could have taken the CAF, location and call detail record to show that mobile phone in question belongs to the deceased who used the SIM numbers. There is no explanation on record from the prosecution why CAF and CDRs are not placed and proved on record. This calls for an adverse inference against the prosecution.
55 The testimony of PW4 & 5 shows that they have seen the State v. Manoj Kumar SC 2663 of 2016 . Page No. 33/38 mobile phone of make LAVA with deceased on many occasions so this phone belongs to the deceased. Their testimony to this effect does not inspire confidence. The mobile phone of a particular brand and model looks alike. There is nothing in the testimony of PW4 & 5 that there was any specific mark of identification on the mobile phone or there was any particular display picture of deceased or his family members in the mobile phone from which it can be said that this mobile phone belongs to the deceased. The testimony of PW4 & 5 to this effect does not inspire confidence. The prosecution has failed to show that the recovered mobile phone belongs to the deceased.
56 The prosecution has also placed heavy reliance on the recovery of clothes of the accused with blood stains of the deceased. 57 PW14, 22 and 23 are the witnesses to the recovery of the clothes of the accused with blood stains of deceased from the house of inlaws of accused. Their testimony shows that on 16.4.2016 accused has taken them to the house of his inlaws situated at J2B, Gupta Colony, New Delhi. The accused took them to a room and got recovered one blue colour jeans pant and one black colour shirt from the bag and told that he was wearing these clothes at the time of incident. Ex. PX1 is the pant and Ex. PX2 is the shirt. Both of them contain faint brown colour stains. State v. Manoj Kumar SC 2663 of 2016 . Page No. 34/38 The testimony of PW 25 shows that DNA analysis on pant and shirt containing faint brownish stains is sufficient to conclude that it is similar to the DNA profile generated from Ex. 12 i.e. brown colour blood stained gauze cloth piece of deceased.
58 The recovery does not inspire confidence. The prosecution has not examined any person to show that accused used to wear these clothes or these clothes belong to the deceased. Further, the incident has allegedly taken place on 30.03.2016. On 16.04.2016 the recovery has been effected. It does not appeal to common sense that a person after allegedly committing a murder will keep the blood stained clothes in the house of his inlaws. A person can throw away his clothes at any place instead of keeping them in the house of his inlaws. Further, the prosecution has failed to explain why any family member of the inlaws of the accused was not taken or cited as a witness at the time of the recovery. Moreover, it is not expected of an accused that he will keep the clothes with him even after so many days of the occurrence. There is doubt about the recovery of the clothes at the instance of the accused from the house of his inlaws. Support is drawn from Crl. Appeal No. 902/13 titled as "State of NCT of Delhi v. Amit Sharma & Ors" decided on 4.7.2018 by our own Hon'ble High Court. State v. Manoj Kumar SC 2663 of 2016 . Page No. 35/38 59 The prosecution has also placed reliance on the recovery of biri buds. The prosecution has also placed reliance FSL report Ex. PW25/A which shows that DNA analysis on the biri buds i.e. Ex.2 is sufficient to conclude that DNA profile generated from the source of Ex. 12 i.e. brownish colour stain gauze cloth piece of deceased is similar to the DNA profile generated from the source of exhibits pant and shirt of the accused containing blood stains i.e. 7a and 7b as well as with the pant, tshirt, pair of socks of the deceased. The prosecution cannot draw much support from this circumstance. It has nowhere come in evidence that truck trolla in question, from which biri buds were recovered, was in the exclusive possession of the accused and keys used to be remain with him. There is no evidence on record that these biri buds are of particular brand. It is not a such kind of evidence which cannot be manipulated. The biri buds can be obtained from the accused at any time during the course of investigation. The recovery of biri buds is not a strong circumstantial evidence to nail the accused. 60 The prosecution has placed reliance on the testimony of PW4 to advance the theory of last seen of the deceased with the State v. Manoj Kumar SC 2663 of 2016 . Page No. 36/38 accused. The testimony of PW4 shows that on 29.03.2016 he has seen accused and deceased while coming inside the ICD when he was going out of ICD Depot.
61 This part of his testimony does not inspire confidence. No such fact finds reflection in his statement U/s 161CrPC recorded on 16.04.2016 by the police. He has improved his version. No such fact is deposed by PW23 Inspector Ashok Kumar. PW3 would have deposed this fact in case this fact was disclosed to him by PW4. Further, the attendance sheet Ex. PW18/D shows that accused was absent from duty on 29.03.2016. No other PW has deposed that they have seen the deceased and accused together on the day of incident in the truck trolla or near the truck trolla. It has come in the testimony of PWs that CCTV is installed at the gate, ICD Tughlakabad but no footage was taken to show that deceased and accused were together. The evidence of last seen does not stand proved from the testimony of PW4. There is no evidence of last seen theory on record.
62 The inference of the guilt against the accused can be drawn when all the incriminating evidence is incompatible with the State v. Manoj Kumar SC 2663 of 2016 . Page No. 37/38 innocence of the accused. The circumstances, from which an inference as to the guilt is drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the commission of the offence. It is not possible to hold that accused, on the basis of such slander evidence, has committed the offence in question. The evidence on the record is not enough to base the conviction of the accused.
63 Hence, I have no hesitation to hold that the prosecution has failed to prove the case against the accused beyond shadow of reasonable doubt. The accused is acquitted of the offence charged. 64 The copy of the judgment be sent to DLSA, SED, New Delhi for the grant of compensation to the family members of the deceased in accordance with the Victim Compensation Scheme. 65 File be consigned to record room after completion of all formalities.
announced in the open court on 19th December, 2019 (SURESH KUMAR GUPTA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi State v. Manoj Kumar SC 2663 of 2016 . Page No. 38/38