Delhi District Court
State vs Nazim on 9 December, 2024
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 44649/2015
CNR No. DLNE01-000218-2012
FIR No. 391/2011
PS Khajuri Khas
U/s 302/397/411/120-B/201 of IPC, 1860.
STATE VERSUS NAZIM & ANR.
Date of Committal : 07.03.2012
Date of Arguments : 25.11.2024
Date of Judgment : 09.12.2024
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 5
4. Plea of the Accused Person 32
5. Submissions made on behalf of the State 32
6. Submissions made on behalf of the Accused 34
Person
7. Relevant Law & the Case Laws 40
8. Appreciation of Evidence 49
9. Conclusion & Findings 71
(ATUL AHLAWAT)
ASJ (FTC)/North- Digitally
signed by
East/KKD Courts/
ATUL
ATUL AHLAWAT
AHLAWAT Date:
Delhi/09.12.2024 2024.12.09
11:42:56
+0530
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 1/74
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
SC No. 44649/2015
CNR No. DLNE01-000218-2012
FIR No. 391/2011
PS Khajuri Khas
U/s 302/397/411/120-B/201 of IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE VERSUS NAZIM & ANR.
Brief details of the case
A) Case FIR No. : 391/2011
B) Charges framed under section : 302/120-B,
u/s 392/120-B, u/s
397 & u/s 411 of IPC,
1860 against accused
Nazim and u/s 120-B
R/w section 392/397,
u/s 302/120-B & u/s
411 IPC, 1860 against
accused Bittoo @
Dheeraj @ Bunty.
C) Name of the complainant/Informant : Pyari Devi
W/o Late Sh. Gopi
Chand Rawat,
R/o H.No. A-15/8,
Dayal Pur Extension,
Delhi. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:43:27
+0530
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 2/74
D) Name of the accused persons : (1) Nazim
S/o Raunaz
R/o H.No. 21/62, Gali
No.22, Rajeev Gandhi
Nagar, New
Mustafabad, Gokal
Puri, Delhi-94.
(2) Bittoo @
Dheeraj @ Bunty
S/o Late Sh. Ashok
Kumar
R/o H.No. 66, Sunita
ka makan, Near
Gurudwara, Munirka
Village, Delhi.
E) Plea of the accused persons : Not guilty
F) Final Order : Acquittal
G) Date of Order : 09.12.2024
JUDGMENT
(Pronounced on the 9th day of December, 2024) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 19.11.2011, when DD no. 48A, Ex. PW9/A was registered at PS Khajuri Khas at Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:43:37 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 3/74 +0530 05:58 AM, wherein it was recorded that " A Block gali no.15, Raunak ki dukan ke pass Dayal Pur main ek dead body padi hai" . The said call was made from mobile no. 8447037993 and same was marked to Inspector Vivekanand for further action.
2. The IO Inspector Vivekanand reached the spot alongwith SI Dhyan Singh, SI Amit Prakash, Ct. Tejvir and Ct. Sulekh and found that in gali no.11, A Block, Dayalpur, there were blood spots scattered in the street and they were informed that the injured was already removed to GTB hospital by his relatives.
3. Thereafter, the IO reached GTB Hospital and obtained the MLC no. A86635/11, Ex. PW20/A of the deceased Gopi Chand Rawat s/o Geet Singh Rawat and as per the said MLC, the patient was brought in casualty in unconscious stage by the attendant and his pulse was not palpable, BP was not recordable, the heart sound was not audible and the respiratory movement was found to be absent. The concerned doctor had opined the patient to be "brought dead".
4. The dead body was having stab wounds and it was being preserved for getting the postmortem conducted. Upon the basis of the said MLC, the commission of an offence punishable u/s 302 IPC, 1860 was found out and the present case FIR was registered at PS Khajuri Khas on 19.11.2011. After completing the investigation, IO filed the chargesheet before the Court of Ld. Metropolitan Magistrate u/s 302/201/411/120-B/397 IPC, 1860 against the accused persons. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:43:45 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 4/74
5. After compliance of section 207/208 Cr.PC, 1973, the case was committed by the Court of Ld. MM before this Court on 07.03.2012. Thereafter, the charges were framed by my Ld. Predecessor on 28.03.2012 302/120-B, u/s 392/120-B, u/s 397 & u/s 411 of IPC, 1860 against accused Nazim and u/s 120-B R/w sections 392/397, u/s 302/120-B & u/s 411 IPC, 1860 against accused Bittoo @ Dheeraj @ Bunty. The accused persons pleaded not guilty and they had claimed trial.
Prosecution Evidence:
6. To prove its case, the prosecution has examined 30 (Thirty) witnesses and out of the said witnesses, there are 10 public witnesses, 17 formal witnesses, 2 medical witness and 1 Investigating Officer:
7. Public Witnesses:-
(7.1.1) PW-1 is Pyari Devi and she is the wife of the deceased. She is not the ocular witness or last seen witness as per the case of the prosecution. She had deposed that she was married to the deceased Gopi Chand Rawat and there were 3 minor children born through their wedlock. At the time of his death, the deceased was employed with MCD and his office was situated in Rohini, Delhi and he used to leave home at about 08:00 AM and used to return about 07:00 PM, from his office. On 18.11.2011, her husband had left the house as usual and at Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:43:51 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 5/74 +0530 about 07:00 PM she received a phone call from him, whereby the deceased had informed her that he had to attend marriage of one Mehtab Singh at Ghonda, Delhi and would return late at night. PW1 waited for her husband till midnight, however, he had not returned by then.
(7.1.2) PW-1 Pyari Devi had further deposed that on 19.11.2011 at about 05:00 AM, someone knocked the door of her house and she found that 3 boys from their neighbourhood were present there and she was informed that her husband was lying at the corner of gali no.11, Dayalpur Extension, in unconscious condition. She left for the said spot and found her husband lying unconscious over the drain. She got nervous after seeing her husband in the said state and immediately rushed back home to call for help and reached back at the spot alongwith her tenants, Amit and Pankaj. Thereafter, they lifted her husband and brought him towards their home, however, they noticed blood stains on his pant and shirt. Her tenant Pankaj called the police on 100 number and arranged the TSR, through which her husband was shifted to GTB Hospital. Later on, she was informed by the tenant Pankaj that her husband was declared "brought dead" by the doctors. She further deposed that her husband used to carry a white coloured phone, whose make and number she did not knew and one brown (bhoora) coloured leather wallet. She had identified the black and brown coloured open wallet containing Rs. 70/- cash, Pancard and ID card of her husband. The same was collectively exhibited as Ex. P-3. She had further deposed that the said case property was already identified by her during the TIP proceedings before the Ld. MM.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:43:58
+0530
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 6/74
(7.1.3) PW-1 Pyari Devi had further correctly identified the mobile
phone Ex. P-1 and the box of the said mobile phone Ex. P-6. She also correctly identified the clothes that her husband was wearing at the time of his death. The pant with belt, one shirt, one T-shirt and one underwear, all having dark brown stains were exhibited as Ex. P-7 (colly).
(7.1.4) PW-1 Pyari Devi had further deposed during her cross examination conducted by Ld. Defense Counsel for accused Nazim that she was an illiterate and she could not tell the phone number from which she had received the telephonic call from her husband. She could not even tell her own mobile number on which she had received the said call from her husband. She categorically deposed that the police officials had asked her about the mobile numbers on which the said call was exchanged, however, since she was an illiterate, she could not inform the police officials about the same.
(7.1.5) PW-1 Pyari Devi had further deposed during her cross examination conducted by Ld. Defense Counsel for accused Nazim that she could not tell the names of the three boys who had informed her about her husband lying in unconscious condition and she could not even tell the distance between her house and the place where her husband was lying. She further deposed that the said distance was around 10-15 minutes by foot. Her husband was removed to the hospital by her tenant Pankaj at about 05.30 AM and by that time the PCR van had not arrived. She further deposed that she had not accompanied her husband to the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:44:07 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 7/74 +0530 hospital.
(7.1.6) PW-1 Pyari Devi had further deposed during her cross examination conducted by Ld. Defense Counsel for accused Nazim that her husband used to carry a purse and a mobile phone, whenever he used to go out from their house. She had categorically deposed that she had not given the bill of the mobile phone of the deceased to the police officials. She categorically deposed that it was within her knowledge at the time of recording of her statement, Ex. PW1/A that when her husband had left the house on 18.11.2011, he was having a mobile phone and a purse. She further deposed that she had categorically told the IO that when her husband had left the house on that day, he was carrying a white coloured phone and a brown coloured purse. She was confronted with her statement, Ex. PW1/A, wherein, it was not so recorded.
(7.1.7) PW-1 Pyari Devi during her cross examination conducted by Ld. Defense Counsel for accused Nazim had categorically deposed that she had identified the mobile phone and purse of her husband, at the time when she was called to the PS for the first time. She further went on to depose that she had identified her husband's purse during judicial TIP before the Ld. MM, however, no mobile phone of her husband was shown to her in any TIP proceedings.
(7.1.8) PW-1 Pyari Devi during her cross examination conducted by Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty had categorically deposed that she did not remember the date on which she Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:44:12 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 8/74 had visited the PS and when the mobile phone and purse of her husband were shown to her at the PS. She further deposed that at the time of the incident, one Amit and one Pankaj were residing with their families in their house as tenants. She further deposed that her deceased husband had two younger brothers namely Bhag Singh, who was a resident of Karawal Nagar and Amar Chand, who was residing in Burari at the time of the death of her husband. She further deposed that she had informed her devar Amar Chand about the death of her husband over a telephonic call, however, she could not tell the telephone number of the said devar of hers.
(7.2.1) PW-2 is Bhag Singh Rawat and he is the younger brother of the deceased. He is also not an ocular witness or the last seen witness for the case of the prosecution. Through his testimony the prosecution has tried to prove certain documents such as the dead body identification memo, Ex. PW2/A, the seizure memo, Ex. PW2/B vide which the wrist watch of the deceased, which was found during the inquest proceedings was handed over to his younger brother Amar Singh.
(7.2.2) PW-2 Bhag Singh Rawat had further deposed that when he saw the dead body of the deceased, it was having a striped shirt, pant and a sandle on it. He further deposed that at the time of his death, his brother was having a white coloured dual sim mobile phone make Zen-72.
(7.2.3) PW-2 Bhag Singh Rawat had further deposed that on
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 9/74 2024.12.09
11:44:17
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22.11.2011, at about 03:00-03:30 PM, while he was present at the house of his deceased brother, four police officials including IO Inspector Vivekanand, SI Amit Prakash, Ct. Tejvir and Ct. Sulekh came there and he spoke to the said police officials. Thereafter, the IO instructed him to join the investigation and he became ready. Thereafter, they proceeded towards Sadatpur Extension, Karawal Nagar, Delhi upon the information received from a secret informer and accused Bittoo @ Dheeraj @ Bunty was arrested upon the pointing out of the said secret informer. He further deposed that the IO had asked 5-6 public persons to join the investigation, however, none of them joined citing their inabilities.
Through his testimony the arrest memo, Ex. PW2/C and personal search memo, Ex. PW2/D were brought on record. He further categorically deposed that during the cursory search of accused Bittoo @ Dheeraj @ Bunty, one mobile phone was recovered from the left side pocket of his wearing pants and the said mobile phone belonged to his deceased brother. The said mobile phone, Ex. P-1 was sealed by the IO vide seizure memo, Ex. PW2/E and in his presence accused Bittoo @ Dheeraj @ Bunty made his disclosure regarding his involvement in the present case and the same was recorded by the IO vide statement, Ex. PW2/F. (7.2.4) PW-2 Bhag Singh Rawat had further deposed that in pursuance of the disclosure statement of accused Bittoo @ Dheeraj @ Bunty, the said accused led them to the house of his friend, co-accused Nazim and he was also arrested by the IO vide arrest memo, Ex. PW2/G and his personal search was conducted vide memo, Ex. PW2/H. During his cursory search one mobile phone with Airtel connection, Ex. P-2 was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 10/74 11:44:23 +0530 recovered by the IO. In his presence accused Nazim made his disclosure regarding his involvement in the present case and the same was recorded by the IO vide statement, Ex. PW2/I. (7.2.5) PW-2 Bhag Singh Rawat had further deposed that in pursuance of the disclosure statement of accused Nazim, the said accused led them to his house and got recovered one wallet, Ex. P-3 (colly), which belonged to the deceased and was found containing Rs.
70/- cash, pancard and ID card of the deceased. He further deposed that accused Nazim also got recovered his yellow coloured shirt and blue jeans, Ex. P-5 (colly), from his house and the said clothes were being worn by accused Nazim at the time of the offence in question and they were having some blood stains on them.
(7.2.6) PW-2 Bhag Singh Rawat had further deposed that accused Nazim also got recovered on chhura, Ex.P-8 from the 1st floor of his house. The said chhura was having a small dent towards its edge and it was made of iron. The IO prepared the sketch of the said chhura, Ex. PW2/J in his presence.
(7.2.7) PW-2 Bhag Singh Rawat had further deposed that both the accused persons led the police party and him to the place of occurrence, i.e. Gali no. 11, Dayalpur Extension and at their instance the IO prepared the pointing out memo Ex. PW2/M in his presence.
(7.2.8) PW-2 Bhag Singh Rawat had further deposed that accused
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:44:28
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 11/74 +0530
Bittoo @ Dheeraj @ Bunty then led them to Sarvada School, where he used to park his school rickshaw. From the 1st/2nd floor verandah of the said school building, he produced one blood stained pant and t-shirt, Ex. P-4(colly) and the same was seized by the IO in his presence.
(7.2.9) PW-2 Bhag Singh Rawat was subjected to cross examination by Ld. Addl. PP for the State, since he was suppressing the truth about the mobile phone recovered from accused Nazim. However, the suggestions put by Ld. Addl. PP for the State did not pertain to the mobile phone, Ex. P-2, i.e. the mobile phone recovered through accused Nazim, instead the suggestion qua mobile phone Ex. P-1 (allegedly belonging to the deceased) was put to the witness. The PW2 then admitted the suggestion that the mobile phone recovered through accused Bittoo @ Dheeraj @ Bunty was without sim cards.
(7.2.10) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Amicus Curiae for the accused Bittoo @ Dheeraj @ Bunty had deposed that his brother Gopi Chand (deceased) had not told him about the make of the mobile phone which his brother was using and nor did was he told as to the place from where the deceased had purchased the same. He further categorically deposed that he had never used the mobile phone of the deceased and the IMEI no. of the said phone was disclosed to him by the family members of the deceased and the same was discerned from the bill of purchase of the said mobile phone and its box.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:44:37
+0530
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 12/74 (7.2.11) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Amicus Curiae for the accused Bittoo @ Dheeraj @ Bunty had deposed that the wrist watch belonging to his deceased brother was handed over to his younger brother Amar Singh in the hospital, by the police officials.
(7.2.12) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Amicus Curiae for the accused Bittoo @ Dheeraj @ Bunty had deposed qua him joining the investigation on 22.11.2011, when both the accused persons were arrested by the police and the recoveries were allegedly effected through them. He categorically deposed that he was present at the house of his deceased brother since the morning and the police officials had come there, however, they did not tell him anything and merely asked him to accompany them. He further deposed that when the police officials had arrested accused Bittoo @ Dheeraj @ Bunty from Sadatpur, he did not knew whether any documents were prepared by the IO after apprehending him. He further categorically deposed that public persons were present at that time, however, he did not knew if any public person was made to join the investigation or not.
(7.2.13) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Amicus Curiae for the accused Bittoo @ Dheeraj @ Bunty had deposed that at the time of arrest of accused Nazim, he had not seen if any written proceedings were conducted by the IO, however, he categorically deposed that no public persons were joined in the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:44:43 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 13/74 investigation and when the accused persons had allegedly pointed out the place of occurrence to them, no written proceedings were done by the IO in his presence.
(7.2.14) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Amicus Curiae for the accused Bittoo @ Dheeraj @ Bunty had deposed qua the recovery of the clothes being worn by accused Bittoo @ Dheeraj @ Bunty at the time of the incident that when they reached Sarvodya Public School, the gate of the school was opened and accused Bittoo @ Dheeraj @ Bunty got recovered his clothes from a room situated on the 2nd floor of the school building, however, he did not knew as to who was the occupier of the said room. He could not even say whether the said room was occupied by one person or two persons or whether the said room was locked or unlocked when the reached there. He further categorically deposed that no written proceedings were conducted in his presence by the police officials at that time. He further went on to depose that the clothes of accused Bittoo @ Dheeraj @ Bunty were found hanging in the verandah of the school and the said verandah was open and accessible to the public. He further deposed that the school was situated in a populated area, however, he did not know if anyone from the said area was called to join the investigation by the IO.
(7.2.15) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Counsel for accused Nazim had deposed that it was correct that in his statement recorded u/s 161 Cr.PC, on 20.11.2011, he had not informed the IO that his deceased brother was using the mobile Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:47:42 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 14/74 +0530 phone make Zen-72, and was carrying a purse. He was further confronted with his statement Ex. PW2/DA, wherein, he had told the IO that beat constables of their area, Ct. Tejvir and Ct. Sulekh came to the house of the deceased.
(7.2.16) PW-2 Bhag Singh Rawat during his cross examination conducted by Ld. Counsel for accused Nazim had deposed qua the arrest and recovery of accused Nazim by stating that he did not enter the room from where the recovery was effected, however, he saw the proceedings of recovery from the door. He did not remember as to the number of persons, who were present in the house of accused Nazim at that time, however, there was one lady present there. He did not know the number of rooms constructed on the ground floor or whether the IO had prepared the site plan of the said house. He deposed that the IO had prepared the documents there, however, he did not remember the contents of the said documents or whether he had put his signatures on the same or not. He also did not remember whether the said documents were prepared by the IO in his own handwriting or through some other subordinate officer of the IO.
(7.3.1) Through the testimony of PW-6 Adesh Sharma and PW-14 Santu @ Santosh, the prosecution has sought to prove the crucial link as to who had seen the deceased lying in the drain for the first time. Both of them are not ocular witnesses, since they had reached the place where the deceased was lying in the gali, after the assailants had already attacked him. As per the case of the prosecution, 3-4 boys were going to Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:47:49 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 15/74 +0530 gym situated at Karawal Nagar Road at around 05:00-06:00 AM on 19.11.2011 and when they were passing through gali no. 11, they saw that one person, who was resident of their locality was lying in the drain.
They initially thought that the said person was lying there due to being under the influence of liquor, therefore, they informed his wife and later on got to know about his name. Due to darkness, they had not seen any blood on the body of the said person, however, when his family members were taking him towards his house, they found that the blood was coming out from his clothes. PW-6 Adesh Sharma and PW-14 Santu @ Santosh were two of the said boys who had found the deceased lying in the drain situated in gali no.11 and they had deposed on the similar lines.
(7.4.1) Through the testimony of PW5 Ved Pal and PW26 Pankaj Kumar Singh, who were the neighbours of the deceased, the prosecution has sought to prove the link of their story qua who had shifted the deceased to the hospital. PW5 Ved Pal had deposed that at about 06:15- 06:30 AM, while he was present in his house, he heard the voice of the wife of the deceased and she was crying at that time. When he came out, he got to know that deceased Gopi was lying in the gali at the corner of their street. He went there and saw him lying and in the meantime someone had called the police and some tenants residing in the said gali took Gopi to the hospital in a TSR.
(7.4.2) It has come in the testimony of PW26 Pankaj Kumar Singh that at about 05:30-05:45 AM, while he was present inside his room, the wife of his landlord Gopi Chand Rawat, namely Pyari Devi came to his Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:47:58 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 16/74 +0530 room and told him that her husband was lying at the corner of gali no. 11 in unconscious stage. Thereafter, he alongwith another tenant namely Amit reached where their landlord Gopi Chand Rawat was lying in unconscious state. When he dragged him towards the light, he saw that blood was oozing out from the body and there was no response or movement from the side of the injured. Thereafter, he and Amit took Gopi Chand to the GTB Hospital in a TSR and the doctors declared him "brought dead". He further deposed that the call to the police on 100 number was made by him, prior to taking the injured to the hospital.
(7.4.3) During his cross examination conducted by Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty, PW26 Pankaj Kumar Singh had categorically deposed that he was not aware as to from which part of the body of the deceased, the blood was oozing out. He categorically further deposed that his own clothes did not get any blood stains in the process of taking the deceased to the hospital. He further categorically deposed that he had told the police in his call made on 100 number that one person is lying unconscious at the corner of gali no. 11. He was confronted with his earlier statement Ex. PW26/DX, where it was recorded that there was a quarrel which had taken place. He went on to voluntarily deposed that the said call at 100 number was made by him when the TSR driver had refused to take the injured to GTB Hospital.
(7.5.1) Through the testimonies of PW-13 Sampati Devi (bhabhi of the deceased) and PW-23 Mehtab Singh (friend of the deceased), the prosecution has sought to prove the timeline, prior to the death of the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:48:04 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 17/74 deceased and the said witnesses were amongst the last witnesses who had either seen or spoken with the deceased, prior to his dead body being found lying in the drain.
(7.5.2) PW-13 is Sampati Devi and she is the bhabhi of the deceased. She had deposed that deceased Gopi Chand Rawat was her devar and on the day when the deceased was found lying in the drain, he was speaking to her at about 01:00 AM through a telephonic call. She further deposed that she was in her native village at that time and the deceased was calling from Delhi and they were asking about their respective well being and when she asked the deceased as to why he was calling so late at night, she was informed that the deceased was coming back from a marriage function and he was going towards his house. Thereafter, his mobile phone went switched off.
(7.5.3) PW-23 is Mehtab Singh and he is the friend of the deceased. As per the prosecution story, on the night prior to the death of the deceased, deceased had gone to the house of PW23 Mehtab Singh and while coming back towards his house, during late hours, the alleged incident took place.
(7.5.4.) PW23 Mehtab Singh had deposed that on 18.11.2011,there was a party related to the marriage/ mudha ceremony of his son, at his home. He had invited the deceased for the said function and the deceased reached his house at about 07:00 PM and stayed there till about 01:30 to 02:00 AM on 19.11.2011. While the deceased remained at his house, he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:48:09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 18/74 +0530 had consumed liquor and also had dinner. While the deceased was leaving, PW23 requested him to take the vegetables in the morning and instead he should stay back the night at his house, however, the deceased left for his home at about 02:00 AM. Later on he was informed by the police officials that his friend Gopi Chand Rawat has been murdered.
(7.6.1) PW-15 is Mukesh Kumar and PW-16 is Sunder Singh. As per the prosecution story, accused Bittoo @ Dheeraj @ Bunty was using a mobile phone bearing no. 9873972670 at the time of the commission of the alleged offence. Since the accused persons was not having the address proof relating documents, he procured the said sim card by using the documents/ID proof of PW15 Mukesh Kumar and the said sim card was issued by PW16 Sunder Singh, who was running a mobile repair shop in Karawal Nagar.
(7.6.2) PW15 Mukesh Kumar had deposed that he used to drive a cab to ferry children to and fro from Sarvada Public School, Karawal Nagar. He further deposed that accused Bittoo @ Dheeraj @ Bunty was residing on the 2nd floor of the said school and the accused was driving the rickshaw of the said school. He further deposed that in the year 2011, accused Bittoo @ Dheeraj @ Bunty had requested him to provide him a sim card, since the accused was not have any ID proof of Delhi. Upon the request of the accused, he procured mobile sim with a number 9873973670 and handed over the same to accused Bittoo @ Dheeraj @ Bunty.
Digitally
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:48:16
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(7.6.3) PW16 Sunder Singh had deposed that he was running a
mobile repair shop on the main road near Hanuman Mandir, Karawal Nagar, Delhi. In the year 2011, he was also selling sim cards from the said shop. He went on to depose that he knew one Mukesh, who was the cab driver in the nearby school. He did not remember the exact date or month, however, he categorically deposed that Mukesh came to his shop and purchased a sim card after furnishing two photographs and a copy of his DL. He further categorically deposed that he did not knew accused Bittoo @ Dheeraj @ Bunty and he did not remember whether Mukesh had come to his shop alone or with someone else.
(7.7.1) PW10 is Beena Paliwal and she had deposed on behalf of her husband Sh. Lalit Paliwal, Manager of Sarvada Public School, Sadatpur Extension, Delhi. As per the case of the prosecution, accused Bittoo @ Dheeraj @ Bunty was working in the said school as the rickshaw driver, which was used by the children attending the said school. In her testimony, PW10 Beena Paliwal had categorically deposed that her husband was working as the Manager of the said school and she was not the Principal of the said school and one Mrs. Bisht was the Principal. She further deposed that she used to assist her husband in managing the work of the said school and they were having 3 branches in Sadatpur itself. She further went on to categorically depose that she did not knew anyone by the name of Bittoo @ Dheeraj @ Bunty. She deposed that one person used to work in their school, who used to ply rickshaw to ferry the students to the school, however, accused Bittoo @ Dheeraj @ Bunty, who was present in Court was not the said person. She Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:48:22 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 20/74 +0530 was declared hostile by the State and was subjected to rigorous cross examination by Ld. Addl. PP for the State, however, she denied all the suggestions on the line of the prosecution's case, being put to her.
8. Medical Witnesses:-
(8.1.1) PW-20 is Dr. Chhavi Sharma, who had deposed on behalf of Dr. Raj Kumar, who had attended the deceased after his Emergency Registration Card, Ex. PW20/B was prepared at GTB Hospital and his MLC Ex. PW20/A was prepared by Dr. Raj Kumar, JR, GTB Hospital. As per the said MLC, the patient was brought in the casualty in unconscious state by the attendant and upon examination it was found that "his pulse was not palpable, B.P. was not recordable, heart sound was not audible, respiratory movement was absent, pupil were bilaterally fixed & dilated & was not responding to light and the ECG was showing complete straight line".
(8.2.1) PW-7 is Dr. Neha Gupta and she had conducted the postmortem of the dead body of the deceased. Upon the postmortem examination, she prepared the detailed PM report, Ex. PW7/A. During the postmortem, it was noted by PW-7 that "Dead body of adult male, average built, was wrapped in white cotton sheet wearing brown pant, black belt, blue underwear, blue stripe shirt, yellow and black sweater. Rigormortis was well developed. Postmortem staining was present over back. Greenish discolouration was present over the abdomen".
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:48:29
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(8.2.2) In the Postmortem Report, Ex. PW7/A, following external
ante-mortem injuries were noticed:
1. Incised stab wound of size 3.3X0.2X5 CM present obliquely over upper left thigh, 15 CM below and 5 CM lateral to anterior superior iliac spine. The direction of the wound is upwards, forwards and medially. No major vessel cut.
2. Incised stab wound of size 3X0.2X3.5 present over left lateral chest, 20 CM below axilla and 20 CM from midline. The direction of the wound is downwards, backward and medially. No major vessel cut.
3. Incised stab wound of size of 3.5X0.2X5 CM present vertically over left buttock, 5 CM from midline and 21 CM below iliac crest. The direction of the wound is horizontally forwards. No major vessel cut.
4. Incised stab wound of size 3X0.2X5 CM present obliquely over left lateral chest, 20 CM from midline and 7 CM below left nipple. The direction of the wound is downwards, forwards and medially. No major vessel cut.
5. Incised stab wound of size 3.5X0.2X6.5 CM present horizontally over left chest, 12 CM from midline and 2 CM below left nipple. The direction of the wound is downwards, backwards and medially cutting the skin, subcutaneous tissues, muscles in the fourth intercostal space, pericardial sack on posterolateral aspect, left ventricle through and through and again cutting the pericardial sac over the anterior aspect near the apex. The pericardial sac and pleural cavity full of blood and blood clots.
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:48:35 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 22/74 (8.2.3) In the Postmortem Report, Ex. PW7/A, upon the internal examination it was found that all the organs were pale.
(8.2.4) PW-7 Dr. Neha Gupta had given the opinion as to the time of death as "Time since death was about one day".
(8.2.5) PW-7 Dr. Neha Gupta had given the opinion as to cause of death as "hemorrhagic shock as a result of ante-mortem injury to heart produced by sharp edged weapon. All injuries were ante-mortem in nature and produced by a sharp edged weapon".
(8.2.6) PW-7 Dr. Neha Gupta had further opined that "the injury No.5, was sufficient to cause death in ordinary course of nature". She had also opined that the weapon used for causing the injuries found upon the dead body of the deceased was caused by "a single edged sharp weapon".
(8.2.7) PW-7 Dr. Neha Gupta had deposed that after conducting the postmortem, she had handed over the clothes of the deceased, blood on the gauze of the deceased, in sealed condition to the police officials alongwith sample seal of the hospital.
9. Formal Witnesses:-
Judicial witnesses qua the TIP proceedings conducted during the investigaiton:-
(9.1.1) During the trial, the prosecution had sought to prove the TIP
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
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proceedings of the accused persons conducted before Dr. Savitri, the then Ld. MM, North East. It had come in the testimony of PW24 Dr. Savitri, Ld. ASJ, Shahdra, Karkardooma Courts, that the TIP proceedings were conducted by her after the application, Ex.PW24/A, moved by the IO was marked to her by the Ld. Link MM. Witness Ramesh Singh S/o Khadak Singh, who was called to identify accused Nazim and Bittoo @ Dheeraj @ Bunty, had failed to identify the accused Nazim during the said proceedings. However, accused Bittoo @ Dheeraj @ Bunty was correctly identified by witness Ramesh Singh S/o Khadak Singh, who was the last seen witness as per the case of the prosecution. The TIP proceedings qua accused Nazim and Bittoo @ Dheeraj @ Bunty was brought on record as Ex. PW24/B and Ex. PW24/C respectively.
(9.2.1) During the trial, the prosecution had sought to prove the TIP proceedings qua the robbed case properties, conducted before Sh. Ankur Jain, the then Ld. MM, North East. It had come in the testimony of PW22 Sh. Ankur Jain, Ld. ACMM, South West, Dwarka Courts, that the TIP proceedings were conducted by him after the application, Ex.PW22/B, moved by the IO was marked to him by Sh. Sonu Agnihotri, Ld. MM. Witness Pyari Devi, who was called to identify the case property i.e. one purse containing Rs. 70/- in cash, the I-card issued by MCD in the name of deceased Gopi Chand and one pancard had correctly identified the same to be the purse belonging to her deceased husband. The TIP proceedings were brought on record through Ex.
PW22/C.
Digitally
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:48:53
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Formal Police Witnesses:-
(9.3.1) Through the testimony of PW9 HC Ram Avtar, who was the
Duty Officer posted at PS Khajuri Khas, the prosecution has brought on record the DD entry no. 48A registered on 19.11.2011 at about 05:58 AM, after a call was received from PCR, North East that a dead body was found near the shop of Raunaq in gali no. 15, A-block, Dayalpur. The said DD entry was exhibited as Ex. PW9/A. (9.3.2) Through the testimony of PW9 HC Ram Avtar, the prosecution has brought on record the DD entry no. 50A registered on 19.11.2011 at about 06:21 AM, after a call was received regarding a quarrel which had taken place near David Model School, PTS, Wazirabad. The said DD entry was exhibited as Ex. PW9/B. (9.4.1) Through the testimony of PW-8 Duty Officer HC Ashwani, the prosecution has brought on record the FIR, Ex. PW8/A and the endorsement made on the rukka by PW8 as Ex.PW8/B. It had further come in the testimony of PW8 that he had recorded kayami vide DD no.
7-A and 9-A in the register and the said kayamis were exhibited as Ex.PW8/C. (9.5.1) Upon instructions of the IO, PW12 Ct. Chander Shekhar had collected the the PCR forms from the Police Head Quarters with respect to DD no. 48A and DD no. 50A.
Digitally
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:48:58
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(9.6.1) It had come in the testimony of PW11 ASI Hari Kishan, that
he had attended the PCR call, Ex. PW9/A and reached the spot and saw that crowd had gathered in gali no. 11. He met the wife of the deceased, who informed her that her husband had been stabbed and had been taken to the hospital.
(9.7.1) PW21 Ct. Manoj Kumar had deposed that upon receiving the PCR call, Ex. PW9/B, regarding the quarrel, he had also reached the spot in gali no. 11 and he was informed that one person had received stab injury and the said injured was already removed to GTB Hospital in a three wheeler by public persons. He also got to know that one other PCR call had been received prior to the said call.
(9.8.1) The crime team report, Ex. PW19/A was brought on record through the testimony of In-charge Mobile Crime Team, PW19 SI U. Balashankaram and he had deposed that on his instructions, IO with the help of his staff lifted the blood sample, earth control, plain earth control and sealed them in separate pullandas. He further deposed that he inspected the spot carefully, however, no weapon or chance prints were found there. He further deposed that his crime team photographer was not available on that day, since he was away on duty to PTS, Wazirabad. Thereafter, the IO arranged the private photographer and he prepared the spot inspection report and handed over the same to the IO.
(9.8.2) Through the testimony of PW17 Shambhu Dayal (private photographer), the prosecution has sought to prove the photographs of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:05 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 26/74 +0530 the crime scene which were exhibited as Ex. PW17/A-1 to Ex.PW17/A-6. He had deposed that on the instructions of the police officer, he took 5-6 photographs of the spot with blood on it, through his digital camera. He went back to his studio and after developing the said photographs, he handed over the same to the police officials. He categorically deposed that he had not handed over any chip, CD or pendrive to the police officials of PS Khajuri Khas qua the said photographs.
(9.9.1) The scaled site plan, Ex. PW4/A was brought on record through the testimony of the Droughtsman, PW4 Inspector Mukesh Kumar Jain.
(9.10.1) The copy of the register no. 19 and 21 containing relevant entries in the said registers were sought to be proved by the prosecution through the testimony of the MHCM PW18 HC Bijla Oran. The entry qua deposition of 3 boxes in sealed condition, containing blood sample of deceased, earth control and plain earth control alongwith the box of mobile phone recovered through accused Bittoo @ Dheeraj @ Bunty was exhibited as Ex. PW18/A. (9.10.2) PW18 HC Bijla Oran (MHCM) had further deposed that the viscera box alongwith the PM report was deposited in the Malkhana by the IO and he made the relevant entry Ex.PW18/B. The entry qua the deposit of the mobile phone and sim card was recovered from accused Nazim and the knife recovered at the behest of accused Nazim and the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:12 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 27/74 +0530 purse of the deceased was entered in the register no. 19, Ex. PW18/C. (9.10.3) PW18 HC Bijla Oran (MHCM) had further deposed that on 30.12.2011, he had sent the exhibits of the case to FSL Rohini through Ct. Chander Shekhar vide RC no. 42/21, however, the case property could not be deposited on that day and Ct. Chander Shekhar returned back the case property to him on 03.01.2012 and he had re-deposited the same. The said entry was made at point X on Ex. PW18/A. He had further deposed that on 04.01.2012, he had again sent the exhibits to FSL through Ct. Somvir vide RC no. 101/21, however, the case property could not be deposited on that day as well.
(9.10.4) PW18 HC Bijla Oran (MHCM) had further deposed that on 05.01.2012, he had yet again sent the exhibits to FSL through Ct. Sulekh vide RC no. 106/21 and it was finally deposited on that day. The entry with respect to the same was made at point Y on Ex. PW18/A. The copy of RC was exhibited as Ex. PW18/A-1 and the acknowledgment receipt was exhibited as Ex. PW18/A-2. He further deposed that on 01.08.2012, Ct. Chander Shekhar deposited the case property in 6 sealed envelop alongwith FSL results and he made the entry at point Z on Ex. PW18/A. (9.10.5) PW18 HC Bijla Oran (MHCM) had further deposed that on 30.12.2011, he had sent the exhibits of the case i.e. wooden viscera box of the deceased to FSL through Ct. Sonu vide RC no. 91/21 and it was deposited on that day. The entry with respect to the same was made at point X on Ex. PW18/B. The copy of RC was exhibited as Ex. PW18/D Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:17 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 28/74 +0530 and the acknowledgment receipt was exhibited as Ex. PW18/E. He further deposed that on 02.11.2012, Ct. Sulekh deposited the case property i.e. viscera box and on khakhi envelop containing the result received from FSL and he made the entry at point Y on Ex. PW18/B. Furthermore, the prosecution had examined PW3 Ct. Sonu Yadav, who had deposited the said viscera box at FSL Rohini.
(9.10.6) PW18 HC Bijla Oran (MHCM) had further deposed that on 30.12.2011, he had sent the exhibits of the case i.e. clothes of the deceased and one pullanda containing the weapon of the offence to FSL through Ct. Chander Shekhar vide RC no. 90/21 and it was deposited on that day. The entry with respect to the same was made at point X on Ex.
PW18/C. (9.11.1) The initial call made to the police vide DD no. 48A, Ex. PW9/A was marked to IO, PW30 Inspector Vivekanad and he alongwith PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir reached the spot and found that in gali no. 11, blood was spread on the road and they came to know that injured had already been removed to GTB Hospital by his relatives. The IO deputed PW28 SI Amit Prakash and PW29 HC Tejvir on the spot to guard the same and he alongwith PW25 SI Dhyan Singh and PW27 HC Sulekh went to GTB hospital. In the meanwhile the IO had requested the mobile crime team to reach the spot.
(9.11.2) It has come in the testimony of IO PW30 Inspector
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
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Vivekanad, PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir that in the hospital it came to the knowledge of the IO that the injured Gopi Chand Rawat was declared as brought dead. There were stab wounds on the dead body and the dead body was found with one gold coloured Time-X watch and one mobile earphone/lead and the said articles were handed over by the IO to one Amar Singh, younger brother of the deceased.
(9.11.3) It has come in the testimony of IO PW30 Inspector Vivekanad, PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir that SI Dhyan Singh prepared the application for preserving the dead body in the mortuary of GTB Hospital and IO came back to the scene and met the wife of the deceased and recorded her statement Ex. PW1/A. Thereafter, the IO prepared the rukka and got the FIR registered through Ct. Tejvir.
(9.11.4) It has come in the testimony of IO PW30 Inspector Vivekanad, PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir that the mobile crime team inspected the scene of crime and since the crime team photographer was not available, the IO procured the services of private photographer namely Shambhu Datt. The IO also prepared the site plan, Ex. PW30/B and lifted the blood, blood stained concrete and plain earth control. The IO recorded the statement of the brother of the deceased, namely Bhag Singh Rawat and the tenant of the deceased PW26 Pankaj Kumar Singh. The IO prepared the inquest document and got the postmortem Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:28 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 30/74 +0530 conducted.
(9.11.5) It has come in the testimony of IO PW30 Inspector Vivekanad, PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir that the IO met PW Sampati Devi and PW Ramesh Kumar (last seen witness) at the house of the deceased and recorded their statements.
(9.11.6) It has come in the testimony of IO PW30 Inspector Vivekanad, PW-25 SI Dhyan Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash and PW29 HC Tejvir that upon the information received from the secret informer, they all constituted the raiding team alongwith the brother of the deceased, Bhag Singh Rawat and the arrest of the accused persons and the documents relating to their arrest were brought on record. As per their testimonies, the accused persons made their disclosure to the IO and in pursuance of the said disclosure statement, the case properties i.e. the wallet of the deceased and the weapon of the offence i.e. the chhura/knife was recovered through accused Nazim and the mobile phone of the deceased was recovered through accused Bittoo @ Dheeraj @ Bunty. They also deposed qua the seizure of the blood stained clothes of the accused persons, which were recovered at their instance. The IO also prepared the pointing out memos at the instance of the accused persons. The FSL result, Mark PW30/E, PW30/F and PW30/G were brought on record through the testimony of IO PW30 Inspector Vivekanand.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:49:36
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Plea of Accused Persons:-
10. After completion of prosecution evidence, PE was closed. The statements of the accused Bittoo @ Dheeraj @ Bunty and Nazim were recorded under Section 313 Cr.P.C., in which they had pleaded innocence.
11. The accused persons chose not to lead any Defense Evidence.
12. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State, Sh. P. L. Behl, Ld. Counsel for accused Nazim and Sh. K. N. Sharma, Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty and Nazim. I have minutely gone through the evidence brought on record and the material aspects of the case.
Submissions made on behalf of the State:
13. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on 19.11.2011 between 03:00-04:00 AM, at the corner of Gali no.12, Dayalpur Extension, accused Bittoo @ Dheeraj @ Bunty and accused Nazim had entered into a criminal conspiracy with each other to commit robbery and in pursuance of the said conspiracy, they committed robbery of the mobile phone and wallet/purse of the deceased Gopi Chand Rawat at the knife point. The accused persons in pursuance of their criminal conspiracy hatched with each other had caused stab injuries on the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:41 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 32/74 +0530 person of the deceased Gopi Chand Rawat, in order to commit the said robbery. The injured Gopi Chand Rawat had succumbed to the injuries and the accused persons had intentionally committed his murder.
14. It is further submitted by the Ld. Addl. PP for the state that the medical evidence has duly proved that the deceased Gopi Chand Rawat had died after he had received five knife stab injuries on his body. He was declared brought dead by the concerned Doctor in the MLC Ex.
PW20/A. As per the postmortem report, Ex. PW7/A, the concerned doctor had opined the cause of death as "Hemorrahagic shock as a result of ante-mortem injury to heart produced by sharp edged weapon. All the injuries were ante-mortem in nature and were produced by sharp edged weapon and injury no.5 caused on left side of the chest was sufficient to cause death in ordinary course of nature". Furthermore, as per the opinion, the weapon used for causing the said injuries was a single edged sharp weapon. Therefore, the prosecution has been able to establish that the death of the deceased Gopi Chand Rawat was caused by the knife stab injuries received by him and the knife which was recovered from the possession of accused Nazim was the said knife, with which the injuries to the deceased were caused.
15. It is further submitted by the Ld. Addl. PP for the state that the mobile phone of the deceased was recovered through the possession of accused Bittoo @ Dheeraj @ Bunty and the wallet of the deceased containing Rs. 70/- cash, his MCD ID Card and PAN Card were recovered through the possession of accused Nazim. The said robbed Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:46 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 33/74 case properties were duly identified by the wife of the deceased, namely PW1 Pyari Devi and the said case properties were also duly identified by the brother of the deceased, namely PW2 Bhag Singh Rawat.
16. It is further submitted by the Ld. Addl. PP for the state that the prosecution has been able to prove the chain of the evidence regarding the recovery of the robbed articles from the accused persons alongwith the blood stained clothes of the accused persons through the testimony of prosecution witnesses. Therefore, the prosecution has been able to discharge its burden qua the offences for which the accused persons were charged with.
Submission made on behalf of the Accused:
17. It is submitted by the Ld. Counsel for the accused Nazim that the prosecution had produced 30 witnesses to prove its case. Out of the said 30 witnesses, 10 witnesses were public witnesses, however, none of them are the ocular witnesses or the last seen witnesses. As per the case of the prosecution there was allegedly one witness namely Ramesh Singh S/o Khadak Singh who was the last seen witness, however, he was never examined before this Court, since he could not be traced and he was dropped from the list of prosecution witnesses vide order dated 23.12.2022.
18. It is submitted by the Ld. Counsel for the accused Nazim that the prosecution could not bring on record any circumstantial evidence to Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:52 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 34/74 +0530 support their case and to link the accused persons with the offence in question. Since there was no ocular witness testimony or CCTV footage, the prosecution had relied upon the alleged recovery of the robbed articles and the weapon of offence to link the accused persons. However, there are material contradictions in the testimony of the recovery witnesses and reasonable doubts are created upon the entire recovery process and the benefit of the said doubt must be given to the accused persons.
19. It is submitted by the Ld. Counsel for the accused Nazim that there are material contradiction in the testimony of PW-27 HC Sulekh, PW-28 SI Amit Prakash, PW-29 HC Tejvir, PW-30 IO Inspector Vivekanand and the public witness PW-2 Bhag Singh Rawat regarding the factum of PW-2 Bhag Singh Rawat, who is the brother of the deceased to have joined the investigation on 22.11.2011 and regarding the constitution of the raiding team by the IO.
20. It is submitted by the Ld. Counsel for the accused Nazim that there are material contradictions in the testimony of the aforesaid witnesses of the raiding team, qua the information regarding the arrest of accused Nazim being given to his father, thereby, creating doubts upon the entire arrest process of accused Nazim.
21. It is submitted by the Ld. Counsel for the accused Nazim that there are material contradiction in the testimony of PW-27 HC Sulekh, PW-28 SI Amit Prakash, PW-29 HC Tejvir, PW-30 IO Inspector Vivekanand Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:49:58 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 35/74 and the public witness PW-2 Bhag Singh Rawat regarding the place of alleged recovery of the weapon (chhura) and the purse/wallet of the deceased which was allegedly robbed by the accused persons. Therefore, serious doubts are also created upon the said recovery.
22. It is submitted by the Ld. Counsel for the accused Nazim that there are material contradiction in the prosecution story regarding the seizure of the mobile phone belonging to the deceased through co-accused Bittoo @ Dheeraj @ Bunty, since in the seizure memo the IMEI number i.e. mentioned by the IO is not matching with the IMEI number mentioned on the box of the said mobile phone, which was allegedly seized by the IO through the wife of the deceased.
23. It is submitted by the Ld. Counsel for the accused Nazim that there are material discrepancies in the statements of the material prosecution witnesses regarding the site plan being prepared by the IO, since the IO had himself admitted in his cross examination that he had not prepared the site plan, however, the witness namely PW-7 HC Sulekh had deposed to the contrary and had stated that the IO had prepared the site plan of the place of recovery and the same was signed by him and other members of the raiding party. Therefore, more doubts were created around the arrest and recovery proceedings, allegedly carried out by the raiding team led by the IO PW-30 Inspector Vivekanand.
24. It is submitted by the Ld. Counsel for the accused Nazim that the alleged weapon of the offence i.e. the knife (chhura) was shown by the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:03 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 36/74 IO to be of 21 cm in length, in the sketch Ex. PW2/J and as per the case of the prosecution, the same knife was sent to FSL for forensic examination, however, in the FSL report the length of the knife was found to be 22.7 cm. Therefore, there is a material discrepancy in the dimensions of the alleged weapon of offence and the said discrepancy could not be explained by the prosecution in the present case.
25. It is submitted by the Ld. Counsel for the accused Nazim that the witness who had allegedly correctly identified the robbed purse of the deceased, i.e. his wife PW-1 Pyari Devi had categorically admitted during her cross examination that, prior to the TIP proceedings conducted before the Ld. MM, the IO had already shown him the purse. Therefore, the entire identification of the case property recovered through accused Nazim is rendered doubtful.
26. It is submitted by the Ld. Counsel for the accused Nazim that it is highly unbelievable that after committing the alleged offence on 19.11.2011, the accused Nazim had kept his blood stained clothes lying in his house, that is 3 days after the alleged incident and the said clothes were not washed or disposed off by then. Furthermore, the bag from which the robbed wallet of the deceased was recovered, was not seized by the IO. There was no photograph or videograph of the place of recovery made by the IO and no site plan of the place of recovery from where the wallet and the knife was recovered was prepared. Lastly, even though the family members of accused Nazim were present there in his house at the time of his alleged arrest and recovery of articles, the IO did Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:10 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 37/74 +0530 not make them witnesses to the arrest memo and recovery memos, making the entire arrest and recovery story unbelievable and same must be eschewed.
27. It is submitted by the Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty that as per the case of the prosecution, during the investigation the TIP proceedings qua the identity of accused Bittoo @ Dheeraj @ Bunty was got conducted by the IO through one witness namely Ramesh Singh S/o Khadak Singh. As per the TIP proceedings Ex. PW24/C, the said witness had duly identified accused Bittoo @ Dheeraj @ Bunty during the judicial TIP. However, the said TIP is in itself not a substantive piece of evidence and the accused cannot be convicted merely on the ground of the said identity, since the witness Ramesh Singh S/o Khadak Singh was never examined before this Court and he was dropped, after he could not be traced. Therefore, the essential link of the prosecution case qua the last seen testimony of the said witness could not be established by the prosecution.
28. It is submitted by the Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty that the entire investigation qua the arrest and recovery of the case properties through the accused Bittoo @ Dheeraj @ Bunty is highly tainted and rendered doubtful in view of serious contradictions in the testimony of the formal police witnesses who had taken part in the raiding team and the public witness namely PW2 Bhag Singh Rawat.
29. It is submitted by the Ld. Amicus Curiae for accused Bittoo @ Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:15 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 38/74 +0530 Dheeraj @ Bunty that as per the case of the prosecution, accused Bittoo @ Dheeraj @ Bunty was working as a rickshaw driver in Sarvada Public School, Sadatpur and he was residing in the said school premises itself and the recovery of the blood stained clothes of the accused was shown by the prosecution from the said school itself. However, PW10 Beena Paliwal had turned hostile at the time of her testimony and she had categorically deposed that she did not knew any person by the name of Bittoo @ Dheeraj @ Bunty and although one person used to work in their school and the said person used to ply rickshaw to ferry the students to and fro to their school, however, the accused Bittoo @ Dheeraj @ Bunty was not the said person employed by them. Therefore, the prosecution has miserably failed to establish the link between the accused Bittoo @ Dheeraj @ Bunty and the place from where the alleged recoveries have been shown.
30. It is submitted by the Ld. Amicus Curiae for accused Bittoo @ Dheeraj @ Bunty that the biological FSL report, Mark PW30/E, which was brought on record by the prosecution through the testimony of the IO PW30 Inspector Vivekanand cannot be relied upon, since the examiner namely Ms. Sunita Gupta, who prepared the said report dated 28.06.2012 was never examined before this Court by the prosecution.
Even if the said report is taken on its face value, the exhibit '9a', which was containing one pant having very few faint brown stains, was the pant which was allegedly worn by the accused Bittoo @ Dheeraj @ Bunty at the time of the commission of the offence and during the biological examination, blood was detected on the said pant. However, the said Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:20 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 39/74 +0530 report is silent on the fact that whether the said blood was the blood of the deceased or not. Furthermore, as per the said report, the blood found on the clothes of the deceased were having 'A' Group, however, from the alleged weapon of offence, i.e. the knife and the pant of the accused Bittoo @ Dheeraj @ Bunty, no reaction regarding the 'ABO' grouping was found. Furthermore, even the alleged blood stained earth recovered from the crime scene could not match with the blood grouping of the deceased. Therefore, the prosecution cannot take the aid of the said forensic report.
Case Laws & Relevant Law:
31. Before proceeding ahead with appreciation of the evidence brought on record, this court deems it fit to discuss section 397 IPC, 1860 which is reproduced below:
"397. Robbery or dacoity, with attempt to cause death or grievous hurt ;
If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
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32. As per the ingredients of offence punishable u/s 397 IPC, 1860 an ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:26 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 40/74 act would fall within the mischief of the section if at the time of committing the robbery/dacoity the offender:
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
Reliance is placed upon the decision of the Hon'ble High Court of Bombay in "Shrawan Dashrath Datrange Vs. State of Maharastra"
(1997) 2 Crimes 47 (Bom).
33. As far as the interpretation of the word " uses" for the purpose of section 397 IPC, 1860 is concerned, what is essential to satisfy the word "uses" is that the robbery being committed by an offender who was armed with deadly weapon which was within the vision of the victim, so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Ashfaq Vs. State (Govt. of NCT of Delhi) " (2004) 3 SCC 116.
34. For section 397 IPC, 1860 it postulates that only the individual act of the accused is relevant to attract the said section. Therefore, it inevitably negates the use of the principle of constructive or vicarious liability as engrafted in section 34 of IPC, 1860. Reliance is placed on the decision in Ashfaq (Supra).
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35. It is trite law that the accused persons can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
36. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary. "Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
37. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 42/74 11:50:38 +0530 "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
38. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
39. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
40. In addition, they supplement the evidence in proving the existence Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 43/74 11:50:43 +0530 of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
41. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
42. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:50:52 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 44/74 +0530 prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
43. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain.
44. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v.
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State of Madras", 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:05 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 46/74 +0530 go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:11 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 47/74 +0530 cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
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CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 48/74 Appreciation of Evidence:
Medical Evidence & Cause of Death:-
45. In the background of the abovesaid decisions, I shall now appraise the evidence brought on record. In the present case, the prosecution has been able to prove beyond reasonable doubt through the testimony of PW 20 Dr. Chhavi Sharma, who had deposed on behalf of Dr. Raj Kumar that the injured patient Gopi Chand Rawat was admitted in GTB Hospital on 19.11.2011 at around 07:00 AM and he was declared as 'brought dead' in the MLC, Ex. PW20/A. His death summary/death certificate, Ex. PW 20/C was also brought on record. The said MLC Ex. PW 20/A had brought on record the result of the local examination, whereby it was recorded by the concerned doctor that, " the patient was brought in casualty in unconscious stage by the attendant and his pulse was not palpable, BP was not recordable, the heart sound was not audible and the respiratory movement was found to be absent." Thereafter, the patient was declared as 'brought dead'.
46. As per the Post Mortem Report, Ex. PW7/A, which was duly proved through the testimony of PW7 Dr. Neha Gupta, that the cause of death was "Hemorrahagic shock as a result of ante-mortem injury to heart produced by sharp edged weapon. All the injuries were ante- mortem in nature and were produced by sharp edged weapon and injury no.5 caused on left side of the chest was sufficient to cause death in ordinary course of nature". Furthermore, as per the opinion, the weapon Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 49/74 11:51:21 +0530 used for causing the said injuries was a single edged sharp weapon. Therefore, the prosecution has proved beyond reasonable doubt that deceased Gopi Chand Rawat had succumbed due to the stab injuries received by him upon his body.
Linking the accused persons to the Act which caused the death of the deceased:-
47. As per the case of the prosecution, there were no ocular witnesses who had seen the incident in question. There was no CCTV footage of any camera, which had recorded the said incident. Therefore, the entire case of the prosecution was based upon circumstantial evidence and relied heavily on the testimony of its last seen witness namely Ramesh Singh S/o Khadak Singh, who had allegedly seen the accused persons running away after the alleged incident took place and that they had bumped into him and managed to run away and that the said witness had seen the wallet in the hands of one of the assailants and a mobile phone in the hands of the other assailant.
48. During the investigation, the IO moved an application, Ex. PW24/A seeking the judicial TIP of the accused persons conducted through the said last seen witness namely Ramesh Singh S/o Khadak Singh. During the judicial TIP, Ex. PW24/B, the said witness could not identify the accused Nazim, however, vide the proceedings, Ex. PW24/C, he had correctly identified accused Bittoo @ Dheeraj @ Bunty.
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49. It is trite law that the TIP proceedings are merely a step in the investigation and its sole purpose is to satisfy the investigating agency that whether the accused persons are the assailants and also to test the veracity of the testimony of the ocular/last seen witness on the ground that the accused persons are the same individuals whom they had seen at the time of the incident or immediately after the incident. The TIP proceedings in itself is not a substantive piece of evidence and same cannot be the sole basis of the conviction of the accused persons.
50. During the trial, the said last seen witness namely PW Ramesh Singh S/o Khadak Singh was summoned by this Court on several occasions, however, he could not be traced and vide order dated 23.12.2022, passed by the Ld. Predecessor of this court, the said witness was dropped from the list of prosecution witnesses. The said witness was a star witness of the case of the prosecution, since he had allegedly seen the accused persons running away with the robbed articles i.e. the purse/wallet and mobile phone. The prosecution's story comprises of two incidents, which were committed during the same transaction, the first being the incident of murder and the second being the incident of robbery and the accused persons running away with the robbed articles. The said Ramesh Singh S/o Khadak Singh was the ocular witness of the second incident, wherein, the accused persons were allegedly running away after committing the robbery and happened to bump with him. Therefore, the said link of the prosecution story regarding the PW Ramesh Singh S/o Khadak Singh witnessing the accused persons running away from the spot in a tense state and that they were carrying Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 51/74 11:51:31 +0530 the mobile phone and the wallet could not be established. Therefore, the prosecution had to rely upon other evidence to establish their case beyond reasonable doubt that the accused persons are the real assailants who had committed the offence in question.
51. As far as the timeline of the offence and the circumstances leading up to the discovery of the body of the deceased lying in the drain is concerned, the prosecution has sought to prove through the testimony of the wife of the deceased, namely PW1 Pyari Devi and the friend of the deceased PW23 Mehtab Singh that on the night prior to the death of the deceased, he had gone to the house of PW23 Mehtab Singh to attend the wedding ceremony (madha ceremony) of the son of PW23 Mehtab Singh. It had come on record through the testimony of PW23 Mehtab Singh that the deceased stayed at his house till about 02:00 AM on 19.11.2011 and thereafter, he left for his home.
52. Although, PW-23 Mehtab Singh was himself the last seen witness, since he had seen the deceased for the last time at about 01:30-02:00 AM on 19.11.2011. Although, as per the law, the last seen witness is required to establish the whereabouts of the deceased and the needle of suspicion in the present case did not point to him, since in the facts of the present case, the PW23 Mehtab Singh was the host of the marriage ceremony of his son and as per the course of normal human conduct, the father of the groom would not personally drop all the guests to their respective houses and the testimony of PW23 Mehtab Singh in this regard that after having dinner and consuming liquor, the deceased left for his home, in spite of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:36 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 52/74 being requested by PW23 Mehtab Singh to stay over for the night, is plausible and his own conduct of being the last seen witness is very well explained.
53. The testimony of PW23 Mehtab Singh and PW1 Pyari Devi regarding the deceased attending the marriage function at the house of PW23 Mehtab Singh was further corroborated through the testimony of the bhabhi of the deceased, namely PW13 Sampati Devi, who had deposed that in the early hours of 19.11.2011, she received a phone call from the deceased at around 01:30-02:00 AM and the deceased had informed her that he was going back to his home after attending a marriage function and thereafter, his phone got switched off.
54. The prosecution has also proved the chain of the circumstantial evidence relating to the period from which the body of the deceased was found in the drain, till the time he was shifted to the hospital and described by the concerned doctor as "brought dead". To this effect, the prosecution had examined PW6 Adesh Sharma and PW14 Santu @ Santosh, who had first seen the body lying in the drain of gali no. 12 situated in Dayalpur Extension, Delhi. Although, there were two other witnesses namely Pintu @ Virender Singh and Rajender @ Raju who were also present alongwith PW6 and PW14, however, they were not examined by the prosecution on the ground that since the fact which needed to be brought on record through their testimonies, was already proved by the prosecution through the testimony of PW6 Adesh Sharma and upon the submissions made by Ld. Addl. PP for the State, the Ld. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:42 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 53/74 +0530 Predecessor of this court vide order dated 01.09.2015, had dropped the said witnesses from the prosecution list of witnesses.
55. Through the testimony of PW26 Pankaj Kumar Singh, who was the tenant of the deceased and through the testimony of the wife of the deceased, namely PW1 Pyari Devi and the testimony of PW5 Ved Pal, who was the neighbour of the deceased, the prosecution has also proved the chain qua the body of the deceased being shifted to GTB Hospital in a TSR by PW5 Ved Pal.
56. The next crucial link of the entire prosecution case was to link the accused persons with the offence in question. Since, there was no ocular witness testimony and the last seen witness namely Ramesh Singh S/o Khadak Singh was not examined before this Court, the entire focus has to be shifted to the arrest and alleged recovery of the weapon of the offence and the robbed articles through the accused persons.
Additionally the circumstances surrounding the recovery of the alleged blood stained clothes of the accused persons, which as per the prosecution case was having the blood of the deceased and the proper chain of custody of the said case properties, till it ended up with FSL for forensic examination also assumes great importance and had to be appreciated extremely carefully.
57. As per the prosecution's case and the testimony of its witnesses, the raiding party which was constituted by the IO consisted of the IO himself , PW30 Inspector Vivekanad and he alongwith PW-25 SI Dhyan Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:48 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 54/74 +0530 Singh (Retd.), PW27 HC Sulekh, PW28 SI Amit Prakash, PW29 HC Tejvir and PW2 Bhag Singh Rawat. One peculiar circumstance which stands out from the investigation conducted in the present case, is the fact that the alleged last seen witness namely Ramesh Singh S/o Khadak Singh was not joined as the member of the said raiding party to go looking out for the accused persons after the information from the secret informer was received and instead the IO making the brother of the deceased, namely PW2 Bhag Singh Rawat, who is admittedly not the last seen witness, as the member of the raiding party raises some doubts about the entire arrest and recovery proceedings.
58. As per the testimony of PW27 HC Sulekh, PW28 SI Amit Prakash, PW29 HC Tejvir and PW30 IO Inspector Vivekanand, the brother of the deceased PW2 Bhag Singh Rawat was made a member of the raiding party and he had joined there as the public witness. However, their inter- se testimonies regarding the circumstances surrounding the said raiding party being constituted is not free from blemishes and contradictions. PW27 HC Sulekh had categorically deposed that all the formal witnesses had joined upon the request of the IO PW30 Inspector Vivekanand and PW2 Bhag Singh Rawat was called from his house by the IO. However, PW2 Bhag Singh Rawat had deposed that on 22.11.2011, he was present at the house of his deceased brother and at about 03:00-03:30 PM, four police officers including the IO reached there and the IO had instructed him to join the investigation, to which he agreed. However, during his cross examination, PW27 HC Sulekh contradicted himself by deposing that PW2 Bhag Singh Rawat was already present with the IO, when he Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:54 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 55/74 +0530 and Ct. Tejvir met the other members of the raiding party at 03:30 PM. Lastly, when PW29 HC Tejvir was examined, he had deposed that he and Ct. Sulekh were directed by the Duty Officer to reach the house of the deceased and when they reached there, the IO and SI Amit Prakash were already present there. The joining of PW2 Bhag Singh Rawat in the raiding party and the chance recovery of the weapon of the offence and the robbed articles from both the accused persons on the very same day, cannot be a coincidence and serious doubts are created in the mind of this Court, so as to whether the said raid and recovery was padding done by the IO.
59. As per the testimony of the IO PW30 Inspector Vivekanand, he had informed the arrest of accused Nazim to his father, however, in the arrest memo, Ex. PW2/G, although the name of the father of the accused is mentioned but it is mentioned that the father of the accused refused to sign the arrest memo. It had categorically come in the testimony of PW2 Bhag Singh Rawat and PW27 HC Sulekh that at the time of arrest of accused Nazim, his mother was present there, however, the parents of the accused were not made to join the investigation and the pointing out memo, Ex.PW2/K pertaining to the knife and the robbed purse, the seizure memo of the clothes of the accused Nazim, Ex. PW2/L and the sketch of the knife, Ex. PW2/J, does not bear the signatures of the public persons, including the parents of the accused, who were present there at that time.
60. It has categorically come in the cross examination of the IO PW30 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:51:59 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 56/74 +0530 Inspector Vivekanand that he had not taken the signatures of any public person on the seizure memos and had also categorically deposed that when the seizure memo was made, the parents of the accused Nazim were present there only. He had also categorically deposed that he had not prepared the site plan of the place from where accused Nazim was apprehended and the place from where the recoveries were allegedly effected by him through the accused person. He further categorically deposed that he had not got the photograph or video of the place from where the said recovery was allegedly effected. Furthermore, the IO PW30 Inspector Vivekanand also categorically admitted there being interpolations/over-writings and cuttings in the pointing out memo and the recovery memo Ex. PW2/K. From the recovery proceedings brought on record by the prosecution through the testimony of the prosecution witnesses, it is not established that the room from where the said recoveries have been shown from accused Nazim was in his exclusive possession and that no other person other then the accused was having knowledge of the place, where the said black bag containing the chhura and the wallet/purse was hidden.
61. As per the testimony of the prosecution witnesses examined before this Court, the robbed wallet and the knife (chhura) was allegedly recovered from the room situated on the 1 st floor of the house of accused Nazim and the accused had produced one black coloured bag containing the said wallet and chhura, however, the IO made no efforts to seize the said black coloured bag, from where the articles were allegedly recovered. As per the sketch, Ex. PW2/J, the entire length of the chhura Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:05 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 57/74 was 21 cm and out of the said 21 cm, 12 cm was the length of the blade and 9 cm was the length of the handle. As per the IO the said knife, Ex. P-6, was sent by him for FSL examination. Interestingly, it is clear from the FSL report, Mark PW30/F, the knife which was received at FSL Rohini was marked as 'exhibit-7' and as per the description given in the said report dated 28.08.2012, the knife which was examined by the FSL expert was approximately 22.7 cm in length and it was having a blade measuring approximately 12.7 cm in length. Therefore, serious doubt has been created in the mind of this Court, as to whether the same knife which was allegedly shown to have been recovered through accused Nazim had been sent to FSL or not. If it was the same knife, then either magically or otherwise like being a living organism, which the knife was not, it had increased in size by the time it had reached the FSL Rohini.
62. The discrepancy in the dimensions of the knife allegedly recovered through accused Nazim in the sketch, Ex. PW2/J and the FSL report dated 28.08.2012, Mark PW30/F is further accentuated by the testimony of the then MHCM, PW18 HC Bijla Oran who had categorically deposed during his examination in chief that "On 30.12.2011, I had sent the exhibits of this case to FSL Rohini on the instructions of the IO through Ct. Chander Shekhar vide RC no. 42/21. However, the case property could not be deposited on that day and hence he returned back the case property to me on 03.01.2012 and I re-deposited the same." He further categorically deposed that "On 04.01.2012, I had again sent the exhibits of this case to FSL Rohini on the instructions of the IO through Ct. Somvir vide RC no. 101/21. Again the case property could not be Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:11 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 58/74 +0530 deposited on that day." Lastly, he went on to further depose that "On 05.01.2012, I had again sent the exhibits of this case to FSL Rohini on the instructions of the IO through Ct. Sulekh vide RC no. 106/21 and it was deposited on that day."
63. Therefore, as per the register no. 19 and 21 maintained by the MHCM and the relevant entries brought on record through the testimony of PW18 HC Bijla Oran, it had come on record that from 30.12.2011 till 03.01.2012 i.e. for five days the case properties including the knife, the clothes of the deceased and the clothes of the accused persons remained in the custody of one Ct. Chander Shekhar and in spite of the fact that the case properties could not be deposited on 30.12.2011 itself for any reason whatsoever, the said Ct. Chander Shekhar sat with the case property and he had not bothered to re-deposit it with the MHCM in the Malkhana. The said Ct. Chander Shekhar was examined by the prosecution as PW12 and nowhere in his testimony he had deposed that the case properties were handed over to him by the MHCM for the same to be deposited in the FSL. There is no explanation offered through his testimony as to the faux pas committed during the custody of the case property of the present case. Furthermore, the Ct. Somvir, with whom the case properties were sent for the second time on 04.01.2012 and even then the case properties could not be deposited at FSL Rohini, was never made the prosecution witness in the present case to explain the chain regarding the custody of the case properties. Therefore, serious doubts are created upon the entire prosecution story regarding the chain of custody of the alleged weapon of the offence, which was shown to be Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:17 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 59/74 recovered through accused Nazim.
64. As far as the recovery of the wallet/purse of the deceased containing Rs. 70/- cash, his MCD I-Card and the PAN card, Ex. P-3 (colly), the testimony of the identifying witness, PW1 Pyari Devi does not inspire any confidence. When PW1 Pyari Devi was cross examined by Ld. Counsel for accused Nazim on 11.09.2013, she had categorically deposed that "It is correct that when I was called for the first time in the PS I had identified the mobile phone and purse of my husband."
Therefore, the entire judicial TIP of the case property i.e. the purse belonging to the deceased vide Ex. PW22/D, becomes useless for the case of the prosecution, since the said wallet was already shown to her by the police officials in the PS, prior to the judicial TIP being conducted. Furthermore, she was confronted from her earlier statement Ex.PW1/A, wherein she had not stated that when her husband had left the house on 18.11.2011, he was having a white coloured mobile phone and a brown coloured purse. There is also some inconsistency in the testimony of the prosecution witnesses regarding the colour of the purse of the deceased which was recovered through the possession of accused Nazim. While PW1 Pyari Devi described the said purse to be brown in colour (bhoora), the remaining formal witnesses had described it to be black and brown in colour.
65. As far as the mobile phone of the deceased is concerned, the same was shown to have been recovered through the possession of accused Bittoo @ Dheeraj @ Bunty. The said mobile phone, Ex. P-1 was also Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:23 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 60/74 +0530 shown to the wife of the deceased, PW1 Pyari Devi by the IO, when she first came to the police station. The TIP of the mobile phone was not got conducted and to link the said mobile phone with the deceased, the prosecution had relied upon the testimony of the family members of the deceased, including his wife (PW1 Pyari Devi), his brother (PW2 Bhag Singh Rawat) and his bhabhi (PW13 Sampati Devi), however, none of the said witnesses could depose about the number of the mobile phone, which was used by the deceased and the said sim card being used in the particular mobile phone recovered through accused Bittoo @ Dheeraj @ Bunty. As per PW1 Pyari Devi, she received a phone call from her husband on her mobile phone, however, she could not tell either the number of the deceased or her own mobile number. PW13 Sampati Devi was also silent upon the number from which she had allegedly received a call from the deceased, soon before his death. Lastly, even PW2 Bhag Singh Rawat was completely silent on the aspect of mobile number of his brother. The said testimonies when appreciated in the light of the seizure memo, Ex. PW2/E, wherein although one sim of Vodafone was found inserted inside the sim slot of the said mobile phone, however, the same was not in a working condition and no effort was made by the IO to trace the mobile number associated with the said sim card. Furthermore, as per the case of the prosecution, the identity of the said mobile phone which the deceased was sought to be established through the box of the said mobile phone, which was handed over to the IO by the wife of the deceased and was seized vide seizure memo, Ex. PW1/B. The said box of the mobile phone was containing the IMEI number and other details of the handset and it was exhibited as Ex. P-6. However, the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:28 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 61/74 +0530 IMEI number as mentioned on the said box as duly mentioned in the seizure memo Ex. PW1/B did not match exactly with the IMEI number of the mobile phone recovered through accused Bittoo @ Dheeraj @ Bunty. Therefore, serious doubts are created upon the prosecution story as to whether the said mobile phone was used by the deceased or even if it was used by the deceased, whether it is the same mobile phone which has been recovered through accused Bittoo @ Dheeraj @ Bunty, since except for the said mobile phone, there is nothing in the testimony of the prosecution witnesses to link accused Bittoo @ Dheeraj @ Bunty to the offence in question.
66. As far as the prosecution story of accused Bittoo @ Dheeraj @ Bunty being residing on the 2nd floor of Sarvada Public School is concerned, the testimony of PW10 Bina Paliwal is of no use to the case of the prosecution as she had resiled from her previous statements and was declared hostile by the State. She was subjected to rigorous cross examination, however, nothing material came out in her cross examination conducted by Ld. Addl. PP for the State.
67. It has categorically come in the testimony of the members of the raiding party including PW-27 HC Sulekh that the said school from where the recovery of the clothes of accused Bittoo @ Dheeraj @ Bunty is shown, was surrounded by many residential houses and IO had not called any person to join the proceedings at the school. The IO had not asked any public person to join the proceedings at the time of arrest of accused Bittoo @ Dheeraj @ Bunty. The site plan of the place of arrest Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 62/74 11:52:37 +0530 and the site plan of the said school was not prepared by the IO. It was further deposed by PW27 in his cross examination that IO had not called the Principal/Manager/Teacher of the said school at the time of conducting the recovery proceedings. Furthermore, it had also come in the testimony of PW27 HC Sulekh that he could not explain the reason for going to the house of co-accused Nazim just after the arrest of accused Bittoo @ Dheeraj @ Bunty, especially when the school from where the recovery of the clothes have been shown was nearly 10-15 sq. yards away from the place of arrest of accused Bittoo @ Dheeraj @ Bunty. Furthermore, it had categorically come in the cross examination of PW2 Bhag Singh Rawat that the clothes of accused Bittoo @ Dheeraj @ Bunty were recovered from the varandah situated on the 2 nd floor of Sarvada Public School and he had admitted that the said place was open to public and members of the public were having to access to the said place.
68. As far as the places from where the recovery of the case properties including the weapon of the offence and the robbed articles is concerned, it had come in the testimony of the members of the raiding parties that the recovery was made from the 1 st floor of the house of accused Nazim and the clothes of accused was recovered from the said room and the clothes were visible to everyone. What is highly unbelievable is that even after 3 days of the alleged incident, the alleged robber i.e. accused Nazim who had gone to the extent of giving 5 knife blows on the body of the deceased, only to rob the mobile phone and the purse of the deceased, had kept the PAN card and the govt. issued identity card of the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:43 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 63/74 +0530 deceased in the wallet of the deceased, till the time it was recovered from his house. As per the case of the prosecution, the motive of the murder was the robbery of the cash and valuables carried by the deceased at the time of his death. The accused persons, as per the prosecution story went to the extent of giving 5 stab blows to the deceased in order to steal/rob from him the mobile phone and the wallet, however, they left the wrist watch of the deceased on his hand itself. The fact that the dead body was found having a wrist watch and the said wrist watch being later handed over by the IO to the brother of the deceased namely Amar Singh at the hospital, also creates some doubt upon the motive of the commission of the present offence.
69. As per the FSL report, Mark PW30/E, there was no blood detected on the clothes of accused Nazim, which he was allegedly wearing at the time of the offence. No blood was detected from the few stone pieces alongwith the soil, which was picked up from the scene of incident. The clothes of the deceased was matched with the blood of the deceased and that is not surprising, as it is not disputed that the deceased had succumbed to the injuries suffered by him. However, no blood group matched between the blood found on the pant recovered through accused Bittoo @ Dheeraj @ Bunty and the blood group of the deceased. Therefore, the said FSL report is of no use for the case of the prosecution.
70. The serious doubts created by the discrepancy between the dimensions of the knife as mentioned in the seizure memo and the sketch Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:52 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 64/74 +0530 prepared by the IO and the knife which was examined before the FSL, coupled with the chain of custody being broken in the present case and no explanation offered by the prosecution regarding the same, has hurt the case of the prosecution and the benefit of doubt must go to the accused persons.
71. In the present case, the Ld. Predecessor of this court had framed charges against accused Bittoo @ Dheeraj @ Bunty for committing the offence punishable u/s 397/120B IPC, 1860. It is trite law as held by the Hon'ble Apex Court in "Ashfaq Vs. State" (2004) 3 SCC 116 that section 397 IPC, 1860 postulates only the individual act of the accused relevant to attract the said section. It inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34 of IPC, 1860. On similar grounds the accused against whom there are specific allegation of committing the offence punishable u/s 397 IPC, 1860 are leveled, can be tried for the commission of the said offence and the co-accused person cannot be held guilty on the basis of being involved in the criminal conspiracy with the main accused person.
72. In the present case, the prosecution has been able to prove the death of the deceased Gopi Chand Rawat through the medical evidence, however, the non examination of the alleged last seen witness alongwith the discrepancy in the dimensions of the alleged weapon of offence coupled with highly doubtful arrest and recovery proceedings have not helped the case of the prosecution. The chain of custody of the case property was broken and the lapses in the investigation was not Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:52:58 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 65/74 +0530 explained by the prosecution. The case property was already shown to the witness, prior to the judicial TIP and glaring contradiction in the inter-se testimony of the members of the raiding party and the public witness has dented the case of the prosecution. The identity of the accused persons established only through the formal witnesses, without completing the links of the chain of circumstantial evidence to link the accused persons with the offence in question, is not enough to convict them. Therefore, they cannot be convicted for the offences they have been charged with. Suspicion, however, grave, cannot take place of proof.
73. In the present case, the IO had allegedly got recovered the mobile phone of the accused Nazim, Ex. P-2 and the said mobile phone was containing a sim card of Airtel Ltd. As per the case of the prosecution, the circumstantial link of the presence of accused Nazim near the scene of crime was sought to be proved through his call detail records and the cell ID location chart. The IO had sought the CDR of the mobile phone pertaining to accused Nazim and the same was filed alongwith the chargesheet. Similarly, the CDR of the mobile phone of the co-accused Bittoo @ Dheeraj @ Bunty was obtained by the IO from Vodafone ESSAR Mobile Services Ltd., and the same was also filed alongwith the chargesheet. However, the said CDR and CAF were not brought on record through the testimony of the IO PW 30 Inspector Vivekanand and for the reasons best known to the prosecution, the concerned Nodal Officers of Bharti Airtel Limited and Vodafone ESSAR Mobile Serveices Limited were never called as witnesses in the present case as the said Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:53:04 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 66/74 Nodal Officers were not even named in the prosecution list of witnesses.
74. During the investigation the IO had also sought to procure the CDR of mobile numbers 9013306397 and 9013604355, pertaining to the deceased Gopi Chand Rawat and the said CDRs, although filed alongwith the chargesheet was never proved by the prosecution. There was not even a whisper of any mention of the IO procuring the CDR of the mobile numbers of the deceased in his testimony recorded before this Court. Like the CDRs of the alleged numbers belonging to the accused persons, the CDRs of the mobile numbers purportedly being used by the deceased was not brought on record and the concerned Nodal Officer was also not examined as a prosecution witness and the said Nodal Officers were not even named in the prosecution list of witnesses.
75. During the investigation, since the official photographer of the Mobile Crime Team was not available, the IO had called a private photographer, PW17 Sambhu Dayal. It had come in the testimony of PW17 Sambhu Dayal that he had taken 5-6 photographs of the spot containing the blood through his digital camera and after developing the said photographs, Ex. PW17/A-1 to Ex. PW17/A-6, he had handed over the same to the IO. However, it had categorically come in his deposition that he has not handed over the chip, CD or pendrive in which the said photographs were stored to the IO. There was no certificate u/s 65B of Indian Evidence Act, 1872 produced by the said witness. Therefore, even the said photographs vanished from the ken of evidence.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:53:09
+0530
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 67/74
76. The FSL report dated 28.06.2012, pertaining to the blood sample of the deceased, the earth control, clothes of the deceased, clothes of the accused persons and the alleged weapon of the offence i.e. the knife was merely brought on record through the testimony of the IO PW30 Inspector Vivekanand and same was marked as Mark PW30/E and the examiner Ms. Sunita Gupta was never examined before this Court as a witness. However, even if the said report is taken on its face value, since no blood was detected on the clothes which were recovered through accused Nazim and the blood found on the blood stained earth, the knife and the pant of accused Bittoo @ Dheeraj @ Bunty could not match with the blood of the deceased, therefore, the said FSL report dated 28.06.2012 is not proving beyond reasonable doubt that the blood of the deceased was found lying on the crime scene or on the weapon of the offence or on the clothes, which were being worn by the accused persons at the time of the commission of the offence.
77. Similarly, even the Physics Division examination report prepared by FSL Rohini dated 28.08.2012 was merely brought on record through the testimony of the IO PW30 Inspector Vivekanand and same was marked as Mark PW30/F and the examiner Sh. Parshuram Singh was never examined before this Court as a witness. Even if the said report dated 28.08.2012 is taken on its face value, it is creating more dents in the case of the prosecution, rather than to support it since it had brought a material discrepancy in the size and dimensions of the alleged weapon of the offence, when compared with the seizure memo and the sketch of the said knife. Therefore, serious doubts have been created as to whether the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 68/74 11:53:15 +0530 same knife which was recovered through accused Nazim was sent to the FSL or not, especially when the said case property had remained in the possession of two formal witnesses for number of days without proper authorisation, since as per the register no. 19 and 21 maintained by the MHCM and the relevant entries brought on record through the testimony of PW18 HC Bijla Oran, it had come on record that from 30.12.2011 till 03.01.2012 i.e. for five days the case properties including the knife, the clothes of the deceased and the clothes of the accused persons remained in the custody of one Ct. Chander Shekhar and in spite of the fact that the case properties could not be deposited on 30.12.2011 itself for any reason whatsoever, the said Ct. Chander Shekhar sat with the case property and he had not bothered to re-deposit it with the MHCM in the Malkhana. The said Ct. Chander Shekhar was examined by the prosecution as PW12 and nowhere in his testimony he had deposed that the case properties were handed over to him by the MHCM for the same to be deposited in the FSL. Furthermore, even the case properties were not deposited on 04.01.2012 by Ct. Somvir and as per the MHCM the case properties were re-deposited in the Malkhana, however, no such entry was made by the MHCM regarding re-deposition and the said Ct.
Somvir was never examined as a prosecution witness.
78. Similarly, even the Chemical Division examination report prepared by FSL Rohini dated 28.06.2012 was merely brought on record through the testimony of the IO PW30 Inspector Vivekanand and same was marked as Mark PW30/G and the examiner Dr. Subhra Kumar Paul was never examined before this Court as a witness. Even if the said report Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:53:21 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 69/74 +0530 dated 28.06.2012 is taken on its face value, it is also contradicting the testimony of material public witness namely PW23 Mehtab Singh, who had deposed that the deceased had consumed liquor in the function organized at his house and the deceased stayed at his house till about 01:30-02:00 AM and thereafter, while he was on his way to his house, the alleged offence was committed. However, in the FSL report dated 28.06.2012, no alcohol was found in the viscera samples of the deceased.
Therefore, even the said report is not coming to the aid of the prosecution's case.
79. Since the prosecution could not establish beyond reasonable doubt that the accused persons had committed the robbery of the mobile phone and the wallet belonging to the deceased and during the said robbery, they had also committed the murder of the deceased. Since, the robbery could not be proved beyond reasonable doubt, therefore, the accused persons cannot be convicted of the offence punishable u/s 411 IPC, 1860.
80. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:53:36 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 70/74 +0530 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra " AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P. " (1996) 10 SCC 193.
81. It is also settled law that accused has to only proboblized the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam " (2012) 2 SCC 34 and " Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
82. There is another golden thread which runs through the web of administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773.
Conclusion & Findings:
83. The improvements and the inherent contradictions in the testimony of the prosecution witnesses had certainly raised doubts in the mind of this Court and the effort of the Criminal Court is not to be prowl for Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 71/74 11:53:43 +0530 imaginative doubts, unless is doubt is of a reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused persons is governed by the principle of "preponderance of probabilities" and in light of the discussion above, the accused persons in the present case have been able to raise reasonable doubts against the prosecution version of events and the hypothesis as propounded by the accused persons that they have been falsely implicated in the present case by the IO, since it was a blind murder case and instead of searching for the real culprits, the accused persons were roped in by the IO. With the evidence brought on record, wherein, firstly, there were no ocular witnesses; secondly, the sole last seen witness could not be traced and his examination could not be recorded before this Court; thirdly, there being number of contradictions and inconsistencies in the testimonies of the prosecution witnesses relating to the arrest and recovery proceedings; fourthly, the case property i.e. the purse/wallet of the deceased and the mobile phone of the deceased was already shown to his wife, prior to the judicial TIP proceedings; fifthly, the discrepancy in the size and dimensions of the knife as mentioned in the sketch and the FSL report; sixthly, the Biological Report prepared by the FSL, wherein, the blood of the deceased could not match from the blood found on the knife, the blood Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 11:53:50 +0530 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 72/74 stained earth and the pant of accused Bittoo @ Dheeraj @ Bunty; seventhly, the chain of custody of the case properties being not properly established by the prosecution and; lastly, the CDRs, CAFs and Cell Location ID chart of the mobile phones pertaining to the deceased and the accused persons, not being proved by the prosecution, therefore, it cannot be said that the chain of prosecution witnesses and the evidence brought on record was so complete, so as to not leave any reasonable ground consistent with the innocence of the accused person.
84. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, there is a serious shadow of doubt cast upon it and not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Nazim S/o Raunaz and accused Bittoo @ Dheeraj @ Bunty S/o Ashok Kumar are acquitted of the charges for committing the offences punishable u/s 302/392/397 R/w section 120-B of Indian Penal Code, 1860 and for committing the offence punishable u/s 411 Indian Penal Code, 1860 and they shall be set at liberty.
85. The accused persons had already filed their bail bonds u/s 437A Cr.PC and the same shall remain in force for a period of six months from today. All the other bail bonds/surety bonds stands canceled and the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.12.09 CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 73/74 11:53:56 +0530 earlier surety except for surety given u/s 437A Cr.PC stands discharged.
86. The case property, if any, be released to the rightful owner as per the law and the applicable rules.
87. File be consigned to the record room after due compliance.
Announced in the open court on 09.12.2024.
This judgment consists of 74 pages and all of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.12.09
11:54:02
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/09.12.2024.
CNR No. DLNE01-000218-2012 State Vs. Nazim & Anr. FIR No. 391/2011 Page no. 74/74