Delhi District Court
State vs . Ram Vilas Etc. on 20 January, 2016
-: 1 :-
IN THE COURT OF SH. RAKESH KUMARII,
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
Unique Id. No. 0241R0267312011
SC No. 28/3/14
FIR No. 73/11
U/S 302/201/506 IPC
PS Nihal Vihar
State vs. Ram Vilas etc.
JUDGEMENT
1. Sl. No. of the case : 28/3/14
2. Date of Committal to Sessions : 06.07.2011
3. Received by this court on transfer : 28.01.2014
4. Name of the complainant : Insp. Mukesh Kumar
5. Date of commission of offence : 12.03.2011
6. Name and Parentage of accused : (1) Ram Vilas @ Harish S/o
Ram Dass, R/o RZD115, Nihal
Vihar, Delhi.
(2) Babli, W/o Late Mahender
Singh @ Jitender, R/o RZD115,
Nihal Vihar, Delhi.
7. Offence complained of : 302/201/182/193/506/34 IPC
8. Offence charged : 302/201/182/193/506/34 IPC
9. Plea of guilt : Pleaded Not Guilty
10.Final order : Acquitted
11. Date on which order reserved : 20.01.2016
12. Date on which order announced : 20.01.2016
FIR No.73/11 State vs. Ram Vilas etc. 1/35
-: 2 :-
BRIEF REASONS FOR DECISION :
CASE OF THE PROSECUTION :
1. Case of the prosecution as per the charge sheet is that on 12.03.2011, a PCR call vide DD No. 9/10A was received that outside H. No. 11D, Nihal Vihar, near Old Police Chowki, one boy is lying unconscious who was missing since last night and after receiving this information, ASI Dalbir Singh alongwith his staff reached at the spot and found a dead body and on inquiry, the name of the deceased was known as Mahender Singh S/o Ram Das. On cursory search, injury mark was found near the thumb and also found ligature marks on the neck. Crime team inspected the spot and dead body was sent to SGM Hospital Mortuary and statement of wife of deceased Smt. Babli was recorded. Babli stated that she alongwith her husband, children and brotherinlaw Ram Vilas and uncle Ashok Kumar is residing at H. No. 11D, Nihal Vihar and her husband is in the business of selling vegetables. She stated that her husband came to the house at around 11.00 pm, after selling the vegetables and took Rs. 500/ and one kilo weight and went out of the house. At around 5.00 am, someone knocked the door and she got up and she saw that her husband was lying dead in front of the house and FIR No.73/11 State vs. Ram Vilas etc. 2/35 -: 3 :- except underwear, there was nothing on the body of her husband. Pant and jacket were lying on the rehdi and chappal was also lying near the rehdi and her brotherinlaw (Devar) and his uncle took him inside the house and lied down on the bed and his landlord Amar Singh made the call to PCR and she stated that someone has killed her husband and after killing, he has been thrown out of her house and she prayed for necessary action.
2. Case u/s 302 IPC was registered and investigating was carried out.
During investigation, one Ashok Kumar, S/o Sh. Babu Ram met Insp. Mukesh Kumar and he told Insp. Mukesh Kumar that he is the eye witness in this case. On 29.03.2011, statement of Ashok Kumar u/s 164 Cr. PC was got recorded in the court of Sh. Murari Prasad Singh, Ld. MM and he stated that he had seen Ram Vilas and Bablu murdering Mahender Singh. On 20.03.2011, Ram Vilas @ Harish was arrested and his disclosure statement was got recorded. On 21.03.2011, coaccused Babli was also arrested and her disclosure statement was also recorded. Pillow, clothes and wire were recovered at the instance of accused which were seized. Insp. Mukesh Kumar also received the postmortem report from SGM Hospital, Mangol Puri. Further investigation was marked to Insp. Sehdev Kumar Rana and he took subsequent opinion regarding the electric wire. Exhibits were deposited in the FSL and FIR No.73/11 State vs. Ram Vilas etc. 3/35 -: 4 :- scaled site plan was prepared.
CHARGE:
3. After conclusion of investigation, charge sheet under section 302/201/182/193/506/34 IPC was filed. After compliance of section 207 Cr. P.C., case was committed to Sessions. During the course of trial, accused were charged for commission of offence punishable under Section 302/201/182/193/506/34 IPC by my Ld. Predecessor on 31.08.2011, to which, both accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. To prove its case, prosecution cited 28 witnesses and out of 28 witnesses, 25 witnesses were got examined followed by recording the statements of accused under Section 313 Cr.P.C. vide which accused claimed to be innocent but did not opt to lead evidence in their defence. PW Kishan and Bheem Singh were dropped by Ld. APP on 26.09.2011.
STATEMENTS OF BOTH THE ACCUSED:
5. Statements of accused persons were recorded wherein they have denied the case of the prosecution and stated that they are innocent and have been falsely implicated in this case.
FIR No.73/11 State vs. Ram Vilas etc. 4/35
-: 5 :-
DEFENCE EVIDENCE:
6. No defence evidence was led by accused persons.
ARGUMENTS /RELIANCE:
7. The record has been carefully and thoroughly perused . Submissions of Ld. Addl. PP for state and Ld. Counsel for accused have been heard. The respective submissions of either side as well as authorities relied by Ld. Counsel for accused have been considered.
8. Ld. Counsel for accused has relied on the following judgments:
1. Roop Chand Vs. State of Haryana 1990 (1) CLR 69
2. Prem Singh Vs. State 1996 Crl. LJ. 3604 (DELHI)
3. Pawan Kumar Vs. Delhi Admn. 1989 Cr. L.J. 0127 DEL.
4. Hem Raj Vs. State of Haryana AIR 2005 SC 2010
5. D.V. Shanmugham Vs. State of A.P. AIR 1997 SC 2658
6. Massa Singh Vs. State of Punjab 2000 (2) CC Cases HC 11
7. Chanan Singh Vs. State 1986 Crl. Rev. No. 720 (P&H) 94
8. Gurbel Singh Vs. State of Punjab 1991 Crl. Rev. NO. 504 (P&H)
9. Dhanpat Vs. State of Punjab 2000 (1) CC Cases HC 52.
10. Sahib Singh Vs. State of Punjab AIR 1997 SC 2417
11. Suraj Mal Vs. State AIR 1979 SC 1408 FIR No.73/11 State vs. Ram Vilas etc. 5/35 -: 6 :-
9. I have heard the arguments of Ld. Addl. P.P. for state and Sh. J.K. Srivastava, Ld. Counsel for accused persons. I have carefully perused the entire case file.
10.At the onset, it would be appropriate to have a glance at the gist of the deposition of the witnesses examined by the prosecution.
11. PW1 Amar Singh Fauji is the landlord of deceased and accused who called at 100 number.
12.PW 2 Savitri is the wife of landlord namely Amar Singh.
13. PW 3 Rakesh is one of the tenants of Amar Singh.
14. PW4 Dr. Manoj Dhingra conducted the postmortem on the body of Mahender Singh.
15. PW 5 ASI Dalbir Singh after receiving DD No. 10A, reached at RZ115D, Nihal Vihar, and saw the dead body and recorded the statement of Babli Ex. PW 5/A. On the basis of complaint, he prepared rukka Ex. PW 5/B and was sent to PS through Ct. Suresh for registration of FIR. He also removed the dead body for conducting the postmortem at Sanjay Gandhi Memorial Hospital Mortuary.
16. PW 6 Ct. Suresh Kumar alongwith ASI Dalbir singh also reached at the place of occurrence after receiving DD No. 10A.
17. PW 7 Ashok Kumar alongwith accused Ram Vilas @ Harish was sleeping in the front room and at about 04.30 am, accused Babli FIR No.73/11 State vs. Ram Vilas etc. 6/35 -: 7 :- knocked the door of their room and he and accused Ram Vilas @ Harish opened the gate of their room and then accused Babli opened the main gate and they found that Mahender @ Jitender was lying in front of the main gate and they took him inside the room.
18. PW 8 W/HC Sudesh on 12.03.2012 was posted as Duty Officer at PS Nihal Vihar who recorded the FIR Ex. PW 8/A and made endorsement on the rukka Ex. PW 8/B.
19. PW 9 Ct. Dinesh Kumar alongwith ACP Sh. Sandeep Bayala and Insp.
Mukesh Kumar went to the place of occurrence and certain articles were seized in his presence.
20. PW 10 Ct. Gautam Sah took a parcel of viscera alongwith sample seal to FSL Rohini.
21. PW 11 Ct. Sukhbir deposited sealed parcels to the FSL Rohini on 23.05.2011.
22. PW 12 HC Ram Avtar received certain parcels on 12.03.2011, 30.03.2011, 10.05.2011, 13.05.2011 and 23.05.2011 and made entry in register no. 19.
23. PW 13 SI Mahesh Kumar Draftsman prepared a scaled site plan Ex.
PW 13/A.
24. PW 14 Ct. Lakshmi was present on 21.03.2011 alongwith other police officials when accused Babli was apprehended, interrogated and FIR No.73/11 State vs. Ram Vilas etc. 7/35 -: 8 :- arrested.
25. PW 15 Sh. Murari Prasad Singh, MM, Karkardooma Courts recorded the statement of witness Ashok Kumar u/s 164 Cr. PC vide Ex. PW 7/A.
26. PW 16 Ct. Sukhram Pal on 12.03.2011 took the photographs of scene of crime vide Ex. PW 16/1 to Ex. PW 16/13 and negatives as Ex. PW 16/A1 to Ex. PW 16/A13.
27. PW 17 SI Kuldeep Shekhawat on 12.03.2011, inspected the scene of crime and prepared report Ex. PW 17/A.
28. PW 18 W/Ct. Samodi received a call from Mobile No. 9899158402 from Lal Singh regarding the deceased and she filled up the information in the form Ex. PW 18/A.
29. PW 19 Ct. Krishan Kumar took the accused to SGM Hospital on 20.03.2011 for medical examination.
30. PW 20 Dr. Mahipal Singh proved the MLC of Babli Ex. PW 20/A.
31. PW 21 SI Manoj was present alongwith the other police officials on 20.03.2011 when accused Ram Vilas was apprehended and when the pillow and wire were recovered at his instance.
32. PW 22 ASI Diwan Singh participated in the investigation when accused Ram Vilas was apprehended and articles were recovered.
33. PW 23 HC Rajesh received information on 12.03.2011 regarding the deceased.
FIR No.73/11 State vs. Ram Vilas etc. 8/35 -: 9 :-
34. PW 24 Insp. Sehdev Kumar Rana sent weapon of offence to SGM Hospital and he got prepared scaled site plan through SI Mahesh.
35. PW 25 Insp. Mukesh Kumar is the IO of the case.
Findings:
36. The case of the prosecution is that on 11.03.2011, at about 11.00 pm, at H. No. D115, Nihal Vihar, Delhi, both the above mentioned accused committed the murder of Mahender Singh and both had extended threats to Sh. Ashok Kumar if he disclosed the commission of offence and accused Babli gave false statement and both the accused in furtherance of their common intention caused the evidence of the commission of the offence to disappear and in order to prove its case, prosecution examined the following witnesses:
37. PW1 Amar Singh Fauji is the landlord of deceased who deposed that on 12.03.2011, at about 05.15 am, he reached home and saw that his wife and children were going outside the house and on inquiry, his wife told him that Mahender Singh, brother of accused Harish was seriously ill. He stated that he had given another portion of his house consisting of three rooms to Harish on rent on 01.03.2011 and Harish, his brother Mahender and his wife Babli alongwith their child were living in that portion. He deposed that on hearing the illness of Mahender, he went inside the room and Mahender was appearing to be seriously ill and FIR No.73/11 State vs. Ram Vilas etc. 9/35 -: 10 :- accused Harish was rubbing his feet and accused Babli was also present there. He called the doctor namely Kumar and after checking Mahender, doctor told him that Mahender had already died and he called police twice at 100 number. This witness was crossed examined at length and the relevant portion of the cross examination is as under:
" Harish had come to know for taking this house on rent on 28.02.2011. The behaviour of accused Harish towards me between these 12 days of his tanency was good. I had not seen Mahender and Harish quarreling with each other during the period of those 12 days. I had not seen Mahender and his wife Babli quarreling with each other during the period of those 12 days. I had not even seen Harish and Babli in compromising condition during the period of those 12 days".
38.PW 2 Savitri is the wife of landlord namely Amar Singh who deposed similar to that of PW 1. She deposed that on 12.02.2011 at about 05.00 am, accused Harish was shouting outside the house and was telling us to see as to what had happened to his brother Mahender. She stated that they were sleeping at that time and on hearing the noise of accused Harish, she got up and opened the gate of her house and in the meanwhile, her husband also returned from his duty. She deposed that her husband called the doctor and doctor told that Mahender had died and her husband intimated the police. This witness was cross examined and relevant portion is as under:
"I have not seen accused Harish quarreling with his brother Mahender at any point FIR No.73/11 State vs. Ram Vilas etc. 10/35 -: 11 :- of time during the period of 12 days. I did not go inside the rented premises as my husband had gone inside the house. I have not seen deceased Mahender in the state of unconsciousness. I have been told all these things by my husband Amar Singh. No police official has taken my statement at any point of time. I do not remember whether the police official has taken my signature on any documents".
39. PW 3 Rakesh is one of the tenants of Amar Singh who deposed that he is a tailor and knows Harish as he was the tenant of Amar Singh Fauji. He deposed that on 12.03.2011, he was sleeping on the roof of his house and at about 05.00 am, he woke up and saw from the roof of his house that Amar Singh Fauji was telephoning the police and he went downstairs. He saw that other neighbours had also collected there and police also reached there. He stated that he saw that brother of accused Harish who was lying unconscious on the bed and he had not seen the dead body of brother of accused Harish lying in the Gali outside their house.
40. PW4 Dr. Manoj Dhingra conducted the postmortem on the body of Mahender Singh on 12.03.2012 and his detailed postmortem report is Ex. PW 4/A. He deposed that on 10.05.2011, SHO Nihal Vihar moved an application Ex. PW 4/B for subsequent opinion on injury mark on the neck of the deceased with one black electric wire. After examination of the said wire and postmortem report, he and Dr. Deepak FIR No.73/11 State vs. Ram Vilas etc. 11/35 -: 12 :- Sharma opined that the said wire or any other such wire can produce the ligature mark mentioned in the postmortem report Ex. PW 4/A and was sufficient to cause death. Their detailed opinion in this regard is Ex. PW 4/C. This witness was crossed examined and in the cross examination, he deposed that the ligature marks can be caused by wire or chunni or rope or any such material.
41. PW 5 ASI Dalbir Singh after receiving DD No. 10A, at around 06.10 am, alongwith Ct. Suresh, reached at RZ115D, Nihal Vihar, and saw the dead body and recorded the statement of Babli Ex. PW 5/A. On the basis of complaint, he prepared rukka Ex. PW 5/B and was sent to PS through Ct. Suresh for registration of FIR. He also removed the dead body for conducting the postmortem at Sanjay Gandhi Memorial Hospital, Mortuary. He stated that he also called the crime team at the spot and crime team took photographs of the spot and also inspected the site. He stated that he got the dead body preserved and the application in this regard is Ex. PW 5/C and he also filled up the form for postmortem and the same is Ex. PW 5/D. After getting the postmortem conducted, he got the body identified by the relatives namely Babli and Ram Vilas and the identification is Ex. PW 5/E and Ex.PW 5/F. He stated that further investigation was handed over to Insp. Mukesh Kuamr and on his instruction, he collected the exhibits FIR No.73/11 State vs. Ram Vilas etc. 12/35 -: 13 :- and handed over the same to Insp. Mukesh Kumar who seized the same vide memo Ex. PW 5/G.
42. PW 6 Ct. Suresh Kumar was on emergency duty on 12.03.2011 and he alongwith ASI Dalbir Singh reached at the place of occurrence after receiving DD No. 10A and they found dead body of a male person lying inside the room and ASI Dalbir Singh inspected the dead body with his help and they found cut throwt injury and injury on the index finger on the right hand and on the directions of ASI Dalbir singh, he took the dead body to the mortuary of SGM hospital where postmortem on the dead body of deceased was got conducted and dead body was handed over to his relatives. He deposed that on 10.05.2011, he again joined the investigation and he deposited sealed parcel of electric wire with the concerned doctor and after the opinion, same was handed over to him.
43. PW 7 Ashok Kumar deposed that he has two sisters who are married and his sister namely Shakuntla was living with her husband at Mundka Village. He deposed that on 09.03.2011, he had come to Delhi to take his sister alongwith him to their native village and he had stayed at the house of his uncle namely Prem Pal at Nihal Vihar. He deposed that three brothers of his native village namely accused Harish @ Ram Vilas, Hetram @ Raju and deceased Mahender @ Jitender were also living in the rented house of Prem Pal and said house belongs to one FIR No.73/11 State vs. Ram Vilas etc. 13/35 -: 14 :- Amar Singh who was living adjoining to the house of Prem Pal. He stated that on 10.03.2011, he had gone to Mundka Village to meet his sister Shakuntla and had returned to the house of his uncle Prem Pal.On the next day i.e. 11.03.2011 he had again gone to the house of his sister Shakuntla at Mundka Village to take her alongwith him but she told him that she would go to Bareilly on 14.03.2011 and therefore, he again went back to the house of his uncle Prem Pal and stayed there in the night i.e. on the intervening night of 11/12.03.2011. He deopsed that on that night, deceased came to his house at about 11.00 pm after selling vegetables and at that time, he alonwith accused Harish @ Ram Vilas was present in the front room. When Jitender @ mahender knocked the door of front room, he opened the door and after having dinner, Jitender @ Mahender again went out for a walk. He deposed that in the meanwhile, he slept in the front room and at about 04.30 am, the accused Babli knocked the door of their room from the gallary and told accused Harish @ Ram Vilas that her husband Mahender @ Jitender had not returned home. At that time, he was in the same room, in which Harish @ Ram Vilas was sleeping. He stated that he and accused Harish opened the gate of our room and then accused Babli opened the main gate and they found that Mahender @ Jitender was lying in front of main gate. They first knocked the door of house of Amar Singh and FIR No.73/11 State vs. Ram Vilas etc. 14/35 -: 15 :- at that time, Amar Singh was on his duty, so nobody came out of his house. He deposed that he alongwith accused Harish and Babli lifted Jitender @ mahender and took him inside the inner room and at that time, they thought that Mahender @ Jitender was unconscious. He stated that in the meanwhile, Amar Singh also reached there and he called the doctor from nearby, who declared Jitneder @ Mahender dead.
This witness was cross examined by Ld. APP as he resiled from his earlier statement. In the cross examination by Ld. APP, he denied the suggestion that when Jitender went out the house in the night of 12.03.2014, accused Harish went to the room of accused Babli and deceased Jitender returned home and he saw accused Babli lying on the bed of accused Harish and on seeing this, deceased Jitender started fighting with accused Harish. He also denied the suggestion that on hearing the noise of fight, he came out of his room, and saw the fight and grappling. He also denied the suggestion of Ld. APP that Harish had caught hold Jitender @ Mahender and put deceased Jitender down on his bed or that accused Babli caught hold the legs of deceased Jitender or that accused Harish put a pillow on the mouth of deceased Jitender or that deceased Jitender somehow managed to remove the pillow and accused Harish then put a cloth around the mouth of FIR No.73/11 State vs. Ram Vilas etc. 15/35 -: 16 :- deceased Jitender and tied it and thereafter, accused Harish strangulated deceased Jitender with electricity wire on his neck and did not leave deceased till the time he died. He denied the suggestion of Ld. APP that both the accused persons took out the dead body of deceased and put it near the main gate of the house alongwith jacket, pant and sleepers of deceased. He denied that when they were coming back after doing so, accused Harish saw him when he coughed and at that time, Harish threatened him that he would kill him if he told the incident to anyone. He also denied that in the morning at about 04.30 am, accused Harish woke him up and told him to go out and knock the door of all the houses of locality and in the meanwhile, accused persons picked up the dead body of the deceased and put in the room in which, they had killed him and they started rubbing the feet of the dead body. This witness has denied the suggestion of Ld. APP that he had seen both the accused persons doing wrong and illegal activities on a bed.
44.PW 8 W/HC Sudesh deposed that she was posted as Duty Officer at PS Nihal Vihar and she recorded the FIR Ex. PW 8/A and made endorsement on the rukka Ex. PW 8/B.
45. PW 9 Ct. Dinesh Kumar deposed that he alongwith ACP Sh. Sandeep Bayala and Insp. Mukesh Kumar on 12.03.2011, went to the place of occurrence where ASI Dalbir Singh and Ct. Suresh were already FIR No.73/11 State vs. Ram Vilas etc. 16/35 -: 17 :- present. He stated that crime team inspected the site and thereafter, the dead body was sent to SGM Hospital for postmortem. Insp. Mukesh had also gone to the SGM Hospital and when he came back, Ct. Suresh returned at the spot alongwith the copy of FIR and original rukka and handed over the same to Insp. Mukesh. He stated that at about 04.30 pm, ASI Dalbir also returned at the spot and he handed over four sealed parcels to Insp. Mukesh Kumar who seized the same vide seizure memo Ex. PW 5/G. He stated that Raxine Jacket, one black color pant and a pair of black color chappal of deceased were converted into parcel and seized vide memo Ex. PW 9/A.
46. PW 10 Ct. Gautam Sah took a parcel of viscera alongwith sample seal to FSL Rohini.
47. PW 11 Ct. Sukhbir on 23.05.2011, deposited sealed parcels to the FSL Rohini.
48.PW 12 HC Ram Avtar received certain parcels on 12.03.2011, 30.03.2011, 10.05.2011, 13.05.2011 and 23.05.2011 and made entry in register no. 19.
49.PW 13 SI Mahesh Kumar deposed that on 12.05.2011, he was posted at Crime Branch as Draftsman and on that day on the request of Insp. S.K. Rana, he prepared a scaled site plan Ex. PW 13/A. FIR No.73/11 State vs. Ram Vilas etc. 17/35 -: 18 :-
50. PW 14 Ct. Lakshmi deposed that on 21.03.2011, she alongwith other police officials had gone to DBlock, Nihal Vihar, Delhi and accused Babli was apprehended, interrogated and arrested vide arrest memo Ex. PW 14/A and personally searched vide memo Ex. PW 14/B. She deposed that accused Babli made a disclosure statement Ex. PW 14/C and thereafter, she was taken to SGM Hospital for her medical examination.
51. PW 15 Sh. Murari Prasad Singh, MM, Karkardooma Courts deposed that on 19.03.2011, an application Ex. PW 15/A was marked to him and certain questions were put to the witness vide proceedings Ex. PW 15/B and thereafter, he recorded the statement of witness Ashok Kumar u/s 164 Cr. PC vide Ex. PW 7/A. He deposed that his certificate regarding correctness of the proceedings is Ex. PW 15/C and copy of statement was given to the IO on an application Ex. PW 15/D.
52. PW 16 Ct. Sukhram Pal on 12.03.2011 took the photographs of scene of crime vide Ex. PW 16/1 to Ex. PW 16/13 and negatives as Ex. PW 16/A1 to Ex. PW 16/A13.
53. PW 17 SI Kuldeep Shekhawat on 12.03.2011, inspected the scene of crime and prepared report Ex. PW 17/A.
54.PW 18 W/Ct. Samodi received a call from Mobile No. 9899158402 FIR No.73/11 State vs. Ram Vilas etc. 18/35 -: 19 :- from Lal Singh regarding the deceased and she filled up the information in the form Ex. PW 18/A.
55.PW 19 Ct. Krishan Kumar took the accused to SGM Hospital on 20.03.2011 for medical examination.
56. PW 20 Dr. Mahipal Singh proved the MLC of Babli Ex. PW 20/A.
57. PW 21 SI Manoj deposed that on 20.03.2011, he was present alongwith the other police officials and at about 05.45 pm, when they were present near Aggrawal Chowk, Nihal Vihar, one secret informer informed Insp. Mukesh Kumar that wanted accused will come at drainage and thereafter, at about 06.00 pm, one person was seen coming from the side of Saiyad Nangloi Village and on the pointing out of secret informer, he was apprehended, arrested and personally searched vide memos Ex. PW 21/A and Ex. PW 21/B respectively. He deposed that IO recorded his disclosure statement EX. PW 21/C and accused in pursuance to his disclosure statement, led police party to RZD115, Nihal Vihar, Delhi and from the loft (parchatti) of rear room of his house, he got recovered one wire. He also got recovered one pillow from the bed and one red spotted cloth and all these articles were seized vide memo Ex.PW 21/D. He deposed that on 21.03.2011, he again participated in the investigation and apprehended accused Babli and pillow, red color spotted cloth were exhibited as Ex. PW 21/E and FIR No.73/11 State vs. Ram Vilas etc. 19/35 -: 20 :- the wire as Ex. P1.
58.PW 22 ASI Diwan Singh deposed that on 20.03.2011, he participated in the investigation alongwith other police officials when accused Ram Vilas was apprehended and articles were recovered. He deposed similar to that of PW 21.
59. PW 23 HC Rajesh received an information on 12.03.2011 regarding the deceased and regarding some "tor phor" and he recorded this message in DD No. 10.
60.PW 24 Insp. Sehdev Kumar Rana deposed that on 10.05.2011, he was posted at PS Nihal Vihar as ATO and he had sent the weapon of offence i.e. plastic wire to SGM Hospital. He stated that on 12.05.2011, he got prepared a scaled site plan through SI Mahesh and on 13.05.2011, he had sent Ct. Gautam to deposit viscera to FSL, Rohini.
61. PW 25 Insp. Mukesh Kumar deposed that on 12.03.2011, he was posted at PS Nihal Vihar as Inspector, Investigation and on that day, a copy of DD NO. 10A was received by ASI Dalbir Singh regarding lying of a person in unconscious condition outside H. No. RZD115, Nihal Vihar, Delhi and he reached there. He saw the dead body and there were some ligature marks on the body of deceased and jacket, footwear and pant of deceased were lying outside the house. He deposed that ASI FIR No.73/11 State vs. Ram Vilas etc. 20/35 -: 21 :- Dalbir Singh and Ct.Suresh Kumar took the deceased to SGM Hospital. He stated that postmortem over the dead body was got conducted and the statement of wife of deceased namely Babli was recorded by ASI Dalbir Singh in the hospital. He deposed that ASI Dalbir Singh prepared a rukka on the basis of which, present case was got registered and after registration of the case, further investigation was assigned to him. He further deposed that he reached at the spot and from where, he took into possession, the jacket, pant and chappal of the deceased and articles were seized vide memo E.xPW 9/A. He stated that he drew a site plan Ex. PW 9/DB at the instance of ASI Dalbir Singh and he recorded the statements of crime team members who had already reached there. On 13.03.2011, he recorded the statements of public witnesses and on 19.03.2011, he recorded the statement of eye witness Ashok Kumar and the statement of Ashok Kumar u/s 164 Cr. PC was also got recorded. He stated that on 20.03.2011, accused Ram Vilas @ Harish was arrested and his disclosure statement Ex. PW 21/C was got recorded and in pursuance to his disclosure statement, pillow, piece of cloth and a wire were taken into possession and seized vide memo Ex. PW 21/D. He deposed that on 21.03.2011, coaccused Babli was arrested outside H. No. RZD115, Nihal Vihar, and her discosure statement Ex. PW 14/C was recorded.
FIR No.73/11 State vs. Ram Vilas etc. 21/35 -: 22 :-
62. Version of the eye witness namely Ashok Kumar:
As per the prosecution case, PW 7 Ashok Kumar is the eye witness in the present case and the relevant portion of his examination is as under:
" I am illiterate. I earn my livelihood by working in the fields in my native vilage mentioned above in Bareilly. I have two sisters who are married. My sister namely Shakuntala was living with her husband in Mundka village in a rented house. On 09.03.2011, I had come to Delhi to take my sister along with me to our native village. In Delhi, I had stayed at the house of my uncle namely Prem Pal at Nihal Vihar. I do not remember the address of the house of Nihal Vihar today. My uncle Prem Pal was residing in that house on rent. Three brothers of my native village namely accused Harish @ Ram Vilas present in court, Het Ram @ Raju and deceased Mahender @ Jitender were also living in the rented house of Prem Pal. Accused Harish along with his brother Het Ram @ Raju along with his family were living on the ground floor in the rooms ituated on the back side and deceased Mahender @ Jitender along with his family were living on the first floor of that house. Accused Babli present in the court is wife of accused Jitender @ Mahender. The said house belongs to one AmarSingh who was living adjoining to the rented house of Prem Pal.
On 10.03.2011, I had gone to Mundka village to meet my sister Shakuntala and had return to the house of my uncle Prem Pal. On the next day i.e. on 11.03.2011, I had again gone to the house of my sister Shakuntala at Mundka village to take her along with me to my native village at Bareilly. At that time, she told me that she would go to Bareilly on 14.03.2011, so I again went back to the house of my uncle Prem Pal and stayed there in the night i.e. on the night intervening 11/12.03.2011. Deceased FIR No.73/11 State vs. Ram Vilas etc. 22/35 -: 23 :- Jitender @ Mahender used to sell vegetables. On that night, deceased came to his house at about 11.00 pm after selling vegetables. At that time, I alongwith accused Harish @ Ram Vilas were present in the front room. When Jitender @ Mahender knocked the door of front room, I opened the door. After having dinner Jitender @ Mahender again went out for a walk. In the meanwhile, I slept in the front room. At about 04.30 am, accused Babli knocked the door of our room from the gallery and told accused Harish @ Ram Vilas that her husband Mahender @ Jitender had not returned home. At that time, I was in the same room in which Harish @ Ram Vilas was sleeping. I and accused Harish opened the gate of our room and then, accused Babli opened the main gate and we found that Mahender @ Jitender was lying in front of main gate. We first knocked the door of house of Amar Singh. At that time, Amar Singh was on his duty, so nobody came out of his house. I alongwith accused Harish and Babli lifted Jitender @ Mahender and took him inside in the inner room. At that time, we thought that Jitender @ Mahender was unconscious. In the meanwhile, Amar Singh also reached there and he called doctor from nearby. The doctor declared Jitender @ mahender dead. Amar Singh also called the police at number 100. Police reached there. We were removed from that room and dead body of Jitender @ Mahender was also removed from there. My statement was recorded in the hospital. Police also recorded my statement on 19.03.2011 and my statement was also recorded by Magistrate".
This witness was cross examined by Ld. APP and the relevant portion is as under:
"It is wrong to say that when Jitender went out of the house in the night of 12.03.2011, accused Harish went to the room of accused Babli or that deceased FIR No.73/11 State vs. Ram Vilas etc. 23/35 -: 24 :- Jitender returned home or that he saw accused Babli lying on the bed of accused Harish or that on seeing this deceased Jitender started fighting with accused Harish or that on hearing the noise of fight, I came out of my room and saw the fight and grappling and I did not state so before Magistrate and police. It is wrong to say that I saw that accused Harish had caught hold of Jitender @ Mahender and put deceased Jitender down on bed or that accused Babli caught hold of legs of deceased Jitender or that accused Harish put a pillow on the mouth of deceased Jitender and tied it or that thereafter, accused Jitender strangulated deceased with electricity wire on his neck or that accused Harish did not leave deceased till the time deceased Jitender died and I did not state so before Magistrate and police. I did not state before police that accused Harish sat on the body of deceased Mahender. It is wrong to say that both the accused persons took out the dead body of deceased and put it near the main gate of the house alongwith Jacket, pant and slippers of deceased or that when they were coming back after doing so, accused Harish saw me when I coughed or that at that time accused Harish threatened me that he would kill me if I told the incident to anybody or that I was feeling scared and went back to my room or that accused Harish also reached my room. It is wrong to say that in the morning at about 04.30 am, accused Harish woke me up and told me to go out and knock the door of all the houses of locality or that in the meanwhile accused persons picked up the dead body of the deceased in the room in which they killed him or that they took my assistance also in lifting the dead body of deceased or that accused Harish instructed me that if anybody comes, I should start rubbing the feet of dead body of deceased to avoid suspicion so I started the rubbing the feet of dead body of deceased when Amar Singh his wife and two sons came and I did not state so before FIR No.73/11 State vs. Ram Vilas etc. 24/35 -: 25 :- the police and Magistrate. It is wrong to say that I had seen both the accused persons doing wrong and illicit activities on a bed or that whenever deceased Mahender used to go out of the house, accused Harish used to enter in the room of accused Babli. It is wrong to say that I gave correct statement to the police and Magistrate as I saw with my own eyes. It is wrong to say that today I am deliberately not supported the case of the prosecution as I have been won over by the accused persons or that today I am not telling the truth in the court under the pressure of accused persons. I had not seen the clothes and chappals of deceased. It is wrong to say that I had seen the clothes and chappals of deceased in the night of 12.03.2011 or that I deliberately do not want to identify the same today in the court being won over by the accused persons. It is wrong to say that both the accused persons present in court had killed deceased in my presence. It is wrong to say that I am deposing falsely".
This witness was cross examined by Ld. Defence Counsel and relevant portion of cross examination is as under:
"It is correct that I had come to Delhi to bring Shakuntala my sister to my home town. I could not take back my sister Shakuntala to my home town. On 12.03.2011, my statement was taken by the police. I was asked by the police to stay and to give statement what they are telling to me. Police used to confine me in the PS and threatened me to give statement as per their direction. I was beaten by the police in the PS. I was taken by the police on 19.03.2011 before the Magistrate. Before getting recorded my statement in the court on 19.03.2011, I was threatened by the police to say before the Ld. MM whatever has been told to me by the police only and no other thing".
63. PW 1 Sh. Amar Singh Fauji is stated to be the landlord of the premises FIR No.73/11 State vs. Ram Vilas etc. 25/35 -: 26 :- in question where the deceased and accused persons were residing. He deposed that he had neither seen deceased Mahender and accused Harish quarreling with each other nor seen Mahender and Babli quarreling with each other. He had also not seen Harish and Babli in compromising position during the period of 12 days. The statement of PW 2 Smt. Savitri, w/o Sh. Amar Singh is similar to that of Amar Singh.
64. PW 4 Dr. Manoj Dhingra, conducted the postmortem on the body of deceased Mahender and he deposed that he alongwith Dr. Deepak Sharma gave the opinion on injury mark on the neck of the deceased and they opined that the said wire or any other such wire can produce the ligature mark and was sufficient to cause death. In the cross examination, he deposed that the ligature mark could be caused by wire or chunni or rope or any such material.
65.PW 21 SI Manoj, PW 22 ASI Diwan Singh and PW 25 Insp. Mukesh Kumar are the witnesses to recovery and they all deposed that on the pointing out of secret informer, they arrested accused Ram Vilas and Babli and in pursuance to disclosure statement, Ram Vilas got recovered wire, pillow and one red color cloth from the parchatti. It is admitted by all the above mentioned witnesses that at the time of recovery and arrest, certain witnesses were present. As per the version FIR No.73/11 State vs. Ram Vilas etc. 26/35 -: 27 :- of SI Manoj, one Ashok was present and as per the version of PW 25 Insp. Mukesh Kumar, Amar Singh (landlord) was present at the time of arrest and recovery but both the persons were not made witnesses of arrest and recovery. It is a settled law that if the witnesses are present at the time of arrest and recovery and they are not made a witness, then the recovery and the arrest is doubtful. In ROOP CHAND VS. STATE OF HARYANA 1990 (1) CLR 69 it was observed that such explanations are unreliable.
In case of PREM SINGH VS. STATE 1996 CRI. L. 3604 (DELHI) and in case of PAWAN KUMAR VS. DLEHI ADMN. 1989 CRLJ 0127 DEL, it has been observed as under: "Kalam Singh has to admit that at the time of arrest and recovery of knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalan Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7:30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no FIR No.73/11 State vs. Ram Vilas etc. 27/35 -: 28 :- impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused". In the case of "Hem Raj Vs State of Haryana" AIR 2005 SC 2010, it has been observed that : "The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a FIR No.73/11 State vs. Ram Vilas etc. 28/35 -: 29 :- serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Nonexamination of independent witness by itself may not given rise to adverse inference against the prosecution. However, when the evidence of the alleged eye witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "D.V.Shanmugham Vs State of A.P" AIR 1997 SC 2658", it has been observed as under: "It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation, the prosecution case has to be scrutinized with more care and caution".
In the case of "Massa Singh Vs State of Punjab" 2000 (2) CC Cases HC 11, FIR No.73/11 State vs. Ram Vilas etc. 29/35 -: 30 :- conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under: "The recovery has been effected from a public place. The investigating officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought. In the cases of "Gurbel Singh Vs State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs State of Punjab" 2000 (1) CC Cases HC 52, it has been held that nonjoining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit .of doubt.In the case of "Sahib Singh Vs State of Punjab" AIR 1997 SC 2417, it has been held as under:
66. "Having gone through the record, we find much substance in each of the above contentions. Before conducting a search, the concerned police FIR No.73/11 State vs. Ram Vilas etc. 30/35 -: 31 :- officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case, it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities, the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, if would affect the weight of evidence of the Police Officer, though not its admissibility."
67. As per the prosecution case, PW 7 Ashok Kumar is the eye witness to the murder but when he was examined, he did not support the prosecution story and he stated that he was beaten by the police in the police station. He stated that he was taken by the police to police station on 19.03.2011 before the Magistrate before getting recorded his statement in the court on 19.03.2011 and he was threatened by the police to say before the Magistrate whatever has been told by the police only. From the statement of PW 7 Ashok Kumar, it is clear that his statement u/s 164 Cr. PC before the Magistrate was not voluntarily and he was making the statement under threat of the police officials, FIR No.73/11 State vs. Ram Vilas etc. 31/35 -: 32 :- therefore, the statement u/s 164 Cr. PC cannot be relied upon.
68. More so, the statement recorded u/s 164 Cr. PC is not substantive piece of evidence and it can be used only to corroborate or contradict that witness. It is held by Hon'ble Supreme Court in State of Delhi Vs. Shri Ram Rohiya AIR 1960 SC 490 (V 47 C 83) that a Judge commits an error of law in using the statement of a witness u/s 164 Cr. PC as a substantive evidence in coming to the conclusion that he had been won over. So far as the cross examination by Ld. APP is concerned, PW 7 Ashok has denied that accused Harish went to the room of accused Babli or decease saw accused Babli lying on the bed of accused Harish. He also denied the suggestion that accused Harish caught hold decease Mahender and put him down and he put a pillow on the mouth of deceased and accused Babli caught hold his legs. He also denied the suggestion that accused Harish strangulated deceased Mahender @ Jitender with wire on his neck and not left him till the time he died. PW 7 stated that when Babli knocked the door at 04.30 am and telling that her husband had not returned home, he was in the same room in which Harish @ Ram Vilas was sleeping. He stated that his statement was recorded on 12.03.2011 by the police and he was told by the police officials to stay and make the statement as per their wish.
FIR No.73/11 State vs. Ram Vilas etc. 32/35 -: 33 :-
69.PW 7 is the eye witness and most important witness for the prosecution but he did not support the case of the prosecution and Ld. APP sought permission to cross examine this witness and permission was granted and the witness was cross examined by Ld. APP but nothing fruitful came out for the prosecution.
70.I have heard arguments at length. I have also given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and precedents on the point.
71. In the light of aforesaid nature of deposition of PW 7 Ashok Kumar, landlord PW 1 namely Amar Singh Fauji and his wife PW 2 Savitri, who are the material witnesses, I am of the considered view that their deposition cannot be treated as trustworthy and reliable. Reference can be made to the judgment titled as Suraj Mal vs. The State (Delhi Administration), AIR 1979, SC, 1408 wherein the Hon'ble Supreme Court has observed that "Where witness make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witness;"
FIR No.73/11 State vs. Ram Vilas etc. 33/35
-: 34 :-
Similar view was also taken in the judgment reported as Madari
@Dhiraj and others vs. State of Chattisgarh, 2004 (1) CCC 487.
72.Consequently, no inference can be drawn that the accused persons have committed the murder of Mahender @ Jitender with wire and there is no material on record to suggest that accused Ram Vilas and Babli were having illicit relations or Babli gave any false statement to the police or both accused caused the evidence of the commission of offence to disappear or accused threatened Ashok Kumar to his life. No case is made out against both the accused as there is no incriminating evidence against them.
73.The material and evidence on record do not bridge the gap between "May be true and must be true", so essential for the court to cross, while finding the guilty of an accused, particularly in cases where the alleged eye witness claimed that both the accused are innocent and have not committed any offence. Even otherwise no useful purpose would be served by adopting any hyper technical approach in the issue.
74. Consequently, no inference can be drawn that both the accused are guilty of charge for the offence punishable under Section 182/193/201/302/506/34 IPC. There is no material on record that on 12.03.2011 at H. No. D115, Nihal Vihar, Delhi at about 11.00 p.m., both the accused committed the murder of Mahender @ Jitender.
FIR No.73/11 State vs. Ram Vilas etc. 34/35 -: 35 :-
75.Therefore, in view of the above discussion, the court is satisfied that the prosecution has failed to prove the case against both the accused namely Ram Vilas and Babli for the offence under Section 182/193/201/302/506/34 IPC.
76.The accused Ram Vilas @ Harish and Babli are hereby acquitted of the charge for the offence under section 182/193/201/302/506/34 IPC.
77. After the completion of formalities and expiry of the period of limitation for appeal, the file be consigned to record room. Announced in the open court today i.e. 20.01.2016 (Rakesh KumarII) Additional Sessions Judge03, West District, Delhi.
FIR No.73/11 State vs. Ram Vilas etc. 35/35