Delhi District Court
State. vs 1. Jai Singh S/O Bhoop Singh, on 27 January, 2011
IN THE COURT OF PRAVEEN KUMAR, ADDITIONAL
SESSIONS JUDGE: DWARKA COURTS: NEW DELHI.
SC No: : 60/2009,
FIR No: : 283/2004,
Police Station: : Najafgarh,
Under Sections: : 302/201/120B/34 IPC.
STATE. Versus 1. JAI SINGH S/o BHOOP SINGH,
H.No.49, SAINIK ENCLAVE,
PARTII, NAJAFGARH, DELHI,
2. NARENDER @ BABLU S/o
BHOOP SINGH,r/o H.NO.49,
SAINIK ENCLAVE, PARTII,
NAJAFGARH, DELHI,
3. RAJNEESH @ VICKY S/O
NARENDER,r/o VILLAGE
KABULPUR, P.S ROHTAK
SADAR, DISTT ROHTAK,
HARYANA,
4. SUSHILA @ SHEELA W/o SH
SURESH KUMAR, r/o RZ5253,
BABA HARIDAS NAGAR
COLONY, NAJAFGARH, DELHI.
Date of institution of case: : 03.09.2004,
File received by transfer: : 18.05.2009,
Date of reserving judgment: : 07.01.2011,
Date of pronouncement of judgment: : 27.01.2011.
Sessions Case No.60/2009. Pages 1/27
JUDGMENT
1. Accused were arrested by the Police of Police Station, Najafgarh and were challaned to the Court for trial for the commission of the offences punishable under Sections 302/201/120B/34 IPC.
2. In nutshell, the case of the prosecution is that on 18.05.2004 on receiving DD No.8A, S.I. S.S.Yadav along with Constable Abhey Singh reached Ganda Nala, Dichaon Village and they found one male dead body lying in the drain. One pair of chappal and one scooter having blood stains were also lying near the dead body. No eye witness was present at the spot. The Crime Team was called. In the meantime, Inspector H S Meena along with Constable Rakesh reached there. S.I. S.S.Yadav prepared the rukka and handed over the same to Constable Rakesh for registration of the case. The photographs of the place of occurrence were taken and two chance prints were lifted from the right handle of the scooter. After registration of the case, the investigation was marked to Inspector H S Meena who prepared the Site Plan at the instance of S.I. S.S Yadav. The deceased was formally searched whereupon his name was revealed as 'Suresh' and documents i.e I.D Card, one ration card and one note addressed to SHO, Najafgarh were recovered from Sessions Case No.60/2009. Pages 2/27 his possession. Mahavir Singh (brother of deceased) and Sanjeev (nephew of deceased) also reached the spot and they identified the dead body. The physical clues i.e one pair of chappal, earth control and two wheeler scooter were lifted from the spot and the same were seized by the police.
3. During further investigation, on 19.05.2004 on the basis of secret information, accused Jai Singh was arrested. At the instance of accused Jai Singh, accused Narender and Rajneesh were arrested. They got recovered blood stained cloth from their respective houses. On the same day, accused Sushila was arrested from her house and her disclosure statement was recorded to the effect that she was having illicit relations with accused Jai Singh and her husband used to object to it. She planned to eliminate her. Accused Jai Singh agreed to eliminate Suresh for Rs.20,000/ and Rs.4500/ were given in advance to accused Jai Singh. In her disclosure statement, accused Sushila further stated that she also arranged one mobile phone and one motorcycle for the said purpose of eliminating her husband.
4. It is further the case of the prosecution that accused Sushila got recovered one mobile phone make Nokia and one motor cycle, which were used in committing the offence, from her house. On 25.05.2004, the accused Jai Singh was taken on police remand and he got recovered one danda with blood stains from a Sessions Case No.60/2009. Pages 3/27 distance of 400 meters from the place of occurrence and the same was also seized by the police.
5. In the course of further investigation, the postmortem was conducted on the body of Suresh. The admitted handwritings of deceased Suresh were handed over by Mahavir Singh to I.O. I.O also himself collected the admitted handwriting of deceased Suresh from SBI Branch, CRPF, Jharoda Kalan, New Delhi. A handwritten letter/complaint addressed to SHO, Najafgarh was recovered from the pocket of deceased Suresh wherein he suspected threat to his life from accused Sushila, Attar Singh and Ravinder. The admitted handwriting and the said letter/complaint were sent to FSL. The ownership of vehicle i.e two wheeler scooter no. DDN6648 and motorcycle were verified. The call details were collected. The subsequent opinion regarding the weapon of offence was obtained from the Doctor. On completion of the investigation and after conducting other necessary formalities, charge sheet was filed in Court.
6. After supplying the copies of documents to the accused, Ld Metropolitan Magistrate committed the present case to the Court of Sessions. In fact the charge sheet was prepared against the present four accused persons and two others namely Attar Singh and Ravinder Singh. Accused Attar Singh and Ravinder Singh were kept in column no.2 of the charge sheet. Sessions Case No.60/2009. Pages 4/27
7. On the above allegation, charge was framed against the accused Jai Singh, Narender, Rajneesh and Sushila on 15.10.2004 for having committed offences punishable under Sections 302/201/120B/34 IPC. All the accused persons pleaded not guilty and claimed trial. They were accordingly put to trial.
8. Trial proceeded and in the course of trial, the prosecution in order to substantiate its case against the accused persons, examined forty three witnesses in all.
9. PW1 Sanjeev Kumar identified the dead body of the deceased. PW2 Dev Raj was the owner of scooter no.DDN4468. He testified that the said scooter was sold by him to one Ram Avtar ten years prior to the incident. However, he could not produce documentary proof in this regard. PW3 W.HC Santosh proved the copy of the FIR as Ext.PW3/A and DD No.2A as Ext.PW3/B. PW4 Veermati is the sisterinlaw (Jethani) of accused Sushila. She is a witness to extra judicial confession made by accused Suhila to her. PW5 Rakesh testified that on 17.05.2005 he handed over a mobile phone to Suresh (deceased) which was returned to him on next day by Jai Singh. He proved the seizure memo as Ext.PW5/B in this regard. PW6 Mahavir Singh is the brother of the deceased Suresh. He is a witness of last seen. The blood stained clothes were recovered in his presence at the instance of accused persons. PW7 Ram Avtar is Sessions Case No.60/2009. Pages 5/27 the subsequent buyer of scooter no.DDN.4468. PW8 Dharamvir informed the police after he discovered the dead body at a nala near his field. PW9 Constable Jaipal Singh joined the investigation with I.O Inspector H S Meena. PW10 is Poonam Dahiya. The deceased Suresh was her maternal uncle. She testified that she had seen accused Jai Singh and Sushila in a compromising position.
10.PW11 Gyan Chand also remained the owner of scooter no.DDN4468 having purchased the same from PW7 Ram Avtar. PW12 Constable Dharam Pal proved the DD No.8A as Ext.PW12/A. PW13 Constable Abhey Ram accompanied the initial IO S.I. S.S.Yadav for going to the spot. PW14 Constable Rajesh joined the investigation with Inspector H S Meena. He took the rukka to Police Station for registration of the FIR. PW15 Constable Sunder Lal was the photographer with the Crime Team and he proved the photographs as Ext.PW15/1 to Ext.PW15/13. PW16 Dr Ajay Makku proved the document Ext.PW16/A regarding the treatment of accused Sushila. PW17 Constable Sunil Dutt is a witness of recovery of blood stained clothes and danda. PW18 ASI Mukesh was employed with CRPF. He identified the handwriting as Ext.PW18/A to Ext.PW18/D of deceased Suresh. PW19 Jawahar Lal was the Record Keeper from RTO, Sarai Kale Khan. He proved the Sessions Case No.60/2009. Pages 6/27 ownership of scooter no.DDN4468. PW20 Sh Gulshan Arora was the Nodal Officer. He proved the call details of mobile phone no.9811796548 for the period from 01.05.2004 to 12.07.2004 as Ext.PW20/A.
11.PW21 ASI Chinta Ram proved the DD No.8A as Ext.PW21/A. PW22 Constable Subhash was the special messenger who delivered the copies of the FIR to Illaqa Magistrate and other Senior Police Officers. PW23 HC Banwari Lal was Malkhana Moharrir who proved the relevant entries in register no.19 as Ext.PW23/A to Ext.PW23/C. PW24 Lady Constable Krishna is a formal witness. In her presence accused Sushila was arrested. PW25 Constable Manoj accompanied the I.O Inspector H.S.Meena on 07.06.2004 to DDU Hospital for seeking subsequent opinion regarding weapon of offence. PW26 Mahesh Kumar proved the scaled Site Plan as Ext.PW26/A. PW27 Constable Jai Bhagwan deposited the thirteen sealed pullandas at FSL, Rohini. PW28 S.I. S.S.Yadav was the initial I.O of the case. He proved the rukka as Ext.PW28/A. PW29 H.C Balwant Singh was with Crime Team. He lifted two chance prints from right side handle of the scooter and proved his report as Ext.PW29/A. PW30 HC Bhagwat was the Wireless Operator and had received the PCR call.
12.PW31 R K Singh, Nodal Officer proved the call details of Sessions Case No.60/2009. Pages 7/27 mobile phone no.9871481857 as Ext.PW31/A. PW32 Lal Bahadur, UDC proved the records from the Food & Supply Department as Ext.PW32/A. PW33 Sh Brahmanand was the Manager from SBI who handed over the account opening form Ext.PW33/A to Inspector H S Meena. PW34 HC Virender Kumar joined the investigation with I.O and in his presence account opening form was seized. PW35 ASI Roop Chand verified the ownership of the motorcycle bearing registration no.UP21A8966. PW36 Inspector H.S Meena was the IO of the case. PW37 Dr Rajender Kumar, Assistant Director, Biology, FSL, Rohini proved his report as Ext.PW37/A. PW38 SI Gajanand received information and filled in the PCR Form. PW39 B L Singh was the Nodal Officer from MTNL. He proved the call details of mobile phone no.9868481311. PW40 Ms Deepa Verma, Assistant Director, Documents, FSL proved her report as Ext.PW40/A. PW41 Sanjay Kumar Jha, Finger Print Expert proved his report as Ext.PW4/A. PW42 B S Sangwan identified the I.Card issued to the deceased Suresh as Ext.PW42/A. PW43 Dr Ms Pooja Rastogi proved the postmortem report as Ext.PW43/A and her subsequent opinion as Ext.PW43/B.
13.The statements of accused persons under Section 313 Cr P C were recorded when a chance was given to explain the Sessions Case No.60/2009. Pages 8/27 incriminating evidence against them. Accused denied the case of the prosecution in its entirety and claimed that they have been falsely roped in the present case. Accused Sushila further pleaded that she has been falsely implicated at the instance of the persons who were having an evil eye on the properties of her husband. The accused, however, did not adduce evidence in their defence.
14.I have heard Ld APP for the State, Sh.L.K.Verma, Ld counsel for accused Jai Singh, Narender and Rajneesh and Sh S.P.Kaushal, Ld counsel for accused Sushila. With their help I have scanned the entire evidence, oral and documentary, on record. Ld APP contended that accused Jai Singh, Narender and Rajneesh were seen by PW6 Mahavir in the company of deceased on 17.05.2004 at about 9 p.m and in the morning of 18.05.2004 the body of deceased Suresh was found lying in a drain near Dichaon Village, New Delhi. Thus, PW6 Mahavir was a witness of last seen. PW4 Veermati has proved the extra judicial confession made by accused Sushila to her. PW10 Ms Poonam has testified to the effect that deceased Suresh was aware of Sushila's illicit relations with many people and she (PW10) had seen Sushila with accused Jai Singh in a compromising position once. Accused Jai Singh, Narender and Rajneesh got recovered blood stained clothes worn by them at Sessions Case No.60/2009. Pages 9/27 the time of incident and accused Sushila got recovered one motorcycle and one mobile phone which were used in the crime. From the letter recovered from the possession of the deceased, it is clear that deceased Suresh was apprehending threat to his life from accused Sushila. The handwriting of Suresh on the said letter has been proved by PW40 Ms Deepa Verma. The danda used for committing the offence was recovered at the instance of accused Jai Singh. There was no previous enmity between the accused persons and PW4 and her husband PW6. According to Ld APP the chain is complete and all the accused persons are liable to be convicted.
15.On the other hand, Ld counsel for the accused persons contended that testimony of PW4, PW6 and PW10 is not creditworthy as there are contradictions and omissions in their statements. The present case is based on circumstantial evidence as there is no eye witness to the incident. The chain of circumstances is not complete and the guilt of the accused has not been established by the prosecution beyond reasonable doubt. The witnesses of 'last seen' & 'motive' are highly interested witnesses and no independent witness has been cited or produced to substantiate the charges against the accused persons. The postmortem report as regards the time of death does not support the prosecution case. In support of their Sessions Case No.60/2009. Pages 10/27 contentions, Ld counsel Sh L K Verma has relied upon judgments Ram Reddy Vs State 2006 (2) LRC 150 SC, Babudeen Vs State 2009 (4), Chandigarh Criminal Cases 413, Dalip Ram Vs State 2007 (2) LRC 322, Shiv Narain Vs State 2001 (2) CCC 368, Rajesh Vs State 2008 (4) CCC 227, Keshav Vs State 2008 (1) LRC 85, Dinesh Kumar Vs State 1998 (2) CCC 46, Renu Vs State 2008 (4) crimes 241, Bhagat Vs State 1996 (2) CC 66, Pritam Singh Vs State 1998 (1) JCC 94, Kunju Vs State 2003 (3) JCC 1549. While Sh S.P.Kaushal, Ld counsel for accused Sushila has relied upon judgments Virender Kumar Yadav Vs State 1995 (3) AD (Delhi) 657, C.K.Ravinderan Vs State 2000 Criminal Law Journal 497, State Vs M V Mahesh 2003 (5) SRJ 330, Krishan Vs State 2008 (3) CC Cases 217, Mushir Vs State 2010 (2) CC Cases (SC 75, Sita Ram Vs State 2010 (1) LRC 359, Chander Prakash Vs State 2010 (3) CC Cases (HC) 358, Munni Lal Vs State 1989 Criminal Law Journal 1585, Inspector of Police Vs Bala 2008 (VIII) AD (SC) 381 and Babu Vs State 2010 (VIII) AD (SC) 497.
16.The material witnesses in this case are PW4 Beermati, PW5 Rakesh, PW6 Mahavir Singh, PW9 Constable Jaipal, PW10 Sessions Case No.60/2009. Pages 11/27 Poonam Dahiya, PW13 Constable Abhey, PW17 Sunil Dutt, PW28 S.I. S.S.Yadav, PW40 Ms Deepa Verma and PW43 Dr Ms Pooja Rastogi on whose testimony the prosecution case rests. All other remaining witnesses are formal in nature and do not connect the accused persons directly with the alleged offences. Their testimony is basically to support the deposition of other witnesses to complete the chain as the present case is not a case of any direct evidence. The entire case is based on circumstantial evidence.
17. PW4 Beermati is the wife of elder brother (Mahavir) of deceased Suresh. She testified that on 19.05.2004 she went to the house of Sushila who took her in another room and disclosed that murder of her husband Suresh was committed by Jai Singh, Rajneesh and Narender at her instance. She further testified that accused Sushila requested for saving her. In her crossexamination PW4 admitted that in the intervening night of 18/19th May, 2004 she stayed with Sushila but on the said night she did not reveal anything to her. She further admitted in her crossexamination that deceased Suresh and Jai Singh were on visiting terms and the name of accused Rajneesh @ Vicky was revealed to her by Sushila for the first time.
18.PW5 Rakesh has not supported the prosecution story. He was crossexamined at length by Ld APP but nothing incriminating Sessions Case No.60/2009. Pages 12/27 has come out on record against the accused persons in his testimony.
19.PW6 Mahavir Singh is the elder brother of deceased Suresh. He testified that on 17.05.2004 at about 9 p.m when he was returning to his house, he saw his brother Suresh in the company of accused Jai Singh, Narender and Rajneesh near Kalan ka Dabha. He asked his brother as to why he was standing there. His brother replied that he had to take money from a person residing at Dichaon Kalan Village. Accused Jai Singh and Suresh (deceased) were on a two wheeler scooter while accused Narender and Rajneesh were on a motorcycle. On 18.05.2004 he received a telephonic call regarding murder of his brother whereupon he reached the spot and identified his dead body. He further testified that on 19.05.2004 accused Jai Singh was apprehended and he (Jai Singh) got recovered blood stained clothes from his house which were seized vide memo Ext.PW6/B. At the instance of accused Jai Singh, accused Narender and Rajneesh were arrested and they also got recovered the blood stained clothes from their respective houses which were seized vide memos Ext.PW6/C and Ext.PW6/D. On 19.05.2004 he along with police officials went to the house of accused Sushila. Accused Sushila got recovered a mobile phone make 'Samsung' and one motorcycle which were seized by the Sessions Case No.60/2009. Pages 13/27 police. On 21.05.2004 he went to Police Station. The accused Jai Singh was on police remand and he led the police party to the place of occurrence and got recovered a danda having blood stains which was used in committing the offence. He proved the seizure memo of danda as Ext.PW6/G. On 25.05.2004 he handed over the admitted handwriting of deceased Suresh to the police officer.
20.PW9 Constable Jaipal testified that on 18.05.2004 he along with Inspector H S Meena reached the spot. The earth control, one pair of chappal and pieces of wall were seized by the I.O in his presence vide memos Ext.PW9/A to Ext.PW9/C respectively. The scooter lying near the spot was also seized vide memo Ext.PW9/D. In his crossexamination PW9 admitted that around twenty to twenty five public persons had gathered at the spot. He further admitted that from the search of the deceased I.Card, ration card and a letter/complaint addressed to the SHO were recovered. In his crossexamination, he admitted that in his presence no road test of the said scooter was taken.
21. PW10 is Ms Poonam Dahiya. The deceased Suresh was her maternal uncle. She testified that on 15.05.2004 deceased Suresh came to the house of Mahavir and he told her that he was upset because accused Suhila was having illicit relations with many people. She further testified that she had seen Sessions Case No.60/2009. Pages 14/27 accused Sushila in a compromising position with accused Jai Singh prior to the incident and at that time Sushila felt sorry for her act and promised not to repeat it again. In her cross examination she admitted that she did not tell about the alleged incident of accused Sushila in a compromising position with accused Jai Singh to any person during the period of two/three years prior to the death of Suresh.
22.PW13 Constable Abhey Ram joined the investigation with S.I. S.S.Yadav. During formal search of the deceased one I card, ration card and a letter addressed to SHO, Najafgarh were recovered which were seized vide memo Ext.PW13/A. In his crossexamination, he admitted that number of persons had gathered at the spot.
23.PW17 Constable Sunil Dutt joined the investigation with I.O. He testified that on 19.05.2004 accused Jai Singh was arrested from his house vide arrest memo Ext.PW17/A. He proved the personal search memo and disclosure statement of accused Jai Singh as Ext.PW17/B and Ext.PW17/C respectively. He further testified that pursuant to the disclosure statement, blood stained clothes were recovered from the house of accused Jai Singh and they were seized vide memo Ext.PW6/B. At the instance of accused Jai Singh, accused Rajneesh and Narender were arrested and their disclosure statements were recorded. The Sessions Case No.60/2009. Pages 15/27 blood stained clothes were also recovered from the respective houses of accused Narender and Rajneesh pursuant to their disclosure statements. PW17 further testified that accused Sushila was arrested in his presence and she made a disclosure statement Ext.PW17/M. One motorcycle bearing No.UP21A8966 was recovered from the house of accused Sushila and the same was seized. On 21.05.2004, accused Jai Singh led the police party near a small pond and got recovered a danda which was also seized. This witness was crossexamined by accused Sushila. The other accused persons moved an application under Section 311 Cr P C for crossexamination of this witness which was allowed by Ld predecessor of this Court. This witness did not enter the witnessbox for his cross examination and, thus, his testimony cannot be read in evidence against accused Jai Singh, Rajneesh and Narender.
24.PW28 S.I. S.S.Yadav is the initial I.O of the case. He proved the rukka as Ext.PW28/A. In his crossexamination, he could not tell as to who informed him the address of accused Jai Singh. He also could not tell if the accused himself had produced his clothes or he led them to the place where the blood stained clothes were kept. He also could not tell in his cross examination whether the seizure was made inside the house or outside the house.
Sessions Case No.60/2009. Pages 16/27
25.PW26 Inspector H S Meena is the IO of the case. In his cross examination he testified that he started investigation on the basis of the letter addressed to the SHO recovered from the possession of the deceased. He admitted in his cross examination that he did not serve any notice to public persons who had refused to join the investigation. He could not tell the description of the house of the accused persons and also clothes worn by the accused persons at the time of the incident. He further admitted in his crossexamination that he did not record the statement of any person resident of Bhatinda to the effect that Attar Singh was with him on the day of incident. He further admitted that no date on the letter Ext.PW13/3 at serial no.3 is mentioned and he did not conduct any investigation with respect to letter Ext.PW13/3 as to when the same was written. He further admitted that no complaint was ever made by deceased Suresh against accused Sushila in Police Station, Najafgarh, New Delhi.
26.The prosecution case is that the accused Sushila in connivance of accused persons Jai Singh, Narender and Rajneesh eliminated her husband Suresh who was working with CRPF. Accused Sushila was having illicit relations with many people and deceased Suresh was against it. Accused Jai Singh agreed to eliminate Suresh for a sum of Rs. 20,000/ and Rs. 4500/ were Sessions Case No.60/2009. Pages 17/27 given to him in advance by accused Sushila. The accused got arranged one mobile phone and one motorcycle for the said purpose for accused Jai Singh.
27. It is contended on behalf of accused persons that all the circumstances taken together did not complete the chain and they do not unequivocally point to the guilt of the accused and exclude any hypothesis consistence with their innocence. It is not necessary for this Court to discuss in detail the law relating to the circumstantial evidence and burden the judgment with the case law cited by the counsel for the accused, suffice it to say that prosecution must prove each of the circumstances, having a definite tendency pointing out towards the guilt of the accused and though each of the circumstances by itself may not be conclusive but the cumulative effect of the proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused. It is necessary to examine the following circumstances, in the light of aforesaid principle, to arrive at a conclusion whether the accused persons are guilty of the offences charged with or not :
1. Evidence of last seen.
2. Extra Judicial Confession allegedly made by accused Sushila to PW4 Beermati.
3. Motive for the commission of offence as testified by Sessions Case No.60/2009. Pages 18/27 PW10 Poonam Dhaiya.
4. Discovery of a fact or recovery of any incriminating circumstance at the instance of accused persons pursuant to their disclosure statements.
5. Letter/complaint addressed to SHO, Najafgarh recovered from the possession of deceased Suresh.
28.Evidence of last seen :
PW6 Mahavir Singh, who is the elder brother of the deceased, has claimed that he had seen the deceased in the company of accused Jai Singh, Narender and Rajneesh on 17.05.2004 at about 9.30 p.m. On 18.05.2004, at about 6.30 a.m, the dead body of deceased Suresh was found lying in a drain. In this context, the most important evidence is the medical evidence i.e the postmortem report Ext.PW43/A. PW43 has given the time of death of the deceased which does not support the case of the prosecution. According to PW43, the deceased Suresh died in between 1.45 a.m to 1.45 p.m on 17.05.2004 whereas the case of the prosecution is that he was killed in the night of 17.05.2004 after 11.10 p.m. The present case is based on circumstantial evidence and if the time of death is not getting support from the autopsy surgeon then the whole case of the prosecution collapses. It is also pertinent to note that accused persons and PW6 were known to each other and in such circumstances it is highly improbable that the accused persons would have killed Sessions Case No.60/2009. Pages 19/27 such a person whose real brother had seen them in the company of the deceased shortly before the incident.
29.Extra Judicial Confession made by accused Sushila : To examine the veracity of the extra judicial confession, the deposition of P.W4, PW6 and PW36 is relevant. These three witnesses moved in different directions as far as their deposition with regard to extra judicial confession is concerned. The most important witness of the prosecution in this regard is PW4 Smt Beermati. She is the wife of the elder brother of the deceased. She was not on visiting terms with accused Sushila nor she was a close aide or a person of confidence of the accused. PW4 was also not capable to save the accused Sushila from legal action. PW4 did not disclose about the alleged extra judicial confession to anyone in the family including her motherinlaw (who is not even a witness in this case). The accused Sushila also never shared her alleged involvement in offence with PW4 on the previous night whereas admittedly they had talked to each other. Further, the manner in which it has been communicated to others, including the Investigating Officer, is also highly suspicious and does not inspire confidence. Above all, the deposition of PW4 with regard to extra judicial confession does not find any support from statement of PW6. All other accused persons had already been arrested prior to the extra judicial Sessions Case No.60/2009. Pages 20/27 confession and disclosure statement made by accused Sushila. It shows that nobody was arrested pursuant to the extra judicial confession or the disclosure statement of accused Sushila. Furthermore, it is difficult to rely upon the extra judicial confession as deposed by PW4, as the exact words or even the words as nearly as possible have not been reproduced by PW4. For taking this view I am supported with the judgment C K Ravinderan (Supra).
30.PW6, another witness to the extra judicial confession, has virtually demolished the statement of PW4. He has stated that after the arrest of the other three accused persons, he reached the house of accused Sushila and that before him accused Sushila stated that she got her husband killed and that she had committed mistake and also that she wanted help from him to save her. Contradicting the deposition of PW4 and also his own statement under Section 161 Cr P C, PW6 has stated as under : " I had not told IO in my statement under Section 161 Cr P C that Sushila had made confession before me and that I had stated that Sushila had confessed before my wife who had further told him about confession."
Thus, PW6 himself has shaken the credibility of the deposition of PW4 particularly with regard to alleged extra judicial confession as PW6 in his examinationinchief at page 2 (para Sessions Case No.60/2009. Pages 21/27
2) has categorically stated "thereafter we went to the house of Sushila and where Sushila confessed having committed the offence before me. She stated that she had got Suresh killed and had committed a great mistake. She wanted him to help her and save her. She also told me that she had got Suresh killed."
31. Thus, from the testimony of PW6 it appears that accused Sushila confessed before him and not before I.O or anybody else which is contrary to the case set up by the prosecution. In such circumstances the extra judicial confession allegedly made to PW4 or PW6 loose its truthfulness, genuineness as well as legal sanctity.
32. Motive for the commission of offence as testified by PW10 The deceased Suresh was the maternal uncle of PW10. It is highly improbable that in Indian society especially in rural areas a person would tell his sister's daughter that his wife is having illicit relation with many persons. PW10 did not tell the specific date, time and place as to where she had seen accused Sushila in a compromising position with accused Jai Singh. She examined silent and did not tell this fact to anybody prior to the murder of deceased Suresh. PW10 in her crossexamination could not tell the date, month and the year of her visit to the house of deceased Suresh. She also could not tell the address of the house of deceased Suresh. It shows that she was not on visiting Sessions Case No.60/2009. Pages 22/27 terms with deceased Suresh. In such circumstances, motive has not been established by the prosecution beyond reasonable doubt.
33.Discovery of a fact or recovery of any incriminating circumstance at the instance of accused persons pursuant to their disclosure statements.
a) Recovery of mobile and motorcycle : As far as the recovery of motorcycle and mobile phone pursuant to the disclosure statement made by accused Sushila are concerned, they are of no legal sanctity. The motorcycle allegedly used in the crime had already been seized by the police before the disclosure was recorded. No chance prints were lifted from the motorcycle and no incriminating substance was found on the said motorcycle. The recovery of mobile phone at the instance of accused Sushila has been falsified by PW5 Rakesh. A perusal of the statement of PW5 reveals that the deceased Suresh himself had borrowed the mobile phone on 17.05.2004 from PW5. It has also not been established that the mobile phone was returned by accused Sushila. As per PW5, the said mobile phone was not kept in a sealed cover. The said motorcycle was in the name of one Attar Singh. In such circumstances, no new fact can be said to have been discovered pursuant to the disclosure statement of accused Sushila. Thus, the disclosure statement of accused Sushila is of Sessions Case No.60/2009. Pages 23/27 no legal consequence.
b) Recovery of blood stained clothes. The blood stained clothes have been shown to be recovered from the respective houses of the accused persons. There is no independent public witness to the recovery of blood stained clothes except PW6 Mahavir Singh. Neither S.I. S.S Yadav nor Inspector H S Meena gave the description of the houses of the accused persons from where the blood stained clothes were recovered. They also could not give the complete description of blood stained clothes. Neither any Site Plan nor any documentary proof qua ownership of said houses from where the blood stained clothes were recovered has been placed on record. Accused Rajneesh belonged to village Kabulpur, District, Rohtak. However, the recovery of blood stained clothes were effected at his instance from a house situated at Sainik Enclave but it has not been shown by the prosecution in what capacity the accused Rajneesh was staying in the said house. In this context, the medical evidence on record is also relevant to note of. PW37 Dr Rajender Kumar, Assistant Director, Biology has admitted that without RH factor, the blood group is incomplete. PW36 Inspector H S Meena (IO) has admitted that he had not made any specific request to FSL to tell the RH factor to be either positive or negative. As per I.Card Ext.PW42/A of Suresh, he Sessions Case No.60/2009. Pages 24/27 was having RH factor 'Negative'. This Court can take judicial notice of the fact that RH factor 'Negative' is rarely found in human beings and in such circumstances, determination of RH factor was of importance in the present case. Thus, it cannot be said that the blood stains on the clothes of accused persons were of deceased Suresh. In these circumstances, the recovery of blood stained clothes at the instance of accused persons is doubtful.
c) Recovery of danda . The danda with blood stains used in committing the offence was recovered from an open place i.e near the road. It has not been established by the prosecution that the blood stains found on the said danda were of deceased. No independent public person was made a witness to recovery of said danda except PW6 Mahavir Singh who is the elder brother of deceased and is, thus, an interested witness.
34.Letter/complaint addressed to SHO, Najafgarh recovered from the person of deceased Suresh :
The manner in which the said letter/complaint is shown to have recovered is full of suspicion. The Investigating Officer PW36 H.S Meena during his crossexamination has admitted the fact that no investigation in respect of said letter/complaint was carried out by him. Even the date of said letter/complaint was also not ascertained by him. The IO did not even try to ascertain Sessions Case No.60/2009. Pages 25/27 the tentative date of the said letter. He did not even investigate about the last posting and the time when the deceased Suresh last visited Delhi when the letter was written. In the absence of specific date/time, the said letter/complaint Ext.PW13/3 looses its importance. Thus, it is not clear as to when deceased Suresh was apprehending threat to his life from the persons named in Ext.PW13/3 - whether it was one month or one year prior to the incident? Moreover, all the accused named therein are not the accused before this Court. Thus, the said letter/complaint Ext.PW13/3 is of no legal consequence.
35.There are few other factors which also create a doubt in the story of the prosecution. In the letter/complaint Ext.PW13/3 recovered from the possession of deceased Suresh, he suspected threat to his life from accused Sushila, Attar Singh and Ravinder. However, Attar Singh and Ravinder were not examined by the IO. There is no explanation from the side of the prosecution as to why Attar Singh and Ravinder were not examined particularly when the motorcycle allegedly recovered from the possession of accused Sushila was in the name of Attar Singh. In his crossexamination, PW36 Inspector H S Meena has admitted that he did not record the statement of any person residing in Bhatinda to the effect that Attar Singh was with him in Bhatinda on the day of incident. The finger prints of the Sessions Case No.60/2009. Pages 26/27 accused persons did not tally with the chance prints lifted from the handle of the scooter.
36.In these circumstances and for the above said reasons, I am of the opinion that prosecution has not been able to prove its case against the accused persons beyond reasonable doubt. It is the cardinal principle of justice that whenever there is doubt, the benefit of doubt must be given to the accused. The chain of circumstances is incomplete. There is no direct evidence and in the absence of a complete chain, charges framed against the accused persons are not established. The accused are accordingly acquitted by giving them the benefit of doubt. They be set at liberty forthwith unless required in any other case. File be consigned to Record Room.
Announced in open Court (PRAVEEN KUMAR) on January 27, 2011. Addl.Sessions Judge, Dwarka, New Delhi.
Sessions Case No.60/2009. Pages 27/27