Delhi District Court
State vs . Vinod Malik @ Jat S/O Ombeer Singh, R/O ... on 13 March, 2013
IN THE COURT OF SH. J. R. ARYAN, DISTRICT JUDGE & SESSIONS JUDGE,NORTH
EAST DISTRICT,KARKARDOOMA COURTS, DELHI
SC No. 136/09
Unique ID Case No. 02402R0265572009
State Vs. Vinod Malik @ Jat S/o Ombeer Singh, R/o Khijjarpur, PS Phugana,
Distt. Muzaffar Nagar, U.P.
FIR No. 403/08
PS: Gokulpuri
U/s 365/302/201 IPC.
Date of institution of case :- 10.11.09
Date of reserving the case for orders :- 05.03.2013
Date of passing of orders :- 13.03.2013
JUDGEMENT
1. Charge under Section 302, 201 and 365 IPC has been tried against accused Vinod @ Jat. The charge in nutshell is that somewhere between 3 rd December, 2008 to 4th of December, 2008 accused kidnapped deceased Pardeep Tyagi and his intention was to cause victim Pardeep Tyagi secretly and wrongfully confined and during said time/period, accused committed murder of Pardeep Tyagi by causing brick blows on deceased. After committing the murder, accused caused evidence of murder to disappear when body of the deceased was thrown inside "Barsati Nala"
nearby Government Senior Secondary Sarvodhaya Kanya Vidhayala, village Gokalpur, Delhi and body was set on fire in order to destroy the evidence and to screen himself of the offence committed by accused. Accused claimed trial.
2. Present case was registered on 20.12.2008 when a written complaint was given to the Police by Sh. Bhagwan Singh Tyagi, father of deceased. According to this complaint Ex. PW10/B deceased Pardeep Tyagi aged 32 years was driver on a RTV vehicle for the last 8 to 9 years and vehicle was being used to transport school SC no.60/12 Page 1/11 children and used to be parked at Mukul Petrol Pump, Gokalpuri, Delhi. Vehicle was parked on that petrol pump on 03.12.2008 at around 3 am. Pardeep used to be in that vehicle and on 03.12.2008 he was there in that vehicle. Informant had a talk with Pardeep on 03.12.2008 evening.
3. On 04.12.2008 at around 6.30 am owner of the vehicle Gyan Chand PW5 called upon informant that Pardeep was missing though the vehicle was there parked at petrol pump. Informant further alleged in his report that he had tried to trace his son but could not trace him. Deceased Pardeep had a mobile phone with number 9818662843 and despite efforts that phone was not being connected. He further alleged that missing report of his son had already been given in the Police Station on 11.12.2008. Finally, informant gave in his report that a Jat boy @ Vinod used to be in the company of Pardeep and informant brought Vinod before SHO on 11.12.2008 but then informant was later told by the police that Pardeep was in bad company and may be he left that job/employment and joined elsewhere. Finally, informant alleged in his report that he suspected Pardeep might have been committed some serious incident. On this report present case FIR was registered on 20.12.2008 at 20.25 hours and that FIR is Ex. PW1/A.
4. Further prosecution case is that on 09.01.2009 DD 7A Ex. PW14/E was recorded in Police Station Gokalpuri on the basis of an information given by SI Ram Avtar, Crime Branch to the effect that foul smell was there near Senior Secondary School, Gokalpuri, Wazirabad Road, Delhi and since one of the near relation of SI Ram Avtar namely Pardeep was missing, he requested SHO Inspector V S Malik, Police Station Gokalpuri to check that spot. Inspector V. S. Malik with other police staff reached that spot. It was a sewer line and when lid of that sewer was lifted SC no.60/12 Page 2/11 inside that sewer at a distance of three feet from that sewer lid point that a dead body was noticed lying there which was giving foul smell. Nearby body at some distance were lying blood stained clothes and a driving license. Crime Team was called and photographs of that spot were taken. Site plan Ex.X1 was also recorded. Blood stained clothes were taken into possession by converting into a cloth pulanda. The dead body was got removed to Mortuary with a request to preserve it for 72 hours. Mobile phone call details of the deceased were collected. Post mortem on the body was got carried out. Some parts of the body were sent for DNA analysis to FSL, Rohini. The mobile phone of deceased was in the meanwhile recovered on 08.04.2009. Suspected accused Vinod Malik was found evading his arrest and finally accused had been apprehended on 06.03.2009 and was arrested in this case. He was taken on two days police remand and finally accused was charge sheeted.
5. Prosecution case is based on circumstantial evidence. Incriminating circumstance pressed by the prosecution is " last seen" and relevant witness on that circumstance is PW11 Minto Sharma. This witness is also a driver by profession and his 161 CrPC statement was recorded on 20.01.2009. According to that evidence this witness, a resident of Bihar, had come to Delhi in the year 1992 and initially having worked as a helper in buses he became driver and had been driving buses since 1998 and he was attached with Rajender Tourist as a bus driver since 2007 and used to drive bus DL-1PB-8235. This witness claimed that he knew Pardeep and accused known by the name of Jat but about three years ago Pardeep and accused Jat had given beating to this witness and he had disassociated with them. He further gave facts to the police that one Sahil was also a friend of Pardeep besides Jat but he did not know address of Sahil or Jat. It is further recorded in his 161 CrPC statement that SC no.60/12 Page 3/11 on 03.12.2008 at around 8.30pm accused Jat and Pardeep came to the room of this witness in house no.299, B Block, gali no.8, Gokapuri, Delhi. Both appeared to have taken liquor. Accused Jat thereafter brought another half bottle of liquor. When accused Jat had gone to fetch liquor, Pardeep had spoken to his wife from his mobile phone. Accused Jat and Pardeep then took liquor further and gave one liquor peg to this witness also and finally both of them left his house at around 9.30pm. He further stated in that 161 CrPC statement that family members of Pardeep while searching for Pardeep had called this witness also. Thereafter, one day accused Jat came to the room of this witness and asked this witness as to what facts this witness had conveyed to the police and left after giving a threat to the witness to not to disclose any fact to the Police otherwise he would also be killed in the same manner as Pardeep had been killed. This was basically the incriminating evidence prosecution sought to rely. Statement of this witness Minto suggesting accused and deceased seen together and after death of Pardeep when his family members and police were in search of Pardeep and culprits of this murder then accused Vinod once came to this witness and gave a threat to kill this witness if he disclosed the said fact of visit of deceased and accused to the room of this witness and the threat gave an inference if accused had committed murder of Pardeep. On this incriminating evidence prosecution proceeded with its trial against accused. In all 20 prosecution witnesses had been examined. Brief detail of those evidence is as follow.
6. PW1 is the duty officer, who had recorded FIR of this case and proved this FIR as Ex.PW1/A, which was recorded on 20.12.2008 u/s 365 IPC. PW2 Smt. Krishna and her husband Sh. Bhagwan Tyagi PW10 are the parents of deceased Pradeep and they both presented themselves in FSL, New Delhi on 27.03.09. SC no.60/12 Page 4/11 Complete sample of both these witnesses were taken for DNA profiling. PW3 is the Constable, who was part of the crime team and according to this witness on 09.01.09, he had taken photographs of the spot situated near Government Sr. Secondary School, Gokalpuri, and on that spot a dead body had been taken out of sewer line and the body was in burnt condition. He exhibited those photographs as Ex.PW3/1 to 18. PW4 is the Incharge Crime Team and he prepared his report as Ex.PW4/A. He is also a witness of recovery of articles like clothes, belt, pair of foot slippers, some visiting cards and purse, which were found there on the scene of crime and then seized by the police.
7. PW5 Sh. Gyan Chand is the owner of RTV vehicle DL1VA 2597. The witness deposed that vehicle was being used for carrying school children and Pradeep was driver of that bus on daily wages of Rs.200/- basis. Witness deposed that on 28/29-11-08 Pradeep went to his village and came back on 01.12.08 and joined duty from 02.12.08. The bus used to be parked at patrol pump, which belonged to one Mukul and Pradeep used to stay around that area. Witness deposed that Pradeep picked up keys of the vehicle on 01.12.08. On 04.12.08 witness found the bus still parked at patrol pump and Pradeep was not traceable. Despite search and efforts, he could not be traced. The keys of the vehicle bus since was with Pradeep, children were not being being picked up for school and witness got the bus operated by getting the lock broken. Mobile phone of Pradeep was not responding despite call bell ring. This witness went to PS to lodge a report, but police did not take any report. Finally missing report was lodged with police on 12.12.08.
8. Witness further deposed that on 09.01.09 on receiving a call from police, he reached the place of incident that was sewer nala situated near Gokalpuri, Secondary SC no.60/12 Page 5/11 School. A dead body of human being whose face was completely burnt was taken out of that sewer and some articles were there which witness identified that dead body as of Pradeep and those articles included the purse and a pair of foot slippers blood stains, some visiting cards and bunch of keys. Witness identified that bunch of keys belonged to his RTV vehicle. He identified clothes which belonged to Pradeep. That keys bunch was recovered from pant pocket. Father of Pradeep also arrived there and he also identified clothes of Pradeep and then dead body was removed to GTB Hospital. Blood sample and other samples were also lifted by the police.
9. PW6 is the witness to the effect that somewhere in December, 2008, he used to work as a labour in Road Construction and at that time work was going on on the Main Wazirabad Road. On that site he found a phone lying near nala/drain. He also found one half quarter bottle of liquor and some glasses lying on that spot. This witness picked up phone and made call to his daughter in her native village. Next day on the advise of his colleagues, he took out SIM of that mobile and threw it away and purchased another SIM for that phone and later on police traced that mobile with this witness and that mobile phone was seized. In cross-examination, witness disclosed mobile phone of his daughter as 9936936603 when he had connected a call from the mobile phone of this case on the date of recovery.
10. PW7 had deposited the exhibits of this case in FSL Rohini after taking them from MHC(M) PS Gokalpuri on 27.03.09. PW8 is a witness of arrest of accused when on 10.06.09 accused Vinod was produced in Karkardooma Courts and witness proved that arrest through memo Ex.PW8/A. Accused was interrogated by Inspector Ishwar Singh Malik and confession of accused was recorded as PW8/C. Accused was taken on one day police custody remand and accused on further interrogation gave SC no.60/12 Page 6/11 another disclosure as Ex.PW8/D.
11. PW9 is the MHC(M) with whom exhibits seized by police had been deposited and then those exhibits had been sent to FSL. PW10 is the father of the victim/deceased.
12. PW11 is the most material witness as according to prosecution case he is a witness of deceased and accused seen together alive last. This witness deposed that he had started working as a bus helper long ago and probably since 1998-99 he started working as bus driver and he knew Pradeep, who was also a driver. Witness deposed that somewhere in the month of December and the year as he recollect was 2008-09 that in the night deceased Pradeep and accused Vinod facing trial in this case came to his room and then left. Beyond those facts, witness expressed ignorance of any further fact. He was got declared hostile and was cross-examined by the ld. Addl. PP. In this cross-examination, witness admits that one Sahil and accused Vinod were friends of deceased Pradeep, but witness was unaware if Sahil was living in Gokalpuri and then shifted to Sonia Vihar or that accused Vinod was permanent resident of Village Kheejarpur, Distt. Muzaffarnagar, U.P.
13. Witness when suggested that deceased and accused Vinod came to the room of this witness on 03.12.08 at around 8.30pm, witness admitted that possibility. Witness, however, states that he did not recall if both were under the influence of alcohol or that accused Vinod had brought another half liquor bottle and they further consumed liquor or that witness had stated all those facts to the police, witness was confronted with his 161 Cr.P.C statement.
14. Witness further expressed ignorance, if accused once came to the room of this witness in the night , gave a knock on door and then gave threat to this witness SC no.60/12 Page 7/11 uttering the witness that he would not tell anything to the police about accused, otherwise witness would also meet the fact which deceased Pradeep had already met. Witness stated that he did not recall if such fact had happened or that any such utterance was made by the accused. He was confronted with his statement. Witness, however, disputed suggestion if thereafter accused once met him and gave threat to the witness to remain silent or to face consequence as already done to Pradeep. Witness denied to have given any such fact in his statement to the police and he was confronted with his statement. Witness admitted that accused was working as a helper on RTV bus, but denied if accused was alcoholic or a man of quarrelsome nature or that a person who could do anything after consuming liquor. Witness could not affirm or deny, if on 03.12.08 accused as well deceased had left his house at around 9.30pm. Witness also deposed ignorance of the fact if during intervening period when Vinod accused had gone to buy liquor bottle, deceased Pradeep had spoken to his wife.
15. It had been argued from the defence side that PW11 was completely unreliable witness as he has been got declared hostile on all important facts. Though witness deposed that he was friendly with the deceased and accused and both did come to his room on one day, but it is only in cross-examination taken up by the ld. Addl. PP that witness deposed that he could not affirm or deny if that date was 03.12.08. It is submitted that where prosecution case itself is that deceased Pradeep had given a call to his wife then prosecution, ought to have proved mobile phone call details of the phone of Pradeep to connect that call made by Pradeep to his wife to provide support and corroboration that visit of deceased Pradeep and accused to the room of this witness was on 03.12.08 and it was around 8.30pm. Conversation between deceased SC no.60/12 Page 8/11 Pradeep and his wife also would have been important piece of evidence, but prosecution has failed to prove that evidence on record. I do agree with submissions of the defence that where the case was based on circumstantial evidence, then further circumstances which have bearing on the incriminating circumstance must be brought before the Court. Call details of the mobile phone of deceased Pradeep would have provided a support and corroboration to his last seen theory presented by the prosecution through this witness PW11. Call details would have further provided support to the evidence of PW6 Charan Singh, who had found the mobile phone lying near the construction side where he used to work as labour and witness deposed that on the date of recovery of that mobile phone he had given a call to his wife in his native village and only thereafter he took out the SIM of that mobile phone and threw it away which could not be recovered. But then mobile phone with this witness was traced through mobile phone IMEI connectivity. Call details would have established the date of recovery of that phone when PW6 had made a call to his wife. By not collecting that important piece of evidence, the prosecution case suffers the serious prejudice in its circumstantial incriminating evidence. It has been pointed out from the defence side that 161 statement of this witness was recorded on 20.01.09 and testimony of IO or this witness fails to disclose as to how this witness was traced that he would speak the last seen circumstance. It was submitted that at least the investigating officer ought to have deposed that where as dead body in this case had been recovered on 09.01.09, then why statement of this witness was recorded after more than 10 days lest it remove the doubt that witness was being introduced on the last seen incriminating circumstance.
16. PW12 is a police official in whose presence mobile phone of deceased had SC no.60/12 Page 9/11 been recovered from possession of PW6. PW13 is the witness, who had joined investigation proceedings as 09.01.09 when dead body was recovered and thus his evidence is a repetition of other witness on the same fact. PW14 had got the present case FIR registered on a report lodged by Sh. Bhagwan Tyagi and this witness had also joined investigation proceedings on 09.01.09. PW15 is the police official, who had arrested accused Vinod on 08.06.09. PW16 is also the witness of arrest of accused. PW17 is the witness who had collected blood samples of accused from GTB Hospital. PW18 is the investigating officer. PW19 is a witness of seizure and exhibits of this case and finally PW20 is a police official, who had deposited viscera of deceased with FSL on 22.09.2009.
17. Postmortem report in this case recorded the fact that time since death could not be determined. It is well settled proposition of law that before prosecution presses theory of "last seen", it must prove by cogent evidence and Court must examine that intervening period between the deceased and accused last seen alive and the time of death of deceased was so small, which ruled out the possibility of someone else intervening and committing the crime. In the present case, though deceased victim Pradeep was reported missing since 02.12.08 and FIR suspecting his abduction had been registered on 20.12.08, but then dead body in a highly burnt condition was noticed and recovered on 09.01.09. PW11 is a witness that deceased and accused both were friends and also acquaintance of this witness came to the room of this witness in the late night at around 8.30pm on 03.12.08, but then PW11 has not given a complete support to that case of the prosecution. He has been got declared hostile and witness deposed that he did not remember, if any such fact had occurred. It becomes difficult to place any reliance on this witness. At the most his evidence SC no.60/12 Page 10/11 could have been taken any corroborative support had there been any other link in the chain of incriminating circumstance.
18. As seen above, 161 Cr.P.C statement of PW11 was recorded after 10-11 days of recovery of the body and this witness was supposed to be on the incriminating circumstance of last seen. Accused was arrested in this case somewhere in June, 2009, but still investigation appears not to have been taken up with that zeal and vigour that case was based upon circumstantial evidence and only circumstance available with prosecution was company of the accused with deceased on the night of 03.12.2008. As seen above, call details of the mobile phone of deceased could have provided further clues as to what was the position of deceased when last call till he was alive had been made. Call details of the mobile phone of accused could have been investigated to know his position and location. There was no recovery or discovery pursuant to confession or disclosure given by the accused despite accused taken on one day police custody remand. Entire evidence becomes the ritual in absence of incriminating circumstance connecting accused with crime.
19. Prosecution fails to establish and prove the incriminating circumstance of deceased last seen in the company of accused soon prior to death of deceased. There is no other fact or circumstance to connect accused with this crime. Accused is acquitted of the charge. However, his bail bonds shall remain in force for a period of six months in pursuance to provision of section 437A Cr.P.C. File be consigned to Record Room.
Announced in the open Court ( J R ARYAN ) On this 13th day of March, 2013. District & Sessions Judge(NE) Karkardooma Courts,Delhi SC no.60/12 Page 11/11