Delhi District Court
State vs Accused on 19 November, 2012
IN THE COURT OF DR. T.R. NAVAL ADDITIONAL SESSIONS JUDGE-02 EAST DISTRICT KARKARDOOMA COURTS DELHI SC NO.15/08 Date of Institution :03.09.2008 FIR No.193/08 Date of Argument :17.11.2012 PS New Ashok Nagar Date of Order :19.11.2012 U/S 302 IPC & 27 Arms Act. Unique Case I.D. No.02402R0653252008 State Versus Accused Udaiveer Singh S/o Baldev Singh R/o B-39, New No.B-226, New Ashok Nagar, Delhi. JUDGMENT
The facts in brief of the prosecution case are that on 31.05.2008 at about 10:30 p.m. an intimation about the commission of murder at ground floor of premises No. B-205, New Ashok Nagar, Delhi was received in the PS New Ashok Nagar and DD No.24A was recorded. Inspector SHO Ram Kishore Meena arrived at the spot. Statement of Sh. Parasnath brother of deceased was recorded. On the basis of his statement, FIR of present case bearing No.193 dated 01.06.2008 at PS New Ashok Nagar u/s 302 IPC was recorded. IO prepared site plan. Blood sample from the spot was taken. The floor containing blood, after breaking it, was sealed and taken into possession. After breaking earth stone, from the floor from the place of dead body, was also seized by converting it into plastic pullinda and sealing it with SC No.15/08 State Vs. Udaiveer Singh Page 1/40 the seal of RK. The portion of plaster of wall having mark of firing was also seized in the same manner along with bed sheet, lungi, bullet and bullet cover. On 04.06.2008 accused Udaiveer Singh was arrested and his arrest memo and personal search memo were prepared. He was interrogated and his disclosure statement was recorded on the same day. Accused Udaiveer led the police party to a place near Hindon River Bridge, Ghaziabad, UP and one country made pistol (Desi Katta) with the help of diver was recovered from the river bridge. On opening country made pistol was found empty. After sealing it with the seal of RK, it was also seized. Accused also led the police party to H.No. B-39, New Ashok Nagar from where motor cycle bearing No. DL 7S AN 6130 Make TVS Black Colour was seized on the same day. On 05.06.2008 Nokia phone at the pointing out of accused Udaiveer Singh from H.No. B-226, New Ashok Nagar, Delhi was also seized having IMEI No. 359389009151667 and SIM card No.899168405602541436 and that was also converted into pullinda and sealed with the seal of RK and it was also seized. Gauze piece which was presented by CFSL during Forensic Inspection was also converted into pullinda and sealed with the seal of RK and was seized. Attendance record of deceased Ram Sumer from his BSES office was also obtained. Scene of crime was also got photographed. On 06.06.2008 statement of Smt. Shyam Kumari u/s 164 Cr.P.C. was got recorded by Ld. M.M. Exhibits of the case were sent to FSL for testing and report. Postmortem of the dead body was got conducted. In the postmortem report, shock and hemorrhage following a near shot range gun shot injury was opined as sufficient to cause death SC No.15/08 State Vs. Udaiveer Singh Page 2/40 in ordinary course of nature. The investigation officer, after collecting call details of relevant telephones, recording of statements, collecting of reports and on completion of investigation, filed a charge sheet against accused for his trial for the offences punishable u/s 302 IPC and 25 Arms Act.
2. On appearance, Ld. Metropolitan Magistrate, after supplying copies of charge sheet and documents to the accused, committed this case to the court of sessions and the case was assigned to Sh. A.K. Chawla, Ld. ASJ and vide order dated 15.11.2008 this case was transferred to this court.
3. My Ld. Predecessor vide his order dated 21.02.2009 was of the opinion that prima facie there was sufficient material to frame charge against the accused for the offences punishable u/s 302 IPC as well as u/s 27 of Arms Act so the charge against the accused for said offences was framed and read over to him in vernacular language. Accused pleaded that he was not guilty and he claimed trial.
4. The prosecution, in order to prove its case, examined Sh. Somnath younger brother of deceased as PW1; Smt. Shyam Kumari wife of deceased as PW2; Sh. Parasnath Beldar in CPWD as PW3; Sh. Sanjay r/o Sanjay Colony, Arthala Village, in front of Peer near Mandir, PS Sahibabad UP as PW4; Sh. Sheikh Bilal, diver as PW5; Sh. Ravinder Singh, Ld. M.M. as PW6; Dr. Deepak Mathur, Medical Officer as PW7;
SC No.15/08 State Vs. Udaiveer Singh Page 3/40Sh. Shetan Singh, Draftsman as PW8; Sh. Kaushik Hoshiyal Nodal Officer, Vodafone Essar as PW9; Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. as PW10; Ct. Sonu Kaushik Assistant Draftsman as PW11; SI Dheeraj Singh as PW12; Ct. Jagbir Singh as PW13; SI Pankaj Kumar as PW14; Ct. Amar Singh as PW15; Ct. Virender Kumar as PW16; Ct. Sheovir as PW17; Ct. Manbir as PW18; HC Ramvir Singh as PW19; Sh. B.L. Singh, Nodal Officer, MTNL as PW20; Ct. Rajendra as PW21; Inspector Ram Kishore as PW22; Ct. Kendra Pal as PW23; Ct. Lalit Kumar as PW24; HC Pooran Chand as PW25; Ct. Manoj as PW26; HC Mahak Singh as PW27; Inspector Rajesh Kumar as PW28; SI Subhash Bhatt as PW29; Dr. Rajender Kumar Assistant Director, Biology, FSL as PW30; Sh. V.R. Anand, Sr. Scientific Officer, Ballistic, FSL as PW31; Sh. Naresh Kumar, Sr. Scientific Officer, Biology, FSL as PW32; and Dr. O.P. Mishra, DCP as PW33.
5. After closing of prosecution evidence statement of the accused was recorded u/s 313 of the Code of Criminal Procedure, here in after referred to as the Code. Accused admitted that deceased was residing at B-205, New Ashok Nagar alongwith his wife Shyam Kumari and deceased used to work as lineman in BSES. He also admitted that he was having a flat in front of H. No.205, New Ashok Nagar, Delhi where he had started construction of a house on that floor. It was also admitted that deceased Ram Sumer and his family had gone to his native village on 17.04.2008 to attend a marriage of his nephew Suresh and further that one mobile phone make Nokia 1110 was taken into SC No.15/08 State Vs. Udaiveer Singh Page 4/40 possession by police vide memo Ex.PW24/G on 05.06.2008. He either denied rest of the evidence or expressed his ignorance about the same. He pleaded that there was money transactions with deceased Ram Sumer as he had taken a friendly loan of Rs.2.5 lacs. He was not present at his house in the intervening night on 31.05.2008/01.06.2008 as he had gone to Badarpur at the house of Devraj, a friend of his brother to attend lagan ceremony of his daughter which had to take place on 01.06.2008. On 31.05.2008 he had purchased articles for lagan and he was present there in sangeet program in the intervening night. He further pleaded that he was falsely implicated and PWs deposed against him as they were interested and fake witnesses.
6. In his defence, the accused examined himself u/s 315 Cr.P.C. as DW1. Besides, he examined SI Ram Vilas as DW2; Sh. Dev Raj as DW3; Sh. Prem Pal Singh as DW4; Sh. Agya Ram, Accounts Officer, DDA as DW5; Sh. Sheikh Mani Mishra as DW6; Sh. K.R. Gautam as DW7; HC Vinod Kumar as DW8; Ct. Ashwani as DW9 and Sh. J.S. Rawat as DW10.
7. After closing of evidence by both the parties, I have heard lengthy arguments addressed by Ld. Counsel for accused and Ld. Addl. Public Prosecutor for the State and perused file including bulky written submissions supported by a large number of rulings.
8. On perusal of charge sheet and other documents, on SC No.15/08 State Vs. Udaiveer Singh Page 5/40 examination and analyzing of evidence on record and on considering the arguments, I have formed my opinions which are discussed herein below in this order.
9. It would be appropriate to reproduce Section 299 and 300 IPC which run as under:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid"
10. The essential ingredients of culpable homicide are that the act was done with the intention of causing death (ii) with the intention of causing such bodily injury as is likely to cause death; (iii) with the knowledge as is likely to cause death; let us analyze the prosecution evidence in order to see whether prosecution has proved its case that accused Udaiveer Singh committed offence of murder?
SC No.15/08 State Vs. Udaiveer Singh Page 6/40Death of Ram Sumer
11. PW1 inter alia stated that on receiving the message from Parasnath he came to Delhi with PW2 Shyama Kumari on 02.06.2008 and identified the dead body of Ram Sumer at LBS Hospital.
12. PW7 Dr. Deepak Mathur who conducted postmortem on the body of deceased Ram Sumer on 02.06.2008, proved eight main injuries which were found on the dead body and proved postmortem report as Ex.PW7/A and his opinion regarding weapon used for causing the injuries as Ex.PW7/B. He opined that injuries would be caused by the weapon katta shown to him or by the similar kind of weapon and the cause of death was shock and hemorrhage following near shot range gun shot injury and injury No. 7 & 8 cumulative with other injuries were sufficient to cause death in the ordinary course of nature. Postmortem Report was proved as Ex.PW7/A. The evidence on record has proved that deceased Ram Sumer was murdered.
Evidence Against Accused
13. Let us examine whether prosecution could prove its case that accused Udaiveer committed culpable homicide or murder of deceased Ram Sumer? Let us analyse the prosecution evidence in this regard.
14. Present case is based on circumstantial evidence as prosecution neither cited nor examined any eye witness of the SC No.15/08 State Vs. Udaiveer Singh Page 7/40 occurrence.
15. In a case, Sanatan Naskar Vs. State of West Bengal, (2010) 8 SCC 249, five golden principles to consider the case based on circumstantial evidence were laid down. It was held by the Apex court that:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(l) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC p.807, para 19: SCC (Cri) p.1047] '19..... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
Let us examine the circumstantial evidence which is SC No.15/08 State Vs. Udaiveer Singh Page 8/40 available on the record.
Extra Judicial Confession
16. It has been argued on behalf of Ld. Additional Public Prosecutor that accused; who was paramour of Smt. Shyam Kumari, told her intention to kill deceased Ram Sumer and after killing of Ram Sumer accused informed Smt. Shyam Kumari on telephone and told her about killing of her husband.
17. It has been argued on behalf of Ld. Defence Counsel that alleged extra judicial confession is not admissible in evidence. Besides, there was no occasion or reason for the accused to make confession before the alleged witness PW2. Ld. Defence Counsel submitted that testimony of PW2 is not inconsonance with the natural human conduct, e.g., She could not tell the time, date, month or year when the accused made physical relations with her first time. It is surprisingly that even after knowing the intention of the accused to kill her husband, she neither told this fact to her husband, nor made any complaint nor disclosed this fact to anyone and conversely she told to the accused that she was ready even to leave her husband and children for eloping with accused. Her statement is not believable.
18. In support of his arguments he relied on a case Rashid v. State, 2011 [3] JCC 2123 wherein the Delhi High Court observed that:
"16. We have gone through the evidence on record and have considered SC No.15/08 State Vs. Udaiveer Singh Page 9/40 the arguments advanced by the counsel for the parties. We agree with the submission made by the learned counsel for the appellants that the entire edifice of the prosecution case has been built upon the foundation of the extra-judicial confession which was allegedly made by the appellant Nasir came to PW2 Azhar Hussain. We also find that PW2 Azhar Hussain has denied this fact before Court during his deposition and it is for this reason that he was declared to be hostile. On cross- examination by the learned Additional Public Prosecutor, PW2 Azhar Hussain has clearly denied the suggestion that appellant Nasir came to him on 21.10.2005 and that he had made a statement to this effect before the police on 21.10.2005.***
24. For all these reasons, we are of the clear view that the prosecution has not been able to bring home its case against the appellants. The impugned judgment and/or order on sentence are set aside and the appellants are acquitted of all charges."
19. He further relied on a case State of Haryana v. Surender @ Shailender, 2010(3) RCR (Criminal) wherein P&H High Court observed that extra judicial confession is a week type of evidence and without independent corroboration it is not safe to rely upon it.
20. Ld. Defence Counsel further relied on a case Sanjay v. State, 2009 [3] JCC 2337 wherein the Delhi High Court observed that:
"19. Testimony of PW-6 even other-wise does not inspire confidence. It is difficult to imagine that if murder had been committed by the accused persons in the intervening night they would be found sleeping soundly till the next morning when they were woken up by PW-6 and suddenly without any instigation or any provocation decided to confess to a crime of murder. It is not the case of the prosecution that Mohd. Niaz was a close confidant of the appellant or he shared any special relationship with him which had led the appellant and his co-accused Joginder to decide to unburden themselves to Mohd. Niaz by confessing to this crime disclosing their culpability. It is also improbable that PW-6 did not think it fit to query the appellant as to the reason why he had done such an act; was it because of sudden fight or quarrel; was it because of any previous enmity; all these questions remain un-answered. Version of SC No.15/08 State Vs. Udaiveer Singh Page 10/40 PW-6 has also been controverted by the version of PW-11 as discussed Supra. In our view the conduct of PW-6 appears to be highly unnatural and unreliable and no reliance should have been placed upon his version." [Emphasis supplied]
21. PW2 on this aspect deposed that there was an empty plot lying in front of her house. About 12 years ago Dr. Udaiveer stared construction of the house. When construction was going on accused Udaiveer developed visiting terms with her husband. Her husband used to go for his duty in the morning and used to come in the evening. One day accused came to her during day time and committed sex with her despite of her objection. She did not tell that incident to her husband as she was afraid that her husband would leave her. After one month accused Udaiveer again came at her house and again committed sex with her and thereafter he continued committing sex with her. Her husband came to know about her illicit relations with accused but he did not object. About six months prior to the incident accused Udaiveer told her that he loved her very much and he could not see her with her husband who is an old man and told that, "tum meri hi ho, aur meri hi ban ke rahogi' (You are mine and will live as mine) and further told that, "chalo budhe ko me raste se hata deta hun" (let me kill the old man). She asked him not to do so and she also explained to him that she was ready to go with him leaving her husband and children. Accused replied that if they would leave the old man, how they would get his money and house? Even then she requested him not to do so. On 19.04.2008 she went to her village alongwith her husband to attend a marriage which took place on 27.04.2008. Her husband returned after attending the SC No.15/08 State Vs. Udaiveer Singh Page 11/40 marriage on 05.05.2008 leaving her and children at village. On 01.06.2008 at about 3-4 p.m. accused Dr. Udaiveer talked with her on telephone and told her, "mene Ram Sumer ka kaam tamaam kar diya hai apne raste ka kanta hata diya hai, tum Delhi aa jao" (I have removed the thorn of my way by killing Ram Sumer. You come to Delhi). Thereafter, her devar Somnath took mobile and asked her as to what did happen but she could not tell him and he rang on the same number and talked. Accused Dr. Udaiveer told him that, "mein Udaiveer bol raha hun aur Ram Sumer ka darwaja bandh hai bahar se pankha chal raha hai." (I am Udaiveer speaking and the door of the Ram Sumer is closed from outside. The fan is moving on). After this Udaiveer disconnected the phone. Then her devar Somnath telephoned to her husband but the bell rang and nobody picked up the phone. Then her devar Somnath again telephoned to her another devar Parasnath who was residing at Trilokpuri and asked him to go to Ram Sumer at his address. Thereafter, Parasnath telephoned from Ashok Nagar i.e. residence of her husband and told that Ram Sumer had been murdered. On 02.06.08 she alongwith her children reached where police officials met her. They took her to LBS hospital where she identified the dead body of her husband vide document Ex.PW1/A and received his dead body vide receipt Ex.PW1/B. On 06.06.2008, she gave her statement Ex.PW1/C u/s 164 of the Code to the Ld. M.M. In cross examination she deposed that deceased Ram Sumer was married twice before her marriage. They had shifted to Trilok Puri about 12 or 14 years from the date of giving statement before the Magistrate. She did not remember the month when SC No.15/08 State Vs. Udaiveer Singh Page 12/40 the accused started the construction of his house at New Ashok Nagar. She did not remember whether any labour or mason was present in the house of accused when accused made physical relations with her first time. She denied the suggestion that accused never made any physical relations with her. She reiterated that accused made physical relations with her and she also started loving him. Her illicit relations with the accused had been continued for the last 10-12 years. Her husband did not object her relations with accused. Accused used to visit in the noon time usually for making physical relations with her. She did not disclose to her husband that accused intended to eliminate him. She told to her husband that accused was having bad eyes on him. She did not stop to meet with accused even after threat by accused to eliminate her husband. She expressed her ignorance about any money transaction between the accused and her deceased husband.
22. I have considered the principles of law laid down in case Rashid v. State, (supra), State of Haryana v. Surender @ Shailender, (supra), Sanjay v. State, and the evidence on record, I am of the view that testimony of Smt. Shyam Kumari is not reliable and trustworthy and the prosecution could not proved on record beyond reasonable suspicion and shadow of doubt that accused made a extra judicial confession before her. The reasons which support my decision are firstly, that in cross examination she deposed that accused had disclosed his plan to eliminate her husband about six months ago from the date of his murder. It is unbelievable that neither she told this plan/ threat to her SC No.15/08 State Vs. Udaiveer Singh Page 13/40 husband clearly nor lodged any report in the police.
23. Secondly, she deposed that she had been continuing her illicit relation with accused for the last 10-12 years to the knowledge of her deceased husband. It is unreliable that he did not want company of deceased with her only after such a long time particularly when accused was also a married person.
24. Thirdly, she made material improvements in her statement on many aspects which render her testimony unreliable.
25. Fourthly, the prosecution neither cited Mahesh as witness nor examined him to prove that she received telephonic call from accused. Even the alleged telephone was not found in the name of Mahesh. It revealed that it was in the name of one Anwar Ali. He was also not examined to prove that he handed over that mobile to Mahash.
26. Fifthly, she failed to disclose giving of alleged information of murder of her husband by accused immediately to brother of her husband or family members of her in laws on receipt of information or on regaining consciousness, if she lost her consciousness. She even did not disclose that fact to the police when she arrived at her home at Delhi on 2.12.2008. PW28 in his cross examination stated that he was never informed by complainant Paras Nath, Som Nath and any other public person regarding the fact that Shyam Kumari disclosed the fact that accused Udaiveer committed murder of her husband Ram Sumer. That makes her testimony in that regard very doubtful.
SC No.15/08 State Vs. Udaiveer Singh Page 14/4027. Lastly, the principles of law laid down in case Haryana v. Surender @ Shailender, supra, provide benefit to the accused as her testimony regarding making extra judicial confession has not been corroborated by any other evidence of the prosecution.
Interested witness
28. It has also been argued by Ld. Defence Counsel that PW1, PW2 and PW3 are the interested witnesses as they are relative of the deceased and their testimonies are liable to be rejected.
29. In support of his arguments he relied on a case Dr. Jhamman Lal v. State (Delhi Administration), 2011 [4] JCC 2932 wherein the Delhi High Court observed that:
"22. Counsel for the appellant has further contended that PW-3 and PW-4 are interested witnesses and, thus, cannot be relied upon. The Apex Court in the case of Ramanand Yadav v. Prabhu Nath Jha reported at (2003) 12 SCC 606, has held as under:
"........ if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. ....If the materials show that there is a partisan approach, as indicated above, the court has to analyse the evidence with care and caution."
23. Similar opinion was expressed by the Supreme Court in the case of State of Haryana v. Ram Singh reported at 2002 (1) JCC 385: (2002) 2 SCC 426 :
"Admittedly all the supposed eyewitnesses are relations of the deceased. As such they fall within a category of interested witnesses. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the court will be rather strict in its scrutiny as to the acceptability of such an evidence."
24. Having regard to the observation of the Apex Court in the case of Ramanand Yadav and Ram Singh (supra), the Courts must be cautious SC No.15/08 State Vs. Udaiveer Singh Page 15/40 and careful while weighing the evidence of witnesses who are interested witnesses. The evidence of such witnesses should be subjected to strict scrutiny and then Court is to come to a conclusion as to whether there is a ring of truth or there is reason for holding that the evidence was biased."
30. My attention goes to a case Islam-ud-din alias Islamu v. The State, 1996 CRI.L.J. 2613, wherein Delhi High Court observed that:
"In view of Section 134 Evidence Act, the testimony of the oral witnesses can be divided into three categories, for the purposes of the appraisal of their evidence. A Court of Law would not face any problem while dealing with the testimony of a wholly reliable witness. In case of such type of a witness the Court need not look for any corroboration from any quarter whatsoever. The Court can simply say that the said witness is truthful witness and as such, worthy of placing reliance. Similarly, there would be no problem for a Court of Law while dealing with the evidence of a witness who is a liar and thus not worthy of placing any reliance. The Court in such cases may straight-away observe that the said witness being untruthful his testimony is liable to be flung to the winds and straight-away to be rejected. As regards third type of witness who is neither wholly reliable nor completely un- reliable, the question precariously perched on the tip of the tongue in such cases would be how to treat the statements of such type of witnesses? It is here that the Courts of Law stand in need of guidance. While dealing with the statements of the said witnesses the Courts would be on their tip toe and guard and would scrutinize statements of such witnesses with utmost care and caution. The statements of the said witnesses cannot be relied upon unless they are corroborated by other testimony on record either in the form of statement of a witness or some documentary proof in connection therewith. Thus, Court is concerned with the quality of the evidence of a particular witness in a particular set of circumstances. If the statement of a particular witness is credit- worthy and inspires confidence in a given set of circumstances then there is no impediment in the way of the Court to act upon it and to base the conviction thereon."
31. PW1, inter alia, deposed that on 01.06.2008 between 3-4 p.m., a telephone call was received from Delhi on the mobile phone of SC No.15/08 State Vs. Udaiveer Singh Page 16/40 Mahesh son of his brother Parasnath and her sister in law (Bhabhi) Smt. Shyam Kumari attended the phone and after attending the phone she started weeping and on asking the reason of weeping, she became unconscious. His nephew Mahesh called the caller on the same number who told his name as Dr. Udaiveer who told that room of Ram Sumer was bolted inside and ceiling fan was moving and he was not responding to the telephone call. Thereafter, he talked to his brother Parasnath at Trilokpuri and asked him to go to room of Ram Sumer and after sometime Parasnath told him that Ram Sumer had been murdered. He and his sister in law Shyam Kumari arrived at Delhi on 02.06.2008. He identified dead body of Ram Sumer at LBS hospital.
32. PW3 Parasnath, inter alia, deposed that on 01.06.2008 his brother Somnath telephoned him from his village and he was asked to go to the house of Ram Sumer to see as to what was the matter as his sister in law Shyam Kumari was weeping after hearing a telephonic call from Dr. Udaiveer who told that door of the room of Ram Sumer was closed and fan was moving. He went to the house of Ram Sumer at New Ashok Nagar and saw that door of the gallery was closed from inside. The door of the room situated by side was closed from outside. He opened the kundi of the door and found that his brother Ram Sumer was lying dead and blood was oozing out from his dead body. He cried to see the dead body of his brother. Residents of the street gathered there and someone informed the police. Police arrived there. He also informed his brother Somnath regarding the incident and asked his brother and wife SC No.15/08 State Vs. Udaiveer Singh Page 17/40 and children of the deceased to come to Delhi. He made his statement to police Ex.PW3/A which was signed by him at point X. Police lifted sample of blood vide seizure memo Ex.PW3/B, sample of blood control earth vide seizure memo Ex.PW3/C, sample earth vide seizure memo Ex.PW3/D, broken portion of the plaster of the wall having blood stains vide seizure memo Ex.PW3/E, bed sheet and lungi vide seizure memo Ex.PW3/F, bullet and bullet cover vide seizure memo Ex.PW3/G after sealing the same with the seal of R.K. All the documents were signed by him at point X. Dead body of his brother was sent to LBS Hospital for postmortem. Dead body was identified by him vide seizure memo Ex.PW1/B and dead body after postmortem was received by him vide memo Ex.PW1/B and after identifying the dead body statement Ex.PW3/H was recorded regarding identification of dead body and it was signed by him at point X. PW3 identified bed sheet as Ex.P-1, lungi as Ex.P-2, underwear as Ex.P-3 and chappal as Ex.P-4 in the court.
33. In view of the principles of law discussed in case Dr. Jhamman Lal v. State (Delhi Administration), (supra), and Islam-ud-din alias Islamu v. The State, (supra), the testimony of PW1 to PW3 are required to be analyzed with great care and caution.
Recovery of Arm (katta) of the basis of Disclosure Statement
34. It would be appropriate to reproduce Sections 24, 25, 26 & 27 of the Indian Evidence Act, which reads as under:
SC No.15/08 State Vs. Udaiveer Singh Page 18/40"24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.-A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
25. Confession to police-officer not to be proved.-No confession made to a police-officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.-No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
35. Ld. Defence Counsel further argued that recovery of alleged katta is not admissible in evidence as it was recovered from the place where access of general public was available. In support of his arguments he relied on a case Manjeet Singh v. State, 2009 [2] JCC 1501 wherein the Delhi High Court observed that:
"35. Where an article is recovered from a place accessible to all, the recovery thereof pursuant to the disclosure statement by an accused in rendered meaning-less. (See : the decision of Supreme Court reported as State of H.P. v. Inder Singh AIR 1999 SC 1293). In the instant case, the recovery of the gun from inside the room of Santosh and her husband, at the instance of the appellant, inspires no confidence. The recovery of the used cartridge from the street accessible to all also does not inspire SC No.15/08 State Vs. Udaiveer Singh Page 19/40 any confidence. The gun and the used cartridge were not found to be concealed and were visible to all. Applying the ratio laid down by the Supreme Court in Inde Singh's case (supra), no sanctity could be attached to the said recoveries."
36. Ld. Defence Counsel further relied on a case Chander Shekhar @ Shekhar v. State of NCT of Delhi, 2011 [3] JCC 2053 wherein the Delhi High Court observed that:
"58. Similarly, Section 25 of the Evidence Act places a bar to the admissibility of any confessional statement made by an accused to a police officer. Section 26 goes further and bars a confessional statement made to any person other than a Magistrate if the accused is in police custody. Section 27 is in the form of a proviso to Section 25 and 26 and provides for admission of so much part of the information given by an accused, whether it amounts to a confession or not, as it relates distinctly to the facts thereby discovered. Thus, there is partial lifting of ban against confessions and statements made to the police, if a fact is actually discovered in consequence of an information given by an accused limited to the discovery."
37. He further relied on a case Savita Alias Babbal v. State of Delhi, 2011 [3] JCC 1687 wherein the Delhi High Court observed that:
"47. ***To place the matter in proper perspective, since the mind has a tendency to boggle, a few tests have been mandated in a string of judicial decisions. Thus, in Hanumant v. State of Madhya Pradesh, AIR 1953 SC 343, the Supreme Court indicated the correct approach of the Courts, in the following words:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human SC No.15/08 State Vs. Udaiveer Singh Page 20/40 probability the act must have been done by the accused."
38. My attention goes to a case Sanatan Naskar Vs. State of West Bengal, (supra) wherein the Apex Court observed:
"13. The contention is that the confessions extracted by the police officer are illegal and inadmissible, the alleged recoveries made in furtherance thereto and preparation of seizure memos are also unsustainable. In other words, these exhibits cannot be admitted or read in evidence. We may notice, on the contrary, that even the learned trial court has specifically dealt with this objection. While referring to the cross-examination of PW13, efforts were made to involve the local witnesses, which he did not succeed and later when the seizure memos were prepared PW8 and PW9 were present. Ext.18 clearly shows their presence and nothing contrary was suggested to them in their cross- examination. Their presence during search and seizure of the house of the accused on two occasions has been completely established by the prosecution. No confessional statement made to the police, as alleged, has been relied upon by the courts. It is only the objects recovered, in furtherance to the statement of the accused while in police custody like wrist watches, camera, etc. that has been relied upon to by the Court to complete the chain of events relating to the crime in question. Thus, any of these acts are not hit by the provisions of Section 27 of the Act.
14. Usefully, reference can also be made to the judgments of this court enunciating the principles under Section 27 of the Act. The Court in Anter Singh v. State of Rajasthan has held that : (SCC p.664, para 14) "14. ... the first condition necessary for bringing [Section 27] into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that, only 'so much of the information' as relates distinctly to the fact thereby discovered as admissible. The rest of the information has to be excluded."
15. The Court further held as under: (Anther Singh case, SCC p.665, para 16) SC No.15/08 State Vs. Udaiveer Singh Page 21/40 "16. The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
Similar view was taken by this Court in Salim Akhtar vs. State of U.P."
39. PW4 Sanjay and PW5 Sheikh Bilal besides, PW24, PW26 & PW28 are the witnesses of recovery of Katta. PW4 deposed that on 04.06.2008 at about 5-5:30 p.m., the IO of this case along with two police officials and accused Udaiveer Singh present in the court came to them and asked them to take out Katta from Hindan River at the instance of police. He along with P. Lal went inside the river and katta was taken out from Hindan River by him and P. Lal. Thereafter, IO prepared sketch of the katta Ex.PW4/A and it was taken into possession. He identified the katta in the court Ex.P-4. Statement of PW5 Sheikh Bilal is almost on the same line except that he did not identify the Katta and he did not support the prosecution case on preparation of documents and seizure of the Katta.
SC No.15/08 State Vs. Udaiveer Singh Page 22/4040. PW28 on this aspect deposed that during the inquiry he came to know about the involvement of one doctor who was residing in front of the house of the deceased. So he called him at the spot and gave a notice to him under section 160 of the Code. After making inquiry he was allowed to leave the spot. On 03.06.2008 he made inquiries from Shyam Kumari, wife of the deceased and arrested accused on 04.06.2008 vide memo Ex.PW24/B and personal search memo Ex.PW24/C. He interrogated accused Udaiveer vide statements PW28/B. On pursuance of disclosure statement accused got recovered one desi katta from Hindan river in Ghaziabad with the help of private divers. He prepared sketch of said katta Ex.PW4/A and after measuring it converted it into a sealed pullinda and sealed with the seal of R.K. and took it into possession vide memo Ex.PW24/E. He also prepared pointing out memo Ex.PW24/F of place where accused had thrown said desi katta to Hindan river. Testimonies of PW24 and PW26 are on the same line.
41. It has been argued on behalf of Ld. Defence Counsel that there are inconsistencies and contradictions in the testimonies of PW4, PW5 and police witnesses, PW24, PW26 and PW28 of recovery of the Katta. PW4 and PW5 are the fake witnesses. When summons for appearance in the court were sent, it was reported that they were not available at given addresses.
SC No.15/08 State Vs. Udaiveer Singh Page 23/4042. In order to prove his defence, DW9 Ct. Ashwini was examined. He, inter alia, deposed that he went to serve the notice to witness Sanjay at the given address. On visit at given address he came to know that he had vacated the tenanted premises on 26.05.2009. He had also visited the address of Sheikh Bilal and he found that no such person was ever resided at the given address. He proved his report as Ex.PW9/C and Ex.PW9/D. Contradictions in testimonies of Prosecution Witnesses
43. Ld. Defence Counsel further argued that testimonies of prosecution witnesses are not consistent and there are material contradictions and improvements therein. PW2 also made considerable improvements in her statement, besides, making inconsistence and contradictory statement which create doubt in truthfulness of their testimonies.
44. In support of his arguments he relied on a case Ashok Narang v. State, 2012 [1] JCC 482 wherein the Delhi High Court observed that:
"104. If one integral part of the story put forth by witness was not believable, then the entire case failed. It is settled law that where witness makes two inconsistence statements in their evidence either at one stage of both stages, the testimony of said witness becomes unreliable and unworthy of credence and in the absence of special circumstances; no conviction can be based on the evidence of said witnesses. For these reasons, therefore, when learned Trial Judge disbelieved the evidence of prosecutrix and her father in regard to her father, it was not open to him to have convicted the appellant on the same evidence with respect to which suffered from some infirmity for SC No.15/08 State Vs. Udaiveer Singh Page 24/40 which the said evidence was disbelieved."
45. In support of his arguments Ld. Defence Counsel further relied on a case Sunil Kumar Sambhudayal Gupta and Others v. State of Maharashtra, 2011 (1) RCR (Criminal) 57 wherein the Supreme Court observed that:
"16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in convict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, 2010(5) R.C.R. (Criminal) 513: (2009) 11 SCC 334)."
[Emphasis supplied]
46. On the other hand, Ld. Additional Public Prosecutor submitted that there was no material inconsistency or contradiction either in the testimony of PW2 or amongst the testimonies of other PWs. He submitted that minor contradictions are bound to happen and these are required to be ignored.
47. In support of his arguments Ld. Additional Public Prosecutor relied on a case Leela Ram (Dead) through Duli Chand v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588 : 1999 A.I.R. (SC) wherein the Apex Court Observed:
"9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is SC No.15/08 State Vs. Udaiveer Singh Page 25/40 bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 : AIR 1985 SC
48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."
48. On analyzing the prosecution evidence I found contradictions and improvements on the following points:
SC No.15/08 State Vs. Udaiveer Singh Page 26/40Reaction of Smt. Shyam Kumari on receipt of Phone call
49. PW1 on this aspect deposed that after hearing the phone call from Delhi, his sister in law (bhabhi) started weeping and when he asked as to what had happened she became unconscious. On the other hand, PW2 Shyam Kumari deposed that on hearing, "mene Ram Sumer ka kaam tamaam kar diya hai apne raste ka kanta hata diya hai, tum Delhi aa jao" (I have removed the thorn of my way by killing Ram Sumer. You come to Delhi), she started weeping.
Possession of Mobile Phone by Shyam Kumari
50. PW2 Shyam Kumari deposed that she did not have telephone. On the other hand, PW1 deposed that whenever Shyam Kumari used to come to village, her husband used to talk to her on her mobile phone.
Search of Katta
51. PW4 Sanjay deposed that the Katta was taken out from Hinden River by him and P. Lal. In cross examination he stated that the Katta was recovered by him. On the other hand PW5 Sheikh Bilal deposed that the Katta was recovered by him.
Preparation of Sketch of the Katta and Recording of Proceedings
52. PW4 deposed that IO prepared the sketch of the Katta Ex. PW4/A which bears his signature at point A. Thereafter the police had SC No.15/08 State Vs. Udaiveer Singh Page 27/40 taken the Katta. He could not tell that police sealed the Katta in his presence after keeping the same into cloth pullinda and it was taken into possession vide memo Ex. PW4/B. He admitted that his statement was recorded in the night. He resiled from his statement. On the other hand PW5 deposed that he could not say whether police had prepared sketch of Katta in his presence or if the Katta was kept in cloth pullanda. He further deposed that he could not identify the Katta if shown to him. He was declared hostile. PW5 deposed that he did not make any statement to the police. PW24 deposed that statements of divers were recorded at the spot. PW26 deposed that writing work was done white sitting near the riverside.
Presence of other Divers at Hinden River
53. PW4 deposed that 5/6 divers used to remain present at Hinden River everyday and there names are Anees, Jahid, Mohd., Mansoor, etc. At the relevant time he and only P. Lal were present. On the other hand PW 5 deposed that 4/5 other divers, besides him and Sanjay, were present at Hinden River.
Availability of Tea Shop and Shikanji Shop
54. PW4 deposed that they were taking tea when Delhi Police came there. On the other hand PW 24 deposed that divers were found walking there. he also deposed that did not see Jain Shikanji shop at the the corner of bridge at Hinden River. He did not see Tea Shop near the Hinden River. PW26 deposed that there was no shop of Jain Shikanji at SC No.15/08 State Vs. Udaiveer Singh Page 28/40 Hinder River. There was no other shop. PW28 deposed that he did not recollect if Jain Shikanji shop was there near the place of recovery.
Availability of UP Police at Hinden Rever
55. PW4 deposed that there was a check post of UP police at the bridge of the Hinden River and police remained there round the clock. PW5 deposed that UP Police had been brought there. On the other hand PW24 deposed that he did not see any police post at Hinden Rever. He did not see UP police at Hinden River till he remains present there. PW28 deposed that no police personnel of UP police came in his contact during that period.
Vehicle used By Delhi Police for going Hinden River
56. PW4 deposed that Delhi Police reached there on two motor cycles. PW5 deposed that he was unable to tell by which vehicle police came there. On the other hand PW 26 deposed that he, constable Lalit and Inspector Rajesh went to Hinden River by police gypsy. They went to the Hinden River by taking route of NH 24 via Dabur. PW24 also deposed that they used police gypsy. PW28 deposed that he and two constables went to Hinden River in police vehicle for the purpose of making recovery from the Hinden River via Dabur Crossing.
Availability of Light and Place of Recording of Proceedings
57. PW4 deposed that his statement was recorded at Hinden River at about 7.30/8.00 P.M. There was no light beneath the bridge but SC No.15/08 State Vs. Udaiveer Singh Page 29/40 there was light on Board. Police left at about 8/8.30 P.M. On the other hand PW5 deposed that his statement was not recorded by police and there was no light beneath the bridge. PW24 deposed that documents were prepared while sitting on a stone.
Injuries on the Dead Body of Deceased
58. PW7 doctor proved PM Report Ex. PW7/A showing 10 injuries including lacerated wounds and fracture on ribs of deceased. On the other hand PW14 deposed that he saw only two visible injuries.
59. My attention goes to a case Babu Lal and Others v. State, 1994 JCC 111 wherein, the Delhi High Court observed that:
"10. As far as these appellants, namely Babu Lal, Arjun Das and Leela Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Das who are the real brothers. The other alleged eye witnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of passage of time. Moti Lal, PW13 on whose statement the case was registered has also not supported the case of prosecution in as much as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured.*** There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned, is unbelievable and doubtful. The weapon of offence, Rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by the Rampi."
60. It has to be seen, if the above referred contradictions can be termed as minor contradictions or these are the contradictions on SC No.15/08 State Vs. Udaiveer Singh Page 30/40 material points which may create any doubt about the genuineness of the occurrence under adjudication and particularly recovery of the Katta. After carefully scrutinizing the evidence available on record, I am of the view that the principles of law laid down in Leela Ram (Dead) through Duli Chand v. State of Haryana, (supra), are not applicable in the present case. I am of the view that principles of law laid down in case Ashok Narang v. State, (supra), Sunil Kumar Sambhudayal Gupta and Others v. State of Maharashtra, (supra), Babu Lal and Others v. State, and are applicable on the facts of present case. The discrepancies in the testimonies of the prosecution witnesses particularly mentioned here in above have created doubt in the truthfulness of the prosecution case. I am, therefore, convinced that arguments of Ld. Defence counsel are sustainable. Accordingly, it is held that the prosecution could not prove beyond suspicion and reasonable doubt that the Katta Ex.P4 was recovered consequent upon the disclosure statement Ex. PW24/A allegedly made by accused from Hinden River.
Motive To Commit Murder
61. Ld. Addl. Public Prosecutor argued that there was motive with accused to commit crime as he wanted to get the property of the deceased and to achieve that object he committed murder of the deceased.
62. Ld. Defence Counsel argued that testimony of Smt. Shyam Kumari wife of deceased or any other witness could not prove any SC No.15/08 State Vs. Udaiveer Singh Page 31/40 motive for the accused to kill the deceased. In support of his arguments he placed reliance on a case Kalloo Passi v. State, 2009 [2] JCC 1206 wherein the Delhi High Court observed that:
"26. Even otherwise, the evidence relating to motive of the deceased was the testimony of Booty PW-11, to the effect that the appellant had told him that the deceased was having an evil eye on his wife about a year prior to the incident. There is no evidence to show that the appellant was having a ill-wil towards the deceased on the date of the incident. One year back is too remote in point of time."
63. On considering the submissions of Ld. Addl. Public Prosecutor and Ld. Defence Counsel and analyzing the evidence on record I am of the view that the prosecution could not prove the motive of accused to commit murder of the deceased. The reasons which support my decision in this regard are firstly, the there was no ill will enmity, hostility or reason for the accused to commit alleged crime. Prosecution witnesses admitted this fact, e.g., PW2 deposed that there was no enmity between her and accused or between her relative and accused. PW28 admitted in cross examination that during investigation no enmity between the deceased and accused was established.
64. Secondly, accused claimed that he was falsely implicated as he had lent a sum of Rs 2,50,000/- to the deceased for purchase of agricultural land so that he could not get back his money. PW2 did not deny this fact and only expressed his ignorance about the same. She deposed that she did not know whether there was any money transaction between her husband and the accused. PW28 IO deposed that he did not know if the deceased had taken a loan of rupees two lac and fifty SC No.15/08 State Vs. Udaiveer Singh Page 32/40 thousand from the accused for buying agricultural land.
Mobile Call Details Record
65. Ld. Addl. Public Prosecutor submitted that mobile phone call record showing the conversation between the accused on one hand and Smt. Shyam Kumari and others on the other side connect the accused with the crime.
66. Ld. Defence Counsel argued that mobile phone call details are not admissible in evidence as certificate as required u/s 65 B of the Indian Evidence Act has not been proved by the prosecution. He relied on a case Parminder Singh Sethi & Anr. v. State & Anr., 2011 [3] JCC 1814 wherein the Delhi High Court observed that:
"3. ***However, the trial court, and in our view rightly so, held that the said mobile call records were inadmissible in evidence in view of the clear provisions of Section 65 B of the Indian Evidence Act, 1872 as also the clear position in law in the case of Rakesh umar & Others v. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru: 2005 (3) JCC 1404 : 2005 (11) SCC 600."
67. PW9 proved the call details record of Mobile No. 9984821767 from 02.05.2008 to 02.06.2008 as Ex.PW9/A and Ex.PW9/B consisting of four pages. PW10 proved call details of Mobile No.9958752154 from 01.04.2008 to 01.06.2008 as Ex.PW10/A consisting of 21 pages and call details of Mobile No.9910821061 for that period as Ex.PW10/B consisting of five pages. He also proved documents of ownership of Mobile No.9958752154 in the name of SC No.15/08 State Vs. Udaiveer Singh Page 33/40 Parasnath as Ex.PW10/C and ownership of Mobile No.9910821061 in the name of Shyam Kumari as Ex.PW10/D, and ID proof was proved as Ex.PW10/E.
68. On perusal of Ex.PW10/D I find that it is an Airtel Prepaid Enrollment Form of Shyam Kumari for Mobile No.9910820161. Ex.PW10/E is photostat copy of identity card of Shyam Kumari issued by Election Commission of India. Ex. PW20/A shows that owner of Mobile Number 9868579935 was accused Udaiveer. Ex. PW10/C shows that owner of Mobile Number 9958752154 was Paras Nath. On perusal of Call Detail Record Ex.PW9/B and Call Detail Record Ex.PW10/A, I find that there had been a communication between the Mobile No. 9910821061 & 9868579935 since 02.04.2008. There was also a call at telephone No.9868579935 on 01.06.2008 three times. That has established that probably the holder of above mentioned two telephone number might be in active conversation with each other. The occupant of telephone Number is Shyama Kumari and occupant of telephone number is Anwar Ali. On perusal of CDR of Mobile No. 9958752154, Ex. PW10/A; CDR of Mobile No. 9910821061, Ex. PW10/B; Ex. PW9/A I find that these are without required certificate. Therefore, it is held that in view of the principles of law laid down in case Parminder Singh Sethi & Anr. v. State & Anr., (Supra) these are not admissible in evidence and will not provide any benefit to the prosecution.
SC No.15/08 State Vs. Udaiveer Singh Page 34/40Delay in sending Exhibits to Laboratory for testing
69. It has also been argued on behalf of Ld. Defence Counsel that there has been extra ordinary delay of more than 40 days for sending the exhibits for testing which has created doubt in the truthfulness of the prosecution case. In support of his arguments he relied on a case Vinod v. State, 2010 [1] JCC 754 wherein the Delhi High Court observed that:
"32. The learned Trial Judge has only discussed the evidentiary worth and incriminating nature, of the cartridge being linked to the weapon recovered pursuant to the disclosure statement of the appellant and on his pointing out the recovery of the country made pistol. The learned Trial Judge has not considered the effect of the bullets not being connected to the weapon of offence. The learned Trial Judge has not discussed the effect of the seizure memo not being drawn at the spot. The learned Trial Judge has not discussed the effect of the seizure memo actually being a handing over memo. The learned Trial Judge has not discussed the effect of the cartridge being sent to the FSL Laboratory with an unexplained delay. We note that the cartridge remained with the police for five months and four days before it was sent to the Forensic Science Laboratory."
70. Ld. Defence Counsel further argued that every case has to be considered in the back ground of its actual scenario. He relied on a case Lalliram & Anr. v. State of M.P., 2008 [4] JCC 2813 wherein the Apex Court observed that:
"As rightly contended by learned counsel for the appellants a decision has to be considered in the background of the factual scenario."
71. On perusal of file, I find that there was considerable and unexplained delay of about 40 days in sending exhibit i.e. dikky to FSL. Besides, no definite report from FSL could be obtained on this SC No.15/08 State Vs. Udaiveer Singh Page 35/40 exhibit. In view of the principles of law laid down in case Vinod v. State, (Supra), this has further provided benefit to the accused.
Chain of Circumstances whether broken?
72. Ld. Defence Counsel further argued that accused is entitled to get benefit of doubt as prosecution could not proved its case beyond suspicion and reasonable doubt. In support of his arguments he relied on a case Sunil Rai @ Paua & Ors. v. Union Territory, Chandigarh, 2011 [4] JCC 2453 wherein the Apex Court observed that:
"33. It is seen above that the quality of the prosecution evidence is too poor to satisfactorily establish any of the first three circumstances for holding the appellants guilty of the offence of murder. As none of the three circumstances were sufficiently proved, there is no question of taking them as links forming an unbroken chain that would lead to the only possible inference regarding the appellant's guilt."
73. Ld. Defence Counsel further argued that present case is based on circumstantial evidence and the prosecution has failed to prove all the chains of circumstances to connect the accused with the alleged crime and therefore, accused is entitled for acquittal. In support of his arguments he relied on a case Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, 2010 [3] JCC 1648 wherein the Apex Court observed that:
"49. To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. {See Raghav Prapanna Tripathi and others v. State of U.P. - AIR.1963 SC 74}.SC No.15/08 State Vs. Udaiveer Singh Page 36/40
50. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. {See : State of UP v. Ravindra Prakash Mittal, 1992 Crl. L,J 3693 (SC) - (Para 20).
51. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v Emperor (43 Indian Cases 241 at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
52. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and is incapable of explanation upon any other reasonable hypothesis except his guilt.
53. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role."
74. On considering the rival contentions of Ld. Additional Public Prosecutor for the State and Ld. Defence Counsel for the accused persons, I come to the conclusion that prosecution could not prove its case against the accused beyond reasonable suspicion and shadow of doubt that accused Udaiveer committed murder of deceased Ram Sumer or Katta Ex.P4 was recovered consequent upon disclosure statement made by him. The reasons which support my decision are firstly that the prosecution could not prove on record beyond reasonable suspicion and shadow of doubt that accused made a extra judicial confession before Smt. Shyam Kumari.
75. Secondly, that the prosecution could not prove beyond suspicion and reasonable doubt that the Katta Ex. 4 was recovered consequent upon the disclosure statement Ex. PW24/A allegedly made SC No.15/08 State Vs. Udaiveer Singh Page 37/40 by accused from Hinden River.
76. Thirdly, that the prosecution could not prove the motive of accused to commit murder of the deceased. There was no enmity or animosity in between the parties and there was no reason or occasion for accused to commit murder of deceased Ram Sumer.
77. Fourthly, that the prosecution could not prove beyond suspicion and reasonable doubt five golden principles as laid down in case of Sanatan Naskar Vs. State of West Bengal, (supra), and Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh, (supra). It could not be established that in all human probability the murder of deceased must have been committed by the accused.
78. Fifthly, the arguments of Ld. Defence Counsel that there are reasons to presume that there was scuffle between the deceased and the assailants and when deceased might have resisted, the assailants had caused injuries including fracture on his body, is convincing. The prosecution has failed to connect the accused beyond reasonable suspicion and shadow of doubt with the alleged crime.
79. Sixthly, phone call details as produced on record, are not admissible in evidence as per Section 65 B of Indian Evidence Act.
80. Seventhly, my attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, it was, SC No.15/08 State Vs. Udaiveer Singh Page 38/40 inter alia, held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
The principles of law laid down in this case are applicable on the facts of present case and therefore, it is held that accused person is entitled to get benefit of doubt as in the present case two views, one, leads to his innocence and another leads to his involvement in the crime are possible.
81. Eighthly, as per principles of law laid down in case Pradeep Saini & Anr. v. State, 2010 IV AD (Delhi) 232, evidentiary value of prosecution witness and defence witness is the same. Accused not only examined himself as DW1 but also examined his brothers as DW2 and DW5, in addition of examining DW3 on the point of his absence from the place of occurrence. There is no convincing evidence on record of prosecution to reject plea of alibi of the accused.
82. Lastly, it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished. It would be just fair and appropriate, if accused person is given benefit of doubt as the prosecution has failed to prove its case against him beyond any suspicion or reasonable shadow of doubt.
SC No.15/08 State Vs. Udaiveer Singh Page 39/40CONCLUSION
83. Consequent upon the above discussion, reasons and evidence on record and particularly discussed here in above, it is held that prosecution has failed to prove its case against the accused Udaiveer, beyond any reasonable suspicion or shadow of doubt, that he committed offence of murder punishable under section 302 IPC or by possessing or using the alleged Katta he committed offence punishable under section 27 Arms Act. Therefore, the accused is acquitted for the offences punishable under section 302 IPC and 27 Arms Act by giving him benefit of doubt.
84. Accused is in Judicial Custody. Superintendent Jail is directed to release him from Jail, if he is not required in any other case.
85. However, the accused is directed to furnish his personal bond for a sum of Rs.20,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring his presence before the Appellate Court within a week from the date of his release from jail.
86. After furnishing of surety bonds, file be consigned to Record Room.
Announced in the open court
on 19.11.2012 (DR. T.R. NAVAL)
Additional Sessions Judge-02
East District:KKD Courts:Delhi
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