Delhi District Court
State vs Laxman Yadav on 16 December, 2023
IN THE COURT OF Ms. VANDANA JAIN
ADDITIONAL SESSIONS JUDGE-03 & SPECIAL JUDGE
(COMPANIES ACT) SOUTH WEST: DWARKA COURTS: NEW
DELHI
(MORE THAN 7 YEARS OLD)
CNR No. DLSW01-009185-2016
SC No. : 441500/2016
State Vs. : Laxman Yadav
FIR No. : 107/2016
U/s. : 302/354 IPC
P.S. : J P Kalan
1. Date of commission of offence : 11.06.2016
2. Date of institution of the case : 09.09.2016
3. Date of committal to Sessions Court : 10.11.2016
4. Name of the complainant : Smt. Ruby
5. Name of accused, parentage &
address : Laxman Yadav
S/o Sh. Tula Yadav
R/o Village Navtolia,
PS Mahe Singhia, PO
Kundal, District Samistipur,
Bihar.
8. Plea of the accused : Pleaded not guilty
9. Date on which order was reserved : 08.12.2023
10. Final order : Acquitted
11. Date of final order : 16.12.2023
JUDGMENT
1. The brief facts of the prosecution case as succinctly stated are that in the intervening night of 11/12.06.2016, deceased Parmod, husband of the complainant Ruby (PW-2), Laxman (accused herein) SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 1 of 36 and Manish (PW-3) had come to the room of the complainant to drink liquor at around 10:00 pm as they had received Rs. 2,000/- on cutting the crops (millets) in the fields. They drank till 1:00 am in the night and thereafter, accused Laxman under the influence of the liquor had thrown liquor on the pants (salwar) of the complainant with bad intention to which the complainant objected and asked him to go out of the house. The husband of the complainant did not come to know about it. Manish took the accused Laxman out of the room and came back and apprised the complainant that he had left the accused Laxman in the midway and he had gone to his hut. After some time, complainant narrated the entire incident to husband on which he became angry and left the house to teach lesson to the accused. He did not return back and at around 2:00 am, she sent her son namely Roshan to call Manish. Manish and her son Roshan went to find her husband but they could not find him and returned back. At around 6:00 am, in the morning, when the complainant reached near the hut of accused Laxman in the fields, she found her husband Parmod lying dead. She started crying and her bangles were broken there. On the basis of this complaint, the present FIR for the offence under Section 302 IPC was registered at JP Kalan.
2. The crime team inspected the spot and took the photographs. Body of deceased was sent for postmortem to RTRM Hospital. The site-plan was prepared. Accused was arrested on 13.06.2016. His disclosure statement was recorded and at his instance, the weapon of offence i.e. an iron pipe was recovered from behind the wall along side the road towards a drain at Mudhela Toll, New Delhi. The dead body of deceased Parmod was kept in the mortuary and on 14.06.2016, the postmortem of the body of the deceased was SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 2 of 36 conducted. The doctor after conducting the postmortem opined cause of death as "cerebral damage consequent upon head injuries, all injuries are ante-mortem nature and could have been caused by blunt force trauma, possible from homicidal assault". The subsequent opinion regarding the weapon of offence was taken from doctor at RTRM Hospital wherein doctor opined that "it cannot be denied that the head injury found on the body of deceased Parmod, vide PM report No. 135/16 dated 14/6/16, was not caused by the alleged weapon of offence sent for examination". The exhibits were thereafter sent to FSL Rohini and the charge sheet was filed. After compliance of Section 207 Cr.PC, the charges for the offence under Section 302/354 IPC was framed against accused on 09.12.2016 to which accused pleaded not guilty and claimed trial.
3. Matter was listed for prosecution evidence. The prosecution cited as many as 24 witnesses out of which 15 witnesses have been examined.
4. Statement of the accused under Section 294 Cr.PC was also recorded on 17.01.2018 wherein he admitted DD No.7A dated 12.06.2016 PS JP Kalan; Crime Team Report of SI Rakesh Kumar dated 12.06.2016; PM Report No. 135/16 dated 14.06.2016; Subsequent opinion dated 26.07.2016; Copy of FIR No. 107/16; Dead body identification memos; FSL report No. FSL.2016/C-6036 dated 29.09.2016 and FSL report No. FSL.2016/B-6050 dated 25.10.2016 as Ex.A-1 to Ex.A-9. On 02.04.2018, Ld. Addl. PP for the State has also dropped PW-Roshan as the relevant facts have already been proved by other witnesses in the court and PW-Rama Nand Yadav as he was not found to be medically fit.
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5. PE was thereafter closed vide order dated 30.03.2022. Statement of the accused was recorded under Section 313 Cr.PC wherein all incriminating evidence against him was put to him but accused denied all the allegations levelled against him except one wherein he admitted receiving Rs.2,000/- for cutting crops by him and deceased on 11.06.2016 and he did not opt for DE and thereafter matter was listed for final arguments.
6. After the matter was listed for final arguments, an application under Section 311 Cr.PC was moved on behalf of accused for recalling PW-14 Insp. Sudhir Kumar and PW-15 Insp. Arvind Kumar for their cross examination. The said application was allowed and they were duly cross examined and the matter was again listed for final arguments.
7. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record. The testimonies of the prosecution witnesses are detailed as under:-
8. PW1 Dr. Sunil Dalal : He has deposed that on 12.06.0216, at about 11:29 a.m., deceased Parmod was brought in the casualty and after examination he was found to be brought dead and the body of the deceased was shifted to the mortuary of RTRM hospital. He further deposed that he examined deceased Parmod vide MLC No. 3208 as Ex.PW1/1.
9. PW2 Smt. Ruby : She has deposed that on 11.06.2016, her husband Parmod (since deceased) and accused Laxman had cut SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 4 of 36 the crop of jawar in the fields of one gunga chacha and they both had taken Rs. 2,000/- from said gunga chacha in lieu of cutting crops. She further deposed that thereafter her husband Parmod and accused Laxman brought 7 liquor bottles out of said Rs. 2,000/-. Out of the said 7 bottles, 6 bottles were distributed to their other associates (labourer). She further deposed that at about 10.00 pm, her husband Parmod (since deceased), Manish and accused Laxman came to her room, where they all three had consumed liquor till 1.00 am. During that period, when her husband Parmod went for natural call (toilet), accused Laxman had offered her to drink (liquor) to which she refused and accused Laxman had thrown liquor of his glass on her wearing salwar with the bad intention. She deposed that she objected to the same and scolded him. She asked him to go to his house as he was highly intoxicated. She further deposed that Manish took accused Laxman to drop him to his house and after some time, Manish came back to her room and informed that he left accused Laxman on the midway of his house and thereafter Manish also went to sleep to his hut. After sometime, when her husband came back and noticed her wet salwar and asked her about it to which she replied him that accused Laxman had thrown liquor on her with bad intention. She further deposed that her husband Parmod got angry and left the house by saying that he was going to teach lesson to accused Laxman despite being stopped by the complainant. When he did not turn up till 2.00 am, she called Manish and Manish alongwith her son Roshan went in search of her husband Parmod (since deceased) but could not find him. In the next morning, at about 6.00 am, when she reached near the hut of the accused, she found the dead body of her husband lying in the fields near the hut of the accused and while trying to lift the dead body of her husband, her wearing bangles had broken. The SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 5 of 36 accused was not found there. She further deposed that she had called one Ramanand, who was the maternal uncle of Manish and he called other persons at the spot and police was informed about the incident. Police had come at the spot and recorded her statement Ex. PW2/1. During investigation of the present case, place of incident was inspected by the police and site plan was prepared at her instance. She further deposed that dead body of her husband was taken to mortuary of RTRM Hospital, where after postmortem examination on the dead body of her husband Parmod was conducted and thereafter it was handed over to them by the police for cremation vide handing over memo Ex. PW2/2. She was duly cross examined by ld. Counsel for accused.
10. PW-3 Sh. Manish : He deposed that on 11.06.2016, at about 10.00 pm, accused Laxman and Parmod (since deceased) were consuming liquor in the jhuggi of Parmod in the said village and Parmod called him to join them for having drinks, but he refused. He further deposed that he asked him to eat meat and rice and he ate the same. In the meanwhile, deceased Parmod and accused Laxman kept on consuming liquor. He further deposed that Ruby W/o Parmod scolded accused Laxman as he was out of control and then asked him to drop accused Laxman to his jhuggi. He took accused Laxman and left him on the road in between. He further deposed that after some time he came to the jhuggi of Parmod and told them that he had left Laxman on the way to his jhuggi. About 1-1/2 hours after that, Roshan (son of Parmod and Ruby) came to his jhuggi and made him awake. He further deposed that Ruby informed him that since accused Laxman had thrown liquor on her and she had informed about it to her husband Parmod, her husband told her that he would teach a lesson to SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 6 of 36 accused Laxman. She further told that thereafter Parmod had gone to the jhuggi of accused Laxman and he had not returned since then. He further deposed that she asked him to go to the jhuggi of accused Laxman to see Parmod. Then Roshan and he went to the jhuggi of accused Laxman but neither accused Laxman nor Parmod were present there and he came back to his jhuggi and slept. He further deposed that in the morning next day i.e. on 12.06.2016, Ruby told him that her husband Parmod has been murdered. He further deposed that his statement was recorded by the police. He was duly cross examined by ld. Counsel for accused.
11. PW-4 HC Banwari Lal : He has deposed that on 12.06.2016, he went at Mahavir's agricultural field in Jaffarpur Kalan where near one hut, a dead body of male was lying and there was blood on the ground. He further deposed that he clicked the photographs from various angles which were exhibited as Ex.PW4/1 and their negatives as Ex.PW4/2.
12. PW-5 Const. Sudhir : He has deposed that on 12.06.2016, he alongwith other police staff reached at the agricultural field of Mahavir where one male dead body was lying there and some broken bangles of red colour were found near the body. He further deposed that IO/ SI Arvind prepared the rukka and handed over to him and he got the FIR of the present case registered. He was duly cross examined by ld. Counsel for accused.
13. PW-6 Sh. Subhash : He has deposed that on 11.06.2016, accused Laxman Yadav and Parmod (since deceased) had contacted him and asked him that they would cut the jawar crop in his field and SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 7 of 36 his family members had given Rs.2,000/- as labour charges to them on the same day. He was duly cross examined by ld. Counsel for accused.
14. PW-7 Sh. Mahavir Singh : He has deposed that he has given his land to Sh. Dharamvir for agricultural purpose for last 12 years. He was duly cross examined by ld. Counsel for accused.
15. PW-8 Sh. Dharamvir Singh : He has deposed that the agricultural land of Sh. Mahavir Singh is adjacent to his fields and he is doing farming on his land for the last 12-13 years on rent (batai). He further deposed that he and his son Manoj used to go to the field. About 1 ½ month prior to the incident, he had given the land of Mahavir Singh for the purpose of agriculture to Raju R/o Village Mundhela Khurd and accused Laxman was his associate. No writing work was done to this effect. He further deposed that he had given the land on 50-50 sharing basis to Raju. There was a pucca kothra (room) in his field and a kachcha hut was built by Raju in the land of Mahavir Singh for the purpose of taking care of the land and crops. Raju used to get work on the agricultural land with the help of labourers. Accused Laxman also used to live in the kachcha hut. He was duly cross examined by ld. Counsel for accused.
16. Since PW-8 Sh. Dharamvir Singh did not disclose the facts truly, he was cross examined by learned Addl. PP for the State. During his cross examination by learned Addl. PP for the State, he has admitted it to be correct that during investigation IO recorded his statement Ex.PW8/PX1 on 16.06.2016. He denied the suggestion that in the abovementioned statement he had given the fields of Mahavir Singh to accused Laxman Yadav for farming purpose on rent and he SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 8 of 36 was confronted with his statement Ex.PW8/PX1 wherein it was so recorded.
17. PW-9 HC Deepak : He has deposed that on 12.06.2016, on receiving DD No.7A, he alongwith SI Arvind reached at the spot i.e. agricultural field of Mahavir where one male dead body was found. He further deposed that the dead body was sent to mortuary of RTRM hospital through him. He was duly cross examined by ld. Counsel for accused.
18. PW-10 Const. Sumit : He has deposed that on 05.08.2016, he deposited the exhibits vide RC No.90/21/16 and 91/21/16 alongwith sample seals and FSL form to FSL Rohini and handed over the receipt to the IO.
19. PW-11 Const. Ashish : He has deposed that on 12.06.2016, at about 9:50 am, he handed over the copies of FIR to Local Magistrate and senior officer.
20. PW-12 HC Sanjay Kumar : He has deposed that on 12.06.2016, IO deposited case properties i.e. three plastic container sealed with seal of 'SKG' in the malkhana vide entry no. 1265 Ex.PW12/1 (actually Ex.PW12/3 on the photocopy of extract of Register No.19). He further deposed that on 13.06.2016, IO again deposited one pulanda sealed with the seal of 'SKG' in the malkhana vide entry no. 1267 Ex.PW12/2 (actually Ex.PW12/1 on the photocopy of extract of Register No.19). He further deposed that on 14.06.2016, IO again deposited the exhibits after PM sealed with seal of RTRM hospital vide entry no.1268 Ex.PW12/3 (actually SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 9 of 36 Ex.PW12/2 on the photocopy of extract of Register No.19). He further deposed that on 26.07.2016, he sent one pulanda to HOD, Forensic Department, RTRM hospital through HC Ishwender for getting opinion vide RC No. 88/21/16 Ex.PW12/4. He further deposed that on 05.08.2016, he sent six sealed pulandas to FSL, Rohini with sample seal through Ct. Sumit vide RC No. 91/21/16 Ex.PW12/5 and RC No. 90/21/16 Ex.PW12/6 and Ct. Sumit handed over the copy of receipt of acknowledgement Ex.PW12/7 to him.
21. PW-13 HC Hardeep Singh : He has deposed that on 05.07.2016, he alongwith IO Inspector Sudhir Kumar went to the spot i.e. field of Mahavir and he prepared rough notes of the site and on 06.07.2016, he prepared scaled site plan Ex.PW13/1 on the basis of his rough notes. He was duly cross examined by ld. Counsel for accused persons.
22. PW-14 Insp. Sudhir Kumar : He has deposed that on 12.06.2016, in the morning hours at around 6.00 am, on receipt of an information about lying of a dead body in the fields, he alongwith other staff reached in the fields of Mahavir, village Mundela Khurd, New Delhi where dead body of a male was found lying. SI Arvind Kumar had already reached the spot and he was found there. The scene of crime was inspected. Information was given to mobile crime team. Complainant Smt. Ruby was also found at the spot and her statement was recorded by SI Arvind Kumar on which he prepared rukka and got registered the present case by sending Ct. Sudhir to PS with rukka. He deposed that after registration of the case and during investigation, he prepared site plan Ex. PW-14/A and lifted blood gauge, blood stained earth and earth control from the spot and kept the SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 10 of 36 same in three small plastic containers which were sealed by him with the seal of SKG and seized vide seizure memos Ex. PW-14/B (of two plastic containers containing blood stained earth and earth control and seizure memo Ex. PW-14/B-1 of plastic containing blood sample). The dead body of deceased was sent to RTRM hospital, Jafarpur Kalan. He also deposed that he also went to aforesaid hospital. The dead body was identified as that of Parmod. He further deposed that he filled form 25.35 and the same is Ex. PW-14/C. The statements of the family members of deceased were also recorded regarding the identification of the dead body. He further deposed that his request for conducting the postmortem is Ex. PW-14/D. He further deposed that on 14.06.2016 after postmortem, the doctor handed over sealed exhibits of deceased alongwith three sample seals and he seized the same vide seizure memo Ex. PW-14/E. The dead body of the deceased was handed over to the relatives of the deceased. He also deposed that on 13.06.2016, accused Laxman Yadav was arrested by him at PS J.P.Kalan vide arrest memo Ex. PW-14/F and his personal search was conducted vide memo Ex. PW-14/G. He further deposed that accused was interrogated and his disclosure statement was recorded wherein he disclosed that he had thrown the weapon of offence i.e. an iron pipe in a Nala near the Mundela toll. The disclosure statement of accused is Ex. PW-14/H. In pursuance of disclosure statement [for identification purpose only] accused Laxman got recovered one iron pipe from the Nala near Mundela toll. The description of the recovered pipe was mentioned in the seizure memo. The pipe was sealed in a pulanda with the seal of SKG and was seized vide seizure memo Ex. PW-14/H-1 bearing my signatures at point A. He prepared a site-plan of the place of recovery of pipe vide memo Ex. PW-14/H-2. The accused pointed out place of occurrence vide memo Ex. PW-14/H-3 and he deposited SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 11 of 36 the case property in the malkhana. He further deposed that during investigation, he recorded statement of witnesses, obtained subsequent opinion of the doctor regarding weapon of offence, sent the exhibits to FSL and on completion of investigation charge sheet was filed. He also identified the iron pipe as Ex. P-1. He was duly cross examined by ld. Counsel for accused on application under Section 311 Cr.PC.
23. PW-15 Insp. Arvind Kumar : He deposed that on 12.06.2016, he alongwith Ct. Deepak reached the spot at the fields of Mahavir, village Mundela Khurd, New Delhi where dead body of a male was found lying. He further deposed that he recorded statement of complainant Ruby and prepared rukka Ex.PW15/A. He deposed on the same line as deposed by PW-14. He was duly cross examined by ld. Counsel for accused on application under Section 311 Cr.PC.
24. I have heard Sh. Vijender Singh Kharb, Ld. Addl. PP for the State and Sh. Anil Kumar, Ld. counsel for accused.
25. Ld. Addl. PP for the State had argued that this is a case of circumstantial evidence. PW-2 Ruby is the wife of deceased Parmod and has explained the motive of committing murder of her husband by accused Laxman. It was argued that PW-2 had categorically stated during her evidence that her husband Parmod (since deceased) and accused Laxman had cut the jawar crop and had earned Rs. 2,000/-.
26. He submitted that PW6, PW7 and PW8 are the witnesses, who have established that accused Laxman was a labourer and accused & deceased had cut crops on 11.06.2016 and they got Rs. 2,000/- for the same. He further argued that they purchased 7 liquor SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 12 of 36 bottles and at about 10:00 pm, accused Laxman and one Manish along with her husband had come to her room and they consumed liquor till 1:00 pm in the night. After consuming the liquor, accused Laxman threw liquor of his glass on the salwar which was worn by her with bad intention and when this fact was told by PW-2 to her husband Parmod, he got angry and left the house for teaching the lesson to accused Laxman.
27. Ld. Addl. PP for the State had further argued that the deceased did not return back and he was searched by her eight years old son and the other person namely Manish but he could not be found. Lastly deceased had gone in a state of anger to teach a lesson to accused Laxman and when he was searched he could not be found at his hut and, therefore, the motive has been categorically proved by PW-2 for the commission of murder of the deceased.
28. He had further argued that the subsequent conduct of the accused of running away from the spot is also relevant. He had also brought my attention to illustration (f) of Section 8 of Indian Evidence Act.
29. Ld. Addl. PP for the State further argued that in the morning of 12.06.2016, PW-2 had found the dead body of her husband Parmod near the hut of accused Laxman and her broken bangles were also found at the spot which supports the version given by her.
30. He further argued that weapon of offence i.e. iron rod was also recovered at the instance of accused Laxman which is admissible SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 13 of 36 under Section 27 of Arms Act. He argued that the postmortem on the body of deceased Parmod was conducted and a subsequent opinion with respect to the weapon of offence i.e. iron rod was taken which is Ex.A-4. The said subsequent opinion was admitted under Section 294 Cr.PC by the accused. It was further argued that weapon of offence was also sent to FSL wherein DNA analysis was done and DNA in the blood of the deceased matched with the DNA in the blood found on the weapon of offence.
31. It was further argued by Ld. Addl. PP for the State that the prosecution has established the complete chain which was required to connect the accused with the offence for which the charges have been framed against him and, therefore, he is liable to be held guilty for the charges framed.
32. On the other hand, Ld. counsel for accused had argued that the case of the prosecution has not been proved at all.
33. PW-6 Sh. Subhash nowhere stated that in his deposition that he was called as gunga chacha and, therefore, the factum of receiving Rs. 2,000/- by accused Laxman and deceased Parmod stands not proved. He had further argued that empty liquor bottle from the room of deceased was never seized by the police officials and, therefore, it is not proved that accused Laxman and deceased Parmod were drinking liquor at the room of PW-2.
34. It was further argued that the salwar of PW-2 Ruby was also not seized by the IO so as to check the veracity of her version and, therefore, motive as such was not proved by the prosecution. Ld. SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 14 of 36 Counsel for accused had further argued that the weapon of offence was allegedly recovered from public place, therefore, the recovery has been planted upon him.
35. He had further argued that possibility of tampering with weapon of offence at the time of sending for subsequent opinion can be ruled out at all. He has pointed out that PW-3 Manish who was stated to be present at the time of drinking liquor with accused Laxman and deceased gave contradictory statement to that of PW-2. Though PW-2 had also stated that he also consumed liquor along with her husband and accused, however he stated that he did not consume liquor and, therefore, his testimony is not reliable.
36. It was also argued that when the deceased and the accused Laxman could not be found at midnight, no call at 100 number was ever made and no steps were taken during that aggravated position to seek help of any neighbour by PW-2. Ld. Counsel for accused had argued that the case of the prosecution does not stand proved beyond reasonable doubt and accused be acquitted for the charges framed against him.
37. It is a cardinal principle of criminal jurisprudence that the prosecution has to prove its case beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond reasonable doubt. Reliance in this regard is placed on Nasir Sikander Shaikh vs. State of Maharashtra (SC) 2005 Crl.L.J. 2621 and Jarnail Singh vs. State of Punjab (SC) 1996 (1) RCR 465.
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38. Besides the charge for the offence under Section 302 IPC, charge under Section 354 IPC was also framed against the accused on the basis of throwing liquor on the salwar of the complainant by the accused Laxman. Section 354 IPC talks about use of criminal force. Criminal force is defined under section 350 IPC. The act of throwing liquor by the accused on the salwar of the complainant does not even invoke section 354 IPC. No offence under Section 354 IPC is made out.
39. Now, let us discuss the case with respect to the charges for the offence of murder under Section 302 IPC. The present case is based on circumstantial evidence as there is no direct evidence to connect accused with crime. Before proceeding to the merits of the case, let us dwell on the law pertaining to the circumstantial evidence. In Sharad Birdhi Chand Sarda vs. State of Maharashtra 1984 AIR 1622 / 1985 SCR (1) 88, it was held that :
"3:3. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. [163C]
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and tendency; [163G]
4. They should exclude every possible hypothesis except the one to be proved; and [163H]
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. [164B] These five golden principles constitute the panchsheel SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 16 of 36 of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti. [164B].
It was further held in aforesaid case :
3:4. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no pure moral conviction. [164F]"
40. In Musheer Khan @ Badshah Khan v. State of Madhya Pradesh dated 28.01.2010, Hon'ble Supreme Court of India while discussing the nature of circumstantial evidence and the burden of proof of prosecution stated as under:-
"39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances."
41. The case of the prosecution as already discussed is based on the circumstantial evidence and the circumstances on which the prosecution has heavily relied in order to prove the guilt of the accused are as under :-
(i) Earning of Rs. 2,000/- by accused Laxman and deceased Parmod on 11.06.2016 from which they purchased liquor;
(ii) Motive;
(iii) Arrest of accused and recovery of weapon of offence at the instance of accused;
(iv) Autopsy report of deceased;
(v) Subsequent opinion taken on the weapon of offence i.e. iron pipe and Scientific evidence (DNA analysis on weapon of offence and SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 17 of 36 the blood sample of deceased).
(i) Earning of Rs. 2,000/- by accused Laxman and deceased Parmod on 11.06.2016 from which they purchased liquor
42. The wife of the deceased namely Ruby has been examined as PW-2 in the present case. She had stated that on 11.06.2016, her husband Parmod (since deceased) and accused Laxman had cut the crop of Jawar in the fields of one gunga chacha and they both had taken Rs. 2,000/- from the said gunga chacha for cutting the said jawar crops. The prosecution in order to prove the said fact had examined PW-6 Subhash, PW-7 Mahavir Singh and PW8 Dharamveer Singh. It is the story of prosecution that PW-7 Mahavir Singh had given his fields to PW-8 Dharamveer Singh for agriculture purpose for long as he was not staying in the said village. PW-7 has deposed to this effect in his examination in chief and nothing immaterial could come be elicited from his cross examination. PW-8 Dharamvir Singh, while deposing had fortified the deposition of PW-7 to this extent. He also stated that he had given the land of PW-7 Mahavir Singh for the purpose of agriculture to Raju. On this aspect, he was cross examined by the Ld. Additional PP for the State as in his statement under section 161 Cr.PC Ex.PW8/PX1, it was recorded that the said fields were given to accused Laxman for farming purposes. He denied the suggestion put forth by Ld. Addl. PP for the State in this regard. Deposition of PW-7 and PW-8 though does not prove that the land of Mahavir Singh was given for agriculture purpose to accused Laxman as recorded in the statement of PW8 Dharamveer Singh under section 161 Cr.PC. But in the cross-examination of both the witnesses, no suggestion had come that accused Laxman was not SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 18 of 36 working as a labourer in the said fields. It is further noted that PW-7 had admitted during his cross-examination that accused Laxman was not residing permanently in kaccha hut built in the fields of Mahavir Singh. This statement of PW-7 indicates clearly that he was residing in the kaccha hut in the fields of Mahavir Singh at least on and off, though not permanently.
43. Further, PW-6 Subhash has deposed that accused Laxman and Parmod had cut crops in his fields on 11.06.2016 and his family members had given Rs. 2,000/- as labour charges to them. During his cross examination also, he maintained his stand and stated that his wife had given Rs. 2,000/- to them after confirming the same from him telephonically as he had gone to some other village. The testimony of PW-2 reveals that accused and deceased had cut the crops in the fields of one gunga chacha. This statement of PW-2 is further strengthened by the cross-examination of PW-2 where the suggestion which was put to PW-2 was that share of accused was not given to him out of the payment made for cutting the said crops till date. Therefore, it stands fully proved that PW-6 Subhash had paid Rs.2,000/- to accused and deceased on 11.06.2016.
44. In addition, it is relevant to mention here that while recording the statement of accused under Section 313 Cr.PC, accused was put the incriminating evidence with respect to giving of Rs.2,000/- to accused and deceased for cutting the crops in the fields of Subhash and he replied as under :
"It is correct that money has been given and same is lying with deceased Sh. Parmod."
This answer to Question 8 put in S.A. to accused rests this issue. PW6 SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 19 of 36 Subhash is the same person who has been referred to in the deposition of PW2 and has given Rs. 2,000/- to accused Laxman and deceased Parmod.
(ii) Motive
45. PW-2 Ruby had deposed that at about 10:00 pm on 11.06.2016, accused, her husband Parmod (since deceased) and PW-3 Manish came to her room and had consumed liquor till 1:00 am. She stated that during consuming liquor when her husband had gone for attending the natural call, accused Laxman offered her to drink but she refused, on which he threw liquor on her wearing pants (salwar) with bad intention. She scolded him and asked him to go his house. PW-3 Manish took him from there to drop him and came back to the room of complainant and told her that he had left accused Laxman on the midway of his house and thereafter Manish also went to sleep to his hut. Her husband thereafter came back and noted her wet salwar and asked her about it and she narrated the entire incident on which he got angry and left the room by saying that he was going to teach the lesson to accused Laxman. He did not return till 2:00 am. She called Manish and he was sent along with her son Roshan to trace him, but they came back and informed that they could not find either accused Laxman or Parmod (since deceased). On the next morning, when she reached near the hut, she found the dead body of her husband and while lifting the dead body of her husband, her bangles were broken. The testimony of PW-2 has been corroborated by PW-3, who had supported her version to a large extent, as has already been reproduced while discussing the testimonies of PWs earlier. The part of deposition which he did not support shall be discussed in subsequent part.
SC no. 441500/2016State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 20 of 36
46. The testimony of PW-2 Ruby (wife of the deceased) and PW3 Manish is consistent on the fact that accused Laxman, deceased Parmod and PW-3 were present at the room of the complainant on the night of 11.06.2016. PW-3 stated that he did not drink liquor, however, he confirmed that accused Laxman and deceased Parmod had consumed liquor on that night. There is a discrepancy in the statement of PW-2 and PW-3 with respect to non-consuming of liquor by PW-3 but that is not a very material fact. Ld. counsel for the accused, during his arguments, had argued that no empty bottle or salwar of complainant were recovered from the room of the complainant by the police and, therefore, it cannot be said that they were drinking liquor. Undoubtedly, this was a very important piece of evidence which ought to have been collected by the IO as that could have fortified the version of complainant and PW-3 by lifting the fingerprints of accused and deceased from the empty liquor bottle but every lapse of IO in conducting the investigation cannot be said to be fatal to the prosecution. If this kind of approach is followed, then the criminals would go scot free on every lapse in the investigation.
47. There is yet another evidence to support the version of PW-2 and PW-3. The FSL result exhibited as Ex.A8 is relevant in this regard. The blood sample of the deceased was preserved by the doctor conducting the autopsy and on examination, it was found to contain ethyl alcohol 150.18mg/100 ml in blood, by FSL. The said report was admitted by accused in his statement under Section 294 Cr.PC. This report fortifies the statement of PW-2 and PW-3 who had deposed that deceased had consumed liquor in the night on 11.06.2016.
SC no. 441500/2016State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 21 of 36
48. The presence of the accused along with deceased Parmod at the room of the complainant has been fully established by the ocular testimony of PW-2 and PW-3, which is found to be consistent.
49. During her deposition, PW-2 had further stated that accused Laxman had thrown liquor of his glass on her wearing salwar and she scolded him. The wearing salwar of the complainant was never seized or sent to FSL by the police official. Again this is the lapse of investigating officer and it does not in any manner affects the testimony given by PW-2. She had stated that at the time liquor was thrown, her husband had gone for attending natural call, whereas in her statement exhibited as Ex.PW2/1, she did not say that. She only stated that her husband did not come to know about throwing of liquor by accused Laxman on her salwar at that time. Though this incident was stated to be not witnessed by anyone, who were present there i.e. neither by her husband (since deceased) nor by PW-3 Manish. However, PW-3 Manish had corroborated the statement of the complainant to the extent that she had scolded accused Laxman and thereafter PW-3 Manish had taken the accused out of her room and had left him on the way to his jhuggi. He also confirmed that he came back to the room of the complainant and told this fact of leaving accused Laxman on the way to his jhuggi and thereafter went to sleep.
50. As per further testimony of PW-2, deceased came to know about the factum of throwing of liquor on the salwar of his wife by accused got angry and went out to teach the lesson to accused Laxman. PW-3 Manish had supported the statement of PW-2 to the fact that he was called by the wife of deceased Parmod i.e. PW-2 and he along with her son Roshan went to search the deceased but neither SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 22 of 36 deceased nor Laxman could be found and they came back.
51. No cross-examination of PW-2 or that of PW-3 on these aspects in particular was done. Therefore, there is no reason to bely their testimonies to this effect. In this regard, reliance is placed on judgment of the House of Lords in Browne Vs. Dunne 2 (1893) 6 R 67 (HL) :
I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchanged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story tells he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair and fair dealing with witnesses."
52. The principle laid down in Browne vs. Dunne (Supra) was subsequently approved by Hon'ble Supreme Court of India in Rajendar Prasad Vs. Darshana Devi (2001) 7 SCC Page 69, wherein it was held :
"there is an age old rule that if you dispute the correctness of the statement of a witness you must give him an opportunity to explain his statement by drawing his attention to that part of it which is SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 23 of 36 objective to as untrue, otherwise you cannot impeach his credit................."
53. The testimony of both these witnesses has remained intact even after passing the rigors of cross examination and thus held to be reliable and trustworthy. In view of the backdrop of discussion made above, it is clearly proved that accused Laxman and deceased Parmod had consumed liquor in the intervening night of 11/12.06.2016. I do not find any reason for disbelieving the fact that accused Laxman had thrown liquor on her salwar as PW-3 had also seen PW-2 scolding the accused Laxman and he was taken out from the room of PW-2 by PW-3 at her instance.
54. The conduct of the accused Laxman i.e. he threw liquor under the influence of alcohol upon the salwar of the complainant and further on hearing the same, her husband got angry clearly are the very important circumstances duly proved by the witnesses PW2 and PW3. In Vicky Vs. State of Punjab 2006 (12) SCC 306, Hon'ble Supreme Court held that:-
"conduct of an accused must have nexus with the crime committed."
It must form part of the evidence as regards his conduct, either preceding, during or after the commission of the offence, as envisaged under section 8 of the Indian Evidence Act.
55. In the case in hand, the preceding act of the accused, i.e. an act of throwing liquor on the salwar of PW-2 is a relevant fact under Section 8 of Indian Evidence Act and has a direct nexus with the crime committed as PW2 had deposed that on knowing about throwing liquor by accused on the salwar of complainant, deceased SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 24 of 36 got angry and left the house to teach lesson to the accused. Hence, motive to commit crime by accused stands clearly established.
(iii) Arrest of accused and recovery of weapon of offence at the instance of accused
56. It has come in the testimony of PW-3 Manish that in the intervening night of 11/12.06.2016, when he along with son of complainant had gone to search Parmod (since deceased), neither deceased nor accused could be found. When PW-2 Ruby reached near the hut of accused in the morning of 12.06.2016 and found her husband lying dead and thereafter police was called. She had stated in her cross-examination that accused was not found there but it is nowhere stated in the deposition of PW-14 IO/Insp. Sudhir or that of PW15 Insp. Arvind, who reached first at the spot after receiving DD No. 7A, that they searched accused and he was not found.
57. The testimony of PW-14 and PW-15 is completely silent as to how the accused was apprehended and from where was he apprehended. Therefore, in order to seek clarity, the case diary was perused from the police file wherein it has been stated in CD No. 02 dated 13.06.2016 that at the instance of secret informer, accused was apprehended from his kothra which is in the fields of Manoj S/o Dharamvir (PW-8) and he was brought to the police station. The kothra of Dharamvir Singh is in the fields adjacent to that of Mahavir Singh wherein he was on and off residing as per the deposition of PW8 Dharamvir as has already been discussed in proceeding paragraphs.
SC no. 441500/2016State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 25 of 36
58. The arrest memo of the accused is exhibited as Ex.PW14/F. The date and time of arrest is given as 13.06.2016 at about 2:15 pm and the place of arrest is shown to be PS JP Kalan. The said arrest memo is signed by IO PW-14 Insp. Sudhir Kumar and PW15 Insp. Arvind Kumar.
59. In the absence of deposition with respect to manner of arrest of accused and straightaway proving the arrest memo by IO i.e. PW-14 and by PW-15, the arrest of accused at the given time and place becomes doubtful. It is in doubt as to whether he ran away from his hut or not. Had he run away from there after committing the offence, it was highly improbable that he would return back to the said fields/ adjacent fields for any purpose and that too on the very next day of the commission of crime.
60. PW-14 IO/SI Sudhir has deposed that pursuant to the arrest, "accused was interrogated and his disclosure statement was recorded wherein he disclosed that he had thrown the weapon of offence i.e. an iron pipe in a Nala near the Mundela toll. The disclosure statement of accused is Ex. PW-14/H bearing my signatures at point A. In pursuance of his disclosure statement [for identification purpose only] accused Laxman got recovered one iron pipe from the Nala near Mundela toll. The description of the recovered pipe was mentioned in the seizure memo. The pipe was sealed in a pulanda with the seal of SKG and was seized vide seizure memo Ex. PW-14/H-1 bearing my signatures at point A."
61. It is settled law that only the portion of the disclosure statement which leads to the discovery of a fact is admissible under SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 26 of 36 section 27 of Indian Evidence Act. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and Others Vs. Emperor (AIR 1947 PC 67 wherein it was held:
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
62. Seizure memo Ex.PW14/H1 is perused again at this moment. It is imperative to note that iron pipe was not found from Nala or in the Nala as it has come in deposition of PW-14. It was found lying behind the wall alongside the road towards drain near Mundela toll. Meaning, thereby the weapon of offence has been recovered from an open place which was accessible to one and sundry. The law in this regard has been discussed in Heera Lal @ Heera vs. State Govt. of NCT of Delhi 2014 SCC OnLine Del 7126 wherein Hon'ble High Court of Delhi has held -
"15. As regards the recovery of iron rod at the instance of appellant it may be noted that the said recovery was from an open plot behind the school and the Shani mandir and thus place was accessible to one and all. Despite the opinion of the post- mortem doctor that the injury to the deceased was possible by the said iron rod the same cannot be held discriminately against Heera Lal in view of the recovery being from an open and accessible place.
16. In the decision reported as 1950 SCC 62: AIR 1954 SC 36 Trimbak v. State of M.P. the Supreme Court held that when the recovery of incriminating articles was made from an open and accessible place it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 27 of 36 having placed the articles there and of the accused somehow acquiring the knowledge about its whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in in possession of these articles. This position was reiterated in the decision reported as (1983) 2 SCC 251 Kora Ghasi v. State of Orissa. Clarifying the legal position further in the decision reported as AIR 1999 SC 1293 State of Himachal Pradesh v. Jeet Singh the Supreme Court noted:
26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances.
Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
17. It has thus to be seen whether the recovery, if from an open and accessible place is lying concealed and could be recovered only after the accused disinterred the same from the said hidden stage. In the present case there is no such evidence. xxxxxxxxxx"
63. Now applying the same to facts in hand. It is the own case of prosecution that iron pipe i.e. weapon of offence was found from an open place and it is not a case where accused had hidden it somewhere within this open place so as to make it inaccessible to the others. The place of recovery should be such which is in the exclusive knowledge of the accused. The arrest of the accused has been made under doubtful circumstances. Furthermore, the seizure memo SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 28 of 36 Ex.PW14/H1 reveals that it bears the signature of only police officers i.e. PW-14 and PW-15 and no independent witnesses were joined while effecting recovery. There is no whisper in the deposition of IO/PW14 Insp. Sudhir or that PW-15 Insp. Arvind that they made efforts to join independent witnesses. Generally, the non-joining of independent witnesses while effecting recovery may not be that significant, but in peculiar facts of the case when the arrest of the accused has been made under doubtful circumstances, the alleged recovery of weapon of offence i.e. iron pipe at the instance of accused does not stand proved and cannot be said to be admissible under Section 27 of Indian Evidence Act.
(iv) Autopsy report of deceased
64. The postmortem on the body of the deceased was conducted on 14.06.2016 and the opinion on the cause of death was given which is as under :
"Cause of death is cerebral damage consequent upon Head Injuries. All injuries are ante-mortem in nature and could have been caused by blunt force trauma, possibly from homicidal assault. However, viscera has been preserved to rule out any intoxication"
65. After conducting the postmortem on the body of the deceased, following articles / specimens were preserved and were sealed with the seal of RTRM and were handed over to the IO which was as under :
(1) Clothes as described earlier.
(2) Blood on Gauze piece soaked, dried, sealed in an SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 29 of 36 envelope, labelled, signed and handed over to Investigating Officer with Sample seal. (3) Viscera preserved in saturated solution of common salt as preservative sealed in a wooden box, labelled, signed and handed over to Investigating Officer with Sample seal.
66. In this respect, seizure memos exhibited as Ex.PW14/E was prepared by the IO/ Insp. Sudhir Kumar on 14.06.2016.
67. PW-12 MHC(M) has deposed that on 14.06.2016, IO had deposited the said exhibits and he made the entry in this respect in Register No.19 at serial number 1268, inadvertently exhibited as Ex.PW12/3 (Ex.PW12/2 on the photocopy of extract of Register No.19). No cross examination in respect of the same was done by the ld. counsel for the accused and there is no reason to disbelieve the testimony of either the IO or that of MHC(M). There is no delay in depositing the said exhibits. Hence, the fact of depositing these exhibits by IO in the Malkhana stands duly proved.
(v) Subsequent opinion taken on the weapon of offence i.e. iron pipe and scientific evidence (DNA analysis on weapon of offence and the blood samples of deceased)
68. At the first blush, opinion taken on weapon of offence and the FSL reports suggests the prosecution has duly proved the crime but the inquisitive analysis of the same would indicate that prosecution has not able to prove this circumstance irrefutably.
SC no. 441500/2016State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 30 of 36
69. Subsequent opinion Ex.A-4 given by doctor on weapon of offence is as under:
"It cannot be denied that the head injury on the body of deceased Pramod, vide PM report number 135/16, dated 14/06/16, was not caused by the alleged weapon offence sent for examination as mentioned above."
70. FSL report Ex. A-8 along with details of the articles contained in parcels is as under:
No. of Parcels No. of seals & seal Description of Parcel/ Exhibits / Exhibits impression Parcel-7 One seal of "RTRM One sealed wooden box labelled as HOSPITAL" "PMR No. 135/16, Viscera of Pramod". It was found to contain exhibits '7A', '7B', '7C' & '7D'.
Exhibit-'7A' Stomach and piece of small intestine with contents, kept in a sealed jar.
Exhibit-'7B' Pieces of liver, spleen and kidney, kept in a sealed jar.
Exhibit-'7C' Blood sample volume 50ml approx., kept in a sealed bottle.
Exhibit-'7D' Preservative sample saturated solution of common salt, kept in a sealed bottle.
RESULTS OF EXAMINATION REPORT ON AFORESAID EXHIBITS On Chemical, Microscopic & GC-HS examination,
(i) Exhibits '7A', '7B' & '7C' were found to contain 'Ethyl Alcohol'.
(ii) Exhibit '7C' was found to contain Ethyl Alcohol 150.8 mg/100ml of blood.
(iii) Exhibit '7D' gave negative tests for common poisons.
71. As far as this report is concerned, though there was delay SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 31 of 36 in sending the same to FSL, but the seals were found to be intact. The said report was also admitted under Section 294 Cr.PC by the accused. Since this report is in respect of the specimens taken from the body of the deceased, there is no reason to doubt the same. Therefore, the said report Ex.A-8 is duly proved and is admissible.
72. FSL report Ex. A-9 along with details of the articles contained in parcels is as under :
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed plastic dibbi sealed with the seal of "SKG" containing exhibit'1'.
Exhibit '1' : Gauze cloth piece having brownish stains. Parcel '2' : One sealed plastic dibbi sealed with the seal of "SKG" containing exhibit '2'.
Exhibit '2' : Stone pieces described as blood stained earth. Parcel '3' : One sealed plastic dibbi sealed with the seal of "SKG" containing exhibit '3'.
Exhibit '3' : Soil described as earth control. Parcel '4' : One sealed cloth parcel sealed with the seal of "RTRM HOSPITAL" containing exhibit '4'.
Exhibit '4' : Iron rod having few brownish stains. Parcel '5' : One sealed envelope sealed with the seal of "RTRM HOSPITAL" containing exhibit '5'.
Exhibit '5' : Brownish colored blood stained gauze cloth piece of deceased.
Parcel '6' : One sealed cloth parcel sealed with the seal of 'RTRM HOSPITAL exhibit '6a', '6b' and '6c' described as clothes of deceased. Exhibit '6a' : Pant having faint brownish stains. Exhibit '6b' : T-shirt having brownish stains. Exhibit '6c' : Underwear.SC no. 441500/2016
State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 32 of 36 RESULT OF DNA ANALYSIS DNA (STR) analysis performed on exhibits '1' (Gauze cloth piece), '2' (Blood stained earth), '4' (Iron rod), '5' (Blood stained gauze of deceased) and '6a, 6b' (Pant & shirt of deceased) is sufficient to conclude that DNA profile generated from the source of exhibit '5' (Blood stained gauze of deceased) is similar with the DNA profile generated from the source of exhibits '1' (Gauze cloth piece), '2' (Blood stained earth), '4' (Iron rod) and '6a, 6b' (Pant & shirt of deceased).
73. PW-14 IO/Insp. Sudhir had deposed that weapon of offence i.e. iron pipe was recovered at the instance of accused on 13.06.2016 and seizure memo Ex.PW14/H1 was prepared. PW-12 MHC(M) has deposed that on 13.06.2016, he had deposited one pullanda with the seal of SKG in Malkhana and he made entry in Register No. 19 at serial number 1267 dated 13.06.2016 and same was inadvertently exhibited as Ex.PW12/2 (actually Ex.PW12/1 on the photocopy of extract of Register No. 19).
74. As far as depositing the iron pipe in the malkhana on the same very day i.e. on 13.06.2016 is concerned, PW-12 MHC(M) has deposed in this regard and same is duly proved.
75. It was only on 26.07.2016 that this weapon of offence i.e. iron pipe was sent to Forensic Department of RTRM Hospital through HC Ishwender Singh for getting subsequent opinion. HC Ishwender Singh has not been cited as a witness. The subsequent opinion was given which has been exhibited as Ex.A4 by Dr. Pawan Kumar, SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 33 of 36 Specialist, Department of Forensic Medicine, RTRM Hospital as it was admitted by accused while admitting or denying the documents under Section 294 Cr.PC. It is worthwhile to note that Dr. Pawan Kumar is the same doctor, who had given subsequent opinion and conducted the postmortem on the body of the deceased and had preserved the specimens i.e. Viscera, blood sample of the deceased in gauze piece and the clothes of the deceased, which were handed over to IO.
76. The seizure memo of the iron pipe Ex.PW14/HI shows that iron pipe contained blood stains. It was duly sealed with the seal of IO i.e. SKG and deposited in malkhana on the very same day. This sealed weapon was allowed to remain in malkhana for more than a month from the date its seizure. No reason for the said delay has been given/ explained in the testimony of IO /PW-14 Insp. Sudhir Kumar. The blood stains found on the weapon of offence is a very crucial piece of evidence which required delicate handling and prompt action. Even after one month, instead of sending the iron pipe to FSL, it was sent to the doctor of Forensic Medicine of RTRM Hospital for procuring a subsequent opinion which exercise could have been undertaken after receiving the report from FSL. The seal of the said iron pipe was broken as per the contents of subsequent opinion paper Ex. A4 and it was examined by said doctor. Meaning thereby, the said iron pipe would have been touched by the doctor and would have been taken in his hand for examination purposes. The alleged weapon was containing the blood stains as recorded in Ex.PW14/H1. The possibility of stains getting destroyed while handing/examining the weapon of offence cannot be ruled out. Same could happen even while packing/ repacking the same. Therefore, possibility of tampering with SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 34 of 36 the said weapon of offence cannot be ruled out at that stage as it was allowed to be opened before sending it to FSL. It was only after taking the subsequent opinion on 26.07.2016, that on 05.08.2016, it was sent to FSL with other exhibits lying in malkhana. Meaning thereby, that the weapon of offence was not sent in intact condition in which it was recovered, to the FSL. The very essential requirement of anything getting examined by way of scientific examination is that it should be sent immediately without any breathing period in order to rule out the possibility of any interpolation. Had there been any explanation for such conduct, it ought to have been mentioned in the deposition of IO. There is no such explanation. Though the FSL result has been admitted by accused under section 294 Cr.PC. While admitting or denying the documents, but it is to be seen with great care and caution that in what manner the exhibits were sent to FSL.
77. There is yet another fact to be considered here. In the case acceptance given by the FSL/ acknowledge regarding receipt of exhibits, exhibited as Ex.PW12/7, the weapon of offence is stated to be iron road, not as iron pipe which is mentioned in seizure memo and everywhere else. This also remains unexplained as to what was sent to the FSL, an iron pipe or some iron rod.
78. Hence, in backdrop of all findings given above, it is opined that having doubted the recovery of iron pipe at the instance of accused, the circumstance that the iron pipe carried blood of same group as that of deceased is rendered meaningless because there is no admissible evidence to connect the iron pipe (weapon of offence) with the accused.
SC no. 441500/2016State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 35 of 36
79. To sum up, to my mind, the first rule is that the facts alleged on the basis of legal inference from circumstantial evidence must be clearly proved beyond reasonable doubt which is not the case herein. The prosecution has failed to create a network from which there should not have been any escape for the accused. The complete chain in order to connect the accused with the offence charged could not be established by the prosecution and hence, accused is acquitted for the charge framed for the offence of murder under Section 302 IPC.
80. Hence accused Laxman Yadav stands acquitted of the charges framed under Section 302/354 IPC.
81. Bail bonds and surety bonds u/s 437-A Cr.P.C. furnished and accepted on behalf of accused Laxman Yadav which shall remain in force for a period of six months from today.
Digitally signed byAnnounced in open court VANDANA VANDANA JAIN
JAIN Date: 2023.12.18
on 16.12.2023 15:17:28 +0530
(Vandana Jain)
ASJ-03 & Special Judge (Companies Act)
Dwarka Courts (SW)/New Delhi
Note: This judgment contains thirty six (36) pages and having my signature on each page. Digitally signed by VANDANA VANDANA JAIN JAIN Date: 2023.12.18 15:17:37 +0530 (Vandana Jain) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/New Delhi SC no. 441500/2016 State Vs. Laxman Yadav FIR No. 107/2016 PS J P Kalan Page 36 of 36