Delhi District Court
State vs 1. Lokesh @ Lucky on 4 December, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT: SHAHDARA:
KARKARDOOMA COURT: DELHI.
SESSIONS CASE No.67/2012
Unique Case ID No.38/2016
FIR No.167/2012
U/S: 302/365/201/34 IPC
P.S: Farsh Bazar
State Versus 1. Lokesh @ Lucky
S/o. Om Prakash
R/o. H.No.6/209, MohallaDungar,
Farsh Bazar, Delhi.
2. Sandeep @ Katra
S/o. Ashok Kumar
R/o. H.No.4/1841, Gali No.4,
Rama Block, Bhola Nath Nagar,
Delhi.
FIR No.167/2012, PS. Farsh Bazar Page 1 of 31 St. Vs. Lokesh @ Lucky etc.
3. Dheeraj
S/o. Shyam Sunder
R/o. H.No.6/223, DungarMohalla,
Farsh Bazar, Delhi.
Date of Institution : 04.09.2012
Date of Arguments : 04.12.2018
Date of Judgment : 04.12.2018
J U D G M E N T
Case of Prosecution
1.Criminal law was set into motion on 06.04.2012 at about 10.30 am, when Raj Pal Singh S/o. Pati Ram went to PS Farsh Bazar and lodged missing report of his son Bittoo Singh, age 19 years, R/o. R47, Gali No.6, Bihari Colony, Shahdara stating that his son Bittoo Singh left the home on 04.04.2012 at 6 pm without informing him anything and they tried to search him at their own till the time but could not succeed. They do not have any doubt on anyone. The said missing report was registered as DD No.16A and assigned to HC Charan Dass, who tried to search Bittoo Singh at his own but did not find any clue, therefore, on 20.05.2012, a case FIR FIR No.167/2012, PS. Farsh Bazar Page 2 of 31 St. Vs. Lokesh @ Lucky etc. No. 167/2012, U/s. 365 IPC was registered. On 22.05.2012 after receiving DD No.9A Inspector Prabhu Dayal alongwith other staff reached at Karkardooma Court, where all three accused Lokesh @ Lucky, Sandeep @ Katora and Dheeraj were produced as they made disclosure statements on 21.05.2012 regarding throwing the body of Bittoo Singh at Noida after killing him. They were arrested and confessed their guilt. Accused Lokesh @ Lucky also informed that earlier he had also killed one boy Pramod due to one Trishna i.e sister of the deceased and threw the body in Muradnagar Canal. Maruti Van No. DL 3C BC 0276 which was used in the commissions of offence was seized. Further investigation was carried out and after completion of investigation chargesheet was filed before the Court.
2. On appearance, in compliance of section 207 IPC, copies were supplied to accused persons, and as offence punishable u/s. 302 IPC is triable by the Court of Sessions, present case was committed to Sessions Court.
Charge framed against the accused persons
3. Charge against all the accused persons was framed u/s.
365/302/201/34 IPC, to which they pleaded not guilty and claimed trial.
FIR No.167/2012, PS. Farsh Bazar Page 3 of 31 St. Vs. Lokesh @ Lucky etc. Witnesses examined
4. Prosecution examined 38 witnesses to prove its case. The brief summary of the deposition of Prosecution Witnesses is as under:
5. PW1 is ASI Dushyant Kumar, who was posted as Duty Officer at PS Farsh Bazar and recorded the present case FIR No. 167/2012, U/s. 365 IPC and proved the copy of FIR as Ex.PW1/A. He also proved his endorsement on rukka as Ex.PW1/B.
6. PW2 is Sh. Suraj Singh, who was running a PCO and a small confectionery shop at his house Number 2650, Bihari Colony, Shahdara. He deposed that he does not know anything about this case and was only asked about his name, parentage and address telephonically by the police. He was crossexamined by Ld. Addl. PP for the State. In his cross examination he admitted that telephone number of his PCO is 22305241 but denied the suggestion that on 04.04.2012, at about 6.30/6.45 pm, two boys came in a silver colour Maruti Van and one of them made a telephone call from his PCO to the mobile phone number 8800168202. He was confronted with his statement Mark PW2/A but he denied having made such statement to the police.
FIR No.167/2012, PS. Farsh Bazar Page 4 of 31 St. Vs. Lokesh @ Lucky etc.
7. PW3 is Sh. Raj Pal Singh father of the deceased, who deposed that on 04.04.2012 at about 6/7 pm after receiving a telephone call his son left the house without telling anything and they tried to search him but could not find any clue and therefore, on 06.04.2012, he lodged a missing report Ex.PW3/A at PS Farsh Bazar. He further deposed that on 20.05.2012, his son Vinod received a telephone call from a stranger that Bittoo was taking bath at Har Ki Podi, Haridwar and that Bittoo would now remain at Haridwar and would not return back but when asked to make him talk with Bittoo, he disconnected the phone.
He was also crossexamined by Ld.Addl. PP for the State but he denied the suggestion that telephone was received from a stranger on 06.04.2012 and not on 20.05.2012 or that he had stated so in statement Mark PW3/X.
8. PW4 is Sh. Vinod Kumar brother of the deceased, who deposed that on 06.04.2012, he alongwith his father went to PS, where they lodge a missing report and when they were returning back at about 11 am, he received a telephone call on his mobile phone no. 9212687398 from mobile phone of his brother Bittoo i.e 8800168202 and that one unknown person made the call from the mobile phone of his brother and told him that his brother was taking bath at Har Ki Podi, Haridwar and when he asked him to make him talk with Bittoo, he told that he cannot talk as he was taking FIR No.167/2012, PS. Farsh Bazar Page 5 of 31 St. Vs. Lokesh @ Lucky etc. bath and would return back after few days and thereafter, he started laughing loudly and disconnected the phone.
In his crossexamination, he admitted that he made no complaint in writing to the senior police officers regarding receiving of any telephone call from the phone of his brother and that he had also gone to Sunlight Colony, Crime Branch after registration of FIR.
9. PW5 is ASI Fateh Mohammad, who was posted as Duty Officer on 06.04.2012 and recorded the missing report and proved the DD No.16 A as Ex.PW3/B.
10. PW6 is HC Paras Ram, who was posted as Duty Officer on the intervening night of 21/22.05.2012 at PS Farsh Bazar and at about 8.10 am, received an information regarding arrest of three accused by Crime Branch Sunlight Colony and proved the copy of DD No.9A in this regard as Ex.PW6/A.
11. PW7 is Sh. Sunil Kumar, Photographer, who as per direction of Incharge, Police Post Prithla took photographs of a dead body lying in an open plot in a colony near Sector 68, Noida. He deposed that due to technical default, those photographs were deleted and later on he retrieved FIR No.167/2012, PS. Farsh Bazar Page 6 of 31 St. Vs. Lokesh @ Lucky etc. those photographs through computer and handed over three computerised copy to the IO and proved the same as Ex.P2.
12. PW8 is Sh. Sher Pal, who is also witness of panchnama regarding recovery of dead body from a plot in Ratan Pal Colony, Village Ghari Chokhandi, Noida. He deposed that about 1 ½ month ago he had gone for roaming at Sector 68, Village Ghari Chokhandi and saw that a body was lying sealed in cloth by the police and his signatures were taken on Panchnama, however, he was crossexamined by Ld. Addl. PP for the State as he denied his signature on Panchnama Mark PW8/A.
13. PW9 is Sh. Vipin Yadav, who is also a witness of Panchnama. He deposed that he was taken to the PS where his name and address was noted and he had not seen anything. He further deposed that Panchnama Ex.PW9/A bears his signature. He was also crossexamined by Ld. Addl. PP for the State but he denied the suggestion that Panchnama was prepared in his presence.
14. PW10 is SI Jaivinder Singh, Head Moharrar of PS Sector58, Noida, who deposed that on 23.05.2012, he handed over exhibits i.e Viscera Jar, one envelop containing DNA of unknown alongwith PM report, Panchnama etc. sealed with the seal of doctor to IO/Inspector FIR No.167/2012, PS. Farsh Bazar Page 7 of 31 St. Vs. Lokesh @ Lucky etc. Prabhu Dayal and proved the relevant entry in malkhana register as Ex.PW10/A and B.
15. PW11 is Dr. Rakesh Kumar, ENT Surgeon, Super Specialty Children hospital, Sector13, Noida, who deposed that on 07.04.2012, on the request of police, he conducted postmortem examination on the dead body of an unknown male, aged about 27 years and proved his report as Ex.PW11/A. He further deposed that piece of sternum was preserved for DNA examination and handed over to accompanying constable.
16. PW12 is Ms. Trishna sister of the deceased, who deposed that Pooja sister of accused Lokesh used to take tuitions with her and therefore, they were on visiting terms at each others house being friends. She deposed that accused Lokesh proposed friendship to her and his sister also advised her to have friendship and thus, she and accused Lokesh became friends. She further deposed that on account of one another Pooja, a quarrel took place with accused Lokesh and his sister due to which she stopped talking with Lokesh and his sister Pooja but while she was studying in 11 th class, accused Lokesh and his sister Pooja came to her house to reconcile the differences and not to break the friendship and they again became friends. PW12 deposed that accused Lokesh is a Van driver and was involved in a murder case of one Sumit, who is referred in the present case as Pramod.
FIR No.167/2012, PS. Farsh Bazar Page 8 of 31 St. Vs. Lokesh @ Lucky etc. PW12 deposed that she used to discuss her problem with Bittoo and he advised her several times to refrain from talking with accused and her brother also advised accused Lokesh not to approach her. On 03.03.2015, examination inchief of PW12 Trishna was deferred as she started shouting in the court and her advocate informed the court that she met with an accident, due to which she suffered head injury and remained in Coma. On 05.01.2016, she again appeared in the witness box and deposed that his brother Bittoo knew about her relations with accused Lokesh and he used to object to their relationship and when this fact came to the notice of accused, he used to say that no one can come in between their relation and he can even cause harm or kill to anyone in between them. She further deposed that accused Lokesh had killed Pramod because he even had objections to her talking with Pramod despite accused having never seen her talking or meeting Pramod.
In her crossexamination, she deposed that police had not recorded her statement in this case and that she never made any complaint regarding the fact that accused told her that whosoever would come in between their relations, he can even cause harm or kill anyone.
17. PW13 is Dr. A.Saha, Casualty Medical Officer, Dr. Hedgewar Hospital, who deposed that on 25.05.2012, he examined one Rajpal Singh and Sharda Devi, parents of the deceased vide MLC Ex.PW13/A and B. FIR No.167/2012, PS. Farsh Bazar Page 9 of 31 St. Vs. Lokesh @ Lucky etc.
18. PW14 is HC Bhagwat Singh, Duty Constable, Dr. Hedgewar Hospital, who deposed that he does not remember anything and thus was crossexamined by Ld. Addl. PP for the State, wherein he deposed that he cannot say whether HC Charan Dass got medically examined one Rajpal Singh and Smt. Sharda Devi.
19. PW15 is Sh. Manmohan, who deposed that accused Dheeraj Chandna is his cousin, who got issued a mobile Sim in his name using his driving license ID. He further deposed that accused Dheeraj was using the said Sim number 9873973449, which was in his name.
20. PW16 is retired SI Kunwar Pal Singh, who deposed that on 06.04.2012, he was posted as Chowki Incharge, Police Post Prithla, Sector 119, Noida and on receipt of an information regarding a body lying in Semiconstructed house at Noida, he alongwith Ct. Ashok Kumar and HG Raj Kumar went at Sector 121, Village Chokhandi, Noida, where a naked body of a boy with wounds in a decomposed condition was lying. He deposed that the body could not be identified and he got the body photographed through a private photographer, prepared the Panchnama Ex.PW16/A, injury report Ex.PW16/B, form13 Ex.PW16/C, Sample Seal Ex.PW16/D, preservation of DNA application Ex.PW16/G and sent the dead body to mortuary of sector 94, Noida for postmortem and one black FIR No.167/2012, PS. Farsh Bazar Page 10 of 31 St. Vs. Lokesh @ Lucky etc. thread from the foot of the body was also seized. He further deposed that after postmortem, the body was cremated and identified the photographs of the dead body as Ex.P1.
21. PW17 is Ct. Prem Pal, who deposed that on 21.05.2012, he was posted in Spl. Unit Crime Branch, Sunlight Colony and on that day he and Ct. Surender were present in the office when a secret informer came and informed that Lucky and his associates wanted in case of kidnapping and murder of Bittoo would come to Crossriver mall at about 6 - 6.30 pm in Maruti Van no. DL3 CB C0276. He produced the secret informer before senior officers and a raiding party was constituted and at about 6 pm, the aforesaid Maruti Van came from the side of Karkardi Mode and at the instance of secret informer, same was stopped on the service road of Cross River Mall near Macdonalds. He deposed that accused Lokesh was on the driver seat, accused Sandeep was sitting on front left seat and accused Dheeraj was sitting on the back seat of the Maruti Van. He proved the arrest memo, personal search memo and disclosure statement of all the three accused as Ex.PW17/A to L.
22. PW18 is HC Dinesh Kumar, who was also posted in Crime Branch of Sunlight Colony. He deposed that on 21.05.2012, at about 1.45 pm, Ct. Surender and Ct. Prempal produced secret informer, who informed FIR No.167/2012, PS. Farsh Bazar Page 11 of 31 St. Vs. Lokesh @ Lucky etc. about the Lokesh and his associates in connection with missing report of Bittoo. He also deposed about forming of raiding party and arrest of accused persons from in front of Macdonald Restaurant, CrossRiver Mall.
23. PW19 is Sh. Anuj Bhatia, Nodal Officer, Vodafone, who proved the CAF, call detail record and certificate u/s. 65B of Indian Evidence Act in respect of mobile phone No. 9873973449 which was issued in the name of one Manmohan Krishan S/o. Brijmohan and proved the documents as Ex.PW19/A to D.
24. PW20 is Inspector Vijay Nagar, Spl. Branch, who deposed that in the year 2010, he was posted as SHO, PS Krishna Nagar and was IO of case FIR No. 205/2010, u/s. 302/364/201/379/482 IPC, PS Krishna Nagar, wherein accused Lokesh with the help of his associates Sandeep Mishra committed murder of a boy Pramod and threw the body near Muradnagar Canal, U.P, who was having affair with a girl Trishna. In his crossexamination, he deposed that he does not know if accused has been acquitted in aforesaid case.
25. PW21 is SI Sunil Kumar, who deposed that on 20.05.2012, he discussed about DD No.16A with SHO and handed over the same to DO for registration of FIR. He deposed that he recorded statement of Rajpal FIR No.167/2012, PS. Farsh Bazar Page 12 of 31 St. Vs. Lokesh @ Lucky etc. Singhfather and Vinodbrother as per their version and examined the CDR of missing person.
26. PW22 is Sh. Amar Pal, who is also a witness of Panchnama. He deposed that on 06.04.2012, in a plot one naked rotten dead body of a person was found and it was spreading foul smell so the villagers informed the police and the body was seized vide Panchnama Ex.PW16/A.
27. PW23 is Sh. Nahar Singh, who is also witness of Panchnama Ex.PW16/A and deposed on the lines of PW22.
28. PW24 is Ct. Narender, who deposed that on 22.05.2012, he brought three mobile phone, Maruti Van bearing no. DL3C BC 0276 and Jamatalashi from the malkhana of PS Crime Branch, Sunlight Colony and IO of present case seized the same vide seizure memo already Ex.PW12/D1 and Ex.PW17/D3.
29. PW25 is ASI Charan Dass, to whom DD No. 16A dt.
06.04.2012 regarding missing of Bittoo Singh was assigned. He deposed that after receiving the said DD, he conducted all the proceedings to trace out the said missing person including WD message, hue and cry notice and sent letter to missing person squad, CBI and SCRB but he could not be FIR No.167/2012, PS. Farsh Bazar Page 13 of 31 St. Vs. Lokesh @ Lucky etc. traced. Later on, he joined the investigation on 22.05.2012 and proved the arrest memo as well as disclosure statement of accused persons as Ex.PW25/A to F. He remained associated in investigation with IO on later stages and is a witness of certain exhibits, which were seized in his presence.
In his crossexamination, he deposed that he visited house of Rajpal number of times and made enquiry from Trishnasister of deceased Bittoo as well as his mother Sharda Devi and by that time they had not shown any suspicion on any person. He further confirmed that IO had not recorded statement of those FSL team members, who inspected the Maruti Van.
30. PW26 is Ct. Ram Singh, who participated in the investigation on 25.05.2012 and went to Haridwar alongwith IO, Ct. Narender and accused Lokesh @ Lucky. He deposed that accused Lokesh @ Lucky led them to Har Ki Podi and pointed out the place, where he had thrown the mobile phone of the deceased in Ganga River.
31. PW27 is HC Surender Pal, who is also member of raiding party of Crime Branch, Sunlight Colony and is a witness of arrest of accused persons from Macdonald CrossRiver Mall. He also identified his signature FIR No.167/2012, PS. Farsh Bazar Page 14 of 31 St. Vs. Lokesh @ Lucky etc. on the arrest memo and other documents prepared at the time of arrest of the accused persons.
32. PW28 is Sh. Surender Kumar, Nodal Officer, Bharti Airtel Ltd. Who produced the summoned record of mobile phone No. 8800168202. He deposed that as per CAF Ex.PW28/B, the said number was subscribed to Rajpal Singh S/o. Patram. He proved the CDR, Cell Location as well as certificate u/s. 65B of Indian Evidence Act as Ex.PW28/A to Ex.PW28/E.
33. PW29 is Sh. Rajiv Ranjan, Nodal Officer, Tata Tele Services Ltd. He produced the summoned record pertaining to mobile number 9250723845. He deposed that as per CAF Ex.PW29/A, the abovesaid mobile number was subscribed to Mr. Babadur Singh S/o. Ram Dass. He proved the CDR and certificate u/s. 65B of Indian Evidence Act as Ex.PW 29/C & D. In his crossexamination, he deposed that he does not have any personal knowledge about this case and has deposed that on the basis of record of the company.
34. PW30 is ASI Nadir Khan, who was posted as MHC(M) on 22.05.2012 at PS Farsh Bazar. He proved the relevant entries regarding FIR No.167/2012, PS. Farsh Bazar Page 15 of 31 St. Vs. Lokesh @ Lucky etc. depositing of exhibits in register no.19 and the detail regarding sending the exhibits to FSL as Ex.PW30/A to Ex.PW30/C1.
35. PW31 is Sh. B.S.Paliwal, Sr. Scientific Officer, Biology, RFSL, Chanakya Puri, who deposed that the DNA Profiling (STR analysis) performed on the exhibits is sufficient to conclude that source of Ex.2 (blood gauge from Sh. Rajpalfather of deceased) and source of Ex.3 (blood gauge from Sh. Sharda Devimother of the deceased) is biological father and mother of source of Ex.1 (sternum part of DNA of deceased). He proved his detailed report as Ex.PW31/A.
36. PW32 is Ms. Anita Chari, Sr. Scientific Officer, Biology, FSL, Delhi, who deposed that from the morphological and microscopical examination the hair in Ex.1 were identified to be of human origin. She proved her report as Ex.PW32/A and her serological report as Ex.PW32/B.
37. PW33 is Lala Ram, Sr. Teacher, Govt. Sr. Secondary School, who deposed that he had worked with FSL as Lab Attendant till 19.09.2012 and on 23.05.2012, he alongwith FSL team visited PS Farsh Bazar. He further deposed that at PS Farsh Bazar, Ms. Sunita Gupta, Sr. Scientific Officer examined one Maruti Van and thereafter, they alongwith police FIR No.167/2012, PS. Farsh Bazar Page 16 of 31 St. Vs. Lokesh @ Lucky etc. went to the place of incident, where the dead body was allegedly thrown after murder.
38. PW34 is Inspector Mukesh Kumar Jain, Draftsman, who prepared the scaled site plan at the instance of IO and proved the same as EX.PW34/A.
39. PW35 is Ms. Sunita Gupta, Sr. Scientific Officer, Biology Division, FSL Rohini, who deposed that on 22.05.2012, a request was received from the SHO of PS Farsh Bazar for inspection of Maruti Van No. DL 3C BC 0276 as well as Scene of Crime. She further deposed that she constituted a team and firstly visited PS Farsh Bazar on 23.05.2012, where the Maruti Van was thoroughly examined for presence of blood or any other biological clue materials but blood could not be detected, however, few strands of hair were found below the seat and same were lifted by the IO. She further deposed that thereafter, IO/Inspector Prabhu Dayal took the FSL team to scene of crime i.e Ghari Chokhandi, Sector68, Noida and on examination blood was detected from the soil, which was lifted by the IO. She proved the crime scene report as Ex.PW35/A & B. In her crossexamination, she deposed that she alongwith her team left FSL office at about 1.55 pm, and returned back to their office at about 7.30 pm. FIR No.167/2012, PS. Farsh Bazar Page 17 of 31 St. Vs. Lokesh @ Lucky etc.
40. PW36 is Ct. Niranjan Kumar, who deposed that on 05.06.2012, he deposited the exhibits with FSL and returned the RC and acknowledgement to the MHC(M).
41. PW37 is ASI Uttam Chand, who deposed that on 13.06.2012, MHC(M) PS Farsh Bazar handed over him sealed parcels for depositing in FSL Rohini and accordingly he deposited the exhibits and returned the RC and acknowledgement to MHC(M).
42. PW38 is Inspector Prabhu DayalInvestigating Officer, who deposed about the steps taken during investigation and proved various memos prepared by him. He specifically deposed that he obtained the call detail record of mobile phone numbers of accused persons and found that location of accused Dheeraj on 04.04.2012 i.e on the day of incident was from Vishwas Nagar to Noida and from Noida to Vishwas Nagar. He further deposed that he found the location of mobile phone of accused Lokesh at Haridwar on 05.04.2012 and also the location of mobile phone of deceased Bittoo at Haridwar on 06.04.2012. He further deposed that he also found that on 06.04.2012, one call was made from mobile phone of deceased Bittoo to his family members.
FIR No.167/2012, PS. Farsh Bazar Page 18 of 31 St. Vs. Lokesh @ Lucky etc. In his crossexamination he confirmed that Maruti Van No. DL3C BC 0276 was seized by the special staff officials and that he had not taken the signatures of the team of FSL on the seizure memos.
Statement and Defence of accused persons
43. Statement of accused persons was recorded u/s. 313 Cr.P.C. wherein they denied the case of prosecution and claimed themselves innocent. Accused Lokesh @ Lucky opted to lead defence evidence and examined one witness in his defence.
44. DW1 is Sh. Om Prakash father of accused Lokesh @ Lucky, who deposed that he is registered owner of Maruti Omni No. DL3C BC 0276. He deposed that aforesaid Maruti Van is driven by him and nobody else drive the same. DW1 further deposed that on 19.05.2012 at about 11/11.30 pm, 56 persons in plain clothes came to his house and when he enquired from them why they came to his house, they slapped him and thereafter, they took his son and vehicle with them. In his crossexamination by Ld. Addl. PP for the State, he deposed that he purchased the Maruti Van in the year 2000 and he was using the said vehicle for his personal use and same was not used for commercial purpose at any point of time. He further confirmed that he had FIR No.167/2012, PS. Farsh Bazar Page 19 of 31 St. Vs. Lokesh @ Lucky etc. not made any complaint to any authority regarding illegal detention of his son and for taking of his vehicle.
Arguments and conclusion
45. Arguments have been advanced by Sh. K.P.Singh, Ld. Addl. PP for the State as also by Sh. R.K.Kochar, Ld. Counsel for accused Lokesh @ Lucky & Sh. Mohd. Hassan, Ld. Amicus Curiae for accused Sandeep & Dheeraj.
46. Ld. Addl. PP has argued that accused Lokesh @ Lucky had a motive to commit the offence as deceased was objecting his relation with his sister Trishna. It has been further submitted that accused Lokesh @ Lucky was also prosecuted for murder of one Pramod in case FIR No.205/2010 as he was against the talking terms of said Pramod with Trishnasister of deceased. Ld Addl. PP further argued that the Cell Location of mobile phone of accused Dheeraj as well as of Lokesh corroborates the prosecution version. Ld. Addl. PP further argued that prosecution has proved its case beyond reasonable doubt.
47. On the other hand, Ld. Defence Counsel for accused Lokesh @ Lucky argued that no explanation has come on record why FIR was FIR No.167/2012, PS. Farsh Bazar Page 20 of 31 St. Vs. Lokesh @ Lucky etc. registered after about 44 days from the day when missing report of deceased Bittoo Singh was lodged by his father. Ld. Defence Counsel further argued that link of chain of circumstances is incomplete and even the first link in the alleged circumstantial evidence as PW2 Sudarshan from whose PCO allegedly a call was made to deceased, has not supported the case of prosecution. Ld. Defence Counsel further argued that the mobile phone allegedly recovered from the possession of accused Lokesh @ Lucky is not subscribed in his name.
Ld. Amicus Curiae for accused Dheeraj and Sandeep argued that there is no reason to explain why sister of deceased namely Trishna or any other family member had not raised any suspicion upon the accused Lokesh @ Lucky prior to registration of FIR i.e for about 44 days, although allegedly he threatened to kill the deceased.
48. On 06.04.2012 a dead body in naked and decomposed condition was recovered from a semi constructed house at Sector - 121, Village Gari Chokhandi, Noida. PW16 Retired SI Kunwarpal Singh, Chowki Incharge, Police Post Prithala, Sector - 119 Noida proved Panchnama regarding recovery of dead body as Ex.PW16/A and as body could not be identified, he requested for preservation of DNA vide application Ex.PW16/G and after getting postmortem conducted, body was cremated. To establish the identity of recovered dead body as of son of PW3 Raj Pal Singh, who FIR No.167/2012, PS. Farsh Bazar Page 21 of 31 St. Vs. Lokesh @ Lucky etc. lodged DD No.16A dated 06.04.2012 i.e. Ex.PW3/A at police station Farsh Bazar regarding missing report of his son Bittoo Singh, prosecution relied upon the DNA profiling (STR analysis) report Ex.PW31/A, whereby Dr. D.S. Paliwal, Senior Scientific Officer (Biology), RFSL Chanakya Puri concluded that source of exhibit 2 (blood gauze from Sh. Raj Pal, father of deceased) and source of exhibit 3 (blood gauze from Smt. Sharda Devi, mother of the deceased) is biological father and mother of source of exhibit 1 (sternum part of DNA of deceased). There is no reason to disbelieve the DNA report Ex.PW31/A. Thus, prosecution has proved that dead body recovered from semi constructed house situated at Sector - 121, Village Gari Chowkhandi, Noida was of Bittoo Singh, S/o Raj Pal Singh. Postmortem report Ex.PW11/A proves that death of Bittoo Singh was homicide and as per opinion of PW11 Dr. Rakesh Kumar, who conducted the postmortem, death was caused by shock and hemorrhage due to ante mortem injuries.
49. There is no ocular evidence regarding the incident and the case of prosecution hinges upon last seen, call detail records and circumstantial evidence. The law related to circumstantial evidence is that these circumstances should form a chain pointing towards the guilt of the accused and the same should be so complete that there is no escape from the conclusion that within all human probability, the crime was committed FIR No.167/2012, PS. Farsh Bazar Page 22 of 31 St. Vs. Lokesh @ Lucky etc. by the accused and none else. Hon'ble Supreme Court in Sampath Kumar versus Inspector of Police, Krishan Giri 2012 (2) RCR (criminal) held that in a case of conviction on basis of circumstantial evidence certain tests must be satisfied and the Apex Court has laid down the conditions which are : The circumstances from which the conviction is to be drawn should be fully established; 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; the circumstances should be of a conclusive nature and tendency; they should exclude every possible hypothesis except the one to be proved and 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.
50. Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra (supra), a threeJudge Bench of Hon'ble Supreme Court has laid down the law as to when in a case of circumstantial evidence charge can be said to have been established. Five points enumerated in said case are summarized as under :
(i) The circumstances from which the conclusion of guilt is drawn should be fully established. The accused must be, and not merely may be guilty, FIR No.167/2012, PS. Farsh Bazar Page 23 of 31 St. Vs. Lokesh @ Lucky etc. before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) 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.
51. With this settled proposition of law, let me examine whether link of chain of circumstantial evidence as alleged by prosecution is complete and it rules out any other hypothesis except guilt of the accused persons. First incriminating circumstance which is alleged against accused persons is last seen evidence. As per prosecution case on 04.04.2012, two boys came in a silver Maruti Van at the shop of PW2 Sudarshan Lal and one of them made a telephone call from his PCO to the mobile phone No.8800168202 and after some time a boy resident of Gali No.6, Bihari Colony came and met those boys and went with them in silver Maruti Van.
FIR No.167/2012, PS. Farsh Bazar Page 24 of 31 St. Vs. Lokesh @ Lucky etc. However, said Sudarshan Lal when appeared in witness box as PW2 has not supported the case of prosecution. He was cross examined by Ld. Addl. PP for State but he denied having made such statement Mark PW2/A to police. In view thereof, prosecution has failed to prove the last seen evidence against the accused persons.
52. Second link of evidence as per prosecution case is recovery of hair from Maruti Van No.DL3CBC 0276 which allegedly used by the accused persons while taking deceased Bittoo Singh with them and was found in their possession when they were arrested from Mc' Donald, Cross River Mall. In this regard PW35 Ms. Sunita Gupta, Senior Scientific Officer (Biology Division), FSL Rohini deposed that on 22.05.2012 a request was received from the SHO PS Farsh Bazar for inspection of Maruti Van No.DL3CBC0276 as well as scene of crime and she along with her team visited police station Farsh Bazar on 23.05.2012 and inspected the Maruti Van for presence of blood or any other biological clue materials but blood could not be detected, however, few strands of hair were found below the seat and same were lifted and she proved her report in this regard as Ex.PW35/B. The so recovered strands of hair were examined by PW32 Ms. Anita Chhari, Senior Scientific Officer (Biology) FSL, Delhi and as per her report Ex.PW32/A, the hair in exhibit 1 were identified to be human in origin. No DNA examination of these strands of FIR No.167/2012, PS. Farsh Bazar Page 25 of 31 St. Vs. Lokesh @ Lucky etc. hair was got conducted. The report Ex.PW32/A only shows that the strands of hair as allegedly recovered from the Maruti Van No. DL3CBC 0276 are of human in origin. In absence of evidence that the hair strands as recovered from Maruti Van No. DL3CBC0276 were of deceased Bittoo Singh, this link of evidence is also incomplete and not proved against the accused persons.
53. Third incriminating circumstance as per prosecution case is that accused Lokesh @ Lucky had a motive to kill the deceased as he was in relationship with the sister of the deceased and prior to the incident he was also involved in a murder of one Pramod due to his alleged relation with sister of the deceased for which a case FIR No.205/10 was registered u/s 302/364/201/379/482 IPC at PS Krishna Nagar. Accused Lokesh @ Lucky in his statement recorded u/s 313 Cr.P.C. has stated that he has been acquitted in aforesaid case FIR No.205/10 PS Krishna Nagar. Even otherwise it is not the case of prosecution that accused Lokesh @ Lucky has been convicted in aforesaid FIR. To prove the motive prosecution examined PW12 Ms.Trishna, sister of the deceased, who deposed that accused Lokesh was released from the jail in the year 2012 and thereupon she did not start meeting with him as her brother Bittoo used to object to their relationship. PW12 further deposed that when this fact came to the notice of accused, he used to say that no one can come in between their FIR No.167/2012, PS. Farsh Bazar Page 26 of 31 St. Vs. Lokesh @ Lucky etc. relation and he can even cause harm or to kill anyone who comes in between them. Ld. Predecessor while recording the evidence of PW12 Ms. Trishna also recorded her demeanor as she became aggressive during recording of her statement and started shouting and the mother of the witness informed the court that she was under treatment for the head injury. However, in her cross examination she confirmed that she never made any complaint regarding the fact that accused told her that whosoever will come in between their relation, he can even cause harm or kill anyone. She further admitted that police had not recorded her statement in the present case. DD No.16A dated 06.04.2012 i.e. Ex.PW3/A was lodged on 06.04.2012 regarding missing of Bittoo Singh by his father PW3 Raj Pal Singh. The said DD No.16A was assigned to PW25 ASI Charan Dass, who in his cross examination deposed that he visited house of Raj Pal number of time and made enquiry from Trishna, sister of deceased Bittoo as well as his mother Sharda Devi and by that time they had not shown any suspicion on any person. FIR of present case was registered u/s 365 IPC on 20.05.2012 i.e. after about 44 days and statement of witness Trishna u/s 161 Cr.P.C. Mark PW12/A was recorded on 04.08.2012. No explanation has come on record that if accused Lokesh @Lucky had threatened or was having enmity with the deceased due to his relation with his sister, why PW12 Trishna remained silent for such long period. DD No.16A i.e. Ex.PW3/A was remained pending till 20.05.2012 and on that day same was FIR No.167/2012, PS. Farsh Bazar Page 27 of 31 St. Vs. Lokesh @ Lucky etc. assigned to PW21 SI Sunil Kumar, who got the case FIR registered. The version of PW12 as deposed before the court that accused Lokesh @ Lucky had threatened to harm or to kill anyone is highly improbable in view of the fact that she did not inform the police or her family members about the same till allegedly her statement u/s 161 Cr.P.C. dated 04.08.2012 Mark PW12/A was recorded.
54. The fourth incriminating circumstance as alleged by prosecution is Cell location of the accused Dheeraj on the day of incident i.e. 04.04.2012 from Vishwas Nagar to Noida and from Noida to Vishwas Nagar, Cell location of accused Lokesh @ Lucky on 05.04.2012 at Haridwar and cell location of mobile phone of deceased Bittoo Singh on 06.04.2012 at Haridwar. As per prosecution case, mobile No.8800168202 was used by deceased Bittoo Singh which as per PW28 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. was subscribed to Raj Pal Singh S/o Pat Ram i.e. father of the deceased. Mobile number 9250723845 as per prosecution case was used by accused Lokesh @Lucky and as per PW29 Sh. Rajiv Ranjan, Nodal Officer, Tata Tele Services the said phone was subscribed to Mr. Bahadur Singh, S/o Ram Dass Singh R/o A 87, A Block, Shashtri Park, Delhi. Mobile No. 9873973449 was used by accused Dheeraj which as per PW19 Sh. Anuj Bhatia, Nodal Officer,Vodafone was subscribed to Manmohan Krishan S/o Brijmohan, who was examined as FIR No.167/2012, PS. Farsh Bazar Page 28 of 31 St. Vs. Lokesh @ Lucky etc. PW15 and deposed that accused Dheeraj is his cousin who got issued a mobile SIM in his name by using his driving license ID. PW4 Vinod Kumar brother of deceased deposed that on 06.04.2012 at about 11.00 am, when he along with his father were returning from police station after lodging missing report, he received a call from the mobile phone of his brother and some unknown person told him that his brother was taking bath at Har Ki Pauri, Haridwar and that he would returned back after few days and thereafter started laughing loudly and disconnected the phone. PW3 Sh. Raj Pal Singh, father of the deceased in this regard deposed that his son received a call on 20.05.2012 and despite his cross examination by Ld. Addl. Public Prosecutor, he denied the suggestion that on 06.04.2012 his son Vinod received a call that Bittoo would stay at Haridwar for few days and would returned back to the house. PW38 Inspector Prabhu Dayal in his cross examination confirmed that mobile phones as shown by him in the present case are not allotted/registered in the name of accused Lokesh @ Lucky and that allottee of the phone which was allegedly used by accused Lokesh could not be found. No SIM of aforesaid Mobile number 9250723845 was recovered from the possession of accused Lokesh @ Lucky. As per call detail record Ex.PW19/C of SIM No. 9873973449 used by accused Dheeraj on the date of incident i.e. 04.04.2012 was from Vishwas Nagar to Noida FIR No.167/2012, PS. Farsh Bazar Page 29 of 31 St. Vs. Lokesh @ Lucky etc. and from Noida to Vishwas Nagar but it alone cannot sufficient to hold that accused Dheeraj committed the alleged crime.
55. It was argued by Ld. Defence Counsel that accused Lokesh @ Lucky was arrested from his house on 19.05.2012 and thereafter, in order to falsely implicate him, present case FIR was firstly registered u/s 365 IPC on 20.05.2012. All the three accused as per prosecution case were arrested on 21.05.2012 by Special Unit, Crime Branch after receiving secret information and thereupon they allegedly made disclosure statement of present case. PW4 Sh. Vinod Kumar, brother of the deceased in his cross examination has admitted that accused Lokesh was shown to him in the office of Crime Branch after the registration of FIR but he does not remember whether it was 20.05.2012. No incriminating evidence was recovered pursuant to disclosure statement of accused persons except pointing out memo of the place of incident. No independent witness joined the investigation at the time of alleged pointing out of place of incident by the accused persons. Pointing out memo Ex.PW25/H shows that same was only witnessed by one HC Charan Dass Singh and except him no witness from UP Police or witness of Panchnama of recovery of dead body joined the investigation. PW38 Inspector Prabhu Dayal in his cross examination admitted that he had not made arrival/departure entry in police post Gari Chokhandi, when he visited scene of crime along with accused for pointing FIR No.167/2012, PS. Farsh Bazar Page 30 of 31 St. Vs. Lokesh @ Lucky etc. out the place of incident and he did not make efforts to join any villager in the investigation when he visited Gari Chokhandi, which also creates a doubt that accused persons led the police for pointing out the place of incident.
56. In view of above reasons and discussions, I am of the considered opinion that chain of circumstantial evidence is incomplete and prosecution has failed to prove its case beyond reasonable doubt, benefit of which goes in favour of accused persons. Accordingly, all the accused are given benefit of doubt and thus acquitted of all the offences with which they were charged. Their bail bonds stand cancelled. Sureties are discharged. However, they are directed to furnish personal bonds u/s 437A Cr.P.C. for a period of six months in the sum of Rs.15,000/ with one surety each in the like amount. After furnishing the bail bonds, file be consigned to record room.
Digitally signed by SANJEEV KUMAR MALHOTRA SANJEEV KUMAR Location:
MALHOTRA Karkardooma Courts, Delhi Date:
Announced in the open court 2018.12.04 16:15:21 +0530 on 04.12.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi FIR No.167/2012, PS. Farsh Bazar Page 31 of 31 St. Vs. Lokesh @ Lucky etc.