Delhi District Court
Fir No. 243/12; State vs . Kalyan Singh @ Kalla Page 1 Of 26 on 24 December, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE No. 01/13
FIR No. : 243/12
P.S. : Mahendra Park
U/S: : 302 IPC
STATE
Versus
KALYAN SINGH @ KALLA
s/o Late Sh. Mahender Singh
r/o Kheda Mevda,
Distt. Murena, (MP)
Date of Institution : 11122012
Date of arguments : 24122014
Date of judgement : 24122014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 10092012, on receipt of information vide DD No. 6PP, NS Mandi, Azadpur, IO Inspector Darshan Singh along with police staff in Govt. gypsy bearing registration No. DL1CM3521 reached at the spot i.e. near shed No. 1516, Fruit Mandi, Azadpur where SI Shailendra Kumar along with staff were present. A loaded truck bearing FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 1 of 26 registration No. MP06HC1613 make Ashok Leyland of ten tyres was parked at the spot and in the cabin of that truck, a dead body of a person aged about 25 years, wearing Tshirt and track suit lower was found and there were injury marks on his head and ear. The head of the driver was towards steering and legs were towards the Conductor seat. The glass of driver seat window was broken. In the cabin, one bloodstained iron rod, one blanket, one old cloth and one bloodstained nut wrench were found. IO gave information to Control Room, NorthWest Distt. through wireless. Crime Team inspected the spot and photographs were taken. On the spot, complainant Amar Nath Singh met who got his statement recorded that he was working as Muneem (clerk) with Sh. Sanjeev Kumar Sachdeva, owner of Manu Fruits, A1102, Fruit Mandi, Azadpur, Delhi. On 09092012 at about 05.00 pm, a truck bearing registration No. MP06HC1613 loaded with Mausami (sweet lemon) came to their Adhat at Shed No. 15, Azadpur Fruit Mandi from Hyderabad, Andhra Pradesh which was to be unloaded at their Adhat but due to Sunday, the same could not be unloaded. In the truck, two drivers namely Deepak and Kalla came. APMC staff came for cleaning at the Adhat and there was some problem in starting the said truck. Driver Deepak brought another battery from FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 2 of 26 somewhere and at that time an altercation took place between both drivers. After cleaning, driver Deepak again parked the truck at Adhat. At about 05.45 pm, Amar Nath went to his house after giving instructions to both the drivers not to take the truck anywhere else in any condition. On 10092012 at about 05.15 am, Amar Nath came to Mandi from his house and saw that truck was not at the Adhat. He gave the information to his owner who told him to look around for the truck. Amar Nath searched the truck and found it parked at a distance of 50 feet. He peeped in the driver cabin of the truck from conductor side and found the driver Deepak lying dead and smeared in blood. He immediately dialled at 100 number. The other driver Kalla was found missing. The condition of cabin driver revealed that there might be a quarrel between both the drivers and driver Kalla fled away from there after killing driver Deepak. He was sure that driver Kalla murdered driver Deepak. On his statement, FIR u/s 302 IPC was got registered through HC Ranjan.
2. It is further the case of the prosecution that during investigation, IO prepared site plan. The case property i.e. the blood stained broken pieces of glasses from driver side, bloodstained nut wrench lying on the road near conductor side bearing "drop forged SJ 61 & 7/16 WI/2BS Bagso S/16 W3/8BS", one bloodstained FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 3 of 26 blanket of black colour, one bloodstained cloth of white colour, one bloodstained iron rod of 22.5'' bearing "MT 500 ISI", one glass beer bottle bearing "Foster's Strong & for selling in Haryana only", two glass quarter bottles of whiskey bearing "Casino Club Deluxe Whisky", one broken fan behind driver seat having black coloured plastic net and three green coloured bloodstained blades and one broken iron blade (Patti) and truck No. MP06HC1613 were taken into police possession by the IO. On 11092012, the brother of deceased Deepak namely Raj Kumar identified the dead body and he also raised his suspicion over Kalyan Singh @ Kalla as he was missing from the day of incident. Raj Kumar also disclosed that his deceased brother Deepak used to keep one mobile no. 8743866487. Statement of Raj Kumar was recorded u/s 161 Cr.P.C. On 11092012 itself, the postmortem on the dead body of Deepak was got conducted at the mortuary of BJRM hospital vide PM no. 899/12 and thereafter exhibits were taken into police possession. Statements of witnesses were recorded u/s 161 Cr.P.C. The PM report of deceased Deepak was obtained in which doctor mentioned the cause of death as craniocerebral damage as a result of blunt force diverted upon head by other party. IO also obtained opinion of doctor regarding the iron rod recovered from the spot. On FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 4 of 26 12092012, on the basis of secret information, accused Kalyan Singh @ Kalla was arrested from outside Nizamuddin Railway Station and he made disclosure statement. The bloodstained clothes of accused Kalyan Singh @ Kalla and mobile phone of deceased Deepak bearing IMEI nos. 911121500482528 and 911121500482536 were taken into police possession vide separate seizure memos. There was injury of human bite over the right index finger of Kalyan Singh @ Kalla and also injury at right eye. Accused Kalyan Singh @ Kalla was got medically examined vide MLC no. 47212 in which he told the alleged history of human bite and physical assault four days back. Accused Kalyan Singh @ Kalla refused for judicial TIP. Accused Kalyan Singh @ Kalla was taken on PC remand on 26092012 and complainant Amar Nath identified him. The statement of owner of truck no. MP06HC1613 was also recorded u/s 161 Cr.P.C. and he told that he appointed Deepak as driver on his truck and Deepak had left Hyderabad for Delhi with Mausmi loaded truck along with helper Kalyan Singh @ Kalla. Statements of witnesses were recorded. Crime Team report, photographs, PCR form and scaled site plan were obtained. The exhibits were sent to FSL Rohini vide RC no. 82/21/12. Call details of mobile phone recovered from the accused and call details of FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 5 of 26 deceased were obtained. After completion of investigation, chargesheet was filed against accused Kalyan Singh @ Kalla u/s 302 IPC.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 302 IPC was framed against the accused Kalyan @ Kalla to which he pleaded not guilty and claimed trial.
4. The prosecution examined 26 witnesses. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused did not opt to lead defence evidence.
5. I have heard Ld. Amicus Curiae for accused and the Ld. Addl. PP for the State and have perused the entire records.
6. The Ld. Amicus Curaie for the accused argued that there was no motive for murder but only quarrel had taken place between the accused and deceased. PW11 stated that the quarrel between accused and deceased did not turn into fighting and they were only shouting loudly at each other due to nonstarting of truck. PW11 had seen the accused and deceased on 09092012 for the first time. One dual mobile phone was recovered from accused on 12092012 but call details were produced only upto 09092012. No public FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 6 of 26 person was joined at the time of arrest and recovery. The night watchman who was on duty on that day was not examined. There is no weapon of offence. The blood of accused was not examined. No measurement of human bite on the body of accused was done. The investigation was not conducted fairly.
7. The Ld. Addl. PP for State argued that on 09092012 fight had taken place between the accused and deceased in the daytime and accused was having enmity towards the deceased and he murdered him in the night hours. The accused absconded from the scene of crime and he was arrested on 12092012 from outside Railway station. The mobile of deceased was recovered from the possession of accused and his bloodstained clothes were also taken into possession by the police. Bloodstained iron rod was recovered from the truck itself and there is opinion of the doctor regarding that iron rod. The incident took place in the night hours and there is no possibility of public persons availability in the night time. Public persons generally do not join as witnesses in the criminal cases.
8. It is well settled in law that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 7 of 26 incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh, 1953 Crl.L.J. 129 (SC), it was held that in dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 8 of 26 complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
9. Similarly, in the case of S. Chenga Reddy & Ors. Vs. State of A.P. (1996 (10) SCC 193), it has been observed as under:
"21.In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilty is drawn should be fully proved and as such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
10. In Padala Veera Reddy Vs. State of A.P. (AIR 1990 SC
79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) The circumstances from which an inference of guilt is sought FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 9 of 26 to be drawn, must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
11. In Birdhichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea. The doctrine of circumstantial evidence was again discussed and summarised in Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra 2008 (1) JCC 597, it was held that it is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 10 of 26 inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
12. Now, let us further examine in this case which is admittedly based on circumstantial evidence, whether the prosecution has been able to complete the chain of events in order to bring home the guilt of the accused persons. PW11 Amar Nath Singh who is said to be the last seen witness stated that on 09092012, there were two drivers namely Deepak and Kala in the truck no. MP06 HC1613 which was parked at Shed no. 15, Azadpur Fruit Mandi in front of their shed/ shop and the said truck came from Hyderabad with mausami and the same was not unloaded due to Sunday. At about 05.00 pm, the sweepers of APMC along with their staff came there for cleaning purpose. The driver of the truck Deepak tried to start the truck but it could not be started and thereafter he brought the battery from some other truck and started the truck. Due to nonstarting of truck, there was a quarrel between driver Deepak and other driver Kala. After starting the truck through FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 11 of 26 another battery by driver Deepak the staff of APMC cleaned the area and thereafter PW11 directed the driver Deepak to park his truck in front of their shop (Adath). PW11 directed both the drivers Deepak and Kala not to remove the truck from in front of their shop and left the Shed. On 10.09.2012 at about 05.15 am when he came back at Shed No. 15 in their shop, he did not see the said truck in front of their shop (Adath). PW11 made a call to his owner and informed about the missing of truck and he told him to trace the truck nearby. PW11 found the truck at a distance of 50 feets ahead of their shop. PW11 climbed the truck from the side of conductor and looked inside the cabin and found the driver Deepak lying in a pool of blood and his legs were towards the side of conductor seat and head was towards the driver seat. PW11 was shocked and scared and made a call at 100 number from his own mobile number i.e. 9310445679. The other driver Kala was not present there. PW11 had a suspicion that there was a quarrel between driver Deepak and Kala and Kala had killed the driver Deepak and left the truck. Police reached there and recorded statement of PW11 vide Ex.PW11/A and FIR was registered. PW11 stated that on his pointing out, police inspected the spot and prepared rough site plan and recorded my statement. PW11 further stated that on 26.09.2012, at about 06.00 pm, he FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 12 of 26 visited PS Mahendra Park where he saw the accused in the custody of police and identified him to be the same person as another driver of truck No. MP06 HC 1613 which came to their shop on 09.09.12 from Hyderabad loaded with Mausami. PW11 stated that accused Kalyan Singh @ Kala (correctly identified) was the same person who had quarrelled with deceased Deepak the driver of above truck on 09.09.2012. PW11 also stated that on 09.09.2012, there was no injury mark visible on the faces of deceased Deepak as well as accused Kalyan Singh @ Kala. On 26.9.2012 when PW11 identified the accused at PS, there was injuries on his face and thereafter, IO recorded his statement in this regard.
13. PW8 Raj Kumar identified the dead body of his younger brother Deepak at Mortuary of BJRM Hospital, Jahangir Puri, Delhi. PW8 stated that his brother was driver on a truck along with accused Kalyan Singh @ Kala. PW8 also admitted that he was of firm belief that accused Kala had committed the murder of his brother Deepak. PW13 Sanjeev Kumar Sachdeva stated that he runs a shop in the name and style Mannu Fruits at A1102, New Subzi Mandi, Azadpur. On 09.09.2012 at about 05.00 pm, driver Deepak and Kalla had brought one truck bearing registration No. MP06HC1613 loaded with Mausami from Hyderabad. During crossexamination, PW13 FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 13 of 26 stated that his statement was recorded by the police in the PS after two and half months. PW13 admitted that he never saw the accused in the Mandi. PW16 Bhujbal identified the accused to be the same person whom he sent on the truck with the deceased from MP on 08092012. During crossexamination by Ld. Amicus Curiae, PW16 admitted that in his presence, no quarrel had ever taken place between the accused Kalyan and deceased Deepak and they had cordial relations with each other.
14. It is evident from the said testimony of PW11 that the quarrel between the drivers Deepak and Kalla took place due to non starting of the truck and PW11 had only suspicion that due to quarrel, the driver Kalla had killed driver Deepak. Further, PW11 had not seen any injury mark visible on the faces of both the said drivers on the day of incident i.e. on 09092012. PW11 in his cross examination admitted that his statement was recorded by SHO, PS Mahendra Park and they had recorded only his statement. PW11 further admitted that quarrel between accused and deceased did not turn into a fighting and they were only shouting loudly to each other due to nonstarting of their truck. PW11 further admitted in his crossexamination that at that time, accused Kalyan Singh was taking out the battery from truck and deceased Deepak brought the FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 14 of 26 battery from some another truck. Even, PW16 also admitted that no quarrel had ever taken place between Deepak and Kalyan Singh in his presence and they were having cordial relations with each other. PW8 brother of the deceased was of the belief that the accused committed murder of his brother Deepak. PW8 also admitted that he had also not seen any quarrel between his brother and the accused. In this context, I would place a reliance upon the judgement reported in the case of Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, therein it was held that realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 15 of 26 may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.
15. PW9 Joginder Singh stated that his brother in law Raj Kumar/ PW8 telephonically informed him that his another brother in law Deepak had been murdered at Azadpur Mandi. PW9 identified the dead body of Deepak. PW10 Amar Singh stated in his examination in chief that on 11.09.2012, after the postmortem, dead body of deceased Deepak was handed over to his elder brother Raj Kumar vide receipt already Ex. PW8/B.
16. PW3 Dr. V. K. Jha, Medical Officer, BJRM Hospital proved the postmortem report Ex. PW3/A of the deceased Deepak and after examination of iron rod, he gave subsequent opinion Ex. PW3/B that injuries mentioned in the PM report could have been caused by the weapon of offence sent in sealed packet by the IO with the seal of DS or similar such weapon. PW14 Dr. Sudeep Haldar, SR Medicines, BJRM Hospital stated that on 12.09.2012, he examined Kalyan Singh vide MLC Ex. PW14/A who was having FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 16 of 26 alleged history of human bite four days back, therefore, PW14 prescribed him tetanus injection and antibiotic and thereafter referred the patient to SR Surgery. PW15 Dr. Gopal Krishna, Medical Officer, BJRM Hospital stated that on 12.09.2012, HC Raj Kumar brought Kalyan Singh @ Kalla, who was in custody, for medical examination at 9:45 pm. Kalyan Singh had the alleged history of human bite and physical assault four days back. On local examination, no fresh external injury seen at the time of examination. There was healing wound right index finger and lateral side of right eye. PW15 further stated that the MLC Ex.PW14/A bears his signatures at point B and the note at point Y on the said MLC in his handwriting. It is evident from the testimony of PW14 and PW15 that on 12092012, the accused was brought with the alleged history of human bite four days back. It is pertinent to mention here that no matching of the teeth of the deceased and the size of human bite on the person of accused was conducted, therefore, it has not been proved on record that it was the bite of the deceased.
17. PW25 Sh. Amit Rawat, Senior Scientific Officer (Chemistry) FSL Rohini, Delhi proved his detailed report Ex. PW25/A. PW26 Sunita Gupta, Sr. Scientific Officer, Biology, FSL FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 17 of 26 Rohini stated that on analysis, blood was detected on Ex. 1, 2, 3, 7, 8, 10a, 10b, 10c, 12a, 12b, 13, 14a, 14b, 15, F1 to F10 and blood could not be detected on Ex. 4, 5a, 5b & 6. PW26 proved her biological report Ex. PW26/A. PW26 further stated that on serological examination, Ex.1, 2, 10b, 13, 14a, 14b, F1, F2, F4, F6, F8 & F10 was found to be human in origin and of A Group in ABO Grouping and proved her serological report Ex. PW26/B. Perusal of the aforesaid FSL reports reveal that blood was detected on Ex. 3 i.e. iron rod but there is no reaction in the column ABO grouping. Further, there is also no reaction of ABO grouping to Ex. 7, 8, 10a, 10c, 12a, 12b, 15, F3, F5, F9 and ABO grouping is inconclusive to Ex. F7. Further, blood could not be detected on exhibits 4, 5a, 5b and 6. No blood grouping was conducted on the said iron rod. In this regard, a reliance can be had upon the judgement reported in the case of State Vs. Naresh & Anr., 2012 [2] JCC 830, it was held by the Hon'ble High Court of Delhi that as per FSL report, no blood group was conducted on the knife. Mere recovery of knife and cricket bat was not enough to interfere that these weapons were used for committing the crime.
18. PW24 Sh. Amar Nath Singh, Nodal Officer, Idea Cellular Ltd., A68, Sec64, Noida, UP brought Customer Application FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 18 of 26 form pertaining to mobile no. 8743866487 which was in the name of Amandeep s/o Sh. Jagjit Singh. PW24 was questioned as to whether the mobile sim no. 8743866487 was used on IMEI no. 911121500482520 and 911121500482536 as per the record? PW24 replied that as per the record, the abovesaid sim was used on IMEI no. 911121500482520 in the abovementioned period i.e. 01072012 to 09092012. PW24 was again questioned as to whether he can bring to the court the CDR from the date 09092012 to 12092012 to which he replied that CDR beyond one year period was not available and therefore, he was not able to bring the record of that period.
19. Let us also examine whether arrest, personal search & disclosure statements of the accused, site plan, recovery & seizure of iron rod & articles have been conducted by the prosecution as per procedure. PW19 SI Shailender Kumar in his crossexamination could not tell as to whether the items stated by him were taken into police possession in the presence of complainant Amar Nath Singh. PW19 admitted that seizure memos do not bear the signatures of Amar Nath Singh. PW19 also admitted that his statement u/s 161 Cr.P.C. was not recorded as to the fact that seizure memo Ex. PW19/D was in his handwriting. PW19 also stated that IO kit might FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 19 of 26 have been lying in the Gypsy but he had not seen the same. PW19 admitted that he did not sign the sealed pullandas as a witness. PW19 stated that secret informer pointed towards the accused from a distance of about 5060 paces and he left the spot after pointing towards the accused but PW19 could not tell the exact time. PW23 stated that they were in the official Gypsy when secret informer pointed towards the accused from a distance of 5060 yards and they were in their uniform and secret informer remained there for about 20 minutes. PW19 also could not tell whether they offered their search to accused before his formal search. PW19 did not tell the exact time when they came back at the PS after arrest of the accused. PW20 HC Ranjan stated that sealing material was available in the IO kit which was lying in the Gypsy but he had not seen the same. PW23 Inspector Darshan Singh admitted that he did not prepare any taken over or handing over memo of the seal. PW23 also admitted that he had not got signed the site plan Ex. PW23/B by complainant Amar Nath Singh. PW23 further admitted that he did not offer his search to the accused before formal search of accused.
20. In the present case, there is no public witness to site plan Ex. PW23/B, seizure memos Ex. PW13/B, Ex. PW19/A to Ex. FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 20 of 26 PW19/F, PW20/A; arrest memo Ex. PW19/G, personal search memo Ex. PW19/H, disclosure statement Ex. PW19/I and pointing out memo Ex. PW19/J. In this context, I would place a reliance upon the judgements reported in the cases of Ajay @ Chotu Vs. The State, 2012 [2] JCC 1261, it was held by the Hon'ble High Court of Delhi that three conflicting versions undermine the prosecution's versions about arrest of the accused. Principle laid down by the Hon'ble Apex Court has been followed that the circumstances surrounding arrest of the accused and doubts emerging from the prosecution's case can be a ground for acquittal. In Nanak Chand Vs. State, 1991 Rajdhani Law Reporter 62, it was held by Hon'ble High Court that if recovery is in the absence of witnesses, who could be available then it casts doubt on prosecution. In Staila Sayyed Vs. State, 2008 [4] JCC 2840, the Hon'ble High Court held that there was nonjoining of public witness at the time of arrest of accused and recoveries. All the witnesses to recoveries were police officials. Such recoveries do not inspire confidence. In Dinesh Kumar Vs. State, 1998 [1] JCC [Delhi] 173, it was held by Hon'ble High Court that disclosure statement and recovery of knife not made in presence of independent witnesses. Only police constables are the witnesses. No explanation coming forth for not joining FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 21 of 26 independent witnesses. In Wakkar and another Vs. State of Uttar Pradesh (2011) 2 Supreme Court Cases 306, it was held by the Hon'ble Supreme Court that recovery of incriminating articles at the instance of accused by itself cannot form basis of conviction. Recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well as chain of events suggesting involvement of the accused. It was further held that duty of the court is that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstance so proved must form a chain of events from which the only irresistible conclusion about guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
21. In the present case, PW19 stated in his cross examination that Inspector Darshan Singh had asked the passersby to join investigation but none joined the investigation by telling their genuine reasons. PW19 could not tell whether any person from the nearby shops/ sheds was called to join the investigation or not. PW19 admitted that area of Nizamuddin Railway Station was thickly populated. PW19 could not tell if IO had asked any railway employee, coolee or vendor to join investigation of the present case FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 22 of 26 at the time of arrest of the accused. PW19 could not tell how many persons were gathered at the spot when they apprehended the accused. PW19 also stated that no public person was called before taking the formal search of the accused. PW20 HC Ranjan stated that IO had asked some public persons to join the investigation but none agreed. PW23 stated that he had asked shed owners to join the proceedings but they refused. PW23 admitted that he did not give any notice to them and no action was taken against them. PW23 also admitted that police post was a thickly populated area. PW23 did not call any public person from the nearby locality to join the raiding party. Even, PW23 did not call any railway employee, vendor or coolee or any other public person to join the proceedings. In State of Rajasthan Vs. Teja Singh 2001 (II) AD (SC) 125, the Hon'ble Supreme Court held that the failure of the prosecution to examine independent witnesses though available is fatal for their case. In the case titled State of Punjab Vs. Gurdyal Singh 1992 (1) RCR (DB) 646, Roop Chand Vs. State of Haryana 1989 (2) RCR 504 and State of Punjab Vs. Sukhdev Singh 1992 (3) RCR 311, it was held by the Hon'ble Court that where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 23 of 26 action was taken against them, the case is rendered doubtful.
22. It is well settled and one of the cardinal principles in criminal jurisprudence that the accused is presumed to be innocent until proved guilty by the prosecution. Another golden thread which runs through the veins of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be accepted. Reference in this connection can be made to the decision in Bhikari Vs. State of UP, AIR 1966 SC 1, therein the Hon'ble Supreme Court held that "undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by prosecution or by defence, a reasonable doubt is created in the mind of the court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to be acquitted". In, Tika Vs. State of UP, AIR 1974 SC 155, it was held that "one of the cardinal principles which has always to be kept in view, in our system of administration of justice for criminal cases, is FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 24 of 26 that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged". In Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab), it was held that "The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted". In Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, the Hon'ble Punjab & Haryana High Court held that in a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks 'credibility', benefits of doubt necessarily has to go to accused. In Vikramjit Singh @ Vicky Vs. State of Punjab, 2007 (1) CC Cases (SC) 35, it was held by the Hon'ble Supreme Court FIR No. 243/12; State Vs. Kalyan Singh @ Kalla Page 25 of 26 that where two views of a story appeared to be probable, the one that was contended by the accused should be accepted.
23. In view of the above discussions, I am of the considered opinion that the prosecution has not been able to prove its case against the accused Kalyan Singh @ Kalla beyond reasonable doubt. Accordingly, accused Kalyan Singh @ Kalla is acquitted. He be released forthwith if not required in any other criminal case. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 24122014.
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