Delhi District Court
State vs . Hariom @ Bhulla @ Gulla on 17 April, 2023
IN THE COURT OF SH. SACHIN SANGWAN,
ADDITIONAL SESSIONS JUDGE (FTC-01), SOUTH-EAST DISTRICT,
SAKET COURT, NEW DELHI.
STATE VS. HARIOM @ BHULLA @ GULLA
SC No.2490/2016
FIR No. 102/2000
P.S.: Badarpur
U/S 302/120B IPC
Particulars of the case:
a) Date of offence : 15-16.03.2000 (120B/302 IPC) & 05.09.2000
(174-A IPC)
b) Offence complained of : U/s 120B IPC, 302 r/w section 120B IPC
& section 174-A IPC
c) Name of complainant : Ms. Geeta
d) Name of accused : Hari Om @ Bhulla @ Gulla
his parentage s/o Late Sh. Hori Lal,
local & permanent residence R/o: Village Balipur, PS Nangla
Khangar, Tehsil Shikohabad District
Firozabad, UP
e) Plea of accused : Pleaded not guilty
f) Final order : Acquitted of all charges
Date of institution of case : 16.02.2016
Date on which case reserved
for judgment : 18.03.2023
Date of judgment : 17.04.2023
JUDGMENT
1. CHARGESHEET 1.1 Three chargesheets have been filed in the present case. As per the first chargesheet, on 16.03.2000 on receipt of DD No.4A Inspector Puran Chand reached SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 1/16 FIR No. 102/2000 at the spot i.e. J-81, Saurabh Vihar, New Delhi where he found one person in a dead condition on the roof of said house. Said person was aged about 45-46 years and there was injury mark on the left eye of said person. Two empty bottles of liquor and two empty glasses were also lying near the dead body. On the spot, IO recorded the statement of one Geeta.
1.2 Said lady stated that she lives at the above mentioned address along with her family as a tenant. Her husband works in a factory at Okhla and on 13.03.2000 her husband had gone to Patna due to factory's work. One person namely Umesh also used to reside as tenant in the said house. Umesh s/o Balbir and her husband belonged to the same village of Balipur, Tehsil Shikohabad, District Firozabad, U.P. and said Umesh also used to work in some factory in Okhla. On 14.03.2000 two persons came to the house of Umesh and they ate-drank and even stayed with him. At the night time of next day i.e. on 15.03.2000 she saw all three of them had consumed liquor and they all were vomiting outside their room. She slept along with her children and she did not know as to what happened thereafter. But when she got up on the next day i.e. on 16.03.200 at 07.00 am she found the room of Umesh locked, so she thought that they might be sleeping on the roof. She went to roof and found that one of the person who had come to the house of Umesh was lying dead there. The said person was having some injury mark above his left eye. She told the same to the landlord who informed the police.
1.3 On the basis of said statement of Ms. Geeta, the present case FIR was got registered by the IO who also inspected the spot and prepared the site plan. Meanwhile, crime team was also called at the spot. The crime team inspected the spot and took the photographs. During investigation, IO came to know the name of dead person as Balram s/o Banwari Lal resident of 415 E, Railway India Opting Colony, Gosain Nagar, Kanpur (UP) and that he was working in Indian Railways. During investigation, IO also came to know that on 15.03.2000 there was one more person by the name of Hari Om, who also drank along with Umesh and the dead person. IO got SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 2/16 FIR No. 102/2000 conducted the post mortem of the dead body and thereafter handed over the same to its legal heirs. During post mortem, doctor preserved the viscera of the deceased and kept opinion about the cause of death pending till the report of CFSL for viscera analysis regarding poisoning was made available. IO also interrogated the deceased's wife namely Smt. Anjana Devi, who confessed her guilt and stated that she was fed up of her husband Balram and, hence, she asked Hari Om to kill her husband and thereupon Hari Om killed her husband by putting poison in his liquor. IO arrested Smt. Anjana Devi and sent her to judicial custody. IO tried to search the accused Hari Om and got NBWs issued against him but he could not be traced. Viscera was sent to Kolkata for chemical analysis but the result of the same was not received till the filing of first chargesheet. After completion of investigation, first chargesheet was filed against accused Anjana Devi. After filing of chargesheet, the proceedings u/s 82/83 CrPC were executed against accused Hari Om and he was declared proclaimed offender by Ld. MM and thereafter matter was committed to Sessions Court for trial. 1.4 Subsequently, on 06.02.2001 supplementary chrgesheeet was filed along with report of the FSL, Malviya Nagar and as per the same, ethyl alcohol was detected in viscera of the deceased. The trial against the accused Anjana Devi commenced in the year 2001 by framing charges u/s 120B and 302 r/w 120B IPC. The trial concluded in the year 2004 wherein she was acquitted vide judgment dated 24.09.2004. 1.5 After more than 15 years of the offence, on 21.10.2015 IO SI Rajesh Kumar received information regarding apprehension and arrest of accused Hari Om @ Gulla @ Ramakant vide kalendra u/s 41.1 CrPC. He obtained the copy of kalendra and tried to locate the police file but same could not be traced. On 04.11.2015 on Court's directions IO SI Rajesh obtained the photocopy of the main chargesheet. Accused Hari Om was interrogated and arrested after completing all formalities. His disclosure statement was recorded wherein he stated that he do not remember the house now so his police custody was not obtained for preparing pointing out memo. Thereafter, IO SI Rajesh Singh searched for the witnesses i.e. the complainant Geeta Devi, Ram SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 3/16 FIR No. 102/2000 Babu, Umesh Chand Yadav, Jaisingh, Vinod Kumar Mishra, Shri Krishan Gopal, who all repeated their previously given statements and during interrogation, IO also came to know that witness Baikunti Devi w/o Sh. Ram Babu and Smt. Shobha Mishra w/o Sh.Vinod Kumar had expired. Further, he moved an application for conducting TIP of the accused Hari Om but the accused refused to participate in the same. On the basis of the investigation, statement of witnesses, kalendra u/s 41.1 CrPC and disclosure statement of accused, IO prepared the second supplementary chargesheet and filed the same u/s 302/174A IPC.
2. CHARGE 2.1 On 09.03.2016 charge u/s 120B IPC and u/s 302 read with section 120B IPC was framed against the accused to which he pleaded not guilty and claimed trial. Subsequently, on 15.09.2022 additional charge u/s 174A IPC was also framed against him to which also he pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheets.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 15 witnesses during the trial of accused Hari Om. Some of the witnesses cited in the first chargesheet had passed away. However, they had been examined during the trial of co-accused Anjana Devi, when the accused Hari Om was PO. Hence, prosecution has relied on their testimony also u/s 299 CrPC. Said witnesses are Ms. Baikuntha Devi, Ms. Shobha Mishra, Sh. Krishan Gopal, SI Madan Pal and ASI Rajeshwar Rao. However, none of them have deposed anything specifically incriminating against the accused Hari Om. 3.2 The witnesses examined during trial of the accused Hari Om are as follows:-
S. No. Name of the witnesses Nature of the evidence
PW-1 Smt. Geeta Complainant of the case
PW-2 Umesh Chand Yadav Eye witness/circumstantial witness
PW-3 Ram Babu Landlord of the house where the
dead body of deceased was found
lying
PW-4 Jai Singh Acquaintance of Umesh
PW-5 WHC Poonam Duty Officer who prove the DD
SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 4/16
FIR No. 102/2000
No.6A
PW-6 HC Sanjeev Kumar Arrest witness qua accused Hari
Om, also proved DD No.5B and
kalendra
PW-7 Vinod Kumar Mishra Friend of accused Hari Om @
Gulla @ Pappu @ Ramkant
PW-8 Balbir Singh Son of the deceased Balram, who
identified his dead body
PW-9 Yogender Singh Court Official,who proved the TIP
proceedings of accused Hari Om
PW-10 HC Yogender Singh Photographer of Crime Team
PW-11 Dr. Sanjeev Lalwani Doctor who conducted autopsy
PW-12 Inspector K.P. Malik Police official who filed Ist
supplementary chargesheet
regarding FSL result
PW-13 HC Rajesh Kumar Police witness regarding
circumstances at the crime scene
and initiation of investigation
PW-14 Retired Inspector Puran IO of the main/first chargesheet
Singh
PW-15 Inspector Rajesh Kumar IO of the 2nd supplementary
chargesheet
3.3 The prosecution has exhibited following documents/objects in support of its
case:-
No.of exhibit Nature of exhibit
Ex.PW1/A Statement of Smt. Geeta
Ex.PW5/A DD No.6A regarding receiving of call on 21.10.2015
at 2.30 pm at PS Badarpur
Ex.PW6/A & Arrest and personal search memo of accused Hari Ex.PW6/B Om by Crime Branch Officials Ex.PW6/C DD No.5B dated 21.10.2015 recorded at PS R. K. Puram, New Delhi regarding arrest of accused Ex.PW6/D Kalendra regarding apprehension of accused as PO Ex.PW8/A Dead body identification statement Ex.PW9/A TIP proceedings Ex.PX1 to PX4 Photographs of roof of the house where dead body was found Ex.PX5 to PX8 Negatives of photographs Ex.PW13/A Site Plan SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 5/16 FIR No. 102/2000 Ex.PW14/A DD No.4A received at PS Badarpur regarding a dead body lying on the terrace of J Block, Jaitpur Road Ex.PW14/B Rukka Ex.PW14/C Seizure memo of two glasses Ex.PW14/D Site Plan Ex.PW14/E Application for conducting post mortem Ex.PW14/F Application for preserving the dead body of an unknown person Ex.PW14/G, Statements of Krishan Gopal, Balbir Singh and Ex.PW14/H Anjana Devi regarding identification of dead body and Ex.PW14/I Ex.PW14/J and Handing over memos of dead body of deceased to Ex.PW14/K Balbir Singh and Krishan Gopal Ex.PW14/K1 Seizure memo of viscera, cloth of deceased and blood in gauze of deceased Ex.PW14/L Arrest memo of accused Anjana Devi Ex.PW14/M Personal search memo of accused Anjana Devi Ex.PW14/N Disclosure statement of accused Anjana Devi Ex.P1 to Ex.P4 Photographs of the spot Ex.P1 (colly) Two broken glasses and Ex.P2 (colly) Ex.PW15/A Seizure memo of empty bottles and glasses Ex.P1/1-2 Two empty bottles Ex.P2/1-2 Two glasses Ex.PW16/A Post mortem report of deceased Balram Ex.PW16/B Subsequent opinion of doctor on post mortem of deceased Ex.PW15/A IO/SI Rajesh Kumar's application for interrogation and arrest of accused Hari Om Ex.PW15/B Arrest memo of accused Hari Om Ex.PW15/C Personal search memo of accused Hari Om Ex.PW15/D Disclosure statement of accused Hari Om Ex.PW15/E Application for TIP of accused Hari Om 3.4 Though prosecution has examined 15 witnesses but the main witnesses of the case are:
i. PW2- Umesh Chand Yadav, eye witness/circumstantial witness and ii PW11- Dr. Sanjeev Lalwani, Autopsy Surgeon.
SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 6/16 FIR No. 102/2000 3.5 PW2 Umesh Chand Yadav deposed that in the year 2000 around 4-6 days prior to holi festival at around 10.00 am he was present at his rented premises at Saurabh Vihar, Badarpur. On that day while returning from office at about 07.00 pm, he had seen accused Hari Om consuming alcohol with some other person. After some time, Jai Singh also came there and Hari Singh asked him to have liquor but he denied their offer and told them that he had already taken some liquor and was not interested in having any more. After some time i.e. 15-20 minutes Jaisingh left. Afterwards, Hari Om asked PW2 to bring some snacks (namkeen). However, PW2 had no money with him hence he went to the shop of Ram Babu and kept sitting there. After 1½ -2 hours when he returned, he saw Balram lying on a cot and he was breathing abruptly. When PW2 asked about his condition, Hari Om told him that it was due to excessive consumption of neat liquor and within some time Balram will be alright. PW2 offered to take him to hospital but Hari Om declined the same and took Balram on the roof so that he could have some fresh air. Balram was laid on the floor of the roof and one glass and water bottle were kept on his side. After some time, when Balram was checked, there was no movement in his body and PW2 told this thing to Hari Om but he threatened him and asked him to keep his mouth shut. PW2 decided to move out from his house and accused Hari Om also followed him. They reached at the house of one acquaintance at Madanpur Khadar where they spent the night. In the morning, Hari Om told him to come along with him to Kanpur. They went to Ghaziabad by bus and on the pretext of answering call of nature by the side of a truck, he escaped from there and returned to Delhi. After reaching Delhi, he went to police station and told them about the incident. Police made inquiries from him and thereafter let him go.
PW2 identified the accused Hari Om in the court.
He was duly cross examined by Ld. Defence Counsel for the accused. 3.6 PW11 Dr. Sanjeev Lalwani, Professor AIIMS, New Delhi deposed that on 22.03.2000 he was working as Junior Resident in Department of Forensic Medicine and on that day, he conducted post mortem examination on the body of deceased SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 7/16 FIR No. 102/2000 Balram Singh 45 years male, who was brought dead with alleged history of found dead on the roof of house no. J-81, Saurav Vihar, New Delhi. On examination, it was found that rigor mortis passed off, nails and lips were cyanosed, post mortem staining was seen on back and dependent parts except pressure areas. Eyes and mouth were partially open. Bleeding from mouth and nostrils present. There was sign of decomposition as greenish discolouration of abdomen and both upper limbs showed marbeling of skin. Both hands were stained with sand. Ante mortem injuries:-
1. Abrasion 1 X 1 cm two in number on left side lower back with clotted blood.
2. Abrasion on left side forehead with brown scab 6 cm in size.
3. Eyes shows sub conjunctival hemorrhage was present in both the eyes more prominent on right side.
4. There was diffuse swelling over right cheek on cut section underlying extravasation of blood without bone injuries.
5. Bruising on inner side of cheek on right side and in both upper and lower gums with extravasation of blood. There was sub scalp petechial hemorrhage. Brain shows sub dural haematoma in occipital region. Both lungs were congested and oedamatous. Mucosa of the stomach was congested. Liver shows fatty changes.
Clothes and viscera were preserved, sealed and handed over to the IO. The time since death was about six and a half days. The opinion was kept pending till report of CFSL for visceral analysis made available. Post mortem report is Ex.PW16/A. Considering the FSL report No.2000/C-1257 dated 29.12.2000 and finding mentioned therein, PW11 was of the considered opinion that cause of death is ante mortem smothering. His subsequent opinion dated 14.09.2001 is Ex.PW16/B. He was duly cross examined by Ld. Counsel for the accused.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, accused Hari Om @ Bhulla @ Gulla was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. He stated that he is innocent and had been falsely implicated in the SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 8/16 FIR No. 102/2000 present case. He further stated that Umesh had deposed falsely against him as his father Dalbir had a case against him at Tehsil Shikohabad regarding a land dispute prior to the incident in question. Later on, said case was won by them around two years back. He did not know the deceased Balram as he never met him. He claimed that he had not gone to the room of Umesh.
5. DEFENCE EVIDENCE 5.1 Accused chose not to lead any defence evidence and matter was listed for final arguments.
ARGUMENTS 6.1 Thereafter, arguments of the prosecution and Ld. Counsel for the accused were heard. Ld. Addl. PP for the State has submitted that prosecution has successfully proved its case against the accused which is supported by the detailed account of eye witness Umesh and is supported by the medical evidence of the post mortem report. Even the conduct of accused fleeing the trial for more than fifteen years shows his guilty intention. On the other hand, Ld. Counsel for accused has submitted that neither there is any forensic evidence to show the presence of accused at the spot nor there is any witness to support the account of the alleged eye witness in any manner. Even the testimony of the alleged eye witness is not credible and there are serious contradictions in his statement given during the trial against the accused Anjana (since acquitted) and during the trial of present accused. He has argued that even the medical evidence is not conclusive and there is strong probability that the death of deceased may be accidental due to excessive drinking.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record. 7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 302 IPC provides for the punishment of offence of murder and the said offence is defined in section 300 IPC as follows "except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 9/16 FIR No. 102/2000 Secondly, - If it is done with the intention of causing bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly, - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly, - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Section 299 IPC defines culpable homicide as follows"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence culpable homicide"
Section 120B IPC provides "Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
Section 174A IPC provides "Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for term which may extend to seven years and shall also be liable to fine. "
7.3 From the arguments of the parties and the relevant provisions of law following points for determination arise:-
1. Whether the death of deceased was accidental or intentional?;
2. Whether the accused was present at the scene of crime at the relevant time?;
3. Whether the accused had committed the murder of deceased?;
4. Whether the accused was part of any conspiracy to commit the murder of deceased? and
5. Whether the accused is liable for the offence u/s 174A IPC? 7.4 Now, we shall proceed to appreciate the evidence so as to decide the said points for determination.
SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 10/16 FIR No. 102/2000
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The Counsel for accused has vehemently argued that there is no definite medical evidence to prove that the deceased Balram died homicidal death and rather his death appears to be accidental one. He has argued that admittedly there is no forensic evidence that he was poisoned. Further, though PW11 Dr. Sanjeev Lalwani has deposed that in his opinion the cause of death was ante mortem smothering, however, PW11 has admitted in his cross examination that there was no external injury on the neck region on the body of deceased. Ld. Counsel has argued that alcohol was found in the viscera of the deceased indicating that he was under
intoxication. Further, during his cross examination, PW11 has deposed that smothering during the stage of excessive intoxication with alcohol is possible. Accordingly, as per Ld. Defence Counsel, the present case is a one where the deceased died due to excessive drinking and the case is not even of murder.
I have considered the said argument. Firstly, during his cross examination, PW11 Dr. Sanjeev Lalwani has clarified that it is not necessary to find injury on the neck to justify the cause of death as smothering. Secondly, in regard to smothering due to heavy consumption of alcohol he has clarified in his cross examination that it is highly unlikely that in this case this situation has arisen. Thirdly, the condition of the body and the injuries on the body of deceased strongly corroborate the opinion of PW11 that it was a case of ante mortem smothering. There was bleeding from the mouth and nostrils. Further, the eyes of deceased showed sub conjuctival hemorrhage in both eyes. There was diffused swelling over right cheek on cut section showing underlying extravasation of blood without bone injuries. Moreover, there was bruising on inner side of cheek on right side and in both upper and lower gums with extravasation of blood. There was sub scalp petechial hemorrhage and brain showed sub dural haematoma in occipital region. Thus, the overall injuries and the state of the body does not give rise to even a probable conclusion that deceased was himself smothered due to heavy intoxication. Accordingly, Court is of the considered view SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 11/16 FIR No. 102/2000 that death of the deceased was intentional and not accidental. Now we shall proceed further to decide the remaining points of determination.
8.2 As per the case of prosecution, the deceased Balram was resident of Kanpur and the accused Hari Om brought him to Delhi from Kanpur in furtherance of conspiracy with the wife of the deceased to commit his murder. However, late Ms. Shobha Mishra who was cited as witness by the prosecution to prove the fact that both of them departed together from Kanpur for Delhi but it was only accused Hari Om who returned alone to Kanpur, had turned hostile to the case of prosecution during the trial of Anjana Devi itself. Therein, she totally denied about the alleged joint departure of the accused and deceased from Kanpur to Delhi and the return of accused Hari Om alone. Though PW7 Vinod Kumar Mishra had deposed about the joint departure of the accused with the deceased from Kanpur to Delhi but he has deposed it as a hearsay fact which he came to know from his wife Ms. Shobha Mishra and same is irrelevant under the provisions of Indian Evidence Act, 1872. 8.3 As far as the presence of accused at the spot on the date/time of offence is concerned, PW1 Geeta who was the complainant has not identified the accused as the person who had visited the house of the eye witness Umesh. Further, as pointed out by Ld. Defence Counsel there is no other physical/forensic evidence i.e. any chance print on the bottles/glasses found at the spot or any blood etc. at the spot which was found matching with accused, so as to show the presence of accused at the scene of crime at the relevant time. Further, no recovery of any article of deceased or other incriminating material has been effected from the accused linking him to the place of occurrence/deceased. The only evidence linking the accused to the place of occurrence and the alleged offence is the testimony of PW2 Umesh Chand. Let us proceed further to scrutinize the testimony of PW2 as to whether same is credible enough.
8.4 Though there has not been any substantial cross examination of PW2, however, he has been examined twice for the same incident (during the trial of Ms. Anjana SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 12/16 FIR No. 102/2000 Devi and the present trial) and there are certain stark contradictions between his two statements. Moreover, his statement fails to get any support from the other witnesses named by him to be present either earlier or during or after the incident. Said contradictions and lack of corroboration is discussed in detail in succeeding paras.
PW2 has deposed that while deceased and accused were consuming alcohol one Jaisingh also came and accused offered him liquor but he refused. However, on the contrary, in his earlier statement recorded during trial of Anjana Devi, he deposed that when his neighbourer Jaisingh came, he also consumed liquor with them. Most importantly, PW4 Jaisingh has denied going to room of PW2-Umesh, much less the presence of accused, their taking liquor at the room of Umesh and he himself joining them. He has rather deposed that he do not know anything about the case. Even in his cross examination by Ld. Addl. PP, he has denied to be witness to any of the circumstances stated by Umesh.
Secondly, PW2 has deposed that accused Hari Om asked him to bring some snacks (namkeen) but since PW2 had no money with him, hence, he went to shop of Ram Babu and kept sitting there. However, in his earlier statement he has deposed that when he went to the market for getting namkeen, the market was closed so he could not bring namkeen and came back to the room. Both of said assertions are apparently contradictory. More so, in his testimony, he has deposed that he kept sitting at the shop of Ram Babu and returned after 1½-2 hours. However, no such fact has been deposed by him in his earlier statement.
Thirdly, PW2 has deposed that when he returned to his room and found Balram breathing abruptly, he asked the accused about it and the accused stated that same has happened due to excessive consumption of liquor by Balram. However, interestingly, in his previous statement, he has deposed that when he inquired from the accused about the rapid breathing of Balram, the accused told him that he has given poison to Balram. Said fact is a major contradiction and cannot be ignored at all. More so, SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 13/16 FIR No. 102/2000 there is no medical/forensic evidence that any poison was found in the viscera of deceased.
Fourthly, PW2 has deposed that accused had taken Balram to the roof so that he could have some fresh air and after some time when he was checked, there was no movement in his body. Therefore, he has implied that when Balram was shifted from the room to the roof he was alive and he died on the roof. However, in his earlier statement, he has deposed that Balram was breathing continuously and after some time, he could not breathe. He has specifically deposed that on asking of accused he along with accused took the dead body of Balram to the roof. Therefore, he has clearly stated that Balram had died even before being shifted to the roof.
Fifthly, in his earlier statement PW2 Umesh had deposed that accused Hari Om conducted search on the dead body and removed one Railway Pass, I-Card, Wrist Watch from the body and kept these articles with him in his bag. However, surprisingly no such facts have been deposed by PW2 during the present trial.
Sixthly, PW2 has deposed that accused threatened him to keep his mouth shut and PW2 decided to move out from the house and accused Hari Om also followed him and they reached the house of one acquaintance at Madanpur Khadar. On the other hand, in his previous statement, he has deposed that accused threatened him and asked him to do as he says and the accused took him with him under threat and from his room, accused Hari Om took him to the house of Arvind, the son of maternal uncle of PW2's landlord Ram Babu. Therefore, there is an apparent contradiction as to whether PW2 moved out of his premises of his own accord or was taken by the accused under duress.
Seventhly, it is also to be noted that in his previous statement PW2 has deposed that accused Hari Om disclosed to him that he had received the payment for the murder of Balram, however, no such fact have been deposed by him during his testimony against the accused Hari Om. The addition/omission of such a material fact further discredits the alleged eye witness.
SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 14/16 FIR No. 102/2000 Eightly, PW2 has claimed in his earlier statement that initially they had gone to the house of Arvind in Madanpur Khadar and then to the house of one Kamla at Ghaziabad. However, in his testimony against accused Hari Om, he has not referred going/staying at the house of said Kamla at Ghaziabad and has merely deposed that they went to Ghaziabad by bus and then on the pretext of answering call of nature by the side of truck, he escaped from there. Most importantly, neither said Arvind nor such Kamla have been cited by the prosecution as a witness to corroborate the presence of accused with the witness soon after the incident or to corroborate that the witness was apparently under any kind of duress during such stay or had no chance to escape from the accused at the places of said persons.
Thus, all of the aforesaid contradictions seriously impeach the credit of the alleged eye witness.
8.5 Even the claim of prosecution that PW2 Umesh joined the investigation as an eye witness after two days of the incident is doubtful. PW2 has deposed that he and accused spent the night in question with one acquaintance and next day they went to Ghaziabad, from where witness returned to Delhi and joined investigation. Since the incident occurred in the intervening night of 15-16.03.2000, therefore, PW2 would have joined the investigation on 17.03.2000. Even the 161 CrPC statement of said witness is dated 17.03.2000. However, same does not appear possible as an application (which is part of first chargesheet) was moved by the SHO on 19.03.2000 to the Incharge Mortuary, AIIMS hospital for keeping the unidentified dead body preserved for another two days so that it can be identified. Since PW2 Umesh was knowing the identity of the deceased and his statement was allegedly recorded on 17.03.2000, the SHO would have known the identity of deceased by 19.03.2000 and there would not have been any requirement to mention that the body was unidentified even on 19.03.2000. Moreover, the dead body identification documents were prepared and the post-mortem proceedings were conducted on 22.03.2000 when the family of the deceased arrived in the hospital in Delhi. Though the family of SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 15/16 FIR No. 102/2000 deceased was from Kanpur but if statement of PW2 Umesh was recorded on 17.03.2000 and the identity of deceased was revealed, his family could have been contacted on 17th or 18th March, 2000 and his family would have arrived in Delhi by 19th or 20th March, 2000. The news of death of a family member is so urgent and alarming that no family would wait for 4-5 days to come forward for claiming the dead body. All these facts collectively create further doubts that PW2-Umesh did not join the investigation even after one or two day of the incident but much later on. Said circumstances also indicate that IO has not mentioned the correct facts of investigation in the chargesheet/documents. Except the testimony of PW2, there is nothing else to prove the role of accused in death of deceased or even presence of accused at the scene of crime. However, considering the contradictions in his two statements and his conduct, the Court has serious reservations regarding the credibility of his testimony.
8.6 As far as the offence of conspiracy is concerned, the other alleged conspirator Anjana Devi has already been acquitted and a single person cannot be held liable for conspiracy. Even otherwise, there is no evidence regarding criminal conspiracy against the accused Hari Om.
8.7 As far as offence u/s 174A IPC is concerned, it was brought on statute book i.e. Indian Penal Code, 1860 in the year 2006 whereas accused was declared PO in the year 2000. However, penal law cannot be applied ex post facto. Hence, accused cannot be convicted for an offence which was not there on the date of his alleged act/illegal omission.
9. CONCLUSION 9.1 Accordingly, in view of aforesaid discussion, accused Hari Om @ Bhulla @ Gulla is acquitted of the offences u/s 120B IPC and u/s 302 read with section 120B IPC as well as u/s 174A IPC charged against him. SACHIN Digitally signed by SACHIN SANGWAN SANGWAN Date: 2023.04.16 15:31:57 +0530 (Announced in the Open (Sachin Sangwan) court on 17th April, 2023) Additional Sessions Judge (FTC-01) SE: District Court Saket: New Delhi SC No. 2490/2016 State v. Hari Om @ Bhulla @ Gulla Pages 16/16 FIR No. 102/2000