Delhi District Court
Sc No. 1191/16, Fir No. 205/15, Ps Lodhi ... vs . Rajesh Pal & Anr. 1 Of 39 on 8 April, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL,
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
SC No. 1191 of 2016
CNR NO. DLSE01-000137-2015
State
Vs.
1. Rajesh Pal
S/o Sh. Byas Hari Pal
R/o Vegabond, Footpath,
Sai Baba Mandir,
Lodhi Colony, New Delhi.
2. Danish S/o Sh. Febus
R/o Vegabond, Footpath,
Sai Baba Mandir,
Lodhi Colony, New Delhi.
FIR No. 205/2015
PS: Lodhi Colony
U/s: 302/201/34 IPC
Instituted on : 07.09.2015
Committed on : 24.09.2015
Reserved on : Not reserved
Decided on : 08.04.2022
JUDGMENT
1. On 26.05.2015, a telephonic information was received at Police Station Lodhi Colony from PCR regarding one dead body having been buried under the Lodhi Road Over Bridge, Barapullah Road, Nehru Stadium Main Gate No.6 and a foul smell coming out of the same. The information was recorded vide DD no. 36B and assigned to SI Devi Dayal SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 1 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:25:33 +0530 Meena. On the same day, SI Devi Dayal Meena alongwith Ct. Ramesh Chand reached at the spot and found two male dead bodies in highly decomposed condition. The said information was given to SHO PS Lodhi Colony, who reached at the spot alongwith other staff members.
1A. One of the deceased, aged about 28 years, was having a tattoo of 'Lord Hanuman' on his arm and some biscuits, one syringe (meant for taking drugs) were found in his clothes. The said biscuits and syringe were seized vide seizure memo Ex. PW-11/A. The other deceased, aged about 30 years, was found in possession of some biscuits, inhaler and one match box. The said biscuits and inhaler were seized vide seizure memo Ex. PW- 11/B. 1B. The blood in gauze was lifted from the spot from two places and were sealed in two pullandas with the seal of DDM and seized vide memo Ex. PW-11/D. The earth control with blood was also taken and sealed with seal of DDM and seized vide memo Ex. PW-11/E. One pair of sports shoe, found at the spot, were seized vide memo Ex. PW-11/F. Both the dead bodies were shifted to AIIMS Hospital. The MLCs of both the deceased Ex. PW11/G and Ex. PW-11/H were collected and the dead bodies were got preserved in mortuary for 72 hours to ascertain their identity.
1C. During investigation, both the accused persons were arrested from patri, Sai Baba Road, Lodhi Colony, New Delhi, who disclosed that they had murdered Vishnu Bahadur Thapa and Sunny @ Vikas on 24.05.2015. They also disclosed that accused Danish had pressed their SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 2 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:41:46 +0530 mouth and accused Rajesh Pal had stabbed them with a knife and thereafter, thrown the said knife in nala near Sewa Nagar.
1D. Thereafter, accused Rajesh Pal got recovered one plastic green and blue colour pouch containing knife which was used in the alleged crime. Said plastic pouch was sealed with seal of KS and same was seized by the police. Police brought the accused persons to police station and took into possession their wearing pants. On 10.06.2015, accused persons were produced before Ld. Magistrate and were sent to JC. On 30.06.2015, witness Rahul Prakash @ Pintu was produced before Ld. MM and his statement under section 164 CrPC was recorded. On 22.04.2015, exhibits of the case were sent to FSL for examination/subsequent opinion. After conclusion of investigation, the chargesheet in the instant case was filed against both the accused for offences u/s 302/201/34 IPC.
CHARGE
2. On completion of necessary formalities, matter was committed to the Court of Sessions. To a charge under section 302/34 IPC and 201 IPC, framed on 13.01.2016, the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
3. In order to prove its case, prosecution examined 21 witnesses of which PW4 Rahul Prakash @ Pintu, PW10 Ram Bahadur @ Zakir and PW12 Sh. Chandra Shekhar are the witnesses of last seen i.e. the witnesses who had lastly seen the accused persons with the deceased prior to latter's death. PW9 Subodh Kumar Thakur (caretaker in NGO SPYM), PW14 Sh.
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ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.04.05
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Alok Sharma (informant to the PCR about lying of dead bodies at the spot) and PW16 Sh. Chanderpal (witness to the recovery of knife) are the other public witnesses examined in the instant case by the prosecution.
3A. PW15 Dr. B.K. Mohapatra (Senior Scientific Officer, FSL), PW19 Dr. Kanak Lata Verma, Assistant Director (Chemistry, FSL), PW20 Ms. Pooja Shrotriya (Senior Scientific Officer, Biology, FSL) are the expert witnesses who conducted scientific investigation.
3B. PW17 Dr. Umar Maqboor identified the signatures of Dr. Pratap Avvru on the MLCs of deceased. It would be relevant to mention here that postmortem reports of both the deceased were admitted by accused vide their separate statement in terms of section 294 CrPC.
3C. The remaining prosecution witnesses are the police officials who were part of investigation in the instant case.
STATEMENT OF ACCUSED U/S 313 CrPC:
4. Examined under section 313 of CrPC, the accused either pleaded ignorance about the incriminating evidence or denied the same as incorrect. They claimed to be falsely implicated.
ARGUMENTS OF Ld. ADDITIONAL PUBLIC PROSECUTOR FOR THE STATE:
5. This is a case of circumstantial evidence. Ld. Addl. PP submitted that prosecution has successfully established the chain of circumstances sans any break; that the chain of circumstances is consistent with the guilt of the accused and wholly inconsistent with the hypothesis of SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 4 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:42:01 +0530 his innocence. Ld. Addl. PP went on to argue that accused committed the murder of the deceased; that testimonies of all the prosecution witnesses were consistent and there were no contradictions therein; that as per PW4, PW10 and PW12, the victims were lastly seen in the company of accused and soon thereafter they were found dead.
5A. He further argued that prosecution successfully established the 'motive to commit murder' by proving through PW4, PW10 and PW12 that a fight had taken place between deceased and accused prior to the death of victims who were murdered by accused; that besides the oral testimonies, the medical and scientific evidence complete the chain of circumstances against the accused. As per him, prosecution successfully proved the following chain of circumstances:-
(i) the victims were lastly seen in the company of both the accused on 24.05.2015 and soon thereafter i.e. 26.05.2015 they were found dead;
(ii) that accused had motive to murder the deceasd as they had fought with latter on 24.05.2015 on some money dispute;
(iii) the weapon of offence was recovered at the instance of accused Rajesh Pal and human blood was detected upon the same;
(iv) all the injuries on the body of deceased were 'antemortem' in nature and occurred due to stab injuries caused by a sharp edged weapon;
(v) though exact time of death could not be ascertained as the dead bodies were highly decomposed however, as per the post-mortem, the time of death correspondence with the period when the victims were seen in the company of accused.
(vi) as per subsequent opinion Ex.A3, the antemortem external injuries on the dead bodies of the deceased could be caused by recovered knife i.e. weapon of offence and cut SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 5 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:42:08 +0530 marks on the wearing shirt of both the deceased may be possible by the recovered knife.
ARGUMENTS OF Ld. DEFENCE COUNSEL:
6. Ld. Amicus Curiae contended that the testimony of last seen witnesses are not reliable. He argued that prosecution has not been able to prove the circumstances, on which it relies, against any of the accused conclusively and therefore, the accused deserve benefit of doubt. He argued that neither the oral deposition nor the testimony of expert witnesses are sufficient in the instant case to prove the circumstances and to complete the chain thereof so as to return a finding of guilt against the accused persons.
7. I have heard rival contentions and perused the record. For appreciating the rival contentions, it would be apt to analyze the evidence brought on record in detail to adjudicate, if the prosecution has been able to prove its case beyond all reasonable doubts or whether accused deserves to be acquitted in the present case?
EVIDENCE ON RECORD:
8. PW1 HC Dharmender Singh is a formal witness. He, being the duty officer, had registered the FIR Ex. PW-1/A and made his endorsement on rukka at point X.
9. PW2 Ct. Praveen Kumar is another formal witness. His evidence is to the effect that he collected copies of FIR from the Duty Officer and delivered the same to senior police officers and the learned Metropolitan Magistrate.
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10. PW3 Inspector Mahesh Kumar deposed that on 24.08.2015, on the request of IO, he took measurement and prepared rough notes of the place of incident. Thereafter on 25.08.2015, he prepared a scaled site plan Ex. PW-3/A on the basis of rough notes and measurement bearing his signature at point A and rough notes were destroyed after preparation of site plan.
11. PW4 Sh. Rahul Prakash @ Pintu is a material witness who deposed that on 24.05.2015 at about 10.30 pm, he was coming from Kotla after taking medicine and reached near Nehru Stadium before Sai Mandir; that he saw Vishnu (victim) being held by accused Danish and former asked for his help; that Sunny (victim) was caught by accused Rajesh; that they were fighting on account of some previous money dispute and theft in godown; that he did not interfere and left from there; that after some days, he identified the photographs of victims Sunny and Vishnu which were shown to him by police officials; that he told to the police that he had seen victims Sunny and Vishnu being held by accused persons.
11A. He further deposed that on 09.06.2015 at about 7.30 pm, both the accused were apprehended by police from footpath near Dayal Singh College Red Light at his instance; that police arrested accused Rajesh and Danish vide arrest memos Ex. PW-4/A and Ex. PW-4/C and their personal search was conducted vide memos Ex. PW-4/B and Ex. PW- 4/D respectively; that after some days, he was brought to Saket Court and a lady judge made inquiries from him and recorded his statement under section 164 CrPC (Ex.PW-4/E), bearing his signature at point A regarding the incident. He identified the photographs of the victim Vishnu as Ex.
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AGRAWAL
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PW4/F and of victim Vikas @ Sunny as Ex. PW-4/G. He further deposed that he had seen both the deceased in the company of accused last time on 24.05.2015. He correctly identified both the accused persons in the witness box.
11B. During his cross examination, he admitted the suggestion of defence that the age of deceased Vishnu was around 17- 18 years and age of sunny was about 18-19 years as told by him to police. He further deposed that he had informed the officials of his night centre that accused had taken the deceased away; that he had told the police that accused were fighting with deceased over money dispute. He denied the suggestion of defence that he had not seen accused in the company of deceased on 24.05.2015.
12. PW5 SI Shama Kapoor is another formal witness. He had proved the PCR form Ex. PW5/A alongwith certificate under section 65B of The Indian Evidence Act.
13. PW6 ASI Baldan Singh is again a formal witness. He deposed that on 26.05.2015, he alongwith SI Sandeep, Incharge Crime Team and ASI Ram Niwas had gone to the spot and clicked 17 photographs of the dead bodies and of the spot and after developing the negatives, same were handed over to IO. He proved the photographs as Ex. PW-6/A1 to Ex. PW-6/A12 and negatives thereof as Ex. PW-6/B1 to Ex. PW-6/B15.
14. PW7 Ct. Ram Kishan had taken sealed exhibits alongwith SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 8 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:42:30 +0530 sample seals i.e. 14 sealed parcels for depositing the same in the office of FSL. He deposed that till the exhibits remained in his custody, same were not tampered with in any manner.
15. PW8 ASI Satbir Singh deposed that on 09.06.2015 at about 6.00 pm, he alongwith SI Karan Singh, HC Pradeep and HC Sushil reached at Jawahar Lal Nehru Stadium, Red Light area near Sai Baba Mandir where one Sh. Rahul Prakash met them; that they apprehended both the accused persons from footpath near Dayal Singh College at the instance of Sh. Rahul Prakash; that they were interrogated by Inspector Virender Dalal in police station and arrested in this case; that thereafter, he alongwith IO, SI Karan Singh, HC Pradeep, HC Sushil and both the accused reached at the spot i.e. JNS near gate no.4 and 5 under the foot over bridge and prepared pointing out memos Ex.PW-8/C and Ex. PW-8/D were prepared; that accused took them to ganda naala where one public witness Sh. Chander Pal was also joined in the investigation; that accused Rajesh Pal got recovered one knife from one pouch of green and blue colour on which 'New Impact Away Wash' was written from under the bridge of barrage no.1 from the water and mud; that sketch of knife Ex. PW-8/E was prepared and knife was sealed in a pullanda with the seal of KS and seizure memo Ex. PW-8/F was prepared; that the pants of accused Rajesh Pal and Danish (both of blue colours) were seized by IO vide seizure memo Ex. PW-8/G and Ex. PW-8/H respectively; that both the accused had disclosed that they had washed their pants and burnt their shirts; that both the accused were got medically examined and were kept in lock up. He correctly identified both the accused persons and the knife in the witness box. The witness was duly cross examined by Ld. defence SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 9 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:42:38 +0530 counsel at length.
16. PW9 Sh. Subodh Kumar Thakur deposed that he is working as a Caretaker in the NGO, 'SPYM' which runs de-addiction centre and night centre; that in May 2015, he had identified deceased Vishnu and Sunny from the photographs shown to him by the police as they used to come for treatment at De-addiction Centre and Night Shelter. He further deposed that he identified deceased Sunny on the basis of tattoo mark on his dead body; that he had informed to the police that one Pintu may be knowing the cause of death of these persons; that he had given treatment papers of deceased Vishnu to police which are Ex. PW-9/A1 to Ex. PW- 9/A12. He had identified photographs of deceased Vishnu as Ex. PW-4/F (P-1) and of deceased Sunny as Ex. PW-4/G (P-2).
17. PW10 Sh. Ram Bahadur @ Zakir deposed that since 2010, he has been residing in Rain Basera, Bapu Park and he has been kept by the SPYM Centre as he was addicted to drug; that he also used to help other addicts in de-addiction activities and supply syringes etc. to them; that he knew deceased Vishnu and Sunny; that on 24.05.2015 at about 10 pm, he was roaming in the area of Lodhi Road near Jawahar Lal Nehru Stadium; that he had seen accused Rajesh and Danish fighting with deceased on the patri near flyover near foot over bridge; that he had tried to pacify accused persons but they abused him and asked to leave; that he left the spot thereafter; that he had met the accused to supply small size syringe to them as they were addicted to drugs.
17A. He further deposed that after about 4-5 days, he had
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identified photographs of deceased Vishnu as P-1 (Ex. PW-4/F) and of deceased Sunny as P-2 (Ex. PW-4/G which were shown to him by police. He correctly identified both the accused persons in the witness box. The witness was duly cross examined by Ld. defence counsel at length.
17B. During cross examination by Ld. Amicus Curiae, he deposed that the deceased were aged about 15/16 years, he denied the defence suggestion that he did not know the deceased and identified them at the instance of police. He further deposed that he had seen accused arguing with the deceased and had not seen them fighting; that after seeing the fight, he had gone to night shelter (rain basera) for sleeping; that he did not see the accused in the area after the night of incident and saw them first time after the incident when they (accused and witness) were interrogated by police; that in past, some time police used to apprehend the drug addicts without any rhyme and reason; that he is availing treatment for his drug addiction. He denied the suggestion of defence that on the night of incident i.e. 24.05.2015, he was under heavy influence of drug. He further denied the suggestion that he had not seen the accused fighting with deceased. He voluntarily deposed that both the accused were inflicting fist blow on the deceased.
18. PW11 Retd. SI Devi Dayal is the first investigating officer of the case, who deposed that on 26.05.2015, on receipt of DD No. 36B regarding a dead body being buried under the Lodhi Road Over Bridge and foul smell coming out from the same, he alongwith Ct. Ramesh Chand reached at the spot and found two male dead bodies in highly decomposed condition; that he informed SHO PS Lodhi Colony in this regard, who SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 11 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:43:02 +0530 reached at the spot alongwith other staff members at about 7.15pm; that crime team officials and FSL officials were called who inspected the spot and photographs of the dead bodies were taken.
18A. He further deposed that on minute search of dead body, one person who was aged about 28 years was having a tattoo of 'Hanuman ji' on his arm and some biscuits and one syringe used for drugs were found from his clothes; that on search of other dead body who was aged about 30 years, some biscuits, inhaler and one match box were found; that the biscuit and syringe were seized vide seizure memo Ex. PW-11/A and biscuit and inhaler were seized vide seizure memo Ex. PW-11/B; that the pieces of cloth sheet were sealed in a pullanda with the seal of DDM and seized vide seizure memo Ex. PW-11/C; that the blood in gauze was lifted from the spot from two places and were sealed in two pullandas with the seal of DDM and seized vide memo Ex. PW-11/D; that earth control with blood was also taken and sealed with seal of DDM and seized vide memo Ex. PW-11/E; one pair of sports shoe were seized vide memo Ex. PW- 11/F; that both the dead bodies were shifted to AIIMS Hospital which were declared by doctor as brought dead; that he collected MLCs of both the deceased Ex. PW11/G and Ex. PW-11/H and the dead bodies were got preserved in mortuary for 72 hours to ascertain identity; that Ct. Mahesh was deputed at the mortuary.
18B. He went on to depose that thereafter he went to PS and got the pullandas deposited in malkhana; that he had shown the photographs of deceased to many persons in the area including Smt. Noor Jahan who identified the person having Hanuman tattoo on the arm as Vikas @ Sunny SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 12 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:43:09 +0530 and the photographs of other person as Vishnu Bahadur, who disclosed that both the deceased were staying on footpath in the area and they used to take drug syringes and used to get treatment from the De-addiction centre, Bapu Park; that he reached said De-addiction centre and met Sh. Subodh Kumar, Caretaker who confirmed that both the deceased used to take drugs by seeing their photographs; that thereafter he got issued hue and cry notice and sent wireless notices and also got published the photographs in the newspaper to ascertain complete identity of deceased; that his application for preservation of dead body is Ex. PW-11/I and the documents prepared by him in this regard are Ex. PW-11/J-9 collectively.
18C. He deposed that on 01.06.2015, he prepared inquest papers of both the dead bodies and filled the form 25.35 Ex. PW-11/K and Ex. PW-11/L (respectively) of Vikas and Vishnu; that his request for conducting postmortem examination of deceased Vikas and Vishnu are Ex. PW-11/M and Ex. PW-11/N respectively; that the postmortem on the dead bodies was conducted and doctor had handed over to him viscera box, blood in gauze and clothes in seal condition which were seized vide memo Ex. PW-11/O of deceased Vikas and Ex. PW-11/P of deceased Vishnu; that the dead bodies were got cremated at Nigam Bodh Ghat being unclaimed for and the pullandas were deposited in the malkhana.
18D. He further deposed that on 08.06.2015, he obtained postmortem reports of both the deceased and found that it was case of murder so he prepared rukka Ex. PW-11/R on the basis of DD No.36B Ex. PW-11/Q and got the instant FIR registered. Thereafter, further investigation was marked to Inspector Virender Dalal. He identified the SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 13 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:43:19 +0530 photographs Ex. PW-4/G and Ex. PW-4/F as the same, on the basis of which identity of deceased was established.
18E. The witness identified three cloth sheets (one printed and two other of light grey colour) as Ex. P1 colly, one pair of shoes, one shirt, one pant with belt and underwear as Ex. P2 colly, one cloth piece, one half pant, one underwear and shirt as Ex. P3 colly, one packet of biscuit make Parle, one inhaler make Cipla, one match box make New Hotel containing match sticks (kept in a polythene) as Ex. P4 colly, two packets of biscuit make Parle, one syringe of 5ml having imprint of "Safe+way Sterlite Hypodermic Syringe for single use (one unit)" sealed in its original packet as Ex. P5 colly, one plastic bottle (dabbi) each taken out from parcel No.1 and 2 in which blood was lifted with the help of cotton and gauze from beneath the dead body aged about 30 years as Ex. P6 colly, one plastic bottle (dabbi) taken out from parcel No.3 in which blood was lifted with the help of cotton and gauze from beneath the dead body aged about 28 years as Ex. P7 colly, one plastic bottle (dabbi) taken out from parcel No.5 containing concrete and tile pieces from beneath the dead body aged about 30 years as Ex. P8 colly, one plastic bottle (dabbi) taken out from parcel No.6 containing concrete and tile pieces from beneath the dead body aged about 28 years as Ex. P9 colly, pair of shoes as Ex. P10.
18F. He deposed that after registration of case, further investigation was carried out by SHO, Inspector Virender Dalal, who had prepared rough site plan of the place where the dead bodies were recovered and his statement was recorded. The witness was cross examined by Ld. defence counsel at length.
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19. PW12 Sh. Chandra Shekhar deposed that on 24.05.2015 at about 11 pm, accused Rajesh and Danish alongwith some other boys were making noise in front of his shop; that thereafter he turned them away from there; that after 4-5 days, he came to know that Sunny and Vishal had died and their dead bodies were found near Jawahar Lal Nehru Stadium; that he knew deceased and accused persons as they used to give scrap articles at his shop; that he had identified the photographs of deceased in the police station; that he could not say with surety that on 24.05.2015, deceased were also with accused persons as it was dark on the other side of his shop, however all of them had gone towards Nehru Stadium when he had asked them to go away from his shop; that he had correctly identified both the accused in the witness box.
19A. On being cross examined by Ld. Addl. PP for the state, he deposed that he did not tell the police that on 24.05.2015 at around 11 pm when he was present at his godown, he saw accused Rajesh and Danish having caught hold of deceased and beating them; that he did not tell the police that he had seen the deceased for the last time with accused on 24.05.2015 at around 11.00-11.15 pm when they had come to his godown or that he had shooed them away or that accused had taken the deceased towards Nehru Stadium.
20. PW13 HC Shish Pal is a formal witness i.e. MHC(M) who deposed about deposit of various exhibits on different dates in the malkhan during investigation of the present case.
21. PW14 Sh. Alok Sharma is the informant who informed the SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 15 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:43:35 +0530 police at 100 number after discovering the dead bodies under the bridge.
22. PW15 Dr. B.K. Mohapatra is the expert witness from CFSL, who inspected the spot on 26.05.2015 at about 7.00 pm alongwith other expert Sh. P.K. Gautam. He deposed that two male bodies of average growth lying in between the cemented space leading to the stairs; that there was maggot growth and insect growth on the dead bodies; that the upper skin layer of the dead bodies were found to be loosen because of decomposition; that the police persons available were advised to carry out postmortem of the dead bodies; that the area was searched for any further forensic clue materials but no such material could be detected from the spot.
23. PW16 Sh. Chander Pal deposed that he used to sell jalebi and samosa near Railway Phatak, Sewa Nagar; that on 09.06.2015 at about 10.00 pm, when he was closing his shop, one police gypsy came there, in which one accused (whose name was found to be Rajesh) was also present with the police officials; that police joined him in the investigation; that accused Rajesh took the police in the naala underneath the pul and got recovered a polythene of green and blue colour of surf powder containing one knife; that said knife was wrapped in a cloth and sealed in a pullanda and he had signed the seizure memo of knife Ex. PW-8/F at point A. The witness correctly identified the accused Rajesh in the court. He also identified the said knife as Ex. P1 and plastic pouch of blue and green colour of detergent as Ex. P2.
23A. During cross examination by Ld. defence counsel, he
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deposed that the width of the nala may be 100 feet; that at the time of recovery, nala was having little water also; that accused had taken out the polythene containing knife by using his hand; that police officials were having two big torches with them; that there was a poll of light on the proportion of the nala; that the place from where recovery was made, was not a thorough fare. He denied the suggestion that no recovery was effected in his presence or that the knife has been planted upon the accused.
24. PW17 Dr. Umar Maqboor had proved the MLCs No. 7172/2015 (Ex. PW-11/G) and 7174/2015 (PW11/H) prepared by Dr. Pratap Avvaru. He had also identified the signatures of Dr. Pratap Avvaru on said MLCs deposing to the effect that he had seen him writing and signing during course of his employment.
25. PW18 SI Karan Singh is the witness to the investigation and he deposed on the lines of PW8 i.e. ASI Satbir Singh in his examination- in-chief. During his cross-examination, he deposed that the Sewa Nagar, nala was situated at the distance of about 1 km from the place of incident and the said nala is accessible by public person. He denied the suggestion of defence that Chandrapal was a stock witness.
26. PW19 Dr. Kanak Lata Verma proved the viscera report Ex.PW19/A. As per said report, no metallic poison, ethyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquilizers and pesticides could not be detected in exhibits 1A, 1B, 1C, 1D, 2A, 2B, 2C and 2D.
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27. PW20 Ms. Pooja Shrotriya is an expert witness who proved her report Ex.PW20/A wherein it was opined that the human blood was detected on various exhibits which were sent for examination. The exhibit inter alia included the weapon of offence i.e. knife and as per said report human blood was detected upon same however, the ABO grouping could not be established meaning thereby it could not be established as to which group the said human blood belonged to.
28. PW21 is the second investigating officer, who deposed on line of prosecution case. He deposed that on 08.06.2015, he prepared site plan Ex.PW21/A and thereafter went to 'Rakshak Shelter Home' alongwith other police officials, where he recorded the statement of caretakers, who informed that the deceased used to roam with one Rahul Prakah @ Pintu and Jakid. He further deposed that he examined Rahul Prakash @ Pintu and Jakir, who stated that the deceased were lastly seen with Rajesh Pal and Danish (i.e. accused) on 24.05.2015, that on 09.06.2015, at about 08.10 pm, SI Karan produced both the accused in his office who after interrogation confessed about their guilt that on 24.05.2015, they had murdered the victims. He further deposed about preparation of arrest/personal search memo and pointing out memo. He deposed that accused Rajesh Pal let them to fruit market, Sewa Nagar and one public person named Chandrapal was joined the investigation, that accused Rajesh Pal got recovered a knife from ganda nala, fruit market near Sewa Nagar, that the knife was concealed by the accused Rajesh Pal in the soil in the plastic pouch of washing powder, that the same was seized vide seizure memo Ex.PW8/F. SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 18 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:11 +0530 28A. He further deposed that he seized the jeans trousers of the both accused vide seizure memo Ex.PW8/G and PW8/H which they were wearing on that day. As per the witness, the accused were wearing the same jeans at the time of murder. His remaining testimony is to the effect of further investigation conducted by him. During his cross-examination, he deposed that the width of nala was around 40 feet, that there was no electric pole near the nala but they were having two torches, that the knife was buried under the sand in the nala, that the soil was dug by accused Rajesh Pal.
29. As mentioned above, both the accused admitted the postmorterm report Ex. A1 and A2 of both the victims vide there separate statements recorded on 09.03.2018. Therefore, the said reports can be read into evidence without formal proof of same in terms of Section 294 CrPC.
DISCUSSION ON LAW:
30. Since the case of prosecution is based on circumstantial evidence, it would be apt to have a look on the law in this regard. Supreme Court in Anwar Ali and Another Versus The State of Himachal Pradesh, Crl Appeal No.1121/2016 dated 25.09.2020, held as under:-
"5.4 It is also required to be noted and it is not in dispute that this is a case of circumstantial evidence. As held by this Court in catena of decisions that in case of a circumstantial evidence, 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 the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 19 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:18 +0530 inconsistent with his innocence. In the case of Babu (supra), it is observed and held in paragraphs 22 to 24 as under:
"22. In Krishnan v. State (2008) 15 SCC 430, this Court after considering a large number of its earlier judgments observed as follows: (SCC p. 435, para 15) "15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)"
23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 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 prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153)
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(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 SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 20 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:27 +0530 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. A similar view has been reiterated by this Court in State of U.P. v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttaranchal (2009) 15 SCC 259.
24. In Subramaniam v. State of T.N (2009) 14 SCC 415, while considering the case of dowry death, this Court observed that the fact of living together is a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive proof, and there must be some evidence to arrive at a conclusion that the husband and husband alone was responsible therefor. The evidence produced by the prosecution should not be of such a nature that may make the conviction of the appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan (2009) 12 SCC 603)."
5.5 Even in the case of G. Parshwanath (supra), this Court has in paragraphs 23 and 24 observed as under:
"23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 21 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:36 +0530 the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
31. In Shivaji Chintappa Patil Vs State of Maharashtra, Crl. Appeal No. 1348/2013 dated 02.03.2021, Hon'ble Apex Court observed as under:
"11. The law with regard to conviction on the basis of circumstantial evidence has been very well crystalised in the judgment of this Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be"
SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 22 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:45 +0530 established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made : [SCC para 19, p. 807 : SCC (Cri) p. 1047] "19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
32. Further, in State of Odisha Vs Banabihari Mohapatra and Anr., Special Leave Petition (Crl.) No.1156/2021, dated 12.02.2021, Supreme Court held as under:-
"35. Before a case against an accused can be said to be fully established on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn must fully be established and the facts so established should be consistent only with the hypothesis of guilt of the accused. There has to be a chain of evidence so complete, as not to leave any reasonable doubt for any conclusion consistent with the innocence of the accused and must show that in all SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 23 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:44:54 +0530 human probability, the act must have been done by the Accused.
36. In Shanti Devi v. State of Rajasthan reported in (2012) 12 SCC 158, this Court held that the principles for conviction of the accused based on circumstantial evidence are:
"10.1. The circumstances from which an inference of guilt is sought to be proved must be cogently or firmly established.
10.2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. 10.3. The circumstances taken cumulatively must 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.
10.4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the 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."
37. Keeping the above test in mind, we have no iota of doubt that the Trial Court rightly acquitted the Accused Respondents. There is a strong possibility that the accused, who was as per the opinion of the doctor who performed the autopsy, intoxicated with alcohol, might have accidentally touched a live electrical wire, may be while he was asleep. The impugned judgment of the High Court dismissing the appeal on the ground of delay does not call for interference under Article 136 of the Constitution of India.
38. It is well settled by a plethora of judicial pronouncement of this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt. This proposition has been reiterated in Sujit Biswas v. State of Assam reported in AIR 2013 SC 3817.
39. In Kali Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773, this Court observed:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 24 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:01 +0530 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 adopted. This principle has a special relevance in cases where in the guilt of the accused is sought is to be established by circumstantial evidence."
33. Next, in Anjan Kumar Sharma Vs. State of Assam (2017) 14 SCC 359, it was observed:
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' not and 'may be' established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature of tendency;
(4) They should exclude every possible hypothesis except the one to be provided; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must shown that in all human probability the act must have been done by the accused (See: Sharad Birdhichand Sarda v. State of Maharashra (1984) 4 SCC 116; M G Agarwal v. State of Maharashtra AIR 1963 SC 200)."
34. The principles with regard to appreciation of circumstantial evidence have also been explained in Gagan Kanojia Vs. State of Punjab (2016) 13 SCC 516.
35. Therefore, the principle, as laid down in aforesaid judicial dicta, is that in cases based on circumstantial evidence, circumstances from which the conclusion of guilt is drawn should be fully proved and such SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 25 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:10 +0530 circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. The various circumstances in the chain of events must be such so as to rule out the reasonable likelihood of innocence of accused. The missing of important link snaps the chain of circumstances and the other circumstances cannot in any manner establish guilt of accused beyond all reasonable doubts.
36. In light of these guiding principles, I shall now give my findings in the factual matrix of present case.
FINDINGS:
37. Firstly, I shall adjudicate if prosecution has been able to successfully prove the various circumstances, whereupon it relies, in the present case.
CIRCUMSTANCE OF LAST SEEN:
38. Apex Court in Nizam & Anr. vs. State of Rajasthan, Crl. Appeal No. 413/2007, decided on 04.09.2015, discussed the law regarding last seen theory. It was observed: -
"Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 26 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:17 +0530 does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad
218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319."
39. Further, in Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh, Appeal (Crl.) 997 of 2005, Hon'ble Apex Court held as follows:
"It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603].
The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."
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40. In case of State of U.P. v. Satish, Appeal (Crl.) 256-257 of 2005, with regard to last-seen theory following was held:
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses."
41. The other cases of Supreme Court based on last-seen theory is tabulated below for ease of appreciation and understanding:
1 Bodh Raj @ Bodha v. State of Jammu and Kashmir, The last seen theory comes into play where the (2002) 8 SCC 45; time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility ...............
2 Tipparam Prabhakar v.
State of Andhra Pradesh, 8. The last-seen theory comes into play where (2009) 13 SCC 534; the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility ..................
3 Rishi Pal v. State of Uttarakhand, (2013) 12 18. Finally in Jaswant Gir v. State of Punjab SCC 551; (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 28 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:35 +0530 Court gave benefit of doubt to accused persons.
4 Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279; 24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438, this Court held that in absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.
5 Kiriti Pal v. State of West Bengal, (2015) 11 SCC 14. From the evidence of PWs 6, 7 and 10, 178; prosecution has thus established that Anjali was last seen alive in the company of first appellant Kiriti Pal on the evening of 11.11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of "last seen alive"
comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. .................
6 State of Karnataka v. Chand Basha, (2016) 1 SCC 501; 14. The prosecution story relies upon the 'last seen together' theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together' theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the 'last seen together' theory beyond reasonable doubt ............
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7 Rambraksh v. State of
Chhattisgarh, (2016) 12 12. In the present case as noticed above the SCC 251; Sessions Court as well as the High Court convicted the appellant/ accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside.
8 Anjan Kumar Sharma v.
State of Assam, 2017 (6) 21. It is clear from the above that in a case SCALE 556 where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. .............................
42. Having discussed various principles of law on the aspect of 'last seen', I shall now examine the facts of present case qua circumstance of last seen. As mentioned above, Ld. Addl. PP for the State relied upon testimony of PW4 Rahul Prakash and PW10 Ram Bahadur in support of said circumstance. As per learned Addl. PP, the state is relying upon following circumstances to invoke 'theory of last seen' against the accused in the instant case:
(i) on 24.05.2015 at about 10.30 pm, both the accused were seeing fighting with deceased as per the deposition of PW4, having being duly corroborated by PW10 and soon thereafter, they were found to be dead on 26.05.2015.
(ii) That the time of death as per post-morterm report corresponds with the time when both the victims were lastly seen alive in the company of accused.
43. However, prior to invocation of 'theory of last seen' in the SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 30 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:51 +0530 instant case, it was incumbent upon prosecution to prove the identity of deceased beyond reasonable doubts. For proving the said identity, prosecution relied upon testimony of PW4, PW9 and PW10. However, in my considered view, none of the said witnesses have been able to prove beyond all reasonable doubts about the identity of deceased in the instant case.
44. Admittedly, both the dead bodies were discovered in highly decomposed condition. The photographs Ex.PW4/F and Ex. PW-4/G of the said bodies, as placed on record by prosecution, are evidence of such highly decomposed condition of said bodies wherein faces are beyond recognition. The age of both the dead bodies were ascertained to be around 30 and 28 years as per MLCs Ex.11/G and 11/H. 44A. However, as per PW4 i.e. one of the witnesses upon whose testimony, prosecution relies to prove the identification of deceased as victim Sunny and Vishnu, the age of Vishnu was about 17-18 years and that of Sunny was 18-19 years. During his cross-examination, the witness admitted the suggestion of defence on this count. Therefore, the version as put forth by the said witnesses that the age of both the victims was around 17-19 years, is in material variance with the MLCs of both the deceased (whose dead bodies were discovered and sent for medical examination) wherein the age has been reported as 28/30 years.
44B. Furthermore, the testimony of PW10 Ram Bahadur @ Jakir also does not come to the aid of prosecution as during his cross- examination, it was deposed by the witness that the age of Sunny and SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 31 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:45:58 +0530 Vishnu were 15/16 years. Therefore, it is evident that the deposition of PW10 is also in variance with the age estimation of the deceased as given in their MLCs Ex.PW11/G and 11/H. 44C. The prosecution also relied upon testimony of PW9 Sh. Subodh Kumar Thakur i.e. the caretaker of the concerned 'de-addiction centre' who identified both the deceased as Vishnu and Sunny from their photographs. However, as mentioned above, since both the dead bodies were in highly decomposed condition with faces being beyond recognition, it would be unsafe to hold that the identities of both the deceased got proved beyond all reasonable doubts more so, in view of the high age variance (of the dead bodies vis-a-vis Vishnu and Sunny) as came on record in the testimony of PW4 and PW10.
44D. Ld. Addl. PP for the State vehemently argued that PW9 had identified one of the deceased as Sunny in view of the tattoo mark (of Lord Hanuman as per Hindu mythology) on the dead body. However, in my view, the said mark can at best be of some corroborative value for the purpose of identification and cannot and ought not be the sole evidence to identify the dead body as such tattoo mark can be engraved by any tattoo artist on all and sundry and just because both i.e. Sunny and one of the dead bodies had similar tattoo mark, it cannot be said to be proved that the deceased was none else but Sunny.
45. Therefore, it is held that the version of prosecution that both the deceased were victim Sunny and Vishnu has not got proved beyond all reasonable doubts.
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46. Be that as it may, even if it is assumed that the deceased were in fact Vishnu and Sunny as claimed by prosecution, then also the 'circumstance of last seen', as vehemently relied upon by Ld. APP for State, has not got proved cogently in the instant case. As per prosecution version, both the victims were lastly seen alive in the company of accused on 24.05.2015 at around 10.30 pm and soon thereafter, they were found to be dead. PW4 one of the witnesses in support of said circumstance, deposed that at around 10.30 pm, he saw Vishnu having been caught hold of by accused Rajesh and victim Sunny having been caught hold by accused Danish. Further PW10 Ram Bahadur also deposed that on 24.05.2015 at about 10.00 pm, he had seen Rajesh and Danish in the Lodhi Road area near Jawahar Lal Stadium, fighting with victims Sunny and Vishnu.
47. The dead bodies were admittedly discovered on 26.05.2015 at around 6.50 pm, i.e. after a gap of around 44 hours. The exact time of death could not be ascertained in view of the bodies being in highly decomposed condition. As per postmorterm report, Ex.A1 and A2, the time since death has been reported as 'about a week' ago. Therefore, it is evident that the said report is not conclusive enough to ascertain the exact time of death so as to reach at a conclusion that both the victims were murdered soon after they were seen alive in the company of accused. Further, the postmorterm in the instant case got conducted on 01.06.2015 between 2.00 to 3.00 pm. Therefore, counting therefrom, the date of death roughly comes around 24.05.2015/ 25.05.2015. The victims were lastly seen alive in the company of accused on 24.05.2015 at around 10-10.30 pm. Though, the postmorterm report opines the time of death around 24-
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25.05.2015, however, as mentioned above, in absence of cogent evidence as to the time or even the date, when the death of victim occurred, it cannot be said that both the victims were found dead soon after they were lastly seen alive in the company of both the accused i.e. on 24.05.2015 at about 10.30 pm.
48. Hon'ble Delhi High Court in a similar situation, while setting aside a conviction for offence u/s 302 IPC in case titled as Deepak Sarna vs. State (NCT of Delhi), Crl. Appeal No. 174/2004, observed as under:-
"49. The picture that emerges from the above discussion is that PWs 1, 5 and 6 are consistent that when he was met by them on 29th October 2000, A-3 admitted that the deceased had visited him on 28 th October 2000 in the evening and was there till around 10 pm. However, this by itself will not make this an incriminating circumstance vis-a vis A-3, since the time and place of discovery of the dead body was not proximate to this event. It will be recalled that the post mortem report placed the time of death at 3 days prior thereto which takes it to the morning of 29th October 2000 and not the night of 28th October 2000.
50. The fact that the dead body was found three days later on 31 st October 2000 and in a well in village Simbhavali in U.P. at a considerable distance from Malviya Nagar makes this circumstance of last seen a rather weak piece of evidence qua A-3. The legal position in this regard has been explained by the Supreme Court in State of U.P. v. Satish (2005) 3 SCC 114, as under:
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 34 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:46:36 +0530
51. In State of Karnataka v. Chand Basha (2015) 3 ACR 3439, the Supreme Court explained:
"This Court has time and again laid down the ingredients to be made out by the prosecution to prove the „last seen together‟ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established."
49. Therefore, in my view, once prosecution fails to establish cogently the circumstance of last seen, the case of prosecution, which essentially relies upon the 'circumstance of last seen', comes crumbling like a house of card.
50. Be that as it may, even if it is assumed that the prosecution has been able to prove the circumstance of last seen cogently, then also I am of the view that circumstance by itself is not sufficient to complete the chain of circumstance to return a find of guilt in a case based upon circumstantial evidence. I quote with profit the law laid down in Arjun Marik Vs. State of Bihar (1994) 2 SCC 372, wherein it was observed as under:-
"31... It is settled law that the only circumstance of last seen will not complete the chain of circumstances to record
(a) finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction, on that basis alone, can be founded."
51. Similar are the observations in Sahadevan Vs. State of Tamil Nadu, (2012) 6 SCC 403.
52. In the instant case, apart from the aforesaid circumstance, the other circumstance on which prosecution heavily relies is the recovery of SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 35 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:46:44 +0530 weapon of offence i.e. knife at instance of accused Rajesh Pal. However, in my view, the said circumstance i.e. recovery of weapon of offence at the instance of accused Rajesh Pal, as vehemently relied upon by Ld. Addl. PP for the state, pales into insignificance in view of failure of prosecution to prove identity of deceased beyond all reasonable doubts and in view of failure of 'theory of last seen'. Even otherwise, it is evident from FSL report Ex. PW20/B that though human blood was detected on the knife, however in view of 'no reaction', whether the said human blood was of deceased stands not proved in the instant case.
53. Though the subsequent opinion Ex. A3 opines that the antemortem external injuries on the dead bodies of the deceased could be caused by recovered knife i.e. weapon of offence and cut marks on the wearing shirt of both the deceased may be possible by the recovered knife, however the said opinion is not conclusive in nature in view of word 'may' in the said opinion and can at best be of some corroborative value, once the prosecution is able to prove that the said knife was in fact the one, which was used in commission of crime. However, the cogent evidence in support of said circumstance is missing in the instant case.
54. Be that as it may, even if it is assumed that the knife allegedly recovered at the instance of accused Rajesh Pal was in fact the same weapon which was used in the commission of alleged crime, then also it is a settled law that the sole circumstance i.e. recovery of weapon of offence cannot result into conviction of an accused in a case based upon circumstantial evidence. Reference can be made to the judgment of Hon'ble Delhi High Court in Saddak Hussain vs State (NCT Of Delhi), SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 36 of 39 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:46:50 +0530 Crl. Appeal No. 717/2018, decided on 15 May 2019, wherein it was observed as under:-
"40. Moreover, there is no direct evidence against the appellant for upholding his conviction under Section 302 IPC. Mere recovery of the weapon of offence at the instance of the appellant cannot be the sole premise on which a judgment of conviction under Section 302 IPC could be recorded. It is too slender an evidence to hold him guilty of such an offence. This is particularly so when the fifth accused, who as per the prosecution, is the one who had pulled out the pistol and fired at the deceased, has been acquitted by the learned ASJ. There is also no explanation as to why despite the second accused, who was arrested on 26.12.2016, three days before the appellant was arrested, stated in his disclosure statement that he could get the weapon of offence recovered from a third person, no steps were taken in that direction. In the absence of any other evidence connecting the appellant with the commission of the murder of the deceased, the trial court could not have proceeded to convict him for the offence under Section 302 IPC while proceeding to acquit the remaining accused. For the aforesaid reason too, the impugned judgment is unsustainable, being contrary to the settled legal position and is accordingly quashed and set aside alongwith the order on sentence."
55. To summarize: the identity of deceased has not been proved beyond all reasonable doubts in the instant case, the theory of last seen also stands not proved in view of huge time gap between the deceased being seen alive in the company of accused and the time when they were found to be dead, the date and time of death is uncertain in the postmortem report and there is nothing on record to suggest that the human blood found on the weapon of offence, was that of deceased.
56. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 37 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:46:59 +0530 but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
57. Further, in Jose vs. Sub Inspector of Police, Koyilandy & Ors., (2016) 10 SCC 519, the Supreme Court held as under:-
"In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non- existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted."
58. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon by the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypothesis of guilt of accused can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of the accused. Accordingly, both the accused persons stand acquitted in the instant case of all the charges levelled against them. They be released from custody, if not required in any other case. The accused are directed to furnish bail bonds SC No. 1191/16, FIR No. 205/15, PS Lodhi Colony State vs. Rajesh Pal & Anr. 38 of 39 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.04.05 13:47:07 +0530 in terms of section 437A CrPC.
59. File be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.04.05
13:47:15 +0530
Announced in the open (ANUJ AGRAWAL)
Court on 8th April, 2022 Additional Sessions Judge-05,
South East, Saket Courts, New Delhi
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