Delhi District Court
State vs 1. Gaurav on 2 December, 2019
CNR No.DLNW010081852016
FIR No. 700/16 PS Mangol Puri
U/s 302/394/397/411/34 IPC
IN THE COURT OF ADDITIONAL SESSION JUDGE 03
NORTH WEST : ROHINI : DELHI
Session Case No. 53566/16
CNR No. DLNW010081852016
FIR No. 700/16
PS. Mangolpuri
Under Section 302/394/397/411/34 IPC
In the matter of:
STATE VERSUS 1. Gaurav
S/o Lt. Sh. Prem Singh
R/o Jhuggi No.W29/59
BlockF,
Mangolpuri, Delhi
2. Kishan Rai @ Ganja
S/o Lt. Sh. Ramdan Rai
R/o G206, Mangolpuri
Delhi
Date of FIR : 24.06.2016
Date of Committal : 17.10.2016
Date of Argument : 02.12.2019
Date of Judgment : 02.12.2019
Sh. Shiv KumarI, Ld. APP for State
Sh. Shubham Asre, Ld. Amicus Curie for both accused
Order/Judgment: Both accused Gaurav and Kishan are
acquitted of offense under Section 302/34,
394/34, 397/34 of IPC and 25 & 27 of Arms
Act
JUDGMENT
1. Criminal justice delivery system was set in motion on SC No.53566/2016 State v. Gaurav & Ors. Page No. 1 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC 23.06.2016 when an intimation was given by Deepak (PW1) to PCR which in turn was conveyed to Police Station Mangolpuri at about 10:50 PM to the effect that a man was lying unconscious near Mangolpuri West Enclave Bus Stand near Kali Mata Temple near main road near Outer ring Road. Such information was recorded in the PS vide DD No. 58A and same was assigned to ASI Rajbir (PW23) who alongwith Ct. Kanhai Lal (PW18) reached at the spot where blood was lying spread/scattered on footpath. Deepak (PW1), caller to the PCR met them and informed that he was returning home and when he was about to catch bus from West Enclave Bus Stand he saw one unconscious man lying unconscious and injured in pool of blood and then he called police by calling at 100. He further informed that PCR van came there and had taken the injured to SGM Hospital.
2. Leaving Ct. Kanhai (PW18) at the spot to protect it, ASI Rajbir (PW23) reached at the Hospital where said unknown person was reported to have been brought by police in unconscious state with A/H/O stab injury in anterior chest wall and patient brought dead vide MLC No. 11848/16. At hospital doctor handed over sealed pullinda containing blood stained shirt of the deceased, with sample seal to ASI Rajbir and he also handed over wristwatch, one handkerchief, a pen and Rs 110/ found from the pocket of the deceased. Same were taken into possession in sealed pullinda. Body of the deceased was thereafter shifted to mortuary for postmortem. No witness was found at the hospital. Thereafter, ASI Rajbir returned to the spot, called the Crime Team at the spot and got the FIR registered under Section 302 IPC, thereafter further investigation was assigned to Insp. Rajpal Singh SC No.53566/2016 State v. Gaurav & Ors. Page No. 2 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC (PW26).
3. During investigation at the instance of the caller (PW1) site plan of the spot was prepared and his statement under Section 161 CrPC was recorded. From the spot blood stained clothes, slipper was picked up and were kept in sealed pullinda. Blood on gauze were lifted from three places at the spot and were kept in sealed plastic box. In order to ascertain identity of the deceased photographs of the deceased was handed over to beat constable.
4. During investigation one Vipin @ Farro (PW9) met IO and informed him that on 23.06.2016 at about 10:30 PM he was relieving himself on the vacant land near his jhuggi and a man with heavily loaded hand bag (thaila) had gone towards the West Enclave Bus Stand from the side of jhuggi. Gaurav (accused herein), A @ P (name withheld being juvenile) and Kishan @ Ganja (accused herein) were going after him and when that man reached near footpath Outer Ring Road near Pipal Tree then Gaurav held that man by neck and A @ P and Kishan @ Ganja put their hand into the pocket of the said man. When said man resisted Gaurav stabbed knife on the chest of that man and thereafter all three ran away with the bag of the man and articles taken out from the pocket of the said man, towards the patthar market. Thereafter Vipin @ Farro (PW9) took the police to the respective house of the accused Gaurav, A @ P and Kishan @ Ganja where they were not found.
5. Beat constable Ravinder (PW19) later on informed that he SC No.53566/2016 State v. Gaurav & Ors. Page No. 3 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC had shown the photographs of the deceased to Arun Kumar Jha (PW2) the president of RWA of FBlock, Mangolpuri and he identified the deceased as Kailash Chaudhary resident of F Block Mangolpuri and then he took the constable and the photographs to the house of the said Kailash Chaudhary where Vikas son of the Kailash Chaudhary identified his father from the photograph and confirmed that said unidentified deceased was Kailash Chaudhary S/o Lt. Sh. Shiv Chaudhary R/o F421, Mangolpuri, Delhi.
6. Later on accused persons herein were arrested from District Park Sec1, Rohini Near Y Block, Mangolpuri, on secret information and on the identification of Vipin@ Farro. One blood stained knife was recovered from accused Gaurav and one purse containing ESI card of son Vikas of the deceased was recovered from accused Kishan. They also admitted of their guilt and got recovered one thaila snatched from deceased and a blood stained shirt of the accused Gaurav, from the bushes of DSIDC complex. Minor accused A @ P was also later on arrested. Case properties were sent for forensic examination and opinion of doctor about the recovered from the accused Gaurav was obtained. After completion of investigation chargesheet was filed before the concerned magistrate for offense under Section 302, 394, 397 IPC and 25 and 27 Arms Act.
7. Ld. Magistrate took cognizance of the offense and after complying with the provision of Section 207 CrPC committed the case to the Session Court and it was assigned to this court SC No.53566/2016 State v. Gaurav & Ors. Page No. 4 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC
8. Prima facie finding case having been made out, Ld. Predecessor of this court was pleased to frame charge under Section 302/34 and 394/34 IPC against both accused persons and under Section 397 IPC and under Section 25(1B)(b) and 27 of Arms Act against accused Gaurav, to which accused persons pleaded not guilty and claimed trial.
9. In order to bring home charges against accused persons prosecution examined as many as 26 witnesses.
9.1. PW1 Deepak sought to prove making of call at 100 number after seeing the deceased lying injured and unconscious on the footpath near West Enclave Bus Stand and preparation of site plan Ex PW1/A of the spot.
9.2. PW2 Arun Kumar, President of RWA of F Block, Mangol Puri, sought to prove the identification of injured as Kailash Chaudhary in the photograph Mark PW1/B by himself and by the son of deceased and provided the CCTV footage of F Block, Mangol Puri.
9.3. PW3 HC Sanjay sought to prove the receipt of call to the effect that "ek aadmi behosh pada hai, jo injured hai" vide PCR form Ex.PW3/A. 9.4. PW4 SI Harish Chander Pathak, Nodal Officer, CPCR, PHQ sought to prove the certificate Ex.PW4/A u/S 65B Evidence Act in respect of the PCR form Ex.PW3/A. SC No.53566/2016 State v. Gaurav & Ors. Page No. 5 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC 9.5. PW5 Ramesh, Assistant Clerk, Office of Deputy Secretary Home sought to prove the notification Ex.PW5/A regarding non manufacturing, sell or possession of spring actuated knives, gararidar knives, buttondar knives and other knives which open or close with any other mechanical device with a sharp edged blade.
9.6. PW6 Ct. Naveen sought to prove the preparation of scaled site plan Ex.PW6/A of the place of occurrence i.e. in front of Buy the Best Marble Shop.
9.7. PW7 SI Satya Pal, I/C Crime Team, sought to prove his inspection report Ex.PW7/A of the spot i.e. West Enclave, in front of Marble Shop.
9.8. PW8 Vikas son of the deceased identified dead body of his father and sought to prove the identification statement Ex. PW8/A and also the handing over memo Ex.PW8/B vide which dead body was handed over to him after postmortem.
9.9. PW9 Vipin @ Farro is the star witness as he had allegedly witnessed the incident of robbery and murder of the deceased and allegedly at his instance and identification accused persons were arrested. He, however, had not supported the case of the prosecution and was cross examined at length by Ld. APP for the State.
9.10. PW10 Ct. Vikas, photographer of Mobile Crime Team SC No.53566/2016 State v. Gaurav & Ors. Page No. 6 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC sought to prove the photographs Ex.PW10/A1 to Ex.PW10/A8 of spot of recovery of dead body. He also sought to prove the negatives Ex.PW10/B of the said photographs.
9.11. PW11 HC Bhima was posted as Incharge PCR Van Libra 9 on the fateful day and he sought to prove reaching at the spot upon receiving PCR call and taking of that unconscious injured man to the SGM hospital and articles recovered from the personal search of the deceased.
9.12. PW12 ASI Suresh Kumar MHC(M) PS Mangol Puri, sought to prove various entries Ex.PW12/A, Ex.PW12/B and Ex.PW12/C in register no. 19 regarding deposit of case property in the maalkhana. He also sought to prove the RC Ex.PW12/D vide which case property was sent FSL.
9.13. PW13 Dr. Rohit Kumar, CMO, SGM Hospital, sought to prove the MLC Ex.PW13/A of the deceased prepared by him.
9.14. PW14 Dr. Manoj Dhingra, Incharge, Mortuary, SGM Hospital sought to prove the postmortem Ex.PW14/A report of the deceased, sketch Ex.PW14/B of the knife received to him for subsequent opinion and his report regarding the subsequent opinion Ex.PW14/C. 9.15 PW15 HC Manoj, duty officer, PS Mangol Puri, sought to prove the attested copy of the DD no. 58A Ex.PW15/A regarding a SC No.53566/2016 State v. Gaurav & Ors. Page No. 7 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC person lying unconscious near Mangol Puri, West Enclave Bus Stand, copy of FIR Ex.PW15/B, endorsement on rukka Ex.PW15/C and the certificate Ex.PW15/D u/S 65B Evidence Act issued by him. He also sought to prove the attested copy of DD No. 63A Ex.PW15/E regarding admission of unknown male in SGMH who was declared brought dead.
9.16. PW16 Ct. Pardeep Kumar, sought to prove the deposit of 8 pulandas in the FSL vide RC No. 211/21/16 Ex PW12/D. 9.17. PW17 HC Karambir sought to prove admission of an unknown male aged about 35 years in SGM Hospital vide MLC No. 11848, who was later on declared brought dead and recovery of articles from the personal search of the deceased.
9.18. PW18 Ct. Kanhaiya, sought to prove seizing of blood stained white color sheet (chaddar), one blood stained towel and one blood stained brown colored slipper, vide memo Ex.PW18/A , lifting of blood stains from the spot using cotton swabs and seizing the same vide memo Ex.PW18/B , seizing of the blood sample of the deceased and sealed pulanda of pant of deceased vide memo Ex.PW18/C, all from spot.
9.19. PW19 Ct. Ravinder sought to prove the search of identification of the deceased by showing the photograph Mark PW1/B in the area.
SC No.53566/2016 State v. Gaurav & Ors. Page No. 8 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC 9.20. PW20 Subhash, one of the sons of the deceased, sought to prove the identification statement Ex.PW20/A vide which he identified dead body of his father. He also sought to prove the dead body handing over memo as Ex.PW8/B. 9.21. PW21 Ct. Manoj sought to prove the delivery of copy of FIR to the concerned area MM, ACP, Addl. DCP and DCP Outer District.
9.22. PW22 SI Jaspal Singh, sought to prove the arrest of accused Gaurav and Kishan @ Ganja vide memo Ex.PW9/D1 and Ex.PW9/D2, their personal search memos Ex.PW9/E1 and Ex.PW9/E2. He also sought to prove recovery of one blood stained knife on the cursory search of accused Gaurav and the sketch of the knife Ex.PW22/A, seizure memo of knife Ex.PW22/B. He also sought to prove the recovery of one purse on the cursory search of accused Kishan @ Ganja and seizing of the purse Ex.PW22/C. Disclosure statement of the both the accused persons Ex.PW22/D and Ex.PW22/E were also proved by him. He further sought to prove the recovery of cloth bag and blood stained shirt at the instance of both the accused and seizing of the same vide Ex.PW22/F1 and Ex.PW22/F2 and the site plan Ex.PW22/G of the place of recovery of both the articles. He also sought to prove the pointing out memo Ex.PW22/H1 and Ex.PW22/H2 of the spot near West Enclave Bus Stand by both the accused persons.
9.23. PW23 ASI Rajbir sought to prove seizing of the pullinda SC No.53566/2016 State v. Gaurav & Ors. Page No. 9 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC handed over by the doctor concerned containing blood stained shirt of the deceased vide memo Ex.PW23/A. He also sought to prove the seizing of the articles of the accused like handkerchief, one pen, one wrist watch and Rs. 110/ vide memo Ex.PW23/A1. He sought to prove the making of rukka on DD No. 58A by him Ex.PW23/B. He sought to prove the certificate u/S 65B Evidence Act regarding the photographs clicked by him from his mobile phone vide memo Ex.PW23/C. 9.24. PW24 HC Satender Kumar, sought to prove the arrest and personal search of accused persons vide Ex.PW9/D1, Ex.PW9/D2, Ex.PW9/E1 and Ex.PW9/E2. He further deposed on the same line of action as of PW22 SI Jaspal Singh.
9.25. PW25 Ms. Imrana, Sr. Scientific Officer, Biology, FSL Rohini, sought to prove her detailed report regarding biological examination and DNA profiling of the exhibits vide report Ex.PW25/A. 9.26 PW26 Inspector Rajpal Singh sought to prove his request Ex.PW26/A for postmortem and form no. 25.35 (i)(B) Ex.PW26/B. He further sought to prove his investigation thereby corroborating the testimony of other witnesses.
10. After closure of the prosecution evidence, all incriminating material as appearing in evidence were put to the both accused persons and their respective responses were recorded under Section SC No.53566/2016 State v. Gaurav & Ors. Page No. 10 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC 313 CrPC. However, they sought not to lead any evidence in their respective defense. In their response they claimed that they have been falsely implicated.
11. Ld. APP for the State has submitted that although eye witness PW9 Vipin has not supported the case of the prosecution but despite that there is ample evidence on record which connects the accused persons with the crime. He has submitted that prosecution has successfully proved that at the instance of accused Gaurav and Kishan the cloth bag (thaila) of the deceased was recovered from the bushes of DSIDC complex. He further argued that the said thaila was identified in judicial TIP by the son(PW8 Vikas) of the deceased as belonging to his deceased father. He further submitted that it has also been successfully proved that blood stained shirt of the accused Gaurav was recovered from the bushes of DSIDC complex at the instance of the accused persons and the fact that thaila and blood stained shirt of the accused Gaurav were concealed in the bushes of DSIDC was known to the accused itself shows their complicity in the crime. He has further submitted that prosecution successfully proved the recovery of a purse containing ESI Dispensary Card in the name of the Vkas Kumar (PW8). He has further submitted that recovery of articles of the deceased from the accused persons proved that it the accused persons who robbed and murdered him. He has further submitted that eye witness Vipin (PW9) though turned hostile but he categorically admitted that arrest memos of the accused persons bears his signature which go on to show that accused persons were arrested only on the identification of the witness(PW9). He has further SC No.53566/2016 State v. Gaurav & Ors. Page No. 11 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC submitted that a blood stained knife was also recovered from the accused Gaurav and though DNA profile could not be generated from the blood found on the knife nevertheless it does points out towards the guilt of accused persons, hence, he has prayed for convicting the accused persons under al head of charges.
12. On the contrary, Ld. Amicus Curie for the accused has submitted that prosecution has completely failed to prove its case, not to talk of proving its case beyond reasonable doubt. He has submitted that prosecution begin its case that the incident of robbery and murder of the deceased has been witnessed by PW9 Vipin @ Farro but the said eye witness did not support the case of the prosecution and said witness went on to depose that his signatures were obtained on many papers by the police officials. He has further submitted that it should not be ignored that witness PW9 Vipin is aged about 14 years who will hardly have any courage to disobey the police officials and therefore his assertion that police obtained his signature has got to be accepted by this court. He has further submitted that from the cross examination of PW9 Vipin @ Farro by Ld. APP for the State, nothing could be elicited from him which could support the case of the prosecution.
13. He has further submitted that all other witnesses are witnesses to the investigation which proves the investigation based on the theory that incident of robbery and murder of deceased was witnessed by PW9 Vipin @ Farro. He submitted that the testimonies qua investigational aspect of itself neither proves the guilt of the SC No.53566/2016 State v. Gaurav & Ors. Page No. 12 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC accused persons nor does they connect the accused persons with crime. He further submitted that the forensic evidence also is of no help to the prosecution so far as proving the guilt of accused persons are concerned. Hence, he has prayed that accused persons be acquitted of all the charged for which they faced trial.
Analysis
14. Prosecution has successfully proved through PW1 Deepak that he saw an unconscious injured person lying on the footpath near West Enclave Bus Stand at about 10:50 PM and called police by dialing 100 and that he had stated about the same to ASI Rajbir (PW23). PW3 HC Sanjay and PW4 SI Harish Chander Pathak proved the calling of PCR by PW1 Deepak by proving the PCR form Ex PW3/A with certificate Ex PW4/A under Section 65B of Evidence Act. PW11 HC Bhim Ram, the PCR Van Libra 9 Incharge proved his arrival pursuant to PCR call by PW1 Deepak, at the spot, finding a person lying injured and unconscious and said injured having been taken to SGM Hospital by PCR Libra 9. PW1 Deepak also corroborated that unconscious injured was taken to Hospital by PCR and it was also corroborated by PW17 HCt. Karambir who, from SGM Hospital, had informed arrival of unknown person (brought by PCR Van) to the hospital and who was declared brought dead.
15. The said unconscious injured who was found lying on the footpath near West Enclave Bus Stand and who was taken to SGM Hospital where he was declared brought dead, was shown in photographs Ex PW1/B duly identified by PW1 Deepak. The fact that SC No.53566/2016 State v. Gaurav & Ors. Page No. 13 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC the said person was Kailash Chaudhary R/o H. No. F21, Mangolpuri, Delhi, was so proved by PW19 Ct. Ravinder who was handed photograph of the deceased by IO and who had taken the said photograph to PW2 Sh Arun Kumar, the President of RWA of F Block Mangolpuri, who had identified the deceased as Kailsh Chaudhary upon seeing the photograph of the deceased. PW8 Vikas son of the deceased also corroborated the same as after seeing the photographs of deceased he identified him as his father Kailash Chaudhary. Further PW8 Vikas and his brother also went to the mortuary and identified the body of said unknown deceased as that of their father Kailash Chaudhary vide identifying memo Ex PW8/A.
16. The fact that said Kalash Chaudhary did not die of natural death i.e. he was murdered, was proved by PW13 Dr. Rohit Kumar and PW14 Dr. Manoj Dhingra. PW13 Dr. Rohit proved the MLC Ex PW13/A vide which deceased Kailash Chaudhary (till then unidentified) was declared brought dead. PW14 Dr Manoj Dhingra proved the postmortem report Ex PW14/A whereby he opined that the cause of death was hemorrhagic shock due to chest injury. It was also opined that all injuries were antemortem in nature and injury No.1 was sufficient to cause death in ordinary course of nature and caused by sharp edged weapon. Injury No.1 is stab wound 2.8 X 1.6 cm X ?, wedge wound, horizontally placed on anterior aspect of left side of chest, 10 cm above to left nipple and to 5 cm below left clavical with one angle acute and other rounded clean cut margins. Thus, prosecution also successfully proved beyond reasonable doubt that deceased Kailash Chaudhary was murdered.
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17. Now the next question is who caused murder of above said deceased Kailash Chaudhary and whether he was murder in order of causing robbery. It is the case of the prosecution that accused persons along with their juvenile associate (who is facing trial before JJB) has caused the death of the abovenamed deceased. Case of the prosecution is based on eye witness PW9 Vipin @ Farro who as per prosecution, had witnessed the incident of robbery and murder of the deceased allegedly when he (PW9) was in a vacant land (to attend the call of the nature) nearby the place of incident and where from he had allegedly witnessed the execution of the incident by the accused persons in association with their juvenile coaccused.
18. Thus, the fact that PW9 Vipin @ Farro had witnessed the incident of robbery and murder of the deceased became the center of investigation and accused persons were allegedly identified and arrested with the help of PW9 Vipin @ Farro, an adolescent aged about 13 years then. But PW9 Vipin @ Farro did not support the case of the prosecution and categorically deposed that he did not know any thing about the incident of robbery or murder, nor had he seen any such incident. Even after seeing the photographs of the deceased he denied having any knowledge about seeing any incident related to the deceased. He further deposed that he was picked up by some police officials who had come in a Santro car and he was tortured. Though he did not know anything about the incident but he was maltreated by police officials, he deposed. He denied having been threatened or lured by anyone before recording his testimony.
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19. PW9 Vipin @ Farro was cross examined by Ld. APP for the State and the witness denied every suggestion given to him. PW9 Vipin however admitted that arrest memo Ex PW9/D1 and Ex PW9/D2 and personal search memos Ex PW9/E1 and Ex PW9/E2 bear his signature but deposed he was made to sign. Thus, even from his cross examination prosecution could not bring anything out of PW9 Vipin @ Farro which could support the case of the prosecution even remotely.
20. The next incriminating evidence with which prosecution intends to connect the accused person is the recovery of cloth bag (thaila) which deceased was allegedly carrying with, allegedly recovered at the instance of the accused persons. Judicial TIP for the identification of the said cloth bag was also conducted vide proceeding Ex PX1 and PW8 Vikas son of the deceased had correctly identified the said bag as belonging to his father and which his father was carrying at the time of incident. PW8 Vikas in his testimony deposed that his father left house around at 10:00 or 10:30 PM apart from other with one khaki color bag containing blanket etc. Thus, he deposed that the color of the bag which deceased had carried with him was of "Khaki" color whereas the bag which was produced in the court and which was allegedly recovered at the instance of the accused persons was of "white" color having expression MADHUSUDAN "SAI TEA STALL" DESI GHEE printed on it. The color discrepancy has not been explained by the prosecution. This bag even if believed to have been recovered at the instance of the accused persons cannot be SC No.53566/2016 State v. Gaurav & Ors. Page No. 16 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC conclusively said to belong to deceased person.
21. The next incriminating evidence with which prosecution intends to connect the accused person is the recovery of a blood stained knife Ex P13 from accused Gaurav. Accused Gaurav claimed that said knife was planted upon him. Witnesses to the recovery of knife from accused Gaurav are PW22 SI Jaspal Singh, PW24 HC Satender Kumar and PW26 IO Insp. Rajpal Singh. PW22 SI Jaspal Singh and PW26 Insp. Rajpal Singh in their respective testimonies deposed that one blood stained knife was recovered from accused. PW24 HC Satender Kumar deposed that a buttondar knife was recovered from the right side pocket of his wearing trouser. This blood knife was sent for forensic examination to FSL vide RC No. 211/21/16 Ex PW12/D but as per forensic report Ex PW25/A no DNA profile could be generated from blood stained knife and blood stained shirt of the accused Gaurav. It is also not clear whether the blood detected on knife Ex P13 and alleged shirt of the accused were of human or of animal. Be that as it may the fact of the matter is that the allegedly recovered knife Ex P13 and shirt of the accused do not stand connected to the incident of murder of the deceased Kailash Chaudhary. Even otherwise, it is not appealing to the conscience of the court that even after four day of incident accused would carry with himself blood stained knife which he allegedly used in the incident. Hence, the recovery of blood stained knife is also doubtful.
22. The next incriminating evidence with which prosecution intends to connect the accused person is the recovery from accused SC No.53566/2016 State v. Gaurav & Ors. Page No. 17 of 19 CNR No.DLNW010081852016 FIR No. 700/16 PS Mangol Puri U/s 302/394/397/411/34 IPC Kishan of a purse containing ESI Dispensary card of the Vikas son of the deceased. Again this recovery is doubtful for the reason that PW8 Vikas did not depose that his father was carrying his ESI card at the time of incident nor was the said ESI Card put to him when he appeared in the witness box. It is also doubtful for the reason that it cannot be believed that even after four day of the incident accused Kishan would carry the said ESI Dispensary card which would be of no use to him. Further purse was never put for identification before the son of the deceased so as to ascertain if his father since deceased was carrying such purse with him at the time of incident.
23. There is no other allegedly incriminating material on record with the help of which prosecution intends to connect the accused persons and above discussed material in no way connect the accused with the crime, hence it is hereby held that there is no evidence on record against the accused persons and thus prosecution has failed to prove its case against both the accused persons. Hence, both the accused persons are acquitted of all the offense they were charged in the present trial.
24. Both accused persons are in judicial custody since the day of their arrest, they be immediately released if not required in any other case.
25. In terms of Section 437A both accused persons are required to execute personal bond in the sum of Rs 20,000/ with one surety each of like amount.
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26. With the acquittal of the both the accused persons, present trial comes to an end and accordingly file of this case be consigned to Record Room after necessary compliance. Digitally signed HARISH by HARISH KUMAR KUMAR Date: 2019.12.03 15:26:02 +0530 (HARISH KUMAR) ADDL. SESSIONS JUDGE-03 Announced in open court NORTH WEST, ROHINI COURTS (Judgment contains 19 pages) DELHI/02.12.2019 SC No.53566/2016 State v. Gaurav & Ors. Page No. 19 of 19