Delhi District Court
State vs Accused on 10 September, 2007
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IN THE COURT OF SH. NARINDER KUMAR
ADDL. SESSIONS JUDGE FAST TRACK COURTS
ROHINI DELHI
SC No. 26/06 dated 17/01/2006
Date of Decision: 10th of September, 2007
State Versus Accused
(1) Rajesh Kumar
S/o Ram Mehar
R/o Village Nangli
Sakrawati, Najafgarh,
Delhi.
(2) Vinod Kumar
(not yet arrested)
S/o Attar Singh
Village Chhaprauli,
P.S. Chhaprauli,
Distt. Merrut, U.P.
FIR No.105/1997
PS Mangol Puri
U/s. 302 , 120-B IPC
JUDGMENT
First the Facts Rajesh Kumar accused has been facing trial for an offence U/s. 302 IPC read with section 120-B IPC on the allegations that prior to Diwali of year 1996 he entered into a conspiracy with one Vinod (not yet arrested), Rajender @ -:2:- Leelu and Baldev (since deceased) and in this respect he paid a sum of Rs.10,000/- to aforesaid Vinod and got committed murder by causing death of Kanwar Prakash (since deceased) who was found lying dead in a Matador No. DDL-5984 by the side of factory No. B-66, inside the park, in Industrial Area Mangol Puri.
Case of prosecution is that on 25.01.97 at 8.10 a.m, information was received at PS Mangol Puri that dead body of a male person was lying in a pool of blood, in a matador, by the side of factory No. B-66, inside the park, in Industrial Area Mangol Puri. Thereupon, DD No. 11B was recorded and Inspector R.P. Gautam reached the disclosed place, in a government vehicle. On reaching the aforesaid place, Inspector R.P. Gautam found SI C.L.Meena, Constable Ved Prakash and Umed Singh already present there. At the aforesaid place, one tempo No. DDL-5984 was found lying stationed in the park. Both the doors of the tempo were lying closed. On seeing from outside, a dead body was found lying inside the tempo in between the two seats. Head of the dead body was found leaning towards dashboard of the tempo. One black shawl was found tied around the neck of the dead body. Door of the tempo was opened. Papers lying in the -:3:- dashboard of the tempo were taken out. Documents pertaining to the tempo were found lying in addition to driving licence and voter I/Card which revealed that it was dead body of Kanwar Prakash of Nangli Sakrawati, as the photograph pasted on the driving licence and voter I/Card tallied with the face of the dead body. Tongue of the deceased was protruding out and blood was oozing out of head of the dead body. Inspector R.P. Gautam got sent message at the house of the deceased through SI C.L. Meena whereupon Rajbir, brother of Kanwar Prakash, reached there and identified that the dead body was of his brother.
Crime team was called to the spot. The crime team inspected the spot. Photographs were taken. No eye- witness was available. Inspector R.P. Gautam appended ruqqa to DD entry No. 11B, sent the same to the police station through Constable Ved Prakash and thereupon present case was got registered vide FIR. HC Omkar Singh delivered special report of the FIR to senior police officers and learned Metropolitan Magistrate, on 25.01.97. Kamal, a private photographer from Kamal Studio, was called to the spot. He took nine photographs of the spot and that of the dead body.
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On inspection of the vehicle, one military colour bag was found lying behind the driver seat. The bag was found containing registration papers of matador No. DDL- 5984. It was found containing original ration card, insurance papers etc. The tempo and the papers recovered from the military bag were seized. The tempo, one quarter bottle of Bagpiper Whiskey, one half bottle of Classic Whiskey, one stub of half biddi, five burnt matchsticks and one matchbox were also recovered. The bottles were turned into a parcel which were then sealed. Five burnt matchsticks and stub of biddi were kept in the matchbox, turned into a parcel and sealed. All these were then seized. At the spot, from the matador, flow of blood was seen going down towards the earth. Inspector R.P. Gautam lifted sample of blood lying inside the tempo and also from the ground. These were turned into separate small bottles and sealed. Sample soil and blood stained earth were also picked up, turned into a parcel, sealed and then seized. Rough site plan was also prepared. Inspector R.P. Gautam carried out inquest proceedings. During inquest, the dead body was identified by Shri Bhagwan, brother in law of the deceased and Rajbir Singh, brother of the deceased vide statements. The dead -:5:- body was then sent to Civil Hospital mortuary for autopsy.
Dr. K.L. Sharma conducted autopsy on the dead body of Kanwar Prakash and prepared report. In the opinion of the doctor, cause of death was Cranio cerebral injuries as a result of firearm injury. The injuries were antemortem in nature and were sufficient to cause death in ordinary course of nature immediately. It was a case of close range fire by the other party. Probable duration that elapsed between death and postmortem examination was three days. As further opined by the doctor, firearm used was rifled in nature. After autopsy, dead body of Kanwar Prakash was delivered to his brother Rajbir. From the mortuary, Constable Ved Prakash collected one sealed envelope, one sealed plastic bag and sample seal and deposited the same with duty officer, who in turn, deposited the same with the MHC(M).
Case of prosecution is that Raj Singh (PW-8) used to run a tea shop in Village Nangli Sakrawati. 3/4 tempos used to be parked near his shop. One of these tempos was of Kanwar Prakash (since deceased). Drivers of the tempos used to take tea at the tea stall. One day, a boy came there and hired the tempo of Kanwar Prakash for Mangolpuri saying that goods were to be taken from Village to -:6:- Mangol Puri, and that he (Kanwar Prakash) should reach with the tempo at the given place in half an hour. Saying so, the aforesaid boy went away and Kanwar Prakash took his tempo after half an hour for the given place.
On 05.11.94, case FIR No. 391/94, U/s. 307 IPC was registered at PS Najafgarh and Rajesh was the accused in that case. Subsequently, the offence was changed to 302 IPC. That case was regarding murder of Kanwar Prakash. Kanwar Prakash (since deceased) was the main witness in that case against Rajesh accused. In the year 1996, PW-6 Sukhbir Singh used to visit Jail No.4, Tihar, to have interview with his brother Parmanand. At the time of one of his visits to jail, his brother Parmanand handed over (to Sukhbir Singh) a letter and asked to deliver it to Rajesh accused at the office of Tehlan Property Dealer in village Nangli Sakrawati. The letter was given to Parmanand by Rajender @ Leelu inmate of jail. Sukhbir Singh, on the same day, on return from jail, delivered the above referred to letter to Rajesh accused, while accused was present in the Office of Tehlan Property Dealer alongwith 5/7 others.
On 28.01.97, Rajesh accused was interrogated by Inspector R.P. Gautam. Then formal search of Rajesh -:7:- accused was conducted. During search, accused was found in possession of the aforesaid letter. Inspector R.P. Gautam seized the letter in presence of SI Ashu Girhotra and Inspector Sanjay Drall.
The aforesaid letter was found to have been written by one Rajender @ Leelu, an under-trial prisoner in case FIR No. 1165/96 of PS Mangolpuri. As per statement of PW14, said Rajender @ Leelu was admitted to prison No.4 on 15.11.96 in the aforesaid case; then sent out of the prison on 27.11.96 for the purpose of police remand; then produced again to prison No. 4 on 29.11.96 and ultimately bailed out on 16.09.97. He was also involved in other two cases bearing FIR No. 483/90 pertaining to PS Hari Nagar and case FIR No. 269/96 pertaining to PS S.P. Badli. On 07.07.97, said Rajender @ Leelu was taken out from jail on production warrants for his production before the court at Delhi. In this respect, entries were made in jail record.
Rajesh accused was again called for interrogation on 29.01.97 and 01.02.97. Aforesaid Rajender @ Leelu was also interrogated inside jail by the Inspector after seeking permission from the court. Said Rajender @ Leelu disclosed to have written letter and to have sent the same to Rajesh. -:8:-
On 01.02.97, Rajesh accused was arrested. His personal search memo was prepared. He also made disclosure statement and in pursuance of his disclosure statement, Rajesh accused led the police party to Village Chhaproli in search of his co-accused Vinod Kumar. From there, all of them reached Bagpat in search of Habib @ Commando. Search of Vinod was also conducted in the area of Gokulpuri, but they were not traceable. Sh. Shyam Lal got issued process U/s. 82 and 83 CrPC as Vinod Kumar accused was not traceable.
On 06.02.97, SI Manohar Lal, Draughtsman, prepared scaled site plan depicting the place of occurrence, as pointed out by SI C.L. Meena. On 24.02.98, Constable Pawan Kumar collected from the Inspector, CFSL form and took the same to PS Mangolpuri, and in turn he collected six exhibits and sample seal from the police station and then deposited the same at CFSL, Malviya Nagar vide RC No. 464/21, without tampering with the same.
Reports dated 18.03.99 were received from CFSL.
On completion of investigation challan was put in court. Name of Vinod (accused) was shown in column no. 2 -:9:- of the report u/s 173 Cr.P.C. and police opted to submit supplementary challan against him as soon as he is arrested. Charge After compliance with provisions of section 207 Cr.P.C., case came to be committed to the Hon'ble Court of Session. Prima facie case having been made out against the accused, charge for an offence u/s 302 IPC read with section 120-B IPC was framed against the accused on 18/03/2005 by learned Predecessor Sh. M. R. Sethi, learned Additional Sessions Judge. Since accused pleaded not guilty and claimed trial, prosecution was called upon to lead evidence. Prosecution Evidence To prove its case, prosecution has examined following twenty two witnesses:
PW-5 Rajbir Singh is real brother of Kanwar Prakash (since deceased). He deposed about investigation part of prosecution story. It is also in his statement that two years prior to the present occurrence, his younger brother Surender Kumar was murdered and in that murder case Kanwar Prakash (since deceased) was one of the witnesses whereas Rajesh (accused) was the accused in that case.
PW-4 Balwan Singh and PW-8 Raj Singh stated -:10:- to have last seen Kanwar Prakash (since deceased) on 24/01/1997 in the company of another at Tempo Stand of Village Nangli Sakrawati, Delhi, have not supported the case of prosecution.
PW-6 Ishwar, one of the witnesses in the aforesaid murder case of Surender - brother of Kanwar Prakash (since deceased), has deposed about pendency of criminal case against Rajesh (accused) and that he (PW-6) was also joined in investigation of that case. However, he did not support the case of prosecution that any talks for compromise took place between the family of Rajesh (accused) and the family of Surender (since deceased) for compromise in aforesaid murder case of Surender.
PW-7 Sukhbir Singh has been examined to prove delivery of letter Ex.PW-7/A at the office of Tehlan Property Dealer in Village Nangli Sakrawati after the same was delivered to him by his brother Parmanand in the year 1997 at the time of his interview/meeting with him at Tihar Jail No.4.
PW-1 ASI Jeet Singh has been examined to prove recording of FIR of this case.
PW-3 Kamal Kumar is the photographer who took photographs of the spot and that of the dead body. -:11:-
PW-9 Inspector Sanjay Drall has deposed about recovery of a letter from the purse of Rajesh accused on 28/01/1997 in his presence and in presence of Inspector R. P. Gautam, the SHO and about seizure thereof vide memo Ex.PW-9/A. PW-10 SI Manohar Lal is the draughtsman who has been examined to prove scaled site plan Ex.PW-10/A of the place where the dead body was found lying.
Medical evidence is available in the statement of PW-16 Dr. K. L. Sharma.
PW-14 Sh. Tarsem Kumar the then Superintendent, Tihar Jail, has deposed about confinement of Rajender @ Leelu in prison no.4 in case FIR No. 1165/1996 of Police Station Mangol Puri and also about his involvement in case FIR No. 483/1990 and case FIR No. 269/1996 pertaining to Police Station Hari Nagar and Police Station Samay Pur Badli respectively in connection with which he was sent to court at Delhi on production warrants.
PW-11 SI Sudeswar Tiwari, PW-12 SI C. L. Meena, PW-13 Ct. Ved Prakash, PW-15 SI Ashu Girhotra, PW-17 Shyam Lal, the then Inspector in District Crime Cell, PW-18 Subhash Chand, PW-19 Head Constable Omkar -:12:- Singh, PW-20 ACP R. P. Gautam, PW-21 Constable Pawan Kumar and PW-22 Head Ct. Naresh Kumar have deposed about investigation part of prosecution story. Defence Plea When examined u/s 313 Cr.P.C. Rajesh accused denied all the incriminating circumstances appearing in evidence against him and pleaded false implication. However, accused did not lead any evidence in his defence.
Arguments heard. File perused.
Learned Addl. Public Prosecutor has argued that from the prosecution evidence it stands established that Rajesh (accused) was found in possession of a letter Ex.PW7/A. It has also been argued that from the contents of letter ExPW-7/A it stands duly established that the accused conspired with one Vinod (since deceased) and two others for murder of Kanwar Prakash (since deceased). It has also been argued that Kanwar Prakash (since deceased) was a witness in the case pertaining to the murder of his brother Surender in which Rajesh (accused) was facing trial; that as such motive for present crime also stand duly established and as such Rajesh accused is liable to convicted and sentenced.
On the other hand, learned defence counsel has -:13:- argued that prosecution version regarding recovery of letter Ex.PW-7/A from Rajesh accused is highly doubtful. As regards motive attributed to Rajesh (accused) to enter into conspiracy with others, learned defence counsel has submitted that Rajesh accused stands acquitted in the case of murder of Surender and as such it cannot be said that he was having any motive for the present crime. Learned defence counsel further pointed out that prosecution has failed to examine Rajender @ Leelu who is stated to have delivered letter Ex.PW-7/A to his brother at the time of his interview/meeting at Tihar Jail, for its delivery at the office of Tehlan Property in Village Nangli Sakrawati. Learned defence counsel further argued that prosecution has failed to establish that any such letter signed by Rajender @ Leelu came from Jail for being delivered to Rajesh accused or that Rajesh (accused) used to run any such Property Dealer Office in Village Nangli Sakrawati, and as such the accused is entitled to acquittal.
Case of prosecution is that dead body of Kanwar Prakash (since deceased) was found lying in a Matador near Factory No.B-66, inside park of Industrial Area near Mandi, within the jurisdiction of Police Station Mangol Puri. It is not -:14:- case of prosecution that anyone witnessed Kanwar Prakash being given beatings or being killed at the said place.
It is not case of prosecution that Rajesh (accused) did commit murder of Kanwar Prakash. Allegation levelled against Rajesh (accused) is that he entered into a conspiracy with three others namely Rajender @ Leelu, Vinod and Baldev for commission of murder of Kanwar Prakash (since deceased) and that a sum of Rs.10,000/- (ten thousand) was paid to Vinod (not yet arrested). Therefore, prosecution case is based on circumstantial evidence. In this regard reference may be made to decision in Sharad v. State of Maharashtra, AIR 1984 Supreme Court 1622, wherein it has been held as under:
The following conditions must be fulfilled before a case against an accused based on circumstance evidence can be said to be fully established;
(1) 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.
(2) the facts so established should be consistent -:15:- 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.
A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction.
It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.
Evidence collected from the place where the dead body -:16:- was lying:
PW-12 SI C. M. Meena and his staff reached near B-66 Factory, Industrial Area, Phase-I, Mangol Puri on 25/01/1997 on receipt of DD Entry Ex.PW-11/B. On reaching the spot, the SI found tempo no. DDL-5984 near the park. Dead body of Kanwar Prakash was found lying in sitting posture between the two seats of tempo. One black colour shawl was found lying tied around the next of the dead body. Documents pertaining to the tempo were recovered from the dashboard. Driving licence and voter I-Card of Kanwar Prakash were also recovered from the tempo. From a military colour bag lying at the back side of the driver's seat, one pass book, permit, insurance papers of car, diary and photocopy of ration card were seized vide memo Ex.PW-5/A. One empty match box, one stub of bidi, five burnt match sticks, two quarter bottles of Whisky were also seized from the tempo and seized vide memo Ex.PW-12/A. Blood was picked up from inside the tempo and also from under the tempo. Blood stained earth and control earth were also picked up from the spot. The tempo was seized.
PW-13 Ct. Ved Prakash has supported the -:17:- statement of PW-12 C.L. Meena. PW-20 R. P. Gautam has made statement in line with the statement of PW-12 C.L. Meena regarding recovery of aforesaid items from inside the tempo and from under the tempo and also about recovery of the dead body from inside the tempo.
PW-2 Kamal, the photographer has been examined to prove photographs of the scene of crime but no reliance can be placed on the photographs for want of negatives which could not be produced during trial.
As regards identification of the dead body, PW-5 Rajbir Singh, brother of Kanwar Prakash (since deceased) has been examined. He has fully supported the case of prosecution about his visit to the aforesaid place in Industrial Area Mangol Puri where dead body of his brother Kanwar Prakash was found lying in the Tempo. PW-5 also deposed in line with the statement of police officials regarding recovery of aforesaid items from inside the tempo and from under the tempo.
PW-2 Shri Bhagwan has also deposed to have identified the dead body of brother in law Kanwar Prakash. But according to him he identified the dead body at Police Station Mangol Puri and in this respect his statement -:18:- Ex.PW2/A was recorded.
Medical Evidence Medical evidence is available in the statement of PW-16 Dr. K. L. Sharma and in the shape of autopsy report Ex.PW-16/A, would reveal that dead body of Kanwar Prakash (since deceased) S/o Meer Singh was subjected to autopsy on 27/01/1997 at Aruna Asaf Ali Hospital, Delhi. Three external and three internal injuries were observed on the dead body. The injuries have been depicted in autopsy report Ex.PW-16/A. In the opinion of the doctor, cause of death was cranio cerebral injuries as a result of fire arm; that injuries were antemortem in nature and sufficient to cause death in ordinary course of nature immediately; the other party caused fire arm injury from the closed range. The doctor further opined that death occurred about three days prior to the autopsy.
From the medical evidence available on record, it stands established that Kanwar Prakash (since deceased) died because of fire arm injury when he was shot dead from the close range by the other party, about three days prior to the autopsy conducted on 27/01/1997.
It was on the basis of ruqqa Ex.PW-20/A sent -:19:- from the spot that present case was registered vide FIR Ex.PW-1/A. Recording of FIR on 25/01/1997 at 11:50 a.m. stands duly proved from the statement of PW-1 ASI Jeet Singh.
Last Seen Evidence
Case of prosecution evidence is that on
24/01/1997 PWs Balwan Singh and Raj Singh were present at the Tempo Stand of Village Nangli Sakrawati and both of them saw Kanwar Prakash taking away his tempo after it was requisitioned by one person.
While appearing in court as PW-4, Balwan Singh deposed that in the year 1997 he used to drive the tempo and that one day in the morning hours police came to the Tea Shop of the village and enquired something from him, which he could not remember. The witness denied to have made any statement before the police. Accordingly the witness was put leading questions by learned Addl. PP for State but nothing useful to the prosecution could be elicited from him. When so examined by learned Addl. PP, the witness displayed ignorance to have stated before the police that on 24/01/1997 he was present at the Tea Shop of Raj Singh, in the company of Kanwar Prakash. At that time a boy aged -:20:- 23/24 years covered with a shawl came there at the tempo stand and asked Kanwar Prakash to accompany him and Kanwar Prakash accompanied the same boy in his tempo. Thus PW4 has not supported the case of prosecution on the point of last seen evidence.
PW-8 Raj Singh is the tea vendor of village Nangli Sakrawati. According to him, in the year 1997, tempos used to be parked near his shop and one of the tempo was of Kanwar Prakash (since deceased). According to PW-8 one person came and hired the tempo of Kanwar Prakash for Mangol Puri as the goods were to be taken from the Village to Mangol Puri. According to PW-8, Kanwar Prakash then took away his tempo about half an hour after the departure of the aforesaid boy. The witness deposed that at that time Balawan Singh PW was sitting by his side at the Tea Shop. However, PW-8 could not identify the aforesaid boy. He was put leading questions by learned Addl. P. P. after seeking permission from the court, but nothing useful regarding identification of the aforesaid boy who hired the tempo could be elicited from him. In view of the statement of PW-8 it transpires that Kanwar Prakash left the Tea Shop only after the boy instructed him to take the tempo to his village so as to -:21:- fetch the goods to Mangol Puri. But there is nothing in the statement of PW-8 as to who was the boy who so instructed Kanwar Prakash. There is nothing on record to suggest that the said boy was sent by Rajesh (accused) present in court. Motive:
Case of prosecution is that Rajesh accused was facing trial in a case of murder of Surender, brother of Kanwar Prakash (Since deceased) and when talks for compromise in that case failed, Rajesh accused entered into a conspiracy and got Kanwar Prakash murdered. In this respect, prosecution has placed reliance on the statement of PW6 Rajbir Singh, real brother of Kanwar Prakash and Surender, both deceased. According to PW5, two years prior to the present occurrence, his younger brother Surender Kumar was murdered and that Kanwar Prakash was one of the witnesses in that murder case, whereas Rajesh (accused) was the accused.
PW5 denied that anyone threatened his brother Kanwar Prakash in his presence. The witness was put leading questions by learned Additional Public Prosecutor after seeking permission from the court and confronted with his previous statement Ex. PW5/C but he denied to have -:22:- stated before the police that Rajesh accused threatened his brother Kanwar Prakash with his murder like that of Surender Kumar in case he did not agree for compromise in the murder case. Thus, PW5 has not supported the case of prosecution on this aspect.
PW5 also did not support the case of prosecution on another aspect. When leading questions were put to the witness, he denied that persons from his village and relatives of the accused approached them for compromise in respect of murder of Surender Kumar or that any such meeting was held or they refused to compromise the matter.
Then, there is statement of PW6 Ishwar. He too deposed about pendency of criminal case against Rajesh accused in connection with murder of Surender, in the year 1994 and that he was joined in investigation of that case. But, he denied that before the murder of Surender, he and Kale ever took liquor in the company of Rajesh accused. He further denied that there were any differences between him (PW6) and Rajesh (accused). The witness displayed ignorance if any meeting between the family members of Rajesh accused and that of Surender (deceased) took place or that no compromise could take place in respect of the -:23:- murder case of Surender. The witness even denied to have made any statement before the police.
PW18 SI Subhash Chand has simply deposed about registration of case FIR No. 391/94 at PS Najafgarh against one Raj Kumar son of Ram Mehar. That case was in respect of murder of Surender. In his cross examination, PW18 admitted that as per note given on the index of the case diary annexed to the FIR, Rakesh was acquitted. This goes to show that the present accused accused of murder of Surender, stands acquitted in the aforesaid case. In view of the evidence led by the prosecution, it can safely be said that prosecution has failed to establish that Rajesh accused was inimical towards Kanwar Prakash or that he at any point of time, threatened Kanwar Prakash to death like his brother Surender.
Conspiracy between Rajesh accused and other for the murder of Kanwar Prakash:
Case of prosecution is that letter Ex. PW7/A was sent from Tihar Jail by one Rajender @ Leelu son of Balwan Singh, inmate of Jail No.4, Tihar, to Rajesh Tehlan of tehlan Property Dealer, Nangli Sakrawati, assuring him (Rajesh Tehlan) that the sender would do the job assigned to him (the -:24:- sender) and that he should pay a sum of Rs. 5000/- to the bearer. Rajbir, as he (the sender) was in dire need of money. In this respect, prosecution has placed reliance on the statement of PW14 Sh. Tarsem Kumar, the then Superintendent, Jail No.3, Tihar. According to PW14, Rajender @ Leelu son of Balwan Singh was inmate of Jail No.4 in case FIR No. 1165/96 of PS Mangolpuri, as per entry no. 11589 dated 15.11.96. Letter Ex. PW7/A is dated 18.12.96. It was for the prosecution to establish as to who wrote this letter Ex. PW7/A addressed to Rajesh Tehlan.
However, there is nothing on record to suggest as to who was the author of letter Ex. PW7/A, although it bears the name of the sender as Rajender @ Leelu son of Balwan.
The letter Ex. PW7/A is stated to have been brought from Jail by PW7 Sukhbir Singh. According to PW7, he used to visit Jail No. 4 to have interview/meeting with his brother Parmanand, inmate of the jail, in the year 1996. He further deposed that at the time of his one of the visits to jail, his brother handed over to him a letter and directed that same should be delivered to Rajesh @ Chichi, who would be available at the office of Tehlan Property Dealer, in Village Nangli Sakrawati. The witness further deposed that on return -:25:- from jail, on the same day, he delivered the said letter to one of the 5/7 persons, available at the office of property dealer.
It may be mentioned here that, as rightly argued by learned defence counsel, prosecution has not led any evidence to suggest that Rajesh accused was, at any point of time, running a property dealers office under the name and style "Tehlan Property Dealer" in Village Nangli Sakrawati. Prosecution has not got proved any jail record to establish that Parmanand, brother of PW7, was inmate of Jail No.4. Furthermore, it was for the prosecution to establish that Sukhbir Singh had interview with his brother Parmanand on such and such date. However, in this case, no jail record has been proved, in absence whereof, it cannot be said that PW7 Sukhbir Singh had any interview with his brother Parmanand at Jail No.4, Tihar. Interviews/meetings with inmates of jail take place under supervision. It is not believable that Parmanand could deliver any such letter to his brother Sukhbir Singh.
It is also significant to note that aforesaid Parmanand was never joined in the investigation for being cited as a witness.
As noticed above, as per contents of letter Ex. -:26:- PW7/A, bearer of the letter was one Rajbir, but prosecution has examined in court Sukhbir Singh (PW7). Prosecution has not led any evidence to explain that Sukhbir Singh was also known as Rajbir. In case the bearer of the letter was Rajbir, then prosecution was to explain that the letter changed hands from Rajbir to Sukhbir Singh for its delivery from the office of Tehlan Property Dealer. But, it is not the case of prosecution. Furthermore, PW7 Sukhbir Singh deposed that he delivered letter Ex. PW7/A to a person out of 5-7 persons present at the office of Tehlan Property Dealer. But, he did not raise any accusing finger against Rajesh accused, as according to him, the person, whom he delivered the letter, was not present in court i.e. on 14.07.2006. In his cross examination, PW7 admitted that letter Ex. PW7/A was not delivered by him to Rajesh accused present in court. He further deposed that on 14.07.2006, it was at the instructions of the police that he stated before the court about delivery of letter to Rajesh accused.
In view of the above discussed evidence, it can safely be said that prosecution has failed to establish as to who wrote letter Ex. PW7/A, as to by whom it was delivered at the office of Tehlan Property Dealer, and to whom. -:27:- Consequently, it cannot be said that letter Ex. PW7/A was delivered to Rajesh accused present in court. Recovery of letter Ex. PW7/A from Rajesh accused:
It is case of prosecution that Rajesh accused was interrogated on 28.01.97 and on his formal search, letter Ex. PW7/A was recovered from his pocket. Memo Ex. PW9/A was prepared in this respect. On this aspect, prosecution has examined PW20 ACP R.P. Gautam, PW9 Inspector Sanjay Drall and PW15 SI Ashu Girhotra.
A perusal of recovery memo Ex. PW9/A would reveal that letter Ex. PW7/A purports to have been seized in presence of SI S.K. Drall and SI Ashu Girhotra, on 28.01.97. Had any such incriminating material like letter Ex.PW7/A been recovered from Rajesh accused on 28.01.97, the investigating officer would have arrested Rajesh accused then and there, but admittedly he was not arrested on 28.01.97. He was arrested lateron i.e. on 01.02.97. There is no explanation from the prosecution for delay in arrest of Rajesh accused even after recovery of letter from his possession on 28.01.97. Furthermore, if a person like Rajesh (accused) is called to police station for interrogation in connection with a case, like the present one, it is not believable that such a person would -:28:- carry along some material connecting him with the case. The letter was being allegedly carried by Rajesh accused in a purse. Surprisingly, no such purse was seized by the police and no explanation for its non-seizure has been put forth. All this makes the case of prosecution regarding recovery of letter Ex. PW7/A from Rajesh accused on 28.01.97, highly doubtful.
Conclusion:
In view of the above discussed evidence, when prosecution has not led any evidence on record:
1) as to who committed murder of Kanwar Prakash on 25.01.97;
2) that Rajesh accused conspired with anyone in connection with murder of Kanwar Prakash;
3) delivery of letter Ex.PW7/A to Rajesh accused does not stand established;
4) recovery of letter Ex. PW7/A from Rajesh accused has been held to be doubtful;
5) there is no cogent and convincing evidence to establish motive against the accused to commit murder of Kanwar Prakash, this court has no option but to hold that -:29:- prosecution has failed to substantiate the accusation levelled against the accused. Consequently, Rajesh Kumar accused is hereby acquitted of the charge for which he has been facing trial.
File be consigned to record room U/s. 299 CrPC as one of the accused Vinod Kumar has been shown in column No. 2 of the report.
Announced in open court On: 10th of September, 2007 [NARINDER KUMAR] Additional Sessions Judge Fast Track Court: Rohini/Delhi