Delhi District Court
State vs . on 15 February, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 18/13
FIR No. : 143/10
P.S. : Shahbad Dairy
U/s : 302/201 IPC
Date of registration : 15.01.2011
Reserved for Judgment on: 07.02.2013
Judgment Announced on : 15.02.2013
State
Vs.
Dinesh
S/o. Sh. Bhurat Bhagat
R/o. 93 to 98 Area, B Block,
Gali No. 1, Agar Nagar,
Prem Nagar PartIII,
Delhi.
JUDGMENT
1. In brief the case of the prosecution is that on 19.07.10 at 3.10 p.m. duty officer of PS Shahbad Dairy received an information vide DD No. 20A through telephone from Anmol S/o. Sh. Nagreshwar that a dead body is lying near CNG Petrol Pump, Sector28, Rohini, Delhi. The said DD was entrusted to SI Sessions Case No. : 18/13 Page 1 of 18 2 Mahender Pratap who along with HC Surgian and Ct. Jitender left for the spot i.e. Open Space, side of 80 Feet Road, Sector29, Rohini where under the pieces of old tyres and heap of thread, one white colour plastic bag (Bora) in which legs of male were visible, was found.
2. SHO and Ct. Sandeep also reached at the spot and SHO inspected the spot. SI Mahender Pratap with the help of knife opened the bag, the dead body of a young boy was taken out. The deceased was having light colour shirt, white baniyan, black colour jeans, black belt and black underwear. The dead body was having a copper Kada and black colour thread in its right hand and on the forearm words "AK Meena Kumari Manu Kumari"
were engraved. The head of the dead body was smudged with some blood. It was a male body around 2530 years of age. No eye witness was found. The dead body could not be identified from the passersby. The crime team was called at the spot. The spot was inspected and photographed by the crime team.
3. F.I.R. bearing No. 143/10 was registered at PS Shahbad Dairy and the investigation was carried out by the police. Accused was arrested. After completion of investigation final report u/s 173 Cr.P.C. was prepared and was filed in the court of ld. Metropolitan Magistrate who after completing all the formalities Sessions Case No. : 18/13 Page 2 of 18 3 committed the case to the court of sessions for trial.
4. On 14.02.2011, a charge u/s 302/201/34 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. In order to prove the guilt of the accused, the prosecution examined as many as 24 witnesses.
6. PW1 Balbir Singh was the photographer. He deposed that on 19.07.10 on the request of Inspector Dinesh Kumar reached to the spot i.e. 80 Foota Road, Sector29, Rohini and took photographs Ex.PW1/A1 to Ex.PW1/A12 from his digital camera of the spot as well as the dead body of a lady and handed over the same to Inspector Dinesh Kumar.
7. PW2 Anmol was the first informant who initially noticed the dead body at the spot. He deposed that on 19.07.2010 at about 3.00 p.m., he was going towards Metro Vihar via 80 Foota Road from his house and on the way in Sector29, Rohini, he noticed a gunny bag filled with some waste tyre material lying by the side of the road and noticed the feet of a human being peeping from the said gunny bag. He stopped the car and noticed a dead body wrapped inside the said gunny bag. He gave information on telephone at PS Shahbad Dairy. He further deposed that Inspector Dinesh Kumar, SHO, PS Shahbad Dairy Sessions Case No. : 18/13 Page 3 of 18 4 reached at the spot along with the staff. The gunny bag was opened and it was found to contain a dead body of male person.
8. PW3 Ajay Rathore, PW 4 Ramu Prajapati and PW 18 Vipin are the material witnesses and I will discuss their testimony in the later part of the judgment.
9. PW5 Ct. Jitender accompanied SI Mahender Pratap who received DD No. 20A to the spot. He deposed that he along with HC Surgyan and SI Mahender Pratap reached to the spot i.e. open place on 80 feet road by the side of road in Sector29, Rohini where they found one plastic gunny bag containing rubber scrap and the feet of a human being/male person were visible from inside he rubber scrap. Inspector Dinesh Kumar along with his staff including Ct. Sandeep reached to the spot and inspected the spot. SI Mahender Pratap had cut open the gunny bag with the help of knife and after cutting the gunny bag the dead body of young boy was taken out, blood was there on the body of the deceased and the deceased was wearing light green colour shirt, white baniyan, black colour jeans, black colour belt. PW5 further deposed that on the right hand of the deceased A.K. Meena Kumari in Hindii and Manu Kumari in English was engraved. SHO tried to get identified the dead body from the nearby public persons but the body could not be identified at that time. The Sessions Case No. : 18/13 Page 4 of 18 5 crime team was called at the spot by the SHO and crime team inspected the spot. Photographer took photographs of the dead body and the spot.
10. PW5 got the FIR registered of the present case. After registration of FIR, he handed over the copy of FIR and original rukka to Inspector Dinesh Kumar at the spot. He further deposed that IO called the private photographer who took the photographs of the dead body and IO took into possession the white gunny bag in which the dead body was found by sealing the in pulanda with the seal of DK. The dead body was sent to BJRM Hospital Mortuary.
11. PW6 HC Surgyan accompanied SI Mahender Pratap to the spot and he deposed on the same lines as deposed by PW5.
12. PW7 Ct. Ram Kishore had deposited the exhibits in FSL after taking them from MHC (M) vide RC No. 85, 86/21/10 and handed over the receiving issued by FSL to MHC (M).
13. PW8 Ct. Kamal Singh was the photographer of Mobile Crime Team. He deposed that on 19.07.10, he along the Incharge reached at the spot and took photographs of the dead body of a male person as well as of gunny bags containing rubber scrap etc. vide Ex.PW8/A1 to Ex.PW8/A12 and negatives thereof Ex.PW8/B1 to Ex.PW8/B12.
Sessions Case No. : 18/13 Page 5 of 18 6
14. PW9 HC Vinod Kumar was the member of Special Team, Prashant Vihar which arrested the accused. He deposed that on 03.09.10 at about 1.00 p.m., one secret informer met SI Praveen Kumar and informed that accused who was wanted in the present case will reached at Rithala Metro Station at about 2.00/2.30 p.m. to meet his known. SI Praveen called PW9, HC Pavitran and Ct. Sanjay and briefed them about secret information. He further deposed that SI Praveen verified the secret information from PS Shahbad Dairy on telephone and a raiding party was formed under the supervision of SI Praveen Kumar on the oral direction of ACP Crime Branch. They left the office for Rithala Metro Station with informer at about 1.40 p.m. They reached at Rithala Metro Station and took position at a small distance from Metro Station by the side of road with informer. At about 2.45 p.m. accused came there and on the pointing out of informer, he was apprehended. Accused was interrogated and was arrested u/s. 41 Cr.P.C. vide memo Ex.PW9/A. His personal search was carried out vide memo Ex.PW9/B and accused made his disclosure statement Ex.PW9/C regarding his involvement in the present case.
15. PW9 further deposed that accused led them to 80 Foota Road at a vacant place on the corner of the road, Sector29, Sessions Case No. : 18/13 Page 6 of 18 7 Rohini where he had thrown the dead body of deceased while sealing in a gunny bag filled with rubber scrap vide pointing out memo Ex.PW9/D. He further deposed that accused was brought thereafter to their office at Prashant Vihar and SI Parveen prepared the kalandra u/s. 41 (1) (d) Cr.P.C. and SI Parveen informed to IO of the present case regarding arrest of accused at PS Shahbad Dairy.
16. PW10 Ct. Anand Singh was the Malkhana Munshi at PS Shahbad Dairy. He deposed that he had handed over the exhibits to Ct. Ram Kishore to deposit the same at FSL Delhi vide RC No. 85/21/10 and 86/21/10.
17. PW11 HC Yashvir Rathi was the duty officer. He recorded the FIR Ex.PW11/A on receiving the rukka sent by SI Mahender Pratap through Ct. Jitender.
18. PW12 Ct. Sukhwinder deposed that on 19.07.10, he removed the dead body of deceased to BJRM Hospital Mortuary, Jahangir Puri. After the postmortem the doctor handed over two sealed pulandas and one sample seal with the seal of FMT BJRM Hospital, New Delhi to SI Mahender Pratap which were taken into possession vide memo Ex.PW12/A. PW12 further deposed that on 05.09.10, he along with Inspector Rakesh Rawat and Ct. Anil were present at police station where accused was interrogated Sessions Case No. : 18/13 Page 7 of 18 8 and he made supplementary statement to IO. Thereafter at about 12.30 p.m. accused led them to H.No. 93, 98 Agar Nagar, B Block, Prem NagarIII, Delhi and he led them to inside the room of his house at ground floor and pointed out the place and got recovered one iron rod from the corner of his room. He further deposed that IO took measurement of iron rod and sealed with the seal of RR and same were taken into possession and two persons namely Ajay Rathore and Ramu Prajapati were with them at that time.
19. PW13 Ct. Surender joined the investigation with IO Inspector Rakesh Rawat. Accused made disclosure statement Ex.PW13/A and he was taken to BSA Hospital and got medically examined. He further deposed that accused led them to the place where he had thrown the dead body of deceased in gunny bag filled with rubber and scrap. IO prepared the pointing out memo.
20. PW14 SI Parveen Kumar received the secret information of accused regarding his coming at Rithala Metro Station. He deposed on the same lines as deposed by PW9 HC Vinod and proved on record kalandra u/s. 41.1 Cr.P.C. Ex.PW14/A, DD No. 6 regarding secret information Ex.PW14/B, DD No. 7 regarding departure to Metro Station Rithala Ex.PW14/C and DD No. 11 Sessions Case No. : 18/13 Page 8 of 18 9 regarding arrival entry Ex.PW14/D.
21. PW15 SI Manohar Lal is the draftsman. He took marginal notes and measurement of the spot. He also took marginal notes and measurements of the place where murder has taken place i.e H.No. 9398, B Block, Gali No. 1, Agar Nagar (Meetha Pani), Prem NagarI. On the basis of of marginal notes and measurements, he prepared scaled site plan Ex.PW15/A and Ex.PW15/B and handed over the same to IO.
22. PW16 Ct. Anil is the witness of supplementary disclosure statement and recovery of iron rod. He deposed on the same lines as deposed by PW12 Ct. Surender.
23. PW17 Dr. V.K. Jha conducted the postmortem on the body of deceased and prepared his detailed report Ex.PW17/A.
24. PW19 Ms. Sunita Suman, Senior Scientific Officer conducted the serological and biological examination in FSL, Rohini. She proved both the reports as Ex.PW19/A and Ex.PW19/B.
25. PW20 HC Ishwar Dutt is the MHC (M) at PS Shahbad Dairy. He deposed regarding depositing of case property in the Malkhana and sending the exhibits to FSL. He proved the entries in register no. 19 Ex.PW20/A, Ex.PW20/B, Ex.PW20/C. He also proved RC No.85/21/10 and 86/21/10 Ex.PW20/D and Sessions Case No. : 18/13 Page 9 of 18 10 Ex.PW20/E and acknowledgments of FSL Ex.PW20/F and Ex.PW20/G.
26. PW21 SI Mahender Pratap initially received DD No. 20A regarding lying a dead body at the spot and he assisted Inspector Dinesh Kumar and Inspector Rakesh Rawat in the investigation. He deposed on the same lines as deposed by PW5 Ct. Jitender, PW6 HC Surgian, PW13 Ct. Surender and PW16 Ct. Anil. PW 21 narrated about the sequence of investigation and he proved on record DD No. 20A Ex.PW21/A, rukka Ex.PW21/B, site plan prepared at his instance Ex.PW21/C, seizure memo of plastic katta in which dead body was found Ex.PW21/D, application for post mortem Ex.PW21/E, receipt of cremation issued by Sub Registrar, Sarai Kale Khan Electric Crematorium Ex.PW21/F, DD No. 24B regarding arrest of accused by Crime Branch Ex.PW21/G, arrest memo of accused Ex.PW21/H, pointing out memo of place of recovery of dead body Ex.PW21/J and supplementary disclosure statement Ex.PW21/K, pointing out memo of place of murder Ex.PW21/L.
27. PW22 SI Surender Singh is the Incharge of Mobile Crime Team. He deposed that on 19.07.2010, he received a telephonic call from the Control Room and he along with other crime team staff went to spot i.e. 80 Feet Road, Near CNG Pump, Opposite Sessions Case No. : 18/13 Page 10 of 18 11 Sector29, Rohini. He inspected the spot and prepared the crime team report Ex.PW22/A.
28. PW23 Inspector (Investigation) Rakesh Rawat deposed on the lines of PW13 and PW21 and he proved on record site plan of the house of accused Ex.PW23/A and photocopy of Election Card of deceased Ashok given by his brother in law Ex.PW23/B.
29. PW24 Inspector Dinesh Kumar was the SHO, who reached at the place of recovery of dead body after SI Mahender Pratap. He proved inquest proceedings Ex.PW24/A.
30. After the closing of the prosecution evidence statement of accused u/s 313 Cr.P.C was recorded and incriminating evidence was put to him. Accused denied the same and stated that he is innocent and has been falsely implicated. No evidence in defence was led by the accused.
31. I have heard Ld. Addl. PP for the state and the counsel for the accused and have also gone through the records of the case.
32. It is submitted by the Ld. Addl. PP that on the basis of the evidence recorded and the material on record accused be convicted.
33. On the other hand, it is submitted by the Ld. defence Sessions Case No. : 18/13 Page 11 of 18 12 counsel that accused has been falsely implicated. It is further submitted by the Ld defence counsel that the material witnesses have not supported the case of the prosecution and the recovery is planted and there is not even an iota of evidence against the accused to warrant his conviction.
34. PW 2 is Anmol who had noticed the feet of a human being peeping from a gunny bag. He had given the information on telephone to P.S. Shahabad Dairy. He deposed that in his presence the gunny bag was opened and it was found to contain a male dead body.
35. The other relevant witness is PW 3 Ajay Rathore. He has deposed that accused Dinesh is known to him and he is in the business of removing thread from old tyres in the godown underneath his house. He further deposed that accused was brought by the police and the police obtained his signatures on some blank papers. He further deposed that nothing was got recovered by accused Dinesh in his presence from his house or any other place.
36. He further deposed that accused had not got recovered any iron rod in his presence. He denied having knowledge of any person by the name of Ashok (since deceased). He further denied that he had never seen deceased working with accused Sessions Case No. : 18/13 Page 12 of 18 13 Dinesh. He further deposed that he knows nothing about any person by the name of Manoj.
37. This witness was shown the photograph of deceased Ashok from the judicial file and he failed to identify the deceased as one of the boy working with accused Dinesh at the time of the incident. He admitted his signatures on Ex. PW 3/A which is the recovery memo of iron rod.
38. This witness was declared hostile and cross examined by the Ld. APP for the state. In his cross examination he denied the contents of his statement Ex. PW 3/A when confronted by the Ld. APP at the time of cross examination.
39. PW 4 is Ramu Prajapati. He has also not supported the case of the prosecution. He deposed that accused Dinesh was in the business of removing thread from old tyres. He further deposed that he does not know whether any person by the name of Ashok Kumar (since deceased) worked with the accused. He deposed that accused Dinesh was not arrested in his presence nor he got recovered any weapon. He deposed that his signatures were obtained by the police on some papers. He admitted that Ex. PW 3/A which is the recovery memo of iron rod bears his signatures at point B.
40. He was cross examined by the Ld. APP but nothing Sessions Case No. : 18/13 Page 13 of 18 14 material could be extracted from his cross examination.
41. In his cross examination by the Ld defence counsel he stated it to be as correct that Ex. PW 3/A was not written when he signed the same at point B.
42. PW 18 is Vippin. He deposed that on 392010, he received a call from the police regarding the death of Ashok. He came to Delhi on 5910 and jointed the investigation with the police of PS Shahabad Dairy. He was shown the photograph of deceased and he identified him as his Jeeja Ashok. He further deposed that the E.S.I Card brought by him from Bihar belonged to deceased Ashok Kumar. He further deposed that he had seen accused Dinesh as he visited the house of his Jeeja three times prior to the incident. He further deposed that accused Dinesh was the same person with whom his Jeeja was working. He further deposed that he had identified accused Dinesh at the P.S. When his statement was recorded.
43. In his cross examination by the Ld defence counsel he stated that his statement was recorded on 592010. He stated in the cross examination that he has no proof of his Jeeja Ashok in the employment of accused Dinessh. He further stated that he has no proof of any factory of accused Dinesh. He further stated that he does not know the name of factory of accused Dinesh. Sessions Case No. : 18/13 Page 14 of 18 15 He denied the suggestion that the deceased was not working with accused Dinesh. He further admitted it to be as correct that he has no residential proof or ESI card of Delhi of his Jeeja. He denied the suggestion that his Jeeja Ashok since deceased was not working in Delhi.
44. According to the case of the prosecution, the deceased was working in the thread removing factory of the accused. In order to prove this fact prosecution has examined three witnesses namely PW 3 Ajay Rathore PW 4 Ramu Prajapati and PW 18 Vippin.
45. PW 3 and PW 4 are the residents of the same area where the accused was having his factory and the deceased used to work. They both have not supported the case of the prosecution and were declared hostile. They were cross examined by the Ld. APP but nothing material could be extracted from their cross examination. They both have categorically denied having seen deceased Ashok working with accused Dinesh in his factory.
46. Another material witness is PW 18. He is the brotherin law of the deceased and he has deposed that Ashok his Jeeja was working with the accused. He has deposed that he has seen accused thrice when he visited the house of his Jeeja three Sessions Case No. : 18/13 Page 15 of 18 16 times prior to the incident. He could not produce any proof regarding the employment of his Jeeja Ashok with accused Dinesh. He even could not produce proof of any factory of accused Dinesh. He even could not tell the name of the factory of accused Dinesh. He even failed to produce any document showing the residential proof of deceased in Delhi. It is not understood why accused Dinesh would visit the deceased. PW 18 has even failed to mention the residential address of his Jeeja Ashok where he visited thrice, and the period during which he visited him.
47. It is clear from the testimony of these three witnesses that the prosecution has failed to prove the residential address of deceased and also the fact that deceased Ashok was in the employment of accused Dinesh.
48. According to the prosecution, the accused pointed out the place of recovery of the dead body. The pointing out memo is Ex. PW 21/J dated 4092010 but according to PW 2 he has already pointed out the dead body on 19072010 and the police had the knowledge about the dead body on the said very date. Accused was arrested on 492010 and it was after that he pointed out the place of dead body which becomes irrelevant as the police already had the knowledge about the dead body on Sessions Case No. : 18/13 Page 16 of 18 17 19072010.
49. Recovery of Iron Rod : According to the prosecution the accused got recovered the iron rod which was allegedly used in t he commission of the crime. The recovery memo if iron rod is Ex. PW 23/A. According to the prosecution the accused got recovered the said rod form his house and the same was lying underneath the stair case.
50. The witnesses to the recovery of iron rod are PW Ramu Prajapati and Ajay Rathod. They both have not supported the case of the prosecution. They have categorically stated that their signatures were obtained on blank papers.
51. PW 21 SI Mahender Pratap has deposed that the accused got recovered the iron rod in his presence but the recovery memo of iron rod does not bear his signatures. PW 16 is constable Anil. He has also deposed that the accused got recovered the iron rod from the corner of the stair case but his signatures also does not bear on the recovery memo of the iron rod. The IO has failed to prepare the sketch of the iron rod which could have thrown some light on the shape and size of the said rod. From the evidence and the circumstances discussed hereinabove the recovery of the iron rod becomes doubtful.
52. The case is based on circumstantial evidence and the Sessions Case No. : 18/13 Page 17 of 18 18 principles of law governing proof of a criminal charge by circumstantial evidence need hardly any reiteration. From the several decisions of the Supreme Court available on the issue the said principles can be summed up by stating that not only the prosecution must prove and establish the incriminating circumstances against the accused beyond all reasonable doubt but the said circumstances must give rise to only one conclusion to the exclusion of all others, namely, that it is accused and nobody else who had committed the crime. This is not so in this case for the reasons discussed hereinabove. The accused is, therefore, acquitted. File be consigned to Record Room. (Announced in the open Court on 15.02.2013) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE02 , OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 18/13 Page 18 of 18 19 Sessions Case No. : 18/13 Page 19 of 18