Delhi District Court
State vs . on 29 March, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.144/10
FIR NO. 455/07
U/S 302/34 IPC
PS S.P. Badli
Unique Case ID No. : 02404R0036402009
State
Vs.
1. Mukesh Kumar s/o Sher Singh
r/o Gali No.8, Bhatta Road,
Swaroop Nagar, Delhi.
2. Gautam (Proclaimed Offender)
Date when committed to the court of Sessions :29.09.2007
Date when case reserved for judgment : 19.03.2012
Judgment pronounced on : 29.03.2012
JUDGMENT:
1. The case of the prosecution in brief is that a DD No.16B was lodged at the PS on 06.06.2007 regarding a dead body lying near Khera Garhi School, Siraspur More, which was marked to SI Pooran Pant who along with Ct. Dharambir reached the spot and Inspr. Sanjeev Kumar of the PS was also directed to reach the spot and at SC No.144/10 Page 1/27 the spot, in the field near bushes, one male dead body of an unknown person aged about 25 years, smugged with blood, was found and blood was also scattered at the ground and the deceased was having injury marks with a knife like weapon on his neck and cut mark injuries were also there and the deceased could not be identified, who was also having injury marks at the fingers of his hand. The crime team was summoned at the spot and photographs of the dead body as well as of the spot were taken and from the said circumstances, after making an endorsement below the said DD, the Inspector got registered the FIR by sending a rukka to the PS.
2. During the investigation, the deceased was identified by one Sh. Dharmender @ Munna and Ranjan Kumar as Sanjay Kumar Singh s/o Ram Kripal Singh r/o Village Bada Park, Post Barh, District Patna and said Dharmender @ Munna informed that the deceased Sanjay was a junk dealer and was dealing in sale/purchase of plastic bottles at his (Dharmender's) factory at Khera Garhi, Delhi and the deceased was having a mobile phone number 9350750096 and it was further informed by said Dharmender that said business of junk dealing was started by him along with one Patel in the year February 2007 and deceased was having a good experience in the said field who used to deal in the empty bottles with different parties and the business was quite good and said deceased in the last days of April 2007 had gone to his native village for getting him married SC No.144/10 Page 2/27 and had informed to come back to Delhi on 05.05.2007 and due to the deceased leaving the said factory, the work of the factory came to stand still and was running in loss but said deceased Sanjay did not turn up till 8th/9th May, 2007 and then said Dharmender contacted the brother in law of the deceased namely Santosh Kumar Singh at Delhi on phone, it transpired that marriage of the deceased got postponed and which was to take place then on 13.05.2007 but said deceased Sanjay did not come back to Delhi up to 15.05.2007 and thereafter there was no contact with the deceased Sanjay even at his village and in these circumstances, said Dharmender engaged one Gautam at his said godown and employed him at a monthly salary of Rs.3,000/ for the said business but despite that the business could not take progress and that said deceased Sanjay came to Delhi on 28th/29th May, 2007 and joined the business and the business regained momentum and on this, the said accused Gautam (PO) was informed that he would not be paid any salary now and would give only commission as per his work and on this, said accused Gautam picked up a quarrel with deceased Sanjay on the allegation that due to Sanjay, he lost his salary and threatened Sanjay not to spare his life and thereafter he would receive his salary and that quarrel was got pacified by that Dharmender and thereafter also said accused Gautam threatened the deceased Sanjay.
3. As per statement of said Dharmender, on 05.06.2007, SC No.144/10 Page 3/27 deceased Sanjay had gone out of the godown for collection of payment from the parties and at that time, said accused Gautam was there who was asking to pay him Rs.3,000/ or 4,000/ as his father was ill at his native village, to which he refused but after persuasion, said accused Gautam was given Rs.2,000/ asking him to come back soon to the said factory from his village and accordingly said accused Gautam left the godown at about 5.30 or 6 p.m and his (Dharmender's) partner Patel also left the godown but said Dharmender remained at the godown as the loaded vehicles with the goods were to be received and at about 11 p.m, he contacted the deceased Sanjay on his mobile but same was found switched off but said Sanjay did not return to the factory for the whole night and thereafter on 06.06.2007, in the morning, said Dharmender had also gone to his house when he heard that near V.S. School, at Khera Garhi, dead body of someone was lying and said Dharmender reached the said spot and identified the said dead body as that of deceased Sanjay Kumar who was having knife injuries at his neck and said Dharmender immediately accompanied the police to the house of accused Gautam at Gali No.8, Swaroop Nagar, where the premises was found locked and on inquiry, it transpired that the family of accused Gautam and one Mukesh, who were residing at the said premises, had escaped in the night after locking the premises and said Dharmender had a suspicion over said accused SC No.144/10 Page 4/27 Gautam in killing the deceased Sanjay and said Ranjan Kumar, who also identified the dead body of the deceased, also gave the same version and he had also seen said accused Gautam and deceased Sanjay at the cycle rickshaw of one Mukesh at about 11.15 p.m on the previous night.
4. During further investigation, the autopsy on the dead body of the deceased was got conducted and statement of the house owner namely Ram Singh Rawat of H.No.8 at Swaroop Nagar, where Mukesh was residing as tenant, was recorded and call details from M/s Reliance of the mobile of the deceased by the number 9350750096 were obtained from which it transpired that the said mobile phone was in operation even after the death of the deceased and from the said mobile, phone calls were made at mobile phone number 9319589071 on 09.06.2007 and 11.06.2007 and according to record of the mobile company, the said mobile phone was allotted to one Ram Khilari r/o Gali No.5, Hanuman Puri, Aligarh, UP and thereafter the accused Gautam was searched at his native place Village Chandosi, District Muradabad where his brother was found residing, who informed that said mobile phone number 9319589071 belonged to one Ms. Shiv Lata, an associate of Mukesh Kumar, who was residing at Sarai Rehman in front of Petrol Pump at main G.T. Road, Aligarh, UP and thereafter the police team reached District Aligarh and arrested accused Mukesh Kumar at a secret information SC No.144/10 Page 5/27 on 22.06.2007, who made his disclosure statement, as per which said accused Gautam was residing with him at Gali No.8, Bhatta Road, Swaroop Nagar, Delhi, and accused Gautam asked Mukesh to kill the deceased Sanjay because due to him he was shunted out of the said business of junk dealing and on 05.06.2007, accused Gautam came to Mukesh when he was on his rickshaw standing at Bus Stand Swaroop Nagar, G.T. Karnal Road bypass, and took him to the said house and informed Mukesh that deceased Sanjay would come to collect payment from the parties which may be Rs.60,000/ or Rs.70,000/ and thereafter they both, joined together to kill the deceased and deceased Sanjay was given a phone call to reach at Swaroop Nagar bus stand and to have drink and chicken with them and they purchased three quarter bottles of liquor and two chicken and thereafter deceased Sanjay reached there at about 10.30 or 10.45 p.m and at that time deceased was making a phone to someone and as his phone call finished, accused Gautam took the mobile of Sanjay and switched it off and kept with him and thereafter Mukesh was driving the rickshaw and said accused Gautam and deceased Sanjay were the pillion riders and were consuming liquor and the chicken and when the deceased became over drunk, the rickshaw was taken to Khera Garhi, Siraspur Road, where they met with one boy by the name of Ranjan and thereafter they three reached near V.S. School which was a lonely and deserted place, rickshaw was SC No.144/10 Page 6/27 stopped and Mukesh caught hold of the neck of the deceased and accused Gautam gagged his mouth and got the deceased lay on the ground and dragged him to a field behind the bushes and Mukesh, with his yellow colour Gamcha (cotton towel), gagged the mouth of the deceased and said accused Gautam gave indiscreet knife blows at the neck of deceased Sanjay due to which he died and thereafter they came to the said rented house at Swaroop Nagar, changed their clothes and informed the neighbours that the father of accused Gautam was ill and the whole family was going to see his ailing father at Chandosi and thereafter said accused Gautam, from the said phone of the deceased Sanjay on 09.06.2007 and 11.06.2007, made telephone calls at phone no. 9319589071 which was belonging to the sister in law of Mukesh Kumar residing at Aligarh and thereafter from the said in laws house of accused Mukesh, he got recovered the said mobile phone of his sister in law and thereafter the police as well as the accused came to Delhi where accused Mukesh led the police party to said house at Gali No.8, Swaroop Nagar, and got recovered one shirt which he was wearing at the time of the incident and yellow Gamcha (cotton towel) bloodstained, which were seized and the exhibits were sent to FSL and subsequently the FSL result was placed on the file, the said accused Gautam could not be arrested, against whom a supplementary charge sheet declaring him as Proclaimed Offender was filed on 05.10.2011, nor the mobile SC No.144/10 Page 7/27 phone of the deceased could be recovered. Thereafter the charge sheet was filed against the accused.
5. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 15.11.2007, framed charge against the accused u/s 302/34 IPC, to which he pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has produced as many as 19 witnesses, relevant of which have been discussed below.
7. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.
8. I have heard Ld. APP for the state, Ms. Dhaneshwari, Amicus Curie Advocate for the accused and perused the record.
9. PW1 Kundan Kumar is the brother of the deceased who identified the dead body of the deceased on 07.06.2007 at BJRM hospital vide his statement Ex.PW1/A and thereafter he deposed regarding the said business of the deceased along with Dharmender @ Munna and said facts of accused Gautam employed during the absence of the deceased from Delhi who had gone for his marriage at the said native village at Patna, Bihar and threat extended by SC No.144/10 Page 8/27 accused Gautam to his brother for the said loss of salary and elimination from the employment by Dharmender @ Munna, as informed to him by the deceased on telephone 2/3 days prior to the incident and later on he came to know that his brother, the deceased, had been killed by Mukesh and Gautam. In his cross examination on behalf of the accused, he admitted that he used to live separately and work separately from his deceased brother and there was a distance of two hours travelling in between his house and the house of the deceased. He admitted that his deceased brother had not made any complaint against accused Gautam. He admitted that he had never seen the place of work of the deceased. He admitted that his brother never told anybody by the name of Mukesh as the person threatening his brother.
10. PW2 Santosh Kumar Singh is the brother in law of the deceased who identified the dead body of the deceased vide his statement Ex.PW2/A and again he narrated the same point of quarrel between accused Gautam and the deceased and accused Gautam threatening him for the said reason and he further deposed that later on he came to know that said accused Gautam used to live with his two sisters namely Neeraj and Malti and one person Mukesh with him and accused present in court had murdered his brother in law. In his cross examination on behalf of the accused, he admitted that he did not report to the police with regard to the conduct of accused SC No.144/10 Page 9/27 Gautam against the deceased. He admitted that he had not seen the accused murdering the deceased. He has no proof, as per his answer, to show that deceased was working with Dharmender and Patel. He answered that he had seen the place of work where deceased was working but he did not remember the number of plot and he was working in a plot of 100 yards at Peera Garhi.
11. PW10 is the landlord of the house in Gali No.8, Bhatta Road, Swaroop Nagar, Delhi, where said accused Gautam and accused Mukesh were residing along with their family and he deposed that the said house was let out by his father to accused Mukesh present in court, at the monthly rent of Rs.1,000/ and he did not know any person by the name of Gautam and he was declared hostile by the prosecution and was cross examined by Ld. Addl. PP wherein he denied to have stated to the police that one person named Gautam was residing with Mukesh at the said premises who used to share rent with accused Mukesh or that on 07.06.2007 in the morning at about 4.30 or 5 a.m, when he went to open the Tea shop, he saw accused Gautam and Mukesh with his family leaving with luggage from the said tenanted premises or that he inquired from Mukesh, who informed that his father is suffering from ailment and he was going to Chandosi and both were in disturbed condition and under some fear and they left hurriedly. All the said facts were confronted with his previous statement Ex.PW10/A which were found recorded SC No.144/10 Page 10/27 in the same but the witness denied to have made any such statement and in his cross examination on behalf of the accused, he could not produce any document to show that his father was the owner of the premises let out to Mukesh.
12. PW11 Rahul was the informant to the PCR at phone no.100 regarding the dead body found in the said field at the said place by his mobile phone number 9968243826.
13. PW13 Dharmender Kumar @ Munna deposed that in the year 2007, he was running his junk godown at Village Khera Garhi, Delhi, and one Sanjay had joined the same in the month of March 2007 and said Sanjay used to collect the money from different markets and said Sanjay was having reliance mobile phone bearing number 9350750096 in those days and that in the last week of April 2007, said Sanjay had gone to his native village for his marriage but did not return up to 10th May, 2007 and that he made contact to his brother in law and from him, he came to know that marriage of Sanjay had been postponed for 13.05.2007 and he waited for Sanjay up to 20.05.2007 and in the absence of Sanjay, his business suffered loss and one Gautam, earlier known to him, who was dealing in same business in the market, was attached with the said junk business in place of Sanjay and thereafter said Sanjay came to his godown on 28th /29th May, 2007 and started his duty as earlier and he SC No.144/10 Page 11/27 directed his worker Gautam to collect the waste plastic bottles from the market and he would be paid commission for the same and would not be paid any salary, due to which relation between Sanjay and accused Gautam became strained and that on 01.06.2007, a quarrel had taken place between Sanjay and accused Gautam at the said godown on the issue of Sanjay again joining the said business and not getting salary by said accused Gautam and accused Gautam had threatened to kill Sanjay twice or thrice. He further deposed that on 05.06.2007, in the evening time, he was present at his godown and accused Gautam demanded a sum of Rs.3,000/ or Rs.4,000/ as his father was under treatment at his native village and that firstly he refused but on repeated requests, he gave a sum of Rs.2,000/ to accused Gautam and he went to his residence at Delhi and did not return to the godown and that he could identify accused Gautam, if produced before him. He further testified that on the intervening night between 5th and 6th June, 2007, he made several calls on the mobile of said Sanjay but it was switched off and that he remained at his godown for the whole night receiving the waste material but Sanjay did not return from the market after collecting the payment and that on 06.06.2007, in the morning at about 9 a.m, when he was coming from his house to his said godown and reached near Hazari Lal School, it came to his notice that one male dead body was lying near V.S. School, Khera Kalan, Siraspur Road and SC No.144/10 Page 12/27 he went to the said spot and noticed the dead body as that of Sanjay and he narrated same facts to the police and informed the brother in law of the deceased Sanjay on phone about the incident, who came at the spot and thereafter he led the police official at the residence of accused Gautam in the area of Swaroop Nagar, Delhi and the premises of accused Gautam and his friend was found locked and on inquiry, it transpired that they had left and vacated the room in the early morning and ran away along with their goods and that he thinks that accused Gautam is involved in the murder of Sanjay. On looking at the seizure memo Ex.PW13/A, the witness stated that it bore his signatures at point A and that he did not produce any certificate to the police regarding employment of Sanjay, accused Gautam and Ranjan as his employees at the said godown at the relevant time and at this stage, after looking at the written certificate Ex.PW13/B, the witness submitted that it was given by him to the police and bore his signatures at point A. He further deposed that he was having a reliance mobile phone bearing no. 9312393046 by which he made telephonic call to Sanjay on the fateful night.
14. In his cross examination on behalf of the accused, PW13 replied that he did not know any Mukesh. He replied that he did not maintain any register about the attendance of his workers or in connection with paying salary to them. He could not tell colour, shape and size of the mobile phone of deceased. He replied that his SC No.144/10 Page 13/27 statement was recorded at the PS and he could not give the exact number of papers which were signed by him and that he had visited the PS about 15 times in connection with present case. He did not know if mobile phone of deceased Sanjay was in his name or in the name of his friend or relative.
15. PW18 Sh. Madhu Baluse is the Nodal Officer of M/s Reliance Communication who proved the phone call details of mobile phone no. 9319589071 for the period w.e.f. 01.06.2007 to 17.06.2007 and the said phone was in the name of customer namely Ram Khilari, Gali No.5, Hanuman Puri, Aligarh and he gave the requisite certificate under the law as Ex.PW18/A, call details as Ex.PW18/B running into 9 pages and the customer details as Ex.PW18/C.
16. PW3 is a formal witness who took the exhibits from the autopsy surgeon of BJRM hospital and gave to the IO vide memo Ex.PW3/A. PW4 SI Pooran Pant deposed about reaching the spot on 06.06.2007 vide DD No.16B and description of the dead body found there of the deceased and seizure of exhibits from the spot and said Dharmender and Ranjan taking them to the rented house of accused Mukesh and accused Gautam at Swaroop Nagar and he identified the wrist watch of the deceased as Ex.P1, two tickets, one page of diary, one slip of STD call found on the dead body of the deceased as Ex.P2, Ex.P3 and Ex.P4, pair of black shoes, pair of SC No.144/10 Page 14/27 socks, bloodstained shirt, belt, underwear, pant and bloodstained vest belonging to the deceased as Ex.P5 to Ex.P11. PW5 Dr. K. Goyal of BJRM hospital was the autopsy surgeon who deposed regarding the autopsy conducted by him vide his report Ex.PW5/A and opined that injury no.1 and 11, as mentioned in the autopsy report, were sufficient to cause death in the ordinary course of nature collectively or individually and that time since death was about 36/37 hours and he preserved clothes, blood, viscera and blood sample of the deceased and handed over the same to police and cause of death was hemorrhagic shock as a result of injuries to neck vessels and mode of death was homicidal. PW6 was the duty officer who proved the copy of FIR as Ex.PW6/A. PW7 was the special messenger who took the copies of FIR to different senior officers. PW8 SI Matadin was the In charge of the crime team who reached the spot and prepared his report Ex.PW8/A. PW9 HC Chander Mohan was the MHC(M) who deposed regarding deposit and sending the exhibits to FSL etc. PW12 Ct. Narender took the dead body of the deceased to said hospital and is also a witness of the seizure of exhibits given by the autopsy surgeon. PW14 SI Manohar Lal prepared the scaled site plan proved as Ex.PW14/A. PW15 ASI Ramesh Chander was the photographer of the crime team who proved the print photographs as Ex.PW15/A1 to A8 and negatives thereof as Ex.PW15/B1 to B8. PW16 HC Dharambir SC No.144/10 Page 15/27 accompanied PW4 at the spot and he took the rukka to the PS from the IO for registration of the FIR.
17. PW17 and PW19 are the witnesses of arrest of accused and recovery witnesses. PW19 Inspr. Sanjeev Kumar being the IO initially deposed in his examination in chief with regard to reaching the spot on 06.06.2007 and proved the DD as Ex.PW19/A containing in the rukka and making his endorsement on Ex.PW19/A and sending the same for the registration of FIR, reaching of Dharmender and Ranjan Kumar at the spot who identified the dead body and thereafter Dharmender taking them to the said house of accused Gautam and autopsy conducted on the dead body of the deceased, preparation of rough site plan Ex.PW19/B, recording the statement of the landlord of the house where accused was residing on rent and visiting Chandosi where accused Mukesh could not be found and thereafter he deposed that on 22.06.2007, accused Mukesh was apprehended at G.T. Road, Sarai Rehman, Aligarh and was arrested vide memos Ex.PW17/A and Ex.PW17/B and his disclosure statement Ex.PW17/C was recorded and thereafter accused Mukesh got recovered mobile phone from his in laws house at Sarai Rehman, Aligarh on which he used to talk with his sister in law Shiv Lata to inquire about the police activities against him and the said phone was sealed and seized vide memo Ex.PW17/D and thereafter accused led them to the spot and pointed out the same vide SC No.144/10 Page 16/27 memo Ex.PW17/E and thereafter accused led them to the tenanted premises at Swaroop Nagar, Delhi, from where he got recovered one rickshaw parked outside the said premises which was seized vide memo Ex.PW17/G and also got recovered one bloodstained shirt and Gamcha (cotton towel) which were seized vide memo Ex.PW17/F and he proved the departure entry outside Delhi in the DD no.79B Ex.PW19/E and arrival entry vide DD No.87B Ex.PW19/F and thereafter he deposed regarding accused Mukesh remaining untraced and sending the exhibits to FSL and he tendered the results as Ex.PX, Ex.PY and Ex.PZ and scaled site plan was got prepared by him. He further deposed regarding obtaining employment certificate of accused Gautam as well as Ranjan Kumar in the said factory and also moved an application to the nodal officer for obtaining call details of the mobile phone which is Ex.PW19/G and phone call record was seized which is Ex.PW18/B and thereafter he identified the exhibits and case property recovered at the spot from the deceased and further identified one shirt and Gamcha recovered at the instance of accused Mukesh collectively as Ex.P13 and mobile phone as Ex.P12 and rickshaw as Ex.P18.
18. In his cross examination on behalf of accused, PW19 replied that mobile phone of Sanjay, the deceased, was having some number in its memory showing that the same was used after his death and as per disclosure statement of accused said mobile was used by the SC No.144/10 Page 17/27 accused after the death which was corroborated by the call detail records. He did not recollect as to who accompanied them from the local police at District Aligarh but it may be police patrolling gypsy of the area. He did not stop any vehicle to ask the persons to join the proceedings with regard to arrest of the accused.
19. PW17 HC Jagbir Singh deposed with regard to arrest and recovery on the same lines on which PW19 has deposed and identified the recovered items. However, in his cross examination on behalf of the accused, he replied that mobile phone was got recovered by the accused from a room of his in laws house but he did not recollect as to from what place the phone was got recovered from that room as he was standing outside the room. He did not recollect if he signed the seizure memo of the mobile phone or not. He could not tell the colour of the gamcha and the shirt which were kept under tripaul and some clothes.
20. Admittedly there is no eye witness of the murder of the deceased and case is resting on circumstantial evidence. Needless to repeat the law in this regard that "When a case rests on upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;SC No.144/10 Page 18/27
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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;
(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.
(5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
(6) onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea."
21. The reference for the said proposition may be given of the judgments of the Hon'ble Supreme Court as AIR 1954 SC 621, AIR 1984 SC 1622, 2008 (3) RCR (Crl.) page 563, 2008(1) RCR (Crl.) 870, 2009 (1) RCR (Crl.) 251.
22. The first circumstance relied upon by the prosecution is the motive of the offence. Although the motive is not the essential ingredient of the offence of the murder, but in case of circumstantial evidence, it gains importance. The alleged motive was a quarrel and SC No.144/10 Page 19/27 a jealousy of associate accused Gautam against the deceased as accused Gautam was apprehending elimination of his salary and job of the said business of junk dealer from the said factory/godown of Dharmender, the PW13 and as such, accused Gautam wanted to kill the deceased so as to clear his way for his said employment. Although this motive is not directly related to the present accused Mukesh because the allegation of the prosecution is that he assisted in actually killing the deceased, but even if, with the object of Section 34 IPC, if this motive is to be read against the present accused also, can it be said that the said motive has been established beyond reasonable doubt. If the said motive is to be read against the said associate accused Gautam, it can also be read against the PW13 Dharmender who was in a position to kill two birds with one stone. It was Dharmender, the PW13, who was to pay the salary of accused Gautam and who refused to pay the salary to accused Gautam after returning of the deceased Sanjay from his native village and again joining the business. It was PW13 who asked the said accused Gautam to receive only commission on the basis of supply of goods made to the said business. It is admitted case of the PW13 that it was after return of Sanjay, the deceased, that business again came on its track. Was PW13 intending or interested in eliminating both the said quarreling parties i.e. the deceased Sanjay and the said accused Gautam thinking that if one is killed, the other would be behind the SC No.144/10 Page 20/27 bars in the offence of murder of the said person who is killed. Has he become the witness for the police so that the needle of suspicion may not point out towards him as the preparatory of the crime. The possibility of the same cannot be ruled out in such type of cases based upon circumstantial evidence particularly admitted position by PW13 that deceased Sanjay was having a quite good and long experience in the said business and it was he, who was contacting the different parties and even collecting the payments from the parties related to the business and thus it can safely be inferred that even deceased was having a potential of becoming his rival in the said business. His conduct otherwise is not according to ordinary human nature. He claimed to have pacified both the parties when they were quarreling over the said issue and said accused Gautam was threatening the deceased but even after accused Gautam threatening the deceased twice or thrice, thereafter also, PW13 neither reported the matter to the police against the conduct of accused Gautam nor advised the deceased to report the matter to the police. He even did not know as to whether the alleged mobile phone of the deceased was in his name or in the name of some relative of the deceased. PW13 was admittedly not maintaining any record showing the name of his employees or salary disbursed to them. As per case of the prosecution, as mentioned in the charge sheet, PW13 even invested Rs.70,000/ to Rs.80,000/ after taking SC No.144/10 Page 21/27 the same on credit to cover up the loss of business which could not be revived and on the alleged date of incident, deceased would collect Rs.60,000/ to Rs.70,000/ as per disclosure statement of the accused. If this was the turnover of the business, it was necessary to maintain at least a kuchha record even for the sake of memory but no such record has been proved on record nor PW13 claimed to be in possession of any such record.
23. Further, to prove the alleged motive, PW1, the brother of the deceased and PW3, the brother in law of the deceased have been produced in the witness box and a bare reading of their deposition go to show that they are witnesses of hearsay. Similarly, they also did not report the matter to the police nor advised the deceased to do the same after receiving the alleged threat from the said accused Gautam. PW1 even did not know as to where the place of work of his deceased brother was situated. PW3 although claimed to have seen the place of work of the deceased, could only give a vague description of the same but no specific address was given by him. Both PW1 and PW2, even did not depose about any mobile possessed by the deceased much less the number of the same. In the said circumstances, it is difficult to believe the motive against the present accused and it cannot be said that the prosecution has proved the motive against the said absconding accused Gautam for alleged murder, beyond reasonable doubt.
SC No.144/10 Page 22/27
24. Second circumstance put forth by the prosecution against the accused was that he was last seen driving his rickshaw in the company of the deceased Sanjay and absconding accused Gautam, both being pillion riders, by one Ranjan who also identified the dead body of the deceased at the spot on 06.06.2007. The said Ranjan not produced in the witness box despite opportunities given to the prosecution and as such, the theory of "last seen" is washed away altogether.
25. Third circumstance marshaled by the prosecution against the accused is that he was residing with the said absconding accused Gautam in gali No.8, Swaroop Nagar, Delhi, on rent and both fled away in the early hours of morning after the incident. PW10 Ram Singh Rawat, alleged landlord of the said rented premises, turned hostile with respect to three aspects. He was neither the landlord nor the owner, as per his deposition, because it was his father who let out the premises to accused Mukesh present in court who resided there for 8/9 months prior to the incident. Secondly, he wiped out the presence of said absconding accused Gautam living in the same premises with accused Mukesh. Thirdly, he washed away the circumstance of both the said accused having fled away just after the incident and thus contradicted the stand of PW13, who allegedly took the police to the said premises when both the accused were allegedly found missing. Thus, the prosecution has again miserably SC No.144/10 Page 23/27 failed to establish even this circumstance beyond reasonable doubt.
26. Coming to the circumstance of arrest and recoveries effected from the accused. It is admitted case of the IO PW19 that no public witness was joined at the time of arrest of the accused and recovery of the mobile phone of the sister in law of the accused at his instance at District Aligarh. As per PW18, the Nodal Officer of the mobile company, the said mobile phone no. 9319589071 was allotted to one Ram Khilari. As per case of the prosecution, it was the mobile used by the sister in law of the accused namely Ms. Shiv Lata. Neither Ram Khilar nor Ms. Shiv Lata have been produced in the witness box to prove as to whom the said mobile phone really belonged or as to how Ms. Shiv Lata came into possession of the said mobile, if it was allotted to said Ram Khilari by the mobile phone company. The other end of the circumstance i.e. the mobile phone of the deceased Sanjay, was admittedly not recovered, though the call details of mobile phone of deceased have been placed on record but not proved according to law nor PW18 deposed anything about the same although in the customers' details Ex.PW18/C the phone number 9350750096 was mentioned in the name of deceased as per record of mobile phone company. The call details of the said mobile phone no. 9319589071 Ex.PW18/B, although established that on the said mobile phone two calls were received on 09.06.2007 at 20 hours 5 minutes 38 seconds and 21 hours 23 minutes 1 second from mobile SC No.144/10 Page 24/27 phone number 9350750096 allegedly of the deceased Sanjay and on 11.06.2007, again these two mobile were in contact with each other at 14 hours 12 minutes and 19 seconds. We do not know as to what talks took place on said two dates on the said two mobiles and between whom. It is all disclosure statement of accused Mukesh that it was accused Gautam who talked to his sister in law on the said two dates to know about the police activities, which is inadmissible in evidence. Even otherwise, it does not appeal to the common sense as to why accused Gautam would use the phone of deceased when he is accused of murdering the deceased, so as to give a ready made proof or clue to the police. Thus, not only the arrest of the accused in the manner and from the place as alleged by the prosecution is doubtful, but recovery of the said mobile phone and the alleged calls made on 09.06.2007 and 11.06.2007 from the mobile phone of the deceased at the phone of Ms. Shiv Lata do not come to the help of prosecution as a circumstance that it was accused Gautam who was using the phone of the deceased even after his death, beyond reasonable doubt.
27. Further circumstance of the recovery of sky blue shirt, which the accused Mukesh was wearing at the time of incident, and the Gumcha of yellow colour, stated to have been used for gagging the mouth of the deceased at the time of his murder and became bloodstained, but the bloodstains on the said two clothes could not SC No.144/10 Page 25/27 be matched with the blood of the deceased which was of Group B and although it has been mentioned that the said two clothes were having human blood, but no grouping of the blood could be established as per FSL result Ex.PY of the Biology Division coupled with other weaknesses of the recovery under the law that no public person was joined at the time of the recovery or that the place from where the said clothes were recovered was in the exclusive possession of the accused only and was not accessible to any other person and that such type of clothes are easily available in the market and in the absence of any trial of the shirt conducted on the person of the accused that it could fit the body of the accused, the said recoveries could not be linked to the offence or the accused. Similarly, the recovery of the rickshaw from an open place, allegedly outside the said rented premises at Swaroop Nagar, do not come to the help of the prosecution so as to say that said recoveries have been connected with the accused or the offence beyond reasonable doubt. Moreover, PW Ranjan, who last saw the two accused and the deceased on rickshaw, was not made available to identify the rickshaw. No other circumstance has been pressed into service by the prosecution against the present accused. Admittedly even the weapon of offence has not been recovered yet which is another missing link of the case.
28. In view of my said discussion, the prosecution has miserably SC No.144/10 Page 26/27 failed to establish each and every link of the chain of circumstantial evidence beyond reasonable doubt much less a complete and unbreakable chain pointing out towards the guilt of the accused exclusively and ruling out the possibility of any other person having killed the deceased. Hence, the benefit of doubt is extended to the accused who is acquitted of the charge u/s 302/34 IPC. He be set at liberty forthwith, if not wanted in any other case. The evidence recorded in the case shall be read u/s 299 Cr.PC against accused Gautam who is PO. The file be consigned to the Record Room. (Announced in the open court on 29.03.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.144/10 Page 27/27