Delhi District Court
State vs . 1. Khilender, on 6 June, 2012
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 157/08.
Unique Case ID No.02405R1030822005.
State Vs. 1. Khilender,
S/o Sh. Raghubir Singh,
R/o Dichau Kalan,
New Delhi.
2. Smt. Vidya Devi,
D/o Sh. Raghubir Singh,
R/o Dichau Kalan,
New Delhi.
3. Ravinder Kumar,
S/o Sh. Daya Nand,
R/o Village Ishapur,
New Delhi.
4. Ramesh Chand, (P.O.)
S/o Sh. Kishan Lal,
R/o Village Dosha,
New Delhi.
5. Smt. Kamlesh Devi,
D/o Sh. Raghubir Singh,
R/o Village & P.O. Dichau Kalan,
Najafgarh,
New Delhi.
6. Smt. Suresh Devi,
W/o Sh. Raghubir Singh,
R/o Village & P.O. Dichau Kalan,
Najafgarh,
New Delhi.
Date of Institution : 18.10.2005.
SC No.157/08. Page 1 of 39
FIR No.214 dated 24.9.2004.
U/s. 365/302/201/120B IPC.
P.S. Kapashera.
Date of reserving judgment/Order : 21.5.2012.
Date of pronouncement : 06.6.2012.
JUDGMENT
1. The abovenamed accused had been charge-sheeted by the police for having committed the offences punishable u/s. 365/302/201/120B IPC. It is alleged that the accused, in pursuance to a well planned conspiracy, kidnapped and killed one Rajbir, son of Sh. Balbir Singh.
2. Accused Kamlesh is the wife of Rajbir, accused Suresh Devi is his mother-in-law, accused Khilender is his brother-in-law, accused Vidya Devi is his sister-in-law.
3. As per the prosecution case, Rajbir Singh had gone missing on 17.7.2004 and could not be found thereafter. He had left his house saying that he is going to the house of his in-laws i.e. the house of accused as his wife had already gone there pursuant to a minor triffle. It is further alleged that in fact, Rajbir Singh had been kidnapped and later murdered by the accused. The defence of the accused, however, is that the prosecution has failed to establish conclusively that Rajbir has, in fact, been killed. It is put forth on behalf of accused that Rajbir Singh may be still alive and his brother and father have concocted a false story of his kidnapping and murder in order to usurp Rajbir's share in the ancestral property and other movable assets. It is, thus, seen that SC No.157/08. Page 2 of 39 the factum of death or murder of Rajbir Singh in itself is in issue.
4. The information about the disappearance of Rajbir Singh from his house was conveyed, as per the contents of the Charge Sheet to P.S. Kapashera by his brother Rambir Singh on 02.9.2009, which was recorded as DD No.20A, whose contents are as under :
"At 3 p.m. - it is recorded that the complainant appeared in the police station and stated that my mother Rajbir, s/o Balbir Singh, had strained relations with his wife, on account of which his wife had gone to her parental house. My brother left his house saying that he is going to his in-laws house. He had gone on 17.7.2004 at about 3 p.m. on his Bajaj Chetak scooter bearing No.DL-4S-AJ-9659 and has not returned till date. We have searched for him but could not find him."
5. On the basis of aforesaid information, the police searched for Rajbir Singh intensely but could not find him. On 21.9.2004 Rajbir's father Sh. Balbir Singh got his statement recorded as under :
"I usually remain at home. I have six sons and a daughter. Rajbir is my third son. He had got married to Kamlesh, daughter of Sh. Raghbir, resident of Dichau, in the year 1994. After two years of marriage, Rajbir separated from us and a division has taken place. Rajbir is missing alongwith his scooter bearing registration no.DL-4S-9659 since 17.7.2004, the information about which has already been given to the police. Rajbir was being harassed and pressurised by his wife Kamlesh, brother-in-law Khilender and his other in-laws. I have grave suspicion that Rajbir has been kidnapped by the aforesaid persons. His scooter has been found in suspicious circumstances in SC No.157/08. Page 3 of 39 Chandni Chowk area. FIR may be registered and legal action be taken."
6. On the basis of the aforesaid statement of Sh. Balbir Singh, an FIR bearing No.214/2004 was registered in P.S. Kapashera u/s.365 IPC and the investigation was handed over to SI Surjeet Singh. The IO SI Surjeet Singh made search for Rajbir but in vain. The scooter no.DL-4S-AJ-9659 of Rajbir had been found abandoned in the area of P.S. Kotwali, Daryaganj, and the same was seized by the IO in this case.
7. As per further case of the prosecution, a dead body of a male was found near canal in village Mundela in the area of P.S. Jaffarpur Kalan on 19.9.2004 and an FIR u/s.136/04, u/s.302/201 IPC, had been registered in this regard. During the course of investigation of this case, Rambir, the brother of the deceased suspected the aforesaid dead body to be of Rajbir on the basis of colour of the underwear worn by the deceased. The IO in case FIR no.136/04 Sh. Nand Kumar got conducted the DNA fingerprint tests of the dead body and as per the report submitted by the Centre for DNA fingerprints and diagnostics, the dead body came to be identified as that of missing Rajbir, son of Balbir. Consequently, the investigation of FIR No.136/04, P.S. Jaffarpur Kalan, was transferred to P.S. Kapashera and was clubbed with the investigation of the present case. Thereafter, the investigation of the case was entrusted to the then SHO, P.S. Kapashera, Inspector Ramesh Chander.
8. On 24.7.2005 the IO Inspector Ramesh Chander got SC No.157/08. Page 4 of 39 information from P.S. Delhi Cantt that an accused namely Khilender in FIR No.247/2005, u/s.25/54/59 Arms Act has been arrested and he has disclosed his involvement in the present case. Accordingly, Inspector Ramesh Chander alongwith HC Babu Lal reached P.S. Delhi Cantt. interrogated accused Khilender and arrested him in the present case. His disclosure statement was recorded. Thereafter, IO arrested accused Ravinder, Ramesh Chander and Vidya Devi. He also seized a Maruti car bearing registration no.DL-9CD-0831 which had been used in the commission of offence. Accused Suresh and accused Kamlesh Devi could not be arrested at that juncture. Later on, accused Kamlesh Devi was found bed ridden in her house on 14.11.05 and it came to be known that a murderous attack was launched on her on 05.7.2005 by accused Khilender and his mother accused Suresh Devi by running a vehicle over her, regarding which FIR No.444 u/s.279/338 IPC had been registered in P.S. Najafgarh and the offence had thereafter been converted to Section 307 IPC. It also came to be known that accused Kamlesh had got registered an FIR No.243/2004, u/s.307/506/328/379/34 IPC against her in-laws in P.S. Kapashera.
9. It is further case of the prosecution that the IO Inspector Ramesh Chander also recorded the statement of the witness named Raj Singh, who had last seen Rajbir on 17.7.2004 in village Dichau Kalan. It is further alleged that accused Vidya Devi has made an extra judicial confession about the involvement of all the accused in the present case to one Sh. Deepak Sharma. Taking into account the aforesaid facts and circumstances, which came out from the investigation till that time, the Investigating SC No.157/08. Page 5 of 39 Officer laid charge sheet before the concerned Magistrate against accused Khilender, Vidya Devi, Ravinder and Ramesh Chander.
10. Here it may be noted that the accused Ramesh Chander had been appearing in the case till January, 2008 and thereafter, abruptly stopped appearing before the court. Ultimately, he was declared proclaimed offender vide order dated 31.3.2008.
11. Accused Suresh Devi and accused Kamlesh had not been arrested by the time the aforesaid Charge Sheet was filed. The police came to know that accused Suresh Devi has been absconding from her house since after the arrest of accused Khilender, Ramesh and Ravinder. Accordingly, she was declared proclaimed offender by the court vide order dated 14.11.2005. As noted herein-above, accused Kamlesh was bed ridden on account of injury inflicted upon her by accused Khilender and her mother accused Suresh Devi. She came to be arrested in this case on 31.3.2006. Later on, accused Suresh Devi also came to be arrested on 25.4.2006. Pursuant to the arrest of accused Kamlesh and Suresh Devi, a supplementary Charge Sheet was prepared and laid before the concerned Magistrate in the month of July, 2006.
12. Upon committal of the case to the court of sessions, following charges were framed against accused Khilender, Vidya Devi, Ravinder and Ramesh Chand on 14.12.2005 :
"That on or before 19.9.2004 you all alongwith your co-accused Smt. Suresh Devi (PO) and Kamlesh Devi (not arrested so far) hatched a conspiracy to commit SC No.157/08. Page 6 of 39 an illegal act i.e. to commit the murder of Rajbir and in pursuance of the said agreement/criminal conspiracy at the house of accused Khilender S/o Raghuvir Singh at village Dichau Kalan, New Delhi, you committed the murder of Rajbir by causing his death and you all thereby committed an offence punishable U/s.120B IPC and within cognizance.
Secondly, on the night intervening 17/18.9.2004 exact time now known, you all alongwith your co- accused Smt. Suresh Devi (PO) and Kamlesh Devi (not arrested so far) kidnapped Rajbir, at the house of accused Khilender S/o Raghubir Singh before his murder with intention to commit his murder and you all thereby committed an offence U/s.365 r/w section 120B IPC and within my cognizance.
Thirdly, on the night intervening 17/18.9.2004, you all in pursuance of the said conspiracy hatched by you all mentioned above, you all committed murder of Rajbir Singh by causing his death at Dichau Kalan at the house of accused Khilender S/o Sh. Raghubir Singh and the dead body of deceased Rajbir was found and recovered from canal near Toll Tax barrier village Bundelkhurd near Dada Kheda Mandir on 19.9.2004 and you thereby committed an offence U/s. 302 IPC r/w section 120B IPC and within my cognizance.
Fourthly, after committing the murder of Rajbir on the abovementioned date, time and place in pursuance of the said conspiracy, thrown the dead body of deceased Rajbir Singh into the canal after putting the same in a gunny bag and tied the same and you caused the evidence connected with the murder to be disappeared or destroyed knowingly with intention to screen yourself from legal punishment and you thereby committed an offence U/s.201 IPC r/w section 120B IPC and within my cognizance."
13. Following charges were framed against accused SC No.157/08. Page 7 of 39 Kamlesh and accused Suresh Devi on 04.1.2007 :
"That on or before 19.9.2004 you both alongwith your co-accused Khiledner S/o Raghubir Singh, Vidya Devi D/o Raghubir Singh, Ravinder Kumar S/o Daya Nand and Ramesh Chand S/o Kishan Lal hatched a conspiracy to commit an illegal act i.e. to commit the murder of Rajbir and in the pursuance of the said agreement/ criminal conspiracy at the house of accused Khildender S/o Raghubir Singh at Village Dichau Kalan, New Delhi, you committed murder of Rajbir by causing his death and you all thereby committed an offence punishable U/s.120B IPC within the cognizance of this court.
Secondly, on the intervening night of 17/18.9.2004 both of you alongwith your co-accused Khilender S/o Raghubir Singh, Vidya Devi D/o Raghubir Singh, Ravinder Kumar S/o Daya Nand and Ramesh Chand S/o Kishan Lal, in pursuance of the above mentioned conspiracy hatched by you all, you all committed murder of Rajbir Singh by causing his death at Dichau Kalan at the house of accused Khilender S/o Raghubir Singh and the dead body of deceased Rajbir was found and recovered from canal near Toll Tax Barrier village Bundela Khurd near Dada Kheda Mandir on 19.9.2004 and you thus thereby committed an offence punishable U/s.302 IPC read with Section 120B IPC and within the cognizance of this court.
Thirdly, after committing the murder of Rajbir on the above mentioned date, time and place in pursuance of above mentioned conspiracy thrown the dead body of Rajbir Singh into the canal after putting the same in a gunny bag which was tied also and you caused the evidence connected with the murder to be disappeared or destroyed knowingly with intention to screen yourselves from legal punishment and you thereby committed an offence punishable U/s.201 IPC read with Section 120B IPC within the cognizance of this court."SC No.157/08. Page 8 of 39
14. All the accused claimed not guilty to the aforesaid charges and hence trial was commenced. The prosecution has examined following witnesses to prove the guilt of the accused :
(i) PW1 Raj Singh - He had seen deceased Rajbir last on 17.7.2004 i.e. the day on which the deceased disappeared, as per the case of the prosecution.
(ii) PW2 Pradeep Sharma - He was the landlord of accused Vidya Devi and as per the case of the prosecution, accused Vidya Devi had made extra judicial confession to him about her involvement in the murder of Rajbir.
(iii)PW3 WHC Pavitra - She was Duty Constable at P.S. Kapashera on 21.9.2004 and had recorded the FIR.
(iv)PW4 Rambir Singh - He is the brother of deceased Rajbir and a star witness for the prosecution.
(v) PW5 Jagpal Singh - He was the Duty Constable at P.S. Kapashera, who recorded missing report vide DD No.20A.
(vi)PW6 HC Jai Ram - He was MHC(M) at P.S. Kotwali.
(vii)PW7 Const. Rishi Kesh - He was posted at P.S. Kotwali and had deposited the scooter of Rajbir with MHC(M) on 20.7.2004.
(viii)PW8 SI Madan Lal - He was the Draftsman, who prepared scaled site plan of the spot.
(ix)PW9 Balbir Singh - He is father of deceased Rajbir.
(x) PW10 Inspector Nand Kumar - He was posted at SC No.157/08. Page 9 of 39 P.S. Jaffarpur Kalan before whom PW4 and PW9 identified the undergarment of deceased Rajbir on 29.10.2004.
(xi)PW11 HC Ram Niwas - He was the Duty Officer at P.S. Jaffarpur Kalan and had registered FIR No.136/04, u/s.302 IPC.
(xii)PW12 SI Bhagwan Dass - He was posted with Crime Team and had examined the scooter of deceased Rajbir on 05.11.2004.
(xiii)PW13 SI Anand Prakash - He was the Investigating Officer in FIR No.444/05, u/s.279/338 IPC, P.S. Najafgarh and he had formally arrested accused Khilender and one Narender in that case, who were already under arrest at that time in FIR No. 247/05 and had also recorded the disclosure statement of Narender.
(xiv)PW14 HC Ram Rattan - He was the Duty Officer at P.S. Jaffarpur Kalan, who had received information on 19.9.2004 about the dead body of an unidentified person lying at village Mundela, which he recorded as DD No.18A.
(xv)PW15 Krishan Singh - He was the private photographer engaged by the police, who had taken photographs of the dead body at DDU Hospital.
(xvi)PW16 Inspector Mahinder Singh - He was posted as SI at P.S. Kapashera on 24.7.2005 and had gone to P.S. Delhi Cantt. alongwith Inspector Ramesh Chander and other staff, where they arrested accused Khilender.
SC No.157/08. Page 10 of 39(xvii)PW17 Sh. D.S. Negi - He was the Technical Examiner, CDFD, Hyderabad and had compared the DNA of Smt. Jermanti and Sh. Balbir Singh, the parents of the deceased Rajbir, with the DNA of a piece of muscle of the unknown dead body, which had been preserved.
(xviii)PW18 ASI Babu Lal - He was posted at Delhi Cantt. and was the Investigating Officer in FIR no. 247/05 u/s.25 of Arms Act against accused Khilender. (xix)PW19 SI Surjit Singh - He was posted at P.S. Kapashera and brought the scooter bearing no.DL-4S- AJ-9659 of deceased Rajbir from P.S. Kotwali to P.S. Kapashera and also got the same inspected mechanically.
(xx)PW20 HC Azad Prakash - He was posted at P.S. Jaffarpur Kalan on 19.9.2004 and was the member of the team of police personnels, who had reached village Mundela on receipt of information of an unidentified dead body lying there. He had brought rukka prepared by SI Pratap Singh to the police station and had got FIR No.136/04 u/s.302 IPC registered.
(xxi)PW21 SI Pratap Singh - He was also posted at P.S. Jaffarpur Kalan and had gone to the spot in village Mundela where the unidentified dead body was lying. He had taken the dead body out of the sack and examined it. He had prepared the rukka and got FIR No.136/04 registered.
(xxii)PW22 HC Jitender Singh - He was also posted at SC No.157/08. Page 11 of 39 P.S. Jaffarpur Kalan, who had taken two plastic jars alongwith one sample seal to FSL on the instructions of the IO.
(xxiii)PW23 Const. Karamvir - He was posted at P.S. Delhi Cantt. and was witness to the arrest of accused Khilender in FIR No.247/05.
(xxiv)PW24 HC Yashwant - He was posted at P.S. Jaffarpur Kalan and had gone to Hyderabad to deposit four sealed pullindas in CDFD Laboratory, Hyderabad. (xxv)PW25 SI Rajender Singh - He was the Incharge of Mobile Crime Team, South West District, on 19.9.2004 and had inspected the spot where unidentified dead body was found in village Mundela Khurd.
(xxvi)PW26 HC Rajbir Singh - He was posted as MHC(M) in P.S. Jaffarpur Kalan on 23.9.2004.
(xxvii)PW27 Sh. Sanjeev Jain - He was posted as MM in Patiala House Court on 16.2.2005 and the DNA samples of Balbir Singh and Jermanti were obtained by Dr. Sunita Solanki of RTRM Hospital in his presence.
(xxviii)PW28 Dr. B.N. Mishra - He had come to depose in place of Dr. Naranware, who had conducted the postmortem examination of the aforesaid unidentified dead body. He proved the postmortem report.
(xxix)PW29 SI Nanak Chand - He was associated in the investigation of this case alongwith SI Mahender and was witness to the pointing out memos prepared at the instance of accused Khilender, Ramesh and SC No.157/08. Page 12 of 39 Ravinder. Accused Vidya Devi also had made a disclosure statement in his presence on 26.8.2005. Accused Kamlesh was arrested in his presence on 31.3.2006 and accused Suresh Devi was also arrested in his presence on 25.4.2006.
(xxx)PW30 HC Ravinder - He was the photographer in Mobile Crime Team, South West District, New Delhi, who had taken the photographs of the unidentified dead body at village Mundela Khurd.
(xxxi)PW31 Sh. Sanjeev Parmar - He was the SHO, P.S. Jaffarpur Kalan on 19.9.2004 and had taken over the investigation of FIR No.136/04, u/s.302/201 IPC. He has prepared the site plan of the spot where the dead body was found, prepared inquest papers regarding the dead body.
(xxxii)PW32 SI Mahesh Soni - He was posted at P.S. Kapashera and had executed the process u/s.82 Cr.PC against accused Surresh Devi on 14.11.2005.
(xxxiii)PW33 Sh. Abhimanyu Kumar - He was the handwriting expert at CFSL, Chandigarh, and examined the questioned handwriting sent to him in this case.
(xxxiv)PW34 Rajinder Singh - He was the Manager of Syndicate Bank, Pochanpur, New Delhi, in the year 2006 and proved the statement of account no.80261 in the name of deceased Rajbir.
(xxxv)PW35 ASI Krishna, No.3042 - She was posted at P.S. Kapashera on 01.4.2004 and the SHO had taken specimen signatures of accused Kamlesh Devi SC No.157/08. Page 13 of 39 in his presence in the police station.
(xxxvi)PW36 ASI Krishna, No.3052 - She was posted at P.S. Kapashera and was witness to the arrest of accused Kamlesh on 31.3.2006.
(xxxvii)PW37 Sh. Sri Narayan - He was the Sr. Scientific Officer (Chemistry) at FSL, Rohini, and had examined the exhibits of this case sent to FSL, Rohini. (xxxviii)PW38 Inspector Ramesh Chander - He was the final Investigating Officer of this case.
15. The accused were examined u/s.313 Cr.PC on 02.2.2012 wherein they denied all the incriminating circumstances put to them. They denied that Rajbir had come to his in-laws house i.e. house of accused Khilender, Ravinder and Vidya Devi on 17.7.2004. They have stated that they have been implicated falsely in this case on account of strained relations between accused Kamlesh and her in-laws as she had got registered a case u/s.307 IPC against her brother-in-law Rambir (PW4) and his entire family.
16. The accused examined two witnesses namely Sh. Jagbir Singh and Sh. Azad Singh as DW1 & DW2 respectively in their defence. Sh. Jagbir and Sh. Azad Singh are the residents of village Dichau Kalan and known to the family of Sh. Raghubir Singh, father of accused Kamlesh, Vidya Devi and Khilender and husband of accused Suresh Devi. Accused Kamlesh entered the witness box as DW3 and proved the certified copies of the record pertaining to complaint case no.10/05 pending in the court of Sh. Sonu Agnihotri, Ld. M.M., and the certified copy of the record SC No.157/08. Page 14 of 39 pertaining to writ petition no.1267 filed by Balbir Singh in the High Court.
17. I have heard Ld. APP for State, Ld. Counsel Sh. S.P. Kaushal, Advocate for accused Khilender, Vidya Devi, Ravinder, and Smt. Suresh Devi and Sh. Anirudh Yadav, Advocate for accused Kamlesh Devi. I have also gone through the written submissions filed by both sides.
18. Ld. APP submitted that, even though there is no eye witness to the murder of the deceased, yet the prosecution has successfully established the circumstances which lead to the disappearance and death of Rajbir, which point towards the guilt of the accused only. He submitted that there remains no doubt that Rajbir has been killed by the accused. According to him, it has been established conclusively with the help of DNA fingerprinting that the dead body found in village Mundela Khurd was that of Rajbir and hence his death does not remain an issue. He further submitted that postmortem report demonstrates that the death was homicidal. He also submitted that the circumstances that Rajbir had left his house on 17.07.2004 saying that he is going to his in-laws' house; he was last seen by PW1 going to his in-laws' house, his dead body was found in a drain just 3 kms away from the house of the accused, the dead body was found wearing Kurta Pyjama of Rajbir's father-in-law having a bidi of 'Trishul' brand in the pocket which only his father-in-law Raghubir used to smoke, accused Kamlesh got her in-laws i.e. the complainant and his family members implicated in a false case u/s.307 IPC, she never made any complaint about the disappearance of her husband and SC No.157/08. Page 15 of 39 absconding of accused Suresh Devi coupled with the disclosure of accused Khilender recorded in P.S. Delhi Cantt. firmly establish that Rajbir was murdered by the accused and nobody else. With regard the motive for the murder, he submitted that it has been proved that the relations between Rajbir and his wife accused Kamlesh were strained since beginning as Rajbir suspected Kamlesh of having illicit relations with others. According to him, Rajbir had, in letter Ex.PW4/1 written in 1999, expressed that his life is in danger as he has been objecting to the conduct of his wife.
19. Per Contra, Ld. Defence Counsels would argue that DNA testing conducted in this case is fraught with flaws which make it totally unreliable. They submitted that there is no such concrete evidence on record to establish that the dead body found in village Mundela was that of Rajbir. According to them, the prosecution has failed to prove the factum of death of Rajbir. They further argued that the circumstances explained by the prosecution have not been proved at all and even if assumed to be proved, for the sake of arguments, are very weak in nature and conviction for offence u/s.302 IPC cannot be rendered on the basis of those circumstances. The sum and substance of their arguments was that the prosecution has failed to link any of the accused with the disappearance and alleged death of Rajbir.
20. On analysis of the evidence lead by the parties in the instant case and the arguments raised by the defence Counsels, following issues arise for consideration and determination by this Court :
SC No.157/08. Page 16 of 39(i) Whether the dead body found in canal in village Mundela Khurd was that of Rajbir s/o Balbir Singh, meaning thereby that Rajbir has, in fact, been killed?
(ii) Whether Rajbir was kidnapped and killed by the accused pursuant to a well hatched conspiracy?
21. I shall take up issue no. (i) first.
22. As per the prosecution case, the identity of the dead body was established to be that of Rajbir by the colour of its underwear which was identified by Rambir (PW4) and Balbir (PW9), who are the brother and father of the deceased as also by comparison of its DNA with that of the parents of Rajbir i.e. Balbir and Jermanti.
23. A PCR call was received in P.S. Jaffarpur Kalan on 19.9.2004 at 7.15 p.m. to the effect that the dead body of an unknown person is lying in a canal in village Mundela near Toll Tax, Dada Khera Mandir. The information was received by PW14, who was the Duty Officer at the police station and recorded the same as DD No.18A. He handed over the same to Const. Kalu Ram to be handed over to SI Pratap Singh, who had already left the police station to attend another call.
24. SI Pratap Singh appearing as PW21 deposed that on receipt of DD No.18A through Const. Kalu Ram, he alongwith HC Yashpal and Const. Kalu Ram reached the aforesaid spot. They saw the dead body in a plastic bag (Bori) on the corner of canal. The water level in the canal was about 20 feet below the level of SC No.157/08. Page 17 of 39 its banks. He sent Const. Kalu Ram to the police station for fetching a rope, gloves, battery and some helpers for taking out the dead body from the canal. Const. Kalu Ram returned to the spot alongwith Const. Sat Prakash, Const. Naresh and HC Azad Prakash. They also brought the aforesaid articles from the police station. The dead body was taken out of the canal. The head of the dead body was inside the sack and its feet were protruding outside the sack and were tied with a rope and PW21 took out the dead body from the sack and found it to be highly decomposed. Insects were all over the dead body. The dead body was wearing a Kurta Pajama. Its hands and knees were tied together by a cloth. It seemed that the dead body had been thrown in the canal after having been murdered at some other place. Crime Team was called, which inspected the whole spot. PW21 also informed the SHO Sanjiv Parmar, who also reached the spot. PW21 prepared the rukka, sent it to the police station through HC Azad Prakash (PW20) and got FIR No.136/04, u/s.302 IPC registered.
25. PW11 was the Duty Officer at P.S. Jaffarpur Kalan, who registered FIR No.136/04, u/s.302/201 IPC on 20.9.2004.
26. PW31, the SHO P.S. Jaffarpur Kalan, Inspector Sanjiv Parmar had taken over the investigation of this case after registration of the FIR. He prepared site plan Ex.PW31/A and also the inquest papers regarding the dead body. He sent the dead body to Mortuary for preservation. The next day, the investigation was handed over to Inspector Nand Kumar. In the cross examination, he deposed that the dead body was wearing a Kurta Pajama, but could not tell its colour. He did not conduct the SC No.157/08. Page 18 of 39 search of the cloth of the dead body.
27. SI Ravinder Singh, Incharge Mobile Crime Team, South West District, New Delhi, has been examined as PW25. He had reached the spot alongwith staff on the asking of SHO, P.S. Jaffarpur Kalan. On reaching the spot, he found a dead body lying in the water in a bag and the dead body was taken out from the canal in his presence. According to him, the photographer of the Crime Team took photographs of the dead body. He prepared his report which he proved as Ex.PW25/A. In the cross examination, he reiterated that when he reached the spot, the dead body was still inside the water. The dead body was at a distance of 50 meters from the bank of the canal. Photographs of the dead body were got taken while it was still lying inside the water. The dead body was highly decomposed. However, he could not say whether the skin of the dead body was peeled off or not. He did not recollect whether the skin was present around cheek bone of the dead body. He also did not remember whether hairs of the dead body were intact at that time or not. He admitted that the maggots of the dead body have to be preserved in order to ascertain the time since death but in this case, the maggots of the dead body were not preserved.
28. PW30 was the photographer of the Mobile Crime Team, who reached the spot. He had taken seven photographs of the dead body, which he proved as Ex.PW31/B1 to Ex.PW31/B7. He produced their negatives also which are Ex.PW30/A1 to Ex.PW30/A7. According to him, the dead body had already been taken out from the drain and was lying on the rough earth, when SC No.157/08. Page 19 of 39 he reached the spot. He did not take photographs of the place from where the dead body was taken out. The dead body was wet at that time but it was not washed or cleaned in his presence.
29. Inspector Nand Kumar, to whom the investigation of the case FIR No.136/04 was handed over to 21.9.04 has been examined as PW10. According to him, till that day, the dead body was still in DDU Hospital Mortuary and unidentified. He got the dead body photographed for the purpose of identification through a private photographer (PW15). He prepared brief facts of the case for the purpose of postmortem examination (Ex.PW10/B) and also submitted an application for postmortem of the dead body which is Ex.PW10/C. He got the postmortem of the dead body conducted on 23.9.04. The doctor handed over to him Kurta Pajama found upon the dead body and a sealed pullinda containing one rope found tied on the legs of the deceased, one chunni found tied on the neck of the deceased, one cloth piece found tied on the hands of the deceased and one gunny bag in which the dead body was found packed. The doctor also handed over to him four sealed jars containing two teeth, two nails, hair and flesh piece of the deceased, for the purpose of DNA profiling. Two other steel jars were also handed over to him by autopsy doctor, which contained viscera of the deceased. He made efforts for identification of the dead body, but could not succeed. He further deposed that on 22.10.2004 one Rambir alongwith Sudhir came to the police station Jaffarpur Kalan and met him. They told him that their brother Rajbir is missing. He showed them the photograph of the dead body, the clothes found on the dead body but they could not identify the dead body and and the clothes. As per his further SC No.157/08. Page 20 of 39 deposition, Rambir and his father Balbir again came to the police station Jaffarpur Kalan on 29.10.2004 and they were again shown the photographs of the dead body and the clothes found on the dead body. They requested for DNA testing. He thereupon sent four sealed pullindas containing teeth, nails, hairs, flesh piece of the deceased to CDFD, Hyderabad, for DNA fingerprinting. On 16.10.2005 the blood sample of Sh. Balbir Singh and Smt. Jermanti were taken before Sh. Sanjeev Jain, Ld. M.M. by Dr. Sunita Solanki of RTRM Hospital. The samples were sealed with the seal of Ld. M.M. and were sent to CDFD, Hyderabad, after being preserved in the dry ice. He received the report of the DNA fingerprinting on 22.6.05 which is Ex.PW10/D. He thereafter sent the entire case file alongwith documents to SHO, P.S. Kapashera, for further investigation as the dead body was found to be related to FIR NO. 214/04, P.S. Kapashera i.e. the instant case.
30. According to PW15, the private photographer, he was summoned by HC Ajaib Singh and he took two photographs of the dead body in DDU Hospital. Ironically, those two photographs are not on court file. The witness only proved the negatives of those photographs as Mark-PW15/A and Mark-PW15/B.
31. So far as the identification of the dead body is concerned, PW4 Rambir Singh, who is brother of the deceased Rajbir, has deposed in his examination in chief as under:
"On 19.9.2004 an unclaimed dead body has been found. Nobody claimed it. The news about the same had spread everywhere. I also went there in October or November. I went to P.S. Jaffarpur Kalan. Additional SC No.157/08. Page 21 of 39 SHO Nand Kumar showed me the clothes and photographs. One underwear, one baniyan, Kurta Pajama were among the clothes. My two brothers did not wear Kurta Pajama. Underwear and baniyan were that of my brother Rajbir, which I identify clearly."
32. PW4 also identified the blue colour torn underwear and a torn baniyan when shown to him during his testimony in court. Same are Ex.PW4/5 and Ex.PW4/6 respectively. At the same time, in the cross examination, he admitted that he and Rajbir Singh had separate houses. He did not recollect since when Rajbir Singh has been residing separately. He could not tell whether it was for six months or one year or 10 years before disappearance of Rajbir. He also admitted that he had not mentioned the colour of the underwear and baniyan worn by Rajbir, in the missing report. At another place in the cross examination, he admitted that in the bail application filed by him in case FIR No.243/04, u/s.307 IPC got registered against him and his family members by accused Kamlesh, they had mentioned that they have no relation with Rajbir and his wife for the last eight years and they have been residing separately and also have a separate ration card as well as separate electricity and water connections. He further stated that Rajbir had separated from them when he was still a child.
33. On this aspect, PW9 has deposed that he also went to P.S. Jaffarpur Kalan and asked the SHO to show him the clohtes found on the dead body. Clothes were shown to him and his son, who was with him at that time. It was sky blue colour underwear and white banyan which he identified to be of Rajbir. In the cross examination, he stated that Rajbir did not stay with them for even a single day after marriage. According to him, Rajbir had built up SC No.157/08. Page 22 of 39 his own house and was residing there, which house was at a far distance from his house. He never used to visit house of Rajbir and Rajbir never used to come to meet him. He further deposed that nobody from his family used to visit house of Rajbir.
34. One fails to understand how could PW4 and PW9 identify the underwear and banyan of Rajbir when he was residing separately from them for the past several years, in a separate distant house. The underwear and banyan of a peson can be recognised by that person, who has been very close and intimate to the former and who had the occasion to see the former only wearing undergarments. These two witnesses were not on visiting terms with Rajbir's family and Rajbir would not have been roaming in the streets clad only in undergarments. Thus, there was no occasion for these two witnesses to observe the undergarments of Rajbir. So there arose no possibility of their identifying the undergarments found on the dead body to be those of Rajbir. Manifestly, these two witnesses have lied in this regard to the police as well as in the court.
35. Now it is also the case of prosecution that the identity of the dead body has been established by comparison of its DNA with that of Rajbir's parents in CDFD Laboratory, Hyerdabad, and the DNA report shows that the dead body was of the biological son of Rajbir's parents and hence it could be of nobody else than Rajbir. It cannot be disputed that in the past 20 years, DNA typing has enhanced the ability of the forensic scientists to characterize biological evidence and has greatly influenced the way the law enforcement community conducts criminal investigations.
SC No.157/08. Page 23 of 3936. DNA plays an important role in modern forensic science. Today, DNA fingerprinting has become one of the primary methods of identifying people and solving crimes. DNA stands for Deoxyribonucleic Acid. It is the genetic material of a human cell. It can also be described as the blueprint of an organism. DNA is contained in blood, semen, skin cells, tissues, organs, muscle, brain cells, bone, teeth, hair, saliva, mucus, perspiration, fingernails, urine, feces etc.
37. The chemical structure of everyone's DNA is the same. The only difference between people is the order of base pairs. There are so many millions of base pairs in each person's DNA that every person has a different sequence. From these sequences every person could be identified solely by the sequence of their base pairs. Instead, scientists are able to use a shorter method due to repeating patterns in DNA. These patterns do not, however, give an individual "fingerprint" but they are able to determine whether two DNA samples are from the same person, related people, or non related people. This is called DNA fingerprinting or profiling.
38. In the instant case, it is manifest from the deposition of PW21 and PW25 that the dead body was found in water in a drain and was highly decomposed. Maggots had also appeared on it. Postmortem report Ex.PW28/A also mentions as under :
"Rigor Mortis passed off. PM liquidity not evident. Greenish disorientation of whole body. Eyes softened and destroyed. Soft tissues of some parts of scalp and SC No.157/08. Page 24 of 39 face decomposed and eaten by Maggots. Blobs are present with skin peeling. Hairs are loosened. Maggots are moving all over the body. Abdomen distended. Bloating & disfigurement seen. No external injury seen."
39. Postmortem had been done on 23.09.2004 and time since death has been opined as 5 to 6 days before the date of postmortem examination. The autopsy doctor had sealed the muscle piece, two nails, two teeth and scalp hair in four separate jars which he handed over to the then IO PW10 and which fact is confirmed by PW10 in his testimony. PW10 then sent these for DNA fingerprinting and examination to CDFD Laboratory, Hyderabad, on 29.11.2004 through PW24, after PW4 and PW9 approached him on 22.10.2004 and claimed the dead body to be that of Rajbir.
40. Dr. M.M. Narnaware, who had conducted the postmortem examination of the dead body could not be examined as he had expired before he was summoned for his testimony. In his place, Dr. B.N. Mishra entered the witness box as he had worked with Dr. Narnaware and could identify his handwriting. He proved the postmortem report as Ex.PW28/A. Since Dr. Narnaware was not available for his testimony, it could not be known as to from which part of body did he take the muscle piece for DNA testing and whether or not it was decomposed and if so, to what extent. Nothing is mentioned in this regard in the PM report.
41. Dr. B.N. Mishra, appearing as PW28, has deposed that for the purpose of DNA fingerprinting, usually the piece of sternum SC No.157/08. Page 25 of 39 bone is preserved, however, any other specimen also is preserved depending upon the condition of the body alongwith other available specimen for the purpose of corroborative evidence. Evidently, in this case, sternum bone has not been preserved for DNA fingerprinting and it remains a mystery why it has not been done so.
42. As said herein-above, the muscle piece, hair, nails and teeth of the dead body were sealed by the autopsy doctor on
23..09.2004 i.e. the day when he conducted postmortem, and handed over sealed jars to PW10. Thereafter, the sealed jars remained in police station till 29.11.2004 i.e. for more than two months, when the IO sent these to CDFD Hyderabad through PW24. There is no evidence on record to the effect that these samples were preserved properly in the police station at required temperature in order to prevent their further decomposition or deterioration.
43. Dr. D.S. Negi, the Technical Examiner in CDFD Laboratory, Hyerabad, appeared as PW17 for the prosecution. He had extracted the DNA from the samples of dead body and compared the same with the DNA of the parents of Rajbir and had prepared report Ex.PW17/A. According to him, the muscle piece only yielded DNA and the other samples of the dead body i.e. teeth, hair and nails did not yield for DNA testing. He deposed that Micro satellite Loci was used for DNA profiling of the sample. The DNA profile was prepared and analysis carried out using scan and genotype software. He further deposed that DNA profile of the piece of muscle matched with the DNA profile of the source of SC No.157/08. Page 26 of 39 exhibits i.e. blood sample of Smt. Jermanti and Balbir Singh, the parents of Rajbir. It is on the basis of the report Ex.PW17/A prepared by this witness that the prosecution asserts confidently that that dead body was that of Rajbir only.
44. I do not agree with the findings contained in the report Ex.PW17/A. It is a matter of common knowledge and has been admitted by PW17 also in his cross examination that if the environmental condition is humid and wet, allowing growth of microorganisms, then the decay of the muscle would be faster than nails, teeth and hair which are comparatively harder and more resistant than the muscles of the body. In the instant case, admittedly the dead body was found in water in a drain and it had been lying that for the past about 6 - 7 days. It had been eaten by maggots and maggots were present all over the body. Then, how come, the muscle piece had not decayed/decomposed and yielded DNA but the hair, nails and teeth did not yield DNA. However, it is pertinent to note here that it is nowhere mentioned in the report that teeth, hair and nails had become decomposed. No specific reason is mentioned in the report Ex.PW17/A why did not teeth, hair and nails yield DNA. PW17 also could not give any specific reason for the same during his testimony.
45. Further, as per literature downloaded by me from the internet (goggle search), in cases where a DNA sample is either highly degraded, compromised by sample impurities or present in small traces, STR analysis (used in this case) cannot be used to identify the contributor to exclude those who may be falsely associated with the evidence. Analysis of degraded or SC No.157/08. Page 27 of 39 compromised DNA samples often result in dropout of the layer molecular weight loci resulting in partial or no results. To obtain the highest probative value possible from any sample analysis, and to maintain high discrimination power, it is important that larger weight genetic markers successfully amplify. The loss of these larger STR loci reduces the power of identification, whcih can result in cases continuing to be unsolved.
46. Theory and empirical studies reveal that successful analysis of highly degraded DNA specimens, like those found at mass disaster and crime scenes, improves with smaller sized PCR products. Therefore, an innovative approach was explored that exploits the ability to design premiers that reside closer to the target STR. This miniSTR process reduces the size of amplicons, which increases the detection of DNA by focusing on smaller size fragments providing the best opportunity to obtain results from degraded DNA.
47. One of the first examples in which miniSTR technology was applied to forensic sample processing occurred over a decade ago by the Forensic Science Service of USA. They used miniSTR analysis and time-of-flight mass spectrometry to detect and characterize STR loci in small fragments of DNA resulting from exposure to extreme heat. Their experience demonstrated that analysis using miniSTRs dramatically increases the sensitivity of DNA detection. Hellman and others brought miniSTRs into the mainstream by converting the technology so that it would be compatible with current STR typing systems. MiniSTR primers were labeled with fluorescent dyes and the amplified products SC No.157/08. Page 28 of 39 detected by capillary electrophoresis and laser excitation. Thereby, a practical miniSTR technology was created. Because of the ability to type very degraded samples, miniSTR technology can be expected to provide forensic scientists with another tool that captures genetic data from DNA samples of marginal and extremely low quality and quantity. MiniSTR technology offers the power to make identifications from what were once considered "proof" quality samples or those that required substantial manipulation. Perhaps even low copy number testing will become more robust.
48. Most DNA is located in the cell nucleus (where it is called nuclear DNA), but a small amount of DNA can also be found in the mitochondria, where it is called mitochondrial DNA or mtDNA. For highly degraded samples, it is sometimes impossible to get a complete profile of the 13 CODIS STRs. In these situations, mitochondrial DNA (mtDNA) is sometimes typed due to there being many copies of mtDNA. Forensic scientists amplify the HV1 and HV2 regions of the mtDNA, then sequence each region and compare single nucleotide differences to a reference. Because mtDNA is maternally inherited, directed linked maternal relatives can be used as match references.
49. The aforesaid literature on DNA fingerprinting and typing reveals that Microsatellite loci technology used in this case could not have yielded accurate results as the sample i.e. muscle piece was highly decomposed and decayed. It is expected that the laboratory at Hyderabad would expand its analytical capacity to include mini STR testing and mitochondrial DNA (mtDNA) SC No.157/08. Page 29 of 39 Typing for DNA fingerprinting of decomposed samples, which will enhance the accuracy and acceptability of its reports.
50. In my view the DNA testing conducted in the present case is flawed and the report Ex.PW17/A is not reliable. It is fraught with doubts. Hence, I find that there is no credible evidence on record to demonstrate that the dead body found in drain at Mundela Khurd was that of Rajbir.
51. Having said so, let me assume that the aforesaid dead body was that of Rajbir and take up for determination the issue no. 2 framed by me in the earlier part of the judgment, which is as under :
"Whether Rajbir was kidnapped and killed by a well hatched conspiracy?"
52. In this regard, the prosecution case rests upon the disclosure statement made by accused Khilender in case FIR No. 247/05, u/s.25 of Arms Act, P.S. Delhi Cantt., last seen evidence of PW1, extra judicial confession made by accused Vidya Devi to PW2 and the testimony of PW4, who deposed that the Kurta Pajama found on the dead body was that of Sh. Raghubir and the Biri packet of make 'Trishul' found in the pocket of Kurta used to be smoked by Raghubir.
53. It will not be out of place to mention here that the police was without any clue about the alleged killers of Rajbir till 24.7.2005 when the IO Inspector Ramesh Chander (PW38) got information from P.S. Delhi Cantt., that accused Khilender has SC No.157/08. Page 30 of 39 been arrested in case FIR No.247/05 and he has disclosed that he alongwith his associates has killed Rajbir, son of Sh. Balbir and thrown his dead body in the canal at village Mundela Khurd near Toll Tax Barrier in order to destroy the evidence. This disclosure statement of accused Khilender was recorded by PW18 ASI Babu Lal and is Ex.PW18/A. As per testimony of PW38, on receipt of aforesaid information from P.S. Delhi Cantt. he alongwith SI Nanak Chand, SI Mahender Singh and other staff reached P.S. Delhi Cantt., where HC Babu Lal (PW18) handed over to him the copy of disclosure statement Ex.PW18/A of accused Khilender, copy of seizure memo of car no.DL-9CD-0831 and also produced accused Khilender before him. PW38 interrogated accused Khilender and arrested him in the present case vide arrest memo Ex.PW16/A and also recorded his disclosure statement Ex.PW16/E. In this disclosure statement, accused Khilender is stated to have disclosed that he called deceased Rajbir to his house on 17.7.2004, according to a plan hatched with the other accused to eliminate him. He kept accused Kamlesh and accused Suresh Devi as guard outside the house, whereas he alongwith accused Vidya and accused Ramesh went to the room where Rajbir was sitting on the first floor of the house, soon on entering the room, he hit Rajbir on his head with a wooden rod 20 to 25 times. Rajbir got severely injured and fell on the floor. Accused Vidya Devi and Ramesh strangled Rajbir with a Chunni. He then alongwith accused Ramesh put on a Kurta Pajama on the dead body of Rajbir, put the same in a plastic bag after tying its hands and legs and took the dead body in his Maruti Car no.DL-9CD-0831 up to the drain and threw the same into the drain.
SC No.157/08. Page 31 of 3954. The aforesaid disclosure statement of accused Khilender is the foundation of the prosecution case, however prosecution is precluded from placing any reliance upon the same for the reason that the said disclosure statement is totally inadmissible in evidence in view of the bar contained in section 25 of the Evidence Act as no fact got discovered or recovered pursuant to the same. Apart from this, there is a marked contradiction or inconsistency between the contents of disclosure statement and the medical evidence i.e. postmortem report. As per disclosure statement Ex.PW16/E, Rajbir was hit on his head by accused Khilender by a wooden rod 20 - 25 times and Rajbir had got severe head injuries. To the contrary the postmortem report shows that no head injury was seen on the dead body found in the canal of village Mundela Khurd, which is reiterated by PW28 in his cross examination. This leads us to two conclusions i.e. either the disclosure statement Ex.PW16/E has been manipulated by the Investigating Officer in the zeal to solve the mystery regarding disappearance of Rajbir at the earliest or that the dead body found in the canal at village Mundela Khurd was not that of Rajbir. In any case, the prosecution version gets falsified and the basic pillar of the prosecution case gets razed to ground.
55. So far as the confession made by accused Vidya Devi to PW2 is concerned, it may be noted that PW2 has turned completely hostile and did not support the prosecution case in this regard. He was extensively cross examined by Ld. APP and he denied all the suggestion put to him in his cross examination. Thus another pillar of the prosecution case also falls.
SC No.157/08. Page 32 of 3956. Coming to another pillar of the prosecution case, which is the last seen evidence of PW1. According to PW1, he had seen Rajbir going to village Dichau on his scooter on 17.7.2004. He met Rajbir at Petrol Pump Najafgarh Nangloi road at 4 p.m. he was on his motorcycle and both were driving side by side while talking to each other. He left Rajbir in village Dichau in front of a house. While talking, Rajbir told him that his wife has come without telling him and he has come to see her. In the cross examination, he has deposed that Rambir (PW4) was his class- fellow of Xth Class and he was on visiting terms to his house. He might have visited the house of Rambir about 7 - 8 times from July, 2004 to January, 2005. Rambir used to meet him during this period after every 3 - 4 days. He had visited the house of Rambir on 20.7.2004 and stated in his presence of entire family that he had seen Rajbir on 17.7.2004 at Petrol Pump Najafgarh.
57. I wonder how the prosecution has projected the testimony of this witness as last seen evidence. No doubt, it appears that this witness had seen Rajbir on 17.7.2004 going towards village Dichau and left him in front of a house in the village, but he nowhere states that he had seen Rajbir entering the house of his in-laws i.e. house of accused Khilender, Suresh and Vidya Devi. Though his statement was recorded by the police, yet the Investigating Officer did not bother to take him to the house in front of which he had left Rajbir in order to ascertain whether or not the house was that of the accused. Hence, there is nothing in the testimony of this witness to suggest with certainty that he had left Rajbir in front of the house of the accused.
SC No.157/08. Page 33 of 3958. This brings me to the testimony of the star witness of the prosecution namely Rambir (PW4), brother of Rajbir. A minute scrutiny of his deposition reveals that he is not a truthful and reliable witness. His deposition is based only upon surmises and conjunctures. His deposition throws many questions than it answers. He has started his deposition by saying that on 17.7.2004 his brother Rajbir had gone to his in-laws' house at Dichau Kalan after informing them and also took the keys of the house with him. This is not believable in view of my observations contained in para 34 of this judgment herein-above. There was no occasion for Rajbir to inform this witness or his parents about his intention of going to his in-laws house when he was not on visiting terms to them and had been residing separately from them since a very long time. This witness has admitted at page 5 of cross examination dated 26.10.2010 that PW1 met him four times between 17.7.2004 to 20.7.2004. PW1 also met him two or three times between 02.9.2004 and 24.9.2004. He admitted that he and PW1 were studying in same school till Xth class and the house of PW1 is about 300 to 400 meters away from his house. The witness further states that he knew before 02.9.2004 that PW1 had seen his brother Rajbir going to his in-laws' house. Ironically, this witness has nowhere stated so in his missing report dated 02.9.2009 which has been reproduced in para 4 of this judgment herein-above. Similarly, PW9 also is silent about this fact in his statement dated 21.9.2004 recorded in the police station, on the basis of which FIR was registered in this case, which also has been reproduced in para 5 of this judgment herein-above. PW4 has himself deposed in his examination in chief that PW1 had come to their house in the evening of 20.7.2004 and stated in front of all SC No.157/08. Page 34 of 39 the family members that he had left Rajbir at Dichau Kalan at his in-laws' house. This was a very material piece of information available with PW4 and PW9 but strangely they chose not to share the same with the police. This makes evident that either there was no such information given to them by PW1 or they themselves did not believe it to be true.
59. The conduct of this witness PW4 also seems to be far from being fair and free from suspicion. As noticed herein-above, he has stated that Rajbir had informed him on 17.7.2004 that he is going to his in-laws' house and next day i.e. on 18.7.2004 only Rajbir's wife Kamlesh came to the house alongwith accused Khilender and her daughter. It is the consistent stand of PW4 that Rajbir did not return to his house thereafter and was not seen thereafter. Still this witness remained in sound sleep and did not report the matter to the police till 02.9.2004. The reason for such delayed reporting of the matter to the police has nowhere been explained. Such delay assumes importance in the wake of the statement of PW4 that PW1 had informed them on 20.7.2004 that he had seen Rajbir going to his in-laws' house on 17.7.2004. Even in the statement dated 24.9.2004 given by PW9 to the police which forms the foundation of the FIR in this case, it is nowhere stated that they suspected the hands of in-laws of Rajbir in his disappearance. An impression is therefore gathered that neither PW4 nor PW9 were certain and sure in their minds that Rajbir has been kidnapped by his in-laws.
60. According to PW4, he came to know that Rajbir has been killed by his in-laws as he recognised the Kurta Pajama found SC No.157/08. Page 35 of 39 worn upon the alleged dead body of Rajbir to be that of his father- in-law namely Raghubir. According to him, such type of Kurta Pajama used to be worn by only Raghubir Singh and therefore, he recognised it to be that of Raghubir Singh. In this regard, the statement of this witness PW4 in his cross examination is material and is reproduced herein below :
"Raghubir Singh, who is the father in law of my brother Rajbir, was not doing any work in the year 2004 as he is in old age. I met Raghubir Singh for the last time about six months before 17.7.2004 at his home. It was just a courtesy visit. I was alone at that time. It is correct that Raghubir Singh had suffered injuries in a road accident on account of which he has become paralytic and is bed ridden much before the year 2004. I used to meet Raghubir Singh before the aforesaid visit also. I cannot say how tall was Raghubir Singh. I cannot admit or deny the suggestion that his height was five and a half feet. It is wrong to suggest that Raghubir Singh has never worn pyjama in his lifetime. I did not measure the length of pyjama or kurta which was found worn by the dead body recovered in this case. I can say that Raghubir Singh used to wear kurta pyjama but I cannot say of which make/brand.
Q. What was the fabric of the kurta pyjama worn by the dead body recovered in this case?
Ans. Raghubir Singh used to wear same type of kurta pyjama which I have seen in Jaffarpur police station.
I identified the aforesaid kurta pyjama to be that of Raghubir Singh only for the reason that a packet of bidi of Trishul brand was found in the pocket of kurta. I had been shown the aforesaid kurta pyjama for the first time in Jaffarpur police station in the last week of October 2004."SC No.157/08. Page 36 of 39
61. From the aforesaid statement of PW4 in his cross examination, it is evident that he did not recognise Kurta Pajama to be that of Sh. Raghubir Singh by its colour, type or length etc. but only because a packet of Biri of Trishul brand was found in the pocket of Kurta, which according to him, used to be smoked only by Raghubir Singh. In my opinion, this statement of PW4 is completely unbelievable for various reasons. Firstly, he nowhere states in his testimony that he had seen Raghubir Singh smoking Biri of Trishul brand at any point of time. Secondly, Biri of Trishul brand cannot be taken to be smoken only by Raghubir Singh and not by anybody else. It is a popular brand of Biri in the North India and thousands, if not lakhs, of people, would be smoking this brand of Biri. Thirdly, PW21, PW25, PW30, PW31, who had seen the dead body first of all and had taken out the same from the drain, nowhere deposed that they had seen or taken out an empty packet of Trishul brand Biri from the pocket of Kurta found on the dead body. Similarly, PW10, who had shown Kurta Pajama to PW4 and PW9 in the police station nowhere states that a packet of Trishul brand Biri was in the pocket of Kurta and it also was shown to them. Fourthly, as mentioned herein-above, the dead body had been lying in the drain for about 6 to 7 days and it was highly decomposed. It is very difficult to accept that an empty Biri packet, which is made of thin paper, could survive and be intact even after remaining in water for about six days. It is for these reasons, I am unable to accept that any Biri packet was found in the Kurta of the dead body and the Kurta Pajama can in any way be linked to Sh. Raghubir Singh, father-in-law of Rajbir.
62. it is also relevant to note here with intense dismay SC No.157/08. Page 37 of 39 that the investigating officer has made no efforts to verify the claim of PW4 that the Kurta Pajama was of Raghubir. He never interrogated Raghubir in this regard nor compared his height with the length of Kurta Pajama to ascertain whether, in fact, it would fit Raghubir. It is apparent that the investigating officer either lacked investigating techniques or deliberately conducted shoddy investigation.
63. It will not be out of place to mention here that all the defence witnesses have stated that Raghubir Singh never wore Kurta Pajama and never smoked Trishul brand Biri. Hence, the important link of the prosecution case, connecting the accused to the disappearance and murder of Rajbir fails.
64. Much was harped by the Ld. APP for State upon the strained relations between Rajbir and his wife accused Kamlesh and also upon the letter Ex.PW4/1 allegedly written by Rajbir on 08.9.1991 to persuade me in believing that only Kamlesh and her parental family had the reason and motive to kill Rajbir. With regard to these submissions of Ld. APP, it is to be noted that there is no independent evidence on record to demonstrate that relations between Rajbir and accused Kamlesh were strained to the extent that accused Kamlesh intended to eliminate Rajbir. So far as the Ex.PW4/1 is concerned, it is too remote in time to be linked with the disappearance and murder of Rajbir. Letter is dated 08.9.1991, whereas Rajbir had disappeared on 17.7.2004 i.e. almost after about five years. Further, it may be said that in this letter Rajbir has mentioned that his wife accused Kamlesh had illicit relations with Dr. Rakesh of Najafgarh, Vijender of Dichau SC No.157/08. Page 38 of 39 Kalan and Krishan of Dichau Kalan and had gone on to write that if he dies, these three would be responsible for his death. There is no evidence on record to show that Rajbir had filed any criminal complaint against his wife i.e. accused Kamlesh or any of the three persons regarding their aforesaid illicit acts. Most importantly, it is not clear in what context had Rajbir written Ex.PW4/1. It is not in the shape of any letter as it is not addressed to anybody. So how and in what context did he write this document is not evident from the record.
65. It may also be noted that motive alone is not sufficient to render conviction for the offence of murder u/s.302 IPC, when the prosecution has failed to produce sufficient and cogent evidence regarding involvement of the accused in the kidnapping and alleged murder of Rajbir.
66. I, therefore, conclude by saying that the prosecution has failed to prove the charges against any of the accused. The accused are liable to be acquitted and are hereby acquitted as such.
67. A copy of this judgment be sent to CDFD Laboratory, Hyderabad, with the direction to go through paragraphs no.35 to 49 of the judgment and with the hope that the persons concerned would take steps to expand its analytical capacity so as to enhance the accuracy and acceptability of its reports.
Announced in open (VIRENDER BHAT)
Court on 06.6.2012. A.S.J. :Dwarka Courts
New Delhi.
SC No.157/08. Page 39 of 39