Delhi District Court
State vs . : 1) Dayanand on 12 March, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 252/17
FIR No. : 858/16
U/s : 302/392/397/411/201/120B/34 IPC
P.S. : Prashant Vihar
State Vs. : 1) Dayanand
S/o Sh. Vidyanand
R/o Flat No:26, Type-II,
Delhi Jal Board, Sector-5,
Rohini, Delhi.
2) Ajay @ Piliya
S/o Sh. Shiv Shankar
R/o Khasra No.115, Rithala,
Delhi.
3) Monu Yadav @ Motu
S/o Sh. Rajender Yadav
R/o Khasra No.115, Rithala,
Delhi.
4) Manoj
S/o Sh. Mange Ram
R/o C-198, Vjay Nagar, Phase-II,
Delhi.
Offence complained of : 302/394/397/120B/411/201
/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 06.05.2017
Date of Judgment : 12.03.2018
State Vs. Dayanand etc. SC No.252/17 :: 1 ::
JUDGMENT
1. On 07.12.2016 ASI Dharambir while patrolling reached open land of DDA in front of Kings Mall, Sector-10 Rohini. He found a crowd in the land. He reached there. He found a dead body lying under the people tree. He passed on this information to PS: Prashant Vihar. DD No.37A was recorded. DD was assigned to SI Pukhraj. SI Pukhraj along with Ct. Vicky reached the spot. They noticed the dead body lying on the ground having cut marks on the neck and stab injuries on the stomach. One brown colour wallet was found lying nearby. In the wallet there was Aadhar card of Uttam Prashad Singh. Blood was also lying on the ground near the dead body. 3-4 glasses and few polythene of namkeen were lying there. No eye witness was found. Dead body was identified as of Uttam Kumar Singh. It was found that deceased was using mobile phone No.9015993007. CDR was collected. It was found that the mobile phone of deceased was used by one HC Dinesh. HC Dinesh deposited the mobile phone with the IO. Accused Dayanand was arrested in case FIR No.1257/16 u/s 379 of PS: Vijay Vihar who confessed about this crime. Accused Monu Yadav and Ajay were arrested in case FIR No.1244/16 u/s 457/380/IPC PS: Vijay Vihar. They also confessed about this crime. Accused Monu Yadav also got recovered the election I-card of the deceased. All th e accused persons State Vs. Dayanand etc. SC No.252/17 :: 2 ::
pointed out the place of occurrence. After completion of investigation charge sheet against them was filed. Lateron accused Manoj was arrested on 06.04.2017. Accused Manoj also got recovered one e-rickshaw. Charge sheet against Manoj was also filed. Ld. MM after complying with the provisions of section 207 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 397 and 302 IPC are exclusively triable by the Sessions court.
2. Accused Dayanand, Ajay and Monu were charged for the offences punishable u/s 392 r/w 34 IPC, 302 r/w 34 IPC and 397 IPC. Accused Manoj was charged for the offence punishable u/s 411 IPC. All the accused persons pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. Dr. Sandeep Garg was examined as PW-1. He deposed that on 11.12.2016 from 10:45 pm to 12:15 pm. He conducted post mortem on the body of Uttam Prasad Singh S/o Sh. Arun Prashad Singh. After conducting the post mortem he opined that death is due to haemorrhagic shock consequent to injury to the neck. Injury No.1, 2 and 5 are ante mortem in nature, fresh duration prior to death, caused by sharp weapon. Injury No.1 and 2 are sufficient to cause death in ordinary course of nature. Injury No.4 and 5 are post mortem in nature caused by sharp pointed weapon. After the State Vs. Dayanand etc. SC No.252/17 :: 3 ::
post mortem the viscera along with blood sample, clothes of the deceased, blood on gauze all duly sealed in different parcels and were handed over to the I.O along with sample seal. He proved his report as Ex.PW1/A.
4. The court question was put to the doctor which is as follows:
Q. On page 2 and 3 of the post mortem report under the heading External examination you have mentioned that injuries mentioned at sl.no.3 and 4 are post mortem injuries but on page 4 under the heading opinion you have mentioned injury No.4 and 5 are postmortem in nature caused by sharp pointed weapon which of the two is correct? Ans. My observation on page 2 and 3 that the injuries given at sl.no.3 & 4 under the heading External examination is correct. In the opinion there is typographical error and it be read as injury no. 3 & 4 are post mortem in nature caused by sharp pointed weapon.
5. During cross-examination by the defence he stated that he does not remember if there were any corresponding cut marks on the clothes found on the body.
6. ASI Dharambir was examined as PW-2. He deposed that on 07.12.2016 at about 3:30 pm while patrolling he reached at Kings Mall, Sector-10. There is a DDA park in front of Kings mall. He noticed crowd in park under a Peepal State Vs. Dayanand etc. SC No.252/17 :: 4 ::
tree. On inquiry he came to know that one dead body was lying there. He reached there and found the dead body. He made a call to duty officer PS: Prashant Vihar and informed him that a dead body is lying in DDA park near Kings Mall, Sector-10 Rohini. SI Pukhraj and Ct.Vicky came there. After some time SHO Inspector Vikram and other staff also arrived there. It was a body of a boy aged 24 to 25 years. Blood was lying at a distance of two steps on the Southern side. One leather purse was also lying there. There was a green colour T-shirt, Salatey colour jacket and sport shoes in the feet of the body. The head was in the North side and the feet were in the South side. There were two injury marks on the neck and two in the abdomen. In the purse there was a photo of a lady and one Adhar card in the name of Prashant. Crime team was called on the spot. Crime team inspected the scene and took the photographs. On the direction of Inspector Vikram he reached the address mentioned in the Aadhar card. He came to know from there that the person whose name was mentioned in Aadhar card was residing there as a tenant. He also came to know that maternal uncle of the deceased is residing in Badli. The landlord gave him the telephone number of the maternal uncle. Today he does not remember the name of maternal uncle. He made a call to the maternal uncle and told that a dead body is found. The State Vs. Dayanand etc. SC No.252/17 :: 5 ::
maternal uncle said that he is coming to the spot. He returned to the spot. The dead body was removed to the mortuary. SI Pukharaj prepared the rukka and sent the same through Ct. Vicky for registration of the case.
7. Ld. APP put some leading questions wherein he denied the suggestion that he reached there at 5:30 pm and not 3:30pm. However, he admitted that in the Aadhar card the name was Uttam Prashad Singh S/o Sh. Arun Prashad Singh R/o B-322, Shahbad Daulatpur, Prahlad Pur North West. He admitted that no eye witness met them there.
8. During cross-examination for accused Ajay and Monu he deposed that SI Pukhraj and Ct. Vicky reached the spot at about 3:40 or 3:50 pm. 10 minutes thereafter SHO and other staff also reached there. He was confronted with his statement where the age of the deceased is mentioned as 26-27 years. On the spot IO had shown photographs to the public persons who were there but nobody was able to identify the photographs. He does not if IO recorded names and addresses of the persons to whom the photographs were shown. The photograph was not given to him by the IO. Crime team reached the spot at about 6 pm. He reached the spot at about 5:30 pm. His statement that he reached there at 5:35 pm is correct and not that he reached there at 3:30 pm. He left the spot at about 7:00 pm for going to the State Vs. Dayanand etc. SC No.252/17 :: 6 ::
address mentioned in the Aadhar card. He did not record the statement of landlord. He had not seen any document regarding the landlord /of the person he met. He was confronted with his statement where it was not found mentioned that landlord gave him the mobile number of maternal uncle Mithilesh Kumar. However, it is mentioned that he obtained the mobile number of maternal uncle of deceased. He made telephone call to Mithilesh at 7:30 pm. Mithilesh reached the spot at about 8:30 pm. He also reached the spot from the house of landlord at about 8:30 pm. The entire police staff left the spot at about 9:00 pm. He does not remember if the statement of Mithilesh was recorded on the spot. From the spot he reached the police station at about 10 or 11 pm. He did not make any arrival entry in the police station.
9. During cross-examination for accused Dayanand he stated that the distance between PS:Prashant Vihar and the place where dead body was found is about 1 ½ km. It takes about 10 minutes to reach that place from police station in vehicle. He denied the suggestion that he did not join the investigation. The witness was re-examined on the request of Ld. Addl. PP as according to him he could not question the witness with regard to statement dt. 06.04.2017. The request was allowed.
State Vs. Dayanand etc. SC No.252/17 :: 7 ::
10. He stated that on 06.04.2017 he along with SI Rajneesh and Inspector Vikram went in search of accused Manoj and reached his house No. C-1/98, Vijay Vihar, Phase-II. Accused was found outside his house. The accused was interrogated and arrested vide arrest memo Ex.PW2/A. His personal search was conducted vide memo Ex.PW2/B. The accused made the disclosure statement Ex.PW2/C. Accused led them to A-89/2, Gopal Nagar, Delhi to a godown. Accused pointed out e-rickshaw which was inside the godown. The said e-rickshaw along with ignition key was taken in possession vide seizure memo Ex.PW2/D. He identified the accused Manoj. E-rickshaw could not be produced and it was reported that the same has been stolen and the FIR No.502/17 has been recorded in this regard at PS: Prashant Vihar on 21.09.2017.
11. During cross-examination he stated that no DD entry was recorded when the left the police station on 06.04.2017. Only IO can tell if he was having any photograph of accused Manoj on 06.04.2017. Public persons from neighbourhood were called to join the investigation at the time of apprehension of accused Manoj but none agreed. No legal action was taken against those public persons who refused to join. He denied the suggestion that signature of accused were obtained on various blank papers which were State Vs. Dayanand etc. SC No.252/17 :: 8 ::
subsequently converted into incriminating documents. No documentary proof regarding ownership of A-89/2 Gopal Nagar Delhi was taken into possession. The godown was found open when they reached there. IO requested 2-3 public persons from neighbourhood to join the proceedings but none agreed. The manufacturing ID number of this e- rickshaw was not noted down and mentioned in the seizure memo. He denied the suggestion that accused did not make any disclosure statement or that no such recovery was effected.
12. SI Ravinder Kumar was examined as PW-3. He deposed that on 29.12.2016 he joined the investigation with SI Rajneesh and IO /Inspector Vikram Singh. They reached Rohini court complex where accused Dayanand was produced. With the permission of the court IO interrogated the accused and arrested him vide arrest memo Ex.PW3/A. Accused made the disclosure statement Ex.PW3/B. Police custody remand of accused was taken. Accused was got medically examined.
13. On 30.12.2016 he again joined the investigation with SI Rajneesh and Inspector Vikram. Accused was interrogated who made the supplementary disclosure statement Ex.PW3/C. Accused Dayanand led them to the scene of crime and pointed out the same vide pointing out State Vs. Dayanand etc. SC No.252/17 :: 9 ::
memo Ex.PW3/D. He identified the accused correctly. On 31.12.2016 he along with SI Rajneesh and IO again reached Rohini Court Complex where accused Ajay and Monu were produced. With the permission of the court IO interrogated them and arrested them vide memos Ex.PW3/E and 3/F. Both the accused made the disclosure statements Ex.PW3/G and 3/H respectively. Police custody remand of both the accused was taken. Both the accused pointed out the place of occurrence vide pointing out memo Ex.PW3/I. He identified all the 3 accused correctly.
14. During cross-examination for accused Dayanand he denied the suggestion that accused had not made disclosure statement or that his signatures were obtained on various blank papers which were subsequently converted into incriminating evidence. He denied the suggestion that accused had not pointed out the place of occurrence as deposed by him. No question was put to him on behalf of accused Manoj.
15. During cross-examination for accused Monu and Ajay he stated that they left the police station in noon hours for going to Rohini courts. They remained in the Rohini court till 3 or 4 pm. He does not remember if the departure entry was made. He denied the suggestion that accused did not make the disclosure statement or that they did not point out any State Vs. Dayanand etc. SC No.252/17 :: 10 ::
scene of crime.
16. Ct. Rajeev Kumar was examined as PW-4. On 07.12.2016 he was working as duty officer. On that day at 5:40 pm ASI Dharamvir on telephone informed him that, "Kings Mall ke saamne DDA ki khali land, sector-10 Rohini Peepal ke ped ke neeche ek namalum shaksh khoon se lathpath mrit avastha mein pada hai, IO bhijwaya jaye". He passed on this information to SI Pukhraj who along with Ct.
Vicky left for the spot. He also told the SHO and ATO Inspector Vikram Chauhan about the information and they also left for the spot along with staff. He recorded DD No.37A in this regard and proved the copy of the same as Ex.PW4/A.
17. On the same day at 7:35 pm Ct. Vicky brought a rukka sent by SI Pukhraj. He made endorsement Ex.PW4/B on the rukka. He recorded DD No.45A regarding start or registration of FIR and proved the copy of the same as Ex.PW4/C. He got recorded the FIR on computer through Ct. Sohan Lal. The computer generated copy of FIR is Ex.PW4/D. He recorded DD No.50A regarding registration of FIR. The further investigation was assigned to Inspector Vikram Chauhan ATO as per the direction of SHO. He sent the original rukka and copy of FIR to Inspector Vikram Chauhan through Ct. Vicky. The copies of FIR were sent to Senior police officials and area MM through Ct. Babu Lal who left on State Vs. Dayanand etc. SC No.252/17 :: 11 ::
govt. motorcycle No. DL 1SZ 5173. He proved the copy of the DD as Ex.PW4/E. The certificate u/s 65B Evidence Act is proved as Ex.PW4/F. Ct. Babu Lal returned on 08.12.2016 at 12:55 am. Arrival entry was made as DD No.5A the true copy of the same is Ex.PW4/G.
18. During cross-examination he denied the suggestion that FIR and DD entries are ante dated and ante timed.
19. Ct. Vicky was examined as PW-5. He deposed that on 07.12.2016 he was posted at PS: Prashant Vihar. On that day he along with SI Pukhraj reached in front of Kings Mall in the vacant land of DDA sector-10, Rohini on receipt of DD No.37A. ASI Dharambir met them. One dead body of unknown person was lying. There were 2 injury marks on the neck and 2 on the stomach. There was blood on the clothes of the deceased. On checking a brown colour leather purse was found containing Aadhar card of Uttam Prasad Singh S/o Sh. Arun Prashad Singh R/o 322, Shahbad Daulatpur Prahlad Pur. A photo of female was also found. No eye witness was found on the spot. SHO along with staff reached there. Crime team was called on the spot. Crime team inspected the scene of crime and took the photographs. SI Pukhraj made endorsement on DD No.37A Ex.PW4/A and prepared the rukka. SI Pukhraj handed over the rukka to him at about 7:15 pm. He went to the police station and got the State Vs. Dayanand etc. SC No.252/17 :: 12 ::
FIR registered. Duty officer handed over the original rukka and copy of FIR to him. He came back on the spot and handed over the original rukka and copy of FIR to Inspector Vikram. The dead body was removed to the mortuary of the hospital and remained in his custody. On 11.12.2016 the post mortem was conducted on the body. After the post mortem the body was handed over to the brother of deceased. Doctor handed over to him the viscera, one envelope and sample seal which he handed over to the IO. IO seized the same vide memo Ex.PW5/A.
20. During cross-examination for accused Ajay, Monu and Dayanand he stated that IO did not carry out any investigation with respect to the photographs in his presence.
He does not know what the IO did with that photograph. He does not know who informed the brother of deceased. No public person was present on the spot when they reached there. He denied the suggestion that he did not visit the scene of crime.
21. Sh. Kamal Kishor Ahlmad from the court of Ld. MM Ms. Pooja Aggarwal was examined as PW-6. He has brought the case file of FIR No.1244/16 PS: Vijay Vihar u/s 457/380 IPC. He proved the copy of FIR as Ex.PW6/A. The photocopy of arrest memo of Ajay and Monu as Ex.PW6/B and Ex.PW6/C. The photocopies of their personal search State Vs. Dayanand etc. SC No.252/17 :: 13 ::
memos as Ex.PW6/D and Ex.PW6/E. He has also brought the case file of FIR No:1257/16 u/s 379 IPC. He proved the copy of the same as Ex.XPW6/F. The photocopy of the arrest memo is proved as Ex.PW6/G and the photocopy of the personal search memo is proved as Ex.PW6/H.
22. During cross-examination for the accused persons he stated that he has no personal knowledge of the contents of documents.
23. Ct. Naveen was examined as PW-7. He visited the scene of crime on 03.01.2017 along with Inspector Vikram and other staff. He took the rough notes and measurements at the instance of Inspector Vikram Singh and thereafter returned to his office. On 06.01.2017 he prepared the scaled site plan Ex.PW7/A. Thereafter, he destroyed the rough notes and measurements taken on the spot.
24. During cross-examination nothing material came on record to discredit the witness.
25. ASI Moti Ram was examined as PW-8. On 07.12.2016 on receipt of call he along with SI Jagdeep and other staff reached in front of Kings Mall DDA land. One male dead body was lying under the Peepal tree. SI Jagdeep inspected the site and he took the photographs from different angles. He proved the photographs as Ex.PW8/A1 to A18 and negatives as Ex.PW8/B1 to B18.
State Vs. Dayanand etc. SC No.252/17 :: 14 ::
26. During cross-examination he stated that the information was received at about 6:30 pm by SI Jagdeep. They reached the spot at about 7:30 pm and left the spot at about 8:30 pm. No public person was present on the spot.
27. SI Jagdeep was examined as PW-9. He deposed that on 07.12.2016 on receipt of call, he along with HC Moti Ram and other staff reached on the land in between Kings Mall and Unity Mall. One male dead body was lying under the Peepal tree. He inspected the scene of crime. HC Moti Ram took the photographs. Local police officials of PS: Prashant Vihar including SI Pukhraj and Inspector Vikram were present on the spot. He prepared the crime team report Ex.PW9/A. They remained on the spot from 7:30 pm to 8:30 pm.
28. During cross-examination he stated that no public person was present on the spot.
29. HC Narender was examined as PW-10. On 07.12.2016 he was posted at PS: Vijay Vihar. Case FIR No.1244/16 was registered at PS: Vijay Vihar on the complaint of Manjeet with respect to theft. The investigation of the case was assigned to him. On 15.12.2016 he along with HC Rajneesh, Ct. Soha Ram were patrolling in the night. 3 boys were found present in front of a shop in suspicious condition. On seeing the police they started running. All the State Vs. Dayanand etc. SC No.252/17 :: 15 ::
three persons were apprehended. They revealed their names as Ajay, Ravi and Monu. They were found in possession of one instrument for breaking the lock. The accused persons revealed that they committed theft in shop of case FIR No.1244/16 PS: Vijay Vihar. The accused led them to their tenanted room and got recovered two gas cylenders. All the three accused persons were arrested and they made the disclosure statement. The photocopy of the arrest memo of Ajay and Monu are Ex.PW6/B and Ex.PW6/C and their personal search memos are Ex.XPW6/D and Ex.PW6/E. He also identified both the accused persons.
30. During cross-examination he denied the suggestion that accused persons did not make any disclosure statement or that he of his own recorded disclosure statements.
31. HC Anil was examined as PW-11. He was working as MHC(M) in police station Prashant Vihar. He proved the entries in register No.19 as Ex.PW11/A to Ex.PW11/E. He proved the entries RC's No:19/21/17 & 20/21/17 as Ex.PW11/F and Ex.PW11/H respectively. He proved the photocopies of acknowledgment receipt as Ex.PW11/G and Ex.PW11/I. He deposed that nobody tampered with the case property till it remained in his custody.
32. During cross-examination for the accused persons he admitted that Inspector Vikram did not sign in register No.19 State Vs. Dayanand etc. SC No.252/17 :: 16 ::
while depositing the case property. He denied the suggestion that Inspector Vikram did not deposit the case property or that the entries were manipulated as per the wish of IO.
33. Jayant Kumar was examined as PW-12. He deposed that Uttam Singh was working under him as a watchmen. He used to perform the duty during night hours and during day hours he used to do some other work. In the intervening night of 06-07 December 2016 Uttam Kumar did not perform his duty at his house in the night. One day he went to police station to inquire about Uttam Kumar but no clue was found.
One day he received call from PS: Prashant Vihar and he was informed that Uttam Kumar Singh has been murdered.
34. During cross-examination he stated that he did not lodged any missing report of Uttam Kumar Singh. He along with Saroj went to PS: Prashant Vihar to inquire about the e- rickshaw of Saroj. They went to PS: Prashant Vihar on 08.12.2016. He does not remember on what date his statement was recorded by the police.
35. HC Dinesh was examined as PW-13. He deposed that on 08.12.2016 he was posted at PS: Vijay Vihar. His duty was on ERV on that day. He used to bring his meal in a box and used to keep it in a bag. He used to place that bag behind the driver seat in ERV. On 09.12.2016 at about 8:00 am he was relieved from his duty. He parked the ERV at State Vs. Dayanand etc. SC No.252/17 :: 17 ::
police station and left for looking after his ailing father admitted in Bhagwati Hospital Rohini. As he was in a hurry therefore, his bag was left in ERV. After meeting father he reached home. When he reached home he checked his bag and then realized that his bag is left in ERV. At about 1:30 or 2:00 pm he again visited Bhagwati Hospital to see his father. At about 4:00 or 4:30 pm he left the hospital and reached PS:
Vijay Vihar. He picked his bag from ERV and returned home. He took out the lunch box from the bag and also found that one mobile phone make Nokia red colour was also there. He took out the mobile phone from the bag and left it at home. He instructed his children not to touch the same telling that this phone belongs to someone. Thereafter, he went to sleep. When he woke up his son Kamal told him that he has put his sim in the said mobile phone. Next day he came to police station along with the phone and had shown the same to his colleagues. The colleagues told him that the phone does not belong to them. He again took back the mobile phone to his house.
36. On 27.12.2016 he was called by Inspector Vikram Singh at PS: Prashant Vihar. He told him that someone has left mobile phone in his ERV. He produced that mobile phone before Inspector Vikram who seized the same vide seizure memo Ex.PW13/A. He identified the mobile phone as State Vs. Dayanand etc. SC No.252/17 :: 18 ::
Ex.PW13/Article-1.
37. During cross-examination for the accused persons he stated that his duty was for 24 hours on 08.12.2016 from 8 am to 8 am next day. He left for performing his duty on ERV at 8 am on 08.12.2016. No departure entry was made. He was confronted with his statement where it was not found mentioned that he parked the ERV at police station Vijay Vihar or that he had gone to see his ailing father at Bhagwati Hospital or that his bag was left in ERV due to hurry. He did not tell the IO that after meeting his father he went home. He left home on 08.12.2016 at about 7:00 am. He was confronted with his statement where it is not mentioned that at about 1:30 or 2:00 pm he again went to Bhagwati Hospital to see his father. He did not return to the police station after finding the phone in the bag to get the DD recorded. He was confronted with his statement where it was not found mentioned that he took out the mobile phone from bag and left it at home and also instructed his son Yugal not to touch the mobile phone as it belongs to someone else. He does not remember if on 27.12.2016 Inspector Vikram called on his mobile phone or on landline or that this call was received on Ex.PW13/Article-1. He does not remember the exact time when Inspector Vikram called him. He does not know which mobile phone number was used by his son Kamal in State Vs. Dayanand etc. SC No.252/17 :: 19 ::
ExPW13/Article-1. He reached police station at about 3 or 4 pm after receiving call of Inspector Vikram. Immediately, after reaching the police station he handed over the mobile phone to Inspector Vikram. He admitted that after 9 th December 2016 his son used the mobile phone Ex.PW13/Article-1. He does not know if there were any phone numbers stored in mobile phone, before his son Kamal inserted his sim in the mobile phone. He inquired from Kamal that there would be some numbers in that mobile phone but Kamal told him that no numbers were found in the mobile phone. He himself checked the mobile phone on 11.12.2016 but no numbers were found stored in the mobile phone. He denied the suggestion that his bag was not left in the ERV or that he is deposing falsely.
38. HC Kaptan Singh was examined as PW-14. He deposed that on 09.12.2016 he was posted in PS: Vijay Vihar. On that day on receipt of call with regard to theft of a battery rickshaw he recorded statement of Rajesh and got registered FIR No.1257/16. He along with complainant Rajesh Kumar and Ct. Anil went in search of e-rickshaw. They reached at Lal quarter Vijay Vihar phase-I near Mother Dairy where battery rickshaw was found driven by accused Dayanand. They apprehended him with stolen battery rickshaw. The crowd gathered there. ERV of PS: Vijay Vihar State Vs. Dayanand etc. SC No.252/17 :: 20 ::
came there. Accused Dayanand was made to stand near ERV and they started dispursing the crowd. Thereafter, they took accused Dayanand about 20-30 steps away from the mother dairy. ERV left from the spot. Accused Dayanand was arrested. The battery rickshaw was also seized.
39. During cross-examination for the accused person he deposed that he received the call about theft at about 12:30 pm. He was on another call at that time. Ct. Anil was also with him. After receiving the call he reached the quarters of Jal Board. It took him 15-20 minutes in recording the statement of complainant. He sent the rukka to police station through Ct. Anil. Ct. Anil came back at about 2:00 or 2:30 pm at the quarters of Jal Board. The distance between the quarters of Jal Board and place from where accused was apprehended is about 1 and half to two kilometers. He denied the suggestion that there are pickets of other police stations in between that one and half or two kilometers.
40. ERV reached there within 5-7 minutes of apprehension of accused. There were two persons in the ERV including the driver. The police officials in ERV did not inquire anything from accused. Accused was made to stand near ERV. No police officer was standing near accused Dayanand when he was standing near ERV. The police officials were all within the distance of 15 to 20 steps from State Vs. Dayanand etc. SC No.252/17 :: 21 ::
ERV. There was no ignition key in the battery rickshaw. Battery rickshaw was in running condition when accused was apprehended. No ignition key of battery rickshaw was recovered in the personal search of accused. Accused was taken to police station in the same battery rickshaw. The personal search of accused was conducted on the spot. 30- 40 persons gathered where accused was apprehended. Only the driver of the ERV got down and not the other police official. He denied the suggestion that ERV official did not visit the above mentioned spot as deposed by him.
41. Kamal was examined as PW-15. He deposed that on 09.12.2016 he returned home after attending his tution classes. His father is working in Delhi Police. His father was present at house and was taking rest. One mobile phone, make Nokia red colour, was lying on table. He asked his brother Yugal as to who owned that mobile phone. His brother informed him that his father had instructed not to touch the phone as their father is not aware as to who is the owner of the mobile phone. He picked up the mobile phone.
He found that the mobile phone was blank/empty. He inserted the SIM card in the mobile phone and used the same. When his father was leaving house for performing his duty his father inquired about the mobile phone. He informed his father that he used the said mobile phone by inserting the State Vs. Dayanand etc. SC No.252/17 :: 22 ::
SIM and also made calls. His father scolded him and even slapped him. His father told him that the mobile phone does not belong to them and it could be a property of some other person. He handed over the mobile phone to this father with SIM. When his father returned the mobile phone was again lying at home. He again took the same and used it. On 27.12.2016 his father informed that this mobile phone is a case property in some murder case. He handed over the mobile phone set to his father after removing the SIM. On 01.02.2017 he went to PS:Prashant Vihar where his statement was recorded. He identified the mobile phone as Ex.PW13/Article-1.
42. During cross-examination for accused Dayanand, Ajay, Monu and Manoj he was confronted with his statement where it was not found mentioned that his father was already present at home and was taking rest when he returned from tution or that one mobile phone make Nokia red colour was lying on the table or that he asked his brother Yugal as to who owned that mobile phone on which his brother informed him that father has instructed not to touch the phone because his father is not aware as to who is the owner of the said phone or that he picked up the mobile phone and found the same as blank/empty and without SIM. Or that he inserted the SIM card in the same phone or that when his State Vs. Dayanand etc. SC No.252/17 :: 23 ::
father was leaving the house for performing duty his father asked about the phone and he informed that he used the said phone by inserting SIM or that his father chided or scolded him and even slapped him and told him that mobile phone does not belong to them or that he handed over the mobile phone to his father with the said SIM. He was also confronted with his statement where it was not found mentioned that when his father returned from duty mobile phone was lying at the home. Therefore he again took the same or that on 27.12.2016 his father informed that this mobile phone is a case property in some murder case and he handed over the said mobile phone to his father after removing SIM card.
43. On 01.02.2017 he went to police station along with his father in the evening hours. He met police officials and his statement was recorded. It is not in his knowledge as to who handed over mobile phone Ex.PW13/Article-1 to the police.
He used mobile phone No.8882541045 in the mobile phone. The said mobile phone was issued in the name of one of their family member but he is not aware as to in whose name the SIM was issued. After inserting the SIM in the mobile phone he had not checked as to how many mobile phone numbers were found in the memory of the said mobile phone. He denied the suggestion that he was aware about State Vs. Dayanand etc. SC No.252/17 :: 24 ::
the ownership of the said mobile right from the very fist date. He denied the suggestion that mobile phone was given to him by his father.
44. Sh. Saurabh Pathak, Jr. Forensic/chemical examiner Biology was examined as PW-16. He conducted the Biological and DNA examination on the exhibits and proved his report as Ex.PW16/A. The testimony of the witness has gone unchallenged and uncontroverted.
45. Ct. Badri Prashad was examined as PW-16. He brought the duty roaster of upper and lower staff of PS: Vijay Vihar dt. 08.12.2016 and 09.12.2016. The duty roaster of lower staff dt.08.12.2016 is Ex.PW16/A running into four pages. As per duty roaster HC Dinesh was on duty from 8 am to 8 am on ERV as mentioned at point X1 in Ex.PW16/A. The duty roaster of upper staff of 08.12.2016 is Ex.PW16/B running into two pages.
46. The duty roaster of lower staff dt. 09.12.2016 is Ex.PW16/C running into four pages. Duty roaster of upper staff dt. 09.12.2016 is Ex.PW16/D running into two pages.
Duty roaster of lower staff dt. 10.12.2016 is Ex.PW16/E running into four pages. As per duty roaster from 8 am to 8 am on ERV as mentioned at point X2 in Ex.PW16/E. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Dayanand etc. SC No.252/17 :: 25 ::
47. SI Pukhraj Singh was examined as PW-17. He deposed that on 07.12.2016 after receiving DD No.37A Ex.PW4/A he along with Ct. Vicky reached the vacant land of DDA in front of Kings Mall, Sector-10 under the Peepal tree.
A male dead body of aged about 26-27 years was lying under the tree. One brown colour leather purse was lying on the ground. The purse was found containing Aadhar card in the name of Uttam Singh. Blood was also found lying on the ground at about 2-3 steps away from the dead body towards South side. Plastic glasses and empty pouches were lying. No eye witness was found. He made endorsement Ex.PW17/A on DD No.37A. He prepared the rukka and handed over the same to Ct. Vicky for registration of FIR at about 7:15 am. ATO Inspector Vikram and other staff also reached the spot. He requested that further investigation be assigned to Inspector Vikram. Inspector Vikram sent the message for calling of mobile crime team. Mobile crime team reached the spot and inspected the scene of crime. The photographer took the photographs. Ct. Vicky came back along with original rukka and copy of FIR and handed over the same to the IO. The dead body was sent to mortuary of BSA hospital through Ct. Vicky. He also accompanied Ct. Vicky to BSA hospital and got the dead body preserved. He came back on the spot and briefed the facts to the IO. IO State Vs. Dayanand etc. SC No.252/17 :: 26 ::
lifted the blood from the ground near the dead body, put the same in the container, gave it sl.no.1. IO also lifted the blood soaked earth, put the same in plastic container and gave it sl.no.S2. IO lifted the earth control, put the same in plastic container and gave it mark as S3. The blood which was found lying about 3-4 steps away from the dead body was also lifted, put in the plastic container and given mark S4. IO lifted the blood stained earth from there, put in the plastic container and gave it sl.no.mark S5. IO lifted the earth control put in plastic container and gave it mark S6. All the plastic container were wrapped with doctor tape, sealed with the seal of VSC and seized vide memo Ex.PW17/B. The brown colour purse containing Aadhar card in the name of Uttam Prashad Singh and the photograph of a girl was put in a plastic container wrapped with doctor tape, sealed with the seal of VSC. The container was seized vide memo Ex.PW17/C. IO prepared the site plan at his instance. The witness identified the brown colour purse, Aadhar card and the photograph of the girl and another photograph of the male as Ex.PW17/Article-1.
48. During cross-examination he stated that he received the information of this case at 5:40 pm. He was present in the police station at that time. He reached the spot in 8 to 10 minutes. The place is about 1 ½ km away from the police State Vs. Dayanand etc. SC No.252/17 :: 27 ::
station. SI Dharambir met him on the spot. No public person was present on the spot near the dead body. However, some public persons were standing at distance. Crime team reached the spot after about 45 minutes of his reaching the spot. Ct. Vicky returned to the spot after about 40-50 minutes. He had not mentioned in his statement to the IO that the purse was also found containing photograph of the male and hand written slip. He admitted that he deposited the dead body by mentioning unknown in Ex.PW17/DX. The plastic glasses and polythene were not taken in possession which were lying near the dead body. The crime team remained on the spot for about an hour. ASI Dharambir was sent to verify the particulars mentioned on the Aadhar card. After about an hour ASI Dharambir returned to the spot. He does not know at what time ASI Dharambir left the spot. He does not know how many photographs were taken by the crime team. He finally left the spot after about 9 pm. He does not know if ASI Dharambir returned with some other person. No question was put to the witness on behalf of accused Manoj.
49. Ravinder was examined as PW-18. He brought the record pertaining to copies of FIR No.1244 and 1257 of the year 2016 and proved the same as Ex.PW18/A and Ex.PW18/B. The testimony of the witness has gone State Vs. Dayanand etc. SC No.252/17 :: 28 ::
unchallenged and uncontroverted.
50. Gautam Kumar was examined as PW-19. He deposed that on 07.12.2016 he received information on his mobile phone that his younger brother Uttam Kumar Singh has been killed. He along with his relative reached Delhi. He along with his maternal uncle went to PS: Prashant Vihar where the police officials had shown him the photograph of dead body.
In the photograph he identified the dead body as of his brother. They went to BSA hospital where he identified the dead body of his brother vide statement ExPW19/A. He received the body after post mortem vide memo Ex.PW19/B. The memo also bears signature of his uncle Mithilesh Kumar at point B. Nothing material came to discredit the witness during cross-examination.
51. SI Rajnish was examined as PW-20. He deposed that on 27.12.2016 he perused the call detail record of the mobile phone set of deceased Uttam Kumar. This set was found operating in the area of Swatantra Nagar Narela in the house of HC Dinesh. HC Dinesh was called in the police station by Inspector Vikram Singh Chauhan. Statement of HC Dinesh was recorded. HC Dinesh handed over the mobile set to IO /Inspector Vikram Chauhan who seized the same vide seizure memo Ex.PW13/A. On 29.12.2016 he again joined the investigation with SI Ravinder and IO/Inspector Vikram State Vs. Dayanand etc. SC No.252/17 :: 29 ::
Singh. They reached Rohini Court where accused Dayanand was produced. IO with the permission of the court interrogated the accused and arrested him vide arrest memo Ex.PW3/A. Accused made the disclosure statement Ex.PW3/B. He identified the accused correctly.
52. On 31.12.2016 he again joined the investigation and had reached Rohini court complex with SI Ravinder and IO. Accused Ajay and Monu were produced and he corroborated the testimony of PW-3 in respect to the arrest of accused persons and their making the disclosure statement. He deposed that accused Ajay and Monu also pointed out the place of occurrence vide memo Ex.PW3/I.
53. On 01.01.2017 he again joined the investigation with IO. Accused Monu Yadav was in police custody. Accused led them to his house at village Rithala. From there produced one ID card in the name of Uttam Kumar Singh s/o Sh. Arun Kumar Singh R/o Mohan Pur, Garhi Anchal Sambhu Ganj, Distt. Banka. That ID card was put in a plastic container wrapped with doctor tape seized with the seal of VSC and seized vide memo Ex.PW20/A.
54. On 06.04.2017 he along with SI Dharambir and Inspector Vikram went in search of accused Manoj and reached H.No:C-1/98 Vijay Vihar. Accused was found outside his house. He was interrogated and arrested vide memo State Vs. Dayanand etc. SC No.252/17 :: 30 ::
Ex.PW2/A. His personal search was conducted vide memo Ex.PW2/B. Accused made the disclosure statement Ex.PW2/C. Accused led them to A-89/2, Gopal Nagar from where he got recovered one e-rickshaw of red colour. The rickshaw with keys was seized vide memo Ex.PW2/D. He identified the mobile phone as Ex.PW13/Article-1. The voter ID card as Ex.PW20/Article-1. But e-rickshaw could not be produced as the same has already been stolen in FIR No.502/17 registered at PS: Prashant Vihar on 21.09.2017.
55. During cross-examination he deposed that he does not remember at what time HC Dinesh was called and at what time HC Dinesh reached at PS: Prashant Vihar. IO did not take any action against HC Dinesh. He does not remember at what time he reached Rohini Court complex on 31.12.2016. He does not remember if any DD entry was recorded on 06.04.2017. IO was not having any photograph of accused Manoj. No public person from the neighbourhood was called to join the investigation. He denied the suggestion that accused did not make the disclosure statement. No documentary proof regarding ownership of A-89/2, Gopal Nagar was seized. The godown was found open. IO requested 2-3 persons from the neighbourhood to join the proceedings but none agreed. The manufacturing ID number of the e-rickshaw was not noted by the IO. He cannot tell State Vs. Dayanand etc. SC No.252/17 :: 31 ::
about the battery that was found installed in the e-rickshaw. He denied the suggestion that he did not join the investigation. He denied the suggestion that nothing was disclosed by the accused persons or that they were made to sign on blank papers. He denied the suggestion that none of the accused pointed out the scene of crime or that he did not join the investigation.
56. Pawan Singh, Nodal Officer Idea Cellular was examined as PW-21. He proved the call detail record of mobile phone No.9911555189 for the period 01.06.2016 to 13.12.2016. The original customer application form is not available with respect to this number as the same has been destroyed in the fire. The photocopy of the complaint in this regard is Ex.PW21/A. The copy of the customer application form taken from computer record is Ex.PW21/B. As per the record it is in the name of Jugal Kishor S/o Sh. Girdhari Shah R/o 35/3A block, Gali No.1, Gaurav Nagar, Kirari Suleman Nagar, Delhi. The CDR for the period from 01.06.2016 to 13.12.2016 is Ex.PW21/C. The certificate under section 65 B of Evidence Act is Ex.PW21/D. The testimony of the witness has gone unchallenged and uncontroverted.
57. Inspector Vikram Singh Chauhan was examined as PW-22. He corroborated the testimony of PW-17. He proved the site pan prepared by him as Ex.PW22/A. He prepared State Vs. Dayanand etc. SC No.252/17 :: 32 ::
the inquest documents Ex.PW22/B. After the post mortem he collected the exhibits from the doctor which was seized vide memo Ex.PW5/A. He also corroborated the testimony of PW- 20 SI Rajnish with respect to the seizure of mobile, recording of statement of Dinesh and the seizure of mobile phone and the arrest of accused persons. Their disclosure statements and the recoveries. He sent the exhibits to FSL and collected the result. He also collected the call detail record of the mobile phone and the copy of the customer application form and place the same on the record. He also identified the case property.
58. During cross-examination by the accused persons he stated that he received the information at about 5:45 pm. He alone reached the spot at about 6:05 pm. SI Pukharaj ASI Dharambir, Ct. Vicky and other staff were present there.
SHO also came there along with the staff after 10 minutes of his reaching there. SHO directed him to carry out further investigation after sending of the rukka. SHO was not present on the spot when he received the original rukka and copy of FIR. He called the crime team at about 6:20 or 6:25 pm. After about half an hour thereof crime team reached the spot. Crime team remained on the spot for about 15-20 minutes. He seized the case property in the presence of the officials of mobile crime team. He had not seized the plastic State Vs. Dayanand etc. SC No.252/17 :: 33 ::
glasses and the plastic polythene. No finger prints were lifted by the crime team from the scene of crime as per his knowledge. He came to know the name and address of the dead body from the Aadhar card. He did not send the Aadhar card with the dead body to the mortuary. He perhaps sent the request on 10/11.12.2016 for obtaining the CDR. He does not remember the exact date when CDR was received. But on 27.12.2016 when he returned back after leave he got the copies of the CDR from the reader of the SHO. He got the mobile phone number of the deceased from Mithilesh on 09. or 10 of December 2016. He also got the CDR of mobile phone No.8882541045 on 27.12.2016. He called up Dinesh who was using the said mobile set on telephone. Dinesh reached the police station on the same day in the evening. HC Dinesh handed over the mobile phone set which was in working order and he removed the SIM from the mobile phone and handed over to him. At that time there were many mobile phone numbers reflected on the screen. He did not make any inquiry from the phone numbers which were reflected on the screen. He denied the suggestion that accused persons had not made any disclosure statement or did not get recover anything. Accused Dayanand took them to the house of accused Manoj for recovery of e-rickshaw. He requested nearby residents but none agreed as Manoj is BC State Vs. Dayanand etc. SC No.252/17 :: 34 ::
of the area. He denied the suggestion that case property was planted upon the accused persons or that they have been falsely implicated.
59. Sh. Raj Kumar Sharma Manager wireless service from MTNL was examined as PW-23. He brought the original customer application form of Mobile Phone No.9013574537.
As per the customer application form this number was issued in the name of Ct. Dinesh S/o SH. Om Parkash R/so 2A, Gali No.2A, Swatantar Nagar Narela. The customer application form was annexed with I-card and voter ID Card. Photocopy of the customer application form is proved as Ex.PW23/A and the attested copies of the ID card are Ex.PW23/B. The testimony of witness has gone unchallenged and uncontroverted.
60. Sh. Rama Shankar Yadav was examined as PW-24. He deposed that on 16.06.2017 on the request, he took out the prints out of call detail record of mobile phone No.9013574537 from 01.12.2016 to 05.06.2017. the CDR running into 44 pages is Ex.PW24/A. The certificate u/s 65B Evidence Act is Ex.PW24/B. The testimony of this witness has also gone unchallenged and uncontroverted.
61. Sh. Yogesh Tripathi, Alternate Nodal Officer Reliance Communication was examined as PW-25. He brought the record of mobile phone No.9015971565. As per the record it State Vs. Dayanand etc. SC No.252/17 :: 35 ::
is issued in the name of Shamsher Alam S/o Sh. Irfan Ansari R/o 82/W-48, Block F-7, T-Huts Sultan Puri, Delhi. The customer application form is attached with voter ID Card. The copy of the customer application form is proved as Ex.PW25/A. The call detail record of this number from 01.12.2016 to 29.03.2017 is proved as Ex.PW25/B. The certificate u/s 65B Evidence act is proved as Ex.PW25/C. He has also brought the record of mobile phone No.9015993007. As per record it was issued in the name of Uttam Prashad Singh S/o Sh. Arun Prashad Singh r/o B-322 Shahbad Daulat Pur, Delhi. Aadhar card was annexed with the customer application form. The defence has admitted the same as Ex.PX-1. The CDR from 01.12.2016 to 29.03.2017 is also admitted as Ex.PX1. The certificate u/s 65B evidence is also admitted as Ex.PX1. The defence has also admitted the record of mobile No.8882541045 as Ex.PX2 the record of which has been brought by this witness. The testimony of this witness has gone unchallenged and uncontroverted.
62. Thereafter the prosecution evidence was closed. Statements of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. They did not wish to lead evidence in defence.
63. Thereafter, the case was fixed for final arguments. I State Vs. Dayanand etc. SC No.252/17 :: 36 ::
have heard Ld. APP for the State, Ld Counsels for the accused persons and perused the record.
64. In the present case there is no eye witness. The case is based upon circumstantial evidence. The prosecution intend to prove the following circumstances to establish the guilt of accused persons:
1.Recovery of mobile phone of deceased.
2.The recovery of Election ID card of deceased.
3.Recovery of e-rickshaw of deceased.
4.The pointing out of place of occurrence by the accused persons.
65. I take up the circumstances one by one.
Recovery of mobile phone of deceased.
66. Ld. APP submitted that in this case it has come on record that one dead body was found lying in the ground in front of Kings Mall under a Peepal tree. The body was identified as of Uttam Prashad Singh S/o Sh. Arun Prashad Singh by his maternal uncle Mithilesh and brother Gautam Kumar Singh. It has come on record by way of evidence that Uttam Kumar Singh was using mobile phone number 09015993007 issued by Reliance and the document is Ex.PX-1. This document is admitted by the defence also. The call detail record of this mobile phone has been proved on record as Ex.PX1. The record shows that the mobile phone State Vs. Dayanand etc. SC No.252/17 :: 37 ::
used by Uttam Kumar Singh was having IMEI No.358355057415420. When the details of the same were taken out it was found that this mobile phone was used by HC Dinesh examined as PW-13. The call detail record shows that the number used was 8882541045. HC Dinesh handed over the mobile phone to the IO and the same was seized vide memo Ex.PW13/A on 27.12.2016. Ld. APP submitted that the mobile phone got recovered was having the same IMEI number i.e.:358355057415420. Prosecution had examined HC Dinesh as PW-13. SI Rajneesh as PW-20 and IO as PW-22 Inspector Vikram Singh. All three have fully supported the prosecution case.
67. HC Dinesh was posted in PS: Vijay Vihar and his duty was on the ERV on 08.12.2016 as has come in the duty roaster proved by Ct. Badri Prasad PW-17. On that day HC Dinesh left his bag in ERV itself. On 09.12.2016 the duty was not of HC Dinesh. On the 09.12.2016 in the evening when he took back his bag, he found the mobile phone in the bag. He had shown that mobile phone to his colleges but none claimed the same and i.e. why he kept it at his home which was used by his son Kamal examined as PW-15 using the SIM of HC Dinesh.
68. The issue as to how this mobile phone reached in the bag of HC Dinesh is explained by PW-14 HC Kaptan Singh. State Vs. Dayanand etc. SC No.252/17 :: 38 ::
He deposed that on 09.12.2016 he arrested Dayanand in case FIR No.1257/16 PC: Vijay Vihar in case of theft of e- rickshaw. As the people gathered there therefore ERV reached there within 5 to 7 minutes. Accused Dayanand was made to stand near ERV and at that time he put that mobile phone in the bag of HC Dinesh, which HC Dinesh later on handed over to the IO on 27.12.2016. Ld. APP submitted that this mobile phone was used by deceased is evident from documents Ex.PX1. The recovery of the mobile phone shows the involvement of Dayanand in the present case and that is why this mobile phone reached HC Dinesh. Ld. APP submitted that the circumstance stands established and point towards the guilt of the accused.
69. Ld. Defence counsel submitted that the onus was upon the prosecution to prove that this mobile phone was with Dayanand and it was he who dropped it in the ERV. But no such evidence has been brought on record.
70. HC Kaptan Singh examined as PW-14, stated that one ERV of PS: Vijay Vihar came at the place from where accused was apprehended. There were two police officials in ERV. i.e. one driver and one another police official. Dayanand was made to stand near the ERV. Only the driver came down and the other official remained seated in the ERV. There is no evidence that accused entered the ERV. State Vs. Dayanand etc. SC No.252/17 :: 39 ::
Under the circumstances if he had not entered the ERV and one of the police official was also sitting in the ERV there is no possibility of accused be able to put that mobile phone in the bag of HC Dinesh. Onus was upon the prosecution to prove and establish this fact which the prosecution has failed. Ld. Counsel submitted that even otherwise IMEI number mentioned on the mobile phone as in Ex.PX1 is different. IMEI Number of the phone as mentioned in the seizure memo and as in Ex.PX1 is 358355057415420 but in the later part of the CDR the IMEI Number comes to 358355057415430 which shows that there is a manipulation in the record and evidence has been tempered. Ld. Defence counsel submitted that Keeping in view all these facts the benefit be given to the accused and he be acquitted.
71. After hearing the arguments and going through the record I found that according to the prosecution case one body was found on 07.12.2016 in the DDA park in front of Kings Mall. The body was identified as of Uttam Kumar Singh. During evidence it was found that he was using mobile phone. The details of the same were taken out which are Ex.PX1. It was a dual Sim mobile phone. The two IMEI Nos are:35835505741542 and 35835505741543. IMEI No. mean International Mobile Equipment Identity Number and is generally of 14 (Fourteen) digits. The 15 th digit is check digit State Vs. Dayanand etc. SC No.252/17 :: 40 ::
and is neither transmitted nor stored in the data base at any point. Hence, for considering IMEI Number from CDR the last digit is immaterial. In the CDR it has come that upto 10 th December the mobile phone was used by using the slot having IMEI No.35835505741520 thereafter it was used by using the slot 358355057415430 therefore I do not found any discrepancy in the same and no merit in the contention of Ld. Defence counsel. The onus was heavy on the prosecution to prove and establish that this phone was put in the bag of HC Dinesh only by accused Dayanand. HC Kaptan Singh has been examined as PW-14 according to him on 09.12.2016 in case FIR No.1257/16 PS: Vijay Vihar he arrested accused Dayanand. People gathered there and therefore, ERV reached there. Accused was made to stand near ERV. But here it is important to note that there is no such evidence that accused entered ERV or that ERV was un-attended. According to the evidence there were two officials in that ERV. The driver got down but the other official remained seated in the ERV. If accused Dayanand had entered that ERV he must have noticed him entering ERV. But there is no such evidence on record that Dayanand entered the ERV.
72. The onus was upon prosecution to even prove that ERV reached there but the official on duty on the ERV on 09.12.2016 has not been examined. Even the log book of State Vs. Dayanand etc. SC No.252/17 :: 41 ::
ERV has not been proved. It being a Govt. Official the log book of the same must have been maintained and driver must have entered in the record that on 09.12.2016 on the call he reached Lal quarters Vijay Vihar near mother dairy where accused Dayanand was found apprehended. Under the circumstances it becomes very much doubtful that it was Dayanand who put that mobile phone in the bag of HC Dinesh.
73. So far as conduct of HC Dinesh is concerned that is also not above mark. He found one unclaimed mobile phone in the bag which according to him was left behind in the ERV.
He had not made any DD entry or deposited the mobile phone in the malkhana of PS: Vijay Vihar. Though he took caution by showing it to his colleges but as ERV is always used for emergency purposes and some time accused persons are also taken in that vehicle, therefore, it was his responsibility that he should have deposited that mobile in the malkhana which he has not done. Rather from 09.12.2016 till 27.12.2016 he continued using that mobile phone. In any case the onus was upon the prosecution to prove and establish that this mobile phone was put in the bag of HC Dinesh by none else but by accused Dayanand which the prosecution has failed. The log book of ERV not produced. The driver of ERV is also not examined. Under the State Vs. Dayanand etc. SC No.252/17 :: 42 ::
circumstances in my opinion prosecution has failed to prove and establish that this mobile phone was put in the bag of HC Dinesh by Dayanand only or that thereafter HC Dinesh produced it before the IO. In view of the above discussion in my opinion the circumstance is not proved and establish. Recovery of Voter ID Card
74. Ld. APP submitted that the other circumstance is Recovery of the Voter ID card of the deceased Ex.PW20/Article-1 from the house of accused Monu at the instance of accused Monu. Accused Monu along with his co-
accused Ajay was arrested in case FIR No.1244/16 on 15.12.2016 by HC Narender. He deposed that accused persons along with another accused Ravi were arrested being found in suspicious condition and accused Monu & Ajay disclosed about the commission of this offence. Thereafter, they were arrested in this case on 31.12.2016 when their production warrants were got issued. Witnesses PW-3 SI Ravinder, PW-20 SI Rajnish and Inspector Vikram Singh PW22 examined in this regard and they proved their arrest memo Ex.PW3/E and 3/F. The disclosure of accused Ajay is Ex.PW3/G and of Monu is Ex.PW3/H. Their police custody remand was taken. In pursuance to the disclousure on 01.01.2017 accused Monu Yadav @ Montu led the police team to Villager Rithala in the house of Balbir near Rice Mil. State Vs. Dayanand etc. SC No.252/17 :: 43 ::
He was tenant of Balbir. Accused led them to his tenanted room and produced one Voter ID card of the deceased. This voter ID card was seized vide memo Ex.PW20/A. The two witnesses examined in this regard are PW-20 SI Rajneesh and IO of the case PW-22 Inspector Vikram Singh. Both of them have fully supported and corroborated each other and established the recovery of this ID card. Ld. APP submitted that this recovery on 01.01.2017 of the voter ID card of the deceased point towards the guilt of the accused and shows his involvement. It is submitted that there is no explanation by the accused as to how he came in possession of this ID card. The two witnesses are believable and there is no reason to disbelieve their testimony it is prayed that the circumstance stands established and proved which also point towards the guilt of the accused.
75. Ld. Defence counsel submitted that according to the prosecution case the purse and even Aadhar card of the deceased was found on the spot . Therefore, there is no possibility that the accused persons would have taken away his election ID card with them. Even otherwise this election I-
card if of no use to Monu Yadav. It has no value for him. There is no reason why he will carry that election I-card or will keep the same in the safe custody at his residence, only to be caught. Ld. Counsel submitted that infact it is planted State Vs. Dayanand etc. SC No.252/17 :: 44 ::
evidence which is also evident from the fact that no public person was joined. At the place of recovery also there were many public persons as has come in the evidence. The police was also knowing that pursuance to the disclosure they are going to effect recovery but no efforts were made whatsoever for joining the public witnesses. Ld. Counsel submitted that Keeping in view the fact that no public witness was joined the benefit be given to the accused.
76. After hearing the arguments and going through the record I found that in the present case there are only two police witnesses i.e. SI Rajneesh PW-20 and Inspector Vikram Singh PW-22. There is no public witness joined, though it has come that this recovery was effected from residential area and there were other tenants also. The land lord was also not joined. No effort was made whatsoever to join the public persons even otherwise according to the story the wallet of the deceased was found on the spot wherein the Aadhar card was also found. There is no other recovery from Monu except the election I-card. This is of no value so far as accused Monu Yadav is concerned. There is no reason why he will keep this election I-card with him in his custody that also after 08.12.2016 till 01.01.2017 when it is of no use to him. Keeping in view all these facts the recovery itself becomes doubtful, particularly when there is no public State Vs. Dayanand etc. SC No.252/17 :: 45 ::
witness joined. The onus was upon prosecution to establish this fact which in my opinion is not fully established. Recovery of e-rickshaw.
77. Ld. APP submitted that in this case one e-rickshaw was recovered from Manoj who was arrested on the disclosure of accused Dayanand. PW-20 as well as PW-22 deposed that accused Manoj was arrested on 06.04.2017 from his house C-198, Accused Manoj led them to the godown at A-89/2, Gopal Nagar and from the godown the e-
rickshaw of red colour was recovered and seized vide memo Ex.PW2/D.
78. All the three witnesses are consistent, corroborated each other. There is no reason to disbelieve them. The public witnesses could not be joined as according to the witnesses Manoj is B.C of the area and no person is ready to depose against him. Ld. APP submitted that the recovery of the e- rickshaw driven by the deceased from the possession of accused Manoj at the instance of Dayanand and other accused persons clearly show that this e-rickshaw was disposed off by the accused persons to Manoj who received it knowing that it is the e-rickshaw of a deceased person and despite that he with dishonest intention kept the same in his possession. Ld. APP submitted that all the three witnesses i.e. PW-2, PW-20 & PW-22 are consistent about the recovery State Vs. Dayanand etc. SC No.252/17 :: 46 ::
and there is nothing on record to disbelieve them. The recovery has been established, which points towards the involvement of accused persons in the commission of offence.
79. Ld. Defence counsels submits that this e-rickshaw has never been produced in the court. Prosecution has alleged that it was stolen from outside the court when it was being brought to the court for production. ld. Counsel submitted that this e-rickshaw was seized along with the ignition key. If e-rickshaw has been taken away that ignition key should have been produced in the court to show that the e-rickshaw was seized. There is no chasis number of the e-rickshaw mentioned in the seizure memo. There is no evidence to show that this e-rickshaw was belonging to the deceased or was driven by him. There is no document that this e-rickshaw was purchase by Uttam Prashad Singh or he used to ply it after taking it on hire. Ld. Defence counsel submitted that even otherwise, so far as Dayanand, Ajay and Monu are concerned there is no evidence that they got recovered this e-rickshaw or it was recovered at their instance. So far as the recovery from the godown is concerned there is no document on record that the same was in possession of the accused Manoj. Even otherwise that godown was lying open. The onus was upon prosecution to establish that the possession State Vs. Dayanand etc. SC No.252/17 :: 47 ::
was of the accused Manoj which prosecution has failed to establish. Ld. Counsel submitted that under the circumstances the benefit be given to the accused persons and they be acquitted.
80. After hearing the arguments and going through the record I found that in this case there is one witness Jayant Kumar examined as PW-12. According to him Uttam Prasad Singh was working as watchmen with him and he used to perform his duty in the night and during day he used to do some other work.
81. During cross-examination he has stated that on08.12.2016 he along with Saroj went to police station to inquire about the e-rickshaw of Saroj. There is no evidence on record to show as to whom that e-rickshaw belong and whether deceased was plying that e-rickshaw or any e- rickshaw. Even PW-12 does not say that deceased used to ply e-rickshaw. Saroj has not been cited as a witness.
82. Prosecution alleges the recovery of one e-rickshaw at the instance of Manoj. It is important to note that there is no evidence to link the accused persons with that recovery. There are only disclosure statements of Dayanand, Ajay and Monu but in pursuance to that disclosure statement there is no recovery. No doubt they disclosed the name of Manoj but Manoj was not apprehended at that time and even the State Vs. Dayanand etc. SC No.252/17 :: 48 ::
recovery could not be effected from or at the instance of Dayanand, Ajay and Monu. Later on on 06.04.2017 Manoj was apprehended and he got recovered that e-rickshaw. According to the story that e-rickshaw was stolen but the e- rickshaw was not shown to him. Jayant Kumar was examined as PW-12. He also speaks of e-rickshaw but e- rickshaw was also not shown to him. There is no evidence to show that the e-rickshaw was of the deceased or was driven by the deceased. The onus was upon the prosecution to prove and establish this fact which the prosecution has not been able to bring on record. Infact there is no evidence to show that deceased used to drive any e-rickshaw. Under the circumstances even if it is presumed that one e-rickshaw was got recovered by Manoj or at the instance of Manoj that does not link him or any other accused with the commission of offence. The onus was upon the prosecution to prove and establish this fact which in my opinion miserably failed.
83. There is another circumstance of pointing out of place of occurrence. It is important to note that this place of occurrence was already known to the police and hence there is no new discovery in pursuance to the disclosure or by pointing out by the accused persons. Even if for the sake of arguments it is presumed that they pointed out the place of occurrence that does not establish or prove that they had the State Vs. Dayanand etc. SC No.252/17 :: 49 ::
special knowledge of that place as they are resident of the same area. Even otherwise this single circumstance does not by itself prove and establish the guilt of the accused.
84. There is no evidence brought on record that any of the accused i.e. Dayanand, Aajy and Monu robbed the deceased or caused injuries on his person with knives or sharp edged weapons. The onus was on the prosecution to prove and establish these facts, which the prosecution has failed.
85. As discussed above the present case is based on circumstantial evidence. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 held that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Dayanand etc. SC No.252/17 :: 50 ::
86. In view of this judgment it is clear that there must be a chain of circumstance, the chain must be complete, each circumstance has to be establish and proved. The circumstances so established and proved must be inconsistent with any hypothesis of innocence of accused which is not the case. The circumstances are not proved and established. The chain is not complete and the same is also not in- consistent with any hypothesis of innocence of accused. Keeping in view the above discussion in my opinion the onus which was upon the prosecution has not been discharged. The accused persons are therefore, acquitted. They be released on furnishing Personal Bond & Surety Bond in the sum of Rs.20,000/-each for a period of six months u/s 437A Cr.PC.
File be consigned to record room.
Digitally signed by
VIRENDER VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.03.12
BANSAL 18:10:11 +0530
Announced in the open court (VIRENDER KUMAR BANSAL)
today on 12.03.2018 ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Dayanand etc. SC No.252/17 :: 1 ::