State vs . on 30 August, 2011

[Cites 23, Cited by 0]

Delhi District Court

State vs . on 30 August, 2011

                                     1

            IN THE COURT OF Ms. RAVINDER KAUR  
    ADDL. SESSIONS JUDGE/ SPECIAL JUDGE (NDPS) 
                    DWARKA COURTS, NEW DELHI


                                                                          SC No. 48/1/10
                                                                           FIR No. 47/10
                                                             P.S: Jaffar Pur Kalan
                                                         Under Section : 302 IPC
State 

        Vs. 

        Jogender @ Kala
        S/o Late Sh. Bhim Singh, 
        R/o VPO Rawta, 
        New Delhi. 


Date of Institution                        :               06102010
Date of Decision                           :               30082011                  




                                 JUDGMENT

1 The accused has faced trial under Section 302 IPC. 2 The prosecution case is that on 25.06.2010 at about 3.30 p.m, Inspector Baltej Singh Malik, the SHO P.S Jaffar Pur FIR No.47/10 State Vs Joginder @ Kala Page No. 1 2 Kalan was present in the room of the Duty Officer when one person whose name on enquiry revealed to be Jogender @ Kala S/o Sh. Bhim Singh, R/o Village Rawta, Delhi ie the accused came to the reporting room holding in his hand one white colour plastic gunny bag from which 'danda' was visible outside. On coming to the reporting room, he said that he wanted to meet 'bade sahab'. Inspector Baltej Singh Malik told him that he was the SHO. Then Jogender @ Kala i.e. the accused disclosed to him that he had killed his Bhabhi Anita with the 'Gandasa'. The gunny bag in his possession was checked and in the lower portion of the 'danda', a 'Gandasa' was fixed with nuts and bolts which was smeared with blood. He further informed the SHO that he had killed his Bhabhi Anita to save the reputation of his family (khandan). The said information was passed on by Inspector Baltej Singh Malik through telephone to the ACP, Najafgarh and a message was sent to the crime team through control room. 3 Inspector Baltej Singh Malik along with accused Jogender @ Kala, SI Hazari Lal, SI Naresh Kumar, H.Ct. Amar FIR No.47/10 State Vs Joginder @ Kala Page No. 2 3 Singh, H.Ct. Ram Mehar and a private photographer in an official gypsy left for the spot at 3.45 p.m and reached there at about 4 p.m. On reaching there, they found that the main gate of the house of the accused was lying open. The accused opened the latch of the room which was built in the rear portion of the house and in the said room, the dead body of one female was lying with her face downwards. The accused told them that the said dead body is of his Bhabhi Anita whom he had killed at around 11 a.m. The dead body was searched casually and it was found that on the rear portion of the neck, back and left elbow and wrist, there were wounds appeared to have been caused with a heavy weapon. There was also sufficient blood found on the sofa lying near the bed. There were blood spots on the wall. No other person was found present in the house. The crime team reach there and inspected the site. 4 The rukka was prepared by the SHO and a case under Section 302 IPC was got registered and the site plan of the spot without scale was prepared by the Inspector Baltej Singh. The dead body was sent to the DDU hospital. The FIR No.47/10 State Vs Joginder @ Kala Page No. 3 4 mattress spread on the bed, sofa cover and the polythene lying on the sofa which were all blood stained, the blood from the floor and blood spots from the wall were lifted and seized. 5 The sketch of the 'Gandasa' produced by the accused was prepared and then it was seized vide seizure memo, the accused was arrested. The post mortem was got done on the dead body of the deceased. The exhibits relating to the deceased were also collected from the hospital and were deposited in the malkhana.

6 During investigation, it was revealed that one Harish S/o Rakesh was residing in the neighbourhood of Anita ( now deceased) against whom Anita had lodged an FIR No. 11/10 u/s 354/452/506/34 IPC with P.S J.P Kalan on 22.02.2010 and thereafter Narender, the husband of Anita had lodged a police complaint against Harish with the allegations that Harish had kidnapped his wife and consequently the FIR No. 33/10 u/s 365 IPC was registered on 22.04.2010. 7 During investigation, it was further revealed that in the said case, Anita had given a statement u/s 164 Cr.P.C in FIR No.47/10 State Vs Joginder @ Kala Page No. 4 5 the Court that she had gone with Harish with her free will and wanted to live with him and that she had threat to her life from her husband.

8 Sh. Ramesh, the father of Harish had got him sent to Gurgaon jail in some case under pressure from the inlaws and brother of Anita. Ramesh verified the whereabouts of Anita from Harish and thereafter Rakesh along with Narender, the husband of Anita and her brother as well as some other persons brought Anita from Bareily to village Rawta, Delhi, on 24.06.2010. That the family members of the accused Jogender during investigation, informed that they were not present at the spot at the time of the incident.

9 During investigation, the post mortem report was collected and as per the same, the cause of death was "due to coma caused by cut down of spinal cord at cervical level by heavy, broadened and sharp edged weapon like Garasa etc." 10 The subsequent opinion was obtained from the autopsy surgeon about the use of 'Gandasa' produced by the accused Jogender @ Kala and the autopsy surgeon gave the FIR No.47/10 State Vs Joginder @ Kala Page No. 5 6 following opinion to this effect :

"After examination of weapon of offence, the maximum surface of the blade was stained with blood like material and little long scalp hair was stuck on its surface. The whole blade was rusted and dark coloured. The peripheral length of the blade was 48cm and width was 12 cm at its mid part. The edged surface (peripheral) was sharp and appeared semi circular. The basal surface was blunt and clamped by screw on bamboo stick. The total length of the bamboo stick was 117 cm with circumference of 9 cm at free end and 12 cm at fixed blade side".

During investigation, the exhibits were sent to FSL, Rohini, Delhi.

11 As per the chargesheet, the deceased was the Bhabhi of the accused Jogender @ Kala and she had eloped with Harish and the accused felt that it was an insult to him as well as to his family and in a planned manner, he killed his FIR No.47/10 State Vs Joginder @ Kala Page No. 6 7 Bhabhi Anita.

12 After completion of the investigation, the charge sheet was filed in the Court for trial of the accused under Section 302 IPC. Later on, the FSL report was collected by the IO and filed on record.

13 On the basis of material on record, charge under section 302 IPC was framed against the accused on 04.05.2011 to which he pleaded not guilty and claimed trial. 14 The prosecution in support of its case examined total number of 25 prosecution witnesses.

15 PW1 Ct. Hardeep Singh had prepared the scaled site plan of the spot after taking rough notings of the spot at the instance of Inspector Baltej Singh on 16.07.2010. He proved the scaled site plan as Ex.PW1/A and the rough notings as Ex.PW1/B and the carbon copy of the site plan having his notings in original as Ex.PW1/C. 16 PW2 Sh. Hari Om is the brother of the deceased Anita who deposed that on 25.06.2010, he had received an information that his sister Anita has been murdered by FIR No.47/10 State Vs Joginder @ Kala Page No. 7 8 someone and then, he reached her matrimonial house where he found that the police officials were present there. The accused Jogender @ Kala who is the brother of his brother in law (jeeja) Narender was also present along with his other family members.

He further testified that he had identified the dead body of his sister at the spot. The photographs of the dead body were taken by the police officials. That thereafter he along with the family members of his brotherinlaw Narender were asked by the police officials to overturn the dead body of the deceased Anita for taking her photographs and he along with the accused Jogender @ Kala helped the police officials in overturning the dead body of Anita. That after the photographs of the dead body were taken from front side, 23 police officials kept the dead body in a dead body cover with the help of accused Jogender @ Kala and thereafter kept the dead body in a police vehicle.

He further deposed about lifting of the exhibits after removing the dead body of his sister from the spot. He FIR No.47/10 State Vs Joginder @ Kala Page No. 8 9 further stated that the police officials had removed the double bed on which the dead body was lying as at that time some blood from the dead body of his sister had fallen on the floor. He stated that when the police officials had removed the bed, they found one blood stained 'Gandasa' lying under the bed and the same was taken away by the police when they left the spot. He further stated that the clothes of the accused and the witness got blood stained when they had helped the police officials in the proceedings.

He further deposed that he was directed by the police to reach the P.S on the same day in the evening and there, his signatures were obtained on 23 blank papers. He also deposed that on the next day, he had identified the dead body of his sister at DDU hospital vide his statement Ex.PW2/A and he had also signed on the application Ex.PW2/B made by the IO for conducting post mortem on the body of the deceased.

During the course of his testimony, PW 2 identified the 'Gandasa' as Ex.P1 and deposed that it was the FIR No.47/10 State Vs Joginder @ Kala Page No. 9 10 same Gandasa which was seized by the police. 17 PW2 was declared hostile by the prosecution as he did not support the case of the prosecution and was crossexamined at length by the Ld. Addl. PP for the State. He denied that his statement was recorded by the police on 26.6.2010 correctly on his narration. He denied that statement Mark PW2/PA dt. 26.06.2010 was made by him to the police. He denied that he had stated to the police that his sister was having illicit relations with one Harish, residing in her neighbourhood in village Rawta and his brother in law Narender had told him several times about her illicit relations with Harish.

He also denied that on 08.04.2010 he was told by his jeeja Narender that his sister Anita had eloped with his neighbour Harish and that he along with other relatives had tried to search her at various places. He volunteered that his brother in law Narender had told him that one Harish had kidnapped Anita as told to him by Hitesh, the son of the deceased and an FIR No. 33/10 was registered with P.S J.P FIR No.47/10 State Vs Joginder @ Kala Page No. 10 11 Kalan at the instance of Narender. He denied that he was informed that earlier Harish and his friend Devender Kumar had tried to molest Anita and a case vide FIR No. 11/2010 was registered with P.S J.P Kalan on the statement of Anita. He also denied that on 23.06.2010, he along with his relatives had brought Anita from village Mangepur, Bareily, U.P. and had reached Delhi on 24.06.2010.

18 PW 2 voluntarily stated that on 24.06.2010, Anita herself had come back to her matrimonial home and she was very scared at that time and that when he came to know that she had returned, he went to her matrimonial home where she told him that she was kidnapped by Harish and he had also threatened to kill her and her children and that she was forced by him to give the statement in Court in case FIR No. 33/10 on the assurance of Harish that thereafter he would leave her to live peacefully with her husband and children. He further volunteered that his sister also told him at that time that even after she had given the statement in his favour, she was not spared by Harish and he again forcibly took her to Himachal FIR No.47/10 State Vs Joginder @ Kala Page No. 11 12 Pradesh from where, she somehow managed to run away in his absence and came back. She further told him that she was very much scared of Harish and his associates due to their threats and as such, she even refused to approach the police. PW 2 denied that he had stated before the police that he came to know that his sister was killed by the accused Jogender @ Kala. He denied that his brotherinlaw Narender had not informed him that Anita has been murdered by someone or that he and the accused Jogender @ Kala had not kept the dead body of his sister Anita in the dead body cover and thereafter in the police vehicle. He also denied the suggestion of the prosecution that the police officials had not removed the bed in his presence and did not recover any blood stained 'Gandasa' lying under the bed. He also denied that the clothes of the witness and the accused were not blood stained during that process.

During his crossexamination by the Ld. defence counsel, PW 2 stated that his sister Anita was having good relations with her inlaws and did not have any illicit FIR No.47/10 State Vs Joginder @ Kala Page No. 12 13 relations with Harish. Rather he stated, that his sister was harassed by Harish and he used to threaten to kill her and her children and to spoil her matrimonial life if she did not accompany him or have relations with him and he wanted to marry her also.

19 PW3 Sh. Narender is the husband of the deceased Anita who also testified that on 25.06.2010, he was telephonically informed by some neighbour from STD booth that his wife Anita had been murdered by someone, so he made a call to his brotherinlaw Hari Om and asked him to reach his house. He stated that he reached his house at about 4 p.m and 45 police officials were also present there and he identified the dead body of his wife partially lying on the bed and sofa in the room of his house.

PW 3 too deposed on the lines of the testimony of PW2 Hari Om that the accused Jogender @ Kala, his brother and his brotherinlaw Hari Om had helped the police officials in overturning the dead body of Anita and thereafter the photographs of the dead body of his wife were taken from FIR No.47/10 State Vs Joginder @ Kala Page No. 13 14 the front side and that the police officials with the help of accused Jogender @ Kala and his brotherinlaw Hari Om kept the dead body of his wife in a dead body cover and then in a police vehicle. He also deposed that the police officials had removed the bed on which the dead body was lying and had recovered one 'Gandasa' lying under the bed. He also stated that the clothes of the accused Jogender @ Kala and Hari Om were got blood stained while they were helping the police in their proceedings.

PW 3 further stated that he along with his brother Surender, Jogender and their mother Shakuntla were taken to the P.S where their mother Shakuntla was beaten by the police as she had first seen the dead body of Anita and was being suspected for commission of murder of Anita. He stated that he and his brothers were also beaten up by the police when they objected to the conduct of the police officials and the accused Jogender @ Kala became aggressive and threatened to lodge a complaint against them for their misbehaviour. He stated that there was hot discussion FIR No.47/10 State Vs Joginder @ Kala Page No. 14 15 between the police officials and the accused Jogender @ Kala who was then threatened by the police officials of dire consequences and was put behind bars and was falsely implicated in this case.

PW 3 too was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP for the State, however he denied that he made statement Mark PW3/PA to the police on 26.06.2010 and was confronted with the entire statement. He denied that he stated to the police that his wife had eloped with Harish on 08.04.2010 and that on 23.06.2010, he along with other family members including Rakesh, the father of Harish, had gone to Bareily and had brought Anita back to Delhi on 24.06.2010. He stated that on 24.06.2010, Anita had voluntarily came back and she was scared and told him that she was kidnapped by Harish and was also threatened by him to be killed and that she was forced to give statement in the Court in the case FIR No.33/10. He denied the suggestion that the clothes of the accused were not got blood stained on account of overturning the dead body and FIR No.47/10 State Vs Joginder @ Kala Page No. 15 16 then putting the same in a dead body cover while helping the police officials or that no blood stained 'Gandasa' was recovered from under the bed.

20 PW4 Ct. Om Prakash is a formal witness who had joined the investigation of this case along with the IO on 25.06.2010 and had removed the dead body to the mortuary of the DDU hospital.

21 PW5 Smt. Shakuntla is the motherinlaw of the deceased Anita. She testified that on 25.06.2010, at about 12/12.30 p.m, she had gone to the fields and came back at about 2/3 p.m, when she found the doors of her house lying open. When she entered the house, she found her daughterin law Anita in the pool of blood in her room. She raised alarm and some neighbourer collected there. She gave the mobile number of her son Narender to someone to call him. She requested some of the neighbours to call her younger son Jogender @ Kala from his shop situated at the main road near bus stop, so that Anita could be removed to the hospital. Her son Jogender tried to make a call to the police from PCO, but FIR No.47/10 State Vs Joginder @ Kala Page No. 16 17 he could not succeed, as disclosed to him by Jogender @ Kala. Thereafter he went to the P.S at Rawta Mor to inform about the incident. After sometime, he returned to the spot along with the police.

PW 5 stated that Hari Om i.e. the brother in law of her son Narender and her sons Narender and Surender and other family members also reached at her house. The police officials reached there and took the dead body of Anita from the room and thereafter the dead body was overturned for taking her photographs with the help of accused Jogender @ Kala and Hari Om, thereafter they both had helped the police in keeping the dead body of Anita in the dead body cover and then removing the dead body to the police vehicle. She also deposed about seizure of sofa cover and two gudras as well as lifting of blood from the floor and blood stained pulanda from the room. She further stated that when the police officials had removed the bed, they found one blood stained 'Gandasa' lying under the bed which was taken away by the police. She stated that the clothes of the accused Jogender @ Kala and Hari Om FIR No.47/10 State Vs Joginder @ Kala Page No. 17 18 got blood stained during the proceedings.

PW5 further stated that she along with her sons Surender, Narender and Jogender were taken to P.S where she was suspected of murder of Anita and was beaten by the police and when her sons objected, they were also beaten up by the police and the accused Jogender @ Kala became aggressive and threatened to lodge a complaint against the police officials for their mis behaviour. At this, there was some hot discussion between Jogender @ Kala and the police officials. Accused Jogender @ Kala threatened the police officials of dire consequences and he was put behind the bars. Later on, some villagers and relatives reached the P.S, thereafter she and her family members except accused Jogender @ Kala were allowed to leave. The police had assured that they would leave Jogender @ Kala on the next day since he had misbehaved with them, but later on he was falsely implicated in this case.

PW 5 was also declared hostile by the prosecution and was crossexamined at length. She was FIR No.47/10 State Vs Joginder @ Kala Page No. 18 19 confronted with her statement Mark PW5/PA, but she denied that she had given any such statement to the police that Anita had eloped with one Harish S/o Rakesh, about 2 1/2 months before the incident and was brought back by Hari Om and Narender in the morning of 24.06.2010 from U.P. She voluntarily stated that Anita was kidnapped by Harish on 08.04.2010 and this fact was told to her by her grandson, Hitesh and FIR No. 33/10 was got registered with P.S. J.P. Kalan by her son Narender. That even earlier also, Harish and his friend Devender Kumar had tried to molest Anita and a case vide FIR No.11/2010 was registered with P.S J.P Kalan, which case is still pending in the Court. She further voluntarily stated that Anita herself had returned to her house and she was very much scared at that time and she told them that she was kidnapped by Harish and he had also threatened to kill her and her children and she was forced to give statement in the Court in the case vide FIR No. 33/10. She further voluntarily stated that Anita had further told them that even after she had given statement in favour of Harish, she was not FIR No.47/10 State Vs Joginder @ Kala Page No. 19 20 spared by him and he again forcibly took her to Himachal Pradesh, from where she somehow managed to run away in his absence and came back. She volunteered that Anita told them that she was very much scared of Harish and his associates due to their threats, and due to this reason, she refused to approach the police.

PW 5 also denied the suggestion of the prosecution that the clothes of the accused Jogender and Hari Om were not got blood stained on account of joining of the proceedings or that the police did not find blood stained Gandasa lying under the bed.

PW 5 was crossexamined by Ld. counsel for the accused and stated that her son Narender along with his wife Anita (now deceased) and their two sons Hitesh and Punit, were living happily and peacefully and that Anita was not having any relations with Harish. She further stated that Anita was being harassed by Harish who oftenly used to threaten her and her children and threatened her to spoil her life, if she would not accompany her. She further stated that FIR No.47/10 State Vs Joginder @ Kala Page No. 20 21 her son was falsely implicated as he had hot conversation with the police when she and her sons were beaten by the police officials in the police station.

22 PW6 Sh. Surender Kumar is the elder brother of the accused Jogender @ Kala and brotherinlaw of the deceased. He deposed on the lines of the testimony of PW5 Smt. Shakuntla to the effect that on the date of incident, he had gone to the hospital at village Budhera in Haryana and on his return in the evening, he came to know that Anita, wife of his brother Narender was murdered and the police had visited his house. He stated that on the same day, he himself, his brothers Jogender and Narender along with his mother were called to the police station where the police officials had misbehaved with her mother and consequently the accused Jogender @ Kala gave beatings to a male police official. Later on, Jogender @ Kala was sent to the lock up and others were released in the evening, and the accused Jogender @ Kala was falsely implicated on account of the beatings given by him to the police official.

FIR No.47/10 State Vs Joginder @ Kala Page No. 21 22

PW 6 too was declared hostile by the prosecution and was crossexamined by Ld. Addl. PP. In the crossexamination, he denied the suggestion that in his statement u/s 161 Cr.P.C, he had stated that Anita had eloped that their neighbour Harish S/o Rakesh on 08.04.2010 or was brought back by Narender and Hari Om on 24.06.2010 from U.P. He voluntarily stated that she returned to her house on her own and told them that she was kidnapped by Harish and that he had also threatened to kill her and her children and that Anita had informed them that she was forced by Harish to give statement in the Court in case FIR No.33/10. 23 PW7 Sh. Rakesh is the father of Harish who testified that on 23.06.2010, Hari Om, the brother, Narender, the husband and one uncle of Anita had visited his house and took him along with them to Shahjahanpur, near Barieily and from there, they had brought Anita back to her house on the morning of 24.06.2010 and on 25.06.2010, he heard somebody shouting 'Anita Maar Di Anita Maar Di'. He stated that he did not come to know who had killed Anita. He admitted that the FIR No.47/10 State Vs Joginder @ Kala Page No. 22 23 case FIR No.11/10 u/s 354/452506/34 IPC was registered with P.S J.P Kalan on 22.02.2010 by the deceased Anita against his son Harish. He further admitted that a case vide FIR No. 33/10 was registered by Narender, the husband of Anita with P.S J.P Kalan and in that case, the statement of Anita was recorded by the Magistrate and she had made a favourable statement about Harish. He claimed that he was not aware of the illicit relations between Anita and Harish.

PW 7 was also declared hostile by the prosecution. In crossexamination by Ld. Addl. PP, he denied that in the statement Ex.PW7/A he had mentioned that Anita was having illicit relations with his son Harish and for this reason, the family members of Narender, the husband of Anita was annoyed with her. He was confronted with his statement Ex.PW7/PA on all the material particulars. 24 PW8 Sh. Raj Karan is the uncle of Harish and brother of PW7 Sh. Rakesh. As per his testimony, he had accompanied Narender, his brotherinlaw Hari Om and the uncle of Hari Om on 23.06.2010 and had brought Anita from FIR No.47/10 State Vs Joginder @ Kala Page No. 23 24 his village, ahead of Shahjahanpur. That on 25.06.2010, in the morning, on his return from his fields at about 4.30/5p.m, he saw public and the police standing outside the house of Narender and on enquiry, it was revealed that they had killed their daughterinlaw. This witness was also declared hostile by the prosecution and he did not support the case of the prosecution despite crossexamination by Ld. Addl. PP. He denied that Narender informed him that Anita and Harish were having illicit relationship or that they both were found caught talking on mobile phone or that family members of Anita threatened her severely and also gave beatings to her, but she did not mend her ways.

25 PW9 ASI Khazan Singh was the Incharge, crime team who inspected the spot and proved the report as Ex.PW9/A. During crossexamination by Ld. defence counsel, he stated that he was not aware if the dead body was put in straight position by the police with the help of the accused Jogender @ Kala. However, he admitted that the accused was present in the house when they had reached there. FIR No.47/10 State Vs Joginder @ Kala Page No. 24 25 26 PW10 Ct. Raj Kumar was the member of the crime team and had taken the photographs of the double bed and the spot and proved the same as Ex.PW10/P24 to P46 and the negatives of the said photographs as PW10/P1 to P23. 27 It is important to mention here that Dharamvir Singh has been inadvertently mentioned as PW12 and no witness with the number PW11 has been examined. PW12 Sh. Dharmvir Singh had identified the dead body of the deceased Anita in the DDU hospital.

28 PW13 SI Naresh Kumar had joined the investigation of this case along with Inspector Baltej Singh Malik on 25.06.2010. He testified that on 25.06.2010, he along with SI Hazari Lal, H.Ct. Amar Singh, H.Ct. Ram Mehar, accused Jogender @ Kala and a private photographer had gone to the spot in government vehicle as the accused had disclosed that he had killed his Bhabhi Anita and they had gone to verify this fact. He stated that the accused had visited the P.S holding a plastic bag containing blood stained 'Gandasa', in his hand.

FIR No.47/10 State Vs Joginder @ Kala Page No. 25 26

PW 13 stated that the accused had led them to his house at village Rawta and on reaching there, the latch of the outer door was open and on entering inside a room which was in the rear portion of the house, they found the dead body of a female lying on the bed which had several injuries on her person. The accused identified the dead body of his Bhabhi Anita and stated that at about 11 a.m on that day, he had killed her with the help of Gandasa. He deposed about the photographs of the spot being taken by the private photographer at the instance of the IO Inspector Baltej Singh and about lifting of the exhibits and thereafter sealing them with the seal of BS.

PW 13 further stated that the 'Gandasa' was also sealed in the same plastic bag which was held by the accused and the same was seized vide seizure memo Ex.PW13/A. He deposed about lifting of the blood from the spot and seizing them vide seizure memo Ex.PW13/B. PW 13 further stated that the crime team had reached the spot at about 4.45 p.m and had inspected the FIR No.47/10 State Vs Joginder @ Kala Page No. 26 27 spot and the photographs were got clicked by the photographer of the crime team. He further stated that the accused was wearing blood stained clothes, which were got seized vide memo Ex.PW13/C. PW 13 is also a witness to the arrest of accused. He proved the arrest and personal search memo as Ex.PW 13/PX and Ex.PW 13/PX1. The accused also made the disclosure statement Ex.PW13/PX, and two unscaled site plans were prepared by the IO. He further testified that thereafter the crime team left the spot and the dead body was sent to the mortuary of DDU hospital through Ct. Om Prakash and the accused was got medically examined and then, they returned to the P.S. PW 13 further stated that on 26.06.2010, he along with SI Hazari Lal had gone to the DDU hospital for getting the postmortem done on the dead body of the deceased and before the postmortem started, SI Udai Singh had also reached the hospital along with the sealed pulanda containing weapon of offence for seeking opinion of the autopsy surgeon, and that he had produced the inquest papers before the FIR No.47/10 State Vs Joginder @ Kala Page No. 27 28 autopsy surgeon for opinion with regard to the weapon of offence. He further deposed that after postmortem, he was handed over three sealed pulandas sealed with the seal of DFMT DDU hospital, which were seized vide memo Ex.PW13/PX6.

PW 13 stated that the pulanda containing Gandasa was retained by the autopsy surgeon and he had requested him to collect the postmortem report, opinion regarding the weapon of offence and the weapon of offence later on and that he collected the same on 07.08.2010 and produced before the IO which were seized vide seizure memo Ex. PW 13/PX7.

During further examination, he identified the accused and the Gandasa Ex.P1 as the same which was found in possession of the accused when he had visited the P.S and was seized in his presence. He proved the sketch of the Gandasa prepared by Insepctor B.S Malik on butter paper as Ex.PW13/PX10, the clothes of the deceased as Ex.P2 and P3 and the clothes of the accused as Ex.P4 and P5, seized vide FIR No.47/10 State Vs Joginder @ Kala Page No. 28 29 seizure memo Ex.PW13/C. He proved the other exhibits lifted from the spot as Ex.P6 to P9.

29 PW14 Sh. Harish testified that Anita W/o Narender @ Gyani was residing in his neighbourhood. That family of Narender including his wife and children used to visit his house and he also used to visit their house and that Narender and his mother used to beat Anita. He further stated that he was in jail when Anita had died and after one month, when he returned to his village, he came to know from his friends that accused Jogender @ Kala had murdered Anita.

PW 14 was declared hostile by the prosecution however, he denied that his statement Ex.PW14/PA was recorded by the police on 05.09.2010. He also denied that he had stated before the police that 'Gyani was having suspicion that he was having illicit relationship with Anita, or that due to this reason, Anita was pressurized by her husband and other family members to lodge a false case of eve teasing and beatings against her, that despite this, Anita continued meeting her, that thereafter Gyani started beating his wife or FIR No.47/10 State Vs Joginder @ Kala Page No. 29 30 that on 07.04.2010, Gyani had beaten Anita, that he was informed telephonically by Anita regarding the beatings given to her by Gyani, that he was telephonically informed by Anita when he was at the house of his Bua at Jharsa, Gurgaon, that she was going to Najafgarh, that she told him to meet her at Sai Baba Mandir, Najafgarh or that he came to his village Rawta from the house of his Bua at about 11 a.m or that from there, he went to Sai Baba Mandir on the motorcycle and there at the temple, Anita met him and she told him while weeping that Gyani would kill her, that she insisted him to accompany her, that at this, he along with her went to Himachal Pradesh or that there they stayed for many days, that he was in contact with his friends telephonically, that he was told by his friends that Gyani had lodged a false complaint against him regarding kidnapping of Anita, that Anita was disturbed, as such, he did not want to return to Rawta, that with the intend to falsify the version of Gyani, she told that she would appear in the Court to give her statement, that they along with Anita came to Delhi and met with lawyer, that Anita gave her statement in the FIR No.47/10 State Vs Joginder @ Kala Page No. 30 31 Court, that thereafter they both went to Puna, that after few days, he was called by his father to Gurgaon, that he along with Anita came to Gurgaon, that leaving Anita outside the Court at Gurgaon, he went to his advocate to meet his father, that he gave the address of his old servant Raju to her and told her that if something wrong happens with her, she should go to Raju at his village, that nobody would come to know about this, that there was no danger to her with Raju at his village, that on the same day, he was produced in the Court by his father, that there his bail was got cancelled, that he was sent to jail, or that after few days, his father came to meet him in the jail, that he told him the address/whereabouts of Anita, that after few days in the jail itself, he came to know that Anita was murdered by her brother in law Jogender @ Kala, that on 05.09.2010, he along with his father reached at P.S J.P Kalan on being called by the IO of this case and that on that day, his statement Mark PW14/PA was recorded by the IO. 30 PW15 SI Udai Singh is a formal witness who had visited the DDU hospital on 26.06.2010 and had taken the FIR No.47/10 State Vs Joginder @ Kala Page No. 31 32 sealed pulanda with the seal of BS containing Gandasa to the mortuary of the DDU hospital and handed over the same to SI Naresh vide R/C No. 16/21/10 Ex.PW15/A. 31 PW16 Inspector Baltej Singh is the IO of the case. He testified that on 25.06.2010 he was posted as SHO P.S J.P Kalan. At about 3.30 p.m, one person came to the room of the duty officer and told that he wanted to meet the SHO sahab. At that time, he ie PW 16 was also present in the room of the duty officer and he informed that person that he is the SHO of P.S J.P Kalan. Thereafter the said person informed him that he had committed the murder of his Bhabhi with Gandasa. At this, on the asking of PW 16 that person disclosed his name as Jogender @ Kala i e the accused. He was also carrying one plastic/plastic gunny bag in his hand from which the wooden handle of the was coming out and could be seen. The plastic bag was checked by him which was found containing one Gandasa fixed with wooden danda with nuts and bolts. There was sufficient blood sticked to the Gandasa and some hair were also sticked to the Gandasa on FIR No.47/10 State Vs Joginder @ Kala Page No. 32 33 the blood. This information was brought to the notice of ACP. Crime team was also called to reach at village Rawta through control room. Thereafter he along with his team, accused and a private photographer reached at the spot i.e at the house of accused at village Rawta to verify the information given by him. He recorded DD No. 16 A, the true copy of which is Mark PW16/A before leaving the P.S in an official gypsy. The house of the accused was situated on the outer road of the village. The main gate of the house of accused which was made up of iron was found open. Accused led the police party to the last room of his house which was on their left side while entering. There was a latch put up on the door of the said room. Accused himself opened the door of the said room. When they entered the room, they saw that one dead body was lying on the bed with its face downwards (ondhemuh). There were injury marks on the back of the neck, elbow and shoulder of the dead body and while showing the dead body, accused informed them that the said body was of his Bhabhi Anita who had been murdered by him. There was one sofa near the bed. There were FIR No.47/10 State Vs Joginder @ Kala Page No. 33 34 blood stains on the cover of the sofa, gudre of the bed and one polythene of blue colour which was lying on the sofa and also on the floor of the room. There were blood stains (chhinte) on the wall of the room above the sofa. Nobody was found present in the house. He had tried to find out about the whereabouts of the inhabitants of the house, however he could not find any clue. He got the photographs of the spot clicked from the private photographer. The said photographs are Ex.PW16/A1 to A3 (exhibition of the photographs is not disputed by Ld. defence counsel). In the meanwhile, the officials of the crime team had also reached at the spot and had inspected the spot. Thereafter he prepared the rukka Ex.PW16/B at 5.20 p.m on DD No.16 A Mark PW16/A. He sent H.Ct. Amar Singh to P.S along with original rukka for registration of the FIR. Thereafter ASI Khazan Singh, Incharge crime team prepared his report already Ex.PW9/A and handed over the same to him. Ct. Raj Kumar had taken the photographs of the spot who was with the crime team. He had prepared site plan already Ex.PW13/PX4 showing the phirni (outer area of the village) FIR No.47/10 State Vs Joginder @ Kala Page No. 34 35 and the site plan of the recovery of the dead body already Ex.PW13/PX3, both bearing his signatures at pt. X. In the meanwhile, H.Ct. Amar Singh came back to the spot after the registration of formal FIR.

During the course of his testimony PW 16 proved DD No. 16 as Ex.PW16/C. He further deposed about lifting of exhibits from the spot and their seizure vide memos Ex. PW 13/B. PW 16 further proved the application Ex.PW16/D addressed by him to the Incharge, mortuary, DDU hospital, for preservation of the dead body and deposed that he sent the dead body along with his application through Ct. Om Prakash in an official TATA 407 and got it preserved at about 8.50 p.m vide endorsement from pt. A to A on his application Ex.PW16/D. He further deposed about the arrest of accused vide memo already Ex.PW13/PX and that he conducted his personal search vide memo Ex.PW13/PX1 and recorded his disclosure statement already Ex.PW13/PX2. He testified that the sketch of the Gandasa already Ex.PW13/PX10 was FIR No.47/10 State Vs Joginder @ Kala Page No. 35 36 prepared by him on a butter paper. Thereafter he had wrapped the blade of the Gandasa in a transparent polythene and then kept back the Gandasa in the same plastic katta (gunny bag) and thereafter the plastic katta (gunny bag) was sealed with the help of tape, with the seal of BS and was seized vide memo already Ex.PW13/A. He further deposed that the clothes i.e pant of matmaila colour and the shirt of white and black strips which was the accused was wearing and which were blood stained were got changed and the said clothes were kept in a cloth pulanda which was sealed with the seal of BS and were seized vide seizure memo already Ex.PW13/C. He also deposed that the case property was deposited in the malkhana in intact condition.

PW16 testified that on the next day i.e. on 26.06.2010, the postmortem was got conducted on the deadbody of deceased and that on the same day, he had directed SI Udai Singh to take the sealed pulanda containing Gandasa to hospital and to hand over the same to SI Naresh who was already in the mortuary of the hospital for post mortem FIR No.47/10 State Vs Joginder @ Kala Page No. 36 37 proceedings to seek opinion about the weapon of offence.

PW 16 further testified that on 16.07.2010, he got the spot inspected from Ct. Hardeep Singh. Asst. Draftsman who took the measurements of the spot on his instance and thereafter he had prepared scaled site plan already Ex.PW1/A on 19.07.2010 and handed over the same to me on 11.08.2010. He testified that on 07.08.2010, the post mortem report Mark PW16/A1, subsequent opinion for the consistency of weapon of offence Mark PW16/A2 and sealed pulanda containing Gandasa i.e. weapon of offence, duly sealed with the seal of DFMT DDU hospital along with the sample seal, were handed over to SI Naresh by Dr. Santosh which he had seized vide memo already Ex.PW13/PX7. Opinions of the doctor were placed on record on the case file and the sealed pulanda was deposited in the malkhana by SI Naresh. Further that during the course of investigation, he had collected the photographs already Ex.PW10/P24 to P46 from the photographer of the crime team and placed them on record. That on 31.08.2010, he had directed MHC(M) Narender Singh FIR No.47/10 State Vs Joginder @ Kala Page No. 37 38 to send the sealed exhibits along with the sample seal to FSL Rohini as per FSL form Ex.PW16/F. Ct. Yashpal was sent for depositing the exhibits with FSL, Rohini, vide R/C No. 26/21/10 already Ex.PW19/A and thereafter he came back along with the receipt already Ex.PW19/C. Later on, the FSL result Ex.PW16/G was received along with the forwarding letter. and FSL form on 06.01.2011 through Ct. Anuj along with the sealed exhibits. On receipt of the FSL result, he had filed the same in the Court vide my application Ex.PW16/H. During his examination, he identified the case property i.e. the small plastic bottle containing cotton wool swab having blackish stains along with fungal growth as Ex.P10, another small plastic bottle containing cotton wool swab having blackish stains as Ex.P11, another small plastic bottle containing cotton wool swab having blackish stains as Ex.P12, the 'Gandasa' as Ex.P1.

PW 16 further stated that during investigation, he had correctly recorded the statements of PWs Sh. Rakesh, already Ex.PW7/PA, of Sh. Hari Om FIR No.47/10 State Vs Joginder @ Kala Page No. 38 39 Ex.PW16/X1, of Sh. Narender Ex.PW16/X2 of Smt. Shakuntala Ex.PW16/X3, of Sh. Surender Kumar Ex.PW16/X4, of Sh. Raj Karan already Ex.PW8/A, of Sh. Harish Ex.PW16/X5.

32 PW17 SI Hazari Lal had accompanied SI Naresh Kumar to the mortuary of DDU hospital on 26.06.2010 for getting the postmortem done on the dead body of the deceased.

33 PW18 H.Ct. Amar Singh had joined the investigation of this case along with the IO Inspector Baltej Singh Malik and other staff. He deposed on the lines of the testimony of PW16 Inspector Baltej Singh Malik.

PW 18 also testified that he had taken the rukka to the P.S at about 5.20 p.m and got the FIR registered and returned to the spot at about 7 p.m along with the copy of FIR and original rukka.

34 PW19 H.Ct. Narender was working as MHC(M) on 31.08.2010 when he had sent nine duly sealed exhibits to the FSL, Rohini vide R/C No. 26/21/10 through Ct. FIR No.47/10 State Vs Joginder @ Kala Page No. 39 40 Yashpal. He was also the MHC(M) on 06.01.2011 when nine exhibits sent to FSL for opinion, were received back. He proved the relevant entries in the register No.19 as Ex.PW19/A to D. 35 PW20 H.Ct. Chhatarpal was working as Duty Officer with P.S J.P Kalan on 25.06.2010 from 4 p.m to 12 mid night. He recorded the FIR No. 47/10 u/s 302 IPC and proved the computerized copy of the same as Ex.PW20/A and made an endorsement on the rukka as Ex.PW20/B. He further admitted that on that day, he had also handed over the true copy of DD No.16 A to Inspector Baltej Singh on his request since it was recorded by Inspector Baltej Singh Malik in the roznamcha. 36 PW21 H.Ct. Narayan Singh was working as MHC(M) on 25.06.2010 when IO/SHO Inspector B.S Malik had deposited one sealed pulanda duly sealed with the seal of BS containing Gandasa and other sealed pulanda containing clothes of the accused, 3 duly sealed plastic boxes with the seal of BS. He proved the relevant entries in the register No.19 as Ex.PW21/A and Ex.PW21/B. 37 PW22 Ms. L. Babyto Devi is the Sr. Scientic FIR No.47/10 State Vs Joginder @ Kala Page No. 40 41 Officer from FSL, Rohini, Delhi, who had examined the exhibits of this case biologically and serologically and proved the Biology report as Ex.PW16/G and Serology report as Ex.PW22/A and also proved the forwarding letter handed over to Ct. Anuj Tomar along with the aforesaid reports as Ex.PW22/B. She also proved the photocopy of the forwarding letter received in the office of FSL, Rohini, along with exhibits, as Ex.PW22/C. 38 PW 23 Sh. Sumit Dass MM Dwarka Courts had recorded the statement of Anita U/s 164 Cr PC which he proved as Ex PW 23/B and the certificate of correctness as Ex PW 23/C. He further proved the application moved by the IO before Sh. N K Laka, MM Dwarka Courts for recording the statement as Ex. PW 23/A and the application of the IO seeking copy of the statement as Ex PW 23/D. 39 PW 24 Inspt O P Meena was the investigating officer of case FIR No. 33/10 U/s 365 IPC, PS J P Kalan. He testified that on the basis of the statement of Anita U/s 164 Cr PC Ex PW 23/B, where she had informed FIR No.47/10 State Vs Joginder @ Kala Page No. 41 42 the court that she was major and wanted to join the company of ;Harish, the accused in that case and had left the court in the company of her lawyer and also that in view of her statement U/s 161 Cr PC where she stated that she had gone with Harish of her free will since she was disturbed with the behaviour of her husband and other family members, after discussing the matter with her senior officer he moved the concerned court for cancellation of FIR No 33/10, referred above.

40 PW 25 Ct Yash Opal is a formal witness who had taken the exhibits of the present case to FSL on 31.8.2010 41 PW 26 is Dr. Santosh Kumar who had conducted the postmortem on the deadbody of deceased on 26.6.2010 and proved the postmortem report as Ex PW 26/F. He testified that on the external examination, the following injuries were found on the person of the deceased:

1 Chopping wound present on the upper part of neck adjacent to posterior hair line extended from FIR No.47/10 State Vs Joginder @ Kala Page No. 42 43 right ear to left ear (at the level of first cervical vertebra) cutting whole thickness of skin, muscles, soft tissue of neck, along with cut down of cervical verterba. Head is attached with neck by tag of skin and mandible at anterior part. The margins of the wound appear bevelled and regular. The cut ends of the large blood vessels of neck, muscles, larynx and pharynx and first cervical vertebra and spinal code are exposed. The whole tissue adjacent to wound covered by dark reddish clotted blood (the repetition of inflicting injury at same site could not be ruled out).

2 Chopping wound present on the upper part of back extended from left shoulder to right shoulder which measured 36 cm x 4 cm x bone deep. The margins appeared bevelling in nature with cutting whole thickness of skin, muscle of back and both scapula and reached up to bony surface of thoracic vertebra with partly cutting of both bones with FIR No.47/10 State Vs Joginder @ Kala Page No. 43 44 clotted blood present in and around the wound. 3 One incised wound of size 5 cm x 2.0 cm x bone deep present over the mid part of forehead with sharp and regular margins with clotted blood present in and around the wound.

4 Chopping wound present on lower one third of part of left fore arm with size of 15 cm x 8.0 cm x bone deep with bevelled margins. The whole thickness of skin muscles and partly cut down of underlying bones. The underlying muscles and tendons/fascia along with bones exposed with clotted blood present in and around the wound. 5 Chopping wound present on the left posterior aspect lower arm extending up to left elbow with bevelled and regular margins of size 12 cm x 8.0 cm x bone deep. The whole thickness of skin muscles and partly cut down of underlying bones. The underlying muscles and tendons/fascia along with bones exposed with clotted blood present in and FIR No.47/10 State Vs Joginder @ Kala Page No. 44 45 around the wound.

6 Along with above mentioned injuries many other imposing and intersected incised wounds found adjacent to above mentioned injuries due to lesser effect of attack.

He further testified that on the internal examination, the following injuries were found on the person of the deceased:

1 Neck : Hyoid Bone/Thyroid Cartilage/Cricoid Cartilage/Tracheal Rings and Mucosa/Any Foreign Body in Trachea : Larynx an pharynx cut down with tracheal lumen occluded by blood clots. 2 Chest : Large blood vessels : neck vessels cut down.

3 Genital organ : Spinal Column : Cut down at first cervical vertebra level.

After examination of the injuries on the deadbody of the deceased he gave the following opinion:

1 Time since death : approximately one day FIR No.47/10 State Vs Joginder @ Kala Page No. 45 46 prior to post mortem examination.

2 The cause of death was due to coma caused by cut down of spinal cord at cervical level by heavy, broadened and sharp edged weapon like Garasa etc. 3 All injuries were ante mortem in nature and were of same duration. The external injury Nos.

1,2,4 and 5, were sufficient to cause death individually as well as in combination in ordinary course of nature.

4 Manner of death was homicidal.

5 Clothes, blood on gauze piece and scalp hair preserved sealed with the seal of DFMT. DDU hospital and were handed over to the IO .

PW 26 further stated that on the same day after the completion of autopsy application Ex PW 13/PX5 was moved by SI Naresh Kumar alongwith the weapon of offence sealed with the seal of BS seeking subsequent opinion regarding consistency of the weapon of offence. He stated that after going through the postmortem findings mentioned in the FIR No.47/10 State Vs Joginder @ Kala Page No. 46 47 postmortem report and the nature of weapon produced, he opined that all the external injuries No. 1 to 6, present on the body of the deceased were consistent for being inflicted by produced weapon of offence. He proved the subsequent opinion as Ex. PW 26/G. 42 After competition of prosecution evidence, the statement of accused U/s 313 Cr PC was recorded, whereby he has denied the entire incriminating evidence appearing on record against him. Regarding blood on his clothes, he stated that he had helped the police officials in overturning and removing the dead body of his Bhabhi due to which his clothes got blood stained. He stated that he was falsely implicated by the police as he had hot conversation with them in the police station when he, his mother and his brothers were taken there and were beaten there by the police. That they were threatened by the police officials that they would teach him a lesson as he had hot conversation with them to save his family from their beatings and harassment. He further stated that he is innocent and has been falsely implicated in this case. That he FIR No.47/10 State Vs Joginder @ Kala Page No. 47 48 had great respect for his Bhabhi and had cordial relations with her. That he never produced any such Gandasa to the police. That the said Gandasa was planted on him by the police to falsely implicate him in this case, as they were annoyed with him due to his objection of their beating to him, his mother and his brothers in the police station for no reason. 43 The accused did not lead any evidence in his defence.

44 I have heard arguments addressed by Ms Satwinder Kaur, Ld. Addl. PP for State and Sh N C Sharma, the counsel for the accused and have gone through the material on record carefully.

45 It is submitted by the Addl. PP for State that accused himself went to PS and produced the "Gandasa ie the weapon of offence and informed the duty officer that he had assaulted his Bhabhi Anita with the said weapon. Further that the said statement of the accused is not hit by the provisions of Sec. 25 Indian Evidence Act because the said extrajudicial statement is not a confession made by a FIR No.47/10 State Vs Joginder @ Kala Page No. 48 49 person/accused of any offence, because a person is accused of any offence only after a report of his having allegedly committed an offence is lodged in the PS and it is recorded as contemplated by Sec. 154 Cr PC. It is only after lodgment of the FIR U/s. 154 Cr PC that a person can be said to be an accused of any offence. That the conduct of the accused is also relevant U/s. 8 of the Indian Evidence Act, 1872. That the blood group of the deceased was 'A' as per the FSL report and even on the weapon of offence the blood group 'A' was found as per FSL report and that this weapon was produced by the accused to the police. That PW 26 Dr Santosh in postmortem report had stated that the cause of death was due to coma caused by cut down of spinal cord at cervical level by heavy, broadened and sharp edged weapon like Garasa etc. She further argued that the accused himself went to PS and produced the weapon and made a statement on all relevant facts to be considered. It is further submitted that immediately on receipt for information from the accused about the commission of the crime, Inspt B S Malik, SHO PS JP FIR No.47/10 State Vs Joginder @ Kala Page No. 49 50 Kalan lodged DD No. 16A Ex. PW 16/C to this effect. It is further submitted that the prosecution has proved on record that the accused had motive to kill the deceased as she had eloped alongwith Harish i e PW 14 which had caused disrepute to their family in the society. It is further submitted that the blood stained clothes of the accused were also seized and sealed by the police and as per the FSL report these clothes were bearing the blood group of the deceased. That accused has not given any explanation as to how these clothes got blood stained and thus it corroborates the fact that he had killed his Bhabhi and consequently the clothes were blood stained. It is further submitted that the accused has not brought any evidence on record that the police was enemical towards him and for this reason he was falsely implicated in the present case. It is submitted that prosecution has proved its case beyond reasonable doubt and the accused is thus liable to be convicted for the offence U/s. 302 IPC. 46 On the other hand, Sh. N C Sharma, counsel for the accused has submitted that there are various FIR No.47/10 State Vs Joginder @ Kala Page No. 50 51 infirmities in the prosecution case for which no reliance can be placed on the testimony of the official witnesses which has remained uncorroborated by the evidence of the public witnesses. It is submitted that the prosecution has failed to prove the motive of the accused to kill the deceased or none of the public witnesses have supported the case of the prosecution to this effect. That the prosecution has also examined Harish as PW 14 alongwith whom the deceased had allegedly eloped and consequently case FIR No. 33/10 U/s. 365 IPC was registered with PS J P Kalan in which the deceased had made a statement favourable to the accused in that case ie PW 14 Harish. It is submitted that PW 14 Harish has not supported the case of the prosecution that he had any affair with the deceased and that similarly PW 2 Hari Om, the brother of the deceased has also denied that his sister had illicit relation with PW 14 Harish and that she had eloped with him on 8.4.2010 or that she was brought back to her matrimonial house from UP by him and his brother in law Narender i e PW 3, the husband of the FIR No.47/10 State Vs Joginder @ Kala Page No. 51 52 deceased and other persons. It is submitted that he has testified that she had voluntarily returned to her matrimonial house on 24.6.2010. It is further submitted that PW 2 Hari Om has further testified that when she returned to the matrimonial house, she was scared and had told him that she was kidnapped by Harish and he had threatened to kill her and her children and that she was forced to make statement in the court in FIR No. 33/10 U/s. 365 IPC, PS J P Kalan under the above threats, as he had assured him that thereafter he would leave her to live peacefully with her husband and children but even thereafter he did not spare her and forcibly took her to Himachal Pradesh from where he somehow managed to escape and returned to her house. It is submitted that to the similar effect is the testimony of PW 3 Narender, the husband, PW 5 Smt Shakuntala, the mother in law , PW 6 Surender, the brother in law of the deceased. It is submitted that under such circumstances the prosecution has failed to prove on record that the deceased had eloped alongwith PW 14 Harish and consequently the accused had FIR No.47/10 State Vs Joginder @ Kala Page No. 52 53 harbored grudge against her that she had caused disrepute to their family in the society and consequently he killed her. It is submitted that had there been any such incident of eloping of the deceased with PW 14 Harish, then her husband or Harish could have the motive to kill her and not the accused Jogender Kala who was brother in law of the deceased. It is submitted that there is no evidence on record that the accused had any point of time had any sort of quarrel with the deceased or on account of her alleged eloping with PW 14 Harish or her being kidnapped by PW 14 and her staying with him for some period so as to say that he could be responsible for killing her.

47 It is further submitted that the visit of the accused to the PS alongwith the Gandasa Ex.P1 has not been proved by the prosecution as there are material discrepancies in the testimony of the official witnesses and that it is admitted by the IO that CCTV cameras were installed in the PS but no such recording /clipping of the arrival of the accused alongwith the weapon of offence has been brought on FIR No.47/10 State Vs Joginder @ Kala Page No. 53 54 record. That as per prosecution, photographer was also called to PS but no photograph of accused alongwith weapon of offence was clicked which leads to inference that accused never went to PS with Gandasa. That in case the accused had come to the PS and made any such confession, there is no explanation as to why immediately no FIR was registered and why the weapon of offence was not seized and sealed in the PS itself. Further that all the witnesses have testified that the weapon of offence was recovered by the police from under the bed on which the deadbody was lying and as such it could not have been produced by the accused in the PS as claimed by the official witnesses. It is further submitted that though it is claimed by the prosecution that the accused had produced the weapon of offence in the PS and as per the testimony of PW 13 SI Naresh Kumar, the blood was wet on the weapon of offence and it was found wrapped in the plastic gunny bag but no blood was found on the said gunny bag when it was produced in the court and at the same time there is no evidence on record that the said gunny bag was sent to the FIR No.47/10 State Vs Joginder @ Kala Page No. 54 55 Autopsy surgeon alongwith weapon of offence for opinion or to the FSL for opinion with regard to any blood in the gunny bag and at the same time it is submitted that when the gunny bag was produced in the court there was no blood found outside and inside the gunny bag which itself falsifies the case of the prosecution that the accused had brought the weapon of offence in the same gunny bag to the PS. It is further submitted that there was no trace of blood on the sketch Ex.PW 13/PX10 of the Gandasa Ex.P1, though it is claimed by PW 13 SI Naresh Kumar that the blood was wet on the Gandasa and it is claimed by PW 16 Inspt Baltej Singh Malik, the IO that the blood on the same was semi dry. It is further submitted that no finger prints were obtained on the wooden part of the Gandasa so as to match the same with the finger prints of the accused. That the evidence led by the prosecution to the effect that the accused had made confession before PW 16 is not admissible in evidence against him as it is hit by the provisions of Sec. 25 of the Indian Evidence Act. It is submitted that as per the case of the prosecution, the accused FIR No.47/10 State Vs Joginder @ Kala Page No. 55 56 had made confession before the police officer i e PW 16 Inspt Baltej Singh Malik and as such it is admissible in evidence in view of provisions of Sec. 25 of the Evidence Act. To that effect he has cited the following authorities:

1 AIR 1966 Supreme Court 119 - Aghnoo Nagesia Vs State of Bihar, 2 2010 Cr.LJ (Del)3211 Mukesh Vs State. 3 2011 (2) JCC 1011 - Shakuntala Vs State. 4 2008(11) SCR 31 Inspector of Police, Tamil Nadu Vs Balaprasanna 5 1997 JCC 250 Kamal Kishore Vs State.

Regarding blood on clothes of accused, it is also submitted that since he had helped the police in removal of deadbody, as such her clothes were stained with the blood of deceased. It is submitted that in view of the evidence led by the prosecution, it has failed to connect the accused with the alleged commission of offence , hence the accused is liable to be acquitted. 48 After hearing the submissions of both the parties, I have gone through the material on record carefully. FIR No.47/10 State Vs Joginder @ Kala Page No. 56 57 49 The accused has faced trial for the murder of his sisterinlaw namely Anita. The prosecution case is that after the alleged incident accused Jogender Kala went to PS J P Kalan at about 3:30pm alongwith a white colour plastic gunny bag containing Gandasa Ex.P1 and informed the SHO Inspt Baltej Singh Malik that he has killed his Bhabhi with Gandasa to save the reputation of his family. This information was then recorded by PW16 Inspt, Baltej Singh Malik vide DD No.16A Ex,PW 16/C and thereafter PW 16 alongwith PW 17 SI Hazari Lal, PW 13 SI Naresh, PW 18 HC Amar Singh , HC Ram Mehar and a private photographer took the accused to the spot where they found the deadbody of one female lying in one of the bed rooms of the house of the accused and he identified the deadbody as of his Bhabhi Anita. The crime team was summoned to the spot for inspection. Rukka was sent to the PS by PW 16 Inspt Baltej Singh Malik and FIR No. 47/10 U/s. 302 IPC was got registered. During investigation the postmortem on the deadbody of the deceased was conducted on 26.6.2010 by PW 26Dr.Santosh FIR No.47/10 State Vs Joginder @ Kala Page No. 57 58 who proved the postmortem as Ex.PW 26/F. As per the postmortem report the deceased had died due to coma caused by cut down of spinal cord at cervical level by heavy, broadened and sharp edged weapon like Garasa etc and all the injuries found on her person were ante mortem in nature and were of the same duration. The external injuries bearing No. l to 4 and 5 were sufficient to cause death individually as well as in combination in ordinary course of nature and the manner of death was homicidal. As such, vide postmortem Ex. PW 26/F, it is proved by the prosecution that the death of the deceased was homicidal.

50 Now the question arises who is responsible for the death of the deceased and what evidence has been led by the prosecution to this effect .

51 The prosecution has claimed that it is the accused who had gone to the PS alongwith the weapon of offence ie Gandasa Ex.P1 and had informed PW 16, SHO of PS J P Kalan that he has killed his Bhabhi to save the reputation of his family. To this effect the prosecution has FIR No.47/10 State Vs Joginder @ Kala Page No. 58 59 claimed that PW 3 Narender, the husband of the deceased had lodged the report with PS J P Kalan vide FIR No. 33/10 against PW 14 Harish that he had kidnapped his wife Anita and in that case she had given statement U/s. 164 Cr.PC that she had accompanied him of her free will and which statement is proved on record vide the testimony of PW 23 Sh. Sumit Dass, MM Dwarka, who had recorded the same and that this had caused disrepute to the family of the accused in the society and consequently he had killed her. It is observed that PW 16 Inspt. Baltej Singh Malik has nowhere testified that accused when came to the PS he had made any such confession that he had killed his Bhabhi for the reason that she had eloped alongwith PW 14 Harish and this had caused disrepute to his family in the society. At the same time PW 16 Inspt Baltej Singh Malik has not testified that as to whatelse was disclosed by the accused other than his confessing before him that he had committed the murder of his Bhabhi with Gandasa Ex.P1. He simply testified that when he was present in the room of duty officer the accused came there and FIR No.47/10 State Vs Joginder @ Kala Page No. 59 60 wanted to meet the SHO. PW 16 Informed him that he was the SHO and then the accused informed him that he had committed the murder of his Bhabhi with Gandasa Ex.P1. PW 16 has nowhere testified that accused had also disclosed to him that he had killed his Bhabhi to save the reputation of his family. At the same time, it is not the case of the prosecution that the SHO verified from him as to how Anita was causing disrepute to their family due to which he had killed her, though it is mentioned in DD No 16A Ex.PW16/C that the accused had told the SHO that he had killed his Bhabhi to save the reputation of his family ( Khandaan) but the contents of the aforesaid DD have not been proved on record as the SHO has neither testified with regard to these contents of the DD nor he was declared hostile by the prosecution to this effect. Similarly, PW 13 SI Naresh Kumar and PW 18 HC Amar Singh have also not testified in this regard that the accused had disclosed in their presence that he had killed his Bhabhi for saving the reputation of his family (Khandan). Thus the case of the prosecution to this effect that FIR No.47/10 State Vs Joginder @ Kala Page No. 60 61 he had disclosed his motive to kill the deceased has not been proved on record vide the testimony of the official witnesses. 52 Now it is seen what other evidence has been led by the prosecution to prove the motive of the accused to kill the deceased.

53 Admittedly, none of the public witnesses examined by the prosecution has testified that the accused had any motive to kill the deceased for the reason she had eloped with PW 14 Harish and this had infuriated him and when Anita returned to her matrimonial house on 24.6.2010 she was killed by the deceased on 25.6.2010. There is no evidence on record that after Anita had allegedly eloped with PW 14 Harish or was kidnapped by him or after she returned to her house on 24.6.2010 accused showed any anger towards her or showed any symptoms that he was annoyed with her and could have caused her death for the reason that she had been staying away from her matrimonial house alongwith PW 14 Harish. To the contrary, all the public witnesses ie PW 2 Hari Om, the brother, PW 3 Narender, the husband, PW 5 FIR No.47/10 State Vs Joginder @ Kala Page No. 61 62 Smt Shakuntla, the mother in law, PW 6 Surender Kumar, the brother in law of deceased have all testified in one voice that the deceased was kidnapped by PW 14 Harish and consequently FIR No 33/10 was registered with PS J P Kalan at the instance of PW 3 Narender, the husband of the deceased and when she returned to her matrimonial house on 24.6.2010, she was found to be scared and had informed them that she was kidnapped by Harish who had threatened to kill her as well as her children and had forced her to give statement in the court in the case FIR No.33/10 U/s. 365 IPC, PS J P Kalan, that she had also informed them that after she had given the statement at the behest of Harish in the court in the aforesaid case on his assurance that he would leave her to live peacefully with her husband and children but he still did not spare her and again forcibly took her to Himachal Pradesh from where somehow she managed to run away and returned to her house. None of these witnesses have testified that the deceased had eloped with PW 14 Harish of her free will and this had caused disrepute to their family. All FIR No.47/10 State Vs Joginder @ Kala Page No. 62 63 these witnesses have denied the case of the prosecution that the deceased had eloped with Harish and that she was never threatened by him. As per their testimony that she had not made voluntarily statement in the court in case FIR No. 33/10. Nodoubt, the statement Ex.PW23/B of deceased Anita recorded U/s. 164 Cr PC has been proved on record by PW 23 Sh Sumit Dass, MM Dwarka. However, it cannot be said that she had made said statement voluntarily as in the entire proceedings of recording of her statement U/s. 164 Cr PC it has not been observed that Ld.MM that he was satisfied that she wanted to make voluntary statement or had made the statement before him voluntarily. During cross examination PW 23 Sh Sumit Dass, MM Dwarka admitted that he had not mentioned in the proceedings that she was there to make her statement voluntarily. It is also observed that Ld.MM was only insisting upon that since she was of the age of 30 years, as such she had deposed of her own. From the proceedings conducted by MM, no such inference can be drawn as to whether she had made the statement U/s 164 Cr PC voluntarily or under some FIR No.47/10 State Vs Joginder @ Kala Page No. 63 64 pressure, particularly, when all the witnesses including her brother and husband have testified before the court that when she returned to her house on 24.6.2010 she was scared and had informed them that PW 14 Harish had kidnapped her and had also threatened to kill her and her children and under such threat she had given statement before the court. In these facts and circumstances, the prosecution has failed to prove on record that the deceased had eloped with PW 14 Harish voluntarily and accused had, thus, motive to kill her since her such act had caused disrepute to the family and the accused had any such motive to kill the deceased.

54 The prosecution has also relied upon the disclosure statement of the accused Ex.PW 13/PY2 allegedly made by the accused before the police. In the said statement the accused disclosed that his Bhabhi Anita ( now deceased) had illicit relations with PW 14 Harish and had eloped with him on 8.4.2010. The people used to make queries from him in this regard and he used to feel humiliation, as such he had made up his mind that whenever he would find her, he would FIR No.47/10 State Vs Joginder @ Kala Page No. 64 65 kill her and consequently on 25.6.2010 he killed her with Gandasa. However, the aforesaid disclosure statement is inadmissible in evidence U/s 25 of the Indian Evidence Act being a confession made to a police officer and there is no fact discovered in pursuance to the aforesaid disclosure statement so as to read the same in favour of the prosecution in view of the provisions of Sec. 27 of the Indian Evidence Act. The disclosure statement of the accused do not find any corroboration from any other evidence led by the prosecution as the prosecution has not produced any cogent evidence on record about the conduct of deceased Anita in causing disrepute to her family in the society as none of the witnesses have testified that she had illicit relations with PW 14 Harish and had eloped with her. At the same time, there is no evidence on record, as referred above that the accused had harboured any grudge on this account against her. The prosecution has thus miserably failed to prove on record the motive to kill the deceased.

55 Now the question arises whether the accused FIR No.47/10 State Vs Joginder @ Kala Page No. 65 66 had gone to the PS alongwith the weapon of offence and made any confession that he had killed his Bhabhi with Gandasa Ex.P1 and whether such confession made by the accused before the police is admissible in evidence against him. 56 So far the extra judicial confession made by the accused before PW 16 Inspt Baltej Singh Malik is concerned, it is necessary to discuss the scope of Sec. 25 of the Indian Evidence Act. It is held by the Hon'ble Apex Cort in the case of Aghnoo Nagesia Vs State of Bihar reported in AIR 1966 Supreme Court 119 that :

"The law relating to confessions is to be found generally in Ss. 24 to 30 of the evidence Act and Ss. 162 to 164 of the Code of Criminal Procedure, 1898. Confession is a species of admission, and it is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, if its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstances is FIR No.47/10 State Vs Joginder @ Kala Page No. 66 67 admissible in evidence against the accused. The section covers a confession made when he was free and not in police custody, as also the one made before any investigation has begun. The expression "

accused of any offence'' covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. The absolute ban imposed by S. 25 on a confession made to be a police officer is not qualified by S. 26. Section 27 is in the form of a proviso. It partially lifts the ban imposed by Ss. 24,25 and 26. The words of S. 162, Criminal P.C are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S.164 of the Code of Criminal Procedure subject to the FIR No.47/10 State Vs Joginder @ Kala Page No. 67 68 safeguards imposed by the section. Thus, except as provided by S. 27 of the Evidence Act, S. 25 of that Act absolutely protects a confession by an accused to a police officer and it is also protected by S. 162 of the Code of Criminal Procedure if it is made in the course of an investigation, and a confession to any other person made by him while in the custody of a police officer is protected by S 26, unless it is made in the immediate presence of a Magistrate. These provisions proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted and should not be used in evidence against him. The provisions are based upon grounds of public policy, and they should be given fullest effect.

A confession may be defined as an admission of the offence by a person charged with the offence. A statement containing selfexculpatory matter cannot FIR No.47/10 State Vs Joginder @ Kala Page No. 68 69 be amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. When an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a part of the admission is exculpatory and a part inculpatory the prosecution cannot be use in evidence the inculpatory, part only. AIR 1952 SC 343 and AIR 1952 SC 354, Rel. on.

The accused can insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self exculpatory and the prosecution intends to use the whole of the statement against the accused. A confession may consist of several parts and may reveal not only the actual commission of the crime FIR No.47/10 State Vs Joginder @ Kala Page No. 69 70 but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. When the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non confessional statement. Each part discloses some incriminating fact, ie, some fact which by itself or alongwith other admitted or proved facts suggests the inference that the accused committed the crime and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. When a statement contains an admission of an offnece, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. FIR No.47/10 State Vs Joginder @ Kala Page No. 70 71 If proof of the confession is excluded by any provision of law, such as S.24, S.25 and S. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts has also to be excluded, unless proof of it is permitted by some other section such as S.27 of the Evidence Act. No substance and content would be left in Ss. 24, 25 and 26, if proof of admissions of incriminating facts in a confessional statement is permitted.

On a plain construction of S. 24, proof of all the admissions of incriminating facts, contained in a confessional statement made under inducement, threat or promise is excluded by the Section. In the same way, Ss. 25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the FIR No.47/10 State Vs Joginder @ Kala Page No. 71 72 confessional statement of all incriminating facts related to the offence. '' In view of the authority, referred above, any confessional statement made by the accused to a police officer either in custody or without being in custody of a police officer is admissible in evidence against him as the said statement is hit by the provisions of Sec. 25 of the Indian Evidence Act. 57 In the present case the fact that the accused had visited the PS and gave the information to PW 16 Inspt Baltej Singh Malik that he had killed his Bhabhi Anita with the Gandasa Ex.P1 is only relevant against the accused as his conduct U/s 8 of the Evidence Act. However, so far the remaining part of information given by him to PW 16 Inspt Baltej Singh Malik that he had killed his Bhabhi to save the reputation of his family does not amount to a confession and is thus not hit by the provisions of Sec. 25 of the Indian Evidence Act. However, the onus was on the prosecution to prove that the accused had any such motive to kill the deceased which I have already observed above that the FIR No.47/10 State Vs Joginder @ Kala Page No. 72 73 prosecution has failed to produce any cogent evidence on record that accused had motive to kill his Bhabhi to save the reputation of his family. At the same time, it has already been observed above that except for DD No 16A Ex.PW 16/C none of the official witnesses, particularly, PW 16 Inspt Baltej Singh Malik has not been even testified before the court that accused had given any such information before him that he had killed his Bhabhi Anita to save the reputation of his family. He has only testified that accused had disclosed to him that he had murdered his Bhabhi Anita with Gandasa Ex.P1. The said information given to PW 16 Inspt Baltej Singh Malik by the accused is hit by the provisions of Sec. 25 of the Indian Evidence Act and is thus not admissible in evidence against him.

58 Similarly producing of the weapon of offence ie Gandasa Ex.P1 by the accused before PW 16 Inspt Baltej Singh Malik cannot be treated as recovery in furtherance of his confessional statement made before a police officer in terms of Sec. 27 of the Indian Evidence Act. The entire confessional FIR No.47/10 State Vs Joginder @ Kala Page No. 73 74 statement is hit by Sec. 27 of the Indian Evidence Act except the formal part identifying the accused as the informant, no part of it can be tendered in evidence and therefore the argument of Ld.Addl. PP State that since the accused himself had appeared before PW 16 Inspt Baltej Singh Malik and produced the weapon of offence Ex.P1 and made confession that he had killed his Bhabhi with the aforesaid weapon of offence and lateron the said weapon of offence was found bearing blood group of the deceased which was also the blood group of the deceased and thus this evidence shall be read against the accused is of no consequence in view of the provisions of Sec. 25 of the Indian Evidence Act. 59 Even otherwise the prosecution has not led any cogent evidence to the effect that accused had gone to PS alongwith the blood stained Gandasa Ex.P1 and made extra judicial confession as it is seen that despite the fact the accused informed PW 16 Inspt Baltej Singh Malik about his having committed the alleged offence no FIR was lodged immediately nor the accused was arrested nor the weapon of FIR No.47/10 State Vs Joginder @ Kala Page No. 74 75 offence was seized in the PS itself. Though accused has denied in his statement U/s. 313 Cr. PC that he had visited the PS, however it stands proved from the testimony of PW 5 Smt Shakuntala, his mother that he had visited the PS on that day. She testified that around 2 /3pm she had returned to her house from the fields and found Anita lying in pool of blood. She raised alarm and her neighbourers collected there. Besides, other fact she deposed that she had asked some of her neighbours to call his younger son from the shop so that Anita could be removed to the hospital. She testified that her son Jogender @ Kala i e the accused reached the spot and since Anita was appearing to be dead so he tried to make a call to the police from PCO but he could not succeed as the lines were found to be busy, so he immediately went to the PS to inform about the incident and after sometime returned to the spot alongwith the police. In view of her testimony, the visit of the accused Jogender to the PS on that day after 3 pm stands proved on record. However, the question arises whether the accused had gone to the PS to make confession FIR No.47/10 State Vs Joginder @ Kala Page No. 75 76 and had carried alongwith him the weapon of offence ie Gandasa Ex.P1. As per the testimony of PW 16 Inspt Baltej Singh Malik, when he was present in the room of duty officer, accused came there and gave the information about the crime. However, the duty officer on duty at that time has neither been cited nor examined as a witness to corroborate the statement of PW 16 Inpst.Baltej Singh Malik about the arrival of the accused in the PS, his making confession before PW 16 and producing weapon of offence ie Gandasa Ex.P1, hence adverse inference is drawn against the prosecution. It is further observed that PW 16 in his cross examination has admitted that there was a CCTV monitor installed in his room from which he could look in the room of the duty officer besides other places of the PS but no such CCTV footage has been produced in the court to prove about the arrival of the accused in the PS alongwith the weapon of offence. PW 16 Inspt Baltej Singh Malik has made inconsistent testimony in this regard. Initially he testified that there is no recording facility of CCTV footage but he again testified that he was not aware of if FIR No.47/10 State Vs Joginder @ Kala Page No. 76 77 any such facility was available there. But he again testified that the technician who visits the PS for maintaining of CCTV camera had told him that there was no such facility available. The three different answers were given by PW 16 Inspt Baltej Singh Malik to the question of the defence counsel in this regard which shows that the witness did not want to give a clear or conscience answer and was creating confusion in this regard. At the same time, he admitted in his cross examination that the room of duty officer is covered with CCTV camera and monitor is also installed in the said room and the camera remains in on position round the clock. In view of his such admission that the CCTV camera remains in on position for 24 hours, nonproduction of the clippings of the said CCTV camera has forced me to draw adverse inference against the prosecution, as if the accused had visited the PS alongwith the blood stained weapon of offence, there was no reason for the IO not to place on record any footage of such CCTV cameras. The testimony of PW 16 to the effect that there is no recording facility available in the CCTV camera does not inspire FIR No.47/10 State Vs Joginder @ Kala Page No. 77 78 credence as he has given inconsistent answers in this regard. At the same time, it is observed that PW 16 has testified that a private photographer was called to the PS who was taken alongwith them to the spot of incident. But during cross he admitted that he did not get any photograph of the accused alongwith Gandasa Ex.P1 while he was present in the PS. At the same time, it is observed that IO did no get the confessional statement of the accused recorded U/s. 164Cr PC and in answer to the court question he stated that he did not feel it necessary, which further creates doubt that the accused had visited the PS to make confession as if he had made any such confession before PW 16, he could move an appropriate application before the concerned court for getting the confession of the accused recorded U/s. 164 Cr. PC. At the same time, he admitted that he made no effort to obtain the finger prints on the wooden part of Gandasa Ex.P1. He admitted that he made no request to the crime team to lift the finger prints from the Gandasa and the explanation given by the IO to this effect is that it escaped from his mind. It is FIR No.47/10 State Vs Joginder @ Kala Page No. 78 79 further observed that as per his cross examination PW 16 had seen the Gandasa for the first time in the PS in the presence of the Duty Officer, SI Naresh, HC Amar Singh and other police staff but duty officer has neither been cited nor examined by the prosecution. At the same time, PW 13 SI Naresh testified in his cross examination that he was called by the SHO in his room and was told that they had to go to the spot at village Rawata and was informed about the present case. This part of his testimony speaks that the accused did not arrive in the PS alongwith the weapon of offence in his presence but the information to him about this case was given by the SHO when he called him to his room in the PS. The witness PW 13 voluntarily testified that at that time the accused was present in the office of SHO alongwith Gandasa Ex.P1. However, this testimony of PW 13 is contrary to what is testified by PW 16 who testified that he was present in the room of duty officer at 3:30pm when the accused came there and made confession that he had committed the murder of his Bhabhi with Gandasa Ex.P1 and that he was carrying one plastic gunny bag in his FIR No.47/10 State Vs Joginder @ Kala Page No. 79 80 hand which was checked by the SHO and it was found containing one Gandasa fixed with the wooden danda with nuts and bolts and there was sufficient blood on the Gandasa Ex.P1 and some hair were also sticked to the Gandasa. As per the testimony of PW 16 when he checked the Gandasa Ex.P1 from the gunny bag brought by the accused at that time he was in the duty officer's room so it it is obvious that once he had checked the Gandasa he would not have handed over back to the accused. Whereas PW 13 has testified that when he was called to the room of SHO at that time the accused was present alongwith the Gandasa Ex.P1. So these are two contradictory statements and cannot be conciled. The testimony of PW 16 Inspt. Baltej Singh Malik that he had seen the Gandasa Ex.P1 in the presence of SI Naresh and HC Amar Singh and other police officials is not supported by the testimony of PW 13 SI Naresh and PW 18 HC Amar Singh. As per the evidence led by the prosecution PW 16 Inspt. Baltej Singh Malik had seen the Gandasa Ex.P1 for the first time in the room of the duty officer, whereas SI Naresh was never FIR No.47/10 State Vs Joginder @ Kala Page No. 80 81 present in the room of the duty officer and was called by PW 16 to the room of SHO and then he was informed about the facts of this case and at the same time PW 18 HC Amar Singh testified that at 3:35pm he was called by the duty officer in the reporting room where PW 16 and other police staff was present, the photographer Kishan Dagar was called by the SHO, the accused Jogender was holding a white colour plastic katta in his hand from which one danda was coming out which bag was taken by PW 16 Inspt Baltej Singh Malik from the hands of the accused and handed over to SI Naresh Kumar. Thus as per the testimony of PW 18 HC Amar Singh after gunny bag was taken from the possession of accused it was never opened in his presence and straight away they had gone to the spot from the PS. These contradictions in the testimony of three official witnesses creates doubt about the truthfulness of the case of the prosecution that the accused had visited the PS alongwith weapon of offence ie the Gandasa Ex.P1 which was blood stained and he made confession of his committing the crime. It is further observed that it is the case of the FIR No.47/10 State Vs Joginder @ Kala Page No. 81 82 prosecution that the accused had produced the Gandasa Ex.P1 which was blood stained, in the gunny bag. PW 13 SI Naresh Kumar during his cross examination testified that when he had seen the Gandasa Ex.P1 for the first time in the PS it was smeared with wet blood and there was some blood inside the gunny bag also in which it was wrapped. It is the case of the prosecution that in the same gunny bag the the Gandasa was kept and converted in a cloth pulanda and sealed with the seal of BS but PW 26 Dr. Santosh to whom the weapon of offence was sent for subsequent opinion has testified in his cross examination that he had received the weapon of offence in a sealed cloth parcel and that in the subsequent opinion Ex.PW26/G he had not mentioned that there was anything else other than the weapon of offence.He categorically testified if there had been any other thing including the gunny bag, he would have mentioned it in his report. Thus a doubt has been created in the mind of the court that the accused had produced the gunny bag containing blood stained Gandasa and that the same was sealed in the same gunny bag after converting the FIR No.47/10 State Vs Joginder @ Kala Page No. 82 83 same into the cloth pulanda. If there had been any gunny bag in which the accused had produced the same and the weapon of offence was sealed in the same, then there was no reason for the doctor not to mention about the presence of gunny bag in his subsequent opinion Ex.PW 26/G. At the same time, it is observed that this weapon of offence sealed with the seal of DFMT DDU hospital was sent to the FSL but PW 22 L. Babyto Devi who had examined the exhibits including the weapon of offence in the FSL has categorically testified in her cross examination that Exhibit 5 ie the Gandasa Ex.P1 as mentioned in the biology report Ex.PW16/G was found lying in sealed cloth parcel No.5 and on opening the same it was only found containing Gandasa and no polybag or gunny bag was found in the cloth parcel nor the blade of Gandasa was found wrapped in anything. Whereas to the contrary PW 16 Inspt Baltej Singh testified that in his chief examination that the Gandasa Ex. P1 was sealed in the same gunny bag in which it was brought by the accused. He did not testify that it was converted in cloth parcel. In these circumstances, it has FIR No.47/10 State Vs Joginder @ Kala Page No. 83 84 become doubtful that accused had produced the weapon of offence in a gunny bag in the PS or that the said gunny bag was sealed alongwith the weapon of offence in a cloth pulanda and then it was sent to PW 26 Dr. Satnosh,Sr. Resident, DDU Hospital for subsequent opinion and thereafter to the FSL for obtaining the biology and serology reports. At the same time, it is observed that when the case property was produced in the court during the testimony of PW 2 Hari Om bearing the seal of FSL BD Delhi and on opening the same it was found containing one unsealed cloth pulanda bearing the seal impression of DDU DFMT and the said cloth pulanda was further containing one plastic gunny bag which was containing blood stained the Gandasa. As such, there are discrepancies in the testimony of the witnesses with regard to seizure of the gunny bag and its being sealed alongwith the weapon of offence which creates doubt about the truthfulness of the prosecution case. At the same time, it is observed that gunny bag which was produced in the court was seen outside as well as from inside but it was not found to be blood stained FIR No.47/10 State Vs Joginder @ Kala Page No. 84 85 and thus the prosecution has failed to explain as to where is the gunny bag which as per the testimony of PW 13 was containing blood on account of Gandasa Ex.P1 being produced by the accused in the same. The plantation of the Gandasa on the accused in such circumstances cannot be ruled out, particularly, when the prosecution witnesses ie PW 2 Hari Om, PW 3 Narender, PW 5 Smt Shakuntla, PW 6 Surender Kumar have testified in their chief examination that during the investigation when the police had removed the bed on which the deadbody of the deceased was lying, one blood stained Gandasa was found lying under the bed. Moreover, PW 2 has identified Gandasa Ex.P1 in his chief examination that it is the same which was seized by the police from under the bed at the spot. In view of the circumstances of the case, the prosecution has thus failed to prove that the Gandasa Ex.P1 was produced by the accused in the PS. The prosecution is also harping on the fact that the clothes of the accused were stained with the blood of the deceased as per the FSL report and as scuh he is a murderer. However, though it FIR No.47/10 State Vs Joginder @ Kala Page No. 85 86 is admitted by the official witnesses that when the accused had appeared in the PS at that time his clothes were found to be blood stained but this fact does not find mention in DD No 16A Ex.PW16/C. It is the defence of the accused that his clothes were blood stained as he assisted the police in removing the deadbody from the bed and his said defence is supported by the testimony of PW 2 Hari Om, PW 3 Sh Narender, PW 5 Smt Shakuntla and PW 6 Surender Kumar. Thus the possibility that the clothes of the accused were stained with the blood of the deceased while he assisted the police in the proceedings at the spot cannot be ruled out. The defence taken by the accused is that he alongwith his mother and brothers was taken to the PS where the police officials had misbehaved with his mother which was not tolerated by him and he entered into exchange of hot words with the police officials and consequently he was falsely implicated in the present case. His such defence is also corroborated by the testimony of PW 3 Narender, PW 5 Smt Shakuntla and PW 6 Surender Kumar.

FIR No.47/10 State Vs Joginder @ Kala Page No. 86 87 60 In these facts and circumstances of the case, the prosecution has failed to produce any cogent evidence to prove the guilt of accused beyond reasonable doubt. Hence, accused namely Jogender @ Kala is acquitted of the charge U/s 302 IPC.

61 In view of the provisions of Section 437A Cr.P.C, the accused Jogender @ Kala is directed to furnish a personal bond in the sum of Rs. 15,000/ with one surety in the like amount. Directions be issued to the Jail Superintendent not to release the accused till further orders.

File be consigned to the Record Room after compliance of the aforesaid directions.

Announced in Open                                 (Ravinder Kaur)
Court Today.                                  SpecialJudge(NDPS)  
Dated: 30.08.2011                                 ASJ/Dwarka/N.D.




FIR No.47/10              State Vs  Joginder  @ Kala                           Page No. 87
                                     88




State Vs  Joginder Kala 

FIR  No  47/10
PS J P Kalan 
30.08.2011  At  10:00am

Present: Ms Satwinder Kaur, Ld. Addl. PP for State.

Accused from J/C with Sh N C Sharma, adv.

                Further   final   arguments   heard     from   Sh     N   C 

Sharma, counsel for the accused. 

                Put up   for  order  at  4:00pm. 


                                                    (RAVINDER KAUR)
                                                     ASJ/Spl. Judge (NDPS),
                                                          Dwarka Courts, 
                                                              30.08.2011 



At  4:00pm 

Present:        Ms Satwinder Kaur, Ld. Addl. PP for State. 

                Accused from J/C with  Sh N C Sharma, adv. 

                Vide   separate   judgment,   the   accused     Jogender   @ 

Kala is acquitted of the charge  U/s  302 IPC. 


FIR No.47/10              State Vs  Joginder  @ Kala                           Page No. 88
                                     89

.               In   view   of   the  provisions   of   Section   437A  Cr.P.C,

the accused Jogender @ Kala is directed to furnish a personal bond in the sum of Rs. 15,000/ with one surety in the like amount. Directions be issued to the Jail Superintendent not to release the accused till further orders.

File be consigned to the Record Room after compliance of the aforesaid directions.

(RAVINDER KAUR) ASJ/Spl. Judge (NDPS), Dwarka Courts, 30.08.2011 FIR No.47/10 State Vs Joginder @ Kala Page No. 89

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