Delhi District Court
State vs . Rameshwar on 25 May, 2011
State vs. Rameshwar
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 91/08
ID No. 02403R0168522005
FIR No. 820/04
PS Mehrauli
U/s 363/302/201 IPC
State Vs. Rameshwar, S/o Sh. Parmeshwar,
R/o Village Rohtadi, PS Mohan Ganj,
District Rai Bareily, U.P.
_______________________________________________________________
Date of institution : 06.04.2005
Date when the case was received by transfer : 28.01.2009
Date when arguments were heard : 05.05.2011 and 24.05.2011
Date of Judgment : 25.05.2011
________________________________________________________________
JUDGMENT
The prosecution case is as under:
1. The complainant Mohd. Wahid (PW3) was residing at B13, Modi Farm, Asola, Fatehpur Beri, New Delhi and was working as a gardener. His four children and wife were also staying with him. On 15.12.2004 around 6.30/6.45 pm, he went to Fatehpur market to purchase some articles. When he came back, he found that his son namely Salman aged about seven years was missing. His wife Smt. Naimun Nisha told him that somebody had knocked at SC No. 91/08 1/28 State vs. Rameshwar the gate and she had sent Salman to open the gate and thereafter, Salman went missing. The information regarding missing of the boy was received initially at 7.15 pm at Police Post Bhati Mines, PS Mehrauli which was noted vide DD No. 20 (Ex. PW13/A). The complainant came to the Police Post at 10.15 pm and he lodged a missing report vide DD No. 25 (Ex. PW13/B). The inquiry of this missing report was assigned to HC Ram Niwas (PW15), who had already received the inquiry of DD No. 20 (Ex. PW13/A).
2. On 16.12.2004, the complainant Mohd. Wahid came to the Police Post Bhati Mines and lodged the complaint (Ex. PW3/A). The case was accordingly registered for the offence U/s 363 IPC. On 22.12.2004, complainant Mohd. Wahid found the dead body of his son Salman in the garbage of the farm house at B13, Modi Farm. The half burnt body of the deceased was lying under the burnt heap of garbage. The information with regard to the recovery of the dead body was sent to the police station and was noted vide DD No. 31 (Ex. PW13/C) at 6.28 am. SI Sunil Kumar, the then Incharge PP Bhati Mines reached the spot where he saw a half burnt dead body in the heap of burnt garbage. He called the crime team which inspected the site and took the photographs of the scene of crime. The site plan (Ex. PW18/A) was prepared by Inspector Sunil Kumar (PW18). He collected the pieces of the burnt flesh of the dead body as well as the bones. He also lifted the burnt pieces of the cloth of deceased and sealed the same in a cloth parcel and seized them and prepared a seizure memo (Ex. PW18/B). The dead body was sent for the postmortem. After the postmortem was conducted, the doctor handed over a sealed pulanda containing the blood in gauze, a sealed pulanda SC No. 91/08 2/28 State vs. Rameshwar containing the bone of the deceased, a sealed pulanda containing the cloth of the deceased, a sealed pulanda containing the mud, scratched from the body of the deceased, alongwith a sample seal of Department of Forensic Medicine, AIIMS Hospital. These sealed pulandas were seized as per the memo Ex. PW18/C. The exhibits so seized were sent to the CFSL. The bone of the deceased was sent for DNA Printing to the CFSL, Hyderabad, alongwith the blood sample of Mohd. Wahid, father of deceased. The DNA Report confirmed that the deceased was the son of complainant Mohd. Wahid. (It may, however, be mentioned here that DNA Report has been filed in the court only in January 2010 while it was sent to the CFSL in the year 2006 and the DNA Test was conducted on 18.07.2006. This fact is mentioned here just to reflect the callousness of the police in the investigation of the case).
3. The accused was considered to be a suspect as some of the witnesses examined during the investigation had stated that they had last seen the deceased with him. On 24.12.2004, the IO of the case Inspector M.L. Sharma (PW16) received a secret information on the basis of which, he apprehended the accused at ISBT, Anand Vihar and an HMT Watch (Ex. 2D) was recovered from his possession which he had kept in the pocket of his wearing pant. Here it would be pertinent to mention that as per the case of the prosecution when complainant Mohd. Wahid (PW3) was going to Fatehpur market, his son the deceased Salman was insisting upon to accompany him and the complainant had given his HMT Watch to the deceased to play with. It is the case of the prosecution that this HMT Watch was with the deceased when SC No. 91/08 3/28 State vs. Rameshwar he was kidnapped.
4. Thus, after completing the investigation, the charge sheet was filed in the court and the case was committed to the Sessions Court for trial. The accused was charged for the offence U/s 363/302/201 IPC by my Ld. Predecessor on 19.05.2005. Here I would mention that the case took a long time to come to the final stage due to the nonavailability of two public witnesses namely Shiv Darshan and Ram Nandan Mukhiya for a long time and also for nonappearance of the other witnesses many times on the date of hearing. During the long spell of trial, the prosecution had examined 22 witnesses in the following sequence of their examination: 4.1 PW1 is Constable Balwant. He was the member of the crime team who had reached the spot and taken the photographs of the scene of crime from different angles vide Ex. P1 to Ex. P4.
4.2 PW2 is Constable Virender, who had taken the exhibits of the case to the CFSL, Hyderabad.
4.3 PW3 is Mohd. Wahid, the complainant in the case who has proved his complaint Ex. PW3/A and has also identified the clothes of the deceased Ex. 2A, Ex. 2B and Ex. 2C when shown in the court. He also identified the wrist watch recovered from the accused as Ex. 2D. 4.4 PW4 is Naimun Nisha, the wife of the complainant and mother of the deceased Salman.
4.5 PW5 is SI Mohar Singh, the Incharge of the crime team who gave his report Ex. PW5/A and deposed that no scientific clue was found at the place of incident.
SC No. 91/08 4/28
State vs. Rameshwar 4.6 PW6 is Dr. Sanjeev Lalwani, who alongwith Dr. Arvind and Dr. Chittaranjan Behra had conducted the postmortem on the dead body of the deceased Salman. He had proved the report Ex. PW6/A. He deposed that the cause of death in this case could not be given because of extensive postmortem, burns and decomposition.
4.7 PW7 is Dr. Arvind Kumar. He was also associated with postmortem of the dead body.
4.8 PW8 is HC Sambhu Singh, who had accompanied SI Sunil Kumar to the spot on 22.12.2004 when the information regarding the recovery of the dead body of deceased Salman was received in the police station. 4.9 PW9 is HC Naresh Kumar, who had registered the FIR Ex. PW9/A in this case.
4.10 PW10 is HC Dharam Singh, who was the MHC (M) at PS Mehrauli at the relevant time. He had produced the Register No.19 Ex. PW10/A and Ex. PW10/B in the court, reflecting the deposit of the exhibits by SI Sunil Kumar on 22.12.2004; sending of one sealed pulanda to the CFSL on 23.02.2005 and deposit of one sealed pulanda with the seal of M.L on 24.12.2004.
4.11 PW11 is SI Madan Pal, who had prepared the scaled site plan Ex. PW11/A. 4.12 PW12 is Shiv Darshan, who had seen the deceased with the accused on 15.12.2004 at about 6.00/6.30 pm. 4.13 PW13 is HC Lakhmi Chand, who had made the entry with regard to the missing of the boy on 15.12.2004 vide DD No. 20 (Ex. PW13/A) SC No. 91/08 5/28 State vs. Rameshwar at PP Bhati Mines. He had also made the entry with regard to DD No. 25A (Ex. PW13/B) and also DD No. 31 dated 22.12.2004 (Ex. PW13/C). 4.14 PW14 is HC Raja Ram, who was posted at PP Bhati Mines and had accompanied HC Ram Niwas in the investigation. 4.15 PW15 is HC Ram Niwas, who was assigned DD No. 20 and had visited the Modi Farm House at B13 and recorded the statement of complainant Mohd. Wahid and sent the rukka Ex. PW15/A for registration of the case.
4.16 PW16 is Inspector M.L. Sharma, the Investigating Officer of the case.
4.17 PW17 is Inspector C.K. Sharma, who was also associated with the investigating and had sent the exhibits for DNA Test to Hyderabad. 4.18 PW18 is Inspector Sunil Kumar, who had investigated the case partly at the initial stage.
4.19 PW19 is Ram Nandan Mukhiya. He had seen the accused with the deceased Salman in the company of the accused on 15.12.2004 and he also deposed that accused Rameshwar was not traceable from the date 15.12.2004, after the missing of the boy.
4.20 PW20 is Constable Lal Babu. He had taken the exhibits of the case to CFSL, Hyderabad on 23.02.2005.
4.21 PW21 is Constable Subhash, who has been associated during the investigation with SI Sunil Kumar and also Inspector M.L. Sharma. 4.22 PW22 is Venkateshwar Goud from CDFD, Hyderabad, who has proved the DNA Report.
SC No. 91/08 6/28
5. I have heard the arguments from the Ld. Addl. Public Prosecutor for the state and the Ld. Defence Counsel for accued and perused the evidence on the record carefully.
6. Ld. Addl. PP for state has submitted that the accused was working with Modi Farm House as a gardener on which the complainant was also working and he was removed from the service on the complaint of the complainant Mohd. Wahid (PW3). This, he argued, was the motive for the accused to commit the offence. He further argued that the accused was seen in the company of the deceased by PW12 Shiv Darshan and PW19 Ram Nandan Mukhiya and the accused has not offered any explanation as to when he parted company with the deceased. He further argued that the accused was absconding since the date of incident. This shows his guilty mind and lastly; he argued, that the HMT Watch which was with the deceased on 15.12.2004 was recovered from the possession of the accused on 24.12.2004 when he was apprehended at the Anand Vihar bus stand. He relied upon the statement of PW16 Inspector M.L. Sharma and PW18 SI Sunil Kumar to prove the recovery from the accused. So far as the motive and the conduct of the accused is concerned, he relied upon the statement of PW3 Mohd. Wahid, PW4 Mrs. Naimun Nisha, PW12 Shiv Darshan and PW19 Ram Nandan Mukhiya. He concluded by saying that prosecution has proved its case beyond reasonable doubt.
7. On the contrary, the Ld. Defence Counsel has argued that last seen evidence is not creditworthy as one of the prosecution witness (PW12 Shiv Darshan) has not supported the prosecution case in this regard. So far as the SC No. 91/08 7/28 State vs. Rameshwar conduct of the accused is concerned, he argued that there is no abnormality in his conduct if he left the place of incident after the occurrence. He further submitted that even PW19 Ram Nandan Mukhiya had left the farm house within 2/3 days of the incident. So far as the evidence with regard to the recovery is concerned, he argued that the statement of witnesses are contradictory and the defence of the accused that he was picked up from his house at Rai Bareily stands proved by the statement of the defence witnesses and, thus, falsifying the prosecution evidence that he was apprehended from ISBT, Anand Vihar and the recovery was effected from him. He argued that the accused has been falsely implicated and evidence led by the prosecution is not sufficient to prove a case against accused beyond reasonable doubt.
8. The prosecution case is based on circumstantial evidence. As per the case of the prosecution, the deceased Salman, son of Mohd. Wahid (PW3) the complainant, was residing with his father at B13, Modi Farm, Asola, Fatehpur Beri. The prosecution alleges a motive of the accused for committing the murder of deceased Salman. The prosecution case is that the accused was also working at Modi Farm, Asola, Fatehpur Beri and he was a habitual drinker, therefore, the complainant Mohd. Wahid (PW3) had made a complaint against him to the Incharge of the Farm House. As a result of this complaint, the accused was removed from his services. Then the prosecution story is that the deceased was seen with the accused by the other inmates of the said farm house in the evening and to finally nail down the accused for the offence, the prosecution rely upon the recovery of a wrist watch make HMT from his possession. The relevancy of the recovery of this HMT Watch from the SC No. 91/08 8/28 State vs. Rameshwar accused is that when the complainant was going to the market on 15.12.2004, the deceased Salman had insisted upon him to accompany him to the market. But he was not taken by the complainant with him rather he gave his wrist watch make HMT to play with. The deceased was having this wrist watch with him when he went missing from the house. Thus, the prosecution case clearly shows that there is no direct evidence and the entire case is based on circumstantial evidence.
9. The law with regard to the circumstantial evidence is very well settled. In the case of circumstantial evidence the court has to examine the complete chain of evidence to ascertain the culpability of the accused and the court has to assure itself that the circumstances conclusively point towards the guilt of the accused. There are catena of judgments by the Hon'ble Supreme Court wherein the law relating to the circumstantial evidence has been dealt with. In a recent judgment of Paramjeet Singh @ Pamma Vs. State of Uttrakhand 2010 X AD (SC) 153 the Hon'ble Supreme Court had discussed the law of circumstantial evidence. The observations of the Hon'ble Supreme Court, based on a previous judgment in S.B. Sarda Vs. State of Maharashtra AIR 1984 SC 1622, provide a guideline how to appreciate the circumstantial evidence, specially when the accused fails to offer any explanation of either his conduct or the circumstance appearing against him.
" Circumstantial Evidence:
Though a conviction may be based solely on circumstantial SC No. 91/08 9/28 State vs. Rameshwar evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the SC No. 91/08 10/28 State vs. Rameshwar one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. "
The evidence on the record is to be appreciated in the light of the position of law mentioned above.
10. In the present case the prosecution had examined the witnesses to prove the allegations against the accused. The circumstances which the prosecution intended to prove against the accused were;
(i) motive; {accused removed from service on the complaint of Mohd. Wahid (PW3) father of deceased Salman}.
(ii) the last seen evidence; (accused seen with deceased in the evening of 15.12.2004).
(iii) Conduct; (was not seen in the area after the incident) and
(iv) the recovery of the HMT Watch; (watch was with deceased when he went missing from house).
MOTIVE
11. The case of the prosecution is that the complainant was working at B13, Modi Farm House where accused Rameshwar was also working. PW3 Mohd. Wahid has deposed that when he was working at the said farm house as a gardener, one Shiv Darshan and Ram Nandan SC No. 91/08 11/28 State vs. Rameshwar Mukhiya, PW12 and PW19 respectively were also working at the said farm house and the accused Rameshwar was also working at that time. He further deposed that accused Rameshwar was removed from the services on his complaint due to his habit of taking liquor. PW4 Ms. Naimun Nisha, mother of the deceased also deposed that the accused Rameshwar was working as a gardener at the farm house but about a week prior to the incident, he was removed from the service by the Incharge due to his bad habit of taking liquor. She further deposed that the complaint regarding the drinking of liquor by the accused Rameshwar was made by her husband which led to the removal of the accused from the services. PW12 Shiv Darshan was also working as a gardener at the Modi Farm House, Asola, although he has not supported the prosecution case but in the cross examination by the Ld. Addl. Public Prosecutor, he accepted that the accused Rameshwar was habitual of taking liquor and, therefore, the complainant Mohd. Wahid had made a complaint against him to the Incharge of the Farm House. PW19 Ram Nandan Mukhiya was also working as a gardener at the farm house who deposed in the examinationinchief that the accused Rameshwar was habitual of taking liquor. He also deposed that Mohd. Wahid (PW3, complainant) had made a complaint against the accused Rameshwar to the Incharge of the farm house and the accused was removed from the services due to the habit of drinking liquor.
SC No. 91/08 12/28
12. So far as the "motive" is concerned, it plays an important role in a case which is based on circumstantial evidence. The absence of motive does not affect the credibility of the witnesses examined by the prosecution but when the enemical relation between the complainant and the accused or the deceased are cited as a motive for the commission of the offence, then the court has to be very cautious. The existence of enemical relation could act as a double edged weapon, in as much as if the same is held to be a motive for the commission of the crime, it could also be a motive to implicate a person falsely. When the case of the prosecution is based on motive, then the court has to seek corroboration on material particulars. Before taking the evidence of motive as an incriminating material against the accused, the court has to consider whether it is an adequate motive for the commission of the crime.
13. Now coming to the facts of the case, all the witnesses mentioned above i.e the complainant (PW3), mother of the deceased (PW4), Shiv Darshan (PW14) and Ram Nandan Mukhiya (PW19) have spoken about the fact that the accused was habitual of taking liquor and the complainant had made a complaint in this regard to the Incharge of the farm house. This circumstance can possibly lead to the inference that the accused was peeved by the act of the complainant. But to draw the conclusion that this motive was strong enough, by itself, to connect the accused with the offence, will not be justified. Therefore, the prosecution SC No. 91/08 13/28 State vs. Rameshwar was under a bounden duty to produce some other evidence on the record to support this evidence of motive against the accused. LAST SEEN EVIDENCE
14. The prosecution case is also based on the last seen evidence when the deceased was seen in the company of the accused. The law on the issue of "last seen evidence" has been settled by a catena of judgments. The basic principle of last seen evidence has been stated by the Hon'ble Supreme Court in the case of State of UP Vs. Satish 2005 Cri. L.J. 1428 as under: " The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." The prosecution was relying on the statement of PW12 Shiv Darshan and PW19 Ram Nandan Mukhiya, who had seen the deceased in the company of the accused in the evening of 15.12.2004. PW12 Shiv Darshan has not supported the prosecution, therefore, he was SC No. 91/08 14/28 State vs. Rameshwar cross examined by the Ld. Addl. Public Prosecutor. As per the case of the prosecution, the accused alongwith the deceased had come to the room of Shiv Darshan and had left the room after asking him to prepare the food for them. However, PW12 Shiv Darshan when appeared in the witness box, denied that the accused Rameshwar alongwith the deceased Salman had come to his room and had left the room alongwith him. PW19 Ram Nandan Mukhiya in the examinationinchief deposed that he was working as a gardener in the Modi Farm House. He had seen the accused playing in the lawn of the farm house with the deceased Salman at around 6.00 pm. It may be mentioned here that this witness is not certain about the date of incident, while the incident is of December 2004, he talks about the incident in August 2004. He deposed that after he finished his work, he came to his room and started cooking the dinner. In the meantime, the accused had told to Shiv Darshan (PW12) that his dinner be also prepared. This fact, however, has been completely denied by PW12 Shiv Darshan. In the cross examination, PW19 deposed that the accused had not entered the room and he had called from the lawn itself asking them to make food for them. This witness in the examinationin chief has also deposed that accused Rameshwar was not traceable from the date of incident. PW19 Ram Nandan Mukhiya in his examinationin chief has stated about the accused coming to his room asking him and Shiv Darshan (PW12) to make food and he also speak about the accused SC No. 91/08 15/28 State vs. Rameshwar being in company of the deceased at that time. However, the statement of a witness has to be seen in totality. The cross examination of a witness more often than not reveal the truthfulness or otherwise of a witness. In the cross examination on this aspect, he has stated that he had not told Mohd. Wahid that he had seen the deceased Salman with the accused nor he told this fact to his mother or some other neighbour. He deposed that he had met Mohd. Wahid on the date of incident when he had come to the farm house (PW3, Mohd. Wahid had gone to market when the child had gone missing) at about 7.00 pm. He further deposed that he did not mention to Mohd. Wahid or his wife that he had seen the child Salman with the accused Rameshwar even after his statement was recorded by the police. This statement of the witness that he did not mention about the accused being in the company of the deceased to his parents when he first met them and even after when his statement was recorded by the police, creates a doubt. It is unusual and improbable that a person who is informing the police that he had seen the deceased in the company of the accused, will not disclose the fact to his parents even after giving such a statement to the police. It may also be noted that PW19 Ram Nandan Mukhiya deposed that his statement was recorded by the police on the next day of the incident. It is the case of the prosecution that the police had come to the spot on the same day, however, the witness PW19 did not state anything to the police regarding the accused being in company of SC No. 91/08 16/28 State vs. Rameshwar the deceased on same day. The credibility of this witness is also shaken from the fact that he is not even sure about the date of the commission of the offence. As per the prosecution case, he was working as a gardener at the farm house. He deposed that he got the job at the Modi Farm House on 12.08.2004. He deposed that after 3/4 days, the said incident occurred. He further said that he left his job after 10/15/20 days of the incident. Now, in the further cross examination, he said that only three gardeners were working in the Modi Farm House i.e Shiv Darshan (PW12), Mohd. Wahid (PW3) and himself. He further voluntarily added that the accused Rameshwar had come a few days before the incident to reside with his co villager, (PW12 Shiv Darshan). He further added that the accused had come one day before the incident. If this statement of PW19 is considered, then the accused Rameshwar had come to the farm house only a few days prior to the incident or one day prior to the incident. Therefore, he could not have been working at the farm house as a gardener and it also rule out any incident of the complainant making any complaint against the accused Rameshwar regarding his habit of taking liquor. Further, PW19 deposed that he had seen the accused in the company of the deceased at 6.00 pm and after the accused came and asked for preparing food for him, the mother of the deceased Salman had come to his room and stated that somebody had kidnapped her child.
15. Now the statement of PW3 Mohd. Wahid and PW4 Mrs. SC No. 91/08 17/28 State vs. Rameshwar Naimun Nisha may be considered. PW3 Mohd. Wahid deposed that he had gone to Fatehpur market at 6.30 pm after leaving his child and wife at his house. PW4 also deposed that her husband had gone to the market at about 6.45 pm and the deceased Salman was with them at that time as he was also insisting to go with his father Mohd. Wahid (PW3). The statement of these two witnesses would show that around 6.30/6.45 pm, the deceased Salman was at his residence. Even if the statement of PW19 is accepted to be correct that he had seen the accused in the company of the deceased, still his evidence will not be sufficient to connect the accused with the offence because he saw them at 6.00 pm while thereafter the child was at his home at 6.30/6.45 pm with his parents. So, this evidence about the last seen evidence, is not found satisfactory. Further the incident is of 15.12.2004 while the dead body of deceased was recovered on 22.12.2004. So, the time gap between the time when deceased last seen with accused and when dead body found, is too long.
CONDUCT
16. The prosecution also rely on the conduct of the accused. Section 8 of the Evidence Act make a previous or subsequent conduct of a person relevant. If the conduct of an accused person after the incident has taken place is found unnatural, then it creates a strong suspicion against him. However, it may also be noted that such an unusual conduct by itself SC No. 91/08 18/28 State vs. Rameshwar will not be sufficient to connect the accused with the offence. It has been observed in the case of Thimma vs. State of Mysore AIR 1971 SC 1871 that the conduct is relevant U/s 8 Evidence Act and might be indicated of guilty mind to some extent. But this is not the only conclusion to which it must lead the court. Even innocent persons, when suspected of grave crimes, being tempted to evade arrest; such is the instinct of self preservation in an average human being.
17. In the present case, PW3 Mohd. Wahid, PW4 Mrs. Naimun Nisha, PW12 Shiv Darshan and PW19 Ram Nandan Mukhiya have spoken about the conduct of the accused and deposed that the accused was not found after the date of the incident. The conduct of an accused after the commission of the offence is, of course, relevant but when it is alleged that the accused absconded after the incident, then the prosecution must prove his abscondance. If a person in a natural manner leave the place of incident, then no guilty mind can be imputed to him. But if a person is hiding his presence after the incident, then of course, it is an indicator of his guilty mind. In the present case, PW3 in the cross examination stated that after he reached farm house, the police had come within 1520 minutes. He deposed that accused Rameshwar was present alongwith the gardener Ram Nandan Mukhiya (PW19) at that time. Therefore, it is not the case that the accused had left the place of incident after he was last seen with the deceased and his whereabouts were not known and he was SC No. 91/08 19/28 State vs. Rameshwar concealing himself. PW12 Shiv Darshan stated that the accused was missing from the farm house since the day of missing of the deceased Salman. PW4 Mrs. Naimun Nisha also deposed that after the incident, she did not see accused Rameshwar in the farm house. However, in the cross examination, she admits that after she raised the cries that her son is missing, several persons had come there from the nearby place and the accused had come after about half an hour and after staying there for five minutes, he went away. She further deposed that after the arrival of her husband, police also arrived after some time. Thus, PW4 deposed that the accused came to the spot and went away after about five minutes. She further deposed that her husband came at the spot at about 8.15 pm and the police had arrived after her husband had reached the spot. This would mean that accused had left spot before complainant (PW3) came back from market. PW3 Mohd. Wahid on the contrary deposed that when he arrived at the farm house, the accused Rameshwar was present at the farm house alongwith the gardener Ram Nandan Mukhiya (PW19). So, this contradiction in the statement of PW3 and PW4 regarding the presence of the accused Rameshwar on the spot somehow weaken the prosecution case that the accused absconded from the spot after the incident. If the act of the accused missing from the spot is considered material qua the accused, then it was equally material for the PW19 who himself had deposed that after 2/3 days of the incident, he had also left the farm house. SC No. 91/08 20/28
State vs. Rameshwar Therefore, this evidence against the accused leaving the farm house after the incident is not only weak but also insufficient to connect him with the offence.
RECOVERY
18. The prosecution rely upon recovery of an HMT Watch from the possession of the accused when he was apprehended on 24.12.2004. The relevancy of this recovery is that this watch was with the deceased Salman when he went missing. PW3 Mohd. Wahid and PW4 Mrs. Naimun Nisha have deposed that the HMT Watch was given to the deceased Salman when he was insisting to accompany his father to the market. Now the recovery of an article belonging to the deceased from the accused, is undoubtedly one of the circumstance which the court can consider against an accused. Prima facie, it is a circumstance which always stand against an accused. Whether the presumption akin to illustration (a) in Section 114 of the Evidence Act can be raised against the accused depends on the facts on each case. The nature of the recovered article, the alleged manner of the possession by the accused, the place and the circumstance of the recovery and the length of time after which the recovery was effected, are some of the factors which are required to be taken into consideration while taking the circumstance of recovery of an article against the accused.
19. In the present case, PW16 Inspector M.L. Sharma was the SC No. 91/08 21/28 State vs. Rameshwar Investigating Officer when the alleged recovery was effected. He deposed that on 24.12.2004, he received a secret information that the accused is present at the bus stand at Anand Vihar. He alongwith SI Sunil Kumar (PW18) and the complainant Mohd. Wahid (PW3) reached at bus stand, Anand Vihar and on the pointing out of the complainant, the accused Rameshwar was arrested. The personal search was conducted as per the memo Ex. PW16/B and his disclosure statement was recorded vide Ex. PW16/C. "However, it is interesting to note that this disclosure statement Ex. PW16/C purported to be written by Inspector M.L. Sharma does not even bear his signature." PW16 Inspector M.L. Sharma further deposed that he conducted the search of the accused and during the search, one HMT Watch was recovered from the right pocket of the wearing pant of the accused. The said watch was seized vide memo Ex. PW16/D. Thereafter, he conducted the usual investigation. In the cross examination, he deposed that they had left the police station at about 6.30/6.45 pm and reached Anand Vihar bus stop at about 7.40/7.45 pm. He further deposed that after receiving the secret information, he had called SI Sunil Bhardwaj on his mobile and directed him to bring the complainant with him to the police station. PW18 Inspector Sunil Kumar is also a witness to the recovery. He deposed that on 24.12.2004, he joined the investigation with Inspector M.L. Sharma (PW16). The cross examination of this witness PW18 SI Sunil Kumar SC No. 91/08 22/28 State vs. Rameshwar will be interesting to go through. While PW16 said that he received the information at about 6.40/6.45 and they reached at 7.40/7.45 pm at Anand Vihar bus stand, PW18 deposed that he joined the investigation at about 6.30/7.00 pm. PW16 Inspector M.L. Sharma deposed that when he received the secret information, he had called SI Sunil Bhardwaj on his mobile and directed him to bring the complainant with him to the police station. Now PW18 SI Sunil Kumar deposed that when he joined the investigation, at that time complainant was with the Investigating Officer in the police station Mehrauli. Thus, both the witnesses have given a contradictory statement with regard to the joining of the complainant at the time of recovery of the HMT Watch from the accused. Now the statement of PW3 Mohd. Wahid who as per PW16 and PW18 was with them at the time of recovery will, however, throw light on the falsity of the statement of these two witnesses. PW3 Mohd. Wahid deposed in the cross examination as under: "I came to know that the accused has been arrested after 5/6 days. The accused was apprehended from Anand Vihar bus stand but I was not present at that time and I was told by the police that he is apprehended from Anand Vihar bus stand. The police met me on the way when I was going towards market.
There, I came to know that the accused has been SC No. 91/08 23/28 State vs. Rameshwar apprehended. Thereafter, I went to the police station Mehrauli. I identified the accused Rameshwar at the police station."
20. This statement of PW16 Inspector M.L. Sharma, PW18 SI Sunil Kumar and PW3 Mohd. Wahid makes the prosecution case doubtful that the recovery of HMT Watch was effected from the possession of the accused in the presence of the complainant and he was apprehended on the identification of the complainant. When PW3 Mohd. Wahid has categorically stated that he was not with the police when the accused was apprehended from Anand Vihar bus stand, then on whose identification, Inspector M.L. Sharma (PW16) and SI Sunil Kumar (PW18) apprehended the accused? It is not the case of the prosecution that the accused was known to these police officials or they had any photograph of the accused with them at the time of his apprehension.
21. This contradiction in the statement of the witnesses rather give support to the defence of the accused which he had put up when his statement was recorded U/s 313 Cr.P.C and also when PW16 Inspector M.L. Sharma and PW18 SI Sunil Kumar were examined in the court. In his statement U/s 313 Cr.P.C, the accused has stated that he was brought from his village on 23.12.2004 in the morning by the police official from Delhi who was accompanied by two local police officials. To support his this assertion, he had examined witnesses in defence. DW1 Juber Ahmed SC No. 91/08 24/28 State vs. Rameshwar is the Gram Pardhan who deposed that on 23.12.2004 at about 10/11 am, the mother of the accused came to him weeping and told that some police officials had taken her son with them. He further deposed that he alongwith the mother of the accused went to the police station Mohan Ganj and inquired about the accused and he was told that some police officials from Delhi had arrested the accused in relation to some case registered at Delhi. DW2 Parmeshwar is the father of accused. He deposed that on 23.12.2004 at about 8.30 am, five police personnels including two local police officials had come to his house and taken the accused with them. DW3 Smt. Ramawati, sister of the accused deposed on the same line. The accused also examined Constable Dinesh Pratap Singh, PS Mohan Ganj as DW4. He deposed that on 23.12.2004, he was posted at PS Mohan Ganj, District Rai Bareily, Uttar Pradesh. On that date, four police officials from Delhi had come to PS Mohan Ganj in Tata Qualis. On the direction of the SHO, PS Mohan Ganj, he had accompanied them to the house of accused who was sleeping at his home at that time. He was brought to PS Mohan Ganj. The accused was taken to Delhi. He deposed that the personal search of the accused was conducted in his presence, however, nothing was recovered from his possession. He further deposed that SI Smile Khan and HC Kanwarjit from PS Mehrauli, District South Delhi had visited PS Mohan Ganj. It may be noted that the witness had read these names from the certified SC No. 91/08 25/28 State vs. Rameshwar copy of the DD entry dated 23.12.2004 (MarkA). This DD entry dated 23.12.2004 was made at PS Mohan Ganj.
22. The statement of defence witnesses carry the same value as the prosecution witnesses. Their statement cannot be disbelieved simply because they support the accused. The law does not make any difference between a prosecution witness and a defence witness. The witnesses are examined neither in favour of the accused nor in favour of the prosecution, they are examined in the interest of justice to enable the court to arrive at a just decision of the case. The recovery of the HMT Watch from the possession of the accused at ISBT, Anand Vihar on 24.12.2004 in the evening, does not inspire confidence. Not only the presence of the accused at ISBT, Anand Vihar, is doubtful rather it can be said that the Investigating Officer somehow wanted to show the apprehension of the accused within the jurisdiction of Delhi and, therefore, a story was made out which was not supported by the complainant (PW3) Mohd. Wahid, who as per the prosecution case, was with the Investigating Officer at the time of apprehension of the accused.
23. The prosecution alleged that the HMT Watch was recovered from the right pocket of the wearing pant of the accused. The incident allegedly took place on 15.12.2004. The accused as per the prosecution case was apprehended on 24.12.2004. It sounds very strange that the accused who could very well have known that the possession of this watch SC No. 91/08 26/28 State vs. Rameshwar can connect him with the offence, was still roaming around while keeping the said watch in his pocket. The court cannot accept blindly any unreasonable theory propounded by the prosecution. The intrinsic worth of the evidence has to be considered. As has been observed by the Hon'ble Supreme Court in State of Punjab vs. Jagir Singh Baljit Singh AIR 1973 SC 2407, a criminal trial is not a fairy tail wherein one is free to give flight to one's imagination and fantasy. In arriving about the guilt of the accused, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
24. The evidence which has been produced by the prosecution on the record, is not found sufficient enough to return the finding of the guilt of the accused. The prosecution had heavily relied upon the circumstance of motive and the conduct of the accused subsequent to the incident. Witnesses had deposed that the accused was removed from the service on the complaint by the complainant Mohd. Wahid. Witnesses also deposed that the accused had left the farm house after the incident but it has also come in the evidence that after the child Salman was kidnapped, the accused was present at the farm house alongwith the complainant when the police had come there. So, the circumstances of motive and the conduct imputed to the accused may raise some suspicion against him but that is not sufficient to prove the case against accused. A suspicion howsoever strong it may be, cannot take the place of proof. So far as the SC No. 91/08 27/28 State vs. Rameshwar evidence of last seen is concerned, it is not found convincing. The prosecution also relied upon the recovery of HMT Watch from the accused but the evidence in this regard cannot be believed by any stretch of imagination.
25. Thus, due to paucity of sufficient evidence against the accused showing his culpability, the accused Rameshwar is hereby acquitted of the charges U/s 363/302/201 IPC. He is in custody. He be released forthwith, if not required in any other case.
Announced in Open Court (AJAY KUMAR KUHAR)
on 25th May 2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 91/08 28/28