Delhi District Court
State vs . on 31 October, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.73/10
FIR NO. 71/08
U/S 365/302/201/34 IPC
PS Kanjhawala
Unique Case ID No. : 02404R0016672008
State
Vs.
1. Naresh Kumar s/o Hazari Singh
2. Aruna w/o Naresh Kumar
Both r/o VPO Jat Khore, Delhi.
Date when committed to the court of Sessions :17.10.2008
Date when case reserved for judgment : 22.10.2011
Judgment pronounced on : 31.10.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 24.04.2008, a missing report was lodged at the PS by one Neeraj Nain to the effect that his father Sahib Singh had gone at 9 a.m on 20.04.2008 for his duty as DTC Driver but did not return back by the said day and that report was lodged in DD No.11A which was marked to ASI Samunder Singh for inquiry but no clue could be found regarding SC No.73/10 Page 1/26 the said Sahib Singh.
2. Again, on 29.04.2008, the said complainant came to the PS and got recorded his statement to ASI Krishan Kumar as per which he was residing at H.No.113, Village Jatkhore, Delhi and was working as agriculturalist and his father was missing since 20.04.2008 regarding which he had already reported the matter to the police and that his mother Smt. Shanta Devi had told him that his father Sahib Singh had left in the company of one Naresh on 20.04.2008 at about 9 a.m and said Naresh had taken the said Sahib Singh after calling him from the house and that his said father did not reach to his place of work and that he of his own had verified from various persons of the village who had informed him that his father Sahib Singh was at the house of said Naresh and he had a suspicion that said Naresh had abducted his father .
3. On the basis of the said statement, the FIR u/s 365 IPC was got registered and during investigation, the said ASI interrogated the accused Naresh and arrested him and passed on the information to the Inspector, SHO of PS Kanjhawala, who reached the said spot and interrogated the accused Naresh and took the further investigation. The disclosure statement of the accused was recorded who pointed out the place of occurrence and at the instance of the accused Naresh, from his plot of land, the dead body of the deceased SC No.73/10 Page 2/26 Sahib Singh was got recovered and crime team inspected the spot, photographs of the recovery of dead body were taken and all the proceedings were covered in a Videography and at the pointing out of accused Naresh, the spade, with which the earth was dug for burial of dead body, was got recovered and coaccused Smt. Aruna was also arrested and Section 302/201/34 IPC was added in the case, autopsy on the dead body of the deceased was got conducted, exhibits of the case were sent to FSL and the result of the same was placed on record subsequently and the scaled site plan was got prepared and the charge sheet was filed.
4. The case of the prosecution in nut shell is that on 20.04.2008, at about 9.30 a.m, accused Naresh had gone to the house of deceased Sahib Singh and talked about taking liquor together and they purchased a liquor bottle of the Military Canteen for Rs.300/ from the wife of one Jagat Singh namely Smt. Santosh and in the way they met one Subhash s/o Shri Lal, who was also asked by them to accompany them but he went away and thereafter they consumed the liquor in the house of accused Naresh and when the deceased was under the influence of liquor, deceased started abusing accused Naresh on which he became angry and pushed the deceased at the floor and thereafter gave him leg blows but the deceased continued to abuse accused Naresh and thereafter accused Naresh dashed the head of the deceased against the floor many times and throttled his SC No.73/10 Page 3/26 mouth and nose due to which the deceased died and this incident was of about 12.30 p.m on 24.04.2008 and thereafter the dead body of the deceased was removed with the help of his (the accused) wife Smt. Aruna, the accused and with the help of tripaul and rope, the dead body was tied inside a plastic bag and in the night time, in the plot in front of his house, at about 11 or 11.30 p.m, accused Naresh dug a pit with the help of a spade and buried the dead body in the same.
5. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 03.02.2009, framed charge against the said two accused u/s 201/34 IPC and a separate charge was framed u/s 302 IPC against accused Naresh Kumar which were amended vide my order dated 24.11.2010 as the date of murder was wrongly mentioned as 29.04.2008 in the earlier charge, to which the accused pleaded not guilty and claimed trial.
6. The prosecution, in order to prove its case, has produced as many as 21 witnesses, relevant of which have been discussed below.
7. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and did not prefer to lead any defence evidence.
SC No.73/10 Page 4/26
8. I have heard Ld. APP for the state and Sh. B.S. Rana, Advocate for both the accused and perused the record.
9. PW1 W/HC Sarita was the duty officer who recorded the FIR, copy of which is Ex.PW1/A and she also proved DD No.11A, copy of which is Ex.PW1/C. PW2 HC Naresh was the MHC(M) who deposed regarding deposit of the exhibits of the case in the Malkhana and sending the same to FSL. PW4 L/Ct. Shakuntala was the witness of arrest of accused Aruna vide memo Ex.PW4/A and Ex.PW4/B and the disclosure statement Ex.PW4/C and the pointing out of the place from where the dead body was recovered vide memo Ex.PW4/D. PW6 SI Manohar Lal proved the scaled site plan as Ex.PW6/A. PW7 SI Baljeet Singh was the In charge of the Crime Team who inspected the spot vide his report Ex.PW7/A and in his cross examination, he admitted that place where the earth was dug for the recovery of the dead body was having a free flow sand which was not fixed and that he had not signed any memo to the effect that the accused allegedly pointed out the place of the buried dead body nor he signed the recovery memo of the dead body. PW8 Dr. Manoj Dhingra was the autopsy surgeon who proved the autopsy report as Ex.PW8/A and his subsequent opinion as Ex.PW8/C and he opined that injuries mentioned in the report Ex.PW8/A on the person of the deceased could be caused by fall or dashing against the floor or similar such force. PW9 Sh. Surender was the photographer who SC No.73/10 Page 5/26 made the Videography of the recovery of the dead body and CD of the same which is Ex.P1. In his cross examination, he answered that when he reached the spot, 1520 villagers, 1015 police officials including SHO of PS Kanjhawala were present there. He further answered that the sand was fresh and was free flowing. PW11 Ct. Kuldeep removed the dead body of the deceased Sahib Singh to the mortuary of SGM hospital which was handed over to the relatives of the deceased after autopsy vide memo Ex.PW3/C. PW12 ASI Samunder Singh who received DD No.11A regarding missing of the deceased deposed about efforts made by him to trace out the deceased. PW13 Ct. Rohtash deposed that on 29.04.2008, he received a copy of FIR and original rukka from duty officer for giving the same to ASI Krishan at Village Jatkhore which he handed over to the said ASI and thereafter, on the asking of IO, he called the photographer and the Videographer who took the photographs of the dead body and prepared Videography also and thereafter he deposed about inspection of the spot by the crime team, removal of the dead body to the mortuary and he identified the photographs already Ex.PW5/A1 to A13. He further testified that accused Naresh present in court was apprehended at the spot by the IO and he is depicted in photograph Ex.PW5/A5 and his wife Smt. Aruna, present in court, was also arrested and he further proved the CD which is already Ex.P1. In his cross examination, he replied that he was handed over SC No.73/10 Page 6/26 with the copy of FIR at about 1 p.m on 29.04.2008.
10. PW14 was ASI Krishan Kumar who was the initial IO and who recorded the statement of complainant Neeraj suspecting over Naresh as the accused and he recorded the statement Ex.PW3/B of the said complainant and prepared the rukka after making his endorsement from point B to B in Ex.PW1/B and gave the same to the duty officer for registration of FIR and thereafter he along with complainant went to Village Jatkhore where Ct. Sunil met him being on patrolling duty and was joined in the investigation and they reached the house of accused Naresh from where they learnt that accused had gone to Qutubgarh and that Ct. Rohtash came at about 1.30 p.m at the said village Jatkore and handed over copy of FIR and rukka to him and thereafter he along with complainant and said two constables again went to the house of accused Naresh where he was found present and he interrogated the accused and recorded his disclosure statement Ex.PW14/A and thereafter he informed the SHO about the disclosure statement of the accused who reached at the spot along with staff and thereafter he (the witness) arrested accused Naresh u/s 365 IPC vide memos Ex.PW14/B and Ex.PW14/C and further investigation was entrusted to the SHO Inspr. Sandeep Byala and the crime team was called at the spot and photographer and videographer were called at the spot and thereafter the accused led the police party to the said plot and pointed out the SC No.73/10 Page 7/26 place from where a dead body in a plastic bag was recovered at the instance of the accused and photographs were taken and videography vide CD Ex.P1 was made and the dead body was seized and thereafter wife of accused Naresh namely Smt. Aruna, present in the court, was also arrested and interrogated and her disclosure statement was recorded and the dead body was removed to the mortuary of SGM hospital which was identified by the son of the deceased namely Neeraj. In his cross examination, he admitted that DD No.11A dated 24.04.2008, was got registered by Neeraj and he further admitted that at the time of interrogation of accused Naresh, so many public persons including son of the deceased and wife of the deceased were present but he did not remember as to whether wife of the deceased also signed disclosure statement of accused Naresh but son of the deceased namely Neeraj signed the disclosure statement and the disclosure statement Ex.PW14/A was confronted to the witness where signatures of PW Neeraj did not appear.
11. PW20 Ct. Dalbir Singh was the photographer who took the photographs of the said spot of the recovery of the dead body which are already Ex.PW5/A1 to A13 and negatives of the same were proved by him as Ex.PW20/A1 to A13.
12. PW21 was the subsequent IO of the case ACP Sandeep Byala who deposed regarding investigation conducted in the case on the SC No.73/10 Page 8/26 lines on which PW14 had already deposed and he further proved the spade by which the earth was dug for burying the dead body by the accused recovered at the instance of accused Naresh from inside his house vide memo Ex.PW21/A and thereafter said IO prepared the rough site plan Ex.PW21/B. He further deposed regarding arrest of accused Smt. Aruna who pointed out the said place from where the dead body was recovered. He proved his application for preservation of the dead body as Ex.PW21/C and he also seized the viscera of the deceased from autopsy surgeon along with sample seal vide memo Ex.PW21/D and he seized the CD of the videography vide memo Ex.PW21/E and on 23.07.2008, he moved an application for subsequent opinion of the autopsy surgeon Ex.PW21/F and the opinion is Ex.PW8/C and thereafter he got prepared the scaled site plan and send the exhibits to the FSL and he identified the CD as Ex.P1 and spade as Ex.P2. In his cross examination on behalf of the accused, he admitted that he did not join the initial raid which was conducted at village Jatkhore. He denied the suggestion that ASI Krishan Kumar recorded the disclosure statement and he volunteered that it was he who recorded the disclosure statement. He replied that the statement of PW Neeraj was not recorded by him.
13. Coming to the public witnesses, PW3 Neeraj deposed that deceased Sahib Singh was his father who was working as driver in DTC and the deceased left for duty on 20.04.2008 but did not return SC No.73/10 Page 9/26 back on that day and that he along with his family members made search for his father but when he could not be traced, he got lodged DD No.11A dated 24.04.2008 at PS Kanjhawala which is Ex.PW3/A and that after 24.04.2008 also, they continued search of the deceased but could not trace out him and that on 29.04.2008, some villagers informed him that some bad smell was coming from the mud and that some of the villagers informed the police which arrived at the spot and after the arrival of the police the dead body was recovered from the mud and the police officials asked him to identify the dead body which was identified by him as that of his father and his statement to that effect Ex.PW3/B was recorded and after that his signatures were obtained by the police on 34 blank papers. He further testified that on the following day after the postmortem examination, the dead body was handed over to them by the police against receipt Ex.PW3/C and that neither his mother nor any neighbour had told him as to with whom his father had gone on 20.04.2008 and that the dead body of his father was recovered from a pond which was seized by the police vide seizure memo Ex.PW3/D and he volunteered that only his signatures were obtained on Ex.PW3/D when it was a blank paper and that the land of the pond belonged to Gram Sabha and the dead body was found in a plastic bag and he did not know anything else about the case.
14. PW3 was declared hostile by the prosecution and cross SC No.73/10 Page 10/26 examined by the Ld. Addl. PP on behalf of the State wherein he denied the suggestion that he made 2 or 3 statements to the police or that he signed his statement Ex.PW1/B or that he made any statement to the police that his mother Smt. Shanta Devi told him that his father Sahib Singh left the house at 9 a.m on 20.04.2008 in the company of accused Naresh Kumar who had come to call his father from the house or that thereafter his father did not reach for his duty and was found missing and this portion was confronted with his previous statement Ex.PW1/B where it was found so recorded. He further denied to have made any statement to the police that some villagers had informed him that on 20.04.2008 they had seen the deceased with accused Naresh Kumar at the house of the accused or that he suspected the accused Naresh as had kidnapped his father and confined at some place and this portion of his deposition was also confronted from the said previous statement Ex.PW1/B where it was found so recorded. He further admitted that videography was done at the time of recovery of dead body of his father. He further denied to have stated to the police that accused Naresh led the police party to his vacant plot in front of his house and got recovered the dead body of his father and this portion was also confronted with pointing out memo Ex.PW3/E where it was so recorded and he volunteered that his signatures were obtained on Ex.PW3/E when it was blank. He denied to have stated before the police that between SC No.73/10 Page 11/26 20.04.2008 and 24.04.2008, he had made inquiries from accused Naresh with regard to whereabouts of his father but accused could not give any satisfactory answer and started talking rubbish on which he got suspicious and got the case registered in the PS and this portion was also confronted with his statement dated 23.07.2008 recorded u/s 161 Cr.PC where it was so recorded. He admitted that accused Naresh belonged to his village and uncle in relation.
15. In his cross examination on behalf of the accused, PW3 admitted it as correct that after the recovery of the dead body, police called the videographer and again after covering the dead body by the mud, the videography was done in the presence of accused Naresh. He further admitted it as correct that dead body was recovered much prior to the arrest of accused Naresh.
16. PW5 Ashish was one of the villagers who deposed that on 29.04.2008, he along with other villagers reached near a vacant plot in front of the house of uncle Naresh, the accused present in court, at a pond from where the dead body of Sahib Singh resident of their village was found in a plastic bag tied with a plastic rope and the pit was dug and it was measured which was 1½ or 2 feet in depth and the scene of recovery of the dead body was videographed and photographed by the police and that the photographs are Ex.PW5/A1 to A13 and in the photographs Ex.PW5/A1, A2, A3 and A13, at SC No.73/10 Page 12/26 respective points X, he himself has been depicted at the said spot and he further identified the CD of the videography as Ex.P1 and it was observed by the court that CD was substantially depicting accused Naresh along with police officials and the villagers of Village Jatkhore and the accused Naresh pointed out a place on the ground which was dug with the help of spades by the three villagers including the witness and they were softly removing the sand and after removing the sand up to a considerable depth, the said villagers removed the sand with their own hands and thereafter a plastic bag tied with a rope was recovered which was opened by two persons including the witness and a tripaul like cloth in which the dead body was wrapped was being removed by the witness and the dead body of Sahib Singh was recovered and thereafter the dead body was removed by the police from the spot in a tempo.
17. In his cross examination on behalf of the accused, PW5 replied that he was working as driver in DTC and deceased was his uncle and that he came to know about missing of the deceased from the family members either on 20.04.2008 or on 21.04.2008 but he did not make any search for the deceased. He further answered that all other family members of deceased were making search for him since the date of his missing and he reached near the vacant plot at about 2 p.m on 29.04.2008 and the villagers about 200 to 250 were also present and when he reached near the said plot, police was SC No.73/10 Page 13/26 already present there. He further answered that the sand which was removed by them was not in a fixed position and it was quiet fresh and easy to be removed and it was not dug as such but the sand was removed only. He further replied that he found the son of the deceased namely Neeraj already present there with other villagers and police officials when he reached the said spot. He replied that his brother Amit informed him on his mobile phone that dead body of Sahib Singh had been recovered and that he reached the spot within 1520 minutes after receiving of the said information.
18. PW10 Subhash Chander deposed that on 20.04.2008, he left his house at about 9 a.m for going to his fields and on the way he met accused Naresh and Sahib Singh and he identified Naresh as the accused present in court and Sahib Singh is now deceased and that they asked him to sit with them for tea and that he sought excuses from them as he had to go to fields and thereafter he did not know what happened and that police of PS Kanjhawala made inquiries from him but his statement was not recorded by the police. PW10 was declared hostile by the prosecution and was cross examined by the ld. Addl. PP in which he denied to have made any statement to the police that accused Naresh and deceased Sahib Singh were carrying liquor bottles with them at that time and also offered him to drink and that on previous occasions also he had taken the liquor with them and that on the said day he was not in a mood of taking SC No.73/10 Page 14/26 liquor and this portion was found recorded in his previous statement Mark PW10/A and he volunteered that he never had drinks with the accused and deceased. In his cross examination on behalf of the accused, he replied that he knew Neeraj, the son of the deceased, but he did not meet Neeraj on 20th or 21st April, 2008. He replied that he never told the family members of the deceased that he had seen Sahib Singh, the deceased and accused Naresh together on 20.04.2008.
19. PW15 Ramesh deposed that he was serving in Railway Police and on 29.04.2008, accused Naresh present in the court came along with the police to his village Jatkhore and pointed out a place from where the dead body of Sahib Singh in a plastic bag, his (the witness) cousin, was recovered which was tied with rope and was wrapped in a white colour plastic sheet and he identified the dead body of his cousin. In his cross examination on behalf of the accused, he replied that Neeraj was son of Sahib Singh and deceased Sahib Singh was missing since 20.04.2008 and that he was on his duty at AIIMS Railway Reservation Counter. He admitted that said Neeraj, son of deceased, told him that dead body of his father had been recovered from a plot and that he did not sign any paper regarding recovery of the dead body and that accused Naresh was arrested on 29.04.2008 and he was on his duty at that time and that he received this information from family members while he was SC No.73/10 Page 15/26 present at his duty. He further replied that the distance between his village and place of duty was about 4042 kilometers and he received the information at about 12 or 12.30 p.m and reached the village at about 3 or 3.40 p.m.
20. PW16 Sh. Rakesh deposed that he was serving in Post Office and on 29.04.2008, accused Naresh present in the court, came along with the police to their village and pointed out a place from where the dead body of Sahib Singh in a plastic bag, who was his cousin, was recovered after digging the earth up to a depth of 1 or 1½ feet and the scene of recovery was got videographed by the police and that he identified the dead body of his cousin which was wrapped with a tripaul and tied with rope and the body was taken into possession vide memo Ex.PW3/D which was signed by him at point B and he had also signed the receipt Ex.PW3/C whereby the dead body of Sahib Singh was handed over to them by the police after the postmortem examination and his statement identifying the dead body Ex.PW8/B1 was also recorded. In his cross examination on behalf of the accused, he replied that police obtained his signatures on 34 papers at the time of handing over of dead body to him and Neeraj.
21. PW17 Smt. Santosh deposed that deceased was her brother in law and accused Naresh present in court was also her brother in law SC No.73/10 Page 16/26 in family relation and that on 20.04.2008, she was cooking food at about 8.40 or 9 a.m when accused Naresh came inside her house and Sahib Singh was standing outside the house and that accused Naresh asked for a bottle of liquor on which she refused to give him and that accused Naresh requested her to give the liquor bottle and in future he would not ask for the same. She further testified that her father in law was retired from Army and as such, he was having a quota of liquor with him from the Army Canteen and in these circumstances the liquor bottles were available at her house which were given to her by her father in law for keeping the same secretly and safely and that on the request of accused Naresh, she gave him one liquor bottle which he took and asked Sahib Singh to go along with him so that no one could disturb them. The witness was put with a leading question by the Ld. Addl. PP wherein she denied to have stated to the police that she charged Rs.300/ for the said liquor bottle from said accused Naresh and that the police might have recorded the said fact of charging money by her of its own. In her cross examination on behalf of the accused, she replied that the police did not record her statement. She further replied that she had stated the said facts on 20.04.2008 to all her relatives.
22. PW18 Smt. Shanta Devi is the wife of the deceased who deposed that on 20.04.2008, she was present at her house along with her husband and other family members and her husband was getting SC No.73/10 Page 17/26 ready for going to his duty and in the meantime, accused Naresh present in court came and called her husband for accompanying him for consuming liquor and that she refused accused Naresh for the same but accused jumped inside the gate of her house, unbolted the door and thereafter he went inside her house and took her husband along with him and at that time, accused Naresh had not consumed liquor but her husband had taken little liquor at that time and that she had gone to the house of accused Naresh in search of her husband but there she came to know that neither Naresh nor her husband had come there. The witness was cross examined on behalf of the State as she was resiling from her previous statement wherein she replied that police might have recorded her statement of its own but she had narrated the said facts to the police. She admitted that she had stated to the police that her sister Santosh, w/o Jagat Singh (PW17) had informed her that accused Naresh and Sahib Singh had come to her house asking for a bottle of liquor and purchased the same from her.
23. In her cross examination on behalf of the accused, PW18 replied that police did not reduce her statement into writing and that she did not make a report to the police on 20th, 21st, 22nd, 23rd April, 2008 regarding accused Naresh taking her husband forcibly. She further replied that on 24.04.2008 a missing report was lodged with the police by her father in law and her son Neeraj but she did not SC No.73/10 Page 18/26 accompany them to the PS. She further answered that before lodging the missing report on 24.04.2008, she herself also made search for her husband along with her family members including her son Neeraj and her father in law Sh. Hoshiar Singh. She further replied that her son Neeraj did not tell her anything from 20.04.2008 to 24.04.2008. She volunteered that she came to know regarding the death of her husband on 29.04.2008 when his dead body was recovered. She further replied that she narrated the fact of accused Naresh jumping into her house and forcibly taking her husband with him after opening the bolt, to her son and other family members on 20.04.2008. She replied that she was not informed by her son Neeraj regarding the contents of missing report wherein it is mentioned that her husband had left for his duty on 20.04.2008 at 9 a.m and since then he had not turned up. She replied that her husband was posted at DTC depot, Rohini I, and she visited there on 20.04.2008 and 21.04.2008 in search of her husband along with her younger son but she was informed that her husband had not come on his duty on 20.04.2008.
24. PW19 Sh. Devender Singh deposed that he was serving in Delhi Police and that his cousin Sahib Singh was missing and that on 29.04.2008, he came to know that the dead body of his said cousin had been recovered by the police and that he reached the spot where so many public persons were present with the police and the dead SC No.73/10 Page 19/26 body was recovered thereafter by the police and that he also helped the police along with other villagers namely Ramesh, Neeraj and Ashish etc and that he was not aware as to at whose instance the dead body was recovered. He also did not know as to in what material the dead body was covered and that his statement was not recorded by the police nor he was interrogated by the police. PW19 was declared hostile by the prosecution and was cross examined on behalf of the State wherein he denied the suggestion of his statement recorded by the police on 29.04.2008 or that the dead body was recovered at the instance of accused Naresh Kumar wrapped in a polythene bag after digging the earth and he was confronted with his previous statement Mark PW19/A where it was found so recorded.
25. From the said evidence on the record it is not in dispute that there is no eye witness of the murder of the deceased and the case is resting on the circumstantial evidence. Needless to repeat the law laid down by the Hon'ble Supreme Court in plethora of judgments that When a case rests on upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;SC No.73/10 Page 20/26
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else;
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted.
(6) onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea."
26. The reference for the said proposition may be given of the judgments of the Hon'ble Supreme Court as AIR 1954 SC 621, AIR 1984 SC 1622, 2008 (3) RCR (Crl.) page 563, 2008(1) RCR (Crl.) 870, 2009 (1) RCR (Crl.) 251.
27. Judging in the light of the said proposition of law laid down by the Hon'ble Supreme Court, the first circumstance in the present case marshaled against the accused Naresh Kumar is that he was last seen in the company of the deceased. PW18 Smt. Shanta Devi, wife of the deceased, deposed that accused Naresh, on 20.04.2008, called her husband from the house and took him along with him and at that SC No.73/10 Page 21/26 time accused Naresh have not consumed liquor but deceased had taken little liquor at that time and that she had gone to the house of accused Naresh in search of her husband but there she came to know that neither accused Naresh nor her husband had come there. Surprisingly she did not tell this fact even to her son PW3 Neeraj, who got recorded the missing report with the police vide DD no.11A Ex.PW3/A on 24.04.2008, as the said DD is silent about deceased leaving with the accused Naresh on 20.04.2008. This is most unnatural conduct of a wife in the said circumstances despite the claim of the family of the deceased that they were searching for the deceased right from 20.04.2008 till 24.04.2008 and thereafter also. The said deposition of PW18 was further sharply contradicted by the deposition of PW3, the son of the deceased, that neither his mother (PW18) nor any neighbour told him as to with whom his deceased father had gone on 20.04.2008 as, to his information, the deceased had gone to attend his duty on 20.04.2008.
28. Similarly, another witness for the last seen evidence was PW17 Smt. Santosh who claimed herself to be knowing both the deceased and the accused Naresh being in her relation and stated to have given a bottle of liquor to accused Naresh on 20.04.2008 when the deceased Sahib Singh was standing outside the house. In her cross examination, she specifically answered that she had stated the said facts on 20.04.2008 to all her relatives and her sister and her SC No.73/10 Page 22/26 husband and other male members of her family were searching for the deceased. Again the said fact has not been corroborated by any other witness to the effect that PW17 told about handing over the liquor bottle to accused Naresh and deceased Sahib Singh on 20.04.2008. Even PW18, the wife of the deceased, did not depose the said fact in her examination in chief but it was only in the cross examination on behalf of the State by the Ld. Addl. PP that she admitted that she had stated to the police regarding PW17 selling a bottle to the accused Naresh and Sahib Singh whereas PW17 herself has denied that she has sold or accused Naresh purchased the liquor bottle.
29. Another witness of the last seen evidence is PW10 Subhash Chander who, on 20.04.2008, while going to his field at about 9 a.m, met accused Naresh and the deceased Sahib Singh who offered him a cup of tea to which he refused and in his cross examination, he admitted that he did not meet PW3 on 20th or 21st April, 2008 and he never told the said fact to the family members of the deceased Sahib Singh of having seen both the accused and the deceased on 20.04.2008. Thus, the said unnatural conduct of PW10 and PW17 in not telling the fact to anybody of the said last seen evidence further gives a jolt to the story of the prosecution and the said circumstance cannot be said to have been established on the record beyond reasonable doubt.
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30. Next circumstance proposed against both the accused is the recovery of the dead body of the deceased at the instance of accused Naresh Kumar and the said place was also pointed out by accused Aruna. Bare reading of the deposition of PW3, the son of the deceased, completely wipes out the evidence of the dead body having been recovered at the instance of accused Naresh when he admits in his cross examination on behalf of accused as correct that after recovery of the dead body police called the videographer and again after covering the dead body by the mud the videography was done in the presence of accused Naresh. He further admitted it as correct that dead body was recovered much prior to the arrest of accused Naresh. His said admissions in the cross examination are also corroborated by other witnesses who were allegedly present at the time of recovery of dead body regarding which videography vide CD Ex.P1 was prepared. For example, PW5 Ashish, PW7 SI Baljeet Singh, PW9 Surender deposed that the sand which was removed at the time of recovery of the dead body was not in a fixed position and it was quiet fresh and easy to be removed and it was not dug as such but the sand was removed only and the place where the earth was dug was having a free flow sand. In the said circumstances, it cannot be held that it was the accused Naresh at whose instance the dead body was recovered for the first time. The presence of PW3, the son of the deceased, at the relevant time is not disputed at the SC No.73/10 Page 24/26 time of alleged recovery of the dead body and in these circumstances, the prosecution has miserably failed to establish the link in the chain as regards the recovery of the dead body at the instance of accused Naresh or that both the accused buried the dead body at the said alleged place so as to attract the offence of Section 201 IPC against them also.
31. Next circumstance is the recovery of the spade, with which the accused allegedly dug the land so as to bury the dead body of the deceased, vide memo Ex.PW21/A, regarding which PW13 Ct. Rohtash has not deposed anything though he is the witness of the recovery memo Ex.PW21/A and PW21, the IO of the case, has deposed about the recovery of the said spade and he identified the same as Ex.P2. In these circumstances, the recovery is not proved beyond reasonable doubt. Moreover, as per memo Ex.PW21/A, the said spade was kept in open in the house of the accused and the said place cannot be said to be in the exclusive possession of accused Naresh and such type of implements are generally available in the village houses such as the village in the present case where the house of the accused Naresh was situated. Even otherwise, if I take the recovery of the spade as proved, it does not establish that it was the same spade with which the accused Naresh allegedly dug the land for the burial of the dead body because there is no independent evidence on the record linking the accused with the spade Ex.P2. In SC No.73/10 Page 25/26 these circumstances, the recovery of the spade is not trustworthy to be used as a link in the chain of circumstantial evidence against the accused.
32. In view of my above said discussion, the prosecution has miserably failed to establish any of the link of the chain of circumstantial evidence much less the complete chain pointing out towards the accused and the accused only, as the persons who committed murder of the deceased and caused the evidence of the commission of that offence to disappear with the intention of screening the accused Naresh from legal punishment. Hence, the accused Naresh is acquitted of the charge u/s 302 IPC and both the accused are acquitted of the charge u/s 201/34 IPC also. The PB and SB of accused Aruna is hereby discharged and accused Naresh Kumar be set at liberty forthwith, if not wanted in any other case. The file be consigned to the Record Room.
(Announced in the open court on 31.10.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.73/10 Page 26/26