Delhi District Court
State vs 1. Sultan Ahmed @ Salman on 31 July, 2018
IN THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE:
SC No.1193/2016
FIR No.549/13
PS : Sun Light Colony
State Versus 1. Sultan Ahmed @ Salman
S/o Shri Abrar Ahmed
R/o T9, Sarai Kale Khan
New Delhi
2. Amar Singh Rawat @ Lalla
S/o Shri Bhagat Singh
R/o T79, Balraj Ka Makan,
Sarai Kale Khan,
New Delhi.
____________________________________________________
Date of Institution : 28.04.2014
Date of transfer of the case
to this court : 06.11.2017
Date of arguments : 25.07.2018
Date of judgment : 31.07.2018
JUDGMENT
1. As per case of prosecution, on 24.12.2013 at around 2:50 pm, a call was received from Police Control Room (PCR) at Police Post Sarai Kale Khan regarding quarrel at House No.46A near Chopal. DD No.15 was marked to ASI Shailender Singh for necessary action. ASI Shailender went to the spot where complainant Surender Kumar met SC No.1193/16 Page 1 of 50 him and stated that he had seen his younger brother going alongwith his friends Mohammad @ Raja, Nizam @ Kullu, Salman and Lalla for playing towards Barapulla, but his brother did not return back.
2. On the statement of complainant, ASI Shailender got the FIR registered u/s 365 IPC. Thereafter, further investigation was marked to SI Rajesh Kumar who recorded of witnesses and carried out investigation from Nizam @ Kallu and Raja @ Noor who disclosed that their associates namely Sultan Ahmed and Lalla have committed murder of Naveen and his dead body is kept in tunnel of Barapulla. IO went there and found a dead body of Naveen. His dead body was identified by the complainant.
3. The Crime Team was called at the spot. The photographer of Crime Team took photos of spot. The Incharge, Crime Team inspected the spot as well as dead body. The Crime Team after inspection of the scene of occurrence issued necessary instructions to the Investigating Officer. The dead body was then sent to the Mortuary and postmortem on the body of deceased conducted. The accused were interrogated and arrested and their disclosure statement was recorded. JCL Noor Mohammad and Nizam @ Kallu was found juvenile and therefore, separate proceedings were done against them and they were sent to Juvenile Justice Board for trial in accordance with law.
4. Both the accused persons were found involved in the SC No.1193/16 Page 2 of 50 commission of offence in the case and they were chargesheeted to face trial for committing the offence punishable under section 365/302/201/34 of The Indian Penal Code 1860 (in short "IPC").
5. Accused persons on their appearance, before the court of learned MM, were supplied copy of chargesheet and complete set of documents and thus, compliance of section 207 of The Code of Criminal Procedure, 1973 (in short "Cr.P.C.") was made.
6. As the offence under section 302 IPC is exclusively triable by the Court of Sessions, therefore, the case was committed to the Court of Sessions for trial in accordance with law.
7. Prima facie, sufficient material was found to frame charge against accused persons for offences punishable under section 365/302/201/34 IPC. Therefore, charge for the said offences was framed against accused persons on 21.05.2014, to which they pleaded not guilty and claimed trial.
8. In order to bring home the guilt against accused persons, prosecution has examined as many as 32 witnesses in all. The details of which are given as under :
(a) PW1 HC Rajender Singh, the Duty Officer, is a formal witness of the prosecution. He recorded DD Entry Ex. PW1/A. PW 27 is HC Kalu Ram, Duty Officer, is a formal witness of the SC No.1193/16 Page 3 of 50 prosecution. He has deposed that he registered case FIR No.549/13 and had given certificate vide Ex. PW27/B.
(b) PW2 SI Laxman Choudhary, is a formal witness of the prosecution. He deposed that IO directed him for postmortem of the deceased Naveen. He prepared application for preservation of the dead body and same is Ex. PW2/A. The dead body was sent to mortuary through Ct. Mahavir and Ct. Jitender with the above said application. He further deposed that on 25.12.13, on the direction of IO, two JCL namely Noor Mohammad @ Raja and Nizam @ Kallu were apprehended in this case and they were deposited at Sewa Kutir Observation Home, Kingsway Camp and receipt in this regard was handed over to IO.
(c) PW3 HC Ravinder, is a formal witness of the prosecution. He has proved on record the entries regarding various pullandas vide Ex. PW3/A to Ex. PW3/F.
(d) PW4 SI Rajesh Kumar has deposed that on 24.12.13, he was posted at PS Sun Light Colony as InCharge. On that day, Duty Officer informed him about the registration of FIR No.549/13 under section 365 IPC. Thereafter, he with SI Sandeep and HC Man Singh and Ct. Devender reached at the spot i.e. House No.46A, Sarai Kale Khan, where ASI Shailender informed him that he had sent rukka through Ct. Jitender for registration of FIR. After that, Ct. Jitender reached at the spot and handed over copy of FIR and original rukka to him for further investigation. Statement of Vijay Pal, Ravinder, Mahesh were recorded under section 161 Cr.P.C. who told that they SC No.1193/16 Page 4 of 50 had lastly seen Naveen with Nizam and Kallu, Noor Mohammad @ Raja, Salaman and Lalla on 22.12.2013 around 5:30 PM going towards Barapulla Flyover. JCL Nizam and Kullu revealed that they had killed Naveen on 22.12.13 in the Barapulla Tunnel and also disclosed that they can get the body of Naveen recovered from the Barapulla Tunnel. Thereafter, he alongwith staff reached at the Barapulla Tunnel and on the instance of JCL Nizam and Kallu and Noor Mohammad @ Raja, the dead body of Naveen was recovered. He called crime team at the spot and gave report to him vide Ex. PW 4/A. Thereafter, he lifted the exhibits i.e. blood in gauze and blood earth control and put in a small plastic container separately from four different places and sealed them with the seal of RS and seized the same vide Ex. PW4/B to Ex. PW4/E. He also prepared site plan Ex. PW4/F. He apprehended both the JCL and were sent to Observation Home through SI Laxman Choudhary. Thereafter, further investigation was marked to Inspecter Mahender Singh.
(e) PW5 is Vijay Pal, is a public witness, who deposed that on 22.12.13, he was present at Danny Ka Hotel at Sarai Kale Khan at around 5 or 5:30 PM when he saw four accused persons namely Raja, Kallu, Salman and Lalla alongwith Naveen, son of his brother and Ravi was having a cricket bat and they were going towards Barapulla. Thereafter, on 24.12.2013, police came to his house with Sunder since Naveen was missing from past three days. He further deposed that later on, he came to know that accused persons are addicted of drugs.
SC No.1193/16 Page 5 of 50(f) PW6 Sunder is the complainant of this case. He deposed that on 22.12.2013, his brother who was wearing Jeans and Pant and shirt was playing cricket in front of his Dairy at MCD Park alongwith the accused persons namely Raja, Kallu, Salman and Lalla and thereafter, he was going across the road towards Barapulla side as it was about 5:30 PM to 6 PM. Thereafter, when his brother did not come on the said night and he tried to search for him and on the next day, he saw accused Kallu and accused Raja and he inquired from them whereabout of his brother but they gave evasive reply. Thereafter, when he was unable to find his brother Naveen, he strongly asked Kallu and Raja who told him that they have killed his brother and put his body under flyover and stone with a view to conceal it at tunnel point near Barapulla flyover. He called police on 100 number. Police came and recorded his statement Ex. PW6/A. Thereafter, he alongwith police and accused Raja went to the spot at tunnel point and dead body of brother Naveen was recovered at the instance of accused Raja and Kallu. He identified the dead body of his brother Naveen. Thereafter, he expressed his suspicion to the police that accused persons namely Raja, Kallu, Salman and Lalla might be involved in disappearance of his brother Naveen.
(g) PW7 is Ravinder, is the brother of deceased Naveen who deposed that on 22.12.2013, his brother who was wearing jeans pant and shirt was playing cricket in front of his dairy at MCD park alognwith the accused persons namely Raja, Kallu, Salman and Lall whom he know well because they place in the neighbourhood and SC No.1193/16 Page 6 of 50 also habit of taken drugs etc and thereafter, his brother was missing. On 26.12.2013, he had visited mortuary of AIIMS and identified the dead body vide Ex. PW7/A and he had received the dead body after postmortem on the dead body of deceased.
(h) PW8 is Shri J.P. Mishra, Assistant Engineer, Barapulla Project, PWD, New Delhi who has deposed that he was working as Assistant Engineer, Barapulla Project. He deposed that on 01.12.2014, IO prepared site plan Ex. PW8/A and took photographs Ex. PW8/B to Ex. PW8/E.
(i) PW9 Mahesh Kumar is another public witness who has deposed on the same lines as deposed by PW7 Ravinder.
(j) PW10 Rohtash Kumar is formal witness of the prosecution. He had identified the dead body of his nephew Naveen at Mortuary and after postmortem, he received the dead body of deceased vide Ex. PW7/B.
(k) PW11 ASI Shailender Singh who deposed that on 24.12.2013, he was posted at Police Post Sarai Kale Khan and had deposed on the same lines as deposed by PW4.
(l) PW12 Inspector Mahesh Kumar is the formal witness of the prosecution. He has proved on record the scaled site plan Ex. PW 12/A.
(m) PW13 Inspector Ashok Kumar is the IO who carried out further investigation and prepared site plan Ex. PW13/A and has filed the challan after completion of investigation.
(n) PW14 Ct. Puneet is the member of crime team. He has SC No.1193/16 Page 7 of 50 proved on record the photographs Ex. PW14/A1 to Ex. PW14/A16 and negatives Ex. PW14/A17 to Ex. PW14/A34.
(o) PW15 is Dr. Shashank Pooniya, Senior Resident, AIIMS, New Delhi who has proved on record the postmortem on the dead body of deceased vide Ex. PW15/A. He opined the cause of death as shock due to hemorrhage. He deposed that injuries No.1, 2 and 3 mentioned under heading injuries were caused by sharp edged weapon. Injuries No.1 to 31 mentioned under heading injuries were antemortem in nature. The time since death at the time of postmortem was about four days.
(p) PW16 Dr. Chittranjan Behra, Assistant Professor, Department of Forensic Medicine, AIIMS, New Delhi. He is proved on record MLC Ex. PW16/A.
(q) PW17 is Inspector Mohinder Singh is the initial IO who carried out investigation in the case. He has proved on record the seizure memo of exhibits i.e. Viscera, blood in gauze, anal swab, perinal swab, control swab, nail clipping of left and right hand of deceased. During investigation, he arrested the accused Sultan Ahmed Ex. PW17/B and his personal search was conducted vide Ex. PW17/C and he also recorded his disclosure statement vide Ex. PW17/D. He also prepared pointing out memo Ex. PW17/E. He also recovered churi from the bushes near IDTR wall near walk way at the instance of accused Sultan and he prepared sketch Ex. PW17/F, pointing out memo and seizure memo Ex. PW17/G. He also prepared site plan Ex. PW17/H. He also seized the clothes of SC No.1193/16 Page 8 of 50 accused Ex. PW17/I. He also got the accused Sultan Ahmed medically examined Ex. PW17/J. He also seized the exhibits i.e. shoes and clothes of deceased vide memo Ex. PW17/K. He formally arrested the accused Amar Singh Rawat and prepared formal interrogation report Ex. PW17/L. He arrested the accused Amar Singh Rawat and his personal search was conducted vide Ex. PW 17/M and Ex. PW17/N. His disclosure statement was recorded vide Ex. PW17/O. He seized the clothes of accused Amar Singh Rawat vide Ex. PW17/P. He deposited the case property in Malkhana. He also prepared pointing out memo Ex. PW17/Q. He also seized exhibits of accused Amar Singh Rawat given by him vide Ex. PW 17/R. He also obtained opinion from AIIMS Hospital vide Ex. PW 17/S and Ex. PW17/T. Thereafter, he was transferred. He also proved his application Ex. PW17/U for postmortem examination on the dead body of deceased. He also proved the knife Ex. P1, pant and shirt of accused Sultan Ahmed as Ex. P2 and Ex. P3, Payjama and TShirt of accused Amar Singh as Ex. P4 and Ex. P5.
(r) PW18 (PW30) is Ct. Jitender has deposed on the same lines as deposed by PW11 ASI Shailender Singh.
(s) PW19 HC Maan Singh, PW20 Ct. Praveen Kumar and PW 21 Constable Mahavir who accompanied the IO Inspector Mahender Singh in the investigation and have supported the testimony given by IO Inspector Mahender Singh.
(t) PW20 SI Chet Ram is also one of the members of the crime team. He deposed that he tried to develop finger prints and chance SC No.1193/16 Page 9 of 50 prints from the spot, but no finger print or chance print could be developed as the spot was having pieces of cemented blocks. (u) PW23 is SI Sandeep Kumar who joined the investigation with the IO and has supported the version of PW17 Inspector Mohinder Singh.
(v) PW24 Ct. Harender is the formal witness of the prosecution. He obtained sealed pullanda from AIIMS Hospital and had given to the IO who seized the same vide Ex. PW17/K. (w) PW25 is HC Inderjeet, is a formal witness of the prosecution. He deposed that on receipt of call, he alongwith his staff reached at the spot where public persons produced two boys namely Noor Mohammad @ Raju and Nizam @ Kallu. In the meantime, local police reached and he has left the spot.
(x) PW26 Inspector Krishan Kumar is InCharge of the crime team and he has proved on record the crime scene report Ex. PW 4/A and had given to the IO.
(y) PW28 HC Manoj, is a formal witness of the prosecution. He deposed that on the direction of IO Inspector Mohinder, he had taken two juveniles to AIIMS Hospital for their medical examination. (z) PW29 Ct. Dinesh, is a formal witness of the prosecution. He deposed that he had taken 24 sealed exhibits from Malkhana and deposited to FSL.
(aa) PW31 is Ct. Rajesh, is a formal witness of the prosecution and has supported the version of PW IO Inspector Mahender Singh. He deposed that he alongwith IO had taken accused Amar Singh for SC No.1193/16 Page 10 of 50 his medical examination and exhibits were seized by IO. (ab) PW32 is Ct. Arun Kumar, is a formal witness of the prosecution. He deposed that he had deposited the exhibits on the directions of IO and deposited in FSL, Rohini.
9. On conclusion of prosecution evidence, statement of accused persons under section 313 Cr.P.C. was recorded wherein all incriminating circumstances / material was put to accused persons to which they claimed innocence and alleged false implication.
10. Both the accused persons denied to lead any evidence in their defence.
11. I have heard and considered the submissions advanced by Shri Mayank Tripathi, learned Additional Public Prosecutor for State and Shri Ramesh Rawat, learned Amicus Curiae for accused Amar Singh Rawat, Shri Vikas Arora, learned counsel for accused Sultan Ahmed and carefully perused the entire material on record.
12. Learned Additional PP has submitted that the prosecution has proved its case beyond reasonable doubt. On the other hand, learned defence counsels for accused persons have argued that prosecution has failed miserably to establish its case. They have argued that there are many contradictions in the statement of complainant and police officials which makes their statements SC No.1193/16 Page 11 of 50 doubtful. It is argued that benefit of doubt must be given to accused persons and they may be acquitted of the charges alleged.
13. The main points for consideration in the case is as to whether death of a human being has been caused and if so, whether the death was accidental or homicidal and further, as to who caused the death of deceased Naveen.
14. The present case is based on circumstantial evidence. There is no eyewitness who saw the accused committing murder of deceased. There is no direct evidence connecting the accused with the commission of offence in the case. An offence can be proved either by way of direct evidence or indirect or circumstantial evidence. In the case of Bodh Raj @ Bodha vs. State of J & K AIR 2002 SC 3164, Hon'ble Apex Court observed as under : "For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consist of SC No.1193/16 Page 12 of 50 evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principle fact can be legally inferred or presumed."
15. The Hon'ble Supreme Court dealt with the condition precedents which needs to be satisfied before the circumstantial evidence can be made the basis of conviction. It was held;
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
SC No.1193/16 Page 13 of 5016. The law is, thus, well settled that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused and the guilt of any other person. In the case of Bhagat Ram vs. State of Punjab AIR 1954 SC 621, it was laid down that where the case depends upon conclusion drawn from circumstances, the "cumulative effect" of the circumstances must be such as to negate the innocence of the accused and bring the offences home beyond any "reasonable doubt".
17. The basic principle of criminal law remains that while deciding about the guilt of the accused charged with the commission of an offence, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. The outcome of each case would depend upon its own facts and circumstances. While considering the evidence led by the prosecution, the Court has to be conscious not only about the cardinal principle of law that a person arrayed as an accused is presumed to be innocent till he is proved guilty, but at the same time, the presumption of innocence should not be carried too far, the dangers of exaggerated devotion to the rule should not be forgotten particularly in the light of escalating crime and escape of criminals. Keeping this philosophy in mind, Hon'ble Justice Krishna Iyer in the case of Shivaji Sahib Rao Bobade vs. State AIR 1973 SC 2622, SC No.1193/16 Page 14 of 50 has observed as under: "Our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice more potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocence."
18. Keeping in view the above principle of law, the evidence on the record needs to be scanned through to arrive at a conclusion. The entire case is based upon circumstantial evidence of last seen as well as alleged recovery of weapon of offence from the possession of the accused Sultan Ahmed.
19. The proceedings in the present case started on the basis of PCR call received on 24.12.2013 at about 02.45 p.m. and the complaint was of quarrel. PW1 HC Rajinder Singh was duty officer and he proved DD No 15, recorded at 2:50 PM, as Ex.PW1/A which was also in respect of quarrel. The PCR proceedings are marked as X2. It is noticed that as per the report of PCR, after reaching at the spot, there was no quarrel and it was reported that deceased Naveen was missing for about 5 days and that the suspects were some neighbour boys. It has been argued by learned defence counsel for accused Sultan that PCR call is the most reliable piece of evidence SC No.1193/16 Page 15 of 50 since it records the first information received about the incident and as per the same, on 24.12.13, the report was lodged that deceased was missing for about 5 days i.e. since 17.12.2013 whereas as per the charge sheet and the testimony of the last seen witnesses, the deceased was last seen with accused persons on 22.12.13. It has been argued that the accused persons have been falsely implicated in the present case as the deceased was missing much prior to the alleged date and section 114 of Evidence Act raises the presumption in favour of accused persons.
20. FIR, Ex. PW27/A was registered at the instance of elder brother of deceased namely Sunder @ Surender. It records that information was received at PS at 16.05 hours. He reported that on 22.12.2013 at about 5:30 PM, his younger brother Naveen had gone to play with his friends Noor Mohd. @ Raja, Nizam @ Kallu (hereinafter referred to be as "JCLs"), Salman and Lalla and that Sunder and his brother Rajender had seen him go with these four boys going towards Barapulla for playing cricket. His brother Naveen had not come back since then. These four boys are in habit of taking drugs and that he suspected that they had made his brother disappear somewhere. The information from control room of South East was received by PW1 at about 2:50 PM in respect of quarrel at house no. 46/A, Chopal Sarai Kale Khan. ASI Shailender and PW18, Ct. Jitender had proceeded to the spot. ASI Shailender, PW11, deposed that when he reached there, the complainant, Sunder, met them and two boys Noor Mohd. @ Raja, Nizam @ Kallu were also SC No.1193/16 Page 16 of 50 present there and on the ground of missing of Naveen, he recorded statement of Sunder, Ex. PW6/A and made endorsement and handed over the same to PW18, Jitender for registration of FIR.
21. PW4, SI Rajesh Kumar, has deposed that he and HC Man Singh also reached at the spot. ASI Shailender informed them that he had sent a rukka through PW18, Ct. Jitender for registration of FIR. He also deposed that there were 2 - 3 public persons who were relatives of abducted person Naveen and they had stopped JCLs. Statements of Vijay Pal, Ravinder, Mahesh were recorded who told that they had lastly seen Naveen with JCLs Noor Mohd. @ Raja, Nizam @ Kallu, Salman and Lalla on 22.12.2013 around 5:30 PM going towards Barapulla flyover. After that sustained investigation was conducted with the JCLs about the whereabouts of Naveen who revealed that they had killed him on 22.12.2013 in the Barapulla tunnel and disclosed that they can get the body of Naveen recovered from there.
22. As last seen witness, the prosecution examined PW5, Vijay Pal, PW6, Sunder, PW7, Ravinder and PW9, Mahesh Kumar who are all relatives of the deceased. It has been argued by learned counsels for both accused that the JCLs nowhere mentioned name of accused Salman and Lalla and only said that they had killed Naveen and these all witnesses gave different version of the last seen of deceased with the accused persons.
SC No.1193/16 Page 17 of 5023. PW5, Vijay Pal, is the brother of father of the deceased i.e. Chacha of the deceased and he deposed that on 22.12.2013, he was present at Danny ka Hotel at Sarai Kale Khan, New Delhi at around 5 to 5:30 PM, when he saw accused Sultan, Amar Singh Rawat @ Lalla, Noor Mohmad @ Raja and Nizam @ Kallu with Naveen and Ravi was having a cricket bat and they all were going towards Barapulla. He also deposed that police came to their house (i.e. house of PW5, Vijay Pal and PW6, Sunder) as brother of Naveen i.e. Sunder, called the police at around 2 to 2.30 p.m. on 100 no. as Naveen was missing for the past three days and the police started enquiry about the matter. He deposed that later on he came to know that Naveen was killed by Sultan, Amar Singh Rawat @ Lalla, Noor Mohmad @ Raja and Nizam @ Kallu (JCLs). He also deposed that later on, he came to know that the accused persons are addicted to the drugs.
24. PW6, Sunder, deposed that on 22.12.2013, Naveen was wearing jeans pant and shirt and was playing cricket in front of his Dairy at MCD Park along with accused Sultan and Amar Singh Rawat @ Lalla, Noor Mohmad @ Raja and Nizam @ Kallu and Sunder knew all of them well because they resided in the neighbourhood and also that they all are in habit of taking drugs etc. He also deposed that Naveen was going towards Barapulla side at about 5:30 PM to 6 PM and his brother Naveen did not come on the said night. He further SC No.1193/16 Page 18 of 50 deposed that he searched for him and on the next day, he saw accused Noor Mohmad @ Raja and Nizam @ Kallu and enquired from them whereabouts of his brother Naveen but they gave evasive reply. Sunder (PW6) has deposed that thereafter when he was unable to find his brother Naveen and strongly asked Noor Mohmad @ Raja and Nizam @ Kallu who told him that they had killed his brother Naveen and left his body under bricks and stone with a view to conceal it at tunnel point near Barapulla flyover. Sunder (PW6) called police on 100 and local police came to his house on 24.12.2013 and recorded his statement as Ex. PW 6/A.
25. PW7, Ravinder, deposed that on 22.12.2013, his brother Naveen was wearing jeans pant and shirt and was playing cricket in front of his dairy at MCD Park alongwith accused persons namely Raja, Kallu, Salman and Lalla whom he knew well because they stayed in his neighbourhood and were in habit of taking drugs. He deposed that thereafter his brother was missing. He deposed that on 26.12.2013, he visited mortuary AIIMS and identified the dead body of Naveen.
26. PW9, Mahesh Kumar, deposed that on 22.12.2013, at about 5:30 PM while he was going to Municipal Park, he saw his cousin Naveen going towards Park alongwith his friends Raja, Kallu, Salman and Lalla situated near Barapulla for playing cricket. One of them was having cricket bat in his hand. He also deposed that friends of SC No.1193/16 Page 19 of 50 Naveen were habitual of drug. He further deposed that after that Naveen was not traceable and on 24.12.2013, his dead body was recovered.
27. It has been argued by learned defence counsel for accused Sultan that all the last seen witnesses deposed that accused persons were drug addicts or were in habit of taking drugs however none of them has substantiated his statement as to which drug did they take, when and where they took drugs or who had seen them taking or purchasing which drug. No charge of NDPS was framed against them nor was the charge amended. Thus, testimony to that effect is hearsay and prosecution failed to prove beyond reasonable doubt and thus he did not crossexamine the witnesses on that aspect as he was not required to dwell upon their character. The submissions made by him are found to be correct.
28. It is further noticed that only PW5 has named one Ravi and no other last seen witnesses i.e. PW6, PW7 and PW9 has named him. The eyewitnesses in the present case are close relatives of the deceased. PW5, Vijay Pal, is the brother of father of the deceased i.e. Chacha of the deceased, PW6, Sunder @ Surender is the elder brother of deceased, PW7, Ravinder, is another brother of deceased and PW9, Mahesh Kumar is cousin brother of deceased. It seems unbelievable that Naveen who was staying in the same house in which PW5, PW6 and PW7 were residing was last SC No.1193/16 Page 20 of 50 seen by all of them on 22.12.2013 and was missing till 24.12.2013 but no police complaint was made by them for two days despite them being close relatives of deceased residing in the same house.
29. PW5, Vijay Pal, the real maternal uncle (chacha) of Naveen stated in his cross examination that he came to know about the incident on 24.12.2013 at about 2:30 PM and he did not know whether the deceased Naveen returned back in the night or not and also that he did not know about the deceased Naveen after seeing him lastly on 22.12.2013 to 24.12.2013 till about 2:30 PM. Learned defence counsel for accused Sultan has rightly argued that his testimony seems unbelievable in view of the fact that PW5 and Naveen were residing in the same house and were close relatives. What seems more astonishing is that PW6, Sunder @ Surender has deposed that he searched for Naveen and on the next day, he saw accused Noor Mohmad @ Raja and Nizam @ Kallu and enquired from them after whereabouts of his brother Naveen but they gave evasive reply and when he was unable to find his brother Naveen and strongly asked Noor Mohmad @ Raja and Nizam @ Kallu, they told him that they had killed his brother Naveen and put his body under bricks and stone with a view to conceal it at tunnel point near Barapulla flyover. Despite knowing all that, Sunder (PW6) called police on 100 number on 24.12.2013. PW6, Sunder @ Surender is the elder brother of deceased and despite coming to know on 23.12.2013 about the fact of Naveen having been killed by the JCLs, SC No.1193/16 Page 21 of 50 he did not contact police on the same day. Equally astonishing is the fact that PW6 has deposed that after recovery of the dead body of his brother at the said tunnel point, he expressed his suspicion to the police that the accused persons might be involved in disappearance of his brother. It is not understandable as to how despite seeing dead body of his brother, PW6 expressed suspicion to the police of disappearance of Naveen and despite knowing from extrajudicial confession of the JCLs, he expressed suspicion over accused persons instead of specifically implicating them by name for murder of Naveen. During crossexamination PW6 admitted that he knew the house of three accused persons i.e. Salman, Lalla and Raja but he did not visit the house of the accused persons on 22.12.2013 and 23.12.2013. This narration throws doubts on version of PW6 having lastly seen deceased Naveen with accused persons as it cannot be believed that if younger brother of a person does not come back at night on a day and does not return even for other two days, the said person does not even visit the house of those friends with whom he had seen deceased lastly but does not make enquiry from them.
30. Further it is noted that PW6 deposed that he came to know from the JCLs that they had killed his brother Naveen on 23.12.2013 but still on 24.12.2013, in his statement to police, Ex. PW6/A, he gave the report of missing of his brother Naveen and not of him having been killed by JCLs and PW6 had prayed for searching for his brother Naveen. Further in FIR as well as in Ex. PW6/A, there is no SC No.1193/16 Page 22 of 50 mention of presence of JCLs.
31. It was also argued by learned counsel for accused Sultan that PW15, Dr Shashank Pooniya, had conducted postmortem of deceased Naveen on 26.12.2013 and deposed that the time since death at the time of postmortem was about four days and the post mortem was conducted as per Ex. PW15/A on 26.12.2013 from 11:15 AM to 12:50 PM and thus Naveen was not alive in the evening of 22.12.2013 and thus could not have been possibly seen by any of the witnesses who have been examined by the prosecution as last seen witnesses. Learned counsel for accused Sultan also argued that the accused persons have been falsely implicated on the disclosure statement of JCLs. He argued that prosecution has examined PW6 Sunder who is brother of the deceased. This witness demolishes the entire case of the prosecution. Even the dead body was got recovered by these two accused persons. As such there was nothing to suggest that accused Sultan or Amar Singh Rawat was involved in the commission of the crime. JCLs had themselves stated that they had killed Naveen and had not named the accused persons to have killed Naveen. He argued that PW4, SI Rajesh Kumar, has deposed that after he reached the spot, 2 3 public persons who were relatives of Naveen were there and they had stopped JCLs and after sustained investigation conducted with the JCLs about the whereabouts of Naveen, they revealed that they had killed Naveen on 22.12.2013 in the Barapulla tunnel. Defence counsel also argued that similarly PW SC No.1193/16 Page 23 of 50 6 has deposed that when he strongly asked Kallu and Raja i.e. JCLs, they told him that they had killed his brother and put his body under bricks and stone with the view to conceal it at the tunnel point near Barapulla flyover. However, it is noticed that PW11, ASI Shailender Singh, also deposed that when he reached at the spot, both JCLs were examined by the IO and they had disclosed that they had killed Naveen along with two associates namely Salman and Lalla. The contradiction highlighted by learned defence counsel cannot however be ignored.
32. PW6 and PW11 have categorically stated that they made inquiry from the two juveniles Kallu and Raja and they made an extra judicial confession that they had killed the deceased and kept his body in Barapulla Tunnel. Extra judicial confession of JCL was brought on record and not challenged by prosecution. No question was put by way of reexamination to PW6 or PW11 as to what was meant by the expression 'they' when they had stated that 'they' had killed Naveen i.e. whether 'they' included two of them or all four of them i.e. Noor Mohd. @ Raja, Nizam @ Kallu, Salman and Lalla. Though PW11, ASI Shailender Singh, deposed that when he reached at the spot, both JCLs were examined by the IO and they had disclosed that they had killed Naveen alongwith two associates namely Salman and Lalla (i.e. Sultan and Amar Singh Rawat). However, the said statements, if any, made by the JCLs is not admissible in view of section 25 of Indian Evidence Act. Ex. PW 17/U, the application for conducting of postmortem examination of a SC No.1193/16 Page 24 of 50 dead body of the deceased, filed by PW17, Inspector Mohinder Singh, addressed to Autopsy Surgeon, Department of Forensic Medicine and Toxicology, dated 24.12.2013, bearing time of 9:40 PM, also records short summary of case and there also it has been recorded that "On 24.12.2013, on the complaint of deceased's brother Surender, case FIR no. 549/13 under section 365 IPC was registered and his friends who were last seen with the deceased were interrogated. They confessed to have killed the deceased and led the police to the place where dead body was lying.". It is an admitted case of prosecution that on 24.12. 2013, only the JCLs were caught hold of by the family of the deceased and they had confessed about killing Naveen and they alone had led the police to the place where dead body was lying. Here also, there is no mention of JCLs having mentioned the name of anybody else who had killed Naveen alongwith them. In view of these observations, I find force in the submissions of learned defence counsel that there are material contradictions in the testimony of the last seen witnesses. Testimony of the last seen witnesses has become tainted in view of the aforesaid observations. Prosecution has failed to prove beyond reasonable doubt that accused persons were last seen with the deceased Naveen on 22.12.2013.
33. PW4, SI Rajesh Kumar, who was the first IO deposed that on 24.12.2013, after sustained investigation was conducted with JCLs about the whereabouts of Naveen, they revealed that they had SC No.1193/16 Page 25 of 50 killed Naveen on 22.12.2013 in the Barapulla tunnel and also disclosed that they can get the body of Naveen recovered from there thereafter PW4, SI Rajesh Kumar, alongwith the staff reached at the Barapulla tunnel at the instance of JCLs and on their instance the dead body of the deceased Naveen was recovered and dry blood spot were found there. He immediately informed the senior officials and requested for Crime Team at the spot which reached at the spot and inspected the scene of crime. Crime team photographers took photograph of scene of crime on his direction. They handed over their report to him, Ex. PW4/A. Thereafter, he lifted the exhibits and prepared the unscaled site plan, Ex. PW4/F at the instance of JCLs. Thereafter, he got the pointing out memo, recovery memo of the dead body made and dead body was shifted to AIIMS mortuary.
34. PW6, Sunder, the elder brother of deceased Naveen, deposed that when he strongly asked Kallu and Raja who told him that they have killed his brother and put his body under Barapulla flyover under stones with a view to conceal it at tunnel point near Barapulla flyover. He called police on 100 number. Police came and recorded his statement Ex. PW6/A. Thereafter, he alongwith police and accused Raja went to the spot at tunnel point and dead body of brother Naveen was recovered at the instance of accused Raja and Kallu. He identified the dead body of his brother Naveen. The dead body of Naveen and his clothes were smeared with the blood.
SC No.1193/16 Page 26 of 5035. PW11, ASI Shailender Singh, deposed that on 24.12.2013, JCLs led him and his associates and at their instance, dead body was recovered from tunnel of Barapulla flyover. The recovery of dead body memo was prepared at the instance of JCLs. IO had also called crime team who examined the place of occurrence, took the photographs and prepared the report and handed over to the IO. The blood in gauze and Earth control were lifted from four places from the place of occurrence and put in small plastic container and were given serial number A to D and sealed with the seal of RS and seized vide memo Ex. PW4/B to Ex. PW4/E.
36. Thus police witnesses have stated that after arrest of accused persons i.e. Sultan and Amar Nath, pointing out memo of place of incident was prepared at their instance and they also made their disclosure statements admitting their guilt and the place of hiding dead body of Naveen. Learned defence counsels for both accused persons have argued that the dead body of Naveen was recovered at the instance of JCL and not at the instance of either of accused persons i.e. Sultan or Amar Singh Rawat.
37. Under section 27 of Indian Evidence Act when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, SC No.1193/16 Page 27 of 50 may be proved. However pointing out memo as well as disclosure statements is inadmissible in evidence except to the extent of discovery of a new fact. ASI Shailender, PW11, had deposed during his examination in chief that after recording statements of JCLs, JCLs led him and SI Sandeep and at their instance dead body was recovered from tunnel of Barapulla flyover. The recovery of dead body memo was prepared at the instance of JCLs. PW18, Ct. Jitender, PW18, has deposed that after registration of FIR, he collected copy of the same and original rukka and gave the same to IO at the spot. SI Rajesh alongwith SI Laxman Chaudhary also reached at the spot. Then he along with SI Rajesh and other police officials reached the under Barapulla flyover where dead body of a boy was found. Crime team was called at the spot and photograph taken. Discovery of dead body is a fact which stood already recovered/discovered at the instance of JCLs and thus, it cannot be stated to be a discovery of any fact under section 27 of Indian Evidence Act even if it be deemed that the accused persons in their disclosure statement stated that they had concealed the dead body of Naveen under the Barapulla flyover after killing him.
38. Learned defence counsel argued that one police witness i.e. PW21 says that body was discovered at 10 AM while remaining witnesses said that the dead body was discovered after 2 PM and possibility cannot be ruled out that the dead body was discovered at its own by the police and thereafter the story of prosecution was got SC No.1193/16 Page 28 of 50 built to implicate accused persons.
39. The pointing out memo prepared by the prosecution regarding pointing out of place where the dead body was recovered by accused Sultan is of no consequence. The place of recovery was already in the knowledge of the police as the dead body had already been recovered. As such a fact already known to the police is not admissible against the accused as it does not amount to discovery of a new fact as prescribed under Section 27 of Indian Evidence Act. In view of these observations, I concur with the submissions of learned defence counsel that discovery of dead body as well as pointing out of place where dead body of Naveen was found was made at instance of JCLs and is not hit by section 27 of Indian Evidence Act.
40. What remains to be seen is whether culpability can be attached to the accused persons on the basis of their arrest, disclosure, pointing out and recovery of knife by accused Sultan. The prosecution examined PW17, Insp Mohinder Singh, PW23, SI Sandeep Kumar and PW19, HC Maan Singh to prove the arrest, disclosure, pointing out and recovery of knife from accused Sultan and PW2, Constable Praveen Kumar and PW17, Insp Mohinder Singh, to prove the arrest, disclosure, pointing out by accused Amar Rawat.
41. PW17, Inspector Mohinder Singh, the second IO has deposed SC No.1193/16 Page 29 of 50 that on 26.12.2013, on receiving the secret information regarding accused Salman (@ Sultan) that he may be apprehended if raid is conducted at near IP Park, Sarai Kaale Khan, Ring Road and after discussing the information with the SHO and on his direction, PW17 took the staff from Sarai Kaale Khan, namely SI Sandeep and HC Man Singh and briefed them. At around 5 PM they reached at near IP Park, Sarai Kaale Khan, Ring Road and requested few public persons to join the investigation but none of them agreed and left the spot without disclosing their names and addresses on justified excuses. Without wasting further time, they took position and at around 6:30 PM, one person aged about 20 - 22 years was pointed out near gate No.1 by the secret informer and he was apprehended and disclosed his name as Sultan Ahmed @ Salman. He was arrested and his personal search was conducted vide memo Ex. PW 17/B and Ex. PW17/C. PW17 has deposed that as per disclosure statement of accused Sultan, while they were going back to PS, he showed them and pointed out the place of incident where he along with his associates committed the offence of murder of Naveen. PW17 prepared the pointing out memo, Ex. PW17/E.
42. PW19, HC Maan Singh, deposed that on the basis of secret information, on 26.12.2013 at about 5:30 PM, he along with SI Sandeep and PW17, Inspector Mahinder Singh reached near IP Park Ring Road and at about 6.00 or 6:30 PM, accused Sultan came near gate 1 of the Park and was apprehended on the pointing of SC No.1193/16 Page 30 of 50 informer. IO arrested him and his arrest memo was prepared and his personal search was conducted. His disclosure statement, Ex. PW 17/D was recorded. PW 19, HC Maan Singh, deposed that accused Sultan took them to Barapulla flyover where he pointed out the spot of incident which was under the Barapulla flyover. IO prepared pointing out memo, Ex. PW17/E. Accused Sultan also disclosed that he was wearing the same clothes which he was wearing at the time of incident and that he had washed these clothes after the incident and again wore them. Accused was brought to police station where he was provided the clothes and IO seized his pant and shirt. The pant was of blue colour and shirt was of mehroon colour. On the shirt words of English like TRENTY ON MIND FOR MAN ROOLS was weaved by white thread. The shirt and pant were sealed in a pullanda and sealed with the seal of MS and seizure memo Ex. PW17/I was prepared. On the next day, PW17 and PW19 went to AIIMS Hospital along with accused Sultan where he was again medically examined and the doctor had given two sealed exhibits of the blood and the nail clippings of accused along with sample seal which was seized by the IO vide seizure memo Ex. PW17/J.
43. PW23, SI Sandeep Kumar, deposed that at the instance of secret informer, on 26.12.2013, he along with PW19, HC Maan Singh and PW17, Inspector Mahinder Singh reached Sarai Kale Khan IP Park one person from near gate number 1 of the Park was apprehended. His name was found to be Sultan Ahmed. He was SC No.1193/16 Page 31 of 50 arrested vide arrest memo Ex. PW17/B. His personal search was conducted vide Ex. PW 17/C. His disclosure statement, Ex. PW17/D was recorded. PW23, SI Sandeep Kumar, deposed that accused Sultan pointed out the spot of incident at inside the tunnel of Barapulla flyover. Pointing out memo was prepared. Then they all went to police station Sunlight Colony and there pant and shirt which the accused Sudan was wearing was seized by IO. The same were sealed in a pullanda and seizure memo Ex. PW17/I was prepared.
44. PW17, Inspector Mohinder Singh, has deposed that on 30.12.2013, he recorded the statement of in charge of PCR van namely HC Inderjeet. He made efforts to trace and arrest accused Amar Singh but he could not be traced. On 06.01.2014, accused, Amar Singh was supposed to surrender in the court for which he received notice from the court but he didn't appear. On 09.01.2014 afternoon, he along with PW2, Constable Praveen Kumar, reached at Saket court where accused Amar Singh Rawat appeared and after taking permission from the court he interrogated him and prepared formal interrogation report, Ex.PW17/L and after obtaining permission arrested him vide Ex. PW17/M. His personal search was conducted vide memo Ex. PW17/N. One day police remand of accused Amar Singh Rawat was obtained. Accused Amar Singh Rawat was brought to PS and his disclosure statement was recorded vide Ex. PW17/O. Accused Amar Singh Rawat further disclosed that the clothes worn by him were the same which he was wearing at the SC No.1193/16 Page 32 of 50 time of incident. The same were seized by PW17 and sealed in a pullanda with the seal, seizure memo Ex. PW17/P was prepared. As per the disclosure statement of Accused Amar Singh Rawat, he was escorted to the place of incident at his instance where he pointed out the place of incident and pointing out memo, Ex. PW17/Q was prepared. On the next day forensic medical examination of Accused Amar Singh Rawat was conducted vide MLC No.371/14, Ex. PW 16/A. Exhibits prepared by the doctor of AIIMS Hospital duly sealed with the seal of AIIMS were seized by him vide Ex. PW17/R.
45. PW20, Constable Praveen Kumar, deposed that on 09.01.2014, he went to Saket court along with PW17, Mohinder Singh, went to Saket court where accused Amar Singh Rawat had surrendered and IO after taking permission from the court interrogated him and arrested him vide Ex. PW17/M. His personal search was conducted vide memo Ex. PW17/N and one day police remand of accused Amar Singh Rawat was obtained and accused Amar Singh Rawat took them to the place of incident under Bara Pulla flyover and pointing out memo Ex. PW17/Q was prepared. Accused Amar Singh Rawat gave his wearing clothes which he stated that he was wearing at the time of incident. The same were seized by the IO and sealed in a pullanda with the seal, seizure memo Ex. PW17/P was prepared.
46. Learned counsels for both accused persons argued that none of the prosecution witnesses has stated that the houses of the accused persons were visited and that they were not found at their respective SC No.1193/16 Page 33 of 50 houses as during his crossexamination, PW5, paternal uncle/chacha of deceased, stated that he had not visited any place with police, PW6, Sunder, brother of deceased, during his cross examination stated that he did not go to house of any of the accused despite knowing house of accused persons as well as of Raja(JCL) and PW7, Ravinder, another brother of deceased, has not deposed even a word about the police coming to their house on the complaint of PW6, Sunder on 24.12.2013 or on any other day or any of their family members having gone to Barapulla flyover for search of that body of Naveen. There are two witnesses to arrest of accused Amar Rawat i.e. PW17, Insp Mohinder Singh and PW20, Ct. Praveen Kumar. Accused Amar Rawat is stated to have been arrested on 09.01.2014 from Saket court after he surrendered there with the permission of the court. However, PW17, Insp Mohinder Singh, in his cross examination has admitted that he had not obtained the signature of learned magistrate on the paper of arrest prepared in Saket court at that time. PW20, the other witness of arrest of accused Amar Rawat during his crossexamination stated that he did not remember if from the court they went to police station or the spot of incident. During his crossexamination, PW17, Insp Mohinder Singh stated that accused Amar Singh Rawat was taken for pointing out the place of incident but no site plan was prepared of the same. No public person was joined in the investigation at that time as it was dark. The clothes which he was wearing at the time of his arrest were not having any visible blood stained marks. All this throws serious SC No.1193/16 Page 34 of 50 doubts on the manner of arrest of accused Amar Rawat and thus prosecution failed to establish beyond reasonable doubt that accused Amar Rawat was arrested in the manner alleged by the witnesses. However, as regards the arrest of accused Sultan, all the witnesses of his arrest have corroborated the testimony of the other witnesses of his arrest and their testimonies have remained unimpeached and unshaken by their crossexamination. Thus prosecution has been able to prove beyond reasonable doubt that accused Sultan was arrested in the manner explained by the witnesses of arrest i.e. Insp Mohinder Singh, PW23, SI Sandeep Kumar and PW19, HC Maan Singh.
47. It has been alleged that the narration of the prosecution in respect of the place where the dead body of Naveen was recovered as well as in the alleged fact of pointing out of the place of incident and they having gone there with IO and other witnesses of their arrest as there is contradiction in testimony of police witnesses of arrest as well as in respect of accessibility of tunnel under Barapulla flyover as well as the contradictions as regards whether the same was functional or was still under construction. It was also argued that nonjoining of public persons at the time of arrest, disclosure statement of accused persons as well as recovery of knife make those inadmissible in evidence.
48. It was argued that the prosecution failed to prove beyond doubt SC No.1193/16 Page 35 of 50 the fact that the body of Naveen was found under Barapulla flyover. PW8, Asst Engineer Barapulla project stated that segments under the Barapula flyover are such that they are like box of approximately 2 metre X 2 metre hollow. There are cut out some segments so that person can enter inside the box for the inspection of the bridge. It is accessible with ladder through these cutouts left for the inspection and with little difficulty at pier locations. One can walk by entering with these accessible points from one end to other end. He specifically stated that the place where body was found cannot be accessed easily by common man whereas PW17 during his cross examination stated that the height of the tunnel was over 6 feet and anyone could walk straight in the tunnel. He also deposed that there was no construction activity going on at the flyover during those times. There is no security at the place where body was found and in fact there is no security deployed by their department at the Barapulla flyover.
49. PW17 had deposed that Barapulla flyover was fully functional on 26.12.2013 and that he had gone there for the first time on the said date. PW18, Ct. Jitender, during his crossexamination stated that on 24.12.2013, when he reached with the police team at Barapulla flyover, there was no one else around the area. He did not remember if Barapulla flyover was under construction at that time or not. PW19, HC Maan Singh, who had joined investigation, at the time of arrest of accused Sultan and who has deposed that he had SC No.1193/16 Page 36 of 50 gone to place of incident i.e. Barapulla flyover, with him in view of his pointing out and disclosure statement, during his crossexamination stated that the flyover was already complete. The place pointed out by the accused was under the functional flyover which is touching the ground and that no construction activity was going on there. PW22, SI Chet Ram, crime team during his crossexamination stated that on 24.12.2013, the alleged date of recovery of dead body, there were no workers doing construction work at the spot however there are several workers doing work outside the tunnel at the construction site. The tunnel was lying at a construction site which was guarded and it was not accessible to general public. PW23, SI Sandeep Kumar, during his crossexamination stated that he did not remember if the construction work of Barapulla was still on the way or was completed. In view of the contradictions in the testimony of the witnesses aforementioned, the prosecution has failed to prove beyond reasonable doubt that the dead body was recovered from the tunnel under the Barapulla flyover or that either of the accused persons had taken any of the police witnesses namely PW17, Insp Mohinder Singh, PW23, SI Sandeep Kumar, PW19, HC Maan Singh or PW20, Ct. Praveen Kumar to Barapulla flyover or that any of the last seen witnesses or any of the witness stated to have been taken by the JCLs to Barapulla flyover were taken to Barapulla flyover. During his crossexamination, PW20 stated that there was no public person found at the time when pointing out memo was prepared at the instance of accused Amar Singh Rawat. He also did SC No.1193/16 Page 37 of 50 not remember the time of preparing pointing out memo. He also stated that he could not say if it was morning time, noontime or evening time. He admitted that nobody from any vehicle was called to join in the investigation though there was traffic moving on the road. He further stated that there were 2 other police officials with them but he could not tell their names. Thus serious doubts are cast about the accused persons having made any disclosure statement on the basis of which they were escorted by these police witnesses to the Barapulla flyover or that they pointed out the same to the witnesses or that pointing out memo was prepared at their instance. PW9, Mahesh Kumar, cousin of deceased Naveen stated in his cross examination that when he saw Naveen with accused persons on 22.12.2013, he did not suspect anything because they were all friends and they used to play with each other since childhood. Thus no witness stated that there was any enmity or difference or dispute between the accused persons and deceased. Thus, the prosecution could not prove its case beyond reasonable doubt against either of the accused persons on the basis of the evidence of the witnesses discussed on the last seen basis.
50. It needs to be seen if the culpability can be affixed on either of the accused persons on the basis of the scientific or medical evidence in view of exhibits collected in the present case which were sent to the FSL or any medical opinion rendered by a doctor.
SC No.1193/16 Page 38 of 5051. PW17 in his cross examination stated that there were abrasions on the body of Amar Singh Rawat and that the injury upon the body of accused Sultan were not visible as he was wearing clothes and all the injuries were on the concealed portion of his person. He did not remember the exact portion of the body on which the injuries upon him were found during the MLC. MLC dated 27.12.2013 gives a detailed account of injuries on the body of accused Sultan. At the end of the report, it has been recorded that blood in gauze, nail scrapings and clippings were preserved and handed over to police along with sample of seal. PW17, during his examination in chief has also deposed about the same as well as has stated that on the date of arrest of accused Amar Rawat, forensic medical examination of accused Amar Rawat was conducted vide MLC No.371/14, Ex. PW 16/A. Exhibits prepared by doctor of AIIMS hospital were duly sealed with the seal of AIIMS and seized vide memo Ex. PW17/R.
52. PW17, Inspector Mohinder Singh, also obtained forensic opinion from AIIMS hospital regarding injury on the body of both accused persons i.e. Ex. PW17/S and Ex. PW17/T. As per the expert opinion, the injuries on the body of accused persons could be possible in the course of scuffle and probable time of injury was around 4 - 7 days for accused Sultan and more than 7 days for accused Amar Nath.
53. Learned Additional PP for State has argued that the accused SC No.1193/16 Page 39 of 50 persons have not explained as to how these injuries were caused to them. However the said injuries in themselves are not sufficient to implicate either of the accused persons for any of the charges framed against them as the original onus of proving the case beyond reasonable doubt against the accused persons lies on prosecution but prosecution has not produced any witness who saw any kind of scuffle to have occurred between deceased Naveen and accused Amar Nath or deceased Naveen and accused Sultan. Thus the attempt of the prosecution to allege that since the accused persons were having some injuries is futile as there is no evidence on record that any scuffle between the accused and deceased took place at any point of time nor was any corresponding scientific recovery from the person of deceased pertaining to the accused recovered during the postmortem examination.
54. As observed earlier, prosecution has failed to establish the guilt of accused persons on the basis of theory of last seen. Further, PW 6, Sunder, during his crossexamination stated that Barapulla is around 20 minutes walking distance from his house and from the dairy and the incident allegedly took place on 22.12.2013 while the incident was reported to police on 24.12.2013, anything could have happened in these two days between the Park where Naveen was allegedly last seen with the accused persons and Barapulla flyover where the dead body was allegedly recovered. As observed earlier, prosecution has failed to establish beyond reasonable doubt that that SC No.1193/16 Page 40 of 50 body was recovered under the Barapulla flyover. In the matter of Honya @ Honnappa @ Mohan vs State of Karnataka Criminal Appeal no. 3651/2011 Karnataka HC, it was held that if the time gap between where the deceased was last seen and where he was found dead is sufficiently long, then it would not support last seen theory.
55. Learned counsel for accused Sultan argued that clothes of accused persons were seized but no blood was found on them. Even the DNA did not match as per FSL result as regards both accused and thus scientific evidence also does not support the case of prosecution.
56. It is seen that all the exhibits collected by PW4 and PW 17 were sent to FSL. The report of FSL is per se admissible under section 293 Cr.P.C. However, in the conclusion of report of FSL, it has been reported that DNA profile generated from the source of exhibits i.e. blood in gauze of accused Sultan, blood in gauze of accused Amar Singh Rawat are not similar with the DNA profile generated from the source of bloodstained cement concrete, gauze cloth piece, nail clippings of right hand of deceased, Tshirt of deceased and underwear of deceased. Thus, the report of the examination of clothes of accused Sultan and Amar Singh Rawat, which were seized during the investigation and sent for biological and DNA examination also do not support the case of the prosecution in any manner whatsoever.
SC No.1193/16 Page 41 of 5057. In light of all this, prosecution has failed to establish beyond reasonable doubt the culpability of accused Amar Rawat as well as accused Sultan in the murder of deceased Naveen on the basis of last seen evidence as well as on the basis of medical and scientific evidence as even report of FSL does not support the story of prosecution. Accordingly, the prosecution has failed to establish beyond reasonable doubt that accused Amar Singh Rawat @ Lalla and/or Sultan Ahmed @Salman along with their coaccused Mohammad @ Raja, Nizam @ Kullu (JCLs) kidnapped Naveen with the intention to secretly and wrongly confine him and hence they are acquitted of allegations of offence under sections 365 IPC.
58. No recovery was affected from accused Amar Rawat. The prosecution case is based on the alleged recovery of alleged weapon of offence, i.e. knife/churi at the instance of the accused Sultan in view of his disclosure statement made to the police witnesses. However, the statement of an accused to a police officer is not admissible in evidence as per the mandate of Section 24 to 26 of the Evidence Act and therefore the said disclosure statement cannot be read in evidence against the accused Sultan. Section 27 of the Evidence Act provides an exception to this rule. Section 27 renders information admissible on the ground that discovery of a fact pursuant to a statement made by an accused to a police officer, is a guarantee of truth of the statement made by him.
SC No.1193/16 Page 42 of 5059. In Pandurang Kalu Patil v. State of Maharashtra, (SC): 2002 A.I.R. SC 733, it has been held:
"The essence of Section 27 is that it was enacted as a proviso to the two preceding sections (see Sec. 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to any one while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or nonconfessional. Nonetheless the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact. A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause. Recovery, or even production of object by itself, need not necessarily result in discovery of a fact.
60. The prosecution examined PW17, Insp Mohinder Singh, PW23 SI Sandeep Kumar and PW19 HC Maan Singh to prove the recovery of knife.
61. In respect of disclosure statement of accused Sultan, PW17 has deposed that Accused Sultan pointed out the spot where he cleaned the weapon of offence i.e. knife(Churi) with sand there in the banks of SC No.1193/16 Page 43 of 50 ganda naala. He got recovered the said churi from the bushes near IDTR wall near walkway near ganda naala. The knife/churi was smugged with sand therefore fingerprint could not be possibly lifted. PW17 prepared the sketch of recovered churi with its measurements vide memo Ex. PW17/F and sealed the churi in cloth pulanda with the seal of MS. He prepared the pointing out and seizure memo of recovered churi, Ex. PW17/G. He also prepared the site plan of both the spots i.e. Ex. PW17/H.
62. PW19, HC Maan Singh, deposed that accused Sultan disclosed that after causing death of Naveen, the knife used by him and his friends was washed from the water of nala and the knife was thrown near the wall of IDTR. Accused Sultan led them to the said wall which was on the kachcha rasta near the IDTR Park and from the bushes he got recovered the knife which was dagger type which was of iron and the handle was of aluminium and sketch of the knife was prepared by the IO. Knife was sealed in the pulanda with seal of MS. It was seized vide memo Ex. PW17/G. IO prepared site plan of the place of recovery, Ex. PW17/H.
63. PW23, SI Sandeep Kumar, deposed that accused Sultan disclosed that the knife used in the incident can be recovered by him and he took them to near the wall of IDTR, Sarai Kale Khan and from the bushes he got recovered one knife. Sketch of the knife, Ex. PW 17/F was prepared. Knife was kept in the pulanda with seal of MS. It SC No.1193/16 Page 44 of 50 was seized vide seizure memo Ex. PW17/G. Site plan, Ex. PW17/H, of the place of recovery was prepared.
64. PW17 in his examination in chief admitted that in the rough site plan, Ex. PW17/H, regarding the recovery of knife at the instance of accused Sultan, he had not shown the place from where the dead body was recovered. He stated that the point where the knife was allegedly washed by accused Sultan after the incident was at a distance of about 7 - 8 m from the entry point of tunnel. He also stated that there was no distinctive identification mark to identify the said place where the knife was washed. Thus, if there was no such distinctive identification mark, the statement of PW17 becomes doubtful as allegedly accused Sultan had gone with PW17, PW 19 and PW 23, four days after the alleged date of incident, and it cannot be believed that the place of washing the knife could be recovered or located by the accused with accuracy and that too after passing of 4 days from alleged date of incident. PW17 also admitted that he could not locate any evidence to indicate that the knife was washed at that particular spot. He admitted that there was no distinctive mark of identification at the place of recovery of knife. Thus locating the place of knife or recovery of knife at the instance of accused Sultan becomes unbelievable.
65. PW17 stated that there was little dark at the place of recovery of knife and accused Sultan had himself pointed out the place and taken SC No.1193/16 Page 45 of 50 out the knife from there. However, PW19 during his cross examination stated that there was no light on the way to the IDTR but near the wall of IDTR there was light of IDTR. He stated that accused had informed that he had thrown the knife in the bushes and that it was PW19 who then searched for the same and found the knife inside the bushes. He also stated that he used torch to search the knife. PW22 stated during his crossexamination that the knife was got recovered by accused Sultan from the bushes near the wall of IDTR where their car was parked nearby. Thus, there is contradiction in the testimony of PW17, PW19 and PW22 in respect of who recovered the knife in question.
66. There is also contradiction in the testimony of PW17, PW19 and PW22 in respect of preparation of documents of proceedings of alleged recovery of knife. PW17 during his crossexamination stated that after the recovery they all came to the main ring road near Barapulla termination point and there under his instructions, pointing out memo, recovery sketch, recovery memo, knife sketch etc. were prepared. PW17 stated that even the knife was sealed after coming on the ring road. However, PW19 stated that the documents were prepared near light emanating from IDTR. He said that there was a guard room inside IDTR near its gate where there was a bench lying and upon the same, the documents were prepared by the IO. PW19 stated that the knife was sealed in a pulanda by the IO himself at the spot. In his cross examination PW22 had stated that no SC No.1193/16 Page 46 of 50 memo/document was prepared near the Barapulla tunnel and that all documents are prepared when they had moved their car from IDTR wall and had come on the main ring road in front of IDTR.
67. The contradiction appearing in the statement of the police officials make their statements doubtful. No independent person has been examined by the prosecution to prove the alleged recovery of knife. PW19 stated that there was a guard present at IDTR when they were conducting the proceedings. He stated that he could not say if the IO requested the guard to join the investigation. The court cannot lose sight of the fact that though accused had already been apprehended, IO did not make any serious endeavour to join the guard in the investigation of the case. At least in the facts and circumstances of the present case, IO could have very well served the guard with notice in writing requiring him to join the police proceedings or to face action under section 187 IPC in as much as in the present case there was no possibility of accused escaping his apprehension/arrest. Disclosure statement is an important piece of evidence when leads to recovery of an incriminating fact or article. Disclosure and Recoveries made in the absence of independent witness is not only doubtful but legally inadmissible (Kavinder and ors. Vs. State (NCT of Delhi) ILR (2004) II Delhi 610). Absence of independent witness during disclosure, discoveries and even arrest creates a doubt and such doubt ought to benefit the accused. (State of Haryana vs. Ram Singh (2002) 2 SCC 426). Failure on the part of SC No.1193/16 Page 47 of 50 the prosecution to make sincere efforts for joining independent public witness in the proceedings when he was available creates reasonable doubt in the story of prosecution.
68. It is further noticed that PW17 in his cross examination admitted that he did not send the knife allegedly recovered from accused Sultan to forensic Department AIIMS hospital for subsequent opinion. He volunteered that he did not think so because it was to be first sent for biological test for DNA etc. He also stated that he was not aware about the biological test/DNA report what the knife in question. He also admitted that he had taken the fingerprints of the accused persons for the purpose of record only and not for the purpose of investigation in the case.
69. The conduct of the IO in the present case shows laxity on the part of IO. It is settled preposition of law that in case of circumstantial evidence, all the evidence must be proved beyond all reasonable doubts and all the circumstances must form a complete chain which is consistent with the guilt of the accused. In the present case there is no independent witness to recording of disclosure statements of either of the accused persons, pointing out of place of incident by them or to the recovery of weapon allegedly made at the instance of the accused Sultan. As such disclosure and recovery cannot be believed and as such have to be discarded while considering the question of guilt of the accused persons. Even otherwise the SC No.1193/16 Page 48 of 50 testimony of the police officials involved in the process of arrest, disclosure, pointing out and recovery of the weapon from accused Sultan are at variance with each other having serious discrepancies.
70. The law of last seen is well settled. The last seen evidence has to be qua time and qua the place. If there is long gap of time between the accused last seen in the company of the deceased and recovery of dead body then last seen circumstance cannot be relied upon. Similarly, if the place where accused and deceased were last seen together is far from the place where dead body is recovered then also the last seen circumstance cannot be used for recording guilt of the accused. Last seen has to be qua the place and qua the time to exclude any and all probabilities of intervention of thirdparty. There are numerous possibilities of thirdparty intervention in the present case as nobody knows what happened after they left the park so the circumstances are not relevant for fixing liability of murder on the accused persons.
71. In the facts of the case and evidence adduced by prosecution on record, the prosecution has failed to establish the guilt of accused Sultan and Amar Nath beyond reasonable doubts and thus accused Sultan and Sultan are entitled to the benefit of doubt. The prosecution has failed to establish beyond reasonable doubt that accused Amar Singh Rawat @ Lalla and/or Sultan Ahmed @ Salman along with their coaccused Mohammad @ Raja, Nizam @ Kullu (JCLs) caused SC No.1193/16 Page 49 of 50 death of Naveen and hence they are acquitted of allegations of offence under sections 302 IPC and accordingly they are acquitted of the charges for offence punishable under section 302 IPC. The prosecution has also failed to establish beyond reasonable doubt that accused Amar Singh Rawat @ Lalla and/or Sultan Ahmed @Salman along with their coaccused Mohammad @ Raja, Nizam @ Kullu (JCLs) covered the body of deceased Naveen the stones or that accused Sultan Ahmed @ Salman watched the knife in nala and threw the same in the bushes and hence they are acquitted of allegations of offence under sections 201 IPC.
72. Both accused persons are directed to furnish personal bond and surety bond in the sum of Rs.25,000/ each in terms of section 437A Cr.P.C. Bail bonds furnished and accepted.
73. File be consigned to Record Room.
Announced in the open (DR.NEERA BHARIHOKE)
court today i.e. 31.07.18 Addl. Sessions Judge06
SouthEast, Saket Courts, New Delhi
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2018.08.01
15:41:12
+0530
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