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Delhi District Court

State vs . (1) Rajesh on 3 July, 2012

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­
               II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 1211/2010
unique Case ID No.: 02404R0089762010

State                           Vs.             (1)     Rajesh
                                                        S/o Ram Nath
                                                        R/o Village Bejupur,
                                                        Distt. Sultanpur, Uttar Pradesh
                                                        (Acquitted)

                                                (2)     Sanjay @ Sanju
                                                        S/o Munshi Mama
                                                        R/o House of Mangat Tyagi,
                                                        Burari, Delhi
                                                        (Acquitted)

                                                (3)     Rahul Shrivastav
                                                        S/o Sohan Lal Shrivastav
                                                        R/o Gali No.5, Vijay Colony,
                                                        Burari, Delhi
                                                        (Juvenile)
FIR No. :                      262/09
Police Station:                Swaroop Nagar
Under Sections:                302/392/397/411/34 Indian Penal Code


Date of committal to Session Court:                           23.4.2010

Date on which arguments concluded:                            23.5.2012

Date on which judgment announced:                             3.7.2012



St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar                    Page No. 1 of 91
 JUDGMENT:

(1) As per allegations, on the intervening night of 26/27.12.2009 at unknown time at Gali No.1, Kaushik Enclave, Burari Road Gali, Swaroop Nagar in furtherance of their common intention both the accused Rajesh Kumar and Sanjay @ Sanju along with their associate Rajul (juvenile) committed the murder of Santosh Tiwari a driver of the Truck No. HR­38M­2634 by strangulating him. It is also alleged that in furtherance of their common intention both the accused committed robbery of cement bags loaded in the said truck but the excel of the truck broke after some distance and hence, the accused Rahul (juvenile) took out the purse of the deceased Santosh Tiwari containing Rs.200/­ and the accused Rajesh Kumar took the blanket of the deceased. BRIEF FACTS/ CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 27.12.2009 DD No. 10A was lodged at Police Station Swaroop Nagar regarding a dead body lying in a truck, pursuant to which SI Daya Nand along with ct. Virender Tiwari reached Gali No.1, A Block, Kaushik Enclave Burari Road, Delhi where they found one Truck No. HR­38M­2634 which truck was loaded with JP Cement bags and in the cabin dead body of a boy aged about 28/30 years was lying. Both the hands of the body were found tied with a rope of while colour and a towel was found around the neck; an empty bottle of country made liquor having a label of Metro Desi Sharab and empty quarter bottle having the label of 'Original Choice' were also found;

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 2 of 91 one glass of chill mark; one red piece of cloth having the spot of white powder was also found lying in the cabin; a pouch of Shikhar Gutka and a match box on the body of the deceased and a small bottle of white fluid in a broken condition was also lying. In the meanwhile one Pankaj Sharma, Manager of Delhi­Bihar Transport Company came from Sanjay Gandhi transport Nagar came to the spot who identified the dead body as of his driver Santosh Tiwari. Thereafter rukka was prepared on the said DD and the FIR was got registered. All the aforesaid articles lying near the dead body were seized and the truck along with the cement bags was also taken into possession and when the Driver Dharmender tried to drive the said truck it could not move on which the Manager of the Transport Company called Ashok Mechanic for changing the broken excel of the truck. Thereafter the excel of the truck was changed and the broken excel was taken into possession. The cousin of the deceased namely Bijender Tiwari also came and identified the dead body of Santosh Tiwari. Bijender Tiwari had raised his suspicion on Rajesh Kumar and Rahul and one other person whose name Bijender Tiwari was not aware since he (Bijender Tiwari) had last seen the said three persons with the deceased while taking liquor with the deceased.

(3) On 28.12.2009 on the basis of a secret information, all the three accused namely Rajesh Kumar, Sanjay @ Sanju and Rahul (juvenile) were apprehended from Shalimar Palace whom Bijender Tiwari had identified as the same person who were taking liquor with Santosh St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 3 of 91 Tiwari on the night of 27.12.2009. Thereafter all the accused were arrested and pursuant to the disclosure of accused Sanjay, he got recovered the blanket belonging to the deceased Santosh Tiwari from the jhuggi of one Tinku. After completion of investigations, charge sheet was filed against both the accused Rajesh Kumar and Sanjay @ Sanju whereas the accused Rahul was sent for trial before the Juvenile Justice Board. CHARGE:

(4) Charges under Sections 302/392/397/34 Indian Penal Code were settled against the accused Rajesh Kumar and Sanjay @ Sanjay to which they pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as Twenty Three witnesses as under:

Public witnesses:

(6) PW5 Gaurav has deposed that he is Driver by profession and used to drive his own vehicle goods carrier i.e. Champion. The witness has deposed that on 27.12.2009 when he woke up in the morning, he heard a commotion from outside his house on which he came out and found one truck bearing No. HR 38 M 2634 parked in the middle of the road outside the entrance of their gali i.e. gali No. 1, Kaushik Enclave Burari due to which there was obstruction in the gali and a large number of persons gathered there. According to the witness, he went to the spot St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 4 of 91 and found that body of one boy was lying inside the truck with both hands and legs tied and towel wrapped around his neck and an empty liquor bottle lying near the body and the people were saying the boy was dead.

The witness has further deposed that on this, he immediately made a call at 100 number from his mobile 9313743901 pursuant to which the police came at the spot and his statement was recorded by the investigating officer after a few days.

(7) In his cross­examination by Ld. Defence Counsel, the witness has deposed that the connection of the mobile phone 9313743901 is in his name. According to the witness, the deceased was not known to him. He has admitted that he did not check whether the boy was dead or alive and has voluntarily explained that he only called the police because the public persons standing at the spot were saying that the boy was dead. He is not aware with regard to the ownership of the above truck bearing no. HR 38 M 2634.

(8) PW6 Tinku has deposed that he originally hails from village Chakshaid, Police Station Padepur, Distt. Vaishali Bihar, and at the time of the incident i.e. 26/27.12.2009, he was putting a Reheri of juice along with one Sunil Kumar S/o Lala Ram at GT Karnal Road near Hans Cinema. The witness has further deposed that Sunil Kumar was also residing with him on the same jhuggi and the accused Rajesh was his friend. He has testified that on 26/27.12.2009 Rajesh and two other boys namely Rahul and Sanjay came to his jhuggi to sleep and they had St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 5 of 91 brought their kambal with them and stayed at his jhuggi during that night. He has also deposed that while leaving the jhuggi in the morning, Rajesh and other two boys left their kambal in his jhuggi. According to the witness, on 28.12.2009, police came to his jhuggi and seized the said kambal but at that time he was not in his jhuggi and he later came to know about this fact and also came to know that the said three boys had committed murder of one truck driver. The witness has further deposed that his statement was recorded on 23.3.2010 by the police. He has correctly identified the accused Rajesh and Sanjay who had stayed with him at his jhuggi overnight.

(9) In his cross­examination by the Ld. Defence Counsel, the witness has deposed that Jhuggi No. B­100 was rented out by Sunil and he used to stay with him in the said jhuggi for about last two to three years. According to him, Sunil Kumar does not belong to his village and originally hails from Uttar Pradesh. The witness has deposed that Rajesh was not residing with him and Sunil in the said Jhuggi. Witness has further deposed that prior to 26/27.12.2009 he (Sanjay) had never come to stay overnight in his jhuggi and he was not known to Rahul and Sanjay prior to the incident. According to the witness, he had never seen Rahul and Sanjay in the area prior to the incident and he permitted Rajesh and said two boys to stay in his jhuggi only on humanitarian grounds. Witness has also deposed that he never told Sunil that in his absence Rajesh and his two friends came and stayed in the jhuggi and states that St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 6 of 91 for the first time he came to know that Rajesh, Rahul and Sanjay were involved in murder of a truck driver was from the younger brother of Sunil who also used to stay in the same jhuggi. According to him, on the intervening night of 26­27/12.2009 neither Sunil nor his brother was in the Jhuggi as they had gone to their native village. The witness has again stated that the younger brother of Sunil was in the Jhuggi but his room is situated separately on the 2nd floor. He has denied the suggestion that accused Rahul, Sanjay and Rajesh did not visit his jhuggi on 26­27/12.2009. According to him, he did not tell the police on 28.12.2009 or later that the kambal which they had seized does not belong to him or that it belong to Rajesh, Rahul and Sanjay who had left the same in the jhuggi and has voluntarily explained that he had told the same to the police in his statement on 23.3.2010. Witness has further denied the suggestion that the accused had never brought any kambal and the same had been falsely planted. He has admitted that seizure memo of kambal does not bear his signatures and has voluntarily stated that he was not present while the police had seized the kambal. Witness has also deposed that the police had never made any inquiry from him about the kambal and has voluntarily explained that he had left for his native village at Bihar.

(10) PW7 Pankaj Verma is the Manager in Delhi Bihar Transport Company (in which the deceased Santosh Tiwari was employed). According to him the truck NO. HR­38M­2634 belongs to St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 7 of 91 their company on which Santosh Tiwari was working as driver and his brother Bijender Tiwari was working as helper. Witness has deposed that Santosh Tiwari was working in their company for the last ten years and on 26.12.2009 the aforesaid truck had come from Panipat after loading the JP cement from Panipat to the Shri Ram Dharamkata, Burari, Delhi and on that day the aforesaid truck was to be unloaded at the aforesaid Dharamkata and the goods were to be loaded in a small vehicles like tempo. He has deposed that he had come to check the aforesaid truck but he did not find the same on which he searched his truck in the nearby area and while searching the same, when he reached at Gali No.1, Kaushik Enclave, Burari, he found that his truck stationed in the street. According to the witness, he also found the police gathered there and a large number of public present there and he had identified his truck. The witness has further deposed that on checking he found the dead body of Santosh Tiwari in the cabin of the truck and noticed that both the hands of Santosh Tiwari were found tied with white colored rope. Witness has further deposed that the Biri, match box and Shikar gutka were found on the chest of Santosh Tiwari and one empty bottle of country made liquor and another empty quarter bottle was also found lying in the cabin. He has testified that one small broken fluid bottle along with red cloth were also lying there and at that time the brother of deceased Santosh Tiwari namely Bijender Tiwari had also come who identified the dead body of his brother. According to the witness, the police lifted the aforesaid St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 8 of 91 articles and sealed the same and taken into possession and when he checked the vehicle he found the excel already broken inside the hub. He has testified that the Investigating Officer took the said excel after which it was measured and the same was found to be about three feet long and thereafter the Investigating Officer wrapped the same with the help of cloth and sealed the same with the seal of RS and taken into possession vide seizure memo Ex.PW7/A. According to him, his statement was recorded by the police on 27.12.2009.

(11) The witness has correctly identified the case property i.e. excel of the truck as the same which was seized by the Investigating Officer in his presence which is Ex.P1; transparent plastic container containing two match box of Hawara and Rose Mega Brand, one pouch of Shikar Gutka and one packet of Biri No. 555 brand as the same which were seized by the Investigating Officer in his presence, which are Ex.P2; one liquor bottle of Metro Masaledar Desi Sharab and one quarter bottle of Original Choice Deluxe Whiskey as the same which were seized by the Investigating Officer in his presence which are Ex.P3 and Ex.P4 and one transparent small container broken fluid bottle as the same which was seized by the Investigating Officer in his presence which is Ex.P5. He has also identified the photographs reflecting the number of the truck No. HR­38M­2634 which are Ex.7/B and the truck is Ex.P6.

(12) In his cross­examination by Ld. Defence Counsel, the witness has deposed that there was no case against Santosh Tiwari as per St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 9 of 91 his knowledge and he (witness) was working in the aforesaid company for the last twelve years. He is not aware if the deceased Santosh Tiwari was having any enmity with any person regarding money transaction or otherwise. Witness has further deposed that he met Santosh Tiwari about one week before from the date when he saw him dead in the truck. He has admitted that whenever their truck goes anywhere, the driver along with the helper remains available on the truck. He has also admitted that the helper Bijender Tiwari had also gone with deceased Santosh Tiwari on the aforesaid truck. According to him, they used to maintain the record of the truck and its driver/ helper and as per their record Bijender Tiwari had gone with the deceased. Witness has further deposed that Bijender Tiwari was working as helper in their company about six to eight months prior to this incident and Bijender Tiwari had been visiting in their company after this incident also who left the services from their company of his own. He has testified that Santosh Tiwari was having mobile phone connection but he is unable to tell the number of Santosh Tiwari. According to him, they used to remain in touch with the drivers whenever they went out and also had a talk with Santosh Tiwari on telephone one day before this incident and he asked him to unload the truck at the aforesaid Dharamkata. He is not aware whether any other person was present with Santosh when he made the phone call to him one day before the incident nor is he aware whether the deceased was alcoholic or not. According to the witness, he saw Bijender Tiwari after half an hour of his reaching at St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 10 of 91 the spot where the truck was parked. He has stated that he did not inquire from the Bijender Tiwari where he was at the time of the incident. Witness has also deposed that the police in his presence did not inquire about the presence of Bijender Tiwari on the truck at the time of incident and has explained that when he reached the spot where the truck was standing, many public persons gathered there along with police officials. According to him, the body of the deceased was in cabin of the truck when he reached there and he saw the body in the cabin of the truck itself. He is unable to tell what type of rope it was with which hands of the deceased were tied and states that he remained at the spot for about one to one and a half hours. He does not remember whether he signed any document at the spot or not and states that the Truck was standing inside the gali. Witness has further deposed that there were houses on both sides in the gali where the truck was standing and police did not make any inquiry from the surrounding houses in his presence. He has denied the suggestion that deceased was alcoholic or that he was anti­social aliment. He has also denied the suggestion that he never visited the spot where the truck was standing or that he was tutored by the police to depose in the court.

(13) PW8 Amarjeet Singh has deposed that he is having business of transport in the name and style of Delhi Bihar Transport Co. and Prince Road Lines which is being run from BG­582, Sanjay Gandhi Transport Nagar, Delhi and is the owner of the truck bearing No. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 11 of 91 HR­38M­2634. According to him, one Santosh Tiwari resident of Reva Madhya Pradesh was the driver of the aforesaid truck and was working with him for about last ten years. Witness has further deposed that on 26.12.2009 the aforesaid vehicle i.e. truck bearing No. HR­38M­2634 was loaded with cement bags at Panipat and was parked at Burari under the instructions of JP Cement having their office at Noida, as the cement bags used to unloaded and transported in other vehicle from the said place at Burari. He has testified that the relatives of Santosh Tiwar namely Rajesh and Rahul were also working with them as helpers but they had been removed from the services because their activities were found to be objectionable. According to the witness, another brother of Santosh Tiwari whose name was probably Vinod Tiwari was also employed on the same truck with Santosh Tiwari as a helper/ conductor and his statement was recorded by the police later. He has correctly identified both the accused Rajesh and Sanjay in the Court.

(14) On the leading questions put to the witness by Ld. Addl. PP with the permission of the Court, he has admitted that name of brother of Santosh was Bijender Tiwari and has stated that he does not remember the name of brother of Santosh Tiwari as they are having about three hundred employees and has explained that the details of his (Santosh) employment was present in their record.

(15) In his cross­examination by the Ld. Defence Counsel, the witness has deposed that he had earlier employed Rajesh and Rahul on the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 12 of 91 asking of deceased Santosh as he had stated that they were related to him and known to him and has voluntarily explained that as a matter of practice the helpers were kept on the asking of driver as it is convenient to the driver. According to him, the accused Sanjay was also under his employment previously and had worked with them but he does not recollect having told the Investigating Officer that Sanjay had also worked with them previously. He has denied the suggestion that he was deposing falsely at the instance of Investigating Officer or that he was not aware about the facts of this case.

(16) PW9 Ashok Kumar has deposed that he is working as a Mistri at Delhi Bihar Transport Company situated at BG­582, Sanjay Gandhi Transport Nagar, Delhi and on 27.12.2009 on the the asking of the Manger of the company Sh. Pankaj he went at Gali No.1, Kaushik Enclave Burari where the truck bearing No. HR 38 M 2634 was stationed. According to the witness, he inspected the truck and found that excel of the same was broken on which he put a new excel in the said truck and the old excel which was broken was handed over to the police officer in the police station where it was converted into a pulanda with the help of white cloth, after which the seizure memo of the excel was prepared which is Ex.PW7/A. (17) With the permission of the court, Ld. Addl. PP for the State put leading questions to the witness wherein he has admitted that the pulanda was stitched in his presence but he does not recollect if it was St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 13 of 91 sealed with the seal of RS. He has correctly identified the case property i.e. the broken excel which is Ex.P1.

(18) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he is working for this company for the last twenty to twenty two years as a Mistri and he is not a salaried employee and has explained that he is paid on the basis of the work done by him. According to him, he does the work for other companies and there is no record of his employment anywhere. He has voluntarily explained that he is self­employed and provides his expertise to various companies. The witness has further deposed that he was orally told by Manager Sh. Pankaj to attend the complaint of the vehicle. He has admitted that he was not told about the problem with the vehicle and only asked to go to the spot and to rectify the defect. According to him, he reached at the spot after lunch i.e. after 2.00 PM and when he reached the spot he also found police near the truck. Witness has further deposed that he did not go inside the cabin and he did not notice what was inside the cabin. According to the witness, he was not stopped by the police from examining the vehicle or from rectify the defect. The witness has denied the suggestion that he did not go to the spot or that he has deposed falsely at the instance of the Investigating Officer.

(19) PW10 Dinesh Kumar has deposed that he is working as Munshi at Prince Road Lines, branch office Panipat Refinery, Panipat, Haryana. According to him, on 26.12.2009 he was present in the office St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 14 of 91 and got 400 bags of JP cement loaded in the truck No. HR­38M­2634 and Santosh was the driver and Bijender was helper on the said truck at that time and got it departure for Delhi. Witness has further deposed that he prepared a bilty to this effect which is Ex.PW10/A and he handed over the said bilty to the Investigating Officer which were taken into possession. According to the witness, the bilty was taken into possession by the Investigating Officer vide seizure memo Ex.PW10/B and his statement was recorded.

(20) In his cross­examination by Ld. Defence Counsel the witness has deposed that he had not brought any proof showing that he is working in the aforesaid transport company on 26.12.2009. According to him, he had not given any Identity Card or document to the Investigating Officer regarding aforesaid proof, as same was not asked by the Investigating Officer. He has denied the suggestion that he was not working at the aforesaid transport company on 26.12.2009 or that the bilty Ex.PW10/A was manipulated later on to create the evidence against both the accused persons. He has also denied the suggestion that there is no firm M/s. Jai Parkash Associates Ltd. Delhi and he had falsely mentioned the name of the said name as assignee in the bilty Ex.PW10/A. According to the witness, the fair of the transportation is not mentioned in the said bilty.

(21) PW11 Bijender Tiwari is the brother of the deceased and a witness of last seen who has deposed that on 26.12.2009 he was working St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 15 of 91 at Delhi Bihar Transport Company, situated at Sanjay Gandhi Nagar as helper and second driver and his cousin Santosh Tiwari was working as driver on Truck No. HR38­M­2634. According to him, his brother Santosh was working in the aforesaid company for last ten years who left Panipat, Haryana with the said truck on 26.12.2009 along with the cement and had come to Shri Ram Dharam Kanta, Burari. The witness has testified he was present on the same truck as helper and they reached the said Dharam Kanta at 7 PM. He has also deposed that at about 7:20 PM two boys namely Rahul and Rajesh who were known to him at that time having already worked at Delhi Bihar Transport Company along with another boy who was not known to him, came there. He has further deposed that his brother Santosh was fond of liquor and his brother Santosh (deceased) had given Rs.100/­ to Rahul and third person who was not known to him for procuring the liquor and thereafter his brother Santosh and Rajesh stayed at the truck whereas Rahul and the third person who was not known to him left for taking liquor. According to the witness, at that time he was residing as tenant in the house of Bhim Singh at Badli and since his son was ill, he left said Dharam Kanta at about 7:25 PM. He is not aware of the address of Rahul and Rajesh and was explained that they used to met them at Sanjay Gandhi Transport and near Shri Ram Dharam Kanta, Burari. According to him on the next morning he left for Panipat on other truck and on 27.12.2009 he came to know about the death of his cousin Santosh at Panipat therefore he came back to St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 16 of 91 Delhi on the same day at about 2 PM and identified the dead body of his brother Santosh lying in the cabin of the truck stationed in gali No.1, Kaushik Enclave, Burari. The witness has testified that he knew Rajesh and Rahul and has stated that they were habitual of drinking liquor and of bad character. According to the witness, Investigating Officer had interrogated him on which he raised suspicion against Rahul and Rajesh in his statement. The witness has correctly identified accused Rajesh and the accused Sanjay @ Sanju.

(22) The witness has further deposed that the accused Rajesh got recovered blanket from jhuggi belonging to deceased Santosh which was sealed by the Investigating Officer with a white cloth and taken into possession vide seizure memo Ex.PW11/A. According to him, the accused Rahul got recovered purse of his brother Santosh from an open place at Burari which purse was containing visiting cards and receipt of toll tax MCD, which he had identified after which the same were wrapped in white cloth and sealed and taken into possession by the Investigating Officer vide seizure memo Ex.PW11/B. The witness has further proved that both the accused persons namely Rajesh Kumar and Rahul were arrested in this case vide memos Ex.PW11/C and Ex.PW11/D respectively and they were personally searched vide memos Ex.PW11/E and Ex.PW11/F. He has further testified that the third accused namely Sanjay @ Sanju was also arrested in this case vide memo Ex.PW11/G St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 17 of 91 and personally searched vide memo Ex.PW11/H and has stated that all the three accused persons were interrogated when they made their disclosure statements vide Ex.PW11/I, Ex.PW11/J and Ex.PW11/K. According to the witness, the aforesaid accused persons led the police party to the spot and pointed out the place of incident and Investigating Officer prepared the memos to this effect vide Ex.PW11/L, Ex.PW11/M and Ex.PW11/N respectively. He has proved having identified the dead body of his cousin Santosh Tiwari at mortuary BJRM Hospital where his statement regarding identification of dead body was recorded which is Ex.PW11/O and after getting the postmortem conducted the dead body was handed over to him vide receipt Ex.PW11/P. (23) He has correctly identified the case property i.e. one blanket of blue having design of sky blue color as the same which was got recovered by accused Rajesh which is Ex.P7; one purse containing receipt of toll tax MCD amounting of Rs.140/­ and six visiting cards as the same which were got recovered by accused Rahul, which purse is Ex.P8 and receipt of toll tax MCD and visiting cards which are Ex.P9 collectively. (24) In his cross examination by the Ld. Defence Counsel the witness has deposed that presently he is residing in his native village from the year 2009 and has voluntarily added that on 28.12.2009 he took the dead body of Santosh to his native village and thereafter he did not come to Delhi except to appear in this Court. According to the witness he is St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 18 of 91 12th class passed and Investigating Officer reduced his statement into writing and he had signed the same after reading the same. The witness has also deposed that his statement was recorded on 28.12.2009 by the Investigating Officer and after 28.12.2009 no documents were prepared in his presence. According to him, he had worked along with Santosh Tiwari for about five to six months and was drawing the salary of Rs. 1500/­ only at that time. He has also deposed that he was not issued any I­ Card from the company and whenever the goods were loaded in the truck a builty was got issued to the driver. He has further deposed that the name of the driver is mentioned in the builty and the name of the other person i.e. helper etc. are not mentioned in the builty. The witness has testified that he along with Santosh Tiwari were the only persons on the truck on the day of the incident. The witness has also deposed that he used to sign the receipt at the time of receiving the salary and their truck reached at Shri Ram Dharam Kanta at about 7PM on 26.12.2009. Witness has further deposed that the weight of the cement was not got done and since the cement was in the bag and the number of bags were to be counted. According to him at that time he along with his family members were residing in the house of Bhim Singh as tenant for the monthly rent of Rs.1000/­ and apart from their salary they were paid Rs. 500/­ per trip by the company. He has also deposed that the distance between his rented house and Shri Ram Dharam Kanta is about four Kms and after leaving the Dharam Kanta he reached at his rented house at St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 19 of 91 about 9 PM. The witness has further stated that their truck was stationed at a distance of about 200 meters from Shri Ram Dharam Kanta when he left from there and he had given the place Dharam Kanta as the said area is known in the name of Shri Ram Dharam Kanta and has voluntarily added that their truck was not stationed exactly at the said Dharam Kanta. Witness has further deposed that the accused persons namely Rajesh and Rahul were known to him for about five to six months prior to this incident and he was not having visiting terms in the house of Rahul and Rajesh. He has also deposed that there was no previous quarrel or any incident between him, Rahul and Rajesh. He has denied the suggestion that he was having enmity with the accused Rahul and Rajesh or with Sanjay @ Sanju. The witness has testified that his cousin Santosh Tiwari was not having mobile phone when he separated from him but he himself was having the mobile phone of Reliance having number 9015886468 which was in his name. He does not remember the date of his meeting with Rahul and Rajesh prior to this incident, but states that they met about one month prior to this incident at chowk near Shri Ram Dharam Kanta. The witness has also deposed that it is not fixed that a particular truck would go to a particular place daily and they may be sent any where, any day, any time by the company. Witness has further deposed that no phone call had come on his mobile from Rahul or Rajesh during their journey from Panipat to Delhi on 26.12.2009 and after their arrival at Shri Ram Dharam Kanta both the accused Rajesh and Rahul had come there after St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 20 of 91 about fifteen minutes. According to the witness, whenever a driver is on leave it is only then the driver on duty changes. He has deposed that he did not check what Rahul and Rajesh were carrying when they came to Shri Ram Dharam Kanta nor did he notice what they were carrying in their hands. The witness has testified that he only stayed at the spot for about five to six minutes after Rahul and Rajesh came there due to which reason he is not aware what transpired thereafter but states that when he left the spot there was no liquor bottle. According to him whenever Santosh Tiwari came to Delhi either he stayed with him or used to sleep in the truck itself. Witness has admitted that Santosh Tiwari he did not have any separate room which he had taken on rent in Delhi. Witness has denied the suggestion that Rahul and Rajesh did not meet Santosh on 27.12.2009 or that he had deposed falsely at the instance of the Investigating Officer. Witness has also denied the suggestion that he had committed the offence and in order to save himself, he had falsely taken the name of Rajesh and Rahul.

(25) With the permission of the Court, the witness was re­ examined by the Ld. Addl. PP for the State on the aspect of date of postmortem and the recording of his statement, during which the witness has admitted that the postmortem of his brother was conducted on 29.12.2009 and his supplementary statement was also recorded on the same day. He has admitted that he had met the Investigating Officer on 29.12.2009 when his supplementary statement was recorded. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 21 of 91 (26) During re­cross examination by Ld. Defence counsel witness has denied the suggestion that neither his statement was recorded on 29.12.2009 nor he met the Investigating officer.

(27) PW18 Sh. Jai Singh, has deposed that he was working as Incharge Toll Tax, Sindhu Border and he left the said service about six months back (from the date of his deposition). According to him in the month of March 2010 he was working as Incharge as the same Toll Tax. Witness has further deposed that their firm had taken the contract for three years for the Toll Tax from MCD and after paying the Toll Tax the vehicle are allowed to cross the barrier and they issue a slip for the amount paid. According to the witness after issuing the slip the record in the computer gets automatically deleted after five days and no record is maintained regarding receipt or registration of any vehicle permanently in the computer after five days. He has not been cross­examined by the Ld. Defence Counsel despite an opportunity in this regard and his testimony has gone uncontroverted.

Medical witness:

(28) PW21 Dr. V. K. Jha has deposed that on 29.12.2009 he was working as Medical Officer in the mortuary Babu Jagjeevan Ram Memorial hospital and on that day he conducted the postmortem on the dead body of Santosh Tiwari S/o Chhote Lal Tiwari, 28 years male, vide Postmortem Report Ex.PW21/A. According to him the cause of death in this case was asphyxia as a result of ligature pressure over St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 22 of 91 neck structures produced by strangulations. Witness has further deposed that the Injury No.1 i.e circular abrasion mark around both the wrists) has been caused to stable the deceased and Injury No.2 (Court Observation: the injury has not been specified by Dr. V.K Jha in the postmortem report and in place of injury No.2 it has been mentioned 'Towel wrapped round the neck' but on internal examination there was bruising of neck tissues and damage of Thyroid cartilage with bruising of adjacent tissue) which was sufficient to cause death in ordinary course of nature. According to him, time since death was approximately two days and the blood gauze piece, blood sample in NaF (sodium fluoride) for presence of alcohol were taken. Witness has further deposed that he signed the inquest documents i.e. request for postmortem which is Ex.PW21/B, brief facts which are Ex.PW21/C, copy of FIR which are Ex.PW21/D (running into two pages); death report which is Ex.PW21/E and statements regarding identification of the dead body were recorded which are Ex.PW11/O and Ex.PW21/F. Witness has further deposed that when the dead body was brought in the mortuary, both hands of the body were fastened with rope which rope was converted into parcel and sealed the same with the sample seal of mortuary and handed over to the police.

(29) The witness has correctly identified the case property i.e. a rope as the same rope with which the hands of the deceased were tied St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 23 of 91 which rope is Ex.P12.

(30) In his cross examination by the Ld. Defence Counsel, the witness has deposed that at the time the dead body was brought to the hospital a towel was wrapped around its neck. He has admitted that the towel was not the weapon of offence and the strangulations did not appear to have been done with the help of this towel and has voluntarily explained that ligature mark was not very prominent but brushing of the neck tissues and fracture of the thyroid cartridge which injury is compatible with ligature strangling. According to him, Investigating Officer did not produce any rope or ligature material before him for opinion to the extent if the death was caused by strangulations on account of the same. He has voluntarily explained that the only ligature material produced before him was the rope which was tied around the wrist of the deceased. He has admitted that he did not give any opinion to the investigating officer with regard to weapon/ material with which the death was caused as no such material was produced before him for any opinion. The witness has further deposed that there were no other injuries on the body suggesting any kind of assault and there was no smell of alcohol from the body of the deceased though he had sent the blood sample for serological examination to ascertain if there was any alcohol in the blood. According to the witness he had not sent the blood sample for serological examination on the asking of the Investigating St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 24 of 91 Officer and has voluntarily stated that he sent it himself for abandoned caution to rule out consumption of alcohol because he found some unusual alcohol like smell. He has testified that the possibility of smell being of white fluid cannot be ruled out and has voluntarily added that it is for this reason that he had sent blood sample for examination. He has denied the suggestion that in the present case the deceased had died on account of overdose of the erasing white fluid inhalation and has voluntarily explained that there was a fracture of thyroid cartridges suggesting that pressure/ force had been put on the neck due to strangulations by a ligature material. He has denied the suggestion that he has prepared the report in routine.

Forensic witness:

(31) PW17 Sh. Srinaraian, Senior Scientific Officer (Chemistry), FSL, Rohini has deposed that on 11.03.2010 five parcels in connection with the present case were received in the office. According to him, Parcel No.1 to parcel No.4 were duly sealed with the seal of RS.

He has deposed that Parcel No.1 was opened and it was found to contain plastic container which was containing broken glass pieces along with cap sticking white colored dried material; Parcel No.2 was found to contain plastic container containing red colored cloth piece with white stains; Parcel No.3 was found to contain one empty bottle without cap labeled as "metro masaledar desi sharab" and Parcel No.4 was found to contain one glass bottle with cap labeled as "original choice deluxe whiskey"

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 25 of 91 approximately 1 ml. According to the witness Parcel No. 5 was duly sealed with the seal of "FMT, BJRM HOSPITAL DELHI" and found to contain blood sample along with clots approximately 10 ml stated to be blood sample of the deceased. He has testified that he examined the aforesaid exhibits and prepared detailed report which is Ex.PW17/A. According to him, the remnants/ exhibits sent to the laboratory for examination have been sealed with the seal of SN FSL, Delhi. The witness has further deposed that the said report was sent to SHO Police Station Swaroop Nagar, Delhi vide covering letter Ex.PW17/B bearing the signature of Assistant Director, Dr. Madhulika Sharma.

(32) In his cross examination by Ld. Defence Counsel, the witness has deposed that Dr. Madhulika Sharma is still working in the FSL Rohini. According to him, he was assisted by one subordinate staff during the examination of the aforesaid exhibits. He has denied the suggestion that exhibits were not examined by him or that exhibits were examined by his subordinate staff only.

Police/ official witnesses:

(33) PW1 HC Satpal is a formal witness being the Duty Officer who has been examined by way of affidavit Ex.PW1/1 in terms of provisions of Section 296 Cr.P.C. According to the witness, on 29.5.2009 when he was working as Duty Officer at Police Station Swaroop Nagar at about 1:10 PM Ct. B.K. Parthi handed over a rukka to him which was sent by ASI Dayanand on the basis of which rukka he registered the FIR No. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 26 of 91 262/09 copy of which is Ex.PW1/A. He has also proved having made an endorsement on the rukka which is Ex.PW1/B. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.

(34) PW2 W/Ct. Seema is also a formal witness being the PCR official who has been examined by way of affidavit Ex.PW2/1 in terms of provisions of Section 296 Cr.P.C. She has proved that on 27.12.2009 she received a call from telephone no. 9313743901 at Channel No. 106 that "Kaushik Enclave Gali No.1, Swaroop Nagar, Delhi main gadi No. HR­38M­2634 main ek admi mara para hai jo dead lagta hai".

According to her, she filled up the PCR Form copy of which is Ex.PW2/A and sent the copy of the same to ACP Command Room and Control Room.

(35) In her cross­examination by Ld. Defence Counsel, the witness has deposed that he had signed his affidavit after going through the same before the Special Executive Magistrate. She has admitted that Ex.PW2/A is not bearing signatures of Insp. Bitton Khan. She has denied the suggestion that Ex.PW2/A is a fabricated document. (36) PW3 Ct. Sunil is also a formal witness who has been examined by way of affidavit Ex.PW3/1 in terms of provisions of Section 296 Cr.P.C. He has proved that on 11.3.2010 while posted as Constable at Police Station Swaroop Nagar, the MHCM HC Shri Pal handed over St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 27 of 91 him five pullandas containing one empty bottle, one sealed empty quarter, two plastic dibby with seal of RC and one sample seal FMT BJRM Hospital, vide RC No. 124/21/10 for depositing the same at FSL Rohini. The witness has deposed that he deposited the pullandas to the FSL and handed over the receipt to the MHCM. He has proved that he did not tamper with the pullandas and seals when it remained in his possession. (37) In his cross­examination by Ld. Defence Counsel, the witness has deposed that the affidavit was signed by him in the presence of reader in police station and he appeared before the Special Executive Magistrate who inquired from him about the depositing of pulanda with the FSL. He has denied the suggestion that the pulandas were tampered with during the time it remained in his custody.

(38) PW4 HC Shri Pal is also a formal witness being the MHCM has been examined by way of affidavit Ex.PW4/1 in terms of provisions of Section 296 Cr.P.C. He has corroborated the testimony of PW4 Ct. Sunil in toto and has proved the copy of road certificate which is Ex.PW4/A, copy of register No.19 which is Ex.PW4/B and receipt of FSL, Rohini copy of which is Ex.PW4/C. (39) In his cross­examination by Ld. Defence Counsel, the witness has deposed that Insp. Ranbir Singh deposited the case property in the Malkhana on 27.12.2009 and signatures of the depositor are not required in register No.19. He has admitted that he reproduced seizure memo in register No.19, Column No. 4 and has denied the suggestion that St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 28 of 91 he did not physically verify the pullandas deposited with him. He has also denied the suggestion that the case property was tampered with when it was in his custody or that he fabricated the entires of Register No. 19 and Road Certificate on the instructions of the Investigating Officer. (40) PW12 Ct. Virender has deposed that on 27.12.2009 he was posted at Police Station Swaroop Nagar as Constable and on that day at about 9.25AM a PCR call had been received and pursuant to DD No. 10A he accompanied ASI Dayanand to Gali No.1, A Block, Kaushik Enclave, Burari, Delhi. According to him when they reached the spot they found one truck bearing no. HR 38 M 2634 parked at Gali No.1, Kaushik Enclave and one man was found lying on the seat behind the seat of the driver who on inspection was found to be dead. Witness has further deposed that a towel was wrapped around the neck of the dead body and its hands were found tied and a bottle of fluid, a red coloured cloth, empty liquor bottle and one quarter bottle, one pair of Hawai Chappal were lying in the truck and the colour of the rope with which the hands of the deceased were tied was "Matmaila" that is white which had become dirty. According to the witness, the deceased was wearing pant, shirt, underwear and sweater whose colour he does not remember and on further inspection of body the deceased was found to be having some marks on the neck. Witness has also deposed that the red cloth which was lying inside the cabin was also having white marks which appears to be of fluid and he also saw biris and a match box lying on the chest of the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 29 of 91 deceased. The witness has testified that in the meantime crime team reached the spot and after inspecting the spot and taking photographs of the same they prepared the inspection report and handed over the same to ASI Dayanand. He has deposed that before the crime team came to the spot, one Pankaj Kumar who is the manager of Delhi Bihar Transport company also came to the spot and identified the deceased as Santosh Tiwari S/o Sh. Chhotey Lal Tiwari of Distt. Reeva, Madhya Pradesh. He has also deposed that the SHO of Police Station Swaroop Nagar also reached the spot and on his direction he took the dead body to Babu Jagjeevan Ram Memorial hospital for getting postmortem of the dead body conducted. According to PW12, the postmortem of the deceased was conducted on 29.12.2009 after which the first cousin of the deceased Santosh Tiwari (son of Chacha) namely Bijender Tiwari and the father of deceased Chhotey Lal identified the dead body before the postmortem. He has testified that after the postmortem examination was conducted the doctor handed over four sealed pulandas to him containing the clothes of the deceased i.e. pant, shirt, sweater and underwear, one containing a rassi, one containing blood gauze piece and one containing the towel with which the neck of the deceased was tied and all the pulandas were duly sealed with the seal of FMT, Babu Jagjeevan Ram Memorial Hospital. The witness has also deposed that the doctor handed over to him one sealed plastic bottle containing the blood sample of deceased for alcohol which was duly sealed with the seal of FMT Babu Jagjeevan Ram St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 30 of 91 Memorial hospital and all these four pulandas and one plastic bottle containing the blood sample for alcohol were handed over to SHO Police Station Swaroop Nagar Inspector Ranvir Singh who prepared the seizure memos which are Ex.PW12/A and Ex.PW12/B respectively. He has deposed that his statement was recorded by the Investigating Officer on the same day in the hospital.

(41) With due permission of the Ld. Addl. PP for the State leading questions were put to the witness on the aspect of the colour of the clothes worn by the deceased and the recovery of articles at the spot, wherein he has admitted that on inspection of the truck from the open window and after he went inside he had found two boxes of match box, one packet of Biri and one packet of Gutka lying on the chest of the deceased. He has also admitted that the deceased was wearing a grey coloured pant, cream coloured shirt having blue lines, a half sleeve sweater and a blue coloured underwear.

(42) Witness has correctly identified the case property i.e. one packet of Gutka, two packets of match box and one open packet of Biri of Vishwa Sunderi Biri No. 555 as the same which were lying on the chest of the deceased, which are collectively Ex.P2; a bottle of Metro Masaledaar Desi Sharab which is Ex.P3; a quarter bottle of Original Choice Delux Whiskey which is Ex.P4; a plastic bottle containing pieces of a broken bottle of white fluid which is Ex.P5; one pair of chappal which is Ex.P10; a red cloth as the same which was found around the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 31 of 91 neck of the deceased as strangulation material, which is Ex.P11 and a dirty white cotton rassi which is normally used as a Nala as the same rassi with which the hands of the deceased were tied which is Ex.P­12. (43) In his cross examination by the Ld. Defence counsel, the witness has deposed that the DD No.10A was handed over to ASI Dayanand by the Duty Officer at 9.25AM and they went to the spot on a motor bike belonging to him. He has also deposed that they reached the spot within fifteen to twenty minutes and when they reached the spot a large number of public persons were present there. The witness has further deposed that there were about ten to fifteen persons already present there but he is unable to tell their names or details. According to him amongst the public persons present, there was nobody who was related to the deceased or who knew him. He has admitted that when they reached the spot they were not aware the identity of the deceased. According to him, it was the Investigating Officer who had called the owner of the Transport Company on the basis of the telephone number and details printed on the body of the truck. He has testified that he remained at the spot for about one to one and a half hours and in his presence no documentation was done by the Investigating Officer nor he signed any document at the spot. He has denied the suggestion that since he was not present at the spot it is for this reason that none of the documents bear his signatures. The witness has admitted that the rassi Ex.P­12 is easily available being of common domestic use and is weak St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 32 of 91 that it can easily break in case if force is applied and has voluntarily explained that it is possible that the hands of the deceased were tied when he was unconscious. Witness has also deposed that the fluid bottle lying in the truck was broken at the time he observed the same and the fluid had already dried by that time and there was no smell except from the red cloth. According to Ct. Virender, he reached Babu Jagjeevan Ram Memorial hospital along with the dead body at about 12.00 Noon on 27.12.2009 and none from the family of the deceased had come to the hospital on 27.12.2009. He has testified that the relatives of the deceased came to Babu Jagjeevan Ram Memorial hospital for the first time on 28.12.2009 and has voluntarily explained that 28.12.2009 was a holiday and the body could only be identified on 29.12.2009. He has admitted that the identification memo of the dead body does not bear his signature. He has denied the suggestion that since he was not present in the hospital therefore it does not bear his signatures.

(44) PW13 SI Manohar Lal has deposed that on 07.01.2010 he was working as Draftsman in Delhi Police NW District and on that day he had visited the spot i.e. Gali No.1, Kaushik Enclave, Burari, Swaroop Nagar. According to him on the pointing out of the Investigating Officer he took the measurements and prepared the rough notes and thereafter on 08.01.2010 he prepared the scaled site plan Ex.PW13/A. Witness has further deposed that the rough notes and measurements were destroyed and the said scaled site plan was handed over to the Investigating Officer St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 33 of 91 who took the same. This witness has not been cross­examined by the Ld. Defence Counsel despite an opportunity in this regard. (45) PW14 Ct. Parminder has deposed that on 27.12.2009 he was working as Photographer in mobile crime team North West District, Maurya Enclave and on that day he along with Incharge Crime Team SI M.D. Meena and other staff reached at gali No.1, Kaushik Enclave, Burari where they found one loaded truck with JP cement bags bearing registration number HR­38M­2634. According to him in the cabin of the truck they found a dead body of a young person and he took photographs of the dead body and scene of crime from his digital camera from different angles and he handed over the photographs and CD to the Investigating Officer. Witness has proved the photographs which are Ex.PW14/A1 to Ex.PW14/A22 and Ex.PW7/B and the CD which is Ex.PW14/B. (46) In his cross examination by Ld. Defence Counsel the witness has deposed that he reached at the scene of crime at about 10:45 AM and stayed there up to 12:05 PM and the SHO was also present there. According to him his statement was recorded at the spot by some ASI whose name he does not remember. Witness has denied the suggestion that he did not visit the spot or that he did not take any photograph or that the aforesaid photographs have been developed later on only to connect the accused persons. He has also admitted that the said CD has not been placed by the Investigating Officer with the judicial file. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 34 of 91 (47) PW15 Ct. Ram Kishan has deposed that on 27.12.2009 he was posted in Mobile Crime Team NW district and on that day he along with Incharge Crime Team SI MD Meena and other staff reached at gali No.1, Kaushik Enclave, Burari where they found a truck number HR­38­ M­2634 Turbo 1613 stationed there. According to him there were bags of JP cement and they found a dead body of young person behind the driver seat in the cabin of the truck. Witness has further deposed that both the hands of the body were found tied with a rope. He has testified that the Incharge Crime Team inspected the spot and he (witness) lifted one liquor bottle and one quarter bottle of liquor on which the word "original choice" were found mentioned from the cabin. Witness has further deposed that he also lifted the chance prints from the back view mirror of the front side which was fixed on the roof above the front mirror and Ct. Parminder took the photographs of the scene of crime. According to him he had given the copy of SOC report to the finger print bureau, Malviya Nagar and original of the same was handed over to Investigating Officer and his report to this effect is Ex.PW15/A. He has testified that they remained at the spot up to 12:05 PM during the inspection. This witness has not been cross­examined by the Ld. Defence Counsel despite opportunity and his testimony has gone uncontroverted. (48) PW16 SI M.D. Meena has deposed that on 27.12.2009 he was working as Incharge in Mobile Crime Team North West District, Maurya Enclave and on that day he along with photographer Ct. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 35 of 91 Parminder, Ct. Ram Kishan, proficient finger print and other staff reached at gali No.1, Kaushik Enclave, Burari where Insp. Ranbir Singh and ASI Daya Nand along with their staff met them and they found one truck bearing No. H­38­M­2634 loaded with JP cement. According to him they found a dead body lying in the cabin of the said truck on the back of the driver seat and the hands of the body were found tied with the rope and a towel was found wrapped around the neck of the body. Witness has further deposed that on the request of Investigating Officer Insp. Ranbir Singh he inspected the scene of crime and found one empty liquor bottle lying on the bonnet of the cabin and one empty quarter bottle was found lying near footrest. Witness has also deposed that empty plastic glass were found lying near driver seat and one match box, bundle of birri were found on the chest of the body and one fluid bottle having some fluid was also found lying near the seat. According to him, the name of the deceased was known as Santosh and the photographer Ct. Parminder took the photographs of the scene of crime and Ct. Ram Kishan lifted the chance prints from the back view mirror fixed on the front mirror of the upper portion and from the bottle and quarter bottle. He has proved having prepared his detailed report in this regard which is Ex.PW16/A. (49) In his cross examination by Ld. Defence Counsel, the witness has deposed that he received the information at about 9:15 AM and reached at the spot at about 10:45 AM and the public persons were watching the scene of crime from distance. According to him the SHO St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 36 of 91 had given the name of deceased as Santosh to him and they stayed at the spot up to 12:05 PM. Witness has denied the suggestion that the crime team report Ex.PW16/A is not in his hand or that he never visited the spot of occurrence.

(50) PW19 Ct. Mahabir Singh has deposed that on 27.12.2009 he was posted at Police Station Swaroop Nagar and on that day HC Satpal Tyagi the then Duty Officer handed over the copy of FIR to him. According to the witness, he took the same to the senior officers i.e. Joint Commissioner of Police (NR), Deputy Commissioner of Police (NW), Assistant Commissioner of Police Jahangirpuri and a copy of FIR was also given at the residence of Ld. MM Ms Vandana at her residence B­378, Shakurpur. The witness has further deposed that he reported the duty officer regarding handing over the aforesaid FIR to the aforesaid officers at about 5:30 PM. He has also deposed that on the next day i.e. on 28.12.2009 he joined the investigations with the Investigating Officer and on that day he along with HC Ashok Kumar and Ct. B.K. Parthey reached at BJRM hospital Jahangirpuri for getting the postmortem conducted. He has testified that brother of deceased Santosh Tiwari namely Bijender Tiwari and other relatives met them and on that day there was holiday for Mohram therefore the postmortem could not be conducted. Witness has further deposed that the relatives of the deceased were relieved and Bijender Tiwari was joined in the investigations, after which he along with Insp. Ranbir Singh, HC Ashok, Ct. B.K. Parthey and St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 37 of 91 Bijender Tiwari reached at Sanjay Gandhi Transport Nagar where Investigating Officer made inquiries from public persons and thereafter they all reached at gali No.1, Kaushik Enclave, Burari where Investigating Officer made inquiries also. The witness has deposed that at about 5:30 PM they reached at theka sharab, Laxmi Vihar, Burari road where one secret informer met them who informed that three boys namely Rahul, Rajesh and Sanjay were sitting on the pavement in front of Shalimar Palace and could be apprehended if raided. He has also deposed that Investigating Officer took the secret informer along with him after which they reached at Shalimar Palace where three boys were found sitting and Bijender Tiwari had identified them as the same person who was taking liquor with his deceased brother Santosh Tiwari. The witness has deposed that on seeing the police party the said boys tried to ran away but they were overpowered and interrogated on which they admitted their involvement in the present case. According to him, the accused were arrested in this case and their disclosure statements were recorded. He has also deposed that the accused persons brought the raiding party to the place of incident separately where they consumed liquor and had committed murder of Santosh Tiwari and also at the place where they left the truck. He has proved that the Investigating Officer prepared the memo of pointing out after which the accused Rahul led the police party at gali No. 3, Laxmi Vihar colony and pointed out towards the open land where he threw the black colored purse. According to him, the accused St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 38 of 91 Rahul picked up the purse and produced the same before the Investigating Officer which purse was also identified by Bijender Tiwari as belonging to his brother Santosh Tiwari. According to the witness, Investigating Officer checked the purse which was containing some visiting cards, slip of Toll Tax MCD dated 26.12.2009 mentioning the amount Rs.140/­. He has also deposed that Investigating Officer sealed the same with the seal of RS and took the same into possession which seal after use was handed over to HC Ashok Kumar after which all the accused persons led the police party near jhuggies Azadpur. He has testified that the accused Rajesh took out one blanket of blue and sky blue color and produced the same before the Investigating Officer and Bijender Tiwari had identified the said blanket as belonging to his deceased brother Santosh Tiwari. According to him, the said blanket was also sealed with the same seal and taken into possession and the seal after use was again handed over to HC Ashok Kumar. He has also deposed that the aforesaid memo were signed by HC Ashok and Bijender Tiwari and his statement was recorded by the Investigating Officer.

(51) He has correctly identified the accused Rajesh and Sanjay in the Court and also identified the case property i.e. one blanket of blue color having design of sky blue color as the same which was got recovered by accused Rajesh which is Ex.P7; one purse containing receipt of Toll Tax MCD amounting of Rs.140/­ and six visiting cards as the same which was got recovered by accused Rahul, which purse is Ex.P8 St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 39 of 91 and receipt of Toll Tax MCD and visiting cards which are Ex.P9 collectively.

(52) In his cross examination by Ld. Defence Counsel the witness has deposed that Bijender Tiwari met them at BJRM hospital and they reached at Sanjay Gandhi Transport Nagar at about 11:30 AM but he is unable to tell the names and addresses of the persons from whom inquiries were made by the Investigating Officer. Witness has further deposed that they remained at Delhi Bihar Transport company for two to three hours and reached Kaushik Enclave, Burari at about 3:30­4:00 PM. According to him, neither the names and addresses of the persons nor their statements were recorded at Kaushik Enclave, Burari regarding the inquiries made from them. He has deposed that liquor shop where the secret informer met them is a government shop and Shalimar Palace which is a Banquet Hall located in Burari at a distance of about 1000 meters from the liquor shop and they reached at Shalimar Palace at about 6­6:30 PM. He is unable to tell whether the Shalimar Palace was opened on the day of arrest or not and has stated that patri where the accused persons were sitting is about 100­150 yards from the Shalimar Palace. According to him, there were two or three godowns and one Dharamkanta in the vicinity of Shalimar Palace. He has admitted that Dharam Kanta remains opened for 24 hours and has stated that no efforts were made to call any person from above said Dharam Kanta or godown to join the proceedings. According to him, Bijender Tiwari is a man about 30 years, St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 40 of 91 of lean built and of about 5.8 inches in height. He has also deposed that they remained at the spot for about one and a half hour. Witness has further deposed that he did not see which paper was prepared first and what was prepared thereafter and intimation regarding the arrest of the accused persons were given to the mother of Rahul through personal messenger. According to him first of all the accused persons pointed out the place where the truck was found standing and distance where the accused persons were arrested and the place where the truck was found standing is about 1000 yards. Witness has further deposed that they stayed there for about one and a half to two hours and some writing work was done there but he is unable to tell what documents were prepared there. According to him the place which accused pointed out as the one where they took liquor and the place where they left the truck finally are different places. Witness has further deposed that there were two­three houses adjacent to the open land from where the purse was got recovered by the accused Rahul and the open land is not covered with any boundary wall. Witness has further deposed that Investigating Officer made inquiries from the public persons but no clue could be ascertain from those public persons as to who threw the purse. He does not remember whether the Toll Tax slip was a printed slip or written by hand and states that the Investigating Officer made request from public persons to join the investigations but none agreed however Investigating Officer did not give any notice to those public persons. According to the witness, they St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 41 of 91 remained at the spot up to 9 PM and no member of police party or complainant left the spot before 9 PM. Witness has further deposed that the jhuggi from where the accused Rajesh got recovered the blanket was found closed but not locked and the said jhuggi is surrounded by other jhuggies. He does not remember the name of Jhuggi owner from where the blanket was got recovered and states that the Investigating Officer made request from resident of other jhuggies to join the investigations of proceedings at the time of recovery of blanket also but none agreed. According to the witness, Investigating Officer did not record the names and addresses of such public persons. He has deposed that he remained outside the jhuggi along with the accused Rahul whereas Rajesh took the Investigating Officer and Bijender Tiwari inside the jhuggi. He has also deposed that they left the said jhuggi at about 9:45 PM and his statement was recorded in the police station at about 10PM. He has admitted that his signature were not taken on any of the document or memo and has denied the suggestion that his signature has not been taken on any of the document because he was not present with the Investigating Officer. He has also denied the suggestion that he did not participate in the investigations of this case or that his statement regarding to investigations was recorded by the Investigating Officer of his own. The witness has further denied the suggestion that he had been cited as a witness in this case only to connect the accused with the alleged offence or that no disclosure statement was ever made by the accused in the present case. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 42 of 91 He has further denied that no incriminating recovery was affected at the instance of accused persons.

(53) PW20 Ct. B.K. Parthe has deposed that on 27.12.2009 he was posted at Police Station Swaroop Nagar and on that day he was on patrolling duty in the area of Kaushik Enclave during which he reached at gali No.1, Kaushik Enclave, Burari at about 10:30 AM where he found one truck bearing No. HR­38M­2634 Turbo 1613 and found a large number of public persons. Witness has further deposed that the police party was also present there and they found a dead body lying on the back of the driver seat in the cabin of the truck. According to him, ASI Dayanand got the scene of crime inspected from crime team and the name of the deceased was revealed as Santosh Tiwari who was driver of the truck. Witness has further deposed that at about 12:40 PM ASI Dayanand handed over a rukka to him and took the same to the police station and got the case registered. He has also deposed that he came back to the spot with copy of FIR and original rukka and handed over the same to Insp. Ranbir Singh Dahiya and his statement was recorded. The witness has proved having joined the investigations of this case with the Investigating Officer on 28.12.2009 when he along with HC Ashok Kumar and Ct. Mahavir reached BJRM hospital Jahangirpuri for getting the postmortem conducted. According to him the brother of deceased Santosh Tiwari namely Bijender Tiwari and other relatives met them and on that day there was holiday for Mohram due to which reason the postmortem could St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 43 of 91 not be conducted. Witness has further deposed that the relatives of the deceased were relieved and Bijender Tiwari was joined in the investigations and thereafter he along with Insp. Ranbir Singh, HC Ashok, Ct. Mahavir and Bijender Tiwari reached at Sanjay Gandhi Transport Nagar. The witness has corroborated the testimony of witness HC Mahavir Singh (PW19) in toto and has proved the arrest of the accused persons and the recovery got affected by them. He has correctly identified the accused Rajesh and Sanjay in the Court and also the case property i.e. one blanket of blue color having design of sky blue color as the same which was got recovered by accused Rajesh which is Ex.P7; one purse containing receipt of Toll Tax MCD amounting of Rs.140/­ and six visiting cards as the same which was got recovered by accused Rahul, which purse is Ex.P8 and receipt of Toll Tax MCD and visiting cards which are Ex.P9 collectively.

(54) The said witness has been cross­examined by the Ld. Defence Counsel at length but nothing much has come out of the same. (55) PW22 SI Daya Nand is the initial Investigating Officer who has deposed that on 27.12.2009 he was posted at Police Station Swaroop Nagar and on that day on the receipt of DD No.10A which is Ex.PW22/A, he along with Ct. Virender Tiwari reached at gali No.1, A Block, Kaushik Enclave, Burari Road, Delhi where they found one truck No. HR­38M­2634. According to him, the truck was found loaded with JP cement bags and when he entered the cabin of the said truck he found St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 44 of 91 one dead body of a male person aged about 28/30 years lying on the back seat in the cabin. He has testified that the body was of dark complexion having round face and the length of about five feet seven inch and both the hands were found tied with a rope of white color and the neck was found wrapped with a towel. According to the witness the body was having one grey colored jeans pant, cream color shirt having blue lining and a half sleeve sweater of brown color and sky blue colored underwear and there was a empty bottle of country made liquor having a label of 'Metro desi sharab' and empty quarter bottle having the label of Original Choice. Witness has also deposed that there were pouch of water having amrit dhara brand and one empty pouch of water in the cabin and one plastic glass of chill mark was also lying there. According to him one red piece of cloth having the spot of white powder was also found lying in the cabin and there was a pouch of Shikhar gutka and a match box on the chest of the body and there was also small bottle of white fluid in a broken condition. He has further deposed that he called the crime team at the spot who inspected the scene of crime and there was one pair of plastic chappal of black color and one pair of hawai chappal make relaxo of black color. According to the witness, one Pankaj Sharma came from Sanjay Gandhi Transport Nagar who identified the dead body as that of his driver Santosh Tiwari. He has proved having prepared the rukka Ex.PW22/B on the said DD which rukka he sent to the police station through Ct. B.K. Parthey for getting the case registered. According to St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 45 of 91 him the then SHO Insp. R.S. Dahiya reached the spot after his arrival and further investigations of this case was handed over to him. Witness has further deposed that Ct. B.K. Parthey had brought the copy of FIR Ex.PW1/A and original rukka which were handed over to Insp. R.S. Dahiya. The witness has testified that Insp. R.S. Dahiya prepared the site plan which is Ex.PW22/C at his instance and took the liquor bottle and quarter bottle from the cabin of the truck and converted the same into parcel and sealed the same with the seal of RS which was taken into possession vide seizure memo Ex.PW22/D. According to him, Insp. R.S. Dahiya took two pairs of plastic chappals and converted the same into parcel and sealed the same with the seal of RS, which parcel was taken into possession vide seizure memo Ex.PW22/E. He has proved that the matchbox, packet of biri and gutka were also converted into parcel and sealed with same with the seal of RS, which was taken into possession vide seizure memo Ex.PW22/F. According to him, the broken fluid bottle was also converted into parcel and sealed with the seal of RS after which it was also taken into possession vide memo Ex.PW22/G. The witness has further proved that the red piece of cloth was converted into parcel and sealed with the seal of RS, after which it was taken into possession vide seizure memo Ex.PW22/H. According to him three pouches of water (two full of water and one empty) were lifted and kept in a plastic container and sealed with the seal of RS after which the said St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 46 of 91 container was taken into possession vide seizure memo Ex.PW22/I. He has testified that the said truck along with the cement bags was taken into possession vide seizure memo Ex.PW22/J and the seal after use was given to him by Insp. R.S. Dahiya. The witness has further deposed that the dead body of Santosh Tiwari was sent to mortuary BJRM hospital through Ct. Virender Tiwari and the brother of the deceased Bijender Tiwari also accompanied the body.

(56) The witness has correctly identified the case property i.e. transparent plastic container containing two match box of Hawra and rose mega brand, one pouch of shikhar gutka and one packet of biri No. 555 brand which are collectively Ex.P2; one liquor bottle of metro masaledar desi sharab and one quarter bottle of original choice deluxe whiskey which are Ex.P3 and Ex.P4; transparent small container containing broken fluid bottle which is Ex.P5; truck bearing No. HR­38M­2634 through the photographs Ex.7/B and the truck Ex.P6; two pairs of chappal which are Ex.P10 collectively; the cloth found wrapped around the neck of the deceased which is Ex.P11; one dirty cotton rassi which the hands of the deceased were found tied which is Ex.P12 and three pouches of water and one broken plastic glass of chill brand which are Ex.P13 collectively.

(57) In his cross examination by Ld. Defence Counsel, the witness has deposed that when he reached the spot, there were 30­35 St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 47 of 91 public persons gathered and he inquired from local residents regarding the presence of truck but he did not record any statement in this regard. According to him, the SHO reached the spot at about 10.20AM along with his driver and on his asking from the people gathered at the spot he found that nobody had tampered with the things. He has testified that he along with SHO remained there till late evening and left the spot together. According to the witness, Bijender Tiwari came to the spot at about 2.00PM when all the recovered articles except the excel of the truck were seized in his presence but the statement of Bijender Tiwari was not recorded in his presence at the spot. Witness has further deposed that Pankaj Sharma came to the spot at about 11.00 AM after the crime team reached the spot. He has stated that Ct. B. K. Parthileft the spot with the rukka at about 12.40PM and after the repair of excel the truck was brought to the police station but he is not aware from where the mechanic was called to repair the truck and has voluntarily added that SHO called the mechanic. He is not aware as to who drove the truck to the police station nor does he remember as to who was carrying the key of the truck and states that the key of the truck was not seized in his presence. Witness has further deposed that he left the spot firstly after which the truck was brought from the spot to the police station. He has denied the suggestion that he never visited the spot of occurrence or that no proceedings were carried out in his presence.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 48 of 91 (58) PW23 Inspector Ranbir Singh is the Investigating Officer who has deposed that on 27.12.2009 he was posted at Police Station Swaroop Nagar as SHO and on that day he was present at his residence. According to him, he received information that one male person was found lying dead in the cabin of truck in gali No.1, A Block, Kaushik Enclave, Swaroop Nagar pursuant to which at about 10:20 AM he reached the spot where ASI Daya Nand along with his staff and one Pankaj Sharma, Manager of Delhi Bihar Transport Company were already present. Witness has further deposed that he found a dead body lying in the cabin of the truck bearing No. HR­38M­2634 which truck was found loaded with JP cement bags. He has deposed that the Crime Team also reached at the spot and inspected the scene of crime after which Crime Team submitted its report which is Ex.PW6/A and finger print proficient also submitted his report which is Ex.PW15/A. According to the witness, he received copy of FIR and original rukka from Ct. B.K. Parthey after which he inspected the spot and prepared the site plan which is Ex.PW22/C and recorded the statement of crime team officials. Witness has further deposed that he entered the cabin of the said truck and found one dead body of a male person aged about 28/30 years lying on the back seat in the cabin which body was of dark complexion having round face and the length of about 5 feet 7 inch. The witness has also deposed that both the hands were found tied with a rope of white color and the neck was found wrapped with a towel and the body was having one grey St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 49 of 91 colored jeans pant, cream color shirt having blue lining and a half sleeves sweater of brown color and sky blue colored underwear. According to the Investigating Officer, there was an empty bottle of country made liquor having a label of Metro desi sharab and an empty quarter bottle having the label of original choice were lying; pouch of water having Amrit Dhara brand and one empty pouch of water was lying in the cabin; one plastic glass of chill mark, one red piece of cloth having the spot of white powder was also found lying in the cabin; a pouch of Shikhar gutka and a match box on the chest of the body and there was also small bottle of white fluid in a broken condition were also lying; one pair of plastic chappal of black color and one pair of hawai chappal make relaxo of black color were lying. Witness has further deposed that one Pankaj Sharma came from Sanjay Gandhi Transport Nagar who identified the dead body as of his driver Santosh Tiwari. The witness has proved having lifted the liquor bottle and quarter bottle from the cabin of the truck and converted the same into parcel and sealed the same with the seal of RS after which the same was taken into possession vide seizure memo Ex.PW22/D; having lifted two pairs of said plastic chappal and converted the same into parcel and sealed the same with the seal of RS after which the said parcel was taken into possession vide seizure memo Ex.PW22/E; having lifted the match box, packet of biri and gutka which were converted into parcel and sealed with the seal of RS after which the said pullanda was taken into possession vide seizure memo Ex.PW22/F; St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 50 of 91 having lifted the broken fluid bottle which was also converted into parcel and sealed with the seal of RS after which it was taken into possession vide seizure memo Ex.PW22/G; having lifted the red piece of cloth which was converted into parcel and sealed with the seal of RS after which it was also taken into possession vide seizure memo Ex.PW22/H; having lifted three pouches of water (two full of water and one empty) and kept in a plastic container and sealed with the seal of RS after which the said container was taken into possession vide seizure memo Ex.PW22/I and having seized the truck along with the cement bags vide seizure memo Ex.PW22/J. The witness has further deposed that his driver Dharmender tried to drive the said truck but it could not be moved on which the Manager of the Transport Company namely Pankaj called Ashok Mistri for changing the broken Excel from the truck. According to him, the mistri (mechanic) took out the broken excel and replaced the same with the new one after which he sealed the said broken excel with the seal of RS and took the same into possession vide seizure memo Ex.PW7/A. He has deposed that the seal after use was handed over to ASI Daya Nand and the cousin of deceased Santosh Tiwari, namely Bijender Tiwari had come to the spot from Panipat who identified the dead body as of his brother Santosh Tiwari after which the dead body was sent to mortuary BJRM hospital through Ct. Virender Tiwari in the company of the brother of the deceased namely Bijender Tiwari. He has proved having recorded the statements of witnesses and having deposited St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 51 of 91 the case property in the Malkhana.

(59) The witness Inspector Ranbir Singh has further deposed that on 28.12.2009 he along with HC Ashok, Ct. B.K. Parthi, Ct. Mahavir and his driver HC Ranbir Singh went to BJRM Hospital in their government Gypsy for getting the postmortem conducted where Bijender Tiwari, father of deceased Santosh Tiwari namely Sh. Chhotey Lal and other relatives met them. According to the witness there was a holiday in lieu of festival Moharram due to which reason the postmortem could not be conducted after which they all including Bijender Tiwari reached at Transport Nagar to trace accused Rahul and Rajesh and their another associate whom Bijender Tiwari did not know. Witness has further deposed that he made inquiries but the accused could not be traced and thereafter they went to the place of incident where they made inquiries regarding accused persons but no clue could be ascertained. According to him, at about 5.15 PM when they reached near Theka Sharab, Swaroop Nagar - Burari Road, a secret informer met them who informed that three boys namely Rajesh, Rahul and Sanjay were sitting on footpath near Shalimar Palace. He has testified that they took the secret informer with them and reached near Shalimar Palace where the secret informer pointed out towards three persons sitting on the footpath and Bijender Tiwari also identified all the three persons as the same persons who were taking liquor with Santosh Tiwari on the night of 27.12.2009 when he left them at about 7.25PM. The witness has testified that on seeing them the said St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 52 of 91 boys tried to escape but they were overpowered by them and their names were known as Rajesh, Rahul and Sanjay who were thereafter interrogated and after being satisfied they were arrested in this case vide memos Ex.PW11/C, Ex.PW11/D and Ex.PW11/G and were personally searched vide memos Ex.PW11/E, Ex.PW11/F and Ex.PW11/H. He has proved that the said boys were thoroughly interrogated and whatever they have stated in their disclosure statement were recorded separately vide Ex.PW11/I to Ex.PW11/K. Witness has also deposed that they led the police party to the place where they had committed the murder of Santosh Tiwari and the place where the excel had broken and they left the truck pursuant to which memos of pointing out in respect of all the accused persons were prepared which are Ex.PW11/L to Ex.PW11/N. The witness has testified that thereafter all the accused persons took them to gali No.3, Laxmi Vihar, Burari from where the accused Rahul pointed out the purse lying on the baggage (Koore Ka Dher) and lifted the purse lying there and told that this was the same purse which he took out from the pocket of deceased Santosh Tiwari after killing him and after taking out Rs.200/­ from the purse. Witness has further deposed that the said purse was checked and it was found to contain one receipt of MCD Toll Tax Number 51357772 amounting to Rs.140/­ dated 26.12.2009 and some visiting cards on which Bijender Tiwari identified the purse of deceased Santosh Tiwari. The Investigating Officer has proved that the said purse was converted into parcel and sealed with the seal of RS and the said St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 53 of 91 parcel was taken into possession vide memo Ex.PW11/B. He has deposed that thereafter they all went to Jhuggi No.B­100, Mauzi Wala Bagh, Azadpur, Delhi where the accused Rajesh got recovered one blanket of skyblue and blue colour from the jhuggi of one Tinkoo S/o Suresh and Bijender Tiwari identified the said blanket as of his brother Santosh Tiwari. He has proved that the said blanket was also converted into parcel and sealed with the seal of RS after which the said parcel was taken into possession vide seizure memo Ex.PW11/A and thereafter they came back to the police station and the case property was deposited the Malkhana. He has proved having recorded the statement of witnesses and the accused persons were sent to lock up.

(60) The witness has also deposed that on 29.12.2009 they along with Bijender Tiwari went to Mortuary BJRM hospital where the dead body of deceased Santosh Tiwari was identified by one Chhotey and Bijender Tiwari vide statements Ex.PW21/F and Ex.PW11/O. He has proved having prepared the inquest documents which are Ex.PW21/B to Ex.PW21/F. According to him, the postmortem on the dead body was conducted vide postmortem report Ex.PW21/A and thereafter the dead body was handed over to the relative of deceased i.e. Sh. Chhotey Lal vide receipt Ex.PW11/P. Witness has further deposed that doctor concerned handed over the exhibits of the deceased duly sealed with the seal of the hospital along with the sample seal which he took into St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 54 of 91 possession vide Ex.PW12/A. According to the witness, the doctor concerned also handed over the blood sample of the deceased duly sealed with the seal of the hospital which he took into possession vide seizure memo Ex.PW12/B. He has testified that he obtained the finger prints of the deceased and the accused persons and thereafter got prepared the Dossiar of accused persons and got them sent to judicial custody. Witness has further deposed that he recorded the statement of owner of the truck Amarjeet Singh on 30.12.2009 and examined one Gaurav who informed the police in the morning of 27.12.2009 from his mobile phone and recorded his statement under Section 161 Cr.P.C. According to him he collected the report from the finger print bureau of Delhi Police which is Ex.PW23/A along with memorandum Ex.PW23/B. Witness has further deposed that on his request SI Manohar Lal lifted the rough measurement and prepared the notes and thereafter prepared scaled site plan which is Ex.PW13/A which he handed over to him. He has proved having collected the PCR form which are Ex.PW23/B and Ex.PW23/C. According to him, on 11.03.2010 he got the exhibits sent to FSL Rohini through Ct. Sunil and recorded the statement of MHC(M) HC Shripal and Ct. Sunil under Section 161 Cr.P.C. The witness has also deposed that he went to the jhuggi of Tinku from where the accused Rajesh got recovered the blanket, and recorded the statement of Tinku under Section 161 Cr.P.C. Witness has further deposed that he recorded statement of Sh. Jai Singh, official of Toll Tax, MCD and collected the photographs of the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 55 of 91 deceased and the spot from the photographer which photographs are Ex.PW14/A­1 to Ex.PW14/A­22. According to him, he recorded the statement of one Dinesh, the official at Prince Road Lines, Panipat, who handed over the copy of bulity which is Ex.PW10/A to him which he took into possession vide seizure memo Ex.PW10/B. He has also proved having collected the FSL results which are Ex.PW17/A and Ex.PW17/B. He has also proved having prepared the charge sheet after necessary investigations. The witness has testified that out of three accused one accused namely Rahul Srivastav was declared juvenile therefore he prepared separate charge sheet qua him.

(61) The witness has correctly identified the accused Rajesh Kumar and Sanjay @ Sanju in the Court and also identified the case property which are Ex.P1 to Ex.P13.

(62) In his his cross examination by the Ld. Defence Counsel, witness has deposed that Pankaj Sharma i.e. Manager Delhi­Bihar Transport Company is a person of about 40 to 45 years in age and there were two police persons at the spot when he reached there. According to him some people were coming and going at the spot and Crime Team reached the spot after 15­20 minutes of his reaching. He does not remember the colour of the towel wrapped around the neck of the deceased. He has stated that on one side of the spot there is a residential area and nobody from the locality told anything about the incident but one boy namely Gaurav who called the police on telephone told him that due St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 56 of 91 to the crowd which gathered around the truck there was a hindrance on the way due to which reason he (Gaurav) entered into the truck and came to know that a dead body was lying inside and thereafter he made call to the police. According to the witness, that he enquired from Gaurav if anybody had tampered with the body or the things lying in the truck, on which Gaurav replied that nobody tampered with anything. He has further deposed that first of all he prepared B Form regarding the dead body and that he prepared the pullandas of recovered articles at about 2.00PM. He has also deposed that at that time when the excel was changed all the recovered articles were seized. Witness has further deposed that Bijender Tiwari came to the spot at about 2.00PM and on 28.12.2009 they reached at Transport Nagar about 12.00/12.30PM (Noon). According to the witness, he did not record the names and addresses of the persons from whom he inquired regarding Rajesh and Rahul. Witness has testified that they were in official gypsy and accused persons were arrested from outside the banquet hall namely Shalimar Palace when they were sitting on foot path. He has deposed that on the said day Shalimar Palace Banquet hall was closed due to which reason they could not call any person from there during the period of one and a half to two hours when they remained at the spot of arrest. Witness has further deposed that Jija of Rajesh was informed personally, father of Rahul was informed through Beat Constable and regarding Sanjay firstly his employer Mangat Ram was informed regarding their arrest. He has St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 57 of 91 testified that the place of crime was about 400­450 yards from the place of arrest of accused persons. Witness has denied the suggestion that no purse was recovered at the pointing out of accused Rahul. According to him no efforts was made to lift the chance print from the purse and that at the time of recovery of purse some passer­byes were asked to join the investigation but none agreed and no notice was served to them. He has admitted that there were several jhuggies in the vicinity of Jhuggi no.100 Mochi Wala Bagh, Azadpur, Delhi. Witness has denied the suggestion that Tinku was the real culprit but he was set at large illegally. According to him, when they reached the above said jhuggi it was open but Tinku was not available there and nobody from the vicinity of the said jhuggi joined the investigation nor anybody came forward to join the same. Witness has further deposed that recovery was effected at about 9.30 or 10.00 PM. Witness has denied the suggestion that no blanket was recovered on the pointing out of the accused persons. Witness has denied the suggestion that no disclosure statement was recorded in the present case or that he did not investigate the case fairly. He has also denied that he had falsely implicated the accused persons in the present case or that he fabricated the documents and manipulated the things to implicate the accused persons falsely.

STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:

(63) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Code of Criminal Procedure St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 58 of 91 wherein all the incriminating was put to them which they have denied.

The accused Rajesh has stated that he is innocent and has been falsely implicated in this case by the police to solve the present case. According to him, he has nothing to do with the alleged incident and he was lifted by the police in the night when he was sleeping in the shop of his friend at Azadpur. The accused has further stated that his signatures were forcibly obtained by the police on blank papers. According to the accused, neither the deceased Santosh Tiwari nor his brother Bijender Tiwari were known to him and Bijender Tiwari has deposed falsely under the pressure of the police officials to solve this case.

(64) Similarly, the accused Sanjay has stated that he is innocent and has been falsely implicated in this case by the police to solve the present case. According to him, he has nothing to do with the alleged incident and he was lifted by the police from his work place at Burari when he was sitting there. The accused has further stated that his tumb impressions were forcibly obtained by the police on blank papers. According to the accused, neither the deceased Santosh Tiwari nor his brother Bijender Tiwari were known to him and Bijender Tiwari has deposed falsely under the pressure of the police officials to solve this case.

(65) Both the accused have preferred not the lead any evidence in their defence.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 59 of 91 FINDINGS:

(66) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the various public witnesses and the witnesses of medical evidence, individually in a tabulated form as under and later on comprehensively.

  Sr.       Name of the                                  Details of deposition
 No.            witness
PUBLIC WITNESSES:
1.       Gaurav (PW5)             He is an independent witness who is residing in the area  
                                  where the truck was found parked.   He has deposed as  
                                  under:

1. That on 27.12.2009 when he woke up in the morning, he heard a commotion from outside his house on which he came out and found one truck bearing No. HR 38 M 2634 parked in the middle of the road outside the entrance of their gali i.e. gali No. 1, Kaushik Enclave Burari due to which there was obstruction in the gali and a large number of persons gathered there.

2. That he went to the spot and found that body of one boy was lying inside the truck with both hands and legs tied and towel wrapped around his neck and an empty liquor bottle lying near the body and the people were saying the boy was dead.

3. That he immediately made a call at 100 number from his mobile 9313743901 pursuant to which the police came at the spot and his statement was recorded by the investigating officer after a few days.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 60 of 91

2. Tinku (PW6) This witness has deposed on the following aspects:

1. That he originally hails from village Chakshaid, Police Station Padepur, Distt. Vaishali Bihar, and at the time of the incident i.e. 26/27.12.2009, he was putting a Reheri of juice along with one Sunil Kumar S/o Lala Ram at GT Karnal Road near Hans Cinema.

2. That Sunil Kumar was also residing with him on the same jhuggi and the accused Rajesh was his friend.

3. That on 26/27.12.2009 Rajesh and two other boys namely Rahul and Sanjay came to his jhuggi to sleep and they had brought their kambal with them and stayed at his jhuggi during that night.

4. That while leaving the jhuggi in the morning, Rajesh and other two boys left their kambal in his jhuggi.

5. That on 28.12.2009, police came to his jhuggi and seized the said kambal but at that time he was not in his jhuggi and he later came to know about this fact and also came to know that the said three boys had committed murder of one truck driver.

6. That his statement was recorded on 23.3.2010 by the police.

7. That the seizure memo of kambal does not bear his signatures as he was not present while the police had seized the kambal.

8. That police had never made any inquiry from him about the kambal since he had left for his native village at Bihar.

3. Pankaj Kalra He is the Manager in Delhi Bihar Transport Company (in (PW7) which the deceased Santosh Tiwari was employed) and has deposed as under:

1. That the truck No. HR­38M­2634 belongs to their company on which Santosh Tiwari was working as driver and his brother Bijender Tiwari was working as helper.

2. That Santosh Tiwari was working in their company for the last ten years and on 26.12.2009 the aforesaid St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 61 of 91 truck had come from Panipat after loading the JP cement from Panipat to the Shri Ram Dharamkata, Burari, Delhi and on that day the aforesaid truck was to be unloaded at the aforesaid Dharamkata and the goods were to be loaded in a small vehicles like tempo.

3. That he had come to check the aforesaid truck but he did not find the same on which he searched his truck in the nearby area and while searching the same, when he reached at Gali No.1, Kaushik Enclave, Burari, he found that his truck stationed in the street.

4. That he also found the police gathered there and a large number of public present there and he had identified his truck.

5. That on checking he found the dead body of Santosh Tiwari in the cabin of the truck and noticed that both the hands of Santosh Tiwari were found tied with white colored rope.

6. That the Biri, match box and Shikar gutka were found on the chest of Santosh Tiwari and one empty bottle of country made liquor and another empty quarter bottle was also found lying in the cabin.

7. That one small broken fluid bottle along with red cloth were also lying there and at that time the brother of deceased Santosh Tiwari namely Bijender Tiwari had also come who identified the dead body of his brother.

8. That the police lifted the aforesaid articles and sealed the same and taken into possession and when he checked the vehicle he found the excel already broken inside the hub.

9. That the Investigating Officer took the said excel after which it was measured and the same was found to be about three feet long and thereafter the Investigating Officer wrapped the same with the help of cloth and sealed the same with the seal of RS and taken into possession vide seizure memo Ex.PW7/A.

10. That his statement was recorded by the police on 27.12.2009.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 62 of 91

4. Amarjeet Singh This witness is the owner of truck bearing No. (PW8) HR­38M­2634 and has a business of transport in the name and style of Delhi Bihar Transport Co. and Prince Road Lines which is being run from BG­582, Sanjay Gandhi Transport Nagar, Delhi. He has deposed as under:

1. That Santosh Tiwari resident of Reva Madhya Pradesh was the driver of the aforesaid truck and was working with him for about last ten years.

2. That on 26.12.2009 the aforesaid vehicle i.e. truck bearing No. HR­38M­2634 was loaded with cement bags at Panipat and was parked at Burari under the instructions of JP Cement having their office at Noida, as the cement bags used to unloaded and transported in other vehicle from the said place at Burari.

3. That the relatives of Santosh Tiwar namely Rajesh and Rahul were also working with them as helpers but they had been removed from the services because their activities were found to be objectionable.

4. That another brother of Santosh Tiwari namely Bijender Tiwari was also employed on the same truck with Santosh Tiwari as a helper/ conductor and his statement was recorded by the police later.

5. Ashok Kumar This witness has deposed on the following aspects:

(PW9) 1. That he is working as a Mistri at Delhi Bihar Transport Company situated at BG­582, Sanjay Gandhi Transport Nagar, Delhi and on 27.12.2009 on the the asking of the Manger of the company Sh.

Pankaj he went at Gali No.1, Kaushik Enclave Burari where the truck bearing No. HR 38 M 2634 was stationed.

2. That he inspected the truck and found that excel of the same was broken on which he put a new excel in the said truck and the old excel which was broken was handed over to the police officer in the police station where it was converted into a pulanda with the help of white cloth, which was sealed after which the seizure memo of the excel was prepared which is Ex.PW7/A. St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 63 of 91

6. Dinesh Kumar This witness has deposed on the following aspects:

(PW10) 1. That he is working as Munshi at Prince Road Lines, Branch Office Panipat Refinery, Panipat, Haryana.

2. That on 26.12.2009 he was present in the office and got 400 bags of JP cement loaded in the truck No. HR­38M­2634 and Santosh was the driver and Bijender was helper on the said truck at that time and got it departure for Delhi.

3. That he prepared a bilty to this effect which is Ex.PW10/A and he handed over the said bilty to the Investigating Officer which were taken into possession.

4. That the bilty was taken into possession by the Investigating Officer vide seizure memo Ex.PW10/B and his statement was recorded.

7. Bijender Tiwari He is the brother of the deceased and a witness of last (PW11) seen who has deposed as under:

1. That on 26.12.2009 he was working at Delhi Bihar Transport Company, situated at Sanjay Gandhi Nagar as helper and second driver and his cousin Santosh Tiwari was working as driver on Truck No. HR38­ M­2634.

2. That his brother Santosh was working in the aforesaid company for last ten years who left Panipat, Haryana with the said truck on 26.12.2009 along with the cement and had come to Shri Ram Dharam Kanta, Burari.

3. That he was present on the same truck as helper and they reached the said Dharam Kanta at 7 PM.

4. That at about 7:20 PM two boys namely Rahul and Rajesh who were known to him at that time having already worked at Delhi Bihar Transport Company along with another boy who was not known to him, came there.

5. That his brother Santosh was fond of liquor and his brother Santosh (deceased) had given Rs.100/­ to Rahul and third person who was not known to him for procuring the liquor and thereafter his brother Santosh and Rajesh stayed at the truck whereas Rahul St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 64 of 91 and the third person who was not known to him left for taking liquor.

6. That at that time he was residing as tenant in the house of Bhim Singh at Badli and since his son was ill, he left said Dharam Kanta at about 7:25 PM.

7. That Rahul and Rajesh used to met them at Sanjay Gandhi Transport and near Shri Ram Dharam Kanta, Burari.

8. That on the next morning he left for Panipat on other truck and on 27.12.2009 he came to know about the death of his cousin Santosh at Panipat therefore he came back to Delhi on the same day at about 2 PM and identified the dead body of his brother Santosh lying in the cabin of the truck stationed in gali No.1, Kaushik Enclave, Burari.

9. That Rajesh and Rahul were habitual of drinking liquor and of bad character.

10. That accused Rajesh got recovered blanket from jhuggi belonging to deceased Santosh which was sealed by the Investigating Officer with a white cloth and taken into possession vide seizure memo Ex.PW11/A.

11. That accused Rahul got recovered purse of his brother Santosh from an open place at Burari which purse was containing visiting cards and receipt of toll tax MCD, which he had identified after which the same were wrapped in white cloth and sealed and taken into possession by the Investigating Officer vide seizure memo Ex.PW11/B.

12. That both the accused persons namely Rajesh Kumar and Rahul were arrested in this case vide memos Ex.PW11/C and Ex.PW11/D respectively and they were personally searched vide memos Ex.PW11/E and Ex.PW11/F. He has further testified that the third accused namely Sanjay @ Sanju was also arrested in this case vide memo Ex.PW11/G and personally searched vide memo Ex.PW11/H and has stated that all the three accused persons were interrogated when they made their disclosure statements vide Ex.PW11/I, St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 65 of 91 Ex.PW11/J and Ex.PW11/K.

13. That the accused persons led the police party to the spot and pointed out the place of incident and Investigating Officer prepared the memos to this effect vide Ex.PW11/L, Ex.PW11/M and Ex.PW11/N respectively.

14. That he identified the dead body of his cousin Santosh Tiwari at mortuary BJRM Hospital where his statement regarding identification of dead body was recorded which is Ex.PW11/O and after getting the postmortem conducted the dead body was handed over to him vide receipt Ex.PW11/P.

8. Jai Singh (PW18) This witness was working as Incharge Toll Tax, Sindhu Border. He has deposed on the following aspects:

1. That in the month of March 2010 he was working as Incharge as the same Toll Tax.

2. That their firm had taken the contract for three years for the Toll Tax from MCD and after paying the Toll Tax the vehicle are allowed to cross the barrier and they issue a slip for the amount paid.

3. That after issuing the slip the record in the computer gets automatically deleted after five days and no record is maintained regarding receipt or registration of any vehicle permanently in the computer after five days.

MEDICAL EVIDENCE:

9. Dr. V.K. Jha He is the Autopsy Surgeon who had conducted the (PW21) postmortem examination on the dead body of deceased on 29.12.2009 vide Postmortem Report Ex.PW21/A. He has deposed as under:

1. That the cause of death in this case was asphyxia as a result of ligature pressure over neck structures produced by strangulation.

2. That the Injury No.1 i.e circular abrasion mark around both the wrists) has been caused to stable the deceased and Injury No.2 (Court Observation: the injury has not been specified by Dr. V.K Jha in the postmortem St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 66 of 91 report and in place of injury No.2 it has been mentioned 'Towel wrapped round the neck' but on internal examination there was bruising of neck tissues and damage of Thyroid cartilage with bruising of adjacent tissue) which was sufficient to cause death in ordinary course of nature.

3. That time since death was approximately two days and the blood gauze piece, blood sample in NaF (sodium fluoride) for presence of alcohol were taken.

4. That he signed the inquest documents i.e. request for postmortem which is Ex.PW21/B, brief facts which are Ex.PW21/C, copy of FIR which are Ex.PW21/D (running into two pages); death report which is Ex.PW21/E and statements regarding identification of the dead body were recorded which are Ex.PW11/O and Ex.PW21/F.

5. That when the dead body was brought in the mortuary, both hands of the body were fastened with rope which rope was converted into parcel and sealed the same with the sample seal of mortuary and handed over to the police.

6. That towel was not the weapon of offence and the strangulations did not appear to have been done with the help of this towel and has voluntarily explained that ligature mark was not very prominent but brushing of the neck tissues and fracture of the thyroid cartridge which injury is compatible with ligature strangling.

7. That the Investigating Officer did not produce any rope or ligature material before him for opinion to the extent if the death was caused by strangulations on account of the same and has voluntarily explained that the only ligature material produced before him was the rope which was tied around the wrist of the deceased.

8. That he did not give any opinion to the investigating officer with regard to weapon/ material with which the death was caused as no such material was produced before him for any opinion.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 67 of 91

9. That there were no other injuries on the body suggesting any kind of assault and there was no smell of alcohol from the body of the deceased though he had sent the blood sample for serological examination to ascertain if there was any alcohol in the blood.

10. That he had not sent the blood sample for serological examination on the asking of the Investigating Officer and has voluntarily stated that he sent it himself for abandoned caution to rule out consumption of alcohol because he found some unusual alcohol like smell.

11. That the possibility of smell being of white fluid cannot be ruled out and has voluntarily added that it is for this reason that he had sent blood sample for examination.

(67) Coming now to the microscopic evaluation of evidence against the accused.

Identity of the accused:

(68) In so far as the identity of the accused is concerned, the same is not disputed. The accused Rajesh Kumar and and Rahul Srivastava (juvenile) were employed on the same truck No. HR­38M­2634. Rather, the evidence on record suggest that the deceased Santosh Tiwari was employed with Delhi ­ Bihar Transport Company and it was the deceased Santosh Tiwari who had claimed that Rajesh and Rahul were his cousins and on his recommendations they were previously employed as helpers in the same Transport Company but on account of their behaviour, their employment were discontinued.

(69) Even otherwise, the accused Rajesh Kumar and Sanjay @ Sanju have been identified in the Court by PW6 Tinku as the persons who St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 68 of 91 had come along with Rahul (juvenile) to stay in his jhuggi on the intervening night of 26­27.12.2009 and had left in the morning. PW11 Bijender Tiwari the cousin brother of the deceased Santosh has also correctly identified both the accused Rajesh Kumar and Sanjay @ Sanju in the Court as the persons who along with Rahul (juvenile) had visited the deceased Santosh and had a drinking session. In view of the above, I hereby hold that the identity of both the accused Rajesh Kumar and Sanjay @ Sanju stands established.

Ocular Evidence/ Last Seen:

(70) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately, in the present case there is no direct evidence and the only evidence is the last seen. The case of the prosecution is that Santosh Tiwari was working as Driver in truck No. HR­38M­2634 and Bijender Tiwari (PW11) the cousin of the deceased also working as Helper in the said truck. According to Bijender Tiwari, when he left in the evening the accused Rajesh and Rahul (juvenile) and a third person (accused Rajesh) had come to have drinks with the deceased Santosh. He has identified both the accused Rajesh and Sanjay in the Court (the accused Rahul being juvenile). It is further the case of the prosecution that Tinku (PW6) who at the time of the incident was residing in a Jhuggi at B­100, Mauziwala Bagh, Azadpur, Delhi was the friend of accused Rajesh. According to Tinku (PW6) on the intervening night of St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 69 of 91 26­27.12.2009 Rajesh and two other persons namely Rahul and Sanjay had come to his jhuggi to sleep and spent one night in his Jhuggi and left in the morning when they left behind a blanket (Kambal) which was later on recovered by the police.

(71) The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased was last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).

(72) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].

(73) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that :­ "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 70 of 91 accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."

(74) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under:­ "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden.

If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 71 of 91 provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."

(75) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:­

(i) Proximity between the time of last seen and time of death of the deceased.

(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.

(iii) Nature of place of murder of the deceased.

(iv) Attending circumstances enwombing the time and place of last seen.

(v) Reasonableness of the explanation offered by the accused.

(76) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 72 of 91 the company of the accused Rajesh and Sanjay is trustworthy or not. If yes, the effect thereto.

(77) Applying the settled principles of law to the facts of the present case it is evident that Bijender Tiwari (PW11) in his testimony before this Court has specifically deposed that deceased Santosh was fond of liquor and on the date of the incident he had last seen Santosh alive at about 7:25 PM when he left Santosh along with the accused Rajesh, Rahul (juvenile) and Sanjay. The relevant portion of his testimony is as under:

".......... On 26.12.2009 I was working at Delhi Vihar Transport company, situated at Sanjay Gandhi Nagar as helper and second driver. My cousin Santosh Tiwari was working as driver on Truck NO. HR38­ M­2634. My brother Santosh was working in the aforesaid company for last 10 years. Santosh Tiwari left Panipat, Haryana with the said truck on 26.12.2009 along with the cement and had come to Shri Ram Dharam Kanta, Burari. I was also present on the same truck as helper. We reached at the said Dharam Kanta at 7 PM. At about 7:20 PM two boys namely Rahul and Rajesh who were known to me at that time as they had already worked at Delhi Vihar Transport company along with another boy who was not known to me, came there. My brother Santosh was fond of liquor. My brother Santosh had given Rs 100/­ to Rahul and third person who was not known to me for precuring the liquor. My brother Santosh and Rajesh stayed at the truck and Rahul and the third person who was not known to St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 73 of 91 me left for taking liquor. At that time I was residing as tenant in the house of Bhim Singh at Badli.

Since my son was ill at that time therefore I left said Dharam Kanta at about 7:25 PM. I was not aware of the address of Rahul and Rajesh but they used to met us at Sanjay Gandhi Transport and near Shri Ram Dharam Kanta, Burari. On the next morning I left for Panipat on other truck.

On 27.12.2009 I came to know about the death of my cousin Santosh at Panipat therefore I came back to Delhi on the same day at about 2 PM. I had identified the dead body of my brother Santosh lying in the cabin of the truck stationed in gali No. 1, Kaushik Enclave, Burari. I knew the Rajesh and Rahul that they were habitual of drinking liquor and of bad character. IO had interrogated me to which I had raised suspicion against Rahul and Rajesh in my statement. IO had recorded my statement. I can identify accused persons if shown to me.

At this stage witness has correctly identified accused Rajesh and the accused who had come with Rajesh and Rahul at the spot who was not known to him at that time. His name was known to me later on as Sanju. I can also identify the accused Rahul Srivastav (since juvenile) if shown to me.

The accused Rajesh got recovered blanket from jhuggi belonging to deceased Santosh, same was sealed by the IO with a white cloth and taken into possession vide seizure memo Ex.PW11/A bearing my signature at point A....."

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 74 of 91 (78) This witness Bijender Tiwari has been cross­examined at length wherein he has deposed that he had worked with the deceased for about five to six months only and on the date of incident he and the deceased Santosh were the only persons on the truck. According to him, their truck reached at Shri Ram Dharam Kanta at about 7:00 PM on 26.12.2009 but the weight of the cement was not got done. He has deposed that after leaving the Dharam Kanta he went back to his rented accommodation at the house of Bhim Singh which is at a distance of four kilometers from the Dharam Kanta and reached his house at about 9:00 PM. He has further deposed that the truck was stationed at a distance of about 200 meters from Shri Ram Dharam Kanta when he left from there. Further, in his cross­examination the witness has deposed that he stayed at the spot for about five to seven minutes and when he left the spot there was no liquor bottle and he does not know what transpired thereafter. (79) Coming now the testimony of PW6 Tinku, at the very outset I may observe that the statement of Tinku under Section 161 Cr.P.C. was recorded after three months of the incident i.e. 23.3.2010. The relevant portion of his testimony/ deposition which he has made in the Court as under:

"......... I am a resident of aforesaid address and I originally belong to village Chakshaid, PS Padepur, Distt. Vaishali, Bihar. At the time of incident i.e. 26/27.12.2009, I was putting a Reheri of juice alongwith one Sunil Kumar S/o Lala Ram at GT Karnal Road near Hans Cenema. Sunil Kumar was also St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 75 of 91 residing with me on the same jhuggi. Rajesh was my friend and on 26/27.12.2009, Rajesh and two other boys namely Rahul and Sanjay came to my jhuggi to sleep. They had also brought their kambal with them.

They had stayed at my jhuggi that night and while leaving the jhuggi in the morning Rajesh and other two boys left their kambal in my jhuggi. On 28.12.2009 the police came to my jhuggi and seized the said kambal, but at that time I was not in my jhuggi and I came to know about this fact later. I also came to know later that these three boys had committed murder of one truck driver. My statement was recorded on 23.3.2010 by the police.

I can identify the accused Rahul, Rajesh and Sanjay who had stayed with me at my jhuggi overnight. At this stage, the witness has correctly identified the accused Rajesh and Sanjay who are present in the court in JC....."

(80) The witness Tinku has also been cross­examined at length wherein he has stated that prior to the date of incident the accused had never came to his Jhuggi to stay overnight nor he had seen Rahul (juvenile) and Sanjay in the area. According to him, he had permitted Rajesh and two boys to stay in his jhuggi on humanitarian grounds. He has admitted that the jhuggi had been rented out to him by Sunil who also used to stay in the same Jhuggi but has stated that on the intervening night of 26­27.12.2009 Sunil was not present in the jhuggi and he also did not tell Sunil and in his absence the jhuggi had been used by the accused. Further, in his testimony Tinku (PW6) has admitted that on 28.12.2009 St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 76 of 91 when police had seized the blanket (kambal) he did no tell them the said blanket (kambal) belonged to the accused Rajesh, Rahul and Sanjay who had left the same in his jhuggi which fact he told much later i.e. on 23.3.2010. He has also admitted that the seizure memo of the blanket (kambal) does not bear his signatures and has explained that he was not present while police had seized the blanket (kambal). According to him, police had never made any inquiries from him about the blanket (kambal). (81) It is writ large from the testimony of Tinku (PW6) that in his entire testimony he does not depose about the time when the accused came to his jhuggi and stayed overnight with him. He only states that the accused had come to stay in his jhuggi. I may observe that the statements of Bijender Tiwari (PW11) and Tinku (PW6) do not reconcile each other. In presence of Bijender Tiwari (PW11) Santosh had given Rs.100/­ to Rahul and third boy for procuring liquor and he (Bijender Tiwari) left the spot at about 7:25 PM and till the time Bijender Tiwari left there was no liquor bottle and he does not know what transpired thereafter; then at what time the drinking session if any started and till what time it continued.

(82) Here, I may observe that the postmortem report Ex.PW21/A reveals that there was no smell of alcohol but according to the Autopsy Surgeon Dr. V.K. Jha some strange smell was coming and it was for this reason that he collected the blood sample and sent to the same to FSL. Sh. Srinarain, Senior Scientific Officer has proved the FSL Report St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 77 of 91 Ex.PW17/A showing that the blood sample of the deceased was found to contain ethyl alcohol 97.3 mg/ 100 ml of blood indicating that alcohol was consumed by the deceased in the intervening night and the possibility of the death having been caused much later cannot be ruled out. Further, in so far as the witness Tinku (PW6) is concerned, his testimony is required to be read with caution. He was joined as a witness and examined under Section 161 Cr.P.C. after three months of the incident. He has admitted that he is not a witness to the recovery of blanket (kambal) from his jhuggi and had explained that when the said blanket/ kambal was recovered by the police, he was in his native village. There is no corroboration forthcoming to the testimony of Tinku. It is evident from the testimony of this Tinku (PW6) that according to him, he was residing in the jhuggi along with the brother of one Sunil. The prosecution has neither cited this Sunil nor his younger brother nor produced them as witnesses before this Court. There is no evidence on record to establish that Tinku (PW6) has been residing in the said Jhuggi from where the alleged Kambal was recovered by the police. Assuming that whatever Tinku has stated is correct but it is writ large that Tinku (PW6) has not specified the time when the accused came to his jhuggi or the time when they had left. The entire statement of Tinku is vague. It does not appear probable that after committing the incident the accused would have gone to the jhuggi of a third person situated in the same area and stayed overnight and in case if they did after having a drinking St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 78 of 91 sessions with the deceased, Tinku would have surely noticed the smell of alcohol from the accused, which again is not the case. One of two persons i.e. either Bijender Tiwari or Tinku are telling a lie. (83) Further, in so far as the time of death is concerned, I may observe that as per the postmortem report Ex.PW21/A the postmortem examination started at 29.12.2009 at 2:00 PM. Dr. V.K. Jha has given the approximate time of death as two days meaning thereby that the death occurred on 27.12.2009. If the time of death as opined by the Autopsy Surgeon is taken, then it implies that the deceased was alive throughout the intervening night of 26/27.12.2009 and also at the time when the body was discovered which is factually incorrect since on 27.12.2009 in the morning hours (i.e. _____ AM) the dead body of the deceased had already been discovered. Hence, even in if we assume that being winter season the rigor mortis of the dead body was delayed, the difference in the time of death comes to almost more than 12 hours if we take the version of Tinku to be correct which is not possible. In any case as per the testimony of Tinku the accused were present in his Jhuggi during the night and hence in any case the death of the deceased could not have been caused by them during this period when the accused were present in the jhuggi of Tinku. The time of death as mentioned in the postmortem report does not reconcile and is not compatible to the case put forward by the prosecution of the the death of the deceased being cause by the accused before they came to the jhuggi of Tinku and after they were seen St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 79 of 91 with the deceased by the witness Bijender Tiwari (PW11). (84) This being the background, I hereby hold that the prosecution has not been able to fulfill the proximity test (that the time gap when the deceased was last seen alive with the deceased is such that the possibility of any other person being the author of crime cannot be ruled out) and the material on record does not persuade me to reach an irresistible conclusion that it was the accused who could have caused the death of the deceased.

Medical Evidence:

(85) PW21 Dr. V.K. Jha has proved the postmortem report which is Ex.PW21/A showing the cause of death as asphyxia as a result of ligature pressure over neck structures produced by strangulation which injury was sufficient in the ordinary course of nature to cause death. At the time when the dead body was recovered a towel was found wrapped around the neck being the ligature material. No other material of strangulation has been placed by the Investigating officer before the doctor and therefore, no opinion has been given by Dr. V.K. Jha with regard to the material of strangulation/ weapon of offence.

(86) Further, as per the postmortem report there were two external injures on the body of the deceased i.e. (1) a circular abrasion mark around both the wrists and (2) Towel round the neck. However, I may observe that the injury No. 2 has not been specified by the Autopsy St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 80 of 91 Surgeon in the postmortem report and in place of injury no.2 it was written 'Towel round the neck' but the internal examination shows bruising of neck tissues, damage of Thyroid Cartilage with bruising of adjacent tissue. The cause of death has been opined as asphyxia as a result of ligature pressure over neck structures produced by strangulation which injury was sufficient in the ordinary course of nature to cause death. The postmortem examination on the body of the deceased was conducted on 29.12.2009 at 2:00 PM and Dr. V.K. Jha has also opined the time of death as two days approximately meaning thereby that the death had occurred around 2:00 PM on 27.9.2012. If the time of death as opined by the Autopsy Surgeon Dr. V.K. Jha is taken, then it implies that the deceased was alive throughout the intervening night of 26/27.12.2009 and also at the time when the body was discovered in the morning which does not appear probable. The body of the deceased having been discovered in the morning, it is not possible that the time of death was of afternoon of 27.12.2009. Being the winter season the Rigor Mortis had developed and the possibility of the death having been occurred in the morning hours of 27.12.2009 cannot be ruled out (during the period when the accused according to the prosecution version were sleeping in the jhuggi of Tinku).

(87) This being the background, I hereby hold that the postmortem report does not assist the prosecution in ascertaining the time of death so as to specify the proximity test beyond reasonable doubt.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 81 of 91 However, the cause of death has been proved to be asphyxia as a result of ligature pressure over neck structures though the ligature material has not been recovered and no opinion has been obtained with regard to the same. Forensic Evidence:

(88) The report of the FSL has been duly proved by PW17 Srinarain, Senior Scientific Officer which report is Ex.PW17/A and Ex.PW17/B is the covering letter. According to the FSL report Ex.PW17/A the blood sample of the deceased (exhibit 5) was found to contain ethyl alcohol 97.3 mg/ 100 ml of blood. This shows that the deceased had consumed alcohol and intoxicated prior to his death.

Deceased was the driver of truck No. HR­38M­2634 whose excel was found broken at the time of the incident:

(89) The case of the prosecution is that the truck had been parked at the spot where the body had been recovered since the excel of the truck had been broken. PW8 Amarjeet Singh is the owner of the truck No. HR­38M­2634 who has proved he is having a business of Transport in the name and style of Delhi Bihar Transport Co. and Prince Road Lines from BG­582, Sanjay Gandhi Transport Nagar. He has proved that deceased Santosh Tiwari a resident of Reva Madhya Pradesh was working as driver on the aforesaid truck and was working with them for the last ten years.

According to him, on 26.12.2009 the aforesaid truck was loaded with cement bags at Panipat and was parked at Burari under the instructions of St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 82 of 91 JP Cement having their office at NOIDA. He has further proved that Bijender Tiwari the cousin of the deceased was also the helper in the said truck. According to Amarjeet, earlier Rajesh and Rahul (juvenile) were employed as helpers on the asking of Santosh Tiwar who had told him that they were related to him and the accused Sanjay was also under his employment previously. The testimony of Amarjeet Singh finds due corroboration from the testimony of Pankaj Verma (PW7) who was the first person who had gone to check the truck on 26.12.2009 but did not find the truck at the spot where it was supposed to be unloaded. He has deposed that he searched the truck and when he reached Gali No.1 Kaushik Enclave, Burari he found his truck stationed in the street and a large number of police officials were found there and when he checked the truck, he found the dead body of Santosh Tiwari in the cabin. According to him, both the hands of Santosh Tiwari was found tied with white coloured rope and Biri, matchbox, Shikhar Gutka were found on the chest of the body and one empty bottle of country made liquor and another empty quarter was also found lying in the cabin. He has proved that on the date of incident Helper Bijender Tiwari had also gone with the deceased Santosh Tiwari on the aforesaid truck. According to him, he had spoken to Santosh Tiwari on telephone one day before the incident and asked him to unload the truck at Dharamkanta.

(90) Further, the witness Dinesh Kumar (PW10) has also similarly deposed that on 26.12.2009 he was present in his office and had St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 83 of 91 got 400 bags of JP Cement loaded in the truck in question and got it departure for Delhi and prepared the builty note which is Ex.PW10/A. Ashok Kumar (PW9) has proved that on 27.12.2009 on the asking of the Manager of the Company he inspected the truck in question bearing No. HR­38M­2634 and found the excel of the truck broken on which he put a new excel in the truck. He has proved that the old excel was handed over to the police which was seized vide memo Ex.PW7/A. (91) In view of the above, it stands established that the deceased was the Driver on truck bearing No HR­38M­2634 whose excel was broken due to which reason the truck had been parked at a place different to the one where it was supposed to be parked.

Chance prints lifted from the spot do not match with the accused:

(92) It is evident from the record that after the Crime Team visited the scene of crime, chance prints had been lifted from the various places in the truck. Ct. Ram Kishan (PW15) who lifted the chance prints from the back view mirror of the front side which was fixed on the roof above the front mirror, has proved having prepared the SCO report to Finger Print Bureau, Malviya Nagar which report is Ex.PW15/A. The prosecution has failed to bring on record evidence to connect the accused with the said chance prints so lifted from the back view mirror of the front side of the truck thereby creating a doubt in the mind of the Court.

St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 84 of 91 Scene of Crime appeared to have been tampered:

(93) Perusal of the photographs Ex.PW14/A­1 to Ex.PW14/A­22 show that the hands of the deceased were tied with a thin rope and on his chest the packets of biri, matchbox and Gukka were lying. Further, the fluid/ eraser ink had been spread on a red cloth and a liquor bottle was found present. The photographs of the dead body show that the matchbox, biri and Gukta had been thrown on the body of the deceased much later.

The postmortem report Ex.PW21/A does not show the presence of fluid/ eraser ink in the blood of the deceased thereby showing that the person who had committed the offence has tampered with the Scene of Crime and tried to create false evidence. Had the offence been committed in the truck itself, the possibility of the deceased having offered a stiff resistance cannot be ruled out (as the contact of alcohol in blood was not much). Also, some signs of struggle etc. would have been there which is again not the case. The manner in which the dead body was found lying inside the truck with a weak ligature material around the hands and various items i.e. fluid bottle, biri, gutka and match box thrown on his chest indicates the planned manner in which the crime has been committed. The possibility of the offence having taken place else where the thereafter the body being put in the truck in question cannot be ruled out. No investigations have been conducted on this aspect.

(94) Further, the place where the truck in question was found parked is a narrow lane and had there been some activities in the truck, St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 85 of 91 the passer­byes of the area should have noticed the same which again is not the case. The Investigating Officer has not conducted any investigations or made any inquiries from the neighbours/ residents of the area. There is no recovery at the instance of accused Sanjay @ Sanju and the only recovery alleged from the accused Rajesh Kumar is the blanket from the house of Tinku on 28.12.2009 which blanket according to Tinku was not recovered in his presence nor he informed the police till 23.3.2010 that it belong to the accused Rajesh. The possibility of planting of this blanket so as to establish the presence of Rajesh in the area, cannot be ruled out.

No history of previous animosity:

(95) I have gone through the evidence on record which is suggestive of the fact that the deceased was known to the accused even prior to the incident as they belong to the same village and were relatives.

Even on the recommendations of the deceased, the accused had been put on job in the same company where the deceased was working. According to Bijender Tiwari, the accused were alcoholic and do not have a good character but there is nothing else to suggest that they had any kind of history of criminal record or inimical towards the deceased. Also there is nothing on record to suggest that after Bijender Tiwari left the spot there was any kind of scuffle or quarrel between the accused and the deceased. This being so, there does not appear to exist any motive for the accused to St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 86 of 91 have planned the killing of the deceased.

Recovery of the blanket at the instance of accused Rajesh:

(96) The case of the prosecution is that after the killing of the deceased the accused had taken his blanket and thereafter came to the jhuggi of Tinku where they spent a night and went away in the morning. It is also the case of the prosecution that after the accused Rajesh was arrested, he disclosed that he could recover the blanket belonging to the deceased after which the led the police party to Jhuggi No. B­100, Mauzi Wala Bagh, Azadpur, Delhi (jhuggi of Tinku) from where he got recovered one blanket of skyblue colour which was the one which he had stolen. The said blanket had been identified by Bijender Tiwari as belonging to his deceased brother.

(97) It is evident that at the time when the accused Rajesh allegedly took the police to the jhuggi of Tinku from where he got recovered the blanket, Tinku was not present in his jhuggi and the blanket was recovered in his absence. No Judicial Test Identification Parade of the said blanket has been got conducted from Tinku and it was only after three months that his statement was recorded by the police and it is for the first time in the Court that Tinku had identified the said blanket.

(98) In this regard, I may observe that it is a settled law that mere recovery of incriminating articles at the instance of an accused person, without there being any other evidence to connect the accused with the St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 87 of 91 commission of the crime, is insufficient to bring home the guilt of the accused. (Ref.: Narinbhai Haribhai Prajapati Vs. Chhatar Singh & Ors. reported in AIR 1977 SC 1753; Surjit Singh Vs. State of Punjab reported in AIR 1994 SC 110 and Deva Singh Vs. State of Rajasthan reported in 1999 Crl. L.J. 265).

(99) Further, in the case of Niranjan Lal Vs. State of Haryana reported in 1994 (2) page 620 (DB) the Hon'ble High Court of Punjab and Haryana has held that:

"...... It is not sufficient to connect the accused with offence even if the wrist watch belonging to the deceased recovered from the accused. Wrist watch is not such a valuable commodity that accused would keep it concealed in his house and create evidence against himself. Accused held not guilty of offence...."

(100) In view of the above, I hereby hold that the recovery of a mere blanket from the house of Tinku at the instance of the accused Rajesh, does not inspire confidence. Assuming that the blanket was recovered, at the most it would reflect the presence of the accused in the area but does not connect him with the offence in any manner. FINAL CONCLUSION:

(101) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 88 of 91 down the tests which are pre­requisites before conviction should be recorded, which are as under:

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 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.

(102) Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused Rajesh and Sanjay stand established. It also stands established that the deceased was the Driver on truck bearing No HR­38M­2634 whose excel was broken due to which reason the truck had been parked at a place different to the one where it was supposed to be parked. However, the prosecution has not been able to fulfill the proximity test (that the time gap when the deceased was last seen alive with the deceased is such that the possibility St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 89 of 91 of any other person being the author of crime cannot be ruled out) and the material on record does not persuade me to reach an irresistible conclusion that it was the accused who could have caused the death of the deceased. The cause of death has been proved to be asphyxia as a result of ligature pressure over neck structures though the ligature material has not been recovered and no opinion has been obtained with regard to the same. The postmortem report does not assist the prosecution in ascertaining the time of death so as to specify the proximity test beyond reasonable doubt. The prosecution has failed to bring on record evidence to connect the accused with the said chance prints so lifted from the back view mirror of the front side of the truck thereby creating a doubt in the mind of the Court. The recovery of a mere blanket from the house of Tinku at the instance of the accused Rajesh, does not inspire confidence and assuming that the blanket was recovered, at the most it would reflect the presence of the accused in the area but does not connect him with the offence in any manner.

(103) I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The material brought on record by the prosecution are insufficient so as to hold that each of the accused Rajesh and Sanjay was St. Vs. Rajesh Kumar Etc., FIR No. 262/09, PS Swaroop Nagar Page No. 90 of 91 guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Rajesh and Sanjay. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Rajesh Kumar and Sanjay @ Sanju, beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 302/392/397/411/34 Indian Penal Code. They are directed to be released from judicial custody if not required in any case.

(104)                File be consigned to Record Room.



Announced in the open court                                         (Dr. KAMINI LAU)
Dated: 3.7.2012                                                     ASJ­II(NW)/ ROHINI




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