Delhi District Court
State vs . Manawar @ Bihari on 24 September, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE-02 (WEST), DELHI.
Sessions Case No. 56073/2016
Assigned to Sessions on 04.03.2013
FIR No. 224/2012
Police Station Ranjit Nagar
Under Section 302/404/411 IPC
Charged under section 302/404/411 IPC
State Vs. Manawar @ Bihari
S/O Nazir Mian
R/O Village-Labha
P.S Pranpur,
Distt. Katihar,
Bihar
Arguments heard on 13.09.2019
Date of Judgment 24.09.2019
Final Order Acquitted
Appearance(s) : Sh.Ram Pyara, Ld. Addl. PP for the State.
Sh Ashish Laroia, Ld. Amicus Curiae for the accused.
JUDGMENT
PRELUDE
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C, in respect of FIR No.224/2012, U/s 302/404/411 IPC of PS Ranjit Nagar, Delhi. The charge sheet was committed to the Ld. Sessions Judge (West), vide order dated 01.03.2013 of the Ld. MM, along with the accused for the trial of offence u/s 302/404/411 IPC.
BRIEF FACTS:
S.C No.56073/16 State Vs Manawar @ Bihari Page 1 of 462. The brief facts, as per the case of the prosecution, are that on 13.11.2012, on receipt of DD No. 15A at PS Ranjeet Nagar, information was received regarding a person lying at House No. A-240,DDA Flat, Ranjet Nagar. Said information was conveyed to ASI Khajan Singh who kept the DD pending. ASI Khajan Singh alongwiht Ct. Shailender went to House No. 246, First Floor, Block No. A Ranjit Nagar. The house was found latched from outside but was under construction. He went inside the room and found that one boy aged about 22 years lying on a cot and half of his body was wrapped in a blanket and whose right ear was having some blood. Injury mark was visible on his head, however, there was no other injury visible on his body. No evidence of any struggle was found at the spot. Landlord of the house namely Suresh Kumar was enquired and he told that he had given the work of doing POP in his house to deceased Mahesh. He further told that one boy namely Bihari used to work with deceased Mahesh. They both used to sleep in this house. After inquiry, the name of deceased was revealed as Mahesh r/o Village Gogia Udaipur, Distt.-Sidharth Nagar, UP. Crime team was called. It inspected the spot and photographs of the spot were taken. Dead body of deceased was shifted to Mortuary, DDU hospital and preserved. Suresh further told that the mobile phone having no. 9716154014 of deceased Mahesh was not found at the spot. Even the boy Bihari working S.C No.56073/16 State Vs Manawar @ Bihari Page 2 of 46 with him was not found anywhere. On 15.11.12, after the relatives of deceased came, post mortem on the body of deceased was got conducted and thereafter, body was handed over to his father. Post mortem report was obtained as per which the cause of death was opined to be due to head injury caused by blunt and forceful impact upon the head. Thereafter, tehrir was prepared and on the basis of tehrir, FIR was got registered u/s 302 IPC and further investigation was conducted by Inspector Joginder Singh. During the investigation of the case, IO prepared the site plan at the instance of ASI Khajan Singh. Statement of witnesses were recorded. From the spot, piece of cot where deceased was lying was seized and taken into possession. A team of police officials sent to the native place of the boy Bihari at Katihar, Bihar. SI Kamlesh arrested Bihari from village Dhabor, Distt. Katihar, Bihar, his personal search was conducted, his disclosure statement was recorded wherein he confessed that he committed the murder of deceased Mahesh as he had refused to make his payment of Rs. 250/- towards daily wages for doing the POP work though he had already received the payment. Due to this reason, they had quarrel during which, he hit the deceased on his head with iron pipe due to which he fell down and died. He laid him over the bed and put blanker over his body and took Rs. 5,500/- and his mobile phone from his pocket. From his possession, mobile phone Wing M 64 Black Colour was got recovered and the amount of Rs.
S.C No.56073/16 State Vs Manawar @ Bihari Page 3 of 465,500/- had already been spent by accused and hence, could not be recovered. Thereafter, sections of 394, 397,411 IPC were added. One railway ticket, which accused had purchased for going to his native place Katihar, was also recovered from him which was also seized and taken into possession. At the instance of accused Manwar @ Bihari and at the pointing out, iron pipe was got recovered. The weapon of offence was produced before Autopsy surgeon for his opinion who opined that the iron pipe could have been used for infliction of injury on the head. Photographs of the scene of crime was obtained from Crime Team. PCR form was obtained. Scaled map was got prepared, exhibits were sent to FSL Rohini. Section 404 IPC was added in place of sections 394/397 IPC. After finding sufficient evidences available on the file, a challan was filed before the Ld. MM for the offence under section U/S 302/404/411 IPC against the accused.
THE CHARGE
3. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused, found a prima facie case for the offence punishable under section 302/404/411 IPC against the accused. The Charge was framed accordingly vide order dated 09.04.2013, to which S.C No.56073/16 State Vs Manawar @ Bihari Page 4 of 46 the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In order to prove its case, the prosecution has examined 27 witnesses. The PW-3 Sh. Karamchand, PW-4 Sh Gopal, PW-5 Ramraj Sadhu, PW-7 Suresh, PW-10 Madhav and PW-11 Ram Asarfi are the public witnesses, while other witnesses are either police officials or medical/ experts witnesses who have participated during the course of investigation.
5. PW1 Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. on the notice u/s 91 Cr.P.C received from SI Ranbir Singh gave certified copies of CDR of mobile number 9716145014 w.e.f. 01.11.2012 to 12.11.2012, certified copies of two pages of CIF with photocopy of supporting documents, cell ID charge in one page, certificate u/s 65B Indian Evidence Act vide letter Ex.PW1/A.
6. PW-2 HC Surendra has deposed that on 18.11.2012 on receipt of tehrir sent by ASI Khajan Singh he recorded FIR of present case vide Ex PW2/A. He has proved his endorsement made on the on original tehrir vide Ex PW2/B. He has also proved DD No. 12A dated 18.11.12 as Ex.PW2/C.
7. PW-3 Sh Karam Chand has deposed that Mr. Suresh Chand is his relative and he was looking after the repair S.C No.56073/16 State Vs Manawar @ Bihari Page 5 of 46 work of his house no. A-246, DDA Flats, New Ranjeet Nagar. At that time he was having one mobile no.9250217717 which was given to him by Suresh. On 12.11.2012, at about 8 p.m, he went at the aforesaid house of Suresh. He noticed that some altercation was going on between Thekedaar Mahesh and his labour namely Bihari. Bihari was demanding the money from Mahesh and was compelling him to give the amount on that day itself whereas Mahesh was saying that he would give the amount on the next day. He intervened and made both of them understood and thereafter he came from there. On the next day i.e. 13.11.2012, Gopal plumber came at his residence and he asked him to accompany as Mahesh was not getting up. Thereafter, he along with Gopal went at A-246, DDA Flats, New Ranjeet Nagar. He opened the kundi of the door and saw that Mahesh was lying on a bed and was not getting up. Blood was oozing out from right side ear. He made a call at 100 number from his aforesaid mobile. After sometime, ASI Khajan came there and further proceedings were conducted by the police official. He correctly identified accused Bihari in the court.
8. PW-4 Sh. Gopal deposed that he was doing the work of plumber at the house of Suresh situated at A-246, DDA Flats, New Ranjeet Nagar. On 13.11.2012, he received a call from Suresh and he stated that he was trying to connect Mahesh, S.C No.56073/16 State Vs Manawar @ Bihari Page 6 of 46 who was doing POP work at his house A-246, on his mobile but his mobile was switched off. Suresh asked him to go there and asked Mahesh that he should talk with him. Thereafter he went at A-246 and the kundi of the door was found closed. He made a call to Suresh and stated regarding the same to him and on this Suresh asked him to open the kundi. He opened the kundi and saw that Mahesh was lying on a bed and there was no response from his body. Immediately he informed Suresh regarding the same and then Suresh asked him to call Gandhi from D-47, DDA Flats, Ranjeet Nagar. Accordingly, he went at D-47 and informed him regarding the same. He along with Gandhi came at A-246 but there was no response from Mahesh. Gandhi informed the police at 100 number and after some time police officials came and they conducted the proceedings. He further deposed that he knew accused Bihari standing in the dock. Bihari was working as a labour with Mahesh.
9. PW-5 Ram Raj has deposed that he had done carpentry work at flat no.A-246, DDA Flats, New Ranjeet Nagar which belongs to Suresh. After he finished his carpentry work, Suresh asked him to provide him some person who can do POP work. Accordingly, he introduced one Thekedaar namely Mahesh who used to do POP work. One labour namely Bihari was working with him and after having talks with Suresh, Mahesh started doing POP work at the aforesaid flat. Later on he came to know that Mahesh has expired in the said flat. He identified accused Bihari, before the court as the same person who was doing labour S.C No.56073/16 State Vs Manawar @ Bihari Page 7 of 46 work with Thekedaar Mahesh at the aforesaid flat.
10. PW-6 HC Jagdish Kumar is a police witness being MHC(M) who has deposed with regard to the deposit of sealed parcels with him and their entries made in the store room register on 13.11.2012, 15.11.2012, 18.11.2012, 21.11.2012, 22.11.2012. He has proved the entries as Ex.PW 6/A to Ex.PW6/E. He further deposed that on 12.12.2012, he sent 07 sealed parcels to FSL Rohini through Ct. Rajender vide RC No. 111/21/11. Same is proved as Ex.PW6/F. This witness was recalled for further examination on application u/s 311 Cr.P.C on 31.08.18. He deposed that on 25.02.13 while posted as MHC(M) in PS Ranjit Nagar, Ct. Narender handed over to him seven sealed parcels with the seal of RK FSL DELHI which were deposited in malkhana and on the same day, the FSL report in sealed envelope was received and handed over to the IO Inspector Joginder Singh. He had made entry at sl. No. 346 to this effect. Said entry is proved as Ex.PW6/G.
11. PW-7 Sh. Suresh deposed that in the month of November 2012, renovation work was going on in Flat No. A-246, Ranjit Nagar, Delhi. The deceased Mahesh who used to do the work of POP, was came in his contact through Ram Raj who was a carpenter. He gave him a contract of the above said house for POP to the deceased Mahesh for a sum of Rs.47,000/-. Out of the total amount, he had given him Rs.40,000/- to the S.C No.56073/16 State Vs Manawar @ Bihari Page 8 of 46 deceased Mahesh for his work.
He further deposed that on 12.11.2012, the deceased Mahesh made him a telephonic call that he had finished his POP work and he asked him to pay the rest of the payment. On this, he told him that he would pay the said amount on the next day i.e. 13.11.2012. On 13.11.2012 at about 10-11 AM, he made a call to Mahesh and his phone was found switched off. Thereafter, he made a call to Gopal and asked him to talk to Mahesh. Gopal went to his house where he found the door bolted from outside. He asked Gopal on phone to open the door. Thereafter, he opened the door and found that Mahesh was sleeping on the bed while having blanket over his body. Thereafter, Gopal went back to his house. Thereafter, after some time Gopal alongwith Gandhi came to his house and when they tried to wake up Mahesh, they found that he was not responding. On this they called at 100 number. He reached at the spot and police also reached at the same time. Police conducted the proceedings. When he reached at the spot, he found that Mahesh had expired and blood was oozing out from his ear. Police also lifted the blood stained plyboard of the bed. On 15.11.2012, he was called by the police in the PS. From there, he and father of the deceased Mahesh went to DDU Hospital. Father of the deceased Mahesh identified the dead body of Mahesh and the dead body was handed over to him after post mortem, vide Ex.PW7/A. On 18.11.2012, he joined the investigations of this case with the police and went to Village- Labha, Distt. Katiyar, Bihar and with the help of local police, the accused present in court today was apprehended from his village. He identified him as he was working with deceased Mahesh. The accused was interrogated and arrested vide memo Ex.PW7/B. The accused got effected recovery of two S.C No.56073/16 State Vs Manawar @ Bihari Page 9 of 46 mobile phones belonging to him and one mobile phone belonging to the deceased. One railway ticket was also recovered from the possession of the accused. The accused also got effected recovery of his clothes which he was wearing at the time of occurrence and one bag of Nike. The above said articles were separately seized. The accused and the case property was brought to Delhi. IO also recorded my statement.
On 05.12.2012, the police officials visited the spot and took rough notes. He correctly identified the case properties i.e mobile phones of make Nokia, Wing belonging to the deceased and got recovered by the accused. He also identified two Mobile phones of make Arise and A-Housing. Same are Ex.P1 to P-3. He also identified bag of make Nike having Lungi, one T-shirt and shirt. The same are collectively Ex.P4.
12. PW-8 Inspector Mahesh is Draftsman who has prepared the scaled site plan and proved the same as Ex.PW8/A.
13. PW-9 is Sh. Sheikh Asif Ali, Headmaster Utkarmit Madhya Vidhyalaya, Labha, Katihar, Bihar who has produced the school record of accused as per which the date of birth of accused is 12.01.1994. Same is Ex.CW1/A.
14. PW-10 Madhav and PW-11 Sh Ram Asarfi are the relatives of deceased Mahesh. They have identified the dead body of deceased Mahesh vide statements Ex.PW10/A and identification memo Ex.PW7/A.
15. PW-12 Ct. Shailendra Singh deposed that on 13.11.2012, S.C No.56073/16 State Vs Manawar @ Bihari Page 10 of 46 he was posted at PS Ranjit Nagar. On that day, on receipt of DD entry 15/A, he along with ASI Khajan Singh reached at A-246, DDA Flats, New Ranjit Nagar and noticed one male dead body of about 22 years old was lying on the bed in the room of the house. There was injury on the right ear and head of the dead body. One blanket on the half of the dead body. The deceased having blue colour jeans and gray colour t-shirt. The landlord namely Suresh Kumar identified the dead body as of Mahesh who was working in his house as POP worker. Suresh Kumar also disclosed that one bihari and the deceased Mahesh were working in his flat for the last 20 days. The crime team was called at spot and scened was got photographed. A cash of Rs. 65 and coins of Rs. 11/- and one Rudhraksh was recovered from the search of dead body and the same were seized vide memo Ex. PW 12/A. One diary was also recovered from the pocket of the dead body and the same was seized vide memo Ex. PW 12/B. The earphone cord of mobile phone was also recovered from the spot and the same was sealed in the pulanda with the seal of KS and seized vide memo Ex. PW 12/C. The blanket which was lying on the dead body was also sealed and seized vide memo Ex. PW 12/D. Another blanket having blood stains which was lying on the bed was also sealed and seized vide memo Ex. PW 12/E. One plastic bag (katta) tide with iron lead which was used as pillow and lying under the head of the dead body was also sealed and seized vide memo Ex. PW 12/F. One quarter bottle of liquor which was underneath the bed was also sealed and seized vide memo Ex. PW 12/G. The dead body was shifted to the hospital and got preserved. And he was deputed to guard the same. During the tenure the dead body was S.C No.56073/16 State Vs Manawar @ Bihari Page 11 of 46 remained preserved nothing was tampered or allowed to be tampered with it. On 15.11.2012, he again joined the investigation and the IO conducted the inquest proceedings. In the hospital the post mortem was conducted and after the PM the dead body was handed over to the father of deceased. After the PM, the doctors handed over two sealed pulandas and sample seal and he handed over the same to IO who seized the same vide Ex PW 12/H. On 18.11.2012, the DO handed over to him copy of the FIR and he handed over the same to Inspr. Joginder. Inspr. Joginder also recorded his statement.
16. PW 13 SI Dhan Singh deposed that on 13.11.12, while posted as Incharge Mobile Crime Team, Central Distt. On receipt of information from the control room, he alongwith his team members visited the spot A-246, 1 st Floor, DDA Flats, Ranjit Nagar where ASI Khazan Singh alongwith local police staff met him. He observed dead body of one male person aged about 24 years lying on the bed with head injuries, blood was oozing out from his nose and ear. Photographer took the photographs of the scene of crime. He inspected the scene of crime and prepared a detailed report Ex.PW13/A. On 17.12.12, Insp. Joginder Singh SHO PS Ranjit Nagar came to mobile crime team office Paharganj and recorded his statement.
17. PW 14 Ct. Vijay deposed that on 13.11.12, he was posted as Photographer in Mobile Crime Team, and on that day, he alongwith other staff members visited the spot A-246, 1 st Floor, DDA Flats, Ranjit Nagar where ASI Khazan Singh alongwith local S.C No.56073/16 State Vs Manawar @ Bihari Page 12 of 46 police staff met them. Dead body of one male person aged about 24 years was lying on the bed with head injuries, blood was oozing out from his nose and ear. He took 11 photographs of the scene of crime. Photographs are Ex.PW14/A.1 to Ex.PW14/A.11 and negative thereof are Ex.PW14/B.1 to Ex.PW14/B.11.
18. PW15 Ct. Rajender deposed that on 12.12.12, he collected seven pullandas from MHC(M) and deposited the same to FSL Rohini vide RC No. 11/21/12.
19. PW16 HC Om Prakash that on 18.11.12, while posted as Ct. in PS Ranjit Nagar, he delivered envelope containing copy of FIR of this case at the residences of CMM, Joint CP, Addl. CP and Addl. DCP and ACP Patel Nagar. His statement was recorded by the IO.
20. PW17 Sh. Harish Kumar Book Supervisor, Northern Railway, Old Delhi Rly Station has proved that the railway ticket No. W55933429 was purchased on 13.11.12 from Old Delhi Rly Station Counter No. 7. Railway ticket is Ex.PW17/A and its verification is Ex.PW17/B and Ex.PW17/C.
21. PW18 SI Rajesh deposed that on 03.12.12 he was posted at PS Ranjit Nagar as Sub Inspector. On that day, Inspector Joginder handed over to him one letter and one parcel, seal with the seal of KS to be taken to Dr B.N Mishra, of DDU S.C No.56073/16 State Vs Manawar @ Bihari Page 13 of 46 Hospital for obtaining subsequent opinion. He gave the said parcel to Dr B.N. Mishra and after removing the seal they took out the iron pipe from the said parcel. The said Doctor handed over to him the opinion letter in sealed condition and resealed the said pipe after giving the opinion in the same pulanda. The said pulanda now sealed with the seal of DFMT DDU. He handed over the sample seal to him. Opinion letter was handed over by him to Inspector Joginder. Sample seal and the pulanda was deposited with Malkhana, PS Ranjit Nagar.
22. PW19 Dr. B.N. Mishra Medical Officer cum Medico Legal Expert and Criminologist, Deptt of Forensic Medicines, DDU Hospital that on 15.11.2012, he was posted with Dr Santosh Kumar in the same Department. He had worked with him and seen him writing and signing in the course of his official duties. Dr. Santosh Kumar had left the services of DDU hospital and his whereabouts is not traceable. He further deposed that on that day, the post mortem examination on the body of deceased Mahesh son of Ram Sumer Gupta, aged 22 yrs male was conducted by Dr Santosh Kumar. The body was sent by ASI Khazan Singh and identified by Ram Sumer Gupta ( father) and Suresh ( Owner of the Flat) . Dr Santosh Kumar prepared the PM report No. 1504/12 after completion of post mortem examination. As per PM report No.1504/12, it is noted that there were two grazed abrasion and one incised appearing lacerated wounds present on the body of deceased. The lacerated wounds were present on the head of deceased having dimensions of 8 cm x 1 cm x bone deep present on the occipital region of head. On internal examination of the head, it S.C No.56073/16 State Vs Manawar @ Bihari Page 14 of 46 was observed that the sub dural and sub arachnoid hemorrhage was present on different part of brain with generalized odema. The occipital wound was fractured with clotted blood present on the basal part of the brain. After completion of the post mortem, Dr Santosh Kumar opined that the cause of death was due to head injuries i.e. a massive subdural and sub arachnoid hemorrhage with hemorrhagic contusions of the brain caused by blunt and forceful impact upon the head. The head injury was sufficient to cause death in ordinary course of nature. The head injury i.e. External Injury No.3 could have been inflicted by hard, heavy and cylindrical objects like club, rods etc. While rest of injuries i e Injury No.1 and 2 could be caused by repeated striking of head over hard surface like floor, wall etc. The possibility of homicide could not be ruled out. The time since death was approximate 2 ½ days prior to post mortem examination. The detailed PM report, prepared by Dr Santosh Kumar is Ex PW19/A which bears signatures of Dr Santosh Kr at point A on each of the four pages. He further deposed that on 3.12.2012, an application from PS Ranjit Nagar was received alongwith the sealed pulanda containing weapon of offence and subsequent opinion was sought regarding consistency of weapon of offence with injuries sustained on the body of deceased Mahesh Son of Ram Sumer Gupta vide PM No.1504/12. He opened the seal pulanda which was sealed seal of KS and examined the produced weapon of offence that was iron pipe. The particulars of the same had been mentioned in his report regarding subsequent opinion. After examination of produced weapon of offence and perusal of said PM report he gave his report Ex PW19/B. After S.C No.56073/16 State Vs Manawar @ Bihari Page 15 of 46 giving the opinion, he resealed the weapon of offence in a pulanda and sealed with the seal of DFMT DDU HOSPITAL and handed the same alongwith the sample seal to the police official concerned.
23. PW20 SI Kamlesh Kumar deposed that on 18.11.2012, he was posted at PS Ranjit Nagar, Delhi. On that day, he alongwith ASI Khazan Singh, HC Anil Kumar, HC Tulsi Ram, public witness Suresh left for Katiyar, Bihar to arrest the accused Manwar on the instruction of SHO Insp. Joginder Singh by train. He further deposed that on 19.11.2012, they reached Katihar Railway Station at 8.AM. They reached village Dabol, PS Pranpur, District Katiar, Bihar at around 3.00 PM at the address of father- in-law of accused where he was arrested upon identification by Suresh and his personal search was conducted. He recorded is disclosure statement Ex.PW20/B. The signatures of the police officials ASI Khazan Singh, HC Tulsi Ram and HC Anil Kumar were also taken on the disclosure statement as witnesses. During personal search, three mobile phones were recovered, two mobile phones make Nokia and the second mobile phone Make Arise belonging to accused and one mobile phone of Wing Company of the deceased Mahesh. The mobile phones make Nokia and Arise were sealed in a clothed pulandha with the seal of KK and the same were seized through seizure memo vide Ex.PW20/C and the mobile phone make Wing which was belonging to the deceased was sealed in a separate clothed pulandha with the seal of KK and was seized through seizure Ex.PW20/D. A Railway ticket was also recovered from his purse by which he travelled from Delhi to Katihar. The Railway S.C No.56073/16 State Vs Manawar @ Bihari Page 16 of 46 ticket Ex.PW17/A was seized vide seizure memo Ex.PW20/E. Seal after use was handed over to HC Anil. Thereafter accused led them to his residence situated at village Labha, Police Post, Roshna, PS Pranpur, Katihar, Bihar and he got recovered one bag containing his clothes which were worn by him at the time of incident i.e. one Pant, one shirt, one Ghamchha, etc. The same were sealed with the seal of "KK" and were seized through Seizure Memo Ex.PW20/F. On the same day, medical examination of accused was got conducted and he stayed in the lock up of PS Nagar Katihar,Bihar for the night. He further deposed that on 20.11.2012, accused was produced before Ld. CJM of Katihar, Bihar and got his transit remand for four days. He alongwith the police officials, Suresh and accused left for Delhi by train. On 21.11.2012, they came back to Delhi alongwith accused and he was medically examined at Lady Harding Hospital. He had recorded the statement of witnesses at the spot. The case properties were deposited the malkhana and accused was locked up in PS Patel Nagar, Delhi. It is further deposed that on 22.11.2012, he alongwith accused, ASI Khazan Singh and one HC joined the investigation and accused led them to MCD Park situated at Block, New Ranjit Nagar, Delhi and got recovered one iron pipe from the bushes near the wall of the above-said Park and identified the same as weapon of offence. The pipe was around 25 inches length. The said pipe was having stains. The same was sealed by ASI Khazan Singh with the seal of KS and same was seized through Seizure Memo Ex.PW20/G. Thereafter, accused led them to the spot i.e. House No. A-246, First Floor, DDA Flats, New Ranjit Nagar and pointed out the spot, the pointing out memo Ex.PW20/H. S.C No.56073/16 State Vs Manawar @ Bihari Page 17 of 46 They came back to the PS and case property was deposited in the Malkhana. Later on, accused was produced before Ld. MM/Delhi and was given on one day PC Remand and he was interrogated. This witness also identified mobile phone of make Wing as the same which was recovered from possession of accused stated to be of deceased. The same is Ex.P-1. He also correctly identified two mobile phones make Arise and Nokia as the same which were recovered from accused which Ex. P-2 and P-3. He also correctly identified a bag of make Nike and having Lungi, one T-Shirt and Shirt. He identified the same as got recovered from are and same are collectively Ex. P-4. He also correctly identified one metallic pipe which was recovered from accused.
24. Both PW-24 HC Anil Kumar and PW-25 HC Tulshi have joined the investigation alongwith PW-20 SI Kamlesh Kumar. Hence, their depositions are on the similar lines as that of PW-
20.
25. PW21 Inspector Joginder Singh deposed that on 13.11.2012, he was posted at PS Ranjeet Nagar as SHO. On that day, a PCR call was received in the PS that one person is lying in A-246, DDA flat, Ranjit Nagar. The information was recorded vide DD no. 15A and the said DD was marked to ASI Khajan Singh who along with Ct. Shailender reached at the spot. Subsequent thereto, he along with staff members reached at the spot, where one boy aged about 20-22 years was lying on the bed , having small injury on his head and a S.C No.56073/16 State Vs Manawar @ Bihari Page 18 of 46 small trace of blood had oozed out from from his right ear. That boy was wearing a jeans pant and grey coloured shirt and had covered himself up with a blanket. One empty quarter liquor bottle was lying near the bed in open condition which was seized by ASI Khajan Singh. The boy lying in the said condition, was identified by Suresh Kumar , the owner of the house as one Mahesh Kumar. On enquiries, Suresh Kumar told him that he had given the contract of having done POP and white wash to him. Suresh Kumar also told that one another boy namely Bihari who was helper of Mahesh Kumar, was also working with him and he was not present in the said house at that time. Suresh Kumar further told that as he was contacting Mahesh Kumar on his mobile having number 9716154014, it was going switched off. He found no movement in the body of the said boy. ASI Khajan Singh with the help of Ct. Shailender shifted the said boy to DDU hospital where IO came to know that he had died and he shifted him to Mortuary, DDU Hospital. Prior to that, ASI Khajan Singh had also called up the Crime Team, the members of which visited the spot and handed over the Crime team report to ASI Khajan Singh. Thus, the said DD entry was kept pending. He further deposed that on 15.11.2012, one Ram Sumer, father of deceased Mahesh along with other relatives reached at PS Ranjeet Nagar. ASI Khajan Singh prepared the inquest papers and post mortem was conducted on the body of the deceased at DDU Hospital on the said date. On 18.11.2012, post mortem report of the deceased Mahesh Kumar was received. ASI Khajan Singh prepared rukka Ex. PW 2/B by making endorsement on the said DD and handed over the same to the then Duty Officer S.C No.56073/16 State Vs Manawar @ Bihari Page 19 of 46 HC Surender for registration of the case . Thereafter, the said case was assigned to him. He further deposed that on the same day, he along with ASI Khajan Singh and HC Anil reached at the spot i.e first floor of A-246, DDA flat, Ranjit Nagar where owner of the house namely Suresh Kumar was found present. He had seized a piece of blood stained ply of bed on which the deceased was lying and kept the same in a pullanda, sealed with the seal of JS vide seizure memo Ex. PW 21/A. Thereafter, he had prepared the site plan without scale Ex. PW 21/B at the instance of ASI Khajan Singh. Ct. Shailender reached at spot and handed over to him the copy of the present case FIR, the original rukka and the Certificate U/s 65B of Evidence Act. He recorded the statements of ASI Khajan Singh, Ct. Shailender , HC Anil and Suresh Kumar. After investigation, the case property was deposited in the malkhana. Statement of Ct. Om Prakash, Special Messenger was recorded by him. He further deposed that ASI Khajan Singh also told him that one mobile having its number 8750137830, which was being used by accused whose name later on came to know as Manawar, was issued in the name of Gudri Khan ( who was his father-in-law). ASI Khajan Singh made enquiries from Gudri Khan who told him that accused was a resident of Katihar, Bihar and the said phone was being used by him and he was away at Bihar. So, a team comprising of SI Kamlesh, ASI Khajan Singh, HC Anil, HC Tulsi and Suresh Kumar was sent for investigation to Katihar, Bihar and for arrest of accused. He was arrested by SI Kamlesh and his team members from where he was taken to Delhi. SI Kamlesh informed him that from his possession, mobile phone S.C No.56073/16 State Vs Manawar @ Bihari Page 20 of 46 and mobile phone of the deceased was taken. One Railway ticket by which he had gone to Katihar on the day of incident had also been seized by him alongwith his clothes. ASI Khazan Singh also recovered one iron pipe ( weapon of offence ) at the instance of accused.
He further deposed that on 03.12.12, PCR form was collected through HC Tulsi. SI Rajesh was also sent to DDU hospital to obtain the subsequent opinion regarding weapon of offence i.e iron pipe. He was sent with the PM report and the sealed pulanda of the iron pipe. He obtained the subsequent opinion from the Doctor concerned. SI Rajesh handed over to him, the subsequent opinion so received and the pullanda of the iron pipe was deposited back by SI Rajesh in the malkhana.
On 05.12.12, scaled site plan was got prepared by him through SI Manohar, Draughtsman at the instance of Suresh Kumar in his presence. On 12.12.12, all the exhibits were sent to FSL, Rohini through Ct. Rajender. Statement of Ct. Rajender and MHC(M) HC Jagdish was recorded by him. A railway ticket which was seized by SI Kamlesh at the time of your arrest was also verified from Railway Authority by him. Thereafter, FSL report was collected by him and submitted before the Court after the filing of main chargesheet. During investigation, statements of the witnesses were recorded by him.
26. PW22 Dr. Rajinder Kumar that on 12.12.2012, seven sealed parcels were received in the FSL Rohini from SHO PS Ranjit Nagar in the present case. Same were opened and examined by him and prepared his biological and serological S.C No.56073/16 State Vs Manawar @ Bihari Page 21 of 46 report Ex.PW22/A and Ex.PW22/B.
27. PW23 SI Khazan Singh deposed that on 13.11.2012, he was posted at P.S. Ranjit Nagar as ASI. On that day, a PCR call was received by him that one labour was lying under unconscious condition. The same was reduced in writing vide DD No.15-A Ex PW23/A. Thereafter, he alongwith Ct Shailender went to House No. 246, Ist Floor, Block No.A Ranjit Nagar. The house was found latched from outside but was under
construction. He went inside the room and found that one person was lying on a cot and was wrapped in a blanket. He found that the person was in unconscious condition. He informed his senior officer and called the crime team. SI Dhan Singh, Incharge crime team alongwith his team came to the spot. The crime team inspected the spot and took photograph of the scene of crime. He made local inquiries and called the landlord of the Flat Sh Suresh Kumar and recorded his statement. He conducted the search of the deceased and an amount of Rs.65/- some coin amounting Rs.11/- and one Rudraksh were recovered . He had taken the same into his possession. One dairy was also recovered from the pocket of the deceased and he had taken that dairy into his possession. He also found two mobile phones ear lead and kept the same in a cloth parcel and it was sealed with the seal of KS and was taken into possession. He had also taken into possession the blood stained blanket from the spot, kept the same in a cloth parcel which was sealed with the seal of KS and the same into possession. He had also taken one piece of the blood stained blanket from the spot, kept the same in a cloth parcel which S.C No.56073/16 State Vs Manawar @ Bihari Page 22 of 46 was sealed with the seal of KS and took the same into possession. From the spot itself one blood stained plastic katta which was found beneath the head of the deceased and this plastic katta was used as a pillow from the spot, he kept the same in a cloth parcel which was sealed with the seal of KS and the same into possession. He also found one quarter of liquor bottle near the bed from the spot, it was kept in a plastic container which was sealed with the seal of KS and the same into my possession. After making inquiries he prepared brief facts vide Ex PW23/A-1. He filled up Form 25.35 (1) (B) and send the dead body to DDU hospital mortuary for preservation.
He further deposed that on 15.03.2012 (correct date- 15.11.2012), he recorded the dead body identification statement of one Ram Sumer Gupta, father of deceased Ex PW23/B. He gave one application to conduct the Post mortem vide Ex PW23/C. The post mortem was conducted on 15.11.2012 and thereafter the dead body was given to Sh Ram Sumer Gupta, father of the deceased. After the PM Ct Shailender gave him two sealed parcel and two sample seals and he had taken the same into his possession.
He deposed that on 18.11.2012, he collected the PM report. He apprised regarding the same to the SHO and thereafter he made his endorsement on DD No.15-A itself Ex PW23/D. He produced the original Tehrir before the Duty Officer for registration of the FIR and after registration of the FIR the further investigation was assigned to Inspector Joginder Singh. He alongwith IO reached at the spot. IO inspected the spot and also inspected the wooden bed and had taken one piece of blood stained ply of the bed from the spot, kept the same in a plastic container which was sealed with the seal of JS S.C No.56073/16 State Vs Manawar @ Bihari Page 23 of 46 and the same was taken into police possession. The seal after use was given to him.
On 18.11.2012, he alongwith SI Kamlesh, HC Anil, HC Tulsi and owner of the house namely Suresh went to Katihar, Bihar in search of accused. They got down at Rly Station Katiyar and from there they went to Labha PP. They made their arrival there and local police official joined the investigation with them. Local police official inquired at their level and accused was found present at his in laws house situated at Dabhole, Distt Katiyar Bihar. Thereafter he alongwith his staff went to Dabhole and one person namely Suresh owner of the house met them and stated that you had done the POP work at his residence. Accused was arrested from his in-laws house situated in Dabhole at the pointing out of Suresh. The name of his father in law was Budhri. SI Kamlesh Kr interrogated him and recorded his disclosure statement.
28. PW26 HC Narender Kumar that on 25.02.13 while posted at PS Ranjeet Nagar as Ct, on the instructions of IO, he took the authority letter from MHC(M) to collect FSL report and went to FSL Rohini and collected FSL report and 07 sealed pullandas and handed over the same to MHC(M).
29. PW27 SI Ranbir that on 14.02.2013 while posted at PS Ranjeet Nagar as SI, on the instructions of IO, he served notice u/s 91 Cr.P.C Ex.PW27/A to Nodal Officer, Aircel to procure documents pertaining to mobile No. 9716154014 from 01.11.2012 to 12.11.2012 and collecting the information, he handed over the same to IO Inspector Joginder Singh.
S.C No.56073/16 State Vs Manawar @ Bihari Page 24 of 46STATEMENT OF ACCUSED.
30. After completion of the prosecution evidence, the statement of accused, under section 313 Cr.P.C., was recorded so as to enable him to personally explain the circumstances appearing in the evidence against him. All the incriminating evidence were put to the accused to which he has denied, as being incorrect and have stated that a false case has been registered against him and he has been falsely implicated in this case. Accused did not lead any defence evidence.
REASONS AND DECISION
31. I have heard the Ld Addl P.P for the State and Ld Counsel for the accused. I have given my thoughtful consideration to the submissions being made by them and also perused the record carefully as well as written submissions filed by accused.
32. Ld Defence Counsel has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that there is not an iota of evidence available on record to connect the accused with the instant case.
S.C No.56073/16 State Vs Manawar @ Bihari Page 25 of 46ARGUMENTS ON BEHALF OF ACCUSED
33. It is argued that there is not a single eye witness to the alleged incident of crime and the entire case has been build up by the prosecution on the basis of circumstantial evidence and as such, it is the settled principle of law that in cases of circumstantial evidence, the entire chain of events should be complete and if there is a single gap in the chain, the accused is entitled to acquittal. It is further argued that in this case, there are many discrepancies in the story of the prosecution and hence, accused is entitled to be given benefit.
34. It is argued that the material witness of the prosecution examined as PW-3 Karam Chand @ Gandhi has deposed that on 12.11.2012 at about 8.00 p.m had visited the house of PW-7 Suresh (place of occurrence) and had noticed some altercation between deceased Mahesh and his labour /accused Bihari as Bihari was demanding his wages from deceased Mahesh and he intervened and pacified them. It is argued that during cross examination, this witness failed to give any plausible explanation as to why he had visited the place of occurrence at 8.00 pm. Therefore, his deposition is not free from doubt.
35. Another contradiction pointed out by the defence is that PW-12 Ct. Shailendra during his cross examination has S.C No.56073/16 State Vs Manawar @ Bihari Page 26 of 46 deposed that room was open when they reached there, whereas PW-23 SI Khazan Singh, with whom PW-12 had accompanied to the place of occurrence, has deposed that house was found latched from outside. It is argued that though both these witnesses had visited the place of occurrence together, however, both have given different versions and as such, this contradiction raises further doubt over the prosecution story.
36. Another argued raised by the defence is that as per prosecution story, one liquor bottle was found at the spot, however, same was not sent to FSL. Even the clothes of accused were not sent to FSL.
37. It is argued that when PW-7 Suresh came to know from PW-4 Gopal that deceased Mahesh was lying on a bed, instead of going there, he asked PW-4 to call PW-3 Karam Chand @ Gandhi which is quite surprising and raises doubt over the prosecution story.
38. It is also argued that the call detail records of the mobile phones recovered from the accused were not obtained by the IO nor the documents regarding the ownership of those mobile phones were obtained.
39. Another argument raised is that prosecution has failed to produce any document to prove that the mobile no. 9716145014 was belonging to deceased Mahesh, which is S.C No.56073/16 State Vs Manawar @ Bihari Page 27 of 46 even contradicted by their own witness PW-1 who has stated that the said no. was issued to one Sirish Thapliyal, who has not been cited as a witness by the prosecution for the reasons best known to it.
40. Another lapse in the prosecution story brought out by the defence is that though as per the prosecution story, the owner of the house Suresh had accompanied police officials to the native place of accused, however, he has not been cited as a witness either to the arrest of the accused, or to the recovery of bag containing clothes worn by the accused at the time of commission of crime or the recovery of mobile phones. During cross examination, PW20 SI Kamlesh Kumar deposed that signature of mother of accused was obtained on the arrest memo, however, arrest memo did not bear the signature of any public witness. It is also argued that PW-24 HC Anil Kumar in his cross examination has stated that three police officials from PP Roshnara had accompanied them to village Labha for arrest of the accused, however, even none of them had been cited as a witness either to the arrest memo or in the recovery memo of articles or mobile phones. Even Ward Panchayat of the said village was present, however, even her signatures are not there on the arrest memo.
41. It is argued that in the absence of any evidence connecting the accused with the alleged crime, it is clear S.C No.56073/16 State Vs Manawar @ Bihari Page 28 of 46 that prosecution has miserably failed to establish its case against the accused.
ARGUMENTS ADVANCED ON BEHALF OF THE STATE
42. While opposing the arguments of the accused persons, Ld Addl PP for the State has argued that all the PWs examined by the prosecution have firmly stood the test of cross examination and have been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs. It is argued by Ld. State Counsel that the instant case is of circumstantial evidence and as per the evidence produced and proved on record, the prosecution has been able to prove its case against the accused.
43. It is argued that the testimonies of PW-3 Karam Chand @Gandhi, PW-4 Gopal, PW-5 Ram Raj and PW-7 Suresh clearly prove the guilt of accused. It is argued that PW-5 Ram Raj who was a carpenter has deposed that he has introduced deceased Mahesh to Suresh for doing POP work in his house. He also deposed that accused was assisting S.C No.56073/16 State Vs Manawar @ Bihari Page 29 of 46 deceased Mahesh in his work. PW-3 Karam Chand @ Gandhi has establish the motive behind the murder as he has deposed that he was a supervisor and had gone to the house of PW-7 Suresh at 8.00 pm where deceased Mahesh and accused were doing POP work and found that some altercation was going on between deceased Mahesh and accused over money. He intervened and left and on the next day, he came to know that deceased Mahesh was murdered. It is further argued that from the testimony of PW-7 it is clear that at around 8.00 pm, deceased Mahesh was lastly seen with accused and thereafter, deceased Mahesh was found dead, hence, applying the last seen theory in this case, it is clear that it was accused who murdered the deceased Mahesh over money dispute.
44. It is further argued that the prosecution case further gets corroborated from the post mortem report Ex.PW19/A as per which the cause of death was due to head injury and further opined vide report Ex.PW19/B that the weapon of offence Ex.P5 could have been used for infliction of injury on the head.
45. It is further argued that the weapon of offence i.e metallic pipe Ex.P5 was recovered at the instance of accused on the basis of disclosure statement. It is the settled principle of law that if a recovery is effected at the instance of accused on the basis of disclosure statement, it S.C No.56073/16 State Vs Manawar @ Bihari Page 30 of 46 is admissible in evidence.
46. The recovery of train ticket on which accused travelled to his native place from Delhi on the date of incident further corroborates and points towards his guilt and a presumption is raised against him that after the commission of murder, the accused fled to his native place.
47. As regards the motive of crime, it is the case of the prosecution that accused and deceased had consumed liquor together and after some time, there was a scuffle between them over money and subsequent thereto, the accused killed the deceased by hitting iron pipe on his head.
48. It is further argued that the present case is a case of last seen theory as well as the case based on circumstantial evidence. Both the last seen theory and the circumstantial evidences proved on record the complete chain and sequence of events and clearly indicate towards the guilt of the accused.
49. I have given my thoughtful consideration to the record and the arguments advanced as well as the case laws relied by Ld. Defence Counsel.
S.C No.56073/16 State Vs Manawar @ Bihari Page 31 of 4650. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
51. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for S.C No.56073/16 State Vs Manawar @ Bihari Page 32 of 46 abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
52. Before adverting to the analysis of evidence which has come on record, it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
53. In the instant case, the accused has been charged with the offence u/s 302 IPC.
54. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused.
55. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be S.C No.56073/16 State Vs Manawar @ Bihari Page 33 of 46 punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
56. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later S.C No.56073/16 State Vs Manawar @ Bihari Page 34 of 46 case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
57. Further pertinent to mention here that in cases like death / murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of S.C No.56073/16 State Vs Manawar @ Bihari Page 35 of 46 the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused."
58. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principles of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused S.C No.56073/16 State Vs Manawar @ Bihari Page 36 of 46 is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that 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.
59. Having considered the evidence on record from every possible angle, this court finds that the evidence, adduced by the prosecution, fall grossly short of the standard of proof, which is insisted in a criminal trial.
60. The case at hand is, based on circumstantial evidence. When a case rests on circumstantial evidence, the circumstances must not only be consistent with the guilt of the accused, but must also be inconsistent with his innocence meaning thereby that every reasonable possibility of innocence of accused must be excluded before the accused is held guilty of an offence on the strength of circumstantial evidence.
61. Further, in a case of circumstantial evidence, it is incumbent upon the court to satisfy itself that (I) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point S.C No.56073/16 State Vs Manawar @ Bihari Page 37 of 46 to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation.
62. Now, I shall proceed to deal with the arguments of defence and determine if the circumstances in this case point towards the guilt of accused or his innocence.
63. In the present case, there is no eye witness to the incident and the entire prosecution case is based on circumstantial evidences. PW-3 Sh. Karamchand, PW-4 Sh Gopal, PW-5 Ramraj Sadhu, PW-7 Suresh which are the important material witness of the prosecution and Ld. State Counsel has relied on their testimonies to establish this case against the accused.
64. I have carefully gone through the testimonies of these witnesses. Though the prosecution has relied heavily on the testimony of PW-3 Karam Chand @ Gandhi to prove the motive as well as the last seen theory in this case. PW-3 in his deposition has stated that he had gone to the house of PW-7 Suresh and found both deceased and accused having some altercation over money and the next date, he learnt that deceased was dead. On the basis of this testimony, Ld. State Counsel has argued that as per the last seen theory and the altercation which took place between them, it has been clearly established the motive behind the murder. However, the contradictions pointed out by defence are equally significant.
S.C No.56073/16 State Vs Manawar @ Bihari Page 38 of 46PW-3 has deposed that nobody called him at the place of occurrence and he himself went to the place of incident at 8.00 pm though usually he used to remain at the place of occurrence from 8.30 am till 5/5.30 pm. He failed to give any reason for his visit at the place of occurrence at 08.00 pm which creates doubt on the point whether he had visited the place of occurrence on the said date or not. Therefore, the motive as projected by the prosecution through the testimony of PW-3 does not appear probable.
65. Other contradiction raised by defence regarding opening of door of the place of occurrence are quite relevant to this case. PW-12 and PW-23 have contradicted each other in their testimonies with regard to this fact. PW-12 deposed that door was open whereas PW-23 deposed that it was latched from outside. It is pertinent to note that PW-3 and PW-4 had gone to the place of occurrence together and PW-3 opened the kundi of the door and called at 100 no. The testimonies of these four witnesses on this point have remained inconsistent and hence, create doubt on the prosecution story.
66. As regards the railway ticket recovered from the accused, this document cannot be considered to be a material piece of evidence as anyone can procure this railway ticket and can be planted as it does not bear the name of the traveller.
67. Ld. State Counsel while relying on the testimony of S.C No.56073/16 State Vs Manawar @ Bihari Page 39 of 46 PW-3 Karam Chand @ Gandhi has argued for conviction of the accused on applying the last seen theory in this case.
68. Therefore, I shall now proceed to discuss the law with regard to the "last seen evidence" as has been laid down by the Hon'ble Supreme Court in a recent Judgment, titled Ganpat Singh Vs. State of Madhya Pradesh, reported as 2017 (4) JCC 2592, where the Hon'ble Supreme Court held as follows in para 10 of the Judgment:
"Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law as follows:
"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
69. Hon'ble Delhi High Court is case titled Deepak Chaddha Vs. State, reported as 2012 (1) JCC 540, has held that deceased and the appellant were last seen S.C No.56073/16 State Vs Manawar @ Bihari Page 40 of 46 together at 07.30 pm when the two left the house of the deceased, and that the deceased was found grievously injured happens to be a public street at around 10.15 pm and this time gap of about 2 hours and 45 minutes does not rule out the possibility of somebody else being the assailant.
70. Again Hon'ble High Court of Delhi in case titled Ravi Kumar @ Sonu Vs. State, reported as 2013 (2) JCC 1394, held that 'where gap of 15 hours was there between last seen evidence and recovery of the dead body and it was held that possibility cannot be ruled out that in the course of the night other persons would have boarded the TSR of the deceased for killing him.
71. Similar were the finding of the Hon'ble High Court of Delhi in the cases reported as 2011 (3) JCC 1532 and 2017 (2) JCC 932.
72. Judging in the light of the said law laid down by the said Superior Courts with regard to last seen evidence, PW- 3 Sh. Karam Chand saw the accused in the company of the deceased last time on 12.11.2012 at 08.00 pm, and as per rukka (the original complaint) vide DD No.15A, Ex.PW-23/A the dead body was found at 01.10 pm on 13.11.2012, i.e. after a gap of 17 hours. In the said circumstances, the possibility of any other person intervening in between, S.C No.56073/16 State Vs Manawar @ Bihari Page 41 of 46 cannot be ruled out and it is difficult to believe the evidence of "last seen together".
73. There is no evidence proved on record by the prosecution to establish that accused was present at the place of occurrence at the time of occurrence.
74. Furthermore, the testimony of PW-3 Karam Chand does not inspire confidence of this court, hence, the last seen theory does not come into play as there is no prosecution witness except PW-3 who had seen both accused and deceased together prior to the date of incident.
75. As regards the argument of Ld. State Counsel that the recovery of weapon of offence made at the instance of accused on the basis of his disclosure statement, hence, same is admissible in evidence and hence, he is proved guilty of committing the murder does not appear probable as the recovery itself becomes doubtful.
76. I find force in the argument of Ld. Defence Counsel that the recovery of the mobile phones, bag and clothes from the possession of accused is doubtful. I have carefully gone through the arrest memo, personal search memo and other seizure documents. It is the case of the prosecution that the police team alongwith PW-7 visited the native place S.C No.56073/16 State Vs Manawar @ Bihari Page 42 of 46 where the mother of accused informed them about the place of his in laws where he was hiding. PW-24 HC Anil Kumar in his cross examination has stated that three police officials from PP Roshnara had accompanied them to village Labha for arrest of the accused and the ward sarpanch of the area also assisted them in locating the place from where accused was arrested, however, it is quite surprising to note that none of them (including PW-7 Suresh who had accompanied the police team from Delhi) had been cited as a witness either in the arrest memo or in the recovery memo of articles or mobile phones recovered from the accused. Hence, the recovery of these articles is under heavy cloud of doubts. Similarly, the recovery of weapon of offence at the instance of accused is also not free from doubt as no independent witness has been made a witness to the said recovery clearly raising a negative presumption against the prosecution that same was planted upon the accused. Furthermore, PW-7 Suresh has deposed that the entire documents of the proceedings were prepared while sitting in the local police station, however, IO has deposed that all the documents were prepared at the spot itself. Therefore, the argument of Ld. State Counsel that the disclosure statement has become admissible does not hold ground in view of the above lapses by the investigating agency which clearly raise serious doubts over the recovery and hence, the admissibility of disclosure statement does not arise in the S.C No.56073/16 State Vs Manawar @ Bihari Page 43 of 46 facts and circumstances.
77. Another major lapse which could have helped the prosecution is the liquor bottle which was seized from the spot. The crime team which visited the spot though seized the liquor bottle, however, did not lift the chance print from it which could have established the presence of deceased with accused if that was so, however, the prosecution failed to take these steps.
78. The IO of the case even did not investigate with regard to the ownership of the mobile phones recovered from the accused nor the call detail record of those mobile phones except mobile no. 9716154014 belonging to deceased Mahesh. Even this fact was contradicted by PW-1 who proved CAF with regard to the aforesaid mobile number as per which the said no. belonged to one Sirish Thapliyal and even no investigation was conducted to ascertain as to who was this person Sirish Thapliyal and how the deceased was using the said mobile number if that was allotted to Sirish Thapliyal.
79. It is settled proposition of law that where there are two views possible one favouring the accused and the other pointing towards the guilt of the accused, the one which favours the accused must be considered.
S.C No.56073/16 State Vs Manawar @ Bihari Page 44 of 46CONCLUSION.
80. This being the position on facts and in law the chain of facts and circumstances and the connecting links stands broken at more than one places. The prosecution has not been able to establish or prove its version by proving circumstantial evidence unerringly pointing out towards the guilt of the accused and ruling out any hypothesis of innocence of the accused. In the judgment reported as Madari @ Dhiraj & Ors. Vs State of Chhatisgarh, 2004(1) C.C. Cases 487 where it has been held that crucially the materials and evidence on record do not bridge the gap between "may be true" and "must be true", so essential for a Court to cross, while finding the guilt of an accused. In sum and substance the prosecution fails to prove its case beyond the pale of reasonable doubt leading to possibilities acting like holes in the pot are created making it difficult to hold the facts together forming a uniform mixture. Resultantly, the accused becomes entitled to benefit of doubt and is accordingly, acquitted of all the charges.
81. In view of the statutory requirement of section 437-A Cr. PC, the accused is directed to furnish a bail bond in the sum of Rs. 15,000/- with one surety of like amount to the satisfaction of the court, for a period of six months, to S.C No.56073/16 State Vs Manawar @ Bihari Page 45 of 46 appear before the appellate court, if so required.
82. File be consigned to record room after due compliance.
Digitally signed by POORAN POORAN CHAND ANNOUNCED IN THE OPEN CHAND Date: 2019.09.25 15:01:42 +0530 COURT ON THIS 24.09.2019 (POORAN CHAND) ADDI. SESSIONS JUDGE-02 (WEST):DELHI S.C No.56073/16 State Vs Manawar @ Bihari Page 46 of 46