Delhi District Court
State vs . 1. Rupinder Kumar, on 21 April, 2017
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IN THE COURT OF SHRI VIVEK KUMAR GULIA
ASJ03 & SPECIAL JUDGE (COMPANIES ACT)
DWARKA DISTRICT COURTS, DELHI.
In the matter of:
State Vs. 1. Rupinder Kumar,
S/o Sh. Narender Kumar,
R/o 10A, Nabha House,
Punjab Estate, Mandi House,
New Delhi.
2. Deepak Kumar,
S/o Sh. Puran Singh,
R/o House No. 186,
Quarter No. 24, Sadar Bazar,
Delhi Cantt, New Delhi.
Registration No. of the Case : 440526/2016.
SC No. : 175/2015.
FIR No. : 25/2009.
PS : Dwarka North.
Under Section : 365/302/201/120B IPC.
Date of Institution : 15.01.2010.
Case Committed to the Court of
Sessions for : 30.01.2010.
Case Received by this Court by way of
Transfer on : 11.09.2015.
Page No. 1 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
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Case Reserved for Judgment on : 01.04.2017.
Judgment Announced on : 21.04.2017.
JUDGMENT
FACTUAL BACKGROUND:
1. The following is a brief account of prosecution case and other relevant facts:
1.1 In this case, FIR was registered on the statement of Ram Kishan (PW4) recorded on 16.10.2009, whereby he mentioned that his elder son Jai Bhagwan left house on 04.10.2009 on his motorcycle bearing registration no.
DL4SBC3254 for his friend's house in Dwarka and when he did not return home till night, his younger son Sri Bhagwan (PW21) called on the mobile phone of Jai Bhagwan, who disclosed that he is with accused persons Deepak Kumar and Rupinder Kumar and is not coming back now. Jai Bhagwan did not return home next day also and thereafter on 07.10.2009, his missing report was got registered vide DD No. 35B. 1.2 During investigation, both the accused persons were arrested on 18.10.2009 and they disclosed that they had Page No. 2 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
3 murdered Jai Bhagwan by throwing him in a canal on Panipat Gohana road, Haryana. Further, one of the mobile phones of Jai Bhagwan was recovered from Abhishek (PW1), who purchased it from accused Deepak Kumar. Further, the motorcycle of Jai Bhagwan and the keys of Indica car bearing registration no. HR557224 (in short "taxi"), which Jai Bhagwan used to drive, were recovered at the instance of both the accused persons. 1.3 However, the dead body of Jai Bhagwan could not be recovered.
2. After culmination of investigation, both the accused persons were chargesheeted and produced before the Court of Ld. Area MM. After complying with the provisions of Section 207 CrPC, the case was committed to the Court of Sessions u/s 209 CrPC.
TRIAL PROCEEDINGS:
3. In light of the above stated facts and proceedings, vide order dated 03.05.2011, Ld. ASJ framed charges under sections 120B/365/302/201 IPC against both the accused persons, to which they pleaded not guilty and claimed trial.
Page No. 3 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
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4. For proving its case, prosecution has produced 22 witnesses.
4.1 PW1, Abhishek, and PW3, Naveen Kalher, deposed that on 11.10.2009, accused Deepak Kumar had sold the mobile phone of make Sony Ericsson to PW1 for Rs. 4,500/.
4.2 PW4, Ram Kishan, and PW21, Sri Bhagwan, are material witnesses. PW4 deposed on the lines of his statement Ex. PW4/G, on the basis of which FIR was registered. Further, he deposed about the arrest of both the accused persons and recoveries made at their instance. PW21 mentioned that on 04.10.2009, his brother Jai Bhagwan had requested him to accompany to Sonepat, but he refused. Then Jai Bhagwan told him that he alongwith his friends Rupinder Kumar and Deepak Kumar would go to Sonepat and when Jai Bhagwan did not return till late night, he called on his mobile phone and then also Jai Bhagwan confirmed that he is with the accused persons and after some time both the mobiles of his brother were switched off. 4.3 PW5, Jagdish, mentioned that he is doctor by profession and knows accused Rupinder Kumar. But he did not support the prosecution case on the aspect that few days before the incident, accused Rupinder Kumar had purchased some intoxicating pills Page No. 4 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
5 from his shop at Samalkha.
4.4 PW7, Nikhlesh Kumar, mentioned that Jai Bhagwan used to drive Tata Indica car bearing registration no. HR557224 belonging to his maternal uncle Chaman Singh and he used to park the said car during night in front of his house and he used to keep the documents of the said car inside the car and used to take away the keys of the said car with him. PW9, Chaman Singh, also deposed on the same lines and apart from that he mentioned that lastly Jai Bhagwan parked the said car as usual in front of house of his sister and handed over the keys to her, but he retained the papers with him, but thereafter he did not report on his duty.
4.5 PW15 HC Ram Nath, PW16 Const. Sushil Kumar, PW17 SI M.Y. Khan, PW20 SI Kashmiri Lal, and PW22 Inspector Arun Verma, deposed about different proceedings relating to investigation.
4.6 Rest of the witnesses were produced to prove different facts i.e. call details record of different mobile phones, ownership of said motorcycle, etc.
5. Statement of both the accused persons was recorded u/s 313 CrPC. When the accused persons were briefed on all the Page No. 5 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
6 incriminating evidence and documents, they denied the allegations and mentioned that they were not with deceased Jai Bhagwan at the time of incident and they have been falsely implicated in this case.
6. The accused persons opted not to lead evidence in their defence.
APPRECIATION OF EVIDENCE:
7. I have heard the State through Sh. Shiv Kumar, ld. Additional PP for State, accused Rupinder Kumar through ld. counsel Sh. S.K. Dayal and accused Deepak Kumar through ld. counsel Sh. Paramvir Singh. Record is also gone through.
8. It is summed up by the ld. Additional PP that there are sufficient circumstantial evidence on record to prove the facts that the accused persons had abducted Jai Bhagwan and after throwing him in canal, they kept the belongings of the deceased and subsequently, one of the mobile phones belonging to the deceased, motorcycle of the deceased and keys of the car of the deceased were recovered at their instance. On the other hand, Page No. 6 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
7 ld. defence counsel argued that no concrete circumstances have been brought on record to show the culpability of both the accused persons and thus, they are liable to be acquitted in this case.
9. In this case, there are following points of determination:
(A) That both the accused persons abducted
deceased Jai Bhagwan;
(B) That both the accused persons murdered Jai
Bhagwan by tying his hands and legs and thereafter, throwing him in canal;
(C) That both the accused persons destroyed the evidence i.e. dead body in order to screen themselves from legal punishment; and (D) That both the accused persons conspired with each other to abduct and murder Jai Bhagwan.
POINT NO. (A): ABDUCTION.
10. It is the prosecution case that both the accused persons had took Jai Bhagwan in their Maruti van car bearing registration no. DL5CC2449 on the pretext of meeting with a Page No. 7 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
8 customer interested in buying taxi and thereafter, secretly and wrongfully confined him in the moving van till his murder. It is pertinent to mention here that instead of Section 365 IPC, charge should have been framed under Section 364 IPC (abduction for murder). To prove the allegations, the prosecution has produced PW4 Ram Kishan and PW21 Sri Bhagwan, who are father and brother of the deceased respectively. Admittedly, there is no direct evidence of abduction. As far as testimony of PW4 is concerned, it is found to be of hearsay in nature qua the fact that the accused persons took Jai Bhagwan in their van. He clearly deposed in his cross examination that his son Sri Bhagwan (PW21) told him in the morning of 05.10.2009 that Jai Bhagwan had informed him on 04.10.2009 at about 10.30 pm on his mobile phone that he is with the accused persons. Further, PW21 deposed that on 04.10.2009, both the accused persons called his brother on his mobile phone to accompany them to Sonepat and thereafter, his brother had requested him to accompany him to Sonepat, but he refused. Thereafter, Jai Bhagwan told him that since he is not going with him, he would go with the accused persons. He also testified that at 11.00 pm, on 04.10.2009, he had given a call to his brother on mobile number 9278159817 from his mobile number 9268348103 and then his brother stated Page No. 8 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
9 that he is going to Sonepat in a vehicle alongwith the accused persons. Apart from testimony of PW21, there is no material on record to show that Jai Bhagwan was with the accused persons on the fateful night. Without going into the issue of reliability of testimony of PW21 on this aspect at this stage, even if it is believed that Jai Bhagwan was with the accused persons, that fact in itself is not sufficient to show that he was abducted by the accused persons. None of the witnesses has said that the accused persons took Jai Bhagwan by force or by any deceitful means. Admittedly, Jai Bhagwan and the accused persons were in the profession of taxi driving and working at the same place and were known to each other very well much prior to the incident. Rather the testimony of PW4 and PW21 clearly suggest Jai Bhagwan had gone with the accused persons out of his own sweet will. Furthermore, there is no evidence on record to show that Jai Bhagwan was wrongfully confined in the said taxi by the accused persons before his alleged murder. In such circumstances, it is concluded that the evidence on record is insufficient to establish charge u/s 364 or 365 IPC.
POINT NO. (B): MURDER.
11. As per prosecution story, the accused persons tied hands Page No. 9 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
10 and legs of Jai Bhagwan after giving him intoxicating/sleeping pills in liquor and thereafter, threw him in canal at Panipat Gohana road. Admittedly, the dead body of the deceased could not be recovered. Though it is settled law that it is not at all necessary for conviction for murder that the corpus delicti be found, however, in absence of it, there must be direct or circumstantial evidence leading to the inescapable conclusion that the victim has died and the accused is the same person, who has committed his murder [refer "Ram Gulam Chaudhary & Others Vs. State of Bihar", (2001) 8 SCC 311]. The entire prosecution case is based on circumstantial evidence. The material witnesses are PW4 and PW21, who have alleged that the accused persons had taken Jai Bhagwan with them in a car on fateful night and after that Jai Bhagwan never returned home and no clue could be gathered about him. From the disclosure statement of the accused persons, the prosecution has built up a story that the accused persons had an evil eye on taxi and motorcycle of Jai Bhagwan and thus, they had hatched a criminal conspiracy to obtain the documents and keys of the said taxi and after murdering Jai Bhagwan, they would sell off the said taxi and the motorcycle and ultimately, the suspicion would Page No. 10 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
11 come on Jai Bhagwan that he had run away with the said taxi.
12. To prove the fact that Jai Bhagwan was with the accused persons on the intervening night of 04/05.10.2009, the prosecution case is largely based on the testimony of PW4 and PW21. PW21 has mentioned that Jai Bhagwan informed him on 04.10.2009 that he would go to Sonepat with the accused persons and when Jai Bhagwan did not return home till late night, he made a call at about 10.30 pm to him and then also he confirmed that he is going to Sonepat in a van with both the accused persons. PW4 has deposed that on next day i.e. 05.10.2009, PW21 had informed him that Jai Bhagwan had gone to Sonepat with the accused persons. It is not disputed that neither PW4 nor PW21 or any other prosecution witness had seen Jai Bhagwan going with the accused persons in the said van at the relevant time. Thus, the testimony of PW4 and PW21 qua the fact that Jai Bhagwan went with the accused persons to Sonepat, is of hearsay nature. But ld. Addl. PP had argued that the information given by Jai Bhagwan, who was murdered by the accused persons, to his brother (PW21) on the fateful night that he is going to Sonepat with the accused persons, falls within the purview of Section 32 (1) of the Indian Evidence Act and thus, Page No. 11 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
12 can be admitted in evidence.
13. In view of this Court, it is fundamental to the provision of Section 32 (1) of the Indian Evidence Act that there must be the death of the maker of the statement and the statement must relate to cause of his death or as to any of the circumstances of the transaction, which resulted in his death, when the cause of that person's death comes into question. In the case in hand, as discussed above, the fact of death has not been established by the prosecution side. In such circumstances, the information given by Jai Bhagwan to his brother (PW21) that he is with the accused persons, cannot be taken into account as an incriminating evidence against the accused persons.
14. Moreover, ld. defence counsel has rightly pointed out that though PW21 has claimed that Jai Bhagwan had informed him on 04.10.2009 itself before leaving his house that he has to go to Sonepat with the accused persons and once he left with them in the van, he had also confirmed this fact when PW21 called on his mobile phone at about 10.30 pm, but it is noteworthy that this fact was not brought to the knowledge of police officials any time prior to 16.10.2009 when PW4 gave his Page No. 12 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
13 statement Ex. PW4/G raising suspicion over the accused persons behind missing of his son Jai Bhagwan. Further, it is noteworthy that prior to 16.10.2009 though the complainant (PW4) had lodged a missing report of his son Jai Bhagwan, which was registered as DD No. 35B Ex. PW22/B, but that report is absolutely silent about any involvement of the accused persons, rather it clearly specifies that the complainant has no suspicion on anyone. The prosecution side has not explained whatsoever as to why the complainant (PW4) or his son (PW21) opted not to disclose it to the police that Jai Bhagwan had gone with the accused persons on the fateful night after which he went missing. Though it may be understood that PW4 and PW21 did not expect any mishappening and the involvement of the accused persons in that while reporting about missing Jai Bhagwan on 07.10.2009, but there seems to be no reason for not divulging the very important information that the accused persons had taken Jai Bhagwan with them in the intervening night of 04/05.10.2009. This omission on the part of PW4 and PW21 gives rise to an inference that they were not aware till lodging of said missing report about the fact that Jai Bhagwan had gone with the accused persons on 04.10.2009.
Page No. 13 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
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15. The prosecution side has also relied on the evidence of call details record of the accused persons and deceased Jai Bhagwan to show that they were together at the relevant time and had gone towards Sonepat. It is mentioned that the mobile phone location of accused persons Rupinder Kumar and Deepak Kumar and of deceased Jai Bhagwan till about 10.15 pm on 04.10.2009 was at Delhi Cantt and the mobile phone location of accused Deepak Kumar at 11.15 pm was at Punjabi Bagh and further, the mobile phone location of deceased Jai Bhagwan was also claimed at Surjeet Nagar (near Punjabi Bagh) at 11.10 pm. On carefully scrutinizing the call details record of mobile number of Jai Bhagwan Ex. PW13/F, it emerges that his mobile phone was used between Surjeet Nagar and Sudershan Park Extension Village Basai Darapur, at relevant time. Though that location was close to Punjabi Bagh, but still it can not be said that accused Deepak and Jai Bhagwan were moving in same car. Moreover, there is no status of mobile phone location of accused Rupinder at that time. Overall, the evidence pertaining to call details record and mobile phone location of the accused persons and Jai Bhagwan is quite insufficient to conclude that all three of them were together and went towards Punjabi Bagh at relevant time. Moreover, there is no evidence on record to indicate that Page No. 14 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
15 Jai Bhagwan and the accused persons had left Delhi on fateful night.
16. It is also the prosecution case that while leaving Delhi, the accused persons had taken petrol at Pitam Pura and further they had purchased liquor at Singhu Border, but no evidence in this regard was placed on record. IO (PW22) mentioned that he did not take statement of any employee of petrol pump as none of them could identify the accused persons. However, there is no explanation on record as to why CCTV footage of the said petrol pump was scrutinized to see weather the accused persons had gone there to take petrol for their van. Furthermore, though alleged, but no evidence was brought on record to show that the accused persons brought nylon rope for tying the hands and legs of Jai Bhagwan. Though IO mentioned that the accused persons disclosed that they purchased nylon rope from Sachdeva Store, but the owner of the said shop could not identify the accused persons and that is why his statement was not recorded. Further, though it was projected by the prosecution side that Jai Bhagwan was made to consume sleeping pills mixed in the liquor and PW5 was produced to establish that the accused Rupinder Kumar had purchased some intoxicating pills from his clinic at Page No. 15 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
16 Samalkha few days before the incident, but he did not support the prosecution case and specifically denied the suggestion that accused Rupinder Kumar had come to his shop for buying said pills. In view of above, it is clear that no independent evidence or incriminating circumstance could be gathered to substantiate that Jai Bhagwan was with the accused persons at the relevant time or that the accused persons did any preparation for committing murder of Jai Bhagwan.
17. Further, it is found that there are material contradictions and improvement in the testimony of most important witnesses i.e. PW4 and PW21. PW4 had improved and testified that on 05.10.2009, he went to PS Dwarka North to lodge a missing report of his son, but no such report was brought on record. Further, he had mentioned that after lodging another missing report on 07.10.2009, he went to Kashmere House on 09.10.2009 to ascertain about Jai Bhagwan from other drivers, who used to ply vehicles with him and then he came to know that accused persons Rupinder Kumar and Deepak Kumar were friends of Jai Bhagwan. On this aspect, PW21 deposed in cross examination that Jai Bhagwan had informed him in the presence of all family members that he would be going to Sonepat with the Page No. 16 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
17 accused persons. Further, he disclosed that when he called his brother Jai Bhagwan at about 11.15 pm, he informed that he is going to Sonepat with the accused persons and would return by 1.30 pm in the night and he had told his father in the morning of 05.10.2009 that his brother had gone to Sonepat with the accused persons and he had accompanied his father to the house of accused Deepak Kumar at Delhi Cantt and to the house of accused Rupinder Kumar at Nabha House to inquire on 05.10.2006. Thus, it is clear that there is no consistency in the testimony of PW4 and PW21 as to when PW4 came to know that his son Jai Bhagwan had gone with the accused persons on 04.10.2009 and as to when they had gone to police station to lodge a report or to the house of the accused persons to make inquiries.
18. It is seen that PW4 further tried to improve his version to create evidence against the accused persons. It is noteworthy that he deposed that he had also inspected the Maruti van seized from accused Rupinder Kumar and on inspecting it from outside, he found that one mobile phone, one empty bottle of liquor and 2 3 plastic glasses were inside it though IO (PW22) had deposed that no other article except mobile phone was recovered from the Page No. 17 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
18 said Maruti van at the instance of accused Rupinder Kumar. Further, on carefully examining the call details record of Jai Bhagwan and Sri Bhagwan Ex. PW13/F and Ex. PW13/C respectively, it emerges that Sri Bhagwan had called Jai Bhagwan ten times on 04.10.2009 and out of which nine times, they talked between 4.01 pm to 7.25 pm. But this fact has not been disclosed by PW4 or PW21 for the reasons best known to them. Moreover, mobile phone location of Sri Bhagwan at the time making last call at 11.10 pm, as per Cell Site IDs with Location Chart Ex. PW13/K, was at Raj Nagar, Palam Colony and not at his residential locality i.e. Delhi Cantt. It means that PW21 has deliberately concealed that he was in constant touch with his brother on 04.10.2009. Further it is found that he tried to mislead this Court by deposing that he had called PW10 to inquire about his brother at about 7.30 pm. Thus, this Court is of the view that it would not be safe to rely on testimony of PW4 and PW21. On this aspect, reference can be have to the decision of Supreme Court of India in the case titled "State of Rajasthan Vs. Rajendra Singh", (2009) 11 SCC 106, wherein it was held that when the important witnesses have made material improvements before the Court in order to make their Page No. 18 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
19 evidence acceptable and they have not told the truth and have suppressed the true manner in which the incident had happened, the Court is justified in not relying on their testimony.
19. As far as recovery of mobile phone of Jai Bhagwan from Abhishek (PW1) at the instance of accused Deepak Kumar is concerned, it is found that testimony of PW1 and his friend Naveen Kalher (PW3), in whose presence accused Deepak Kumar had sold the mobile phone, do not inspire confidence. Both the said witnesses i.e. PW1 and PW3 have stated that on 11.10.2009, when they came from their college and were going to the house of PW3 at Delhi Cantt, accused Deepak Kumar met them and offered them to sell mobile phone of make Sony Ericsson. It may be seen that 11.10.2009 was Sunday and in such circumstances, the prosecution was required to furnish explanation as to why PW1 and PW3 had gone to college on a holiday. On this aspect, it is noteworthy that PW1 has testified that he started using the said mobile phone after inserting SIM of his father, but it has not been made clear why PW1 was traced only after arrest of accused Deepak Kumar. It is clear that no efforts was made to trace the user of the said mobile phone between 07.10.2009, when missing Page No. 19 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
20 report was lodged, and 20.10.2009, when the said mobile phone was seized. Moreover, apart from oral testimony of both these witnesses, there is nothing on record to show that the said mobile phone was given to PW1 by accused Deepak Kumar.
20. As per prosecution case, the motorcycle bearing registration no. DL4SBC3254 of Jai Bhagwan and keys of the taxi, were recovered at the instance of the accused persons from the parking area of DDA Shopping complex, near SBI Bank, Nangal Rai, opposite Janak Puri, DBlock, New Delhi, vide seizure memos Ex. PW17/B and Ex. PW17/C. It is noteworthy that PW22 has clarified that the said place of recovery was an open parking area and it was not a paid parking space. It is not the case of the prosecution that the keys of the said motorcycle were also recovered from the accused persons. In such circumstances, recovery of the motorcycle, which was found parked at a public place accessible to everyone, cannot be attributed to the accused persons. Moreover, the prosecution case is silent about keys of said motorcycle though keys were with the victim or the accused persons when they parked it allegedly before leaving for Sonepat.
Page No. 20 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
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21. As far as recovery of keys of taxi from the said accused persons is concerned, ld. defence counsel has rightly pointed out that the prosecution has not been able to establish that the said keys were pertaining to the said taxi only. On this aspect, IO (PW22) had replied that they did not verify whether the said keys belong to the said taxi. Moreover, the owner of the said taxi i.e. Chaman Singh (PW9) had deposed that for the last time, Jai Bhagwan had parked the said taxi in front of house of his sister and handed over the keys of the same to his sister. Thus, there is material contradiction about possession of keys with Jai Bhagwan on the date he left with the accused persons. Overall, the recovery of the keys does not remain an incriminating circumstance against the accused persons.
22. It is settled position of law that when the case is based on circumstantial evidence, motive for committing the crime by the accused persons assumes greater importance. On this issue, reference can be have to the decision given by the Supreme Court in the case titled as "Tarseem Kumar Vs. The Delhi Administration", AIR 1994 SC 2585. In the case in hand, the motive of the accused persons was to possess the taxi bearing Page No. 21 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
22 registration no. HR557224 and the said motorcycle after committing murder of Jai Bhagwan, then to sell them of and to give an impression that Jai Bhagwan had fled away with the said taxi of PW9 Chaman Singh. However, the circumstances brought on record make no logic for murdering Jai Bhagwan only to take the keys and the documents of the said taxi. It has not been disputed that everyone knew that Jai Bhagwan used to park the said taxi at a specific place i.e. in front of house of sister of PW9 and thus, if the prosecution story is believed, only taking possession of the keys and papers without taxi would not have benefited the accused persons as anyone could have detected that the accused persons tried to remove the said taxi from the specific parking space by using the keys taken by them from missing Jai Bhagwan. Had the accused persons called Jai Bhagwan with his taxi and documents, that would have made some sense as only in that case, the accused persons could have earned money after selling of the said taxi in illegal manner without any suspicion on them. Thus, the motive shown by the prosecution side is not found very convincing to this Court.
23. Moreover, post incident conduct of the accused persons is also to be noticed. It is seen that they did not try to escape or Page No. 22 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
23 hide themselves after the incident. It is difficult to imagine that the accused persons, after committing the murder of Jai Bhagwan especially after knowing that he had informed his family members about his presence with the accused persons on the fateful night telephonically in their presence, would come back at their home and would do the routine activities from the very next day. It has also come on record that before their arrest on 18.10.2009, both the accused persons were called to police station several times and they had cooperated in the investigation.
24. In the decision of "Sharad Biridhichand Sarda Vs. State of Maharashtra", AIR 1984 SC 1622 (1), Supreme Court of India laid down about the conditions required to be fulfilled to establish a case on the basis of circumstantial evidence in following words:
"152. A close analysis of this decision ("Hanumant Vs. State of Madhya Pradesh", AIR 1952 SC 343) would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' Page No. 23 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
24 established. ... ... ...
(ii) 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;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
25. In light of aforesaid principles, if the present case is examined, it emerges that the prosecution has not been able to establish on record any strong incriminating circumstance against the accused persons and the chain of evidence was found with missing links on material aspects at several places. It is also settled position that the suspicion howsoever strong cannot take place of proof and since the prosecution has not been able to prove the necessary chain of circumstances pointing towards the guilt of the accused persons for the murder of Jai Bhagwan, the benefit of doubt is bound to be given to the accused persons.
Page No. 24 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.
25 POINT NO. (C) AND (D): DESTRUCTION OF EVIDENCE AND CONSPIRACY.
26. Since it could not be proved on record that Jai Bhagwan was murdered, no question of destruction of evidence by disposing of dead body arises. Moreover, there is no incriminating material on record that the accused persons conspired for abduction and murder of Jai Bhagwan. Like main charges, the charge of criminal conspiracy also fails.
CONCLUSION:
27. For the reasons recorded above, this Court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt in respect of any charge and accordingly, both the accused persons are pronounced not guilty in respect of all offences, they are charged with.
Announced in the open Court on 21st day of April 2017.
(total 25 pages) (VIVEK KUMAR GULIA) ASJ03 & Special Judge (Companies Act) Dwarka Courts (SW), New Delhi.
Page No. 25 of 25. State Vs. Rupinder Kumar & Another; FIR No. 25/09 of PS Dwarka North.