Delhi District Court
Digitally Signed By Naveen Gupta vs . on 3 March, 2021
IN THE COURT OF NAVEEN GUPTA
ADDITIONAL SESSIONS JUDGE-05, (SHAHDARA DISTRICT)
KARKARDOOMA COURT, DELHI
SC No. 378/17
FIR No. 325/13
PS Seemapuri
U/S 302/394/397/34 IPC
In the matter of:
State
vs.
1. Vishal
S/o Kali Charan
R/o H. No. 8/3, Vill- Tahirpur Sarai, Delhi.
2. Rahul
S/o Vijay Singh
R/o H. No. 62, Vill-Tahirpur Sarai, Delhi.
3. Hitesh Chadha
S/o Ravi Chadha
R/o N-14/B-3, Dilshad Garden, Delhi. ..... Accused
Date of Institution: 05.10.2013
Date of reserving judgment: 16.02.2021
Date of judgment: 03.03.2021
JUDGMENT
1. Criminal law was set into motion by HC Rajender (PW-13), when on 30.06.2013 at around 11:40 pm, he was returning to his house and reached near Pocket-R, opposite Gurudwara, Dilshad Garden, Delhi.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 1 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:46:45 +05'30' He saw a person lying by the side of patri (footpath). A cycle was also lying on his body. He (PW-13) made a call to the police at 100 number. The said information was recorded vide PCR form Ex. PW- 5/A. PCR van arrived at the spot with ASI Narender (PW-29) and Ct. Vikas (PW-19). They took the said injured to GTB hospital. The injured was examined vide his MLC Ex. PW-21/A and he was declared brought dead. In the meanwhile, on receipt of DD No. 34-A regarding lying of one injured near Gurudwara, SI Omender (PW-25), Ct. Asif Ali (PW-8) and Ct. Pradeep (PW-7) reached at the spot. Subsequently, Insp. Lekh Singh (PW-26) and other staff also reached at the spot. PW-26 alongwith other police officials went to the hospital and came to know that injured had been declared dead by concerned doctor. Thereafter, present FIR was registered and investigation of the case was marked to PW-26. The crime team consisting of Insp. Ravi Kumar (PW-16), Ct. Zile Singh (PW-15) and ASI Rajender also visited the spot and prepared a report Ex. PW-16/A.
2. During investigation, PW-26/ Investigating Officer (for short 'IO') lifted blood stained soil, earth control and some part of soil with blood and seized the same vide memo Ex. PW-7/B. The dead body of deceased was identified as of Ramesh Chand Saini (hereinafter referred as 'deceased'), by his brothers Ghanshyam Saini (PW-1) and Subhash Chand Saini (PW-2). Post-mortem of the deceased was conducted vide report Ex. PW-23/A, wherein it was inter-alia observed about external ante-mortem injuries as 'incised cut throat wound present over anterior aspect of neck of size 14 x 0.2 x 1 cm' and cause of death as 'haemorrhagic shock as a result of ante-mortem SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 2 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:47:04 +05'30' injury to neck produced by sharp edged weapon. Injury no.1 is sufficient to cause death in ordinary course of nature'.
3. On 07.07.2013, PW-26/IO received a secret information that the accused persons involved in the present case would come in R- Block on a motorcycle bearing no. DL14SC2063. On receipt of the said information, PW-26 alongwith other police officials namely SI Omender (PW-25), SI Manish (PW-18), HC Mursalin Khan (PW-22) and HC Rajender (PW-13), put barricades near R-Block and started checking the vehicles. After some time, three persons came there on motorcycle and were apprehended by the police officials. They revealed their names as Vishal, Rahul and Hitesh (hereinafter as 'accused persons' or 'A-1', 'A-2' and 'A-3' respectively). Thereafter, accused persons were interrogated and arrested. Their disclosure statements were recorded to the effect that on 30.06.2013, at about 11:00 pm, they were riding on the motorcycle of A-1 and saw a person on bicycle. A-1, who was driving the motorcycle, hit in the bicycle, due to which the said person (deceased) fell down. A-2 took out an ustara (knife) from his pocket and cut the strip of the bag carried by the deceased on his shoulder. A-3 caught hold of the deceased and A-1 searched his pockets. The deceased resisted, to which A-1 asked A-2 to cut his throat. A-2 cut the throat of deceased with the ustara. In the meanwhile, as A-3 was holding the deceased, he got hurt with ustara. The deceased fell down in pain. They (accused persons) took out mobile phone and Rs.200/- from the pocket of deceased. Thereafter, they fled away from the spot and hid ustara in a park. A-1 and A-3 kept Rs.100/- each with them and A-2 kept the mobile phone of SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 3 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:47:13 +05'30' deceased. Subsequently, A-2 got a SIM issued from a shop and operated the same using the mobile handset of deceased. However, the said mobile handset of the deceased got lost from him (A-2).
4. Pursuant to the disclosure, the ustara which had been allegedly used for the commission of present offence, was recovered from the bushes behind Hansraj School and the same was seized vide memo Ex. PW- 13/K. Subsequently, A-3, A-2 and A-1 got recovered the clothes worn by them at the time of commission of offence and the same were seized vide memos Ex. PW-13/M, Ex. PW-13/N and Ex. PW-13/O respectively. A-2/Rahul led the Investigating Officer to shop situated at Kalander Colony, from where he had purchased a SIM and operated the same using the mobile handset, allegedly robbed from the deceased. The owner of shop Mohd. Haseen (PW-4) produced photocopy of register in which he recorded the fact of issuance of the SIM in favour of A-2, which was seized vide memo Ex. PW-4/A.
5. On 17.07.2013, brother of deceased Ghanshyam (PW-1) produced a box of mobile handset to the IO, which was seized vide memo Ex. PW-1/C. IO, sent the exhibits to FSL and L. Babyto Devi (PW-28) prepared a report. After conclusion of the investigation, challan was filed against the accused persons for trying them for commission of offence punishable under Section 302/394/397/34 of the Indian Penal Code (for short 'IPC').
6. After compliance of Section 207 Cr.P.C., the present case was committed to the Sessions Court.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 4 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:47:25 +05'30'
7. On 10.12.2013, charge was framed against accused persons under Section 302/34 IPC and Section 394/34 IPC read with Section 397/34 IPC.
8. In support of its case, the prosecution examined 32 witnesses.
PW-1 is Ghanshyam Saini, brother of deceased. He identified the dead body of his brother as Ex. PW-1/A and received the dead body vide memo Ex. PW-1/B. He stated that on 17.07.2013, he handed over a box of the mobile phone model no. Nokia 1280 used by his deceased brother, which was seized vide memo Ex. PW-1/C. He identified the said box produced during his examination as Ex. P-1.
9. PW-2 is Subhash Saini, brother of deceased. He identified the dead body of his brother as Ex. PW-2/A. He stated that he had procured the box of mobile phone from the village and from the said box, he told the number of SIM to the police. Deceased was using mobile phone bearing no. 9899429009 at the time of incident and the same had been got issued on his (PW-2) ID.
10. PW-3 is Surender Saini, brother-in-law of deceased. He, too, identified the dead body of deceased.
11. PW-4 is Mohd. Haseen. He stated that he was working as Salesman in the shop owned by Sh. Bhabuk Arora, situated at Pocket-I, Dilshad Garden. On 05.07.2013, a boy came to his shop for purchase of a SIM. He (PW-4) obtained voter ID photocopy and one passport size photograph from the said boy named Rahul. He was issued SIM no.9560585879. He (PW-4) made entry of the said connection in his visitor register Ex. PW-4/A. SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 5 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:47:36 +05'30'
12. PW-5 is Ct. Bijender Singh. He recorded the call made at 100 number. He tendered PCR form to this effect as Ex. PW5-A.
13. PW-6 is Sangeeta/wife of the deceased. She deposed that on 30.06.2013 at about 08:30 am, her husband left the house by saying that he was going to office to attend some urgent meeting and he would return at about 01:00 - 02:00 pm. Her husband did not return back to the house till late night hours. She waited for him till 11:30 pm. When she made a call on the mobile phone of her husband, some other person attended the phone. Thereafter, the phone was disconnected. She again called, but the phone was switched off. On the next day, she came to know that her husband had been murdered by someone. She further deposed that her husband was carrying a mobile phone of Nokia and Rs.400/- in cash. Her husband had gone on bicycle from the house. She identified the bicycle as Ex. P-2.
14. PW-7 is Ct. Pradeep Kumar, who accompanied with SI Omender (PW-
25) and reached at the spot after receipt of DD No. 34-A. He stated that personal search articles of deceased i.e. Rs.50/- currency note with blood stained marks, one I-Card of Ramesh Chand and one black colour bag containing some documents had been handed over to the IO by the Duty Constable in the hospital. The said articles were seized vide memo Ex. PW-7/A. He stated that the earth control sample, blood stained earth control and blood samples were seized from the spot by the IO vide memo Ex. PW-7/B and cycle was seized vide memo Ex. PW-7/C. SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 6 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:47:46 +05'30'
15. PW-8 is Ct. Asif, who had also accompanied with SI Omender (PW-
25). He submitted on the similar lines as deposed by PW-7.
16. PW-9 is Ct. Dinesh Kumar. He submitted that on 05.09.2013, he brought two sealed pulandas [containing clothes of deceased and blood on gauze] and one sample seal from GTB hospital and deposited the same in the malkhana.
17. PW-10 is Ct. Pradeep Kumar. He deposed that on 07.07.2013, he took accused Hitesh to GTB hospital for taking his blood sample. The doctor took the blood sample of accused and handed over the same to him. He (PW-10) gave the same to IO, who seized it vide memo PW- 10/A.
18. PW-11 is HC Satyaveer Singh/MHC(M). He tendered the relevant entries in register no.19 in respect of deposit of pulandas and case properties on different dates as Ex. PW-11/A to Ex. PW-11/E.
19. PW-12 (wrongly mentioned as PW-13) is ASI Vijay Pal Singh/Duty Officer. He tendered FIR as Ex. PW-13/A.
20. PW-13 is HC Rajender. He submitted that on 30.06.2013 at around 11:40 pm, after having seen a person lying by the side of patri, he made a call on 100 number. A PCR van came at the spot and shifted the said person to hospital. He further deposed about steps taken by the Investigating Officer during investigation conducted into the present case. He tendered arrest memos of the accused persons as Ex. PW-13/A to Ex. PW-13/C, personal search memo as Ex. PW-13/D to Ex. PW-13/F, seizure memo of motorcycle as Ex. PW-13/F-1, SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 7 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:48:06 +05'30' disclosure statements of the accused persons as Ex. PW-13/G to Ex. PW-13/I, sketch of ustara as Ex. PW-13/J, seizure memo of ustara as Ex. PW-13/K, pointing out memo of place of occurrence prepared at the instance of the accused persons as Ex. PW-13/L, seizure memo of clothes of A-3 as Ex. PW-13/M, of A-2 as Ex. PW-13/N and of A-1 as Ex. PW-13/O. He identified the ustara as Ex. P-2, clothes of A-3 as Ex. P-3, of A-2 as Ex. P-4 and of A-1 as Ex. P-5.
21. PW-14 is R. K. Singh, Nodal Officer, Bharti Airtel Limited. He produced summoned record of mobile no.9560585879, allotted to one Rahul S/o Vijay Kumar. He tendered Customer Application Form as Ex. PW-14/A. He stated that at the time of issuance of SIM card, the customer had submitted photocopy of driving license. He tendered Call Detail Record (CDR) of the aforesaid mobile number as Ex. PW- 14/B and Cell ID Chart of the aforesaid call details as Ex. PW-14/C.
22. PW-15 is HC Zile Singh. He stated that on 01.07.2013, as part of Mobile Crime Team, he alongwith SI Ravi Kumar and ASI Rajender reached at the spot. He clicked 12 photographs of the scene of crime, which were tendered as Ex. PW-15/P-1 to P-12 and negatives of the same as Ex. PW-15/P-13 to P-24.
23. PW-16 is Insp. Ravi Kumar. He submitted on the similar lines as stated by PW-15. He deposed that he inspected the spot and prepared crime team report Ex. PW-16A.
24. PW-17 is Israr Babu, Alternate Nodal Officer, Vodafone Mobile Services Limited. He tendered CAF of mobile phone number 9899429009, allotted in the name of Subhash Chand [PW-2], as Ex. SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 8 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:48:25 +05'30' PW-17/A and photocopy of his voter ID card as Ex. PW-17/B. He further tendered CDR of the abovesaid mobile phone as Ex. PW-17/C.
25. PW-18 is SI Manish Kumar. He deposed about steps taken by the Investigating Officer during investigation conducted into the present case on 07.07.2013. He submitted almost on the similar lines as deposed by PW-13 regarding investigation conducted on 07.07.2013.
26. PW-19 is Ct. Vikas Kumar. He submitted that on 30.06.2013, he was posted in PCR and was on duty with HC Narender and driver. At about 11:25 pm, they received an information that one person was lying in injured condition and thereafter, they reached at the spot. They took the said person to GTB hospital.
27. PW-20 is Dr. Parmeshwar Ram. He examined the accused persons on 07.07.2013 and prepared MLCs as Ex. PW-20/A to 20/C.
28. PW-21 is Dr. Prashant, Medical Officer. He tendered the MLC of deceased prepared on 30.06.2013 as Ex. PW-21/A.
29. PW-22 is HC Mursalin Khan. He too deposed about steps taken by the Investigating Officer during investigation conducted into the present case on 07.07.2013. He submitted almost on the similar lines as deposed by PW-13 regarding investigation conducted on 07.07.2013.
30. PW-23 is Dr. Neha Gupta. She tendered post-mortem report of the deceased as Ex. PW-23/A.
31. PW-24 is Insp. Mukesh Jain. He tendered scaled site plan as Ex. PW- 24/A. SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 9 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:48:37 +05'30'
32. PW-25 is SI Omender. He submitted about the initial investigation conducted by him and further investigation conducted by Insp. Lekh Singh (PW-26). He tendered tehrir as Ex. PW-25/A. He identified the bag of deceased having one cut strip and articles kept in it as Ex. PW- 25/Art-1 and Art-2 and currency note of Rs.50/- and ID Card of deceased as Ex. PW-25/Art-3 and Art-4 respectively.
33. PW-26 is Insp. Lekh Singh. He submitted about the investigation conducted by him into the present case. He tendered the site plan as Ex. PW-26/A.
34. PW-27 is SI Monu Chauhan. He had prepared supplementary chargesheet containing FSL cum DNA report and filed the same in the Court.
35. PW-28 is Ms. L. Babyto Devi. She tendered FSL report as Ex. PW- 28/A.
36. PW-29 is ASI Narender. He was on duty in PCR van on 30.06.2013. He submitted on the similar lines as deposed by PW-19.
37. PW-30 is Ct. Kalu Ram. He stated that on 04.09.2017, on instruction of the IO, he handed over a sealed pulanda [containing knife] to Dr. Neha Gupta (PW-23) alongwith an application [for giving subsequent opinion] and copy of PM report.
38. PW-31 is Insp. Arun Kumar Chaudhary. He stated that on 04.09.2017, he sent case property for obtaining subsequent forensic opinion to GTB and Hindu Rao hospital. He collected subsequent opinion given SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 10 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:48:47 +05'30' by Dr. Neha Gupta. He filed supplementary chargsheet to this effect in the Court.
39. PW-32 is HC Rohtash/MHC(M). He tendered relevant entries in the register no.19, in respect of case properties of the present case, made after 17.08.2017.
40. After conclusion of the prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., wherein the accused claimed themselves innocent and stated that they had been falsely implicated in this case. A-1 stated that he was lifted from his house on 04.07.2013 alongwith his motorcycle, which was in the name of his mother. The clothes which the IO had shown did not belong to him. Nothing was recovered from him or at his instance. Neither he nor co- accused made any disclosure statement, nor they had pointed out any place. Their signatures were obtained under compulsion and the memos proved on record were fabricated. A-2 stated on similar lines as stated by A-1. He has further stated that he had never been taken to any shop [of PW-4]. A-3 has stated that he was lifted from his house on 05.07.2013. He further submitted on the similar lines as stated by A-1.
41. Accused Hitesh examined one witness in his defence. DW-1 is Ankita Chadha/sister of A-3. She stated that on 30.06.2013, A-3 was at home for the whole day alongwith her and other family members. He did not go outside on that day. On 05.07.2013, police officials came at their residence and stated that they wanted to inquire something regarding a SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 11 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:48:59 +05'30' case from A-3 and they took him to PS Seemapuri. Later on, they falsely implicated him in the present case.
42. Arguments have been heard from Ld. Addl. PP for the State and Ld. respective counsels for the accused persons. I have perused the record and gone through the written arguments furnished by Ld. counsel for accused Rahul and Hitesh.
43. Ld. Addl. PP for the State has argued that the prosecution has proved that accused Hitesh had got injured during the commission of the impugned robbery and the same was established through the injuries recorded in his MLC Ex. PW-20/C. Further, all the accused persons had got recovered the ustara, which was used as weapon of offence. Dr. Neha Gupta has opined that injuries caused to the deceased were possible by given weapon for examination. Furthermore, the testimonies of PW-4 and PW-14 establish that the accused Rahul had got a SIM issued and operated the same using mobile handset of deceased, which had been robbed by accused persons. The accused Rahul has failed to explain as to how he had come into possession of mobile handset of deceased soon after the date of impugned incident. Thus, the prosecution has proved the chain of circumstances leading to the proof of guilt of the accused persons.
44. Ld. counsel for accused Vishal has argued that the prosecution could not prove even a single circumstance connecting A-1 with commission of alleged offence.
45. Ld. counsel for accused Rahul and Hitesh has argued that first of all, the arrest of accused persons is doubtful. The prosecution did not SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 12 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:49:10 +05'30' produce departure or arrival DD entry of the raiding party, which has allegedly intercepted the motorcycle of the accused persons and conducted investigation pursuant to which the accused persons had allegedly made disclosures and got the weapon of offence recovered. Further, there is contradiction in the testimonies of prosecution witnesses in respect of receipt of secret information with regard to its manner and place. Ld. counsel has further argued that even otherwise, joint recovery of blood stained ustara is not admissible. Further, the prosecution could not connect blood stained clothes of accused persons and weapon of offence i.e. ustara with the impugned offence. Further, the prosecution did not prove that the injuries as shown in the MLC of A-3, were received by him during the commission of alleged offence. Further, there are material variations in the testimonies of PW-1/brother of deceased, PW-2/brother of deceased, PW-4/employee of the shop, PW-6/wife of deceased and PW-14/Nodal Officer, Airtel Limited, through which the prosecution has tried to show that A-2 had operated the SIM got issued by him using the mobile handset of deceased. Furthermore, there is variation in the IMEI number of mobile handset of deceased viz a viz IMEI number of the handset allegedly used by A-2 for the SIM of Airtel. Further, the prosecution has failed to prove motive of the accused persons for commission of the alleged offence.
46. Now, the Court proceeds to examine the testimonies of prosecution witnesses to adjudicate upon the culpability of the accused persons. From the testimony of PW-13/HC Rajender that he saw a person lying on the footpath, of PW-19/Ct. Vikas and PW-29/ASI Narender, who SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 13 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:49:21 +05'30' took the deceased to the hospital, of PW-21/Dr. Prashant, who tendered MLC of deceased Ex. PW-21/A containing the observation that the deceased was brought dead and of PW-23/Dr. Neha Gupta, who tendered the post-mortem report Ex. PW-23/A, wherein the cause of death has been inter-alia mentioned as 'haemorrhagic shock as a result of ante-mortem injury to neck produced by sharp edged weapon', it stands proved that the deceased had been killed by someone.
47. The prosecution has projected to connect the accused persons with commission of the alleged offence through following circumstances. The accused persons got recovered the weapon of offence. A-3 got injured during the commission of offence. A-2 had used the mobile handset robbed from the deceased soon after the alleged offence.
48. Departure or arrival DD entry of raiding party The accused persons had been allegedly arrested on 07.07.2013 pursuant to a secret information. Ld. counsel for the accused has argued that PW-26 has stated during his cross examination conducted on 27.07.2017 that he had lodged DD entry for departure of raiding team on 07.07.2013. He admitted the suggestion that he had not filed the copy of the said DD entry. He further deposed during his cross examination conducted on 06.05.2016 that driver of gypsy was Ct. Richpal and he used to maintain log book of gypsy. He (PW-26) did not read the log book, but he can produce the same. Ld. Counsel for the accused has further argued that cross-examination of PW-26 had been deferred, but he did not produce the log book on next date of his SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 14 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:49:34 +05'30' cross-examination. Thus, adverse inference should be drawn against the prosecution.
49. So far as departure entry of raiding team is concerned, effect of non- production of DD entry can be made out after appreciation of testimony of members of raiding party on other material particulars. Further, PW-26 has stated before the Court on 27.07.2017 that he could produce the log book on the next date. But, the accused persons did not seek any direction from the Court to PW-26 to produce the log book of gypsy through which the members of raiding team went to the spot of arrest of the accused persons. Thus, it cannot be said that PW- 26 had deliberately or for reasons known to him, not produced the log book.
50. Secret information and consequent raiding Ld. counsel for the accused persons has argued that PW-22 deposed in his examination-in-chief that he alongwith PW-13, PW-18, PW-26, Ct. Pradeep, Ct. Asif and driver/operator were present at Pummi Restaurant, where one secret informer met the IO, who told him that three suspected persons were involved in the snatching incidents those days frequently and that they might be the offenders of the present case. Ld. Counsel has further argued that PW-13 and PW-18 did not say anything on this aspect, of sharing of secret information by IO, during their entire deposition. However, PW-26 deposed that he received secret information that accused persons involved in the present case would come on motorcycle in R-Block and would go towards Suraksha Nurshing Home. He put the barricades near R-
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 15 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:49:50 +05'30' Block. Ld. Counsel has further argued that PW-26 was completely silent about the aspect that he shared the secret information with any particular police official. Further, PW-26, during his cross- examination conducted on 27.07.2017 stated that he had not gone to Pummi Sweets on 07.07.2013, when he went to apprehend the accused persons.
51. Ld. counsel for the accused has further pointed out that PW-13 deposed during his examination-in-chief that they reached Pummi Sweets at about 11:00 am and secret informer met there to PW-26 and informed him about the involvement of the accused persons. He (PW-
13) stated during his cross-examination conducted on 30.10.2014 that distance between the jhuggi of E-44 and Pummi Sweets is about 750 meters.
52. Perusal of testimonies of police officials who were part of the raiding party shows that PW-13 claimed that on 07.07.2013 at about 10:10 am, they searched the accused persons in the jhuggis of E-44. Thereafter, at about 11:00 am, police team reached Pummi Sweet. Informer met SHO and shared the secret information. Thereafter, police team started checking vehicles in Pocket-R. PW-18, in his examination-in-chief, did not mention anything about search of the accused persons in the jhuggis of E-44. During his cross-examination, he stated that they did not go in any specific jhuggi of E-44. They did not search any jhuggi. PW-22, in his examination-in-chief, stated that the raiding party reached E-44 jhuggi at about 10:15 am. IO made inquiries there. Thereafter, they reached near Pummi Sweet. There one SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 16 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:50:01 +05'30' secret informer met the IO. But, surprisingly, PW-26/Investigating Officer, in his examination-in-chief, did not state anything regarding the visit of raiding party to jhuggis of E-44 and even the Pummi Sweet on 07.07.2013. He has deposed that on 07.07.2013, he received secret information that the accused persons involved in the present case would come in R-block. On the said information, he put the barricades near R-block with the help of other staff and started checking the vehicles. However, during his cross-examination conducted on 06.05.2016, PW-26 stated that on 07.07.2013, he came to know first time about the accused persons involved in the present case by secret informer. Secret informer met him at outside of the jhuggis at around 10:30 am. He further stated that the distance between the place of receipt of secret information and jhuggis at E-44 is about 300-350 meters.
53. The abovementioned versions of the police officials show that there is a contradiction in the testimonies of prosecution witnesses on the aspect as to where the secret information in respect of involvement of accused persons in the present case was shared by the informer with PW-26. There is further contradiction as to the sequencing of search having been conducted by the raiding party after receipt of secret information or even prior thereto. If the secret information had been received near Pummi Sweets, then there would not have been any reason for search of the accused persons in the area of jhuggi E-44, prior to reaching at Pummi Sweets.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 17 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:50:13 +05'30'
54. Further, PW-26, during his cross-examination conducted on 06.05.2016, has voluntarily stated that he shared the secret information with other members of raiding party. Thus, the argument of Ld. counsel for accused that IO did not speak even a single word that he shared the secret information does not hold water.
55. Contradiction in the case of prosecution in respect of members of raiding party Ld. counsel for the accused has argued that prosecution has projected that the accused persons were apprehended by members of raiding party while they were riding motorcycle bearing no. DL14SC2063. PW-18 deposed that he could not tell the name of all the members of raiding party on 07.07.2013. PW-22 has deposed during his examination-in-chief that Ct. Pradeep and Ct. Asif were also members of raiding party on 07.07.2013. Ld. counsel has further argued that PW-26 has deposed during his examination-in-chief that raiding party was divided in three parts, but he could not tell the name of the members as to where they took the positions.
56. In his examination-in-chief, PW-26/Investigating Officer also did not mention the names of members of raiding party constituted on 07.07.2013 pursuant to the receipt of secret information. He also did not explain as to in which manner the members of raiding party were divided in three parts. Further, in his cross-examination conducted on 06.05.2016, PW-26 stated that barricades were brought by HC Murslin, HC Rajender, Ct. Pradeep and Ct. Asif. PW-22 has deposed in his examination-in-chief that he alongwith PW-13, PW-18, PW-26, SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 18 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:50:25 +05'30' Ct. Pradeep, Ct. Asif and driver/operator were present at Pummi Restaurant, where one secret informer met the IO. Surprisingly, as per testimonies of Ct. Pradeep (PW-7) and Ct. Asif Ali (PW-8), they did not claim to be part of raiding party on 07.07.2013, thus the testimony of PW-22 and PW-26 on this aspect do not inspire confidence. This creates a doubt on the case of prosecution in respect of members of raiding party.
57. Scribing the disclosure statements of accused persons Ld. counsel for accused persons has argued that there is contradiction in the testimonies of prosecution witnesses as to who had scribed the disclosure statements of accused persons. PW-13 has deposed during his cross-examination that IO recorded the disclosure statement of accused Hitesh at first, but he could not tell the time. Further, he could not tell who wrote the disclosure statement of accused Ex. PW-13/G. He further deposed that he could not tell who wrote disclosure statement of accused Rahul Ex. PW-13/I. Ld. Counsel for the accused has further pointed out that PW-18 deposed during his cross- examination that the documents prepared on 07.07.2013 are in the handwriting of himself, SHO/IO and HC Mursalin. Further, he (PW-
18) could not tell the name of the documents specifically in whose handwriting, the same were written at the time of arrest of the accused persons. Furthermore, he (PW-18) deposed that he do not remember as to who had written the disclosure statement of accused Hitesh. PW-22 has stated that arrest memo and personal search memo were prepared in his handwriting and disclosure statement was prepared in the handwriting of SI Manish Kumar. On other hand, PW-26 has deposed SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 19 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:50:38 +05'30' that disclosure statements of the accused persons were recorded by his subordinate HC Mursalin and SI Manish. Disclosure statements of accused Hitesh and Vishal were in the handwriting of HC Mursalin and disclosure statement of accused Rahul is in the handwriting of SI Manish.
58. It is worth noting that it is very difficult for any police official who is engaged in several investigations during his working to remember each and every minute detail of the investigation of which he is part. It is pertinent to note that PW-18 and PW-22 were not confronted with the disclosure statements Ex. PW-13/G to Ex. PW-13/I of the accused persons to get explanation as to who had scribed the same and whether the disclosure statements of accused persons were in their handwriting. Further, perusal of disclosure statements shows that the disclosure statements of accused Hitesh and Vishal appear to be written by the same person and disclosure statement of accused Rahul was written by a different person. Thus, this observation gives credibility to the version of PW-26 to the effect that disclosure statement of accused Hitesh and Vishal was written by same official and of accused Rahul by other police official. In these circumstances, no doubt stands created on the case of prosecution on this aspect.
59. Recovery of weapon of offence The prosecution witnesses, PW-26, PW-13, PW-18 and PW-22, have claimed that on 07.07.2013, pursuant to receipt of secret information, PW-26 alongwith other police officials started checking the vehicles and apprehended the accused persons, who were riding on a SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 20 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:50:50 +05'30' motorcycle. It is case of prosecution that pursuant to their disclosure statements, the accused persons led the raiding party to the spot of recovery of ustara, used in the commission of alleged offence. The ustara was seized vide memo Ex. PW-13/K. The memo has been prepared by IO/PW-26 and the same was witnessed by PW-13, PW-18 and PW-22.
60. Ld. counsel for the accused persons has argued that PW-13 deposed that ustara was recovered from the bushes of Deer park. He, during his cross-examination conducted on 25.09.2019, stated that when they entered into the said park, the accused was found sitting under the bushes on southern side. He further deposed that distance between the Deer park and Hansraj School was about 200 meters. Further, PW-22 deposed that the accused were taken to Deer park and they got recovered an ustara under the bushes at the back side wall of Hansraj Public School and ustara was taken out after digging out a small pit.
61. It is pertinent to note that the abovesaid version of PW-13 is not in the direction of case of prosecution in respect of spot and manner of recovery of weapon of offence. Similarly, version of PW-22 is also not in the direction of case of prosecution in respect of manner of recovery of weapon of offence, as the seizure memo Ex. PW-13/K does not contain that ustara was taken out after digging out a small pit.
62. Ld. counsel for the accused has further argued that PW-18 has stated that place of recovery of ustara was a public place and was accessible to every person. PW-26, during his cross-examination conducted on 27.07.2017, stated that the place of recovery in Deer park was SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 21 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:51:02 +05'30' adjacent to the back side of Hansraj School, which was deserted at that point of time. However, the public persons were present at some distance in the park.
63. From the testimonies of prosecution witnesses, it is clear that there was presence of public persons in the park at the time of recovery of weapon of offence i.e. ustara. But, the Investigating Officer did not join any pubic person in the recovery of weapon of offence. This circumstance coupled with the observation of this Court in respect of contradiction regarding place of receipt of secret information and sequencing of visit of raiding party after such receipt raises doubt upon the case of prosecution regarding recovery of weapon of offence.
64. Joint recovery of weapon of offence Even if, for the sake of arguments, it is considered that non-joining of public person is not fatal to the case of prosecution. It is worth noting that the seizure memo Ex. PW-13/K has been signed by all the accused persons. It is case of the prosecution that the weapon of offence had been recovered pursuant to the disclosure statements of accused persons. The Hon'ble Delhi High Court in Manish Sharma @ Pappan v. The State NCT of Delhi, 2018 [2] JCC 840, has held that:
Joint recovery inadmissible
71. It was important for the prosecution, for the purpose of Section 27 of the Indian Evidence Act (IEA), to show that it was the accused who pointed out the place where the dead body was buried. As explained by the Supreme Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh AIR 1983 SC 367 it was obligatory on the IO for the purpose of SC No.378/17, FIR No.325/13 State v. Vishal and Ors.PS Seemapuri Page 22 of 36 Digitally signed by NAVEEN GUPTA
Date: 2021.03.03 12:51:14 +05'30' Section 27 of IEA, when more than one accused were present, to indicate "what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide the incriminating evidence against that person."
72. Here the prosecution has tried to show that an identical disclosure was made by each of the three accused and pursuant thereto the recovery was effected. It virtually amounts to a joint recovery which in the present circumstances is not very convincing.
65. Thus, the Investigating Officer should have taken pain to record that what specific information of specific accused has led to recovery of weapon of offence. Accordingly, the recovery of weapon of offence is not convincing.
66. Connection of weapon of offence with commission of alleged offence Above all, PW-28 has tendered FSL report Ex. PW-28/A. In the report, it has been stated that profile could not be generated from the source of exhibits '1' (earth soil) and '5' (knife) due to degradation of samples. From the abovesaid report, it is made out that the prosecution has failed to prove that the ustara, allegedly recovered at the instance of accused persons, had been used during the commission of alleged offence.
67. So far as argument of Ld. counsel for the accused is concerned that the prosecution did not examine the doctor in respect of the opinion that injuries to the deceased was possible by recovered weapon of offence. It is pertinent to note that subsequent opinion of Dr. Neha Gupta (PW-
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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23) is available on record, wherein she has opined that injury no.1 mentioned in PM report is possible by given weapon for examination. The said weapon had been sent for examination to Dr. Neha Gupta by PW-31/Inspector Arun Chaudhary on 04.09.2017 through Ct. Kalu Ram (PW-30). PW-32/HC Rohtash has also corroborated the aspect of taking the weapon from malkhana on 04.09.2017.
68. But, merely because Dr. Neha Gupta has given an opinion that injury no.1 mentioned in PM report is possible by given weapon for examination, the said opinion does not conclusively prove that the ustara, recovered at the instance of accused persons, had been used for commission of the alleged offence.
69. Recovery of blood stained clothes of accused persons It is the case of the prosecution that after apprehension of the accused persons on 07.07.2013, blood stained clothes and shoes of A-3, blood stained clothes of A-2 and blood stained clothes and shoes of A-1 were recovered vide memos Ex. PW-13/M, Ex. PW-13/N and Ex. PW-13/O respectively. It is worth noting that FSL report Ex. PW-28/A has contained that blood could not be detected on exhibits '2', '6a', '6b', '6c', '6d', '7a', '7b', '8a', '8b' and '8c'. The abovesaid exhibits pertained to the abovesaid clothes and shoes allegedly recovered from the possession of accused persons. Thus, the prosecution has failed to connect the accused persons with the commission of alleged offence through this circumstance.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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70. Injuries caused to accused Hitesh during commission of the alleged offence It is the case of prosecution that when A-2 was cutting throat of the deceased, he had caused injuries to A-3 too in the process. The medical examination of A-3 conducted through MLC Ex. PW-20/C reflects the observations about some injuries to him. First of all, the prosecution has failed to examine any witness to prove that the alleged injuries could have been caused to A-3 with ustara, recovered at the instance of the accused persons and those injuries were about seven days old, as the alleged incident had occurred in the intervening night of 30.06.2013 and 01.07.2013 and A-3 had been apprehended on 07.07.2013. Moreover, in the MLC Ex. PW-20/C too, it has been mentioned that opinion regarding weapon of offence should be taken from the Forensic Department.
71. Even otherwise, FSL report Ex. PW-28/A contains that DNA profile from the source of exhibit '3' (cotton wool swab and gauze cloth piece) is not matching with the DNA profile from the source of exhibits '10' (blood in cloth piece of deceased) and '12' (blood in gauze of accused). The exhibit '3' is one cotton wool swab and gauze cloth piece which had been lifted from the scene of crime as blood on gauze. Had A-3 received injuries from the ustara, a sharp edged weapon, he must have got bleeding due to the said injuries and then, his blood might have fallen on any of the things associated with scene of crime. But, the prosecution could not produce any evidence in this regard. Hence, the prosecution has failed to prove this circumstance to connect A-3 with the commission of alleged offence. SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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72. Use of his SIM by accused Rahul in the mobile handset of deceased It is the case of prosecution that A-2 has operated his SIM using the mobile handset of deceased. The prosecution has examined PW-6/wife of deceased, who deposed that mobile number of her husband was 9899429009. The said mobile connection was issued on the ID of her jeth Subhash. PW-2/Subhash has also stated that his brother was using mobile phone bearing no.9899429009 at the time of incident and the same was got issued on his ID. During his cross-examination, he denied the suggestion that he was using SIM no.9899429009. The accused persons could not bring anything on record controverting the abovesaid versions of PW-6 and PW-2 during their cross-examination.
73. Furthermore, PW-6 has stated that on 30.06.2013 at about 11:30 pm, she made a call on mobile phone of her husband. Someone attended the phone and she recognized the voice was not of her husband. During her cross-examination, she voluntarily stated that she had made the said call through mobile phone taken from her neighbour. Police did not make inquiry from her regarding her calling husband, hence, she did not disclose this fact to the police.
74. The call details (CDR) of mobile no. 9899429009 Ex. PW-17/C and customer application form (CAF) of the said mobile number Ex. PW- 17/A have been tendered in evidence. CAF shows that the abovesaid SIM had been issued in the name of Subhash. Further, CDR of the abovesaid mobile number shows that on 30.06.2013, last call had been made to the abovesaid mobile number at 23:06 from the mobile SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 26 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:52:15 +05'30' number 9410624493. The call made at 23:06 on 30.06.2013 at mobile number 9899429009 corroborates the version of PW-6 to this effect. CAF corroborates version of PW-2 and PW-6 that the mobile number was issued in the name of Subhash (PW-2). Thus, abovesaid, coupled with testimony of PW-2 and PW-6 in this regard, proves that the deceased was operating SIM no.9899429009.
75. It is further case of prosecution that A-2 has got a SIM no.9560585879 issued in his name on 05.07.2013 and operated the same using the mobile handset of deceased. The prosecution examined PW-14, who tendered CAF Ex. PW-14/A and CDR Ex. PW-14/B of the abovesaid SIM. Prosecution has also examined PW-4 Mohd. Haseen, who has stated that on 05.07.2013, accused Rahul had come to his shop and purchased SIM of Airtel company. PW-4, during his cross- examination, has stated that there was no other employee working on the aforesaid shop. Further, accused Rahul had not filled any form in his presence.
76. First of all, it is pertinent to note that though CAF Ex. PW-14/A is in the name of A-2. But, the form reflects that the same has been filled on 02.07.2013, as against the claim of PW-4 that A-2 purchased SIM of Airtel company on 05.07.2013. The prosecution has failed to explain the abovesaid contradiction. Further, when no employee had been working other than PW-4 at the shop from where A-2 had purchased the SIM no., then it could be PW-4 only who should have explained the anomaly in the date of filling of CAF by A-2 and the date of issuance of SIM to A-2.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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77. It is further worth noting that PW-4 stated that on 05.07.2013, he obtained voter ID photocopy of the accused. But, PW-14 has stated that at the time of issuance of SIM card, the customer had submitted photocopy of driving license. This is material contradiction in the testimonies of PW-4 and PW-14, specifically when the mobile number 9560585879 had been allegedly got issued by A-2 after the commission of alleged offence.
78. The CDR Ex. PW-14/B of mobile number 9560585879 shows that one call was received at this number through mobile number 9266494251 on 06.07.2013 at 10:00 am. But, surprisingly, the Investigating Officer did not make efforts to examine the person operating the mobile number 9266494251 and show that the said person had, in fact, talked to A-2 on 06.07.2013 at 10:00 am.
79. It is pertinent to note that as per disclosure statement of A-2 Ex. PW- 13/I, he has disclosed that the mobile handset of deceased had got lost in the afternoon of 06.07.2013. In the disclosure statement, the mobile number 9560585879 has also been mentioned. First of all, the prosecution has failed to recover the mobile handset of the deceased. Further, it is highly unlikely that an accused who has got issued a SIM two days back would be able to remember the mobile number and disclose the same to the Investigating Officer. At this stage, the testimonies of other prosecution witnesses related to this circumstance become relevant.
80. PW-1/brother of deceased deposed that on 17.07.2013, he handed over the box of mobile phone of deceased to the Investigating Officer, SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 28 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:52:46 +05'30' which was seized vide memo Ex. PW-1/C. PW-1, during his cross- examination, stated that the mobile box Ex. P-1 was searched by wife of deceased as well as by him. While, PW-2, during his cross- examination conducted on 04.03.2014, deposed that the police had taken the empty mobile box on 05.07.2013 from his house. PW-6, during her cross-examination, has stated that she had informed the police that the mobile box was lying at Jaunpur. The said box was left at her parental house by her during the lifetime of her husband alongwith other articles. Her brother had sent the said box through courier after murder of her husband, after about one week.
81. The abovesaid testimony of PW-1, PW-2 and PW-6 creates an inconsistency in respect of date of handing over of box of mobile handset Ex. P1 of the deceased to the Investigating Officer. Though, the Investigating Officer/PW-26 has claimed that on 17.07.2013, PW-1 had produced one box of mobile phone and the same was seized vide Ex. PW-1/C and pulanda to this effect was deposited in the malkhana. But, PW-11 has tendered respective entry no.3581 in register no.19 as Ex. PW-11/C, vide which one mobile phone box was deposited in malkhana on 19.07.2013. If the box of mobile phone of deceased had been seized on 17.07.2013 by PW-26/IO, then why he kept the box with him for two days and deposited the same in malkhana on 19.07.2013. The abovesaid contradiction coupled with the inconsistency pointed out in the testimonies of PW-1, PW-2 and PW-6 causes dent in the case of prosecution.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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82. So far as argument of Ld. counsel for the accused is concerned that IMEI number of mobile handset through which SIM number 9560585879 was operated, is shown as 352858027702710 in CDR Ex. PW-14/B. While, as per testimony of PW-1, the IMEI number of mobile handset of deceased is 352858027702719. Thus, there is material contradiction in the case of prosecution in this regard.
83. It is pertinent to note that PW-14 has clarified during his cross- examination that last digit of IMEI number is for the operator. If any digit out of first 14 changes, then it means it is a different mobile handset. Even otherwise, from the CDR Ex. PW-17/C of mobile number 9899429009, it can be made out that IMEI number of mobile handset through which this number was operated is 352858057702710. Above all, Ld. Addl. PP for the State has relied upon one precedent laid down by the Hon'ble Delhi High Court in this regard i.e. Gajraj v. State, in Crl.A. No. 461/2008 decided on 18.03.2009. Following the abovesaid precedent, the Court does not find any contradiction in the case of prosecution on this aspect.
84. Not sending exhibits to the FSL timely The investigating officer has committed a grave lapse during investigating into the case. He had lifted samples from the crime scene on 01.07.2013 vide memo Ex. PW-7/B. He also seized the knife and cloths of accused persons on 07.07.2013. But, he took steps to seize the cloths and blood sample of deceased only on 05.09.2013. And he sent the exhibits to FSL for expert opinion only on 11.09.2013 i.e. after more than two months of commission of alleged offence and SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 30 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:53:14 +05'30' arrest of accused persons. That is why, it has been reported by FSL that profile could not be generated from the source of exhibits '1' (earth soil) and '5' (knife) due to degradation of samples.
85. Another lapse on part of investigating agency As per the case of prosecution, three accused were together since evening on 30.06.2013 till the commission of offence at about 11.30 pm and even thereafter, till hiding of weapon of offence in the park. Further, after arrest of accused persons, mobile phones were recovered in the personal search of A-1 vide memo Ex. Ex. PW-13/F and of A-3 vide memo Ex. Ex. PW-13/D. IO/PW-26 had got CDRs of mobile number operated by deceased and mobile number of A-2, which was allegedly got issued by him. But, surprisingly, he did not make efforts to get CDRs of mobile numbers of A-1 and A-3, which could have proved their location at or around the spot at the time of commission of the alleged offence. This could have been strong electronic evidence against the accused persons.
86. Motive The case of prosecution is that the accused persons intended to rob the deceased and in order to do the same, they killed him. They robbed the deceased of Rs. 200 and mobile phone. It is pertinent to note that in the personal search of the deceased, a currency note of Rs. 50 had also been recovered alongwith other articles. Same had been seized vide memo Ex. PW-7/A. Had the accused persons robbed the deceased of his meager money of Rs. 200, then why they would have left a currency note of Rs.50 with him. This causes a doubt on the case of SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 31 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:53:28 +05'30' prosecution so far as motive to commit the alleged offence is concerned.
87. Applicability of Precedents Ld. counsel for accused Rahul and Hitesh has relied upon following precedents in support of his arguments: State v. Sunil Kumar @ Sagar @ Rahul and Ors., 2015 [2] JCC 802; Surinder Kumar @ Nanhe v. State of NCT of Delhi, 2013 [3] JCC 2152; Raj Kumar v. The State (NCT of Delhi), 2011 [4] JCC 2818; Ravi Kumar @ Sonu & Ors. v. State, 2013 [2] JCC 1394; Anil Kumar Goswami v. State (NCT of Delhi), 2012 [1] JCC 47; Sonvir @ Somvir v. The State of Delhi, 2018 [4] JCC 2217; State of NCT of Delhi v. Monu, 2017 [4] JCC 2318; Kallikatt Kunhu v. State of Kerala, 2000 [1] JCC [SC] 312; Kalu @ Rajvir @ Rinku v. State, 2018 [2] JCC 1147; Debapriya Pal v. State of West Bengal, 2017 [2] JCC 986; Manish Sharma @ Pappan v. The State NCT of Delhi, 2018 [2] JCC 840; Rajesh v. State, 2018 [1] JCC 462; Madhu v. State of Kerala, 2012 [1] JCC 620; State of Rajasthan v. Mahesh Kumar @ Mahesh Dhaulpuria & Anr., 2020 [1] JCC 35; Jabir Ali @ Sonu v. State, 2013 [3] JCC 1661; Trilochan Singh @ Happy v. State, 2018 [1] JCC 486 and Ashok Kumar v. State NCT of Delhi, 2012 [1] JCC 59. Ld. counsel for accused Vishal has relied upon the precedent of Dhan Raj @ Dhand v. State of Haryana, in Crl. Appeal No. 1410/2010 decided by the Hon'ble Supreme Court on 09.05.2014, in support of his arguments.
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
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88. This Court has gone through the above precedents keeping in view their relevance, on the respective aspects, as pointed out by Ld. Counsels for the accused. The legal positions explained in the above precedents have been followed by the Court while deciding the above aspects.
89. Case based on circumstantial evidence and conclusion The present case is based on circumstantial evidence. The legal position in case pertaining to circumstantial evidence has been explained by the Hon'ble Delhi High Court in Rajeev Ohlan v. State (NCT of Delhi), 2016 (4) LRC 326, that:
16. Before we consider each circumstance, it would be useful to revisit the law which is well settled relating to circumstantial evidence. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence.
22. In case of circumstantial evidence, the Court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts.
90. The prosecution could not conclusively connect the recovered weapon of offence with commission of offence. The cloths of accused also SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 33 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:53:58 +05'30' could not be connected with the alleged offence. The prosecution has failed to prove that A-3 received injuries during commission of the alleged offence. Only circumstance which is left to be considered is that A-2 had operated the SIM using the mobile handset of the deceased. The court has already dealt with all the aspects related to this circumstance and found that there are material contradictions in the case of prosecution.
91. Ld. Addl. PP has argued that A-2 has not given any cogent explanation about his signature and photo on CAF Ex. PW-14/A and copy of his driving license annexed with it. First of all, it is worth noting that the investigating agency could not recover the mobile handset of the deceased which was allegedly used by A-2 for operating the SIM issued in his name.
92. Further, during cross-examination of PW-22 conducted on 09.03.2015, a suggestion was put to him that A-2 was lifted from his house on 04.07.2013 and his identity card, photos were also taken in possession. And police obtained a SIM card on the identity proof of the accused and made frivolous call in order to implicate A-2 in this case and also to create false evidence against him. Further, a suggestion was also put to PW-26 during his cross-examination conducted on 27.07.2017 that on 04.07.2013, he obtained signature of A-2 on CAF in connivance with PW-4.
93. Though it can be claimed by A-2 that he has put his defense to members of raiding party as well as to IO, but it is pertinent to note that if A-2 had been apprehended by the investigating agency on SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 34 of 36 Digitally signed by NAVEEN GUPTADate: 2021.03.03 12:54:13 +05'30' 04.07.2013, then why he did not file any complaint before the Court against such illegal act or report to senior police officials. He did not produce any evidence to prove his defence in this regard. Thus, it is true that A-2 did not give any cogent explanation about the aspect pointed out by Ld. Addl. PP for the State. At this stage, the observations made by the Hon'ble Delhi High Court in Kalu @ Rajvir @ Rinku v. State (supra), are worth mentioning herein that:
13.39 Having said that, it may not be possible for us to exonerate the appellants entirely of all culpability in view of the one severely incriminating circumstance, i.e. that, by correlating the IMEI number of the "GILD" Mobile Phone which was being carried by Sahdev, at the time of his murder, with the call detail records of the mobile number of Kalu 7838205464, it was found that from 03:58:57 hours on 17th August, 2011, to 11:49:44 hours on 18th August, 2011, the mobile number of Kalu was operated using the said handset of the deceased Sahdev. On this point being brought to the notice of Kalu, while recording his statement under Section 313 of the Cr.P.C, Kalu had no explanation to offer except bald denial of the same. Section 106 of the Evidence Act, mandates that any fact, which is especially within the knowledge of any person, has to be proved by that person. In other words, it was for Kalu to explain, how his mobile number was being operated using the handset of deceased Sahdev, and, in the absence of any reasonable explanation in this regard, we are constrained to hold that Kalu was in possession of the property of Sahdev in full awareness of the fact that the said property did not belong to him. We cannot, however, extrapolate this single circumstance to the extent of inculpating either Kalu or Lalit, on the basis thereof, in the murder of Sahdev, as the mere factum of possession, by Kalu, of the mobile handset of Sahdev cannot lead to a definite conclusion that Kalu must have murdered Sahdev, or even that Kalu had stolen the phone from Sahdev. We may draw an analogy, in this regard, SC No.378/17, FIR No.325/13 State v. Vishal and Ors.PS Seemapuri Page 35 of 36 Digitally signed by NAVEEN GUPTA
Date: 2021.03.03 12:54:29 +05'30' from the judgment of the Supreme Court in Mohd Inayatullah (supra), to which we have already made reference hereinabove.
94. Thus, by applying the above precedent in facts and circumstances of the present case, this circumstance does not prove the guilt of A-2 for offence of murder and not even of robbery. The prosecution has not proved the circumstances from which the conclusion of guilt of any accused could be drawn. Accordingly, the prosecution has failed to prove its case against the accused persons. The accused Vishal, Rahul and Hitesh are hereby acquitted of the offences charged against them.
Digitally signed by NAVEEN GUPTA
Date: 2021.03.03 12:54:44 +05'30'
Announced in open Court (Naveen Gupta)
on 03rd day of March, 2021 Addl. Sessions Judge-05
Shahdara District,
Karkardooma Courts, Delhi
SC No.378/17, FIR No.325/13 State v. Vishal and Ors.
PS Seemapuri Page 36 of 36