Delhi District Court
State vs Om Dutt on 22 July, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT )
WEST : TIS HAZARI COURTS: DELHI
SC No. 56471/16
FIR No. 498/2012
U/s. 302 IPC
P.S Uttam Nagar
In the matter of :
State
Versus
Om Dutt
S/o Sh. Braham Dutt
R/o WZ-6, Om Vihar,
Phase-IIA, Uttam Nagar
New Delhi
Date of Institution : 11-03-2013
Date of reserving Judgment : 05-07-2017
Date of pronouncement : 22-07-2017
Appearances
For the State : Ms. Reeta Sharma, Additional
Public Prosecutor.
For the accused : Shri Dinesh Mudgil , Advocate.
Sessions Case No. 56471/16 Page 1/52
JUDGMENT
Accused Om Dutt S/o Shri Braham Dutt, aged 23 years, was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 25.02.2013 upon conclusion of investigation into First Information Report (FIR) No. 498/2012 of police station (PS) Uttam Nagar for offence punishable under Sections 302 of the Indian Penal Code,1860 (IPC).
2. As per the prosecution story, on 29.11.2012 on receipt of Daily Diary (DD) No.2A, Sub Inspector (SI) Vijender Singh alongwith constable Chander Prakash reached at Metro pillar no.700, main Najafgarh Road, Delhi, where SI Vijender Singh met with Head Constable (HC) Kamal Singh. He recorded the statement of HC Kamal Singh. HC Kamal Singh stated that on 29.11.2012 he and constable Harinder were on patrolling duty and at about 12.30 midnight, when they reached near Metro pillar no.700, main Najafgarh road, they saw one Sessions Case No. 56471/16 Page 2/52 Maruti-800, white colour car, bearing registration no.DL 4CQ 1232, which was shaking. There were black colour cloth stickers (Sunshades) on the side door glasses of the said vehicle. HC Kamal Singh further stated that they immediately went near the car and saw a boy was strangulating a girl with a shawl in the space between rear and front seat inside the car. Further, he tried to open the door of the car, but the same was locked from inside. The driver side door was opened after making some efforts. HC Kamal Singh further stated that he,with the help of constable Harinder, overpowered the boy while the girl kept lying motionless in the space between rear and the front seat. He also called and checked the girl but there was no response. Further, on inquiry, name of the boy came to be known as Om Dutt S/o Braham Dutt, R/o H.No. WZ-6, Om Vihar- IIA, Uttam Nagar and name of deceased girl as Reena D/o late Joginder Kumar R/o B-56, Anand Vihar, Uttam Nagar. He then informed the police station Uttam Nagar and consequently, SI Vijender Singh alongwith the staff reached at the spot. HC Kamal Singh handed over the custody of the boy Sessions Case No. 56471/16 Page 3/52 namely Om Dutt, dead body of deceased Reena and the car to SI Vijender Singh. SI Vijender Singh called the crime team and got the spot photographed. SI Vijender Singh prepared rukka and got the FIR registered. Station House Officer (SHO) Inspector Ashok Kumar was also informed who also reached at the spot and inspected the dead body lying in the car. The dead body was sent to DDU hospital. HC Kamal Singh was sent to the house of Reena (deceased) at B-56, Anand Vihar, Uttam Nagar, Delhi, to inform about the incident where brother of Reena (deceased) namely Kulwant Kumar met him who came to the spot and identified the dead body of his sister and also the accused Om Dutt. He told that his sister Reena (deceased) was in a relationship with accused Om Dutt and on that day, in the evening, his sister Reena (deceased) had gone to meet accused Om Dutt at his house.
3. On the statement of HC Kamal Singh, the FIR No. 498/12 under Section 302 IPC was registered and investigation was carried out by SHO/Inspector Ashok Kumar, the Investigating Officer (IO).
Sessions Case No. 56471/16 Page 4/524. During the course of investigation, the IO prepared the site plan at the instance of HC Kamal Singh. IO arrested the accused Om Dutt and seized the Maruti-800 car. On 29.11.20I2 IO got the postmortem examination conducted on the dead body of Reena (deceased) and collected the postmortem report. After the postmortem, IO collected ligature material and other exhibits from the doctor concerned and seized the same. The accused Om Dutt had also produced two mobile phones and disclosed that Sim No.92116 48595 was his mobile number from which he used to make calls to Reena (deceased) on her mobile nos. 98915 93067 and 82853 83307. Call details record of the said mobile phones were procured. During the investigation, it was revealed that accused Om Dutt and Reena (deceased) were friends since 2008. Accused Om Dutt got married with other girl in the year 2010, but he continued to meet Reena (deceased) and afterwards, both of them started having differences/arguments and Reena (deceased) threatened him that she would tell everything to the parents of accused Om Dutt as well as to her parents Sessions Case No. 56471/16 Page 5/52 on which the accused Om Dutt murdered Reena (deceased) in order to get rid of her.
5. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence were collected to establish that the accused Om Dutt committed murder of Reena (deceased) by strangulation and accordingly, chargesheet was filed on 25.2.2013 in the court of learned Metropolitan Magistrate who after complying with the provisions stipulated under Section 207 Cr.P.C vide order dated 6.3.2013, committed the case to the court of Sessions on 11.03.2013.
6. After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused vide order dated 15.04.2013, charge for the commission of offence punishable under Section 302 IPC was framed against accused Om Dutt to which the accused did not plead guilty and claimed trial.
7. To bring home the afore-mentioned charge to the accused, the prosecution got examined HC Sessions Case No. 56471/16 Page 6/52 Kamal Singh (PW-1), HC Jagdish (PW-2), H.C Sanjeev Kumar (PW-3), Constable Mohit Dhariwal (PW-4), Sh. Vivek Sharma (PW-5), Sh. Kulwant (PW-6), SI Azad (PW-7), Sh. Braham Dutt (PW-8), Sh. Kulwinder Kumar (PW-9), Dr. Komal Singh (PW-10), Sh. Pawan Kumar, Nodal Officer (PW-11), Constable Chandra Prakash (PW-12), Constable Harender Kumar (PW-13), SI Vijender Singh (PW-
14), Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd (PW-15) , Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd. (PW-16), Constable Ankur (PW-
17), Inspector Mahesh Kumar (PW-18) and ACP Ashok Kumar (PW-19).
SI Vijender Singh (PW-14) could not be cross- examined as he expired during the trial.
8. The prosecution also relied on documents tendered into evidence i.e Rukka ( Ex.PW-1/A), disclosure statement (Ex.PW-1/B), arrest memo of the accused (Ex.PW-1/C), personal search memo (Ex.PW-1/D), seizure memo of two mobile phones i.e Tata Indicom Huawei and Samsung CE 0168 (Ex.PW-1/E), Seizure memo of Maruti-800 Car No. Sessions Case No. 56471/16 Page 7/52 DL4CQ 1232 (Ex.PW-1/F), FIR (Ex.PW-2/A), Certificate under Section 65-B of the Indian Evidence Act, 1872 (Ex.PW-2/B), Endorsement on Rukka (Ex.PW-2/C), DD Entry No.2A, dated 29.11.2012 (Ex.PW-2/D), Photographs of the car (Ex.PW-3/A1 to Ex.PW-3/A8), Negatives (Ex.PW- 3/A9 to Ex.PW-3/A16), identification statement of dead body (Ex.PW-6/A), handing over dead body memo (Ex.PW-6/B), crime team report (Ex.PW- 6/B), seizure memo of photocopy of Registration Certificate of vehicle No. DL 4CQ 1232 (PW-8/A), superdarinama of the car ( Ex.PW-8/B), identification statement of dead body (Ex.PW-9/A), postmortem examination report (Ex.PW-10/A), Call Details Report (CDR) of mobile No.9891593067 (Ex.PW-11/A), Customer Application Form (CAF) of the mobile No. 9891593067 (Ex.PW-11/B), election I card (Ex.PW-11/C), Certificate under Section 65-B of the Indian Evidence Act, 1872 (Ex.PW-11/D), seizure memo of clothes of deceased (Ex.PW-12/A), seizure memo of blood in gauze piece (Ex.PW-12/B), endorsement on Rukka (Ex.PW-14/A), CAF of mobile No. 92116 48595 Sessions Case No. 56471/16 Page 8/52 alongwith ID proof I.e driving licence (Ex.PW- 15/A), CDR of the abovesaid mobile number during 1.10.2012 to 1.12.2012 (Ex.PW-15/B), certificate under Section 65-B of the Indian Evidence Act,1972 (Ex.PW-15/C), forwarding letter to police (Ex.PW- 15/D), Cell ID/Location Chart for the period 1.10.2012 to 1.12.2013 (Ex.PW15/E), record of Cell I.D dated 28.11.2012 (Ex.PW-15/G), CAF of mobile no. 82853 83307 alongwith ID proof (Ex.PW-16/A), CDR of the mobile number 8285 383307 (Ex.PW-16/B), certificate under Section 65- B of the Indian Evidence Act,1972 (Ex.PW-16/C), Cell ID/Location Chart of the 82853 83307 mobile phone (Ex.PW-16/D), forwarding letter to the police (Ex.PW-16/E), DD Entry No.2B dated 29.11.12 (Ex.PW-17/A), scaled site plan (Ex.PW-18/A), death report (Ex.PW-19/A) and site plan without scale (Ex.PW-19/B).
9. After conclusion of prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded on 9.1.2017 wherein the accused denied the correctness of all the incriminating circumstances appearing in the evidence against him Sessions Case No. 56471/16 Page 9/52 and stated that he was wrongly arrested and was falsely implicated in the present case. He stated that Reena (deceased) was his friend who used to meet him often which was not liked by her brothers as she was unmarried and literate, whereas he was not so literate. He further stated that he has been falsely implicated as the dead body of Reena (deceased) was found in his car.
10. The accused desired to lead evidence in defence The accused got examined Sh. Sushil Kumar (DW-1), Smt. Neelam (DW-2) and Sh. Mukesh Kumar Sharma (DW-3) in his defence.
11. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Sh. Dinesh Mudgil, learned counsel for the accused. I have also perused the entire material available on record.
12. During the course of arguments, it was submitted by the learned Additional Public Prosecutor that the case of the prosecution is based on direct evidence i.e eye witness account of HC Sessions Case No. 56471/16 Page 10/52 Kamal Singh (PW-1) and constable Harender Kumar (PW-13) who witnessed the accused strangulating Reena (deceased) in his own car. There are no material contradictions in the testimonies of PW-1 and PW-13 and other prosecution witnesses, going to the root of the case. Further, the prosecution successfully proved its case against the accused beyond all reasonable doubts as all the prosecution witnesses corroborated each other in consonance with the documentary evidence. Further, the defence taken by the accused regarding his false implication is not plausible as no information or complaint to senior police officers or to any court of law was ever filed by the family members of the accused regarding his false implication in the present case. There is no explanation furnished by the accused how the dead body of the deceased was found in his car. The testimony of defence witnesses are also not believable as they failed to depose why only the accused was lifted from his house.
13. Per contra, learned counsel for the accused argued that the prosecution miserably failed to Sessions Case No. 56471/16 Page 11/52 establish the presence of the accused on the scene of crime as there are material contradiction in the testimonies of both the purported eye-witnesses i.e PW-1 and PW-13. As per the testimony of PW-13, it is clear that he was not present at the spot. Further, the brothers of the deceased who were examined by the prosecution as PW-6 and PW-9 did not support the prosecution case which raises doubt on the entire prosecution story. There were several public persons present on the spot, however, none of them was joined in the investigation nor was made witness in the present case. Further, as per the material available on record, there is no mention about the keys of the car and why there was chappal (footwear) only in one feet of the deceased. The chappal (footwear) was not seized by the I.O which indicates that death of the deceased was not caused inside the car, but elsewhere. Moreover, the location of mobile phones, one belonging to the accused and the other belonging to the deceased could not be traced to the scene of crime which again falsify the prosecution case. Learned counsel for the accused also filed written arguments to highlight the Sessions Case No. 56471/16 Page 12/52 contradictions in the testimonies of prosecution witnesses and argued that the prosecution failed to established the presence of accused on the scene of crime which entitle the accused for acquittal.
14. In rebuttal, learned Additional Public Prosecutor for the State argued that the I.O did not seize the chappal (footwear) which the deceased was wearing as it was not deemed necessary in the present case which is based mainly on direct evidence and not on circumstantial evidence. As far as the location of the mobile phones recovered from the accused is concerned, the seizure memo Ex.PW- 1/E does not disclose the IMEI or SIM number of the mobile phone of the deceased, whereas the location of Tata Indicom mobile phone belonging to the accused was traced to be on the spot. Learned Additional Public Prosecutor for the State further argued that both the brothers of the deceased were won over by the family of the accused and therefore, their testimony is not reliable. Further, even if, there is lapse in the investigation with regard to the keys of the car, the same is not fatal to the prosecution case. The keys of the car, otherwise, Sessions Case No. 56471/16 Page 13/52 could not be produced by the accused so as to create doubt in the prosecution version. Learned Additional Public Prosecutor for the State accordingly argued that the prosecution is duty bound to prove its case beyond all reasonable doubts and not beyond all doubts which has been proved in the present case, warranting conviction of the accused.
15. I have given my thoughtful consideration to the submissions advanced by both the sides and have gone through the written arguments filed by learned counsel for the accused.
16. In the present case, the accused has been charged for commission of offence under Section 302 IPC. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature Sessions Case No. 56471/16 Page 14/52 to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
17. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299.Culpable homicide- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
18. In the facts and circumstances of the case and in view of the submissions advanced on behalf of both the sides, following points for determination are emerging:
1 Whether Reena D/o late Joginder Kumar R/o B-56, Anand Vihar, Uttam Nagar,Delhi, died in the intervening night of 28/29-11-
2012 ?
2 If so, whether the death of Reena was homicidal and not accidental or suicidal ?
3 Whether the accused Om Dutt S/o Braham Dutt was present on the scene of crime in the Sessions Case No. 56471/16 Page 15/52 intervening night of 28/29-11-2012 at around 12.30 a.m ?
4 Whether the accused Om Dutt committed the murder of Reena by strangulation on the relevant date and time ?
19. The case of the prosecution is primarily based on eye witness account of H.C Kamal Singh (PW-1) and Constable Harender Kumar (PW-13).
20. HC Kamal Singh (PW-1) deposed that in the intervening night of 28-11-2012 and 29-11-2012, he was on patrolling duty alongwith constable Harender (PW-13). At about 12.30 a.m., when they reached near Metro pillar no.700, main Najafgarh road, they saw one Maruti car of white colour bearing registration no. DL 4CQ 1232 which was shaking. They reached there and saw that the accused was pressing the neck of a girl by pulling a shawl on the neck of that girl in the space between the front seat and rear seat of the car. PW-1 further deposed that they tried to open the rear door of the car, but it could not be opened as it was locked. They then opened the driver side door of the car and thereafter opened its rear door. The accused was apprehended and brought out of the car. Further, PW-1 deposed Sessions Case No. 56471/16 Page 16/52 that he touched the girl lying in the car, but there was no response as she was lying dead. PW-1 then informed the police station and consequently SI Vijender Singh (PW-14) and constable Chander Prakash (PW-12) had come at the spot. He handed over the accused, the dead body of the girl and the car to SI Vijender Singh (PW-14) who recorded the statement Ex.PW-1/A of HC Kamal Singh (PW-1) and also informed the SHO who also had come at the spot. Constable Harender (PW-13) took the rukka (Ex.PW-1/A) to the police station and got the FIR registered. Further investigation was taken up by the SHO. Crime team also arrived at the spot. The disclosure statement Ex.PW-1/B of the accused was recorded. The accused was arrested vide arrest memo Ex.PW-1/C and his personal search was conducted vide memo Ex.PW-1/D. The accused produced two mobiles to the IO which were seized vide seizure memo Ex.PW-1/E. The car was seized vide seizure memo Ex.PW-1/F. All the aforesaid documents were witnessed by HC Kamal Singh (PW-1).
21. Further, PW-1 deposed that the name of the Sessions Case No. 56471/16 Page 17/52 deceased girl was revealed as Reena and he was also sent to the house of the deceased where Mr. Kulwant (PW-6), brother of Reena (deceased) met him who accompanied him to the spot.
22. On 18.2.2013, PW-1 alongwith I.O and SI Mahesh (PW-18), the Draftsman, visited the spot and at his instance, the Draftsman took the measurement and prepared rough notes of the spot. PW-1 duly identified shawl (stol) Ex.P-2 to be the same which was found on the neck of the deceased. PW-1 further identified the mobile phones- one of Make Tata Indicom "HUAWEI" of black colour with IMEI No. A0000033139099 and other of Make Samsung CE0168 of white colour both Ex.P-3 and P-4 respectively.
23. Constable Harender Kumar (PW-13) deposed that on 29.11.2012 while on patrolling duty alongwith HC Kamal Singh (PW-1), at about 12.30 a.m., they reached near Metro pillar no.700 at Najafgarh road where they found a Maruti-800 of white colour bearing registration no. DL 4CQ 1232 which was shaking. They tried to open the doors of the car which could not be opened. Then, they tried Sessions Case No. 56471/16 Page 18/52 to open the door from driver's side which was opened. PW-13 further deposed that when they opened the door from the driver's side, they saw that one girl was lying in the car. The accused was sitting on the driver's seat. The girl was found strangulated with shawl and was dead. HC Kamal Singh (PW-1) made a call to the police station and consequently SI Vijender Singh (PW-14) and constable Chander Prakash (PW-12) reached at the spot. After some time, SHO Sh. Ashok Tyagi had also reached at the spot. PW-13 further deposed that he had seen accused who was strangulating the neck of the girl with shawl.
24. During examination-in-chief, a question was put to PW-13 whether he had seen accused strangulating the neck of the girl or whether he had seen the girl dead when the door was opened. PW- 13 answered that when they opened the door of the car, the girl was found lying dead. PW-13 was then cross-examined by the learned Additional Public Prosecutor for the State, wherein he deposed that he had seen accused from the window of the driver's seat of the car who was strangulating the neck of the Sessions Case No. 56471/16 Page 19/52 girl with shawl.
1. PW-13 further deposed that the name of the deceased girl came to be known as Reena. The crime team officials were also called on the spot, the dead body of the deceased girl was sent to DDU hospital through constable Chander Prakash (PW-12). SI Vijender Singh (PW-14) prepared a rukka (Ex.PW-1/A) which was handed over to him for getting the case registered. PW-13 also identified the accused present in the court who was arrested and handed over to HC Kamal (PW-1) at 4 a.m. He also identified the shawl Ex.P-2.
25. Both PW-1 and PW-13 were cross-examined at length by the learned defence counsel. As per their testimony, while patrolling the area in the intervening night of 28/29-11-2012, both PW-1 and PW-13 were in police uniform, when they noticed one Maruti car of white colour bearing registration no.DL 4C Q 1232 which was stationary near Metro pillar no.700, main Najafgarh road at around 12.30 a.m. The said car was shaking and inside the car the accused was seen strangulating a girl whose name was subsequently revealed to be Reena.
Sessions Case No. 56471/16 Page 20/5226. In his cross-examination, PW-1 stated that the accused had not tried to run away when he was asked to open the door of the car which were locked. This conduct on the part of the accused as deposed by PWs is somewhat unusual to match with the conduct of a person committing crime who is confronted with the police officials in uniform.
27. Then, PW-1 deposed that the driver door of the car was opened with the use of force and thereafter, the rear door of the car was opened. PW-1 further stated that they did not attempt to break the glass window of the car, nor raised any alarm after seeing the accused strangulating the girl which again does not appeal to common sense as it is not expected that one would silently continue to try opening the locked doors of the car even when such a heinous crime is being committed right in front of him. Moreover, no sign of any struggle or scratch/nail marks etc., were found inside the car on or near the car seat which are quite probable in the circumstance as deposed by PW-1 and PW-13.
28. Further, on the one hand, PW-1 deposed that the accused was on the rear seat of the car. On the Sessions Case No. 56471/16 Page 21/52 other hand, PW-13 in his examination-in-chief stated that the accused was sitting on the driver seat of the car wherein one girl was lying. She was found strangulated with a shawl. On further examination- in-chief, PW-13 stated that he had seen accused strangulating the neck of the girl with shawl. In view of his contradictory stand, learned Additional Public Prosecutor for the State had put a categorical question to PW-13 whether he had seen accused when he was strangulating the girl or whether he had seen the girl dead when he opened the door of the car. PW-13 answered, albeit evasively, that when they opened the door of the car, the girl was found lying dead. Learned Additional Public Prosecutor for the State accordingly chose to cross-examine PW-13 with the permission of the court on the point of witnessing the incident and then PW-13 stated in categorical terms that he had seen from the window of driver seat of the car that the accused was strangulating the neck of the girl with a shawl. The manner in which PW-13 deposed about having seen the accused strangulating the girl is sufficient to raise doubts on the truthfulness of his testimony. So Sessions Case No. 56471/16 Page 22/52 much prodding by the learned Additional Public Prosecutor is sufficient for a police witness to answer favourably. It may be fairly assumed.
29. It is also clear from the testimonies of both PW-1 and PW-13 that while patrolling the area they claimed to have seen the afore-mentioned car which was found shaking, meaning thereby, as per the testimony of both the witnesses, the accused must be strangulating the girl inside the car which might have caused the car to shake. It shows that there was not much gap when both the PWs claimed to have seen the car shaking, their witnessing the accused strangulating the girl and within few seconds, the accused being overpowered by them after forcefully opening the door of the car. Admittedly, no effort was made either by PW-1 or PW-13 to rush the girl immediately to the nearby hospital while as per their testimony Mata Roop Rani Maggu Hospital was situated near Metro pillar no.706, Mahendru Hospital was situated at a distance of about 200/300 metres from Metro pillar no.700 and Chaudhary Chajju Ram Hospital was situated at a distance of 500 metre from Metro pillar Sessions Case No. 56471/16 Page 23/52 no.700. If the version of both PW-1 and PW-13 is to be believed, as a prudent man and being the policemen, they should have taken the girl immediately to any nearby hospital for her revival by resuscitation procedure etc. Instead, PW-1 chose to believe his skills and experience to come to a conclusion that the girl was already dead. The action on the part of both PW-1 and PW-13 in not removing the girl to any of the nearby hospital cannot be justified and creates doubt in the story of the prosecution that both PW-1 and PW-13 witnessed with their naked eyes that the accused was strangulating the girl. In fact, the dead body of the deceased was not taken to any hospital for taking the opinion of any doctor regarding her death and her dead body was straightaway sent to the mortuary of DDU hospital for postmortem examination. This action on the part of the police officials and the Investigating Officer is quite unprofessional against the nature of their respective duties and goes to strengthen the apprehension expressed by learned Defence Counsel that the deceased was murdered elsewhere and not on the spot. Not a single Sessions Case No. 56471/16 Page 24/52 explanation could be furnished by PW-1, PW-13 and the I.O (PW-19) for not immediately removing the girl for medical help. Besides, PW-1 though deposed that he was sent to the house of the deceased and her brother namely Kulwant (PW-6) accompanied him to the spot, the fact remains that PW-1 did not depose that Kulwant (PW-6) had identified the accused in order to prove the presence of the accused on the spot. PW-6, on the other hand, did not depose any such fact at all.
30. As far as the presence of the accused on the scene of crime on the relevant date and time is concerned, it is pertinent to refer the testimony of constable Chander Prakash (PW-12) who had reached at the spot with SI Vijender Singh (PW-14) within 10 minutes of receiving information from PW-1. Here, it is noteworthy that SI Vijender Singh (PW-14) could not be cross-examined as he had expired during trial and therefore, his testimony cannot be looked into for any purpose.
31. Constable Chander Prakash (PW-12) deposed that on 29.11.2012, on receipt of DD No.2A, he alongwith SI Vijender had gone to the spot i.e Metro Sessions Case No. 56471/16 Page 25/52 pillar no.700, main Najafgarh road, at round 12.45 a.m, where HC Kamal (PW-1) and constable Harender (PW-13) met and told them about dead body of a lady in the car bearing registration No. DL 4C Q 1232. Further, PW-12 deposed that the IO (PW-19) conveyed the message to senior officers and crime team who arrived at the spot, the dead body was sent to DDU mortuary where postmortem was conducted and thereafter the dead body was handed over to the relatives.
32. PW-12 was cross-examined by the learned Additional Public Prosecutor for the State after declaring him hostile as he resiled from his previous statement. In his cross-examination, PW-12 denied the suggestion that HC Kamal (PW-1) and constable Harender (PW-13) had the custody of a boy namely Om Dutt S/o Braham Dutt i.e the accused. He also denied the suggestion about deposing falsely that 2/3 boys were also standing at the spot or the police officials standing there did not tell him about the accused.
33. In his examination-in-chief, PW-12 did not state anything to indicate that the accused was Sessions Case No. 56471/16 Page 26/52 present on the spot, he merely stated about PW-1 and PW-13 telling him about a dead body of a lady in the car. In his cross-examination by the learned Defence Counsel, PW-12 initially stated that no public person was present at the spot and after his reaching at the spot, the crime team and the photographer had also reached who had taken the photograph in his presence. PW-12 was also shown a photograph Ex.PW-3/A-2 wherein one male and one female were shown standing which was admitted by PW-12 to be correct. Therefore, it is clear that there is nothing in the testimony of PW-12 who had reached at the spot within 10 minutes of receiving the call from PW-1 to indicate about the presence of the accused on the spot.
34. The testimonies of HC Sanjeev Kumar (PW-
3), the photographer, SI Azad (PW-7) Incharge of Mobile Crime Team, Kulwant (PW-6) and Kulwinder Kumar, (PW-9), both brothers of the deceased are also noteworthy in this regard which are as under:
35. HC Sanjeev Kumar (PW-3) was posted as photographer with mobile crime team West district Sessions Case No. 56471/16 Page 27/52 and had visited the spot i.e near Metro pillar No.700, Najafgarh road, at about 1.35 a.m, on 29.11.2012. He had taken the photographs Ex.PW-3/A-1 to Ex.PW-3/A-8 on the instructions of SI Vijender Singh (PW-14). He also produced the negatives Ex.PW-3/A-9 to Ex.PW-3/A-16.
36. SI Azad (PW-7) deposed that on 20.11.2012, he was posted as Incharge, Mobile crime team, West district. He received a call from district control room to reach at the place of incident i.e Metro pillar no.700, main Najafgarh road. He reached there alongwith his team consisting of photographer and finger print proficient. PW-7 further deposed that he found a white colour Maruti car bearing registration No. DL 4C Q 1232 parked at the spot and in the foot space, between the back seat and front seat of the car, dead body of a female was lying with a cloth around her neck. PW-7 further deposed that the spot was photographed, chance prints were lifted from the spot, however, the chance prints could not be developed. No exhibits were lifted from the spot. PW-7 had prepared his report Ex.PW-7/A.
37. The prosecution also got examined Mr. Sessions Case No. 56471/16 Page 28/52 Kulwant (PW-6), brother of the deceased who deposed that on 28.11.2012, his younger sister namely Reena (deceased) had left the house at around 6.30 p.m on the pretext that she was going for some time and would return back soon. When she did not return back till 9.30 p.m., search for her started but she could not be traced till 12.30/1 a.m. PW-6 further deposed that then he came near Chajju Ram Hospital where there was a lot of crowd on the road and he came to know that one dead body was lying in a Maruti car. PW-6 had gone there and seen inside the car where he found the dead body of his sister lying inside the said car. He further deposed that in the meanwhile, police arrived there and he was not allowed to go near the spot and was asked to reach DDU hospital in the morning. Further, PW-6 had gone to DDU hospital next day morning and identified the dead body of his sister namely Reena (deceasaed) vide memo Ex.PW-6/A. He also received her dead body vide memo Ex.PW-6/B.
38. PW-6 was also cross-examined by the learned Additional Public Prosecutor for the State after declaring him hostile. In his cross-examination, Sessions Case No. 56471/16 Page 29/52 PW-6 neither admitted nor denied to have stated to the police that his sister Reena had left the house on 28.11.2012 after informing him that she was going to meet Om Dutt S/o Braham Dutt, with whom she was friendly. PW-6 could not remember if he had stated to the police that he was informed by one Head Constable in the morning of 29.11.2012 at around 4.30 a.m, about the incident. He further denied the suggestion that when he reached at the spot, the dead body of his sister was not lying in the car. PW-6 stated that Sim No. 9891593067 was registered in his name which was used by his sister namely Reena (deceased).
39. Prosecution also got examined Sh. Kulwinder Kumar (PW-9), another brother of Reena (deceased) who deposed that on 28.11.2012, when he had come back to his house from his work at around 9.30 p.m, he enquired about the whereabouts of his younger sister namely Reena, on which the family member told that she had gone to Beauty Parlour as she was doing the course of Beatuy Parlour. PW-9 deposed that he had waited till 11 p.m., and then made a call on the mobile of his sister which was unreachable.
Sessions Case No. 56471/16 Page 30/52Further, at around 1/1.30 a.m. a phone call was received from police station Uttam Nagar that his sister namely Reena had met with an accident. PW-9 deposed that on receipt of said information, his brother Kulwant had gone to the spot.
40. PW-9 was also cross-examined by the learned Additional Public Prosecutor for the State wherein he denied the suggestions that he had the knowledge of his sister Reena being on friendly terms with the accused, his brother Kulwant (PW-6) telling him that Reena had gone to meet the accused at 6 p.m. as she was called by him. PW-9 further denied the suggestion that he had slept at 9 p.m, and later on his brother Kulwant(PW-6) told him about the arrival of the police and he had also gone to the spot. PW- 9 further denied the suggestion about deposing falsely, having been won over by the accused.
41. An analysis of the testimonies of above- mentioned prosecution witnesses reveal that PW-3 had reached at the spot around one 1:35 a.m on 29.11.2012 and had taken photographs Ex.PW-3/A-1 to Ex.PW-3/A-8. In his cross-examination, he showed his ignorance about the accused and stated Sessions Case No. 56471/16 Page 31/52 that the photographs of the accused were not taken and the accused was not present at the spot when he had taken the photographs. Similarly, PW-7 deposed about the presence of 10 to 12 persons at the spot, out of which 3/4 persons were from local police. PW-7 also could not say if the accused was also present at the spot. Then, PW-6, one of the brothers of Reena (deceased) deposed that Reena (deceased) had left the house at around 6.30 pm on 28.11.2012 in a Maruti car belonging to the accused which she used to bring on earlier occasions also. PW-6 also stated that while searching for his sister on 28.11.2012, he had come near Chajju Ram Hospital where there was a lot of crowd on the road as one dead body was found lying in a Maruti car and when PW-6 had also gone there, he had found the dead body of his sister Reena lying in the car. Though PW-6 was declared hostile and was also cross- examined by the learned Additional Public Prosecutor, his testimony could not be impeached about reaching near the Chajju Ram Hospital around 12.30 a.m., where he found the dead body of his sister inside the car which was stationary on the Sessions Case No. 56471/16 Page 32/52 road, remaining there for around 10/12 minutes and then leaving the spot. He was also asked by the police to reach the DDU hospital on the next day morning where PW-6 identified the dead body of his sister Reena vide memo Ex.PW-6/A and received the same vide memo Ex.PW-6/B.
42. Further, as per the testimony of PW-9, another brother of Reena (deceased), on 28.11.2012, a phone call was received from PS Uttam Nagar around 1/1.30 a.m that his sister Reena (deceased) had met with an accident and on receiving the said information, his brother Kulwant (PW-6) had gone to the spot.
43. PW-9 was also cross-examined by learned Additional Public Prosecutor, however, besides giving suggestion to him, no material contradictions could be brought forth by his cross-examination. Even "the spot" where his brother Kulwant (PW-6) had gone could not be clarified.
44. In the given circumstances as mentioned above, the testimonies of above-mentioned witnesses further creates a doubt about the presence of the accused on the spot as alleged by the Sessions Case No. 56471/16 Page 33/52 prosecution.
45. Another crucial point regarding presence of the accused on the spot is borne out of the testimony of I.O of the case which is as under:
46. Ashok Kumar, ACP, Central District (PW-19) was the I.O of the case who deposed that on 29.11.2012, he was posted as SHO, PS Uttam Nagar. On that day, at about 1.30 a.m, he received information through SI Vijender Singh (PW-14) regarding dead body of a female lying in a car near Metro pillar no.700, Uttam nagar and the accused Om Dutt being apprehended at the spot. PW-19 reached at the spot where he found a white colour Maruti car whose last numbers were 1232 and there was one dead body of a female lying inside the said car. Crime team also reached at the spot and the spot was photographed. Constable Harender reached at the spot with rukka at about 2.30 a.m and the FIR was handed over to him. PW-19 identified the accused Om Dutt present in the court and stated that the accused was in the custody of SI Vijender and constable Chander Prakash. PW-19 again said that the accused was in the custdoy of SI Vijender and Sessions Case No. 56471/16 Page 34/52 HC Kamal. PW-19 further deposed that constable Chander Prakash was sent to the house of Reena (deceased), who returned to the spot alongwith Kulwinder,the brother of the deceased after some time. Kulwinder identified the accused and stated that accused used to meet his sister Reena (deceased). PW-19 recorded the statement of Kulwinder. PW-19 also recorded disclosure statement of the accused Ex.PW-1/B. PW-19 deposed that accused handed over him two mobile phones, one belonging to Reena (deceased), Make Samsung and other belonging to the accused, Make Tata. The said mobile phones were seized by him vide seizure memo Ex.PW-1/E. The dead body was sent to the mortuary Subzi Mandi through constable Chander Prakash. The car was seized vide seizure memo Ex.PW-1/F. PW-19 recorded the supplementary statement of HC Kamal and constable Harender after the arrest of the accused. The accused was arrested vide Ex.PW-1/C and his personal search was conducted vide Ex.PW-1/D.
47. PW-19 further deposed that on the next day the doctor handed over to him clothes of the Sessions Case No. 56471/16 Page 35/52 deceased and blood on gauze at Subzi Mandi mortuary which were seized by him vide seizure memo Ex.PW12/A and Ex.PW-12/B respectively. PW-19 again said the said clothes and blood on gauze were handed over to him at DDU hospital. PW-19 also prepared inquest report Ex.PW019/A before the postmortem. PW-19 recorded the identification statement Ex.PW6/A and Ex.PW-9/A. The dead body, after the postmortem was handed over to the relatives vide receipt Ex.PW-6/B. He also collected the postmortem report. PW-19 also recorded the statement of concerned officials regarding CDRs of the above-said mobile phones and prepared the site plan Ex.PW19/B at the instance of HC Kamal, seized the RC of Maruti car Ex.PW-8/A from the father of accused, recorded statement of the witnesses and prepared the chargesheet. PW-19 also identified mobile phones Samsung Duos Ex.P-4, Tata Indicom Ex.P-3, Shawl/Strall Ex.P-2 and photographs of the seized car. The car was already exhibited as Ex.P-1.
48. As per the testimony of PW-19, he had reached at the spot after receiving information Sessions Case No. 56471/16 Page 36/52 around 1.30 a.m. PW-19 deposed about the presence of the accused in the custody of SI Vijender(PW-14) and HC Kamal (PW-1). He deposed that constable Chander Prakash (PW-12) was sent to the house of the deceased who returned with her brother namely Kulwinder (PW-9) who identified the accused present on the spot. It is relevant to note here that neither Kulwinder (PW-9) nor constable Chander Prakash (PW-12) deposed anything in this regard.
49. PW-19 further deposed that the accused had handed over two mobile phones, one of Make Samsung belonging to Reena (deceased) and the other of Make Tata belonging to the accused. Both the mobile phones were taken into possession vide seizure memo Ex.PW-1/E. In his cross-examination also, PW-19 reiterated that both the mobile phones were seized vide single seizure memo which was prepared between 2 a.m to 3.30 a.m. It goes to imply that according to PW-19, the accused was present on the spot at the relevant time and had handed over the mobile phones to PW-19 which were seized vide seizure memo Ex.PW-1/E. In seizure memo Ex.PW-1/E, it is mentioned that the Sessions Case No. 56471/16 Page 37/52 accused handed over two mobile phones -one black coloured, Make Tata Indicom 'HUAWEI' with SIM no. 92116 48595 and IMEI/MEID no.
-A0000033134D99 and the other white coloured Make Samsung CE0168, belonging to the deceased. It is also mentioned therein that the accused used to talk with Reena (deceased) on phone number 98915 93067 and 82853 83307.
50. The prosecution led the evidence pertaining to call details record (CDR) of all the afore-mentioned three mobile phone numbers by examining Sh. Pawan Singh, Nodal Officer of Idea Cellular Ltd (PW-11), Shri Rajiv Ranjan, Nodal Officer, Tata Tele Services (PW-15) and Sh. Shishir Malhotra, Nodal Officer, Aircel Ltd (PW-16). Their testimonies are referred as under:
51. Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd (PW-11) proved the CDR record of mobile no. 98915 93067 for the period 1.10.2012 to 1.12.2012 Ex.PW-11/A. PW-11 also got exhibited customer application form (CAF) of the said mobile number Ex.PW-11/B, which is in the name of Kulwant Kumar Election I-card of the customer Ex.PW-11/C Sessions Case No. 56471/16 Page 38/52 and the certificate under Section 65-B of the Indian Evidence Act,1872 Ex.PW-11/C.
52. Sh. Rajeev Ranjan, Nodal Officer, Tata Tele Services Ltd. (PW-15) proved the CAF in respect of mobile no.92116 48595 alongwith I.D proof i.e driving licence issued in the name of Sh. Vivek Sharma vide Ex.PW-15/A. PW-15 deposed that he had handed over to the police, the CDR of the said mobile number for the period from 1.10.2012 to 1.12.2012 vide CDR Ex.PW15/B, certificate under Section 65-B of the Indian Evidence Act,1872 Ex.PW-15/C and forwarding letter Ex.PW-15/D. PW-15 also proved Cell I.D/Location Chart of the said mobile phone from the period 1.10.2012 to 1.12.2012 vide Ex.PW-15/E. He further deposed that he had handed over to the police the record of cell ID of the said mobile number dated 28.11.2012 vide Ex.PW-15/F and fowarding letter in respect of the cell I.D vide Ex.PW-15/G.
53. Sh. Shishir Malhotra, Nodal officer, Aircel Ltd. (PW-16) proved the CAFof mobile no. 82853 83307 alongwith I.D proof i.e Voter I.D Card issued in the name of Ms. Reena vide Ex.PW16/A. PW-16 Sessions Case No. 56471/16 Page 39/52 deposed that he had handed over to the police CDR in respect of the above-said mobile phone for the period from 16.11.2012 to 30.11.2012 vide CDR Ex.PW-16/B, the certificate under Section 65-B of the Indian Evidence Act,1872 vide Ex.PW-16/C, Cell I.D/Location Chart of the above-said mobile phone for the search period from 16.11.2012 to 30.11.2012 vide Ex.PW-16/D and forwarding letter vide Ex.PW-16/E.
54. As per the testimonies of afore-mentioned witnesses, mobile phone number 98915 93067 was registered in the name of Kulwant Kumar (PW-6) who is one of the brothers of Reena (deceased) and who had also deposed that the said number was used by Reena (deceased). Mobile phone number 92116 48595 was registered in the name of Vivek Sharma (PW-5), brother of the accused who deposed that this number was used by his family members as and when required and mobile phone number 82853 83307 was registered in the name of Reena (deceased).
55. As per the prosecution version, the accused was using the mobile phone Make Tata Indicom with Sessions Case No. 56471/16 Page 40/52 SIM number 92116 48595 and the accused used to talk with Reena (deceased) on mobile phone numbers 82853 83307 and 98915 93067. As per the testimony of PW-19, the accused handed over his mobile phone Make Tata Indicom with SIM No. 92116 48595 and another mobile phone Make Samsung belonging to Reena (deceased) while he was present on the spot on 29.11.2012 between 1.30 to 3.30 a.m. There is no material available on record to indicate if the mobile phone Make Samsung belonging to Reena (deceased) was with any SIM card therein or not.
56. As per the CDR Ex.PW-15/B pertaining to mobile phone number 92116 48595 purportedly in use of the accused, on 28.11.2012 there were calls made between the mobile phone number 92116 48595 and 98915 93067 (purported to be in use of Reena (deceased) ) till 18:07:53. As observed earlier, the mobile phone number 98915 93067 was registered in the name of Kulwant (PW-6) who never deposed that the said number was with the deceased on 28.11.2012 though he stated that she would use that number. Further, as per CDR Sessions Case No. 56471/16 Page 41/52 Ex.PW-15/B, no calls were made on 28.11.2012 between mobile phone number 92116 48595 and 82853 83307 (registered in the name of Reena (deceased).
57. Another interesting point as revealed from CDR Ex.PW-15/B is that on 30.11.2012, one SMS was sent from mobile number 72064 76715 to mobile phone number 92116 48595 at 20:06:24 when as per the testimony of I.O (PW-19) the mobile phone with SIM number 92116 48595 was lying deposited in police Malkhana. There is no explanation available on record how the afore- mentioned SMS was sent on the mobile phone number 92116 48595. Nor any investigation was carried out by the I.O in respect of mobile phone number 72064 7615.
58. Next, as per CDR Ex.PW-16/B pertaining to mobile phone number 82853 83307 ( registered in the name of Reena (deceased) ), call was made to number 91-11647 12641 on 30.11.2012 at 18:01:55 which again rules out the probability of the aforesaid mobile number to be in use by Reena (deceased). Even on 29.11.2012, a call was made from 82853 Sessions Case No. 56471/16 Page 42/52 83307 to 98915 93067 at 21:53:19 with Cell ID location of 9951 which as per location chart Ex.PW- 16/D refer to 64-A, main chowk, Badarpur, New Delhi. Further, another call was also made from 82853 83307 to 98915 93067 on 30.11.2012 at 13:57:54 which also remained un-explained.
59. In the light of above-referred analysis of CDRs, it is clear that there is no evidence available on record to establish that when the accused handed over two mobile phones-one belonging to himself and the other belonging to Reena (deceased) - to the I.O (PW-19) at the spot on 29.11.2012 between 1.30 to 3.30 a.m, whether the phone of Reena (deceased) was without any SIM card or SIM card was there. As per the prosecution case, Reena (deceased) would use either of the two mobile number i.e 9891593067 and 8285383307, but as per the CDR Ex.PW-11/A and Ex.PW-16/A of the said phone numbers respectively, both the numbers were being used even after her demise. The above-mentioned circumstance again makes the presence of the accused on the spot on the relevant date and time highly improbable.
Sessions Case No. 56471/16 Page 43/5260. At this juncture, the defence taken by the accused need to be referred.
61. In support of his defence, the accused got examined Sh. Sushil Kumar (DW-1), Smt. Neelam (DW-2) and Sh. Mukesh Kumar Sharma (DW-3).
62. Sh. Sushil Kumar (DW-1) deposed that on 29.11.2012, at about 10 a.m., he was present at his home. Two police officials had come to his house and enquired about the house of Braham Dutt, who possesses a while coloured Maurti car. DW-1 informed that Braham Dutt is residing in front of his house. The police officials told him that his car had met with an accident and was stationary at P.S Uttam Nagar. DW-1 accompanied the police officials to house of Braham Dutt, where accused Om Dutt, son of Braham Dutt, was present. Both the police officials took the accused with them on their motorcycle. DW-1 further deposed that after that he came to his house and in the evening he came to know through Braham Dutt that one murder case had been lodged against accused Om Dutt.
63. Smt. Neelam (DW-2) deposed that on 29.11.2012 at about 10 a.m, she was cooking food in Sessions Case No. 56471/16 Page 44/52 the kitchen, when she heard knocking at the gate. On opening the gate, she found two policemen at the door who were enquiring about the house of Braham Dutt. DW-2 told the police officials that his house was situated in front of her house. DW-2 accompanied the police officials to the house of Braham Dutt. Braham Dutt was not present. The police officials enquired about Om Dutt and asked him to accompany them to the police station as his car had met with an accident. DW-2 further deposed that the police officials had taken Om Dutt on their motorcycle and later, she came to know that one murder case had been lodged against Om Dutt.
64. Mukesh Kumar Sharma (DW-3) deposed that on 29 of a month, in the year,2012, he had received a telephonic call of one police inspector at about 11 a.m asking him to come to the police station Uttam Nagar. Therefore, he had gone to the police station where his nephew namely Om Dutt was sitting. DW- 3 was informed about the arrest of his nephew. DW-3 further deposed that Inspector Vijender asked him to sign on some papers showning the arrest of the accused at about 4 a.m. DW-3 inquired from Sessions Case No. 56471/16 Page 45/52 Om Dutt who told him that he was picked from his house by the police officials at about 10 a.m. DW-3 did not sign on the papers and asked the police officials to mention the time of 10 a.m instead of 4 a.m on those papers which was not done by the police officials.
65. All the three defence witnesses were cross- examined by learned Additional Public Prosecutor at length, however, the testimony of DW-1 and DW-2 regarding the police officials taking the accused from his house on 29.11.2012 at about 10 a.m could not be impeached satisfactorily and remained intact. Moreover, Sh. Vivek Sharma (PW-5) had also deposed on 14.7.2014 that police officers had come to his house on 29.11.2012 at around 10 a.m and had taken the accused with them to the police station. In his statement recorded under Section 313 Cr.P.C, the accused also stated that he was picked up by the police officials from his house on 29.11.2012 at around 10 a.m. Therefore, the defence of the accused has remained consistent which runs counter to the prosecution version of accused being present at the spot on the relevant date and time.
Sessions Case No. 56471/16 Page 46/5266. To further prove the investigation, the prosecution got examined the following witnesses, however, a perusal of their testimonies reveal that no incriminating evidence against the accused could come in their testimonies which are referred as under:
67. Constable Ankur (PW-17) had made the departure entry of the staff members on 29.11.2012 in the Roznamcha against DD No.2B Ex.PW-17/A.
68. HC Jagdish (PW-2), the Duty Officer, had received rukka from constable Harender at about 2.45 a.m on 29.11.2012 which was sent by SI Vijender Singh on the basis of which he recorded an FIR 498/12, under Section 302 IPC. He also produced the computerised copy of FIR Ex.PW-2/A and certificate under Section 65-B of the Indian Evidence Act, 1872 Ex.PW-2/B. He had also made endorsement on rukka Ex.PW-2/C. He further produced the DD register containing DD No.2A dated 29.11.2012 Ex.PW-2/D.
69. Constable Mohit Dhariwal (PW-4) deposed that on 29.11.2012, at about 3.15 p.m, the Duty Officer, gave him copies of FIR No.498/12 with the Sessions Case No. 56471/16 Page 47/52 instruction to deliver it to DCP (W), Joint C.P. (W) and Illaqa M.M. which were delivered by him.
70. Inspector Mahesh Kumar (PW-18) had prepared the scaled site plan Ex.PW-18/A on 20.2.2013 after taking rough notes and measurement at the instance of HC Kamal (PW-1) which was handed over by him to the I.O.
71. Sh. Braham Dutt (PW-8) father of the accused was also examined who deposed about being the owner of Maruti-800 car bearing registration no. DL 4CQ 1232 which was used to be driven by his sons namely Om Dutt (accused), Vivek and Kuldeep. PW-8 could not tell who was driving the said car in the intervening night of 28/29-11-2012 as he was out of Delhi. PW-8 was also cross-examined by the learned Additional Public Prosecutor for the State wherein he denied to have made any statement to the police on 29.11.2012 to the effect that his son Om Dutt (accused), was driving the car on 28.11.2012 from 6.30 p.m onwards. PW-8 further denied the suggestion about his statement to the I.O that his son had not returned to the house in the intervening night of 28/29-11-2012. The photographs Sessions Case No. 56471/16 Page 48/52 Ex.PW-3/A-1 to Ex.PW-3/A-2 were shown to him and after seeing the photographs, PW-8 admitted that the Maruti car Ex.P-1 shown therein belonged to him.
72. Dr. Komal Singh, Head of Department, Forensic Medicine, DDU hospital (PW-10) had conducted the postmortem examination on the dead body of deceased Reena vide postmortem report Ex.PW-10/A. The cause of death was opined to be asphyxia caused by constricting force over the neck made by ante-mortem ligature strangulation and such constricting force was sufficient to kill the person in ordinary course of nature. The manner of death was opined to be homicide and the time since death was opined to be approximately 12 hours prior to the postmortem examination.
73. In view of the above-discussed facts and circumstances, it is established that Reena, Daughter of late Joginder Kumar, Resident of B-56, Anand Vihar, Uttam Nagar, Delhi, died in the intervening night 28/29-11-2012. The dead body of Reena (deceased) was duly identified by her brothers namely Kulwant (PW-6) and Kulvinder Kumar (PW-
Sessions Case No. 56471/16 Page 49/529) vide identification statement Ex.PW-6/A and Ex.PW-9/A. The dead body of Reena (deceased) was handed over to her above-named brothers vide memo Ex.PW-6/B for cremation. As per the testimony of Dr. Komal Singh (PW-10), who proved postmortem examination report Ex.PW-10/A, the manner of death was homicide. In the light of afore-mentioned analysis of testimonies of prosecution witnesses, especially, H.C Kamal Singh (PW-1), constable Harender Kumar (PW-13) and ACP Ashok Kumar (PW-19), there are serious doubts in the prosecution version about the presence of the accused on the scene of crime at the relevant date and time.
74. As per the settled prepositions of the law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should Sessions Case No. 56471/16 Page 50/52 be adopted. (Reliance placed on Kali Ram v. State of Himachal Pradesh (1973), 2 SCC, 808 and Upender Pradhan v. State of Orissa (2015), 11 SCC, 124).
75. Keeping in view the settled principles regarding burden on the prosecution to prove its case beyond all reasonable doubts, in my considered opinion, the onerous duty cast upon the prosecution could not be discharged in the present case where the presence of the accused on the scene of crime at the relevant date and time could not be established conclusively despite the eye-witnesses account of HC Kamal Singh (PW-1) and constable Harender (PW-13). The prosecution, therefore, miserably failed to establish that it was the accused and only the accused who committed murder Reena (deceased) by strangulation inside his car on the relevant date and time. All the points for determination are accordingly decided. I, therefore, extend the benefit of doubt to the accused and acquit him. The accused Om Dutt S/o Sh. Braham Dutt, accordingly, stands acquitted.
76. The family members of Reena (deceased) are referred to District Legal Service Authority, West, Sessions Case No. 56471/16 Page 51/52 for consideration of suitable compensation amount.
77. Bail Bonds under Section 437A Cr.P.C was furnished by the accused with photo and residential proof of the surety.
78. File be consigned to Record Room.
(Pronounced in the open Court (Kuldeep Narayan) on 22-07-2017). Additional Sessions Judge (Pilot Court) West : Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 56471/16 Page 52/52