Delhi District Court
State vs . Ram Kumar @ Balu on 10 December, 2014
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGEIII: NORTH DISTRICT
ROHINI COURTS: DELHI
SC No. 43/14
FIR No. 190/10
P.S.Kanjhawla
U/s 302 IPC
ID No. 02404R0029442011
State Vs. Ram Kumar @ Balu
S/o Sh. Sube Singh
R/o Village and P.O Ladpur, Delhi.
Date of institution : 11.02.2011
Date of reserving the judgment : 04.12.2014
Date of judgment : 10.12.2014
JUDGMENT
1. The accused is facing charges before this court u/s 302 IPC to the effect that in the intervening night of 16/17.01.01, at unknown time in the night, in the agriculture fields of village of Ladpur, Nizampur (wrongly written as Nizammuddin in the charge dated 23.02.11) near Jai Dada Pobaraha Piyauu within the jurisdiction of PW Kanjhawla, he intentionally committed murder of one Satish s/o Mahender Singh by causing injury on his head with stone.
State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 1/24
2. The story behind the framing of charge is that the police official of PS Kanjahawla received information vide DD NO. 9A Ex. PW23A that one dead body was lying near Ladpur Piyauu. The police team arrived at the spot and rukka Ex. PW18/A was sent by PW18 ASI Rawat Singh upon which the present FIR was registered, wherein he reported to the Duty Officer that upon receipt of DD No. 9 A Ex. PW23/A, he along with PW2 Ct. Jogender and one Ct. Jitender reached at the spot at Dada Paubara Piyauu where a dead body was found lying in a tank meant for providing water to the animals. The dead body was reported to be a male around 3738 yrs. The dead body was inspected by the police team wherein it was found that there was a deep injury mark and there was presence of blood, right eye was found swelled with blue spot and there were blood stains on the forewalls of the said water tank. One payjama was also found at the spot beside other articles. The PW15 Rakesh identified the dead body to be the dead body of his elder brother Satish. Crime Team was called by the police and the investigation proceeded.
3. During investigation, the wife of the deceased PW4 Krishna, brother of the deceased PW15 Rakesh and one native of the deceased PW3 Jitender made their respective statements before the police.
4. The PW4 Krishna/wife of the deceased had made statement before the police on 17.10.10 that on 16.10.10 at about 5.00 pm, the accused State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 2/24 Ram Kumar had visited her house and asked her husband Satish/deceased to accompany him for an outing. The deceased Satish drove away with accused Ram Kumar on his motorcycle on the pillion seat of the motorcycle. The deceased was also stated to be carrying his mobile phone no.9818966169 and around Rs. 150/200 with him. The deceased did not return on that night and the PW4 Krishan/wife of the deceased kept waiting throughout night.
5. On 17.10.10 at 6.30 am, PW4 Krishna/wife of the deceased came to know that a dead body of deceased was lying in the water tank, but the motorcycle or mobile could not be found. The PW4 Krishan/wife of the deceased raised her suspicion on accused Ram Kumar @ Balu after narrating background story to the effect that in the year 2003, the accused Ram Kumar had eveteased PW4 Krishna/wife of deceased for which a case was registered against him, but later on the matter was settled. It was informed to the police by said PW4 Krishna/wife of deceased that for these reasons the accused used to keep ill will against her husband.
6. On the same day i.e. on 17.10.10 itself, one Rakesh made statement before the police that on 16.10.10 while he was coming back to his village in his own vehicle, at about5.30 pm while he reached near Nizampur village he saw that his elder brother Satish/deceased was going towards Bamroli village on his motorcycle with accused Ram State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 3/24 Kumar as pillion rider. Again on 17.10.10 at about 06.00 hours while he was roaming near Ladpur Nizampur road, he saw that many public persons had gathered over there and one dead body was lying in a water tank meant for providing water for the animals. The dead body was having injuries. The said Rakesh further stated to the police that he made a call to PCR by taking the phone of one passerby and police arrived at the spot. He also identified the dead body at the spot.
7. The third last seen witness was one PW3/Jitender who made statement to the police on 17.10.10 itself, that while he was coming back to his home on 16.10.10 on his motorcycle and while at about 8.309.00pm he reached near a Theka/Wine shop Bamdoli village, he saw that the native of this village/accused Ram Kumar @ Balu was having scuffle with the deceased. The said Jitender tried to counsel the parties and asked them to go back to their respective homes. Both were stated to be in drunken state. On 17.10.10 the said Jitender came to know that the dead body of deceased was lying the water tank.
8. Statement of Chande who is also claimed to be one of the witness to the last seen was recorded by the police on 17.10.10 that he used to run an egg rehdi shop front of theka (wine shop). As stated to police that on 16.10.10 at about 6.00 pm, accused Ram Kumar @ Balu and State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 4/24 deceased Satish had come to take liquor at the said wine shop at black colour motorcycle and had taken drinks at his rehdi. At about 8.309.00 pm, both of them started quarreling with each other, in the meantime, one boy who came on motorcycle tried to pacify both of them and asked them to go home and thereafter he left. Ignoring the advise of that boy, both the accused and the deceased again started taking drinks. At about 11.0011.15 pm, altercation again took place and both started abusing each other and finally left on motorcycle towards ladpur road.
9. These four witnesses were the last seen witnesses, the prosecution has relied upon, but could produced only three of them besides the other formal witnesses in order to substantiate the charges against the accused Ram Kumar.
10.In order to substantiate its case the prosecution produced as many as 23 witnesses. The statement of accused was also recorded and thereafter the accused produced two witnesses in his defence.
11. The Ld. counsel for the accused vehemently argued that all the last seen evidence has been manipulated by the police. The Ld. counsel has made me go through the testimonies of last seen witnesses i.e. wife of the deceased as PW4 and also the others like PW3 Jitender and PW15 Rakesh. Ld. counsel urged that another last seen witness PW Chande has not been produced by the prosecution deliberately. It State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 5/24 was highlighted that PW4 Krishna/wife of the deceased has specifically mentioned in her statement before this court that the accused Ram Kumar and one other person Vijay came to her house on 16.10.10. The accued Ram Kumar came inside the house whereas the said Vijay remained outside her house. When she inquired from her husband/deceased as to where he was going to which her husband replied that he would shortly come back, meaning thereby the deceased as per prosecution story had left with two persons namely accused Ram Kumar and Vijay. Surprisingly, as per Ld. counsel there is no mention of the said Vijay in the entire chargesheet, neither he has been arrayed as an accused or a witness. He further argued that in the cross examination of PW4/Krishna/wife of deceased, she has specifically mentioned that when the deceased did not turn up, she and her brotherinlaw Rakesh went to the house of Jitender to know about the whereabouts of her husband but the PW3 Jitender informed the PW4 Krishna that he had not seen the deceased for last one week. The PW4 Krishna also asked from PW15 Rakesh as to whether he had seen him to which the said Rakesh told her that he had not seen him for the last two days. He stated that the testimonies and statement of PW15 Rakesh, PW3 Jitender and PW4 Krishana are false. As regarding PW4 Krishna she specifically stated that truth has come in her cross State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 6/24 examination.
12.He further argued that the mobile phone of the deceased has not been recovered despite the fact that the PW4 Krishan had stated to the police that the deceased had taken mobile phone. He also apprised this court that the police had not collected any CDR of mobiles of PW3 Jitender or that of PW15 Rakesh in order to satisfy itself that in fact the last seen witnesses were present at the places at which they had allegedly last seen the deceased with the accused.
13.Ld. counsel has relied upon Sharad Birdhichand Sards Vs. State of Maharashtra, AIR 1984 SC 1622, Vijay Singh Vs. State, CR. APP No. 819/12, Laxman @ Janga Vs. State, 2013 (1) JCC 347, Ravi Kumar @ Sonu & Ors Vs. State 2013 (2) JCC 1394, DHC, Vikramjeet Singh @ Vicky Vs. State of Punjab, 2006 (12) SCC 306, 2007 Cri. LJ 1000 and Arjun Marik & Ors Vs. State of Bihar, MANU/SC/1037/1994.
14.Per contra Ld. APP submitted that there are three last seen witnesses and motive to commit the offence is proved as to be the previous enmity i.e. case registered against the accused by the family of deceased i.e. by PW/Smt Krishan. The deadbody was found in the piyauu which is situated in the fields of Sube Singh who is father of accused Ram Kumar @ Balu. Efforts were made by the prosecution to trace the last seen witness Chande who used to sell eggs near the liquor shop where last time accused and deceased were seen State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 7/24 quarreling. The last seen witness Chande was summoned, but his wife and he himself refused to take the summons even before the chowkidar of his village. Thereafter, NBWs were obtained against Chande through SHO and Inspector Puran Pant, but they failed to execute the same.
15.I have heard the Ld. counsel for the accused as well as the Ld. APP and have perused the record.
16.After perusal of record, it is clear that the case is based purely on circumstantial evidence and no direct evidence is available. No one had seen the accused killing the deceased. Hence this court would discuss the entire chain which led to involvement of accused Ram Kumar by the police.
17. Whether the death of deceased Satish was homicidal? First of all, the prosecution was under bounded duty to prove that the death of the deceased was homicidal and not natural one. In order to prove the same, the prosecution produced PW7 Dr. Manoj Dhingra wherein he proved the Postmortem report Ex. PW7/A. The cause of death is reported to be craniocerebral damage consequent to blunt force impact to the head. All injuries were stated to be antemortem in nature and the time since death was reported to be approximately 12 hrs. Accordingly, it is clear that the death of the deceased was homicidal and not natural. The doctor handed over the viscera to IO. State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 8/24 The postmortem report suggests that the postmortem was done at around 2 .00 pm on 17.10.10.
18.Identity of the deceased The deceased was identified by PW5 Mahender Singh/father of deceased wherein he categorically deposed before this court that he had seen the deadbody of his son at SGM Hospital Mortuary and had identified his body correctly. He stated that after the postmortem of the deadbody of his son, it was handed over to his another son Rakesh for last rites. Accordingly, it is clear that the dead body was that of Satish s/o Mahender Singh.
19.Last seen evidence It has been claimed by PW4/wife of the deceased on oath before this court that she had seen her husband last time on 16.10.10 at about 6.006.30 pm when the accused Ram Kumar and Vijay had come to her house. The accused Ram Kumar came inside the house, but other person Vijay remained outside. The deceased left with accused Ram Kumar asking the PW4 Krishna that he would come shortly. The other last seen witnesses produced by the prosecution namely PW15 Rakesh/brother of deceased deposed before this court that at about 5.30 pm on 16.10.10 when he reached village Nizampur, he saw that his elder brother Satish was going towards village Bamdoli on his motorcycle and the accused was sitting on the pillion seat. The third State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 9/24 last seen witness produced by the prosecution was PW3 Jitender wherein he also deposed before this court that on 16.10.10 while he was going on the motorcycle and about 8.309.00 pm when he reached near one wine shop of village Bamdoli, Distt. Jhajjar, he saw Ram Kumar @ Balu with one Satish who he claimed to be the native of his village were taking liquor near the wine shop. An altercation was going on between the accused Ram Kumar and deceased Satish. The PW3 Jitender stopped his motorcycle and requested them to leave that place, but they said that they would come later on. It was specifically mentioned by PW3 Jitender that deceased Satish and Ram Kumar were under the influence of liquor and he left the spot.
20.The fourth last seen witness Chande claimed by the prosecution to have seen the deceased and the accused at wine shop on 16.10.10 at 11.0011.15 pm could not be produced by the prosecution despite opportunities.
21.As came up during the arguments advanced by the Ld. counsel for the accused, during her cross examination the PW4 Krishna/wife of deceased specifically mentioned the fact that she waited for her husband for the whole night on 16.10.10, but he did not turn up. She further stated on oath that she asked the PW15 Rakesh (who is her brother in law) about her husband, but he told PW4 Krishana that he State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 10/24 is not having knowledge about him. It was also deposed that her husband/deceased used to go to the house of PW3 Jitender for playing cards. She and her brother in law (Dewar) PW15/Rakesh visited the house of PW3 Jitender to ascertain the whereabouts of her husband on which the PW3 Jitender told them that he had not seen the deceased for the last one week (Chachi maine to use eak hafte se nahi dekha). She again asked her brother in law PW15 Rakesh as to whether he had seen her husband, on which the said PW15 Rakesh replied that he had not seen the deceased for the last two days. Accordingly, in her cross examination, as per the PW4 Krishna, on 16.10.2010 itself both the PW3 Jitender and PW15 Rakesh in clear terms told her that they had not seen the deceased Satish for the last two days or more than two days.
22.The PW4 Krishan in her cross examination had further mentioned the fact that on 16.10.10 she had left her house for going to a gher (open place) at about 4.005.00 pm in order to feed the buffaloes and milking. When she returned at about 6.006.15 pm she saw that her husband was not present at the house. The said gher (open place) was deposed to be at a considerable long distance from the house of PW4 Krishna. When she returned, her father in law Mahender told her at about 6.30 pm that her husband/deceased Satish had left his house along with Ram Kumar at about 6.00 pm. Upon a specific State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 11/24 question being put by Ld. counsel for the accused, as to whether her father in law Mahender told her about the leaving of deceased Satish with accused Ram Kumar on the basis that he (Mahender) himself had seen them or on the basis of getting information through someone else, the same was replied by PW4/Krishna/wife of deceased to be as someone had told this fact to her father in law Mahender regarding leaving of her husband with accused Ram Kumar.
23.From the testimony of PW4 Krishna/wife of deceased it is clear that the PW4 Krishna/wife of deceased in her cross examination resiled or improved her version on two counts. The first count that PW3 Jitender and PW15 Rakesh had not met the deceased for the last two days or more before getting information about death of deceased and the second count regarding her being a witness to the last seen of the deceased leaving with the accused Ram Kumar. In the examination inchief, she had claimed that she had seen the deceased leaving on motorcycle with accused Ram Kumar, but in her cross examination, she deposed otherwise as discussed herein above.
24.After getting permission from this court upon an application being moved by the prosecution for cross examination of PW4 Krishna/wife of deceased w.r.t new fact disclosed by her in her cross examination on 03.10.12, the PW4/Krishna/wife of deceased was cross examined State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 12/24 by Ld. APP at length, wherein she stated that version as recorded in her examinationinchief recorded on 31.01.2012 was correct and her deposition (cross examination by Ld. counsel for the accused) is not correct. She stated that she could change her version on 03.10.12 as her son was seriously ill and was admitted in hospital and also because the accused had threatened her upon which, the Ld.counsel again cross examined the witness wherein she again stated that even on the day of cross examination by Ld.APP, her son was suffering from same ailment. She also could not specify the date, month on which she was threatened or that as to who threatened her as she claimed that she was threatened at her home when someone was sent to her house by the accused. She even didn't tell any of her neighbouer, police official and court that she could change her version due to threats. She had not seen the person who had extended threats. The threat was not given in anybody's presence.
25.The cross examination by Ld.APP was carried after getting permission from the court after a gap of around 1 ½ year. In case the PW4 could have got threats before her cross examination was being carried by Ld.APP,she had ample opportunities even after completion of her cross examination by Ld.counsel for the accused to divulge the same either before the authorities or before her family members. She has specifically mentioned that she had not told any State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 13/24 family members, neighbouers, relatives, police officials or court officers that she had changed her version due to threats. She never claimed any security or confided to anyone regarding threats.
26.PW23/Inspector Mahesh Meena stated in his cross examination that when he reached at the spot, the brother of the deceased namely Rakesh/PW15 was already present over there beside the wife of the deceased/PW4 Krishan, Father of the deceased PW5 Mahinder and one other person PW3/Jitender amongst the other public persons. It was specifically mentioned by the PW23/Inspector Mahesh Meena that no last seen fact was told by the any of the witnesses at the spot till he remained there. As per PW23/Inspector Mahesh Meena, the FIR had to be lodged on the basis of DD because no clue w.r.t last seen fact came to his knowledge. He further deposed that in the morning of 17.10.10 when he met PW15/Rakesh and PW3/Jitender, they did not tell anything about the last seen fact of the deceased and they could made their statement regarding the last seen fact only after the postmortem. He categorically deposed that even the PW4 Krishna/wife of deceased did not make any statement in the morning at the spot when he met her firstly and made inquiries.
27. Accordingly the last seen factor itself has come under scanner as firstly the PW4 Krishna/wife of the deceased improved and modified her earlier version during her cross examination contrary to what ever State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 14/24 she had deposed in the examinationinchief regarding the last seen fact. As per the judgment of the Hon'ble Supreme Court of Indian in Vikramjeet Singh @ Vicky Vs State of Punjab (2006)12 SCC 306 that in case the prosecution witnesses have turned hostile, it may be an act of dishonesty on their part, but by reason thereof it can not be held that the accused is guilty of heinous offence. The Hon'ble Supreme Court of India in para 10 later part of the said judgment held as under
"furthermore, as noticed hereinbefore, the prosecution witnesses have turned hostile. It may be an act of dishonesty on their part as contented by Mrs. Kochar, but by reason thereof only we cannot hold the appellant guilty of commission of a heinous offence. In view of their statements in the cross examination giving a complete go bye to what had been stated in the examination in chief, it is not possible to rely even upon a part of their statement.
28.The IO also could not corroborate the last seen fact in his cross examination. As already discussed he deposed before this court that when he went to the spot, no person including PW4 Krishana/wife of deceased,PW3 Jitender & PW15 Rakesh could inform him about the State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 15/24 last seen persons seen with the deceased prior to his death. They could inform the IO only after the postmortem and cremation of the deceased. Moreover no CDRs details of the PW3 Jitender & PW15 Rakesh had been obtained by the IO in order to establish there very presence at the places they had claimed themselves to be present when they had last seen the accused with the deceased. Though the prosecution had arrayed the name of a witness namely Chande to be the last person who had seen the deceased with the accused at the wine shop where the said witness Chande is reported to be running egg rehdi, but said Chande has not been produced by the prosecution.
29.The last seen theory further comes into doubt as the witness PW3 Jitender though had categorically mentioned that the deceased and the accused Ram Kumar were taking liquor while they were quarreling with each other, no such evidence regarding presence of liquor in the body of deceased came up during the examination of viscera by the FSL authority Ex.PW22/H where it has been mentioned that on chemical and PMC examination the metallic poisons, ethyl or Methyl alcohol etc could not be detected. Therefore the fact that the PW3 Jitender had seen the deceased taking liquor at the wine shop with the accused also enters the doubt box. Moreover, all the witnesses belong to the same family group. State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 16/24
30.Hence the prosecution has not been able to prove beyond doubt that PW4 Krishna/wife of deceased, PW15 Rakesh & PW3 Jitener had lastly seen the deceased leaving with accused.
31.Recovery of weapon of offence Pursuant to the disclosure statements of the accused Ex. PW17/A, the accused Ram Kumar led the police party to the place of incident after his arrest and got recovered one blood stained stone from the bushes. The said stone was sealed vide seizure memo Ex. PW17/C. The FSL report Ex. PW22/E suggests that blood was detected on one stone having brown stains. .However, the biological examination of the said stone exhibited no reaction and hence it was not opined as to whether the blood on the stone was human blood. Accordingly, though blood stained weapon of offence i.e. stone was recovered pursuant to the disclosure statements made by the accused, but the prosecution could not prove that the blood stains on the stone were that of the deceased. No other weapon of offence etc. was recovered.
32.Recovery of mobile phone of the deceased and the motorcycle of the deceased .
The PW4 Krishan/ categorically mentioned in her statements on oath before this court as well as before the police that her husband/deceased had taken mobile phone while leaving with State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 17/24 accused Ram Kumar. The police has not been able to provide any evidence regarding said mobile as the same has neither been recovered by the police nor the police have filed the CDR of the same.
33.Regarding the recovery of motorcycle, the PW17 SI Ashok Kumar stated before this court that after the arrest of the accused, pursuant to this disclosure statement, the accused led the police party to Girls School, Kanjhawla chowk and got recovered the motorcycle of the deceased having registration no. DL8S AK 6041, make Platina, Black colour, from the road near the gate of the school. The said motorcycle was seized vide seizure memo Ex. PW17/D. The bare perusal of the seizure memo Ex. PW17/D does not anywhere go to suggest that on which date the said recovery of motorcycle was effected from near the girls school. The said seizure memo Ex.PW17/D does not carry any date and simply mentions the date of FIR as 17.10.10. Further contrary to whatever has been deposed by PW17, the PW5 Mahender Singh/father of deceased stated in his cross examination that first of all his grand son Honey saw the dead body of his son Satish and his motorcycle lying near the deadbody. All these factors leads to doubt the prosecution story regarding recovery of motorcycle from near the girls school. State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 18/24
34.Motive and counter motive It has been asserted by the PW4 Krishna/ wife of deceased as well as other PWs that previously FIR was registered against the accused Ram Kumar on the basis of complaint made by victim party w.r.t eve teasing of the PW4 Krishna/wife of deceased by the accused Ram Kumar. The PW15/Rakesh categorically mentioned in his examinationinchief that in October 2003, the accused Ram Kumar entered his house and molested PW4/Krishna/wife of deceased and an FIR was lodged in this regard at PS Kanjhawla. Later on, the aforementioned matter was compromised in the village panchayat. The same fact was deposed by PW4/Krishna/wife of deceased where she stated that around 78 yrs ago, the accused Ram Kumar had done some obscene act with her for which a case was registered against him, but the same was compromised. It was also mentioned by PW4/Krishna that thereafter the accused Ram Kumar was behaving normally with her family, but since they had got a case registered against accused Ram Kumar, he was having a grudge against her family.
35.The aforesaid testimony goes to suggest that an FIR against the accused regarding the obscenity qua PW4 Krishna was registered in the year 2003. The murder of deceased took place in the year 2010. It was a long gap in between and one cannot be expected to retain State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 19/24 hostility on such trivial matter for quite a long time as it has also been admitted by PW4 Krishna that after the compromise entered into between the parties w.r.t FIR, the accused Ram Kumar was behaving normally. The plea of the Ld. APP that this may be the motive for murder somewhat appears to be not digestible keeping in view the long interval.
36.The accused party have raised a counter motive for falsely implicating him as to be the property dispute between the accused party as well as the complainant party. The PW5 Mahender/father of the deceased has stated in his cross examination and termed it to be correct that there was a dispute going on for the last long time between the family of Jogender and the family of the PW5 Mahender w.r.t plot. The said Jogender @ Gola was admitted to be as belonging to the family of the accused Ram Kumar. The IO/PW23 Inspector Mahesh Meena has also mentioned in his cross examination that no witness told him in any of their statements that there was a dispute over plot between the family members of accused or the members of the deceased, but he further stated that the family members of deceased voluntarily stated that the dispute was there, but there was no record available, that is why he did not bring the same on record. Accordingly, the possibility cannot be ruled out that owing the the property dispute, there may be hostilities in the minds State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 20/24 of complainant party against the accused.
37.Finger prints/chance prints
38.No finger prints of chance prints were lifted or comparison thereof has been filed. No clothes of the accused have been collected. No CDR of the witnesses showing their presence at the respective places has been filed by the police.
39.Recovery of dead body The dead body was recovered from a water tank meant for providing water to animals. The said plot where that water tank lies is stated to be belonging to the father of accused Ram Kumar. But recovery of dead body from the fields belonging to the father of accused does not ipso facto lead to conclusion that accused is liable for the murder when other evidence against him could not be substantiated by the prosecution.
40.Keeping in view all the aforesaid discussed evidence, I do not find substance in the arguments advanced by the Ld.APP that since the dead body was found from a place belonging to the father of accused, the accused has committed the murder as no other evidence against the accused is supporting the version of prosecution.
41. It is settled law that in case of circumstantial evidence, as held in Sharad Gati Chandra Vs. State of Maharashtra MANU/SC/0111/1984: State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 21/24
1984 CriLJ1738 following conditions must be fulfilled:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this court in Shivaji Sahabrao Vs. State of Maharashtra where the observations were made.
Certainly, it is primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be"
is long and divides vague conjectures from sure conclusions.
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. The circumstances should be of a conclusive nature and tendency,
4. they should exclude every possible hypothesis except the State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 22/24 one to be proved, and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
42.The case of the prosecution does not rise to an upper graph as the set of independent witnesses have not supported the case of the prosecution. The testimony of public witnesses, like wife and brother of the deceased appears to be in doubt coupled with the fact that they are interested witnesses.
43.It is a cardinal principle of law that in the criminal justice administration, the culprit is presumed to be innocent unless the presumption is rebutted by the State by producing evidence establishing his guilt beyond the shadow of doubt.
44.The prosecution version lacked the authenticity as no public witness was joined at any stage of the investigation and all the last seen witnesses were relating to the family of the deceased. The chain of circumstances to bring home the guilt of the accused was not so complete that the finger of accusation unerringly pointed towards the guilt of the accused.
45.As held by SC in Arjun Marik & Ors Vs. State of Bihar 1994 (1) State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 23/24 Crimes 777 (SC), para 31 that "it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and therefore, no conviction on that basis alone can be founded".
46.From all these circumstances, it appears that prosecution has miserably failed to prove its case beyond the shadow of doubt. Accordingly, I hereby acquit the accused of the offences charged with. Accused be released on forthwith if not required in any other case. Accused is directed to furnish bail bond in the sum of Rs. 10,000 with one surety in the like amount in compliance of section 437A CrPC within a week day from today.
47. After compliance, file be consigned to record room.
Announced in the Open Court (Sanjay Kumar Aggarwal)
On 10.12.2014 Addl. Sessions Judge(03)
North District, Rohini Courts
State Vs. Ram Kumar @ Balu FIR No. 190/10 Page No. 24/24