Delhi District Court
State vs Vishnu Bahadur on 15 November, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
SC No. 221/2020
CNR No. DLND010026152017
State Versus Vishnu Bahadur
S/o. Sh. Kishan Bahadur
R/o. C172, Kusumpur Pahari,
Vasant Vihar, New Delhi.
Also at
C232, CN, Kusumpur Pahari,
New Delhi.
FIR No.607/2016
PS : Vasant Kunj (North)
Under Section : 302/201/174A IPC
Date of Institution : 20.10.2020
Date of addressing arguments : 07.11.2022
Date of Judgment : 15.11.2022
Appearances:
Mr. Ravinder Khandelwal and Mr. Irfan Ahmad, Ld. Addl. P.Ps. for the
State.
Mr. Shafiullah, Ld. Counsel for the accused.
JUDGMENT:
FACTS:
1. Accused Vishnu Bahadur S/o. Kishan Bahadur, aged about 40 years, has been arraigned for trial by the prosecution on the allegation that:
Firstly, at some unknown time on 05th or 06th November, 2016, he committed murder of Vimal Kami, S/o. Late Bhim Bahadur, aged about 3040 years, by causing injuries on his body with a broken whisky glass bottle at his SC No.221/2020 State Vs. Vishnu Bahadur Page 1 of 29 House/Jhuggi No.C172, ground floor, Kusumpur Pahadi, Vasant Kunj, New Delhi as shown in the site plan Ex.PW3/A (scaled site plan Ex.PW10/A) within the jurisdiction of Police Station Vasant Kunj (North) and thereby committed an offence punishable under Section 302 of the IPC; and secondly, the accused has been also arraigned for committing an offence punishable under Section 201 of the IPC, as despite knowing or having reasons to believe that offence of murder has been committed, he cleaned the blood and gathered the pieces of broken glass bottle and threw away or destroyed his clothes which he was wearing at the time of incident and also locked the dead body inside his aforementioned tenanted accommodation; and thirdly, thereafter absconded away with his wife with the intention of screening himself or his wife from legal punishment, and accordingly, charged for committing an offence punishable under Section 174A of the IPC for his having been declared a proclaimed Offender under Section 82 of the Cr.P.C. Needless to state that the accused pleaded "not guilty and claimed trial".
FACTUAL MATRIX:
2. The case of the prosecution is that an information was recorded on 07.11.2016, at 14.12 hours, vide DD No.37A at Police Station Vasant Kunj (North), South District, Ex.A2 (also Ex.PW4/K) to the effect that some foul smell was emanating from a room/Jhuggi No.C172, ground floor, Kusumpur Pahadi, Vasant Kunj, New Delhi, which was locked from outside, which information was relayed by Ct. Satish No.2884, PCR from his mobile No.9953639303. The investigation was marked to SI Pradeep Rawat (since promoted as Inspector) and examined as PW4, who reached the place of SC No.221/2020 State Vs. Vishnu Bahadur Page 2 of 29 occurrence and found that the lock on the door of House/Jhuggi No.C172, ground floor, Kusumpur Pahadi, Vasant Kunj, New Delhi had been broke opened since foul smell was emanating from the room; and he met Hans Raj (PW3), aged about 53 years, who identified himself as the owner/landlord of House/Jhuggi besides finding police officials viz. Ct. Surender, HC Hukum Singh and Ct. Kuldeep from Police Station Vasant Kunj already present there.
3. It is the prosecution case that Hans Raj (PW3) revealed that he received a call from his tenant Lala Ram (PW2) that foul smell was emanating from the locked room/jhuggi and that he had broken the lock in the presence of some people residing in the vicinity and the PCR officials, and on visiting inside the room/Jhuggi, they found one dead body of an "unknown male"; which was later on identified as that of Vimal Kami S/o.
Bhim Bahadur R/o. Single Tea Estate, Dhora, PS Kurseng, Darjeeling, West Bengal on the basis of election Identity Card found in a black colored purse on search of the dead body.
4. It is the prosecution case that the dead body was lying on the floor with blood from the mouth and nose with lot of blood on his body and on the floor; and that the crime team was called to the spot which inspected the scene of crime inter alia taking few photographs; and that the dead body was in a highly decomposed state infected with worms due to mutilation but there was no visible injury seen as such; and that on the search of the dead body, one black purse was taken out which contained an Election Card which was in the name of Vimal Kami S/o. Bhim Bahadur R/o. Arabinda Colony, Madargachhi, Karandighi, Uttar Dinajpur besides two passport size SC No.221/2020 State Vs. Vishnu Bahadur Page 3 of 29 photographs, one pocket diary and Identity Card in the name of Vimal Kami S/o. Bhim Bahadur R/o. Village Draul, PO Karyari, Tehsil Sunni, District Shimla, Uttar Pradesh, which were seized vide memo Ex.PW4/C; and a blood stained brown pant that was being worn by the deceased was taken out and seized vide memo Ex.PW3/B and since no one was able to identify the deceased, his body was packed and sent to AIIMS hospital along with ASI Hukum Singh for preserving the body vide proforma application Ex.A4 for conducting the post mortem.
5. It is the case of the prosecution that investigation was done at the spot and blood stains lying on the floor were lifted from the spot with the help of gauze besides one quarter bottle (nip) seized besides the lock at the door of the jhuggi which was earlier broken by PW3 vide memos Ex.PW 4/A, Ex.PW4/B and Ex.PW4/E; and that since there were no visible marks on the dead body due to highly decomposed state, DD No.73B was recorded on 07.11.2016, at 10.30 PM, Ex.A5 and DD No.37A was kept pending so as to ascertain the cause of death that could only be found from the post mortem; and that in the meanwhile, the dead body was identified on 11.11.2016 by Nirmal Khati and Amar Khati, whose statements were recorded as Ex.PW4/F and Ex.PW4/G in the hospital; and the inquest papers were prepared and request for post mortem was made vide memo Ex.A4 along with death report Ex.PW4/H; and that the post mortem on the dead body was conducted on 11.11.2016. However, the viscera was preserved in order to rule out concomitant intoxication and there were described as many as three injuries on the dead body about which I shall delve on later in this judgment.
SC No.221/2020 State Vs. Vishnu Bahadur Page 4 of 296. It is further the case of the prosecution that after post mortem, two sealed parcels containing viscera and clothes of the deceased were handed over to it vide memo Ex.PW14/J and sent for FSL examination. The prosecution case is that post mortem report was collected from the hospital on 28.12.2016 and the cause of death was opined to be, "due to Cranio- Cerebral injury caused due to blunt force trauma" and thereafter rukka Ex.PW4/K was prepared on the basis of DD No.37A, which is Ex.A2 (also Ex.PW4/K) and the present FIR No.607/2016 under Section 302 of the IPC was registered on 28.12.2016, at 11.10 hours, which is Ex.A1, on rukka/tehrir/complaint received vide DD No.15A at 11.05AM.
7. It is the case of the prosecution that the site plan of the place of occurrence Ex.PW3/A was prepared and later on, even scaled site plan was prepared which is Ex.PW10/A on 27th November 2019 and during the course of investigation, the statement of the witnesses were recorded under Section 161 of the Cr.P.C. and the outcome of the investigation was that accused Vishnu Bahadur S/o Kishan Bahadur was a tenant in the jhuggi and he had fled away with his family after locking the tenanted room. It is the prosecution case that suspect was not traceable after the incident but there were hardly any clue about the accused and thereafter investigation was handed over to Inspector Sanjeev Mandal (PW10) and the case exhibits were sent for forensic examination to FSL, Rohini, New Delhi; and that there were reasonable grounds to suspect from the statements of witnesses viz. Hans Raj (PW3) Smt. Meera (PW1) and Ram Prashad (PW2) besides Dashrath(PW5) and Lala Ram that they had seen the accused going into the woods after locking the House/Jhuggi No.C172, ground floor, Kusumpur SC No.221/2020 State Vs. Vishnu Bahadur Page 5 of 29 Pahadi, Vasant Kunj, New Delhi on 05.11.2016 and after two days, the dead body was found in the same room/jhuggi.
CHARGESHEET:
8. After completion of the investigation, the present chargesheet was filed on 27.01.2020 and after taking cognizance, the matter proceeded as per Section 299 of the Cr.P.C. since the accused had been declared proclaimed offender/ proclaimed absconder vide order dated 01.11.2019 by the Ld. Committal Court. Further, narration of the prosecution case in the supplementary chargesheet that was filed on 05.09.2020 is that accused Vishnu Bahadur S/o. Kishan Bahadur was not traceable, and therefore, NBWs were ordered to be issued by the concerned Court, and thereafter proceedings were initiated in terms of Section 82 of the Cr.P.C. and for that reason, the accused has been arraigned under Section 174A of the IPC as well and the supplementary charge sheet was committed to the Sessions Court.
9. It is the prosecution case that the accused was arrested vide DD No.32A on 11.06.2020 at Police Station Vasant Kunj on information from the Office of Special Cell, SWR, Janakpuri, New Delhi. The accused was then formally arrested in the instant matter on 22.06.2020. It would bear repetition that the accused had been arraigned for trial on the charge of committing the murder and for the concealment and destruction of evidence, and lastly for having become a proclaimed offender vide Order on Charge dated 23.03.2021 to which he pleaded not guilty and claimed trial.
Incidentally, the wife of the accused Vishnu Bahadur too was declared SC No.221/2020 State Vs. Vishnu Bahadur Page 6 of 29 proclaimed offender vide order dated 12.05.2021 passed by the ld Committal Court.
PROSECUTION EVIDENCE:
10. Suffice to state that Mr. Shafiullah, Ld. Defence Counsel representing the accused made a statement on 05.05.2022 thereby admitting the following documents :
i) Copy of the FIR, which is marked Ex.A1;
ii) DD No.37A dated 07.11.2016, which is marked Ex.A2;
iii) SOC Report, which is marked Ex.A3;
iv) Inquest papers, which are marked Ex.A4 (Colly);
v) DD No.73B dated 07.11.2016, which is marked Ex.A5;
vi) Road certificate No.58/21/17 dated 22.03.2017, which is marked Ex.A6;
vii) Road certificate No.56/21/19 dated 18.03.2019, with acknowledgement of case property by FSL, Rohini, which is marked Ex.A7 (Colly);
viii) RFSL Report dated 27.07.2017, which is marked Ex.A8;
ix) FSL Report dated 13.05.2019, which is marked Ex.A9;
x) Fourteen (14) photographs with negatives, which are marked Ex.A10 (Colly);
xi) Photocopies of entries of Register No.19, which are marked Ex.A11 (Colly);
xii) Letter to the Department of Forensic Medicines and Toxicology, AIIMS, New Delhi regarding opinion of cause of death, which is marked Ex.A12;
xiii) Order of Proclaimed Offender (PO) of accused Dolli dated 12.05.2021, which is marked Ex.A13;
xiv) Order of PO of accused Vishnu Bahadur dated 01.11.2019, which is marked Ex.A14; and
xv) Copy of Kalandara U/s.41.1(c) Cr.P.C., which is marked Ex.A 15 (Colly).
SC No.221/2020 State Vs. Vishnu Bahadur Page 7 of 2911. The prosecution giving up formal recording of evidence in respect of aforesaid documents, examined in total ten (10) witnesses to prove its case against the accused. The main witnesses of the prosecution were:
Smt. Meera (PW1), Ram Prashad (PW2), Hans Raj (PW3) and Dashrath (PW5). I shall delve into their testimony later on in this judgment. Remaining witnesses were police witnesses viz., initial investigating officer Inspector Pradeep Rawat (PW4) on whose testimony I shall reflect later on in this judgment; and PW6 was HC Bhagirath Poonia, who deposed that he accompanied the IO, SI Harbir Singh from Special Staff Delhi Police to the Court at Tihar Jail where the accused was interrogated and his disclosure statement was recorded Ex.PW6/B on 11.06.2020. PW7 was Ct. Harish who deposed that on 23.06.2020, he accompanied the IO PW10 Inspector Sanjeev Mandal and on interrogation, the accused made a supplementary disclosure statement Ex.PW7/A and the accused was taken to the place of occurrence where he identified the crime scene vide pointing out memo Ex.PW7/B.
12. PW8 was Inspector Gangan Bhaskar, who remained posted as Inspector at Police Station Vasant Kunj (North) from August, 2016 to August, 2018 and deposed that he had visited the place of occurrence on 07.11.2016 and on receiving the post mortem report on 28.12.2016, the present FIR was registered at his instructions and he investigated the matter on the transfer of Inspector Pradeep Rawat on 05.01.2017. PW9 was Inspector Harbir Singh who testified that he was posted as SubInspector in Special Cell and on 11.06.2020, he received information regarding arrest of SC No.221/2020 State Vs. Vishnu Bahadur Page 8 of 29 accused Vishnu Bahadur by the staff of Special Cell, Janakpuri and then he went to the concerned Court at Tihar Jail where the accused was interrogated and his disclosure statement was recorded and formally arrested vide memo Ex.PW6/A. He deposed that the accused was taken on police remand and then he handed over the investigation to Inspector Sanjeev Mandal who interrogated the accused in his presence on 23.06.2020. PW10 completed the investigation and filed the supplementary charge sheet upon whose evidence I shall reflect later on in this judgment. STATEMENT OF THE ACCUSED U/S 313 Cr.P.C:
13. On the closure of the prosecution evidence, the accused was examined in terms of Section 313 Cr.P.C. and on putting the evidence and incriminating circumstances against him, he conceded that PW3 Hans Raj was the owner and landlord of House/Jhuggi No.C172, Kusumpur Pahari, New Delhi and he also admitted that he was residing on the ground floor along with his wife and four children. He also admitted that he was working as a car cleaner in Air India Colony and also admitted that he was blessed with a child on the day of Dhanteras in the night and PW3 had called a "Dai"(midwife) and his wife gave birth to a girl child at 04.30 AM.
However, he denied that PW1 Smt. Meera had any conversation with his wife on 05.11.2016 or that PW1 Smt. Meera had seen that her tenanted room was locked on 05.11.2016. He denied that PW2 Ram Prashad and PW5 Dashrath saw him present in the tenanted room on 05.11.2016. He denied accusation that he committed murder of Vimal Kami and denied any knowledge how the deceased was killed. The accused claimed that he has been falsely implicated in this case and made the following statement:
SC No.221/2020 State Vs. Vishnu Bahadur Page 9 of 29Question : Do you want to say anything else ?
Answer : I am an innocent. I have no concerned with the present case. I have been falsely implicated in this case. At the time of arrest, I have already stated to the concern police officers regarding my innocence. I had also told them that I had left the premises in question/the said jhuggi on the last day of October, 2016 as my mother and sister were not ready and willing to help my wife and the newly born baby. Hence, I left Delhi with my wife and newly born baby on the last day of October, 2016 to Jharkhand i.e. my inlaws house. When I came back to Delhi after one month, I met my mother who told me that in my absence some wrong had happened in my jhuggi and the police is trying to implicate me. Then I left Delhi due to fear. I have been falsely implicated in this case. I am innocent.
14. No evidence in defence was led by the accused.
DECISION:
15. I have given my thoughtful consideration to the submissions made by Ld. Addl. P.P. for the State as also Ld. Counsel for the accused. I have meticulously gone through the oral and documentary evidence brought on the record by the prosecution and the testimonies of the prosecution witnesses. There is no gainsaying that the prime objective of the criminal justice delivery system is to accord justice to all the stakeholdersthe accused, the complainant/victim, the society as well as the prosecution. Integral to such objective is a fair trial to the accused and a fair chance to prove the case to the prosecution. This finds echoed in a reiteration by the Supreme Court of India in Dayal Sin. v. State of Uttaranchal, (2012) 8 SCC 263, in which it was emphasized thus:
"―34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the SC No.221/2020 State Vs. Vishnu Bahadur Page 10 of 29 prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a ―fair trial‖, the Court should leave no stone unturned to do justice and protect the interest of the society as well." {Bold portions emphasized}
16. In the instant matter, I shall endeavour to discharge such duties to the best of my understanding of law and capabilities. At the outset, the case of the prosecution is based on circumstantial evidence that is delicately hinging on the testimonies of PW1, PW3 and PW5. Now, PW1 Smt. Meera testified to have seen and spoken with Dolly, wife of the accused Vishnu Bahadur on 05.11.2016 coupled with the testimony of PW2 Ram Prashad that he had seen the accused Vishnu Bahadur on 05.11.2016, around 05.00 AM, in the morning when he was going to the jungle for answering the call of nature and accused was going on his bicycle to his work. Further, the prosecution also relies upon on the testimony of another key witness PW3 Hans Raj that he had seen the accused Vishnu Bahadur talking with the deceased about 5 or 6 days prior to the incident and it relies further on the testimony of PW5 Dashrath who testified that he had seen the accused on 05.11.2016 at about 03.00 or 05.00 PM, along with his wife in the veranda of the room/jhuggi.SC No.221/2020 State Vs. Vishnu Bahadur Page 11 of 29
17. I am afraid I am unable to persuade myself to give any credence to the testimony of the aforesaid four prosecution witnesses examined by the prosecution for there being serious discrepancies, improvements and embellishment in their testimonies tainted in all human probabilities due to unfair, perverted and unprofessional investigation in the matter conducted by PW4 Inspector Pradeep Rawat, PW8 Inspector Gangan Bhaskar besides PW10 Inspector Sanjeev Mandal. First thing first, it is the prosecution case that the dead body of the deceased was discovered in the room/jhuggi on the ground floor shown in the site plan, at point A Ex.PW 3/A (as also in the scaled site plan Ex.PW10/A prepared later on 26.11.2019) on 07.11.2016, at about 14:12 hours. It is the prosecution case that the door of the room from where foul smell was emanating was locked, which was broke opened and there was lot of blood on the body and on the floor, which body was lying on one side along with the wall. The said circumstances clearly suggested an inference that it was a case of homicide but it is not understandable as to why the FIR was kept pending and recorded on 28.12.2016 i.e., after one and half months, although in the interregnum, the post mortem on the dead body had been conducted on 11.11.2016 that ruled out suicide. The dead body was sent to the mortuary on 07.11.2016, at about 09.50 PM, and although, there were found no visible or apparent signs of injury marks on the body probably due to decomposition, the accumulation of blood on the spot and the fact that door was locked from outside would by any common sense & logic must have invited a strong common sense approach that the case was of "homicide" and not "suicide".
There is no evidence on the record that the information was sent to SC No.221/2020 State Vs. Vishnu Bahadur Page 12 of 29 Magistrate in terms of section 174 and/or section 176 of the Cr.P.C and no inquest was conducted. It is the prosecution case that the post mortem was conducted on 11.11.2016 and there were found following injuries on the body of the deceased:
i) Lacerated wound of size 4x1 cm, bone deep present on midparietal region, margins irregular and contused, with underlying subscalp hematoma, 15 cm from frontonasal junction, 17 cm from right Tragus;
ii) Lacerated wound of size 3x1 cm, bone deep present on right parietal region, margins irregular and contused, with underlying subscalp hematoma, 20 cm from frontonasal junction, 15 cm from right Tragus; and
iii) Lacerated wound of size 6x2.5 cm, muscle deep, present on right hand, margins irregular and contused.
18. It is in evidence that the post mortem report opined that the cause of death was "coma due to Cranio-Cerebral injury caused due to blunt force trauma" and the viscera was also preserved to rule out concomitant intoxication (incidentally the FSL report ruled out poisoning). The post mortem report also opined that the time since death was about 6 to 7 days i.e., from 05.11.2016. The prosecution has not given explanation as to how despite the post mortem having been conducted on 11.11.2016, the FIR was kept pending and then only to be recorded on 28.12.2016 at 11:10 hours Ex.A1. It is in the aforesaid circumstances that Mr. Shafiullah, Ld. Counsel for the accused tore into the entire prosecution case bringing out reasonable doubt in the prosecution case and inviting a strong inference that PW4 IO/Inspector Pradeep Rawat and SHO Inspector Gagan Bhaskar (PW8) besides PW10 Inspector Sanjeev Mandal did an unfair, perverted and thorough unprofessional investigation and ultimately a blind case was SC No.221/2020 State Vs. Vishnu Bahadur Page 13 of 29 attempted to be solved by foisting culpability upon the accused Vishnu Bahadur based on unreliable and most probably tutored witnesses by the Police/IO, whose statements under Section 161 Cr.P.C. were shown to have been recorded first time only on 28.12.2016.
PROOF BEYOND REASONABLE DOUBT:
19. It is well settled that while in criminal cases, the doctrine of presumption of innocence casts the burden on the prosecution to prove its case against the accused persons beyond reasonable doubt, it is trite that doubt to the guilt of the accused should be substantial and not flimsy or fanciful. Such doubt need not reach certainty, but it must carry a high degree of probability. In the case of State of U.P. v. Krishna Gopal, (1988) 4 SCC 302, it was observed that "though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to ―proof is an exercise particular to each case". Quoting from "the Mathematics of ProofII : Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342), it was observed that :
"The one piece of evidence may confirm the other. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection SC No.221/2020 State Vs. Vishnu Bahadur Page 14 of 29 given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice"
(underlined emphasized)
20. In the case of Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445, the Supreme Court quoted observations of Lord Denning in Bater v. Bater in (1950) 2 All.E.R. 458 that "the standard adopted by the prudent man would vary from case to case, circumstances to circumstances". It was held that the Prosecution is not required to meet any and every hypothesis put forward by the accused. The contours of benefit of doubt were discussed in the case of K.Gopal Reddy v. State of AP, of (1979) 1 SCC 355, that a reasonable doubt means a real doubt, a doubt founded upon reasons. It is also settled dictum that it is better to let a hundred guilty escape than to punish an innocent. On the issue of appreciation of evidence of the witnesses, in the case of Rohtas v. State of Haryana, (2019) 10 SCC 554, it is was observed that it is duty of the Court to separate the grain from the chaff and then to arrive at a finding of the guilt of an accused. Referring to a plethora case law on the subject, it was reiterated that:
"An attempt has to be made to, as noted above, in terms of the felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto."
21. Retaining the aforesaid observations at the back of our mind, reverting to the instant case, a careful reading of DD No. 37A dated SC No.221/2020 State Vs. Vishnu Bahadur Page 15 of 29 07.11.2016 would show that when PW4 SI Pradeep Rawat reached the place of occurrence, there was a huge crowd assembled at or the near the spot and PW3 Hans Raj came forward and disclosed that he was the owner/landlord of the property and no one who came forward that day or otherwise had made any statement to the IO that the room was under tenancy of accused Vishnu Bahadur and no one placed suspicion that accused Vishnu Bahadur was involved in the ghastly crime. The prosecution seeks to take mileage from the fact that the accused was absconding for four years and the fact that the postmortem report revealed that the murder had been committed 67 days back before the date of postmortem on 11.11.2016 but what is not fathomable is that till 28.12.2016, no statement of any witnesses was recorded under Section 161 of the Cr.P.C. or otherwise in the case diary that the accused was the real suspect in commission of the murder. On being prodded, PW4 SI Pradeep Rawat was on slippery turf in his cross examination on 20.07.2022 when he acknowledged that he had not prepared any inventory of the articles lying in the room and did not remember if there was any TV, Gas cylinder or other household items in the nature of utensils lying in the room. Further, there was no mention of the name of the accused in the DD No.73B dated 07.11.2016 recorded at 10:30 PM as a suspect, although PW4 SI Pradeep Rawat acknowledged in his crossexamination that when he reached the place of occurrence, he came to know that the accused Vishnu Bahadur was residing in the room as a tenant.
22. There is another twist to the prosecution tale. Interestingly, there is no statement of PW3 Ram Pal, PW2 Meena, PW5 Dashrath recorded on 07.11.2016 that they had seen the deceased prior to the incident, who was SC No.221/2020 State Vs. Vishnu Bahadur Page 16 of 29 passed off as an "unknown male". In fact, DD No.73B Ex. A5 recorded that the witnesses present at the site were unable to recognize the face of the deceased and even after recording FIR on 28.12.2016, it is a matter of record that PW10 Inspector Sanjeev Mandal recorded the statement of the witnesses on the same day i.e. 28.12.2016 that reads that PW3 Hans Raj as also other witnesses viz. PW2, PW3 and PW5 had never seen the deceased prior to the incident and although it was revealed to the IO PW4 Pradeep Rawat and PW8 that accused Vishnu Bahadur was residing as a tenant, it was only after the accused was arrested on 11.06.2020 that the supplementary statements of PW2 Ram Prashad and PW3 Hans Raj were recorded by PW10 Inspector Sanjeev Mandal who contrary to their earlier versions stated that they had seen the deceased along with the accused Vishnu Bahadur prior to the recovery of the dead body on 07.11.2016.
23. Again interestingly, PW10 Inspector Sanjeev Mandal in his examinationinchief testified that he had collected the case file from MHC(R) on 20.02.2019 and it appears that supplementary statement of PW3 Hans Raj was recorded on 27.11.2019 regarding preparation of the scaled site plan Ex.PW10/A wherein he for the first time identified the deceased but there is no mention of him having seen the deceased with the accused prior to the incident; and PW10 embarked upon the investigation leading to the conducting proceedings under Section 82 & 83 of the Cr.P.C. At the cost of repetition, on 11.06.2020 PW10 was informed by DD No.32A regarding arrest of the accused Vishnu Bahadur under Section 41.1(c) by ASI Devender, Special Cell, SWR, Chanakyapuri, New Delhi Ex. A15 albeit in a daring and thrilling manner, and PW10 interrogated the accused on SC No.221/2020 State Vs. Vishnu Bahadur Page 17 of 29 22.06.2020 while the accused was on two days police remand. In his cross examination when PW10 was prodded to explain as to how or in what manner he had summoned the witnesses whose supplementary statements were recorded about identifying the deceased and having seen him in the company of the accused, which statements were recorded on 23.06.2020, he failed to recount as to how and/ in what manner the witnesses were summoned but then tried to wriggle out of such lapse by testifying that they were probably contacted on phone. There is found no notice under section 160 of the Cr.P.C on the record or in the case diary. Ld. Defence Counsel vehemently urged such aspect of the matter invites a strong inference that the IO/PW10 Inspector Sanjeev Mandal was by all means eager to solve a blind case, and thus fabricated such statements under Section 161 of the Cr.P.C without examining the witnesses PW3 Hans Raj and PW2 Ram Prashad and to that effect even a suggestion was given that PW10 had manipulated such statements and had falsely implicated the accused.
24. Now, the purpose of trial under the Criminal Justice System is to ascertain the "truth" but at the same time, the word "truth" has not been defined under the Indian Evidence Act. While embarking on the process of appreciation of evidence to ascertain whether the evidence of the prosecution witnesses is truthful and of 'sterling quality', and whether credence can be put upon the same, reference can be invited to decision in the case of Mohan Singh v. State of M.P., (1999) 2 SCC 428, wherein it was held that:
"effort should be made to find the truth; and the Court has to disperse the suspicious, cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this SC No.221/2020 State Vs. Vishnu Bahadur Page 18 of 29 protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get Scot free."
25. Thus, at this juncture, in order to appreciate if the testimony of the witness is of 'sterling quality' and 'truthful' , it would be expedient to refer to the testimony of PW1 Smt. Meera who testified that accused Vishnu Bahadur was residing as a tenant in the premises and she had been collecting rent from him @ Rs.1500/ per month on behalf of the landlord Hans Raj (PW3) and on her failure to recount as to when accused shifted as a tenant and the date, month or year and the incident, she was permitted to be cross examined by the Ld. Addl. PP for the State and she acknowledged that the wife of accused Vishnu Bahadur had given birth to a girl child on the day of Dhanteras but she failed to recount if the accused was working as a Car Cleaner in Vasant Vihar or if he was habitual of drinking liquor. She admitted the suggestion by Ld. Addl PP for the State that on 05.11.2016 was a Saturday and on that evening, she had seen wife of the accused Vishnu Bahadur in her room so much so that the wife of the accused told her that her daughters had gone to the house of her grandmother. She also admitted a suggestion by Ld. Addl. PP for the State that on next day i.e., Sunday she found that the tenancy room of accused Vishnu Bahadur was locked. All said and done, the suggestions, which were put by the Ld. Addl. PP for the State to PW1 by way of closed questioning method do not help the prosecution case as she stated in her crossexamination that she had not given any SC No.221/2020 State Vs. Vishnu Bahadur Page 19 of 29 statement to the police and as discussed hereinbefore there is a serious doubt about fair investigation in this case by PW10 Inspector Sanjeev Mandal.
26. In so far as the PW2 Ram Prashad is concerned, he testified that the accused was residing in the tenancy room along with his wife and children and he testified that he had seen the accused Vishnu Bahadur on 05.11.2016 at 5:00 a.m, but then this fact was revealed by him in his statement recorded on 23.06.2020 by PW10. While both PW1 & PW2 did say that foul smell was emanating from the room and the police reached and found the dead body. PW2 contrary to his statement recorded on 23.06.2020 by PW10/IO Inspector Sanjeev Mandal denied in the witness stand on 08.12.2021 that he had seen the deceased prior to the incident in the company of the accused.
27. Reverting to the testimony of PW3 Hans Raj, indeed he supported the prosecution case that he had seen the accused Vishnu Bahadur talking to the deceased about 5 6 days prior to the incident, but such version is not inspiring confidence as it was a material improvement over his previous statement under Section 161 of the Cr.P.C Ex.PW3/D1 dated 28.12.2016 wherein he had stated that he had not seen or knew the deceased prior to the incident. Although, he volunteered that when he thought deeply about the matter, he realized that he had seen the deceased prior to 5 6 days of the incident after giving his statement on 28.12.2016 to the IO. If the version of PW10 is believed, he had the contact numbers of the witnesses but PW3 at no stage was not subjected to any query about the suspect or the identity of the deceased till June, 2020. No doubt that PW3 was an extra SC No.221/2020 State Vs. Vishnu Bahadur Page 20 of 29 smart witness who spoke in a parrot like manner probably on dictation of the Police.
28. While appreciating the testimony of the witness, the proposition of law based on last seen evidence and the burden under section 106 of the Indian Evidence Act need to be discussed without long jurisprudential discourse. In the case of State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688 : 2006 SCC OnLine SC 1163, it was observed as under:
23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 :
1960 Cri LJ 620]
18. In view of the time gap between Manoj being left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite SC No.221/2020 State Vs. Vishnu Bahadur Page 21 of 29 evidence that the appellants and the deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj.
Where time gap is long it would be unsafe to base the conviction on the "last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory.
19. 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. In the case at hand, neither was the weapon of murder nor the money allegedly looted by the appellants or any other material recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links : (i) Nonrecovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW 2 alleging that he was robbed by some other miscreants; (iv) Non identification of the dead body; and (v) Nonexplanation as to how the deceased reached Maniya Village and injuries on his internal organ (penis). Thus, we find many loopholes in the case of the prosecution. 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. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution.
29. Thus, on appreciation of the testimony of the PW3 in its entirety and I am afraid his version that the accused was seen in the company of the deceased about 56 days prior to 07.11.2016 is utterly unreliable and could be given no credence; more for the reasons that PW3 testified that accused Vishnu Bahadur was working as a Car Cleaner in Air India Colony, Vasant Vihar, New Delhi who was a habitual drunker and he testified in examinationinchief that on the day of Dhanteras the wife of the accused had given birth to a girl child and he had called the Dai (midwife) at about SC No.221/2020 State Vs. Vishnu Bahadur Page 22 of 29 4;00 AM to 4:30 AM. He testified that on the night of Dhanteras he was ill and painting his house which was located at Sangam Vihar, New Delhi and therefore had left the site in question. Although testimony of PW5 Dashrath corroborates the version of PW3 that the accused was residing as a tenant in the house along with his wife and children and he had seen the accused and wife at the verandah on 05.11.2016 at 3:00 p.m, PW5 acknowledged in his crossexamination that he was a close relative of PW3 Hans Raj and testified that he used to leave for his work at 6:00 AM to 7:00 AM and used to come back by 10:00 PM. He also conceded in his cross examination that he was not on visiting terms with accused Vishnu Bahadur. The burden of proof therefore never passed on to the accused why he was seen with the victim.
30. To sum up, this Court finds the version of the aforesaid witnesses, having seen the accused and his wife in the tenanted room at any time of the day on 05.11.2016, is highly questionable because if the said version is accepted on its face value, it was Diwali time in the year 2016 and Dhanteras was celebrated on 28.10.2016. The property in question is admittedly located in a densely populated area, and it looks improbable that the accused would leave abruptly with his wife who had given birth to a child with three other children lock, stock and barrel over a night without being noticed by anyone. If they left abruptly without the household articles, at the cost of repetition, PW4 SI Pradeep Rawat did not prepare any inventory of the items lying in the tenancy room.
31. It is pertinent to mention here that that fourteen (14) photographs were taken by the Crime Team proven on the record, which are SC No.221/2020 State Vs. Vishnu Bahadur Page 23 of 29 marked A10 (Colly) that were admitted in evidence in terms of Section 294 of the Cr.P.C by the defence, that merely show the position of the dead body from the different angles but there is nothing visible as to what sort of household items were lying inside the room. The Crime Report Ex.A3, also admitted by the defence in terms of Section 294 of the Cr.P.C, vide item No.16 with regard to the Articles examined, chance print developed at the spot depict blanks. In other words, there is no indication as what sorts of articles were lying inside the house.
32. In view of the foregoing discussion, I find substance in the defence plea that although the accused Vishnu Bahadur and his family were residing as a tenant in the premises, his version that he had left the tenanted accommodation on the last day of that month, to go to native place of her wife so that she could be provided with post pregnancy care by his inlaws located in the State of Jharkhand seems to be quite plausible. At the cost of repetition, there is no iota of evidence that accused Vishnu Bahadur left with household articles, no such inventory were prepared by the initial IO PW4 SI Pradeep Rawat and the defence story is probable that in his absence, somebody barged into the house and not only his household articles were stolen but some third persons might have committed murder of Vimal Kami. It goes without saying that no chance prints were lifted from the scene of crime or from broken whiskey glass bottle, and it cannot be overlooked that no inquiry was conducted from the Air India Colony, Vasant Vihar, Delhi, where the accused was working as a Car Cleaner and to ascertain when was the last time he was seen at work or since when he was missing or not reporting for the work.
SC No.221/2020 State Vs. Vishnu Bahadur Page 24 of 2933. It is not the end of the matter. There is another twist to the tale. The prosecution case is that the disclosure statement of the accused EX. PW6/B and supplementary disclosure Ex. PW7/B were recorded in which the accused disclosed the motive of behind the commission of the crime that the deceased commented about how beautiful was his wife and made some comments which enraged the accused and led to the crime. While such disclosure statements are not relevant and can not be looked into, what clearly looks improbable is that in a room measuring 10x10 ft., the accused committed ghastly crime of murdering the deceased in the presence of his wife and children. Anyways, even if such crime might have been possible, at the cost of repetition, there are posed serious question marks about the manner in which the investigation was carried out.
34. To my mind, the instant matter is not a case of defective investigation, and rather all facts and circumstances discussed hereinabove would go to suggest that the investigation was not only conducted in a lackadaisical manner by PW4 Inspector Pradeep Rawat, PW8 Inspector Gangan Bhaskar besides PW10 Inspector Sanjeev Mandal but was also grossly in unfair manner, and they found a convenient way to solve a blind murder case by guiding, tutoring and coaxing the witnesses about presence of the accused and his family in the property on 05.11.2016 and about his acquaintance with the deceased. No investigation was done about the background of the deceased and whether he was an acquaintance of the accused. No one had seen the deceased visiting the property in question. On the issue of defective investigation, reference can be invited to decision in the SC No.221/2020 State Vs. Vishnu Bahadur Page 25 of 29 case of C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, wherein it was observed that:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial....."
35. Reference can also be invited to decision in the case of Gargi v. State of Haryana, (2019) 9 SCC 738, it was observed that wherein the role of the IO was discussed who had committed glaring omissions at the very initial stage, failing to making enquiries in the locality regarding the character of the appellant, and though he had examined the children of the appellant in the investigation but did not record their statements either; further not bothering to take statement of the tenant whose testimony would have been of immense significance, looking to the nature of accusations as also the factors related with the building in question. It was observed:
20.6. Moreover, in this matter, where it was prima facie appearing that the clues available at the site might play a SC No.221/2020 State Vs. Vishnu Bahadur Page 26 of 29 significant role in reaching to the real culprits, it is also intriguing to notice that the investigating officer did not take even elementary care to obtain fingerprints from the material objects and to get them analysed properly. The investigating officer (PW 10) has stated, rather with impunity, that he did not take any fingerprints at all, even while admitting that the fingerprint expert did visit the site. It is not stated that the so called expert expressed inability to collect such prints for any reason. It is left only for one to wonder as to for what purpose did the socalled fingerprint expert visit the site, if no prints were to be taken at all! 20.7. The abovementioned unexplained shortcomings, perforce, indicate that in this case, the investigation was carried out either with preconceived notions or with a particular result in view. It is difficult to accept that the investigation in this case had been fair and impartial. From another viewpoint, on the facts and in the circumstances of this case, the omissions on the part of investigating agency cannot be ignored as mere oversight.
These omissions, perforce, give rise to adverse inferences against the prosecution.
36. In view of the foregoing discussion, although valiant efforts were made by the Ld. Addl. PP for the State to present to salvage the prosecution case based on "last seen evidence" reflected from the testimony of the witnesses besides arguing that "flight is an evidence of guilt" since the accused absconded away soon after the incident and had a plausible motive, I find that the prosecution has not been able to prove the guilt of the accused Vishnu Bahadur beyond reasonable doubt. Not only that there are visible cracks in the prosecution story but also that the investigation was not only unfair besides being thoroughly unprofessional thereby throwing all the procedural norms & safeguards to the wind. It is not understandable as to why the FIR was kept pending for more than one and half months despite finding a clear case of homicide and why the statements of witnesses were not recorded till 28.12.2016. There is no explanation why the information SC No.221/2020 State Vs. Vishnu Bahadur Page 27 of 29 was not given to the District Magistrate under section 174 & 176 of the Cr.P.C and no inquest was done. It is not understandable what were the superior officers of the rank of ACP or the DCP were doing all along and how they were supervising or monitoring the investigation that was being conducted by the concerned police officers in such a heinous crime. The prosecution story that the accused was absconding is a sham as even the processes issued under section 82 & 83 Cr.P.C were an eyewash and I must say that the Ld. Committal Court did not properly scrutinize the reports in this regard since it is evident that such processes were sent to the address of the tenancy premises in question and not to his native place. No worthwhile steps were taken to locate the mother and sister of the accused who were residing nearby. No inquiries were made from the native place of the deceased either about his relationship with the accused. Hence, this Court has no hesitation in acquitting the accused of all the charges. The accused is hereby acquitted. He be released forthwith, if not required in any other case. The accused is directed to furnish Personal Bond/Surety Bond in the sum of Rs.10,000/ in terms of Section 437A of the Cr.P.C. Before parting with this case, exercising suo moto powers of revision under Section 397 Cr.P.C. the order dated 12.05.2021 passed by the Ld. Committal Court whereby the coaccused Dolly, wife of the accused, was declared proclaimed offender is also quashed for the simple reason that the issuance of processes issued under 82 & 83 Cr.P.C was a sham & bogus exercise, which fact was completely overlooked by the Ld. Committal Court and suffers from the vice of illegality.
SC No.221/2020 State Vs. Vishnu Bahadur Page 28 of 2937. A copy of this Judgment be sent to the Commissioner of Police, Delhi who is requested to look into the matter and may initiate appropriate disciplinary proceedings against the erring police officials viz., by PW4 Inspector Pradeep Rawat, PW8 Inspector Gagan Bhaskar besides PW10 Inspector Sanjeev Mandal for the glaring lapses on their part discussed in this judgment, as per the procedure established by the law.
38. File be consigned to the Record Room.
DHARMESH Digitally signed by
DHARMESH SHARMA
SHARMA Date: 2022.11.16 16:34:29
+0530
Announced in the open Court (DHARMESH SHARMA)
th
on 15 November, 2022 Principal District & Sessions Judge (NDD)
Patiala House Courts, New Delhi
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