Delhi District Court
Fir No. 458/04 State vs . Vikas @ Bhola & Anr. Page 1 Of 52 on 22 December, 2011
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IN THE COURT OF SH. RAVINDER DUDEJA : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 49/09.
FIR No. 458/04.
P.S. Uttam Nagar.
U/S: 302/34 IPC.
STATE
Versus
1. Vikas @ Bhola,
S/o late Sh. Hari Prakash Tyagi,
R/o Village Harsingh Pura,
PS Gharaunda, Distt. Karnal,
Haryana.
2. Anil Kumar, S/o Jai Bhagwan,
R/o Village Harsingh Pura,
PS Gharaunda, Distt. Karnal,
Haryana.
Date of Institution: 13.08.2004.
Date of arguments: 25.11.2011.
Date of judgement: 22.12.2011.
FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 1 of 52
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J U D G M E N T
1. Prosecution case is that deceased Hari Prakash Tyagi was running a shop by the name of Tyagi Spare Parts at WZ154, Ground Floor, Main Najafgarh Road, Uttam Nagar. He used to sleep at the shop itself. He was last seen by complainant Harkesh Sharma at the shop at 3.00 pm on 04.06.2004. On 05.06.2004, the shop was found closed. On 07.06.2004, complainant Harkesh Sharma, who was running an office in the name of All India Transport at the first floor above the shop, felt stink coming from the shop. He telephonically informed the brother of Hari Prakash Tyagi. At about 8.00 pm, Niranjan and Laxman, brothers of Hari Prakash Tyagi and his nephew Jai Kumar came at the shop. The lock of the shop was got broken and on checking, the body of Hari Prakash Tyagi having marks of sharp injuries on his stomach and neck was found from the box of Diwan lying in the shop. The body was in a decomposed condition. Blood was flowing on the floor. Police was informed. Police came at the spot. Crime team and photographer were also called. Statement of complainant Harkesh Sharma was FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 2 of 52 3 recorded. On the basis of his statement, FIR was recorded under Section 302 IPC. Crime team inspected the spot, phtographs of the spot were taken, site plan was prepared, exhibits were lifted and the body was sent to DDU Hospital Mortuary for postmortem. After postmortem, the body was handed over to accused Vikas, who is the son of the deceased. During investigation, statements of various witnesses including the brothers and nephew of the deceased were recorded. It was found that relations between the deceased and his wife and children were not good and deceased was residing at his shop while his wife and children were residing at Village Narsingh Pura and since last about 1 ½ - 2 years, accused Vikas started visiting deceased Hari Prakash and used to take money from him for his expenses. A quarrel had taken place between Hari Prakash Tyagi and accused Vikas on the question of money but later accused Vikas sought apology and again started visiting his father. On 22.05.2004, Vikas brought Chhach (Lassi) in a bottle for Hari Prakash. Hari Prakash did not take the lassi as he had already taken the food. One Mahesh Sharma, who was sitting with the deceased, found the lassi to be bitter and at the asking of Hari Prakash when he went to throw the lassi, a footpath tea vendor FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 3 of 52 4 Sher Singh asked him to give chhach to him. On taking the chhach, Sher Singh became unconscious. He was rushed to the doctor who administered him glucose and gave him injection. Hari Prakash had told Mahesh Sharma that his son Vikas had mixed poison in the chhach with a view to kill him. It was also found that the relations between the deceased and his wife were not cordial because deceased was having illicit relationship with a woman. In his statement, Nilesh Kumar, nephew of deceased stated that since about one year, Vikas was insisting him to ask the family members to transfer the Uttam Nagar shop in his name so that he and his mother and brother and sister should start living at Village Jhatikra. At the asking of the father of Nilesh Kumar, grandfather of Vikas transferred Uttam Nagar shop in the name of Vikas, Laxman and Niranjan. After two months, Vikas asked Nilesh to get the share of Hari Prakash in the plot at Village Jhatikra transferred in his name. When Nilesh asked about this to his father, he refused. On account of this, Vikas got annoyed. Nilesh further stated that accused had asked him about a medicine which may cause death. Notice under Section 160 Cr. PC was given to Vikas. He was interrogated. He confessed his guilt. He was then arrested. His disclosure statement FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 4 of 52 5 was recorded. In his disclosure, he gave the name of coaccused Anil Kumar and stated that they had thrown their clothes and gloves in a polythene bag near Neha Toka Factory at G.T. Road, Sonepat from the puliya and had thrown the knife in the bushes at a little distance away from the said place. Coaccused Anil Kumar was also arrested. Both the accused got recovered their clothes soaked with blood. From the pocket of pajama of accused Vikas, a key of the lock of the shop was recovered. A dagger type knife (weapon of offence) was also recovered at the instance of the accused. Opinion of the doctor was obtained with regard to the weapon of offence. Exhibits were sent to FSL. On completion of investigation, charge sheet was prepared under Section 302/34 IPC.
2. After compliance of Section 207 Cr. PC, case was committed to Sessions Court. Charge under Section 302/34 IPC was framed against the accused. They pleaded not guilty.
3. In order to prove its case, prosecution examined 34 witnesses. PW1 is Constable Ranbir Singh. He had deposited the exhibits at FSL.
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PW2 is Sher Singh, footpath tea vendor. He stated that Hari Prakash Tyagi was running a spare part shop at a distance of about 23 paces from the place where he used to sell the tea. He deposed that he does not know how many children Hari Prakash Tyagi had and had not seen any of his child at the shop. He stated that no incident took place during his lifetime and that Sh. Tyagi or Sh. Sharma had not given him any article for eating and police had not made any interrogation from him nor recorded his statement. He further stated that he cannot identify any child of Tyagi. PW2 was declared hostile and was cross examined by the learned APP.
PW3 is Harkesh. He is the complainant. He deposed about the averments stated in his statement Exbt. PW3/A given to the police.
PW4 is Praveen Kumar. He stated that he knows accused Vikas as he was his classmate but stated that he does not know how his father had expired. He stated that he had never joined the investigation of the case and gave no statement to the FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 6 of 52 7 police. He was also declared hostile and cross examined by the learned APP.
PW5 is Niranjan Tyagi. He is the brother of the deceased. He deposed that due to disputes between the deceased and his wife, his wife was living at her parental home at Narsingh Pura with her children. He stated that accused Vikas also had strained relations with his father Hari Prakash Tyagi and used to take money from him every now and then by blackmailing him. He also used to beat his father Hari Prakash. On 22.05.2004, he brought Roti and poisoned lassi for his father but he did not take the same as he already had taken the food but the lassi was consumed by one Shera due to which, he got ill and on noticing that the health of Shera had deteriorated, accused Vikas had spilled over the lassi. He stated that the doctor had opined that Shera had consumed some poisonous substance. He further stated that his brother Hari Prakash used to give Rs. 5000/ for the maintenance of his children but accused Vikas used to ask for Rs. 10000/ and more. Accused Vikas had also beaten his father on denial of money. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 7 of 52 8
PW6 is Dr. Rakesh Sharma. He deposed that on 22.05.2004 at about 2.00 pm, Hari Prakash Tyagi came at his residence and asked him for treatment of a tea vendor. He accompanied Hari Prakash Tyagi at his shop. One person Sher Singh, who used to run a tea shop in front of shop of Hari Prakash, was found present and was not feeling well and was vomiting. On asking, Sher Singh told him that he started vomiting after eating something during the morning. He gave him injection and glucose drip and after sometime, Sher Singh started feeling well. According to him, Sher Singh was vomiting due to food poisoning.
PW7 is Sanjay, owner of the neighbouring shop. He deposed that on 04.06.2004 morning, he saw Hari Prakash sitting on his shop. Thereafter, he did not notice him at the shop. After 34 days, the body of Hari Prakash was recovered by the police from the shop.
PW8 is Suraj Bhan. He is the elder brother of Hari Prakash. He stated that Hari Prakash used to reside and sleep in his shop at Uttam Nagar while his family was residing at the house FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 8 of 52 9 of maternal uncle of accused Vikas at Karnal. He deposed that about two months prior to the incident, accused Vikas started meeting his father Hari Prakash and used to fetch food and lassi from Village Jhatikra to his shop. He deposed that one week prior to his death, Hari Prakash made a telephone call to his younger brother Laxman and told him that accused Vikas had mixed poison in the lassi and on suspicion, he did not consume the said lassi and gave the same to Shera to consume the same. After consuming the lassi, Shera became unconscious and was taken to hospital and got medically examined. He further deposed that 23 days prior to the incident, his son Nilesh told him that accused Vikas had asked him if there was any poison which is not detected in postmortem report and his son told him that there is no such poison.
PW9 is Laxman Tyagi. He is the younger brother of deceased Hari Prakash. He deposed that 1012 days prior to the incident, his brother Hari Prakash made a phone call to him at Village Jhatikra and told that accused Vikas had mixed poison in the lassi but he did not consume the lassi and gave the same to Sher Singh and after consuming the lassi, Sher Singh became FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 9 of 52 10 unconscious and was taken to the hospital. He deposed that Hari Prakash had also told him that Vikas started demanding Rs. 5000/ per month from him by threatening him and that he had told him t hat he was not in a position to give Rs. 5000/ 6000/ to accused Vikas.
PW10 is Nilesh Kumar Tyagi. He is the nephew of the deceased. He deposed that his Chacha Hari Prakash Tyagi was having illicit relations with a lady named Jyoti who used to visit his shop and due to this, there used to be quarrel between the deceased and his wife. His Chacha used to beat his Chachi and therefore the father and brother of his Chachi took her and her children to their village. Since then, his Chachi did not maintain any relations with his Chacha but later on when Vikas grew older and was about the age of 20 years, he started meeting his father Hari Prakash Tyagi. He used to get his pocket expenses from Hari Prakash Tyagi. Sometimes, he used to quarrel with Hari Prakash over the payment of pocket money. He deposed that accused Vikas had asked him and his brother Shailesh to get the shop of Hari Prakash transferred in his name. He told about this fact to his father FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 10 of 52 11 who in turn, informed his grandfather. The grandfather Sh. Ram Narain transferred the shop in the name of Vikas, Laxman and Niranjan. Thereafter, Vikas asked him to get the plot of Village Jhatikra transferred in his name from his father. He told this fact also to his father but his father refused and on account of this, accused Vikas became disturbed. He stated that accused Vikas had asked him once to tell him about some poison which can cause death of a person but he had expressed his ignorance. He further stated that the relations between Vikas and his Chacha were not good and his Chacha was afraid of Vikas and there were frequent quarrels between the two.
PW11 is Sunil Dutt. He is the nephew of complainant Harkesh Sharma. He stated that he had last seen Hari Prakash Tyagi alive at his shop at 9.30 pm and that at about 1.00 - 1.30 am in the night, he saw the shutter of the shop closed and no person was seen near the shop. Next day also, the shop Hari Prakash Tyagi was lying locked. After three days, he received a telephone call from complainant and his wife that Hari Prakash Tyagi had been murdered.
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PW12 is Sanjay Rana. He is the tenant of Hari Prakash Tyagi. He deposed that he had gone to his native village at District Saharan Pur, UP and after about a week when he returned back, he came to know that his landlord Hari Prakash Tyagi had been murdered in his shop. In cross examination by the learned APP, he denied that he had once seen accused Vikas sitting on the shop of Hari Prakash Tyagi before his death.
PW13 is SI Mahesh Kumar. At the request of the IO, he had prepared the scaled site plan Exbt. PW13/A. PW14 is Mohd. Afzal, driver of Tata 407. He stated that he came at the office of All India Tempo Transport and unloaded the goods. He found that the shutter of the shop of Hari Prakash Tyagi was down. Next day, he took the goods in the truck to Solan and came back after two days and in the evening, he was informed about the discovery of dead body from the spare parts shop.
PW15 is SI Manoj Kumar, Incharge, Crime Team, West FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 12 of 52 13 District. He had visited the place of occurrence and inspected the spot and prepared the report Exbt. PW15/A. PW16 is HC Ram Niwas, Crime Team Photographer.
He had taken the photographs of the spot which are Exbt. PW16/1 to Exbt. PW16/21.
PW17 is HC Ram Niwas from mobile crime team. He stated that no chance prints were found.
PW18 is Banwari Lal, owner of Tata Sumo. He stated that he had employed Praveen Kumar as driver on his Tata Sumo. In cross examination by the learned APP, he admitted that Praveen used to take the vehicle in the morning at 8.00 - 8.30 am and after finishing the duty, bring back the vehicle at 10.00 - 10.30 pm. He admitted that on 04.06.2004, Praveen Kumar took the vehicle at 8.30 am but did not bring the same in the night. He admits that next day i.e. 05.06.2004, Praveen Kumar told him that he had taken a passenger to Uttam Nagar in the night and came back at 4.00 am in the morning. He admits that SI Tejpal informed him that on the night FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 13 of 52 14 of 4/5.06.2004, two boys of Narsingh Pura namely Vikas @ Bhola and Anil Kumar had murdered Hari Prakash, father of Vikas at Uttam Nagar and that they had come to Delhi in his Tata Sumo and had also returned back in the same vehicle.
PW19 is Inspector Neeraj Kumar Tyagi. He deposed that on 07.06.2004 at about 9.45 pm, a telephone call was received from Duty Officer PS Uttam Nagar that some foul smell was emanating from the shop of Tyagi Spare Parts at Najafgarh Road, Uttam Nagar. He along with ASI Arjun Singh and other staff went at the shop of Tyagi Spare Parts. The shutter of the shop was locked from outside as some people were standing near the shop. Lock was broken. In the meanwhile, SHO Inspector R. Chandran also reached there. On checking the shop, a body was found in a putrefied condition which was identified to be that of the owner Hari Prakash Tyagi. Blood was lying on the floor. The body was sent to mortuary and exhibits were lifted from the spot. He stated that on 11.06.2004, accused Anil was arrested from Village Gharaunda and he had pointed out the place of incident vide pointing out memo Exbt. PW19/D. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 14 of 52 15 PW20 is Constable Anil Kumar. He came at the spot with SI Neeraj Kumar and ASI Arjun Singh. He had taken the rukka to police station. After registration of the FIR, he returned back at the spot and handed over the copy of FIR and rukka to IO.
PW21 is Mahesh Chand. He is the brother of the complainant Harkesh Sharma. He stated that he used to purchase spare parts from the shop of Hari Prakash Tyagi. He further stated that the wife and children of Hari Prakash were residing separately but he could not tell whether the relations between the deceased and his wife and children were good or not. He was declared hostile and cross examined by the learned APP.
PW22 is Sarfaraz. He deposed that he does not know anything about this case. He was declared hostile. He denied that police met him in connection with this case. He denied that he was working as a mechanic with All India Tempo Transport. According to him, he was working as a mechanic on the footpath. He admitted that there was a lock on the shutter of Tyagi Motors and foul smell FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 15 of 52 16 was coming out of the shop. He admitted that Laxman Tyagi and Niranjan Tyagi, brothers of Hari Prakash Tyagi were called by Harkesh Sharma but he denied that he had broken the lock of the shutter with saria at the asking of Laxman Tyagi and Niranjan Tyagi. He stated that he gave the saria and the lock was broken by Laxman Tyagi and Niranjan Tyagi. He stated that he does not know that after breaking the lock, decomposed body of Hari Prakash Tyagi was found lying inside the bed. He denied that he had handed over the broken lock to the police.
PW23 is ASI Arjun Singh. He came at the spot with SI Neeraj Kumar and Constable Anil Kumar and remained associated in the investigation with the IO. He is also the witness to the arrest of accused Anil Kumar.
PW24 is HC Sudeep. He had accompanied Inspector R. Chandran to the spot. Later, he had accompanied SI Neeraj Tyagi and ASI Arjun Singh to DDU Hospital Mortuary for the postmortem of the deceased.
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PW25 is Constable Jaiveer Huda. He accompanied Inspector R. Chandran to the spot. He took the body to DDU Hospital mortuary with Constable Anil Kumar in Tata 407.
PW26 is HC Jai Prakash. He deposed that on 12.06.2004, he along with SI Sukhpal Singh and other police staff and both accused went at G.T. Karnal Road near Rai. Accused Vikas pointed out towards a polythene lying near the pulia. On checking the polythene, blood soaked clothes of both the accused were recovered. A key was also recovered from the pyjama of accused Vikas. The key was tied with a red colour thread. The polythene containing clothes and key were taken into possession. The accused then took the police team further on G.T. Karnal Road and recovered a dagger type knife from the bushes near nala which was seized vide memo Exbt. PW19/B. PW27 is HC Surender Kumar, Special Messenger. He had delivered the copy of FIR to the learned MM and to the senior officers of the police.
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PW28 is Constable Prahlad Singh. He deposed that on 11.06.2004, SI Neeraj Kumar, SI Tejpal, ASI Arjun Singh along with other staff went to Village Narsingh Pura for investigation and at about 9.00 pm, Inspector R. Chandran telephonically informed to SI Neeraj Kumar about the arrest of accused Vikas and the fact that the accused gave the name of his associate as Anil Kumar, son of Jai Bhagwan and that he was the resident of Village Narsingh Pura. Accused Anil Kumar was arrested near a tube well in the field vide arrest memo Exbt. PW19/A. On interrogation, he gave disclosure statement Exbt. PW19/C. He was then brought to the police station. Thereafter, he and Vikas had got recovered blood stained clothes and the dagger type knife.
PW29 is HC Banwari Lal, the then MHCM. He proved the relevant entries of Register No. 19.
PW30 is SI Khemender Pal Singh. He is the witness of investigation. He had assisted the IO Inspector R. Chandran in the investigation of the case.
FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 18 of 52 19
HC Jaspal was wrongly numbered as PW30. He is the witness of arrest of accused Anil from Village Narsingh Pura.
PW31 is Inspector R. Chandran. He is the IO. During investigation, he came at the spot, recorded the statement of complainant Harkesh Sharma and made his endorsement Exbt. PW31/B for the registration of the FIR. He then prepared the site plan Exbt. PW31/C and lifted the exhibits from the spot vide separate memos. The body was sent to DDU Hospital for postmortem. After postmortem, the body was handed over to accused Vikas vide memo Exbt. PW8/A. The blood stained clothes of the deceased were seized vide memo Exbt. PW19/L. On 9/10.06.2004, he recorded the statements of witnesses and gave notice under Section 160 Cr. PC to accused Vikas. On receipt of notice, accused Vikas came at the police station on 11.06.2004. On interrogation, accused Vikas confessed his involvement vide disclosure statement Exbt. PW30/A. He was arrested. SI Neeraj Tyagi was informed regarding the involvement of Anil Kumar and was asked to make search of accused Anil Kumar. On 12.06.2004, SI Neeraj Tygai produced Anil Kumar at police station. On FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 19 of 52 20 interrogation, accused Anil gave disclosure statement. Both accused then pointed out the place of occurrence vide pointing out memo Exbt. PW19/D. They then got recovered their clothes from a polythene from a drain under the pulia. Pyjama of accused Vikas contained a key. The clothes were kept in a pullanda which was sealed with the seal of AKS and was seized vide memo Exbt. PW19/N. The key was kept in a separate plastic jar and given serial No. B. The polythene also contained three rubber hand gloves. Site plan of the place of recovery was prepared. Accused then got recovered a dagger from the bushes and the dagger was having blood stained marks. Measurement of the knife was taken and a pullanda was prepared which was seized vide memo Exbt. PW19/B. During investigation, IO obtained the opinion regarding the weapon of offence and also got prepared the site plan from a draftsman. He had also seized the broken lock of the shop vide memo Exbt. PW19/K. The exhibits were sent to FSL and the FSL result was collected.
PW32 is Ms. Anita Chari, Senior Scientific Assistant, FSL. She proved the FSL reports Exbt. PW31/M and Exbt. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 20 of 52 21 PW31/N. PW33 is SI Ramesh Chander, Duty Officer. He proved the FIR Exbt. PW33/A.
4. Statements of accused were recorded wherein they stated that they were innocent. They did not lead any evidence in their defence.
5. Arguments have been heard from the learned Additional PP as also from the learned defence counsel. Prosecution case is admittedly based on circumstantial evidence. Prosecution is reling on following circumstances to prove its case:
i) Motive - there were strained relations between the deceased and his wife and children due to which, the wife and children of the deceased were residing at the house of parents of the wife of deceased at Harsingh Pura and accused Vikas, who is the son of the deceased, was demanding Rs. 10,000/ from his father for maintenance and wanted to grab the property of his father. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 21 of 52 22
ii) Previous attempt by accused Vikas to kill his father by giving him lassi mixed with poison.
iii) Recovery of blood stained clothes and the weapon of offence (dagger) having human blood at the instance of both the accused.
iv) Recovery of key of the lock of shutter of the shop of deceased Hari Prakash from the clothes of accused Vikas.
6. The learned defence counsel has argued that none of the circumstances from which an inference of guilt of accused can be drawn, have been proved. The challenge pertains not only to the motive but also the recovery of clothes and key at the instance of the accused. I have bestowed my thoughtful consideration to the contentions raised by the learned APP and the learned counsel of accused. It is too well settled in law that where the case rests squarely on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 22 of 52 23 found to be incompatible with the innocence of the accused or guilt of any other person. No doubt, it is true that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence which has been well settled by the Hon'ble Supreme Court.
7. In a most celebrated case reported in 1984 (4) SCC 116 Sharad Birdichand Sarda Vs. State of Maharashtra in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: " (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely may be fully established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other; hypothesis except that the accused is guilty. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 23 of 52 24
(iii) The circumstances should be of a
conclusive nature and tendency,
(iv) They should exclude every possible
hypothesis except the one to be proved, and
(v) There must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
8. The doctrine of circumstantial evidence was once again discussed and summarised in 2008 (1) JCC 597 Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra:
"..... It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 24 of 52 25 accused. Of course, the circumstance from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."
9. I shall now deal with circumstances and contentions raised on behalf of the parties one by one to see whether prosecution has been able to complete the chain of events in order to bring home the guilt of the accused.
10. The most crucial circumstance in this case is the evidence of motive. To prove this circumstance, prosecution examined PW2 Harkesh Sharma, PW5 Niranjan Tyagi, PW8 Suraj Bhan, PW9 Laxman Tyagi, PW10 Nilesh Kumar Tyagi and PW21 Mahesh Chand. Harkesh Sharma (PW2) deposed that he does not know as to what type of relations were there between accused Vikas and his father. He stated that he does not know anything about their family. In cross examination by the learned APP, he denied that he knew that deceased Hari Prakash Tyagi was very fearful about the FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 25 of 52 26 activities of his son. He denied that accused Vikas had beaten Hari Prakash in his shop. Mahesh Chand (PW21) deposed that he is aware that the wife and children of Hari Prakash Tyagi were living separate from him but he did not know whether the deceased was having good relations with his wife and children or not. In cross examination by the learned APP, he denied that he was having good knowledge of the family background of the deceased. He denied that Hari Prakash told him that his relations with his wife and children were not good. He admitted that accused Vikas used to meet his father Hari Prakash since last about 1 ½ - years prior of the occurrence and used to take money from him every month for his expenses but he expressed his ignorance about any quarrel between accused Vikas and deceased Hari Prakash Tyagi on account of any money transaction. Thus, both the independent public witnesses examined by the prosecution are of no help in establishing strained relationship between accused Vikas and the deceased.
11. Niranjan Tyagi, (PW5), Suraj Bhan (PW8) and Laxman Tyagi (PW9) are the brothers and Nilesh Kumar Tyagi (PW10) is FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 26 of 52 27 the nephew of the deceased. It appears from their testimonies that relations between the deceased and his wife were not cordial and that the wife of deceased along with her children including accused Vikas were residing at the house of her parents but the evidence of quarrels between accused Vikas and Hari Prakash Tyagi are vague. No specific instances of quarrel have been given. There are contradictions in the testimonies of the witnesses, in as much as, Niranjan Tyagi stated that Hari Prakash used to give Rs. 5000/ for the maintenance of his children but accused Vikas was asking for Rs. 10000/ and more but Laxman Tyagi deposed that accused Vikas was demanding Rs. 5000/ from Hari Prakash and that Hari Prakash told him that he was not in a position to give Rs. 5000/ 6000/ to him. With regard to the property being the motive, the Investigating Officer has not made any investigation to find out whether the shop and plot of Jhatikra were in the name of the deceased. If the testimony of Nilesh Kumar Tyagi is to be believed, the shop was in the name of the grandfather of accused Vikas and not in the name of deceased Hari Prakash. In cross examination, Nilesh Tyagi stated that Hari Prakash was not having any plot in his name in the village and all the property was in the name of his FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 27 of 52 28 grandfather and there had been no partition of the property. Laxman Tyagi also stated in cross examination that Hari Prakash was not having any ancestral or self acquired property at his native village at the time of the incident. He stated that the shop at Uttam Nagar, where the incident took place, was in the name of his father and the said shop has never been sold by his father to one Anil of Village Hastsal. Niranjan Tyagi also states in cross examination that the shop where the dead body of Hari Prakash was recovered was in the name of his father and that the said shop has been sold after the death of his brother. According to him also, there was no property in the name or in the possession of Hari Prakash in the village and no property was given during the lifetime of Hari Prakash by his father. It is thus evident that deceased did not own any property in his name i.e neither the shop nor any plot at the native village and therefore the question of accused Vikas asking Nilesh to ask the deceased to transfer the property in his name does not arise as the said properties were not in his name. Hence to say that accused had an eye on the property of deceased Hari Prakash or that he committed his murder as he was not transferring the properties in his name, is improbable. Since the properties were not in the name FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 28 of 52 29 of deceased, accused Vikas could not have gained anything by committing the murder of Hari Prakash Tyagi.
12. Nilesh Kumar Tyagi deposed that accused Vikas had asked him about some poison which can cause the death of a person. Suraj Bhan (PW8) also deposed that his son Nilesh told him 23 days prior to the incident that accused Vikas had asked him if there was any such poison which is not detected in the postmortem report. Thus, the brothers and nephew of the deceased were aware of the ill intentions of accused Vikas prior to the incident. As per the testimony of PW3 Harkesh Sharma, on 07.06.2004 when he noticed foul smell emanating from the shop of deceased Hari Prakash Tyagi, he suspected some foul play and called the brothers of deceased namely Niranjan Tyagi and Laxman Tyagi. In the evening, both his brothers came at the shop and got the lock broken and entered into the shop and called the police. Inspector R. Chandran, IO states that when he reached at the spot, Laxman Tyagi and Niranjan Tyagi were also present at the shop with other persons and they identified the body of Hari Prakash Tyagi. Since the murder took place under suspicious circumstances FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 29 of 52 30 and if Niranjan Tyagi and Laxman Tyagi knew about the evil intention of accused Vikas, they would have immediately informed the police as a natural reaction but this was not done and FIR was in fact recorded on the statement of Harkesh Sharma. Till then, there was no needle of suspicion on accused Vikas. On the next day i.e. 08.06.2004, statements of Suraj Bhan and Laxman Tyagi Exbt. PW31/J and Exbt. PW31/J1 were recorded regarding the identification of the body of Hari Prakash Tyagi. However, Suraj Bhan gave no statement to the police about what his son Nilesh told him. They put nail of suspicion on accused Vikas for the first time in their statements dated 09.06.2004. Their conduct in remaining silent for two days is not natural. As discussed earlier, their testimonies are not supported by any independent public witness. It is in evidence that after the death of Hari Prakash Tyagi, the entire family properties are in the control of his brothers. The possibility that with a view to grab the family property, they may have tried to frame accused Vikas in the present case therefore cannot be ruled out. So far as coaccused Anil Kumar is concerned, the only evidence against him is that he is the friend of accused Vikas but no motive has been attributed as to why he would join hands with FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 30 of 52 31 accused Vikas in the commission of murder of his father. Hence, in my opinion, prosecution has failed to prove the motive for murder.
13. As per allegations, on a previous occasion, accused Vikas brought lassi mixed with poison for the deceased. PW5 Niranjan Tyagi deposed that on 22.05.2004 accused Vikas had brought Roti and lassi and had poisoned it but his brother did not take the same as he had already taken the food but the same was consumed by a person named Shera who got ill after consuming the food and lassi and on noticing that the health of Shera had deteriorated, Vikas had spilled over the lassi. He stated that Shera was shown to the doctor as he was vomiting and the doctor confirmed that he had consumed some poisonous substance. In cross examination, he stated that he was informed of this fact by his deceased brother and has no personal knowledge about this fact. PW8 Suraj Bhan deposed that one week prior to his death, his brother Hari Prakash informed his younger brother Laxman on telephone that accused Vikas had mixed poison in the lassi and on suspicion, he did not consume the lassi and gave the same to some other shopkeeper Shera and that after consuming the lassi, Shera FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 31 of 52 32 became unconscious and was rushed to hospital and got medically examined. He stated that this fact was told to him by his brother Laxman. The testimony of Suraj Bhan is therefore hearsay and is inadmissible in evidence. PW9 Laxman Tyagi deposed that about 1012 days prior to the present incident, his brother Hari Prakash told him on telephone about the lassi incident. Neither of the three witnesses who deposed about the lassi incident, is an eye witness of the occurrence. There are contradictions with regard to the date when such information was given by the deceased to them. While one of the witnesses states that the telephone call was made by the deceased about one week prior to his death, the other witness states that the telephone was made about 1012 days prior to the incident. Two witnesses state that the deceased himself did not consume the lassi as by then, he had already taken the food while one witness states that he did not take lassi because of suspicion. The learned APP has argued that the doctor who had attended Shera, has proved that he had suffered food poisoning and therefore there is corroboration of the testimonies of the brothers of the deceased with regard to the lassi incident. Dr. Rakesh Sharma (PW6), who had checked up Shera, deposed that on asking, Sher FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 32 of 52 33 Singh had told him that he had started vomiting after eating something during the morning hours. Thus, the food poisoning occurred because of eating something and not taking lassi.
14. PW21 Mahesh Chand, who is an eyewitness,in whose presence accused Vikas allegedly brought lassi for Hari Prakash Tyagi and in whose presence Shera consumed lassi,has turned hostile. He denied that on 22.05.2004, accused Vikas had brought Roti and chhach (lassi) in a bottle for Hari Prakash from his village. He denied that chhach was bitter in taste and Hari Prakash asked him to throw the chhach outside and when he went out to throw the lassi, an old man Sher Singh, tea vendor,asked him to give the chhach to him. He denied that after consuming chhach, Sher Singh started sweating and became unconscious.He denied that Hari Prakash told him that his son Vikas had brought chhach mixed with poison to kill him. The most material witness of the lassi incident is PW2 Sher Singh. He too turned hostile. He denied that deceased Hari Prakash Tyagi or Mahesh Chand gave him anything for eating. In cross examination by the learned APP, he denied that accused Vikas visited the shop of Hari Prakash with food and lassi for him or FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 33 of 52 34 that at that time, Mr. Sharma was also present at the shop of Hari Prakash Tyagi. He denied that Mr. Sharma while saying that lassi was bitter, was about to throw it and on that, he told Mr. Sharma not to throw it and said that he would drink the same. He denied that he drank the lassi and after taking the same, he started sweating or that his condition deteriorated. He denied that Hari Prakash got him medically examined and told him that his son, with a view to kill him, had brought the lassi after putting some poisonous thing. Thus, the victim of the poisonous lassi has not supported the prosecution. Merely because in the opinion of the doctor, Sher Singh had suffered food poisoning after eating something, does not prove that he had fallen ill after consuming the poisonous lassi brought by accused Vikas. Thus, the second circumstance is also not proved beyond doubt.
15. Inspector R. Chandran (PW31) deposed that on interrogation, accused Vikas broke down and made a clean breast of his guilt by giving disclosure statement Exbt. PW30/A. Accused Anil Kumar was arrested by SI Neeraj Tyagi on 11.06.2004 and on 12.06.2004, he recorded his disclosure statement Exbt. PW19/C. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 34 of 52 35 Pursuant to their disclosure statements, both the accused got recovered their blood stained clothes from a polythene bag lying under the pulia near Neha Toka Private Limited Factory, G.T. Road, Rai, Sonepat and also got recovered a blood stained dagger type knife from the bushes near Dev Rishi Vidya Niketan, G.T. Road, Rai. The learned APP has argued that FSL report confirms the presence of human blood on the clothes and the knife and the doctor gave the opinion that the injuries on the body of the deceased could be possible with the said knife. It is argued that there is no reason to disbelieve recovery pursuant to the disclosure statement given by accused. Accused have not offered any explanation the presence of blood on their clothes and knife and therefore an inference can safely be drawn that accused after committing the murder, had thrown their blood stained clothes and knife, which were later got recovered by them. The learned defence counsel, however, submits that there is no public witness of recovery of the clothes and knife. There is no evidence that the clothes were belonging to accused. It is also argued that the recovery has been affected from an open public place accessible to all and therefore it is no recovery in the eyes of law. It is further FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 35 of 52 36 urged that the alleged recovery of blood stained clothes is planted and therefore no inference of guilt of accused can be drawn.
16. IO Inspector R. Chandran deposed that he gave notice under Section 160 Cr. PC to accused Vikas and in pursuance of the said notice, he came at the police station on 11.06.2004 and on interrogation, gave disclosure statement Exbt. PW30/A but disclosure statement of accused Vikas Exbt. PW30/A is dated 10.06.2004 and not 11.06.2004 as deposed by the IO. Thus, there is material contradiction with regard to the date of recording of disclosure statement of accused Vikas. Vide disclosure statement Exbt. PW30/A, accused Vikas offered to get the clothes and knife recovered but police remained silent for two days and affected the alleged recovery on 12.06.2004. There is no explanation why the recovery was not affected immediately after the disclosure statement of accused Vikas.
17. SI Neeraj Kumar and SI Khemender Pal Singh are the attesting witnesses to the recovery memos Exbt. PW19/M and Exbt. PW19/P. In cross examination, IO stated that no public FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 36 of 52 37 person was called from the factory to join investigation. He admits that the vehicles were passing from the road but no vehicle was stopped to join anybody in the investigation. SI Khemender Pal Singh (PW30) and SI Neeraj Kumar (PW19) also stated in cross examination that although traffic was passing from the road but no one was stopped to join the investigation. Thus, no attempt was made to join any independent person in the investigation at the time of alleged recovery despite their availability. The case would have been different if no public person was available or forthcoming. Public persons were not associated even at the time of recording the disclosure statements of the accused. In the case of Satish Chander @ Billa Vs. State 1995 (2) CC Cases 503 (HC), it has been held by the Division Bench of Delhi High Court that discovery under Section 27 of the Indian Evidence Act in the presence of subordinate police officers when the IO is taking his subordinate Constable as a witness for the incriminating discovery, then the same becomes very doubtful. It may be seen in the instant case that the attesting witnesses to the recovery memos are the subordinate police officials of the IO who himself was Inspector in the same police station. in the case of Satish Kumar Vs. State 1996 Crl. L.J. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 37 of 52 38 265, police had made recovery of blood stained weapon of offence at the instance of accused. The court found that no effort was made by the IO to join any independent witness at the time of alleged recovery. The evidence of recovery was held suspicious. In Para No. 33 of the judgment, the Hon'ble Court held that it is not understood how this basic principle of investigation has been lost sight of by the Investigating Officer that at the time of interrogating the accused and for making the recoveries, which are admissible under Section 27 of the Evidence Act, a sincere effort must be made by the Investigating Officer to join independent public witnesses. It is not the case that no such public witnesses were available or any sincere effort was made in joining the public witnesses but without success. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement.
18. In the case of State Vs. Ramesh 1998 II AD (Delhi) 42, it was held that nonjoining of independent witnesses to recoveries from places though such witnesses were available, would be FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 38 of 52 39 nothing short of violation or subsection (4) of Section 100 of the Code and such recoveries cannot have any semblance of connecting the accused with the crime and proving the guilt.
19. Similarly, in the case of Chander Pal Vs. State 1999 (1) R.C.R. (Criminal) 150, there was recovery of clothes of the deceased at the instance of accused persons. No public witness was joined though available. The Hon'ble Court held that this was the violation of Section 100 (4) Cr. PC and such recovery cannot be used to prove the guilt. The Hon'ble Court observed as under: "As pointed out above, PW1, in his evidence, has in unmistakable terms stated that public witnesses were very much present at the time of the recovery of the said Mudda Mal articles. It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it will be necessary for the Investigating Officer to take independent witnesses, if available, to the discovery/recovery under Section 27 of the Indian FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 39 of 52 40 Evidence Act and not taking highly interested persons and police officials as witnesses to the discovery/recovery, would render the discovery/recovery at least not free from doubt. The object underlying subsection (4) of Section 100 of the Code is to ensure an honest and genuine search/discovery and to prevent trickery by 'planting' the things to be 'found' at searches. 'Respectable' occurring in subsection (4) of Section 100 of the Code means in substance impartial and independent persons not connected with officialdom or police whose evidence may be relied upon."
20. Applying the principles laid down above, I am of the opinion that nonjoining of public witnesses as attesting witness to the disclosure statements or at the time of recovery, renders the recovery made at the instance of accused doubtful.
21. The leaned APP has argued that the witnesses to the FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 40 of 52 41 disclosure statements and the recovery are police officials and although there is no corroboration of their testimonies by independent public witnesses, still they cannot be disbelieved because their testimonies are straight forward and there is no infirmity or inconsistency in their testimonies and therefore there is no reason to disbelieve them.
22. Prosecution has examined five witnesses to prove the recovery at the instance of the accused namely Inspector Neeraj Kumar Tyagi (PW19), HC Jai Prakash (PW26), Constable Prahlad (PW28), SI Khemender Pal Singh (PW30) and Inspector R. Chandran (PW31). Inspector Neeraj Kumar Tyagi did not depose about the factum of alleged recovery. He was declared hostile and was cross examined by the learned APP. In the said cross examination, he admitted about the recovery part. PW19 could not tell whether the whole of the police team went for the recovery of polythene at the Nala. He could not tell the distance between the place of recovery of polythene and the main road. He could not tell the distance between the place of recovery of clothes and the place from where the dagger was recovered. He could not tell the FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 41 of 52 42 distance between the place of recovery of knife and the place where the vehicle was stopped. He could not tell whether the spot of recovery were photographed. PW19 has given evasive answers in cross examination and therefore he appears to be a planted witness and his testimony does not inspire confidence.
23. The first contradiction in the testimonies of the police witnesses is with regard to the distance at which the vehicle was stopped from the place of recovery. PW19 stated that the vehicle was stopped 100 meters away from the place of recovery, PW30 stated that the vehicle was stopped at a distance of 100 feet while PW31 deposed that the vehicle was stopped 50 yards away from the factory. With regard to the depth of the Nala from where the recovery was affected, PW26 stated that the depth of the Nala was 1.5 feet to 2 feet but PW30 stated that the depth was 5 to 6 feet from the main road. PW19 stated that the writing work was done at the place of the recovery while sitting in Tata 407, PW26 stated that the writing work was done while sitting on the pulia, PW30 deposed that writing work was done while sitting on the road while PW31 stated that writing work was done with the support of the vehicle as FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 42 of 52 43 there was no place for writing at the place of recovery of weapon. PW30 deposed that the place of recovery of weapon was 3 to 4 kilometers towards Sonepat from the place of recovery of polythene but PW31 stated that after the recovery of the clothes, he along with his team and accused went in search of the weapon of offence and that the weapon of offence was traced out after 100150 yards. PW19 stated that polythene was not visible from the main road but PW26 stated that the polythene which contained cloth was visible from the pulia. PW30 stated that the knife was not visible from the main road but according to PW26, knife was visible from a distance of 23 feet from the road. PW30 stated that the bushes from where the knife was recovered was 1520 feet from Metallic Road but PW31 stated that the weapon of offence was recovered within the limit of 50 yards from Metallic Road. PW26 stated that he does not remember whether the seizure memos bear his signatures. He stated that the seizure memos were in the handwriting of IO Sukhwinder Pal. Prosecution has not cited any witness by the name Sukhwinder Pal. Thus, it is apparent that the testimonies of recovery witnesses are full of inconsistencies and contradictions and therefore they do not inspire confidence and hence it shall be unsafe FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 43 of 52 44 to rely on their testimonies without corroboration from independent public witnesses. The recovery at the instance of accused appears to be doubtful.
24. The prosecution case is that the recovered clothes belonged to the accused and that they had changed the clothes after murder and threw them at the places from where they were allegedly recovered. To prove this, prosecution examined PW4 Praveen Kumar. If the prosecution case is to be believed, accused had hired his Tata Sumo on the night of 04.06.2004 and went to Uttam Nagar and after committing the murder, they changed their blood stained clothes on the way and kept them in a polythene and threw them in the area of District Sonepat and a little away from the said place, accused Vikas threw the knife but Praveen Kumar turned hostile in court and did not support the prosecution case. He did not identify the recovered clothes. Prosecution has therefore failed to prove by independent evidence that the clothes allegedly recovered at the instance of accused belonged to them or that they had thrown the clothes and knife at the place from where they were recovered. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 44 of 52 45
25. The clothes and the knife were sent to FSL. The FSL result confirms the presence of human blood on the clothes and the knife but the finding with regard to the blood group has remained inconclusive. Thus, there is no evidence that human blood found on the clothes and the knife was of accused. The learned APP relies on the case of Khuji @ Surendra Tiwari Vs. State of M.P. 1991 Crl. L.J. 2653 (1). In the said case, blood stains of human blood were found on the weapon and the clothes of the accused but the blood group of the stains was not determined. The Hon'ble Court held that the same does not make the find of human blood of no consequence as there was direct evidence that accused inflicted knife blow on the deceased. It was held that the find of human blood on knife and clothes of accused corroborates the direct testimony.
26. The judgment relied upon by the learned APP is not applicable to the facts and circumstances of the present case as in this case, there is no direct evidence and the case is based only on circumstantial evidence. In the case of Satish Kumar Vs. State 1995 (3) C.C. Cases 252 (HC), the blood group on the weapon of FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 45 of 52 46 offence could not be deciphered by the experts and only human blood was found on that article. It was held that it cannot be linked with crime in question. In the case of Surjit Singh Vs. State of Punjab AIR 1994 SC 110, a watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that the said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof.
27. In the decision reported as Narsinbhai Haribhai Prajapati Vs. Chhatrasinh & Ors. AIR 1977 SC 1753 the Supreme Court held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the house of the accused are wholly insufficient to sustain the charge of murder against the accused.
28. In the decision reported as Prabhoo Vs. State of U.P. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 46 of 52 47 AIR 1963 SC 1113, a kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Holding that it is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused and not with his innocence and that from the mere production of the blood stained articles by the accused, one cannot come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with the guilt of the accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and that the accused might have produced the said articles when interrogated by the police, the Supreme Court acquitted the accused.
29. The judgments relied upon above are applicable to the facts and circumstances of the present case. Applying the principles laid down in the aforesaid judgments, I am of the view that the mere presence of blood on the recovered clothes and knife are FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 47 of 52 48 not sufficient to prove that accused had committed the murder of deceased when there is no other clinching evidence on record.
30. The next circumstance on which prosecution relies is the recovery of key of the lock of shutter of the shop of deceased Hari Prakash from the pocket of pyjama of accused Vikas. The learned APP argues that after the commission of murder, accused had locked the shutter of the shop with the key which was later recovered at their instance. It is submitted that FSL result Exbt. PW31/L proves that the recovered key was found operating the lock of the shop which was recovered from the spot. It is argued that the body was recovered from the shop which was lying locked from outside and therefore the recovery of the key at the instance of the accused leads to the inference that it is the accused who had committed the murder and then locked the shop.
31. It has come in evidence that lock of the shop was broken in the presence of Niranjan Tyagi and Laxman Tyagi. IO Inspector R. Chandran deposed that he had seized the broken lock of the shop vide memo Exbt. PW19/K. As per seizure memo Exbt. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 48 of 52 49 PW19/K, the lock was not sealed. HC Banwari Lal (PW29), MHCM proved that the lock was deposited in the Malkhana in an unsealed condition. The relevant entry of Register No. 19 Exbt. PW29/A also proves that the broken lock was deposited in the Malkhana in an unsealed condition. However, as per FSL result, the lock which was sent to FSL, was in a sealed pullanda bearing the seal of AKS. There is no evidence that subsequent to the deposit of lock in the Malkhana, it was sealed by the IO. Therefore, a serious doubt has been created as to whether the lock sent to Malkhana was the same lock which was seized from the spot. Moreover, the lock seized from the spot was in a broken condition but there is no observation in the FSL report that the lock was received in a broken condition. The lock was not shown to the brothers of the deceased or to the other witnesses of the locality to prove that it was the same lock which was broken from the shop of Hari Prakash Tyagi. Thus, there appears to be serious possibility that some other lock was sent to FSL in a sealed condition for opinion and therefore the opinion of FSL and the recovery of the key is of no consequence. FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 49 of 52 50
32. CONCLUSION:
Prosecution has failed to prove any of the circumstances relied upon by them. Their case is only based on suspicion and it is a settled law that suspicion however strong, cannot take place of proof. In Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, it was held as under: "11. Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective substitute for the legal proof required to FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 50 of 52 51 substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
In State of U.P. Vs. Ashok Kumar Srivastava, 1992 (2) SCC 86, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 51 of 52 52 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt."
33. In view of the foregoing discussion, I am of the view that there are grave and serious doubts in the prosecution version. In my view, prosecution has not been able to establish the chain of circumstances so complete so as to reach the conclusion of the guilt of the accused by cogent evidence ruling out every other possibility consistent with the innocence of the accused. Both the accused are therefore acquitted. Their bail bonds are extended for a period of six months under Section 437A Cr. PC. File be consigned to Record Room.
(RAVINDER DUDEJA) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 22.12.2011.
FIR No. 458/04 State Vs. Vikas @ Bhola & Anr. Page 52 of 52