Delhi District Court
State vs Pramod on 27 May, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(FAST TRACK COURT), SOUTH-WEST DISTRICT,
DWARKA COURT, NEW DELHI
Presided by: MR. SHARAD GUPTA
Sessions Case No. 121/2017
CNR No. DLSW01-001680-2017
FIR No : 416/2016
Police Station : CHHAWLA
Under Section : 302 IPC
STATE
Vs.
PRAMOD
S/o Raju,
R/o H. No. F-28 B,
New Roshan Pura, Najafgarh,
New Delhi
Date of institution : 10.02.2017
Date of committal to Sessions Court: 13.02.2017
Date of receipt by way of transfer : 22.09.2022
Date of reserving judgment : 18.05.2024
Date of judgment : 27.05.2024
JUDGMENT
1. Vide this judgment, accused Pramod S/o Raju is being acquitted of the offences punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 416/2016 Police Station Chhawla, New State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 1 of 43 De1lhi for the reasons mentioned below.
CASE OF PROSECUTION
2. The case of the prosecution is that on 14.11.2016 at about 04:15 pm, at 1st Floor of House no. F-28/B, New Roshanpura, Najafgarh, New Delhi, accused Pramod gave several blows on the head of his brother Rakesh with an iron rod, causing multiple injuries resulting into his death.
3. The circumstances setting the criminal law into motion, as per the record of the case, are that on receipt of DD No. 5A dated 14.11.2016 qua the aforesaid incident, SI Shambhu Shah alongwith Constable Sunil reached at the spot. Inspector Mukhtiar Singh, who was patrolling was also informed over telephone and he also proceeded towards the spot. Ct. Bacchu and other police staff were also telephonically informed to reach at the spot. The place of incident i.e. room on the first floor of house was found having blood stains and the injured (since deceased) had already been shifted to RTRM hospital. Complainant Dal Chand was found present at the spot and he produced his brother i.e. accused Pramod and the weapon of offence i.e. blood stained steel Pipe to the police officials. Complainant Dal Chand got recorded his statement. In the meantime, the spot was got inspected through the crime team, exhibits i.e. blood samples and pieces of bedding were lifted from the spot. The sketch of the weapon of offence i.e. steel pipe was prepared and thereafter, it was sealed with the seal of SS and was seized. Thereafter, SI Shambhu Prasad reached at RTRM hospital from where he collected the MLC no. E111477 vide State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 2 of 43 which Rakesh S/o Raju had already been declared dead at 06.05 AM and the body had been shifted to mortuary. SI Shambhu Prasad prepared rukka and present FIR was registered on 14.11.2016 at around 09:00 am U/s 302 IPC. After registration of the FIR, further investigation was taken over by Inspector Mukhtiar Singh who was present at the spot. Investigating Officer Inspector Mukhtiar Singh seized the wearing clothes of accused Pramod which were having blood stains and the biological exhibits of the deceased, preserved by the concerned doctor during post mortem of the deceased. Site plan was prepared at the instance of the complainant. Accused Pramod was arrested in the present case and his personal search was conducted. On interrogation, accused made disclosure statement which was reduced into writing. During further investigation posted mortem on the body of deceased Rakesh was got conducted, subsequent opinion of the doctor regarding weapon of offence was obtained, scaled site plan was got prepared and statements of various witnesses were recorded. After completion of the investigation charge-sheet was filed in the court.
COURT PROCEEDINGS
4. In light of the police report and the documents filed alongwith the same, cognizance was taken vide order dated 13.02.2017 passed by the learned Metropolitan Magistrate.
5. After complying with the provisions of Section 207 of Cr.PC, the learned Metropolitan Magistrate, vide order dated 13.02.2017, committed the case for trial to the Court of Sessions.
State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 3 of 43 CHARGE
6. Vide order dated 20.11.2017 passed by Mr. Vivek Kumar Gulia, learned Additional Sessions Judge (Companies Act), Dwarka Courts, South West, Delhi, charge for the offence punishable under Section 302 Indian Penal Code was framed against accused Pramod. The charge was read over and explained to the accused, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
7. Vide order dated 22.07.2019, passed by the learned predecessor of this court, on accordance with the provisions of Section 294 Cr.P.C., accused was called upon to admit or deny the relevant documents relied upon by the prosecution. The accused admitted the factum of preparation and genuineness of
(i) FIR No.416/2016, (ii) scaled site plan, (iii) Report of Crime Team dated 14.11.2016, (iv) PM Report dt. 15.11.2016, (v) MLC of deceased dated 14.11.2016, (vi) death certificate of deceased, (vii) MLC of accused and (viii) the opinion of Dr. Pravindra dated 16.12.2016 which were accordingly, exhibited as Ex. A-1, Ex. A2, Ex. A3, Ex. A4, Ex. A5, Ex. A6 and Ex. A7 respectively. In view of the same, prosecution witnesses namely Duty Officer ASI Bala Rani, Sub-Inspector Surender Kumar Incharge Crime Team, Constable Ramesh Kumar Dr. Pravindra Singh and Dr. Rakesh Kumar were dropped from the list of witnesses.
PROSECUTION EVIDENCE
8. The prosecution in all examined twelve witnesses to State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 4 of 43 prove the allegations levelled against the accused.
9. PW-1 Sh. Dal Chand i.e. the complainant and PW-2 Dharambir are the brother of deceased Rakesh and accused Pramod. PW-3 Smt. Shakun is the mother of deceased Rakesh and accused Pramod. PW-5 Smt. Suman is the wife of accused Pramod. They are all eye-witnesses to the alleged incident.
10. PW-4 Sh. Raju is the father of deceased Rakesh and accused Pramod. He is a witness to the facts of the case and he had also identified the dead body of his son Rakesh in the mortuary vide identification memo Ex.PW4/1.
11. PW-6 Sh. Karan Singh is the cousin brother of deceased Rakesh and he had also identified the body of deceased Rakesh in the hospital vide memo Ex.PW6/1 and after post mortem the dead body was handed over to them vide memo Ex.PW6/2.
12. PW-7 Retired SI Vishnu Prasad was the Duty Officer who had recorded DD no. 5A, Ex.PW7/A, at about 04.35 on the night intervening 13/14.11.2016.
13. PW-8 Retired SI Shambhu Shah had participated in the investigation. He had reached at the spot on receipt of DD no. 5/A, recorded the statement of complainant, collected the exhibits from the spot, sealed the exhibits and weapon of offence with his seal, collected MLC from the hospital, prepared rukka and got the present FIR registered.
14. PW-9 HC Rakesh Kumar is the photographer from the mobile crime team and he had clicked twelve photographs, State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 5 of 43 Ex.PW3/PX2 (Colly) of the spot from different angles vide negatives Ex.PW9/A.
15. PW-10 Inspector Satbir Singh is the part investigating officer of the case. He had got he scaled site plan of the spot prepared, got the exhibits deposited at FSL and after completion of the investigation filed the charge-sheet.
16. PW-11 ACP Mukhtiar Singh is the main investigating officer of the case.
17. PW-12 Dr. Sarabjeet Singh is the Senior Scientific Officer FSL (Biology) Rohini who had examined the exhibits of this case and gave his report Ex.PW12/A and the allelic data Ex.PW12/B. DEFENCE OF ACCUSED
18. In his statement recorded under Section 313 Cr.PC, vide order dated 05.12.2022, accused has denied the entire incriminating circumstances appearing in the evidence against him and stated that no public witness has deposed against him. He stated that a false case has been registered against him and he has been arrested on false allegations after planting the case property upon him. He further stated that on the day of the incident, he was not present at his house and had gone to the house of Nand Ram at Jai Vihar to exchange currency as it was demonetization period. He added that his father had gone to their native place and there were some payments due towards some labour and his deceased brother was looking after the above said money issue. He further stated that for the purpose of taking State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 6 of 43 money, he had gone to Jai Vihar and when he returned on the next day, he came to know that his brother is more. He heard that some labourers had quarreled with his brother but the police had created a false case against him and the case property was falsely planted upon him. He stated that in the hospital he and his family members were in shock and were crying and the police officials took them to the police station and obtained their signatures on blank papers. The accused preferred to lead evidence in his defence and examined DW-1 Sh. Nand Ram.
19. DW-1 Sh. Nand Ram deposed that he knew the accused and his family for the last about 40 years. On 13.11.2016, accused Pramod came to his house and requested for change of old notes from the bank and stayed with him in the intervening night of 13.11.2016. They had food together and then slept. He stated that accused left his house at 05.00 am on 14.11.2016. In his cross-examination by Ld. Addl. PP for the State, he stated that it took about half an hour to come from house of accused to his house that he was not doing any work of currency exchange or related to currency. That it was a Sunday on 13.11.2016. That some currency notes, which were to be exchanged, were of Rs.500/- and some were of Rs.1,000/-.
20. The record has been carefully perused. The respective submissions of Mr. Girish Kumar Manhas, learned Additional Public Prosecutor for the State as well as Mr. N. K. Mishra, Ld. Counsel for the accused have been duly considered.
ANALYSIS AND FINDINGS
21. In order to prove the charge against the accused in State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 7 of 43 the respect of the offence punishable under Section 302 IPC, the prosecution was not only required to prove that the deceased Rakesh was murdered on the alleged date, time and place and in the manner as alleged, but also that it was the accused Pramod who had committed the said offence.
22. In order to establish that it was the accused Pramod Kumar who had committed the murder of his brother Mr. Rakesh (since deceased) as he had discovered the illicit affair between his deceased brother Rakesh and his wife PW5 Suman, the prosecution has examined four (4) alleged eye witnesses viz. PW-1 Mr. Dal Chand (brother of deceased Ramesh and accused Pramod), PW-2 Mr. Dharambir (brother of deceased Ramesh and accused Pramod), PW-3 Ms. Shakun (mother of the deceased Rakesh and accused Pramod) and PW-5 Ms. Suman (wife of accused Pramod).
23. PW-1 Mr. Dal Chand while appearing in the witness box deposed that they were five brothers and one sister and Mr. Rakesh, who was his brother is no more. He further deposed that he had appeared in the court in respect of murder of his brother Rakesh. He further deposed that the names of his brothers were Pramod, Surender, Rakesh and Dharambir and Pramod was his eldest brother and his other elder brothers are Surender, Rakesh and Dharambir. He further stated that Pramod and Surender were married. He added that Surender had by then (at the time of his examination in the Court) been divorced and the name of the wife of Pramod is Suman. He stated that accused Parmod and his wife were having one girl child of about 2 years of age. He added that they all used to reside together at H.No. RZF-28-B, F-Block, State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 8 of 43 New Roshan Pura, Najafgarh, New Delhi. He stated that his father was a Contractor by profession and the above said house was double storey i.e. ground floor and first floor. He added that he along with his brother Dharambir and his parents used to reside on the ground ground floor and that anybody can stay in any room of their house. He further deposed that on 14.11.2016 at about 5.30 - 5.45 am, he was sleeping in his house when he heard the door bell ringing and when he opened the main gate of his house, he saw 2-3 persons, few of whom were in police uniform and they informed him that there was a call made to the police on phone from his house. He further deposed that he told them that he had not made any call to the police, on which they entered into his house. He added that few police officials went on the 1st floor and from there they called them and when he went to the 1st Floor, he found that his brother Rakesh was lying on the floor and the blood was oozing out form his head. He further deposed that the police officials told him that they would do their official proceedings and told him to go downstairs. He added that after sometime, they were told to go outside of their house. He further stated that after 2 hours, 2-3 more police officials also came and they obtained his signatures on blank papers. He added that after few hours, his brother Pramod also came to their house and the police officials also obtained his signatures on some blank papers. He added that Pramod was not in the house in the intervening night of 13/14.11.2016. He stated that the police took Parmod with them. He further deposed that the body of his brother Rakesh was taken to RTRM hospital.
24. PW-1 Mr. Dal Chand was cross-examined by the State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 9 of 43 learned Additional Public Prosecutor for the State as he had resiled from his previous statement given to the police. During the cross-examination by the learned Additional Public Prosecutor for the State, PW-1 deposed that the police had obtained his signature on blank papers. Though he admitted that his statement dated 14.11.2016 bears his signatures, he clarified that he had not read over the same nor the same was read over to him. He denied the suggestion that the statement Mark 1/1 was given by him after the incident or that he had also read over the same prior to signing it. PW-1 deposed that he did not know to whom the mobile no. 9718741018 belonged to. He denied the suggestion that he had called the police from mobile number of his brother Pramod. He further denied the suggestion that on the intervening night of 13/14.11.2016 at about 4.00 am, he heard the shouts of his brother Pramod who was saying "uppar aao". He further denied the suggestion that he along with his brother Dharambir and his mother went to the upper floor where he found the room of his brother Rakesh locked from inside or that his bhabhi Suman was also inside the said room of Rakesh. He further denied the suggestion that Pramod was telling that Rakesh had ruined his family life and that Rakesh was having illicit affair with his wife. He further denied the suggestion that they knocked the door on which Suman i.e. his bhabhi opened the door and Rakesh was lying on the bed. He further denied the suggestion that Pramod asked Suman as to what she was doing in the room of Rakesh on which she replied that Rakesh was having headache and that she had gone there to press his head to give him relief from headache. He further denied the suggestion that Pramod State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 10 of 43 started beating Rakesh and gave him 5-6 fist blows or that all three of them with great effort rescued Rakesh from Pramod. He further denied the suggestion that then they tried to make Pramod understand not to fight and let their father come whereafter, they would talk. He further denied the suggestion that they had come down on the ground floor with Suman and Pramod remained at the upper floor. He denied the suggestion that after 10 minutes they heard the shriek and when they went to upper floor they found that Pramod was having one steel pipe in his hand and was beating Rakesh and Rakesh was lying unconscious on the floor. He was confronted with portions marked A to A1, B to B1, C to C1, D to D1, E to E1 and F to F1 of his statement Mark 1/1 where the above facts were recorded. He also denied the suggestion that they apprehended Pramod and called the police or that when the police came, he had handed over the steel pipe to the police. He admitted that his father and his brother Surender had gone to the village and that their house was having two stories. He admitted that the police had seized one iron rod from the spot where his brother was lying and blood was oozing out and that the seizure memo of the iron rod Ex. PW-1/PX1 bore his signatures at point A. He identified the iron rod Ex. P-1 stating that it was lying on the floor from where the police had seized it. On being shown the clothes, allegedly worn by accused Pramod at the time of the incident, he stated that he could not tell as to whom the said clothes belonged to. He denied the suggestion that the said clothes belonged to Pramod which were worn by him at the time of incident. PW-1 admitted that the sketch of iron rod Ex.PW-1/PX2 bore his signatures at point A. He, however, State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 11 of 43 volunteered that the police had obtained his signatures on blank papers. He admitted that the seizure memo of exhibits viz. blood lifted from the spot, part of pillow having blood stains and portion of blood stained bed Ex.PW-1/PX3 also bears his signatures at point A. He, however, once again volunteered that the police had obtained his signatures on blank papers and he was told to go to the ground floor while the police was conducting their proceedings. He added that he was not present at the spot when the police lifted the above said articles. He deposed that he did not know whether the police had seized the shirt and pant of accused Pramod which were having blood stain or that they had put the same in a pullanda and sealed the same with seal of SS. He admitted that the seizure memo of the clothes Ex.PW-1/PX4 bore his signatures at point A. He volunteered that his signatures were obtained on blank papers. He denied the suggestion that the that iron rod was seized by police after sealing it or that its sketch was prepared in his presence or that the clothes of the accused and exhibits mentioned in memo Ex.PW-1/PX3 were lifted by the police after sealing them in different pullandas, in his presence. PW-1 could not tell to whom mobile no. 9718741018 belonged and stated that the mobile number of his brother Parmod was 9210211908. He further deposed that there was a gali in the front and back side of their house and one gate opened in main gali and one gate opened at the back side gali. He stated that accused Pramod had gone to the house of one Nandram on that day as at that time notebandi (demonetization) was in operation and in order to encash the old currency notes, Pramod had gone there. He further deposed that Nandram was their State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 12 of 43 relative, therefore, Pramod stayed there. He added that probably Pramod had gone to encash Rs. 4,000-5,000/-. He stated that he had left the house at about 5.00 pm on 13.11.2016 and that the house of Nandram was about 3-4 km away from their house. He denied that he was deliberately creating the defence of alibi in favour of his brother in order to save him. He further denied the suggestion that he accused was present in the intervening night of 13/14.11.2016 at their house. He further deposed that no articles including cash, jewellery or other household articles were missing from his house. He further deposed that he had not filed any complaint in any court or before any police officer regarding the false implication of his brother Pramod. He denied the suggestion that deceased was having illicit relationship with his bhabhi Suman and on the date of incident, his bhabhi Suman was with the deceased in his room and upon finding the same, accused Pramod had killed his brother by hitting an iron pipe on his head. He denied the suggestion that he was deliberately not deposing the true facts and wanted to protect the accused from the due process of law. He also denied the suggestion that he was under any threat, coercion or duress imparted upon him by the accused. He denied the suggestion that he was won over by the accused. He denied the suggestion that accused Pramod had not gone to the house of Nandram on that day. He denied the suggestion that his signature were not obtained on blank papers or that he had signed the papers after reading the contents of same. He denied the suggestion that he was deposing falsely.
25. PW-1 was also cross-examined by the learned defence counsel wherein he admitted that on the intervening State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 13 of 43 night of 13/14.1.2016, accused Pramod was not present in the house.
26. Thus, the fact of PW1 turning hostile on material particulars shattered the prosecution version as he turned hostile with respect to the alleged motive for commission of the offence, happening of any incident, presence of accused Pramod at the spot as well as commission of murder of deceased Rakesh by the accused by giving several blows on the head of deceased. Thus, the testimony of PW1 is of no help to the prosecution.
27. PW-2 Mr. Dharambir, brother of deceased Rakesh and accused Pramod, who is also alleged to be an eye witness of the incident, deposed that they were five brothers and one sister viz. accused Pramod, Surender, Rakesh, Phoolwati, he himself (PW-2) and Dal Chand, in order eldest to youngest. He deposed that accused Pramod, Surender and Phoolwati were married and the name of wife of Pramod was Suman and the name of Surender's wife was Usha. He further deposed that the house in which they used to reside at Najafgarh was of double storey i.e. ground floor and first floor. He deposed that on the ground floor there were 3 rooms and Pramod and his wife used to reside on the ground floor in one room and in another room his father and mother used to sleep. He added that in the third room, he along with Dal Chand used to reside. He stated that there were 4 rooms on the 1st floor. That Rakesh used to reside on the 1st floor and Surender used to reside on the first floor with his wife Usha. He further deposed that on 14.11.2016, at about 5.00 am-5.30 am, someone knocked on the door of their house and when they along with Dal Chand opened the door, that they found that few State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 14 of 43 policemen were present there and they told them that one call had been received from their house. He added that they entered the house and few policemen went on the first floor and few remained there. He further stated that after 2-3 minutes the policemen called them on the 1st floor and when they went to the first floor of their house, they found that Rakesh was lying there in unconscious state and blood was oozing out from his head. He added that the body was lying in the room of Rakesh. He further deposed that the policemen told them to go downstairs as they wanted to conduct their proceedings. He stated that they i.e. he himself, Suman and his mother Sukan took Rakesh to the hospital with policemen where the doctor declared him dead. He deposed that the police took them to the police station Chhawla where Dal Chand and Pramod were already present. He added that Pramod was arrested by the police, however, he did not know why he (Pramod) was arrested as he had not done anything in connection with the murder of his brother Rakesh. He further deposed that on 13.11.2016, his brother Pramod had gone to the house of his uncle at Jai Vihar to exchange the notes because of notebandi (demonetization) and returned in the morning of 14.11.2016. He stated that he did not remember when they came back to their house.
28. PW-2 Mr. Dharambir was also cross-examined by the learned Additional Public Prosecutor for the State as he had resiled from his previous statement given to the police. During the cross-examination by the learned Additional Public Prosecutor for the State, PW-2 stated that his brother Surender and his father had gone to their ancestral village. He stated that State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 15 of 43 his mobile number at that time was 880091172. He, however, did not remember the mobile number of his brother Pramod which he was using at the time of murder. On being asked by the learned Additional Public Prosecutor for the State to refer to his mobile phone to tell the number of his brother Pramod, PW-2 stated that he had lost his mobile phone make Nokia in which mobile phone number of Pramod was saved.
29. He further deposed that he did not remember the starting digits or end digits of mobile which was used by his brother Pramod, that he does not know to whom the mobile number 9718741018 belongs to, that he used to have mobile number 8800911672, that presently, he was using mobile number 8384036401, that police had not recorded his statement during the investigation of the case.
30. He denied that the statement under section 161 Cr.P.C Mark 2/A was the statement which was given by him to the police, that he was deliberately denying the facts that Mark 2/A was statement given by him to the police. He deposed that he cannot confirm whether the mobile number 9718741018 belong to his brother Pramod.
31. He denied that on the date of incident Pramod used to reside with his wife on the first floor where Rakesh also used to reside, that he along with Dal Chand and his mother Sukan went on the first floor where they found Pramod there and the room of Rakesh was closed from inside and his bhabi Suman was inside the room of Rakesh or that Pramod was further shouting that Rakesh has ruined his matrimonial life as he was having State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 16 of 43 illicit relationship with his wife i.e. Suman, that they knocked the room on which his bhabhi opened the same and Rakesh was lying on the bed, that upon inquiry from Pramod, she had stated that Rakesh was having headache and she was pressing his head, that Pramod started beating Rakesh and gave him five six fists blows and thereafter, they got both of them separated and further told Pramod that matter would be discussed after the arrival of their father, that they brought their bhabhi Suman back to the ground floor and Pramod remained over there on the first floor, that after 10 minutes they heard shouting on which they again went back to the first floor where they saw that Pramod was beating Rakesh with one steel pipe and Rakesh was lying on the floor and blood was flowing out from his head, that they over powered Pramod and his brother Dal Chand called police from the mobile phone of Pramod and when the police arrived the steel pipe which was used by Pramod was handed over the police by them.
32. He admitted that police had seized one iron rod from the spot where his brother was lying and blood was oozing out.
33. He correctly identified the iron rod Ex. P-1 and accused Pramod. However, he stated that he cannot tell as to whom the case property ie one purple colour shirt having blue strips and one brown colour pant having blood stains on it belonged to.
34. He denied that the said clothes belonged to Pramod which were worn by him at the time of incident. He further deposed that he did not know whether the police had seized the State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 17 of 43 said iron rod by putting it in a cloth pullanda having seal of SS.
35. He further deposed that he did not know whether the police had seized the shirt and pant of accused Pramod which were having blood stains and put the same in a pullanda and sealed the same with the seal of SS, that he could not tell to whom mobile no. 9718741018 belongs to.
36. He further deposed that there is a gali in front and back side of their house, that one gate opens in main gali and one gate opens at the back side of gali, that accused Pramod had gone to the house of one Nandram on that day as at that time notebandi was in operation and in order to encash the old currency notes, he had gone there, that Nandram was in their relation as such Pramod stayed there, that he had gone to encash Rs. 10,000/-, that he had left the house at about 4.00-4.30 pm on 13.11.2016, that the house of Nandram was about 5-6 km away from their house. He denied the suggestion that Pramod had not gone to the house of Nandram on 13.11.2016.
37. He denied that he was deliberately creating the defence of alibi in favour of his brother in order to save him, that the accused was present in the intervening night of 13/14.11.2016 at their house. He further deposed that no articles including cash, jewellery or other household articles were missing from his house.
38. He further deposed that he had not filed any complaint in any court or before any police officer regarding the false implication of his brother Pramod. He denied that deceased was having illicit relationship with his bhabhi Suman and on the State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 18 of 43 date of incident, his bhabhi Suman was with deceased in his room and upon finding the same, accused Pramod had killed his brother by hitting an iron pipe on his head, that he was deliberately not deposing the true facts and wants to protect the accused from due process of law, that he was under any threat, coercion, duress imparted upon him by the accused, that he was being won over by the accused, that accused Pramod had not gone to the house of Nandram on that day and that he was deposing falsely.
39. During his cross-examination by Ld. defence counsel, he admitted that in the intervening night of 13/14.11.2016 accused Pramod was not present in the house.
40. Thus, the fact of PW2 turning hostile on material particulars shattered the prosecution version as he turned hostile with respect to the alleged motive for commission of the offence, happening of any incident, presence of accused Pramod at the spot as well as commission of murder of deceased Rakesh by the accused by giving several blows on the head of deceased. Thus, the testimony of PW2 is of no help to the prosecution.
41. Perusal of testimony of PW-3 Smt. Shakun reveals that she deposed that she was illiterate and have six children ie five sons and one daughter, that her son Rakesh has expired, her house was two storey building. She further deposed that there were four rooms on the 1st floor and 3 rooms on the ground floor, that she did not remember the date, month or year but on the date of incident, her son Rakesh was sleeping on the 1st floor and she along with her other son and daughter in law namely State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 19 of 43 Suman were sleeping on the ground floor, that Rakesh was unmarried at that time, that on that day, her son Surender and her husband Raju had gone to village, that she did not remember whether there was any staircase to got to the 1st floor from the adjoining vacant plots, that there was staircase to go to the 1st floor from inside the ground floor of the house, that accused Pramod was her son, that Pramod also used to live on the 1st floor, that one day prior to incident, in the evening, Pramod had gone somewhere, she did not know when accused Pramod returned.
42. She further deposed that in the early morning at about 4.00 am, police knocked the door of their house, that her daughter in law Suman opened the door, that she did not know who had called the police in her house, that they went upstairs, that she had remained on the ground floor, that after that she came to know that her son Rakesh is injured and then the police took him to the hospital, that she does not notice on which part of the body of her son Rakesh, injury were inflicted, that she does not hear any shouts of Rakesh at any time. She voluntarily deposed that she was sleeping at the relevant time and that she does not remember whether her statement was recorded by the police.
43. Court permitted Ld. Addl. PP for State to cross- examine the witness, as the witness was resiling from her previous statement given to the police.
44. During her cross-examination by Ld. Addl. PP for State she deposed that police had not interrogated her in State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 20 of 43 connection with death of Rakesh and that she did not remember whether police had recorded her statement.
45. She denied that she had made a police statement that on the day of incident at about 4.00 am, she had heard cries of Rakesh upon which she went to 1st floor where she saw that door of Rakesh's room was bolted from inside and her daughter in law Suman was also inside the room and her son Pramod was saying that Rakesh had ruined his marital life and had illicit relations with his wife Suman.
46. She further denied that she had made a police statement that upon knocking the door, Suman opened the door and on asking by Pramod as to what she was doing in the room of Rakesh, she told that Rakesh was having headache and she went to press his forehead, that she had made a police statement that accused Pramod started beating Rakesh and gave 5-6 blows to him and they tried to rescue Rakesh from Pramod and after pacifying Pramod she along with Suman came downstairs and Pramod remained on the 1st floor, that she had made a police statement that after about 10 minutes they heard the cries of Rakesh and after going upstairs they saw that Pramod was hitting Rakesh with a pipe on his head and blood was oozing out from his head and Rakesh was unconscious and that she had made a police statement that they overpowered Pramod with iron pipe and his son Dal Chand had made call at 100 number on finding Rakesh injured at the spot.
47. She further deposed that she did not remember whether Rakesh had died due to head injury, that she did not State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 21 of 43 know whether iron pipe with which Rakesh was beaten to death was seized by the police from 1st floor, and that she was not very sure whether the photographs Ex. PW-3/PX2 are of her house.
48. She admitted that accused Pramod was her eldest son. She denied that accused Pramod was present at 1st floor. She admitted that no one had entered their house from outside prior to incident. She deposed that she did not remember whether any public person or outsider were not with the police officials who came to their house. She admitted that she wanted to save her son Pramod from legal punishment.
49. She denied that she had deposed falsely only to save her son Pramod, that she had not deliberately replied about the material facts/events happened inside her house only to help her real son.
50. During her cross-examination by Ld. Defence counsel, she deposed that her son Rakesh used to do a job of labour, that she did not know where Rakesh was working, that she did not know whether Rakesh had any fight or quarrel with anyone prior to the incident, that Pramod and Rakesh were having very good relations, that Rakesh and Suman were having relationship in the nature of brother and sister, that Pramod had gone to Jai Vihar one day prior to incident for getting new currency notes for old ones. She admitted that she did not know about anything happened at the 1st floor of their house on the day of incident.
51. This testimony of PW-3 shows that she has turned hostile regarding the factum of being eye witness to happening of State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 22 of 43 the entire incident and involvement of the accused in the incident. She was cross-examined by the Ld. Addl. P.P for the State but she firmly denied all material leading questions put by the prosecution.
52. It is evident from the aforesaid testimony that the prosecution failed to extract any material in its favour despite detailed cross-examination as the witness firmly denied all the material suggestions. PW-3 further affirmed in her cross- examination conducted by the Ld. Defence counsel that accused Pramod had gone to Jai Vihar one day prior to incident for getting new currency notes for old ones and that she does not know about anything happened at the 1st floor of their house on the day of incident.
53. It emerges from aforesaid testimony that factum of commission offence punishable u/s 302 IPC by the accused is not established at all.
54. Perusal of testimony of PW-4 Sh. Raju reveals that he has deposed that he was father of deceased Rakesh. He deposed that deceased Rakesh was his son and accused Pramod was also his son, that he received the information of murder of his son Rakesh when he was in his village, that murder of Rakesh was committed in his room at the 1st floor of the house, that there was only on way to go to 1st floor from inside the ground floor of his house, that on 14.11.2016, he had gone to the mortuary of DDU Hospital where he had identified the dead body of his deceased son Rakesh vide identification memo Ex. PW4/1 and he does not know who had committed murder of State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 23 of 43 Rakesh.
55. Court permitted the Ld. Addl. PP for State to cross examine the witness as the witness was resiling from his previous statement.
56. During his cross-examination by ld. Addl. PP for State he denied that his statement was recorded by the IO. He admitted that accused Pramod was living with his wife on the 1st floor earlier, that deceased Rakesh was also living on the 1st floor. He denied that there was illicit relationship between deceased Rakesh and wife of accused Pramod and accused Pramod had suspicion of them, that on the day of incident, accused Pramod found his wife in the room of deceased Rakesh which was locked from inside due to which quarrel had taken place and then accused Pramod committed murder of deceased Rakesh and that he deliberately deposing falsely to save accused Pramod as he was his son.
57. During his cross-examination by ld. Defence counsel he deposed that deceased Rakesh was working as daily wage worker along with him. He admitted that quarrel had taken place between deceased Rakesh and labourer as the labourers were demanding their wages. He admitted that deceased Rakesh used to look after his work whenever he was out of station, that he did not know how the murder of Rakesh was caused. He deposed that on the day of incident, wife of accused Pramod was living on the ground floor with his wife as her daughter was small.
58. The testimony of PW-4 shows that he has turned State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 24 of 43 hostile regarding the motive for commission of the offence and even the factum of recording of his statement by the police. He was cross-examined by the Ld. Addl. P.P for the State but he firmly denied all the leading questions put by the prosecution.
59. It is evident from the aforesaid testimony that the prosecution failed to extract any material in its favour despite detailed cross-examination as the witness firmly denied all the material suggestions. PW-4 further affirmed in his cross- examination conducted by the Ld. Defence counsel that he did not know how the murder of Rakesh was caused and that on the day of incident wife of accused Pramod was living on the ground floor with his wife as her daughter was small had effect of demolishing the very foundation of the case.
60. Perusal of testimony of PW-5 Smt. Suman reveals that she was the wife of accused Pramod. She deposed that accused Pramod is her husband and deceased Rakesh was her brother in law (devar), that after marriage, she lived on the 1st floor of their house with her husband for about 2-3 montsh, that after she became pregnant, she started living on the ground floor, that deceased Rakesh was living on the 1st floor, that on the day of incident, her father in law had gone to village along with her another broher in law namely Surender, that she did not know how the murder of Rakesh was caused but his murder was caused at the 1st floor, that she did not hear his cries, that she did not know who had made call to police and that her statement was not recorded by the police.
61. Court permitted the Ld. Addl. PP for State to cross State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 25 of 43 examine the witness as the witness was resiling from her previous statement given to the police.
62. During her cross-examination conducted by Ld. Addl. PP for State she deposed that she was not so much educated, she was not able to recollect whether the day of incident was 14.11.2016, that she did not know at which time her husband/accused came to home on the day of incident, that she cannot tell whether her husband came in the early morning at about 4.00 am. She denied that at about 4.00 am in the early morning when she woke up to attend call of nature, deceased Rakesh was crying due to severe headache. She denied that Rakesh requested her to massage his forehead so she went to his room to give massage on his forehead or that her husband came to home at that time and started abusing her.
63. She denied that in fear she bolted the door of the room from inside upon which accused started shouting at her or that on hearing the shouting of accused, her mother-in-law and her brothers in law namely Dal Chand and Dharamvir came upstairs, that accuse was shouting that deceased Rakesh had spoiled his home and she had illicit relations with Rakesh.
64. She denied that when she opened the door, deceased was lying on the bed or that when accused asked her the reason as to what she was doing there, she replied that she had gone there to give massage to the head of Rakesh upon which accused gave Rakesh 5-6 punch blows.
65. She denied that accused and deceased Rakesh were separated and accused was made to calm down on the ground State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 26 of 43 saying that the matter will be sorted out after coming back of her father in law, that they all came down except her husband and deceased Rakesh who remained upstairs or that after about 10 minutes they heard the cries of deceased Rakesh.
66. She denied that when she went upstairs along with her brother in law and mother in law, she had seen that accused was hitting Rakesh with iron pipe and blood was oozing out of injury of Rakesh and that he was lying in unconscious condition or that they took Rakesh to the hospital, that statement Ex. PW- 5/DX1 was recorded by IO on her dictation, that she was not telling the time of coming of her husband/accused to home and that she was deliberately deposing falsely to save accused Pramod as he was her husband.
67. During her cross-examination by ld. Defence counsel, she deposed that her husband/ accused was doing job at the time of incident, that his duty hours were of day time, that accused was on holiday on the day of incident, that at the time of incident, she, her mother-in-law, her daughter and three brothers in law namely Rakesh, Dal Chand and Dharamvir were present at home. She admitted that deceased Rakesh was alone on 1st floor on the day of incident, that on the day of incident, accused had gone to his uncle namely Nand Ram for changing the currency notes, that he had gone in the evening, that she was sleeping on the ground floor with her mother-in-law, that the relation between Rakesh and accused were normal and that she did not know what had happened on the 1st floor on the day of incident.
68. This testimony of PW-5 shows that she has turned State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 27 of 43 hostile regarding the factum of being eye witness to happening of the entire incident and involvement of the accused or recording of her statement by the police. She was cross-examined by the Ld. Addl. P.P for the State but she firmly denied all the leading questions put by the prosecution.
69. It is evident from the aforesaid testimony that the prosecution failed to extract any material in its favour despite detailed cross-examination as the witness firmly denied all the material suggestions. PW-5 further affirmed in her cross- examination conducted by the Ld. Defence counsel that deceased Rakesh was alone on the 1st floor on the day of incident, that accused Pramod had gone to his uncle namely Nand Ram for changing the currency notes, that she was with her mother-in-law on the ground floor and that she did not know what had happened on the 1st floor on the day of incident had effect of demolishing the very foundation of the prosecution case. Thus, the testimony of PW 5 is of no help to the prosecution in the facts of the present case.
70. Having regard to the broad features of its case, the prosecution was required to establish firstly, that there was an illicit relationship between the deceased Rakesh and PW5 Suman, secondly, that on 14/11/2016 in the early hours, at around 4 AM accused Pramod had found out the said affair when he called PW1 Dalchand, PW2 Dharambir and PW3 Smt. Sakun upstairs where they found PW 5 Suman, wife of accused Pramod in the room of the deceased which was locked from inside; thirdly, that accused Pramod gave fist blows to the deceased and others had intervened in the said fight; fourthly, that PW1 State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 28 of 43 Dalchand, PW2 Dharambir, PW3 Smt. Sakun and PW 5 Suman then came downstairs and after about 10 minutes they heard screaming and going upstairs saw the accused giving blows on head of deceased with a steel pipe. However, as already observed PW1 Dalchand, PW2 Dharambir, PW3 Smt. Sakun and PW 5 Suman turned hostile on material particulars and did not support the prosecution version. They denied that there was any affair between the deceased and PW5 Suman or that on coming to know of the same the accused Pramod had murdered the deceased. Rather the testimonies of PW1 Dalchand, PW2 Dharambir, PW3 Smt. Sakun and PW 5 Suman has the impact of exonerating the accused from the allegations levelled against him. It emerges from testimonies of PW1 Dalchand, PW2 Dharambir, PW3 Smt. Sakun and PW 5 Suman that factum of commission offence punishable u/s 302 IPC by the accused is not established at all. Rather all the alleged eyewitnesses gave a plea of alibi of the accused stating that the accused was not present in the house having gone to the house of one relative to exchange old currency notes and had returned home after it was discovered that deceased Rakesh had been murdered
71. Perusal of the record shows that PW-1, PW-2, PW-3 and PW-5 are the eye witnesses of the incident. PW-6 Sh. Karan Singh identified the dead body of the deceased Rakesh vide memo Ex. PW-6/1 and received the dead body vide memo Ex. PW-6/2. Mere reading of testimony of police witnesses PW-7, PW-8, PW-9, PW-10 and PW-11 who went to the spot for investigation after receiving information of the alleged incident, shows that they are not eye witnesses of the incident and have State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 29 of 43 merely conducted the investigation based on the version stated by the complainant/victim after reaching the spot on the happening of the alleged incident. Furthermore, the testimonies of the eye witnesses i.e PW-1, PW-2, PW-3, PW-4 and PW-5 wherein they have firmly stated that police obtained their signatures on blank papers and denied about giving any statement to the police as well as witnessing the preparation of various arrest, personal search memos etc. indicate that chances of manipulation of the documents by the police cannot be ruled out. It further creates grave doubt upon the fairness and impartiality of the investigation which renders the same nugatory. So, testimonies of police witnesses, in view of the hostility of all the eye witnesses, are of no consequence to incriminate the accused for the alleged offence.
72. It is argued on behalf of the prosecution that there is sufficient scientific and forensic evidence on record to connect the accused Pramod with the commission of the offence. It is argued that one steel pipe was recovered from the spot and the same was seized by the investigating agency vide seizure memo Ex PW 1/PX1. That wearing clothes of the accused were also seized by the investigating agency vide seizure memo Ex PW 1/PX4. That during medical examination of accused Pramod vide MLC Ex A7, one bloodstain was noticed on his left middle finger. That swab of the said bloodstain was taken by the examining doctor and the same was seized by the IO vide seizure memo Ex PW 11/B. That the said biological exhibits were sent for forensic examination and as per report ExPW 12/A, genetic material of the deceased was discovered on the exhibits lifted State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 30 of 43 from the spot, on the wearing clothes of the accused, on the steel pipe used in commission of the offence and on the left middle finger of the accused. It is thus argued that the prosecution has been able to establish that the accused had murdered the deceased.
73. Firstly, the argument of the prosecution that the genetic material of the deceased was discovered on the wearing clothes of the accused can be considered. It is the prosecution version that the wearing clothes of the accused had been seized by the IO Insp. Mukhtiar Singh vide memo Ex PW1/PX4 in the presence of PW1 Dalchand and PW8 SI Sambhu Singh. However, it is pertinent to observe that PW1 Dalchand did not support the prosecution version in this regard and further stated that his signatures were obtained by the police officials on blank papers. During his cross-examination by Ld. Addl.PP for the state, although he admitted that Ex PW1/PX4 was the seizure memo of seizure of clothes of accused Pramod, however, he volunteered that his signatures had been obtained on blank papers. It would also be pertinent here to refer to the testimony of PW 8 SI Shambhu Shah. Pertinently PW 8 also did not support the prosecution version that clothes of the accused had been seized in his presence. During his examination in chief he stated that he did not remember whether clothes of accused were seized by the IO in his presence. A leading question was put to him and he again stated that he did not remember if the clothes of the accused were seized in his presence or not. Thus, both the purported witnesses in whose presence the clothes of the accused had been seized as per the prosecution version, did not support State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 31 of 43 the prosecution version in this regard. Thus, a reasonable doubt has been raised regarding the sanctity of the prosecution version regarding seizure of wearing clothes of the accused.
74. There is another aspect of the matter. Perusal of seizure memo ExPW 1/PX4 shows that there is over writing in the same on the point where the particulars of the seal impression are mentioned and apparently the seal impression was initially mentioned as "MS" which were later on over written and corrected to "SS". The seizure of the said clothes was effected by IO Inspector Mukhtiar Singh. The seal used however was having impression "SS" which incidentally was used by PW8 SI Shambhu Shah in seizure of other case property from the spot. The prosecution has not offered any explanation for the said over writing or use of the same seal which was previously used during investigation and seizure of articles from spot, in the seizure memo of the clothes of the accused on record. Coupled with the other facts, this fact also damages the veracity of prosecution version regarding seizure of clothes of the accused.
75. Furthermore, the said clothes were put to PW1 during his cross-examination by the state but he did not identify the same as the clothes of the accused and rather stated that he could not tell to whom the said clothes belonged. Similarly, the said clothes were put to PW2 Dharamvir but he also failed to identify them as the clothes of the accused and stated that he could not tell to whom the said clothes belonged. Both the witnesses denied the suggestions of Ld. Addl. PP that the said clothes were of the accused. Thus, a reasonable doubt has been raised regarding the identity of the wearing clothes seized by the State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 32 of 43 prosecution and the prosecution has not been able to establish that the clothes seized were in fact of the accused.
76. Now the argument of the state that genetic material of deceased was discovered on the left middle finger of the accused can be considered. At the outset, it is observed that even if this argument of the State is taken at its face value, the presence of the blood stains on finger of the accused by itself would not be conclusive or clinching evidence to establish that the accused had murdered the deceased. Furthermore, in the facts of the present case the deceased and the accused were real brothers. As per record, the deceased was taken to concerned hospital for his medical examination by about 05.54 am on 14.11.2016. As per DW-1, accused had left his house at around 05.00 am on 14.11.2016 and it took about half an hour to go to the house of accused from his house on foot. Thus, accused Pramod would have reached at his house prior to the deceased being taken to hospital. Furthermore, as per the prosecution version, blood of the deceased was found scattered at the spot and other family members were also present at the spot. In totality of the circumstances, especially considering the close relation between the deceased and the accused, the fact that blood of deceased had been scattered at the spot and the fact that other family members of the accused and deceased were present at the spot, it cannot be said that the presence of blood stains on left middle finger of the accused points conclusively towards his guilt. Rather, the blood stain could have come present on the finger of the accused for other reasons also and the accused cannot be convicted for murder of deceased Rakesh solely on the State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 33 of 43 strength of the blood stains having been found on the middle finger of left hand of the accused.
77. Now the argument of the state that blood of the deceased was found on the steel pipe recovered from the spot can be considered. As per prosecution version the said steel pipe was produced by PW 1 Dalchand before PW 8 SI Shambhu Shah. As per prosecution version PW 1 had identified the said steel pipe as the weapon of offence which was used by the accused Pramod to murder Rakesh and the said steel pipe was seized by PW 8 Si Shambhu Shah vide seizure memo EPW 1/PX1. However, as already observed PW1 Dalchand did not support the prosecution version in this regard. In his cross-examination by the state PW1 merely stated that police had seized one iron rod from the spot. Thus, there is nothing in the testimony of PW1 to connect the accused with the said iron rod. Furthermore, no chance prints were discovered on the said iron rod. To my mind, the presence of genetic material of the deceased on the said iron rod is insufficient to connect the accused with the said rod or to infer that the accused had used the said rod to murder the deceased.
78. It is further argued by the state that the PCR call in the present matter was made from mobile phone bearing No. 9718741018 by the accused Pramod to the effect that the caller had murdered his brother. In this context, no efforts were made by the investigating agency to trace out the owner of the said mobile phone number. The investigating agency did not collect the CAF or CDR of the said mobile phone number to show that the same was of the accused Pramod or was being used by him. Pertinently, PW 1 Dalchand and PW 2 Dharambir did not support State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 34 of 43 the prosecution version that the said mobile phone number belonged to the accused and both the said witnesses were cross examined by Ld Addl. PP for the state however they did not support the prosecution version in this regard. Thus, there is nothing on record to connect the said mobile phone number with the accused to show that the accused had made the said mobile phone call.
79. Now the defence version can be considered. The accused since the beginning of the trial had taken the plea of alibi. PW1 Dalchand, PW2 Dharambir, PW3 Smt. Sakun and PW 5 Suman was stated during course of their testimonies in the court that accused Pramod was not present in the house during the intervening night of 13-14.11.2016 but had returned later on. PW1 stated during course of his testimony that accused had gone to the house of their relative namely Nand Ram for exchanging old currency notes of about rupees 4000- 5000. Similarly, PW2 stated that on 13/11/2016 Pramod had gone to house of his uncle J Vihar to exchange old currency notes.
80. Similarly, PW3 also stated in her examination in chief that one day prior to the incident the accused had gone somewhere. In her cross examination by the accused, PW3 stated that accused had gone to Jai Vihar for exchanging old currency notes. Similarly, PW5 in her cross examination by the accused stated that accused had gone in the evening to house of his uncle namely Nand Ram for exchanging old currency notes.
81. It is a matter of record that accused has examined DW1 Nand Ram in his defence who has deposed that he knew State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 35 of 43 the accused and his family for the last about 40 years. On 13.11.2016, accused Pramod came to his house and requested for change of old notes from the bank and stayed with him in the intervening night of 13.11.2016. They had food together and then slept. He stated that accused left his house at 05.00 am on 14.11.2016.
82. DW1 was cross-examined at length but his veracity could not be shaken. In his cross-examination by Ld. Addl. PP for the State, he stated that it took about half an hour to come from house of accused to his house that he was not doing any work of currency exchange or related to currency. That it was a Sunday on 13.11.2016. That some currency notes, which were to be exchanged, were of Rs.500/- and some were of Rs.1,000/-.
83. Thus, the accused has consistently taken the defence of alibi since the commencement of trial. The prosecution witnesses consistently stated that the accused was not present in the house at the time of the incident and had gone to Jai Vihar to exchange currency notes in the house of his uncle namely Nand Ram.
84. It is argued on behalf of the state that the defence of the accused does not inspire confidence. It is further argued that PW1 and PW2 are the real brothers of the accused. PW3 is the mother of the accused while PW5 is the wife of the accused. That DW1 is also related to the accused being his uncle. It is thus argued that all of the said witnesses are interested witnesses and their testimony is not reliable. It is however well settled that testimony of witnesses cannot be discarded merely because they State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 36 of 43 are related to the accused. PW1, PW2, PW3 and PW5 are natural witnesses who were present in the house where the offence was committed even as per the prosecution version. It cannot be said that they are planted witnesses. The version of PW1, PW2, PW3 and PW5 is consistent with the version of DW1. Similarly, the defence of the accused has remained consistent throughout and was taken at the very inception of the trial during examination of PW1. To my mind the defence of the accused cannot be lightly brushed aside merely on the ground that the witness proving the defence is related to the accused.
85. It is argued on behalf of the state that there is contradiction in the testimony is of PW1 and PW2 regarding the amount of the currency notes to be exchanged. However, to my mind both PW 1 and PW 2 have consistently stated that the accused was not at their home in the night of 13-14/11/2016 and he had gone to the house of their relative to exchange old currency notes. The discrepancy regarding the amount to my mind is of no consequence and does not go to the root of the defence version.
86. Ld. Addl. PP for the state has also argued that DW1 was not working in any bank, was not doing any work of currency exchange or related to currency. It is further argued that it was a Sunday on 13/11/2016 and as such there was no occasion for the accused to go to the house of DW1 as has been urged by the defence. In this context it is observed that it is not the defence version that accused had gone to exchange any huge amount of currency. Rather as per the defence version the accused had gone to exchange a small amount from his relative which is neither State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 37 of 43 unbelievable nor unnatural. Furthermore, judicial notice can be taken that demonetization was announced on 08/11/2016, that is about 5 days prior to 13/11/2016. Thus, there was nothing unnatural in the accused going to the house of his relative for exchange of some old currency notes. Thus, the defence put forth seems credible and believable.
87. There is another aspect of the matter. Even if this argument of the state is taken at its face value and it is held that the accused was unable to furnish any viable defence even then failure of the accused to prove any cogent defence cannot be made the ground for convicting the accused when the prosecution story does not inspire confidence as a whole. It is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal. It is well settled having been held in a catena of judgments that the prosecution case has to stand on its own legs and cannot take benefit of any weakness in the defence version. It has been held in Sunil Kundu and Anr. Vs State of Jharkhand 2013(4) SCC 422 as follows:
"18. It was argued that the accused were absconding and, therefore, adverse inference needs to be drawn against them. It is well settled that absconding by itself does not prove the guilt of a person. A person may run away State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 38 of 43 due to fear of false implication or arrest. (See Sk. Yusuf v. State of West Bengal[5]). It is also true that the plea of alibi taken by the accused has failed. The defence witnesses examined by them have been disbelieved. It was urged that adverse inference should be drawn from this.
We reject this submission. When the prosecution is not able to prove its case beyond reasonable doubt it cannot take advantage of the fact that the accused have not been able to probablise their defence. It is well settled that the prosecution must stand or fall on its own feet. It cannot draw support from the weakness of the case of the accused, if it has not proved its case beyond reasonable doubt." (emphasis supplied)
88. Similarly, it has been held in Suchand Pal vs Phani Lal and others AIR 2004 SC 973 as follows:
"9. The Trial Court appears to have discarded the defence version highlighting unacceptability of the prosecution version, and came to a conclusion that the shot was made from a close range on the courtyard. This plea was taken at the argument stage by the prosecution, trying to read prosecution evidence in a manner so that the ocular evidence and medical evidence do not appear to be irreconcilable. The High Court was right in disapproving the course adopted by the Trial Court. It is an established position in law that prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 39 of 43 cannot take advantage of the weakness in defence case. The Court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it. The declaration made by the deceased was not voluntary and in fact the answer were not given by her and it was her husband who was answering. Such nature and manner of response from the injured who ultimately succumbed to injuries can by no means be elevated to the level of her "dying declaration", even when it is found to sound - "the voice of Jacob". Stand of the prosecution that he tried to clarify by stating that it was the accused who had fired the gun does not improve the situation. In the true sense of the term or in legal parlance statement made by the deceased cannot be called a dying declaration. In view of the admitted hostility and strained relations, the natural effort was to rope in the accused. The High Court, at therefore, discarded the evidence as not worthy of acceptance." (emphasis supplied)
89. It has been held in Narender Kumar Vs. State (NCT of Delhi) (2012) 7 SCC 171 as under:-
"However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 40 of 43 ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, AIR 2003 SC 1639)."
90. Thus, even if the defence of the accused is discarded or even if it is held unbelievable, even then the prosecution ver- sion cannot be taken as proved and accused cannot be convicted for the offence he has been charged with. The prosecution first has to discharge its onus and establish its case by leading cogent evi- dence on record. In the facts of the present case the prosecution has not been able to establish its case beyond reasonable doubt and the accused is entitled to benefit of doubt.
91. Prosecution case may be true but criminal jurispru- dence says that prosecution case must be true. There is a long dis- tance between "may be true" and "must be true". It is cardinal State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 41 of 43 principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence be- yond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. In a criminal trial however intriguing may be the facts and circum- stances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. Reliance may be placed upon the law laid down in Hansraj Vs. State of Haryana (2004) 12 SCC 257, Daya Ram v. State of Haryana, 1997(1) R.C.R.(Criminal) 662), Partap v. State of U.P. (SC) 1976 A.I.R. (SC) 966, Vijayee Singh v. State of U.P. (SC) 1990(3) S.C.C. 190, Nasir Sikander Shaikh v. State of Maharashtra (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab (SC) 1996(1) R.C.R.(Criminal) 465.
92. Following the aforesaid observations and considering that all the alleged eyewitnesses of the case turned hostile and did not support the prosecution version and there is no scientific or forensic evidence on record to bring home the guilt of the accused, this Court is of the view that prosecution has not been able to travel the entire distance from 'may have' to 'must have' and thus it can not be said that prosecution has been able to prove its case beyond reasonable doubts.
93. In view of the aforesaid discussion, this Court is of the view that the prosecution has not been able to prove its case against the accused persons beyond reasonable doubts.
State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 42 of 43 Accordingly, accused Pramod is hereby acquitted of the charge u/s 302 IPC. Bail bonds stands cancelled and Sureties be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any.
94. File be consigned to the Record Room after due compliance of Section 437 A Cr.P.C.
Announced in the open Court on 27th May, 2024.
SHARAD Digitally signed by SHARAD
GUPTA
GUPTA Date: 2024.05.27 15:57:48 +0530
(SHARAD GUPTA)
Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts, New Delhi State Vs. Pramod FIR No. 416/2016 PS Chhawla Page 43 of 43