Delhi District Court
State vs . Sumit S/O Sh. Munna Lal on 25 September, 2018
IN THE COURT OF SH. RAKESH TEWARI
DISTRICT & SESSIONS JUDGE (EAST):
KARKARDOOMA COURTS : DELHI:
SC No. 935/2016
CNR No. DLET010034942015
State Vs. Sumit S/o Sh. Munna Lal
R/o H.No. 17/264, Trilokpuri, Delhi.
FIR No. 718/2014
PS Mayur Vihar
U/s 302 IPC.
Date of Institution : 12.03.2016
Date of Reserving for Judgement : 14.09.2018
Date of Pronouncement : 25.09.2018
J U D G M E N T :
1. The prosecution case emanates from the facts that
on 17.11.2014, SI Mahmood. Hasan and Ct. Rampal received
DD No.6A regarding the fact that at about 3.30 hours, E50
Operator through telephone informed that at Trilokpuri 15
Block, near Aggarwal Sweet, beside the Nala, a Govt School
was under construction from where screaming sound of a man
was coming as "Sumit Bhai Chhor Do", and reached at 16
Block, Near MCD School, Trilokpuri, where on the road
between 15 Block towards 16 and 22 Block, Trilokpuri, there is
a MCD school on the right side of 22 Block and on the left side
SC No. 935/2016 State Vs. Sumit Page No.1/33
16 Block MCD School is situated, besides a pucca drain of dirty
water about 6.7 feet deep and about 2 feet wide having dirty
water and filth in it, and that Incharge PCR Van R67 was also
present there, and that on checking with the search light, some
part of a dead body was visible in the said drain and rest of the
dead body was submerged in the drain and there were cement
stones over the said dead body, and that in the meantime, SHO
along with Ct. Ram Babu and Ct. Ashok also reached at the said
place, and that crime team was called at the spot and SI Kaushal
Ganguly, the Incharge Crime Team along with photographer
reached at the said spot and inspected the spot, and that SI
Mahmood Hasan with help of his staff got recovered the said
dead body from the drain, and it was found to be a male dead
body, aged about 30 years, height 5'.7'', wheatish colour, with
black hair and stubbles and was having a long face, and it was
having blue and red full sleeves Tshirt on it with round stickers
on the same and BUFF COMESTED 1985 was written on it, and
it was having a jeans pant with blue colour sports shoes, and that
on the right hand there was a tattoo mark L.P. Tattoo and on the
left hand Bunty was written in design with tattoo, and on the
neck there was a black thread with a rudraksh and silver bead in
the same, and there was a red thread tied on the right hand side,
and there was a broken beer bottle glasses beside the said dead
body along with blood stains, and there was a cut mark on the
SC No. 935/2016 State Vs. Sumit Page No.2/33
right side of forehead of the said dead body, and on the left side
of the chest there was a red mark, and that the said dead body
could not be identified and caller could not be contacted, and
that SI Mahmood Hasan got preserved the said dead body vide
MLC No. 19648 dated 17.11.2014 in Mortuary, LBS Hospital
and he returned to the spot, and that on the basis of
circumstances and the MLC, an offence under Section 302 IPC
was registered and investigation was taken by Inspector Dheeraj
Singh.
2. During investigation, IO prepared the rough site
plan of the spot, lifted exhibits from there, and on knowing the
deceased to be Lalit Pal @Bunty got the same identified by the
father of deceased and the dead body was sent for postmortem,
and after postmortem, the dead body was handed over to Sh.
Rajender Pal, father of the deceased Lalit Pal @ Bunty, and also
got preserved the viscera of deceased and recorded statements of
witnesses.
3. As per the statement of Rajender Pal, father of the
deceased, on 16.11.2014 at about 7.00pm, he had seen his son
Lalit Pal @ Bunty with his friend Sumit, who resided at 17
Block, Trilokpuri, Delhi, and that the latter had taken the former
with him, and thereafter his son did not come back, and he
raised an accusing finger against Sumit that he (Sumit) had
killed his son, and that during investigation, Smt. Shivani, the
SC No. 935/2016 State Vs. Sumit Page No.3/33
caller of PCR Call was interrogated and she revealed that she
had heard cries of deceased Lalit at the spot and he was crying
"Sumit Bhai Mujhe Mat Maro, Mujhe Chhor Do" (Sumit do not
kill me, leave me).
4. During investigation, on a secret information, Sumit
was arrested and CDR of his mobile phone No. 8285804393 was
obtained, and it revealed that on the intervening night of 16/17
112014 at about 2.34am, the location of Sumit was at 15, 22
and 23 Block, Trilokpuri, and the accused Sumit confessed his
guilt that he had killed Lalit @ Bunty as he was sure that Lalit
@ Bunty would kill him if he did not kill him as the inlaws of
of Sumit were not ready to get their daughter married with Sumit
and wanted to kill him (Sumit), and the said fact was revealed by
Lalit @ Bunty to Sumit on the said night, and that Bunty and
Sumit along with a Beer Cartoon were wondering in a TSR on
the said night and were consuming beer, and that Bunty told him
that his inlaws had tried to give him (Lalit @ Bunty) contract to
kill Sumit, and if the former would have desired then he would
have killed the latter long back, and that scuffle between them
got worse, and thereafter at 16 and 22 Block, Trilokpuri MCD
School Delhi, Ganda Nala (Drain), accused Sumit wielded
blows on Bunty with cement stones and consequently, Lalit @
Bunty fell into the drain (Ganda Nala) and he kept wielding the
stone blows till the cries of Lalit stopped, and thereafter on
SC No. 935/2016 State Vs. Sumit Page No.4/33
confirming his death, he (Sumit) left towards 17 Block. Accused
Sumit was arrested in the case, his mobile phone was seized,
exhibits were sent to FSL, scaled site plan was prepared, PCR
form was collected and the PM report was obtained, and TIP of
the accused was got conducted who could not be identified by
Shivani, and the investigation culminated into a chargesheet
against the accused Sumit for offence under Section 302 IPC.
5. Charge for offence punishable under Section 302
IPC was framed against the accused by my Ld. Predecessor vide
his order dated 01.04.2015 to which the accused has pleaded not
guilty and claimed trial.
6. In order to substantiate its case, prosecution has
examined as many as 18 witnesses in the case, who are
discussed below.
7. Thereafter, the accused was examined under
Section 313 Cr.P.C, wherein he denied all the allegations
levelled against him. He claimed his false implication in the
instant case and asserted that on 16.11.2014, he was at his house
whole night as there was small family function in his house and
on the next day i.e. on 17.11.2014, at about 9.00am, one police
official came at his house and asked him to accompany him as
some inquiry was to be conducted by the SHO at PS. However,
to support his claim, he has examined his mother Ms. Kaushalya
as DW1, who deposed that on 16.11.2014, her son (the accused)
SC No. 935/2016 State Vs. Sumit Page No.5/33
returned from his office at about 6.00pm and on that day, he
remained at home for the whole night, and on the next day i.e.
on 17.11.2014, some police officials were calling her son from
outside her house and asked him to accompany them as SHO
was calling him, and that her son replied that he has to go to
office but the said police officials said that SHO would let him
go after an hour enquiry, and that in the afternoon, she reached
the PS and he came to know that her son (the accused) has been
falsely implicated in the case, and that on the next day, she gave
one application to the SHO but he said if she would give any
application, they would falsely implicate her son in more cases,
and thereafter her son was sent to jail.
In her crossexamination on behalf of the State,
DW1 replied that her son was implicated in the false case of
murder, and that she mean by the word "Murder" that the police
informed her that her son had killed someone, and that she was
not told by the police the name of the person who was allegedly
killed by her son, but one person was lying in the drain (nala),
who was killed by her son. She further replied that she had gone
to Senior Officers of the police for making a complaint against
the said false implication of her son, but they did not take her
any complaint, and as such, she could not submit the same and
now she could not produce the same, and that she had not filed
any complaint in a Court of law against the said false
SC No. 935/2016 State Vs. Sumit Page No.6/33
implication of her son and refusal of the Senior Officers of the
police to take her said complaint. She also replied that her son
was employed as Safai Karamchari in a Hotel at Noida at the
relevant time, and that she did not know any person by the name
of Lalit Pal @ Bunty being the friend of the accused (her son).
She also answered that she was informed by the counsel for the
accused to appear as a witness and that she was not a summoned
witness. She also answered that she did not know anyone by the
name of Shivani, wife of Jitender, a resident of 15/279,
Trilokpuri, Delhi.
8. I have heard Ms. Madhu Arora, Ld. Chief
Prosecutor for the State and arguments advanced by Sh. Kapil
Singhal, Advocate, on behalf of the accused and have also
perused the record.
9. Taking the official witnesses first, PW1 Ct. Naresh
Kumar collected exhibits of this case on 16.12.2014, on the
instructions of Inspector Dheeraj Singh, from MHC(R) vide RC
No. 103/21/14 and deposited the same at FSL, Rohini. PW4 Ct.
Madan took one wooden box containing viscera of deceased
Lalit Pal @ Bunty and one sample seal from MHC(M) vide RC
No. 101/21/14 on 12.12.2014 and deposited same against the
receipt and proved copy of RC as Ex.PW4/A and also proved
receipt of FSL as Ex.PW4/B. PW5 Ct. Ram Pal joined
investigation of this case on 17.11.2014 on receiving a call
SC No. 935/2016 State Vs. Sumit Page No.7/33
regarding seeking help of one person at Nala, near MCD School,
Block16, Trilokpuri, Delhi, and that he along with SI Mahmood
Hasan reached the spot, where they found some part of feet was
visible in the mud of Nala and complete body was under the
mud, and after 1520 minutes, SHO concerned, Ct. Ram Babu
and Ct. Ashok also reached at the spot; crime team was called
and spot was inspected and photorgraphed; dead body was taken
to LBS Hospital where doctor declared him as brought dead; and
after postmortem on the dead body, one pullanda of viscera, one
pullanda of cloth and sample seal were handed over by the
doctor to the IO, which were taken into possession vide memo
Ex.PW5/A. PW6 Ct. Ashok detailed similar facts as deposed by
PW5. PW7 Ct. Ram Babu had also deposed on the same lines as
deposed by PW5 and PW6, besides he got the case registered
and handed over copy of FIR and original rukka to the IO, and
that on 18.11.2014 he joined investigation of this case with Ct.
Ajay and Ct. Sanjeev and went to Block17, Trilok Puri, and that
the father of the deceased was also called, and at about 5.30pm,
secret informer informed the IO regarding the movement of
accused Sumit near Block18, and that as per the pointing out of
secret informer, accused Sumit, present in the Court, was
apprehended, and father of deceased also identified accused
Sumit and told the IO that he had taken the deceased with him
prior to his death, and accused was arrested vide memo
SC No. 935/2016 State Vs. Sumit Page No.8/33
Ex.PW7/A and his personal search was conducted vide memo
Ex.PW7/B, and on search, one micromax mobile was recovered
from the accused and the same was seized vide memo
Ex.PW7/C, and disclosure statement of accused was recorded
vide memo Ex.PW7/D, besides the pointing out memo
Ex.PW7/E, and he identified the said mobile phone as Ex.P1.
In his crossexamination on behalf of the accused,
PW7 replied that he did not remember whether he went to call
father of deceased to his house or not, and also did not
remember the exact place where they reached from Block17,
and that he did not remember whether IO had recorded any
statement of Rajender Pal regarding identification of accused
Sumit by him or not. He also replied that many public persons
were present at the time of arrest of accused Sumit by the IO and
that the IO had not requested the public persons present at the
spot to join the investigation.
10. PW8 Ct. Sanjeev Kumar deposed similar facts as
deposed by PW7 and identified the mobile phone Ex.P1 to be
the same which was recovered from possession of the accused.
However, in his crossexamination on behalf of the accused,
PW8 replied that statement of the father of deceased was
recorded by the IO at the spot, and that he did not remember
whether the signatures of father of the deceased was obtained on
the memos prepared at the spot or not. PW9 Sh. Raj Nath
SC No. 935/2016 State Vs. Sumit Page No.9/33
identifed the dead body of Lalit Pal @ Bunty in the mortuary at
LBS Hospital on 17.11.2014 vide memo Ex.PW9/A. PW10 Ct.
Ajay Kumar gave confirmation of facts deposed by PW7 and
PW8. In his crossexamination on behalf of the accused, PW10
replied that the accused was apprehended near a Balmiki
Mandir, Block18, Trilokpuri, and the distance between the
Balmiki Mandir and the place where IO received secret
information at Block17 was about 100 meters, and that he did
not remember as to how the father of the deceased was called to
the spot by the IO, and also did not remember the colour of the
pant and shirt of accused at the time of his apprehension. He
again replied, that he did not remember as to whether IO had
told Rajender Pal to sign the arrest memo of accused at the spot
or not, and that the mobile phone was recovered from possession
of accused before arrival of Rajender Pal at Block18. He also
answered that Rajender Pal also accompanied the police team to
police station from Balmiki Mandir, and that IO recorded the
statement Ct. Sanjeev, Ct. Ram Babu and Rajender Pal in the
PS, and that the Rajender Pal was present at the time of
recording the disclosure statement of accused by the IO. He
admitted that accused was not arrested from Block17,
Trilokpuri.
11. PW11 Ct. Pradeep Patel received a call on
27.11.2014 in this case from mobile phone No. 9212978717 and
SC No. 935/2016 State Vs. Sumit Page No.10/33
on receipt of the said information, he filled PCR form
Ex.PW11/A and forwarded the said call to Communication
Department. PW12 SI Kaushal Ganguly was working as
Incharge Crime Team, East District, on 17.11.2014, and he
along with HC Satender and photographer Ct. Satya Narayan
reached at Block16/22, School near MCD Khatta, Trilokpuri,
Delhi, and inspected the spot and Ct. Satya Narayn took
photographs of the spot from different angles, and that SI
Kaushal Ganguly prepared his detailed report Ex.PW12/A.
PW13 Ct. Sunil Kumar delivered the copies of FIR to area MM
and Senior Police officers. PW14 Dr. Pranav Kuumar prepared
the MLC of deceased Ex.P5 and on local examination there was
CLW 2 X 2 X 1 cm on right forehead and bruise on the left side
chest, and also issued death certificate in respect of the dead
body which he had examined and proved the same as
Ex.PW14/A.
12. PW15 SI Mehmood Hasan (Retd.) deposed that on
17.11.2014, he was posted at PS Mayur Vihar as SI and was
deputed on emergency duty from 8.00pm to 8.00am with Ct.
Ram Pal, and on that day, at about 3.35am, copy of DD No.6A
was assigned to him for action in the matter, and accordingly
reached the place between Block No.16 and 22, Trilok Puri,
Delhi, where a PCR Van was found stationed, and observed that
a dead body was lying in the drain, and that he informed the PS,
SC No. 935/2016 State Vs. Sumit Page No.11/33
and some cemented stone was lying over the dead body, Crime
Team was summoned at the spot; photographs of the dead body,
male 30 years, were taken; dead body was found with blue and
red coloured full Tshirt and blue coloured jeans pant and blue
coloured sport shoes were on feet; tattoo mark of Bunti was
there on the left hand of the dead body; broken pieces of bottle
were lying outside the nala where dead body was lying; and he
tried to locate the caller by dialing the number mentioned in the
DD entry 6A, but could not contact the caller, and that he
returned to the spot and on the basis of spot inspection, he
prepared rukka Ex.PW15/A and got the case registered, and that
IO Inspector Dheeraj lifted blood samples and earth control
samples from the spot and converted the same into cloth parcels,
affixed the seal of DS and took the same into possession vide
seizure memo Ex.PW15/B, and that the cemented stone was
taken into possession vide seizure memo Ex.PW15/C, and that
the broken pieces of beer bottle were lifted from the spot and
seized vide seizure memo Ex.PW15/D, and that one Rajender
Pal had come at the spot and identified the dead body to be of
his son Lalit @ Bunty on the basis of photographs, and that IO
prepared the site plan of the spot, and postmortem on the dead
body was also got conducted, and that case property was
deposited in malkhana, and that on 28.11.2014 he (the witness)
was directed by SHO to take witness Shivani to Tihar Jail for
SC No. 935/2016 State Vs. Sumit Page No.12/33
Tip of accused, but Shivani could not identify the accused
during TIP proceedings, and he obtained copy of TIP and
handed over the same to IO, and that he identified the
photographs Ex.P4/1 to 16 as that of the spot from where dead
body was recovered.
In his crossexamination on behalf of the accused,
PW15 replied that Rajender Pal came at the spot at around 5.00
6.00am from where the dead body was recovered, and by that
time, dead body had been transmitted to LBS Hospital, and that
he did not know who had informed Rajender Pal. He also replied
that Rajender Pal went to Hospital for identification of dead
body at around 9.00am and remained in the hospital upto
2.00pm till the postmortem was over.
13. PW16 Dr. Vijay Kumar Singh deposed that he had
conducted postmortem on the dead body of deceased Lalit @
Bunty and proved his report as Ex.PW16/A, and on 04.07.2016
on receipt of Chemical Analysis Report No. 2014/C9063 dated
24.04.2015 from CFSL, Delhi along with copy of PM report, he
gave subsequent opinion in respect of the cause of death as
asphyxia due to antemortem drowning with multiple injuries
caused by blunt force impact with hard object/surface, and that
the deceased had consumed ethyl alcohol prior to his death, and
267.40gm per hundred gm of blood was in highly intoxicated
state prior to his death, and that the death was homicidal in
SC No. 935/2016 State Vs. Sumit Page No.13/33
nature, and proved his subsequent opinion as Ex.PW16/B.
14. PW17 Inspector Dheeraj Singh was assigned further
investigation of this case on 17.11.2014, and he detailed all the
investigative steps taken by him during investigation, viz., he
prepared the site plan Ex.PW17/A; took into possession earth
control, blood stained earth, one broken beer bottle and four big
cement stones vide seizure memo Ex.PW15/B, C and D; carried
out the inquest proceedings and also executed the form 25.35(1)
(B) Ex.PW17/B; got identified the dead body of deceased by
Rajender Pral and Raj Nath and recorded their statements
Ex.PW9/A and Ex.PW3/A respectively; after the postmortem
examination, the dead body was handed over to Rajender Pal,
father of deceased vide handing over memo Ex.PW3/B; received
the viscera, clothes of deceased, blood on gauze and sample seal
and the same were taken into possession vide memo Ex.PW5/A;
and that on 18.11.2014, Ct. Ajay, Ct. Ram Babu, Ct. Sanjeev
and Rajender Pal joined the investigation, and reached near
Balmiki Mandir, 17 Block, Trilokpuri, and Rajender Pal
identified accused Sumit, who was arrested vide arrest memo
Ex.PW7/A and personal search was conducted vide memo
Ex.PW7/B, and his disclosure was conducted vide memo
Ex.PW7/D, and pointing out memo Ex.PW7/E was also
prepared, and that mobile phone make micromax was taken into
possession vide seizure memo Ex.PW7/C, and that on
SC No. 935/2016 State Vs. Sumit Page No.14/33
19.11.2014, he moved an application for TIPof the accused and
got conducted TIP proceedings Ex.P11, and that on 02.12.2014,
he received the PM report Ex.PW16/A and sent the viscera box,
sample seal and other documents to FSL Rohini through Ct.
Madan vide RC No. 101/21/14, and on 16.12.2014 sent other
exhibits relating to the biology division to FSL Rohini through
Ct. Naresh vide RC No. 103/21/14, and that on 29.12.2014, he
received the PCR form Ex.PW11/A, and that on 28.01.2015 site
plan Ex.P1 was got prepared from draughtsman, and filed the
previous crime record of the accused Ex.PW17/C, and that he
had also received the DD No. 11A and 12A, which are Ex.P8
and P9 respectively, and that he collected photographs Ex.P4/1
to 16 and recorded statement of Shivani Ex.PW2/A, and
identified the mobile phone as Ex.P1, pieces of glass of beer
bottle as Ex.P2, piece of blood stones as Ex.P3, cemented earth
control as Ex.P4, and the pieces of cemented stones as Ex.P5
collectively.
In his crossexamination on behalf of the accused,
PW17 replied that no relative of the deceased was present at the
spot when he reached there, and volunteered that they reached at
the spot after he reached there. He also replied that relative of
the deceased came there around 6.15am, and that he did not
remember whether father of the deceased was present at the time
of seizure of pieces of broken beer bottle and pieces of cemented
SC No. 935/2016 State Vs. Sumit Page No.15/33
stones, and volunteered he was unable to recollect whether
father of the deceased was present at the spot or he was sent to
the hospital along with body of deceased. He also answered that
as far as he remembered, father of the deceased went to hospital
after 8.00am, and that on 17.11.2014, he recorded the statement
of Shivani, father of deceased, photographer and Incharge Crime
Team, SI Mehmood Hasan and other staff members. He further
answered that as far as he remembered, he left the PS in search
of accused on 18.11.2014 after 3.00/4.00pm and made departure
entry in the DD register in this regard but did not remember the
number of the departure entry, and that he reached in Block
No.17, Trilokpuri, between 5.00/6.00pm, and that accused Sumit
was apprehended at the point of secret informer from near
Balmiki Mandir, and that he received secret information
between 5.00/6.00pm, and that father of the deceased was called
near Balmiki Mandir 17 Block, Trilokpuri, through staff
member but he did not remember his name, and that the accused
was apprehended in presence of Rajender Pal, father of
deceased. He also replied that he did not remember as to
whether father of deceased had also accompanied to the house of
accused or not, and disclosure statement of accused was
recorded at the place of his apprehension in presence of
Rajender Pal, Ct. Ram Babu and Ajay and there was third
Constable also, whose name he did not remember, and that he
SC No. 935/2016 State Vs. Sumit Page No.16/33
did not record statement of any witness at the place of
apprehension of accused, and volunteered that he recorded
statement of witness at the place of incident after his arrest
around 8.00pm and Rajender Pal was relieved from the place of
incident, however, he obtained signature of mother of accused
on the arrest memo when he visited the house.
15. PW18 ASI Rajinder deposed that on 17.11.2014, he
was posted as HC in PS Mayur Vihar and was on duty as
MHC(M), and that IO deposited case property of this case in the
malkhana and he made relevant entries in register No.19 at Sr.
No. 3200, 3201, 3202 and 3203, and the case property deposited
on 18.11.2014 by the IO was recorded at Sr. No. 3206, and that
the case property was sent to FSL Rohini vide RC No.
101/21/14 dated 12.12.2014 and vide RC No. 103/21/14 dated
15.12.2014 and proved relevant entires in register No.19 as
Ex.PW18/A, B and C and that of RC No. 101 and 103 as
Ex.PW18/D and Ex.PW18/E respectively, besides the
acknowledgement of FSL as Ex.PW18/F and Ex.PW18/G.
16. Coming to the public witnesses, PW2 Smt. Shivani
deposed that she did not recollect the exact date, month and
year, however, about 56 months had passed, it were night
hours, and that her fatherinlaw was sick, and he had discharged
his stools in clothes, and that she was washing his clothes, and in
the meantime she heard noise of quarrel, and she went to her
SC No. 935/2016 State Vs. Sumit Page No.17/33
home and made a call to police at the phone number 100 from
mobile phone No. 9212978717, and that police reached at her
home, and they recorded her name and address, and that the
noise was coming from the road side, and that after sometime,
she was called by the police to identify the person, and she was
taken to Tihar Jail but she could not identify that person in Tihar
Jail, and that she did not know anything else about this case.
When she was crossexamined on behalf of the State, she did not
utter a single word to show connection of the accused with the
alleged offence and she completely took somersault to her
previous statement Ex.PW2/A given to the police, and as such
her deposition could not give an iota of evidence against the
accused.
17. PW3 Sh. Rajender Pal deposed that on 16.11.2014
at about 7.00pm, he was standing in front of his house, and at
that time accused Sumit, present in the Court, came to his house
and took his son Lalit pal with him, and that the accused was
known to him (the witness) as he used to visit his house and
used to roam with his son Lalit Pal on earlier occasions also, and
that he was a labourer, and he was tired and slept at his home,
and that his son Lalit Pal did not return home during night hours,
and that he came to know this fact on the following day in the
morning when he woke up, and that he proceeded towards
Block17, Trilokpuri, in search of his son, and that some persons
SC No. 935/2016 State Vs. Sumit Page No.18/33
were present on the road who informed him that police of police
station Mayur Vihar was roaming with a photograph of a dead
person whose dead body was found in the drain, and that he
went to police station Mayur Vihar, and saw the photograph and
recognize that it was the photograph of dead body of his son
Lalit Pal, and thereafter, he accompanied the police officials to
LBS Hospital and he was shown the dead body in the mortuary,
and that he identified the dead body to be of his son Lalit Pal,
and his son Lalit Pal was killed by accused Sumit, present in the
Court, and that the entire locality people of Trilokpuri were
saying so because a lady Shivani had informed the police about
the name of accused Sumit, and that postmortem on the dead
body of his son Lalit Pal was conducted, and his statement to
this effect was recorded by the police, and that he identified his
signature at point A on the statement Ex.PW3/A, and that he had
taken the dead body of his son Lalit Pal after postmortem vide
receipt Ex.PW3/B, and that he identified the dead body of his
son Lalit Pal who was visible in photographs placed on judicial
record, and the same were marked Mark PW3/A to PW3/D, and
that he had identified the accused Sumit before the police also
and he was apprehended, and that the lady Shivani had given
statement before the Media also and she had clearly stated
before the Media about the name of accused Sumit, and that he
had clipping of her media statement in the mobile of his brother
SC No. 935/2016 State Vs. Sumit Page No.19/33
inlaw, and that he has preserve the same in the pen drive and
could produce the same in the Court, and that he had brought the
news clipping of this case reported in the "Hindustan Times" on
18.11.2014, and the said paper cutting containing the murder
news of this case is Ex.PW3/P1, and that the news clipping of
this case reported in the "Hindustan Times" on 19.11.2014,
containing the murder news of this case is Ex.PW3/P2, and that
the news clipping of this case reported in the Hindi Newspaper
"Hindustan" on 18.11.2014, containing the murder news of this
case is Ex.PW3/P3, and that the news clipping of this case
reported in the Hindi Newspaper "Navbharat Times" on
18.11.2014, containing the murder news of this case is
Ex.PW3/P4, and that he had also brought one CD containing
news of this case broadcasted by News Channel "Aaj Tak" and
produced CD make Writex No. 513527LD30336 on which
"Bunty Case Evidence" was written in red ink, and the said CD
was played in the Court and found containing the interview of
witness Shivani and the said CD is marked MarkP1, and that
on 18.11.2014, police called him (the witness) to Block 17,
Trilok Puri, and went there and found the accused Sumit, present
in the Court, was in police custody, and that he identified the
said accused and told the police that on 16.11.2014 in the night,
his son accompanied him (the accused).
In his crossexamination on behalf of the accused,
SC No. 935/2016 State Vs. Sumit Page No.20/33
PW3 replied that he did not know the house number and exact
address of Sumit, however, he knew that he (the accused)
resided in the area of 17Block, Trilokpuri, and that his son had
not visited the house of Sumit with him, and that his son was
inside the house when accused Sumit came, and that he was
outside at that time. He further replied that he did not remember
exact dates when accused used to visit his house prior to
16.11.2014, and that usually his son left for work at 9.30am and
returned at about 5.00600pm and his deceased son was wearing
shoes on 16.11.2014. He also replied that he did not know
Shivani personally, and that she visited his house after the death
of his son at about 4.00pm, and again said that she visited his
house on the eve of Pooja rituals of death ceremony (tehravi),
and that Shivani had not visited his house on 16.11.2014, and
that he did not know the house number of Shivani, and he came
to know regarding the death of his son on 17.11.2014 and police
had not visited his house in the intervening night of 16/1711
2014, and that the drain of Block 15 and 16 was situated at a
distance of 100/150 square yards from his house. He also
answered that his deceased son was not having his mobile phone
when he left the house on 16.11.2014, and volunteered hat he
had broken his mobile phone 56 days prior to 16.11.2014, and
that it was little bit dark when his son left on 16.11.2014, and
that he had visited the police station on 18.11.2014 at 9.30am
SC No. 935/2016 State Vs. Sumit Page No.21/33
regarding the present case for the first time, and again replied
that he had visited the police station on 17.11.2014 also but
exact time he did not remember, however, it was morning time.
He further answered that he was called on 17.11.2014 in the
police station to identify the dead body of his son and sign some
documents, and that accused Sumit was not present at police
station at that time, and that accused Sumit was apprehended in
his presence from 17Block, Trilokpuri in evening hours, and
that the police had already apprehended accused Sumit and he
had identified him in front of the police at Chowk, 17Block,
Trilokpuri, Delhi. He again replied that he did not know the
name of father of accused Sumit, and did not remember the time
when the police had visited his house on 18.11.2014, and he
could not say whether it was 4.00pm or 7.00pm, and that the
police met him in uniform and they were on foot. He also replied
that the distance between his house and Chowk, 17Block, is
half kilometer, and that after identifying the accused Sumit, he
came back to his house, and that the IO had not obtained his
signatures at 17Block, and that in his presence, no statement of
accused was recorded and that his statement was also not
recorded. He also answered that the accused Sumit called his son
from outside the house, and that he had not made any complaint
against the accused Sumit prior to this incident, and that, in his
presence, no quarrel had taken place between his son and the
SC No. 935/2016 State Vs. Sumit Page No.22/33
accused prior to this incident and that he did not know from
where and when accused was arrested by the police.
18. In this case allegedly there was one eyewitness
PW2 Ms. Shivani, who has not supported the case of the
prosecution at all and even she failed to identify the accused in
the TIP proceedings Ex.P11. In the extensive crossexamination
of PW2 on behalf of the State by the Ld. Addl. PP, nothing
could be brought on surface connecting the accused with the
offence.
19. Even otherwise, PW2 cannot be called an eye
witness as what she deposed in the court is that she heard the
noise of quarrel which was coming from road side and she came
to her house and made a call to the police at phone no.100 from
mobile no.9212978717 and this deposition is not finding
corroboration from DD No.6A, Ex.P7 where she has reported
that the voice of cries of a person was coming from a drain as
"Sumit Bhai Chhor Do" (leave me Sumit Bhai) and in her cross
examination on behalf of the State, she denied to have reported
the matter to the police with the above said words mentioned in
inverted comas. She specifically admitted in her said cross
examination that none of the family members of the accused or
any other person at the instance of the accused had approached
her at any point of time to pressurize her not to depose in the
present matter. She also denied to have made a statement to the
SC No. 935/2016 State Vs. Sumit Page No.23/33
police that the person from the drain was not only saying to
leave him but was assuring to return the money of said Sumit or
that Sumit was throwing the stones on the said person from
outside the drain. In these circumstances, she cannot be termed
as eye witness of the incident.
20. The remaining evidence on record is circumstantial
in nature, and it is necessary to repeat the law on the
appreciation of circumstantial evidence as laid down by the
Hon'ble Supreme Court and Hon'ble High Court of Delhi in
catena of judgments. Some of the same may be enumerated as
under:
In the case titled Umedbhai Jadavbhai Vs. State
of Gujarat, reported as AIR 1978 SC 424, in which in para 7
the Hon'ble Apex Court laid down as follows :
"It is well established that in a case resting on
circumstantial evidence all the circumstances brought out by the
prosecution must inevitably and exclusively point to the guilt of
the accused and there should be no circumstance which may
reasonably be considered consistent with the innocence of the
accused. Even in the case of circumstantial evidence, the Court
will have to bear in the mind the cumulative effect of all the
circumstances in a given case and weigh them as an integrated
whole. Any missing link may be fatal to the prosecution case."
SC No. 935/2016 State Vs. Sumit Page No.24/33
Again in the case titled Kishan Lal Vs. State, 1998
VI AD (DELHI) 177, case titled Chander Pal Vs. State, 1998
(2) JCC (Delhi) 207, Hon'ble High Court of Delhi held as
follows :
"It is settled position of law that in a case of
circumstantial evidence all the circumstances from which the
conclusion of the guilt is to be drawn should be fully and
cogently established. All the facts so established should be
consistent only with the hypothesis of the guilt of the accused.
The proved circumstances should be of conclusive nature and
definite tendency, unerringly pointing towards the guilt of the
accused. They should be such as to exclude every hypothesis
consistent with the innocence of the accused."
21. Judging in the light of the said law on
circumstantial evidence laid down by the said Superior Courts,
let me analyze the deposition of PW3 Sh. Rajender Pal, who is
father of the deceased and basically a witness of "Last Seen"
evidence. He has deposed that on 16.11.2014 at about 7.00pm,
he was standing in front of his house and at that time accused
Sumit, present in the Court, came to my house and took his son
Lalit Pal (the deceased) with him, and that accused was known
to him as he used to visit his house and used to roam with his
son Lalit Pal on earlier occasions also, and that his son Lalit Pal
did not return home during night hours, and that he came to
SC No. 935/2016 State Vs. Sumit Page No.25/33
know this fact on the following day in the morning when he
woke up and he proceeded towards Block17, Trilokpuri, in
search of his son, where some persons were present on the road
informed him that police of PS Mayur Vihar was roaming with a
photograph of a dead person, whose dead body was found in a
drain and that he went to PS Mayur Vihar, where he saw the
photograph and recognized that it was the photograph of dead
body of his son Lalit Pal. He further deposed that on 18.11.2014,
police called him to Block17, Trilokpuri, and when he went
there and found accused Sumit was in police custody, whom he
identified as the accused Sumit and told the police that on
16.11.2014 in the night, his son accompanied the accused. His
crossexamination has been reproduced by me above.
22. The law with regard to the "last seen evidence" has
been laid down by the Hon'ble Supreme Court in a recent
judgement, titled Ganpat Singh Vs. State of Madhya Pradesh,
reported as 2017 (4) JCC 2592, where the Hon'ble Supreme
Court held as follows in para 10 of the judgement :
"Evidence that the accused was last seen in the
company of the deceased assumes significance when the lapse of
time between the point when the accused and the deceased were
seen together and when the deceased is found dead is so minimal
as to exclude the possibility of a supervening event involving the
death at the hands of another. The settled formulation of law as
SC No. 935/2016 State Vs. Sumit Page No.26/33
follows :
"The last seen theory comes into play where the
time gap between the point of time when the accused and
deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the
accused being the author of crime becomes impossible. It would
be difficult in some cases to positively establish that the
deceased was last seen with the accused when there is a long gap
and possibility of other persons coming in between exists. In the
absence of any other positive evidence to conclude that accused
and deceased were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases".
23. Hon'ble Delhi High Court in case titled Deepak
Chaddha Vs. State, reported as 2012 (1) JCC 540 has held
that deceased and the appellant were last seen together at
7.30pm when the two left the house of the deceased, and that the
deceased was found grievously injured happens to be a public
street at around 10.15pm and this time gap of about 2 hours and
45 minutes does not rule out the possibility of somebody else
being the assailant.
24. Again Hon'ble High Court of Delhi in case titled
Ravi Kumar @ Sonu Vs. State, reported as 2013 (2) JCC
1394, where gap of 15 hours was there between last seen
evidence and recovery of the dead body and it was held that
SC No. 935/2016 State Vs. Sumit Page No.27/33
possibility cannot be ruled out that in the course of the night
other persons would have boarded the TSR of the deceased for
killing him.
25. Similar were the findings of the Hon'ble High Court
of Delhi in the cases reported as 2011 (3) JCC 1532 and 2017
(2) JCC 932.
26. Judging in the light of the said law laid down by the
said Superior Courts with regard to last seen evidence, PW3 Sh.
Rajender Pal saw the accused in the company of the deceased
last time on 16.11.2014 at 7.00pm, and as per rukka (the original
complaint) vide DD No. 6A, Ex.PW15/A the dead body was
found at 3.30am on 17.11.2014, i.e. after a gap of 8 hours and 30
minutes. In the said circumstances, the possibility of any other
person intervening in between, cannot be ruled out and it is
difficult to believe the evidence of "last seen together".
27. So far as location of accused near the area as per
Call Details Record of his mobile phone is concerned, no
witness had been cited nor summoned to prove the CDRs on
record nor any Nodal Officer of any mobile phone company has
been summoned to prove the same and prove a certificate U/S
65B of the Evidence Act.
28. Although motive is not an essential ingredient to be
proved in a murder case but if the case is resting on
circumstantial evidence, then the motive becomes important to
SC No. 935/2016 State Vs. Sumit Page No.28/33
be established by the prosecution. In the present case no such
motive has been established against the accused to commit the
crime. PW3 has specifically answered in his crossexamination
on behalf of the accused that he had not made any complaint
against accused Sumit prior to this incident. He specifically
admitted that in his presence no quarrel had taken place between
his son and accused prior to this incident. PW3 even did not
know the name of the father of the accused Sumit nor his
address. Similarly, the PW2 Ms. Shivani also denied to have
stated to the police that the deceased was telling one Sumit Bhai
to return his money, in her crossexamination on behalf of the
State. The absence of motive on the part of the accused, thus,
gives further jolt to the "last seen theory" of the prosecution.
The reference here may be made of a judgment of Hon'ble
Supreme Court titled Raj Kumar Vs. State of M.P. reported
as 2004 (3) JCC 1421, and that of the Hon'ble High Court of
Delhi in case titled Sunil Kumar Vs. State reported as 2017
(2) JCC 932.
29. Moreover, the witness of the "last seen evidence",
the PW3, is none else but father of the deceased and the
possibility of his being an interested witness cannot be ruled out.
Further, there is a delay in recording the statements of PW3 on
17.11.2014 by the police after the recovery of the dead body and
SC No. 935/2016 State Vs. Sumit Page No.29/33
after he identified the dead body in the mortuary where it was
shifted for postmortem examination, whereas first he claimed to
have seen the photographs of the deceased and recognized the
same that of dead body of his son Lalit Pal and this he did as
soon as he reached the police station Mayur Vihar for the said
purpose because he was already knowing through some persons
present on the road, who had informed him that police of PS
Mayur Vihar was roaming with a photograph of a dead person,
whose dead body was found in the drain. In his cross
examination on behalf of the accused, PW3 has wiped out his
examination in chief by answering that he came to know
regarding the death of his son on 17.11.2014 and that police did
not visit his house in the intervening night of 1617.11.14. He
further answered that he had visited the police station on
18.11.2014 at 9.30 a.m. regarding the present case for the first
time but he again reformed himself by saying that he had visited
the police station on 17.11.2014 also but he did not remember
the exact time. He further replied that he identified the accused
Sumit when the police had already apprehended him. He further
admitted that his statement was also not recorded and replied
that he did not visit the police station in the evening of
17.11.2014 but again said that it was on 18.11.2014. No
explanation has been given as to why his statement was not
recorded then and there when he identified the photograph as
SC No. 935/2016 State Vs. Sumit Page No.30/33
that of dead body of his son, the deceased, when he had done so
in the police station at the first instance as alleged by him in his
said deposition.
30. Furthermore, PW16 Dr. Vinay Kumar Singh, the
autopsy surgeon in his opinion regarding cause of death has
given as asphyxia due to antemortem drowning with multiple
injuries caused by blunt force impact with hard object/ surface
and that the deceased had consumed ethyl alcohol prior to his
death and 267.40 gm, per 100 gm of blood was in highly
intoxicated state prior to his death. The alleged weapon of
offence that big pieces of cemented stones were not recovered at
the instance of the accused nor there is any other identification
of the same as weapons of offence. Moreover, in the seizure
memo of the cemented stones Ex.PW15/C, the date is mentioned
as 17.11.2014. Similarly, in the seizure memo of glass pieces of
the broken bottle of beer is having the date as 17.11.2014,
whereas the accused was arrested on 18.11.2014 at 7.00 p.m. as
per arrest memo Ex.PW7/A. As such, there is no recovery of
alleged weapons of offence at the instance of accused nor the
same were otherwise put to the autopsy surgeon for his opinion
as to whether injuries suffered by the deceased could have been
caused by the said cemented stones.
31. PW3 Rajinder Pal, the father of the deceased has
further brought on record the clippings of some newspapers and
SC No. 935/2016 State Vs. Sumit Page No.31/33
a CD allegedly containing an interview of PW2 Shivani to the
media which is mark P1 and clippings of the newspapers are
Ex.PW3/P1, Ex.PW3/P2, Ex.PW3/P3 and Ex.PW3/P4.
32. The said newspapers clippings and the CD have
been brought on record for the first time by PW3 and
admittedly, the same were never relied by the prosecution in the
chargesheet nor the same are mentioned in the statements of
PW3 recorded by the police.
33. In my considered opinion, the said clippings of the
newspapers and the CD have not been proved as per Law of
Evidence because neither the master scripts of newspapers have
been summoned from the offices of the concerned newspapers
nor the correspondents, who have reported the matter in the
newspapers, have been summoned as witnesses to prove the same. Similarly, the original recording of the alleged interview of PW2 Shivani has not been summoned from the concerned Media House to prove the same. Merely by giving an exhibit number to a document does not mean that it has been proved as per law.
34. The said newspapers clippings and the CD were not, even otherwise, confronted with PW2 Shivani, by calling her U/S 311 Cr.P.C., to the witness box. As such, the said newspapers clippings and the CD do not come to the help of the prosecution nor the same can be read as evidence nor the SC No. 935/2016 State Vs. Sumit Page No.32/33 evidentiary value of the same can be appreciated.
35. Thus, the links of the chain of circumstances, in themselves, have not been proved beyond doubt so as to form a complete and unbroken chain to point out that it was the accused and none else, who has committed the offence. The chain of circumstances is not only broken but based upon weak pieces of evidence which are difficult to be relied.
36. In view of my said discussions, I am of considered opinion that the prosecution has miserably failed to bring home the guilt of the accused beyond reasonable doubt and as such, the benefit of doubt is extended to the accused and he is acquitted of the offence U/S 302 IPC. He be set at liberty, if not wanted in any other case.
37. The file be consigned to Record Room.
Digitally signed by RAKESH TEWARI RAKESH Location:
TEWARI karkardooma
Date: 2018.09.25
14:22:32 +0530
Dictated in the Open Court (Rakesh Tewari)
directly to the steno, checked District & Sessions Judge (East)
on the computer screen and Karkardooma Courts, Delhi.
announced in the Open Court
on this 25th day of September, 2018.
SC No. 935/2016 State Vs. Sumit Page No.33/33