Delhi District Court
State vs . Naresh @ Babloo on 18 August, 2008
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IN THE COURT OF SH. DILBAGH SINGH PUNIA: ADDITIONAL SESSIONS JUDGE :
KARKARDOOMA COURTS : DELHI :
Sessions Case No. 372/06
Date of Institution :14.9.2006
Date on which reserved for order : 18.8.2008
Date of Delivery of Judgment : 18.8.2008
State Vs. Naresh @ Babloo
S/o Shri Parsanjit Tyagi
R/o Village Poothi,
PS Parkshit Garh,
Distt. Meerut, U.P.
FIR No. 141/00
PS Welcome
U/s 203/302/120B/118/117/182 IPC
J U D G E M E N T :
1. Accused Naresh @ Babloo was declared as proclaimed offender as is evident from the report under Section 173 Cr.P.C. dated 10.7.2006. The brief contents of the same are, therefore, being adverted to.
2. On 15.5.2000, on receipt of DD NO.24 A at about 5.49 a.m., SI Shiv Shankar along with Const. Vinay reached house no.C6/25, 33 Foota Road, Kabir Nagar, Delhi. He found dead body of one Lokesh @ Lovely d/o Shri Prasanjeet Tyagi (one of the accused since acquitted), completely smeared with blood. SI Shiv Shankar noted that articles of the room were scattered here and there. It was revealed that one injured namely Pushpa had been removed to GTB Hospital by PCR van.
3. SI Shiv Shankar left Const. Vinay for guarding the spot and reached GTB Hospital. He collected MLC of injured Pushpa, who was declared fit for making a statement. Statement of Pushpa was recorded.
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4. Smt. Pushpa had stated that on the intervening night of 14 and 15 May, 2000, she was sleeping in her house. At about 2.30 night, three boys entered the house from the back door. Two boys had muffled their faces. One of the boys, who had muffled his face was having a knife in his hand. He put his knife on Smt. Pushpa and other boy gave a saria blow on her head and asked to give all which she was having. When she told that she was not having any money, she was told that money which was withdrawn from bank should be given to them. The offenders at the point of arms, snatched the ornaments which were worn by Smt. Pushpa, and took away sums of Rs.12,000/ kept in box, Rs.40,000/ withdrawn from bank and jewellery which was kept on duchhatti. She further stated that she was tied with a dhoti on the cot and she became unconscious after some time. When she regained consciousness, she raised noise and her neighbour Sheela along with some others came and liberated her.
5. On the statement given by Smt.Pushpa, IO made the endorsement for registration of a case under Section 460 IPC, after he came to the spot alongwith Smt. Pushpa. After registration of the case, investigation was handed over to Inspector Kishan Lal who came at the spot. Inspector Kishan Lal carried out further investigation. He sought the help of crime team, photographer and finger print bereau officials. He also took finger prints/ chance prints and took the help of dog squad. He got the postmortem on the dead body of deceased Lokesh @ Lovely conducted. He also collected the evidence in the shape of earth control of blood smeared earth. He also collected the withdrawal slip of Corporation 3 Bank. Investigation of the case under Section 460 IPC did not yield any positive result.
6. During course of investigation, it was revealed that one tenant of the accused persons Prasanjeet Tyagi had vacated the house some days ago. Accordingly, they were searched and joined in the investigation.
7. As per the case of the prosecution, Ashok Kumar Tyagi and his wife Smt. Gayatri Devi told that deceased was in love with one Hemant Sahni and the family members of the deceased were against this. In view of this, direction of investigation was changed and statement of the above mentioned persons were recorded. Search for Hemant Sahni was made and he was located. On 31.5.2000, at the instance of Hemant Sahni @ Nittoo, 80 pages of diary were allegedly recovered. Hemant Sahni @ Nittoo had allegedly disclosed that Lokesh @ Lovely was in love with him and she had written those letters to him. Hemant Sahni had allegedly taken out those letters from beneath the mattress of bed. The letters were taken into possession.
8. On 3.6.2000, door of the house of Prasanjeet Tyagi was taken into possession for the reason that Prasanjeet Tyagi had got repaired the door from some one in order to screen the evidence. On the same date, from outside the house of Prasanjeet Tyagi, a badly damaged briefcase was found which was having a khakhi colour cloth wrapped on it. It was checked and it was found to contain four pages of diary and five samples of small clothes. The pages of diary were allegedly stated to have been written by Lokesh @ Lovely as per the 4 version of Hemant Sahni @ Neetu (finger print bureau report with respect to the alleged writing was obtained). In the meantime, Inspector Krishan Lal was changed and investigation was assigned to Inspector Hem Chand . Inspector Hem Chand summoned the FSL officials and got inspected the floor of the house and obtained a report in this regard.
9. In pursuance of the disclosures during investigation, Sections 342/392/397/302/34 IPC were added on 17.5.2000 and thereafter Sections 118/177/182/203/302/120B/34 IPC were added.
10. Investigation was transferred to SI Anand Parkash. He collected the attendance sheet of the deceased from Lajpat Rai Post Graduate College, Sahibabad, which Lokesh @ Lovely had allegedly signed at Serial No.20.
11. In the investigation it was concluded that ASI Prasanjeet Tyagi and others hatched a conspiracy to kill the deceased as she was not acceding to their request of terminating her connections with Hemant Sahni. It was also concluded that Prasanjeet Tyagi had got his duty changed from day duty to nightd duty. It was further concluded that accused Prasanjeet Tyagi took benefit of the intervening period when no incident had taken place in the PS, came to his house, murdered deceased and went back on duty. IO collected DD No.26, DD No.29 and DD No.30 A in this regard. Photo copies of duty registers were also collected. The distance between PS and the house of Prasanjeet Tyagi was reported only 10 to 15 minutes walking distance. It was also concluded that Prasanjeet Tyagi and his family members got the case registered under Section 5 460 IPC in order to mislead the investigation and it was properly thought of plan.
12. Postmortem report was obtained in which the death was reported as a result of shock consequent to hemorrhage from the injuries. Injuries No.1,4,6 and 7 were opined to be sufficient to cause death.
13. Statement of Hemant Kumar @ Nittoo was got recorded under Section 164 Cr.P.C. Scaled site plan was got prepared and other necessary investigation was carried out.
14. Case had proceeded against accused Prasanjeet Tyagi, Surender Kumar and Smt. Pushpa Devi and they were acquitted vide judgment dated 30.7.2005, by Shri J.M.Malik, the then Ld. ASJ, KKD Courts, Delhi (later on a Judge of Hon'ble High Court). For advertence of detailed facts, reference can be had to the facts detailed by Shri J.M.Malik, the then Ld.ASJ, KKD Courts, Delhi (later on a Judge of the Hon'ble High Court).
15. As accused Naresh stood declared as a proclaimed offender, his case was kept pending. He surrendered in the court on 20.4.2006. He was arrested in the case and interrogated. No recovery took place during his police remand. Inspector Jogi Ram carried out the necessary investigation and placing reliance upon the diary pages allegedly written by the deceased, accused was challaned.
16. In the case which had proceeded against accused Pushpa, Prasanjeet Tyagi and Surender Kumar, charges were framed on 21.8.2001. Against accused Pushpa, charges under Section 120/302 read with Section 120B/182/203 IPC were framed. Against accused Prasanjeet Tyagi and 6 Surender Kumar, charges under Section 120/302 IPC read with Section 120B IPC were framed.
17. Prosecution had examined PW1 Hemant Sahni, PW2 Pankaj Malhotra, PW3 Hari Chand, PW4 Ashok Kumar Tyagi, PW5 Smt. Gayatri, PW6 Praveen Kumar, PW7 Shri Parasram Singh, PW8 Shiv Raj Tyagi, PW9 Sub Inspector N.K.Sharma, PW10 Head Constable Akil Ahmed, PW11 Swarup Vedant, Senior Scientific Officer, PW12 Constable Manoj Kumar, PW13 Sub Inpsector Mukesh Kumar , PW14 Manish Kumar, PW15 Dr. Chanda Jain, PW16 Dr. N.K.Aggarwal, PW17 Constable Ashok, PW18 Head Constable Chander Mohan, PW19 Constable Rajesh, PW20 Head Constable Paip Singh, PW21 Constable Hirdesh Kumar, PW22 Constable Vinay Kumar, PW23 Head Constable Subash Chand, PW24 Head Constable Jasbir Singh, PW25 Constable Mahavir Singh, PW26 Constable Jitender, PW27 Constable Sanjay Kumar, PW28 Shri S.K.Sharma, Ld. M.M., PW29 Head Constable Rajender Singh, PW30 Gyanender, Finger Print Expert, PW31 Constable Anil Kumar, PW32 Constable Bharatvir, PW33 Constable Raj Pal, PW34 Sub Inspector Shiv Shankar, PW35 Lady Constable Amita, PW36 Sub Inspector Kanchan Lal, PW37 Constable Surender, PW38 Constable Rambir, PW39 SI Sanjay Kumar, PW40 Sub Inspector Anand Parkash, PW41 Sub Inspector Rohtas Singh, PW42 Inspector Krishan Lal and PW43 Inspecotor Hem Chand.
18. Statements of accused persons were recorded in the previous case and accused persons denied the case of the prosecution. They led evidence in their 7 defence and examined DW1 Sub Inspector Balbir Singh, DW2 Constable S.K.Kanojia, DW3 Sub Inspector Ram Thakur, DW4 Constable Ram Pal and DW5 Constable Bhagwan Singh. Detailed reference is not being made about testimonies of PWs and Dws for the reason that the same are given in detail in the judgment of Sh.J.M.Malik, the then Ld.ASJ, KKD Courts, Delhi (later on a Judge of Hon'ble High Court) dated 30.7.2005 and the same be read as part of this judgement, for the sake of brevity.
19. In the present case, charge against the accused was framed by my Ld.Predecessor on 6.10.2006, under Section 120B IPC and Section 302 read with Section 120B IPC. Accused pleaded not guilty to the same and claimed trial.
20. Prosecution in support of its case, has examined PW1 Shri Pep Singh, PW2 Jogi Ram Punia, PW3 Pankaj, PW4 Hari Chand, PW5 Shiv Raj Tyagi, PW6 Inspector Hem Chand, PW7 Head Constable Anil Kumar, PW8 Ashok Thakur, PW9 Praveen Thakur, PW10 Manish, PW11 Hemant, PW12 Dr. R.K.B.Chaudhary, PW13 Deepa Verma, Senior Scientific Officer, PW14 Shri S.K.Sharma, PW15 Constable Manoj Kumar , PW16 Constable Hirdesh Kumar, PW17 Inspector Krishan Lal Sharma, PW18 SI Mukesh Kumar, PW19 Constable Rajesh Kumar, PW20 Dr. N.K.Aggarwal, PW21 Constable Mahabir Singh, PW22 Sub Inspector Kanchan Lal, PW23 Sub Inspector Jagbir Singh and PW24 Sub Inspector Shiv Shankar Prasad.
21. PW1 Head Constable Pep Singh, has proved the copy of FIR recorded 8 by him as Ex.PW1/A. PW2 Inspector Jogi Ram Punia has testified that he had conducted the investigation of the case after the arrest of the accused and had filed the challan by way of supplementary charge sheet.
22. PW3 Pankaj, PW4 Hari Chand, PW5 Shiv Raj Tyagi, PW8 Ashok Thakur, PW9 Praveen Thakur and PW11 Hemant have not supported the case of the prosecution and were declared hostile.
23. PW7 HC Anil Kumar has testified about replacement of door at the house of accused persons.
24. PW9 Shri Praveen Thakur and PW10 Manish have testified about liberating of Smt. Pushpa by them in association with Sonari Aunti, after they heard the noise. They have testified that they found Smt Pushpa tied on the cot with a saree. They have also testified about lying dead of deceased.
25. PW12 Dr. R.K.B.Chaudhary has proved the MLC prepared by Dr. Chanda Jain as Ex.PW12/A (this MLC was already proved as Ex.PW5/A). PW 13 Deepa Verma is the Senior Scientific Officer. She has testified that she compared A1 to A7 (alleged admitted hand writing of the deceased) with Q1 to Q75. She has proved her report as Ex.PW13/A. PW14 Shri S.K.Sharma, Ld. M.M., has proved the recording of statement of PW Hemant having been recorded under Section 164 Cr.P.C. He has proved it as Ex.PW14/A.
26. PW15 Constable Manoj Kumar has also not supported the case of the prosecution concerning request for change of duty by accused Prasanjeet Tyagi (since acquitted) on 9.5.2000 and was declared hostile. 9
27. PW16 Constable Hirdesh Kumar has testified about his participation in the investigation. This witness has testified about recording of statements of Gayatri Devi and Ashok Kumar and thereafter proceeding for search of Hemant @ Nittoo. This witness has also testified that Pankaj and Hemant met them and they were joined in the investigation.
28. PW17 Inspector Krishan Lal Sharma has testified about the manner in which he carried out the investigation in pursuance of DD No.25 A on 15.5.2000. This witness has proved Ex. PW17/A (sketch of the dagger) and seizure memo of the dagger as Ex.PW17/B. He has also proved lifting of blood samples vide memos Ex.PW17/C to Ex.PW17/E. He has also proved the seizure memo with respect to bolt and handle as Ex.PW17/F. This witness has proved the inquest papers as Ex.PW17/G, form 25.35 as Ex.PW17/H, statement of Vijay Pal Tyagi and Surender Kumar regarding identification of dead body as Ex.PW17/J and Ex.PW17/K, his request for postmortem as Ex.PW17/L and site plan Ex.PW17/M. This witness has also testified about seizure of writings and cloth samples vide Ex.PW17/N. He has also proved the seizure with respect to door as Ex.PW17/O.
29. PW18 Sub Inspector Mukesh Kumar has proved the scaled site plan Ex.PW18/A. PW19 Constable Raj Kumar has proved the photographs of the door and bolts as Ex.PW19/A1 to Ex.PW19/A13 and negatives Ex.PW19/B1 to Ex.PW19/B13.
30. PW20 Dr. N.K.Aggarwal has proved the Postmortem report of the 10 deceased as Ex.PW20/A.
31. PW21 Constable Mahavir Singh has proved the taking of four parcels of FSL Malviya Nagar vide RC No.26 in intact condition. PW22 Sub Inspector Kanchan Lal has testified about his investigation. He has testified that he got the site plan prepared. He has also testified that he got the questioned documents alongwith admitted writings deposited in the FSL.
32. PW23 Sub Inspector Jagbir Singh has testified about surrender of accused in the court. He has proved arrest memo and personal search vide memos Ex.PW23/A and Ex.PW23/B.
33. PW24 Sub Inspector Shiv Shanker Prasad has testified about the manner in which he has conducted the investigation of the case. He has proved the copy of DD No.24 A as Ex.PW24/A. He has proved the statement of Pushpa as Ex.PW24/B having been recorded by him. He has also proved the endorsement Ex.PW24/C over Ex.PW24/B.
34. I deem it pertinent to mention that vide orders dated 1.5.2008, my Ld. Predecessor had closed the prosecution evidence on the request of Ld. Public Prosecutor for the reason that Pws Ashok and Gayatri were not traceable.
35. Statement of accused was recorded under Section 313 Cr.P.C. without oath, in order to given an opportunity to the accused to explain the circumstances appearing in evidence against him. In his statement under Section 313 Cr.P.C., he denied the case of the prosecution and has submitted that he is innocent and has been falsely implicated in this case. That he had 11 joined the investigation in this case as and when called. He has given the dates of his joining the investigation on 8.6.2000, 27.6.2000 and 13.6.2000. He has submitted that the case is false and he has never resided at the given address. That his mother had expired in August, 1989 and since then he had been living with his grand father at village Puthi, District Meerut, U.P.
36. Arguments were heard at the bar. Ld. Counsel Shri K.S.Singh and Shri N.K.Tyagi have been heard at length. Written arguments were also filed. Ld. Counsels have submitted that case put forth by the prosecution is patently false. That in order to solve a blind murder case, accused persons were falsely implicated in this case by making them easy scapegoats. That story of written pages of diary being recovered from the vacant plot does not inspire confidence. That the very fact that the hand writing was that of deceased has not been proved and it goes to the root of the case. It has been argued that no witness has testified about the allegedly admitted writings being that of deceased. That reliance on the attendance of College and University is of no help for the reason that the same have not been proved. That public witnesses have not supported the case of the prosecution and present case is the case of no evidence. Reliance on the testimonies of PW3, PW4, PW5, PW8 and PW11 has been placed and it has been argued that in view of the same accused is entitled to acquittal. In legal arguments, the question of scribing of the contents of alleged diary having not been proved has been raised and by placing reliance on Section 61, 62 and 64 of the Indian Evidence Act, it has been argued that the alleged 12 writings cannot be used by the prosecution. Reliance has been placed on AIR 1983 Bombay Page 5 to 10, AIR 1967 SC 1326, AIR 1976 Punjab and Haryana 24, 1977 (2) SCR 1007, AIR 1982 SC 2085, AIR 1986 SC 3, AIR 1990 SC 79 and AIR 2001 SC 2957.
37. Ld. Public Prosecutor on the other hand, refuted the submissions made by Ld. Defence Counsel and has argued that prosecution has established its case by way of circumstantial evidence.
38. I have carefully perused the records of the case and given my anxious consideration to the respective submissions.
39. I am of the considered view that case of the prosecution has to result into acquittal for so many reasons. The first and foremost reason is that coaccused Prasanjeet Tyagi, Surender Kumar and Pushpa Devi have been acquitted by Shri J.M.Malik, the then Ld.ASJ, KKD Courts, Delhi (Later on a Judge of Hon'ble High Court) vide his judgment dated 30.7.2005. Ld. Public Prosecutor has conceded before me that no appeal against this judgment was filed by the prosecution. This fact in itself is sufficient to acquit the present accused as the findings given by Shri J.M.Malik, the then Ld. ASJ, have attained finality in view of the peculiar situation of the case.
40. The charge under Section 120B of IPC against accused Naresh @ Babloo cannot be sustained for the reason that other accused have been acquitted. It is trite law that in case the coaccused are acquitted, charge under Section 120B of IPC cannot stand against one accused. For this reason, I have 13 no hesitation to acquit the accused under Section 120B IPC.
41. With respect to the offence under Section 302 IPC, I deem it pertinent to mention that case of the prosecution was the same against the present accused as well as against the accused persons who have been acquitted. To say it at the least, it was comparatively on higher pedestal as compared to the present accused. I am saying so for the reason that in the case against Prasanjet Tyagi, Surender Kumar and Pushpa Devi, thrust of the case of the prosecution was more towards accused Prasanjeet Tyagi. Since they stand acquitted, the case of the present accused being at the lower pedestal, this accused is also to be acquitted.
42. Shri J.M.Malik, the then Ld.ASJ, KKD Courts, Delhi, (later on a Judge of Hon'ble High Court) had given a finding in para 37 of his judgment to the effect that the handwriting of the deceased at the maximum provided motive of the murder and motive in itself cannot be sufficient to convict the accused. Since there is no material difference between the case of the accused persons already acquitted and the present accused, it has to be observed that prosecution at the maximum can be said to have proved the motive of the murder simplicitor and nothing more. In view of the same, accused is entitled to benefit of doubt and has to be acquitted.
43. In para 38 of the judgment, Shri J.M.Malik, Ld. ASJ, has observed about the writings and the statement under Section 164 Cr.P.C. Nothing has been improved by the prosecution qua the same and accordingly, I am left with no 14 alternative but to award the benefit of doubt to the accused by placing reliance on observations of Sh. J.M. Malik the then Ld. ASJ.
44. It was observed by Shri J.M.Malik, the then Ld. ASJ, in para 39 of his judgment that PW Hemant Sahni had not named the person who had threatened to kill the deceased and him. This fact had constrained Shri J.M.Malik, the then Ld.ASJ, to acquit the accused persons and this fact constrains me also to acquit the accused as no incriminating material qua motive against this accused has been proved.
45. Prosecution has failed to prove the motive in the present case on the part of accused Naresh as PW11 in his testimony has testified that he cannot say as to how portion A to A was recorded. Portion A to A is to the following effect.
" Tum Sudhar Jao Verna Dono Ko Maar Dunga"
This portion does not go to show that it was the accused Naresh, who had extended threat and on the other hand it goes to show that threat was extended by Prashan Jeet Tyagi since acquitted. The authorship of other letters has not been proved as will be discussed later and thus there is no hitch in observing that in the present case, prosecution has failed to prove anything on record by virtue of which, it can be said the motive has been proved by the prosecution on the part of accused Naresh @ Bablu.
46. The version of the prosecution concerning removal of the door was not believed by Shri J.M.Malik, the then Ld. ASJ, (later on Judge of Hon'ble High Court) and it was categorically recorded in para 43 that there was no evidence 15 that the door in question was removed one day prior to the occurrence by the accused. I have no reasons with me to differ from the same and this fact makes the case of the prosecution shaky.
47. The enquiry ordered by Shri J.M.Malik, the then Ld.ASJ, in his judgment dated 30.7.2005, has not yielded any positive result and as per the copy of the order placed on record passed by Shri Jaspal Singh, DCP, North East, bearing No.647794/HAP/NE (P2) dated 24.7.2008, charge against SI Prasanjeet Tyagi has not been proved and this is an additional reason to award the benefit of doubt to this accused as the very foundation of murder aspect becomes shaky.
48. I am in agreement with the argument of Shri K.S.Singh to the effect that the alleged writings on which complete reliance was placed by the prosecution to have been scribed by the deceased has not been proved. This is a material defect in the case of the prosecution which goes to the root of the case of the prosecution. Thus, I have no hesitation, in my mind, to observe that independent of the reasons given by Shri J.M.Malik, the then Ld.ASJ, non proving of authorship has to go against the prosecution.
49. I have perused the testimonies of the prosecution witnesses recorded in the earlier case. PW1 Hemand Sahni in his statement on 5.10.2001, has nowhere testified that the writings were scribed by the deceased. It was not got elicited from him either in his examination in chief or in cross examination that the alleged writings were that of deceased Lokesh @ Lovely. I deem it pertinent to mention that in the report under Section 173 Cr.P.C., it was categorical case 16 of the prosecution that on 31.5.2000, it was Hemant Sahni who had got recovered 80 pages of diary. It was also the categorical case that these pages were stated to have been written by the deceased, as per version of Hemant Sahni. It is also categorical case of the prosecution in its report under Section 173 Cr.P.C. that on 3.6.2000, the prosecution had recovered five cloth samples and four written pages of diary. According to the case of the prosecution, it was Hemant @ Nittoo who had stated that all these pages were written by the deceased.
In view of this being the categorical case of the prosecution, it was the bounden duty of the prosecution to prove that PW Hemant Sahni testifies on the lines as put forth in the report under Section 173 Cr.P.C. Unfortunate for the case of the prosecution it has not so happened neither in the previous case nor in the present case and this sole reason in itself constrains me to award the benefit of doubt to the accused. No other PW could have proved the aspect that diary pages were written by the deceased. In the absence of testification by PW1 Hemant Sahni in previous case as well as in the present case, it can be said that it has not been proved by the prosecution on record that hand writings which are bedrock of the case of the prosecution have been proved to be that of the deceased.
50. In his testimony in the present case, PW11 Shri Hemant has given a very shaky version about the diary pages and has testified that he does not know as to who had taken the letters from his possession which were kept by him in a 17 drawer at factory premises. He has stated that he cannot say as to whether writings as marked PW11/1 to PW11/44 were that of Lokesh @ Lovely (deceased). He has testified that he was not in a position to identify the handwriting of the scribe of the letters mark PW11/1 to PW11/44. This witness has denied the suggestion during cross examination that mark PW11/1 to PW11/44 were the letters which were thrown by Lokesh @ Lovely (deceased) and collected by him while standing in the street. He has also denied the suggestion that in one of the letters Lokesh @ Lovely (deceased) had written that her father used to utter that as and when he would perceive that family respect has gone down on account of her affair, he would kill her. He has denied that he became apprehensive after the death of deceased and perceived that there may be an attempt on his life also. He denied the suggestion that on account of that fear he had given mark PW11/1 to PW11/44 to his friend.
A bare perusal of the testimony of PW11 Hemant goes to reveal that it does not, at all, support the version put forth by the prosecution in the report under Section 173 Cr.P.C. It also reveals that from the testimony of PW11 Hemant it cannot be said by any stretch of imagination that prosecution established on record that alleged writings were writings of the deceased.
51. In the case decided on 30.05.2007, PW2 Sh. Pankaj Malhotra has denied the suggestion that on 31.05.2000, police had come to him along with Hemant and he had given love letters of Lovely from beneath the pillow of his bed to the police. This version goes against the case of the prosecution, wherein it was put 18 forth that the love letters were given by this witness to the police. He has denied that he had signed mark A after going through its contents. Thus this witness also does not prove the authorship.
52. It was not got elicited from PW1 in his crossexamination as to what was done by him of the love letters of the deceased and to whom these were given. These love letters should have been shown to these witnesses. It has not been so done and this has to go against the prosecution. Prosecution should have established that these love letters were given by Hemant Sahni to Pankaj. This link is missing which is very important piece of substantial evidence.
53. No doubt PW21 HC Hirdesh Kumar tried to improve upon the case of the prosecution by testifying in examinationinchief to the effect that PW Nitu @ Hemant had identified and disclosed that the said letters were written by deceased Lovely. But this was of no help to the prosecution as in his cross examination this witness had to admit that he had not told the police in his statement under section 161 Cr.PC that Nitu @ Hemant had stated that the letters were in the hand writing of Lovely. In view of this, assertion of Sh. K.S. Singh to the effect that prosecution has failed to establish the authorship of the letters has to be allowed.
54. PW24 HC Jasbir Singh is another witness in this regard. This witness nowhere testifies about the authorship of the letters. As per testimony of PW24, the letters were taken into possession on 31.05.2000 in the presence of SHO Kishan Lal, SI Rohan and HC Hirdesh. I have already referred to the testimony 19 of HC Hirdesh in this regard. PW24 has nowhere testified about the authorship of the letters and hence testimony of PW24 does not take the case of the prosecution anywhere concerning the authorship of the letters.
55. Other witnesses in this regard are SI Rohtash and SHO Kishan Lal. SI Rohtash has been examined as PW41 on 03.02.2003 and he testified that PW Hemant had told about the letters having been written by Bably. This witness also like PW21 Ct. Hirdesh Kumar had to admit in his crossexamination that he had not mentioned in his statement regarding writing of love letters by Lokesh @ Lovely. In view of this admission in crossexamination, it can be said that this witness has also not proved the authorship of the letters allegedly taken into possession on 31.05.2000.
56. Last witness in this regard is Kishan Lal. This witness in his examination inchief on 15.05.2000 has testified that it was Nitu @ Hemant, who had informed them about the love letters which he had kept at the house of Pankaj Malhotra. During crossexamination this witness admitted that he had not recorded in the statement of any witness to the effect that the diary pages were written by the deceased. This is a serious defect in the case of the prosecution and it has to be observed that prosecution has failed to establish the authorship of the diary pages.
57. PW16 HC Hirdesh Kumar on 30.10.2007 (in the case in hand) has testified about the information having been given by Hemant to the effect that the letters were scribed by the deceased. There are reasons with me not to act 20 upon on this version. The first reason is that Hemant in his testimony has not supported the assertion of this witness and has categorically denied that he had told the police about the writing of the letters by deceased Lokesh @ Lovely in his testimony given in the earlier case as well as in the present case. PW Hemant has not asserted that letters were written by Lokesh @ Lovely (deceased) and hence prosecution cannot get anything out of the testimony of PW16. The other reason is that in his previous statement PW Hemant had testified that he had not stated about the authorship of the letters and the present version can be said to be an embellishment. Another reason is that Pws have given contradictory versions concerning the reaching of them to Hemant and Pankaj. Two versions have emerged over the record that it was Hemant, who had met the police party first and the version that it was Pankaj, who had met the police party first. So this makes me to discard PW16.
58. PW17 Inspector Kishan Lal (in the case in hand) has testified that it was Hemant @ Nitu, who had disclosed to him about the authorship of the love letters. This version can be of no help to the prosecution as from the same authorship cannot be said to have been established. For establishing the authorship of the letters, it was the bounden duty of the prosecution to have got it elicited from the mouth of Hemant Sahni or some other person, who was well acquainted with the hand writing of the deceased. It has not been so done. Prosecution came to the court with the stand that PW Hemant has stated about authorship of A1 to A7 and Q1 to Q75. PW Hemant did not support the 21 prosecution in this regard. There is no other witness in the present case, who can testify and has testified about the authorship of the love letters.
59. In view of the above going discussion I have no hitch in observing that prosecution has failed to establish about the authorship of the love letters of deceased Lovely.
60. Other writings of the deceased, which have been placed reliance upon by the prosecution are the 4 pages of a diary allegedly recovered on 03.06.2000. Let the case of the prosecution be tested on this aspect also. In the previous case as already discussed, PW Hemant has not testified about the recovery of these 4 pages of diary in his presence, which was the categorical case of the prosecution in its report under section 173 Cr.PC. PW43 in his cross examination dt. 17.04.2000 categorically testified that pages of diary taken on 03.06.2000 were not taken into possession in the presence of Hemant Sahni @ Nitu. This is such a fact, which strikes at the root of the case of the prosecution. When the 4 pages of diary were not recovered in the presence of Hemant @ Nitu, then it remains a mystery as to how PW42 came to the conclusion that these diary pages were written by the deceased. I deem it expedient to reproduce the admission of PW42 on 17.04.2003 in this regard herein below: " it is correct that pages of diary taken on 03.06.2000 were not taken into possession in presence of Hemant Sahni @ Nitu".
61. So, it can be said without any hitch that prosecution failed to establish the authorship of the love letters as well as the diary pages, which were allegedly recovered on 31.5.2000 and 3.6.2000 respectively. This is a vital link which 22 goes missing in the chain of the circumstantial evidence and I am constrained to award the benefit of doubt to the accused.
62. Next piece of writing placed reliance upon by the prosecution are the records concerning deceased while she was studying. I have no hestitation in this regard to observe that prosecution has failed to establish that the writings were that of the deceased. No witness from the college or the university has been examined either in the previous case or in the present case. Some officials from the college or the university in the presence of whom deceased had written, should have been examined so that prosecution could have relied upon the hand writings of the deceased. Moreover it was very fairly conceded by Ld. PP that hand writings of the deceased from her college or university have not been proved. It having not been done so, I am constrained to accept the arguments of Ld. Defence counsel Sh. K.S. Singh to the effect that authorship of the writings of the deceased has not been established, which was a sine qua non for establishing the factum of writing. For this reason, it can be said that prosecution has failed to establish even the motive aspect.
63. In view of the fact that prosecution has failed to establish authorship of A1 to A7 and Q1 to Q75, testimony of PW13 Deepa Verma is of no help. Prosecution cannot get any help from Ex.PW13/A, wherein she has reported that A1 to A7 and Q1 to Q75 were written by the same person. Her admission in crossexamination which is being reproduced for the sake of convenience strikes at the root of the case of the prosecution.
23
...... "Since admitting writings, which are Ex. A1 to A7, were supplied to me by the I.O as writings of Lokesh, hence I concluded in my report that these writings are of Lokesh"............. (first page of crossexamination dt. 15.4.2008) In view of the fact that authorship of the writings has not been established and PW13 has relied upon a wrong assumption, prosecution cannot get any benefit out of the same. Even otherwise it has already been observed that the writings at the maximum prove motive and nothing more and thus, prosecution cannot get any benefit out of the testimony of PW13.
64. Not only this, the material witnesses in this case have not supported the case of the prosecution and this is an independent reason to award benefit of doubt to the accused as it is well settled that when two views are plausible, then the benefit of the same has to go to the accused. It is also well settled that fouler the crime, stricter the proof. Let the testimonies of the material witnesses be adverted to as far as present case is concerned.
65. PW3 Sh. Pankaj has testified that he was not knowing any girl, namely, Lovely. He has testified that he had not given any document to police at any point of time, written by Lovely. He has also testified that he had not given any statement before the police at any point of time. In view of this, this witness was declared hostile and during crossexamination also prosecution could not elicit anything favourable to its case. He denied the suggestion that on 31.5.2000, police officials of PS Welcome and Hemant had come to his house. He denies 24 that on 31.5.2000, he had handed over 80 pages of diary, which were love letters, written by the girl friend of Hemant, namely, Lovely, to police. He denied that Hemant had kept these love letters with him.
66. PW4 Hari Chand, the father of Hemant has also not supported the case of the prosecution and was declared hostile. During crossexamination this witness has denied the case of the prosecution to the effect that he had visited the house of Prasanjeet Jeet Tyagi in 2000 concerning marriage proposal of Hemant with Lovely. He has denied the entire statement attributed by the prosecution under section 161 Cr.PC to this witness.
67. Similarly PW5 Shiv Raj Tyagi has not supported the case of the prosecution. He has denied his acquaintance with Prasanjeet Tyagi. On the lines of other witnesses this witness was declared hostile and during cross examination has not supported the case of the prosecution. He has denied his version attributed to him in the statement under section 161 Cr.PC.
68. PW11 Sh. Hemant has also not supported the case of the prosecution and as he had done in the previous case, not supported the case of the prosecution in the present case also. This time he has become comparatively wiser and has taken the plea of forgetfulness. I have no hesitation in my mind to observe that such a shaky witness cannot be believed. It is very unfortunate that deceased was in love with such a person, who has forgotten her after her death.
69. Other witnesses are not worth requiring advertance as from the above discussion itself, I have no hesitation to observe that prosecution has failed to 25 establish its case beyond reasonable doubt. Death of deceased is not disputed and therefore, there is no need to advert to the testimony of doctors as well as to the postmortem report.
70. An over all perusal of the case put forth by the prosecution leads to two probabilities. One probability is that deceased was murdered in the manner put forth by the prosecution on account of her insistence to marry with Hemant and none else. The other probability is that she was murdered by the intruders as put forth by Pushpa, when she gave her statement and a case under section 460 IPC was registered.
71. As far as case put forth by the prosecution concerning involvement of the accused persons in the commission of offence is concerned, I have already discussed that it has failed to prove its case in this regard and at the maximum a suspicion arises against the accused. It is well settled that suspicion cannot take place of legal proof howsoever strong it may be. With respect to other probability, I will comment soon. Another reason to observe against the prosecution is that it has failed to establish all the links required to complete the chain of circumstantial evidence. It is well settled about circumstantial evidence that its chain has to be complete so as to leave no manner of doubt that it was the accused and none else, who committed the offence. It is well settled that if any of the link is found missing then benefit of the same has to go to the accused. I have already observed that links in the chain of circumstantial evidence are missing. If any judgment is needed with respect to circumstantial 26 evidence, I find as a handy citation in this regard, which has been followed time and again.
72. It was the case of the prosecution in the beginning that masked intruders had entered the house and had robbed Pushpa. Possibility of the case being true in this regard cannot be ruled out, if it is viewed from the standard of preponderance of probabilities. It is well settled that duty of the prosecution is to establish its case beyond reasonable doubt and onus of the prosecution in this regard never shifts. As far as accused is concerned he has to raise a doubt in the case of the prosecution only from the standard of preponderance of probabilities standard and nothing more. In the present case, I have no hitch in observing that accused has been successful in doing so. It is the prosecution, which has examined PW9 Praveen Thakur and PW10 Sh. Manish. These witnesses have testified that on 15.5.2000 they had liberated Pushpa, when they had heard the cries of 'save save'. So, from the testimony of PW9 and PW10, prosecution cannot be permitted to deny that prosecution did not believe in the story put forth by Pushpa at one point of time. This is sufficient from the standard required on the part of accused. So, in view of this discussion I have no hesitation to award benefit of doubt to the accused.
73. Another reason to award the benefit of doubt to the accused is that prosecution has not established its case regarding removal of door. PW8 Sh. Ashok Thakur has denied that he was at any point joined in the investigation of the case. He denied that he had affixed any door on C6/25, 33 futa road, Kabir 27 Nagar. He denied that any door was brought at the spot from PS Welcome. He also denied that spot was photographed in his presence. During cross examination he has denied the entire version attributed to him in his statement mark A. So, testimony of this witness also strikes at the root of the case of the prosecution and is one of the additional factors which constrains me to award the benefit of doubt to the accused.
74. Reliance of ld. PP on the statement recorded under section 164 Cr.PC is of no help as from the statement no proper conclusion can be reached. PW Hemant has not testified anything about the present accused in the same and on the other hand has testified about threat given by the Prashant Jeet Tyagi since acquitted. This witness in his statement under section 164 Cr.PC has not attributed anything towards the present accused, namely, Naresh and this is more than sufficient to disallow the arguments of ld. PP in this regard.
75.Arguments advanced by the ld. PP to the effect that absconding of the accused should be taken as a circumstance going against the accused and on this basis he should be convicted. I am not in agreement with ld. PP in this regard. The reason for saying so is that prosecution has failed to bring on record sufficient material by virtue of which accused can be connected with the commission of the offence. In the absence of the same the act of the accused of absconding cannot be pressed into service. This act could have been pressed into service had there been sufficient material against the accused to connect him with the commission of the offence. In that 28 eventuality this fact would have been one more fact to land assurance to the conclusion. This not being, so the argument has to be rejected.
76. In view of the above going discussion, I am constrained to award benefit of doubt to the accused and accordingly, he is acquitted of the charges framed against him. Accused be released forthwith if not required in any other case. File be consigned to record room.
Announced in open court (DILBAGH SINGH)
Dated:18.8.2008 ADDL. DISTT. & SESSIONS JUDGE:
KARKARDOOMA COURTS:DELHI.