Delhi District Court
State vs 1. Ruben on 14 October, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 142/10
State Vs 1. Ruben
S/o John Crush Joseph
R/o Village Chakhani Mission, PS Bhanga,
District West Champaran (Bihar).
2. Edward
S/o Shri Ignas
R/o Village Rampur Mission,
P.O. Village Rampur, PS Bhanga,
District West Champaran (Bihar) (in judicial custody)
FIR No : 163/10
P.S. : New Friends Colony
U/s. : 302/201/34 IPC
DATE OF INSTITUTION : 02.11.2010
JUDGMENT RESERVED ON : 03.10.2011
DATE OF DECISION : 14.10.2011
JUDGMENT:
1. Prosecution facts in brief are that SI Hoti Lal on receiving DD no. 8 A at around 8:25 am on 10.07.2010 reached B block park NFC where the dead body of a girl wearing pink coloured suit and a boy wearing black coloured pant and white shirt was lying in grass in suspicion condition State vs. Ruben etc., SC no. 142/10 (pg 1) between park and a house, inside park a pair of gents shoes and ladies chappal were found. Photographs of the scene of occurrence were taken but on local inquiry the dead bodies of girl and boy could not be identified. Thereafter, dead bodies were sent to AIIMS mortuary and preserved. On reaching back to the spot SI Hoti Lal on the basis of MLC prepared rukka and sent tehrir alongwith Ct. Manoj Kumar for registration of FIR pursuant to which FIR u/s 302 IPC was registered. Further, investigation was handed over to Inspector Jagbir Singh who prepared the site plan and seized the articles from the spot.
2. During the course of investigation, on personal search of male deceased two sim cards were recovered, subscriber's details and information about subscriber was ascertained by calling on saved number. Pursuant to which accused Edward and Ruben were apprehended. Accused Edward in his disclosure statement stated that when at around 7 pm he went to take the articles from the servant room of Ruben, Rubentold that deceased Hari Om and his daughter Bimla were in the room and on opening the room Edward found both deceased Hari Lal and Bimla in objectionable condition and therefore in state of anger he slapped deceased Hari Lal and when deceased Hari Lal tried to hit him with vegetable cutting knife he controlled Hari Lal with the help of accused Ruben and thereafter pressed his neck with the help of chunni till he died and in the meanwhile, deceased Bimla started crying just to stop her from crying, he with the help of Ruben State vs. Ruben etc., SC no. 142/10 (pg 2) had also strangulated his daughter with one handkerchief and thereafter both of them had thrown the dead bodies towards park and burn the incriminating chunni in iron tray (tasla).
3. During investigation at the instance of both the accused burnt chunni, iron tray with burnt remnant of chunni, knife were recovered at the pointing out of accused. It is further transpired in investigation that accused after killing both deceased to make case of murder cum suicide broken the piece of door. And one lady chappal and a wooden door and its broken pieces were also recovered.
4. During interrogation family members of deceased Bimla disclosed that Bimla arranged a meeting with family members at D 434 NFC with deceased Hari Lal about one and half months back but Edward father of Bimla was against this marriage as deceased Bimla was a source of earning for him. On completion of investigation, chargesheet was filed against both accused u/s 302 IPC.
5. On committal charges were framed against both accused u/s 302/34 r/w 201/34 IPC for which they pleaded not guilty and claimed trial.
6. Prosecution for substantiating charge has examined 21 prosecution witnesses. Summary details of their depositions are as follows.
State vs. Ruben etc., SC no. 142/10 (pg 3) Deposition of police official and other witnesses:
7. PW2 SI Hoti Lal deposed that on receiving DD no. 8 A around 8 .25 he alongwith Ct. Jitender reached the spot and found the dead body of male and a lady between the park and kothi no. 434, NFC and a little grass was scattered over the body. In the meanwhile , SHO and crime team also reached there and photographs of the dead body was taken from various angles and in the park one pair of gents shoes and single ladies chappal was found lying and on conducting search one wallet was recovered from the back side pocket of male body and on searching two sim cards of mobile and Rs.50/were found. Thereafter he alongwith Ct. Jitender had taken both dead bodies to AIIMS hospital where doctor prepared MLC declaring both the bodies brought dead and thereafter dead bodies were preserved in mortuary. On reaching back the spot, prepared rukka, further investigation was handed over to Inspector Jagbir Singh. At his instance, IO prepared site plan and he handed over seized gents shoes, ladies chappal and sim cards to the IO. IO had checked the sims by using them in some mobile. Thereafter, he went alongwith IO in search of Edward and to G.K. I and after that to H.No.15 Panchsheel Park where accused Edward was found present and disclosed that he killed the deceased Hari Lal and Bimla with the help of accused Ruben, and thereafter, they came to B434, NFC where accused Ruben was arrested. Further, on pointing out of accused Edward and Ruben, they went to second State vs. Ruben etc., SC no. 142/10 (pg 4) floor of house no. B434, NFC where on the instance of accused got recovered one vegetable cutter knife, one iron parath containing piece of burnt chunni and a piece of chunni lying and piece of broken wooden gate and a piece of plywood was also recovered. He further deposed that on the pointing out of Ruben a single ladies chappal was recovered from the branch of safeda tree inside park and a voter I card of deceased Hari Lal was also found in the same room. Further pointing out memo of the place where both the dead bodies were lying under grass was prepared at instance of accused persons.
8. In cross examination he deposed that SHO reached the spot after 1015 minutes of his reaching and remained at spot when he took dead bodies to hospital. He further deposed he do not remember at what time he left the spot. He cannot say whether it is 10 or 11 am. He further could not tell at what time he reached hospital. And remained in hospital for one and half to two hours. He further deposed when he came back to spot, SHO was not present and one HC Manoj was on the spot. He cannot tell at what time HC Manoj reached the spot. And further deposed that crime team reached the spot after one hour of his reaching the spot. And the photographer was a private photographer called by SHO. And SI Jagbir Singh reached the spot after registration of FIR and he do not remember at what time he reached th spot.
9. He further deposed that he sent rukka after coming from hospital at the State vs. Ruben etc., SC no. 142/10 (pg 5) spot. He further stated that he took the search of dead body before taking it to the hospital but do not remember whether he had mentioned factum recovery of purse and sim cards in rukka and again said he must have mentioned the same in the rukka. Confronted with rukka Ex. PW2/B where it is not so recorded. He further deposed that he did not inquire anything from mother dairy nearby,. Vol. He inquired from nearby houses but he do not know the name of persons from whom he inquired. He further deposed that number of persons were gathered at the house but he did not note down names and addresses of those persons. He further deposed that Ruben was present in the house B434, when he came back from hospital and he was called for inquiry but he did not state anything at that time. He further deposed that dead body was lying at a distance of 100150 yards from the main gate of the house. He further deposed that no blood was oozing out from the dead bodies when he examined them but only some forth was oozing out from the dead body of male but did not try to collect that said forth. He further deposed that he did not try to lift some footprints and fingerprint and neither tried to put those shoes and chappal in foot of dead bodies to ascertain whether the same are of deceased or not. He further deposed that shoes and ladies chappal would be lying at a distance of 10 feet from the wall of the park. He further deposed that he has not seized the shoes and chappal and they were seized by the IO. He further deposed that no documents about the identity of the dead body was recovered from the dead body. On State vs. Ruben etc., SC no. 142/10 (pg 6) question how the address of Edward was revealed, he deposed that it must be in the knowledge of IO. He further deposed that it is correct that no public persons was witness to the proceedings at house no. B434. He further deposed that it is the job of the IO to lift the fingerprints from the knife and he only knew that the knife was seized and IO got done the photographs of the house from where recoveries were effected and the pieces of chunni were recovered from 2nd floor from inside the paraat but he did not know whether the photographs were done before seizing the same. He further deposed that he do not know from whose house accused Edward was arrested as he was present outside the house.
10. PW3 Kamla Devi deposed that she identified the dead body of her son Hari Lal. PW4 Ganesh deposed that he also identified the dead body of his son Hari Lal. PW7 Chamanveer deposed that he was constructing house B434 and had given the construction work to MP Gogia and accused Ruben was employed as chowkidar at the said plot. In cross examination he stated that he cannot say whether Ruben was on duty on 09 or 10.07.2010.
11. PW8 MP Gogia deposed that he had one chowkidar viz. Ruben at B434, New Friends Colony and on 09.07.2010 at around 5.30 p.m. accused Ruben was present at the site. In cross examination he stated State vs. Ruben etc., SC no. 142/10 (pg 7) that on 09.07.2010 he stayed at the site for around 1015 minutes and no register or record regarding the attendance of Ruben was maintained. He further deposed that about 2025 people work at that place and police persons had not allowed the work of construction to continue for three days and after the incident they had locked the premises. He further deposed that on 10.07.2010, at around 12 O'Clock he came to know through his labour that police has locked the premises and stopped the work and the said labour also informed that in the morning when they went for work at site police did not allowed them to work since the premises were locked and labour used to come for work at 8.309.00 a.m. in morning.
12. PW9 Anand Kumar deposed that he knew Edward from his village and also knows his entire family and Vimal daughter of Edward used to work in front of mandir in the house of Mrs. Sabbarwal who once told him that Edward used to take salary of Vimal. In cross examination he stated that he had no talks with Vimal regarding her salary and further police had never came to him for inquiry and never recorded his statement.
13. PW10 Rajesh deposed that he identified the dead body of his sister in law Vimal on 12.07.2010 at AIIMS hospital. He further deposed that in the month of may 2010 his wife Daizy went to house no. 434 to meet her family and she came back and told that her father was bit angry State vs. Ruben etc., SC no. 142/10 (pg 8) and marriage of Vimal could not be finalized. In cross examination he stated that he had not gone to NFC with his wife and his father in law was residing at GK at that time. He further deposed that his wife did not tell him why his father in law (accused Edward) was angry and He further deposed that his father in law never resided in NFC.
14. PW11 Daisy deposed that she identified the dead body of her sister Vimal at AIIMS at 12.07.2010 and in the month of May she alongwith her father Edward, brother Pramod and her sister went to house no. B434 and Hari Lal was also present there and Vimal wanted to marry Hari Lal but marriage could not be finalized but she do not know why the marriage was not finalized. In cross examination she deposed that she was living at Delhi at the time of incident and her father Edward was agreeable for marriage of Vimal with Hari Lal and at that time she was residing at Gurgaon.
15. PW12 SI Mahesh Kumar deposed that he prepared the scaled site plan of the spot on 06.10.2010 at the instance of SI Hoti Lal. PW13 HC Ram Kumar deposed that he recorded DD no. 8A at around 8.25 a.m. and further he was on duty from 12 midnight from 10.07.2010 to 9.00 a.m. of next morning 11.07.2010 and at around 12.10 a.m. HC Manoj Kumar had brought rukka and on the basis of which he recorded FIR.
State vs. Ruben etc., SC no. 142/10 (pg 9)
16. PW14 Mrs. Aruna Sabbarwal deposed that she know Vimal daughter of accused Edward as she was working as maid servant in their house. She further deposed that deceased Vimal was having a mobile phone and she used to talk to somebody on mobile phone but she do not know to whom she used to talk. She further deposed that the police came to their house with the photograph of Vimal and she identified her photograph, and police asked her to hand over the articles of Vimal and she handed over the same to police but do not know what articles were kept in that bag. On being declared hostile, in cross examination by Ld. Addl. P.P. she denied to have made statement to police. In cross examination she stated that photograph Ex. PW14/A1 to Ex. PW14/A3 were not taken in her presence and she never went to spot where dead body of Vimal was lying. She further deposed that police had not handed over her the receipt of the bag given by her.
17. PW15 Ct. Jitender Kumar deposed that he alongwith SI Hoti Lal went to spot on receiving DD no. 8A and found the dead body of one male and one female and one pair of gents shoes and one single lady chappal was also lying there in the park and photograph of site and dead bodies were also taken and he alongwith SI Hoti Lal taken the dead bodies to AIIMS. In cross examination he deposed that on reaching spot they remained at the spot for half an hour and searched State vs. Ruben etc., SC no. 142/10 (pg 10) the entire surroundings and SI Hoti Lal searched entire park including trees but nothing was found hanging on the trees and before going to hospital SI Hoti Lal picked up the articles found near the spot and kept with him but he do not remember whether the same were seized in pulanda or not. He and SI Hoti Lal reached the spot first and other police officials reached as soon as they reached the spot. He further deposed that he do not remember whether the crime team reached before they left the spot or not. She further deposed that they examined the spot alongwith park and at that time SHO Sunil Kumar and inspector Jagbir Singh were also present. He further deposed that number of persons including chowkidars collected there but none of them was able to identify the victims. He further deposed that he cannot tell at what time they reached AIIMS and it took around half an hour to reach hospital and SI Hoti Lal remained there for one and half hour and left him at mortuary.
18. PW16 Ct. Rajesh deposed that on 11.07.2010, HC Ram Kumar handed over two envelops and he took the same and handed over one envelop to ACMM Shri Naveen Arora and one envelop to Addl.CP, Old Civil Lines. In cross examination he stated that he left police station at 12.40 a.m. but there is no log book for taking and delivering the envelop.
19. PW17 HC Manoj Kumar deposed that on 10.07.2010 when he was State vs. Ruben etc., SC no. 142/10 (pg 11) on patrolling duty in the area, SI Hoti Lal handed over the rukka to him for registration of case and after registration of case he came back to spot alongwith inspector Jagbir Singh who prepared site plan at the instance of SI Hoti Lal. SI Hoti Lal handed over two sim cards, pair of gents shoes, ladies single chappal to inspector Jagbir Singh and thereafter they came back to police station and IO had taken out the call details of sim cards and reached at house no. S451, GK but accused Edward was not found there. Thereafter they went to Panchsheel Park and found accused Edward and was interrogated and arrested. Thereafter, accused Edward brought them to B434 NFC from where accused Ruben was arrested and at the pointing out of both the accused one iron tasla containing ashes and pieces of burnt chunni etc. recovered and further one chappal was recovered from inside the tree on pointing out of accused Ruben. He further deposed that thereafter they came to the house and on pointing out of both accused persons a kitchen knife was recovered alongwith broken pieces of gate.
20. In cross examination he deposed that he left for beat from police station at around 9.00 p.m on 10.07.2010 and prior to his reaching there SI Hoti Lal and Ct. Jitender were already present there and police has searched the entire surrounding area and park as well and he was handed over the rukka for getting the case registered. He further deposed that police team present at the spot searched the entire park. He further deposed that purse and the pair of shoes and one ladies State vs. Ruben etc., SC no. 142/10 (pg 12) chappals were in the hands of SI Hoti Lal and same were not sealed when handed over to IO. He further deposed that they went to S451 GK at around 1.001.15 a.m. in the night but cannot tell the name of person whom they met and further reached Panchsheel Enclave after 1520 minutes but cannot tell the name of the person they met and remained at there for about half an hour and thereafter they came straight B434 where no other person except Ruben was found present. Witness was shown tasla but it does not contain any piece of cloth, further he deposed that no photographs of tasla were taken before taking it into possession. He further deposed that IO did not make any effort to turn burnt material in bottle or tumbler. No wooden work was going on that house and crime team was also not called and no effort were done to lift the fingerprints from the articles or any place in the said house. He further deposed that IO had not prepared the list of articles lying on the bed. He further deposed that no public persons were present at Panchsheel Park house to witness the arrest of accused Edward. Further no public persons was called from adjacent house to make witness of arrest, disclosure and recovery. Further no body was made witness to the recovery proceedings from the park, though it was morning time.
21. PW18 HC Tridev deposed that on 12.07.2010 he alongwith inspector Jagbir Singh reached AIIMS mortuary and after postmortem of the deceased doctor handed over eight sealed parcels to him which he State vs. Ruben etc., SC no. 142/10 (pg 13) handed over to IO. In cross examination he deposed that he do not remember at what time they reached AIIMS but it was afternoon time but cannot tell whether it was 1 or 2 or 3.00 p.m. PW19 SI Ram Singh deposed that he deposited sealed parcel in FSL on 10.8.2010 and 11.08.2010.
22. PW20 HC Urbadutt deposed that he was working as MHC(M) and on 11.07.2010 Inspector Jagbir Singh deposited six exhibits with the seal of JS in malkhana and one purse without seal which contains sim card of Airtel and two exhibits containing viscera and seal sample of forensic medicine AIIMS. He further deposed that on 10.08.2010, eleven exhibits were sent to FSL through SI Ram Singh and he on return deposited acknowledgment slip and returned 4 sealed parcels and one sealed container. He further deposed that on 11.8.2010 SI Ram Singh was handed over two sealed parcels containing viscera and two sample seals of forensic medicine AIIMS and he deposited the acknowledgment on coming back. In cross examination, he stated that he checked the number on sim cards and sim cards were not in sealed condition. He further deposed that chappal and shoes were in transparent jar contents of which were visible from outside. He further denied the suggestion that entries in register no. 19 are manipulated and tampered. Further denied that samples were not deposited with him.
State vs. Ruben etc., SC no. 142/10 (pg 14)
23. PW21 Inspector Jagbir Singh (IO) deposed that on 11.07.2010 he was handed over further investigation of the case and he alongwith HC Manoj Kumar went to spot where SI Hoti Lal was already present and at the pointing out of SI Hoti Lal he prepared site plan and further SI Hoti Lal also produced one pair of gents shoes and one ladies slipper (chappal) which was taken into possession and further SI Hoti Lal produced a black purse containing Rs. 50/ and two sim cards. He further deposed that after getting the details from sim cards, search for identification of dead bodies were made as by that time there was no clue about the deceased boy and girl and on getting the details, he went to GK alongwith staff in search of father of the girl and came to know that he was working in under construction site at Panchsheel Enclave and later accused Edward admitted his involvement and was arrested and further his disclosure statement and personal search was taken at Panchsheel Enclave. Accused Edward disclosed that his friend Ruben was also involved and at his instance accused Ruben was also arrested from B434, NFC and his personal search and disclosure statement was also recorded. Thereafter, both the accused had pointed out the place of offence and a knife alongwith wooden door from the second floor was taken into possession, he further deposed that knife was recovered at the instance of both accused and broken wood was recovered at the instance of accused Ruben. Thereafter, at the instance of both accused, an iron tray (tasla) was recovered from left side corridor on ground floor of the said under construction house in which State vs. Ruben etc., SC no. 142/10 (pg 15) chunni was burnt. And thereafter one piece of chunni and ashes of burnt chunni were lifted from the front of the house under the saw dust (burada). He further deposed that at the instance of accused Ruben thereafter, a lady chappal was recovered from the tree in the park. And further at the instance of accused broken pieces of door were recovered. And after thorough search of servant room, an I card of Hari Lal was recovered underneath the bed.
24. He further deposed that on the next day, postmortem of the deceased was conducted and after identification by relatives , the body was handed over to their relatives and he also recorded the statement of the witnesses. Further on completion of investigation, put up the challan to SHO.
25. In cross examination, he stated that the investigation of the case was handed over to him at 12 midnight on 11.7.2010. and he do not remember if he had placed record of register no.19 and road certificate and acknowledgment of deposited receipts on record or not. And further after his attention was drawn to the documents, he stated that the said documents of register no.19 etc were not placed alongwith the list of documents. He further deposed that investigation of the case was handed over to him after registration of FIR and at that time he was in PS and reached the spot at around 1.30 am to 2 am and at spot SI Hoti Lal and HC Manoj were present and no public witness was found and State vs. Ruben etc., SC no. 142/10 (pg 16) he had not asked SI Hoti Lal since when he and HC Manoj were present. He further deposed that articles like footwears, purse etc. were not handed over to him by SI Hoti Lal in sealed condition and these were all recovered by SI Hoti Lal before sending the bodies to the mortuary. He further deposed that he had not collected the documents of ownership of sim cards from mobile and details of sim cards were given by the SHO which led to the father of the deceased but he had not recorded the statement of SHO nor noted down any details on the paper. He further deposed that there were no imprint of articles at a place from where they were recovered. He further deposed that it is correct that in site plan Ex. PW21/A no trees have been shown. He further deposed that he do not know if crime team also reached the spot before he reached the spot at night and also do not know if Sr. officers except SHO visited the spot. He further deposed that he did not inquire from SHO and SI Hoti Lal whether the dog squad was called at the spot. He further deposed that normally in murder cases, crime team and dog squads were called to assist investigation. He further deposed that he did not find any requirement to call crime team and dog squad at the spot after investigation was handed over to him. He further deposed that he had not checked shoes and chappal by putting in foot of dead bodies to ascertain whether they belong to dead bodies or not. And further stated that on seeing the footwears and dead bodies just by idea, presumed that they belonged to dead bodies. He further deposed that he remained at the spot for about State vs. Ruben etc., SC no. 142/10 (pg 17) one and half hour to two hours thereafter went to locate accused persons at various places at NFC but do not remember locations and have also not recorded the same in case diary. He further deposed that he visited the premises in the night and also found accused Ruben present but not recorded their statement and further do not remember in which house he went for search of accused.
26. He further deposed that he recorded the statement of persons who met him in GK but do not remember whether he recorded this fact in his case diary and also do not know the block number. He further deposed that he do not know the owner of site where accused was working at Panchsheel and further went to GK in the morning. He further deposed that he came to know in GK that Edward was working as guard in Panchsheel but do not remember his address of Panchsheel Enclave. He further deposed that he went to GK in morning time. And in Panchsheel Enclave at about noon time. He further deposed that he did not find any person at Panchsheel and did not inquire about the ownership of house in question and stayed there for around 45 minutes to one hour and had not prepared any site plan where accused Edward was arrested and reached NFC at B434 in the evening time. And there was no labour present at that time in the house and further had not made site plan of place of recovery. He further deposed that the knife was lying on small table (stool type) and further do not remember whether he had mentioned the same in seizure memo that knife was State vs. Ruben etc., SC no. 142/10 (pg 18) lying on table. He further deposed that he had not taken any photograph before seizing the door and piece of wood. Further also not taken any photograph of tasla or the saw dust. He further deposed that he had not taken photograph of any article or place of recovery. He further deposed that piece of said chunni might be around dimension of 1 cm and found only one piece of chunni balance is the ash of chunni. He further deposed that he had not called crime team at the place of recovery and had not taken any finger prints from the place of recovery.
27. He further deposed that it is correct that in seizure memo of tasla there is no mention of semi burnt piece of cloth and on being shown tasla Ex.P5, there is no semi burnt piece of cloth found in tasla. He further deposed copy of FSL form is not on court record. And in FSL form there was no mention of any semi burnt piece of cloth in tasla. He further deposed that in seizure memo Ex. PW2/M one piece of chunni, no size of burnt piece was mentioned. He further deposed that in remand application when accused were produced before MM for the first time, there is no mention of seizure and had not told Ld, MM regarding seizures. He further stated that inquest papers were handed over to him by SI Hoti lal at AIIMS mortuary but he do not remember the date. He further deposed that it is correct that on documents Ex.PW2/F, ExPW2/G, Ex.PW2/I, Ex.PW2/J, Ex.PW2/H, Ex.PW2/K, Ex.PW2/L, Ex.PW2/M, Ex.PW2/N, Ex.PW2/O, Ex.PW2/P witnesses State vs. Ruben etc., SC no. 142/10 (pg 19) are SI Hoti Lal and HC Manoj Kumar.
Deposition of doctors:
28. PW1 Dr. Hari Prasad deposed that he conducted postmortem on the body of Vimal, female, 21 years. On examination of dead body rigor mortis is passed off. Postmortem lividity is present over back and dependent parts except pressure points. Face is deeply congested. Marbelling present over chest, upper limbs, thighs and sides of abdomen. Abdomen is distended and fouls smelling emanating from the body. Nails are blue in colour. Postmortem ant bite marks are present over right arm, dorsum of right foot, face and front of neck. Sub conjunctival haemorrahage present in both eyes.
Ligature material - a hanker chief as ligature material is present around the neck with two knots at posterior aspect of neck. The circumference of ligature is 25 cm. and width is 3 cm.
Antemortem external injuries:
1. Ligature mark - a faint ligature mark, pale in appearance compare to surrounding skin, placed horizontally and encircling the neck completely, 3 cm in width, circumference is 25 cm is present over the neck. It is placed 8 cm from supra sternal notch, 6 cm from chin in midline and 10 cm below the right and left mastoid process prominces on each side. It is hard to touch and parchment like. On cut section the base is pale and avascular. Thyroid complex is intact. Sub State vs. Ruben etc., SC no. 142/10 (pg 20) mandibular lymph nodes are deeply congested.
2. Laceration of size 1.5 X 0.3 cm subcutaneous tissue deep present over right end of right eye brow and clotted blood adherent to margin with diffuse extravasation in subcutaneous tissue.
3. An abrasion of size 2 X 0.3 cm of reddish brown colour present over right upper eye lid.
4. An abrasion of size 0.5 X 0.5 cm of reddish brown colour is present over middle of forehead.
Scalp diffuse extravasation under the scalp is present in right frontal region.
Brain Brain is soft, friable, liquefied and congested. Lips Both lips are congested.
Lungs - Both lungs are deeply congested. Weight - Right lung 400 grams and left lungs 330 grams.
Stomach - Contains about 100 CC partially digested food material of blackish colour. Mucosa is congested.
Small and large intestine - Walls are greenish in colour. Clothes -
1. Pink colour salwar and kurta with embroidery.
2. Brown underwear
3. Blue colour bra In addition to these clothes there is dry grass and leaves are attached to the clothes. Dry grass and leaves are also present on face, arms and State vs. Ruben etc., SC no. 142/10 (pg 21) legs.
Viscera, blood in gauze and ligature material is sealed and handed over to IO alongwith sample of seal.
Time since death - In this case is about two and half days. Opinion - In this case is asphyxia due to antimortem strangulation, however, viscera has been preserved to rule out any intoxication.
In cross examination, he stated that it is correct that the time since death opined by me about two and half days can be more since it is only on estimation based on my observation.
29. PW5 Dr. Prem Prakash deposed that he was deputed by Medical Superintendent to depose on behalf of Dr. Akash Rajesh Khaira, who has left the hospital and his whereabouts are not known. On 10.07.2010, a dead body of unknown person was brought dead with ligature mark present on the neck and blood stained froth present from mouth as per MLC, who was examined by Dr. Askah Rajesh Khaira vide MLC Ex. PW5/A which bears his signature at point A. He deposed that he had worked with Dr. A.R. Khaira and as such and as such seen him writing and signing several times and on the basis of same he identified his signature at point A. State vs. Ruben etc., SC no. 142/10 (pg 22)
30. PW6 Dr. Siva Prasad deposed that he conducted postmortem on the body of deceased Hari Lal s/o Ganesh Prasad, 26 years, male, who was brought to AIIMS hospital with alleged history of found dead near a park on 10.07.2010 at about 8.30 a.m. He was allegedly strangulated previous evening and the body had been dumped in the bushes near the park. On examination rigor mortis were passed off. Postmortem lividity was present on back and dependent parts. Eyes were closed and mouth was partially opened and tongue was protruded. Face was deeply congested. Foul smell was emanating from the body. Greenish discolouration and marbeling present all over the body. Nails and palms were bluish in colour.
Following antemortem injuries were present on the body:
1. Ligature mark a dark brownish coloured, hard to touch, 34 cm in width, horizontally placed, 7 cm below chin and 10 cm above suprasternal notch in the midline, 7 cm below right mastoid prominence and 8 cm below left mastoid prominence. It was more prominent on left lateral aspect and anterior aspect of the neck. It was hard to touch and parchment like. On cut sections the base was pale in appearance. There was extravasation of blood into the surrounding subcutaneous tissues in the left lateral and right lateral aspects of the neck. Thyroid Hyoid complex was intact. Submandibular lymph nodes were congested. The circumference of the ligature mark was 45 cm.
2. A bruise of size 6 X 4 cm, bluish in colour was present in the thenar area of the right palm.
State vs. Ruben etc., SC no. 142/10 (pg 23) On internal examination, there was little extravasation of blood into the subscalp in left frontal region. Lungs were deeply congested. Stomach was empty and mucosa was mildly congested. Liver and kidneys were congested.
Clothes - one trouser and one tshirt were present on the body. Viscera for chemical analysis, blood in gauze and clothes were sealed and handed over to police.
Time since death was about 2 ½ days. The cause of death in case was asphyxia due to strangulation by ligature. However, viscera had been preserved to rule out any intoxication.
In cross examination, he deposed that he found no piece of cloth or thread was found on the neck near the ligature mark. And further deposed that time of death is only on estimation and can be more or less.
Material Exhibits:
31. Ex.PW13/A is DD no. 8A recorded at PS at around 8.25 am on 10.07.2010 regarding lying of dead bodies at B Block, Shankar Market park, NFC. Ex.PW2/B is the rukka prepared by SI Hoti Lal at spot on 10.07.2010 at around 11.55 pm pursuant to which an FIR Ex. PW15/B u/s 302 IPC was registered. Ex.PW4/A is the rough site plan of the spot prepared on 11.7.2010. Ex.PW12/A is the scaled site plan prepared on 10.7.2010. Ex.PW2/D is the seizure memo of the purse containing Rs.50/ and two sim cards. Ex.PW2/C is the seizure memo State vs. Ruben etc., SC no. 142/10 (pg 24) of shoes and chappal recovered from the park. Ex.PW2/G is the pointation memo prepared at the instance of both the accused of the place where they have concealed the dead body dated 11.07.2010.
Ex.PW2/K is the pointation and seizure memo of knife (vegetable cutting knife) and broken piece of door at the instance of accused Ruben and Edward on 11.07.2010. Ex.PW2/L is the seizure memo of plywood recovered at the instance of Ruben on 11.7.2010. Ex.PW2/M is the pointation memo and seizure memo of iron tray (tasla) at the instance of accused Ruben on 11.7.2010. Ex.PW2/N is the pointation memo and seizure of ashes and piece of chunni from the heap of saw dust from the lawn of kothi no. B434, NFC. Ex.PW2/O is the pointation memo and seizure memo of ladies chappal from the safeda tree in the park. Ex.PW2/P is the seizure memo of voter I card of Hari Lal from the room where the incident took place and which was lying inside the bed.
32. Ex.PW2/F is the arrest memo of accused Edward, Ex.PW2/E is the disclosure statement of accused Edward, Ex.PW2/I is the arrest memo of accused Ruben, Ex.PW2/H is the disclosure statement of accused Ruben. Ex.PW3/A & Ex.PW4/A are the identification statement regarding the dead bodies.
33. Ex.PW5/A is the MLC of dead body of unknown male brought to the State vs. Ruben etc., SC no. 142/10 (pg 25) hospital at about 10.19 am on 10.07.2010. Mark A is MLC of dead body of unknown female brought to the hospital at about 10.20 am on 10.07.2010. Ex.PW6/A is the postmortem report of deceased Hari Lal showing that the postmortem was conducted on 12.07.2010 between 4 pm to 5 pm and it is opined that the cause of death is asphyxia due to strangulation by ligature. Ex.PW1/A is the postmortem report of deceased Nirmal conducted on 12.07.2010 at around 3.10 pm to 4.15 pm and cause of death opined to be asphyxia due to antemortem strangulation. Ex.PW21/C is FSL report.
Date and timings of some Events:
34. 10.07.2010 at 8.25 am: Receiving of information regarding the lying of dead body at B Block , Shankar Market park. 10.07.2010 at 10.19 am: time of arrival of dead bodies at AIIMS. 10.07.2010 at 11.55 pm:
Rukka was prepared by SI Hoti Lal at spot. 11.07.2010 at 12.40 am vide DD no. 4 A rukka was brought to PS and endorsement on rukka was made at 12.40 am. 11.07.2010 at 3.15 pm: Accused Edward was arrested near A1/15, Panchsheel Enclave. 11.07.2010 at 5.45 pm: accused Ruben was arrested from D434, NFC.
35. Ld. Counsel for the accused from legal aid submitted that entire case of the prosecution is based on circumstantial evidence. The first State vs. Ruben etc., SC no. 142/10 (pg 26) circumstance is the recovery of two sim cards from dead body of deceased Hari Lal which led to accused Edward and thereafter at the disclosure of accused Edward, Ruben was apprehended. Ld. Counsel further submitted that as per prosecution those sim cards were recovered from the pant pocket of deceased Ruben but there is nothing mentioned in the rukka about the recovery of those sim cards even in the deposition of PW19 Jitender who accompanied SI Hoti Lal to the spot had not stated that SI Hoti Lal had recovered the sim cards from the pant pocket of deceased Hari Lal. ld. Counsel for the accused further submitted that it is unnatural that anybody will keep only sim cards in his pocket. ld counsel further submits that there is no investigation on the point what are the mobile nos. to which those sim cards belongs and even no details how from those sim cards accused Edward was located. The recovery of these sim cards cannot in any manner be believed because as per prosecution case these were recovered before the dead bodies were taken to hospital i.e, about 10.20 am in the morning but the rukka was prepared at 11.55 pm in the night. During this period there is no documents to suggest that these sim cards were recovered from deceased Hari Lal. Ld. Counsel further submits that pursuant to the details as derived from the sim cards police first went to GK part I and came to know that accused was at Pansheel Enclave but not recorded statement of anybody at GK or Panchsheel. Ld. Counsel further submits that from Panchsheel accused Edward was brought to NFC and at his instance accused Ruben was State vs. Ruben etc., SC no. 142/10 (pg 27) arrested. Even there is no witness joined from NFC house i.e, spot B434.
36. Ld. counsel further submits that at the instance of accused persons shown the recovery of knife, broken door but these are not linked to any offence and not in any manner incriminating. Ld. counsel further submitted that in the recovery memo of tasla there is no mention of any semi burnt piece of chunni and further there is no semi burnt piece of chunni produced before the court. Ld. counsel further submits that clothes of deceased were not produced and thus vital evidence is withheld by police. Ld. Counsel further submits that there was no public witness joined at the time of recovery of knife, wooden piece, or ashes and piece of burnt chunni.
37. Ld. Counsel further submits that some of witnesses says that crime team was called at spot but there is no crime team report on record neither any official of crime team was examined. Even the photographs stated to be taken by private photographer was not examined. ld. counsel for the accused submitted that PW2 Hoti Lal stated the photographs of the room at second floor of B434 NFC where the alleged murder taken place were taken but these were not placed on record and further IO on the contrary stated that no photographs of that room was taken. Ld. Counsel further submits that police has not even taken the photographs of the room where the crime State vs. Ruben etc., SC no. 142/10 (pg 28) has committed and this in itself shows that police is trying to conceal all the material facts.
38. Ld. counsel further submitted that footwears and chappals recovered near the dead body of the deceased but police did not tried to ascertain whether the same fits in foot of deceased nor shown to any family members of the deceased therefore it is not proved whether those belonged to the deceased and therefore in no manner stated to be incriminating in the present case. Ld. counsel further submitted that there was no public witness joined at any point of investigation and recoveries were not reported to Metropolitan Magistrate which is violation of 102 Cr.P.C.
39. Ld. counsel further submitted that there is no forensic examination of the entire track i.e, from 2nd floor of the house to the place where dead bodies were thrown which could establish that the place of crime was in fact that room. Ld. counsel further submitted that there is no explanation for delay in preparation of rukka and consequent registration of FIR . And there is apparent contradiction also in the time of arrest of accused persons . Ld. counsel further submitted that the prosecution miserably failed to prove its case and accused are entitled for acquittal.
40. Ld. Addl. PP for the State on the other hand submitted that the State vs. Ruben etc., SC no. 142/10 (pg 29) accused Edward do not liked the relations between his daughter Vimal and deceased Hari lal and this is the prime motive of killing deceased Hari Lal as both were found in objectionable condition. Ld. Addl PP further submits that at the instance of accused persons there are incriminating recoveries of knife, broken plywood piece and burnt piece of chunni and ashes and as per FSL report that burnt piece of chunni matches with the clothes of the deceased. ld. Addl. PP submitted that non joining of public witnesses, delay of recording of FIR etc. are minor deficiencies and do not hit at the core of the prosecution allegation to make them unreliable. ld. Addl. PP further submitted that prosecution has proved its case beyond doubt.
41. Arguments heard. Record perused.
42. According to prosecution on receiving the information regarding lying of dead bodies near a park in NFC PW2 SI Hoti Lal alongwith PW15 Ct. Jitender Kumar reached spot and after some time SHO and crime team also reached and photographs of the dead body were taken and thereafter on conducting search of male dead body, two sim cards of mobile were recovered from his back pocket. And thereafter, the dead bodies were taken to AIIMS and as per MLC the dead bodies were reached at AIIMS mortuary at about 10.19 am in the morning, thereafter, surprisingly, despite the statement of PW2 that he came back to spot and prepared rukka, rukka was sent to PS at around 11.55 State vs. Ruben etc., SC no. 142/10 (pg 30) pm in the night and the case was registered at 12.40 am on the next day and consequent to that, further investigation of the case was handed over to Inspector Jagbir Singh (PW21) IO who stated that thereafter he got the details from the sim cards and went first to GK where he came to know that accused Edward was present at Panchsheel from there accused Edward was arrested and he disclosed that he alongwith Ruben committed the murder of his daughter Vimal and Hari Lal.
Thereafter, he was brought to H.No. B434, NFC where at his instance Ruben was arrested and his disclosure statement was also recorded.
43. The entire case of prosecution is based on circumstantial evidence and there is no direct evidence connecting the accused with the crime. The entire investigation unfolds on the basis of the disclosure statements of the accused Edward and Ruben. As per the disclosure statements of accused persons, accused Edward is not agreeable to marriage between deceased Hari lal and his daughter Vimal and on 9.07.2010 at around 7 pm when he went to meet Ruben who was working as chowkidar in kothi no. B 434, NFC. Ruben disclosed him that Hari Lal and his daughter Vimal are in his room on second floor servant quarter. Thereafter, he went to that room and found both of them in objectionable condition and thereafter, he slapped Hari Lal and on this Hari Lal got furious and tried to attack Edward. In the meanwhile, Edward with help of Ruben got control of him and strangulated him with the help of the chunni of deceased Vimal. Further, when deceased State vs. Ruben etc., SC no. 142/10 (pg 31) Vimal tried to raise cries, they also strangulated her with the help of handkerchief . Thereafter, both the accused persons had brought down the dead bodies of deceased Hari Lal and injured on the ground floor and from the window at ground floor had thrown both the bodies towards park, after that both the bodies were thrown on the grass and covered with the loose grass. After that they had brought their shoes, chappal and chunni from the room and thrown them outside the kothi and chunni was burnt in a iron tasla on the ground floor and thereafter the ashes were concealed in the wooden saw dust lying at the ground floor.
44. Pursuant to their disclosure statements, accused persons had pointed out the place where they concealed the dead body and thereafter at their instance the vegetable cutter knife and broken door of the room were seized. Thereafter, at the instance of accused Ruben a broken piece of door was recovered. Thereafter at the instance of both the accused iron tasla was recovered and as per seizure memo iron tasla having some ashes found stuck with tasla and tasla was thereafter seized and sealed. After that at the instance of accused persons ashes and a piece of chunni was recovered from the wooden burada and lastly at the instance of accused Ruben one ladies chappal which was hanging on safeda tree was recovered. And further on search of room at second floor, election voter card of Hari Lal deceased was recovered beneath the bed of the room.
State vs. Ruben etc., SC no. 142/10 (pg 32)
45. Thus, according to prosecution story material incriminating circumstances against the accused persons are recovery of sim cards from the back pocket of male deceased Hari lal and other recoveries of vegetable cutter knife, burnt pieces of chunni, ashes of chunni, broken wooden piece of door and a chappal from the safeda tree at the instance of accused persons. And the motive of the crime as alleged by prosecution is that accused Edward is not agreeable to the marriage of deceased Hari Lal with his deceased daughter.
Circumstance of recovery of two sim cards from the dead body of deceased Hari Lal:
46. According to prosecution on receiving the information of lying of dead bodies at the spot, PW2 SI Hoti Lal alongwith PW15 Ct. Jitender kumar reached spot and after some time SHO also reached the spot, recovered two sim cards from back pocket of the pant of deceased Hari Lal and as per statement of PW2 SI Hoti Lal, crime team and photographers were called at the spot. Admittedly, there is no crime team report on record. PW21 Jagbir Singh (IO) had stated that he did not know whether crime team was called at spot. The photographs of the spot including dead bodies and chappals, shoes etc. do not show whether any sim cards etc., were also recovered from the dead body at State vs. Ruben etc., SC no. 142/10 (pg 33) that time. It is unexplained by the prosecution that when the sim cards were recovered in the morning before the dead bodies were taken to hospital by PW2 and PW15 , why the rukka was prepared at 11.55 pm in the night. Further even there is no mention of recoveries of sim cards from the back pocket pant of deceased Hari Lal in rukka.
47. PW15 Ct. Jitender had not stated anything about recovery of these two SIM cards who was accompanying PW2 SI Hoti Lal at that time. It is not explained if two SIM cards were recovered in the morning why the information from them not gathered at that time, why police waited till 1'O clock night that is for about 14 hours after recovery. This itself create doubt about the recovery of the sim cards from the dead body of deceased Hari lal.
Circumstance of recovery of vegetable cutter knife, ashes of chunni, piece of chunni, broken plywood door and piece of plywood door and recovery of iron tray and chappal from spot at the instance of accused persons:
48. According to prosecution after the arrest of accused persons, they pointed out the place i.e, second floor servant quarter where they committed both murders and at their instance a vegetable cutter knife was recovered from the floor of that room as per seizure memo State vs. Ruben etc., SC no. 142/10 (pg 34) Ex.PW2/K. Further, accused Ruben had handed over a piece of plywood to the IO and the same was seized vide seizure memo Ex.PW2/L, but there is nothing mention in that seizure memo from where the accused Ruben had picked up that broken piece of plywood. Further, at the instance of both the accused persons from the said house no. B434 from the gallery one iron tray was recovered in which some ashes got stuck which the accused persons suggested used for burning the chunni and the same was seized vide seizure memo Ex. PW2/M. Thereafter, on pointing out of both accused from the lawn of said house and from heep of burada ashes of chunni were recovered.
49. These are the incriminating recoveries effected at the instance of accused persons and all these recoveries were witnessed by PW2 SI Hoti Lal and PW17 HC Manoj Kumar in presence of IO PW21 Jagbir Singh. PW2 Hoti Lal in cross examination stated that the pieces of chunni were recovered from the second floor room inside the parath (iron tray) and he had not counted the pieces inside the parath though volunteered it was in ashes form. Whereas PW21 IO Jagbir Singh stated in his examination in chief that iron tray was recovered from the left side corridor from the ground floor in which chunni was burnt and thereafter a piece of burnt chunni and ashes were recovered from the house under the saw dust. There is contradiction between statement of both these witnesses PW2 and PW21 regarding the place of recovery of pieces of ashes of burnt chunni and tasla (iron tray) because PW2 State vs. Ruben etc., SC no. 142/10 (pg 35) says these were recovered from room on second floor whereas PW21 states that these were recovered from ground floor. PW2 also deposed in cross examination that before recoveries IO had taken photographs of the room but he could not say whether photograph were taken before seizing the same however, he knew that photographer was called and taken. Whereas PW21 IO in cross examination deposed that no photographs of seized material were taken. PW17 also stated that no photographs prior to the seizure were taken at the spot.
50. PW21 in cross examination had stated that the said knife was recovered from the stool inside the room whereas as per seizure memo it was recovered from the floor. PW17 Ct. Manoj stated that on the pointing out of both the accused one iron tasla (parath) was recovered containing some ashes andpieces of burnt chunni whereas PW21 IO stated that the piece of burnt chunni was recovered from the ash in burada and IO had not stated that it was recovered from the parath. Admittedly, no public witness was joined while recovering all the incriminating articles and these contradiction itself create doubts over the recovery in the manner as suggested by the prosecution. Delay in recording of FIR:
51. According to prosecution, PW2 alongwith PW15 Ct. Jitender on receiving DD no. 8A at 8.25 am reached the spot and thereafter within State vs. Ruben etc., SC no. 142/10 (pg 36) 15 minutes SHO also reached at around 9 am, thereafter the dead body was taken to AIIMS hospital and as per MLC dead body reached the hospital at around 10.20 am and said sim cards were already recovered by SI Hoti Lal prior to sending of dead body to hospital but despite all these no rukka was prepared and rukka was prepared at around 11.55 pm in the night, there is a delay of around 13 hours in preparation of rukka and there is no explanation put forth by any of the prosecution witness explaining the said delay.
52. PW2 SI Hoti Lal in his examination in chief stated that after registration of FIR after some time IO Jagbir Singh and HC Manoj Kumar came to spot and he handed over the two sims of mobile to IO who checked those sims by using it in some mobile . Therefore, it is clear that those two sims remained with Hoti Lal PW2 till after the registration of FIR on the next day i.e, 11.7.2010 and thereafter those sims were handed over to IO who checked them by using them in some mobile and thereafter went in the search of accused persons. Whereas PW21 IO Jagbir Singh in cross examination stated the details which led to the father of deceased i.e, Edward were given by SHO but he had not recorded the statement of SHO regarding said details. This is a material contradiction between PW2 and PW21 and created explicit doubt over the manner of conducting of investigation by the police. It is worth to be mentioned that none of these witnesses stated that they have on receiving the details examined the house owners of B434 State vs. Ruben etc., SC no. 142/10 (pg 37) NFC, GK or Panchsheel house. Nor any call details were filed. Even the mobile numbers of SIM cards are not disclosed by prosecution. Circumstances of arrest of accused persons:
53. According to prosecution after getting the details from said sim cards, PW21 IO alongwith SI Hoti Lal and Ct. Manoj Kumar went to GK and there they came to know that accused Edward work at construction site in Panchsheel Enclave from where he was apprehended. In cross examination this PW21 (IO) stated that he do not remember in which house he went in GK and further do not remember whether he had recorded the statements of person who met him at GK and also he do not know the block no. of GK and further stated that he do not remember the address of Panchsheel Enclave from where accused Edward was apprehended though it was noon time. PW17 HC Manoj Kumar stated that he went to GK in the night at around 1.302 am and could not tell the name of person who met there and no statement of said person was recorded and they stayed there for about 15 minutes thereafter reached Panchsheel Enclave at A1/15 but do not remember when they reached but reached after 15 minutes. And also cannot tell the name of person whom they met. No statements of those persons were recorded and they stayed there for about one and half hour. Thereafter they came with accused Edward to B434 NFC and it took around half an hour to reach NFC and found accused Ruben at NFC.
State vs. Ruben etc., SC no. 142/10 (pg 38) Therefore as per the statements of these witnesses they have searched the accused persons in the night itself within a gap of 34 hours i.e, at maximum at around 5 am in the morning of 11.7.2010. As per the arrest memos of the accused persons accused Edward was shown to be arrested at around 3.15 pm (late afternoon) on 11.7.2010 and accused Ruben was shown to be arrested at 5.45 pm (evening) from B434, NFC. As per of statements of PW17 HC Manoj these accused were arrested in night itself from Panchsheel Enclave and NFC therefore, it casts doubt about the preparation of arrest memos and falsifies the circumstance of arrest of accused persons, consequently created doubt on the sequence of events including recoveries at the instance of accused persons.
Motive:
54. According to prosecution, the motive for killing of the deceased was due to the fact that accused Edward do not want to marry his daughter deceased Vimal with Hari Lal because he was dependent upon her income and in this regard the prosecution had examined PW9 Anand Kumar who stated that deceased Vimal daughter of accused Edward used to work in the house of Mrs. Sabharwal who used to tell that accused Edward used to take salary from Vimal but in cross examination he stated that he had no talks with Vimal regarding her salary. Further Aruna Sabharwal (PW14) have also denied any such State vs. Ruben etc., SC no. 142/10 (pg 39) fact. PW11 Daisy, sister of deceased Vimal also stated that deceased Vimal wanted to marry deceased Hari Lal but it could not be finalized but she do not know why marriage could not be finalized, through in cross examination she stated that her father was agreeable for marriage. Whereas PW10 Rajesh husband of PW11 Daisy stated that he was told by Daisy that as her father was angry therefore, marriage could not be finalized between Vimal and Hari Lal. There is nothing tangible came out from the deposition of these witnesses regarding the motive of the crime. Further, as per prosecution case, there is no prior planning of murder and accused Edward just reached the spot all of a sudden and found both of them in objectionable condition and due to altercation Ruben also involved and they murdered the deceased persons. Therefore, no motive as alleged is deducible from prosecution story.
FSL Report:
55. As per FSL report Ex. PW21/C , parcel no.4 consists of iron tray (tasla and ash) sealed with the seal of JS and the consequent Ex. P4 prepared by FSL which shows that this metal plate (tasla) containing semi burnt small pieces of clothes. As per Ex.PW2/M the said tasla was seized and having only ashes but there is no mention of any semi burnt pieces of chunni in that tasla. Even PW21 also states that it only have ashes stuck on it and in FSL form their is no mention of burnt State vs. Ruben etc., SC no. 142/10 (pg 40) pieces clothes in tasla. Whereas as per Ex.P4 of FSL report shows to contain semi burnt piece of cloth. This in itself shows that there is some tampering of ashes in the said tasla after seizure from the spot.
56. As per parcel 3 in FSL report, it contains ash of chunni and small piece of chunni and the same was exhibit as Ex.P3 in said report and as per seizure memo Ex.PW2/N, ashes and a piece of chunni was recovered from saw dust but there is no mention of any piece of saw dust in the said parcel P3. It is unlikely that while collecting the ashes which was mixed in saw dust, there will not be any particle of saw dust came alongwith ashes which itself creates doubt the seizing of ashes and a burnt piece of chunni. Further, there is no site plan on the spot from where these ashes were recovered nor any photographs were taken. Even PW2 & PW21 had deposed differently regarding the place of their recovery. It appears that this circumstance of burning of chunni is fabricated.
Material Omissions and Deficiencies and contradictions in depositions of PW2, PW17 & PW21(IO):
57. PW2 SI Hoti Lal in examination in chief stated on his reaching the spot SHO Sunil Kumar and crime team also reached there and photographer had taken several photographs from various angles but there are no statements of crime team members nor there is any crime State vs. Ruben etc., SC no. 142/10 (pg 41) team report on the record. This witness also in cross examination could not tell the name of the Incharge of crime team, but stated that crime team also inspected the surrounding area, and photographer was a private photographer summoned by SHO but that photographer was never examined nor the SHO Sunil Kumar was examined who called the said photographer. PW21 IO even could not tell whether there was any crime team inspected the spot or not. PW15 who reached the spot with PW2 stated that he do not remember whether crime team reached the spot or not.
58. PW21 IO Inspector Jagbir Singh in his cross examination stated that he could not find any requirement to call dog squad or crime team for assistance in investigation.
59. PW2 SI Hoti Lal in his cross examination stated that he had not tried to lift any foot print or fingerprint from the shoes and chappals and also not tried to put the shoes and chappals in their feet as to ascertain whether they belong to dead bodies or not. PW21 (IO) stated that he find no need to put chappal and shoes in foot of deceased to ascertain whether it belongs to them or not.
60. PW2 Hoti Lal deposed that photograph were taken of the room where the crime had taken place but PW21 IO had stated that no photograph were taken. Surprisingly, no crime team was called to inspect room State vs. Ruben etc., SC no. 142/10 (pg 42) where murder took place. As per prosecution case the said bodies were taken out by the accused persons from the second floor of the room first to the ground floor and thereafter were thrown at park but no forensic examination of the said entire track was conducted by the prosecution. It is also stated by IO PW21 that he thought no need of calling of dog squad or finger print expert. The investigation in this case is completely pathetic.
61. PW8 MP Gogia who was working at the time of incident as builder at H.No. 434 NFC which was owned by Mr. Chaman Viz PW7 and also kept accused Ruben as chowkidar at that house where said room was located (where both murder stated to have taken place) deposed in cross examination that on 10.07.2010 he came to know through his labour that the police has locked the premises and stopped the work and this fact was informed to him by one of the labour at around at 12 O' clock and the said labour informed that in the morning when they went for site police did not allowed them to work as premises was locked and he further deposed that labour used to come at around 8.30 to 9 am in the morning. According to this witness police has locked the said premises B434 in the morning i.e, between 9 am to 12 am on 10.07.2010 i.e, on the date when the information in the morning was received by police regarding said occurrence and as per prosecution police reached the spot at around 8.30 am. It implies that the police got the entire information about the identity of the deceased and State vs. Ruben etc., SC no. 142/10 (pg 43) involvement of that H.No. B434 in the said incident just on reaching. But as per prosecution story police had no clue till late night and on call details they came to know about accused Edward and subsequently about accused Ruben and entire story as per prosecution is unfolded on 11.7.2010. This discrepancy in itself jolted the credibility of the entire prosecution story and points towards facts that police fabricated entire story. Further, this all story of prosecution of unfolding of the case on the basis of SIM cards got falsified.
62. Ld. counsel for the accused submitted that the entire recovery and seizure memos are witnessed by PW2 SI Hoti Lal and PW17 HC Manoj Kumar and all appears to be made in the PS. As per deposition of PW2, PW17 and PW21 who are associated with the material circumstance of arrest and recoveries, no independent witness was joined at any point of time of investigation. No photographs of any place of recovery was taken. No forensic expert was called. No call details or even the mobile numbers of sim were recorded. The demeanor and evasive replies of these witnesses on various questions of time and association of witnesses, even could not tell the the persons whom they met at GK, Panchsheel Enclave or New friends colony shows that they are concealing material facts from the court. This all reinforce doubt that the entire documents might possibly be prepared in the PS itself.
State vs. Ruben etc., SC no. 142/10 (pg 44)
63. On overall appreciation, the prosecution story appears to be fabricated on each and every circumstance, from preparation of rukka, recovery of sim cards, recovery of vegetable cutter knife, iron tray, ashes of chunni, plywood, chappal etc., at the instance of accused. The circumstances of arrest of accused also appears to be false and fabricated. Further no scientific evidence is collected by the police and even they do not find it proper to collect the same. It is surprising in such a heinous crime, no crime team report or no forensic expert were called at the spot. Police has not tried to investigate the track from forensic angle how the dead bodies were brought from second floor to park which itself created grave doubt about the place of committing of murder. Further, no photographs of that room were not taken.
64. Burden of proof is on prosecution to prove its case but prosecution miserably failed to prove the case against accused persons and their entire story appears to be artificial and fabricated. Thus the accused persons are acquitted of all charges. Accused persons are directed to furnish personal bond in sum of Rs. 20,000/ with one surety of like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 14th October, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State vs. Ruben etc., SC no. 142/10 (pg 45)