Delhi District Court
State vs . Abdul Qadir @ Adil & Another on 21 November, 2014
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION JUDGE 04 (NORTHWEST DISTRICT) ROHINI COURTS, DELHI IN THE MATTER OF : S.C. No. 111/08 Unique case ID No. 02404R0694452008 FIR No. 64/08 U/S 302/394/397/411/34 IPC P.S. Adarsh Nagar State Vs. Abdul Qadir @ Adil & another STATE VERSUS 1. Abdul Qadir @ Adil S/O Noor Mohmed , R/O Village Sidari, P.S. Sidari, Distt. Azamgarh, U.P. 2. Kanshi Ram S/O Sh. Ram Lal, R/O Village Dehmu, P.S. Ujani, Distt. Badayun, U.P. Date of receipt of file in this Court: 20.01. 2014 Date when arguments were heard: 11.11.2014 Date of judgment : 21.11.2014 JUDGMENT
1. Both the above said accused persons have been charge S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 1 of 61 sheeted by P S Adarsh Nagar for commission of offences punishable U/S 302/394/397/411/34 IPC.
2. Copies of charge sheet were supplied to both the accused persons. The Ld. Addl. Chief Metropolitan Magistrate after complying with the provision of Section 207 CrPC, committed the case to the Court of Sessions as the offences punishable U/S 302/397 IPC are exclusively triable by the Sessions Court.
3. Story of the prosecution in brief is that on 07.03.2008 at about 7.30 p.m. PW7 HC Jagat Singh who was working as a Duty Officer at P S Adarsh Nagar, received a message from PCR that one person was lying in an inebriated condition at the gate of Subzi Mandi Bank Complex which was reduced in writing vide DD No. 34 A ( Ex. PW 7/A) and the copy of the same was handed over to PW23 ASI Paramjeet Singh. After receiving the said DD Ex. PW 7/A, PW23 along with PW15 Prabhu Sah went to the spot i.e. main gate Bank Complex, N.S. Mandi, Azad Pur, Delhi where they found the dead body of Yogesh ( deceased) lying there with a cut on its neck and the blood was also found scattered there in a large quantity. PW23 gave information to the P.S. Adarsh Nagar from where PW21 Inspector Sanjay S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 2 of 61 Drall along with PW12 Ct. Jai Bhagwan left the P.S. for the spot vide DD No. 38 A ( Ex. PW 21/A). One visiting card Ex. PX ( seized vide seizure memo Ex. PW 21/D) was found in the pocket of the wearing pants of the deceased on which Haryana Nepal Road Line was written having the mobile numbers and address of the said company. The owner of the said company i.e. PW3 Mr. Ajay Kanwar Singh ( complainant) was contacted through the said number who reached the spot and identified the deceased as Yogesh Kumar, one of his employee. The family members of the deceased were also informed by PW21 and PW3. The statement of PW3 i.e. Ex. PW 3/A was recorded by PW21, on the basis of which the rukka Ex. PW 21/B was prepared and PW12 was sent to P.S. along with rukka for registration of the case. On 07.03.08 at about 10.25 p.m., PW 7 H C Jagat Singh received a rukka through PW12 sent by PW21 and registered the case FIR ( Ex. PW 7/B). PW7 also made endorsement on the original rukka vide DD No. 40A and the said endorsement is Ex.PW 7/C. PW21 called the crime team at the spot which inspected the spot and PW13 HC Mahinder who was posted as a Ct. photographer with crime S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 3 of 61 team( N/W) took the photographs of place of occurrence and dead body from different angles .The photographs are Ex. PW 13/A8 to Ex. PW 13/A13 and the negatives are Ex. PW 13/A1 to Ex. PW 13/ A6. PW21 lifted blood from two places,earth control and blood stained earth control and the same were put into four separate plastic containers which were sealed with the seal of SKD and were taken into possession vide memo Ex. PW 21/C. PW21 prepared the site plan Ex. PW 21/E. During the proceedings PW12 reached at the spot along with original rukka and copy of FIR, which he handed over to PW21 . The crime team also prepared the inspection report and handed over to PW21. The dead body was got removed by PW21 through PW15 to mortuary, BJRM Hospital, Jahangir Puri, Delhi. The family members of the deceased identified the dead body of the deceased at the hospital vide Ex. PW 1/A and Ex. PW 2/A. PW 21 prepared inquest papers Ex. PW 21/F and got the postmortem done through PW9 Dr. Kulbhushan Goel, who gave the postmortem report Ex. PW 9/A with the opinion that the cause of death was hemorrhagic shock consequent upon injuries to neck vessels as a result of cut throat injury which was S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 4 of 61 sufficient to cause death in the ordinary course of nature , the cut throat injury was antemortem in nature caused by sharp cutting edged weapon and the time since death was about 18 hours. The dead body after postmortem was handed over to the relatives vide Ex. PW 1/B. After the postmortem, PW9 ( doctor) handed over two parcels and one sample seal of BJRM Hospital to PW15 who further handed over the same to PW21 which were seized vide memo Ex. PW 15/A. PW21 recorded the statement of witnesses and the exhibits were deposited with PW18 HC Mukesh Kumar, MHC(M). Further investigation was assigned to PW28 Inspector Ram Chander.
On 12.04.2008, the accused Abdul Qadir was arrested in one case FIR No. 97/08, P S Adarsh Nagar, U/S 307/392/395/397/411/452/34 IPC by PW26 Inspector Sudesh Ranga vide arrest memo Ex. PW 22/A and he disclosed about his involvement in the present case vide disclosure statement Ex. PW 26/B. On 20.04.2008 accused Kanshi Ram was also arrested in said FIR No. 97/08 by ASI Mahavir Singh vide arrest memo Ex. PW 19/A and he also disclosed about his involvement in the present case vide disclosure statement Ex. S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 5 of 61 PW19/B ( be now read as Ex. PW 19/B1). Thereafter on 20.04.2008 itself the accused Kanshi Ram was arrested in the present case by PW28 vide arrest memo Ex. PW 19/C. During police custody remand, the accused Kanshi Ram on 22.04.2008 made a disclosure statement Ex. PW 16/A to the effect that the katta which was used in the present case had already been recovered in above said FIR No. 97/08, copy of seizure memo of said country made pistol/ katta is Ex. PW 19/B and the sketch of desi katta and live round ( cartridge) is Ex. PW 28/A. The pointing out memo at instance of accused Kanshi Ram of place of occurrence is Ex. PW 16/B. The site plan of place of occurrence as prepared by PW28 at instance of accused Kanshi Ram is Ex. PW 16/C. On 23.04.08, accused Kanshi Ram led the police party to H.No. H1/ 492, first floor, Jahangir Puri, Delhi and from there he got recovered some blood stained documents ( Ex. P3 colly) which were seized vide seizure memo Ex. PW 19/D. The accused Abdul Qadir @ Adil who was also earlier arrested in above said FIR No. 97/08, P S Adarsh Nagar and had made a disclosure statement regarding his involvement in the present case was arrested in the present S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 6 of 61 case on 24.04.2008 by PW28 vide arrest memo Ex. PW 16/D. The disclosure statement of accused Abdul Qadir @ Adil in the present case is Ex. PW 16/E. Thereafter accused Abdul Qadir @ Adil led the police party to the spot and pointed out the place of occurrence vide memo Ex. PW 16/F and the site plan of place of occurrence at the instance of said accused is Ex. PW 16/G. In intervening night of 24/25.04.2008, during police custody remand, the accused Abdul Qadir led the police party, consisting of police officials including PW28, PW24 SI Ram Kanwar Dahiya and PW16 HC Ashok Kumar, to his jhuggi at Sarai Peepal Thala, Azad Pur Mandi, Delhi, from where inside his room from under a wooden plank on which one Kanastar of flour was kept along side the wall, he got recovered one small knife ( Ex. P2) having blood stains, which was seized vide memo Ex. PW 16/H and the sketch of the knife is Ex. PW 16/G. Thereafter, the accused Abdul Qadir took out one green color bag ( Ex. P
1) from under a bichhona of his jhuggi and produced it before PW28, which was seized vide memo Ex. PW 16/J. On 29.05.2008,PW3 correctly identified the said green color bag Ex.P1 during judicial TIP proceedings of case property before S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 7 of 61 PW25 ( the then Ld. ACMM) and the said proceedings are Ex. PW 25/C. On 07.06.2008, PW28 sent PW24 SI Ram Kanwar to BJRM Hospital with an application Ex. PW 28/C seeking subsequent opinion of the doctor regarding weapon of the offence and the said subsequent opinion is Ex. PW 9/B vide which PW9 opined that the cut throat injury mentioned in postmortem report Ex. PW 9/A was possible by the said knife or similar such type of other weapon. During the course of investigation, PW18 ( MHC(M)) on the instructions of PW28 sent 8 sealed exhibits to FSL through PW14 Ct. Om Prakash vide RC No. 48/21/08. Upon directions of PW28, PW17 SI Mahesh Kumar - Draftsman prepared the scaled site plan Ex. PW 17/A. One of the accused Sobhnath could not be traced, his NBWs were obtained by PW28 and thereafter proceedings U/S 82/83 CrPC were taken against him. The FSL reports were collected which are Ex. PW 27/A and Ex. PW 27/B. The crime team report is Ex. PW 28/F .The information furnished by PW3 regarding the documents as well as cash in bag Ex. P1 and details of places visited by the deceased which are Ex. PW 28/G1 to Ex. PW 28/G3. The copy of FIR No. 97/08, P S S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 8 of 61 Adarsh Nagar is mark PW 28/1. After completion of the investigation, charge sheet was filed against both the above said accused persons U/S 302/394/397/411/34 IPC.
4. Both the accused persons are facing trial on the allegations of the prosecution that on 07.03.08 in between 7 to 7.30 p.m. at Main Gate, Bank Complex, N.S. Mandi, Azar Pur, Delhi within the jurisdiction of P S Adarsh Nagar, both of them along with their co accused Shobhnath ( since absconding), in furtherance of their common intention robbed the deceased Yogesh of a bag containing currency notes of Rs.52650/ and other documents and at the above mentioned date, time and place they in furtherance of their common intention voluntarily caused hurt on the person of Yogesh ( since deceased) with a knife at the time of committing the aforesaid robbery and thereby committed an offence punishable U/S 392/394/34 IPC.
Both the accused persons are further facing trial on the allegations of the prosecution that on the above mentioned date, time and place, they along with their co accused Shobhnath ( since absconding), in furtherance of their common intention, committed the murder of Yogesh by slitting his throat with a knife S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 9 of 61 and thereby committed an offence punishable U/S 302/34 IPC.
They are further facing trial on the allegations of the prosecution that on the above mentioned date, time and place, accused Abdul Qadir @ Adil used a deadly weapon i.e. a knife and accused Kanshi Ram used a deadly weapon i.e. a country made pistol while committing the aforesaid robbery and both of them thereby committed an offence punishable U/S 397 IPC.
The above said charge was framed against both the accused persons by Ld. Predecessor of this court on 10.12.2008 to which they pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
5. The prosecution in support of its case has examined total 28 witnesses and thereafter the prosecution evidence was closed.
6. The statement of both the accused persons was recorded U/S 313 CrPC in which they denied all the material incriminating circumstances appearing in the prosecution evidence on record against them and stated that they have been falsely implicated in this case. They further stated that no such alleged incident had ever taken place, they were lifted from their house, were wrongfully confined in the police station and later on were falsely S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 10 of 61 implicated in this case by the police after obtaining their signatures and thumb impressions forcibly on some blank papers and printed proformas . Both the accused persons preferred not to lead defence evidence in support of their case.
7. I have heard the final arguments and perused the record. The final arguments shall be referred to and discussed in detail at different appropriate paragraphs in the judgment.
8. As mentioned above, the prosecution in support of its case has examined total 28 witnesses.
PW1 Sh. Dhirender is a formal witness. He identified the dead body of his elder brother i.e. deceased Yogesh Kumar on 08.03.2008 at BJRM Mortuary vide identification memo Ex. PW 1/A. After postmortem, he along with his brother i.e. PW2 Joginder Singh received the dead body of the deceased vide memo Ex. PW 1/B. PW2 Sh. Joginder Singh is also a formal witness being the brother of the deceased who identified the dead body of the deceased on 08.03.2008 at BJRM Hospital Mortuary vide identification memo Ex. PW 2/A. PW3 Sh. Ajay Kanwar Singh is a material witness for S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 11 of 61 the prosecution being the complainant of the case and the employer of the deceased. He was working as a transporter and running his transport company in the name and style of Haryana Nepal Roadlines at AW441, Sanjay Gandhi Transport Nagar, Delhi. He deposed that in his complaint, the deceased was working as a Munshi for about 2 ½ years prior to the present incident. He deposed that on 07.03.2008, the deceased had gone to Naya Bazar and Azad Pur Subzi Mandi at about 12 noon for collecting cartridges of the vehicle and on that day at about 7 p.m., he received a telephonic call from mobile phone No. 9313701182 of deceased Yogesh through which Yogesh informed him that he was coming to the office as he had collected the cartridges of trucks from 45 firms/ clients from Naya Bazar and Azad Pur Subzi Mandi. He deposed that on that day at about 8 p.m. he had received a telephonic call from police that there was a dead body lying at Azad Pur Mandi, one visiting card of his company was recovered from the said dead body and he was called for the identification of the said dead body. PW3 deposed that he went at the spot and identified the dead body of his Munish Yogesh Kumar. He S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 12 of 61 deposed that on the day of incident, deceased was carrying one green color chained bag which was containing the documents of his company, bilties, cash amount collected from the clients and the cell phone was also found missing. He further deposed that some one had committed the murder of Yogesh and had robbed the said articles. The statement of PW3 as recorded by the police on which case FIR was registered has been proved as Ex. PW 3/A. On 29.05.2008, PW3 identified the recovered green bag of deceased Yogesh during judicial TIP proceedings. He deposed that on 17.07.2008 he again joined the investigation of the case with the IO and gave the details of amount collected by the deceased on 07.03.2008 . He deposed that as per his verification from different clients/ firms, he came to know that on the date of incident, deceased Yogesh had collected a sum of Rs. 24,800/ from shop No. 2644, Sharda Enterprises, Naya Bazar for truck No. HR 38M 4654, from shop No. D1298, Azad Pur Subzi Mandi, the deceased had received a sum of Rs. 21,850/ for truck No. HR 55G4807 and from the shop No. A 1171 NS Mandi, Azad Pur, the deceased had received a sum of Rs.6,000/ for truck No. HR55 E 7692 i.e. the deceased had S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 13 of 61 collected a sum of Rs. 52,650/ in total from above said firms. He further deposed that on the date of incident, deceased had informed him at about 7 p.m. that he had collected the above said amount which was kept in the said green color chained bag and he was coming towards the office. The said green color chained bag has been proved as Ex. P1. In crossexamination, PW3 inter alia deposed that he later on became aware about the things that were being carried by deceased when he left the office on 07.03.2008. PW3 did not remember whether he had told to the police about any mark of identification or specific description about green color bag in his statement recorded by the police. PW3 deposed that he had not taken any acknowledgment in writing from the shops from where the deceased had collected the amount on 07.03.2008. PW3 could not say whether the said type of bag ( Ex. P1) is available in the market or not.
PW4 Sh. Puran Chand is a formal witness who deposed that he was having a shop No. D1298, New Subzi Mandi, Azad Pur, Delhi and that on 07.03.2008 a truck of Haryana Nepal Roadlines brought tomatoes to his above shop S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 14 of 61 and probably the number of the truck was 4807. He deposed that Yogesh Kumar, clerk of the above said roadlines came and collected Rs. 21,850/ as fare of the truck which was paid by him at about 6.30 p.m. on 07.03.2008 itself. In crossexamination, PW4 inter alia deposed that he had not given any documentary proof to the police official regarding the handing over of Rs. 21,850/ to the deceased Yogesh Kumar .
PW5 Sh. Prem Singh is also a formal witness, who deposed that he was working as a clerk in shop No. A1171, N S Mandi, Azad Pur, Delhi and that they had received 255 gunny bags of ginger, which was sent by Haryana Nepal Roadlines through truck No. HR55 E 7692. He deposed that on 07.03.2008 he had paid a sum of Rs. 6,000/ to Sh. Yogesh ( since deceased) i.e. a clerk of HaryanaNepal Roadlines and upon receiving the amount the deceased had left his shop. In crossexamination, PW5 inter alia deposed that he had not given any documentary proof to the police official regarding the handing over of Rs. 6,000/ to the deceased Yogesh Kumar .
PW6 Ct. Jenesh Kumar is only a formal witness, who delivered the copies of FIR to the residences of senior police S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 15 of 61 officials and the Ld. Area MM.
PW7 HC Jagat Singh was posted as a Duty Officer at P S Adarsh Nagar on 07.03.2008 and on that day at about 7.30 p.m., he received a message from PCR which was reduced into writing vide DD No. 34 A ( EX. PW 7/A) and its copy was handed over to ASI Paramjeet Singh. He deposed that on 07.03.2008 at about 10.25 p.m., he received a rukka through PW12 Ct. Jai Bhagwan sent by PW21 Inspector Sanjay Drall for registration of the case and registered the case FIR EX. PW 7/B. PW7 also made endorsement on the rukka vide DD No. 40A which has been proved as Ex. PW 7/C. The copy of FIR and original rukka were handed over to PW12 for handing over the same to PW21 for further investigation.
PW8 Sh. Dalbir Singh was also working as a transporter and was running an office at Sanjay Gandhi Transport Nagar in the name and style of Haryana Nepal Roadlines. . He deposed that the deceased was employed in his office as a clerk ( Munshi). He deposed that on 07.03.2008 he had sent the deceased to collect the cartridge money of trucks from Naya Bazar and N. S. Mandi and at about 6..30 p.m.he had S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 16 of 61 made a telephonic call from his mobile No. 9968335799 to the deceased on his mobile phone No. 9313701182 which was given to him and was in the name of one Vijay. He deposed that the deceased informed him that he had collected a sum of Rs. 24,800/ from one Krishan of Sharda Enterprises of Naya Bazar in connection with truck No. HR 38 M4654, he had collected a sum of Rs. 6,000/ from shop of Dhirender Prakash & Co. at N.S. Mandi, Azad Pur in connection with truck No. HR 55 E 7692 and had also collected a sum of Rs. 21,850/ from shop No. D1298, N.S. Mandi, Azad Pur in connection with truck No. HR55 G 4807 i.e. he had collected almost Rs. 52,650/. He deposed that deceased also informed him that he had kept the said amount in his bag and had left the N.S. Mandi for their office . He further deposed that after some time, Vijay made a telephonic call from his mobile to deceased Yogesh but the said call was attended by some one else and was disconnected.
PW9 Dr. Kulbhushan Goel was posted as CMO,
BJRM Hospital, Jahangir Puri, Delhi and on 08.03.2008
conducted the postmortem of the dead body of deceased Yogesh Kumar aged about 45 years male which was sent by S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 17 of 61 PW21. He deposed that the blood stains were present on the clothes of the deceased. He deposed that on external examination there was one cut throat injury placed transversely over front of neck of length about 18 cms. with wound gapping about 4.5 cms extending from right lateral side of neck about 9 cms below and 4 cms behind right ear up to left side neck about 5.5 cms from midline front of neck and about 7 cms below chin and that small tailing was seen at the left end of the wound. He deposed that no other external injury was seen on the body. He deposed that on internal examination, the soft tissues, vessels of right side neck under the cut throat injury were cleanly cut, main vessels were completely severed on the right side with clots inside the tissues and rest of the neck structures were intact. He deposed that as per his opinion, the cause of death was hemorrhagic shock consequent upon injuries to neck vessels as a result of cut throat injury which was sufficient to cause death in the ordinary course of nature, cut throat injury was antemortem in nature caused by sharp cutting edged weapon and the time since death was about 18 hours. The postmortem report has been proved as Ex. PW 9/A bearing his S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 18 of 61 signatures at point A. He deposed that on 07.06.2008, he received an application for further opinion along with one sealed packet sealed with the seal of RCS and on opening the packet it was found to contain one kitchen knife wrapped in white paper. He deposed that the detailed description of the knife and its rough sketch were prepared by him and he opined that the cut throat injury mentioned in the postmortem report Ex. PW 9/A was possible by the said weapon or similar such type of other weapon. The subsequent opinion, sketch of knife and measurements are Ex. PW 9/B. In crossexamination, PW9 inter alia deposed that as per report, he had not mentioned the exact thickness of the blade of the knife but certainly one of the edges was sharp and other one was blunt.
PW10 HC Partap Vikarm is a formal witness who was working as Duty Officer in the intervening night of 7/8032008 at P S Adarsh Nagar and deposed that at about 2.45 a.m. PW6 came at P.S. after delivering the copies of FIR to Ld. Area MM and senior police officers on official motorcycle. PW10 recorded his arrival entry vide DD No. 44A which is Ex. PW10/A. PW11 Sh. Sanjeev Lakra was the Alternate Nodal S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 19 of 61 Officer, Reliance Communications and was working there since December, 2002. He deposed that he was deputed to prove the call details of mobile No. 9313701182 as it was the number of Reliance company. He deposed that on 07.03.2008 there were two incoming calls on the above said mobile number from the mobile phone No. 9968335799 at about 6:52:47 p.m. and 6:57:42 p.m. He also brought the summoned record i.e. CDRs of mobile phone 9313701182. He sought to prove the CDRs i.e. computer generated copy of call details of said mobile phone as Ex. PW 11/A, however, it is evident that the said CDRs shall be deemed not to have been proved because it is an electronic evidence and the mandatory certificate as required U/S 65 B (4) of The Indian Evidence Act, 1872 has not been proved on record in this regard by PW11. In these circumstances the document Ex. PW 11/A is deexhibited and it shall be deemed not to have been proved in this case. He deposed in his cross examination that the subscriber/ owner of the said mobile phone as per record was Vijay Kumar S/O Sh.Sukh Lal and from the record it could not be ascertained who was the end user of the said phone at the relevant date and time.
S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 20 of 61 PW12 Ct. Jai Bhagwan deposed to the effect that on 07.03.2008 he during the course of investigation, vide DD No. 38A left for the spot along with PW21 Inspector Sanjay Drall and reached the place of incident at 8.10 p.m. He deposed that at the spot they found the dead body of deceased Yogesh which was smeared in the blood and the neck of the dead body was cut. PW12 took the rukka prepared by PW21 to the police station for getting the case registered, he reached police station at about 10.25 p.m., got the case FIR registered and immediately rushed back to the spot along with computerized copy of FIR and rukka. He deposed that he reached at the spot at 11.25 p.m. and handed over the same to PW21.
PW13 HC Mahinder was posted as a Ct. photographer with the crime team (N/W District). He deposed that on 07. 03.2008, at the request of PW21, he along with SI Matadeen Meena reached the place of occurrence at about 9.15 p.m. where PW21 along with his staff were present and he found the dead body of an unknown male having neck cut lying there. PW 13 took the photographs of place of occurrence and dead body from different angles. The negatives are Ex. PW13/A1 to Ex. S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 21 of 61 PW13/A7 and the photographs are Ex. PW 13/A8 to Ex. PW 13/A13. He deposed that they remained at the spot till 10 p.m. PW14 Ct. Om Prakash deposed that on 23.06.2008, MHC(M) handed him 8 parcels out of which 4 parcels were sealed with the seal of SKD, one parcel was sealed with the seal of RCS and the remaining 3 parcels were sealed with the seal of KG MORTUARY BJRM. He took the same to FSL Rohini vide RC No. 48/21/08 ( Ex. PW14/A), deposited the same there and handed over the acknowledgment receipt ( Ex. PW 14/B) to MHC(M).
PW15 Ct. Prabhu Sah accompanied ASI Paramjeet Singh(PW23) to the spot after receipt of DD No. 34 A ( Ex. PW 7/A) on 07.03.2008 where they found the dead body of the deceased . He deposed that the dead body was removed by him to BJRM Hospital. He interalia deposed that after postmortem, the doctor handed over 8 parcels duly sealed with the seal of KG BJRM HOSPITAL and sample seal, he put 6 parcels in one polythene bag and handed over the said polythene bag along with other parcels to the IO who took the same into possession vide seizure memo Ex. PW 15/A. S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 22 of 61 PW16 HC Ashok Kumar joined the investigation with IO Inspector Ram Chander ( PW28). His testimony shall be discussed along with the testimony of PW28.
PW17 SI Mahesh Kumar was posted as a Draftsman in crime branch. On 17.07.2008 he inspected the spot and took rough notes and measurements at the spot, on the basis of which he prepared the scaled site plan Ex. PW 17/A and handed over the same to SHO.
PW18 HC Mukesh Kumar was posted as MHC(M) at P S Adarsh Nagar. He has deposed regarding the depositing and taking away of pullandas from the malkhana during investigation of the present case and the relevant entries in this regard in his register No. 19 which have been proved as Ex. PW 18/A to Ex. PW 18/H and Ex. PW 18/J to Ex. PW 18/O. The copy of RC No. 48/21/08 is Ex. PW 18/P. He deposed that Ct. Om Prakash had handed over the acknowledgment receipt regarding deposit of the parcels in FSL Rohini on 23.06.2008 and its copy is Ex. PW 18/Q. He deposed that as long as the exhibits remained in his possession, he did not tamper with them and they remained intact.
S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 23 of 61
PW19 HC Ramesh Chander deposed that on
20.04.2008 he joined the investigation of FIR No. 97/08 P S Adarsh Nagar U/S 307/392/394/397/452/ 411/34 IPC and Section 25 of Arms Act, 1959 with ASI Mahavir Singh. He deposed that ASI Mahavir Singh had arrested accused Kanshi Ram from Sarai Peepal Thala near Peer Baba Mazar vide arrest memo Ex. PW 19/A and his disclosure statement is Ex. PW 19/B. He deposed that in the said disclosure statement, accused Kanshi Ram disclosed about his and his associate's involvement in the present case and thereafter ASI Mahavir Singh handed over the copy of disclosure statement to IO of the present case i.e. PW28 Inspector Ramesh Chander. He deposed that thereafter PW28 had also taken the custody of accused Kanshi Ram from ASI Mahavir Singh. The arrest memo of accused Kanshi Ram in the present case has been proved as Ex. PW 19/C. He deposed that on 22.04.2008 he again joined the investigation with PW28 during which accused Kanshi Ram made a disclosure statement Ex. PW 16/A. The pointing out of place of occurrence at the instance of accused Kanshi Ram is Ex. PW 16/B. He deposed that on 23.04.2008 he again joined S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 24 of 61 the investigation of the present case with PW28/ IO along with PW16 HC Ashok Kumar and PW20 HC Ved Prakash. He deposed that accused Kanshi Ram led them at H1/ 492, Jahangir Puri, Delhi at the house of his brother and from there the said accused got recovered documents i.e. one blood stained lorry challan, one blood stained lorry arrival report, one blood stained diary containing 12 pages, 11 visiting cards and 4 slips on which some phone numbers and names were written from scrap. He deposed that the above mentioned documents were sealed in an envelope with the seal of RCS and the same were taken into possession vide seizure memo Ex. PW 19/D. The said documents are Ex. P3 collectively. PW19 also correctly identified the accused Kanshi Ram in the court.
PW20 HC Ved Prakash is a witness qua arrest of accused Kanshi Ram in FIR No.97/08 P S Adarsh Nagar and making of the disclosure statement by the accused in that case disclosing his involvement in the present case. He is also a witness regarding recovery of blood stained documents ( Ex. P 3 collectively) at the instance of accused Kanshi Ram from his house which were taken into possession vide seizure memo Ex. S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 25 of 61 PW 19/D. PW21 Inspector Sanjay Drall is the first IO of the case. He after receiving the information vide DD No. 34 A dated 07.03.2008 P.S. Adarsh Nagar left for the spot with PW 12 Ct. Jai Bhagwan vide DD No. 38A ( Ex.PW 21/A) . On reaching the spot, they found the dead body of the deceased with throat found slit and blood in large quantity lying near the dead body. PW21 deposed that from the pocket of wearing pants of dead body, one visiting card was found upon which various telephone numbers were printed and he rang one of those numbers which was responded by PW3/ complainant who reached the spot and disclosed the name of deceased as Yogesh Kumar and told that the deceased was his employee. The statement of PW3 as recorded by PW21 upon which the case FIR was registered has been proved as Ex. PW 3/A. The rukka has been proved as Ex. PW 21/B. PW21 deposed that blood from two places, earth control and blood stained earth control were lifted by him which were put in four separate small plastic containers which were sealed with the seal of SKD and were taken into possession vide memo Ex. PW 21/C. The S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 26 of 61 visiting card recovered from the pocket of the deceased has been proved as Ex. PX and its seizure memo has been proved as Ex. PW 21/D. PW21 deposed that he prepared site plan at the instance of PW3 which has been proved as Ex. PW 21/E. The inquest papers prepared by PW21 have been proved as Ex. PW 21/F. He has deposed that the further investigation was assigned to SHO Inspector Ram Chander Sangwan ( PW28) and he handed over the case file to him.
PW22 HC Sanjay Malik has deposed that on 12.04.2008 accused Abdul Qadir was arrested by PW26 Inspector Sudesh Ranga in FIR No. 97/08 P.S. Adarsh Nagar from near his jhuggi at Barola Village vide arrest memo Ex. PW 22/A. PW23 ASI Paramjeet Singh has deposed to the effect that on 07.03.2008 he received DD No. 34 A ( Ex. PW 7/A) through PW15 and after receiving the same he along with PW15 went to the spot, where they found the dead body of a male person lying there with a cut on its neck and blood was also found scattered there in huge quantity. Thereafter, PW23 gave information to the PS from where PW21 along with the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 27 of 61 staff reached at the spot. The memos Ex. PW 21/C and Ex. PW 1/D bears the signatures of PW23 as a witness.
PW24 SI Ram Kanwar joined the investigation with PW16 and PW28. His testimony shall be discussed along with the testimony of PW28.
PW25 Sh.Rajesh Kumar Goel was posted as Ld. ACMM 02 , Dwarka Courts, Delhi on the date of his testimony. He has proved the judicial TIP proceedings of case property i.e. a green color bag vide which PW3 correctly identified the same. The TIP proceedings dated 29.05.2008 have been proved as Ex. PW 25/C. PW26 Inspector Sudesh Ranga has deposed that he was the IO of FIR No. 97/08, P S Adarsh Nagar in which accused Abdul Qadir was under police custody on 24.04.2008 and during the investigation made a disclosure statement ( Ex. PW 26/A) regarding his involvement in the present case. He deposed that the said accused was arrested by him in that case on 12.04.2008 and on that day also he made a disclosure statement Ex. PW 26/B. He deposed that he informed PW28 i.e. IO of the present case in that regard and handed over the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 28 of 61 copy of the said disclosure statements to him.
PW27 Ms. Anita Chhari is Senior Scientific Assistant (Biology), FSL Rohini, Delhi. She has proved her reports dated 24.11.08 as Ex. PW 27/A and Ex.PW 27/B. It is pertinent to note that as per Ex. PW 27/A, blood could not be detected on the knife ( Ex. P2).
PW28 Inspector ( retd.) Ram Chander is the second IO of the case. He has deposed to the effect that on 08.03.2008 he was posted as SHO P S Adarsh Nagar and on that day, the investigation of the present case was assigned to him by the Senior Officers and he obtained the file from PW21. He deposed that on 12.04.2008 accused Abdul Qadir was arrested vide arrest memo Ex. PW 22/A in case FIR No. 97/08, P S Adarsh Nagar and he made a disclosure statement ( Ex. PW 26/B) regarding involvement in the present case. He deposed that on 20.04.2008 accused Kanshi Ram was also arrested by ASI Mahavir Singh in the said case vide arrest memo Ex. PW 19/A and he also disclosed about his involvement in the present case vide disclosure statement Ex. PW 19/B1. He deposed that thereafter on 20.04.2008 itself the accused S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 29 of 61 Kanshi Ram was arrested by him in the present case vide arrest memo Ex. PW 19/C and during police remand he made a disclosure statement Ex. PW 16/A to the effect that the katta which was used in the present case had already been recovered in above said FIR No. 97/08, copy of seizure memo of said country made pistol/ katta is Ex. PW 19/B and the sketch of desi katta and live round (cartridge ) is Ex. PW 28/A. The pointing out memo at the instance of accused Kanshi Ram of place of occurrence as prepared by PW28 has been proved as Ex. PW 16/B and its site plan is Ex. PW 16/C. He deposed that on 23.04.2008, accused Kanshi Ram led the police party to house No. H1/492, first floor, Jahangir Puri, Delhi and from there he got recovered some blood stained documents (Ex. P3 collectively) which were seized vide memo Ex. PW19/D. The arrest memo of accused Abdul Qadir @ Adil in the present case is Ex. PW 16/D and his disclosure statement in the present case is Ex. PW 16/E. PW28 deposed that accused Abdul Qadir led the police party to the spot and pointed out the place of occurrence vide memo Ex.PW 16/F and the site plan of place of occurrence at the instance of said accused is Ex. PW 16/G. S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 30 of 61 PW28 deposed that on 24.04.2008 ( in the intervening night of 24/25042008), during the police custody remand, the accused Abdul Qadir led the police party, consisting of police officials ( including PW28, PW24 and PW16) to his jhuggi at second floor at Sarai Peepal Thala, Azad Pur Mandi, Delhi where inside the room one kanastar of flour was kept along side the wall on wooden plank and from under the said wooden plank, the accused took out one small knife having blood stains and produced the same . The sketch of the said knife ( Ex. P2) is Ex. PW 16/G and its seizure memo is Ex. PW 16/H . PW28 further deposed that thereafter the accused Abdul Qadir took out one bag of green color ( Ex. P1) from under a bichhona and produced it before him which was seized vide memo Ex. PW 16/J. The application moved for seeking subsequent opinion of the doctor regarding the weapon of offence has been proved as Ex. PW 28/C. He deposed that during the course of investigation, he tried to search for accused Shobhnath but he could not be traced and he took NBWs as well as proceedings U/S 82 & 83 CrPC against him. The crime team report has been proved as Ex. PW 28/F. He deposed that during the course of S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 31 of 61 investigation, he had asked complainant to furnish details of documents as well as cash in bag and details of the places visited by the deceased. The information furnished by complainant/ PW3 in this regard has been proved as Ex. PW 28/G1 to Ex. PW 28/G3. The copy of FIR No. 97/08, P S Adarsh Nagar is Mark PW 28/1. In crossexamination, PW28 admitted that the distance between place of incident and place of recovery of body was about 600 meters and again stated that it was about 200300 meters. He further admitted that both the places i.e. the place of incident and place of recovery of dead body were heavily crowded places and there was no trail of blood around the dead body. He admitted that he had not obtained the worn clothes of accused persons in the present case. He admitted that jhuggi Sarai Peepal Thala, Azad Pur Mandi is a very thickly populated area. He deposed that he did not join any person from the neighborhood in the investigation at jhuggi of accused Abdul Qadir on 24.04.2008. He further deposed that the knife recovered by him was having blood stains on it and he had not lifted any chance print from the seized knife.
S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 32 of 61
9. The identity of the deceased Yogesh Kumar is not disputed.
The identity has further been proved by PW1 and PW2 i.e. the brothers of the deceased vide identification memos Ex.PW 1/A and Ex. PW 2/A respectively. The same has also been proved by PW3/ complainant, who was also the employer of the deceased. The date of death of the deceased i.e. 07.03.2008 is also not in dispute and it further stands proved by postmortem report Ex. PW 9/A which shows that the postmortem was conducted on 08.03.2008 at about 1 p.m. with time since death mentioned as about 18 hours i.e. 07.03.2008 at about 7 p.m. The place of recovery of dead body of the deceased i.e. service road, Bank Complex, N S Mandi, Azad Pur, Delhi has been proved by PW12, PW13, PW15, PW23 etc. The cause of death has been proved by PW9 as hemorrhagic shock consequent upon injuries to neck vessels as a result of cut throat injury which was antemortem in nature caused by sharp cutting edged weapon and the said injury was sufficient to cause death in the ordinary course of nature. The postmortem report in this regard has been proved as Ex. PW 9/A. It is an admitted fact and the facts of the case also show that the present case is S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 33 of 61 not based on the ocular version of any eye witness but is based on circumstantial evidence. It is proposed to deal with one circumstance after the other to see whether the prosecution has proved its case beyond reasonable doubt or not. Indisputably, there is no eye witness to the occurrence. In catena of judgments , the law regarding circumstantial evidence has been settled by the Hon'ble Supreme Court of India . The Hon'ble Supreme Court of India in case titled as Ramreddy Rajeshkhanna Reddy Vs. State of Andhra Pradesh AIR 2006 SC 1656 has held as follows:
" 20. It is now well - settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis . It is also well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 34 of 61 only on the basis of the circumstantial evidence. [ See Anil Kumar Singh Vs. State of Bihar : (2003) 9 SCC 67 and Reddy Sampath Kumar Vs. State of A.P. MANU/ SC/0559/2005: 2005 Cri LJ 4131]"
In the case titled as Vithal Tukaram More Vs. State of Maharashtra 2002 (3) R.C.R. (Criminal) 629: 2002 (3) Crimes 29, Hon'ble Supreme Court of India while referring to its another judgment in State of U.P. Vs. Dr. Ravindra Prakash Mittal 1992 (2) RCR (Crl. ) 25 (SC): AIR 1992 SC 2045 held as follows:
" 12. In the case of State of U.P. Vs. Dr. Ravindra Prakash Mittal, 1992 (2) RCR (Crl. ) 25 (SC): AIR 1992 SC 2045, this court had held that the essential ingredients to prove the guilt of an accused by circumstantial evidence are : (a) the circumstances from which the conclusion is drawn should be fully proved; (b) the circumstances should be conclusive in nature ; (c ) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence ; (d) the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 35 of 61 circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused.
10. It is proposed to deal with one circumstance after the other to see whether the prosecution has proved its case beyond reasonable doubt or not.
11. The first circumstance as argued on behalf of the prosecution and the defence was the alleged recovery of one green color bag Ex. P1, which the deceased was allegedly carrying at the time of his murder, at the instance of accused Abdul Qadir @Adil on 25.04.2008 from his jhuggi, which was seized vide Ex. PW 16/J. Ld. Addl. P P for State argued that PW3 ( complainant), PW16, PW24 and PW28 have correctly identified and proved the said bag as Ex. P1. He further argued that PW3 i.e. the employer of the deceased also correctly identified the said bag on 29.05.2008 in judicial TIP proceedings Ex. PW 25/C. He argued that PW3 has deposed that on the day of incident, the deceased was carrying the said bag which was containing the documents of his company, bilties, cash amount collected from S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 36 of 61 the clients etc. He further argued that PW3 has deposed in his crossexamination that he was having knowledge that the deceased had taken the said bag with him as the same was supplied by them to all their employees. He further argued that the said bag was recovered on 25.04.2008 at the instance of accused Abdul Qadir @ Adil from the third floor of his jhuggi at Sarai Peepal Thala under a bichhona which was seized vide seizure memo Ex. PW 16/J. He submitted that Ex. PW 16/J was prepared by the IO/ PW28 and was witnessed by police officials PW16 and PW24 . He argued that the discovery of this fact is very material against the accused persons. He further argued that the said circumstance has been conclusively proved which is consistent with the hypothesis of the guilt of the accused persons as the said bag Ex. P1 of the deceased was found at the instance of accused Abdul Qadir @ Adil from his jhuggi and the deceased was in possession of the said bag at the time of his murder in which he was carrying the documents, bilties, cash etc. Per contra, Ld. Amicus Curiae for accused persons argued that PW3 has deposed in his crossexamination that S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 37 of 61 he became aware later on about the things that were being carried by deceased when he left the office on 07.03.2008 i.e. it was not in the personal knowledge of PW3 that the deceased was carrying the said bag on the date of the incident as PW3 himself did not see the deceased carrying the said bag. In this context he further argued that PW3 did not remember whether on 07.03.2008 he was present in his office when the deceased left his office for field work. He argued that PW3 did not remember whether he had told the police about any mark of identification or any specific description about the said bag in his statement recorded by the police on 07.03.2008. He argued that PW3 could not say whether said type of bag was available in the market or not. He further argued that it is not the case of the prosecution and it has also not been mentioned in seizure memo of the bag Ex. PW 16/J that it had any blood stains on it. He submitted that the said bag as per FSL reports Ex. PW 27/A and Ex. PW 27/B was also not sent for FSL examination. He argued that as per the case of prosecution the documents ( Ex. P3 collectively) which were allegedly recovered at the instance of accused Kanshi Ram were blood stained and had human S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 38 of 61 blood with A group on them. He argued that PW3 has deposed that the said documents were carried by deceased in the said bag and, therefore, if the documents were blood stained then the bag Ex. P1 which was used to carry the said documents should also have been blood stained. He thus argued that the story of the prosecution regarding the fact that any such bag was being carried by deceased at the time of his murder has only been fabricated to falsely implicate the accused persons by showing its recovery at the instance of accused Abdul Qadir @ Adil. He further argued that PW16 who has been shown as a witness to seizure memo Ex. PW 16/J has specifically admitted in his crossexamination that such type of bags were easily available in the market. He further argued that PW24 who has been shown as a witness to seizure memo Ex. PW 16/J has specifically admitted in his crossexamination that such type of bags were easily available in the market. He further referred to the testimonies of PW16, PW24 and PW28/IO and argued that the IO failed to join any person from the neighborhood in the investigation during the said recovery, even so, PW28 has admitted that it was a very thickly populated area. He argued S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 39 of 61 that the IO has specifically deposed that it was a thickly populated area and he did not join the persons from the ground floor and the first floor of the jhuggi in investigation. He argued that in these circumstances even the said alleged recovery becomes doubtful. In the alternative, it was further argued by the Ld. Defence counsel that even if the said circumstance is considered as fully proved even then it is not conclusive in nature as it would not be consistent only with the hypothesis of the guilt of the accused persons and inconsistent with their innocence.
As discussed above, as per the case of the prosecution, the deceased Yogesh Kumar was carrying the said green color bag Ex. P1 in which he was carrying the documents of his company, bilties, cash amount etc. at the time of his murder on 07.03.2008 and the said bag was eventually recovered at the instance of accused Abdul Qadir @Adil on 25.04.2008 from his above said jhuggi vide memo Ex. PW 16/J. PW3, PW16, PW24 and PW28 have identified the said bag in their testimony in the court and PW3 has also identified the said bag on 29.05.2008 in judicial TIP proceedings Ex. PW S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 40 of 61 25/C. PW3 has deposed in his crossexamination that he was having the knowledge that the deceased had taken green bag with him as the same was supplied by them to all their employees. The testimony of PW3 in this regard, however, becomes doubtful as PW3 has deposed in his cross examination that he did not remember whether on 07.03.2008 he was present in his office when the deceased left his office for field work and he only became aware later on about the things that were being carried by deceased Yogesh Kumar when he had left the office on 07.03.2008. In this regard neither PW3 nor the prosecution has proved on record any document to show that any such bag was actually supplied or issued by PW3 or his company to deceased Yogesh Kumar. Further, it is not the case of the prosecution that the said bag was having any mark of identification or any specific description. In this context, PW3 has specifically deposed in this crossexamination that he did not remember whether he had told to the police about any mark of identification or specific description about the said bag in his statement recorded by the police on 07.03.2008. Further, PW 16 and PW24 have specifically deposed in their cross S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 41 of 61 examination that such type of bags are easily available in the market whereas PW3 could not say whether said type of bag was available in the market or not. It is further pertinent to note that the seizure memo of the bag Ex. PW 16/J is totally silent regarding any blood stains whatsoever on the said bag. No prosecution witness has also deposed that the said bag was having any blood stains on it at the time of its recovery at the instance of accused Abdul Qadir @ Adil. The prosecution is also silent whether the said bag was sent for FSL examination or not and the FSL reports Ex. PW 27/A and Ex. PW 27/B are also silent regarding any such bag. In these circumstances it is clear that as per the case of prosecution the said bag Ex. P1 was not having any blood stains at the time of its recovery. In this context, PW3 has however, deposed that the deceased was containing the documents of their company bilties etc. in the said bag. PW8 i.e. another employee of the deceased has also deposed that on 07.03.2008 at about 6.30 p.m.he had made a telephonic call to the deceased and the deceased had informed him that he had kept the said amount collected from the clients of the company in his bag and he had left the N.S. Mandi for S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 42 of 61 their office. The prosecution has tried to prove the said documents, as were being allegedly carried by the deceased in his bag Ex. P1 at the time of said incident, as recovered from accused Kanshi Ram on 23.04.2008 from his jhuggi having been seized vide memo Ex.PW 19/D and the documents having been proved as Ex. P3 collectively. The said memo Ex. PW 19/D and the FSL report Ex. PW 27/B shows that human blood of A group was found on said documents while the said documents were examined using various serological techniques in the FSL. In these circumstances , the submissions of Ld. Amicus Curiae for accused persons has substance because if the documents which were contained in the bag Ex.P1 were having blood stains then the bag Ex. P1 should also have blood stains of human blood of A group. As discussed above, it is not even the case of the prosecution that Ex. P1 was having any blood on it. The recovery of any such bag Ex. P1 at the instance of accused Abdul Qadir @ Adil thus becomes inconsequential in proving the guilt of the accused persons.
It is further pertinent to note that PW3 has deposed that on 07.03.2008 at about 7 p.m. he received a telephonic call S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 43 of 61 from the mobile phone No. 9313701182 of deceased Yogesh Kumar and the deceased informed him that the deceased had collected the amount ( Rs.52,650/ from the clients of the company) and had kept the said amount in the said bag Ex. P
1. PW8 has also deposed that on 07.03.2008 at about 6.30 p.m. he had made a telephonic call from his mobile number 9968335799 to the mobile number 9313701182 of the deceased which was given to him and was in the name of one Vijay who was working with him as a transporter and the deceased had informed him that he had kept the said amount in his bag and had left the N.S. Mandi for their office. PW11 who was the alternate Nodal Officer Reliance Communications has sought to prove the call details of mobile No. 9313701182. As discussed above, the computer generated copies of call detail records of said mobile phone shall be deemed not to have been proved because it is an electronic evidence and the mandatory certificate as required U/S 65B (4) of The Indian Evidence Act, 1872 has not been proved on record in this regard either by PW11 or by the prosecution. In these circumstances the document Ex. PW 11/A (CDRs of said mobile phone) is de S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 44 of 61 exhibited and it shall be deemed not to have been proved in this case. Further, the prosecution has not been able to prove said mobile phone on record and has also not been able to prove that the said mobile phone was actually being used by the deceased as the subscriber of the said mobile number was admittedly Vijay Kumar S/O Sh. Sukh Lal (reference is made to crossexamination of PW11 and the testimony of PW8).
In view of the above said discussion, the prosecution has failed to fully prove the above said circumstance conclusively and beyond reasonable doubt.
12. The next circumstance sought to be established by the prosecution is regarding the recovery of weapon of offence i.e. a knife (Ex. P2) at the instance of the accused Abdul Qadir @ Adil.
Ld. Addl. P P for the State has argued that in the intervening night of 24/25.04.2008, the accused Abdul Qadir during his police custody remand led the police officials to his jhuggi at third floor at Sarai Peepal Thala, Azad Pur Mandi, Delhi, where inside the room, one Kanastar of flour was kept along side the wall on a wooden plank and from under the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 45 of 61 said wooden plank, the said accused took out one small knife having blood stains and produced the same before PW28. PW28 prepared the sketch of the knife which has been proved as Ex. PW 16/G ( also Ex. PW 16/G1) and that the total length of the knife along with wooden handle was 16.5 cms. He argued that the said knife( Ex. P2) was seized vide seizure memo Ex. PW 16/H and is the weapon of offence. He submitted that PW9 i.e. the doctor who conducted the postmortem of the dead body of the deceased also gave a subsequent opinion Ex. PW 9/B opining that the cut throat injury as mentioned in the postmortem report Ex. PW 9/A was possible by knife Ex. P2 or similar such type of other weapon.
Ld. Amicus Curiae for the accused persons on the other hand has argued that the said knife was falsely planted upon the accused Abdul Qadir @ Adil . He argued that no public person from the neighborhood was joined by the IO during such proceedings although the said area was a thickly populated area and that the IO/PW28 has admitted that he could not join persons from the ground floor and the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 46 of 61 first floor of the jhuggi during investigation. He further argued that PW28 has admitted that he had not lifted any chance print from the seized knife. He further referred to the FSL report Ex. PW 27/A and argued that blood could not be detected on the knife by the FSL. He argued that the prosecution has failed to prove beyond reasonable doubt that the said knife was actually a weapon of offence and a great doubt also arises over the alleged recovery itself as no public person despite their availability was joined during the investigation.
As per the case of prosecution, the above said knife Ex. P2 was got recovered by accused Abdul Qadir @ Adil from his jhuggi at above mentioned place in the intervening night of 24/25.04.2008, which was seized vide memo Ex. PW 16/H. It is evident from Ex. PW 16/H that no public witness has been joined by the investigating agency during the said recovery and seizure. PW28/IO has deposed in his crossexamination that jhuggi Sarai Peepal Thala, Azad Pur Mandi is a very thickly populated area, however, he did not join any person from the neighborhood in S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 47 of 61 the investigation at the jhuggi. He further deposed that he did not join the persons from the ground floor and the first floor of the jhuggi in investigation . PW16 has also deposed in his crossexamination to the effect that IO had not called any public person of the locality to join the proceedings at the jhuggi of the accused Abdul Qadir @ Adil. He admitted that the public persons had collected when they went to the jhuggi of accused Abdul Qadir. PW24 to the contrary has deposed in his crossexamination that the IO had called the neighbors from the ground floor as well as from the first floor when they reached there to join the proceedings but none came to join the proceedings. It shows that despite the alleged place of recovery being situated in a thickly populated area and the availability of public persons, the IO did not care to join any public person during the said search and seizure. A strong doubt thus arises over the said alleged recovery of knife Ex. P2 from the above said jhuggi of the accused Abdul Qadir @ Adil.
PW9 has given a subsequent opinion vide Ex. PW 9/B that the cut throat injury mentioned in the postmortem S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 48 of 61 report Ex. PW 9/A was possible by the said weapon( Ex. P
2) or similar such type of other weapon. PW28/IO in his crossexamination has deposed that the knife recovered by him was having dry blood stains on it and that he had not lifted any chance print from the seized knife. The MLC report Ex. PW 27/A, however, shows that the blood could not be detected on the said knife. In these circumstances also, the prosecution has failed to prove beyond reasonable doubt that Ex. P2 was in fact the weapon of offence qua this case. Needless to mention that as discussed above, the recovery of above said knife Ex. P2 itself from the jhuggi of the accused Abdul Qadir @ Adil at his instance is also doubtful. In view of the above said discussion, the prosecution has failed to fully and conclusively prove the above said circumstance against the accused persons. In these circumstances, the subsequent opinion given by PW9 i.e. Ex. PW 9/B pales into insignificance.
13. The next circumstance sought to be established by the prosecution is regarding the recovery of some blood stained documents Ex. P3 collectively at the instance of accused S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 49 of 61 Kanshi Ram on 23.04.2008 from his house No. H1/492, Jahangir Puri, Delhi vide seizure memo Ex. PW 19/D. Ld. Addl. P P for the State has argued that on 23.04.2008 blood stained documents were recovered at the instance of accused Kanshi Ram from his house which were seized vide Ex. PW 19/D. He further argued that the FSL report Ex. PW 27/B shows that the said documents Ex. P3 (colly) had human blood of A group and the deceased also had blood of A group. He contended that the prosecution has been able to conclusively establish the said circumstance against the accused persons.
On the other hand, Ld, Amicus Curiae for accused persons argued that there is contradiction in the testimony of PW19 and PW20 regarding the calling of independent public persons to join the investigation during the said alleged recovery, which throws a strong doubt on the alleged recovery itself. He further argued that the blood group cannot be conclusive to establish a circumstance and various persons can have same blood group i.e. blood of A group. He further argued that the prosecution/ investigating agency did not get done the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 50 of 61 blood grouping of the accused persons and even no DNA test was got conducted by the investigating agency. He thus contended that the said circumstance has not been fully proved and no conclusion can be drawn from it against the accused persons.
As per the case of prosecution and the testimony of PW 19, PW20 and PW28/ IO , the accused Kanshi Ram on 23.04.2008 got recovered some blood stained documents i.e. one lorry challan dated 05.03.2005 of Sham Privahan Ltd., one lorry arrival report dated 18.02.2008 of Sugam Privahan Ltd., one diary having 12 pages in it with names and telephone numbers written on it, one visiting card of DKP forwarding agency, four old visiting cards of HaryanaNepal Roadlines, 4 new visiting cards of Haryana Nepal Roadlines, one visiting card of Kochhar Carrying Company, one visiting card of Sunil Kumar Singh - advocate and four hand written slips having some names and phone numbers etc. from his house No. H 1/492, Jahangir Puri, Delhi. As per the case of prosecution, the said documents were wrapped in a white paper which was converted into a parcel that was sealed with the seal of RCS and S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 51 of 61 was taken into possession vide seizure memo Ex. PW 19/D. PW19 has deposed in his crossexamination that house No. H1/492, Jahangir Puri, Delhi is situated in a thickly populated residential area. He further deposed that IO had called the public persons from neighborhood before conducting the proceedings, however, the public persons had refused. He further submitted that the IO had neither issued any notice in writing to those public persons who were asked to join the proceedings nor took any action against them on their refusal to do the same. PW20 also admitted in his crossexamination that H.No. H1/492, Jahangir Puri, Delhi is situated in a residential area. He, however, deposed to the contrary of PW19 by deposing that the IO had not called two respectable persons of the locality before conducting the proceedings at the aforesaid address. The testimony of PW28/ IO is totally silent in this regard. It is thus evident that the police witnesses who are witnesses to Ex. PW 19/D have given contradictory deposition regarding the calling or not calling of the public persons from the locality before conducting the proceedings at the said address. It is evident from the seizure memo Ex. PW 19/D that no public S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 52 of 61 witness has been joined as a witness in it. In these circumstances, no reliance can be placed only upon the police witnesses and the recovery of the said blood stained documents ( Ex. P3 collectively) itself at the instance of accused Kanshi Ram becomes doubtful.
PW28 has deposed that during the course of the investigation, he had asked the complainant ( PW3) to furnish the details of documents as well as cash in bag and details of the places visited by deceased and in the reply , PW3 furnished the information which has been proved as Ex. PW 28/G1, Ex. PW28/G2 and Ex. PW 28/G3. It is, however, pertinent to note that the prosecution has failed to get identified the allegedly recovered documents i.e. Ex. PW 3( colly) from the employers of the deceased i.e. either from PW3 or from PW8. The said documents should have been put to PW3 or PW8 to prove that the said documents Ex. P3 ( colly) pertained to their company and were in fact with the deceased at the time of incident. Moreover, the documents Ex. PW 28/G1, Ex. PW28/G2 and Ex. PW 28/G3 bearing the signatures of PW3 at point X should have been proved on record by PW3 during his S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 53 of 61 testimony,however, surprisingly the said documents were never put to or proved by PW3 and on the other hand PW28/IO tried to prove the signatures of PW3 on the said documents at point X. In fact, the Ld. Amicus Curiae during the testimony of PW28 also objected to the mode of proof of said documents. The said documents Ex. PW 28/G1, Ex. PW28/G2 and Ex. PW 28/G3 could not have been proved by the IO as it has not been deposed that the said documents were written in his presence. Moreover, the IO has also not cared to prove any seizure memo or handing over memo of the said documents Further, PW3 was always present to prove the said documents. The said documents thus shall be deemed not to have been proved on record and are hereby deexhibited. It is a major lacuna in the case of prosecution.
Moreover, the FSL report Ex. PW 27/B shows that the said documents had human blood with A group and the clothes of the deceased also had human blood of A group, which shows that the deceased had blood of A group. It is, however, an admitted fact that various persons including accused persons could have blood group 'A'. It is also an admitted fact that no S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 54 of 61 DNA test was done to conclusively prove that the blood on documents Ex. P3 ( colly) was that of the deceased. It is very surprising as to why the investigating agency did not get conducted the DNA test which could have accurately proved the genesis of human blood on documents Ex. P3 ( colly). It is a material lacuna in the investigation of the case by the investigating agency . Further, the blood test of the accused persons could also have been conducted by the investigating agency to ascertain their blood groups as well. In these circumstances and discussion, the prosecution has failed to fully prove the above said circumstance against the accused persons and no conclusion can be drawn against the accused persons by way of above said recovery.
14. The last circumstance as argued on behalf of the prosecution and the defence was motive of commission of the offence.
In this regard, the Ld. Addl. P P for the State has argued that through the testimony of PW3, PW4, PW5 and PW8 the prosecution has proved the motive to commit the crime as robbery whereas the Ld. Amicus Curiae for accused persons S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 55 of 61 has argued that the prosecution has failed to prove any motive of robbery with the accused persons.
In view of the discussion during the course of the judgment on the circumstances regarding the recovery of the green color bag Ex. P1 and the blood stained documents Ex. P3 (colly) at the instance of accused Abdul Qadir @ Adil and Kanshi Ram respectively, the detailed discussion on this circumstance of motive of commission of the offence is not required and the earlier discussion should be read for this circumstance also. In view of the detailed discussion in paragraphs No.11 and 13 of the judgment regarding the circumstance of recovery of green bag Ex. P1 and recovery of blood stained documents Ex. P3 ( colly) respectively ( which have been decided against the prosecution), it can be safely held that the prosecution has failed to prove any motive of commission of the offence against the accused persons conclusively and beyond reasonable doubt. The prosecution has failed to prove on record any circumstance regarding motive of commission of the offence . It is a settled law that in cases based on circumstantial evidence, the prosecution has to prove motive and the absence of motive S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 56 of 61 becomes material in such cases. My views are substantiated by the judgment of Hon'ble Delhi High Court in case titled as Ashok Kumar Vs. State N.C.T. of Delhi 2012 (1) JCC 59 wherein it has interalia been held as under:
" 14. ........................................................ We further notice that the prosecution was unable to establish any motive in the crime . It has been held in some judgments that normally in circumstantial evidence based cases, the prosecution has to prove motive. The absence of motive becomes material in such cases ; correspondingly motive is not important in the case of direct or ocular evidence".
It also raises an adverse inference against the case of prosecution .
15. The settled law relating to circumstantial evidence has earlier been discussed in this judgment. Further, the Hon'ble Supreme Court of India in case titled as Earabhadrappa V. State of Karnatka AIR 1983 SC 446 (1) has held as under: "5. In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 57 of 61 established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence........"
16. As discussed above, the prosecution in the present case has failed to prove the circumstances conclusively against the accused persons. Prosecution thus has failed to prove conclusively the circumstances and the facts as established by the prosecution cannot be said to be consistent only with the hypothesis of the guilt of accused persons and inconsistent with their innocence. The circumstance as proved by the prosecution on record also does not exclude the possibility of guilt of any person other than the accused persons. There is nothing on record to show that accused Kanshi Ram used the katta i.e. a deadly weapon while committing the aforesaid robbery except his disclosure statement Ex. PW 16/A. PW28/IO has also deposed in his examination in chief that the accused Kanshi Ram disclosed that the katta which was used in the S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 58 of 61 present case had already been recovered in case FIR No. 97/08, P S Adarsh Nagar. It is thus an admitted fact that no recovery of said katta has been effected in this case pursuant to Ex. PW 16/A. The said katta has also not been proved by the prosecution during the prosecution evidence of this case. The said katta is thus inconsequential to the outcome of the present case and the prosecution has failed to prove beyond reasonable doubt that accused Kanshi Ram used the said country made pistol i.e. a deadly weapon while committing the case robbery. The discussion regarding knife Ex. P2 has already been done in the earlier part of the judgment wherein the prosecution has failed to conclusively prove said circumstance against the accused persons including Abdul Qadir @ Adil. The prosecution has thus also failed to prove beyond reasonable doubt that the accused Abdul Qadir @ Adil used a deadly weapon i.e. the knife Ex. P2 at the time of commission of the case robbery. Both the accused person are thus also liable to be acquitted in the present case U/S 397 IPC. In view of the above said discussion, the prosecution has also failed to prove the charge of Section 392/394/302/34 IPC. The prosecution has thus failed to prove S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 59 of 61 beyond reasonable doubt that on 07.03.08 in between 7 to 7.30 p.m. at Main Gate, Bank Complex, N.S. Mandi, Azar Pur, Delhi within the jurisdiction of P S Adarsh Nagar, both of them in furtherance of their common intention robbed the deceased Yogesh Kumar of a bag containing currency notes of Rs.52650/ and other documents and at the above mentioned date, time and place they in furtherance of their common intention voluntarily caused hurt on the person of deceased Yogesh Kumar with a knife at the time of committing the aforesaid robbery, used deadly weapons at the time of committing of the above said robbery and committed his murder by slitting his throat with a knife. The accused persons are thus entitled to benefit of doubt and are entitled to be acquitted U/S 392/394/302/34 IPC and U/S 397 IPC. The accused persons i.e. Abdul Qadir @ Adil and Kanshi Ram are thus both acquitted in the present case U/S 392/394/302/34 IPC and U/S 397 IPC.
Both the accused persons be released from Judical Custody, if not required in any other case.
File be consigned to Record Room.
S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 60 of 61
Announced in the open court (AMIT BANSAL)
today i.e. on 21.11.2014 Addl. Sessions Judge04 ( N/W):
Rohini Courts: Delhi
S.C. No. 111/08 FIR No. 64/08 P.S. Adarsh Nagar S/V Abdul Qadir @ Adil & another page 61 of 61