Delhi District Court
State vs . 1. Anoop S/O Govind Ram on 26 February, 2008
-: 1 :-
IN THE COURT OF SHRI V.K. BANSAL
ADDL. SESSIONS JUDGE
NEW DELHI
IN RE: Sessions Case No. 114/2004
Date of Institution:
Date on which
judgment was reserved :
Date of decision: 26.02.2008
State Vs. 1. Anoop s/o Govind Ram
R/o Jhuggi No. W-50/106, E-Block,
J.J. Colony, Inderpuri, New Delhi
2. Shambuka s/o Jai Ram
R/o E-188, Inderpuri,
J.J. Colony, New Delhi.
3. Vinay @ Monu s/o Pitambar
R/o F-457, Inderpuri,
J.J. Colony, New Delhi.
4. Vishamber s/o Chander Pal
R/o V.P.O Mohammadpur Joda
Distt Gautam Budh Nagar, UP.
FIR No. 195/2004
PS Naraina
U/s 302/392/34 IPC
.................................................
JUDGMENT
On 07.08.2004 an information was received in the police station that a murder had taken place in E-137 Naraina Vihar. On this DD No. 12 A was recorded. SI S.D. Mishra along with -: 2 :- Ct Umesh went to the spot. Crime Team was summoned. No witness was available. Therefore SI S.D. Mishra after making endorsement on the DD itself got the FIR registered. Dead body was removed to Safdarjung Mortuary. During investigation it revealed that the son of the deceased is in America who was informed. On 09.08.2004 son of the deceased came to India. Postmortem was got conducted. Thereafter son gave the list of missing articles. On 12.09.2004 a secret information was received about Anoop that he is spending lavishly. He was apprehended and he disclosed that he along with Shambuka, Vinay @ Monu and Bishambar murdered Gyan Prakash Batra whose dead body was found in E-137 Naraina Vihar. Accused Anoop was arrested. He got recovered one wrist watch. Accused Shambuka was apprehended from his house at E-188, Inderpuri, J.J. Colony, New Delhi. He was interrogated and he confessed about the commission of crime. Thereafter accused Vinay was apprehended from his house at F-457, Inderpuri, J.J. Colony, New Delhi. He also went to the house of Bishambar but he was not found there. Both the accused confessed about the commission of crime. Accused Shambuka got recovered one -: 3 :- wrist watch and accused Vinay got recovered the purse containing I-card and driving license of Gyan Prakash Batra bearing his photograph. On 17.09.2004 accused Bishambar was arrested and he got recovered the ring from his almirah on which Baba Gopal Das Talib was found inscribed. After completion of investigation charge sheet against all the accused persons was filed. Ld M.M after complying with the provisions of sec. 207 Cr. P.C committed the case to the Sessions Court as the offence punishable under sec. 302 IPC is exclusively triable by the Sessions Court. All the accused persons were charged for the offence punishable under sec. 302 read with 34 IPC and 392 read with sec. 34 IPC to which they pleaded not guilty and claimed trial.
2. Thereafter the case was fixed for prosecution evidence. Prosecution in order to prove the guilt of the accused persons examined 24 witnesses. Thereafter prosecution evidence was closed. Statement of all the accused persons were recorded under sec. 313 Cr. P.C wherein they denied all the evidence. They stated that they have been falsely implicated. They did not wish to lead evidence in defence. Thereafter the case was -: 4 :- fixed for arguments.
3. I have heard ld Addl. P.P for the state, Ld defence counsels for the accused persons and perused the record.
4. Ld Addl. P.P for the state submitted that in the present case there is no eye witnesses available. There is circumstantial evidence. Ld Addl. P.P submitted that in the present case the chain of circumstances is complete. Prosecution has proved and established all the circumstances. The circumstances proved points towards the guilt of the accused and the chain is complete. From the circumstances proved on record it is established that the offence of robbery as well as murder was committed by the accused persons. Ld Addl. P.P submitted that in the present case Smt Chanchal PW14 heard the noise at about 10.30 or 11 a.m. She came out. On inquiry she came to know that Mr Batra had been murdered. She informed the police from telephone no. 25798786. On the basis of this information DD No. 12A Ex. PW1/A was registered. On this information SI S.D. Mishra PW19 along with Ct Umesh reached the spot. There they found -: 5 :- the dead body of Gyan Prakash Batra. Crime Team was also summoned. Scene of crime was photographed. One jacket which was lying on the face of the deceased was seized. Son of the deceased was in America. Sh Jitender Mohan Batra the son of the deceased was informed and he came to India on 09.08.2004. Thereafter postmortem was conducted. On the request of IO, Jitender Mohan Batra told that two watches one of black colour and other of green colour and one purse which his father used to keep with him and one gold ring on which Baba Gopal Dass Talib was inscribed are missing. Ld Addl. P.P submitted that on 12.09.2004 i.e after about 7 days SI Anil Kumar of PS Inderpuri came to know that accused Anoop is spending extravagantly and that he is having a watch of foreign make. Accused Anoop was apprehended. He was wearing a wrist watch of black colour make TIMEX. It was also seized vide memo Ex. PW 11/C. The watch which was recovered from accused Anoop was identified by witness PW5 Dinesh Chabbra as Ex. P2 and also by PW10 son of the deceased as Ex. P2 as the same which he had bought by his father. Ld Addl. P.P submitted that accused Anoop also made confessional statement which is Ex. PW11/D wherein he -: 6 :- stated that he along with his co-accused Shambuka, Vinay, Bishambar committed this offence. Ld Addl. P.P submitted that accused Anoop is the person who had earlier worked with PW6 Raju Khan. Accused Anoop has worked at his shop. He got employed the wife of accused Anoop namely Pooja at the house of Gyan Prakash Batra the deceased and accused Anoop was also seen at the house of Gyan Prakash Batra many times by PW6. Ld Addl. P.P further submitted that thereafter on the disclosure of accused Anoop , accused Shambuka was apprehended from his house at E-188 J.J. Colony Inderpuri. He made disclosure statement Ex. PW9/E and got recovered the quartz watch Ex. P3 and was identified by PW 5 and PW Jitender Mohan Batra also identified the same which was brought by him from New Jersey. Accused Vinay was also apprehended from his house F-457, Inderpuri, J.J. Colony, New Delhi. He confessed about the commission of crime and got recovered the purse which was stolen at the time of commission of crime. Purse is Ex. P4 which was having I-card Ex. P5 and the driving license Ex. P6 of the deceased and the driving license was also having the photograph of the deceased. Ld Addl. P.P submitted that accused Vinay is the -: 7 :- accused who sustained injury in the commission of offence. He got medical treatment from Happy Clinic. Rehmat Ali examined as PW8 who was working as compounder at Happy Clinic with Dr Ashok Kumar Sharma was examined as PW17 and he clearly stated that Vinay @ Monu came to the clinic on 07.08.2004 at about 11.30 a.m who was having a bruise on his face. The photocopy of the register is proved as Ex. PW8/D1 where the name of Monu appeared at sl no. 4. Ld Addl. P.P submitted that accused Bishambar was arrested on 17.09.2004 from Todapur road Inderpuri. He also disclosed about the commission of crime and got recovered ring from the almirah on which Baba Gopal Dass Talib was inscribed. That ring has been identified by PW10 as well as PW5 as Ex. P1 and it is the same ring which was given to the parents of PW10 by Baba Gopal Dass Talib about 15-20 years back. Ld Addl. P.P submitted that all these circumstances clearly establishes that recovery of Ex. P1 to P6 i.e ring Ex. P1 recovered from accused Bishambar, black colour wrist watch Ex. P2 recovered from accused Anoop, green colour watch recovered from accused Shambuka and purse Ex. P4 containing I-card Ex. P5 and driving license Ex.P6 recovered from accused Vinay -: 8 :- immediately after robbery raises presumption that accused persons had robbed Gyan Prakash Batra, looted Ex. P1 to P6 and that they murdered Gyan Prakash Batra.
5. Ld Addl. P.P in support of his arguments has relied upon the judgment cited as Gulabudeen & Ors. Vs. State 2007 (IV) AD (Cri.) (DHC) 14 wherein it has been held that:-
"Recovery of gold chain from the possession of accused Satbir Singh only two days after the incident clearly establishes that it was removed by him from the body of the deceased at the time of incident and consequently it also stands established that all the five accused persons had gone to the house of the deceased for committing dacoity and they committed dacoity as well as murder"
Ld Addl. P.P submitted that keeping in view all these facts and circumstances it is clear that the prosecution had discharged its onus and proved the guilt of the accused persons beyond doubt and prayed that they be convicted.
6. Ld counsel Sh R.P. Kasana for accused Anoop and -: 9 :- Bishambar submitted that in the present entire case there is no ocular evidence. The entire case depends upon the circumstances. It is well settled principle of Law that in the case dependent upon the circumstantial evidence the chain of circumstances shall be established and proved beyond doubt. All the circumstances so proved and established must point towards the guilt of the accused and be inconsistent with any hypothesis of innocence of the accused. Chain of circumstances must be complete. Ld counsel submitted that in the present case circumstances are not proved beyond doubt or established by the prosecution. There is no chain proved by the prosecution. The Investigating Agency came to know about the death on 07.08.2004 when they received telephone from PW14, on the basis of which DD No. 12A Ex. PW1/A was registered. Crime Team visited the spot. They gave their report Ex. PW24/DA. Scene was got photographed. The photographs show that the almirah was lying opened, goods were also lying scattered. Ld counsel submitted that the primary object seems to be to rob the deceased. No list of missing items has been provided. IO had alleged that son of the deceased had told that two wrist watches, one purse and ring were missing. Ld -: 10 :- counsel submitted that all these things were not having any major value. No valuable item is reported to have gone missing from the house. The ring which has been shown is very small ring and it is not clear that it was of gold. Ld counsel submitted that it is something unbelievable that accused would keep the watch and ring with them which have no value knowing fully well that by keeping these property with them they can be implicated in this case. Ld counsel submitted that in the present case there is no evidence to link the accused persons with the commission of offence. Property which has been shown to have been recovered is not having any value. So far as accused Bishambar is concerned PW7 has failed to identify him. There are other contradictions also in the testimony of the witnesses. So far as accused Bishambar is concerned he is shown to be in possession of the wrist watch having no value and is easily available in the market that also he was having on his hand. Ld counsel submitted that it is something unbelievable that accused will wear the watch which he had got after committing the robbery and murder. Ld counsel submitted that there is no motive proved on record for committing the offence or the murder. No costly item is -: 11 :- shown to have been missing. As per the prosecution case the deceased was dealing in money lending hence there may be many persons inimical to him to whom he had given money. Ld counsel submitted that the Investigating Agency has not properly investigated the case and falsely implicated the accused persons in the present case.
7. Ld counsel Sh R.P. Tyagi for accused Vinay submitted that according to the prosecution case accused Vinay was arrested from his house and his disclosure was recorded by SI S.D. Mishra but S.D. Mishra had stated that he does not know who recorded the disclosure statement of accused Vinay. TIP has not been conducted. According to the prosecution case Vinay sustained injury in the commission of offence which he got treated in Happy Clinic. Prosecution has examined Rehmat Ali as PW8 who was the compounder in the Clinic of PW17 and Rehmat Ali first time identified Vinay in the court that he is the person who appeared in his clinic on 07.08.2004 at about 11.30 a.m having bruise on his face and he gave him treatment. Ld counsel submitted that no TIP was conducted. Witness has identified him first time in the court. Witness was -: 12 :- not knowing him prior to the incident and hence the TIP should have been conducted. So far as the pointing out of the place is concerned that is also of no effect as the place of occurrence was already in the knowledge of the police. Ld counsel further submitted that one purse Ex. P4 containing I- card Ex. P5 and driving license of the deceased Ex. P6 is shown to have been recovered at the instance of accused. That purse or the I-card and the driving license was of no value and was of no amount to the accused. There is no reason why he shall keep the same with him. Ld counsel submitted that infact no such recovery has been effect and it was planted upon him to falsely implicate him in the present case. Ld counsel submitted that it is something unbelievable that accused would keep that purse with the I-card and driving license of the deceased after the commission of offence so that he can be implicated in this case. Ld counsel submitted that even otherwise according to the report of the crime team proved on record as Ex. PW24/DA one jacket clothes, two copy loose documents, purse, telephone directory and other one notebook were found on the spot and it is reported that these articles were seized by the IO. Ld counsel submitted that if the -: 13 :- purse was seized from the spot on 07.08.2004 itself then the purse would not have been recovered from accused Vinay which has been shown to have been recovered at the instance of accused Vinay. Ld counsel submitted that in fact the purse which has been found on the spot is planted upon accused Vinay to falsely implicate him. Ld counsel submitted that there is no other recovery memo showing that any other purse was also recovered. Ld counsel submitted that keeping in view all these facts as the recovery itself is doubtful and the recovery which has been shown is of an article which is of no value and there is no reason why the accused would keep such an article with him knowing that it is a stolen property and he can be apprehended on the basis of that with him. Ld counsel submitted that keeping in view all these facts it is clear that accused has been falsely implicated in this case by planting the purse.
8. Ld counsel Mr Khanna for accused Shambuka submitted that in the present case one wrist watch is shown to have been recovered from accused Shambuka that also after so many days i.e on 13.09.2004 of the incident. No public -: 14 :- witness had been joined in the recovery. There is recovery of green colour wrist watch of plastic having no value. Recovery itself is doubtful as the witness have contradicted each other. Ld counsel submitted that even on the file there is no list of stolen articles. The photograph and the other record show that the house was ransacked and the articles were lying scattered but interestingly no valuable item has gone missing, only the small items having no value were shown to have been stolen and planted upon the accused persons. Ld counsel submitted that accused has been falsely implicated. There is no evidence, no chain of circumstance pointing towards the guilt of the accused and prayed that accused persons be acquitted giving benefit of doubt to them.
9. After hearing the arguments and going through the record I found that in this case only circumstance is recovery of stolen articles from the accused persons. There is no last scene evidence. No finger prints were found and there is no recovery of weapon of offence. Prosecution has developed the story that this murder had taken place with intent to rob the deceased. Prosecution interestingly had alleged that the -: 15 :- stolen/missing articles were only two wrist watches, one purse and one ring. There is nothing on record that any other item was also stolen or went missing from the house. No jewellary is reported to have gone missing. There is no recovery also of any valuable item. According to PW24, PW10 told him that only these items went missing. No list in writing was ever given. The items are also not having any value. PW5 was also not able to identify the purse which was allegedly recovered from Vinay. It is important to note that PW10 who is the son of the deceased was not living with him but was in New Jersey. He reached India only on 09.08.2004 and thereafter checked and informed the police that these items were missing. In the present case recovery has been effected in the presence of various police officials. First of all accused Anoop was arrested. According to PW11 Ct Priyavrat and Ct Rajender informed that one boy is spending extravagantly. They went in search of him along with the SHO and on the pointing out of the informer accused Anoop was apprehended from near the temple. No public witness has been joined while apprehending accused Anoop though he was apprehended near the temple. According to PW11, Ct Priyavrat gave him information at -: 16 :- about 10.10 a.m in the police station but according to HC Priyavrat examined as PLW12 he received the secret information about accused Anoop at about 6.15 p.m on 12.09.2004. Meaning thereby that he could not inform PLW11 before that. This all makes the manner of arrest of accused Anoop highly improbable. So far as recovery is concerned prosecution had alleged that from accused Anoop one wrist watch Ex. P2 was recovered. It is a digital watch and is easily available in the market. It was not a valuable watch. In the circumstances that it is something unbelievable that accused would keep such watch with him knowing that on the basis of that he can be arrested for committing robbery and murder. Similarly accused Vinay is alleged to have been arrested form his house on 12.09.2004 and from his possession one purse Ex. P4 containing I-card Ex. P5 and driving license Ex. P6 were recovered. All these have no value whatsoever for the accused concerned. I do not find any reason why anybody would keep such items with him when it has no value for him and also knowing that this evidence would get him arrested. If accordingly this purse had not been identified by PW5 though he is the relative of the deceased and used to visit him. This -: 17 :- purse has been identified only by PW10. Recovery witnesses are PW19, 9 and 24. These witnesses have contradicted each other. PW9 has stated that they reached the house of accused Vinay at 6 a.m. PW19 had stated that father of accused Vinay was there but he refused to sign. No other family member of Vinay agreed to sign the memo. He also stated that they reached the house of Vinay at about 5-5.15 p.m. PW24 stated that only small children were in the house of Vinay. There was no major family member present in the house. These contradictions clearly show that they had not gone to the house of accused Vinay for apprehending him or that all the proceedings were recorded in the police station. IO had also not explained as to what happened to the purse which he seized from the spot according to the document Ex. PW24/DA. There is no seizure memo on record regarding purse which was allegedly seized according to the crime report Ex. PW24/DA. There is only one seizure memo of the purse which is shown to have been recovered at the instance of accused Vinay. No TIP of accused Vinay was got conducted and he was first time identified by PW8 in the court. According to the evidence Vinay got treatment at Happy Clinic as he had -: 18 :- sustained bruise but there is nothing on record to show that bruise was sustained by him in the commission of offence. It is also not clear from the evidence of PW8 and PW17 that accused Vinay is infact the same person who got treatment on 07.08.2004 from Mohd Rehmat Ali but in the register at sl no. 4 only the name of Monu was found and the record shows that there were many Monu in the register. It is interesting to note that only accused was attended by PW8 and all other patients were attended by PW17.
10. So far as the other accused persons are concerned from accused Shambuka plastic wrist watch of green colour is shown to have been recovered. According to the witnesses this wrist watch was got recovered from accused Shambuka from his house that also from the almirah in the outer room. According to PW24 and PW19 they reached the house of Shambuka at about 4.30 a.m whereas according to PW9 they reached the house at about 5 a.m. No public witness was joined and the recovery is also of the watch which is of no value and is of little value. So far as accused Bishambar is concerned from him gold ring is shown to have been recovered -: 19 :- which is also of little value. In view of the above discussion I am of the opinion that the alleged recovery from the possession of the accused person is doubtful. There is no other circumstance against the accused persons.
11. Prosecution has failed to prove on record any motive for committing murder of the deceased. There is nothing on record that any valuable item was found missing or any valuable is recovered from the accused persons. There is no other circumstance to link them with the commission of offence. The onus was upon the prosecution to link the accused persons with the commission of offence.
12. In view of the above discussion I am of the opinion that the prosecution has failed to link the accused persons with the commission of offence. Therefore, giving benefit of doubt I acquit all the accused persons. They be released if not wanted in any other case. File be consigned to record room.
Announced in open court ( V.K. BANSAL )
Dated: 26.02.2008 ADDL. SESSIONS JUDGE
NEW DELHI