Delhi District Court
State vs . 1. Anil Kumar, on 1 July, 2013
IN THE COURT OF SH. RAVINDER DUDEJA: ADDITIONAL
SESSIONS JUDGE: FTC: E-COURT : KARKARDOOMA
COURTS: DELHI.
SESSIONS CASE No. 1/12
FIR No. 272/11
U/S: 302/201/34 IPC
PS: Anand Vihar
State Vs. 1. Anil Kumar,
S/o Sh. Ram Chander Dass,
H. No. E-86, Gali No. 4,
Ganesh Nagar,
Pandav Nagar Complex,
PS Mandawali, Delhi
Permanent Address:
Village Hajpurwa,
PS Chackmaisi,
Distt. Samastee Pur, Bihar
2. Arjun Kumar,
S/o Sh. Ram Chander Dass,
R/o Tejpal Ka Dhaba,
Near Durga Mandir,
Karkardooma Village,
Delhi.
FIR No. 272/11 Page 1 of 36
Permanent Address:
Village Hajpurwa,
PS Chackmaisi,
Distt. Samastee Pur, Bihar
Date of Institution : 03.01.2012
Reserved on : 22.05.2013
Delivered on : 01.07.2013
JUDGMENT
1. The prosecution case, in brief, is that on 11.09.2011, an information was received at Police Station Anand Vihar vide DD No. 19-B that the dead body of Sushil, son of Bankey Lal was discovered at railway line jhuggis behind Karkardooma Metro Station. The DD entry was marked to SI Arun Sindhu who proceeded to the spot with Constable Satender. The dead body of a male which was identified to be that of Sushil Kumar by his brother Anil Dass was found lying at Birla Land in the bushes in a naked condition. 5-6 broken pieces of the floor having blood were lying at a distance of ten meters from the body. The clothes and hawai chappals were also lying near the body. There were drag marks. It appeared that the body was dragged in the bushes with the purpose to hide the body. Statement of Anil Dass was FIR No. 272/11 Page 2 of 36 recorded wherein he stated that his brother Sushil Kumar came from village on 08.09.2011 to live with him and that on 09.09.2011 at about 5.30 pm, accused Anil and Arjun, who are the real brothers and were residents of his village, took his brother from his house at 5.30 pm. He stated that the son of elder brother of accused Anil expired about three months ago due to which, a hot argument took place between both the families and he was given threat. He further stated that his brother Sunil had lodged a missing report of Sushil Kumar on 10.09.2011. He further stated that when he and other persons reached railway track at Birla Land in search of Sushil, he found the body of Sushil lying in a naked condition. The face of the body was badly crushed. Anil Dass suspected that his brother was murdered by accused Anil and Arjun and with a view to conceal his identity, they removed his clothes and crushed his mouth. FIR was registered under Section 302/201/34 IPC. Crime team was called at the spot. Site plan was prepared. Exhibits were lifted from the spot. During investigation, police recorded the statement of Bhola Paswan under Section 161 Cr. PC wherein he stated that on 09.09.2011 evening, he had seen Sushil Kumar in the company of accused Anil Kumar and Arjun and that he identified the photograph of Sushil Kumar in the room of Anil Dass next day. Postmortem of the body was conducted. On the information given by complainant Anil Dass, both the accused were arrested. They gave disclosure statements. They got recovered their jeans pant having blood FIR No. 272/11 Page 3 of 36 which they were wearing at the time of incident. They also got recovered the stone with which they crushed the head of the deceased. The photographs of the place of recovery were taken. The knife recovered from the spot and the stone so recovered at the instance of accused were shown to the autopsy surgeon for obtaining subsequent opinion. The doctor gave the opinion that the injuries on the person of the deceased were possible with the said knife and the head of the deceased could have been crushed by the said stone. Both the accused were got medically examined from Dr. Hedgewar Hospital. There were scratch marks on the bodies of both the accused which were caused due to the thorns of Keekar plants which proves their presence at the spot. Postmortem report was obtained. On 27.09.2011, the exhibits were sent to FSL Rohini for expert opinion. On completion of investigation, it was concluded that both accused tried to kill the deceased by knife but having failed, they hit the stone on the head of the deceased and after removing his clothes, his body was thrown in the Keekar bushes. On completion of investigation, charge sheet was filed against both the accused under Section 302/201/34 IPC.
2. After compliance of Section 207 Cr. PC, the case was committed to Sessions Court. Charge under Section 302/201/34 IPC was framed against both the accused to which they pleaded not guilty.
FIR No. 272/11 Page 4 of 363. In order to prove its case, prosecution examined 21 witnesses. PW-1 is Dr. S. Lal from Forensic Medicine, Subzi Mandi Mortuary. He had conducted the postmortem on the body of the deceased. He deposed that on 21.09.2011, he received an application from Inspector Naveen Chandra seeking subsequent opinion with regard to the weapon of offence. On examination, he gave the opinion that injuries No. 1 to 8 were possible by knife and injuries No. 13 to 18 were possible by stone. His subsequent opinion is Exbt. PW-1/B. PW-2 is SI Mukesh Jain, Draftsman. He proved the scaled site plan Exbt. PW-2/A. PW-3 is Niranjan Singh. He is the landlord of the complainant Anil Dass. He deposed that on 08.09.2011, Anil Dass informed him that his brother Sushil Kumar, who had come to live with him from village about 1-2 days ago, was missing and that on 09.09.2011 at about 10.30 am, Anil Dass met him on the main road, Saini Enclave, Karkardooma and informed that Sushil Kumar was lying dead near railway line, Birla Land Park. He then went at the said place and found that a body lying there was stinking and its face was not identifiable. He informed the police from his mobile phone No. 9213851412. He stated that the elder brother of accused was his tenant.
FIR No. 272/11 Page 5 of 36PW-4 is Tejpal Singh. He deposed that accused Arjun used to work on his dhaba. He stated that about two months prior to 08.09.2011, Arjun went to village and returned back at the dhaba on 08.09.2011. He further deposed that accused Arjun used to sleep in the dhaba in the night and was having only one pair of clothes apart from his wearing clothes. He stated that on 08.09.2011, police came at his dhaba and asked about Arjun. Accused told that his name was Arjun and then police took him with them and after 3-4 days, police again came at his dhaba with accused Arjun and took his black colour pant from there on the pointing out of Arjun.
PW-5 is Kishan Lal. He is the landlord of accused Anil Kumar. He stated that accused Anil Kumar stayed at his house for about one and a half months prior to this case. He deposed that in September 2011, police visited his house three times and took search of the room of the accused and on third occasion, they took accused Anil Kumar with them. He stated that he does not know if anything was seized by the police. PW-5 was declared hostile and was cross examined by the learned Additional PP. In the said cross examination, he admitted that on 02.09.2011, police came at his house with accused Anil Kumar but denied that he was called in the room of the accused by the police. He denied that accused got recovered a dirty linedar cream colour pant FIR No. 272/11 Page 6 of 36 bearing the sticker of "Japak". He denied that there was old blood marks at the knee of the pant. He denied that the recovered pant was kept in a plastic jar and a pullanda was prepared which was sealed with the seal of NC. He identified his signatures on the seizure memo Exbt. PW-5/A but stated that his signatures were obtained at the police station and he does not know as to what is written therein. He stated that he cannot identify the pant.
PW-6 is Dr. A. Saha. He had examined accused Arjun Kumar and Anil Kumar and proved their MLCs Exbt. PW-6/A and Exbt. PW-6/B respectively.
PW-7 is Constable Jasbir, Photographer, Crime Team. He had taken the photographs of the spot i.e. bushes near Birla Land Railway Line, Anand Vihar which are Exbt. PW-7/A-1 to Exbt. PW-7/A-18.
PW-8 is Constable Satender, Photographer, Crime Team. He was called on 12.09.2011 at Metro Station Railway Line near Karkardooma Metro Station where he took three photographs Exbt. PW-8/A-1 to Exbt. PW-8/A-3.
PW-9 is Constable Devender Kumar. He came at the spot on the directions of the Duty Officer. He had taken the Rukka to the police station for registration of the FIR. After registration of FIR No. 272/11 Page 7 of 36 the FIR, he came back at the spot and handed over the copy of FIR and Rukka to the IO.
PW-10 is Anil Kumar Dass. He is the complainant. He proved his statement Exbt. PW-10/B recorded by the police. He had identified the body of his brother. His statement with regard to the identification of the body is Exbt. PW-10/C. He stated that he saw the accused Arjun at Ambedkar Park near Karkardooma Village and passed the information about the same to the police. Then he along with police came at Ambedkar Park from where accused Arjun was arrested vide memo Exbt. PW-10/E and his personal search was conducted vide memo Exbt. PW-10/F. He is also witness to the arrest of accused Anil Kumar from his house at Ganesh Nagar.
PW-11 is Sunil Kumar Dass, brother of deceased Sushil Kumar. He deposed that on 08.09.2011, Sushil Kumar had come to Delhi from his native village to the house of his elder brother Anil Kumar Dass. He met Sushil Kumar at the house of Anil Kumar Dass at about 3.30 pm on 09.09.2011 and asked him to come to his house but he did not come. Next day, he came to know that Sushil Kumar had gone out on 09.09.2011 but had not returned back. He then went to the police station and lodged a missing report. Later, the body of deceased Sushil Kumar was recovered at Birla Land near railway track on 11.09.2011 in a FIR No. 272/11 Page 8 of 36 naked condition. He identified the body from the clothes lying nearby the body, rings and nail polish on the nail of little finger of the left hand. He stated that the face of the body was badly crushed and in the mortuary, the face was washed. He again saw the body and identified the same to be that of his brother Sushil Kumar vide his statement Exbt. PW-11/A. PW-12 is Constable Manohar. He is the witness of investigation. He deposed that on 12.09.2011 evening at about 5.15 pm on the pointing out of complainant Anil Dass, both the accused Anil Kumar and Arjun Kumar were arrested vide arrest memos Exbt. PW-10/E and Exbt. PW-10/G and their personal search was conducted vide memos Exbt. PW-10/F and Exbt. PW-10/H. He further deposed that both the accused had also pointed out the place of occurrence at Birla Land near railway line vide pointing out memos Exbt. PW-12/B and Exbt. PW-12/C. He deposed that both the accused had got recovered a big stone having blood marks from a distance of about 50 meters from the spot. The recovered stone was kept in a plastic container and a pullanda was prepared which was sealed with the seal of NC and seized vide memo Exbt. PW-12/D. He further deposed that accused Arjun had got recovered a light black colour pant from a box from the dhaba of Tejpal at Karkardooma Village with sticker of "VAM" on the back pocket of the pant. He stated that there was blood mark on the knees at the bottom of the pant. He further FIR No. 272/11 Page 9 of 36 deposed that accused Anil Kumar got recovered a dirty cream colour pant from a box from the room on the second floor of his house at Gali No. 4, Ganesh Nagar, Pandav Nagar Complex having blood mark and bearing a sticker. The pant was kept in a plastic container and sealed with the seal of NC and seized vide memo Exbt. PW-5/A. PW-13 is W. Constable Asha Rani from PCR. She deposed that on 11.09.2011, she received an information from mobile phone No. 9213851412 regarding taking away of Sushil. She passed the information at the concerned police station and filled up the PCR form Exbt. PW-13/A. PW-14 is Constable Umesh Kumar. He deposited the exhibits at FSL, Rohini.
PW-15 is SI Jai Singh from Mobile Crime Team. He had inspected the spot and prepared the report Exbt. PW-15/A. PW-16 is Constable Surender. He had delivered the copy of the FIR at the residence of learned ACMM, DCP (East) and Joint C.P. PW-17 is HC Harish Chand, Duty Officer. He had recorded the FIR Exbt. PW-17/A and also proved various DD FIR No. 272/11 Page 10 of 36 entries as Exbt. PW-17/C to Exbt. PW-17/F. PW-18 is Bhola Paswan. He deposed that on 09.09.2011 at about 6.00 - 6.30 pm while he was returning to his room after work at Gazi Pur via Birla Land and when he reached at Metro line at Birla Land, both the accused namely Anil and Arjun were going towards railway line with a boy aged about 20-22 years through a kachcha road which is a short cut for going towards ISBT Anand Vihar. He then returned back to his room. On 10.09.2011 at about 7.00 am, he went to the room of Sunil who lives in an adjoining room. Sunil showed him the photograph of his brother and told him that his brother was missing. On seeing the photograph, he immediately recollected that he had seen the brother of Sunil going with both the accused on 09.09.2011 towards railway line from Birla Land. He informed about the same to Sunil and then left for his work. He further deposed that on 11.09.2011, Sunil called him to his room where police recorded his statement. PW-18 was declared partly hostile and was cross examined by the learned Additional PP and in the said cross examination, PW-18 admitted that on 10.09.2011, he went to the house of Anil Dass and found him weeping and on his asking, he told him that his brother Sushil was missing since yesterday. He admitted that it was Anil Dass who had shown him the photograph of Sushil. He admitted that after seeing the photograph, he told Anil that he had seen Sushil Kumar going with accused Anil and FIR No. 272/11 Page 11 of 36 Arjun towards railway line on 09.09.2011 evening. He admitted that it was Anil Dass and not Sushil who met him in his room when he went there on 10.09.2011 at about 10.00 -11.00 am.
PW-19 is Inspector Naveen Chandra. He is the IO of this case. During investigation, he inspected the spot, prepared the site plan Exbt. PW-19/A on the pointing out of SI Arun Sindhu and lifted exhibits vide memos Exbt. PW-19/B to Exbt. PW-19/G respectively. He had sent the body to mortuary for postmortem. On 12.09.2011, he filled up Form 25.35 Exbt. PW-19/H and got conducted the postmortem of the deceased. After postmortem, he seized the exhibits given by the doctor vide memo Exbt. PW-12/A. He deposed that in the evening at about 5.15 pm, complainant Anil Dass met him at Karkardooma Metro Station and informed him that accused Anil Kumar and Arjun were present at Ambedkar Park. He requested two scooterists and two pedestrians to join the raiding party but they refused and left. Then, he along with Anil Dass and Constable Manohar went at Ambedkar Park, Karkardooma Village from where both the accused were arrested and their disclosure statements Exbt. PW- 12/E and Exbt. PW-12/F were recorded. They pointed out the place of occurrence vide pointing out memos Exbt. PW-12/B and Exbt. PW-12/C. Both the accused then got recovered a heavy stone having blood from a distance of 50 meters from the spot towards Karkardooma from a heap of stones. The said stone was FIR No. 272/11 Page 12 of 36 kept in a plastic container and a pullanda was prepared and sealed with the seal of NC and the same was seized vide memo Exbt. PW-12/D. He further stated that accused Arjun got recovered a jeans pant having blood from a box lying in a room from the dhaba of Tejpal and accused Anil Kumar got recovered a pant from a box lying in the room from his house at Ganesh Nagar, Pandav Nagar Complex. On 21.09.2011, he obtained subsequent opinion from Autopsy Surgeon with regard to the weapon of offence. He also got prepared the scaled site plan from the Draftsman and sent the exhibits to FSL. He collected the photographs of the place of occurrence and the place of recovery. He later collected the FSL result Exbt. PW-19/N and filed the same in court.
PW-20 is SI Arun Sindhu. DD No. 19-B was marked to him. He came at the spot with Constable Satender where he found the body of Sushil Kumar lying in a naked condition in the bushes with face crushed. He had recorded the statement of complainant and called crime team at the spot. He had prepared the Rukka Exbt. PW-20/A and sent the same at police station through Constable Devender. Thereafter, the investigation was taken up by Inspector Naveen Chandra.
PW-21 is SI Dheeraj Yadav. He stated that on 10.09.2011, DD No. 13-A Exbt. PW-17/C regarding missing of FIR No. 272/11 Page 13 of 36 Sushil Kumar was assigned to him. He interrogated Sunil Kumar Dass, brother of Sushil Kumar.
4. Statements of both the accused were recorded under Section 313 Cr. PC wherein they stated that they were innocent. They refused to lead defence evidence.
5. Arguments have been heard from Mohd. Iqrar, Additional PP for the State and Sh. Naveen Singla, learned Amicus Curiae. The case of prosecution is admittedly based on circumstantial evidence. The circumstances highlighted by the prosecution during trial are as under:-
i) Motive for murder; ii) Accused took Sushil Kumar with them from the house of
Anil Kumar Dass on 09.09.2011 at about 5.30 pm.
iii) Last seen evidence;
iv) Recovery of blood stained stone at the instance of the accused, which is stated to be the weapon of offence;
v) Recovery of blood stained clothes of the accused;
vi) Presence of injuries on the person of both the accused which could be caused by thorny bushes where the body was concealed.
FIR No. 272/11 Page 14 of 366. The learned Amicus Curiae has argued that there is no eye witness to the occurrence. There is no independent public witness of recovery of the alleged weapon of offence. The public witnesses of the recovery of clothes are hostile. Blood sample of accused were not taken to rule out that the blood found on the recovered pants was of the accused themselves. It is also argued that prosecution has failed to prove the motive behind the murder. It is submitted that the witness of last seen has been declared hostile by the prosecution itself and his testimony is therefore not trustworthy. It is thus argued that none of the circumstances from which the inference of guilt of accused can be drawn, has been proved beyond reasonable doubt and therefore there can be no inference that accused had committed the murder.
7. Before analysing the factual aspects, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. It has been consistently laid down by the Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (see Hukam Singh FIR No. 272/11 Page 15 of 36 Vs. State of Rajasthan (AIR 1977 SC 1063), Eradu Vs. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa Vs. STate of Karnataka (AIR 1983 SC 446), State of U.P. Vs. Sukhbasi & Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh Vs. State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee Vs. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
8. In Padala Veera Reddy Vs. State of A.P. (AIR 1990 SC
79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
(3) the circumstances, taken cumulatively, should form a FIR No. 272/11 Page 16 of 36 chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
9. In Birdichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in the prosecution cannot be cured by a false defence or plea.
10. Now, the court shall see whether the prosecution in this case which is based on circumstantial evidence has been able to complete the chain of events in order to bring home the guilt of the accused. The challenge pertains to the proof of motive as well as the credibility of evidence of last seen and the recovery of the alleged weapon of offence and the blood stained clothes of the accused. In a case, which is based on circumstantial evidence, motive assumes greater importance. If motive is relied as circumstance, it has to be proved beyond reasonable doubt. The absence of motive may not be relevant in a case where the FIR No. 272/11 Page 17 of 36 evidence is overwhelming but it is a plus point against the accused in a case where the evidence against him is only circumstantial. The prosecution case is that the son of elder brother of accused Anil had died about three months prior to the occurrence due to which a verbal exchange took place between both the families and threats were extended to complainant Anil Dass. This is stated to be the motive for the commission of murder. In order to prove the motive, prosecution relies on the testimony of PW-10 Anil Kumar Dass. He is the complainant. He deposed that about 2-3 months before the occurrence, the son of Arun, elder brother of accused expired and Arun blamed his wife for his death calling her "Daayan" and for this reason, accused used to threaten to kill him. Besides the oral testimony of PW-10, there is no proof of the death of son of elder brother of accused. The wife of PW-10 has not been produced. There is no corroboration of the testimony of PW-10 with regard to the motive, so much so, his real brother Sunil Kumar Dass (PW-11) does not utter a single word which may reveal that accused were having any motive for the murder of deceased Sushil Kumar. Moreover if the testimony of PW-10 is to be believed, accused had enmity either with PW-10 or at best with his wife whom they believed to be responsible for the death of son of brother of the accused.
11. The learned Additional PP has argued that in their disclosure statements Exbt. PW-12/E and Exbt. PW-12/F, FIR No. 272/11 Page 18 of 36 accused have stated that about two months prior to the incident, Sushil Kumar had raped their married sister due to which they hated Sushil Kumar. It is submitted by the learned Additional PP that in order to take revenge, accused had committed the murder of Sushil Kumar.
12. PW-10 Anil Kumar Dass deposed that about three months before the occurrence, both the accused had made allegations of rape of their sister by his brother Sushil Kumar and a Panchayat was held in the village on their complaint but the allegations were not found true. This part of the testimony of PW- 10 is an improvement over his statement Exbt. PW-10/B given to the police, inasmuch as, in the said statement, he nowhere stated that accused had made allegation of rape by his brother Sushil Kumar. It appears that PW-10 made deliberate improvements to prove the motive of murder and therefore such a statement made by PW-10 is not admissible in evidence. This part of the testimony of PW-10 also does not find any corroboration from the testimony of his real brother Sunil Kumar Dass (PW-11). PW-10 deposed that a Panchayat was called in the village on the complaint. In cross examination, he could not tell the date and month of the Panchayat. He stated that a lot of other people were present in the Panchayat but could not tell their names. He gave the name of Sarpanch as Mahender Singh. Mahender Singh has neither been cited nor examined as a witness. No document of the Panchayat FIR No. 272/11 Page 19 of 36 has been produced. No police complaint regarding the incident of rape was made or produced before the court. Needless to say that the confession made by the accused by way of disclosure statements before the police are inadmissible in evidence. In my view, prosecution has failed to prove that accused made the allegations of rape of their sister by Sushil Kumar or that they were having any grudge on account of the same. Prosecution has thus failed to prove the motive for the murder.
13. The next circumstance on which the prosecution is relying is the circumstance of taking Sushil Kumar by the accused with them from the house of PW-10 Anil Kumar Dass. PW-10 Anil Kumar Dass deposed that on 09.09.2011 at about 5.30 pm, both the accused, came at his house and took his brother Sushil with them and that Sushil Kumar did not return back to the house whereupon his brother Sunil lodged a missing report with the police. PW-11 Sunil Kumar Dass stated that he resides in the house adjoining to the house of Anil. If the accused had taken Sushil with them from the house on 09.09.2011, PW-11 Sunil Kumar Dass would also have come to know about the same but Sunil Kumar Dass does not depose anywhere that he came to know that accused persons had taken Sushil Kumar on 09.09.2011. He admits that he had lodged a missing report but as per the missing report lodged in DD No. 30-A Exbt. PW-17/C, Sushil Kumar had left the house at 6.00 pm on 09.09.2011 without FIR No. 272/11 Page 20 of 36 telling to anyone. It is clearly stated in the missing report that there is no suspicion on anyone. If the relations between the families of complainant and accused were not good and if accused had taken Sushil Kumar from the house of Anil Kumar Dass with them, the same was an important circumstance leading to suspicion on accused and would surely have been mentioned in the missing report by Sunil Kumar Dass but the same was not done meaning thereby that the story put-forth by PW-10 that accused had taken his brother Sushil from his house, is not trustworthy. Moreover in cross examination, PW-10 states that he was not present at the house and was on duty when both the accused took his brother with them. He stated that he left the house at 9.00 am for work and that his wife told him that accused took his brother with them at about 5.30 pm on returning back to the house. He further stated that his wife told him that accused had told her that they would come back in two minutes with his brother Sushil but they did not return back. It is clear from the cross examination of PW-10 that Sushil Kumar had left the house in his absence and he had not seen the accused taking him from the house. His testimony to the effect that accused had taken his brother from the house is in the nature of hearsay information, which is inadmissible in evidence. The wife of Anil Kumar Dass has neither been cited nor been examined as a witness. Under these circumstances, I am of the opinion that prosecution has failed to prove that accused had taken Sushil Kumar with them from the house of PW-10 Anil FIR No. 272/11 Page 21 of 36 Kumar Dass on 09.09.2011 at 5.30 pm.
14. The next circumstance on which the prosecution relies is the last seen evidence. PW-18 Bhola Paswan is the witness of last seen evidence. The learned Additional PP has argued that the deceased was last seen alive in the company of both the accused at 6.00 - 6.30 pm on on 09.09.2011 at Birla Land. The body of deceased was recovered from Birla Land near railway track, Anand Vihar on 11.09.2011. The postmortem of the deceased was conducted on 12.09.2011 at about 11.25 am and as per the postmortem report Exbt. PW-1/A, the time since death was two and a half - three days meaning thereby that the murder was committed between 11.25 am to 11.25 pm on 09.09.2011. It is submitted that there is proximity of time and place between the event of accused having been last seen with the deceased and the factum of death and thus this is a strong and conclusive incriminating circumstance proved on record.
15. PW-18 Bhola Paswan deposed that on 09.09.2011 at about 6.00 - 6.30 pm while returning to his room after doing the work at Gazi Pur via Birla Land when he reached at Metro Line at Birla Land, both accused Anil and Arjun, who were known to him, were going towards railway line with a boy aged about 20-22 years through a kachcha road. He further deposed that on 10.09.2011 at about 7.00 am, he went to the room of Sunil who FIR No. 272/11 Page 22 of 36 lives in the adjoining room. Sunil showed him the photograph of his brother and told him that his brother was missing and on seeing the photograph, he immediately recollected that he had seen the brother of Sunil going with accused on 09.09.2011 towards railway line from Birla Land and he informed about the same to Sunil and left for his work. The testimony of PW-18 is in contradiction with the prosecution case, inasmuch as, the prosecution version is that Bhola Paswan went to the room of Anil Kumar Dass and not Sunil Kumar and the photograph of the deceased was shown to him by Anil and not Sunil and he informed Anil and not Sunil about having seen the accused in the company of the deceased at Birla Land. PW-18 was declared hostile and was cross examined by the learned Additional PP. In the said cross examination, he admitted that he had gone to the house of Anil Dass on 10.09.2011. He admitted that Anil Kumar Dass had shown him the photographs of Sushil. He admitted that he had told Anil that he had seen Sushil going with accused Anil and Arjun towards railway line on 09.09.2011 evening. He admitted that he got confused in the name of Anil and Sunil. Thus, PW-18 admitted that it was Anil in whose room he had gone and after seeing the photograph of Sushil, passed the information of having seen the accused in the company of the deceased at Birla Land in the evening of 09.09.2011 but the same is in reply to leading questions put by the learned Additional PP. Bhola Paswan is claimed to be the witness of last seen evidence which itself is FIR No. 272/11 Page 23 of 36 regarded a weak kind of evidence and therefore in such circumstances before proceeding to rely on the testimony of such a witness, it must be ensured that the testimony of the witness is trustworthy and consistent. In the present case, the testimony of PW-18 is not consistent, he having given inconsistent statements in examination in chief and in the cross examination of the learned Additional PP. There is another reason why the testimony of PW- 18 does not appear to be reliable. If the prosecution case that Bhola Paswan went to the house of Anil Kumar Dass on 10.09.2011 and passed information to him regarding his having seen both the accused in the company of the deceased at Birla Land is to be accepted, why this important fact is not mentioned in the statement Exbt. PW-10/B given by Anil Dass to the police. In his statement Exbt. PW10-/B, Anil Kumar Dass only stated that he was confident that his brother Sushil Kumar was murdered by accused Anil and Arjun. The circumstance of his brother having been last seen alive in the company of both the accused by Bhola Paswan was an important circumstance and he could not have ignored to mention the same if the same was told to him by Bhola Paswan.
16. In his cross examination by the learned Additional PP, PW-18 Bhola Paswan admitted that he went to the house of Anil Dass but in cross examination he stated that he went to the room of Anil Dass on his calling him. He further stated that Anil Kumar FIR No. 272/11 Page 24 of 36 Dass himself came to call him at about 7.00 am. Why Anil Dass would call PW-18 to his room is not clear. PW-18 made further improvement by stating that "this fact was told to me by Anil at the roof of my room where I was sleeping, it is correct that I did not go to the room of Anil Dass." This is in contradiction with the testimony of PW-10 Anil Kumar Dass who stated in cross examination that Bhola Paswan met him at his house. Thus, it is evident that the testimony of Bhola Paswan is not only inconsistent but is also contradictory to the testimony of PW-10 Anil Kumar Dass. The possibility that Bhola Paswan is a planted witness who has been introduced later on by the police to solve a blind case, cannot be ruled out. The last seen evidence of Bhola Paswan is therefore not reliable and cannot be acted upon.
17. Prosecution is relying on the recovery of heavy stone having blood on it at the instance of both the accused. PW-19 Inspector Naveen Chandra and PW-12 Constable Manohar are the witnesses of recovery of the stone. PW-21 deposed that on examination, both the accused gave disclosure statements Exbt. PW-12/E and Exbt. PW-12/F and they got recovered a heavy stone having blood lying at a distance of 50 meters from the spot towards Karkardooma from the heap of stones. Almost to the same effect is the testimony of PW-12 Constable Manohar. The stone was recovered pursuant to the disclosure statements of the accused. Admittedly, there is no public witness to the disclosure FIR No. 272/11 Page 25 of 36 statements and the recovery of the stone. Relying on the cross examination of PW-12 Constable Manohar, the learned Additional PP has argued that the recovery cannot be disbelieved merely because no public witness was joined. It is submitted that FSL result proves the presence of human blood on the stone which confirms that the stone recovered at the instance of accused was used as a weapon of offence by them. In the case of Satish Chander @ Billa Vs. State, 1995 (2) C.C. Cases 503 (HC), it has been held by the Division Bench of Delhi High Court that the discovery under Section 27 of the Indian Evidence Act in the presence of subordinate police officers when the Investigating Officer is taking his subordinate Constable as a witness for the incriminating discovery, then the same becomes very doubtful. In the present case also, the attesting witnesses to the recovery memos are the subordinate police officials of the IO who himself was an Inspector in the same police station. In the case of Satish Kumar Vs. State 1996 Crl. LJ 265, police had made recovery of blood stained weapon of offence at the instance of accused. The court found that no effort was made by the IO to join any independent witness at the time of alleged recovery. The evidence of recovery was held suspicious. In Para 33 of the judgment, the Hon'ble Court held that it is not understood how this basic principle of investigation has been lost sight of by the Investigating officer that at the time of interrogating the accused and for making the recoveries, which are admissible under Section 27 of the FIR No. 272/11 Page 26 of 36 Evidence Act, a sincere effort must be made by the Investigating Officer to join independent public witnesses. It is not the case that no such public witnesses were available or any sincere effort was made in joining the public witnesses but without success. Merely having the brother of the deceased with them for this purpose does not remove the suspicion about the genuineness of disclosure statement and the recoveries allegedly effected on the basis of such disclosure statement. In the present case, no reason has been assigned as to why the public persons were not joined. There is no explanation why complainant Anil Kumar Dass was discharged after the arrest of the accused and why he was not joined at the time of recording of disclosure statements and recovery. Similarly, in the case of State Vs. Ramesh 1998 II AD (Delhi) 42, it was held that non-joining of independent witnesses to recoveries from places though such witnesses were available, would be nothing short of violation or sub-section (4) of Section 100 of the Code and such recoveries cannot have any semblance of connecting the accused with the crime and proving the guilt. In the case of Chander Pal Vs. State 1999 (1) R.C.R. (Criminal) 150, there was recovery of clothes of the deceased at the instance of accused persons. No public witness was joined though available. The Hon'ble Court held that this was violation of Section 100 (4) Cr. PC and such recovery cannot be used to prove the guilt. The Hon'ble Court observed as under:-
"As pointed out above, PW-1, in his FIR No. 272/11 Page 27 of 36 evidence, has in unmistakable terms stated that public witnesses were very much present at the time of the recovery of the said Mudda Mal articles. It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it will be necessary for the Investigating Officer to take independent witnesses, if available, to the discovery/recovery under Section 27 of the Indian Evidence Act and not taking highly interested persons and police officials as witnesses to the discovery/recovery at least not free from doubt. The object underlying sub-
section (4) of Section 100 of the Code is to ensure an honest and genuine search/discovery and to prevent trickery by 'planting' the things to be 'found' at searches. 'Respectable' occurring in sub-section (4) of Section 100 of the Code means in substance impartial and independent persons not connected with officialdom or police whose evidence may be relied upon."
18. Applying the principles laid down above, I am of the opinion that non-joining of public witnesses as attesting witness to FIR No. 272/11 Page 28 of 36 the disclosure statements or at the time of recovery, renders the recovery made at the instance of accused doubtful.
19. The stone is shown to have been recovered from Birla Land, which is an open place which may be accessible to general public. However, prosecution tried to connect it with the accused by saying that the stone was lying hidden in between the other stones. Even if that were to be assumed for a moment, there are plenty of authorities to the effect that the recovery of some articles without establishing any linkage with the crime or the accused would not be an incriminating circumstance and certainly not sufficient in a circumstantial evidence based case to result in a conviction. There can be no identification of the stone, specially when it was found lying with other stones in an open place. The FSL result proves the presence of human blood on the stone but there is no categorization of the blood group. No DNA matching was done to confirm that the blood on the stone was the blood of the deceased. Therefore, in my view, prosecution has failed to prove the recovery of weapon of offence and also failed to connect the stone with the crime or the accused.
20. Prosecution further relies on the recovery of jeans pant of accused Arjun which was having blood from the box lying in a room in a dhaba. The learned Additional PP has argued that the recovery of jeans pant at the instance of accused Arjun has been FIR No. 272/11 Page 29 of 36 proved by independent witness Tejpal Singh (PW-4) and the FSL result proves the presence of blood on the pant. PW-19 Inspector Naveen Chandra deposed that accused Arjun took them to Dhaba of Tejpal at Karkardooma Village and from there he got recovered the jeans pant having blood from a box lying in a room in the dhaba. According to PW-19, accused were arrested on 12.09.2011 and gave disclosure statements. Thereafter, the recovery was affected at their instance but PW-4 Tejpal deposed that on 08.09.2011, police came at his dhaba and took Arjun with them and came back again after 3-4 days with accused Arjun and took his black colour pant from there on his pointing out. PW-4 was declared hostile by the prosecution and was cross examined by the learned Additional PP. In the said cross examination, he admitted that police brought accused Arjun at his dhaba for the first time on 12.09.2011 but denied that accused used to keep his clothes and belongings in a box. He denied that accused Arjun took out a pant from the box and gave the same to the police. He denied that there were blood marks at the knees and near bottom of the pant. He denied that the pant was kept in a plastic cover and was sealed with seal of NC. Thus, it is evident that though PW-4 deposed about the recovery of pant of Arjun from the dhaba but not in the same manner as stated by the IO which creates doubt with regard to the recovery of the pant. The FSL result shows the presence of blood on the jeans pant but there is no categorization of the blood group nor any DNA examination has FIR No. 272/11 Page 30 of 36 been done to connect the blood on the pant with the blood of the deceased. In the case of Satish Kumar Vs. State 1995 (3) CC Cases 252 (HC), blood group on the weapon of offence could not be deciphered by the experts and only human blood was found on that article. It was held that it cannot be linked with crime in question.
21. PW-19 deposed that accused Anil Kumar got recovered a pant from a box lying in his room at Ganesh Nagar, Pandav Nagar Complex. Kishan Lal, landlord of the house is the witness to the seizure memo Exbt. PW-5/A but he has turned hostile. He stated that in September 2011, police visited his house three times and took the search of the room of accused and on the third occasion, they took accused Anil Kumar with them. He stated that he does not know if anything was seized by the police. In cross examination by the learned Additional PP, he denied that he was called in the room of accused by the police. He denies that accused had got recovered a dirty linedar cream colour pant from the peti. He denied that there were blood marks at the knee of the pant. He denied that the recovered pant was kept in a plastic jar which was kept in a cloth pullanda which was sealed with the seal of NC. He admitted his signatures on the memo Exbt. PW-5/A but stated that he does not know as to what was written therein. Thus, the recovery of the pant from the room of accused Anil is not supported by public witness Kishan Lal, which makes the recovery FIR No. 272/11 Page 31 of 36 doubtful.
22. The FSL result Exbt. PW-19/N proves the presence of human blood of 'B' group on the pant recovered at the instance of accused Anil Kumar. The blood group of accused Anil Kumar was not tested. Who knows that it may be the blood of the accused and not of the deceased as no DNA test was conducted. Assuming for the sake of arguments that the blood stained pants of accused were recovered by the police, in my view, mere presence of blood on the recovered clothes are not sufficient to conclude that accused had committed the murder of the deceased when there is no other clinching evidence on record. In the case of Surjit Singh Vs. State of Punjab AIR 1994 SC 110, a watch belonging to the deceased and one dagger which was found to be stained with human blood were recovered at the instance of the accused. It was held by the Supreme Court that the said recovery by itself, does not connect the accused person with the murder of the deceased. It was further held that said circumstance may create some suspicion but the same cannot take the place of proof. In the decision reported as Narsinbhai Haribhai Prajapati Vs. Chhatrasinh & Ors. AIR 1977 SC 1753, the Supreme Court held that in the absence of any other evidence the circumstances of seizure of blood stained shirt and dhoti from the person of an accused and dharias from the house of the accused are wholly insufficient to sustain the charge of murder against the accused.
FIR No. 272/11 Page 32 of 3623. In the decision reported as Prabhoo Vs. State of U.P. AIR 1963 SC 1113, a Kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. Holding that it is well settled that circumstantial evidence must be such as to lead a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused and not with his innocence and that from the mere production of the blood stained articles by the accused, one cannot come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with the guilt of the accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and that the accused might have produced the said articles when interrogated by the police, the Supreme Court acquitted the accused.
24. The next circumstance on which the prosecution relies is the presence of scratches and abrasions on the person of both the accused. It is argued by the learned Additional PP that the MLCs of accused prove the presence of scratches and abrasions on their bodies. It is stated that the injuries were received while hiding the body in the bushes and therefore the same proves the involvement of accused in the crime.
FIR No. 272/11 Page 33 of 3625. It is not proved from the evidence that the bushes where the body was hidden were thorny bushes which could cause scratches or abrasions. The incident took place on 09.09.2011. Accused were medically examined on 13.09.2011. No doubt, the MLCs do show the presence of scratches and abrasions but they are mentioned as "old scratches and abrasions." It is not known how old the scratches and abrasions are and therefore it cannot be conclusively held that the said injuries were received by the accused while trying to hide the body in the bushes.
26. CONCLUSION:
Prosecution has failed to prove any of the circumstances relied upon by them. The case is only based on suspicion and it is a settled law that suspicion however strong, cannot take place of proof. In Ashish Batham Vs. State of M.P. 2002 (3) JCC 1883, it was held as under:-
"11. Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of FIR No. 272/11 Page 34 of 36 indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between may be true "and must be true" and this basic and golden rule only helps to maintain the vital distinction between conjectures and "sure conclusions"
to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."
In State of U.P. Vs. Ashok Kumar Srivastava, 1992 (2) SCC 86, it was pointed out that great care must be taken in FIR No. 272/11 Page 35 of 36 evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt."
27. In view of the foregoing discussion, I am of the view that there are grave and serious doubts in the prosecution version. In my view, prosecution has not been able to establish the chain of circumstances so complete so as to reach the conclusion of the guilt of the accused by cogent evidence ruling out every other possibility consistent with the innocence of the accused. Both the accused are therefore acquitted. Their bail bonds are extended for a period of six months under Section 437-A Cr. PC. File be consigned to Record Room.
(RAVINDER DUDEJA) ASJ/FTC/E-COURT/SHAHDARA/KKD/DELHI.
ANNOUNCED IN THE OPEN COURT ON 01.07.2013.
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