Delhi District Court
State vs . Manoj Kumar Etc. Fir 121/13 (5665/16) on 27 September, 2018
State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
IN THE COURT OF MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56665/16
FIR No. 121/13
PS Tilak Nagar
U/s 302/201/34 IPC
STATE
VERSUS
(1) MANOJ KUMAR (A1)
S/O SH.DESH RAJ
R/O LALA KA PURVA,
18 SULTANPUR GHOS
DISTT.FATEHPUR, U.P.
(2) SAROJ KUMAR (A2)
S/O SH.DESH RAJ
Result: Acquitted Page 1 of 46
State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
R/O LALA KA PURVA,
18 SULTANPUR GHOS
DISTT.FATEHPUR, U.P.
(3) SMT.RANI DEVI (A3)
W/O MANOJ KUMAR
R/O LALA KA PURVA,
18 SULTANPUR GHOS
DISTT.FATEHPUR, U.P.
Date of Institution : 02.07.2013
Date of Reserving Judgment : 18.09.2018
Date of Judgment : 27.09.2018
Offence Complained of : U/s. 302/201/34 IPC
Offence Charged with : U/s. 302 IPC (against accused
Manoj Kumar) and
U/s. 201/34 IPC (against all
the three accused persons)
Result: Acquitted Page 2 of 46
State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
JUDGMENT
1.Accused Manoj Kumar has been facing trial for the offences Punishable U/s 302 IPC and U/s 201/34 IPC while accused Saroj Kumar and Rani Devi have been facing trial for the offence Punishable U/s 201/34 IPC.
PROSECUTION'S CASE :
2. On 06.03.2013, two back to back DDs i.e. DD No.107B (ExPW1/D) and DD No.108B (ExPW1/E) were received at local Police Station. ASI Dharam Pal (PW2) and Ct. Arvind (PW16) reached at House No. M1, Shyam Nagar, Delhi. Its ground floor was vacant. It was full of foul smell. ASI Dharam Pal (PW2) entered the house and noticed that a dead body was lying there. It was covered with waste products (Scrap). The upper body was covered with Jute (Taat) bag and some bricks were lying on it. The body had highly decomposed. The Crime Team was called. Senior police officials also Result: Acquitted Page 3 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) arrived there. The dead body was of a man aged about 20 to 22 years with face and head injuries. It was clad with only an under wear which was wrapped with a cloth. His upper body and Torso were bare. The ground and first floor of the house were vacant. Two rooms were constructed on the top floor. Inquiry revealed that some labourers were residing there. Inspection revealed some blood marks on a wall and lot of dried blood on the Plywood of Bed. The blood spots were also found on the staircase and the iron gate of the staircase. Thus, the police team lifted the relevant exhibits from the crime scene. Through Ct.Arvind Kumar, a case under Section 302/201 IPC was got registered vide FIR No.121/13 (ExPW1/A). Further exhibits were seized. The dead body was got preserved in DDU Hospital Mortuary.
3. The owner of the House Sardar Paramjeet Singh (PW7) was examined and it was revealed that the occupant of the top floor of this Result: Acquitted Page 4 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) house are Manoj Kumar (A1), Saroj Kumar (A2), Rani Devi (A3) and Raju (Deceased).
4. The deceased aged about 1617 years, and A1 used to work in the Confectionery Shop of PW7. All of them were missing and hence their search began as suspects. The address of native place of A1 to A3 was obtained. A team comprising of Insp. Kishore (PW 18), SI Mohd. Haroon (PW17), HC Jai Bhagwan (Dropped), HC Deep Chand (PW 15), WHC Pushpa (PW 14), Ct.Anil, Ct.Udham Singh and Ct.Vinod went in private Cars to the native place of accused persons at Village Lala Ka Purva. It was learnt that A1 to A3 had not come there and might go to the house of Inlaws of A1 located in Ajeet Pura, P.S Sainik, District Koshambi. Same Team reached to Village Ajeet Pura and learnt that A1 and A3 did come there being Husband and Wife but they had fled from there also. The police team returned to Delhi.Result: Acquitted Page 5 of 46
State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
5. Sardar Paramjeet Singh (PW7) disclosed that Saroj Kumar (A2) may be available at RZ24A, Narsingh Garden, Vishnu Garden i.e. his work place where he was scheduled to come for his payment against work. On this information, a Picket Arrangement was made near this premises. On 8.3.2013 at about 3.30 p.m. PW 7 pointed out towards Saroj Kumar (A2). He was arrested vide arrest memo (ExPW7/A). He disclosed that during the intervening night of 26/27.2.2013, an argument had ensued between his brother (A1) and Raju on the issue that Raju used to say indecently about Rani Devi. Raju was scolded by A1 upon which Raju called the PCR. Some police officials from P.S Tilak Nagar had taken A1 to Police Station. When he returned, A2 and A3 were sitting on the roof of the building. A1 straightway went to his room where Raju was watching Television. A1 closed the door and started beating Raju. A2 and A3 tried to intervene but A1 did not open the door. He eventually killed him with a Silbatta Result: Acquitted Page 6 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Stone Ex.P.8. When Manoj (A1) opened the door, a terrified A2 and A3 assisted the A1 in hiding the dead body by shifting it from the top floor to a room at the ground floor. A1 and A3 then went to their native place. A2 was expected to hide the dead body at some other place but he could not do so.
6. He further informed that A1 and A3 will be coming in the evening of 8.3.2013.
7. Hence, a raiding party was prepared and at the identification of A 2, A1 and A3 were apprehended from Khyala Bus Stand, Delhi. They were also arrested. They made similar disclosure statement as made by A2. A1 further disclosed that the clothes which he was wearing at the time of incident were thrown by him after keeping them in a cloth bag near Anand Vihar ISBT. At his instance, weapon of offence was got recovered from the top floor of House No. M1, Sham Nagar which is a 'Batta' and used as a part of 'Sil' and 'Batta' Result: Acquitted Page 7 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) (Ex.P.8). Blood spots were found on it. It was taken into police possession.
8. The postmortem was also got conducted on the dead body of Raju.
PC remand of A1 was obtained. During remand, A1 further disclosed that he lied regarding the place where he threw his Pant and Shirt (Ex.P.17/1) which he was wearing at the time of incident. He disclosed that the said clothes were thrown by him in some Bushes in front of Peer Baba Ki Mazaar, Tilak Vihar. These clothes were subsequently recovered at his instance from some Bushes and taken into police possession vide Seizure Memo Ex.PW17/E.
9. The postmortem report Ex.PW9/A indicated that the time since death was approximately 1112 days prior to the Autopsy. The cause of death was Cranio Cerebral Injury. The injuries were antemortem in nature and of same duration. Injury no. 1 was sufficient to cause death in ordinary course of nature. The manner of death was Result: Acquitted Page 8 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Homicidal.
10. The opinion regarding weapon of offence Ex.PW9/B was also obtained to the effect that Injury no. 1 is possible by the stone if it is forcibly hit repeatedly over the face and head. The police draughtsman Mahesh Kumar had prepared the scaled site plan. The employer of accused No.2 Saroj Kumar namely Sh.Pravesh Mehta (PW11) was also examined. After conclusion of investigation, charge sheet was filed.
THE CHARGE :
11. Vide Order dt. 27.07.2013, A1 was accordingly Charged for committing murder of deceased Raju to the effect that some days prior to 07.03.2017, at unknown time on the second floor, roof of the Top Floor of H.No. M1, Sham Nagar, Tilak Nagar, New Delhi, he committed murder of deceased Raju by striking 'SILBATTA' (Lodi Result: Acquitted Page 9 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Stone) on his head. He pleaded not guilty and claimed trial.
12. All the three accused persons were also charged for committing offence Punishable U/s 201/34 IPC to the effect that all of them having knowledge or reasons to believe that Raju has been murdered, the evidence to that effect caused to disappear by covering the deadbody of Raju with Jute Sack and Brick and further hiding the same under Scrap in order to screening them from legal punishment. This Charge has been also not accepted and trial was claimed. PROSECUTION EVIDENCE (IN BRIEF) :
13. To prove its case, 18 Prosecution witnesses are examined.
14. Out of them, PW3 Sh.Umesh, PW4 Sh.Ramesh, PW7 Sardar Paramjeet Singh and PW11 Sh.Parvesh Mehta are public witnesses. PW3/Umesh and PW4 Ramesh merely identified the deadbody of deceased as PW3 is uncle of deceased Raju while PW4 is father of deceased Raju. PW7 Sardar Paramjit Singh is the owner of Premises Result: Acquitted Page 10 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) where murder took place. He is also the Employer of A1/ Manoj who was also his Employee at his Moti Nagar Confectionery shop. He was recalled vide Order dt. 09.01.2018 for crossexamination by the Prosecution U/s 154 Cr.P.C. regarding presence of accused Saroj Kumar at the time of recovery of deadbody.
15. PW11/Sh.Parvesh Mehta is the Prosecution witness who is Employer of A2 Saroj Kumar who had introduced himself as Manoj Kumar.
16. Rest of the witnesses of the Prosecution except PW9/Dr.Komal Singh and FSL Expert/PW12 Smt.Manisha Upadhyaya are Police officials.
17. Amongst the Police officials who visited the Crime Scene after receipt of DD no.107B, Ex.PW1/D and DD no. 108B Ex.PW1/E are ASI Dharampal (PW2), Ct.Arvind Kumar (PW16) and IO/Insp. Kishore Kumar (PW18). Rest of the members of the Police team Result: Acquitted Page 11 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) whose names are recorded in the brief facts above, have not been examined.
18. HC Jai Bhagwan was a cited witness at Srl.No.3 but he was dropped by the Prosecution on 14.12.2015.
19. Police officials who were part of the Mobile Crime Team, West District are its Incharge PW5/SI Azad Singh who visited the Crime spot alongwith Photographer Ct.Sukhram Pal (PW8) and Finger Print Expert HC Lalit Kumar (not examined). The Police Draughtsman who visited the Crime Scene on 30.04.2013 is Insp.Mahesh Kumar (PW10).
20. The case Exhibits were deposited at FSL, Rohini by Ct.Anil Kumar (PW6).
21. W/HC Ritu (PW13) had recorded the information about the PCR Call regarding the incident being Wireless Operator at PCR/PHQ.
22. The Police team which went to Village Firojpur, U.P. in search of Result: Acquitted Page 12 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) the accused persons comprising of several Police officials out of whom the witnesses examined by the Prosecution are PW14 W/HC Pushpa Rani, HC Deep Chand (PW15), SI Mohd.Haroon (PW17) and the case IO/Insp.Kishore Kumar (PW18).
23. The above therefore demonstrates that many of the relevant Police witnesses have not been cited as Prosecution witnesses though involved in the investigation.
DEFENCE :
24. The evidence produced by these witnesses was summarised and put to all the three accused persons in their Statements U/s 313 Cr.P.C. So far accused/A1 is concerned, it is his defence that the Victim Raju never resided with him in Delhi. He has denied the Prosecution's case while mentioning that he has been falsely implicated in this case and he never made any disclosure statement. He denies that the weapon of offence i.e. Stone (Silbatta) Ex.P.8 was Result: Acquitted Page 13 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) recovered at his instance. Although he has denied to lead evidence in defence but it is his defence that the deceased had bad habits of drinking and taking drugs. The deceased was having a bad company and he had also taken money from lots of people as Loan and had frequent fights about the repayment of the same with lots of Creditors. The Creditors of the deceased were ante social elements and had fight with the deceased lots of time prior to his death. He had cordial relations with the deceased.
25. The other two accused persons i.e. A2 and A3 have also denied their implication in the crime. According to A2, he never resided with his coaccused Manoj (A1) in Delhi in the premises bearing no. M1, Sham Nagar, Tilak Nagar, Delhi. While denying the Prosecution's case in totality, he claims that the allegations against him that he impersonated himself as Manoj (A1) to seek employment with PW11 is also incorrect. Like A1, he also claims that he never Result: Acquitted Page 14 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) made any disclosure statement. He denies that he or coaccused Rani Devi (A3) ever pointed out to the place of occurrence. He claims no knowledge that A1 was involved in the offence or led to recovery of Ex.P.8. Same is his stand regarding recovery of blood stained clothes of A1. According to him, when the incident took place, he was not present at the spot of incident. He also denied to lead Defence Evidence and further submitted that he was always living in the premises of his employer/PW11.
26. A3/Rani Devi also claims false implication. She is the wife of A
1. She has denied the Prosecution's case totally. She claims to have been wrongly arrested in the present case. Surprisingly, her own defence is also to the effect that she was not residing with coaccused Manoj (A1) at the time of incident. She also did not opt to lead any Defence Evidence.
27. This Court has heard Ms.Nimmi Sisodia, Ld.Prosecutor in support Result: Acquitted Page 15 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) of the Prosecution's case and Sh.Dhruva Bhagat, Sh.B.C.Jain and Sh.Absar Ahmad, ld. Counsels for all the three accused persons, who have all acted as Amicuscuriaes on behalf of the above named accused persons respectively.
28. Record has been perused carefully.
FINDINGS :
29. It is not in dispute that deadbody of deceased Raju was discovered on the ground floor room of H.No. M1, Sham Nagar, Tilak Nagar, Delhi and as per the IO, the said room has been shown at Point 'F' in the Scaled Site Plan Ex.PW10/A. Point 'F' is located inside the room situated on the ground floor of this premises. The body when found was highly decomposed.
30. The Charge dt. 27.07.2013 indicates that the time of offence is "some days prior to 07.03.2013" and the time is "Unknown". It indicates that the murder was committed at the second floor roof top Result: Acquitted Page 16 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) of H.No.M1, Sham Nagar, Tilak Nagar, Delhi. This Point is shown at Point 'A' in the Site Plan Ex.PW10/A which is located inside the room on the Second Floor Roof, Top Floor of this house. Identification of this spot i.e. Point 'A' is based on the investigation conducted by PW18/Insp.Kishore Kumar at the time of recovery of the deadbody. It is based on the blood spots and the trail of such blood spots which have been found between Point 'A' to Point 'F' indicating that the deadbody was shifted from this Point 'A' onwards from Second Floor Roof top to the entire length of the room situated in the ground floor of this house where Point 'F' is located. The blood spots are shown at Points B,C,D,E as well as F of the Site Plan Ex.PW10/A. Further, the determination of the place where the Victim was killed is based on Pointing out by A1 and his alleged disclosure statement.
31. Therefore, recovery of deadbody on the ground floor establishes Result: Acquitted Page 17 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) that the Crime took place inside the house.
32. Dr.Komal Singh (PW9) examined the deadbody on 09.03.2013 at 12:54 PM. The P.M.report is Ex.PW9/A. Brief history is recorded in the P.M.Report on the basis of Inquest papers which the witness admits to have gone through. The incident, as per the P.M.Report, took place on the night of 26/27.02.2013. This date is recorded in the disclosure statement of A1 Ex.PW15/B. It has been noted that the body was highly decomposed and soiled with mud and putrefied liquid. Even maggots were present over the skin and Cavities of whole body.
External examination revealed the following injuries :
" Lacerated wound of size 10 cm x 5 cm x bone deep present over the left frontotemporoparietal region with irregular margin with depressed/communited fracture of the left frontotemporo parietal bone with fractured fragments of lost bone and open cranial cavity with putrefied liquid brain matter coming out from Result: Acquitted Page 18 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) the fractured cranial cavity with fracture of anterior and middle cranial fossa with clotted blood present at the fracture side".
Internal examination indicated the following injuries :
"Head :
AScalp : Sub scalp bruised as mentioned in
above external injury.
B Skull : Fractured frontal bone as mentioned
in above external injury.
C Brain, Meanings
& Vessels : as mentioned in above external
injury.
D base of Skull : Fractured as mentioned in above
external injury".
Both lungs were found softened due to purification. The Opinion finally given by Dr.Komal Singh is that the death is due to cranio cerebral injury (head injury) caused by hard, forceful blunt Result: Acquitted Page 19 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) impact imparted over the head by heavy and hard object like Stone/Rod etc.
33. It is opined that all injuries are antemortem and same in duration. The first injury (as above) was sufficient to cause death in the ordinary course of nature. Subsequent opinion report on weapon of offence Ex.PW9/B revels that the Stony hard Piece of Stone i.e. Ex.P.8 could have been used for causing injury no.1 if it was forcibly hit repeatedly over the face and head.
34. Finally, the manner of death has been proven to be homicidal.
35. The above medical opinion therefore establishes that the deceased died an unnatural death and the manner of death is homicidal.
36. The question arises for consideration is whether this culpable homicide amounting to murder has been proven beyond all reasonable doubts to be the handi work of A1 ?
37. This Court is afraid to note that the answer to the question as Result: Acquitted Page 20 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) above is in 'Negative'. The case of the Prosecution is riddled with contradictions from the very beginning. Not only are there contradictions but there are unexplained facts which creates serious doubt on the Prosecution's version.
38. To begin with, the Prosecution has not examined/clarified about the person who made the PCR Call upon which not One but Two DDs were recorded i.e. DD no.107B Ex.PW1/D at 10:23 PM and DD no. 108B Ex.PW1/E at 10:29 PM. PW7/Sardar Paramjit Singh states in his examinationinchief that he called no.100 during his way to the house/spot of incident and informed about foul smell. His statement U/s 161 Cr.P.C. is Mark PW7/PX. His Mobile Number recorded therein is 9311112313. This number is also reflected in DD no. 107B. The relevant PCR Form is on record but it has not been proved. Perusal of the PCR form reveals that name of the Caller therein is Dinwant Singh and the information therein is Result: Acquitted Page 21 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) "M1, Sham Nagar, Khyala Road Opposite Bank of India, Caller Bol Raha Hai Ki above Add Se Badboo AA Rahi Hai". Similar type of information is recorded though differently in DD no. 107B and thus even though the PCR Form is not proved, it can be safely affirmed that PW7/Sardar Paramjit Singh was one of the first person who made PCR Call. However, information recorded in the PCR Form and information recorded in DD no.107B Ex.PW1/D are different. It is so as in DD no.107B Ex.PW1/D, it is recorded that foul smell is coming from 'behind' H.No.M1, Sham Nagar. The Telephone number above might not be registered in the name of PW 7 and even the testimony of PW7 does not clarify as to what was the telephone number with which he called the PCR. However, the fact that the Mobile Number in DD no.107 B, Ex.PW1/D tallies with the PCR Form is sufficient to establish that the call was made.
Result: Acquitted Page 22 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
39. The subsequent DD no. 108B Ex.PW1/E is of 10:29 PM.
Information recorded therein is that a lady's deadbody is lying in the Prakash Dairy Wali Gali, Khyala Road, near Sheetla Mata Mandir. Caller's Phone number is recorded as 9582863836. Relevant PCR form is proved which is Ex.PW13/A. The Mobile Number shows that the name of caller is one Manish. His address is also recorded in PCR Form and the information therein is "Sheetla Mandir Ke Paas, Khyala Road, Prakash Dairy Wali Gali, Subhash Nagar, Tilak Nagar, Ek Deadbody hai, pata nahi hai lady hai man". Thus, again there is a difference in information received in the Control Room and the information relayed to PS Tilak Nagar. Caller Manish was never examined nor cited as witness.
40. What makes the fact interested regarding information recorded is that this Caller was unsure about the Gender of the deadbody as per the PCR Form. However, as per corresponding DD no.108B, Result: Acquitted Page 23 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) information relayed is that the deadbody was of a lady. The house where the incident took place is M1, Sham Nagar, Tilak Nagar, Delhi. Thus, even though the first Caller who is PW7/Sardar Paramjit Singh gave information that foul smell was coming from behind M1, Sham Nagar, Delhi, the second caller knew that a deadbody was lying at the spot. He knew it (as per the PCR Form) at 22:23:47 hours. It implies that this Caller was present and witnessed the deadbody before making the call. The deadbody was highly decomposed which is proven by the witnesses including Dr.Komal Singh (PW9). Non examination of this witness (Manish) is therefore fatal to the Prosecution for the reasons which are recorded in the next paragraph.
41. As per PW7, he received a call from his neighbour (who has never been examined) that foul smell was coming from M1, Sham Nagar. He immediately left for this premises being its owner. During Result: Acquitted Page 24 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) his way, he was informed that the smell is not of Dog/Cat but something serious. He then called the PCR and informed about foul smell. (The information is not to the effect that foul smell was coming from inside the premises but behind it).
When he reached the premises, Police had also reached there. Thus, Police and PW7/Sardar Paramjit Singh reached at the premises simultaneously.
I have already pointed out that in response to the above two DDs, the Police officials who responded were ASI Dharampal (PW2) and Ct.Arvind (PW16).
According to PW7, accused Saroj (A2) was informed by him to reach at the premises and he had reached. As per the witness, this accused Saroj (A2) had Key of the main gate with which he opened it. This is not the Prosecution's case as per his statement Mark PW7/PX.
Result: Acquitted Page 25 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) It is precisely for this reason that the witness was subsequently allowed to be recalled for crossexamination by the prosecution that was recorded on 21.04.2018. In the said cross examination, the witness maintained his stand that Saroj had reached the premises on the date of incident and opened main gate of house with the Key available with him. He even denied that he made statement to the Police Mark PW7/PX when confronted with Portion A to A.1 which records that Saroj had not reached the spot despite calling.
42. As a matter of fact, it is never the case of the Prosecution that Saroj Kumar/A2 ever arrived at the spot. It is the Prosecution's case that Saroj Kumar/A2 was absconding and arrested only alongwith A 3 on 08.03.2013. However, as per PW7/Sardar Paramjit Singh, Saroj was arrested on the spot on the very day when the deadbody was recovered.
Result: Acquitted Page 26 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
43. Nevertheless, PW16 Ct.Arvind Kumar as well as ASI Dharampal (PW2) are absolutely silent about the presence of accused Saroj Kumar (A2) on the spot. They also do not depose that when they reached the premises, PW7/Sardar Paramjit Singh met them outside the house. They are also silent as to whether the premises was locked or unlocked when they reached there. According to them, the ground floor was lying vacant and on inspection, the deadbody was found in one room under the Scrap. They do not disclose as to whether they had to open the lock or they had access inside the house if it was lying opened.
44. Reverting back to the above observation regarding non examination of Caller Manish is fatal to the Prosecution, I would now point out that if the said Caller was able to witness the fact that the deadbody was already there on the spot, he must have had access to the deadbody which was admittedly found inside this house at Point Result: Acquitted Page 27 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) 'F' in the Site Plan Ex.PW10/A. Such a crucial witness was therefore essential to explain the facts properly. Even the Prosecution failed to point out the fact as to whether the above two Police officials had found the main door open or had to unlock it. Contradictions to their testimonies stares the Prosecution in the face when PW7 introduces presence of Saroj Kumar on the spot who opened the lock of the premises. Thus, if PW7/Sardar Paramjit Singh is to be believed, then accused Saroj Kumar (A2) would have been arrested on that date itself i.e. 06/07.03.2013 and not on 08.03.2013.
45. The next point pertains to absence of any evidence regarding presence of A1, A2 and A3 at the spot of incident on or before the night of occurrence i.e. 26/27.02.2013 or just prior thereto.
46. As per report of Mobile Crime Team Ex.PW5/A which inspected the incident place on 07.03.2013 between 11:30 to 12:25 AM, the date and time of occurrence is 'unknown'. As per the IO's request for Result: Acquitted Page 28 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Postmortem examination on the deadbody Ex.PW18/A, the date and time of Crime is the night of 26/27.02.2013. Case of the Prosecution is that A1 to A3 were all residing together in H.No.M1, Sham Nagar, Delhi. Case of A2 is that he never resided in that premises as he used to reside with his employer PW11/Sh.Parvesh Mehta. As per PW11/Sh.Parvesh Mehta, A2 had introduced himself as Manoj Kumar and was working with him till March, 2013. According to him, the accused was taken away from the factory on 05/06.03.2013 which establishes that A3 was not absconding. His date of arrest is 08.03.2013. Thus, even after the commission of crime, he was working at his Employer's factory till 05.03.2013 and the copy of Attendance Register for March, 2013 is proven as Ex.PW11/D showing name of A2 at Srl.No.2.
47. In his crossexamination by this accused, he stated that, "It is Result: Acquitted Page 29 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) correct that there is arrangement for the stay of workers at my factory. (vol.factory is situated at second floor and the accommodation for stay of workers is at third floor). In Feb, 2013, the accused/A2 was residing in my factory at the above mentioned accommodation. It is correct that accused Saroj Kumar did not take any leave on 26/27.02.2013".
48. Thus, own witness of the Prosecution establishes that A2 was working with him in February, 2013 and resided in his factory only. Prosecution's case that he stayed with A1 and A3 stands falsified in view of this testimony. It also stands falsified to the extent which shows that accused Saroj Kumar/A2 had been absconding since after the incident.
49. So far as A3 is concerned, it is her defence that at the time of incident, she was not residing with A1 in H.No.M1, Sham Nagar, Delhi.
Result: Acquitted Page 30 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16)
50. No witness has been produced by the Prosecution to establish as till what time and date, the accused persons were available in H.No. M1, Sham Nagar, Tilak Nagar, Delhi, if at all they were. In this context, testimony of PW7/Sardar Paramjit Singh is of some relevance to the Prosecution as this witness stated that all the three accused persons used to reside on Top Floor of M1, Sham Nagar, Delhi as Manoj Kumar (A1) was his employee at his Confectionery Shop. This version cannot be correct as another witness of the Proscution i.e. PW11/Sh.Parvesh Mehta shows that atleast in February, 2013, A2 was residing in his factory and not in the premises bearing No. M1, Sham Nagar, Delhi. Moreover, the witness has damaged the Prosecution's case extensively by introducing the version that accused Saroj Kumar (A2) had arrived at H.No. M1, Sham Nagar, Delhi on the date of recovery of deadbody and had opened the lock of the main door with the Key available with him.
Result: Acquitted Page 31 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) The Prosecution did not realize this flaw at the relevant time, though it eventually did and prayed for recall of PW7 for limited purpose of crossexamining him U/s 154 Cr.P.C. which was done on 21.04.2018. I have already pointed out that he categorically denies to have made the above statement at Mark A1 to A2 in his statement Mark PW1/PX.
51. What follows is that may be at one point of time, all three accused persons were residing together but what does not follow is that all the three of them were actually residing together in this premises on or just before the actual date of incident i.e. the night of 26/27.02.2013.
52. Thus, there is no witness to establish that any of the accused was seen staying or leaving this premises soon before the murder took place. It therefore creates a lacuna in the Prosecution's case as the accused persons may not be available in the premises since long before the actual date of incident. It was necessary for the Prosecution Result: Acquitted Page 32 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) to establish that all the three accused persons were available in this house at the time of incident. Had the Prosecution proved this, the Court would have drawn an inference against the accused persons U/s 106 of the Indian Evidence Act, 1872 on their inexplanation regarding their activities on the night of offence took place.
53. What is ostensibly absent in the investigation is investigation by the IO with respect to that part of the disclosure statement wherein deceased Raju, even as per the Chargesheet, is stated to have made a PCR Call due to verbal altercation between him and his uncle A1 on the fateful night regarding saying of indecent words to his wife A3. Chargesheet reveals that the PCR Call made by Raju upon which the officials from PS Tilak Nagar had taken A1 to the PS and he was relieved from there in late night. Incident of murder allegedly took place soon thereafter. This aspect could have been verified from the PCR Call records or records of the PS itself and would have establish Result: Acquitted Page 33 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) conclusively whether the accused persons were indeed present in the house M1, Sham Nagar, Delhi just before the incident took place.
54. I have already pointed out that the Prosecution does not establish if the premises was lying opened or lying locked. Information recorded regarding presence of deadbody in the PCR Form Ex.PW 13/A also introduced the possibility that the caller making the PCR Call would have actually seen this deadbody which would not have been possible until he was inside the room in the house where the deadbody was eventually found i.e. Point 'F' in the Site Plan Ex.PW10/A.
55. Nevertheless, it cannot be disputed from the trail of the blood spots from the Top Floor to the ground Floor room of the house that the murder did take place at the Top Floor room of this house and the deadbody was indeed shifted from the Top Floor room of the house to the Ground Floor room of the house. However, it is not proven Result: Acquitted Page 34 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) that this act was 'handi work' of the present accused persons.
56. There is another glaring discrepancy that stares the Prosecution right in its face and could not be explained at all. First two persons reaching the spot as per the Prosecution are PW2 ASI Dharampal and Ct.Arvind (PW16). Thus, ASI Dharampal (PW2) discovered the deadbody and it is evident from his examinationinChief also. According to him, the deadbody was wearing an Underwear and one cloth was wrapped near his underwear. Upper portion of the deadbody was without any cloth. The Crime team mentioned in its report Ex.PW5/A that the highly decomposed male body was found in Underwear only. It makes no mention of cloth wrapped around the Underwear.
57. Next, the deadbody is preserved in the hospital Mortuary and an Autopsy was performed on it on 09.03.2013. As per Postmortem report Ex.PW9/A, the Autopsy Surgeon found the deadbody wearing Result: Acquitted Page 35 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) a White Baniyan torn and brown Underwear.
58. Seizure Memo Ex.PW15/D reveals that the hospital Surgeon had provided a Pullanda sealed with the seal of DFMT, DDUH stated to be containing a White Baniyan and Brown colour Underwear of the deceased. It is precisely these clothes which were subject matter of the comparison Report of the FSL Expert/PW12 Smt.Manisha Upadhyaya. Parcel no.13 contained one dirty damp foul smelling brownish blackish Banian as Ex.13a and one dirty damp foul smelling brownish blackish Underwear as Ex.13b. Biological Analysis upon these exhibits showed "no reaction" for species of the origin of the blood that was detected upon these exhibits in view of FSL Report Ex.PW12/A.
59. Photographs of the Crime Scene are on record which were clicked by the Crime team members. It can be seen clearly from the Photographs A.7 and A.8 that the deadbody is only wearing the Result: Acquitted Page 36 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Underwear and not any Vest. Even, PW16/Ct.Arvind is silent about the clothes of the deadbody.
60. The fact therefore remains that the deadbody which was found only in underwear was later found to be also wearing a white colour Vest. As to who put it on the deadbody is not explained. This, according to me is an anomaly of such nature that puts the manner of investigation itself into extreme doubt. To top on it, absence of explanation even by the case IO is damaging none other than the Prosecution itself.
61. I shall now come on the aspect of recovery of the weapon of offence i.e. SilBatta Ex.P.8. The Seizure memo Ex.PW15/C of it reveals that A1 had pointed out to a room on the Top floor of the house M1, Sham Nagar, Delhi as the place where he had left the weapon of offence. According to Seizure Memo, the accused himself picked up this Stone from a corner of the room upon which the blood Result: Acquitted Page 37 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) spot was found present. This recovery is purportedly made on 08.03.2013. As to why the IO allowed the accused to handle the weapon of offence again while recovering it is a serious lapse as such act left the possibility of lifting Chance Prints form the Stone as almost 'Nil'.
62. I shall now point out from the Site Plan as to the place from where Ex.P.8 was recovered. This place as per Ex.PW10/A is shown at Point 'G'. Point 'G' is located inside a room on Top floor of this house and it is the same room where the murder was committed at Point A. Thus, the Police which investigated and inspected this room on the first occasion i.e. the night of 06/07.03.2013 and found pool of blood in this room failed to locate this object which admittedly had blood upon it. Same is the answer with ASI Dharampal (PW2).
63. According to the accused, the recovery is planted upon him. It actually does not stand to reason as to how the IO would fail to Result: Acquitted Page 38 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) observe the presence of the part of SilBatta i.e. Batta/Stone and does not get surprised as to where its other part was. This piece of evidence was also sent for Forensic examination and as per report Ex.PW12/A, this piece of Stone described as SilBatta is Ex.16. Blood was detected upon it. As per Forensic Division Report Ex.PW 12/B, the blood upon it was of 'human' origin. RH Factor or blood grouping is not provided in all the reports. Blood group of the Victim is unknown. It is not proven that the blood of the Victim was found on Ex.P.8. Thus, the recovery also looses its significance.
64. It is also not explained as to where the A1 would have changed his clothes as his own clothes which he was wearing at the time of commission of murder became blood stained. As per Seizure Memo dt. 10.03.2013 Ex.PW17/E, A1 got these clothes recovered from the Bushes inside the Park situated in front of Peer Baba Mazaar, Double Storey, Harijan Colony, Delhi. The clothes were inside a Result: Acquitted Page 39 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) black colour Polybag. The Prosecution should have explained the above fact to connect all the circumstances against the accused, which has not been done. It is also not understandable that if the accused had initially fled with A3 to his Native place then why he will not destroy these clothes and kept them hidden for them to be later recovered at the convenience of the IO. It cannot be lost sight of that the place of recovery of these clothes is a public place accessible to everyone and no independent public witness was involved to authenticate the recovery.
65. The entire version of the Prosecution witness of having visited the Native place of the accused/A1 i.e. 'Lala Ka Poorva' on 07.03.2013 is also shrouded in doubt. Firstly, all the team members have not been cited as witnesses. Secondly, as per HC Deep Chand, they left from PS on 07.03.2013 at 06:00 AM after making departure entry. It is not proved. He cannot recollect the other destinations Result: Acquitted Page 40 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) falling in the way even though he covered distance of around 425 Kms. on one side. They reached Village Lala Ka Poorva at noon time. They then proceeded to Ajeet Pur where they reached at 04:00 PM but he had no idea about the distance between Village Lala Ka Poorva and Ajeet Pur.
66. PW17/SI Mohd.Haroon also states that they departed PS on 07.03.2013 for Lala Ka Poorva at 06:10 AM in two private vehicles. IO had received secret information that all the accused persons had not gone there but their presence is possible in the house of Inlaws of A1 in Ajeet Pur. Hence, the team had proceeded for Ajeet Pur. When crossexamined on this aspect, he stated that the team reached the Village in the afternoon and the local person told the IO about the presence of accused in Ajeet Pur. They reached Ajeet Pur at about 04:00 or 05:00 PM. The team took route of Fatehpur, U.P. via Noida, Agra, Kanpur Road. He also stated that the departure entry Result: Acquitted Page 41 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) was made in DD Register. He admitted that IO did not have the exact address of the accused even though Sardar Paramjit Singh (PW7) had disclosed about it to him.
67. Even the circumstances regarding the arrest of accused persons in the manner stated is not supported by independent supporting evidence. As per the Prosecution's case, if PW7 is to be believed then one of the accused i.e. A2/Saroj Kumar was present on the day when the deadbody was recovered i.e. 07.03.2013 and his arrest was effected on the same day by the police vide Memo Ex.PW7/A and Personal search memo Ex.PW7/B which was signed by this witness at Point A. According to him, he gave address of A1/Manoj to the police which apprehended Manoj on the next day from his Native Place and Saroj was accompanying the police at that time.
68. This is not the case. Firstly, A2, as per the Arrest memo and the testimonies of arresting officials, was arrested on 08.03.2013 and Result: Acquitted Page 42 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) indeed PW7 had signed on these memos. Testimony of PW18/IO Insp.Kishore Kumar reveals that a police team had visited Village Lala Ka Poorva in Fatehpur, U.P. and thereafter to Ajeet Pur on 07.03.2013. The arrest of A2 is on subsequent date i.e. 08.03.2013. if PW7 had signed on the Arrest memo of this accused on the day of recovery of deadbody, then he could not say that Saroj had been already under arrest when the police went to Native place of Manoj Kumar and arrested Manoj Kumar from there. As a matter of fact, even Manoj Kumar has been apprehended in Delhi only. Police reached back to Delhi in the morning of 08.03.2013 and the IO met landlord Paramjit Singh who informed that Saroj Kumar worked as an Embroider and will be meeting his employer to receive his salary on 08.03.2013 after which he was apprehended from the Embroidery shop at 03:00 PM upon identification of Paramjit Singh.
69. Paramjit Singh has not said anything in his testimony to support Result: Acquitted Page 43 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) the above. Rather, if his testimony is to be believed then A2 would have been arrested sometime in the intervening night of 06/07.03.2013 after which he accompanied the police team to Lala Ka Poorva. The arrest of A2 is doubtful.
70. As per Prosecution, after arrest, Saroj disclosed that A1 and A3 will come to Khyala Bus Stop no. 830. The Police team apprehended them when they were approaching towards the bus stop at the instance of Saroj/A2. The Arrest Memo of Manoj Kumar is Ex.PW 17/A and the Arrest memo of accused Rani Devi/A3 is Ex.PW14/A. If Saroj Kumar/A2 was present at the time of their arrest, then, signatures of Saroj Kumar/A2 have not been taken on these Arrest Memos. There is no investigation on record regarding whereabouts of the accused persons post the date of recovery of deadbody. As a matter of fact, there is no investigation at all on record to disclose about the activities of the accused persons between the date of Result: Acquitted Page 44 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) incident and the date of alleged arrest. No public witness has been joined to the proceedings.
CONCLUSION :
71. In view of above discussion, I am of the considered view that the Prosecution has failed to prove its case beyond reasonable doubt. Consequently, benefit of doubt is given to all the accused persons. Accused persons namely Saroj Kumar (A2) and Rani Devi (A3) are acquitted for the offences Punishable U/s 201/34 IPC. Accused Manoj is acquitted for the offences Punishable U/s 302 IPC and 201/34 IPC.
All the three accused persons have already furnished PBs/SBs for Rs.25,000/ each (Rupees Twenty five thousand each) with one surety each in the like amount, in view of Section 437A Cr.P.C. in terms of previous order. Sureties are present. Their PBs/SBs are accepted for a period of six months from today.
Result: Acquitted Page 45 of 46State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi) on 27.09.2018 ASJ05(W)/THC Delhi/27.09.2018(P) Digitally signed by MANISH YADUVANSHI MANISH YADUVANSHI Date: 2018.10.04 15:18:17 +0530 Result: Acquitted Page 46 of 46 State Vs. Manoj Kumar etc. FIR 121/13 (5665/16) Result: Acquitted Page 47 of 46