Delhi District Court
State vs Ramanand Kumar on 2 December, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-08, WEST
DISTRICT TIS HAZARI COURTS, DELHI
Presided by: Hem Raj, DHJS
CNR No. DLWT01-000327-2012
SC No. 56743/2016
FIR No. 190 /2012
PS: Vikas Puri
U/s 302/365/201/34 IPC
In the matter of:-
State
Versus
1. Ramanand Kumar @ Sagar
S/o Sh. Madan Kumar
R/o X-7, Phase-1, Budh Vihar, Delhi
2. Deepak Kumar
S/o Sh. Ramanand Singh
R/o H. No. C-186, Sec-44,
Noida, Goutam Budh Nagar, UP.
.......Accused persons
Date of Institution of case : 25-10-2012
Date of reserving for Judgment : 07-10-2024
Date of pronouncement of judgment : 02-12-2024
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 1/52
Appearance:
For the State : Sh. Himanshu Garg, Ld. Addl. Public
Prosecutor.
For accused : Sh. R.S Malik and Sh. Sahil Malik, Ld. Counsel.
JUDGMENT
1. Both the accused Ramanand Kumar @ Sagar and Deepak Kumar were made accused by SHO PS Vikas Puri, who filed a charge-sheet against them for the offences u/s 365/302/201/34 IPC.
The case of the prosecution:
2. Both the accused alleged to have killed one Rakesh S/o Anil Kumar. Vide DD No. 17A at about 10:50 am dated 12.07.2012, PS Vikas Puri, PW-2 Deepesh Kumar lodged a report with the PS Vikas Puri about missing of his brother Rakesh, who was missing since 4 pm last evening. In the said DD, he stated that his brother, namely, Rakesh about 4 pm on 11.07.2012 had gone to meet his cousin at Budh Vihar and as per the statement of his cousin, he left their house at about 8 pm but has not reached his own house. His motorcycle was also seen at nala. On the next date, he got his statement Ex. PW-2/A recorded upon which the FIR was registered. In the said statement, he mentioned about missing report lodged by him and also mentioned about accused Ramanand @ Sagar. He also mentioned that he has been informed by Ramanand @ Sagar that deceased Rakesh Kumar was with him till 7:45 pm on 11.07.2012. However, PW-2 stated that Ramanand @ Sagar was changing his State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 2/52 statements frequently and he had a suspicion that Ramanand @ Sagar has abducted his brother.
On the aforesaid statement, PW-31, SI Rajbir Singh registered an FIR u/s 365 IPC. During the investigation, PW-31, SI Rajbir Singh received secret information that a dead body of a male was recovered from the area of PS Sector 39, Noida, U.P. Before the receipt of the said information, the complainant PW-2 and the suspect Ramanand @ Sagar were present in the PS. After receipt of the information, he thoroughly interrogated suspect Ramanand @ Sagar, who confessed his guilt to the fact that he along with another co-accused, namely, Deepak Kumar his brother-in-law (jija) committed murder of deceased Rakesh. Police officials informed the brother of deceased about the recovery of male dead body with a request to identify if the same is of deceased Rakesh and then. proceeded for Noida. In the mid- way to Noida, SI Rajbir received intimation confirming the dead body to be that of deceased Rakesh. At Noida, accused Ramanand @ Sagar had shown the police party the place of commission of offence and place where the body was thrown. The co-accused Deepak Kumar was also visited at Sector 44, Noida, but he could not be found. The police officials from Delhi also reached at PS of Sector 39, Noida and informed the duty officer about the purpose of their visit. Duty officer of PS Sector 39 Noida informed them that a dead body had already been recovered. The SHO PS Sector 39 was called in the police station, who briefed SI Rajbir.
Further investigation of the case was handed over to PW- 32, Insp. Ram Chander. By that time, both the accused had State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 3/52 already been arrested by SI Rajbir. Both the accused took the IO to house no. C-186, Sector 44, Noida where accused Ramanand @ Sagar pointed out towards a car bearing registration no. DL 4CAX 7777 outside the house. The car was opened by having the keys from accused Deepak and he produced one knife lying underneath the mat lying near the seat beside driver's seat. The knife was seized by police. The said car was got inspected by the FSL team on 25.07.2012 by the police.
The police custody of the accused persons were obtained and the clothes of the deceased were tried to be searched at ganda nala, new Ashok Nagar but the same could not be recovered. Accused Deepak also got recovered one mobile phone allegedly having been used by him in the commission of the offence. Thereafter, both the accused persons led the police party at Japani Park at Rohini Sector 10/11 where they allegedly burnt the clothes and mobile phone of the deceased. IO also found some burnt material there.
On the next date i.e. 16.07.2012 again, the police remand of accused persons was obtained. The accused persons led the police at Legend Bar, Sector 3, Rohini, where they allegedly had consumed the alcohol along with deceased on the date of the incident. PW-4 Anil Kumar Pandey and PW-5 Babloo Kumar (waiter) were examined and IO recorded their statements. They have allegedly stated to the IO that the deceased was with the accused persons.
During investigation, the evidence was collected, samples were taken and same were sent to the FSL, statements of the State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 4/52 witnesses were recorded and after completion of investigation, prosecution filed charge-sheet u/s 365/302/201/34 IPC.
3. The Ld. Magistrate committed the case to the Court of Sessions after compliance of the relevant provisions.
The charge against the accused persons:
4. Both the accused namely Ramanand Kumar @ Sagar and Deepak Kumar did not plead guilty to the charge for the offences u/s 365/302/201/34 IPC and claimed trial.
The evidence by the prosecution:
5. To prove the afore-mentioned charge against the accused persons, the prosecution has led the following oral evidence as well as documentary evidence:-
Oral evidence PW-1 Sh. Ramanand Father of accused Deepak who is registered owner of vehicle no. DL 4CAX 7777 make Mahindra XUV-500.
PW-2 Deepesh Kumar The complainant and brother of deceased.
He also deposed about the investigation carried out by the police officials in his presence.
PW-3 Ct. Narender He took one sealed pullanda to the FSL Rohini PW-4 Sh. Anil Kumar The security guard at Legend Restro Bar. Pandey PW-5 Babloo Kumar The waiter at Legend Restro Bar. PW-6 Dharampal The watchman who saw the dead body of deceased and informed the Noida Police.
He also deposed about the investigation done in his presence.
PW-7 Ms. Seema Lab technician at Acharya Bhikshu State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 5/52 Hospital. She and accused Ramanand @ Sagar used to work together in Star Amazing and she identified the accused in the court.
PW-8 Sh. Ombir The owner of motorcycle no. DL 9S AA
Singh 5164 make Pulsar , which was taken by
the deceased from him on 10.07.2012.
PW-9 ASI Ravinder Being the duty officer, he deposed about
Kumar the registration of FIR in the present case
on receipt of rukka handed over by ASI
Rajbir Singh on 13.07.2012.
PW-10 Sh. R.K Singh The Nodal Officer, who proved the record pertaining to mobile no. 9871023273 issued in the namely of Sh. Deepak Singh PW-11 HC Lehri The MHC(M), who proved the relevant Ram entries made by him in register no. 19 at relevant time.
PW-12 Ct. Jitender He deposed about depositing of case property by him in the FSL Rohini on 04.09.2012 and 21.09.2012.
PW-13 Naseeb Singh He alongwith brother of deceased namely Deepesh identified the dead body of deceased in the mortuary.
PW-14 Inspector Draftsman, who prepared the scaled site
Mahesh Kumar plan of the spot.
PW-15 Sh. Ishrar Alternate Nodal Officer, Vodafone who
Babu proved record pertaining to mobile no.
9711135335 issued in the name of Rakesh
Kumar.
PW-16 Sh. Shishir Nodal Officer, Aircel Limited who proved
Malhotra record pertaining to mobile no.
7503696054 issued in the name of Smt.
Seema.
PW-17 Dr. Bhajan Lal Sr. Medical Officer who conducted postmortem on the dead body and prepared his PM report no. 672/12.
PW-18 Ms. Seema Sr. Scientific Officer (Biology) who Nain proved her reports Ex.PW-18/A and
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 6/52 Ex.PW-18/B in the court.
PW-19 Ct. Hari He deposed about the investigation
Shanker of Noida conducted by SHO in his presence at
Police Kitna Park, Sector 132 Noida where a
dead body of a male person was informed
to be lying.
PW-20 Sh. Prem He took photographs of the dead body
Sharma lying at Kitna Park, Sector 132 Noida on
the instructions of senior police officers.
PW-21 SI Mahinder He proved FIR No. 339/2012 U/s 302/201 Singh Pawar IPC, Crime no. 448/12 PS Noida, Sector
-39 and GD Rojnamcha no. 22 prepared by Ct. Kuldeep Singh.
PW-22 HC Rishi He deposed about the investigation Kumar conducted by the IO on 14.07.2012 in his presence.
PW-23 SI Abhishek He deposed about the investigation conducted by him in the case on 15.07.2012.
PW-24 Ct. Virender He deposed about his role in the
Singh investigation on 01.10.2012 and
03.10.2012
PW-25 Retd. HC Being posted as MHC(M) on 28.08.2012
Babu Khan at PS Sector -39, Gautam Bugh Nagar,
Noida, he deposed about deposition of
case property in the Malkhana in case FIR
No. 448/12 and handing over 12 parcels
to the IO of case FIR No. 190/2012 PS
Vikas Puri.
PW-26 Ct. Yogesh He joined the investigation on 14.07.2012
Malik and deposed about the same in the court.
PW-27 ASI Satpal He proved the relevant entries made in
Singh register no. 5 by HC Babu Khan, who had
since been retired.
PW-28 SI Pawan He joined the investigation on 14.07.2012
Kumar and deposed about the investigation
conducted by him in the case.
PW-29 Circle Officer He deposed about the investigation done State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 7/52 Shyamakant Tripathi, by him on 12.07.2012.
SHO of PS Sector-39, Noida PW-30 Ct. Sunil He joined the investigation with SHO and Ct. Hari Shankar on 12.07.2012 and deposed about the investigation done in his presence.
PW-31 SI Rajbir Being the first IO, he deposed regarding Singh the investigation conducted on 12.07.2012 and 13.07.2012. His examination could not be conducted on account of his death.
PW-32 Retd. Being the IO, he deposed about the
Inspector Ram investigation conducted by him in the
Chander present case.
Documentary evidence:
Ex. PW-1/A Superdarinama of vehicle no. DL4CAX
7777 make Mahindra XUV-500
Ex. PW-2/A Statement of complainant Sh. Deepesh
Kumar recorded by the IO
Ex. PW-2/C Written request for postmortem given by the
complainant
Ex. PW-4/A Statement of Sh. Anil Kumar Pandey
Ex. PW-5/A Statement u/s 161 Cr.P.C of Sh. Babloo
Kumar given to the IO
Ex. PW-6/A The information given by Sh. Dharampal,
the chowkidar regarding dead body
Ex. PW-6/B Panchnama of dead body of deceased
Ex. PW-7/A Copy of Voter Identity card of Ms. Seema
on whose ID accused Ramanand @ Sagar
purchased a SIM Card
Ex. PW-8/A Superdarinama in respect of motorcycle no.
DL 9S AA 5164 owned by Sh. Ombir Singh
Ex.PW-8/B Photocopy of RC of motorcycle no. DL 9S
AA 5164
Ex. PW-8/C Photocopy of duplicate RC of motorcycle
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 8/52 no. DL 9S AA 5164 Ex.PW-8/DA Statement u/s 161 Cr.P.C of Sh. Ombir Singh Ex. PW-9/A Photocopy of FIR no. 190/12 PS Vikas Puri Ex. PW-9/B Endorsement of DO ASI Ravinder Kumar on rukka Ex.PW-9/C Certificate u/s 65 B IEA in support of computerized FIR Ex. PW-10/A CAF pertaining to mobile no. 9871023273 issued in the name of Sh. Deepak Singh Ex. PW-10/B Driving license of Deepak Singh Ex. PW-10/C Customer Subscriber Declaration Form Ex. PW-10/D APEF FTR Check Sheet Ex. PW-10/E Call detail record of mobile no.
9871023273 w.e.f 01.07.2012 to 11.07.2012 Ex. PW-10/F Cell ID chart pertaining to mobile no.
9871023273
Ex. PW-10/G Certificate u/s 65B IEA
Ex. PW-11/A Entry at sl. no. 1944 in register no. 19
Ex. PW-11/B Entry at sl. no. 1954 in register no. 19
Ex. PW-11/C Entry at sl. no. 1958 in register no. 19
Ex. PW-11/D Entry at sl. no. 2005 in register no.19
Ex.PW-11/E Entry at sl. no. 2139 in register no. 19
Ex. PW-11/F The copy of RC no. 60/21/12
Ex. PW-11/G Acknowledgment of case acceptance
Ex.PW-11/H Copy of RC no. 72/21
Ex.PW-11/J Acknowledgment of case acceptance
Ex. PW-11/K Copy of RC no. 52/21/12
Ex. PW-14/A Scaled site plan
Ex. PW-15/A CAF pertaining to mobile no. 9711135335
issued in the name of Rakesh Kumar
Ex.PW-15/B Tariff Enrollment Form and Election
& identity card of Rakesh Kumar
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 9/52
Ex.PW-15/C
Ex. PW-15/D CDR of mobile no. 9711135335 w.e.f
01.03.2012 to 11.07.2012
Ex. PW-15/E Cell ID chart of mobile no. 9711135335
Ex. PW-15/F Certificate u/s 65 B IEA in support of CDR
of mobile no. 9711135335
Ex. PW-16/A CAF pertaining to mobile no. 7503696054
Ex. PW-16/B CDR of mobile no. 7503696054 w.e.f
01.07.2012 to 13.07.2012
Ex. PW-16/C Cell ID Chart mobile no. 7503696054
Ex. PW-16/D Certificate u/s 65B(4)(c) IEA
Ex. PW-16/E Covering letter issued by Sh. Shishir
Malhotra, Nodal Officer
Ex. PW-17/A Postmortem report no. 672/1
Ex. PW-18/A FSL report regarding mechanical
examination of vehicle no. DL4CAX 7777
Ex. PW-18/B Detailed report for DNA examination
Ex. PW-20/A to A6 Photographs of dead body
Ex. PW-21/A GD Roznamcha No. 22 dated 12.07.12 PS
Sector -39 Noida
Ex. PW-22/A Arrest memo of accused Ramanand
Ex. PW-22/B Personal search memo of accused
Ramanand
Ex. PW-22/C Disclosure statement of accused Ramanand
Ex. PW-22/D Pointing out memo of place of occurrence
Ex. PW-22/E Arrest memo of accused Deepak
Ex.PW-22/F Personal search memo of accused Deepak
Ex.PW-22/G Disclosure statement of accused Deepak
Ex. PW-22/H Seizure memo of key of are no. DL4C AX
7777 XUV 500.
Ex. PW-22/I Seizure memo of knife
Ex. PW-22/J Sketch of knife
Ex. PW-23/A Supplementary disclosure statement of
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 10/52 accused Deepak Kumar Ex. PW-23/B Supplementary disclosure statement of accused Ramanand Ex. PW-23/C Seizure memo of mobile phone recovered at the instance of accused Deepak.
Ex. PW-23/D Seizure memo of ashes of clothes and
mobile phone of deceased at the instance of
accused Ramanand Kumar
Ex. PW-23/A1 Photograph of ashes
Ex. PW-23/A2 The mobile phone make LG recovered from
accused Deepak
Ex. PW-23/A-3 Ash lifted by the IO from Japanese Park
Ex. PW-24/A Seizure memo of documents pertaining to
mobile nos. 9711135335, 9871023273 and
750369054
Ex. PW-26/A1 to Photographs of XUV car no. DL4CAX-
Ex.PW-26/A4 7777
Pointing out memo at the instance of
Ex. PW-26/DA accused Deepak
Ex. PW-27/A Copy of entry GD entry no. 33 pertaining to
receipt of 12 parcels by ASI Rajbir PS
Vikas Puri
Ex. PW-29/A Seizure memo of blood stained earth control
and simple earth control
Ex. PW-29/B Seizure memo of button of shirt of deceased
Ex.PW-29/C Seizure memo of hairs of deceased
Ex.PW-29/C1 Site plan of the spot where the dead body
was lying
Ex. PW-29/D The photograph of deceased
Ex. PW-29/E Case diary running into six pages
Ex. PW-PW-29/F Form no.39 and sketch of deceased
Ex.PW-29/G Copy of FIR, Tehrir and GD no. 22 dated
12.07.2012
Ex.PW-29/PA Photocopy of notice issued to PW-29
Shyamakant Tripathi, Circle Officer
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 11/52 Ex. PW-31/A Missing Person Form duly filled by SI Rajbir Singh regarding missing of Rakesh Ex. PW-31/B Endorsement of SI Rajbir Singh on the statement of complainant Dipesh Kumar Ex. PW-32/A Pointing out memo of motorcycle by both the accused Ex.PW-32/B Seizure of blood sample lifted from under the mat of seized car XUV 500 bearing no.
DL 4CAX7777 Ex.PW-32/C Seizure memo of articles belonging to the deceased Ex. PW-32/D Copy of DD No. 33 dated 28.08.2012 of PS Sector -39 Noida Ex.PW-32/E Seizure memo of Pulsar motorcycle bearing no. DL 95AA 5164
6. At this stage, it would be appropriate to discuss the testimonies of few important prosecution witnesses in a detailed manner.
7. PW-2 Deepesh Kumar is the younger brother of Rakesh Kumar (since deceased). In his examination-in-chief, he deposed that on 11.07.2012 at about 12 in the intervening night of 11- 12/07-2012, he received a call from his sister-in-law (Bhabhi) namely Jayanti, wife of his brother Rakesh Kumar to the effect that his brother Rakesh Kumar had not returned home and his mobile phone was also switched off. She also told that Rakesh Kumar had left the house at about 4 p.m on 11.07.2012 to meet his cousin Ramanand. Thereafter, PW-2 made a phone at his native village to get the mobile number of Ramanand Kumar @ Sagar as he was having the same. He got mobile number of one Sadan Kumar, uncle of Ramanand Kumar @ Sagar. PW-2 made a call to Sadan Kumar, who provided mobile number of Madan State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 12/52 Kumar, father of Ramanand @ Sagar, who also did not provide mobile number of Ramanand Kumar @ Sagar. At about 1.15 a.m, PW-2 received a phone call of Ramanand @ Sagar and PW-2 asked about the whereabouts of his brother Rakesh Kumar from him whereupon Ramanand @ Sagar told PW-2 that he had dropped his brother Rakesh Kumar at about 8 p.m near Avantika Mod. PW-2 further deposed that he searched for his brother, but did not find him and at about 2 a.m, his Bhabhi made a call at 100 number. On asking of PCR officials, PW-2 provided the registration number of the motorcycle on which his brother Rakesh Kumar had gone to meet Ramanand @ Sagar and police advised him to make inquiry at SGMH to if his brother had met with an accident or not and also meet ASI Naval at PS Uttam Nagar in this regard. PW-2 further deposed that at about 4 p.m, he alongwith his friend Jai Prakash reached at PS Uttam Nagar where duty officer told them that his brother Rakesh Kumar was lastly seen near Avantika and therefore, he should visit PS Sector- 3 Rohini. While going towards PS Sector-3 Rohini, they noticed the said motorcycle parked near police picket Chander Vihar and on inquiry, PW-2 came to know that the said motorcycle had been brought by HC Didar Singh from the side of Ganda Nala. Police officials advised PW-2 to search his brother nearby the parks, however he could not find him. PW-2 further deposed that he again contacted the father of accused Ramanand @ Sagar and asked him to come to PS Sector -3 Rohini and after about 45 minutes accused Ramanand @ Sagar alongwith his uncle Pawan Kumar reached there. The police officials at PS Sector-3 Rohini asked them to go to PS Vikas Puri to lodge a missing report and State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 13/52 accordingly PW-2 lodged a missing report at PS Vikas Puri after collecting photograph of his brother Rakesh Kumar form his house. PW-2 deposed that after lodging of missing report, accused Ramanand Kumar @ Sagar was called at PS Vikas Puri and police made inquiry from him regarding the whereabouts of his brother, in which police found some contradiction. However, accused Ramanand Kumar @ Sagar was allowed to go after inquiry. On 14.07.2012, PW-2 alongwith his father and persons from neighbourhood, reached PS Vikas Puri where at about 11.30 a.m, ASI Rajbir Singh alongwith accused Ramanand Kumar @ Sagar and Deepak Kumar and other police officials reached there in a police vehicle and ASI Rajbir Singh told PW-2 that the dead body of his brother Rakesh Kumar had been found in the area of PS Sector-39 Noida and the dead body was lying in the mortuary at Noida. Thereafter, PW-2 alongwith his neighbour Nasib Singh, Manoj Pathak, Afsar Ali and Jai Prakash reached at PS Sector-39, Noida where PW-2 identified the dead body of his brother Rakesh Kumar. PW-2 further deposed that after completion of procedure of of UP police and Delhi Police, the dead body his brother was handed over to them. PW-2 also deposed that his father had already made complaint against the threat received from the uncle of accused Ramanand, but no action was taken by the police.
PW-2 Deepesh Kuamar was cross-examined by accused persons at great length. In his cross-examination, he admitted that his brother Rakesh Kumar had not left his house on 11.07.2012 in his presence, his Bhabhi Smt. Jayanti was present in the house at that time and she did not give any statement to the police. He State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 14/52 stated that on 12.07.20123, he lodged a report at PS Vikas Puri, but not raised any suspicion on the accused persons and did not call the PCR either on 11.07.2012 or 12.07.2012 regarding missing of his brother. He admitted that police did not search the house of accused Ramanand Kumar @ Sagar and Deepk and made inquiries from the neighbourhood of accused persons, in his presence. He deposed that police made inquiry from the accused persons in his presence and his father was also present at that time. However, neither he nor his father signed any paper regarding the investigation by police from accused persons. No recovery was effected in his presence. He also deposed that when he identified the dead body of his brother on 14.07.2012 before the police at Noida, his statement was not recorded by Delhi Police or that his statement was also not recorded by police on the day of cremation of his brother. He also deposed that police did not meet him during 14.07.2012 to 09.08.2012 in connection with the present case and he also did not contact the police during the said period. He denied the suggestion that the relations between him and his deceased brother were not cordial. He wanted to live in the same house where the deceased used to reside. He denied that he had involved accused Ramanand Kumar @ Sagar in the present case so that he may not have the wife of the deceased in relation to the property where the deceased was residing. He denied that there was a criminal case bearing FIR No. 992/2005 dated 06.11.2002 against him.
PW-2 was confronted with his statement to the effect that he had stated in his statement to the police that at about 4 a.m, he alongwith his friend Jai Prakash reached at PS Uttam Nagar State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 15/52 where he was told that his brother Rakesh Kumar was lastly seen near Avantika and advised to contact the police officials at PS Sector - 3 Rohini and on the way he noticed the motorcycle on which his brother had gone, parked near police picket Chander Vihar. He denied that the accused persons were falsely implicated in the case or that he depose
8. PW-4 Sh. Anil Kumar Pandey is the security guard at Legend Restro Bar, Sector-3 Rohini, Delhi. During his examination-in-chief, he did not identify the accused persons and deposed that he had seen them for the first time in the court on that day. He also deposed that police had never met him in connection with the present case.
He was cross-examined by the Ld. Prosecutor. He deposed that he had never stated to the police that he duly identified both the accused namely Ramanand @ Sagar and Deepak while they were in police custody as the persons, who had visited the Legend Restro Bar on 11.07.2012 between 8.30 or 9 p.m or they left the bar at that time. He denied that IO had recorded his statement on 16.07.2012 or that he was intentionally not identifying the accused persons as he had been won over by them.
9. PW-5 Babloo Kumar is the waiter at Legend Restro Bar, Sector-3, Rohini. He deposed that he did not see both the accused persons inside the bar on 11.07.2012 during his duty hours from 2 p.m to 11.30 p.m. He also deposed that police had not shown both the accused to him in the police custody and he had seen them for the first time in the court on that day.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 16/52 He was cross-examined by the Ld. Prosecutor wherein he deposed that he had not stated to the police that he had identified both the accused persons as the persons who had visited the Legend Restro Bar with the person whose photograph was shown to him. He deposed that he had also not stated to the police that the accused persons alongwith the person shown in the photograph, were sitting at Table no.1 in the bar or that he served them beer and dinner. He denied to have stated to the police that after paying the bill amount of Rs. 2000/-, all the three persons left the bar at about 8.30/9 p.m, in his presence. He also denied that IO recorded his statement on 16.07.2012 or that he was not identifying the accused persons as he had been won over by them.
10. PW-6 Sh. Dharampal, watchman at Noida and the first person to see the dead body, deposed that on 12.07.2012 at about 8 a.m when he had gone to answer the call of nature, he found a dead body of a male person near the nala of Kitna Park in naked conditions having stab injuries He informed at PS Sector-39 Noida and police officials reached there. He signed on the report Ex.PW-6/A and a case FIR No. 448/12 u/s 302/201 IPC was registered. IO Inspector Ram Chander Dahiya recorded his statement on 28.08.2012 at the place where the dead body was found. He further deposed that on 27.09.2012, Inspector Ram Chander Dahiya alognwith draftsman of Delhi Police reached the spot and at his instance measurement was taken, rough notes of the spot were prepared and his statement was recorded. He also deposed that he signed the Panchnama Ex.Pw-6/B of the dead State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 17/52 body alongwith some other persons duly prepared by Sh. Shyam Kant Tripathi, Incharge, Sector -39, Noida, Gautam Budh Nagar.
PW-6 was cross-examined by accused. He stated that blood was also lying on the spot,which was lifted by the IO of UP police with the help of cotton and the place was also photographed. He further stated that a knife was also lying near the dead body which was taken into possession by the Noida Police.
11. PW-16 Sh. Shishir Malhotra, Nodal Officer Aircel Limited produced original customer application form (CAF) pertaining to mobile no. 7503696054 issued in the name of Smt. Seema Ex.PW-17/A, its call detail record for the period w.e.f 01.07.2012 to 13.07.2012 Ex.PW-16/B, Cell ID Chart Ex.PW-16/C alongwith certificate u/s 65 B IEA Ex. 16/D, which he handed over to the IO on his request.
12. PW-17 Dr. Bhajan Lal, Medical Superintendent, CSC Malik, UP deposed that on 13.07.2012, he had conducted the postmortem upon the dead body of one unknown person and papered postmortem report no. 672/12 Ex. PW-17/A as per which there were 18 injuries on the dead body of deceased. The cause of death was opined to be shock and hemorrhage as a result of ante-mortem injuries and time since death was about one and half to two days old. He deposed that the articles as mentioned in the PM report were handed over to the concerned police officials in sealed condition.
13. PW-18 Ms. Seema Nain, Sr. Scientific Officer, Biology FSL examined vehicle no. DL4C-AX-7777 on 25.07.2012 and prepared report Ex.PW-18/A. She deposed that on 25.07.2012, State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 18/52 she examined the Mahindra XUV car where the blood was detected on polythene attached to the lower mat of front seat of the car and she handed over the IO the blood stained cutting for onward transmission to the FSL. Again on 21.09.2012, she examined five sealed parcels pertaining to the present case and prepared DNA report Ex.PW-18/B. She deposed that the DNA profile could not be generated on the Exhibits i.e. piece of car mat, piece of polythene, underwear, a pair of shoes and rings etc due to degraded stains.
She was not cross-examined at all by the accused persons.
The statement of accused persons u/s 313 Cr.P.C:
14. The statements of accused persons u/s 313 Cr.P.C was recorded. The incriminating circumstances appearing in evidence against the accused were brought to their notices and their explanation was sought. They denied the incriminating evidence in the evidence against them. Both accused claimed that they were innocent and have been falsely implicated in this case. Accused persons did not wish to lead evidence in their defence.
Submissions by Ld. Prosecutor:
15. Ld. Prosecutor argued that the prosecution has been able to prove the case against the accused persons beyond reasonable doubt and thus, both the accused are liable to the convicted for the offences they have been charged with. He referred to the oral as well as documentary evidence on record. He further argued that the prosecution has been able to prove the circumstances State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 19/52 which reasonably prove that it was the accused persons, who committed the murder of Rakesh Kumar.
Submissions by Ld. Counsel for accused persons :
16. On the other hand Ld. counsel for the accused argued that the prosecution has miserably failed to prove the case beyond reasonable doubt. He argued the prosecution has failed to prove all the circumstances which could prove the hypothesis that it was the accused only and no other persons who committed the murder of the deceased. He argued that as per the prosecution case the alleged knife used in the offence, was recovered from the car of father of accused (Ramanand's father) whereas PW-6 Sh. Dharampal deposed that the knife was lying near the dead body at Noida and it was taken into possession by the Noida Police and thus the recovery of the offending weapon is shrouded in the doubt. He further argued that there is no eye witness or the evidence in the CCTV footage to show the abduction of the deceased by the accused persons. He further contended that Smt. Jayanti, the wife of deceased has not been cited as a witness by the prosecution and her non-examination is fatal as she was the witness, who was allegedly told by the deceased that he was going to meet the accused persons. He further argued that in view of the same, the testimony of PW-2 Sh. Deepesh Kumar is nothing, but the hearsay evidence, which is not admissible in this case. Ld. Counsel also argued that the prosecution has also failed to prove the last seen evidence on record as PW-5 Sh. Babloo Kumar and PW-6 Sh. Dharampal who are the witnesses of last seen evidence have not supported the case of the prosecution. He State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 20/52 further submitted that the IO has also failed to take the CCTV footage of the restaurant despite the directions/circular of the Worthy Commissioner of Police that all the restaurants must have the CCTV footage of all the time. On the cause of death, he submitted that doctor has nowhere mentioned that the injuries on the dead body of the deceased were sufficient to cause the death in the ordinary course of nature. He further argued that the weapon of offence was never shown to the doctor and the opinion of the doctor on the postmortem report Ex.17/A cannot be admitted in evidence. On the aspect of motive, Ld. Counsel further argued that the prosecution has miserably filed to prove on record the motive as to why the accused persons would commit the murder of the deceased. He further referred to the FSL report wherein the DNA could not be matched as sought by the prosecution. Lastly, he argued that the investigation carried out by the IO was defective and shoddy and benefit of the defective investigation should be given to the accused.
17. In support of his arguments, Ld. Counsel for the accused relied upon following judgments:-
i. Kishore Chand Vs State of Himachal Pradesh, AIR 1990 SC 2140;
ii. Thulia Kali Vs The State of Tamil Nadu, AIR 1973 SC 501;
iii. Harish Chander @ Billa Vs State, 1995 (2) C.C Cases 503;
iv. Liddu @ Salook Singh Vs State of Haryana, 1994 (1) RCR. 129;
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 21/52 v. Satish Kumar Vs State, 1995 (3) C.C Cases 252;
vi. Sita Ram Vs State (Delhi Administration) 1997 JCC 637;
vii. Datar Singh Vs State of Punjab, AIR 1974 SC 1193;
viii. State of U.P Vs Nahar Singh, AIR 1998 SC 1328;
ix. Ram Prakash Vs State of Bihar, AIR 1998 SC 1190;
x. State of Karnatka Vs L. Munni Swami, AIR 1977 SC 1489;
xi. Varkey Joseph Vs State of Kerala , 1993 CRLJ 2010 SC;
xii. DRI Vs Satyanarain Aggarwal, 2012 (2) J.C.C 1043;
xiii. Chaman Lal Vs The State, 1987 (1) RCR 308;
xiv. Munna Lal Vs The Sate, 1995 JCC 110; xv. State of Haryana Vs Jagbir Singh & Ors, 2003 VIII AD S.C 623; xvi. Ravinder Singh @ Kaku Vs State of Punjab, 2022 LiveLaw (SC) 461.
18. I have heard the arguments advanced by the Ld Prosecutor and Ld. Counsel for the accused persons and perused the record.
Analysis:
19. It is settled principle of criminal jurisprudence that the prosecution has to prove the case against the accused beyond reasonable doubt and the accused has to prove its defence on preponderance of probabilities. What do we mean by the expression 'beyond reasonable doubt'?
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 22/52
20. The said expression 'beyond reasonable doubt' has been defined by the Hon'ble Supreme Court in the various judgments.
In the judgment of Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011CRI.L.J.663, Hon'ble Mr. Justice Dr. B. S. Chauhan, elaborated the concept of Standard of Proof in a criminal trial in the following terms:
"11. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination or fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with commission of a crime, the court has to judge the evidence by the yardstick of probabilities, intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law. (Vide: Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159; State of Punjab Vs. Jagir Singh Baljit Singh & Anr. AIR 1973 SC 2407; Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765; Mousam Singha Roy & Ors. Vs.State of West Bengal, (2003) 12 SCC 377; and Aloke Nath Dutta & Ors. Vs. State of West Bengal, (2007) 12 SCC 230).
12. In Sarwan Sigh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, this court observed (Para12) :
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted."
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 23/52
21. Furthermore, in the judgment of Sucha Singh and Another Vs. State of Punjab, (2003 ) 7 SCC 643, the Hon'ble Supreme Court explained the term Beyond Reasonable Doubt and observed as under:-
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v.
Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
22. Ld. Counsel has argued that the prosecution case does not fall u/s 302 IPC as PW-17 Dr. Bhajan Lal, who conducted the postmortem did not opine the injuries on the dead body to be 'sufficient to cause death in the ordinary course of nature'.
Although on the face of it, the submission of the Ld. Counsel seems to be interesting, but on greater introspection, the said submission is found not tenable. The postmortem report Ex. 17/A shows as many as seventeen injuries on the dead body. All State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 24/52 the injuries were found to be incised wounds. The incised wounds can only be caused on a human body by a sharp weapon only. Some of the injuries were on the vital parts. The doctor has opined the cause of death as shock and hemorrhage as a result of ante-mortem injuries. Therefore, even if the doctor did not state that the injuries were sufficient to cause death in the ordinary course of nature, it can still be safely concluded that the offender(s) had the intention to cause death of the deceased, which is demonstrable from the numbers of the incised wounds on the dead body. Therefore, this court is of the opinion that the death of the deceased is covered u/s 300 Clause (1) and not u/s 300 Clause (3).
23. Admittedly, in this case, there is no eye witness to the incident in question. The case of the prosecution rests upon the circumstantial evidence. The law regarding the circumstantial evidence has been settled by the Hon'ble Supreme Court in its various judgments. In the judgment of Nazir Khan Vs State of Chhatisgarh reported as MANU/CG/1220/2024, the Hon'ble High Court of Chhattisgarh dealt with a case based upon circumstantial evidence and discussed in detail the earlier pronouncements of the Hon'ble Supreme Court on the subject. The relevant observations of the Hon'ble High Court of Chhatisgarh in the aforesaid case are contained in paragraphs 14 to 20 as reported by MANUPATRA, are reproduced hereunder:-
"14. 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 v. State of Rajasthan, MANU/SC/0094/1977 : AIR 1977 SC 1063; Eradu and Ors. v. State of Hyderabad, State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 25/52 MANU/SC/0116/1955 : AIR 1956 SC 316; Earabhadrappa v. State of Karnataka, MANU/SC/0530/1983 : 1983:INSC:23 : AIR 1983 SC 446; State of U.P. v. Sukhbasi and Ors., MANU/SC/0115/1985 :
AIR 1985 SC 1224; Balwinder Singh v. State of Punjab, MANU/SC/0160/1986 : AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of M.P., MANU/SC/0035/1989 : 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 v. State of Punjab, MANU/SC/0158/1954 : AIR 1954 SC 621, it was laid down by the Supreme Court 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 the offences home beyond any reasonable doubt.
15. We may also make a reference to a decision of the Hon'ble Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., MANU/SC/0928/1996 : 1996:INSC:729 : (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
16. In Padala Veera Reddy v. State of A.P. and Ors., MANU/SC/0018/1990 : AIR 1990 SC 79, it was laid down by the Supreme Court 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 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 the guilt of the accused and such evidence should not only be State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 26/52 consistent with the guilt of the accused but should be inconsistent with his innocence.
17. In State of U.P. v. Ashok Kumar Srivastava, MANU/SC/0161/1992 : 1992 Crl.LJ 1104, it was pointed out by the Supreme Court that great care must be taken in 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 guilt.
18. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
19. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, MANU/SC/0111/1984 : 1984:INSC:121 : (1984) 4 SCC 116, which state as under:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 27/52 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
20. In the matter of Trimukh Maroti Kirkan Vs. State of Maharashtra, MANU/SC/8543/2006 : (2006) 1 SCC 681, the Supreme Court has held as under:-
"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
21. The principles of circumstantial evidence is reiterated in Nizam and another vs. State of Rajasthan, MANU/SC/0964/2015 :
2015:INSC:640 : (2016) 1 SCC 550, wherein the Supreme Court has held that:-
"8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence."
24. In a recent judgment titled as Suresh Chander & Anr Vs State of Uttrakhand 2024 INSC 907, the Hon'ble Supreme Court has relied upon the earlier judgment of in the case of Devi Lal & Anr Vs State of Rajhasthan (2019) 19 SCC 447 and held that in a case based on circumstantial evidence where there are two State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 28/52 views possible, one pointing to the guilty of the accused and the other to the innocence of the accused, the accused is entitled to the benefit of one which is favourable to him. Thus, it is clear that where two views are possible, one pointing toward the innocence of the accused and one towards the guilt of the accused, the Court is under the obligation to adopt the view, which is favourable to the accused.
25. Coming back to the facts of the present case, in this case admittedly, there is no eye witness to the offence in question. The prosecution case is based upon the circumstantial evidence. The major circumstances, which the prosecution has relied upon are the following:-
(a). The deceased having gone to meet accused Ramanand Kumar @ Sagar;
(b). Last seen evidence of employees of Legend Restro Bar who saw the deceased in the company of accused persons;
(c). Motive of accused to cause death of deceased;
(d). Recovery of knife.
(e). The CDR shows that at the relevant time, accused persons were in touch with the deceased.
Deceased having gone to meet accused:
26. It has come in the evidence of PW-2 Sh. Deepesh Kumar that he approached police station Vikas Puri on 12.07.2012 where he stated that since 4 p.m yesterday, the deceased had gone to meet the son of his Chacha at Budh Vihar and as per the version of his cousin, he left at 6 p.m yesterday for his home, but did not reach his home. He also saw the bike of deceased Rakesh Kumar State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 29/52 at the Nala. In his missing complaint, he nowhere mentioned that the fact that the deceased had gone to meet his cousin at Budh Vihar, is based upon the information received by PW-2 from Smt. Jayanti, wife of deceased. Further, next day he lodged his complaint Ex. PW-2/A with PS Vikas Puri wherein also he did not mention the said fact that he was informed about the deceased visiting his cousin by his wife Smt. Jayanti. In his deposition, he stated that he received the call from his Bhabhi Smt. Jayanti on 11.07.2012 at about 12 midnight. Thus, he was aware that the said information was conveyed to him by Smt. Jayanti, but still while lodging the missing report vide DD No. 17 A on 12.07.2012 at about 10.15 p.m and while lodging the FIR on 13.07.2012, he did not mention the said fact that he received the information from Smt. Jayanti. He deposed that Smt. Jayanti told him that deceased left his house on 11.07.2012 at about 4 p.m to meet his cousin Ramanand Kumar @ Sagar. Thus, it is clear that PW-2 Deepesh Kumar had not seen the deceased leaving his house to meet his cousin Ramanand Kumar. Thus, his testimony amounts to hearsay evidence.
27. From the aforesaid discussions, it is clear that PW-2 has not disclosed the said fact in his complaint that he was told by Smt. Jayanti, wife of deceased that the deceased was going to meet Ramanand Kumar at his house. It is for the first time that he deposed about the same in his deposition in the court. Thus, the primary witness of the fact that deceased had left his house to meet accused Ramanand at his house could not be examined Thus, the said fact cannot be said to be proved beyond reasonable doubt. In view of the same, in the considered opinion of the State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 30/52 court, the withholding of the said information by PW-2 has cast serious doubt in the prosecution case.
28. Considering the afore-said fact, this court is of the opinion that the prosecution has failed to prove the fact that the deceased on 11.07.2012 had left his house at about 4.30 p.m for the house of accused Ramanand Kumar at Budh Vihar. Thus, this fact has not been proved beyond reasonable doubt.
Last seen evidence:
29. As per the case of the prosecution, PW-4 Sh. Anil Kumar Pandey and PW-5 Babloo Kumar were the eye witnesses of last seen evidence. They had seen the deceased in the company of accused persons at Legend Restro Bar. PW-4 Sh. Anil Kumar Pandey was a security guard and PW-5 Sh. Babloo Kumar was a waiter at Legend Restro Bar, Sector - 3, Rohini. However, they did not support the case of prosecution regarding the fact that deceased was last seen in the company of accused persons on 11.07.2012. In their testimonies before the court, PW-4 and PW- 5 both stated that they had seen both the accused persons for the first time in the court. They were duly cross-examined by the Ld. Prosecutor, but they both denied that both the accused persons were identified by them when they were in the custody of the police or that they had seen the person whose photograph was shown by the police to them. Thus, they did not identify the accused persons as the persons, who had visited the Legend Restro Bar on 11.07.2012 alongwith the deceased. Therefore, both the aforesaid witnesses have not supported the prosecution case that the deceased was seen by them at Legend Restro bar on 11.07.2012.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 31/52 Moreover, it is also not the case of the prosecution that the said Legend Restro Bar did not have the coverage of CCTV footage. The prosecution has not placed any CCTV footage of the Legend Restro Bar of the relevant time period of 11.07.2012. One could understand that no CCTV footage has been placed on record as no CCTV cameras were installed at Legend Restro Bar, but this is not a case of prosecution either. Therefore, the court can presume that the IO has deliberately not captured the CCTV footage of the said bar and the only natural conclusion one can draw is that the deceased did not visit the said bar along with the accused persons. The court can also presume that a bar is a place where people consume alcohol and the chances of having a serious crime been committed in a bar are high. Hence, there has to be some guidelines or circular by the Worthy Commissioner of Police, Delhi Police that the said bar also must have had the CCTV Cameras installed therein. Although accused has also not made out a case that the said bar had the CCTV footage by examining the owner of bar or by building his case in this cross-examination of IO, but the fact remains that there is no CCTV footage on the record.
30. Hence, in view of the fact that PW-4 Sh. Anil Kumar Pandy and PW-5 Sh. Babloo Kumar turning hostile and no CCTV footage having been placed on the record by prosecution leaves no doubt in the mind of the court that the prosecution has miserably failed to prove the last seen evidence against the accused persons beyond reasonable doubt.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 32/52 Motive of accused to cause death of deceased:
31. Ld. Counsel has argued that the prosecution has failed to prove on record any motive on the part of the accused persons to commit murder of the deceased whereas the Ld Prosecutor argued that in view of the evidence led by the prosecution the motive in this case has no importance.
32. It is settled law that the concept of motive is not applicable to the case based upon the direct evidence. It is also settled law that motive assumes importance in a case based upon the circumstantial evidence and the absence thereof causes prejudice to the case of the prosecution. Although there are exceptions also. Recently, the Hon'ble Supreme Court in the judgment of Shanker Vs State of Maharastra 2023 LiveLaw (SC) 212 has considered the importance of the motive in a case of circumstantial evidence. The relevant observations as reported by LiveLaw can be reproduced here as under:-
"18. There can be no doubt with respect to the fact that in a case where the conviction is based on circumstantial evidence, motive assumes great significance. A Three Judge Bench of this Court in Nandu Singh v. State of Madhya Pradesh (now Chhattisgarh) MANU/SC/0477/2022 by its judgment dated 25.02.2022, after observing thus, held as under:
"It is not as if motive alone becomes the crucial link in the case to be established by the prosecution and in its absence the case of prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the Accused."
We may add here that just like complete absence of motive failure to establish motive after attributing one, should also give a different complexion in a case based on circumstantial evidence and it will certainly enfeeble the case of prosecution.
19. In the decision in Nandu Singh's case an earlier decision of this Court in Anwar Ali and Anr. v. State of Himachal Pradesh State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 33/52 MANU/SC/0723/2020 : (2020) 10 SCC 166, was quoted with agreement, thus:
"24. Now so far as the submission on behalf of the Accused that in the present case the prosecution has failed to establish and prove the motive and therefore the Accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar ( MANU/SC/0500/1994 :
1995 Supp (1) SCC 80) that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu (Babu v. State of Kerala, MANU/SC/0580/2010 : (2010) 9 SCC 189), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the Accused. In paras 25 and 26, it is observed and held as under: (Babu case, SCC pp. 200-01).
"25. In State of U.P. v. Kishanpal MANU/SC/7928/2008 : (2008) 16 SCC 73), this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-
39) "38.... the motive is a thing which is primarily known to the Accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the Accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the Accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.
26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the Accused. (Vide Pannayar v. State of T.N. MANU/SC/1462/2009 : (2009) 9 SCC 152).
20. In the decision in Shivaji Chintappa Patil v. State of Maharashtra MANU/SC/0136/2021 : (2021) 5 SCC 626, after referring to the decision in Anwar Ali's case (supra), this Court observed thus:
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 34/52 "27. Though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances."
33. In view of the aforesaid propositions of law, let me discuss the evidence brought on record by the prosecution regarding the motive. PW-2 Sh. Deepesh Kumar is the only relevant public witness in this regard. He is the younger brother of deceased Rakesh Kumar. In his entire testimony, he has not deposed anything about any motive on the part of the accused persons.
Even the IO has not brought any motive on part of the accused giving a reason to them to commit the murder of the deceased.
34. Ld. Prosecutor argued that the accused persons have not cross-examined PW-2 Sh. Deepesh Kumar regarding the motive and therefore, this argument does not lie on the part of the accused persons. He further argued that unless and until the witness is given chance to explain anything, no inference can be taken against the witness for not deposing something. Although it is true that the accused has not cross examined the IO as to the investigation done by him on the motive but the fact remains that in the investigation, the IO has not investigated as to what was the motive on the part of the accused persons that they would commit the murder of the deceased. The IO from very beginning was aware that there was no eye witness in this case and he was proceedings on the basis of last seen evidence in the form of PW- 4 and PW-5. Therefore, it was incumbent on the part of the IO to investigate regarding the motive on the part of the accused to murder the deceased. There is no investigation on this aspect. Nothing has come in the testimony of PW-31 SI Rajbir Singh and State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 35/52 32 Inspector Ram Chander. The court reminds itself that the motive is always not important in the case of circumstantial evidence as well, as held in the case of Shanker (supra) relying upon the judgment of 'State of U.P. vs. Kishanpal', where in a case based upon the circumstantial evidence, it was held that even if the motive is not a strong circumstance, but the evidence has to be clear and unambiguous and circumstance must prove the guilt of the accused. Considering the aforesaid observations of the Hon'ble Supreme Court, in view of the improvement in deposition of PW-2 that the deceased left his house by intimating Smt. Jayanti, his wife and the testimonies of PW-4 and PW-5, the alleged witnesses of last seen evidence, it can be safely concluded that their evidence on record is not clear and unambiguous and does not indicate the culpability of the accused persons. Thus, the fact that the prosecution not providing the motive on the part of the accused persons, has assumed importance in this case. Thus, it can be safely held that the prosecution case having failed to prove the motive on record, must suffers the consequences thereto.
Recovery of knife:
35. As far as the recovery of knife, the alleged weapon of offence, is concerned, the case of prosecution is on the premise that accused Ramanand Kumar got recovered the alleged knife from underneath the mat of the front seat of Mahindra XUV-500 car no. DL 4CAX 7777. The said car found was stationery at H.No. C-186, Sector-44, Noida, Gautam Budh Nagar, U.P. The said knife was recovered, seized and sealed by the IO on 14.07.2012. PW-6 Sh. Dharampal is the person, who first saw the State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 36/52 dead body on 12.07.2012 at about 8 a.m. In his deposition, he stated that at the afore-mentioned date and time when he had gone to answer the call of nature, he saw the dead body lying near Kitna Park in naked condition and having some stab injuries. In the cross-examination, he admitted the suggestion of the Ld. Counsel for the accused that one knife was lying near the dead body and the said knife was also taken into possession by the Noida Police. The aforesaid admission on the part of PW-6 Sh. Dharampal was in the teeth of the entire prosecution case as the prosecution case was that the knife was recovered on 14.07.2024 from underneath the car. However, Ld. Prosecutor did not chose to re-examine this witness after the witness had admitted the suggestion which was highly damaging to the case of the prosecution. Thus, it can be presumed that the prosecution has accepted his version that one knife was lying near the dead body and the said knife was taken into possession by Noida police also. The same caused a serious doubt in the persecution case.
36. PW-19 Ct. Hari Shanker and PW-29 Sh. Shyamakant Tripathi were the police officials of PS Sector-39, Noida, U.P at the relevant time. In their deposition, they never deposed that one knife was found near the dead body at Ganda Nala Kitna Park.
Ld. Counsel for the accused has also not cross-examined or put any suggestion to either of the aforesaid two witnesses regarding the fact that the knife was lying near the dead body or it was taken into possession by Noida police. In his deposition, PW-29 had deposed that he seized the Exhibits from the spot like sample earth control, button of shirt and hair of the deceased. He also State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 37/52 proved some other documents prepared by him before the investigation was transferred to PS Vikas Puri, Delhi. However, he did not depose that any knife was found lying near the dead body. He specifically denied the suggestion of the Ld. Counsel that one knife was lying at the spot and same was seized by him in the presence of PW-6 Dharampal. PW-19 was not cross- examined if a knife was lying at the spot near the dead body. Another witness i.e. PW-30 Ct. Sunil from PS Gautam Budh Nagar deposed that he did not remember if the knife was seized in the presence of Dharampal. Therefore, it is clear from the testimonies of the aforesaid witness and the record of the case that the prosecution case has always been that no knife was recovered from near the dead body and the same was only recovered at the instance of accused Ramanand Kumar on 14.07.2012 from underneath the mat of the front seat of Mahindra XUV-500 car no. DL 4CAX 7777. But, the fact remains that the prosecution has not re-examined PW-6 Dharampal and the categorical admission by PW-6 has to be read against the prosecution.
37. Is it believable that accused would keep the weapon of offence in their car fro about three days after the murder ? As per the deposition of PW-6 Dharampal, he saw the dead body on 12.07.2012 at about 8 a.m. The postmortem on the dead body was conducted on 13.07.2012 at about 4.30 p.m. The time since death was opined by the doctor as 1 ½ to 2 days old. The same correspondences to the fact that deceased was murdered from 4.30 p.m on 11.07.2012 to 12 midnight in the night of 11/12.07.2012 . As per the investigation, the knife was recovered State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 38/52 on 14.07.2012. PW-32 Inspector Ram Chander stated that on 14.07.2012, he left the PS at about 5.20 p.m. Therefore, it is clear that the car was seized after that period. Thus, one can safely say that the knife was recovered after three days from the murder of deceased. It is beyond any comprehension that as to why the accused persons would keep the alleged weapon offence in the car for almost three days. They had ample time to hide the knife or destroy it in different ways, but they did not do so. It can be infer that any offender that too in a case of murder, would keep the most important evidence of the case i.e. the alleged weapon of offence with him. This court finds that the said conduct of the accused is against the normal human standards.
38. This court draws strength in its observations from the judgment of the Hon'ble Supreme Court titled as Khalil Khan Vs State of M.P (2000) 11 SCC 19. In the aforesaid case, the incident had taken place on 06.04.1986 and the accused was arrested on 11.04.1986 nearly four days thereafter. He was wearing the same clothes which were blood stained even four days after the murder. The Hon'ble Supreme Court held that the said fact is opposed to normal human conduct. Thus, the said evidence was not relied upon by the Hon'ble Supreme Court. Similarly in the present case the recovery of the knife has been effected on 14.07.2012, after the three days of the murder of the deceased on 11.07.2012. The same is not believable as it is against the normal human conduct that accused would not dispose the knife and would keep it in their car for about three days.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 39/52
39. The other circumstance which makes the recovery of the knife dubious is that after the recovery of the knife on 14.07.2012, the IO PW-32 Inspector Ram Chander never produced the said knife before the doctor, PW 17 Dr Bhajan Lal, who conducted the postmortem to seek subsequent opinion if the injuries on the dead body were possible from the said knife or not. Although one can argue that the opinion of the doctor in such case was an opinion only and the fact that the deceased died due to the injuries caused by the sharp weapon, cannot be ruled out. But, since the case is based upon circumstantial evidence and there is no eye witness of the offence, in the considered opinion of the court, the subsequent opinion of the doctor regarding the weapon of offence viz-a-viz injuries on the dead body would have been the important and relevant evidence completing the chain of circumstances for the prosecution.
40. Admittedly, in this case, the IO after the recovery of the knife has not produced the same before PW-17 Dr. Bhajan Lal for subsequent opinion if the injuries on the dead body of the deceased would have been possible by the knife recovered by him. Whether this shortcoming on the part of the IO is detrimental to the prosecution or not is to be seen. In the judgment of Amar Singh and Ors. vs. The State (NCT of Delhi) (12.10.2020 - SC) : MANU/SC/0752/2020, the Hon'ble Supreme Court considered the question that whether the weapon of offence being not produced before the concerned doctor for his opinion if the same could have been used in the offence, adversely affects the prosecution case or not. In the said case, the Hon'ble Supreme Court despite the presence of eye witnesses at State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 40/52 the spot opined that the non production of the weapon before the concerned doctor coupled with the nature of deposition of eye witnesses, caused a doubt in the prosecution story. The relevant observations in the aforesaid judgment of Amar Singh (supra) , are reproduced as under:-
"30. While emphasizing the importance of eliciting the opinion of medical witness in such circumstances this Court in the case of Kartarey and Ors. v. State of U.P. MANU/SC/0138/1975 : (1976) 1 SCC 172 has observed as under:
We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice particularly in a case where injuries found are forensically of the same species, example stab wound, and the problem before of the Court is whether all or any those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration of the course of justice.
31. The same has been again asserted by this Court in Ishwar Singh v.
State of U.P. MANU/SC/0120/1976 : (1976) 4 SCC 355 by observing as under:
It is the duty of the prosecution, and no less of the Court, to see that the alleged weapons of the offence, if available, is shown to the medical witness and is opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so sometimes, cause aberration of the course of justice. On the basis of the evidence on record it is difficult to say whether the injury to the deceased was caused by the knife with a broken tip which was ceased. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye witness "cannot be accepted at its face value", as observed by this Court in Mitter Sen and Ors. v. State of U.P. MANU/SC/0159/1975 : (1976) 1 SCC 723."
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 41/52
41. In the case in hand, there is no eye witness of the alleged offence. The case is squarely based upon the circumstantial evidence. The knife was allegedly recovered by the IO after three days from the offence. Although the postmortem had already been conducted on 13.07.2012 i.e. one day before the recovery of knife on 14.07.2012, but still the IO could have shown the said knife to Dr. Bhajan Lal for his opinion if the injuries were possible by the knife recovered. By not choosing so, in the considered of this court, the IO has conducted a serious damage to the case especially when the case was based upon the circumstantial evidence.
42. In view of the aforesaid discussions, it is held that the prosecution has miserably failed to prove that the knife as recovered by the IO from the car at the instance of accused Ramanand Kumar @ Sagar was the same knife which was used in the murder of the deceased. Moreover, the statement of PW-6 and the recovery of the knife after three days of the murder, compel this court to adopt a view that the prosecution case cannot be believed as far as the recovery of the said knife is concerned.
43. Further more, as per the prosecution case, accused persons burnt the clothes and mobile phone of deceased at Japanese Park, Rohini. The accused persons pointed out the place and the IO PW-32 Inspector Ramesh Kumar seized the ash of the so called alleged burnt material vide seizure memo Ex. PW-23/D on 15.07.2012. The same was sealed with the seal of RBS and seized vide the aforesaid memo. The same was sent to the FSL and vide FSL report bearing no. 2012/C-7421 dated 14.11.2012, State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 42/52 it was examined. Although the said report has not been proved either by the prosecution or by the defence, but at the same time the court can take judicial note of the said report as the said report was proved by the public servant in discharge of his official duty. A careful perusal of the report reveals that three seals of RBS which contained "burnt and melted blackish brown solid hard and dusty material" was examined at FSL. But the FSL result shows that no kerosene / diesel/ petrol could be detected in Ex-1. Thus, the prosecution story has filed to prove that the burnt material recovered from the Japanese Park at the instance of accused have no remnants of kerosene / diesel/ petrol.
Moreover, the car XUV 500 bearing no. DL 4CAX7777 was recovered at the instance of accused person at Noida on 14.07.2012. IO had, for the reasons best known to him, got examined the said care from the FSL expert at the premises of FSL on 25.07.2012. Therefore, almost more than ten days were taken by the IO for the examination of the care by FSL expert. No satisfactory explanation has been given by the IO for the same. The car was examined by PW-18 Ms. Seema Nain, Sr. Scientific Officer, Biology FSL. She deposed that the blood was detected on polythene attached to the lower mat of front seat of the car left side and on mat of left side of front seat of car. She cut the blood stained part of the same and handed over the same to the IO for forwarding the same to the FSL. On 21.09.2012, she examined five parcels in connection with the present case. She proved her DNA examination report as Ex.PW-18/B. Although the blood was detected on knife, piece of car mat, piece of polythene, button, scalp hair, underwear, a pair of shoes, rings, State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 43/52 kara, mala etc but she further deposed that the DNA profile was partially generated on knife, scalp hair due to degraded stains. Moreover, no DNA profile could be generated from car mat, piece of polythene, underwear, a pair of shoes and rings, kara, mala etc due to degraded stains. Therefore, she could not generated the DNA profile from those articles. Thus, her report Ex.PW-18/B does not held the prosecution as it has not been proved on record that the knife or the car mat contained the DNA of the deceased. Hence, it is not proved on record that knife allegedly recovered at the behest of accused from the car belonging to the father of accused Deepak, was the same knife which was used in the offence.
44. In view of the afore-said discussion, this court is of the opinion that prosecution has filed to prove, firstly; that the knife was recovered allegedly in the manner as put forth by the prosecution and secondly the said knife was used in committing the murder of deceased.
The CDR showing that the accused persons were in touch with the deceased:
45. The Ld. Prosecutor further argued that the CDR and chart location of the mobile phone of the accused persons and deceased would show that at the relevant point of time, accused were in touch with deceased and they were together.
On the other hand, Ld. Counsel argued that all the electronic evidence has not been proved in accordance with law and the certificates under section 65 B (4) IEA filed by the prosecution do not meet the criteria as stipulated by the law.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 44/52
46. There is no doubt that the CDRs and the location charts of the mobile phones are the electronic evidence. At this stage, it would be appropriate to discuss the relevant provisions in this regard. Section 65 A and 65 B of IEA are the relevant provisions as to how the electronic evidence should be proved. They read as under:-
"65-A. Special provisions as to evidence relating to electronic record.--The contents of electronic records may be proved in ac- cordance with the provisions of Section 65-B. 65-B. Admissibility of electronic records.--(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (here- inafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are sat- isfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the origi- nal or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely--
(a) the computer output containing the information was pro-
duced by the computer during the period over which the com- puter was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the com- puter;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the com- puter was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of op- eration during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record repro- duces or is derived from such information fed into the com- puter in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing in- formation for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 45/52
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single com- puter; and references in this section to a computer shall be con- strued accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the produc- tion of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions men- tioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsi- ble official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the cer- tificate; and for the purposes of this sub-section it shall be suffi- cient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so sup- plied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, in- formation is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated other- wise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--For the purposes of this section any reference to in- formation being derived from other information shall be a reference State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 46/52 to its being derived therefrom by calculation, comparison or any other process."
47. Section 65B (2) IEA provides the following conditions in respect of a computer output:-
"Section 65B-(2) elaborates on the conditions in respect of a computer output shall be following, namely:
• The computer from which the record was created was routinely used to store or process data on activities that were regularly carried out by a person who had legal authority over the period, and it refers to the time during which the computer was routinely utilized.
• The person who had legal control over the computer gave information to it during regular business operations. • If the computer wasn't functioning correctly, it wouldn't have had an impact on the electronic record.
• The data that is duplicated is the same data that is regularly input into computers."
48. At this stage, it would be appropriate to quote the relevant observations of the Hon'ble Supreme Court in the case of "Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1". In the said case, the Hon'ble Supreme court discussed the previous judgments and laid down that section 65B (4) IEA is the complete code and there cannot be any deviation from the same if the proof of electronic evidence in a case comes into question. The relevant observation are reproduced hereinunder: -
"15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B (2) of the Evidence Act; and State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 47/52
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
49. In this regard, testimony of PW-10 Sh. R.K Singh, Nodal Officer, Bharti Airtel Limited, PW-15 Sh. Ishrar Babu, Nodal Officer Vodafone and PW-16 Sh. Shishir Malhotra, Nodal Officer, Aircel Limited are relevant. PW-10 Sh. R.K Singh has proved the CDR of mobile number 9871023273 of accused Deepak Kumar. PW-15 Sh. Ishrar Babu proved the CDR of mobile number 9711135335 of deceased Rakesh Kumar and PW- 16 Sh. Shishir Malhorta proved the CDR of mobile number 7503696054 in the name of Smt. Seema. PW-7 Smt. Seema deposed that accused Ramanand purchased the aforesaid mobile number on her identity documents as they were working together at Star Amazing. Thus, it is clear the accused Ramanand was using his mobile number issued on the identity proof of PW-7 Smt. Seema.
The CDR from Aircel Limited would reveal that accused Ramanand had made a call on 11.07.2012 at about 3.35 p.m to the deceased. There were other calls as well from his mobile phone to the deceased on same day at about 4.10 p.m. There is call record also between the phones being used by accused State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 48/52 Ramanand and by accused Deepak. Therefore, it is clear that at the relevant time, deceased had talked to accused Ramanand and accused Ramanand also had several calls with other accused Deepak. The certificate u/s 65B IEA of three mobile phone has been proved as Ex.PW-10/G of accused Deepak, Ex.PW-15/F of deceased Rakesh Kumar and Ex.PW-16/D of accused Ramanand. However, a careful perusal of certificate u/s 65B(4) of mobile phone of accused Deepak Kumar would show that it has failed to mention the conditions of section 65B(2) which is the requirement u/s 65B(4). Similarly, the certificate Ex.PW-16/D of mobile phone being used by accused Ramanand also does not take care of the conditions of Section 65B(2) and 65B(4) . It does not mention that the computer output from which the CDR were taken, were in his supervision or the same were true to the best of his knowledge or belief. Hence, the said certificate fails to meet the legal standard as required by law. Similarly, the certificate u/s 65B Ex.PW-15/F of deceased Rakesh Kumar pertaining to mobile no. 9711135335 has also failed to meet the essential conditions as laid down u/s 65B(2) and 65B(4).
50. Thus, in view of the judgment of Arjun Panditrao Khotkar (supra), it is clear that the prosecution has not proved the CDR in accordance with law and Section 65B(2)&(4) is a complete Code and there cannot be any deviation from the same. Thus, the CDRs though pointed out the conversation among the deceased and accused Ramanand as well as both the accused, cannot be looked into. Even otherwise, the electronic record in the form of CDR and chart location alone cannot be a sole ground to prove the guilt of the accused persons, in view of the State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 49/52 shortcomings in other evidence which has been already discussed by the court in the proceeding paragraphs. Accordingly, the court is not of the opinion to accept the electronic evidence on record.
51. In conclusion, this court is of the opinion that the prosecution has failed to prove the circumstances beyond reasonable doubt to prove the hypothesis that it was only accused persons who committed the murder of the deceased and no other person due to following reasons:-
a. PW-2 Sh. Deepesh Kumar did not mention in his initial complaint that deceased had gone to meet accused Ramanand after informing his wife and made improvements in his deposition. Thus, he rendered himself as an unreliable witness.
b. The prosecution has also failed to prove that the deceased was lastly seen with the accused persons at Legend Restro Bar as PW-4 and PW-5. They were the witnesses of last seen evidence, but they turned hostile and did not support the prosecution case.
c. No CCTV footage of the Legend Restro Bar has been placed on record by the IO even when the case of the prosecution was not that Legend Restro Bar had no CCTV cameras installed at its establishment.
d. The prosecution has not proved any motive at all on the record as to why the accused persons would commit the murder of the deceased. Although the motive is not important in every case based on circumstantial evidence, but in view of the other fragile evidence, the fact that motive has not been proved, goes against the prosecution.
e. The prosecution theory that the accused would keep the alleged weapon of offence i.e. the knife in their car even after three days, is against the normal human conduct and cannot be relied upon.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 50/52 f. PW-6 Sh. Dharampal had deposed that he saw the knife lying with the dead body in cross-examination, but the prosecution did not re-examine the said witness which means that the prosecution has accepted his admission in that regard. The same was in the teeth of the entire prosecution case.
g. The IO did not produce the alleged knife to Dr. Bhajan Lal for his subsequent opinion if the injuries on the dead body were possible by the said knife which has created a doubt in the prosecution case.
h. The FSL report did not prove any kerosene, diesel or petrol on the samples as mobile phone and clothes of deceased allegedly collected from the Japanese Park at the instance of the accused.
i. The IO got examined Mahindra XUV-500 car no. DL 4CAX 7777 allegedly used in offence after a delay of more than ten days through PW-18 Ms. Seema Nain for which no explanation for delay has been furnished on record.
j. The FSL result Ex.PW-18/B did not find any DNA on the samples and hence, there is no scientific evidence to support the prosecution case.
k. The CDRs and location charts have not been proved in accordance with law as held in the judgment of Arjun Panditrao Khotkar (supra) and thus, cannot be looked into for any purpose.
Conclusion:
52. In view of the aforesaid discussions, I am of the opinion that the prosecution has failed to prove charges against both accused persons and thus, failed to prove its case beyond reasonable doubt. Therefore, both the accused persons namely Ramanand Kumar @ Sagar and Deepak Kumar stand acquitted from the offences u/s 365/302/201/34 IPC.
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 51/52
53. Earlier Bail bonds of both the accused persons stand discharged. The original documents of their previous respective sureties, if any be returned to them after cancellation of endorsement and upon the identification of the sureties.
54. The bail bonds furnished u/s 437A Cr.P.C of accused Ramanand Kumar @ Sagar and Deepak Kumar are extended for a period of six months for the purpose of Section 437A Cr.P.C. After the expiry of six months, their bail bonds shall stand cancelled and surety bonds discharged. Original documents of sureties, if any be returned after cancellation of endorsement and upon the identification of the sureties. Case property, if any be destroyed after the expiry of period of appeal.
55. File be consigned to Record Room.
Digitally
signed by
HEM HEM RAJ
Date:
RAJ 2024.12.02
17:12:19
Pronounced in the open +0530
Court on 02.12.2024 (HEM RAJ)
Addl. Sessions Judge-08 (West)
Tis Hazari Courts Delhi
State Vs Ramanand Kumar & Anr SC No.56743/16 FIR No.190/12 52/52