Delhi District Court
State vs Ashok @ Kullahad on 25 March, 2015
FIR No.365/11 PS : New Usman Pur
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI.
FIR No. : 365/11
Under Section : 302/34 IPC
Police Station : New Usman Pur
Sessions Case No : 113/14
Unique I.D. No. : 02402R0396672011
In the matter of :-
STATE
VERSUS
1. Ashok @ Kullahad
S/o. Sh. Kailash Nath,
R/o.H.No.T-230, Gali No.2,
Gautam Puri, Delhi.
2. Ravi (Since Juvenile)
S/o.Sh. Virender,
R/o.H.No.T-102, Gali No.3,
Gautam Puri, Delhi.
3. Shahrukh (Since Juvenile)
S/o. Riyazuddin,
R/o.T-230, Gali No.2,
Gautam Puri, Delhi.
............Accused persons
Date of Institution : 24.12.2011
Date of Committal : 03.01.2012
Date of receiving in this Court : 26.02.2014
Date of reserving judgment : 25.03.2015
Date of pronouncement : 25.03.2015
Decision : Acquitted.
(Pulastya Pramachala)
Page no. 1 of 11 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.365/11 PS : New Usman Pur
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1. On 12.10.2011, a dead body of a lady was found near transformer behind MCD school, 1st Pusta, New Usmanpur, Delhi. An information of the same was recorded in PS New Usmanpur vide DD No.22-A. The body was inspected and photographs were taken. Dead body was sent in the mortuary at GTB hospital and was preserved. Messages were sent for the purpose of identification of this dead body. On 15.10.2011 postmortem examination was conducted on this dead body and during that process, one slip of paper mentioning a mobile number was found in the clothes of the deceased. Police made contact on this number and thereafter, Mr. Pawan came to mortuary and identified the dead body to be of his sister namely Smt. Chanda, wife of Sh. Ashok. On same day, other family members including husband of the deceased came to mortuary. Smt. Sharda, sister of the deceased informed that she had seen deceased in the company of accused Ashok @ Kullahad as well as two more boys in the evening of 09.10.2011 near DDA flats.
Husband of the deceased raised doubts over the involvement of accused behind murder of his wife, on the basis that the accused was previous land lord of the deceased and Mr. Ashok Kumar and accused had developed intimacy with the deceased, who also used to tease her. Police arrested accused at the instance of Ashok Kumar, who allegedly confessed committing murder of deceased by cutting throat with the help of two more boys. Thereafter, at the instance of accused, police recovered a knife from Zero Pusta, New Usmanpur. The doctor gave opinion that cause of death was due to haemorrhagic shock as a (Pulastya Pramachala) Page no. 2 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur result of ante mortem cut throat injury with sharp edged weapon and the knife recovered by the police was opined to be a possible weapon to inflict the injury as sustained by the deceased. Police chargesheeted the accused on the basis of last seen theory and recovery of the knife, for offence under Section 302/34 IPC.
2. On 27.03.2012, charges were framed for offence under Section 302/34 IPC and under Section 25/27 Arms Act against accused Ashok @ kullahad, to which he pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :-
Prosecution examined 17 witnesses in support of its case.
PW Name of Role of witness Proved document/article
No. Witness
PW-1 Smt. Public witness/ sister of Statement under Section 161
Sharda deceased/ hostile Cr.P.C i.e. Mark PW-1/PA.
witness
PW-2 Sh. Ashok Public witness/husband Receipt of dead body of
Kumar of the deceased/ deceased i.e. Ex.PW-2/A,
identified the dead arrest memo of accused Ashok
body of deceased @ Kullahad i.e. Ex.PW-2/B,
personal search memo i.e.
Ex.PW-2/C, disclosure
statement of accused i.e.
Ex.PW-2/D, pointing out memo
i.e. Ex.PW-2/E, sketch of knife
i.e. Ex.PW-2/F, seizure memo
of knife i.e. Ex.PW-2/G and
knife i.e. Ex.PW-2/Article-1.
PW-3 SI E.S. In-charge, Mobile Crime team report i.e.
Yadav Crime Team, North Ex.PW-3/A.
East District, Delhi
(Pulastya Pramachala)
Page no. 3 of 11 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.365/11 PS : New Usman Pur
PW-4 Pawan @ Brother of the Statement under Section 161
Pappu deceased/ identified Cr.P.C. i.e. Ex.PW-4/A.
the dead body of
deceased
PW-5 Ct. Shyam Photographer, Crime Photographs of the dead body
Lal Team North East and the spot i.e. Ex.PW-5/A-1
District, Delhi to Ex.PW-5/A-9 and negatives
of the same i.e. Ex.PW-5/B-1 to
Ex.PW-5/B-9.
PW-6 Sh. Public witness/brother Statement under Section 161
Bhushan of the deceased/ Cr.P.C i.e. Ex.PW-6/A.
identified the dead
body of deceased
PW-7 Ct. Samay Collected 100 number Computerized record of 100
Singh Form from PCR, Model number Form i.e. Ex.PW-7/A.
Town
PW-8 ASI Duty Officer Rukka i.e. Ex.PW-8/A and
Sushila computerized copy of FIR i.e.
Ex.PW-8/B.
PW-9 Ct. Ram Accompanied IO to Seizure memo of slip of paper
Naresh MCD Flats, New bearing a phone number
Usmanpur near 9899486429 i.e. Ex.PW-9/A,
transformer behind the seizure memo of removed
school. articles before postmortem
examination on the dead body
of deceased i.e. Ex.PW-9/B and
seizure memo of five sealed
parcels including viscera peti
along with sample seal i.e.
Ex.PW-9/C.
PW-10 Ct. Took the exhibits to
Prabhav FSL Rohini and
Singh collected the receipt of
depositing the pullanda
(Pulastya Pramachala)
Page no. 4 of 11 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.365/11 PS : New Usman Pur
PW-11 Dr. Conducted postmortem Postmortem report i.e.
Shabarish examination on the Ex.PW-11/A, subsequent
Dharampal dead body of unknown opinion i.e. Ex.PW-11/B and
female sketch of knife on the back side
of subsequent opinion i.e.
Ex.PW-11/C.
PW-12 HC Ram Accompanied IO and
Naresh PW-2 to Gali No.2,
Gautam Puri, New
Usmanpur, Delhi.
PW-13 Ct. Deposited viscera with
Mukesh the FSL, Rohini.
PW-14 SI Amit IO of the case DD No.22-A i.e. Mark PW-14/A,
Kumar carbon copy of application
through which dead body was
preserved i.e. Ex.PW-14/A,
Form 25.30 (1) (B) i.e.
Ex.PW-14-B, request for
postmortem i.e. Ex.PW-14/C,
rukka on the basis of DD no.22-
A i.e. Ex.PW-14-D, site plan i.e.
Ex.PW-14/E, slip bearing phone
number 9899486429 i.e. Ex.PW
-14/Article-1, saree and blouse
of deceased i.e. Ex.PW-14/
Article-2, silver bidhua i.e.
Ex.PW-14/Article-3, silver payal
i.e. Ex.PW-14/Article-4, black
thread with iron locket i.e. Ex.
PW-14/Article-5, one clutcher
i.e. Ex.PW-14/Article-6 and one
pair of red leather slipper i.e.
Ex.PW-14/Article-7.
PW-15 HC Nathu Joined investigation
Ram with IO
(Pulastya Pramachala)
Page no. 5 of 11 ASJ (Shahdara)
Karkardooma Courts / Delhi
FIR No.365/11 PS : New Usman Pur
PW-16 HC MHC(M) Photocopies of relevant entries
Parminder of register no.19 Ex.PW-16/A,
Kumar photocopy of R/C no.161/21/11
Ex.PW-16/B, photocopy of R/C
No.179/21/11 Ex.PW-16/C,
photocopy of acknowledgment
issued by FSL Ex.PW-16/D,
photocopy of R/C No.191/21/11
Ex.PW-16/E and the copy of
acknowledgment issued by FSL
Ex.PW-16/F.
PW-17 Insp. IO of the case Application for filing FSL result
Ratan Pal i.e. Mark PW-17/A, FSL reports
i.e. Mark PW-17/B and Mark
PW-17/C, report of viscera i.e.
Mark PW-17/D, statement
under Section 161 Cr.P.C.
Ex.PW-17/DA
FINDINGS :-
3. In this case, accused Ashok @ Kullahad was charged with the allegation that on 09.10.2011, at about 07:30 PM, he in furtherance of a common intention to commit murder of Chanda, murdered her near Transformer, MCD Flats, New Usmanpur, Delhi. It was further alleged against him that on 16.10.2011, he got recovered one knife, which was used by him while committing murder of Chanda on 09.10.2011. In order to prove these allegations, the star witnesses of the prosecution were PW-1/Smt. Sharda (sister of deceased) and PW-2/Ashok Kumar (husband of deceased).
4. Prosecution has based its case on the basis of last seen theory and has relied upon the testimony of PW-1, to support that theory.
PW-1/Smt. Sharda deposed that in the year 2011, she was residing in (Pulastya Pramachala) Page no. 6 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur Gali no. 5, Gautam Puri. Accused was also residing in gali no. 2. Her sister Chanda (deceased) and PW-2 were residing in another house of the accused, which was situated in gali no. 6 in that locality. However, they had shifted to another house in gali no. 8, Gautam Puri about a month prior to the incident. On 09.10.2011, at about 4-5 PM, she was returning from her home from her work and was passing by DDA Flats. At that place, she saw her sister Chanda, accused Ashok, Shahrukh (JCL) and Ravi (JCL) standing together near DDA Park. Since she was in hurry, therefore, she did not talk to them. Thereafter, on 15.10.2011, at about 09:00 AM, she received a telephonic call from her brother Pawan (PW-4), who informed her that dead body of Chanda was found near DDA Flats. She had doubt over accused Ashok because she had come to know that accused Ashok used to tease Chanda.
5. PW-2/Sh. Ashok deposed that on 09.10.2011, he had gone to his village and he was not having any mobile phone, therefore, he was not in contact with his family members. When he came back on 15.10.2011, PW-1 Sharda informed him that dead body of his wife was lying in Mortuary at GTB Hospital. He also deposed that accused used to visit her house, in order to meet his wife Chanda and his wife had told him that accused used to tease her on the way also, but his wife did not inform these things to him, due to fear of social defamation.
6. Such testimony of PW-1 and PW-2 are the only pieces of evidence, which have been relied upon by the prosecution to invoke last seen theory against the accused, in order to allege that accused had murdered Chanda along with his accomplices Shahrukh and Ravi (both JCL). It is worth to mention here that name of Shahrukh and Ravi were (Pulastya Pramachala) Page no. 7 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur allegedly disclosed by accused Ashok in his disclosure statement, wherein he had confessed having murdered Chanda with a knife and with the help of these two boys.
7. The knife, which was allegedly recovered at the instance of accused was opined to be a possible weapon to inflict the injury of the nature, which was sustained by deceased Chanda. However, this knife did not have any finger prints of the accused, nor was there blood of the deceased on this knife.
8. The prosecution, thus, on the basis of aforesaid piece of evidence, has alleged that it was accused, who had committed murder of Chanda with the knife, which was allegedly recovered at his instance. If for the sake of arguments, I accept the above-mentioned evidence on their face value, without disputing their correctness and credibility, still I find that such evidence do not connect the accused with the alleged murder of Chanda, nor the knife recovered in this case can be connected with the said murder.
9. The Higher Courts have dealt with the question of appreciation of circumstantial evidence based on the last seen theory in a number of cases viz. Kanhaiya Lal v. State of Rajasthan, 2014 [2] JCC 1235; Surender Prashad v. State, 2014 [1] JCC 569; Mohibur Rahman and Anr. v. State of Assam, (2002) 6 SCC 715; Arjun Marik and Ors. v. State of Bihar, 1994 Supp (2) SCC 372; Mishra v. Kuntala Mishra and Anr., (1996) 11 SCC 264; Bharat v. State of M.P., (2003) 3 SCC 106; Ram Reddy Rajesh Khanna Reddy & Ors. v. State of A.P., 2006 [1] JCC 541. The requisite conditions to invite presumption of guilt of the accused on the basis of such piece of evidence as arising (Pulastya Pramachala) Page no. 8 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur out of case laws on this topic, can be summarized in the following manner :-
A) The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused, who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non explanation on the part of the accused, by itself cannot lead to proof of guilt against the accused.
B) The first burden of proof is on the prosecution to prove that the accused was seen alone in the company of the deceased and at a place where no other person is expected to interfere. Once, this is proved by the prosecution, then the burden of proof shifts upon the accused as per Section 106 Indian Evidence Act, 1872, to prove his innocence.
C) The solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can be founded. D) The last seen evidence is only a relevant evidence to complete the chain of circumstantial evidence and the conviction cannot be solely based on this piece of evidence, unless it is supported by other links in the chain of circumstances.
E) Where the time gap between the point of time when the accused and deceased were last seen together and when the deceased was found dead is so small that there can be no possibility of any person other than the accused, becomes impossible, the court who look for some (Pulastya Pramachala) Page no. 9 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur other corroboration taking such last seen evidence as an important evidence in the whole chain of circumstantial evidence. However, where in a case there is a long gap and possibility of any other person coming in between exists, the reliability itself on this piece of evidence becomes difficult and before placing any reliance the court must satisfy itself by other positive evidence to conclude that there was no possibility of any other person entering into such a gap.
10.In the present case, postmortem was conducted on 15.10.2011 at around 12:00 PM and the concerned doctor i.e. PW-11 gave opinion that the death had taken place around 5 days back. Thus, it is crystal clear that even PW-11 had not given a very concrete opinion regarding the exact time of death of Chanda. As per his given opinion, the death would have taken place on 10.10.2011. Such opinion given by PW-11, if read with the testimony of PW-1, shows that there was a huge gap between time, when PW-1 had allegedly seen accused in the company of deceased Chanda i.e. at around 4-5 PM on 09.10.2011 and when the death had taken place i.e. probably during first half of 10.10.2011. If such evidence is analyzed on the basis of test of time gap, as laid down by the superior Courts, then I find that there cannot be any assumption to connect the accused with alleged murder of deceased Chanda.
11. Furthermore, as per version of PW-1 the accused was seen in the company of deceased Chanda along with two more persons namely Shahrukh and Ravi (JCL). Therefore, one cannot make a conclusive assumption that, who actually had murdered Chanda. It is only to remind ourselves that the disclosure statement of the accused is (Pulastya Pramachala) Page no. 10 of 11 ASJ (Shahdara) Karkardooma Courts / Delhi FIR No.365/11 PS : New Usman Pur inadmissible in evidence and therefore, same cannot be relied upon to assume that with the help of these two persons, accused had cut the throat of deceased Chanda. Hence, once again the evidence led by prosecution does not stand the test of required ingredients of last seen theory.
12.In these circumstances, I find that it would be merely a presumption without any basis, to say that there is any evidence to connect the accused with the alleged murder of deceased Chanda. For want of any finger-prints of the accused on knife and the blood of deceased on the same, it would be once again a matter of making presumption without any basis, to say that the knife recovered by police was used in the murder of Chanda. Such presumptions cannot be made by the Court and in that situation, I find that there is no incriminating evidence at all against the accused to connect him with alleged murder of Chanda or to say that knife recovered at his instance was used in the murder of deceased Chanda. Moreover, accused was obviously not in possession of the knife and therefore, it cannot be said to be in his possession for the purposes of Section 25 of Arms Act.
13. Accordingly, I find that on the record there is no incriminating evidence vis a vis alleged offence under Section 302 IPC and under Section 25/27 of Arms Act, against the accused. Hence, accused Ashok @ Kullahad is acquitted of all the charges.
Announced in the open court (PULASTYA PRAMACHALA)
today on 25.03.2015 Additional Sessions Judge (Shahdara),
(This judgment contains 11 pages) Karkardooma Courts, Delhi
(Pulastya Pramachala)
Page no. 11 of 11 ASJ (Shahdara)
Karkardooma Courts / Delhi