Delhi District Court
State vs . Narender Kumar & Others I.D. No. 392/16 on 25 October, 2017
In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
State Vs. Narender Kumar & Others I.D. No. 392/16
S.C. No. 66/17 CNR No. DLSH010001902012
FIR No.813/2011 date of institution(RBT):15.09.2017
PS : Shakar Pur decision reserved on: 25.10.2017
U/ss : 302/201/34 IPC date of decision : 25.10.2017
In the matter of
State ...State
versus
(1) Narender Kumar s/o Sh. Dharam Pal Singh
R/o H.No.6C, Pocket DII, PhaseIII, Mayur Vihar, Delhi.
(2) Virender Singh s/o Sh. Dharam Pal Singh
R/o Qtr. No. 112, Shakar Pur, Police Colony, New Delhi.
(3) Smt. Sukhbiri w/o Sh. Dharam Pal Singh
R/o Village Sunehra, Tehsil Khekda District Bagpat, (U.P.) ...Accused
J U D G M E N T
1.1 (Introduction) - It was 17.10.2011, when formal FIR no. 813/11 under the provisions of section 302/201 IPC (now Ex.PW1/A) was registered in police station Shakarpur by Inspector Ravinder Kumar after making an endorsement (now Ex.PW20/A) below DD no. 13A dated 26.09.2011 (now Ex.PW3/A, which was earlier filed/closed) after receipt of appropriate information and a news item appeared in the Navbharat Times dated 15.10.2011 [that Santosh w/o Virender Singh, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 1 of 20 who was residing in quarter no. 112, Police Colony, Shakarpur and who was working as a constable in Delhi Police has been murdered on 26.09.2011 in mysterious circumstances and her dead body was disposed off with intention to destroy valuable evidence]. The formal investigation commenced.
1.2 (Prosecution case) - It unfolded that in the night of 25.09.2011 and 26.09.2011, the time was about 3:43 am, telephone calls were received in police control room from mobile phone 9892750272 and the caller gave the address of quarter no. 112 P.S. Shakarpur, that information was recorded by the Police Control Room in the form no. 1 (now Ex.PW19/A) and it was transferred to the concerned district. The transcript hard copies of such calls record (Ex.PW18/A1 to Ex.PW18/A5) were prepared and issued by the official that it was a call in female voice, the record was prepared by Ct. Pinki (now PW18). This call (sasural wale va husband marne ki dhamki de rahe hai) was attended by H.Ct. Tara Chand of Romeo 24 PCR, East Zone, he reached the said quarter no. 112, P.S. Shakarpur, which was located on the first floor and the door was knocked by him, then an old lady aged about 65/70 years had opened the doors and she told that no such call was done from that quarter nor there was any quarrel; she did not permit entry of HC Tara Chand into the quarter and doors were closed by her. Accordingly Police Control Room was informed by HC Tara Chand with request for local police. This information also received to the local Police of P.S. Shakarpur where DD no. 13A dated 26.09.2011 [3:45 am, midnight, now Ex.PW3/A] was recorded and H.Ct. Sugan Pal S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 2 of 20 of PS Shakarpur came to that quarter no. 112, P.S. Shakarpur but it was found locked and said DD no. 13A was treated as untraced.
1.3 Thence, a news appeared in the Navbharat Times, its cognizance was taken by Inspector Ravinder Kumar of PS Shakarpur and he carried appropriate inquiry and then registration of FIR was directed by him and it was registered.
1.4 In investigation, it was revealed that Ct. Virender Singh's wife Smt. Santosh was cremated on 26.9.2011 by him and others in the presence of many at village Sunehra Baghpat, U.P. The dead body of Santosh was taken from Delhi to Baghpat in the Maruti Alto Car bearing registration no. DL 2C AG 7287, belonging to accused Narender, he is one of the brothers of accused Ct. Virender Singh. Ct. Virender Singh had requested for leave from his office on the ground that his wife is in the hospital on 27.09.2011, whereas he had already cremated his wife on 26.9.2011 In September 2011, Ct. Virender Singh, was posted in Traffic Circle, Sarita Vihar (SVC). On 20.9.2011 he was was deployed with the warrants of arrested (now Ex.PW2/A) in respect of a offender driver to execute in Assam and that process was for next date 27.09.2011 in the court. He took the warrants and made departure however, he did not return back. When in the morning of 27.09.2011, he was inquired on phone by the officer concerned, he apprised that warrants have been executed and report has been furnished but he cannot report for duty as his wife is hospitalized. He had requested also his one of the colleagues to give application for his leave on the ground of hospitalization of his S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 3 of 20 wife, the application was accordingly filed (now Ex.PW10/A), which was written by PW10 Ct. Ajay on the asking of PW17 SI Pankaj Kumar. Further, it is also revealed in investigation that it was accused Sukhbiri who had opened the doors of the quarter, when PCR official/PW HC Tara Chand visited in the night of 25/26.09.2011 and she had opened the doors. Later, since the said quarter no. 112, Police Quarter Shakar Pur was found locked. It was got unlocked and opened. The Crime Team was called and it was inspected, where a towel having blood stains hanging near washbasin and a double barrel breech loading gun (DBBL) point .12 gun were found, it were seized by the police. They were sent for forensic examination and blood was deducted on the towel (as per report now Ex.PW16/A) and male DNA profile was generated (as per report Ex.PW21/A) by FSL Rohini, besides the DBBL was also opined an Arms, under the provision of the Arms Act, 1959 (as per ballistic division report now Ex.PW26/A).
The dead body of Santosh had already been cremated when investigation commenced on 17.10.2011, however, the other material of mobile phones of Narender Kumar and other, their application forms, the calls details and certificate were collected. On 02.12.2011, accused Sukhbiri was arrested and then accused Narender was also apprehended, however, accused Virender Singh was arrested on 06.12.2011, the appropriate memos were prepared with regard to their arrest, personal search besides detailed questioned interrogation (now Ex.PW13/E) to accused Ct. Virender Singh. IO had also recorded statement of witnesses (including father and brother of deceased Santosh), statement of Pradhan of Village Sunehra, Bhagpat, UP, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 4 of 20 where cremation was performed, were recorded. The leave record of accused Ct. Virender Singh was also collected, inquired and statement of concerned officials were also recorded. Lastly, it result into a charge sheet u/s 302/201/120B IPC against accused Narender Kumar, his brother Virender Singh and their mother Smt. Sukhbiri.
Since, it was session triable case, it was committed to the court of sessions.
1.5 It is relevant to mention here that during the pending of this case, it became an old case, therefore, by the order of Ld. District & Sessions Judge, Shahdara District, some old cases have been transferred to this court and present case is one of them, received on 15.09.2017.
2.1 (Charge) - Accused Virender Singh and Smt. Sukhbiri have been charged u/s 302/34 IPC that on 26.9.2011 at unknown time but after 3:45 pm, at Quarter no. 112, Police Colony, Shakar Pur, Delhi, they in furtherance of their common intention committed murder of Smt. Santosh wife of accused Virender Singh, however, they pleaded not guilty and claimed trial.
2.2 Further, accused Narender, Virender Singh and Smt. Sukhbiri have been charged u/s 201/34 IPC that on 26.09.2011 at time unknown but after 3:45 pm, at Quarter no. 112, Police Colony, Shakar Pur, Delhi that all of them in furtherance of their common intention (while knowing or having reason to believe that offence of murder of Smt. Santosh wife of accused Virender has been committed) caused certain evidence connected with the said murder to disappear by S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 5 of 20 cremating the body of Smt. Santosh by taking the same to Village Sunehra and knowingly gave false information of natural death of Smt. Santosh with intention to screen the offenders from legal punishment, however, they pleaded not guilty and claimed trial.
3.1 (Prosecution Evidence) In order to prove and establish the charges against accused, the prosecution got examined 27 witnesses. Considering the nature of witnesses and their depositions, their names alongwith description of examination is classified as follows : (1) PW19 W/Ct. Sunita - CPCR to prove that in the night of 25.09.2011 and 26.09.2011, she was on duty Bshift in CPCR on channel no. 113 and she received a call at 3:43 am from mobile phone no. 9891760272, she filled up the PCR form (its attested copy is Ex.PW19/A) and transferred the call to concerned district.
(2) PW18 W/Ct. Pinki - CPCR - to prove that she was on duty and on the request of Inspector Akhilesh Kumar Mishra of P.S. Shakarpur, she provided transcript of five PCR call of night shift of 25/26.9.2011, she prepared the transcript (now Ex.PW18/A1 to Ex.PW18/A5) after hearing the recording of calls from the system and its true transcriptions on hard copies are in her writing.
(3) PW4 SI Devender - of ACDS/CPCR - to prove that on 26.09.2011, he was posted as SI RT (Radio Technician) at Automatic Call Distribution System (ACDS), where all calls received at 100 number are recorded automatically. Further, to prove that on 26.09.2011, five calls were received from phone number 9891760272, which were recorded on channel no. 113, 115, 117, 129 and 129. The record of those calls were transferred to audio CD (now Ex.P1) and handed over the same to IO on 02.11.2011 vide seizure memo (now Ex.PW4/A1), to which he is a witness.
(4) PW5 H.Ct. Tara Chand - to prove that on 25.09.2011, he was posted on Romeio24 PCR, East Zone, and on the night of 25/26.09.2011 at about 3:45 am, a call was received by him from Police Control Room 'that at Quarter no. 112, Police Colony, P.S. Shakar Pur, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 6 of 20 Delhi Sasural wale ka husband marne ki dhamki de rahe hain' and on receipt of this call, he alongwith staff reached at Quarter no. 112, P.S. Shakar Pur, Police Colony, the quarter was at first floor and the door was locked, it was knocked and then a woman aged about 6570 years opened the door and she was asked about the call but she responded as if no one made such call from her quarter nor there was any quarrel. Further, to prove that she did not permit for entry of HC Tara Chand and door was closed. It was knocked for quite sometime but neither anyone opened it nor responded from inside. Then, he came down and informed the Police Control Room that caller was not opening the door and let local police be sent. Lastly to establish that his statement u/s 161 Cr.P.C. (Ex.PW5/A) by police.
(5) PW3 H.Ct. Sugan Pal, of P.S. Shakar Pur - to prove that on the intervening night of 25/26.09.2011, he was posted in PS Shakar Pur and he was on emergency duty and it was about 3:45 am, he reached quarter no. 112, Police colony, Delhi on receipt of an information/DD no. 13A (Ex.PW3/A) "that at Quarter no. 112, Police Colony, P.S. Shakar Pur, Sasural wale or pati jaan se marne ki dhamki de rahe hain" and on reaching there, the quarter no. 112 was found locked and appropriate inquiry was also made nearby the quarter no. 112 about its inhabitant, finding no one there he came back to police station, it was apprised to SHO and Inspector ATO, then DD no. 13A was treated as untraced.
(6) PW20 Inspector Ravinder Kumar - to prove that on 17.10.2011 when he was posted in Police Station Shakar Pur, he made an endorsement (Ex.PW20/A) on the said untraced DD no. 13A of 26.09.2013 after gathering information as well as after perusal of news in the Navbharat Times and on the basis of such endorsement, case FIR no. 813/2011 (Ex.PW1/A) was registered u/s 302/201 IPC. Further, the investigation was carried by him and during that juncture, Crime team also comprising Scientist from FSL was called at said quarter, who discovered a towel (now P3) having blood stains, it was seized (as per seizure memo Ex.PW20/B) besides a .12 bore gun having serial no. 113 (now P2) was also found in the quarter and it was also seized (vide memo Ex.PW20/C). The further investigation (from 22.10.2011) was assigned to Inspector Akhilesh Kumar Mishra (PW24).
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 7 of 20(7) PW22 SI M.K. Manoj - for establishing that on 19.10.2011, he joined the investigation with PW20 and went to quarter no. 112, it was found lying locked, however, a keymaker Raj Kumar (now PW23) was called from the area and with the key prepared by him, the lock was unlocked and then inspection was carried inside the quarter, where a towel and double barrel gun were recovered, which were seized by memos (Ex.PW20/B and Ex.PW20/C), to which he is a witness.
(8) PW23 Raj Kumar - to prove that he is a keymaker functioning from the footpath of Vikas Marg and at the request of police officer, he had opened lock of quarter no. 112, Type II, Police Quarter Shakar Pur.
(9) PW1 H.Ct. Keshav Yadav - for establishing that on 17.10.2011, he was working as Duty Officer in PS Shakar Pur and at about 8:00 pm, on receipt of rukka/tehrir from SHO/PW20, he recorded formal FIR no. 813/11 u/s 302/201 IPC (Ex.PW1/A).
(10) PW24 Inspector Akhilesh Kumar Mishra - to prove that on 22.10.2011, when he was posted as Inspector investigation in PS Shakar Pur, he was assigned the investigation of this case, thus, he carried the investigation. He collected PCR form (now Ex.PW19/A) and also seized leave application, copy of DD no. 8 of 11.10.2011, DD no. 26 dated 30.09.2011, DD no. 5 dated 20.09.2011, DD no. 14 dated 30.09.2011 (now Ex.PW10/A, Ex.PW2/X to Ex.PW2/X5) pertaining to accused Ct. Virender Singh besides copy of nonbailable warrant (Ex.PW2/A) issued by the court, which was assigned by concerned TI to accused/Ct. Virender Singh for execution in Guhawati, Assam. PW24 also recorded the statement of PCR staff, who visited at quarter no.112 on midnight of 25/26.09.2011 visavis also got recorded statement u/s 164 Cr.P.C. of PW5 Tara Chand and PW17 SI Pankaj. In his further investigation accused Sukhbiri and Narender were arrested on 02.12.2011, appropriate memos were prepared pertaining to them as well as seize of Alto Car bearing registration no. DL2CAG7287 (which was used for carrying the dead body of Santosh to Village Sunehra, Baghpat; its photographs are Ex. PW15/I to PW15/L), mobile phone Samsung B379 (P1) at the instance of Narender. The judicial TIP of accused Sukhbiri was applied but it was refused by her. Accused/Ct.
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 8 of 20Virender Singh was also arrested. The call details alongwith application forms were also collected, which was also analyzed by PW24 in investigation.
(11) PW15 H.Ct. Surender - to prove that on 02.12.2011, when he was posted in PS Shakar Pur, he joined the investigation with IO/PW24 and during that phase, accused Narender and Sukhbiri were arrested, mobile phone and car were also seized, for which appropriate memos (Ex.PW15/A to Ex.PW15/H) were prepared, he is a witness to such record. The photographs (Ex.PW15/I to Ex.PW15/L) of said Maruti car were also taken.
(12) PW13 Ct. Ram Avtar to prove that on 06.12.2011, when he was posted in PS Shakar Pur, he joined the investigation with IO/PW24 and during that phase, he visited at quarter no. 112, Police Colony, Shakar Pur, where accused Virender Singh was arrested (vide arrest memo Ex.PW13/A) and his personal search was also carried, he is also witness to the other memos inclusive of record of electricity bill seized by memo (Ex.PW13/C).
(13) PW16 Ms. L. Babyto Devi, Senior Scientific Officer (Bio) FSL, Rohini to prove that on 19.10.2011, she was working as Senior Scientific Officer (Bio) FSL, Rohini and she alongwith team visited the spot at quarter no. 112, Police Colony, Shakar Pur, Delhi, which was thoroughly examined, one towel (now P3) having blood stains was found hanging near washbasin, which was handed over to the police for appropriate investigation; she prepared crime scene report dated 11.11.2011 (Ex.PW16/A).
(14) PW21 Sh. Naresh Kumar, Senior Scientific Officer (Bio) FSL, Rohini to prove that on 11.09.2013, he was working as Senior Scientific Officer (Bio) FSL, Rohini and the parcel containing a towel was examined by him and by applying the technique, male DNA profile was generated, for which report dated 26.4.2014 (Ex.PW21/A) was prepared. ........................
(15) PW6 Constable Vinod Kumar for establishing and proving DD No. 57B dated 08.09.2011, time 7.30 pm (Ex.PW6/A) of PS Sangam Vihar that HC Narender, No. 335/E was deputed in place of ASI Kartar Singh, however he had not reported the duties.
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 9 of 20(16) PW2 HC Lokesh - to prove that on 20.09.2011 he was posted as Moharrir/HC at traffic circle, Sarita Vihar (SVC) and there were warrants of arrest against a driver and Ct.Virender, No. 3454/T was deputed for Guhawati for executing the warrants (Ex.PW2/A) of TI Vijay Kumar. Further to prove that it was 27.09.2011 Ct. Ajay Kumar (PW10) from Kalindi Kunj traffic point came and informed the PW2 that Ct. Virender had telephoned Ct. Ajay Kumar/PW10 about sickness of wife of Ct. Virender and he needs 10 days leave and accordingly Ct. Ajay wrote leave application (now Ex.PW10/A) on behalf of Ct. Virender and to establish the record of relevant DD entries of SVC (viz D no. 8A dated 11.10.2011 mark PW2/X2, DD No. 5 dated 20.09.2011 mark PW2/X4, DD no. 14 dated 30.09.2011 at 2:00 pm mark PW2/X5 and DD No. 26 dated 30.09.2011 at 9:50 pm mark 2/X3) which were seized by seizure memo Ex.PW2/X1.
(17) PW10 Ct. Ajay - to prove that 27.09.2011 he was posted at traffic circle, Sarita Vihar with ZO/SI Pankaj Kumar (PW17) and Ct. Virender was also posted as Constable at traffic circle, Sarita Vihar. On that day, SI Pankaj told Ct.Ajay that Ct. Virender had informed him that he will not be able to attend duty till 10.10.2011 because of hospitalization of his wife and he needs leave, therefore, Ct.Ajay wrote leave application Ex.PW10/A at the request of SI Pankaj.
(18) PW17SI Pankaj Kumar - to prove that in September, 2011 when he was posted at Sarita Vihar traffic circle (SVC) Kalindi Kunj, then Ct. Virender was also in that traffic circle and Ct. Virender was sent to Assam to execute warrant, which were scheduled for 27.09.2011 and he was sent there with the permission of ACP. When Ct. Virender did not come back, then in the morning of 27.09.2011, PW17 contacted from his phone no. 9868363243 to Ct.Virender and he informed SI Pankaj Kumar that warrants have been executed and submitted the report in Saket Court, however, he was not able to report for duty because of hospitalization of his wife and he made request for leave. Ct. Ajay gave leave application (Ex.PW10/A) on behalf of Ct. Virender which was forwarded by PW17 with endorsement and signature at point X. (19) PW14 Sh. Gajender Singh Nagar, Municipal Magistrate1, Karkardooma - to establish that he had recorded the statements (now Ex.PW5/A) of HC Tara Chand and of SI Pankaj (now Ex.PW14/B) u/s S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 10 of 20 164 Cr.P.C and to establish the proceedings to this effect.
(20) PW7 Smt. Babita Panwar - to prove that she was Pradhan of village Sunehra District Baghpat U.P. and accused Virender Singh, Narender and Smt. Sukhbiri are native of that village and Smt. Santosh was wife of accused Virender Singh. The last rites of Smt. Santosh were performed in the field of village Sunehra about one year ago and she had issued certificate dated 17.11.2011 (Ex.PW7/A, she had reservations that portion X1 to X1 on the certificate was not written by police in her presence) about presence of relative and cremation of Smt.Santosh. (She was examined in the court on 03.10.2011).
(21) PW8 Jagmehar s/o Sh. Deep Chand - to prove that Santosh was daughter of this PW8 Jagmehar, she was got married with accused Virender Singh, both were working in Delhi Police and they were living in Police Quarters behind Shakar Pur. Accused Narender is brotherin law (Jeth) and accused Sukhbiri is motherinlaw of Santosh. Further, to prove that he had talked with his daughter Santosh on 25.09.201 and she died on 26.09.2011 (further he was examined to prove statement u/s 161 Cr.P.C. Ex.PW8/A, however, he did not come out as per that statement despite crossexamination on behalf of State, PW8 maintains that he had gone to village Sunehra, he seen body of his daughter and it was cremated in that village. Santosh was not keeping well as she was ill for the last about one year prior to her death).
(22) PW9 Ravinder Singh s/o Sh. Jagmehar Singh to prove that Santosh was his sister, she was married to accused Virender Singh. They were living in Police Quarters, Shakar Pur, Delhi. Further, to prove that he was informed by Brijesh (brother of Virender Singh) on telephone about demise of Santosh on 26.09.2011 (further he was examined to prove statement u/s 161 Cr.P.C. Ex.PW9/A, however, he did not come out as per that statement despite crossexamination on behalf of State, PW8 maintains that he alongwith his wife had gone to village Sunehra, where he had seen body of his sister and she was cremated in that village. He also maintains that his father was present during last rites and Santosh was not keeping well as she was ill).
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 11 of 20 (23) PW11 Sh. Rajeev Sharda, Nodal officer, Reliance Communication Ltd. for establishing that mobile phone no. 9027678084 was allotted in the name of Dharampal (as per CAF Ex.PW11/A), its call detail (Ex.PW11/D) pertains to the period 24.09.2011 to 28.09.2011. Similarly, mobile phone no.9313535312 was allotted to Narender Kumar, the call detail (Ex.PW11/D) pertains to the period 20.09.2011 to 30.09.2011.
(24) PW12 Sh. M.N. Vijayan, Nodal Officer, Tata Teleservices Ltd. for establishing that mobile phone no. 9278425209 was allotted in the name of Narender Kumar (as per CAF Ex.PW12/A), its call detail (Ex.PW12/D) pertains to the period 24.09.2011 to 28.09.2011.
Then prosecution evidence was closed.
4. (Statement of accused) - Then statement of all the three accused, without oath u/s 313 Cr.P.C., was recorded besides reply to general questions, however, all of them have responded the general questions visavis the other allegations explained to them, each of them has denied those allegations with plea of innocence, besides plea that Smt. Santosh died at Quarter no. 112, Police Colony, Shakar Pur, Delhi on 26.09.2011 at her place of residence, that information was also given to her parents, her dead body was also taken to Sunehra Village and last rites were performed in the presence of her parents and others. She was being looked after by her husband Virender Singh, she was under treatment from LNJP hospital as she was suffering from incurable disease. Except accused Virender Singh, other accused have not opted for defence evidence. DW1 Dr. Sandeep Garg, Professor of Medicine, Maulana Azad Medical College, associated with LNJP Hospital, Delhi has been summoned and examined.
5. (Final hearing) At the stage of final hearing, Sh. Shahabuddin, Ld. Addl. P.P. for the State, Sh. S.C. Bhuttan alongwith S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 12 of 20 Sh. Harkaran Singh, Advocates for accused persons Virender Singh and Smt. Sukhbiri and Sh. Kedar Yadav, Advocate for accused Narender Kumar made their final submissions. It does not require to reproduce their submissions verbatim, the same has been considered, which will be reflected also in the forthcoming paragraphs while assigning the reasons.
6.1. (Findings with reasoning) The contentions of both the sides are considered, keeping in view the material on record of oral testimony of witnesses, material collected during investigation, opinions rendered by experts, circumstances of the case, statutory provisions of relevant law and precedent.
6.2 While comparing the submissions of both the sides and also looking at the record, there are certain undisputed facts, the same are culled out as follows:
(i) Smt. Santosh had died at Quarter no. 112, Police Colony, Shakar Pur, Delhi on 26.09.2011.
(ii) Body of Smt. Santosh was taken to Village Sunehra, District Baghpat, U.P. and she was cremated there.
(iii) Village Sunehra is native place of accused persons and parents of the Smt. Santosh are living nearby that village.
(iv) PW7 Smt. Babita Panwar, Pradhan of that village Sunehra (of that period) had issued a certificate (Ex.PW7/A) on the letterhead that last rites of Smt. Santosh were performed in that village.
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 13 of 20(v) PW8 (father of deceased Santosh) and PW9 (brother of deceased Santosh) had also attended the last rites of Smt. Santosh in village Sunehra, District Baghpat, U.P.
(vi) PW27 SI Pankaj Panwar of local police station Khekda, District Shamli, U.P. was also present at the cremation ground on 26.09.2011, he looked into the situation after receipt of information and also inquired PW8 and PW9 besides mother of deceased Santosh, there was no complaint by any quarter or by the parents of deceased.
(vii) The dead body of Smt. Santosh was taken in vehicle from Delhi to Village Sunehra (although there are reservations, as per prosecution, it was Maruti Alto Car bearing registration no. DL2CAG7287, whereas on the other side, the plea is that it was an ambulance and not Maruti Alto Car).
(viii) Accused Virender Singh, Smt. Sukhbiri and deceased Smt. Santosh used to live in quarter no. 112, Police Colony, Shakarpur, Delhi, however, accused Narender Kumar was living separately in Mayur Vihar, Phase3, Delhi.
(ix) Smt. Santosh was under treatment because of her sickness and PW8 in his statement confirmed about the treatment being undergone by Smt. Santosh (while confirming about treatment papers Ex.PW8/D1 to Ex.PW8/D13 shown to him) which were also tendered through DW1 Sandeep Garg. Professor of Medicine, Maulana Azad Medical College, associated with LNJP hospital, Delhi.
(x) There is no eye witness of the incident.
S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 14 of 20
6.3 Since, it is not a case of direct evidence of any of the prosecution
witnesses as none of witnesses had seen incident of the homicide of victim but it is a case of circumstantial evidence, which is governed by law laid down in precedents. In precedent State of U.P. Vs Satish 2005 AIR SC 1000, the golden rule of Panchsheel was reiterated therein, which is: (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 cumulative, 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 guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(5) if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. [1992(3) RCR (Crl.) 63 (SC) ].
(6) while dealing with circumstantial evidence onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. [AIR 1984 SC 1622, 1996 (10) SCC 193 and 1990 (2) RCR (Crl.) 26 (SC)].
In another precedent Ventakesan Vs State of Tamil Nadu 2008 AIR SC 2396, law with regard to proof of offence by circumstantial evidence was laid down as S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 15 of 20 (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 cumulative 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;
(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 consistent with the guilt of the accused but should be inconsistent with his innocence.
(5) if the evidence relied on is reasonably capable of two inference, the one in favour of the accused must be accepted.
(6) onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. [AIR 1984 1622 (SC) ].
With this introduction of position of law, now the facts and features of this case are taken.
7. Taking the stock of entire circumstances, like features of the case, the undisputed facts culled out as referred in paragraph no. 6.2 above and the law on the point of circumstantial evidence, referred in paragraph no. 6.3 above, the following conclusions are drawn:
(a) the author of FIR is PW20 Inspector Ravinder Kumar and he had recorded the FIR on 17.10.2011 on the basis of news item appearing in the Navbharat Times on 15.10.2011 in respect of demise of Santosh on 26.09.2011, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 16 of 20
(b) this FIR no. 813/11 was registered by PW20 by reopening of earlier DD entry no. 13A dated 26.09.2011 (Ex.PW3/A) and on the basis of news item besides the other sources.
However, no evidence has been brought on record as to what was the source of that material nor any clue of verification of that information, just an expression is mentioned that FIR is registered on the basis of news item and information from other sources,
(c) there is no inquiry from the author of that news appearing in the Navbharat Times or alike,
(d) this kind of information, which remained unsubstantiated is like hearsay evidence and ld. counsel Sh. Kedar Yadav, Advocate for Narender has relied upon Borgaram Deuri Vs. Premodhar Bora (2004) 2 SCC 227 that news item are just hearsay information,
(e) there is no complaint by parents of the deceased Smt. Santosh, when the last rites were performed and PW8 & PW9 were also present physically on the cremation ground besides the local police officer/PW27, who had also conducted inquiry from them but no complaint was filed nor suspicious was raised,
(f) rather at later point of time, PW9 had filed an application dated 02.12.2011 (Ex.PW9/D1) to Deputy Commissioner of Police within District Shalimar Bagh, Delhi reaffirming that there is no suspicion or any grievances or complaint against anyone, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 17 of 20
(g) the Quarter no. 112, Police Colony, Shakar Pur, Delhi was also got opened by the police through a keymaker and the inspection was carried in the presence of a scientist, but no incriminating evidence was discovered. However, a towel was seized, which shows that DNA of a male was derived and preserved, no other scientific opinion is given whether it has any nexus with any other material,
(h) there is no public witness or statement of anyone to the effect that deceased Smt. Santosh was taken from Delhi in which vehicle to Village Sunehra and similarly, there is also no statement of any public witness to mention about the kind of vehicle in which deceased Smt. Santosh was brought at Village Sunehra,
(i) PW7 had issued a certificate (Ex.PW7/A), however, PW7 in her statement explained that this certificate bears her seal and signature but it is not in her writing. Secondly, the last portion (X to X) reflects that the dead body was brought in Maruti Alto, however, PW7 explained that her statement was before the portion 'X', where it ends and that statement was read over and accepted as correct, the subsequent portion X to X was introduced later on, that the dead body was brought in Maruti Alto Car, which she never stated so.
It is apparent on the face of certificate (Ex.PW7/A) that statement ends at the portion before commencement of portion X to X and there is no remark that she further gave statement of portion X to X or it was read over to her and accepted by her as correct, S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 18 of 20
(j) there is a distance between Delhi and Village Sunehra, Baghpat, many toll falls within that road distance, there is no proof of any documentary record from toll tax point of view or otherwise whether it was a Maruti Alto Car used for carrying the body of Smt. Santosh in that vehicle which was belonging to accused Narender Kumar,
(k) Smt. Santosh was undergoing medical treatment, it is affirmed by PW8, PW9 and this plea is also taken by accused during statement of prosecution witnesses, while referring record (Ex.PW8/D1 to Ex.PW8/D13) and the same record was tendered through DW1 Dr. Sandeep Garg, who was working in the unit of Dr. Richa Diwan, who was head of that Unit where Smt. Santosh was going under treatment. DW1 has categorically mentioned that death of Smt. Santosh was possible because of complications of the deceased she was suffering from and she was diagnosed of operative case of congenital heart disease with mixed connective tissue disorder (diffuse cutaneous scleroderma with interstitial lung disease). This disease is a multi systemic disease which can involve heart, brain, kidneys and lung, skin etc and except kidney, other organs of Santosh were involved because of the disease she was suffering from.
8. Thus, taking the consolidated stock of all material, particularly as discussed and conclusions in paragraphs no. 6.2 and 7 together, alongwith the position of law referred in paragraph no. 6.3 above, it is held that the charges could not have been proved beyond reasonable doubt, therefore, all the three accused persons namely Virender Singh, Narender Kumar and Smt. Sukhbiri are acquitted of charge u/s 201/34 S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 19 of 20 IPC and accused persons Virender Singh and Smt. Sukhbiri are acquitted of charge u/s 302/34 IPC by extending them benefit of doubt.
9. Accordingly, this case stands disposed off. The personal bonds and surety bonds of all three accused persons are discharged and cancelled. However, they are required to furnish their bonds u/s 437A Cr.P.C. within a week.
Announced in open court today Wednesday, Kartika 3 Saka 1939.
(Inder Jeet Singh) Additional Session Judge04 (Shahdara), KKD Courts, Delhi 25.10.2017 S.C. No. 66/17 State Vs. Narender Kumar & Others. Page 20 of 20