Delhi District Court
State vs Wazid @ Montey Etc on 18 August, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.74/09
FIR No.761/04
U/s 302/396/34 IPC
PS Lajpat Nagar
State
Vs.
1. Wazid @ Motey s/o Sahzaad
2. Amit @ Mantal @ Pawa s/o Kartik Mandal
3. Mobin @ Mahesh @ Isha s/o Mohd. Hafiz
4. Vishal @ Pappu s/o Jagat Ram
........ Accused
Challan filed on : 13.01.05
Received by Fast Track Court on:05.10.09
Reserved for Order on : 09.08.2010
Date of Pronouncement : 18.08.2010.
JUDGMENT
Briefly stated the facts of the prosecution case are that on 29.9.04 SI Aishveer received information regarding lying of dead body in Shambu Dayal Bagh behind Lotus Temple which was recorded in DD no.11 copy of which is Ex.PW10/A and on receipt of this DD he reached at the spot where he saw a dead body in pool of blood lying near a patri under construction behind Lotus Temple and one newspaper having blood stains was also lying there. One rexine State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 1 of 48 bag, a wrist watch and a wallet was also found there and identity of deceased was known as Jagdish. No eyewitness was found at the spot. IO made his endorsement Ex.PW17/A on DD no.11 Ex.PW10/A and got the case registered. Crime team was summoned at the spot and spot was got photographed. Proceedings u/s 175 Cr.PC were conducted. The deceased was identified by his father as Jagdish. The post mortem was got conducted. The investigation has been done and accused persons were arrested. The belongings of deceased were recovered from them. After completing the investigation, the challan u/s 302 IPC was filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 04.02.05.
3. The charge against the accused Wazid, Amit @ Mental, Mond Mobin @ Mahesh and Vishal has been framed u/s 396/302/34 IPC on 09.03.05 by my Lords Hon'ble Mr. Justice S.L.Bhayana, the then Ld. ASJ to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 19 witnesses.
State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 2 of 48
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Accused persons have also examined DW1 Iftkar in their favour. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.Counsel on behalf of the accused, I have perused the testimonies of all the PWS.
8. PW1 Sri Chand has deposed that on 29.4.04 when he was returning from park after walk at about 8.30 a.m, he saw two boys on the road behind Kamal Mandir going towards the side of jungle. After about 15-20 minutes three boys came running from inside the jungle. On the same day at about 7 or 7.30 p.m he saw that police was making enquiry from some boys at Garhi Eskon Mandir regarding murder taken place behind Kamal Mandir. He enquired from the police about the particulars of murder and police told him that they had recovered State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 3 of 48 the dead body at 9 a.m. He told the police that he returned from that place at about 8.45 a.m and further told that he had seen two boys going towards that side where the murder had taken place. He had also told that he had seen three boys coming from the side of jungle. He also told that he can identify those boys. He has further deposed that on 20.10.04 when he was returning from Kalka Mandir he saw all the four accused present in the court namely Wajid, Amit, Mobin and Vishal taking prasad in bhandara and he had seen them in the morning of 29.9.04. He told the police personnel patrolling in the area and police apprehended all the four accused persons on road between Kalka Mandir and Eskon Mandir. Police interrogated them and recorded their disclosure statements. The disclosure statement of accused Wazid is Ex.PW1/A, accused Amit is Ex.PW1/B, accused Mobin is Ex.PW1/C and Accused Vishal is Ex.PW1/D. He has further stated that one chain was recovered from accused Wazid which he was wearing and one small radio was recovered from accused Vishal. No knife was recovered from any of the accused but accused Amit had told in his disclosure statement that he had kept the knife used at some park in New Friends Colony. No knife was recovered from accused Amit and Wazid. He has further stated that accused Amit, Vishal, Mobin and Wazid were arrested vide memo Ex.PW1/A1 to A4 and their personal search were conducted vide memo Ex.PW1/F1 to F4. He proved the pointing out memo of accused which are Ex.PW1/G1 to State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 4 of 48 G4. The chain was taken into possession vide memo Ex.PW1/H. One small radio was recovered from accused Vishal which was seized vide memo Ex.PW1/J. No recovery has been effected in his presence from accused Wazid. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has denied that the knife was recovered from accused Wazid vide memo Ex.PW1/K, sketch of which is Ex.PW1/L. He denied that Ex.P1 (knife) is the same which as got recovered at the instance of accused Wazid. He can identify the radio. He denied the suggestion that FM Radio which is Ex.P3 was recovered from accused Mobin who is present in the court and not from accused Vishal. He identified the chain Ex.P4 recovered from accused Wazid
9. PW2 Om Prakash has deposed that on 29.9.04 his brother in law Karan Singh telephoned him about the murder of Jagdish his son at Shambu Dayal Park and reached there and identified the deadbody vide statement Ex.PW2/A.
10. PW3 Karan Singh is the father of deceased Jagdish and he has deposed that his son used to work as Peon in Nehru Place. AT about 11.45 a.m he was informed that his son is in PP Nehru Place where he had gone and came to know that his son had been murdered in a park near Lotus Temple. He went there and identified the dead State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 5 of 48 body. He took into possession the belongings of his son vide Ex.PW3/A. Police lifted earth control vide memo Ex.PW3/B. Blood stained stone, earth having blood, blood was lifted from the spot and newspapers were seized vide memo Ex.PW3/C to G. Stone piee is Ex.PW3/PX1, piece of newspaper is Ex.PW3/PX2, chain is Ex.PX4, small FM Auto Scan Radio is Ex.P3
11. PW4 Jitender Singh has deposed that he alongwith deceased used to come by train to Delhi and on the day of incident he had got down from the train in the morning at 8.30 a.m at Okhla and at about 2 p.m he came to know about the murder of Jagdish.
12. PW5 Dr.Shalini Girdhar has deposed that he conducted the post mortem on the dead body of deceased Jagdish on 30.9.04 and PM report is Ex.Pw5/A. She also gave subsequent opinion which is Ex.PW5/B.
13. PW6 Ct. Sumit Kumar has stated that he deposited the exhibits in FSL.
14. PW7 Ct. Naveen Kumar has deposed that on 22.10.04 he alongwith SI Aishbir and ASI Rajender with accused Wazid went to Rooppediya District Behraich and on 23.10.04 accused Wazid led State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 6 of 48 them to his house in village Ranjeetwa and pointed out one room and got recovered one shirt having blood stains, hanging on the bamboo of chhappar and told that it was worn by him at the time of incident. It was sealed and taken into possession vide memo Ex.PW7/A. He identified the shirt Ex.P5.
15. PW8 HC Netra Pal has deposed that on 29.9.04 he received intimation vide DD no.7 Ex.PW8/A regarding lying of dead body at the back side of Lotus Temple. He reached there and found the dead body lying there with stab injuries. He handed over DD no.7 to IO.
16. PW9 SI Mahesh Kumar has prepared the scaled site plan Ex.PW9/A.
17. PW10 ASI Jagar Pal has deposed that on 29.9.04 on receipt of DD no.11 Ex.PW10/A he reached at the spot and found dead body lying on the patri and bag was hanging on the shoulder. He informed the SHO and SI Aishveer prepared rukka on DD and got the case registered. Crime team came at the spot and took some photographs. IO lifted blood stained stone and earth and seized vide memo Ex.PW3/B,C,D, E and F. The black colour bag lying below the dead body was containing three tiffin boxes, playing cards wrapped in newspaper and wrist watch was there in the hand of deceased and he State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 7 of 48 was wearing rexine chappals. In the purse of deceased some phone numbers were found and his father Karan Singh was informed who came and identified the dead body as of Jagdish. Karan Singh also called his brother in law at the spot. The articles were taken into possession vide memo Ex.PW3/A. The newspaper found lying at the spot was taken into possession vide memo Ex.PW3/G. The dead body was having six stab wounds. Proceedings u/s 174 Cr.PC were conducted and dead body was sent to Mortuary where it was identified vide memo Ex.PW10/A and Ex.PW2/A. He identified the stone piece Ex.PW3/PX1, piece of newspaper Ex.PW3/PX2, bag Ex.P5, wrist watch Ex.P7, tiffin boxes Ex.P6/1 to 3, playing card set Ex.P8, filmi song newspaper Ex.P9/1 to 3, pair of rexin chappal Ex.P10/1 to 2 and visiting cards, two photographs of actors, three railway passes Ex.P11.
18. PW11 Ct. Heera Lal was posted as DD writer on 29.9.04 and he recorded DD no.11 copy of which is Ex.PW10/A which he handed over to ASI Jagarpal. He also made departure entry.
19. PW12 HC Arjun Prasad was posted in Police control room and on receipt of information regarding lying of dead body at Shambhu Dayal Bagh near Kamalphool Mandir, he filled up PCR form and passed the information to Eagle net. The form is Ex.PW12/A. State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 8 of 48
20. PW13 Ct Sanjay has recorded DD no.7 copy of which is Ex.PW8/A and handed over the same to HC Netra Pal and he also informed the duty officer PP Garhi.
21. PW14 HC Dalip Singh has deposed that he recorded the FIR of this case copy of which is Ex.PW14/A.
22. PW15 SI Ravinder Singh has deposed that he joined the investigation on 20.10.04 with Insp.Ranbir Singh and he alongwith other staff were present near Iskon Temple at about 5 p.m where one public person Shri Chand came and disclosed to Insp.Ranbir that on 29.9.04 in the morning hours when he came for physical exercise in Shambhu Dayal Park, he saw five boys committing a crime. He has further deposed that Shrichand further disclosed that out of five boys, four are present in Shambu Dayal Park and if raid is conducted they can be apprehended. The spot was raided and four boys were apprehended whose names were revealed as Wazid, Mobin, Vishal and Sumit @ Mental. One knife was recovered from accused Wazid. Mobin was also found keeping a knife again said Sumit @ Amit had got recovered later on a knife from Julena Park. The sketch of knives are Ex.PW1/L and K and same were seized vide memo Ex.PW15/A and Ex.PW1/M. All the accused gave confessional statements which State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 9 of 48 are Ex.PW1/A,B,C and D. They also pointed out the spot vide memo Ex.PW1/G1 to G4. Wazid was found wearing a gold chain on his person and accused Mobin was also holding FM in his pocket. Accused Wazid also disclosed about keeping of his shirt in his native village Rupadia border. Accused Wazid took them to his native village and got recovered one shirt (blood found near sleeve right side) which was seized vide memo Ex.PW7/A. He identified two knives Ex.P1 & P2 and FM Radio Ex.P3 and gold chain Ex.P4 and shirt Ex.P5.
23. PW16 Sh Sudesh Kumar, Ld.ASJ, the then Ld. MM has conducted the TIP of case property on 13.12.04 and he has deposed that witness has identified the chain correctly. The proceedings are Ex.PW16/A.
24. PW17 SI Aishveer is the IO of this case and after reaching at the spot he recorded tehrir Ex.PW17/A and got the FIR recorded through Ct. Mahavir. He lifted the articles lying at the spot. He has thereafter joined the investigation with Insp.Ranbir Singh and deposed that photographer from crime team took the photographs and Insp. Ranvir carried out the inquest proceedings. Belongings of deceased were seized vide memo Ex.PW3/A. Sample of blood through blood gauze, blood stained earth and earth control were lifted. Newspaper lying at the spot was also seized vide memo Ex.PW3/G. He has further State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 10 of 48 stated that on 20.10.04 police party comprising of Insp.Ranvir, ASI Ravinder and other 4/5 constables were present at Iskon temple in patrolling and at that time one Srichand came and gave information to Insp. Ranvir that the boys he notice in Shambu Dayal bagh on 29.9.04 at about 9 a.m, four of them are present in Shambu Dayal bagh and if raid is conducted, they can be apprehended. Raid was conducted and four persons were apprehended and on search of accused Wazid one knife was recovered and accused Mobin was found having one FM Radio with headphone. Accused Wazid was found having a golden colour chain on his neck and all the accused confessed their guilty with their fifth accused namely Saddam together had robbed the deceased on 29.9.04 in Shambu Dayal Bagh and when deceased tried to escape and called abuses to accused persons, they confessed and disclosed that they chased him, caught hold of him and murdered by inflicting knife stab injures. He further deposed about arrest of all the four accused persons, conducting their personal search. IO prepared the sketch of knifes and seized the same. From accused Mobin one FM was recovered which he disclosed that he snatched from the pocket of deceased. Chain and FM radio were seized. The disclosure statements of accused persons were recorded which are Ex.PW1/A to D and accused persons pointed out the place of incident. He has further stated that accused Amit led the police to Julena Park and went inside the park and from the corner of police booth lane took out one knife from State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 11 of 48 beneath the earth grass and stated to IO that it was used by him in the commission of offence. The sketch of knife is Ex.PW1/K and it was seized vide memo Ex.PW15/A. He has further stated that on the instruction of SHO he alongwith ASI Ravinder, Naveen and accused had gone to Beahraich UP where accused Wazid got recovered a shirt (black and white strip) which was hanging and it was seized vide memo Ex.PW7/A. Seizure of shirt was made on 23.10.04. He identified the case property.
25. PW18 ACP Ranbir Singh has deposed that on 29.9.04 he received information at about 11 a.m that one boy has been murdered in Dayalbagh. He reached at the spot and found dead body of one boy near patri having stab injuries and his name came to know as Jagdish and near the dead body blood stained newspaper was lying and one gunny bag was having on the shoulder of dead body. ASI Aishveer had disclosed to him that he has already sent the rukka. He prepared the site plan Ex.PW18/A. He conducted the inquest proceedings and dead body was identified by Karan Singh and Om Prakash. He inspected the dead body and found some belongings i.e.visiting cards wrist watch make Indostar,rexin bag, tiffin box, playing cards and pair of black colour chappal and he seized the same vide memo Ex.PW3/A. He sent the body for post mortem and seized the blood stained stone vide memo Ex.PW3/C. He lifted the blood from the spot with the help State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 12 of 48 of gauze and seized vide memo Ex.PW3/F. He got the post mortem conducted and after Post Mortem handed over the dead body to the relatives vide memo Ex.PW18/D. He has further stated that he alongwith other staff were present near Iskon temple where Sirichand met and disclosed them that the five assailants who committed the murder are still available in Dayalbagh area and the four accused were apprehended at the instance of Sirichand. They were arrested and their personal search were conducted. They made disclosure statement. On search of accused Wazid one knife was recovered, sketch of which is Ex.PW1/L. On search of Mobin one FM small size radio with head phone was recovered and he disclosed that he robbed the same from the deceased. The same were seized vide memo Ex.PW1/J. He has further deposed that one golden colour chain has been recovered from accused Wazid after putting off from his neck which was also seized vide memo Ex.PW1/H. Accused pointed out the place of incident . He has further stated that he alongwith other police officials and accused persons went to New Friends Colony in Juilaina Park and got recovered a knife after digging some soil in the park. The sketch of the knife is Ex.PW1/K and it was taken into custody vide memo Ex.PW15/A. He got conducted the TIP of case property. He sent the exhibits to FSL. He got prepared the site plan Ex.PW9/A. He collected the post mortem report Ex.PW5/A and obtained the expert opinion. He identified the exhibits.
State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 13 of 48
26. PW19 SI RS Naruka is the witness from crime team and he inspected the spot and prepared his report Ex.PW19/A.
27. I have also considered the testimony of DW1 Iftkar who has stated that on 7.10.04 he was working in Okhla Subzi Mandi and he saw that accused Isha was being taken by the police. He asked the police wala as to why he is taking accused and they told that he will be released after making enquiry. He went back to his home and made call to the room of accused but he had not reached over there.
28. Before analyzing the testimonies of each witness, it is necessary to discuss some case laws. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that:-
'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body - House of the appellant situates at some distances from the place of recovery of dead body - No ground to hold the accused guilty for the commission of the crime'.
It is stated in Hasan Murtza Vs. State of Haryana, AIR 2002 Supreme Court 762 that:-
S.300 - Murder - Proof - Allegations that accused - husband on account of material discord committed murder of his wife State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 14 of 48 by dousing her with petrol and setting her ablaze - eye witnesses, mother of deceased has made material improvements in her evidence to prove her presence in house of deceased - Fact that said eye witnesses suffered no injury in process of protecting her daughter from burning to death, further enhances the suspicion as to her presence at time of incident - No person other than said eye witness claims to have seen accused at the scene of occurrence - No incriminating evidence e.g any material like burns or even soot from the burning of body to which accused must have suffered standing close, was noticed in the person or the clothes of accused - Mere fact that accused is proved to be not a good husband or father would not ipso facto lead to conclusion that he would commit the murder in question - conviction of accused solely based on testimony of eye witness, not proper.
It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710- 11, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
'10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty 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 consistent with the guilt of the accused but should be inconsistent with his innocence'.
It is further held that : -
'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 15 of 48 in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8'.
'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
In case Law (2007) 6 Supreme Court Cases 32, Sujoy Sen Vs. State of West Bengal it is stated in headnote that:-
'Criminal Trial - Circumstantial evidence - Link in the chain of circumstances - If established - On the testimony of the first informant and what was stated in the FIR, held, link in the chain of circumstances not established - conviction reversed, Penal Code, 1860 - Section 302'.
In case law (2006) 10 S.C.C 183, Sunny Kapoor Vs. State, it is stated in head note that :-
'Criminal trial - Circumstantial evidence - Guilt not established - Held, for proving guilt of an accused u/s 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else - In the instant case, evidence adduced clearly fell short of the requirement and hence conviction of appellant u/s 302/34 unsustainable'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 26-27) that :-
'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 16 of 48 utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration'.
It is stated in Idrish Bhai Daudbhai Vs. State of Gujarat, 2005, CRI. L.J. 1422 that :
'Penal Code (45 of 1860), Ss. 34, 300 - Common intention - Development at spur of movement - Altercation between accused and deceased over land transaction - Appellant accused alleged to have given stick blow on head of deceased - Other accused inflicted injuries with sickle and knife - Absence of material on record to show pre-concert or pre-arranged plan - If appellant accused exhorted after injuries were completed - He cannot be held guilty of sharing common intention with other accused - And it was first person to inflict injuries it was unlikely for him to imagine that other accused would go back to their house and bring weapon and inflict injuries - Thus common intention was not developed even at spur of movement - In such case exhortation by itself would not constitute common intention
- Further absence of stick injury in inquest punchnama - Eye witnesses were also interested witnesses - Accused held entitled to benefit of doubt'.
It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that :-
'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 17 of 48 accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete go-by given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.
29. In the overall analysis of the testimonies of all the witnesses it is revealed that PW1 Srichand had seen the accused persons at the place of incident, PW2 Om Prakash and PW3 Karan Singh, Uncle and father of deceased have identified the dead body and PW4 Jitender Singh used to accompany the deceased in the train and remaining are the police officials. In this case no one had seen the accused persons committing the murder. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 18 of 48 shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. So, in this case first the prosecution has to establish the presence of accused persons on the spot with deceased. PW4 Jitender Singh used to accompany deceased Jagdish in train to Delhi and he has stated that deceased got down from the train in the morning at about 8.30 a.m at Okhla and at 2 p.m he came to know about his murder. PW1 Srichand is the public witness who has stated that on 29.4.04 after exercising he was returning home at about 8.30 a.m, when he saw two boys on a road behind Kamal Mandir going towards the side of jungle. He has seen two boys at about 8.30 a.m while as per the version of PW4 he alongwith deceased got down from train at about 8.30 a.m at Okhla Railway Station. Further PW1 has stated that after about 15-20 minutes, three boys came running from inside the jungle. I have seen Okhla Railway Station as well as the spot where the deadbody was lying. The distance between both the places is about one to two kilometer and it can easily take 15/20 minutes to reach at the spot from the Railway Station. It seems that by the time deceased reached there, the boys who were seen by PW1 had already gone from there. Further the version of PW1 "going towards jungle" has been improved by him.
He has also stated that he saw three boys coming in running condition from jungle side. But he improved by saying word jungle and he has State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 19 of 48 only stated that he saw three boys running. PW1 has further stated that he was saying why those boys are running. This has also been improved by him. He has further stated that at about 7/7.30 p.m he saw police making enquires from some boys at Garhi, Eskon Mandir regarding Murder and he went there and enquired as to what was the matter. Police told that a murder had taken place behind Lotus Temple. He enquired as to what time murder had taken place. Police told that they had recovered the dead body at about 9 a.m. He told the police that he returned from that place at about 8.45 a.m. He told the police that he had seen two boys going towards that side where the murder had taken place and he had also seen three boys coming from the side of jungle. Police told him if he comes across those boys he must tell them. This witness was present at the spot. He has not heard any scream of deceased. He has not stated that he saw the accused persons in the company of deceased Jagdish. Further he has stated that on 20.04.04 he saw four accused Wazid, Amit, Mobin and Vishal taking parsad in bhandara and these were the persons who were seem by him on 29.9.04. He saw police personnel while patrolling near Eskon temple and told the police about the presence of accused persons in Bhandara and Police apprehended all the four accused persons near bhandara on a road between Kalka Mandir and Eskon Mandir. He has further stated about recording of disclosure statement of accused persons and that one chain was recovered from accused State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 20 of 48 Wazid and one small radio from accused Vishal. No knife was recovered in his presence. He has stated about arrest of all the accused persons. Chain and FM radio were taken into possession by the police. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State and he denied the suggestion that sketch of knife recovered from accused Wazid was prepared in his presence. He has specifically denied about recovery of knife from accused Wazid. He did not identify the knife Ex.P1. He denied that FM radio Ex.P3 was not recovered from accused Vishal and it was recovered from Mobin. I have also perused his cross examination. It is revealed that he has also made improvement in his statement that he has told the police in his statement that on the same day evening at about 7 or 7.30 pm police was making enquiries from some boys at Garhi Eskon Mandir Road regarding murder having taken place behind Kamal Mandir and he enquired from the police as to at what time the murder had taken place on which police told that it recovered dead body at about 9 a.m. The above version of PW1 has come under improvement. It has not been recorded in his statement dated 29.9.04. Since this version of PW1 has come under improvement, it seems that he had not met the police on 29.9.04 and neither he enquired anything nor police told him anything. He further improved that police told him that he must tell them if he come across those boys. Since he improved the above statement, it seems that his statement was not recorded by the Police State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 21 of 48 on 29.9.04 i.e. the day of incident and it was recorded later on to solve this present case. If he had met the police on 29.9.04, the above version should have been recorded in his statement by the IO. Further, PW1 in cross examination has stated that he saw all the four accused person taking prasad in a bhandara at Kalkaji Mandir and this version of PW1 has been mentioned as "the accused had taken prasad at Kalkaji Temple and after that they left the temple'. PW1 has stated in his examination in chief that accused were apprehended near bhandara on a road between Kalkaji Mandir and Eskon Mandir while in his statement recorded by the police he has stated that after taking prasad they left the temple. He has further stated that at the time of arrest, public persons were going and coming and police did not ask any other person to join the investigation. Police interrogated accused Wajid about this case and accused made disclosure that he had committed the murder of deceased and he had kept concealed knives used in the crime in jungle and he could get the same recovered while as per the case of the prosecution, one knife was recovered from accused Wazid at the spot when he was arrested. So, this witness has made inconsistent statement in this respect. He admitted that in his statement he told the police that accused Wazid and Amit were apprehended in Shambu Dayal Park. The distance between Kalkaji Mandir and Shambu Dayal Park is 1000 yards. He has further stated that perhaps his statement was recorded 3-4 times at the spot on the State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 22 of 48 same day. In view of the testimony of PW1 he has stated that he had seen the accused persons in the morning of 29.9.04 in Shambu Dayal Park while going towards jungle and coming out of jungle. But this version of PW1 has been improved by him regarding going towards jungle. Further he was present there near the spot but he has not heard any voice of scream. He has not stated that first he saw two boys entering the jungle and then saw three boys coming out of the jungle while at his instance four boys were apprehended and arrested as per the case of the prosecution. He has stated that one FM radio was recovered from accused Vishal while as per the recovery memo it was recovered from accused Mobin. One knife was recovered from accused Wazid but he has specifically stated that no knife was recovered in his presence from accused Wazid. In this respect he has further stated that accused Wazid disclosed that he had concealed the knives used in the crime in jungle. He has not stated in his statement u/s 161 Cr.PC regarding his meeting the police on 29.9.04 i.e. the day of incident and disclosing that he had seen the accused persons at the spot. As per testimony of PW4 Jitender Singh, deceased got down from the train at 8.30 p.m at Okhla and PW1 had seen the two boys going towards the side of jungle at 8.30 a.m and after 15-20 minutes saw three boys running from inside the jungle. The time taken to reach at the spot from Okhla Station may be 15/20 minutes on foot. In this case no one had seen the accused committing the crime. As per State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 23 of 48 testimony of PW1 he has tried to establish the presence of accused persons at the spot. But he has not stated that he has seen the accused persons in the company of deceased there or that he had seen deceased also passing from there. PW15 SI Ravinder has stated that Srichand disclosed to ACP Ranbir that he saw five boys committing a crime and those five boys had been assaulting a boy with a knife blows by surrounding him. This version of PW15 has not been corroborated by PW1 Srichand that he had seen those boys committing the crime and even that he had seen the said boys with the deceased. In view of the above discussions of testimony of PW1 and 4 and glaring contradictions, the last seen is absent in this case.
30. Another chain of circumstances in this case is arrest of accused persons. It has been stated by PW1 Srichand that all the four accused persons were arrested from near bhandara on the road between Kalkaji Temple and Iskon Temple. PW15 SI Ravinder Singh, PW17 SI Aishveer and PW18 ACP Ranbir Singh are the witnesses of arrest of accused persons. PW15 and 17 have stated that Srichand disclosed to ACP Ranbir, the then Inspector that out of those five assailants, four are present in Shambu Dayal Park and they could be apprehended if place is raided. PW18 has also deposed the version of PW15 & 17 in this respect and they have stated that all the four accused were arrested from Shambu Dayal Park. On the other hand at State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 24 of 48 the instance of whose the accused have been arrested in this case i.e. PW1 has stated that the accused persons were apprehended from near bhandara on road. Further PW15 has stated that Srichand had given information to SI Aishveer while in examination in chief he has stated that Srichand met with Insp. Ranbir and disclosed to him about the accused persons. PW15, 17 as well as 18 could not tell as to which accused was apprehended by which police official. Even they have not stated as to which accused was apprehended by them individually. So, there are contradictions about arrest of accused persons in this case as public witness PW1 has stated that they were arrested from near bhandara on road and Police witness have stated that they were arrested from Shambhu Dayal Park. As per the testimony of PW1 Shrichand first he had seen two boys entering in the jungle and later on three boys coming out of the jungle then as to how fourth boy has come in the picture when he had not seen four boys prior to taking prasad in the bhandara. So, arrest of accused persons could not be proved conclusively by the prosecution.
31. Another circumstance is recovery effected from the accused persons. Allegedly one knife was recovered from accused Wazid at the time of his arrest. PW15, 17 & 18 have stated that knife was recovered from accused Wazid at the time of his apprehension. PW1 Srichand was also present there. But he has stated that no knife was recovered State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 25 of 48 from accused Wazid. PW1 has been declared hostile by the prosecution on this aspect but in vain. He has denied that sketch of the knife which was recovered from accused Wazid was recovered in his presence vide memo Ex.PW1/K. He did not identify the knife.I have also perused the file and Ex.PW5/B i.e. sketch of knife prepared by the doctor and sketch of knife prepared by IO which is Ex.PW1/K. On tallying both the sketches, it is revealed that the measurements mentioned by the IO and doctor are different and contradictory to each other. PW5 Doctor has stated that the injuries mentioned in the post mortem report can be possible by the alleged weapons of offence. Considering the sketches prepared by IO as well as Doctor, it seems that the doctor has not examined the knife which was recovered by the IO in this case since the sketch do not tally. The knife has not been sent by the IO to FSL for examination. So, the recovery of knife from accused Wazid is doubtful in this case.
32. Further, as per the testimony of PW7, 15, 17 & 18 one blood stained shirt was got recovered by accused Wazid from his house at Roopediya, village Ranjeetwa. Allegedly the said shirt was worn by the accused at the time of commission of crime. The present case incident has taken place on 29.9.04. The accused persons were arrested on 20.10.04 allegedly from Shambu Dayal Park. The alleged shirt was recovered on 22.10.04. It was recovered from a bamboo State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 26 of 48 chappar outside the house of accused and it was hanging at that time. The alleged shirt remained blood stained and hanged for about 23 days. PW7 has stated in cross examination that they went to his house in Jeep of local police. Persons of locality did not collect there. The house was having one room and chappar outside. The father of accused was inside the house. He does not know if local police signed the recovery memo. Recovery memo was prepared at the PS again said at the house of accused. Some locality persons came there at the time of recovery of shirt. He does not know whether any entry was made in the PS Roopdiya or not. First this witness has stated that no public person collected there and then he changed his stand and stated that public persons collected there. PW15 has stated that they went to village of Wazid in private vehicle. Driver of the said vehicle has not been made witness. He has further stated that DD was lodged in PS Rupdiya. But no DD entry has been produced in the court or exhibited. Even DD number has also not been mentioned. No witness from PS Rupdiya has been examined to establish that they visited there for recovery of shirt. PW17 SI Aishveer has stated that the seizure of shirt was made on 23.10.04. In cross examination PW17 has stated that he had gone to the village of accused Wazid in the early morning at about 6 a.m on 20.10.04. When he had gone to the village of Wazid in the morning of 20.10.04, it is not understandable as to how he was present when allegedly the accused persons were arrested on 20.10.04 at about State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 27 of 48 5 p.m. He has further stated that statement of local police was not recorded. The mother of accused Wazid had met them there while PW7 has stated that father of accused Wazid met them there. He denied the suggestion that shirt was taken from accused and subsequently blood was put on the shirt. AS per the testimony of PW7 the police officials had gone to PS Roopadiya on 22.10.04 and from there to the house of accused Wazid on 23.10.04. However, as per the cross examination of PW17 SI Aishveer they had gone on 20.10.04 and PW15 has stated that they reached in Rupaihera on 22.10.04 at about 4 a.m. It means they visited the house of accused Wazid on 22.10.04 itself. It is not understood as to why the seizure memo was prepared on 23.10.04 when they had gone on 20.10.04 or 22.10.04. It seems that after coming to Delhi the seizure memo of shirt was prepared and thereafter it was sealed. As per the testimony of all these witnesses, the recovery of shirt has been effected from a open place. It is well settled law that such recoveries are not good recoveries.
33. Allegedly one chain has also been recovered from accused Wazid and one FM Radio has been recovered from accused Mobin at the time of their arrest. It has also been identified as Ex.P3 & P4 by PW3 Karan Singh who is the father of deceased. In his statement PW3 has no where stated that his son used to wear chain in his neck and he can identify the same or his son used to have FM Radio. In cross State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 28 of 48 examination PW3 has stated that he did not produce any proof of ownership of Ex.P3&P4. He had not stated to the police in his statement that he was having Ex.P3 & P4. He admitted that police had shown him Ex.P3 and Ex.P4 and then he identified Ex.P3 and P4 belonging to his son. He further admitted that these items are available in the market. The TIP of Chain has been conducted by PW16 Sh Sudesh Kumar, Ld. ASJ, the then Ld.MM. He has stated that TIP proceedings are Ex.PW16/B and that Karan Singh has correctly identified the chain. But PW3 Karan Singh has stated that the police had shown him Ex.P3 and Ex.P4 and then he identified the same belonging to his son. It seems that these items have been planted upon the accused persons and that is why these were shown to the witness before identification in TIP. So, the TIP is not admissible in evidence. Further PW1 Srichand in whose presence the above articles were recovered, has stated that one chain was recovered from accused Wazid which he was wearing and one small radio was recovered from accused Vishal. As per the evidence available on file and case of the prosecution, small radio (FM) has been recovered from accused Mobin. Allegedly the chain and FM radio has been taken away by the accused persons in this case. I have also perused the photograph of deceased and one watch is visible in his arm. If the accused had taken chain and FM Radio, they could also have taken the said watch but to the contrary it was in the arm of deceased. PW15 SI Ravinder in State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 29 of 48 cross examination has stated that chain and FM radio are easily available in the market. PW17 has stated that the FM radio belongs to the deceased as the same has been identified by the relatives of the deceased during investigation and also it was admitted by the accused that the word Ganesh written on the radio was scratched/erased. He denied the suggestion that FM Radio has not been recovered from accused Mobin. PW4 Karan Singh who is father of deceased has not stated that the FM radio which his son had, was inscribed with word Ganesh. PW17 has stated that he cannot say if the articles mentioned in the memo are easily available in the market. The TIP of FM Radio has not been conducted. PW18 ACP Ranbir Singh in cross examination has also stated that the recovered artificial neck chain is also available in the open market. He obtained some documents from the father of deceased during the course of investigation but today he does not recollect whether in those documents the documents of ownership of the chain was there or not. He seized the FM instrument as well as chain from the spot from accused Mobin. However, as per the evidence and case of the prosecution the chain was recovered from accused Wazid and FM from accused Mobin. He admitted that these things are easily available in the open market. In view of the above discussions the recovery of chain from accused Wazid as well as FM radio from accused Mobin are doubtful.
State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 30 of 48
34. In this case one knife has also been recovered at the instance of accused Amit @ Mental. PW1 Srichand has stated that accused Amit has disclosed that he had kept the knife used in the crime in some park in New Friends colony. PW15 has also stated that Mobin was also found keeping a knife in his pant pocket again said Sumit @ Amit had got recovered later on a knife from Julena Park, NFC Area. First he has stated that accused Mobin was found keeping a knife and then he changed his stand and stated that accused Sumit @ Amit had got recovered it from Julena Park. PW15 has stated in cross examination that he does not remember whether there was light in the park or not. They went to the park after 6.30 p.m. During October darkness prevail at 6.30 p.m. PW17 SI Aishveer has stated that Amit had got recovered one knife from the corner of police booth beneath of grass. It has not been corroborated by PW15 that the knife was recovered from near police booth from beneath grass. He has further stated that they left Julena park at 8.45 p.m. PW18 ACP Ranbir has stated that he alongwith other police officials and accused persons went to New Friends Colony in Julena Park and he got recovered a knife after digging some soil in the park. From his testimony it seems that all the accused were taken to the said park while as per the cross examination of PW15 only accused Amit accompanied the police to the said park. Further PW15 & 17 has not stated that the knife was taken out after digging the soil. So, all these three witnesses have State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 31 of 48 given contradictory statements in respect of recovery of knife. PW18 is the IO of this case but he has not stated as to which particular accused got recovered the knife from Julena Park. PW18 in cross examination has stated that such type of knife is easily available in the market. The said knife has not been sent to FSL for examination of blood stains. The place of recovery of knife is a public place and there are residential houses near to the place of recovery of knife. Even as per the testimony of PW17 there is a police booth near to the place of recovery of knife and there might be busy road. The time of recovery of knife is not odd hours of night. But IO has not made any effort to join public witnesses at the time of recovery of knife. In view of the contradictory statements by the witness, none sending of knife to FSL and non joining of public witnesses, the recovery of knife from accused Amit @ Mantel seems to be doubtful. In case Law titled Sunil Rajya Kale & Anr. Vs. State of Maharashtra. 2007 CRI. L.J. 526 it is stated in headnote that:-
'Penal Code (45 of 1860), Ss.300, 394, 376 - Robbery, rape and murder - Two persons entering into house of prosecutrix at midnight - One of them committing rape on her - She disclosing said fact immediately after incident - Her husband and their guest sleeping outside their house found in injured condition - Death of husband due to injuries - Prosecutrix identifying accused as person who raped her and snatched her mangalsutra - Her evidence reliable and corroborated by medical evidence - However, fact that accused persons assaulted deceased and their guest not established - Blood found on weapon of accused not proved to be of blood group of deceased - Accused liable to State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 32 of 48 be convicted only for offence of rape and robbery and not for offence of murder'.
It is stated in case Law State Vs. Raj Kumar Khandelwal , 164(2009) D.L.T 713 (DB) that :-
'(ii) Evidence- Expert Opinion - No more than piece of evidence - Does not absolve court from primary liability to satisfy its judicial conscience by independently, with its own eyes, in light of surrounding circumstances, form its own opinion, pertaining to writing brought before court and alleged to be of a particular person'.
In case law titled State of MP Vs. Nisar, (2007) 5 S.C.C 658 it is stated in head note that:-
'Criminal trial - Circumstantial evidence - Acquittal justified - Insufficiency of evidence - High court reversing order of conviction recorded by trial court - Propriety - In a case of murder, trial court convicting the accused, giving weight to the two factors of alleged recovery of an axe and extra -judicial confession - High Court found no eyewitness to the incident and further noticed that there was no reference to the extra judicial confession in the FIR and though blood was stated to have been found on the axe recovered, blood grouping not done - Accordingly conviction set aside - Sustainability - Held, the FIR was lodged much after the alleged extra judicial confession - Hence informant's explanation that he may have forgotten to disclose this fact, is improbable and unacceptable - Also, High court rightly noticed that no disclosure was necessary for locating the dead body - Even a casual search would have revealed the dead bodies and the articles - Moreover, the axe was stained with human blood, yet the blood group was not ascertained - Hence, it was not possible to conclude that the axe was used for killing the deceased persons - Therefore, evidence was insufficient to fasten guilty'.
It is stated in case law Jahid @ Lambu Vs. State, 2009(3) JCC 1760 State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 33 of 48 it is stated in head note that :-
'Penal Code, 1860 - Sec.302 - Recovery of blood stained knife and clothes - Without there being any other circumstance, the recovery of the blood stained knife and clothes by themselves would not lead to the conclusion that the appellant is the perpetrator of the crime'.
In case law Salim Akhtar @ Mota Vs. State of U.P, 2003 Supreme Court Cases (Cri) 1149 it is stated in head note A that:-
'Terrorist and Disruptive Activities (Prevention) Act, 1987 - S.5- Recovery of a polythene bag containing a pistol, cartridges, a bomb and RDX at the instance of accused - appellant - Recovery from an open place accessible to all and everyone - Conviction u/s 5 - Propriety - Pistol alleged to have been recovered not sealed and its "number" or "make" etc. to fix its identity not mentioned in the recovery memo or FIR - No effort made by police to get any independent public witnesses at the time of alleged recovery - The only public witness (a photographer) examined was not only intimate but was also obliged to the police party - Held, Sec. 27 of Evidence Act what was admissible was the place from where the said polythene bag was allegedly recovery - The fact that some terrorist organisation had given the pistol and other articles to the appellant or its use, held, not admissible - since the recovery was made from an open place accessible to all and everyone, held, it was not possible to hold that the appellant was in possession of articles alleged to have been recovered from him - Hence conviction and sentence of appellant set aside - Evidence Act, 1872, Sec.27 - Criminal Trial - Possession of incriminating article - Recovery of incriminating articles from an open place accessible to all - Inference of possession, held doubtful'.
35. PW6 Ct. Sumit Kumar took the exhibits to FSL after taking the same from MHCM. The prosecution in this case has not examined the MHCM to establish that the case property was deposited in the malkhana and then sent to FSL. The prosecution has failed to produce register no.19 before the court. PW18 IO of this case has stated that State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 34 of 48 the CFSL result was obtained by the SHO Lajpat Nagar and the same was placed on file which is Ex.PW18/F1 to Ex.PW18/F2. I have also perused the said result. The report has been signed by Sh AK Shrivastava, Sr. Scientific Officer Biology. But said Sh AK Shrivastava has not appeared in the court to prove this result. there is no explanation on the file as to why the said Sh AK Shrivastava has not appeared. So, the FSL result has not been proved in this case as per law.
36. I have also considered the testimonies of other witnesses.
PW2 Om Prakash is the formal witness who identified the dead body of deceased. PW5 Dr. Shalini Girdhar has conducted the post mortem on the dead body of deceased Jagdish. I have also perused the PM report which is Ex.PW5/A. Following injuries are mentioned in the report
1. A stab wound of size 3 cms x 2 cms obliquely placed muscle deep on lateral aspect of right arm 15 cms from right elbow joint 18 cms from shoulder joint directed upward not through bone.
2. Stab wound of size 3 cm x 5 cms on interior part of right chest, 7 cms from midline, 122 cms from heel, 9 cms from clavicle 13 cms from mid axillary line,muscle deep obliguely placed.
3. Stab wound of size 4 x2 cm on mid of chest slightly on right side State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 35 of 48 110 cms heel, 19 cms, from mid axillary line, 11 cms from clavicle vertically placed penetrating through the sternen area of 4 cms penetrating to the parlicardial cavity through heart, left atrium to right atrium of width 3 cms in size, blood in paricardial cavity about 500 mm.
4. A stab wound of size 3x2 cms, muscle deep present on back right side 28 cms, from shoulder joint 109 cms from heel and 17 cms midline, vertically placed muscle torn.
5. A stab wound 5 cms below injury no.4 obliquely placed 3 to 2 cms penetrating through lung cavity right side, 8 intercostal phase collapsing the lower lob of right lung and the upper part of liver, haematoma present below the diaphrgm about 500 mm penetrating through the right side.
6. A stab wound of size 2 x1 cm, 21 cms from shoulder joint, 122 cms from heel, 11 cms from midline on left side.
37. PW5 has given the opinion regarding cause of death as haemorrhage shock caused by injury no.3 & 5 caused by sharp edge weapon which is sufficient to cause death in ordinary course of nature. She has also given subsequent opinion that the injuries can be possible by the alleged weapon of offence. She has also prepared the sketch of both the knives. But comparing the same with the sketch prepared by the IO, it is revealed that the measurements of both the knives are different. So, it seems that the doctor has not examined the same knives which were recovered by the IO. In cross examination she has stated that the injuries on the body could be caused by any sharp edged State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 36 of 48 weapon like Ex.P1 and P2. So, it cannot be believed that the injuries caused on the persons of deceased Jagdish, were produced by the weapons Ex.P1 and P2, examined by PW5. The doctor who conducted the post mortem is herself not sure and certain that the injuries on the person of deceased were caused by the weapons of offence examined by her. On the other hand the recovery of both Ex.P1 and P2 are doubtful and it could not be proved by leading consistent and cogent evidence. It does not connect the accused persons with the present case offence. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that:-
'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
38. PW13 Ct. Sanjay has recorded DD no.7 copy of which is Ex.PW8/A and handed over the same to PW8 HC Netrapal. HC Netrapal has stated that he reached at the spot i.e. Shambu Dayal Bagh and found a dead body in a pool of blood having stab injuries and because of jurisdiction he handed over DD to IO. In cross examination PW8 has stated that when he reached at the spot some bag type object has infact covered the face. He had not disturbed the dead body and the articles till the arrival of the crime team. He did not notice any articles near the dead body except that the bag was hanging on the shoulder. No other witness has stated that the face of dead body was covered with bag. But instead PW10 has stated that the dead body was State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 37 of 48 above that bag in oblique position. Other witnesses have stated that one newspaper and chappals were lying at the spot. But PW8 who reached at the spot first has not corroborated the version of other PWS. PW9 SI Mahesh Kumar is the formal witness who prepared the scaled site plan which is Ex.PW9/A. PW11 Ct.Heera Lal recorded DD no.11 copy of which is Ex.PW10/A and handed over the same to ASI Jagarpal who alongwith HC Baljor Singh and Ct. Mahavir reached at the spot. PW10 ASI Jagarpal has stated that he alongwith Ct.Hamid reached at the place of occurrence. PW10 did not name HC Baljor Singh and Ct. Mahavir that they accompanied him to the spot but instead he named Ct. Hamid. PW10 informed SHO PS Lajpat Nagar and ICPP Garhi. He has stated that SI Aishveer prepared the rukka and got the case registered through Ct. Mahavir. However, Ct. Mahavir has not been examined in this case. PW10 has further stated about lifting of blood stained stone, blood and blood stained earth from the spot and further stated that the dead body was having wrist watch around its wrist and a badami colour purse was found in the wearing pant of the dead body which was found to contain four visiting cards, photographs of actors, a railway pass having photograph of deceased and some currency. He has not disclosed as to how much currency was there. Even none of the witness has stated as to how much currency was found. As per seizure memo Ex.PW3/A a currency note of Rs.10/- was recovered. The newspaper was also seized from the spot vide State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 38 of 48 memo Ex.PW3/G. On perusal of the cross examination of this witness it is revealed that he did not join the investigation on any other day except 29.9.04. He has stated that he does not know whether deceased was wearing half sleeve shirt. IO had called watchman Narbahadur near the temple. IO did not record his statement. Public persons were present there but no statement of any public person was recorded. No knife was lying near the dead body on that day. He does not know when Ct. Mahavir left with rukka and when he returned back. PW12 HC Arjun is the formal witness who filled up PCR form. PW14 HC Dalip Singh is the FIR recorder and he produced FIR register. The copy of FIR is Ex.PW14/A. He has not stated that after recording of FIR he sent the copy of FIR to Ld.MM and senior police officials. Even no witness has been examined by the prosecution to establish that after recording the FIR, it was sent to Ld. MM and sr. police official. IN case Law 1979 CRI. L.J. 1159 it is stated in headnote (B) that:-
'Criminal P.C. (2 of 1974), Ss.154 and 157 - F.I.R. - Cognizable offence - Sending report to the Magistrate - Non-compliance - Bound to cast shadow on the prosecution case'.
39. PW19 SI RS Naruka is the witness from crime team and he has inspected the site and he prepared report Ex.PW19/A. He has stated that Ct. Balwant took the photographs at the spot. In cross examination he has stated that he cannot say how many photographs were taken by the crime team photographer. On perusal of the file it is State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 39 of 48 revealed that Ct. Balwant has not been examined by the prosecution in this case. The alleged photographs has been marked by IO on record. Since the witness who took the photographs has not been examined, these photographs are not proved in accordance with law. PW15 SI Ravinder Singh, PW17 SI Aishveer and PW18 ACP Ranbir are the witnesses of investigation. Most of the part of their testimonies has already been discussed in above paras. PW15 SI Ravinder Singh has stated that Shrichand disclosed to Insp. Ranbir that he had seen five boys committing crime. But this version has not been corroborated by Shrichand PW1 in his entire testimony. None of the other witness i.e. PW17 SI Aishveer or PW18 ACP Ranbir has corroborated the version of PW15 in this respect. In cross examination PW15 has stated that they reached near Iskon temple at 4 p.m while in examination in chief he has stated that they reached at 5 p.m. He has further stated that Shrichand had given the information to SI Aishveer while in examination in chief he has stated that he met with Insp. Ranbir and disclosed to him about the accused persons. They reached in the park at 5 p.m. As per testimony of PW15 accused persons were apprehended from park while as per PW1 they were apprehended from near bhandara on road. He cannot tell which police official apprehended which accused. He could not even state as to which accused was apprehended by him. He has further stated in cross examination that the place of occurrence was nearby the place of State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 40 of 48 apprehension of accused persons. PW18 ACP Ranbir Singh in cross examination has stated that he did not make any entry about patrolling duty in the area with motorcycle rider again said he made entry for patrolling. He reached at the spot at about 12 noon. The father and maternal uncle of the deceased had come to the spot as soon as he reached over there. There were six injuries on the dead body. Before receiving the copy of FIR and original rukka he had already prepared the site plan, search memo of dead body and papers of inquest proceedings. He does not know whether Srichand was involved in any case in his PS or not. He cannot say which police official apprehended which accused and which accused was apprehended first vol. they were apprehended altogether. the place from where the dead body was recovered was already in the knowledge of police. PW18 has stated in examination in chief that the accused persons pointed out the place of incident vide memo Ex.PW1/G1 to G4. But in cross examination he has stated that it was already in the knowledge of police. Since the place of incident was already in the knowledge of police, so, the pointing out memos of the place of incident has no value in the eyes of law. PW18 has further stated that the public witness Srichand met him on 20.10.04 during his course of investigation and he met him by chance near Iskon temple at about 5 p.m. From this version of PW18 it seems that PW1 Srichand who is public witness in this case was already known to PW18 prior to 20.10.04 because he met him by State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 41 of 48 chance. He did not got any information recorded in the PS which was given by Srichand. So, no DD has been got recorded by PW18 in the PS regarding proceeding to the place of arrest of accused persons. He has further stated that he reached Dayalbagh on his motorcycle and the other staff alongwith Srichand reached over there on foot. PW17 SI Aishveer has stated that they reached within 2/3 minutes of the information given by Shrichand to the place from where the accused were apprehended. It is not understandable as to how PW18 had gone on motorcycle to the place which was covered by other police officials within 2/3 minutes. He has further stated that he does not recollect regarding apprehension of each accused by the police officer. PW18 has stated that he recorded the disclosure statement of each accused which are Ex.PW1/A to Ex.PW1/D. On the basis of disclosure statement of accused Vishal and Mobin, no recovery has been effected. So, their disclosure statements are not admissible in evidence. On the basis of disclosure statement of accused Amit allegedly one knife was recovered from Julena Park and on the disclosure statement of accused Wazid allegedly one shirt was recovered from his house in village Ranjeetwa, Bharaich. As discussed above, recoveries from both the accused Amit and Wazid could not be conclusively proved by leading cogent and reliable evidence. Further, PW18 in cross examination has stated that he does not recollect from which police officer he got recorded the disclosure statement of each State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 42 of 48 accused on his dictation. It is emphatically clear from this deposition of PW18 that the above disclosure statements Ex.PW1/A to D of all the four accused persons were not recorded as per the version of accused persons and these were dictated by PW18 to his staff. Even he could not tell the name of his staff who recorded the same. So, the disclosure statements could not be proved by giving consistent statement and these disclosure statements are not admissible in evidence. PW18 has further stated in cross examination that such type of recovered knife and artificial neck chain are available in the open market. Even though no proof has been brought on record that these are of the deceased. He prepared the four sealed parcels at the place of arrest of accused persons. These pullandas were sealed by his seal and after use it was given to Srichand. PW1 Srichand has not corroborated that seal after used was given to him. However, instead it has come in evidence that seal after used was given to SI Aishveer. He has further stated that they went to Julena park at about 7 or 7.30 p.m while other Pws have stated that they reached there at about 6 p.m. He has further stated that he obtained some documents from the father of the deceased during the course of investigation but today he does not recollect whether in those documents, the documents of ownership of the chain was there or not. Father of deceased did not disclose him regarding the make of FM radio as well as neck chain. He admitted that chain and FM radio are easily available in the market.
State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 43 of 48
40. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case the motive to murder has been revealed to commit dacoity. Allegedly one chain and FM Radio has been recovered from accused Wazid and Mobin. But those could not be proved by leading cogent and reliable evidence. It has been admitted by the PWS that the deceased was having a watch in his arm and his purse was also in his pocket and it contained some currency. If the accused persons had State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 44 of 48 intention to commit robbery, they could have taken the wrist watch as well as purse of deceased. But to the contrary these things were with deceased and even his bag containing tiffin and play cards were hanging on his shoulder. In view of this I am of the view that the motive to murder in this case could not be established by the prosecution. In case law titled Pandra Khadia Vs. State of Orissa , 1992 CRI L.J 762 it is stated in headnote :-
'Evidence Act. 1872, Ss. 3,8 - Penal Code (1860), Ss.299, 300, 302 - Murder - Proof of - Case based on circumstantial evidence - Motive of accused not proved by prosecution - Held, that since important circumstantial evidence had been disbelieved absence of proof of motive would weigh in favour of accused'.
In case law Sukhram Vs. State of Maharashtra (2007) 7 S.C.C 502 it is stated in head note that :-
'Criminal Procedure Code, 1973, Ss. 464(2) (a) & 386 - conviction u/s 302 IPC by appellate court, where accused was charged only under sec. 201 IPC - Validity of - Held, was not valid when tested on touchstone of provision contained in S.464 (2) Cr.PC as appellate court (High Court) had failed to follow the procedure laid down in the said section - Even on the proven facts on record, no case for conviction u/s 302 IPC made out -
Hence, said conviction was liable to be set aside'.
'Criminal Trial - Circumstantial evidence - Motive - Significance of - Held, in a case based on circumstantial evidence motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning - Evidence Act, 1872, S.8.' State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 45 of 48
41. In nutshell the last seen is absent in this case. The motive to kill could not be established. The recoveries effected from the accused persons are full of doubts and contradictions. FSL result could not be proved by the prosecution as per Law. The measurement of knives recovered from accused Wazid and Mobin do not tally with the measurement mentioned by the doctor. The pointing out memos of the place of incident cannot be considered since the place of incident was already in the knowledge of police. On the basis of disclosure statements of accused Vishal and Mobin no recovery has been effected. Considering the evidence of PW18 as well as contradictory statements of other witnesses regarding recovery of knife from Mobin and shirt of accused Wazid, their disclosure statements are also inadmissible in evidence.
42. 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. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering 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 State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 46 of 48 be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt. There is no cogent and reliable evidence against the accused persons on file.
43. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that :-
"Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted.The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
44. In view of my above discussions, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 47 of 48 unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the guilt on the accused Wazid, Amit @ Mental, Mobin and Vishal. So, the prosecution has failed to prove its case against accused Wazid, Amit @ Mental, Mobin and Vishal. I therefore give the benefit of doubt to accused Wazid, Amit @ Mental, Mobin and Vishal and they are acquitted for the commission of offence punishable u/s 396/302/34 IPC. All the accused persons are in JC. They be released from the jail forthwith if not required in any other case. File be consigned to record room.
Announced in the open Court on 18.08.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 48 of 48 State Vs.Wazid @ Montey etc FIR no.761/04 Page No. 49 of 48