Delhi District Court
State vs Aneesh on 21 August, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)-02,
SOUTH DISTRICT, SAKET COURTS, DELHI
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-005030-2017
SC NO. 403/17
STATE V. ANEESH
FIR NO. 122/17
PS: NEB SARAI
U/S: 302/201 IPC
State
Versus
Aneesh,
s/o Sh. Sharafat Ali,
r/o 1561-B, Gali no. 5,
L-1st Sangam Vihar,
New Delhi. .... Accused
DATE OF INSTITUTION : 08.06.2016
DATE OF RESERVING JUDGMENT : 12.08.2024
DATE OF JUDGMENT/ ORDER : 21.08.2024
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Aneesh pursuant to charge sheet filed by police station Neb Sarai U/s 302/201 Indian Penal Code (hereinafter referred to as IPC) subsequent to the investigation carried out by them in FIR No. 122/17.
2. Brief facts of the case are that on 16.03.2017 an information was received by the police vide DD no. 10A regarding lying of a dead body in ganda nala wrapped in a blanket. The said DD no. 10A was handed over to HC Makhan Lal. In the meantime, another DD no. 11A was recorded vide which caller stated that at L-1st, Gali no. 7, Sangam Vihar a FIR no. 122/17 State v. Aneesh Page no. 1 of 28 murder had taken place. On this, SI Raj Kumar reached at the spot i.e. H.no. 599, Gali no. 7, Sangam Vihar, New Delhi where he met HC Makhan Lal. Thereafter, at DD no. 13A, Insp.
Kuldeep Singh reached at the spot and found something in one gunny bag wrapped with a blanket. On opening the said gunny bag they found dead body of a women aged about 30-32 years old. On checking, there was wound behind the left side ear and wound on the head of the deceased. On inquiry, it was found that the dead body was of Nargis w/o Aneesh. No witness to the incident was found at the spot. Thereafter, SI Raj Kumar left for the house of deceased and reached at H.no. 1561-B, Gali no. 05, L-1st Sangam Vihar, New Delhi where husband of deceased i.e. Aneesh was not found. SI Raj Kumar reached at the spot. Crime team was called on the spot for inspection. The dead body of deceased was sent to AIIMS Mortuary with HC Sandeep. The dead body was preserved at AIIMS hospital vide MLC no. 2275/17. On DD no. 11A, present FIR no. 122/17 was registered.
3. During the investigation, accused was arrested and the weapon of offence i.e. spade was recovered at his instance. The investigating agency seized various exhibits during the investigation and recorded statement of the witnesses. After the conclusion of the investigation carried out in the FIR no. 122/17, police filed the charge sheet against the accused Aneesh for commission of offence U/s 302/201 IPC.
4. Vide Order dated 08.06.2017 Ld. Metropolitan Magistrate concerned took cognizance of the offence u/s 302/201 IPC. The accused was called upon to face the trial. Accordingly, FIR no. 122/17 State v. Aneesh Page no. 2 of 28 he was supplied with the charge sheet and other relevant documents in compliance to section 207 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the present matter was received by way of committal to the Court of Sessions on 01.07.2017.
CHARGE
5. Vide order dated 03.10.2017, charge for the offence punishable u/s 302/201 IPC was framed by the Ld. Predecessor of this Court against the accused Aneesh who pleaded not guilty and chose to face trial.
MATERIAL EVIDENCE IN BRIEF:
6. Prosecution examined total 19 (nineteen) prosecution witnesses (hereinafter referred to as PW) in order to prove its case in the Court.
7. PW1 Sh. Qasim deposed that the deceased Nargis was his sister-in-law and besides this relation, she was daughter of his khala (mausi). PW1 further identified accused being the husband of the deceased. PW1 further deposed that deceased brought his daughter Shahista to Delhi with her at her house in Sangam Vihar about one month prior to the death of Nargis. PW1 further deposed that prior to bringing of his daughter to Delhi, there used to have quarrel between accused and deceased and earlier also a compromise had taken place between them due to the atrocities FIR no. 122/17 State v. Aneesh Page no. 3 of 28 committed by accused upon Nargis (deceased). The copy of said compromise is marked as mark PW1/A. PW1 further deposed that when his daughter was residing with deceased Nargis, he came to know through her that accused used to suspect about the character of deceased Nargis and on this account, accused used to quarrel with her almost daily.
8. PW1 further deposed that on 16.03.2017, his daughter Shahista told him through a phone call that accused had committed murder of Nargis. PW1 further deposed that his daughter Shahista told him that on the day of incident, accused put almirah on the door, and when Shahista peeped in from the jangla she saw accused, one Javed, Guddu and Chaman were present inside the room, they wrapped the dead body in a bori (sack) and brought it downstairs and thereafter accused alone took the dead body for disposing off. PW1 further deposed that his daughter Shahista also told him that prior to the murder, there was a quarrel that took place between accused and the deceased. PW1 was cross examined on behalf of accused.
9. PW2 Shahista deposed that she resided at the house of the accused for about one month in Delhi and earlier also she used to visit Delhi and stay at his house. Accused is her mausa and the deceased Nargis was her mausi. PW2 deposed that there used to be quarrel between accused and the deceased on daily basis. PW2 further deposed that she do not remember the year, but it was 16th March i.e. almost a year before in the evening the deceased, accused and his children returned home from some FIR no. 122/17 State v. Aneesh Page no. 4 of 28 mall. After having dinner, PW2, deceased and her three children went to the room upstairs. PW2 further deposed that the deceased asked her to bring a bundle of bidi and a matchbox and also asked her to take children with her to get them some eatables. PW2 further deposed that after she brought the aforesaid articles she and children stayed at ground floor as they used to sleep there with accused. PW2 further deposed that deceased used to sleep at first floor room. PW2 further deposed that on the night of 16th March, accused remained at first floor room with deceased and did not come downstairs and there was quarrel taken place between accused and the deceased through the whole night.
10. PW2 further deposed that at about 01.00 AM she heard some sound of fall and when she went towards stairs for going to first floor, the door on the stairs could not be opened despite PW2 tried and knocked the same. PW2 further deposed that she heard shriek sounds. PW2 further deposed that when the door did not open, she went to the house opposite to their house and from the staircase of that house, she saw from the jaal of the room of the deceased that one person was holding one leg of the deceased and the other person was holding her hand and twisting towards the back while the deceased was shouting for letting her off. PW2 further deposed that two more persons in the room were placing safe/almirah towards the door. PW2 further deposed that she could saw that deceased was being hit with something and thereafter she was dragged by the said persons out of which accused was one. PW2 further deposed that accused was also hitting deceased and when she was shouting for help, another associate of accused gagged the mouth of the deceased.
FIR no. 122/17 State v. Aneesh Page no. 5 of 28
11. PW2 further deposed that after seeing the incident, she became afraid and came downstairs and bolted her room from inside and fell asleep. PW2 further deposed that in the morning police came and it was told that deceased Nargis has been murdered. PW2 further deposed that she was asked by the police to identify her and she went with them to the place where people used to throw garbage and at the distance of 2-3 minutes walk, a dead body was lying which she identified as that of Nargis. PW2 further deposed that the dead body was wrapped in blanket which Nargis used to have while sleeping. PW2 identified the blanket as Ex.P1 and the other articles as Ex. P2. PW2 was cross examined on behalf of accused.
12. PW3 Sh. Mohd. Hanif deposed that there was CCTV camera installed at his house. Police seized DVR from his house vide seizure memo Ex. PW3/A. PW3 identified and exhibited on record the DVR model no. TT7708, 8CH, digital video recorder bearing serial no. 429201504280168 RoHS as Ex. PW3/P1 which was taken by police official. PW3 was cross examined on behalf of accused.
13. PW4 Sh. Chaman Ali identified the dead body of deceased vide statement Ex. PW4/A. PW4 also signed on the application of IO for the postmortem which is Ex. PW4/B. PW4 further exhibited on record the memo vide which the dead body of deceased was handed over to Javed, the brother of deceased as Ex. PW4/C. PW4 further deposed that the accused was invited to his son's birthday party on 15.03.2017 and he reached there at FIR no. 122/17 State v. Aneesh Page no. 6 of 28 10-10.30 PM after his children went asleep. PW4 further deposed that since after dinner it was already late the accused slept in his house and in the morning he went back where his wife was not found and police arrested him. As this witness deposed contrary to the case of prosecution, he was cross examined by the Ld. Additional PP for the state, with the permission of the court. PW4 was not cross examined on behalf of accused.
14. PW5 Dr. Rajesh Kumar exhibited on record the post mortem report as Ex. PW5/A vide which the cause of death of the deceased was due to shock due to craneo cerebral injury caused by blunt external force impact. PW5 was not cross examined on behalf of accused.
15. PW6 Ms. Mumtrin deposed that accused was her brother-in-law and was residing with her sister and three children at gali no. 5, Sangam Vihar, Delhi. PW6 further deposed that accused used to quarrel with her sister after marriage and accused had suspicion on the character of her sister (deceased). PW6 further deposed that on the date of incident, there was some fighting between accused and deceased, the said fact came to known by PW6 from the children of her sister. PW6 further deposed that the children had informed her that her sister was beaten by accused on previous night. PW6 further deposed that her niece Shahista informed her that her sister was murdered by accused. PW6 further deposed she along with police reached at drain where dead body of her sister was lying. PW6 identified accused before the court during trial. PW6 was cross examined FIR no. 122/17 State v. Aneesh Page no. 7 of 28 on behalf of accused.
16. PW7 Sh. Javed Ali was the brother of deceased who identified the dead body of deceased vide memo Ex. PW7/A. PW7 was not cross examined on behalf of accused.
17. PW8 HC Pradeep deposed that on 16.03.2017 after receiving information, he along with mobile team Incharge SI Ajay and one proficient went to the spot in front of H.no. 599, Gali no. 07, L-1st, Sangam Vihar, New Delhi where one dead body was lying. PW8 further deposed that on the instruction of IO/SI Raj Kumar he clicked photographs of the place of incident. Thereafter, they reached at 1561-B, IInd floor, Gali no. 5, L-1st Sangam Vihar and clicked photographs from there as Ex. PW8/P6 to P14. PW8 further deposed that the photographs were clicked from the front of H.no. 599, Gali no. 7, L-1st Sangam Vihar are Ex. PW8/P1 to P5, negatives are Ex.PW8/P15 (Colly).
18. PW10 Md. Aarif deposed that he made a PCR call at 100 number after seeing blanket in ganda nala on 16.03.2017 outside his house. PW10 was not cross examined on behalf of accused.
19. PW13 HC Makhan Lal deposed that on 16.03.2017 at about 07.45 AM, DD no. 10A Ex. PW13/A was received. PW13 reached at H.no. 599, Gali no. 07, Sangam Vihar, New Delhi where SI Raj Kumar and HC Satyanarayan were already there and SI Raj Kumar opened the said blanket and found khaki FIR no. 122/17 State v. Aneesh Page no. 8 of 28 colour sack. On opening the said sack, a dead body of a lady aged about 30-32 years was found. PW13 further deposed that the sack and blanket contained blood stains and there was a wound on her left side ear and head. PW13 further deposed that the lady was wearing dark blue colour bra and pink colour leggings. On inquiry, they came to know that the name of the lady as Nargis i.e. wife of the accused. PW13 further deposed that SI Raj Kumar prepared tehrir and he got the FIR registered. PW13 was not cross examined on behalf of accused.
20. PW14 Dr. Abhishek Kumar Tiwari exhibited on record the MLC no. 2275/17 dated 16.03.2017 of deceased Nargis as Ex. PW14/1. PW14 was not cross examined on behalf of accused.
21. PW15 SI Ajay deposed that he was the Incharge of Mobile Crime Team, South District. He along with ASI Jaswant i.e. finger print proficient and Ct. Pradeep i.e. photographer visited the spot. PW15 deposed on the same lines as that of PW8 HC Pradeep. PW15 exhibited on record the detailed scene of crime report as Ex. PW15/A. PW8 and PW15 was cross examined on behalf of accused.
22. PW18 SI Raj Kumar deposed more or less on the same lines as that of PW13 HC Makhan Lal. PW18 also relied upon the documents exhibited on record by PW3 and PW17. In addition to that, PW18 exhibited the documents prepared by him during the investigation that is, tehrir as Ex. PW18/1, site plan FIR no. 122/17 State v. Aneesh Page no. 9 of 28 from where the dead body was found and place of occurrence as Ex. PW18/2 and Ex. PW18/3, seizure memo of blood stained three blankets, one tehmad wherein dead body was wrapped and one gunny bag vide seizure memo Ex. PW18/4, seizure memo of blood stained earth control and blood sample in front of H.no. 599, Gali no. 7 as Ex. PW18/5, seizure memo of blood gauze cloth piece from H.no. 599, one blood gauze piece from the stairs of H.no. 599 and two gauze cloth piece in front of H.no. 599 and were given mark as Ex. A, B and C respectively and same were taken into possession vide seizure memo Ex. PW18/6.
23. PW18 further deposed that IO also seized one blood gauze cloth piece from the first floor room of house of deceased i.e. 1561B, Gali no. 5 and another blood gauze cloth piece from the wall of first floor of H.no. 1561B vide seizure memo Ex. PW18/7. PW18 further deposed that IO Insp. Kuldeep Singh examined witness Shahista and at her instance arrested and personally searched the accused vide memos Ex. PW18/8 and Ex. PW18/9 respectively. PW18 further deposed that IO recorded the disclosure statement of accused as Ex. PW18/10. PW18 further deposed that accused got effected the recovery of weapon of offence i.e. spade near the water tank from roof which was found blood stained which was also inspected by RFSL team and taken into possession vide seizure memo Ex. PW18/11. PW18 further deposed that accused got effected the recovery of the wearing clothes of accused at the time of incident that were seized vide seizure memo Ex. PW18/12.
FIR no. 122/17 State v. Aneesh Page no. 10 of 28
24. PW18 further deposed that after post mortem examination concerned doctor handed over him the exhibits of deceased in sealed condition along with sample seal and same was handed over to IO Insp. Kuldeep vide seizure memo Ex. PW18/13. PW18 identified accused before the court during trial and also identified the photographs as Ex. PW8/P1 to P-14, photographs from CCTV footage wherein accused is visible while carrying the dead body in gunny bag as Ex. P15 (Colly), spade Ex. PX1, DVR as Ex. PX2 and pen drive as Ex. PX3. PW18 was cross examined on behalf of accused
25. PW19 Insp. Kuldeep Singh deposed qua the manner and his involvement in the investigation being the Investigating Officer of the present case. PW19 deposed more or less on the same lines as that of PW13 HC Makhan Lal and PW18 SI Raj Kumar. PW19 relied upon the documents exhibited on record by PW18. In addition to that PW19 exhibited on record the DD no. 13A as Ex. PW19/1, death report as Ex. PW19/2, certified copies of PCR forms as Ex. PW19/3. PW19 identified accused before the court during trial and also identified the case property already exhibited on record in the testimony of PW18. PW19 was cross examined on behalf of accused.
26. PW9 Mukesh Kumar Jain, PW9 SI Ummed Singh, PW11 ASI Shyam Kaur, PW12 HC Harender Yadav, PW16 HC Ajay Kumar and PW17 Retd. ASI Surender Singh were the formal police witnesses who exhibited on record various documents i.e. scaled site plans Ex. PW9/A, Ex. PW9/B, PCR FIR no. 122/17 State v. Aneesh Page no. 11 of 28 form as Ex. PW9/A, computerized FIR as Ex. PW11/A, endorsement on rukka as Ex.PW11/C and certificate u/s 65B of Indian Evidence Act as Ex.PW11/B, DD no. 11A as Ex. PW17/A in their deposition. All the witnesses were cross examined on behalf of accused except PW1 and PW10.
27. During trial accused admitted the genuineness of preparation of document u/s 294 Cr.P.C. i.e. statement of HC Sandeep as Ex. PX-1, FSL report bearing no. CFSL-2017/B-0522 dated 01.01.2018 by Dr. B.K. Mohapatra as Ex. PX-2 and statement of Ms. Saila Hussain u/s 161 Cr.P.C. as Ex. PX-3.
28. No other PW was left to be examined, hence PE was closed vide order dated 25.04.2024.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
29. Statement of accused recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to him. The accused controverted and denied the allegations levelled against him. It is stated by accused the he on the night of incident, was present at the house of his brother Chaman for attending the birthday ceremony of his son namely Shoib Ali. He was not present in his house at the night of the incident. The IO has introduced PW Shahista as eye witness falsely when police could not find actual eye witness and could not trace the actual culprit. Accused further stated that he had never removed the dead body of the deceased in the bori / gunny bag as alleged by the police against him. It is further stated that FIR no. 122/17 State v. Aneesh Page no. 12 of 28 he was not visible in the CCTV footage and the police official has identified him in the CCTV footage wrongly and the said CCTV footage is false and fabricated. He has not committed the murder of deceased Nargis and whole allegations levelled against him are false and fabricated nor he has got recovered any weapon of offence or clothes as alleged. Accused opted not to lead any defence evidence.
ARGUMENTS:
30. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony have remained unrebutted. The weapon of offence has also been recovered at the instance of the accused. Forensic evidence also corroborated and supported the case of prosecution that connects the culpability of the accused. It is further argued that the entire chain of circumstances have been established that proves the guilt of the accused. That on a combined reading of testimony of prosecution witnesses, offences U/s 302/201 IPC are proved against the accused beyond reasonable doubt.
31. On the other hand, Ld. Counsel for accused has argued that there is no legally sustainable evidence against the accused. It is further argued that the testimony of star witness is not trustworthy as material discrepancies and improvement have occurred in her testimony which rendered her testimony unreliable. It is further argued that the accused has been falsely implicated in this case and the weapon of offence is also planted FIR no. 122/17 State v. Aneesh Page no. 13 of 28 upon him as no such recovery has been effected at the instance of accused. It is further argued that CCTV footage has not been proved in accordance with law. Accused has placed reliance upon Shafi Mohammad v. The State of Himachal Pradesh, SLP Leave Petition (CRL.) no. 2302 of 2017 and Naresh @ Nehru v. The State of Haryana, Criminal Appeal no. 1786 of 2023. It is further submitted that the prosecution has failed to prove its case beyond reasonable doubt, thus, on the aforesaid grounds accused deserves to be acquitted.
FINDINGS:
32. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
33. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused has been indicted for the offences u/s 302/201 IPC. Section 302 IPC provides punishment for committing the offence of murder with death or imprisonment for life, and shall also be liable to fine.
34. Section 300 IPC reads as under:
Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- (Secondly)--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- (Thirdly)--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in-
FIR no. 122/17 State v. Aneesh Page no. 14 of 28 flicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
35. Section 201 IPC provides for punishment to a person who knowingly that an offence has been committed, causes any evidence of such commission of offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false.
36. Now coming to the evidence lead on record by the prosecution. The case of prosecution is based upon direct evidence as well as circumstantial evidence. Prosecution has heavily relied upon the testimony of star witness i.e. PW2 Shahista. As per the prosecution, this witness has herself witnessed the incident of assault by the accused on the fateful night of 15/16.03.2017. After going through the testimony of PW2, it is found that there are numerous contradictions and material improvements in her deposition that have appeared during her cross examination which renders her deposition highly unreliable and cannot be given due credence.
36.1 PW2 in her examination in chief named the accused as well as three other persons as the assailants whom she claimed to have seen while they were assaulting the victim on the intervening night of 15/16.03.2017. PW2 was confronted with her previous statement i.e. Ex. PW2/DA where the name of other FIR no. 122/17 State v. Aneesh Page no. 15 of 28 persons are not mentioned as assailants and she admitted herself of not naming them in her previous statement given to the police during her cross examination recorded before the court. In fact, in the previous statement Ex. PW2/DA this witness has not even named the accused as the assailant nor she has anywhere stated in the previous statement to have witnessed the happening of the incident. On the contrary, prosecution has examined two out of the said three persons namely Javed and Chaman as the prosecution witnesses which further contradicts the version of PW2.
36.2 Further, PW2 was confronted with her previous statement where the fact that victim asked her to bring 'biddi ka bundle and match box and some eatables for children' is not found recorded and is contrary to the stating of the aforesaid fact in her examination in chief recorded before the court. Another discrepancy in her testimony is that at one place she refer to the presence of three children of accused at house on 15.03.2016 whereas in cross examination she stated that one of the child was in village at that time.
36.3 Further, PW2 in her examination in chief stated to have seen the incident through jaal which she explained in her cross examination that she went to the stairs of the house of the neighbourer from where she had seen the incident whereas no such fact has been stated by PW2 in her previous statement Ex. PW2/DA. Even during her cross examination, PW2 has admitted to have not stated the aforesaid fact to the police. Further, there is also discrepancy qua the location of house of neighbourer as stated by PW2. At one place in her examination in chief she stated that house of neighbourer was opposite to the house of FIR no. 122/17 State v. Aneesh Page no. 16 of 28 accused where as in her cross examination she stated that the staircase of accused and staircase of neighbourer are adjoining which is not possible as per the explanation given by PW2 and it creates doubt in the version of PW2.
36.4 PW2 in her examination in chief stated that she saw two persons dragging the almirah towards the door and one person was holding the leg and other was twisting the hand of the victim. She has further stated in her examination in chief that victim was hit and dragged and her mouth was gagged when she tried to shout but during her cross examination PW2 stated to have not told the aforesaid facts to the police. The aforesaid facts are not mentioned in her previous statement Ex. PW2/DA which is a major improvement in the version of PW2.
36.5 Further, PW2 in her examination in chief stated that she was awake when she heard that quarrel was going on between the accused and the victim and when at about 01.00 AM, the quarrel did not stop she heard some sound of fall. The aforesaid statement of PW2 reveals that she did not went to sleep during the happening of incident and she claimed to have tried to go upstairs as to see what was happening and when the door of the stair case was found locked she went to the stair case of the neighbourer from where through the jaal she saw the incident happened. Now on the contrary of the aforesaid fact she stated in her previous statement Ex. PW2/DA that she slept and at around 12-1.00 AM the sound of quarreling came from the room at first floor and she knocked the door of the room but nobody opened the same so she again went back to sleep. The aforesaid narration of sequence of events is also in complete contradiction in the statement of PW2 made at two different stages.
FIR no. 122/17 State v. Aneesh Page no. 17 of 28
37. It is pertinent to note that the presence of PW2 in the house of the accused at the relevant point of time also seems to be doubtful as PW18 SI Raj Kumar in his examination in chief stated that when he reached at the house of deceased i.e. H.no. 1561-B in a room situated at ground floor only two children namely Arshi and Mohsin aged about 5-6 years respectively were found and nowhere PW18 stated to have met PW2 Shahista in the house which contradicts the statement of PW2 whereby she claimed that police persons came at her house and awoke her. PW2 has claimed that she accompanied police officials to the spot where dead body was lying and identified the same but none of the police witness has corroborated this fact in their deposition recorded before the court. Further, PW2 during her cross examination stated that she has not told about the incident to anybody in the neighbourhood after she has seen the incident. It is very surprising to know that the child around the age of 9-10 years after seeing such horrible incident with her eyes did not raise any alarm or called for help and that too when she claimed to have climbed the stair case of the neighbourer to see what was happening in the room of the victim. So it was naturally expected that she could have sought help from the neighbour but it is not so. On the contrary, she went back to her room and slept. Further, admittedly, her statement was recorded in the afternoon when her parents reached the place of incident and her statement Ex. PW2/DA was recorded which is in complete contradiction to her testimony recorded in the court. So in view of the discrepancies and improvements discussed above, the possibility of PW2 being tutored cannot be ruled out. Hence, the testimony of PW2 cannot be given due credence, thus cannot be relied upon.
FIR no. 122/17 State v. Aneesh Page no. 18 of 28
38. The aforesaid contradictions and the material improvements as discussed above appearing in the testimony of PW2 completely demolishes her testimony and shakes its veracity. The court is compelled to draw adverse inference against the witness PW2, thus, her deposition is discarded.
39. Prosecution has also examined two other public witnesses to substantiate its case i.e. PW1 Qasim and PW6 Mumtrin. Now coming to the testimony of the aforesaid witnesses one by one.
40. First and foremost, the entire deposition of the aforesaid witnesses about the incident has been based upon the knowledge gathered by them from PW2 Shahista. During cross examination also both the witnesses admitted that they came to have the knowledge of the incident from PW2, hence, their testimony falls in the realm of hearsay that cannot be relied upon. Admittedly, none of the aforesaid witness has personally witnessed the incident.
41. PW1 has stated in his examination in chief that the accused used to suspect over the victim regarding her character and used to quarrel with her almost daily. Even this fact has come to the knowledge of PW1 through PW2 Shahista as stated by him in his examination in chief, therefore, this aspect of motive as to why the accused has killed his wife is based upon his knowledge from the third person thus, it also falls in the realm of hearsay that cannot be relied upon. Further, PW1 FIR no. 122/17 State v. Aneesh Page no. 19 of 28 claimed that his daughter Shahista told him the name of accused Aneesh, Javed, Guddu and Chaman who were present in the room where incident happened but during his cross examination PW1 admitted that he has not told the name of Javed, Guddu and Chaman in his statement given to the police which makes the aforesaid statement as material improvement in his testimony. The hearsay and tainted deposition of PW1 is of no help to the case of prosecution.
42. PW6 Mumtrin also deposed on the same lines of PW1 and her deposition is also on the basis of the knowledge gathered from Shahista therefore her testimony also falls in the realm of hearsay. During her cross examination, PW6 was confronted with her previous statement Ex. PW6/DA where all the material facts that were stated by PW6 in her examination in chief were not found recorded in her previous statement. PW6 stated in her examination in chief that accused used to quarrel with victim after marriage and he had suspicion on the character of the victim. PW6 further stated that on the night of incident there was some fighting that took place between the accused and the victim. She further stated that her niece Shahista informed her that the victim was murdered by the accused. All the aforesaid statements made by PW6 were not found stated in her previous statement Ex. PW6/DA. Thus, hearsay testimony of PW6 also fail to support the case of the prosecution in any manner.
43. Now coming to the aspect of recovery of the weapon of offence. As per the prosecution, the accused got effected FIR no. 122/17 State v. Aneesh Page no. 20 of 28 recovery of weapon of offence i.e. spade (fawda) as Ex. PX1 seized vide seizure memo Ex. PW18/11 from the roof of his house. The recovery is shown to have been effected from the roof of the house of the accused. It is the contention raised by the Ld. Defence Counsel that the weapon of offence was lying in open on the roof whereby the roofs of the adjacent houses were connected so it is not that the recovery was effected on the personal knowledge of the accused and the intervention of third person can be possible. Further no public witness has been joined at the time of recovery proceedings nor the FSL result has corroborated the story of the prosecution. Ld. Defence counsel strongly agitated his argument and claimed the recovery to be planted.
44. This court finds substance in the argument put forth by the Ld. Defence counsel. First and foremost, no independent public person has joined the recovery proceedings nor the seizure memo bears the signatures of any independent public person despite their availability. PW18 during his cross examination stated that IO did not make any public person as a witness at the time of recovery of alleged spade. PW19 IO Insp. Kuldeep Singh also admitted during his cross examination that no public witness was joined at the time of seizure of the exhibits either from the place of recovery of the dead body or from the house of the deceased. Meaning thereby no sincere efforts were made by the police officials for joining the independent public person at the time of recovery proceedings. In absence of joining of any public witness to the recovery proceedings, the recovery of knife at the instance of the accused witnessed by police witness cannot be FIR no. 122/17 State v. Aneesh Page no. 21 of 28 said to be proved beyond reasonable doubt. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) wherein it has been held that :
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
45. Hence, in view of discussion above the recovery of the weapon at the instance of accused cannot be said to be proved beyond reasonable doubt. It is also pertinent to note that FSL report Ex. PX2 reveals that the exhibit no. 10 spade (fawda) had detected blood but it does not give any reaction to ascertain the blood group. DNA could not be generated from the same to match with the blood group of the victim. It is also relevant to note that IO has seized blood in gauge from the house of accused vide seizure memo Ex. PW18/7. Neither such seizure is witnessed by any independent public witness nor the blood detected on the same when sent to FSL for examination could yield DNA for analysis. No reaction was found to ascertain the blood group to match it with blood group of deceased. Hence, the FIR no. 122/17 State v. Aneesh Page no. 22 of 28 FSL result did not corroborate the story of the prosecution attributing the culpability upon the accused.
46. Another important piece of evidence relied upon by the prosecution is the CCTV footage that shows the accused carrying the body of the deceased in a sack and dropping the same at a place from where the dead body was recovered in the next morning. PW3 Mohd. Hanif, PW18 SI Raj Kumar and PW19 Insp. Kuldeep Singh are the three witnesses examined by the prosecution in this regard.
47. PW3 Mohd. Hanif is the person in whose house the CCTV camera was installed and the police collected and seized the DVR Ex. PW3/P1 vide seizure memo Ex. PW3/A. This witness has identified the DVR in the court during his deposition but during his cross examination he stated that the police officials did not play any CCTV footage through the DVR nor did they ask him to play the footage of DVR. It is clear from the testimony of PW3 that he had not seen the CCTV footage in the DVR nor the DVR was played in the court during his testimony to ascertain the existence of CCTV footage relied upon by the prosecution.
48. PW18 SI Raj Kumar is another witness to the recovery of DVR vide seizure memo Ex. PW3/A. This witness also exhibited on record the photographs taken from the CCTV footage showing the accused carrying the dead body in a gunny bag as Ex. P15 (colly). PW18 also exhibited on record the pen FIR no. 122/17 State v. Aneesh Page no. 23 of 28 drive containing CCTV footage as Ex. PX3 and the same was played in the court whereby PW18 identified the accused leaving the gunny bag having dead body in it at the place of recovery of dead body. Ld. Defence counsel raised an argument that the DVR has not been played in the court to ascertain the CCTV footage and also that there is no report from the forensic department to the effect affirming untempered and unaltered DVR. It is also pointed out that no certificate u/s 65B of Indian Evidence Act has been adduced in evidence so the pen drive being secondary evidence cannot be said to be proved in accordance to law. Hence, the electronic evidence cannot be read in evidence.
49. It is not disputed that no certificate u/s 65 B of The Indian Evidence Act has been adduced in evidence by any of the prosecution witness to prove the CCTV footage contained in the pen drive Ex. PX3. It is also not disputed that no FSL report pertaining to the genuineness of the CCTV footage has been lead in evidence by the prosecution. PW19 Insp. Kuldeep Singh during his cross examination admitted that no opinion was sought by him regarding the tempering of DVR from CFSL. The prosecution was required to prove the genuineness and authenticity of the DVR by way of forensic examination but the same is admittedly not done in this case.
50. It is also relevant to note that the primary source of electronic evidence i.e. DVR Ex. PW3/P1 has not been played in the court and none of the prosecution witness has identified the FIR no. 122/17 State v. Aneesh Page no. 24 of 28 CCTV footage in the said DVR. It is also admitted by PW19 Insp. Kuldeep Singh during his cross examination that the FSL department could not transfer or store the data in separate CD or pen drive from the DVR. Meaning thereby, the data from the DVR could not be retrieved by the FSL. In nutshell, the discussion above shows that the CCTV footage and the photographs taken from the CCTV footage has not been proved in accordance to the provisions of law. When the accused disputed the genuineness of CCTV footage and the DVR itself, the prosecution was supposed to get the forensic examination of the electronic evidence to rule out any tampering or manipulation in CCTV footage but it is not done so in this case leaving a strong doubt in the genuineness of the CCTV footage. Ld. Defence counsel has referred to the judgments passed by Hon'ble Supreme Court of India in case titled as Shafi Mohammad v. The State of Himachal Pradesh, SLP Leave Petition (CRL.) no. 2302 of 2017 and Naresh @ Nehru v. The State of Haryana, Criminal Appeal no. 1786 of 2023. Both the judgments referred above directly applies to the situation in hand. Therefore, the electronic evidence with respect to the CCTV footage lead in this case cannot be relied upon.
51. Ld. Defence Counsel has raised the contention that the accused was not even present at his house on the day of incident as he has gone to attend a birthday party of the son of his brother and slept over in the house of his brother. Ld. Counsel referred to the testimony of PW4 Chaman Ali in this regard. As far as the plea of alibi is concerned, this court is of the view that the same could not be established on record from the testimony of PW4 FIR no. 122/17 State v. Aneesh Page no. 25 of 28 Chaman Ali as material discrepancies and infirmities appeared in his deposition during his cross examination.
51.1 Firstly, PW4 has not stated about the fact of accused being invited to his son's birthday party and over night stay of the accused at his place in his previous statement recorded u/s 161 Cr.P.C. which makes the deposition of PW4 as material improvement that cannot be relied upon.
51.2 Secondly, during his cross examination PW4 could not tell the date, month and year of the birth of his other three children except his child Shoib Ali whose birthday is claimed to be on 15.03.2009. It is very unusual and surprising to believe that PW4 who remembers the birth date details of one of his child and could not tell the details about his other children which apparently shows that he has introduced the birth date of his child Shoib Ali as 15.03.2017 with a purpose. Moreso, no birth certificate of Shoib Ali is filed on record in the evidence of PW4 to show that it was the birthday of Shoib Ali on 15.03.2017.
51.3 Thirdly, during his cross examination PW4 has stated that the wives and the children of his brothers did not attend the birthday party. It is also unbelievable that the birthday party of a child is attended by the adult members and none of the children were invited and joined the celebration which is contrary to the normal scenarios where children participate in the birthday parties celebrated by a child. Thus, in view of the discrepancies above the testimony of PW4 does not inspire confidence of the court, hence, cannot be relied upon.
FIR no. 122/17 State v. Aneesh Page no. 26 of 28
52. The testimony of star witness PW2 is found to be blemished thus cannot be relied upon. As far as circumstantial evidence is concerned the complete chain of incriminating circumstances could not established on record by any cogent evidence lead by the prosecution.
53. It is settled position of law 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 view which is favourable to the accused should be adopted. In the instant case, the important circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. The inconsistencies occurring in the testimony of prosecution witnesses creates strong doubt in the case of the prosecution. The chain of circumstances has been snapped and that rule out the hypothesis of guilt of the accused in the given circumstances and the evidence led on record.
54. In Sujit Biswas v. State of Assam, (2013) 12 SCC 406, it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture.
55. In light of aforesaid circumstances, this court has no hesitation in holding that the circumstances relied upon the prosecution have not been fully established and they are not conclusive in nature. It is not a case where the only hypothesis of FIR no. 122/17 State v. Aneesh Page no. 27 of 28 guilt of accused can be inferred from the facts brought on record. The prosecution has failed to elevate its case from the realm of "may be true" to "must be true" as indispensably required in law for conviction on basis of circumstantial evidences on a criminal charge. The prosecution from the quality and quantity of the evidence could not prove the chain of circumstantial evidence which could only lead to one inference i.e. the guilt of accused.
56. In view of the discussion above, the accused is entitled to be given benefit of doubt. Accordingly, accused Aneesh is hereby acquitted of all the charges levelled against him in the present case.
Digitally signed by VISHAL VISHAL PAHUJA
Date:
PAHUJA 2024.08.21
16:17:27
+0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 21.08.2024 ASJ (FTC) -02
SOUTH DISTRICT
SAKET COURTS
Containing 28 pages all signed by the presiding officer.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2024.08.21 16:17:35 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR no. 122/17 State v. Aneesh Page no. 28 of 28