Delhi District Court
State vs . 1. Santosh S/O Shankar Kori, on 24 August, 2011
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGEV: ROHINI COURTS: DELHI
SC No.370/09
ID No.02404R6285042004
FIR No.378/04
PS Narela
U/s 302/34 IPC
State Vs. 1. Santosh S/o Shankar Kori,
R/o H.No. 463, Pocket7,
SectorA10, Narela.
2. Raju @ Chhanga S/o Sh. Suner Dev,
R/o H.No. 329, Pocket4, Sector A6,
Narela, Delhi.
3. Sunil @ Chhotu S/o Sh. Radhey Shyam,
R/o H.No. 298, Pocket4, Sector A6,
Narela, Delhi.
Date of Institution in Session Court : 02.12.2004
Date of Institution in this Court : 31.08.2009
Date of Judgment : 24.08.2011
State Vs. Santosh etc. PS Narela FIR No.378/04
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JUDGEMENT:
1. In brief the prosecution story is that on 08.09.2004, on receipt of DD No.40A, which was received at around 6:45 a.m from one Sant Ram, STD Booth owner from Sector10A, Narela, Punarwas Colony, that one person by the name of Ram, resident of their colony had been murdered. SI Ram Chander along with Ct. Suresh left for the spot and reached H.No. 348, Pocket7, SectorA10, Narela, where one Ram Prasad was lying in dead condition.
2. The blood was also oozing out from his mouth and ears and the dead body was lying in the courtyard of the said house. The house was locked, the keys were also lying near the deceased. The dead body was inspected and rukka was written by SI Ram Chander and on the basis of the rukka, an FIR U/s 302 IPC was registered at PS Narela through Ct. Suresh.
State Vs. Santosh etc. PS Narela FIR No.378/04 3
3. After the registration of the FIR, investigation(s) were handed over to Inspector Mahipal Singh, who prepared the site plan of the spot. Crime team was also called to the spot, which took the photographs of the spot. The dead body was shifted to the mortuary of BJRM hospital for postmortem. After identification of the dead body and after postmortem the same was handed over to the relatives of the deceased.
4. Thereafter, accused Santosh, Raju @ Chhanga, Sunil @ Chhotu were arrested in the present case. Their disclosure statements were also recorded.
5. Accused Santosh pursuant to his disclosure statement got recovered the Icard from the purse belonging to the deceased from his house, similarly accused Raju @ Chhanga got recovered one silver ring belonging to the deceased from his house. The said State Vs. Santosh etc. PS Narela FIR No.378/04 4 articles were seized separately by the I.O.
6. Thereafter, the I.O also got prepared the scaled site plan of the spot, the opinion regarding the cause of death was obtained, which was due to the craniocerebal damage, which was sufficient to cause death in ordinary course of nature. All the injuries were opined to be antemortem in nature and caused by hard/blunt force object. The involvement of more than one person could not be ruled out.
7. The relevant exhibits were sent to FSL Rohini for forensic evaluation.
8. After completion of investigation(s), a charge sheet U/s 302/34 IPC was filed in the court.
9. Upon committal of the case to the court of Sessions, a charge U/s 302/34 IPC was framed against all the accused persons, to which they pleaded not guilty and claimed trial.
State Vs. Santosh etc. PS Narela FIR No.378/04 5
10. Thereafter, the prosecution in support of its case has examined 14 witnesses. PW1 is Manju, neighbour of the deceased, who has turned hostile, PW2 is Raj Mani, another neighbour of the deceased, who has also turned hostile, PW3 is HC Saira Bano, duty officer, who has proved the copy of the FIR, Ex.PW3/A and rukka Ex.PW3/B, PW4 is Ct. Chhuni Lal, the photographer of the crime team, who has proved the photographs, Ex.PW4/B1 to B4 and negatives collectively Ex.PW4/A, PW5 is Inspector Satya Prakash, then Incharge Crime Team, who has proved his scene of crime report, Ex.PW5/A, PW6 is Ct. Suresh, who had accompanied SI Ram Chander to the spot on 08.09.2004 on receipt of DD No.40A and took some part in the investigation(s), PW7 is Dr. K. Goel, who has proved the postmortem report, prepared by Dr. Anil Shandil in his absence by way of secondary evidence, which is Ex.PW7/A, PW8 is Ct. Pawan Kumar, State Vs. Santosh etc. PS Narela FIR No.378/04 6 who was special messenger, who delivered the copies of the FIR to senior officers on 08.09.2004, including Ld. MM, PW9 is Ct. Nar Singh, who had deposited the sealed pullandas of the present case with the FSL Rohini on 15.10.2004, PW10 is SI Ramesh Chander, the initial I.O of the case, who has deposed regarding the investigation(s), as were carried out by him during the course of the present case, he was also the recovery witness, PW11 is Sohan Pal, son of the deceased and the star witness of the prosecution and the witness of the last seen i.e he had lastly seen the deceased alive in the company of the accused persons at temple of his locality on the day of Janmashtmi, PW12 is HC Satish Kumar, another recovery witness, PW13 is HC Satpal, who was MHC(M) during the relevant time, who has proved the relevant entries in the register No.19, PW14 is I.O Inspector Mahipal Singh, who has deposed regarding the State Vs. Santosh etc. PS Narela FIR No.378/04 7 investigation(s), as were carried out by him during the course of the present case.
11. Thereafter, separate statements of all the accused persons U/s 313 Cr. PC were recorded, in which the defence of all the accused persons was that they were not present in the mandir along with the deceased Ram Prasad on the date of the incident and further nothing was recovered from them or at their instance. However, they chose not to lead any evidence in their defence.
12. I have heard Ld. Amicus Ms. Sadhna Bhatia on behalf of the accused persons and Sh. A.K. Srivastava, Ld. Addl. PP for the state and perused the record.
13. The Ld. Amicus has argued that in the present case, two material witnesses of the prosecution, namely, PW1 Manju and PW2 Raj Mani had turned hostile and had not supported the prosecution State Vs. Santosh etc. PS Narela FIR No.378/04 8 version, that they had lastly seen the accused persons in the house of the deceased, giving beatings to him or that they had seen accused persons leaving with the deceased from the temple on the day of Janmashtmi.
14. She has further argued that the testimony of PW11 Sohan Parshad does not inspire confidence, as he had been introduced by the I.O to strengthen the case of the prosecution, though he had never visited the house of his father on the date of the incident, as no witness from the neighbourhood has deposed that he was present at the house of his father prior to his death, nor any witness from the place where he was residing has also been examined by the prosecution, who could say that PW11 had told him that he was leaving for the house of his father on the day of Janmashtmi on 08.09.2004. She has further argued that even if the testimony of State Vs. Santosh etc. PS Narela FIR No.378/04 9 PW11 is taken as correct, even then the same does not prove anything against the accused persons, as admittedly the mandir was a public place, where the accused persons were only found talking with the deceased and dancing, and they were admittedly number of other public persons, who were also present in the said mandir and it was not that the accused persons were the only persons, who were in the exclusive company of the deceased. Further, no prosecution witness has deposed that they had seen accused persons leaving the mandir in the company of the deceased or that they had seen accused persons entering the house of the deceased along with him. Therefore, she has argued that the prosecution has failed to prove that between the mandir and the house of the deceased, where the dead body was lying, nobody else was in the company of the deceased except the accused persons, therefore, ruling out the State Vs. Santosh etc. PS Narela FIR No.378/04 10 involvement any other person in the crime.
15. She has further argued that recovery of Icard allegedly belonging to the deceased pursuant to the disclosure statement of the accused Santosh is highly doubtful, as it does not stand to reason that anyone would retain said Icard with him after the crime, which was not a valuable article of any value to him, and therefore, it shows that same has been planted upon the said accused. Regarding the recovery of silver ring allegedly belonging to the deceased on the disclosure statement of accused Raju @ Chhanga, she has argued that the prosecution has failed to prove that the said ring belonged to the deceased, as the said ring was not shown to PW11, who has his son, and who was the best witness, who could have told the court that the said ring indeed belonged to his father. Further, she has argued that no public witness was associated in the recovery State Vs. Santosh etc. PS Narela FIR No.378/04 11 proceedings to give it credibility. In these circumstances she has argued that prosecution has failed to prove two main circumstances of last seen and recovery against the accused persons, therefore, accused persons deserves acquittal.
16. On the other hand, Ld. Addl. PP for the state has refuted the aforesaid arguments of the Ld. Amicus and has argued that from the testimony of PW11 Sohan Prasad, the son of the deceased, it is clear that deceased after consuming liquor left for temple on the day of Janmashtmi on the day of the incident, when PW11 had come to meet him and PW11 waited for his father to return, when he did not return till about 10:00 p.m, he himself went to the said temple to return the keys of the house, where his father was residing alone and there after handing over the keys, he noticed that his father was dancing in the mandir and all the accused persons were also accompanying his State Vs. Santosh etc. PS Narela FIR No.378/04 12 father and they were talking to each other and on the next day his father was found dead. This piece of last seen evidence clearly shows that it was the accused persons, who had the opportunity to kill the deceased, as they were also lastly seen with the deceased in his company, therefore onus shifted upon them to prove that from the mandir the deceased left alone for his house and was not accompanied by anyone i.e the accused persons. The accused persons have not furnished any explanation in this regard.
17. Further, the recovery of Icard/purse belonging to the deceased pursuant to the disclosure statement of the accused Santosh and recovery of silver ring belonging to the deceased at the instance of accused Raju @ Chhanga is additional corroborative evidence against the accused persons, which shows their culpability or involvement in the present crime, as they have failed to give any State Vs. Santosh etc. PS Narela FIR No.378/04 13 credible explanation, regarding the possession of those articles. In these circumstances, he has argued that the entire chain of circumstantial evidence proved on the record by the prosecution lead to only one inference, that it was only the accused persons, who had committed the crime in question i.e causing the death of deceased Ram Prasad, which is also corroborated by the postmortem report. Therefore, accused persons are liable to be convicted.
18. I have gone through the rival contentions.
19. Admittedly, in the present case, there is no direct evidence and the entire case of the prosecution is based upon circumstantial evidence. In the case of Mohmood Vs. State of U.P. (1976) 1 SCC 542, it has been held that "in a case dependent wholly on circumstantial evidence the court must be satisfied
(a) that the circumstances from which the inference of State Vs. Santosh etc. PS Narela FIR No.378/04 14 guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt:
(b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save t hat of the guilt sought to be proved against him".
20. However, in case Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Supreme; Court referred to and relied upon Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091 AIR 11952 SC 343 and stated the five golden principles constituting the panchsheel of the proof of a case based on circumstantial evidence as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that ....... the circumstances concerned 'must or should' and knot 'may be' established. State Vs. Santosh etc. PS Narela FIR No.378/04 15 There is not only a grammatical but a legal distinction between may be proved' and 'must be or should be proved'.....
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they; should exclude every possible hypothesis except the one to the proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
21. The following circumstances were pressed into service by the prosecution for establishing the guilt of the accused. State Vs. Santosh etc. PS Narela FIR No.378/04 16 a. That all the accused persons were lastly seen in the company of the deceased on the date of the incident i.e 07/08.09.2004, while dancing in the mandir on the day of Janmashtmi and they were also talking with him, which was observed by PW11 Sohan Prasad, son of deceased, when he went to deliver the keys of the house of the deceased to him.
b. That the postmortem report, Ex.PW7/A also corroborated the prosecution version, regarding the time of death, as the time of death was opined as 12 to 18 hours prior to the postmortem and it was also mentioned in the postmortem report that the involvement of more than one person cannot be ruled out.
c. That pursuant to the disclosure statement of accused Santosh, he got recovered one purse, containing the Icard of the deceased from his house.
State Vs. Santosh etc. PS Narela FIR No.378/04 17 d. That pursuant to the disclosure statement of another co accused Raju @ Chhanga, he got recovered one silver ring, belonging to the deceased.
Circumstance(s) No. a & b
22. Aforesaid circumstance(s) are taken together, as they are interconnected with each other. In this regard the testimony of PW11 Sohan Prasad is relevant, who in his testimonial deposition i.e his examinationinchief has deposed as under: "I labouror by profession. My father deceased Sri Ram Prasad was working with MTNL. He used to reside at Pkt 7, Sector A10, Narela. In the year of 2004, on the Janmashtmi Festival, I went to visit my father who was residing alone in the above said house. My mother and other family members were residing at my native place. On the occasion of Janmashtmi, my father had consume liquor and he was under the influence of liquor and I tried to control him by making him to lying on the bed in the house. After some time my State Vs. Santosh etc. PS Narela FIR No.378/04 18 father went outside to attend the festival and at about 10.00 PM, I locked the house and went to Mandir for handing over the keys of the house to my father. I noticed that my father was dancing in the Mandir. All the three accused present in court today (correctly identified) were also with my father and all the four were conversing with each other. After handing over the keys to my father, I left the Mandir and went to Devali Mor Khanpur. In the next morning, I received a telephone that my father had expired. I came to my house and noticed that blood was scattered their (sic). I went to the hospital and identified the body of my father. Police also recorded my statement Ex.PW11/A which bears my signatures at point A. After the postmortem body was handed over to us".
23. The other witnesses of the prosecution regarding the fact that the accused persons were seen entering the house of the deceased Ram Prasad on the date of the incident i.e PW1 Manju and PW2 Raj Mani, who was the witness of the fact that he had seen the accused persons, leaving the temple in the company of deceased to his house State Vs. Santosh etc. PS Narela FIR No.378/04 19 have both turned hostile and have not supported the prosecution story on the aforesaid facts, despite long crossexamination by the Ld. Addl. PP for the state.
24. Though, PW2 Raj Mani stated in his crossexamination by the Public Prosecutor that he had seen Ram Prasad at the temple and he was under influence of liquor, but that does not improve the case of the prosecution. He also stated in his crossexamination that jhuggies of the accused persons were situated at Kamla Market, where his jhuggi was also situated. Thereafter, their jhuggies were demolished and he settled at Sector10, Pocket7, Narela along with the jhuggi of deceased Ram Prasad and he knew one of the accused Santosh, as they also shifted from the said place to Narela.
He also stated in his crossexamination, carried out by the Ld. Addl. PP, that he in a very polite manner asked from the accused State Vs. Santosh etc. PS Narela FIR No.378/04 20 Santosh as to whether he had given any beatings to the deceased Ram Prasad, to which he replied, he had given a leg blow to Ram Prasad. The Ld. Addl. PP for the state has argued that this testimonial deposition of PW2 in his crossexamination by him shows that accused Santosh had made an extra judicial confession before him, regarding his involvement in the present crime, which was clearly admissible against him, and therefore, this was a grave incriminating fact against the said accused. However, the said argument is without any substance, as PW2 in his crossexamination has stated that at the time when he went to the PS after the arrest of Santosh, there were fourfive police officials, present in the police chowki along with the accused Santosh, who was in police custody along with his three associates. He further stated that he did not sign any paper in the police chowki and he cannot tell whether Santosh was under pressure State Vs. Santosh etc. PS Narela FIR No.378/04 21 of the police at that time.
25. In view of the aforesaid deposition of PW2 in his cross examination that at the time when the accused Santosh allegedly told him that he had given leg blow to Ram Prasad, he was in police custody and some 45 police officials were also present in the police chowki, therefore, it cannot be said that the said extra judicial confession, made by the accused Santosh incriminating him in the present crime, for which he has been charged was freely given, as it appears that at that time he was under police custody and under coercion, therefore, it cannot be said that said statement/confession was made freely/voluntarily by the accused Santosh, as he cannot be said to be in free state of mind at that point of time.
26. Regarding the last seen testimony of PW11 Sohan Prasad, it has been held in judgment State of Goa Vs. Sanjay Thakran and State Vs. Santosh etc. PS Narela FIR No.378/04 22 another 2007(2) R.C. R.(Criminal) 458 that: "From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely by ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any State Vs. Santosh etc. PS Narela FIR No.378/04 23 other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case".
27. The Ld. Amicus has also relied upon the judgment State Vs. Santosh etc. PS Narela FIR No.378/04 24 (supra) 2010(3) JCC 2024, in which it was held that "where the prosecution depends upon the theory of 'last seen together', it is always necessary that the prosecution should establish the time of death, which the prosecution has failed to do in this case". She has further relied upon a judgment JT 2009 (11) SC 274, in which the Hon'ble Supreme Court further relied upon a judgment, Bodhraj @ Bodha and others v. State of Jammu and Kashmir 2002(8) SCC 45, in which it was held as under: "The last seen theory comes into play where the timegap between the point of time when the accused and the deceased were last seen alive and when 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. It would be difficult to some cases, to positively establish that the deceased was last State Vs. Santosh etc. PS Narela FIR No.378/04 25 seen with the accused when there is a long gap and possibility of other person coming in between exits in the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
28. In view of the clear elucidation of law laid down by the Hon'ble Supreme Court in the aforesaid judgments, it has to be seen whether the prosecution case passes the tests laid down in the aforesaid judgments on the credibility of the last seen evidence.
29. PW11 Sohan Prasad, the son of the deceased was extensively crossexamined by the Ld. Amicus. He in his crossexamination stated that he was residing at Devli Mor and he used to regularly visit the house of his father and on the date of Janmashtmi festival, he went to meet his father, at about 10:00 a.m and he remained with his State Vs. Santosh etc. PS Narela FIR No.378/04 26 father on the date of the incident till 7:00 p.m and when he handed over the keys to his father, at that time, accused persons were with him, there were some other public persons also present there, but he cannot tell their exact numbers. The distance between house of his father and temple was 200250 yards.
30. Though, the prosecution has not examined any witness residing in the neighbourhood of PW11, who had seen PW11 visiting the house of his father on the date of incident, nor any witness has been examined from the place, where he was residing alone, that he had left for the house of his father at Narela. However, there was nothing unnatural on the part of PW11 to visit the house of his father, more so on the day of festival of Janmashtmi. However, his testimonial deposition only goes to the extent that he had seen the accused persons in the company of his father in the mandir, where he State Vs. Santosh etc. PS Narela FIR No.378/04 27 had gone to return the keys of the house of his father, and at that time accused persons were talking to his father, and after handing over the keys, he left for his house.
31. This witness has also admitted in his crossexamination that many other public persons were also present in the mandir at that time, which is natural, as it was day of Janmashtmi, which is a big Hindu festival to celebrate the birth of Lord Krishna, therefore, many public persons would have been present in the mandir to celebrate the same and to pray. Further, PW11 has stated in his cross examination that the distance between the temple and the house of his father was 200250 yards. The prosecution has also not examined any witness, who could say that he had seen the accused persons travelling/walking along with the deceased to his house and thereafter entering into his house along with him. Though, the State Vs. Santosh etc. PS Narela FIR No.378/04 28 prosecution had examined two witnesses in support of the said facts, but both of them i.e PW1 Manju and PW2 Raj Mani turned hostile on the said aspect and did not support the prosecution story, despite crossexamination by the Ld. Addl. PP.
32. In view of the settled law discussed above, the prosecution had to prove by some positive evidence that the time gap between the point of time, when the accused persons and the deceased were lastly seen alive, and when the deceased was found dead was so small, that possibility of any person other than accused persons being the author of the crime becomes impossible, and if there is a possibility of any other person coming in between in the said time gap, when the accused persons and the deceased were lastly seen together then it would be highly unsafe to convict the accused persons on such kind of evidence.
State Vs. Santosh etc. PS Narela FIR No.378/04 29
33. As discussed above, the accused persons and the deceased were only seen in the public place i.e temple at around 10:00 p.m, on the date of the incident, which also happened to be the day of Janmashtmi, which is a big Hindu festival, which is attended by many public persons to offer prays and to celebrate the same, and PW11 has also admitted that many public persons were present at the temple, when he went to return back the keys to his father. Therefore, it cannot be said that the deceased was in exclusive company of the accused persons merely because accused persons were talking to the deceased. Further, the distance between the house of the deceased and the temple was 200250 yards, therefore on the way, the deceased may have met many other persons, who may be the author of the crime, specially in the present case, as the prosecution has not examined any witness, who had seen the State Vs. Santosh etc. PS Narela FIR No.378/04 30 accused persons entering the house of the deceased. In these circumstances, the last seen evidence of PW11 does not conclusively established on probative scale, where the probabilities of happening any event are measured that it was only the accused persons, who were lastly seen with the deceased, when he was alive and there was no possibility of any other person, being the author of the crime, other than the accused persons.
34. Though, in the postmortem report, Ex.PW7/A, the time since death at the time of conducting the postmortem has been mentioned to be about 12 to 18 hours prior to the conducting of postmortem, which was conducted on 08.09.2004, at 1:30 p.m. Therefore, approximate time of death of the deceased would be 7:30 p.m on 07.09.2004, if the time of death is taken as 18 hours from the time of conducting of postmortem, which also does not match with the State Vs. Santosh etc. PS Narela FIR No.378/04 31 version of PW11, who stated that he had gone to the temple, where his father was dancing at around 10:00 p.m, on 07.09.2004. Further, PW2 Raj Mani, on the other hand had stated that he had seen Ram Prasad (deceased) in the temple after 4:00 p.m, under the influence of liquor. This also gives a contradictory picture, regarding the exact time, when the deceased was present in the temple on the day of Janmashtmi festival. As a resultant circumstance(s) a & b are decided against the prosecution and in favour of the accused persons.
Circumstance(s) c & d
35. Regarding the circumstance(s) No. c & d they are taken together, as they are interconnected with each other. In this regard, I.O PW14 Inspector Mahipal Singh has deposed that on 10.09.2004, at the instance of the secret informer, all the three accused persons State Vs. Santosh etc. PS Narela FIR No.378/04 32 were apprehended from Simriti Van, Narela and their separate disclosure statements were recorded after their arrest, and pursuant to the disclosure statement of accused Santosh, he got recovered one black colour purse, containing Icard of the deceased Ram Prasad, from the pocket of his shirt from a room of his house.
He further deposed that pursuant to the disclosure statement of accused Raju @ Chhanga, he got recovered one silver ring from his shirt, from his house, which was also belonging to the deceased. Admittedly in the present case, no public witness was joined at the time of recovery or arrest of the accused persons. Even, the neighbourers of the accused persons were not called during the recovery proceedings to lend assurance to the same, nor any site plan of the place of recovery were prepared, which has also been admitted by the I.O PW14 in his crossexamination. I.O also admitted State Vs. Santosh etc. PS Narela FIR No.378/04 33 that no chance prints were found at the spot by the crime team. The same would have been the best scientific piece of evidence to connect the accused persons with the crime for which they have been charged.
The other recovery witness HC Satish Kumar has also admitted that no neighbourer or public witness was joined in the recovery proceedings, despite the place where the accused persons Santosh and Raju @ Chhanga were residing were thickly populated one.
36. Further, it does not stand to reason, why would any accused after committing a gory crime would retain the Icard of the person, whom he had killed, as the said Icard was not a valuable article of any use to him. The said Icard was only Icard of the organization, where the deceased was working and it does not stand to reason that any accused would retain it after the crime, rather he would State Vs. Santosh etc. PS Narela FIR No.378/04 34 immediately dispose off the same, more so as the accused persons were arrested three days after the incident. Therefore, the said recovery of Icard at the instance of accused Santosh does not inspire any confidence, nor the said purse was shown to PW11, the son of the deceased, who could have identified the same as belonging to his father.
37. Regarding the recovery of silver ring, at the instance of the accused Raju @ Chhanga, the same also does not inspire any confidence, as it has not been proved by the prosecution that the said silver ring indeed belonged to the deceased, as the same was also not shown to PW11 during his examination, nor the wife of the deceased was called in the witness box to show the same to her that the said ring indeed belonged to the deceased. Therefore, the prosecution has failed to connect the said ring allegedly recovered at State Vs. Santosh etc. PS Narela FIR No.378/04 35 the instance of the accused Raju @ Chhanga with the deceased. Though, even otherwise, the prosecution story regarding the recovery of silver ring at the instance of accused Raju @ Chhanga from his house is not credible due to lack of assuring circumstances of non joining of independent witnesses in the said process.
38. In view of the above discussions, the circumstance(s) c & d are also decided against the prosecution and in favour of the accused persons.
39. From the aforesaid detailed analysis of circumstantial evidence, lead by the prosecution, the prosecution has failed to prove the two main circumstance(s) of last seen, and recoveries at the instance of the accused persons.
40. Applying the principle laid down in the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra, Air 1984 SC 1622 State Vs. Santosh etc. PS Narela FIR No.378/04 36 (Supra), and also the judgment of Hon'ble Supreme Court in Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091=AIR 1952 SC 343 (Supra). I am of the considered opinion that the prosecution has miserably failed to prove its case against the accused persons that is say that the chain of circumstance(s) as discussed above are totally broken and incomplete and from the same an inference cannot be drawn that the accused persons are the persons, who are responsible for the death of deceased Ram Prasad or that is to say that it was only the accused persons, who had committed the murder of deceased Ram Prasad, rather the circumstance(s), discussed above are more compatible with the innocence of the accused persons, as the prosecution has failed to prove even one chain of the circumstantial evidence, they sought to lead against the accused persons to prove their culpability.
State Vs. Santosh etc. PS Narela FIR No.378/04 37
41. On such kind of uncertain evidence, and from the probative force of the entire mass of the prosecution evidence, lead above, which has very low probative force on the probative scales where the probabilities of happening any event is measured. The only inference which can be drawn on such kind of low probative evidence is that of innocence of the accused persons.
42. In these circumstance(s), since the prosecution has failed to prove its case against the accused persons beyond reasonable doubt, all the accused persons are acquitted of the charge(s) U/s 302/34 IPC. Their bail bonds are cancelled. Sureties stand discharged. Original document(s), if any be returned after cancelling the endorsement(s), if any on the same. All the accused persons are directed to furnish their bail bonds, as prescribed U/s 437A Cr. PC. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 24.08.2011 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Santosh etc. PS Narela FIR No.378/04