Delhi District Court
State vs . Taapas Barman on 28 May, 2019
IN THE COURT OF SH. JAGDISH KUMAR ,
ADDITIONAL SESSIONS JUDGE-02 (WEST) , DELHI.
ID No.219-2017
Sessions Case No. 52/17
Assigned to Sessions on 20.07.2017
FIR No. 76/2017
Police Station Madhu Vihar
Under Section 302 IPC
Charged under section 302 IPC
State Vs. Taapas Barman
S/O Lakhi Barman
R/O H. No. 42, Second Floor,
Village, Hasanpur, Delhi
Arguments heard on 22.05.2019
Date of Judgment 28.05.2019
Final Order Acquitted
Appearance(s) : Sh. Rakesh Mehta , Ld. Addl. PP, for the State.
Sh. Rajiv Pratap Singh Ld LAC for accused.
JUDGMENT
PRELUDE
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C, in respect of FIR No.76/2017 U/s 302 IPC of PS Madhu Vihar, Delhi. The charge sheet was committed to the Ld. Sessions Judge (Shahdara), vide order dated 20.07.2017 of the Ld. MM, and the accused was also sent to face the trial for the offence u/s 302 IPC.
BRIEF FACTS
2. The investigation of the case was started after Page 1 of 24 receiving of the DD No.32A dated 06.03.2017, to the effect that the deceased was lying unconscious and police and ambulance was called at the scene of crime. Accordingly, ASI Mool Chand reached at the spot. Meanwhile, other senior officer ie Inspector D.P Singh as well as SHO were also reached at the spot. At the spot complainant Deepali Verma got recorded her statement that on the fateful day she had gone to her work place. Her husband had gone to ply Auto. His elder son was at the home as it was his holiday on that day being Monday. Her another son had gone to his work. When the complainant reached at home she found that the deceased was lying on bed by covering her body with blanket however her face was open. She tried to get her up but deceased has not responded. Accordingly, a call was made to police.
3. During investigation it was revealed that deceased was strangulated and she was having bruises on her hands. It also reveals in the investigation that due to quarrel between the deceased and wife of the accused, the accused has murdered her by strangulating as his wife had left him. His wife has asked the accused that she will not come at her matrimonial home until deceased left the house. The accused being having grudge with the deceased, thinking that his matrimonial life being disturbed due to quarrel between the deceased and his wife, he has committed offence.
Page 2 of 244. During the investigation of the case, IO prepared the site plan at the instance of complainant, arrested the accused and got conducted post mortem of deceased. The statement of witnesses were recorded and finding sufficient evidences available on the file, a challan U/S 173 Cr P C was filed before the Ld. MM for the offence under section U/S 302 IPC against the accused .
THE CHARGE
5. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP for the State and Ld Counsel for the accused, found a prima facie case for the offence punishable under section 302 IPC against the accused. The Charge was framed accordingly vide order dt. 24.08.2017, to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. In order to prove its case, the prosecution has examined 21 witnesses. The PW1 Smt Deepali Verma, PW2 Ranjan Kumar, PW5 Ms Bhawna, PW6 Ms Sapna, PW 7 Ms Tisha, PW8 Lakhi Barman, PW9 Ms Deepa Burman, PW10 Rattan Burman, PW 15 Rajinder Singh and PW20 Sh Vikram Mehra are the public witnesses, while other witnesses are either police officials or medical/ experts witnesses who have participated during the course of investigation.
Page 3 of 247. PW 1 Smt Deepali Verma had deposed that accused was working as driver. On 05.03.2017 she left her house and return back from her work with the accused. She has deposed that she went inside the room and found that the deceased was lying on bed by covering her body with blanket but her face was open. She tried to get her up but deceased has not responded. She has deposed that she made a call to the accused. Accused arrived there and went inside the room where deceased Lalita was lying. Accused also tried to get her up but she did not react. She has deposed that accused made a call to his father and brother Rattan. She has deposed that a call was made to the police. Police arrived at the scene of crime and tried to get her up but there was no reaction in the body of deceased Lalita. She has deposed that police recorded her statement Ex PW1/A.
8. PW 2 Sh Ranjan Kumar has deposed that that accused was residing on third floor of the building alongwith his parents, brother, sister and wife. He has deposed that accused met him at the Red light of Sai Mandir, Hassan Pur and he asked the accused whether accused on holiday.
9. PW3 Dr Abbas Ali has proved the MLC Ex PW3/A which was prepared under his supervision by Doctor Samntha.
Page 4 of 2410. PW4 Dr S. Lal has conducted post mortem on the dead body of Lalita Barman and prepared the PM report Ex PW4/A. He has opined the cause of death was asphyxia due to antemortem ligature strangulation which is sufficient to cause death in ordinary course of nature.
11. PW5 Ms Bhawna has deposed that on 05.03.2017, deceased Lalita made a call to her and had normal talk on phone. The deceased told her that she wanted to meet her. She has deposed that the deceased was sad at that time. She has deposed that deceased also informed her that there was quarrel between accused and his wife Smt Deepa Barman.
12. PW 6 Ms Sapna and PW 7 Ms Tisha have deposed that they alongwith their family were residing in a room in front of deceased Lalita and accused alongwith his wife were residing in a separate room on the same floor where these witnesses were residing . They have deposed that on the date of incident between 11 - 11.30 pm loud music was being played in the room of deceased Lalita, due to which both the witnesses felt disturbance in their study. They have deposed that they had a pet dog and it bark to strangers and on the date of incident the dog had not barked.
13. PW8 Lakhi Barman has deposed that deceased Lalita Page 5 of 24 was residing with him before her death as she was taken care of her after the death of her mother. He has further deposed that deceased was married to one Deepa prior to one year of the death of Lalita. Accused was residing in the same floor of the said building alongwith his wife in a separate room. He has deposed that at about 2.00 or 2.30 pm, accused made a call to him and requested him to come to house and said that " Lalita ko kuch ho gaya hai". He has rushed to the house and found Lalita was murdered and her dead body was lying on the bed.
14.PW9 Deepa Burman, wife of the accused. She has deposed that she was married to accused on 29.04.2019. She has deposed that her in-laws including her father-in-law, mother-in-law, brother-in-law Ratan Burman and sister-in- law were also residing in the same premises but in a different room. She has deposed on the day of incident she had gone to her mother's house around 6.00 a.m in the morning and came to her matrimonial house around 2.30 PM.
15.PW10 Sh Rattan Burman, has deposed that on 06.03.2017 between 2 or 2.15 pm, accused made a phone call to him to reach home immediately and when he reached at home, he found his sister Lalita died, her death was unnatural. He has deposed that accused had asked him to inform the police and then accordingly informed the police. He handed over one mobile phone make Samsung, having Page 6 of 24 IMEI No. 354780059854835 having SIM of Vodafone, which was identified by him as Ex P6.
16.PW11 Ct Vinod on 06.03.2017, DD no. 32-A Ex.Z2 was handed over to him by Duty Officer. He took it and and handed over to ASI Mool Chand who has already at the spot ie house no. 42, Village Hassanpur, Delhi and he reached at the spot . He found a dead body of a girl covered with shawl lying on the bed in a room on the second floor and ASI Mool Chand ecorded statement of Smt. Deepali Burman and also prepared ruqqa for registration of FIR through and handed over to him for registered FIR Ex.PWZ.1
17. PW 12 Ct Navdeep on receipt of DD No.32-A accompanied ASI Mool Chand at the spot. He has deposed that they found one girl lying on the bed covered with blanket. On checking the body ligature mark were there on the neck of the girl. He has proved identification memo of dead body vide Ex PW12/A. He has also handed over the exhibits to Inspector D.P. Singh vide memo Ex PW12/B. He has deposed that accused was interrogated and arrested vide memo Ex PW 12/C. Personal search of accused was conducted vide memo Ex PW12/D. Disclosure statement of accused was recorded vide Ex.PW12/E. He has deposed that accused led the police to the place of occurrence and IO prepared pointing out memo Ex PW12/F. He has deposed that one FM radio/music system was taken into possession by the IO vide memo Ex PW 12/G. Page 7 of 24
18. PW 13 Sh Israr Babu, Nodal Officer, Vodafone has produced the CDR of mobile phone no. 9999865872, of which accused was the subscriber vide his application form Ex.PW13/A and his call details record for the period of 05.03.2017 to 06.03.2017 is Ex.PW13/B. He also produced the record of CDR and CAF of mobile phone no. 8377032556, which was in the name of the brother of accused namely Rattan Burman and the CDR of this mobile phone number for the period of 05.03.2017 to 06.03.2017 is Ex.PW13/D.
19.PW 14 Sh Sukhbir Singh, Nodal Officer, Idea Cellular Ltd produced CAF and CDR of mobile phone no. 9990833720, which was in the name of Deepali, wife of Lakhi Burman vide CAF Ex.PW15/A and the CDR of this number for the period of 05.03.2017 to 06.03.2017 is Ex.PW14/B. He has also produced the record of CDR and CAF of mobile phone no. 9540796379, which was in the name of Lakhi Burman vide CAR Ex.PW14/C and the CDR of this mobile phone number for the period of 05.03.2017 to 06.03.2017 is Ex.PW14/D. He has also produced the record of CDR and CAF of mobile phone no. 7065548567, which was in the name of Tara Chand vide CAF Mark-PW14/E and the CDR of this mobile phone number for the period of 05.03.2017 to 06.03.2017 is Ex.PW14/F and the certificate u/s 65-B of Indian Evidence Act is Ex.PW14/G and Ex.PW14/H.
20. PW 15 Sh Rajender Singh who is the owner of property no.
Page 8 of 2442, Village Hassanpur, Delhi, having four-storied building, has deposed that he had let-out premises to accused and his father on 2nd floor on the same floor and both the rooms were in juxtaposition.
21. PW-16 Ct Nitesh on 06.03.2017, he has delivered the copy of FIR of this case to Area Magistrate, DCP and Joint CP.
22. PW-17 ASI Mool Chand, has deposed that on 06.03.2017, DD no. 32-A was assigned to him which was in respect of death of a woman at house no. 42, Village Hassanpur, Delhi and he reached at the spot with Ct. Navdeep and they found a dead body of a girl covered with shawl lying on the bed in a room on the second floor and he recorded statement of Smt. Deepali Burman and also prepared ruqqa Ex.PW17/A for registration of FIR through Ct. Vinod, who got registered FIR Ex.PWZ.1.
23. PW 18 SI Hawa Singh has deposed that on 07.03.2017 he has joined the investigation of this case with Inspector D.P. Singh. He has also proved the disclosure statement of accused vide Ex.PW12/E. He has deposed that accused was interrogated and arrested vide memo Ex PW 12/C. The Personal search of accused was conducted vide memo Ex PW12/D. He has deposed that accused led the police to Page 9 of 24 the place of occurrence and IO prepared pointing out memo Ex PW12/F. He has deposed that one FM radio/music system was taken into possession by the IO vide memo Ex PW 12/G.
24. PW 19 Ct Dharambir has deposed that on 12.05.2017 he has joined the investigation of this case with Inspector D.P. Singh. He has deposed that mobile phone make Samsung, produced by Rattan Barman was seized and taken into possession vide memo Ex PW10/A.
25. PW 20 Sh Vikram Mehra, Assistant General Manger, Maruti Workshop, Patpartganj Delhi has deposed accsued was working in the company as pick and drop driver. He has deposed that on 06.03.2017, accused was on weekly off and not in office as per letter Ex.PW20/A.
26. PW 21 Inspector D.P. Singh, IO of the case has deposed that on 06.03.2017 on receipt of DD No.32-A at P.S Madhu Vihar, he also reached at the spot. On reaching at the spot, he met Ct Navdeep and ASI Mool Chand and some public persons including Smt. Deepali Burman, mother of deceased Lalita Burman. He has deposed that on the second floor of the house , dead body of a girl was lying on the bed. He has deposed that there are ligature mark on the neck of the deceased and some bruises on the left arm Page 10 of 24 of the deceased were visible. After registration of FIR, the investigation was assigned to him, he called Crime Team at the spot and got inspected the scene of crime from the said team and obtained the crime report Ex.Z6. The photographer of the said team had taken 13 photographs Ex.Z12 (colly), PW-21 also prepared site plan Ex.PW21/A.
27. He has deposed that he collected blood samples from exhibits i.e., pillow cover, bed sheet and bed cover and seized the same vide seizure memo Ex.PW11/A from the place of incident, and he has also seized those pillow cover, bed sheet and bed cover Ex.P8, P9 and P10 vide memo Ex.PW11/B. One blanket with which the dead body of Lalita was covered, was also seized vide memo Ex.PW11/C. One stole lying near the dead body on the bed was also seized vide memo Ex.PW17/B.
28. He has further deposed that he has also prepared inquest papers including Form no.25/36 (1-N) Ex.PW21/B and got conducted post mortem on the body of the deceased vide application Ex.PW21/C. After post mortem the doctor handed over him the exhibits i.e. clothes of deceased, vaginal swab and blood of deceased in gauge piece which were seized vide memo Ex.PW12/B. He has also deposed that during inquiry from the neighbourers and other family members, conduct of the accused appears to be suspicious Page 11 of 24 and accused was interrogated by him. Accused made disclosure statement Ex.PW12/E and in pursuance of disclosure statement, accused got recovered the music system which was being played in high volume at the time of incident. The said music system was seized vide memo Ex.PW12/G. Accused was arrested vide arrest memo Ex.PW12/C and personal search was also conducted vide memo Ex.PW12/D.
29. He has also deposed that during the course of investigation the exhibits were sent to FSL and he has also collected FSL report Ex.Z8. He has also obtained subsequent opinion from the doctor regarding use of stole in commission of offence , which was recovered from near of the dead body and as per opinion of the doctor Ex.PW4/B the injury no. 4 on the body of deceased i.e., ligature mark could be possible from the said stole . He has also got prepared scaled site plan Ex.Z5 of the scene of crime.
STATEMENT OF ACCUSED.
30.After completion of the prosecution evidence, the statement of accused , under section 313 Cr.P.C., was recorded so as to enable him to personally explain the circumstances appearing in the evidence against him. All the incriminating evidence was put to the accused to Page 12 of 24 which he has denied, as being incorrect and has stated that a false case has been registered against him and he has been falsely implicated in this case. Accused has chosen not to lead defence evidence.
ANALYSIS & DETERMINATION
31. I have heard the Ld. Addl. Public Prosecutor Sh. Rakesh Mehta for the State and, Ld Counsel for the accused . I have carefully perused the entire record including the testimonies of prosecution witnesses, documentary evidence and the statements of the accused person. I have given a thoughtful consideration to the same.
32. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence with which the accused are charged with. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused persons become entitled to the benefit of doubt ultimately leading to their acquittal. Emphasis can be supplied upon a case titled Sadhu Singh Vs. State of Punjab 1987 (3) Crimes 55 .
33. Now in the instant case, the accused has been charged with the offence u/s 302 IPC.
34. So the The court shall firstly deal with the essential Page 13 of 24 ingredients which prosecution is required to prove in order to establish the charge against the accused.
35. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on case titled Narsingh Challan Vs. State of Orissa.(1997) 2 Crimes 78
36. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is Page 14 of 24 caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
37.Further pertinent to mention here that in cases like death / murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The jaw regarding the nature and Page 15 of 24 character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. it must be such as to show that within all human probability the act must have been done by the accused."
38.This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 Where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
(2) the facts so established should be consistently only with the hypothesis of the Page 16 of 24 guilt of the accused that is to say, they should not be explained 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 that one to be 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.
FACTUM OF DEATH OF DECEASED.
39. The first fact which has to be ascertain is the death of deceased Lalita. In this regard PW1 Deepali Verma has categorically deposed that on 05.03.2017 when she return back from her work with the accused. She went inside the room and found that the deceased was lying on bed by covering her body with blanket but her face was opened. She tried to get her up but deceased has not responded. The post martem examination upon the dead body of deceased was conducted vide Ex PW4/A. The dead body was identified by PW1 as of deceased Lalita vide memo Ex PW 1/B. So factum of death of deceased Lalita has been proved on reord.
CAUSE OF DEATH
40. PW4 Dr S. Lal, who has conducted post mortem on the Page 17 of 24 dead body of Lalita Barman and prepared the PM report Ex PW4/A has opined the cause of death was asphyxia due to antemortem ligature strangulation which was sufficient to cause death deceased Lalita in ordinary course of nature. So cause of death of deceased Lalita was strangulation which is proved on record.
41.Now the question arises who has strangulated the deceased. The prosecution story mainly rests upon last seen theory.
LAST SEEN THEORY / CIRCUMSTANTIAL EVIDENCE.
42.Before further adverting to facts of last seen in evidence in present case. I would like to mention certain settled principle of law which has to be considered while relying upon the last seen evidence. Last seen theory is a circumstantial evidence which means that the accused was last seen with the deceased ( when She was alive) and whereafter the deceased has been found dead. It is infact a presumption of fact which presumes that because deceased was last seen in the company of accused, it is accused who is required to explain how he/she died. Last seen evidence by its very nature is a weak kind of circumstantial evidence and is very well affected by a number of factors viz the gap between last seen and time of death, the conduct of the accused after last seen and till Page 18 of 24 arrest and other surrounding factors like motive and even recoveries. The Hon'ble superior Courts in a catena of judgments have reiterated the nature, admissibility and weight of last seen evidence keeping in view the very fact that even last seen theory is required to be proved by established facts before the same can be actually weighed for the purpose of its relevance for ascertaining guilt/innocence of the accused.
43. In Kamla Devi Vs. State of Delhi 2012 JCC 1457 it has been held that merely because presence of the accused with deceased is established, the same by itself cannot be taken as strong incriminating circumstance to connect accused with commission of crime. The same is not sufficient in absence of complete chain of circumstances.
44. In Trilochan Verma Vs. State, 2013(4) JCC 2585 it has been held that the theory of last seen together is not a universal application and in the absence of any other positive corroborative evidence, it would be hazardous to come to a conclusion of guilt in such cases.
45.In Mohibur Rehman & Anr Vs State of Assam (2002) 6 SCC 715, it has been held that " the circumstances of last seen does not by itself necessarily lead to inference that it was the accused who committed the crime, the Hon'ble Apex Court has held that it may depend upon a Page 19 of 24 number of other factors and there may be cases where on account of other clinching evidence, the close proximity of time and place between the last seen and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
46.In Arjun Malik Vs State of Bihar 1994 Supp (2) SCC it has been held that solicitory circumstance of the accused and victim last seen together will not complete the chain of circumstances for the Court to record the finding that it is consistent only with the hypothesis of guilt of the accused. No conviction on that basis alone can be founded. Also in Sahadeva & Anr Vs State of Tamilnadu 2012 (3) JCC 1756. In nutshell last seen evidence is a weak kind of circumstantial evidence requiring corroboration from other established and clinching evidence and it would not be safe to found a conviction solely on the ground unless other reliable evidence form a complete chain of circumstantial evidence leading to only one conclusion forming hypothesis of guilt of the accused inconsistent with his innocence.
47. Here in the present case, the case of prosecution based upon last seen theory. To prove the circumstantial evidence and last seen theory the first fact which has to be proved Page 20 of 24 by the prosecution is the motive to commit the offence. As per prosecution story the motive to kill the deceased by the accused is that his wife has left the house due to quarrel with the deceased and wife of the accused has refused to return to the house until the deceased does not left the house. In this regard there is no iota of evidence on record which can prove this motive. There are certain facts which come in the cross examination of PW1 Deepali Verma that on the date of incident wife of accused was at her matrimonial home. But the witness has simultaneously deposed that she does not know since when the wife of the accused has gone to her matrimonial home. These evidence in itself disproved the fact that the wife of the accused left the house of the accused after quarrel with the deceased. PW 5 Bhawna has also not supported the case of the prosecution that deceased has called her one day prior to the incident and told her regarding her relationship with wife of the accused. It has also not come on record that accused, his wife and family of the deceased were cooking food jointly. So the prosecution has miserably failed to prove the motive of crime.
48. The next point which has to be considered is whether the prosecution has able to prove the fact that any of the prosecution witness has lastly seen the accused with deceased. In this regard the prosecution has totally failed to prove on record as the star witness cited by prosecution Page 21 of 24 PW1 Smt Deepali Verma, PW2 Ranjan Kumar, PW5 Ms Bhawna, PW6 Ms Sapna, PW 7 Ms Tisha, PW8 Lakhi Barman and PW9 Ms Deepa Burman have totally retracted from the version of prosecution story. Rather PW 6 Sapna has stated that she has not stated to the police regarding the fact that accused was lastly seen coming from the room of the deceased.
49.The prosecution witnesses have deposed that the premises where the incident occurred is the place where any person can enter easily because there are 20 tenants residing in the premises in separate rooms and main door is remained opened.
50. The conduct of the accused that he was perplexed when he met PW 2 Rajan Kumar is also demolished, as this fact has not been supported by PW 2.
51.The story of the prosecution is also not seems to be genuine regarding the factum of barking of the dog. In the present case accused was residing on the same floor where the deceased was residing and where the offence has been committed. The dogs which are stated to be barked are also kept on the same floor. Once accused is residing on the same floor then it is highly presumable that he could have been familiar with the pets. In that circumstances, if accused would have gone from that floor in perplexed Page 22 of 24 condition then also dogs could not have barked as they are familiar with the accused. Moreover, it is not a proven theory of science that dogs generally barked on the stranger.
CONCLUSION.
52. In the ultimate analysis of the statements given by PWs and the circumstances discussed above surrounds the entire prosecution version in a clouds of doubt. The prosecution version is marred by serious contradictions unexplained by any plausible explanation. In the judgment reported as Madari @ Dhiraj & Ors. Vs State of Chhatisgarh, 2004(1) C.C. Cases 487 it has been held that crucially the materials and evidence on record do not bridge the gap between "may be true" and "must be true", so essential for a Court to cross, while finding the guilt of an accused.
53. The prosecution has utterly failed to prove its case beyond the pale of reasonable doubt. It would not be safe to base a conviction on the basis of aforesaid established facts in the wake of contradictions and clouds of doubt. The accused become entitled to the benefit of doubt and are accordingly granted so. He is acquitted of the charges Under Section 302 IPC.
54. In view of the statutory requirement of section 437-A Page 23 of 24 Cr.P.C. the accused is directed to furnish a bail bond in the sum of Rs.10,000/- with one surety of like amount to the satisfaction of the court, for a period of 6 months, to appear before the appellate court, if so required.
55. File be consigned to record room after due completion.
Digitally signed by JAGDISH KUMARJAGDISH Location:
Shahdara District, KUMAR Karkardooma Courts Date: 2019.06.03 ANNOUNCED IN THE OPEN 16:49:08 +0530 COURT ON THIS 28.05.2019 (JAGDISH KUMAR ) ADDI. SESSIONS JUDGE-04 (SHAHDARA):DELHI Page 24 of 24