State vs Praveen @ Partima @ Bobby on 19 May, 2012

[Cites 12, Cited by 0]

Delhi District Court

State vs Praveen @ Partima @ Bobby on 19 May, 2012

                             1

             IN THE COURT OF SHRI M.K.NAGPAL
        ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
             SAKET COURTS COMPLEX, NEW DELHI


State      Versus         Praveen @ Partima @ Bobby
                          W/o Sh Ansar Alam
                          R/o H.No. 668, Khori Village
                          Gali No. 14, Lal Kuan
                          Near Bilal Maszid, PS Surajkund
                          Faridabad, Haryana.

                          2. Naushad
                          S/o Sh Maqsood Alam
                          R/o H.No. 668, Khori Village
                          Gali No. 14, Lal Kuan
                          Near Bilal Maszid, PS Surajkund
                          Faridabad, Haryana.

                          3. Madan Lal Pandey
                          S/o Sh Onkar Nath Pandey
                          R/o D-170/3 Sangam Vihar
                          New Delhi.

                          4. Nanak Chand Gupta
                          S/o Sh Ram Swaroop Gupta
                          R/o G-1426 Veer Bazar Road
                          Sangam Vihar, New Delhi.


SC No.   : 26/08
U/S      : 302/34 IPC & 25/27 Arms Act
COMPUTER ID NO. : 02403R0316472008


Date of institution                  : 28.05.2008
Date of reserving judgment           : 14.05.2012
Date of pronouncement of judgment    : 19.05.2012




SC No. 26/08              State Vs Praveen @ Partima @ Bobby & Ors.
                                           2

J U D G M E N T

This case pertains to the murder of one Sh Chanderbhan which allegedly took place in the evening time on 10.02.2008. The police machinery in this case was brought into motion on receiving of one information recorded in PS Okhla Industrial Area, vide DD No. 24A dated 11.02.2008 at about 7.10 PM regarding recovery of a dead body from the jungle opposite the Airtel office, Okhla. The above DD was assigned for inquiry to PW11 ASI Nizamuddin Khan and he had reached at the spot, i.e. at a park opposite Airtel office, Okhla. In the meanwhile, the IO/PW26 Inspector Raj Kumar had also reached there and it was found that a dead body was lying on the track of the above park and some firearm injuries were observed on the person of the deceased and blood was also found to have oozed out of the said injuries. One empty cartridge of 8MM KF and one helmet were also found lying near the dead body and one motorcycle no. DL 3S BF 0409 was found parked outside the gate of the above park.

2. As per the police version, the complainant/PW1 Sh Suresh, who is the brother of the deceased Chanderbhan, had come present at the spot and the IO/PW26 had recorded his statement Ex. PW1/G, wherein it was stated, inter-alia, by the complainant/PW1 that on 10.02.2008 at about 3 PM his deceased brother had left on SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

his above motorcycle after receiving a call from a lady on his mobile no. 9718183675 while saying that he was going to take some money from one Shamim and he did not return back. It was also stated by the complainant/PW1 in his above statement that when the deceased did not reach back to his house, the wife of the deceased had called the complainant/PW1 and told about the same and thereafter the complainant/PW1 as well as his brother Sh Vishnu/PW2 had also been calling the deceased on his mobile phone, but the calls had gone unanswered. In the morning on being informed by local police, they both had arrived at the above park and had found the dead body of their deceased brother lying on the track of the said park.

3. It is also alleged in the chargesheet that thereafter the IO/PW26 had got the crime spot visited by the crime team, prepared the site plan Ex. PW26/B and had also got the spot photographed. He had also prepared the sketch Ex. PW1/A of the above empty cartridge and seized it vide memo Ex. PW1/B, also seized the earth control and the blood stained earth from the spot vide memos Ex. PW1/E and PW1/F respectively and had further seized the above motorcycle and the helmet lying at the spot vide memos Ex. PW1/C and PW1/D. He had further conducted the proceedings U/S 174 Cr.P.C Ex. PW26/D at the spot.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

4. On the next day, i.e on 12.02.2008, the dead body of the deceased was got postmortemed by the IO/PW26 through PW11 ASI Nizamuddin Khan at the AIIMS Hospital vide application Ex. PW26/C and two bullets, i.e one found in the body and other in jacket of the deceased, and also some blood in gauze and some other swabs, which were in the form of sealed parcels and were handed over by the doctor concerned to the police official at the time of postmortem, were also taken into possession vide seizure memo Ex. PW8/A. The accused no. 1 Praveen @ Partima @ Bobby was arrested in this case on 15.02.2008 vide arrest memo Ex. PW9/A and her personal search was conducted vide memo Ex. PW9/B and her disclosure statement Ex. PW9/C was also recorded in the case. In the above disclosure statement she is alleged to have confessed that she had got murdered the deceased by the accused Naushad as the deceased was keeping an evil eye on her and she wanted to get rid of the deceased. She had disclosed therein that at her instance the accused no. 2 had fired two shots from a country made pistol on the back of the deceased. One mobile phone of the accused no. 1 make Motorola and having Sim No. 9990438076 were also taken in possession in this case vide seizure memo Ex. PW9/D and she is further alleged to have pointed out the place of commission of the murder vide memo Ex. PW9/E.

5. The IO/PW26 had further collected some call SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

details of the above two mobile numbers of the deceased and of the accused no. 1 and also of the mobile no. 9999699391 of the accused no. 2, which had figured during the investigation, from the concerned service providers and it was found that the location of all the above three mobile phones was in the vicinity of the place of commission of the crime and it was further found that the deceased and the accused no. 1 and also the accused no. 1 & 2 inter-se were in contact with each other, before and around the relevant time of the commission of the offence. However, the accused no. 2 was found to be absconding from his local address of Delhi as well as his native address of West Bengal. The chargesheet was ultimately prepared for commission of the offences punishable U/S 302/34 IPC against the accused no. 1 and the same was filed in the court of the Ld MM concerned on 12.05.2008 and the case was committed to the Sessions Court vide order dated 23.05.2008.

6. However, subsequently, the accused no. 2 was also arrested in a theft case by the Kolkata Police and he is alleged to have made a disclosure statement Ex. PW21/A regarding his involvement in the commission of the crime of this case. On getting information about the same PW29 SI Vijay Kumar Singh of the Delhi Police had visited Kolkata and had taken the accused no. 2 on transit remand and after his production before the court of Ld MM SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

concerned at Delhi, the above accused was taken on police remand. It is being alleged that during his police custody the accused no. 2 had made another disclosure statement Ex. PW15/A in which he had also disclosed the involvement of one Sanu in commission of the above murder. It was disclosed by him that at the instance of the accused no. 1, he had arranged two country made pistols and some live cartridges through some friend from Etah, UP and on the above date of incident, he as well as his above associate Sanu had fired two shots each from the back of the deceased Chanderbhan and one shot fired by each of them had gone to hit the deceased. It was also disclosed by him in his above statement that after killing the deceased he as well as the above Sanu had both left the above two country made pistols and two live cartridges with his friend Madan Lal Pandey, i.e. the accused no. 3 herein and he had fled from Delhi.

7. Acting upon the disclosures made by the accused no. 2, the police officials had arrested the accused no. 3 on 08.05.2008 from the area of C Lal Chowk, Govindpuri on the pointing out of the accused no. 2 vide arrest memo Ex. PW15/B and his personal search was conducted vide memo Ex. PW15/C and in his disclosure statement Ex. PW15/D it was disclosed by the accused no. 3 that the above Sanu had taken his country made pistol on the next day, but when the accused no. 2 had not returned to take SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

back the other country made pistol and two live cartridges, he had sold the same to accused no. 4 Nanak Chand for Rs 2400/-. The accused no. 3 is also alleged to have subsequently got recovered the above country made pistol and two live cartridges from the accused no. 4 on the same day and the accused no. 4 was also arrested in this case vide arrest memo Ex. PW15/G and his personal search was conducted vide memo Ex. PW15/H. A sketch of the above two country made pistol and two live cartridges of 8MM KF prepared by the IO/PW26 is Ex. PW15/E and the seizure memo thereof is Ex. PW15/F.

8. It is also the case of the prosecution that subsequently the accused no. 2 had refused to join the judicial TIP proceedings dated 12.06.2008 and he was subsequently identified by the witnesses. Though search of the above Sanu was also conducted, but no trace of him could be found and hence a supplementary chargesheet was also filed against the accused no. 2, 3 and 4 for commission of the offences punishable U/S 302/34 IPC and 25/27 of the Arms Act by the accused no. 2 and the offences punishable U/S 25 of the Arms Act by the accused no. 3 and 4.

9. The supplementary chargesheet was filed before the Ld MM concerned on 24.07.2008 and the matter was directed to be sent to the Sessions Court vide order SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

dated 18.08.2008 of the Ld MM. Both the main case as well as the supplementary case were subsequently clubbed together for trial vide order dated 16.09.2008 of this court.

10. A prima facie case for commission of the offences punishable U/S 302/34 IPC by both the accused no. 1 and 2 and also U/S 27 of the Arms Act against the accused no. 2 and further U/S 25 of the Arms Act only against the accused no. 3 and 4 was found to be made out vide order dated 05.09.2009 of this court and charges were directed to be framed against them accordingly. However, though the charges against the accused no. 1 and 2 were correctly framed, but it was subsequently observed after the conclusion of the final arguments that the charges framed against the accused no. 3 and 4 were not proper and in consonance with the above order of this court and hence the charges framed against the above two accused persons on 10.09.2009 were directed to be amended vide order dated 17.05.2012 of this court and instead of a charge U/S 27 of the Arms Act, an amended charge for the offence punishable U/S 25 of the Arms Act was framed against the above two accused persons separately on the same day. Since, the above amendment carried out by this court was not causing any prejudice to the above two accused and further since there was no requirement of holding of the trial de-novo or taking of any further SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

evidence, the matter was proceeded further with the consent of Ld Additional PP for the State as well as the Ld counsels representing the above two accused.

11. The prosecution in support of its case has examined on record total 31 witnesses and their names and the purpose of examination is being stated herein below:

12. PW1 Sh Suresh is the brother of the deceased Chanderbhan and also the complainant of this case. PW2 Sh Vishnu is also the brother of the deceased and both the above witnesses have reached the above park where the dead body of the deceased was recovered and they are witnesses of the proceedings conducted at the above spot. PW1 is also a witness of the sketch Ex.PW1/A of the empty cartridge recovered from the spot, its seizure memo Ex. PW1/B, seizure memos of the motorcycle and helmet Ex. PW1/C and Ex. PW1/D respectively and the seizure of the earth control and blood stained earth vide memos Ex. PW1/E and Ex. PW1/F respectively.

13. PW3 Smt Rachna is the wife of the deceased and she is a witness of the ' l ast seen' fact of the deceased and the accused no. 1.

14. PW4 Sh Kishan Singh is the father of the deceased and besides deposing about the going of the deceased with SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

accused no. 1, he has also identified the dead body of his deceased son vide his statement Ex.PW4/A.

15. PW5 HC Vijender is the motorcycle rider who had taken the IO/PW26 Inspector Raj Kumar to the place of recovery of the dead body in the morning of 11.02.2008 (it appears that due to some typographical or other mistake the date has been recorded/stated in his statement as 10.11.2008 instead of 11.02.2008). He had also subsequently taken the rukka to the PS for the registration of the case.

16. PW6 ASI Shanti was the duty officer of the PS at the relevant time and she had recorded the FIR Ex.PW6/A of this case.

17. PW7 Sh Bahadur Singh is a chance witness of the prosecution who claims to have lastly seen the deceased in the company of the accused no. 1 and 2 in the above said park shortly before the murder of the deceased.

18. PW8 Ct. Kamlesh had accompanied ASI Nizamuddin to the AIIMS mortuary on 12.02.2008 when the dead body of the deceased was identified and he is also a witness of the seizure of six pullandas etc. vide memo Ex.PW8/A, which were handed over by the doctor to the IO/PW26.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

19. PW9 Lady Ct. Sarita Kumari and PW10 Ct. Vinod had both participated in the investigation of this case on 15.02.2008 when the accused no. 1 was arrested and they are witnesses of her arrest memo Ex. PW9/A, personal search memo Ex. PW9/B, disclosure statement Ex. PW9/C and the seizure memo Ex. PW9/D of one mobile phone of make Motorola recovered from the above accused. PW10 has also stated that on 16.02.2008 he had also participated in the investigation of the case when the above accused had pointed out the place of commission of the offence vide memo Ex.PW9/E.

20. PW11 ASI Nizamuddin was assigned the above DD No. 24A Ex.PW11/A regarding the recovery of the above dead body and he had reached at the spot and has deposed about the proceedings conducted by the IO/PW26 Inspector Raj Kumar, who had also reached at the spot in the meanwhile. He is also a witness of the documents Ex. PW1/A to Ex. PW1/E, alongwith PW1/complainant (due to typographical mistake the date has also been wrongly typed/recorded in his statement as 01.02.2008 instead of 11.02.2008).

21. PW12 SI Nafe Singh was the in-charge of the mobile Crime Team which had visited the spot on 11.02.2008. He had got the scene of crime photographed and had also inspected the same and had given his report Ex. PW12/A, but no chance prints were found at the spot.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

22. PW13 Dr Adrash Kumar and PW27 Dr Arvind Kumar of the department of Forensic Medicine, AIIMS had conducted the postmortem examination of the dead body of the deceased on 12.02.2008 and had proved on record their report Ex. PW13/A. The cause of death of the deceased in their opinion was haemorrhagic shock due to the fire arm injuries suffered by the deceased.

23. PW14 Ct. Ramesh Rathi was also the motorcycle rider of the PS and he had only gone to deliver the copies of the FIR to the area MM, DCP and the Joint CP.

24. PW15 Ct. Siya Ram and PW23 HC Rajpal have both participated in the investigation of the case on 08.05.2008 and are witnesses of the arrest of the accused no. 3, at the instance of the accused no. 2, and also of the arrest of accused no. 4, at the instance of accused no. 3. They have also witnessed the disclosure statement Ex. PW15/A of accused no. 2, pointing out memo of spot Ex. PW23/A at his instance, arrest, personal search memo and disclosure statement of accused no. 3 Ex.PW15/B, Ex. PW15/C and Ex. PW15/D respectively, arrest and personal search memos of accused no. 4 Ex. PW15/G and Ex. PW15/H respectively and also the sketch Ex. PW15/E and seizure memo Ex. PW15/G of the above country made pistol and two live cartridges recovered from the house of accused no.

4. SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

25. PW16 HC Ram Chander was the MHC (M) of the PS at the relevant time and he has deposed about the deposit and movement of the various exhibits of the case in and out of the malkhana and has also proved on record the relevant entries as Ex. PW16/A of his register no. 19 in this regard.

26. PW17 ASI Bhikhu Ram was also a member of the Crime Team which had visited the spot on 11.02.2008 (wrongly typed/stated as 11.12.2008) as a finger print expert and as proved on record his report Ex. PW17/A while saying that no finger prints could be traced at the spot.

27. PW18 Sh Deepak Kumar, the Nodal Officer of Idea Cellular Ltd. has brought on record the call details record of mobile nos. 9990438075,9990438076 and 9718183675 for different periods as Ex. PW18/A. Subsequently, on being recalled by the prosecution on an application U/S 311 Cr.P.C, he has also produced on record the Cell ID Chart to show the locations of the above mobile nos. 9990438076 and 9718183675 on the day of commission of the offence as Ex. PW18/B and a certificate U/S 65B of the Evidence Act regarding its correctness as Ex.PW18/C.

28. PW19 HC Zakir Hussain had only taken one sealed SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

pullanda of this case to FSL Rohini on 03.06.2008 vide RC No. 141/21/08.

29. PW20 Ct. Manoj Kumar had also taken four sealed pullandas of this case to FSL Rohini on 03.06.2008 vide RC No. 69/21/08.

30. PW21 SI Raju Das is from the Anti Dacoity and Robbery Squad of the Kolkata Police and he has stated that he was investigating a case no. 64/08 U/S 380 IPC of PS Burra Bazar, Kolkata on 28.04.2008 and the accused no. 2 was in custody in that case. He also claims to have recorded one disclosure statement Ex. PW21/A made by the above accused regarding his involvement in this case and thereupon he had intimated his senior officers and the Delhi Police in this regard.

31. PW22 Sh Vijay Kumar Goel was running a mobile phone and accessory shop and he had issued three Sim Card numbers 9990438074, 9990438075 and 9990438076. He has stated that the first number was issued in the name of Sh Suresh and the other two numbers were taken in the name of Sh Chanderbhan and he has brought on record the identity and other documents submitted to him by the deceased Sh Chanderbhan as Ex. PW22/A at the time of issuance of the above three Sims.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

32. PW24 Sh Ajay Goel, the then Ld MM had only conducted the TIP proceedings Ex. PW24/A of the accused no. 2 on application Ex. PW24/B of the IO, on which the above accused had refused to join the proceedings.

33. PW25 Ct. Kapil was also the member of the above Crime Team visiting the spot and he had taken the photographs mark PW25/A1 to PW25/A9 of the spot, but the negatives thereof have not been produced on record by this witness or by the IO.

34. PW26 Inspector Raj Kumar is the main investigating officer of this case.

35. PW28 Sh Naresh Kumar, Senior Scientific Assistant of Biology Division of FSL Rohini had examined some exhibits of this case vide his reports Ex. PW28/A and Ex. PW28/B.

36. PW29 SI Vijay Kumar Singh had gone to Kolkata on 28.04.2008 on receiving a wireless message regarding the arrest of the accused no. 2 in the above theft case and his involvement in this case and he had obtained a copy of the above disclosure statement Ex. PW21/A of the accused and had brought the accused to Delhi on transit remand vide order Ex. PW25/A of the concerned Ld ACMM.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

37. PW30 Sh Deepak, Assistant Nodal Officer, Vodafone had brought on record the call detail record, Cell ID Chart, application form and ID document etc of the above mobile no. 9999699391 of accused no. 2 as Ex. PW30/A, Ex. PW30/B and Ex. PW30/C respectively and also a certificate U/S 65 (b) of the Evidence Act regarding correctness of the record as Ex. PW30/F.

38. PW31 Sh Sanjay Kumar Jain was posted as Additional DCP of District South East, Delhi at the relevant time and he had given the sanction Ex. PW31/A U/S 39 of the Arms Act.

39. After the conclusion of the prosecution evidence, all the incriminating evidence brought on record was put to the accused persons and the same was denied by them to be incorrect. Though, the accused no. 1 has admitted his employment under the deceased in the business of money lending for procuring customers for the same and had also admitted that she was provided one Sim No. 9990438076 by the deceased in connection with the above employment needs, but she has denied having any knowledge regarding the cable business of the deceased or the visiting of his office situated at Okhla at around 3 PM on the day of incident. She has also denied that she had gone with the deceased on his motorcycle on the above date and time and has claimed herself to be innocent and to have been SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

falsely implicated in this case. She has also claimed that at the relevant time of alleged incident she was at her dever' s house at Govindpuri in connection with some chit, of which both the deceased as well as the accused no. 2 were members. She has further claimed that she was picked up by the police and was kept in illegal confinement from 11.02.2008 to 14.02.2008 and in the above period she was brutally beaten up and forced to confess the crime and to sign some documents.

40. The accused no. 2 has also claimed himself to be innocent and to have been falsely implicated in this case by the Kolkata police in collision with the Delhi police. He has also denied the making of any disclosure statement leading to the recovery of any arm or ammunition at his instance or even knowing the co-accused no. 3 and 4. Similarly, the accused no. 3 and 4 have also denied the recovery of any arm or ammunition from their possession or at their instance.

41. Though, the accused no. 2 had chosen not to lead any defence evidence, but the remaining three accused persons had chosen to lead the same. The accused no. 1 had examined on record her mother Smt Sushila Devi as her defence witness (inadvertently this witness is not numbered) who has claimed that she and the above accused had gone to the area of Okhla Phase-I at about 5 PM on SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

10.02.2008 to purchase some clothes. The accused no. 4 has has also examined on record three witness, i.e. DW1 Sh Raj Kumar Sharma, DW3 W/Ct. Poonam and DW4 SI D.K. Tejwan in his defence. DW Sh Raj Kumar Sharma is a neighbour of the above accused and he is a witness who denies the arrest of the above accused from his residence on 08.05.2008. DW3 W/Ct. Poonam and DW4 SI D.K.Tejwan are both the witnesses of some record pertaining to a call made to PCR by the wife of the above accused regarding the lifting of her husband by some persons in the evening of 06.05.2008. However, no defence evidence was subsequently led on behalf accused no. 3 Madan Lal Pandey.

42. I have heard the arguments advanced by Sh R.K. Gurjar, Ld Additional PP for the State, Sh Jitender Tyagi Ld counsel for accused no. 1 Praveen @ Partima, Sh Ravinder Narayan, Ld counsel for accused no. 2 Naushad, Sh S.K.Saxena, Ld Amicus Curiae for accused no. 3 Madan Lal Pandey and Sh Vikas Sharma, Ld counsel for accused no. 4 Nanak Chand Gupta. I have also carefully appreciated the evidence led on record and the other record of the case.

43. The five golden principles constituting the proof of a case based on circumstantial evidence have been laid down, explained and reiterated in a number of cases by SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the Hon' b le Supreme Court as well as by different Hon ' b le High Courts. These five golden principles are as follows:-

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

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 due 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.

44. The above five golden principles have been described to be the " panchsheel " of the proof of a case based on circumstantial evidence. It is thus well settled that where the case of the prosecution is based on circumstantial evidence alone to prove the guilt, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubts and the facts and circumstances should not only be consistent with the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

guilt of the accused, but they must be such in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis, consistent with the innocence of the accused.

45. In the case of State Vs Hari Mohan (2000) 8 SCC 598, the following observations were made by the Hon' b le Supreme Court:

This Court has consistently held that when the evidence against the accused particularly when he is charged with grave offence like murder, consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty ; not fantastic possibilities, nor free inferences, but rational deductions which reasonable minds make from the probative force of facts and circumstances.

46. The decision of the Hon' b le Supreme Court in case of Aftab Ahmad Ansari Vs State of Uttranchal (2010) 2 SCC 583 is also a timely reminder of the above mentioned requirements in the following words:

" In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/ themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. "

47. The evidence of the prosecution in this case can be analysed and appreciated broadly under the following heads:

Last seen evidence of PW7 Sh Bahadur Singh against accused No. 1 and 2.

48. Before appreciating the other evidence of the prosecution, first the testimony of PW7 Sh Bahadur Singh is required to be appreciated because he is stated to be a ' chance witness ' of this case and his depositions are relevant qua the accused no. 1 and 2 as he claims to SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

have lastly seen the deceased in the company of the above two accused between 5.30/6.00 PM on 10.02.2008, i.e. sometime prior to the time when the murder of the deceased had taken place.

49. The law with regard to the admissibility or relevance of the statement of a chance witness is now well settled and a chance witness is a person who happens to see an event by coincidence or chance and the evidence of such a witness cannot be whittled down or discarded unless it is otherwise assailable or incredible. However, it is also settled that the evidence of such a witness has to be carefully scrutinized so as to ascertain therefrom as to whether he had witnessed the crime or the occurrence infact or he is merely a witness planted by the police to strengthen their case.

50. When the statement of this witness is tested on the above touch stones, it transpires that his presence at the spot at the relevant time is highly doubtful and the same is not free from doubts and there is every possibility that he has been subsequently planted by the police to strengthen their case against the accused persons. The above inference becomes certain when the depositions made by this witness are examined in the light of the conduct of the witness and the other SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

attending circumstances.

51. He has stated on record that he was working with a contractor and doing the work of fixing tiles and stone pieces in a factory at C-42, Okhla Phase I and he claims that on 10.02.2008 at about 5 PM he had come out of his factory after finishing day ' s work and he was present on the bus stop near the Airtel office and he had met one other person named Ashok, who was already known to him and used to be in the same job, at the said bus stop. As per this witness both of them while talking to each other had entered the nearby park and had gone to sit on a marble seat affixed in the park. The deceased Chanderbhan, who was already known to this witness, was also present in the park at that time and was sitting at a distance of 8-10 feet from this witness and one lady and other boy of dark complexion, who were not known to this witness, were also there alongwith the deceased Chanderbhan and they all were talking to each other and as per this witness he as well as the above Sh Ashok had both come out of the park and had gone to their respective houses after having some conversation while the deceased and the above lady and the other person were still there in the park and talking to each other. He has also identified the accused no. 1 & 2 Praveen @ Partima and Naushad to be the above two persons who were seen by him in the company of the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

deceased at the above time. He also claims that on 17.02.2008 he was called by the SHO in PS Okhla and he had identified the above lady accused in the PS, but he had seen the accused no. 2 only in the court after the above incident.

52. During his cross examination the witness has stated that he had reached the above bus stop sometime between 5.15/5.30 PM and they had entered the park at around 5.30 PM and left the same at about 6 PM. He has also stated that his statement in this case was recorded first only on 17.02.2008. Though he also claims that when he was going to his office in the morning of 11.02.2008 and had reached the above bus stop he had noticed some crowd gathered inside the park and after entering the park he had seen the dead body of the deceased Chanderbhan lying there and he had told the police that the deceased was seen hail and hearty by him yesterday, however, he was not sure whether his statement was recorded by the police on 11.02.2008 or not.

53. As per the claim made by this witness he was working with a contractor in the above factory at C-42, Okhla Phase I and during his cross examination it has also come on record that he had worked in the above factory only for about 1 month and 10 days and SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

thereafter he had left the above job/ factory. However, the IO/PW26 during the investigation had not collected any document or record from the above factory to show the employment or working of this witness in the said factory on the relevant day of incident of this case, which could have justified the presence of the witness near the place of incident. Though the IO/PW26 during his cross examination was also suggested that on 10.02.2008 it was Sunday, but he has expressed his ignorance about the same. However, on checking the calender of the said year, it has been found to be correct that the date 10.02.2008 fell on a Sunday and this fact also seriously affects the credibility of the claim being made by this witness regarding his being on work on that day as Sunday usually remains a holiday or off day even in private factories.

54. Again it is strange that instead of catching a bus from the bus stop and going to his house at Harsh Vihar, Meethapur, Badarpur, New Delhi, this witness had entered the abovesaid park with the above Sh Ashok while having some general conversation as there is nothing on record that there was anything important to be discussed between them, which could not have been discussed at the above bus stop but in the above park. The duration of their above conversation is also stated by this witness to be 10-15 minutes only and if his depositions are SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

believed, it appears that they had been shown to have entered the park just for seeing the deceased in the company of the above two accused. Moreover, the name of the above Sh Ashok, with whom the witness is alleged to have entered the above park, has come on record only during his statement made in this court and in his previous statement dated 11.02.2008 U/S 161 Cr.P.C the above name was nowhere stated to the police or recorded in the said statement and instead of the same only ' Rajmistry ' is found to be stated/recorded and this fact is clearly admitted by the witness during his cross examination. Hence, the non mentioning of the above name by this witness in his previous statement is another material circumstance which raises doubts regarding the claims being made by this witness regarding his seeing the deceased in the company of the above two accused persons on the above day and time.

55. Further, in his statement made in this court this witness has also stated that the above Ashok was residing in Sangam Vihar as a tenant at that time, but the IO had not made any enquiries from him regarding the name or address of the above Sh Ashok and there is no justification furnished on record by the prosecution as to why the same were not made by the IO and no sincere efforts were made to make the above Sh Ashok to be a witness in this case. It is also strange that as per SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the claim made by this witness he had met the above Sh Ashok at the above bus stop only after a gap of 1/1½ years and had never met or seen him again and he had also never visited the house of above Sh Ashok. The above depositions also suggest that the above Sh Ashok is a fictitious name introduced by the witness to justify his alleged visit in the above park at the relevant time, in collusion with or at the instance of the police.

56. Further, there are also some material contradictions in the story of the prosecution as to when and how this witness had met the police and the date on which his statement was recorded. As per the depositions made by this witness when he was going to his office in the morning on the next day, i.e on 11.02.2008, and had reached the above bus stop he had found many persons gathered there inside the park and after entering the park he had seen the dead body of the deceased and had told the police that the deceased was seen hail and hearty by him yesterday. Though this witness has stated that he is not aware if his statement was recorded by the police on 11.02.2008, but he has also stated in clear terms that his first statement was recorded only on 17.02.2008 in the PS and even in his chief examination he only talks of meeting with the police on 17.02.2008 after 10.02.2008. Neither in his SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

chief examination nor in his cross examination he claims to have met the police or the IO/PW26 in the evening of 11.02.2008.

57. However, the IO/PW26 during his cross examination was specifically questioned in questionnaire form by Ld defence counsel representing the accused no. 1 as to where he had found the witness Sh Bahadur Singh (PW7) and the reply of the IO was that on 11.02.2008 he had again visited the spot in the evening at about 5.30 PM for investigation purposes and the above witness was found passing through the outside gate of the park with one of his colleagues, who was also a Mason. On being further questioned by the Ld defence counsel as to how he had come to know that PW7 was present at the spot on 10.02.2008, the IO/PW26 has replied that during investigation on 11.02.2008 he was enquiring each and every person found in and outside the park in search of a probable eye witness. The above depositions made by a material witness of the prosecution story, i.e. the IO/PW26 himself, and the above material contradictions in the prosecution evidence raise serious doubts regarding the trustworthiness and reliability of the claim being made by PW7 regarding seeing the deceased in the company of the above two accused on the above date and time.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

58. Further, admittedly, PW7 Sh Bahadur Singh was known to the deceased and that is why he has been brought as a witness of the last seen fact. Though in his cross examination he had tried to conceal his familiarity with the other members of the family of the deceased and has initially stated that he did not know any other member of the family of the deceased, but subsequently he has gone on record to admit that he was known to the father of the deceased also and he has not only told the name of the father of the deceased, but has also stated specifically that he had met with the father of the deceased several times. This fact also makes the impartiality of the witness to be seriously doubtful.

59. In view of the above discussion, it is clear that the above witness does not appear to be a natural witness of the incident or to be a reliable witness and there is very possibility that he has just been introduced into the prosecution story to strengthen the same and hence, his depositions are liable to be discarded and the evidence of the prosecution has to be appreciated as if the above witness was never there or examined on record.

Statements of family members of the deceased, SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

including the ' last seen ' evidence of wife of deceased qua the accused no. 1.

60. Apart from the testimony of above PW7 Sh Bahadur Singh, the next incriminating circumstance against the accused no. 1 is the evidence in the form of the statements made by the family members of the deceased, i.e. the complainant/PW1 Sh Suresh and PW2 Sh Vishnu, who both are the brothers of the deceased, PW3 Smt Rachna who is the wife of the deceased and PW4 Sh Kishan Singh who is the father of the deceased. However, on careful scrutiny of their testimonies it is found that it is only PW3 Smt Rachna whose testimony is infact relevant as she claims to have lastly seen her deceased husband going with the accused no. 1 at about 3.30/04.00 PM on the day of incident. Though the complainant/PW1, PW2 as well as PW4 also depose about the going of the deceased with the accused no. 1 on the day of incident or being informed by PW3 Smt Rachna in this regard, but none of them has specifically claimed that he had himself seen the deceased taking the accused no. 1 on his above motorcycle and their source of the above depositions is only the information in this regard which was subsequently conveyed to them by PW3 Smt Rachna. Hence, the depositions made by the complainant/PW1, PW2 and PW 4 are not directly incriminating against the accused, but they can be used as corroborative evidence to the depositions SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

made by PW3 Smt Rachna in this regard, if the same are found to be credible or trustworthy.

61. PW3 Smt Rachna in her statement made in this court has stated that on 10.2.2008, at about 2 PM when she was at her parents house in the area of Paharganj, her husband late Sh Chanderbhan had received a phone call from Bobby (accused no. 1) and she informed her late husband that one person shall reach the office of her husband to pay back a sum of Rs 1,30,000/-. She has also stated that her husband came to his Cable TV office in Okhla by his motorcycle and he dropped her at the Cable TV office while saying her to go to his parents house and he himself had proceeded towards Okhla with Bobby who was waiting at the above office. She has further stated on record that after reaching her in laws house, she alongwith her children and brother-in-law, had gone to see the Surajkund Mela and had reached her home, i.e at Pul Prahlad Pur, New Delhi, only at around 11 PM. Her husband had not reached home even by that time and then she had telephonically contacted her brother-in-law Sh Suresh/complainant/PW1 and had informed him about the same and she also continued trying to contact her husband on his mobile phone uptill 4 AM, but there was no response despite constant ringing and at about 8 AM she had received a call from the complainant/PW1 regarding the information received from the police officials that SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the motorcycle of her husband was lying parked outside the DDA Park, Okhla Phase I. After sometime, this witness was informed that her husband had been murdered in the DDA Park.

62. It has been argued by Ld defence counsel representing the accused no. 1 that the depositions made by this witness are against the statement Ex.PW1/A of the complainant/PW1 and the other documentary evidence led on record in the form of call detail record of the mobile phone of accused no. 1 and the deceased, which show the location of the deceased within the area of Paharganj till 2.43 PM and hence, the deceased could not have reached at his above cable office in Okhla from Paharganj by 3 PM, as mentioned in the complaint. This fact makes the claim of this witness regarding going of the deceased with accused no. 1 and the last seen evidence of PW3 to be doubtful. It is also his argument that there is a long gap between the alleged time of murder of the deceased and seeing of the deceased by this witness with the accused no. 1 and hence, her evidence does not reach to any inference that the deceased could have been murdered only by the accused no. 1.

63. PW18 Sh Deepak Kumar is the Nodal Officer of Idea Cellular Limited and he has proved on record the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

call details of three mobile numbers, i.e. Mobile no. 9990438075 and 9718183675 which are stated to be of the deceased and of mobile number 9990438076 which is stated to be of the accused no. 1. PW22 Sh Vijay Kumar Goel has stated on record that the Sim cards of mobile numbers 9990438074, 9990438075 and 9990438076 were sold by him to one Sh Chanderbhan and mobile no. 9990438074 was in the name of Sh Suresh (PW1) and the mobile no. 9990438075 and 9990438076 were taken in the name of Sh Chanderbhan (deceased). This witness has also stated that during investigation the police has obtained from him the photocopies of the application forms and identity documents regarding the above numbers and the same have also been exhibited during his statement as Ex. PW22/A (collectively), which are the application forms in the name of Sh Suresh and Sh Chanderbhan and their identity documents. There is no objection from any of the Ld defence counsels to the exhibition of the above documents and there is also no cross examination of this witness on the above aspect. Hence, the depositions of this witness proves that the Sims of the mobile numbers 9990438075 and 9990438076 were purchased/taken in the name of the deceased Sh Chanderbhan. It is also the case of the prosecution that the Sim of mobile number 9990438076 was given by the deceased to the accused no. 1 and this fact is not disputed by the above accused because even during the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

course of recording of her statement U/S 313 Cr.P.C it has been specifically admitted by the accused no. 1 that the above Sim was provided to her by the deceased in connection with her employment with the deceased.

64. The depositions of PW3 regarding making of a call by the accused no. 1 on the mobile no. 9718183675 of the deceased at around 2 PM when they were in the area of Paharganj are also not challenged and are admitted by the above accused during the recording of her statement U/S 313. The same are also duly corroborated by the call detail record of the above mobile number of the deceased and the mobile number 9990438076 of the accused no. 1 as two calls from the above mobile number of the accused no. 1 have been received on the above mobile number of the deceased at around 2.10 PM and 2.18 PM. As per the depositions of PW18 and the Cell ID Location Chart Ex. PW18/B, the above mobile number of the deceased at that time was within the area of Tower No. 1598, which falls in the Paharganj Area. The location of the above mobile phone of the deceased had remained in the above area till 2.43 PM and thereafter another call has been received from the above mobile of the accused no. 1 at the mobile of the deceased at about 3.30 PM when the cell phone of the deceased was in the Okhla Industrial Area, Phase-II in the range of Tower No. 1148.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

65. As per the depositions made by PW3 during her cross examination she alongwith the deceased had reached the Okhla office at around 3.30/3.45 PM and accused Bobby was found waiting on the road outside the office at that time and it is at this time PW3 claims to have seen the accused no. 1 going with the deceased on his motorcycle. There is also another call received on the mobile of the deceased from the mobile of the above accused at about 3.41 PM and at this point of time the location of the mobile of the deceased is within the range of Tower No. 1017 of Tuglakabad Extension and the deceased had also called the above accused at 3.45 PM from within the range of Tower No. 1106 installed in Tuglakabad Extension-II. The location of the mobile phone of the accused no. 1 at 3.30 PM, 3.41 PM and 3.45 PM as per the above Cell ID Location Chart Ex. PW18/B is Tuglakabad Extension-II, Tuglakabad Extension and Tuglakabad Extension-II respectively and it is clear from the above record that the accused no. 1 and the deceased were within the range of the same or nearby towers at around 3.40/3.45 PM.

66. However, now it is to be seen whether the depositions being made by PW3 Smt Rachna regarding seeing them together are actually trustworthy or not. As already stated above, there is no specific claim made by any other family member of the deceased that they had SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

seen them together at around the above time. Though PW3 claims to have seen them together at the above time, but it is found that her conduct and the conduct of her other family members raise serious doubts regarding her above claim because though the dead body of the deceased was recovered at around 7 AM on 11.02.2008 and the FIR of this case was registered on the statement made by the brother of the deceased namely PW1 Sh Suresh Kumar subsequent to that, but the name of the accused no. 1 is not found mentioned or recorded in the above statement Ex. PW1/G of the complainant or in the FIR. This is so despite the fact that PW3 Smt Rachna as well as the complainant/PW1 have both claimed that the above fact of seeing of the accused no. 1 going with the deceased by her was told by PW3 to the complainant/PW1 in the night of 10.02.2008 itself. The complainant/PW1 has also specifically stated that PW3 had given him a call at around 11 PM informing that the deceased had not returned and he was also given the number of the accused no. 1, but he had made a call to accused no. 1 only at around 6 AM on next day. Even PW3 has made similar depositions and it is strange on their parts that none of them or any other family member of the deceased had thought it proper to even call the accused no. 1 throughout the night of 10/11.02.2008 to know about the whereabouts of the deceased though the mobile number of the accused no. 1 was available with them.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

67. Again though they have also claimed to have called the accused no. 1 on her mobile number in the morning of 11.02.2008 at about 06:00 AM, but it is again strange on their part that no finger of suspicion was raised by them towards the accused no. 1 in the statement Ex. PW1/G of the complainant/PW1 which is the basis of this case. It is only found mentioned therein that a lady had called on the above mobile of the deceased at about 3 PM and thereafter the deceased had left, but the name of the accused no. 1 is not found recorded therein and the depositions made by the complainant/PW1 in this court in introducing the name of the above lady as the accused no. 1 are only found to be an improvement and he was rightly confronted in this regard by the Ld defence counsel representing the above accused with his above previous statement Ex. PW1/G. Moreover, it has also been deposed by the complainant/PW1 as well as PW3 that they have called on the above mobile number of the deceased many times during that night and the bell was also ringing and the calls had gone unanswered, but the call detail record Ex. PW18/A of the mobile of the deceased does not corroborate their above depositions as some unanswered calls are shown in the above details only from 07:33 AM onwards on 11.02.2008.

68. Moreover, even if for a moment the depositions SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

and the claim of PW3 regarding seeing the accused no. 1 with the deceased at around 3.30/3.45 PM on 10.02.2008 are believed to be true, the same does not lead to any irresistible conclusion or inference that it is only the above accused who had murdered the deceased. The exact time of the murder of the deceased is not known and as per the prosecution story he was murdered sometime after 6 PM on 10.02.2008 as by that time the above projected witness of last seen namely PW7 Sh Bahadur Singh has claimed to have seen him alive. As per the depositions made by PW13 Dr Adarsh Kumar and PW27 Dr Arvind Kumar and the postmortem report Ex. PW13/A proved by them the time since death of the deceased was 36 to 48 hours and the time of conduction of the postmortem by them is 2 PM on 12.02.2008 and going by the above report also it is not possible to ascertain the exact time of death of the deceased, though it has taken place within the above given timing from the disappearance of the deceased.

69. It cannot be forgotten that the deceased was a healthy male person and the accused no. 1 is a female and there is also found to be a long gap between the alleged seeing of the deceased in the company of accused no. 1 and the alleged estimated time of his murder and it is at least 3 hours. Being a female it could not have been possible for the accused no. 1 to control the movements of the deceased and he was also not found SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

murdered at any closed place or in a house etc. as his dead body was recovered from an open public park. There is every possibility that between the time of his allegedly being seen in the company of the accused no. 1 and his death he might have met some other persons or might have gone to some other places also and hence, it cannot be conclusively held that from the above time till the time of his murder the deceased had remained only in the company of the accused no. 1.

70. After the rejection of the testimony of PW7 Sh Bahadur Singh as a witness, the depositions of PW3 are to be seen as ' last seen ' evidence and are also to be scrutinized accordingly. The law with regard to the ' last seen ' theory is now well settled and though there cannot be any fixed time gap between the point when the deceased was seen alive and was found dead, but it should be so small that there should not be the possibility of the commission of the crime by some other person. However, in any particular case even a long time gap can be justified if it is proved that the place or the deceased was not accessible to any other person, except the accused.

71. In the case of Ramareddy Rajeshkhanna Reddy and Anr. Vs State of Andhra Pradesh AIR 2006, Supreme Court 1656 (1), it was held by the Hon' b le Supreme Court that:

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

" 27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. "

72. In the case of State of Goa Vs Sanjay Thakran and Anr. AND Subhash Chndra Nanda Vs Sanjay Thakran and Anr. AIR 2007, SC (Supp) 61 also the following propositions of law were laid down by the Hon' b le Supreme Court:

" 29. 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 be 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 SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

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 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 of 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. "

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

" 30. ............. We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A-2 played any role in assisting him to murder D-1. Even if we believe the evidence of PW-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes, there has been a gap of about 2¼ hours when A-1 and D- were last seen together and when the dead body of D-1 was found at around 00.30 AM at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected. "

73. In the case of Naval Kishore Vs State, 189 (2012) DLT 89 (DB) also, while relying upon the propositions of law as laid down by the Hon' b le Supreme Court in the abovesaid cases, the Hon' b le Delhi High Court has not found the last seen evidence of the witnesses against the accused to be convincing enough and had discarded the same as the name of the accused/suspect was not included in the missing report of the deceased or in the statement of the complainant, which was the basis of the FIR and further as there were also some inconsistencies and SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

discrepancies in the statements of the witnesses of the last seen fact.

74. In view of the above discussion, the testimony of PW3 Smt Rachna on the last seen theory is bound to be discarded and the same cannot be considered as incriminating against the above accused no. 1.

The location of mobile phone of the deceased and the accused no. 1 after they were seen together by PW3.

75. The next incriminating circumstance being relied upon by the prosecution is that as per the depositions of PW18 Sh Deepak Kumar and the Cell ID Chart Ex. PW18/B brought by him on record, both the above mobile phones of the deceased and the accused no. 1 had remained within the nearby towers after they were last seen together by PW3. As per the depositions of the above witness and the record proved by him, the location of the mobile phone of the deceased from 4.11 PM to 5.02 PM has been recorded within the Tower No. 1086 in the area of Kalkaji Extension and thereafter there is no record of location of his mobile on that day and the location of the mobile phone of accused no. 1 at 4.14 PM is also shown in the range of the same tower. As per the record the mobile of the accused no. 1 was found to be switched off/not traceable between 4.38 PM to 4.46 PM, but its location at SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

5.03 PM, 5.24 PM, 5.29 PM and 5.56 PM to 6.08 PM was within the range of Tower No. 1017 at Tuglakabad Extension, 1217 at Tekhand Village, 6502 at Tuglakabad Village and 1217 at Tekhand Village respectively.

76. Since there is no record of the location of the mobile of the deceased after 5.02 PM on that day, as stated above, the location of the said mobile at or around 6 PM cannot be ascertained. However, as per the above record, though both the deceased and the accused no. 1 were under the same Tower No. 1086 at Kalkaji Extension at around 4.14 PM, but thereafter at 5.03 PM the location of the mobile of the accused no. 1 was within the Tower No. 1017 at Tuglakabad Extension whereas at 5.02 PM the mobile of the deceased was still within the range of Tower NO. 1086 at Kalkaji Extension.

77. No evidence has been brought on record by the prosecution to show the distance between the above different towers of the above service provider and in the absence of that it is not possible to arrive at any conclusion with regard to the deceased and the accused no. 1 being together at any particular place or at any particular time. Even otherwise, even if their mobile phones are found to be within the range of same tower at any particular time there may still be a possibility that they were actually not present together at the same place SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

and were at a considerable distance. Contrary to the above, it may also be possible that even though they both were together at any particular place but still there may be a possibility that their mobile phones are within the range of two different towers and hence the above electronic evidence produced by the prosecution on record cannot be considered to be convincing or incriminating enough to fix the culpability of the accused no. 1 for commission of the murder of the deceased. Moreover, there is no such evidence at or around the time when the murder of the deceased had allegedly taken place.

Motive for commission of the crime

78. As per the prosecution story, the motive which is being attributed to the accused no. 1 for commission of the murder of the deceased is that the deceased was keeping an evil eye on the accused no. 1 and he was forcing her to live with him after leaving her own husband. However, during the investigation of the accused the IO/PW26 had not collected any document or material at all to establish the above motive on the part of the above accused and the alleged motive, if any, being attributed to the above accused is only on the basis of her alleged disclosure statement Ex. PW9/C, which is not admissible in evidence. The judgment in case of Naval Kishore (Supra) of our own High Court is also relevant on SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the aspect of motive, wherein their lordships have made the following observations:

" 20. Normally, there is a motive behind every criminal act which is why the investigating agency and the Court, while examining complicity of an accused try to ascertain as to what was the motive on his part, to commit the crime. In a case which is based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. The investigating agency is expected to ascertain as far as possible what was the immediate impelling motive on the part of the accused, which led him to commit the crime in question. "

Identity of accused no. 1 by PW7 Sh Bahadur Singh

79. Though as per the prosecution story the accused no. 1 was also identified by PW7 Sh Bahadur Singh in the PS and PW7 has also made specific depositions during his examination in chief itself about the identification of the above accused by him on 17.02.2008, but as discussed above, the testimony of PW7 Sh Bahadur Singh has already been discarded and hence the alleged identification of the above accused, if any, made by him is worthless and cannot be considered for any purposes. Even otherwise, the above identification made in the PS could not have been legally acceptable in evidence.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

Recovery of weapon of offence

80. The murder of the deceased Chanderbhan in this case was committed with a fire arm and one empty cartridge of 8 MM KF was also found near the dead body of the deceased, alongwith a broken helmet. At the time of postmortem of the deceased total two bullets were recovered, i.e. one from the body of the deceased and the other from the jacket of the deceased. During investigation of the case the IO/PW26 had also seized one country made pistol and two live cartridges vide seizure memo Ex. PW15/F and the sketch of the above country made pistol and the live cartridges has been proved on record as Ex. PW15/E and the above country made pistol/katta has been identified during the trial as Ex. PW15/P1 and the two cartridges as Ex. P2 collectively and the empty cartridge recovered from the spot has also been identified as Ex. P3.

81. The above katta, empty cartridge and the two live cartridges recovered in the case were tested vide the FSL report Ex. PW26/E, which is per-se admissible in evidence under the provisions of Section 293 Cr.P.C., and as per the said report the above empty cartridge was fired from the above katta and the two live cartridges were also of the same description as that of the empty cartridge and they all could have been fired from the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

above katta and the katta and the cartridges fell within the definition of arms and ammunition under the Arms Act.

82. However, it is not the case of the prosecution that the recovery of the above arm and ammunition was effected from the possession of or at the instance of the accused no. 1 and rather the same is alleged to have been effected in pursuance of the disclosure statements made by the accused no. 2 and 3 and from the possession of the accused no. 4. As stated above, the accused no. 2 was not immediately arrested in this case and he is alleged to have been arrested in a case of theft at Kolkata and was subsequently brought to Delhi. As per the depositions made by PW21 SI Raju Das of the Kolkata Police, the above accused was arrested in case no. 64/08 U/S 380 IPC of PS Burra Bazar, Kolkata on 06.05.2008, but no record or document of the above accused has been brought on record of this court. The above accused is also being alleged to have made some disclosure statement exhibited as Ex. PW21/A in this court, but the same is also found to be a photocopy only and is not admissible in evidence and cannot be considered for any purposes.

83. The above accused was brought from Kolkata to Delhi by PW29 SI Vijay Kumar Singh of Delhi Police on SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

transit remand. However, the material investigation qua the above accused is alleged to have been conducted by the main IO/Inspector Raj Kumar/PW26 himself as he claims to have recorded the disclosure statement Ex. PW15/A of the above accused dated 08.05.2008. It is in this disclosure statement that the accused no. 2 is stated to have confessed his guilt and involvement in this case, alongwith one other associate Sanu, and also to have further disclosed that the weapon of offence and the two live cartridges were kept by him and the above Sanu with accused no. 3. It is also the case of the prosecution that then the accused no. 2 had led the police party to C Lal Chowk, Govindpuri and had got arrested the accused no. 3 Madan Lal Pandey and the accused no. 3 is stated to have made a disclosure statement Ex. PW15/D and had led the police party to the house of accused no. 4 Nanak Chand and had got the above katta and two live cartridges recovered on the same day.

84. However, when the evidence led on record on this aspect is carefully scrutinized, there are found to be material inconsistencies and discrepancies in the same and contradictions in the statements of the relevant witnesses and the same do not appear to be trustworthy or capable of being acted upon. As stated above, no document or record pertaining to the above theft case of Kolkata has been brought on record by the prosecution.

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

Though one transit remand order of the court of the concerned Ld ACMM Kolkata is on record and is Mark A, but there is no arrest memo or personal search memo of accused no. 2 in this case, either prepared by PW29 SI Vijay Kumar Singh or the main IO/PW26 Inspector Raj Kumar. Again the evidence with regard to the apprehension of the accused no. 3 and 4 and the recovery of the above weapon is also found not to be inspiring any confidence.

85. Besides the IO/PW26 Inspector Raj Kumar, PW15 Ct. Siya Ram and PW23 HC Rajpal are the other two police witnesses who have participated in the above investigation leading to the arrest of the above two accused and the recovery of the above arm and ammunition, allegedly at the instance of accused no. 2. PW15 Ct. Siya Ram in his statement made in this court has specifically stated that the disclosure statement of the accused no. 2 was not recorded by the IO in his presence, though the same was bearing his signatures, but contrary to his claim PW23 has stated that PW15 was also present when the same was recorded. The residential address of the accused no. 3 was not disclosed in the above disclosure statement of the accused no. 2, but even then PW15 has stated that the house of accused no. 3 was situated in a residential colony and there was also a market nearby. When the police party had come to SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

know the residential address of the accused no. 3, this court fails to understand as to where was the necessity of waiting by the police party in the park of the C Lal Chowk for the arrival of the accused no. 3 there for his apprehension because as per the statements made by the above witnesses they were waiting there for the arrival of the above accused.

86. There are also material contradictions in the statements of the prosecution witnesses with regard to the timings of the arrest of the accused no. 3 and 4 as according to PW15 when the accused no. 3 was arrested it was a noon time, whereas PW23 in his examination in chief has stated the same to be evening time. Contrary to the above, PW23 in his cross examination went on to state the above time to be 10.10 PM and then the IO/PW26 has stated this time to be about 10 PM. Though some public persons were available around the above place of apprehension of the above accused, but admittedly no effort was made to join any of them to witness the arrest of the above accused. There are also contradictions regarding the duration for which the police party had waited there for the arrival of the above accused because as per PW15 the accused no. 3 had reached there within half an hour, but PW23 states that they had waited there for the arrival of the above accused for about 2.30 hours. None of the members of SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the above police team has been able to tell the registration number or other details etc. of the private car by which they had gone to arrest the above two accused. The IO/PW26 has also not collected any evidence to show that the accused no. 3 was in fact a friend of accused no. 2 or was even known to him, which could have corroborated the case of the prosecution and could have been a ground for keeping the above arm and ammunition by the accused no. 2 with the accused no. 3 without any consideration. The evidence of the above prosecution witnesses regarding the time of apprehension of the accused no. 4 was bound to be contradictory, in view of their above contrary depositions regarding the time of apprehension of the accused no. 3.

87. Again there is one other aspect which raises serious doubts regarding the claim of the police officials regarding the apprehension of the accused no. 4 at the given time and the recovery of the above arm and ammunition from him. It is the case of the accused no. 4 that he was infact picked up by the police on 06.05.2008 and was not arrested on 08.05.2008. Three defence witnesses, i.e. DW1 Sh Raj Kumar Sharma, DW3 W.Ct. Poonam and DW4 SI D.K.Tejwan have also been examined by the above accused in his defence on the above aspect and though the depositions of DW Sh Raj Kumar Sharma are not found to be convincing enough, but SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the depositions made by other two defence witnesses and the documents proved on record during their statements give a severe dent to the credibility of the prosecution story on this aspect.

88. It transpires from the statements of the above defence witnesses that the wife of the accused no. 4 had given a call to the PCR at 100 number at about 8.50 PM on 06.05.2008 to the effect that her husband was taken away by 4-5 persons from outside the Gali No. 16, near Durga Mandir Sabji Market, Govindpuri and the above call was recorded at the PS vide DD No. 26 Ex. DW4/A. Though an enquiry regarding the above call was conducted by one ASI Om Prakash, but as per the contents of DD No. 11 Ex. DW4/B dated 07.05.2008 the same remained pending and no trace of accused no. 4 was found till the recording of the above DD and the previous DD No. 26 was kept pending.

89. Though the defence has not brought on record any evidence regarding the final fate of the above enquiry, but the above defence evidence led on behalf of the accused no. 4 gives a serious blow to the case of the prosecution regarding his arrest and the recovery of the above arm and ammunition from his possession on the evening of 08.05.2008 as the same is sufficient to make the prosecution evidence on this aspect to be highly SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

doubtful. In view of the above, the evidence led by the prosecution on record regarding the recovery of the above arm and ammunition from the possession of accused no. 4 or at the instance of accused no. 3 and in pursuance of the disclosures made by the accused no. 2 cannot be believed and is liable to be discarded.

Refusal of judicial TIP by accused no. 2

90. Apart from the alleged recovery of the above weapon of offence at the instance of the accused no. 2, the other incriminating substance relied upon by the prosecution against the above accused is that he had refused to join his judicial TIP proceedings. According to the evidence led on record the accused no. 2 had refused to join the above proceedings on 12.06.2008 on the application Ex. PW24/B moved by the IO and the above proceedings have been proved on record as Ex. PW24/A (collectively). Though the name of any witness is not mentioned in the TIP application Ex. PW24/B, but the TIP of the accused was to be got conducted from PW7 Sh Bahadur Singh only, since he is the only witness who had claimed to have seen the above accused with the deceased, and as per the TIP proceedings Ex. PW24/A the accused had refused to join the proceedings on the ground that the police had already shown him to the witnesses at the PS. PW7 during his cross examination SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

has though denied the making of any statement regarding the seeing of a photograph of the above accused in the PS, but he was rightly confronted by Ld defence counsel with his previous statement Ex. PW7/DA dated 17.02.2008 in which he had stated that he was shown a photograph of accused no. 2 in the PS on that day and he had also identified him and hence the conduction of the above judicial proceedings of the above accused could not have served any purpose at all. Moreover, as already discussed in detail above, the testimony of PW7 has already been discarded by this court and hence, even the identification of this accused by him in any proceedings could not have been made to be a ground for conviction of the above accused.

Call detail record of conversation between accused no. 1 and accused no. 2.

91. Though as per the call detail records Ex. PW18/A and Ex. PW30/D and the other evidence produced on record by the prosecution, it is found that the mobile number 9999699391 was of the accused no. 2 and he was also in constant touch with the accused no. 1 on the day of commission of the alleged offence, i.e. 10.02.2008, but in the absence of there being any other convincing and acceptable evidence showing the involvement of accused no. 2 in commission of the murder of the deceased, the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

record of the alleged conversation between the above two accused, in the absence of the contents of their above conversation, cannot be considered incriminating enough against the above accused to hold him guilty and to convict him for the abovesaid offence.

Absconding of the accused no. 2.

92. It is also the case of the prosecution that after commission of the murder of the deceased, the accused no. 2 had absconded to his native state of Kolkata and this fact is corroborated from the depositions made by PW30 Sh Deepak, Nodal Officer of M/S Vodafone, as the mobile phone of the above accused was either switched off or not reachable on 11.02.2008, i.e. on the next day of commission of the offence, and on 12.02.2008 the same was found in some roaming area. However, it is now well settled that no presumption of guilt of an accused can be drawn merely by his conduct of absconding and one can be convicted for any offence only when there is some substantive evidence for proving his guilt for the said offence beyond reasonable doubts.

Location of the mobile of accused no. 2 at or around the commission of the offence.

93. It is pointed out by Ld Additional PP for the SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

State that according to the depositions made by PW30 and the Cell Location Chart Ex. PW30/E, the location of the above mobile phone of the accused no. 2 was also found in the vicinity of the area of commission of the murder of the deceased. It is observed on appreciation of the evidence that according to PW30, the location of the mobile of the accused no. 1 on 10.02.2008 from 3.46 PM to 4.14 PM was within the tower installed at Tuglakabad Extension, from 4.58 PM to 5.40 PM it was in the area of Okhla Phase I and at 6.08 PM it was in the area of Anand Mai Marg. Since, PW30 has also stated that he cannot tell the inter-se distance between different towers, it is very difficult to ascertain the exact location of the above accused at any particular time or at around the time of commission of the offence. Moreover, as discussed above, in the absence of there being any acceptable evidence of last seen, this type of evidence cannot be accepted and cannot be made the basis for holding an accused guilty as the same is not sufficient to fix his culpability beyond reasonable doubts.

94. Ld defence counsel representing the above accused has rightly relied upon a recent judgment of our own High Court in case Rohit Dhingra & Anr. Vs State 2012 (1) C.C.Cases (HC) 518 wherein the following observations were made:

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

" It was therefore, deduced that the prosecution had proved the possibility of their being near the crime scene between 8.30 and 10.00 PM on the night of the incident i.e. 10.01.2008. The inference drawn on the basis of mobile tower details in the documents (Ex. PW16/C and Ex. PW-16/D) could not have been held against them. That someone could have been present in the vicinity of scene of crime is a matter of probability. However, for the Court to conclude that he was actually present, the prosecution had to establish - by application of the only relevant rule of evidence in this case i.e. that only the accused and none else was present at the scene of crime. In other words, in the absence of positive material proving beyond reasonable doubt that the accused was at the scene of occurrence, the Trial Court could not have concluded that the appellants were so present in this case and then shifted the burden (not merely the onus) of proving that they were not at that place at the time when offence was committed. "

95. Besides the above, there are also some other lacunas and discrepancies in the prosecution evidence which help this court in acquittal of the accused persons for the offences charged against them. The prosecution story is found to be contrary with regard to SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

the number of the offenders who had actually participated in the commission of the offence of the murder of the deceased because on the basis of the disclosure statement made by accused no. 1, it was projected that the crime was committed by the accused no. 1 and 2 only. Even in the disclosure statement Ex. PW21/A made by accused no. 2 at Kolkata, the involvement of only above two accused was shown. However, subsequently on the basis of the disclosure statement Ex. PW15/A of the accused no. 2 recorded by the Delhi Police it was projected that besides the above two accused one other accused namely Sanu had also participated in the actual commission of the crime and instead of two total four shots were fired by them and two out of these had gone to hit the accused. There is no corroborative evidence to the above and the above story had only remained in the disclosure statements of the accused only.

96. Again though a charge for commission of the offence punishable U/S 27 of the Arms Act relating to use of the above katta was also framed against the accused no. 2 and further a charge for the offence punishable U/S 25 of the Arms Act was framed against each of the accused no. 3 and 4, but the depositions made by PW31 Sh Sanjay Kumar Jain, the then Additional DCP and the sanction U/S 39 of the Arms Act Ex. PW31/A SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

proved by him pertain only to the accused no. 4 Nanak Chand Gupta and it appears that no sanction under the abovesaid section has been taken for prosecution of the accused no. 2 Naushad and accused no. 3 Madan Lal Pandey for the offences allegedly committed by them under the said Act. Hence, they both could not even have been prosecuted, what to say of being tried, for the said offences under the Arms Act.

97. Therefore, in view of the above discussion, it is held that the circumstantial evidence led by the prosecution on record regarding the murder of the deceased by the accused no. 1 and 2 fails to meet the requisite principles, as discussed above, and the same cannot be made to be the basis of conviction of the above accused persons as the same is found not to be making a complete chain of the circumstances leading to any inference about the commission of the said offence by the above two accused persons only, beyond reasonable doubts. The other evidence led on record is also not sufficient to secure the conviction of the accused no. 2 or of the accused no. 3 and 4 for the offences under the Arms Act.

98. It was held by the Hon ' b le Supreme Court in case of Jaharlal Das Vs State of Rissa, 1991 (3) SCC 27:

SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

" .... the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainly and legal proof. It has been indicated by this Court that there is a long mental distance between " may be true " and " must be true " and the same divides conjectures from sure conclusions. "

99. It would also be useful to refer to the observations of the Hon' b le Supreme Court in this regard, in case of Tanviben Pankajkumar Divetia Vs State of Gujrat, (1997) 7 SCC 156:

" We may indicate here that more the suspicious circumstances, more care and caution is required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court. "

100. All the four accused persons are, therefore, acquitted giving benefit of doubt. Accused No. 1 and 2 SC No. 26/08 State Vs Praveen @ Partima @ Bobby & Ors.

are in judicial custody. Jail Superintendent is directed to immediately release them from the custody, if they are not wanted to be detained in any other case. Accused No. 3 and 4 are on bail. Their personal bonds are discharged and their surety bonds are cancelled. Bonds U/S 437A Cr.P.C of all the four accused persons have already been furnished on record.

101. The case property, i.e. the country made pistol/ katta and the above cartridges, be also confiscated and disposed of as per law, after the expiry of the period of limitation for filing of the appeal and subject to the outcome of any appeal to be filed against this judgment, if any. The file be consigned to the record room.

Announced in the open
court on 19.05.2012                               (M.K.NAGPAL)
                                             ASJ/Special Judge NDPS
                                           South & South East District
                                               Saket Court Complex
                                                   New Delhi.




SC No. 26/08                       State Vs Praveen @ Partima @ Bobby & Ors.

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State vs Praveen @ Partima @ Bobby on 19 May, 2012