Delhi District Court
Sc No. 53348/2016 State vs . Govindo @ Nuho @ Chotu Page No. 1 Of 25 on 30 May, 2019
CNR No. DLNW01-005177-2016
FIR No. 71 /16 PS. Kanjhawala
U/s 302/34 IPC
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL
SESSION JUDGE 03 : NORTHWEST : ROHINI : DELHI
In the matter of:
STATE
VERSUS
1. SHASHI SHARMA (JCL)............... (under Trial Before JJB)
S/o Sh. Rajender Sharma
R/o D84 JJ Colony, Sawada,
Delhi
2. GOVINDO @ NUHA @ CHOTU
S/o Sh. Haran Haldar
R/o D107, JJ Colony, Sawada,
Delhi
Date of Institution of the case in Sessions Court : 23.07.2016
Date of conclusion of arguments : 28.05.2019
Date of Judgment : 30.05.2019
JUDGEMENT
1. Brief facts leading to the trial of the accused for offence under Section 302/34 IPC as disclosed in the Chargesheet is that on 10.02.2016, on receipt of DD No. 9B qua lying of a dead body of a person at C527, JJ Colony, Sawada, near Madina Masjid, SI Ashok Kumar along with SHO Inspector Dharambir, Ct. Raj Kumar and other staff reached at the spot C527, JJ Colony, Sawada, Delhi where SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 1 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC they did not find any dead body. However, they found one dibbi (container/box) of Fevicol SR 998 containing some solution and one handkerchief having solution, near the wall of Mosque. On enquiry, they came to know that the dead body had been removed by the family member of the deceased to D128, Sawada, JJ Colony. Accordingly they went to D128, Sawada, JJ Colony and found dead body of a boy lying in the gali. On enquiry name of deceased was revealed as Raja S/o Late Sh. Sushil Kumar, aged 16 years, R/o D128, JJ Colony, Sawada. SI Ashok Kumar. SHO inspected the dead body and found strangulation mark of rope/wire on the neck of deceased. No eyewitness met at the spot and gali. Crime team was called at the spot which inspected the spot and took the photographs of the spot and dead body. SI Ashok Kumar prepared the rukka and got the FIR registered under Section 302 IPC. SI Ashok Kumar prepared the site plan and seized the exhibits from the spot. Dead body of Raja was sent to SGM Hospital, Mangolpuri, Delhi, Mortuary where postmortem of the deceased was got conducted. After postmortem, dead body of the deceased was handed over to the family members of the deceased.
2. During investigation, IO recorded the statement of Suraj, brother of deceased and came to know that one Govindo @ Nuha @ Chotu and one Shashi Sharma were involved in the murder of the deceased. On 11.02.2016, they received secret information that accused Govindo @ Nuha @ Chotu and Shashi Sharma were present in BBlock, JJ Colony, Sawada. On the secret information, IO along with SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 2 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC staff reached there and apprehended both the accused Govindo @ Nuha @ Chotu and Shashi Sharma from BBlock, JJ Colony, Sawada in front of Government School and on enquiry they came to know that both are under 18 years of age. Family members of both the accused persons were called there. Juvenile Welfare Officer (JWO) SI Sapan was also called from the PS and in his presence, SHO made enquiries from both the accused persons who disclosed that they had murdered Raja by strangulating his neck with wire. SHO prepared apprehension memo of both the accused and recorded their statements separately. Both accused persons got recovered a wire from nali (drain) which was used by them in the murder of deceased. The wire was of scooter/motorcycle. IO measured the said wire which was approximately 3.75 feet and kept the same in a plastic box after preparing pullinda of the same.
3. Both JCL pointed out the place of incident i.e. behind the Madina Masjid where they had murdered Raja by strangulating his neck with wire in the intervening night of 9/10.02.2016. Both accused were sent to OHBII and were produced before JJB on next day. IO obtained age proof of both JCL from their school. After taking permission from the concerned court, the bone ossification test was got conducted from the hospital wherein accused Govindo was declared major. IO sent the exhibits to the FSL and obtained subsequent opinion of weapon of offence.
SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 3 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC
4. After completion of investigation charge sheet was filed against both JCL Shashi Sharma before concerned JJB. Subsequently JJB vide its order held that accused Govindo @ Nuho was major on the day of incident and accordingly he along with charge sheet was produced before the concerned Metropolitan Magistrate keeping him in column no. 11.
5. Ld. Metropolitan Magistrate before whom charge sheet was filed took, cognizance of the offense and after compliance with the provision of the Section 207 CrPC committed the case to the session court after which it was assigned to this Court.
6. Prima facie finding case having been made out Ld. Predecessor of this Court was pleased to frame requisite charge against the accused Govindo @ Nuho @ Chotu under Section 302 IPC which was explained to the accused to which he pleaded not guilty and claimed trial. Thereafter, prosecution was asked to substantiate its allegation by examining its witnesses cited in the list of witnesses.
7. In all prosecution examined 21 witnesses out of which PW1, PW12 are brothers and PW2 is the cousin of the deceased, PW9 and PW20 are Doctors, PW10 is Teacher, PW11 is public witness and PW17 is Assistant Ahlmad, JJB1. Rest all are police witnesses. No witness has been examined as PW16.
SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 4 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC 7.1. PW1 and PW2 i.e. brother and cousin of the deceased respectively, had first reached the spot after coming to know that their brother was lying in the gali and they were the one who brought the deceased from the spot to their house and had identified the body in the mortuary and received the same after postmortem.
7.2. PW3 W/Ct proved the DD No. 9B Ex PW3/A vide which information regarding lying of dead body was received and following which SI Ashok and others had gone to the spot.
7.3. PW4 HC Shiv Om the Crime Team photographer proved the photographs Ex PW4/A1 to A9 of the spot and dead body and its negatives Ex PW4/B1 to Ex PW4/B9.
7.4. PW5 HC Bijender proved the FIR Ex PW5/A, endorsement on rukka Ex PW5/B and certificate under section 65B of the Evidence Act Ex PW5/C. 7.5. PW8 Ct. Anil took the wooden box containing viscera to the FSL vide road certificate Ex PW7/C and delivered it to FSL vide acknowledgement receipt Ex PW7/D. 7.6. PW7 HC Rajbeer proved the MHC(M) registered No. 19 and concerned entries vide which case properties were deposited in the Malkhaana and taken out of Malkhaana for subsequent opinion of SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 5 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC doctor and for FSL.
7.7. PW8 Ct Naveen beat constable took rukka from the spot to Police Station and back to the spot after registration of FIR.
7.8. PW9 Dr. Anurag Thakur proved the postmortem report and his subsequent opinion on the weapon of offence.
7.9. PW10 Sh. Devender Kumar, Teacher proved the age of Shashi Sharma vide entry Ex. PW10/A vide which student Shashi Sharma was admitted in Primary School, JJ Sawada, BBlock with admission no. 1117/2007 on 17.11.2007.
7.10. PW11 Sh. Alimuddin is the one who had called the police by dialing 100 and at his instance site plan was prepared.
7.11. PW12 Suraj is the brother of the deceased who had suspected involvement of accused Govindo and Shahsi Sharma and the deceased was last seen by him in the company of the accused persons.
7.12. PW13 Ct. Rajkumar had gone to the spot along with SI Ashok after the receipt of DD No. 9B and is witness to the lifting of blood stained earth control, dibbi of Fevicol, handkerchief from the spot, viscera and clothes of deceased etc. in the wooden box from SGM SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 6 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC Hospital.
7.13. PW14 ASI Begraj is witness to the arrest of the accused persons, their personal search, their disclosure statement and recovery of wire at the instance of the accused persons.
7.14. PW15 Ct Naveen proved the scaled Site Plan Ex PW15/1 prepared by him at the instance of IO.
7.15. PW17 Sh. Pramveer Singh is the Ahlmad of the JJB1 and he brought the entire file of the case in which coaccused JCL was being tried and which file contain many of the original document/record of this case.
7.16. PW18 SI Sapan is the Juvenile Welfare Officer (JWO) who was called to the place of arrest of the accused persons after it was revealed that the apprehended boys were minor. He sought to prove the version of the accused persons recorded, recovery of wire allegedly at the instance of the accused persons and spot pointing out memo.
7.17. PW19 SI Ashok was the one who had received the intimation under DD No.9B and had reached the spot along with other police officials including the SHO and who had done the initial investigation before registration of the FIR, got sent rukka and lifted the dibbi of Fevicol, handkerchief, blood stained earth control, called SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 7 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC the Crime Team at the spot and got the spot inspected and photographed, apart from sending the body of the deceased to SGM Hospital for getting the postmortem done.
7.18. PW20 Dr Abhinav Rathi proved the report Ex PW20/1 regarding medical examination of Govindo for age determination.
7.19. PW21 Ct. Bishan had gone to the spot along with SI Ashok after the receipt of DD No. 9B and is witness to the lifting of blood stained earth control, dibbi of Fevicol, handkerchief from the spot.
7.20. PW22 Inspector Dharamvir Singh is the investigating officer and proved his investigation and report etc.
8. After completion of prosecution evidence, statement of the accused was recorded under Section 313 Cr.PC where all incriminating substance appearing in evidence was put to him and was asked as to whether he want to lead evidence in defense to which he said No, thereafter, matter was posted for final arguments.
9. Ld. APP for state has argued that prosecution has proved its case beyond doubt. He submitted that PW12 categorically deposed that he had seen the deceased lastly in the company of the accused on the night of 09.02.2016 and next day deceased was found dead therefore it was for the defense to satisfactorily prove that accused SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 8 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC was not the one who caused the death of the deceased. He further submitted that defense has also not disputed that on month prior to the incident there was a quarrel between the PW12 and brother of the accused and matter was reported to the police which matter was compromised later on but since then accused has been threatening of causing harm to the deceased and thus accused has strong motive to eliminate the deceased. He further submitted that postmortem report shows that death was caused due to strangulation by a wire which fact got corroborated with the recovery of wire at the instance of the accused. The fact that deceased was found dead near house No. 527 in the lane back side of the Madina Masjid has not been disputed and same is also corroborated by the fact that accused himself led the police to place of incident and identified the said place. Hence, it is contended, that chain of circumstance only points out to the guilt of the accused and is not admitting of the possibility of non involvement of the accused.
10. Ld Defense Counsel has argued that prosecution has failed to prove its case. He has argued that as per prosecution accused got recovered a wire from a nali but prosecution's own witness PW1 and PW2 deposed that when they saw the deceased in the gali of Madina Masjid near house no. 527, a wire was wrapped around the neck of the deceased. He contends that these two witness deposed that wire was wrapped around the neck of the deceased but said wire was neither seized nor explained where the said wire has gone. He further SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 9 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC contends that when wire was wrapped around the neck of the deceased then no question arises to recover such wire from the nali at the instance of the accused. He further submits that it itself shows that allegedly recovery of wire was planted one.
11. Ld. Defense Counsel further submitted that so far as showing the place where deceased was found is concerned same is of no use as such alleged disclosure did not lead to discovery of new fact. The place where body of deceased was found was already known to the investigating agency even before accused was arrested, hence that alleged pointing out has got no meaning and cannot be admitted in evidence. He further contends that prosecution has failed to prove any motive of such murder. He contends that alleged threatening by the accused to cause harm to the deceased, issued to Suraj (PW12), the brother of the deceased, has not been deposed to by the PW12 in the court. He further contends that PW12 only deposed that he was threatened by the accused but did not explain the nature, gravity and extent of threatening. He contended that nothing could be meant if witness only says that he was threatened unless he says what was he threatened about. He contends, that in the absence of motive prosecution cannot be said to have proved the guilt of the accused by circumstantial evidence even of it is considered that prosecution has successfully proved other aspect of the chain.
12. Ld. Defense Counsel further contended that last seen SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 10 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC evidence as deposed to by PW12 is also not believable as the testimony lacks conviction. He submitted that testimony of PW12 Suraj is an after though as his very presence in the morning at his home is doubtful as PW1 and PW2 did not depose about him having visited along with them to the place where dead body of the deceased found, hence he contends that he is not reliable witness at all. Further, it has been argued that prosecution has failed to examine the parents of the deceased for reason best known to them nor were their version was ever taken by the investigating agency. Thus he contends that prosecution has failed to prove its case beyond reasonable doubt.
13. There is no eye witness to the incident of murder. Prosecution is seeking to prove its case based on last seen evidence and motive coupled with disclosure of the accused person followed by recovery of clutch wire allegedly used for strangulating the deceased to death.
14. From the perusal of entire evidence on record, it is noticed that defense has not disputed that deceased was Raja S/o Sushil Kumar R/o D128, JJ Colony Savada, Delhi and that he was found dead on morning of 10.02.2016 in a Gali and adjacent to wall of Madina Masjid near house No. 527, JJ Colony, Savada, Delhi and that accused persons and deceased were known to each other. Further, it is also not disputed before this court that on the day of incident accused Govindo was major. Defense has also not disputed most of the SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 11 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC formalities carried out by the investigating agency such as taking of rukka, registration of FIR, lifting of earth control, fevicol dibbi, handkerchief etc. depositing of case properties in the malkhaana, postmortem etc.
15. It is also seen that cause of death of the deceased has also not been questioned or disputed by defense. Prosecution examined Dr Anurag Thakur who had conducted the postmortem of the deceased and prepared report No.113/16 (though exhibit number was not given) wherein he had opined "death is due to Asphyxia as a result of antemortem ligature strangulation, however, blood and viscera have been reserved to rule out intoxication". He also proved his subsequent opinion Ex P17/J9 on the weapon of offence whereby he opined that produced clutch wire measuring 120 cm "can cause the mark present on neck of the deceased". He has not been cross examined.
16. Prosecution proceeded with theory that death of deceased Raja was caused by strangulation with clutch wire recovered at the instance of the accused persons following their disclosure. Investigating agency zeroed in to accused persons on the ground of suspicion raised by brother of the deceased Suraj who was examined as PW12 in the court. He stated to have seen the deceased lastly in the company of the accused persons at about 8:30 PM on 09.02.2016.
17. PW1 Pintu brother of the deceased deposed that on SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 12 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC 10.02.2016 at about 6:30 am, he was present at his house when he received information that his brother Raja was lying injured in masjid wali gali. Immediately thereafter, he alongwith his brother Rahul reached at masjid wali gali where in front of house no. C527 his brother Raja was lying dead and a wire had been wrapped around his neck. He and his brother carried the body of their brother in front of their house. Matter was reported to the police. Police had taken the dead body of his brother to SGM hospital. He alongwith his other family members also reached at mortuary SGM hospital. He proved his statement Mark P1/A regarding identification of the body of the deceased and Memo Mark P1/B regarding receipt of dead body of the deceased.
18. PW2 Rahul, Cousin brother of deceased deposed that on 10.02.2016, at about 6:30 am, he was present at his house, he received information that his cousin namely Raja was lying injured in masjid wali gali. Immediately thereafter, he alongwith his cousin Pintu reached at masjid wali gali where in front of house no. C527 his cousin Raja was lying dead and a wire had been wrapped around his neck. He and Pintu carried the body of his cousin in front of their house. Matter was reported to the police. Police had taken the dead body of my brother to SGM hospital. He alongwith his other family members also reached at mortuary SGM hospital. He had identified the dead body of his cousin Raja. He proved his statement Mark P2/A regarding identification of the body of the deceased.
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19. Both of this witness was not cross examined by the defense nor by the prosecution. As noted both witness consistently deposed that when they found body a wire was wrapped around the neck. They were neither confronted with their respective previous statement nor they were cross examined by the prosecution particularly with respect their testimonies to the effect that a wire was wrapped around the neck of the deceased when they first found the body of deceased Raja.
20. PW11 Alimuddin is the caller of police when he was informed of a dead body lying in the Gali. He deposed that on 10.02.2016 at about 7:00 am, he came out from the Masjid (Mosque) after Namaz (prayer). Some neighbouring ladies informed him about a boy lying near wall of masjid in gali of his house. He went there and saw a person lying there. He informed No. 100 regarding dead body lying there. Thereafter, he left for his work. Family members of the deceased came and deceased was taken away from the spot. His statement was recorded by the police. During crossexamination by Ld. APP for the State, he deposed that he had pointed out to police the spot where dead body was lying and police prepared site plan at his instance. He was silent as to injury on person or any wire having wrapped around the neck of the dead body.
21. PW12 Suraj, brother of deceased deposed that on SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 14 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC 09.02.2016 at about 8:30 pm, he was returning back home from his place of work. He saw his brother Raja, accused Nooha and one Shashi present at the chowk. He asked his brother to accompany him back home. Accused Nooha told him that his brother would subsequently return back home. Accordingly he went ahead and went to his home. After having his food, he went off to sleep. On the next day morning, his younger brother Bablu informed him that dead body of his brother Raja was lying near masjid and he went there. He and his family members brought the dead body home. They all then left in search of the culprits. Dead body was sent for postmortem. It was received after PM was conducted.
22. He further deposed that about one or two months prior to the incident, brother of accused Nuha namely Polio @ Pankaj and he had sat down for drinks. After having drinks, Polio @ Pankaj started quarreling with someone. He intervened in the quarrel. He also started beating the said third person. During quarrel he received a saria blow on his head. During that quarrel, Polio misplaced his mobile. About five days thereafter, quarrel took place between Polio and him. When he used to go to house of Polio, his sister used to object to his coming over there claiming that he made her brother drink liquor. On the same day at night, accused Nuhoo came to him and threatened him.
23. During crossexamination by Ld. APP for the State, PW12 SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 15 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC admitted that a police complaint was made regarding his quarrel with Polio but it was got compromised by them. He admitted that even thereafter accused used to threaten him for having made complaint to police.
24. During crossexamination on behalf of accused, PW12 deposed that he was illiterate and a casual labourer. On the night of 09.02.2016 he had not gone anywhere in search of Raja. He voluntarily stated that his mother had gone to search him as he was sleeping. No complaint was lodged with police on the night of 09.02.2016 regarding Raja being missing. He denied that on 09.02.2016 he had not seen the accused or Shashi along with his brother at the chowk. He admitted that he had not seen the accused causing any injury to Raja. He had suspicion regarding accused and Shashi having killed his brother. He denied that he was deposing falsely regarding having seen the accused and Shashi with his brother on the night of 09.02.2016. He denied that he had falsely named the accused on account of previous enmity.
25. PW12 Suraj did not speak of presence of wire around the neck of deceased Raja when he first saw the body. PW1 and PW2 does not corroborate the testimony of PW12 to the effect that he (PW12) had gone to the spot where dead body was found. From the statement of PW1 and PW2 it does not appear that PW12 went to the spot where the body was lying in the gali because PW1 and PW2 SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 16 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC categorically deposed that they went to the spot and brought the body. They did not mention that PW12 Suraj also had gone with them. Hence, to say that Suraj had the seen the body at the place where it was first discovered is doubtful. Suraj appears to have been seen the deceased after body had arrived at their place.
26. Now question is whether there was a wire around the neck of the deceased when body of deceased Raja was first discovered? Further, if it was there then where the wire had gone and if it was not there then why PW1 and PW2 depose to said effect? This question is material as prosecution attempting to prove the guilt of the accused by proving that the wire with which death of Raja was caused was got recovered by the accused persons from nali (drain). Answer to above query is also important because it is not the case of the prosecution that part of the wire was around the neck of the deceased and remaining part of the wire was got recovered by accused from nali. Importantly, prosecution did not cross examine PW1 and PW2 to dispute that they saw the wire around the neck of the deceased. This anomaly has not been properly explained by the prosecution and there is nothing to discard part of the testimonies of PW1 and PW2 to the extent wherein they have deposed that they saw a wire around the neck of the deceased.
27. Moving forward it is the case of the prosecution that on the basis of statement of the Suraj, accused persons were searched SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 17 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC and were apprehended next day near bus stand Savada. It is stated that they admitted their guilt and also got recovered a wire. PW14 ASI Begraj, PW18 SI Sapan and PW22 Inspector Dharamvir Singh are witness to the recovery of wire at the instance of the accused.
28. PW14 ASI Begraj deposed that on 11.02.2016 he was posted in PS Kanjhawala and he joined investigation alongwith Inspector Dharamvir Singh and had gone to JJ Colony Savada. Secret informer met them in OBlock there and informed that the persons who had killed Raja were standing near the BBlock School and upon indication of the informer both accused were apprehended. PW14 identified the Govindo in the court. He deposed that when it was revealed that both accused persons are juvenile then Juvenile Welfare Officer (JWO) from the police station was called. Parents of both boys were also called. Both boys were questioned by SHO and JWO and thereafter accused Govindo was arrested vide memo Ex PW14/1 and his version Ex PW14/2 was recorded. Both accused then took them to the spot of the incident and pointed out the spot which was behind the Mosque. Accused also got recovered weapon of offence i.e. wire from a "naali". It was converted into a pullinda and sealed with seal of DS and was seized by seizure memo Ex PW18/3.
29. In cross examination PW14 deposed that only parents of the apprehended persons had reached the spot. He did not remember if any photographs or videography of the recovery proceedings was SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 18 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC done. He denied all the suggestion given by the defense.
30. PW18 SI Sapan deposed that on 11.02.2016 he was posted as JWO in Kanjhawala and reached Savada, B Block upon being called by the SHO. He there found SHO, HC Begraj, staff members along with apprehended boys Shashi Sharma and Govindo and father of Govindo and brother of Shashi Sharma. He identified the Govindo in the court as one of the two boys who was apprehended then. He further deposed that versions Ex PW18/1 and Ex PW18/2 of boys were recorded. Both boys were then arrested and both boys then took them to the spot where they claimed to have thrown the iron wire i.e. weapon of offense. The said spot was near bus stand Swada Colony. Govindo took out the same from nali and produced the same which was kept in plastic dibbi with the seal of DS and seized vide memo Ex PW18/3. Thereafter both boys took them to the spot of incident and pointed out the same vide pointing out memo Ex PW18/4. He identified the wire as Ex P1.
31. In cross examination PW18 deposed that he reached the spot at 9.00AM and was relieved by 11.00 AM. No videography was done in respect of the proceedings. Statements of none of the witness was recorded in his presence and plastic dibbi did not contain his signature and it did not bear the signature of any of the accused. He denied all the suggestion put to him.
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32. PW22 IO Inspector Dharamvir Singh supported PW14 so far as the apprehension of the accused persons, revelation of their name and age, calling of JWO and their parents and recording of their versions are concerned. He deposed that at the instance of accused Govindo one iron wire was recovered which Govindo had taken out from a nali near the bus stand. He measured the said wire which was 3.75 feet and kept the same in plastic dibbi and sealed with seal of DS and taken into possession vid seizure memo Ex P17/J7. He further deposed that accused present in the court along with JCL Shashi had taken them to place of incident and at their instance he prepared pointing out memo Ex PW18/4.
33. In cross examination he admitted that none of the family members of the deceased were made witness to the seizures as well as recovery of the case properties. He denied the suggestion that no recovery was ever effected at the instance of the accused. He denied the suggestion that the signatures of the accused as well as his family members were taken on the blank format and later on the same were converted into recovery memo, disclosure statements and other proceedings papers.
34. Thus all the three witnesses to the recovery of wire remained consistent and corroborated each other so far as disclosure and recovery of wire is concerned. But the order in which thing happened i.e. recovery of wire and pointing out of place of incident, are SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 20 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC not consistent. As per PW14 accused firstly took them to place of incident and then got recovered the wire whereas as per PW18 and PW22 it was vise versa.
35. Further, attention of this Court went to seizure memo Ex PW18/3. Perusal of Ex PW18/3 shows that it was signed by father of the accused Govindo and brother of the Shashi Sharma. But surprisingly none of the witnesses i.e. PW14, PW18 and PW22 deposed that wire was recovered in the presence of the father of accused Govindo namely Haran and brother of the accused Shashi Sharma namely Vijay. They did not depose that Haran and Vijay also signed as witness to seizure memo Ex PW18/3 in respect of wire recovered allegedly at the instance of the accused persons. In fact both PW14 and PW18 deposed that no public witness were joined in the investigation or to the recovery. When defense asked these witnesses as to whether any public was made witness to the recovery at least they could have stated that the wire was recovered in the presence of father of Govindo and brother of Shashi Sharma.
36. Though all three witnesses remained consistent and corroborated each other on the aspect that father of Govindo and brother of Shashi Sharma was called at the spot of their apprehension but none of them spoke that the wire was also got recovered by the accused in their presence and to show fairness of recovery these relatives of the accused were made witness to the seizure memo. Since SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 21 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC all three remained silence on this aspect of recovery of wire, it does lend credence to the stand of the accused that signatures of the accused and as well as family members were taken on the blank format and later on converted into recovery memo, disclosure statements and other proceedings. It has to be kept in mind that accused and his family comes from very poor strata of the society where they would not know as to where they were being made to sign by police nor would they muster courage to refuse to sign any document particularly when their near and dear one is in custody of police. Hence, in view of the testimony of PW1 and PW2 qua finding the deceased with wire around his neck and in view of discrepancy noted above with respect to recovery of wire, the entire recovery of wire at the instance of the accused person has become doubtful.
37. Further, although defense has not disputed the cause of death but attention of this Court has gone to the FSL report on viscera which is available on record. Although the report was not exhibited by any of the witness nor any witness from FSL were examined to prove the same however such report per se is admissible in evidence in view of Section 293 CrPC. Perusal of said report reveals that "Methyl Alcohol" and Ethyl Alcohol" were found in stomach & piece of small intestine Ex 1A, in piece of liver, spleen and kidney Ex 1B and Blood sample (20 ml) Ex 1C. It is further reported that Ex 1C found to contain "Methyl Alcohol" 5.3 mg and "Ethyl Alcohol" 10.3 mg in blood. This viscera report was not taken to the doctor who conducted the SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 22 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC postmortem of the deceased to seek his subsequent opinion as to cause of death as he had reserved blood sample and viscera to rule out the intoxication. Methyl Alcohol is known to cause blindness and death. Thus, final opinion as to cause of death was reserved by doctor PW9 but his opinion was not sought after the viscera report which reported presence of not only Ethyl Alcohol but also deadly Mehtyl Alcohol. Hence, even cause of death has come under cloud.
38. Last seen theory is also not believable in view of the fact that PW12 did not depose in the court that accused ever threatened him that he (accused) would cause harm to his brother. In response to query by Ld. APP for state he deposed that accused used to threaten him for having made complaint to police. Thus, he deposed only that accused had threatened him but did not depose what threatening he had extended. Further, if at all it is believed that accused had threatened him of causing harm to his brother then his conduct in letting his brother alone in the company of accused on the night of 09.02.2016 is unnatural. A person would not let his near and dear one alone in the company of a person who has consistently threatened him of causing harm to the said near and dear one. Thus, in the circumstance where witness did not depose in court anything incriminating against the accused except that he had seen the deceased in the company, it cannot be inferred that accused would have caused harm to the deceased. PW12 in his testimony did not attribute to the accused any motive for killing the deceased. In fact SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 23 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC PW12 cannot be said to have supported the prosecution case so far as assigning to the accused any motive for killing, is concerned.
39. In any case "last seen" is a weak kind of evidence and conviction cannot be based solely on "last seen theory". Hon'ble Apex Court with respect to "last seen theory" has held in Nizam & Ors v.
State of Rajasthan (2016) 1 SCC 550 as under: "Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on last seen theory.
"Last seen theory" should be applied taking into consideration the case of the prosecution in its entirely and keeping in mind the circumstances that precede and follow the point of being so last seen."
40. In view of the above discussion and reasoning where cause of death has come under cloud, where recovery of wire has come under cloud and where last seen evidence has become doubtful on account of unnatural conduct of the witness who saw the deceased last in the company of the accused, there is no option but say that prosecution has failed to prove the guilt of the accused at all what to talk of bringing the guilt within the umbrella of doubt. As a result accused is acquitted of the charge of murder for which he was under trial in the present case.
SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 24 of 25 CNR No. DLNW01-005177-2016 FIR No. 71 /16 PS. Kanjhawala U/s 302/34 IPC
41. Acquitted Govindo @ Nuho @ Nunha @ Chotu is required to furnish personal bond of Rs 25,000/ with one surety of like amount, in terms of Section 437A which bond and surety shall remain in operation for a period of six months.
File be consigned to Record Room after necessary compliance. Digitally signed HARISH by HARISH KUMAR KUMAR Date: 2019.05.31 13:09:26 +0530 (HARISH KUMAR) ADDL. SESSIONS JUDGE - 03, Announced in the open court NORTH WEST, ROHINI COURTS, (Judgement contains 25 pages) NEW DELHI / 30.05.2019 SC No. 53348/2016 State vs. Govindo @ Nuho @ Chotu Page No. 25 of 25