Delhi District Court
State vs . Rakesh on 17 September, 2012
SC No. 05/10
FIR No. 214/09
PS: Chhawla
State Vs. Rakesh
IN THE COURT OF SHRI VIJAY KUMAR DAHIYA
ADDL. SESSIONS JUDGE : DWARKA COURTS:
NEW DELHI
In the matter of :
SC No. : 05/10
FIR No. : 214/09
Police Station : Chhawla
Under Section : 302/201 IPC
Received on assignment : 02.02.2010
Reserved for orders on : 06.09.2012
Judgment announced on : 17.09.2012
State Vs. Rakesh
S/o Shri Ompal
R/o House No. RZ77B,
Aggarwal Colony, Near New Anaz Mandi
Najafgarh, Delhi.
J U D G E M E N T
1. The accused Rakesh is sent for trial for the offences punishable under Section 302/201 IPC.
2. Brief facts of the case as per prosecution story, in the nutshell, are that on receipt of DD No. 4B on 17.10.2009 at about 2.35 a.m., regarding fire in a car at Khera Ghumman Hera Road, SI Arvind alongwith Ct. Naresh reached at the spot and found one burnt Santro Car bearing registration number DL3CAB1563 on the side of SC No.05/10 Page 1 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh the main road. The Fire Brigade was also informed which reached the spot and had extinguished the fire. On checking of the Santro Car, one burnt human dead body, having its head on the West side and feet on the East side, was found on the rear seat of the car and one blue coloured blood stained TShirt having words ''ED Hardy TM'' written on it, was found near the bushes and one blood stained baniyan of Lux Venus was found lying near the field. One another white blue coloured striped Tshirt having blood stains on it was also found near the bushes on the East side of the road. One empty half bottle of MC Dowells No. 1 and one transparent plastic glass were also found there. Crime team was also called at the spot. Thereafter, SI Arvind Kumar prepared the rukka and sent HC Vinod for getting the case registered. After the registration of the FIR, the investigation of the case was marked to Insp. Vijay Singh who reached the spot and sent the dead body for postmortem. Thereafter, Insp. Vijay Kumar took into possession the white & blue coloured striped half sleeve shirt, blue colour Tshirt having Ed Hardy TM written on it, the white colour blood stained baniyan having Lux Venus written on it, half bottle of Mc. Dowells No.1 and the transparent plastic glass and the burnt Santro car was taken into possession. On enquiry, the owner of the Santro car was found to be Smt. Ramwati Devi W/o Sh. Chandan Singh, R/o 191, Balmiki Mohalla, Nagli Sakrawati Village, New Delhi, who was the mother of deceased Rajesh. Smt. Ramwati Devi and Smt. Poonam identified the burnt Santro car to be the same in which deceased Rajesh had left home and they told that the deceased had SC No.05/10 Page 2 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh left the house on the night of incident, to meet one Kamlesh with whom he had illicit relations. Smt. Kamlesh and Smt. Poonam also identified the dead body of Rajesh.
3. On 18.10.2009, Insp. Vijay Singh arrested the accused Rakesh son of Shri Ompal and recorded his disclosure statement. In his disclosure statement, accused Rakesh stated that deceased Rajesh had illicit relations with his mother Kamlesh due to which he and his family members were defamed and even deceased used to comment upon him. He further stated that he was fed up with all these and on 16.10.2009, he called Rajesh (deceased) at Nangloi Stand and purchased one half bottle of Mc Dowells No.1 and met Rajesh at Nangloi stand and thereafter, sat in the car of Rajesh and reached Ghoomanhera Khaira Road and stopped the car near the village of Kharkhari Nahar and made him (Rajesh) drink liquour and when the deceased was under the influence of liquor, he (accused Rakesh) stabbed him with knife due to which Rajesh entered into a scuffle with the accused (guthamgutha ho gaya) and accused Rakesh also sustained injuries on his forehead and accused Rakesh then attacked the deceased with knife and even lifted one brick from the road and attacked with it on the head of Rajesh (deceased). Accused further stated that after committing the murder of Rajesh, he, in order to remove the material evidence, put the dead body of Rajesh in the car and sat the same on fire and ran away from there. The accused further disclosed that he even had thrown his upper wearing clothes, SC No.05/10 Page 3 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh knife and liquor bottle in the bushes and he also had washed blue coloured jeans, which he was wearing at the time of commission of offence.
4. Accused Rakesh had got recovered the blue coloured jeans worn by him at the time of commission of offence from his residence and he also got recovered the knife used in the commission of offence, keys of burnt car and blood stained brick. Thereafter, the dead body of Rajesh was handed over to the family members of deceased after the postmortem. In the postmortem, doctor had opined that the cause of death was due to head injury (craniocerbal injury). External Injury no.1 was ante mortem and caused by blunt force impact against a hard surface/object. External Injury no.2 was ante mortem and caused by a single edged sharp weapon/object. Thereafter, I.O/ Insp. Vijay Singh also took the subsequent opinion of the doctor regarding knife, recovered at the instance of accused and the doctor had opined that the injury stated in the post mortem of deceased Rajesh, can be caused by the knife or a similar object/weapon. During investigation, I.O./Insp. Vijay Singh also got examined the burnt Santro car from FSL Rohini and obtained the expert opinion. After the transfer of I.O./Insp. Vijay Singh, the investigation was handed over to Insp. Sandeep Gupta who got prepared the scaled site plan at the pointing out of SI Arvind Kumar and deposited the DNA Samples at FSL. On the basis of investigation, chargesheet under Section 302/201 IPC was prepared SC No.05/10 Page 4 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh and the same was filed in the Court.
5. After supplying copies to the accused as per law, case was committed to the court of sessions.
6. After due deliberation, charge under Section 302/201 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
7. Prosecution was called upon to adduce evidence to establish its case as per law. Prosecution has tendered witnesses 31 in all in support of its case namely:
PW1 Ct. Yudhvir Singh PW2 Ct. Azad Singh PW3 Shri Sudhir Yadav PW4 Shri Dilip Singh PW5 Dr. Parvinder Singh, Junior Specilist, RTRM Hospital.
PW6 Shri Krishan Singh PW7 Shri Raj Kapoor PW8 HC Jitender Kumar PW9 Ct. Hardeep Singh PW10 HC Rohtash PW11 HC Vinod Kumar SC No.05/10 Page 5 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh PW12 Smt. Ramwati PW13 Ms. Seema Nain, Sr. Scientific Officer, FSL. PW14 Shri Amit Rawat, Sr. Scientific Officer, (Chemistry Division) FSL.
PW15 Smt. Poonam PW16 HC Sanjay PW17 Shri V. Lakshmi Narasimhan, Sr. Scientific Officer, (Physics Division) FSL. PW18 Shri A.k. Srivastava, Asstt. Director (Biology) DNA, Unit FSL.
PW19 Dr. Bharti Bhardwaj, Sr. Scientific Assistant, (Physic), FSL.
PW20 ASI Ravinder Kumar PW21 SI Sandeep Sharma PW22 Insp. Sandeep Gupta PW23 Shri Naresh Kumar Sharma, Finger Print Expert. PW24 Shri Balraj Singh Khokhar, Station Officer, Delhi Fire Service.
PW25 HC Rajeev PW26 Shri D.S. Paliwal, Sr. Scientific Assistant (Biology), FSL.
PW27 SI Gyanender PW28 SI Arvind Kumar PW29 Insp. Vijay Singh PW30 Shri M.N. Vijayan, Nodal Officer, Tata Teleservices.
PW31 Shri Rajesh
8. On completion of prosecution evidence, statement of SC No.05/10 Page 6 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh accused was recorded under Section 313 Cr.P.C. wherein he controverted the entire evidence as false and fabricated and claimed that he has been falsely implicated in this case.
9. Accused persons had examined following witnesses to in their defence evidence: DW1 HC Prahlad Singh DW2 HC Sultan Singh DW3 HC Giri Raj Prasad
10. On completion of defene evidence, final arguments were advanced.
11. I have gone through the entire records and carefully considered the matter.
12. Before proceedings further, I would like to discuss the evidence led by the prosecution to prove the case.
13. PW1 Ct. Yudhvir Singh proved on record the seizure memo of key and key ring which were recovered at the instance of accused from near Sai Baba Mandir, vide Ex.PW1/A. He further proved the seizure memo of some bones and pieces of wire, recovered from the burnt car during inspection by the officials of SC No.05/10 Page 7 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh FSL, vide Ex.PW1/B and Ex. PW1/C.
14. PW2 Ct. Azad Singh deposed that on the night intervening 16th and 17th October 2009, on receipt of DD No. 4B he alongwith SI Arvind Kumar, reached at Khera Gumman Hera Road where one Santro car, bearing no. DL3CAB1563 was found in burnt condition. He further deposed that one human dead body was also found lying in the car and in the meantime Insp. Vijay Singh had also reached the spot. PW1 further deposed that thereafter, on the direction of Insp. Vijay Singh, he took the dead body to RTRM hospital for preservation at mortuary and on 17.10.2009, Smt. Ram Rati and Smt. Poonam came there and identified the dead body. He further deposed that on 19.10.2009, after the postmortem, dead body of the deceased was handed over to his wife Poonam.
15. PW3 Shri Sudhir Yadav deposed that he had informed the police on 100 number on seeing that one car was burning.
16. PW4 Shri Dilip Singh did not support the case of the prosecution and turned hostile and even in his cross examination done by Ld. State Counsel, he denied that he had seen the accused with deceased on the night intervening 16/17.10.2009 while sitting in the car or that on 18.10.2009, he had identified the accused to be the same person who was seen with the deceased on the day of incident.
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17. PW5 Dr. Parvinder Singh proved on record the post mortem report of deceased vide Ex.PW5/A and identified the signatures of Dr. John Verghese, who had conducted the post mortem on the body of deceased Rajesh as he had seen him writing and signing during the course of his official duties. PW5 further proved the subsequent opinion of Dr. John Verghese vide Ex.PW5/B.
18. PW6 Shri Krishan Singh proved on record the five photographs of the dead body, which he had clicked on the direction of the I.O., vide Ex.PW6/A1 to Ex.PW6/A5. He further proved the corresponding negatives vide Ex.PW6/B (collectively).
19. PW7 Shri Raj Kapoor proved on record the receipt issued from RTRM Hospital vide Ex.PW7/A, vide which the dead body was handed over to the mother of deceased.
20. PW8 HC Jitender Kumar has deposed that on 17.10.2009, on the direction of the Duty Officer, he had delivered the copies of FIR at the residence of DCP SouthWest, Joint CP and at the residence of Illaka Magistrate.
21. PW9 Ct. Hardeep Singh was the draftsman and proved on record the site plan vide Ex.PW19/A prepared on the basis of rough measurements and rough notes.
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22. PW10 HC Rohtash proved on record the arrest memo of accused vide Ex.PW10/A, personal search memo of accused vide Ex.PW10/B and the disclosure statement vide Ex.PW10/C. He further proved on record the pant which was got recovered by the accused, vide Ex.PW10/D. The seizure memo of mobile phone make Virgin, which was got recovered by the accused, was proved vide Ex.PW10/E. He further proved the pointing out memos of both the spots i.e. the place where accused had called the deceased and the place where he had killed the deceased vide Ex.PW10/F and Ex.PW10/G respectively.
23. PW11 HC Vinod Kumar proved on record the seizure memo of Santro car vide Ex.PW11/A. He further proved on record the white coloured shirt having blue stripes, having label of Levis, which was found lying in the bushes and was also having blood stains, vide Ex.PW11/B. Seizure memo of one half sleeves blood stained Tshirt, on which words "ED Hardy TM" were printed, was proved vide Ex.PW11/C. One blood stained vest, having label of "Lux Venus90 was proved vide seizure memo Ex.PW11/D. Seizure memo of one plastic glass and one half bottle of Mc Dowell no.1, was proved vide Ex. PW11/E. PW11 further deposed that thereafter, he took the accused to RTRM hospital for his medical examination and after the medical examination of accused, doctor took the blood sample of the accused and handed over the same to him (PW11), who in turn handed it over to the I.O., who seized it vide seizure SC No.05/10 Page 10 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh memo Ex. PW11/F. PW11 further proved the seizure memo of the half brick, used in the offence, vide Ex.PW11/G. He proved the sketch of knife, used in the offence, vide Ex.PW11/H and its seizure memo, vide Ex.PW11/I.
24. PW12 Smt. Ramwati is the mother of the deceased Rajesh whose testimony will be discussed in the later part of the judgment.
25. PW13 Ms. Seema Nain proved its report qua biological analysis vide Ex.PW13/A and the report qua serological analysis, vide Ex.PW13/B.
26. PW14 PW14 Shri Amit Rawat deposed that he had done the chemical analysis of the three parcels received and prepared its report which he proved vide Ex.PW14/A.
27. PW15 Smt. Poonam is the wife of the deceased Rajesh whose testimony will be discussed in the later part of the judgment.
28. PW16 HC Sanjay proved on record the entry made on 17.10.2009, of deposition of one burnt car bearing no. DL3CAB1563, one parcel containing blood stained TShirt, one parcel containing blood stained half sleeves Tshirt, one parcel containing broken glass of half bottle of liquor and plastic glass, one parcel containing white SC No.05/10 Page 11 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh banyan alongwith sample seal, vide Ex.PW16/A. He further proved the entry, made on the abovesaid date, of deposition of one parcel containing black jeans, another parcel containing black mobile phone alongwith sample seal, vide Ex.PW16/B. He further proved the entry, made on 19.10.2009, of deposition of one parcel containing blood sample, one parcel containing keys alongwith seven other parcels and keys vide Ex.PW16/C. He further proved the entry, made on 20.10.2009, of deposition of one parcel containing blood stained price of brick and one parcel containing knife, vide Ex.PW16/D. He further proved the entry, made on 16.11.2009, of deposition 25 sealed parcels alongwith sample seal, vide Ex.PW16/E.
29. PW16 further deposed that on 09.11.2009, two sealed parcels alongwith sample seal were sent to FSL Rohini, through RC vide Ex.PW16/F and on 16.11.2009l, the car was sent to FSL Rohini through RC, vide Ex.PW16/G. PW16 further deposed that on 24.11.2009 seven sealed parcels alongith sample seal were sent to FSL Rohini vide RC, Ex.PW16/H and on 27.11.2009, the RC of three sealed parcels alongwith sample seal, sent to FSL Rohini, was proved vide Ex.PW16/I. The RC of four sealed parcels alongwith sample seal, sent to FSL Rohini, was proved vide Ex.PW16/J. The acknowledgment dated 24.11.2009, 27.11.2009 and 24.12.2009, received after deposition of abovesaid case property was proved vide Ex.PW16/K, Ex.PW16/L and PW16/M respectively.
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30. PW17 Shri V. Lakshmi proved on record its report of the exhibits sent to FSL, Physics Division vide Ex.PW17/A.
31. PW18 Shri A.K. Srivastava deposed that he had done the DNA test and had concluded that the DNA profiling (STR analysis) performed on the samples provided, is sufficient to conclude that the source of blood sample of Smt. Ram Rati, is biological mother of the source of tooth from the body of deceased. PW18 proved its report vide Ex. PW18/A.
32. PW19 Dr. Bharti Bhardwaj proved its report vide Ex.PW19/A and deposed that as per her report, the vehicle was completely burnt and melted glass was found inside the front portion of the car. On chemical treatment of place of chasis number an engine number, the chasis number was found as "MALAA 51HR2M275327*J" and the engine number was found as "G4HD2B53245". The registration number at the back of the car was traced as "DL3CAB1563". A perforated hole in pipe connecting CNG .
33. I have heard Ld.Addl. PP for the State and Ld. Counsel appearing for the accused and have perused the entire material on record.
34. Ld. Addl. PP submitted that the evidence on record SC No.05/10 Page 13 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh establishes that the deceased was last seen in the company of the accused Rakesh in the late hours of 16th October, 2009 and thereafter his dead body was found in the burning car. He submitted that it has been proved that the accused call the deceased on the pretext of having liquor and after having liquor with the deceased stabbed him and hit him with a half of brick on his head and then lit the car of the deceased on fire in order to destroy the evidence of crime. According to him, the motive of the crime is very clear. The deceased was having illicit relations with the mother of the accused and such relation was intolerable to the accused, therefore accused eliminated the deceased. He submitted that prosecution has been successful in establishing the chain of events which lead to the death of the deceased and every link in the chain of circumstances is complete and points to the guilt of the accused. As such, the accused is liable to be convicted for the offence charged with.
35. Per contra, it was submitted on behalf of the accused that there are various missing links in the chain of circumstances brought forth by the prosecution relating to death of the deceased besides their being material contradictions in the statements of material witnesses. It was submitted that the circumstantial evidence provided in this case against the accused does not point towards his guilt but to his innocence. It was submitted that the prosecution has failed to prove the motive for the crime, which is essential in the cases based upon circumstantial evidence. He submitted that no SC No.05/10 Page 14 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh evidence has been led by prosecution that the accused had a motive to eliminate the paramour of his mother, otherwise, the accused was having family relations with the deceased. The ld defence counsel submitted that evidence on record goes to show that the accused is innocent and he has been implicated falsely in this case.
36. Needless to mention that Ld. Addl. PP for the State as well as Ld. Defence counsel took me through whole material on record which includes voluminous oral as well as documentary evidence and written submissions.
37. By now, it is evident that the case of the prosecution rests squarely on the circumstantial evidence. There is no direct eye witness to the crime. Experience shows that very rarely are crimes committed in full public view at a public place. Often, the crimes including murder are accomplished secretly far from public gaze so as to avoid their detection. In such cases, the culprits are tracked either on the basis of last seen together or other circumstances appearing on the scene including motive of crime, from which their guilt is inferred. Such type of evidence is called as 'circumstantial evidence'. In cases based upon circumstantial evidence, burden upon the prosecution is heavier to prove each and every circumstance leading to the death of the deceased, beyond any reasonable doubt. The facts and circumstances so established should lead to only one inference i.e the guilt of the accused and SC No.05/10 Page 15 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh should be complete without any missing link in the same so as not to leave any reasonable ground for a conclusion inconsistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
38. It is settled principle of law that such evidence must satisfy the following tests:
(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) those circumstances should be of such tendency which point towards guilt of the accused.
(iii) the circumstance, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanations of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
39. While bearing the abovesaid principles in mind, let me now scrutinize evidence led by the prosecution in the instant case.
The prosecution in order to complete the links in the chain of circumstantial evidence has enumerated the following facts which SC No.05/10 Page 16 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh are stated to have been proved by the prosecution.
(i) The deceased Rajesh was having illicit relations with the mother of accused and this fact was intolerable for the accused and that is why he was having a motive to eliminate the deceased.
(ii) The accused has called the deceased in the evening of 16.10.2009 by making a call from his mobile phone on the phone of the accused.
(iii) The deceased had told his wife at about 7:30 pm that he is going to the house of Kamlesh, mother of the accused who had called him at her house.
(iv) The accused was last seen in the company of the accused by PW4 Dilip Singh.
(v) The accused had liquor with the deceased Rajesh and when the accused was under the influence of liquor, the accused stabbed him in his abdomen and thereafter hit his head with a half of brick and thereafter put the car of the deceased on fire to destory the evidence.
(vi) The accused left his blood stained clothes at the spot of crime.
(vii) The deceased was apprehended and made disclosure statement and got recovered his blood stained clothes as well as weapon of offence i.e knife and half of the brick as well as the keys of the car of the deceased.
(viii) Finger prints of the accused tallied with the chance prints collected at the scene of crime by police.
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40. From the evidence on record facts noted below emerged undisputed. The deceased Rajesh Kumar was a driver by profession and he was on visiting terms with the family of the deceased. His dead body was discovered in the car which was found ablaze by PW3 Sudhir Yadav who made a PCR call on 100 by his mobile No. 9212570085. The postmortem examination of the dead body was conducted by PW5 on 19.10.2009. The postmortem report is Ex.PW5/A. As per report and testimony of PW5, following external injuries were found on the body of the deceased.
1. Injury No.1 left leg burnt up to middle of thigh.
2. Right thigh burnt about just above knee.
3. Left upper limb burnt up to upper one third of huerus External examination of injuries:
1. Fracture left side of skull with left parietal and temporal bones missing. Injuries were antemortem and recent with lacertation of underlying parietal, temporal and occipital lobes, sub dural haematoma of left hemisphere of brain present.
2. One antemortem stab injury present on left flank 13.6 cm above the left iliac crest, 16 cm from midline (anterioly), measuring
4.2 cm x 1.3 cm. Internally the wound extends posteriorly, upwards and medially into the left kidney piercing the antero lateral surface of SC No.05/10 Page 18 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh kidney. No other external ante mortem injury could be appreciated due to extensive full thickness burns.
41. PW5 has opined the cause of death as head injury (Craniocerbal injury). He has also stated that injury No.1 is antemortem in nature and recent and caused by blunt force impact against a hard surface and injury no.2 is antemortem in nature and caused by a single edged sharp weapon.
42. So far as identity of accused is concerned. PW12 Ramwati and PW15 Poonam, wife of the deceased identified the dead body of the deceased as that of Rajesh. Apart from this, PW18 has deposed that as per his conclusion DNA profiling STR analysis performed on the sample of blood of Ramwati compared with that of tooth from the body of deceased and source of exhibit 8 of (Ramwati) tallied with that of the deceased i.e source of exhibit 5 (tooth from body of deceased) in terms of his report Ex. PW18/A.
43. The external injuries found on the dead body as noted herein above, manifest that deceased was stabbed and hit with a blunt article before his car was lit on fire. There remains no doubt that death of the deceased was homicidal.
44. This brings me to the question as to whether the accused caused the death of the deceased.
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45. The deceased is stated to have left his home on 16.10.2009 at about 8:00 pm for the house of Kamlesh, mother of the accused and his car was found burning at about 2:00 am on 17.10.2009 at Gumenheda Road near Village Kharkhari Nahar. So far as motive is concerned; it is alleged by prosecution that the accused was heaving a grudge against the deceased on account of the fact that deceased was having illicit relations with his mother, Kamlesh and he had the motive to eliminate the deceased. In order to prove the motive, the prosecution has relied upon the evidence of PW12 Ramwati and PW15 Poonam, mother and wife of the deceased respectively.
46. The statement of the mother of the deceased before the court as PW12 is reiteration of her statement before police, PW12 has testified that on 16.10.2009 at about 7.00/8.00 pm, Kamlesh gave a phone call on the mobile phone of the deceased when the deceased was at home and on receiving the call from Kamlesh the deceased left for the house of Kamlesh and on enquiry from PW15, Poonam, wife of the deceased, the deceased told that he was going to the house of Kamlesh. The deceased went in his Santro car. This witness further testified that the deceased was having illicit relations with the mother of the accused. She has further stated that the fact regarding having illicit relations with Kamlesh was known to the sons of Kamlesh as the deceased used to stay at the house of Kamlesh and sons of SC No.05/10 Page 20 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh Kamlesh used to call the deceased as 'uncle'. She has further testified that police came to her house at 4:00 am on 17.10.2009 and showed her RC of a Sanro car and enquired about her son and PW12 further told to the police that her son Rajesh had gone to the house of Kamlesh. She has further stated that her son has been killed by Kamlesh and accused. She has further stated that she told police that her son had received a call from Kamlesh on 16.10.2009 at about 8:00 pm and PW15 inquired from the deceased as to where he is going and the deceased stated that he was going to the house of Kamlesh. But this fact had not been recorded by police. She denied having knowledge of mobile phone of her son or of accused or of Kamlesh. She has further admitted in cross that many criminal cases were pending against her son and everybody was scared of her son as he used to beat everyone due to which no one came forward to ask him to discontinue his relations with Kamlesh. She has further volunteered that once accused Rakesh has intervened and saved PW15 Poonam when the deceased was beating her and in answer to a leading question put to her by Ld. Addl. PP she has answered that she does not know if accused Rakesh objected to the illicit relation between deceased and Kamlesh and she volunteered that sons of Kamlesh used to visit her home and even used to touch her feet.
47. Similarly, PW15 has deposed that on 16.10.2009 the deceased had received phone call from the house of Kamlesh, who is a distant relative and her husband had illicit relations with said SC No.05/10 Page 21 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh Kamlesh and he had gone to the house of Kamlesh and did not come in the night and at about 4:00 am on 17.10.2009 police came and disclosed that a dead body has been found in a Santro car and thereafter she alongwith PW12 went to RTRM hospital and identified the dead body.
48. During cross, this witness has admitted that there were cordial relations between the deceased and family of Kamlesh upto two years prior to the incident. She has further admitted that she had not gone to the house of Kamlesh on the night of 16.10.2009 as the deceased used to stay for some days in the house of Kamlesh. She has further admitted that Kamlesh stood surety to her husband in criminal cases and she has further admitted that the accused had saved her from her husband when she was assaulted by her husband. In cross, she has further improved her statement by saying that she had told police that she suspected that her husband has been killed by Kamlesh and accused.
49. So far as the evidence to prove the motive is concerned, PW28 SI Arvind Kumar has deposed that he had gone to the house of PW12 Ramwati and where PW12 Ramwati and PW15 Poonam were interrogated and they had stated that the deceased had gone in the said Santro car on 16.10.2009 and the deceased had told them he was going to meet accused Rakesh and PW12 has further stated to PW28 that the deceased was having illicit relations with the mother of the SC No.05/10 Page 22 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh accused. PW29 Inspector Vijay Singh has deposed that he alongwith PW28 had gone to the house of PW12 Ramwati and Ramwati told PW29 that her son; the deceased was having illicit relations with Kamlesh, the mother of the accused Rakesh and the deceased frequently visited the home of Kamlesh for the last 45 years. PW29 has further deposed that PW12 had stated to him that the deceased had told her that the accused Rakesh was threatening him and the deceased was going to meet Rakesh.
50. From a conjoint reading of the testimonies of PW12, PW15, PW28 and PW29, the irresistible conclusion can be drawn that their testimonies are contradictory. PW28, PW29 stated that PW12 and PW15 had told that the deceased had gone to meet the accused Rakesh as the accused was threatening the deceased, whereas PW12 and PW15 have deposed that the deceased had told them that he had got a call from the house of Kamlesh and the deceased was going to the house of Kamlesh. It may be noted here that PW12 and PW15 in their statements recorded under section 161 Cr.PC have stated that the deceased had stated that he was going to teach the accused a lesson as the accused was threatening him. PW29 has also admitted that he has investigated the case only from one angle i.e the illicit relation between the deceased and Kamlesh, mother of the accused and PW29 has further admitted that apart from the statement of PW12 and PW15 he had not recorded the statement of any other neighbour to prove the motive of the accused SC No.05/10 Page 23 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh to eliminate the deceased i.e illicit relationship between the deceased and his mother regarding.
51. PW12 and PW15 admitted in their deposition that the accused used to stay at the residence of Kamlesh and there was cordial relations between the family of the deceased and that of the accused. PW15 had stated that although relationship between the two families were strained for the last two years yet the deceased used to stay at the house of Kamlesh. PW12 and PW15 have admitted in their testimonies that accused saved PW15 when the deceased was given her beatings. PW12 has also admitted that accused used to touch her feet when used to meet her. PW15 was having knowledge that accused objected to the illicit relationship of her mother with the deceased. Therefore if the accused is stated to have any objection to the alleged illicit relationship of his mother with deceased, the accused should not have allowed the deceased to stay at his residence in the night for the last so many years. Therefore, the accused admittedly having cordial relations with the family of the deceased as the accused used to touch feet of PW12 and saved PW12 from the clutches of the deceased when the deceased was beating her.
52. It may be noted here that PW12 and PW15 have deposed on the lines that Kamlesh was a coaccused and she should also be arrayed as accused. This fact is fortified even from a bare SC No.05/10 Page 24 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh perusal of the complaint PW12/X1, wherein PW12 has averred that Kamlesh has called the deceased at her residence and she is the real culprit. It appears that on this count also these witnesses have contradicted themselves to their deposition in the court, with that of their statements under section 161 Cr.PC, in respect of the fact that deceased was being called by Kamlesh as deposed in court, and deceased left for teaching a lesson to accused who threatened the deceased as recorded under section 161 Cr.PC.
53. So far as calling of the deceased by the accused from his mobile phone No. 9278404863 to the deceased at his mobile phone No.9250953517 is concerned, to prove this connectivity of the accused with the deceased, the prosecution has led evidence of PW31 Rajesh, brother of the accused, who has deposed that he was having mobile phone bearing number 9278404863 which was seized vide Ex. PW30/B and in cross he stated that the said mobile phone was used by him only and he never gave the said phone to anyone and alleged Rajesh was having his own mobile phone which number is not known to him.
54. In view of the above discussion, I am of the opinion that the prosecution has failed to prove that accused had a grudge against the deceased and was having a motive to eliminate the deceased on account of such alleged illicit relationship between his mother and the deceased.
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55. So is the case regarding mobile No.92509953517 which is in the name of one Jitender Singh, S/o Sh. Jagmal issued on the ID (EX. PW30/D). But the investigating agencies have not even recorded the statement of Jitender Singh, not to talk of citing said Jitender as a witness, in order to prove that mobile phone bearing no. 9250953517 was used by the deceased. Similarly PW12 and PW15 have deposed that they do not know the mobile phone of the accused Kamlesh and even that of the deceased. Therefore, even it is proved on the record that was a dialogue between the two mobile phones i.e 9278404863 and 9250953517even though it cannot be proved on record that these number were 9278404863 and 9250953517owned and possessed by the accused and the deceased respectively and they had conversation on that date of incident. Therefore, the prosecution has failed to prove on record that the deceased was called by the accused by making a call on his mobile phone.
56. Now coming to the evidence of last seen together. It is the case of the prosecution that the deceased was last seen in the company of PW4, Dilip Singh. But this witness when appeared as PW4 turned hostile and stated that once police had come with a boy at his shop and asked him if he could identify that boy, but PW4 had refused to identify said boy. Therefore, this witness was declared hostile and in cross nothing could be elicited from this witness to support the last seen together theory. Therefore the evidence of last seen together of the prosecution story stands dissipated.
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57. So far as the recovery are concerned, the law is settled as has been observed in Shakil @ Bhola Vs State 2012 VII AD Delhi 550 :
To compound it what also emerges from the record is that each of the three articles were recovered from an open place accessible to all and not shown to be a specific area or which were within the special knowledge of the accused. Having regard to the settled position in law that recovery of common objects and articles - a watch; key ring and wallet undoubtedly falling within that description unless shown to be specifically connected with the deceased or the accused, cannot be itself indicative of guilt.
58. The keys of the car as well as the house of PW12 were alleged to have been in terms of the disclosure statement (PW10/C) from a place of his exclusive knowledge. But this recovery is doubtful in as much as PW1 has deposed that the spot from which recovery was affected was not behind the wall of the temple but it was behind wall of some other building near the temple, whereas PW12 Ramwati has stated that keys were recovered from the back side wall of temple. To the same effect is the deposition of IO/PW32. But SC No.05/10 Page 27 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh even if the testimonies of those witnesses is presumed to be true, the recovery of keys can not be said to a place only within the exclusively knowledge of the accused as the said place i.e back side wall of the temple is a public place accessible to all and the keys are found lying not hidden under any object. From this alleged recovery of keys vide Ex. PW1/A in terms of the disclosure of the accused; it clearly emerges that investigating agency had procured these keys somehow or the other to connect the accused with the commission of crime. In normal course, no one would take away keys of a vehicle, particularly, when such vehicle has allegedly been used in the commission of the crime and is totally burnt with dead body inside it. Looking the matter from yet another angle, even if, the accused was to cause disappearance or destruction of the evidence to screen him from legal punishment, he was not to take keys of the car with him, recovery of which later could bring unending problem for him. Further no opinion was obtained that keys Ex. PW1/A were of the same car which was lying burnt with a dead boy at the scene of crime.
59. Similarly, the recovery of knife and one half of the brick, i.e alleged recovery of weapon of offence (knife Ex. P5 seized by seizure memo Ex. PW11/H), brick Ex.P6 (seized vide seizure memo Ex. PW11/G) in terms of the disclosure of the accused are also doubtful as the IO as well as crime team had earlier inspected the place of incident on the day of commission of offence and other SC No.05/10 Page 28 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh articles namely blood stained shirt Ex.P3 (vide seized by seizure memo Ex. PW11/B), blood stained T shirt Ex.P2 (vide seized by seizure memo Ex. PW11/C), blood stained vest Ex. P4 (vide seized by seizure memo Ex. PW11/D), half of liquor bottle (Ex. P7) and one plastic glass Ex.P8 (seized vide seizure memo Ex. PW11/E) are recovered. But IO and other police official stated that knife and half of the brick were got recovered by the accused which is the place situated at just 2030 days from the spot (which was earlier examined by the police and crime team) which itself make the alleged recoveries doubtful as the said recoveries are made from common place and accessible to public and furthermore no public witness is joined when such recoveries are effected at the instance of the accused.
60. So is the case of recovery of pant (Ex. PW10/D) (Ex.P11) which was handed over by the accused from his bathroom in his house to the IO which is alleged to have been washed off by the accused. But there is no evidence that said pant alleged to have been got recovered by accused was having any connectivity with other articles recovered by police at the scene of crime was worn by accused on the date of incident as group of blood on knife (PW11/H) (Ex.P5) could not be specified as there was no reaction on the serological examination of this knife and group of blood on exhibits 1 to 4 in terms of report (Ex. PW13/B) could not be tallied with that of the accused. Furthermore accused was arrested on 18.10.2009 and SC No.05/10 Page 29 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh knife and key of the car was recovered on 20.10.2009.
61. In this regard, I found support from the judgment titled as AIR 1972 SC 975, "Himachal Pradesh Administration Vs. Om Prakash".
62. In the above said case, the accused was arrested on 01.02.1967 and on the same day he had made a disclosure statement and had volunteered to get certain incriminating articles recovered including the weapon of offence and pursuant to that disclosure statement some of the incriminating articles were recovered on 01.02.1967 itself while some incriminating articles were recovered on 02.02.1967. The Hon'ble Supreme Court did not accept the recoveries made on 02.02.1967 because of the delay in getting the recoveries effected. It was observed by the Hon'ble Supreme Court that the accused had already given the information to the police on 01.02.1967 about the place where he had hidden certain articles and since the police knew the place fom where the articles were recovered on 02.02.1967 it could not be said that the same had been discovered as a consequence of the information furnished by the accused and observing so the recoveries made on 02.02.1967 were excluded from consideration. This is what was observed by the Hon'ble Supreme Court in para No.14 of the judgment regarding the recoveries made on 02.02.1967.
SC No.05/10 Page 30 of 39 SC No. 05/10 FIR No. 214/09PS: Chhawla State Vs. Rakesh "We then come to the recovery on the second February of Pant, the Account Books and the vouchers, these however, cannot in our view be relied upon because PW28 had information relating to them which had been furnished by the accused more than 24 hours before and the description given by him was such that they could have been discovered. At any rate the long delay does not lend assurance to the discovery...............". So is the ratio of case law Babudas Vs. State of MP 200392) RCR/Crime
871.
63. Therefore even if we take entire case of the prosecution built up on circumstantial evidence in the nature of the recoveries during the course of investigation, it falls short of genuineness when countenanced with practical aspects and on the canvas of probabilities.
64. Next circumstantial evidence is the finger print impression of the accused. PW23 Naresh Kumar Sharma has compared the chance prints mark Q1 to Q5 alongwith specimen finger print Mark S1 and he found chance print Mark Q1 was identical with the specimen finger print Mark S1 which was print of right little finger of the accused. However, chance prints mark Q2 to SC No.05/10 Page 31 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh Q5 did not disclose suffucient number of details for comparison in terms of Ex. PW23/A.
65. Ld. Defence counsel has contended that this piece of evidence is not admissible as the same has not been taken without following the mandate of provision of the identification of Prisoners Act 1920 and he had relied upon judgment Suresh Vs. State (NCT) of Delhi 2010 CRI.L.J.3675, Mohd. Aman and another Vs. State of Rajasthan AIR 1997 SC 2960, Giriraj Vs. State of Rajasthan 2006(1)RCR (Criminal) Page 632, Ashok Kumar @ Govind etc. Vs. State 2010 CRI.L.J 2329. But this contention raised by the counsel for the accused appears to be attractive but the same is falacious and is hereby rejected as in the case of Sapan Haldar & Anr Vs. State 191(2012) DLT 225 (FB), it has been observed as under:
2. Deciding a reference made to it, vide opinion dated September 30, 2011 in Crl. Appeal No. 1005/2008, 'Bhupinder Singh v. State', on the question: "Whether the sample finger prints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate, under Section 5 of the Act will be a admissible or not?" a Full Bench of this Court overruled the view taken by Division Benches SC No.05/10 Page 32 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh holding against the admissibility of such evidence and affirmed the view taken by Division Benches holding in favour of admissibility of such evidence but proceeded to decide the reference, as would be evident from a reading of paragraph 18 of the opinion dated September 30,2011, as if the question referred to the Full Bench embraced even a handwriting or a signature obtained from a person accused of an offence whilst in police custody.
33. Relevant would it be to further note that in relation to offences punishable with death or imprisonment for life, Section 4 of the Identification of Prisoners Act, 1920 would not be applicable because the said provision specifies a prerequisite: that the person concerned is accused of having committed an offence which is punishable with a sentence to undergo rigorous imprisonment for a term of one year or upwards i.e the sentence must relate to imprisonment for a term and would thus exclude such offences where either capital punishment or imprisonment for life is the sentence contemplated.SC No.05/10 Page 33 of 39 SC No. 05/10 FIR No. 214/09
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66. Therefore, if finger print impression of the accused is taken without getting formal permission of the court, such non compliance of the provision of this act does not render such evidence inadmissible in view of Sapan Haider case (supra). Therefore, the prosecution is left with this piece of evidence which is admissible in evidence.
67. But now question arises whether the conviction can be sustained and accused can be convicted on the basis of this piece of evidence i.e finger print impression of the accused. In this regard, I found support from Musheer Khan @ Badshah Khan Vs State of Madhya Pradesh 2010 Vol 1 RCR (Criminal) 817 wherein it has been observed that :
It will be noticed that under the Indian Evidence Act, the word 'admissibility' has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act. But one thing is clear that evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.SC No.05/10 Page 34 of 39 SC No. 05/10 FIR No. 214/09
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68. It is settled law that it is not desirable to impose conviction solely on the evidence of expert without corroborative evidence either direct or substantial. In this regard, I found support from K.Sulochanna Vs. State represented by Inspector of Police, Vigilance Anti corruption Nagarcoil 2010(5) RCR Criminal 327.
69. It is pertinent to mention here that in the present case, prosecution has failed to prove the motive of commission of the offence and the present case based on circumstantial evidence. Motive and conduct of accused has paramount importance. It has been observed in Sanjay Mittal Vs. State of Haryana 200293) RCR criminal 127:
"In case consisting of circumstantial evidence against the accused to prove his guilt, the motive and conduct evidence assumes vital link in the chain of circumstances against an accused person. There has to be some motive for the appellant to commit the murder of Devinder Pal Singh. However, in this case none is disclosed by any of the witnesses earlier to teh trial. Even Kuldip Kaur PW8 did not state that the appellant had any ill will against her husband. The relevance of motive in a case SC No.05/10 Page 35 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh resting only on the circumstantial evidence has been highlighted by the Supreme Court in its decision in the case reported as State (Delhi Administration) V. Gulzarilal Tandon, AIR 1979 SC 1382, and the Apex Court held as under : "In cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in the order to tilt the scale against the accused....."
70. In a murder case, which is based on circumstantial evidence motive plays a vital role. The court is to take into consideration the motive for the crime. When there is no motive, then the link in the chain is missing. When the prosecution fails to prove the motive in the part of the accused, its case becomes doubtful. Not only this, the prosecution has to prove each and every circumstance beyond reasonable doubt that accused was not the person who committed the offence and none else. The court is not to base its findings in surmises and conjunctures.
71. In the case of Kuldip Sham Vs. State of Punjab, 1980 CRI.L.J.71, it has also been observed as under: Where there is no eyewitness to the occurrence SC No.05/10 Page 36 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh and the prosecution evidence comprises of only circumstantial evidence, the motive and the conduct of the accused are not only relevant but are of paramount importance in order to establish the guilt against him.
72. There is no evidence if appellant was absconding after the alleged occurrence or was evading arrest. His conduct also is in consonance with his innocence.
73. Prosecution has failed to prove or lead any evidence to prove that print in question i.e on the half bottle of liquor came into existence at the time when the alleged incident took place. In this regard, I found support from Roop Singh @ Rupa Vs. State of Punjab (2008) 11 SCC 79. Same is the ratio of Rajesh @ Raju Vs. State of Haryana 2006(3)RCR(Criminal) 993.
74. It is settled principle of law that suspicion however strong cannot take place of proof, the said principle has been stated by the Hon'ble SC 2011 (1) Crimes 145 (SC) M Nageshwar Rao Vs. State of Andhra Pradesh wherein it has been observed that:
"Thus analysed, there appears to be hardly anything in the prosecution evidence to establish the charge against the appellant. The SC No.05/10 Page 37 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh facts and circumstances of the case may give rise to a strong suspicion against the appellant but it has been said many times before that suspicion howsoever strong cannot take place of proof. There is no proof of the appellant's guilt and on the basis of the evidence on record it would be quite unsafe to hold him guilty of murder and to send him to imprisonment for life."
75. From the above discussion, I am of the opinion that prosecution has failed to prove on record the motive as well as last seen together theory and furthermore the recovery is alleged to have been made by the accused are also doubtful and could not be connected with either accused or to the deceased and the prosecution is only left with one piece of evidence (finger print evidence) which can be said to be admissible, although the prosecution has failed to prove that how such finger print impression came at the spot but law is well settled that on the basis of finger print expert opinion no conviction can be sustained and the finger print impression is an expert evidence and which incorborative in nature and no conviction can be sustained on the single piece of evidence. Otherwise also in a case of circumstantial evidence one must look for complete chains of circumstances and not on snapped and scattered links which do not make a complete sequence. Hence SC No.05/10 Page 38 of 39 SC No. 05/10 FIR No. 214/09 PS: Chhawla State Vs. Rakesh accused is acquitted of the offence punishable under section 302/201 IPC.
76. Accused Rajesh is, however, directed to furnish fresh bail bond in sum of Rs. 20,000/ with one surety in the like amount in terms of Section 437A Cr.P.C. undertaking to appear if called, before Appellate Court as mandated therein. Personal bond and surety bond are to be filed and be accepted for a period of six months as provided under Section 437A Cr.P.C.
77. File be consigned to record room.
Announced in the open court (Vijay Kumar Dahiya) th on the 17 Day of September 2012 ASJ/ Dwarka Courts New Delhi SC No.05/10 Page 39 of 39