Delhi District Court
1 State vs Harvinder, Fir No. 373/03, Ps New Ashok ... on 1 February, 2010
1 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
IN THE COURT OF SHRI DILBAG SINGH: ADDITIONAL SESSIONS
JUDGE01(E): KARKARDOOMA COURTS : DELHI.
Sessions Case No.157/06
Date of Institution: 31.7.2006
Date on which reserved for orders:30.1.2010
Date of delivery of order: 01.02.2010
State v/s 1. Harvinder Singh @ Appu S/o Shri Charan Singh,
R/o 14/1, Harijan Basti, Kondli, Delhi.
2. Manoj Kumar s/o Sh. Atvir Singh (facing trial before
Juvenile Justice Board)
FIR NO. 373/03
PS New Ashok Nagar
U/s 302/201/34 IPC
JUDGMENT:
1. Case of the prosecution as disclosed from the report u/s 173 Cr.P.C. is to the effect that on 11.3.2003, an information was received in PS New Ashok Nagar concerning lying of dead body at Smriti Van, near SFS Flats, Mayur Vihar PhaseIII. This information was recorded vide DD no.13A. In pursuance to the same, SI Jagdish Prasad alongwith SI Ram Parsad and Const. Sanjay Nagar proceeded to the spot and found a dead body of a young boy aged about 20 years having injuries on his person. SI Jagdish Parsad found sky colour shirt, white baniyan, matiyala colour pant and sky colour underwear on the person of dead body. The blood had oozed out from 2 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar the injuries. He also found blood lying on the ground near the dead body. On search, a brown colour purse containing identity card on which United Citizen Party D29 Kondly, Delhi, was written and some visiting cards, was recovered. SI Jagdish Parsad called father of the deceased namely Ramesh Chand, who reached the spot, identified the dead body to be of his son Vinod Kumar and stated that on 10.3.2003, around 8 p.m. his son Vinod Kumar left the house, but he could not return home till morning. That he made enquiries about his son from his neighbours and and relatives, but of no avail.
2. On the basis of above stated facts, SI Jagdish Parsad got the case registered under Section 302 IPC, summoned the crime team, got the spot photographed, prepared site plan, lifted blood samples, blood stained earth, earth control sample from the spot, converted the samples into separate parcels, affixed his seal JP over the parcels, recorded the statements of witnesses, filled up death report and sent the dead body for postmortem to LBS Mortuary through Const. Sanjay Nagar.
3. On 12.11.2003, SI Jagdish Parshad got the postmortem conducted and after postmortem dead body was handed over to his father. He arrested accused Manoj Kumar (facing trial before Juvenile 3 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Justice Board) and Harvinder, recorded their disclosure statements, got prepared scaled site plan, recorded the statements of witnesses, sent the exhibits of this case to FSL through Const. Kailash on 29.12.2003 and after completion of necessary investigation, challaned the accused persons.
4. Area M.M. after compliance of the provisions of Section 207 Cr.P.C committed the case to the court of Ld. Sessions Judge and case was ultimately assigned to one of the predecessors of this court.
5. On 24.03.2004, charge under section 302/201 read with Section 34 of IPC was framed against the accused Harvinder, to which accused pleaded not guilty and claimed trial.
6. Prosecution in support of its case has examined PW1 Shri Raj Kumar, PW2 Shri Shailender, PW3 Shri Harish Kumar, PW4 Shri Ravi, PW5 Const. Kailash Yadav, PW6 Const. Sanjay Nagar, PW7 Dr. A.K. Verma, PW8 Shri Ramesh Chand, PW9 H.C. Rambir, PW 10 Const. Shiv Om, PW11 SI Mahesh Kumar, PW12 Inspector Jagdish Parshad, PW13 Const. Navnit, PW14 SI Ram Parshad, PW 15 Dr. L.C. Gupta and PW16 Dr. Vinay Kumar.
7. PW1 Shri Raj Kumar has testified that on 10.11.2003, around 7.30 p.m., he was present at his shop of ready made clothes and saw 4 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Vinod and Manoj going towards Kondli side. He further testified that after 2/3 minutes he also saw Harvinder going towards Gharoli side and on the next morning he came to know that Vinod had been murdered.
8. PW2 Shri Shailender has testified that on 10.11.2003, around 9 p.m., he was coming back to Kondli at his home after his duty and when he was just crossing the park near Smitiri Van, he saw Harvinder, Vinod and Manoj getting down from rickshaw and started going towards the park. He further testified that on the next morning he came to know that deceased had been murdered.
9. PW3 Shri Harish Kumar and PW4 Shri Ravi have not supported the case of the prosecution and were declared hostile at the request of Ld. Public Prosecutor.
10. PW5 Const. Kailash Yadav has testified that on 29.12.2003, he took exhibits of this case vide RC No.149/21 and 150/21 to FSL Malviya Nagar from malkhana and deposited the same there.
11. PW6 Const. Sanjay Nagar has testified about the manner in which the investigation was conducted in his presence.
12. PW7 Dr. A.K.Verma has testified that on 12.11.2003, he examined patients Manoj and Harvinder Singh. He proved their MLCs 5 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Ex.PW7/A and Ex.PW7/B respectively.
13. PW8 Shri Ramesh Chand has testified that on 10.11.2003, around 6.30 p.m., he came back to his house after his duty and saw his son Vinod Kumar standing at the gate of the house. That in the meantime, a boy namely Manoj Kumar asked his son Vinod Kumar to go to the house of Harshvardhan to listen songs and took his son Vinod Kumar to the house of Harshvardhan which was in the vicinity. He further testified that after some time he left house for purchasing vegetables and when he passed through the house of Harshvardhan, he saw four boys namely Nagender Singh, Harvinder Singh, Dharmender and Harshvardhan and his son Vinod. He testified that after purchasing the vegetables, he returned to his home and prepared food. That back on the way home when he called his son Vinod for taking food, his son Vinod Kumar was not there. He testified that thereafter he searched his son Vinod here and there but could not find him till the morning of 11.11.2003. He testified that around 9.30 a.m., when he was going to lodge a report to P.S. regarding missing of his son, police officials met him at the gate of his house and took him to Smiriti Van near SFS Flats, Mayur Vihar PhaseIII, where he found his son Vinod lying dead. He proved his statement Ex.PW8/A. 6 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar He further testified that police lifted sample earth, blood control earth and blood from the spot vide memos Ex.PW8/B to Ex.PW8/D. He proved the seizure memo of purse containing some visiting cards and amount of Rs.31/ as Ex.PW8/E. He further testified that on 12.11.2003, the statement regarding identification of the dead body was recorded by the police (Ex.PW8/F). He proved receipt Ex.PW8/G regarding receiving of dead body
14. PW9 H.C.Rambir Singh has testified that on 11.11.2003, around 11.20 a.m., on receipt of ruqqa Ex.PW9/A sent by Inspector Jagdish Prasad, brought by Const. Sanjay Nagar, he recorded formal FIR of this case. He has proved carbon copy of FIR as Ex.PW9/B. He has also proved his endorsement over the ruqqa, Ex.PW9/C. He further testified that on the same day around 9.13 a.m., he received an information regarding lying of dead body near Smiriti Van. He recorded the said information vide DD NO.13 A and proved copy of the same as Ex.PW9/D.
15. PW10 Const. Shiv Om has testified that on 11.11.2003. around 10 a.m., he was summoned by the police of PS New Ashok Nagar and he alongwith crime team officials , headed by SI Itender Swaroop reached the spot i.e. near SFS Flats, Mayur Vihar, PhaseIII around 7 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar 10.30 a.m. and took 18 snaps of dead body from different angles. He proved the developed photographs as Ex.PW10/A1 o A18 and its negatives as Ex.PW10/B1 to B18.
16. PW11 SI Mahesh Kumar has testified that on 11.12.2003, he reached the spot i.e. Smiriti Van, Mayur Vihar, PhaseIII on being summoned by Inspector Jagdish Prasad, Addl. SHO of PS New Ashok Nagar. He inspected the spot and took measurements and prepared rough notes. He further testified that on the basis of rough notes, he prepared scaled site plan Ex.PW11/A.
17. PW12 Inspector Jagdish Prasad has testified about the manner in which the investigation was conducted by him. He proved the statement of PW Ramesh Chand Ex.PW8/A, ruqqa Ex.PW9/A on the basis of which FIR Ex.PW9/B was registered. He prepared site plan of the spot Ex.PW12/A, lifted samples of blood stained earth and earth control from the spot and sealed the same into separate pullandas by affixing the seal of J.P. and seized the same vide memo Ex.PW8/B, Ex.PW8/C and Ex.PW8/D. He recorded the statements of witnesses, filled death report form Ex.PW12/B and sent the dead body to mortuary of LBS Hospital. He further testified that on 12.11.2003, he prepared brief facts Ex.PW12/C and requested autopsy surgeon to 8 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar conduct the postmortem on the dead body of Vinod Kumar vide his request Ex.PW12/D. He further testified that he recorded the statements of Sh. Dayanand Kain and Ramesh Chander Ex.PW12/E and Ex.PW8/F, arrested accused Manoj Kumar (who is facing trial before Juvenile Justice Board) and recorded his disclosure statement Ex.PW12/F in which he disclosed the name of his associate as Harvinder Singh @ Pappu. He further testified that accused Manoj Kumar, in pursuance of his disclosure statement, led the police party to his house i.e. D16/1, Harijan Basti, Kondly and produced a T shirt of black colour having gray colour sleeve, an underwear having strips and noticed blood spots on both the clothes, which were converted into a cloth parcel by affixing the seal of J.P. and seized the same vide memo Ex.PW12/G. He further testified that on the pointing out of accused Manoj Kumar, he arrested accused Harvinder Singh from a street in Kondli vide arrest memo Ex.PW12/H, conducted his personal search vide memo Ex.PW12/J and recorded his disclosure statement Ex.PW12/K. He further testified that accused Harvinder Singh led the police party to his house located at D14/1, Harijan Basti, Budh Vihar, Kondli and got recovered a T shirt and dagger having blood spot over it, prepared the sketch of dagger Ex.PW12/M, sealed the dagger into 9 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar a cloth parcel with the seal of J.P. and seized the same vide memo Ex.PW12/N. He further testified that he recorded the statements of witnesses Harish, Ravi, Raj Kumar and Shailender, took the viscera box and clothes, preserved by the doctor, into possession vide memo Ex.PW12/P, collected the photographs, recorded statement of photographer Shiv Om, collected postmortem report, got the accused persons medically examined, collected their MLCs Ex.PW7/A and Ex.PW7/B, sent the exhibits of this case to FSL on 29.11.2003 through Kailash and after completion of investigation, got the accused persons challaned.
18. PW13 Const. Navnit has testified that on 11.11.2003, around 1 p.m., he received the copies of FIR to deliver the same to Joint C.P., area M.M. and DCP of the area and accordingly, he delivered the special reports to the concerned officials.
19. PW14 SI Ram Prasad has testified about the manner in which the investigation was conducted in his presence. He has also deposed on the similar lines as deposed by PW12 Inspector Jagdish Prasad.
20. PW15 Dr. L.C.Gupta, has testified that on 12.11.2003, he conducted the postmortem on the dead body of Shri Vinod Kumar vide P.M. Report 268/2003 and proved the same as Ex.PW15/A. He further 10 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar testified that on 18.12.2003, a weapon of offence was submitted to him for opinion. He proved his opinion regarding the weapon of offence vide Ex.PW15/B.
21. PW16 Dr. Vinay Kumar Singh has testified that on 13.11.2003, injured Harvinder Singh @ Appu was produced before him. He has proved the MLC as Ex.PW7/B.
22. Statement of the accused was recorded under Section 313 Cr.P.C without oath in order to give an opportunity to the accused to explain the circumstances appearing in evidence against him. Accused has submitted that Vinod Kumar deceased was vagabond who used to be in company of bad characters and also used to tease girls. That deceased was friend and close associate of Vinod Kumar, bad character of the area. That one and half month prior to this incident, some stabbing incident had taken place in which Vinod B.C. received injuries from hands of Jinda @ Ganja @ Montu and his associates. That Ramesh Chand complainant had approached him and asked him to become a witness in his favour against Jinda @ Ganja. That when he declined to become a witness, Ramesh Chand got enraged and threatened to involve him in false case and subsequently, he got him falsely implicated in the present case in collusion with police.
11 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
23. Arguments were heard at the bar. Sh. P.L. Behl, Ld. Adv. for the accused has vehemently argued that prosecution has failed to establish its case beyond the shadow of reasonable doubt. That chain of circumstantial evidence stands broken at many places; That witnesses of last scene are not at all credit worthy and it cannot be said from the testimonies of PW1 Sh. Raj Kumar, PW2 Sh. Shailender, PW3 Harish Kumar, PW4 Sh. Ravi and PW8 Sh. Ramesh Chand, that they had seen accused Harvinder in the company of the deceased and hence the story of the prosecution dashes to the ground. He has also argued that no motive has been proved in this case by the prosecution and this again breaks the chain. That recovery of dagger and blood stained clothes is not believable, PW12 Inspector Jagdish and PW14 SI Ram Prasad have contradicted themselves irreconcilably, their testimonies are not believable, no compliance of section 100 (4) and 165 Cr. PC has been made, I.O has not carried out the investigation on the lines of the disclosure statement, no alcohol was found in the stomach of the deceased and no smell was coming from his mouth and the same demolishes the story of consuming of liquor. That conduct attributed to the accused persons in the disclosure statement is not believable. That testimony 12 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar of PW15 Dr. L.C. Gupta, who has testified that two weapon of offences were used goes to give a final blow to the case of the prosecution. That even if recovery of dagger and blood stained clothes is presumed to have been effected still the prosecution cannot be said to have connected the accused with the commission of the offence. Ld. Defence counsel has placed his reliance on the following judgments:
(i)2009 (3) JCC 1760 of Hon'ble High Court of Delhi, Jahid @ Lambu Vs State (GNCT of Delhi).
(ii) 2009 (2) JCC 1206 of Hon'ble High Court of Delhi, Jahid @ Kallo Passi Vs State.
(iii) 2009 (1) C.C. Cases (SC) 181, of Hon'ble Supreme Court of India, Arun Bhakta @ Thulu Vs State of West Bengal.
(iv) 2009 (2) JCC 1410 of Hon'ble High Court of Delhi, A.K. Jaison Vs State.
(v) 2003 (3) JCC 2436 of Hon'ble High Court of Delhi, Sohan Sahai Vs State.
(vi) 2009 (3) JCC 2428 of Hon'ble High Court of Delhi, Bududdin Vs State.
(vii)1999 (2) JCC (Delhi) 496, of Hon'ble High Court of Delhi, State Vs Chotey Lal & Others.
(viii)2008 (4) C.C. Cases (HC) 373, of Hon'ble High Court of Delhi, Liyakat Hussain Vs State.
(ix) 2008 (3) C.C. Cases (SC) 332, of Hon'ble Supreme Court of India, Venkatesan Vs State of Tamil Nadu.
13 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
(x) 2008 (1) C.C. Cases (SC) 226 of Hon'ble Supreme Court of India, Sattatiya @ Satish Rajanna Kartalla Vs State of Maharashtra.
(xi) IV (2008) DLT (CRL) 328 (SC) of the Hon'ble Supreme Court of India, Krishnan Vs State.
(xii)2001 (2) JCC (Delhi) 330, of Hon'ble High Court of Delhi, Mohd.
Sabir & Anil Khanna Vs. State (NCT of Delhi).
(xiii)1999 (1) Crimes 349, of Hon'ble Bombay High Court (DB) Natha Kondaji Nawale Vs Govind Rama Nawale.\
(xiv)Subhash Chand Vs State of Rajasthan (SC), of the Hon'ble Supreme Court of India.
(xv)III (1999) CCR 658 (DB), of Hon'ble Orissa High Court, Paulusoram Vs State of Orissa.
(xvi)2005 (3) Criminal Court Cases 828 (P &H) of Hon'ble Punjab and Haryana High Court, Raj Kumar Vs State of Haryana. (xvii)2005 (3) Crimes 468 of the Hon'ble Madhya Pradesh High Court (DB), Kammoda Vs State.
(xviii) II (1996) CCR 102 (DB) of the Hon'ble Bombay High Court, Fakirappa Vs State.
(xix)2005 (3) Crimes 563 of the Hon'ble Bombay High Court (DB), Nandu Vs State of Maharashtra.
24. Ld. Public prosecutor on the other hand has refuted the arguments, advanced by Ld. Defence counsel and has submitted that prosecution has established its case beyond the shadow of reasonable doubt and the contradictions pointed out by Ld. Defence counsel are not the material contradictions. That such 14 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar like contradictions are bound to take place, when the witnesses come to depose after a long lapse of time.
25. I have carefully perused the records of the case and considered the submissions. I am not in consonance with Ld. Public Prosecutor as in my considered view, prosecution has failed to prove its case beyond the shadow of reasonable doubt. No doubt, a strong suspicion arises about the involvement of the accused in the commission of the offence, but it cannot be said without hitch that it was the accused and accused alone, who committed the murder of deceased. In view of this, being the situation, I have been constrained to acquit the accused, as suspicion howsoever strong it may be, cannot take place of legal proof. My reasons of differing with Ld. PP follow.
26. First and foremost reason is that last scene evidence has not stood the test of crossexamination. PW1 Sh. Raj Kumar in examinationinchief itself has given a shaky version. He has testified that on 10.11.2003, at about 7:30 p.m, he had seen Vinod (deceased) and Manoj going towards Kondli side. He has testified that after 24 minutes, he saw Harvinder going towards Ghatoli (it should be Gharoli) side. This witness also testified that he came 15 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar to know next day morning that deceased had been murdered.
27. The above discussed portion is the complete summary of examinationinchief of PW1. From this examinationinchief, it cannot be said that accused Harvinder was in the company of the deceased. So, testimony of this witness can be discarded qua last scene evidence only on this account.
28. Besides this being the situation in examination in chief, this witness has been completely exposed during cross examination and I have no hesitation to observe that there is force in the arguments of Ld. Defence counsel that this witness has deposed at the instance of father of deceased. This witness during cross examination admitted that Kondli and Gharoli are in opposite directions. Case of the prosecution on the other hand was that accused Harvinder, accused Manoj and deceased Vinod were going together in the same direction. So this fortifies my view about the possibility of this witness being a got up witness.
29. During further crossexamination PW1 admitted that accused Harvinder used to go towards Gharoli Dairy Farm almost daily and used to pass from the front of his shop. He also admitted that lot of people used the way used by accused Harvinder to go 16 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar to Ghadoli Dairy Farm. In view of this admission, it can be said that witness might have told about going of accused to Ghadoli Dairy Farm falsely on account of inadvertence arising due to daily going of accused Harvinder towards Ghadoli Dairy Farm. This witness was crossexamined further and his memory was tested by the defence. This witness admitted that he had not noted the date of 10.11.2003 in any diary or on any paper and he remembered it by memory. In the next sentence this witness was not in a position to tell the date of Holi, Diwali and Dussehra falling in the year 2003. This raises a dent in the credibility of this P.W.
30. PW1 admitted that he was knowing Sh. Ramesh Chand, father of the deceased for last 15 years. He also admitted that Sh. Ramesh Chand was his neighbour and he was on good visiting terms with Sh. Ramesh Chand since last 16 years. He admitted that Sh. Ramesh Chand and his family had been purchasing clothes from him during the last 15 years, sometimes on credit and sometimes by cash. When, this version was read in juxta position with the crossexamination of PW8 Sh. Ramesh Chand, who is the father of the deceased and neighbour of this witness, it was revealed that either PW1 was telling a lie or PW8 17 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar was telling a lie and it has to be held that accused has been in a position to raise the plausibility of the version of the witnesses being untrue. I deem it pertinent to mention that accused is required to raise the possibility only by way of standard of preponderance of possibility. For the sake of explaining, I am referring the testimony of PW8, concerning acquaintance of PW1 & PW8. PW8 on 03.09.2007, in his crossexamination at page 5 on the top testified that he does not know as to where PW1 Sh. Raj Kumar resides. He denied that PW1 Sh. Raj Kumar runs a cloth shop. He denies that he purchased clothes from the shop of PW1 on credit. He denied that he was on visiting terms with PW1 Sh. Raj Kumar, since long. The juxta posed reading of testimony of PW1 & PW8 inclines me to observe that PW1 & PW8 are concealing material facts from the court and I deem it expedient to reject the version of PW1 & PW8 concerning last scene.
31. Not only this, PW1 during crossexamination stands exposed further, conduct of this witness not being the conduct of a reasonable prudent man. This witness in examinationinchief testified that he came to know about the murder of deceased Vinod in the morning of 11.11.2003 (last line of examinationin 18 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar chief of PW1 dt. 04.05.2004). In crossexamination unnatural conduct of this witness becomes evident, as he testified that whatever statement he had made in the court, regarding facts of this case was made by him for the first time in court only. That prior to that he had not made any statement to the police at any point of time (crossexamination dt. 04.06.2004, first page, 8th to 12th line from bottom to top). This witness was not in a position to tell name of any of the public person, who had passed from the front of his shop on 10.11.2003. This witness testified that one Hari Prasad, his customer was present at his shop, when Manoj and deceased and Harvinder had passed from in front of his shop. This witness admitted categorically that he had learnt about the murder of Vinod around 9:00 a.m. Firstly, he stated that he came to know about it, when he opened his shop. In the next breath, he testified that he came to know about it at his house. In the next breath he admitted that he had never met Ramesh Chand after incident of 10.11.2003. These vacillating versions categorically prove the unnatural conduct of this witness. When, PW Ramesh Chand was his neighbour, customer and well acquainted person with whom he was having visiting terms, then 19 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar conduct of not meeting Sh. Ramesh Chand even after the murder of his son leads only to one conclusion and the conclusion is that this witness is not a witness worthy of belief and I have no hesitation in rejecting the testimony of PW1 Sh. Raj Kumar. At this juncture itself, I deem it expedient to observe that contradictory version of PW1 has not only made the testimony of PW1 unreliable, but it has given a very very damaging dent to the credit worthiness of the testimony of PW8 Sh. Ramesh Chand as well.
32. Next witness produced by the prosecution concerning last scene is PW2 Sh. Shailender. This witness has also not stood true on the touchstone of crossexamination and I have no hesitation to observe that this witness has deposed at the instance of PW8 Sh. Ramesh Chand. In examinationinchief, this witness testified to the following effect:
"in November, 2003, I was working in Noida, Sector59, at Ajanta Fan Factory. On 10.11.2003, at about 9:00 p.m, I was coming back to Kondli at my home after my duty. When I was just crossing the park at/ near Simriti Van on foot, I saw Harvinder, Vinod and Manoj came down from rickshaw and started going to 20 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar park. Out of three, Harvinder, accused is present today in the court. Thereafter, I went to my room. On the next day, in the morning time, I went to my duty and when in the evening, I came back to my room, I came to learnt that Vinod had been murdered. I told this fact to the police".
33. I have extracted the examinationinchief purposely for the reason that in crossexamination, this witness has been exposed like anything. Had the crossexamination not been there, then this was a case in which it could have been said that the last scene evidence was there in the case. In crossexamination, this witness gave very strange disclosures, which have compelled me to observe that this witness is not a witness, who can be relied to base conviction.
34. During crossexamination PW2 testified that his factory was located in Sector59, Noida on plot No. 357. (As per the case of the prosecution, factory was located in Sector69, Noida). This witness admitted that Ex.PW2/DA was neither read over to him nor explained to him. He also admitted that he had not gone through the same. This witness admitted categorically that he had no documentary proof to show that he was working in 21 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar the Ajanta Fan Factory. Defence had requested for summoning of the records from the factory. Summons were issued, which came unserved. Thereafter, SHO Sh. Subhash Thukral, PS New Ashok Nagar and I.O Inspector Jagdish Prasad were sent to Noida. The factory was not found at the address given by this witness. Efforts were made to get this PW2 Sh. Shailender served so that he could have been sent to Ajanta Fan Factory, but this witness had left the given address as per the report, dt. 08.11.2009 of Inspector Jagdish Prasad, I.O of the case. Inspector Jagdish Prasad reported that Shailender used to reside as a tenant at D21/1 and had left the address. Mr. Randhir and Smt. Ramo also stated to Inspector Jagdish Prasad about non availability of PW Shailender. Therefore, version of the defence that PW2 never worked in Ajanta Fan Factory stands probablised.
35. Even, if it is assumed that version of this witness concerning working in Ajanta Fan Factory is correct (although I have no hitch in my mind to observe that his version in this regard is incorrect) still further disclosures of PW2 in crossexamination go to strike at the root of the credibility of this witness. This witness during crossexamination was asked about the reason as 22 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar to why he had not informed the father of the deceased about the murder of Vinod, this witness gave very inconsistent replies and from the inconsistent replies an inference is deducible that this witness is not a witness worthy of credence. In his cross examination dt. 04.06.2004, (page 3 last para) he testified that on 11.11.2003, he had returned to his house at about 1:00 pm from his job. He has testified that there was a crowd in the locality and he came to know after reaching in the crowd about the murder of Vinod. He testified that he did not notice Ramesh Chand in the crowd. He testified that he had gone to the house of Ramesh Chand on that day, after learning about the murder of Vinod. This is not at all the case of the prosecution put forth in its report u/s 173 Cr PC and the materials appended with the same. As per the version of the prosecution this witness gave the statement to I.O. On 14.11.2003 and has not met PW Ramesh Chand on 11.11.2003.
36. Besides this defect conduct of this witness is very very unnatural and strikes at the root of the credibility of the witness as well as at the credibility of the case of the prosecution. This witness at page 1st of his crossexamination, last para, dt.
23 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar 04.06.2004 had admitted that he was knowing the deceased and his father since 45 years prior to the incident, being the neighbour. He admits that Vinod was a student. In view of the witness being a neighbour and having seen deceased along with accused in the night of one day prior to 11.11.2003, the natural conduct of this witness after coming to know from the crowd about the murder of the deceased, would have been to inform Sh. Ramesh Chand and inform about seeing by him of Vinod and accused persons together. This witness has not done so and this makes the version of this witness unbelievable.
37. This witness tried to give false explanations about his conduct and was exposed. Firstly, this witness took the plea that his son was sick at that time. When, this witness was confronted with the fact that he had deposed about the sickness of his son for the first time in the court, he denied the suggestion that his son was sick. He was further crossexamined and he admitted that his wife was present in the house on 11.11.2003, when he came to his house. When, this witness was asked as to why he did not send his wife to inform the family of Ramesh Chand about he having seen deceased with accused, then this witness again 24 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar stated that his son was sick and he had taken his son to LBS Hospital. He was also asked as to why he did not send any of his neighbour to the house of Ramesh Chand, he did not gave any explanation and only stated that his son was sick. Seeing that he was completely cornered, he took a somersault and stated that his wife was sick and his son was not sick on 11.11.2003. This shows that this witness is not a witness worthy of belief.
38. This witness was cross examined w.r.t illness of wife.
During further cross examination he testified that he had taken his wife to LBS Hospital on 11.11.2003, as she was pregnant and it was a delivery case. He testified that his wife delivered a child after 89 days. That she was discharged from the hospital on 13.11.2003 in noon time. He was asked as to whether he had informed control room or any police authority about the incident of 10.11.2003 on 13.11.2003, when his wife was discharged from the hospital. This witness replied in the negative. This witness admitted that he had reached his house along with his wife at 3:30 p.m on 13.11.2003. He admitted that he did not go to the house of Ramesh Chand on 13.11.2003 after coming from hospital for getting his statement recorded. He also admitted that he did not 25 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar inform the police about the facts told by him today in the court.
39. The question arises as to whether such a witness can be believed. In my considered view the answer is an emphatic no.
40. In addition to above, this witness gave a version which is not inconsonance with the case of the prosecution about how he met the police. This witness stated that on 14.11.2003, the police officials were making inquiry in the gali in the evening time, when he met them. This witness also stated that he did not disclose the incident of 10.11.2003 to anyone till evening of 14.11.2003, when police met him. This witness testified that police officials were sitting in the house of the father of the deceased, namely, Sh. Ramesh Chand. This witness also stated that he was sitting outside his house, when he noticed the police making inquiry. He testified that when he reached house of Ramesh Chand apart from relations, almost entire locality people were present there. In the next breath, this witness stated that he was watching arrival of police at the house of Ramesh Chand from his house and his statement was recorded outside his house. Again the question arises as to whether such a vacillating witness can be relied. Answer is again no.
26 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
41. This witness was asked about the documentary proof of LBS Hospital about the admission of his wife in the hospital from 11.11.2003 to 13.11.2003. This witness denied that he can produce the record in this regard. His crossexamination was deferred on 04.06.2004 and was thereafter carried out on 03.09.2004. This witness gave the name of his wife as Sangeeta on 03.09.2004. He admitted that he had signed on the admission register. He did not tell the ward number or bed number of his wife. He did not tell the name of the doctor. He testified that doctor had obtained his signatures and given the discharge report. He stated that he was not having any documentary proof. He admitted that he remained with his wife during her admission in the hospital. He was asked about any written request, having been sent by him to his employer. This witness testified that he had informed his employer through his colleague.
42. I am pausing here for a moment for the reason that the version about the admission of Sangeeta was tested by the defence, by summoning the records from the LBS Hospital. Not only for the period 13.11.2003, but for the period 26.10.2003 to 31.12.2003. DW1 Smt. Nandni Pandey, record clerk, testified that 27 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar no Sangeeta was admitted in the hospital. She also stated that name of Sangeeta was neither there in OPD register nor in CR register. Thus, version of PW2 Sh. Shailender about admission of his wife is false and this witness was fully exposed, when he feigned the sickness of his child at the first instance as an excuse for not informing Sh. Ramesh Chand and at second time about his wife. The old age saying " one has to tell 100 lies in order to conceal one truth", has proved its worth once again. Thus, I have no hesitation to observe that this witness is not a witness worthy of belief and stands fully exposed.
43. Testimony of PW2 concerning last scene evidence is also not inspiring confidence as the version of this witness in this regard does not appear probable. This witness testified that he was using only one way. This witness admitted that there were three ways for coming from Sector59 Noida to Harijan Basti, Kondli. This witness was not in a position to tell as to which was the shortest root. It is the admitted version of this witness that he was coming and going to his factory on foot. Natural conduct of a person, when he goes on foot, is to follow the shortest route. For that purpose, one will try to know all the routes and then shall start 28 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar following the shortest route. It has not been so done by this witness and this strikes at the credibility of the version of this witness concerning last scene evidence.
44. Version of PW2 concerning the height of the boundary wall is not in consonance with the version of other witnesses. This witness was not in a position to give the description of the rickshaw puller from which the deceased and accused had alighted in front of this witness. Natural conduct on the part of this witness would have been to ask from deceased Vinod as to where and why he was going to the park in the night despite the fact that the park was pitch dark and had pitches. This witness gave a false explanation to the effect that it did not look to him unnatural when deceased was going towards Samiriti Van at 9:00 p.m. This witness had to admit that he deposed in the court for the first time that deceased and accused used to go together as a matter of routine. He was not in a position to tell the colour of the Tshirt. It is pertinent to note that deceased as per seizure memo of clothes was wearing a sky colour shirt and not a Tshirt. He was not in a position to tell about the colour of the clothes, worn by the 29 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar accused at that time. This witness tried to get rid of the situation by testifying that he had seen the deceased and accused only for a minute or two.
45. The above going discussion of the testimony of PW2 leaves no hesitation in my mind to observe that this witness is not a witness worthy of credence and I have no hesitation in discarding his testimony. This witness was the anchor witness of last scene and his testimony being demolished, chain of circumstantial evidence stands broken.
46. Next testimonies in the chain of last scene evidence are that of PW3 Sh. Harish Kumar and PW4 Sh. Ravi, who are real brothers. Both these witnesses have not supported the case of the prosecution and were declared hostile. Both these witnesses admitted that after the murder of deceased, they were taken by the police to the PS in the evening of 11.11.2003 and they were let off thereafter. This fact in itself is sufficient to discard the testimony of these witnesses, independent of the fact that these witnesses have not supported the case of the prosecution.
47. On merits also, testimonies of PW3 & PW4 are at variance 30 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar and that is another reason for not placing reliance on the versions of these witnesses, concerning accused Harvinder coming to them on the intervening night of 10/11.11.2003. PW3 has testified that accused Harvinder @ Appu had come to his shop and had left his file there. This witness testified that accused Harvinder had come back at his shop at about 9:45 p.m and had taken back the file. Firstly, the accused, in natural circumstances, would not have come to take back his file after murdering deceased and story appears to be concocted one on the face of it. Secondly, PW3 categorically testified that accused Harvinder alone had come to take back the file. This version is in contrast with the version of PW4 as well as with the version of the prosecution case, put forth as per which Harvinder and Manoj had come together. PW3 denied that accused Harvinder, at the time of taking the file back was accompanied by Manoj Kumar (another coaccused facing trial before Juvenile Justice Board). PW3 did not support the version of the prosecution concerning asking by Harvinder from PW3 as to whether any telephone call was received from the house of the Harvinder. This witness has also not supported the version of the prosecution, attributed to this witness in the 31 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar statement U/s 161 Cr. PC to the effect that later on this witness had come to know about deceased Vinod Kumar, having been murdered by accused Harvinder @ Appu and Manoj.
48. In crossexamination this witness was not in a position to tell as to how he was remembering the date of 10.11.2003 from memory. This witness, on the lines of PW1 & PW2, was not in a position to tell about the dates on which festival of Holi had fallen. Another aspect of the testimony of this witness is that no investigation was carried out by the police about the file. It has gone unexplained as to why the file was not searched. Absence of investigation on the part of the prosecution about the file speaks volumes about the concoctedness of the last scene evidence. This witness admitted that he had told the police about the file.
49. PW4 is non else, but the brother of PW3. This witness has not testified the facts in consonance with the facts testified by PW3. This witness has testified that Harvinder lifted an empty polythene of 5 Kgs from his shop. He also testified that Harvinder started talking with his brother Harish. This witness also testified that at that time accused Manoj was with them. This version is in 32 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar complete contrast with the version of PW3. This witness was crossexamined by the prosecution and denied that on 10.11.2003 at about 9:45 p.m, accused had come to his shop along with Manoj. Denial of this suggestion demolishes the version of PW4 in examinationinchief about coming of Harvinder and Manoj on his shop. This witness also denied the suggestion that accused Harvinder had asked for a file from his brother and he was given a file by him. This witness denied Ex.PW4/A having been made by him which was attributed to this witness. Thus, crossexamination by the state, of this witness, leaves no hesitation in my mind that this witness leads the case of the prosecution nowhere.
50. During crossexamination, this witness admitted that he and his brother were taken to the PS. He admitted that for two days, they were kept in the PS and were interrogated continuously. This admission in itself strikes at the root of the credibility of PW3 & PW4.
51. Thus the above discussed alleged independent witnesses of last scene have not supported the case of the prosecution concerning last scene theory of the prosecution or in the alternative have not stood true on the touchstone of cross 33 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar examination.
52. PW8 Sh. Ramesh Chand is the next witness who has improved upon his version from his version in the case initially put forth by the prosecution. This witness in his testimony before the court on 24.4.2006 has tried to become a witness of last scene and stands completely exposed. Testimony of this witness gives rise to the possibility that PW1, PW2, PW3 and PW4 were requested by this witness to become the witnesses of last scene. As per version of the prosecution, this witness was not having doubt on any person upto 12.11.2003. It is categorically recorded in the statement of this witness u/s 161 Cr PC to the effect that he was having no suspicion on anyone upto that date. If the version of this witness is believed as recorded u/s 161 Cr PC, then there was no occasion for this witness to testify that he had seen his son Vinod on 10.11.2003 at about 6.30 pm standing at the gate of his house. He had also no occasion to testify that Manoj Kumar came there and he asked his son (deceased) to go to the house of Harsvardhan to listen the songs and Manoj Kumar had taken the deceased to the house of Harshvardhan. There was no occasion for this witness to testify that he had seen Nagender 34 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Singh, Harvinder Singh, Dharmender, Harshvardhan and Vinod at the house of Harshvardhan when he left his house for purchasing the vegetables. He had no occasion to testify that he had called his son Vinod Kumar for taking food but his son Vinod Kumar was not there along with the above named boys. He had no occasion to testify that he had searched his son Vinod here and there and his son could not be found till morning of 11.11.03.
53. This witness was confronted with his version in Ex.PW8/A and it is there on the records of the case that no such version was put forth by PW8 Sh. Ramesh Chand. Had the version been true, this witness must have told about this aspect to the police officials particularly IO. IO of the case has not testified on the lines of this witness in this regard. For this reason I am constrained to observe that improvement by PW8 Sh. Ramesh Chand cannot be considered as true and it has to be observed that PW8 Sh. Ramesh Chand had not seen his son Vinod in the company of Nagender Singh, Harvinder Singh, Dharmender, Harshvardhan on 10.11.03. It has also to be observed that this witness had not seen accused Manoj Kumar asking the deceased to go to the house of Harshvardhan to listen the songs. Had this been the situation, 35 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar then first doubt of PW8 Sh. Ramesh Chand would have gone on these boys and he must have placed his suspicion on the boys on the first available opportunity.
54. I am constrained to observe that PW8 is not a witness of last scene. Another reason is the report Ex.PW8/A in which there is mention of leaving of Vinod Kumar at 8.00 P.M but there is no mention as to in whose company he had been. Had the version of PW8 in examination in chief concerning his son having been called by Manoj and thereafter his son being in the company of above referred boys been true then this fact must have figured in Ex.PW8/A. As it has not so figured the only conclusion which is deducible is that PW8 has failed to prove that his son was in the company of coaccused Manoj what to talk of to be in the company of accused Harvinder.
55. Version of PW8 during cross examination goes to show that reliance on the testimony of this witness cannot be placed for the reason that his version of examination in chief is not found there in the records of the prosecution case. In Ex.PW8/A this witness has given the time of leaving of the house by the deceased at 8.00 PM whereas in his testimony before the court 36 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar this witness has given the time as around 6.30 PM. This is indicative of the fact that PW8 is changing his versions. During cross examination this witness testified that he had narrated before Inspector Jagdish that he had seen his son Vinod for the last time in the company of the boys referred above. He has testified that these facts were recorded by the IO Inspector Jagdish Prasad. However, PW Inspector Jagdish Prasad does not support this witness in this regard. He has testified that Ramesh Chand had not named any particular person even after recording the statement Ex.PW8/A. He categorically testified that Ramesh Chand had contacted him in the PS around 2.00 or 3.00 PM on 11.11.2003. It was the duty of the IO to record the statement of Ramesh in the manner as deposed by PW8 in court, if it was true. Non doing of so by the IO leads to two eventualities. First eventuality is that PW8 did not tell about these aspects at all and later on improved his version in the court. Second eventuality is that IO did not record his statement correctly. In both the eventualities it is the accused who is going to be benefited. In case of second eventuality it is the IO who has faulted in this duty.
56. PW8 was duly confronted with his version given before the 37 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar court on 24.4.06, which was in addition to Ex.PW8/A. This witness testified that he had told the police in his statement dated 11.11.2003 that he had seen deceased in the company of Manoj Kumar. This fact is not found mentioned in Ex.PW8/A. This witness testified that he had stated before the police that when he was going to purchase vegetables he had seen his son in the company of Nagender, Harshvardhan, Dharmender and Manoj. On confrontation this aspect was also not found in ex.PW8/A. This witness was also confronted with his version concerning taking away by Manoj of deceased and thereafter deceased being in the company of Dharmender, Nagender and accused. On confrontation this was also not found in the version of this witness in Ex.PW8/A as well as supplementary statement. So this witness cannot be relied qua his last scene theory.
57. Not only this PW8 was exposed further when he deposed contrary to the version of PW1 to the effect that Raj Kumar does not run a cloth shop. He also testified that he does not know as to where Rajkumar PW1 resides. He denied that he used to purchase clothes from the shop of PW1 Raj Kumar on credit. He denied that he was on visiting terms with Raj Kumar since long. All 38 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar these facts contradict the versions of PW1. The contradictory versions make the testimonies of both the witnesses shaky and unreliable.
58. In his testimony dated 03.9.07 PW8 denied his awareness about Vinod BC. He also denied about an altercation between Vinod BC on one hand and Jinda @ Ganja @ Motu on the other hand. He testified that he had not stated before the police that about one and a half month prior to this incident an altercation had taken place between persons referred above in the presence of his son. When confronted with his statement Ex.PW8/DA it was found that in Ex.PW8/DA this witness had stated about the above mentioned facts. This again goes to show that it will not be appropriate to rely upon this witness.
59. According to the case of the prosecution as put forth in the report u/s 173 Cr PC and the materials appended with the same PW8 was not a witness of last scene at all and version of PW8 concerning last scene cannot be considered for this reason as well.
60. In view of above going discussion of testimonies of PW1, 39 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar PW2, PW3, PW4 and PW8, I have no hesitation to observe that last scene theory has dashed to the ground.
61. In view of the last scene evidence being not available to the prosecution, prosecution is left with the recovery of bloodstained clothes and weapon of offence in pursuance to the disclosure statement of accused persons.
62. Ld defence counsel Sh. P.L. Behl had argued to the effect that in case last scene evidence theory goes then the recovery even if it is accepted as gospel truth, cannot connect the accused with the offence of the murder. He submitted that in the absence of last scene evidence nexus of the accused with the murder of the deceased gets disconnected even in the presence of bloodstained clothes and weapon of offence having been recovered at the instance of accused in pursuance to his disclosure. He submitted that as far as blood grouping is concerned that cannot be said to be conclusive as clothes and weapon of offence may be containing the blood group of some other person. He has drawn my attention towards the aspect that prosecution has failed to bring on record the blood group of the deceased and in the absence of the blood group of the deceased 40 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar being there, existence of blood group 'A' on the clothes of deceased and accused and presence of blood group 'A' on the weapon of offence does not connect the accused with the commission of offence beyond the shadow of reasonable doubt on the ground that there are crores and crores of people with blood group 'A'.
63. I am in agreement with the submissions of Sh. Behl for the reason that no recovery of any article belonging to the deceased took place from the accused in pursuance to the disclosure statement which could have established the required nexus of accused and deceased in view of the peculiar facts of the case. The submission of Ld PP that recovery of blood stained clothes and weapon of offence took place very next day after the murder and the same is suggestive of the involvement of the accused is not tenable as far as establishment of required nexus is concerned. It is a different matter that it raises a strong suspicion about the involvement of the accused in the murder.
64. In this case I have no hesitation to observe that PW12 Inspector Jagdish and PW14 SI Ram Prasad have not proved the recovery from the accused to the hilt and I am inclined to 41 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar disbelieve their version.
65. The story put forth by PW12 Jagdish Prasad that one informer had met him at Kondli who told that Manoj Kumar was present near street no.1 Kondli is not appealable to reason. In such a short span secret informer could not have come to know the involvement of accused Manoj Kumar and the inference which arises is that PW12 has tried to conceal the true facts from the court.
66. The disclosure statement of accused Manoj Kumar is also not believable as a prudent man placed in the circumstances of accused Manoj would not have acted in the manner in which he has been shown to have acted. Accused Manoj as per his disclosure statement has stated that he along with accused Harvinder had been to the shop of PW Harish. This conduct of the accused is unnatural. This accused according to the case of the prosecution, has stated in disclosure statement that his T shirt was soaked in blood. He also stated that his underwear was also soaked in blood. He has also stated that clothes of accused Harvinder Singh were also soaked in blood. In this situation of the clothes of accused Harvinder and Manoj being blood soaked, 42 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar neither Manoj nor Harvinder would have taken the risk of going to the shop of Harish to take the file which was not so important. Blood soaked clothes of accused Harvinder and Manoj must have been noticed by PW Ravi and Harish which has not so happened and this shows the feign ness of disclosure statement. Non recovery of the file on the part of the prosecution adds another fatal blow to the veracity of the disclosure statement which is otherwise not admissible in evidence. It does not require mention that this being a document of the prosecution, can be used against the prosecution.
67. The version of the prosecution in the disclosure statement that after returning from the shop of Harish, they went to the Kondli river and Manoj threw his pant in the river. It does not appeal to reason that when pant was being thrown why Manoj did not threw his shirt. It also does not appeal to reason that why accused Harvinder did not threw the knife in the river when the blood could not be fully removed from it. No sane person would keep the weapon of offence at his house if he was having the opportunity to get rid of the same outside his house. Natural conduct on the part of accused Harvinder would have been to 43 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar throw the bloodstained knife as well as clothes in the river. PW4 has not noticed that accused Manoj was not wearing his paint at the time he saw him at his shop. As it has not so happened, I have no hesitation to observe that facts and events did not happen in the manner as put forth in the disclosure statement Ex.PW2/F.
68. Another reason to disbelieve the version of the prosecution is that in the disclosure statement it is the categorical case of the prosecution that deceased had eaten chicken. It is also the case of the prosecution that deceased had taken liquor as well as beer. Postmortem of the deceased was conducted on the next day. Chicken was not a thing which would have digested so soon. The doctor in postmortem report has observed that stomach was empty. No smell of alcohol has been observed by the doctor. These facts of stomach being empty and no smell of alcohol strike again at the veracity of the case of the prosecution.
69. Not only this, the motive as disclosed in the disclosure statement has not been brought on record. IO has not carried out the investigation on the lines of the motive as suggested in disclosure statement. IO has also not examined Tinku from whom 44 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar accused Harvinder had borrowed a knife on the pretext of cutting a chicken. IO has not examined Sushila and Madhu whom deceased had allegedly eve teased PW8 Sh. Ramesh Kumar has categorically testified that relations with the accused persons and their family were normal. This version of PW Ramesh is in contradiction with the version of prosecution in disclosure statement Ex.PW2/F and K. Had the version of eve teasing by deceased Vinod of Sushila and Madhu sisters of accused Harvinder and Manoj been true then PW8 Sh. Ramesh Chand would have definitely placed his suspicion on accused Manoj in Ex.PW8/A. So this aspect also goes against the prosecution.
70. Dereliction of duty on the part of the IO is writ large. It is also there for the reason that accused Harvinder and Manoj were not taken to liquor vend of Gharauli dairy farm for pointing out from where the liquor was purchased. Even if this aspect is ignored, the other aspects of non pointing out of the dhaba from which the chicken was purchased, non examination of the dhaba owner etc are very serious lapses on the part of the IO for which I am constrained to award the benefit of doubt to the accused as non carrying out of investigation on the abovementioned lines has 45 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar broken the chain of circumstantial evidence at many places.
71. Another reason which makes the recovery aspect shaky is that medical store from which bandaid was purchased by the accused was also not got pointed out what to talk of joining the owner of the medical store and its employees in investigation. This again gives another blow to the case of the prosecution.
72. IO has not joined the public witnesses at the time of recovery of the bloodstained clothes and weapon of offence. Disclosure statement of accused Manoj was recorded prior to the apprehension of the accused Harvinder. In these circumstances there was ample time with the IO to join some public persons at the time of apprehension of accused Harvinder and in the recovery. At the least he could have examined any person from the family of the PW8. As it has not been so done, recovery becomes full of suspicion. IO has not verified that the room from which the dagger was recovered was in exclusive possession of the accused.
73. Dr. L. C. Gupta has tacitly admitted that two weapon of 46 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar offences were used while inflicting the injury on the person of deceased. According to the theory put forth by the prosecution only one weapon was used. This again raises a very very serious doubt in the veracity of case of the prosecution. I deem it expedient to reproduce the relevant portions of postmortem report for the sake of proper appreciation : "On 12.11.2003 I conducted postmortem on deadbody of Shri Vinod Kumar. Following postmortem findings were revealed: The weared cloth pant, shirt, baniyan and underwear of the deceased, were stained with blood and there were cut marks to the corresponding incised would over the body. Rigor mortis was present all over the body, joints and postmortem staining was present faintly at back. Both eyes were semi opened and conjunctiva were pale. Mouth was closed.
Following antemortem injuries were present over the body:
(i) Four incised wounds were present at right hand dorsum. These were muscle deep to bone deep and 3 cm x 1 cm to 2 cm in length and that were placed horizentoobliquely and were tailing laterally.
(ii) Incised wound, 3 in number present at right side shoulder at its
47 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar latro frontal aspect. It was bone deep and was 7 cm x 2 cm in size and its tailing was towards lateral side.
(iii) Stab incised wound of size 2 cm x 1.5 cm x chest cavity deep preset at left side chest. It was present at anterior border of axilla at 4th inter costal space and it was of eleptical shape and there was a contusion around the margins.
(iv) One incised would (wound) at left side forearm present at its fronto lateral aspect. It was 2 cm x 1 cm x bone deep.
Total nine incised wounds varying in size between 2.5 cm to .75 cm x 3 cm to 1 cm x muscle deep to bone deep present at right shoulder all over.
(vi) Total four incised stab wound present at right supra chavicular region varying in size 2.5 cm to 1 cm and all were chest chavitity and they were eleptical in shape and their margins were contued.
(vii) One stab incised would (wound) present at right side chest in fourth inter costal spcace on frontal aspect. It was 2.5 cm x 1 cm x chese cavitity. It was eleptical shape and its margins were contued.
(viii) Four incised wound varying size between 7 cm x 4 cm to 2 cm x 1 cm present at right sub mendibular region. This was muscle deep and it tailing was towards outside.
48 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
(ix) One incised would present at through at its mid 1/3rd part at, right side lateral aspect. It was spinal code deep and all structures in between were also cut sharply. Its size 13 cm x 4 cm.
(x) Three incised wound present at right side palm. These were muscle deep to b one deep and 5 cm x 3 cm to 4 cm in size. Total four stab incised would present at right side chest mid 1/3rd part at back and these were eleptical in shape.
(xi) Four incised stab wound present at right side chest at its mid 1/3 back. These were 2.5 cm x 1 cm x cavity deep incised and eleptical in shape. Margins were contused.
(xii) Twelve incised wound present at distal 1/3 of neck at its back, these are were bone deep to muscle deep and tailing was towards right side laterally.
HEAD & NECK Head, brain, skull, mouth, tongue, b oth eyes shokets were normal.
CHEST: Both side cavity was full with blood and both lungs having multiple sharp cuts corresponding to the cut injuries present over the chest front and back.
49 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar HEART: There was a sharp cut at left side ventricle and that was in continuation to injury no. 7C.
ABDOMEN: Stomach was empty and healthy and there were multiple intestinal loops contused. Rest were NAD.
Opinion of cause of death was given was shock resulting from poli trauma to neck and internal chest organs which were sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature and same were caused by cutting edged weapon. Mode of death was homicide and where involvement of more two person cannot be ruled out.
Time since death was about 1 ½ day at the time of postmortem examination. The postmortem report is Ex.PW15/A which is in my hand and bears my signature at point A. That subsequently on 18.12.2003, a weapon of offence allegedly used was submitted to me by the police in a sealed parcel duly sealed with seal of J.P., along with the clothes worn by the deceased and preserved by me after the postmortem, with the seal of LBSH DFMT. Digram of the weapon was also drawn by me by tracing in actual size 50 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar and after examination it was opined that injury no. 7 A, B, D, E, H, I, J and L as mentioned in the postmortem could be possible by this weapon or like weapon. My opinion to this fact is Ex.PW15/B which is in my hand and bears my signatures at point A. I can identify the weapon if shown to me which was produced before me for opinion.
At this stage a sealed parcel duly sealed with the court is opened and found to contain a dagger. I identify the dagger Ex.P12 and it is the same which was produced before me for opinion diagram of which was prepared by me on Ex.PW15/B."
74. During cross examination this witness admitted that no alcohol was found in the stomach. He also admitted that no alcoholic smell was found at the time of examination of body from the mouth of the deceased. He admitted that conclusive opinion that injuries were caused by the same weapon could not have been given in the present case. This witness admitted that margins were found as contused with respect to injury no.11. This witness admitted that in the case of incised wound margins of the wound shall be cut, clean, regular and well defined. Shape of 51 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar some of the wounds has been opined to be eptical and margins have been opined to be contused. The overall reading of testimony of PW15 Dr. L.C Gupta coupled with the arguments advanced before me, it is the admitted position that two weapon of offences were used in the present case. This fact strikes at the theory of the prosecution according to which injured was murdered with one weapon of offence i.e dagger Ex.P12.
75. Much reliance was placed by Ld. PP on FSL report. For proper appreciation it is deemed expedient to reproduce the report no. 841/2002 of Biology division dated 17.2.04: Exhibits Species of Origin ABO Group/Remarks '1' Weapon of offence Human 'A' Group '2a' Pants Human 'A' Group '2b' Banian Human 'A' Group '2c' Shirt Human 'A' Group '2d' Underwear Human No Reaction '2e' A pair of chappal Human No Reaction '2f' belt Human No Reaction '3' Tshirt Human 'A' Group '4a' Underwear Human 'A' Group '4b' Tshirt Human 'A' Group '5' Bloodstained No Reaction vegetative earthy material '6' Cotton wool swab No Reaction 52 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar '7' Earthy material Human No Reaction
76. Ex.1 is the weapon of offence on which blood group A has been found. Pant, Banian, shirt of deceased were found having traces of blood group 'A'. Underwear, pair of chappal and belt of deceased were found to be having the traces of human blood but blood group could not be ascertained. T shirt allegedly recovered at the instance of accused Harvinder bearing Ex.3 was found to contain human blood of 'A' group. Underwear and T shirt of accused Manoj bearing Ex. 4A and 4B were found containing traces of human blood of group 'A'. Ex.5 and 6 which were bloodstained vegetative earthy material and cotton wool swab were found having no reaction. Ex.7 which was earthy material was found having traces of human blood but blood group could not be ascertained. Ex.5, Ex.6 and Ex.7 were lifted from the spot as per the case of the prosecution.
77. Above discussion categorically goes to show that blood group of deceased being 'A' was not established. This is a very serious defect in the case of the prosecution. I have observed time and again that police for the reasons best known to it, does 53 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar not get ascertained the blood group of the deceased and the accused at the first available opportunity. Investigation officers for reasons best known to them are not getting the accused and the deceased examined for ascertainment of their blood groups. Blood samples are sent to FSL and the samples get putrefied in the process. In the present case also the IO has not taken care to get the blood groups of the accused persons and the deceased ascertained at the first available opportunity. I have observed that blood grouping should be done at the first available opportunity as the blood grouping does not take more than five minutes in all. As in the present case blood grouping of accused Harvinder, co accused Manoj and deceased Vinod has not been ascertained, FSL report does not lead the case of the prosecution in the desired direction and a very important piece of circumstantial evidence has gone waste. Argument of Ld PP that from the facts of the case, it can be inferred that blood group of deceased was 'A' and non explanation on the part of the accused of blood group 'A' leads to the inference that they are the authors of crime is an argument which appears attractive in the first blush but is not tenable on deeper scrutiny as if the argument is accepted then it 54 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar will become very easy for the police to falsely implicate innocent persons.
78. During cross examination PW12 stands fully exposed. He has admitted that accused Manoj was apprehended from a place which was surrounded by residential areas and several persons were passing at the time of apprehension of accused Manoj. This witness admitted that he had not requested any neighbor / resident to join the proceedings. This witness admitted that accused Harvinder was arrested after 30 minutes of arrest of accused Manoj. This version is falsified from the arrest memos of accused Manoj and accused Harvinder in which the arrest of accused Manoj has been shown at 6.00 PM and that of Harvinder has been shown at 6.30 PM. The arrest memo of accused Harvinder contains overwriting at the time of arrest. It has been changed from 5.30 PM to 6.30 PM.
79. The version of IO w.r.t apprehension of accused is also not inspiring confidence as PW12 has admitted that place of apprehension of accused Harvinder was a thorough public place and the shops and establishments were lying open. No effort has been made by the IO to join the public witnesses at the time of 55 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar apprehension of accused Harvinder.
80. At this juncture I deem it pertinent to mention at the cost of repetition and circumlocution that at the first page of cross examination dated 18.3.09 PW12 admitted that he did not interrogate Sushila despite the fact that her name had figured in the investigation. Similarly, PW12 has admitted in his cross examination dated 18.3.09 that he did not interrogate Tinku at any point of time, did not prepare pointing out memo. I have no hesitation to observe that PW12 has given a concocted version about pointing out of dhaba by accused Manoj in the night as had it been so, then pointing out memo must have been prepared by the IO. When PW12 perceived that he is going to be exposed further on his concoction, he testified that there was no name and title on the dhaba. He admitted that he had made inquiries from some labours present at the dhaba. At the same time he admitted that he was not knowing as to who was the owner of the dhaba. He had to admit that he had not incorporated these facts in the case diary. Such a faulty investigation has to be deprecated as it has broken all the links in the chain of circumstantial evidence.
81. PW12 admitted that he did not record the statement of the 56 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar owner of the dhaba, did not get the liquor vend pointed out, did not get pointed out the hotel from where deceased had taken food. This witness tried to give false explanation that hotel has been closed when defence asked that why he did not visit the said hotel on the following day. At this juncture this witness had to admit that he never got the hotel pointed out through accused persons. Thus, despite being a senior officer he gave two contradictory versions on the same page, in his cross examination dated 18.9.03 about visiting or non visiting of the hotel and the pointing out of the hotel. He had to admit that factum of closure of hotel during night hours was not noted down by him in his case diary. He also admitted that he did not try to contact the rickshaw puller of the area with a view to verify the factum of going of deceased to Smritiwan by rickshaw. He admitted that he did not get the medical store pointed out from where bandaid was purchased. He admitted that he did not record the statement of owner or employee of medical store. He also admitted that he did not try to search owner or employee of medical store. He categorically admitted that he did not join any person of the locality at the time of recording of disclosure statement of accused 57 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Harvinder Singh. This witness falsely testified that he had mentioned the place of arrest of accused in the arrest memo as being street no. 1, Harijan Basti, Kondli. This fact was not found in the arrest memo wherein only Kondli has been mentioned and there is no mention of street no. and the faulty investigation conducted by Pw12 is of the nature which has given very fatal blow to the veracity of the case of the prosecution.
82. Cross examination dated 22.7.08 of PW12 is not of much relevance and advertance to the same is not being had.
83. Cross examination dated 02.03.09 makes a mention about crime team officials visiting the spot. This witness testified that no spot note was given by the crime team officials. It is usual practice that crime team gives the spot note and I have no hesitation to observe that this witness has deposed falsely in this regard. PW 14 talks of doing of writing work by the crime team officials.
84. Cross examination at second page of this witness has already been adverted to while discussing the testimony of PW8. I deem it pertinent to mention that IO should have recorded the supplementary statement of Ramesh Chand when he met him around 2 or 3 pm in the police station. This witness forgot to 58 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar remember the important fact of recording of the supplementary statement of PW Ramesh concerning lifting of blood from the spot. This witness had to admit that no supplementary statement of Sh. Ramesh was recorded on 11.11.03 concerning lifting of blood sample. This again is a serious defect in the case of the prosecution and raises serous doubts about the veracity of the version of the prosecution case concerning lifting of blood samples. This witness admitted that supplementary statement was recorded on 12.11.2003. Perusal of Ex. PW8/B, Ex.PW8/C and Ex.PW8/D reveals that same were prepared on 11.11.2003. Thus Ex. PW8/B, C and D do not concile with statement recorded u/s 161 Cr PC. At this juncture I deem it expedient to mention that in the statement dated 12.11.2003 Ex.PW8/DA, it is categorically mentioned that one Vinod BC was given a knife blow by Jitender @ Ganja in the presence of son of PW8. PW8 had categorically denied this fact in his testimony and thus case of the prosecution becomes hazy.
85. Version of this witness concerning contacting by him of the last scene witnesses is also not inconsonance with the case put 59 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar forth by the prosecution in the versions of PW1 and PW2. This witness in his cross examination dated 02.03.09 admitted that he had visited the locality / street where the deceased was residing on 11 to 14 daily. This witness admitted that he had conducted inquiries as to with whom the deceased was having enmity and he had incorporated the names and addresses of such persons in the case diary (Ld. P.P. was asked if case diary goes to show that if such name are there in the case diaries or not and he fairly admitted that as per case diary record, PW8 has not shown any enmity towards anyone). This witness pleaded ignorance as to whether Ramesh Chander had come in his contact on 13.11.2003 and 14.11.2003.
86. PW12 admitted to the following effect "public persons namely Nagender and Harshvardhan had informed me on 11.11.2003 during local investigation / inquiry. That they had seen deceased with Manoj Kumar (accused) during evening time on 10.11.2003. Both these persons had met me on 11.11.2003 in their respective houses. I do not recollect their house number now. Vol: but they are resident of same street, where deceased was residing. I had not recorded the statements of Nagender and 60 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Harshwardhan to this effect".
The above conduct of the IO of not recording of the statement of Nagender and Harshwardhan despite the fact that they were the witnesses of lase scene evidence, speaks volumes about the faulty investigation conducted by the IO.
87. I deem it expedient to mention that PW12 categorically admitted to the effect that no public witness contacted him who may have informed that he had seen the deceased with Manoj 12.11.2003. This admission by PW12 goes in categorical contrast of statement of PW8 given before the court that he had informed PW12 Jagdish about seeing of deceased with Manoj.
88. PW12 has given a contradictory version with respect to meeting of PW Raj Kumar and PW Shailender. PW Raj Kumar and PW Shailender have testified that their statement was recorded on 14.11.2003. PW 12 on the other hand has testified that PW Shailender and PW Raj Kumar met him on 13.11.2003. That they had contacted him near a shop which was about 200 250 meters away from the house of the deceased. That it was the shop of Raj Kumar where Raj Kumar had met him along with Shailender. Versions of PW1 and PW2 in this regard are not 61 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar inconsonance with version of PW12. PW1 has come with the version that police had not recorded his statement in this case. (Cross examination dated 04.06.04 first page 12th line from bottom to top). PW2 on the other hand has testified that he had given his statement to the police on 14.11.2003 in the gali in front of his house. In the next breath PW2 stated that police officials were sitting in the house of Ramesh Chand, father of the deceased. In the next breath he has stated that initially he was sitting outside his house and thereafter he had reached the house of Ramesh Chand where apart from Ramesh Chand other relations and locality persons were present. In the next breath he stated that he was watching arrival of police at the house of Ramesh Chand from his house and his statement was recorded outside his house. Thus versions of PW12, PW1 and PW2 become completely irreconcilable in this regard. Chaff and grain in this case stand inextricably mixed. All efforts of mine to separate them are resulting into cropping up of an entirely new case.
89. PW12 testified that statements of PW Harish Kumar and Ravi were recorded on 14.11.2003 whereas the records reveal that their statements were recorded on 13.11.2003.
62 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
90. PW12 did not act properly by not asking from PW Shailender and Raj Kumar as to why they were giving the statement at a belated stage. He testified as follows : "I did not inquire Shailender and Raj Kumar concerning the fact as to why they passed on such information as mentioned in their statement at belated stage". It was required from PW12 to have asked so.
91. PW12 gave a shaky explanation about Raj Kumar and Shailender coming in his contact by chance. This witness although admitted that he had interrogated Vinod Kumar BC but this fact was not shown by Ld. PP to be found mentioned in the police file. This witness admitted that he had not contacted Jitender @ Ganja and Montu concerning this case. This should have been so done by this witness in view of the supplementary statement dated 12.11.2003 of PW Ramesh chand wherein mention about infliction of injuries on Vinod BC in the presence of deceased by Jitender @ Ganja is there. This witness was confronted with Ex.PW8/DA. Thereafter this witness admitted may be by becoming wise that he had contacted father of Ruchi. But in the next breath he admitted that he had not recorded the statement of father of Ruchi. He admitted that he had not mentioned this fact in case diary.
63 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar
92. PW12 admitted that he had not made local inquiries concerning the fact that deceased used to tease the girls of locality. This was required on the part of the IO to be done as this aspect would have thrown light on the motive aspect and would have connected one more link in the chain of circumstantial evidence. Thus chain of circumstantial evidence stands broken once again.
93. In the cross examination dated 18.03.2009 this witness improved upon his version and testified that PW Ramesh had told him during investigation that he had seen deceased in the company of Manoj, Nagender and Harshvardhan on 11.11.2003. This witness admitted that he did not record the statement of Ramesh in this regard. This witness admitted that Ramesh Chand had not disclosed about last scene in his supplementary statement. Can such a witness who blows hot and cold in the same breath be believed ? Answer is an emphatic no.
94. During further cross examination on 18.03.2009 this witness told about the arrest of accused Harvinder at 5.00 PM and accused Manoj at 4.00 PM. This version is in contrast with the 64 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar records of the case as per which the arrests have been shown at 6.00 PM and 6.30 PM. This reaffirms my doubt of interpolation which arose in my mind from the overwriting on the arrest memo of accused Harvinder.
95. In cross examination dated 15.4..2009 this witness was exposed further wherein he had to admit that despite name of Dharmender surfacing in investigation he had not contacted Dharmender during investigation. This witness did not thought it necessary to record statement of Nagender and Harshwardhan despite the fact that they were the witnesses of last scene. This witness in complete ignorance of legal position gave the reason that only last scene evidence was deposed by them. In the next line he had to admit that last scene evidence was material in this case. He had to admit that deposition of those witnesses was substantial. Thereafter he gave another explanation that he sensed that they may not support the prosecution case. In the next breath he admitted that he had not incorporated this reasoning in case diary (first ten lines of cross examination dated 15.4.2009 of first page). Can an accused be sent behind bars for life in view of such a faulty investigation and defects as discussed 65 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar above. My answer is no although with a very heavy heart.
96. PW12 at second page admitted that no neighbor was joined in the investigation when Harvinder was arrested. This witness admitted that house was lying open and he did not count as to how many rooms were built at the ground floor of the house. This witness testified to the following effect : "I did not collect any evidence concerning the fact that room from where recovery was effected was in exclusive possession of accused Harvinder." The above quoted version strikes at the recovery aspect and accused has become entitled to a finding that recovery proceedings do not inspire confidence as possibility of keeping of clothes and dagger by some other person than accused cannot be ruled out.
97. In cross examination at page 2nd last 78 lines this witness no doubt that denied portion A to A in Ex. PW12/L and Ex.PW12/N were interpolated but the perusal of Ex.PW12/L and N goes to show that possibility of interpolation of portion A to A cannot be ruled out as the manner of writing of portion A to A is such.
98. At next page of his cross examination this witness admitted that he had not lifted any finger print from the dagger Ex.P12.
66 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar Had the finger prints been lifted from the dagger, then it would have been a very valuable piece of evidence.
99. Version of PW12 concerning handing over of seal to SI Ram Prasad is also not inspiring confidence as this witness had not recorded this fact in the recovery memo. This witness as already observed by me admitted that he had not pressed any application before the doctor for ascertaining the blood group of respective accused persons. This witness admitted during cross examination that he was not willing to refresh his memory by seeing the case diary. The reason for saying so was that this witness would have been exposed further. This witness admitted that he had not incorporated the factum of investigation of Vinod BC in case diary.
100. The above going discussion of testimony of PW12 Inspector Jagdish Prasad goes to show that it will be inappropriate to hold that prosecution has proved recovery as testimony of such a witness cannot be believed.
101. Coming to the testimony of PW14 SI Ram Prasad. In view of the fact that PW12 I.O has been disbelieved testimony of PW 14 will require more searching appreciation. This witness has 67 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar testified in his cross examination in contrast to PW12 that crime team had prepared some documents at the spot. This witness was not in a position to tell as to how much time was taken in recording the statement of PW Ramesh Chand despite the fact that it was recorded in his hearing. This witness pleaded ignorance about the reaching of the crime team at the spot. This witness was not in a position to recollect as to whether PW Ramesh Chand had suspected any person in his statement. He in the next sentence strangely admitted that PW Ramesh had doubted some of his enemy as the culprit. This is not found either in Ex.PW8/A, Ex.PW8/DA or in the version of PW12. This witness was not in a position to tell about the duration for which PW12 had remained with them. He had to admit that Ramesh Chand had not given the name of any of his enemy in his presence. This witness again pleaded ignorance about his suspicion on any particular person. This witness was not in a position to tell about the replies given by Pw Ramesh Chand during his interrogation by Inspector Jagdish Prasad in presence of this witness. This witness in contrast with PW12 deposed that effort for joining the public witnesses was made. This witness pleaded ignorance about leaving of the 68 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar smiritivan. This witness had testified that Jagdish Prasad had told him about surfacing of names of Manoj Kumar and Harvinder on 12.11.2003. This version of PW14 strikes at the root of the case of the prosecution as according to the case of the prosecution upto 1.00 noon on 12.11.2003 names of accused Harvinder and Manoj had not surfaced. This witness in his further cross examination testified that inspector Jagdish Prasad had told him about Manoj Kumar and Harvinder in the PS around 2.30 PM. (Cross examination dated 01.11.2008 3rd page second para). This version is not inconsonance with the version of PW12 as well as the case put forth by the prosecution.
102. PW14 in his cross examination testified about apprehension of accused Manoj at 3.00 PM in contrast with version of PW12 who has testified about the apprehension around 6.00 PM. Arrest memo also goes to show so. This witness was not in a position to tell as to whether IO requested neighbors to join the investigation or not. This version goes to show that either this witness was not accompanying PW12 or was not attentive. For both the eventualities his testimony cannot be relied upon. This witness was not in a position to tell as to who was 69 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar present at the house of the accused Harvinder and how many rooms were there in the house of the accused. This witness was not in a position to recollect as to for how much time he remained at the house of accused Harvinder. This witness pleaded non remembrance about arrival of any neighbor during recovery proceedings. This again goes to show the inattentiveness or absence of this witness with the I.O. This witness has pleaded ignorance about most of the questions. This witness admitted that it was revealed during investigation that father of accused Harvinder was residing with Harvinder. This again proves that room from which recovery was effected was not in exclusive possession of accused Harvinder. This witness admitted that IO had not lifted finger print from the dagger in his presence. IO has also admitted in this regard. This again goes to prove the faulty investigation. This witness pleaded ignorance as to whether he had told in statement under 161 Cr PC about involvement of accused Harvinder. This fact is not there in Ex.PW14/DA. This witness testified that blood on the dagger had dried up and for this reason blood was not shown in the sketch of the dagger. This version is in complete contrast with the case of the prosecution as 70 State Vs Harvinder, FIR no. 373/03, PS New Ashok Nagar in the recovery memo as well as in the sketch it is categorically mentioned that dagger was soaked in blood. In Ex.PW12/M words "khoon alooda" are there. In Ex.PW12/N, it is categorically mentioned that dagger was bloodstained.
103. The above discussed cross examination of PW14 also makes me to observe that from the testimony of PW14 also prosecution has failed to establish the recovery of bloodstained clothes as well as dagger satisfactorily and I am constrained to award the benefit of doubt to the accused.
104. In view of the aforementioned discussion, accused is acquitted for offences charged with. File be consigned to record room.
Announced in open court (Dilbag Singh)
Dated: 01.02.2010 Addl. Sessions Judge01(E):
Karkardooma Courts, Delhi.