State vs . 1). Suman @ Simran on 22 August, 2012

[Cites 13, Cited by 0]

Delhi District Court

State vs . 1). Suman @ Simran on 22 August, 2012

                                                                  1                                              FIR No. 918/07
                                                                                                         PS Prashant Vihar

       IN THE COURT OF SH MAHESH CHANDER GUPTA : 
     ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) : 
                     ROHINI : DELHI

SESSIONS CASE NO. 103/08
Unique I.D No. 02404R0010802008

 
STATE                              Vs.               1).  SUMAN @ SIMRAN 
                                                           W/O LATE DIMPLE RANA 
                                                           R/O H.NO. G1/60, SECTOR15,
                                                           ROHINI, DELHI.



                                                     2).  MUSKAN @ RUBI D/O CHHARU
                                                           R/O H.NO. G1/60, SECTOR15,
                                                           ROHINI, DELHI.
                                                           (BEING JUVENILE CASE WAS 
                                                            SEPARATED)



FIR No.                            :  918/2007
Police Station                     :  Prashant Vihar
Under Sections                     :  302/34 IPC & 27/54/59 Arms Act



Date of committal to session court :                                    16.05.2008

Date on which judgment was reserved:                                    18.08.2012

Date of which judgment announced:                                       22.08.2012

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                                                                      2                                              FIR No. 918/07
                                                                                                            PS Prashant Vihar

JUDGMENT:

1. Briefly stated the case of the prosecution as unfolded by the report u/s 173 Cr.P.C is as under: That on 26.12.2007 at about 1.25 AM in the night DD No. 3 PP Sector16, Rohini was received by ASI Rajinder Singh. On receipt of said DD, ASI Rajinder Singh alongwith Ct. Ashok reached at the place of incident at G1/60, Sector15, Rohini, Delhi. During the same time SI Mahender Singh vide DD No. 4 PP alongwith staff also reached at the place of incident. On reaching there in that house, ASI Rajinder Singh had met a girl Muskan @ Rubi, who showed a dead body of a young boy lying in the bedroom and had told the dead body is of Dimple Rana @ Manoo. The dead body was lying in the bed room on the right side situated on the back of the drawing room. A Diwan was also lying in that bed room and on the left side of Diwan the dead body of Dimple Rana @ Manoo was lying, whose head was towards East and the legs were towards west and one leg was bent by knee. The deceased was having full sleeves white banyan and blue jeans on the body and there was sports shoes in the feet with socks. There was a gun shot injury in the left side chest of the deceased which had crossed the body 2 of 100 3 FIR No. 918/07 PS Prashant Vihar from the exit zone on the back side (Aar par) and the banyan of that place was soaked with blood. Blood in enough quantity was also lying near the dead body. One empty cartridge was lying towards the feet of the dead body and one pistol was lying in the westnorth corner on the Diwan. On the left side of the body one liquor bottle having little liquor in it and one empty glass (of glass) was kept and near to it some pieces of cut apple in a plate and an open cashew packet was also kept. Crime team was called which reached at the spot who inspected the spot and took the photographs. No eye witness was found present at the spot. On inspection of the place of incident, of the dead body and the DD entry offences u/s 302 IPC and 27/54/59 Arms Act appeared to have been committed. SHO & PP Incharge alongwith staff was present at the spot. Rukka was prepared and was sent for the registration of the case. After registration of the case investigation was taken over by the SHO. During the course of investigation the exhibits, pistol with live cartridge, empty cartridge, bullet etc. after preparing their sketches were sealed, seized and were taken into police possession from the spot, site plan (without scale) of the spot was prepared, scaled site plan was also got prepared. Dead body was sent for postmortem. Dead body was got identified from Sh. Krishan Lal, father and Sh. Narender Rana, brother of the deceased and was handed over to them after postmortem. Statements of the 3 of 100 4 FIR No. 918/07 PS Prashant Vihar witnesses were recorded. The exhibits handed over by the doctor after the postmortem of the deceased were taken into police possession. Case property was deposited in the malkhana. During the course of investigation Mohan Jetli (PW4) who had phoned to PCR in the night of 25.12.2007 & 26.12.2007 was interrogated and his statement was recorded. Amardeep @ Vicky (PW1) was interrogated whose statement was recorded. On the basis of statement of Amardeep @ Vicky, Suman @ Simran and Muskan @ Ruby were searched and were interrogated and were arrested and their disclosure statements were recorded. On the basis of their disclosure, recovery was made from Jain Nagar and from Rani Bagh which were seized, sealed and deposited in the malkhana. Postmortem report was obtained. Exhibits were sent to FSL.

Upon completion of necessary further investigation challan was prepared for the offences u/s 302/34 IPC & 27/54/59 Arms Act, 1959 against accused Suman @ Simran and Muskan @ Rubi and was sent to the court for trial.

2. Case of accused Muskan @ Ruby being Juvenile was separated on 21.05.2012 and was sent to the Juvenile Justice Board.

4 of 100 5 FIR No. 918/07 PS Prashant Vihar

3. Since the offence u/s 302 IPC is exclusively triable by the Court of Session, therefore, after compliance of the provisions of Section 207 Cr.P.C, the case was committed to the Court of Session u/s 209 Cr.P.C.

4. Upon committal of the case to the Court of Session, after hearing of charge prima facie a case u/s 302/34 IPC against accused Suman @ Simran and Muskan @ Ruby was made out and a case u/s 27/54/59 Arms Act against accused Suman @ Simran was made out. Charges were framed accordingly which were read over and explained to both the accused persons to which they pleaded not guilty and claimed trial.

5. In support of its case prosecution has examined twenty seven witnesses. PW1 Amardeep @ Vicky, PW2 Narinder Rana, PW3 Krishan Lal, PW4 Mohan Jaitley, PW5 Manoj Kumar, PW6 Jagdish Prasad Sharma, PW7 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Jahangirpuri, Delhi, PW8 Ct. Ramesh, PW9 SI Suraj Bhan, PW10 HC Dharamvir, PW11 Ct. Praveen, PW12 HC Banwari Lal, PW13 SI Manohar Lal, PW14 HC Raj Kumar, PW15 Ct. Akhilesh Kumar, PW16 W/Ct. Kalpana, PW17 Ct. Fakruddin, PW18 HC Purshuram, PW19 SI 5 of 100 6 FIR No. 918/07 PS Prashant Vihar Naresh Kumar, PW20 HC Ram Singh, PW21 SI (Retd.) Ram Phal, PW22 Ct. Sanjay, PW23 SI Mahender Singh, PW24 Retired SI Rajender Singh, PW25 Sh. K.C. Varshney, Assistant Director, Ballistic Division FSL, Rohini, Delhi, PW26 ACP Naval Kishore, P.G. Cell, Head Quarter, South District, Hauz Khas, Delhi and PW27 Sh. B.K. Singh, DCP (NorthEast), Delhi.

6. In brief the witnessography of the prosecution witnesses is as under: PW1 Amardeep @ Vicky is the business partner of deceased Dimple Rana. He deposed that he got house No. G1/60, Sector15, Rohini, belonging to Sh. Jagdish Prasad Sharma (PW6) on the monthly rent of Rs. 7,000/ to Dimple (since deceased) in the year 2007 as a property dealer and also witnessed the rent agreement (Ext. PW6/A). Dimple was living in the said house with accused Suman and Muskan. He used to visit the house of Dimple once or twice in a month. He joined the investigation and proved the seizure memos Ext. PW1/A, Ext. PW1/B, Ext. PW1/C, disclosure statements of accused Ext. PW1/D, Ext. PW1/E, pursue containing jewellery Ext. P1 (colly), gents ring Ext. P2, purse containing cash Ext.

6 of 100 7 FIR No. 918/07 PS Prashant Vihar P3, one cheque book of Canara Bank, one driving licence in the name of Dimple, four receipts, four papers of Canara Bank, negatives of photographs, one passbook of Canara Bank, one photo album, one photo with frame, one green colour purse containing ladies ring, two ear rings, two karas artificial, 24 bangles and one artificial set Ext. P4 collectively, one jeans pant, one ladies kurta and one salwar suit Ext. P5.

PW2 Narinder Rana is the elder brother of the deceased Dimple, who identified the dead body of his younger brother Dimple vide identification statement Ex.PW2/A and deposed that after postmortem the dead body of Dimple was handed over to them vide receipt Ex.PW2/B which bears his signature at PointB. PW3 Krishan Lal is the father of the deceased Dimple, who also identified the dead body of his son Dimple and proved his identification statement Ext. PW3/A and deposed that after postmortem the dead body of Dimple was handed over to them vide receipt Ex.PW2/B which bears his signature at PointB. 7 of 100 8 FIR No. 918/07 PS Prashant Vihar PW4 Sh. Mohan Jaitley who informed the police on 100 number by his mobile phone no. 9312624859 in the intervening night of 2526.12.2007 at about 1.15 AM at the asking of one girl that 'goli chal gai hai'.

PW5 Sh. Manoj Kumar who deposed that he was married to accused Suman. She was his wife and she has three children from her. He has left her wife as per customs without any formal decree of divrose by court of law. She is not living with him for the last about 45 years and he does not know with whom she started living after she left.

PW6 Jagdish Prasad Sharma is the owner of Ground Floor of House no. G1/60 Sector 15 Rohini, who deposed that on 29.08.2007 he rented out this house to one Dimple Rana (since deceased) for a monthly rent of Rs. 7,000/ vide rent agreement Ex.PW6/A bearing his signatures at Point A and his photograph at PointX. The signatures of Dimple Rana on the said agreement are at PointB and photograph of Dimple Rana is at PointY. He further deposed that he also informed the police about induction of the said tenant in the said house by tenant verification form Ex.PW6/B bearing his signatures at PointA. 8 of 100 9 FIR No. 918/07 PS Prashant Vihar PW7 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Jahangirpuri, Delhi, who conducted postmortem on the deadbody of deceased Dimple and proved the postmortem report Ext. PW7/A signed by him at PointA. PW8 Constable Ramesh is photographer of the crime team who took photographs of the spot i.e G1/60, Sector15, Rohini, on the direction of IO and SI Surajbhan (PW9), Incharge of Crime Team and proved 14 photographs Ext.PW8/A1 to Ext.PW8/A14 (photograph Ext. PW8/A5 is also Ext. PW23/DB) and negatives thereof Ext.PW8/A15 to Ext.PW8/A28 (collectively).

PW9 SI Suraj Bhan is the Incharge of Crime Team, who reached at the spot on receipt of information through DD No.3 alongwith crime team members, inspected the scene of crime. He deposed that no chanceprint could be noticed on the spot. He prepared the crime team report Ext. PW9/A which bears his signatures at PointA. 9 of 100 10 FIR No. 918/07 PS Prashant Vihar PW10 HC Dharamvir who deposed that on 25.12.2007 he was posted at PS Prashant Vihar from 8.00 PM to 8.00 AM on next day. At about 1.25 AM on the intervening night of 25.12.2007 he received a wireless message that at G1/16 (be read as G1/60), Sector15, Rohini that 'goli chal gai hai'. He informed telephonically to ASI Rajinder Singh. He further deposed that he also recorded this information in writing vide DD No. 3 dated 26.12.2007 Ext. PW10/A bears his signature at PointA. PW11 Ct. Praveen who deposed that on 14.03.2008 as per the instructions of IO he collected exhibits of the present case i.e 10 pullandas in sealed condition alongwith Form FSL from MHC(M) HC Banwari Lal (PW12) and deposited the same at FSL vide RC No.17,18/21/08 and after depositing the same he returned one copy of RC with receipt of FSL to MHC(M).

PW12 HC Banwari Lal, is the MHC(M), who proved the copies of relevant entries no. 2670, 2671 & 2672 of register no. 19 Ext. PW12/A (colly) and also proved the photocopy of RC No. 17 and its corresponding receipt of FSL Ext. PW12/B and photocopy of RC No. 18 and its corresponding receipt of FSL Ext. PW12/C. 10 of 100 11 FIR No. 918/07 PS Prashant Vihar PW13 SI Manohar Lal, is the draftsman who deposed that on 14.01.2008 he was called by IO Inspector Naval Kishore (PW26) at the spot i.e House No. G1/60, Sector15, Rohini, Delhi. He prepared rough notes and took measurements at the spot. On the basis of rough notes and measurements, he prepared the scaled site plan Ext. PW13/A signed by him at PointA. After preparing the scaled site plan he had destroyed rough notes and measurements.

PW 14 HC Raj Kumar who deposed that on 25.12.2007 he was posted at Police Control Room at Head Quarter as telephone operator and on 26.12.2007 at about 1.23 AM (night) an information was received from telephone no. 9313624895 that at G1/60, Sector15, Rohini firing had taken place. He filled up the PCR form Ext. PW14/A signed by him at PointA and forwarded the information to Commander1 for further communication.

PW15 Constable Akhilesh Kumar, who deposed that on 26.12.2007 he was posted as Constable at PS Prashant Vihar and on that day the duty officer handed over three envelops to be delivered to the senior officers. He left the PS on the official motorcycle and delivered the one 11 of 100 12 FIR No. 918/07 PS Prashant Vihar envelop at the residence of Ld. Area MM, one envelop at the residence of DCP and one envelop at the residence of Joint CP.

PW16 W/Ct. Kalpana, who deposed that she joined investigation on 27.12.2007 & 28.12.2007 and deposed on the investigational aspects and besides proving other memos and case property also proved the arrest memo of accused Muskan and accused Suman @ Simran as Ext. PW16/A & Ext. PW16/B (also Ext. PW23/G) and their personal search memos as Ext. PW16/C and Ext. PW16/D respectively signed by her at PointsA. PW17 Ct. Fakruddin, who deposed that on 24.03.2008 he was posted at Licencing Branch, Defence Colony, on that day ASI Rajender Singh from PS Prashant Vihar arrived at the office alongwith an application and as per the order of ACP Licencing the record pertaining to pistol make Webley & Scott, Brimingham London No. BTO 4444447165MM automatic pistol was checked in computer and as per record there was no entry in their office pertaining to this pistol.

PW18 HC Parshuram, who deposed that in the intervening night of 25/26.12.2008 he was posted as HC in PCR North West Zone and his duty 12 of 100 13 FIR No. 918/07 PS Prashant Vihar was on PCR Van C44 as Incharge from 8.00 pm to 8.00 am. At about 1.25 am he received a call from control room regarding firing at H.No. G1/60, Sector15, Rohini. He alongwith his staff reached at the given address and found a dead body in a pool of blood and one English Pistol was also lying there near the dead body. He passed this information to control room through wireless. Local police also arrived there and thereafter he left the spot alongwith his staff.

PW 19 SI Naresh Kumar, who deposed that on 04.02.2008 he was posted at PP Sector16, PS Prashant Vihar as SI. On that day as per the instructions of the then SHO PS Prashant Vihar Inspector Nawal Kishore he had written a letter to DCP Licensing regarding verification of the recovered pistol to know whether it was licensed one or unlicensed one and on verification it was found that the same was unlicensed.

PW20 HC Ram Singh, is the Duty Officer, who deposed that on 26.12.2007 he registered the case FIR No. 918/07 on the basis of rukka sent by SI Rajinder Singh through constable Ashok. He proved his endorsement on the rukka at PointA signed by him at PointB and proved the attested copy of DD No. 7A as Ext. PW20/A and copy of the FIR Ext. PW20/B. 13 of 100 14 FIR No. 918/07 PS Prashant Vihar PW 21 Retired SI Ram Phal who joined the investigation on 28.12.2007 and deposed on the investigational aspects and proved the memos and case property already proved as Ext. PW1/A, Ext. PW1/B and as Ext. P1, P2 & P3 (colly).

PW22 Ct. Sanjay, who deposed that on the intervening night of 25/26.12.2007 he went alongwith crime team at G1/60, Sector15, Rohini, where the murder had taken place. At the spot a fired cartridge and an automatic pistol was found lying. One bottle of whiskey and one glass was found lying there. At the directions of SI Suraj Bhan he checked the above said articles but because of the moisture chance prints were not found on the above articles. He informed accordingly to SI Suraj Bhan.

PW23 SI Mahender Singh, who joined the investigation and deposed that on 16.12.2007 (be read as 26.12.2007) he was posted at PP Sector16, Rohini, Prashant Vihar. DD No. 3A was received at PP Sector16, Rohini, at about 1.25 am that fired had been shot at Sector15 H.No. G1/60, Sector15. The same was handed over to ASI Rajinder Singh. DD writer also passed on this message to him vide DD No. 4, the attested copy of the same is Ext. PW23/A. He deposed on the investigational aspects 14 of 100 15 FIR No. 918/07 PS Prashant Vihar and besides proving the other memos also proved the attested copy of DD No. 33 dated 27.12.2007 Ext. PW23/A (be read as Ext. PW23/K) the seizure memos of the exhibits lifted from the spot Ext. PW23/B, sketch of the pistol and cartridges Ext. PW23/C, seizure memo of the pistol and cartridges Ext. PW23/D, seizure memo of the liquor bottle and glass Ext. PW23/E, arrest memo of accused Muskan & Simran Ext. PW16/A & Ext. PW23/G (also Ext. PW16/B), their personal search memos Ext. PW16/C & Ext. PW16/D, their disclosure statements Ext. PW23/J & Ext. PW23/H respectively. He further deposed that on 28.12.2007 he also joined the investigation with SHO/ACP Naval Kishore and also proved the case property already proved as Ext. P1 to Ext. P4 and also proved the liquor bottle Ext. P5 (the clothes of the accused persons are also Ext. P5), glass Ext. P6, pistol Ext. P7, cartridge case Ext. P8, deformed bullet Ext. P9 (also Ext. P13), live cartridge Ext. P9A, cotton piece of blood Ext. P10, earth control Ext. P11, blood stained earth control Ext. P12.

PW 24 Retired SI Rajender Singh who joined the investigation and deposed on the investigational aspects and besides proving the other memos and case property already proved, also proved his endorsement Ext.

15 of 100 16 FIR No. 918/07 PS Prashant Vihar PW24/A signed by him at PointA on DD No. 3 (Ext. PW10/A).

PW 25 Sh. K.C.Varshney, Assistant Director, Ballistic Division FSL, Rohini, Delhi who is the Ballistic Expert who proved the Ballistic Report Ext. PW25/A signed by him at PointA and also proved the case property already exhibited Ext. P7 to Ext. P13 and also proved a full sleeves shirt of having holes on the front and back side and other clothes as Ext. P14 (collectively).

PW26 ACP Nawal Kishore, P.G. Cell, Heard Quarter, South District, Hauz Khas, Delhi is the investigating officer of the case who deposed on the investigational aspects and besides proving the other memos also proved the rough site plan Ext. PW26/A, inquest form Ext. PW26/B, brief facts Ext. PW23/DA, application for conducting postmortem Ext. PW26/C, seizure memo of the clothes and shoes of the deceased given by the doctor after the postmortem Ext. PW26/D, the letter to the Licensing Authority whether the pistol recovered was registered in the name of any person or not Ext. PW26/E, attested copy of the arrival entry at the PS of DD No. 17A dated 27.12.2007 Ext. PW26/F and application for taking police remand of both the accused Ext.PW26/G. 16 of 100 17 FIR No. 918/07 PS Prashant Vihar PW27 Sh. B.K. Singh, DCP (NorthEast), Delhi who proved the sanction u/s 39 Arms Act for the possession of improvised pistol, live cartridge and deformed bullet recovered from the possession of accused Suman @ Simran Ext. PW27/A signed by him at PointA. The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of the evidence.

7. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.

8. Statement of accused Suman @ Simran was recorded u/s 313 Cr.P.C wherein she pleaded innocence and false implication. She has stated that she is innocent. She has been falsely implicated in this case at the instance of PW1 Amardeep who was a real culprit and also lifted by the police officials on the morning of 26.12.2007. She has nothing to do with 17 of 100 18 FIR No. 918/07 PS Prashant Vihar the offence. At the time of incident only Muskan was present at the spot where Amardeep alongwith one another person came and had scuffled with Dimple Rana and later on fled from the spot after firing on Dimple. She has been falsely implicated in this case by Amardeep in collusion with the police officials.

Accused Suman @ Simran opted not to lead any defence evidence.

9. Sh. Rajnish Antil, Ld. Counsel for the accused Suman @ Simran submitted on the lines of the written arguments filed by him and further submitted that the prosecution has miserably failed to prove its case. He further submitted that the present case is a case based upon the circumstances, therefore, motive, plays an important role in this case. As regards motive for committing the crime Ld. Counsel for the accused submitted that as per the story put forward by the investigating agency regarding that the accused persons and Dimple since deceased had a quarrel over the money matter and of their threatening him with dire consequences, the prosecution has failed to prove the same through its witnesses PW1 Amardeep @ Vicky, PW2 Narender Rana, PW3 Krishan Lal, PW26 ACP Naval Kishore. PW1 Amardeep @ Vicky has deposed that both the women 18 of 100 19 FIR No. 918/07 PS Prashant Vihar were involved in flesh trade. He did not state the source of this information. He is not deposing as to on what basis he gave this conclusion. This witness did not whisper whether he had himself seen their involvement in flesh trade or heard from someone about the same. Ld. Counsel further submitted that it is quite hard to believe that accused persons would fight with the deceased in front of an unknown person and that too each and every time he visits the house. Furthermore this witness (PW1 Amardeep @ Vicky) negates the suggestion given to him that Dimple's father asked him on telephone if Dimple was having any connection with a lady. All the said three public witnesses (PW1, PW2 & PW3) deposed about the same fact of quarreling over money but none of them told about the same to the other one. He further submitted that as per PW1 Amardeep @ Vicky whenever he visited the house of Dimple he met him outside the house. It means that the quarrel used to take place outside the house or in the sight of the neighbours even then IO failed to collect any independent corroboration regarding this fact. The corroboration is essential for the reasons that all the PWs including the police officials admitted this fact that the house of Dimple is situated in a residential area where there are multi storey buildings occupied by many families. None of the neighbour had ever made a PCR call or lodged any complaint at local police station regarding the alleged quarrel between the 19 of 100 20 FIR No. 918/07 PS Prashant Vihar deceased and the accused persons. He further submitted that PW1 Amardeep @ Vicky in his crossexamination has admitted that he has seen both the accused persons quarreling with the deceased only once or twice during his visit. Ld. counsel for accused argued that only one or two occasions are not sufficient to come to a conclusion. Some substantive piece of corroboration is required for ascertaining a fact. Ld. Counsel for accused further submitted that PW2 Narender Rana has stated about the fight between deceased and accused persons two or three days prior to his murder but in the crossexamination he deposed that he cannot tell the date. He deposed apart from him, two accused, deceased and his father was also present. Ld. Counsel for accused submitted that PW3 Krishan Lal, the father of PW2 Narender Rana did not confirm this fact. He admitted that he did not call the police. None else called the police. Ld. Counsel for accused further submitted that PW2 Narender Rana admitted that he had never seen accused Suman or accused Muskan involved in flesh trade or doing any illegal activity. Ld. Counsel for accused submitted that regarding the quarrel it may be presumed that no such incident took place as this witness (PW2) did not state the time of such quarrel and above all there is material contradictions regarding the presence of PW3 Krishan Lal at the time of quarrel. Ld. Counsel for accused further submitted that PW3 Krishan Lal in 20 of 100 21 FIR No. 918/07 PS Prashant Vihar his examination in chief did not whisper even a single word regarding the involvement of the accused persons in flesh trade but in his cross examination he tried to introduce a false story by stating that he had seen the accused persons doing flesh trade in the house in which they were residing with Dimple. But he did not state the date and time when he saw them doing so. Ld. Counsel for accused further submitted that the base of this contention of this witness (PW3) is that when he visited the house of Dimple the door was opened by Suman, he saw one person going outside the house from the back door hence he is saying that he saw her doing bad/wrong act. This witness further stated that he saw this when he went first time to the house of Dimple. Ld. Counsel for the accused submitted that this witness (PW3) cannot be considered as a witness of truth for the reason that according to him he saw the involvement of the accused persons when he went to the house of the Dimple for the first time. Ld. Counsel for the accused submitted that on first two occasions as per PW2 Narender Rana he accompanied with his father to the house of Dimple and no such incident was stated by Narender in his testimony. Hence, the lie of this witness is caught clearly. Ld. Counsel for accused submitted that if we see the site plan no body can see the inner portion of the house from the door itself, therefore, seeing the back door is completely out of question. This fact is also 21 of 100 22 FIR No. 918/07 PS Prashant Vihar admittedly not stated to the police also nor it was brought in the knowledge of his son Dimple by this witness (PW3). This witness (PW3) also did not try to raise alarm on seeing that person. This fact was also not told to PW2 Narender Rana the eldest son of this witness (PW3) and who accompanied him to the house of Dimple. This witness (PW3) also admits the fact that accept this one occasion he never saw both the accused persons indulging in flesh trade. Ld. Counsel for the accused further submitted that credibility of PW3 Kishan Lal is doubtful for the reason that on one instance he stated that he made inquires about his son from the neighbourhood but he cannot tell their names and addresses. Ld. Counsel for accused further submitted that PW3 in his crossexamination shows his unawareness by stating that it is correct that on both the sides of the house of Dimple, houses are built. He does not know whether those houses are occupied or not. Ld. Counsel for accused further submitted that he is unaware of the aforesaid fact then how he made inquires from neighbours regarding his son.

Ld. Counsel for accused further submitted that PW26 ACP Naval Kishore, IO in his examination in chief has stated that during the course of investigation it was revealed that both the accused persons were involved in sex racket with deceased who was working as a pimp. Accused persons also revealed that they were not been sufficiently paid by pimp 22 of 100 23 FIR No. 918/07 PS Prashant Vihar which he was getting from customers and in view of due payment and their demand repeatedly from deceased who was not paying them their due share as a result both accused persons were annoyed from the deceased and committed murder of Dimple Rana. Ld. Counsel for accused argued this witness did not collect or record any evidence to prove that the accused persons were indulging in flesh trade. He further submitted that IO states that it was revealed during the course of investigation that both accused persons were involved in sex racket with deceased who was working as pimp. IO did not mention the source of information anywhere in the chargesheet. It is not disclosed by the IO how and from whom he came to know regarding this fact. Ld. Counsel for accused further submitted that case dairy prepared by the IO must be silent regarding this aforesaid fact. If the IO states this fact on the basis of disclosure statement suffered by the accused persons then it is inadmissible in law. He further submitted that it is alleged by all the public witnesses that the accused persons were involved in the flesh trade but they did not say anything about the involvement of Dimple in flesh trade or that he was working as a pimp then it was hard to believe that IO had not disclosed this fact to them. It was expected from the IO to make inquiry regarding this fact from any independent source. In the absence of any substantive evidence regarding this circumstance, the 23 of 100 24 FIR No. 918/07 PS Prashant Vihar prosecution story seems to be concocted, baseless and fabricated.

Ld. Counsel for accused further submitted that the alleged extra judicial confession made jointly by the accused persons before Amardeep @ Vicky (PW1) does not fall within the definition of extra judicial confession. Even for the sake of arguments we consider it an extra judicial confession then also this extra judicial confession is nothing but an afterthought. He further submitted that no alleged extra judicial confession was made. On 27.12.2007 accused Suman and Muskan were produced before Ld. MM in this case for the first time after being arrested at 9.30 AM on the same day and the request for seeking police custody remand of these accused persons was made vide application Ext. PW26/G but there was no mention in the same that accused persons had made extra judicial confession before Amardeep @ Vicky (PW1). The nonmentioning of the circumstance in the remand papers prove that no such confession was ever made by the accused persons. He further submitted that joint confession made by the accused persons is not admissible. He referred to the case law; Anil Kumar Vs. State of Punjab RCR (Cri.) 2008 (1) 982, Neeranjan Lal Vs. State of Haryana, 1995 Crl. L.J 248 (P&H), Harikant Vs. State of Haryana RCR 1998 (1) 256 (P & H), State of Haryana Vs. Surender @ Shailender Cr. CC 2010 (3) 534 (P&H). He further submitted that in the disclosure statement of accused 24 of 100 25 FIR No. 918/07 PS Prashant Vihar Suman Ext. PW23/H there is no disclosure of fact that Amardeep met with accused persons or that she said anything to him. He further submitted that the extra judicial confession made in the present case is vague, unclear and without any independent corroboration hence is liable to be ignored. He further submitted that the manner in which this confession is made is also suspicious and it is not explained by Amardeep that why the accused persons chose him to open their hearts. Secondly, what the accused persons wanted to confess. Thirdly, with whom they had committed any act. Even this witness (PW1) has not stated that he stopped his bike or talked to accused or in what manner he heard their confession. Ld. Counsel for accused submitted that hence the prosecution failed to prove this circumstance in any manner.

Ld. Counsel for accused further submitted that there are material contradictions in the testimony of the prosecution witnesses on the recording of the disclosure statements of the accused persons. The disclosure statement Ext. PW23/H does not bear the signature of PW24 Retired SI Rajender. One witness ASI Bal Kishan who had signed the disclosure statement was not arrayed as witness in this case for the reason better known to the IO. PW16 L/Ct. Kalpana has not stated that she signed the disclosure statement. Infact in her examination in chief she did not say anything about 25 of 100 26 FIR No. 918/07 PS Prashant Vihar recording of disclosure statement. She further submitted that there are material contradictions on the aspects, time when police officials left PS for the spot and time consumed by them in reaching there; presence of police officials; by whom disclosure statement was recorded; place and the position of coaccused at the time of recording of disclosure statement; presence of public persons and joining them in the investigation. He further submitted that all other PWs except L/Ct. Kalpana (PW16) negates the presence of public persons at the spot then how and to whom IO requested to join investigation. He further submitted that for the above mentioned contradictions it may be assumed that the accused persons did not suffer any disclosure statements and their signatures and thumb impression were obtained on blank papers which were converted into certain incriminating evidence against them.

He further submitted that there are material contradictions on the recovery of blood stained clothes allegedly worn by the accused persons at the time of commission of offence. He referred to the testimonies of the witnesses and stated that there are contradictions on the aspects, the vehicle used by the police party; presence of Amardeep on the day of recovery; time spent in reaching Jain Nagar, Karala; place where blood stained clothes were recovered; whether site plan showing the place of recovery of blood stained 26 of 100 27 FIR No. 918/07 PS Prashant Vihar clothes was prepared; presence of public persons and their joining investigation; jurisdiction of the area from where clothes were recovered and if local PS informed about the same. He further submitted that the ownership of the blood stained clothes was not proved at all. He further submitted that recovery of the clothes was not in pursuance of the disclosure statement. He referred to the disclosure statement of accused Suman Ext. PW23/H wherein accused had disclosed that she had left Muksan and went to Shakar Pur there she hides the articles and clothes and returned back to Sector15, Rohini. Ld. Counsel argued surprisingly the alleged clothes were recovered from Jain Nagar, Karala and also there is no supplementary statement to support the prosecution case. He further submitted that there are material contradictions on the recovery of articles including alleged ring of deceased from Jain Nagar Karala, Delhi and also on the aspects, the distance between place where blood stained clothes were recovered; house of Manoj; location of the house of Manoj; presence of public persons at the time of recovery from the house of Manoj and if asked to join; about the recovery of ring belonging to deceased and identified by Amardeep; where the writing work was done.

Ld. Counsel submitted that there are material contradictions on the recovery of articles from Rani Bagh Shakur Pur, Delhi. There are 27 of 100 28 FIR No. 918/07 PS Prashant Vihar contradictions on the aspects, who were the members of raiding party at Rani Bagh; who were found present there at the house of Suman's sister; whether the articles were sealed at Rani Bagh; the address of house missing in Ext. PW1/C; seal after use given to whom; place of recovery was an unlocked premises which could be assessed by anyone.

He further submitted that there are other lacunas/material contradictions in the prosecution case on the aspects, time when IO reached the spot and accompanied by whom; nonmentioning of wine bottle, cashew and apples found near the body in inquest form nor shown in the site plan; nonjoining of independent persons; finger prints from the pistol; apprehension and interrogation of Amardeep on 26.12.2007; joining of Amardeep instead of independent person; site plan of the place of recoveries not prepared admittedly; delay in sending the special report to the Magistrate, delay in sending the case property to FSL; delay in conducting the recovery proceedings; delay in arrest of accused persons; seal after use not deposited with the MHC(M) and local police stations were not informed even after the recovery of articles.

Ld. Counsel for accused further submitted that in the light of the aforesaid facts and circumstances there is no incriminating evidence sufficient enough to nail the accused Suman @ Simran in the present case 28 of 100 29 FIR No. 918/07 PS Prashant Vihar and she is prayed to be acquitted of the charges levelled against her.

10. While Ld. Addl. PP for the state, on the other hand submitted that the prosecution has proved the chain of circumstances, which point towards the guilt of the accused and the prosecution has proved its case beyond reasonable doubt against the accused. The contradictions and the discrepancies as are pointed out are minor and not the material one's and do not effect the credibility of the witnesses.

11. I have heard Sh. Anil Kumar Gupta, Ld. Addl. PP for the state and Sh. Rajnish Antil, Ld. Counsel for the accused and have also carefully perused the entire record.

12. The charge u/s 302/34 IPC against accused Suman @ Simran and Muskan @ Ruby (case of accused Muskan @ Ruby being a juvenile has since been separated) is that in the night intervening 2526.12.2007 time unknown at bedroom of house No. G1/60, Sector15, Rohini, Delhi, they in furtherance of their common intention committed murder by intentionally causing death of Dimple Rana by using a fire arm. Against accused Suman @ Simran additional charge u/s 27 Arms Act was also framed. That in the 29 of 100 30 FIR No. 918/07 PS Prashant Vihar night intervening 2526.12.2007 time unknown at bedroom of house No. G1/60, Sector15, Rohini, Delhi, she murdered Dimple Rana in furtherance of common intention with coaccused Muskan @ Ruby (case of accused Muskan @ Ruby being a juvenile has since been separated) by using a pistol without any licence.

13. The Hon'ble Supreme Court in case Md. Mannan @ Abdul Mannan Vs. State of Bihar 2011 V AD (SC) 289 has held that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved unerrignly point towards the guilt of the accused. It should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

INFORMATION TO THE POLICE CONTROL ROOM:

14. PW4 Sh. Mohan Jaitley in his examinationinchief has deposed that 30 of 100 31 FIR No. 918/07 PS Prashant Vihar "I am living at the above said address with my family. Earlier I used to reside at A85, Kewal Park earlier. I have a mobile phone having number 9312624859. On the night intervening 2526/12/2007 at about 1.15 AM I was returning from my office to my house on my scooter when I reached near the dividing road of Sector 15 & 16 of Rohini a girl called me and asked me to phone/call saying "Goli Chal Gai Hai". I informed the police on 100 number. I went to my house thereafter. In the morning I was called by the police and my statement was recorded."

PW14 HC Raj Kumar in his examinationinchief has deposed that "On 25.12.2007, I was posted at Police Control Room as (at) Head Quarters as Telephone Operator from 8:00 p.m. to 8:00 a.m. next day. On 26/12/07 at about 1:23 a.m. (night) an information was received that at G1/60, Sector15, Rohini, Delhi, firing had taken place said call was received from Telephone No. 9312624859. I filled up the PCR Form and forwarded the information to Commander - I for further communication. IO recorded my statement. The PCR Form filled up by me is Ex.PW 14/A signed by me at point 'A'."

PW18 HC Parshuram in his examinationinchief has deposed that 31 of 100 32 FIR No. 918/07 PS Prashant Vihar "In the intervening night of 25/261208 (be read as 25/26.12.2007) I was posted as HC in PCR North West Zone and my duty was on PCR Van C44 as Incharge from 8:00 pm to 8:00 am. At about 1:25 am I received a call from control room regarding firing at H.No. G1/60, Sec. 15, Rohini. I along with my staff reached at the given address and found a dead body in a pool of blood and one English Pistol was also lying there near the dead body. I passed this information to control room through wireless. Local police also arrived there and thereafter I left the spot along with my staff. My statement was recorded by the IO."

From the aforesaid narrations of the said PWs it is clearly indicated that PW4 Sh. Mohan Jaitley informed the police at no.100 "Goli Chal Gai Hai" at about 1.15AM in the intervening night of 25/26.12.2007, from his mobile phone having no. 9312624859. PW14 HC Raj Kumar on 26.12.2007 at about 1.23 AM (night) received an information that at G1/60, Sector15, Rohini, Delhi, firing had taken place and the said call was received from Telephone No. 9312624859. He filled up the PCR Form and forwarded the information to Commander - I for further communication. PW18 HC Parshuram who in the intervening night of 25/26.12.2008 was posted as HC in PCR North West Zone and his duty was on PCR Van C44 as Incharge. At about 1:25 am he received a call from control room regarding firing at H.No. G1/60, Sec. 15, Rohini. He alongwith his staff 32 of 100 33 FIR No. 918/07 PS Prashant Vihar reached at the given address and found a dead body in a pool of blood and one English Pistol was also lying there near the dead body. He passed this information to control room through wireless.

In view of above and in the circumstances, it stands established on record that police control room was informed at 1.15 AM in the intervening night of 25/26.12.2007 about the incident and this information was received at PCR Head Quarters by telephone operator at about 1.23 AM and was forwarded to CommanderI and this information was received by PW18 HC Parshuram Incharge, PCR Van 44 at about 1.25 AM who thereupon alongwith staff went to the spot.

TIME OF RECEIPT OF COPY OF FIR BY IO PW26 ACP NAVAL KISHORE:

15. PW20 HC Ram Singh, the Duty Officer in his examination in chief has deposed that on 26.12.2007 he was posted at PS Prashant Vihar as D.O and his duty timing was from 1.00 AM to 9.00 AM. On that day at about 4.50 AM Ct. Ashok Kumar brought a rukka sent by ASI Rajender Singh (PW24) on the basis of which he recorded the FIR no. 918/07, u/s 302 IPC and 25/27 Arms Act. After registration of the case he handed over the

33 of 100 34 FIR No. 918/07 PS Prashant Vihar original rukka and copy of FIR to Ct. Ashok Kumar for handing over the same to Insp. Naval Kishore (PW26) at the spot.

During his crossexamination PW20 HC Ram Singh has deposed it took him around 45 minutes in registering the FIR.

While PW26 ACP Naval Kishore in his examination in chief has deposed that "A tehrir and copy of FIR was handed over to me by Ct. Ashok at the spot at about 4.45 or 5.00 PM."

During his crossexamination recorded on 12.03.2012 PW26 ACP Naval Kishore has deposed "The tehrir and copy of FIR was sent through Ct. Ashok from the spot at about 4.45 or 5.00 AM and not at 4.45 or 5.00 PM as reflected in my examinationinchief which appears to have crept due to typographical mistake."

34 of 100 35 FIR No. 918/07 PS Prashant Vihar On perusal and analysis of the testimony of the said witnesses it is indicated that as per PW20 HC Ram Singh the rukka was received by him at 4.50 AM and it took him around 45 minutes in registering the FIR meaning thereby on simple calculation that FIR was registered by PW20 HC Ram Singh by 5.35 AM and by 5.35 AM Ct. Ashok must have left the police station for the spot. While as per PW26 ACP Naval Kishore the tehrir and the copy of FIR was handed over to him by Ct. Ashok at the spot at about 4.45 or 5.00 AM. How it could be, when PW20 HC Ram Singh is deposing that he received the rukka at 4.50 AM and it took him around 45 minutes in registering the FIR whereby the FIR could not be made available at the spot in any of the eventuality before 5.35 AM. No plausible explanation has been placed by the prosecution in this regard. It speaks volume on the manner of the investigation carried out by the investigating agency.

MEDICAL EVIDENCE:

16. PW7 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Jahangirpuri, Delhi, who deposed that he conducted postmortem on the dead body of Dimple @ Sonu and proved the postmortem report Ext. PW7/A. 35 of 100 36 FIR No. 918/07 PS Prashant Vihar PW7 Dr. K. Goel, in his examinationinchief has deposed that "On external examination the following injuries were found on the body:

1. Almost circular lacerated perforated wound 0.8 x 0.8 cm with contusedabraded collar with backening around in 1.5 x 1.5 cm over left side of chest about 7 cm left to midline and about 7.5 cm below clavicle and about 4.5 cm obliquely up from left nipple. Margins were inverted (entry wound of fire).

2. There was oval shape lacerated perforated wound 1 x 0.8 cm with everted margins over left side back of chest about 6.5 cm left to midline back of chest and about 9 cm below inferior border of left scapula. No blackening, tattooing or abraded collar seen around the wound (exit wound of firearm).

On internal examination the injury no. 1 entered the chest cavity through left fourth intercostal space directing slightly obliquely downwards, pierced the left lung through and through obliquely downwards, factured the tenth on the left side from back and came out through injury no. 2. The subcutaneous tissues and muscles at entry point showed cherry red discoloration all around. Large amount of blood and clots were seen in left chest cavity. The direction and plain of the track was from front behind and lightly above downwards.

36 of 100 37 FIR No. 918/07 PS Prashant Vihar Opinion:

The cause of death was haemorrhagic shock and element of respiratory distress as a result of extensive chest and lung injury caused by firearm which was rifled. Range of firearm was closed range. All injuries were antemortem in nature. Firearm injury was sufficient to cause death in ordinary course of nature. Time since death was about 1718 hours."

Despite grant of opportunity PW7 Dr. K.Goel was not cross examined. His testimony remained unchallenged. I have carefully perused and analysed the testimony of PW7 Dr. K. Goel and the postmortem report Ext. PW7/A. His testimony is cogent, convincing and trustworthy.

In the circumstances, it stands proved on the record that the death of Dimple @ Sonu was homicidal in nature.

SCENE OF CRIME AND CONDUCT OF ACCUSED:

17. It is undisputed that the place of occurrence i.e H.No. G1/60, Sector15, Rohini, Delhi was under the tenancy of Dimple Rana (since deceased) at a monthly rent of Rs. 7,000/ vide rent agreement Ext. PW6/A. During her statement recorded u/s 313 Cr.P.C accused Suman @ Simran has

37 of 100 38 FIR No. 918/07 PS Prashant Vihar not disputed the said factum of tenancy of said house.

PW26 ACP Naval Kishore in his examinationinchief has deposed that "On 25.12.2007 I was posted at PS Prashant Vihar as SHO. The incident had taken place on the intervening night of 25/26.12.2007 as DD No. 3 i.e Ext. PW10/A was received that firing incident has taken place (goli chal gayi). ASI Rajinder Singh to whom DD No. 3 was entrusted alongwith Ct. Ashok had gone to the spot i.e H.No. G1/60, Sector15, Rohini. SI Mahender Singh was also reached at the spot. I was informed about the circumstances of the case telephonically by SI Mahender Singh. I also gone to the spot from the PS where ASI Rajinder Singh, SI Mahender Singh alongwith other public staff met me. ASI Rajinder Singh registered the case and after registration of the case I took over the investigation of this case. A tehrir and copy of FIR was handed over to me by Ct. Ashok at the spot at about 4.45 or 5.00 pm. I inspected the spot and found a deadbody of a young, person profound with blood was lying on the ground floor of the house. The deadbody was wearing Sports shoes, Tshirt and a vest under T shirt and jeans. I had also inspected the dead body and a gun shot injury was found on the left side of the chest and having also the exit wound as the shorts were cross over the body (Aarpar). One liquor bottle having little liquor in it, one empty glass and a plate having pieces of apple and an opened cashew nut packet were found near the dead body. On the left side of the dead body a fired cartridge was found towards leg. On the south side of dead body near bathroom a lead of a fired short was found. Under the bed towards its back side on the floor in the south west direction, a pistol was 38 of 100 39 FIR No. 918/07 PS Prashant Vihar also found towards the leg side (paro ki taraf) of the dead body".

From the aforesaid narration of PW26 ACP Naval Kishore it is clearly indicated that at the time of his visit at the spot in the intervening night of 25/26.12.2007 the scene of occurrence was found intact and there was no indication that it has been disturbed.

To the same effect is the testimony of PW23 SI Mahender Singh and PW24 SI Rajinder Singh.

It is not the case of the prosecution that accused Suman @ Simran and accused Muskan @ Ruby had fled after the alleged occurrence. It is the admitted case of the prosecution that both the accused Suman @ Simran and accused Muskan @ Ruby had been arrested from the house G1/60, Sector16, Rohini, Delhi, of the place of occurrence on 27.12.2007 vide arrest memo Ext. PW16/B (also Ext. PW23/G) and Ext. PW16/A respectively and their personal searches were conducted vide memos Ext. PW16/D and Ext. PW16/C respectively.

39 of 100 40 FIR No. 918/07 PS Prashant Vihar Section 8 of Indian Evidence Act, 1872 provides for motive, preparation and previous or subsequent conduct.

It reads as :

8. Motive, preparation and previous or subsequent conduct. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceedings in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. When the conduct of any person is relevant, any statement made to him or in his resence and hearing, which affects such conduct, is relevant.

Illustrations (e) and (i) appended to Section 8 of Indian Evidence Act, 1872 reads as

(e). A is accused of a crime.

The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an 40 of 100 41 FIR No. 918/07 PS Prashant Vihar appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

(i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant, to conceal things which were might have been used in committing it, are relevant.

In view of above and in the circumstances, it stands established that scene of crime was intact and there is nothing to indicate on the record that the accused persons, destroyed, disturbed or concealed the evidence at the scene of crime or that they had absconded after the alleged commission of the crime. The said facts are relevant as the conduct of the accused under section 8 of the Indian Evidence Act, 1872.

DISCLOSURE STATEMENTS OF ACCUSED:

18. The perusal of the record shows that the disclosure statement of accused Suman and that of accused Muskan Ext. PW23/H and Ext. PW23/J

41 of 100 42 FIR No. 918/07 PS Prashant Vihar respectively are both dated 27.12.2007.

PW23 SI Mahender Singh in his examinationinchief has deposed that disclosure statements of accused Suman Ext. PW23/H and that of accused Muskan Ext. PW23/J were recorded and signed by him at Points A. PW23 SI Mahender Singh during his crossexamination recorded on 18.10.2011 has deposed that "Disclosure statements of Suman was recorded (at) first instance and accused Muskan was also present there."

PW26 ACP Naval Kishore, IO in his crossexamination recorded on 12.03.2012 has deposed "The disclosure statements Ext. PW23/H and PW23/J were recorded by me by sitting on a bed lying there at the spot. The disclosure statements Ext. PW23/H and PW23/J were recorded in the presence of both the accused persons."

42 of 100 43 FIR No. 918/07 PS Prashant Vihar The said part of testimony of PW23 SI Mahender Singh and PW26 ACP Naval Kishore is not corroborated by PW24 SI Rajender Singh who during his crossexamination recorded on 05.01.2012 has deposed "When the disclosure statement of one accused was being recorded the other accused was sent in another room."

PW24 SI Rajender Singh during his crossexamination has also deposed "I did not sign arrest memo and disclosure statements of accused persons."

"I do not recollect in whose handwriting the disclosure statements of accused persons were recorded but it was recorded at the spot itself while sitting in a room constructed in the right side of the entry of the house."

As per the prosecution PW24 SI Rajender Singh is the police official who joined the investigation of this case. The said witness is deposing specifically about the manner in which the disclosure statements of the accused were recorded i.e when the disclosure statement of one accused was being recorded the other accused was sent in another room. But it is 43 of 100 44 FIR No. 918/07 PS Prashant Vihar quite strange that he does not recollect as to who had written the disclosure statements of the accused and in whose handwriting the disclosure statements Ext. PW23/H and Ext. PW23/J are. Moreover, PW24 SI Rajender Singh has deposed that he did not sign the disclosure statements of the accused persons. Why he did not sign the disclosure statements of the accused persons when he was a witness to the process of recording of the disclosure statements of the accused persons and had joined investigation and was a part of it. No explanation has been placed by the prosecution in this regard. It raises a question regarding the fairness of the investigation carried out by the investigating agency. It creates doubt and suspicion in the prosecution case and does not rule out false implication.

19. PW26 ACP Naval Kishore in his examinationinchief has deposed that on 28.12.2007 both the accused persons were interrogated further and their further disclosure statements Ext. PW1/E (accused Muksan @ Ruby) and Ext. PW1/D (accused Suman @ Simran) were recorded.

The said supplementary disclosure statements dated 28.12.2007 have been proved as Ext. PW1/E and Ext. PW1/D by PW1 Amardeep @ Vicky.

44 of 100 45 FIR No. 918/07 PS Prashant Vihar Nothing has been proved or explained by the prosecution on the record as to what were the circumstances and what necessity arose, under which the supplementary disclosure statements of the accused persons were recorded on 28.12.2007 Ext. PW1/D and Ext. PW1/E, especially when the disclosure statements of both the accused Ext. PW23/H (accused Suman @ Simran) and Ext. PW23/J (accused Muskan @ Ruby) as discussed herein above had already been recorded on 27.12.2007, the date on which they were arrested. More so when PW1 Amardeep @ Vicky himself was a 'suspect' 'and was under investigation of the police since 26.12.2007 and as to what has transpired and taken place (which remained a mystery as nothing had been proved and produced on record in this regard by prosecution) that he (PW1 Amardeep @ Vicky) has been made a star public witness in this case and is proving the supplementary disclosure statements Ext. PW1/D & Ext. PW1/E both dated 28.12.2007.

20. Although in the later part of the judgment I will discuss and analyse the relevant evidence in detail yet in the interest of justice, at the cost of repetition, being pertinent I discuss it here in brief also.

45 of 100 46 FIR No. 918/07 PS Prashant Vihar PW1 Sh. Amardeep @ Vicky in his examinationinchief has deposed that on 26.12.2007 he went to police and gave his statement to police.

It means PW1 Sh. Amardeep @ Vicky of his own had gone to the police on 26.12.2007 and gave his statement. He was not either called by the police or brought to the police station by the police.

While during his crossexamination PW1 Sh. Amardeep @ Vicky has taken a complete Uturn and has admitted it to be correct that in the morning of 26.12.2007, the police officials brought him to the police station and he remained there for about 34 hours.

The testimony of PW1 Sh. Amardeep @ Vicky is not at all corroborated by PW26 ACP Naval Kishore and PW15 Ct. Akhilesh.

During his crossexamination recorded on 12.03.2012 PW26 ACP Naval Kishore has totally ruled out, of the coming of PW1 Sh. Amardeep @ Vicky of his own on 26.12.2007 to police and of giving of his statement to police and of the recording of the statement of PW1 Sh.

46 of 100 47 FIR No. 918/07 PS Prashant Vihar Amardeep @ Vicky on 26.12.2007 by the police and has deposed that on 28.12.2007 Amardeep (PW1) had come to the Police Chowki, Sector16, Rohini to give information relating to the present case.

PW26 ACP Naval Kishore in his crossexamination recorded on 26.12.2007 has voluntarily deposed that before 28.12.2007 Amardeep met beat constable Akhilesh (PW15) who brought Amardeep to the police post and he (Const. Akhilesh) was also examined on 26.12.2007. Even the said voluntary deposition of PW26 ACP Naval Kishore, IO, is not corroborated by PW15 Akhilesh, who has not uttered a single word in this regard in his entire testimony.

In the circumstances, either PW1 Amardeep @ Vicky is telling a lie or PW26 ACP Naval Kishore is making a futile attempt to conceal the truth. If the testimony of PW26 ACP Naval Kishore is taken to be true that on 28.12.2007 PW1 Amardeep @ Vicky had come to the Police Chowki, Sector16, Rohini, to give information related to the present case, meaning thereby till 28.12.2007, PW1 Amardeep @ Vicky was not in picture and has not met with the police. But the testimony of PW26 ACP Naval Kishore has been falsified by PW1 Amardeep @ Vicky who during his cross 47 of 100 48 FIR No. 918/07 PS Prashant Vihar examination has deposed that in the morning of 26.12.2007, the police officials brought him to the police station and he remained there for about 34 hours. If the testimony of PW1 Amardeep @ Vicky is taken to be true then how is it possible that PW26 ACP Naval Kishore being the IO and SHO, was not aware of the bringing of PW1 Amardeep @ Vicky in the Police Station in the morning of 26.12.2007 by the police officials and of detaining him there for about 34 hours and was not aware on the basis of which information (whether provided by accused Muskan of the committal of offence by PW1 Amardeep @ Vicky) he (PW1 Amardeep @ Vicky) was brought to Police Station in the morning of 26.12.2007. It creates doubt and suspicion in the prosecution case and the testimony of the said prosecution witnesses do not inspire confidence.

The perusal of supplementary disclosure statement Ext. PW1/D dated 28.12.2007 of accused Suman @ Simran shows that pursuant to earlier disclosure statement dated 27.12.2007 (Ext. PW23/H) she has already got the recovery effected of jewellery and clothes and she is making this disclosure statement (Ext. PW1/D) as she had concealed one fact in the earlier disclosure statement (Ext. PW23/H) dated 27.12.2007 that Dimple Rana used to supply girls and also used to send them (accused Suman @ 48 of 100 49 FIR No. 918/07 PS Prashant Vihar Simran and accused Muskan to the customers and also used to exploit them.

It is the case of prosecution that no recovery was effected at the instance of accused Suman @ Simran (or accused Muskan @ Ruby) on 27.12.2007 and whatever alleged recoveries have been effected they have been effected only on 28.12.2007, meaning thereby at the time of recording of supplementary disclosure statement Ext. PW1/D dated 28.12.2007; no recovery had been effected in pursuance of disclosure statement Ext. PW23/H dated 27.12.2007.

In the circumstances; the recording of supplementary disclosure statement Ext. PW1/D dated 28.12.2007 does not inspire confidence and the same appears to have been recorded with a view to create evidence. Further even if for the sake of argument, the supplementary disclosure statement Ext. PW1/D dated 28.12.2007 is taken to true then the mentioning of very fact in it that recoveries of jewellery and clothes pursuant to earlier disclosure statement dated 27.12.2007 (PW23/H) had already been effected, nullifies the alleged recoveries made on 28.12.2007 in pursuance of disclosure statement Ext. PW23/H dated 27.12.2007. It is well said that man may lie 49 of 100 50 FIR No. 918/07 PS Prashant Vihar but not the documents.

In view of above and in the circumstances, the act of recording of supplementary disclosure statements of the accused persons on 28.12.2007 Ext. PW1/D and Ext. PW1/E witnessed by none else but by PW1 Amardeep @ Vicky who himself was a 'suspect' has knocked out the bottom of the edifice of the prosecution case regarding the alleged recoveries made on 28.12.2007 pursuant to disclosure statement Ext. PW23/H dated 27.12.2007 and creates doubt and suspicion in the prosecution case and raises a question on the fairness of investigation and does not rule out false implication.

BALLISTIC EVIDENCE:

21. PW26 ACP Naval Kishore in his examinationinchief has deposed that "The pistol which was having a live cartridge, empty cartridge lying on the ground and a lead which was found near the dead body were converted into two pulandas and sealed with the seal of NK and seized the same vide seizure memo Ext. PW23/D which were given serial no. 4 & 5, 50 of 100 51 FIR No. 918/07 PS Prashant Vihar before seizure the sketch of the pistol, live and empty cartridge were prepared, the same is Ext. PW23/C."

Pistol is Ext. P7, deformed lead Ext. P9 and cartridge case Ext. P8.

PW7 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Jahangirpuri, Delhi in his examinationinchief has deposed that "On 26.12.07 I conducted postmortem on the dead body of Dimple @ Sonu aged about 23 years male which was sent by Inspector Naval Kishore PS Prashant Vihar with alleged history of fire arm injury. The clothes on the body were full sleeves Tshirt having one hole for left upper chest area with burnt margins and blackening around and smeared with blood. There was another hole small in size over left side middle back of chest area having no burning or blackening. One jean part, blue underwear and a pair of shoes and socks were also present".

PW25 Sh. K.C. Varshney, Assistant Director, Ballistic Division, FSL, Rohini, Delhi, who is the ballistics expert, who proved the FSL report Ext. PW25/A. 51 of 100 52 FIR No. 918/07 PS Prashant Vihar For better appreciation, let the FSL report Ext. PW25/A be reproduced. It reads as under:

1. DESRIPTION OF PARCEL (S): White cloth sealed parcel(s): 04 (four) Total: 04 (four) Four sealed cloth parcel (s); seals were intact and tallied with the specimen seals as per forwarding letter (FSL FORM).

2. DESCRIPTION OF ARTICLES CONTAINED IN THE PARCEL (S)/EXHIBIT (S):

Parcel No. & Seal Description of Exhibit (s) contained in parcel (s) no. Impression 4 08 N K One improvised pistol 7.65mm caliber marked exhibit 'F1'.

4 A 04 N K One 7.65mm cartridge marked exhibit 'A1' and one 7.65mm cartridge case (percussion cap is absent) marked exhibit 'EC1'.

5 06 N K One deformed bullet marked exhibit 'EB1'. 7 06 K G BJRM One white colour full sleeve shirt marked exhibit HOSPITAL 'C1' having one hole in front at left side marked 'H1' MORTUARY & another hole at middle back marked 'H2', one jeans pant marked exhibit 'C2', one blue underwear marked exhibit 'C3', one pair of socks and shoes marked exhibits 'C4/1' to 'C4/4'.

52 of 100 53 FIR No. 918/07 PS Prashant Vihar

3. RESULS OF EXAMINATION/OPINION: (1) The improvised pistol 7.65mm caliber marked exhibit 'F1' is designed of fire a standard 7.65mm cartridge. It is in working order in its present condition, Test fire conducted successfully. (2) The 7.65mm cartridge marked exhibit 'A1' is live one and can be fired through 7.65mm caliber firearm.

(3) The 7.65mm cartridge case marked exhibit 'EC1' is a fired empty cartridge.

(4) The deformed bullet marked exhibit 'EB1' corresponds to the bullet of 7.65mm.

(5) The 7.65mm cartridge marked exhibit 'A1' was test fired through the improvised pistol 7.65mm caliber marked exhibit 'F1' above and the test fired cartridge case was marked as 'TC1' and the recovered bullet was marked as 'TB1'.

(6) No opinion can be given regarding exhibit 'EC1' due to insufficient data whether it has been fired through improvised pistol 7.65 mm caliber marked exhibit 'F1' above or not.

(7) No opinion can be given regarding exhibit 'EB1' due to insufficient data whether it has been discharged through improvised pistol 7.65 mm caliber marked exhibit 'F1' above or not.

53 of 100 54 FIR No. 918/07 PS Prashant Vihar (8) On the basis of physical examination, microscopic examination and gun short residue particle analysis, the hole marked 'H1' on the left front side of full sleeve shirt marked exhibit 'C1' may be entry hole and the hole 'H2' on the middle back side of full sleeve shirt marked exhibit 'C1' may be exit hole, may be caused by bullet discharged through firearm.

(9) The exhibits 'F1'/'A1', 'EC1' and 'EB1' are firearm/ammunition as defined in the Arms Act. 1959.

Note: Case Exhibits/Remnants of Exhibits sent to this laboratory for examination have been sealed with the seal of KCV FSL DELHI.

On careful perusal and analysis of the FSL report Ext. PW25/A, as per the ballistics expert, no opinion can be given regarding exhibit EC1 (Ext. P8), the empty fired cartridge due to insufficient data whether it has been, fired through improvised pistol 7.65 mm caliber marked exhibit 'F1' (Ext. P7) or not.

Further, as per ballistics expert, no opinion can be given regarding exhibit EB1 (Ext. P9 and Ext. P13), the deformed bullet due to insufficient data whether it has been discharged through improvised pistol 7.65 mm caliber marked exhibit 'F1' (Ext. P7) or not.

54 of 100 55 FIR No. 918/07 PS Prashant Vihar Further as per ballistics expert, on the basis of physical examination, microscopic examination and gun short residue particle analysis, the hole marked 'H1' on the left front side of full sleeve shirt marked exhibit 'C1' may be entry hole and the hole 'H2' on the middle back side of full sleeve shirt marked exhibit 'C1' may be exit hole, may be caused by bullet discharged through firearm.

It is to be noticed that FSL report Ext. PW25/A is totally silent and it is no where been opined that the entry and exit holes H1 and H2 in the full sleeve shirt marked exhibit C1 (Ext. P14) have been caused by the firing with firearm exhibit F1 (Ext. P7).

In view of above, as per FSL report Ext. PW25/A, no nexus could be established between the pistol Ext. F1 (Ext. P7) and the fired empty cartridge Ext. EC1 (Ext. P8) and the deformed bullet Ext. EB1 (Ext. P9 and Ext. P13), which was fired upon the deceased and recovered at the spot.

It means pistol Ext. F1 (Ext. P7) is not the "weapon of offence".

55 of 100 56 FIR No. 918/07 PS Prashant Vihar If the deformed bullet (Ext. P9) allegedly recovered from the spot was not fired from pistol Ext. F1 (Ext. P7) upon the deceased, then it must have been fired from some other weapon, where is that weapon?

In the circumstances, the recovery of pistol Ext. F1 (Ext. P7) fired empty cartridge Ext. EC1 (Ext. P8) and deformed bullet Ext. EB1 (Ext. P9 and Ext. P13) seized vide seizure memo Ext. PW23/D also becomes doubtful.

No explanation has been placed by the prosecution in this regard. Failure on the part of the prosecution to place any explanation in this regard has knocked out the bottom of the case of the prosecution whereby the prosecution has miserably failed to prove that accused Suman @ Simran (and accused Muskan @ Ruby, being juvenile her case has been separated) committed murder of Dimple by firing upon him through pistol Ext. F1 (also Ext. P7).

TIME SINCE DEATH - LOCATION OF PW1 AMARDEEP @ VICKY - HOW POLICE CAME TO KNOW ABOUT PW1 AMARDEEP @ VICKY :

22. PW1 Amardeep @ Vicky in his examinationinchief has 56 of 100 57 FIR No. 918/07 PS Prashant Vihar deposed that "On 25.12.2007 at about 9.00 PM I was going from the road in front of the house of Dimple on my bike and both the accused were crossing the road and they were hiding something in a form of potli or panni and they said "Aaj Hamne Uska Kaam Kar Diya He" At that time I did not pay any attention and passed away as I did not take their word seriously. Police officials were making inquiries on the next day. I went there i.e on 26.12.2007 and I gave my statement to police."

During his crossexamination PW1 Amardeep Singh @ Vicky has deposed that "I gave my statement to the police in the morning of 26.12.2007. I stated to the police what they asked. I do not know initially that I was the suspect. I do not know if the accused persons ever made a complaint against me. Police never told me about any such complaint. It is correct that in the morning of 26.12.2007, the police officials brought me to the police station. I remained there for about 34 hours." (underlined by me.) PW7 Dr. K. Goel, Chief Medical Officer, BJRM Hospital, Jahangirpuri, Delhi, who conducted the postmortem on the dead body of deceased Dimple and proved the postmortem report Ext. PW7/A. 57 of 100 58 FIR No. 918/07 PS Prashant Vihar The perusal of postmortem Ext. PW7/A shows that the postmortem started at 3.15 PM on 26.12.2007 and time since death has been opined as about 1718 hours.

On simple arithmetical calculation, the time of causing of death comes to between 9.15 PM to 10.15 PM on 25.12.2007 as per the postmortem report Ext. PW7/A. Time since death in postmortem report Ext. PW7/A concides with the time when as per deposition of PW1 Amardeep @ Vicky was going from the road in front of the house of Dimple on his bike and had met both the accused (accused Suman and accused Muskan) crossing the road and they were hiding something in the form of potli or panni and had said to him (PW1 Amardeep @ Vicky) "Aaj Hamne Uska Kaam Kar Diya He".

PW26 ACP Naval Kishore, IO in his crossexamination recorded on 12.03.2012 has deposed that 58 of 100 59 FIR No. 918/07 PS Prashant Vihar "Q. When did you meet public witness Amardeep and how for the first time?

Ans. On 28.12.2007 Amardeep had come to the police chowki Sector 16 Rohini to give information relating to the present case. Vol. who was thereupon examined regarding the same. Before that Amardeep met with beat constable Akhilesh who brought Amardeep to the police post and he (Const. Akhilesh) was also examined on 26.12.2007.

Q. Is it correct that on 26.12.2007 accused Muskan had told you that it was Amardeep who had committed the offence and thereafter you lifted Amardeep from his house and interrogated him for 34 hours in the police station?

Ans. It is incorrect.

On 26.12.2007 I remained at the spot for about 21/2 hours.

Q. Is it correct to say that on 26.12.2007 you had directed Amardeep to again come on 28.12.2007 and then recovery will be affected?

Ans. It is incorrect. Vol. Amardeep of his own had been joining the investigation and had also joined the 59 of 100 60 FIR No. 918/07 PS Prashant Vihar investigation on 28.12.2007".

"Q. Is it correct to say that till 27.12.2007 except for the statement of Amardeep there was no other in criminating material which had come against both the accused Suman and Muskan during the investigation?

Ans. During the postmortem the doctor's opinion was sought as to the time since death of the deceased. At 3.00 pm on 26.12.2007 the body of the deceased was taken to the mortuary and at that time the doctor's opinion on the said aspect was sought who had opined that the time since death of deceased was about 17/18 hours before. The information was received by us at 1.25 am in the intervening night of 25/26.12.2007 and on calculation on the basis of the doctor's opinion it was revealed that the information was received by us at 1.25 am in the intervening night of 25/26.12.2007 after about four hours of the death of the deceased and making it as a base, the further line of investigation was chalked out. Both the accused Suman and Muskan were intensively interrogated on 27.12.2007 and both the accused confessed their crime."

PW26 ACP Naval Kishore, IO in his crossexamination recorded on 12.03.2012 has further deposed that 60 of 100 61 FIR No. 918/07 PS Prashant Vihar "Q. Where did you meet Amardeep on 28.12.2007?

Ans. He had come to the police station.

Amardeep had come at about 9.00 am in the morning in the police station on 28.12.2007."

PW26 ACP Naval Kishore, IO in his examinationinchief has deposed that "During postmortem I raised a query about the time since death to the concerned doctor and who confirmed that the death had been caused about 17 to 18 hours before and on the basis of record it was received that the first information to the PCR was given at 1.25 AM on 26.12.2007 and it was about 4 or 4.5 hours later when the death was caused."

PW15 Ct. Akhilesh Kumar in his examinationinchief has deposed that "On 26/12/07, I was posted at PS Prashant Vihar as Constable. On that day, Duty Officer handed over me three envelopes with instructions to hand over the same to concerned MM, DCP and Joint CP. At about 5:30 a.m., I left the PS on my Government motorcycle No. DL1SN4129 alongwith said three envelopes and delivered one envelope at the residence of Ld. Area MM, one envelop at the residence of DCP and one envelop at the residence of Joint CP. IO had recorded my statement."

61 of 100 62 FIR No. 918/07 PS Prashant Vihar Now let me peruse and analyse the testimony of PW1 Sh. Amardeep @ Vicky in conjunction with the testimonies of PW26 ACP Naval Kishore, IO and PW15 Ct. Akhilesh.

PW1 Sh. Amardeep @ Vicky in his examinationinchief (as reproduced hereinabove) has deposed that on 26.12.2007 he went to police and gave his statement to police.

It means PW1 Sh. Amardeep @ Vicky of his own had gone to the police on 26.12.2007 and gave his statement. He was not either called by the police or brought to the police station by the police.

While during his crossexamination PW1 Sh. Amardeep @ Vicky (as reproduced hereinabove) has taken a complete Uturn and has admitted it to be correct that in the morning of 26.12.2007, the police officials brought him to the police station and he remained there for about 34 hours.

62 of 100 63 FIR No. 918/07 PS Prashant Vihar The testimony of PW1 Sh. Amardeep @ Vicky is not at all corroborated by PW26 ACP Naval Kishore and PW15 Ct. Akhilesh.

During his crossexamination recorded on 12.03.2012 (as reproduced hereinabove) PW26 ACP Naval Kishore has totally ruled out, of the coming of PW1 Sh. Amardeep @ Vicky of his own on 26.12.2007 to police and of giving of his statement to police and of the recording of the statement of PW1 Sh. Amardeep @ Vicky on 26.12.2007 by the police and has deposed that on 28.12.2007 Amardeep (PW1) had come to the Police Chowki, Sector16, Rohini to give information relating to the present case.

PW26 ACP Naval Kishore in his crossexamination recorded on 26.12.2007 (as reproduced hereinabove) has voluntarily deposed that before 28.12.2007 Amardeep met beat constable Akhilesh (PW15) who brought Amardeep to the police post and he (Const. Akhilesh) was also examined on 26.12.2007. Even the said voluntary deposition of PW26 ACP Naval Kishore, IO, is not corroborated by PW15 Akhilesh, who has not uttered a single word in this regard in his entire testimony, as reproduced hereinabove.

63 of 100 64 FIR No. 918/07 PS Prashant Vihar

24. In the circumstances, either PW1 Amardeep @ Vicky is telling a lie or PW26 ACP Naval Kishore is making a futile attempt to conceal the truth. If the testimony of PW26 ACP Naval Kishore is taken to be true that on 28.12.2007 PW1 Amardeep @ Vicky had come to the Police Chowki, Sector16, Rohini, to give information related to the present case, meaning thereby till 28.12.2007, PW1 Amardeep @ Vicky was not in picture and has not met with the police. But the testimony of PW26 ACP Naval Kishore has been falsified by PW1 Amardeep @ Vicky who during his cross examination has deposed that in the morning of 26.12.2007, the police officials brought him to the police station and he remained there for about 34 hours. If the testimony of PW1 Amardeep @ Vicky is taken to be true then how is it possible that PW26 ACP Naval Kishore being the IO and SHO, was not aware of the bringing of PW1 Amardeep @ Vicky in the Police Station in the morning of 26.12.2007 by the police officials and of detaining him there for about 34 hours and was not aware on the basis of which information (whether provided by accused Muskan of the committal of offence by PW1 Amardeep @ Vicky) he (PW1 Amardeep @ Vicky) was brought to Police Station in the morning of 26.12.2007. It creates doubt and suspicion in the prosecution case and the testimony of the said prosecution witnesses do not inspire confidence.

64 of 100 65 FIR No. 918/07 PS Prashant Vihar

25. Further, in the circumstances, the suggestion put to PW26 ACP Naval Kishore during his crossexamination recorded on 12.03.2012 (as reproduced hereinabove) by the Ld. Defence Counsel that on 26.12.2007 accused Muskan had told him that it was Amardeep (PW1) who had committed the offence and thereafter he (PW26 ACP Naval Kishore) lifted Amardeep from his house and interrogated him for 34 hours in the police station which was negated by him (PW26 ACP Naval Kishore) appears to have substance.

26. In view of above and in the circumstances, the theory of going from the road in front of the house of Dimple on his (PW1 Amardeep @ Vicky) bike on 25.12.2007 at about 9.30 PM and of meeting of accused persons crossing the road and of their hiding something in a form of potli or panni and of their saying to PW1 Amardeep @ Vicky "Aaj Hamne Uska Kaam Kar Diya He" and of nonpaying any attention to these words of the accused by PW1 Amardeep @ Vicky as propounded by PW1 Amardeep @ Vicky falls flat to the ground.

65 of 100 66 FIR No. 918/07 PS Prashant Vihar It appear that a thick blanket of cover up operation was put into action to save the real culprit, during the course of investigation by the investigating agency. It creates doubt and suspicion in the prosecution case and does not rule out false implication. Rather it gives a credence and substance to the plea of accused Suman @ Simran that she is innocent. She has been falsely implicated in this case at the instance of PW1 Amardeep who was a real culprit and also lifted by the police officials on the morning of 26.12.2007. She has nothing to do with the offence. At the time of incident only Muskan was present at the spot where Amardeep alongwith one another person came and had scuffled with Dimple Rana and later on fled from the spot after firing on Dimple. She has been falsely implicated in this case by Amardeep in collusion with the police officials.

RELATION OF PW1 AMARDEEP @ VICKY WITH DECEASED DIMPLE RANA AND CONDUCT OF PW1 AMARDEEP @ VICKY QUA THE DISCLOSURE ALLEGEDLY MADE TO HIM BY ACCUSED :

27. PW1 Amardeep Singh @ Vicky in his examinationinchief has deposed that 66 of 100 67 FIR No. 918/07 PS Prashant Vihar "I am a govt. contractor and property dealer. I knew the deceased Dimple. I got house no. G1/60 Sector15, Rohini belonging to Sh. Jagdish Prasad Sharma on a monthly rent of Rs. 7,000/for Dimple in the year 2007 as a property dealer and I also witnessed the Rent Agreement. Dimple was living in the house with accused Simran and Muskan. Both the accused are present in the court today. The witness has correctly identified them. Both the women were involved in Flesh trade and the Dimple told me that he is also a property dealer. I used to visit the house of Dimple once or twice in a month. Whenever I visited the house of Dimple I found both the accused quarrelling with Dimple over the money matters. Both the accused used to demand money from Dimple and Dimple refused to give the same. Both the accused threatened Dimple to see him. 67 days prior to 25.12.2007 I visited the house of Dimple, at that time he was under the influence of liquor and both the accused persons were quarrelling with him. Both the accused were saying to him that Dimple was enjoying life on their money and demanded money but Dimple refused forgiving money to them. At this accused persons threatened Dimple with dire consequences. I pacified the matter returned back."

From the said narration of the witness it is clearly indicated that he knew the accused Dimple very well. He also assisted Dimple (since deceased) in getting the rented accommodation at H.No. G1/16, Sector15, Rohini, Delhi and also witnessed the rent agreement in respect thereof. He knew both the accused Suman and Muskan as living with Dimple and of 67 of 100 68 FIR No. 918/07 PS Prashant Vihar their occupation. He was visitor to the house of Dimple and had also witnessed the quarrel between the accused persons on money matters and of the threatening of the accused of dire consequences to Dimple and of the pacification of the matter between the accused and the deceased Dimple. It also clearly shows a closeness of PW1 with the deceased Dimple and of knowing very well of the accused persons and also about the reason for quarrel among them and about the threat of the accused persons to the deceased Dimple.

28. During his crossexamination recorded on 30.03.2009 PW1 Amardeep Singh @ Vicky has deposed he (Dimple) was his business partner. He admitted it to be correct that he got space arranged for the office of Dimple. He admitted it to be correct that there was an understanding between him and Dimple that the profits from the joined business will be shared equally.

It is pertinent to reproduce the relevant part of crossexamination of PW1 Amardeep @ Vicky, which reads as under: 68 of 100 69 FIR No. 918/07 PS Prashant Vihar "Dimple was not my friend. He was my business partner. I was not a regular visitor to Dimple. I was working with Dimple with his business partner since about 56 months prior to his death. We did not have any office. We were talking to each other about the business on telephone. It is correct that I got space arranged for the office of Dimple. I do no know where Dimple was having office. Volunteered I was having formal relations with him."

"I would be meeting Dimple once or twice a month."

"It is correct that there was an understanding between me and Dimple that the profits from the Joint business will be shared equally. It is correct to suggest that all the payments were collected and kept by Dimple. The money would be collected by either of us. The money which I would collect, I would handed over to Dimple his share by keeping my share with me."

"Whenever I would meet Dimple it was outside his house. Last time before I met Dimple 45 days before the incident in connection with business. I do not remember as to how many days prior to this meeting I met him. I cannot say before the above mentioned meeting when I met Dimple. Before this I used to visit Dimple's house once or twice in a month. There was no Agreement in writing between me and Dimple regarding our business dealing."

"I had told to the police that I and Dimple were business partners. Confronted with statement Ex PW 1/DA where it is not so recorded."

69 of 100 70 FIR No. 918/07 PS Prashant Vihar

29. It is also to be noticed as to the alleged disclosure of accused what PW1 Amardeep @ Vicky in his examinationinchief has deposed which is reproduced and reads as under: "On 25.12.2007 at about 9.00 PM I was going from the road in front of the house of Dimple on my bike and both the accused were crossing the road and they were hiding something in a form of potli or panni and they said "Aaj Hamne Uska Kaam Kar Diya He" At that time I did not pay any attention and passed away as I did not take their word seriously. Police officials were making inquiries on the next day. I went there i.e on 26.12.2007 and I gave my statement to police."

During his crossexamination recorded on 30.03.2009 PW1 Amardeep @ Vicky has deposed that "When the accused persons told me "Hamne Kaam Kar Diya", I did not suspect any foul play at all so I did not go to the house of Dimple. On the night of incident I alone was going from my house to the market of Sector13, Rohini. There was nothing strange when accused told me "Hamne Kaam Kar Diya" as though I was not having any relationship with any of the accused yet they were not strangers to me as I had seen them in the house of Dimple. It is correct that both I and Dimple were having mobile phones and I had the mobile number of dimple. I did not make any call to Dimple as I did not suspect anything."

70 of 100 71 FIR No. 918/07 PS Prashant Vihar On careful perusal and analysis of the testimony of PW1 Amardeep @ Vicky, the said conduct of PW1 Amardeep @ Vicky in the given facts and circumstances when tested on the anvil of ordinary reaction of a normal person cannot withstand scrutiny. As discussed hereinabove PW1 has admitted that Dimple (since deceased) was a business partner and was also aware about the alleged quarrel between the accused persons and Dimple (since deceased) and also about the alleged threatening of the accused persons to Dimple of dire consequences and of his (PW1) alleged pacification of the matter between the Dimple (since deceased) and the accused persons, then how is it that on hearing the words of accused persons 'Aaj hamne uska kam kar diya hai' Why PW1 had not reacted as an ordinary person to become curious on hearing these words to know more as to what the accused meant by the said words and what infact they had done and why he did not try to know from the Dimple by telephoning him when admittedly he was having his mobile phone number. It raises a needle of suspicion towards PW1 Amardeep @ Vicky.

At the cost of repetition while discussing under the heading "Time since deathLocation of PW1 Amardeep @ Vicky How police 71 of 100 72 FIR No. 918/07 PS Prashant Vihar came to know about PW1 Amardeep @ Vicky" hereinbefore, I have held that, the theory of going from the road in front of the house of Dimple on his bike on 25.12.2007 at about 9.30 PM and of meeting of accused persons crossing the road and of their hiding something in a form of potli or panni and of their saying to PW1 Amardeep @ Vicky "Aaj Hamne Uska Kaam Kar Diya He" and of nonpaying any attention to these words of the accused by PW1 Amardeep @ Vicky as propounded by PW1 Amardeep @ Vicky falls flat to the ground.

RECOVERIES AT THE INSTANCE OF ACCUSED FROM KACCHI COLONY, JAIN NAGAR AND SHAKUR BASTI RANI BAGH:

30. PW1 Amardeep @ Vicky in his crossexamination recorded on 30.3.2009 has deposed that "I was again called in the police station on 28.12.2007 and I reached there on that day at about 10.00/11.00 AM. I was alone. Police also joined me in the investigation. I asked the police officials as to why I have been called again whereupon I was told that the same was necessary to effect th th certain recoveries. On 26 itself I was told to come on 28 for the aforesaid purpose." (underlined by me).

72 of 100 73 FIR No. 918/07 PS Prashant Vihar From the aforesaid narration of PW1 Amardeep @ Vicky it is clearly indicated that he was told on 26.12.2007 itself in the police station to come on 28.12.2007 for the purpose of recovery.

It is quite surprising that before the accused persons could be arrested on 27.12.2007, vide arrest memo Ext. PW16/B (also Ext. PW23/G of accused Suman @ Simran), Ext. PW16/A (accused Muskan) before their disclosure statements Ext. PW23/H (accused Suman), Ext. PW23/J (accused Muskan) could be recorded on 27.12.2007 and before their supplementary disclosure statements Ext. PW1/D (accused Suman @ Simran), Ext. PW1/E (accused Muskan) on 28.12.2007, could be recorded, then how PW26 ACP Naval Kishore IO was confident of the arrest of accused persons and that of the recoveries to be effected on 28.12.2007.

In a latest judgment of Hon'ble Supreme Court, titled as "Madhu V/s state of kerala, AIR 2012 SUPREME COURT 664, it has been held that the statements of witnesses to recovery, however, showing that they knew that police would make recovery much before confession was made by accused. Confession made cannot be said to have led to recovery of stolen 73 of 100 74 FIR No. 918/07 PS Prashant Vihar ornaments. Confession not admissible.

31. Against this backdrop, let the recovery evidence be perused and analysed.

RECOVERIES AT KACCHI COLONY, JAIN NAGAR :

32. PW21 Retired SI Ram Phal in his crossexamination has deposed that the recovery place at Jain Nagar was about 1213 km. from PS Prashant Vihar.

As per PW21 Retired SI Ram Phal, one public witness Kuldeep joined the recovery proceedings at Kacchi Colony, Jain Nagar.

PW21 SI Ram Phal in his examinationinchief has deposed that "On 28.12.2007 I was posted at PS Prashant Vihar as SI. On that day I joined investigation alongwith Inspector Nawal (Naval) Kishore. SI Mahender Singh, L/Ct. Kalpana, one Ct. alongwith both the accused Suman and Muskan went to Jain Nagar in a govt. vehicle for further investigation as accused Suman @ Simran disclosed the jewellery article have been hidden at 74 of 100 75 FIR No. 918/07 PS Prashant Vihar a house of Manoj in Jain Nagar, one public witness Kuldeep was also present with us."

During crossexamination PW21 Retired SI Ram Phal has specifically deposed that "I had also mentioned about the public witness Kuldeep with the raiding party. Confronted from statement EX. PW21/DA where it is not so recorded."

"I do not remember whether public witness Kuldeep himself came to be PS or joined on the way with the raiding party. I do not remember whether he was with the raiding party and proceeded in his vehicle or in our vehicle."

His testimony is not corroborated by PW23 SI Mahender, PW24 SI Rajinder and PW26 ACP Naval Kishore.

The said PWs PW23 SI Mahender, PW24 SI Rajinder and PW26 ACP Naval Kishore have not uttered a single word that any person by the name of Kuldeep joined the recovery proceedings at Kacchi Colony, Jain Nagar.

75 of 100 76 FIR No. 918/07 PS Prashant Vihar Moreover, the seizure memos Ext. PW1/A, Ext. PW1/B do not bear the signature of any person by the name Kuldeep. Further no person by the name of Kuldeep has been cited as a witness nor any such person has been examined by the prosecution.

In the circumstances, prosecution failed to explain as to who is this Kuldeep, who joined the recovery proceedings at Kacchi Colony, Jain Nagar regarding which PW21 SI Ramphal has deposed in his testimony.

It creates doubt and suspicion in the prosecution case with regard to recovery effected at the instance of accused Suman @ Simran (and accused Muskan @ Ruby) at Kacchi Colony, Jain Nagar and does not rule out false implication. It does not appeal to the reason that accused will go to a place at Kacchi Colony, Jain Nagar, more than 1213 km away from the place of occurrence to conceal jewellery articles etc. leaving the scene of crime, with the pistol, fired empty cartridge and deformed bullet intact then waiting for the police at the place of occurrence to come and to arrest them.

76 of 100 77 FIR No. 918/07 PS Prashant Vihar

33. Prosecution has cogently and firmly failed to establish the recovery effected at Kacchi Colony, Jain Nagar, vide seizure memo Ext. PW1/A and seizure memo Ext. PW1/B. Even otherwise as far as the alleged recovery of the jewellery articles and cash of Rs. 29,000/, collectively Ext. P1, P2 & P3 vide seizure memo Ext. PW1/A is concerned there was nothing abnormal and unusual about it.

These were the personal items of accused Suman and that of Dimple Rana (since deceased). Undisputably, accused Suman was living with Dimple Rana (since deceased) in a rented accommodation at H.No. G1/60, Sector15, Rohini, Delhi. Moreover, PW2 Narender Rana, brother of deceased during his crossexamination has deposed that it is correct that deceased confirmed that Suman was his wife.

Analysing the said recovery collectively Ext. P1, P2 & P3 vide seizure memo Ext. PW1/A, in the light of the testimony of PW2 Narender Rana, accused Suman being the wife of deceased Dimple Rana was the best person to have the custody of the jewellery articles and gents ring and cash 77 of 100 78 FIR No. 918/07 PS Prashant Vihar collectively Ext. P1, P2 & P3.

Moreover, in the seizure memo Ext. PW1/A of the recovered articles there is no mention that the Gents ring Ext. P2 belonged to the deceased and identified by PW1 Amardeep @ Vicky. Further PW16 L/Ct. Kalpana has not uttered a single word in her testimony that Gents ring Ext. P2 was identified by PW1 Amardeep @ Vicky.

In the circumstances, prosecution has failed to link up the alleged recovery, collectively Ext. P1, P2 & P3 vide seizure memo Ext. PW1/A, with the alleged offence.

34. As far as the recovery of the blood stained clothes of accused persons Ext. P5 (Ext. P5 is also of the liquor bottle) vide seizure memo Ext. PW1/B is concerned, besides there being material discrepancies in the testimony of the prosecution witnesses which go to the root of the matter, there is substance in the submission of Ld. Counsel for accused Suman @ Simran that in the disclosure statement of accused Suman @ Simran Ext. PW23/H, the accused had disclosed that she had left Muskan (accused whose case has been separated being a juvenile) and went to Shakur Pur 78 of 100 79 FIR No. 918/07 PS Prashant Vihar there she hides the articles and clothes (Ext. P5) and returned back to Sector15, Rohini, and surprisingly the alleged clothes were recovered from Jain Nagar Karala and also there is no supplementary statement to support the prosecution case.

35. PW21 Retired SI Ram Phal who was a member of the police party and had joined investigation on 28.11.2007 has deposed with regard to the alleged recoveries made at Kacchi Colony, Jain Nagar. His testimony is totally silent with regard to the recovery of the blood stained clothes of the accused persons at their instance at Kacchi Colony, Jain Nagar, vide seizure memo Ext. PW1/B. Perusal of the seizure memo Ext. PW1/B shows that it has not been signed by him (PW21 SI Ram Phal) though he is a signatory to the seizure memo Ext. PW1/A of the alleged recovery collectively Ext. P1, P2 & P3 effected at Kacchi Colony, Jain Nagar. Prosecution failed to explain, if PW21 SI Ram Phal was a member of the police party of the alleged recoveries effected at Kacchi Colony, Jain Nagar then why he didn't sign the seizure memo Ext. PW1/B. During his crossexamination PW26 ACP Naval Kishore when was asked as to whether SI Ram Phal (PW21) had signed the alleged recovery memo Ext. PW1/B. He gave an evasive reply.

79 of 100 80 FIR No. 918/07 PS Prashant Vihar The relevant part of crossexamination of PW26 ACP Naval Kishore reads as under: Q. Is it correct that Ram Phal and Amardeep were present at the time of the alleged recovery made vide recovery memo Ext. PW1/B? Ans. The signatures of the witnesses, who were present at the time are mentioned in the recovery memo.

36. PW26 ACP Naval Kishore in his crossexamination has deposed he did not prepare the site plan of the place from where the blood stained clothes were recovered vide memo Ext. PW1/B. No explanation has been placed on the record by the prosecution as to why PW26 ACP Naval Kishore did not prepare the site plan of the place from where the alleged blood stained clothes were recovered vide memo Ext. PW1/B. Such linking evidence is lacking in the prosecution case.

37. The fact that, the recovered clothes (Ext. P5) being blood stained as deposed by PW1 Amardeep @ Vicky, PW16 L/Ct. Kalpana and PW26 ACP Naval Kishore, IO is not corroborated by PW23 SI Mahender Singh.

80 of 100 81 FIR No. 918/07 PS Prashant Vihar PW23 SI Mahender Singh has not uttered a signal word that the polythene bag containing jeans pant, violet coloured embroidered shirt, red and white printed salwar and kameej recovered vide seizure memo Ext. PW1/B were having any blood stains. The said part of testimony of PW23 SI Mahender Singh has knocked out the bottom of the case of the prosecution.

There is substance in the submissions of the Ld. Counsel for the accused that except the disclosure statement of the accused persons, there is no other evidence showing that clothes allegedly recovered were belonging to the accused persons or that the same were worn by them at the time of commission of offence. He has referred to cases titled (1). Parmeshwari Vs. State CRI. CJ 2010 (1) 354 in which Hon'ble Delhi High Court has held that the disclosure statements of both the accused that they were wearing the respective clothes when the crime was committed would be inadmissible and has further held, the prosecution had to establish by independent evidence that the clothes and the articles recovered from accused persons were worn by them when they committed the crime. (2). Bablu @ Bulbul Vs. St. of 81 of 100 82 FIR No. 918/07 PS Prashant Vihar Rajasthan 2002 (1) CCC 228 (Rajasthan High Court) wherein it was held that clothes recovered from the possession of accused found to contain blood of the same blood group as that of deceased - failure to prove that clothes actually belonged to the accused - held, vital circumstances is missing.

38. There is material contradictions as to the place from where the recovery of alleged blood stained clothes of accused (Ext. P5) was made.

PW26 ACP Naval Kishore, IO in his examinationinchief has deposed that "........Pursuant to the disclosure statements both the accused persons led the police party to the Jain Nagar, Kacchi Colony, Kanjhawala Road and in a gali near the wall of a house both accused Suman and Muskan got recovered a polythene underneath the slabs (silli) lying there."

PW23 SI Mahender Singh has deposed in his crossexamination that the recovery of the clothes vide seizure memo Ext. PW1/B was made from a house inside the gali in the southern side. The clothes in a polythene were kept between the big stone and the wall and has further deposed in his 82 of 100 83 FIR No. 918/07 PS Prashant Vihar crossexamination recorded on 18.10.2011 that the house of Manoj who was previous husband of accused Simran was at a distance of about 10 to 12 meters from the spot of the recovery of clothes.

The testimony of PW23 SI Mahender Singh is not corroborated by PW1 Amardeep @ Vicky, who in his examinationinchief has deposed that the recovery of the polythene containing one pant jeans and a shirt and one salwar suit was made underneath the stones lying in the angan of the house of her husband.

It is pertinent to reproduce the relevant part of the examination inchief of PW1 Amardeep @ Vicky, which reads as under: "On 28.12.2007 I alongwith IO and both the accused persons went to Kachi Colony, Jain Nagar. Accused Simran led us to a house stating the same to be of her husband but I am not sure about the same and she got recovered two purse underneath the earth of the aagan (angan) of the said house by digging out the same. One purse contain cash Rs. 29,000/ and the other purse contains one jewellery and the purse containing jewellery had one gent ring which I identified as the one which Dimple used to wear. Both the purse were sealed by the IO in a pulanda with the seal but I do not remember the initials of the same and were seized vide seizure memo Ex PW1/A which bears my signatures at point A. Simran got recovered one 83 of 100 84 FIR No. 918/07 PS Prashant Vihar polythene underneath the stones lying in the aagan (angan). That Polythene contains cloth which were stained with blood. It contains one pant jeans and a shirt and one salwar suit. Simran stated that both of them were wearing these cloths at the time of killing Dimple. Clothes were sealed in a pulanda by the IO with his seal and were seized seizure memo Ext. PW1/B which bears my signatures at PointA".

The said part of the testimony of PW1 Amardeep has knocked out the bottom of the case of the prosecution that the recovery of the alleged clothes of the accused was made in a gali near the wall of a house kept in a polythene underneath the slabs (silli) lying there.

RECOVERIES AT SHAKUR BASTI RANI BAGH:

39. PW1 Amardeep @ Vicky in his examinationinchief has deposed that "From Jain Nagar I alongwith both the accused persons and police officials went to Rani Bagh to the house of sister of accused Simran. Accused went inside the house and brought one panni containing artificial jewellery and the documents of the bank and driving licence of Dimple and some receipts and one mobile phone and other articles. The same were sealed and seized by the IO vide seizure memo Ext. PW1/C which bears my signatures at PointA."

84 of 100 85 FIR No. 918/07 PS Prashant Vihar PW1 Amardeep @ Vicky in his crossexamination recorded on 30.03.2009 has deposed that from Jain Nagar he did not go back to the police station, however, he again went to the police station on 28.12.2007 at about 4.00 PM. Then he remained in the police station for about 11/2 to 2 hours.

PW1 Amardeep @ Vicky in his further crossexamination recorded on 01.04.2009 has deposed that "He alongwith police officials had gone to the house of sister of accused Suman @ Simran at Rani Bagh between 3.00/4.00 PM."

While the testimony of PW1 Amardeep @ Vicky is not corroborated by PW23 SI Mahender Singh who in his crossexamination recorded on 18.10.2011 has specifically deposed that "We all went to (from) Jain Nagar to Rani Bagh, Delhi for the recovery purpose except Amardeep who had dropped at the police station in between."

85 of 100 86 FIR No. 918/07 PS Prashant Vihar The said part of testimony of PW23 SI Mahender Singh, clearly indicates that PW1 Amardeep @ Vicky did not accompany the police party to Rani Bagh where the alleged recovery effected at the instance of accused Suman @ Simran was seized vide seizure memo Ext. PW1/C. The perusal of seizure memo Ext. PW1/C shows the signature of PW1 Amardeep @ Vicky at Point'A'. When as per PW23 SI Mahender Singh, PW1 Amardeep @ Vicky has not accompanied the police party to Rani Bagh, he (PW1 Amardeep @ Vicky) had not witnessed the alleged recovery at Rani Bagh, then how his signature appeared at Point 'A' on seizure memo Ext. PW1/C when and where he (PW1 Amardeep @ Vicky) signed seizure memo Ext. PW1/C. No explanation has been placed by the prosecution in this regard. Failure on the part of the prosecution to place any explanation in this regard gives credence and substance to the plea of accused Suman @ Simran that she is innocent and has been falsely implicated in this case at the instance of PW1 Amardeep @ Vicky, who was a real culprit in collusion with the police officials.

40. PW21 SI Ram Phal during crossexamination on behalf of accused Suman @ Simran recorded on 23.04.2011 has deposed that 86 of 100 87 FIR No. 918/07 PS Prashant Vihar "It is correct that we came to PS directly from the house of Manoj."

From the said narration of PW21 SI Ram Phal another dent is caused in the prosecution case on the aspect of alleged recovery at Rani Bagh, when PW21 SI Ram Phal during his crossexamination has deposed that it is correct that they came to PS directly from the house of Manoj at Kacchi Colony, Jain Nagar, meaning thereby the police party directly came to PS from Kacchi Colony, Jain Nagar and did not go to Rani Bagh from where the alleged recovery was effected vide seizure memo Ext. PW1/C.

41. PW23 SI Mahender Singh in his examinationinchief recorded on 06.06.2011 has deposed that "From their (there) we all went to Shakur Basti Rani Bagh and accused Simran pointed out H.No. C115, of her sister and took us to first floor and recovered a polythene bag containing driving licence of deceased, Canara Bank cheque book, photographs album, artificial jewelery and other articles which I do not remember but mentioned in the memo which were kept in the bag and converted into pulanda and sealed with the seal and taken into possession vide memo Ext. PW1/C."

87 of 100 88 FIR No. 918/07 PS Prashant Vihar PW23 SI Mahender Singh in his crossexamination recorded on 18.10.2011 has deposed that "I have stated to the police that after visiting the house of Manoj we all went to the house of sister of accused Simran and stated about the recovery of articles in my deposition and my statement recorded u/s 161 Cr.P.C. (confronted from statement Ex. PW20/DC where it is not so recorded by the investigating officer)."

From the aforesaid narration of PW23 SI Mahender Singh it is clearly indicated that he has made a material improvement in his testimony while deposing in the Court, which goes to the very root of the matter and does not inspire confidence.

42. Moreover, in the pointing outcumseizure memo Ext. PW1/C the address is missing. It is mentioned as "H.No. C Shakur Basti Rani Bagh Delhi". Then, which address was pointed out by accused Suman vide pointing outcumseizure memo Ext. PW1/C and from which address the recovery was made.

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43. Further as per PW1 Amardeep @ Vicky, PW23 SI Mahender Singh, PW26 ACP Naval Kishore, IO, all the articles recovered from Rani Bagh were duly sealed while perusal of seizure memo Ext. PW1/C shows that it is totally silent that all the articles were duly sealed at the time of recovery.

No explanation has been placed by the prosecution in this regard. It creates doubt and suspicion of the recovery of articles (colly Ext. P4) allegedly made from Rani Bagh at the instance of accused Suman @ Simran and does not rule out false implication and plantation.

44. Even otherwise, as far as the alleged recovery of a polythene bag containing driving licence of deceased, Canara Bank cheque book, photographs album, artificial jewellery and other articles (colly Ext. P4) made at the pointing out of accused Suman @ Simran from H.No. C115, Shakur Basti, Rani Bagh, vide seizure memo Ext. PW1/C is concerned, there was nothing abnormal and unusual about it.

These were the personal items of accused Suman and that of Dimple Rana (since deceased). Undisputably, accused Suman was living 89 of 100 90 FIR No. 918/07 PS Prashant Vihar with Dimple Rana (since deceased) in a rented accommodation at H.No. G1/60, Sector15, Rohini, Delhi. Moreover, PW2 Narender Rana, brother of deceased during his crossexamination has deposed that it is correct that deceased confirmed that Suman was his wife.

Analysing the said recovery (colly Ext. P4) in the light of the testimony of PW2 Narender Rana, accused Suman being the wife of deceased Dimple Rana, was the best person to have the custody of the jewellery articles and the documents of her husband (since deceased).

In the circumstances, prosecution has failed to link up the alleged recovery (colly Ext. P4) vide seizure memo Ext. PW1/C with the alleged offence.

45. Since the recovery evidence inclusive of the recovery of the blood stained clothes (Ext. P1) is not found to be credible, in the circumstances, the FSL report No. 2008/B/794/4950 dated 14.08.2008 placed on record though not formally tendered in evidence also becomes suspicious.

90 of 100 91 FIR No. 918/07 PS Prashant Vihar SEAL TO WHOM HANDED OVER AFTER USE:

46. PW21 Retired SI Ram Phal, PW23 SI Mahender Singh, PW24 Retired SI Rajender Singh and PW26 ACP Naval Kishore have deposed that pullanda were sealed with the seal of 'NK'. But their testimonies are totally silent as to whom the seal of 'NK' was handed over after use.

During crossexamination PW26 ACP Naval Kishore has deposed that "Q. Is it in your knowledge that the seal of NK after use on 26.12.2007 was deposited with the MHC(M)?

Ans. I do not recollect. Vol. seal was with SI Mahender Singh he knows better".

From above, it is clearly indicated that as per PW26 ACP Naval Kishore on 26.12.2007, seal of 'NK' after use remained with SI Mahender Singh (PW23).

91 of 100 92 FIR No. 918/07 PS Prashant Vihar It means seal remained with PW23 SI Mahender Singh, after use on 26.12.2007. Since the testimony of PW23 SI Mahender Singh is totally silent as to whether seal of 'NK' after use was deposited with MHC(M) or handed over to some one else. In the circumstances, in view of the cross examination of PW26 ACP Naval Kishore, it can be taken that seal of 'NK' remained with PW23 SI Mahender Singh.

However, PW23 SI Mahender Singh in his crossexamination has deposed that "It is wrong to suggest that seal was not handed over to Amardeep after use because he was not at all present at that time."

It means seal of 'NK' after use was handed over to Amardeep (PW1) after use.

But the testimony of PW1 Amardeep @ Vicky is totally silent on this aspect that seal after use was handed over to him. Even if for arguments sake it is taken that seal of NK after use was handed over to PW1 Amardeep @ Vicky, as to whether any seal handing over memo was prepared. As to 92 of 100 93 FIR No. 918/07 PS Prashant Vihar when he (PW1 Amardeep @ Vicky) returned the seal, to whom he returned the seal, as to whether any seal returning memo was prepared.

Further the testimony of PW12 HC Banwari Lal, MHC(M) is totally silent that any seal of 'NK' was ever deposited with him either by PW23 SI Mahender Singh or by PW1 Amardeep @ Vicky. Such linking evidence is lacking in the prosecution case.

No plausible explanation has been placed by the prosecution in this regard. It creates doubt and suspicion in the prosecution case and does not rule out false implication and plantation.

MOTIVE FOR CRIME:

47. In case State of UP Vs. Babu Ram, 2000 III AD (SC) 319, the Hon'ble Supreme Court has observed as under: "Motive is a relevant factor in all criminal cases whether based on the testimony of eye witnesses or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the

93 of 100 94 FIR No. 918/07 PS Prashant Vihar prosecution to any perceptible limit. No doubt, if the prosecution prove the existence of a motive it would be well and good for it, particularly, in a case depending on circumstantial evidence, for such motive could than be counted as one of the circumstances. However, it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent."

48. PW26 ACP Naval Kishore in his examinationinchief has deposed "During the course of investigation it was revealed that both the accused persons were involved in sex racket with deceased who was working as a pimp. Accused persons also revealed that they were not been sufficiently paid by the pimp which he was getting from the customers and in view of due payment and their demand repeatedly from the deceased who was not paying them their due share as a result both the accused were annoyed from the deceased and committed murder of the Dimple Rana".

PW1 Amardeep @ Vicky in his examinationinchief has deposed that on visit to house of Dimple (since deceased) he had seen both accused (accused Suman @ Simran and accused Muskan @ Ruby) quarreling and demanding money from Dimple saying that Dimple was enjoying life on their money and his refusal to give money to them and of the threatening of both the accused to see him (Dimple) and of dire 94 of 100 95 FIR No. 918/07 PS Prashant Vihar consequences.

It is pertinent to reproduce the relevant part of the examination inchief of PW1 Amardeep @ Vicky which reads as under:

"I used to visit the house of Dimple once or twice in a month. Whenever I visited the house of Dimple I found both the accused quarreling with Dimple over the money matters. Both the accused used to demand money from Dimple and Dimple refused to give the same. Both the accused threatened Dimple to see him. 67 days prior to 25.12.2007 I visited the house of Dimple, at that time he was under the influence of liquor and both the accused persons were quarrelling with him. Both the accused were saying to him that Dimple was enjoying life on their money and demanded money but Dimple refused for giving money to them. At this accused persons threatened Dimple with dire consequences. I pacified the matter and returned back."

During his crossexamination PW1 Amardeep @ Vicky has deposed that "I had seen both the accused persons quarreling with the deceased only once or twice during my visit."

95 of 100 96 FIR No. 918/07 PS Prashant Vihar PW2 Narinder Rana in his examinationinchief deposed that third time when he alongwith his father Krishan Lal (PW3) visited the house of Dimple about 23 days prior to his murder, at that time Suman and Dimple (since deceased) had a quarrel over money matter and Suman had threatened Dimple that she would see him and with dire consequences.

It is pertinent to reproduce the relevant part of examinationin chief of PW2 Narinder Rana, which reads as under: "Third time when we visited the house of Dimple about 23 days prior to his murder we met Dimple at his house. We made him to understand not to involve himself in wrong activities and asked him to return back to house but he refused. At that time Suman and Dimple had a quarrel over the money matter. And Suman threatened Dimple that she would see him and with dire consequences."

During crossexamination PW2 Narinder Rana has deposed that "It is correct that accused Suman stated that she was the wife of deceased. It is correct that I asked the deceased to confirm the factum that accused Simran was his wife on his mobile phone at that time. Again said I did not contact him on mobile regarding this fact. He told me that he was 96 of 100 97 FIR No. 918/07 PS Prashant Vihar coming. It is correct that the deceased confirmed that Suman accused was his wife. It is correct that I was angry with my brother that he had married with accused Suman with (without) informing me."

"It is correct that I had never seen accused Suman or accused Muskan involved in flesh trade or doing any illegal activity."

PW3 Krishan Lal in his examinationinchief has deposed that "Once I visited the house of Dimple and met him in the house, at that time both the accused persons were quarrelling with Dimple over money matter and also threatened him with dire consequences."

During his crossexamination PW3 Krishan Lal has deposed that "It is correct that Vicky told me that accused Suman @ Simran and Muskan do not have good character."

His testimony is not corroborated by PW1 Amardeep @ Vicky who in his entire lengthy testimony has not uttered a single word that accused Suman @ Simran and accused Muskan did not have good character and this fact was told by him to PW3 Krishan Lal, father of the deceased.

97 of 100 98 FIR No. 918/07 PS Prashant Vihar There is no evidence on the record to indicate that both accused Suman @ Simran and accused Muskan were involved in sex racket with deceased who was working as a pimp.

Moreover, from the testimony of PW2 Narinder Rana as discussed hereinabove it stands established that the deceased confirmed that accused Suman was his wife.

In view of above, as far as the motive for committal of crime; of both the accused persons being involved in sex racket with deceased, who was working as a pimp and they were not sufficiently paid by the pimp, as to what he was getting from customers, is concerned does not stand established from the material on the record.

In the circumstances, prosecution has failed to prove the motive for the committal of the crime in the present case.

49. From evidence existing on record prosecution has miserably failed to prove cogently and firmly all the circumstantial components, 98 of 100 99 FIR No. 918/07 PS Prashant Vihar elements and links which may point towards the guilt of the accused, that PW1 Amardeep @ Vicky is a reliable witness and is not a 'suspect' and is a witness to the utterance/disclosure of accused persons 'aaj hamne uska kam kar diya he' on 25.12.2007 at about 9.30 PM; that recovery of purse containing jewellery articles, gents ring, purse containing cash (Ext. P1, P2 & P3 collectively) vide seizure memo Ext. PW1/A and blood stained clothes of accused (Ext. P5) vide seizure memo Ext. PW1/B was effected at the instance of accused Suman @ Simran (and accused Muskan @ Ruby being juvenile her case has been separated) from Kacchi Colony, Jain Nagar; that recovery of articles (Ext. P4 collectively) was effected at the instance of accused Suman @ Simran vide seizure memo Ext. PW1/C from Shakur Basti, Rani Bagh; that as per FSL report Ext. PW25/A, pistol 7.65mm caliber marked Ext. F1 (also Ext. P7), is the 'weapon of offence'; that the seal of 'NK' remained in proper and safe custody; that the disclosure statement dated 27.12.2007 of accused Suman @ Simran Ext. PW23/H, her supplementary disclosure statement dated 28.12.2007 Ext. PW1/D (and that of accused Muskan @ Ruby Ext. PW23/J and Ext. PW1/E, her case has been separated being a juvenile) were recorded in a fair manner and that accused Suman @ Simran (case of accused Muskan @ Ruby being a juvenile has been separated) had a motive for the committal of crime.

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50. In view of above discussion, I am of the considered opinion as far as the involvement of accused Suman @ Simran (case of accused Muskan @ Ruby being a juvenile has been separated), in the commission of the offences u/s 302/34 IPC and u/s 27/54/59 Arms Act, 1959 is concerned, the same has not been sufficiently established by the cogent and reliable evidence and in the ultimate analysis the prosecution has miserably failed to bring the guilt home to the accused Suman @ Simran beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Suman @ Simran. I, therefore, acquit accused Suman @ Simran for the offences u/s 302/34 IPC and u/s 27/54/59 Arms Act, 1959 after giving her the benefit of doubt. Accused Suman @ Simran is running in JC. She be released forthwith, if not wanted in any other case. However, on her release accused Suman @ Simran shall appear in the court and shall execute a bailbond in the sum of Rs. 20,000/ under section 437A Cr.P.C. Announced in the open Court today on 22nd Day of month of August, 2012 (MAHESH CHANDER GUPTA) Addl. Sessions Judge- IV/Outer District Rohini/Delhi.

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State vs . 1). Suman @ Simran on 22 August, 2012