Delhi District Court
Supreme Court In State Of U.P. vs . Satish, Air 2005 Supreme on 15 September, 2010
1
IN THE COURT OF SH. GURDEEP SINGH
ADDL. SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS, DELHI.
FIR No. : 70/2007
PS : New Usmanpur
U/s : 302 IPC
Unique Case ID : 02402R0 422432007
In the matter of
The State
Versus
Vicky S/o Sh. Komal Prasad
R/o T395, Gali No.24
Gautam Puri, Delhi.
....ACCUSED
Session Case No. : 110/08
Date of Institution : 31.05.2007
Date of Committal : 06.06.2007
Date of reserving order/judgment : 15.09.2010
Date of pronouncement or order/judgment : 15.09.2010
J U D G E M E N T
1. Accused Vicky was sent up by police of police station New Usmanpur to stand trial u/s 302 IPC on the allegation that on 23.2.2007 DD No. 3 A was recorded at the police station that at about 9:25 am HC Vishamber had given information to the police st station by way of telephone that below Machli Bazar 1 Pushta Yamuna Khadar Jungle one dead body of male is lying and on this FIR No. : 70/2007, PS: New Usmanpur Page 1 of 29 2 information SI Dalchand alongwith Ct. Khubiram reached near st nd water pipe line in between 1 and 2 Pustha, New Usmanpur. The dead body was identified by Dinesh, brother of the deceased. On the basis of endorsement, the FIR was registered u/s 302 IPC. The brother of deceased disclosed that on 22.02.2007 at about 9:00 am he (deceased) had left house in search of work at Gandhi Nagar and thereafter he did not return in the night. On 23.02.2007, the brotherinlaw of Preetam @ Sonu deceased had told that at about rd 7:00 pm, he had seen him alongwith accused Vicky at 3 Pushta, Jagjit Nagar Usmanpur outside Salim Hotel and both were drunk. On 26.02.2007 during the investigation IO came to know from the waiter of Salim Hotel that on 22.02.2007 three boys were quarreling while eating, one boy was belonging to Jagjit Nagar whose name they were taking as Bhupinder and Bhupinder was son of aunt (bua) of Vicky. On inquiry from Bhupinder it was disclosed that accused Vicky had called him at 5:30 pm from his mobile rd number at 3 Pushta Usmanpur where Vicky and his friend Sonu were present. They drank liquor. Sonu removed mobile make Nokia 93 from the pocket of Bhupinder. Since he was in intoxication he fell unconscious and he was admitted in the hospital. The MLC was obtained. The call details of the mobile phone was taken. He had spoken to Vicky on his mobile phone for FIR No. : 70/2007, PS: New Usmanpur Page 2 of 29 3 about 65 seconds. On 3.3.2007 accused Vicky was apprehended near water tank Gautampuri at about 10:15 pm and he was found in possession of one mobile phone make Nokia 93 and wrist watch of Sonu make Jyoti and Rs.810 was also recovered, which were seized and later on blood stained jeans pant and jacket were also recovered in pursuance to his disclosure statement. After completion of the investigation the accused was chargesheeted.
2. After supplying the necessary copies, the case was committed to court of session by Ld. MM vide order dated 6.6.2007.
3. My Ld. Predecessor, after finding primafacie offence charged the accused u/s 302 IPC vide order dated 10.10.2007, to which they pleaded not guilty and claimed trial.
4. Prosecution in support of their case examined as many as 27 witnesses. There are no witnesses as PW14, PW15, PW16 and PW28 and it appears that these serial numbers of witnesses were left out inadvertently.
The prosecution examined following material witnesses :
PW2 Sh. Ashiq Ali who was working in the hotel of Saleem had FIR No. : 70/2007, PS: New Usmanpur Page 3 of 29 4 completely turned hostile and did not support prosecution despite crossexamination at length.
PW3 Sh. Bhupinder Kumar also turned hostile towards prosecution but his crossexamination was on behalf of accused was not recorded inadvertently and was left out in evidence. Ld. Counsel on behalf of accused submitted during the course of arguments and made statement on 15.09.2010 that opportunity to cross was given to him but he chosen not to cross the witness as he turned hostile and opportunity to cross this witness be treated as closed. PW5 Sh. Lalit is the brother of Bhupinder, who got him admitted in the hospital in injured condition.
PW6 Sh. Somvir, is material witness of last seen, arrest of accused and is also the witness of recoveries effected at the instance of accused. He proved the seizure memo of mobile and wrist watch as Ex.PW6/A, disclosure statement as Ex.PW6/B, arrest memo as Ex.PW6/C, personal search memo as Ex.PW6/D and pointing out memo as Ex.PW6/E. He also identified the wrist watch as Ex.PW 6/Article1, mobile phone make Nokia 93 as Ex.PW6/Article2, cash Rs.810/ as Ex.PW6/Article3 collectively and ID card as Ex.PW6/Article4.
The prosecution examined following formal witness : FIR No. : 70/2007, PS: New Usmanpur Page 4 of 29
5 PW1 Sh. Dinesh, brother of deceased is the witness who identified the dead body and received it after postmortem and proved receipt as Ex.PW1/A and his statement as Ex.PW1/B. PW4 W ASI Suman Rana is the duty officer who recorded DD No. 3A at the police station regarding the information of lying dead body of unknown male and proved it as Ex.PW4/A. She had also recorded formal FIR on the basis of rukka and proved it as Ex.PW 4/B and made her endorsement on rukka as Ex.PW4/C. PW7 HC Netrapal is the witness who had delivered the copy of FIR to the senior officers.
PW8 SI Mukesh Jain is the witness who prepared the scaled site plan of the spot where the dead body was lying and proved the same as Ex.PW8/A. PW9 SI Sarif Ahmed is the witness who brought the subsequent opinion from the Dr. Anil Kumar alongwith exhibits regarding weapons of offence.
PW10 SI E. S. Yadav was the incharge Mobile Crime Team who reached at the spot and prepared site inspection report as Ex.PW 10/A. PW11 Dr. Anil Kohli is the witness who conducted the postmortem on the dead body and found as many as 7 antemortem injuries on the person of deceased and opined the time since death was about FIR No. : 70/2007, PS: New Usmanpur Page 5 of 29 6 one and half days and the cause of death was shock due to antemortem head injuries and injury No. 4, 5 and 6 were each independently sufficient to cause death in the ordinary course of nature and also collectively with the other injuries and injury no. 4 and 6 were caused by blunt forced impact and injury no. 5 was caused by heavy cutting weapon and proved postmortem report as Ex.PW11/A and also proved his subsequent report as Ex.PW11/B wherein he opined after seeing the stone weighing about 8.5 kg that the injury no. 1 to 6 are possible with the stone. PW12 Ct. Mahavir is the witness who took photographs of the dead body at the spot and proved the photographs as Ex.PW12/A1 to PW12/A6 and its negative as Ex.PW12/A7 to Ex.PW12/A12. PW13 Dr. Banarasi is the witness who medically examined the patient Bhupinder Kumar vide MLC Ex.PW13/A and gave statement that the patient was unfit for statement and there was smell of alcohol in the breath of the patient. PW17 ASI Ram Kishore is the witness who deposited the exhibits after receiving it from MHC(M) at CFSL Kolkata vide RC No. 49/21/2007.
PW18 Ct. Devendra is the witness who alongwith HC Bishamber seen the dead body and from whose mobile the information was sent.
FIR No. : 70/2007, PS: New Usmanpur Page 6 of 29
7 PW19 Ct. Pradeep is the witness who on receipt of information alongwith SHO K. L. Sharma and Inspector M. A. Khan reached at the spot and found dead body of a male young person, where SI Dal Chand met them and he brought the rukka to the police station and got the FIR registered.
PW20 Ct. Satish is the witness who brought the accused to GTB Hospital for his medical examination and thereafter handed over one test tube sample blood duly sealed and sample seal of GTB Hospital and proved the seizure of the same by IO as Ex.PW20/A. PW21 ASI Vishamber is the witness who alongwith PW18 had seen the dead body and informed the police station. PW24 SI Ishwar Chand is the witness who on the receipt DD No. 48 B regarding the admission of injured Bhupender in the hospital reached at the hospital and obtained MLC. The injured was unfit for statement hence kept the same for investigation. He proved the seizure of the MLC by IO as Ex.PW24/A. PW25 Ct. Khubi Ram is the witness who reached alongwith SI Dal Chand at the spot on the receipt of the information of dead body and thereafter taken the dead body to the hospital and got the postmortem done and thereafter handed over viscera peti and parcel containing clothes of the deceased, blood gauge and sample seal of 'AK' to IO and proved the seizure of the same as Ex.PW25/A. FIR No. : 70/2007, PS: New Usmanpur Page 7 of 29 8 PW29 Sh. A. S. Datta, Jr. Scientific Officer, examined viscera of the deceased vide report Ex.PW26/J and opined that no common poison including ethyl alcohol could be detected in the contents of each exhibits.
PW30 Sh. Akhlesh Kumar, Jr. Scientific Officer who had conducted the forensic examination of the earth vide report Ex.PW 26/H and opined that exhibits mark 4 and 5 were found to be similar to each other.
PW31 HC Jasbir Singh is the MHC(M) with whom the case properties were deposited. He also sent the exhibits to CFSL and received the CFSL Result. He proved the extract of the entries as Ex.PW31/A and copy of RC as Ex.PW31/B. The prosecution also examined following witnesses of investigation :
PW22 HC K. P. Singh is the witness of recovery of jeans pant and jacket (PW22/Article1) at the instance of accused and proved the seizure of the same as Ex.PW22/A. PW23 Ct. Subhash is also witness of recovery of jeans pant and jacket at the instance of accused and proved the seizure of same as Ex.PW22/A (It is wrongly recorded as PW23/A.) PW26 Inspector M. A. Khan, is the investigating officer. He in FIR No. : 70/2007, PS: New Usmanpur Page 8 of 29 9 addition to other memos proved the site plan Ex.PW26/A, seizure of blood sample with the help of gauge, blood stained earth and control earth and blood stained stone vide memo as Ex.PW26/B, seizure of articles recovered from personal search of deceased vide memo Ex.PW26/C, inquest papers for conducting postmortem as Ex.PW26/D collectively, statement of Pyare Lal as Ex.PW26/E regarding identification of dead body, seizure of worn clothes, shoes and socks of the accused vide memo Ex.PW26/F, his request for subsequent opinion regarding weapon of offence i.e. stone as Ex.PW26/G. PW27 Retd. SI Dal Chand is the witness who joined the investigation with IO and the witness of reaching at the spot and seizure of articles at the spot where the dead body was found and arrest of the accused, pointing out by accused and recoveries from the accused.
5. Statements of accused was recorded U/s 313 Cr.PC. He denied the prosecution evidence and claimed innocence. He stated that he had surrendered himself to the police and nothing was recovered from his possession. On the day of occurrence, he had gone to Aligarh for bringing 'karigar' for his jeans factory. Police had already taken his father in their custody and he went himself to the police station FIR No. : 70/2007, PS: New Usmanpur Page 9 of 29 10 as his father was in police custody, thereafter, he was implicated in this case. Police officials had taken his clothes into possession.
From his house, they also called for some clothes and his identity card and falsely planted the same on him. He has been falsely implicated in this case. He also examined two witnesses ie DW1 Sh. Lakhpat Singh, the karigar and DW2 Sh. Komal Prasad, his father, in his defence.
6. I have heard Sh. Virender Singh, Ld. Addl. PP for the state and Sh.
J. P. Sharma, Advocate, for accused. I have also gone through the record.
7. This case is based on circumstantial evidence as there is no ocular witness and the law on the subject is well settled by Hon'ble Supreme Court in State of U.P. Vs. Satish, AIR 2005 Supreme Court 1000. Observed with approval the law laid down in Padala Veera Reddy Vs. State of A. P. (AIR 1990 SC 79) it was held by Hon'ble Supreme Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
ii) those circumstances should be of a definite tendency FIR No. : 70/2007, PS: New Usmanpur Page 10 of 29 11 unerringly pointing towards guilt of the accused;
iii) the circumstance, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
The accused can be convicted on the basis of circumstantial evidence, if the chain of circumstance is complete.
8. There are three sets of witnesses examined by the prosecution. One is with respect to the place where the dead body was lying, other set of witnesses is witness of last seen and third set of witnesses are witness of arrest and recoveries effected at the instance of accused.
9. PW18 Ct. Devendra and PW21 HC Bishamber are the witnesses, who had seen the dead body for the first time. PW18 testified that on 22.2.2007 he was present on night duty. He alongwith HC Bishamber were on patrolling duty on a motorcycle and at about st 9:25 am on 23.2.2007 they reached near Khadar in between 1 and FIR No. : 70/2007, PS: New Usmanpur Page 11 of 29 12 nd 2 Pushta where they saw the dead body of a male person was lying. HC Bishamber informed the DO in PS New Usmanpur from his mobile phone. PW21 ASI Vishamber similarly corroborated PW18.
10. PW27 Retd. SI Dal Chand is the witness who on the receipt of DD regarding lying of dead body reached at the spot alongwith PW25 Ct. Khubi Ram. He testified that on 23.02.2007, he on the receipt of DD No. 3A alongwith Ct. Khubi Ram reached at the spot at in st nd between 1 and 2 Pushta, New Usmanpur, Yamuna Khadar, Delhi. Inspector M. A. Khan alongwith SHO and other staff also reached there, where, they found that the dead body of a young boy aged about 20 years was lying. The blood was also lying near the dead body and one big stone was also found lying on the face and head of the dead body. Crime team was also called and reached and they inspected the spot and took the photographs. One Dinesh had also come (sic) forward and identified the dead body as that of his younger brother namely Pritam @ Sonu. PW26 Inspector M. A. Khan similarly corroborated this witness. PW25 Ct. Khubi Ram also similarly corroborated other witnesses regarding seeing of st nd dead body in between 1 and 2 Pushta Yamuna Khadar. PW8 SI Mukesh Jain is the witness who prepared scaled site plan of the FIR No. : 70/2007, PS: New Usmanpur Page 12 of 29 13 st spot ie. Yamuna Khadar, 1 Pushta, New Usmanpur. PW10 SI E. S. Yadav, incharge, mobile crime team claims that they have reached at first Pushta, New Usmanpur, pump line, Yamuna Khadar side and seen the dead body. But he states that the dead body was seen having injury in the head and one blood stained stone was lying near the dead body. PW12 Ct. Mahavir Singh, photographer, crime team, also stated that the dead body was lying st nd at Yamuna Khadar in between 1 and 2 pushta, New Usmanpur near water pipe line. Therefore there are some confusion regarding st place where the dead body was found. Whether it was between 1 nd st and 2 Pushta or 1 Pushta and whether when the dead body was first seen it was covered with stone on his face. As per the photographs, two photographs shows that the face was covered with stone and others are different. It appears that the photographs were taken later on by changing the place of the dead body. Apart from PW8 SI Mukesh Jain and PW10 SI ES Yadav, others are consistent that it was between first and second pushta. As regards the witnesses who had seen the dead body for the first time, they did not see any stone and had not sent the information regarding stone lying on the dead body. However, PW27 Retd. SI Dal Chand deposed that the stone was lying on the dead body. Similarly PW 26 Inspector M. A. Khan stated that the stone was lying on the face. FIR No. : 70/2007, PS: New Usmanpur Page 13 of 29
14 PW25 Ct. Khubi Ram claims that the face of the dead body was covered with stone. Therefore there is also little controversy whether the stone was lying on the dead body when it was seen for the first time. Be that as it may.
11. Now coming to the other witnesses. PW1 Dinesh is the brother of the deceased has merely stated that he had identified the dead body of his brother. He has not stated the time as to when and for what purposes his deceased brother had left the house. PW2 Sh. Ashiq Ali testifed that he was working in the hotel (Dhaba of Saleem) at rd New Usmanpur at 3 Pushta. He categorically stated that he cannot identify the accused as so many persons eat food at the hotel, therefore he cannot say as to who came and on which date. He was crossexamined by the prosecutor but no material has come from his testimony. PW3 Sh. Bhupinder Kumar testified that accused Vicky is son of his mama. He does not know any person by name of Pritam @ Sonu. On 22.2.2007, he took drinks at his factory with his friends Mithun and Mahesh. He fell unconscious after drinks and was taken to the hospital. He was not having any mobile phone at that time. Police did not record his statement. He stated when he was unconscious his brother told that police had come and recorded his (witness) statement at hospital but he (witness) does not knows FIR No. : 70/2007, PS: New Usmanpur Page 14 of 29 15 as to what he (witness) has stated as he (witness) was unconscious due to drinks. He was also crossexamined at length by the prosecutor but nothing material has come on record against the accused. He stated that he was coming from factory to home when he fell and become unconscious and somebody got him admitted in the GTB Hospital. PW5 Sh. Lalit is the brother of Bhupinder, who nd got him admitted in the hospital. He testified that on 22 day of might be March, 2007, he was present in his factory at Gali No.10, rd 3 Pushta, Usmanpur, Delhi at about 6:30 pm came to him and informed that his brother namely Bhupinder is lying in unconscious condition in street No. 10. He reached there and found his brother lying in unconscious condition. He took him to the house and thereafter he took him to the Mohan Nursing Home at Brahmpuri, but they refused to entertain him and directed to take him to GTB Hospital. Thereafter he took his brother to the said hospital and got rd admitted. On the 3 day his brother was discharged from the said hospital after treatment. He stated in his crossexamination that he does not remember whether he had taken to his brother firstly to his house and thereafter Mohan Nursing Home and confronted with the statement, wherein it is not so recorded.
12. From the testimonies of PW3 Sh. Bhupinder and PW5 Sh. Lalit, FIR No. : 70/2007, PS: New Usmanpur Page 15 of 29 16 the prosecution could not establish that Bhupinder was with accused Vicky and deceased in the night as PW5 himself claims that he had taken his brother at 6:30 pm to the hospital.
13. Now we are left with the only important witness i.e. PW6 Somvir.
He testified that on 22.2.2007, he was coming to his inlaws' house at Gali No.10, Brahmpuri, Delhi. At about 7:00 pm while he was rd crossing from Salim Hotel 3 Pushta, he saw Sonu who was his brotherinlaw standing alongwith the accused Vicky. He inquired from Sonu as to how he is standing there. He told him that he had come for some work with his friend Vicky and asked him to go to the house and told him that he will follow soon. Both boys were heavily drunk at that time. He went to his inlaws' house. Sonu did not return to the house for quite some time, thereafter they started searching for him. On the next morning, some known person of Sonu's family gave telephonic call at his house that his dead body is lying between first and second pushta. He alongwith his elder brotherinlaw namely Dinesh went to the said place and Dinesh identified the dead body of Sonu. Dinesh told him that the wrist watch of the Sonu was missing from his hand. Police was already present at the spot before they reached at the spot. From the spot, police brought the dead body of the Sonu to the police station and FIR No. : 70/2007, PS: New Usmanpur Page 16 of 29 17 they also went to the police station. Police recorded his statement. In his crossexamination he denied the suggestion that he had not given the name of the Vicky in his statement to the police. He saw the accused Vicky for the first time when he was standing with Sonu near Salim Hotel. He also denied the suggestion that he had not stated in his statement u/s 161 Cr.PC that Dinesh told him that the wrist watch of Sonu is missing from his dead body and was confronted with the statement Ex.PW6/DA wherein it is mentioned that he saw that the wrist watch of the Sonu was missing. He was also confronted with the statement Ex.PW6/DA that the dead body was taken from the spot to the police station, wherein it is not so recorded. He does not know the telephone number (of the person) who had given the information regarding the lying of the dead body of Sonu. He was called to Shastri Park Hospital through one known person of Dinesh. Firstly this witness claims that he alongwith brother of the deceased had gone to the spot when they received the information regarding lying of dead body but claims that brother of the deceased had told him that the wrist watch of Sonu was missing from his hand whereas as per the witnesses of prosecution only Dinesh had come forward and identified the dead body. This witness was not present there. Had he been the witness of last seen he would have told to the police FIR No. : 70/2007, PS: New Usmanpur Page 17 of 29 18 right at the spot that he had seen deceased Sonu @ Preetam his brotherinlaw alongwith the accused Vicky. Yet even if his testimony is believed that he had seen the deceased alongwith rd accused Vicky at Salim Hotel, 3 Pustha, the dead body was found st nd in between 1 and 2 Pushta, which is according to the counsel of accused about 3 km away from the spot. Further this witness had seen deceased alongwith Vicky at about 7:00 pm whereas the dead body was found at about 9:25 am on the next morning ie after about 14 hours. Therefore it cannot be established that there was proximity between last seen and the murder and, the place of last seen and the place where the dead body was found. Therefore the evidence of this witness cannot be relied upon for the purpose of last seen evidence.
14. Now coming to the evidence of recoveries effected at the instance of accused. PW26 Inspector M. A. Khan testified that on 3.3.07, at about 10:15 pm, he alongwith SI Dalchand (PW27) were present near Shastri Park Hospital, where Sombir ie jija of deceased Pritam @ Sonu met them. The secret informer also met him there and informed him that accused Vicky is involved in this case and is present near water tank, Gautam Puri. On this information, he immediately alongwith SI Dal Chand and Sombir reached there. FIR No. : 70/2007, PS: New Usmanpur Page 18 of 29
19 They apprehended the accused Vicky, at the instance of Sombir who had seen him last time with the deceased. He (accused) was interrogated and he made his disclosure statement and confessed the commission of murder of deceased Pritam @ Sonu. His disclosure statement was recorded and was arrested. From the personal search of accused, one identity card of National Institute of Open Schooling, Session April2004 was recovered. Accused Vicky also produced one mobile phone make Nokia having model No. N93 which was lying in the pocket of his worn pant having IMEI No. 358842001078974 without sim card and one wrist watch make Jyoti having golden dial with strap. He further stated that the accused had also disclosed that he (sic) had removed the mobile phone and wrist watch from the possession of the deceased. He (accused) also produced Rs.810/ and he disclosed that the same is the balance amount of Rs.2700/ which was taken by him from the possession of the deceased. The same were seized. On 4.3.2007, the accused pointed out the place of occurrence. He further stated that on 5.3.2007, during police custody, the accused led them to Aligarh and from the bushes near Mata Mandir, Ram Bagh Colony, GT Road Aligarh, he pointed out the place and took out one jeans pant and jacket having some blood stains. He seized the same through seizure memo Ex.PW22/A and also seized the worn clothes, shoes FIR No. : 70/2007, PS: New Usmanpur Page 19 of 29 20 and shocks of accused Vicky through seizure memo Ex.PW26/F.
15. PW27 Retd. SI Dal Chand corroborated regarding secret information, meeting of Somvir at the hospital, disclosure statement of accused and recoveries effected from the person of the accused and pointing out. PW6 Somvir testified that the dead body of the deceased Sonu was brought to the police station and they also went to the police station where his statement was recorded. On the same night police called him at Shastri Park Hospital and from there he accompanied him to Gautam Puri in search of the accused. The accused Vicky was standing near a water tank, he was apprehended by police from there. He identified him before the police as the same person who was with Sonu on the last night. Police made inquiries from him. The police conducted his search and one mobile phone make Nokia N 93 and Rs. 810/ were recovered from his possession. The accused also disclosed that he had removed Rs. 2700/ from the pocket of the deceased Sonu out of which now only Rs.810/ is left with him. The wrist watch of the deceased Sonu was worn by accused in his hand. The same was also seized by the police. The wrist watch was having dial of Jyoti, and was of golden colour with patta. All were seized by the police officials. The recovered items were kept in a sealed parcel by police and was FIR No. : 70/2007, PS: New Usmanpur Page 20 of 29 21 sealed and his signatures were obtained. One Icard was also recovered from the pocket of the accused belonging to him on which Vicky was written. Further, a leading question was put to the witness by the prosecutor on which he admitted that he alongwith the police had gone for the arrest of the accused in the intervening night of 3/4.3.2007. However, his earlier narration shows that he had gone to the Shastri Park on the same day. In his cross examination he stated that he does not know the telephone number (of the person) who had given the information regarding the lying of the dead body of Sonu. He was called to Shastri Park Hospital through one known person of Dinesh, who happened to be at the police station on that day. He was called Binnu. He is working in Jodhpur and also lives there. He does not know the complete address of Binnu of Jodhpur. He met him at the mourning of murder of Sonu. He is relative of deceased Sonu. It is also surprising that he was called at the Shastri Park Hospital through one person known to Dinesh who was present in the police station on that day but the police claims that the Somvir was incidently present at the Shastri Park Hospital when they received secret information. Further he is the brotherinlaw of the deceased but does not know as to who had given the information. From his earlier statement it clearly appears that he was subsequently FIR No. : 70/2007, PS: New Usmanpur Page 21 of 29 22 introduced. In further crossexamination he stated that it was dark near water tank, Gautampuri and there was one wall nearby. He does not know whether the area was surrounded by residential houses. He admitted that police had apprehended and brought before him where he identified him. He was standing about 20/25 steps from the place where he was apprehended. His (accused) search was conducted there itself. Police did not record his statement at Gautampuri nor his signature was obtained. Police recorded his statement after they came to the police station with accused Vicky. Police probably recorded his statement twothree times in the police station. He denied the suggestion that he did not go to the spot nor any proceedings conducted at the spot.
16. On the other hand PW26 Inspector M. A. Khan stated in his cross examination that accused Vicky was arrested at 11:00/11:15 pm. He accompanied by SI Dal Chand, Ct. Naresh, Ct. Satish, brotherin law of deceased namely Somvir and secret informer. The secret informer pointed out towards the accused from a distance of 20/25 steps away. The writing work was done under the street light at the place of arrest of accused. The electric poll was at a distance of about 10 fts. from the place of arrest of accused. There was light. He had recorded statement of Somvir there only, which is FIR No. : 70/2007, PS: New Usmanpur Page 22 of 29 23 contradicted by PW Somvir.
17. PW27 Retd. SI Dal Chand in his crossexamination stated that Somvir came in the hospital at his own at Shastri Park and admitted that he did not inform Somvir to come and he does not know whether the IO had informed him to come. The distance between the Shastri Park MCD Hospital and the Water Tank is about half km. There is residential area near the water tank at a distance of about 300/400 yards. Few people were coming and going from there. IO did not serve any notice to public person who refused to join the investigation. IO did not note down their name and addresses also. The secret informer was at a distance of about 8/10 fts from the accused Vicky, when he was apprehended. The secret informer had informed the police party about the accused Vicky. IO had prepared first of all disclosure statement of accused Vicky. They remained at the place of arrest of accused Vicky for about one and half hours. IO had recorded statement of PW Somvir in his presence at the place of arrest. No other statement of PW was recorded at the place of arrest in his presence. There was light of street light at the place of arrest. The writing works were conducted while sitting under the street light, which is at a distance of 8/10 fts. away from water tank. He denied the suggestion that accused Vicky FIR No. : 70/2007, PS: New Usmanpur Page 23 of 29 24 himself gone to police station New Usmanpur as his father was detained illegally in the police station. His statement was not recorded at the place of pointing and his was recorded only once at spot on 4.3.2007. He was question that that he has said in the earlier part of the statement that his statement was recorded at water tank and now he has stated that his statement was recoded at the spot and asked which of the two statements are correct ? He stated that his statement was recorded at the spot is correct. His testimony is also contradicted by PW26 Inspector M. A. Khan that only statement of PW Somvir was recorded at the place of arrest of Vicky. Whereas PW Somvir stated that his statement was not recorded at the spot but at the police station. PW SI Dalchand stated that his statement was recorded only once at the spot. There are material inconsistency between testimonies of witnesses and the version of arrest of accused appears to be doubtful. Moreover, the presence of Somvir is also doubtful from his testmony. Therefore recovery at the time of the arrest of the accused is not free from doubt. Moreover, the wrist watch which is claimed to be belonging to the deceased was found allegedly worn by accused at the time of arrest, has not been proved to be belonging to the deceased. PW1 Dinesh has nowhere stated that the wrist watch of his deceased brother was missing. He had not identified the wrist watch as belonging to his FIR No. : 70/2007, PS: New Usmanpur Page 24 of 29 25 brother. The testimony of Somvir is also not believable as he had no knowledge that Dinesh was wearing the wrist watch which was missing and therefore incriminating evidence that the wrist watch of the deceased was found from the possession of accused is not proved.
18. Now coming to the other circumstance of the recovery of blood stained clothes effected at the instance of the accused. PW26 Inspector M. A. Khan stated that on 5.3.2007, during police custody, accused led them to Aligarh and from the bushes near Mata Mandir, Ram Bagh Colony, GT Road Aligarh, he pointed out the place and took out one jeans pant and jacket having some blood stains which was seized through seizure memo as Ex.PW22/A. In his crossexamination he stated that he does not remember who had made departure entry in the rojnamja while leaving to Aligarh and he also does not remember the DD number of the said departure. They had not made any arrival entry in the concerned police station of Aligarh. He admitted that they did not inform concerned police station regarding their arrival at Aligarh and also that there is no specific identification mark on the jeans pant. Further, they went to Aligarh by private vehicle, probably it was Maruti van. He does not remember from where he hired the same and also does not FIR No. : 70/2007, PS: New Usmanpur Page 25 of 29 26 remember its registration number. He also does not remember who paid the fare. No public person was joined in the investigation at Aligarh. He used the seal of SI Dal Chand having initials of DC. SI Dal Chand was not with him when they visited to Aligarh and admitted that the seal of SI Dal Chand was with him. He does not remember the date on which he took the seal of Dal Chand and he did not record the statement of SI Dal Chand to this effect.
19. The witness is of the rank of Inspector. The accused was in police remand, he does not remember the departure and arrival on which he had taken the accused to the Aligarh. He had not made arrival entry at the Aligarh Police Station and did not inform concerned police station regarding their arrival at Aligarh. He did not join any person in the police station. He used the seal of another IO (SI Dal Chand), who had also conducted the investigation of this case and he does not remember from where he had hired the vehicle for going to Aligarh or who had paid the fare of the same. Therefore his testimony is full of doubt that he in fact visited Aligarh or not. As regards clothes, he admitted that there are no specific identification mark. Further, as per FSL result Ex.PW26/I, the blood was not detected on exhibit 11a, 11b, 11c and 11d which are appears to be clothes of accused. Therefore even the recovery of FIR No. : 70/2007, PS: New Usmanpur Page 26 of 29 27 clothes at the instance of the accused does not in any manner incriminate the accused or link him in any manner.
20. PW22 HC K. P. Singh had joined the investigation with IO in recovery at Aligarh. In his crossexamination, he categorically stated that there is no identification mark on jeans pant and jeans jacket. He does not remember the number of DD entry by which they left the police station. He does not remember the registration number of the private vehicle by which they had gone to Aligarh. He also does not remember the name of the driver and make of the vehicle and from where the vehicle was hired and who had made the payment of the same and stated that perhaps SHO had made the payment. He admitted that there was no police officer with them having the initials of 'DC' and IO had kept the seal with him after sealing the parcel and they had not made any arrival entry at the local police station at Aligarh. Similarly PW23 Ct. Subhash stated that he does not remember the registration number of the private vehicle by which they had gone to Aligarh. He also does not remember the name of the driver and state that the make of the vehicle was TATA Indica. He does not know from where the vehicle was hired and who made the payment of the same. He does not know whether IO had issued any written notice to the public FIR No. : 70/2007, PS: New Usmanpur Page 27 of 29 28 persons who refused to join the investigation at Aligarh. He stated that IO had gone in the local police station and he had made the arrival entry and the police officer from the local police station had accompanied them whereas IO claims that he had not made any entry to the police station at Aligarh. Therefore once the accused was in police remand, it is imperative for the investigating officer to have made departure entry at his own at the police station and thereafter, arrival entry at the PS at Aligarh which was outside the Delhi and again, after returning from the Aligarh, they should have made arrival entry at the Police Station. Further, surprisingly, neither IO nor the constables accompanying him, knew the registration number of the vehicle nor they are aware of the name of the driver and the make of the vehicle nor any public witness was joined and no notice was given to the public witnesses for their nonjoining, therefore, the recovery of blood stained Jeans Pant and Jacket at the instance of accused allegedly worn by him at the time of committing offence of this case, are not free from doubt and therefore prosecution has failed to prove the circumstance against accused.
21. Accordingly, I am of the opinion that prosecution has failed to prove the circumstance of last seen, circumstance of recovery of FIR No. : 70/2007, PS: New Usmanpur Page 28 of 29 29 wrist watch from the person of the accused and the recovery of blood stained clothes at the instance of the accused. The prosecution has miserably failed to complete the chain of circumstances, therefore, I am of the opinion that accused is entitled to benefit of doubt. Accordingly, accused Vicky is acquitted of the charges. He be released from J/C forthwith, if not required in any other case. Case property, if any, be destroyed after the expiry of the appeal period. File be consigned to record room.
Announced in the open court
today i.e. on 15.09.2010 GURDEEP SINGH
ASJ04/NE/KKD/15.09.2010
FIR No. : 70/2007, PS: New Usmanpur Page 29 of 29