Delhi District Court
State vs . Aakil on 24 March, 2022
FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 IN THE COURT OF SHRI VISHAL GOGNE: ADDL. SESSIONS JUDGE04 : SOUTHWEST DISTRICT, DWARKA COURTS: NEW DELHI Registration No. 440624/2016 CNR No. DLSW010001272013 State Vs. Aakil S/o Mukim Ahmad R/o B372, J J Colony, Hastal Uttam Nagar & 98, Ram Nagar Mohalla Teh. Chandpur, PS Nurpur Distt. Bijnore, UP. FIR No. : 345/2013 Police Station : Bindapur Under Sections : 302/380/404/411 IPC Date of committal to Sessions Court : 16.11.2013 Date on which judgment was reserved: 09.03.2022 Date on which Judgment pronounced : 24.03.2022 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The sole accused in the present trial, namely Aakil, has faced trial for the last about seven and a half years since being summoned to answer the allegations against him.State V/s Aakil Page 1 of 1
FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
2. The evidence led by the prosecution has attempted to support the following charge (framed on 10.12.2013) against the accused:
"That on 28.07.2013 at unknown time at H. No. RZ142, Indra Park, Uttam Nagar, New Delhi within the jurisdiction of PS Bindapur you committed the murder of Anil S/o Hari Singh and thereby committed an offence punishable under section 302 IPC and within my cognizance. Secondly, on the above said date, time and place you committed the theft in the building where deceased Anil used to reside and said building was used for human dwelling and thereby you have committed an offence punishable under section 380 IPC and within my cognizance. Thirdly, on the above said date, time and place you dishonestly misappropriated certain moveable property namely LCD TV make Toshiba, Mobile Phone of deceased, two gold rings and one gold chain belonging to deceased Anil and had not since been in the possession of any person legally entitled and that you have thereby committed an offence punishable under section 404 IPC and within my cognizance.
Fourthly, on 01.08.2013 at shop No. C289, JJ Colony, Hastal Road, Uttam Nagar, New Delhi, you dishonestly received/retained the stolen property i.e. LCD TV make Toshiba Model No. 24PB1E C12X01H02549AI which you had sold for a sum of Rs. 4500/ to one Yusuf S/o Ahmed Sahid and thereafter on 02.08.2013 you dishonestly retained the stolen property i.e. two gold rings which you gave to one Furkan S/o Mauladeen R/o Village Hussainpur Kalan PS Siwan Tehsil Dhampur, District Bijnore UP, knowing and having reasons to believe that these were the stolen properties and thereby committed an offence State V/s Aakil Page 2 of 2 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 punishable under section 411 IPC within my cognizance.
And, I direct that you be tried by this court for the aforesaid offences:
ASJ/Dwarka Court 10.12.2013"
3. The accused pleaded not guilty to the above articles of charge and claimed trial.
4. The FIR in the present matter had been registered upon an information received through DD No. 28A dated 28.07.2013, PS Bindapur, New Delhi (Ex. PW14/A) regarding a boy having shut house No. RZ142, Indira Park, Near Shiv Shakti Property, Pankha Road from the inside and blood being seen at the spot. On receipt of the said DD entry, Const. Ompal (PW24) alongwith SI Jasbir (PW
25) reached the place of occurrence and entered the room situated on the ground floor to find a bed (diwan) covered with a blood stained bed sheet of blue colour, a blood stained pillow of light blue colour as well as a blood stained towel of pink colour. The floor was stained with blood as were the door of the attached toilet and the wall.
5. A dead male, aged 3540 years, was found inside the toilet in a naked condition. A cursory examination of the body reflected a small cut on the right side of his neck and a small cut on the neck below the chin. Below the said wound, the throat of the victim was found slashed with a sharp edged weapon. The toilet was filled with blood in a large quantity.
State V/s Aakil Page 3 of 3FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
6. The IO i.e. Inspector Rajbir Singh Lamba (PW27) did not find any witness at the spot and the victim was identified as Anil S/o Hari Singh, resident of A156,157, Jai Vihar, PhaseIInd, Najafgarh, New Delhi. The crime team was called to the spot and the FIR was registered under section 302 IPC.
7. The articles seized by the IO (through seizure memo Ex. PW25/D) from the place of occurrence were :
(i) Two empty glass tumblers and one quarter bottle of liquor (containing few drops of liquor) bearing the label "Mac Dowel No.1 Platinum 180 ml".
(ii) Plastic box bearing the label "Himalaya Sagar Sweets & Restaurants".
(iii) Blood in gauze from the floor of the room.
(iv) Blood in gauze from the bathroom floor. (v) Green coloured pillow with blue blood stained cover, blue
coloured bed sheet with blood stains and blood stained pink coloured towel.
8. The chargesheet reveals the investigation to have got actionable leads and direction from the statement of Sudhir Khosla who was the roommate of the deceased. He stated that he had been residing with deceased Anil Kumar, an employee of MCD, and had known him since 1995. Further, that on 28.07.2013, he had left his room as usual at about 11:30 am. Deceased Anil Kumar generally left before him in the morning and would mostly come back before him in State V/s Aakil Page 4 of 4 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 the evening. Sudhir Khosla further stated that deceased Anil had recently purchased a mobile phone having the number 9891377420. He stated to the IO that when he returned home at around 8:40 /8:45 pm, he found the door to be closed. He first opened the iron gate to find blood scattered all over and the bed to be disturbed. Anil did not respond to his call. Sudhir Khosla now entered the room to find Anil lying naked in the bathroom with blood on the floor. He immediately came out, informed the neighbours and called the police on number
100.
9. Crucially, Sudhir Khosla found the mobile phone of Anil and a Toshiba TV to be missing from the room. He sensed that somebody had searched the bag of Anil. Sudhir handed over the photocopy of the bill for purchase of the said TV to the IO.
10. He described the crime scene as also including a table with two glass/tumblers, a quarter bottle of liquor with just a few drops in it and a packet of snacks (namkeen) of the brand Himalaya Sagar. The bed including the pillow, bedsheet and towel were soaked in blood.
11. As noted in the earlier part of the judgment, the above articles (and blood samples) had been collected by the IO through seizure memo Ex. PW25/D.
12. The prosecution examined 27 witnesses to further the charge.
13. While no eye witness was cited to the incident, the present accused namely Mohammad Aakil, an acquaintance of the deceased, was implicated during investigation upon purported secret information received by the IO upon which he was apprehended on 01.08.2013 at State V/s Aakil Page 5 of 5 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 about 3:15 pm near STD/PCO booth, Uttam Nagar, East Metro Station, New Delhi. It came to be known that the accused was a resident of B732, JJ Colony, Hastsal, Uttam Nagar, Delhi and permanent resident of House No. 98, Mohalla Ram Nagar, Noorpur, Tehsil Chandpur, District Bijnor, Uttar Pradesh. The accused purportedly made a disclosure statement admitting that being a barber by profession, he had used a razor (ustra) for committing the murder of Anil.
14. The chargesheet sought to explain the sequence of events leading to the violent death of Anil by citing the details from the purported disclosure statement of accused Aakil. These details may be highlighted in this inceptional part of the judgment in order to better appreciate the circumstances in which the accused has come to be tried for the offences in question.
15. The accused purportedly revealed that he had been working at "Cut & Care" Salon Indira Park and had met deceased Anil Kumar about one year prior to the date of incident. Anil, who was working as a 'Beldar' with the MCD, invited the accused to his house and showed him an obscene film. Though the accused did not appreciate the physical advances made by Anil, the relationship gradually became consensual and developed into a sexual relationship. Anil would also purportedly give certain amount of money to the accused for his expenses. The accused got married about three months prior to the date of incident and even left the job at the salon. However, Anil continued to pursue him and would often call him over. The accused State V/s Aakil Page 6 of 6 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 had left for his village about twenty days prior to the incident and had returned on 28.07.2013 when, on the same date, Anil called him from mobile phone no. 9891377420 on his mobile phone no.7503607393. On noticing the said missed call, the accused called Anil back. Anil again invited him to his room. Since the accused intended to end their relations, he picked up a razor (ustra) from his rented accommodation and reached the room of Anil. The two started drinking and Anil purportedly again committed a sexual act upon the accused. Finding an opportune moment, the accused took out the razor from his trousers and inflicted a blow upon the neck of Anil. Anil purportedly ran towards the bathroom in a naked condition as the accused chased him. While Anil was washing his neck in the bathroom, the accused grabbed a bucket like steel utensil and hit Anil on the head with it. As Anil fell to the floor, the accused slashed his neck with the razor. He subsequently washed the blood from his body and the razor. The accused then removed the mobile phone of Anil, searched the room and also took away two male gold rings and one gold chain apart from one LCD TV which he kept in a cover.
16. After the accused left the room of Anil, he purportedly sold the LCD TV to a scrap dealer near his residence for Rs. 4500/ and threw the razor in the water outlet pipe of his rented room. He gave the gold chain and two gold rings to one Furkan (PW 3), a resident of Hussain Pur. Furkan then left for his village.
17. It is the assertion of the prosecution, relying on the chargesheet, that the blood stained bucket like steel utensil was State V/s Aakil Page 7 of 7 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 recovered from the room of the deceased at the instance of the accused. Also, that the accused then led the IO to the shop of a scrap dealer namely Yusuf (PW6), resident of C289, J J Colony, Hastsal Road, Uttam Nagar, New Delhi to whom the Toshiba LCD TV had purportedly been sold by the accused. Yusuf then produced a photocopy of the identity document of the accused upon which he had written that he had sold the TV to Amit and bearing the date 28.07.2013. The accused then purportedly got recovered the weapon of offence i.e. a razor from the drain pipe of his first floor situated room at house no. B732, J J Colony, Hastsal Road, Uttam Nagar, New Delhi. The razor was recovered by breaking the drain pipe and the staircase in the presence of witnesses.
18. During the course of custodial investigation, the accused was taken to Bijnore, UP and two rings of yellow coloured metal with small stones were recovered from Furkan, R/o of village Hussain Pur, District Bijnore, UP.
19. The postmortem report dated 29.07.2013 (Ex PW7/A) from DDU hospital recorded the opinion regarding the cause of death as "shock (haemorrhagic shock) caused by cut throat injury by sharp edged weapon like knife etc.". The injury upon the head was opined as possibly having been caused by a blunt object like club, rod etc. The manner of death was described as homicide.
20. The subsequent opinion dated 08.08.2013 (Ex. PW7/C) obtained from DDU hospital regarding the consistency of the weapons of offence (razor and steel container) in respect of injuries sustained State V/s Aakil Page 8 of 8 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 on the body of the deceased was that the injury upon the neck could have been caused by the razor and the injury upon the head could have been inflicted by the steel cistern.
21. The call details and location records of the mobile phone numbers of the deceased and accused revealed two phone calls to have been made from the mobile phone of the accused (7503607393) to the mobile phone of the deceased (9891377420) at about 3:12 pm and 3:25 pm on the date of incident. Investigation further revealed that the mobile phone with IMEI Number 865442013274390, belonging to deceased Anil, which had purportedly been stolen by the accused after the incident, had been used on 01.08.2013 by the accused with his own mobile phone number 7503607393.
22. The investigating officer also lifted a chance finger print from the room of the deceased for being matched with the finger print of the deceased and the accused. The report from the Finger Print Bureau (FPB) dated 01.10.2013 (admissible under section 293 Cr. PC) revealed that the chance print was not identical with any of the finger/palm prints of the deceased or the accused. Further, that since the chance print was only a partial print, it could not be searched on the record of the Bureau.
23. The chargesheet thus came to be forwarded for trial alleging the commission of the offences of murder, dishonest misappropriation of the property of the deceased, theft at the residence of the deceased and dishonest receiving of stolen property inter alia sections 302/404/380/411 IPC.
State V/s Aakil Page 9 of 9FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 24 Since no eye witness to the incident was cited during investigation, the accused is sought to be incriminated by the prosecution on the basis of the purported recovery of the alleged weapon of offence i.e. a razor at his instance and also the purported recovery of certain articles at his instance/ascribed to him which were purportedly removed from the residence of the deceased i.e. two gold rings and a LCD TV,
25. The principal witnesses qua these recoveries were PW3 namely Furkan, PW4 namely Rajesh and the IO i.e. PW27 Inspector Rajbir Singh Lamba.
26. While PW3 largely remained loyal to his statement under section 161 Cr.PC and only failed to recount whether he had handed over the two rings to the police on 03.08.2013, PW4 was less kind to the prosecution and had to be cross examined at length by the prosecution.
27. The court shall revert to the deposition of PW3 and PW4 at a later stage in this judgment. The deposition of the other witnesses, less relevant to the prosecution than PW3 and PW4, may first be summarised.
28. PW1,who was the landlord of the deceased, deposed regarding the residence of another person namely Sudhir Khosla with the deceased and that he had received information on 28.07.2013 at about 9:00 pm from another tenant namely Kamla Rai regarding Anil (deceased) being missing. He had been informed by Kamla Rai that the gate of the room of Anil was open and blood was lying in the State V/s Aakil Page 10 of 10 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 room. PW1 deposed that he reached the spot at 9:15 pm but did not see the dead body as he had not entered the room. He did, however, notice blood stains in the room and also saw the police officials shifting the dead body to the hospital.
29. The next witness i.e. PW2 namely Waseem Ahmed, though not cited or argued by the ld prosecutor to be a witness of note qua the charge, did get represented as having played an accidental role in the chain of circumstances. To elaborate the arguments of the Ld. APP, the accused had been using the mobile phone number of PW2 to make calls to the deceased.
30. PW2 stated that two police officials had enquired from him regarding mobile phone number 7503607393 by asking whether the same was in his name. He had informed the officials that the said number had not been issued to him and infact it was being used by accused Aakil. Subsequently, PW2 took the police officials to the house of Aakil at Hastsal Road, Uttam Nagar. The accused was found at the said address and was taken, alongwith PW2, to PS Bindapur.
31. Pertinently, PW2 accepted during cross examination by the counsel for the accused that the application form for the purchase of the SIM card of phone No.7503607393 (Ex. PW2/A) and the voter I card alongwith the same (Ex. PW2/B) were bearing his photograph. He denied knowledge of the identity of the person who had filled the application form and the declaration (Ex. PW2/C).
32. The deposition of PW2 must therefore be linked with the deposition of the witnesses from the mobile operator companies who State V/s Aakil Page 11 of 11 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 produced the details regarding the ownership of the two mobile numbers in question as well as the call detail records between the same.
33. PW9 was an official from Idea Cellular Ltd who exhibited a copy of the Customer Application Form (CAF) i.e. Ex. PW9/A related to mobile phone No. 9891377420 in the name of deceased Anil Kumar. The call details of the said mobile phone number between 01.07.2012 and 08.08.2013 were tendered in evidence as Ex. PW9/C.
34. Similarly, the official from Aircel Ltd i.e. PW10 identified a copy of the Customer Application Form (CAF) i.e. Ex. PW2/A (previously exhibited by PW2) related to mobile phone No. 7503607393 in the name of Waseem. The call details of the said mobile phone No. between 01.01.2012 and 08.08.2013 were tendered in evidence as Ex. PW10/A.
35. Seen together, it may be summarised as a finding that mobile phone no. 7503607393 was issued in the name of PW2 namely Waseem Ahmad but was being used by accused Aakil while phone no. 9891377420 was issued to deceased Anil Kumar.
36. The call details record of the above two phone numbers also reflect that two phone calls lasting 52 seconds and 17 seconds were made from the mobile number used by the accused to the mobile number used by the deceased at 3.12 pm and 3.25 pm respectively on the date of incident i.e. 28.07.2013.
37. Whether the above finding constitutes any incriminating evidence of a supporting nature would be determined only upon a State V/s Aakil Page 12 of 12 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 complete understanding of the evidence in the present trial but the court does presently proceed on the assessment that the accused and deceased were known to each other and were in regular contact.
38. PW7 was the doctor who prepared the post mortem report of the deceased as Ex. PW7/A which, as noted earlier, opined the cause of death to be shock (haemorrhagic shock) caused by cut throat injury by sharp edged weapon like knife etc. The witness also proved the sketch of the ustra prepared by him as Ex. PW7/B and further opined that injuries No.1 and 2 mentioned in the post mortem report could have been inflicted by a ustra while injury no.3 could have been inflicted by the steel cistern which had been shown to him alongwith the ustra. The subsequent opinion of PW7 was proved by him as PW7/C.
39. The deposition of PW7 was beyond reproach and not subjected to any cross examination. The findings recorded in the post mortem report do therefore corroborate the chain of events forming the immediate cause of death as being multiple injuries including a fatal injury by way of slashing of the throat and a head injury caused by blunt force.
40. The next witness for the prosecution i.e. PW8 was formal in the sense that he was the brother of the deceased and proved the statement (Ex. PW8/A) whereby he had identified the dead body of Anil Kumar.
41. PW11 was the constable who had collected 8 sealed pulandas, one sealed pulanda, one sealed box and the photocopy of Election I State V/s Aakil Page 13 of 13 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 card and specimen signatures for depositing the same at FSL, Rohini and deposed that the same had not been tampered with while in his possession. His cross examination did not express otherwise either.
42. The Ld. APP argued in favour of a verdict of guilty relying chiefly on the deposition of PW3 and PW4. It was agitated that whereas PW4, who was the brother of the deceased had recounted the entire incriminating circumstances against the accused by deposing regarding his arrest, disclosure statement, pointing out of the place of incident and also the recovery of the weapon of offence i.e. the ustra, he had also proved other circumstances like the recovery of the LCD as well as the phone of the deceased from the possession of the accused. Further, that the deposition of PW4 regarding the accused having handed over two rings of the deceased to another person had been proved by the said person i.e. PW3. In sum, the prosecutor agitated that the disclosure statement Ex. PW4/C being admissible under section 27 of the Indian Evidence Act to the extent of the discovery of new facts/recovery of the above articles, the guilt of the accused was evident in having inflicted the sharp edged cuts using an ustra upon the deceased.
43. In defence, the ld counsel for the accused highlighted at the outset, the want of any judicial TIP of the recovered rings and the absence of proof of ownership per se to agitate that the prosecution had been unable to establish the two rings to have been owned or possessed at any stage by the deceased. The counsel next pointed to the lack of proof of ownership of the deceased over the mobile phone.
State V/s Aakil Page 14 of 14FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 The counsel also submitted that the purported scrap dealer i.e. PW6 from whom the LCD of the deceased had purportedly been recovered had turned completely hostile to the prosecution and denied any such sale of the LCD by the accused to him.
44. It was submitted that the alleged weapon of offence i.e. the ustra itself was not found to bear any traces of blood and had not been subjected to any finger print or DNA analysis. The counsel essentially argued that there was no evidence to prove either the use of the ustra in slitting the throat of the accused or the use of the same by the accused.
45. The defence counsel did also refer extensively to the deposition of PW4 including his cross examination by the Ld. APP to submit that he had not supported the prosecution in material particulars.
46. The court would find it more instructive to discuss the deposition of PW3 and PW4 in light of the arguments raised as against a complete reproduction of the same.
47. The deposition of PW4 being the basis for the supporting account from PW3, the court would first examine the testimony given by PW4 before drawing any inferential association with the deposition of PW3 or any other witness.
48. Undoubtedly, the deposition of PW6 namely Yusuf from whom the Toshiba LCD TV purportedly belonging to the deceased and allegedly stolen by the accused was recovered, would be intertwined with the statements of PW3 and PW4.
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49. To place the case of the prosecution in perspective, the evidence is largely circumstantial in nature and the recovery of the belongings of the deceased from the accused/from persons to whom he had handed over the same has been projected as key links in the circumstantial evidence. The submission of the prosecution has been that these recoveries point to the accused and none else as the assailant who committed the murder of Anil Kumar. The court would categorise the recoveries so agitated by the prosecution as under:
(i) Two rings of golden colour allegedly recovered from PW3 namely Furkan (in the presence of PW4).
(ii) Recoveries from the accused in the presence of PW4 namely Rajesh (brother of the deceased).
(a) Recovery of a steel container (also a purported weapon of offence).
(b) Recovery of the mobile phone of the deceased from the accused in the presence of PW4.
(c) Recovery of the ustra (razor) i.e. the weapon of offence at the instance of the accused and in the presence of PW4.
(iii) Recovery of the Toshiba LCD TV purportedly belonging to the accused from PW6 namely Yusuf, to whom the same had allegedly been sold by the accused for Rs. 4500/.
Recovery of two golden rings
50. The deposition of PW3 (Furkan) may first be considered.
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51. This witness supported the prosecution almost in entirety by deposing that he had known the accused for about one and a half months prior to 30.07.2013 as he used to visit his roommate namely Wasim (PW2). PW3 deposed that on 30.07.2013, accused Aakil had come to his shop and handed over two rings of golden colour to him. These rings were also having studs. He further stated that he had left for his native place i.e. Bijnore, UP on 31.07.2013 and received a call from his landlord on 01.08.2013 informing him that police officials were searching his room. PW3 stated that he immediately returned to Delhi on the same day and handed over both rings to the police.
52. Pertinently, PW3 identified his signatures on the seizure memo of the two rings and thus proved it as Ex. PW3/A. He also identified the two rings when produced during his deposition. These rings were Ex. P1 (colly.).
53. The only glitch in the deposition of PW3 from the perspective of the prosecution was that upon a leading question from the ld. APP, he could not say whether he had handed over the rings to the police officials on 03.08.2013.
54. The examination in chief of PW3 did not suffer any discredit when cross examined by the counsel for the accused. The cross examination was largely directed to the value of the rings as being inconsequential on account of purportedly not being made of gold. The court does not find the circumstance of the rings being precious metal or otherwise to be material. The recovery of the rings has been cited by the prosecution not to assert theft per se but to establish the State V/s Aakil Page 17 of 17 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 possession of the accused over the property of a dead person as indication of his complicity in the murder itself.
55. It may be additionally highlighted by the court that PW4 namely Rajesh also stated in his deposition that the two rings (Ex. P1) had been handed over by a person to police officials in his presence on 03.08.2013.
56. While PW3 had not been able to recall whether the rings were seized from him on 03.08.2013, the said account is more a reflection of natural attrition in memory upon lapse of time. The deposition of PW4 then did serve to correct the said omission by confirming the date of recovery of the two golden rings as 03.08.2013.
57. The deposition of the two public witnesses inter alia PW3 and PW4 is sufficient to hold beyond doubt that these two rings were indeed handed over by accused Aakil to PW3 namely Furkan on 30.07.2013.
58. This brings the court to the more important question of the ownership of the rings or in another words whether the rings did belong to deceased Anil. Here, unlike the Toshiba LCD TV (which shall be discussed in the subsequent part of the judgment) no proof of purchase or ownership of these rings was relied upon by the prosecution. No witness was cited as having seen the deceased wearing the rings Ex. P1 in their sight.
59. Neither the landlord of the deceased i.e. PW1 (Harish Kumar) nor his room mate i.e. PW5 (Sudhir Khosla) made any mention of such rings having been seen by them with the deceased. (The court State V/s Aakil Page 18 of 18 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 would notice here that the deposition of PW5 namely Sudhir Khosla cannot be read in evidence as he could only be partly examined in chief before his demise. For want of a complete account and also the absence of any cross examination, his part examination in chief cannot be read in evidence). PW4 namely Rajesh who was the brother of the deceased, while proving the recovery of the rings from PW3, did not claim that these had belonged to his deceased brother.
60. Hence, it remains not proved by way of direct evidence that the two rings did indeed belong to deceased Anil Kumar. This leaves only the purported disclosure statement of the accused (Ex. PW4/C) as the basis for such an inference. Since a disclosure statement is not admissible except under the conditions specified under section 27 of the Indian Evidence Act, the portion of the disclosure statement of the accused which related to his having stolen two golden rings of the deceased (alongwith a golden chain - which was not recovered) and then having handed it over to Furkan (PW3) cannot be read in evidence. Moreso, since the rings themselves were not recovered on the direct and immediate disclosure of the accused but upon the production of the same by PW3 before the police at the police station. In sum, the prosecution has not been able to prove the nexus of the two rings Ex. P1 with the deceased.
61. In similar vein to PW3 but on a larger scale was the deposition of PW4. This witness had remained with the police officials when the recovery of the steel container, ustra, LCD and the mobile phone of the deceased was made. He duly deposed in favour of the State V/s Aakil Page 19 of 19 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 prosecution to state that after 23 days of the incident, he met the IO Inspector Rajbir Singh Lamba (PW27) and other police officials who had the accused in custody at Uttam Nagar East Metro Station. Further, that the IO informed him regarding the intention of the accused to disclose something. PW4 next deposed that the accused made a disclosure statement, got recovered a container, an ustra from the drain and also a LCD TV from the shop of a scrap dealer at J J Colony, Uttam Nagar. He next stated that on 01.08.2013, the mobile phone of his deceased brother was also recovered from the possession of the accused. PW4 lastly deposed that on the next day, he accompanied the police party to the native village of the accused i.e. Chandpur District, Bijnore, UP. When the police party learnt that the said persons had returned to Delhi, PW4 returned with them to Delhi and met the said person at police station Bindapur on 03.08.2013.
62. As noted in the earlier part of the judgment, PW4 corroborated the recovery of the two rings by the police from PW3 through recovery memo Ex. PW3/A.
63. The documents tendered in evidence by PW4 Rajesh are as follows:
(i) Identification of the dead body of the deceased (brother of PW4) vide memo Ex. PW4/A.
(ii) Handing over of the dead body of the deceased vide memo Ex. PW4/B.
(iii) Disclosure statement of the accused i.e. Ex.PW4/C. State V/s Aakil Page 20 of 20 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
(iv) Pointing out memo of the place of incident and seizure memo of one steel container i.e. Ex. PW4/D.
(v) Sketch of ustra i.e. Ex. PW4/E.
(vi) Seizure memo of ustra i.e. Ex. PW4/F.
(vii) Seizure memo of LCD i.e. Ex. PW4/G
(viii) Seizure memo of mobile phone i.e. Ex. PW4/H
(ix) Seizure memo of two rings i.e. Ex. PW3/A
(x) Arrest memo of the accused i.e. Ex. PW4/J
64. The deposition of PW4 also involved the:
(i) Identification of the two rings as Ex. P1
(ii) Identification of the mobile phone as Ex. P2.
(iii) Identification of the steel container as Ex. P3
(iv) Identification of the TV LCD Toshiba through
photographs as Ex. P4.
(v) Identification of the ustra as Ex. P5.
65. Since the other witness of note qua the bulk of the seizures/recoveries apart from PW4 is the IO (PW27), the substance of his deposition inter alia the documents tendered in evidence by him /reiterated after being previously proved by other witnesses, is as follows:
(i) Site plan already exhibited as Ex. PW25/E.
(ii) Photographs of the spot already exhibited as Ex.
PW16/A1 to Ex.PW16/A8.
State V/s Aakil Page 21 of 21FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
(iii) Seizure memo of the case property alongwith all the exhibits as Ex. PW25/D.
(iv) Crime Team Report alongwith report of fingerprint expert Ex. PW27/1.
(v) Identification of the dead body already exhibited as Ex.
PW4/A and Ex. PW8/A.
(vi) Inquest Report Ex. PW27/2.
(vii) Written request for conducting of postmortem of the
deceased to the Autopsy Surgeon, DDU Hospital Ex. PW27/3.
(viii) Postmortem of the deceased already exhibited as Ex.
PW7/A.
(ix) Seizure memo of blood in gauze and viscera of the deceased already exhibited as Ex. PW25/F.
(x) Handing over of dead body to the relatives of the deceased already exhibited as Ex. PW4/B.
(xi) Copy of the bill of LCD already exhibited as Ex.
PW20/A.
(xii) Seizure memo of the bill of LCD TV already exhibited as Ex. PW25/G.
(xiii) Disclosure statement of accused already exhibited as Ex.
PW4/C
(xiv) Personal search memo of accused already exhibited as Ex. PW4/I State V/s Aakil Page 22 of 22 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
(xv) Seizure memo of mobile phone make of Duke Moses of brown colour already exhibited as Ex. PW4/H. (xvi) Age memo of accused Ex. PW27/4.
(xvii) Seizure memo of steel container already exhibited as Ex.
PW4/D (xviii) Seizure memo of LCD TV already exhibited as Ex.
PW4/G (xix) Seizure memo of voter ID Card of accused Yusuf Ex.
PW27/5.
(xx) Sketch of the razor already exhibited as Ex. PW4/E. (xxi) Seizure memo of the razor already exhibited as Ex.
PW4/F (xxii) Doctor's report regarding the weapons and PM Report already exhibited as Ex. PW7/C. (xxiii) Site plan already exhibited as Ex. PW18/A. (xxiv) PCR form already exhibited as Ex. PW15/A. (xxv) Copy of invoice of the LCD, provided by the Manager of Better Deals Electronic Pvt. Ltd already exhibited as Ex. PW27/6.
(xxvi) Identification of razor (ustra) already exhibited as Ex. P 5 (xxvii)Identification of mobile phone make of Duke already exhibited as Ex. P2.
(xxviii) Photographs of the LCD and steel container Ex.
PW27/7 (Colly.) State V/s Aakil Page 23 of 23 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
66. The court shall now revert its attention to PW4. Since the deposition of PW4 is the centre piece of the prosecution version, not only the contents of the same but also the progress of his deposition is required to be referenced.
67. The court is highlighting the course of his deposition as the examination in chief having been concluded on 04.08.2014, the cross examination was conducted on a later date i.e. 30.08.2014. This cross examination was also partly deferred to 15.01.2015 when it was concluded. Since it is not entirely uncommon for witnesses to change tune between examination in chief and cross examination, especially when an interval exists between two, the deposition of PW4 must also be judged for its evidentiary value in light of the apparent change of track by the witness over these three dates.
68. The staggered deposition of PW4 was the subject of a particular argument raised by the Ld. Counsel for the accused. The counsel referred to the cross examination of PW4 on behalf of the accused on 30.08.2014 to submit that PW4 had infact only visited the police station on 01.08.2013 and not accompanied the police officials to any other place to witness the recovery of the above articles from the accused. The counsel had further pointed to the assertion of PW4 that the IO had got signed some papers from him at the police station.
69. In essence, the inference to be drawn from the above arguments is that PW4 is sought to be coloured as an unreliable witness who was infact inimical to the prosecution version.
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70. The court is not able to agree with the above inference for multiple reasons.
71. Firstly, during deposition in the first instance i.e. by way of examination in chief on 04.08.2014, the witness duly supported the prosecution with respect to the multiple recoveries made from the accused in his presence. He also corroborated that he had met the IO (PW27) and the accused at Uttam Nagar East Metro Station. Though PW4 was also cross examined by the Ld. APP on the same date as he had failed to mention certain details, he duly admitted all suggestions relating to the date and time of the arrest of the accused. In this view, the missing portion of his account in examination in chief can be attributed to ordinary attrition of memory with the passage of time. The substance of his deposition does not justify him as a hostile witness.
72. Secondly, even the cross examination of PW4 on the next date i.e. 30.08.2014 by the counsel for the accused was not successful in mitigating the effect of the examination in chief recorded on 04.08.2014. During this cross examination, all that PW4 said was that police officials had met with the accused at the police station on 10:45 pm on 01.08.2013 and got signed some papers. He further stated that he remained at the police station for three to four days. He also could not remember whether he had signed six or seven documents in the police station.
73. The court would highlight that the interval between the examination in chief and cross examination of witnesses does often State V/s Aakil Page 25 of 25 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 reflect a changed stance by the witnesses and such a change can often not be ruled out as having been caused due to influence or coercion of the witnesses. Such a possibility cannot be ruled out qua PW4 either. The court, having weighed the examination in chief of PW4 on 04.08.2014 and his cross examination on 30.08.2014 finds the former to be worthy of belief.
74. Thirdly, even the limited benefit which the accused was hoping to receive from the cross examination dated 30.08.2014 was lost when PW4 was further cross examined on another subsequent date i.e. 15.01.2015. This cross examination was conducted by entirely new counsels. PW4 now denied the suggestion to the effect that he did not know on which papers he had signed. Infact, he volunteered that he had signed on seizure memos and had been informed about the contents of the same by the police. He denied the suggestion that the police had obtained his signatures on blank papers or that he did not know the contents of the documents prepared by the IO. The repeated cross examination of the witness brought life to the adage that cross examination is a double edged sword. In sum, the detailed documentation of seizure memos by PW4 on the first date of his deposition i.e. 04.08.2014 was neither required to be reproduced on the subsequent dates of his cross examination nor did it suffer any infirmity of material nature. The court would rather observe that the witness was probably sought to be influenced in favour of the accused but did not fall into the trap.
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75. Hence, the deposition of PW4 does not suffer any loss of credibility on account of cross examination and the recoveries proved by him are reliable evidence regarding the facts in issue qua the articles of charge.
76. The next aspect is the question of recoveries proved by him.
77. The material recoveries are the ustra, steel container, Toshiba LCD TV and mobile phone of the deceased.
Recovery of the ustra
78. PW4 deposed that the accused led the police party to his room at J J colony, Uttam Nagar and disclosed that he had dropped the ustra used for commission of the murder of deceased Anil into a pipe going down from the terrace to the drain. The accused then purportedly got recovered the said ustra from the drain. PW4 duly proved the sketch of the ustra as Ex. PW4/E and its seizure memo Ex. PW4/F.
79. It is important here to refer to the deposition of the IO (PW27) Inspector Rajbir Singh Lamba who similarly deposed that the accused had led them to his house i.e. B732, J J Colony, Hastsal and disclosed the throwing of the same into the drainage pipe from the first floor. PW27 had further specified that the razor could not be taken out from the first floor and that the police party had to break the drainage pipe and the portion of the staircase at the ground floor to take out the ustra from the drain pipe.
80. The deposition of the police witness (PW27) is apparently corroborated by the independent public witness i.e. PW4. Hence, State V/s Aakil Page 27 of 27 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 excluding the portion of the disclosure statement (Ex. PW4/C), which pertains to his admission to the commission of the murder, the remainder relating to recovery of the ustra at his behest is also admissible under section 27 of the Indian Evidence Act.
81. What is noteworthy in the above discussion is that the recovery does not pertain to cliched allegations of recovery of a weapon of offence from an open plot, bushes or open drain as is the case in numerous chargesheets in criminal cases. The present weapon of offence was embedded inside a drain running from the first floor to the ground floor to be taken out by physically breaking open the drain. Two conclusions are inescapable.
(i) The peculiar resting place of the ustra renders it to be a case of special and exclusive knowledge of the accused regarding its location. The disclosure statement and recovery are thus unimpeachable.
(ii) The removal of the ustra by breaking of the drain corroborates the special knowledge of the accused and the authenticity of the recovery proceedings. The seizure memo (Ex. PW4/F) qua the ustra is thus beyond challenge. The ustra itself was identified by PW4 as Ex. P1 and is duly identified too.
82. The deposition of PW4 and PW27, coupled with the disclosure statement of the accused renders it proved that the accused got recovered an ustra from the drainage pipe of his house in the presence of a public witness i.e. PW4.
83. The more crucial question of proof in relation to the ustra, however, was its status as the weapon of offence against the deceased.
State V/s Aakil Page 28 of 28FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 Here, the prosecution faltered in the proverbial last mile. As noted in the initial part of the judgment, the report from the Finger Print Bureau dated 01.10.2013 (admissible under section 293 Cr. PC) revealed that the chance print was not identical with any of the finger/palm prints of the deceased or the accused. Further, that since the chance print was only a partial print, it could not be searched on the record of the Bureau.
84. Thus, the recovery of the ustra at the instance of the deceased was not supplemented by evidence to support his use of the same. While the court has indeed placed great reliance on the exclusive knowledge of the accused regarding the peculiar resting place of the ustra i.e. the drainage pipe, the said circumstance does not of its own establish that this very ustra was used as a weapon by the accused upon the victim i.e. Anil.
85. The ustra was also bereft of any blood. This ustra was therefore not the subject of any analysis akin to testing of the blood or searching for DNA.
86. In sum, the ustra Ex. P5 has not been proved beyond reasonable doubt to have been the weapons of offence which could have been used to inflict any fatal injury upon the victim.
Recovery of steel container
87. PW4 had deposed that upon him accompanying the police team alongwith the accused from Uttam Nagar East Metro Station, the accused had led them to the place of incident and got recovered a State V/s Aakil Page 29 of 29 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 container which was seized through memo Ex. PW4/D. This seizure memo was further proved by the two police witnesses i.e. SI Jitender (PW26) and the IO (PW27). The court has found PW4 to be a credible witness and his independent status as a signatory to the seizure memo Ex. PW4/D proves the recovery of the steel container Ex. P3 at the instance of the accused.
88. However, much like the other weapon of offence i.e. the ustra, there is no forensic evidence on record to link the steel container with the injuries upon the deceased victim. That the medical opinion dated 08.08.2013 (Ex. PW7/C) alluded to the injuries upon the person of the deceased possibly being commensurate with such a container does not establish by itself that the container Ex. P3 was the very same container used to inflict a blow by the accused on the victim.
Recovery of Toshiba LCD TV
89. Before continuing with the thread of the deposition of PW4 qua the recovery of the Toshiba LCD TV purportedly belonging to the deceased, the court would preface the same with the deposition of PW6 namely Yusuf who was the scrap dealer to whom the accused had purportedly sold the TV stolen from the house of the deceased upon his murder. This witness did not support the prosecution. His brief examination in chief can be reproduced for the better part as under:
"I do not remember the date, month and year as to when the police official had come to my shop, State V/s Aakil Page 30 of 30 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 however, it happened about 56 months. I run a shop of furniture. I am in the business of sale and purchase of old furniture. In the year of 2013, one day 34 police officials alongwith one person had come to my shop and they made inquiries from me whether I have purchased some goods from said person who accompanied to the police official to my shop. I replied to the police official that I had never purchased any item from the said person. The police official obtained my signature on a blank paper. Thereafter, the police officials alongwith said person left my shop".
90. Even during cross examination by the State, PW6 remained stead fast in denying that any police official had come to his shop on 01.08.2013 with accused Aakil or that he had told them about Aakil selling a Toshiba LCD TV to him for Rs. 4500/. He denied that a copy of the voter I Card had been handed over by the accused to him or seized by the police. He also failed to identify the accused when attention was drawn towards him.
91. In view of the above deposition, the principal witness relating to recovery of the TV is not available in support of the prosecution.
92. Yet, PW4, upon whom the court had placed reliance in respect of the recovery of the ustra and also gold rings, did also refer to the Toshiba TV in his own examination in chief. PW4 specifically deposed that the accused had led him and the police officials to the shop of a kabadi (scrap dealer) at J J Colony, Uttam Nagar from where he had got recovered a LCD TV belonging to his deceased State V/s Aakil Page 31 of 31 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 brother. The witness then identified his signatures on the seizure memo of the TV and proved it as Ex. PW4/G.
93. The court would venture to observe that there is no particular order of preference in the matter of proof of a fact in issue which is capable of being proved by multiple or alternate witnesses. While the scrap dealer himself may have been the best person to validate the purported recovery, PW4 who was accompanying the police party, was equally placed in his capacity to prove the said recovery. The court finds the deposition of PW4 ,again supported by the IO (PW
27), to be credible. It stands proved beyond doubt that a Toshiba TV of the description mentioned in the seizure memo i.e. LCD REG 2A Model No. 24 PB 1E C12 X 01H0254GAI was recovered at the best of the accused from the shop of PW6.
94. Again, the portion of the disclosure statement relating to purported theft of the TV by the accused from the house of the deceased is excluded from admissibility but the recovery of the TV is itself a new fact admissible as discovered at the instance of the accused under section 27 of the Indian Evidence Act.
95. The court would further observe that despite PW6 turning hostile to the prosecution, the ownership of the TV itself was capable of being proved through other witnesses and such a witness did emerge in the form of the shopkeeper who had sold this TV to the deceased. This witness was PW20 (Gyaneshwar) Manager of Better Deals Electronics, B1, Community Centre, Janakpuri, New Delhi.
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96. PW20 deposed that the invoice regarding the purchase of the LCD of the make Toshiba by Anil Kumar through invoice No. 26543 dated 12.06.2012 for Rs. 11,500/ was Ex. PW20/A. This witness was not cross examined despite opportunity and the invoice is proved as uncontroverted proof of the purchase of a Toshiba LCD TV by deceased Anil Kumar on 12.06.2012.
97. Notably, the particulars of the Toshiba TV mentioned in the invoice are the same as mentioned in the seizure memo and mentioned the model No. 24 PB 1E C12 X 01H0254GAI .
98. Since the exercise of reaching a finding upon any fact in issue is a balance of varying depositions, the holistic understanding which the court is able to reach from the combined deposition of PW4, PW 6 and PW20 is that a Toshiba TV belonging to the deceased, purchased from the shop of PW20, was recovered from the scrap dealer i.e. PW6 in the presence of PW4 and also the police witnesses inter alia the IO (PW27) and SI Jitender (PW26).
99. Lest the discussion at hand be seen only in the context of the principal charge under section 302 IPC, the court would highlight that three other articles of charge inter alia under section 380 IPC, 404 IPC and section 411 IPC were also framed against the accused which related to alleged theft by the accused at the residence of the deceased, misappropriation of his LCD TV, mobile phone, two gold rings and one gold chain as well as allegedly receiving the TV and rings in question as stolen property respectively State V/s Aakil Page 33 of 33 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 Recovery of the mobile phone of the deceased
100. The material witnesses for the recovery of the mobile phone of the deceased were PW4, PW26, PW27 and the two witnesses from the mobile operator company i.e. PW9 and PW10.
101. PW4 had deposed that a mobile belonging to the accused had also been recovered from the possession of the accused. The seizure memo of this recovery was proved by PW4 and the two investigating officers i.e. PW26 and PW27 as Ex. PW4/H. The phone itself, of the make Duke was identified by these witnesses as Ex. P2.
102. The court would observe that since technical evidence in the form of call record details are available of the two mobile phones in question i.e. the mobile phones of the accused and the deceased, the deposition of PW9 and PW10 assumes significance.
103. PW10 was the Nodal Officer from Aircel Limited who had proved the call record details of the said phone of the accused for the period 01.01.2012 to 08.08.2013 as Ex. PW10/A (the court has previously recorded the finding that this mobile phone i.e. 75303607393 was in the name of Wasim (PW12) but being used by the accused).
104. A perusal of the CDR Ex. PW10/A dated 01.08.2013 reveals the above mobile number to have repeatedly been used through the IMEI of the phone mentioned in the seizure memo Ex. PW4/H. The IEMI number mentioned in Ex. PW4/H and Ex. PW10/A was 865442013274390. It is evident that the accused used the mobile State V/s Aakil Page 34 of 34 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 phone with the above IMEI by inserting his own sim card with phone No. 75303607393.
105. When the call record details of the mobile phone of the deceased i.e. Ex. PW9/C, tendered in evidence by the Nodal Officer from Idea Cellular (PW9) are perused, the same IMEI number is recorded against the mobile phone number of the deceased i.e. 9891377420.
106. There is no doubt whatsoever in the determination of the court that the mobile phone of the deceased was used by the accused on 01.08.2013 and subsequently recovered from him as mentioned in the seizure memo Ex. PW4/H. This seizure memo records the same IMEI number as reflected in the call record details Ex. PW9/C and Ex. PW10/A.
107. The recovery of the stolen phone of the deceased from the accused thus stands proved.
108. The court may next record its verdict on the articles of charge in light of the findings on the various facts in issue discussed in the judgment thus far.
Charge under section 302 IPC
109. There being no eye witness to the incident in question, the evidence cited by the prosecution was largely circumstantial. To summarise the grounds on which the prosecution version was contingent, the following three facets of evidence are highlighted.
State V/s Aakil Page 35 of 35FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
(i) Familiarity between the accused and the deceased as well as purported motive with the accused to kill the deceased on account of blackmail suffered by him.
(ii) Purported recovery of the weapon of offence inter alia ustra and steel container from the accused.
(iii) Purported recovery of certain property of the deceased from the/at the behest of the accused inter alia two finger rings, a Toshiba TV and one mobile phone.
110. The findings on the various facts in issue recorded thus far in the judgment may be summarised as under:
(i) The accused and deceased were known to each other and in regular touch with each other.
(ii) The cause of death was the multiple injuries including a fatal injury by way of slashing of the throat as well as a head injury caused by blunt force.
(iii) The ustra and steel container could not be proved to be the weapons of offence.
(iv) A Toshiba TV belonging to the deceased was proved to have been recovered at the instance of the accused.
(v) The recovery of the stolen phone of the deceased from the accused was also proved.State V/s Aakil Page 36 of 36
FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022
111. It is apparent from the above findings that the prosecution has succeeded in proving only the limited facet of the accused having been familiar with the deceased. The second and most crucial component of the allegations inter alia use of the ustra and steel container as weapons of offence remains not proved. While the court has rendered a firm finding that an ustra and a steel container were indeed recovered at the instance of the accused, it has not been established that these were the very articles used to inflict the deadly blows upon the deceased. The cause of death being fatal injuries from slashing of the throat and head injury by blunt force can therefore not be ascribed to the ustra Ex. P5 and the steel container Ex. P3 recovered from the accused.
112. The third category of evidence viz the recovery of stolen articles does stand proved qua two articles i.e. Toshiba TV and mobile phone of the accused. The court has recorded that the two finger rings proved to have been handed over by the accused to PW3 could not be connected to the ownership of the deceased. Thus it is the mobile phone and a Toshiba TV which emerge as having been recovered from/upon information given by the accused.
113. Thus, to distill the findings further, only two incriminating circumstances are available qua the charge under section 302 IPC viz familiarity of the accused with the deceased and recovery of two of the possessions of the deceased from him/upon information given by him.
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114. It is to be unequivocally stated by the court that such limited incrimination is not sufficient to record a finding of murder of the deceased at the hands of the accused. While the phone conversations between the accused and the deceased, the use of the phone of the deceased by the accused and recovery of two articles of the deceased from the accused is indeed a suspicious circumstance, it does not constitute the sterling quality of circumstantial evidence required for recording a finding of guilty against the accused. It is quite the position of the law that circumstantial evidence must be commensurate with no interpretation other than the guilt of the accused and all links in such circumstantial evidence ought to be proved beyond reasonable doubt. However, in the present spectrum of evidence, the circumstances suffer critical omissions/loop holes which operate in favour of the accused. The absence of a last seen account and the lack of forensic evidence to establish the link of the ustra and the steel container with the fatal injuries upon the deceased means that there is no cogent evidence on record to prove that the accused committed the murder of the deceased.
115. The accused is liable to be acquitted of the charge under section 302 IPC.
Charge under sections 380, 404 and 411 IPC
116. Section 380 IPC is predicated on proof of theft in a dwelling house by an accused person. The court would observe that the finding State V/s Aakil Page 38 of 38 FIR No. 345/2013 P.S. Bindapur U/s 302/380/404/411 IPC DOD: 24.03.2022 regarding the recovery of the Toshiba TV and the mobile phone of the deceased from the accused does not constitute evidence of theft. The findings are rather amenable to conviction under section 411 IPC. Since definitive evidence was led by the prosecution to establish both
- the ownership of the deceased over the TV/mobile phone and their recovery from the accused, there is reason enough for the court to record that these two articles were received by the accused with a dishonest intention. Since he was known to the deceased, the recovery of two of the articles of the deceased from his possession can beyond any doubt be held to be indication of his belief that the same were stolen. Although the lack of direct evidence regarding the presence of the accused at the residence of the deceased on the date of incident obviates the possibility of conviction under section 380 IPC, the accused is liable to be held guilty under section 411 IPC.
117. The prosecution could, however, not justify the charge under section 404 IPC as there is no evidence to conclude that the accused knew his acquaintance i.e. victim Anil to be deceased when the two articles in question i.e. the Toshiba TV and mobile phone came to his dishonest possession. Section 404 IPC is reflective of a key ingredient inter alia knowledge in the accused that the property was possessed by a deceased person. Since the prosecution has not been able to prove the murder of the victim at the hands of the accused, he cannot be presumed to have known that the victim was dead either.
118. The accused is liable to be acquitted under section 404 IPC.
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119. Accused Aakil is acquitted of the charge under sections 302/380/404 IPC.
120. Accused Aakil is convicted under section 411 IPC.
Digitally signedVISHAL by VISHAL GOGNE GOGNE Date: 2022.03.26 17:29:00 +0530 Announced in open Court today On 24.03.2022 (Vishal Gogne) Additional Sessions Judge04 Dwarka Courts, SouthWest New Delhi State V/s Aakil Page 40 of 40