Delhi District Court
State vs . on 17 September, 2011
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.269/10
FIR NO. 31/07
U/S 302/34 IPC
PS Tilak Nagar
Unique Case ID No. : 02404R0179152007
State
Vs.
1. Kallu @ Khajla s/o Kadar Hussain
r/o Kasba Maa Ka Darwaja, Etah, UP.
2. Asif Khan s/o Bajit Khan
r/o AjmalJaiEJalau Nagar,
Village and PO Sadar Shahjal, UP.
Date when committed to the court of Sessions :08.05.2007
Date when case reserved for judgment : 12.09.2011
Judgment pronounced on : 17.09.2011
JUDGMENT:
1. The case of the prosecution in brief is that on 19.01.2007, on receipt of DD No.36 of PP Khayala, PS Tilak Nagar, that one person soaked with blood was lying dead at a handcart at DBlock, Main Khayala Road in front of shop No.685 and the said DD was handed over to SI Vijender Singh who along with Ct. Sanjay reached the SC No.269/10 Page 1/22 said spot, who found that one structure of handcart without wheels was lying before the said shop and one person aged about 40 to 45 years was lying dead on the same and the blood was oozing out of his head and on this information, by making his endorsement on the said copy of the DD, the FIR was got registered and the investigation was entrusted to Inspr. Pratap Singh who summoned crime team and photographer at the spot and seized the exhibits from the spot as well as bloodstained dandas and pieces of wood lying at the spot.
2. During investigation, dead body was sent for autopsy to DDU hospital and the same was got conducted and statement of Mohd. Naim and Mohd. Mubin were recorded to the effect that they were residing as tenants at B685, J.J. Colony, Khayala, for about 45 months and were selling the soap and that on 18.01.2007, at about 4 p.m, they had come to their house back after selling the soap and in front of the said tenanted room, one rickshaw puller by the name of Kallu @ Khajla and Asif Khan @ Lambu and the deceased Chaman were residing and deceased was also selling the soap and all the said three used to consume liquor and used to exchange abuses to each other after consuming liquor and on the said day also, said Kallu and Asif Khan were abusing the said Chaman and they (the witnesses) did not pay any heed to the said quarrel as it was a routine affair and they went to sleep and on the following morning at about 6.30 a.m, when they woke up and opened the door, they found the said SC No.269/10 Page 2/22 Chaman was lying in blood soaked condition and near his dead body one danda and one chappal was lying and both the said rickshaw pullers namely Kallu @ Khajla and Asif Khan were found missing.
3. During the investigation, both the said accused were arrested at the pointing out of a secret informer who made their disclosure statements and got recovered their bloodstained shirts from the public dustbins and charge sheet was filed against the accused and subsequent to the filing of the charge sheet, the FSL result was also placed on the record.
4. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 30.10.2007, framed charges against the said two accused u/s 302/34 IPC, to which they pleaded not guilty and claimed trial.
5. The prosecution, in order to prove its case, has produced as many as 19 witnesses, relevant of which have been discussed below.
6. The statements of the accused u/s 313 Cr.PC were recorded wherein they pleaded their innocence and denied the incriminating evidence against them as false and did not prefer to lead any defence evidence.
7. I have heard Ld. APP for the state, Ms. Sadhana Bhatia, Amicus Curie, Advocate for the accused and perused the record.
8. PW1 SI Mahesh Kumar was the draughtsman who prepared the scaled site plan Ex.PW1/A. PW2 Ct. O.P. Rana was the DD writer who proved the DD No.36 as Ex.PW2/A. PW4 SI Anil SC No.269/10 Page 3/22 Kumar was the In charge of the crime team who proved his report as Ex.PW4/A. PW5 HC Rohtash Singh was the duty officer who recorded the FIR Ex.PW5/A. PW8 Ct. Devender Singh was the special messenger who delivered the copies of FIR to the senior officials of the police as well as to the area Magistrate. PW9 HC Madan Singh was the MHC(M) who deposed regarding deposit of case property in the Malkhana and sending the same to FSL. PW10 Mukhtar Ahmed deposed that in the year 2007, he along with one Anis and deceased Chaman were doing the work of selling soap and that Anis was his uncle and the deceased Chaman used to sleep on the footpath of BBlock, Main Road, Khayala and that on 18.01.2007 the said deceased Chaman had gone to sleep after 7.30 p.m and they went to their house. PW11 and PW12 identified the dead body of the deceased. PW14 Ct. Rakesh Kumar was the photographer who took the photographs of the spot as Ex.PW14/A1 to A4 and proved the negatives thereof as Ex.PW14/B1 to B4.
9. PW15 HC Sanjay Kumar deposed that on 19.01.2007, on receipt of DD No.36, he along with SI Vijender Singh reached the said spot where the dead body of the said deceased was found blood soaked, seizure of the exhibits from the spot by the SI who gave him the rukka which he took to the PS for getting the FIR registered and thereafter he came back at the spot with Inspr. Pratap Singh to whom the subsequent investigation was entrusted, seen of the occurrence was photographed, the rough site plan was prepared and SC No.269/10 Page 4/22 dead body was shifted to the mortuary who was identified as Chaman s/o Naksu Khan and seizure of the clothes of the deceased given by the autopsy surgeon. He further deposed that on 21.01.2007, both the accused present in the court were arrested who pointed out the place of occurrence vide memo Ex.PW15/E and Ex.PW15/F and their disclosure statements Ex.PW15/G and Ex.PW15/H were recorded and both the accused led the police to two public dustbins out of which one was situated near bus stop of Bus Route No.830, Khayala Road from where the accused Kallu got recovered a bloodstained shirt and from the second public dustbin situated at Patel Chowk, accused Asif got recovered another bloodstained shirt which were taken into possession after sealing the same vide memos Ex.PW15/J to Ex.PW15/K and that on 05.03.2007, he took 12 parcels and one sample seal from the Malkhana and deposited the same with the FSL and he identified the shirt as Ex.P1 which was recovered at the instance of accused Kallu and shirt as Ex.P2 which was recovered at the instance of accused Asif. In his cross examination, he replied that on 21.01.2007, they left PS at about 10 p.m in a private vehicle but he did not remember its make, registration number and colour of the vehicle or name of the driver. He further answered that all the police officials were in plain clothes and that both the accused were apprehended at Outer Ring Road near Kesho Pur Mandi and all the writing work was done at the spot near bus stop while sitting on the pavement under the SC No.269/10 Page 5/22 street light. He answered that the Outer Ring Road was a thoroughfare but due to winter night, nobody was present at the spot and that no vehicle was stopped for the purpose of joining its passenger in the investigation. He could not tell as to whose disclosure statement, out of the two accused, was recorded first. The distance between public dustbins and place of apprehension of the accused was about 400500 meters and that accused persons themselves went inside the dustbins and got recovered the shirts. He further replied that the shirt was recovered in the light of big torch which the police party was having. He was confronted with his previous statement Ex.PW15/DA where the facts that there were said two dustbins situated at said two places and both the accused got their respective shirts recovered from the said two separate dustbins, was not found recorded. He did not remember the time when they left the places of recovery after completion of writing work. He further answered that all the police officials went inside the dustbin including him, HC Mohinder and Inspr. Pratap Singh.
10. PW16 HC Mahinder Prakash deposed regarding arrest of the accused on 21.01.2007 and their disclosure statements and regarding recovery of the said two shirts of the accused from the said two public dustbins, as deposed by PW15 and he identified both the shirts as Ex.P1 and Ex.P2. However, in his cross examination, PW16 answered that they left the PP Khayala at about 8 or 8.30 p.m on 21.01.2007 on foot and that they all were in uniform and that the SC No.269/10 Page 6/22 distance between place of arrest and PS was near about one kilometer. He further answered that accused tried to flee away after looking at the police. He admitted that place of arrest of accused was a thoroughfare. He answered that he apprehended accused Kallu but he could not tell as to who apprehended the other accused. He replied that disclosure statement of accused Kallu was recorded first and both the accused were apprehended near Kesho Pur depot, Ring Road. He replied that first they went to the dustbin near Bus Stand of route No.830 on foot which is at a distance of 50 steps from the place of occurrence and no sweeper was called to remove the garbage and to search for the clothes of the accused. He replied that the police officials were not having any light or torch with them and that no public person was called at the time of recovery of the shirt. He answered that from the another dustbin the shirt was taken out from the garbage by accused Asif.
11. PW17 SI Vijender Singh is the IO of the case who deposed regarding reaching the spot on 19.01.2007 on receipt of DD No.36 and thereafter he deposed regarding the investigation conducted by him at the spot and he further proved the making of the complaint Ex.PW17/A and giving the same to Ct. Sanjay for the registration of FIR and deposed about lifting of blood sample vide memo Ex.PW17/B, bloodstained soil vide memo Ex.PW17/C, danda vide memo Ex.PW17/D, pieces of wooden danda vide memo Ex.PW17/E, the plastic sheet on which the body was lying vide SC No.269/10 Page 7/22 memo Ex.PW17/F, sleepers vide memo Ex.PW17/G, the bloodstained wooden handle of the handcart vide memo Ex.PW17/H, bloodstained cap vide memo Ex.PW17/J and the handcart without the wheels vide memo Ex.PW17/K and he identified the gauze of blood sample as Ex.P3, bloodstained soil as Ex.P4, one wooden danda having iron nails as Ex.P5, one wooden danda 8 inch in length as Ex.P6, one piece of wooden danda 7 inch in length as Ex.P7, rexin mat as Ex.P8, sleepers as Ex.P9, one wooden plank as Ex.P10, the red colour cap as Ex.P11, the handcart as Ex.P12.
12. PW18 Inspr. Pratap Singh, who was the second IO, deposed regarding the said seizures of the articles from the spot as deposed by PW17 and thereafter he deposed regarding preparation of inquest papers at DDU hospital mortuary and getting the autopsy conducted on the dead body of the deceased and seizure of bloodstained clothes of the deceased given by the autopsy surgeon vide memo Ex.PW18/C and thereafter he deposed regarding the arrest of the accused on 21.01.2007 and recovery of the shirts at the instance of both the accused, as deposed by PW15 and PW16.
13. In his cross examination, PW18 replied that none from the public agreed to join the proceedings at the spot and he further replied that on 21.01.2007, he left the PS at about 7.30 or 8 p.m. and he did not remember as to whether he made any departure entry of the same and he answered that they left the PS in an official vehicle. SC No.269/10 Page 8/22 He further answered that all the police officials were in uniform. He replied that no vehicle was stopped nor the persons in the vehicles were requested to join the raid party. He answered that they surrounded the accused at the bus stand in such a manner not to allow the accused to escape and all the police officials collectively apprehended the accused. He further replied that memos were prepared at his dictation by the members of police staff accompanying him. He could not tell as to which of the disclosure statement was recorded first in point of time. He answered that distance between the place of apprehension of the accused and the first dustbin was about half kilometer. He answered that memo of the recovery of the shirt was prepared while sitting outside the said dustbin. He replied that second dustbin where accused Asif took them, may be at a distance of 150 yards from the said first dustbin.
14. PW19 is the autopsy surgeon who proved the autopsy report as Ex.PW19/A.
15. Coming to the public witnesses, PW3 Raj Kumar deposed that on 18.01.2007, he being the vegetable seller, after purchasing vegetables from Kesho Pur Mandi brought the same at his Tea shop managed by his father where he also used to work but on part time basis and the said shop was in front of H.No.685, BBlock, Main Khayala Road and that one Mukesh was having Burger Handcart in front of his shop and that deceased Chaman was having the work of soap on the platform of his (witness) shop and both the accused SC No.269/10 Page 9/22 present in court were the rickshaw pullers who used to sleep there and the deceased Chaman along with both the accused were in habit of drinking liquor and they used to quarrel among themselves under the influence of liquor and on the said day, at about 11.30 p.m, he reached the Tea shop to keep the vegetables and that the deceased Chaman and both the accused were under the influence of liquor and were quarreling with deceased and that he and Mukesh, the burger seller, left all three of them at the spot quarreling with each other and went to their respective houses and that on the following morning he found Chaman on his Tea Handcart in injured condition with blood all over his body who was murdered and that both the accused were not present at that time.
16. In his cross examination, PW3 replied that they used to open their shops at about 8 or 8.30 a.m and close the same by 7.30 or 8 p.m. He further replied that 10 to 12 persons used to sleep in the night in front of the closed shops and that his house was at a distance of 45 houses away from his Tea shop. He replied that police recorded his statement at Khayala Police Post on 19.01.2007 and that he along with 1012 other persons were taken to the said PP for interrogation and that he used to be called daily for the investigation and thereafter used to be left by the police officials. He answered that he knew the accused prior to the incident as rickshaw pullers but was not knowing their names about which he came to know at the said Police Post from the police officials. He further answered that SC No.269/10 Page 10/22 all the persons including him were allowed to go after 23 days by the police officials. He replied that besides his statement, statement of his father and that of one Mukesh was also recorded by the police.
17. PW6 Jai Prakash deposed that he used to run a tea stall at B 685, J.J. Colony, main Khayala Road for the last 67 years at the time of incident and he used to close his shop at about 7 p.m. and that 2 persons by the name of Kallu and Lambu used to work as rickshaw puller and deceased Chaman used to do the work of selling soaps and all the said three persons used to sleep at a platform during night near his shop and that they also used to consume liquor near his shop and that more than about 2½ years back, when he came at his tea stall in the morning, he saw the dead body of Chaman in a pool of blood lying on a handcart which was without wheels and that accused Kallu and Asif Khan @ Lambu are present in court and that when he reached the spot in the said morning, both the accused were not present at the spot. In his cross examination, he replied that police picked up 78 persons for joining in the investigation and detained in the PS for 45 days and that those persons were allowed by the police for taking their name by the police.
18. PW7 Mohd. Naim deposed that he along with Mohd. Mubin used to sell the soaps on some vehicle after hiring the same and that 23 days prior to the date of incident, he had taken the van bearing registration No.1101 belonging to one Lalaji who had been seen by SC No.269/10 Page 11/22 him in the court on the day of his deposition and who had left the court after his deposition and that he used to drive the said vehicle himself and that he knew accused persons present in court who were rickshaw pullers at the time of incident and deceased Chaman used to sell the soaps and that was why known to him and that both the accused along with deceased Chaman used to sleep near the platform of aforesaid Lalaji and that the platform on which they used to sleep was located near his house in which he used to reside. He further testified that on 18.01.2007 at about 11.15 p.m, he had seen both the accused and deceased in a state of intoxication and they were abusing each other and that he and Mohd. Mubin advised the accused and the deceased not to quarrel and abuse each other and that accused used to consume liquor almost daily and at that time accused Kallu was wearing blue colour shirt but he was not confirmed about the shirt worn by the accused Lambu and the deceased Chaman was wearing white shirt. He further deposed that at the relevant time when he had seen the accused, they were in the state of drunkenness but he did not know the exact wording exchanged by the accused and the deceased but they were quarreling with each other and were abusing and thereafter he and said Mohd. Mubin went to their room and slept and in the morning they had seen that Chaman was lying in a pool of blood on a handcart and both the accused were not present there and many public persons also gathered at the spot and that somebody informed the police SC No.269/10 Page 12/22 which reached the spot. Thereafter Ld. Addl. PP, with the permission of the court, put leading questions to the witness wherein he replied that he did not remember the colour of the shirt of accused Lambu nor the accused threatened the deceased Chaman to kill him or to break his jaw and thereafter he was cross examined on behalf of the State by Ld. APP wherein he denied to have make any statement to the police with regard to the said threat given by the accused to the deceased and the same was confronted to him with his previous statement Ex.PW7/A where it was found so recorded.
19. In his cross examination on behalf of the accused, PW7 replied that he was residing in the aforesaid house on rent about two months prior to the date of occurrence and the said house belonged to one Mohd. Hanif. He further replied that he was called by the police officials during investigation of the case for about 34 days from morning to evening and he used to go around 8 or 9 a.m and come back around 8 or 9 p.m from the PS and that said Mobin also used to go with him and that said Lalaji and his son was also called in the PS for the purpose of investigation and that one person namely Shahid was also called by the police for investigation. He further replied that accused were habitual drunkards but he never saw them drinking liquor. He replied that he had told the IO that he advised the accused and the deceased not to quarrel and abuse each other and he was confronted with his previous statement Ex.PW7/DA where it was not found so recorded.
SC No.269/10 Page 13/22
20. PW13 Mohd. Mubin deposed that in the year 2007 he was residing at H.No.B685, Khayala, Delhi with one boy namely Naim and they were working as seller of soap which they used to take from Mohd. Anis Kamal who was also residing in Khayala and that they used a van for selling the soap and the van was hired by one tea vendor whose tea stall was just opposite his rented house and probably his name was Jai Prakash. He further testified that in the month of January 2007, he along with Naim came back from their work i.e after selling the soap at about 4 p.m and went to their tenanted room and were busy in daily routine work. He further deposed that accused Kallu and Lambu present in court were rickshaw pullers and they used to sleep in the veranda of the said house and that deceased Chaman used to take soap from Mohd. Anil Kamal and used to sell the same and that he also used to sleep on the pavement in veranda with both the accused and that all the three persons used to take liquor together in the night and that it was either 17th or 18th January, 2007 at about 11 or 11.30 p.m both the accused and deceased Chaman were quarreling and abusing each other and that he along with Naim came out from the room and tried to make them understand not to quarrel and let them sleep and that he did not remember the colour of the clothes worn by the accused and the deceased and that thereafter they (the witnesses) went to sleep. He further testified that in the early morning, when they woke up by the public persons of the locality, they saw that Chaman was SC No.269/10 Page 14/22 lying in a pool of blood and both the accused were absconding and that at the spot one danda and chappal were lying and that landlord was informed by them and thereafter police was also informed by someone which came to the spot and his statement was recorded by the police and that main cause of quarrel between deceased and the accused was consuming liquor and thereafter abusing each other without reason.
21. In his cross examination, PW13 replied that police took him and Mohd. Naim to the PS and kept there up to 10.30 p.m and that on the following day also they were called at the PS and they remained there till evening. He further replied that they were living as a tenant in the above said house at Khayala for last one year prior to the incident. He further answered that since both the accused and the deceased used to consume liquor and that was why he did not inform the police or landlord of the house to intervene in the matter. He admitted that Lalaji, the tea vendor Sh. Jai Prakash and his son were also called at the PS for making inquiries and one Shahid was also called at the PS for making inquiries. He answered that he did not see accused consuming liquor in his presence.
22. Admittedly, there is no eye witness of the incident who saw the accused killing the deceased. The case is resting on circumstantial evidence. Needless to repeat the law with regard to circumstantial evidence that prosecution has to establish each and every link in the chain of circumstances independently and beyond SC No.269/10 Page 15/22 reasonable doubt so as to form a complete chain pointing, only and only, towards the guilt of the accused and none else. If any of the link in the chain is missing or the accused is successful in putting a dent on any of the link, the benefit of doubt must be given to the accused.
23. The first circumstance, which the prosecution has tried to put forth against the accused is the "last seen evidence" to the effect that deceased was seen in the company of the accused prior to his death. I have reproduced above the said depositions of the public witnesses who alleged that they saw the deceased in the company of the accused and all the said three persons had consumed liquor. If the deceased had also consumed the liquor, as per case of the prosecution, its traces should have been deposited in his viscera but as per autopsy report Ex.PW19/A, no viscera of the deceased was preserved in order to establish the fact that the deceased had also consumed the liquor, which would have lent some support to the deposition of the said public witnesses who allegedly saw the deceased in the company of the accused after consuming liquor. It is not the case of the prosecution that deceased had passed stool prior to his death so that the remnants of the liquor would not have been established in the chemical analysis of the viscera of the deceased.
24. As per deposition of PW3, PW6, PW7 and PW13, the accused and the deceased used to take liquor and quarrel almost daily and thereafter they used to sleep there. What the said witnesses were SC No.269/10 Page 16/22 deposing was the daily routine of the accused and the deceased which cannot be taken to be a specific evidence towards "last seen evidence" in the sense in which it has been used and understood under the Law of Evidence.
25. PW3 and PW6 nowhere deposed regarding any threat extended to the deceased by the accused after consuming liquor on the day of incident. However, the said threat was allegedly mentioned in the statement given before the police by PW7 but he denied any such statement made to the police and was confronted by the prosecution vide his previous statement Ex.PW7/A where the said threat to the deceased was found recorded. PW7 further claimed in his examination in chief that he advised the accused and the deceased not to quarrel and abuse each other but the said deposition was confronted with his previous statement Ex.PW7/DA where it was not found so recorded. Similarly, the said alleged threat by the accused to the deceased was found missing in the deposition of PW13 also.
26. With regard to consumption of liquor by the accused and the deceased, PW3 and PW6 maintained in general that all the said three persons used to consume liquor near their shop but PW7, in his cross examination, specifically answered that he never saw them drinking liquor and similarly, PW13 also answered that he did not see accused persons consuming liquor in his presence.
27. All the said public witnesses have specifically deposed that SC No.269/10 Page 17/22 they were detained for few days by the police from morning till evening after the day of incident. In the said circumstances, the recording of their statements by the police by way of manipulation or their statements made to the police under coercion cannot be ruled out. What they deposed was the routine affair of the accused and the deceased but no such specific incident had come on the record so as to rely the deceased being seen in the company of the accused as the piece of evidence towards "last seen evidence".
28. Coming to the next circumstantial evidence to the effect that accused were found absconding after the incident, is again not free from suspicion for the said contradictory depositions made by the said public witnesses. More so, a person may be too fearful to run away after looking at the dead body in a pool of blood or it is the person who committed the murder and in order to escape from the legal consequences, he may run away from the spot. Even if I take it as true for the sake of argument only, that accused were absconding after the incident and if there are two views possible with regard to their absconding from the spot after the incident, the view favourable to the accused must be adopted. Thus, the alleged absconding of the accused after the incident coupled with the fact that the said witnesses were detained by the police after the incident create a reasonable doubt about the act of absconding of the accused and prosecution has miserably failed to establish beyond reasonable doubt that the accused were the persons who absconded as they were SC No.269/10 Page 18/22 the culprits and a reasonable doubt remained in view of the deposition of the said public witnesses as to whether the accused absconded due to the fear of their being detained by the police in the manner the other witnesses were detained. Thus, I am of the considered opinion that prosecution has miserably failed to establish the absconding of the accused after the incident as an independent link of the chain.
29. The next circumstantial evidence is the recovery of shirts which the accused were allegedly wearing on the day of incident and which became bloodstained, at their respective instance.
30. It has been contended on behalf of the Ld. Addl. PP that PW7 deposed that accused Kallu was wearing blue colour shirt at the time he was last seen and it is the same colour of which the shirt was got recovered by accused Kallu.
31. The said contention of the Ld. Addl. PP is devoid of any merits because the alleged recovered shirt of blue colour was never put to PW7 for its identification nor the IO of the case, during investigation, got the TIP conducted of the said shirts from PW7 or other witnesses who might have claimed the colour of the shirt worn by the accused Kallu and moreover, all other public witnesses nowhere deposed about the colours of the shirts of the accused persons. Rather, PW7 himself could not give the description of the shirt of the other accused namely Asif Khan.
32. PW15, PW16 and PW18 are the recovery witnesses of the said SC No.269/10 Page 19/22 shirts at the instance of the accused on 21.01.2007 from the said two public dustbins. Their deposition is full of material contradictions and even going to the extent of killing each other. For example, PW15 deposed that they left the PS at about 10 p.m, for PW16 the time was 8 or 8.30 p.m and yet for PW18 the time was 7.30 or 8 p.m. For PW15, all the police officials went in plain clothes whereas for PW16 they were in police uniform. Similarly, the fact as to how the police party left the PS, was deposed in different manner by all the said recovery witnesses. PW15 left the PS in a private vehicle, but PW16 joined the police party and went for the recovery of shirts on foot whereas PW18 took the said police party in the official vehicle which was of the make of Tata 407. Similarly, the manner of apprehending the accused was also deposed in separate manners by all the said three recovery witnesses, as deposed above. No public witness was joined at the time of recovery of the alleged shirts despite admitted availability. For PW15, the accused themselves went inside the public dustbins and got recovered the shirts and the shirts were recovered in the light of big torch which they were having with them (the police party), but PW16 has yet another story to tell that they were not having any light or torch with them. Admittedly, the said two dustbins were in use by the public and were accessible to all and it is highly improbable that the said dustbins were not cleaned between the time of the incident and alleged throwing of the shirts there up to SC No.269/10 Page 20/22 21.01.2007, when the alleged shirts were got recovered. Thus, the prosecution has miserably failed to prove the recovery of the shirts beyond reasonable doubt at the instance of the accused and as such, even the Biological Division report of the FSL Ex.PY does not come to the help of the prosecution which mentions the human blood of "A" group found on the said two shirts and the deceased was also having his blood group as "A". It is further strange to note that in the FSL result Ex.PY, the sample of the blood, wooden plank, rexin mat, cap, piece of cloth, were having blood group "A" but at the same time another piece of wood at Sl.No.5, pair of chappals and even the clothes of the deceased were having no reaction. It is the case of the prosecution that piece of wood and pair of chappals were seized from the spot along with other wooden plank and rexin mat and group "A" human blood was found on the wooden plank and rexin but there was no reaction on other articles although seized at the same time and from the same place. The sample of the blood in the gauze piece was found containing the human blood group "A" which was preserved by the autopsy surgeon but it is again strange that the clothes of the deceased, which were also preserved by the autopsy surgeon and were soaked with blood, as per claim of the witnesses, were having no reaction. If this is the situation, then it is very difficult to swallow as to how the said two shirts Ex.P1 and Ex.P2, which remained in the garbage up to 21.01.2007, were showing the blood group "A" and were not putrefied or were not SC No.269/10 Page 21/22 having any reaction. Thus, the planting of the said shirts as that of the accused and allegedly worn by them at the time of incident cannot be ruled out.
33. From the above discussion, it is clear that the prosecution not only failed to establish every link independently beyond reasonable doubt but even if the same are taken as true, the same are not forming a complete chain pointing towards the guilt of the present accused only. Hence, I am of the considered opinion that accused are entitled to the benefit of doubt and they are accordingly, acquitted of the charges u/s 302/34 IPC. They be set at liberty forthwith, if not wanted in any other case. The file be consigned to the record room.
(Announced in the open court on 17.09.2011) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.269/10 Page 22/22