Delhi District Court
3 For The Whole Day. He Denied That He ... vs State Of Maharashtra 2008(1) C.C on 26 February, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 102/09
State
Vs.
1. Laxman
S/o Sh. Ram Charan Singh
2 Rakesh
S/o Late Sh. Beg Raj
FIR No. 420/02
P.S. Sarai Rohilla
U/S 364A/302/34 IPC
Arguments heard on: 19.12.09, 07.01.10, 11.01.10, 09.02.10 and 22.02.10
Judgment announced on: 26.02.10
JUDGMENT
In the present case, charge was framed by ld. Predecessor on 01.10.03 against accused Laxman and Rakesh in respect of offence U/S 364A read with 34 IPC. It was alleged that on 23.10.02 at about 9:15 PM, in front of Main road, Nimri Village, Shastri Nagar, within the jurisdiction of P.S. Sarai Rohilla, Delhi, both accused in furtherance of their common intention kidnapped a boy namely Varun @ Bunty, 13 years of age from the lawful guardianship of his parents, for ransom. Charge was also framed against both accused for offence U/S 302 read with Section 34 IPC with the allegations that on the aforesaid date and time, both accused in furtherance of their common intention committed murder of the boy namely, Varun @ Bunty. Accused pleaded not guilty to the said charges and claimed trial. 2 2 To prove its case, the prosecution has examined 19 witnesses. They are Neetu @ Neerja (PW-1), Rakesh Kumar (PW-2), Kamal Gupta(PW-
3), Sachin (PW-4), Mani Ram (PW-5), Raju (PW-6), Kuldeep Sharma(PW-7), HC Shri Pal (PW-8), ASI Prem Dutt (PW-9), HC Surender Kumar (PW-10), Constable Amar Singh (PW-11), Constable Praduman Kumar(PW-12), Constable Vishesh Pal(PW-13), Dr. K. Goel (PW-14), Anu Anand(PW-15), Sohan Lal (PW-16), SI Prahlad (PW-17), Inspector Amrit Kumar Verma (PW-
18), and Inspector Balbir Singh(PW-19).
3 Statements of both accused have been recorded wherein both accused have denied the allegations of prosecution. They have submitted that they are innocent. They were lifted from their houses and were falsely implicated in this case. No recovery was effected at their instance. They have further stated that PW Sachin is an interested witness, who has deposed in the court in connivance with the informant as well as the police officials. 4 Accused examined two witnesses in their defence. They are Sanjay Kumar (DW-1) and Sushil Kumar (DW-2).
5 I have heard arguments from the ld. counsel for accused and ld. Addl. PP for State. I have also perused the case file.
6 In the present case, out of 19 witnesses, there is no eye witness of the case to connect the accused with crime. The prosecution case rests upon circumstantial evidence. There are two circumstances against the accused in this case--
1) Deceased was last seen on the motorcycle of accused person.
2) Recovery of handkerchief at the instance of accused. 3 7 "In Arun Bhanudas Pawar V. State of Maharashtra 2008(1) C.C. Cases (SC) 261 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 definite tendency unerringly pointing towards guilt of the accused;
(ii) the circumstances, 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 the 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".
8 The first offence with which both accused have been charged, is U/S 364A IPC, which is reproduced here for ready reference:
"Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign stock or international intergovernmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
9 In the present case, PW-4 Sachin is the material witness. He is stated to have last seen the deceased Varun @ Bunty with accused persons. He has deposed that on 23.12.02 at about 8:30 PM, he was coming from his shop. He saw that Bunty was sitting on the motorcycle of accused Laxman, who is present in the court. He asked Bunty, as to where he 4 (Bunty) was going. Bunty told him that he was going with his uncle for a ride. He (Bunty) asked him to accompany them but he (Sachin) refused to go with them as he had to do lot of homework. He further deposed that he does not know where Bunty and Laxman had gone on motorcycle. After sometime, he heard the noise of parents of Bunty that Bunty was missing. The mother of Bunty asked him as to where Bunty was. He (Sachin) told her that Bunty told him that he was going with his uncle Laxman. Next day, police enquired from him about Bunty. After 3-4 days, he came to know that Bunty has been murdered.
10 In cross-examination by ld. counsel for accused Laxman, PW-4 has deposed that his statement was recorded only once by the police. Parents of Laxman did not come to his house with police. He (PW-4) saw Bunty alone sitting on the motorcycle. He did not see Bunty sitting with Laxman on the motorcycle.
11 Since PW-4 Sachin did not mention the name of accused Rakesh, in his examination in court on 14.12.04, ld. Addl. PP moved an application dated 09.02.09 U/S 311 CrPC to re-summon PW-4 for the purpose of confronting him with his statement U/S 161 CrPC recorded by investigating officer on 19.01.03. As the cross-examination of PW-4 on behalf of State qua his statement U/S 161 CrPC was necessary for just decision of case, he (PW-4) was ordered to be recalled by ld. Predecessor vide order dated 17.02.09. 12 In cross-examination by ld. Addl. PP, PW-4 has deposed that he had seen Varun @ Bunty on the motorcycle of Laxman and both accused Laxman and Rakesh were sitting on that motorcycle. Both accused are 5 present in the court. He had stated to police that accused Laxman, uncle of Bunty, had taken him on motorcycle from a narrow lane. He has also stated to police that accused Laxman returned after sometime but Varun did not. He has further deposed that he did not state all these facts earlier as the same were not asked and he forgot the dates.
13 In cross-examination by ld. counsel for accused Rakesh, PW-4 deposed that police had recorded his statement twice. One was recorded on 19.01.03 but the date of other statement he did not remember. He denied that ld. Addl. PP told him that he had to make above statement in the court. He further denied that ld. Addl. PP told him that if he did not give incriminating statement, then action could be taken against him. He denied that he deposed against accused in view of pressure from ld. Addl. PP. He admitted that Varun was his friend. He did not tell his parents or anyone else that they should call police as he had seen accused taking away Varun @ Bunty. He visited police station prior to 19.01.03. He does not remember if SHO recorded his statement on that day. He denied that he (PW-4), Bunty and Saleem used to harass the daughter of Hunny Gas Wala. He does not remember if police got removed his clothes on 1.11.02. He cannot say if there were bruises on his body. He does not remember if his father or his relative had gone to P.S and brought him home. He does not know if police made him to sit in the P.S on 01.11.02 throughout the day as police had apprehension that he (PW-4) was involved in the murder of Varun @ Bunty. He denied that on 23.10.02 he did not see accused Rakesh on the motorcycle with Varun @ Bunty.
614 In cross-examination by ld. counsel for accused Laxman, PW-4 has deposed that on 14.12.04, he made statement in the court and stated the facts, which he remembered. The police had called him on 01.11.03 in the P.S for enquiry. He does not remember if he was made to sit in the P.S on 01.11.03 for the whole day. He denied that he connived with the complainant and made motivated statement to implicate accused. He denied that police suspected his role in the murder or that on 23.10.02 he did not see accused persons with deceased on motorcycle. He deposed that he knows the consequences of making a wrong statement. He denied that his statement which was recorded on 24.02.09 was a tutored one.
15 In Gulshan V. State 2005(2) JCC 13 Hon'ble Delhi High Court has allowed the appeal while giving benefit of doubt to the appellant and set aside the conviction of sentence awarded by the ld. trial court. In that case, the appellant was charged with having committed the murder of one minor. There was no eye witness to the crime and the case rested upon circumstantial evidence. One of the circumstances against the appellant was that deceased Parvez was last seen by PW-3 namely Kabir with the appellant. In that case, PW-3 Kabir had told the mother and grandmother of deceased Parvez that he had seen the deceased going on a rickshaw towards Brahmpuri near pulia on the relevant date alongwith appellant. In other words, it was in the knowledge of the mother and grandmother of the deceased that appellant/accused had taken the deceased with him in a rickshaw as told to them by PW-3 Kabir but that fact was not mentioned by the mother of deceased to the police while lodging the missing report.
It was held by the Hon'ble High Court that in the natural and ordinary course of events, the mother of the deceased and the grandmother would certainly have disclosed the factum of the child having been last seen with the appellant/accused. This raises a doubt 7 on the testimony of PW-3 with regard to having last seen the deceased with the appellant/deceased.
In Mohd. Aizaz V. State 2007 (2) JCC 1142 Hon'ble Delhi High Court has also allowed the criminal appeal while setting aside the judgment of conviction dated 20.11.2000 and order on sentence dated 21.11.2000 passed by ld. Addl. Sessions Judge. The Hon'ble High Court has held that it would be highly dangerous to convict the appellant under Section 302 IPC for the murder of Kalu on the basis of deposition and material referred to. In that case also, deceased was last seen in the company of appellant and the dead body of deceased was recovered at the instance of the appellant. In that case, father of the deceased namely, Lal Chand, who made the report of missing of his child did not state the fact that the child was last seen in the company of the appellant. On the next day of the missing report, the FIR was recorded. On that day also, the fact that deceased was last seen in the company of appellant was also not brought to the forefront by the father of deceased. The Hon'ble High Court found the inconsistency in the deposition of witness regarding arrest and disclosure. The court came to the conclusion that it was highly dangerous to convict the appellant on the basis of last seen evidence and in the lack of material evidence. 16 In the present case, PW-4 Sachin has last seen the deceased Varun @ Bunty in the company of accused. PW-4 has deposed that mother of Varun @ Bunty asked him as to where Bunty was and he (PW-4) told her that he (deceased Varun) was going with his uncle Laxman. However, PW-1, who is the mother of deceased Varun, has deposed in her examination-in-chief recorded on 17.03.04 that Sachin had told her that Varun had gone with Laxman but in cross-examination by ld. counsel for accused Laxman, PW-1 has deposed that she (PW-1) did not talk to Sachin on 23/24.10.02 nor her husband talked to him. They (PW-1 and her husband) never had a talk with 8 Sachin regarding Varun. It is worth noting that PW-4 Sachin has initially been examined in this case on 14.12.04, wherein he deposed that he had seen Bunty on the motorcycle of Laxman and he told the same fact to the mother of Bunty but in cross-examination by ld. counsel for accused Laxman, PW-4 has deposed that Bunty alone was sitting on the motorcycle. He did not see Bunty sitting with Laxman on the motorcycle. It is further worth noting that after a gap of five years, this witness has been recalled by ld. Addl. PP for State to confront him with his statement U/S 164 CrPC recorded by the I.O during the investigation on 19.01.03, wherein he has deposed that he had stated to police that on 23.10.02 at about 8/8:30 PM he had seen Varun on the motorcycle of accused Laxman. He has further stated to police that when public gathered he had told them that Varun @ Bunty had gone with his uncle accused Laxman and accused Rakesh for strolling. He further deposed that he did not state these facts ( i.e. that the deceased Varun was on the motorcycle of accused Laxman and Rakesh) earlier before the court as they were not asked from him. He had forgotten the dates. I am of the considered view that PW-4 Sachin is not trustworthy and reliable as he has been able to remember the fact that deceased Varun was on the motorcycle of accused Laxman and Rakesh on the relevant date after a gap of five years but the same facts could not be remembered by him when his initial statement was recorded on 14.12.04. In his cross-examination by ld. counsel for accused Laxman conducted on 04.03.09, he deposed that on 14.12.04 he made statement in the court and stated the facts, which he remembered. It is worth noting that in the present case, it was in the knowledge of PW-17 SI Prahlad and PW-18 Inspector Amrit Kumar Verma that deceased was in the company 9 of accused Laxman but they did not raise any suspicion on accused Laxman and did not record the statement of PW-4. It was only on 19.01.03 that the statement of PW-4 Sachin was recorded by the last I.O i.e. PW-19 Inspector Balbir Singh. In view of evidence of PW-4, I am of the considered view that the possibility of tutoring PW-4 cannot be ruled out and the testimony of PW-4 does not seem to be cogent and reliable one.
17 It is worth noting that in this case, PW-2 has deposed that on 23.10.02 at about 10:55 PM he received a telephone call at his house from one Ramesh Tyagi allegedly speaking from Hissar that Bunty was with him. The person on telephone told him (PW-2) that he would telephone him again at about 5:00 AM. He (PW-2) wanted to ask him as to who he was but he (the person on telephone) disconnected the phone. PW-2 has further deposed that he alongwith his relative went to lodge the missing report of his son and about the telephone call received by him from Ramesh Tyagi from Hissar. 18 PW-17 SI Prahlad, who is the initial I.O of the case, has deposed that on 23.10.02 at about 10:30 PM a DD No. 26A was lodged by Rakesh Kumar i.e. the father of the boy namely Varun @ Bunty with the duty officer regarding missing of his son, upon which he flashed a wireless message on all India basis, besides all over Delhi. In other words, as per the testimony of PW-17, DD No. 26A was lodged by PW-2 at P.S. Sarai Rohilla at about 10:30 PM on 23.10.02. It is worth noting that DD No. 26A is the important piece of evidence but that has not been proved on record by the prosecution and no explanation has been furnished for not proving the DD No. 26A on record. It is further worth noting that as per the testimony of PW-2, the telephone call has been received by him at about 10:55 PM on 23.10.02 but as per the testimony 10 of PW-17, the DD No. 26A has been lodged at about 10:30 PM on 23.10.02. In other words, DD No. 26A has been lodged by PW-2 before receiving the telephone call from Ramesh Tyagi.
19 In this case, PW-2 has further deposed that when he went to lodge the missing report of his son alongwith neighbours and relative, his statement was recorded by the police, which is Ex. PW2/A. After lodging the report, he returned to his house. In the statement Ex. PW2/A also, the fact that deceased Varun @ Bunty was last seen by PW-4 Sachin in the company of accused has not been mentioned. In the statement, it is simply recorded that his son Varun @ Bunty had gone outside the house for playing and did not return back.
20 Besides this, from the testimonies of PWs, it is not clear as to what clothes the deceased Varun @ Bunty was wearing at the time of his death. PW-1 Smt. Neetu @ Neerja, who is the mother of deceased Varun, had deposed that her son was wearing black colour pant and printed shirt of yellow and black colour. PW-17 SI Prahlad, the initial I.O has deposed that deceased was wearing knicker-shorts and shirt. But PW-18 Inspector Amrit Kumar Verma, the second I.O of the case, has deposed that the deceased boy was wearing a check-shirt and pant. All these facts cast a doubt upon the prosecution story and the possibility of changing of the clothes by deceased, after the company of accused, cannot be ruled out.
21 So far as, the question of recovery of handkerchief at the instance of accused is concerned, I am of the considered view that prosecution has not been able to prove the circumstance against accused sufficiently or beyond reasonable doubt.
1122 PW-8 HC Shri Pal has deposed that on 29.01.03 he went to Nimri Colony alongwith Inspector Balbir Singh, HC Surender, Constable Kuldeep and Constable Shailender for the purpose of investigation of this case. They had gone in a private vehicle being a maruti car. I.O was driving the vehicle. He (PW-8) does not remember whether accused was brought to the police station in the same car or by any other conveyance. On the other hand, PW-19 Inspector Balbir Singh has deposed that they had taken a tempo traveller, a govt. vehicle while investigating the case on 29.01.03. From the testimony of PW-8 and PW-19, it is not clear as to which of the vehicle was used by the members of investigating team on 29.01.03 at the time of arrest of accused Laxman and Rakesh i.e. whether it was a maruti car or a govt. vehicle/tempo traveller.
23 Further, the testimony of PWs is not consistent on the point of arrest of accused Rakesh. PW-8 Shri Pal has deposed that on 29.01.03 he alongwith Inspector Balbir Singh, HC Surender, Constable Kuldeep and Constable Shailender went to Nimri colony, where accused Laxman was apprehended by them. He was interrogated by Inspector Balbir Singh, wherein he made a disclosure statement Ex. PW8/A. In disclosure statement, he (accused Laxman) named accused Rakesh Kumar in the commission of crime. Accused Rakesh was apprehended from his house and he was also interrogated. He made disclosure statement Ex. PW8/B. But, PW-19 Inspector Balbir Singh has deposed that on 29.01.03 he reached Shastri Nagar area. When they reached near the house of accused Laxman, he was present there and joined the investigation. During investigation, 12 accused Laxman made disclosure statement Ex. PW8/A and called accused Rakesh Kumar, who made disclosure statement Ex. PW8/B. In other words, as per the testimony of PW-19, the team consisting of Inspector Balbir Singh, HC Surender, HC Shri Pal,Constable Kuldeep and Constable Shailender did not go to the house of accused Rakesh and he was called by him in pursuance to the disclosure statement of accused Laxman. 24 In this case, PW-8 HC Shri pal has deposed that after arrest, both accused Laxman and Rakesh led the police party to ganda nala and got recovered handkerchief from the bushes near ganda nala. The said handkerchief was converted into sealed parcel and sealed with the seal of BS. The handkerchief was taken into possession vide memo Ex. PW8/C. However, the disclosure statement of accused Laxman Ex. PW8/A and disclosure statement of accused Rakesh Ex. PW8/B show that the handkerchief was thrown by them in the ganda nala.
25 Besides this, PW-10 HC Surender Kumar has deposed that both accused persons present in the court, pointed out towards the bushes where handkerchief was thrown. Both of them identified the place. Accused Rakesh Kumar took out the handkerchief and produced the same before the police party, which was taken into possession vide memo Ex. PW8/C. But, in cross-examination by ld. counsel for accused Laxman, PW-10 has deposed that he has stated in his statement Ex. PW10/A that handkerchief was recovered from the bushes. However, a perusal of statement Ex. PW10/DA shows that accused Rakesh got recovered an old dirty handkerchief from ganda nala, Bharat Nagar.
1326 Besides this, PW-12 Constable Praduman Kumar, who had taken the photographs Ex. PW12/6 to Ex. PW12/9 on the intervening night of 26/27.10.02 on the directions of I.O, has deposed in his cross-examination by ld. counsel for accused Rakesh that he cannot say whether handkerchief and clothes were lifted from the spot before his taking of photographs or not. He has further stated that the handkerchief was there as something looking like handkerchief is visible in the photographs. In the present case, PW-8 HC Shri Pal admitted that no public witness had been asked to join the proceedings at the time of recovery of handkerchief by the I.O. All these facts show that the testimony of PWs regarding recovery of handkerchief at the instance of accused is not reliable. It is not clear whether handkerchief was recovered from the bushes or from the ganda nala or it was recovered from the spot itself.
27 It is worth noting that PW-8 has deposed in cross-examination by ld. counsel for accused Rakesh that I.O joined one public person i.e. the mother of deceased. But in cross-examination by ld. counsel for accused Laxman, PW-8 has deposed that no family member of deceased had been called by the I.O. at the time of arrest of accused Laxman. It is further worth noting that PW- 10 HC Surender Kumar, who was with the I.O Balbir Singh on 29.01.03 has also deposed that the house of both accused are in thickly populated area. No person from neighbourhood of accused Laxman was called by the I.O. It would not be out of place to mention that the house of complainant Rakesh is situated nearby the house of accused Laxman.
28 Further, in this case, as per the testimony of PW-8 HC Shri Pal, accused Rakesh and Laxman were arrested vide memo Ex. PW8/H and Ex. 14 PW8/J respectively. A perusal of arrest memos Ex. PW8/H and Ex. PW8/J shows that they (the arrest memos) do not reflect the date, time and place of arrest and this fact has been admitted by PW-8 in his cross-examination by ld. counsel for accused Laxman that in the arrest memo Ex. PW8/J, the columns of date, time and place of arrest have been left blank. All these facts cast a doubt upon the prosecution story regarding the arrest of accused by PW-19 Inspector Balbir Singh.
29 In the present case, prosecution has failed to prove the motive behind the murder. As per the prosecution story, the motive in kidnapping and murder of deceased Varun @ Bunty is the illicit relations between the mother of deceased Varun and accused Laxman. In this case, Smt. Neetu @ Neeraja, the mother of deceased boy has been examined as PW-1. She has deposed that police came to her but never recorded her statement. She denied that the affair between her and accused Laxman developed in a marriage at Bulandshahar, where they had gone to attend the same. She has deposed that when she came to know that Ex. PW1/A has been recorded by the I.O wrongly, she filed a complaint against the I.O. She denied that on 20.10.02 she was present with accused Laxman on the top floor around 11:00 PM. She further denied that on that day, her son Varun had seen her and accused Laxman in an objectionable position and for that reason, accused Laxman had killed her son. She has deposed that she lodged a complaint to Commissioner of Police and Deputy Commissioner of Police for initiating legal action against Inspector Balbir Singh for fabricating false evidence and for making false imputations to harm her reputation.
1530 It is worth noting that PW-2, who is the husband of PW-1, has deposed that he, his wife and his father met Inspector Balbir Singh on 22.01.03. Their statement was not recorded by police on that day. The police simply enquired from them about the case. He has further deposed that the police got their signatures on 3-4 papers on 28.01.03 at P.S. Roop Nagar. He was not aware what was written on those papers. Police did not tell them what was written on those papers.
31 In this case, as per the testimony of PW-2 Rakesh (father of deceased Varun) on 25.10.02 at about 1:30 PM he had received telephone call at his house from an unknown person and the voice appeared to be of the same person who had telephoned him earlier and asked him to arrange Rs. Twenty Five Lakhs if he wanted to save his son. He recorded that call in a cassette. He has further deposed that at about 2:30 PM SI Prahlad Singh, his elder brother, Yogesh Kumar and Constable Jagbir came to his shop alongwith list of telephone numbers. It was revealed that telephone for ransom had come from Shashtri Nagar itself. At about 8:00 PM SI Prahlad Singh and some other police officials came to our house alongwith SHO and ACP and he (PW-2) made them to listen the cassette which was recorded by him. He (PW-2) was asked to identify the voice of the caller to whom he talked but PW-2 could not identify the voice. Later on, DCP was also made to listen that cassette. PW-2 handed over the said cassette to the police. The cassette was sealed and taken into possession vide memo Ex. PW2/B. In other words, PW-2 handed over the cassette on 25.10.02 at about 8:00 PM when police officials came to his residence and he made them to listen the said cassette. But PW-18 Inspector Amrit Kumar Verma has deposed that on 16 23.12.02, Rakesh Garg handed over him an audio cassette wherein ransom call was recorded. He put the said cassette in a parcel and sealed the same with the seal of AKV. Cassette was seized vide memo Ex. PW2/B. It is worth noting that PW-18 has deposed that prior to 23.12.02 he had not seen the cassette Ex. P-1 but at the same time, he (PW-18) has admitted that on 21.12.02 many persons were made to hear the voice in cassette but no one could confirm the voice contained in the cassette. It is further worth noting that PW-18 has further admitted that similar like cassettes are available in the market. A perusal of seizure memo of cassette Ex. PW2/B shows that the cassette Ex. P-1 has been handed over to PW-18 Inspector Amrit Kumar Verma by PW-2 Rakesh Garg on 23.12.02 and not on 25.10.02. 32 Further, it is not clear as to how much ransom amount was demanded from the father of deceased for release of his son. As per the testimony of PW-2 Rakesh Kumar, Rs. 25 Lakhs was demanded as he was asked to make arrangement of Rs. 25 Lakhs if he wanted to save his son. But as per the testimony of PW-17 SI Prahlad on 25.10.02 complainant received a telephone call at his landline phone, whereby ransom of Rs. Five Lakhs was made.
33 Further in the present case, during pendency of trial, an application under Section 73 of Indian Evidence Act was moved by ld. Addl. PP for comparison of voice of accused with the voice already recorded in cassette Ex. P-1. The said application was allowed by the ld. Predecessor on 08.12.07. Ld. Predecessor vide its order dated 11.01.08 directed the SHO to take the voice sample of both accused separately to establish their identity so as to find out as to which of the accused made the ransom call. However, the CFSL 17 report could not be prepared as specimen voice of accused Rakesh was very faint and feeble due to poor recording. Hence, Ld. Predecessor allowed the taking of fresh voice sample of accused Rakesh for sending the same to CFSL vide order dated 24.03.08. The CFSL report was prepared and copy of the report was supplied to ld. counsel for accused on 12.05.08. Since the duplicate cassette of the sample voice alongwith translation was demanded by ld. counsel for accused, three duplicate copies of cassettes i.e. the original, sample voice of accused Rakesh and sample voice of accused Laxman were handed over to ld. counsel for accused Rakesh alongwith copy of transcript on 10.07.08. It is worth noting that as per the CFSL report Ex. PW19/D, the voice in the original cassette was the probable voice of accused Rakesh when it was compared with his specimen voice. In other words, as per the FSL result Ex. PW19/D, it was not certain that accused Rajesh had made the telephone call for ransom as it was only the probable voice of accused Rakesh.
34 In view of above evidence on record, I am of the considered view that circumstances from which inference of guilt is sought to be withdrawn by the prosecution are not cogently and firmly established in this case. The circumstances are not of a definite character and are not pointing towards the guilt of the accused. More over, the circumstances taken cumulatively are not forming the chain so complete so that there is no escape from the conclusion that within all human probability the crime was committed by accused Laxman and Rakesh and none else. The circumstantial evidence in the case is not complete and is capable of explanation of any other hypothesis than that of the guilt of the accused. In other words, the evidence produced by the 18 prosecution is not consistent with the guilt of accused. Accordingly, I am of the considered view that prosecution has miserably failed to prove its case beyond reasonable doubt against accused Laxman and Rakesh that on 23.10.02 at about 9:15 PM, both accused kidnapped the boy Varun @ Bunty in furtherance of their common intention from Nimri Colony, Shashtri Nagar for ransom and thereafter, committed his murder. Accordingly, accused Laxman and Rakesh are acquitted of offences, they were charged with. 35 In the present case, both accused Laxman and Rakesh are in J.C. They be released immediately if they are not wanted in any other case.
File be consigned to Record Room.
Announced in the open court today on 26.02.10.
(Smt. Bimla Kumari) Additional Sessions Judge(North) Tis Hazari Courts, Delhi.