Delhi District Court
State vs . : 1) Himanshu @ Tinna on 4 August, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 544/17
FIR No. : 217/17
U/s : 302/120B/34 IPC
P.S. : Bawana
State Vs. : 1) Himanshu @ Tinna
S/o Late Sh. Rakesh
R/o H.No.50-51, Ishwar Colony,
Bawana, Delhi.
2) Mahesh @ Kala
S/o Sh. Sunder Lal
R/o H.No.338, Ishwar Colony,
Bawana, Delhi.
3) Anuj @ Chuja
S/o Late Sh. Rishi Prakash
R/o H.No.375, Ishwar Colony,
Bawana, Delhi.
Offence complained of: 302/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of committal : 15.09.2017
Date of Judgment : 04.08.2018
JUDGMENT
1. On 6.12 a.m. information was received from Control Room in PS Bawana that on the red light from Bawana to Sultan Pur near farm house in the filed a dead body is lying. A bike is also lying nearby. DD No. 10B was recorded on this information. SI Puneet alongwith HC Jasmeet reached the spot and found the dead body of a boy aged about 20 years wearing blue colour St. Vs. Himanshu @ Tinna etc SC No:544/17 : 1 :
jeans, white shirt, red belt and one mala in the neck. There was a chappal in the right foot and the chappal of left foot was lying nearby. One motorcycle bearing No. HR 10L 4405 was also lying nearby. The dead body was identified as of Amit S/o Karambir. Near the dead body three wooden bittas were also lying having blood stains. Satbir uncle of deceased also reached the spot and identified the dead body as of his nephew Amit. During the investigation Satbir told that his nephew Amit while leaving the house on 18.05.2017 at about 10.00p.m. on motorcycle No. HR 10L 4405 told him, on his asking, that he is going to meet Ajay Dada. When Amit did not return for quite some time he made call on mobile phone No. 7834986468 from his mobile No. 9871156952 but Amit did not pick up the phone. Thereafter, he went to sleep. During the investigation, it was revealed that Ajay @ Dada is absconding and his companion Himanshu, Anuj and Mahesh were also not found at their respective houses. On 23.05.2017, they were apprehended on secret information. Call details recorded were collected. Ajay @ Dada was found to be juvenile. Charge sheet was filed against him before Juvenile Justice Board. After completion of investigation charge sheet against accused Himanshu @ Tina, Mahesh @ Kala and Anuj @ Chuja was filed before Ld. Metropolitan Magistrate. Ld. Metropolitan Magistrate after complying with the provisions of Section 208 Cr.P.C. committed the case to Sessions Court as the offence punishable U/s 302 IPC is exclusively triable by the St. Vs. Himanshu @ Tinna etc SC No:544/17 : 2 :
Sessions Court. All the three accused were charged for the offences punishable U/s 120B IPC and 302 read with Section 120B IPC. The accused persons pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
2. Ct. Anil was examined as PW1. He deposed that on 07.06.2017, on the direction of SHO, he received exhibits from the MHC(M) vide RC No. 144/21/17 for depositing the same in FSL. He deposited the same in FSL and obtained acknowledgment. He returned to the PS and handed over the copy of RC and acknowledgment to MHC(M).
3. During cross examination by the defence, he stated that he collected the exhibits from MHC(M) at about 9.00/9.30a.m. He did not sign in register no. 19 while receiving exhibits. He denied the suggestions that entries in register no. 19 and 21 are false and fabricated. He denied the suggestion that case property was tempered.
4. Ct. Naveen was examined as PW2. He prepared the scaled site plan of the scene of crime at the instance of SI Puneet and proved the same as Ex.PW2/A.
5. During cross examination, he stated that he left his office at about 11.00a.m. He reached the spot on his motorcycle. He denied the suggestion that he did not visit the spot on 07.06.2017 or prepared the site plan without visiting the scene of crime.
6. Ct. Vishav Dev was examined as PW3. He deposed that on 19.05.2017, at about 9.30a.m. Duty Officer handed over to him St. Vs. Himanshu @ Tinna etc SC No:544/17 : 3 :
the copy of FIR for delivering to the Area Magistrate and Senior Police Officials. He left the police station on motorcycle bearing No. DL 1SY 3738 and delivered the copies of FIR to Senior Police Officials and the Area Magistrate. Nothing material came on record during cross examination of witness to discredit him.
7. ASI Devender Kumar was examined as PW4. He was working as MHC(M). He proved the entries in register No. 19 as ExPW4/A to EXPW4/C. He sent the exhibits to FSL and proved the entries in register No. 21 as EXPW4/D, EX PW4/G. The Exhibits were also sent to BSA hospital vide RC EXPW4/F. The acknowledgements received from FSL are proved as EX PW4/E and EXPW4/H. The exhibits were not tempered with till the same remained in his custody.
8. During cross-examination by the defence he denied the suggestion that false and fabricated enteries were made at the instance of IO or that the case property was tempered.
9. Sh. Susheel Kumar was examined as PW5. He deposed that he was the registered owner of motorcycle No. HR 10L 4405 and sold the same to his nephew/Bhanja Amit s/o Karambir, r/o vill. Sultanpur Dabas and also handed over the documents. The testimonty of the witness remained unchallenged and uncontroverted.
10. Ct.Rishiraj was examined as PW6. On 19.05.2017 he was working as DD writer. On that day at 06.12 am he received information from control room through telephone that one dead St. Vs. Himanshu @ Tinna etc SC No:544/17 : 4 :
body is lying in the field, on the road going from Bawan to Sultanpur in front of Farm House and one bike was also lying in the said field near the dead body. He recorded DD No. 10 B and telephonically informed SI Puneet, ATO and SHO. He proved the copy of DD as EX PW6/A.
11. During cross-examination he denied the suggestion that DD is antetimed and antedated.
12. HC Surender was examined as PW7. He proved the record that accused Himanshu @ Tinna was involved in two criminal cases registered at PS Bawana and Crime-branch vide FIR No.238/16 and 79/16 of dated 20-05-17 and 24-05-17 u/s 307/34 IPC r.w. 25/27 Arms Act and 25 Arms Act respectively. He proved the list of cases against the accused Himanshu as Ex.PW7/A. He also proved the copy of previous criminal cases against the accused as Ex.PW7/B. The testimony of the witness has gone unchallenged and uncontroverted.
13. Dr.Mukesh Kumar was examined as PW8. He along with Dr. Vijay Dhankar conducted the post mortem on the dead body of deceased Amit son of Karambir on 20.05 2017. He proved the post-mortem as Ex.PW-8/A. The cause of death was due to combine effect of cranio-cerebral damage and hemorrhagic shock consequent to injury to the head. All injuries were fresh, ante mortem in nature. All injuries were likely to have been caused by elongated blunt object like lathi, danda, rod etc. Injury no.1 to 6 were sufficient to cause death in ordinary course of nature. After St. Vs. Himanshu @ Tinna etc SC No:544/17 : 5 :
post mortem, sealed blood on gauze, clothes and sample seal of the department were handed over to the police personal.
14. He also deposed that on 26.09.17 three sealed parcels for subsequent opinion. After examining the sticks and the post- mortem report Dr.Vijay Dhankar opined that the injuries as mentioned in the PM report can be caused by the weapon "wooden sticks" examined. After examining the weapons the same were sealed, signed and preserved and handed over to the police personal. The subsequent opinion dt.26.09.17 is proved as Ex.PW-8/B.
15. During cross-examination he denied the suggestion that they gave the PM report without examining the dead body on the asking of the IO.
16. Sh. Ashwani Kumar was examined as PW9. He is the registered owner of the Honda City car no.DL4CAB 1442. He got released the vehicle on superdari. He identified the photograph of the car as Ex.PW-9/A. He proved the punchnama as Ex.PW-9/B. He proved the vehicle as Ex.PW-9/Article-1.
17. He further deposed that accused Anuj @ Chuja is his nephew. He correctly identified the accused. About 5 months ago on date 18, his nephew Anuj (accused) left the house for purchasing medicine from Narela. He made a call to Anuj in the noon hours and Anuj informed him that there is a rush/crowd at the shop of medicine, therefore, he (Anuj) could not reach. At about 5 PM on the same day, he again made a call on the mobile St. Vs. Himanshu @ Tinna etc SC No:544/17 : 6 :
of his nephew/accused and chided him as to why he has not returned home. Thereafter accused switched off his mobile phone. His mobile no. is 9818126935. He along with his family members searched for accused Anuj but he was not found any where. They went to the house of the friends of his nephew namely Himanshu, Mukesh and Kala but his nephew was not found any where.
18. In the said month on date 22, police official of PS Bawana reached at his house and inquired about his nephew Anuj. He informed the police that he is also searching his nephew. On date 23 at about 12 noon, police asked him to reach PS with his vehicle City Honda. He reached to the PS with City Honda vehicle. The police official kept his Honda City vehicle and told that vehicle would be released after inquiry. Later on he got released his vehicle from the court. He also correctly identified the accused. On that day when they went for the search of his nephew at the house of Himanshu he was also not present at his house.
19. With the permission of the court Ld. APP put a leading question that his nephew Anuj took his Hinda City car in the morning hours on 18.05.17 and he did not come to the home for many days?
20. The witness replied as under
Ans. It is correct that my nephew Anuj left home on 18.05.17 for taking medicine and I don't know by what mode of St. Vs. Himanshu @ Tinna etc SC No:544/17 : 7 :
transportation he left the house for purchasing medicine. My car was with me at my residence.
21. He denied the suggestion that accused Anuj took the car on 18.05.17. The testimony of the witness has gone unchallenged and uncotroverted.
22. SI Ummed Singh was examined as PW10. He was working as Nodal officer at CPCR, PHQ. On 29.05.17 he generated PCR form no.19 MAY 171120055 of dt.19.05.17, landing time 6:01:36 and dispatch time 06.05.04 on extn.no.112 from mobile no.9650236262 Ex.PW-10/A. He proved the certificate under Sec.65 B of Evidence Act as Ex.Pw-10/B.
23. During cross-examination he denied the suggestion that he has manipulated the contents of PCR form at the instance of the IO or that he has produced false certificate under Sec.65 B of Evidence Act on the asking of the IO.
24. Sh. Ramesh Dalal was examined as PW11. He brought the record of cause list of 16.05.2017 of JJB-I, Kingsway Camp, Delhi and proved the same as Ex.PW-11/A. The testimony of the witness has gone unchallenged and uncontroverted.
25. Sh. Rajender Singh was examined as PW 12. He deposed that deceased Amit son Sh. Karambir was his relative. He used to make a call on the mobile of Amit from his mobile No.9278692390 on the mobile phone of Amit having last digits No........6468. in response to a leading question put by Ld. APP he admitted that the initial number of Amit was 7834.
St. Vs. Himanshu @ Tinna etc SC No:544/17 : 8 :
26. During cross-examination by the defence he denied the suggestion that Amit was not using the mobile phone number having aforesaid digits or that he is deposing falsely being the relative of Amit at the instance of his family members in connivance with the police to create false evidence against the accused.
27. HC Virender Singh was examined as PW13. He deposed that on 19.05.2017 on receipt of a call he along with SI Jagdeep and other staff went to Sultan Pur Dabas to Chor Piao right side of road. SI Puneet and other police officials of PS: Bawana met them there. He took 16 photographs ExPW13/A1 to A16 of the scene of crime from different angles. The negatives of the same are Ex.PW13/B.
28. During cross-examination by the defence he deposed that they left the office at 7:00 am. They reached at the spot at about 7:30 am. He does not know when he handed over the aforesaid photographs to the IO.
29. Sh. Satbir was examined as PW14. He deposed that he drives a tempo. Amit was son of his deceased brother Karambir. On 18.05.17 at about 10 PM he was sitting outside his house. Amit came out of his house while talking on phone with some one. Amit was going to some where on motorcycle. He asked Amit where he was going. Amit told him that he was going to meet Ajay Dada Bawania. Amit did not come back after passing of some time. Then he made call on his mobile no.7834986468 by his St. Vs. Himanshu @ Tinna etc SC No:544/17 : 9 :
mobile phone no.9871156952 for 4-5 times. Amit did not pick up the phone. On the next day in the morning he was going towards the field. He saw crowd. Police also reached there. He reached there and found the dead body of my nephew Amit lying in the field. Motorcycle of Amit was also lying by the side of the road. He identified the dead body of Amit.
30. On the next day i.e. 19.05.17 he visited the mortuary of BSA hospital, Rohini and identified the dead body of his nephew Amit vide memo Ex.PW-14/A. He received the dead body vide memo Ex.PW-14/B. Ajay Dada called his nephew and he (Ajay) killed his nephew.
31. During cross-examination by the defence he deposed that when he was sitting outside his house, at that time his son aged about 22 years, his daughter, his wife and his mother were present inside the house. The sister and younger brother of deceased Amit were present in their house when he left his house. He had not informed the family members of his nephew Amit (deceased) regarding meet with one Ajay Dada of Bawana. He denied the suggestion that on 18.05.17 I had not seen his nephew coming out of his house or talking on phone with some one. He denied the suggestion that his nephew Amit had never stated him that he is going to meet Ajay Dada of Bawana. He denied the suggestion that my nephew had not left his house on motorcycle. He denied the suggestion that he did not make any call to his nephew Amit on 18.05.17. He admitted that on night of St. Vs. Himanshu @ Tinna etc SC No:544/17 : 10 :
18.05.17 I did not went to the PS to lodge missing report/complaint regarding missing of my nephew Amit.
32. HC Jasbir was examined as PW15. He deposed that on 19.05.17 at about 6.12 AM DD no.10B was received. Thereafter, he along with SI Puneet reached in the field of Ram Ratan, Sultan Pur Dabaas. They found one motorcycle bearing last 4 digit 4405 lying on the side of the road and the dead body of one boy aged about 19-20 years was found lying at a distance of 15-20 steps in the field of Ram Rattan. There were injury marks on the head of the body. Crime team was called at the spot. Crime team inspected the scene of crimeand took the photographs. The passersby identified the dead body and disclosed the name of deceased as Amit son of Karambir. The uncle of deceased namely Satbir also came there and identified the dead body. SI Puneet prepared rukka and handed over to me for getting the FIR registered. I went to PS Bawana and got registered the FIR. The investigation of the case was marked to Inspector Anil Kumar. After registration of FIR I came back at the spot and handed over copy of FIR and original rukka to Inspector Anil Kumar.
33. During cross-examination by the defence that they reached the spot at about 6.30 AM. He took the rukka at about 8.45 AM on 19.05.17. The FIR was registered at about 9/9.15 AM. He denied the suggestion that on 19.05.17 he did not join the investigation with SI Puneet or that he did not visit the place of recovery of dead body at any point of time.
St. Vs. Himanshu @ Tinna etc SC No:544/17 : 11 :
34. Ct. Manoj was examined as PW 16. He deposed that on 19.05.17 at about 6.30 AM he received call from SI Puneet and called him to reach in the field at Sultan Pur Dabaas, Chor Piyau Road. He reqached the spot. Inspector Anil Kumar, SHO Sham Sunder, SI Puneet, HC Jasbir were present there. Public persons were also there. One motorcycle no.HR-10L 4405 was lying near the field and at some distance one body of boy aged about 20 years was lying in the field. The body was identified as of Amit.
Satbir uncle of deceased was also present there. Crime team was called at the spot. Photographs were taken by the crime team. At about 8.45/9 AM he took the dead body to BSA hospital mortuary.
35. On 20.05.17 post mortem of dead body was conducted. Satbir uncle of deceased identified the dead body of deceased Amit in the mortuary. Dead body was handed over to Satbir after post mortem.
36. During cross-examination he denied the suggestion that he signed the documents regarding investigation while sitting in the PS at the instance of IO. It is wrong to suggest that the photographs of the dead body and the place of recovery were not clicked in his presence.
37. SI Puneet was examined as PW17. He deposed that on 19.05.17 on receipt of DD no.10B Ex.PW-6/A regarding one dead body lying in the field near farm house on the road, Bawana to Sultan Pur and one motorcycle was also lying there, he along with HC Jasbir reached there. They found at the corner of the road one St. Vs. Himanshu @ Tinna etc SC No:544/17 : 12 :
motorcycle no.HR 10 L 4405 Bajaj black colour. The dead body of male aged around 20 years was found lying near the munder in the field of Ram Rattan Pradhan about 15 steps away from the motorcycle. SHO and ATO Inspector Anil Kumar and other staff also reached the spot. The blood stained wooden bitta was lying 4 steps away from the dead body. One another blood stained wooden bitta having crack was lying 6 steps away. The third wooden blood stained bitta, in two pieces was lying away from the two other bittas to the Southern side. The injuries were found on the head, ear and forehead of the dead body and face was found smeared with blood. On the search of the dead body one mobile phone make Samsung white colour having sim of Vodafone and idea was found in the pants pocket. He noted down the IMEI numbers of the said phone. The dead body was identified as of Amit son of Sh.Karambir r/o Vill.Sultan Pur Dabaass. Satbir uncle of Amit also reached there and identified the body. The crime team was called at the spot. Crime team inspected the scene of crime and photographer took the photographs. He made endorsement Ex.PW-17/A on DD no.10B already Ex.PW-6/A. He prepared the rukka and handed over to HC Jasbir at 8.45 AM on 19.05.17 for registration of FIR. HC Jasbir left the spot. The dead body of deceased was sent to the mortuary of BSA Hospital through the Police Staff.
38. Further investigation was conducted by Inspector Anil Kumar, ATO, who received copy of FIR and original rukka from St. Vs. Himanshu @ Tinna etc SC No:544/17 : 13 :
HC Jasbir. The motorcycle no.HR10 L 4405 make Bajaj black colour was seized vide seizure memo Ex.PW-17/B.
39. One pair of chappal of green colour Hi Fashion found on the spot were wrapped in a piece of cloth, sealed with the seal of PK and seized vide seizure memo Ex.PW-17/C.
40. The mobile phone make Samsung of white colour broken from its back side cover having sim of Vodafone and Idea was put in plastic container, wrapped with doctor tape, sealed with the seal of PK and seized vide seizure memo Ex. PW-17/D.
41. Two pieces of wooden danda/bitta blood stained were wrapped in a piece of cloth, sealed with the seal of 'PK' and seized vide seizure memo Ex. PW-17/E.
42. The wooden danda/bitta having crack in the middle was wrapped in a piece of cloth, sealed with the seal of 'PK' and seized vide seizure memo Ex. PW-17/F.
43. The blood stained wooden danda/bitta was wrapped in cloth, sealed with the seal of 'PK' and seized vide seizure memo Ex. PW-17/G.
44. Blood stained earth was lifted from near the dead body, put in a plastic container, sealed with the seal of 'PK' and seized vide seizure memo Ex. PW-17/H.
45. The earth control was lifted from near the dead body, put in a plastic container, sealed with the seal of 'PK' and seized vide seizure memo Ex. PW-17/I.
46. He also deposed that on 20/05/2017, he alongwith IO went St. Vs. Himanshu @ Tinna etc SC No:544/17 : 14 :
to BSA Hospital Mortuary where IO prepared inquest papers. The dead body was identified by the relatives of the deceased. On the request of the IO, the Autopsy Surgeon conducted postmortem. After the postmortem, the dead body was handed over to the relatives of the deceased. After the postmortem, the three exhibits were received by the IO and seized vide seizure memo Ex. PW17/J.
47. On 23/05/2017, he alongwith IO, SI Dhirendra, ASI Vinod Kuamr, Constable Rambir and Constable Dinesh joined the investigation and left the Police Station. They reached Kanjhawala Road near Hanuman Mandir. One Secret Informer met them and informed about the accused. IO requested some passersby to join the investigation but none agreed. They all alongwith secret informer reached Nangal Thakran Road. At about 11:30 a.m., one Honda City car of light golden colour bearing No. DL 4C AB 1442 was pointed out by the Secret Informer and got stopped. In the said car, four persons were found sitting. They were apprehended. They revealed their names i.e. Anuj @ Chujja who was sitting in the driver seat, Ajay @ Datta was sitting with the driver seat, Himanshu @ Tina was sitting in the rear seat of the car behind Ajay and Mahesh @ Kala was sitting on the rear seat of the car behind Anuj @ Chujja. Ajay @ Datta was found juvenile and SI Ajay Kumar JWO was called from the Police Station for interrogation and apprehension of JCL Ajay.
48. Anuj @ Chujja was arrested vide arrest memo Ex.
St. Vs. Himanshu @ Tinna etc SC No:544/17 : 15 :
PW17/K-1. His personal search was conducted vide memo Ex. PW17/K-2. He made disclosure statement Ex. PW17/K-3.
49. Mahesh @ Kala was arrested vide arrest memo Ex.
PW17/L-1. His personal search was conducted vide memo Ex. PW17/L-2. He made the disclosure statement Ex. PW17/L-3.
50. Himanshu @ Tina was arrested vide arrest memo Ex. PW17/M-1. His personal search was conducted vide memo Ex. PW17/M-2. He made the disclosure statement Ex. PW17/M-3.
51. The FSL Team was called by the IO for inspection of Honda City car. FSL Team inspected the car and handed over a piece of seat cover which was having blood stains to IO. IO sealed the same with the seal of 'SS' and seized vide seizure memo Ex. PW17/N. The car alongwith key was taken in possession vide seizure memo Ex. PW17/O. Accused Anuj @ Chujja, Mahesh @ Kala and Himanshu @ Tina pointed out the place of murder vide pointing out memos Ex. PW17/K-4, Ex. PW17/L-4, and Ex. PW17/M-4 respectively.
52. Thereafter, all the four accused led them to Village - Pipli, Kharkhodra, Sonipat near the Canal to the west side. The accused Mahesh @ Kala produced the clothes from the bushes which he was wearing at the time of incident. The clothes produced were wrapped in cloth, sealed with the seal of 'SS' and seized vide seizure memo Ex. PW17/L-5.
53. The accused Himanshu @ Tina produced the clothes from the bushes which he was wearing at the time of incident. The St. Vs. Himanshu @ Tinna etc SC No:544/17 : 16 :
clothes were wrapped in a cloth sealed with the seal of 'SS' and seized vide seizure memo Ex. PW17/M-5.
54. The accused persons pointed out the shop of Dev Trading Hardware i.e. Village - Khera Khurd near main bus stand opposite Balaji Diagnosistic Centre from where they had purchased bitta/wooden dandas vide memos Ex. PW17/K-6, Ex. PW17/L-6 and Ex. PW17/M-6.
55. On 07/06/2017 he alongwith Draftsman Constable Naveen and IO went to the scene of crime where Constable Naveen took measurements and prepared rough notes at his instance for preparing scaled Site Plan. He identified the accused persons and also identified the case property.
56. During cross examination by the defence he stated that the information about the dead body was received from PCR. He was already present in the area of PS when he got the information from duty officer. HC Jasbir was with him at that time. He received this information at about 6.15 AM. They reached the spot at about 6.25 AM in his car. Many public persons were already present at the spot. No public person came forward to become witness and therefore, he could not join any person in the recovery proceeding. He does not know if IO joined the uncle of deceased in the recovery proceedings. He denied the suggestion that uncle of deceased was intentionally not joined in the investigation or that the recovery was not effected from the scene of crime. He denied the suggestion that recovery was planted to create false St. Vs. Himanshu @ Tinna etc SC No:544/17 : 17 :
evidence. No chance prints were found on the dandas. The FSL team was not called at the spot to lift the blood from dandas. He denied the suggestion that no mobile phone was found. He does not remember at what time crime team reached the spot. He does not know how many photographs were clicked by the photographer. He denied the suggestion that he manipulated the contents of rukka at the instance of SHO/IO. He does not remember at what time dead body was removed from the spot. They remained at the spot upto 10/10.30 AM.
57. The informer met them at Sehrawat Service Station, Kanjawala Road. They were in two private vehicles. IO and SI Dhirender were in uniform. All others were in civil dress. He parked his car blocking the way and the other car was at some distance. The informer was sitting in the car in which IO was present. He does not know from how much distance IO noticed the car. He only obstructed the way after getting signal of IO. He can not tell the speed of the vehicle of the accused person, however it skidded when it stopped. No photograph of the place of apprehension was taken by the IO. Himanshu @ Tinna was arrested first in time. They remained on the spot upto 4 PM. Anuj @ chuja was driving the Honda City car. The FSL team reached the spot of apprehension at 1.45 PM. FSL team comprised of two females and 2-3 male persons. He denied the suggestion that the accused persons were not arrested in the manner or that the accused persons were called in the PS for inquiry or that they St. Vs. Himanshu @ Tinna etc SC No:544/17 : 18 :
were falsely implicated and arrested in the present case. He denied the suggestion that the accused persons were not driving the Honda City car or that IO of the case had called the owner of the Honda City car or that the said car has been falsely seized by the IO to create false evidence against the accused persons. He denied the suggestion that no Honda city car was inspected by the FSL team. He denied the suggestion that accused persons did not point out any place or that all the proceedings were conducted while sitting in the PS. He denied the suggestion that the accused persons never took them to village Pipli, Kharkhoda, Sonepat or that on their pointing out no clothes were recovered from the said place or that the clothes have been planted in the present case or that blood and earth particles were planted on the said clothes to create false evidence against the accused persons. He does not know whether IO prepared the site plan of the place of recovery. He denied the suggestion that case property has been tempered.
58. The FSL team official cut the piece of seat cover but he does not know the name of the official of FSL team.
59. Sh. Chander Shekhar, Nodle Officer of Bharti Airtel was examined as PW18. He brought the record of mobile No. 9560623130. He proved the customer application form as Ex.PW18/A. As per the customer application form, this phone number was issued in the name of Anuj S/o Rishi Prakash R/o 375, Ishwar Colony, Bawana. the call detail record of this number w.e.f. 15.03.2017 to 29.05.2017 is proved as Ex.PW18/B. He also St. Vs. Himanshu @ Tinna etc SC No:544/17 : 19 :
proved the record of mobile No. 8826614783. He proved the copy of customer application form as Ex.PW18/C and the copy of voter I.D. card annexed with customer application form as Ex.PW18/D. As per customer application form, this mobile No. was issued in the name of Babita W/o Sh. Karamvir. The call detail record of this number w.e.f. 15.03.2017 to 29.05.2017 is proved as Ex.PW18/E. The certificate U/s 65B Evidence Act in respect of call detail record of both the number is proved as Ex.PW18/F. The Cell I.D. Chart is proved as Ex.PW18/G.
60. During cross examination by the defence, he admitted that the signal will jump from one Tower to the other nearest Tower, if there is congestion. He denied the suggestion that the CDR brought by him is wrong and fabricated or that the certificate U/s 65B Evidence Act is not in accordance with law.
61. Sh. Israr Babu alternate Nodel Officer, Vodafone Mobile Services Ltd. was examined as PW19. He proved the record of mobile phone No. 7290809735. A copy of customer application form is proved as Ex.PW19/A. The copy of Aadhar card attached with customer application form is proved as Ex.PW19/B. As per customer application form, this mobile phone No. was issued in the name of Anuj S/o Rishi Prakash. The call detail record of this number from 15.03.2017 to 31.05.2017 is proved as Ex.PW19/C. The certificate U/s 65B Evidence Act is proved as Ex.PW19/D.
62. He has also proved the record of mobile phone No. 9873380358. The copy of customer application form and of St. Vs. Himanshu @ Tinna etc SC No:544/17 : 20 :
Aadhar Card annexed with customer application form are proved as Ex.PW19/E and Ex.PW19/F respectively. As per the customer application form, this mobile phone number was issued in the name of Gyanvati W/o Ravinder. The call detail record of this number from 15.03.2017 to 31.05.2017 is proved as Ex.PW19/G. The certificate U/s 65B Evidence Act is proved as Ex.PW19/H. The Cell I.D. Chart running into 11 pages is proved as PW19/I.
63. During cross examination by the defence, he admitted that the signal will jump from one Tower to the other nearest Tower, if there is congestion. He denied the suggestion that the CDR brought by him is wrong and fabricated or that the certificate U/s 65B Evidence Act is not in accordance with law.
64. Sh. Shishir Malhotra, Nodel Officer Aircel Ltd. was examined as PW20. The testimony of this witness could not be completed for want of call detail record which was not on file. As the statement of witness could not be completed, in my opinion, no reliance on the same can be placed.
65. Dr. Monika Shahi, Senior Scientific Officer (Physics) FSL, Rohini, Delhi was examined as PW 21. She deposed that vide letter no. 1804 dated 07.06.2017, four sealed parcels were received in the lab in connection with the present case. She had examined the material contained in the said parcels i.e. soil sample, trace amount of soil collected from Ex. 9a and 9b, trace amount of soil collected from Ex. 10a and 10b, trace amount of soil collected from Ex. 11a and 11b. Upon examination, the St. Vs. Himanshu @ Tinna etc SC No:544/17 : 21 :
aforesaid exhibits physically under magnification, using microscope and VISPEC, it was found that the sample soil of Ex. 5 and collected sample of Ex. 9, 10 and 11 were similar in respect of microscopic appearance and under UV. She proved her report as EX PW 29/A. After examination, the case exhibits were sealed with the seal of FSL-DR.Ms-Delhi.
66. During cross-examination she denied the suggestion that she had received the aforesaid exhibits in unsealed condition or that she had prepared report Ex. PW21/A at the instance of IO without conducting any such examination or that she had not examined the said exhibits physically or under magnification or by using microscope or VISPEC.
67. Sh. Devanand Majhi was examined as PW22. He deposed that he is running a hardware shop in the name of Dev Trading at Khera Khurd Bus stand. He does not know anything about this case. He was cross-examined by Ld. APP for the State but nothing material came on record to support the prosecution case.
68. W/ASI Laxmi was examined as PW 23. She was working as duty officer and proves the copy of FIR as Ex. PW23/A. She made endorsement on the rukka about registration of FIR and proved the same as Ex. PW23/B. She sent the copiesof FIR to the senior Police Officers and the Area MM through special messanger. She proved the certificate under Section 65B Evidence Act as Ex. PW23/C u/s 65 B.
69. During cross-examination by the defecne she denied the St. Vs. Himanshu @ Tinna etc SC No:544/17 : 22 :
suggestion that FIR was recorded ante-time and ante-dated or that she has given certificate u/s 65 B of Indian Evidence Act at the instance of IO.
70. Ms. Poonam Sharma, Assistant Director Biology, FSL, Rohini, Delhi was examined as PW 24. She conducted the Biological and DNA Finger printing test on the exhibits. Upon biological examination, blood was detected on Ex. 1, 2, 3, 4, 6a, 6b, 6c, 6d, 6e, 7, 8, 9a, 9b, 10b and 11a, however, blood could not be detected on Ex. 5, 10a and 11b. Upon DNA examination, the alleles from the source of Ex. 7 i.e. blood in gauge bandage of deceased were accounted in the alleles from the source of Ex. 1,2 and 3 i.e. wooden pieces, 6a, 6b, 6c and 6d i.e. clothes of deceased and 9b i.e. T-shirt of accused Himanshu. She proved the report as Ex. PW24/A.
71. During cross-examination by the defence she deposed that she does not remember the date of examination of the aforesaid exhibits but the same is mentioned in her internal notes. She admitted that she has not mentioned the colour of clothes examined by her in report Ex. PW24/A and has not handed over the allelic data to IO. She denied the suggestion that she had received the aforesaid exhibits in unsealed condition or that she had prepared report Ex. PW24/A at the instance of IO without conducting any such examination. She denied the suggestion that she had not examined the said exhibits as per the methods mentioned in my report Ex. PW24/A. St. Vs. Himanshu @ Tinna etc SC No:544/17 : 23 :
72. Sh. Mukesh Kumar was examined as PW25. He deposed that on 19.05.17 in the morning hours he was going to perform his duty in Delhi Jal Board. At about 6 AM he reached Prem Piyau @ Chor Piyau Road, Sultan Pur Dabas where he saw a dead body of a boy lying in the ground and also a motorcycle near the corner of road. He made a call at 100 number from his mobile no.9650236262. After some time PCR van reached there and noted down his address and name. Thereafter he left for performing my duty. Nothing material came on record to discredit the witness during cross-examination by the defence.
73. Sh. Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication was examined as PW 26. He proved the cell ID chart of REliance Communication as Ex.PW-26/A.
74. During cross-examination by the defence he denied the suggestion thatthe cell ID chart is false and fabricated document.
75. SI Jagdeep was examined as PW27. he was the in-charge of the Crime Team which visited the scene of crime on 19.05.2017. He deposed that on receiving call he along with HC Virender and other staff went to Sultan Pur Dabas to Chor Piao right side of road where they met SI Puneet and other police officials of PS: Bawana. He inspected the scene of crime and HC Virender took photographs from different angles. They remained at the spot from 7 am to 8 am. he proved his report as Ex.PW-
27/A.
76. During cross-examination by the defence he deposed that St. Vs. Himanshu @ Tinna etc SC No:544/17 : 24 :
he left the office at about 6.30 AM and reached at the scene of crime at about 7 AM. He denied the suggestion that the inspection report Ex.PW-27/A was prepared by him while sitting in his office without visiting at the scene of crime. No chance prints/finger prints were lifted from the spot. No articles etc. were seized or sealed in my presence. IO did not obtain his signature on any document.
77. Sh. Ajeet Singh, Alternate Nodal Officer, Idea Cellular Ltd. was examined as PW 28. He proved the record of mobile no.7834986468. As per record this mobile number was issued in the name of Vijay Sahni son of Sh. Ram Bilas Sahni and the CAF is attached with voter Identity card which are Ex.PW-28/A collectively(OSR). The CDR of this mobile from 15.03.17 to 21.06.17 running into 17 pages is proved as Ex.PW-28/B. The certificate under Sec.65 B of Evidence Act is proved as Ex.PW- 28/C. Nothing material came during cross-examination to discredit the witness.
78. Inspector Anil Kumar was examined as PW 29. He deposed that on 19.05.2017 on receipt of information regarding one dead body lying in the field near farm house on the road, Bawana to Sultan Pur and one motorcycle he along with SHO and police staff reached the spot. At the corner of the road one motorcycle no.HR 10 L 4405 Bajaj black colour was found lying. The dead body of male aged around 20 years was found lying near the munder in the field of Ram Rattan Pradhan about 15 St. Vs. Himanshu @ Tinna etc SC No:544/17 : 25 :
steps away from the motorcycle. He corroborated the testimony of PW17 regarding the investigation carried out on the spot. He prepared the site plan EX PW-29/A of the scene of crime at the instance of SI Puneet.
79. On 20.05.2017 he along with SI Puneet went to BSA hospital. He prepared the inquest papers Ex.PW29/B. He moved application u/s Ex.PW29/C for conducting post mortem. He recorded the statement of Satbir and Dilbagh Ex.PW14/A and Ex.PW29/D. After the post mortem dead body was handed over to the relatives. He seized vide memo Ex.PW17/J the exhibits handed over to him by the doctor after the post mortem. He identified the case property and also the accused persons.
80. During cross-examination by the defence he stated that he did not lodge any departure entry after receiving information. He visited the spot along with the SHO. The owner of the field Ram Rattan was not called. He denied the suggestion that wooden bittas were not lying at the spot or that the same were planted lateron. He denied the suggestion that blood was planted on wooden bittas by him in connivance with SHO in order to create false evidence. He denied the suggestion that blood of deceased was planted on those wooden bittas or that he tampered with the case property. He denied the suggestion that no public person was called at the time of recovery of wooden bittas as no recovery was effected.
81. He received the copy of FIR at about 10 am. No finger St. Vs. Himanshu @ Tinna etc SC No:544/17 : 26 :
prints or chance prints were lifted from the spot. He denied the suggestion that the mobile phone make Samsung having SIM of vodafone was not found at the spot or that the same was planted. He did not site or examine any person who is subscriber of mobile phone found in possession of deceased. He denied the suggestion that witnesses have deposed falsely at his instance. He denied the suggestion that entries in register No.19 and 21 were manipulated at his instance.
82. SI Dhirender was examined as PW-30. He deposed that on 23.05.2017 he along with Inspector Shyam Sunder, SI Puneet, ASI Vinod, Ct. Rambir and Ct. Dinesh joined the investigation. They reached Khanjawala road near Hanuman mandir. One secret informer met them. He corroborated the testimony of PW- 17 regarding the arrest of accused persons i.e. Anuj @ Chuja, Mahesh and Himanshu and also the Juvenile 'A'. He also deposed about the recovery of the Honda city car and lifting of exhibits from the same. He also corroborated the testimony of PW17 regarding the recoveries and the pointing out.
83. He further deposed that on 04.10.2017 he received five sealed parcels along with two sample seals from MHC(M) for depositing the same in CFSL, Lodhi Colony CGO complex. He deposited the exhibits and obtained the acknowledgements of CFSL which he handed over to the MHC(M) on return to the police station. No body tampered with the case property till it remained in his possession. He identified all the accused persons St. Vs. Himanshu @ Tinna etc SC No:544/17 : 27 :
and also identified the case property.
84. During cross-examination he deposed that he was not having any secret information when they left the police station. He does not know if IO was having any secret information. It was not mentioned in the departure entry as to where they are going. However, it was mentioned that they are going for investigation in this case. They were in two private vehicles. IO noticed the secret informer near Chhota Hanuman Mandir and on seeing him IO reached near him. He does not know if that secret informer met the IO before that date also. No DD was recorded when the secret information was received. Two persons i.e. Sunil going with his wife and Mr. Hori were asked to join but they refused. He does not know if IO noted down the names of those persons in the case diary. There is very less traffic on that road. They had positioned their vehicles on the road at two places. They all were sitting inside the vehicle. Informer was with the IO in his car. The car in which IO was sitting was parked facing Nangal Thakran. The other car was positioned diagonally on the road. He was also with the IO in the same car. He cannot tell the speed of the car of accused persons however, there were skid marks on the road where the accused persons stopped the car. The car was parked diagonally obstructing the road due to which accused persons stopped their car. He denied the suggestion that the photographs of the vehicle and the accused persons were not taken as accused persons were not apprehended from that place. Accused St. Vs. Himanshu @ Tinna etc SC No:544/17 : 28 :
Mahesh was sitting in the car behind Anuj. First of all Anuj was arrested at 1:55 pm. Ct. Rambir and Ct. Dinesh are not witness to the arrest. They remained on the spot from 11:40 am till 4:00 pm. Juvenile was sent along with JWO in separate car. FSL team reached the spot at 1:55 or 2:00 pm. Crime team was not called. It is wrong to suggest that accused persons were not using any car or that the same was planted upon them. He denied the suggestion that accused persons did not lead them to the field of Ram Rattan Pradhan. Sultanpur Dabas, chor piao road opposite Rajendera Farm. At about 5:00 pm they left for village Peepli Kharkoda Sonepat and reached there at about 6:00 pm. They did not visit the local police station. No FSL team was called in the village. The place of recovery was about 50-60 meters away from the canal. There were slight soil particles on the recovered clothes. The clothes recovered at the instance of accused Himanshu were T-shirt and light blue colour jeans pants. He admitted that in the seizure memo Ex.PW17/M5 it is mentioned that the shirt and blue colour jeans pants are recovered. He denied the suggestion that no recovery was effected at the instance of accused persons or that the clothes were planted upon them. He denied the suggestion that accused persons were called to PS and falsely implicated in this case.
85. Inspector Shyam Sunder was examined as PW-31. He fully corroborated the testimony of PW17, PW29 and also the testimony of PW30 regarding the visit on the spot, lifting of St. Vs. Himanshu @ Tinna etc SC No:544/17 : 29 :
exhibits from the spot, arrest of accused persons and pointing out made by them as well as seizure of the clothes produced by the accused persons. He stated that he sent the exhibits to FSL scaled site plan was got prepared. He identified the accused persons, collected the FSL result and filed the same in the court. He also collected the CDR's and prepared the chart Ex.PW31/A on the basis of the CDR. The location of the mobile phones of the accused persons is shown in the exhibit PW31/B running into 12 pages. The CFSL result dt.18.01.2018 is Ex.PW31/C and Ex.PW31/E. He identified the accused persons and also the case property.
86. During the cross-examination he stated that he does not remember vide which DD he left the police station on 23.05.2017. They left the police station at about 9:50 am for the investigation of this case. SI Dhirender, SI Puneet, ASI Vinod, Ct. Rambir and Ct. Dinesh were with him when they left the police station on 23.05.2017. He along with SI Dhirender was in swift desire car No.DL 8CW 8199 which is in the name of his wife. The second car was i20 brought by SI Puneet. Both the vehicles were of white colour. The other police officials were sitting in i20 car of SI Puneet. They reached near Sehrawat Service station at about 10:30 or 10:45 am. The distance between police station and Sehrawat Service station is about 1 or 1 ½ k.m. The distance between the Sehrawat Service Station and the place of apprehension is about 400 to 500 meters. He denied the St. Vs. Himanshu @ Tinna etc SC No:544/17 : 30 :
suggestion that there is no Hanuman Mandir near Sehrawat Service station. He does not know if there is another Hanuman mandir at Sultanpur mor on main Khanjawala road. The swift desire was stationed near the pullia after crossing the pullia and i20 was stationed towards Khanjawala road. He denied the suggestion that the said pullia was demolished on 01.05.2017 or that an alternate pullia was made. He admitted that there is a temple to a distance of about 100 meters after crossing the pullia. He cannot say if 2-3 persons always remain present at the said temple. He denied the suggestion that he did not visit that place on 23.05.2017. They were total 7 persons including the informer. He does not remember at what time FSL team was called. The FSL team reached the spot at about 1:40 or 1:50 pm. SI Puneet was having mobile No.9811569973. SI Dhirender was having mobile No.9868644967. He does not know the mobile phone numbers of other witnesses. He denied the suggestion that he is not revealing the mobile numbers of officials of raiding party as they were not at the place of apprehension. He denied the suggestion that accused Anuj was called in the police station along with Honda City car and falsely implicated in this case. He denied the suggestion that the case property was planted upon the accused persons. The call detail record of mobile phone No. 7834986468 was taken by inspector Anil Kumar through email from Nodal officer. He denied the suggestion that Inspector Anil did not hand over the CDR of aforesaid number to him on St. Vs. Himanshu @ Tinna etc SC No:544/17 : 31 :
20.05.2017 and 21.05.2017 or that he did not analyse the same.
Family members of deceased were not called at the time of pointing out. They did not make any entry in the local police station of Peepli Kharkhoda and also did not join any local police personal. He denied the suggestion that he planted the blood of deceased on the clothes of accused persons and also the soil on the clothes of accused persons. He admitted that in the seizure memo Ex.PW17/M5 it is mentioned that the shirt and blue colour jeans pants are recovered. He stated that it was shirt type T-shirt. He denied the suggestion that he has not properly investigated the case or that he falsely implicated the accused persons.
87. Dr. Kamal Chauhan SSO II Biology was examined as PW-
32. He conducted the biological and DNA examination on the exhibits. The blood was detected on exhibits 1, 2A, 2B, 2C, 2D, 2E and 5A. The blood was too small for serological examination detected on Exhibits 3 and 4B. The blood could not be detected on Ex.4A and 4B. The DNA profile generated from the source of exhibits 2A jeans pants, 2B shirt, 2C baniyan, 2D underwear and 2E mala was found to be consistent with DNA profile of the deceased i.e. the blood stained gauze. He proved his report as Ex.PW31/C.
88. During cross-examination he stated that he examined the exhibits in the laboratory till 18.12.2017. He had applied 16 alleles technology while examining the exhibits however 23 alleles technology available in India however the same is not available in St. Vs. Himanshu @ Tinna etc SC No:544/17 : 32 :
CFSL. He denied the suggestion that he did not examine the exhibits by latest technology or that his report is false and fabricated.
89. Dr. B.K. Mohapatra was examined as PW-33. He conducted the serological analysis on the exhibits and proved his report as Ex.PW31/D.
90. During cross-examination he denied the suggestion that he prepared the false report at the instance of IO.
91. Thereafter, prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence. They wished to lead evidence in defence and thereafter case was fixed for defence evidence.
92. Sh. Mukesh Kumar was examined as DW-1. He deposed that in April 2017 they had harvested the wheat crop near pullia near Nangal Thakran road. Thereafter in the last week of April a temporary road was made through his field and Pullia was demolished in the first week of May 2017.
93. During cross-examination by the State he stated that he had sown the wheat crop No.711 in the month of December 2017 and harvested the crop around 18 th or 20th April 2017. No vehicle was allowed to cross the canal in the month of April and May 2017. After harvesting the wheat crop he did not visit his field. He had not sowed any crop in his field thereafter. After demolishing the old pullia the authorities have put pipes on the side to cross the canal on which the people and the vehicle can move. There is St. Vs. Himanshu @ Tinna etc SC No:544/17 : 33 :
no Hanuman Mandir near his field however there is Hanuman Mandir after crossing pullia towards Nangal Thakran. There is a way coming from the side of Khanjhawala road going towards Nangal Thakran. Canal is at the corner of his field. He denied the suggestion that he is deposing falsely in order to save the accused who are known to him.
94. Chander Prakash was examined as DW-2. He deposed that on 23.05.2017 they organized Bhandara in Hanuman Mandir near ganda Nala, Nangal Thakran. They reached the temple at about 11:00 am. The Bhandara started at 1:00 pm. He remained in the temple till 6:00 pm. He owned a vehicle Tata Ace and on the instruction of maharaj ji he went upto the pullia and the labourer working at the pullia were brought to the temple for taking Parshad. He had not seen any police official on that day.
95. During cross-examination by the Ld. APP he stated that he had not employed any helper in his vehicle. On 23.05.2017 it was Tuesday. He does not know what was day on 31.05.2017. He does not know on which date in the year 2018 they organized Bhandara in Hanuman Mandir.
96. Smt. Omwati was examined as DW-3. She deposed that Himanshu is her son and has been falsely implicated by the police. On 23.05.2017 her son was present in the house, some police officials visited her house and took her son for inquiry to the police station Bawana and thereafter falsely arrested in this case. Her son was not using any mobile phone. She was using mobile St. Vs. Himanshu @ Tinna etc SC No:544/17 : 34 :
phone No.9810747604 and the same used to remain with her. Her son also used to remain at home only.
97. During cross-examination by Ld. Addl. PP she admitted that this mobile phone number is registered in the name of her son Himanshu. She denied the suggestion that her son was using the said mobile number and used to carry the same with him. He denied the suggestion that her son was not called by the police on 23.05.2017 and was not taken from the house. He denied the suggestion that her son was involved in the murder case or that he along with other conspirators killed Amit. She denied the suggestion that her son Himanshu was arrested from Nangal Thakran road pullia ganda nala.
98. Some court questions were put to her and in reply to that she stated that she remained at home. She was asked as to whether she had ever visited Bawana Industrial Area, Chhawla Village, Paschim Vihar, Prahlad pur Bangar between 15.03.2017 to 01.05.2017.
99. In answer to that she stated that she had gone to Prahlad pur Bangar but she does not remember the date.
100. She was asked as to whether she can explain as to how her mobile phone number reached there when it used to remain with her all through as deposed by her. The witness has not answered the same.
101. She was asked as to whom mobile phone No. 9717023091 belongs or any other number on which she made call between St. Vs. Himanshu @ Tinna etc SC No:544/17 : 35 :
15.03.2017 to 31.05.2017. She stated that she does not remember due to lapse of time.
102. Thereafter, defence evidence was closed. The case was fixed for final arguments.
103. I have heard Ld. APP for the State, Ld. Defence counsel for accused persons and perused the record.
104. In the present case there is no ocular evidence to link the accused persons with the commission of offence or to establish the case. The case is based upon circumstantial evidence. It is well settled law that even on the basis of circumstantial evidence person can be held guilty. The Apex Court in the case of Sharad Birdichand Vs Union of India, (1984) 4 SCC 116 had laid down the following principles:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
105. In the present case prosecution intend to prove the guilt of the accused persons on the basis of following circumstances. St. Vs. Himanshu @ Tinna etc SC No:544/17 : 36 :
(1)Purchase of weapon of offence i.e. wooden bittas by the accused persons.
(2)Use of Honda City car Ex.PW-9/Article 1 in the commission of offence.
(3)Recovery of clothes of the accused persons. (4)Call detail record of accused persons.
(5)Motive.
I take the circumstances one by one.
Purchase of weapon of offence i.e. wooden bittas by the accused persons.
106. In this case when SI Puneet/PW-17 along with HC Jaibir Singh reached the spot after getting information vide DD no.10B Ex.PW-6/A. They found three wooden bittas, one wooden bitta was in two pieces and one was having cracks. Their were blood stains on all the three wooden bittas. The case of the prosecution is that these wooden bittas were purchased by the accused persons from Dev Trading shop run by Devanand Majhi PW-22. He did not support the prosecution case. He denied the suggestion that on 18.05.17 in the evening hours when he was present at his shop, one Honda City car light golden colour came there, two persons in the age group of 20 to 22 years alighted from the car came to his shop and purchased three wooden bittas for a sum of Rs.100/-. He was confronted with his statement given to the police but he did not support the case. Therefore, the prosecution could not prove and establish that these three St. Vs. Himanshu @ Tinna etc SC No:544/17 : 37 :
wooden bittas, which were found on the spot, were infact purchased by the accused persons from his shop. The onus was on the prosecution to prove and establish this fact which the prosecution has failed.
Use of Honda City car Ex.PW-9/Article 1 in the commission of offence.
107. This car is owned by Ashwani Kumar, PW-9. The case of the prosecution is that this car was taken by accused Anuj on 18.05.17 and thereafter he did not return home as he committed the offence along with other accused persons. Ashwani Kumar was examined as PW-9. He admitted that Honda City car DL4C AB 1442 is owned by him and that Anuj is his nephew. He also admitted that his nephew Anuj (accused) left home on 18.05.17 for purchasing medicine. He does not know by what mode of transportation Anuj left the home but his car was with him (PW-9). He denied the suggestion that Anuj took the car on 18.05.17. He also deposed that he was called by the police to the PS along with the car and he reached the PS with his car which was seized by the police and he was asked to get the same released from court which he got released later on.
108. The prosecution has also taken the piece of the rear seat of the car for analysis as according to them the blood of the deceased fell down in the car also from the clothes of the accused persons. The DNA Finger Printing report and serological report are on the file, proved as Ex.PW-31/C and PW-31/D. According to St. Vs. Himanshu @ Tinna etc SC No:544/17 : 38 :
the report the DNA could not be isolated from the blood found on the piece of the seat cover taken from car no.DL4C AB 1442 Ex.PW-9/Article 1. Even the serological examination could not be done as the blood deducted from the piece of seat cover was too small for serological examination. The testimony of PW-9 also demolishes the story of prosecution that this car was recovered from the possession of Anuj and other accused persons when they were allegedly arrested on 23.05.17. PW-9 has stated that this car was called by the police from home to the PS. The onus was on the prosecution to prove and establish that this car was used in the commission of offence which the prosecution has not been able to prove as their star witness PW-9 did not support the prosecution case and even scientific evidence is not able to link this car with the commission of offence.
Recovery of clothes of the accused persons.
109. In this case according to the story of prosecution, accused persons led them to village Pipli, Khera, near Kharkhoda, Sonepat and from near the canal got recovered the clothes which they were wearing at the time of commission of offence. These clothes were seized vide seizure memo Ex.PW-17/M-5 got recovered by accused Himanshu and PW-17/L-5 got recovered by Mahesh. Prosecution has examined SI Puneet PW-17, SI Dhirender PW-30 and Inspector Shyam Sunder as PW-31. All the three witnesses have stood through the test of cross examination. No public witness was joined but as the three police witnesses are St. Vs. Himanshu @ Tinna etc SC No:544/17 : 39 :
consistent, reliable and trust worthy, I found that so far as recovery is concerned is established. But it was also the duty of prosecution to prove and establish that these clothes were worn by the accused persons at the time of commission of offence. For that purpose the prosecution had sent these clothes to FSL for analysis to match the DNA Finger Printing or the blood group. The DNA profiling report is proved as Ex.PW-31/C. According to this report, the blood was not found on 4a i.e. the black lower got recovered by accused Mahesh and on 5 b i.e. the shirt of accused Himanshu. The blood was found on the jeans pants of Himanshu and t-shirt of Mahesh but the blood grouping could not be done on the jeans pants of Himanshu. The blood was too small on the t- shirt of Mahesh and therefore serological examination could not be done. The DNA could not be isolated from the blood found on 4b i.e. t-shirt of Mahesh and 5a the jeans pants of Himanshu. The clothes were also examined in the Physics Division of FSL. Some soil particles were found on the clothes. During examination, the soil found on the clothes was found similar with the soil found on the spot where the dead body was found. It is also important to note here that the clothes were not wrapped in any polythene or from any house but from the bushes near the canal i.e. they were lying on the ground and therefore, soil particles would stick to the clothes from that place also. It was the prosecution to prove that the soil particles found sticking to the clothes were not of the place from where the clothes were recovered but only of the place St. Vs. Himanshu @ Tinna etc SC No:544/17 : 40 :
where the murder was committed. No evidence to this effect has been brought on record. No soil sample was taken from the place from where the clothes were recovered and sent to FSL for comparison. Keeping in view this scientific evidence, I found that the prosecution has failed to link the clothes with the commission of offence i.e. these clothes were worn by the persons at the time of commission of offence. The circumstance is not established. Call detail record of the accused persons.
110. Ld. APP submitted that all the accused persons were on the spot at the relevant time. As per the CDR proved on record as Ex.PW-20/B and the cell ID Chart there of Ex.PW-20/D. Juvenile 'A' was in the area of Khera khurd at 21.33 hours, in the area of Poot Khud at 25.20 hours and in the area of Sultan Pur Dabas at 22.12 hours. Similarly, accused Anus @ Chujja was using mobile phone no.95606231310, CDR proved on record as Ex.PW-18/B and cell ID chart is Ex.PW-18/G. He was also using mobile phone no.7290809735. Immediately after the incident there is no call made by the accused person with each other for a period of six months. This also shows and reflects on their conduct. They were regularly talking with each other before the incident, but immediately after incident they did not talk with each other. This conduct is relevant and points towards the guilt of the accused persons which is established by proving the CDR of accused persons. I have gone through the CDRs and the cell ID chart. According to CDR of the mobile phone number of Juvenile 'A' and St. Vs. Himanshu @ Tinna etc SC No:544/17 : 41 :
of the mobile phone of deceased Amit, their location at 22.12 hours is in the area of Sultanpur Dabas and the call was on mobile phone no.7834986468 which was used by the deceased. So far as the other accused Himanshu and Anuj are concerned, that does not show that they were also present at the spot at relevant time. Even otherwise the CDR and the cell ID chart does not pin point the location at a particular place but in a large area in the radius of 300 mtr to 3 km, hence that does not really point towards the guilt of the accused persons. So far as the juvenile 'A' is concerned, he is not before this court and hence no opinion is given in that regard. Nothing expressed herein shall tentamount to an expression of opinion about Juvenile 'A'. In this case so far as the third accused Mahesh @ Kala is concerned, he was not found using any mobile phone. The prosecution has failed to link the other two accused with this offence on the basis of CDR and cell ID chart. The only thing which can be concluded that they were in touch with each other on mobile phone but that does not means that they were conspiring to commit this offence or have committed this offence. From the fact that after the date of commission of offence they have no talk with each other also does not prove their guilt. This is not inconsistent with any hypothesis of innocence of accused persons. The onus was on the prosecution to prove and establish that while talking on the telephone they entered into an agreement to eliminate Amit which fact the prosecution has failed to establish. In view of the above St. Vs. Himanshu @ Tinna etc SC No:544/17 : 42 :
circumstance, this circumstance is not established. Motive
111. In this case prosecution alleges that the father of accused Anuj @ Chujja was murdered in 2003 and in order to take revenge of murder of his father, Anuj wanted one country made pistol. For that they contacted Amit and also gave him some money but Amit was neither returning the amount nor giving country made pistol and the cartridge. Due to that they murdered Amit but surprisingly prosecution has not placed on record any such document that father of Anuj was murdered in 2003. No such FIR has been placed on record. There is nothing on record that there was any accused in that case from whom Anuj wanted to take revenge. Prosecution alleges that Rs.40,000/- were paid to Amit as mentioned in the disclosure of the accused but in that regard also no evidence has been adduced. Hence in my opinion prosecution has firstly failed to show that father of Anus was murdered or that there was some person arrayed as accused in that case from whom accused wanted to take revenge. Onus was upon the prosecution to prove the motive which the prosecution has failed.
112. Keeping in view the above said discussions on various circumstances, I found that prosecution has failed to prove and establish all the circumstances. The chain is not complete. It can not be definitely said that the crime was committed only by the accused persons. The motive is also not established, therefore, all St. Vs. Himanshu @ Tinna etc SC No:544/17 : 43 :
the accused persons are acquitted. They be released on furnishing personal bond of Rs.25,000/- with one surety each of like amount under Sec.437 (A) Cr.PC. File be consigned to Record Room.Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.08.04
BANSAL 16:10:24 +0530
Announced in the open court
today on 04.08.2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
St. Vs. Himanshu @ Tinna etc SC No:544/17 : 44 :