Delhi District Court
State vs Ashok Yadav 1. Ashok Yadav, on 28 November, 2019
IN THE COURT OF SH. POORAN CHAND
ADDITIONAL SESSIONS JUDGE02 (WEST), DELHI.
Sessions Case No. 483/2017
Committed to Sessions on 28.08.2009
FIR No. 157/1998
Police Station Masuri, District Ghaziabad
Under Section U/s.
147/148/149/302/452/506
IPC
Charged U/S U/s.
147/148/149/302/307/452/
506(II)IPC
State Vs Ashok Yadav 1. Ashok Yadav,
s/o. Late Sh. Jai Prakash
r/o. Village Kudia Gadi,
P.S. Masuri, District
Ghaziabad.
2. Shobha Ram.
3. Yogesh.
4. Rakesh.
s/o. Sh. Jai Prakash
5. Rukmesh.
All sons of Sh. Jai Prakash
(Accused from Sr. no. 2 to 5
have been acquitted vide
order dated 30.04.2015.)
Arguments heard 28.11.2019
Date of such order 28.11.2019
Final Order Acquitted
S.C. No. 483/2017 State Vs. Ashok and others page 1 of 27
Appearance(s) : Sh. Ram Pyara, Ld. Addl. PP for State
: Sh. Rashid Hashmi, Ld. Counsel for accused Ashok.
JUDGMENT:
1. The case pertaining to the charge sheet being filed after investigation u/s 173 (2) Cr.P.C. in respect of FIR No. 157/1998 for the alleged offences u/s 147/148/149/302/452/506 IPC of PS Masuri, District Ghaziabad, U.P.
2. The brief factual matrix as per the case of the prosecution is that on 16.06.1998 at about 6:00 am Tek Chand alongwith his brothers Charan Singh, Rajbir Singh and other covillagers namely Kiran Singh, s/o. Sh. Tejpal , Mukesh Nut, s/o. Sh. Nahar Singh, Lillu, s/o. Sh. Pop Singh resident of Village Bhareta, Anil, s/o. Sh. Ved Prakash, Inderjeet, s/o. Sh. Mohar Singh both resident of Ghaziabad were sitting in the Gher situated at village Kuria Garhi, PS Masuri, District Ghaziabad, U.P. They were writing cards for distribution. In the meanwhile, in two cars Ashok Pehlwan, Shobha, Rakesh, Yogesh and Rukamkesh all sons of Sh. Jai Parkash and two unknown persons came there. They all were armed with weapons. Ashok and Rakesh were having rifles and S.C. No. 483/2017 State Vs. Ashok and others page 2 of 27 other were having revolvers and tamancha. Ashok said you are our relatives but are helping the murderers of our father. On this Tek Chand and his brother cleared their position and said that there is some miss understanding. Ashok and other persons did not trust them and they started firing indiscriminately to murder them. In this firing Charan Singh, Rajbir Singh and Mukesh Nut died on the spot and all other persons fled away to save their lives. Accused persons fired on them. Kiran Singh also sustained injury in the incident. All the accused persons left while saying that whoever will support party will face the same consequences. Complaint was made by Sh. Tek Chand in the police station about the incident on the basis of information FIR No. 157/98 was registered in the police station. Police arrived on the spot, removed the dead bodies to the hospital where post mortem was conducted. Investigation was carried out but the accused persons could not be arrested. The charge sheet was filed against five accused persons namely Ashok Pehlwan, Rakesh, Rukmesh, Yogesh and Shobha Ram. Identity of the other two accused persons could not be established. The above named accused persons also could not be traced and proceedings u/s. 82 Cr.PC were carried out against them. The accused persons were arrested in another murder case. Thereafter, they were formally arrested in this case. The accused persons were granted S.C. No. 483/2017 State Vs. Ashok and others page 3 of 27 bail by the Hon'ble High Court which was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to cancel bail. He could not be arrested thereafter. While the investigation was going on accused Ashok made an application to the State on 13.08.2009 accordingly, the case was transferred to CBCID for investigation and thereafter the investigation was carried out by CBCID. CBCID after completion of investigation filed the charge sheet. During the pendency of the case, accused Ashok Pehlwan remained absconded and was declared Proclaimed Offender.
3. During the pendency of the proceedings, while the evidence of witnesses was being recorded, the witnesses moved application before the Hon'ble Supreme Court of India that they are getting threats and therefore, the Hon'ble Supreme Court of India vide order dated 30.07.2012 was pleased to transfer the case from U.P. to Delhi and accordingly, this case came up before the court of Sh. Virender Kumar Bansal, Ld. ASJ/FTC, West, Delhi for trial.
4. After hearing both the parties, accused Shobha Ram, Yogesh, Rakesh and Rukmesh were acquitted vide judgment dated 30.04.2015 passed by Sh. Virender Kumar Bansal, Ld. ASJ/FTC, S.C. No. 483/2017 State Vs. Ashok and others page 4 of 27 West, Tis Hazari Courts, Delhi and file was consigned to record room with the remark that same may be revived as and when accused Ashok Kumar is apprehended/arrested. On 06.02.2017 an application for issuance of production warrant was filed on behalf of Ashok Kumar and filed was called from record room and it was revealed that file has been summoned by Hon'ble High Court in criminal appeal no. 927/2015 pursuant to letter no. 40583 and 40584crl. Dated 08.09.2015 and same was received on 27.02.2017 and thereafter, production warrant were issued for production of accused Ashok Kumar before the court and on 18.04.2017 accused Ashok Kumar was produced and taken into custody in this case. Vide order dated 17.08.2017 formal charge was drawn against accused Ashok Kumar for having committed offence u/s. 147/148/452/302/307/506(II) r/w.149 IPC framed against accused Ashok Kumar to which accused pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case examined 23 witnesses. Out of 23 witnesses PW1 Tek Chand, PW5 Inderjeet, PW27 Kiran Singh and PW28 Anil examined as the eye witnesses by the prosecution. Other public witnesses are witnesses either of identification of dead body of the deceased persons or witnesses of S.C. No. 483/2017 State Vs. Ashok and others page 5 of 27 panchnama. Beside these witnesses all are police witnesses including the IO.
Ld. Defence Counsel admitted the post mortem reports of the deceased Charan Singh, Rajbir and Mukesh Nutt prepared by PW2 Dr. Vinay Bhargav, hence, he was not examined. PW3 SI Mewa Ram and PW11 Insp. Yashbir Singh expired during retrial of this case consequent upon the arrest of accused Ashok, hence, they were deleted from the list of witnesses.
6. Tek Chand was examined as PW1 who has deposed as under :
"On 16.06.98, at about 56:00 am I alongwith my brother namely Charan Singh, Rajbeer and other family members who were present at our house and were talking on the issue of marriage of my niece (daughter of my elder brother namely Charan Singh) which had to be solemnized on 18.06.98. In the meantime, some people came there and started firing upon us with the weapon i.e. pistol and gun which were in their hands. Due to which my brother namely Rajbeer and Charan Singh expired on sustaining gun shot injuries. Now I do not remember the name of assailants and I cannot identify them due to lapse of time of more than 20 years. I also do not remember anything else about this case."
Thereafter, this witness was declared hostile by Ld. State Counsel and was cross examined at length.
S.C. No. 483/2017 State Vs. Ashok and others page 6 of 27
7. Inderjeet was examined as PW5 who has deposed as under :
"On 16.06.98, at about 56:00 am I alongwith my brother in law namely Tek Chand and his brother Charan Singh, Rajbeer and other family members who were present at the house in the gher of Tek Chand and were talking on the issue of marriage of my niece (daughter of Charan Singh) which had to be solemnized on 18.06.98. In the meantime, some people came there in two maruti cars and started firing upon us with the weapon i.e. pistol, riffle and gun, which were in their hands. Due to which my brother namely Rajbeer and Charan Singh expired on sustaining gun shot injuries. Now I do not remember the name of assailants and I cannot identify them due to lapse of time of more than 20 years. I also do not remember anything else about this case."
Thereafter this witness was declared hostile by Ld. State Counsel and was cross examined at length and he denied all the suggestions put to him.
8. Kiran Singh was examined as PW27 who has deposed as under :
"I am a farmer. I am illiterate. On 16.06.98, I alongwith Charan Singh, Rajbeer and Mukesh were sitting on the courtyard (Varandha) in the house of Charan Singh and we were preparing the marriage card of the daughter of Charan Singh. At about 5:30 pm, two maruti cars were came there and there were 10 to 12 persons in the said maruti cars and stopped at the door of house of Charan Singh. Those 10 or 12 persons got down from the car and entered in the house of Charan Singh. All of them were having riffles/pistols in their hands and started firing upon S.C. No. 483/2017 State Vs. Ashok and others page 7 of 27 us. I ran away from there and went to my house. After about 15 minutes, I returned back there and found Charan Singh, Rajbeer and Mukesh were lying dead and having gun shot injuries. Thereafter, police reached there after about 15 minutes. One Tek Chand, brother of deceased Charan Singh also arrived there. Thereafter police made inquiries from me. I do not know anything else of this case."
Thereafter, this witness was declared hostile by Ld. State Counsel and was cross examined at length and he denied all the suggestions put to him.
9. Anil was examined as PW28 who has deposed as under :
"I do not remember anything about this case due to lapse of time as the incident of this case was happened about 20 years back. I do not remember if my statement was recorded by the IO in this case or not."
Thereafter, this witness was declared hostile by Ld. State Counsel and was cross examined at length and he denied all the suggestions put to him.
10. PW14 Brijesh, PW15 Karan Singh, PW20 Manoj, PW21 Kundan, PW22 Ram Karan and PW23 Pappu are also examined as public witnesses. PW14 and PW15 have deposed that on 16.06.98, they have identified the dead bodies of deceased Charan Singh, Rajbeer, Mukesh, hence they are witnesses of formal nature. PW20 to PW23 have deposed that police prepared panchnama in S.C. No. 483/2017 State Vs. Ashok and others page 8 of 27 their presence, hence, they are witnesses of panchnama and are of formal in nature.
11. PW4 Retired Inspector Pratap Singh has deposed that on 16.06.98 he was posted as Head Mohrar at PS Masuri, District Ghaziabad, U.P. On that day, complainant Tek Chand had given him written complaint, written by Nathu Ram, Ex. K1 bearing the signature of Tek Chand at point Y and Nathu Ram at point X and on the basis of which he recorded FIR u/s. 147/148/1459/307/302/506/492 IPC PS Masuri District Ghaziabad as Ex. K7 bearing his signature at point X. He has also deposed that the fact of complaint was also mentioned in DD Ex. K8 recorded by him and he had also written general diary no. 41/2010 regarding the deposition of house hold articles of accused Ashok in the malkhana which were attached in compliance of process u/s. 83 Cr.PC, running into two pages, Ex. PW4/A bearing his signature at point X.
12. PW6 Chander Pal has deposed that on 24.08.98 he was posted at Inspector CBCID Meerut, U.P. On that day he received this case file for investigation and on receipt of same he gone through the file. He also received the case diary from the office of circle office Pilakhua, Ghaziabad. During the investigation he recorded S.C. No. 483/2017 State Vs. Ashok and others page 9 of 27 statement of Tek Chand, Kiran Singh, Satish, Shree, Suraj Singh, Tej Pal, Brijesh, Khajjan, Neelu, Inderjeet and Sohan Pal. During the investigation he also collected documents and verified the facts regarding the previous enmity between the complainant and accused persons. He also recorded the statement of owner of the maruti car bearing no. DL7C4956. He mentioned these facts in the case diary. Thereafter he transferred from CBCID and he deposed the case file with the case diary in CBCID office.
13. PW7 Vinod Kumar Singh has deposed that his statement was recorded in the court on 14.09.2011 and on 19.10.2011 and same may be read as an part and parcel of his statement. In this case, he conducted the investigation of this case from 16.06.1998 to 02.07.1998. During the investigation he recorded the statements of complainant and other witnesses of the investigation. He also visited the spot alongwith other police staff and as per his instructions SI MM Bisht and SI Rakum Singh prepared the punchnama and filled up the inquest paper for getting postmortem of dead body of this case. He further deposed that on 16.06.1998 he had inspected the spot and prepared the site plan which is Ex.K9 bearing his signature at point X. He also seized the rope of two Charpai (cot) having blood stains and seized the same vide memo S.C. No. 483/2017 State Vs. Ashok and others page 10 of 27 Ex. K10 and Ex. K11 which also bearing his signature at point X and sealed the same in cloth parcels. He seized empty case of six cartridges lying at the spot vide memo Ex. K12 bearing his signature at point X and kept the same in cloth parcel and sealed the same. He also seized one shoe and one slipper from the spot vide memo Ex. PW13 bearing his signature at point X and kept the same in cloth parcel. He sealed the said parcel with his seal. During investigation, he got issued the process for the accused Ashok u/s. 82/83 Cr.PC and got him declared PO and thereafter, he seized the articles from his house vide seizure memo Ex. PW K14 which also bears my signatures at point X. Thereafter he was transferred from the PS.
14. PW8 Inspector Rakam Singh has deposed that on 16.06.1998 he was posted as SI under training at PS Masuri, Ghaziabad, UP. On that day, he had prepared the punchnama of deceased Mukesh, Rajbir Singh and Charan Singh with SI M.M. Bisht which are Ex. 15, Ex.16 and Ex.17 respectively (running into four pages each) and all bearing his signature at point A. He had also moved an application to CMO, Ghaziabad for getting the conduct the postmortem of the said dead bodies vide request Ex.29, Ex.25 and Ex.18 respectively. He also enclosed the inquest papers with said S.C. No. 483/2017 State Vs. Ashok and others page 11 of 27 request which are Ex.19, Ex.20, Ex.21, Ex.22, Ex.23, Ex.24, Ex.26, Ex.27 and Ex.28 respectively bearing his signatures at point A. The documents Ex. PW8/A (running into 4 pages)
15. PW9 Retired Ct. Harpal Singh has deposed that during the year 1979 to 2007 he remained posted as Constable at CBCID, Meerut, UP. Inspector Udayveer was also posted there. He had worked with him and seen him writing and signing in usual course of his duties as such he can identify the signature and handwriting. Inspector had conducted the investigation of the case FIR no./crime no. 157/98, u/s. 147/148/149/307/302/452/506 IPC, PS Masuri, Crime Branch no. 548/2009 State Vs. Ashok & Ors. He also prepared the charge sheet against the accused persons of this case and he had filed the same in the court. He prepared the document i.e. list of documents which is Ex. PW9/K29. The charge sheet Ex. PW9/K30 bearing the signature Udayveer at point A.
16. PW10 Retired Inspector Sher Bahadur has deposed that on 28.07.1998 he was posted as SHO at PS Masuri, District Ghaziabad. On that day, further investigation of this case was assigned to him. He perused the case file and revealed that the FIR of this case was registered on 16.06.1998 at PS Masuri regarding S.C. No. 483/2017 State Vs. Ashok and others page 12 of 27 the murder of three persons. On 31.07.1998 he recovered one Maruti Car bearing registration no. DL7C4956, Badkapul, Gangneher. On the said day he was having secret information that the accused wanted in this case would come by the said car on Badkapul, Gangneher and in pursuance of the said information he conducted nakabandi at the Badkapul. On 31.07.1998 at about 4:00 am, the aforesaid car came at Badkapul and when the car was signalled to stop than the occupants of the car run away after alighting from the car and they left the car. He therefore, seized the said car because the said car was stated to have used in the commission of the offence. He prepared the seizure memo of the said car which is already Ex. K5 PW3 bearing his signature at point A. He recorded the statement of witnesses in this regard. The said car was deposited in the malkhana. Thereafter, on 19.08.1998 the investigation of this case was transferred to CBCID.
17. PW12 Retired Deputy SP Rajbir Singh has deposed that on 06.04.2012, he was posted as Inspector at CB CID, Meerut. On that day, he received the case file of this case for investigation and he perused the same. On 16.04.2002 he wrote case diary after gone through the record of this case. Thereafter, he transferred to Lucknow on 30.04.2002 and deposited the case file at out office S.C. No. 483/2017 State Vs. Ashok and others page 13 of 27 i.e. CB CID, Sector Meerut, UP and case file was assigned to some other officer of CB CID.
18. PW13 Retired Deputy SP Yogender Singh has deposed that on 30.04.2002, he was posted as Inspector at CBCID, Meerut, UP. On that day, he received the present csae file for investigation. On receipt of same, he examined the file. During course of investigation he met with Manoj, s/o. Kundan Singh, Kundan, s/o. Kishal Lal, Ram Karan, s/o. Nehru Nat, Pappu, Kiran, SI Mewalal Bharti, Ct. Nepal Singh, H.Ct. Pratap Singh and made inquiries from them about the present case and also recorded their statement u/s. 161 Cr.PC. During investigation he also met Dy. Jailer of Mujjafar Nagar Jail and made inquiry from him about the record of accuse Ashok, Shobha Ram and Yogesh and made him written request vide carbon copy already Ex. PW13/X1 bearing his signature at point A and he collected the record (photocopies) i.e. history ticket of said accused persons which are already Ex. Pw13/X2 to Ex.PW13/X4 who were lodged in Mujjafar Nagar Jail. He also collected the attested copy of entry and release register which was maintained in Mujjafar Nagar Jail. As per the said register, the name of the accused Yogesh s/o. Jai Prakash was mentioned at sl. no. 3048, the name of Ashok s/o. Jai Prakash was S.C. No. 483/2017 State Vs. Ashok and others page 14 of 27 mentioned at sl. no. 3049 and name of accused Shobha Ram s/o. Jai Prakash was also mentioned at sl. no. 3050. The entry date of all the three accused persons was 14.06.98 and release date of accused Yogesh was 23.06.98 and of remaining two accused person was 27.06.98. The certified photocopy of the same is already Ex.PW13/X6 (04 pages). On the same day, he also made inquiry from the court of SDM Sadar Bazar but no file regarding arrest of these three accused was found. He also made inquiry about the opposite party at their addresses but no such person was found residing there. He had mentioned this fact in his case diary no. 13 and 14. Same are Ex.PW13/X6 and Ex.PW13/X7. On the same day he also met with Yasin and Musafa and made inquiries from them and also recorded their statements u/s. 161 CrPC on 27.5.2002 in this regard. During investigation, on 11.06.2002 he also met with Yogesh Kumar and recorded his statement u/s. 161 Cr.PC. On 12.06.2002 he met with one R.K. Juneja and recorded his statement u/s. 161 Cr.PC. From the inquiries and investigation conducted by him, he found that accused persons had concocted false story of their arrest at PS Chapar, District Mujjafar Nagar u/s. 107/151/116 CrPC. Thereafter he transferred from CBCID Meerut UP and deposited the case file in the office.
S.C. No. 483/2017 State Vs. Ashok and others page 15 of 27
19. PW16 Ravinder Kumar Juneja has deposed that his brother Prem Sagar was registered owner of Maruti 800 bearing registration no. DL7C4956. His brother was expired in January, 2013. In the year, 199798 his brother had gone to Delhi in connection to purchase a plot in the abovesaid car alongwith Ashok Kumar but he did not remember the date and month, it might be 18.07.1997. He left the vehicle there as it got punchered. On the next day, his brother sent driver to take the said vehicle and when he went there he saw Ashok Kumar was taken the vehicle and was saying that his father and brother have been murdered and he had to to go Trans Hindan and he would send the vehicle later on. His brother had given complaint regarding the missing of the said car at PS of Delhi but he do not remember the name of PS. After one year, the above mentioned car was recovered from Masuri, Ghaziabad as told by his brother to him and later on the said vehicle was got released from PS as per the order of court by his brother. The said car had been disposed off/damaged by his brother.
20. PW17 HC Omvrat has deposed that on 16.06.1998, he was posted at Constable at PS Masuri, Ghaziabad. On that day, as per the directions of SO Sh. V.K. Singh, he had taken the dead body of three persons from Village Kudiagarhi and got preserved the some S.C. No. 483/2017 State Vs. Ashok and others page 16 of 27 in Mortuary of Govt. Hospital near Hindan River, Ghaziabad. After the postmortem, all three dead bodies were given to their relatives.
21. PW18 Ramesh has deposed that in the year 1998, UP police had conducted the attachments proceedings against the accused persons namely Shobha, Ashok, Rakesh Rukamesh and Yogesh, all residents of Village Kudiagarhi in his presence vide document already Ex. Kay14 bearing his signature at point X.
22. PW19 Irfan Tyagi has deposed that he was ward member of 5, Sawar Area Panchayat, Muzzafar Nagar. UP police made inquiry from him regarding the residence of Asraf and Ashif and he stated them that they never resided in the locality.
23. PW26 Nathu Ram has deposed that he was posted as ASI at PS Seema Puri, Delhi. On 16.06.98 he was present at Village Kudiagarhi, Masuri, Ghaziabad, UP as he alongwith his friend namely Sunil Yadav visited there to meet Tek Chand as he is maternal uncle of his friend Sunil. On that day, he had written the complaint of Tek Chand, s/o. Ram Singh, r/o. Village Kudiagarhi, Masuri, Ghaziabad, UP on his dictation and directions which is already Ex.K1 which is in his handwriting and bearing his S.C. No. 483/2017 State Vs. Ashok and others page 17 of 27 signature at point X being subscriber/writer. The said complaint also bears signature of Tek Chand at point Y. He had written the said complaint as stated to him by Tek Chand.
24. After conclusion of prosecution evidence, statement of accused under Section 313 CrPC was recorded wherein he has taken the plea of false implication in the present case. In support of his defence, accused did not lead any defence evidence.
(D) REASONS AND DECISION
25. I have heard the Ld. Addl. PP for the State and Ld. Counsel Sh.
Rashid Hashmi for the accused.
26. It is argued on behalf of accused that the eye witnesses have not at all supported the case of the prosecution and hence, accused is entitled to acquittal. Further, there is no other scientific evidence against the accused which can prove his guilt.
27. In view of the above arguments and contradictions pointed out, it is argued that the entire prosecution story is concocted one and all the accused has been falsely implicated in the present case by the S.C. No. 483/2017 State Vs. Ashok and others page 18 of 27 police. Therefore, it is prayed that accused may be acquitted of all the charges levelled against him.
28. While opposing the arguments of the accused, Ld Addl PP Sh Ram Pyara for the State has argued that the eye witnesses have been won over by the accused and that is why they have not supported the prosecution story. It is further argued that during their testimonies recorded earlier, they had supported the case of the trial.
29. I have given a thoughtful consideration to the record and the arguments advanced. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
30. Thus, the cardinal rule in the criminal law is that prosecution has to S.C. No. 483/2017 State Vs. Ashok and others page 19 of 27 prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case.. Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
31. Before adverting to the analysis of evidence which has come on S.C. No. 483/2017 State Vs. Ashok and others page 20 of 27 record, it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
32. The accused has been charged with the offence punishable U/S 302 IPC.
33. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused.
34. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence S.C. No. 483/2017 State Vs. Ashok and others page 21 of 27 between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
35. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
S.C. No. 483/2017 State Vs. Ashok and others page 22 of 27
36. Further, pertinent to mention here that in cases like death/murder generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The jaw regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature S.C. No. 483/2017 State Vs. Ashok and others page 23 of 27 and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused."
37. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principles of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
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 explained on any other hypothesis except that the accused is guilty.
S.C. No. 483/2017 State Vs. Ashok and others page 24 of 27 (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except that 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.
38. Now, I shall proceed to deal with the arguments of defence and determine if the circumstances in this case point towards the guilt of accused or his innocence.
39. The main argument of the defence is that the eye witnesses as per the prosecution story have not at all supported the case of the prosecution, therefore, prosecution has miserably failed to prove the charge against the accused.
40. I have carefully perused the testimonies of PW1 Tek Chand and PW5 Inderjeet Singh, who are the eye witnesses to the entire incident, as per the prosecution case. Both these witnesses did not support the prosecution story and were accordingly declared hostile S.C. No. 483/2017 State Vs. Ashok and others page 25 of 27 by Ld. State Counsel. Even during their cross examination, both these witnesses have denied the suggestion put to them by Ld. State Counsel. The remaining witnesses are only corroborative witnesses who have merely proved the subsequent facts after the alleged incident, however, it would be highly unsafe to consider their testimonies in the absence of any cogent evidence.
41. It is pertinent and interesting to note that both these witnesses PW 1 and PW5 had supported the prosecution case during their testimonies recorded during the trial conducted qua accused no. 2 to 5 earlier, however, their testimonies were not considered because accused Ashok, Shobha and Yogesh were able to prove their plea of defence i.e plea of alibi and hence, accused no. 2 to 5 were accordingly acquitted giving them benefit of doubt.
42. In view of the above discussion, it is clear that there is no cogent evidence either ocular or scientific evidence which could connect the present accused with the alleged crime. Therefore, this court is of the considered opinion that prosecution has utterly failed to prove its case so as to complete the chain much less to prove the same beyond the pale of reasonable doubt against the accused. Resultantly, accused is entitled to be acquitted by giving them the S.C. No. 483/2017 State Vs. Ashok and others page 26 of 27 benefit of doubt and accordingly acquitted of all the charges.
43. In view of the statutory requirement of section 437A Cr.P.C. the accused are directed to furnish a bail bond in the sum of Rs. 50,000/ with one surety each of like amount to the satisfaction of the court, for a period of six months, to appear before the appellate court, if so required.
Digitally
signed by
POORAN
POORAN CHAND
CHAND Date:
2019.11.29
15:17:54
ANNOUNCED IN THE OPEN
+0530
COURT ON 28.11.2019 (POORAN CHAND)
ADDL.SESSIONS JUDGE02
(WEST):DELHI
S.C. No. 483/2017 State Vs. Ashok and others page 27 of 27