Delhi District Court
State vs . 1 Sumit S/O Shankar Singh on 25 July, 2013
IN THE COURT OF SH. J. R. ARYAN, DISTRICT & SESSIONS JUDGE,
NORTH EAST DISTRICT,KARKARDOOMA COURTS, DELHI
SC No.62/09
Unique ID Case No.02402R0053092009
State Vs. 1 Sumit s/o Shankar Singh
r/o H. No.E-146, gali no.4,
Ashok Nagar, Delhi.
2 Jawala Prasad @ Julie
s/o Late Sh. Sohal Lal
r/o A-54, gali no.4,
Hardev Puri, Delhi.
FIR No. 364/2008
PS: M S Park
U/s 302/365/201/34 IPC
Date of institution of case :- 30.03.2009
Date of reserving the case for orders :- 18.07.2013
Date of passing of orders :- 25.07.2013
JUDGEMENT
1. A charge of kidnapping/abduction with further charge of murder and finally a charge of causing disappearance of evidence with an intention to scree themselves of crime has been tried against two accused namely Jawala Prasad @ Julie son of late Sh.Sohan Lal and second accused Sumit son of Sh.Shankar Singh. Charge in brief is that:-
2. On 19.10.2008 at around 9pm both accused abducted victim-deceased Pankaj from near Hyundai showroom, 100 foota road, Nathu Colony, Delhi by forcibly putting him in a maruti van DL-3CR-3171 and taking him away. Murder of victim Pankaj was committed by both accused in the intervening night of 19th 20th, October, 2008 and then dead body of victim Pankaj was thrown and weapon used in committing murder was also thrown and thereby both accused intended to screen themselves of the punishment of the offence committed by causing disappearance of the evidence. Accordingly, they were SC no.62/09 Page 1/21 called upon to be tried and punished for these offences punishable under Section 364, 302 and 201 read with Section 34 IPC. Both accused claimed trial.
3. The prosecution case is based upon circumstantial evidence. FIR in this case was lodged by PW3 Kevlanand, who is the brother of deceased Pankaj. This report was lodged on 21.10.2008 that is two days after the incident to the effect that informant Kevlanand was resident of A269, Gokalpuri, Delhi and used to drive a RTV vehicle. His brother deceased Pankaj Kumar also used to drive a maruti van DL-3CM-9664 which was attached with Hare Krishna Travels, 100 foot road, Chander Lok. Accused Sumit also used to ply his vehicle as associated with Hare Krishna Travels and thus deceased Pankaj and Sumit became friends. About three months before the incident Pankaj became ill and stopped plying his vehicle. Accused Sumit and Julie @ Jawala Prasad came to house of informant and had a talk with Pankaj and then offered to take maruti van of deceased Pankaj on hire basis. Pankaj agreed and delivered his maruti van to both accused and accused agreed to pay him Rs.4,000/- per month. Both accused then returned the vehicle maruti van and parts of vehicle were found replaced and both accused even did not pay hire charges. On those issues an altercation happened between deceased Pankaj and two accused persons.
4. On 19.10.2008 at around 9pm Pankaj received a call on his mobile phone from accused Julie and Pankaj was asked to come and take his money. Pankaj alongwith a boy Surender (PW6) residing in neighbourhood then reached Hyundai showroom, 100 foota road, Nathu Colony, Delhi. Surender stopped at some distance. After a while both accused Julie and Sumit arrived in a maruti van and picked up an abusive altercation with Pankaj and started assaulting him, put him by force into their maruti van and drove away their vehicle. Kevlanand further mentioned that all these facts were told and narrated by Surender to him. Accordingly, FIR under Section 365/34 IPC was SC no.62/09 Page 2/21 got registered by SI Ajeet Singh PW24 and he took up investigation. SI got a message flashed to Police Stations about this abduction. He recovered maruti van DL-3CR-3171 golden colour on 24.10.2008 opposite crown plaza, Mathura Road, Sector 20A, Faridabad, Haryana, in front of Choudhary Auto sales. Investigation had revealed that this maruti van had been used by accused persons in abducting victim. Accused Sumit and Julie were found absconding and further investigation was taken over by Inspector Jaivir PW28 on 06.11.2008.
5. Inspector Jaivir obtained arrest warrants against both accused on 11.11.2008. On 12.11.2008 accused Julie @ Jawala Prasad surrendered in the Court of MM, Karkardooma Courts, Delhi and with the permission of Court this accused was interrogated and accused Jawala Prasad came up with a confession which was recorded in writing. According to this confession both accused had abducted victim Pankaj and took him to Ghaziabad, UP and brought him to Faridabad, Crown Plaza and their maruti van DL-3CR-3171 was dropped and Pankaj was then taken in some other vehicle and was taken to Gorakhpur, UP, where he was killed in jungle area and he further confessed that he could get the body of deceased recovered. It is further prosecution case that accused Jawala Prasad then led the police party to area Gang Nehar, Murad Nagar, UP and got recovered a dead body which was in the form and nature of skeleton. Panchnama of those proceedings of recovery of dead body was prepared by SI Ameen Khan PW12, who had been joined in these recovery proceedings from PS Newari, District Ghaziabad, UP. Seizure memo Ex. PW2/F was prepared. Skeleton/body was got subjected to post mortem and report was prepared to the effect that body/skeleton was in decompose condition. Bones were preserved. Cause of death could not be ascertained.
6. It is further prosecution case that later on identity of that body/skeleton was got established through DNA testing that it was deceased Pankaj. This SC no.62/09 Page 3/21 DNA testing had been taken up by PW25 Assistant Director, DNA Unit, FSL Rohini, Delhi and DNA of bone and blood sample of Smt. Prabha Devi, mother of deceased was taken up and report Ex. PW25/A was prepared which opined that deceased was biological son of Smt. Prabha Devi. Meanwhile, other accused Sumit was also arrested and charge sheeted. Maruti Van vehicle DL-3CR-3171 was also got examined at FSL, Rohini and some blood stains were found in the vehicle van and accordingly report was prepared. Both accused were then charge sheeted.
7. Prosecution accordingly presented its charge through incriminating evidence of motive and that motive was that both accused having taken up maruti van of deceased for plying on hire charges basis about three months prior to the incident, they did not pay the hire charges at Rs.4,000/- a month and rather when they brought vehicle back to deceased, its parts were found replaced and those issues became the subject matter of an altercation between deceased and accused persons.
8. Another incriminating circumstance is the last seen theory where witnesses PW6 Surender and PW13 Deep Chand had seen deceased taken away by both accused persons on 19.10.2008 at around 10pm from near Hyundai showroom, 100 foota road, Nathu Colony, Delhi and accused had used a golden colour maruti van for abducting the victim.
9. Further incriminating circumstance is that both accused named in the FIR which had been registered on 21.10.2008 were found absconding from their addresses and finally accused Jawala Prasad surrendered in Court on 12.11.2008 and pursuant to a confession/disclosure he got recovered dead body/skeleton from Gang Nehar, Murad Nagar area, UP and that recovery and discovery of fact pursuant to his confession became admissible under Section 27 of the Evidence Act
10. And finally DNA report established that dead body/skeleton was deceased Pankaj.
SC no.62/09 Page 4/2111. In this trial 28 prosecution witnesses have been examined. All the prosecution witnesses have supported the prosecution case. A brief account of this evidence may be recorded as below:
12. PW-2 a police official from PCR is a witness who had reached the place of incident soon after he received intimation of call. According to this witness on 19.10.2008, he was posted with North-East Zone PCR. At around 10.25 pm on receiving a call that a person had been beaten near Chanderlok bus stand and after being caused a bullet injury in his leg that he had been taken away in a Maruti van, this witness with staff reached that place and that was 100 foota road near Hyundai showroom. SI Ajit Singh from PS M.S. Park also arrived. In cross examination witness admitted that no blood was seen lying on the spot. Defence counsel referring to this evidence as well referring to DD 48A Ex.PW24/A recorded in PS M.S. Park at 10.25 pm argued that whereas incident conveyed in this PCR call was that 3-4 boys had taken away a person after causing a beating and then a firearm bullet injury in his leg had taken away that person in a Maruti van golden colour, the evidence of PW6 Surender who claimed to have seen two accused Julie and Sumit to have taken away victim deceased Pankaj in a Maruti van golden colour from near Hyundai showroom, Durgapuri on 19.10.2008 at around 9.30 pm would be an evidence inconsistent with the incident recorded in this DD 48A when PW6 has not stated in evidence any such incident where two accused persons of this case had caused any bullet injury in the leg of the victim. Counsel submitted and argued that this PCR call receive at 10.25 pm on 19.10.2008 and consequently DD48A was recorded in police station would bely the evidence of PW6 that he had seen two accused of the present case to have abducted victim deceased Pankaj at around 9.30 pm on 19.10.2008.
13. PW3 Kewalanand is the brother of deceased and informant on whose report dated 21.10.2008 Ex.PW3/A that FIR of the present case Ex.PW15/A SC no.62/09 Page 5/21 was registered at 22.25 hours. He is a material witness on the prosecution charge on the point of motive as well on the point of abduction of deceased Pankaj by accused persons. Witness deposed that his brother Pankaj used to have a Maruti van DL-3CN-9664 and Pankaj used to operate that van as attached with Hare Krishna Travel. Accused Sumit and Julie also used to operate a vehicle attached with Hare Krishna Travel. Three months before the murder of Pankaj, witness deposed, that Pankaj fell ill and was unable to operate his Maruti van and both accused Sumit and Julie came to their house and asked Pankaj to give his vehicle on contract and Pankaj agreed to handover his vehicle to accused and accused agreed to pay Rs.4000/- a month to Pankaj in lieu of vehicle provided to accused persons. Witness deposed further that after one or one and a half month accused persons brought vehicle van and vehicle was found not even roadworthy. Accused did not pay the amount to Pankaj and there was an altercation. Pankaj got the vehicle examined from a mechanic and found that some parts of the vehicle had been replaced. Pankaj asked both accused to get those parts restored and pay the outstanding amount.
14. Witness deposed further that on 19.10.2008 accused Julie contacted Pankaj on his mobile phone and asked Pankaj to come and collect his outstanding amount. Before leaving the house Pankaj told this witness about the phone call received from Julie and informed this witness that he was going to collect the amount from Julie. While leaving the house Pankaj took Surender, living in neighbourhood, alongwith. Pankaj and Surender then reached Hyundai showroom, Chanderlok spot and Surender there saw accused persons entering into altercation with Pankaj and they forcibly took Pankaj in a golden colour Maruti van and took him away. Accused threatened to beat Surender also but he managed to run away. Surender came to the house of this witness and narrated the incident. Witness along with 2 or 3 persons then reached Hyundai showroom and could not trace his brother SC no.62/09 Page 6/21 Pankaj. Witness further deposed that he then went to the house of one Pawan Kumar who used to reside nearby Hyundai showroom. Pawan used to be a driver on the vehicle of his brother Pankaj and witness inquired about address of Julie from Pawan. Witness then reached house of Julie but house was found locked. Witness tried to contact Julie on his mobile phone but the call was disconnected. Witness then went to PS Gokalpuri where he was advised and directed to contact PS M.S. Park. Witness reached PS M.S. Park and he lodged a report which he proved as Ex.PW3/A which was recorded on 21.10.2008. He further deposed that on 20.10.2008 a Constable was provided from M.S. Park for the search of his brother Pankaj but Pankaj could not be traced.
15. Witness deposed further that he came to know that brother in law of Julie was residing in Faridabad and they went to his house at Faridabad but he was also found not present in the house. Witness came to know that brother in law of Julie had a shop at Mathura road, Faridabad and this shop was in the name of Chaudhary Automobile. Witness and the police party then reached that shop and there Maruti van no. 3171 was found parked. SI Ajit Singh and two police official were there in this raid and that Maruti van was towed to PS M.S. Park. Witness identified his signatures on the seizure memo of this vehicle prepared in PS M.S. Park.
16. Witness further deposed that accused Julie then surrendered before court and on being informed from PS M.S. Park he joined further investigation. On 13.11.2008 this witness, accused Julie and police party consisting SHO Insp. Jaivir Singh an two Constables proceeded from PS M.S. Park for Muradnagar, Gang Nehar and they reached that area Gang Nehar, Muradnagar and accused Julie pointed out a spot where accused had thrown dead body of Pankaj in bushes. Dead body was recovered from that spot and witness identified body that of his brother Pankaj. It was only a skeleton and witness identified body that of Pankaj from the clothes. Police SC no.62/09 Page 7/21 official from local PS Niwari were called through phone. Skeleton and clothes were taken into possession. Skeleton was taken to mortuary and post- mortem was conducted. After post-mortem skeleton/ body was received by this witness. Witness then proved the pointing out memo as Ex.PW3/C of the spot of recovery of the skeleton and that spot as pointed out by accused Julie.
17. Witness when cross-examined he was confronted with earlier police statement on the facts that vehicle brought back by accused had been found with parts replaced and Pankaj had got the vehicle examined by a mechanic on those facts. He was further confronted on the facts that when Pankaj left the house witness had asked as to where he was going and Pankaj told him that he had received a phone call from Julie and Julie had asked Pankaj to come and collect the money and that Pankaj was going to collect the money. He was also confronted with previous police statement if Surender came to the house of this witness and informed the incident. He is further confronted with a fact that immediately witness went to the house of Pawan, who used to drive the vehicle of Pankaj, to inquire the address of Julie and that after having inquired address of Julie from Pawan that witness went to the house of Julie and found the house locked. He was further confronted with earlier police statement that he tried to contact Julie on his phone but Julie disconnected the call. It has been argued by defence counsels that facts confronted to the witness were thus an improvement in the deposition before the Court and if that improved version is excluded, if affects credibility of the prosecution case. It is further argued that prosecution ought to have proved the mobile phone call details of accused Julie as well of deceased Pankaj and that could have supported the prosecution theory if on 19.10.2008 Pankaj had received a call from Julie before he proceeded from his house at around 9/9.30pm. Call details would have proved if PW3 had tried to contact Julie and Julie disconnected the calls. In further cross-examination this witness was put a defence plea that infact accused had not taken the vehicle of SC no.62/09 Page 8/21 deceased on hire basis. Counsel argued that hiring of the vehicle and consequently non-payment of hiring charges when was being pressed as a motive by prosecution then relevant witness Hare Krishna Travel ought to have been examined or even the driver Pawan could have been examined if he was driving the vehicle of deceased Pankaj while it was attached with Hare Krishna Travels and was in the hiring possession of accused Julie. Witness deposed in cross-examination that Pankaj had not taken Surender PW6 in the presence of this witness and this witness had not accompanied Pankaj. He admits that no call was given to the police even when Surender informed witness about the incident and despite the fact that witness claims to have gone to Hyundai showroom spot alongwith Sonu, Laxman and Yashpal and he could not trace his brother. Witness had a mobile phone and Surender too had a mobile phone. Counsel argued that it was an unnatural human conduct and behaviour that no police call was made even when brother of this witness was found to have been taken away by force by accused persons in a vehicle. Witness says in cross-examination that Surender had come to his house in about half an hour of the incident and had narrated the incident.
18. On the fact of recovery of dead body/skeleton at the instance of accused Julie witness states in cross-examination that he received a call on 12.11.2008 from Inspector Jaivir Singh to reach Police Station M S Park as police party has to proceed to Gang Nehar area Murad Nagar. Accordingly witness reached Police Station M S Park at around 8 or 9am and a police team comprising Inspector Jaivir Singh and two Constables moved from Police Station in private vehicle. Defence counsel from the cross-examination of witness on this prosecution case of recovery of dead body/skeleton at the instance of accused Julie has argued and pointed out contradiction whereby that part of the prosecution story becomes entirely doubtful. PW-3 in cross- examination deposed that they reached Murad Nagar, Gang Nehar in noon time and before the dead body had been recovered that police officials of PS SC no.62/09 Page 9/21 Newari were called. He further states that call was given by phone. In the next date cross-examination that is 22.04.2010 witness states that PS Newari police officials were called when the police team alongwith this witness had already located the dead body. Witness states that he identified skeleton as of his brother because of the clothes available on that skeleton as those clothes belonged to his brother. He admitted that without clothes skeleton was unidentifiable.
19. PW11 ASI Parmod Kumar, who was part of the police team during recovery of this skeleton has deposed that on 13.11.2008 police party comprising IO and Constable Milap Chand and this witness and accused Jawala Prasad first reached Police Station Niwari, District Ghaziabad, UP and after informing concerned Police Station they set out for recovery of dead body and they reached Ganga Nehar and accused there pointed out a spot where from dead body/skeleton was recovered lying in the bushes. On that occasion Police Station Newari was informed by the Investigating Officer and then photographer was called to take photographs of that spot. Police team of concerned Police Station Newari also arrived and Incharge of that team took possession of the dead body. In cross-examination PW11 stated that having reached Police Station Niwari, during discussion about the case, brother of deceased had been shown some clothes of deceased and the witness identified those clothes as those of deceased. Witness further deposed that clothes of deceased were in a sealed parcel, seal was opened and then those clothes were shown to witness. Witness specifically admits in cross- examination that no police official from Police Station Newari accompanied them to reach Gang Nehar for recovery of the dead body.
20. PW12 is police officer from Police Station Newari, Ghaziabad, UP.
According to this witness, SHO Jaivir Singh with staff when reached Police Station Newari on 13.11.2008 and after discussion of the case that this witness was joined alongwith a Constable Dharam Singh and entire team SC no.62/09 Page 10/21 proceeded Gang Nehar and then accused Julie pointed out a spot and dead body/skeleton was recovered. Witness further deposed that he prepared panchnama which he proved as Ex. PW12/A. This witness then prepared a written request addressed to CMO, District Hospital, Ghaziabad, UP for conducting post mortem on the body and he proved that request as Ex. PW12/C. In cross-examination witness deposed that all police officials from Police Station M. S. Park when reached Police Station Newari in the morning at around 8.30am they were in civil clothes. Their arrival had been recorded in the daily diary. This witness alongwith Constable Dharam Singh had proceeded for Gang Nehar spot on his motorbike. Witness admitted that he had not joined Inspector Jaivir as witness in the panchnama and other documents prepared on the spot. Witness further deposed that skeleton was unidentifiable except from the clothes which were on the body. He admitted in cross-examination that Delhi Police officials had not prepared any document and had not obtained his signatures on any such document and finally his statement was recorded by Delhi Police on 11.01.2009.
21. PW16 Constable Dharam Singh gave entirely new version of the fact of recovery of dead body. According to this witness on 13.11.2008 he joined SI Ameen Khan PW12 and a dead body/skeleton was recovered from bushes in Gang Nehar area of Murad Nagar, UP. Name of the deceased was known as Pankaj. This witness had signed panchnama which was prepared by SI Ameen Khan. In cross-examination witness stated that he was informed by SI Ameen Khan that dead body was lying there and 10-12 nearby villagers were also present when that dead body was recovered. He further specifies that body had been recovered at around 8.15/8.30 am and at around 10am he had removed body to mortuary. SI Ameen Khan had taken signatures of 4-5 public persons on panchnama. He had removed the dead body to mortuary in a tempo. He categorically stated that Delhi Police did not meet him in any connection with this case. Inspector Jaivir Singh from Police Station M S SC no.62/09 Page 11/21 Park had never met him at any point of time either on the spot on 13.11.2008 or subsequent at any point of time till date. PW17 Constable Milap Chand, part of the police team which had proceeded from Police Station M S Park has deposed that on 13.11.2008 police team alongwith accused reached Police Station Newari and after informing that police station about the incident, the team proceeded for Murad Nagar, Gang Nehar and complainant Kevlanand was also with them. Witness further deposed that at the instance of Jawala Prasad dead body was recovered from bushes and Kevlanand identified body as that of his brother Pankaj. Body was identified from clothes which were lying nearby and Kevlanand identified those clothes which Pankaj was wearing on 19.10.2008. Witness deposed that Police Station Newari was then informed through phone and police officials from that Police Station arrived and they took clothes of Pankaj in possession and prepared panchnama of the body. Defence counsel pointed out that whereas PW17 deposes presence of the clothes of the deceased lying on body nearby skeleton and Kevlanand to have identified skeleton as that of Pankaj from the clothes found there, PW11 had stated that some clothes were shown to Kevlanand in Police Station Newari and those clothes had been take out of a sealed pulanda when Kevlanand had identified those clothes as belonging to his brother deceased Pankaj. Counsel argued that these serious contradictions must render recovery of dead body/skeleton at the instance of accused Julie entirely doubtful and unbelievable. Counsel argued that PW16 Constable Dharam Singh has completely ruled out presence of any police official from Delhi Police during the recovery of skeleton. According to this witness skeleton as well clothes had been recovered by SI Ameen Khan in the company of this witness alone. Counsel argued that even Inspector Jaivir Singh PW28 has not deposed in his examination in chief if before reaching the Gang Nehar, Murad Nagar area for the recovery of body pursuant to disclosure given by accused Julie, the team had not gone to Police Station SC no.62/09 Page 12/21 Newari. On this point witness deposed that on 13.11.2008 this witness alongwith HC Pramod, Constable Milap Chand, accused Julie and Kevlanand went to Gang Nehar and at the pointing out of accused Jawala Prasad they searched dead body and a skeleton was found lying in bushes. Clothes of the deceased were lying near skeleton. Witness then contacted SO PS Newari and witness prepared pointing out memo as well identification memo and site plan of that place of recovery and only then SI Ameen Khan and Constable Dharam Singh arrived that spot. SI Ameen Khan then prepared panchnama and other documents. Counsel argued that different version have come before the Court as regards recovery of skeleton and in such circumstances it was not possible to rely upon the testimony that recovery of skeleton was effected at the instance of Julie pursuant to his disclosure given to Inspector Jaivir Singh on 12.11.2008. Counsel challenged veracity of the prosecution case regarding the confession/disclosure given by accused Julie. According to prosecution case Julie surrendered in Court of ld. MM at Karkardooma Courts on 12.11.2008 and he was then interrogated and he confessed his crime and gave a confession/disclosure which was recorded by Inspector Jaivir Singh. Contrary to case PW17 Constable Milap Chand has stated in cross-examination that he had seen accused Jawala Parsad in Police Station M S Park on 11.11.2008 and accused had been interrogated by Investigating Officer on 11.11.2008 in the night. Counsel argued that if accused was in police custody on 11.11.2008 contrary to the prosecution case that he had surrendered in Court on 12.11.2008, no sanctity could be attached to confession/disclosure which is alleged to have been volunteered by the accused.
22. Another important witness in this case is PW6, who claims to have seen deceased with accused persons and then deceased was never seen alive till his skeleton was recovered. Witness deposed that on 19.10.2008 at around 9.30 pm, he accompanied Pankaj his friend to 100 foota road near Hyundai SC no.62/09 Page 13/21 Showroom, Dharampura. Pankaj had told this witness that Julie and Sumit would be paying him amount due against them. Witness states that in front of Hyundai showroom he saw a maruti van golden colour parked and Julie and Sumit were present there. Witness saw both accused entering into an altercation with Pankaj while this witness was standing at a little distant point. Witness saw both accused started beating Pankaj and put him in maruti van. Witness became afraid and ran away from there and because of fear he did not go to Pankaj's house and only on the next day morning that he conveyed incident to Kevlanand, brother of Pankaj. Witness identified both accused persons involved in this incident. In cross-examination witness stated that he had not known accused Julie prior to this incident. He further admitted that he had not been able to note down and thus did not know the number of golden colour maruti van. He did not raise hue and cry though the incident of quarrel had lasted for about 4 to 5 minutes. He did not give 100 number call and even did not inform his own family members. He also admitted that other accused was also even not known to him before this incident. Witness admitted that police had recorded his statement on 22.10.2008. Defence counsel argued that where witness did not know either of the two accused, by face or name, prior to this incident of 19.10.2008, identity of accused through a TIP would have suggested truthfulness of his evidence that it was these two accused persons, who had infact abducted Pankaj. Counsel argued that identification of accused in Court was of little value until it was supported by a pre conducted and arranged TIP. Counsel then challenged the truthfulness of witness from his unnatural conduct in not informing anybody about the incident. Counsel submitted that witness had accompanied victim Pankaj being a close friend and if any such incident of victim Pankaj first given beating and then taken away by force in vehicle by two accused persons, a natural human behaviour to react was to inform the family members of victim. Counsel argued that PW3 Kevlanand rather SC no.62/09 Page 14/21 contradicts witness when he deposed that Surender came to their house in about half an hour of the incident and conveyed incident and consequently Kevlanand with three persons had gone to the place of incident but could not trace his brother Pankaj. Counsel further argued that initial DD 48A recorded in Police Station M S Park at 10.25pm on 19.10.2008 is to the effect that one person after being given beating by 3-4 boys and then after being hit by firearm bullet in his leg had been taken away in a maruti van, golden colour and that place of incident was described as Chanderlok bus stand ahead of Durgapuri crossing. Counsel submitted if it was a firearm bullet fired on the leg of victim then testimony of PW6 becomes doubtful where witness has not claimed to have seen any such weapon fired during the incident. Counsel further argued that 161 CrPC statement of witness has been recorded on 22.10.2008 and no word has been spoken by witness or sought to be explained by IO for delay and it casts a serious doubt in testimony.
23. Ld. Addl. PP on the other hand strongly argued that witness was a young boy age around 15 and was only a student. Being a young boy and only a student if because of fear in mind as having witnessed incident wherein his friend Pankaj was taken away by accused persons, his no reaction till next day morning when he conveyed incident to brother of deceased should not be viewed as a serious unnatural human behaviour. Witness had no enmity or motive to implicate accused persons falsely. Witness has fairly admitted in cross-examination that he had not known both accused persons by face or by their names prior to the incident. It is argued that where the witness had an opportunity to see the incident taking place and in cross- examination duration of the incident has been got clarified which the witness stated to have continued for about 4 to 5 minutes then he had sufficient opportunity to have a look upon accused persons and in the absence of a prior TIP, witness identifying accused suffers no infirmity and there is no reason to not to believe his evidence.
SC no.62/09 Page 15/2124. Question then arises if "last seen" evidence is believable and what consequential conclusion could be drawn and inferred from this evidence. Defence counsel argued that when statement of PW6 during investigation was recorded on 22.10.2008 and there was no explanation for that delay. It would suggest witness introduced only to create evidence against accused persons. Ld. Addl. PP on the other hand pointed out that witness Surender PW6 had been named in FIR statement to have accompanied Pankaj when Pankaj left his house on 19.10.2008 at around 9pm. I have taken due consideration of both sides contentions. It is a matter of fact that informant PW3 was aware of victim-deceased Pankaj to have left the house on 19.10.2008 at around 9pm. He was informed by Surender about victim Pankaj to have been taken away by accused persons by force after causing beating to him. FIR statement Ex. PW3/A has been lodged with the Police only on 21.10.2008 at 10 pm. Kevlanand tried to explain reason for delay that on 20.10.2008 he visited some other Police Station where from he was advised and instructed to visit Police Station M. S. Park. He further stated that a Police Constable was provided for search and trace of Pankaj but then witness could not trace Pankaj and finally his report was recorded. He further stated that after being informed about incident by Surender and to trace accused Julie, he contacted driver Pawan, who used to drive maruti van vehicle of deceased Pankaj and after coming to know address of accused Julie from Pawan Kumar that when he visited address of accused Julie, he found the house locked. It is argued from prosecution side that may be this witness had a hope and calculation that Pankaj even if taken away by accused persons might come back after sometime and such a consequence of culpable death of Pankaj had not been anticipated by witness and thus explanation for delay stands explained by the witness and there should not be any reason not to believe the prosecution story that these two accused persons had abducted deceased on 19.10.2008 at around 9 or 9.30pm from Hyundai showroom spot SC no.62/09 Page 16/21 and in the absence of no further explanation as to how, when and where they parted company with the deceased, then charge of murder of deceased should be held and found proved from this circumstance. I have considered these contentions.
25. Witness Kevlanand has been confronted with previous statement to Police where the facts and circumstances deposed for explaining delay in lodging report with the police had not come on record. In these circumstances a support and corroboration of this "last seen" evidence could have come on file from prosecution by proving mobile phone call details of deceased and accused Julie and Sumit. Though police official witnesses deposed that call details of the mobile phone of accused provided a clue about their involvement but then no specific evidence has been deposed as to what was the clue and what were those phone call details. I do agree with the arguments of defence counsel that prosecution by withholding these call details can be said to have suppressed an important aspect of the case and an adverse inference is to be drawn. Defence counsel rightly pressed point that if PW3 Kevlanand had contacted Pawan Kumar to trace the address of Julie or that Pawan used to be driver on the maruti van vehicle of deceased, Pawan Kumar would have been a relevant witness to be examined atleast about the fact that Kevlanand had found his brother missing and he suspected accused Julie involved. Pawan Kumar would have been relevant witness on the motive part of the prosecution case that vehicle of deceased Pankaj was with accused Julie and Sumit at a fixed hiring charges since about three months prior to the incident or that there was a dispute between deceased Pankaj and accused persons over the payment of those charges or accused to have got some parts of the vehicle replaced. Accordingly, I find argument of ld. defence counsel carrying force that in the given facts and circumstances it was difficult to place implicit reliance on the testimony of PW6. Another circumstance creating doubt in prosecution case is that DD 48A recorded SC no.62/09 Page 17/21 regarding incident of this case in Police Station M S Park on 19.10.2008 at 10.25pm was that 3-4 persons had taken away a victim boy in maruti van, golden colour after giving beating to the victim and after causing a firearm bullet injury in his leg. This DD had been recorded on the basis of a PCR call and that PCR call had been given by PW7. According to PW7 as he had reached the spot at around 10pm, he was informed by a boy regarding that incident and accordingly he made 100 number call. The only clue from this PCR call is the golden colour maruti van used by culprit in taking away the victim. It has been argued that accused Julie cannot be connected with the incident only by the fact and the reason that he owned a maruti van DL-3CR-3171 which was golden colour.
26. Prosecution pressed another incriminating circumstance that blood stains were lifted from maruti van DL-3CR-3171 and accused had failed to explain presence of those blood stains and FSL report Ex. PW26/A and biological report Ex. PW26/B proved that blood stains were of human origin and its group was determined as 'B'. Witnesses relevant on this fact are PW8 and PW9 and finally PW24 and informant Kevlanand PW3. All these witnessed deposed that on 24.10.2008 they had gone to Faridabad in search of accused and in search of golden colour maruti van which belonged to accused Julie and this golden colour maruti van DL-3CR-3171 was found parked in front of Choudhary Auto Sales, situated at Mathura Road and vehicle was seized and later on it was got examined from FSL wherein blood samples lifted from blood stains found inside the vehicle were reported to be blood stains of human origin and blood group was reported 'B'. Expert witness on this fact is PW26. Defence counsel has assailed this incriminating evidence by pointing out serious contradiction in the testimony of witnesses regarding recovery of maruti van. It is further argued where witnesses admitted that no blood stains were visible on the seat and other parts of the vehicle then lifting of blood sample from such alleged blood stains became SC no.62/09 Page 18/21 doubtful. It is further submitted that biological division report regarding 'B' group of the blood was of no help to prosecution in the absence of blood group of deceased available on record. I have considered contentions on this point from both sides.
27. PW8 HC Omkar Singh is a member of police team which had proceeded to Faridabad on 24.10.2008. This witness deposed in his testimony that local police official while on patrolling had arrived the spot wherefrom maruti van in question was seized and no further information was conveyed at local Police Station regarding vehicle taken away from that spot. PW9 in cross-examination deposed that having reached Faridabad, they went to local Police Station where they got their arrival entry made. Local police officials then accompanied them to the house of Raghunath and then to the spot that is Choudhary Auto Sales wherefrom a vehicle was seized. He further states in cross-examination that finger prints were lifted from the vehicle in Police Station M S Park. PW24 SI Ajeet Kumar, IO deposed that local police while on patrolling had arrived the spot wherefrom maruti van was seized and then local police officials left the spot. In cross-examination he further stated that he did not remember if local Police Station had been informed. Besides these contradictions the recovery of this vehicle van and consequently some blood samples lifted from blood stains available inside the vehicle would be of little help unless the blood by its group was found connected with the blood of deceased. Vehicle found by its colour being golden may not be taken as an incriminating evidence against accused Julie, who is registered owner of this vehicle DL-3CR-3171 until this van was proved and established to have been used in abducting the victim. Admittedly neither in DD 48A nor in FIR and neither in statement of witness Surender that number of this maruti van vehicle had come on record.
28. Counsel Sh. P. L. Behl relied upon Delhi High Court judgement reported as Raj Kumar vs. State 2011 (4) JCC 2818 on the point that motive SC no.62/09 Page 19/21 was to be a relevant factor in criminal case based upon circumstantial evidence. If motive is found proved it would be of great consequence. Absence of motive would be a factor against prosecution. In support of contention that there were serious contradictions, discrepancies and vital improvements in the testimony of witnesses and such an evidence was to be disbelieved, ld. counsel relied upon Supreme Court judgement reported as Krishnan vs. State 2008 DLT ( CRL ) 328. Counsel also relied upon Delhi High Court judgement in a case Ganesh vs. State 2011 (1) JCC 441 on the proposition that motive assumes importance in a case where evidence was only of circumstantial nature. Counsel argued that motive attributed to accused in the present case was not only a weak and insignificant factor, it had not been found proved beyond doubt. Counsel then referred to another Delhi High Court judgement Pawan Kumar vs. State 1992(2) JCC 496 for a proposition that where material prosecution witnesses remained silent for two days then his veracity was to be considered doubtful. I have given due consideration to these arguments.
29. Counsel also assailed the DNA expert report and placed on record a brief synopsis on the point. Emphasis is that where such an expert was examined he was expected to put before the Court all material inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspects of the case by explaining terms of the science so that Court although not an expert may form its judgement on those materials after giving due regard to expert opinion. It is argued that expert report in the present case bereft of any details provided in the report on the basis of which conclusions were drawn, it could not be accepted as conclusions drawn by the expert. It is argued and submitted that if the sample had contaminated, it was not at all scientifically feasible to draw correct and accurate DNA material.
30. Even otherwise as seen above in earlier part of judgement that recovery SC no.62/09 Page 20/21 of skeleton at the instance of accused Julie has not been found duly proved beyond doubt. There were serious contradictions in evidence as to the manner in which recovery of skeleton was effected. To my view prosecution fails to prove its charge that accused persons abducted deceased Pankaj and then committed his murder and caused disappearance of evidence with malafide intention. Accused deserved benefit of doubt. They are acquitted of charges.
Announced in the open Court (J.R. ARYAN)
on this 25th July, 2013 District & Sessions Judge (NE)
Karkardooma Courts, Delhi
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