Delhi District Court
Sc No. 172-09 (State vs . Dharmender Singh Mehra & Anr)) on 24 January, 2011
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr))
IN THE COURT OF SHRI DINESH KUMAR SHARMA
ADDL. SESSIONS JUDGE02(SOUTH)
SAKET COURTS : NEW DELHI.
SC NO. 172/09
Unique Case ID No. 02403R0665842004
State Vs. (1) Dharmender Singh Mehra
S/o Gussain Singh Mehra,
R/o Hydle Gate, Mishra Kunj,
Kath Godam, Nainital,
Uttaranchal.
(2) Subhash Yadav
S/o Ram Shankar Yadav
R/o H. No. 138, Govt. Colony,
Mohammadpur,
New Delhi.
FIR No : 501/04
P.S. : RK Puram
u/Ss. : 302/34 IPC
Date of Committal : 20.12.2004
Arguments concluded on 21.01.2011
Date of Decision : 24.01.2011
JUDGMENT
1.0 The accused persons have been tried for the offence U/Ss 302/34 IPC.
Page 1 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 2.0 The case of the prosecution is that on 26/7/04, on receipt of DD No. 19 (Ex.PW12/A) at 6:30pm SI Chattar Singh (PW12) alongwith HC Anil Pandey (PW19), Ct. Anil Kumar and Ct. Mehtab Singh reached at E128/2, SVM Security Office, Main Market Mohammadpur Village, New Delhi. Sh. Rameshpal Singh (PW10) (hereinafter referred as 'complainant') met at the spot and opened the lock of the office of SVM Security. In the office in first room a person identified by complainant as Om Prakash was found lying dead in a pool of blood with blood oozing out from the mouth and injuries on the face. The shirt of the deceased was found torn. In the inside room, a person identified by complainant as Subhash Yadav (accused) in drunkard position was found lying with blood marks on his shirt and trouser. There was lot of blood stains on the table and the articles were lying ransacked in the office. The complainant, an Assistant SubInspector in Delhi Police, in his statement Ex.PW10/P stated that his wife Sarbati Chaudhary (PW3) is running SVM Security Agency in main market, Mohammadpur Village, for the last 4 ½ years. In this agency there is one supervisor and 25 security guard. Accused Dharmender Singh was working as supervisor. Complainant received a complaint against Subhash Yadav that he had taken liquor on duty. On 26/7/04 the complainant called Dharmender Singh on mobile phone No. 9868227468 and directed that since Subhash Yadav did not perform his duty rightly on previous night, he be changed and Page 2 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) also asked Dharmender to meet him. This mobile number with handset was given by complainant to Dharmender Singh for official work. At around 8:30am Dharmender came to the house of the complainant alongwith Om Prakash (deceased). Dharmender was directed to remove Subhash Yadav from duty with immediate effect and was further directed to deploy another guard in his place. Complainant was further directed that 3 days salary of Subhash Yadav be also deducted as penalty. Dharmender Singh and Om Prakash left thereafter. At around 6:10pm when the complainant reached the office of SVM Security Agency, he found the office locked and Dharmender supervisor was not present there. The complainant used to keep one key of the office and and another key used to be with Dharmender Singh supervisor. The complainant opened the gate and found Om Prakash lying dead. In the inside room Subhash Yadav was murmuring and in both the rooms there were blood stains and articles were lying ransacked. The complainant immediately locked the gate and made a telephone call from a nearby shop of Mahender Singh (PW4). On receipt of information SI Chattar Singh (PW19) alongwith police party reached at the spot. SI Chattar Singh prepared rukka (Ex.PW12/B) and sent the same through Ct.Anil Kumar for registration of the case. In the meanwhile the investigation was entrusted to Inspt. Om Prakash (PW22) and senior police officers reached on the spot. Crime team was called. HC Lal Chand (PW8) lifted two chance prints from the table in the office, one chance print from a fridge and three chance prints Page 3 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) from the glass lying on the table vide report Ex.PW8/A. Ct. Parveer Singh (PW11) took the photographs of the spot Ex.PW11/1 to 8. IO prepared the siteplan Ex.PW22/E at the identification of PW10 Ramesh Pal Singh. The blood stains and earth control were seized from the spot vide seizure memos Ex.PW10/E & PW10/F and were sealed with the seal of OPS. A small scissor (Ex.P2) was seized vide memo Ex.PW10/C. A motorola mobile phone blue colour without battery and sim card having blood stains on it (Ex.P1) was seized vide memo Ex.PW10/D and was sealed with the seal of OPS. The earth control was lifted from the spot, sealed in a pulanda and seized. The broken pieces of glass (Ex.P3) were found lying scattered on the floor with blood stains and the same were seized vide memo Ex.PW10/G. Two glass tumblers (Ex.P4 & P5), one of round shape and the other of squarish shape were seized vide memo Ex.PW10/H and sealed with the seal of OPS. Four quarter bottles of Haywards Fine Whiskey (Ex.P6/14) and another empty plastic bottle Old Adventures Matured Care Rum (Ex.P7) were seized vide memo Ex.PW10/J. A sky blue colour cap with blood stains (Ex.P8) which was identified by the complainant to be belonging to Subhash Yadav was seized vide memo Ex.PW10/K. Two registers were also found on the spot. The register (Ex.P12) seized vide Ex.PW10/L had the details of security guards. In this, page 75 relating to details of Dharmender Singh was found missing. Another register (Ex.P11) of 320 pages was also seized vide memo Ex.PW10/M. In this on 12th page it was found written "Sir I M Page 4 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) sorry....... going to home.....". The complainant identified the handwriting of Dharmender Singh Mehra. The Harrison lock and key (Ex.P9 & P10 respectively) of the office of SVM Security were seized vide memo Ex.PW10/N. The dead body was sent to mortuary for preservation. Inquest proceedings were conducted. The brief facts Ex.PW22/B and Ex.PW22/C was prepared. A request for post mortem (Ex.PW22/A) was made. The dead body was identified by Gyanchand (PW2) and Dinesh Kumar (PW26) vide memos Ex.PW2/A and Ex.PW26/A. On 27/7/04 blood stained clothes of accused Subhash Yadav (Ex.P13 - 15) were seized vide memo Ex.PW10/P6. The Form B of SVM Security was seized on 26/7/04 vide Ex.PW12/C. On 28/7/04 on the basis of secret information, accused Dharmender Singh Mehra was arrested at around 5:10pm at the identification of the secret informer and the complainant vide arrest memo Ex.PW12/D and personal search was conducted vide memo Ex.PW10/P1. The accused was found in possession of a brown colour rexin purse in which he was carrying Trump SIM Card No. 8991683120000093215, a Harrison key, Rs. 250/ cash and identity card of SVM and visiting cards of SVM. Accused Dharmender Singh Mehra was brought to PS RK Puram where accused Subhash Yadav was also found. On the pointing out of accused Dharmender Singh Mehra accused Subhash was arrested vide arrest memo Ex.PW12/E. His personal search was conducted vide memo Ex.PW10/P2. Both the accused persons were sent to Sajdarjang hospital for medical Page 5 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) examination. MLC of Dharmender Singh is Ex.PW13/A. Interestingly, MLC of Subhash Yadav has not been filed alongwith the chargesheet. However, during perusal of police file, I have found it there with lot of cuttings. The blood sample of accused Subhash was seized vide memo Ex.PW12/H and blood sample of Dharmender Singh was seized vide memo Ex.PW12/I. Accused persons made disclosure statements Ex.PW10/P3 and Ex.PW12/F, that while going back from the house of the complainant, Dharmender Singh and Om Prakash met Subhash Yadav and they all went to SVM Security office and contributed Rs. 20/ each for drinking party. Accused Subhash Yadav was sent to bring the liquor and all of them took liquor in the front room of the office. Thereafter, accused Dharmender Singh again gave Rs. 70/ to accused Subhash Yadav and asked him to bring liquor and namkeen. Dharmender Singh still wanted to take more and therefore, he took out rum bottle from the drawer of Rameshpal Singh. This was also consumed by all three of them. During this, accused Dharmender Singh Mehra told Om Prakash that his duty is to be changed. Om Prakash challenged the authority of Dharmender Singh, on which Dharmender Singh started abusing Om Prakash. Om Prakash hit Dharmender Singh with the glass tumbler on his hand, on which the tumbler broke down and Dharmender Singh suffered injuries on his fingers. Dharmender Singh caught hold of Om Prakash with his neck and hit the same forcibly against wall and thereafter, both the accused persons Dharmender Singh and Subhash Yadav forcibly put Om Page 6 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) Prakash down on the earth and started beating him and accused Dharmender Singh with the help of Subhash Yadav throttled Om Prakash to death. Since Subhash Yadav was under the influence of alcohol, accused Dharmender Singh made him to lie in the inner room. Accused Dharmender Singh took out the sim from his mobile from the small scissors Ex.P2 and also removed the battery. He also torn out the biodata from the register and destroyed and flushed it in the toilet. The blood oozing out from the hand of Dharmender Singh spilled on the table and accused tried to wipe it out from his handkerchief. Dharmender Singh disclosed that he took away his blue bag and left the office of SVM Security after locking it from outside and went to New Friends Colony by TSR. Accused Dharmender Singh Mehra got recovered his clothes, mobile battery, bag and cash, Ex.P16 to Ex.P23 vide seizure memo Ex.PW10/P4. During investigation, the prescription slip issued by PW1 Dr. Ganpati Bhomik regarding treatment of injury suffered by Dharmender Singh Mehra Ex.PW1/A dated 27/7/04 was seized vide memo Ex.PW1/B. Dr. Ganpati Bhomik duly identified accused Dharmender Singh Mehra as having approached him on 27/7/04 at around 9am for treatment of his injury on hand. Accused Subhash Yadav also made a disclosure statement during interrogation and confessed to have committed the murder of Om Prakash alongwith coaccused Dharmender Singh Mehra. As per postmortem report Ex.PW9/A the cause of death was asphyxia due to throttling. The exhibits were sent to FSL and after examination FSL report Page 7 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) Ex.PW22/D1, Ex.PW29/A, Ex.PW30/A and PW30/B were filed. The handwriting sample of Dharmender Singh were taken on 28/7/04 vide memo Ex.PW12/K and after examination it with the questioned handwriting the report Ex.PW27/A was filed. The hand and leg finger prints of accused persons were taken vide memo Ex.PW12/J. The finger prints and palm impression report is Ex.PW25/A & PW25/B. The attendance register and identity card of Subhash Yadav was seized vide memo Ex.PW10/P5 on 30/7/04. The seizure memo of blood sample of deceased after postmortem was seized on 3/8/04 vide memo Ex.PW12/G. The call detail record of mobile phone No. 9868227468 Ex.PW7/A1A3 were placed on record. The document regarding allotment of mobile in the name of complainant Ex.PW19/B was seized on 4/10/04. The rent receipt Ex.P3 of the premises was seized on 4/10/04 vide memo Ex.PW19/A. The ownership detail regarding mobile phone No.9868227468 were collected on 7/10/04 and the same were seized vide memo Ex.PW19/C. The telephone No. 26168928 installed at E128/2 at the office of SVM was found in the name of Sarbati and proof in this regard was seized on 11/10/04 vide memo Ex.PW19/D. After investigation, the chargesheet u/Ss 302/201/34 IPC was filed in the court.
Page 8 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 3.0 Being a prima facie case, both the accused persons were charged for the offence u/S. 302/34 IPC. Accused persons pleaded not guilty and claimed trial.
4.0 Prosecution examined 32 witnesses in support of its case. The witnesses examined by the prosecution can broadly be divided into following category:
1) The star witnesses in the present case are PW10 Ramesh Pal Singh, the complainant and PW3 Sarbati, owner of the SVM Security.
2) The witness regarding last seen evidence is PW5 Sh.Bachan Singh.
3) The link witness regarding alleged injuries having been suffered by accused Dharmender Singh at the time of incident is PW1 Dr. Ganpati Bhomik.
4) Formal link witnesses are PW16 Ct. Ravinder, PW17 HC Anil Kumar, PW24 Ct.Hafizullah and PW4 Mahender Singh from whose shop PW10 had made a telephone call to the police.
5) The witnesses of crime team are PW8 HC Lalchand and PW11 Ct.
Praveen (photographer).
6) The prosecution has examined expert witnesses as PW25 Sh. KN Singh, Finger Print Bureau, forensic science expert Dr. Deepa Verma PW27, Kavita Goel PW29 and Sh. V. Shankar PW30.
Page 9 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr))
7) The witnesses regarding mobile phone No. 9868227468 and MTNL phone No. 26168928 are PW6 Vinod Kumar, PW7 Ramesh Chand and PW23 Vinod Kumar.
8) The duty officer, DD writer and Special Messenger have been examined as PW15 Ct. Sunita (DD No. 19), PW21 SI Vishwakarma (DO & DD No. 29A & 31A), PW28 Ct. Pushpender, the Special Messenger.
9) The witnesses regarding identification of dead body are PW2 Gyanchand and PW26 Dinesh Kumar.
10) The witnesses regarding MLC and Postmortem are Dr. Komal Singh PW9, Dr. Jyotsana PW13 (MLC of Dharmender Singh) and PW32 Mahesh, Record Clerk on behalf of Dr. Chander Kant (in respect of finger injuries of accused Dharmender Singh).
11) The police witnesses have been examined as PW12 SI Chattar Singh, initial IO, HC Murari Lal (PW18), HC Anil Pandey (PW19) and IO Inspt. OP Singh (PW22). The scaled siteplan has been got proved by SI Madanpal (PW14). PCR form has been proved by PW31 SI Ram Chander (PCR form destroyed). HC Baljeet Singh has been examined as PW20.
4.1 PW1 Dr. Ganpati Bhomik deposed regarding having examined Page 10 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) accused Dharmender Singh Mehra on 27/7/05 for dressing on his fingers. The first aid and dressing was done with the assistance of compounder. The slip Ex.PW1/A has been duly proved. In the cross examination PW1 stated that blood was coming from finger of accused and he had wrapped a piece of cloth. The witness denied the suggestion that he prepared Ex.PW1/A at the instance of the police.
4.2 PW3 Smt. Sarbati Chaudhary wife of star witness Sh. Ramesh Pal Singh PW10, deposed that she was running a security agency in the name of SVM at E128/2, Main market, Mohammadpur, in a premises taken on rent at the ground floor. The tenanted premised had one room which was bifurcated into two parts. In the cross examination it was stated that the agency was run by her husband. She also stated that her husband i.e. PW10 used to open and close the office. One key of the office used to remain in the custody of the supervisor. In cross examination, PW3 also stated that mobile phone had been given to supervisor / accused Dharmender Singh. She admitted that there is no toilet in the office nor is there any toilet near the shop.
4.3 PW4 Mahender Kumar is a witness regarding telephone call having made by PW10 Ramesh Pal Singh at around 6 - 6:15pm on 26/7/04 from telephone No. 26194498. However, the witness was not aware that to Page 11 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) whom PW10 Ramesh Pal Singh made the call and what conversation he had. 4.4 PW5 Bachan Singh is a material witness. He is the owner of property bearing No. E128/2 and was also running a shop under the name and style of Tokas Department Store. PW5 stated that on 26/7/04 accused Dharmender Singh, Subhash Yadav and Om Prakash had opened the office of SVM between 9:30 - 10am and after about ½ an hour of opening the office, accused Subhash Yadav came to his shop and purchased a packet of namkeen. Around 2:30 - 3pm he had seen accused Dharmender Singh leaving the office in haste with some object beneath his armpit which was like a thaila. Around 6pm, PW10 came to the office and as soon as he opened the lock and peeped into the office, he came rushing to him and told that he felt that somebody was lying in the office. PW5 asked Ramesh Pal Singh to lock the office and inform the police. On opening the office dead body of Om Prakash was found lying inside the office and there was smell of alcohol in the office. Accused Subhash Yadav was lying on a bench in an almost unconscious state. The witness duly identified Dharmender Singh and Subhash Yadav. In the cross examination PW5 stated that his shop is at a corner and is at a distance of 33ft from the office of SVM Security. PW5 stated that he had seen Subhash Yadav on that day at around 9am and then at 12pm. The witness admitted that office was opened sometimes by Rameshpal Singh and sometimes by Sarbati and sometimes by a lady Page 12 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) guard employed by them. In cross examination on behalf of accused Dharmender Singh, witness stated that the exit gate towards the South of the property remains closed by a channel door and one cannot jump the channel to go out from the property. He stated that there is no toilet in the office of SVM. But there is a toilet on every floor of the property. In the property there are three shops and offices and it is frequented by people. PW5 was not able to tell that what clothes accused Dharmender Singh was wearing when he left the office at haste nor was he able to tell the size of the object which he was carrying. The witness was not able to tell if Dharmender Singh was having any injury or blood stains on his person or clothes. It also came in the cross examination of PW5 that when he went with Ramesh Pal Singh to the office of SVM Security before the matter was informed to the police, the door was half open. The witness was also not able to recall that what clothes accused Subhash Yadav was wearing. He stated that he left the spot after about 78 minutes as he developed feeling of vomiting. 4.5 PW8 HC Lal Chand is also an important witness. He had gone with Crime team Incharge and photographer to the place of occurrence. PW8 lifted two chance prints from the table in the office, one chance print from a fridge and three chance prints from the glass lying on the table and proved his report as Ex.PW8/A. In cross examination PW8 stated that he remained Page 13 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) at the place of occurrence from 7:30pm to 9pm.
4.6 PW9 Dr. Komal Singh, CMO Safdarjang Hospital had conducted the postmortem on the dead body of Om Prakash on 27/7/04 at 2:50pm. PW9 stated that on external examination the following injuries were observed:
1. one laceration below the left eye obliquely placed 3.1cm x 3mm.
Clotted blood was present and its margins were abraded.
2. There was one bruise below the right eye 5cm x 1.5cm.
3. Laceration on lower lip on its inner surface 2cm x 1cm x 2cm.
4. One laceration on the upper lip in its inner surface 3cm x 1cm x 1cm.
5. Abrasion on the right elbow 1cm x 1cm.
6. Bruise over the left shoulder 3cm x 1cm.
7. Bruise at the right side of the forehead 3cm x 1cm.
8. Oval shaped wound on the right side of the neck 2cm x 1cm.
9. There was abrasion on left elbow 1cm x 2mm.
It was also mentioned that stomach contained 200ml of watery fluid, mucosa was congested and alcohol smell was present. PW9 opined that the cause of death was asphyxia due to throttling and manner of death was homicide and injury over head was due to blunt impact. All injuries were antemortem and were of the same duration. It was opined that time Page 14 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) since death was approx 22 hours. Postmortem report was proved as Ex.PW9/A. In the cross examination PW9 admitted that death was caused by asphyxia and not by haemorrhage. It was also admitted in the cross examination that the injuries observed on the head could have caused death but Om Prakash died of throttling. It also came in the cross examination that hyoid bone showed the fracture. In a specific answer to the court question Dr. Komal Singh replied that he found the signs of throttling in the neck area and the other parts of the body, though the injuries were mainly on the right and central area of the neck. In another answer to a court question it was stated that there was fracture of third cervical bone, clotted blood on the posterior surface of the crecoid cartilege and both these could not have been possible without pressure on the central area of the neck. It was also admitted that fracture of third cervical bone could not be caused by simple throttling and some blunt impact is required and such impact is not possible by just falling over a concrete floor. However, mere fracture of cervical was also not found sufficient to cause death.
4.7 PW10 Ramesh Pal Singh is a star witness in this case. PW10 Ramesh Pal Singh stated that accused Dharmender Singh was supervisor and Subhash Yadav was a guard in the security agency. On 25/7/04 at night information was received that Subhash Yadav who was posted on duty in Sector 12, RK Puram is not performing his duty properly. On 26/7/04 he Page 15 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) gave the message to supervisor Dharmender Singh on 9868227468 and called him to his house. This mobile was given to Dharmender Singh by the security agency for discharge of his duty. Dharmender Singh was told that there was a complaint against Subhash Yadav and he has to be replaced. Accused Dharmender Singh came to house of PW10 alongwith deceased Om Prakash. Dharmender Singh was told that Subhash Yadav should be marked absent for three days. Thereafter, accused Dharmender Singh and guard Om Prakash left and PW10 Ramesh Pal also left. At about 6:10pm, on the same day when Ramesh Pal Singh reached the office of Security Agency, he found that office was locked and accused Dharmender Singh was not there. Ramesh Pal Singh opened the lock with his key and guard Om Prakash was found lying dead in his office and was bleeding from his mouth. Accused Subhash Yadav was found lying in the setty in the inner room and was murmuring. Ramesh Pal Singh immediately left the office and called PCR from the shop opposite the office. Shortly thereafter, the police came and opened the office from the key of Ramesh Pal Singh. Crime team arrived at the spot and photographs were taken. The exhibits including dry blood, scissors bearing blood stains having one of its blade curved at one end, motorola hand set given to Dharmender Singh for office use, were separately sealed and seized. The battery and chip of the mobile phone was missing. The blood lying near dead body, blood stained piece of floor, piece of sample floor, broken pieces of glasses, two glass tumbler, one circular and the other Page 16 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) squarish, four empty bottles of Hayward whiskey and one empty bottle of rum , were also separately seized and sealed with the seal of OP. The sky blue colour Pcap, two registers were also separately seized. From one of the registers, the biodata of Dharmender Singh was missing and in another register accused Dharmender Singh had written something. The lock and key of the office were also seized. PW10 again joined the investigation on 28/7/04 at about 4:30pm and on the basis of secret information accused Dharmender Singh was arrested on the pointing out of informer and complainant. From accused's possession a rexin purse containing the key of his office, trump card, Identity card, visiting card and a sum of Rs. 250/ were seized. Accused Dharmender Singh was taken to PS and as soon as they reached, accused Subhash Yadav was seen in the premises of PS where he was also arrested. Ramesh Pal Singh stated that on interrogation accused Dharmender Singh disclosed that the blood stained clothes which he was wearing at the time of incident had been hidden at the house of his uncle at New Friends Colony and on his pointing out the bag of blue colour from behind the wooden almirah containing a grey striped shirt, a pant of navy blue colour, a printed handkerchief, Rs. 3000/ in cash and battery of the mobile, sports shoes and socks were seized and sealed. Ramesh Pal Singh stated that on 28/7/04 the steel grey shirt and pant which accused Subhash Yadav was wearing were taken from him before he was sent for medical examination and the same were sealed in a pulanda with the seal of OPS and Page 17 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) seized vide memo Ex.PW10/P6. On 30/7/04, the identity card of Subhash Yadav, photocopy of attendance register was seized. Ramesh Pal Singh identified the case property. He also stated that on 4/10/04, rent receipt of premises, registration papers of SVM and the photocopy of the cash receipt of motorola mobile set were seized. However, it was observed that there was no such seizure memo on the record. In the cross examination, Ramesh Pal Singh stated that on 26/7/04, he had given details of accused Dharmender Singh from the biodata which was given to him as well as to his wife initially and was kept at his residence. However, it was observed by the Court that there was no such biodata on record. The witness denied the suggestion that infact, the biodata from register Ex.P12 was removed and was given to the police. The witness reaffirmed that there used to be only two keys of the office lock. He had one key and another key was shared by his wife and the supervisor. But it used to remain with the supervisor only. The mobile phone was admitted to have been purchased by Ramesh Pal Singh in the name of his daughter. In the cross examination, the witness stated that the police remained at the spot for about 1 ½ hours or 2 hours and they concluded all the proceedings at the spot during this period. It also came in the cross examination of the witness that he was resident of a quarter inside Sec12, RK Puram, inside the PS RK Puram. Ramesh Pal Singh was cross examined on behalf of accused Subhash Yadav on the Page 18 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) ground that the guards and other employers were not registered with the ESI and the wages paid to them. During further cross examination on behalf of accused Subhash Yadav PW10 stated that Subhash Yadav was wearing uniform on the day of occurrence when he saw him in the morning at around 6:30am. Initially PW10 stated that he had received complaint about Subhash Yadav on that day from other guard. However, in further cross examination, Ramesh Pal Singh stated that during morning walk at around 6:30am he saw Subhash Yadav in a drunken position and though he tried to wake him up but he did not wake up. Ramesh Pal Singh admitted that around 9am he went to his office and thereafter, he did not speak to accused Dharmender Singh Mehra. In a specific reply to the questions PW10 Ramesh Pal Singh replied that on 26/7/04 when he reached the office in the evening and opened the door while using the key he did not see whether Subhash Yadav or someone else was lying in the room on setty. He only heard that someone was crying. PW10 also admitted that if the door of the office of SVM is opened and one looks inside from the opened door no one can see inside partitioned room. It is pertinent to mention here that this office had single room which had been divided by a partition into two. He stated that after he opened the door and saw the dead body, he again locked the door within seconds and informed the police at No. 100. PW10 Ramesh Pal Singh stated that landlord PW5 Bachan Singh had come with him to the Page 19 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) security agency. In the cross examination, PW10 admitted that it took about 2025 minutes for the police to reach the spot. He also admitted that around 200 yards away from the security agency office there is doctors clinic. Pw10 Ramesh Pal Singh stated that police left the security agency at 8:30pm after locking / sealing the office by the IO. PW10 stated that accused Subhash Yadav was arrested in his presence on 28/7/04 at PS RK Puram and at that time he was wearing civil clothes which were blood stained and these were the same clothes which he was wearing on 26/7/04 in the evening at the time of incident, and was wearing at the time when he entered with the police. PW10 denied the suggestion that infact he had the motive to kill the deceased as the deceased and the accused persons were demanding the minimum wages, ESI Provident Fund and other benefits. A specific suggestion was put to PW10 that he had killed Om Prakash and falsely implicated the accused persons. PW10 Ramesh Pal Singh denied the suggestion that on 26/7/04 he consumed liquor with the deceased at the office of SVM and after the deceased became incapacitated under the influence of alcohol, he gave merciless beatings to him alongwith the landlord and then locked the door of SVM from outside while deceased Om Prakash was still alive in the office and was fighting for his life.
PW10 made a detailed statement and was cross examined at a great length by the defence. He remained quiet evasive regarding the Page 20 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) management and functioning of SVM Security Services. A great deal of cross examination was done regarding the functioning of SVM Security Services. The perusal of his entire testimony indicates that this witness was trying to conceal the actual fact regarding functioning of SVM Security and he actually seems to be the main person in charge of the same. Though no conclusive finding can be returned regarding this and a separate inquiry may be conducted into this, but, it is very difficult to understand that how a serving Delhi Police official was running a security service alongwith a regular job. I consider that appropriate department may take notice of this and take an appropriate action regarding this. Rather, a detailed inquiry should be conducted so as to find out, if any other serving Delhi police official, is running business.
4.8 PW11 Ct. Parveer Singh, photographer was the member of the crime team and took photographs Ex.PW11/1 to 8 of the place of occurrence from different angles. In the cross examination on behalf of accused Subhash Yadav, PW11 stated that he reached the place of occurrence at 7pm and stayed there till 8pm. PW11 specifically stated in the cross examination that he had only seen the dead body and had not seen any other person at the spot.
Page 21 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 4.9 PW12 SI Chattar Singh had reached on the spot on receipt of DD No. 19 Ex.PW12/A alongwith HC Anil Pandey, Ct. Anil and Ct. Mehtab. He stated that on opening the office with the key of the complainant a dead body was lying inside the office in the first room in the pool of blood and room was ransacked and the articles were lying scattered . There were two rooms with one entrance and exit. They entered the second room where one man was lying in a state of drowsiness. There was smell of alcohol in the room. Other person was identified by complainant as Subhash Yadav. It is pertinent to mention here that PW12 specifically stated that some blood was lying in the second room and someone had removed the blood from the table. PW12 SI Chattar Singh proved the recovery of the articles from the spot and of the seizure memos. PW12 also proved the recoveries effected at the instance of accused Dharmender Singh on 28/7/04. He also proved the arrest of accused Subhash Yadav on 28/7/04. PW12 remained during investigation with IO. In the cross examination PW12 denied the suggestion that office was already opened when he reached at the spot. SI Chattar Singh denied the suggestion that complainant who himself is a police official got the accused persons implicated falsely. SI Chattar Singh admitted in the cross examination that Subhash Yadav was not arrested on 26/7/04 or 27/7/04. He was taken to the PS after 11pm on 26/7/04 and in the wee hours of the morning of 27/7/04, his clothes were seized by the IO. SI Chattar Singh was not aware whether Subhash Yadav went home after his clothes were seized. Page 22 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) PW12 SI Chattar Singh was also not aware whether any investigation was carried out to ascertain about the presence of complainant in his office on 26/7/04.
4.10 PW13 Dr. Jyotsana proved the MLC Ex.PW13/A. In the cross examination on behalf of accused Dharmender Singh, PW13 stated that she cannot say that how old the injuries were when Dharmender Singh was examined on 28/7/04. The injury was CLW over right ring finger of 3cm x 1.5cm x 0.5cm.
4.11 PW14 SI Madan Pal proved the scaled siteplan as Ex.PW14/A. In the cross examination PW14 admitted that there are two entries to the compound. However, the another entry generally remains closed. He also found it closed at the time when he reached at the spot. PW15 Ct. Sunita proved DD No.l9 as Ex.PW12/A. PW16 Ct. Ravinder Tiwari had taken the exhibits to FSL on 17/8/04. He stated that the case property remained intact till it remained in his possession. PW17 HC Anil Kumar had taken the specimen finger prints to Finger Print Bureau on 26/8/04. PW18 HC Murari Lal was a witness to the seizure of blood sample of accused persons. PW19 HC Anil Pandey deposed regarding having gone with the accused persons for their medical examination. He also went alongwith the IO and Page 23 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) accused Dharmender Singh to PW1 Dr. Ganpati Bhomik. This witness also proved the seizure of certain documents regarding SVM office and details of MTNL and mobile phone. PW20 HC Baljit Singh MHC(M) proved the deposit of the case property. He denied the suggestion that the entries have been tampered with to suit the investigation. PW21 SI Vishan Lal proved the carbon copy of FIR and DD No. 29A and DD No. 31.
4.12 PW22 Inspt. Om Prakash, IO formally proved the investigation conducted by him. He made a detailed statement and was also cross examined by defence at a great length. PW22 after having narrated the proceedings conducted on 26/7/04 stated that blood stained clothes i.e. pant, shirt and a underwear of accused Subhash Yadav were sealed in a pulanda with the seal of OPS and seized vide memo Ex.PW10/P6. He proved the arrest of accused Dharmender Singh and accused Subhash Yadav. He also proved the recovery of articles at the instance of Dharmender Singh Yadav. IO stated that the finger and palm prints of both the accused were taken. Specimen handwriting of accused Dharmender Singh were also obtained. Detailed cross examination of IO was done by the defence. In the cross examination, IO admitted that there is no evidence regarding blood group of the accused persons and that of deceased. He also admitted that though blood was found on the exhibits but the species of the blood is not Page 24 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) mentioned. PW22 IO stated that the distance between the spot i.e., the office and the shop from where PW5 had allegedly sold namkeen etc. was about 78 metres. There were other shops and offices adjacent to the office and security agency. He admitted that none of the occupants of other shops and offices adjacent to the office of the Security Agency heard or saw anything. No shout or sound of fight were heard by any of the adjacent shop owners / occupants of offices adjacent to the security agency as none of them gave any statement to him in this regard. PW22 admitted that he had taken finger print of Subhash Yadav on 28/7/04 in the PS. It was admitted that no finger print was found on the seizure. IO admitted that he did not ascertain the address of the two partners of SVM Priya Baiju and Anita Singh nor did he record the statement of these two persons regarding the key of the office. IO stated that he cannot say whether Priya Baiju and Anita Singh were having one key each of the office of security agency. IO admitted that Subhash Yadav was medically examined on 28/7/04. Regarding the cap recovered from the spot, IO stated that only complainant had stated that the cap belonged to Subhash Yadav. He admitted that in the scaled siteplan Ex.PW14/A no reference point was shown with regard to the settie or of Subhash Yadav. However, he voluntarily stated that the point of HT39 shows settie where accused Subhash Yadav was lying. IO could not recall if accused Subhash Yadav was medically examined on Page 25 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 26/7/04. He also did not remember where the picture Ex.PW22/DA, PW22/DB, PW22/DC and PW22/DD were taken. He could not recall when and where they were taken. He again stated that perhaps the pictures were taken on 27/7/04 before the blood stained clothes of the accused were taken. It is pertinent to mention here that these photographs are the photographs where accused Subhash Yadav was standing in blood stained clothes. IO admitted that the photographer of the crime team had also come to PS RK Puram from the spot. IO admitted that crime team officials were with him uptill about 11pm. Inspt. Om Prakash denied the suggestion that he had falsely prepared the case against accused Subhash Yadav in order to shield the complainant, as he belongs to the police department. He was not aware if Subhash Yadav had been complaining about complainant not paying ESI, PF or minimum wages. In cross examination on behalf of Dharmender Singh Mehra PW22 stated that he had made enquiries from the people of the spot if they heard any commotion from the room of incidence. In the cross examination, IO stated that as per his investigation, accused Dharmender Singh was living in the same premises where incidence had taken place and he was informed about this by the complainant. PW22 admitted that Dharmender Singh was arrested from a busy road. He stated that disclosure statement, arrest memo and other documents were prepared in PS in about 1520 Page 26 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) minutes and he had dictated the disclosure statement of both the accused persons separately.
IO did not remember who is the owner of H.No. D825, New Friends Colony from where the recoveries were effected at the instance of accused Dharmender Singh nor did he remember the neighbours of H. No.D825. Though he met Mohan Singh Bisht at the garage of H. No. D825, but he did not record his statement as he was related to the the accused. IO admitted that in the siteplan Ex.PW 22/E, accused Subhash Yadav was not shown anywhere in the siteplan nor the description of the settie is mentioned in the tabular description of the same.
4.13 PW23 Vinod Kumar, Sr. Manager proved the call detail record of mobile No. 9868227468. PW24 Ct. Hafizulla was a link witness who took the exhibits to FSL on 15/10/04. PW25 KN Singh, finger print expert proved the finger print report as Ex.PW25/A. PW26 Dinesh Kumar simply identified the dead body. PW27 Dr. Deepa Verma proved the handwriting report as Ex.PW27/A. PW28 Ct. Pushpender had delivered the FIR to the residence of Ld. MM. PW29 Smt. Kavita Goyal proved the FSL report as Ex.PW29/A. As per report the blood of deceased gave positive test for ethyl alcohol and was found to contain ethyl alcohol 914mg/100ml of blood. PW30 Sh. V. Shanker Narayanan proved the biological and serological Page 27 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) examination of exhibits at FSL as Ex.PW30/A and Ex.PW30/B. PW31 SI Ram Chander stated that PCR form has been destroyed. PW32 Mahesh made an attempt to prove the injury suffered by Dharmender Singh. However he admitted that he had not worked with Dr. Chander Kant. 5.0 Sh. Bishen Singh, Ld. counsel for accused Dharmender Singh Mehra argued at length that the prosecution has miserably failed to prove its case beyond reasonable doubt. Ld. counsel submitted that since beginning the investigation has been conducted in a most slip shod manner. The Investigation Officer has all through acted malafidely and he has screened the real offenders. Ld. counsel argued that the accused Dharmender Singh has been shown to be arrested at 5:25pm on the basis of secret information from a busy road but no public person was made a witness. It has been stated that from there he was taken to PS RK Puram where after completing all the formalities, he was taken for medical examination at 6:30pm. This all seems to be quite improbable. Ld. counsel has submitted that there are contradictions in the testimony of public witnesses. The recovery of blood stained clothes cannot be read against the accused as neither the blood group found on the clothes of the accused have matched with the blood group of the deceased nor it has been proved by the prosecution that the accused was wearing the same clothes at the time of incident. Ld. counsel has further submitted that handwriting report also Page 28 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) cannot be read against the accused as specimen handwriting has been taken in the police custody. Ld. counsel has submitted that the injury suffered by Dharmender Singh also cannot be read against him as report of Dr. Chander Kant has not been proved in accordance with law nor is there any evidence to connect this injury with the alleged murder.
5.1 Sh. Prashant Mehndiratta alongwith Sh. Anirudh Mudgal, Ld. counsels for accused Subhash Yadav have also argued at length that there are number of material contradictions in the testimony of public witnesses. Ld. counsel has placed on record detailed chart indicating the contradictions in the testimony of public witnesses. Ld. counsel submitted that presence of accused Subhash Yadav on the spot is very doubtful as PW11 member of the crime team who reached on the spot after the receipt of information did not find accused Subhash Yadav there. It has further been submitted that IO has fabricated the evidence and he has screened the real offenders. Ld. counsel has further submitted that the evidence as to chance prints cannot be read against the accused in view of the law laid down by the Hon'ble High Court in KK Saini Vs. State MANU/DE/1436/2010, Santosh @ Bhure Vs. State in Crl. A. 682/2008 dated 05/03/2001, Mohd. Yunus Vs. State MANU/DE/0753/2010 and Raj Kumar @ Raju Vs. State MANU/DE/1067/2010. It has further been submitted that the last seen Page 29 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) evidence also cannot be read against the accused as it could not be proved by the prosecution that there was no possibility of anybody else have come to the spot where the murder had taken place.
This Court must record its appreciation for the assistance rendered by the Ld. counsels for the accused persons. A detailed chart of contradictions was prepared by the Ld. defence counsel, which highlighted the contradictions in the testimony of prosecution witnesses. 5.2 Sh. MZ Khan, Ld. Addl. PP for State has submitted that prosecution has successfully proved its case. It has been submitted that the circumstances proved by the prosecution are complete and all the circumstances are indicating towards the guilt of the accused and there is nothing to infer that there is any possibility indicating towards the innocence of the accused. Ld. Addl. PP has submitted that contradictions pointed out by the Ld. defence counsel are minor in nature and does not go to the root of the case.
6.0 I have heard the submissions of the Ld. counsels for both the accused persons and Ld. Addl. PP for State and have also perused the record carefully.
7.0 As stated by Phipson on Evidence in criminal cases, it is settled Page 30 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. It is an essential principle of our criminal law that a criminal charge has to be established by the prosecution beyond reasonable doubt, if at the end of the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, the accused is entitled for acquittal.
The term 'beyond reasonable doubt has been explained and a reference has been made to the fourth edition of Halsbury's Laws of England:
"No one has yet invented or discovered a mode or measurement for the intensity of human belief better than this formula of proof "beyond reasonable doubt". What does the expression "beyond reasonable doubt" mean? For a doubt to stand in the way of conviction of guilt it must be a real doubt and a reasonable doubt - a doubt which after full and fair consideration of the evidence the judge really on reasonable grounds entertains. "If the data leaves the mind of the trier in equilibrium, the decision must be against the party having the burden of persuasion". If the mind of the adjudicating tribunal is evenly balanced as to whether or not the accused is guilty, it is its duty to acquit. Refence can be made to Haris J Mal Vs State, 1982 CrLJ 2123 (21282129"Page 31 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 7.1 The prosecution in this case has relied upon circumstantial evidence. In brief the circumstances which the prosecution has relied upon are following:
1) Accused Dharmender and Subhash Yadav were employees of SVM Security Agency;
2) Accused Subhash Yadav was found drunk on duty in the intervening night of 25th 26th July 2004, regarding which the complainant received a complainant and he directed accused Dharmender Singh to change the duty of Subhash Yadav and deduct his salary of three days;
3) Accused Dharmender Singh and deceased Om Prakash came to PW10 Ramesh Pal Singh in the morning of 26/7/04 at around 8:30am.
4) Accused Dharmender Singh was seen by complainant near the office at around 9am;
5) Accused Dharmender Singh, Subhash Yadav and Om Prakash (deceased) opened the office at around 10am, as stated by PW5 Bachan Singh;
6) Accused Subhash bought namkeen from PW5 at 12pm;
7) Accused Dharmender Singh was seen leaving office at around 2:30 - Page 32 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 3pm, as stated by PW5;
8) At around 6pm, the office was found locked and accused Dharmender Singh was found missing;
9) PW10 Ramesh Pal Singh opened the office and found a deadbody lying in the first room and accused Subhash Yadav was found to be in a drunken state in the inner room;
10) Writing of accused Dharmender Singh in the register;
11) Biodata of accused Dharmender Singh missing from the record.
12) Motorola phone given to accused Dharmender Singh was recovered without SIM and battery;
13) Blood stained clothes of accused Subhash Yadav were seized on 27/7/04;
14) Accused Dharmender Singh was found absconding;
15) Accused Dharmender Singh was arrested on 28/7/04. SIM of mobile and key of the SVM office were recovered from his possession;
16) Recovery of blood stained clothes of accused Dharmender Singh;
17) Finger prints of accused Dharmender Singh on table and fridge;
18) Finger prints of accused Subhash Yadav on the Rum bottle; and, Page 33 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr))
19) Injury on the hand of accused Dharmender Singh.
Circumstantial Evidence:
8.0 There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the apex Court as far back as in 1952. In Hanumant Govind Nargundkar and Ann V. State of Madhya Pradesh, AIR 1952 SC 343, wherein it was observed thus :
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
As far as the law on circumstantial evidence is concerned that is very well settled. In Mahmood v. State of U.P., (1976) 1 SCC 542, it has been observed that in a case dependent wholly on circumstantial evidence the court must be satisfied :
Page 34 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr))
i) that the circumstances from which the inference of guilt is to be drawn, have been fully established by unimpeachable evidence beyond a shadow of doubt ;
ii) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and
iii)that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him.
Reference in this regard can also be made to State V Mohan Singh, 2006 CrLJ 1691 (SC).
Where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Reference be made to Hanuman V. State of MP, AIR 1952 SC 343.
Page 35 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116, the apex court discussed the ratio of the judgments in Hanumant v. State of M.P., AIR 1952 SC 343; Tufail (alias) Simmi v. State of U.P., (1969) 3 SCC 198 and Ramgopal v. State of Maharashtra, (1972) 4 SCC 625 and Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 and observed thus :
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
rcumstances (1) the ci from which the conclusion of guilt is to be drawn should be fully established.
The Supreme Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held in Shivaji Sahabrao Bobade v. State of Maharashtra (supra) it was inter alia held that :
(1)Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be is long and divides vague conjectures from sure conclusions ; (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 ;Page 36 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) (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."
Reference can also be made to Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35; Omwati (Smt) and Ors. v. Mahendra Singh and Ors., (1998) 9 SCC 81; Sudama Pandey and Ors. v. State of Bihar, (2002) 1 SCC 679 and R.R. Khanna Reddy and Anr. v. State of A.P., (2006) 10 SCC 172. The Hon'ble courts have emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.
Broadly, the case of the prosecution is relied upon the following points:
1) Last seen,
2) Blood stained clothes,
3) Finger print report,
4) Handwriting report, Page 37 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr))
5) Recovery of articles i.e., sim and battery from accused Dharmender Singh, and lastly,
6) accused Subhash Yadav being found on the spot.
MOTIVE 9.0 Before proceeding further, it is pertinent to mention here that the prosecution in the name of motive has not proved anything. As per the disclosure statement, the accused persons had a fight after taking drinks and during that fight, the deceased threw glass on injured Dharmender Singh which infuriated the accused persons and they killed the deceased. The law on motive is very well settled. Normally behind every act of an individual there is some motive and this is the reason that during investigation, or during trial, the investigating agency or the court tries to ascertain that as to what was the motive on the part of the accused to commit the crime. However, it is settled proposition that proof of motive is not necessary for conviction. It is also pertinent to mention here that alone motive is also not sufficient to hold a person guilty. It is a settled proposition that if the prosecution is able to prove its case beyond reasonable doubt on the basis of material placed on record, the motive looses its significance. However, in the case based on circumstantial evidence, the motive on the part of accused Page 38 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) assumes greater importance. However, even in such case, if the prosecution has successfully proved all the circumstances, conviction can be recorded even in absence of proof of motive in commission of crime. Every human being has a different psychology and the reaction also differs from one individual to another. Some people on mere trivial matters may take a decision to commit a very serious crime and the other set of people may take it with a cool and calm mind and think more dispassionately before taking hazardous and serious step. There is no tool to peep into the mind of an individual and therefore, only an individual knows his intention or motive to commit the crime. Normally, it is only the perpetrator of the crime who knows as to what circumstances prompted him to certain course of action leading to the commission of a crime and therefore, absence of proof of motive does not render the evidence bearing on the guilt of the accused untrustworthy or unreliable. Reference can be made to S.C. Bahri Vs. State of Bihar, 1994 Cri.L.J. 3271.
9.1 It is also a settled proposition that if there are other pieces of evidence to prove beyond reasonable doubt the guilt of the accused, the court will not be justified in rejecting the case of the prosecution merely on the ground that there is no material as to what was the motive for the accused to commit the crime. Reference can be made to State of Karnataka Vs. Page 39 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) Surendra, 1995 Cri.L.J. 3824. It has been said that the motive is a psycological phenomena and if the prosecution is failed to translate the mental disposition of the accused into evidence, it does not mean that no such mental condition, existed in the mind of the offender. Reference can be made to Ranganayati Vs. State of Dy. Inspector of Police, AIR 2005 SC
418. However, it is also settled proposition that the case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. Reference can be made to Surinder Pal Jain Vs. Delhi Administration, AIR 1993 SC 1723.
In Chatru V. State of Orissa, (1987) 1 Crimes 110 (Ori), it was held that:
"the more existence of motive is by itself not an incriminating circumstance. The motive for an act is not sufficient test to determine its criminal character, by a motive is meant anything that can contribute to , give birth to, or even to prevent, any kind of action. Motive may serve as a clue to the intention, but although the motive be pure, the act done under it may be criminal. Purity of motive will not purge an act of its criminal character. Motive though not a sine qua non for bringing home the offence to the accused Page 40 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) is relevant and important on the question of intention. Though the prosecution is not bound to prove motive for the crime, absence of any motive is a factor which may be considered in determining the guilt of the accused. But, if the actual evidence as to the commission of the crime is believed, then no question of motive remains to be established. Absence of motive would put the Court to critically examine the evidence particularly when the conviction is sought to be based solely on circumstantial evidence."
In the present case, the prosecution has not proved any motive on part of accused persons to commit the murder. It is pertinent to mention here that IO did not examine the other guards employed in the security agency. The testimony of these witnesses could have thrown light on the relations amongst the accused persons, deceased and the complainant. This Court is required to critically examine the evidence in the present case, which is based on circumstantial evidence.
Handwriting / Finger Print 10.0 Now coming to the evidence as per finger print and handwriting. Without going into the detailed number of judgment our own Hon'ble High Court in Santosh @ Bhure Vs. State in Crl. A. 682/2008, Page 41 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) Neeraj Vs. State Crl.A. 316/2008 dated 05/03/2001, dealing with a question regarding handwriting expert report interalia held as under:
"18. Unfortunately, for the prosecution, the charge against Neeraj has to fail for the simple reason Neeraj's specimen handwriting was obtained by the police when he was in their custody. No permission was taken from the Court concerned to obtain his specimen handwriting.
The Hon'ble High Court in Santosh @ Bhure's case (supra), discussed the implications of the judgment delived by the Constitutional Bench of 11 Judges of the Hon'ble Supreme Court in State of Bombay Vs. Kathi Kalu Oghad & Ors., 1962 (3) SCR 10. In this judgment, Hon'ble Supreme court has upheld the constitutional validity of compelling an accused to give specimen handwritings. The Hon'ble High court noted the findings of the Hon'ble Supreme court in Kathi Kalu Oghad's case (supra) as under :
"20. It may be noted that the Constitution Bench of the Supreme Court was dealing with the issue whether to compel an accused to give his blood sample, palm and fingerprints impressions, signatures and handwriting etc. would or would not be violative of Article 20(3) of the Constitution of India which made is unconstitutional for a person to be a witness against himself. The Constitution Bench held that to be a witness means to give evidence. It was held that giving handwriting samples or fingerprints or palm impressions did not Page 42 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) tantamount to giving evidence and that when a handwriting sample or a fingerprint or a palm impression was obtained by the police it did not amount to compelling an accused to be a witness against himself."
10.1 Thereafter, the judgment of the Hon'ble Supreme court in State of UP Vs. Rambabu Mishra, AIR 1980 SC 791, was discussed. Inthis case, the Apex court held that it had already been held in State (Delhi Administration) V. Pali Ram, AIR 1979 SC 14, that a court holding an enquiry under the Criminal Procedure Code was entitled under S.73 of the Evidence Act to direct an accused person to enable the Court by which he may be tried to compare it with disputed writings. It was further discussed in Rambabu's case (supra) that whether such a direction, under S.73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceedings before the Court was expressly left open in Pali Ram's case (supra) and this question was also not considered in Kathi Kalu Oghad's case (supra). Thereafter, Hon'ble Supreme court in Rambabu's case (supra) considered section 73 of the Indian Evidence Act and inter alia held as under :
"4. The second paragrah of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the Page 43 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) words "for the purpose of enabling the Court to compare" is that there is some poroceeding before the Court in which or as a consequence of w3hich it might be ncessary for the Court to compare such writings. The direction is to be given for hte pupose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direciton to the accused to give specimen writings for anticipated necessity for comparison in a proceedings which may later be instituted in the Court. Further Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be insitutued before the Court where it would be necessary to compare the writings?
5. We may also refer here to Section 5 of the Identification of Prisoners Act, 1920, which provides:
5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the CrPC, 1898, it is expedient to Page 44 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom he order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has to some time been arrested in connection with such investigation or proceeding.
Section 2(a) of the Act defines "measurements" as including "finger impressions and foot pring impressions".
6. There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and second, 'finger impressions' are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prsioners act. A possible view is that it was thought that Section 73 of the Evidence Act would not taken in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Page 45 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) Section 73 of the Evidence Act."
In the decision reported as 1994 (5) SCC 152, Sukhvinder Singh & Ors. Vs. State of Punjab, noting that the specimen writing of Sukhvinder Singh was obtained by the police when he was in police custody, notwithstanding the fact that Sukhvinder Singh had admitted in his statement under Section 313 Cr.PC that he gave the specimen handwriting it was held that the opinion of the handwriting expert had to be excluded while considering the evidence against Sukhvinder Singh. 10.2 The Hon'ble Delhi High Court in Santosh @ Bhure's case (supra) noted the decision of Rambabu's case (supra) of Hon'ble Supreme Court wherein the appeal was dismissed by the Hob'ble Supreme court and while doing so, it was suggested that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act and provide for the investiture of Magistrate with the power to issue directions to any person, including an accused person, to give specimen signatures and writings Similarly, in KK Saini Vs State 173 (2010) DLT 741, which was a case u/S. 364A IPC, the chance prints were lifted by the crime team from the spot and during custody sample finger print impressions of K.K. Saini were obtained. Finger prints impressions of Sikandar Lal Pahwa (victim) Page 46 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) were also obtained and 19 chance prints lifed from the flat and the sample finger prints of K.K. Saini and Sikander Lal Pahwa were sent for comparison and a report was sent that two chance prints Q2 and Q3 matched those of Sikander Lal Pahwa and the chance print Q9 matched that of K.K. Saini. The Hon'ble High court while dealing with this question, reiterated as under :
"As noted above, the investigating officer, nor any other witness, have thrown any light as to where, when and how the sample fingerprint impressions of the fingers ofthe appellant were taken. In any case, there is no proof that permission was taken from the competent court to do so. There is no proof that the prisoner was duly identified as per the requirement of section 5 of the Identification of prisoners Act 1920. Explaining the constitutional Bench decision of the Supreme Court reported as MANU/SC/0134/1961 : Air 1961 SC 1808 State of Bomaby Vs. Kathi Kalu Oghad, in the decision reported as Manu/SC/0246/1980 : Air 1980 SC 791 State of U.P V. Ram Babu Mishra, which decision was followed with approval int he decisons reported as Manu/SC/0783/1994 : SCC 152 Sukhvinder Singh and Ors. State of Punjab and State of Haryana V. Jagbir Singh and ors. Manu /SC /0776/2003 : AIR 2003 SC 4377 it was held that unless permission is taken from the court of competent jurisdiction and further unless the prisoner is identified as per the requirement of Section 5 of the Identification of of Prisoners Act 1920 reports of fingerprint experts based upon sample fingerprints taken when an accused is in custody of the Page 47 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) police would be inadmissible in evidence. Thus, we discard the report Ex. PW 4/B of the fingerprint expert which has been used by the learned Trial Judge against the appellant."
10.3 The question regarding handwriting compare report again arose in Harpal Singh Vs. State, MANU/DE/1091/2010, decided on 25.05.2010, wherein IO obtained the speciment handwriting Ex.PX1 to Ex.PX4 of the appellant and sent the same along with Ex.P1 to Ex.P4 recovered from the house of the appellant to the Forensic Science Laboratory for comparison of the handwriting. Vide FSL report Ex.PW24/A it was opined that the writing Ex.P1 to Ex.P4 is in the same hand of he who has written Ex.PX1 to Ex.PX4. Ld. Counsel for the appellant in Harpal Singh's case (supra) contended that since no permission being taken from the court of competent Jurisdiction and Section 5 of the Identification of Prisoners Act were not complied with, the report Ex.PW24/A could not be relied upon the Ld. Trial Judge. The Hon'ble High Court answered this query in affirmative and relying upon the judgment in Santosh @ Bhure's case (supra) held as under :
"46. The testimony of Inspector Jagdish Meena PW22, contents whereof have been noted in foregoing paras, makes it abundantly clear that the specimen writings of the appellant were obtained by Inspector Jagdish Meena Page 48 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) when the appellant was in custody. The identifiation of the appellant as required by the Identification of Prisoner's Act 1920 was not got done. Nor was the permission taken from a court of competent jurisdiction to obtain the specimen writings of the appellant.
...
48. Thus, the FSL report Ex.PW24/A has to be excluded from the arena of admissible evidence in the present case, for the reason, no orders were obtained by the competent court to obtain the specimen writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 complied with."
The judgment of Santosh @ Bhure was also followed in Mohd. Yunus Vs. State, MANU/DE/0753/2010, decided on 05.04.2010. 10.4 In Mohd. Aman vs State AIR 1997 SC 2960 it was held that:
".... Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also cast a serious mistrust as to genuineness of the evidence. Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence Page 49 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial for reasons best known to the prosecution and unknown to the Court. Thus the accused could not be convicted for murder."
In the present case also, I am of the considered opinion that the finger prints of accused could have been taken only under the order of the court of competent jurisdiction so as to dispel any suspicion. 10.5 In Maneoalli Anjaneyulu VS State of AP 1999CRL L J 4375 it was observed that :
"It may be mentioned that the photographer who took the chance finger prints has not been examined and the finger print photographs taken have not been filed. There is nothing to show that the finger prints of the accused have been taken before the Magistrate. P.W. 17 in his evidence merely stated that the finger print slips of five accused persons were received by him from the Inspector of police, Tanuku on 15101989 with which he compared the chance finger prints. His evidence does not reveal as to who took the finger prints of the accused and where they were taken. The concerned Inspector P.W. 37 has nowhere stated in his evidence whether he has taken finger prints of the accused and if so whether he has taken them on his own or he has taken them in the presence of the Magistrate, though he speaks of having taken the specimen handwriting of A.1. In the absence of such Page 50 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) evidence, no sanctity can be attached to the evidence of finger print expert inasmuch as there is no evidence to show that the finger prints with which the chance finger prints were compared were those of the accused."
10.6 In the present case it is not disputed that the specimen handwriting and finger prints were taken by IO without permission of the Court. It is quite strange that despite specific provisions of Identification of Prisoners Act, the investigating agency does not care to take specimen finger prints as provided under the Act. Only on account of casual approach of I.O. such evidence is going to be excluded. The Senior police officers must give suitable direction to IO's that specimen finger prints should be taken in accordance with the provisions of identification of Prisoners Act. Thus, the entire evidence regarding the finger print and handwriting has to be excluded for consideration.
Blood stained clothes 11.0 Now coming to the blood stained clothes. The prosecution has relied upon the fact that blood stained clothes were recovered at the instance of accused Subhash Yadav and Dharmender Singh Mehra. It has come in the evidence of IO that the blood group of accused persons could not be detected. As per FSL report Ex.PW30/B though blood group found on the Page 51 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) clothes of the accused person was found to be "B" but it is not indicating towards the blood group of the deceased. Further more, there is no credible evidence to prove that the accused persons were wearing these clothes at the time of incident. This Court is not inclined to believe the testimony of complainant qua Subhash in this regard. In regard to blood stained clothes, the law is very well settled. In Prabhoo vs State of UP, AIR 1963 SC 1113, it was held as under:
"The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of section 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of section 27. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Kotayya v. King Emperor, (194647)74 I.A. 65, the Privy Council considered the true interpretation of section 27 and said :
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced ; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past Page 52 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife ; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A.', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (p. 77) We are, therefore, of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his.
10. Therefore, the question before us is this. Is the production of the blood stained axe and clothes read in the light of the evidence regarding motive sufficient to lead to the conclusion that the appellant must be the murderer ? It is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his Page 53 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) innocence The motive alleged in this case would operate not only on the appellant but on his father as well. From the mere production of the blood stained articles by the appellant one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the SubInspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links, probably because the prosecution adopted the shortcut of ascribing certain statements to the appellant which were clearly inadmissible."
In Raj Kumar @ Raju Vs. State, MANU/DE/1067/201, it was held as under:
"18. The recoveries of bloodstained clothes at the instance of the appellant have to be viewed in light of various decisions of hte Supreme Court where such kind of recoveries have been held to be very weak evidence.
19. In the decision reported as Manu/SC/0123/1962: AIR 1963 SC 1113 Prabhu V. State of UP recovery of a blood stained shirt and a dhoti as also an axe on which human blood was detected was held to be extremely weak evidence. Similarly, in the decision reported as AIR 1977 SC 1753 Narsinbhai Haribhai Prajapati etc. V. Chhatrasinh and Ors. The recovery of a bloodstained Page 54 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) shirt and a dhoti as also the weapon of offence a dhariya were held to be weak evidence. In the decision reported as MANU/SC/0031/1994 : AIR 1994 SC 110 Surjit Singh and Anr. V. State of Punjab the recovery of a watch stated to be that of deceased and a dagger stained with blood of the same group as that of the deceased were held to be weal evidence. As late as in the decision reported as MANU/SC/7040/2008: JT 2008 (1) SC 191 Mani V. State of Tamil Nadu recoveries of blood stained clothes and weapon of offence stained with blood were held to be weak recoveries.
20. We may only add that the part of the disclosure statement of the accused that the clothes which he was wearing at the time when he committed the crime got stained with blood of the deceased and his getting the cltohes recovered attracts Section 27 of the Evidence Act limited to the extent that the accused got recovered blood stained clothes. Independent evidence has to be led to prove that the said clothes were being work by the accused at the time when the crime was committed and said fact cannot be proved through his disclosure statement."
In Vijay Kumar v. State of Kerala, AIR 2000 SC 586, the Hon'ble Supreme Court it was held that:
"(8). The lungi, that was used as ligature was stained with human blood of Group'A' and the blood group of accused No. 2 was also of Group 'A' . The Apex Court held that the Page 55 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) circumstances did not point towards the guilt of the accused and observed:
"In the absence of any evidence that all these accused persons were seen in the guard room last with the deceased, the so called presence of human blood in the guard room cannot be a clinching circumstance to bring home the charge against the accused persons. That apart, it has not been established that the said blood is of the same group as that of the deceased. It cannot therefore, be reasonable to hold that the deceased was assaulted in the guard room.........."
"The presence of group 'A' blood on the lungi that was used as ligature, which is also the blood group of accused No. 2 could have been utilised as clinching circumstance against the said accused, had it been established that the lungi belongs to accused No. 2. But in the absence of any such evidence and further in the absence of any investigation as to what was the blood group of the deceased, the said circumstance. In our opinion, cannot be held to be a clinching circumstance, so far as accused No. 2 is concerned."
The prosecution in the present case has not led any cogent or creditworthy evidence to prove that the accused persons were wearing the same clothes at the time of incident. The blood group of deceased has also not been proved by the prosecution. Thus, the entire evidence regarding the blood stained clothes has also to be excluded.
Page 56 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) LAST SEEN EVIDENCE 12.0 Now coming to the last seen. In respect to the last seen, the prosecution has relied upon testimony of PW10 Ramesh Pal Singh and PW5 Bachan Singh. PW10 Ramesh Pal Singh in his testimony has stated that he saw accused Subhash Yadav in a drunken condition in the morning. Thereafter, he called accused Dharmender Singh Mehra at his home. Accused Dharmender Singh Mehra came alongwith deceased Om Prakash. It also appeared in the testimony of the complainant that he saw accused Dharmender Singh Mehra at around 9am near the office. Then there is evidence of PW5 Bachan Singh that accused Subhash Yadav purchased some namkeen from his shop at around 12pm and then PW5 saw accused Dharmender Singh going from his office at around 2:30pm with some object in his armpit. The dead body was recovered at around 6:15pm and accused Subhash Yadav was found present alongwith the dead body in blood stained clothes in the same room. In regard to last seen evidence, a Divison Bench headed by Hon'ble Mr. Justice Pradeep Nandrajog in Arvind @ Chhotu V. State Crl.A.362/2001, decided on 10.08.2009, extensively dealt this question and after considering as many as 14 judgments namely, Deonandan Mishra vs. The State of Bihar, AIR 1955 SC 801 ; Anant Bhujangrao Kulkarni vs. State of Maharashtra, 1993 SCC (Cri) 520 ; State of West Bengal vs. Mir Mohammad Omar & Ors. , (2000) 8 SCC 382 ; Mohibur Rahman & Anr. Page 57 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) vs. State of Assam. (2002) 6 SCC 715 ; Bodhraj @Bodha & Ors. vs. State of Jammu & Kashmir. (2002) 8 SCC 45 ; Babu S/o Raveendran vs. Babu S/o Bahuleyan & Anr. (2003) 7 SCC 37 ; Amit @Ammu vs. State of Maharashtra. 2003 (8) SCC 93 ; State of U.P. vs. Satish. (2005) 3 SCC 114; Deepak Chandrakant Pail vs. State of Maharashtra AIR 2006 SC 1708 ; State of U.P. vs. Desh Raj. AIR 2006 SC 1712; Ramreddy Rajeshkhanna Reddy & Anr. vs. State of Andhra Pradesh.2006 (3) 83. SCALE 452 ; Vikramjit Singh @ Vicky vs. State of Punjab, 2006 91 SCALE ; State of Goa vs. Sanjay Thakran and Anr. 2007 (3) 94 SCALE 740 ; Venkatesan vs. State of Tamil Nadu. 2008 (9) 96. SCALE 319 ; Vithal Eknath Adlinge vs. State of Maharashtra, 2009 (3) 99 SCALE 327 ; State of Uttar Pradesh vs. Shyam Behari & Anr. 2009 (8) SCALE 743 after having discussed in detail the law on this point summarised as under: "103. We may summarize the legal position as under:
(i) Lastseen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the lastseen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of lastseen, if of a kind, where a rational mind is persuaded to reach an Page 58 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of lastseen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of lastseen, a conviction can be sustained.
(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the lastseen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory.
For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the Page 59 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the lastseen theory.
The above circumstances are illustrative and not exhaustive. At the foundation of the lastseen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of lastseen evidence and standing alone would be sufficient to sustain a conviction." In State of Rajasthan V. Kamla, AIR 1991 SC 967, the Hon'ble Supreme Court held that :
"Merely because the deceased was last seen in the company of the accused without anything more accused cannot be pinned down to the charge of murder. There the alleged recovery of murder weapon and ornaments of the deceased on the discovery statement was doubtful. The dead body was exhumed at the statement of accused in custody, but long before that the victim's husband showed the place to the police. So, Section 27, Evidence Act was not available. The accused was acquitted."
Now, the question is that in view of this settled legal position, can the testimony of PW5 Bachan Singh and PW10 Ramesh Pal Singh be relied upon to record conviction against the accused persons. Page 60 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 12.1 I consider, that testimony of PW5 Bachan Singh and PW10 Ramesh Pal Singh, both are not reliable enough to record conviction on this point also. There are umpteen reasons for it. As far as the conduct of the complainant is concerned, it is extremely doubtful since beginning. If we go through his testimony in detail in entirety it does not leave even an iota of doubt that infact he was running the security agency in the name of his wife. On paper it was a partnership firm. The partners seem to be the wife and daughter of the accused. Earlier there was one Priya Baiju who retired. Admittedly, there were keys of the office more than one. One key is stated to be with accused and wife of the complainant and other key is stated to be with the complainant. However, there is divergent evidence on the point that who used to open the office. PW5 stated that office was used to be opened sometime by the lady guards also. It also came in the evidence that accused Dharmender Singh Mehra used to stay in the office only. So where is the question of opening it. IO is so irresponsible that he says that he did not make any enquiry regarding the number of keys of the office. PW5 Bachan Singh in his statement before the police had stated that he went to the office of SVM when the police had arrived but in his statement before the Court, he took a somersault and stated that when Ramesh Pal Singh initially opened the office and found the dead body, he came to him rushing and informed about the same and then the matter was informed to the police. It also came in his testimony that in the meanwhile he also went alongwith the witness to Page 61 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) the spot. Therefore, it is on record that the venue was accessible to complainant before the police reached there. Even if we believe the testimony of PW5 for the sake of argument that accused left the office at 3pm then it cannot be said with certainity that the complainant or any other person did not visit that place in between. It has also come in the testimony that there were two gates. However, one of the gate, the prosecution witnesses say that used to remain closed. But when there is a specific defence that complainant may also be involved in the offence, the possibility of this gate being used cannot be ruled out. I consider, that taking into account the entire law on last seen evidence which has been discussed in detail in the judgment of Arvind @ Chhotu Vs State Crl.A. 362/2001, the circumstances regarding last seen in the present case is not sufficient to convict the accused. It is clear that the last seen theory is primarily based on the principle of probability and cause and connection. It has to be so complete that the finger of accusation unerringly point towards the guilt of the accused. Only last seen evidence can be a basis of conviction if there is no possibility of an outsider intervening. In order to make the evidence of last seen to the status of proof it has to be proved beyond reasonable doubt that no other person except the accused persons could have accessed the place where the dead body was found and the time between the last seen and dead body do not rule out that a third person could not possibly be involved. Page 62 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) PRESENCE OF ACCUSED SUBHASH YADAV 13.0 Now coming to the presence of accused Subhash Yadav on the spot. This is also a highly suspicious point in this case. The prosecution claims that accused Subhash Yadav was found on the spot when the police reached on the spot. The police photographer says that he did not see the accused there. There are certain photographs on the record showing accused Subhash Yadav in blood stained clothes. IO states that he does not remember where did he take the photographs. He does not rule out the possibility that the photographs were taken in the PS before the clothes were seized. Accused Subhash Yadav was neither arrested nor medically examined on 26/7/04. Perusal of the case diary is indicating that since he was under the influence of alcohol he was not examined. He was taken to the PS thereafter what happened to him the prosecution is silent about it. His blood stained clothes were seized on 27/7/04. It is interesting to note that the postmortem is also conducted on 27/7/04 at 3:30pm. Therefore, the possibility of tampering with the clothes with the blood cannot be ruled out. The entire case is silent about the handing over of the seal by the IO. All these points may be very small if taken differently but if they are read together in a case which is full of suspicion, where the role of IO and complainant is highly doubtful, these points become very important. A person who is found Page 63 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) alongwith a dead body in blood stained clothes under the influence of liquor is not dealt with by the police. He is neither an accused nor a witness till 28/7/04. It is interesting to note that on 28/7/04 he is found standing in the PS when accused Dharmender Singh Mehra is brought there. Prosecution wants this Court to believe that the person who has committed a murder, found on the spot with blood stained clothes, will incidentally be present in the PS after two days and shall offer himself to be identified by his co accused for being arrested. The misdeeds of the IO did not stop here. He takes accused Subhash Yadav for medical examination but does not place his MLC on record. During perusal of the case diary, I have found the MLC of Subhash Yadav dated 28/7/04 in the police file with cuttings on it. Apparently, it is a case of tampering with the prosecution evidence. IO will have to explain all these things. I may emphasize that it is a fit case where the Commissioner of Police should intervene and initiate appropriate proceedings. Is this the way that the investigation of a murder case is conducted?
RECOVERY OF ARTICLES 14.0 The prosecution is heavily relying upon the recovery of SIM card and battery from the possession of accused. They say that the Page 64 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) telephone No. 9868227468 of Motorola company was given to accused Dharmender Singh by complainant Ramesh Pal Singh for discharge of official duty. If it was so, who stopped the IO to ascertain the location of the accused persons at the relevant time? He did not make any enquiry in this regard. I do not find any evidence on record to conclusively hold that this telephone No. was with accused Dharmender Singh Mehra. Regarding the arrest and recovery from accused Dharmender Singh Mehra on 28/7/04, again there are material contradictions. As per prosecution witnesses, accused Dharmender Singh was arrested from Kailash Colony at around 5 - 5:30pm and from there he was taken to PS RK Puram, where coaccused Subhash Yadav was arrested and the disclosure statement of both the accused persons were recorded. It is pertinent to mention here that the disclosure of both the accused persons are almost verbittum. IO states that he had dictated the same. And then these accused persons are taken to Safdarjang Hospital at 6:30pm and thereafter, they go to PW1 Ganpati Bhomik and effect recovery from New Friends Colony. However, if we peruse the case diary, the recoveries are effected at the instance of accused Dharmender Singh Mehra immediately after arrest and thereafter, he is taken to PS. Therefore, apparently the time at which accused Dharmender Singh has been shown to be arrested is incorrect. The presence of accused Subhash Yadav on the spot could also be conclusively proved by the Crime Team report. The prosecution did not prove it for the reasons best known to them. The case Page 65 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) diary states that accused Subhash Yadav had also suffered some injury but he was not medically examined for the reasons best known to the IO. INJURY OF ACCUSED DHARMENDER SINGH 15.0 The prosecution also wants to connect accused Dharmender Singh Mehra with the offence by way of injury of his finger. They rely upon the report given by Dr. Chander Kant and evidence of PW1. Though report of Dr. Chander Kant has not been proved but even if it is read for the sake of argument, the report dated 29/7/04 states that injury was 45 days old. The alleged incident had taken place on 26/7/04. There is a time gap. Besides this, the allegation of the prosecution is that while accused persons and deceased were taking drinks, some quarrel took place and deceased Om Prakash threw a glass on accused Dharmender Singh Mehra which resulted in the injury on his finger. The injury on his finger is CLW. CLW is suffered with a sharp object. This kind of injury can be suffered with a broken glass and not with a complete glass thrown on somebody. Secondly, the injuries suffered to have been by the deceased in the postmortem are mostly superficial in nature. The deceased has been killed by throttling. It seems that deceased was killed by pressing his neck. It is pertinent to mention here that only one of the hyoid bone was found fractured. Therefore, the offence being committed by a single person cannot be ruled out. It is also Page 66 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) interesting to note that IO admitted in his cross examination that nobody heard any commotion at the time of the offence. The siteplan indicates that the venue was surrounded by shops. Had such an incident taken place, the possibility was that it would have been heard. The conduct of the complainant is highly doubtful. Even as per his testimony, when he reached in the office, he found Om Prakash lying with face downwards but instead of providing any medical help to him, he informed the police. He was a police official. His first duty was to take such a person to some doctor who was only 200 yards away from that place. How could he presume that Om Prakash had already died. It came in the testimony of PW10 Ramesh Pal Singh that it took around 2025 minutes for the police to reach. In view of the entire discussion that I made above, I consider that the prosecution has not been able to bring sufficient evidence to record conviction the accused persons. This Court has no other option but to extend benefit of doubt to the accused persons. Hence, accused persons are acquitted giving them benefit of doubt.
16.0 However, before parting with, the Court records its extreme anguish over the working of IO in the present case. I must mention that the investigation in this case has been conducted in most atrocious and cavaliar fashion. The investigation has been conducted in tainted fashion. It Page 67 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) seems that intentionally so many gaps were left unfilled that IO sealed the fate of the case. It is a matter of great concern that in such a serious case of murder not only IO, the supervisory officer also failed to exercise their supervision. It is pertinent to mention here that the complainant in this case was a police official. The murder took place in the office of security agency, run by complainant's wife on paper. It was also a matter of fact that this complainant was residing in the residential colony which was within the campus of PS RK Puram. How could the supervisory officer not take all these facts into the account? How could they not supervise the investigation which was being conducted in such a casual manner? The investigation has to be in a fair and trustworthy manner. It must be kept in mind that public at large looks upon the funtionaries of criminal justice system for punishing the guilty. It is not sufficient that the investigation is conducted in a fair manner, it must also look to be so. The complainant herein was residing in the same Police station, he was a police official, the murder had taken place in his office and there was the possibility that he was running a business under cover. Why the senior police officers did not take steps to make a thorough enquiry / investigation in this regard. I leave all these questions for the Commissioner of Police to examine and enquire into. How this person, an ASI, openly saying on oath before the Court that though he may not be present in his office but his presence would be marked there. How it is possible that a policeman who is on security duty comes outside for personal Page 68 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) work and he is shown to be present on duty. Are we relying on these persons for security? It is not a small issue. It raises eyebrows and concern. A police official who is taking salary from the hard earned money of tax payers is running a business and no one is bothered. I earnestly believe that the Commissioner of Police would not only order an enquiry into this matter but also ensure that no other police official while taking salary from the government exchequer, is running the business. The senior police officials are also required to explain that why effective supervision was not carried out. Role of the IO in the present case must be enquired in detail by the Commissioner of Police. This enquiry must be conducted by an officer not below the rank of DCP. The role of the complainant in this case is also under cloud. His role is also required to be enquired thoroughly. This Court earnestly believe that the Commissioner of Police shall issue appropriate directions for making an enquiry in this regard and shall submit a report within 30 days and appropriate action shall be taken against them.
16.1 Therefore, accused persons Dharmender Singh Mehra and Subhash Yadav are acquitted of the offence u/S 302/34 in case FIR No. 501/04 PS RK Puram. Their bail bonds are canceled. Sureties are Page 69 of 70 SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) discharged. Original documents of the sureties be released to them against proper acknowledgment.
17.0 In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months.
File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma)
Today on 24.01.2011 ASJ02(South)/24.01.2011
Saket Courts / New Delhi.
Page 70 of 70
SC No. 172-09 (State Vs. Dharmender Singh Mehra & Anr)) 24/01/2011 Present: Sh. MZ Khan, Ld. Addl. PP for State.
Both accused on bail with counsel.
Vide separate judgment, both accused Dharmender Singh and Subhash Yadav are acquitted of the offence u/S 302/34 in case FIR No. 501/04 PS RK Puram. Their bail bonds are canceled. Sureties are discharged. Original documents of the sureties be released to them against proper acknowledgment.
In terms of section 437(A) Cr.P.C., accused persons are directed to furnish bail bond in the sum of Rs.10,000/ each with one surety each in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bonds shall be in force for 6 months.
File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ02(South)/24.01.2011 Saket Courts / New Delhi.
Page 71 of 70