Delhi District Court
Fir No. 696/2017 State vs . Rajesh Malik Page No.1/46 on 20 April, 2023
DLNW010004182015
Presented on : 22-01-2015
Registered on : 19-02-2015
Decided on : 20-04-2023
Duration : 8 years, 2 months,
28 days
IN THE COURT OF
ASJ/SPECIAL JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
SC No. 52105/2016
STATE
Through Police Station Officer Keshav Puram
NORTH WEST DELHI
VERSUS
RAJESH MALIK
S/o Sh. Satya Dev Malik,
R/o H.No. F-14/1,
Sector-15, Rohini, Delhi.
Permanent Address :
Village Kasanda,
P.S. Sadar City,
District Sonipat,
Haryana.
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APP for State : Sh. K.D. Pachauri
Ms. Usha Rani : Ld. LAC for accused Rajesh Malik.
FIR No. : 696/14
Police Station : Keshav Puram
Under Section : 302/392/411 IPC
FIR No. 696/2017 State Vs. Rajesh Malik Page no.1/46
JUDGMENT
(Delivered on 20.04.2023)
1. The accused Rajesh Malik has been sent to face trial for the offence punishable under Section 302/392/411 Indian Penal Code (hereinafter referred to as 'IPC').
1.1 Facts of the case in brief are that in the morning of 25.02.15 at 5.25 am police received a call vide DD no.7A (Ex.Pw3/B), from C-2/46C Lawrance Road near NDPL Office, regarding murder of one lady. On this call IO/SI Deepak/Pw31 alongwith Ct. Praveen/Pw15 reached at spot. Pw4 Lady Ct. Anita and Pw23 Ct. Dinesh had also reached at spot. IO inquired from caller Manmohan Malhotra/Pw13 who told him that a lady has been murdered in Flat no. C-2/47C. IO Noticed that both the doors of flat were open and on the room at the left side, after entering from main door, a lady namely Sheela Khanna w/o Late OP Khanna was lying on bed. Her body was non responsive, there was some blood on the bed and a Chunni lying near the head of lady. IO called the crime team and got the spot photographed. Pw4 checked the body of the lady and there was some blood on the mouth of deceased. IO lifted the exhibits from the room and outside room and sealed the same. 1.2. IO also went to other bedroom in the flat and lifted the exhibits i.e. one sealed bottle of brandy, one almost empty bottle of brandy, empty water bottle, one steel and one plastic disposable glass, 16 Indian cigars (Bidi), a matchbox and a visiting card and some documents lying in an almirah fixed with wall. The exhibits were sealed. After that IO recorded the FIR No. 696/2017 State Vs. Rajesh Malik Page no.2/46 statement of complainant who is adopted son of the deceased. 1.3. In his statement to IO, complainant told that he is adopted son of deceased and earlier he used to work at call center at Gurgaon but he became a drunkard. Therefore his mother got him admitted in drug De-addiction center where he met Rajesh Malik who is resident of sector 15 Rohini, who runs a property business. Rajesh Malik too was admitted to get rid of his alcoholism therefore they became good acquaintance. Complainant was discharged in the month of September but could not get rid of his alcoholism therefore even after returning to house he used to remain drunk.
1.4. Complainant also stated that on 24.10.2014 he had left his phone at home and when he returned home at about 4.00 pm his mother was not at home and he saw in his mobile that there were missed calls of Rajesh Malik. He called Rajesh Malik who told him that he has arranged liquor and asked him to meet in front of Sachdeva Public School Rohini. Complainant went there and met Rakesh Malik and asked him to come to the house of complainant as no one will stop them from drinking there. They came to the house of complainant and started drinking. At about 7.00 pm mother of complainant returned and Rajesh Mailk was introduced to her and then they continued with their drinking. While drinking Rajesh Malik inquired about property and money and the complainant told him that the property is in the name of his mother and all the money is kept by her. After that complainant fell asleep. Complainant woke up at about 5 am and searched for his phone but it was not in his room. He went to room of his mother in search of his mobile where he saw his FIR No. 696/2017 State Vs. Rajesh Malik Page no.3/46 mother lying on bed in unconscious state and there was some blood and her body was cold. The almirah of her mother was open and about Rs. 50-60 thousand, which were kept in that almirah, were missing. His mother used to wear a gold chain which was also missing. He tried to open main gate which was bolted from outside and he noticed his friend Rajesh Malik was missing. Thereafter from the mobile of his mother he called the neighbor who opened the gate and he told him about murder of his mother. Then neighbours called the police. On the statement of complainant/Pw9 FIR was registered 1.5. Inspector Surinder Hudda (Pw32) had also reached at spot at the time of initial investigation and and he took over the investigation after registration of FIR. Pw32 prepared the site plan and made inquiries and then took his team on search of accused. Accused Rajesh Malik was arrested from Connaught Place at the instance of complainant. He was carrying one blue colour bag containing Rs. 60,007/- of different denominations, cigarette, deodorant, one pen, one pouch of tobacco, one mobile phone make Micromax, one chain attached with one watch, two SIM cards (out of which one was Vodafone and other was of Airtel) and one polythene containing his clothes, which were seized during investigation. Accused made confesssion and led to place where he had called complainant. PM report established that deceased was strangulated and after completion of investigation the charge sheet was filed against accused for commission of offences u/S 302/392/411 IPC.
2. On compliance of Section 207 Cr.P.C, the charge-sheet FIR No. 696/2017 State Vs. Rajesh Malik Page no.4/46 was committed to this Court by the Court of Ld. MM.
3. Charge under Sections 392/302/411 IPC was framed against the accused Rajesh Malik by my Ld. Predecessor vide order dated 02.06.2015, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined in total 33 witnesses.
4.1. PW-1 HC Manoj MHC(M) through affidavit Ex.PW-1/A, proved the entries No. 2897, 2898 and 2899 made in register No. 19 vide which the case property was deposited with him as Ex.PW-1/B, Ex.PW-1/C and Ex.PW-1/D respectively. He also proved the copy of RC Nos. 03/21/15 and 04/21/15 vide which the exhibits were sent to the FSL, Rohini, Delhi as Ex.PW-1/E and Ex.PW1/F respectively and the acknowledgment receipts of FSL.
4.2. PW-2 Inspector Manohar Lal through affidavit Ex.PW2/A deposed that on 05.01.2015, he visited the spot i.e. H.No. C-2/47C, Keshav Puram, Delhi and at the instance of IO prepared the scaled site plan of the spot ExPW2/B. 4.3. PW-3 HC Dharambir Singh is the duty officer. He through affidavit Ex.PW-3/A proved DD No. 7A Ex.Pw3/B. 4.4. PW-4 Ct. Anita deposed through affidavit Ex.PW-4/A FIR No. 696/2017 State Vs. Rajesh Malik Page no.5/46 that on 25.10.2014, on receipt of PCR call vide DD No. 7A, she along with IO/SI Deepak, Ct. Praveen and Ct. Dinesh reached at the spot where she conducted search of the female dead body in which nothing was found.
4.5. PW-5 HC Hans Ram is the duty officer. He through affidavit Ex.PW-5/A proved the copy of FIR Ex.PW5/B and his endorsement on the rukka as Ex.PW-5/C. He further deposed that Ct. Satvir, Special Messenger was sent by Govt. vehicle to furnish the copy of FIR to Ld. MM and senior officers i.e. Joint CP, DCP and ACP.
4.6. PW-6 Ct. Satbir Singh deposed through affidavit Ex.PW6/A that on 25.10.2014, at about 10:10 a.m, Duty officer HC Hans Ram handed over him six sealed parcels containing the copies of FIR No. 696/2014 to deliver the same to Ld. MM and Senior Officers and accordingly, he delivered the same and returned to police station vide DD No. 18A dated 25.10.2014.
4.7. PW-7 Dr. Jatin Bodwal is the Specialist from Department of Forensic Medicine, DDU Hospital, Delhi proved the postmortem report of deceased as Ex.PW-7/A. In his opinion, the cause of death was asphyxia as a result of manual strangulation via injury No.3 on the neck which was sufficient to cause death in ordinary course of nature. He further deposed that the manner of death was homicidal in nature. Injury Nos.1 and 2 were caused by blunt force impact and all the injuries were antemortem in nature, fresh in duration prior to death. He also FIR No. 696/2017 State Vs. Rajesh Malik Page no.6/46 proved the subsequent opinion given by him as ExPW7/B wherein he opined that possibility of injury Nos.1 and 2 as mentioned by him in the postmortem report caused by fists and blows or any blunt weapon, cannot be ruled out.
4.8. PW8 Sh. Mukesh Khanna and PW-18 Sh. Deepak Khanna proved the dead body identification statements Ex.PW8/A and Ex.PW-18/A respectively. PW-18 further deposed that after postmortem examination, the dead body was handed over to Siddharth Khanna in his presence vide receipt Ex.PW-18/B. 4.9. PW-9 Sh. Siddarth Khanna is the complainant. He deposed in the line of complaint and the same as Ex.Pw9/A. In his testimony Pw9 brought additional facts that he was in the habit of having high consumption of liquor and on that day, he became fainted/slept after having 2-3 pegs of liquor/Brandy. He further deposed that he had doubt how he got slept only after taking 2-3 pegs of liquor, though he was in the habit of consuming one bottle per day. About the next morning after finding his mother the additional fact he deposed is that there were two gates in his house, one was an iron gate and another was wooden gate and wooden gate was closed from outside by latches.
He further deposed about the investigation Pw9 deposed about the photography of house and seizure of exhibits and proved the initial site plan prepared at his instance Ex.Pw9/B. Pw9 further deposed that he alongwith police officials went to FIR No. 696/2017 State Vs. Rajesh Malik Page no.7/46 the house of accused near Sachdeva Public School in search of accused Rajesh Malik, but his house was found locked and from the neighbour, they came to know that the father of accused used to go for morning walk and when the father of accused Rajesh Malik came there accused was not found in his house. They alongwith the father of accused went to P.S. Keshav Puram. At about 11.30-12.00 p.m, he came to know through police officials that accused Rajesh Malik was apprehended by police from Palika Bazar, Connaught Place. He saw that accused Rajesh Malik was brought by the police officials at P.S. He also came to know through police that cash of around Rs.60,000/-, deodrant, chain watch and his above said Micromax mobile white colour Model A-63 were recovered from the accused, but the same were not shown to him. Only model number, make, colour and mobile number of his mobile phone was asked by the IO from him. He identified the dead body of his mother and IO recorded his statement to that effect. He proved the said statement as Ex.PW9/C. Pw9 correctly identified the accused present in the Court on that day. He also correctly identified the case property produced in the Court i.e. the mobile phone as Ex.P-1, both the SIM cards as collectively Ex.P-2, a golden colour chain watch make SEIKO as Ex. P-3, a brandy bottle COURRIER NAPOLEAN FRENCH BRANDY containing some brandy as Ex. P-4, a packed bottle of BRANDY make BEJOIS partially empty as Ex.P-5.
Since the accused gave a different version regarding arrest of accused and seizure of stolen articles he was cross-examined FIR No. 696/2017 State Vs. Rajesh Malik Page no.8/46 by Ld. Addl. PP for the State. In cross examination Pw9 admitted that on 25.10.2014, he alongwith IO and other police staff went to Palika Bazar, Connaught Place, Delhi in search of accused and on his identification, accused Rajesh Malik was apprehended by the police and was having a green colour bag containing Rs.60,007/-, one gold colour chain watch and my above said MICROMAX mobile which were identified by him. He also admitted that the IO after converting the abovesaid recovered articles in a sealed pullanda took into possession vide seizure memo Ex.PW9/D and that the IO had mentioned the number of recovered currency notes in the seizure memo. He also admitted that a blue colour jeans pant and a black shirt was also recovered from possession of the accused which was identified by him as the same were worn by accused when he came to his house and was consuming liquor. The same were also converted into sealed pulanda and seized by the IO vide seizure memo Ex.PW-9/E. He also admitted his signatures in arrest and personal search memos of accused Rajesh Malik as Ex.PW-9/F and Ex.PW-9/G. He admitted the suggestion of Ld. Addl PP that he could not recollect the those fact as he had joined the investigation on various dates and he thought that it was the part of investigation.
4.10. PW-10 Dr. Avnish Tripathi was the CMO in the casualty of BJRM Hospital and proved the MLC of deceased as Ex.PW- 10/A .
4.11. PW-11 Sh. Neeraj Singh is common fried of complainant and accused. He deposed that in September, 2014, he came in FIR No. 696/2017 State Vs. Rajesh Malik Page no.9/46 contact of Rajesh Malik at Nasha Mukti Kendra where he was also admitted in May 2014. He further deposed that on 24.10.2014, Rajesh Malik was calling him on his mobile again and again. He asked his sister to receive the call and to tell him that he was not present at his residence. Thereafter, the accused called at his number from the number of Sidharth who also met him at Rehabilitation Centre. Thereafter, he fell asleep and on the next day, he saw there were missed calls in his mobile phone from the number of the Rajesh Malik and he called him back and thereafter, Rajesh Malik told him that he was present at Palika Bazar and asked him to reach at Palika Bazar but he did not go there. Later on, he came to know that the mother of Sidharth had been murdered.
4.12. PW12 Ms. Promila Mehrotra is the neighbour to whom Pw9 called. She deposed that on 25.10.2014, at about 5.00 am, she received a call on her mobile number 818500719 from Sunny @ Sidharth who told him that his mother had been murdered by his friend and his friend had also carried away his mobile and had latched the door from outside. She asked him that from which number he was calling, he told that it was his mother's mobile number and requested her to open the door of his house. She narrated the facts to her husband and her husband called at 100 number from landline number 27108037 and went to the house Sidharth and opened the latch of his house from outside. He did not enter the house of Sunny as it was a murder case.
4.13. PW-13 Sh. Manmohan Mehrotra is husband of Pw12 FIR No. 696/2017 State Vs. Rajesh Malik Page no.10/46 who opened the door of the house of complainant. He deposed that on 25.10.2014 his wife narrated to him about Pw9 being locked in house and his mother being murdered therefore and he went outside and saw that the iron door of H.No. C-2/47-C was latched from outside. He opened the latch and called at 100 number from his landline number 27108037 after which police arrived.
4.14. PW-14 Sh. Ankur Pokhriyal is the neighbour of the complainant. He deposed that in the month of September 2014, Siddharth Khanna had sold his old desktop in lieu of Rs.5000/- and at that time he had given him Rs. 4500/- and sought time to give Rs. 500/- later on. On 24.10.2014, Siddharth Khanna made him telephonic call and demanded rest of Rs.500/- upon which he told him that he will give him Rs.500/- on the next day but he came to his shop at about 12.30-1.00 p.m. and told him to arrange the liquor of quarter bottle for him. He along with PW-9 went to a liquor shop at Sector-3, Rohini where he purchased two quarter bottles of liquor and gave remaining money to complainant/PW-
9. 4.15. PW-15 Ct. Praveen had accompanied the IO SI Deepak Bhardwaj during investigation. He deposed in sync with SI Deepak Bhardwaj and proved the seizure memo of blood stained chunni as Ex.PW-15/A and seizure memo of pulanda containing the cover piece of mattress on which the dead body was lying as Ex.PW-15/B. He also proved the other seizure memos prepared by IO as Ex.PW-15/C to Ex.PW-15/N respectively. He further FIR No. 696/2017 State Vs. Rajesh Malik Page no.11/46 deposed that IO analysed the CDR of accused Rajesh Malik and found his location at Palika Bazar, Connaught Place upon which the accused was apprehended at the instance of complainant and on checking the bag, it was found containing cash of Rs.60,007/-, one mobile make Micromax, three deodorants, two SIM cards, one cigarette and one golden colour watch joined with gold colour chain. He also proved the pointing out memo prepared by IO as Ex.PW-15/O. He correctly identified the accused and case property in the Court. He proved the mobile phone as Ex.P1, both SIM cards as Ex.P2 (collectively), golden colour watch make Seiko as Ex.P3, brandy bottle make Courier Napolean French Brandy as Ex.P4, brandy bottle make Bejois partially empty as Ex.P5, three deodorants, one cigarette packet namely Navy Cut, one pouch of tobacco which were recovered from accused Rajesh Malik as Ex.P6 (collectively). He also proved the remaining case property produced in the Court as Ex.P7 to Ex.P19 respectively.
4.16. PW-16 HC Sunder Lal is the Incharge of C-26, PCR van. He deposed through affidavit Ex.PW16/1 about receipt of information regarding murder C-2/46, Keshav Puram, at about 05:24 AM from control room on which he alongwith staff went to the spot and met the complainant who informed about murder of his mother Smt. Sheela Khanna but meanwhile, CAT ambulance and SI Deepak Bhardwaj alongwith other police officials reached there and he left the spot.
4.17. PW-17 Ct. Sandeep is the photographer of Crime Team.
FIR No. 696/2017 State Vs. Rajesh Malik Page no.12/46 He proved the photographs as Ex.PW-17/A1 to Ex.PW-17/A15 and the certificate u/s 65-B Indian Evidence Act as Ex.PW17/B. 4.18. PW19 Ct. Ramesh Kumar on 07.01.2015, on the instructions of the IO/Inspector Surender collected the sealed exhibits of the present case from MHC(M) and deposited the same at FSL Rohini vide RC No. 4/21/15.
4.19. PW-20 Ct. Kapil on 07.01.2015 on the instructions of the IO collected the four sealed exhibits of the present case from MHC(M) and deposited the same at FSL Rohini vide RC No. 3/21/15.
4.20. PW-21 SI Sazid Hasan is the finger print expert in Mobile Crime Team and proved his report as Ex.PW21/A. 4.21. PW-22 ASI Rajbir is the Incharge of Mobile Crime team and proved crime scene report Ex.PW22/A. 4.22. PW-23 Ct. Dinesh deposed in sync with PW-31 SI Deepak Bhardwaj with whom he remained joined in the investigation.
4.23. PW-24 Sh. Surender Singh is the Chief Section Supervisor from Shakti Nagar Telephone Exchange, MTNL, Delhi. He proved the record of telephone no. 27108037, from which call at 100 number was made, in the name of Pw 12 as Ex.PW-24/A to Ex.PW-24/D. FIR No. 696/2017 State Vs. Rajesh Malik Page no.13/46 4.24. PW-25 Sh. Amit Kumar was the General Secretary from De-addiction Center, Dayaneeta Social Welfare Society. He proved the certificate Ex.PW25/A regarding admission of complainant and of accused from 01.04.2014 to 22.06.2014. the certificate also shows that accused again came to center on 29.06.2014 and joined as a volunteer but on 19.10.2014 his father took him back. He also proved two slips regarding depositing the fees on behalf of Sidharth Khanna Ex. PW25/B and Ex. PW25/C. He also proved entries regarding the admission and discharge of accused Rajesh Malik and complainant Siddharth Khanna as Ex.PW25/D to Ex.PW-25/G. 4.25. PW-26 Sh. Sh. Israr Babu Alternate Nodal Officer, Vodafone proved the CAF of Mobile no. 9899598379 in the name of Sheela Khanna Ex.Pw26/B, KYC Documents Ex.Pw26/C and the CDR from 20.10.2014 to 30.10.2014 Ex.Pw26/D, alongwith certificate u/S 65B IEA Ex.Pw26/E. He also proved CAF of Mobile no. 9811113560 in the name of Satyadev Malik i.e. father of accused Ex.Pw26/F, KYC Documents Ex.Pw26/G and the CDR from 20.10.2014 to 30.10.2014 Ex.Pw26/H, alongwith certificate u/S 65B IEA Ex.Pw26/I. He also proved the cell ID chart Ex.Pw26/J. This number was issued in the name of Satyadev Malik on 27.10.2014 and prior to that it was in the name of one Hawa Singh. Pw26 also proved the CAF in the name of Hawa Singh Ex. Ex.Pw26/K and its KYC document Ex.Pw26/L. FIR No. 696/2017 State Vs. Rajesh Malik Page no.14/46 4.26. PW-27 Sh. Chandra Shekhar Nodal Officer Bharti Airtel proved the CAF of Mobile no. 9818500719 in the name of Promila Malhotra alongwith KYC documents Ex.Pw27/A and the CDR from 20.10.2014 to 30.10.2014 Ex.Pw27/B. He also proved CAF of Mobile no. 8826013499 in the name of Sheela Khanna i.e. deceased alonwith KYC Documents Ex.Pw27/C and the CDR from 20.10.2014 to 30.10.2014 Ex.Pw27/D, alongwith certificate u/S 65B IEA Ex.Pw27/E. He also proved the cell ID chart Ex.Pw27/F. 4.27. PW-28 Ms. Shailender Arora PRO MTNL, Rohini, proved the CDR of Phone number 27108037 for the period 16/10/2014 to 31/10/2014 Ex.PW28/A and certificate u/S/65B IEA Ex.PW28/B. 4.28. PW-29 Ms. Manisha Upadhyaya Asstt. Director Biology Division, FSL, Delhi proved biological report of exhibits as Ex.PW29/A and serological report is Ex.PW29/B. 4.29. PW-30 Ct. Sanju from Control Room PHQ proved the information regarding murder recorded in Form-I Ex.Pw30/A with certificate u/s 65B of Indian Evidence Act Ex.PW30/B. 4.30. PW-31 SI Deepak Bhardwaj is the first investigating officer of the case. He deposed that on 25.10.2014 on the receipt of the call vide DD No. 7A, he alongwith Ct. Praveen reached at C-2/46 C, Keshav Puram, Delhi, where they met one caller, who informed them that murder of a lady had been committed at C-
FIR No. 696/2017 State Vs. Rajesh Malik Page no.15/46 2/47 C, Keshav Puram. Thereafter, they went to C-2/47 C, Keshav Puram and found that the dead body of the a lady was lying on the bed in the room on the left side of the premises. District crime team was called, Photographs of the spot were taken. The articles lying around i.e. sky blue coloured chunni, one mattress cover, one printed bedsheet with white background, artificial teeth of the deceased and one pair of chappals were seized from the spot vide seizure memos Ex. PW15/A, Ex. PW15/B, Ex. PW15/J, Ex. PW15/K, Ex. PW15/D. One lady constable and Ct. Dinesh were also called at the spot and the personal search of the deceased was conducted by lady constable. In the another room, two liquor bottles one in sealed condition and another one with some left over liquor (brandy), water bottle, one match box with matchsticks, 16 pieces of biddies, one steel and one plastic glass were lying scattered on the bed and the said articles were seized vide seizure memos Ex. PW15/G, Ex. PW15/E, Ex. PW15/C, Ex. PW15/H, Ex. PW15/M, Ex. PW15/F respectively. Visiting card of Malik Property Palace was found lying in the almirah and it was also seized vide seizure memo Ex. PW15/L. He proved form 25.35(1)B of the deceased ExPW31/A and sent the body to be preserved at BJRM Hospital through Ct. Dinesh. Thereafter, he prepared the rukka on the statement of complainant Sidharth Khanna Ex.PW31/B and got the FIR registered. Thereafter this witness has deposed in sync with PW-32 Inspector Surender with whom he remained in the investigation.
4.31. PW-32 Inspector Surender is the second IO of the case.
FIR No. 696/2017 State Vs. Rajesh Malik Page no.16/46 He deposed that on 25.10.2014, he reached at C-2/46 C, Keshav Puram, Delhi where he met with SI Deepak, Ct. Parveen and caller namely Manmohan Mehrotra. This witness deposed in sync with PW-31 SI Deepak Bhardwaj with whom he remained in the investigation. After registration of the case further investigation of the present case was marked to him. SI Deepak handed over him all the sealed pulandas which were seized by him along with seizure memos and other documents. Thereafter, he prepared the site plan Ex. PW9/B at the instance of the complainant and went to Connaught Place in search of accused Rajesh Malik and at the instance of the complainant, they apprehended accused Rajesh Malik and arrested him vide arrest memo Ex.PW9/F. His personal search was also conducted vide memo Ex.PW9/G. He proved pointing out memos Ex. PW14/O and ExPW31/C of spot and Sector-13, Rohini near Sachdeva Public School where he had met complainant Siddharth on the previous day. On 26/10/2014 Postmortem of the deceased was got conducted at BJRM Hospital and dead body was handed over to the relatives of the deceased. The doctor concerned handed over the exhibits i.e. viscera box, sample seal and clothes of the deceased which were seized by SI Deepk Bhrdwaj vide different seizure memos already Ex. PW23/A and Ex. PW23/B. On 07.01.2015 he got deposited the exhibits in the FSL Rohini through Ct. Ramesh and Ct. Kapil and also obtained the scaled site plan from Inspector Manohar Lal and also obtained the PCR call log book copy from Incharge PCR HC Sunder Lal and also sent the phone numbers of caller, complainant and accused to obtain their CAF, CDRs to the concerned Service Providers.
FIR No. 696/2017 State Vs. Rajesh Malik Page no.17/46 Thereafter, he prepared the charge sheet and submitted the same before the court.
4.32. PW-33 Ms. Kavita Goyal Assistant Director Chemistry from FSL, Delhi proved the FSL report of viscera Ex.PW-33/A.
5. After completion of prosecution evidence, the statement of accused under Section 313 Cr.PC was recorded on 11.10.2019 wherein when all the incriminating evidence/material was put to him, he denied the same and pleaded innocence. Accused stated that nothing was recovered from his possession belonging to the complainant and all the articles were planted upon him by the IO. He further stated that when he left the home of Siddharth, he was in his senses and that he has been falsely implicated in the present case by Siddharth Khanna and he did not commit the offence in question and that he did not know how mother of Siddharth expired. The accused did not lead any evidence in his defence despite being given opportunity for the same.
6. I have heard the Ld. Addl. PP for the State and Ld. Counsel for accused and have perused the material available on record.
ARGUMENTS
7. Ld. Addl. PP for state would submit that the prosecution has proved its case beyond reasonable doubt that on 24.10.2014 accused called the complainant to drink alcohol with him, knowing that he is a drunkard and when complainant took FIR No. 696/2017 State Vs. Rajesh Malik Page no.18/46 accused to his house he saw an opportunity when complainant told him about the valuable articles and money kept by his mother and after making the complainant drink to an extent that he fell asleep the accused killed the mother of complainant and committed robbery of cash, mobile of complainant and watch of deceased, which was later recovered from the possession of accused on very next morning of incident. Therefore the accused should be held guilty for commission of offence u/S 302/392 IPC and punished severely.
8. Per Contra, Ld. LAC Ms Usha Rani for accused would submit that the prosecution has miserably failed to prove the case beyond reasonable doubt as it has failed to establish any motive for it was complainant who called the accused to his house not otherwise. Ld. LAC would also submit that the deceased was in the flat where complainant was present therefore the accused cannot be considered to be the last seen person with deceased and given the fact that complainant was a drunkard and step son of deceased who had eye on property of complainant he carried the motive to eliminate the deceased and when he called the accused to have drinks in house, complainant planned it all and after the accused left his house he killed his foster mother and blamed the accused. Ld. LAC would point to the fact that complainant lied on oath when he deposed that he saw missed call of accused whereas call records show that it was complainant who called the deceased. Ld. LAC would also point to the fact that complainant claimed that both doors of house i.e. wooden as well as iron were locked but the neighbour who opened the door deposed with FIR No. 696/2017 State Vs. Rajesh Malik Page no.19/46 certainty that he only opened iron gate and the wooden door was open. Defence would also point to the deposition of police witness who admitted that the outer Iron Gate had grill through which one can easily put latches from inside also. Therefore this all was planned by complainant to falsely implicate the deceased. To the recovery of money and the stolen articles from accused Ld. LAC would submit that they are planted as the complainant in examination in chief had deposed that accused was not apprehended in his presence and he saw the accued in Police station where he signed documents. Therefore the prosecution has failed to prove any circumstance except that accused had drinks at the house of complainant in the night of 24.10.2014, which is not sufficient to hold that the accused had murdered the deceased for committing robbery.
9. Although complainant was present in the house he has not claimed that he saw accused doing any act, except that he inquired about money in the house, which could show that accused was looking for opportunity. Therefore this is a case based on circumstantial evidence.
10. Law with regard to circumstantial evidence has been discussed in detail by the Hon'ble Supreme Court in the case of Harishchandra Ladaku Thange vs. State of Maharashtra, reported at AIR 2007 SC 2957. It would be useful to reproduce the relevant paragraphs:-
"8. It has been consistently laid down by this Court that where a case rests squarely on FIR No. 696/2017 State Vs. Rajesh Malik Page no.20/46 circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v.State of Rajasthan 1977CriLJ639, Eradu v. State of Hyderabad 1956CriLJ559, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi and Ors.
1985CriLJ1479, Balwinder Singh alias Dalbir Singh v. State of Punjab, 1987CriLJ330 and Ashok Kumar Chatterjee v. State of M.P. 1989CriLJ2124). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR1954SC621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
9. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. 1996CriLJ3461 , wherein it has been observed thus:
21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
FIR No. 696/2017 State Vs. Rajesh Malik Page no.21/46
10. In Padala Veera Reddy v. State of A.P. AIR1990SC79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
11. In State of U.P. v. Ashok Kumar Srivastava [1992]1SCR37 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum FIR No. 696/2017 State Vs. Rajesh Malik Page no.22/46 probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
11. 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 this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. 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 FIR No. 696/2017 State Vs. Rajesh Malik Page no.23/46 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."
12. A reference may be made to a later decision in Sharda Birdichand Sharda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that, "onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 it was held as under:
FIR No. 696/2017 State Vs. Rajesh Malik Page no.24/46 "8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
14. In the back drop of the legal position as to criminal cases based on circumstantial evidence the different important aspects of the case/incriminating circumstances appearing against the accused are being examined as follows:
TESTIMONY of PUBLIC WITNESSES
15. Pw9/Complainant Siddharth Khanna is a drunkard by his own admission. He was admitted to de-addiction center where he met accused as well as Pw11. It was the claim of complainant that on 24.10.2014 he had left his phone for charging and on his return to home he found number of missed calls and when he called back he came to know that it was accused who was calling.
16. The CDR of accused is Ex.Pw26/H and that of complainant is Ex.Pw26/D. In cross examination Pw9 deposed that he left for tample between 12.00 to 1.00 pm and remained FIR No. 696/2017 State Vs. Rajesh Malik Page no.25/46 there till around 4.00/4.30 pm. Which means his that accused must have called in between this period and there should not be any call from phone of Pw9. However, the CDR Ex.Pw26/D records that on 24.10.2014 there was an Incoming call from 9717467288 at 13.12 and he talked for about 6 secs after that he called back at same number at 13.12 and talked for 96 sec. There is another Incoming call from 8285069994 at 14.51 and he talked for 398 secs.
17. There is no missed call from accused. Even the CDR of accused confirms that he had not called complainant. It was the complainant who called accused at 04.24 pm and talked for 516 seconds. After that at 16.54.10 complainant calls at phone no.8285069994 and talks for 158 seconds. As per CDR during this call itself complainant receives call from accused at 16.54.52 and he talks with accused for 111 seconds.
18. At this time at 16.54.52 when accused called complainant, the complainant was already on call with someone at 8285069994 and since both call were connected the call of accused was either joined in conference with call of 8285069994 or the person on 8285069994 was put on hold. However, after the call with accused was over, complainant again calls at 8285069994 at 17.06.25 and talks for 31 seconds. Thereafter the complainant makes two calls to accused. First at 17.07.21 and second at 17.16.54 and talks for 122 and 63 seconds respectively. After that complainant had made two calls to Pw11 on his number at 8826686766.
FIR No. 696/2017 State Vs. Rajesh Malik Page no.26/46
19. This call record analysis shows that complainant lied on two accounts. First that he left the phone at his home and second that accused had called him several time while he was out from home. Had complainant had left his phone at home and he was out from 1.00 pm to 4.30 pm there should not have been any call in his CDR specially at 02.51 pm, when he received call from someone and talked for 398 seconds. And of course there is no missed call from accused to complainant. Rather complainant called the accused first. It is however not in dispute that accused had gone to house of complainant and had consumed liquor there.
20. The subsequent deposition of Pw9 is that he and accused reached at home i.e. spot at about 5.30 pm and they started consuming liquor and at about 7 pm when his mother arrived he introduced accused with her. It is in his deposition that accused made inquiries about financial status, property and family in routine manner and he told accused that his mother is managing the house and she is keeping the money. However, despite being habitual drunker he slept after taking two three pegs of liquor (Brandy).
21. At this juncture it is necessary to visit the testimony of Pw14 who deposed that he was indebted to complainant by Rs. 500/- and on 24.10.2014 complainant called him and demanded money but despite his asking to come next day complainant visited his shop therefore he gave Rs.500/- to complainant from which complainant purchased two quarter bottles and went to FIR No. 696/2017 State Vs. Rajesh Malik Page no.27/46 sector 15. This shows that the complainant, on 24.102015, before he even met accused, had already consumed a half bottle of liquor. This also shows that on 24.10.2014 complainant never went to any temple. Therefore it is unbelievable that complainant would have slept before even saying goodbye to his friend who bought him two bottles of Brandy.
22. The mother was found dead next morning when Pw9 went to her room searching his phone and observed almirah and locker open and cash missing and the watch gifted by him also missing. As per Pw9 as the door of the house was locked from outside he searched for mobile of his mother and on finding that phone called Pw12 on which her husband Pw13 came and opened the door. As per Pw12 and 13 police was informed from their landline phone no. 27108037. It is on this call the DD no.7A Ex.Pw3/B is recorded at 5.25am. The CDR of deceased is Ex.Pw27/D. As per Ex.Pw27/D after complainant called Pw12 at 05.05 am he dialed at 100 number at 5.14 am and talked for 26 seconds. However, no such record of call made at 5.14 is filed on record. What was that conversation?
23. The door was opened by Pw13. As per Pw9 there were two door, one wooden and then iron gate and both of them were closed from outside. However, Pw13 deposed that he only opened the latches of Iron gate. In cross examination on specific question of defence Pw13 answered that "there is only one entry in the flat of deceased having two doors i.e. one outer door made of iron and one inner door of wood. Iron door was latched from FIR No. 696/2017 State Vs. Rajesh Malik Page no.28/46 outside while the inner wooden door was open(d)". Defence inquired from Pw13 if there is possibility to open outer iron door from inside to which Pw13 replied that there is no such possibility. However, to the same question Pw23, Ct. Dinesh who was present with IO at spot, answered that "there were two main gates for entering the flat. The outer gate was of channel but I cannot say about the another gate, anyone can put inside and outside his hand in the channel gate to open it". Therefore to the door there are two versions one witness says that its latches cannot be opened from inside another says it can be opened. The photographs taken by crime team photographer are Ex.Pw17/A1 to Ex.Pw17/A15. Out of these photographs Ex.Pw17/A2 shows the main gate. As per this photograph the Iron door which is the outer door is actually having gril/channel below as well as above the latch of the door and it is having sufficient cavity to access the latch from inside.
24. Version of complainant was that he could not go out of the flat because he was locked. As per him both doors were closed from outside but Pw13 deposed that only iron door was closed. It has already been observed that latches of this iron door can be accessed from inside. Therefore the complainant not only lied about being locked inside the house but he had access to the latch of iron door to show himself as locked inside the house. The possibility that he actually locked himself to show that accused left after closing the door cannot be denied.
Arrest of accused and recovery of stolen properties FIR No. 696/2017 State Vs. Rajesh Malik Page no.29/46
25. As per prosecution and IO the accused was located through CDR at Cannaught Place and he was apprehended at the instance of Pw9. However, in his examination in chief Pw9 deposed that he alongwith police went to house of accused but the aqccused was not found there. Thereafter Pw9 alongwith father of accused and police went to PS Keshav Puram and at about 11.30/12.00 he came to know that accused was arrested from Palika Bazar and he saw that accused was brought brought by the police at PS and Pw9 also came to know that from accused police ahs recovered about Rs.60000/-, the watch and his mobile phone.
26. The deposition of Pw9 regarding his arrest and recovery was, therefore, brought in doubt by Pw9 himself. However, state then cross examined Pw9 and in cross examination he deposed about arrest of accused at his instance and about recovery of stolen articles and clothes of accused in his presence. However, the arrest memo of accuse Pw9/F shows that the place of arrest was PS Keshav Puram at 5.00 pm. To this arrest memo, besides IO and Pw9, there are two more witnesses. These witnesses are SI Deepak (Pw31) and Ct. Praveen (Pw15).
27. As per Pw15 after apprehension of accused at Palika Bazar and recovery of stolen articles and other exhibits he was arrested and taken to spot and thereafter brought to police station. However, as per Pw31 after apprehension of accused and effecting recoveries seizure memos were prepared and the accused was brought to police station where his arrest was effected vide memo Ex.Pw9/F. Therefore there is a contradiction FIR No. 696/2017 State Vs. Rajesh Malik Page no.30/46 as to place and time of arrest. If this contradiction is read with examination in chief of Pw9 qua arrest of accused his version appears to be more insync with the fact that police first brought the accused to police station and then got prepared the memos or atleast made Pw9 witness to the memos.
28. There is another fact to this as Pw9 admitted in his cross examination that he remained at police station for two days, though he claimed that he remained there because of death of mother, no such fact was stated by any police witness. Defence questioned this by imputing motive of murder on complainant therefore he was detained but despite admission of Pw9 IO deposed that complainant remained with him till 8.00 pm of 25.10.2014 only. The IO is also contradicting the complainant when he deposed that complainant did not accompany him when he went to house of accused and met his father.
29. In all the memos after apprehension of accused the complainant is witness no.3 when he has already claimed that he was in PS when police brought the accused. However, complainant is not a witness to any memo prepared at spot by IO, despite the presence of complainant at the spot. Further complainant is also not a witnness to disclosure statement Ex.Pw15/N which is supposed to be recorded in presence of complainant.
30. Therefore I have no hesitation in holding that all the admissions given by Pw9 in cross-examination by State are FIR No. 696/2017 State Vs. Rajesh Malik Page no.31/46 nothing but an attempt to cover the truth which he mistakenly spoke before court.
31. So far as recovery is concerned, prosecution has not specified the time of apprehension of accused. However, cross examination of IO reveals that the police reached Connaught Place at about 1.00 pm. The CDR of accused Ex.Pw26/H shows that 11.27.46 was the time when last outgoing call made by accused to Pw11. The testimony of Pw11 is that he too was admitted in drug de-addiction center where he met accused and complainant and on 24.10.2014 accused called him again and again. He did not want to talk to accused so he did not pick his phone. Later accused told sister of Pw11 that he call to wish for Diwali and before he went to sleep accused called him from phone of complainant. The CDR of complainant have last two calls to Pw11 at phone no. 8826686766.
32. From his testimony Pw11 is showing like he was never interested in talking to accused. He even deposed in cross examination that he never talked with accused from 21.10.2014 to 23.10.2014. The CDR of Pw11 was also collected by prosecution but the same was not proved. However, the CDR of accused Ex.Pw27/H shows that Pw11 was in contact with accused since 22.10.2014. On 22.10.2014 Pw11, after receiving SMS from accused at 13.25, sent two messages to accused at 13.34 and 13.36. Thereafter he received SMS from accused at 13.53. Thereafter on 22.10.2014 itself he received 3 calls from accused and talked for 148, 337 and 452 seconds respectively. On FIR No. 696/2017 State Vs. Rajesh Malik Page no.32/46 next day also i.e. on 23.10.2014 he received call from accused at 06.03 pm and talked for 84 seconds.
33. Even on 24.10.2014 Pw11 attended calls of accused at 10.23 am and at 3.34 pm and thereafter after talking for 131 seconds at 5.34 pm he sent SMS to accused at 6.31 pm. This is the time when accused and complainant were drinking at the house of complainant. After that accused calls him at 7.31 pm and they talk for 19 seconds.
34. Pw11 deposed that on next date i.e. 25.10.2014 he saw missed calls from accused therefore he called him back and accused told him to reach Palika Bazar. This deposition is completely false. CDR of accused shows that on 24.10.2014 at 22.28.53 Pw11 received SMS from accused to which he replied at 22.33.34. Thereafter accused again sent him SMS at 22.35.01 to which he replied at 22.35.29. So there was no missed call from accused in the night of 24.10.2014. The IO, despite getting the CDRs of accused and Pw11 did not retrieve the SMSs of accused and Pw11 to ascertain what was their conversation. Or it can also be said that IO went through their SMSs but did not find anything against accused or there was something favoring accused.
35. Even for 25.10.2014 Pw11 has lied by deposing that he called the accused. CDR of accused shows no call from Pw11. All it shows are two SMSs sent from Pw11 to accused at 10.45.14 and 10.45.18 and thereafter there are last two calls made FIR No. 696/2017 State Vs. Rajesh Malik Page no.33/46 by accused to Pw11. Therefore the entire case of prosecution that accused was traced on the information from Pw11 and on identification of Pw9 appears to be false. It rather suggests that police took Pw11 to Palika Bazar and on confirmation from Pw11 about the identity and the person calling, accused was apprehended.
Death of Smt. Sheela Khanna
36. Smt. Sheela Khanna was found dead in her room. She was lying on bed. The post mortem report Ex.Pw7/A shows that deceased was having three external injuries i.e. a reddish colored bruise 4x1 cm on right cheek below left eye, reddish colored bruise 2x.2 cm on chin below lower lip and reddish colored bruise 2.3x1.2 cm on left side of front of neck. As per PM report opinion as to cause of death is asphyxia as a result of manual strangulation, via the injury no. 3 on the neck which is sufficient to cause death in ordinary course of nature. The injury no.3 shows that the perpetrator intended to kill Smt Sheela Khanna for there cannot be any other reason for strangulation. However, the other two injuries i.e. below lower lip and below left eye were caused by blunt force impact and all the injuries were antemortem and fresh in duration prior to death.
37. This means that before Smt. Sheela Khanna was strangulated to death she was given at least two blows to knock her out. If that is the case there must have been some struggle from deceased with the murderer. This also reflects from the crime team report Ex.Pw22/A, seizure memos of slippers of FIR No. 696/2017 State Vs. Rajesh Malik Page no.34/46 deceased Ex.Pw15/D, seizure memo of artificial teeth of deceased Ex.Pw15/K, site plan Ex.Pw2/B and the testimony of police witnesses who lifted the exhibits from spot. What transpires from these memos and testimonies is that one of the slipper of deceased was near gate of kitchen and another was near the gate of room of deceased and her artificial teeth were also lying near the gate of room of deceased.
38. It is imputed on accused that he choked the deceased from behind and gauged her mouth till she lost control over her body and after that accused laid her on bed, however, she was not dead and her body was moving therefore he waited for some time and after she breath her last he opened the almirah and the locker and took cash, chain and watch then went to room of complainant and took his mobile and left after bolting the main gate from outside. This is what police has recorded in confession of accused.
39. However, police appears to have forgotten that deceased was having a blunt force bruise on the right cheek below left eye which means she was punched/slapped/hit with right hand or object used with right hand from front. Even the injury below lower lip is caused by blunt force which also means that she was hit on her face from front. Had these injuries were caused by accused and he had made voluntary confession his disclosure statement Ex.Pw15/H must have had the explanation of these two injuries.
40. On the other hand complainant has admitted in his cross FIR No. 696/2017 State Vs. Rajesh Malik Page no.35/46 examination that deceased was not happy when he saw him drinking with accused. Cross examination also shows that complainant was so habitual that he used to finish a bottle in a day. He was a desperate drunkard that he sold his laptop to Pw14 and on 24.10.2014 he went to Pw14 to get his balance and out of that balance money purchased two quarter bottles. It is pertinent to mention here that complainant lied about his leaving phone at home and going to temple and also about seeing missed calls of accused. He was the one who called accused for the first time on 24.10.2014. Therefore he must have requested accused to arrange liquor.
41. Having such a desperate adopted son at home it is unbelievable that deceased, who was not happy with drinking habits of complainant would keep any money or valuable article in her almirah without even putting a lock or would not put the lock after seeing complainant getting drunk. The disclosure of accused which appears to be involuntary makes no mention of searching the key of almirah and locker before accused opened it. There is no recovery of any key of almirah or locker during investigation.
42. The flat was owned by deceased. Complainant had eye on that flat as he wanted to sell that falt. This fact is deposed by Pw25 who was called to prove admissions of complainant and accused in De-addiction Center, Dayaneeta Social Welfare Society. Pw25 is the general secretary of society who aslo used to counsel the addicted persons because he himself was once an FIR No. 696/2017 State Vs. Rajesh Malik Page no.36/46 addict. This witness deposed in cross examination that during his counseling Siddarth i.e. complainant told him that he wanted to sell his mother's property. So the complainant wanted to sell the property of deceased but he could not as long as the owner is alive and do not consent.
43. Therefore as rightly suggested by the defence the complainant is a person with motive, opportunity and benefit of murder of deceased. And given the conduct of complainant that he is lying at every stage points the suspicion towards him for murder of Smt. Sheela Khanna. The suspicion on complainant is more than that on accused.
44. During investigation Pw25 provided the certificate regarding accused which is proved as Ex.Pw25/A. This certificate shows that accused was admitted in de-addiction center from 01.04.2014 to 22.06.2014 to get rid of his habit of consuming Ganja and sniffing fluid etc. However, on 29.06.2014 accused returned to de-addiction center to work as a volunteer and he was given chance as it was beneficial for his recovery. Unfortunately on 19.10.2014 his father Sh. SD Malik came and took him back. On 6th day he was arrested for murder of mother of friend. It appears that accused became a suitable scapegoat for complainant when he was desperately looking for arrangement of alcohol, as two quarters purchased from money received from Pw14 was not sufficient. There is a strong possibility that complainant took accused to his house with a plan in his head to implicate him in murder of his mother and implicated the accused FIR No. 696/2017 State Vs. Rajesh Malik Page no.37/46 after execution of his plan. Had it been accused who committed murder he had no reason to leave the complainant alive.
45. As the case is based on circumstantial evidence and the circumstances led by prosecution, being full of doubts, are not proved beyond reasonable doubt and they do not lead to the hypothesis that it must be the accused who had committed the offence, because complainant is a possible accused, I am of the view that the prosecution has failed in discharging its burden to prove the case against accused beyond reasonable doubts. Therefore the accused is acquitted of all the charges leveled against him.
Digitally signed by VIKRAMVIKRAM Date: Date : 20.04.2023 2023.04.20 16:02:37 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/20.04.2023 Dictated on : 20.04.2023 Transcribed on : 20.04.2023 Digitally signed by checked on : 20.04.2023 VIKRAM Signed on : 20.04.2023 VIKRAM Date: 2023.04.20 16:02:46 +0530 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/20.04.2023 FIR No. 696/2017 State Vs. Rajesh Malik Page no.38/46 Annexure 'A' List of Prosecution Witnesses S.No. PW No. Name of Witness Details of Witness 1. PW-1 HC Manoj MHC(M) 2. PW-2 Insp. Manohar Lal Draftsman 3. PW-3 HC Dharambir Singh Duty Officer 4. PW-4 L/Ct. Anita Witness regarding search of dead body 5. PW-5 HC Hans Ram Duty Officer 6. PW-6 Ct. Satbir Singh Special Messenger 7. PW-7 Dr. Jatin Bodwal Department of Forensic Medicine, DDU Hospital 8. PW-8 Mukesh Khanna Identified dead body at BJRM Hospital 9. PW-9 Sidharth Khanna Complainant 10. PW-10 Avnish Tripathi CMO, BJRM Hospital 11. PW-11 Neeraj Singh Witness to statement under Section 161 Cr.P.C. 12. PW-12 Promila Mehrotra Witness to statement under Section 161 Cr.P.C. 13. PW-13 Manmohan Mehrotra Witness to statement under Section 161 Cr.P.C. 14. PW-14 Ankur Pokhriyal Witness to statement under Section 161 Cr.P.C. 15. PW-15 Ct. Praveen Visited the spot alongwith SI Deepak Bhardwaj 16. PW-16 HC Sunder Lal Prove PCR call book FIR No. 696/2017 State Vs. Rajesh Malik Page no.39/46 dated 24/25.10.2014 17. PW-17 Ct. Sandeep Photographer 18. PW-18 Deepak Khanna Dead identification 19. PW-19 Ct. Ramesh Kumar Deposited case property with FSL Rohini 20. PW-20 Ct. Kapil Deposited case property with FSL 21. PW-21 SI Sazid Hasan Finger print expert 22. PW-22 ASI Rajbir Incharge Mobile Crime Team 23. PW-23 Ct. Dinesh 24. PW-24 Surender Singh Chief Section Supervisor, Shakti Nagar, Telephone Exchange, MTNL, Delhi 25. PW-25 Amit Kumar Join the investigation with IO on direction of DO 26. PW-26 Israr Babu Alternate Nodal Officer 27. PW-27 Chandra Shekhar Nodal Officer 28. PW-28 Shailender Arora PRO, MTNL, Sector 3 Rohini 29. PW-29 Manisha Upadhyaya Assistant Director Biology Division, FSL, Rohini 30. PW-30 Ct. Sanju PCR Form CPCR 31. PW-31 SI Deepak Bhardwaj 1st IO 32. PW-32 Inspector Surender IO 33. PW-33 Kavita Goyal Assistant Director Chemistry, FSL Delhi FIR No. 696/2017 State Vs. Rajesh Malik Page no.40/46 Annexure 'B' List of Exhibits S.No. Exhibit No. Details of Remarks Documents 1. Ex. Pw 1/A Affidavit 2. Ex. Pw 1/B to Copies of entries no. 1/D 2897, 2898 & 2899 of register no. 19 3. Ex. Pw 1/E & Copy of RCs 1/F 4. Ex. Pw 2/A Affidavit 5. Ex. Pw 2/B Scaled site plan 6. Ex. Pw 3/A Affidavit 7. Ex. Pw 3/B DD no. 7A 8. Ex. Pw 4/A Affidavit 9. Ex. Pw 5/A Affidavit 10. Ex. Pw 5/B Copy of FIR 11. Ex. Pw 5/C Endorsement on ruqa 12. Ex. Pw 6/A Affidavit 13. Ex. Pw 7/A Report 14. Ex. Pw 7/B Subsequent opinion bearing no. 16/15 dated 05.02.2015 15. Ex. Pw 8/A Dead body identification statement 16. Ex. Pw 9/A Statement complainant 17. Ex. Pw 9/B Site plan 18. Ex. Pw 9/C Dead body identification FIR No. 696/2017 State Vs. Rajesh Malik Page no.41/46 statement 19. Ex. Pw 9/D Seizure memo Green colour bag containing Rs. 60,007/-, one gold colour chain watch and Micromax mobile phone 20. Ex. Pw 9/E Seizure memo of Blue jeans pant and clothes of accused black shirt 21. Ex. Pw 9/F Arrest memo of accused 22. Ex. Pw 9/G Personal search memo of accused 23. Ex. Pw 10/A MLC 24. Ex. Pw 15/A Seizure memo Blood stained chunni 25. Ex. Pw 15/B Cover piece of mattress 26. Ex. Pw 15/C Seizure memos Empty water bottle to Ex PW of Bisleri, pair of 15/M slipper, bottle of liquor 'Courrier Napoleon French Brandy' two glasses (one steel and one plastic), one bottle filled with liquor make 'Bejos Blanded Grape Brandy', one match box, bed sheet, artificial teeth, visiting cards & 16 pieces of brunt bidi 27. Ex. Pw 15/N Disclosure statement 28. Ex. Pw 15/O Pointing out memo 29. Ex. Pw 16/1 Affidavit 30. Ex. Pw 17/1 Affidavit FIR No. 696/2017 State Vs. Rajesh Malik Page no.42/46 31. Ex. Pw 17/A1 Photographs to Pw 17/A15 32. Ex. Pw 17/B Certificate under Section 65-B of Indian Evidence Act 33. Ex. Pw 18/A Dead body identification memo 34. Ex. Pw 18/B Dead body handing over memo 35. Ex. Pw 21/A Report of crime team 36. Ex. Pw 22/A Report 37. Ex. Pw 23/A Seizure memo One viscera box and sample seal 38. Ex. Pw 23/B Seizure memo Clothes of deceased and sample seal 39. Ex. Pw 24/A Customer application form 40. Ex. Pw 24/B Specimen sheet of signatures 41. Ex. Pw 24/C Booking slip 42. Ex. Pw 24/D Slip regarding issuance of the telephone number with STD facility 43. Ex. Pw 24/E Office order 44. Ex. Pw 25/A Certificate issued by De-addiction center 45. Ex. Pw 25/B Receipts regarding & Pw 25/C depositing the fees 46. Ex. Pw 25/D Copies of relevant & Pw 25/E entries regarding admission and discharge of Siddharth Khanna 47. Ex. Pw 25/F Copies of relevant FIR No. 696/2017 State Vs. Rajesh Malik Page no.43/46 & Pw 25/G entries regarding admission and discharge of accused 48. Ex. Pw 26/A Letter dated 08.01.2015 49. Ex. Pw 26/B Certified copy of customer application form 50. Ex. Pw 26/C Copy of Voter I-card 51. Ex. Pw 26/D CDR of mobile no. 9899598379 52. Ex. Pw 26/E Certificate under Section 65-B of Indian Evidence Act 53. Ex. Pw 26/F Certified copy of customer application form 54. Ex. Pw 26/G Copy of Voter I-card 55. Ex. Pw 26/H CDR of mobile no. 9811113560 56. Ex. Pw 26/I Certificate under Section 65B of Indian Evidence Act 57. Ex. Pw 26/J ID Chart 58. Ex. PW 26/K Customer application form 59. Ex. Pw 26/L Copy of rashan card 60. Ex. Pw 27/A Customer Mobile No. application form 9818500719 61. Ex. Pw 27/B CDR from 20.10.2014 to 30.10.2014 62. Ex. Pw 27/C Customer 8826013499 (colly) application form and copy of Voter I Card FIR No. 696/2017 State Vs. Rajesh Malik Page no.44/46 63. Ex. Pw 27/D CDR from 20.10.2014 to 30.10.2014 64. Ex. Pw 27/E Certificate under Section 65B of Indian Evidence Act 65. Ex. Pw 27/F Cell ID chart 66. Ex. Pw 28/A CDR from Mobile No. 16.10.2014 to 27108037 31.10.2014 67. Ex. Pw 28/B Certificate under Section 65-B of Indian Evidence Act 68. Ex. Pw 29/A Report of FSL 69. Ex. Pw 29/B Report of FSL 70. Ex. Pw 30/A Form-1 71. Ex. Pw 30/B Certificate under Section 65-B of Indian Evidence Act 72. Ex. Pw 31/A Form 23.35(1) B 73. Ex. Pw 31/B Ruqa 74. Ex. Pw 31/C Pointing out memo 75. Ex. Pw 33/A Report of FSL 76. Ex. P1 Mobile phone Micromax 77. Ex. P2 SIM Cards (collectively) 78. Ex. P3 Golden colour chain (collectively) watch make SEIKO 79. Ex. P4 Brandy Bottle Courrieer Napolean French Brandy 80. Ex. P5 Bottle of Brandy BEJOIS 81. Ex. P6 Three deodrants, one cigarette packet (Navy Cut) and one pouch of tabacco FIR No. 696/2017 State Vs. Rajesh Malik Page no.45/46 82. Ex. P7 Currency notes 83. Ex. P8 Empty water bottle of Bisleri 84. Ex. P9 One pair of slipper 85. Ex. P10 Match box make SHIP 86. Ex. P11 Artificial teeth 87. Ex. P12 Burnt pieces of bidi 88. Ex. P13 Visiting card of Malik Property Place 89. Ex. P14 Blood stained chunni 90. Ex. P15 Bed sheet 91. Ex. P16 Piece of cover of mattress 92. Ex. P17 One ladies suit 93. Ex. P18 One blue colour jeans and Black colour shirt 94. Ex. P19 Two glasses (one steel and one plastic) FIR No. 696/2017 State Vs. Rajesh Malik Page no.46/46