Delhi District Court
Further, In Sharad Bidhi Chand vs State Of Maharashtra, 1984 on 25 September, 2013
In the court of Additional Sessions Judge03, North East District,
Room No.53, 2nd Floor, Karkardooma Courts, Delhi.
In the matter of
SC No. 95/10
FIR NO. 123/09
PS M.S. Park
U/s 302/397/404 IPC
State (Govt. of NCT of Delhi)
Versus
Rinku Sharma s/o Phool Chand
R/o Village Bhatoli, PS Dataganj,
Distt. Badaun, U.P.
Date of Institution: 05.03.2010
Decision reserved on: 18.09.2013
Date of decision: 25.09.2013
JUDGMENT
1.1 (Case of Prosecution) : The salient feature of the case, as set out is as follows: "On 24.3.2009 at 7.40 AM, an information was received in PS M.S. Park which was recovered as DD No.5A (now Ex.PW15/A) that a dead body was lying near MTNL Office, Shahdara, Flyover. DD entry was handed over to ASI Gurvinder Singh (PW23) who FIR NO. 123/09, PS M.S Park 1/32 alongwith Const. Deepak Kumar (PW2) reached at the location and found there a dead body of male, its head was in the east direction and legs were towards west direction, it was wearing offwhite pants and T shirt which was bearing words UBU THE COLLECTION SINCE 1992, there was a belt on the trouser worn by deceased, a lady wrist watch make Lobor on its left hand, there was thread (mauli) tied on his right hand and there was a green colour checkdar gamchha around the neck of dead body. There was blood on the face of body, on its head and some blood was also lying on the road. One red colour handkerchief was also lying on the road near the dead body. The tongue of deceased was appearing between teeth, he was about 2022 years, he was of shallow colour and beared slight mustache. There were bruise marks on his face, head and right leg besides ligature mark on the neck.
Since no eye witness was found, PW23 ASI Gurvinder Singh reduced facts it into writing and FIR (no. 123/09, PS M. S Park - now Ex. PW22/A) u/s 302/201 IPC was got registered, the other Inspector Ravinder Ahlawat (PW25) also reached there. The crime team was called, PW13 ASI Harinder Singh alongwith Incharge SI U. Balashankaram reached at the spot, who snapped 11 photographs [(now Ex.PW13/A1 to A11, its negatives (Ex.PW13/B1 to B11)].
FIR NO. 123/09, PS M.S Park 2/32 1.2 PW25 Inspector Ravinder Ahlawat inspected the spot, he
seized blood, the bloodstained earth and earth control (vide seizure memo Ex.PW23/B); the articles (Ex.PZ collectively) gamchha, one red colour handkerchief, one lady wrist watch make Lobar from the left hand of deceased, one key bearing word made in China and a coin of Rs.2/ were discovered from the trouser of deceased (when searched for ascertaining the identity of deceased), same were seized as per memo (Ex.PW23/C). The dead body was also taken into possession and sent for preservation and for postmortem to GTB Hospital. Unscaled site plan (Ex.PW25/A) and scaled plan (Ex.PW3/A) were got prepared.
1.3 On 24.3.2009, PW20 Mohd. Kasim (employer of deceased) and PW4 Naseem ( elder brother of deceased) came to P.S. for report, since he did not return from the job and he was not responding the telephone call given to the deceased on mobile phone. On their description of missing person, they were taken to GTB Hospital and they found and identified Rashid (deceased) (who is employee of PW20 and younger brother of PW4), Thus, inquest proceedings (Ex.PW25/B) were conducted, his dead body was identified by them as per proceedings (now Ex.PW4/A & Ex.PW20/A) and after postmortem, the dead body was handed over to PW4 Naseem under FIR NO. 123/09, PS M.S Park 3/32 acknowledgment (Ex.PW4/B). The postmortem was carried by PW8 Dr. S.K. Verma, who gave his report (Ex.PW8/A), with opinion "cause of death is asphyxia due to ligature strangulation".
When postmortem on the dead body of deceased was carried, its apparels with blood gauze (Ex.PX collectively) were taken, the same were seized (vide seizure memo Ex.PW2/A) which were handed over by PW2 to the investigating officer.
1.4 It revealed in investigation that on the evening of 23.3.2009, PW4 had handed over his handset mobile phone of No.9958016498 make China to Rashid and he was also having NOKIA mobile phone of no.9873183739, he was carrying both the phones and later when he failed to return from his job of unloading the saria / iron and after weighing the empty bullock cart at Amit Dharamkanta, he was not responding the telephone calls of PW20 or PW4. Then mobile phones were kept on track, by the police.
1.5 In investigation, it is surfaced that PW6 Siya Ram is having mobile phone No. 9759502580 (having IMEI NO.358993016475960) and on 24.3.2009 at about 1.30 p.m., a telephone call was attended by PW17 Smt. Ram Beti, relative of accused Rinku, since Ram Beti lives in the neighbour of PW6 Siya Ram and PW7 Smt. Usha Devi. It has also been discovered that SIM Card of phone No.9873183739 FIR NO. 123/09, PS M.S Park 4/32 was used by using hand set of PW10 Rakesh (carrying IMEI NO.3595330163939130). The police had succeeded to recover said mobile phone, it was seized, however, the SIM Card could not be recovered. The call details (Ex.PW11/B, Ex.PW19/A, Ex.PW18/A) were collected, compared and ultimately the accused Rinku Sharma, a rickshaw puller (who was plying the cycle rickshaw by hiring it from PW9 Gulnawaj Khan) was apprehended and charge sheeted.
2. (Charge) After compliance of provisions of Section 207 and 209 Cr.P.C., the case was committed to the court of Sessions, it was opened by the State.
The accused Rinku Sharma had been charged u/s 392 IPC that on the intervening night of 23/24.3.2009 but before 7.40 a.m., at side Arm Shahdara Flyover in front of Aggarwal Timber, A8, M.S. Park, G.T. Road, Shahdara, Delhi, he committed robbery of Rs.260/ and two mobile phones one mobile set of NOKIA Model 6070, IMEI NO.351868019528590 having number 9873183739 and another mobile phone having No.9958016498 which were the property of deceased Rashid s/o Naimuddin. He had also been charged u/s 302 IPC that at the aforementioned date, time and place, he committed murder of Rashid intentionally after strangulating his neck by cloth wrapped around his neck and he has also been charged u/s 404 IPC FIR NO. 123/09, PS M.S Park 5/32 that on 24.3.2008 at about 7.30 p.m., and 2 p.m., he dishonestly misappropriated the simcard of mobile phone No.9873183739 belonging to Rashid, at the time of his death. However, the accused pleaded not guilty and claimed trial, thus, case was put the prosecution evidence.
3. (Prosecution evidence): In order to establish the charges, the prosecution has examined 25 witnesses, the purposes of their examination (vis a vis their cross examination on behalf of accused) are classified and enumerated as follows: (1) PW23 ASI Gurvinder Singh, No.2170/NE, PS : to prove that immediately on receipt of DD NO.05A (Ex.PW15/A), he reached the spot and prepared ruqqa (Ex.PW23/A) for registration of FIR, he called up the crime team vis a vis he remained associated with IO PW25 Inspector Ravinder Ahlawat during investigation at spot, witness to seizure memos (Ex.PW23/B, Ex.PW23/C) and during inquest proceedings and handing over the dead body to the relatives. (PW23 was cross examined on behalf of accused for proving that neither he joined any investigation nor he is witness to the documents nor the same were prepared in his presence).
(2) PW2 Const. Deepak Kumar, No.481/NE, DCP Office, Dosier Cell, Seelampur, Delhi to prove that on 24.3.2009, he accompanied FIR NO. 123/09, PS M.S Park 6/32 PW23 ASI Gurvinder Singh, he got the FIR registered by taking ruqqa to P.S., and also subsequently remained present when dead body of deceased was identified by witnesses in the mortuary on 25.3.2009 or on the postmortem on the dead body on 26.3.2009; he also handed over the sealed pullanda to the IO, which were given by the doctors of hospital.
(3) PW25 Inspector Ravinder Ahlawat, No.D3404, PS Cannaught Place, New Delhi To prove that he is Investigating Officer, after recording of FIR (Ex.PW22/A) he carried further investigation till its conclusion and during his phase of investigation not only material articles were collected from the spot but also articles lying on the person of deceased on spot, the articles handed over by the doctors in sealed pullanda vis a vis the recovery effected during investigation from the accused including one mobile handset, rickshaw cycle, the material articles were also sent to FSL for scientific opinion and also obtained FSL result (Ex.PX1) vis a vis the call details involving mobile hand set of PW6 Siya Ram, of PW10 Rakesh, of deceased Rashid and of PW4 Naseem. He concluded the investigation. (He has been cross examined in detail, to bring home that neither the investigation was fair nor it was carried properly or the accused was implicated falsely).
FIR NO. 123/09, PS M.S Park 7/32 (4) PW13 ASI Rajender Singh, N o.2197/NE, Mobile Crime Team,
North East District, Delhi to prove that immediately on receipt of call, he reached the spot with his camera, he snapped 11 photographs (Ex.PW13/A1 to A11), having negatives (Ex.PW13/B1 to B11). (He has been cross examined on behalf of accused to establish that he had not visited the spot nor took the photographs).
(5) PW3 SI Mukesh Jain, Draftsman, North East District, Delhi to prove that on 24.3.2009, he alongwith IO visited the spot i.e. side Arm, Shahdara Flyover in front of A.S. Aggarwal, Timber, M.S. Park, Delhi, inspected the spot, prepared rough notes and measurements and then prepared scaled site plan (Ex.PW3/A).
(6) PW21 Inspector Jaivir Singh, No.D279, PS Barakhamba Road, New Delhi to prove that during investigation and on the instruction of PW25 Inspector Ravinder Ahlawat on 03.04.09, he alongwith other police officials proceeded to Barelli, U.P., also at District Pilibhit and also at District Rudrapur to discover and verify the facts (he has been cross examined from the angle that he had not joined the investigation or that he had not gone to the said places).
(7) PW24 ASI Pramod Kumar, No.3056, N/W, PS Adarsh Nagar - to establish that on 03.04.09 he joined the investigation with Inspector Jaivir Singh (PW21) and others and also joined FIR NO. 123/09, PS M.S Park 8/32 investigation on subsequent dates on 7.4.2009, 9.4.2009 and also on 10.4.2009 when accused Rinku was arrested. He is a witness to the memo prepared at such occasions. (He has been cross examined on behalf of accused to establish that neither he joined the investigation at any point of time with any officer or he is not witness to any investigation).
*** ..............................................................................................*** (8) PW4 Naseem s/o Naimuddin, R/o Village Bijwar, District Araria, Bihar - to prove that not only he is elder brother of deceased Rashid but also that telephone No.9873183739 make NOKIA was belonging to deceased, PW4 had given his mobile No.9858016498 make China to him on the evening of 23.3.2009,vis a vis he had gone to deliver iron rod (saria) but never came back and he was not responding the phone being 'switched off', when calls were made by him and also to prove the identity of deceased. (He has been cross examined on behalf of accused to suggest that Rashid was drunker, he was vagabond and PW4 never gave any statement to the police nor he had given his phone handset to the deceased).
(9) PW20 Mohd. Qasim, s/o Mohd. Miyanzul, R/o H.No.226, Pratap Khand, Jhilmil Colony, Delhi to prove that he was employer of deceased Rashid, he had gone to deliver the material iron rod, FIR NO. 123/09, PS M.S Park 9/32 when he did not come back nor the replied telephone call, responding switched off, the said PW20 went to PS to lodge report, where he gave description of Rashid on receiving certain informations, the Rashid was found in mortuary and Rashid was identified by him. PW20 also identifies the body of Rashid in photographs (Ex.PW13/A1 to A11). (He has been cross examined in detail to establish that nothing happened as alleged by him in his statement) nor he was aware of any fact, but PW20 got eliminated Rashid, as he was frequently visiting house of PW20).
*** ..............................................................................................*** (10) PW8 Dr. S.K. Verma, Professor Department of Forensic Medicine, UCMS, GTB Hospital to prove that on 24.3.2009, he carried the postmortem examination on the dead body of Rashid aged 20 years, male and he gave his detailed report (Ex.PW8/A) as well as the cause of death was asphyxia ligature strangulation. *** ..............................................................................................*** (11) PW17 Ram Beti d/o Badshah, R/o Village Maholia, PS Dilsanda, District Pilibheet, U.P. to prove that on 24.3.2009 at about 1.30 p.m., she had telephone talk with accused Rinku on the telephone instrument of PW6 Siya Ram, when called by PW7 Smt. Usha Devi in the neighbour. (She has been cross examined from the FIR NO. 123/09, PS M.S Park 10/32 angle that no such talk took place between her and the accused). (12) PW7 Smt. Usha Devi w/o Siya Ram, R/o Village Maholia, PS Bilthanda, Tehsil Bisalpur, District Pilibheet, U.P. - to establish that on 24.3.2009, Smt. Usha Devi received telephone call on the instrument of her husband, PW6 Siya Ram, the caller was Rinku, who requested to call Jagat Pal, but he was not present and PW7 Ram Beti talked to accused Rinku on the said phone. (PW7 has been cross examined on behalf of accused to prove that there was no conversation between PW Ram Beti and accused Rinku on 24.3.2009 at 1.30 p.m. nor there was any occasion for the accused Rinku to call her).
(13) PW6 Siya Ram s/o Sri Ram, R/o Village, PS Bilthanda, Tehsil Bisalpur, District Pilibheet, U.P. - to establish that mobile No.9759502580 belongs to Sh. Siya Ram and there was circumstances and occasion on 24.3.2009, for PW17 Ram Beti to attend the call of accused Rinku Sharma as phone was lying at PW6's residence, where his wife PW7 Smt.Usha Devi was present. (Whereas he has been cross examined from the angle that neither he was knowing anything personally nor he was aware of any fact as he was not present at his home or he is a hearsay witness. *** ..............................................................................................*** FIR NO. 123/09, PS M.S Park 11/32 (14) PW11 Sh. Israr Babu, Nodal Executive, Vodafone Essar Mobile Service Ltd., C45 Okhla PhaseII, New Delhi - to establish that mobile phone No.9873183739 was issued in the name of Mohd. Qasim (PW20) and phone No.9759502580 was issued in the name of PW6 Siya Ram vis a vis to prove the detail of calls (Ex.PW11/A, Ex. PW11/D of relevant period and date). (However, he has been cross examined on behalf of accused to establish that neither PW11, Nodal Executive, Vodafone Essar Mobile Service Ltd. maintains proper record nor they carried verification of customers as per rules nor the record is as per law).
(15) PW19 Tarun Kumar, Nodal Officer, Bharti Airtel Ltd., D184, Okhla Industrial Ara, Phase1, New Delhi to prove whom the mobile phone No. 9958016498 issued was in the name of Pankaj Kumar vis a vis on which instrument it was used during 1.3.2009 to 24.3.2009 the relevant period (whereas, he was cross examined on behalf of accused that the record brought was not proper nor it deciphers complete information).
(16) PW12 Ram Hari Singh, Sub Divisional Engineer, Mobile Service, 9 CGO Complex, New Delhi to establish the call detail of mobile phone 9968494559 of PW10 Rakesh for the period 20.3.2009 to 26.3.2009, (however, he has been cross examined by opposite side FIR NO. 123/09, PS M.S Park 12/32 from the angle that PW12 had no personal information about the case).
(17) PW18 Sh. A.P. Singh, S.D.E., CGO Complex, New Delhi - to prove the call details of mobile connection No.9968494559 of PW10 Rakesh for the period 21.3.2009 to 26.3.2009 vis a vis the instrument used between this period (however, he was cross examined from the point of view that PW18 had no personal information or the record is manipulated).
*** ..............................................................................................*** (18) PW5 Shane Alam @ Bhura, s/o Sirajuddin, R/o H.N o.C/15, Masjid Wali Gali No.1, Babarpur, Shahdara, Delhi to establish that on the night / around 9.20 p.m. 9.30 p.m. of 23.3.2009, the witness PW5 Shane Alam @ Bhure alongwith Rashid (since deceased) had unloaded the iron saria in Ramesh Park and it was weighed at Dharam Kanta and after unloading the material, it was again weighed at Amit Dharam Kanta vide receipt (Ex.P1) and then Rashid and PW5 disbursed. (Whereas he has been thoroughly cross examined on behalf of accused for proving that neither PW5 was accompanying Rashid nor anything happened as alleged or he was not aware of any fact but he is a introduced witness).
FIR NO. 123/09, PS M.S Park 13/32 (19) PW9 Gulnawaj Khan s/o Lt. Sh. Anwar Ali, R/o D22/7E, Gali No.3, Madhuwan Mohalla, Maujpur, Delhi - to establish that he is operating cycle rickshaw garage and in the month of March 2009, he hired cycle rickshaw to accused Rinku Sharma. The cycle rickshaw was bearing word "Bareilly wale".
(20) PW10 Rakesh s/o Sh. Mukut Lal, R/o Village Bhatoli, PS Data Ganj, District Badaun, U.P. - to establish that he had mobile phone connection No.9968494559 and he has NOKIA mobile phone handset model 1200 bearing IMEI NO.359533016939130, PW10 was asked by accused to give his handset to him, which he had given to the accused Rinku Sharma who used it by inserting another simcard that is of mobile connection of Rashid and the handset remained with the accused upto 2.00 PM of 24.03.2009 (he was not cross examined on behalf of accused but on behalf of State, as he resiled from his earlier statement but stated he had left the handset in garage and found there later on).
*** ..............................................................................................*** (21) PW15 H.C. Kunwar Pal Singh, NO.934, PCR, New Delhi Zone
- to establish that on 24.3.2009, he was duty officer in PS M.S. Park, an information was received, it was reduced into writing as DD NO.5 (Ex.PW15/A) which was given to ASI Gurvinder Singh (PW23).
FIR NO. 123/09, PS M.S Park 14/32 (22) PW22 ASI Saroj, NO.3157/NE, PS Adarsh Nagar, Dlehi to establish that on 24.3.2009, he was posted as duty officer in P.S. M.S. Park, on receipt of ruqqa from ASI Gurvinder Singh through Const. Deepak, he recorded formal FIR No.123/09 (Ex.PW22/A)(he has been cross examined on behalf of accused to prove that FIR is ante dated and ante timed).
(23) PW1 Const. Om Prakash, No.1249/NE, PS Seemapuri, Delhi - to prove that on 24.3.2009, he was posted in P.S. M.S. Park, he was given copies of FIR and envelope to deliver them to the area M.M. and Sr. Officers of police, accordingly, he delivered the same at the residence of Magistrate and ACP concerned.
(24) PW14 H.C. Naresh, No.51/NE, PS Sonia Vihar - to prove that he was working as MHC(M) in PS M.S. Park and he discharged his duties with regard to this case FIR NO.123/09 on 24.3.2009, 26.3.2009, 10.4.09, 22.4.2009 and 4.8.2009 when he maintained the register No.19 by incorporating all relevant entries, inclusive of sending the articles of FSL through Const. Rajan vide road certificate No.127/07 and also made an entry on 4.8.2009 when result from FSL was received. (He was cross examined to establish that register is manipulated, the entries are ante dated and ante timed and it has not been maintained properly).
FIR NO. 123/09, PS M.S Park 15/32 (25) PW16 Const. Rajan, No.1521/NE, PS New Usmanpur - to prove that on 22.4.2009, he collected the five sealed parcels and one sample seal and forwarding letter from MHC(M) H.C. Naresh and took the same to FSL and deposited there, to say, he is carrier of samples etc. to the office of FSL.
4. Then prosecution evidence was closed.
5. (Statement of accused) It was followed by statement of accused, without oath u/s 313 Cr.P.C., however, accused has replied the general questions, he also denied all the allegations and requested that he is an innocent person, he has been implicated falsely. His defence has also been recorded, however, he has not opted for defence evidence. The case came at the juncture of final arguments. 6.1 (Arguments of parties) - Sh. R.K Pandey, Ld. APP for the State and Sh. Tarun Gautam, Advocate / Amicus Curiae for accused argued finally.
6.2 (Arguments by State) - It is submitted that accused is rickshaw puller, he has been plying cycle rickshaw by taking it on hire basis from PW9 Sh. Gulnawaj Khan. When the accused was arrested, the cycle rickshaw was also recovered from the accused. The accused had robbed the deceased Rashid of his belonging of two mobile phone and cash of Rs. 260/. The sim cards of robbed mobile phone were FIR NO. 123/09, PS M.S Park 16/32 used by accused, one of the mobile phone of sim card no. 9873183739 was inserted in mobile handset of PW10 Rakesh, a call was made to PW17 Ram Beti on 24.03.2009 at about 1.30 PM, which has been confirmed by other witnesses PW6, PW7 and PW
17. Accused could have used the said sim card because he had robbed the said Rashid. The mobile handset make Nokia bearing IMEI no. 351868019528590 has been recovered from the accused on 10.04.2009 at the time of his arrest. One of the mobile handset of make China was sold by him and similarly sim card / chip was also tried to be sold by him but he failed to get it recovered. He has also killed the said Rashid by strangulating him with a cloth, which was recovered by the police with the dead body and medical opinion also confirmed that Rashid had died because of asphyxia, there were ligature mark around the neck of Rashid. Thus, each circumstances one after the other are linking to each other, the accused had used the sim card by inserting it in the mobile handset of PW10, after the incident, it established the charges of section 392,302,404 IPC against the accused. The prosecution has established the charges against him. 6.3 (Arguments on behalf of defence) - Whereas, Ld. defence counsel has juxtaposition contention, there is no eye witness to the incident, therefore, theory of robbing of cash of Rs. 260/ or of FIR NO. 123/09, PS M.S Park 17/32 mobile phones do not sustain. It is case of circumstantial evidence but complete chain of circumstances are not existing nor proved by the prosecution. Witness PW10 does not support the case of prosecution that he had given his mobile handset to the accused but he gives some other narration, like he left his mobile hand set by keeping it charging, when leaving for meeting his mama in Loni area, and he came on the next day and his mobile phone set was found there being charged. Even his version is contrary to the call detail record as on 24.03.09 he had used the mobile phone throughout the day, but IO had not verified all the facts on the mobile phone number or call details of that day. In addition statement of PW6, PW7 and PW17 do not inspire confidence, their version are contradictory to each other and PW17 being illiterate, does not give true account and she had stated that on 24.03.2009, she had a talk in the morning with accused and prosecution case discusses about talk between PW17 and accused around 1.30 pm, how two version could be believed. The call details produced by witnesses, particular PW19, PW18, PW11 and PW12 are not presenting any evidence against the accused.
Accused in his statement u/s 313 Cr PC has also explained circumstances against PW10 Rakesh, who is a rickshaw puller but also indulged in selling second hand mobile sets however accused FIR NO. 123/09, PS M.S Park 18/32 was not ready to buy any phone from him ; in fact PW10 was extorting money from the accused and on his resistance, the PW10 was not only beating the accused but also torturing him from time to time, so as to keep the accused bow down before him and his mis deeds. Further, police claims that PW5 Shane Alam @ Bhura and Rashid (since deceased) were together in the night of 23.03.09 or in the mid night between 23.03.2009 and 24.03.2009, the bullockcart was weighted at Amit Dharamkatan, the receipt was signed and then it was handed over to the police vide memo Ex. PW5/A and it is claimed that the receipt was bearing signature, however, receipt Ex. P1 does not bear signature of anyone nor PW5 says that it was handed over by him to the police. The last association of deceased Rashid with PW5 Shane Alam @ Bhura could not have been proved. The prosecution theory with regard to rob of Rashid also fails, as per description of the body lying at the road, the investigating officer reports that there was Lobor Wrist watch on the wrist of deceased, besides other things in his pocket; would a thief or robber, who is intending to steal valuables, would leave the things ? The prosecution could not establish the case against accused. Similarly there are material contradictions in the statement of witnesses, which do not inspire confidence to believe them and accused is entitled for benefit FIR NO. 123/09, PS M.S Park 19/32 of doubt for want of proof of case beyond reasonable doubt. 7.1 (Findings) The rival contentions are assessed in the light of material on record, in the form of oral statement of witnesses or other evidence and the settled principles of law.
By reading together the entire record, it is undisputed fact that deceased is Rashid, he is relative of PW4 Naseem and PW20 Mohd Qasim, his dead body was found near MTNL office, Shahdara flyover, Delhi. His cause of death has been opined asphyxia due to ligature strangulation, photographs Ex. PW13/A1 to Ex. PW1/A 11, snapped at the spot, reflects body of Rashid. It is also appearing from the entire record that there is no eye witness, who had seen robbing or killing Rashid. To say, there is no direct evidence and it is case of circumstantial evidence. The investigation has also been carried on the basis of circumstantial evidence by taking clue on the basis of call detail record, mobile phone hand sets and its IMEI numbers.
7.2.1 What is law on circumstantial evidence, what rule of caution are to be observed while dealing with circumstantial evidence and what is the test of circumstantial evidence, it is to be seen for determining the issues in hand. There are five golden rules, which are also known as Panch Sheel, in order to satisfy the requirement of FIR NO. 123/09, PS M.S Park 20/32 circumstantial evidence. The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established : (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on the 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 conclusion consistent with innocence of accused and must show that in all human probability the act must have been done by the accused.
Further, in Sharad Bidhi Chand vs State of Maharashtra, 1984 Cr LJ 1738 = A 1984 SC 1622 it was held that a case is said to be proved only when there is a certain and explicit evidence and no person can be convicted on pure moral conviction.
FIR NO. 123/09, PS M.S Park 21/32 7.2.2 Moreover, our apex court in State of UP vs Satish AIR
2005 SC 1000 dod 08.02.2005, held that when there was no eye witness, case is based on circumstantial evidence and when the case rests upon circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstance 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 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 than of guilt of the accused and such evidence should not only be consistent with his innocence.
(5) if he evidence relied upon is reasonably capable of two interference, the one in favour of the accused must be accepted. (6) While dealing with circumstantial evidence onus was on the prosecution to prove the chain is complete and the infirmity of lacuna FIR NO. 123/09, PS M.S Park 22/32 in the prosecution cannot be cured by a false defence or plea. 7.2.3 In Joseph vs State of Kerala AIR 2000 SC 1608 dod 27.2.2000, Hon'ble Supreme Court of India, held though the witness may lie circumstances will not. But at the same time it must cautiously be scrutinized to see that incriminating circumstances are such as to lead only to an hypothesis of guilt and reasonably exclude every possibility of innocence of accused.
7.2.4 In State of Rajasthan vs Khuma AIR 2004 /SC 4677 held that circumstances should be of such conclusive nature as to exclude every other possibility except the accused being guilty of the charged offence.
7.3 Therefore, keeping in view the principles of circumstantial evidence, the feature of present case are taken to assess them in the light of settled law of circumstantial evidence. 8.1 First of all, last association of Rashid is to be seen. Rashid's last association can be gathered from the statement of PW4, PW20 and PW5 vis a vis telephone record. PW20 Mohd Qasim had telephone conversation, from his telephone number 9811366376 with Rashid on one of the telephone with him, lastly at 11.30 PM. The receipt Ex. P1 of Amit Dharamkatan reflects two visit at the Dharamkatan, firstly at 21.23 PM (i.e. 9.23 PM) on 23.03.2009 when FIR NO. 123/09, PS M.S Park 23/32 gross weight was measured and then at 1.20 AM on 24.03.2009 when Tare weight / empty weight of vehicle was carried; the receipt Ex. P1 does not show any registration number or nature of carrier weighted there. To say, as per the prosecution case, Rashid and PW5 Shane Alam remained in the association of each other upto 1.30 AM when they disbursed. The receipt Ex. P1 was seized by memo Ex. PW5/A, PW5 says that the seizure memo Ex. PW5/A bears his signature but he had not handed over the receipt Ex. P1 to the police. He explains whom the receipt was given, which was issued by Amit Dharamkatan, he names Lala Arun Gupta, whom he handed over the receipt and Arun Gupta had handed it over to contractor Hashim, with an explanation that Mr. Hashim might have been given it to the police. As per statement of PW5 there were two receipts issued by Amit Dharamkatan one was kept by Rashid and another was kept by him, however, no receipt was recovered from the possession / body of Rashid.
8.2 Now the issue with regard to mobile phone call records as well as statement of relevant witnesses namely PW11 Israr Babu, PW19 Tarun Kumar, PW12 Ram Hari Singh, PW18 Sh. A.P.Singh vis a vis statement of PW17 Ram Beti, PW6 Siya Ram and PW7 Smt. Usha Devi is to be assessed.
FIR NO. 123/09, PS M.S Park 24/32 On 24.03.09 at about 1.30 PM, accused Rinku Sharma talked to PW17 Ram Beti by using mobile phone / sim card no. 9873183739 on mobile hand set of PW10 Rakesh, by using instrument bearing no. 3595330163939130. According to PW6 Siya Ram, he was not at home on 24.03.09 but he had left his mobile phone at home and his wife PW7 Smt. Usha Devi informed him that on 24.03.09 Rinku Sharma made a call and she called PW17 Ram Beti, from neighbour, whom accused Rinku Sharma talked to her. PW25 Inspector Ravinder Ahlawat narrates that PW6 Siya Ram was asked to appear in police station on 05.04.09, since his wife Smt. Usha had attended the telephone call, she was asked to join investigation on 07.04.09 which she joined. Whereas the PW7 confirms that PW6 Siya Ram had left the mobile handset at residence on that day / 24.03.09 and her husband had inquired as who called on the telephone at about 1.30 PM on that day, that is why she was knowing that phone call was received on the mobile phone at 1.30 PM. PW17 says that it was morning hour, she was taking bath and at that time she attended one call in the morning hour but she never visited Delhi to join the investigation nor met the police official nor her statement was recorded by the police nor any inquiry was conducted by the police.
8.3 The case of prosecution is that PW10 Rakesh was requested by FIR NO. 123/09, PS M.S Park 25/32
the accused to make a call and when PW10 informed the accused that there is no balance in his account, the accused requested that he has a chip / sim card of his friend, the said PW10 gave his mobile handset and accused Rinku Sharma inserted that chip and utilized the instrument, he kept the instrument upto 2.00 PM of 24.03.09.
Whereas PW10 has not supported the case of prosecution despite cross examination on such lines by Ld. Addl. PP for State but PW10 put forward his own plea that he left his mobile phone for charging at the garage and he came back at his garage on the next day, where he found his mobile handset being charged, then he remained in the area for 10 to 15 days plying his cycle rickshaw and thence went to his native village and came back after 7 to 8 days. The witness PW10 by way of his statement intends to say that he was not knowing, who had utilized his mobile handset when he was away for one day from the garage/ his area. Statement u/s 161 Cr PC (Ex. PW 10/DA) of Rakesh was recorded on 10.04.09, it is the same date when Rinku Sharma was arrested by the police.
The Investigating Officer had collected call detail report of telephone number 9873183739 around 28.03.09 (Ex. PW11/A), calls detail of phone no. 9968494559 (Ex. PW12/A = Ex. PW18/A) of PW10 Rakesh around 26.03.09. The detail (Ex. PW19/A) of phone FIR NO. 123/09, PS M.S Park 26/32 no. 9958016498 was also collected on 29.03.09. The call detail of PW6 Siya Ram of phone no. 9759502580 (Ex. PW11/D) was also collected around 31.03.09. To say, till 31.03.13 the investigating officer had collected calls detail record of mobile phones / handsets belonging to PW6 Siya Ram, PW10 Rakesh as well as other two telephone connections which were with the Rashid. PW25 / IO had also deputed other police officials by asking them to visit outside Delhi either at Budayun or Pilibheet or Faridabad during 03.04.09 or in the first week of April 2009. However, the investigating officer had not directed any investigation in respect of PW10 Rakesh or to locate PW10 Rakesh, despite knowing and had information that his instrument was used in making call. But the inquiry was being conducted at other places, whereas PW10's particulars were already with the police, the telephone connection was in his name, for which record has also been produced; the application form (Ex. PW12/C) reflects that mobile phone connection is in the name of Rakesh Kumar. There is also no record that any investigation was carried by calling either Rakesh (PW10) or verifying his particulars prior to 10.4.09, whereas his all complete information was with the police because of calls detail report as well as particulars of the person holding mobile phone connections.
FIR NO. 123/09, PS M.S Park 27/32 8.4 As per call detail report (Ex. PW11/A) of telephone no.
9873183739 on 24.03.09 the calls were made from 07:37:3 hours to 1:47:5 and there are total seven calls by using instrument of PW10 and one of the incoming call was on the mobile phone of Siya Ram at 1:38:46. It is the same telephone connection (9873183739) on which incoming call was received at 11.40 PM on 23.03.09 but it was in the instrument bearing IMEI no. 351868019528590. To say, on 24.03.09, the telephone was utilized in the mid day for total seven calls and as per prosecution case the instrument of PW10 Rakesh was with the accused upto 2.00 PM, whereas as per PW10 when he came back at his garage, he found his instrument there, the seven calls details reflects that mobile phone was in use but there is no investigation with regard to other six calls by the IO, which carries different numbers. Similarly, PW10 has utilized his mobile phone no. 9968494559 on his instrument 359533016939130 on 24.03.09 the call details Ex. PW18/A also reflects utilization of his phone at 02:40:4 PM, 02:43:18 PM, 02:40:3 PM. Meaning thereby on 24.03.09 the telephone instrument remained inutilization on the instrument of PW10 Rakesh.
In case, the accused used the sim card upto 2.00 PM and then FIR NO. 123/09, PS M.S Park 28/32 handed over the instrument to PW10, it is not getting support from the version of PW10 Rakesh. In case PW10 is to be believed that he came there on the following day, his call detail Ex. PW18/A suggests that phone / instrument was used on 24.03.09 by him. The call detail (Ex. PW12/A) is same as Ex. PW18/A, except that call detail Ex. PW18/A is from period 20.03.09 to 26.03.09 but statement (Ex. PW 12/A) is from period 21.03.09 to 26.03.09.
8.5 Statement (Ex. PW11/B) of call detail of the mobile phone of Siya Ram (PW6) shows an incoming call at his mobile phone on 24.03.09 at about 1.30 PM.
8.6 The call details of phone no. 9858016498 are also produced (Ex. PW19/A) however, it is not in ascending or descending order but in jumbled form, the mobile phone shows SMT at 01:35:11 by utilizing the instrument 3595330163939130 but it is shown in ascending order in such statement (Ex. PW19/DA) as receipt of SMS IN.
8.7 The accused was arrested on 10.04.09, (as per arrest memo Ex. PW24/D), the pointing out memo (Ex. PW24/C) was also prepared on 10.04.09 and disclosure statement (Ex. PW24/F) was also recorded on 10.04.09. It is the case of police that particulars / address of PW10 Rakesh was discovered consequent to disclosure statement FIR NO. 123/09, PS M.S Park 29/32 of accused, whereas as per mobile phone number and calls detail of PW10, his address / particulars were already in the knowledge of police, besides the spot. It cannot be construed discovery of new facts. In Vijay Kumar Vs. State 1995 JCC 599, it was held that the facts already discovered cannot be rediscovered; discovery of fact consequent to disclosure statement could be treated as discovery of fact and the same would be admissible in evidence. Whereas the spot, call detail, telephone number, address of PW10 was already knowing to the police, they does not fall in the category of discovery of fact u/s 27 of the Indian Evidence Act.
8.8 By reading the conclusions mentioned in para 8.2 to 8.7 above, it can be gathered that oral statement of material witnesses like PW 17, PW7 and PW6 are clashing each other on the point of timings of call or joining in investigation or inquiries vis a vis the call detail produced by witnesses PW11, PW19, PW12 and PW18. In addition the statement of PW10 Rakesh is also not giving a convincing version either in support of prosecution or in support of his own, the theory of prosecution case is based on the narration given by PW10, who is holding telephone instrument of his number 9968494559 is also not making the chain complete by reading his version along with the call details of his phone, since various calls FIR NO. 123/09, PS M.S Park 30/32 made from his telephone on 24.03.09 has not been verified or inquired or investigated at the phase of investigation nor it has been elaborated in evidence.
8.9 There is no direct evidence, who has actually seen the episode or the spot and as per forwarding letter (MarkPY), the nature of crime has been described by narrating that deceased was strangulated somewhere else and he was thrown at the spot to conceal the evidence, it reflects another theory but no investigation in this regard has been reported u/s 173 Cr PC.
8.10 The accused was charged that he has also robbed Rs. 260/ of Rashid or misappropriation of sim card or mobile handset, however, there is no direct evidence nor other evidence to infer that he had robbed Rs. 260/ or misappropriated property.
8.11 There is also no evidence, to be construed scientific evidence of material or substance found at spot to be linked with the accused that he was carrying those substances either on his cloth or on his body or otherwise.
9.1 By taking stock of all the facts, features, evidence and circumstances enumerated in para 8 above and by testing them on the law of circumstantial evidence reflected in para 7 above, it can be inferred that there is no complete chain of corroboration of FIR NO. 123/09, PS M.S Park 31/32 circumstances, which may infer/ prove guilt of the accused or contrary to his innocence. Therefore, while giving the accused Rinku Sharma benefit of doubt and want of proof of charges, he is acquitted of charges u/s 302,397,404 IPC. He be set at liberty if no more required in any other case. However, he is directed to furnish personal bond in the sum of Rs. 15,000/ and surety bond of the like amount for a period of six months u/s 437A Cr PC.
Announced in open court (Inder Jeet Singh)
today i.e. Asvina 3, Saka 1935 Addl Sessions Judge03
Karkardooma Courts, Delhi
25.09.2013
FIR NO. 123/09, PS M.S Park 32/32