Delhi District Court
State vs Rahul & Anr Fir No.139/10/U/S. ... on 28 March, 2013
1
IN THE COURT OF SH. SANJEEV KUMAR: ADDITIONAL SESSIONS
JUDGEI (North): ROHINI COURTS: DELHI
SC No.67/2011.
FIR No.139/10.
PSMANGOLPURI.
U/S. 394/397/302/34 IPC.
STATE
VERSUS
1. RAHUL @ KALU S/O. MAHENDER
R/O. L283, CAMPM NO.3, NEAR SHAMSHAN
GHAT, NANGLOI, DELHI.
2. DEEPAK @ DEEPU S/O. PRABHU DAYAL
R/O. JHUGGI NO.99, CAMP NO.3,
BHIM NAGAR, NANGLOI, DELHI.
Date of Institution:08.07.2011.
Date of Arguments:26.03.2013.
Date of Judgment:28.03.2013.
JUDGMENT
1. The brief facts as per the chargesheet are that on 13.03.2010 an information was given to PCR(HQ) from mobile phone number 9901364485 that, one person has been stabbed at STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 1 of page 26 2 F2/459, Mangolpuri, Udyog Nagar, near under railway fatak where construction work was going on. The said information was passed on to PSMangolpuri through DD No.75B and same was given to SI Uma Dutt and Additional SHO was also informed. SI Uma Dutt alongwith Ct. reached at the spot. Additional SHO Inspector Manoj Sharma also reached there and they found one person aged about 40/45 years was lying dead having fresh injuries. One bicycle, radio and pair of chappal were also lying near the dead body, which appeared to be of deceased. Inspector Manoj Sharma inspected the spot. He found that blood was also ling under the railway line, as well as, on railway track. He call the crime team and Crime Team also inspected the spot and took photographs. Inspector Manoj Sharma seized the blood sample, blood stained earth and dried earth control. No eyewitness was found, therefore, he made endorsement on the DD itself and prepared the rukka and got registered the FIR u/s.302 IPC. He also prepared the site plan, sent the dead body to the mortuary. On 15.03.2010 the dead body was identified as of Suraj Lal Yadav. hence, he got conducted the postmortem examination of the dead body.
2. On 30.03.2010 on secret information IO apprehended STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 2 of page 26 3 accused Rahul and Deepak from CRP Park, Nangoi. Both accused persons have confessed to commit murder of deceased for taking money from deceased. Recorded confessional statement of both the accused persons. Accused Rahul got recovered the knife from the bank of Nala, which was used in commission of murder. Deepak got recovered three traffic challan receipts of vehicle No. DL1H5428 belonging to the deceased. He collected the postmortem report. Sent the exhibits to the FSL. And finally after completion of the investigation filed the chargesheet u/s. 394/397/302/34 IPC.
3. After compliance of Section 207 Code of Criminal Procedure the case was committed to the court of Sessions and therefore assigned to this court for trial in accordance with law.
4. Vide order dated 09.09.2011 my ld. Predecesor only framed charge u/s.302 IPC against both the accused persons to which they pleaded not guilty and claimed trial.
5. In order to prove its case prosecution examined as many as 21 witnesses.
PW1 Wct. Kiran Lal posted as constable in the PCR and recorded the information of incident received from mobile number 9910364985, which she filled in the PCR form number 1 Ex.PW1/A. STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 3 of page 26 4 PW2 Palakdhari and PW3 Gyan Chand have identified the dead body of the deceased.
PW4 HC Raj Kumar is the duty officer and recorded the FIR Ex.PW4/A. PW5 SI Manohar Lal is the draughtsman, who prepared the scaled site plan Ex.PW5/A. PW6 Vijay pal is the informant, who gave the information of finding of dead body from his mobile phone number 9910364985.
PW7 HC Pramod Kumar and PW8 HC Ravinder are formal witnesses.
PW9 Ct. Harish Kumar is the photographer of the crime team and proved the photographs taken at the spot as Ex.PW9/A1 to Ex.PW9/A44 and negatives of the same are Ex.PW9/B1 to Ex.PW9/B47.
PW10 SI Deepak Malik is Incharge Crime Team, and proved his crime team report Ex.PW10/A. PW11 Ct. Yogender Singh witness of the arrest of both the accused persons and recovery of knife and blood stains slips at the instance of accused persons.
PW12 Dr. Manoj Dingra, conducted the postmortem STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 4 of page 26 5 alongwith Dr. Deepak Sharma and proved the Postmortem Report Ex.PW12/A and subsequent opinion Ex.PW12/B and sketch of knife prepared by Dr. Deepak Sharma Ex.PW12/C. PW13 Ct. Hoshiyar Singh is the DD Writer and recorded DD No.75B Ex.PW13/A. PW14 Ct. Rajender took the exhibits to the FSL. PW15 ASI Som Prakash proved the Form No.1 Ex.PW1/A. PW16 Ct. Raj Kumar had participated in the investigations with SI Uma Dutt and Inspector Manoj Sharma on the date of incident and also with the witnesses of identification of dead body and handing over of the dead body to the relatives.
PW17 HC Moti Ram is the MHC(M) PW18 Ct. Vijay Vir is a formal witness.
PW19 HC Baljeet Singh is the witness of arrest of both the accused persons and recovery of knife and blood stained traffic challan receipts of vehicle number DL1LH5248.
PW20 SI Uma Dutt has also participated in the investigation on 13.03.2010, when the dead body was recovered and on 30.03.2010 both the accused persons were arrested. Recovery of STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 5 of page 26 6 knife and traffic challan receipts were made.
PW21 Inspector Manoj Sharma is the IO of the case.
6. Statement of both the accused persons were recorded u/s. 313 Cr.P.C. in which all the incriminating evidence were put to them and accused Rahul stated that he was doing a private job at Cremation Ground and he used to do the job of taking goods etc. for Pyre and also helping the priest in cremating the dead body. No recovery of knife or other articles have been made there at his instance. Similarly accused Deepak stated that he is innocent and he was working as labour in Udyog Nagar. He was lifted from Udyog Nagar, while he was unloading the plastic kattas from a truck and falsely implicated in this case and no recovery of knife was effected at his instance.
7. I have heard arguments on behalf of Shri A.K. Gupta, ld.
Addl. PP for the State and from Ms. Sadhna Bhatia, ld. AC for both the accused persons and also gone through the record very carefully.
8. It is contended by ld. Addl. PP for the State that case of the prosecution is based on circumstantial evidence, as there is no eyewitness. He further contended that, it is proved that blood stained STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 6 of page 26 7 traffic challan receipts of the vehicle of the deceased and blood stained knife were recovered at the instance of both the accused persons, which was used in the commission of crime. He further contended that, from the FSL Report, it is proved that blood was found on the knife and on the receipts, therefore, it is proved that both the accused persons have committed the crime.
9. On the other hand, Ms. Sadhna Bhatia , Ld. Amicus Curiae for the accused persons has contended that both the accused persons are innocent and falsely implicated in this case and no incriminating evidence has come on record against them in entire prosecution evidence and alleged recovery of traffic challan receipts at the instance of accused persons have been planted because it is highly unbelievable that after such a long gap of 17 days paper receipts would be found at the spot, even if it presumed that same has been thrown by the accused persons. Ld. Amicus Curiae further contended that, It is not proved that from the FSL that blood found on the knife was of deceased. Hence, alleged recovery is not connected with the commission of crime. Hence, both the accused persons are entitled to be acquitted.
STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 7 of page 26 8 FINDING
10. The accused persons have been charged for offence of committing murder of deceased Suraj Lal Yadav, which is punishable u/s. 302/34 IPC i.e. culpable homicide amounting to murder.
11. Section 299 IPC deals with culpable homicide. It reads as under:
299. Culpable Homicide : Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 299 has following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death; or
iii)with the knowledge that the doer is likely by such act to cause death.
Section 300 IPC deals with murder. It reads as under : STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 8 of page 26 9
300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 9 of page 26 10 knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. Putting it shortly, all acts of killing done:
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
12. The fact that deceased Suraj Bhan had died homicidal death is undisputed fact. Even otherwise, from the PM Report Ex.PW12/A it is proved that deceased had following external injuries:
1. Stab injury 2.5 X 0.5 cm obliquely placed acute below an obtuse upward single edge present on left lateral side of chest in mid axillary line placed 7 cm below axillary fold. 9 cm lateral to left nipple. On fine dissection of injury it is cutting underline muscle entering thorosic cavity piercing left lung STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 10 of page 26 11 superior interior surface piercing left side of heart. Depth of injury is 16 cm.
2. Abrasion 1X 0.5 cm soft red present over right side of forehead 3 cm above right eyebrow.
13. Further cause of death is due to shock and hemorrhage consequent upon stab injury. Hence, it is proved that deceased had died homicidal death. Now, prosecution has to prove that, accused persons had committed the murder of the deceased.
14. The case of the prosecution is that the deceased was stabbed by accused when deceased objected the effort of the accused to rob him. There is no eyewitness of the incident and based upon circumstantial evidence.
15. The conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence. Where a case rests squarely on 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. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 11 of page 26 12 doubt and have to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusions drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In Hanumant Govind Nargundkar and Anr. V State of Madhya Pradesh, AIR 1952 SC 343 it was observed as under :
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 should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
16. A reference may be made to a later decision in Sharad STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 12 of page 26 13 Birdhichand Sards V State of Maharashtra, AIR1984SC1622. While dealing with circumstantial evidence, it was 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 :
i) 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;
ii) 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;
iii)the circumstances should be of a conclusive nature and tendency;
iv)they should exclude every possible hypothesis except the one to be proved; and
v) 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.
STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 13 of page 26 14
17. The question needs consideration is, what does the expression 'proved beyond reasonable doubt' in case rest on circumstantial evidence signify. Does it mean that the prosecution is required to prove its case with hundred percent certainty? It was observed in Lal Singh V State of Gujarat, AIR 2001 SC 746 as under : "The learned Sr.Counsel Mr.Sushil Kumar submitted that prosecution has not proved beyond reasonable doubt all the links relied upon by it. In our view, to say that prosecution has to prove the case with a hundred percent certainty is myth.
18. The Evidence Act does not insist upon absolute proof for the simple reason that perfect proof in this imperfect world is seldom to be found. That is why under Section 3 of the Evidence Act, a fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This definition of 'proved' does not draw any distinction between circumstantial and other evidence. Thus, circumstantial evidence in order to furnish a basis for conviction requires a high degree of probability, that is, so sufficiently high that a prudent man STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 14 of page 26 15 considering all the facts, feels justified in holding that the accused has committed the crime.
19. Now, in the light of aforesaid judgments, I shall examine the present case. It is undisputed fact that on 13.03.2010 deceased's body found at the spot near Phatak No.4, Railway Line, Mangolpuri. PW4 had proved through his testimony that, on 13.03.2010 on receiving the information from DD No.75B, he went to the aforesaid spot and found one dead body of a person. And near the said dead body there was a bicycle and a pair of slipper was lying. He further testified that on checking, he found blood scattered near the spot on railway track and on the other side of railway track, PW20 SI Uma Dutt and PW16 Ct. Raj Kumar have also deposed the same facts. Even both the accused in their statements u/s. 313 Cr.P.C. also have not deposed the said fact. Hence, from the testimony of these witnesses, it is proved that deceased had died on 13.03.2010 due to stabbing. Further from the aforesaid testimony it is also evident that deceased might have stabbed. On the other side of railway track and from there he reached to the spot in injured condition, there he appear to be fell down due to excessive loss of blood. STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 15 of page 26 16 MOTIVE
20. Section 8 of the Evidence Act, 1872 says that facts which show a motive for any facts in issue or relevant facts, are relevant. Motive always locks up in the mind of the accused. Motive is the inducement for doing an act. People do not act wholly without motive. The evidence of motive becomes important once a crime is committed. The evidence of the existence of a motive is admissible. Motive is sometime difficult to unlock. The existence of motive assumes significance but the absence of motive does not necessarily discredit the prosecution case. The proof of motive is never an indispensable for conviction. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
21. In State of U.P. V Babu Ram, SC 2000 (11) AD 285, it was held by Hon'ble Supreme Court : No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 16 of page 26 17 possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered.
22. In case Bhagwan Dass V State (NCT of Delhi), AIR 2011 SC 1863, it is held in para 6 it is observed that "in cases of circumstantial evidence, motive is very important, unlike cases of direct evidence where it is not so important vide Wakkaar and Anr. V.State of Uttar Pradesh (2011)3 SCC 306 (para 14) : (2011 AIR SCW 1215 : AIR 2011 SC 518).
23. In this case, as per the prosecution story, the motive of the murder of deceased Suraj Lal Yadav was robbery, which is reflected from the confessional statements of the accused persons Deepak and Rahul i.e. Ex.PW19/E and Ex.PW19/F respectively, in which both the accused persons have confessed that on 13.03.2010 at about 9.00am, when they were present near Phatak No.4, they saw one person was coming with his cycle from Udyog Nagar side and at that time, accused Rahul stopped him and Rahul asked him STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 17 of page 26 18 to hand over money whatever he has, but that person started quarreling (hata pai) with him and said person tried to run away. Thereafter Rahul had stabbed him towards his left armpit due to which he fell down and thereafter, they have taken out money from his pocket alongwith some receipts. Since aforesaid part of the confessional statement of the accused persons that accused Rahul stab the deceased did not lead to discovery of any new facts, hence, same is hit by Section 25 & 26 of Indian Evidence Act and is not admissible in evidence, because as per Section 27 of Indian Evidence Act, only portion, which lead to recovery is admissible.
24. As per Section 25 and 26 of Indian Evidence Act, the confessional statement of accused either given to police officer or in police custody is not admissible in evidence. But Section 27 is the proviso of Section 25 and 26. As per Section 27, Indian Evidence Act, those portion of confessional statement given by the accused can be proved which led to discovery of any fact. The scope of the Section 27 was explained by the Privy Council in Pulukuri Kottaya V Emperor, AIR 1947 PC 67. Explaining the relationship between Section 26 and 27 and the ban imposed by Section 26, their Lordships said:--
STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 18 of page 26 19 Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.
25. Hence, the only portion of confessional statement of accused persons as admissible as they could get recover the knife and traffic challan receipts from the bank of ganda nala is admissible in evidence and rest of the part of their confessional statements is to be ignored.
26. Furth01er, the accused persons were chargesheeted for STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 19 of page 26 20 offence u/s. 394/397 IPC for commission of robbery, but my ld. Predecessor vide his order dated 09.09.2011 has held that, "from the entire material collected during investigation, the offence punishable u/s. 394/397 IPC is not made out against both the accused persons". Hence, my ld. Predecessor has rejected the prosecution case that, deceased was killed while committing robbery. The prosecution has not challenged the said order, hence, the order become final. Therefore, now the arguments of ld. Addl. PP for the State that, deceased was murdered by the accused persons for robbery is not sustainable. Hence, I held that, prosecution has failed to prove the motive of the murder of deceased.
ARREST & RECOVERY
27. As per prosecution case, both the accused persons have been arrested on 30.03.2011 and at their instance the blood stained knife and and blood stained traffic challan receipts of the vehicle number DL1LH5248 have been recovered, which connect the accused persons with the crime.
28. PW21 had deposed that on 30.03.2010 he alongwith SI Uma Dutt, HC Baljeet and Ct. Yogender went in search of the accused persons at the Nangloi jhuggi and there he received secret STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 20 of page 26 21 information that the persons wanted in this case are present near CRP Park near NDPL office and, therefore, he asked public persons to join the investigations but they ran away showing their inability to join the proceedings on one pretext or the other. Thereafter, he went to CRP Park and there at the instance of secret informer, two persons were apprehended who were sitting in the park by HC Baljeet and Ct. Virender, who disclosed their names as Deepak @ Kalu and Deepak @ Deepu i.e. the accused persons present in the court and accordingly he arrested both the accused persons and both the accused persons have made their confessional statements. Rahul @ Kalu made his confessional statement Ex.PW19/F and that of Deepak @ Deepu as Ex.PW19/E respectively, in which accused persons have confessed that they thrown the knife, accused Deepak used in the stabbing the deceased traffic challan receipts which accused Deepak had taken out from the bag snatched from the deceased near railway line near the bank of ganda nala. The similar facts have been deposed by PW20 SI Uma Dutt and PW HC Bljeet and Ct. Vijender in their testimonies.
29. I am agree with the contention of the ld. Amicus Curiae that, the arrest of the accused persons at the spot as alleged by STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 21 of page 26 22 these prosecution witnesses and alleged recovery are doubtful because no public persons have been joined in the investigation either at the time of arrest of the accused persons or at the time of recovery, despite the fact that the place of arrest was a public place i.e. Park. IO has failed to explain why he has not give any notice to the public persons, who refused to join the investigations. Further, IO has not placed on record any departure DD regarding police party leaving the PS nor any DD regarding their arrival at the PS after arrest of the accused persons and recovery of knife, traffic challan receipts. PW21 had admitted in the cross examination, he made departure entry and place same on file. But on perusal of the file I did not find any departure or arrival DD of 30.03.2010. I fail to understand that what prevent the IO to place the DD of arrival and departure in official file, which could lend credibility to their testimony particularly when no public witness is joined in the investigation. This is the exact object of recording of arrival and departure DD by police officials to prevent manipulation by the IO. It is known fact that IO/police official is interested in success of his case and it cannot be ruled out that due to said reason some police official manipulated the documents.
STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 22 of page 26 23
30. Further, I find that there are number of contradiction in the statement of PW11, PW19, PW20 and PW21, who are the witness of arrest of both the accused persons and recovery of knife and challan receipts. PW20 SI Uma Dutt stated that they had left the PS on 10/10.15pm, whereas PW21 Inspector Manoj Sharma that they left the PS at 10.30am, whereas PW11 Ct. Yogender Singh and PW19 HC Baljeet says that they left the PS at about 10/11am. Further PW9 stated distance from place of receiving the information to the place of arrest is 200 to 300 sq. yds. whereas PW20 stated that it is 300 meters and PW21 stated it is 400 meters. Further PW19 stated that secret informer pointed out towards accused persons from a distance of 40 meters. Whereas PW20 stated that secret informer pointed out from a distance of 300 meters, but PW21 stated that secret informer pointed from 100 meters. Similarly there are contradictions in the testimony of PW11 , PW19, PW20 and PW21 regarding the recovery. PW11 stated of recovery of knife at a distance 200/250 sq. yds. from the place of arrest of accused persons, whereas PW19 stated it is 400500 sq. meters and PW20 stated 300 to 400 meters. Further, PW11 stated that, recovery of knife was done while sitting near CRP Park. PW19 stated, it was STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 23 of page 26 24 done at the spot, while sitting on the ground. PW20 stated it was done on the side near the railway track. Hence, there are many contradictions regarding the arrest and recovery of knife and traffic challan receipts, which created doubt that whether the accused persons are arrested at the spot or at the time as alleged or recovery made at the time as police alleged.
31. Considering the contradictions in the statement of PWs as mentioned above, it cannot be ruled out that knife and traffic challan receipts have been planted upon the accused persons to strengthen the case against them.
32. Even otherwise, if I ignore the said contradictions, I found that prosecution has failed to connect the recovery of knife with the commission of crime, though as per the FSL Reports Ex.PW21/F3 & Ex.PW21/F4, on the knife Ex.P1 human blood was found but no group of blood has been specified. Hence, it cannot be said with certainty that knife was having blood of deceased Suraj Lal Yadav. Further, in the subsequent opinion of PW12 Dr. Manoj Dhingra has only opined that injury no.1 could be caused by this weapon or any other weapon or any other such weapon. Knife which is recovered is general kind of knife, easily available in market. STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 24 of page 26 25 Hence, it cannot be said be said with certainty that it is the same knife for which deceased was stabbed.
33. Even otherwise, if if I presume that recovery of knife has been effected at the instance accused persons, same shall not be sufficient to convict the accused persons, as prosecution has failed to connect the recovery with the crime. In Kallo Passi Vs State 2009 [2] JCC 1206 Hon'ble Mr. Pradeep Nandrajog, Justice cited number of judgments passed by Hon'ble Supreme Court held that, "Mere recovery of blood stained clothes and dagger at the instance of accused without connecting the same with the other circumstances cannot take the place of proof".
34. Further as far as recovery of blood stained traffic challan receipts Ex.P2 (collectively) is concerned, same are shown on 30.03.2013 i.e. after 17 days of incident from an open place. It is very unlikely that there receipt of paper thrown on the slope of railway line will be found at the same place after 17 days of incident, the breeze would have taken it somewhere else. In my view, considering the so many contradictions in the statement of PWs, it cannot be ruled out that, receipts might have been planted on the accused persons which may have been found in possession of the STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 25 of page 26 26 deceased, when his dead body was recovered or may have been obtained later on by the IO. Hence, in these circumstances, it would not be safe to convict the accused persons merely on the basis of sole incriminating circumstances i.e. recovery blood stained traffic challan receipts. There is no other incriminating circumstances against the accused persons which connect the accused persons with the crime. Hence, I held that prosecution has failed to prove complete chain of incriminating evidence against the accused persons. In these circumstances mentioned above, it cannot be ruled out that, any other person than accused has committed the murder of deceased Suraj. Hence, I give benefit of doubt to accused persons and acquit them from all the charges.
35. In view of aforesaid facts and circumstances, both the accused persons Rahul @ Kalu & Deepak @ Deepu stand acquitted from all the charges. Both the accused persons are in JC, they be released from JC, if not required in any other case. File be consigned to record room.
Announced in the open court (SANJEEV KUMAR) On 28.03.2013 ASJ01: NORTH: ROHINI: DELHI STATE VS RAHUL & ANR FIR NO.139/10/U/S. 394/397/302/34 IPC/PSMANGOLPURI page 26 of page 26