Delhi District Court
State vs . Sushil Bara Etc. on 10 October, 2018
1
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
UID No. 57324/2016
FIR No. 212/12
U/S 302/201/120B/34 IPC
P S Nihal Vihar
State Vs. Sushil Bara etc.
J U D G M E N T
1 Sl. No. of the case 57324/2016
2 Date of Committal to Sessions 11.01.2013
3 Date of Transfer 13.02.2014
4 Name of the complainant Smt. Laxmi
5 Date of commission of offence 30.09.2012
6 Name and Parentage of 1. Sushil Bara, S/o Sh. Clement
accused persons @ Klement Bara, R/o Village
Harra Toli, PO & PS Jari, Distt.
Gumla, Jharkhand.
2. Bimal Kujur, S/o Sh. Emil
Kujur, R/o Village Ghoraty
Hasag, PO Katkahi, PS Chain
Pur, Distrt. Gumla, Jharkhand.
3. Sangeeta Bara, W/o Late Sh.
Manoj Bara, R/o RZF355, Nihal
Vihar, Delhi.
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2
7 Offence complained of Under Section 302/34 IPC
8 Offence charged Under Section 302/201/120B/34
IPC
9 Plea of guilt Pleaded not guilty and claimed
trial
10 Final order Acquitted
11 Date on which order reserved 10.10.2018
12 Date on which order 10.10.2018
announced
1.On 30.09.2012, at about 10.45 pm, a call was received in Police Station Nihal Vihar from Police Control Room (PCR) regarding quarrel at RZ355, Nihal Vihar, Delhi and a Daily Diary (DD No. 58B) was recorded and HC Sansar Pal was sent to the spot to attend the call. On reaching the spot, HC Sansar Pal has reported that a dead body of Manoj Bara is lying at the spot and he has been murdered at the spot. Thereafter, the further investigation was marked to Insp. Parminder Singh who reached at the spot. Insp. Parminder Singh inspected the scene of crime and found that the victim has been murdered. Thereafter, the SC No. 57324/2016 State Vs Sushil Bara etc. 2 of 51 3 statement of PW 4 Ms. Laxmi was recorded and a rukka was sent for registration of the FIR by Insp. Parminder Singh. The present FIR bearing no. 212/12 dated 01.10.2012 for commission of the offence under section 302/34 IPC was registered in Police Station Nihal Vihar on the basis of the rukka sent by Insp. Parminder Singh.
2. The complainant PW 4 Laxmi in her statement to the police Ex.PW 4/A, has alleged that she was residing with her brother inlaw (jeeja) Manoj Bara and sister Sangeeta since last about two years and doing the household work. PW 4 alleged that on the date of incident at about 08.00 pm, two boys aged about 20 to 25 years, knocked the door and told her that they want to meet Manoj Bara. She informed Sh. Manoj Bara that somebody has come to see him who after seeing them, allowed them to enter in the house. Thereafter, they both went upstairs where Manoj Bara was staying. The complainant served the water and seen both the boys talking with Manoj Bara. The complainant further alleged that at about 08.3008.45 pm, she heard the cry SC No. 57324/2016 State Vs Sushil Bara etc. 3 of 51 4 of her Jeeja Sh. Manoj Bara and went upstairs, but door was closed and she could not go inside. Thereafter, she came downstairs and shouted for help but nobody came forward. Then she borrowed the mobile phone of a neighbour and call the police at 100 number. The police did not reach at the spot for long time. Therefore, she again borrowed the phone and call the police. One police official went upstairs by climbing the wall and opened the latches. Thereafter, she alongwith police official visited the room and found that the dead body of her jeeja Manoj Bara is lying in the pool of blood and he seems to have died as there was no movement.
3. After registration of the FIR, the investigation was conducted by the police. During the investigation, on 02.10.2012, accused Sangeeta Bara was arrested. It is further submitted that on 02.10.2012, accused Sangeeta Bara has made a disclosure statement at her residence that she hatched criminal conspiracy with two other accused persons namely Sushil Bara and Bimal Kujur to kill her husband. After her disclosure statement, she SC No. 57324/2016 State Vs Sushil Bara etc. 4 of 51 5 was arrested and at her instance accused Sushil Bara was arrested. Therefore, at the instance of Sushil Bara, accused Bimal Kujur was arrested. Sushil Bara had made a disclosure statement and on the basis of disclosure statement Bhujali which was used to commit the offence was recovered. On the disclosure statement of Bimal Kujur the blood stained pantshirt was recovered, which he admitted to be wearing at the time of commission of the offence. The charge sheet further indicates that as per the post mortem report, the cause of death was hemorrhage shock due to injury to the neck by the sharp weapon. Injury no. 1 and no. 2 are sufficient to cause death. All injuries are ante mortem in nature and caused by sharp weapon. The alleged weapon of offence also shown to the doctor who gave his opinion that injury found on the dead body of Manoj Bara may be possible with such weapon. All Exhibit were sent to FSL and FSL report was also filed before the Court.
4. The police after completion of the investigation, filed the charge sheet for commission of the offence punishable under section SC No. 57324/2016 State Vs Sushil Bara etc. 5 of 51 6 302/201/120B/34 IPC against all three accused persons namely Sangeeta Bara, Sushil Bara and Bimal Kujur.
5. After completion of the necessary formalities under section 207 Cr.PC, the case was committed to the Sessions court for trial. On 24.05.2013, the charge for commission of the offence punishable under section 120B IPC was framed against all three accused persons and the charge for commission of the offence under section 302/201/34 IPC was framed upon the accused Sushil Bara and Bimal Kujur to which they pleaded not guilty. The prosecution has alleged that accused Sangeeta Bara wanted to eliminate her husband, because he used to beat her. Therefore, she hatched a conspiracy with accused Sushil Bara and Bimal Kujur, who committed the murder of Manoj Bara.
6. The prosecution to prove his case has cited 35 witnesses. All the 35 witnesses are examined by the prosecution in support if its case.
7. The statement of the accused persons under section 313 Cr.PC was also recorded wherein they have denied all the SC No. 57324/2016 State Vs Sushil Bara etc. 6 of 51 7 incriminating evidence. It is stated by the accused persons that they are falsely implicated in the present case. The accused persons have not led any evidence in support of their defence.
8. I have carefully perused the material on record and heard the submissions of Sh. Pravesh Ranga, Ld. Addl. PP for the State, Sh. Mahesh Patel, Ld. Counsel for accused Sangeeta Bara and Sh. J.S. Kushwaha, Ld. Counsel for accused Sushil Bara and Bimal Kujur.
9. Written submissions on behalf of accused persons are also filed.
10. It is submitted by Ld. Addl. PP for the State that the prosecution in the present case has examined 35 witnesses who supported the story of the prosecution. It is submitted that PW 4 Smt. Laxmi had lodged the complaint and she was the witness relating to the last seen theory of the prosecution but she could not identify the accused persons. It is stated that even though, PW 4 Smt. Laxmi could not identify the accused persons but she has supported the story of the prosecution on other SC No. 57324/2016 State Vs Sushil Bara etc. 7 of 51 8 accounts. That the identity of the accused persons and their involvement in the commission of the charged offence are proved by other circumstantial evidence. That both the accused persons i.e. accused Sushil Bara and Bimal Kujur had received the injuries while fleeing from the spot and the doctors who treated them have correctly identified and proved the injuries upon the persons of both the accused persons.
11. It is submitted that the prosecution is able to prove the chain of circumstances to bring home the guilt of the accused persons. Therefore, it is prayed that all three accused persons may kindly be convicted for commission of the alleged offence.
12. On the other hand, it is submitted by Sh. Mahesh Patel, Ld. Counsel for accused Sangeeta Bara that the prosecution could not prove on record any incriminating circumstances to connect the accused with commission of the alleged offence. It is stated that there is no direct evidence to prove the involvement of accused Sangeeta Bara in the alleged offence. That the disclosure statement of accused Sangeeta Bara is not admissible SC No. 57324/2016 State Vs Sushil Bara etc. 8 of 51 9 and hit by section 25 of the Indian Evidence Act. That neither the circumstantial evidence nor the direct evidence is on the record to prove the involvement of the accused in commission of the alleged offence. It is prayed that accused Sangeeta Bara may kindly be acquitted for commission of the alleged offence.
13. Sh. J.S. Kushwaha, Ld. Counsel for accused Sushil Bara and Bimal Kujur has submitted that PW 4 Smt. Laxmi could not identify the accused persons during her deposition before the court. That the last seen theory of the prosecution is demolished after failure of the PW 4 Smt. Laxmi to identify the accused persons. It is stated that both the accused persons were arrested on the basis of disclosure statement of accused Sangeeta Bara and there is no other evidence produced on record against them. It is submitted that the recovery is planted upon the accused person to solve the case. That the planted recovery is itself proved by the contradictions emerged in the deposition of the witnesses. It is prayed that both the accused persons may kindly be acquitted.
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14. The prosecution has examined following witnesses: PW 1 R.K. Singh Nodal officer, Bharti Airtel Limited. PW 2 ASI Gian Bahadur Incharge of PCR.
PW 3 SI Jai Prakash who was performing his duty as D.O. PW 4 Smt. Laxmi who lodged the complaint.
PW 6 Insp. Mahesh KumarDraftsman.
PW 7 Dr. D.C. Kataria who examined the accused Sushil Bara. PW 8 Dr. S.K. Vishwas who examined the accused Bimal Kujur.
PW 9 Satya Narayan who has given mobile to complainant Laxmi to made a PCR call, PW 10 Ct. Sonu who was posted at Control Room, PCR. PW 11 ASI Ajit Singh Incharge of Mobile Crime Team. PW 12 Dr. Muneesh, Junior Specialist SJM Hospital. PW 13 Gune Ram who has also given his mobile to complainant to made a PCR call.
PW 14 ASI Sensar Pal after receiving DD Number he was first police official from PS Nihal Vihar Delhi who went at the SC No. 57324/2016 State Vs Sushil Bara etc. 10 of 51 11 spot.
PW 15 ASI Baljit Singh who was photographer. PW 16 SI Dharambir who was finger print expert. PW 17 Heera Singh who was neighbour.
PW 18 Ct. Bijender who received the information of murder at the police station.
PW 19 ASI Naresh Kumar PW 20 Dalbir Kaur who was also neighbour.
PW 21 HC Gajraj who received the missing report of Sangeeta Bara.
PW 22 Santosh Bara, who identified the body of deceased. PW 23 HC Ram Mahesh who taken the pullanda to FSL. PW 24 Ct. Arvind Kumar who is witness went to the spot alongwith IO.
PW 25 Lady Ct. Pooja who joined the investigation with the IO and went to Rajokari.
PW 26 Dr. M.Dass CMO SJM Hospital.
PW 27 Ct. Shri Bhagwan who went to spot alongwith HC SC No. 57324/2016 State Vs Sushil Bara etc. 11 of 51 12 Sensar Pal to attend the DD entry.
PW 28 Ct. Sukhpal who deposit the pullanda exhibits in the FSL.
PW 29 HC Ram Mahesh who was working as MHC(M) at relevant time.
PW 30 ASI Hawa Singh who joined the investigation at the time of arrest of accused persons and at the time of alleged recovery.
PW 31 Ms. Ekta Gauba, Ld. MM Delhi who conducted TIP proceedings of accused Bimal and Sushil Bara. PW 32 Ct. Vijay Singh who also joined the investigation at initial stage with the IO.
PW 33 Insp. C.L. Meena who conduct the investigation at the spot and prepared seizure memo at the spot.
PW 34 Sh. Asim Shashikant Horo Jharkhand who brought the CAF Record of Mobile No. 9431573112.
PW 35 Insp. Pramendra Singh IO of the case.
15. In the present case, the testimony of PW 4 Smt. Laxmi is of the SC No. 57324/2016 State Vs Sushil Bara etc. 12 of 51 13 utmost importance. PW 4 Smt. Laxmi is the person who had last seen the accused persons entering in the room of the deceased. PW 4 deposed that in the year 2012, she was working as maid servant in the house of deceased Manoj and Sangeeta and she used to address them as Jeeja and Didi. PW 4 deposed that on the date of occurrence, accused Sangeeta was away to her native place in West Bengal and she alongwith deceased Manoj and his two kids Nancy and Max were present in the house. PW 4 deposed that at about 08.00 pm, she was in a room at the ground floor whereas deceased Manoj alongwith his kids was in a room on the first floor. Someone knocked the door and she saw them after opening the wooden door through one net door. She informed the deceased Manoj about those two persons. Deceased Manoj saw them from the first floor and instructed her to open the door and let them come to the first floor as they were his friends. Thereafter, she served the water and both kids were brought on the ground floor by her. PW 4 further deposed that Manoj instructed the kids to SC No. 57324/2016 State Vs Sushil Bara etc. 13 of 51 14 attend a birthday party in neighbourhood. PW 4 deposed that those two persons after sitting some time with Manoj went outside. After some time, two other persons came and knocked the door and she informed Manoj and after seeing them from the first floor, he instructed her to open the door and let them come upstairs. She served water to them also and came down. Thereafter, she went to attend the birthday party with the kids. PW 4 further deposed that when she was in a street and sitting there with other ladies of the locality, she heard noise of the quarrel from the house. She returned back and noticed that the gate of stairs to the first floor was closed and on the instructions of neighbours, she called at 100 number. After about 11 ½ hours police reached but the doors was closed. One of the police official went to adjoining house and from there entered the first floor and opened the door. It was reported that Manoj is no more. PW 4 deposed that she cannot identify those persons who came to the house of deceased Manoj to meet him and to whom she served the SC No. 57324/2016 State Vs Sushil Bara etc. 14 of 51 15 water.
PW 4 stated that the accused persons were shown to her by the IO in the police station. PW 4 was cross examined by Ld. Addl. PP for the State as she has resiled from her previous statement. During cross examination, PW 4 has denied that the accused persons present in the court are the persons whom she served the water. It is admitted that deceased Manoj and his wife Sanjeeta @ Sangeeta used to quarrel with each other. It is admitted that Sangeeta left her matrimonial house in February, 2012 for about one/one and half months and when she come back she did not quarrel with deceased Manoj. It is specifically denied that both the accused present in the court visited the house of deceased Manoj prior to 30.09.2012. PW 4 has denied making any statement to the police on 01.10.2012 and she stated that her thump impression was obtained by the police on blank papers. It is denied that she had identified both the accused persons on 06.10.2012. It is voluntarily stated that both the accused persons were shown SC No. 57324/2016 State Vs Sushil Bara etc. 15 of 51 16 to her by the IO in the court itself. It is stated that she told the Ld. Metropolitan Magistrate about the name of two boys at the instance of the IO. PW 4 admitted that she did not disclose to Ld. Metropolitan Magistrate regarding the threats given to her by the police officers.
During cross examination, PW 4 sated that she called the police and told them that 34 persons have come there and they were fighting.
16. The present case of the prosecution is based upon circumstantial evidence. There is no direct evidence or the witnesses to prove commission of the charged offence. The law regarding circumstantial evidence is well settled. The Hon'ble Apex Court and the High Court time and again have stressed that a person may be held guilty on the basis of the circumstantial evidence only when the chain of circumstances is complete and unbroken.
17. The Hon'ble Supreme Court in judgment titled as "Shantabai & Ors. Vs. State of Maharashtra 2008 (2) JCC 1080 (2008) 16 SC No. 57324/2016 State Vs Sushil Bara etc. 16 of 51 17 SCC 354" held that:
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 pointed 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 the 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."
18. The Hon'ble Supreme Court in judgment titled as "Hanumant Govind Nargundhar Vs. State of Madhya Pradesh AIR 1952 SC 343" held that:
10. 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 in the first instance be fully established, and all the facts so established should be consistent only with SC No. 57324/2016 State Vs Sushil Bara etc. 17 of 51 18 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 evidenced 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.
19. The Hon'ble Supreme Court in judgment titled as "C. Chenga Reddy Vs. State of Andhra Pradesh 1996 SCC (Cri) 1205"
held that:
"21. In 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."
20. In the present case, all three accused persons are facing the trial for hatching a conspiracy to commit the murder of Manoj SC No. 57324/2016 State Vs Sushil Bara etc. 18 of 51 19 Bara and that the same act was done in pursuance to the agreement among all three accused persons.
21. That the accused Sushil Bara and Bimal Kujur are facing the charge that on 30.09.2012, in furtherance of their common intention, they have committed the murder and caused death of Manoj Bara by stabbing and sliding his throat. It is also alleged that after committing the murder of Manoj Bara, they have caused certain evidence of the said offence to disappear i.e. by destroying the blood stained clothes with intention of screening from the legal punishment.
22. The present case is based upon the circumstantial evidence and last seen theory. The prosecution has alleged the following facts and circumstances of the case.
23. That accused Sangeeta Bara was having the estranged relationship with her husband i.e. deceased Manoj Bara as he used to beat her and she came to know that he wanted to eliminate her. Therefore, accused Sangeeta Bara contacted her distant relative Sushil Bara who agreed to help her to eliminate SC No. 57324/2016 State Vs Sushil Bara etc. 19 of 51 20 deceased Manoj Bara in consideration of an amount of Rs. 1,50,000/. Accused Sushil Bara also roped in, his friend Bimal Kujur in commission of the murder of Manoj Bara. Accused Sangeeta Bara left the company of Manoj Bara and went to her native place to avoid suspicion. Thereafter, in her absence, accused Sushil Bara and Bimal Kujur reached in the house of Manoj Bara on 30.09.2012. Both the accused persons were seen at the house of Manoj Bara by PW 4 complainant Smt. Laxmi. Thereafter, both the accused persons committed the murder of Manoj Bara by using a Bhujali or Khukri type weapon. Both the accused persons ran away after committing the murder from the roof of the neighbours and while running, they have received injury and got treated themselves from two separate doctors. The police on the basis of the disclosure statement arrested accused Sangeeta Bara who confessed regarding the commission of the offence. The Prosecution has alleged that accused Sushil Bara was arrested at the instance of accused Sangeeta Bara and later on, accused Bimal Kujur was arrested SC No. 57324/2016 State Vs Sushil Bara etc. 20 of 51 21 at the instance of accused Sushil Bara. Both the accused persons Sushil Bara and Bimal Kujur also made the disclosure statement and in pursuance of their disclosure statement, the clothes worn by them at the time of commission of offence and the weapon of offence was also got recovered. The accused persons have refused to participate in the TIP proceedings.
24. Motive In the present case the prosecution has alleged that accused Sangeeta Bara wanted to eliminate her husband Manoj Bara as he used to beat her and was having relations with other women. The accused Sangeeta Bara wanted to eliminate Manoj Bara as he was planning to kill her. Therefore, she entered into a conspiracy with accused Sushil Bara and Bimal Kujur to kill her husband.
25. The prosecution to prove the motive of the murder has relied upon the confessional statement of accused Sangeeta Bara recorded by the Investigating Officer. Section 25 of the Indian Evidence Act lays down that no confession made to a police SC No. 57324/2016 State Vs Sushil Bara etc. 21 of 51 22 officer shall be proved against a person accused of any offence. The confessional statement of accused Sangeeta Bara is hit by Section 25 of the Indian Evidence Act and not admissible in the eyes of law.
26. The prosecution has also relied upon the deposition of PW 4 Laxmi to prove the motive. PW 4 Laxmi in her examination in chief has nowhere deposed regarding the estranged relationship of accused Sangeeta Bara and deceased Manoj Bara. The PW 4 Smt. Laxmi rather during the cross examination has admitted that Sangeeta Bara has left her matrimonial home in the month of February, 2012 for about one and half month and after return, she did not quarrel with deceased Manoj Bara. It is clear that the deposition of PW 4 Smt. Laxmi is not helpful to the prosecution to prove the motive of the murder.
27. The prosecution has also relied upon the deposition of PW 21 HC Gajraj. PW 21 HC Gajraj has deposed that on 26.02.2012, deceased Manoj Bara moved an application regarding missing of his wife Sangeeta Bara for which a DD entry no. 35A was SC No. 57324/2016 State Vs Sushil Bara etc. 22 of 51 23 made. PW 21 further deposed that on 02.04.2012, deceased Manoj Bara alongwith accused Sangeeta Bara came to the police station and informed about the return of his wife. PW 21 has deposed that the maid servant Smt. Laxmi told about the estranged relationship of accused Sangeeta Bara and deceased Manoj Bara but the deposition of PW 21 in this regard cannot be relied upon as the same is hearsay as the PW 4 Smt. Laxmi in her deposition has not supported this version. Even this fact was not put to the PW 4 during her examination in chief. The deposition of PW 21 HC Gajraj is contradicted with the deposition of PW 4 Smt. Laxmi.
28. PW 35 Insp. Pramendra Singh IO in his cross examination has admitted that PW 4 Smt. Laxmi has not disclosed about the estranged relationship between accused Sangeeta Bara and deceased Manoj Bara. It is clear that the deposition of PW 35 Insp. Pramendra Singh is not helpful to support the story of the prosecution regarding the motive.
29. The PW 35 Investigating Officer has admitted that he did not SC No. 57324/2016 State Vs Sushil Bara etc. 23 of 51 24 make inquiry or recorded the statement of the children of deceased during the investigation. It is also admitted by PW 35 Insp. Pramendra Singh that family members of deceased including his parents, brothers and neighbours did not disclose him about the involvement of Sangeeta Bara in the offence. It is also admitted that he did not make inquiry/investigation from the public persons who joined the prayer (Kirya) after the death of deceased with regard to the involvement of accused Sangeeta Bara. It is clear that the deposition of PW 35 is not helpful to the prosecution to prove the motive of the murder.
30. The deposition of PW 21 HC Gajraj and PW 35 Insp. Pramendra Singh were based on the suspicion. PW 4 Smt. Laxmi did not support the story of the prosecution regarding the motive of the murder and both the child of the deceased, who were the best witnesses or the parents, brother or neighbours are not examined by the prosecution to prove the estranged relationship of the deceased and accused Sangeeta Bara. In view of the above, I am of the considered opinion that the SC No. 57324/2016 State Vs Sushil Bara etc. 24 of 51 25 prosecution has fails to prove the circumstantial evidence regarding the motive of the murder.
31. Preparation and conspiracy The prosecution has alleged that the accused Sangeeta Bara used to talk with other accused persons on telephone and thereafter, as a part of conspiracy she went to her native place and assured the accused person Sushil Bara and Bimal Kujur to give money after commission of the offence.
32. The prosecution to prove the conspiracy has relied upon the call detail records of the accused Sangeeta Bara and other co accused persons. The prosecution in this regard has examined PW 1 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Limited to prove the mobile phone 9717026570 in the name of Sushil Bara. The CDRs of the said mobile phone for the period from 01.04.2012 to 01.10.2012 are proved as Ex.PW 1/A. The prosecution has also examined another witness i.e. PW 34 Sh. Asim Shashikant who produced the CAF record pertaining to mobile phone no. 9431573112 in the name of Smt. Krishnawati SC No. 57324/2016 State Vs Sushil Bara etc. 25 of 51 26 Nagesia. The mobile phone no. 8986654639 was proved to be allotted to Smt. Meri Urain.
33. The PW 1 examined by the prosecution has proved the mobile no. 9717026570 owned by one accused Sushil Bara. However, the prosecution has fails to connect the mobile phone bearing no. 9431573112 and 8986654639 disclosed by PW 34. The PW 34 has deposed that both the numbers above does not belong to any of the accused persons. The owner of these mobile phones are not examined by the prosecution to support its case that the same were being used by the accused Sangeeta Bara and any other person. There is no evidence produced on record by the prosecution that the mobile no. 9431573112 and 8986654639 disclosed by PW 34 were either owned by accused Sangeeta Bara or were being used by her. The owner of these mobile phone numbers are not examined by the prosecution to prove the story of the prosecution in this regard.
34. The disclosure statement of all three accused persons recorded by the police in this regard is being hit under section 25 of the SC No. 57324/2016 State Vs Sushil Bara etc. 26 of 51 27 Indian Evidence Act and not admissible. After deletion of the disclosure statement of the accused persons being hit under section 25 of Indian Evidence Act, there is no other evidence to prove any connection between the accused persons or any meeting of mind for preparation or hatching of the conspiracy for commission of the offence.
35. The CDRs placed on record by the prosecution would not be considered incriminating unless such circumstances are proved on record which shows the involvement of the accused for commission of the offence.
36. In view of the above, I am of the considered opinion that the prosecution has fails to prove hatching of the conspiracy by accused Sangeeta Bara with coaccused persons Sushil Bara and Bimal Kujur.
37. Last Seen Theory The prosecution has also relied upon the theory of the last seen in the present case. The prosecution has alleged that accused Sushil Bara and Bimal Kujur visited the house of deceased SC No. 57324/2016 State Vs Sushil Bara etc. 27 of 51 28 Manoj Bara and were seen by PW 4 Smt. Laxmi who served water to them and soon after their arrival deceased Manoj Bara was found murdered in his room.
38. PW 4 Smt. Laxmi during her examination in chief deposed that she cannot identify those persons who came to the house of Manoj Bara to meet him and to whom she served the water. PW 4 was cross examined by Ld. Addl. PP for the State on this account. The Ld. Addl. PP for the State specifically pointed out towards the accused persons Sushil Bara and Bimal Kujur and asked that the accused persons present in the court are the same two boys whom the water was served by her but PW 4 has clearly refused to identify the accused persons present in the court. PW 4 has stated that she did not make any statement to the police on 01.10.2012 and her thumb impressions were obtained by the police officials on blank papers.
39. In the present case, PW 4 Smt. Laxmi in her statement u/s 164 Cr.PC recorded before the Ld. Metropolitan Magistrate has supported the story of the prosecution regarding the SC No. 57324/2016 State Vs Sushil Bara etc. 28 of 51 29 circumstances/last seen theory. PW 4 in her examination in chief has stated that she never identified both the accused persons at any point of time. PW 4 has specifically deposed that she had never seen both the accused persons at the house of deceased Manoj Bara. The witnesses in her statement u/s 164 Cr.PC has supported the story of the prosecution but before the court has turned a volt face regarding last seen theory. The PW 4 has specifically denied that she had seen both the accused persons Sushil Bara and Bimal Kujur at the house of deceased Manoj Bara. The PW 4 has also created a doubt upon her statement recorded u/s 164 Cr.PC by leveling the allegation that she had made her statement being pressurized by the police. Even though, the Ld. Magistrate has specifically recorded that the witness has deposed without any fear, force or coercion. However, there seems to be some force in the deposition of PW 4 Laxmi regarding her deposition under the influence of police, because she has deposed that she was relieved by the police after two days of the incident. This fact indicates that the PW 4 SC No. 57324/2016 State Vs Sushil Bara etc. 29 of 51 30 Laxmi was under the influence of the police, at the time of recording of her statement u/s 164 of Cr.PC.
40. In view of the above, I am of the considered opinion that the prosecution has fails to prove the circumstantial evidence regarding the last seen of accused Sushil Bara and Bimal Kujur in the house of deceased Manoj Bara by PW 4 soon before his murder.
41.Confessional statement of accused Sangeeta Bara The prosecution has relied upon the disclosure statement of accused Sangeeta Bara Ex.PW 25/A. The disclosure statement of an accused is being hit by Section 25 of Indian Evidence Act and not admissible in the eyes of law. Section 27 of Indian Evidence Act has created an exception to section 25 of Indian Evidence Act. The prosecution has claimed that coaccused Sushil Bara was arrested on the basis of the disclosure statement Ex.PW 25/A therefore, by virtue of Section 27 of Indian Evidence Act, her part disclosure statement regarding identification and arrest of coaccused Sushil Bara is admissible SC No. 57324/2016 State Vs Sushil Bara etc. 30 of 51 31 in the eyes of law.
42. On the issue of the scope of Section 27 of the Indian Evidence Act, I have relied upon the following judgments: It was observed by Hon'ble High Court of Delhi in the matter of Shakuntala VS State, 2011 (2) JCC (Delhi) 1001:
2011(4)AD(Delhi) that:
"Conditions and requirements of Section 27 of Evidence Act (1) The fact of which evidence is sought to be given must be relevant to be given must be relevant to the issue. It must be borne in mind that the provisions has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to the relevancy of the other evidence connecting it with the crime in order to make the fact discovered admissible - (2) The fact must have been discovered - (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act - (4) The person giving the information must be accused of any offence - (5) He must be in the custody of a police officer - (6)The discovery of a fact in consequence of information received from an accused in SC No. 57324/2016 State Vs Sushil Bara etc. 31 of 51 32 custody must be deposed to - (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is in admissible".
43. It was observed by Hon'ble High Supreme Court of India in the matter of Debapriya Pal Vs State of West Bengal 2017(@) JCC 986 that:
"No confession made by an accused to a police officer can be admitted in evidence against him - An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement.
Blood stained clothes reliance on these blood stained clothes for the culpability of the appellant - as per the prosecution the blood group on these blood stained clothes matched with the blood on the bed sheet on which the body of one of the deceased person is found - though blood of both the deceased persons was drawn and sent for examination, it is not known as to what was the report thereupon and what was the blood group of the deceased persons. No such blood report has been SC No. 57324/2016 State Vs Sushil Bara etc. 32 of 51 33 produced so much so, blood group of the accused persons was also not ascertained Mere matching of the blood group on the blood stained clothes, which was even on the bed sheet, would not lead to the conclusion that it the appellant who had committed the crime."
44. It was further observed by the Hon'ble Supreme Court of India in case Mangu VS Dharmendra and another 2016(@)JCC 821 that "The trial court by its judgment and order dated 25th January, 2006, convicted the accused for both the offences charged and sentenced him to imprisonment for life.
The convictions were based on the evidences of the eye witnesses and the recovery of the weapons used which were further corroborated by the admissions made to the police officers, the motive being established and also non explanation by the accused of the facts within his knowledge as mandated under section 106 of the Indian Evidence Act, 1872. The accused challenged the conviction order before the High Court and the High Court by impugned judgment and order allowed the appeal on the ground that the prosecution failed to bring home the guilt of the accused beyond reasonable doubt. The acquittal was based SC No. 57324/2016 State Vs Sushil Bara etc. 33 of 51 34 on the ground that both the FIRs are ante timed and eye witnesses who were relied upon by the trial court were interested And unreliable witnesses, the motive was never investigated nor established and the conviction order was perverse and against the sound principles."
45. The disclosure statement of accused Sangeeta Bara Ex.PW 25/A would disclose that she had nowhere disclosed the residential address or locality of accused Sushil Bara. PW 25 W/Ct. Pooja, PW 30 ASI Hawa Singh and PW 35 Insp. Pramendra Singh had visited the area of Rajokari in search of the accused. It is deposed by these PWs that at first instance, the address of the accused Sushil Bara could not be located. Thereafter, again at 0400 am, they went to search the accused who was found present at his house. All three PWs have deposed that accused Sushil Bara was arrested on the disclosure and identification of accused Sangeeta Bara.
46. The perusal of the disclosure statement Ex.PW 25/A would reveals that the accused had not disclosed any specific area or SC No. 57324/2016 State Vs Sushil Bara etc. 34 of 51 35 the locality regarding the address of the accused Sushil Bara. It is not specifically mentioned that the accused Sushil Bara was arrested only on the instance and the disclosure statement of accused Sangeeta Bara. It is admitted by all three witnesses that in disclosure statement Ex.PW 25/A, it was not disclosed that accused Sushil Bara was living in Rajokari.
47. The facts and circumstances as mentioned above has led to the conclusion that the accused Sushil Bara was not arrested on the identification and disclosure statement of accused Sangeeta Bara. Therefore, this fact could not be considered as an exception under section 27 of Indian Evidence Act. Accordingly, the disclosure statement Ex.PW 25/A made by accused Sangeeta Bara is hit by section 25 of Indian Evidence Act.
48. Disclosure statement of accused Sushil Bara and Bimal Kujur and recovery of incriminating material under section 27 of the Indian Evidence Act: The prosecution has relied upon the disclosure statement of accused Sushil Bara Ex.PW SC No. 57324/2016 State Vs Sushil Bara etc. 35 of 51 36 30/A dated 03.10.2012. The accused Sushil Bara has disclosed that he can get recovered the blood stained clothes and the Bhujali i.e. the weapon of offence. Another disclosure statement of accused Sushil Bara was recorded which is Ex.PW 30/N1 dated 06.10.2012 wherein he disclosed that he had threw the clothes in white polythene near Barat Ghar garbage and can recovered the same.
49. The accused Bimal Kujur made the disclosure statement Ex. PW 30/D and disclosed that he can get recovered the blood stained clothes and bag in which Bhujali i.e. the weapon of offence was thrown. On 06.10.2012, another supplementary disclosure statement of accused Bimal Kujur Ex.PW 30/N2 was recorded in which it is disclosed that he falsely told that he threw the clothes on road and now he can recover the clothes.
50. The PW 35 Insp. Pramendra Singh has admitted that the blood stained clothes of accused Sushil Bara could not be recovered on the basis of the disclosure statement. PW 35 Insp. Pramendra Singh further deposed that in pursuance to the disclosure SC No. 57324/2016 State Vs Sushil Bara etc. 36 of 51 37 statement Ex.PW 30/N2, accused Bimal Kujur led them to his rented premises and there, he got recovered his clothes which were worn him by on the date of incident. It is submitted by the IO that there was no blood on his clothes as accused had already washed the same. It is stated that there was some sign of blood, and the clothes were seized vide seizure memo Ex.PW 30/O.
51.It is admitted case that no public witness was present at the time of recovery of the weapon of offence and khakhi papers Ex.PW 30/K and Ex.PW 30/L. No public witness was joined in investigation at the time of recovery of the clothes worn by accused Bimal Kujur which were seized vide seizure memo Ex.PW 30/O. The place of recovery of the Ex.PW 30/K and Ex.PW 30/L was a vacant plot near James Convent School which was frequented with the public persons as admitted by the recovery witnesses of the prosecution. PW 30 ASI Hawa Singh and PW 35 Insp. Pramendra Singh have admitted that the police had not joined any public witness at any point of time. PW 30 ASI Hawa Singh has admitted that the spot of recovery SC No. 57324/2016 State Vs Sushil Bara etc. 37 of 51 38 of these articles is surrounded by residential area and was accessible to the public persons.
52.In the present case, no public person was joined at the time of recovery of the weapon of offence despite availability. The place of recovery of the weapon of offence was frequented with people and accessible. Therefore, it is clear that the said place was not within the exclusive knowledge of the accused Sushil Bara. Only the recovery effected on the basis of the exclusive knowledge of the accused is accepted under section 27 of the Indian Evidence Act.
Therefore, in view of the above, the recovery of the weapon of offence and khakhi papers Ex.PW 30/K and Ex.PW 30/L on the basis of the disclosure statement of accused Sushil Bara becomes inadmissible.
53.The clothes worn by accused Bimal Kujur at the time of commission of offence were recovered vide seizure memo Ex. PW 30/O. PW 35 Insp. Pramendra Singh has admitted that there was no blood stains on the clothes of accused Bimal Kujur SC No. 57324/2016 State Vs Sushil Bara etc. 38 of 51 39 Ex.PW 30/O as the accused had already washed the same. However, there was some sign of the blood on the clothes of accused Bimal Kujur. The FSL report has negated the story of prosecution in this regard. The FSL examination could not detect DNA on the clothes seized vide seizure memo Ex.PW 30/O. In the absence of any DNA profile connecting the clothes, the same could not be considered as incriminating. No witness has identified or deposed that the accused Bimal Kujur was wearing the said clothes at the time of commission of the alleged offence. Therefore, the recovery of the clothes of accused Bimal Kujur vide seizure memo Ex.PW 30/O is not incriminating against him.
54. Recovery of Mobile Phones at the instance of accused Sangeeta Bara: The prosecution has also relied upon the recovery of the mobile phone from the possession of accused Sangeeta Bara. The prosecution has mentioned that the mobile phones were recovered from the possession of accused Sangeeta Bara during her personal search and a seizure memo in this SC No. 57324/2016 State Vs Sushil Bara etc. 39 of 51 40 regard was prepared. PW 30 ASI Hawa Singh has deposed that the accused Sangeeta Bara got recovered three mobile phones from her house/spot which were seized vide seizure memo Ex.PW 30/M.
55. The recovery of these three mobile phones even on the disclosure statement of accused Sangeeta Bara is meaningless because the same does not form any incriminating evidence. The recovered mobile phones were not used in the commission of the offence nor sufficient to corroborate the circumstantial evidence of the case. It is admitted case that these mobile phones belongs to the deceased Manoj Bara. The accused Sangeeta Bara is the wife of deceased Manoj Bara. Therefore, recovery of the mobile phones at her instance from the same house where the deceased was residing could not be considered as incriminating. It is not the case of the prosecution that these mobile phones were concealed by any person after commission of the offence.
56. Forensic Science Laboratory ( FSL) Report: The SC No. 57324/2016 State Vs Sushil Bara etc. 40 of 51 41 prosecution has alleged that the crime team has lifted the finger prints from the spot from empty glasses and other articles. The crime team has also lifted the bloods from the wooden stair, blood in gauze, blood stain earth control, bamboo, and also from the roof of the adjoining house through which, the accused persons fled from the house of deceased.
57. The prosecution has relied upon the FSL report Ex.PW 35/J. In the present case, various articles were sent to the prosecution for DNA finger printing. The prosecution after conduct of Biological examination and DNA Examination has given the following final report:
"BIOLOGICAL EXAMINATION (1) Blood was detected on exhibit '1', '2', '4b', '5', '6', '8', '9a', '9b', 9c', '9d', '11','12', '13', '15a' & '15b'.
(2) Blood could not be detected on exhibit '3', '4a' & '7'.
DNA EXAMINATION The source of exhibits '1', '2', '4b', '5', '6', '8', '9a', '9b', 9c', '9d', '11','12', '13', '15a' & '15b' were subjected to DNA isolation. DNA was isolated from the source of exhibits '1', '8', '11' SC No. 57324/2016 State Vs Sushil Bara etc. 41 of 51 42 & '12', and DNA profiles were generated by using Amp F1 Identifiler plus PCR Amplification Kit. However, DNA could not be isolated from the source of exhibits '2', '4b, '5', '6', '9a', '9b', '9c', '9d', '13', '15a' & '15b' STR analysis was used for each of the samples.
Data was analyzed by using Gene Mapper ID X software.
RESULTS OF EXAMINATION The alleles from the source of exhibit '8' (Sample blood of deceased Manoj Bara in Gauze vide PM No. 858/12 dated 02.10.12) are accounted in alleles from the source of exhibit '1' (Cotton wool swabBlood sample lifted from SOC H. No. RZF 355 Nihal Vihar), exhibit '11' (Knife) & exhibit '12' (Blood stained khaki paper).
CONCLUSION The DNA profiling (STR analysis) performed on the exhibits provided is sufficient to conclude that the DNA profile from the biological stains i.e. blood on the source of source of exhibit '1' (Cotton wool swabBlood sample lifted from SOC H. NO. RZF 355 Nihal Vihar), exhibit '11' (knife) & exhibit '12' (Blood stained khaki paper) is similar with the DNA Profile the source of exhibit '8' (Sample blood of deceased Manoj Bara in Gauze vide PM No. 858/12 dated 2.10.12)."
58. In the present case, the prosecution has alleged that accused SC No. 57324/2016 State Vs Sushil Bara etc. 42 of 51 43 Bimal Kujur while running from the spot after committing the offence has received injury how weapon of offence and his blood was split on the roof of adjoining house of deceased i.e. H. No. RZF 347, Nihal Vihar. The blood sample lifted from the roof of said house was sent to the FSL for examination as exhibit '5'. In the biological examination, the blood was detected on the same, but in DNA examination, it is reported that DNA could not be isolated from the source of exhibit '5'. The cemented material lifted from the roof of the adjoining house no. RZF 347, Nihal Vihar, was examined as exhibit '7' but blood could not be detected on the same.
59. The wearing clothes i.e. pant and shirt claimed to be blood stained worn by accused Bimal Kujur at the time of commission of the offence, were examined in the FSL as exhibit '15a' and '15b'. During DNA examination, it is stated that the DNA could not be isolated from the source of exhibit '15a' and '15b'. In view of the report of FSL report Ex.PW 35/J, it is clear that the prosecution has fails to prove the incriminating SC No. 57324/2016 State Vs Sushil Bara etc. 43 of 51 44 circumstances/evidence against the accused persons on the basis of FSL report Ex.PW 35/J.
60. Test Identification Parade (TIP) of the accused persons In the present case, the prosecution has also relied upon the Test Identification Parade of accused persons recorded by Ms. Ekta Gauba, the then Ld. Metropolitan Magistrate during the investigation. The TIP proceedings are proved by the prosecution by examining PW 31 Ms. Ekta Gauba, the then Ld. Metropolitan Magistrate who proved the TIP proceedings as Ex.PW 31/A and Ex. PW 31/B. Both the accused persons namely Sushil Bara and Bimal Kujur refused to join the TIP proceedings on the ground that their photographs have been taken by the police officials at the Police Station. The Ld. Counsels for accused persons did not cross examine this witness, which means that they have not disputed the deposition of PW 31 Ms. Ekta Gauba. The accused persons have fails to produce any material on record in support of their defence that their photographs were taken by the police SC No. 57324/2016 State Vs Sushil Bara etc. 44 of 51 45 officials in the police station. The accused persons have fails to examine themselves as witness or any other witnesses in support of their submission that their photographs have been taken in the police station. Both the accused persons even in their statement recorded u/s 313 Cr.PC has fails to furnish any explanation in this regard.
In view of the above, I am of the considered opinion that the prosecution has proved the TIP proceeding as Ex.PW 31/A (regarding accused Sushil Bara) and TIP proceedings as Ex.PW 31/B (regarding accused Bimal Kujur). The accused persons refused to join the TIP proceedings without any lawful ground, therefore, adverse inference is drawn against them for their refusal to join the TIP proceedings. The prosecution is able to prove this incriminating circumstances against accused Sushil Bara and Bimal Kujur.
61. The Deposition of PW 7 Dr. D.C. Kataria and Dr. S.K. Biswas The prosecution has alleged that the accused persons while SC No. 57324/2016 State Vs Sushil Bara etc. 45 of 51 46 running from the spot after committing the offence has received the injury and they were treated by Dr. D.C. Kataria and Dr. S.K. Biswas. The prosecution has examined PW 7 Dr. D.C. Kataria who deposed that on 01.10.2012, at about 01.00 pm, one boy namely Sushil came to his clinic and he was having swelling on his right foot and right hand. PW 7 Dr. D.C.Kataria deposed him that he has fallen down from the rikshaw and he received the injury. The PW 7 correctly identified the accused Sushil in the court. During cross examination, PW 7 admitted that he did not prepare any MLC and PW 7 denied the suggestion that accused never came to him for treatment.
62. PW 7 examined by the prosecution is an independent person who supported the story of the prosecution. PW 7 also stood the test of cross examination and in his cross examination, no contradictory fact has emerged which shake his trustworthiness of the credibility. The Ld. Counsel for accused persons has fails to disclosed any motive of PW 7 to falsely implicate the accused in the present case.
SC No. 57324/2016 State Vs Sushil Bara etc. 46 of 51 47
63. PW 8 Sh. S.K. Biswas has also deposed that accused Bimal Kujur came to his clinic and he examined him and found that the accused has sustained injury on his head. PW 8 correctly identified the accused and stood the test of cross examination. The defence could not impeach the deposition of PW 8. Therefore, the deposition of PW 8 is reliable.
64. The prosecution by examining PW 7 Dr. D.C. Kataria and PW 8 Dr. S.K.Biswas is able to prove that on 01.10.2018, immediately on the very next day of the commission of the offence, both the accused persons Sushil Bara and Bimal Kujur were treated for their injuries received by them in the process of running away from the spot.
65. Site Plan The prosecution has relied upon the site plan Ex. PW35/B stated to be prepared at the instance of complainant/PW 4 Smt. Laxmi. The complainant Laxmi was examined by the prosecution as PW 4. However, during her examination in SC No. 57324/2016 State Vs Sushil Bara etc. 47 of 51 48 chief, she remained silent about the site plan of the scene of the crime. The PW 4 was cross examined by the prosecution but even during her cross examination, the site plan was not put to her. The prosecution has fails to prove the preparation of the site plan at the instance of PW 4 Smt. Laxmi. The prosecution has examined PW 6 Insp. Mahesh Kumar, Drafsman who deposed that on receipt of the information, he visited the place of incident. PW 6 deposed that he took rough notes and measurements at the instance of Insp. Pramendra Singh and prepared the scaled site plan Ex.PW 6/A. PW 6 has proved the scaled site plan. PW 35 Insp. Pramendra Singh deposed that he prepared the site plan Ex.PW 35/B at the instance of PW 4 Smt. Laxmi, but she has deposed nothing about preparation of site plan Ex.PW 35/B. Therefore, in the absence of deposition of PW 4 Smt. Laxmi about the site plan, there is shadow of doubt about the preparation of site plan Ex.PW 35/B at her instance.
SC No. 57324/2016 State Vs Sushil Bara etc. 48 of 51 49 Conclusion
66. The present case is based upon the circumstantial evidence. There was no direct evidence or the witness to prove the commission of the charged offence. The circumstances for which an inference of guilt is sought to be drawn must be cogent and firmly established. All the facts or the incriminating circumstances should be consistent only with the hypothesis of the guilt of the accused. All the circumstances should be complete and there should be no gap in the chain of evidence. In the present case, the prosecution has fails to prove the circumstantial evidence relating to the motive, preparation and conspiracy. The prosecution has also fails to establish the circumstantial evidence of last seen theory. The confessional statement of accused Sangeeta Bara, Sushil Bara and Bimal Kujur is hit by section 25 of the Indian Evidence Act. The prosecution could not establish the exception created under section 27 of Indian Evidence Act regarding the recovery on the basis of the disclosure statement of the accused persons. The SC No. 57324/2016 State Vs Sushil Bara etc. 49 of 51 50 FSL report also could not bring on record the incriminating evidence against the accused persons. The adverse inference was drawn on the basis of the TIP proceedings regarding the refusal of the accused persons to join the TIP proceedings. The deposition of PW 7 Dr. D.C. Kataria and PW 8 Dr. S.K.Biswas has also incriminated the accused persons. However, the chain of the circumstantial evidence is broken. The prosecution could not prove all the incriminating circumstances. The prosecution has fails to prove the circumstances which led to the conclusion of the guilt of the accused persons.
67. In view of the above, accused Sushil Bara, Sanjeeta Bara @ Sangeeta Bara and Bimal Kujur are acquitted for commission of the offence under section 302/120B IPC. Accused Sushil Bara and accused Bimal Kujur are also acquitted under section 302/201/34 IPC. The accused persons are in judicial custody. Therefore, they be released from Jail, if not required to be retained in any other case. All the accused SC No. 57324/2016 State Vs Sushil Bara etc. 50 of 51 51 persons are directed to furnish the bail bond in the sum of Rs. 30,000/ each with one surety of the like amount under section 437A of Cr.PC. Release warrant be sent accordingly.
68. File be consigned to record room after completion of necessary formalities.
Announced in the open court today i.e. 10th October, 2018 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI 10.10.2018 This judgment contains 51 pages and all pages bears my signatures.
(DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI 10.10.2018 SC No. 57324/2016 State Vs Sushil Bara etc. 51 of 51