Delhi District Court
State vs . Sushil Kumar And Anr. Page 1 Of Page 39 on 9 September, 2016
IN THE COURT OF MS. BIMLA KUMARI: ADDITIONAL
SESSIONS JUDGE/SPECIAL FAST TRACK COURT:ROHINI
DELHI
Sessions Case No :186/13
Unique ID No. :S.C. No.58180/2016
State
Versus
1.Sushil Kumar S/o. Late Chaman Lal, R/o. C100, Jahangirpuri, Delhi.
2. Rupesh @ Rinku S/o. Late Chaman Lal, R/o. C100, Jahangirpuri, Delhi.
FIR No :485/05. Police Station :Adarsh Nagar Under Sections :376/302/201/174A/34 IPC Date of Committal to Sessions Court : 20.02.2013 Date on which Judgment reserved : 27.08.2016 Date on which Judgment announced : 09.09.2016 J U D G M E N T
1. In the present case, charge in respect of offences u/s.
State Vs. Sushil Kumar and Anr. Page 1 of page 39 376(2) (g), 302/34 & 174A IPC was framed by ld. Predecessor on
12.03.2013 against accused Sushil Kumar and Rupesh Kumar @ Rinku with the allegations that on 20.09.2005 at unknown time, at H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar, Delhi they in furtherance of their common intention with coaccused Gajender Kumar Mehta (already acquitted) committed rape upon the prosecutrix and caused her murder. It was also alleged that on 12.01.06 the process u/s. 82 Cr.P.C., was issued against them by ld. MM, but they did not appear before the Court and were declared as proclaimed offenders by ld. MM on 07.03.2016.
2. Both the accused pleaded not guilty to the said charge and claimed trial.
3. To bring home the guilt of the accused, the prosecution has examined 37 witnesses.
4. PW1 Dr. Nalini Mittal has identified the handwriting and signatures of Dr. Gaurav Chaudhary, who has examined the prosecutrix vide MLC Ex.PW1/A. Dr. Gaurav had opined the patient as brought dead and advised to send the body to the mortuary for further examination and to ascertain the cause of death.
5. An opportunity to cross examine the PW1 was given to accused, but they did not avail of that opportunity.
6. PW2 Charan Pal is the husband of the prosecutrix/deceased. He has deposed that his wife was working as maid servant at C7, Rajan Babu Road, Adarsh Nagar, 20 days prior to her death, his State Vs. Sushil Kumar and Anr. Page 2 of page 39 wife told him that Gajender Mehta and his brothers were keeping evileye on her. He did not take the matter seriously, as it was a big family and the members of such a big family cannot do wrong thing. On 20.09.2005, he received a telephonic call from his nephew that his wife had been admitted in BJRM Hospital. Immediately, he went there and came to know that his wife had expired, due to electrocution. He identified the dead body of his wife, vide statement Ex.PW2/A. His family members and members of his community expressed suspicion over the circumstances, in which the death of his wife had occurred. He moved an application, Ex.PW2/B for conducting the postmortem examination on the body of the deceased from the Medical Board. He moved another application Ex.PW2/C to constitute a Medical Board of doctors of some other hospital other than BJRM Hospital. After the postmortem examination, it was found that his wife was raped and electrocuted. He received the dead body of his wife vide receipt Ex.PW2/D. He had not seen the brothers of the Gajender Mehta earlier and never visited their house.
7. In crossexamination by ld. Counsel for accused, PW2 has deposed that no police complaint was made by him, when his wife told him that Gajender Mehta and his brothers were keeping evileye upon her. He has denied that his wife did not tell him that Gajender Mehta and his brother were keeping evileye upon her and, therefore, no police complaint was made by him.
8. PW3 Ct. Jai Chand was with IO on 21.09.2005, at the time State Vs. Sushil Kumar and Anr. Page 3 of page 39 of arrest of co accused Gajender Mehta (already acquitted).
9. PW4 Bhule Ram is the father of the deceased. He has identified the dead body of his daughter vide statement Ex.PW4. On 21.09.2005, he gave an application to the Medical Superintendent for conducting postmortem on the body of his deceased by medical board. The application is Ex.PW2/C. After postmortem examination, the dead body was received by him vide memo Ex.PW2/E.
10. In crossexamination by ld. Counsel for the accused, PW4 has deposed that he did not make the statement to the police, in the manner, he deposed or that his statement was recorded by the police of its own.
11. PW5 HC Virender Singh has deposed that on 20.09.2005, SI Hiralal received DDNo.21A. Thereafter, on the direction of IO, he alongwith Ct. Shyam Bahadur went to BJRM Hospital Mortuary to take care of the dead body of deceased. On 22.09.2005 the dead body was shifted to Subzi Mandi Mortuary.
12. In cross examination by ld. Counsel for accused, PW5 has deposed that the dead body of the deceased was kept in the dead house of the BJRM Hospital. They (Police officials) normally do not enter the dead house, except to see that the dead body is lying safe or not. He has admitted that inside the dead house the employees of the hospital remain present. At the time of shifting the dead body, he was accompanied by SI Hiralal. He has denied that he did not join the investigation and entire proceedings were done at the PS. State Vs. Sushil Kumar and Anr. Page 4 of page 39
13. PW6 Dr. Akash Jhanjee is the Chairman of Medical Board, who conducted the postmortem examination on the body of the deceased. The medical board gave the cause of death as 'ventricular fibrillation' as a result of electrocution. All the injuries were ante mortem in nature and fresh in duration. All the injuries were produced by electrical contact except injury no.8,10,17 & 18. Injury No.17 & 18 were produced by blunt force, being consistent with forcible sexual intercourse, prior to death. Presence of multiple electrical injuries on the body were suggestive of electrical torture, homicidal in nature. Time since death was two days. The Postmortem Report is Ex.PW6/A, which is in the handwriting of Dr. Mamta Rani.
14. In crossexamination by ld. Counsel for the accused, he has deposed that accidental electrocution or pointed injuries were not possible in the present case. An accidental electrocution or electrocution by torture, would have different representation on the body. The number, nature and location of the injuries on the body of the deceased was the basis for which Board had opined the injuries to be homicidal in nature. He has denied that deceased expired because of accidental electrocution. The vaginal swab were preserved for detecting the presence of semen. He cannot state without looking at FSL result as to whether semen was present, but he has volunteered that injuries of forcible sexual intercourse were noticed. He has denied that the findings of the board were procured at the instance of the IO. He has denied that samples were tampered by the staff of mortuary.
State Vs. Sushil Kumar and Anr. Page 5 of page 39
15. PW7 Inspector Manohar Lal prepared the rough notes and measurement, on the basis of which he prepared the scaled site plan Ex.PW7/A .
16. An opportunity to crossexamine the PW7 was given to ld. Counsel for accused, but he did not avail of that opportunity.
17. PW8 HC Vijay Kumar was MHC(M), with whom IO SI Heera Lal and Inspector Dayanand deposited pullanda . He has also handed over some pullanda to Ct. Balwan for depositing the same at FSL. He has also deposed that, ASI Suresh Kumar has brought some pullandas from FSL and deposited in the malkhana Ct. Ashok also deposited some pullandas, which were sealed with the seals of FSL and he ( PW8) made entires in the register. The photocopy of entries are collectively Ex.PW8/A. As long as, the case property remained in his possession, the same remained intact.
18. In crossexamination by ld. Counsel for accused, he has deposed that signatures of SI Hiralal, were not taken on malkhana register. Exhibits were handed over to Ct. Balwan, on the verbal directions of the SHO. He has denied that he has manipulated the entries in register no.19.
19. PW9 Ct. Shyam Bahadur has deposed that on 20.09.2005 he and Ct. Virender were with IO, SI Hiralal. They went to BJRM Hospital and SI Hiralal collected the MLC of the deceased, on which the doctor had opined her as brought dead. No eyewitness was found there. It was revealed that the deceased was working as maid servant at C60, First State Vs. Sushil Kumar and Anr. Page 6 of page 39 Floor, Rajan Babu Road, Adarsh Nagar, Ct. Virender was left in the hospital and he alongwith IO went to C60, First Floor, Rajan Babu Road, Adarsh Nagar, Delhi. SI Hiralal inspected the spot and prepared the rukka and handed over the same to him for getting the FIR registered.
20. PW9 has further deposed that on 22.09.2005, he again joined the investigation with SI Hiralal and went to Subzi Mandi Mortuary, where the postmortem examination was conducted on the body of the deceased. Thereafter, the dead body was handed over to the LR's of the deceased. Doctor handed over the sealed pullandas containing exhibits, which were seized by the IO vide memo Ex.PW9/A. Thereafter, they came back to the PS and case properties were deposited in the malkhana.
21. In crossexamination by ld. Counsel for accused he has deposed that pullandas were seized by the IO in his presence. He has denied that pullandas were not deposited in malkhana by IO or that pullandas were not sealed in his presence.
22. PW10 ACP Dayanand is the second IO. He has deposed that on 27.09.2005, the investigation of the case was taken over by him. He arrested coaccused Gajender Mehta vide memo, Ex.PW10/A.
23. In crossexamination by ld. Counsel for accused he has deposed that on 27.09.2005 when the spot was visited, the mother of the accused met them. Efforts were made for the searching the accused persons by sending the police team. He does not recollect the date on which the police team was formed. The statements of the public witnesses must have been recorded after 27.09.2005. Two days police State Vs. Sushil Kumar and Anr. Page 7 of page 39 custody remand of accused Gajender was also taken for the searching the absconding accused Sushil Kumar and Rupesh @ Rinku. He did not verify the ownership of house no. C60, Ist Floor, Rajan Babu Road, Adarsh Nagar, Delhi. He has volunteered that, the said house belonged to the accused persons. He has denied that sincere efforts were not made by him to apprehend accused Sushil Kumar and Rupesh @ Rinku or that they were living in the Delhi itself or that there was no allegation against them and they have been falsely implicated in the case. He has further denied that the switch board and the exhaust fan were planted upon accused Sushil Kumar and Rupesh @ Rinku. He has further denied that both the accused Sushil Kumar and Rupesh @ Rinku were not present on the place of occurrence on 20.09.2005 or that both the accused Sushil Kumar and Rupesh @ Rinku were not living in house no. C60, Ist Floor, Rajan Babu Road, Adarsh Nagar, Delhi or that that he has not carried out the fair and complete investigation.
24. PW11 SI Manju Bala has recorded the FIR, Ex.PW11/A on the basis of tehrir sent by SI Hira Lal.
25. PW12 Ct. Sudhir has took 8 sealed pullandas alongwith sample seal to FSL, Rohini vide RC No.140/21/12 and deposited the same in FSL Rohini.
26. PW13 HC Balwan Singh also took 11 sealed pullandas and deposited the same to FSL vide RC No.101/21/05.
27. An opportunity to crossexamine PW12 and PW13 was given to ld. Counsel for accused but he did not avail of that opportunity.
State Vs. Sushil Kumar and Anr. Page 8 of page 39
28. PW14 Smt. Meena has deposed that on 20.09.2005, she was working in school. At about 10.25 am, one Santosh Aunty came and told her that some body had come to call them, saying that the prosecutrix had become unconscious at C60 Rajan Babu Road, Adarsh Nagar. Thereafter, she alongwith Santosh Aunty went to C60, Rajan Babu Road 1st Floor. One Motti Aunty was sitting on the bed. There was one more girl in the house. The prosecutirx was lying in the room between the bed and settee. They strongly shook (jhankora) her but she did not move. The Motti Aunty then said to take her to the hospital. Thereafter, she alongwith Kala Aunty and Santosh Aunty took the prosecutrix to Dharmatama Hospital, in rickshaw, from where the prosecutrix was referred to BJRM Hospital. The sons of the Motti Aunty were not present at that time. They took her to BJRM Hospital, where she was declared as Dead. She does not know who had come to call them. The deceased was her Bua and had told her that the sons of Motti Aunty were having evil eye and their conduct was not proper towards her. She told her, that if she felt so, then she could leave the work. She also advised her to be careful. She does not know the names of the sons of the Motti Aunty, where the prosecutrix was working, as she did not tell the names of the sons of Motti Aunty.
29. In the leading questions put to her by ld. Addl. PP, PW14 has deposed that the prosecutrix told her that one day, one boy by the name of Sushil, who is the younger brother of Gajender had tried to catch hold her hand and due to that she snubbed him. She has also admitted State Vs. Sushil Kumar and Anr. Page 9 of page 39 that owner of house, where prosecutrix was working, neither helped her in taking the prosecutrix to the hospital nor made a telephonic call to the police.
30. In crossexamination by ld. Counsel for accused, PW14 has denied that prosecutrix did not tell her that the boy, by the name of Sushil, tried to catch hold her hand and she snubbed him.
31. PW15 Smt. Santosh has deposed that she does not remember the date, month and year, however, she was present in her school. One person came to her and told that his maid servant had become unconscious. She told those facts to Meena and they went to the house of that person. On reaching there, they found that prosecutrix was lying unconscious on the floor. Thereafter, she was taken to Dharmatma Hospital, from there she was referred to BJRM Hospital. They took her to the BJRM Hospital, where she was declared dead.
32. In crossexamination by ld. Addl. PP she has deposed that Police neither made any inquiry from her nor recorded her statement. She has denied that she has deposed falsely as she has been won over by the accused persons.
33. An opportunity to crossexamine the witness was given to ld. Counsel for accused but he did not avail of that opportunity.
34. PW16 Dr. Ajay Kumar has deposed that he is running a Clinic at C59, Rajan Babu Road, Adarsh Nagar, Delhi on the ground floor and residing at 1st Floor. On 20.9.2005 at around 9.00/9.15 , his staff Ms. Naveen, alongwith one boy, who was residing in his State Vs. Sushil Kumar and Anr. Page 10 of page 39 neighbourhood, whose name he does not know came and boy told him that one lady, who was working as a maid in his house was lying on the floor and was unconscious. He went to C60, 1st Floor, Rajan Babu Road with his staff and found that one lady was lying on the floor. He examined her and found that she had already died. He referred her to government hospital. Three/four more persons were present in the house at that time. He does not know the names of persons, who were present in the house. He cannot identify the boy, who had come to call him.
35. In crossexamination ld. Addl. PP, he has deposed that he does not know, as to who was residing at 1st Floor of C60, Rajan Babu Road, in the year 2005 and specially on 20.9.2005. He cannot say that the family of Chaman Lal Mehta was residing at C60, Rajan Babu Road at the relevant time. He cannot say that accused Sushil, present in the court, had come to his Clinic on 20.9.2005. He cannot say that the accused Rupesh @ Rinku, present in the court, is the brother of accused Sushil and was also present in the house when he visited there. He had not told the police the name of the boy who had come to his Clinic on 20.9.2005. He cannot say, when he went to C60, 1 st Floor, the elder son of Chaman Lal, Gajender and younger son Rinku were also present in the house. He has denied that he has deposed falsely and not identified the accused intentionally, as accused are his neighbours.
State Vs. Sushil Kumar and Anr. Page 11 of page 39
36. PW17 Dr. Ravinder Sharma has deposed that in the year 2005 at about 10/10:30a.m., when he was going outside, from the hospital for some work , three/four ladies came in the cycle rickshaw, in which one lady was lying. He checked the lady, who was lying in the rickshaw but, she was not breathing. He asked them to take the patient to BJRM Hospital.
37. An opportunity to crossexamine PW16 and PW17 was given to ld. Counsel for accused but he did not avail of that opportunity.
38. PW18 Dr. Gaurav Chaudhary has initially examined the prosecutrix vide MLC Ex. PW1/A and opined her brought dead. He advised to send the body to mortuary for further examination to ascertain the cause of death.
39. In crossexamination by ld. Counsel for accused he has deposed that he has no idea as to whether the patient was examined by any other doctor, when the patient was brought by examination.
40. PW19 Inspector Satya Prakash Vashist is Incharge, Mobile Crime Team, North West District. He has inspected the spot. No chance print was found there. He advised the IO to seek the expert opinion regarding the wire hanging there. The Photographer took the photographs. He prepared the report Ex.PW19/A.
41. PW20 Smt. Kalawati has deposed that 9 years ago, when she was sitting in the gali, outside her house with her other relatives, two boys came on motorcycle and started making enquiry about the house of prosecutrix. The boys informed them that prosecutrix had become State Vs. Sushil Kumar and Anr. Page 12 of page 39 unconscious and fell down, while she was working. Those two boys after informing her left . She alongwith her neighborer Babita went to the house of Mehra, where mother of Mohit Mehra was sitting on the bed. In that room body of deceased was lying on the floor in unconscious condition and was having burn injury on her neck. Meena and Santosh, who were her neighbours, also reached there. They brought one rehri rickshaw and the deceased was brought downstairs and was taken to Dharmatma hospital, from where she was taken to BJRM hospital. In the hospital doctor told them that the prosecutrix was dead. Deceased used to work in the house of Mohit Mehra and Moti. Earlier Meena, Santosh and prosecutrix used to work in govt. school. Thereafter, prosecutrix started working in the house of Mohit Mehra. They have heard that the deceased died due to the electrocution, by the water heating rod. She cannot identify those two boys, who had come on motorcycle to inform them. She does not know and cannot identify the owner of the house, where they had gone to see the prosecutrix after receiving information of her unconsciousness. Police did not make inquiry from her. She did not make any statement to the police.
42. In crossexamination by ld. Addl. PP, she has deposed that her statement was not recorded by police. She has denied of having made the statement Ex. PW20/A to police. She has denied that when they went to H.No. C60, Adarsh Nagar, Delhi, where deceased used to State Vs. Sushil Kumar and Anr. Page 13 of page 39 work, her body was cold. She has further denied that the accused Sushil and Rupesh had come to their colony on motorcycle and had given the address of the house, where deceased was lying. She did not state to the police that she could identify those boys, who had come on motorcycle to inform her. She has deposed that she had taken the deceased to the hospital but she had not given any history to the doctor. She has further deposed that after postmortem of deceased she came to know that deceased was having several electrocution injuries on her body. She has denied that she has deposed falsely with regard to both accused or that she has deliberately not identified the accused persons. She has denied of having made the statement Ex. PW20/B to the police. She has further denied that the accused, Rupesh and Sushil, present in court, are the same boys who had come on motorcycle in their colony and informed them about the falling of prosecutrix and had also given the address of the house, where the body of prosecutrix was lying.
43. An opportunity to crossexamine the witness was given to ld. Counsel for accused but he did not avail of that opportunity.
44. PW21 Ct. Mehandi Hassan got conducted the medical examination of accused Rupesh. After medical examination, doctor handed over him four sealed pullandas alongwith sample seal. He handed the same to IO, who took the same into possession vide memo Ex.PW21/A. State Vs. Sushil Kumar and Anr. Page 14 of page 39
45. PW22 Ct. Amit got conducted medical examination of accused Sushil Kumar.
46. PW23 HC Kishan Kumar has received the telephonic information from Ct. Arun from BJRM Hospital about the admission of prosecutrix. He recorded the information vide DD No.21B, Ex.PW23/A . The DD was given to SI Hiralal for investigation, who left with Ct. Virender for the hospital.
47. An opportunity to crossexamine PW23 was given to ld. Counsel for accused but he did not avail of that opportunity.
48. PW24 HC Ved Prakash was with IO, Inspector Virender Kadyan, at the time of arrest of accused Rupesh @ Rinku and Sushil.
49. In crossexamination by ld. Counsel for accused, he (PW24) has denied that the signatures of accused Rupesh and Sushil were obtained on blank papers and later on, the same were converted into incriminating documents. He has further denied that he has not joined the investigation, in the manner, he deposed or that he is deposing at the instance of IO.
50. PW25 Dr. Narender has conducted the Potency Test of accused Rupesh and Sushil vide detailed notes on MLC Ex.PW25/A and Ex.PW25/B respectively. All exhibits were sealed and handed over to police alongwith the samples.
51. An opportunity to crossexamine PW25 was given to ld. Counsel for accused but he did not avail of that opportunity.
52. PW26 Dr. Vaibhav Gulati has identified the handwriting and State Vs. Sushil Kumar and Anr. Page 15 of page 39 signatures of Dr. Rachit on the MLCs Ex.PW25/A & Ex. PW25/B of Rupesh and Sushil.
53. In crossexamination by ld. Counsel for accused, he has deposed that he personally, was not present, when the said MLCs were prepared by Dr. Rachit.
54. PW27 Ct. Sudhir Kumar has deposed that on 21.12.2012, on the instructions of IO/Inspector Virender Kadiyan, he took eight sealed parcels alongwith two sample seals to FSL Rohini and deposited the same vide RC No.140/21/12. During the period, the samples remained in his possession, the same were not tampered with.
55. In crossexamination by ld. Counsel for accused, he has denied that he did not obtain the sealed samples from MHC(M) and deposited the same to FSL, in the manner, he deposed.
56. PW28 HC Arun Kumar has deposed that on 20.09.2005 at about 11:15 a.m. the prosecutrix was brought to BJRM hospital by three ladies namely Kalawati, Meena and Santosh. Patient was declared brought dead. He gave the information to PS Adarsh Nagar.
57. An opportunity to crossexamine PW28 was given to ld. Counsel for accused but he did not avail of that opportunity.
58. PW29 Vishal Goel has deposed that he knows Gajender Mehta, as he is residing, in a flat, opposite to his office. In September, 2005, the exact date, he does not recollect, he reached his office at about 10:00 a.m and found that there was lot of commotion in the opposite flat, belonging to Gajender Mehta. He sent one of the boys, working in his State Vs. Sushil Kumar and Anr. Page 16 of page 39 office, namely Deepak Jain, to go and check, as to what had happened. Deepak Jain came back and told him that the maid servant was lying unconscious on the floor. The maid servant used to do the cleaning work in his office also. He went there. Many ladies were present there. He was requested to assist in lifting the maid servant . She was brought at the ground floor and was put in the rickshaw. He does not know as to who had brought that rickshaw. As per the rumors, the maid servant had suffered current. As he knew, Sushil was the brother of Gajender but he does not know about Rinku. He may perhaps identify Sushil and Rinku but much time has elapsed since then. He is not sure about the accused, present in the Court, being the Sushil and Rinku. He has volunteered that he was not able to identify Sushil or Rinku as lot of time has since elapsed. Police had recorded his statement. He does not recollect as to whether anything specifically was told by him to the Police regarding Sushil or Rinku. As he recollects, Gajender Mehta was present, at the ground floor, on his bike, near the rickshaw, on which maid servant was laid.
59. In crossexamination by ld. Addl. PP, PW29 has deposed that he does not recollect as to whether he had stated to the Police in his statement that Sushil and Rinku, brothers of Gajender were not present at the house. He does not know the names of the ladies, who were present in the flat of Gajender Mehta, when he reached there. He does not know the names of the persons/ladies, who had requested him to assist in lifting the maid servant for taking her to the rickshaw. He does not know State Vs. Sushil Kumar and Anr. Page 17 of page 39 the name of the rickshaw puller. He has denied that he was very well aware about the fact that Rinku is the younger brother of Gajender Mehta or that he intentionally not disclosed that fact. He has denied that he can very well identify both Sushil and Rinku but intentionally not identified them.
60. An opportunity to crossexamine PW29 was given to ld. Counsel for accused but he did not avail of that opportunity.
61. PW30 Smt. Naveen, was nurse in the clinic of Dr. Ajay Kumar (PW16). She has deposed that on 20.09.2005at about 9.15 AM one person came to the clinic and told that condition of a patient was worse and requested her to inform the doctor. She went upstairs and informed the doctor. Thereafter, she and the doctor accompanied that person and went to his house. After reaching there, the doctor asked her to stand outside. She was looking from outside. She heard the doctor telling the persons, present near the patient, to take the patient to the hospital. After that, she alongwith the doctor came back. She had not asked the name of the person, who had come to the clinic to call the doctor. The patient was the lady, who was examined by the doctor. She does not know the name and ailment of the patient. She cannot identify the person, who had come to the clinic to call the doctor, as much time has elapsed. None of the persons, present in Court, was the person, who had come to the clinic to call the doctor.
62. In crossexamination by ld. Addl. PP, she has deposed that she does not recollect as to whether the person, who had visited the State Vs. Sushil Kumar and Anr. Page 18 of page 39 clinic, was in perplexed condition. She does not know that she had visited the first floor of premises no. C60, Rajan Babu Road, Adarsh Nagar, alongwith Dr. Ajay Kumar, to see the patient. She is not aware that the lady (the prosecutrix) was doing the cleaning and sweeping work in the building where they had gone to see the patient. She is not aware that Sushil was living in C60, Rajan Babu Road, Adarsh Nagar. She has denied that she knew Sushil as he was living in the nearby building or that it was Sushil, who had come to the clinic to call the doctor. She has denied that accused Sushil, present in the court had come to the clinic to call the doctor and he was in a perplexed condition or that accused Sushil told her that something had happened with the prosecutrix, who was doing cleaning and sweeping in his house and she was lying in an unconscious state. She has further denied that she has not identified accused Sushil, deliberately, as she has been won over by the accused. She has denied that she alongwith Dr. Ajay went inside the room and had seen that one lady was lying in an unconscious state, near the cooler. She has further deposed that she does not know whether Gajender and Rupesh @ Rinku, are the brothers of Sushil and they were also present inside the room. She has volunteered that as she remained outside the room. She does not know Gajender and Rupesh @ Rinku. She has denied that accused Rupesh @ Rinku present in the Court, was present in the room, where the lady (prosecutrix) was lying on the floor. She has State Vs. Sushil Kumar and Anr. Page 19 of page 39 further denied that accused Rupesh @ Rinku was present in the room and he was perplexed at that time. She has further denied that she has not identified accused Rupesh @ Rinku, intentionally, in order to save him. She has further denied that there was no other person in the room except accused Sushil, his brothers Gajender and Rupesh @ Rinku and their mother and the prosecutrix. She does not know whether her statement was recorded by the police or not. She has volunteered that she was called by the police to obtain her signatures. She has denied of having made the statement Mark PW30/PX to police or that she is deposing falsely.
63. In crossexamination of by ld. Counsel for accused she has deposed that she remained outside the room and she was not aware as to what was transpiring inside the room.
64. PW31 ACP H.S.P. Singh, is the 3rd IO. He has deposed that on 23.10.2005, the investigations of case was entrusted to him. During investigation, he visited the spot i.e H.No. C60, First Floor, Rajan Babu Road, Adarsh Nagar. PW Mani Ram Joshi met him at the spot. He prepared site plan already Ex.PW23/A at the instance of PW Mani Ram Joshi. On 06.12.2005, he obtained the NBWs of accused Sushil Kumar and Rupesh @ Rinku. On 09.12.2005 he filed the chargesheet of this case against accused Gajender Mehta. The other accused persons could not be arrested by that time. On 12.01.2006 he obtained the process u/s 82 & 83 Cr.P.C against accused Sushil Kumar and Rupesh @ Rinku. Later on, both accused were declared as proclaimed offenders by the State Vs. Sushil Kumar and Anr. Page 20 of page 39 Court. He filed supplementary chargesheet against accused Sushil Kumar and Rupesh @ Rinku.
65. In crossexamination by ld. Counsel for accused he has deposed that he went to the spot at about 10.10/10.30 AM alongwith SI Joginder and HC Sushil. He met Mani Ram at the ground floor of H.No. C60, Rajan Babu Road. He didn't obtain the signature of PW Mani Ram Joshi on the site plan Ex.PW23/A. He has denied that PW Mani Ram Joshi was not present at the spot and, therefore, his signature is not appearing on the site plan Ex.PW23/A or that the site plan Ex.PW23/A was prepared by him while sitting in PS. He does not remember the exact number of his visits to trace the accused Sushil Kumar and Rupesh @ Rinku during the period the investigation of the case remained with him. He has volunteered that he visited several times to trace the above named accused persons. He only visited the area of Jahangirpuri and Adarsh Nagar to search both the accused during his all visits. He did not apply for recording the phone calls of both accused before concerned department/authorities during the period, the investigation of the case remained with him. He also visited the house of elder brother of both accused situated at C100 Jahangirpuri, to trace them. He requested the elder brother of accused persons to give his mobile number but he didn't inform his mobile number to him. He does not know if the elder brother of accused persons as well as other relatives were having the mobile State Vs. Sushil Kumar and Anr. Page 21 of page 39 phones at that time as they didn't cooperate in the investigation and they denied to accept the notice to produce both the accused persons. He has not initiated any proceeding against them despite their refusal. He has denied that he was very well knowing the whereabouts of both these accused persons at that time or that they were residing at C 100, Jahangirpuri, Delhi, by that time or that I got declared them proclaimed offenders falsely. He has further deposed that he did not record the statements of persons residing in the neighbourhood of H.No.C100, Jahangirpuri. He has volunteered that he was secretly watching that area. He has denied that he didn't conduct the fair investigation of the case or that no search of accused Sushil Kumar and Rupesh @ Rinku was conducted by him.
66. PW32 Deepak Jain has deposed that in the year 2005, he was working in the office of Vishal Goel. At about 10/10.15 am, he heard loud noise from the flat opposite. He alongwith Vishal Goel went there and found that 2/3 ladies were raising alarm and one lady was lying on the floor. On their asking, 23 ladies informed them that the lady, lying on the floor, received electrical current. He and Vishal Goel lifted that lady, as there was no male member in the house and took the lady to downstairs, from where 2/3 ladies took her to the hospital by rickshaw. Police came to their office and made inquiries from him.
67. In crossexamination by ld. Addl. PP, he has deposed that the lady, who was lying on the floor used to do cleaning and sweeping work in their office as well as in the building. He has denied of having State Vs. Sushil Kumar and Anr. Page 22 of page 39 made the statement Mark Y to the police. He has denied that he intentionally not disclosed the complete true facts, as he has been won over by accused Sushil and Rupesh, present in the Court.
68. An opportunity to crossexamine PW32 was given to ld. Counsel for accused but he did not avail of that opportunity.
69. PW 33 Dr. Rajender Kumar has examined the exhibits biologically and serologically vide reports Ex.PW27/G and Ex.PW33/A respectively.
70. PW34 Dr. Indresh Kumar Mishra has also examined the exhibits biologically vide report Ex.PW34/A.
71. An opportunity to crossexamine PW33 & PW34 was given to ld. Counsel for accused but he did not avail of that opportunity.
72. PW35 SI Hiralal is the first IO of case. He has deposed that on 20.09.2005 he went to BJRM Hospital alongwith Ct. Shyam Bahadur on receipt of DD No.21, Ex.PW23/A and collected the MLC of the deceased/victim. No eyewitness was present in the hospital. Thereafter, he went to H.No.C16(should be C60), first floor, Rajan Babu Road, Adarsh Nagar, where he met with one lady, w/o. Shri Chaman Lal. In the bathroom, one electric wire was hanging. He did not find any witness at the spot. He made an endorsement Ex.PW34/A and handed over the rukka to Ct. Shyam Bahadur for registration of case. He inspected the spot and prepared rough site plan Ex.PW35/B. He went to the mortuary of BJRM Hospital and casually inspected the dead body of the deceased/victim and prepared the inquest report Ex.PW35/C. Since, legal State Vs. Sushil Kumar and Anr. Page 23 of page 39 heirs of the deceased wanted the postmortem examination to be conducted by Board of Doctors, he moved an application Ex.PW35/D for getting the dead body preserved. Thereafter, the Board of Doctors was constituted. He got the spot of occurrence photographed by a photographer. On 21.09.2015, he arrested accused Gajender Mehta vide arrest memo Ex.PW3/A. On 22.09.2005, the dead body of the deceased was shifted to the Subzi Mandi Mortuary and the postmortem examination was conducted by the Medical Board. The doctors handed over four sealed pullandas and one sample seal to him, which were taken into possession vide memo Ex.PW9/A. On 22.09.2005 the body of the deceased was handed over to her husband Shri Chaman Pal vide receipt Ex.PW2/D. On 27.09.2005 he received the postmortem report Ex.PW6/A, which opined the cause of death as 'electrical shock', and forcible intercourse, prior to the death. Therefore, Section 302 and 376 IPC were added and further examination was handed over to Inspector Daya Nand. The FSL Report are Ex.PW35/F and Ex.PW35/G.
73. In crossexamination by ld. Counsel for accused, PW35 has denied that he did not record the statement of the witnesses properly and obtained their signatures on the blank papers.
74. PW36 Inspector Virender Kadiyan is another IO, who has arrested both accused and got their medical examination conducted.
75. In crossexamination by ld. Counsel for accused persons, he has denied that signatures of the accused persons were obtained on blank papers and later on they were converted into various memos.
State Vs. Sushil Kumar and Anr. Page 24 of page 39
76. PW37 is Inspector Praveen Kumar. He is the last IO. He has filed the supplementary challan against the accused.
77. An opportunity to crossexamine PW37 was given to ld. Counsel for accused but he did not avail of that opportunity.
78. Statements of accused Sushil and Rupesh u/s. 313 Cr.P.C. have been recorded separately, wherein they have denied the allegations of prosecution and submitted that they were residing at C100, Jahangirpuri, Delhi. They were not on visiting terms with his brother Gajender Mehta, who was residing at C60, First Floor, Rajan Babu Road, Adarsh Nagar. They never saw the deceased, as they were not residing at C60, First Floor, Rajan Babu Road, Adarsh Nagar. They were arrested, from the court, on their surrender application. IO obtained their signatures, forcibly. Since the day of their birth till the date of their surrender in the court, no police official visited their house at C100, Jahangirpuri, Delhi. When they came to know their involvement in the present case, they moved the surrender applications before the Court. It is a false and frivolous case against them. IO wrongly got declared them proclaimed offender without approaching their residence at C100, Jahangirpuri, Delhi. Inspector Parveen filed the chargesheet against them in mechanical manner without doing the proper investigation. The house number C60, first floor, Rajan Babu Road belongs to his elder brother Gajender Mehta. They never visited the said house.
79. Both accused persons have examined one witness in their defence. He is Jallauddin.
State Vs. Sushil Kumar and Anr. Page 25 of page 39
80. DW1 has deposed that accused Rupesh and Sushil reside at C100, Jahangirpuri, in the same gali, where he is residing. On 20.09.2005 he went to the park for morning walk and remained there till 7:00 a.m. He met both the accused persons in the said park. He is running a shop of kiryana and usually keeps Tuesday as holiday. On that day he left the house and played cards in front of the shop situated at C 100, Jahangirpuri, Delhi with the father of the accused Sushil alongwith two other persons namely Kallan Chacha and Ranjeet and remained their till 1 p.m. During that period accused Sushil and Rupesh remained at their shop. In the last month of year 2010, he came to know that the accused persons have been falsely implicated in the case of murder of one lady. He went to the police station for giving his statement, but police official did not record his statement and threatened him to falsely implicate in the case, if he stated something regarding the presence of Sushil and Rupesh with him. In house no.C100 only accused persons were residing with their father. Their mother was not residing with them, as she was residing at Adarsh Nagar with her elder son. He never saw the mother of accused Sushil and Rupesh in the house no. C100.
81. In crossexamination by ld. Addl. PP, DW1 has deposed that he does not remember the date and month of Bakrid and Eid festivals in the year 2005. He does not know as to whether the deceased was the employee of the accused. He has denied that he is deposing falsely, being the friend of the accused persons.
82. I have gone through the written submissions filed by ld.
State Vs. Sushil Kumar and Anr. Page 26 of page 39 Counsel for the accused and also heard oral arguments.
83. Ld. Counsel for accused persons has prayed for acquittal of the accused by submitting that coaccused Gajender Mehta has already been acquitted the ld. Predecessor on 21.10.2009. Role of the accused persons is same as that of coaccused Gajender Mehta. FSL Result is in favour of the accused persons. Accused persons were not present at the spot. The prosecution witnesses have not supported the prosecution story. Both the accused persons were declared proclaimed offender falsely and without proper investigation.
84. On the other hand, ld. Addl. PP has submitted that evidence of Prosecution witnesses are trustworthy and reliable. Public witnesses have been won over by the accused persons. The incident has taken place in the house of accused and burden lies on them to prove the circumstances under which the rape was committed and death of deceased occurred.
85. First of all, I am dealing with Section 376 and 302 read with 34 IPC with which the accused persons have been charged with.
86. It is significant to note that, there is no direct evidence in the case, as the prosecutrix has died.
87. One piece of circumstantial evidence, against the accused persons, was the testimony of PW Mani Ram Joshi, who had last seen the deceased going to the house of the accused persons on the relevant date and had also seen the accused Sushil and Rupesh in perplexed condition after the death of the deceased/prosecutrix. However, State Vs. Sushil Kumar and Anr. Page 27 of page 39 unfortunately, PW Mani Ram Joshi could not be examined on account of his nontraceability, as is clear from the ordersheet dated 22.04.2015.
88. The only incriminating evidence against the accused persons is that they are stated to be residing with his brother Gajender Kumar (who has already been acquitted by ld. Predecessor.) in the house where the deceased is reported to have died and murdered.
89. In the present case, PW6 Dr. Akash has proved on record that injury no.17 & 18 on the body of the deceased were produced by blunt force impact being consistent with forcible sexual intercourse prior to death. He has also deposed that presence of multiple electrical injuries on the body of the deceased were suggestive of electrical torture, which was homicidal in nature. It is significant to note that in cross examination by ld. Counsel for accused, PW6 has categorically deposed that accidental electrocution was not possible in the present case. He has clearly deposed that number, nature and location of the injuries on the body of the deceased was the basis on which the Board of Doctors has opined that, electrical injuries were homicidal in nature. He has categorically denied that deceased expired due to accidental electrocution.
90. It is worth noting that as per Section 106 of the Indian Evidence Act, the burden of the proof lies on a person when a fact is especially within the knowledge of that person.
91. Therefore, Section 106 Indian Evidence Act 1872, will apply to the accused only if prosecution is able to prove the presence of State Vs. Sushil Kumar and Anr. Page 28 of page 39 the accused persons at the spot i.e. H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar on the relevant date.
92. It is significant to note that coaccused Gajender Mehta, who is the real brother of accused Sushil Kumar and Rupesh has already been acquitted by ld. Predecessor on 21.10.2009, as prosecution was not able to prove the presence of accused Gajender Mehta in H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar or that he was the owner of that house.
93. Now, the question that arises for consideration whether accused Sushil and Rupesh were present at C60, First Floor, Rajan Babu Road, Adarsh Nagar, on the relevant date where the deceased is stated to have raped.
94. To prove the presence of accused persons in the house in question, prosecution has examined following witnesses: (1) PW14 Smt. Meena, (2) PW15 Smt. Santosh, (3) PW16 Dr. Ajay, (4) PW20 Smt. Kalawati, (5) PW29 Shri Vishal Goyal, (6) PW30 Smt. Naveen and (7) PW32 Deepak Jain.
95. PW14 Smt. Meena has categorically deposed that on 20.09.2005 at about 10:25 a.m., she alongwith Santosh went to the spot. One Moti aunty was sitting on the bed and prosecutrix was lying in the room. The sons of the said moti aunty were not present at that time. She does not know the names of the sons of said moti aunty, where State Vs. Sushil Kumar and Anr. Page 29 of page 39 the prosecutrix was working.
96. PW15 has also categorically deposed that, she does not remember the date, month and year. She alongwith Meena went to the house of a person, who had come to her school to inform her that his maid servant had become unconscious. They found that prosecutrix was lying unconscious on the floor. It is significant to note that PW15 also did not tell the name of the person, who had come to call her. In crossexamination by ld. Addl. PP she (PW15) deposed that police had not inquired from her and her statement was not recorded.
97. PW16 Dr. Ajay has also deposed that on 20.09.2005 at about 9/9.15 a.m. his staff nurse Smt. Naveen alongwith one boy, who was residing in his neighbourhood and whose name he does not know, came and told him that one lady, who was working as maid servant in his house was lying on the floor as unconscious. He went to his house and examined her. He found that lady was already died. 3/4 persons were present in the house at that time, but he does not know the names of those persons. He cannot identify the boy, who had come to call him.
98. PW20 Smt. Kalawati has also deposed that, two boys came and informed her that prosecutrix had become unconscious and fell down while she was working. Thereafter, those boys left. She alongwith her neighbour Babita went to the house of Mohit Mehra, where the body of the prosecutrix was lying on the floor in unconscious condition. She cannot identify those two boys, who had come on the motorcycle and informed her about the unconsciousness of prosecutrix. She does not State Vs. Sushil Kumar and Anr. Page 30 of page 39 know and cannot identify the owner of the house, where she had gone to see the prosecutrix after receiving the information. Police did not make inquiry from her and she did not make any statement to the police.
99. In crossexamination by ld. Addl. PP also PW20 has deposed that her statement was not recorded by the police. She has denied of having made the statement Ex.PW20/A to police or that she went to the H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar. She has categorically denied that accused persons Sushil and Rupesh had come to her colony on motorcycle and had given the address of the house, where the deceased was lying unconscious. She has denied that she deliberately and intentionally not identified the accused persons. She has further denied that accused Sushil and Rupesh, present in the court, are the same boys, who had come on motorcycle to inform her about the falling of the prosecutrix.
100. PW29 Vishal Goyal has deposed that in September, 2005, at about 10:00 a.m., he sent Deepak Jain to check as to what had happened in the opposite flat, belonging to Gajender Mehta. Deepak came back and told him that maid servant was lying unconscious on the floor. He went there and many ladies were present there. He assisted in lifting the maid servant on the request of said ladies. He is not sure about the accused, present in the court, are Sushil and Rupesh. He can not identify the accused persons as lot of time has elapsed. He State Vs. Sushil Kumar and Anr. Page 31 of page 39 does not remember as to whether anything specifically was told by him to the police regarding the accused Sushil and Rupesh.
101. In crossexamination by ld. Addl. PP he has denied that he is very well aware about the fact that Rinku is the younger brother of Gajender Mehta or that he intentionally not disclosed that fact. He has further denied that he can very well identify accused Sushil Kumar and Rupesh but intentionally not identified the accused persons.
102. Further, PW30 Smt. Naveen, who was the nurse in the clinic of Dr. Ajay (PW16) has also deposed that on 20.09.05at about 9:15 a.m. one person came at the clinic and told that the condition of the patient was worse and requested her to inform the doctor. Accordingly, she informed the doctor. Thereafter, she accompanied the doctor and went to the house of that person. Doctor asked to stand outside from house. She had not asked the name of the person, who had come to the clinic to call the doctor. She cannot identify the person, who had come to call her as much time elapsed. She has categorically deposed that none of the persons present in Court, was the person who had come to the clinic to call the doctor.
103. In crossexamination by ld. Addl. PP also she has deposed that she does not recollect that the person, who visited the clinic was in perplexed condition. She has denied that she knew Sushil, as he was living in the nearby building or that it was Sushil who had come to the clinic to call the doctor. She has categorically denied that accused Sushil, present in the court, had come to the clinic to call the doctor and State Vs. Sushil Kumar and Anr. Page 32 of page 39 he was in perplexed condition. She has denied that she is not identifying Sushil, deliberately, as she has been won over by accused. She has further denied that she does not know whether Gajender and Rupesh are the brothers of Accused Sushil and they were present inside the room. She does not know Gajender and Rupesh. She has denied that accused Rupesh was present in the room, where the prosecutrix was lying on the floor. She has further denied that accused Rupesh, was present in the room and was in perplexed condition. She has further denied that she is not identifying the accused Rupesh in order to save him. She has further denied that there was no person in the room except accused Sushil, who is the brother of Gajender Mehta and Rupesh. She does not know whether her statement was recorded by the police or not. She has denied of having made statement Ex.PW30/PX to the police.
104. Further, PW32 Deepak Jain, who was working in the office of Vishal Goyal (PW29) has also deposd that in the year 2005, he heard loud noise from the opposite flat. He alongwith Vishal Goyal went there and found that 2/3 ladies were raising alarm and one lady was lying on the floor. On the asking of 2/3 ladies he and Vishal Goyal lifted the body of that lady and brought her downstairs as there was no male member in the house. Police came to their office and made inquiries from him.
105. In crossexamination by ld. Addl. PP also, he has denied of having made the statement Mark Y to the police. He has further denied that he intentionally not disclosed the complete and true facts, as he has been won over by accused Sushil and Rupesh.
State Vs. Sushil Kumar and Anr. Page 33 of page 39
106. On the other hand, accused has examined Jallaluddin as DW1, who has deposed that on the relevant date, accused Sushil and Rupesh were present at their shop. He has further deposed that in H.No.C100, Jahangirpuri accused persons are residing with their father. The mother of the accused was not residing with them, as she was residing at Adarsh Nagar with her elder son.
107. In crossexamination by ld. Addl. PP nothing has come on record to disbelieve his testimony.
108. It is settled law that the defence witnesses should be given equal treatment as that of prosecution witnesses (See Budh Nath Pandey Vs. State of U.P. AIR 1981 SC 911.
109. Since, all the material witnesses examined by the prosecution have not supported the prosecution story regarding the presence of the accused Sushil and Rupesh at H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar on the relevant date. I am of the considered view that prosecution has miserably failed to prove beyond reasonable doubt that accused Sushil and Rupesh were present in the home, where deceased was raped and murdered. Consequently, Section 106 of the Indian Evidence Act will not be applicable to the facts of the present case.
110. Further, the statement of PW2 Charan Pal, the husband of the prosecutrix that, 20 days prior to her death, his wife told him that accused persons were keeping evil eye upon her will be no help to the prosecution as no police complaint was made by him against the accused State Vs. Sushil Kumar and Anr. Page 34 of page 39 persons, when his wife told the said fact to him. Moreover, he had never seen the accused persons and never visited their house. Thus, the mere statement of PW2 Charan Pal is not sufficient to connect the accused with the commission of offence.
111. Moreover, the FSL Result Ex.PW35/G is also in favour of accused as semen was not detected on the salwar, shirt, brassier, duppatta, vaginal orifice swab and vaginal wall swab of the prosecutrix.
112. Further, as per the Biological Report, Ex.PW34/A, the hair found on the body of the deceased and the head hair, chest hair and Public hair of the accused Sushil and Rupesh were identified to be human in origin but no further opinion was given by PW34, Dr. Indresh Kumar Mishra. In other words, as per the biological report, Ex.PW34/A, there was nothing to suggest that hairs found on the body of deceased/prosecutrix were those of accused Sushil and Rupesh.
113. Thus, after going through the testimony of the witnesses examined by the prosecution, I am of the considered view that prosecution has miserably failed to connect the accused with offence of rape and murder of the prosecutrix and has not been able to prove on record that on 20.09.2005 at unknown time at H.No. C60, First Floor, Rajan Babu Road, Adarsh Nagar they in furtherance of their common intention with coaccused Gajender Mehta ( already acquitted) committed rape upon the prosecutrix and thereafter caused her murder. Accordingly, accused Sushil Kumar and Rupesh @ Rinku are acquitted of the said offences.
State Vs. Sushil Kumar and Anr. Page 35 of page 39
114. Now, I take up the offence u/s. 174A IPC.
115. The relevant witnesses examined by the prosecution in that regard are PW10 ACP Dayanand and PW31 ACP H.S.P. Singh.
116. PW10 is the Second IO of the case, who had arrested the co accused Gajender Mehta (already acquitted). He has deposed in his crossexamination that efforts were made by him for searching the accused persons (Accused Sushil and Rupesh) by sending the police team, but he does not recollect the date on which the said police team was formed. He does not remember as to whether the statements of the public witnesses were recorded. He has further deposed that two days police custody remand of accused Gajender Mehta was taken for searching the accused persons Sushil Kumar and Rupesh. He did not verify the ownership of the H.No. C60, First Floor, Rajan Babu Road, Adarsh Nagar, but has volunteered that the said house belonged to the accused persons. He has denied that both the accused persons were not present at the place of occurrence on 20.09.2005 or that they were not living in H.No.C60, First Floor, Rajan Babu Road, Adarsh Nagar and he did not carry out the fair and complete investigation.
117. In other words, as per the testimony of PW10, accused Sushil Kumar and Rupesh were present at the place of occurrence on the date of incident i.e. on 20.09.2005 and they were living at H.No. C60, First Floor, Rajan Babu Road, Adarsh Nagar. But, the prosecution has miserably failed to proved this fact, as all the material witnesses have not supported the prosecution case about the presence of accused at place of State Vs. Sushil Kumar and Anr. Page 36 of page 39 occurrence.
118. Further, PW31, who is the 3rd IO of the case has deposed that he has obtained the NBWs of both accused Sushil Kumar and Rupesh on 06.12.2005. On 09.12.2005 he filed the chargesheet against coaccused Gajender Mehta. By that time accused Sushil Kumar and Rupesh were not arrested by him. On 12.01.2006, he obtained the process u/s. 82/83 Cr.P.C., against both the accused and got declared them as proclaimed offender.
119. In his crossexamination, he has deposed that he does not remember the number of visits to trace out the accused Sushil Kumar and Rupesh during the period, the investigation of this case remained with him. He has further deposed that he visited the area of Adarsh Nagar and Jahangirpuri to search both the accused persons. He did not apply the concerned Department/Authorities for recording the phone calls of both accused. He visited the house of elder brother of accused Sushil and Rupesh, situated at C100, Jahangirpuri to trace them and requested him to give the mobile number, but he did not inform the mobile number of accused Sushil Kumar and Rupesh to him. He does not know if elder brother of the accused persons as well as other relatives were having the mobile phone of the accused persons at that time, as they did not cooperate the investigation and denied to accept the notice to produce both the accused persons.
120. It is significant to note that the elder brother of accused persons is not residing at C100, Jahangirpuri, and he is the resident of State Vs. Sushil Kumar and Anr. Page 37 of page 39 C60, First Floor, Rajan Babu Road, Adarsh Nagar, as per the chargesheet submitted by the police against coaccused Gajender Mehta, who has already been acquitted in the case. It is worth noting that accused Sushil Kumar and Rupesh are residing at H.No. C100, Jahangirpuri, as per chargesheet submitted by the police and that are not residents of H.No. C60, First Floor, Rajan Babu Road, Adarsh Nagar. No explanation has been furnished by PW31 as to why he did not apply before the concerned department/authority for recording the phone calls of both the accused persons. No explanation has also been furnished by PW31 as to why he did not initiate any proceeding against the brother of accused as well as other relatives, when they did not cooperate in the investigation and refused to accept the notice to produce the accused persons Sushil Kumar and Rupesh @ Rinku. Further, PW31 also did not furnish any explanation as to why he did not record the statements of the persons residing, in the neighbourhood of accused persons.
121. Since, sincere efforts have been made by the Investigation Officers of the case, to trace the accused persons, I am of the considered view that just and fair investigation has not been conducted by the IOs and they got declared both the accused persons as POs without proper investigation.
122. Thus, after going through the testimonies of material witnesses, I am of the considered view that, prosecution has miserably failed to prove its case u/s. 174 IPC against both the accused persons and has not been able to prove that accused Sushil Kumar and Rupesh did not State Vs. Sushil Kumar and Anr. Page 38 of page 39 appear before the court intentionally and deliberately.
123. Accordingly, both accused are acquitted of the offence.
124. The personal bonds and surety bonds of accused hereby cancelled. Their respective sureties are discharged.
125. However, in term of Section 437 (A) Cr.P.C., both accused have furnished fresh personal bonds in the sum of Rs.50,000/ each with one surety of the like amount, which are accepted for a period of six months with the directions to appear before higher court, in the event, they receive any notice of appeal or petition against this judgment.
126. File be consigned to record room.
Announced in the open Court (Bimla Kumari)
on day of 09th Sept., 2016 ASJ: Spl. FTC (North)
Rohini Courts : Delhi
State Vs. Sushil Kumar and Anr. Page 39 of page 39