Delhi District Court
Mohmed Inayatullah vs The State Of Maharashtra: Air (1976) on 29 July, 2022
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010005222014
SC No. 432/2016
FIR No. 426/2013
U/s. 302/392/397/411/34 IPC
P.S. Gandhi Nagar
In the matter of :
State
versus
1) Mohd. Shahid,
S/o Mohd. Nanhe Khan,
R/o H.No. 4005, Gali No. 17,
Ajeet Nagar, Gandhi Nagar, Delhi.
2) Sunny @ Nepali,
S/o Sh. Gule Ram,
R/o H.No. 4149, Gali No. 12,
Ajeet Nagar, Gandhi Nagar, Delhi.
Date of Institution : 25.02.2014
Date of reserving Judgment : 23.07.2022
Date of pronouncement : 29.07.2022
SC No. 432/2016 Page 1 of 66 ASJ04(East)/KKD Courts/Delhi
Appearances
For the State : Sh. Rakesh Mehta,
Additional Public Prosecutor.
For both accused persons : Sh. Mohd. Hasan,
Amicus Curie for both
accused persons.
JUDGMENT
1) Briefly stated facts in the present case are that on 15.11.2013, PCR call was received by W/Ct. Nandani from mobile phone no. 9717698796 that one person was lying unconscious and was bleeding from his mouth, regarding which she filled up PCR form Ex. PW8/A. The information was received at PS Gandhi Nagar at 7.32 a.m by HC Gajender Singh, Duty Officer, that one person was lying unconscious in front of H.No. 3465, Gali No.3, near Deepak Jewellery Shop, Gyan Mohalla, Gandhi Nagar, Delhi and blood was oozing out from his mouth and nose. The information was received vide PCR call and DD No. 8A Ex. PW13/A was recorded in this regard and the said DD entry was marked to SI Harun Khan. Const. Bhupender handed over DD No. 8A to SI Harun Khan at the spot on instructions of the Duty Officer. SI Harun Khan reached the spot with Ct.Sombir. Insp. Sanjay Sinha also proceeded for the spot alongwith SI Kulbir and SI C.P.Singh at about 07.45 am vide DD No. 10A and found the other police officials present there. At the spot dead body of a male person SC No. 432/2016 Page 2 of 66 ASJ04(East)/KKD Courts/Delhi was found lying having injuries on face, chest and stomach. There were public persons present at the spot. One person namely Noton Kumar Sarkar came and identified the dead body being of his brother Pavitra Kumar Sarkar. One slipper of right foot on which 'Milano' was written was found near the dead body. One pink colour handkerchief was also found near the dead body. There was a blood trail from H. No. 3465, Gali No. 3, Gyan Mohalla to corner of Gali No. 1, Gyan Mohalla and Jain Mohalla. One slipper of left foot on which 'Milano' was written was found in front of shop no. 9/3535. Both the aforesaid slippers were found to be identical to each other. Crime Team was called and photographs were taken. Police seized the exhibits from the spot and the case property was subsequently deposited in the malkhana. Statements of Noton Kumar Sarkar, Rabindro Chandro Dass @ Robin, Binoy Burman and Montu Burman were recorded by the police. According to the statements of these witnesses, the deceased was carrying a purse containing copy of his voter ID card , his photograph and some cash. He was also carrying a mobile phone of red colour. The said articles were found missing upon search of the dead body. The mobile phone number 9818606954 of the deceased was provided to the police. Further investigation was conducted and the dead body was taken to SDN Hospital and was kept in the mortuary. The case was registered u/s 302 IPC vide FIR No. 426/2013 on 15.11.2013 at PS Gandhi Nagar. SC No. 432/2016 Page 3 of 66 ASJ04(East)/KKD Courts/Delhi
2) On 16.11.2013 the body of the deceased was taken to Subzi Mandi Mortuary for conducting the postmortem. After postmortem, the dead body was handed over to brother of the deceased Noton Kumar Sarkar. After the postmortem, the doctor handed over sealed exhibits to the police, which were seized by the IO and subsequently deposited in the malkhana.
3) On 17.11.2013 upon information received from the secret informer, that one of the accused of the present case could be found at Gali No. 12, Ajeet Nagar, Gandhi Nagar, Delhi, accused Sunny @ Nepali was apprehended from there upon identification of the secret informer. He was interrogated and arrested and his personal search was conducted. His disclosure statement was recorded. Accused Sunny @ Nepali in pursuance of his disclosure statement led the police to his house and got recovered a knife i.e. weapon of offence from the ground floor of his house under the stairs, near the corner of toilet. The said knife had blood stains on it. A sketch of the knife was prepared by the IO and was seized. Thereafter accused Sunny @ Nepali got recovered mobile phone of the deceased from the almirah made in the wall of a room. The mobile phone was red, black and silver in colour. The mobile phone was found containing SIM of Airtel company. After SC No. 432/2016 Page 4 of 66 ASJ04(East)/KKD Courts/Delhi checking the IMEI number of the mobile phone, the same was seized by the IO. Thereafter accused Sunny @ Nepali had got recovered his blood stained clothes i.e. one white colour pant, one black colour shirt and one Khakhi colour jersey from the room on ground floor stating that he was wearing the said clothes at the time of incident. The said clothes were seized by the IO. Site plan of the place of recovery of knife, mobile phone and clothes of accused Sunny @ Nepali was prepared by the IO. The accused also pointed out the place of incident to the police.
4) At the instance of accused Sunny @ Nepali, the police reached H.No. 4005, Gali No. 17, Ajeet Nagar, Gandhi Nagar, Delhi, from where coaccused Shahid was apprehended at the pointing of accused Sunny @ Nepali and who stated that Shahid was involved in the incident dated 15.11.2013 alongwith him. Shahid was interrogated and thereafter arrested. His personal search was conducted and his disclosure statement was recorded. In pursuance to his disclosure statement, accused Shahid got recovered one black colour purse belonging to the deceased from 'Chajja'/loft of his house, which was robbed from the deceased. Copy of voter ID card of deceased, one photograph of deceased were found inside the purse. The said purse was seized by the IO. The accused Mohd. Shahid also got recovered his SC No. 432/2016 Page 5 of 66 ASJ04(East)/KKD Courts/Delhi blood stained clothes i.e. one blue jeans pant and one yellow colour jersey from the aforesaid 'chajja'/loft stating that he was wearing the said clothes at the time of incident. The IO prepared site plan of the place of recovery of purse and the clothes, which were recovered at the instance of accused Mohd. Shahid, who also pointed out the place of incident to the police. The case property was deposited in the malkhana.
5) The postmortem report revealed that the cause of death was Hemorrhagic shock due to antemortem stab injury to chest and abdomen and sufficient to cause death in ordinary course of nature individually and collectively both. All injuries were antemortem in nature and fresh in duration. Injury No. (1) and (2) were caused by single pointed sharp edge weapon. Time since death was about 24 to 36 hours.
6) The exhibits were sent to FSL Rohini for their evaluation and analysis. After completion of necessary investigation, charge sheet was filed against accused Sunny @ Nepali and Shahid u/s 302/392/397/411/34 IPC.
7) On the basis of chargesheet and the documents submitted SC No. 432/2016 Page 6 of 66 ASJ04(East)/KKD Courts/Delhi with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 302/392/397/411/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 20.02.2014 committed the case to the Court of Session for 25.02.2014.
Charge :
8) On 11.03.2014 after hearing the learned Additional Public Prosecutor for the State and the Amicus Curie for both the accused persons, charge was framed against both the accused persons for commission of offences punishable under Section 392/302/34 IPC. The charge so framed was read over and explained to all the accused persons to which they did not plead guilty and claimed trial.
9) Vide order dated 13.07.2022, additional charge for the offence u/s 411 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
Prosecution Evidence :
10) In order to prove its case, the prosecution examined following witnesses:
SC No. 432/2016 Page 7 of 66 ASJ04(East)/KKD Courts/Delhi
i) PW1 Insp. Mahesh Kumar - Draftsman of Crime Branch, PHQ. He prepared the scaled site plan vide Ex. PW1/A.
(ii) PW2 Montu Verman, who deposed that Pavitra Sarkar, his brotherinlaw, was residing in Gali No. 19, Ajeet Nagar, Gandhi Nagar, Delhi, and was working as a tailor at Ghas Mandi and his younger brother Noton Kumar Sarkar was residing at Dharmapura, Gandhi Nagar, Delhi. On 15.11.2013 he was present at his home at Gali No. 5, Dharampura, Gandhi Nagar, Delhi and Noton Kumar called him on telephone and informed that Pavitra Sarkar had been murdered and his dead body was lying in Gali No. 3, Gyan Mohalla, Gandhi Nagar, Delhi.
He rushed there and saw the dead body of Pavitra Sarkar lying there in a pool of blood. He stated that the mobile number of Pavitra Sarkar was 9818606954. He also deposed that on 16.11.2013 he went to Subzi Mandi Mortuary where he identified the dead body of Pavitra Sarkar vide Ex. PW2/A.
(iii) PW3 Dr. S.Lal, Specialist Forensic Medicine, Subzi Mandi Mortuary, Delhi. He conducted postmortem on the dead body of deceased Pavitra Kumar Sarkar vide his postmortem report Ex. PW3/A. After seeing the viscera report of the deceased vide FSL report no. SC No. 432/2016 Page 8 of 66 ASJ04(East)/KKD Courts/Delhi 2013/C9256 which gave negative test for common poisons as mentioned in the FSL result Ex. C2, he opined that the deceased was not under the influence of any intoxication at the time of death.
On 14.06.2022 upon an application received from SI Sumit Kumar alongwith sealed parcel containing weapon of offence i.e. knife, PW3 prepared a detailed diagrammatic presentation of knife vide Ex. PW3/B. After going through the postmortem report finding and examination of weapon of offence i.e. knife, he opined that the injuries mentioned at Point No. 1 and 2 could be possible to be produced by the weapon of offence i.e. knife produced before him for examination. The subsequent opinion is Ex. PW3/C.
(iv) PW4 Dr. Sudhanshu Shekhar, who declared the patient Pavitra Sarkar as brought dead vide MLC Ex. PW4/A.
(v) PW5 Praveen Kumar, who deposed that on 15.11.2013 at about 7.007.15 a.m, PW5 was going to drop his son at his school. He came out of his house, he saw a man lying in the street smeared with the blood, near entrance gate of his house. The said man was in unconscious condition. PW5 made a call at 100 number from his mobile phone no. 9717698796. He was using the said SIM in his SC No. 432/2016 Page 9 of 66 ASJ04(East)/KKD Courts/Delhi mobile number which was in the name of his sister Sonia Verma for the past 67 years.
(vi) PW6 Incharge Crime Team, SI Karamveer inspected the scene of crime and prepared the report Ex. PW24/H. A dead body was lying on the spot smeared in blood. Photographs taken by the Photographer Ct. Vikas.
(vii) PW7 Chander Shekhar, Nodal Officer Bharti Airtel Ltd. produced the Customer Application Form (CAF) of mobile no. 9818606954 which was stated to be in the name of Pavitra Kumar Sarkar. The certified copy of the CAF alongwith Voter Icard is Ex. PW7/A (Colly.). The CDR of the said mobile number for the period from 13.11.2013 to 15.11.2013 is Ex. PW7/B. The Cell ID Chart is Ex. PW7/C. The certificate u/s 65 B Evidence Act in support of the above said documents is Ex. PW7/D.
(viii) PW8 W/Ct. Nandini deposed that at about 7.25 a.m, she received a call from mobile no. 9717698796 that near Deepak Jewellery Shop, Gurudwara Wali Gali, Gyan Mohalla house no. 3465, one person was lying unconscious who was bleeding from his mouth. She dispatched the information on net and filled up the PCR form Ex. SC No. 432/2016 Page 10 of 66 ASJ04(East)/KKD Courts/Delhi PW8/A. The concerned PCR R27 was also informed in the area of Gandhi Nagar.
(ix) PW9 Ct. Abhishek Pandey deposed that on 13.12.2013, he collected 13 sealed parcels alongwith sample seals and FSL form and deposited the same with FSL, Rohini vide RC No. 145/21/13. The receipt obtained by him was handed over to the MHC(M). The exhibits were not tampered with under his supervision.
(x) PW10 Noton Kumar Sarkar, brother of the deceased deposed that at the time of incident, he used to reside in House no. 3286, Gali No.7, Dharampura and used to do stitching work at Gandhi Nagar. Deceased Pavitra Kumar Sarkar was his real brother and he used to live in house no. 4109, Gali No. 19, Ajeet Nagar alongwith his friends PW12 Binoy Barman and PW11 Ravindro Chandra Dass and that the deceased used to do iron work at Ghas Mandi, Gandhi Nagar. He further deposed that on 15.11.2013 at about 7.30 a.m, he was present at his room and he came to know that one person had been murdered in Gali No.3, Gyan Mohalla and dead body was lying there. He also went there and saw one person was lying in pool of blood. When he came near the body, he saw that the dead body was of his brother Pavitra Kumar Sarkar. He identified the dead body of his brother. He also deposed that a right foot SC No. 432/2016 Page 11 of 66 ASJ04(East)/KKD Courts/Delhi slippers of the deceased was found near the dead body and a handkerchief (Ex. P5) was also found near the dead body. It was deposed by him that there were blood stains on the right foot chappal and handkerchief of his brother which was lying on the spot. Both the articles were seized by the IO vide Seizure Memo Ex. PW10/B. One left foot slipper (Ex.P3) was found in front of shop no. 3535. Both the slippers were identical to each other. Left foot slipper was seized vide Seizure Memo Ex. PW10/A. He further deposed that the police officials lifted blood lying on the spot and also lifted blood stained earth control and seized the same vide Seizue Memo Ex. PW10/C. He further deposed that blood lying near the spot was also seized and blood stained earth control from near the spot was also seized in a sealed condition vide Seizure Memo Ex. PW10/D. He deposed that the place of incident was got photographed. Dead body of his brother was sent to mortuary. He called friends of his brother namely Robin and Binoy at the spot.
He deposed that his brother used to keep a mobile phone of red colour make china in his pocket and he used to keep a purse containing photostat copy of his voter ID card and photos. Same were missing from the pockets of his brother. Police officials made inquiries from him. He did not remember the mobile number of his deceased SC No. 432/2016 Page 12 of 66 ASJ04(East)/KKD Courts/Delhi brother, however, he stated that its last two digits were ....54.
He also stated that on 16.10.2013, he identified the dead body of his deceased brother at the mortuary, Sabzi Mandi vide the Identification Statement Ex. PW10/E. IO filled up form 25.35 (1) (B) Ex. PW24/C. After postmortem, the dead body of the deceased was handed over to PW10 vide his receipt Ex. PW10/F. He identified the mobile phone of china make of red colour as Ex. P6 to be the same mobile phone which belonged to the deceased and was missing at the time of recovery of his dead body. He also identified one black colour purse belonging to deceased which contained photocopy of Voter ICard, one photo of the deceased. The said purse was identified to be the purse of the deceased as Ex. P2.
(xi) PW11 Ravindro Chandra Das @ Robin and PW12 Binoy Burman deposed that at the time of incident, they alongwith the deceased Pavitra Sarkar used to reside in a tenanted premises at house no. 4109, Gali No. 19, Ajeet Nagar, Gandhi Nagar, Delhi. They were doing stitching work in Gandhi Nagar. Deceased Pavitra Kumar Sarkar was doing the work of iron in Ghas Mandi, Gandhi Nagar. On 15.11.2013 at about 6.006.30 a.m, Pavitra Kumar Sarkar left the room SC No. 432/2016 Page 13 of 66 ASJ04(East)/KKD Courts/Delhi for his work. His brother Noton Kumar Sarkar PW10 used to reside at Dharampura. At about 7.007.30 a.m, PW10 informed PW11 & PW12 telephonically that his brother Pavitra Kumar Sarkar had been murdered and his dead body was lying at Gali No. 3, Gyam Mohalla in a pool of blood. Upon hearing the same, PW11 alongwith Binoy Burman PW12 went to the spot where the dead body of Pavitra Kumar Sarkar was lying. They further deposed that the deceased Pavitra Kumar Sarkar used to keep a mobile phone of red colour of China make bearing mobile number 9818606954 and a purse containing money, photocopy of voter Icard and a photo. The said articles were missing from the pocket of the deceased Pavitra Kumar Sarkar. PW11 and PW12 identified the purse of the deceased containing the articles as Ex. P2 and also identified the mobile phone of the deceased Ex. P6 to be belonging to the deceased and missing at the time of recovery of his dead body.
(xii) PW13 HC Gajender deposed that he was working as Duty Officer at PS Gandhi Nagar. At about 7.32 a.m, he received a call from Control Room that a man was lying unconscious at house no. 3465, Gali No. 3, Gyan Mohalla, Near Deepak Jewellery Shop, Gurudwara Wali Gali and the said information was recorded in DD No. 8A vide Ex. PW13/A. SC No. 432/2016 Page 14 of 66 ASJ04(East)/KKD Courts/Delhi
(xiii) PW14 SI Harun deposed that on 15.11.2013 DD No. 8A was marked to him. He reached at the spot where he met Praveen Kumar Sharma, caller of the DD. At the spot one dead body was lying in a pool of blood having injuries on several parties of his body. Ct. Bhupender reached at the spot with DD No. 8A and handed it over to him. Insp. Sanjay Sinha, SI C.P.Singh and SI Kuldeep Singh reached there. SHO also reached there. The police team inspected the spot. One blood stained slipper and handkerchief were found near the dead body. There was a blood trail from the spot going towards Jain Mohalla which was about 100 meters from the place of occurrence. Another slipper was found lying in Gali No. 1, Jain Mohalla. Crime Team was called and inspected the spot. Police seized the exhibits from the spot vide seizure memos. PW14 alongwith Const. Sombir took the dead body to SDN Hospital and the MLC of the deceased was prepared. PW14 moved an application Ex. PW14/A to preserve the dead body. Const. Sombir was deputed outside Subzi Mandi Mortuary, if postmortem was conducted on the dead body of the deceased.
(xiv) PW15 HC Lokender deposed that on the intervening night of 14/15.11.2013, he was posted at PCR East Zone at Romeo 27 as Incharge PCR. On 15.11.2013 at about 7.30 a.m, a call was received SC No. 432/2016 Page 15 of 66 ASJ04(East)/KKD Courts/Delhi regarding a person lying unconscious bleeding from his mouth at Gali No. 3, Gyan Mohalla near Jwellery Shop, Gurudwara Wali Gali. He reached the spot alongwith staff. Upon reaching there, he found a person lying with blood stained clothes having injury marks on his stomach, chest and face. In the street, the blood marks were present and were making a trail of about 100150 meters and the person appeared to be dead. IO reached at the spot. He informed the Control Room and left the spot alongwith PCR van.
(xv) PW16 Const. Vikas deposed that he alongwith Incharge Crime Team SI Karamveer reached the spot and he took photographs at the instance of Incharge Crime Team. He proved the photographs as Ex. PW16/A1 to Ex. PW16/A19 and their negatives as Ex. PW16/B1 to Ex. PW16/B19.
(xvi) PW17 HC Umesh Kumar deposed that at about 01.00 pm on 15.11.2013 Const. Bhupender produced rukka of the case, on the basis of which he registered the FIR Ex. PW17/A. He made an endorsement on the Rukka Ex. PW17/B. The copy of the FIR and rukka were sent to IO through Const. Bhupender.
(xvii) PW18 Const. Anuj Yadav, who delivered copy of the FIR SC No. 432/2016 Page 16 of 66 ASJ04(East)/KKD Courts/Delhi to Ld. Duty M.M. and office of DCP and Joint CP.
(xviii) PW19 Const. Bhupender deposed that he reached the spot and handed over the DD No. 8A to SI Harun Khan where Const. Sombir was also present. Insp. Sanjay Sinha, SI Kulbir and SI C.P.Singh also reached at the spot. SHO Insp. Manoj Pant reached there with his staff. Insp. Sanjay Sinha prepared a rukka and handed over to him for registration of FIR. He went to PS Gandhi Nagar and handed over the same to Duty Officer for registration of the FIR. After registration of the FIR, he returned to the spot and handed copy of the FIR and rukka to Insp. Sanjay Sinha.
(xix) PW20 Const. Deep Chand deposed that on 17.11.2013 he joined investigation with the IO Insp. Sanjay Sinha, SI Kulbeer and Ct. Kailash. Upon information of the secret informer, accused Sunny @ Nepali was apprehended by the IO Insp. Sanjay Sinha from Gali No. 12, Ajeet Nagar, Gandhi Nagar, Delhi, near the gate of the house no. 4149. The arrest memo of accused Sunny @ Nepali is Ex. PW20/A and his personal search memo is Ex. PW20/B. Disclosure statement of the accused Sunny @ Nepali was recorded by the IO vide Ex. PW20/C. Accused Sunny @ Nepali led the police to his house and got recovered a knife i.e. weapon of offence from the ground floor of his house under SC No. 432/2016 Page 17 of 66 ASJ04(East)/KKD Courts/Delhi the stairs near the corner of toilet and disclosed that he used the knife in the incident. The said knife was having blood stains. The sketch of the said knife was prepared by the IO vide Ex. PW20/D. The knife was kept in a sealed pulanda and was seized vide Seizure memo Ex. PW20/E. The knife was identified by him vide Ex. P1. Accused Sunny @ Nepali also got recovered the mobile phone of the deceased from a shelf without door fixed in the wall of a room. He disclosed that he had robbed the mobile phone in the incident. The mobile phone was of red, black and silver colour. The IMEI of the phone was checked. The phone was found to contain the SIM of Airtel company. The said phone was seized vide Seizure Memo Ex. PW20/F. The mobile phone was identified by him vide Ex. P6. Accused Sunny @ Nepali also got recovered his blood stained clothes i.e. one white colour pant, one black colour shirt, one Khaki colour Jersy from the corner of the room on the ground floor. He disclosed that he was wearing the said clothes at the time of incident. The clothes were seized vide Seizure Memo Ex. PW20/G. The said clothes were identified by him vide Ex. PX(Colly).
Thereafter, at the instance of accused Sunny @ Nepali, they reached at house no. 4005, Gali No. 17, Ajeet Nagar, Gandhi Nagar, Delhi and at the pointing out of accused Sunny @ Nepali accused Mohd. Shahid was apprehended. IO interrogated the accused Mohd. SC No. 432/2016 Page 18 of 66 ASJ04(East)/KKD Courts/Delhi Shahid and recorded his disclosure statement Ex. PW20/H. Accused Mohd. Shahid produced one black colour purse, which was robbed in the said incident, from the 'Chhajja'/loft situated on a room at ground floor. The purse contained photocopy of Voter ICard, one passport size colour photo of the deceased. The same seized by the IO vide Seizure Memo Ex. PW20/I. The said purse was identified by him vide Ex. P2. From the said place accused Mohd. Shahid also produced one jersey of yellow colour and one blue colour jeans pant, which were worn by him at the time of incident. IO seized the same vide seizure memo Ex. PW20/J. The said clothes were identified by him vide Ex. PY(Colly). Thereafter both the accused persons led the police team to the spot and pointed out the spot. IO prepared pointing out memo of accused Mohd. Shahid vide Ex. PW20/K. (xx) PW21 SI Kulbir Singh deposed that on 15.11.2013 at about 07.40 am on receipt of DD No. 10A, he joined investigation with SI C.P.Singh and Insp. Sanjay Sinha. They reached near House No. 3465, Gali No. 3, Gyan Mohalla, Gandhi Nagar, Delhi. SI Harun Khan, Ct. Somvir and Const. Bhupender were already present there. At the spot one dead body was lying. SHO also reached there. Crime Team was called at the spot, which inspected the site and took photographs of the scene of crime including dead body. Face and clothes of dead body SC No. 432/2016 Page 19 of 66 ASJ04(East)/KKD Courts/Delhi were all found smeared with blood. One Noton Sarkar identified the dead body as of his brother Pavitra Sarkat. One blood stained slipper of right foot and pink colour handkerchief were found near the dead body. The blood stains were found upto a distance of about 100 meters till gali no. 1 of Gyan Mohalla. Another slipper was found lying in front of shop no. 3535, Gali No. 1, Gyan Mohalla. IO/Insp. Sanjay Sinha seized the exhibits from the spot vide seizure memo Ex. PW10/A, PW10/B, PW10/C & PW10/D. The dead body was sent to SDN Hospital through SI Harun Khan and Ct. Somvir. IO prepared rukka and got the FIR registered through Ct. Bhupender.
PW21 also deposed that on 17.11.2013 he again joined investigation of this case alongwith Insp. Sanjay Sinha. On that day IO received secret information regarding presence of accused in H.No. 4149, Gali No. 12, Ajit Nagar, Gandhi Nagar, Delhi, and the IO shared this information with his team whereafter he alongwith the IO, Ct. Deep Chand and Const. Kailash and secret informer reached Ajit Nagar Pulia. IO requested 34 passersby to join investigation of the case, however, none agreed and they went away without disclosing their names and addresses. Thereafter at about 03.40 pm they reached H.No. 4149, Gali No. 12, Ajit Nagar, Gandhi Nagar, Delhi. The secret informer pointed towards one person sitting inside the house and told SC No. 432/2016 Page 20 of 66 ASJ04(East)/KKD Courts/Delhi them that he is Sunny @ Nepali and thereafter the secret informer went away. He alongwith the police team went inside the said house and after seeing police, that person tried to flee away, however, accused Sunny @ Nepali was apprehended by them and on inquiry he disclosed his name to be Sunny @ Nepali. IO interrogated the accused upon which he admitted his involvement in this case. Thereafter accused was arrested by the IO vide arrest memo Ex. PW20/A and his personal search was conducted vide personal search memo Ex. PW20/B. On interrogation accused gave disclosure statement Ex. PW20/C. In pursuance of his disclosure, accused led them to the corner of toilet made under the staircase on the ground floor of his house and after lifting one knife, produced the same before the IO. The said knife was checked and measured by the IO with the help of scale. The sketch of the knife was prepared on a plain paper Ex. PW20/D. On measurement total length of knife was came out to be 30 cm, handle 13.5 cm and blade 16.5 cm. The width of the blade was found to be 3.5 cm. The knife was made of steel like metal and handle was made of plastic. The said knife was seized vide seizure memo Ex. PW20/E. Thereafter accused Sunny @ Nepali led them to a room made on ground floor of that house and after opening the almirah made in one of the wall in that room, took out one mobile phone colour redblack & silver. IO checked the same and mobile phone was found having Airtel SIM card and the SC No. 432/2016 Page 21 of 66 ASJ04(East)/KKD Courts/Delhi mobile phone was seized vide seizure memo Ex. PW20/F. Thereafter accused Sunny @ Nepali picked clothes i.e. pant, shirt and jersey like jacket lying in a corner of that room and produced the same before the IO and IO seized the same vide seizure memo Ex. PW20/G. Thereafter he alongwith IO/Insp. Sanjay Kumar Sinha, Ct. Deep Chand, Ct. Kailash and accused Sunny @ Nepali and recovered case property, went to H.No. 4005, Gali No. 17, Ajeet Nagar, to the house of accused Mohd. Shahid, in pursuant to disclosure statement of accused Sunny @ Nepali. In the house accused Mohd. Shahid was present and he was identified by accused Sunny @ Nepali. IO interrogated accused Mohd. Shahid, who disclosed his involvement in the incident. Accused Mohd. Shahid was arrested vide memo Ex. PW21/A1 and his personal search was conducted vide memo Ex. PW21/A2. IO recorded disclosure statement of accused Mohd. Shahid Ex. PW20/H. Accused produced from his possession the purse of the deceased from the shelf/chajja in the room of his house, which was checked and it found containing Voter ICard and photograph of deceased and said purse was seized vide memo Ex. PW20/I. The said purse was identified by him vide Ex. P2. The clothes of the accused, SC No. 432/2016 Page 22 of 66 ASJ04(East)/KKD Courts/Delhi which he was wearing at the time of incident, i.e. one yellow colour jersey and one blue colour jeans pant, were also recovered and IO seized the same vide memo Ex. PW20/J. The said clothes were identified by him vide Ex. PY(colly). IO had also prepared the site plans of place of recovery from both the accused persons. Thereafter, at the instance of accused Sunny, he alongwith Ct. Kailash and IO went to the spot i.e. shop no. 3535, Jain Mohalla Gali Corner and pointing out memo Ex. PW21/A3 was prepared. He alongwith Ct. Deep Chand, IO also went to the spot again i.e. shop no. 3535, Jain Mahalla Gali Corner and at the instance of accused Mohd. Shahid pointing out memo Ex. PW20/K was prepared. Thereafter they returned to the police station and IO deposited case property in the malkhana.
(xxi) PW22 Const. Somveer also deposed on the same lines as deposed by PW14 SI Harun Khan. He further stated that on 16.11.2013 Insp. Sanjay Kumar and SI C.P.Singh had also reached the mortuary for post mortem of the deceased. IO prepared the inquest papers the the dead body was identified by brother of deceased Nutan Kumar and post mortem of deceased was conducted. After conducting postmortem, the dead body was handed over to his family members. After post mortem doctor had handed over the sealed exhibits, which were seized by IO vide seizure memo Ex. PW22/A. IO deposited the sealed exhibits in the SC No. 432/2016 Page 23 of 66 ASJ04(East)/KKD Courts/Delhi malkhana.
(xxii) PW23 ASI Sushil Kumar deposed that on 15.11.2013 he was on duty as MHC(M). On that day Insp. Sanjay Kumar Sinha deposited seven sealed pulandas sealed with the seal of SS and he made entry in register no. 19 at serial no. 2744 vide Ex. PW23/A. On 16.11.2013 Insp. Sanjay Kumar Sinha had deposited in malkhana four sealed exhibits alongwith four sample seals and he made entry in register no. 19 at serial no. 2745 vide Ex. PW23/B. On 17.11.2013 Insp. Sanjay Kumar Sinha had deposited in malkhana five sealed parcels and he made entry in register no. 19 at serial no. 2746 vide Ex. PW23/C. On 13.12.2013, he sent one sealed exhibit stated to be containing viscera alongwith one sample seal to FSL, Rohini through Ct. Abhishek Pandey vide RC No. 144/21/13 Ex. PW23/D and after depositing the exhibits and sample seals, Ct. Abhishek returned to Police Station and handed over the acknowledgment Ex. PW23/E to him. On the same day, he sent 13 sealed exhibits alongwith three sample seals to FSL, Rohini through Ct. Abhishek Pandey vide RC No. 145/21/13 Ex. PW23/F and after depositing the exhibits and sample seals, Ct. Abhishek returned to Police Station and handed over the acknowledgment Ex.PW23/G. (xxiii) PW24 Insp. Sanjay Sinha was the IO of the case. He SC No. 432/2016 Page 24 of 66 ASJ04(East)/KKD Courts/Delhi deposed regarding the investigation conducted by him in this case. He proceeded to the spot upon direction of the SHO alongwith SI Kulbir and SI C.P.Singh at about 07.45 am vide DD No. 10A. He reached the spot where they found dead body of a male with injuries on his face, chest and abdomen and was smeared with blood. Crime Team was called, photographs were taken. Exhibits were lifted from the spot vide Ex. PW10/A to Ex. PW10/D. The dead body of deceased was shifted to SDN Hospital mortuary. He also deposed that he made endorsement on DD No. 8A, prepared a rukka Ex. PW24/A and got the FIR registered through Ct. Bhupender. He inspected the place of incident and prepared unscaled site plan Ex. PW24/B. The case property was deposited in the malkhana. The statements of witnesses were recorded.
On 16.11.2013 he alongwith SI C.P.Singh reached at the mortuary Aruna Asaf Ali Hospital for postmortem of dead body. The dead body was identified by the brother of the deceased and Montu Burman vide Ex. PW10/E and PW2/A respectively. He filled up Form 25.35(1)(B) Ex. PW24/C. The dead body was handed over to the brother of the deceased vide Ex. PW10/F. Exhbits of the deceased after the postmortem were seized vide seizure memo Ex. PW22/A. The exhibits were deposited in the malkhana.
SC No. 432/2016 Page 25 of 66 ASJ04(East)/KKD Courts/Delhi On 17.11.2013 a secret informer informed that one of the accused of present case could be found in Gali No. 12, Ajit Nagar, Gandhi Nagar, Delhi. Thereafter he alongwith SI Kulbir, Ct. Deep Chand and Ct. Kailash alongwith secret informer proceeded from the police station and reached in Gali no. 12, Ajit Nagar, Gandhi Nagar, Delhi. He requested 34 public persons to join the investigation but none of them joined and left the spot after showing their genuine ground and without disclosing their identity. Thereafter, he conducted raid and on the identification of secret informer, they apprehended one person standing near gate of house no. 4149. On enquiry, his name was revealed as Sunny @ Nepali. He interrogated Sunny @ Nepali and thereafter arrested him vide memo Ex. PW20/A, conducted his personal search vide memo Ex. PW20/B and recorded his disclosure statement Ex. PW20/C. In pursuance of his disclosure statement, accused Sunny @ Nepali led them to his house and got recovered a knife i.e. weapon of offence from the ground floor of his house under the stairs near the corner of toilet by stating that the said knife was used in the offence. The said knife was having blood stains. IO prepared sketch of knife Ex. PW20/D and seized the knife vide memo Ex.PW20/E. After recovery of knife, accused Sunny @ Nepali got recovered the mobile phone of the deceased from the almirah made in a wall of a room. The mobile phone was of red, black and silver colour. The IMEI number of the phone was SC No. 432/2016 Page 26 of 66 ASJ04(East)/KKD Courts/Delhi checked and it found containing SIM of Airtel company and mobile phone was seized vide memo Ex. PW20/F. Thereafter accused Sunny @ Nepali got recovered his blood stained clothes i.e. one white colour pant, one black colour shirt and one khakhi colour jersey from the room on the ground floor disclosing that he was wearing the said clothes at the time of incident and same were seized vide seizure memo Ex. PW20/C. He prepared site plan Ex. PW24/D in respect of place of recoveries of knife, mobile phone and clothes of accused Sunny @ Nepali. Accused Sunny @ Nepali pointed out the place of incident vide pointing out memo Ex. PW21/A3.
Thereafter at the instance of accused Sunny @ Nepali they reached at H.No. 4005, Gali No. 17, Ajeet Nagar, Delhi, where one person was found standing near the gate of the house. Accused Sunny@ Nepali pointed towards the said person stating that he is the coaccused Shahid, who was involved in the incident dated 15.11.2013 with him. Accused Mohd. Shahid was apprehended and interrogated and thereafter he was arrested vide memo Ex. PW21/A1 and his personal search was conducted vide memo Ex. PW21/A2. IO recorded disclosure statement of accused Mohd. Shahid Ex. PW20/H. Accused Shahid got recovered on black colour purse, which was robbed from the deceased from the chhajja of his house. On search of purse, photocopy of Voter ICard and SC No. 432/2016 Page 27 of 66 ASJ04(East)/KKD Courts/Delhi one photograph of decease were found inside the pursue and said purse was seized vide memo Ex. PW20/I. From the said Chhajja accused Mohd. Shahid also got recovered his blood stained clothes i.e. one blue colour jeans pant and one yellow colour jersey by stating that at the time of incident he was wearing the said clothes and same were seized vide seizure memo Ex. PW20/J. He prepared the site plans of place of recovery of purse and clothes recovered at the instance of accused Mohd. Shahid Ex. PW24/E. Accused Mohd. Shahid pointed out the place of incident vide pointing out memo Ex. PW20/K. Thereafter he alongwith SI Kulbeer, Ct. Deep Chand, Ct. Kailash and both accused returned to the police station and he deposited case property in the malkhana.
This witness also deposed about other investigation conducted by him in this case. He further deposed that on 27.01.2014 he moved an application for conducting TIP of the case property i.e. purse and mobile phone vide Ex. PW24/F. He also moved an application for obtaining copy of TIP proceedings Ex. PW24/G. SI Karamveer gave SOC report Ex. PW24/H. He also identified both the accused persons and case property in the court.
SC No. 432/2016 Page 28 of 66 ASJ04(East)/KKD Courts/Delhi Statement of accused persons :
11) After conclusion of prosecution evidence, on 30.04.2022 statements of both the accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they are innocent and have been falsely implicated in this case by the police to solve blind murder case. They pleaded that nothing was recovered either from their possession or at their instance and recoveries have been falsely planted upon them by the police. Both the accused persons did not prefer to lead defence evidence.
12) I have heard the counsels for the parties and perused the record.
13) Perusal of the testimony of the prosecution witnesses reveals that none of the witnesses had witnessed the incident themselves. PW5 made a call at 100 no. from his mobile phone. He had seen a man lying on the street smeared in blood near the entrance gate of his house. The man was lying in unconscious condition. He made a 100 No. call from his mobile phone.
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14) PW10 Noton Kumar Sarkar, the real brother of the deceased was informed about the incident at 7:30 AM on 15/11/2013 when he was present at his room and he came to know that one person had been murdered at Street No. 3, Gyan Mohalla and the dead body was lying there. He went there and saw a huge crowd. He saw a person lying in a pool of blood and when he came near the body he saw it was the dead body of his brother Pavitra Kumar Sarkar. He identified the dead body of his brother.
15) PW11 and pW12 used to reside along with the deceased at tenanted premises at house No. 4109, Street No. 19, Gandhi Nagar, Delhi. They deposed that on 15.11.2013 at about 06.00 06.30 am deceased Pavitra Kumar Sarkar left the room for his work. At about 07.00 - 07.30 am they were informed by the brother of deceased, Noton Kumar Sarkar that his brother, Pavitra Kumar Sarkar had been murdered and his dead body was lying at Street No. 3, Gyan Mohalla in a pool of blood. Upon receipt of the said information, they went to the spot where the dead body was lying.
16) PW10, PW11 and PW12 also deposed that the deceased used to keep a mobile phone of China make, red colour bearing Mobile No. 9818606954 and a purse containing money, photostate copy of SC No. 432/2016 Page 30 of 66 ASJ04(East)/KKD Courts/Delhi voter I card and a photo. They said that the above said articles were missing from the pockets of the deceased Pavitra Kumar Sarkar at the time of recovery of his dead body.
17) The said witnesses identified the phone of China make, red colour to be the same which belonged to the deceased and was missing at the time of recovery of his dead body. The said mobile phone is Ex. P6. The said witnesses also identified the purse containing 1 photostate copy of voter I card and a photo to be of the deceased. The same are collectively Ex. P2.
18) Accordingly, there is no eyewitness of the murder of the deceased Pavitra Kumar Sarkar. The body of the deceased Pavitra Kumar Sarkar was seen firstly by PW5 Sh. Praveen Kumar at 07.00 07.15 am and he made a call at 100 number to the police. There is no witness had lastly seen the accused persons with the deceased. All the witnesses cited by the prosecution had come to the spot only after the body was discovered by PW5 in the morning of 15.11.2013.
19) On 15.11.2013 at about 11.20 am patient Pavitra Kumar Sarkar was taken to SDN Hospital for examination where he was declared brought dead by PW4 Dr. Sudhanshu Shekhar vide MLC Ex.
SC No. 432/2016 Page 31 of 66 ASJ04(East)/KKD Courts/Delhi PW4/A.
20) The postmortem of the dead body of Pavitra Kumar Sarkar was conducted on 16.11.2013 by Dr. S.Lal PW3 at 10.50 am and he found following antemortem injuries :
i) Stab incised wound 3.5x0.3 cmsxchest cavity deep over right side upper middle front of chest, obliquely placed 5 cms from midline and 10 cms from the medial end of clavicle. The lower inner angle of wound was acute and outer upper angle was blunt. The wound enter the chest cavity by cutting the third costal certilage in inward, medially and backward direction that perforate the lower part of middle low of right lung through and through. Total depth of the wound was about 13 cms and approximate 2 liters of blood present in chest cavity.
ii) Stab incised wound 3.8 x 0.2 cms x abdominal cavity deep over left side lower abdomen obliquely placed, 11 cms above the anterior superior iliac spine, and 11.5 cms from the midline. The inner lower angle of wound was acute and outer upper angle was blunt. The wound enter the cavity in inward, medially and SC No. 432/2016 Page 32 of 66 ASJ04(East)/KKD Courts/Delhi backward direction and cutting the small intestine. Total depth of the wound was about 11.5 cms and approximate 1 liter of blood seen in the cavity.
On internal examination all the viscera of the deceased were pale and the injuries as mentioned in injury 1 and 2."
21) The cause of death was haemorrhagic shock due to antemortem stab injury to chest and abdomen were sufficient to cause death in ordinary course of the nature individually and collectively both. All injuries were antemortem in nature and fresh in duration. The injury no. 1 and 2 were caused by single pointed sharp edged weapon. The time since death was about 24 to 36 hours.
22) All clothes of the deceased, viscera, nail clipping of both hands and blood soaked in gauze piece were preserved and handed over to the IO alongwith sample seal. PW3 gave postmortem report Ex. PW3/A. After seeing the viscera report of the deceased vide FSL report no. 2013/C9256 Ex. C2 which gave negative test for common poison as mentioned in the FSL result, he opined that the deceased was not under the influence of any intoxication at the time of death.
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23) Accordingly, from the testimony of PW3 and the post mortem report Ex. PW3/A it is revealed that deceased Pavitra Kumar Sarkar passed away due to haemorrhagic shock caused by antemortem two stab injuries to chest and abdomen, which were sufficient to cause death in ordinary course of the nature individually and collectively both.
24) During investigation, accused Sunny @ Nepali was arrested from his house at H.No. 4149, Gali No. 12, Ajeet Nagar, at the pointing out of a secret informer. His disclosure statement Ex. PW20/C was recorded. It is deposed by PW20 and PW24 that accused Sunny @ Nepali produced a knife from the corner of a toilet situated under the stairs on the ground floor and that he disclosed that he used the said knife in the incident. The knife is Ex. P1. He also produced one mobile phone of redblack and silver colour from a shelf without door fixed in the wall of a room situated on the ground floor of the house of the accused. PW20 deposed that the accused disclosed that he had robbed the said mobile phone in the said incident and that the IO checked the said mobile phone and it was found containing one Airtel SIM card, which was seized vide seizure memo Ex. PW20/F. Accused Sunny @ Nepali also produced one white pant and there was a small SC No. 432/2016 Page 34 of 66 ASJ04(East)/KKD Courts/Delhi black colour tag on which 'Sunlives' was written, above right pocket of the said pant. He also produced one black colour shirt (with a logo in the shape of 'V' was made and one khakhi colour jursey from the corner of the said room. The said clothes were seized by the IO vide seizure memo Ex PW20/G (parcel no. 11) and it was disclosed by the accused Sunny @ Nepali as deposed by PW20 and PW21 that the said clothes were worn by him at the time of incident. The said clothes of accused Sunny @ Nepali are Ex. PX (Colly).
25) At the pointing of accused Sunny @ Nepali, accused Mohd. Shahid was apprehended from his house at 4005, Gali No. 17, Ajeet Nagar. His disclosure statement was recorded vide Ex. PW20/H. Accused Mohd. Shahid produced one black colour purse which was robbed in the incident from inside a Chhajja/loft situated on a room at the ground floor. The purse contained photocopy of voter I Card and one passport sized colour photo of the deceased. The purse was seized vide seizure memo Ex. PW20/I. He also produced the clothes which were worn by him at the time of incident i.e. one jersey of yellow colour which had two black and one white strips on which 'G' was written, one blue colour jeans pant which had a tag of 'FIRE X'. The said clothes were seized vide seizure memo Ex. PW20/J (parcel no. 12). The SC No. 432/2016 Page 35 of 66 ASJ04(East)/KKD Courts/Delhi clothes of accused Mohd. Shahid are Ex. PY (colly).
26) In their deposition before the court PWs 10, 11 & 12 identified the phone of China make, red colour to be the same which belonged to the deceased and was missing at the time of recovery of his dead body. The said mobile phone is Ex. P6. The said witnesses also identified the purse containing 1 photostat copy of voter I card and a photo to be of the deceased. The same are collectively Ex. P2.
27) The knife Ex. P1 recovered at the instance of accused Sunny @ Nepali was sent to FSL, Rohini, on 13.12.2013 through Const. Abhishek alongwith other exhibits including the clothes of the accused persons, blood sample of the deceased, exhibits lifted from the spot for their evaluation and analysis vide RC No. 144/21/13 Ex. PW23/D and after depositing the exhibits and sample seals, Ct. Abhishek returned to Police Station and handed over the acknowledgment Ex. PW23/E to MHC(M). On the same day, MHC(M), PW23, on instructions of the IO sent 13 sealed exhibits alongwith three sample seals to FSL, Rohini through Ct. Abhishek Pandey vide RC No. 145/21/13 Ex. PW23/F and after depositing the exhibits and sample seals, Ct. Abhishek returned to Police Station and SC No. 432/2016 Page 36 of 66 ASJ04(East)/KKD Courts/Delhi handed over the acknowledgment Ex.PW23/G.
28) The FSL result in respect of the articles and exhibits collected during investigation is Ex. C1. As per the said report blood was detected on exhibits 2 (cotton wool swab with dark stains), 3 (cemented material with brown stains), 4 (one chappal with dark stains), 5 (one handkerchief with brown stains), 7 (cemented material having dark stains), 8 (nail clippings of the deceased), 9 (blood in gauze of deceased), 10a (TShirt with dark stains of the deceased), 10b (shirt with dark stains of the deceased), 10c (one banyan with dark stains of the deceased), 10d (one pant with dark stains of the deceased), 10e (one underwear with dark stains of the deceased), 11a (one jacket with brown stains of accused Sunny @ Nepali), 11b (one shirt of accused Sunny @ Nepali), 11c (one pant with brown stains of accused Sunny @ Nepali), 12a( one sweater with brown stains of accused Mohd. Shahid), 12b (one pant with dark stains of accused Mohd. Shahid), 13 (one knife with plastic handle and metallic blade having brown stains). As per FSL result Ex. C1 blood was not detected on Ex. 1 (one chappal) and 11b (one shirt of accused Sunny @ Nepali).
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29) As per the serological result, 'O' Group blood was found on Ex. 9 i.e. blood gauze containing blood sample of the deceased. 'O' Group blood was also found on Ex. 10b (shirt of the deceased) and 10c (Banyan of the deceased). 'O' Group blood was also found on Ex. 11A i.e. jacket of accused Sunny @ Nepali.
30) Subsequently, on 14.06.2022 upon an application received from SI Sumit Kumar alongwith sealed parcel containing weapon of offence i.e. knife (Ex. P1), PW3, Dr. S.Lal prepared a detailed diagrammatic presentation of knife vide Ex. PW3/B. After going through the postmortem report finding and examination of weapon of offence i.e. knife, he opined that the injuries mentioned at Point No. 1 and 2 discussed herein above, could be possible to be produced by the weapon of offence i.e. knife produced before him for examination. The subsequent opinion of Dr. S.Lal is Ex. PW3/C.
31) The FSL result regarding the viscera of deceased Pavitra Kumar Sarkar is Ex. C2. As per the said report, on analysis, no poisons, alcohol, cyanides, phosphide, alkaloids, barbiturates, tranquilizers or pesticides were detected in the viscera samples of the deceased.
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32) After perusing the viscera report of deceased Pavitra Kumar Sarkar while recording his testimony, Dr. S. Lal PW3, after going through the postmortem report finding and FSL report of viscera, opined that the deceased was not under the influence of any intoxication at the time of death.
33) PW3 Dr. S.Lal was crossexamined by the counsel for the accused persons wherein he stated that the injury mentioned in the postmortem report could be possible with another similar type of weapon. He further deposed that without DNA analysis it cannot be stated if the blood group belongs to the same person or not.
34) In view of the aforesaid discussion, it is manifest on record that there is no direct evidence regarding the involvement of the accused persons in the crime. The case of the prosecution is hence based on circumstantial evidence. The Hon'ble Supreme Court has observed in a catena of decisions that the factors to be taken into account in adjudication of cases of circumstantial evidence are the following:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances SC No. 432/2016 Page 39 of 66 ASJ04(East)/KKD Courts/Delhi concerned "must" or "should" and not "may be" established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487 SCC p. 185, para 153; M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 para 18.; Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 , para 14 referred to)"
35) It would be relevant to note that the incriminating evidence against the accused persons in the present case is as follows :
SC No. 432/2016 Page 40 of 66 ASJ04(East)/KKD Courts/Delhi
i) Testimony of PW10, 11 & 12, who deposed that
deceased Pavitra Kumar Sarkar used to carry a mobile phone of red colour bearing number 9818606954 and a purse containing money, photostat copy of voter ICard and a photo.
The above said articles were stated to be missing from the pockets of the deceased. They also identified the mobile phone and purse of the deceased containing his voter ICard and photograph as Ex. P6 and P2 respectively.
ii) Recovery of knife Ex. P1 at the instance of accused Sunny @ Nepali. As per testimony of PW3 the two stab injuries mentioned in the postmortem report Ex. PW3/A could be possible to be produced by the weapon of offence i.e. knife produced before him for examination. Blood was detected on the knife (Ex.13) as per FSL report Ex. C1.
iii) Recovery of mobile phone of the deceased Ex. P6 at the instance of accused Sunny @ Nepali.
iv) Recovery of purse containing photocopy of voter ID of the deceased and photograph of the deceased at the instance of accused Mohd. Shahid (Ex. P2).
v) Recovery of clothes i.e. one blood stained jacket, shirt and pant belonging to accused Sunny @ Nepali Ex. PX (colly). As per FSL result Ex. C1, the jacket of accused SC No. 432/2016 Page 41 of 66 ASJ04(East)/KKD Courts/Delhi Sunny @ Nepali (Ex. 11a) had blood stains of blood group 'O' which was the blood group of the deceased (Ex. 9).
vi) Recovery of clothes i.e. one sweater having blood stains, one blue jeans pant having blood stains belonging to accused Mohd. Shahid Ex. PY (colly).
36) The disclosure statements of accused persons namely Sunny @ Nepali Ex. PW20/C and Mohd. Shahid Ex. PW20/H were made by them in police custody. The above said recoveries were affected pursuant to disclosure statements of the accused persons while they were in police custody and would hence be hit by section 25 of Evidence Act except to the extent as provided under section 27 of the Evidence Act. In this context it would be apposite to refer to the decisions of the superior courts for guidance.
37) In a recent decision in Shahaja @ Shahajan Ismail v. The State of Maharashtra, passed on 14.07.2022 in Criminal Appeal No. 739 of 2017, the Hon'ble Supreme Court discussed the position law as regards the discovery of weapon of offence under Section 27 of the Evidence Act and while referring to the earlier decisions and made the following observations:
SC No. 432/2016 Page 42 of 66 ASJ04(East)/KKD Courts/Delhi "The conditions necessary for the applicability of Section 27 of the Act are broadly as under:
(1) Discovery of fact in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave informations and (4) So much of information as relates distinctly to the fact thereby discovered is admissible -
Mohmed Inayatullah vs The State of Maharashtra: AIR (1976) SC 483: (1975) Cur LJ 668 Two conditions for application - (1) information must be such as has caused discovery of the fact;
and (2) information must relate distinctly to the fact discovered.
Kirshnappa vs State Of Karnataka : AIR (1983) SC 446 : (1983 )Cr LJ 846
43. We may refer to and rely upon a Constitution Bench decision of this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya reported in AIR (1960) SC 1125, wherein, the Supreme Court in Paragraph71 has explained the position of law as regards Section 27 of the Act as under:
"71. The law has thus made a classification of accused persons into two: (1) those two have the danger brought home to them by deten tion on a charge; and (2) those who are yet free. In the former cate gory are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guar anteed by the discovery of a relevant fact unknown before the SC No. 432/2016 Page 43 of 66 ASJ04(East)/KKD Courts/Delhi state ment to the investigating authority. That statement may even be con fessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as result, and it can be proved that his death was due to in juries received by a fall down the mineshaft."
44. The scope and ambit of Section 27 of the Act were illuminatingly stated in Phulukuri Kottaya v. Emperor, AIR (1947) PC 67, which have become locus classicus, in the following words:
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed 'A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
45. What emerges from the evidence of the PW4 & PW10 resply is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon concealed adjacent the shoe shop at Parle". This statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived SC No. 432/2016 Page 44 of 66 ASJ04(East)/KKD Courts/Delhi knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence.
46. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, this Court took into consideration a very similar fact situation and observed in paragraph 15 that, if the case is dependent on circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eyewitnesses was not of the standard required in cases dependent wholly on circumstantial evidence (as is the case here). This Court observed that the evidence of discovery of pistol at the instance of the appellant cannot, by itself, prove that he who pointed out the weapon wielded it in the offence. The statement accompanying the discovery was found to be vague to identify the authorship of concealment and it was held that pointing out the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept." (emphasis supplied).
38) In Prabhoo v State of U.P., AIR 1963 SC 1113, a kulhari, a shirt and a dhoti which were found to be stained with human blood were recovered from the house of the accused, at his instance. The Hon'ble Supreme Court observed that it is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused SC No. 432/2016 Page 45 of 66 ASJ04(East)/KKD Courts/Delhi and not with his innocence and that from the mere production of the blood stained articles by the accused, one cannot come to the conclusion that the accused committed the murder inasmuch as the fact of production cannot be said to be consistent only with guilt of the accused and inconsistent with his innocence, for the reason it is quite possible that someone else committed the murder and kept the blood stained articles in the house of the accused and that the accused might have produced the said articles when interrogated by the police. The Hon'ble Supreme Court thus acquitted the accused.
39) In Phulukuri Kottaya v. Emperor, as discussed hereinabove, the Hon'ble Supreme Court has laid down the scope of Section 27 Evidence Act and viewed in the light of the said judgment and subsequent case law on the subject, the incriminating evidence which remains is that the accused Sunny @ Nepali produced the mobile phone Ex. P6 and the weapon of offence i.e. a knife Ex. P1 and the clothes Ex. PX (Colly) from his own house and the evidence against accused Mohd. Shahid is that he got recovered the purse of the deceased containing voter ICard and a passport size photograph Ex. P2 and the clothes Ex. PY (Colly) from his house. Hence apart from the weapon of offence, the articles belonging to the deceased were also recovered at SC No. 432/2016 Page 46 of 66 ASJ04(East)/KKD Courts/Delhi the instance of accused Sunny @ Nepali and Shahid respectively. In their statement record u/s 313 Cr.P.C. the accused persons stated that nothing was recovered from their possession or at their instance from their house. Recoveries were falsely planted upon them to implicate them in the present case. They were falsely implicated in the present case to solve a blind murder case. Accordingly, both the accused persons denied that the above said articles were recovered from their possession or at their instance. The Hon'ble Supreme Court has discussed the applicability of section 114 Evidence Act where the articles of the deceased were recovered, at the instance of the accused pursuant to the disclosure statement of the accused in a catena of decisions.
40) In Sanwat Khan And Anr. vs State Of Rajasthan, AIR 1956 SC 54, the Hon'ble Supreme Court held as under :
"Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to Section 114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time. SC No. 432/2016 Page 47 of 66 ASJ04(East)/KKD Courts/Delhi The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they, received these goods knowing them to be stolen or that they themselves stole them; but in the absence of any other evidence, it is not possible to hold that they are guilty of murder as well."
41) In this context, the decision of the Hon'ble Supreme Court in Limbaji & Others v. State of Maharashtra, decided by the Hon'ble Supreme Court on 14.12.2001 in Criminal Appeal No. 11201121 of 2000, may be referred to. In the said case three appellants were charged for offences u/s 302/392/34 IPC for committing murder of one Baburao at his field and robbing him of golden ear rings and silver lingakar worn by him. The Hon'ble Supreme Court considered the applicability of Section 114 Indian Evidence Act (hereinafter referred to as Evidence Act) where the articles of the deceased were recovered at the instance of the accused and observed as follows :
"We are now left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of accused under Section 27 of Evidence Act, leaving apart for the time being the aspect concerning injuries inflicted on the deceased. The question then is whether there was discovery of incriminating articles in consequence of information received from the accused in custody and whether such discovery warrants a presumption to be drawn under Section 114 and if so, to what extent that presumption has to be drawn."
SC No. 432/2016 Page 48 of 66 ASJ04(East)/KKD Courts/Delhi It was further observed as under:
"Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly Section 114 Evidence Act. Section 114 enjoins: "the Court may presume the existance of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." Having due regard to the germane considerations set out in the Section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not. Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case: "The Court may presume that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
42) The Hon'ble Supreme Court also took note of the injuries on the ear lobules of the victim, which could have been caused due to forcibly snatching of the ear rings worn by the victim. The prosecution version was that the deceased was hit by a heavy stone found at the spot. The injuries were stated to be antemortem in nature. The court SC No. 432/2016 Page 49 of 66 ASJ04(East)/KKD Courts/Delhi observed that it was clear beyond reasonable doubt that the person or the persons, who removed the ornaments worn by the deceased, themselves inflicted wounds in the process of removing them. The Hon'ble Supreme Court also noted that causing injuries to the deceased in the process of removal of ear rings was inextricably interlinked with the commission of theft, which was an ingredient of robbery. Hence, the Hon'ble Supreme Court was of the view that by having resort to presumption u/s 114, an inference could be safely drawn that the appellants committed robbery in furtherance of common intention. However, as to whether the presumption u/s 114 Evidence Act could be further extended to the offence of murder, the Hon'ble Supreme Court made the following observations:
"VI.(c) Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan's case, the threeJudge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction.
SC No. 432/2016 Page 50 of 66 ASJ04(East)/KKD Courts/Delhi When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S.34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim."
43) Hence, the Hon'ble Supreme Court did not consider it proper to extend the presumption u/s 114 Evidence Act beyond theft/robbery (owing to presence of injuries indicating forcible removal of ear rings) in absence of any other incriminating circumstances except possession of articles belonging to the deceased soon after the crime and also observed that it was not safe to extend the presumptiion u/s114 of Evidence Act to hold the accused persons guilty of murder with aid of Section 114 Evidence Act. The Hon'ble Supreme Court accordingly convicted the appellants therein u/s 394/34 IPC and set aside the conviction u/s 302 IPC.
44) In another case based on circumstantial evidence, Dhan Raj @ Dhand vs State Of Haryana, decided on 9 May, 2014, Criminal Appeal No. 1410 of 2010 the Hon'ble Supreme Court discussed the law on the subject. The said case was also based on circumstantial evidence SC No. 432/2016 Page 51 of 66 ASJ04(East)/KKD Courts/Delhi and the wife of the deceased disclosed that the deceased had with him a briefcase and a wrist watch when he left home. Coaccused Sanjay while in police custody for a different case disclosed about the present case. In his disclosure statement he named accused Dhan Raj and Badal, appellants in the present case, as the coaccused persons. He also disclosed that he had concealed a Kripan with his blood stained clothes and he got the said articles recovered. The blood on the Kripan was found to be human blood by FSL Madhuban. Accused Dhan Raj and Badal got recovered the brief case and wrist watch respectively. The briefcase and the wrist watch were duly identified by PW7 wife of the deceased.
45) The Hon'ble Supreme Court discussed the law relating to the circumstantial evidence and made the following observations:
"The prosecution relied on the disclosure statements of the accused appellants, the subsequent recovery of the briefcase and wrist watch on the basis of the same and the statement of Shanti Devi corroborating that the recovered wrist watch and briefcase belonged to the deceased. After considering the evidence on record, we find that no proper recovery has been made in the present case. The objects which were recovered were two common articles, not holding much value and it does not seem rational that any accused would keep such incriminating items connecting themselves to a crime with them in their house.
SC No. 432/2016 Page 52 of 66 ASJ04(East)/KKD Courts/Delhi The Hon'ble Supreme Court further observed as follows :
"Furthermore, it appears to us that the recovery has not been corroborated by any proper independent evidence. Moreover, recovery of an object is not a discovery of fact, as per the decision of this Court in Mano vs. State of Tamil Nadu[4]. Recovery must be of a fact which was relevant to connect it with the commission of crime. Therefore, even if the recovery of goods is reliable then it does not indicate that the accused appellants committed the murder and the only admissible fact which can be inferred is that they are in possession of stolen goods."
46) The appellants in the abovesaid case were acquitted. The Hon'ble Supreme Court held that in a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved must form a complete chain without any chance of surmise or conjecture and must be consistent with the guilt of the accused.
47) The facts of the present case have to be viewed in the light of law discussed hereinabove. PW10 Noton Kumar Sarkar, brother of the deceased, in his crossexamination deposed that he did not know what the deceased used to carry with him as he had been living separately from him for the last 5 to 6 years. He also did not know as to what articles the deceased used to carry in his purse. He denied that he SC No. 432/2016 Page 53 of 66 ASJ04(East)/KKD Courts/Delhi had wrongly identified the case property as he had never visited the house of the deceased, his brother, or that due to the said reason he was not able to identify the purse and the mobile phone of the deceased. PW11 Ravindro Chandra Dass, who used to live alongwith the deceased in the tenanted premises, deposed in his crossexamination that he did not know as to what articles the deceased used to carry in his purse. He also affirmed that the mobile phone, purse and handkerchief of similar type were easily available in the market. He further stated that there was no special mark of identification on the articles, which he had identified in TIP and in court. He denied that he had identified the articles of deceased in the TIP proceedings and before court at the asking of the police. PW12 Binoy Burman, who also used to live alongwith the deceased in the tenanted premises, deposed in his cross examination that he did not know as to what articles the deceased used to carry in his purse and pocket. He stated that the brother of the deceased Noton Kumar Sarkar never visited them at any point of time. He was asked by the brother of the deceased to identify the articles of the deceased during TIP and during deposition before court.
48) The accused Sunny @ Nepali was apprehended upon secret information received by the IO regarding presence of accused Sunny @ Nepali at Gali No. 12, Ajeet Nagar. It is deposed by PW20 that the SC No. 432/2016 Page 54 of 66 ASJ04(East)/KKD Courts/Delhi IO/Insp. Sanjay Kumar Sinha alongwith SI Kulbir, Ct. Kailash and PW20 went to the said place. When they reached the house of accused Sunny @ Nepali i.e. H.No. 4149, Gali No. 12, Ajeet Nagar, at the pointing out of the secret informer, who was released from there. Thereafter they entered the house of accused Sunny @ Nepali, who was also a B.C. of PS Gandhi Nagar. Upon seeing the police party he tried to run away but he was apprehended by Ct. Kailash and PW20. In this regard PW21 deposed that on 17.11.2013 IO received secret information regarding presence of the accused in H.No. 4149, Gali No. 12, Ajeet Nagar, and thereafter he alongwith IO/Insp. Sanjay Kumar Sinha alongwith Ct. Kailash and PW20 Deep Chand reached there and the secret informer pointed towards one person sitting inside the house and told them that he was Sunny @ Nepali and thereafter the secret informer went away. The police went inside the house and after seeing them, the accused tried to flee away. PW24 IO/Insp. Sanjay Sinha deposed that upon the information received from the secret informer at the police station that one accused could be found at Gali No. 12, Ajeet Nagar, he alongwith SI Kulbir, Ct. Kailash and PW20 Deep Chand reached there and upon identification of the secret informer, they tried to apprehend one person, who was standing near the gate of H.No. 4149. Upon seeing them, he tried to move forwards with big steps, however, he was apprehended by them. Accordingly, there are inconsistencies in the SC No. 432/2016 Page 55 of 66 ASJ04(East)/KKD Courts/Delhi testimony of the above said witnesses as to whether the secret informer had pointed at the house of accused Sunny @ Nepali (as stated by PW20) or he had pointed at accused Sunny @ Nepali himself (as stated by PW21 & PW24). Both PW20 and 21 stated that the police team went inside the house to apprehend accused Sunny @ Nepali, whereas PW24 deposed that accused Sunny @ Nepali was standing near the gate of H.No. 4149. Hence, there are inconsistencies regarding as to whether the secret informer pointed out the accused Sunny @ Nepali or his house and the place where the accused Sunny @ Nepali was present when the police team tried to apprehend him. Admittedly, parents of accused Sunny @ Nepali were present at his house, however, their signatures were not obtained on his arrest memo Ex. PW20/A.
49) It is pertinent to note that there is no public witness of the alleged recoveries. None of the seizure memos Ex. PW20/E, seizure memo of knife, Ex. P1; Ex. PW20/F, seizure memo of mobile phone Ex. P6; Ex. PW20/G, seizure memo of clothes Ex. PX (Colly), recovered at the instance of accused Sunny @ Nepali; Ex. PW20/I, seizure memo of purse of the deceased Ex. P2; Ex. PW20/J seizure memo of clothes Ex. PY (colly), recovered at the instance of accused Mohd. Shahid, were witnessed by any public witness and hence there is no oral evidence of any public witness regarding the recoveries made by SC No. 432/2016 Page 56 of 66 ASJ04(East)/KKD Courts/Delhi the police.
50) It would also be worthwhile to consider the testimony of the witnesses of recovery in the present case. In his cross examination PW20 deposed that the house of accused Sunny @ Nepali i.e. Ajeet Nagar was in a busy area. IO did not give any notice to any public person, who refused to join investigation nor their names or addresses were noted down. Parents of accused Sunny @ Nepali were present at the house, however, they were not called to join the investigation. PW20 did not remember what articles were kept in the room where Sunny @ Nepali was sitting. He deposed that items like Tshirt and full sleeves jacket and trouser etc. easily available in the market. PW20 stated that the knife was lifted by accused Sunny @ Nepali and handed over to the IO, however, as the toilet was a small one and PW20 was in the room, he could not notice the actual handing over of the knife. Hence, PW20 Ct. Deep Chand did not himself witness accused Sunny @ Nepali handing over the knife to the IO as he was not present in the toilet and was present in the room. PW20 stated that the house of the accused Sunny @ Nepali was built up only one storey i.e. ground floor. In his crossexamination PW21 SI Kulbir deposed that the house of the accused Sunny @ Nepali was situated in residential area and that Ajeet Nagar, Gandhi Nagar, Delhi, was a residentialcumcommercial area. SC No. 432/2016 Page 57 of 66 ASJ04(East)/KKD Courts/Delhi He deposed that the house of accused Sunny @ Nepali must be having ground floor and first floor and the accused had met them on the ground floor of the house. His parents were present on the first floor and they came to the ground floor and again went to the first floor, thereby contradicting the version of PW20 that the house of accused Sunny @ Nepali was built upto ground floor only. Additionally, no neighbours were asked by the IO to join the investigation in his presence and knowledge. PW21 also deposed that Ajeet Nagar was a densely populated area. All the police officials entered the house of accused Sunny @ Nepali. There was no bed in that room. He deposed that Some pet ducks/swans were found in the house of accused Sunny @ Nepali, whereas PW20 did not remember the articles kept in the room in which accused Sunny @ Nepali was sitting and pertinently he did not mention anything regarding the presence of ducks/swans in his house, which fact could not have been missed/escaped his attention. PW20 denied that accused Sunny @ Nepali was lifted from his sister's house situated at Seelampuri and that he was not arrested in the alleged manner. The said witnesses also denied the suggestions that nothing was recovered at the instance of accused persons and due to said reason family members of accused persons did not join investigation or were cited as witness. They denied that the accused persons did not make any disclosure statement and that the signatures of accused persons were SC No. 432/2016 Page 58 of 66 ASJ04(East)/KKD Courts/Delhi obtained on blank papers and manipulated. It was denied that accused Mohd. Shahid was lifted from his house prior to 17.11.2013 for the purpose of investigation and later he was falsely implicated in the present case and recoveries were planted upon them. It was denied that accused Sunny @ Nepali had been falsely implicated in the instant case as he was Bad Character of the area.
51) As regards accused Shahid, PW20 deposed that family members of accused Shahid were present at his house. The purse, which he got recovered, was kept by accused Shahid in unwrapped condition. Const. Kailash was having custody of accused Sunny @ Nepali and he was present in the room of accused Mohd. Shahid when the proceedings were carried out. Const. Kailash, who was also present at the time of the recovery of articles from the accused persons, has not been examined as a witness. Though family members of accused Shahid were present at his house, they were not joined in the investigation and their signatures were not obtained either on the arrest memo Ex. PW21/A1 or seizure memo Ex. PW20/I of the purse and Ex. PW20/J of his clothes.
52) It is also relevant to note that PW20 deposed that accused Sunny @ Nepali produced the mobile phone from a shelf, without door, SC No. 432/2016 Page 59 of 66 ASJ04(East)/KKD Courts/Delhi fixed in the wall of the room situated on the ground floor of his house. In this regard, PW21 deposed that the accused Sunny @ Nepali got recovered the mobile phone after opening the almirah made in one of the walls in the room on the ground floor and PW24 stated that accused Sunny @ Nepali got recovered a mobile phone from an almirah made in a wall of his room, hence, all the witnesses of recovery of mobile phone i.e. PW20, 21 & 24 have given a different version as regards the place i.e. shelf / almirah and whether the same was open/closed, from which the mobile phone of the deceased was got recovered by accused Sunny @ Nepali.
53) It therefore emerges that apart from inconsistencies in the testimonies of recovery witnesses, no cogent explanation has been given by the prosecution to show as to why no independent witness was joined at the time of recovery of incriminating articles from the accused persons. No effort has been shown on record to join independent persons at the time of recovery. Merely a vague explanation has been given by the IO Insp. Sanjay Sinha PW24 that he had request 34 public persons to join the investigation but none of them joined. He also stated that the accused persons were apprehended from residentialcum commercial locality and the family members of accused persons were not made witnesses at the time of effecting recovery from their SC No. 432/2016 Page 60 of 66 ASJ04(East)/KKD Courts/Delhi respective houses.
54) Though nonjoining of public witnesses is not fatal to recovery proceedings, however, a case like the present one, which is essentially based on recoveries from the accused persons, the necessary safeguards ought to have been exercised by the investigating officer to take care that the legislative safeguards are duly complied with. In the present case both the accused persons have stated in their statements recorded u/s 313 Cr.P.C. that the said articles were planted by the police to solve a blind murder case. As discussed herein above, relevant suggestions in this regard were also put to the witnesses of recovery. It is deposed by PW20 that accused Sunny @ Nepali was a Bad Character of the area. He however denied the suggestion that he has been falsely implicated in the present case because of the said reason. Infact, there is no reason why accused Shahid would have kept the purse containing photograph of the deceased and his voter ICard at his house, when it holds no value at all, even two days after the incident in issue.
55) It is noteworthy that as per the FSL result Ex. C1, blood was found on the knife and the blood group of the deceased i.e. 'O' blood group was also found on the jacket belonging to accused Sunny @ Nepali. It is contended by Ld. Addl.P.P. for the State that the said SC No. 432/2016 Page 61 of 66 ASJ04(East)/KKD Courts/Delhi facts complete the chain of circumstantial evidence and thereby connecting the accused persons with the offence in issue.
56) The alleged recovery blood stained jacket and knife at the instance of the accused Sunny @ Nepali has to be examined in light of law discussed herein above. As per the FSL result Ex. C1 blood group 'O' was detected on the blood sample of the deceased (Ex. 9) and his shirt (Ex. 10b) and banyan (Ex. 10c) as well as jacket of accused Sunny @ Nepali (Ex. 11a). Blood was also found on the knife (Ex. 13). Blood group could not be determined on the knife. In this regard PW3 has deposed that the two stab injuries mentioned in the postmortem report were possible to be produced by the weapon of offence i.e. knife Ex.P1. No DNA analysis of the blood found on the above said exhibits was conducted so as to conclusively establish if the blood group 'O' found on the jacket alleged to be belonging to accused Sunny @ Nepali was that of the deceased. In this regard, PW3 Dr. S.Lal also in his cross examination stated that without DNA analysis it cannot be said if the blood group belongs to the same person or not.
57) In this context the judgment of the Hon'ble Supreme Court in the matter of Mustkeen v. State of Rajasthan may be referred too. In SC No. 432/2016 Page 62 of 66 ASJ04(East)/KKD Courts/Delhi the said case the Hon'ble Supreme Court observed as follows :
"The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder."
58) In light of law regarding the applicability of Section 27 of Evidence Act to the present case, the discovery of knife i.e. weapon of offence and blood stained clothes i.e. blood stained jacket with 'O' blood group at the instance of accused Sunny @ Nepali pursuant to his disclosure statement Ex. PW20/C, would be a relevant fact, however, the part of his disclosure statement stating that he had used the said weapon in the offence in issue to stab the deceased would be inadmissible since it does not relate to the discovery of the articles from his house. Hence, the fact of recovery of knife Ex. P1 and the fact that the bloodstained jacket of accused Sunny @ Nepali contained blood group 'O' which matched with the blood group of the deceased does not lead to a conclusion that the deceased was murdered by the accused SC No. 432/2016 Page 63 of 66 ASJ04(East)/KKD Courts/Delhi Sunny @ Nepali alongwith his coaccused Mohd. Shahid. Similarly, the disclosure statement of accused Sunny @ Nepali leading to discovery of mobile phone of the deceased and the disclosure statement of accused Mohd. Shahid leading to discovery of the purse of the deceased from his house can only associate them with the offence to the extent as discussed in the case of Limbaji (Supra) and Dhan Raj (Supra) and therefore, the recovery of the mobile phone and purse from them respectively cannot lead to a conclusion that they had committed murder or robbery of the deceased. It is relevant to note in the present case except two stab injuries, no other injuries were found on the body of the deceased and hence, it would not be prudent to extend the presumption u/s114 of Evidence Act to robbery or murder of the deceased Pavitra Kumar Sarkar in absence of any other incriminating circumstance.
59) The Hon'ble Supreme Court in the judgment of Chottu Singh v. State of Rajasthan, 1999, SCC (Criml) 461, observed that the statement made by the appellant before the IO is admissible u/s 27 of Evidence Act only to the extent that it proves that he had buried the dead body in the pit knowing that the offence of murder was committed but does not in the absence of any other material conclusively prove that he committed the murder. In the said case the conviction of the appellant u/s 302 IPC was set aside but his conviction u/s 201 IPC was affirmed. SC No. 432/2016 Page 64 of 66 ASJ04(East)/KKD Courts/Delhi
60) In these circumstances, the only admissible part of the statement attributed to the accused persons would be that they could show the place where the recovered articles were lying and could get the same recovered. No other part of their disclosure statements Ex. PW20/H (accused Mohd. Shahid) and PW20/C (accused Sunny @ Nepali) would be admissible. Moreover, the recoveries affected from the accused persons have not been proved beyond shadow of reasonable doubt. Even if recoveries are considered proved, then in light of law discussed hereinabove, the recoveries by themselves cannot lead to the sole conclusion of guilt of the accused persons in absence of any other independent evidence to connect the accused persons with the murder of deceased Pavitra Kumar Sakar.
61) As discussed herein above it is well settled that circumstantial evidence must be such as to lead to a conclusion which on any reasonable hypothesis is consistent only with the guilt of the accused person and not with his innocence. It cannot be conclusively inferred that the fact of production/recovery of the above said articles is consistent only with the guilt of the accused persons and inconsistent with their innocence. There is no oral evidence of any witness, who has either seen the accused persons committing the crime or even remotely SC No. 432/2016 Page 65 of 66 ASJ04(East)/KKD Courts/Delhi associated the accused persons with the offence in issue. In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. The chain of circumstantial evidence is not complete in the present case. None of the circumstances relied upon by the prosecution can be said to be unequivocally proving the guilt of the accused persons. In these circumstances, accused Sunny @ Nepali and Mohd. Shahid are acquitted of the charged offences punishable u/s 302/392/34 and 411 IPC.
62. After compliance of Section 437A Cr.P.C., file be consigned to Record Room. order DEEPALI Digitally signed by DEEPALI SHARMA SHARMA Date: 2022.07.30 16:48:34 +0530 (Pronounced in the open ( Deepali Sharma ) Court on 29.07.2022.) Addl. Sessions Judge 04 (East) Court No. 10: Karkardooma Courts Delhi SC No. 432/2016 Page 66 of 66 ASJ04(East)/KKD Courts/Delhi