Delhi District Court
State vs Neetu on 13 April, 2026
IN THE COURT OF MS. SHIVALI BANSAL
LD. ADDITIONAL SESSIONS JUDGE-02,
DWARKA COURTS, S-W DISTRICT, NEW DELHI.
In the matter of: -
State Vs. Neetu
S/o Sh. Mool Chand
R/o Village Chadod,
PS Mathon, District Bonda,
Uttar Pradesh.
Sessions Case No. 70/21.
FIR No. 717/20.
PS Chhawla.
CNR No. DLSW01-001210-2021.
Charge-sheet filed U/s 302/201 IPC.
Charge(s) framed against accused U/s 302/201 IPC.
Neetu
Date of filing of charge-sheet 20.10.2020
Date of case committed to Sessions 30.01.2021.
Court
Date of arguments 04.04.2026.
Date of judgment 13.04.2026.
Decision Acquittal.
JUDGMENT
1. Accused Neetu is facing trial for offences alleged to be committed u/s 302/201 IPC. He is accused of committing murder of Bhupender in the intervening night of 21- 22.07.2020, between 2.30 am to 3.00 am, in the house of one Mahender Singh, at gali no. 7, Goyla Vihar, Goyla Dairy. It is further alleged that accused Neetu after FIR No. 717/20. State Vs. Neetu.
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commission of murder has hidden dead body in a vacant plot bearing no. 23/23, gali no. 7, Goyla Vihar, Goyla Dairy, near St. Thomes School, so as to screen himself from the legal punishment.
2. Briefly stated the facts of the case, as per charge-sheet, are that on 22.07.2020, SI Shubham Singh received an information vide DD No. 44A that Const. Ram Swaroop has informed by phone that suspect Neetu has been caught at Chhawla drain, who on interrogation told that he had murdered his partner and he can get the dead body recovered. SI Shubham Singh left for spot. SHO concerned was telephonically informed about the incident, who also reached at the spot alongwith staff and found Const. Ram Swaroop and Const. Jitender with accused Neetu. Crime Team was already called at the spot. SI Shubham Singh reached at the spot and got inspected the spot from Crime Team. Photographs of the spot were taken.
3. At the instance of accused, dead body of Bhupender, aged about 28-30 years, was found lying in a vacant plot near the crime scene. The dead body soaked in blood was found lying in a ruined room with severe injury marks on his face and head. The accused informed that he had a fight with Bhupender that night, and at about 2.30-3.00 am in the night, he had killed Bhupender inside the room by hitting on his head and face with an iron rod and the dead body was dumped in a ruined room lying nearby after covering the dead body with garbage from the plot. The dead body was wearing blue colour pants and light pink colour t-shirt, FIR No. 717/20. State Vs. Neetu.
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which had printed front. The dead body was covered with garbage lying around.
4. Crime Team had already taken photographs of the spot on the instructions of Inspector. Photographs were taken even after taking the dead body out and there were blood stains in the room built inside house no. 23/23, gali no. 7, Goyala Vihar, which was also photographed by Crime Team. Exhibits were lifted from the spot and taken into police possession. Thereafter, the present case was got registered.
5. During investigation, the dead body was got preserved at RTRM Hospital, site plan was prepared. Disclosure statement of accused was recorded. Accused got recovered iron pipe by which he killed Bhupender, which was hide under the bushes in the plot, where the dead body thrown.
6. During further investigation, police recorded statement u/s 161 CrPC of house owner Mahender for whom the accused used to work. He stated that he met Neetu and Bhupender near St. Thomas School about 5-6 days ago and they agreed to for him. He brought Neetu and Bhupender to his house at 23/23, gali no. 7, Goyla Vihar, Goyla Dairy, New Delhi, and they started working in his house. There are 5 rooms in his house and a cow lives in one room. Till the work is over, he gave the room in which the cow lives to Neetu and Bhupender. His tenant Renu lives in the room next to his room. Bhupender used to fight with Neetu after getting drunk and used to make noise and abuse Neetu. Even on the night of 21-22.07.2020, Bhupender drank alcohol and started fighting and abusing Neetu. He explained to FIR No. 717/20. State Vs. Neetu.
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Bhupender and then went to his room. Neetu came to the room with police. He was also present at home at that time. Neetu went ahead and got the blood soaked dead body of Bhupender recovered from the vacant plot, who had many injury marks on his face and head. Neetu told that he had a fight with Bhupender that night, whom he killed inside the room at around 2.30-3.00 am in the night by hitting him on the head and face with an iron rod and the dead body was found in a ruined empty room nearby. Neetu had thrown the dead body in the bathroom and covered it with garbage so that no one suspects him. The dead body was wearing a blue pant.
7. Site plan of spot was prepared, where accused Neetu killed Bhupender and threw the body in a ruined empty plot and covered it with garbage.
8. Disclosure statement of accused was recorded wherein he admitted his guilt.
9. Statement of Renu, who lived in the room next to the accused, was recorded u/s 161 CrPC, wherein she mentioned that she alongwith her family used to live in the house of Mahender Singh, who brought two labourers namely Bhupender and Neetu for work his house. Bhupender was an alcoholic and used to abuse and fight with Neetu after drinking alcohol. On 21-22.07.2020, also Bhupender abused and fought with Neetu. Her landlord Mahender explained to Bhupender and went to his room. Neetu came to the room with the police and recovered the blood soaked dead body of Bhupender from the vacant FIR No. 717/20. State Vs. Neetu.
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ruined plot, who had many injury marks on his face and head. Neetu told that he had a fight with Bhupender that night, whom he killed inside the room by hitting him on the head and face with an iron rod at around 2.30-3.00 am in the night and threw the dead body in the vacant ruined room and covered the body with garbage so that no one suspects him. The dead body was wearing blue colour pants and light pink colour printed t-shirt, which was printed from the front and the dead body was covered with garbage lying around.
10. During investigation, accused got recovered iron pipe, which was taken into police possession. Recovery of iron pipe was videographed. Case property was deposited in malkhana. Postmortem on the dead body of deceased was got conducted. As per postmortem report cause of death is cerebral damage consequent upon blunt force injury to head; all the injuries are ante-mortem in nature and could have been caused by hard and blunt force trauma. Scaled site plan was got prepared. Statement of relevant witnesses were recorded.
11. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO. Supplementary charge-sheet was also filed in the Court by the IO through SHO. Copy of charge-sheet was received by ld. defence counsel on behalf of accused on 07.12.2020 u/s 207 CrPC. Vi d e order dated 27.01.2021, the case was committed to the Court of Sessions u/s 209 CrPC.
FIR No. 717/20. State Vs. Neetu.
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12. Vide order dated 23.04.2022, the Ld. Predecessor Court framed charges against the accused u/s 302/201 IPC. Accused pleaded not guilty and claimed trial.
13. To prove its case, prosecution has examined 21 witnesses.
The testimonies of prosecution witnesses alongwith its nature has been discussed briefly in the following paragraphs.
Chart of Witnesses Examined
PW No. PW Name Description
PW1 Pushpender Brother of deceased/witness of
dead body identification memo
PW2 Mahender Landlord of accused and
deceased
PW3 ASI Raj Kumar Witness of various seizure
memos
PW4 HC Rakesh Kumar MHC(M)
PW5 ASI (Retired) Bhagwan Incharge, Mobile Crime Team
Yadav
PW6 ASI Banwari Lal Member of Mobile Crime Team
PW7 HC Vikas Member of Mobile Crime Team
PW8 SI Shubham Initial IO
PW9 HC Pradeep Messenger to FSL
PW10 W-HC Minakshi Duty Officer-cum-DD Writer
PW11 HC Sunil Duty Officer
PW12 Ranjeet Pal Videographer of recovery
proceedings of weapon of
offence
PW13 HC Jai Bhagwan Preserver of dead body
PW14 HC Ram Swaroop Beat Officer, who firstly
apprehended the accused in
FIR No. 717/20. State Vs. Neetu.
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suspected condition
PW15 HC Jitender Kumar Beat Officer, who firstly
apprehended the accused in
suspected condition
PW16 HC Ashok Kumar Messenger to FSL
PW17 HC Balram Messenger to rukka and FIR
PW18 Renu Neighbour of the deceased and
the accused
PW19 Dr. Uttam Kondle Prepared MLC of the deceased
PW20 Inspector Gyanender Rana IO of the case
PW21 Inspector Pankaj Kumar IO of supplementary charge-
sheet
Chart of Exhibited Documents
Exhibit No. Description of Document Proved By
Ex.PW1/A Dead body identification memo PW1
Ex.PW3/A Seizure memo of clothes of deceased PW3
Ex.PW3/B Seizure memo of nail clippings PW3
Ex.PW3/C Seizure memo of viscera PW3
Ex.PW3/D Seizure memo of blood gauze PW3
Ex.PW4/A Entry of register no. 19 vide serial no. 2125 PW4
(OSR) dated 22.07.2020
Ex.PW4/B Entry of register no. 19 vide serial no. 2125 PW4
(OSR)
Ex.PW4/C Copy of RC No. 154/21/20 PW4
(OSR)
Ex.PW4/D Acknowledgment of case property acceptance PW4
(OSR)
Ex.PW4/E Copy of RC No. 164/21/20 PW4
(OSR)
FIR No. 717/20. State Vs. Neetu.
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Ex.PW4/F Acknowledgment of case property acceptance PW4
(OSR)
Ex.PW5/A Mobile Crime Team report PW5
Ex.PW7/A-1 Photographs of spot clicked by photographer PW7
to of Crime Team
Ex.PW7/A-38
Ex.PW8/A Seizure memo of blood sample, blood earth PW8
control collected by ASI Jai Bhagwan, Incharge, Mobile Crime Team, from the spot Ex.PW8/B Seizure memo of earth control garbage, earth PW8 control garbage mixed with blood and blood stained jute bag lying near the dead body Ex.PW8/C Tahrir/rukka PW8 Ex.PW8/D Seizure memo of weapon of offence i.e. an PW8 iron rod Ex.PW8/E Unscaled site plan PW8 Ex.PW8/F Arrest memo of accused PW8 Ex.PW8/G Personal search memo of accused PW8 Ex.PW8/H Disclosure statement of accused PW8 Ex.P-1 Dirty and muddy blackish jute bag PW8 Ex.P-2 Iron rod PW8 Ex.PW10/A DD No. 44A PW10 Ex.PW11/A Endorsement on rukka PW11 Ex.PW11/B Copy of FIR PW11 Ex.PW11/C Certificate u/s 65B Indian Evidence Act PW11 Ex.P-3 DVD containing videography of recovery PW12 proceedings of weapon of offence Ex.PW16/A Copy of RC No. 164/21/20 PW16 Ex.PW16/B Acknowledgment of case property acceptance PW16 Ex.PW18/PX1 Statement of PW Renu PW18 FIR No. 717/20. State Vs. Neetu.
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Ex.PW19/A MLC No. 2536 PW19
Ex.PW20/A Seizure memo of sealed pulanda containing PW20
blood stained clothes of accused
Ex.PW20/B Form 25.35-B PW20
Ex.P-4 Earth control garbage PW20
Ex.P-5 Earth control garbage mixed with blood PW20
Ex.P-6 Earth control PW20
Ex.P-7 Earth control stained with blood PW20
Ex.P-8 Blood PW20
Ex.P-9 Clothes of deceased PW20
Ex.P-10 Nail clipping of deceased PW20
Ex.P-11 Viscera of deceased PW20
Ex.P-12 Blood gauge of deceased PW20
Ex.P-13 T-shirt of accused, which he worn at the time PW20
of his arrest
Ex.P-1 Pant of accused, which he worn at the time of PW20
his arrest
Ex.PW21/A Supplementary charge-sheet PW21
Chart of admitted documents u/s 294 CrPC Exhibit No. Description of Document Ex.PX-1 (colly) FSL report (running into 6 pages) Ex.PX-2 (colly) MLC and related documents (running into 4 pages) Ex.PX-3 GD No. 62A Ex.PX-4 GD No. 68A Ex.PX-5 GD No. 91A Ex.PX-6 Scaled site plan Ex.PX-7 (colly) PM report alongwith related documents (running into 5 pages) FIR No. 717/20. State Vs. Neetu.
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Ex.PX-8 Dead body identification memo
14. PW1 Pushpender deposed that in month of July 2020, he came to Delhi and identified dead body of his brother Bhupender at RTRM Hospital vide identification memo Ex.PW1/A. At that time, his brother was residing in the house of Mahender as tenant in Goyla Dairy.
15. PW2 Mahender deposed that at the time of incident, he was constructed a shed for his cattles, which he had kept at his house no. 23/23, gali no. 7, Goyla Vihar, Goyla Dairy, and hired accused Neetu and Bhupender to construct the shed, who met him outside on a road in front of St. Thomas School. He further deposed that both Neetu and Bhupender agreed to do the work and they installed cemented shed in his house. Out of five rooms of his house, he gave a room to Neetu and Bhupender to stay during the pendency of work. Neetu and Bhupender told PW2 that when weather will be appropriate they will leave the place. His other tenant Babli was also residing in other room alongwith his wife Renu.
16. During cross examination of PW2 by ld. Additional PP for State, he deposed that when police came with Neetu, Neetu led them to the plot, where blood stained dead body of Bhupender was lying and that dead body was having injury on head and face. That Neetu disclosed that he had a fight with Bhupender in the night and about 2.30-3.00 am, Neetu hit Bhupender with iron rod and killed him and his dead body was thrown in a room and then Neetu covered it with garbage, so that nobody gets any suspicion. (Vol. At that FIR No. 717/20. State Vs. Neetu.
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time, Neetu was in custody of police and was sitting in the PCR van.) That at that time, Bhupender was wearing a blue color pant and pink color printed t-shirt and his dead body was covered in garbage. PW2 also identified the dead body to be of Bhupender.
17. PW3 ASI Raj Kumar deposed that on 23.07.2020, he alongwith Inspector Gyanender Rana reached at RTRM Hospital, where identification of dead body of deceased Bhupender was got conducted through relatives of deceased namely Pushpender and Babu Lal. Thereafter, postmortem examination on the dead body of deceased Bhupender was got conducted and after postmortem examination, concerned doctor given him a sealed parcel sealed with the RTRM Hospital containing viscera of the deceased alongwith sample seal. He further deposed that thereafter, another sealed parcel containing cloths of deceased, other sealed parcels containing nail clippings of right and left hand of deceased and other sealed parcel containing blood gauze of deceased were handed over by the doctor concerned and said sealed exhibits were seized by the IO in his presence vide seizure memo of cloths of deceased Ex.PW3/A, seizure memo of nail clippings Ex.PW3/B, seizure memo of viscera Ex.PW3/C, seizure memo of blood gauze Ex.PW3/D. He also deposed that thereafter, dead body was handed over to its relatives for cremation.
18. PW4 HC Rakesh Kumar deposed that on 22.07.2020, SI Shubham Singh has given him 6 sealed parcels/exhibits alongwith copies of its seizure memo and Inspector FIR No. 717/20. State Vs. Neetu.
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Gyanender Rana has given him 2 sealed parcels/exhibits alongwith copies of its seizure memo. Said sealed exhibits were deposited in the malkhana and he made entry (running into 3 pages) in register no. 19 vide serial no. 2125 dated 22.07.2020 Ex.PW4/A (OSR).
19. He further deposed that on 23.07.2020, Inspector Gyanender Rana has given him 5 sealed parcels/exhibits alongwith copies of its seizure memo, which he deposited in the malkhana and made entry in register no. 19 vide serial no. 2125 Ex.PW4/B (OSR).
20. He also deposed that on 19.08.2020, seized exhibits i.e. sealed wooden box containing viscera of deceased alongwith sample seal were got deposited in FSL, Rohini, for examination through Const. Pradeep as per directions of SHO concerned. After depositing the same in FSL, copy of RC No. 154/21/20 Ex.PW4/C (OSR) alongwith acknowledgment of case property acceptance Ex.PW4/D (OSR) were handed over to him by Const. Pradeep.
21. He further deposed that on 27.08.2020, 12 sealed parcels alongwith sample seal were also got deposited in FSL vide RC No. 164/21/20 Ex.PW4/E (OSR) through Const. Ashok for examination and after that he received the copy of RC alongwith acknowledgment of case property acceptance Ex.PW4/F (OSR).
22. PW5 ASI (Retired) Bhagwan Yadav deposed that on 22.07.2020, he was posted as Incharge at Mobile Crime Team, PS Dwarka South, Dwarka Sector-9, New Delhi, and at about 12.45 pm, upon receiving information from PS FIR No. 717/20. State Vs. Neetu.
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Chhawla regarding murder of a person, he alongwith team members including HC Vikas (Photographer), HC Banwari Lal (Finger Print Proficient), HC Jai Singh (Videographer), reached at the spot i.e. 23/23, Mahender ka Makaan, Goyla Vihar, Gali No. 7, Chhawla, New Delhi, where SHO and other police officials met them. Thereafter, at the instructions of IO SI Subham, he inspected the spot and prepared his report Ex.PW5/A and handed over his report to IO.
23. PW6 ASI Banwari Lal deposed that on 22.07.2020, he alongwith ASI Bhagwan Yadav (Incharge Crime Team), HC Vikas (Photographer), Const. Jai Singh (Videographer), reached at the spot i.e. 23/23, Mahender ka Makaan, Goyla Vihar, Gali No. 7, Chhawla, New Delhi, where SHO and other police officials met them. One dead body was lying there in a damaged room on a plot. Garbage was also lying there. Opposite that plot, in a room some blood spots were also there. Thereafter, at the instructions Incharge Crime Team, he inspected both the places and tried to lift chance prints but since there was no plain surface to lift chance prints, no chance print could be obtained. Thereafter, he informed about the same to Incharge Crime Team.
24. PW7 HC Vikas deposed that on 22.07.2020, he was assigned duty of Photograph in Mobile Crime Team and he alongwith ASI Bhagwan Yadav (Incharge Crime Team), HC Banwari Lal (Finger Print Proficient), Const. Jai Singh (Videographer), reached at the spot i.e. 23/23, Mahender ka Makaan, Goyla Vihar, Gali No. 7, Chhawla, New Delhi, FIR No. 717/20. State Vs. Neetu.
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where SHO and other police officials met them. One dead body was lying at the spot and on the instructions of Incharge Crime Team, he clicked 38 photographs Ex.PW7/A-1 to Ex.PW7/A-38 from different angels at the spot from the digital camera and later, he took printout of the photographs on 5 sheets and handed over the same to IO.
25. PW8 SI Shubham deposed that on 22.07.2020, on receiving DD No. 44A, he reached at place of occurrence i.e. a house no. 23/23, near St. Thomas School, Goyla Vihar, Goyla Dairy, where SHO and other police staff were found there. Members of Crime Team were also present at the spot. During inspection of the spot, blood sample, blood earth control were collected by ASI Jai Bhagwan, Incharge, Mobile Crime Team, and same were handed over to him, which he taken into police possession vide seizure memo Ex.PW8/A. Crime scene was photographed by government photographer.
26. He further deposed that accused Neetu was also present at the spot who led them to a adjoining plot of said house, where some garbage was lying, and dead body of a person namely Bhupender was got recovered. Deceased was wearing blue colour pant and pink colour printed t-shirt. There were multiple injuries on the face and head of deceased. Dead body was got photographed. From there, earth control garbage, which was lying near the dead body, earth control garbage mixed with blood lying near the dead body and blood stained jute bag lying near the dead body FIR No. 717/20. State Vs. Neetu.
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were separately sealed and were taken into police possession vide seizure memo Ex.PW8/B.
27. He also deposed that he prepared tahrir/rukka Ex.PW8/C and got registered present FIR through Const. Balaram. Further investigation of this case was marked to IO Inspector Gyanender Rana. Before registration of the case, place of incident was inspected and a site plan Ex.PW2/D-1 was prepared.
28. He further deposed that during investigation, accused Neetu led them to the place, where dead body was found lying and at some distance from the place of dead body, accused Neetu got recovered weapon of offence i.e. an iron rod, which was sealed and it was taken into police possession by IO in his presence vide seizure memo Ex.PW8/D. Unscaled site plan Ex.PW8/E regarding the place of recovery of said weapon of offence was prepared by IO in his presence. Dead body of deceased was got preserved in the mortuary of RTRM Hospital through Const. Jai Bhagwan.
29. He further deposed that accused Neetu was arrested, his personal search was conducted and whatsoever he disclosed was reduced into writing, vide his arrest memo Ex.PW8/F, personal search memo Ex.PW8/G and disclosure statement Ex.PW8/H. Thereafter, he left the spot and custody of accused was with IO.
30. He identified a dirty and muddy blackish jute bag Ex.P-1 and an iron rod Ex.P-2.
31. PW9 HC Pradeep deposed that on 19.08.2020, on the instruction of IO Inspector Gyanender Rana, he collected FIR No. 717/20. State Vs. Neetu.
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one sealed wooden box containing viscera of deceased, vide RC No. 154/21/20 Ex.PW4/C and deposited the same in FSL, Rohini. After depositing the same, he handed over copy of acceptance of acknowledgment Ex.PW4/D to the MHC(M).
32. PW10 W-HC Minakshi deposed that on 22.07.2020, she received an information from Const. Ram Swaroop that " ek suspect aadmi Neetu to Chhawla nale par pakad rakha hai, jisne puchtach par bataya hai ki mene apne sathi ka mardur kar diya hai, mai dead body recover kara sakta hun, IO bheja jaye". Said information was got fed in official computer through CCTNS Operator vide DD No. 44A Ex.PW10/A and same was handed over to SI Shubham to proceeded further and information to this effect was given to concerned SHO.
33. PW11 HC Sunil deposed that on 22.07.2020, upon receiving rukka from Const. Balram sent by SI Shubham, he gone through the same and made his endorsement Ex.PW11/A on rukka. Thereafter, he registered present FIR. Copy of FIR Ex.PW11/B (OSR) and original rukka were handed over to Const. Balram for handing it over to SI Shubham for further investigation. He also issued certificate u/s 65B Indian Evidence Act Ex.PW11/C.
34. PW12 Ranjeet Pal deposed that he is running a photographer shop under the name and style of Ranjeet Pal Studio at Kharanga Main Road, Qutub Vihar Phase-1, Goyla Dairy. At the request of police official, he videographed the recovery proceedings and thereafter, handed over the video FIR No. 717/20. State Vs. Neetu.
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recording to IO in a DVD Ex.P-3. DVD was played in the Court and found containing two files bearing names "004.mp4" and "005.mp5". Videos shows recovery proceedings of weapon of offence of this case. PW12 identified the videos prepared by him.
35. PW13 HC Jai Bhagwan deposed that on 22.07.2020, on the instructions of IO Inspector Gyanender Rana, he got preserved dead body of Bhupender in mortuary of RTRM Hospital vide MLC No. 2534. He further deposed that on the direction of IO, he left the PS on government motorcycle bearing registration no. DL-1S-Z-5345 and provided/handed over copy of FIR to concerned Ld. MM, Joint CP, Western Range and DCP concerned.
36. PW14 HC Ram Swaroop and PW15 HC Jitender Kumar deposed that on 22.07.2020, at about 11.30 am, they were on patrolling duty and during patrolling, when they reached near Chhat Ghat nala, Chhawla, one person was in suspicious condition coming towards them. Some blood stains were visible on his clothes. On asking, he disclosed that he had killed his friend Bhupender and hide the dead body under garbage at a vacant plot, Goyla Dairy, Goyla Vihar, which is situated near his residence. That person further disclosed that he can show the place where he has hidden the dead body.
37. They further deposed that PW14 immediately passed said information to SHO Inspector Gyanender Rana and Duty Officer concerned. IO Inspector Gyanender Rana came at the spot. On asking, said person disclosed his name to FIR No. 717/20. State Vs. Neetu.
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police party as Neetu and thereafter, accused led police party to gali no. 7, Goyla Vihar, Goyla Dairy, near St. Thomas School, to a vacant plot and pointed out towards an abandoned room and told that he had hide the dead body of his friend there.
38. They also deposed that members of Crime Team were called at the spot by IO, which inspected the spot and dead body of a male person aged about 26-28 years was found under the garbage. There are several injury marks on his face and head and the dead body was in a pool of blood. Deceased was wearing blue colour pant and pink colour printed t-shirt. Spot was got photographed. Dead body was taken out from the garbage.
39. They further deposed that accused disclosed the name of deceased as Bhupender. Accused also informed that the deceased was living with him for last about 4-5 days at his house no. 23/23, gali no. 7, Goyla Vihar, Goyla Dairy, New Delhi. They reached at said residence, where IO made inquiry from public persons. Mahender owner of said house was called, who informed that deceased was residing with accused for last 4-5 days in his house and they both were doing labour job at his plot. Mahender further informed that accused and deceased used to drink and fighting with each other on previous night and he tried to make them understand.
40. They also deposed that SI Shubham came at the spot.
During inspection of the spot, blood sample in blood gauze piece, blood sample and blood earth control were collected FIR No. 717/20. State Vs. Neetu.
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by ASI Jai Bhagwan, Incharge, Mobile Crime Team, and thereafter, the same were handed over to SI Shubham, which he took into police possession, vide seizure memo Ex.PW8/A. They also deposed that from the spot, earth control garbage, which was lying near the dead body, earth control garbage mixed with blood lying near the dead body and blood stained jute bag lying near the dead body were separately sealed and taken into police possession vide seizure memo Ex.PW8/B.
41. They further deposed that SI Shubham prepared rukka Ex.PW8/C and got registered present FIR through Const. Balaram and thereafter, copy of FIR and original rukka were handed over to IO Inspector Gyanender Rana, who carried out further investigation. They also deposed that accused Neetu was arrested vide arrest memo Ex.PW8/F. Accused was personally searched vide personal search memo Ex.PW8/G. During investigation, accused made disclosure statement Ex.PW8/H. They also deposed that accused led police party to the bushes and got recovered one iron pipe with the help of which he killed the deceased. Said pipe was taken into police possession vide seizure memo Ex.PW8/D. Videography of recovery of the iron pipe was also got done. PW14 and PW15 identified dirty and muddy blackish jute bag Ex.P-1 and iron rod Ex.P-2.
42. PW16 HC Ashok Kumar deposed that on 27.08.2019, on the instruction of IO, he collected 15 sealed pulandas from the MHC(M) vide RC No. 164/21/20 Ex.PW16/A and deposited the same in FSL, Rohini. After depositing the same, he FIR No. 717/20. State Vs. Neetu.
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handed over copy of acceptance of acknowledgment Ex.PW16/B to the MHC(M).
43. PW17 HC Balram deposed that on 22.07.2020, upon receiving information that murder was committed at house no. 23/23, gali no. 7, Goyala Vihar, Goyala Dairy, he reached at the spot, where SI Shubham, Const. Jitender, Const. Ram Swaroop and Crime Team members met. A dead body whose name he came to know as Bhupender, aged about 28-30 years, was found lying in a room. There were many marks of injury on the face and head of the dead body. SI Shubham prepared a rukka and handed over him for registration of FIR and thereafter, he handed over original rukka alongwith copy of FIR to SI Shubham. Accused Neetu was arrested vide arrest memo Ex.PW8/F. At the instance of accused, one iron pipe i.e. weapon of offence was recovered from the bushes of the plot, which was taken into police possession vide memo Ex.PW8/D. Videography of spot and recovery of iron pipe was done. He got medically examined the accused at RTRM hospital vide MLC No. 2536/20 and exhibits were handed over by the doctors in sealed condition. He came back to PS and he handed over all the exhibits to the IO alongwith accused.
44. PW18 Renu deposed that in the year 2020, he was residing on rent in the house of Mahender Singh at gali no. 7, Goyla Vihar, Goyla Dairy, Delhi. Mahender brought two labour persons namely Neetu and Bhupender for the purpose of constructions and a room adjacent to her room was given to said two persons for residence by Mahender Singh. During FIR No. 717/20. State Vs. Neetu.
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rainy seasons of 2020, one day she came to know that Bhupender was murdered. Police came at the spot and apprehended Neetu. Neetu was handcuffed in police custody and he was telling that he had committed the murder of Bhupender.
45. During cross examination by ld. Additional PP for State, she deposed that the incident happened in the night of 21- 22.07.2020. When accused Neetu was quarreling with deceased Bhupender, Mahender tried to make them understand not to fight with each other and then Mahender left to his house. Accused lead police party for recovery of dead body of Bhupender from a nearby plot. She had seen dead body of Bhupender, who was having injury mark on face and head. She stated to police that accused Neetu told that he had a fight in the intervening night with Bhupender and at about 2.30 am, Neetu killed Bhupender with the help of iron rod by giving blows on his head and face. Her statement Ex.PW18/PX1 was recorded by police during investigation on 22.07.2020.
46. PW19 Dr. Uttam Kondle deposed that on 22.07.2020, at about 20:59 hours, he examined Neetu, who was brought for medical examination by Const. Balram. He sealed clothes of patient at the request of IO and prepared MLC No. 2536 Ex.PW19/A of said patient. Clothes after sealing were handed over to Const. Balram.
47. PW20 Inspector Gyanender Rana deposed about the investigation carried out by him in this case and proved various documents including seizure memo Ex.PW20/A of FIR No. 717/20. State Vs. Neetu.
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sealed pulanda containing blood stained clothes of accused, Form 25.35-B Ex.PW20/B and scaled site plan Ex.PX-6. He identified jute bag Ex.P-1, iron rod/pipe Ex.P-2, earth control garbage Ex.P-4, earth control garbage mixed with blood Ex.P-5 seized vide seizure memo Ex.PW8/B, earth control Ex.P-6, earth control stained with blood Ex.P-7 and blood Ex.P-8 seized vide seizure memo Ex.PW8/A, clothes of deceased Ex.P-9 seized vide seizure memo Ex.PW3/A, nail clipping of deceased Ex.P-10 seized vide seizure memo Ex.PW3/B, viscera of deceased Ex.P-11 seized vide seizure memo Ex.PW3/C, blood gauge of deceased Ex.P-12 seized vide seizure memo already Ex.PW3/D and one t-shirt Ex.P-13 and pant Ex.P-1 of accused, which he worn at the time of his arrest and same were handed over to him into a sealed pulanda seized by him vide Ex.PW20/A.
48. PW21 Inspector Pankaj Kumar deposed that on 14.05.2022 he filed supplementary charge-sheet Ex.PW21/A. During investigation, he collected FSL report Ex.PX-1 of the exhibits.
49. Accused has admitted following documents u/s 294 CrPC: -
(i) FSL report (running into 6 pages) as Ex.PX-1 (colly).
(ii) MLC and related documents (running into 4 pages) as Ex.PX-2 (colly).
(iii) GD Nos. 62A, 68A and 91A as Ex.PX-3 to 5.
(iv) Scaled site plan as Ex.PX-6.
(v) PM report alongwith related documents (running into 5 pages) as Ex.PX-7 (colly).
(vi) Dead body identification memo as Ex.PX-8.
FIR No. 717/20. State Vs. Neetu.
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50. After closing of prosecution evidence, separate statement of accused was recorded u/s 313 CrPC, wherein he denied all the charges against him. He also stated that he is innocent and has been falsely implicated in this present case because he is a poor person. He also stated that entire case as well as evidence has been created/manufactured at the behest of IO/police in order to frame him in this case.
51. Accused opted to lead defence evidence and has examined only one witness in his defence. The testimonies of defence witness alongwith its nature has been discussed briefly in the following paragraphs.
Chart of Witnesses Examined
DW No. DW Name Description
DW1 Sachin Kr. Patel Meteorologist-A, Regional
Meteorological Centre, India
Meteorological Department,
Lodhi Road, New Delhi.
Chart of Exhibited Documents
Exhibit No. Description of Document Proved By
Ex.DW1/A Authorisation letter to appear before the Court DW1
and depose
Ex.DW1/B Letter dated 08.07.2024 received in their DW1
office from the office of ld. counsel for accused requesting to provide weather data for 21.07.2020, 22.07.2020 and 23.07.2020 of Dwarka and Najafgarh areas in Delhi Ex.DW1/C Their letter no. RMCND-16015(12)/2/2024- DW1 RWFC-RMCND/77 dated 24.07.2024 pursuant to letter Ex.DW1/B Ex.DW1/D Cloud cover (in Okta) as mentioned in letter DW1 (colly) Ex.CW1/C, which can be interpreted based on FIR No. 717/20. State Vs. Neetu.
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the glossary of IMD, which is already available online
52. DW1 Sachin Kr. Patel deposed that he has been authorised to appear and depose before the Court vide letter Ex.DW1/A. He further deposed that letter dated 08.07.2024 (Ex.DW1/B) was received in their office from the office of Mr. Bharat Gupta, ld. counsel for accused, requesting to provide weather data for 21.07.2020, 22.07.2020 and 23.07.2020 of Dwarka and Najafgarh areas in Delhi. Pursuant to said letter, he issued letter no. RMCND-16015(12)/2/2024-RWFC-RMCND/77 dated 24.07.2024 (Ex.DW1/C) on behalf of Head RMC, New Delhi, wherein the data mentioned is based on the measurement and records of India Meteorological Department (hereinafter referred as IMD). The cloud cover (in Okta) as mentioned in said letter can be interpreted based on the glossary of IMD, which is already available online and is also on record as Ex.DW1/D (colly and running into 13 pages) and relevant portion is at point A on page no. 9.
53. Final arguments were advanced by Ms. Rajesh Kumari, ld.
Additional PP for State and Sh. Bharat Gupta, ld. counsel for accused.
54. Hon'ble Supreme Court of India in Judgment titled as "Sharad Bridhichand Sarda Vs. State of Maharashtra", (1984) 4 SCC 116, has laid down the five golden principles for appreciation of circumstantial evidence and has termed the same as Panchsheel of the Proof of Case based on FIR No. 717/20. State Vs. Neetu.
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circumstantial evidence. The said five golden principles are as follows: -
a. The circumstances from which the conclusion of the guilt is to be drawn should be and not merely 'may be' fully established.
b. The facts so established should be consistent only with the hypotheses of the guilt of accused, that is to say, they should not be explainable on any other hypotheses except that the accused is guilty. c. The circumstances should be of conclusive nature and tendency.
d. They should exclude every possible hypotheses except the one to be proved.
e. 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 probability the act must have been done by the accused.
55. Thus, before recording the conviction of accused the abovesaid five conditions must be satisfied. The prosecution has to establish its case on the basis of abovesaid five golden principles and to secure conviction of accused, the prosecution must fulfill the following requirements: -
(i) The circumstances from which the inference of the guilt of the accused is to be drawn must be firmly established.
(ii) The established circumstances must be of such definite tendency that points out towards the guilt of accused.
FIR No. 717/20. State Vs. Neetu.
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(iii) The chain of the circumstances must be so complete and there should not be any snap in the chain of circumstances.
(iv) The chain of circumstances must be so complete and incapable of any other hypotheses then that the guilt of the accused and same should also be inconsistent with the innocence of the accused and must exclude every other possible hypotheses except with the hypotheses pointing out towards the guilt of the accused.
56. The law relating to circumstantial evidence, as explained in several decisions including "Sharad Birdichand Sarda Vs. State of Maharashtra", AIR 1984 SC 1622, "Tanviben Pankajkumar Divetia Vs. State of Gujarat", (1997) 7 SCC 156, "Harishchandra Ladaku Thange Vs. State of Maharashtra", AIR 2007 SC 2957, and "Vithal Eknath Adlinge Vs. State of Maharashtra", AIR 2009 SC 2067, is fairly well settled.
57. Reference can be made to the case of "Sanatan Naskar & Another Vs. State of West Bengal", (2010) 8 SCC 249 , where it was observed as follows: -
"27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eyewitness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles FIR No. 717/20. State Vs. Neetu.
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in that regard."
58. In "Gagan Kanojia Vs. State of Punjab", (2006) 13 SCC 516, the Supreme Court opined: -
"9. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between 'may be true' and 'must be true'. Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to his guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on records and analyze and assess the same objectively."
59. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court held that it is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. It has been held that the facts so established should FIR No. 717/20. State Vs. Neetu.
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be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused.
60. It is settled law that suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.
61. The brief facts of the case as enumerated by the IO in the charge-sheet are that upon receiving of GD No. 0044A at 13.44.05 hours, it became known that accused Neetu was apprehended by the police official for the murder of deceased Bhupender. Thereafter, Crime Team was called at the spot for inspection. The Crime Team had inspected the spot and seized earth control garbage, which was lying near the dead body, earth control garbage mixed with blood lying near the dead body, jute bag stained with blood lying near the dead body vide seizure memo Ex.PW8/B and earth control, earth control stained with blood and blood lying near the place of occurrence, where accused murdered the deceased vide seizure memo Ex.PW8/A. The Crime Team FIR No. 717/20. State Vs. Neetu.
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had also taken the photographs, which are Ex.PW7/A-1 to Ex.PW7/A-38. At the same time, accused Neetu got recovered iron rod stained with blood from the bushes in a vacant plot seized vide seizure memo Ex.PW8/B. Thereafter, FIR was registered on 22.07.2020 at 16.34 hours. It is further stated that after the registration of FIR, the dead body was preserved in RTRM Hospital and scaled site plan were prepared i.e. Ex.PW8/E, Ex.PW2/D-1 and Ex.PX-6, accused Neetu was arrested and his disclosure statement was recorded. In the disclosure statement, it was recorded that the dead body and the weapon of offence were recovered at the instance of accused Neetu. Thereafter, statement of other witnesses namely Mahender and Renu were recorded by the police. It is further stated in the charge-sheet that in the presence of photographer HC Vikas weapon of offence i.e. iron rod was recovered from a room by accused Neetu and the same was seized. It is also stated that thereafter the dead body of deceased Bhupender was identified by his brother and brother-in-law, postmortem was conducted upon the same and the charge-sheet was filed u/s 302 r/w/s 201 IPC.
62. At the outset, it is most relevant to point out that the police had carried out faulty investigation in the present case. It is evident that no FIR was registered immediately upon receipt of GD No. 0044A at 13.44.05 hours and the FIR was came to be registered only at 4.34 pm. Before the registration of FIR, the weapon of offence was already recovered and seized vide Ex.PW8/D and the dead body was already FIR No. 717/20. State Vs. Neetu.
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recovered. After the registration of FIR, accused Neetu was arrested at 6.30 pm from Gali No. 7, Goyla Vihar, Goyla Dairy, New Delhi. Thereafter, his disclosure statement was recorded, which is Ex.PW8/H. In the disclosure statement, it is recorded that the dead body was already recovered by the police officials at the instance of accused Neetu and the weapon of offence i.e. iron rod can be recovered at the instance of accused Neetu. In pursuance of the disclosure statement, the iron rod was not recovered as is evident from the seizure memo Ex.PW8/D. In the seizure memo Ex.PW8/D, the inks in which case FIR No. 717/20 and DD No. 44A is written are different. DD No. 44A and the entire seizure memo is recorded with gel pen, whereas FIR No. 717/20 is recorded with ball pen, which clearly highlights that the seizure memo Ex.PW8/D was modified/altered by the police officials. In the charge-sheet, the IO has categorically stated that the iron pipe was recovered from the room, which was photographed by HC Vikas, however, as per the seizure memo Ex.PW8/D, the iron rod was recovered from the bushes in a vacant plot and not from the room. HC Vikas was examined by the prosecution as PW7. He in his cross examination has stated that no iron rod was recovered by the IO in his presence and IO had not told him to click photograph of any iron rod. This casts doubt upon the manner of investigation.
63. In the instant case before registration of FIR, the dead body was recovered. It is the case of the prosecution that the dead body was recovered at the instance of the accused Neetu.
FIR No. 717/20. State Vs. Neetu.
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However, in case of "Ramanand @ Nandlal Bharti Vs. State of UP", (2023) 16 SCC 512, it has been categorically held as under: -
"56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW−7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.
57. Let us see what has been exactly stated in the discovery panchnama (Exh.5) drawn on 24.01.2010. We quote the relevant portion as under:
"Today on 24.1.2010, the arrested accused Ramanand alias Nandlal Bharti son of Late Shri Gobre, resident of− Naamdar Purwa, Hamlet− Amethi, original resident of village− Basadhiya, Police Station− Isanagar, District− Lakhimpur Kheri has been taken out of the FIR No. 717/20. State Vs. Neetu.
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lock−up, taken in confidence and then interrogated by me− the Station House Officer Yogendra Singh before Hamrah S.S.I. Shri Uma Shankar Mishra, S.I. Shri Nand Kumar, Co. 374 Mo. Usman, Co. 598 Prabhu Dayal, Co. 993 Santosh Kumar Singh, Co. 394 Shrawan Kumar then he confessed the offence occurred in the incident and weepingly said in apologizing manner that, "I myself have committed this crime to get government grant for being a rich man and to marry Km. Manju D/o Kanhai, resident of Pakadiya, Police Station− Tambaur, District− Sitapur regarding whereof the detailed statement has been recorded by you. The baanka used in the incident and the pant−shirt, on which blood spilled from the bodies of deceased persons got stained and which had been put off by me due to fear, have been kept hidden at a secret place by me which I can get recovered by going there."
In expectation of recovery of murder weapon and blood−stained clothes, I−the Station House Officer Yogendra Singh alongwith aforesaid Hamrahis departed carrying accused Ramanand alias Nandlal Bharti by official jeep UP70AG0326 alongwith driver Raj Kishor Dixit for the destination pointed out by the accused, vide Rapat No.− 7 time 07.15..." [Emphasis supplied]
58. We shall now look into the oral evidence of the PW−7, Investigating Officer wherein, in his examination in chief, he has deposed as under:
"In January 2010 I was posted as Station House Officer, Kotwali Dhaurahara. On 22.1.10, I myself had taken the investigation of aforesaid case. On that day I had copied chik, rapat and recorded the statements of chik writer H. Constable Dhaniram Verma and complainant of the case. After recording the statement of complainant of the case Shambhu Raidas I inspected the occurrence spot on his pointing out and prepared the site plan which is present on record; on which Exhibit Ka−6 has been marked. And I had also recorded the statement of hearsay witnesses Ahmad Hussain and Nizamuddin. On 23.1.10, I recorded the statements of witnesses Kshatrapal, Rustam Raidas. On 24.1.10, I arrested accused Ramanand and recorded his FIR No. 717/20. State Vs. Neetu.
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statement and when he expressed that − he may get recovered the murder weapon used in the incident, I recovered the murder weapon baanka before the witnesses on his pointing out; which had been sealed−stamped at the spot and its recovery memo had been prepared at the spot itself, which is present on record as Exhibit Ka−5...."
[Emphasis supplied]
59. We shall also look into the oral evidence of the PW−6, Uma Shankar Mishra who at the relevant point of time was serving as a Sub−Inspector Chowki In−charge Bahjam, Police Station. It appears that the PW−6 had also participated in the proceedings of discovery panchnama. He has deposed in his examination in chief as under:
"On 24.11.2010, I was posted at Police Station− Dhaurahara. That day, Ramanand S/o Gobre Rio Naamdar Purwa, Police Station−Dhaurahara, domicile of village Basadhiya, Police Station− Isha Ganj, District− Kheri, the arrested accused of Crime No. 49/10 U/S 302 State versus Ramanand alias Nandlal Bharti, was taken out of male lock up by the then In−charge Inspector and followers S.I. Nand Kumar, Co. Mo. Usman, Co. Prabhu Dayal, Co. Santosh Kumar Singh and Co. Shravan Kumar, and interrogated by the Incharge Inspector in my presence, during which he confessed and told that he would get recovered the murder weapon used in the murder and his blood stained pant−shirt which he had kept hidden at a secret place. On this, expecting the recovery of murder weapon and blood stained clothes, the SHO along with followers and force, carrying accused Ramanand with him, departed on an official jeep ~ vide GD No. 7 time 7:15 a.m dated 24.01.2010. On the way, he picked up public witnesses Chhatrapal S/o Rameshwar and Pratap S/o Asharfi Lal, both residents of Naamdar Purwa, Hamlet− Amethi for the purpose of recovery."
[Emphasis supplied]
60. From the aforesaid two things are quite evident. In the original panchnama (Exh.5), the statement said to have been made by the accused appellant figures, however, in the oral evidence of the PW−7, investigating officer & PW−6, Sub−Inspector the exact statement has not been FIR No. 717/20. State Vs. Neetu.
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deposed, more particularly when it comes to the authorship of concealment. The contents of the panchnama cannot be read into evidence as those do not constitute substantive evidence.
61. Further, the examination−in−chief of the PW−6, Sub−Inspector and PW−7, investigating officer does not indicate that they were read over the panchnama (Exh.5) before it was exhibited, since one of the panch witnesses was not examined and the second panch witness though examined yet has not said a word about the proceedings of the discovery panchnama. Everything thereafter fell upon the oral evidence of the investigating officer and the Sub−Inspector (PW−6).
62. In the aforesaid context, we may refer to and rely upon the decision of this Court in the case of Murli v. State of Rajasthan reported in (2009) 9 SCC 417, held as under:
"34. The contents of the panchnama are not the substantive evidence. The law is settled on that issue. What is substantive evidence is what has been stated by the panchas or the person concerned in the witness box......."
[Emphasis supplied]
63. One another serious infirmity which has surfaced is in regard to the authorship of concealment by the person who is said to have discovered the weapon.
64. 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 information; and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah v. The State of Maharashtra: AIR (1976) SC 483 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 − Earabhadrappa v. State of Karnataka: AIR (1983) SC 446"
FIR No. 717/20. State Vs. Neetu.
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65. 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, Paragraph−71 explains the position of law as regards the Section 27 of the Evidence Act:
"71. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category 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 guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional 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 a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft."
[Emphasis supplied]
66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....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 as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 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, FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 35 of 56.
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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."
67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in 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 knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived 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.
FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 36 of 56.
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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.
69. In Dudh Nath Pandey v. State of U. P., AIR (1981) SC 911, 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 of the weapon may, at the best, prove the appellant's knowledge as to where the weapon was kept.
70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the High Court was not justified in placing reliance upon the circumstance of discovery of weapon.
71. If it is the case of the prosecution that the PW−2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW−2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW−6 and PW−7 respectively.
72. In the aforesaid context, we may also refer to a decision of this Court in the case of Bodhraj alias Bodha and Others v. State of Jammu and Kashmir reported in (2002) 8 SCC 45, as under:
"18. .....It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 37 of 56.
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committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non−inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] is the most−quoted authority for supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra v. Damu Gopinath Shinde [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) No FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 38 of 56.
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doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."
[Emphasis supplied]
73. Mr. Upadhyay, the learned counsel for the State would submit that even while discarding the evidence in the form of discovery panchnama the conduct of the appellant herein would be relevant under Section 8 of the Evidence Act. The evidence of discovery would be admissible as conduct under Section 8 of the Evidence Act quite apart from the admissibility of the disclosure statement under Section 27 of the said Act, as this Court observed in A.N. Venkatesh vs. State of Karnataka, (2005) 7 SCC 714:
"9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400] . Even if we hold that the disclosure statement made by the accused−appellants (Exts. P−15 and P−16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section
8....."
[Emphasis supplied]
74. In the aforesaid context, we would like to sound a note of caution. Although the conduct of an accused may FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 39 of 56.
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be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. What we are trying to convey is that the conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction.
75. Thus, in view of the aforesaid discussion, we have reached to the conclusion that the evidence of discovery of the weapon and the blood stained clothes at the instance of the accused appellant can hardly be treated as legal evidence, more particularly, considering the various legal infirmities in the same."
64. In this case, the dead body and the weapon of offence were already recovered and thereafter, the disclosure statement of the accused was recorded, which means that the weapon of offence was not recovered as a fact discovered after recording of the disclosure statement and, therefore, the disclosure statement is inadmissible in evidence in its entirety.
65. The present case is based on circumstantial evidence and, therefore, it becomes pertinent to evaluate the incriminating circumstances highlighted by the prosecution. The incriminating circumstances are: -
(A) Last seen together theory.
(B) Motive.
(C) Disclosure statement of accused Neetu. (D) Scientific evidence.
66. Now, this Court shall evaluate the aforesaid incriminating evidence one by one.
(A) Last seen together theory.
FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 40 of 56.
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67. As per the case of prosecution, the deceased was last seen in the company of accused Neetu and for that purpose, prosecution has relied upon the testimony of PW2 Mahender and PW18 Renu. However, both the witnesses i.e. PW2 Mahender and PW18 Renu have not supported the case of prosecution. PW2 Mahender had denied that the deceased had abused the accused after consuming liquor and a fight broke between them due to the said reason. In his cross examination, he has stated that he is not aware about any quarrel or fight between the accused and the deceased and as per him both the accused and the deceased were having cordial relations. Similarly, PW18 Renu in her testimony has stated that no quarrel has been taken place between the accused and the deceased. The abovesaid testimonies by PW2 Mahender and PW18 Renu disproves the case of prosecution. Thus, the last seen theory propounded by the prosecution stands failed on account of the testimonies of PW2 Mahender and PW18 Renu. Moreover, the FSL report Ex.PX-1 (colly) with respect to the viscera of deceased Bhupender does not support the case of the prosecution as ethyl alcohol was not detected. Thus, the story of the prosecution fails even on the account of deceased Bhupender being intoxicated.
(B) Motive.
68. Motive is relevant u/s 8 of Indian Evidence Act. Motive is a force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 41 of 56.
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previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case. The Hon'ble Supreme Court of India in judgment titled as "Sheo Shankar Singh Vs. State of Jharkhand & Another", (2011) 3 SCC 654, observed as under: -
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 42 of 56.
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69. Similarly, Hon'ble Supreme Court of India in judgment titled as "Chunni Lal Vs. State of Uttar Pradesh", (2010) SCC 496, observed as under: -
"12. This in our estimation is the reason and motive for the crime and not the one which was advanced by the Counsel appearing for the appellant, or by the time the incident had taken place, the deceased had legalized his relationship and married the said Chandrakaliya thereby giving legal status to PW-1 and PW-2 as his sons. In that situation, there was no possibility at all of the appellant inheriting the property of his uncle and therefore the plea taken by the appellant regarding motive appears to be without merit. Rather on the other hand, we find clear motive on the part of appellant/accused committing the murder of his uncle".
70. As per the case of prosecution, the accused Neetu had hit the deceased Bhupender because deceased Bhupender after intoxication had abused accused Neetu and in a fit of anger, accused Neetu had hit deceased Bhupender with iron rod. The prosecution is unable to establish the motive as PW2 Mahender and PW18 Renu have not supported the case of the prosecution. PW2 Mahender had deposed as under: -
"I am not aware as to whether there was any quarrel or fight happened between Neetu and Bhupender. In my knowledge, both were having cordial relations."
71. Similarly, PW18 Renu had turned hostile and had stated that "No quarrel had taken place in my presence between the accused and the deceased".
72. Therefore, it remains unclear if at all any fight had taken place between the deceased Bhupender and the accused Neetu. There is nothing on record to presume that the deceased Bhupender was drunk and had abused accused FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 43 of 56.
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Neetu and thereafter, accused Neetu had attacked deceased Bhupender. Thus, the prosecution has measurably has failed to prove motive for commission of offence by accused Neetu.
(C) Disclosure statement of accused Neetu.
73. Recovery of weapon of offence and other incriminating material at instance of accused person on the basis of disclosure statements made by accused person is an important circumstantial evidence. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle u/s 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non- inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused. The Hon'ble Supreme Court of India in Judgment titled as "Pawan Kumar @ Monu Mittal Vs. State of UP & Another", (2015) 7 SCC 148, has held that: -
"the facts discovered u/s 27 of Indian Evidence Act embraces the place from which object was produced and FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 44 of 56.
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knowledge of the accused as to it and if the accused are denying their role without proper explanation as to the knowledge about the incriminating material recovered on the basis of their statements in police custody, would justify the presumption drawn by the Courts below as to the involvement of the accused in the Crime".
74. It is a settled principle of law that a confessional statement made to a police officer is not admissible in evidence and only the discovery led by such statement is admissible. This was held by the Hon'ble Supreme Court of India in "Aghnoo Naghesia Vs. State of Bihar", AIR 1966 SC 119, wherein it was held as under: -
"A little reflection will show that the expression "confession" in ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by ss. 24. 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 45 of 56.
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s. 25 is lifted by.."
75. It will be useful to advert to the exposition in the case of "Vasanta Sampat Dupare Vs. State of Maharashtra", (2015) 1 SCC 253, in particular, paragraphs 23 to 29 thereof. The same read thus: -
"23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67 has held thus: (IA p. 77) "... 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 as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 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."
76. In "Mohd. Inayatullah Vs. State of Maharashtra", (1976) 1 SCC 828; (1976) 1 SCR 715, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that: (SCC pp. 831-32, paras 11-13) "11. Although the interpretation and scope of Section 27 FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 46 of 56.
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has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
'27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.'
12. The expression 'provided that' together with the phrase 'whether it amounts to a confession or not' show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only 'so much of the information' as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word 'distinctly' means 'directly', 'indubitably', 'strictly', 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly relates to the fact thereby discovered' is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 47 of 56.
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13. At one time it was held that the expression 'fact discovered' in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, AIR 1929 Lah 344; Ganu Chandra Kashid v. Emperor, AIR 1932 Bom 286). Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Pulukuri Kotayya v. King Emperor; Udai Bhan v. State of U.P., AIR 1962 SC 1116; (1962) 2 Cri LJ 251; 1962 Supp (2) SCR 830)." (emphasis in original)
77. In "Aftab Ahmad Anasari Vs. State of Uttaranchal", (2010) 2 SCC 583, after referring to the decision in Pulukuri Kotayya, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the Court opined that (Aftab Ahmad Anasari case, SCC p. 596, para 40) "40. ... the part of the disclosure statement, namely, that the appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the appellant pursuant to the voluntary disclosure statement made by the appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits."
78. In "State of Maharashtra Vs. Damu", (2000) 6 SCC 269, it has been held as follows: (SCC p.283, para 35) "35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 48 of 56.
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Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
79. The place of recovery is a public place but it is a vacant plot. The law that deals with recovery of evidence from open place dealt by the Hon'ble High Court of Delhi in "Dinesh Kumar Mathur Vs. State", Crl. A. No. 696/2012", as under:-
"31. The second limb of the argument of Ms.Dubey is that the recovery was from an open area visible to the naked eye and hence, outside the contours of Section 27 of the Evidence Act. In this regard, we may usefully refer to the judgment of the Apex Court in State of H.P. v. Jeet Singh, (1999) 4 SCC 370 wherein recovery was effected from tobacco bushes, heap of rubbish situated in the compound of the residence of the accused and his cowshed and the High Court had repelled the circumstance inter alia as recoveries made were "open and accessible to others"; this was reversed by the Supreme Court observing as under: -
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered.
FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 49 of 56.
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The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
(Emphasis Supplied) [See also Titu v. State, ILR (2007) 1 Del 990 (paragraphs 28 and 29)] 60.4.5 Similarly, the Supreme Court in State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 found the recovery of a blood stained grinding stone from tall grass from a place very close to the house of the accused/respondent not to be from an open place as "[u]ntil they were disinterred, at instance of Respondent, their hidden state had remained unhampered."
In Ibrahim Musa Chauhan @ Baba Chauhan v. State of Maharashtra, 2013 (3) SCALE 207 the Supreme Court found the recovery of a plastic bag containing hand grenades from a heap in which lay broken tiles was not from an open place. The relevant portion reads as under: -
"133. Undoubtedly, the appellant's disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden."
(Emphasis Supplied) In a recent judgment, a coordinate bench of this Court, of which one of us (G.S. Sistani, J.) was a member, in Jite v. State, MANU/DE/ 1791/2017 had repelled the submission that the recovery of the weapon of offence, i.e. dagger, was doubtful as being recovered from a park allowing access to the public in general, by finding that as the dagger was concealed in a heap of construction material and the same was recovered on the very next day, it could FIR No. 717/20. State Vs. Neetu.
PS Chhawla. Page No. 50 of 56.
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not be said to have been effectuated in an open and accessible place.
Coming to the case at hand, we find the recovery of the blade of the darati to be reliable. The Investigation Officer (PW-27) stated that the kabristan remains closed and not in use and hence, it cannot be said that the area was open or accessible. Be that as it may, all the three witnesses to the recovery (PW-10, 21 and 27) have testified that the recovery was effected from a polythene bag concealed amongst the roots of a bargad (banyan) tree and only part of the polythene was visible from outside. In such circumstances, the recovery cannot be said to be from an open area visible to the naked eye. As long as the polythene remained disinterred, its hidden state continued and its recovery remains inside the purview of Section 27 of the Evidence Act."
80. The similar principle has been laid down in "State of Maharashtra Vs. Suresh", (2000) 1 SCC 471, "State of Punjab Vs. Asar Mohammad & Others", (2019) 12 SCC 253, "Aftab Ahmad Anasari Vs. State of Uttaranchal", (2010) 2 SCC 583, "Bhagwan Dass Vs. State (NCT of Delhi)", (2011) 6 SCC 396, "Manu Sharma Vs. State (NCT of Delhi)", (2010) 6 SCC 1, and "Rumi Bora Dutta Vs. State of Assam", (2013) 7 SCC 417.
81. This Court has already discussed in above paragraphs that the disclosure statement of the accused Neetu is entirely inadmissible in evidence and cannot be relied upon. There are contradictions in recovery of weapon of offence i.e. iron rod. In the disclosure statement of accused Neetu, it is mentioned that iron rod can be recovered by him when the iron rod was already recovered as is evident from Ex.PW8/B. The iron rod was never recovered in pursuance of disclosure statement but in fact have been recovered much before the registration of FIR, which casts doubt as to FIR No. 717/20. State Vs. Neetu.
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the veracity of recovery proceedings as per the mandate of Ramanand (supra). Accordingly, the disclosure statement cannot be relied upon.
(D) Scientific evidence.
82. As per Ex.PX-1 i.e. FSL result of biological examination, Ex.12 i.e. blood stained gauze cloth piece of deceased was found to be similar with the DNA profile generated from source Ex.7 i.e. iron pipe, Ex.8a i.e. t-shirt of accused, Ex.8b i.e. pants/jeans of accused and Ex.10 and Ex.11 i.e. nail clippings of deceased.
83. In the instant case, the scientific evidence i.e. Ex.PX-1 points towards the guilt of the accused Neetu, however, the same cannot be relied upon for the reason that the iron pipe was recovered before recording the disclosure statement of accused Neetu and whether the same was recovered at the instance of Neetu or not is itself disputed. There was no public witness at the time the said recovery was made. Accordingly, the recovery done by the police officials is not as per the mandate of law as discussed in Ramanand (supra).
84. Similarly, it cannot be said with certainty that the blood allegedly found on the clothes of the accused was planted or was present because of the commission of offence by accused Neetu. PW2 Mahender during his cross examination has deposed as under: -
"Police came to my house with accused Neetu at about 8.30 am. At that time, Neetu was sitting in police van and he was handcuff. Police told me that a murder has taken place in your house as told by Neetu to them as such they came to make inquiry from me. ... ... ... As far as I remember, Neetu was wearing a jeans on that day. After recovery of dead body, me and Neetu were again taken to FIR No. 717/20. State Vs. Neetu.
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PS. I did not notice any blood stains in premises 23/23. I did not notice any blood on the clothes of Neetu."
85. This clearly means that no blood was found present on the clothes of accused Neetu at the time the police was making the investigation. PW19 Dr. Uttam Kondle in his cross examination has categorically stated that "All observations with respect to clothes of patient Neetu are stated in MLC Ex.PW19/A. It is correct that the MLC does not states that there was blood on the clothes of the accused". This again raises a doubt on the version of prosecution that the blood stains were present on the clothes of the accused. In this background, the scientific evidence becomes less reliable and conviction cannot be based upon the same.
86. Applying the law laid down by the Hon'ble Supreme Court of India in Sharad Birdichand Sarda (supra), this Court is of considered opinion that prosecution has failed to prove the circumstances from which the guilt of accused can be established. The fact established by the prosecution are not consistent with the hypotheses of the guilt of accused and the circumstances are not conclusive in nature. The chain of circumstances proved by the prosecution is not complete to prove that in all probabilities the alleged offences have been committed only by the accused and none else.
87. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
FIR No. 717/20. State Vs. Neetu.
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88. The Hon'ble Apex Court in "Rang Bahadur Singh Vs. State of UP", AIR 2000 SC 1209, has held as follows: -
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive lib- erty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
89. In yet another decision in "State of UP Vs. Ram Veer Singh & Another", 2007 (6) Supreme 164, the Hon'ble Apex Court has held as follows: -
"The golden thread which runs through the web of admin- istration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscar- riage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really com- mitted any offence or not."
90. The burden of proof in a criminal trial never shifts and it is always the burden of prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence produced before Court. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of accused, charged with the commission of a crime, a criminal Court has to ensure that facts constituting such crime are proved FIR No. 717/20. State Vs. Neetu.
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beyond the scope of any reasonable doubt. Every case in the final analysis would have to depend upon its own facts and merits. Definite doubts or lacunae in the case of the prosecution may result in benefit of doubt being given to the accused and consequential acquittal.
91. As far as the present case is concerned, as already noted the same is based on circumstantial evidence and it is settled principle of law that in a case which is hinged upon circumstantial evidence complete chain of circumstances has to be spelt out by the prosecution and even if one link in the chain is either missing or broken, the accused must get the benefit thereof. In the considered opinion of this Court, none of the circumstances relied by the prosecution have been proved beyond the standard of reasonable doubt and thus the accused who has faced trial is entitled for benefit thereof.
CONCLUSION
92. In the light of above discussions, it is held that prosecution has miserably failed to prove the circumstances that would lead to the only hypothesis of the guilt of the accused Neetu.
93. It is, therefore, held that prosecution has failed to establish charge against accused. Accordingly, accused Neetu stands acquitted in this case. His personal bond, if any, is canceled and surety, if any, is discharged. Documents, if any, be returned to the surety. Case property, if any, be released to rightful owners. Accused is directed to furnish bonds in terms of Section 437-A CrPC/481 BNSS in the sum of Rs.10,000/- within one week from today.
FIR No. 717/20. State Vs. Neetu.
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94. File be consigned to record room after due compliance.
(SHIVALI BANSAL) Announced in the open ASJ-02, DWARKA COURTS, Court on 13.04.2025. S-W DISTRICT, NEW DELHI FIR No. 717/20. State Vs. Neetu.
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