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[Cites 6, Cited by 0]

Delhi District Court

State vs . on 22 March, 2011

   IN THE COURT OF SH. RAKESH TEWARI  ASJ­VI(OUTER), 
                 ROHINI COURTS, DELHI

SC NO.229/10
FIR NO. 611/06
U/S 302/363 IPC
PS S.P. Badli
Unique Case ID No. :02404R0437132006

              State 

               Vs. 

Surender @ Sunder s/o Sh. Raja Singh

r/o  H.No. K­600, Gali No.6, Khadda Colony,

Kushak Road, Swaroop Nagar, Delhi.


Date when committed to the court of Sessions :17.11.2006
Date when case reserved for judgment        : 11.03.2011
Judgment pronounced on                        : 22.03.2011

JUDGMENT:

1. The case of the prosecution in brief is that on 15.07.2006, one Ramesh Jaiswal came to the PS and got recorded DD No.90B regarding the missing of his son namely Vishal aged about 4 years from 7.30 p.m on the said day but did not raise any suspicion over any person and the said DD was handed over for inquiry to ASI Kuldeep Singh, who made efforts to trace out the said missing boy through various channels.

SC No.229/10 Page 1/41

2. On 19.07.2006, said Ramesh Jaiswal again came to the PS and got recorded his statement to the effect that he was residing at K­ 600, Gali No.6, Khadda Colony, Swarup Nagar, Delhi, and was running a Tea stall at Transport Nagar and his said son, who was missing from the said date and time, was playing outside the house and he raised a suspicion that some unknown person might have kidnapped his son and on the basis of the said statement, the FIR u/s 363 IPC was got registered at the PS.

3. On the very said date i.e 19.07.2006, at about 1.50 p.m, an information vide DD No.44B was received at the PS that hand and legs of a boy were visible inside a well near H.No. K­346, Gali No.5, Kushak Road, Swarup Nagar, which was handed over to the said ASI Kuldeep Singh, who reached the said well where Ct. Rajbir also reached and at the said spot the said complainant Ramesh Jaiswal, his wife Smt. Maha Laxmi, one Surender Prajapati and Rakesh Aggarwal were also present besides a crowd of the people. The said ASI noticed the dead body of a child floating on the surface of the water inside the well and Ct. Rajbir was sent inside the well with the help of ladder who took out the dead body with the help of rope and basket and the said dead body of the child was identified by said complainant as that of his son Vishal and thereafter the ASI prepared the rough site plan and called the crime team and photographer at the spot and the photographs of the spot were taken and thereafter the dead body was removed to mortuary of BJRM SC No.229/10 Page 2/41 hospital, Jahangir Puri, Delhi, in the custody of Ct. Ajay and the autopsy was got conducted on the dead body and the viscera of the deceased was preserved.

4. During the investigation, the ASI came to know that one Imam namely Shabbir Raza of Madina Mosque situated at Gali No.2, Khadda Colony had informed the wife of the complainant namely Smt. Maha Laxmi that her son namely Vishal was lying inside the well behind her house and that the accused Surender @ Sunder had made an extra judicial confession to said Imam Shabbir Raza to the effect that the accused took the said child Vishal on the pretext of purchasing corn for him and pushed the child inside the well on 15.07.2006 and he did it to take revenge from his mother but the said Imam did not take the name of the accused Surender while informing regarding the dead body of the child in the well to his mother and after this information all the said persons had reached to the said well and found the dead body of the child inside the well and thereafter the complainant asked his neighbour namely Surender Prajapati to call the police, who gave the information to the Police Control Room from his mobile phone no.9811091210 and the PW Banwari Lal had also last seen accused Surender on 15.07.2006 at about 7.30 p.m along with the deceased child going towards the temple situated near the said well and thus, Section 302 IPC was added in the case and investigation was handed over to the SHO of the PS who further recorded the statement of the complainant to the SC No.229/10 Page 3/41 effect that he had taken a loan of Rs.20,000/­ from the accused and that his wife Smt. Maha Laxmi got recorded her statement to the effect that accused was having a bad eye on her and he made advances towards her due to which the accused was scolded by her and on 20.07.2006, at the pointing out of the complainant the accused was arrested from Railway Station S.P. Badli and his disclosure statement was recorded and he pointed out the place of occurrence. The scaled site plan was got prepared, the PM report was obtained on which the final opinion was kept pending till the chemical analysis report of the viscera of the deceased is received, the charge sheet was filed and subsequently the CFSL result was also placed on record.

5. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 25.07.2007, framed charges against the accused u/s 364/302 IPC, to which he pleaded not guilty and claimed trial.

6. The prosecution, in order to prove its case, has produced as many as 17 witnesses which have been discussed below.

7. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating evidence against him as false and did not prefer to lead any defence evidence.

8. I have heard Ld. APP for the state, Sh. S.P. Dinkar, Advocate for the accused and perused the record.

SC No.229/10 Page 4/41

9. PW1, the complainant Ramesh Jaiswal, deposed that on 15.07.2006, between 1­2 p.m, his son Vishal aged about 4 years was playing in front of his residence but he did not come back to the home and that they started searching for him but the said son could not be found and that he lodged a report with the police at about 1 a.m regarding missing of his son which is Ex.PW1/A and that on 19.07.2006, he along with his wife Maha Laxmi was sitting at the shop of Rakesh Aggarwal situated at Dharamshala Road, Swarup Nagar, when he received a call from Maulvi Shabbir Raza who informed that his son would be found and asked him to search for his son in the well situated behind his house and that he along with Rakesh Aggarwal reached near the well and with the help of bamboo he removed the garbage lying in the well and saw the chappal of his son and also saw his both hands and legs pointing upwards and that he informed his neighbour Surender, who made a call to the police on phone no.100 and that body of his son was taken out from the well with the help of a basket and a rope and the police took the dead body of his son to the hospital and on the next day he identified the dead body of his son and his statement to that effect is Ex.PW1/B and after postmortem examination the dead body of his son was handed over to him vide receipt Ex.PW1/C.

10. PW1 further deposed that on 19.07.2006, IO called the crime team at the spot and took the photographs of the dead body of his son and on 20.07.2006 he had joined the investigation along with SC No.229/10 Page 5/41 SHO, Ct. Rajbir and ASI Kuldeep Singh and accused present in court was arrested from Railway Station of Badli vide memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E and accused made a disclosure statement which is Ex.PW1/F and accused also pointed out the place where he had thrown his son in the well vide memo Ex.PW1/G and he identified the black colour piece of undergarment of his son Vishal and further deposed that accused was his tenant and was living in his house about one year prior to the incident and that he had taken Rs.20,000/­ from accused about 4/5 months prior to the incident out of which Rs.15,000/­ remained balance towards him (the witness) at the time of incident and that police took the photographs of the dead body of his son and of the spot which are Mark A1 to A6.

11. In his cross examination on behalf of the accused, he replied that on 15.07.2006, he came to know about the missing of his son at around 8 p.m when he was present at his shop and came back to his house at around 8.15 p.m. He admitted that accused Surender was also with them when they were searching for the missing boy. He further replied that he lodged a report with the police about missing of his child on 15.07.2006 at around 11.30 p.m. He further answered that Maulvi Shabbir Raza told him on 19.07.2006 to check the well and thereafter he came to know regarding the dead body of his son in the well and at that time accused Surender was not with him and one Rakesh Aggarwal was with him. He further SC No.229/10 Page 6/41 replied that on 15.07.2006 his brother in law Banwari, who came at about 7 or 7.30 p.m, visited his house and went back at around 9 p.m. He admitted it as correct that prior to the incident in question he and his family was having good relations with the accused. He further admitted that he and his wife had taken a loan of Rs.20,000/­ prior to the incident from the accused Surender for purchasing a plot and he had repaid only Rs.5,000/­ till date to the accused and Rs.15,000/­ was balance. He further replied that he had not stated to the police in his statement that a sum of Rs.15,000/­ remained to be paid by him to the accused. He denied the suggestion that his wife Smt. Maha Laxmi was having illicit relations with the accused. He further denied the suggestion that on this account he used to remain annoyed and inimical against accused and was searching for a chance to falsely implicate the accused in any case. He further replied that at the time of arrest of the accused no public person gathered there at the Railway Station. He further replied that his tea stall at Sanjay Gandhi Transport Nagar was situated at a distance of 3½ kms from his house and he used to go there on his cycle. He further answered that Banwari, his brother in law, resided near Bhajan Pura, Trans Yamuna area, who used to visit his house after 10 or15 days. He further replied that Banwari himself did not meet him but his wife only told him that Banwari had come. He further answered that before he reached his house on 15.07.2006, Banwari had already left. He further admitted that Banwari did not tell SC No.229/10 Page 7/41 anything to him that he had seen accused Surender going along with Vishal nor his wife told him anything in this regard. He further answered that on 16.07.2006, at around noon time, he told Banwari on phone that Vishal was missing. He further answered that Banwari did not come to his house and Banwari did not tell him that he had seen accused Surender going along with Vishal and that thereafter neither on 16.07.2006 or 17.07.2006 or 18.07.2006 Banwari ever told them that he had seen accused Surender going along with Vishal on the evening of 15.07.2006. He further replied that prior to 20.07.2006, when Banwari allegedly told his wife that he had seen accused Surender going along with Vishal, neither he nor his wife were aware about the involvement of the accused Surender in this case. He further replied that Maulvi Shabbir Raza also did not tell them prior to making the statement before the police that accused Surender had disclosed to him about his involvement in the offence. He admitted it as correct that except the statement of Mohd. Shabbir Raza and Banwari, he had no reason to believe the involvement of accused Surender in the present case. He further replied that his other son namely Sachin was aged about 7 years at the time of incident and yet another son Nitin was aged about 5 years at the time of incident. He admitted it as correct that his children along with other children in the locality used to play. He further admitted it as correct that children of the area do go to the said bagh where the well was situated to play. He further answered SC No.229/10 Page 8/41 that besides his family, his younger sister namely Pooja aged about 16­17 years at that time, was also residing with them and that his sister Pooja went to the said bagh where the well was situated to look out for Vishal but he (the witness) himself did not go there.

12. In his further cross examination, he replied that accused demanded back his money in March/April, 2006, when he was going to his village and at that time he had given him Rs.1500/­ and told him that he would repay the balance amount also and that upon this accused did not raise any dispute with him and rather agreed to his request. He further answered that accused did not ask him his balance money after returning to his house thereafter but he was no longer having any job, so he (the witness) provided him with handcart, cylinder etc for selling jalebi and the accused used to sell jalebi from 2.30 p.m till 9.10 p.m just outside their gali and during the time of incident, accused was again unemployed as he had stopped his said work of selling jalebi but the accused did not ask his money back again. He further answered that from 15.07.2006 till 18.07.2006, when accused assisted him right from morning till evening in tracing out his son Vishal, he did not have any suspicion upon him either from his talks or from his behaviour. He further replied that there was no parapet wall at the mouth of well but there were thorny bushes at the mouth of the well as put by the public and that the said well was not in use. He further replied that there was a small temple nearby the well and people used to throw garbage SC No.229/10 Page 9/41 inside the well. He denied the suggestion that Vishal, of his own, fell down in the well and again volunteered that as there were thorny bushes on the mouth of the well and thus, the said child could not have fallen down of his own. He denied the suggestion that in order to avoid repayment of Rs.20,000/­ to the accused and on account of illicit relations of the accused with his wife, he falsely implicated the accused in this case.

13. PW3 Mohd. Shabbir Raza deposed that on 15.07.2006, he was residing at Madina Mosque, Gali No.2, Khadda Colony, Kushak Road, Swarup Nagar, Delhi, and was working as Imam for the last about 10 months and that he was also working as Imam in the said Masjid in the year 1996­97 and that on 15.07.2006, Ramesh (the PW1), his wife Maha Laxmi along with accused Surender, present in court, in search of the child of Ramesh and Maha Laxmi namely Vishal, aged about 4 years, had come to him and he told them that he did not see the child and thereafter they left the premises. He further deposed that on 19.07.2006, all the aforesaid along with one more lady came to him again at about 8.30 a.m in search of the said child Vishal and asked him to tell about the whereabouts of the child through astrology but he showed his inability and advised them to contact Naeem Baba at Azadpur, Masjid Kabristan Wali, Delhi, to know about the whereabouts of the child and thereafter they left his premises and went away. He further testified that on the same day i.e 19.07.2006, accused Surender came to him alone and asked him SC No.229/10 Page 10/41 about the whereabouts of the child and when he saw his (accused's) face, he found that accused Surender was in fear and he suspected him that the accused would be knowing about the whereabouts of the child and on this accused told him as to why he (accused) be implicated. He further deposed that he again reiterated that accused Surender was knowing the whereabouts of the child and on this accused told him that he had thrown the alive child in the well behind the house near the temple in the fields on 15.07.2006 and accused further told him that he could not see the miserable condition of the parents of the child, therefore, he was disclosing all the things to him and that accused further told him not to disclose his name to anyone and asked him to tell the name of some other person, if inquired from him. He further deposed that on 19.07.2006 itself, he was to go somewhere for some work and in the way at the tea shop, parents of the child Vishal and one old lady met him and he told them that the child was lying in the well behind the house near the temple in the fields and asked them to trace the child in the well and thereafter he went away. He further testified that on 20.07.2006 police officials came to him and recorded his statement and he told the police that the accused Surender had committed the murder of child Vishal after throwing him in the well and that the accused admitted his guilt before him.

14. In his cross examination on behalf of the accused, PW3 replied that Maha Laxmi and Ramesh were not known to him prior SC No.229/10 Page 11/41 to 15.07.2006 but he knew accused Surender prior to 15.07.2006 as he came to him for getting some Tabiz (a device in the form of locket given by a sorcerer) from him. He further answered that on 15.07.2006 he came to know about the missing of the child Vishal at about 8.30 p.m when the parents of the child along with accused came to him for searching the child and at that time he was alone in the Masjid and that he was doing the work of preparing Tabiz for the last about ten years. He further replied that even after accused had told him about his involvement in the present incident, he did not inform the matter to the police but he informed about it to the parents of the missing child. He further replied that he himself did not go to the well to check the said information given by the accused. He admitted it as correct that his statement was recorded at the PS but he again said that it was recorded in the room of his Masjid. He further answered that he had not seen the said well ever. He further replied that neither he had asked accused Surender as to why he did so nor the accused told him any reason for his said act of killing Vishal. He further replied that he had no knowledge about some illicit relations between the accused and mother of the child nor he had any knowledge regarding loan of Rs.20,000/­ given by the accused to the parents of the deceased child.

15. PW4 Surender Prajapati deposed that he was residing in Gali No.5, Swarup Nagar at H.No. K­506 and at the corner of the gali he was having his office of property dealer and that on 19.07.2006 at SC No.229/10 Page 12/41 about 1.30 p.m, complainant Ramesh Jaiswal, whose son was missing for the past few days, came to his office and told him that the dead body of his son was lying in the well near the temple in the fields behind their colony and he accordingly informed this to the police at phone number 100 through his mobile phone no.9811071210 and along with the police went there where one body of a child was lying in the well which was taken out by the police and was subsequently sent for autopsy to BJRM hospital mortuary.

16. In his cross examination, PW4 replied that he had good relations with complainant Ramesh Jaiswal and that the well was about 15­16 hundred feet away from his office and that a large number of persons were with them when they had gone to the well and that he had made the phone call to the police even before looking at the body himself in the well and that only Ramesh Jaiswal came to his office and told him about the same. He further replied that he knew accused Surender for the past about 2½ years as he was a tenant in the house of Ramesh Jaiswal. He further answered that he never heard any complaint against the behaviour of the accused Surender nor Ramesh ever told him anything against his tenant accused Surender.

17. PW5 Banwari Lal deposed that complainant Ramesh Jaiswal was his brother in law and his wife Maha Laxmi was his sister and their son Vishal was kidnapped and was subsequently found dead SC No.229/10 Page 13/41 and he identified his dead body at BJRM hospital mortuary and that IO had recorded his statement to that effect which is Ex.PW5/A. He further deposed that accused Surender, present in the court, was residing as a tenant on the first floor of the house of his sister Maha Laxmi and his sister had three children including Vishal who was aged about 4 years in the year 2006. He further testified that on 15.07.2006, it was a Saturday and at around 5.30 p.m, he had gone to the house of his sister and at about 7.30 p.m, he had seen accused Surender going along with Vishal, the son of his sister, in the gali and that he had earlier also seen said child going along with the accused so he did not feel anything suspicious even on that day in accused Surender taking along with him the said child and subsequently he went back to his house. He further stated that on the next day, i.e. 16.07.2006, he received a phone call from his brother in law Ramesh Jaiswal that Vishal was not traceable and that he along with all other relatives and friends started searching for Vishal and that after 2/3 days he came to know that the dead body of Vishal was recovered from a well. He further deposed that he was told that accused Surender was also assisting his sister and brother in law in tracing out the missing child and that on 20.07.2006, he told his sister Maha Laxmi in the BJRM hospital that on 15.07.2006 he had seen accused Surender along with Vishal.

18. In his cross examination, he replied that Vishal was having affection towards accused. He admitted it as correct that accused SC No.229/10 Page 14/41 was helping his brother in law and sister in tracing out the Vishal. He further answered that he had seen the accused taking away Vishal from the shop.

19. PW6 Smt. Maha Laxmi deposed that her husband was running a Tea stall at Sanjay Gandhi Transport Nagar and that on 15.07.2006, at about 7.30 p.m, her son Vishal, aged about 4 years, was found missing from the front of their grocery shop in Gali No.5, Swarup Nagar and that she looked for her son here and there and when he could not be found, then she rang up her husband and he also came there and that they again made search for their son but could not found him. She further stated that thereafter at around 11.30 p.m or 12 mid night, they made a report to the police but their son could not be found for another 3­4 days despite search. She further testified that on 19.07.2006, they got the case registered of kidnapping with the police and at around 1 p.m, she along with her husband was standing at her grocery shop when the Maulvi Shabbir Raza of the local mosque, who was earlier informed by them about the missing of their son, came over there and told them to look for the body of their son in the well behind their house and thereafter her husband along with one Rakesh Aggarwal went to the said well and there they saw one leg and one hand of the child floating in the well and they informed about the same to one Surender Prajapati, whose shop was also situated nearby, and said Surender Prajapati informed the police about the same and thereafter police took out the SC No.229/10 Page 15/41 body of her son Vishal from inside the well and she identified the same.

20. She further testified that accused Surender, present in court, was residing as a tenant in their house for the past about one year and they had close family relations with him and her children were also very close to the accused and that even on one occasion when they were in need of money, they had borrowed a sum of Rs.20,000/­ from the accused about 6­7 months prior to the present incident. She further deposed that accused, however, was having ill intentions towards her for the past about 2­3 months prior to the incident and that accused used to bring his friends to his room and used to drink liquor and that she objected to his said behaviour stating that her young sister in law was also residing in the house and that accused used to feel annoyed on her said objection and that she even asked him to vacate the said tenanted room and about 15­ 20 days prior to the incident, the accused even on one occasion, had packed his goods in the night so as to vacate the room but again in the morning he did not vacate the same and continued to reside over there. She further deposed that out of the said sum of Rs.20,000/­ taken by them, they had returned a sum of Rs.5,000/­ to the accused but when accused started having ill intentions towards her and she rebuked him in that regard, then accused started harassing her husband regarding the balance amount of Rs.15,000/­. She further testified that on 15.07.2006, her brother Banwari had come to her SC No.229/10 Page 16/41 house at around 6/6.30 p.m. and he went back at about 7 p.m and that again her brother Banwari came on 20.07.2006 at BJRM hospital and he, at that time, told her that on 15.07.2006 at about 7 p.m, he had seen Vishal going along with the accused towards the well behind their house and as she was very perturbed on account of death of her son, so she could not tell to her husband either about the fact told to her by Banwari having last seen Vishal with accused on 15.07.2006 or the ill intentions of accused towards her. She further testified that later on said Maulvi Shabbir Raza was interrogated by the police who told the police that the actual killer was accused Surender and that earlier they did not have any suspicion upon the accused as he was helping in tracing out their son and they were having good family relationship with him and that accused thereafter fled away on 21.07.2006 but witness again stated that she did not remember properly as to when accused went missing.

21. In her cross examination on behalf of the accused, she replied that her husband used to go to his shop at around 6 or 6.30 a.m and used to come back at about 8 or 8.30 p.m and that her sister in law was also residing with her. She admitted it as correct that her son Vishal used to go outside the house for playing and that on the day of incident her son had come to shop for taking some goods and thereafter he was going back to the house. She further answered that the well is situated from her house at walking distance of about 10­ 15 minutes and that there were some bushes around and over the SC No.229/10 Page 17/41 well and that at about 7.30 p.m, she came to know that her son was missing. She denied the suggestion that she was having love affair and physical relation with the accused. She further denied the suggestion that she did not make complaint to her husband of ill intentions of the accused towards her as she was having good relations with the accused. She further denied the suggestion that due to illicit relations and as they had not paid Rs.20,000/­ to the accused, they had made false complaint against the accused and falsely implicated him in the present case. She denied the suggestion that her son fell down in the well while playing and accused was falsely implicated in the present case.

22. Coming to the other official witnesses. PW2, the autopsy surgeon, has proved the autopsy report Ex.PW2/A and he gave the cause of death of the said child as asphyxia as a result of antemortem drowning.

23. PW7 Ct. Rajesh Kumar was posted at PCR and he received the information from phone no.9811071210 from one Surender Prajapati that foot and hand of one child were seen in a well near Gali No.5, Kushak Road, Swarup Nagar, H.No. A­346 and he recorded this information in PCR form and gave the same for further transmission and PCR form was proved by him as Ex.PW7/A and he was not cross examined on behalf of the accused.

24. PW8 HC Sher Singh was the duty officer who proved the FIR as Ex.PW8/A and his endorsement on the original complaint as SC No.229/10 Page 18/41 Ex.PW8/B and he also proved the DD No.44B as Ex.PW8/C. PW9 SI Manohar Lal, the draughtsman, prepared the scaled site plan as Ex.PW9/A. PW10 SI Suraj Bhan was the In charge of the Crime Team who reached the spot and proved his report as Ex.PW10/A.

25. PW11 Inspector M.C. Meena deposed that he was posted as SHO on 20.07.2006 and took over the investigation of the present case from ASI Kuldeep Singh and at about 7.05 p.m, he along with SI Jagdish Rai, ASI Kuldeep Singh, Ct. Rajbir and Ct. Dalbir left the PS in government vehicle and reached at K­600, Khadda Colony, Swarup Nagar, in search of accused but the room of the accused was found locked and thereafter they searched for the accused at the residence of his aunt Ram Pyari, who was residing in front of the room of the accused, but accused was not found there and from the said address K­600, the complainant Ramesh Jaiswal accompanied them and thereafter they all reached at Badli railway station in search of accused where the complainant identified one person who was laying on the bench as accused Surender @ Sunder and accused was apprehended and he was interrogated and his disclosure statement Ex.PW1/F was recorded and thereafter he was arrested and thereafter the accused led the police party to the spot and pointed out the same vide memo Ex.PW1/G and thereafter they came back to the PS and he recorded the statements of PWs and that on 09.09.2006, he got prepared the scaled site plan from SI Manohar Lal, the draughtsman, and on 23.09.2006, he collected the autopsy SC No.229/10 Page 19/41 report and on 28.09.2006, he sent the exhibits for depositing at CFSL Kolkata but the same could not be deposited due to continuous holiday. He further deposed that he collected the photographs of the place of occurrence and the PCR form.

26. In his cross examination, PW11 replied that they reached the said Khadda Colony between 7.30 to 8 p.m where the complainant met them but wife of the complainant was not found. He further replied that he did not remember as to when the mother of the deceased met him for the first time and that the said aunt of the accused namely Ram Pyari was also not found available. He could not tell as to whether the bench on which the accused was laying was made of wood or iron and that hardly one or two passengers were there at that time at the platform and that they were in uniform. He further replied that disclosure statement of the accused was in the handwriting of SI Jagdish Rai. He further replied that he did not receive any complaint against accused Surender prior to the incident from the complainant or his family. He further replied that distance between the house of deceased and the well where the dead body was found was approximately ½ km. He further replied that opening of the well was covered with woods and there was parapet of the well. He further answered that motive behind killing of master Vishal by the accused was that accused was demanding Rs.20,000/­ from the parents of the deceased which he had given them and parents of the deceased could not return it and another SC No.229/10 Page 20/41 reason for killing of master Vishal by accused was that accused was having a bad eye on the mother of the deceased for which she had scolded him many times and also asked the accused to vacate their room which they had given to him on rent. He denied the suggestion that mother of the deceased was having illicit relations with the accused and due to this reason he was falsely implicated in the present case at the instance of the complainant. He did not know if wife of the complainant had returned Rs.5,000/­ to the accused out of the said sum of Rs.20,000/­. He admitted it as correct that there was a small temple near the well.

27. PW12 HC Krishan Singh proved the DD No.90B whereby the missing report of the said boy was recorded as Ex.PW12/A.

28. PW13 ASI Kuldeep Singh, the initial IO, deposed that on 15.07.2006, he received DD No.90B at about 11.57 p.m regarding missing of a child and thereafter he deposed about the efforts made by him to trace out the child on 17.07.2006 and 18.07.2006. He further deposed that on 19.07.2006 at about 10.30 p.m, the complainant came to the PS whose statement was recorded and he got the FIR registered and at about 1.50 p.m on 19.07.2006, he received DD No.44B wherein it was informed that in a well near H.No. K­346, Gali No.5, near Kushak Road, Swarup Nagar, Delhi, one child was inside the well which was handed over to him for investigation and he along with certain police officials including Ct. Ajay went to the said well where Ct. Rajbir met him and there the SC No.229/10 Page 21/41 complainant Ramesh Jaiswal, PW Maha Laxmi, PW Surender Prajapati and Rakesh Aggarwal also met him and there were lot of persons who gathered there and he directed Ct. Rajbir to go inside the well who took out the dead body of the child with the help of rope, basket and a ladder who was identified by Ramesh and Maha Laxmi being their son namely Vishal and thereafter he called the crime team at the spot and photographs of the spot were taken and he informed the SHO on telephone and prepared site plan which is Ex.PW13/C and he recorded the statements of witnesses, completed the inquest proceedings and dead body was shifted to mortuary of BJRM hospital. He further deposed that on 20.07.2006, he left the PS at about 11 a.m along with Ct. Rajbir and got conducted the autopsy on the dead body of the Vishal vide his request Ex.PW13/E and he filled up the form No.25.35(1)(B) which is Ex.PW13/D. After the autopsy said PWs Banwari Lal, Ramesh and Maha Laxmi informed him that their tenant Surender @ Sunder is missing since the recovery of the dead body and they all informed about their suspicion regarding the involvement of Surender @ Sunder in the said offence and he recorded their statements to that effect. After the autopsy, the doctor handed over him two parcels containing viscera and clothes of the deceased sealed with the seal of the said hospital along with one sample seal which he took into possession vide memo Ex.PW13/F and thereafter he along with Ct. Ajay reached Madina Masjid, Gali No.2, Khadda Colony, and there he SC No.229/10 Page 22/41 recorded the statement of Imam Shabbir Raza and also reached at the tenanted premises of Surender but the same was found locked and thereafter he came back to the PS, deposited the exhibits in the Malkhana and Section 302 IPC was added in the case and further investigation was handed over to Inspr. M.C. Meena and thereafter he deposed on the same lines on which Inspr. M.C. Meena PW11 has deposed with regard to arrest of the accused, his disclosure statement, etc.

29. In his cross examination, PW13 replied that there were 20 to 25 persons gathered near the well but he did not record the statement of any other public witness except the relatives of the deceased. He further replied that the well was surrounded by a fence wall and that there was a deserted temple near the well. He further replied that no public person was present when he recorded the statement of the Imam. He further answered that he did not come across any dispute of landlord and tenant relationship between the complainant and the accused. He did not know, as per his reply, if the father of the deceased had taken a sum of Rs.20,000/­ from the accused and as the father of the deceased did not want to return the said amount the accused was falsely implicated in the present case. He further replied that he did not come across the fact of any illicit sexual relations between the accused and the mother of the deceased. He further answered that no fact of threatening the parents of the deceased or demanding some consideration from them by the SC No.229/10 Page 23/41 accused came to his notice during the investigation. He further answered that the house of the deceased was situated at a distance of ½ km from the said well. He further answered that till the time of the arrest, as per statements recorded of the witnesses, deceased was killed because of the illicit relations between the mother of the deceased and the accused.

30. PW14 Ct. Ajay deposed about joining the investigation along with ASI Kuldeep Singh on 19.07.2006, reaching the said well and taking out of the dead body of the child by Ct. Rajbir from the well with the help of said articles, identification of the dead body by the parents, the crime team coming to the spot, taking of photographs of the scene of occurrence. He further deposed that on 20.07.2006, he again joined the investigation and deposed regarding autopsy conducted on the dead body of the said child.

31. In his cross examination, PW14 answered that level of the well was about 1½ ft was up to the ground level as it was checked by removing the grass and branches of trees lying on the said boundary of 1½ ft. He further answered that on 20.07.2006, he came to know about the involvement of Surender in this case in the afternoon. He further replied that he was not aware if prior to the suspicion of Imam, no one including the parents of the deceased, the neighbour and relatives, had also raised any suspicion on the accused or not.

SC No.229/10 Page 24/41

32. PW15 Ct. Dalbir Singh was the member of the crime team who took the photographs of the place of occurrence and proved the same as Ex.PW15/A1 to A6 and negatives thereof as Ex.PW15/B1 to B6.

33. PW16 HC Rajbir initially deposed that on 19.07.2006, at about 2.30 p.m, he had seen some persons standing near a well in the said Khadda Colony and ASI Kuldeep Singh and Ct. Ajay were already present there and inside the well the hands and feet of a child were visible and with the help of a ladder and rope he went inside the well and took out the dead body of a male child and that father of the child was present there namely Ramesh who identified the dead body of the child. Thereafter he deposed on the same lines on which PW13 has deposed and thereafter he deposed that on 20.07.2006, he again joined the investigation with SHO, SI Jagdish, ASI Kuldeep in search of the accused and reached the house of the complainant who was also joined in the search of the accused and thereafter he deposed regarding arrest of the accused from the said railway station.

34. In his cross examination, PW16 answered that on 20.07.2006, the accused was identified at the said railway station from a distance of 25/30 ft where the accused was sitting at a bench at platform no.1 of the said station. He did not notice if the bench was wooden or made of iron or stone. He further replied that accused tried to escape at the time of his apprehension. He did not recollect as to in SC No.229/10 Page 25/41 whose handwriting the disclosure statement was reduced into writing.

35. PW17 SI Jagdish Rai deposed regarding the arrest of the accused on the lines on which other police officials had deposed but in his cross examination, he could not tell about the material used in the said bench at the platform. He further answered that the disclosure statement was in his handwriting which was recorded at the railway station.

36. Admittedly, there is no eye witness to the occurrence who had seen the accused throwing the child in the well. The case is resting on the circumstantial evidence.

37. The law relating to circumstantial evidence has been laid down in series of judgments not only by the Hon'ble Apex Court but by various High Courts of India wherein it has been held that "In order to record the finding of guilt on the basis of the circumstantial evidence, it is necessary that the chain of circumstances is so complete and clearly established so as to be consistent only with the hypothesis of the guilt of the accused and not being capable of explanation on any other hypothesis and not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that the act must have been done by the accused and the accused alone."

38. In the cases of circumstantial evidence, the motive becomes very important although it is not the essential ingredient to prove the offence u/s 302 IPC. As per case of the prosecution, as deposed by PW11 Inspr. M.C. Meena and PW13 ASI Kuldeep Singh, who were SC No.229/10 Page 26/41 the two IOs in the case, the motive behind the killing of Master Vishal by the accused was that accused was demanding Rs.20,000/­ from the parents of the deceased which he had given to them and parents of deceased could not return the same and another reason for killing of master Vishal was that accused was having a bad eye on the mother of the deceased for which she had scolded him many times and had also asked the accused to vacate their room in the possession of the accused as a tenant.

39. But the depositions of PW11 and PW13 are self contradictory in nature. For example, PW11 Inspr. M.C. Meena denied the suggestion that mother of the deceased was having illicit relations with accused and due to this reason he was falsely implicated in the present case at the instance of the complainant and he did not know if wife of the complainant had returned Rs.5,000/­ to accused out of Rs.20,000/­ borrowed by them from the accused. PW13, in his cross examination, replied that he could not come across any dispute based on landlord/tenant relationship between the accused and father of the deceased during his investigation and that he did not know if the father of deceased had taken a sum of Rs.20,000/­ from the accused or that the father of the deceased did not want to return the said amount for which the accused was falsely implicated in the present case. He further replied that he did not come across the fact of any illicit sexual relations between the accused and the mother of the deceased. But in the last sentence of his cross examination, SC No.229/10 Page 27/41 PW13 answered that till the time of the arrest of the accused, as per statements recorded of the witnesses, the deceased was killed because of the illicit relations between the mother of the deceased and the accused. From the said contradictory and self inconsistent deposition of PW11 and PW13, the edifice of the motive is shaken.

40. Coming to the deposition of PW1. So far as motive of demand of Rs.20,000/­ is concerned, the complainant as PW1 has replied that prior to the incident in question he and his family was having very good relations with the accused Surender and that he and his wife had taken a loan of Rs.20,000/­ from accused Surender for purchasing a plot but he had paid only Rs.5,000/­ till the date to the accused and Rs.15,000/­ was balance. In the next breath, he submitted that he had not stated to the police in his statement that a sum of Rs.15,000/­ was yet to be paid by him to the accused. He denied the suggestion that accused demanded back Rs.15,000/­ from them or that on this account any quarrel took place between them. He further answered that he had taken Rs.20,000/­ from accused in November 2005 with the assurance that he would return the same within 2 or 4 months and that he returned Rs.5,000/­ within next 2/3 months and that accused demanded back his money in March/April 2006 when he was going to his village and at that time he had given him Rs.1,500/­ and he told the accused that he would repay the balance amount also and upon this accused did not raise any dispute with him and rather agreed to his request and he has further SC No.229/10 Page 28/41 answered that accused however, returned back within 4/5 days stating that his money got stolen at Kanpur Station but again the accused did not ask for his balance money although he was having no longer any job. He further replied that accused was helped by him in establishing a sale counter of selling jalebi which the accused stopped after some days but still accused did not ask his money again. Even PW4, Surender Prajapati, did not support the case that there was any complaint against the behaviour of the accused who was the tenant of complainant Ramesh. He further replied that the complainant Ramesh also never told him anything against his tenant accused Surender.

41. With regard to said loan of Rs.20,000/­, PW6 Smt. Maha Laxmi deposed that they were having good close family relations with the accused and her children were also very close to accused and that they had borrowed a sum of Rs.20,000/­ from the accused about 6/7 months prior to the present incident out of which Rs.5,000/­ was returned to the accused and when she had scolded the accused against his ill intentions towards her, the accused started harassing her husband regarding the balance amount of Rs.15,000/­.

42. It is difficult to reconcile the said two versions of the said husband and wife i.e PW1 and PW6, because PW6 is claiming that accused started harassing her husband by demanding the said money whereas PW1 has totally denied any demand of the said money or resulting harassment due to non payment of the said money by the SC No.229/10 Page 29/41 accused.

43. Coming to the alleged motive of accused having illicit relations with PW6. Admittedly the complainant being the husband of PW6 namely Ramesh Jaiswal has denied the suggestion that his wife Smt. Maha Laxmi was having illicit relations with accused Surender or that on this account he used to remain annoyed and inimical against accused and was searching for a chance to falsely implicate the accused in any case. On the other hand, PW6, the mother of the deceased, has only deposed that accused was having ill intentions towards her and she denied the suggestion that she was having love affair or physical relations with the accused. She further denied the suggestion that she did not make complaint to her husband of ill intentions of the accused towards her as she was having good relations with the accused. She further denied the suggestion that due to illicit relations and as they have not paid Rs.20,000/­ to the accused, they had made false complaint against accused who has been falsely implicated in the present case. A very strange part of her deposition is that as she was very perturbed on account of death of her son, she could not tell to her husband either the fact told to her by Banwari having last seen Vishal with accused on 15.07.2006 or the ill intentions of accused towards her. In the other part of her deposition, she deposed that accused however, was having ill intentions towards her for the past about 2/3 months prior to the incident and he used to bring his friends to his room and used SC No.229/10 Page 30/41 to drink liquor and she objected to his said behaviour stating that her younger sister in law was also residing in the said house and that accused used to feel annoyed on her said objection and she even asked him to vacate the said tenanted room and about 15/20 days prior to the incident, the accused even on one occasion had packed his goods in the night so as to vacate the room but again in the morning he did not vacate the room and continued to reside over there.

44. Even if it is to be taken as true that she was perturbed on account of death of her son and as such, she could not disclose about ill intentions of the accused to her husband, the PW1, but said state of mind was when her son expired but ill intentions of the accused were continuing, admittedly 2/3 months prior to the incident and it is most unnatural conduct of this witness that she could ask the accused to vacate the room on account of his ill intentions and indecent behaviour but she did not tell the same to her husband during the said period. The things given to understand by PW6 are difficult to swallow. Thus, the said motives proved to be very flimsy and untrustworthy in the circumstances, as deposed by the witnesses which do not prove the said motive of the accused in killing the said child. The argument, that in order to take revenge from PW6, who was not succumbing to the ill intentions of the accused, he killed her child, at the first blush, appears attractive but on close scrutiny, its hollowness is exposed as discussed by me SC No.229/10 Page 31/41 above.

45. Coming to the next circumstantial evidence of the accused having been seen last in the company of the deceased. PW5 Banwari Lal, who is brother in law of PW1, the complainant Ramesh and real brother of PW6, the mother of the deceased, admittedly, deposed that on 15.07.2006, at about 7.30 p.m, he had gone to the house of his sister, where the accused was residing as a tenant and at around 7.30 p.m he had seen accused Surender going along with Vishal, the deceased, and that he had earlier also seen said child Vishal going along with Surender so he did not feel anything suspicious even on that day in accused taking along with him the deceased. On the next day i.e on 16.07.2006, he received a phone call from the complainant Ramesh that the child was not traceable. He did search for the said child along with all other relatives and friends, as per his deposition. He came to know after 2/3 days that dead body of the deceased was recovered from a well. He was informed that accused Surender was also assisting his sister and brother in law PW1 Ramesh, in tracing out the missing child and on 20.07.2006 he told his sister Maha Laxmi, PW6, at the BJRM hospital that on 15.07.2006 he had seen accused Surender along with Vishal. He admitted in his cross examination that deceased was having affection towards accused Surender.

46. Now admittedly PW1 has also admitted it as correct that accused Surender was also with them when they were searching for SC No.229/10 Page 32/41 the deceased. He again admitted that on 15.07.2006, PW5 Banwari had visited his house. He further answered in cross examination that PW5 Banwari resided near Bhajan Pura in Trans Yamuna area who used to visit his house after 10 or 15 days and that on 15.07.2006, when he returned home, by that time Banwari was already there. He had received a phone call at about 7 or 7.30 p.m from his wife that deceased was not traceable. He further admitted that Banwari himself did not meet him and his wife only told him that he had come and that before he reached his house, Banwari had already left. He had further categorically replied that Banwari did not tell anything to him that he had seen accused Surender going along with deceased and his wife also did not tell anything in this regard. He further answered that on 16.07.2006, at noon time, he told Banwari on phone that deceased was missing but Banwari did not come to his house nor PW5 Banwari at that time told him that he had seen accused Surender going along with the deceased. PW1 further answered that neither on 16.07.2006 nor on 17.07.2006 nor on 18.07.2006 Banwari ever informed them that he had seen accused Surender going along with Vishal on the evening of 15.07.2006. He further replied that prior to 20.07.2006, when Banwari "allegedly" told his wife that Banwari had seen accused Surender going along with deceased, neither he nor his wife were aware about the involvement of accused Surender in this case.

SC No.229/10 Page 33/41

47. From the said deposition of PW1 and PW5, it is well established that if the theory of "last seen" is taken as true, for the sake of arguments, the deposition and conduct of both the witnesses is beyond natural human behaviour. If the accused was really suspected by them to have taken the deceased along with him on 15.07.2006, at about 7.30 p.m, the PW5 came to know about the missing of the child on 16.07.2006, as per deposition of PW1, but strangely enough, PW1 admitted that PW5 Banwari did not come to the house of the complainant PW1 even after hearing the said news nor he disclosed about accused Surender taking the deceased with him. If they were not having any suspicion, no inference can be drawn against the accused as has been admitted by PW1 and PW5 that they were having good relations with the accused and the deceased was having affection towards the accused and the deceased was commonly seen with the accused. Strange is the behaviour of the PW5 that at one place he claimed to have joined the relatives in search of the deceased and PW1 admits that the accused was with them in the search and if PW5 had seen the accused taking the deceased, particularly when the deceased was found missing just sometime on 15.07.2006 at about 7.30 p.m, I failed to understand as to why PW5 not countered the accused, then and there, with regard to the fact of the accused taking the deceased with him. No trustworthy explanation has come on the record as to why PW5 kept silent for a long period right from 15.07.2006 since 7.30 p.m till the SC No.229/10 Page 34/41 time the body was shifted to mortuary of BJRM hospital on 20.07.2006, when the autopsy was to be conducted.

48. The further jolt to the said story of PW5 was given by the mother of the deceased and sister of PW5 namely Smt. Maha Laxmi, the PW6, who also claimed that they were having good family relations with the accused and her children were very close to the accused and she further claimed that PW5, Banwari, her brother, had told her on 20.07.2006 at BJRM hospital about accused taking the deceased with him on 15.07.2006 at around 7 p.m. She has tried to give an explanation that as she was very perturbed on account of death of her son, she could not tell to her husband regarding the said fact as disclosed by Banwari or the ill intentions of accused towards her.

49. From the said deposition it can safely be inferred that PW5 was projected as a witness to otherwise support the other circumstantial evidence which have been marshaled against the accused in this case as has been discussed by me below. However, the "last seen" theory could not be established by the prosecution in this case beyond reasonable doubt. Suspicion, howsoever may be strong, cannot take the place of proof. I am fortified in my view by a judgment of the Hon'ble Madras High Court titled In re. Ramaswamy reported as AIR 1938 Madras 336 wherein Hon'ble Division Bench of the said High Court held that where the sole fact proved against an accused charged with having murdered a child SC No.229/10 Page 35/41 for sake of his ornaments, is that he was seen in the company of the child not far away from where the corpse was found sometime before the murder must have taken place and there was nothing unusual in the little boy being in the company of the accused, it being a common occurrence and where it is not possible to say that accused and the child were seen together within a very short time of the murder it is not safe to infer that the accused must have been concerned in the murder particularly when accused was commonly seen with child previously. Another reference with regard to said motives and theory of "last seen" of a judgment of the Hon'ble High Court of Delhi can be made here which is titled Chanderpal Vs. State with Kishan Lal Vs. State reported as 1998 (2) JCC (Delhi)

207.

50. Coming to the next circumstantial evidence against the accused which is an extra judicial confession made by the accused before PW3, the Imam of the Masjid namely Mohd. Shabbir Raza and as per his version on 19.07.2006, accused Surender second time came alone to him and disclosed to him that he had thrown the alive child in the well behind the house near the temple in the fields on 15.07.2006 and not to disclose his name to anyone. Prior to that on 19.07.2006 at about 8.30 a.m, PW1, PW6 along with accused and one lady had also gone to the said Imam PW3. He further deposed that on 19.07.2006 itself he was to go somewhere for some work and in the way at the tea shop parents of the child Vishal and one old SC No.229/10 Page 36/41 lady met him and he told them that child was lying in the well behind the house near the temple in the fields and asked them to trace the child in the well and thereafter he went away.

51. Admittedly the Masjid was situated in the same colony where PW1 along with PW6 was residing. It can also be safely inferred that the said Masjid where PW3 was the Imam, was at a walking distance from the house of the complainant PW1 and PW6, which is proved on record that they went to the said Masjid in search of the deceased. PW3 did not tell us as to when accused Surender second time came alone to make his extra judicial confession on 19.07.2006. PW3 is further silent about the fact that as to when at the said tea stall he disclosed about the dead body of the deceased lying in the said well to the parents of the deceased on 19.07.2006. However, DD No.44B Ex.PW13/B (inadvertently exhibited twice as Ex.PW8/C also) tells us that at about 1.50 p.m the information had reached to the PS that dead body of the deceased was lying in the said well.

52. The said story put forth by PW3 that he was to go somewhere for some work and in the way he met the parents of the deceased and informed them about the dead body in the said well, is totally uprooted and contradicted by PW1, the complainant Ramesh, who deposed in his examination in chief that he received a call from Maulvi Shabbir Raza (PW3) who informed him that his son would be found and asked him to search for his son in the well situated SC No.229/10 Page 37/41 behind his house. PW6 again sided with the PW3 when she deposed that PW3 had personally come to them and told them about the dead body lying in the said well.

53. Coming to the cross examination of PW3, to whom alleged extra judicial confession was made. PW3 came to know about missing of the child on 15.07.2006 at about 8.30 p.m (inadvertently the time was written as 8.30 a.m which was not possible because as per the prosecution case the child was found missing at 7.30 p.m on 15.07.2006, so the PW3 coming to know of the missing of the child on 15.07.2006 at about 8.30 a.m was not possible.). He further admitted that even after accused had told him about his involvement in the present case, he did not inform the matter to the police. He further replied that police had come to him on 20.07.2006 at about 1 p.m. He further replied that he himself did not go to the well to check the said information given by the accused. He had not seen the said well ever. Neither he asked accused Surender as to why he did so nor accused Surender told him any reason for his said act of killing the deceased.

54. The said cross examination of PW3 that he did not disclose the said extra judicial confession to the police at the first point of time, goes to uproot the story of extra judicial confession. Rather it seems that PW3 may be a privy to the crime as he admittedly was a sorcerer and was continuing with this work for about last ten years. One reason for not disclosing the fact of extra judicial confession to SC No.229/10 Page 38/41 the police may be that he was afraid of the accused but he nowhere deposed to that effect during his deposition that he was under threat or otherwise under some pressure on behalf of the accused. Contra he deposed that accused asked him not to disclose his name and to disclose name of any other person with regard to the said offence. There is no deposition of PW3 that any threat was extended by the accused at that time. The accused allegedly informed him that he could not see the miserably condition of the parents of the child, therefore, he made the extra judicial confession to him. From this fact it can safely be deduced that accused was in a pitiable condition at that time and rather PW3 was having his upper hand at that time and even PW3 could have blackmailed the accused throughout his life for the said extra judicial confession but this is also not the case either of PW3 or of the prosecution. The unnatural conduct of the PW3 is that he even did not go to the well to cross check the alleged extra judicial confession or at least should have remained with the parents of the deceased to cross check the said information allegedly disclosed by the accused. Again PW1, who allegedly went to PW4 namely Surender Prajapati, who informed the police regarding the dead body lying in the well, even did not disclose to PW4 that PW1 was having the information from PW3 that the deceased was lying inside the well. PW5 is also silent as to the source of information regarding the dead body when he deposed that after 2/3 days he came to know that dead body of Vishal was recovered from a well. SC No.229/10 Page 39/41 Moreover, PW6 has deposed that when PW3 informed them regarding the dead body lying in the well, then her husband (PW1) along with one Rakesh Aggarwal went to the said well and there they saw one leg and one hand of a child floating in the well. Said Sh. Rakesh Aggarwal is not a witness in the case. Strange is the behaviour of the mother PW6 who did not accompany her husband and Rakesh Aggarwal to the said well in order to cross check the information. Thus, the extra judicial confession allegedly made by the accused to PW3 does not find corroboration from any other document or the deposition of witness on the record and considering the behaviour of PW3 against the ordinary course of human nature, it would not be safe to rely on the said extra judicial confession to convict the accused. Thus, all the links in the chain of circumstantial evidence have been shattered by the said deposition of the said PWs.

55. The further jolt is given by the material conditions in the deposition of witnesses with regard to alleged arrest of the accused from the said railway station when all witnesses including the complainant deposed that at the time of the arrest, accused was laying on a bench but PW16 HC Rajbir deposed that accused was sitting at the bench at the time of apprehension of accused. No witness of arrest could tell as to by which material the said bench was made of.

56. In view of my said discussion, benefit of doubt is extended to SC No.229/10 Page 40/41 the accused and he is acquitted of the charges u/s 364/302 IPC. Accused be set at liberty forthwith, if not wanted in any other case. The file be consigned to the Record Room.

(Announced in the open court on 22.03.2011) (RAKESH TEWARI) ASJ­06(OUTER) ROHINI COURTS, DELHI SC No.229/10 Page 41/41