Delhi District Court
State vs Anita & Ors on 28 November, 2008
/1/
IN THE COURT OF SHRI SURINDER S. RATHI: ADDL. SESSIONS JUDGE
FAST TRACK COURT:ROOM NO.272:TIS HAZARI COURTS:DELHI
FIR NO: 158/88
U/s : 302/201/202/364/120BIPC
STATE vs Anita & Ors
JUDGMENT
1 Sl. No. of the Case SC-10/2008
2 Date of Committal of case 14.12.1988 3 Received by this court on transfer 17.11.2008 4 Name of the complainant Inspector D. N. Kaushik 5 Date of commission of offence 10/09/88
6 Name of accused, parentage 1. Anita W/o Late Om Kumar R/o
and address H.No. 72-73, Haumayu Pur , PS
Vinay Nagar, New Delhi (on bail)
2.Narender Singh @ Pappu
S/oManphool Singh R/o Village
Nanate PS Sampla Distt. Rohtak
(Haryana) (on bail)
3.Ran Singh S/o Shiv Ram R/o
H.No. 6, Village Dhirpur, Delhi (on
bail)
4.Surender @ Nitoo S/o Ram Phal
R/o Village Kilahwad PS Sampla
Distt. Rohtak (Haryana)(since
expired)
7 Offences as per chargesheet 302/201/202/364/120B IPC
8 Charge framed under 302/ 120 -B IPC
8 Plea of accused Pleaded not guilty
9 Final order ACQUITTED
10 Date on which order reserved 26.11.2008
11 Date on which order announced 28.11.2008
Contd/.........
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BRIEF REASONS FOR DECISION
1. On 10.9.1988 Duty Officer of PS Timarpur received a PCR message at 8:30AM that in a pond close to Nirankari Colony , a dead body is lying. Upon receiving this message , SHO Inspector D. N. Kaushik alongwith staff reached the spot. There he found dead body of a human being lying in a sack in decomposed condition. The body was got photographed and FIR U/s 302 IPC was got registered. During this process SI Dalel Singh of PS R.K. Puram two reached there alongwith one Jagdev Singh who was complainant of FIR No.275/99 U/s 365 IPC, PS R.K. Puram. Jagdev Singh identified the body to be of his son Om Kumar while stating that his son and his son's wife Smt. Anita left for Anita's parental House at Village Kanonda, Bahadurgarh, Delhi to celebrate Rakhi on 27.08.88, but did not return back. He stated that on 03.09.88 he had lodged a missing complaint with PP Vinay Nagar, PS R.K. Puram. At the spot SHO, Timarpur seized the articles found at the spot including the jute sack, jute rope, bunch of hairs, pond water and earth. He also seized underwear of deceased apart from that of his father Jagdev Singh as they were similar and sent the body for post mortem apart from recording statements.
2. During further investigation it was revealed that Jagdev Singh, father of deceased, had lodged a written complaint with SHO PS R.K. Puram on Contd/.........
/3/ 07.09.88. In his typed complaint Jagdev Singh father of the deceased told the police that his son Om Kumar had left for Delhi on 28.08.88 itself. He disclosed the name of one DTC bus conductor Hari Singh who is said to have told him that he knew his son Om Kumar and that Om Kumar and his wife Anita had boarded DTC Bus Root No. 631 from Punjabi Bagh wherein he was bus conductor. There in the bus Anita was talking to one boy to which Om Kumar objected as that boy was following them from Bahadurgarh, Haryana. Anita is said to have claimed that boy is her relative. As per Complaint Anita , Om Kumar and two boys alighted the bus at R.K. Puram Red Light.
3. The complaint even disclosed the name and address of the two suspects as Babu S/o Om Prakash and one Sumer both R/o Village Kanonda. The complaint also discloses that both these boys have had drinking session with Om Kumar in the past and he apprehended that these boys might have kidnapped his son.
4. As per the charge sheet IO of PS R.K. Puram SI Dalel Singh came to know that Anita had reached back to her parental village Kanonda on 06.10.88. She was allegedly joined in investigation on 07.09.88 and as per charge sheeted prosecution case on 09.09.88 she gave a disclosure statement implicating herself apart from implicating Narender Singh @ Pappu , Surender Singh@ Nittoo and Ran Singh.
Contd/.........
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5. As per her disclosure on 28.08.88 one boy boarded bus from Bahadurgarh to Punjabi Bagh with them. At around 12:30 noon they alighted the bus and again boarded another bus from Punjabi Bagh to R.K. Puram and that boy followed them and stood close to her seat. He entered into conversation with her while her husband OM Kumar was conversing with bus conductor who was an acquaintance. The boy disclosed his name as Pappu to her. When her husband Om Kumar saw her talking to Pappu he got enraged and he kick her in front of all the passengers. As such she got annoyed. At around 1:30 PM she and her husband alighted the bus at R.K. Puram while Pappu followed them. Then Pappu tried to calm down Om Kumar by offering him cold drink from a shop. After obtaining consent from Om Kumar they planned for a drinking session in the evening. Pappu took them to CRPF Camp near Ravinder Rangshala, Mandir Marg, Delhi in an autorickshaw. There they met Pappu's friend Nittoo and they all left for house of Ran Singh at Village Dhirpur, Delhi. At around 6:00 PM three of them Om Kumar, Nittoo and Ran Singh had liquor in a room. At around 7:00 PM when her husband insisted that now they should leave for their house to which she stated that since he is heavily drunken they would leave tomorrow. Upon this Om Kumar abused her and started giving beatings to her and did not stop despite being consoled by Pappu, Nittoo and Ran Singh. In the meanwhile Pappu pressed Om Kumar's mouth while Nittoo Contd/.........
/5/ strangulated and killed him with the help of rope while Ransingh was standing at the door. Pappu and Nittoo then packed the body of Om Kumar in a sack. After about an hour they allegedly disposed off Om Kumar's Body in some pond. She is said to have had sex with Nittoo. In the morning she left for Raj Kot Ludhiana with Pappu where he was serving with CRPF. They lived in a room together. Later on on the asking of Pappu, Nittoo brought her back from Rajkot, Ludhiana and left her to parental house on 06.09.88. Anita is shown to have been arrested by R.K. Puram police on 09.09.88. She is also shown to have pointed out the house of Ran Singh, the room where they lived at Rajkot , Ludhiana.
6. IO inspector S.P. Kaushik arrested Anita in this case on 12.09.88 and took her police custody record. Apart from giving her second disclosure she is said to have pointed out the tent in CRPF camp at Ravinder Rangshala where they met Nittoo alongwith Pappu. He is also said to have pointed out the shop where Pappu had allegedly offered them Campa Cola. Some letters between Pappu @ Narender, Nittoo @ Surender were seized from CRPF Camp. On 15.09.88 she pointed out Rajkot Room where she allegedly lived with Pappu. IO arrested Narender Singh @ Pappu and recorded his disclosure statement and pointing out Memos of the above place were prepared again. A radio was also seized from the house of Ran Singh which was allegedly played when deceased Om Kumar was killed.
Contd/.........
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7. On 21.09.88 accused Ran Singh was arrested and his disclosure statement was also recorded. He is said to have got recovered a bicycle on which they allegedly took body of Om Kumar to the pond. Post Mortem report was collected which could not disclose the cause of death. After recording statements of witnesses charge sheet was filed U/s 302/201/202/364/120 IPC.
8. On 14.12.88 case was committed for trail. Before charges could be framed accused Surender@ Nittoo reportedly died. Proceeding against him were abated. Charge in this case was framed on 01.04.98 wherein Accused Anita, Narender and Ran Singh were charged for commission of offence with 302/120 B IPC while accused Narender and Ran Singh were separately charged for commission of offence U/s 201 IPC as well.
9. To prove its case prosecution examined 43 witnesses in all. After conclusion of prosecution evidence separate statement of accused were recorded. In her statement Anita conceded that deceased was her husband and that she had gone to her parental house with him on 27.10.88 and they could not reach back on 28.08.88. She claimed that she reached her matrimonial house only after 6-7 days had passed where she narrated her story to her father in law and then her father in Contd/.........
/7/ law lodged a report with the police. She said that thereafter she left for her parental house. She denied making any disclosure statement. She claimed that she was falsely implicated in this case and witness have deposed falsely. She also brought on record her version of the sequence of events by stating that on 28.08.88 while she and her husband left her matrimonial house from Bahadurgarh. Two boys boarded the bus who were earlier seen by her at her matrimonial house as they and her husband earlier had gone out for drinking sessions. On that day also one of the boy asked her husband Om Kumar to come for a drinking session to which he agreed. Her husband asked her to accompany them while stating that they would go home after sometime. They all got down from bus and as per her she was taken to some house in taxi. Both the boys got liquor and some eatables and all three of them started drinking even though she tried to restrain her husband but he continued to consume liquor and became inebirated. Thereafter both the boys took her husband out while saying that they would be back soon. Although both of them returned late in night but her husband was not with them when she inquired she was told by them that he would come soon. They then forcibly committed sex with her and when she resisted they threatened to kill her husband. She was confined into a room for few days and she was repeatedly raped by both of them. Finally when she got the opportunity she slipped from there and reached her matrimonial house. After she told everything to Contd/.........
/8/ her father in law Sh. Jagdev Singh, he lodged a report with PS R.K. Puram. Since she was shocked and shaken by this incident with permission of her father in law she went to her parental house, at Village Kanonda Bahadurgarh. But police brought her to Delhi and falsely implicated her in this case apparently to deny her succession claim in her husband's ancestrol properties. She denied that she ever knew Ran Singh, Narender and Surender. She claimed that she was asked to sign several blank papers. She expressed her desired to lead her evidence in defence but despite that no defence witness was examined.
10.In his statement given U/s 313 Cr. PC accused stated that he was serving with 16 Bataliyan CRPF at Rajkot Ludhiana and that he had obtained station leave on 27.08.88 and he returned back to his Batalian on 29.09.88 in the evening. He denied that on 28.08.88 he travelled in DTC bus with Anita and Om Kumar as set up by the prosecution by claiming that he was following Anita and Om Kumar. He claimed that police had falsely implicated him in this case and he is innocent. He admitted that he knew co-accused Surender who was also working with Cr. PC. He said that he does not know Anita and Ran Singh. He examined his father in his defence as PW-1. His father stated that they sent a telephonic message to him for illness of his mother, he came to see his mother and returned back on next date.
Contd/.........
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11.In his statement in 313 Cr. PC accused Ran Singh denied the entire prosecution case and claimed false implication. He did not lead any evidence in his defence.
12.I have heard arguments of LD. APP for State. Ld. Defence Counsel Anupam Sharma for all accused persons. I have gone through the relevant statutory provisions despite written submissions placed by the accused.
13.At the onset it would be appropriate to have a glance at the deposition made by the prosecution witness in this Court.
14.The first witness examined by the prosecution is PW-1 Babu Ram, owner of the shop at R. K. Puram from where Anita, Om Kumar and Narender @ Pappu allegedly consumed Campa Cola. This witness did not support the prosecution case at all and did not identify either of the accused persons he was declared hostile and despite putting leading questions no material useful for prosecution could come on record.
15.PW-2 is Hari Singh conductor of DTC Bus Root No. 631 where accused Narender allegedly met Anita and Om Kumar. He deposed that on 28.08.88 while he was on duty in the above bus Ramu @ Om Kumar whom he knew earlier, boarded the bus alongwith a girl at around Contd/.........
/10/ 12:00 Noon. One boy also boarded the bus from there. He identified accused Surender and Narender as a person who boarded the bus. As per him Ramu was standing near the conductor seat while Anita was sitting close to driver seat since Narender was talking to Anita Ramu objected to it and gave a fist blow in her abdomen. Narender posed himself to be Anita's Cousin. Thereafter all three of them alighted the bus at R.K. Puram where the bus route ended. In his cross examination this witness stated that although he knew Ramu @ Om Kumar since deceased was also working as a helper in some bus but he did not know his father Jagdev Singh. He claimed that he told about Om Kumar and his wife to Om Kumar's Jija Ashok Kumar on the next day as Ashok Kr. lives in his village. Witness was confronted as he improved his 161 Cr. PC statement Ex. PW 2/DA. He also made couple of more improvements like when he stated that after beating his wife Ramu alighted the bus from the front door and again boarded the bus from the back door. Another variation which was confronted is that as per 161 Cr. PC at 16.09.88, Om Kumar had kicked his wife while he deposed in the Court that he gave a punch in the abdomen of his wife. Witness also improved on fact that accused boy Narender claims himself to be cousin of Anita while stating that he got a rakhi tied from her.
16.PW-3 is Sanjeev Goel S/o of PW-1 Babu Ram too has not supported prosecution case despite being declared hostile and confronted with Contd/.........
/11/ this 161 Cr. PC statement.
17.PW- 4 is SI Tula Singh duty officer at P.S. R.K. Puram. He had brought carbon copy of the original FIR No. 275/08 Ex. PW 4/A which was registered by him on 07.09.88.
18.PW-5 is Constable Bharat Lal who was supposed to prove DD No. 8A dated 03.09.88 of PP Vinay Nagar PS R.K. Puram whereby PW-1 Jagdev father of deceased Ramu @ Om Kumar lodged a missing report of his son OM Kumar and daughter in law Anita. In his deposition as per Ex. PW 5/A the concerned record was destroyed.
19.PW-6 is Jagdev Singh who is father of deceased Om Kumar @ Ramu and who is complainant of FIR No. 275/88 U/s 365 IPC of PS R.K. Pram. He deposed that his son and daughter in law left for her parental house on 27.08.88 on the occasion of Rakshabandan at Village Kanonda Bahadurgarh but when they did not return for two three days he sent a message to her parents. Upon this father of Anita came to him and told them that they left on 28.08.88 for Delhi. Consequently he lodged a missing report with PS R.K. Puram. He claimed that since he was working as a driver in DTC, PW-2 Hari Singh who was conductor in DTC told him about the incident of dated 28.08.88 in bus route No. 631. He Contd/.........
/12/ then lodged a typed complaint with PS R.K. Puram on 06.09.88 which is proved by him as EX. PW 6/A. Perusal of this document shows that the date it was dated 07.09.88. He stated that thereafter Anita was arrested. He claimed that on 10.09.88 he and his nephew Dalip Kumar went to P.S. R.K. Puram and then Anita took the police officials to Yograj Colony Dhaka, Dhir pur where the dead body was found in a gunny bag. He identified the body of his son on the basis of underwear worn by him as he too was wearing a similar underwear stitched by his wife. He has proved Ex. PW 6/B a seizure Memo while Ex. PW 6/C is seizure of underwear from the dead body. Ex. PW 6/D is the Memo where by rope, gunny bag and hairs were taken into possession. Ex. PW 6/E is memo whereby photograph of his son Om Kumar were given by him to the IO. He identified gunny bag as Ex. P-1, underwear as Ex. P-2 , rope as Ex. P-3, hairs as Ex. P-4 and torn underwear taken from the dead body as Ex. P-5. In his cross examination he denied the suggestion that PW-2 Hari Singh conductor was not known to him or that he never met Hari Singh and was never told anything by him about his son. He stated that police of R.K. Puram got Anita from Bahadurgarh police station as she was in their custody. He denied that Anita came to his house on 06.09.88 on her own. He stated that Anita was brought by the police from Bahadurgarh to P.S. R.K. Puram she took the police to the pond after two days i.e. perhaps on 10.09.88. He claimed that they reached Contd/.........
/13/ the pond where the dead body was found at 8:50 AM and spend 90- 120 minutes there. He claimed that they reached the pond within minutes of the PCR Van while SHO Timarpur reached after about 5 minutes. He categorically claimed that they were first to reach to the pond. He stated that even though public persons were present at the spot but police did not record their statement. He claimed that from the spot they went to P.S. Timar Pur but no investigation was done by the police at P.S. Timarpur. He denied the suggestion that Anita did not take the police team to pond. In her cross examination done on behalf of Ld. Counsel for Anita Anita's 313 Cr. PC statement was put before him he denied the suggestion that after ascertaining the police about two boys namely Bablu and Sumer he lodged his typed complaint Ex. PW 6/A. He further conceded that he mentioned the name of Bablu and Sumer in his complaint. Even though it has been specifically mentioned in Ex. PW -6/A that these two boys Bablu and Sumer had earlier taken his son Om Kumar for drinking session and also that he has a strong suspicion that they have kidnapped his son but denied the same in his cross examination. He was also confronted with another material improvement made by him upon his 161 Cr. PC statement wherein he deposed in the Court that the body was recovered from the pond on the pointing out of accused Anita. In his statement to police he only stated that it was only he alongwith Dilip Kumar who Contd/.........
/14/ accompany the police team.
20.PW-7 is Dalip Kumar cousin of deceased Om Kumar. He deposed on the lines of PW-6 and claimed that he accompanied the police team alongwith Jagdev and Anita to the pond where the body was recovered. He stated that the whereabouts of dead body was disclosed to P.S. R. K. Puram by Anita. He stated that when they reached the spot at around 5:00 PM body was still lying in the pond. He stated that Anita was in custody of P.S. R. K.Puram on 06.09.88 itself and he was aware of it. He claimed that they arranged Maruti Van and had given same to the police and that it was given around 3 days prior to the recovery of the body. This witness also made improvements in his deposition. He was confronted with 161 Cr. PC statement Ex. PW 7/DA over the fact that in his statement he did not mention at all about two persons at the time of recovery of dead body .
21.PW-8 is retired H.C. Madan Lal, employee of 16th Battalian of CRPF, Ludhiana Punjab. He deposed that on 14.09.88 he was Quarter Master of his unit and police officials from Delhi has come to his unit. He handed over the kit of Narinder Singh vide Memo Ex. PW 8/A apart from handing over 8 hand written letters Ex. PW 8/1 to 8. He also proved a Seizure Memo of pant shirt and west of accused Narender as Ex. PW8/9 Contd/.........
/15/ and Ex. PW 8/11 respectively.
22.PW-9 is HC Munshi Ram. He was posted in 16th Battalian of CRPF camp at Rajkot Punjab. He proved seizure memo Ex. PW 9/A whereby attendance register of accused Narender was seized by the police. Ex. PW 9/1 to Ex. PW 9/6 were the documents pertaining to departure and arriving of Narender Singh in their Battalian.
23.PW-10 is Tara Chand who was barbar posted in 16th Battalian of CRPF camp at Rajkot Punjab. This witness did not support the prosecution case and was declared hostile.
24.PW-11 is HC Subhodh Kumar. He was working with CRPF Camp in the 16th Battalian of CRPF posted at Ravinder Rangshala,Mandir Marg Delhi as a driver. He stated that in October 1988 one boy and one girl had come to their tent to meet Surender. He deposed that as per his guess accused Narender and Anita had come at around 11-12 in the noon. He deposed that he used to share tent with Surender but on that night Surender did not sleep with him. In his cross examination he accepted the suggestion of the defence that Accused Anita and Narender might not be the persons who might have come on that day.
Contd/.........
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25.PW-12 is Dr. Bharat Singh Medical Superintendent. He conducted the post mortem report of the dead body and proved the same as Ex. PW 12/A. He gave a duration of death as 12 days or 21 days as per report owing to the highly composed condition of dead body cause of death could not be ascertained.
26.PW-13 is Pratap Singh. He is shown to be first person who saw the body lying near in the pond. He deposed that on 10.09.88 while going to the field he saw a gunny bag he then called the police by dialing 100 number. He denied that gunny bag was opened in his presence.
27.PW-14 is Roop Singh a fruit Vendor in Nirankari Colony near Kingsway Camp, Delhi. He did not support the prosecution case and declared hostile.
28.PW-15 is Ram Prakash an employee of DTC. He proved duty slip of bus route no. 631 of dated 28.08.88 and seizure memo as Ex. PW15/A and Ex. PW 15/B respectively.
29.PW-16 is ASI Preet Singh who was duty officer as PS Timar Pur. He proved the copy of FIR in question Ex. PW 16/A and post mortum report made in rukka as Ex. PW 16/B. Contd/.........
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30.PW-17 is SI Subhash Chand in CRPF. He was also posted in 2nd Battalian in 1988. He said that he had seen a boy and a girl at their camp with Delhi Police but he failed to identify other accused persons brought by the police.
31.PW-18 is Constable Jai Kishan at PS Timar Pur. He joined the investigation on 10.09.88. He stated that on receiving information about the dead body at 8:30 AM. He accompanied ASI Sis Ram to the pond. SHO also joined them. Photograph of the dead was taken and SHO gave the rukka and sent to PS. He got the Fir registered.
32.PW-19 is Bhagwan Singh. He was working in Second Battalian of CRPF Delhi. He witnessed seizure of accused Surender's kit vide Memo Ex. PW 19/A apart from letters Ex. PW 19/B and Ex. PW 19/C and outpass application Ex. PW 19/D. Upon being cross examination by Ld. APP he identified Anita as a lady brought by police. He conceded that he identified the accused Anita on pointing out Ld. APP and added that he has not seen this woman earlier.
33.PW-20 is ASI Mahipal Singh. He was a photographer and took 10 photographs from different angles. He proved the photographs as Ex.
Contd/.........
/18/ PW 20/1 to 10 and negatives as Ex. PW 20/11 to 20.
34.PW-21 is Inspector Devinder Singh Drafts man Crime Branch . He proved the scaled site plan as Ex. PW 21/A and site plan as Ex. PW 21/B.
35.PW22 is Attar Singh brother of accused Narender he identified his signature on seizure memo Ex. PW22/A but claimed that he was asked to sign on blank paper.
36.PW23 Retired Inspector Puran Singh is the part IO of this case. He proved Ex.PW15/B which is seizure memo of duty slip of PW6 Conductor Hari Singh given to him by ATI Ram Parkash as Ex. PW15/A .
37.PW24 is Omkar Singh he was posted in 2nd Batalian of CRPF at Ravinder Rangshala. He stated that on 28.8.88 he saw two males and a female visitors sitting with Surinder in the tent of his colleague Surender. He stated that thereafter on 10.9.88 police team brought accused Narender , he identified Anita as the girl who was sitting in the tent of Surender. In his cross examination he stated that police did not record on the spot. He conceded that Anita is already present in the court.
38.PW25 HC Sumer Singh of 2nd Battalian in CRPF and he deposed on the Contd/.........
/19/ lines of PW24. He too identified accused Narender and Anita as the person whom he had seen in the tent. He claimed that police recorded his statement and they brought Anita in Rangshala to their Btln. but as per police case, it was recorded on 2.10.1988. He conceded that he did not see Anita and Narender at any after 28.8.1988 during the investigation of trial.
39.PW26 is Inspector Ravinder , he was posted as SI at PS Sri Niwas Puri . On that day he arrested accused Surender on receiving the message that he is involved in a murder case. He allegedly recorded his disclosure statement and sent the information to SHO PS Timarpur.
40.PW27 is SI Dalel Singh , he was initial IO of R.K.Puram case of FIR No. 275/88 U/s 365 IPC. He claimed that on 8.9.88 he brought Anita from her parental house at Kanuda, PS Bahadurgarh, Haryana and interrogated her. He also recorded her disclosure statement Ex. PW27/A dated 9.9.88. He proved pointing out memo Ex. PW27/B through which accused Anita pointed out the place where her husband was allegedly murdered. He deposed that after he came to know dead body was lying in a pond of village in the area of PS Timar Pur, accused Anita led the police party to Timar Pur where officials of PS Timar Pur were present. According to him complainant PW6 Jagdev Singh identified Contd/.........
/20/ the dead body from his underwear. He stated that he reached the pond alongwith the complainant where the body was lying in the pond. He gave statement to IO of PS Timarpur. He denied suggestion that Anita had not accompanied him to the pond. He was confronted with his 161 Cr.P. C. statement Ex. PW27/DA where the factum of Anita accompanied him to the pond does not find mention.
41.PW28 SI Badri Dutt of Special Branch was posted as ASI in PCR on 10.9.88 and on that day upon receiving the message he reached the spot, he remained there till local police arrived.
42.PW29 HC Chandra Kumar was posted at PS R.K.Puram as Constable and he witnessed the disclosure statement given by accused Anita as Ex. PW27/A.
43.PW30 Ct. Rakesh was Wireless Operation who received the PCR message of sighting of dead body.
44.PW31 Retired SI Ram Mehar Singh, he witnessed the seizure of dead body of deceased on 24.9.88.
45.PW32 is Inspector Bishan Mohar who was the part of the team which Contd/.........
/21/ accompanied Anita to the house of Ran Singh which was allegedly pointed out by her as Ex. PW27/B.
46.PW33 Constable Jai Inder Singh witness arrest of accused Surender Ex. PW33/A.
47.PW34 is ASI Lakhi Ram , he was MHCM of PS Timarpur. He has proved relevant extract of entires in register no.19 of different dates from Ex.PW34/A to Ex. PW34/D.
48.PW35 is Inspector Data Ram , he was posted in Crime Branch who took over the investigation of this case. He sent exhibits to the CFSL and moved application for TIP of accused Narender. He prepared the challan and filed it in the court.
49.PW36 Inspector D.N. Kaushik was SHO PS Timarpur who investigated this case initially. He deposed that on receiving the message of sighting of a dead body, he reached the pound at Gopal Pur . Upon finding the body he got it photographed and got the FIR registered. He prepared the site plan Ex. PW36/B besides DD No.3A Ex. PW36/A and completed 174 Cr. P.C proceedings. According to him at this juncture Jagdev Singh and SI Dalel Singh of PS R.K. Puram arrived. Jagdev Contd/.........
/22/ Singh identified the body from the underwear. At the instance of Jagdev Singh underwear was seized and jute rope was also seized. He recorded statement of Jagdev Singh, Dalip Kumar and SI Dalel Singh. He was handed over copy of documents by IO of PS R.K. Puram, whereby they came to know that Anita is in judicial custody in connected FIR No.365/88 of PS R.K. Puram. On 12.9.88, he formally arrested Anita after issuance of production warrants. He took her police custody remand and recorded 2nd disclosure statement Ex. PW36/C. She allegedly led the police party to CRPF 2nd Btln of Ravinder Rangshala, Mandir Marg, Delhi. There he seized the kit of accused Narender. She is also shown to have pointed out the shop of PW1 Babu Ram where they allegedly consumed cold drink. She led the police party to Rajkot on 14.9.88. Although it is located in Ludhiana, Punjab but as per this witness it is in Haryana. She is said to have pointed out the room where she allegedly lived with Narender for few days. Vide his application Ex. PW36/E, PW36 seized the leave record of accused Narender apart from seizing his clothes. Accused Narender was arrested and brought to Delhi on 15.9.88. Separate disclosure of accused Narender was recorded Ex. PW36/F. Fresh pointing out memo of the alleged place of murder and the place where the body was thrown after murder by keeping in the jute bag was prepared Ex. PW36/H. On 17.9.88 he got a message that accused Surender is Contd/.........
/23/ arrested from PS Sriniwas Puri. Accused Surender was arrested in this case and his separate disclosure statement Ex. PW36/I was recorded. His police custody remand was taken. On 22.11.1988 he arrested accused Ran Singh. On his pointing out cycle allegedly used for disposing of the dead body was seized vide Ex. PW36/M. Vide memo Ex.PW36/O wooden box containing samples from the police station was seized and deposited. He identified the articles of the parcel in the court apart from other articles. In his cross examination he deposed that they reached the pound at about 9.15 AM and after reaching there he started inquest proceedings. He remained at the spot up to 5.00 PM - 5.30 PM for investigation. In the examination of chief he stated that he received the copy from PS R.K. Puram but in his cross he categorically stated that no papers were exchanged in PS R.K. Puram. He claimed that they went to PS R.K. Puram and they came to know about Anita that she is in judicial custody. On being asked he stated that time taken in traveling from Raj Kot to Delhi is 9-10 hrs. He said that he did not care to read FIR No. 365/88 of PS R.K. Puram. He stated that they must have reached the spot at 10.45 PM. He denied that no arrangement was made for Test Identification Parade of accused from the witnesses of CRPF.
50.PW37 HC Manju received a telephonic message on 9/10/1988 while he Contd/.........
/24/ was posted at PCR as Constable and he sent the relevant message to PS Timarpur.
51.PW38 Inspector Randeep Talwar was Duty Officer of PS Vinay Nagar on 3.9.98 ( it could be 3.9.88 instead of 1998 and appears to be typographical error ) when PW6 got lodged a missing report vide DD No.8A qua Om Kumar and Anita and he has proved the true copy of the same Ex. PW 38/A.
52.PW39 is Satish Kumar is owner of the house where Anita and Narender allegedly stayed together in Rajkot Ludhiana. He stated that he handed over the keys of the house of the first floor on the asking of one ASI Ziley Singh of CRPF , he handed over the key of the first floor to him when he was told that person serving in CRPF wanted to live there with his family. The keys were handed over back to him by ASI Ziley Singh after 5-7 days. He claimed that he had not seen the person who stayed at his house. This witness was turned hostile and he denied the suggestion that accused Anita was the person who stayed at his house.
53.PW40 Sh. Sukhdev Singh Ld. the then Ld. MM proved the TIP application of accused Narender as PW40/A. 2nd application moved in this regared was Ex. PW40/B as TIP could not be conducted on the first Contd/.........
/25/ scheduled date. Ex. PW40/C is proceedings of the TIP.
54.PW41 HC Smt. Keshwati joined the investigation of this case from PS R.K. Puram, she stated that accused Anita pointed out the house No.6 at village Dhir Pur belonging to Ran Singh. In her cross examination she stated that they left PS R.K. Puram at 7.00 - 8.00 PM and reached Dhir Pur and at Dhir Pur they spent 10-15 minutes and then they came back to PS. Interestingly this witness does not utter even a whisper about the visit of Anita to the pond from where dead body was allegedly found.
55.PW42 is SI Jagdish , he was posted in PCR and according to him PW Narender gave a message that his brother Surender who is involved in murder case at Timarpur is sitting in the tea shop near DTC Depot Okhla II. He gave the said message on telephone to PS Sriniwas Puri and on the basis of the same DD No.31 B was recorded. He proved the DD Ex. PW42/A.
56.PW43 is retired Asst. Commandant Balwant Singh of CRPF he was posted at 16th Btln of CRPF at Rajkot, Ludhiana. He proved his endorsement Ex. PW43/A on Ex. PW9/A. He also proved his signatures and the official stamp Ex. PW43/B on Ex. PW9/4 . He also proved his endorsement Ex. PW43/C and PW43/D. Contd/.........
/26/
57.In order to prove the charge of murder as defined U/s 302 IPC prosecution is supposed to prove three basic ingredients. Definition of Murder U/s 300 IPC reads as under:
Section 300 IPC:-
Murder:- "Except" in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
58.There are three basic ingredients of Murder:
Ingredients of offence:- The essential ingredients of the offence under sec. 302 are as follows:-
Contd/.........
/27/
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused
3. Such act was done-
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
59.As far as essential Ingredient No.1 i.e. "Death of human being" is concerned, in order to prove this ingredient that death of Om Kumar was caused prosecution has proved post mortem report Ex. PW12/A. While proving this report, PW12 Dr. Bharat Singh who conducted the post mortem of the dead body stated that it belongs to a male aged around 25 years and he gave the time since death to 15 days withing the range of 12 to 21 days. Since the body was in advance stage of decomposition and was lying in open and was apparently preyed upon by scavengers, as evident from photograph of the body proved by PW20, ASI Mahipal as Ex. PW20/1 to Ex. PW20/10 cause of death could not be opined. The body could not have been identified to be that of Om Kumar @ Ramu from the features etc. and as such the same was identified initially by the father of Om Kumar PW6 Jagdish from his underwear. In his deposition he stated that the underwear which he was wearing and the one found on the body wearing were stitched by the mother of Om Kumar from the same piece of cloth. Both the Contd/.........
/28/ underwear i.e. one seized from the dead body and one seized after it was handed over by PW Jagdev were sent fro CFSL. As per CFSL report Ex. PB, the underwear taken off from the body was Ex.P1 in parcel No.1 while that of PW6 was ex.P7 of parcel No.7, upon physical and microscopical examination of the exhibits it was opined that they are similar of each other in colour, design and number of threads apart from weaving pattern. Although in his 161 Cr. P. C. Statement PW6 is silent on identifying the body of his son through his broken teeth but in his deposition in the court he has added. This in his cross examination done on behalf of accused Ran Singh. He deposed that his son had a broken teeth in the upper jaw and that he identified his son from this individual physical trait. However, this fact was also not found mentioned in body identification statement Ex. PW6/C recorded at the time of inquest proceedings. Separate statement of PW7 Dilip Kumar was also recorded regarding identification of deceased Om Kumar as Ex. PW7/D.
60.Apart from these oral statements, IO of this case took the help of scientific aids b requesting the Autopsy Surgeon to provide a clean skull and the jaw for identifying the same by using Super Imposition Technique with the help of photograph. The photograph was seized by the IO form his father PW6 Jagdev Singh vide memo Ex. PW6/E on the basis of detailed super imposition and tallying upper and lower jaw.
Contd/.........
/29/ The report regarding cleaning and handing over of the skull of jaw by the Forensic Scientific Laboratory regarding Super Imposition is Ex. PD. As per this report the skull and the photograph of the deceased, corresponded with each other and their anthropometric, ratios also show similarities. The expert opined that the skull and photographs are of the same person. Although defence has put suggestions to the witnesses that the dead body did not belong to Om Kumar but the overwhelming scientific evidence on record duly corroborated and supported by deposition of PW6 and PW7 father and cousin of deceased respectively shows that the dead body belongs to none other than the Om Kumar. As such it is established on record that Om Kumar @ Ramu died, however, as per post mortem report the cause of death could not be ascertained.
61.As far as ingredient No.2 and No.3 are concerned, it has been conceded by Ld. APP that in the case in hand there is no eye witness of the crime. It is stated that the whole case is based on circumstantial evidence in general and last scene evidence in particular.
62.While opening his arguments it is stated by Ld. Addl PP Sh. Zenul Abedeen for State that there is no eye witness in this case and that it is wholly based on circumstantial evidence. Before the evidence Contd/.........
/30/ available record is scanned to assess the prosecution case it would appropriate if the important land mark judgments regarding the murder trial based on circumstantial evidence are looked into the basic legal proposition in this regards are:-
63.Circumstantial Evidence:- (1) The circumstances from which the conclusion is drawn should be fully proved and the chain should be complete. (2) The circumstances should be conclusive in nature. (3) All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. (4) The circumstances should, exclude the possibility of guilt of any person other than that of the accused.
In AIR 1963 SC 74 Hon'ble Supreme Court observed , " Circumstantial Evidence means communication of facts creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference except the guilt of the accused."
In AIR 1967 SC 520 Hon'ble Supreme Court observed , " Chain of circumstances must be complete. Conjecture or suspicion must not take place of legal proof." In AIR 1967 SC 2474 Hon'ble Supreme Court observed , " Circumstantial evidence must be so complete as to Contd/.........
/31/ exclude every hypothesis other than the guilt of the accused."
In case titled " Geejaganda Somaiah Vs. State of Karnataka" AIR 2007 SC 1355 Hon'ble Supreme Court observed, " The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
The circumstances from which the conclusion of guilt is to be drawn should be fully established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In the case titled as Deonandan Mishra Vs. State AIR 1955 SC 801, it has been observed by Hon'ble Supreme Court that :
In order to convict a person on circumstantial evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. It has also held that in such a case not only Contd/.........
/32/ should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
64.In the other case titled as Anantalal Ghosh Vs. State AIR 2005 Cri LJ 4123 (SC) , it has been observed by Hon'ble Supreme Court that :
Where the evidence is of circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as, not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
65.In the other case titled as State Vs. Bhura Singh 1985 SCC (Cri)33 , it has been observed by Hon'ble Supreme Court that :
A conviction on circumstantial evidence cannot be based unless and until all the inferences to be drawn from the whole history of the case point so strongly to the commission of the crime by the accused that the defence theory appears on the face of it impossible or highly improbable.
66.In the other case titled as State Vs. Param Hans Yadav AIR 1987 SC 955, it has been observed by Hon'ble Supreme Court that :
Contd/.........
/33/ Circumstantial evidence must be consistent and consistent only with the guilt of the accused; if the evidence is consistent with any other rational explanation, then there is an element of doubt of which the accused must be given the benefit.
67.Now I shall scan the evidence brought by the prosecution against the accused persons in the guiding light of aforesaid Supreme Court Judgment. The prosecution case can be divided into following subheads for the purpose of convenience.
The last seen together Arrest of Anita The place of murder Disclosure statement of accused Motive.
68.The Last Seen Together: As far this main plank circumstance of the prosecution case is concerned, it is admitted case of both the prosecution and defence as said by Anita W/o deceased that she and her husband Om Kumar left her matrimonial house at Humayun Pur Delhi for her village on 27.8.88 for her parental house at village Kanuda, PS Bahadurgarh, Haryana for celebrating Rakshabandhan. They together left for Delhi on the next day i.e. 28.8.88 by bus. As per the prosecution, they changed the bus at Punjabi Bagh and boarded DTC Contd/.........
/34/ bus route No.631 that had destination of R.K. Puram. As per the deposition of PW2 Hari Singh who was the conductor of this bus, he knew Om Kumar @ Ramu. He said that Ramu was accompanied by a lady and a boy at around 12.00 in the noon. As per him accused Anitta was that lady and accused Narender was that boy who boaded the bus. He stated that since Anita & Narender were talking to each other, Ramu objected to it and gave her a fist blow on abdomen. He further stated that when the route of the bus ended at R.K. Puram all three of them alighted the bus. This sighting of accused, as per the prosecution case was apparently the third last sighting. This version, as putforth by PW2, was infested with several significant improvement / contradictions. As discussed (supra) he improved on the fact that accused Narender boarded the bus alongwith Ramu and Anita whereas it was not part of his statement given to the police Ex. PW2/A. He also improved when he claimed that Narender claimed to be the cousin of Anita whereas his 161 Cr.P. C statement is silent on it. There is contradiction qua the alleged assault by Om Kumar upon Anita when he said that Om Kumar gave fist blow to Anita on her abdomen while earlier it is said that she was just kicked. Another important contradictory fact which has come on record is that this witness denied his acquaintance with PW6 Jagdev where as as per PW6, it was PW2 Hari Singh. Jagdev was his acquaintance who disclosed him about this sighting. On the contrary as per PW2 Hari Singh , the only person with Contd/.........
/35/ whom he shared this alleged sighting is Jija of Om Kumar namely Ashok Kumar as they belong to the same village. He does not even whisper single word qua his meeting with PW6 Jagdev. This sighting of accused Anita, Narender and deceased Om Kumar has come on record for the first time in the typed written complaint made by PW6 with PS R.K. Puram. On that basis connected FIR having No. 275/88 was registered U/s 365 IPC. This complaint in my considered view is not only one of the most pivotal documents for this trial but also earliest in time which contained material details of Anita and her husband Om Kumar @ Ramu.
69.As a matter of fact the first step which had set the ball of criminal investigation in motion was DD entry No.8 A lodged by PW6 Jagdev on 3.9.88. Even the FIR of PS R.K. Puram is earlier in time being dated 7.9.88 when the FIR in hand was lodged at PS Timar Pur dated 10.9.88. It is further case of the prosecution that officials of PS Timar Pur had actually taken a preliminary lead in so far as they had placed accused Anita under arrest in the R.K. Puram case allegedly on 8.9.88. Narration of sequence of even which allegedly took place in bus No. 631 appears to be polls apart. Despite denial of PW2 Hari Singh of any meeting with PW6 Jagdev in his typed and signed complaint, PW6 Jagdev claimed that PW 2 Hari Singh told him that there were actually two persons who were allegedly shadowing Anita and Omkar. There is Contd/.........
/36/ also mention to the fact in respect of 3-4 persons alighted the bus which include Anita, Om Kumar and the other two boys. PW6 does not stop here. He even claims that he has come to know of names of those two boys, he also gives their names as Babloo S/o Om Parkash R/o Kanuda, PS Bahadurgarh, Haryana and Sumer R/o Kanuda, PS Bahadurgarh, Haryana or BC-1, Shalimar Bagh, New Delhi. PW6 further claimed that these two boys are known to him as they were drinking pals of his son. Despite this very important and concrete revelation, there is nothing on record to show as to what steps were taken to either arrest or at least join in the investigation these two boys namely Babloo and Sumer. Neither this complaint has been disowned by the prosecution nor any explanation has been putforth. On the contrary the contents of this FIR are in consonance with the defence taken by accused Anita. This anomaly is further deepened by the statement of IO PW36 Inspector D.N. Kaushik that he did not even care to read this FIR. It is not natural and acceptable conduct on the part of a Sr. Investigating Officer to turn a blind eye to such an important fact containing in a complaint made by father of deceased boy, in the investigation of the boy's murder case which is officially available to him. It appears that instead of picking threads and clues from the FIR lodged by the PS R.K. Puram, the endeavour was to set up whole independent story. The two boy's theory of bus route no.631 was changed to a one boy and the name of those two boys i.e. Babloo Contd/.........
/37/ and Sumer were replaced with the name of accused Narender.
70.There appears to concrete attempt to convert Anita who was victim in DD No.8 A up to 3.9.88 into a suspect/accused on 7.9.88 by her father in law PW 6 Jagdev.
71.The other pointing out memo said to have been prepared by official of PS Timar Pur was Ex. PW6/D qua the shop from where Anita , Narender and Om Kumar allegedly had cold drink at main road R.K. Puram. This was allegedly the second last sighting of accused with Anita and accused Nadar but two public witnesses in this regard namely Babu Ram and his son PW3 Sanjeev Gopal have not supported the case of the prosecution at all and have not identified either of the accused persons as the persons who came to the shop and had cold drink and hence this memo is of no aid to the prosecution case.
72.The other pointing out memo said to have been prepared with Anita is PW17/A whereby she allegedly pointed out the tent where she came with Narender and Om Kumar meet accused Surender. This place is important for the prosecution case in so far as technically this is supposed to be the last seen evidence. There is no documentary or any scientific evidence of presence of accused Anita, Narender and deceased Omkar at the spot but to support this last seen Contd/.........
/38/ circumstances prosecution has examined three witnesses namely PW11 HC Subodh Kumar, PW24 driver Omkar Singh and PW25 HC Sumer Singh all employee of CRPF. Comparative analysis of the deposition of these three witnesses throws an important and interesting proposition about the number of persons who allegedly visited Surender.
73.In his deposition PW11 HC Subodh categorically stated that on August 1988 '' A boy and a girl had come to their house to meet Surender at around 11-12 in the Noon. While as per PW24 & PW25 two males and a female had come. If PW11 is to be believed than as per his guess accused Narender and Anita were the person in their tent meaning thereby that deceased Om Kumar was not with them. PW24 & PW25 also identified accused Anita & Narender as the persons who came to their tent but they have not deposed as to who was the 3rd person. There is nothing on record to show that the alleged 3rd person whose existence was denied by PW11 was deceased Om Kumar or not. There was no attempt from the side of the prosecution to show either through the photograph or through any other mean that the 3rd person who had allegedly come to the tent was deceased Om Kumar.
74.This identification of accused Anita and Narender for the first time after 11 years of the incident also does not inspire any confidence in the absence of any prior Test Identification Parade. Since witness has Contd/.........
/39/ stated that they had never seen Anita and Narender prior to that or thereafter , it was incumbent upon the IO to get a Test Identification Parade conducted with CRPF personnels qua Anita. Admittedly no application for her regular Test Identification Parade was even moved U/s 9 of Evidence Act. Since the prosecution was going to rely heavily on last seen evidence as their sole and main circumstance to prove this case, failure to get the Test Identification Parade done is perse quite damaging for the prosecution.
75.In case titled State of Maharashtra Vs. Sukhdeo Singh, 1992 SC 2100, 2112 it has been observed by Hon'ble Supreme Court that:
Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to act on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in court after a long lapse of time and that too of persons who had changed their appearance.
In case titled Rameshwar Vs. SA 1972 SC102 it has been observed by Hon'ble Supreme Court that:
Contd/.........
/40/ Where, however, the accused, is not previously known to the witness, identification of the accused soon after arrest is of vital importance in the interest of justice and fairplay to the accused and the prosecution.
In case titled State Vs. V.C. Shukla A 1980 SC 1382 it has been observed by Hon'ble Supreme Court that:
Identification for the first time in court without being tested by a prior identification parade is valueless.
In case titled Mohanlal Gangaram Gehori Vs. State of Maharashtra , AIR 1982 SC 839 it has been observed by Hon'ble Supreme Court that:
If a witness did not know the accused before the occurrence and no test identification parade was held to test his power of identification and he was also shown by the police before he identified the accused in Court, his evidence becomes absolutely valueless on the question of identification.
75.Although record shows that TIP application of accused Narender was moved for identification by the conductor PW Hari Singh and he refused to join the same but defence has explained that after his arrest from Rajkot, Ludhiana, Punjab, he was brought to Delhi on 15.9.88 and was taken around with unmuffeled face to different places namely the pond where the body was found, to the 2nd Btln at Rangshala & to the Dhir Pur House of accused Ran Singh apart from his detention in the Contd/.........
/41/ lockup at PS Timar Pur. Admittedly record does now show that he was kept in the muffled face. In this backdrop moving of Test Identification Parade application after around 2 weeks on 27.9.88 does not entitle the prosecution to draw adverse inference against the accused and his refusal to join the TIP is apparently justified.
76.In case titled Oudh Ram Vs. The State 1982 Crl. Law Journal 1656 (Delhi) it has been observed that:
When the accused were shown to the witnesses, before the application for test identification parade was moved the accused were justified in refusing to take part in the test identification parade In case titled Tain Singh Vs. State (Delhi Admn.) 1987 Crl. LJ 53,55 (Del) it has been observed that:
It is enough if the accused brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while, he was in police custody or when he was produced in court for remand.
77.As regard the deposition of PW11 , 24 and 25, the defence has putforth proposition that they falsely deposed and identified the accused Anita and Narender just because they bore grudge against deceased accused Surender who was their colleague. It is stated that on account of untimely death of co-accused Surender they could not Contd/.........
/42/ prove, with positive evidence on record to show this enmity against them.
78.In any case owing to the aforesaid anomalies , this alleged sighting of Anita and Narender of 2nd Btln of CRPF at Ravinder Rangshala is perse very weak circumstance.
79.ARREST OF ANITA : Even the circumstances which led to the arrest of Anita are shrouded with grave suspicion due to unexplained contradictions and anomalies. As per IO of R.K. Puram. PW27 SI Dalel Singh he arrested Anita on 8.9.88 from her parental house at Bahadurgarh where he had gone with two constables. Whereas according to her father in law PW6 Jagdev , Anita was arrested and brought by the police from PS Bahadurgarh. He went on to say that he had gone to Bahadurgarh where Anita was found to be there in the custody of Bahadurgarh Police and also that she was in Bahadurgarh Police Station even before Delhi Police reached there. On the other hand as revelations made by PW7 Dilip Kumar are so serious in nature that they have magnituted of shaking and uprooting the entire prosecution case. According to him Anita was in the custody of R.K. Puram Police since 6.9.88 itself. He not only stated so but he also denied the suggestion that he was not aware about arrest of Anita by PS R.K. Puram on 6.9.88. Despite claim by IO SI Dalel PW37 that he Contd/.........
/43/ alongwith two constables arrested accused Anita from her house of Bahadurgarh on 08.09.88, but neither those two constables were examined nor personal search memo etc. were proved on record. Absence of any document of her arrest on 8.9.88 and non examination of either of the arresting witness is detriment to the prosecution case. This also strengthens the defence story of her illegal detention. It is a settled legal proportion that non-examination of a witness who is available, is detrimental to the party who withholds him.
80.Section 114 (g) of Indian Evidence Act runs as under:
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case:................. that evidence which could be and is not produced would, if produced, be unfavourable to the person withholds it;
82.In case titled Sawal Vs. State A1974 SC 778 it has been observed by Hon'ble Supreme Court that :-
In criminal case also an adverse inference will be drawn, if the prosecution does not call witnesses, who are able to prove the connection of the accused with the offence charged and to give information; but no such unfavourable inference will be drawn under similar circumstances, against the accused. It is the Contd/.........
/44/ prima facie duty of the prosecution to call all the witnesses who must be able to given important information in connection with the transaction in question.
83.The sequence of anomalies and contradictions in the prosecution case qua Anita did not end here. As far as the sequence of event which allegedly took place on 10.9.1988, the day the dead body was shown recovered from the pond, different contradictory versions have come on record. As per 161 Cr.P. C statement of PW6 and PW7 i.e. Complainant Jagdev and his nephew Dilip, respectively, only they accompanied PW27 SI Dalel Singh to the place where body was found.
This position is corroborated by the absence of signature of Anita on either of the seizure memo namely Ex. PW6/B, Ex. PW6/C and Ex. PW6/D. This situation is further supported by deposition of PW36 Inspector D.N. Kaushik IO of this case wherein he states that it was only PW Jagdev and Dalel Singh who accompanied the official of PS R.K. Puram to the site. He is totally silent on the presence of Anita at this juncture. He rather states that on 10.9.1988 Anita was in judicial custody from PS R.K. Puram. The factum of her being not present at the time of recovery of body is further fortified by the deposition of PW41 H. C. Keshwati. As per her deposition, she joined the investigation with SI Dalel Singh on 10.9.88 when at around 7-8.00 AM, Anita was taken by SI Contd/.........
/45/ Dalel Singh in house no.6, village Dhir Pur. After spending 10-15 minutes there, they came back to the police station R.K. Puram. She is totally silent on the fact it Anita was ever taken to the spot from where the body was allegedly found . Another striking calculated improvement over the charge sheeted case in contradiction to 161 Cr.P. C. statements, is that as per deposition of PW SI Dalel Singh and PW6 Anita was with them when dead body was recovered. In my considered view this is a deliberate attempt aimed of creating evidence that the dead body was recovered on the pointing out of accused Anita.
84.Another serious anomaly in the prosecution case is regarding as to who reached the spot, where the body was found, first. As per the chargesheeted case the first information which reached police qua the body was through DD No.3A whereby PCR message was received by Duty Officer of PS Timar Pur. The first person to sight the body is PW13 Partap Singh. He deposed that on 10.9.88 while he was going to his field , he saw the gunny bag which was emanating foul smell. He walked a distance to the bus stand and dialed 100 number to call the police. Interestingly he even denied that the skeleton had underwear over it. As per the deposition of PW36 Inspector D.N. Kaushik, IO of this case upon receipt of DD No.3A , he reached the spot with SI Sheesh Ram PW18, Ct. Jai Kishan and according to them after they took out Contd/.........
/46/ the dead body got it photographed and had sent ruqqa, prepared site plan and were busy doing inquest proceedings when PW6 Jagdev Singh and PW7 Dilip Kumar and PW 27 SI Dalel Singh reached the spot . Similar, statement was made by PW18 Ct Jai Kishan. According to him till the time he left the spot with rooka , officials of PS R.K. Puram had not reached there. As per the evidence of officials of PS R.K. Puram the time, when they reached the spot and did the proceedings was between 9.00 & 10.00 AM. Surprisingly as per PW6 Jagdev, he is totally silent on the presence of police official of PS Timar Pur. He has deposed as if entire proceedings was done by officials of PS R.K. Puram. According to him they reached the pond at 8.45 AM i.e. prior to the time of arrival of officials of PS Timarpur. He categorically stated that they reached the spot within 2-3 minutes of PCR van reaching there while Timar Pur SHO reached there after 5 minutes of arrival of PCR. He categorically stated '' we were the first to reach the pond.'' He also stated that even public persons were present at the spot but no attempt was made by police officials to join them. According to them they left the spot at 10.30 AM, on the other hand as per PW27 SI Dalel Singh they reached the pond at around 2-3.00 PM alongwith PW 6 and till that time the dead body was lying in the pond. PW7 Dilip Kumar deposed on the lines of PW6 and claimed that proceedings at the ponds were finished by 11.00-11.30 PM. The above contradictions qua a person's present at the spot, qua presence of accused Anita and qua Contd/.........
/47/ the timings are not of such trivial nature which can be overlooked. These contradictions go to the root of the matter and specifically shows that witness are not deposing as per the facts but are deposing as per their whims and guesses and imagination.
85.In case titled AIR 1975 SC 1962 Hon'ble Supreme Court while discussing principles of appreciation of oral evidence observed that :
Court should disengage truth from falsehood. The principle shall not apply if they are inextricably mixed up.
In case titled AIR 1974 SC 21, Hon'ble Supreme Court observed that:
If truth and falsehood are so inextricably mixed up down to the core that disengagement is impossible. Court can reject the evidence in toto.
In AIR 1977 SC 381 it has been held that :
If evidence in court contradicts statement before police on vital points , whole evidence is rendered unreliable.
86.After critically analyzing sequence of events relating to the recovery of dead body and other investigation done till the recording of disclosure statement of Anita by officials of PS R.K. Puram it is observed that there is too much of inconsistency in the prosecution story which is quite damaging.
Contd/.........
/48/
87.DISCLOSURE STATEMENT OF ACCUSED: It is a settled legal proposition that a self-inculpatory statement made by accused to the police, in custody, is hit by section 25 of Evidence Act and can not be relied in any manner. Section 25 of Evidence Act runs as under
Section 25 Evidence Act:
No confession made to a police officer shall be proved as against a person accused of any offence.
In case titled " Kamal Kishore Vs. State (Delhi Admin 1997 (2) Crimes 169 (Delhi) Hon'ble High Court observed:-
" Confession made while in custody is not be proved against the accused as the privso to Section 25/26 of this Act which is not permitted unless it is made before a magistrate and also with the statement of the accused leading to discovery cannot be used against co-accused."
88.While referring to objecting of Section 25 of Evidence Act Hon'ble Supreme Court in his case titled "STATE VS. ANIRUDH SINGH" AIR 1997 SC 2480 held that:
"The object of Section 25 is to ensure that the person accused of the offense is not induced by threat, coercion or force to make a confessional statement."
Contd/.........
/49/
89.While explaining the scope of Section 25 Hon'ble Supreme Court in AIR 1960 SC 1125,1129 held that:
" Statement of accused made to police in course of investigation cannot be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made."
90.Section 27 of Evidence Act runs as under
Section 27 Evidence Act:
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.
91.While referring to objecting of Section 27 of Evidence Act Hon'ble Supreme Court in his case titled "BODHRAJ VS. STATE AIR (2002) 8 SCC 45 held that :
"The object of Section 27 is to provide for the admission of evidence which, but for the existence of the section, cannot in consequence of the preceding sections, be admitted in evidence."
Contd/.........
/50/
92.Section 27 of Evidence Act is proviso/exception to rule of Section 25 Evidence Act and it provides that only that part of the statement can be relied during the course of trial which leads to the discovery of new facts or recovery of incriminatory evidence.
93.While explaining the essence of this Section in case titled "Suresh Vs. State" AIR 1994 SC 2420 Hon'ble Supreme Court observed:-
" the provisions of the section are based on the reasoning that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information is true.
In "State Vs. Dame" (2000) 6 Supreme Court Case 269 Hon'ble Supreme Court observed, " the basic idea embodied in Section 27 is the doctrine of conformation by the specific events the doctor is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from the prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true."
96.In her disclosure statement Ex. PW27/A accused Anita is shown to have disclosed the name of co-accused Narender, Surender @ Neetu ( since expired) and accused Ran Singh. As stated (supra) disclosure Contd/.........
/51/ made by Anita qua the role of other accused persons does not carry any evidential value. She is also shown to have pointed out the place where deceased Om Kumar was allegedly murdered i.e. house of accused Ran Singh at village Dhir Pur but nothing incriminatroy was found there. It is interesting to observe that police recorded 2 disclosures of Anita on different dates which are primarily clones to each other . Her first disclosure statement was purportedly recorded by officials of PS R.K. Puram on 9.9.88 and subsequently by official of PS Timarpur on 13.9.88 Ex. PW36/C. Between 9.9.88 and 13.9.88 there is nothing on record to show if any pointing out memo other then pointing memo Ex. PW27/B qua Dhir Pur house qua Ran Singh was prepared by officials of PS R.K. Puram. The prosecution case is totally silent as to why between 9.9.88 to 13.9.88 no attempts were made by police official of PS R.K. Puram to arrest other co-accused apart from pointing out the other places as was done subsequently by official of PS Timar Pur. As far as pointing out memo of house of Ran Singh is concerned, police prepared 2 memos namely Ex. PW27/B and PW36/G. Since the earlier memo was already prepared , it can not be said that later memo led to any discovery of fact. Perusal of the entire record shows that no incriminating thing was recovered which could connect the said room of house of accused Ran Singh at village Dhir Pur with the death of Om Kumar which could be of any evidential value. No ocular witness, signs of scuffle, blood, hair, cloth or any such Contd/.........
/52/ incriminating material was found which could even remotely connect that place with this case.
97.The other memo Ex. PW10/A is of the room where Narender allegedly lived from 29.8.88 to 6.9.88 at Raj Pura, Ludhiana, Punjab. One witness was examined by the prosecution in this regard namely PW13 & Satish Kumar who was owner of the house. This witness also failed to identify Anita or Narender as the persons who lived in the house. Although he said that he had handed over the key of first floor premises to SI Zile Singh of CRPF but in the absence of identification this plain statement not a creditable circumstance to connect that place with this case.
98.As per the record, material brought by the prosecution qua night out leave taken by accused Narender from his 16 th Btln, Rajpur CRPF, it is argued by the defence that as per leave application seized vide Ex. PW9/A, he had sought leave of 27.9.88 on account of illness of his mother . It is vehmently argued that as per IO PW 36 Inspector B. N. Kaushik in 1988, the travel time between Rajkot & Delhi was around 9-10 hours and if the prosecution case is to be believed that Narender and Anita spent night in the Dhirpur house of Ran Singh till morning of 29.8.88, how could he reached his 16th Btln Camp at Rajpur, Ludhiana, Punjab by 8.00 PM on 29.8.88 itself as per document Ex. PW9/2. There is substance in this contention and this sheer co-incidence of taking leave Contd/.........
/53/ by accused Narender can not be ipso facto regarded as a conclusive proof of his involvement in this case.
99.PLACE OF MURDER : Om Kumar as per prosecution story died at Dhir Pur house of Ran Singh. Admittedly there is no evidence to connect that place with murder. As far as co-accused Ran Singh is concerned there is not even a whisper even on last seeing qua him. The only which has been set up against him is that his house was pointed out by co- accused Narender apart from their disclosure. There is not even an iota of legally admissible evidence qua Ran Singh to connect him with this case. Even the public witness PW14 lead by the prosecution has categorically stated that he does not know the accused Ran Singh and not seen him with Surender near his house. As discussed ( Supra) no incriminating article was recovered from his house which could connect him in this case. The cycle and the radio shows to have been recovered from his house are of no assistance to the prosecution since there is nothing on record to suggest that they were in any manner used in the commission of offence as sought to be set up by the prosecution.
100.MOTIVE: In circumstantial case proof of motive is significant. There is nothing on record to show that Anita has any interest in killing her husband. More so when they were hardly married a year ago. The Contd/.........
/54/ circumstances preceding , the alleged incident and soon thereafter which are relevant as per Section 8 of Evidence Act shows that Anita and Om Kumar were leading a happy married life. Had their relation be strained or had they not been gelling well, then Om Kumar would not have escorted her to her parental house. Not only he accompanied his wedded wife but also he spent one night at her parental house which a son in law especially seldom does. Even in the initial complaint lodged by the PW6 Jagdev, he lodged missing report of both his sons and daughter in law as well . There was no suspicion or apprehension expressed therein. It was only in the written complaint filed by him on 7.9.88 that an attempt was made to impute motive upon Anita by saying that she does not want to live with her husband. If Anita ever wanted to separate from Om Kumar, she could have easily stayed back at her parental house. It does not go well that killing of her husband was the only course to get out of their marriage. On the contrary the defence taken by the accused Anita in her 313 Cr.P. C statement goes well with evidence and appears to be some what justifiable in the light of the allegation that her father in law might have roped her in this case just to abrogate and eliminate any chance of her claiming share in the ancestral property of Om Kumar. The manner in which the line of investigation was changed abruptly and inexplicably Anita was made a culprit even though she was the victim, as per the initial missing report shows some kind of high handedness .
Contd/.........
/55/ As discussed above the prosecution case is totally silent on its failure to investigating the matter against initial prime suspects namely Babloo and Sumer and turning the line of investigation headon by taking a 'U' turn by absolving the two prime suspects named by the father of the deceased and by implicating Anita and 3 other persons. The plain reading of Ex. PW6/A which forms a text of R.K.Puram FIR also shows that it might have been only Anita who pointed out the involvement of Babloo and Sumar apart from sharing the miseries which she underwent at the hand of these two suspects. When PW6 stated in the FIR that he came to know about the involvement of Babloo and Sumer in this case, there could not have been any other source apart from Anita to tell him so. As such in my considered opinion, prosecution has failed to impute any motive of accused Anita.
101.In case titled Shivji Vs. S. Stated AIR 1973 SC 55 Hon'ble Supreme Court held that :-
Evidence as to motive go a long way in cases wholly dependent on circumstantial evidence.
102.In case titled Pandran Khadia Vs. State of Orissa 1992 Crl. LJ 762, it has been held by Hon'ble High Court that :
Absence of motive is of great importance in circumstantial evidence and it should be regraded as a Contd/.........
/56/ circumstance in favour of the accused. Absence of motive would weigh in favour of the accused when the two circumstantial evidence are disbelieved. In case titled Dhaneswar Phukan Vs. State of Assam, 1984 Crl. LJ NOC 161(Gah) (DB) it has been observed by Hon'ble High Court that:
When the eye-witnesses are disbelieved and when it is found that the defence version is equally probable then absence of motive can be considered as an additional circumstance to lend weight to the defence version, As such failure of prosecution to prove any motive has proved to be the last nail in the coffin of prosecution case.
103.It is a settled legal proposition that in a case wholly based on circumstantial evidence, mere suspicion is not sufficient to record conviction. A suspicion howsoever, strong can not be made a basis of conviction in a murder trial. In case titled Ramreddy Rajeshkha Reddy (2006) 3 SCALE 452 it has been observed that :
"It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can not be on any other hypothesis. It is also well settled Contd/.........
/57/ that suspicion, however grave may be, can not be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence."
104.In case titled Partap Vs. State AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that :
The right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded.
105.In case titled Sharad Birdhichand Sarda AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that :
Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of the accused was sought to be established by circumstantial evidence.
Contd/.........
/58/
106.In view of the above discussion and considering the totality of circumstances and material available on record , I have no hesitation in concluding that prosecution has failed to prove its case beyond reasonable doubts. There is nothing on record which could connect all the charge sheeted accused with the death of deceased Om Kumar @ Ramu. All three accused namely Anita W/o Late Om Kumar, Narender Singh @ Pappu S/o Manphool Singh and accused Ran Singh S/o Shiv Ram stand acquitted of the charges U/s 302/120-B IPC . Bail bonds of accused stand canceled, surety discharged and file be consigned to record room.
ANNOUNCED & DICTATED IN THE OPEN COURT
ON : 28.11.08 ( SURINDER S. RATHI )
ASJ:FTC:DELHI
28.11.2008
Contd/.........