Delhi District Court
Fir No. 740/14 State vs . Rinku @Cholen Etc. 1 Of 541 on 20 August, 2016
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI. SC No. 45035/15 FIR No. 740/2014 PS : Karawal Nagar U/s. 302/201/34 IPC State Versus 1. Rinku @ Cholen S/o Sh. Ram Sewak R/o H. No. E-73/287, Sanjay Colony, Jhuggi Gokal Puri, Delhi. 2. Rahul @ Hanga S/o Sh. Sarwan Kumar R/o H. No. E-73/331, Sanjay Colony, Jhuggi Gokal Puri, Delhi. 3. Satish @ Bittu S/o Sh. Ram Sewak R/o H. No. E-73/A-49, Sanjay Colony, Jhuggi Gokal Puri, Delhi. 4. Amit @ Anda S/o Sh. Ariq Simon R/o H. No. E-73/221, Sanjay Colony, Jhuggi Gokal Puri, Delhi. FIR No. 740/14 State Vs. Rinku @Cholen etc. 1 of 541 5. Kewal S/o Sh. Munna Lal R/o H. No. E-73/A501, Sanjay Colony, Jhuggi Gokal Puri, Delhi. Date of Committal : 24.01.2015 Date of Arguments : 13.07.2016 Date of Pronouncement : 20.08.2016 JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 20.08.2014, a DD no. 8A was received by PS Karawal Nagar that a man was lying dead near liquor shop, Jawahar Nagar, Karawal Nagar, Delhi, which was assigned to ASI Yogesh Tyagi who alongwith Ct. Ravinder Yadav reached the spot and found a dead body of unknown person there. Crime team was informed which visited and inspected the dead body as well as scene of crime and photographer of crime team took the photographs of the spot. The identification of dead body was tried to be ascertained from the passerby but it could not be made and ultimately dead body was got preserved in the mortuary of GTB Hospital. The dead body was identified by the relatives of the deceased as Rajiv Rawat and thereafter postmortem was conducted on the dead body. It is further alleged that on 26.08.2014, the wife of deceased namely Prenana Rawat came to PS and disclosed that deceased was her husband Rajiv Rawat who had been doing the property business and was missing. It is further alleged that deceased was also residing with FIR No. 740/14 State Vs. Rinku @Cholen etc. 2 of 541 another lady namely Babita for the last 10 years and even had a daughter aged about 8 years from Babita. It is further alleged that she has two children namely Shivam and Shrya from her deceased husband and deceased had been residing with her for the last 2 months. On 19.08.2014 at about 7.00-8.00 pm, the deceased left his house by motorcycle no. DL-5SX 2285 make CD UNICON, Honda black to somewhere and was wearing blue T Shirt, blue jeans and sport shoes. It is further alleged that deceased made a call at about 9.30 pm to her and thereafter, again at 11.00 pm, to inform that he was going to meet Babita and would stay there in night. Thereafter, she did not talk to deceased. It is further alleged that on 21.08.2014, at about 1.00 / 1.30 pm, the aunt of Rajiv called her and informed that she had received a call from PS Karawal Nagar regarding a dead body recovered in the area and her phone number was found in the mobile of the deceased. On receipt of this information, her nephew Puneet and brother-in-law Tejpal went to GTB Hospital and identified the dead body. On 27.8.2014, accused Rinku @ Cholen, Kewal and Amit @ Anda were apprehended with motorcycle of the deceased and they disclosed that they along with their other associates namely Rahul and Satish killed the deceased. All the accused persons were apprehended. Accused Amit @ Anda got recovered two dandas used in the crime and accused Satish and Kewal got recovered the blood stained shoes and pants of deceased. All the accused were arrested and charge sheeted u/s 302/201/34 IPC.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 3 of 541
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. This court has framed charges against all accused u/s 302/201/34 IPC on 23.05.2015, but thereafter, charges were amended to section 302/201 r/w Section 149 IPC on 09.05.2016. All the accused persons pleaded not guilty and claimed trial.
4. To prove the allegations, prosecution has examined PW1 HC S.K. Sheoran, PW2 ASI Yogesh Tyagi, PW3 Ct. Ravinder, PW4 Smt. Prerna Rawat, PW5 Ct. Jashwant, PW6 Ct. Sanjay, PW7 HC Jile Singh, PW8 SI E. S. Yadav, PW9 HC Vinay Kumar, PW10 HC Rajiv Malik, PW11 HC Vikas Kumar, PW12 Inspector Satender Pal Singh and closed PE.
5. After PE, entire incriminating evidence was explained to the accused persons under section 313 Cr.P.C. and their statements were recorded. Accused have not examined any defence evidence, hence DE was closed.
6. To prove the case, prosecution has examined 12 witnesses including wife of the deceased. The evidence led by the prosecution is as under:-
6.1. PW1 HC S.K. Sheoran, who was the duty officer, has deposed that on 26.08.2014, IO Inspector Satender Pal presented a rukka FIR No. 740/14 State Vs. Rinku @Cholen etc. 4 of 541 Ex.PW1/3 against his endorsement Ex.PW1/2 for registration of FIR and he got registered FIR through Computer operator Ct. Akash against DD no. 41A and assigned the investigation to Inspector Satender Pal. Copy of FIR and rukka delivered to him through HC Vinay. He has also proved DD No.41A which is Ex.PW1/4 and DD No. 42A is Ex.PW1/5. He has proved DD no.8A which is Ex.PW1/6 received by HC Om Prakash, the then Duty Officer. Copy of FIR was sent to Senior Officers vide DD no. 42A. DD No. 21A and DD No. 27A were also lodged by IO, Inspector Satender Pal Singh which are Ex.PW1/7 and Ex.PW1/8. The certificate of correctness of computer system is Ex.PW1/9.
6.1.1. During cross examination, he has deposed that computer operator took 35 minutes in typing of FIR and he took five minutes in registration of FIR as well as DD No. 42A. It is admitted that DD Nos.
8A, 21A and 27A were not written in his presence and even he did not operate the computer system pertaining to FIR nor it was under
his control and supervision on the day of registration of FIR i.e. 26.08.2014.
6.2. PW2 ASI Yogesh Tyagi has deposed that on receipt of DD no.
8A, which is Ex.PW1/6, he alongwith Ct. Ravinder visited the spot of recovery of dead body near liquor shop, Jawahar Nagar, Delhi. On inspection of dead body he noticed injury marks on the body. He called the crime team. HC Jile Singh, the photographer of crime FIR No. 740/14 State Vs. Rinku @Cholen etc. 5 of 541 team took nine photographs of the spot and crime team In-charge E.S. Yadav prepared SOC report which is Ex.PW2/1 and advised to IO to get conducted the PM on the dead body to ascertain the cause of death. It is further deposed that he got preserved the dead body in the mortuary through Ct. Ravinder with request letter, but it is admitted that no clue of assailants came forward despite spot inquiry. He got fleshed the wireless message all over India regarding recovery of unknown dead body and massage is Ex.PW2/2. On 21.08.2014, Ct. Ravinder informed him that the dead body was identified by one Punnet Rawat and name of deceased was revealed as Rajiv Rawat. On 22.08.2014, he completed the inquest proceedings after recording the statements of Shivam Rawat and Puneet regarding the identification of dead body which are Ex.PW2/3 and Ex.PW2/4 and, he also filled up the inquest forms which are Ex.PW2/5 and Ex.PW2/6. On the same day, postmortem was conducted on the dead body vide PM report Ex.PW2/7. Thereafter, the dead body was released to LRs against the receipt. It is further deposed that he lifted one black mobile phone and one wrist watch from the spot lying near the dead body and seized vide seizure memo Ex.PW2/8. The doctor who conducted the postmortem on the dead body preserved viscera, clothes and blood of deceased on gauze and received by Ct. Ravinder who handed over to IO and IO seized the same. On 26.08.2014, he along with IO Inspector Satender Pal reached the spot again and IO prepared the site plan Ex.PW2/9. He has identified the mobile phone as Ex.P4 and wrists FIR No. 740/14 State Vs. Rinku @Cholen etc. 6 of 541 watch as Ex.P5. This witness has not been cross examined by the accused persons.
6.3. PW3 Ct. Ravinder has corroborated that he visited the spot of incident alongwith PW2 ASI Yogesh Tyagi and saw an unknown dead body which also could not be identified. He removed the dead body to the mortuary and got preserved it for PM. He remained deputed as guard to the dead body till its released after postmortem. On 21.08.2014, one Puneet Rawat reached GTB hospital and identified the dead body and also disclosed his name as Rajiv Rawat. ASI Yogesh Tyagi completed the inquest proceedings in his presence and he also received three sealed parcels, viscera and blood of deceased on gauze alongwith three sample seals from the doctor who conducted PM and handed over to IO who seized the same vide memo Ex.PW3/1. It is further deposed that IO also seized the wrist watch and mobile of deceased in his presence. On 26.08.2014, he delivered the copy of FIR to Sr. Officer and to the concerned Ld. MM.
6.3.1. During cross examination, he has deposed that he reached the spot of incident on 21.04.2014 at 7.00 am, but he did not visit the spot on 20.08.2014. It is further deposed that the area where dead body recovered was factory area and the factories were situated about 25 meters away from the spot of recovery of dead body. A crowd had gathered at the spot when they reached there, but IO did FIR No. 740/14 State Vs. Rinku @Cholen etc. 7 of 541 not call any factory occupant to the spot to make enquiry. It is further deposed that there no article of deceased was lying pertaining to deceased, but at a distance of 5-7 meters from the dead body some rags were lying. The face of dead body was towards sky and body was wearing blue half pant, shando baniyan and blue T-Shirt only. It is further deposed that he noticed 4-5 injury marks on the face, abdomen and legs of the deceased. ASI Yogesh Tyagi interrogated some public persons from the crowd in his presence but they were not aware about the identity of dead body, but he did not know the names of those persons who were interrogated.
6.3.2. He has further deposed that crime team officials reached the spot at about 10.00 am, but he removed the dead body from the spot to mortuary at about 11.30 am. It is denied that he did not join the investigation, but it is admitted that his statement was not recorded in this case. IO prepared the seizure memo pertaining to mobile phone and wrist watch and he signed it, but he did not remember as to whether seizure memo was prepared at PS or at the spot or at hospital, but ASI Yogesh Tyagi and Inspector Satender Pal were present there at that time. ASI Yogesh Tyagi seized the articles which were shown to the family members of the deceased in the mortuary, but neither photograph of articles was taken nor was identification mark put on it. It is further deposed that cloth piece was lying near to the dead body was not taken into possession by ASI Yogesh Tyagi in his presence. It is further deposed that 20-25 public persons were FIR No. 740/14 State Vs. Rinku @Cholen etc. 8 of 541 present at the spot when they reached, but no one could identify the deceased, but it is admitted that nothing incriminating could come forward after making spot inquiry from the public persons. He was not aware as to who informed the PCR about the dead body, but ASI Yogesh Tyagi prepared site plan of the spot, but it does not bear his signature.
6.4. PW4 Smt. Prenna Rawat has deposed that deceased was her husband who was also having relations with Babita for the last 5-6 years and also used to stay sometimes with her in night, but for the last 2 months i.e. prior to 19.08.2014, he had been residing with her alongwith his two children at Ram Nagar, Shahdara. It is further deposed that on 19.08.2014 at about 7.00 / 8.00 am, the deceased left his house by a motorcycle without disclosing his destination and was wearing two pants, one of white colour and other blank colour, besides half pant and underwear. He was also wearing blue T-Shirt of white colour besides shando baniyan. It is further deposed that deceased was maintaining a black colour mobile phone of Reliance company with SIM of TATA and also used to wear a wrist watch of white color dial and chain. It is further deposed that deceased was wearing white color sport shoes of which make she did not remember. It is further deposed that on 19.08.2014 at about 9:00 pm, she received a call of her husband and at about 11:30 pm, shee made a call to her husband and he informed her that he would not return on that night and was going to stay with Babita.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 9 of 541 6.4.1. PW4 has further deposed that on 21.8.2014 at about 1.30 pm, her buaji informed her that she had received a telephonic call from PS Karawal Nagar regarding recovery of a dead body in area of Karawal Nagar and her mobile number was found in the mobile of the deceased and they made call to her from the mobile of the deceased itself. It is further deposed that her brother-in-law Sh. Tejpal and nephew of deceased namely Puneet Rawat went to the mortuary to identify the dead body of the deceased and the same was released to family members after Post Mortem. It is deposed that motorcycle of her husband was also traceable. She has identified the photographs of the deceased. On 28.05.2015, she participated in TIP proceedings and identified two pants and one pair of sport shoes of deceased before the Ld. MM vide TIP proceedings Ex.PW4/2 and has also identified the shoes and pants as Ex.P1 and Ex.P2 (colly.). She has also identified the clothes of deceased including T-Shirt, black half pant, white baniyan, underwear etc. as Ex.P3 (colly.), mobile phone as Ex.P4, wrist watch as Ex.P5 and motorcycle as Ex.P6.
6.4.2. During cross examination, PW4 has admitted that Babita and her daughter were not interrogated by the police. It is further deposed that she received a call of her husband on 19.08.2014 at about 9.30 pm, but on confrontation of her statement Ex.PW1/1, it was recorded there that she made a call to her husband at about 11.15 pm. It is further deposed that between the periods from FIR No. 740/14 State Vs. Rinku @Cholen etc. 10 of 541 19.08.2014 to 21.08.2014, she neither visited the house of Babita nor reported the matter to police about missing of deceased and police met her on 26.8.2014. It is further admitted that prior to 26.8.2014, she neither tried to trace her husband nor made any 100 number call to inform police. It is further deposed that she did not disclose the mobile number of deceased in her complaint Ex.PW4/1 and even It is further deposed that Dinesh and her nephew visited PS on 26.08.2014, but they were not shown the seized articles of the deceased and she even did not identify the dead body of deceased in mortuary but only signed the application which was written by the police and that application is her statement which is Ex.PW4/1. It is further deposed that she was called by police to PS after 2 days from 26.08.2014 and police recorded her statement and obtained her signature on that statement, but she was not shown the belongings of her husband. Even the photographs of the deceased were also not shown to her on 26.08.2014 or 28.08.2014. It is further deposed that the motorcycle of her husband was also not shown to her between the period from 26.8.2014 to 28.8.2014. She has voluntarily deposed that motorcycle was not shown to her for two months and even it was not got released on superdari by her and the same is still lying in the police custody.
6.4.3. PW4 has further deposed that after one week from 26.08.2014, she visited the PS Karawal Nagar to collect the copy of her application dated 28.08.2014 and thereafter she has neither FIR No. 740/14 State Vs. Rinku @Cholen etc. 11 of 541 visited the PS nor police visited her house. It is further deposed that on 28.05.2015, she identified the shoes and pants of her husband out of 5-6 pairs of shoes of different colors including new and old one. It is admitted that she did not give any documentary proof regarding the ownership of the shoes to the Ld. MM during TIP proceedings and photographs of dead body were also not shown to her before TIP proceedings. She was not aware as to whether Babita was called to identify the shoes, clothes and other belongings of the deceased, but she did not disclose the description of the shoes like colour, size and design to the police in her statement dated 26.8.2014 or 28.8.2014. (statement dt. 28.8.2014 is not on record). It is further deposed that she did not disclose to the police in her statement that her husband was wearing blue jeans when he left the house on 19.08.2014, but it was found recorded in her statement. It is further deposed that she disclosed to police in her statement dated 26.08.2014 that her husband was wearing two pants, one of white colour and other of black colour, besides half pant and underwear, but on confrontation of statement, it was not found recorded in her statement. It is further deposed that she was not taken to the place where dead body of deceased was found and it was nearby to Ganga Vihar, where Babita used to stay, but it is denied that she has deposed falsely.
6.5. PW5 Ct. Jaswant has deposed that he deposited a viscera box with FSL on 10.01.2015 against RC and AD Ex.PW5/1 and FIR No. 740/14 State Vs. Rinku @Cholen etc. 12 of 541 Ex.PW5/2.
6.6. PW6 Ct. Sanjay deposited three sealed parcels alongwith forwarding letter with FSL, Rohini on 24.11.2014 vide RC and AD Ex.PW6/1 and Ex.PW6/2.
6.7. PW7 HC Jile Singh visited the spot alongwith crime team officials and took the photographs Ex.PW7/A1 to Ex. PW7/A9 of which negatives are Ex.PW7/B1 to Ex. PW7/B9. During cross examination, PW7 has deposed that he did not remember as to how many persons had gathered at the spot, but one pair of footwear (in fact one pair of slippers) is visible in photograph Ex.PW7/A6 lying near to the feet of the deceased and in photograph Ex.PW7/A9 one cloth piece is lying at some distance to the feet of deceased, but he was not aware as to whether footwear was taken into possession by the police or not. It is admitted that as per photograph Ex.PW7/A8, one empty plastic glass is also lying near to the right leg of the deceased. He noticed five visible injuries on the body of the deceased and dead body was covered with red color cloth as shown in photograph Ex.PW7/A6.
6.8. PW8 SI E. S. Yadav visited the spot as In-charge Crime team and prepared SOC report Ex.PW2/1 after inspection. During cross examination, he has corroborated that the photographer took the photographs but spot was not tempered with by anyone, however, he FIR No. 740/14 State Vs. Rinku @Cholen etc. 13 of 541 did not advise to police to lift the footwear ( in fact slippers) and red cloth sheet lying near to the feet of the deceased as shown in photograph.
6.9. PW9 HC Vinay Kumar has deposed that on 27.08.2014, he joined investigation alongwith IO Inspector Satender Pal Singh and HC Vikas Kumar. They left PS at about 12.15 pm, in search of accused alongwith IO, who had secret information about the presence of the accused. They reached at ganda nala pulia, Johri Pur and at about 12.50 pm, three accused were pointed out by the secret informer coming on motorcycle from the side of Gokal Puri and going towards Shanti Nagar, U.P. IO gave signal to stop them and secret informer identified them to be the accused persons. IO interrogated them and enquired about the motorcycle belonged to the deceased Rajiv Rawat and they disclosed that they were going to throw that motorcycle in area of U.P. They further disclosed their names as Rinku @ Chholan, Amit @ Anda and Kewal. Rinku was driving the said motorcycle and Amit and Kewal were pillion rider. IO asked 6-7 persons to join arrest proceedings but none agreed. IO verified the ownership of motorcycle through phone and seized the same vide seizure memo Ex.PW9/A. 6.9.1. He has further deposed that accused persons were arrested one by one. Accused Rinku was arrested vide arrest and personal search memo E.PW9/B1 and Ex. PW9/B2, accused Amit FIR No. 740/14 State Vs. Rinku @Cholen etc. 14 of 541 was arrested vide memos Ex.PW9/C1 and Ex. PW9/C2 and accused Kewal was arrested vide memos Ex.PW9/D1 and Ex. PW9/D2. All the accused disclosed that they had committed the murder of deceased alongwith their other two associates namely Rahul @ Hanga and Satish @ Bittu. IO recorded the disclosure statements of all accused which are Ex.PW9/E to Ex. PW9/G. All the accused were taken to PS after their arrest. In pursuance of disclosure statement of Amit @ Anda, two dandas including baseball stick and bamboo stick were recovered on the pointing out of accused which were seized vide memo Ex.PW9/H and sealed. He has identified both the dandas as Ex.P7 and Ex.P8.
6.9.2. PW9 has further deposed that accused Amit @ Anda led the police team to the flyover, Gokal Puri and got arrested two his associates namely Rahul @ Hanga and Satish @ Bittu, who were arrested vide arrest and personal search memo Ex.PW9/I1 to Ex. PW9/J2. Accused Rahul @ Hanga made a disclosure statement Ex.PW9/K and accused Satish @ Bittu also made a disclosure statement Ex.PW9/L. They further disclosed to get recovered two pants of deceased from the place underneath to water pipeline, ganda nala, near to Ambedkar college and, in pursuance of disclosure statements of accused, two pants and one pair of shoes lying under pipeline and having blood stains were recovered. IO seized articles vide seizure memo Ex.PW9/M. He has identified the accused persons as well as articles recovered at the instance of FIR No. 740/14 State Vs. Rinku @Cholen etc. 15 of 541 accused Satish and Kewal as Ex.P1 and Ex.P2 (colly). All the five accused led the police team to the spot of incident i.e. place of murder of deceased, near to public convenience, in the area of Sanjay colony jhuggi, near to baniyan tree and pointed out the spot of incident and IO prepared their pointing out memos Ex.PW9/N1 to Ex.PW9/N5. He has identified the motorcycle recovered from accused Rinku as Ex.P6.
6.9.3. During cross examination, PW9 has deposed that police team left PS at about 12.50 pm and, secret informer came to Police Station to meet IO prior to his joining investigation but information was passed on to him, but he did not remember as to whether it was mentioned in DD entry by the IO or not. It is further deposed that IO neither pass on this information to Sr. Officers nor informed to 100 number about the presence of accused persons. IO recorded the departure entry of which number he did not remember. Secret informer left the spot after pointing out towards the three accused and IO took position at a distance of 4-5 feet away. It is denied that the entire story is concocted or that motorcycle of deceased was planted upon the accused persons after arranging the same from the Police Post, Indira Puri, where it was found abandoned. He was not aware about the registered owner of the motorcycle as no ownership proof of motorcycle was produced to IO by anyone. He did not remember the names of passerby who refused to join arrest proceedings and even their names were also not noted down by IO.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 16 of 541 No notice was served upon passersby who refused to join investigation. He was not aware from which source IO verified the ownership of motorcycle recovered from the accused persons and belonged to the deceased. Accused persons were interrogated while standing at place of arrest, but it is admitted that no public person was joined during arrest, recovery, sealing and seizure proceedings carried out at the spot.
6.9.4. PW9 has denied that accused were lifted from their houses and have been falsely implicated. It is admitted that the dandas recovered at the instance of accused Amit are easily available in the market and even IO did not put any specific mark on dandas to distinguish them, but those were measured by inch-tape available with IO. It is further admitted that neither RC nor any other document of motorcycle was checked by IO before arrest of the accused persons. IO did not prepare the site plan of the spot of arrest of the accused which was thoroughfare. IO did not prepare any site plan of the place of recovery of dandas and motorcycle, but some documents were prepared by him under the direction of IO, but this fact was not mentioned in his statement. IO did not take the measurement of shoes or pants recovered at the instance of accused and even those articles were not identified by anyone to be belonging to deceased. It is further deposed that IO did not deposit sealed parcel with MHC (M) in his presence, but his statement was recorded in PS on 27.08.2014.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 17 of 541 6.9.5. PW9 has further deposed that he was not aware as to whether some persons were lifted / called by the police to find out the clue of assailants on recovery of dead body, but it is admitted that IO neither took the photographs of both the pants and shoes which were recovered underneath water pipeline at the instance of accused nor any specific mark was put on the articles before sealing and seizure. He was not aware as to which part of articles was having blood stains. They left the spot of recovery at about 7.30 / 8.00 pm and the place of arrest of accused persons at about 2.30 pm. It is denied that he did not join the investigation or that recovered articles have been planted upon the accused persons or that nothing was recovered at the instance of accused persons. It is also denied that no disclosure statement was made by accused which led to recovery of dandas, pants and pair of shoes.
6.10. PW10 HC Rajiv Malik has produced register No. 19 and RC Book. He has deposed that on 20.08.2014, ASI Yogesh Tyagi deposited one mobile phone and wrist watch of deceased vide endorsement Ex.PW10/A. On 27.08.2014, Inspector Satender Pal Singh deposited one sealed parcel containing pants and shoes of the deceased and two other sealed parcels containing dandas vide endorsement Ex. PW10/B and one motorcycle alongwith personal search of accused on the same day. On 22.10.2014, he deposited 10 sealed parcels containing exhibits and two sample seals besides postmortem report vide endorsement Ex.PW10/C. On 10.11.2014, FIR No. 740/14 State Vs. Rinku @Cholen etc. 18 of 541 viscera material alongwith sample seal and forwarding letter was sent FSL through Ct. Jaswant under the direction of IO vide endorsement Ex.PW10/D and Ct. Jaswant returned the acknowledgement Ex.PW10/E and endorsement Ex.PW10/F was made against it. On 24.11.2014, three sealed parcels with sample seal were sent to FSL, Rohini through Ct. Sanjay vide endorsement Ex.PW10/G and he returned the AD Ex.PW10/H vide endorsement Ex.PW10/I. On 13.05.2015, Ct. Sanjay brought back FSL report and submitted vide endorsement Ex.PW10/J. On 07.07.2015, Ct. Himmat brought back the viscera report vide endorsement Ex.PW10/K. 6.10.1. During cross examination, he has deposed that neither he remembered the time of deposit of sealed parcels and also that he did not obtain the signature of depositor in Register No. 19. Even the names of accused were also not mentioned in the sealed parcels.
6.11. PW11 HC Vikas Kumar has deposed that on 27.08.2014, he joined investigation with Inspector Satender Pal Singh and HC Vinay and they left PS at about 12.00 / 12.15 pm, in search of five accused persons on the basis of secret information. They reached near to ganda nala pulia, Johri Pur and there asked 6-7 public persons to join investigation, but none agreed and, at about 12.50 pm, on the pointing out of secret informer, IO stopped a bike bearing No. DL-5SX 2285 make Honda Unicom and apprehended accused Rinku @ Cholan who was driving the bike, accused Amit @ Anda FIR No. 740/14 State Vs. Rinku @Cholen etc. 19 of 541 was sitting in the middle and accused Kewal was sitting on the last seat. On interrogation, it is revealed that motorcycle belonged to deceased Rajiv Rawat and accused disclosed that Rinku and Rahul used this bike to throw the dead body of the deceased after murder. IO verified the name of registered owner of the motorcycle through phone from authority and on ascertaining that the motorcycle belonged to deceased, IO seized it vide seizure memo Ex.PW9/A. 6.11.1. He has further corroborated that all the accused were arrested vide arrest and personal search memos Ex.PW9/B1 to Ex.PW9/D2 and they made their disclosure statements vide Ex.PW9/E and Ex.PW9/G and further disclosed the names of co- accused Satish @ Bittu and Rahul @ Hanga. Accused Amit @ Anda got recovered the weapon of offence i.e. dandas from the park near Sanjay Colony Jhuggi area. Accused Kewal disclosed that he could get recovered the clothes of the deceased from the place near to Ambedkar College and also disclosed to point out the place of incident. It is further deposed that in pursuance of disclosure statement, accused Amit led the police team to the place of recovery of dandas and two dandas were recovered at his instance which were seized vide seizure memo Ex.PW9/H. Police officials also made search for co-accused Rahul @ Hanga and Satish @ Bittu at the instance of accused Amit, who led the police team to flyover, Gokal Puri and on the pointing out of accused, both accused Rahul and Satish were arrested vide arrest and search memos Ex.PW9/I to FIR No. 740/14 State Vs. Rinku @Cholen etc. 20 of 541 Ex.PW9/J2 and they also made their disclosure statements vide Ex. PW9/K and Ex.PW9/L. Accused Satish disclosed that he could get recovered one pair of shoes and two pants of deceased in pursuance of disclosure statement and, in the presence of co-accused Kewal, accused Satish led the police team to a place near ganda nala, Gokal Puri, near Ambedkar College and pointed out one pair of shoes and two pants belonging to deceased which were seized vide memo Ex.PW9/M. 6.11.2. He has further deposed that the accused led the police team to near Banyan tree and public convenience, in Sanjay colony Jhuggi area, Gokal Puri and pointed out the spot of murder of the deceased on which basis IO prepared pointing out memos Ex.PW9/N1 to Ex.PW9/N5 at the instance of all accused. He has identified all the accused persons. He has further identified the bamboo stick as Ex. P7, clothes as Ex.P1 and Ex.P2 and motorcycle of deceased as Ex. P6.
6.11.3. During cross examination, he has deposed that he did not make any departure or arrival entry to join investigation and the same may be recorded by the IO. It is further deposed that secret information was not disclosed to IO in his presence, but secret informer came there at 12.10 pm and remained present with them at Johripur nala. No DD entry was lodged regarding that secret information. It is further deposed that IO did not record the names of FIR No. 740/14 State Vs. Rinku @Cholen etc. 21 of 541 passerby who refused to join investigation and even no notice was served upon them. Colour of the motorcycle was black. He overpowered the accused Kewal. It is further deposed that the personal search of accused person was conducted by IO and accused were interrogated at the spot of arrest. Writing work was done while sitting on pavement near to pulia.
6.11.4. PW11 has denied that no disclosure statement was made by the accused person or no recovery was affected at the instance of accused in pursuance of their disclosure statements. It is also denied that motorcycle was not recovered from the possession of accused or that accused were lifted from their houses prior to 27.8.2014 and have been falsely implicated in this case. It is further deposed that disclosure statement of accused Rinku was recorded, but no article was recovered in the personal search of the accused Amit @ Anda and Rs. 40/- were recovered from the personal search of accused Rahul @ Henga. It is further deposed that accused Amit pointed out the north east corner of the park wherefrom two dandas were recovered, but no specific mark was put on those dandas to distinguish from easily available dandas. It is admitted that some persons were present inside the park at the time of recovery but those were not joined in recovery proceedings as they refused. However, he did not mention the names of those persons in the case diary. Both dandas were sealed at the spot. It is further admitted that no recovery was affected at the instance of accused Rahul @ Hanga FIR No. 740/14 State Vs. Rinku @Cholen etc. 22 of 541 in pursuance of his disclosure statement. It is denied that IO took the photographs of the accused persons from their houses 4-5 days prior to 27.08.2014 and thereafter apprehended them on the basis of same and falsely implicated in this case.
6.12. PW12 Inspector Satender Pal Singh has corroborated the testimony of PW9 and PW11 and has deposed that on 26.08.2014, complainant Prerna Rawat came to PS and he recorded her statement Ex.PW4/1 in which she disclosed that her husband left her house on 19.08.2014 without disclosing destination, but thereafter his dead body was found in the area of Karawal Nagar. He made his endorsement Ex.PW1/1 on the statement of complainant to get registered the FIR. Rukka was presented for registration of FIR. He inspected the spot of recovery of dead body at the instance of ASI Yogesh Tyagi. Duty Officer delivered the copy of FIR and rukka to him for investigation. He recorded the statement of Ct. Ravinder and dispatched the copy of FIR to Senior Officers. On 27.08.2014, secret informer informed him about the presence of accused persons and he recorded the secret information vide DD no. 21A which is Ex.PW1/7. He constituted a team consisting of HC Vikas, HC Vijay and himself and reached at Johri Pur alongwith secret informer. He asked 6-7 public persons to join investigation, but they refused and, at about 12.50 pm, on the pointing out of secret informer, he stopped motor bike no. DL-5SX-2285, Honda Unicom, being driven by accused Rinku and other accused were sitting on the bike. On FIR No. 740/14 State Vs. Rinku @Cholen etc. 23 of 541 interrogation, accused disclosed that they threw the dead body of deceased by this motorcycle. He also verified the name of registered owner of the motorcycle through phone from transport authority and the same was found belonging to the deceased which was seized vide seizure memo Ex.PW9/A. 6.12.1. PW12 arrested the accused and recorded their disclosure statements. In pursuance of disclosure statement of Amit @ Anda, he made recovery of dandas from the park near to Sanjay colony and clothes of deceased were recovered in pursuance of disclosure statement of accused Kewal, which were deposited with MHC(M). In pursuance of disclosure statement of accused Amit, he arrested accused Rahul and Satish underneath flyover, Gokal Puri arrested the presence of PW9 and PW11. He also prepared the pointing out memos at the instance of accused persons. He also made recovery of clothes, one pair of shoes and two pants at the instance of accused Satish @ Bittu against seizure memo in the presence of PW9 and PW11. He has identified the dandas as Ex.P7, pair of shoes and two pants as Ex. P1 and Ex.P2 respectively, and motorcycle of deceased as Ex.P6.
6.12.2. PW12 recorded the statements of crime team officials and seized six sealed parcels vide Ex.PW3/1 from Ct. Ravinder who received the same from mortuary. On 28.10.2014, he seized the postmortem report from Ct. Sandeep. On 10.11.2014, Ct. Jaswant FIR No. 740/14 State Vs. Rinku @Cholen etc. 24 of 541 took viscera report from MHC(M) and delivered to FSL and, on 24.11.2014, Ct. Sanjay took three sealed parcels containing exhibits alongwith sample seal from MHC (M) and deposited with FSL. He collected the photographs from District Crime Unit. He recorded the statements of Puneet, Seema, Ved Pal, Brijesh Pundir which are Ex. PW12/A to Ex. PW12/D and also collected the copy of DD No. 8A which is Ex. PW12/E. He also collected the expert opinion from FSL which are Ex. PW12/F1 to Ex.PW12/F3 and submitted viscera report vide Ex.PW12/G and got conducted TIP proceedings of shoes Ex. PW4/2. He also collected the ownership of the motorcycle from the transport authority which is Ex.PW12/H issued against Ex. PW12/I.
7. I have heard the arguments and perused the record. The accused persons have been charged that they have committed the murder of the deceased in furtherance of their common object. To prove these charges, prosecution has examined many witnesses and their testimonies have revealed that none of the witness is an eye witness to the incident. In fact, this case is based upon the circumstantial evidence. In a case based upon the circumstantial evidence, prosecution is duty bound to prove the circumstances implicating the accused to the offence for which he has been charged. Prosecution is bound to prove the incriminating circumstances against the accused which are leading to the implication of the accused to the crime, like last seen company and togetherness and also the last association of accused with FIR No. 740/14 State Vs. Rinku @Cholen etc. 25 of 541 deceased, or any incriminating recovery of articles belonging to the deceased to draw an adverse inference that accused may be an assailant, or any other circumstance which indicating that accused alone was/ is the person who had opportunity to commit the offence. However, as per the testimonies of PWs in this case, it is revealed that the prosecution has not led or prove any such evidence or circumstance to prove that deceased was lastly seen in the company and association of the accused persons, or that the accused persons were seen near to the dead body of deceased on the day of incident or soon before or after the incident, to draw an adverse inference against them.
8. PW4 Smt. Prerna Rawat is the main witness of the prosecution who has proved that on 19.08.2014 at about 7.00 / 8.00 am, deceased left his house without disclosing his destination and she talked to him twice i.e. at about 9.00 pm and at 11.30 pm and deceased informed her that he would not return to her on that night and was going to stay with Babita. Thereafter, the dead body of the deceased was recovered and she got information after two days. However, in the entire evidence of PW4, it is no where disclosed that deceased ever disclosed that he was with the accused persons or was going to meet them or informed her anything about the accused persons. Rather she was ignorant about the death of the deceased and even has admitted that she neither tried to search the deceased nor lodged any missing complaint despite the fact that deceased did FIR No. 740/14 State Vs. Rinku @Cholen etc. 26 of 541 not return back home for two days. As such, the testimony of PW4 Prerana Rawat has failed to prove any last association and togetherness of the accused persons with deceased. PW4 did not visit the spot of incident. Contrary to it, PW1 ASI Yogesh Tyagi, PW3 Ct. Ravinder and IO visited the spot of incident near to Sharab ka theka, Jawahar Nagar, Karawal Nagar, Delhi but did not notice anything adverse or anything indicating the involvement of accused persons to this offence in any manner. As such, there is no circumstantial evidence against the accused except the recovery of bike of the deceased allegedly recovered from the possession of accused Rinku, Amit and Kewal and, thereafter the recovery of clothes of deceased and also the weapon of offence made in pursuance of the disclosure statements of the accused persons. However, the recovery of articles shall be dealt with a little later.
9. PW2 has proved that he fleshed the wireless massage throughout India regarding recovery of an unknown dead body and wireless massage is Ex.PW2/2. He visited and inspected the spot of incident but did not find any clue about the accused persons/ assailants. Even the dead body was identified on 22.08.2014 i.e. after many days of incident, whereas PW4 has deposed that her buaji had received the information from the PS on 21.08.2014, as the number of buaji was found in the mobile phone of the deceased lying at the spot of incident and was recovered on the same day, but this fact could not be proved as neither buaji of the deceased has been FIR No. 740/14 State Vs. Rinku @Cholen etc. 27 of 541 interrogated and examined in this case to prove this fact nor any CDR of the mobile phone of the deceased or buaji of PW4 has been proved that any such call was ever made. It is beyond explanation if the mobile number and wrist watch of the deceased were found at the spot of incident and seized soon after recovery of the dead body, then why police did not contact to the family members or known of the deceased on the same day in the similar manner as disclosed by PW4. As such, it could not be proved that any information of the death of the deceased was ever communicated to the family members of the deceased. Viscera report of deceased has also failed to point out anything adverse except consumption of alcohol and has ruled out administration of poisonous substance. Even otherwise, it is not the case of the prosecution that deceased was given some stupefying material to cause his death. As such, there is no evidence against the accused persons to implicate them.
10. PW3 has further corroborated that there was no article found near to the dead body pertaining to deceased except wrist watch and mobile phone which were also shown to family members at the time of identification of dead body at hospital, whereas PW4 has deposed that no such article was ever shown at the time of identification of dead body which is a material contradiction, though it has no much relevance to the merit of the case to prove the involvement of the accused persons. It is beyond explanation as to how PW4 identified the articles of the deceased if those were not shown to her earlier FIR No. 740/14 State Vs. Rinku @Cholen etc. 28 of 541 prior to the deposition or investigation. As such, PW3 has failed to depose anything against the accused persons that they are involved in the incident or offence.
11. Further, PW5 and PW6 are formal witnesses and just deposited the parcels with FSL. PW7 took the photographs of the spot and PW8 just prepared the SOC report which has also failed to point out anything against the accused persons. As such, neither public nor police witnesses have pointed out the involvement of any of accused persons in the incident.
12. Now the recoveries affected at the instance of accused persons have to be dealt with. It is to be seen as to whether recoveries made at the instance of the accused persons are implicating them to the offence or not. PW9, PW11 and PW12 have proved the mode of arrest and manner of recoveries made from or at the instance of accused persons. Till the arrest of the accused persons in this case, there was no circumstance against accused which indicate their involvement to the offence in any manner. As such, till the arrest of the accused, this case was blind murder and has been solved by the arrest of the accused persons on the basis of secret information. PW9, PW11 and PW12 are the main witnesses who not only participated in the investigation but were also instrumental to the arrest and recovery of the articles pursuance to the disclosure statements of the accused. Even co-accused Rahul @ FIR No. 740/14 State Vs. Rinku @Cholen etc. 29 of 541 Hanga and Satish @ Bittu were also arrested in this case on the basis of disclosure statements of accused Rinku @ Chholan, Amit @ Anda and Kewal. As such, arrest of the accused persons also to be dealt with to prove the fairness of recoveries and to determine the involvement of the accused.
13. It is the case of the prosecution that accused Rinku, Amit and Kewal were arrested with the motorcycle of the deceased on the basis of secret information recorded DD No. 21A which is Ex.PW1/7. Though this secret information was materialized by apprehending the accused persons namely Rinku, Amit and Kewal, yet it was also regarding the presence of accused Rahul @ Hanga, who was not arrested on the basis of this information from the spot and was arrested later on, on the basis of disclosure statement of accused Amit @ Anda. It is beyond explanation if the secret information was regarding the accused of Rinku and Rahul @ Hanga, then why accused Rahul was not apprehended on the basis of the same and why he was arrested on the basis of disclosure statement of the co- accused Amit @ Anda. This fact itself suggests that either the information was not correct or such information was never received by IO.
14. As per the testimony of PW9, on receipt of secret information, they left the PS at about 12:12 p.m. and immediately reached the spot of arrest of accused alongwith secret informer and apprehended FIR No. 740/14 State Vs. Rinku @Cholen etc. 30 of 541 the accused persons at about 12:50pm, on the pointing out of the secret informer, when they were coming on a motorcycle from the side of Gokul Puri and going towards Shanti Nagar. Contrary to it, during cross examination, he has deposed that they left the PS at about 12:50 pm and PW11 HC Vikas has deposed that they reached the spot of arrest of the accused at about 12:40 pm and stopped the accused persons on motorcycle at about 1:40 p.m. which is a material contradiction. Whereas, PW12 has deposed that accused persons were apprehended by him at about 12:50 pm and secret informer was also with them by that time.
15. In fact, the testimonies of all the above said witnesses have proved that the members of the same police team have disclosed contradictory facts regarding apprehending of the accused persons at the spot on the basis of secret information. It creates a doubt about the secret information itself. The presence of the secret informer at the spot is also doubtful as PW9 has deposed that secret informer left the spot after pointing out of the accused from some distance, whereas PW11 and IO have deposed that secret informer was with them till apprehending of the accused persons. Even it is assumed for the sake of arguments that secret informer was with the police team, then also, it is beyond explanation if the secret informer came across to the accused persons and pointed them out to the police in their presence, then why he was not roped into investigation and cited as witness to this case. The purpose of concealing the FIR No. 740/14 State Vs. Rinku @Cholen etc. 31 of 541 identity of secret informer is just to save him from the accused as revealing of identity may be hazardous to his life, but if the secret informer himself revealed his identity to accused thereby coming across to them, then there was no purpose of concealing the identity of the secret informer. As such, the arrest of the accused became doubtful.
16. Further, the arrest of the accused is also doubtful on another aspect. The arrest of accused along with the motorcycle of the deceased was beyond the scope of the secret information Ex.PW1/7 and secret information seems doubtful which also render the recovery of motorcycle also doubtful. PW11 has deposed that secret information was regarding all five accused persons but it is against the testimonies of PW9 and PW12 and also against the contents of secret information Ex.PW1/7. PW9 and PW11 have deposed that IO did not ask accused to show the RC of the motorcycle before arrest of the accused persons and even no such description has been given by the IO during his examination as to wherefrom he verified the registered ownership of the motorcycle. Contrary to it, the information of motorcycle was already with him as already sought from the transport authority on 20/05/2015 through letter Ex.PW12/I and received instantly, but motorcycle was recovered from the accused persons on 27/08/2015. It is further beyond explanation if the information regarding the motorcycle was already received by IO from the RTO, then why he again sought this information at the time FIR No. 740/14 State Vs. Rinku @Cholen etc. 32 of 541 of apprehending the accused as deposed by PW9 and PW11. It is further beyond explanation if IO obtained the information of the motorcycle of the deceased immediately then why he did not take steps to recover this motorcycle and no explanation has been tendered to it as to why no steps like flashing of all India wireless massage of missing of motorcycle or posting of information on the official website of the stolen vehicle was posted by him to trace out this motorcycle and this fact itself suggests that IO was sitting idle with the investigation of this case and suddenly arrested the accused on the pretext of this motorcycle. In fact, the entire story seems concocted.
17. The involvement of the accused persons seems doubtful from another angle as well. It is beyond explanation that on the one hand, accused committed the murder of the deceased and took away the motorcycle of the deceased and also used it to throw the dead body of the deceased but, on the other hand they were roaming around by the same motorcycle with similar number plate despite lapse of 7 days of the incident and did not try to dispose it off. In fact, accused person were giving invitation to the police to arrest them with this incriminating evidence. Even it is also beyond explanation as to why accused left the mobile and wrists watch of the deceased at the spot when they robbed and took away the motorcycle of deceased. As such, the entire story of the arrest of the accused is concocted.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 33 of 541
18. So far recovery of articles of the deceased and weapon of offence is concerned, two dandas were recovered at the instance of accused Amit @ Anda in pursuance of his disclosure statement Ex.PW9/F, but this disclosure statement is silent about the spot of recovery and this information cannot be considered as admissible u/s 27 of Evidence Act. This recovery was made from a public and open space vide seizure memo Ex.PW9/H in the presence of PW9 and PW11, but still it is doubtful on various aspects. Firstly, it was made from the open space and that too without joining the public persons despite their availability. Even no specific mark was put on the dandas on recovery to distinguish them and even those were easily available in open market and false plantation of dandas/ baseball bat which are Ex.P7 & Ex.P8 may not be ruled out. Further, the use of the dandas during incident is also not proved, as neither blood was detected on the dandas nor any subsequent medical opinion was sought by the IO from the doctor concerned who conducted postmortem of the deceased to prove that the injuries caused to the deceased were possible by the dandas recovered at the instance of the accused Amit @ Anda. As such, it is fatal to this case.
19. Similarly, the clothes and shoes of the deceased were also recovered at the instance of the accused Kewal and Satish @ Billu vide disclosure statements Ex.PW9/G and Ex.PW9/L. Two pants and shoes were recovered from the place underneath to the pipeline, FIR No. 740/14 State Vs. Rinku @Cholen etc. 34 of 541 near ganda nala, Ambedkar College, having blood stains which were seized vide memo Ex.PW9/M and have proved as Ex.P1 and Ex.P2. But, again the recovery of articles was made in the absence of public persons despite their availability and no proof of ownership or identity of the clothes was collected by the IO from the PW4 or any other person to connect that the clothes and shoes were belonged to the deceased. The photographs of the spot which are Ex.PW7/A3 to Ex.PW7/A9 have proved that some other articles were also lying at the spot including a red cloth by which body was covered and slippers, but those articles have not been seized by IO and no explanation has been tendered to it. The presence of slippers as shown in the photographs has proved that deceased might have worn these slippers instead of shoes and shoes might have planted upon the accused.
20. Further, PW4 has proved the TIP proceedings of the clothes and shoes vide Ex.PW4/2 (also Ex.C3). However, TIP proceedings were conducted after a lot of delay and after committal of this chargesheet and arguments on charge on 28/05/2015, but clothes and shoes were correctly identified by complainant. However, this TIP of clothes and shoes was of no use in the absence of any explanation to this delay, as it may not be ruled out that these articles might have been shown to the complainant during this period as the same were lying with IO and even photographs were also available. Contrary to it, PW4 has admitted that she did not disclose the FIR No. 740/14 State Vs. Rinku @Cholen etc. 35 of 541 description of the clothes and shoes, likes color, size and design, in her statement. Even she did not disclose in his statement Ex.PW4/A that the deceased was wearing two pants, one of white color and other of black, besides half pant and under wear. She also did not disclose any tailoring label or other identity mark to identify the clothes. As such, in the absence of any specific identity of the clothes or shoes, it could not be proved that such clothes or shoes belonged to the deceased. It is further beyond explanation if the deceased was murdered by the accused persons they why they did not destroy these clothes and shoes of the deceased and kept them aloof to hand over to the police on their arrest. In fact, the recoveries made at the instance of the accused persons in pursuance of their disclosure statements, without pointing out of the specific spot of recoveries, are not admissible u/s 27 of Evidence Act and recoveries are tainted.
21. Strangely, the incident took place in the summer month of August, 2014, but deceased was wearing one half pant, two full pants, underwear, T-Shirt and shoes and no explanation has been tendered as to why deceased worn so many clothes in such weather. It is beyond imagination of a common and prudent man that a person in healthy mental condition would wear so many clothes in such weather and it is not the case of the prosecution that deceased was suffering from any mental condition to wear such clothes. As such, story of prosecution is per se not reliable. Admittedly, a number of FIR No. 740/14 State Vs. Rinku @Cholen etc. 36 of 541 articles as shown in the photographs on record have not been seized by the IO and in the absence of any plausible explanation, it shall be considered that those articles were against the story of the prosecution due to have been deliberately concealed from the court and an adverse inference is bound to be drawn against the prosecution.
22. In view of my discussion herein above, it stands proved that there was no reason to the police to apprehend the accused persons on the charges of the murder of the deceased Rajiv Rawat. Though the involvement of the accused persons is beyond explanation, yet even it is assumed for the sake of arguments that accused were found driving the motorcycle of deceased, then also it may not be ruled out that either accused persons were found in possession of the motorcycle of the deceased being received from someone else without the knowledge of murder or that motorcycle was planted upon accused, otherwise any murders would not keep such incriminating evidence with him especially when the accused has previous criminal record. As such, merely possession of the motorcycle of deceased could not prove that the accused persons have committed the murder of deceased. As such there is no evidence is available on record to prove the guilt of the accused.
23. Since this case is based upon the circumstantial evidence and motive gains significance, but prosecution has not proved any motive FIR No. 740/14 State Vs. Rinku @Cholen etc. 37 of 541 of the accused persons to commit this offence. Motive disclosed by IO is flimsy that accused and deceased entered into scuffle during drinking session and accused committed the murder of deceased during that scuffle. This motive has been disclosed in the disclosure statements of accused persons also, but no such evidence has been led to prove this motive and disclosure statements are not admissible in law. As such, there was no motive available to accused persons to commit this offence.
24. Post Mortem Report of deceased which is Ex.C1 has proved that deceased was brutally assaulted and he sustained as more as 38 injuries all over the body. The nature of injuries were including abrasion, contusion and incised wounds measuring between the measurements 1cm x 0.5cm to 37cm x17 cm and were present from head to ankle joints. The injuries noticed during PM are:
Scalp-Extravasations of blood present underneath the scalp.
Chest cavity contained about 500ml of blood.
Horizontal factures of the second, third segment of the body of sternum along with extravasations of blood present at the fracture end.
7-8 Right and 2-6 Left ribs were fractured in mid-clavicular line along with extravasations of blood at facture ends and in surrounding tissues.
Time of death was about two days.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 38 of 541 Cause of death was hemorrhagic shock as a result of ante mortem injury liver and multiple bruising of body produced by blunt force impact.
Injury no 24-"Reddish contusion measuring 7cm x4.3cm in size present lateral aspect of left side abdomen, 15 cm from midline 12 cm above left anterior superior iliac spine", was independently and collectively with other injuries was sufficient to cause death in ordinary course of nature.
Injuries no 1 to 38 were collectively sufficient to cause death in ordinary course of nature.
Injury no 7 " Superficial incised wound measuring 3cm x 0.1 cm in size, horizontally placed present over lateral aspect of left supra orbital ridge, 6 cm form midline "
Injury no- 21 "Incised stab wound measuring 2cm x 0.1 cm x4 cm in size was present over dorsal aspect of left arm, 5 cm above elbow joint. The direction of the wound is upwards and medially. Both the angles are acute; one angle of the wound of the wound is more acute than the other. The wound is obliquely placed.
Injury no- 22 " incised wound measuring 2.5 cm x 0.1cm x 0.5 cm in size vertically placed present over right palm extending upto the base of little finger. The wound is present 2 cm below right wrist joint.
Injury no-23 " incised wound measuring 2.5.cm x 0.1 cm x0.5 cm in size present over left palm extending into the web spare between index and middle finger. The wound is vertically place and is 4 cm below left wrist joint", were produced by sharp edged weapon.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 39 of 541 Injuries no. 1,2,3,4,5,6,8,9,10,11,12,13,14,15,16,17,18,19,20,24,25, 26,27,28,29,30,31,32,33,24,35,36,37 and 38 were produced by blunt force impact.
25. The numbers and extent of injuries caused to the deceased all over the body suggests that the deceased was subjected to constant and long torture and it must be the handiwork of more than one person, but IO has not investigated this case from this angle. So far the involvement of the accused persons is concerned, the disclosure statements of accused persons which are Ex.PW9/E, Ex.PW9/F, Ex.PW9/G, Ex.PW9/K and Ex.PW9/L have disclosed that the deceased was caused injuries by kick and fist blows and also by two dandas recovered at the instance of accused Amit @ Anda, but in the entire disclosure statement of any of the accused persons, it is no where disclosed by any of the accused as to who used the knife or sharp edged injuries to deceased and no explanation has been tendered to it.
26. Even if the case of the prosecution is taken to be correct in view of the disclosure statements of the accused persons, then also prosecution has failed to explain as to how deceased sustained so many incised wounds without use of any such sharp weapon. The dandas recovered at the instance of accused Amit @ Anda are comprising of baseball and bamboo stick, but the nature of injuries sustained by the deceased suggests that so many injuries were not FIR No. 740/14 State Vs. Rinku @Cholen etc. 40 of 541 possible to be caused by kick and fist blows or by such dandas to that extent. Even the accused have also admitted in their disclosure statements that accused Rinku hit on the head of the deceased and deceased fell down, but the PM report has proved that many injuries were caused on the head portion and the injury caused to abdomen was the main reason to the death of the deceased. Even the use of the weapons recovered at the instance of accused was not ascertained to determine that those injuries were possible to be caused by these weapons or not, especially when the recovery of the weapon is also doubtful. As such, the nature of injuries caused to the deceased could not be proved to be caused by the weapon of offence recovered by the police at the instance of accused Amit, but no such weapon has been recovered by the police to connect that the sharp edged injuries were also caused by the accused persons and entire charge sheet is salient about it.
27. FSL report Ex.PW12/G has proved that the deceased was under the influence of Ethyl alcohol. The other FSL reports Ex.PW12/F1 and Ex.PW12/F2 have proved that the clothes of the deceased contained the blood stains of the deceased except one pant and pair of shoes on which blood group could not be ascertained. However, it is of no use as the ocular evidence has failed to prove the recoveries beyond doubt and no such material was collected from the spot of recovery of dead body of the deceased to prove that accused caused those injuries to the FIR No. 740/14 State Vs. Rinku @Cholen etc. 41 of 541 deceased. In fact, medical as well as expert opinion is also of no use.
28. So far the identity of accused persons is concerned, prosecution has not proved any evidence that accused have committed the murder of the deceased and there is no evidence at all on record except the disclosure statements of the accuse persons that they committed the murder of the deceased. As such, there is no evidence or circumstance against the accused persons thereby implicating them to the alleged offence and, it is highly doubtful that accused have committed this offence. They have been identified by the police officials who implicated them on the basis of secret information and it could not prove that accused are involved in the crime and their identity is doubtful.
29. So far the defense of accused persons is concerned, all the accused have taken a common defense that they have been falsely implicated in this case and defense of accused persons succeeds when prosecution has failed to prove that accused have committed the murder of deceased or tried to destroy the evidence. In fact, it was a blind murder which has been solved by IO thereby implicating the accused persons on the pretext that so called motorcycle of deceased was recovered from their possession. Even no evidence except testimonies of police officials is on record that accused persons were apprehended along with this motorcycle of the FIR No. 740/14 State Vs. Rinku @Cholen etc. 42 of 541 deceased. Again in the absence of any public witness regarding apprehending of accused along with motorcycle at the spot, it has also become doubtful. In the absence of any evidence whatsoever against the accused, prosecution has failed to prove this case against the accused persons.
30. Keeping in view of the fact and circumstances of the case, I am of considered opinion that prosecution has failed to prove that all the accused persons have committed the offence with common object. I hereby acquit all the accused persons of all charges framed against them. Their bail Bonds cancelled. Sureties discharged.
31. Before parting with this judgment, the judgment of the Hon'ble Supreme Court of India is relevant to be considered. It is held in State of Gujrat v. Kishanbhai & Anr (2014) 5 SCC 108 that :
19. Every time there is an acquittal, the consequences are just the same, as we have been notice hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the respondent-accused innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/ prosecuting teams. If he has escaped, despite being guilty, the investigating and prosecution agencies must be deemed to have seriously messes it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to over look even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade or more. The expenses incurred by an accused in his defense can dry up all his financial resources- ancestral or personal. Criminal litigation FIR No. 740/14 State Vs. Rinku @Cholen etc. 43 of 541 could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.
21. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigours of criminal prosecution. By following of the above procedure, in most criminal prosecutions, the agencies concerned will be able to successfully establish the guilt of the accused.
23. On the culmination of a criminal case in acquittal, the investigating/ prosecuting officials(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensible measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such earring officials/ officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 44 of 541
32. In another case titled Dayal Singh v. State of Uttaranchal (2012) 8 SCC 263, the Hon'ble Supreme Court of India has further held that :
In a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general. Where our criminal justice system provides safeguard of fair trial and innocent till proven guilty to an accused, there is also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there is court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this objective of a "fair trial", the court should leave no stone unturned to do justice and protect the interest of the society as well.
It is declared and directed that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.
33. A similar law was also laid down by the Hob'ble Apex Court in Shahbuddin & Anr. v. State of Assam (2012) 13 SCC 213, Ganjoo v. State of Uttrakhand, (2012) 9 SCC 532, Ashok Kumer Todi v.
Kishwar Jahan (2011) 3 SCC 758 and Karan Singh v. State of FIR No. 740/14 State Vs. Rinku @Cholen etc. 45 of 541 Haryana (2013) 12 SCC 529.
34. In view of the abovesaid law laid down by the Hon'ble Supreme Court of India, the conduct of the IO, Inspector Satender Pal Singh is to appreciated. IO has not conducted the investigation of this case in proper and fair manner. A superficial, casual and defective investigation has been carried out by the IO which cannot be ignored by this court on following points:-
34.1. That, IO taken over the investigation and inspected the spot of incident, but he did not seize the complete articles lying on the spot of the incident which were material. As per photographs Ex.PW7/A6, certain clothes including one red cloth was lying at the spot but it was admittedly not seized by the IO and even one pair of slippers were also lying near to the dead body as shown in photo Ex.PW7/A9 which was also not seized and it proves the casual approach of investigation by the IO.
34.2. That the first informant to the recovery of dead body who made a call from mobile number 971849003 has not been interrogated in this case and a fair opportunity of finding a material clue was lost by the IO.
34.3. That the motorcycle no DL-5SX-2285 make CD UNICON belonging to the deceased Rajiv Rawat allegedly was not recovered FIR No. 740/14 State Vs. Rinku @Cholen etc. 46 of 541 after the incident, but no investigation has been carried out by IO in this regard. An information Ex.PW12/I was sought regarding the ownership of this motorcycle on 20/05/2015 and information was also received immediately through document Ex.PW12/H, but IO did not take any action to find out this motorcycle thereby flashing any All India Massage to locate this motorcycle during the period from 20/05/2015 to 27/05/2015 and no explanation has been tendered by the IO to it and it proved a ground to implicate the accused persons in this case.
34.4. That the complainant Prerana Rawat disclosed in her statement Ex.PW4/1 that the deceased had worn blue T-shirt and blue jeans besides shoes, but IO has recovered one T-shirt, one brown pant, one black pant and one pair of white shoes at the instance of accused Kewal and Satish, but these recoveries of clothes were against the statement of the complainant about the last worn clothes of the deceased. Even it is assumed that the recovery was genuine than also it is beyond explanation as to why blue jeans of the deceased was not made to prove the recovery genuine. As such, the recovered articles were planted upon the accused. It was lapse on the part of the IO which cost the acquittal of the accused.
34.5. Similarly, IO has investigated this matter from the angle that deceased had sustained injuries by blunt force object, but he did not go through the PM report as per which many injuries were caused by FIR No. 740/14 State Vs. Rinku @Cholen etc. 47 of 541 sharp edged weapon but no investigation has been carried out to this effect. IO has not tendered any explanation if the accused herein caused only blunt injuries by dandas, fist and kick blows than how the deceased sustained these sharp injuries and it also became a reason of acquittal of accused persons purely attributed to defective investigation. It was also a lapse on the part of the IO.
34.6. IO allegedly made recoveries of clothes and shoes of the deceased at the instance of the accused, but he did not try to get hold the TIP of the articles through complainant immediately and got conducted the same after a lot of delay and that too only after committal of this case to this court and at the stage of arguments on charge and no satisfactory explanation has been tendered to this delay. It was again a lapse on the part of IO. Even IO did not collect the proof regarding the ownership of the articles of deceased to ascertain that those articles belonged to deceased and it rendered TIP useless. It was again also a major lapse.
34.7. That the accused have been arrested along with the motorcycle of the deceased as per the case of the police, but IO did not try to ascertain as to how this motorcycle came in the possession of the accused, but he used this motorcycle to implicate the accused persons in this case without any investigation. PW9 and PW11 were roped into investigation to prove that IO verified the ownership of the motorcycles recovered from the accused soon before recovery, but FIR No. 740/14 State Vs. Rinku @Cholen etc. 48 of 541 details of the motorcycle were already available with IO one week prior to the arrest of the accused vide documents Ex.PW12/I and Ex.PW12/H, which suggests that IO just concocted a ground to arrest the accused. Even the recovery of dandas was also planted upon the accused persons and it was also a major lapse.
34.8. There was no evidence against the accused persons since beginning but still the accused were arrested and charge sheeted on the basis of disclosure statements of the accused persons which was against the law and even accused remained languishing in jail for a long time because of implication in this case by IO without proper investigation. It was material lapse not only on the part of IO Insp. Satender Pal Singh but also on the part of SHO Insp. J.S. Mehta as well as ACP V.K. Nayyer who supervised the investigation of this case and failed to discharge their statutory duties properly.
34.9. That IO carried out the investigation without joining of any public person despite availability and no explanation has been tendered to it. It was again a lapse.
34.10. The PM report Ex.C1 has proved that deceased suffered 38 injuries and extent of suffering of injuries was from head to toe, which suggests that it was a case of constant and rigorous torture, but no investigation has been carried out by IO to this effect.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 49 of 541 34.11. As per the statement of the complainant, deceased left the house to meet one Babita, who was his second wife, but she has not been interrogated by the IO to ascertain as to whether deceased reached there or not, if so, when he left the house of Babita, but she has not been examined despite the fact that the dead body was recovered nearby to her house. In the absence of interrogation of Babita, the material part of investigation remained unfolded.
34.12. IO has not collected any evidence against accused persons that they were seen near or around the dead body of the deceased.
In the absence of any evidence or circumstances against the accused persons, the involvement of the accused could not be proved.
34.13. All the accused have admitted that they were with the deceased at the time of incident and consumed liquor together and this fact has also been even proved by the viscera report of the deceased, but IO has not collected the CDRs of the mobile numbers of the deceased as well as accused to prove this fact, whereas mobile of deceased was duly recovered from the spot along with watch and even accused persons were also maintaining mobiles as recovered from their personal search vide Ex.PW9/B2, Ex. PW9/C2 and Ex. PW9/D2. The CDR was material evidence to prove their last togetherness by cell locations and last talk record to prove the involvement of the accused, but no such efforts were made by the IO FIR No. 740/14 State Vs. Rinku @Cholen etc. 50 of 541 and it was also a material lapse.
34.14. The SOC Report Ex.PW2/I has not reflected that anything was seen at the spot but photographer clicked the photos and the articles lying at the spot were not observed at the spot of incident by the IO nor seized.
34.15. IO has prepared pointing out memo Ex.PW9/N1 to Ex. PW9/N5 that accused identified the spot of incident where they committed the murder of the deceased, but that spot is different to the spot of recovery of dead body as shown in site plan Ex.PW2/9, but no site plan of that spot where murder took place was prepared by the IO to prove that any such spot was ever pointed out by the accused persons. It was again a material lapse.
34.16. As per site plan Ex.PW2/9, a police booth and wine shop were near to the spot of incident but no investigation has been carried out from them to ascertain the presence of the accused as well as injured to the nearby to the spot where they consumed liquor and also the spot where the dead body was thrown and it was also a material lapse.
34.17. The information of the death of the deceased and identification of the dead body was made through the number detected in the mobile phone of the deceased and buaji of deceased FIR No. 740/14 State Vs. Rinku @Cholen etc. 51 of 541 was informed after two days of recovery of dead body as disclosed by the PW1, but it is beyond explanation as to why this information was not given on the same day of recovery of dead body as the mobile of the deceased was recovered at the spot itself along with the dead body on the same day. Even the person to whom information was given has not been cited as witness to this case nor examined u/s 161 Cr.P.C. and no explanation has been tendered to it.
34.18. The spot of arrest of the accused persons is not certain and no site plan of the place of arrest of the accused has been prepared. The site plans of recovery of dandas and clothes of the deceased at the instance of accuse persons were also not prepared by the IO and no explanation has been tendered to it.
34.19. All such lapses on the part of investigating officer have suggested that the entire investigation carried out in this case was hypothetical and conduct of IO cannot be appreciated in any manner being blameworthy. As such, the defective investigation carried out by the IO has proved that innocent persons have been implicated in this case by the IO and this court has to acquit all the accused in such a serious case of murder and entire responsibility lies on the IO and SHO concerned who were responsible for this investigation.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 52 of 541
35. The Hon'ble High Court of Delhi has dealt with such situation in Pawan @ Diggi v. State 2014 SCC Online Del 356 where an innocent man was implicated in a foul case to find an easy way of solving a murder case, without putting any serious effort to apprehend the other culprits and held as under:
35. in the light of the above observation, we are constrained to direct the police Commissioner to take appropriate disciplinary action against the delinquent police officials, who were involved in the investigation of the crime in the said two FIRs and pending disciplinary enquiry against the main IO in the said two FIRs, no investigation involving any major crime be entrusted to him and, if any, investigation into any major crime is already with the said IO then the same shall be personally monitored by the concerned DCP of the district.
36. Similar judgment was followed in Baljeet Singh & Anr v. State 2014 SCC Online Del 1797 and further held that :
173. Considering the aforesaid dicta in the light of the facts of a case at hand, we are of the view that the investigating officer of the case and other members of the investigating team were totally negligent in carrying out purposeful investigation in the present case and they did not even bother to follow the very basics of the investigation. We therefore, direct the Commissioner of Police to hold a proper departmental inquiry against the conduct of the concerned Investigating officers, the members of the investigation team and all the other concerned officers, who were supervising and monitoring the investigation of the said case and to take suitable action against them for carrying out their duties in the most shoddy and negligent manner.
37. The facts of the above said cases are also applicable to the present case, as in this case also not only investigation was shoddy and faulty but also leading to the false implication of the five accused persons who remained confined to judicial custody for a long time and entire blame lies to faulty investigation.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 53 of 541
38. In view of my observations regarding the conduct of the IO, SHO and ACP concerned, who were responsible for conducting as well as supervision of investigation, the conduct of the above said officers are liable to be brought into the notice of the Commissioner of Police, Delhi. Let the copy of the judgment be sent to the Learned Commissioner of Police, Delhi, to look into the matter and to consider the action as directed by the Hon'ble Supreme Court of India in Kishanbhai case (supra) and by the Hon'ble Delhi High Court in Pawan @ Diggi (supra) and Baljeet Singh case (Supra), in time bound manner and also to communicate to this court.
File be consigned to record room after due compliance.
Announced in open court (Devender Kumar)
today on 20.08.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 740/14 State Vs. Rinku @Cholen etc. 54 of 541