Delhi District Court
State vs . Jamil @ Kalu And Another on 31 January, 2012
State Vs. Jamil @ Kalu and another
IN THE COURT OF SH. PAWAN KUMAR JAIN,
ADDL. SESSIONS JUDGE-01(CENTRAL):DELHI
SC No. 54 of 2010
ID No: 02401R0305132010
FIR No: 87/2010
PS. : NDRS
U/S : 302/34/120B IPC
STATE
VERSUS
1. JAMIL @ KALU
S/o Sh. Sagir Ahmed
R/o Village Bhapura,
PS Singhwara,
District Darbhanga,
Bihar.
........Accused no.1
2. SUNIL BIHARI
S/o Naveen Prasad
R/o Village Dholpur,
PS Kankar Bagh,
District Nawada
Bihar.
........Accused no.2
Date of Institution : 05.07.2010
Date of Commital to Sessions Court : 30.11.2010
SC No. 54/2010 Page no. 1 of 33
State Vs. Jamil @ Kalu and another
Date of Judgment reserved on : 19.01.2012
Date of pronouncement of judgment : 31.01.2012
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State
Ms. Vivek Dimple, Advocate, Amicus Curiae for accused no.1
Sh. Deepak Sharma, Advocate, Counsel for accused no.2
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on April 8, 2010 at about 7.05 a.m, one person named Mohd. Shamshad @ Tisari informed the police on phone that one person named Santosh @ Guttar had been murdered near Pacca kaun (cemented well) towards Ajmeri Gate side, New Delhi Railway Station. The said information was recorded vide DD No.8A and same has been exhibited as Ex. PW20/A during trial. On receipt of said DD entry, Insp. Anil Jaitely along with ASI Ashok Kumar reached the place of occurrence. On reaching there, they found the dead body of one Santosh @ Guttar having multiple injuries. Mohd. Shamshad @ Tisari also met there, who got recorded his statement to the investigating officer, Insp. Anil Jaitely. His statement has already been exhibited as Ex. PW5/B during trial.
2. In his statement, Mohd. Shamshad @ Tisari alleged that he was rag-picker, thus used to sleep at footpath at New Delhi Railway Station towards Ajmeri Gate side. It was alleged that on SC No. 54/2010 Page no. 2 of 33 State Vs. Jamil @ Kalu and another April 7, 2010 at about 11.30 p.m, he had slept at the ground near pacca kaun, Ajmeri Gate side. At about 6 a.m. in the morning, he woke up after hearing noise and saw that four persons were beating Santosh @ Guttar mercilessly with dandas, they were shouting and saying "Aaj Sale ka kam tamam kar dete hai. Hamare kam mein roda atkata hai". It was alleged that the persons who were beating Santosh @ Guttar, were Sunil Bihari, Kalu, Ajay and Suraj. It was alleged that he knew all of them as these persons also used to sleep at the Railway Station. It was alleged that all the above assailants had inflicted multiple blows to Santosh @ Guttar with dandas on his hands, legs and head, resultant Santosh fell down on the ground and thereafter the said assailants fled away towards Kamla Market side. It was alleged that when he checked Santosh @ Guttar, there was no movement in his body as he had already died. Thereafter, he informed the police. On his statement, investigating officer prepared a rukka, which has been exhibited as Ex. PW20/B during trial and got registered an FIR for the offence punishable under Section 302/34 IPC.
3. During investigation, crime team was summoned at the spot, site plan was prepared, exhibits were lifted from the spot, dead body was sent to mortuary for preservation.
4. It was alleged that on April 9, 2010, accused Jamil @ Kalu was arrested at the instance of eye witnesses namely Mohd.
SC No. 54/2010 Page no. 3 of 33 State Vs. Jamil @ Kalu and another Shamshad @ Tisari and Raj Kumar, from desolated place behind Ginger Hotel, New Delhi Railway Station. Pursuant to his disclosure statement, one blood stained danda was recovered from bushes located at railway track leading towards Sadar Bazar. It was further alleged that there was blood on the clothes of accused, accordingly the same were seized in the police station.
5. Post-mortem was got conducted on April 15, 2010 and after post-mortem, dead body was handed over to his relative. Doctor handed over a pullandas containing clothes of deceased and blood sample, to the investigating officer which were deposited with the MHCM. Statements of eye witnesses were got recorded under Section 164 Cr.P.C. On May 8, 2010, investigation was transferred to Interstate Cell Crime Branch.
6. It was alleged that on May 20, 2010, accused Sunil Bihari was arrested in case FIR No. 71/2010 under Section 25 of Arms Act , police station Crime Branch wherein he disclosed his involvement in the present case, accordingly he was arrested in the instant case on May 21, 2010. His clothes were seized. It was alleged that accused Sunil Bihari had hatched a criminal conspiracy with other accused persons namely Jamil, Suraj and Ajay to take revenge with Santosh @ Guttar and in pursuant to their conspiracy, accused persons committed the murder of deceased Santosh @ Guttar. Accordingly, Section 120 B IPC was also added in the challan.
SC No. 54/2010 Page no. 4 of 33 State Vs. Jamil @ Kalu and another
7. Exhibits were sent to FSL for analysis, thereafter opinion on the weapon of offence was sought from the doctor who conducted the post mortem.
8. After completing investigation, challan was filed for the offence punishable under Section 302/120B/34 IPC against both the accused persons in the court of concerned learned Metropolitan Magistrate stating that the whereabouts of other co-accused persons could not be ascertained despite efforts made by investigating agency and a separate challan would be filed as and when any clue is found against them.
9. After complying with the provisions of Section 207 Cr.P.C., case was committed to the Court of Sessions on November 23, 2010 by the court of learned Metropolitan Magistrate. Thereafter, case was assigned to the learned predecessor of this Court by learned Session Judge on November 30, 2011. Accordingly, case was registered as Sessions Case no. 54 of 2010.
10. Vide order dated February 9, 2011, a charge for the offence punishable under Section 302/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
SC No. 54/2010 Page no. 5 of 33 State Vs. Jamil @ Kalu and another
11. To bring home the guilt of accused persons, prosecution has examined as many as 21 witnesses. For the purpose of discussion, they are being classified in following six categories:-
(A): EYE WITNESSES:
PW4 Raj Kumar, turned hostile
PW5 Mohd. Shamshad @ Tisari, turned hostile
(B): MEDICAL & SCIENTIFIC EVIDENCE:
PW7 Dr. S. Lal, proved the post-postmortem report
and the report of weapon of offence
PW8 Ms. Shashi Bala, Sr. Scientific officer, proved
FSL report Ex. PW8/A
(C): CONNECTED EVIDENCE:
PW9 ASI Om Parkash, deposited the pullandas with
FSL
PW13 Const. Tara Chand, photographer, proved
positive photographs Ex.PW13/A1 to
PW13/A18
PW15 HC Davis Vijay, MHC(M)
PW17 SI Dhan Singh, incharge of Crime team
(D): FORMAL WINTESSES:
PW1 Smt. Heena w/o accused Sunil Bihari
SC No. 54/2010 Page no. 6 of 33
State Vs. Jamil @ Kalu and another
PW2 Sundria w/o deceased, identified the dead body
of deceased
PW3 Bacchi Lal, brother of deceased, identified the
dead body of deceased
PW12 Sh. Ashu Garg, learned Metropolitan Magistrate recorded the statement of eye witnesses under Section 164 Cr.P.C.
PW14 HC Vijay Singh, duty officer, proved the FIR PW16 SI Mahesh Kumar, draftsman, proved the scaled site plan PW19 Const. Jai Bir, delivered the copy of FIR to Ilaka Magistrate and police officers (E) MEMBERS OF INVESTIGATING TEAM QUA ACCUSED JAMIL @ KALU:
PW6 ASI Ashok Kumar, joined investigation with PW20 PW11 HC Ramesh, joined the investigation with PW20 PW20 Inspector Anil Jaitely, investigating officer PW21 SI Baljeet Singh (F) MEMBERS OF INVESTIGATING TEAM QUA ACCUSED SUNIL BIHARI:
PW10 HC Jileshwar, proved the arrest of accused Sunil Bihari SC No. 54/2010 Page no. 7 of 33 State Vs. Jamil @ Kalu and another PW18 Insp. Sunil Kumar, investigating officer
12. Thereafter, accused persons were examined under Section 313 Cr.P.C wherein they denied all the evidence led by the prosecution. Accused Jamil @ Kalu took the plea that he had been falsely implicated in this case and police had not seized his clothes at any point of time and stated that Ex. P-2 & P-3 were planted upon him whereas accused Sunil Bihari took the plea that police had falsely implicated him in this case. However, both accused persons preferred not to lead evidence in their defence.
13. I have heard Sh. R. K. Tanwar learned Additional Public Prosecutor for the State, Ms. Vivek Dimple Advocate, learned Amicus Curiae for accused Jamil @ Kallu and Sh. Deepak Sharma Advocate, learned counsel for accused Sunil Bihari and perused the record carefully.
Common Contentions relating to both the accused:
14. Learned Additional Public Prosecutor vigorously contended that though both the star witnesses of prosecution had turned hostile on the point of identity of the accused persons as they had been won over by the accused persons, yet both the witnesses in their respective statement recorded under Section 164 Cr. P. C. categorically stated that they not only knew the assailants prior to the SC No. 54/2010 Page no. 8 of 33 State Vs. Jamil @ Kalu and another date of incident but also disclosed their names in their respective statement. It was contended that since both the witnesses had disclosed their name in their statement recorded under Section 164 Cr.P.C., no reliance should be placed on the deposition of PW4 and PW5 wherein they deposed that they did not know the accused persons. On the contrary, learned counsel appearing for the accused persons sagaciously contended that the statement recorded under Section 164 Cr.P.C. is not a substantive piece of evidence, the same can be used for the purpose of contradiction only. It was sapiently contended that no conviction can be recorded on the basis on statement recorded under Section 164 Cr.P.C. as the same has not been tested on the edge of cross-examination.
15. Moot question emerges from the submissions made by counsel for the parties as to whether the statement of a witness recorded under Section 164 Cr.P.C. is a substantive piece of evidence of not?
16. Same question arose before the Apex Court in George v. State of Kerala AIR 1998 SC 1376 wherein it was held: ".... trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under S. 164, Cr. P. C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him." In view of the above settled proposition of law, I do not find any merit in the contention of SC No. 54/2010 Page no. 9 of 33 State Vs. Jamil @ Kalu and another learned Additional Public Prosecutor.
Contentions relating to the accused Sunil Bihari:
17. Learned counsel appearing for the accused Sunil Bihari vigorously contended that there is no iota of admissible evidence against the accused to connect the accused with the alleged incident. It was contended that police had recovered his apparels stating that accused was wearing the same at the time of incident and the said apparels had blood stained mark, but during the trial prosecution has failed to produce any scintilla of evidence to show that there was any blood stained marks on the recovered clothes. Learned Additional Public Prosecutor fairly conceded that PW4 and PW5 were the star witnesses of the prosecution to prove the guilt of accused Sunil Bihari but both the witnesses turned hostile during the trial. He further admitted that on analysis no blood could be detected on the apparels recovered from the accused Sunil Bihari.
18. To bring home the guilt of accused Sunil Bihari, prosecution has relied upon the deposition of PW4, PW5, PW10 and PW18. Though prosecution case was that PW4 and PW5 knew all the assailants prior to the date of incident, yet both the star witnesses did not support the prosecution case when appeared in the witness box. PW4 deposed that he had seen some persons were beating one person named Santosh to whom he knew as Santosh was also rag-
SC No. 54/2010 Page no. 10 of 33 State Vs. Jamil @ Kalu and another picker and was residing at foot-path. He categorically deposed that he did not know the persons who were beating Santosh, however they were beating him with dandas & lathis. Similarly, PW5 deposed that he did not know the name of persons who were beating Santosh. On the contrary, he deposed that investigating officer had told him the name of assailants as Sunil, Suraj, Kalu and Ajay. He further deposed that he did not know them prior to the date of incident and had seen the incident from the distance of 20-25 steps and further deposed that he could not identify the accused persons namely Kalu and Sunil. Though both the witnesses were cross-examined by learned Additional Prosecutor at length yet nothing could be extracted to prove that either accused Sunil Bihari was present at the spot along with other assailants or he had given any blow of danda/lathi to the deceased. Thus, the testimonies of PW4 and PW5 are not helpful to the prosecution to bring home the guilt of accused Sunil Bihari.
19. PW10 HC Jileshwar is the witness of the arrest of accused Sunil Bihari in case FIR No. 71/2010 under Section 25 of Arms Act PS Crime Branch. In his cross-examination, PW10 admitted that pursuant to his disclosure statement, nothing was recovered from the accused Sunil Bihari. Thus, the testimony of PW10 is also not helpful to the prosecution to prove the guilt of accused Sunil Bihari.
SC No. 54/2010 Page no. 11 of 33 State Vs. Jamil @ Kalu and another
20. PW18 Inspector Sunil Kumar is the investigating officer qua accused Sunil Bihari. In his examination-in-chief, he deposed that he had arrested the accused Sunil Bihari on May 21, 2010 and during interrogation, he disclosed that he could get recover the clothes that he was wearing at the time of incident from his room located at Lalita Park and further disclosed that he had thrown the danda by which beating was given to the deceased, in bushes located near pacca Kaun and he could get recover the same. Pursuant to his disclosure statement Ex. PW18/A, accused got recovered one pant Ex. P-4 and T-shirt Ex. P-5 from his house. However, no danda could be recovered from the bushes as disclosed by the accused. During investigation, both the recovered apparels were sent to FSL Rohini for analysis. At the time of examination, said clothes were marked exhibit 7a and 7b. As per FSL report Ex. PW8/A, no blood could be detected on the said clothes. In other words, prosecution has failed to connect the accused with the aid of said recovered clothes with the incident.
21. Considering the above discussion, I am of the considered opinion that there is no infinitesimal evidence to connect the accused Sunil Bihari with the alleged incident.
Contentions pertaining to accused Jamil @ Kalu:
22. Learned counsel appearing for the accused Jamil @ Kalu SC No. 54/2010 Page no. 12 of 33 State Vs. Jamil @ Kalu and another fairly conceded that there are two circumstantial evidence against the accused, first that danda was recovered at the instance of the accused and second that blood of deceased was found on the clothes of the accused. But learned counsel vehemently contended that no reliance can be placed on the recovery of danda as it was recovered from an open place, which was accessible to general public, no finger print of the accused was found on the said danda. It was further argued that as per the testimony of PW20 there was blood when it was recovered, but no blood was found on the danda when it was examined in FSL. It was sagaciously contended that even if it is presumed that danda was recovered at the instance of the accused, prosecution has failed to adduce sufficient evidence to connect the said danda with the commission of offence. Thus, it was urged that no reliance can be placed on the recovery of alleged danda.
23. Per contra, learned Additional Public Prosecutor vigorously contended that since the danda was recovered from the bushes located a desolated place, it cannot be said that it was recovered from an open space. It was further submitted that doctor who conducted the post-mortem on the body of deceased categorically deposed that the injuries found on the dead body were possible by the recovered danda, thus it was urged that there is sufficient evidence to connect the danda with the commission of offence.
SC No. 54/2010 Page no. 13 of 33 State Vs. Jamil @ Kalu and another
24. To prove the recovery of danda prosecution has relied upon the testimony of PW11 HC Ramesh and PW20 inspector Anil Jaietly. Both the said witnesses deposed that after his arrest, accused Jamil @ Kalu made a disclosure statement that he had thrown the danda that was used as a weapon of offence in the commission of offence, in the bushes located near the track leading towards Sadar Bazar. His disclosure statement was recorded vide Ex. PW11/A. Both the witnesses further deposed that thereafter accused led the police party on the track leading to Sadar Bazar side, which was about 100 meters away from the place of occurrence and pointed out the bushes where he had thrown the danda and thereafter produced one danda from the said bushes. Thus, it becomes crystal clear that the danda Ex. P-1 was recovered from the bushes, which was located near rail track leading to Sadar Bazar side. Now, question arises as to whether said recovery is admissible under Section 27 of Indian Evidence Act or not?
25. Similar question arose in case State of H.P. v. Jeet Singh reported in AIR 1999 SC 1293, which was dealt with in para 26 & 27 of the judgment. Same are reproduced as under:
"Para 26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is SC No. 54/2010 Page no. 14 of 33 State Vs. Jamil @ Kalu and another open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
"Para 27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. (Pulukuri Kottaya v. Emperor, AIR 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra, (1969) 2 SCC 872) :
(AIR 1970 SC 1934), K. Chinnaswamy Reddy v. State of Andhra Pradesh, AIR 1962 SC 1788, Earabhadrappa alias Krishnappa v. State of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC 446), Shamshul Kanwar v. State of U.P., (1995) 4 SCC 430 : (1995 AIR SCW 2741), State of Rajasthan v. Bhup Singh, (1997) 10 SCC 675."
26. From the above judgment it becomes crystal clear that the crucial question is not, whether the place was accessible to others SC No. 54/2010 Page no. 15 of 33 State Vs. Jamil @ Kalu and another or not, but whether the hidden article was ordinarily visible to others or not. If it is not, then it is immaterial that the same was recovered from place which is accessible to others.
27. As from the testimony of PW11 and PW20 it is established that the danda Ex. P-1 was recovered from the bushes, which were located at an isolated place i.e. rail track leading towards Sadar Bazar. Moreover, from their testimony it is also established that danda was produced from inside the bushes. Since, the bushes were located at desolated place i.e. rail track and the danda was produced from inside the bushes, it was not visible ordinarily to others. Thus, I am of the view that the recovery of danda is within the four corners of Section 27 of the Indian Evidence Act.
28. Now coming to the next pivotal question as to whether prosecution has produced sufficient evidence to connect the recovered danda Ex. P-1 with the commission of offence or not?
29. Prosecution version is that when the danda was recovered it had blood-stained marks. To prove this fact, prosecution has relied upon the testimony of PW11 and PW20. Both the witnesses in their deposition categorically deposed that when it was recovered, there was blood on the one side of the danda. After seizure, danda was sent to FSL Rohini for analysis. As per FSL SC No. 54/2010 Page no. 16 of 33 State Vs. Jamil @ Kalu and another report Ex. PW8/A, danda was given exhibit 4 and no blood could be detected on the said danda. Even after seeing the FSL report, PW20 deposed that when danda was recovered, it had blood-stained marks. When question was put to him, did it mean that the danda which was recovered at the instance of accused, was not sent to FSL? PW20 retorted that it appeared that the blood marks had been destroyed in handling the danda. He further deposed that to preserve blood marks on the danda, he wrapped the danda in cloth, but admitted that there was no sign of blood in the inner side of the said cloth. Thus, it becomes crystal clear that there was no blood on the danda, when it was seized at the instance of accused. Had there been any blood on the danda, it would have been detected during examination at FSL. Thus, the testimony of PW11 and PW20 to the extent that danda Ex. P-1 had blood-stained marks at the time of recovery is not trustworthy. Since, no blood of deceased is found on the recovered danda, prosecution has failed to connect the danda with the commission of offence.
30 Since, learned Additional Public Prosecutor vehemently relied upon the report Ex. PW7/A, I have perused the same as well as the testimony of PW7. As per prosecution version, opinion of PW7 was sought to ascertain as to whether the injuries found on the dead body of deceased could be caused by the recovered danda. After examining the danda and injuries mentioned in the autopsy report, PW7 opined that the injuries (1) to (16) mentioned in the autopsy SC No. 54/2010 Page no. 17 of 33 State Vs. Jamil @ Kalu and another report could be possible to cause by the danda produced before him. Before discussing the testimony of PW7, it is pertinent to state here that it is admitted case of the prosecution that four persons had beaten the deceased by the means of dandas and lathis. It means during the commission of offence at least four dandas/lathis were wielded as weapon of offence. If it was so, then it is next to impossible to cause all the injuries by the recovered danda. If we examine the testimony of PW7 in this aspect, PW7 only deposed that the injuries found on the dead body of deceased could have also been possible to cause by the recovered danda. PW7 had not given any opinion with certainty that the inflicted injuries were caused by only the recovered danda. It only means that the inflicted injuries could have been possible to cause by the recovered danda as well as other dandas similar to the recovered dandas. Had blood of deceased been detected on the recovered danda, prosecution would have been in a better position to connect the danda with the commission of crime. In view of the above, I am of the opinion that testimony of PW7 is not helpful to the prosecution to establish beyond doubt that the inflicted injuries were caused by the recovered danda only.
31. Pondering over the ongoing discussion, I am of the opinion that recovery of danda Ex. P-1 is not helpful to the prosecution to connect the accused with the murder of Santosh @ Gutter.
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32. Learned counsel appearing for accused further vigorously contended that police had planted the blood stained clothes upon the accused as no such clothe was ever seized by the police. It was argued that due to that reason, investigating officer had not cited Mohd. Shamshad and Raj Kumar as witnesses on the seizure memo of the said clothes. It was contended that investigating officer had mis-used the blood collected from the spot by spilling it over the clothes of accused just to create false evidence against the accused. It was further contended that the witnesses failed to state the colour of clothes which were allegedly given to the accused when the alleged blood stained clothes were seized. It was urged if investigating officer had provided some clothes to the accused at the time of seizure of the blood stained clothes, witness would have certainly disclosed the detail of the said clothes but they failed to do so, which casts a doubt over the prosecution story.
33. On converse, learned Additional Public Prosecutor sagaciously contended that the blood stained clothes were not seized at the place of arrest to avoid the nudity of the accused and due to that reason, investigating officer did not cite both the public persons as witnesses at the time of seizure of the clothes. It was further contended that there is no ioto of evidence to support the contention raised by learned defence counsel that investigating officer either had mis-used the blood collected from the spot by spilling it over the clothes of the accused or that the blood stained clothes were planted SC No. 54/2010 Page no. 19 of 33 State Vs. Jamil @ Kalu and another on the accused. It was further submitted that the testimony of witnesses cannot be discarded merely fact that they were police official.
34. To prove the recovery of blood stained clothes, prosecution has relied upon the testimony of PW11 HC Ramesh Singh and PW20 Insp. Anil Jaietly.
35. PW11 in his examination-in-chief categorically deposed that when accused was arrested on April 9, 2010, he had noticed blood on his pant and shirt. He further deposed that the shirt was of white colour having yellow strips whereas colour of pant was Bhuri (brown). He further deposed that after reaching police station, said pant and shirt were sealed in a pullanda with the seal of AJ and the pullanda was seized vide memo Ex. PW11/C and thereafter seal was handed over to him. The shirt and pant are exhibited as Ex. P-2 and Ex. P-3 and same were identified by PW11. In his cross-examination, PW11 deposed that when the clothes of accused were seized, other clothes were given to him but deposed that he did not remember the colour of said clothes. Though suggestion was given to the witness that the clothes were planted on the accused, yet the same was denied by the witness.
36. PW20 corroborated the testimony of PW11 by categorically deposing in his examination-in-chief that at the time of arrest of SC No. 54/2010 Page no. 20 of 33 State Vs. Jamil @ Kalu and another accused Jamil @ Kallu, he had seen blood on his pant and shirt and during investigation, it was revealed that the blood of deceased had fallen on his clothes. He further deposed that after reaching police station, he had seized white colour shirt having yellow lines and brown colour pant having golden lining, which accused was wearing and having blood stained marks. He also corroborated the testimony of PW11 by deposing that the said clothes were sealed in a pullanda with the seal of AJ and said pullanda was seized vide memo Ex. PW11/C and thereafter seal was handed over to HC Ramesh. He also identified the seized clothes, which were exhibited as Ex. P-2 and P-3. In his cross-examination, he deposed that when the clothes of accused were seized, old clothes were given to him in the police station and stated that he could not tell the colour of the said clothes. He denied the suggestion that he had not mentioned this fact in the case diary because no clothe was given to the accused.
37. From the testimony of PW11 and PW20, it becomes crystal clear that the blood stained clothes were not seized at the place from where accused was arrested at the pointing out of PW5 Mohd. Shamshad and PW4 Raj Kumar but were seized subsequently after reaching the police station. I do not find any illegality in seizing the blood stained clothes after reaching the police station, if it was seized to avoid nudity of the accused provided prosecution succeeds to establish that there was blood on the clothes of accused at the time of his arrest.
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38. It is admitted case of the prosecution that accused was arrested in the presence and pointing of PW4 & PW5 but both the witnesses turned hostile and did not corroborate the prosecution version that there was any blood on the clothes of accused Jamil @ Kallu, when he was arrested. During investigation statement of both the witnesses were got recorded under Section 164 Cr.P.C which have already been exhibited as Ex. PW4/G and PW5/A. Perusal of the same reveals that both the witnesses had not disclosed therein that there was any blood on the clothes of accused Jamil @ Kallu when he was arrested. Both the witnesses in their deposition categorically denied the suggestion put by learned Additional Public Prosecutor that there was any blood on the clothes of accused when he was arrested. Thus, the testimony of PW11 & PW20 does not get any corroboration either from the deposition of PW4 & PW5 or from their statement got recorded under Section 164 Cr.P.C.
39. Before coming to the FSL report, I deem it appropriate to examine whether the exhibits were remained intact till it reached FSL. PW 20 in his examination-in-chief categorically deposed that he had deposited the parcels containing the clothes with the MHC (M) on April 9, 2010 itself. This fact is corroborated by PW15 by deposing that inspector Anil Jaietly had deposited two sealed pullandas (one parcel containing danda, another parcel containing blood stained clothes) duly sealed with the seal of AJ on April 9, SC No. 54/2010 Page no. 22 of 33 State Vs. Jamil @ Kalu and another 2010. He further deposed that on June 3, 2010 HC Tyag Raj who was working as MHC(M) on that day as he was on leave, handed over all pullandas to HC Om Parkash to deposit the same with FSL Rohini vide R.C. No. 34/21/10, which is exhibited as PW15/B. He further deposed that after depositing all the pullandas, HC Om Parkash deposited the road certificate duly acknowledged. The testimony of PW15 remained unrebutted during the trial as no question was put to the witness to dispute that the pullandas were not intact when handed over to HC Om Parkash. Thus, this Court has no reason to disbelieve the testimony of PW15. Testimony of PW15 is corroborated by PW9 ASI Om Parkash by deposing that he had collected seven sealed pullandas and three sample seals from MHC (M) on June 3, 2010 and delivered the same to FSL Rohini and the pullandas remained intact till remained in his custody. Though a suggestion was put to him that the seal was not intact on the exhibits when he collected the same from MHC(M), but it was denied by him. Testimony of PW15 and PW9 are fully corroborated by PW8 Ms. Shashi Bala Senior Scientific Officer by deposing that on June 3, 2010 seven sealed parcels were received in the office of FSL and the seals on all the parcels were intact as per the forwarding letter. In her cross-examination, she categorically deposed that FSL office as well as she also checked the seal on parcels with the sample seals and the same were found correct. Thus, from her testimony, it becomes abundantly clear that seals on the parcels were intact when it reached in the office of FSL Rohini. In other words, there is no scintilla of SC No. 54/2010 Page no. 23 of 33 State Vs. Jamil @ Kalu and another evidence to show that there was any tampering with the exhibits from the date of seizure till it reached in the office of FSL Rohini.
40. As per FSL report Ex. PW8/A, blood-stained shirt and pant of accused Jamil @ Kallu were marked as exhibit 3a and 3b respectively. Light brown gauze cloth piece described as blood sample of deceased was marked as exhibit 6 whereas the blood sample seized by PW20 was marked as exhibit 2. PW7 Dr. S. Lal who conducted post-mortem on the dead body deposed that after post-mortem all the clothes of deceased and blood soaked on gauze piece were preserved and sealed with the seal of CMO, in-charge, AAAGH and handed over to the police. Thus, it becomes clear that exhibits 2 and 6 were the blood samples of deceased whereas exhibit 3a and 3b were the blood-stained clothes which were seized by the police.
41. On analysis, blood was detected on the said exhibits. PW8 deposed that after biological examination, exhibits 2, 3a, 3b, and 6 were put subject to isolation of DNA. DNA was isolated from exhibits 3b and 6, however, DNA could not be isolated from exhibits 2 and 3a. She further deposed that DNA profile was prepared from exhibit 3b and 6. She further deposed that the alleles from the source of exhibit 6 (blood sample of deceased Santosh) were matched with the alleles on the source of exhibit 3b (pant of Jamil @ Kallu). In SC No. 54/2010 Page no. 24 of 33 State Vs. Jamil @ Kalu and another other words, it is proved beyond doubt that blood found on the pant allegedly belonged to accused Jamil @ Kallu was the blood of deceased Santosh @ Gutter.
42. From the above, it becomes crystal clear that the exhibits were remained intact till reached in the hands of expert i.e. PW8. It is also established that the blood found on the recovered pant was of deceased. Now question arises as to whether the sole evidence of DNA report is sufficient to prove the guilt of accused Jamil @ Kallu or not?
43. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the Court as far back as in1952 in Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be 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 a conclusion SC No. 54/2010 Page no. 25 of 33 State Vs. Jamil @ Kalu and another 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."
44. In C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
45. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime SC No. 54/2010 Page no. 26 of 33 State Vs. Jamil @ Kalu and another was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
46 In State of U.P. v. Ashok Kumar Srivastava, 1992 Crl. LJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
47. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal SC No. 54/2010 Page no. 27 of 33 State Vs. Jamil @ Kalu and another accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".(relied on State of Goa v. Pandurang Mohite, AIR 2009 SC 1066)
48. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622. Therein, while dealing with circumstantial evidence, Apex Court held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of Apex Court, before conviction could be based on circumstantial evidence, must be fully established. They are :
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only
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with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
49. To bring home the guilt of accused Jamil @ Kallu, prosecution has relied upon the ocular as well circumstantial evidence. Both the eye witnesses i.e. PW4 and PW5 turned hostile and did not utter a single word against the accused Jamil @ Kallu, thus their deposition is not helpful to the prosecution in any manner. During trial, prosecution has relied upon three circumstantial evidence i.e. Recovery of weapon of offence, recovery of blood stained clothes and DNA report. As already discussed, prosecution has failed to connect the recovered danda with the alleged offence. In other words, prosecution has failed to connect the accused with the incident with the aid of recovered weapon of offence. Second circumstance is recovery of blood stained clothes. As already discussed that prosecution has failed to establish beyond doubt that SC No. 54/2010 Page no. 29 of 33 State Vs. Jamil @ Kalu and another there was any blood on the clothes of accused, when he was arrested. Even also failed to establish beyond doubt that the blood-stained clothes were belonged to the accused. There is no evidence except the deposition of PW11 & PW20 that the blood stained clothes were belonged to the accused. PW4 & PW5 denied the suggestion that accused Jamil @ Kallu was wearing the said clothes at the time of his arrest. Even the alleged recovered clothes were not shown to PW4 and PW5 during the cross-examination conducted by learned Additional Public Prosecutor. In other words, there is no conclusive evidence that the recovered clothes belonged to accused. Third circumstance is the DNA report. No doubt, DNA report is strong evidence against the accused. But unless it is established beyond doubt that the blood-stained clothes belonged to the accused, no adverse inference can be drawn against the accused on the basis of DNA report.
50. Besides the above, learned defence counsel raised serious dispute about the timing of arrest of accused by arguing that investigating officer had manipulated the time of arrest in the arrest memo Ex. PW4/C. Learned Additional Public Prosecutor opposed the said contention.
51. I have perused the arrest memo Ex. PW4/C of accused Jamil @ Kallu, it is clear that there is over writing at 'AM'. As per SC No. 54/2010 Page no. 30 of 33 State Vs. Jamil @ Kalu and another memo accused was arrested at 8.00 AM whereas learned counsel contended that accused was arrested at 8.00 PM as 'PM' has been converted into 'AM'. Careful perusal of arrest memo Ex. PW4/C reveals that initially time of arrest was mentioned as 8.00 PM but subsequently it was converted into 8.00 AM by converting the 'PM' into 'AM'. Perusal of the testimony of PW11 & PW20 reveals that both the witnesses had not furnished any explanation about the said change. During the course of arguments, learned defence counsel showed the photostate copy of the arrest memo of the Ex. PW4/C wherein the time of arrest is shown as 8.00 P.M without any overwriting. The said memo has been taken on record. There is no explanation, how the 8.00 PM has been mentioned on the copy of arrest memo, which was supplied to the accused. This casts a serious doubt over the time of arrest of accused. This doubt gets further strength from the fact that the MLC of the accused had not been placed on record. Needless to say it was the bounden duty of the investigating officer to produce the accused for medical examination after arrest. There is no explanation on the part of prosecution why the MLC of the accused has not been placed on record. In the above circumstances, the overwriting over the time of arrest casts a serious doubt over the prosecution version that accused Jamil @ Kallu was arrested at 8.00 AM as mentioned in Ex. PW4/C. This further creates a doubt over the manner of the recovery of alleged blood stained clothes.
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52. Considering the above, I am of the considered opinion that prosecution has failed to establish a complete chain of evidence not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and to show that in all human probability the act must have been done by the accused.
53. No other contention is raised by learned counsel for either side.
54. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home the guilt of accused persons beyond the shadow of all reasonable doubts for the offence punishable under Section 302/34 IPC, thus, I hereby acquit both the accused persons thereunder.
Announced in the open Court
On this 31th day of January 2012 (PAWAN KUMAR JAIN)
ADDITIONAL SESSIONS JUDGE-01
CENTRAL/THC, DELHI
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