Delhi District Court
State vs . : 1) Sonu on 26 April, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 646/17
FIR No. : 275/17
U/s : 302/201/34 IPC
P.S. : Alipur
State Vs. : 1) Sonu
S/o Sh. Ram Naresh
R/o Bablu Ka Makan,
Sheela Bua Mandir wali gali,
near Ajay Dharam Kanta, Alipur,
Delhi.
2). Kishan
S/o Sh. Ashki Lal
R/o Kapur ka plot, Santosh
Dharam Kante wali gali,
Alipur, Delhi.
Offence complained of : 302/201/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of committal : 30.10.2017
Date of Judgment : 26.04.2018
JUDGMENT
1. On 10.07.2017 Dhruv made a report that he along with his family and younger brother Manoj is residing in the house S.C. No:646/17 State Vs. Sonu etc. : 1 :
of Dayanand at village Singhu, Delhi. On 05.07.2017 at about 9 pm. Krishan and Sonu both friends of his brother Manoj came to their house and took away Manoj. Thereafter, Manoj did not return. On 10.07.2017 he had seen the poster of a dead person. The description of his brother tallies with the person whose photograph was there on poster and i.e. why he had come to the police station. He identified the dead body of his brother. Thereafter, both accused Manoj and Kishan were apprehended. They pointed out the place of occurrence and confessed the commission of offence. After completion of investigation charge sheet against accused persons was filed.
2. Ld. MM after complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court. Both the accused were charged for the offence punishable u/s 302/34 and 201 r/w 34 IPC. Thereafter, the case was fixed for prosecution evidence.
3. Dr. Mukesh Kumar was examined as PW-1. On 10.07.2017 he conducted the post mortem on the dead body of Manoj. After conducting the post mortem he opined that the cause of death in this case was duty to combined effect of cranio cerberal injury and subsequent browning. Injury to S.C. No:646/17 State Vs. Sonu etc. : 2 :
the head in itself was also sufficient to cause death in ordinary course of nature. All injuries were ante mortem in nature, fresh in duration, could be caused by blunt force impact. Viscera has been preserved to rule out any intoxication at the time of death. The blood on gauze, clothes, viscera along with blood sample were preserved and sealed. The same were handed over to the police along with the sample seal. He also perused the FSL result and thereafter opined that the final cause of death remained the same as mentioned in the post mortem. The post mortem report is proved as Ex.PW1/A.
4. During cross-examination the witness denied the suggestion that external injuries as mentioned in Ex.PW1/A could be sustained from bricks /rough surface or iron handles if a person fall in some drain under intoxication and flows with the flow of drain. He denied the suggestion that he had not properly conducted the post mortem.
5. Ravi Khati was examined as PW-2. He deposed that he is a tenant in the house of Ashok r/o Singhu village. On 10.07.2017 Dhruv made a call on his mobile phone and thereafter, he reached PS: Alipur. He and Dhruv met the police officials and went to the mortuary of BJRM Hospital.
There they identified the dead body of Manoj brother of S.C. No:646/17 State Vs. Sonu etc. : 3 :
Dhruv vide memo Ex.PW2/A. After the post mortem dead body was handed over to them. The testimony of the witness has gone unchallenged and uncontroverted.
6. Dhruv was examined as PW-3. He deposed that he along with his family is residing in the house of Ashok r/o Singhu village Delhi. His younger brother Manoj was also residing with him in Delhi. On 05.07.2017 at about 9:00- 9:15 pm friends of Manoj namely Sonu and Kishan both resident of Alipur called his brother Manoj. He asked his brother Manoj as to who are they and his brother told him that they are his friends. He was also knowing them before that date but had no conversation with them. His brother quickly finished his food and went along with Sonu and Kishan.
Manoj was a drug addict and was not in the habit of returning home some time weeks or 10 to 15 days. Due to that reason he did not pay any attention when his brother did not return home. On 10.07.2017 at about 9 am he left his house for performing duty in the factory. When he reached at Singhu border G.T Karnal Road he saw a poster on the police booth with the photograph of a dead person. The photograph in the poster seem to be of his brother Manoj. On the poster the address was of police station Alipur. He went to police station Alipur and also called Ravi there. They went to the mortuary S.C. No:646/17 State Vs. Sonu etc. : 4 :
of BJRM Hospital where he identified the dead body of his brother vide memo Ex.PW3/A. He also identified Sonu and Kishan. He identified the dead body in the mortuary vide memo Ex.PW3/B. He also proved his statement as Ex.PW3/A. On the same day the police went in search of accused persons. At about 9:15 pm they reached Seed farm road. On his pointing out Sonu and Kishan were apprehended. Accused Sonu was arrested vide arrest memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW3/D. Kishan was arrested vide arrest memo Ex.PW3/E and his personal search was conducted vide memo Ex.PW3/F.
7. During cross-examination he stated that his duty hours were from 9 am to 5:30 pm and some time 6 pm to 2 am. His younger brother Manoj was also residing with him. After the wife of Manoj left for Nepal Manoj was residing alone with them in the tenancy of Ashok. However he was confronted with his previous statement Ex.PW3/A where it was not so recorded. He admitted that Manoj used to indulge in illegal activities and due to that reason he was often taken to Police station. He admitted that he got his brother released many times from the police station. One criminal case was also pending against his brother. He admitted that his brother S.C. No:646/17 State Vs. Sonu etc. : 5 :
used to steal things and also pick up quarrels with neighbours in the locality after consuming drugs. He admitted that he got Manoj admitted in the hospital 1 ½ month prior to his death as his brother informed him that he met with an accident. He denied the suggestion that his brother sustained injuries because of beatings caused in a quarrel between him, Vicky, Toni and Sachin. He did not lodge any missing report after his brother did not return on 05.07.2017. He denied the suggestion that he did not make any effort to search for his brother after 05.07.2017. He admitted that he signed PW-3/C, D, E & F at point A in the police station. He denied the suggestion that accused persons were not known to him or that he had seen them first time in the police station. He denied the suggestion that he has been falsely introduced as a witness.
8. Arvind Kumar was examined as PW-4. He deposed that he is a tea vendor and running a tea stall near Sai Baba Mandir, service road Alipur GT Karnal Road. On 10.07.2017 police in a gypsy came to his tea stall and took him to PS:
Alipur. Police inquired from him if he knew any person by the name of Manoj. He told the police that Manoj used to visit his shop for taking tea. Police had also shown him the photograph of one person and he told that this photograph S.C. No:646/17 State Vs. Sonu etc. : 6 :
is of Manoj. He also told the police that Manoj is not visiting his shop for the last 4-5 days. He also identified Kishan and Sonu who also used to come to his shop for taking tea. He was cross-examined by APP but he denied the suggestion that on 05.07.2017 at about 10:00 pm accused Sonu and Kishan along with Manoj visited his shop or that they quarrelled there or that he requested them not to quarrel on his shop and thereafter they left. He also denied the suggestion that thereafter Manoj @ Nepali has not visited his shop. He was confronted with his statement Ex.PW4/A.
9. During cross-examination by the defence he admitted that both the accused persons were working as labourer and waiter in marriage parties on the farm houses situated at Alipur road. He was kept in the police station for three days by the police officials of PS: Alipur.
10. Dr. Mukesh Bharti was examined as PW-5. He deposed that on 12.07.2017 at 10:42 am Kishan s/o Sh.
Ashki Lal was brought by ASI Lal Singh with ASI Umed. He examined the patient. On local examination one 5 to 6 days old scrabbed wound .5 cm x .5cm superficial was found present over occipital skull. Old scrabbed multiple superficial abrasion 5-6 days old were present over face, over abdomen wall and bilateral knee. He prepared the MLC No.4118 S.C. No:646/17 State Vs. Sonu etc. : 7 :
Ex.PW5/A.
11. During cross-examination he stated that he cannot comment with certainty if the patient was under some threat or duress at the time he was brought for examination. He denied the suggestion that alleged history as mentioned Ex.PW5/A was given on the tutoring or on the instigation of police official accompanying the patient. He denied the suggestion that he did not examine the patient as deposed by him or that he prepared the MLC on the instructions of IO/police officials to suit their case.
12. ASI Sukram Pal was examined as PW-6. He deposed that on 10.07.2017 he was working as duty officer. On that day at about 5:15 pm SI Jaibir presented one rukka for registration of FIR. He got entered the contents of rukka in the computer. He proved the copy of FIR as Ex.PW6/A. He made endorsement on the rukka and proved the same as Ex.PW6/B. He proved the certificate u/s 65B Evidence Act as Ex.PW6/C. The further investigation was assigned to Inspector Ravi Kumar. He handed over the copies of FIR to Ct. Ravinder for handing over the same to the area Magistrate and the senior police officials.
13. During cross-examination he denied the suggestion that FIR is ante dated and ante timed or that he did not S.C. No:646/17 State Vs. Sonu etc. : 8 :
record the FIR as deposed by him.
14. ASI Yogender was examined as PW-7. On 06.07.2017 he was performing his duty on ERV. He was patrolling in the area on that day. At about 1:05 pm one person informed him that one dead body is lying in the drain near Santosh Janak Dharm Kanta, Old GT Karnal road Delhi. They reached the said place and saw one male dead body. The face was downwards. At about 1:15 pm he made a call to the police station and informed about the dead body lying in the drain. After some time SI Jai Bir and other staff reached the spot and thereafter he left.
15. During cross-examination he stated that he did not ask the name and address of the person who informed him about the body. 4-5 person were present at the drain when he reached there. He did not ask the names and addresses of those 4-5 persons. He denied the suggestion that he did not inform the duty officer about the dead body found in the drain.
16. Ravinder Kumar was examined as PW-8. He deposed that he was working as home guard and presently working as guide for truck drivers. On 10.07.2017 SI Jagbir and Inspector Ravi Kumar met him. They had shown him the photograph of a dead person. He identified that person as S.C. No:646/17 State Vs. Sonu etc. : 9 :
Manoj. On inquiry he informed the police that he had seen Manoj at the tea stall of Arvind. He had also told the police that he had seen Manoj with his friend Sonu and Kishan who used to take tea at the tea stall. He also told that Manoj is a drug addict and usually seen in the company of Sonu and Kishan at the tea stall of Arvind. He went with the police officials and pointed out the tea stall of Arvind. Witness also identified Sonu and Kishan. He also identified the photograph of Manoj as Ex.PW8/A.
17. During cross-examination he stated that his statement was recorded only once. He denied the suggestion that Inspector Ravi Kumar was known to him prior to this case as he used to work as home guard. He denied the suggestion that he had not seen the accused in the company of accused persons at the tea stall of Arvind. He denied the suggestion that he was introduced as witness lateron to strengthen the case and to fill up the gaps. He denied the suggestion that he had not shown the tea stall of Arvind to the police.
18. SI Satya Dev was examined as PW-9. On 06.07.2017 he was posted as Incharge mobile crime team. On that day after receiving information he along with Ct. Mahesh photographer, ASI Sukhbir finger print proficient, HC Raj Kumar finger print proficient reached near Santosh Janak S.C. No:646/17 State Vs. Sonu etc. : 10 :
Dharam Kanta, Old GT Karnal Road, near the drain. SI Jagbir along with staff met them there. It was told that dead body is lying in the drain. The body was taken out and was found in decomposed condition. There was an abandoned godown near that place. There were marks of dragging on the floor of the godown. Inside the room in said godown there were some burnt papers and blood stains. Ct. Mahesh took the photographs and he prepared the report Ex.PW9/A. In reply to a leading question put by the witness he stated that SI Jaibir met him on the spot and not SI Jagbir.
19. During cross-examination by the defence he denied the suggestion that he did not visit the spot or that he prepared the report while sitting in the office at the instance of IO to suit the case.
20. Mahesh Kumar was examined as PW-10. On 06.07.2017 he was posted as photographer with the mobile crime team. He visited the scene of crime along with the crime team headed by SI Satya Dev. He took 20 photographs of scene of crime and of the dead body from different angles. He proved the photographs as Ex.PW20/A1 to A20 and the negatives as Ex.PW10/B1 to B20. A leading question was put to him by Ld. APP wherein he admitted that SI Jaibir who met them on the spot and not SI Jagbir.
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21. During cross-examination he stated that he did not tell the IO that he clicked 20 photographs. He denied the suggestion that he did not visit the spot or did not click the photographs as deposed by him.
22. HC Ramesh was examined as PW-11. He deposed that on 09.08.2017 he collected six sealed parcels and three sample seals from MHC(M) vide RC NO.147 & 148/21/17. He deposited the same in FSL and obtained the acknowledgement. He returned to the police station and handed over the acknowledgement to the MHC(M). No body tampered with the case property till the same remained in his possession. He was cross-examined by APP wherein he stated that he also took one sealed wooden box containing viscera to FSL vide RC No:147/21/17.
23. During cross-examination he stated that he cannot tell the name and designation of the official with whom he deposited the exhibits at FSL.
24. Ct. Sandeep was examined as PW-12. He deposed that on 11.06.2017 he joined the investigation with Inspector Ravi Kumar, Ct. Amit and ASI Raj Kumar. At about 9:30 am accused Sonu and Kishan were taken out from the lockup. They went to Santosh Janak Dharam kanta in private vehicle at the instance of accused. The vehicle was stopped. Sonu S.C. No:646/17 State Vs. Sonu etc. : 12 :
got down from the vehicle and pointed out one vacant plot where there was an iron gate. He pointed out the third room where he along with co-accused killed Manoj and thrown the dead body in the ganda nala. IO prepared the pointing out memo Ex.PW12/A. Thereafter, the custody of accused Sonu was handed over to Ct. Amit. Thereafter, accused Kishan led them to that place and pointed out where they have killed Manoj and thrown the dead body in the drain vide pointing out memo Ex.PW12/B. He identified both the accused persons.
25. During cross-examination by the defence he stated that he cannot say if any DD entry was recorded when they left the police station. No one from Santosh Janak Dharam Kanta or from any other nearby establishment was called to join the investigation. No site plan of the spot pointed out by the accused persons was prepared. He denied the suggestion that the accused persons were not taken to the spot or that memos were prepared while sitting in the police station. He denied the suggestion that he signed the memo subsequently at the instance of IO.
26. HC Rajbir was examined as PW-13. He deposed that on 06.07.2017 he along with SI Jaibir and Ct. Manoj reached near Santosh Janak Dharam Kanta old GT Karnal road Alipur S.C. No:646/17 State Vs. Sonu etc. : 13 :
on receipt of DD No.24A regarding dead body. ASI Yogender and ERV staff met them on the spot. One deadbody of a male was lying facing downwards in the drain. Towards western side of the drain there was one dilapidated structure with an iron gate. There were three room without roof in that plot. In the third room there were blood stains and dragging marks. There were two bricks having blood stains and blood was also found on the wall. Crime team was called on the spot. Photographs were taken, crime team inspected the scene of crime. Dead body was taken out of the drain, but dead body could not be identified. Body was removed to the mortuary through Ct. Manish. From the third room two blood stained bricks of red colour were lifted, put in plastic container sealed with the seal of JR and seized vide memo Ex.PW13/A. From the said plot near the main gate blood stained concrete was taken, put in a plastic container sealed with seal of JR and seized vide memo Ex.PW13/B. The witness identified those two bricks as Ex.PW13/Article-1 and blood stained concrete lifted from there as Ex.PW13/Article2.
27. During cross-examination he stated that area of Santosh Janak Dharam Kanta does not fall within his week but it is in adjoining beat. They reached the spot at about 1:25 pm Public persons along with the ERV staff were S.C. No:646/17 State Vs. Sonu etc. : 14 :
present on the spot. IO made inquires from the public persons found on the spot. He does not know if IO reduced into writing the contents of inquiries made by him. He does not know if any staff /owner was called from Santosh Janak Dharam Kanta by the IO. SI Jaibir checked the CCTV Camera found installed near and on the way to the spot. He did not remember if SI Jaibir seized the CCTV footage. He admitted that the night patrolling staff of their police station checks that dilapidated structure and the area around it 2-3 times during the course of night patrolling. No chance prints were lifted by the crime team from the iron gate. He does not remember if the crime team officials lifted any hand prints or foot prints from the spot. He had not noticed any blood stained foot prints or hand prints on the spot. IO might have recorded the names and addresses of the persons from whom he made inquires.
28. Dr. Niranjan Baliar Singh from FSL was examined as PW-14. He conducted analysis on the viscera and on chemical, microscopic, TLC and GC-MS Examination, metallic poison, ethyle and methyle alcohol, cynide, phosphide, alkeloids, barbiturates, tranquilizers and pesticides could not be detected. He proved his report as Ex.PW14/A. S.C. No:646/17 State Vs. Sonu etc. : 15 :
29. Ct. Naveen was examined as PW-15. He proved the scaled site plan of the scene of crime as Ex.PW15/A. Nothing material came in the cross-examination of this witness to discredit him.
30. Ct. Manish was examined as PW-16. He corroborated the testimony of PW-13. He removed the dead body to the mortuary of BJRM hospital. He also deposed that on 10.07.2017 SI Jaibir reached the mortuary where the dead body was identified by the relatives. SI Jaibir prepared the inquest papers. Thereafter, the post mortem was conducted on the body. After the post mortem doctor handed over three duly sealed parcels and two sample seals to SI Jaibir who seized the same vide memo Ex.PW16/A. The dead body was handed over to Dhruv Kumar after post mortem.
31. He along with Inspector Ravi Kumar and SI Jaibir reached near Santosh Janak Dharam Kanta. One Ravinder S/o Mangat Ram met them at the spot. SI Jaibir had shown the photograph of deceased Manoj who identified the photograph. Ravinder also informed that Sonu, Kishan and the deceased used to take tea at the tea stall of Arvind. Ravinder pointed out the tea stall of Arvind. IO Inspector Ravi Kumar made inquires from Arvind and recorded statement of Arvind.
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32. Dhruv Kumar accompanied them in search of accused persons and he corroborated the testimony of PW-3 regarding the arrest of the accused persons. He also deposed that the clothes worn by accused Sonu I.e Orange colour T-shirt and blue colour jeans were having blood stains and was taken from him. The clothes were wrapped in a cloth piece, sealed with the seal of RK and seized. Similarly, clothes of accused Kishan i.e. shirt of green and blue colour check deisgn and black colour lower were taken in possession as there were blood stains on the same. The clothes were wrapped in white cloth and sealed with the seal of RK. He identified the two bricks as PW13/Article 1, the concrete taken from there as Ex.PW13/Article2.
33. During cross-examination he stated that his statement was recorded once on 06.07.2017. At the first time when he visited the spot, he remained there for about 2 - 2 ½ hours. He does not remember if SI Jaibir called for the dog squad. He does not know if the crime team lifted the chance prints from the iron gate or from any other spot. Except the application for preserving the dead body he had not taken any other document when he shifted the dead body to the mortuary of BJRM Hospital.
34. He did not make any DD entry on 10.07.2017 when he S.C. No:646/17 State Vs. Sonu etc. : 17 :
joined the investigation with SI Jaibir and IO. He denied the suggestion that it was rainy day on 05/06 of July 2017 or there was heavy flow of water in the said drain. He denied the suggestion that there were iron rods inside the drain and around the edges and the edges were sharp. He denied the suggestion that body retrieved was in such a condition that it cannot be identified.
35. He does not know if Ravinder used to visit police station regularly as earlier he was home guard. He does not know if there were criminal cases against Manoj in PS:
Alipur. Only the arrest papers were prepared on the spot where accused were apprehended. Other documents were prepared in the police station. He denied the suggestion that all the memos and documents were prepared in the police station. He admitted that he had not mentioned the description and colour of the clothes in his statement. He does not know to whom the seal after use was handed over. Other clothes were provided to the accused brought by their fathers who were called to the police station. He does not remember if IO prepared any body inspection memo of the accused persons. He denied the suggestion that clothes of accused persons were not taken in possession or that clothes were planted upon the accused persons. He denied S.C. No:646/17 State Vs. Sonu etc. : 18 :
the suggestion that accused persons have been falsely implicated.
36. SI Jai Bir was examined as PW-17. He deposed that on 06.07.2017 on receipt of DD No.24A Ex.PW17/A he along with Ct. Manish and HC Rajbir reached near Santosh Janak Dharam Kanta. He corroborated the testimony of PW-13 as well as of PW-16. He sent the dead body to BJRM Hospital through Ct. Manish. The photograph of dead body were pasted on the poster and circulated in the adjouining area and locality to establish the identity of the deceaed. The wireless messages were also sent. The photograph was uploaded on the zipnet. Hue and cry notices were also circulated.
37. On 10.07.2017 one person by the name of Dhruv along with his friend Ravi came to the police station. They identified the dead body. He recorded the statement of Dhruv and got the FIR registered. He prepared the inquest papers i.e. the form 25.35 as Ex.PW17/B. He prepared the brief facts Ex.PW17/C and moved application for post mortem Ex.PW17/D. After the post mortem the doctor handed over sealed parcels and two sample seals which he seized vide memo Ex.PW16/A. The dead body was handed over to the relatives after post mortem. He proved his endorsement on S.C. No:646/17 State Vs. Sonu etc. : 19 :
the statement of Dhruv as Ex.PW17/E. He along with IO Inspector Ravi Kumar and Ct. Manish went to the spot where IO prepared the site plan Ex.PW17/F at his instance. He also corroborated the testimony of PW-3 and PW-16 regarding the arrest of the accused persons. He proved the disclosure statement of Sonu as Ex.PW17/G and as of Kishan as Ex.PW17/H. He proved the seizure memo of clothes of Sonu as Ex.PW17/I and of Kishan as Ex.PW17/J. He took Ct. Naveen to the spot on 28.07.2017 where Ct. Naveen took the measurement and prepared rough notes at his instance for preparing the site plan. He identified the case property. He identified the clothes of Sonu as Ex.PW17/Article-1 and of Kishan as Ex.PW17/Article2.
38. During cross-examination he deposed that he did not call any dog squad on the spot. He throughly checked the area between the dilapidated structure and the drain. The crime team had also throughly checked the area. There were drag marks but the same have not been shown in the site plan prepared by the IO as well as in the scaled site plan prepared at his instance. He did not make any inquiry as to who is the owner / caretaker of the dilapidated structure. He made inquiries but could not find out as to who is the owner/caretaker of the dilapidated structure. He admitted that S.C. No:646/17 State Vs. Sonu etc. : 20 :
dilapidated structure is easily accessible to all and is an open area. He does not remember if CCTV cameras were found installed at Santosh Janak Dharam Kanta. He contacted the care taker of Sai Baba Temple. Incharge of KRBL rice godown and some other places for the CCTV camera and the footage. He checked the CCTV footage but nothing relevant was found. He did not notice any remnants of any contrabands or drug inside or outside dilapidated structure. He had not made any inquiry from any public person as to whether they had seen the deceased visiting the said place or frequenting that place earlier also. He denied the suggestion that there was heavy flow of water in the drain due to rainy season. He denied the suggestion that iron rods and the bricks edges are coming out from the side walls of the drain. He does not remember if the crime team lifted any chance prints. Seal after use was handed over to HC Rajbir who returned the seal to him after 10-12 days. No DD was recorded in this regard.
39. He made inquiries from Dhruv regarding the fact as to why he did not lodge any missing report of his brother. He did not inquire from Dhruv whether his brother was using any mobile phone. He visited the spot several times between 06.07.2017 to 10.07.2017 to establish the identity of the S.C. No:646/17 State Vs. Sonu etc. : 21 :
deceased.
40. He denied the suggestion that he was aware that Ravinder was previously working as home guard or that he used to visit PS: Alipur frequently. No public person collected at the time of apprehension of accused persons. He denied the suggestion that all the memos and documents were prepared subsequently in the police station or that he signed those documents subsequently at the instance of IO. He denied the suggestion that accused persons did not make any disclosure statement or that their signatures were obtained on the blank papers which were lateron converted into various incriminating evidence. He denied the suggestion that clothes of accused were not seized as deposed by him or that the clothes have been falsely planted upon the accused persons.
41. Inspector Ravi Kumar IO of the case was examined as PW-18. He deposed that on 10.07.2017 he received copy of FIR and original rukka. He also received the inquest documents and the seizure memos from SI Jaibir. He along with SI Jaibir and Ct. Manish went to the spot near Santosh Janak Dharam Kanta and prepared the site plan Ex.PW17/F. He met Ravinder and recorded his statement who pointed out the shop of Arvind. He recorded the statement of Arvind.
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He corroborated the testimony of PW-3, PW-16 and PW-17.
He also recorded the statement of Kishan which is Ex.PW18/A in the presence of DLSA counsel. After completion of investigation he filed the charge sheet. He correctly identified both the accused persons and also the case property.
42. During cross-examination he admitted that he was aware that a dead body has been found near Santosh Janak Dharam Kanta. He took up the investigation on 10.07.2017 at about 6 pm. SI Jaibir briefed him about the facts of the case on 10.07.2017. He did not make any inquiry from the persons operating Santosh Janak Dharam Kanta. He did not seize any CCTV footage of any CCTV camera in the area. He was told by SI Jaibir that he had scanned the CCTV footage but nothing has been found. He did not make any DD entry that Dhruv had joined the investigation. He admitted that place of incident is easily accessible to all. He did not prepare any body inspection memo of accused persons. He denied the suggestion that case property has been planted upon the accused persons or that they have been falsely implicated.
43. Thereafter, the prosecution evidence was closed.
44. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence. They did not S.C. No:646/17 State Vs. Sonu etc. : 23 :
wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
45. I have heard the Ld. APP for the State, Ld. Amicus for the accused persons and perused the record.
46. In the present case there is no eye witness. The case is based upon circumstantial evidence. The prosecution intend to establish the guilt of the accused persons by proving the following circumstances.
1) Circumstance of last seen.
2) Circumstance of recovery of clothes of the accused persons.
3) Circumstance of pointing out of the place of occurrence.
I take up the circumstances one by one.
Circumstance of last seen.
47. The case of the prosecution is that deceased was lastly seen in the company of accused persons on 05.07.17 and on 06.07.17 in the morning the dead body was found lying in the drain near Santosh Janak Dharamkanta. Prosecution had examined two witnesses to establish the circumstance of last seen i.e. Dhruv/PW-3, who is the brother of the deceased and Arvind kumar/PW-4. Dhruv Kumar deposed that on 05.07.17 at about 9/9.15 PM both the accused came to his house and called Manoj. He also S.C. No:646/17 State Vs. Sonu etc. : 24 :
identified both the accused persons. His brother Manoj left with both the accused and thereafter did not return. From this testimony of PW-3 it is clear that deceased left from his house with these two accused persons at about 9/9.15 PM. Though, there are many contradictions in his statement as he did not make any complaint to the police when his brother did not return on the same night or even thereafter. He made the complaint only on 10.07.17 that also after seeing the poster having photograph of the deceased which he identified to be of his brother Manoj. He stated that as his brother used to remain absent from house continuously for many days, therefore, he did not make any complaint when his brother did not return. In the complaint he also did not mention as to what clothes his brother was wearing when he left with the accused persons. All these facts make his statement shaky and not reliable.
48. There is another witness Arvind Kumar examined as PW-4. According to the prosecution story Manoj (deceased) along with both the accused Sonu and Kishan visited the shop of Arvind i.e. the tea stall situated near Sai Baba Mandir service road, Alipur, GT Karnal Road on 05.07.17 at about 10 PM and also quarreled with each other. Meaning thereby lastly it was Arvind, who had seen the deceased with the S.C. No:646/17 State Vs. Sonu etc. : 25 :
accused persons. Arvind when appeared in the witness box, did not support the prosecution case. He admitted that Manoj used to visit his shop. Both the accused Sonu and Kishan also used to visit his shop, but he did not depose that on 05.07.17 Manoj along with both the accused visited his tea stall at about 10 PM or that they had quarreled with each other. The witness was cross examined by Ld. APP but he did not support the prosecution case. He was also confronted with his statement Ex.PW-4/A but of no avail. Keeping in view the testimony of PW-4, I found that even if PW-2 is believed the circumstance of last seen is not established as PW-2 had seen them at about 9 PM but Arvind examined as PW-4 who allegedly had seen them together at 10 PM on the same day did not support the prosecution case and therefore, in my opinion the circumstance of last seen is not established.
Circumstance of recovery of clothes of accused persons.
49. The prosecution alleges that when the accused persons were apprehended on the pointing out of PW-2, they were found wearing the clothes which they were wearing at the time of incident. Prosecution has examined SI Jaibir as PW-17 and Inspector Ravi Kumar as PW-18 for proving the S.C. No:646/17 State Vs. Sonu etc. : 26 :
recovery of clothes. Both of them had fully supported the prosecution case and corroborated each other. Both the witnesses stated that Sonu was found wearing orange colour t-shirt and blue colour jeans Ex.PW-17/Article 1. There were blood stains on the clothes. The clothes were taken from the accused, put in a cloth parcel, sealed with the seal of RK and seized vide memo Ex.PW-17/I. Accused Kishan was found wearing a shirt having check design of green and blue colour and a black colour lower. The clothes of Kishan were also put in a cloth parcel, sealed with the seal of RK and seized vide memo Ex.PW-17/J. The clothes of Kishan had been identified by both the witnesses as Ex.PW-17/Article 2. The investigating agency sent these clothes to FSL for analysis. The FSL report no.FSL-2017/B-5897 dt.12.12.17 is available on record. The blood was found on the clothes and DNA was isolated from the blood stains found on their clothes but it was dis imilar with the DNA of the deceased. According to the report, male DNA profile generated from the source of Ex.5 a (t-shirt of accused Sonu) was found to be dissimilar with the DNA profile generated from the source of Ex.3 (blood gauze of deceased). The report further provides that the male DNA profile generated from the source of exhibits 6a, 6b (clothes of accused Kishan) was found to be dissimilar S.C. No:646/17 State Vs. Sonu etc. : 27 :
with the DNA profile generated from the source of Ex.3 (blood gauze of deceased). Keeping in view this report, it is clear the blood was found on the clothes of the accused persons but the blood found was not of the deceased and hence does not link the clothes with the commission of the offence and consequently the accused persons. For the sake of arguments, even if the recovery of the clothes is taken to be established that does not point towards the guilt of the accused and does not link them with the commission of offence. Therefore, in my opinion, the onus which was on the prosecution has not been discharged. The circumstance is not established and proved.
Circumstance of pointing out of the place of occurrence.
50. Prosecution alleges that both accused persons pointed out the place of occurrence i.e. the dilapidated building where they murdered Manoj by hitting him with the bricks. The two police witnesses are examined to prove this fact i.e. PW-12 and PW-18. Both the witnesses have stood through the test of cross examination. No public witness was joined at the time of pointing out. This non joining of public witnesses though the public witnesses were available itself creates doubt. In fact no effort was made to join any witness. None was called from Santosh Janak Dharam Kanta to join S.C. No:646/17 State Vs. Sonu etc. : 28 :
the investigation. Even otherwise that place was already known to the police as they seized the exhibits from that place on 06.07.17 and also took the photographs. Therefore, this pointing out pursuance to the disclosure statement does not lead to the discovery of new fact and therefore is not admissible. Keeping in view all these facts, in my opinion, this circumstance does not point towards the guilt of the accused.
51. The prosecution also alleges that the accused persons destroyed the evidence to conceal themselves from the punishment but no such evidence has been brought on record. The only disclosure statement is there of the accused persons that they have washed their clothes as there were blood stains on their clothes. As discussed above, the clothes were analyzed in FSL and blood was detected on those clothes. The report shows that the blood detected was not of the deceased. In view of the above, in my opinion there was no destruction of evidence by the accused persons by washing the clothes. There is no other evidence on record that they have destroyed any other evidence in order to save themselves.
52. There is no other evidence or circumstance against the accused persons. In view of the above discussions, in my S.C. No:646/17 State Vs. Sonu etc. : 29 :
opinion, the prosecution has failed to prove and establish the circumstances against the accused persons. The chain is not complete. The circumstance established i.e. the pointing out does not point towards the guilt of the accused. Therefore, both the accused are acquitted. They be released on bail on furnishing personal bond of Rs.20,000/- with one surety in the like amount for a period of six months under Sec.437 A Cr.PC. File be consigned to Record Room.
Digitally signed by
VIRENDER VIRENDER KUMAR
KUMAR BANSAL
Date: 2018.04.26
BANSAL 16:21:56 +0530
Announced in the open court (VIRENDER KUMAR BANSAL)
today on 26.04.2018 ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
S.C. No:646/17 State Vs. Sonu etc. : 30 :