Delhi District Court
State vs . : Neeraj Rathore on 21 August, 2018
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE05, SOUTH WEST DISTRICT
DWARKA COURTS, NEW DELHI
Sessions Case
CNR No. DLSW010002122012
Registration no. 440992/2016
State Vs. : Neeraj Rathore
S/o Ramesh Rathore,
R/o A157, J.J. Colony,
Sector07, Dwarka,
New Delhi.
FIR No. : 74/2012
Police Station : Dwarka South
Under Section : 302/201/506 IPC
Date of Institution : 24.07.2012
Date when arguments
were heard : 04.08.2018
Date of Judgment : 21.08.2018
JUDGMENT
1. Adumbrated in brief the case of prosecution is that on 21.04.2012 in between 9.00 P.M. of that day to 7.30 A.M. of 22.04.2012 at DDA vacant land, adjacent to Media Apartment, Sector07, Dwarka, New Delhi, accused Neeraj Rathore committed CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 1 of 32 the murder of Raghubir @ Rahis and after murdering him (Raghubir @ Rahis) intentionally crushed the face of deceased with stone so that deceased may not be identified causing disappearance of evidence of offence of murder and accused after informing, Sahil Kumar S/o Naresh Kumar Kanojia, about the murder of Raghubir @ Rahis threatened Sahil Kumar to kill him in case he (Sahil Kumar) informed anybody about the murder of Raghubir @ Rahis.
2. On completion of investigation, charge sheet for offences under Sections 302/201/506 IPC was filed.
3. After completion of requirements of Section 207 Cr.P.C., matter was committed to the court of Sessions.
4. Charge for offences punishable under sections 302/201/506 IPC was framed against accused Neeraj Rathore by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
5. To connect the accused with the offences charged, prosecution has examined 19 witnesses.
6. Thereafter, accused was examined under section 313 CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 2 of 32 Cr.P.C. All incriminating material in evidence and on record was put to the accused. Accused submitted of innocence and false implication. Accused denied to lead defence evidence.
7. I have heard the arguments of Ld. Addl. P.P. for the State and the Ld. Defence counsel; have perused the record including the documents and evidence and have given my thoughtful consideration to the rival contentions put forth.
8. Ld. Addl. P.P. for the State argued that from the evidence led, the prosecution has been successful in bringing home the guilt of the accused beyond reasonable doubt and has prayed for conviction of the accused for the charge framed against him.
9. The Ld. Defence counsel prayed for acquittal of the accused submitting false implication of accused.
10. PW15 WHC Vinod Kumari, computer operator at CPCR on channel no. 106 received a call from mobile number 9990322146 on 22.04.2012 with the information "kisi old age bande ki dead body padi hai". The same was recorded in CPCR form Ex. PW15/A at 7.13 AM. Certificate under section 65 B of Indian CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 3 of 32 Evidence Act Ex. PW15/B was also placed on record. PW13 Sanjay testified that mobile number 9990322146 was in his name but was used by his driver Gopal. The said Gopal was neither cited nor examined as prosecution witness. On 22.04.2012, at 7.30 A.M. PW9 SI Birender Singh received copy of DD no. 9A Ex. PW9/A and with SI Vikas he reached at CBlock, J J Colony, Sector7 in front of Media Apartments at DDA Land, where public was gathered and dead body of a male person and one big stone was found on his face and blood had oozed out from dead body. PW9 and SI Vikas called the Crime Team. PW10 Retired ASI Attar Singh, Incharge of Crime Team, PW11 ASI Kulbhushan and PW12 HC Suresh, photographer of Crime Team reached at the aforesaid spot. PW10 and PW11 testified that on the face of dead body there was big stone, many injury marks were there on said face and besides it some marble debris was lying and an empty quarter bottle of liquor was lying and they noticed blood at the spot. On instructions of Incharge Crime Team, photographer PW12 HC (then Constable) Suresh took photographs Ex. PW12/A1 to Ex. PW12/A16 {also Ex. P1, Ex. PW2 CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 4 of 32 and Ex. PW3 (colly)} of the spot from different angles whose strip of negatives is Ex. PW12/B (colly). PW11 lifted chance print from the empty quarter bottle and from the spot and gave report Ex. PW11/A. PW10 gave Crime Team report Ex. PW10/A. PW9 made endorsement Ex. PW9/B on Ex. PW9/A and handed it over to SI Vikas for registration of the FIR. As per PW9, Senior Officers came to spot and SI Vikas also came to the spot and handed over copy of FIR and rukka to PW19 IO Inspector Yogesh Kumar, who then took up further investigation. Duty Officer PW2 WSI Suman proved FIR of the case in hand as Ex.PW2/B and the endorsement on rukka Ex. PW2/A. On 22.04.2012 at about 7.30 AM on receipt of information of dead body at C Block, J J Colony, Sector7, Dwarka near vacant land PW7 Ganga Narain had gone there where public had gathered and he noticed dead body belonging to his son Raghubir @ Rais. As per PW7, his son Raghubir @ Rais had left the house on 21.04.2012 at about 8.308.45 P.M. had given some amount to his mother to prepare food and thereafter he had not returned. PW7 identified the body of his son Raghubir @ Rais after seeing it at the spot. IO CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 5 of 32 PW19 lifted sharp marble stone Ex. P3; blood stained broken brick Ex. P4; red rectangular blood stained slab Ex. P5; blood stained cement colour stone slab Ex. P6, sealed them in parcel(s) and sealed them with the seal of YK vide memo Ex. PW9/C. Also IO PW19 seized the hair of deceased which was blood stained and kept in a plastic box sealed with the seal of YK and seized vide seizure memo Ex. PW9/D. IO PW19 also collected the blood stained soil in plastic box, kept in a parcel and sealed with the seal of YK and seized it vide memo Ex. PW9/E. IO PW19 also collected the earth control, kept the same in plastic box and sealed it with the seal of YK and seized vide memo Ex. PW9/F. IO PW19 also took blood sample from below the head of the body from the spot, kept in plastic box and sealed with the seal of YK and seized it vide memo Ex. PW9/G. One empty quarter bottle of liquor, a packet of bidi, match box collectively Ex. P7 were also picked up by IO PW19 from the spot, kept in parcel and sealed with the seal of YK and seized vide memo Ex. PW19/H.
11. On 23.04.2012 IO PW19 with PW9 went to DDU CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 6 of 32 mortuary, moved request Ex. PW19/B with brief facts Ex. PW19/C, Form 25.35 (1) (B) Ex. PW19/D for getting postmortem conducted.
12. Autopsy Surgeon Doctor B N Mishra PW8, Medical Officer cum Medico Legal Expert, Department of Forensic Medicine, DDU Hospital conducted the autopsy on the dead body of Raghubir @ Rais on 23.04.2012, which was identified by Ganga Narayan PW7, father of deceased.
13. As per postmortem report Ex. PW8/A, PW8 had observed following injuries on external examination of body of deceased Raghubir @ Rais:
EXTERNAL INJURIES (1) The head and face crushed site to site which caused distorted and disfigured face and head with fractured mandible maxilla, nasal bone, left temporal and parietal bone with fractured frontal bone of skull;
(2) multiple abraded bruise of different sizes scatteredly present over whole part of left side of face, head, nose, mouth, ear and upper part of neck with reddish brown in colour;CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 7 of 32
(3) multiple lacerated wounds of size variable from 2cm x 3cm x bone deep to 3cm x 5cm x bone deep present on the left side of head, cheek, chine and ear lobule with abraded and bruised margin and smeared by blood and dust; and (4) multiple abrasions and bruises present on the right side of head, face and ear alongwith other accessible parts of the body INTERNAL INJURIES observed were :
(A) Head AScalp: Sub Scalp contusions and lacerations present on the left temporoparietal and frontal part of head with massive blood collection;
(B) Skull: Fractured frontal, left temporoparietal, maxilla, nasal bone and mandible;
(C) Brain, Meninges & Vessels: Brain matter crushed site to site with multiple lacerations on both side of cerebrum with massive blood collection into the all three spaces of brain covering upper, basal and bilateral aspect of brain with multiple haemorrhage contusions;
(D) Base of skull: Middle cranial fossa fractured; ECK Hyoid CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 8 of 32 bone/Thyroid Cartilage/Cricoid Cartilage/Tracheal Rings & Mucosa/Any Foreign Body in Trachea: All cartilages of neck and hyoid bone are intact. Tracheal mucosa congested and covered by bloody mucus."
14. PW8 Doctor opined that the cause of death of deceased Raghubir @ Rais was cranio cerebral injury caused by crushed head by striking heavy object upon head like stone etc. PW8 opined the head injury was sufficient to cause death in ordinary course of nature and time since death was approximately 1 ½ days prior to postmortem examination which started at 2.15 PM on 23.04.2012, whereas manner of death was homicide.
15. Pursuant to postmortem, the light grey full shirt, light green lining full pant with black leather belt, light orange underwear viz. clothes of deceased, viscera of deceased, envelope, three sample seal in sealed parcel with the seal of DDU Hospital were given by Autopsy Surgeon PW8 to IO PW19 which were seized vide memo Ex. PW9/J.
16. At DDU Mortuary, the body of deceased Raghubir @ CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 9 of 32 Rais after postmortem was handed over to father PW7 Ganga Narain in presence of PW6 Onkar who also identified and received the body of deceased vide memo Ex. PW6/A.
17. PW14 Ct. Raj Kumar had accompanied PW9 and PW19 to spot on 22.04.2012 and had taken the body of deceased to mortuary DDU Hospital for postmortem.
18. After examining stone slabs Ex. P5 and P6, Autopsy Surgeon Doctor PW8 opined that these stone slabs could have been used for infliction of injuries no. 1 to 4 mentioned in the postmortem report Ex. PW8/A, as nature of injuries were consistent with produced stone slabs viz., weapons of offence.
19. The prosecution case is based on circumstantial evidence. The recovery of the dead body of the deceased on the morning of 22.04.2012 had put the criminal law into motion. At the scene of crime, there was no eye witness of the crime. The investigating agency had difficult task ahead to trace the culprit. In such case of murder, it is difficult to get the clinching evidence, therefore, the circumstantial evidence is used to nab the culprit. The CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 10 of 32 crime committed can be proved by direct evidence as well as by indirect or circumstantial evidence. However, the court needs to be cautious while appreciating the circumstantial evidence. When a case squarely rests upon the circumstantial evidence, the inference of guilt can be justified when all the incriminating circumstances are found to be incompatible with the innocence of accused. There are catena of judgments of the Apex Court giving the guidelines how the circumstantial evidence is appreciated and what should be the standard of circumstantial evidence when it is used against an accused.
20. In AIR 1952 S.C. 343, "Hanuman Govind Nargundkar vs. State of M.P.," it was held that ''In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 11 of 32 such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
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 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 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.''
21. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These 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 with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 12 of 32 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."
22. 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 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.
23. In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 13 of 32 SCC 86], 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.
24. In the light of the legal position, the evidence on record is to be appreciated. In the present case, the prosecution has relied upon the circumstantial evidence.
LAST SEEN EVIDENCE
25. First of all, prosecution relied upon last seen evidence of PW5 Dinesh Bind. Before proceeding to appreciate the statement of PW5, it would be appropriate to know what the Hon'ble Supreme Court has to say about "last seen evidence".
26. In the case of "State of U. P. vs. Satish, "AIR 2005 SUPREME COURT 1000, it has been observed as under:
"The last seen theory comes into play where the time gap CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 14 of 32 between the point of time when accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
27. In case of Ramreddy RajeshKhanna Reddy Vs. State of A.P. 2006(10) SCC 172, it has been observed as under:
"The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such cases, the court should look for some corroboration."
28. The law is very well settled that the last seen evidence is vital evidence when the case of the prosecution is based on circumstantial evidence. The court has to be circumspect and look for some corroboration.
29. Coming to the facts of the present case, when PW5 entered the witness box, he did not support the case of prosecution in CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 15 of 32 any manner whatsoever despite cross examination by Ld. Addl. P.P. for the State. As per PW5, he along with Rajesh were consuming liquor near Kudedaan and after consuming liquor they went towards the park and somebody had called said Rajesh, who went along with that person but PW5 had not noticed with whom the said Rajesh had gone but PW5 returned to his home. As per PW5, police neither came to him nor made any inquiry. In cross examination of Ld. Addl. P.P. for the State, PW5 admitted that deceased Raghubir @ Rais used to do white wash and PW5 with deceased consumed liquor near Kudedaan C Block. PW5 knew the accused who was residing in their locality. PW5 categorically denied that accused had called deceased and/or deceased went with accused. PW 5 even denied of accused having been brought before him on 26.04.2012 or he had then identified accused stating accused had taken the deceased.
30. As per presented case of prosecution, on 25.04.2012 during investigation, IO PW19 inquired many persons and then PW4 Sahil Kumar Kanojiya revealed that accused Neeraj Rathore had discussed with him on the same day after the commission of offence. CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 16 of 32 As per PW19 IO, the accused had given extra judicial confession to PW4 Sahil Kumar Kanojiya on the night of incident itself which was revealed by PW4 to IO PW19 during inquiries conducted on 25.04.2012. On 25.04.2012, the hideouts of accused were raided at the instance of PW4 Sahil Kumar Kanojiya but no clue was found. In the evening on 25.04.2012, when PW19 and PW4 were returning to police station, after raiding various places, PW4 pointed towards accused standing near Peer Baba and accused was apprehended. Accused was arrested vide memo Ex. PW19/G in presence of PW18 Ct. Roshan, personal search of the accused was conducted vide memo Ex. PW19/H. As per PW19, accused gave disclosure statement Ex. PW17/A in presence of PW17 Ct. Somveer in the police station. Also as per PW19, accused Neeraj Rathore got recovered his blood stained clothes worn at the time of incident viz blood stained T Shirt Ex. P8, blood stained Capri (half payjama) Ex. P9 from bathroom of his house which were sealed in parcel, sealed with the seal of YK and seized vide memo Ex. PW18/A. PW19 testified that accused pointed out three places viz. wall of DDA park CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 17 of 32 where he consumed liquor with deceased whose pointing out memo is Ex. PW19/I; the place where accused had smashed the face of deceased after pushing him and falling down of the deceased whose pointing out memo is Ex. PW19/J and the place from where the accused got recovered his blood stained clothes whose pointing out memo is Ex. PW19/K.
31. Accused was produced on 26.04.2012 before Magisterial Court and one day police custody remand was obtained. During police custody remand blood sample of the accused was taken at DDU Hospital, sealed with the seal of DDU and seized by IO vide memo Ex. PW19/L.
32. On 24.05.2012, PW1 Ct. Hardeep Singh was called by IO PW19 and they reached at DDA Vacant Land, Sector7, Dwarka, where PW1 took rough notes and measurements of scene of crime at the instance of IO for preparation of scaled site plan. PW1 prepared scaled site plan Ex. PW1/A and destroyed the rough notes and measurements thereafter.
33. PW3 SI Prem Yadav had taken accused to DDU CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 18 of 32 Hospital on 27.04.2012 and had received sealed pullanda of blood sample of accused and MLC, which he gave to IO PW19.
34. PW16 Ct. Satpal had collected the exhibits and viscera of deceased along with other documents on 20.06.2012 from MHC(M) from police station and deposited them in FSL.
35. IO PW 19 got recorded statement of PW 4 Sahil Kumar Kanojiya in Magisterial Court under section 164 Cr.P.C. whose proceedings are Ex. PW19/X (colly) (genuineness of the proceedings was not disputed by defence counsel).
36. During investigation, IO PW9 moved application Ex.
PW19/M to Principal, Government Boys Senior Secondary School to verify the date of birth of accused. IO PW19 obtained certificate Ex. PW19/N from the Principal of the School finding mention date of birth 12.08.1991 of accused. IO PW19 collected the exhibits and FSL report Ex. PW19/O.
37. In terms of FSL report Ex. PW10/O dated 16.08.2012 blood could not be detected on T Shirt Ex. P8 of accused and knicker Ex. P9 (Capri/ half pajama) of accused which exhibits described CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 19 of 32 therein are Ex. H1 and Ex.H2 whereas on Ex. P3, P4, P5 and P6 as well as on blood stained hair of deceased and shirt of deceased, blood of 'B' group was ascertained. On chemical and microscopic examination, ethyl alcohol was found to be present in stomach and piece of small intestine, pieces of liver, spleen and kidney of deceased whereas no poisons could be detected therein.
38. In the absence of any direct evidence, circumstantial evidence and scientific evidence against arraigned accused for commission of offence charged, there is sole evidence of PW4 regarding alleged extra judicial confession given by the accused to him. In the case of Tejinder Singh @ Kaka Vs State of Punjab, 2013 (3) JCC 1561, it has been held by Supreme Court that:
24. The extra judicial confession is a weak form of evidence and based on such evidence no conviction and sentence can be imposed upon the appellants and other accused. In support of this proposition, the relevant paragraphs of Pancho's case {2011 (4) JCC 2963} are extracted hereunder:
"16. The extrajudicial confession made by A1, Pratham is the main plank of the prosecution case. It is true that an extrajudicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah Vs State of Bihar this Court while dealing with an extrajudicial confession held that an extrajudicial confession is on CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 20 of 32 the face of it, a weak evidence and the courts are reluctant, in the absence of a chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether the extrajudicial confession of A 1, Pratham inspires confidence and then find out whether there are other cogent circumstances on record to support it."
..........
25. This Court further noted that (Kashmira Singh case, AIR p. 160, para 10) "10... cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be prepared to accept."
...........
27. This Court in Haricharan case further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. This Court reiterated that a confession cannot be treated as substantive evidence against a coaccused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right."
Further, relevant paragraphs from Sahadevan's case are extracted hereunder:
" 14. It is settled principle of criminal CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 21 of 32 jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If,however, the extrajudicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. ..........................
16. Upon a proper analysis of above referred judgments of this Court, it will be appropriate to state the principles which would make an extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused:
(i) The extrajudicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extrajudicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 22 of 32
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
39. It has also been held in the aforesaid case of Tejinder Singh @ Kaka (Supra) that non disclosure of extrajudicial confession either on the same day or within reasonable time either to the police or to the family members of the deceased does not inspire confidence to be accepted as testimony to sustain conviction and sentence of the accused.
40. Similarly in the case of Ghanshyam Prasad Yadav Vs State 2013 (1) JCC 74 it had been held by Delhi High Court that plea of extrajudicial confession requires careful scrutiny before it is accepted. Such extra judicial confession is normally made to a close confident and/or a person on whom the accused relies or from whom he seeks favours and it may be made because of consequent repentance or the guilty is under a belief that the person to whom the confession is made would help or protect him or other reasons which could be weighing on a guilty mind. Principles laid therein for making an extra judicial confession a reliable and trustworthy piece CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 23 of 32 of evidence capable of forming a conviction of an accused are: (i) The extra judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution; (ii) It should be made voluntarily and should be truthful; (iii) It should inspire confidence; (iv) An extra judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; (vi) Such statement essentially has to be proved like any other fact and in accordance with law.
41. In the fact of the matter, on careful scrutiny of evidence of PW4 Sahil Kumar Kanojiya, I find it to be having several infirmities. On one hand PW4 says on 21.04.2012 in the night after taking dinner he had came out from his home and was walking and when he reached near the park, accused came to him at about 11.00 P.M. and stated that he had killed one person. As per PW4, he then CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 24 of 32 noticed that half pant of accused was with blood. PW4 disbelieved the version of accused. PW4 also stated that accused had shown his hands stained with blood and earth and thereafter accused told PW4 that news will be known to him (PW4) in the morning next day. As per PW4, accused threatened him with dire consequences and thereafter they went to their houses. As per PW4, on the next morning, he came to know that father of Sunena was killed and when he came to know that a dead body was lying at a vacant plot near Media Society, C Block, Dwarka Sector7 i.e. in front of park, he went to said spot, noticed and identified the dead body as father of Sunena and returned back to his home. As per PW4, when on the next day he went to his work at about 1.30 P.M. i.e. on 23.04.2012 police had inquired from him and police took him to police station where he narrated entire incident to police. Alongwith the police, PW4 went to search of accused at different places but accused could not be found and later accused was found at Peer Baba, Dwarka, where on pointing out of PW4, police apprehended accused. As per the version of prosecution, during inquiries by IO PW19, PW4 met CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 25 of 32 IO on 25.04.2012 and not on 23.04.2012 as alleged by PW4. As per prosecution version and PW19 IO, it was on 25.04.2012 when PW4 disclosed of accused having given extrajudicial confession of commission of offence of murder to him. It is also the version of PW4, that he joined police on the 3rd day of incident i.e. 23.04.2012 and till arrest of accused Neeraj Rathore on 25.04.2012, he remained with IO PW19 all through. Also is the version of PW4 that at about 2.30 P.M. on 23.04.2012 he came to know that he was being searched by the police, then he had met the police and told them the facts which were stated by accused to him (PW4). PW4 admitted that he had not told the extrajudicial confession of accused to either his own family members or family members of deceased but PW4 in cross examination claimed that he had told this fact of extra judicial confession of accused of offence of murder to mother of his neighbour Kamlesh on 22.04.2012 at 4.30 P.M. Here also PW4 has improved upon his version given in his statement under section 161 Cr.P.C. and IO PW19 in his cross examination stated that PW4 had not told of extrajudicial confession to any other person excepting CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 26 of 32 him (PW19) as per his statement under section 161 Cr.P.C. dated 25.04.2012.
42. Till PW4 met police officials he did not disclose the alleged extrajudicial confession of accused to either his family members or family members of deceased despite having come to know in the morning of 22.04.2012 of death of deceased and even had gone to scene of crime, having seen and identified the body of deceased. Only when PW4 came to know that he was being searched by police, met police, remained confined in police custody then only he gave statement on 25.04.2012 to IO PW19. It had been the arguments of Ld. Defence counsel that when PW4 was under
apprehension that he could be implicated for commission of offence of murder of deceased and was being searched by the police officials, he concocted the story of alleged extrajudicial confession given by accused and in order to solve the blind murder case, the investigating officer introduced the version of PW5 having last seen the accused in the company of deceased and further introduced the version of extrajudicial confession of accused given to PW4. In the CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 27 of 32 fact of the matter, such possibility of events taking place in such manner cannot be ruled out.
43. PW4 testified in cross examination that though he was not aware about the colour of the shirt worn by the accused on the night of incident but the half pant worn by the accused was of red colour and in yellow colour street light he had seen blood spots(Chheente) on the bottom of right leg of red colour capri. It is also the argument of the defence counsel that in yellow colour street light, at such night time at 11.00 P.M., there was no possibility of one being able to notice red colour blood spots on the red colour cloth like capri and accordingly version of PW4 on this count is also concocted. It is not the case that PW4 was not knowing the identity of deceased. On the early morning on 22.04.2012, PW4 came to know identity of the deceased. The deceased was neighbour of PW4. Even accused was neighbour of PW4. Accused did not say that any alarm was caused to him upon threat advanced by accused of dire consequences. Even as per PW4, he had disbelieved the version of accused in night of 21.04.2012 but on the morning of 22.04.2012 CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 28 of 32 PW4 had came to know that the deceased was father of Sunena. It is own version of PW4 that his family members and family members of deceased used to visit house of each other, whereas he (PW4) and accused never visited the house of each other. In view of the fact that PW4, his family members were on visiting terms with the deceased and their family members, there was no impediment in way of PW4 to inform his family members or family members of deceased about extra judicial confession of accused. In fact, PW4 did not inform either his family members or family members of deceased about alleged extrajudicial confession given by accused for commission of murder of deceased Raghubir @ Rais. Such act of PW4 raises eye brows and brings his deposition and his version under cloud of doubt. The improved version of PW4 depicts the conduct of the witness which is inconsistent with the conduct of the ordinary human being in such circumstances. It was duty of PW4 to disclose extrajudicial confession allegedly made by accused either immediately to the police or his relatives or to relatives of deceased. Nothing of the sort was done. When PW4 was himself restrained by CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 29 of 32 police from 23.04.2012 onwards, then on 25.04.2012, IO PW19 recorded the version of PW4 containing alleged extrajudicial confession by accused. There was every likelihood that in order to save own skin PW4 may have put forward the concocted version of alleged extra judicial confession given by accused.
44. In this fact of the matter, the version of PW4 does not inspire confidence nor appears to be believable. Reliance placed on the case of Tejinder Singh @ Kaka (Supra), Ghanshyam Prasad Yadav (Supra), Sakharam Shankar Bansode Vs State of Maharashtra 1994 SCC (Cri.) 505, State of A.P. Vs E Satya Narayana (2009) 14 SCC 400 and Inspector of Police, Tamilnadu Vs Palanisamy @ Selvan, (2008) 14 SCC 495. In this case of circumstantial evidence, in the back drop of law laid in the cases of Padala Veera Reddy (Supra), Hanuman Govind Nargundkar (Supra), Sharad Birdhichand Sarda (Supra), State of U.P. v. Ashok Kumar Srivastava (Supra), Ramreddy Rajesh Khanna Reddy (Supra), no conviction of accused on circumstantial evidence can be based since the prosecution has failed to establish the pieces CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 30 of 32 of incriminating evidence which are reliable and form clinching evidence and the circumstances proved on record do not form such a chain of events as would permit no conclusion other than one of guilt of accused. The circumstances on record are not such which cannot be of any other hypothesis but consistent only with the hypothesis of guilt of accused. Also on evaluating the evidences on record there are pieces of evidence from where more than one inference can be carved out including one favouring innocence of accused. Circumstances placed on record, proved by prosecution are bereft of the fact of accused having been last seen in the company of deceased soon before his murder and the version of extrajudicial confession of accused given to PW4 is not above board, testimony of PW4 being unreliable, it can be said that the circumstances relied upon are not fully established nor cumulative effect of them is so consistent with the only hypothesis of guilt of accused. The prosecution has failed to prove the case against the accused beyond reasonable doubt. Accused is held not guilty and is acquitted of offences charged. His bail bond is cancelled. Surety of accused during trial stands CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 31 of 32 discharged.
45. Accused had earlier furnished a personal bond in sum of Rs.20,000/ and one surety in like amount, under section 437 A Cr.P.C. for period of 6 months with undertaking to appear before Appellate Court or this Court, if so called for. For that the accused and his surety is so bound.
46. File be consigned to record room after digitization of records. Digitally signed by GURVINDER GURVINDER PAL SINGH PAL SINGH Date: 2018.08.21 11:43:03 +0530 Announced in the open court (GURVINDER PAL SINGH) on 21st August, 2018 ASJ 05/SW/DWARKA COURTS NEW DELHI (pb) CNR No. DLSW010002122012 State Vs Neeraj Rathore Page 32 of 32