Delhi District Court
State vs Jai Pal @ J.P. on 29 October, 2009
:1:
In the Court of Ms. Shalinder Kaur
Additional Sessions Judge-FTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 146/09
State Versus Jai Pal @ J.P.
S/o Suminder Singh
R/o Village Tirpuri
PS : Farukh Nagar,
District Gurgaon (Haryana),
L/NK 3rd Grenadiers, Bhatinda,
Punjab.
Case arising out of:
FIR No. : 23/2005
Police Station : Nabi Karim
Under Section : 302/201 IPC
Judgment reserved on : 14.10.2009.
Judgment pronounced on : 29.10.2009.
JUDGMENT
Case History
1. The prosecution case in brief is that on 22.01.05, DD No. 19 B was recorded in police station Nabi Karim, Delhi at 10.43 AM regarding recovery of a dead body at New Delhi Washing Lines near Kath Ka Pul which was handed over to SI Om Prakash who SC No.146/09 State vs. Jaipal :2: reached at the spot and found a burnt dead body of a young boy. Except for back, soles of feet and right palm, the entire body was badly burnt. From the half burnt, back pocket of the pant of the dead body, one half burnt black rexin wallet on which Woodland was embossed was found. From inside the purse two small keys make Nelson, one pocket diary on which with red colour ink Jait/jeet Pal, Gurgaon, Hissar, telephone number 011-25318318 was written, one newspaper cutting on which a photograph of B.R. Chopra and in Hindi 22 April with name and address was printed. On its back side, the name B.R. Chopra and address was written in ink, in Hindi. Besides one soldier railway ticket no. 606564 issued by Chief Booking Supervision, Bhatinda on 01.12.04 were found. A railway ticket no. 04797 from Narenderpur to Delhi junction, ICICI Bank slip on which with pencil 016301520077 was written were also found inside the wallet. Near the dead body one deformed plastic bottle with blue colour cap smelling of kerosene oil, one match box cover make Ship and one burnt match stick were found. The crime scene was photographed and investigated. Identity of the dead body could not be known and neither any eye witness could be found. However, FIR for offences punishable U/s 302/201 was got registered. During investigations site plan was prepared, blood of deceased, earth control, blood stained earth, burnt clothes worn by the dead body, bunt plastic bottle, match cover were seized. The wallet recovered from the back pocket of the pant of the dead body alongwith the documents kept inside it were also seized. After postmortem the dead body was kept for identification. During investigations, the investigating SC No.146/09 State vs. Jaipal :3: officer also came to know that the documents recovered from the wallet were of Purshottam Grenadier and of Jaipal L/NK. Both of them were from 3rd Grenadier Bhatinda, Punjab. On inquiry from their unit it was gathered that they were on leave. Purshottam was in his village whereas Jaipal did not reach his house in village Tripuri, police station Fariq Nagar, Gurgaon, Haryana. There upon father, brother and relative of Jaipal L/NK came to the mortuary and identified his dead body. On checking the records it was found that on 20.01.05, Jaipal L/NK 3rd Grenadier had stayed in Sainik Aaramgrah, New Delhi and on 21.01.05 he had left from there. On 25.01.05 the dead body was handed over to the heirs of Jaipal. After sometime, the IO received a telephone call from Capt. Amit Kanodia, 3rd Grenadier Bhatinda, Punjab informing him that Jaipal telephoned him and asked him for extension of his leave. On this information, it came to be known that Jaipal was alive. Thus, Inspector contacted the heirs of Jaipal and reseized the dead body which was kept in mortuary after preserving it. During investigations it also came to be known that Jaipal was wanted in a case FIR No. 467/04 dated 16.12.04, U/s 25/54/59 Arms Act for recovery of hand grenades. Subsequently, the recovered dead body was identified to be that of Ravi Bengali, vagabond who was a rag picker and was found missing few days ago. After preserving DNA, Finger prints and samples, the dead body was cremated as unidentified. On 30.01.05 accused Jaipal was arrested from Samastpur Village who disclosed that in order to hide his crime as well as his identity so as to save himself from Court Martial, he had killed Ravi Bengali after he consumed liquor.
SC No.146/09 State vs. Jaipal :4: He made the dead body of Ravi Bengali to wear his clothes and kept his wallet with documents on the dead boy and burnt the dead body at New Washing Lines, New Delhi, Railway Station. The accused got recovered the clothes of deceased Ravi Bengali, his own blood stained clothes and pointed out the places where he had stayed in Delhi and obtained a job in fake identity. On conclusion of investigations, the charge sheet was laid.
2. After the case was committed for trial to the sessions, Charge for offences punishable U/s 302/201/411/468/471 IPC was framed against the accused to which he pleaded not guilty. The prosecution has examined 43 witnesses. The plea of the accused as recorded U/s 313 Cr.PC was of denial. He claimed to be innocent and stated that on 25.01.05, he was arrested from Kandhla, UP but was shown to be arrested on 30.01.05 and has been falsely implicated in this case.
Evidence
3. PW-1, SI Lahadu Ram was a member of crime team. He deposed that on 22.10.01, he saw a burnt dead body at New Washing Lines, New Delhi Railway Station. He deposed that Blood was seen at the back side of the head and right side ear of the body and the clothes were torn. He proved his report as Ex.PW- 1/A. SC No.146/09 State vs. Jaipal :5:
4. PW-2, Sh. Manoj is a relative of Jaipal who has deposed that on 24.01.05, he alongwith Om Prakash was taken to a hospital were they were shown a dead body of one person, the face of which could not be identified due to severe burning and the clothes were also severely burnt. They had refused to identify the dead body as of Jaipal. They were shown one diary in which their telephone number was written. On 25.01.05, they were again called to police station to identify the dead body but he did not identify the dead body. He also deposed that police had informed them that it was the dead body of Jaipal.
5. PW-3, HC AK Krishan had taken the photographs at the spot which he proved as Ex.PW-3/A to A10 and their negatives as PW- 3/B1 to B10.
6. PW-4, Inspector Devender Singh prepared the site plan which he proved as Ex.PW-4/A.
7. PW-5, Sh. Mahendroo, another relative of the accused who has also corroborated the testimony of PW2 and deposed that dead body was in burnt condition and beyond recognition. He further deposed that the relatives of Jaipal were having doubts about the identification of the dead body and after postmortem it was handed over to them for cremation. When the dead body was being taken for cremation, police arrived and dead body was again taken in possession by the police by stating that it was not the dead body of Jaipal.
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8. PW-6, Sh. Surender Singh is the younger brother of accused Jaipal. He also deposed on same lines.
9. PW-7, Khalid Khan deposed that he was running kabari shop in Nabi Karim and used to collect junk material from different rag pickers and Ravi Bengali was one of the rag pickers who used to sell his items to him. Ravi Bengali did not come to him for several days and he inquired about him from his friend Nasir who told him on 29.01.05 that Ravi Bengali had died. The witness deposed that on the next day, police took him to JPN Hospital where he was shown a burnt dead body which he identified as that of Ravi Bengali. PW7 has testified that Ravi Bengali used to wear shoes which were similar to the ones as shown to him and the shoes are Ex.P-1 and P-2.
10. PW-8, Ct. Ved Prakash had remained with the dead body till 31.01.05 and testified that no one tampered with it till postmortem was conducted.
11. PW-9, Devender Kumar is the Manager cum Receptionist of the dormitory in Pahar Ganj. He has deposed that one person named Bhaskar Sethi had stayed there on 23.01.05. He proved the register entries to same effect as Ex.PW-9/A. He identified the accused as the same person who had stayed in the dormitory on 23.01.05.
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12. PW-10, Minhasudin was working as Manager cum Receptionist in Yatrika Hotel. He deposed that on 22.01.05 one person by the name of Bhaskar Sethi had stayed in their hotel in room no. 109. He proved the entries in the register as Ex.PW- 10/A and identified the accused as the same person.
13. PW-11 Sumender Singh is the father of the accused who testified that he had taken burnt dead body vide memo Ex.PW-5/A and proved his thumb impression on the identification memo as Ex.PW- 11/A. He also proved the memo Ex.PW-2/A vide which this dead body was re-seized by the police.
14. PW-12, Ajay Minocha had also taken the photographs of the dead body which he proved as Ex.PW-12/A 1 to A14 and the negatives as B1 to B14.
15. PW-13 Rajender Singh has proved that the soldier ticket no. 606564 was issued from Bhatinda and proved the ticket as Ex.PW-13/B.
16. PW-14, Vikas deposed that the accused had made a telephone call from his booth in Khandala on 25.01.05 at about 11/11:30 AM.
17. PW-15, Ct. Rajbir is a formal witness who had collected the plastic container from the hospital and deposed it in FSL Malviya Nagar.
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18. PW-16, Commander S.S. Yadav had furnished the report which he proved as Ex.PW- 16/A regarding transit of accused Jaipal, Grenadier Dheer Singh and Hawaldar (GD) B. Sethi in Sanik Aaramgrah, Delhi.
19. PW-17, Lady Constable Anita has proved DD No. 27B as Ex.PW-17/A vide which Bhaskar Sethi Hawaldar has lodged report regarding missing of his Identity Card, Railway warrant, ATM Card from Sainik Aaramgrah.
20. PW-18, Constable Babru Bhan has deposed that he had taken Special Report of the case to senior police officers and to Area Magistrate.
21. PW-19, Constable Surender had proved the memo Ex.PW- 19/A, B & C vide which the IO had seized various parcels from MAM College.
22. PW-20, Arvind Yadav has proved his report as Ex.PW-20/A vide which unknown phalanges of dead body were examined in FSL.
23. PW-21, ASI Iqbal Singh had recorded the FIR of this case which he proved as Ex.PW-21/B.
24. PW-22 Constable Mahavir Singh deposited 5 sealed parcels in CFSL, Hyderabad.
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25. PW-23, HC Laxmi Narain had collected various parcels from malkhana at police station Nabi Karim vide Road Certificate Number 201/21, 202/21 which he deposited in FSL, Rohini.
26. PW-24 HC Om Prakash was working as MHC(M) on 22.01.05, at police station Nabi Karim. He has proved that on various dates Inspector Rajender Singh had deposited sealed parcels pertaining to this case. Moreover, these sealed parcels were sent to Finger Print Bureau, Malviya Nagar to FSL Rohini, to FSL Hyderabad but by different police personnels on different dates. PW-24 has further proved entries made in register no. 19 vide which the sealed parcels were received in the malkhana of the police station and were sent for examination to different places. The entries made in register no. 19 qua these sealed parcels is Ex.PW-24/A.
27. PW-25, Hawaldar, (JD) Bhaskar Sethi has proved that on 21.1.05 when he came to Delhi and stayed in Sainik Aaram Grah at New Delhi Railway Station, accused Jaipal was also staying at the same place. He has further proved that his Identify Card bearing no. C-726496, ATM Card of State Bank and his railway warrant reservation were stolen on the same day for which he had lodged NCR at about 10:30 AM. The witness identified the accused as the person who had stayed in Sainik Aaram Grah on the said date. He also identified the articles as his own which were recovered later on from the possession of the accused. The SC No.146/09 State vs. Jaipal :10: witness further deposed that he had seen the photograph of the accused in the newspaper.
28. PW-26, Dr. Rohit had conducted postmortem on 25.01.05 on the dead body of Ravi Bengali. He proved his report as Ex.PW- 26/C. According to him the death in this case was due to cranio cerebral damage consequent upon blunt force impact via injury no. 1 which was antemortem, recent and was caused by blunt force impact. Injury no. 1 was sufficient to cause death in ordinary course of nature. He also proved that the viscera, scalp hair, skin, humorous bone, muscle pieces, liver pieces and teeth of the dead body were preserved. The witness deposed that when the dead body was produced before him it could not be identified from any part.
29. PW-27, Nasir has deposed that he was a rag picker working at New Delhi Railway Station and used to sell the items to a junk dealer in Nabi Karim, Sadar Bazar. Ravi Bengal was also a vagabond and a rag picker staying at New Delhi Railway Station with him. He further deposed that the police had made inquiries from him about Ravi Bengali who was missing for about 3-4 days ago. He identified the dead body of Ravi Bengali by his photograph and he had also seen the dead body at washing lines, New Delhi Railway Station. The witness categorically deposed that he was not taken to the mortuary and he identified the dead body from the photograph as of Ravi as hair of the dead body was curly as that of Ravi Bengali. The face of the dead body was not SC No.146/09 State vs. Jaipal :11: identifiable because of burning. The witness was got declared hostile by the Learned APP as he was resiling from his previous statement made to the police. He deposed that shoes of the deceased was shown to him by the police in the police station which were cloth shoes usually worn by army persons. He denied that he has seen the dead body of the deceased in mortuary.
30. PW-28, Harpreet Singh had produced the bank account details in ICICI Bank, Army Cant branch of the accused which he proved as Ex.PW-28/A to Ex.PW-28/D.
31. PW-29, SI Suraj Prakash had obtained the casual leave record of accused which he proved as Ex.PX-1. He had also collected the record of railway warrants which is Ex.PW-13/A.
32. PW-30, ASI SS Dogra had joined the investigations of the case on 30.01.05 with SI Om Prakash. He alongwith SI OM Prakash and Constable Ghurey went to village Samastpur in search of the accused who was apprehended by them near the bus stand at 2:30/3 PM. He proved the arrest memo of the accused as Ex.PW-30/A and his personal search memo as Ex.PW-30/B. He further proved the recovery of the articles made from the brief case of the accused and seizure memo of the articles as Ex.PW-30/D. He proved identification memo Ex.PW- 30/E vide which accused had identified the clothes seized from the dead body of the deceased on 22.01.05. He also proved the disclosure statement made by the accused as Ex.PW-30/F as well SC No.146/09 State vs. Jaipal :12: as the pointing out done by the accused of hotel Yatrika and Sainik Aaram Grah where he had stayed. Memos are Ex.PW-9/B, 9/C, Ex.PW-10/B, 10/C.
33. PW-31, Ms. Sapna has deposed that she was working in Vigilance Security Agency having its office at 5605, Basant Road, Paharganj, Delhi. On 21.01.05, accused had come to her office and disclosed his name as Bhaskar Sethi, Ex-Army man. He produced an identity card in this name having some photograph. He submitted an application form Ex.PW-31/B and she had issued him a slip for Rs. 500/- which is Ex.PW-31/A. She further deposed that this person again met her on 23.01.05 in the office, he was assigned duties and Identity card Ex.PW-31/C. She identified the accused as the person who had come to her office. She further proved the pointing out memo vide which the accused had pointed out their Office to the police on 31.01.05.
34. PW-32, ACP Amarjeet Singh deposed that on 22.01.05 he was posted as SHO, New Delhi Railway Station, while patrolling on that day he went towards New Washing Lines and saw a crowd. On going there, he saw a dead body lying in burnt condition in the Central Washing line. He made efforts for identification of the deceased but no one present there was able to identify the body. As the matter related to police station Nabi Karim so he conveyed a wireless message there. He remained at the spot till police from police station Nabi Karim arrived.
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35. PW-33, Inspector Amardas has proved the FIR under Section 25 Arms Act and Section 5 Explosive Substance Act which was registered on 16.12.04 in police station Jhajjar as Ex.PW33/A and one Tejvir was found in possession of two hand grenades of Indian Army alongwith 3 fuses. During investigations he came to know that the other associate of Tejvir was Jaipal. He made efforts to trace Jaipal from his village but he came to know that he was working in Indian Army and was posted at Bhatinda and he has obtained 10 days leave from his unit from 16.01.05.
36. PW-34, HC Shradhanand is a formal witness who has recorded DD No. 19B on 22.01.05, which he proved as Ex.PW- 34/A.
37. PW-35. HC Anandpal proved DD entries no. 62B, 44B, 35E, 35F,35G vide which different police personnels had taken sealed parcels from the malkhana of police station Nabi Karim to CFSL Rohini, Finger Print Bureau, Malviya Nagar etc.
38. PW-36, Shashi Bala had examined six sealed parcels and proved the reports prepared by her as Ex.PW-36/A and 36/B.
39. PW-37, HC Ghurey Singh had joined the investigation of the case with SI OM Prakash on 22.01.05. He has also proved the recovery of a dead body on the second Western lines at New Delhi Railway Station which was found in burnt condition. He further proved the recovery of a purse with articles from the back SC No.146/09 State vs. Jaipal :14: side pocket of the pant of the dead body. A melted plastic bottle was found lying near the body, a blue colour lid of the bottle besides a match box of Ship and burnt stick were also found there. He deposed that the efforts were made for getting the dead body identified but no one came forward to identify. SI Om Prakash prepared the rukka which he took to the police station for registration of the FIR. After getting the same registered he came back to the spot and handed over the copy of the rukka to IO. He deposed that IO had lifted blood samples, blood stained earth and earth control which he seized vide memo Ex.PW-37/B. He further deposed that at a distance of 40 steps north from the dead body sports shoe make Nike were lying and 15 steps north from the dead body, one kara of iron and 3-4 coins were found lying which were seized vide memo Ex.PW-37/D. He also proved the memo Ex.PW-37/C vide which the remaining portion of burnt shirt, pant, socks, plastic bottle with cap and the match box and burnt stick were seized. He deposed that the dead body after postmortem was handed over to the relatives of accused who had identified it as of Jaipal Singh S/o Samandar Singh. The witness deposed that when they were returning from mortuary, SHO received information on the way that Jaipal whose body was identified at mortuary was alive thereafter they immediately proceeded to Tripuri native village of Samandar Singh and body was again brought to Delhi which was seized vide memo Ex.PW-2/A.
40. The witness also proved the investigations conducted on 30.01.05 which he had joined with SI Om Prakash, ASI S.S. SC No.146/09 State vs. Jaipal :15: Dogra. He proved the arrest of accused, his personal search as well as the articles seized from his suitcase on the said day. The witness proved the disclosure statement made by the accused. He deposed that as per disclosure statement accused has led the police party to hotel Yatrika where he had stayed on 22.01.05 in the name of Bhaskar Sethi and Minhasudin, the Manager of the hotel identified him as Bhaskar Sethi. The register of the hotel was seized vide memo Ex.PW-10/B. He also proved the pointing out memo of the place as Ex.PW-10/C. The witness deposed that accused told that on 23.01.05 he stayed in dormitory, Gali Ramnath Patwa, Paharganj dormitory, the pointing out memo of dormitory is PW-9/C. The manager Devender identified the accused who had stayed there in the name of Bhaskar Sethi at bed no.104. The register was seized vide memo Ex.PW-9/B.
41. Thereafter the witness proved the investigation dated 31.01.05 when the accused led them to the place of occurrence. The pointing out of which was done vide memo Ex.PW-37/E. He also deposed that the accused produced a pair of Hunter shoes of green colour, one pant and a shirt lying concealed from behind the bushes. The shirt was having blood stains on the collar and back side. All these articles were seized vide memo Ex.PW- 37/F. Thereafter the accused led the police party to the office of Vigilance Security stating he had gone there on 21.01.05 and obtained job of Field Officer in the name of Bhaskar Sethi. PW31 Sapna who was present in the office identified the accused as Bhaskar Sethi and produced the photograph and the documents SC No.146/09 State vs. Jaipal :16: submitted by him while obtaining the job. He proved all the articles recovered at the instance of the accused as well as the registers of hotel Yatrika.
42. PW-38, SI Ishwar Singh corroborated the investigations done on 31.01.05 as stated by PW-37. He deposed that on the said day he joined the investigations with IO and accused Jaipal was in their custody who led them to various places as already deposed by PW-37.
43. PW-39, SI Om Prakash had proved the investigation done on 22.01.05. He had partly conducted the investigations and deposed that DD no. 19 B Ex.PW-34/A was assigned to him on 22.01.05. He alongwith Constable Ghurey Singh went to New Delhi Railway Station near Kath Ka Pul where a dead body in burnt condition was lying on the 2nd Washing Line. He further proved the purse and the other articles recovered at the spot. The witness proved the rukka prepared by him as Ex.PW-39/A. The report of the Crime team as Ex.PW-1/A and site plan prepared by him as Ex.PW-39/B. He further proved the investigations conducted by him on 25.01.05, 26.01.05 as well as on 30.01.05 when the accused was arrested and various articles were seized from his suitcase. He also proved the rest of the investigations conducted by him on 31.01.05, 02.02.05 and 15.02.05, 27.03.05 and 06.04.05.
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44. PW-40, Sh. Anurag Sharma is Senior Scientific Officer from FSL Rohini. He is the Hand Writing Expert who had compared the questioned hand writing of the accused with his specimen hand writing and proved his report as Ex.PW-40/F.
45. PW-41, Major Amit Kanodia deposed that in December 2004, he was posted as adjudant at 3rd Grenadier Bhatinda, Punjab and the accused was posted as Lance Naik with the same unit. He deposed that the accused had applied for leave from 17.01.05 to 26.01.05 but proceeded on leave on 16.01.05. He further deposed that on 23.01.05 he received a telephone call from MCO, New Delhi about recovery of a charred dead body of a military personal at New Delhi Railway Station and also about some burnt documents including warrants pertaining to Purshottam and Jaipal after checking record he informed the SHO that Mr. Purshottam and Jaipal were posted at 3rd Grenadier, Bhatinda but were on leave at that time. On inquiry he had found that Mr. Purshottam has reached his house but Lance Naik Jaipal had not gone to his house which he had communicated to the SHO. On 25.01.05 at about 2:45 PM he received a call on mobile claiming to be of Jaipal for extension of leave by one month which information he also told to concerned SHO. Further he had handed over the copy of leave certificate of Jaipal Ex.P-1 to Delhi police on 29.01.05, which was seized vide memo Ex.PW-29/A. SC No.146/09 State vs. Jaipal :18:
46. PW-42, Inspector Rajender Singh Manku is the main investigating officer of the case who has proved the investigations conducted by him.
Contentions
47. Learned APP has submitted that the prosecution case which rests on circumstantial evidence, it has been able to prove the complete chain formed by all the incriminating circumstances against the accused. The motive for committing the murder of Ravi Bengali has been established. It was argued that even if for the sake of arguments, if it is assumed that the person killed by the accused was not Ravi Bengali still prosecution has been able to prove the murder i.e a murder of a human being by a human being.
48. It was argued that the material circumstance of the case is the recovery of documents of the accused, kept in his wallet, from the back pocket of the pant of the burnt dead body, coupled with the proved motive that the accused wanted to show that he was a dead person and in pursuance of the same motive, he also obtained a job in a security agency by concealing his identity but using the identity of another army personnel namely Bhaskar Sethi. The prosecution has been able to prove that the accused had stolen the Identity Card and other documents of Bhaskar Sethi which he used for concealing his identity and for getting a job in the name of Bhaskar Sethi. Moreover, the accused had SC No.146/09 State vs. Jaipal :19: stayed at two places i.e a dormitory in Pahar Ganj and Hotel Yatrika also in Pahar Ganj in the name of Bhaskar Sethi and he has been identified by the Managers of both these places. Thus, the prosecution has been able to prove conclusively its case against the accused.
49. However, on behalf of accused, it was argued that at the outset, the prosecution has not been able to prove the identity of dead body that whether it was of Ravi Bengali. Secondly, the motive has also not been established. Moreover, the chain of circumstances, alleged to be proved by the prosecution has breaking links. Learned Counsel also pointed out various contradictions in the testimony of the witnesses and stated that the case of the prosecution is more improbable than being proved beyond reasonable doubt.
50. It was urged that PW27 Nasir is a planted witness as his antecedents have not been known. The investigations have been conducted in a very ruthless manner. It was also argued that the motive of the prosecution case that the accused wanted to get himself declared dead as he had wanted to escape from another criminal case against him under Explosive Act, has also perished since in that case, the accused has already been discharged by the Learned Court of Sessions. The revision, filed by the State has been dismissed.
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51. It was next submitted that the report of the hand writing expert is not reliable as the prosecution has failed to prove that it had obtained the specimen signatures and hand writing of the accused in the Court. The initials of the Presiding Officer were not taken on any of the specimen hand writing sheets nor any staff was made a witness to show that specimen hand writing of the accused was obtained. The alleged recoveries shown to be made at the instance of the accused also does not inspire confidence. There is no evidence on record to show that the accused was last seen in the company of the deceased. Thus, the prosecution has not been able to prove its case beyond reasonable doubt against the accused.
Findings
52. Admittedly, in this case, there is no direct evidence against the accused. The prosecution is relying upon the circumstantial evidence in order to prove the guilt of the accused. It has been consistently laid down by the Apex Court in number of cases that where a case rests squarely on circumstantial evidence from which the guilt of the accused is to be proved, has to be fully established and same should be of conclusive nature being consistent only with the hypothesis of the guilt of the accused. These circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused. Moreover, the chain of evidence must be so complete that it does not leave any reasonable ground for being consistent with the innocence of the accused.
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53. In the light of the above settled principle of law, let us examine the circumstances, put forth by the prosecution which are as follows :-
(i). Deceased Ravi Bengali has met with homicidal death.
(ii). Recovery of wallet of the accused, containing one soldier railway ticket, one travelling ticket, one pocket diary, one bank slip of ICICI bank, one newspaper cutting from the back pocket and of the pant of the dead body.
(iii). Recovery of blood stained clothes and shoes of the deceased.
(iv). Recovery of blood stained clothes of the accused.
(v). Use of identity of Bhaskar Sethi. (vi). Motive.
Deceased Ravi Bengali has met with homicidal death.
54. PW42 Rajinder Singh Manku has testified that on 22.01.05 at about 12 noon, he got an information that a dead body was lying found at New Washing Lines, near Kath Ka Pul, New Delhi Railway Station. On reaching there, he found SI Om Prakash along with Constable Ghure Singh was already present there. On the middle line, one dead body in burnt condition facing towards sky was lying there and blood was found on mouth, right ear, nose and at the back of head. Except right palm and soles of feet, the entire body was found burnt. The back side of the shirt and hip portion of the pant and socks were partly burnt. Some traces of the clothes on the front side were found on the body. The eyes of SC No.146/09 State vs. Jaipal :22: the body were close and mouth was half open and tongue was between the teeth. The witness has deposed that he made inquires from New Delhi Railway Station and made efforts to establish the identity of the deceased from local inquiry. It is the case of the prosecution that during investigations, it came to be known that the same was the dead body of one Ravi Bengali who was a vagabond in the area.
55. To prove, the identity of the deceased, the prosecution has examined PW7 Khalid Khan who deposed that he was running a Kabadi Shop at A-356, Amar Puri, Nabi Karim, Delhi. He used to collect the junk material from different rag pickers. Ravi Bengali was one of them who used to come to him to sell his items. When Ravi Bengali did not come for several days, he inquired about him from his friend Nasir who told him on 29.01.05 that Ravi Bengali had died. The witness further deposed that on the next day, police personnel came to him and took him to police station from where he was taken to JPN Hospital. He was shown one burnt dead body, wrapped in a white cloth which he identified to be that of Ravi Bengali on the basis of length and breadth of the same. Ravi Bengali used to wear the shoes which are generally worn by the army persons and are known as hunter shoes. The witness did not tell the make or the size of the shoes which the deceased used to wear. The witness was shown in the Court the shoes, recovered at the instance of the accused and he deposed that Ravi Bengali was wearing similar kind of shoes.
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56. During cross-examination, PW7 has admitted that similar like shoes are easily available in the open market. He also deposed that the shoes Ex.P-1 & Ex.P-2, he was seeing for the first time in the Court. The witness deposed that height of the dead body may have been about 5" 6' inches but he could not tell about his own height. However, the witness admitted that the dead body was beyond recognition because of burning.
57. PW27 Nasir is another witness of the prosecution who is stated to have identified the deceased as Ravi Bengali. He deposed that in November 2005, he was working as Rag Picker at New Delhi Railway Station and used to sell his items to a Junk Dealer at Nabi Karim and Sadar Bazar. He deposed that he knew Ravi who was a resident of Calcutta and was also a Rag Picker and was living in Delhi as a Vagabond with him. Ravi was missing 3-4 days before inquiry. He deposed that in police station Nabi Karim, he had identified the dead body by photograph, shown to him by the police. He had also seen the dead body at Washing Line but he was not taken to Mortuary. He identified the dead body from the photograph as of Ravi as the hair of the head of the dead body was curly as that of Ravi. The face of the dead body was not identifiable because of burning.
58. The witness was got declared hostile by Learned APP as he was found to be resiling from his previous statement made to police and in the cross-examination, conducted by Learned APP, the witness admitted that when the police had come to him, he SC No.146/09 State vs. Jaipal :24: was shown a photograph Ex.PX1 which was identified by him as of Ravi but he deposed that he was not taken to Mortuary. He denied that he ever went to Mortuary to identify the dead body. He also deposed that the shoes of the deceased were shown to him by the police in the police station. He identified the shoes, shown to him as the same which Ravi usually used to wear.
59. In the cross-examination on behalf of the accused, the witness has testified that Ravi was a habitual drinker. He used to drink with Sunil who was also a Rag Picker. Fateh Khan, Chhala, Ratan, Tunda were the other Rag Pickers in the area and Ravi was having their company at the time of working. He deposed that sometimes there was quarrel between Ravi and his other friends and he always asked Ravi to refrain from quarrel. He also deposed that he did not know the person by the name of Khalis Khan. The witness testified that the dead body was seen by him at night time and he told the railway police of having seen the dead body immediately. At that time, there was no fire emanating from the dead body when it was seen by him. The railway police came in his presence. The person who had put the dead body on fire had run away.
60. The testimony of PW27 is in contradiction to the prosecution case according to which the dead body was identified by PW27 in the Mortuary. Whereas he has deposed that he had identified the dead body from its photograph, shown to him by the police and also at the place of occurrence. PW27 has deposed that he SC No.146/09 State vs. Jaipal :25: identified the dead body from its hair. Whereas PW7 identified it on the basis of shoes worn by Ravi Bengali. The witness has made an improvement over his statement made to the police that he also identified the dead body by its length and breadth.
61. In the postmortem report Ex.PW26/C, the height of the deceased is shown to be 158 cm. In the inquest papers Ex.PX-1, his height has been mentioned as 5" 3' inches. However, as per seizure memo Ex.PW37/F, vide which the shoes and clothes of the deceased were got recovered by the accused, a pair of old junglee shoes of size 9 are alleged to be the shoes of the deceased. If the height of the deceased was 5" 3', possibly, he would not have been wearing the shoes of such a large size i.e 9 number.
62. PW42 has deposed that PW7 Khalid Khan and PW27 Nasir identified the dead body from the shoes and structure of the body. They did not tell him any identification mark about the deceased. PW42 also deposed that he did not show the shoes of the deceased to these two witnesses but they had told him about the description of the shoes. What description of the shoes they have told to the witness has not been deposed by the witness. Neither PW7 nor PW27 deposed that the shoes worn by the deceased were torn. On one hand, PW7 has deposed that he did not know the size of the shoes Ex.PX-1 & Ex.PX-2 and on the other hand, PW27 deposed that he was shown the shoes of the deceased in the police station. PW42 has admitted that on the information, SC No.146/09 State vs. Jaipal :26: given by Nasir and a Junk Dealer, it came to his knowledge that the deceased was Ravi Bengali. Thus, from the evidence of the witnesses, it emerges that PW7 identified the dead body from its photograph and stated that dead body had curly hair as that of Ravi Bengali and PW27 identified it from the shoes. But the shoes were never shown by the IO to both these witnesses. Moreover, PW26 has deposed that the dead body could not be identified from any part. Thus, it cannot be ruled out that the hair of the dead body may have become curly due to heat and burning.
63. It is also the case of the prosecution that on 22.01.05, after recovery of the dead body and investigations thereafter, the same dead body was identified to be of the accused which was handed over to the relatives of the accused after getting its postmortem conducted on 25.01.05. Later on when it was revealed that the accused was alive, the dead body was repossessed. PW1 and PW2 have deposed that the face of the dead body was beyond recognition. PW5 has deposed that the dead body could not be identified by looking at it from the hair or colour of the skin. PW6 also corroborated the testimony and deposed that the dead body was beyond recognition. Thus, it also creates a doubt on the prosecution version that it was the dead body of one Ravi Bengali because initially the same dead body was recognized as that of the accused. Therefore, it was for the prosecution to lead clinching and conclusive evidence to prove that when the dead body was subsequently identified by PW7 & PW27, it was the dead body of Ravi Bengali.
SC No.146/09 State vs. Jaipal :27:
64. PW27 has identified the dead body from the shoes which were not recovered in his presence. He also admitted that these kind of shoes are available in the market. He could not tell the size or any other identification mark of the shoes. Moreover, he saw the shoes for the first time in the Court. Whereas PW7 had identified the dead body only by its photograph. His testimony regarding seeing the dead body at New Delhi Railway Station is in contradiction to prosecution case and he has also denied the prosecution case that he saw the dead body in the mortuary. Thus, the evidence of both these witnesses is insufficient to establish the identity of the dead body as of Ravi Bengali.
Recovery of wallet of the accused, containing one soldier railway ticket, one travelling ticket, one pocket diary, one bank slip of ICICI bank, one newspaper cutting from the back pocket and of the pant of the dead body.
65. PW37 HC Ghurey Singh deposed that on 22.01.05 after receiving DD No.19B, he along with ASI Om Prakash went to New Delhi Railway Station, New Washing Line near Kath Ka Pul. On the Western Second Line, one dead body of a young boy was lying in burnt condition. From the back side pocket of pant, one rexin purse was recovered which contained a pocket diary, one soldier railway ticket, one travelling ticket, one cutting of newspaper and one bank slip of ICICI Bank. PW39 SI Om Prakash and PW42 Inspector Rajinder Singh Manku have corroborated the testimony of the said witness.
SC No.146/09 State vs. Jaipal :28:
66. Although PW2 has testified that the said purse was not of the accused but he could not depose about the keys and documents, recovered from inside the purse. PW6 testified that one phone number was written on the document which was shown to him in the police station and which was the telephone number of the sister of the accused. This piece of paper of a diary is Ex.P-3. PW37, PW39 and PW42 have proved that the said purse with documents was recovered from the dead body.
67. PW40 Sh. Anurag Sharma is the Hand Writing Expert who has proved the report as Ex.PW40/F, given by him regarding the hand writing of the accused. According to this report, the hand writing, found on the newspaper cutting mentioning about the name of B.R. Chopra and address in Hindi is written by the accused. Moreover, the soldier railway warrant found from the purse has been proved to be issued from Bhatinda by PW13. On the slip of ICICI bank, number of one Purshottam was found to be written. More so, the police started the investigations of the case on the basis of telephone number written on the pocket diary Ex.P-3 and found that the telephone number was of the sister of the accused. PW42 has deposed that the slip of ICICI Bank Ex.PW14/B was having 12 digit number which was found pertaining to Purshottam Grenadier issued from ICICI Bank Branch, Bhatinda. Soldier railway warrant is Ex.P14. Thus, all these witnesses proved that the purse, containing the documents was of the accused.
SC No.146/09 State vs. Jaipal :29: Recovery of blood stained clothes and shoes of the deceased.
68. PW37 HC Ghurey Singh has deposed that on 31.01.05, he along with SHO, PW38 SI Ishwar Singh and accused, on the pointing out of the place of occurrence by the accused went there. The accused pointed out the place where he had changed the clothes and shoes of the body and concealed these behind bushes. The accused produced one pair of hunter shoes of green colour, one pant and shirt. The shirt was having blood stains on the collar (back side). All these articles were seized vide memo Ex.PW37/F and sealed with the seal of 'RS'. However, the witness was not shown these articles in the Court. PW38 also corroborated this fact. During cross-examination, the witness stated that the shirt was having blood stains near the collar. The articles were lying 20 feet away from the spot.
69. Surprisingly, except for these two police personnels, no other persons was joined for the recovery of the clothes and shoes of the deceased though it is a very material circumstance adduced by the prosecution. PW42 has deposed that on 31.01.05, he reached the spot in the morning and he requested some passersby to join investigation but they refused. He did not call any railway person to join investigations. Accused told him that the recovered pant and shirt having blood like stains belonged to deceased Ravi Bengali but he did not show this pant and shirt to Nasir & Khalid. He deposed that the size of shoes was 9 but he did not have any proof to show whether these shoes belonged to SC No.146/09 State vs. Jaipal :30: Ravi Bengali or not or that Ravi Bengali used to wear the shoes of size 9. He also stated that it was very much in his knowledge that he was going to recover the shoes and clothes belonging to Ravi Bengali but he did not think it proper to call Nasir to join the recovery of shoes and clothes of Ravi Bengali.
70. PW7 & PW27 would have been the best witnesses of the prosecution to prove that the shirt and pant, recovered at the instance of the accused were of Ravi Bengali. Specifically PW27 would have been the most appropriate person for identification of the clothes of Ravi Bengali as he had deposed that they used to live together. It has also not explained that why the shoes and these clothes even after recovery were not shown to PW7 & PW27. As deposed by PW42, the recovery is stated to have been effected from near the spot from behind the bushes at a distance of 50-100 paces from the spot. The witness has not explained that when they had recovered the dead body and had investigated at the spot why they were not able to recover the clothes and the shoes from behind the bushes. The height and density of the bushes have not been disclosed to prove that the clothes and shoes could have been concealed there. These bushes are not even shown in the site plan Ex.PW38/E. Thus, the recovery is shown to be effected in a very casual manner. In the judgment reported as Harish Chand @ Billa vs. State 1995 (2) C.C. Cases 503 (HC), the Hon'ble High Court has observed :-
SC No.146/09 State vs. Jaipal :31: It is also very pertinent to note here that in such evidence of discoveries under Section 27 of the Evidence Act the Investigating Officer is taking his subordinate PW/10 Constable Raj Singh as a witness for the said discovery then it becomes very doubtful. It is also very pertinent to note that neither these two witnesses, viz. PW/10 Constable Raj Singh nor PW/16 Amar Singh nor the Investigating Officer have deposed that the said nylon rope was kept hidden inside the kurakundi and that it was not visible. Admittedly, the kurakundi was in an open public place and when the kept hidden there, the said alleged recovery of the nylon rope loses its importance.
The recovery of clothes and shoes in the alleged manner does not inspire any confidence.
Recovery of blood stained clothes of the accused.
71. PW30 ASI S.S. Dogra deposed that on 30.01.05, he along with SI Om Prakash and Constable Ghure Singh went to village Samastpur in search of accused as it was revealed during investigations that sister of the accused had resided in village Samastpur. First of all, they went to the house of sister of the accused. They saw the photograph of the accused in the house but accused was not present in the house. His sister disclosed that Jaipal used to spend his leave at Samastpur and there is possibility of his presence in Samastpur. At about 2.30/ 3 PM, the SC No.146/09 State vs. Jaipal :32: accused was spotted by them near bus stand. He was apprehended and his search was conducted. He was carrying one briefcase of VIP. On checking, some documents i.e education certificates of Bhaskar Sethi, identity card of Bhaskar Sethi of security service on which photograph of Jaipal was affixed, I Card of Bhaskar Sethi, receipt of dormitory in the name of Bhaskar Sethi and receipt of Aaramgrah Yatri Niwas in the name of Bhaskar Sethi were recovered from inside the briefcase. The witness deposed that railway ticket, soldier railway warrant in the name of Bhaskar Sethi were the other items, recovered from the accused. The documents of accused which were recovered were photocopy of Matric mark sheet issued in his name, three colour & two black & white passport size photographs of accused, one cheque book of ICICI Bank having 12 blank cheques, three cheques of ICICI Bank having signatures of Purshottam Singh, one suicide note of accused, one letter written in red ink addressed to one producer, one I Card of accused of Indian Army, two ATM Cards of ICICI Bank of accused were also found from inside the briefcase. He further deposed that one pair leather army shoes, one shirt of army uniform having badge of Grenadier, one pant of army uniform, one dagger, one pair of socks, two white sheets, two pillow covers, one without sleeve sweater and other personal belongings were recovered.
72. The witness has not deposed that blood stained shirt and jeans of the accused were recovered from this briefcase. In cross- examination, the witness deposed that they had returned to police SC No.146/09 State vs. Jaipal :33: station where the accused was interrogated by the SHO and his disclosure statement was recorded. He also deposed that in any of his statement, he has not stated about the recovery of blood stained clothes at the instance of the accused. The blood stained clothes were trouser of black colour and shirt of earth colour.
73. PW37 HC Ghurey Singh has deposed that on 30.01.05, he along with SI Om Prakash and ASI S.S. Dogra went in search of the accused. The accused was apprehended from the bus stop. From his VIP suit case, clothes and army uniform pant, shirt, one dagger and one polythene containing miscellaneous papers, I Card in the name of Bhaskar Sethi and Jai Pal and other documents were recovered. They returned back to police station. The case property was handed over to SHO along with the accused. Accused was interrogated and his disclosure statement Ex.PW30/F was recorded. The accused disclosed that the clothes which he was wearing at the time of incident were kept inside the suitcase. He identified his clothes as one shirt and jeans pant. Blood stains were found on the front side and sleeves of the shirt and also on front side of pant.
74. PW39 SI Om Prakash has corroborated the testimony of these two witnesses. The witness though has deposed about the suit case containing various articles as well as clothes but has not specified about the blood stained shirt and jeans kept in the suit case. PW42, on the other hand, has deposed that he had seized a pant and shirt with spots at the instance of accused from the SC No.146/09 State vs. Jaipal :34: already seized articles from him by Arresting Officer at village Samastpur. He testified that he did not ask the concerned IO why he did not seal these articles. He deposed that the personal belongings found with the accused at the time of his arrest were seized by the Arresting Officer and the same were not inspected by him before recording the disclosure statement. The already seized clothes reportedly worn by accused at the time of incident were inspected by him on production of the same by the accused after making his disclosure statement.
75. The witness also admitted that he had seized the pant and shirt and sealed the same in the police station which were already seized by SI Om Prakash at village Samastpur. He admitted that as per CFSL Report, there was no blood spot on the pant. There were some spots on the pant which were suspected to be blood stains.
76. Thus, it is apparent that the blood stained clothes of the accused have been seized in a very whimsical manner by the IO. Two separate recovery memos of the clothes, seized from the accused from his suit case have been prepared. One seizure memo Ex.PW37/F shows that it was prepared at village Samastpur when SI Om Prakash has seized the clothes. Subsequently another seizure memo, showing the seizure of shirt and pant again stated to be recovered from the same suit case is shown to be seized in the police station. The prosecution has not been able to justify the seizure of the alleged pant and shirt again SC No.146/09 State vs. Jaipal :35: in the police station on 30.01.05 when it was already stated to have been seized by SI Om Prakash. PW37 SI Om Prakash in his testimony has not categorically stated that which of the clothes from the suit case were seized by him. PW30 has not even deposed that jeans and shirt having blood stains were recovered from the suit case of the accused. Thus, the entire evidence led by the prosecution creates a doubt about the recovery of the clothes of the accused that whether these were the same clothes worn by the accused at the time of alleged commission of offence. Moreover, as per CFSL Result Ex.PW36/A, no blood could be detected on jeans and no blood result could be made for the shirt.
Use of identity of Bhaskar Sethi.
77. PW25 Hawaldar Bhaskar Sethi has testified that on 21.01.05, he came to Delhi by Punjab Mail from Firozpur. He stayed at Sainik Aaramgrah at New Delhi where he reached at 6 AM. Accused Jai Pal was also present in the Sainik Aaramgrah. He had put his luggage and went to take bath. When he took out his clothes which he had kept after folding it in the suitcase, he found that his I Card No. C-726496, ATM Card of SBI and his railway warrant reservation were missing. He immediately informed the guard, posted at Sainik Aaramgrah. He made inquiries from the accused but the accused refused to acknowledge and showed his ignorance. He was immediately going to inform the police but accused dissuaded him from doing so saying that I Card and other documents will be recovered sooner or later. The witness SC No.146/09 State vs. Jaipal :36: categorically deposed that where he had put his luggage in Sainik Aaramgrah, only accused was present at that time and he was sitting near his luggage. He lodged the NCR at about 10.30 AM.
78. The witness has further deposed that he was shown the photograph of the accused after the incident and he had also seen his photograph in the newspaper. As the witness had already seen the photograph of the accused in the newspaper, thus, the purpose of holding Test Identification Parade lost its importance as the witness had already identified the accused from his photograph which appeared in the newspaper. The witness also identified his I-Card as Ex.PY2, ATM Card as Ex.PY3, his certificates and mark sheets as Ex.PY4 (Colly.), his warrant and ticket as Ex.PY5 (Colly.)
79. PW16 Commander S.S. Yadav has produced the record and proved his report as Ex.PW16/A regarding transient Sainik Aaramgrah with respect to Jaipal, Grenadier Dheer Singh and Hawaldar Bhaskar Sethi. He deposed that as per record, the accused Jaipal came to Sainik Aaramgrah on 20.10.05 at 21.30 hrs. and left on 21.01.05 at 1.00 PM. Bhaskar Sethi came at 6.00 AM on 21.01.05 and left at 8.20 AM on 22.01.05. This shows that on 21.01.05 till 1.00 PM, both the accused as well as PW25 were staying in Sainik Aaramgrah.
80. PW17 Lady Constable Anita has proved the report regarding missing of I Card, railway warrant from Sainik Aaramgrah, made SC No.146/09 State vs. Jaipal :37: by Bhaskar Sethi, Hawaldar on 21.01.05 at 10.30 AM. She has proved the recording of information by her as DD NO.27B which is Ex.PW17/A.
81. PW30 ASI S.S. Dogra has deposed that when the accused was apprehended on 30.01.05 from Samastpur, from his briefcase, the I Card, education certificates and other documents pertaining to Bhaskar Sethi were recovered. PW39 SI Om Prakash has corroborated his testimony. Thus, it has been proved that the accused was found in possession of I Card, education certificate, railway warrant and other documents of Bhaskar Sethi which were recovered from his suitcase on 30.01.05. Whereas PW25 Bhaskar Sethi has proved that his these articles were stolen on 21.01.05 which he identified. He also identified the accused who had stayed near his bed in Sainik Aaramgrah on 21.01.05.
82. PW9 Devender Kumar has testified that he was working as Manager-cum-Receptionist in the dormitory at Pahar Ganj. On 23.01.05, one person by the name of Bhaskar Sethi had stayed in their dormitory at bed no.104. On 30.01.05, that person came with the police and the witness identified him as the person who stayed in their dormitory in the name of Bhaskar Sethi but his real name was disclosed to be Jaipal. The witness correctly identified the accused. He also deposed that the accused had made entry in the register in his own hand writing. The register has been proved SC No.146/09 State vs. Jaipal :38: as Ex.PW9/A. The witness was cross-examined on behalf of the accused but nothing much could be brought forth.
83. PW40, the Hand Writing Expert has proved the hand writing Q- 8 in the register Ex.PW9.A to be that of the accused.
84. PW10 Minhasuddin has deposed that he was working as Manager-cum-Receptionist in Hotel Yatrika on 22.01.05. He deposed that on the said day, one Bhaskar Sethi checked in his hotel at about 6.45 PM. He was allotted room no. 109. He signed the entries in the register at point A. On 23.01.05, at 8 AM, he vacated the room and signed at that time at point B in the register. On 30.01.05, the police had brought the said person who had stayed in their hotel under the name of Bhaskar Sethi who is the accused. The register is Ex.PW10/A vide which the entry was made in the register. The witness was cross-examined on behalf of the accused but nothing of much relevance could be brought out.
85. It was argued on behalf of the accused that the registers produced by the prosecution do not bear the name of Hotel Yatrika or dormitory, therefore, it is not proved that the said registers belonged to these two places. The said argument is not sustainable as the entries in the register have been proved by PW9 & PW10. Moreover, as per the testimony of PW42 the accused had led the police to both these places which were not in the knowledge of the police. Further more, PW40 has proved the SC No.146/09 State vs. Jaipal :39: hand writing of accused at Q-8 in the register Ex.PW9/A. Thus, it is immaterial that the name of Hotel Yatrika or dormitory is not mentioned on the said registers. But there is nothing to disbelieve that these registers are not of the above mentioned places.
86. PW31 Sapna has deposed that from the year 2003 to December 2005, she was working at Vigilant Security Agency, having its office in Pahar Ganj. On 21.01.05, one person came to the office and disclosed his name as Bhaskar Sethi as Ex- Armyman. He produced identity card in the name of Bhaskar Sethi having some photograph. She obtained initial amount of Rs.500/- and issued the slip Ex.PW31/A. The witness deposed that he also submitted an application form Ex.PW31/B, having photograph of that person. He met her again on 23.01.05 in the office. He was assigned the duties and I Card Ex.PW31/C on which his photograph was affixed which was supplied by him to her in the office. The person was expected to come on 28.01.05 but he did not return. The witness identified the accused present in the Court as the same person who had come. She also proved the pointing out memo Ex.PW31/D vide which the accused had pointed out the office to the police.
87. PW40 Hand writing expert has found the application form written in the handwriting of the accused and also noting made on it at Q-10. The I Card Ex.PW31/B is on record on which the name of Bhaskar Sethi has been mentioned but the photograph of the accused has been affixed.
SC No.146/09 State vs. Jaipal :40:
88. Argument was raised that the testimony of PW31 is not believable as the IO has failed to show that who was the owner of the security agency. The application form Ex.PW31/B does not even bear the name of the security agency. Moreover, PW31 has testified that she is using two names sometimes Rajni and sometimes Sapna. Therefore, her own identity is doubtful.
89. The application form Ex.PW31/B bears the stamp of Vigilant Security Agency which gives identification to the form that it belonged to Vigilant Security Agency. Moreover, PW31 is stated to have been working as Receptionist-cum-Office Incharge in the Agency. As she herself dealt with the accused, thus, there was no need to record the statement of owner of the agency. Even if the statement of the owner of agency had not been recorded, it does not demolish the said circumstance.
90. PW31 has deposed during cross-examination that the agency was owned by Mrs. Saroj Chauhan. No employee was ever given any appointment letter of the agency. Thus, it is also immaterial that no appointment letter was given to PW31 as sometimes, the agencies and firms do not issue any appointment letters. The fact that witness sometimes used her name as Rajni or Sapna also does not has any bearing upon this case and on this account her testimony cannot be discarded. It is categorically proved by the prosecution that the accused had forged the appointment letter as well as the identity card by using the name of Bhaskar Sethi and SC No.146/09 State vs. Jaipal :41: showed himself as Ex-Armyman in order to use these documents to obtain a job in the said agency.
91. It was also urged on behalf of the accused that it is not believable that the accused had obtained the job in the company on the basis of I Card of Bhaskar Sethi because on that I Card, the photograph of Bhaskar Sethi was affixed so PW31 could have immediately seen that the photograph of the accused was not on the I Card but of some other persons was there.
92. PW31 has explained this fact as she has testified that at the time of submitting application form Ex.PW31/B, one I Card which was in the name of Bhaskar Sethi was shown to her but the photograph on the said I Card was not quite visible. Thus, it explains that how even after seeing the I Card of Bhaskar Sethi, PW31 was not able to identify that it was not the photograph of accused Jai Pal but of some other person. Accordingly, it emerges that the accused was found in possession of stolen articles of PW25 which he used and forged the application form to obtain job in Vigilant Security Agency. He also used the identity of PW25 to stay in Hotel Yatrika and dormitory in Pahar Ganj.
Motive
93. It is the case of the prosecution that the accused had killed one Ravi Bengali and thereafter burnt his body beyond identification as he wanted to switch over his identity with dead SC No.146/09 State vs. Jaipal :42: body to save himself from Court Martial as a case under Explosive Act was pending against him. He kept his purse, containing his identity documents in the back pocket of the pant of the dead body, so as to establish that he had died. In order to further achieve his motive, he stole the I Card and other documents of one Bhaskar Sethi who stayed with him in Sainik Aaramgrah and used his identity and attained a job of Field Officer in Vigilant Security Agency on the basis of the said forged documents. However, the prosecution has not been able to prove the motive that the accused killed Ravi Bengali to show himself as dead so as to save himself from another criminal case, pending against him.
94. PW41 Major Amit Kanodia has deposed that the accused was posted as Lance Nayak with third Grenadiers. He was temporarily attached with Ammunition Depot for security duties at Bhatinda. In December 2004, a team of army personnel including Lance Nayak Jai Pal proceeded on temporary duty from Bhatinda to Bhandok MP for deposit of ammunition via Delhi. On account of non- availability of train facility, the team had to stay back at railway station at New Delhi. The members of team travelled on Military Railway Warrant, issued by Administrative Officer Ammunition Depot, Bhatinda. After deposit of ammunition at destination, the accused Jaipal reported back at Bhatinda on 31.12.2004 regarding completion of his duty. Thereafter he applied for leave from 17.01.05 to 26.01.05 but he actually proceeded on leave SC No.146/09 State vs. Jaipal :43: from 16.01.05. From this evidence, it emerges that from 20.01.05 to early morning 24.01.05, the accused had stayed in Delhi.
95. PW41 further deposed that on 25.01.05 at about 2.45 PM, he received a call on his mobile from a person, claiming to be Jai Pal for extension of leave for one month on which he asked Ja Pal to report back to the office in case he seeks further extension of leave. He informed about this talk to the concerned SHO. The witness proved the leave certificate of the accused as Ex.P-1. PW14 Vikas has deposed that he was running a PCO Booth in the year 1999 in Kandla. On 25.01.05, some police officers came from Delhi to him. The accused had made a telephone call from his booth on 25.01.05 at about 11/11.30 AM. He had heard the conversation of the accused when he was calling Bhatinda and was talking about his leave.
96. PW42 has deposed that during investigations, it was revealed that both the accused Jaipal and Purshottam were on leave from the unit. The Bhatinda Unit was further requested to confirm about the whereabouts of these two. It was confirmed by Bhatinda Unit that Purshottam belonged to Pathankot and was very much available in his native village. However, accused Jai Pal who belonged to village Tirpuri, police station Farookh Nagar, Gurgaon had not reached his native village. Thus, the investigating agency had presumed that the dead body, recovered from Washing Line, Kath Ka Pul, New Delhi Railway Station was of the accused which after postmortem was handed over to the relatives of the accused SC No.146/09 State vs. Jaipal :44: after getting it identified from his relations. The witness further deposed that he had received a telephone call from Amit Kanodia, Captain 3-Grenadier, Bhatinda, informing him that he had received a telephone call from a person claiming to be Jai Pal and requesting for extension of leave. Since, the said information created doubt in his mind about identification of deceased, he discussed the matter with his senior police officials and rushed to Gurgaon. While on the way, he directed the relatives of the deceased who were taking the dead body for cremation, not to cremate the dead body. He obtained the telephone number of the person who had talked with Captain Kanodia for extension of leave. He contacted the said telephone number which belonged to one PCO, Village Kandhla, Muzaffar Nagar, UP. He sent two police officials to the said village to get the details of said telephone number from Vikas Mishra at village Kandhla. The IO came to know that telephone call for extension of leave was made from this telephone number.
97. The said telephone call creates a doubt on the motive, as put forth by the prosecution. Had the accused killed and burnt the dead body of Ravi Bengali on 21.01.05 with the motive to show himself to be dead then he would not have telephoned on 25.01.05 when his leave for 10 days was expiring on 26.01.05 to his Unit for extension of his leave. Moreover, as per testimony of PW31, accused went to the Office of Vigilant Security Agency during the day time on 21.01.05. The prosecution has not led any evidence to prove that accused knew the deceased or was seen SC No.146/09 State vs. Jaipal :45: with him that he had planned to kill him at night as he was able to obtain the fake identity for himself in the name of Bhaskar Sethi. Even, if it is assumed that the said dead body was of Ravi Bengali, no evidence has been adduced to show that both were known to each other. PW42 has deposed that he had found no witness who had seen the accused and the deceased Ravi Bengali together. Thus, the main link connecting the accused with deceased has not been established by the prosecution.
98. From the FSL report Ex.PW43/A, it emerges that on examination of viscera and other parts of body of the deceased, common poison including ethyl alcohol could not be detected. Thus, prosecution has failed to prove about the presence of ethyl alcohol in the body of the deceased. Although it is the case of the prosecution that on 21.01.05, deceased was made to drink liquor by the accused. No evidence of taking liquor was found even at the spot. Thus, the prosecution has failed to establish the motive of the accused. In the judgment Major Singh vs. State of Punjab (2006) 10 Supreme Court Cases 499, the Hon'ble Supreme Court has observed that it is well settled in criminal law that motive is not very material in a case of direct evidence but it is very important in a case of circumstantial evidence. Hon'ble Delhi High Court in Harish Chander @ Billa vs. State (supra) has held that the absence of motive in a case of circumstantial evidence goes heavily in favour of the accused.
SC No.146/09 State vs. Jaipal :46:
99. It is also the case of the prosecution that at the place of occurrence from where the dead body was recovered, one pair of sport shoes make Nike, colour blue & black were recovered under the slab at a distance of 40 paces from the dead body. At a distance of 15 paces, one iron kara and four coins were recovered. However, the prosecution has not been able to explain that to whom these shoes and kara had belonged to. The prosecution has also not shown that the said kara or shoes either belonged to accused or to the deceased. Thus, the presence of a third person at the site cannot be ruled out.
100. In the present case, the investigations have been conducted in a very slip short and causal manner, the benefit of which is to be given to the accused. Moreover, the material recovery and the seizures of the case property has been done by Sub Inspector and not by the SHO himself who was the main Investigating Officer of this case. Being a murder trial, it was required that the entire investigations of the case should have been conducted by him. Thus, prosecution has failed to establish a complete chain of circumstances to bring home the guilt of the accused that he killed Ravi Bengali and thereafter made the evidence of commission of offence to disappear. The prosecution has also not been able to prove beyond reasonable doubt that the dead body recovered in this case was of Ravi Bengali and similarly the other circumstances, put forth by the prosecution are also doubtful. However, the prosecution has been able to prove that the recovery of a purse, containing the documents of accused from SC No.146/09 State vs. Jaipal :47: the back pocket pant of the deceased but the same by itself is not sufficient to prove that it is the accused who had committed the murder of the deceased. The prosecution has also failed to establish the motive of the murder.
101. Nevertheless, the prosecution has been able to prove that the stolen I Card and other documents, belonging to Bhaskar Sethi which were recovered from the possession of accused and he had used the same in securing a job for himself in a Security Agency. Moreover, he had used the name of Bhaskar Sethi while staying at a dormitory and in Hotel Yatrika in Pahar Ganj. He had forged the application form Ex.PW31/B by writing the name of Bhaskar Sethi and his particulars and obtained the I Card by getting his own photograph affixed on it under the name of Bhaskar Sethi to be used by him.
102. Accordingly, the prosecution has been able to prove its case beyond reasonable doubt for offences punishable U/s 411/468/471 IPC. The accused is held guilty for the said offences. The accused is acquitted for the offence punishable U/s 302/201 IPC after giving him benefit of doubt.
Announced in the Open Court On 29.10.2009 (Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC No.146/09 State vs. Jaipal :48: State Vs. Jaipal SC No. : 146/09 29.10.2009.
4:15 PM Present : None for State.
Accused on bail with Counsel Sh. Ashok Mahey.
Vide judgment announced of even date on separate sheets, the accused is held guilty for the offences U/s 411/468/471 IPC. The accused is acquitted for the offence punishable U/s 302/201 IPC after giving him benefit of doubt.
Put up for Order on Sentence on 05.11.09 at 2 PM.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC No.146/09 State vs. Jaipal :49: In the Court of Ms. Shalinder Kaur Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 146/09
State Versus Jai Pal @ J.P.
S/o Suminder Singh
R/o Village Tirpuri
PS : Farukh Nagar,
District Gurgaon (Haryana),
L/NK 3rd Grenadiers, Bhatinda,
Punjab.
Case arising out of:
FIR No. : 23/2005
Police Station : Nabi Karim
Under Section : 302/201 IPC
ORDER ON SENTENCE:
1. Heard on the point of sentence.
2. It is stated on behalf of the convict, that he be given benefit of probation, keeping in view his future prospects that he may be able to obtain a decent job or may be reinstated in his previous job. It is further stated that the accused has old parents and he is to look after them as his brothers are settled in their own families. It is also stated that he is not a previous convict.
3. Whereas Learned APP states that the convict may be given maximum sentence so that it should be a deterrent for him.
SC No.146/09 State vs. Jaipal :50:
4. In view of the submissions made as well as the antecedents of the convict, placed before me and the facts and circumstances of the case, specifically that he had forged the application form to obtain the job in name of some other army person and had also used the identity of that person to stay at different places. Further those documents of the other army person which were stolen were found in his possession, the convict is sentenced for one year and to pay a fine of Rs.500/- for the offence punishable U/s 411 IPC , in default SI for one month. He is sentenced for two years nine months and to pay a fine of Rs.1000/- for offence punishable U/s 468 IPC, in default SI for two months. He is also sentenced for two years nine months and to pay a fine of Rs.1000/- for offence punishable U/s 471 IPC, in default SI for two months. Sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to the convict. Copies be given free of cost to the convict.
Announced in the Open Court On 05.11.2009.
(Shalinder Kaur) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC No.146/09 State vs. Jaipal :51: State Vs. Jaipal FIR No. 23/05 PS : Nabi Karim SC No. : 146/09 05.11.2009.
3:00 PM Present : Sh. Masood Ahmed, Learned APP for State.
Convict in person with Counsel Sh. Ashok Mahey.
Arguments heard on point of Sentence.
Vide Order on Sentence announced of even date on separate sheets, the convict is sentenced for one year and to pay a fine of Rs.500/- for the offence punishable U/s 411 IPC , in default SI for one month. He is sentenced for two years nine months and to pay a fine of Rs.1000/- for offence punishable U/s 468 IPC, in default SI for two months. He is also sentenced for two years nine months and to pay a fine of Rs.1000/- for offence punishable U/s 471 IPC, in default SI for two months. Sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to the convict. Copies be given free of cost to the convict.
Report of the Reader has been called to state for which period the convict had been in custody. Report of the Reader seen, according to which the convict had been in custody for a period of two years 11 months and 12 days. Reader has also reported that the convict has deposited the amount of fine imposed. Thus, as he has SC No.146/09 State vs. Jaipal :52: already spent the period of sentence in custody, he need not be taken into custody. Bail bond and surety discharged.
File be consigned to Record Room.
(SHALINDER KAUR) Additional Sessions Judge-FTC (Central) Tis Hazari Courts: Delhi.
SC No.146/09 State vs. Jaipal