Delhi District Court
State vs . Avnish @ Kalu Etc on 28 March, 2023
State Vs. Avnish @ Kalu etc
IN THE COURT OF ARUN SUKHIJA: ADDL. SESSIONS
JUDGE-03 (EAST): KARKARDOOMA COURTS: DELHI.
SC No. 2253/2016
State Versus 1. Avnish @ Kalu
S/o Sh. Devdutt
R/o TA-287, Gali No. 5,
Tughlakabad Extn., New Delhi.
Permanent Add.: Village Nangla,
PS Balrai, Ditt. Itawa U.P.
2. Abhishek @ Vikas
S/o Sh. Ram Milar
R/o Village Khagipur,
PS Fafund, Distt. Auraiya, U.P.
FIR No. 294/2016
PS Krishna Nagar
U/s. 364/365/368/302/201/120 B IPC
Chargesheet Filed on : 21.09.2016
Chargesheet Allocated on : 06.10.2016
Presided Over this court on : 22.07.2021
Judgment Reserved on : 10.03.2023
Judgment Announced on : 28.03.2023
::- J U D G M E N T -::
1.Facts germane, necessary, for disposal of the present matter, briefly, are that on 19.05.2016, one Sh. Virender Kumar @ Guddu, S/o Sh. Santosh Kumar, came to P.S. Krishna Nagar and got lodged his report inter alia stating therein that since 18.05.2016, Ms. Soni, her sister, is missing and mentioned her physical description along with the clothes which were worn by her. On it, present case FIR No. 294/2016 PS Krishna Nagar Page - 1 of 35 State Vs. Avnish @ Kalu etc bearing FIR under Section 363 of Indian Penal Code, 1860 (in short "IPC") was registered. It is also case of the prosecution that efforts were made to search the missing girl, but in vain and even the messages were flashed on ZIP Net. During investigations, it was also revealed by the said complainant that said missing girl used to talk through the mobile phone 9871554051 of her Maami with one boy namely Vikas @ Abhishek, resident of their native village and that now-a-days, he is residing nearby Brijwasan, Delhi. The said complainant also informed the police that even two years prior to that date, matter was resolved by villagers on an issue between Soni and said Abhishek @ Vikas and raised his suspicion that said Abhishek @ Vikas is responsible for abduction of her missing sister further revealing the mobile number 9810281216 of said Abhishek @ Vikas. Said complainant further revealed that he had received call on his mobile number 8527672697 from mobile number 8750981966 and her sister i.e. missing girl informed him that she had gone far away and there is no need to search her.
Investigating Officer analysed the CDRs of abovementioned numbers and it was found that on 18.05.2016 i.e. day of incident, talks were there from mobile number 9871554051 to 9810281216 for long duration and as per the location chart, at that time, 9810281216 was near Brijwasan, Delhi. It also came to the notice of the IO that said phone was of one Manju W/o Sh. Tilak Raj and same has been reported to be misplaced and FIR No. 294/2016 PS Krishna Nagar Page - 2 of 35 State Vs. Avnish @ Kalu etc for the same, an NCR dated 20.05.2016 has been got lodged.
2. During further investigations of the case, on the basis of CDRs and inquiries, accused Avnish @ Kalu was arrested and he confessed the guilt of murder of said missing girl and also disclosed the involvement of his associates as Abhishek @ Vikas disclosing the reason and manner of committing the crime in question. One female child namely 'F' (name withheld being juvenile) was also been apprehended for the commission of offence. Case exhibits were also seized.
3. It is also pertinent to mention here that earlier accused Abhishek @ Vikas also claimed juvenility and at that time, Chargesheet was filed before the Court of ld. MM against accused Avnish @ Kalu after concluding the investigations of this case.
4. After compliance of the provisions of Sec. 207 of Code of Criminal Procedure, 1973 (in Short "CrPC") by the Court of learned MM, case was committed to the Court of Sessions, as the offence under Sec. 302 IPC is exclusively triable by it.
5. Vide order dated 02.12.2016 passed by the ld. Predecessor, accused Avnish @ Kalu was charged for the offences punishable under Secs. 120-B IPC r/w Sec. 364/365/368/302/201 IPC and also 364/365 IPC; 368 IPC; 302 IPC; 201 IPC and 201 IPC. To the said charges, accused pleaded not guilty and claimed trial.
FIR No. 294/2016 PS Krishna Nagar Page - 3 of 35 State Vs. Avnish @ Kalu etc
6. At the stage of prosecution evidence, Chargesheet of accused Abhishek @ Vikas was also committed to the Court of Sessions and vide order dated 15.01.201, said accused Abhishek @ Vikas was also charged for the offences punishable under Secs. 120-B IPC r/w 364/365/368/302/201 IPC; 368 IPC; 302 IPC and 201 IPC. To the charges, said accused also pleaded not guilty and claimed trial.
7. In order to prove the guilt against these accused persons, prosecution took help of total 24 witnesses. These witnesses are as follows:-
(a) PW-1 Ganesh Chand deposed that Avnish @ Kalu had been residing in his house bearing no. 287, Gali no. 5, Tughlakabad, Delhi as tenant with his wife for about ten months from June 2016 and in the month of June 2016, he left his house after locking it. This witness further deposed that on 24.06.2016, police came to his house with said accused, got recovered one pair of chappal, which was seized vide memo Ex.PW1/A. During cross-examination conducted by ld. Addl. PP, this witness admitted that accused was residing there with 'F' @ 'G' @ 'G' (name withheld being juvenile).
(b) PW-2 Sh. Kesar Singh, driver working with J.K. Travels, deposed that on 28.05.2016, as per information from his owner, he went to Gali no. 5, Tughlakabad Extn. at about 8 p.m. to board passenger from the said place to Dwarka Morh. This FIR No. 294/2016 PS Krishna Nagar Page - 4 of 35 State Vs. Avnish @ Kalu etc witness further deposed that two boys came there with a gunny bag and accused Avnish sat near to him on front seat and on reaching Kakrola Nallah, both said persons taken out the said gunny bag and asked him (this witness) to wait and after about 10-
15 minutes, they came and then, this witness de- boarded them at Tughlakabad Extn. This witness further deposed that after about one month of the same, police seized the said taxi vide memo Ex.PW2/A and identified the said taxi.
(c) PW-3 Sh. Balwinder Sigh is the owner of J.K. Travels and deposed that on 28.05.2016, one person with the name of Avnish booked taxi from Tughlakabad Extn. to Dwarka Morh, on which, Sh. Kesar Singh (PW-2) was sent and taxi was taken from Tughlakabad Extn. to Dwarka Morh and then, to Tughlakabad Extn. and then, he produced the said taxi, which was seized vide memo Ex.PW2A. He is also a witness to the seizure of record i.e. register vide memo Ex.PW3/A and other relevant record vide memos Ex.PW3/C & D.
(d) PW-4 Sh. Kirpal Singh is another witness in respect of taxi and he claimed to be owner of the taxi and got the said taxi back vide sueprdarinama Ex.PW4/A.
(e) PW-5 Tilak is a witness to the effect that mobile phone with SIM No. 8750981966, in the name of Mrs. Manju, his wife, was stolen on 18.05.2016 and FIR No. 294/2016 PS Krishna Nagar Page - 5 of 35 State Vs. Avnish @ Kalu etc NCR for the same was lodged on 20.05.2016 and copy of the NCR Ex.PW5/A was provided to the IO.
(f) PW-6 ASI Subhash proved the copy of the FIR Ex.PW6/A.
(g) PW-7 HC Nand Kishore got registered the FIR on being ruqqa handed-over to him. He again joined the investigations of this case on 28.06.2016 and proved the memo Ex.PW7/A, vide which, phones were seized at the pointing-out of Avneesh @ Kalu.
(h) PW-8 Sh. Virender Kumar is the complainant, brother of missing girl. He also proved TIP proceedings Ex.PW8/B and also identified both accused persons.
(i) PW-9 Ms. Swati Katiyar, the then Ld. MM, proved proceedings Ex.PW9/A to C.
(j) PW-10 Dr. Ruchi Sharma, from FSL, proved the reports Ex.PW10/A & B. PW-13 Sh. Ajay Kumar, SSO (Chemistry), from FSL also proved the report Ex.PW13/A. PW-20 Ms. Amita Raghav, FSL proved the FSL report Ex.PW20/A. PW-21 Jitender Kumar, FSL proved the FSL report Ex.PW21/A.
(k) PW-11 ASI Narender deposited the case exhibits with FSL and proved Ex.PW11/A to D for the same. PW-12 HC Anil is also a witness to the same effect and proved Ex.PW12/A & B for the same.
(l) PW-14 Dr. Rajan Sethi proved Ex.PW14/A & 14/B
- rent agreement and its seizure by the police.
FIR No. 294/2016 PS Krishna Nagar Page - 6 of 35 State Vs. Avnish @ Kalu etc
(m) PW-15 Const. Jagparvesh joined the investigations of this case and identified some of the exhibits.
(n) PW-16 Surender Kumar, Nodal Officer proved the record of mobile phones as Ex.PW16/A to H. PW- 22 Prashant Kumar, Nodal Officer proved the record of mobile phones as Ex.PW22/A to R.
(o) PW-17 HC Vinod Kumar joined the investigations of this case and is a witness to the proceedings conducted on 28.06.2016 and 30.08.2016.
(p) PW-18 SI Lokesh is part IO of the case and proved the memos Ex.PW18/A to C. PW-23 SI Lalit Kumar is also part IO of the case and proved the memos Ex.PW23/A to H.
(q) PW-19 SI Sonu Kaushik proved the scaled Site Plan.
(r) PW-24 Inspt. M.C. Pandey is the Investigating Officer of the case and proved various memos, including the memos Ex.PW24/A to D and filed the Chargesheet before the Court of ld. MM concerned.
8. After closure of Prosecution evidence, statement of accused persons was recorded under Sec. 313 CrPC and the incriminating evidence was put to them. Both accused persons pleaded their innocence. Accused Abhishek @ Vikas further pleaded that earlier, while he was residing in his native village, there was a quarrel between Virender @ Guddu - brother of Soni, the complainant, and Bablu, one boy of same village and said matter was intervened and pacified by him and only since then, Virender was having FIR No. 294/2016 PS Krishna Nagar Page - 7 of 35 State Vs. Avnish @ Kalu etc grudge against him. He further pleaded that later on, when he came to Delhi and residing with Sh. Roop Singh, his brother-in-law (jeeja), one day, police of Police Post Seelampur phoned him to call him (said accused) to Police post and when he reached there, Virender was found present there and only at that time, it was revealed to him (this accused) that Virender has named him in the murder of his sister. He further pleaded that he was detained illegally for 7-8 days and then, implicated falsely in this case. This accused further pleaded that his signatures were obtained on end number of blank papers and then, the same were used against him in the present matter.
Accused Abhishek also pleaded that he was never apprehended by the police, as alleged and was also not aware about the address of Delhi of said Virender and Soni and after his detention, he came to know that police also illegally detained Avneesh, son of my Bua. This accused further pleaded that firstly, his brother-in-law (jeeja) namely Ravi was lifted and then, he was lifted by the police and illegally detained for about eight days and then, implicated falsely in this case. Further plea of this accused is that his signatures were obtained on end number of blank papers and then, same were used against them in the present matter.
Neither of these accused opted to lead defence evidence nor claimed over case property.
9. I have heard learned Addl. PP for the State and ld. defence counsels as well and also scrutinized the record in view of FIR No. 294/2016 PS Krishna Nagar Page - 8 of 35 State Vs. Avnish @ Kalu etc the law laid down.
10. Learned Addl. PP for the State argued that prosecution has been able to prove the charges through evidence of all material witnesses coupled with other material on record including CDRs, which clearly established that parties concerned talked to each other and also that accused persons threw the body of deceased after committing her murder. He also submitted that motive for the same has also been established in the present matter and as such, prosecution has fully established the prosecution case. Ld. Addl. PP for the State further contended that admittedly, corpse could not be found but absence of the same is not fatal to the prosecution case, as otherwise, case is fully established in view of the law on issue. Ld. Addl. PP further submitted that mere simple denial of the facts is of no value in the eyes of law and thus, prayed for conviction to these accused persons.
11. First and foremost contention of ld. defence counsel is that non-recovery of the corpse is a major dent and as such, firstly, prosecution has not able to prove its case beyond any reasonable doubt even to the effect that whether said missing girl is still alive or not. Apart from that, one of the contentions of ld. defence counsels was that there are major contradictions/improvements and omissions in the testimony of the prosecution witnesses and ld. counsel for the accused Avnish @ Kalu submitted the chart disclosing the same. Besides the above, it is also submitted that admittedly, case depends upon circumstantial evidence and FIR No. 294/2016 PS Krishna Nagar Page - 9 of 35 State Vs. Avnish @ Kalu etc prosecution has failed to prove the chain, as per settled law well known being Panchsheel, as mentioned in case reported as Sharad Birdhich and Sarda Vs. State of Maharashtra1. Moreover, it is also submitted that prosecution has failed to establish any theory of motive and/or last seen evidence as none has proved that it was the accused persons who were last seen with the deceased and also in the absence of medical evidence/FSL expert that any alleged recovery was of deceased or lifting of any blood sample of either of these accused persons. It is also submitted by ld. defence counsels that prosecution has failed to prove that any of the CDRs to the effect that it was being used by either of these accused persons or in the name of the either of accused or of missing girl Soni and all this is clear indication that prosecution has failed to prove its case beyond reasonable doubts, which is primary duty of the prosecution and as such, as per the settled law, if two views are possible, benefit of the same must be given to the accused and thus, prayed for acquittal of these accused persons. In support of his contentions, reliance has been placed on the case reported as - Indrajit Das Vs. State of Tripura2 and Rishipal v. State of Uttarakhand3.
12. Now, Court will evaluate the testimony of the prosecution witness to the effect that whether prosecution has proved its case beyond all reasonable doubts or not.
1(1984) 4 SCC 116 22023 SCC OnLine SC 201 3(2013) 12 SCC 551 FIR No. 294/2016 PS Krishna Nagar Page - 10 of 35 State Vs. Avnish @ Kalu etc PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE
13. It is admitted case of the prosecution that there is no eye witness to the murder of deceased in the present matter and case depends upon circumstantial evidence.
14. The Hon'ble Supreme Court in para Nos.153 and 154 of Sharad Birdhich and Sarda Vs. State of Maharashtra4, while dealing with circumstantial evidence, held that "(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 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." The Hon'ble Supreme Court has termed them as five golden principles or panchsheel of the proof of a case based on circumstantial evidence.
15. It is apt to reproduce the observations made in para no.10 by the Hon'ble Supreme Court in Sattatiya Vs. State of 4(1984) 4 SCC 116 FIR No. 294/2016 PS Krishna Nagar Page - 11 of 35 State Vs. Avnish @ Kalu etc Maharashtra5 "10...... The Court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances..."
16. The legal position in respect of circumstantial evidence was also summarised in para No.10 by the Hon'ble Apex Court in the case of Padala Veera Reddy Vs. State of Andhra Pradesh6 and the same are: (a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (c) 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 (d) 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 5(2008) 3 SCC 210 61989 Supp (2) SCC 706 FIR No. 294/2016 PS Krishna Nagar Page - 12 of 35 State Vs. Avnish @ Kalu etc of the accused but should be inconsistent with his innocence.
17. In G. Parshwanath Vs. State of Karnataka 7, the Hon'ble Supreme Court in para no. 23 has held that: "23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court thereafter has to consider the effect of proved facts. In deciding the sufficiency of the 7(2010) 8 SCC 593 FIR No. 294/2016 PS Krishna Nagar Page - 13 of 35 State Vs. Avnish @ Kalu etc circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved..."
18. In Ramreddy Rajesh Khanna Reddy Vs. State of A.P.8, the Hon'ble Supreme Court held in para no.26 that: "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence..."
19. In Indrajit Das Vs. State of Tripura9, the Hon'ble Supreme Court in para no.12 has held that "12. The 8(2006) 10 SCC 172 92023 SCC OnLine SC 201 FIR No. 294/2016 PS Krishna Nagar Page - 14 of 35 State Vs. Avnish @ Kalu etc basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances."
THEORY OF CDR'S OF DIFFERENT MOBILE PHONES
20. As per prosecution, vide Seizure Memo dated 29.06.2016 Ex.PW7/A, following three phones were seized:-
(i) Nokia (black) bearing IMEI No.35997005299358 of the victim soni.
(ii) Samsung Duo (white) bearing IMEI
Nos.356894065434728/01 and Nos.
356895065434725/01 of accused Abhishek @ Vikas.
(iii) Asus (black & real) bearing IMEI Nos.352238065065302 and 352238065065310 of accused Avnish @ Kalu.
21. As per the prosecution case, the concerned mobile numbers, which were used by the concerned parties, are as follows:-
(i) Missing Girl Soni 9871554051 (Mami of Complainant Virender Kumar) and 8750981966 (One lady namely Smt. Manju W/o Shri Tilak Raj),
(ii) Abhishek @ Vikas 9810281216,
(iii) PW8 Virender Kumar @ Guddu 8527672697 and
(iv) Avnish @ Kalu 9899104128.
22. As per PW16, the owner of SIM Card of Mobile number 9871554051 is Deepak Singh S/o Baboo Singh and it is case of the prosecution that the said mobile phone was used by Kunti Devi, maternal aunt of missing girl Soni and FIR No. 294/2016 PS Krishna Nagar Page - 15 of 35 State Vs. Avnish @ Kalu etc the missing girl was using the said phone, however, there is no evidence on the record whether Deepak Singh, who is the registered owner of the said SIM Card, has allowed either Smt. Kunti Devi to use the said phone or that the said phone was used by missing girl Soni at any point of time.
23. As per CDR's of mobile no. 9899104128 i.e. date of 18.05.2016, when the report of missing girl Soni was lodged and it is alleged that she contacted accused Avnish on his said mobile, reveals that IMEI of mobile no. 9899104128 is 404119149015979. The said IMEI doesn't match with IMEI Nos.352238065065302 and 352238065065310 of accused Avnish @ Kalu.
24. Furthermore, as per PW22, Suresh Kumar S/o Nathu Lal R/o 415, Soboli Khadda Delhi is registered owner of SIM Card mobile no. 9899104128. The perusal of the record reveals that the investigation agency has neither made any inquiries from him nor nothing has been brought on record that how he is related with Avnish @ Kalu and as to when he has handed-over the said SIM Card of mobile number to Avnish @ Kalu. There is no evidence that the said mobile number was used by accused Avnish @ Kalu.
25. The registered owner of SIM Card of Mobile 9810281216 is Satyendra Kumar R/o House No.25, Saini Mohalla, Bijwasan, New Delhi and not Abhishek @ Vikas. It is the case of prosecution that Satyendra Kumar is Jeeja of accused Abhishek @ Vikas, however, it was the duty of the prosecution to record his statement under Section 161 FIR No. 294/2016 PS Krishna Nagar Page - 16 of 35 State Vs. Avnish @ Kalu etc Cr.P.C. regarding use of the said mobile phone by accused Abhishek @ Vikas, however, the same has not been done. As per CDR record of the said mobile number from 1st March 2016 to 28th May 2016, IMEI Nos.
404100138747092 and 356894065434720. The said IMEI Nos. do not match with IMEI Nos.356894065434728/01 and Nos.356895065434725/01.
26. As per the prosecution story, missing girl left the home after stealing the mobile phone with SIM Card number 8750981966 of landlady namely Manju but she was never cited as witness whereas, his husband was examined as PW5 and he deposed that police informed him that his mobile phone was lost and thereafter, he lodged NCR. It is very surprising that the mobile phone of the lady was lost but she was not aware about the same for two days i.e. from 18.05.2016 to 20.05.2016.
27. There is no evidence, which has been produced by the prosecution, which would connect the different users of mobile numbers, especially the accused persons with the missing girl and there is also record, which reflects that missing girl was in contact with either of the accused persons.
MOTIVE IN THE PRESENT CASE:
28. The Hon'ble Apex Court in the case of Surinder Pal Jain Vs. Delhi Administration10, observed in para no.11 that "11. There is no motive established in this case by the prosecution for the appellant to commit murder of his 101993 Supp (3) SCC 681 FIR No. 294/2016 PS Krishna Nagar Page - 17 of 35 State Vs. Avnish @ Kalu etc wife and the evidence of Tara Chand father of the deceased as well as the sister of the deceased and the tenants living in the same house disclosed that the relations between the husband and wife were cordial. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
29. A similar view was taken in para no.28 by the Hon'ble Supreme Court in Pannayar Vs. State of Tamil Nadu by Inspector of Police11, "28. It has also come in evidence of Subbiah that the accused was a known person to his family members. One wonders as to why would the accused whom the deceased knew would venture to rob her. Motive of robbery does not seem to be present in the present case. The absence of motive in a case which depended on circumstantial evidence is more favourable to the defence."
30. In Arjun Marik and Ors. Vs. State of Bihar 12, the Hon'ble Supreme Court explained in para no.10: "...mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But 11(2009) 9 SCC 152 121994 Supp (2) SCC 372 FIR No. 294/2016 PS Krishna Nagar Page - 18 of 35 State Vs. Avnish @ Kalu etc it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anyone else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused."
31. In Gosu Jayarami Reddy & Anr. Vs. State of Andhra Pradesh13, the Hon'ble Supreme Court in para no.19 held that "19. It is settled by a series of decisions of this Court that in cases based on eye witness account of the incident proof or absence of a motive is not of any significant consequence. If a motive is proved it may supports the prosecution version. But existence or otherwise of a motive plays a significant role in cases based on circumstantial evidence..."
In view of the aforesaid dictums and settled position of law, in the cases of circumstantial evidence, motive plays a significant role.
32. As per case of the prosecution, Avnish, in his disclosure statement, stated that his cousin brother Abhishek (co accused) was in a relationship with a girl Soni, both of whom were from Village Khagirpur, P.S. Phapoon, Dist.
13(2011) 11 SCC 766 FIR No. 294/2016 PS Krishna Nagar Page - 19 of 35 State Vs. Avnish @ Kalu etc Aurria, U.P. and for this reason, the family of the girl and elderly persons of village threatened Abhishek (co accused). Thereafter, co accused Abhishek came to Delhi and was living with his Jija at Brijwasan, Delhi. Abhishek informed his cousin brother Avnish that Soni was harassing him by calling him again and again and that he wants to get rid of her. As per prosecution, it was for this reason that the accused persons brought Soni at Tughlakabad Extn. and murdered. It is also case of the prosecution that PW8 Virender Kumar and Abhishek had some altercation with regard to girl Soni at their native village. It is also the case of prosecution that missing girl called PW8 Virender Kumar on 20.05.2016 and she has informed him that she had gone far away and PW8 Virender Kumar would not try to contact or find her.
33. Ld. Counsel for accused Avnish has assiduously argued that prosecution has not been able to lead any evidence with respect to the fact about the motive of the accused Avnish. It is submitted that motive, as being alleged, though, not proved, is also very weak as the accused Abhishek, if wanted to get rid of Soni, could have easily done so by changing his mobile number and therefore, avoiding any purported calls.
34. The prosecution has failed to investigate and record any statement of any villager to show that whether there was any altercation, which took-place between the accused Abhishek and PW8 Virender Kumar, brother of missing girl Soni. The prosecution has also failed to show any FIR No. 294/2016 PS Krishna Nagar Page - 20 of 35 State Vs. Avnish @ Kalu etc evidence that accused Abhishek was having intimacy with the missing girl Soni. PW8 has stated that on 18.05.2016 at about 3.50 p.m. when he reached his house, he found that his sister was missing and after making inquiries from the relatives, he was unable to find her. He further deposed that on 19.05.2016, he went to PP, Seelampur and briefed about the description of his sister and he further informed to the police officials that he is having a suspicion that some unknown person has enticed her, however, later, on 20.05.2016, he came to know from his relatives that missing girl was in contact with accused no.2 Abhishek through mobile phone 9871554051 of his mami namely Kunti Devi. There is nothing on record to suggest that Kunti Devi was residing with PW8 Virender Kumar and his sister Soni at any point of time. The statement of Kunti Devi is also not on record that Soni had used her mobile phone at any point of time. PW24 has stated that he did not remember the name of the maternal uncle, who was made witness in the present. Neither the maternal uncle nor the maternal aunt i.e. mami of missing girl Soni was cited as a witness in the present case. The prosecution has also failed to record any statement of the father of the missing girl.
35. The prosecution has utterly failed to prove by cogent, authentic and reliable evidence that what the motive, if any, which was with the accused persons to kill the missing girl Soni. The important and vital chain of link and event is totally missing in the present case.
FIR No. 294/2016 PS Krishna Nagar Page - 21 of 35 State Vs. Avnish @ Kalu etc LAST SEEN THEORY
36. In Prem Thakur Vs. State of Punjab14, the Hon'ble Supreme Court in para no.7 held that "7.The circumstances that the appellant was last seen in the company of the deceased can be accepted as proved but no inference can arise therefrom that the appellant had committed their murder. The appellant was working with the deceased and others and there was nothing unnatural in the appellant being in the company of his companions on the evening before the murders were committed."
37. The legal position of last seen is also explained by the Hon'ble Supreme Court in State of U.P. Vs. Satish15, in para no.22 as: "The last seen theory comes into play where the time-gap between the point of time when the 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..."
14(1982) 3 SCC 462 15(2005) 3 SCC 114 FIR No. 294/2016 PS Krishna Nagar Page - 22 of 35 State Vs. Avnish @ Kalu etc
38. In State of Karnataka Vs. Chand Basha 16, the Hon'ble Supreme Court in para no.14 explained: "14......This Court has time and again laid down the ingredients to be made out by the prosecution to prove the last seen together theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established..."
39. In Bodhraj @ Bodha and Ors. Vs. State of J&K 17, the Hon'ble Supreme Court in para no.31 held "31.The last seen theory comes into play where the time gap between the point of time when the accused and 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 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 accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases..."
40. As per prosecution, the accused Avnish took the missing 16(2016) 1 SCC 501 17(2002) 8 SCC 45 FIR No. 294/2016 PS Krishna Nagar Page - 23 of 35 State Vs. Avnish @ Kalu etc girl to the rented flat no.278, Gali No.5, Tughlakabad Extn., Delhi and she stayed till the date of murder i.e. 28.05.2016.
41. As per prosecution, there are two independent witnesses, who can, at best, be considered at last seen witnesses i.e. PW1 Ganesh Chand i.e. Landlord and PW2 Kesar Singh (Cab Driver). As per PW1, the accused Avnish @ Kalu was residing in the said tenanted premises with his wife for last about ten months from the month of June 2016, when the police came there. After being declared hostile, he was also cross-examined by ld. Addl. PP and during the same, the witness submitted that it is correct, on being enquired from another lady/girl who, was seen in the room of Kalu, she told that Kalu is his brother, however, he did not remember whether he had asked for Kalu about the said girl or Kalu told him that she had come there with his relative or not. He has also submitted that he has not received any complaint specially regarding with regard to any girl and further he used to visit daily in the said house no.287 to fill the water tank.
42. PW1 failed to identify the accused Abhishek. Accordingly, it cannot be inferred that Abhishek was the boy, who was seen by the PW1 in the room of accused Avnish @ Kalu. If, PW1 has seen another girl in the said room of Kalu, then, prosecution could have put photograph of the missing girl Soni to him to verify whether he has seen the said girl in the room of Kalu but the prosecution has failed to put the said question to him. If, the missing girl FIR No. 294/2016 PS Krishna Nagar Page - 24 of 35 State Vs. Avnish @ Kalu etc remained for about 10 days in room of Kalu, then, definitely, someone must have seen the girl and even the IO has not shown the photograph of the missing girl to PW during investigation.
43. As per prosecution, Avnish booked the cab and he along with accused Abhishek carried a gunny bag, which they threw at Ganda Nala. The PW2 Kesar Singh had failed to identify accused Abhishek. It has come on the record during his cross examination that he was kept in the police station for about 8 days.
44. PW2 has not seen the missing girl, thus, there is no witness, who entered into the witness box, has deposed that the missing girl was lastly seen with either of accused persons. The prosecution has utterly failed to prove this important chain of link also.
ABSENCE OF CORPUS DELICTI
45. In Indrajit Das Vs. State of Tripura, 18 Hon'ble Supreme Court in para no.16 has held that "16...The principle of corpus delicti has judgments on both sides stating that conviction can be recorded in the absence of the recovery of the corpus and the other view that no conviction could be recorded in the absence of recovery of the corpus. The later view is for the reason that if subsequently the corpus appears as alive, someone may have been convicted and sentenced and suffered incarceration for no crime committed by him..."
182023 SCC OnLine SC 201, FIR No. 294/2016 PS Krishna Nagar Page - 25 of 35 State Vs. Avnish @ Kalu etc
46. Hon'ble Supreme Court in Rishipal Vs. State of Uttarakhand19, considered the question of the effect of absence of corpus delicti. It was held that:-
"10. Coming next to the question whether the prosecution has brought home the charge of murder levelled against the appellant, we must at the outset point out that the case is entirely based on circumstantial evidence. No direct evidence has been adduced to prove that Abdul Mabood, whose corpus delicti has not been recovered, was done to death, nor any evidence adduced to show where and when the same was disposed of by the appellant assuming that he had committed the crime alleged against him. The legal position regarding production of corpus delicti is well settled by a long line of decisions of this Court. We may briefly refer to some of those cases.
11. In Rama Nand Vs. State of H.P.20 this Court summed up the legal position on the subject as: (SCC pp. 522-23, paras 27-
28) "27. ... In other words, we would take it that the corpus delicti i.e. the dead body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand, appellant? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused 'caused the death' of the person alleged to have been killed.
28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused.
Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. 'I would never convict', said Sir Mathew Hale, 'a person of murder or manslaughter unless the fact were proved to be done, or at least the 19(2013) 12 SCC 551 20(1981) 1 SCC 511 FIR No. 294/2016 PS Krishna Nagar Page - 26 of 35 State Vs. Avnish @ Kalu etc body was found dead'. This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old 'body' doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be 'proved', if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned."
To the same effect is the decision in Ram Chandra Vs. State of U.P.21 where this Court said: (AIR p.387, para 6) "6. ... It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or 21AIR 1957 SC 381 FIR No. 294/2016 PS Krishna Nagar Page - 27 of 35 State Vs. Avnish @ Kalu etc circumstantial, of the commission of the murder though the corpus delicti are not traceable."
12. Reference may also be made to State of Karnataka Vs. M.V. Mahesh22 where this Court observed: (SCC p. 354, para
3) "3. ... It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court."
13. In Lakshmi v. State of U.P.23 the legal position was reiterated thus: (SCC p. 205, para 16) "16. Undoubtedly, the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 IPC. This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death."
14. In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder. Failure of the prosecution to assemble such evidence will, however, result in failure of the most essential requirement in a case involving a charge of murder. That is precisely the position in the case at hand. There is no evidence either direct or circumstantial about Abdul Mabood having met a homicidal death. The charge of murder levelled against the appellant, therefore, rests on a rather tenuous ground of the two having been last seen together to which aspect we shall presently advert when we 22(2003) 3 SCC 353 23(2002) 7 SCC 198 FIR No. 294/2016 PS Krishna Nagar Page - 28 of 35 State Vs. Avnish @ Kalu etc examine whether the two being last seen together is proved as a circumstance and can support a charge of murder."
47. Like in the case before the Hon'ble Supreme Court, in the present case also, there is no evidence, direct or indirect, of Soni having met a homicidal death.
RECOVERY OF CHAPPAL/SLIPPERS, CLOTHES OF THE MISSING GIRL AND GAMCHA
48. The slippers/chappals were alleged to be at the instance of accused Avnish. Ld. Counsel for the accused has vehemently argued as under:-
(a) That slippers, allegedly belonging to the victim Soni and recovered from the house of accused Avnish, was planted by the police officials.
(b) As per PW18, the police had visited the room/house of the accused Avnish for the first time on 23.06.2016 and the room of the accused was searched on 24.06.2016.
(c) When as per the case of the prosecution, the accused had already disclosed vide his disclosure statement dated 23.06.2016, then, why the room was not searched on 23.06.2016 when the police visited for the first time, as the slippers were planted.
(d) The keys of the room of the accused Avnish were never seized and PW18 admits that no identification mark has been put on the slippers at the time they were seized and the same are easily available in the market.
FIR No. 294/2016 PS Krishna Nagar Page - 29 of 35 State Vs. Avnish @ Kalu etc
49. First of all, the said recovery of slippers was effected almost after one month of the missing girl Soni. The prosecution has, first of all, failed to prove by cogent and convincing evidence that the slippers were actually of missing girl Soni and she left the house after wearing the said slippers. However, the same is totally missing in the present case. Moreover, it is highly impossible and improbable that the murder would keep the slippers of the missing girl at a secluded place and instead thereof, he would disposed off the same with the body of the missing girl. Furthermore, it is admitted position that the slippers, which were recovered, are easily available in the market. The theory of recovery of the slippers, at the instance of accused Avnish, is totally doubtful in the facts and circumstances of the present case.
50. It is the case of the prosecution that Suit, Chunni and Gamchha were recovered from the house of 'F' @ 'G' @ 'G', girlfriend of accused Avnish. PW1, who is witness to the seizure memo, has not only denied the recovery of the said articles but also visiting the house of the said 'F' @ 'G' @ 'G'. Ld. counsel for accused persons has argued that:
(a) PW8 Virendra, during cross-examination, also stated that he had not disclosed the fact about his sister leaving the house wearing yellow colour suit, however, surprisingly, complaint dated 19.05.2016 mentions that missing girl Soni left the house wearing yellow colour suit, which clearly means FIR No. 294/2016 PS Krishna Nagar Page - 30 of 35 State Vs. Avnish @ Kalu etc that complaint is ante-dated and fabricated by the police with sole intention of impleading the accused Avnish.
(b) There are contradictions in the testimony of PW7 and PW8 and PW8 stated in his deposition that "...I cannot say how many pair of clothes my sister have.
I came to now the fact at the time when my sister left from our house, was wearing the yellow colour suit from many tenant as well as landlord of house but I cannot tell their names who informed me about the same. I did not disclose the said fact to the police in my statement....." Whereas PW7 HC Nand Kishore deposed that..... "At said house, IO conducted the inquiry from neighbours, family members of missing girl and also collected the photograph of missing girl from them and recorded statement of landlord only in my presence, whose name I do not remember. None of the neighbours admitted to have seen the girl going out of the house...."
(c) As per PW18, he visited the house of PW1 Ganesh Chand (landlord of accused Avnish) first time on 23.06.2016, therefore, it clearly showcases that he had visited the premises on 23.06.2016 to plant incriminating material. No identification mark has been put on the suit, chunni and dupatta at the time they were seized and that the same are easily available in the market.
FIR No. 294/2016 PS Krishna Nagar Page - 31 of 35 State Vs. Avnish @ Kalu etc
(d) As per prosecution, when those articles were recovered, the mother of 'F' @ 'G' @ 'G' was also present in the house but she was neither interrogated nor she was cited as witness in the present case.
(e) There is no corroborative evidence with respect to the description of recovered clothes and it can be presumed that the said clothes were planted to falsely implicate the accused persons.
51. It is very surprising that after committing the murder, the culprits would take out the clothes of missing girl and keep them in the house of 'F' @ 'G' @ 'G' so that it can be recovered after one month from missing of the girl. Moreover, the complainant was also not sure that what was the colour of the clothes, which were worn by the missing girl as the same was disclosed by the neighbourers, however, the said neighbourers were not even examined by IO. On the contrary, PW7 has categorically deposed that none of the neighbours admitted to have seen the girl going out of the house. The theory of recovery of the clothes and gamcha at the instance of accused Avnish are also totally doubtful in the facts and circumstances of the present case.
ANALYSIS OF FORENSIC EVIDENCE
52. The FSL team of Rohini, Delhi searched the room of the accused Avnish on 30.09.2016, as per Ex.PW13/A. Accordingly, the said room was searched after more than one month of missing girl Soni. As per prosecution, the accused Avnish was arrested on or about 23.06.2016 and FIR No. 294/2016 PS Krishna Nagar Page - 32 of 35 State Vs. Avnish @ Kalu etc as per PW1, the accused Avnish @ Kalu was residing in the said tenanted premises with his wife for the last about ten months from the month of June 2016, when the police came there. The reference to the wife in the deposition is the juvenile 'F' @ 'G' @ 'G', so, as per PW1, there is presence of female in the rented house of Avnish. As per report dated 28.08.2017 (Exhibit PW 20/1) of Biological Department, FSL, Rohini, the DNA was only extracted from Exhibit "4", which is one jeans having dirty light brown stains and as per the results of said report, Female DNA profile was generated from the source Exhibit "4". However, the said DNA profile was not matched with the DNA of either of the complainant Virender Kumar i.e. brother of the missing girl or even father of the missing girl, so that it could lend some evidence about missing girl. Furthermore, the said DNA profile was also required to be matched with 'F' @ 'G' @ 'G' as she was residing with Avnish in the said rented accommodation. As discussed above, there was presence of female 'F' @ 'G' @ 'G' in house of accused Avnish @ Kalu and it cannot be ruled out that the presence of female DNA from the jeans was of 'F' @ 'G' @ 'G' as she was living with accused Avnish @ Kalu as her wife. Therefore, this evidence is of no help to the prosecution.
53. It is argued by ld. counsel for accused Abhishek that the investigation agency had never made any attempt to gather any medical evidence as PW24 has admitted that "...no efforts were made to lift any chance print from the FIR No. 294/2016 PS Krishna Nagar Page - 33 of 35 State Vs. Avnish @ Kalu etc gamcha. Voltd. No chance prints can be detected from clothes. The clothes and gamcha were not sent to FSL...". It is also argued that if the gamcha was used in strangulating the missing girl, then, tissues of her neck could have been found in the said Gamcha but the investigation agency has not made any effort to send the same to FSL and it is the experts of FSL, who could have opined whether DNA could have been extracted from the said Gamcha or not and the investigation agency was not competent to answer the same.
54. This Court is of the considered view that even forensic evidence is totally lacking in the present case, which would remotely suggest that the missing girl is no more and she was in the room on the accused Avnish @ Kalu. CONCLUSIONS OF THE COURT
55. It is well established that in case, murder is not proved, other offences i.e. of kidnapping/abduction or for the offence punishable under Sec. 201 IPC may be proved but it is to be kept in mind that evidence to that effect be brought on record but the said evidence is also totally missing.
56. In view of the evidence brought on record, as discussed above, on the said issues also, is clear to the effect that prosecution has failed to prove its case beyond reasonable doubts as chain is not well knitted and miserably broken down in the present case.
57. The case of the prosecution is shrouded with doubts and proves that prosecution case is built on sand. It is well FIR No. 294/2016 PS Krishna Nagar Page - 34 of 35 State Vs. Avnish @ Kalu etc settled law that if two views are possible, benefit of doubt must be given to the accused. However, in the present case, the prosecution has miserably failed to prove any ingredients against either of the accused persons.
58. With the above observations, this Court is of the view that prosecution has failed to prove its case against these accused persons and as such, accused persons namely Avnish @ Kalu and Abhishek @ Vikas are hereby acquitted for all the charges levelled against them.
Case property, if any, be confiscated to the State after expiry of period of appeal/revision, if any. File be consigned to Record Room after due compliance. Announced in the open court on this 28th Day of March, 2023.
(ARUN SUKHIJA) Addl. Sessions Judge-03 (East) Karkardooma Courts: Delhi FIR No. 294/2016 PS Krishna Nagar Page - 35 of 35