Delhi District Court
State vs . 1. Subhash Singh on 11 January, 2011
Page No. 1
IN THE COURT OF SHRI J.R.ARYAN
ADDITIONAL SESSIONS JUDGE01/NEW DELHI
PATIALA HOUSE COURT
SESISONS CASE NO. 029/2005
Date of Institution : 04/05/2005
Arguments heard : 03/01/2011
Date of Judgment : 10/01/2011
State Vs. 1. Subhash Singh
S/o Sh. Shyam Bihari Singh
R/o C11, Chirag Delhi, New Delhi17.
And Permanent resident of :
Village : Matieur, PO : Mohdi Nagar,
Distt. Samastipur, Bihar.
2. Ranjit Kumar Singh
S/o Sh. G. S. Singh
T294 A/1, Chirag Delhi, New Delhi17.
FIR No. 015/05
Police Station Malviya Nagar
Under Section 302 / 120B / 34 IPC
J U D G M E N T :
Accused Ranjit Kumar and accused Subhash Singh were charge sheeted in this case u/s. 302 / 120B / 34 IPC and on committal of this case to the Sessions Court by Ld. MM , a prima facie case to try these two Page No. 2 accused persons for said offences was made out and accordingly charge was framed. The charge is that on 4.1.2005 these two accused persons along with co accused accomplices Ajit, Shiv Kumar, Bablu and Bhushan ( who were reported to be absconding ) entered into a criminal conspiracy to commit murder of Uma Shankar and pursuant to that criminal conspiracy these accused persons with absconding co accused committed murder of victim - deceased Uma Shankar on the intervening night of 5th 6th of January 2005 in the area of PS Malviya Nagar and place of murder was a road side in between house no. C1 Swami Nagar and tikona park and accordingly committed offences punishable u/s. 120B and u/s. 302 R/W 120 IPC. Both accused claimed trial by pleading not guilty.
Facts wherein the case came to be registered and finally accused were charge sheeted are " Inspector V. P. Singh SHO in police station Malviya Nagar on receiving an information from PCR that dead body of human being was lying on the road near C1, Swami Nagar, Inspector reached the spot. Police post Incharge, SI Dharam Pal along with HC Zile Singh were present there already. Dead body was found lying and more than half of the neck of the victim was bearing cut injury marks and there was a clutch wire around the neck and there was a lot of blood around the body. At a distance of around 11 yards a knife (churi) stained with blood was there lying. A Constable Moti Lal from DAP 8th Battalion, Pitampura, Delhi was present and he gave a statement which was recorded as Ex. PW12/A. This police constable Moti Lal was on a PSO duty with a journalist Tarun Tejpal R/o C1 Swami Nagar, and on 6.1.2005 at around 7.20 AM while this informant Page No. 3 Ct. Moti Lal was going to join his duty and as he reached Chirag Delhi ganda nala near park he saw dead body of a boy lying on road side and the victim appeared to be 35 years of age and neck of the victim found bearing a cut injury of more than half of the neck and there was a lot of blood. A clutch wire was found around the neck. Clothes available on the body comprised a black colour pant, light brown tshirt and green colour sweater with a pair of black colour shoes. Ct. Moti Lal had then called PCR. A weapon knife / churi smeared with blood was also lying in garbage at some distance. On this statement Inspector V. P. Singh recorded rukka Ex. Pw 16/A and FIR is Ex. PW11/A was recorded at PS Malviya Nagar at 10 AM on 06.01.2005. File record further reveals that copy of FIR was got received to Illaqa Magistrate through special messenger at his residence at 7 PM.
As recorded in the charge sheet body of the victim came to be identified by PW1 Shri Bhupendra Bhatnagar was who owning a security agency called 'M.B.Security and House Keeping' Bhupendra Bhatnagar identified the body on the spot and his statement was recorded to the effect that victim deceased Shri Uma Shankar Singh S/o Binda Singh R/o Village Haider Pur, Bihar, who was employed as a guard in his private agency about four months before. On 5.1.2005 victim deceased was in his guard duty from 6 PM to 10 AM at Agarwal Tower, Pitampura, Delhi. Further investigation proceedings like seizure of bloodstained knife found lying on the spot, lifting of bloodstained and earth control sample, examination of the scene of crime by crime team which included recording of the photographs of the site, preparation of the site plan were completed. Dead Page No. 4 body was got removed to mortuary, AIIMS which was then subjected to postmortem on 7.1.2005. Numbers of injuries found on the body which were recorded in the postmortem report which is Ex.PW. PW13/A. Cause of death was opined as hemorrhagic shock and asphyxia consequent to cut throat injuries and strangulation injury no. 3 which was sufficient to cause death in ordinary course of nature, individually or as well collectively. It was further opined that injuries 1 and 2 could be produced by sharp edged weapon and strangulation caused by ligature.
During investigation one Balram Shah examined in this trial as PW 14 gave a statement to the investigating officer that he was employed with M.B. Security and on 5.1.2005 he was on a guard duty in the down side of Agarwal Tower. Deceased victim Uma Shankar was on guard duty on upper side in the tower. At around 12 in the mid night one Subhash whom witness knew very well and who (Subhash) was the nephew of the deceased Uma Shankar arrived and asked witness about Uma Shankar. On his request, witness called Uma Shankar from upstairs. Subhash had a talk with Uma Shankar for a while and then both Uma Shankar and Subhash left together in a TSR which was already parked at some distance. Thus according to prosecution case statement of this witness was a circumstance of deceased last seen with Subhash and then in the morning dead body of the victim Uma Shankar was noticed in Swami Nagar, police statoin Malviya Nagar area.
Charge sheet further reveals that search of accused persons was Page No. 5 started and in that process accused Ranjit Singh was apprehended from near sochalaya (public utility) in jagdamba camp. Accused Ranjit confessed having committed the crime when he was interrogated. An injury was noticed in his left hand and accused confessed that he had received that injury when this accused and his associates Ajit, Babloo, Shiv Kumar, Subhash and Bhushan were strangulating Uma Shanker with the help of clutch wire. Confession given by accused Ranjit also revealed a motive for this crime which was an enmity ( admittedly during trial no evidence has been examined to prove this motive and nor any witness was recorded concerning this motive during investigation). Accused Ranjit stated in the confession that as per their plan this accused with his brother Ajit and associates Babloo, Shiv Kumar and Bhushan who was the TSR driver had picked up victim from Pitam Pura, Delhi in TSR, gave him liquor to drink and he was brought to Swami Nagar area and was murdered near tikona park.
Accused Ranjit Singh was arrested. Pursuant to his disclosure accused Ranjit was alleged to have got recovered a knife from sochalaya and that knife was stated to have been used in the commission of this murder. On 9.1.2005 accused was got examined at AIIMS regarding injury which had been found on his left hand and clutch wire seized in this case was produced before the doctor for his opinion if injury was possible by that clutch wire and the doctor opined that injury found on the left hand back side of palm of the accused was possible by that metallic clutch wire and duration of the injury was opined 3 days old.
Page No. 6
2nd accused Subhash Surrendered in the court of 24.1.2005 and he was arrested. He also confessed to have committed this murder along with his co accused persons.
Charge sheet further alleges that co accused persons namely Ajit, Babloo, Shiv Kumar and Bhushan were absconding and arrest warrants had been obtained against them and they were being kept in column no. 2 and would be prosecuted through supplementary charge sheet ( it is a matter of record that till date no supplementary charge sheet was filed against any of these co accused persons). The exhibits seized and collected in this case were got examined from FSL and a report Ex. PW16/X was collected and produced as a piece of evidence. With this incriminating evidence and material collected by the IO Inspector V. P. Singh with these two accused persons Ranjit and Subhash were charge sheeted u/s. 302 / 120B / 34 IPC. On the committal of the case and finding a prima facie case for offence u/s. 120B and u/s. 302/120B IPC made out that charge was framed. Since both accused claimed trial, examination of the prosecution evidence began.
Prosecution has examined in all 16 witnesses as per its list of witnesses filed with the charge sheet, a brief count of these witnesses / evidence is given below :
PW1 is the employer of the deceased. According to this witness deceased Uma Shankar was employed as a guard about four months ago and on the date of incident i.e. on 6.1.2005 he was on duty as a guard in the office premises of this witness i.e., M. B. Security. Witness further deposed that at around 4 - 5 AM of the intervening night of 5th / 6th of January 2005 Page No. 7 witness received a telephone call from the guard of the building that one Subhash relative of Uma Shankar had come to the office and had taken deceased with him and since then Uma Shankar had not returned back. At around 7.30 am, witness then received a telephone call from PS Malviya Nagar and he reached the place where he found dead body of Uma Shankar lying near ganda nala, Chirag Delhi, New Delhi. Witness was confronted with his previous 161 CrPC statement if any such call was received by the witness at round 45 AM that deceased had been taken away by one Subhash relative of the deceased. This testimony of witness thus was by way of an improvement . Meaning thereby till the witness reached the spot where dead body of the victim was seen by him, he did not have any other kind of information concerning deceased.
PW2 had taken copy of FIR as a special messenger to Ld. MM and other senior police officers. Though the FIR had been recorded at 10 AM and may be it was a working day being Thursday but still the FIR available on the judicial file has received by the Ld. MM is shown to have been received at 7 PM at his residence.
PW3 is the police officer who prepared site plan on the scale. PW4 is a part of the crime team who had recorded photographs of the scene of the crime and proved those photographs. PW5 is again part of the crime team who tried to lift chance finger print from the spot but no chance prints could be lifted.
PW6 HC Zile Singh, PW8 SI Dharam Pal, PW15 SI Nirbhay Singh and PW16 IOACP V. P. Singh are the witnesses who had reached Page No. 8 the spot where dead body had been noticed. Besides dead body a bloodstained knife was found lying at some distance which was seized. PW6 and PW8 are the witnesses confined to this fact whereas PW15 and PW16 have further deposed facts as came out during further investigation concerning both accused persons. Testimony of these two witnesses shall be taken up later on when the concerned incriminating evidence deposed by them against accused is analyzed.
PW7 a Constable had collected some parcels from mortuary AIIMS where body of the victim had been subjected to postmortem and those pulands were handed over by him to Inspector V. P. Singh.
PW9 is a doctor from AIIMS before whom accused Ranjit after having been arrested on 7.1.2005 had been produced for his medical examination. An injury had been found on the left hand back side of the palm of the accused and according to confession given by accused that injury happened to come on his hand when he had pulled the clutch wire around the neck of the deceased while committing murder of the victim along with other co accused persons. Doctor deposed in evidence that accused Ranjit Singh was produced for his medical examination and doctor found a liner abrasion radish brown colour of the size 3.5 x 0.7 cm measuring 6 cm from ulna and left (L) and side of the dorsal aspect of the back hand in the middle half. ( 2 ) An abrasion radish brown colour of the size 0.7 x 0.5 on the dorsal aspect of the left hand in the latter aspect, measuring 2.5 cm above and later on from the proximal nature interphalangeal joint and left ring finger in the space between thumb and Page No. 9 left ring finger.
Doctor further opined that injuries were possible by mettalic clutch wire which had been produced before him. Age of the injury were opined as 3 days old.
The clutch wire had been produced before the doctor as recorded in the MLC , in a glass jar bearing label of PM no. 28/05 dt. 7.1.2005 and bearing signature of the doctor. Prosecution seek to use this incriminating circumstance of injury on the left hand of the accused Ranjeet as having occurred while committing murder of deceased Uma Shankar when clutch wire was pulled. Clutch wire had been found tied around neck of the deceased.
PW10 is a witness who had taken clutch wire in question to doctor Pw9 at AIIMS at 9.1.2005 after taking it from MHC(M) in a sealed pulanda. PW11 had recorded the FIR and proved its copy as Ex. PW 11/K. PW12 is constable Moti Lal who had given the first information to the police when he had noticed dead body of the victim in this case lying near tikona park, Swami Nagar, Chirag Delhi, New Delhi, and had also noticed a clutch wire wrapped around the neck of the victim.
PW13 is a doctor who had conducted postmortem on the body of the deceased on 7.1.2005. Clothes on the person of the deceased were seized. One mattalic wire of a diameter .4 and .5 cm with running simple knot was found around the neck of the victim over thriod cartilage. Doctor then recorded injury as found on the person of the deceased which included Page No. 10 a strangulation mark described as brown parchment like strangulation and about .6cm wide and also a cut throat measuring 3 x 1 cm. Time since death was opined one and a half day and cause of death was a hemorrhagic shock and asphyxia consequent to cut throat injury no. 1 & 2 and strangulation.
PW14 is a material witness who according to prosecution case was on a guard duty at Millennium Park Complex, Pitampura, Delhi on the date of the incident while employed with M. B. Security. According to prosecution case accused Subhash arrived on the place of duty of this witness and took away deceased Uma Shankar saying that he was related to and known to the deceased.
Witness deposed that he was on duty from 8 PM till next morning 8 AM. At around 12.15 or 12.30 mid night a person by the name of Subhash came to this witness. He was unable to identify if that Subhash was one of two accused persons in the present case, present in court. He further deposed that Subhash was having a mufflar around his cheeks and neck and was a thin and lean body boy with a long face and he asked for Uma Shankar. Witness then called Uma Shankar from the 7th floor of the complex where Uma Shankar was on duty. As Uma Shankar came from the 7th floor of the complex where Uma Shankar was on duty. As Uma Shankar came from the 7th floor on being informed that his nephew Subhash was there to see him, Uma Shankar and Subhash exchanged words of their well being and then both Uma Shankar and Subhash went towards a vehicle which was parked nearby and was a three wheeler tempo kind. Page No. 11 Both of them left the complex in that vehicle. Witness further deposed that Uma Shankar did not return to his duty till next morning 8 am and later on witness came to know that Uma Shankar had been killed. Witness stated that he did not know prior to this incident if Subhash was related to Uma Shankar and he had never seen Subhash prior to this incident.
This deposition of the witness was contrary to statement of the witness recorded by the police during investigation as according to that statement witness was acquainted with Subhash as relative of Uma Shankar and that it was accused Subhash duly identified by the witness who had taken deceased away on that night of the incident. Accordingly witness was cross examined by Ld. Addl. PP but then witness refuted all these facts as had been recorded in his 161 CrPC Statement and he was confronted with that statement.
PW15 and PW16 are the witnesses basically concerned with accused Ranjeet Singh. Both the witnesses deposed that while they set out in search of accused , they reached Jagdamba Camp, public utility (sochalaya) car and inquired about the owner / director of that public utility . It is deposed by both the witnesses that accused Ranjit Singh was found present there who was interrogated and accused is alleged to have confessed accordingly. These witnesses observed an injury mark on the left hand back side of his palm between thumb and index finger and since accused could not provide any satisfactory reply / explanation about that injury, it was suspected to be one which could have occurred while pulling clutch wire in the commission of the murder of the deceased. Pursuant to Page No. 12 disclosure accused Ranjit was alleged to have got recovered a bloodstained knife from that sochalya premises. His confession / disclosure recorded by PW16 was proved and identified as Ex. PW15/C. Sketch of the recovered knife has been proved as Ex. PW15/D and its seizure memo is Ex. PW015/E. This knife was taken into a pulanda and seal VPS was affixed. As per confession / disclosure of this accused, he claimed to get recovered clothes which he was wearing at the time of this incident and which had got bloodstains and pursuant to that disclosure accused took the police party to his house T294/A1 and got recovered those clothes comprising full sleep sweater, a cream colour pant and a cream colour t shirt which were wearing bloodstain marks. All these articles were seized.
This is in all the prosecution has brought in evidence against accused persons. When examined to explained this incriminating evidence against them, accused Ranjit came out with a plea of denial of his involvement in any manner in this incident and denied to have got recovered any such incriminating articles pursuant to his disclosure. Similarly accused Subhash also denied to have reached Millennium Complex, Pitam Pura on the night of the incident or took away victim Uma Shankar from that spot. No defence evidence was examined.
Ld. counsel Mr. Ajay Burman defending accused Ranjit argued that th prosecution seeks to prove its charge by incriminating circumstances but has failed to prove those circumstances and the circumstances cannot be said to form a complete chain where from the conclusive inference of the guilt of accused could be drawn. Counsel submitted that no motive has been Page No. 13 proved. Knife when recovered at his instance has not been witnessed by any independent public witness and no reason or explanation has been offered by PW15 and PW16 as to why they could not join any independent witnesses. He further submitted that recovery of knife from a sochalaya(public utility) premises has to be taken and treated as recovery from an open place and unless witness specifically deposed that recovery could be imputed to any exclusively knowledge of the accused, such a recovery could not be taken to be discovery of fact pursuant to the disclosure given by accused and thus admissible u/s. 27 of the Evidence Act. Moreover the knife when examined at FSL, though stains on its blade were reported to be a human blood but then its ABO group could not be determined and in the absence of group of the blood determined it could not be found connected with the murder of the victim in this case. Counsel argued that even otherwise as a probability factor accused would not keep knife in his custody to get it recovered. He would have destroyed it or thrown it in a place where it would not have been possible to recover it. Counsel submitted that arrest of accused Ranjit was even without any clue to the police regarding his involvement and it is entirely a guess work that IO reached sochalaya(public utility) site while in search of accused persons and found accused Ranjit available.
Another incriminating circumstance regarding injury on the left hand back side of the palm which has been opined by PW9 doctor to have been caused by pulling of the clutch wire, counsel submitted that cross examination of Doctor on this point leaves enough to affirmatively hold that Page No. 14 injury occurred at around the time when incident of this case took place. Counsel submitted that when this important aspect of the case did not come to light when this accused was arrested and it is only on the next date i.e., 8.1.2005 that this injury was observed on the person of accused as has been recorded in the application Ex. PW16/H, the possibility of such a evidence created by the police could not be ruled out and this circumstance could not be said to have been conclusively proved by satisfactory evidence. Ld. Counsel then argued that even otherwise this sole circumstance could not be taken to be a circumstance strong enough to hold the charge proved in the absence of any other incriminating evidence and circumstance.
Ld. counsel relied upon a Hon'ble Supreme Court judgment 1989 SCC 649 on the point that where bloodstained knife was got recovered by accused and the prosecution failed to show that bloodstains on the knife were on the same group as that of the blood of the deceased, the weapon could not be held to be connected with the crime. On the same proposition Ld. Counsel relied upon 1991 SCC 538. Finally Ld. counsel pointed out that the clothes got recovered by accused from his house when examined at FSL no blood marks or stains was found on those clothes and thus it does not connect accused with the crime.
Counsel Shri Sanjay Bhargava appearing for accused Subhash submitted that when PW14 failed to identify accused Subhash as the person who came to the place where witness was on duty and took away victim deceased along with him then mere evidence that one Subhash Page No. 15 arrived may not be found enough to hold identity of accused Subhash established. Counsel pointed out that it being a winter night, witness has specifically deposed that the boy Subhash was having his face i.e. cheeks and neck covered by a mufflar and thus it would not have been possible for the witness to identify that boy. In a fairness prosecution ought to have got accused Subhash identified in a Test Identification Parade. But then when witness has failed to identify accused then there is no other incriminating circumstance against him. Merely that accused Subhash surrendered before court in this case, it may not be taken to be a incriminating circumstance against him. Ld. counsel relied upon Hon'ble Delhi High Court 's judgment in a case Rampal v The State criminal appeal no. 18/2010 decided on 13.05.2010 where the law on the proposition as to how and when the prosecution charge is to be held and found proved when entirely based upon circumstantial evidence and for that proposition a Supreme Court Judgment in a case Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has been relied in this judgment. Counsel submitted that prosecution cannot be said to have proved charge against accused Subhash by a acceptable incriminating evidence.
Ld. Addl.PP, on the other hand argued that name of accused Subhash had figured at the earliest in the statement of witness Balram and may be witness Balram was later on won over by accused and that is how he failed to identify him. There was no reason to not to accept the testimony of PW 14 that it was a boy by the name of Subhash who took away deceased and it is accused Subhash who later on surrendered in the court which must Page No. 16 suggest his guilty conscious. If deceased was taken away somewhere in the mid of night and if dead body of the deceased was noticed in the next morning then in the absence of accused offering any explanation as to how deceased was killed, a strong and conclusive inference be drawn that it were accused who committed this murder. I have appreciated these contentions.
Prosecution seeks to prove charge on circumstantial evidence. Incriminating circumstance sought to be established from the evidence are :
1. That deceased was taken away from the place of his duty at Pitampura, Delhi in the mid night of the intervening night of 5th / 6th of January 2005 by accused Subhash ;
2. There was a vehicle parked nearby the place where from deceased was taken by accused Subhash and Subhash and deceased left that spot in that vehicle ;
3. Dead body of the deceased was then found lying in Chirag Dehli area within the jurisdiction of PS Malviya Nagar in the morning hours ;
4. A clutch wire was found wrapped around the neck of the deceased which appeared to have been used in strangulating the deceased ;
5. Accused Ranjit when apprehended on 7.1.2005 at around 4 or 4.30 PM, an abrasion injury was noticed on the back of the palm of his left hand in between the thumb and the index finger and medical opinion suggested that injury was possible by pulling a metallic clutch wire and there was absence of any explanation by accused persons about these incriminating circumstances against them. Ld. Addl. PP submitted that all these Page No. 17 incriminating circumstances can be said to have been duly proved and these circumstances can be held to form a complete chain where from a conclusive inference of guilt of accused can be drawn.
The first incriminating circumstance is that deceased was taken away by accused Subhash from the place of his work in the mid night . PW14 a colleague guard of deceased though deposed that a person by the name Subhash came to this witness asking about deceased Uma Shankar but then witness deposed that he was unable to identify accused Subhash of the present case as the same person who came to him as Subhash and took away the victim - deceased. Witness deposed that he was unable to identify Subhash accused of this case because a long time had intervened ( this witness has been examined in April 2009) and the time of incident being a winter night, that person Subhash was having a mufflar around his cheeks and neck. In absence of witness specifically identifying accused Subhash in this case, it is difficult to hold identity of accused Subhash established from this testimony. Merely the person introduced himself as Subhash to the witness may not be enough to hold that it was accused Subhash in this case who reached that spot and took the deceased away with him. Prosecution rather introduced this witness Balram as if he already knew and had acquaintance with Subhash and that Subhash was related to the deceased. In this way prosecution did not consider necessary to get accused Subhash identified in a Test Identification Parade from this witness after his arrest in this case. No such fact has been deposed by this witness PW14 Balram that he had already known person Subhash who had arrived on the date of Page No. 18 incident to take deceased away. Accordingly from evidence of PW14 it cannot be held duly proved and established that it was accused Subhash in this case who did come to this witness and took away deceased on the intervening night of 5th / 6th of January 2005. Merely that this accused Subhash later on surrendered in court that may not be taken as proving his identity and establishing his identity as Subhash in this incident of 5th / 6th intervening night of January 2005 . Prosecution ought to have been fair that where person Subhash was not known to PW14 prior to this 5.1.2005 incident then he could have been got identified in a Test Identification Parade and later on to get corroboration when witness identified Subhash. Such an important witness ought to have been examined at the earliest instead of getting him examined after more than 4 years.
Incriminating evidence against accused Ranjit are recovery of bloodstained knife pursuant to his disclosure Ex. PW15/C from the sochalaya premises and then an abrasion injury noticed on the left hand which was found relatable to a mattalic clutch wire pulling injury and duration of injury as opined by the doctor coincided with the incident of murder of deceased. Recovery of knife bearing bloodstains may not connect accused with this incident of murder since the group of the blood could not be determined as per the FSL report Ex. PW16/X. In this regard, Ld. defence counsel had relied upon certain judgments of Hon'ble Supreme Court and those judgments provide supports to that contention of Ld. defence counsel. Moreover recovery of knife is not free from doubt or strictly admissible under section 27 of the Evidence Act. PW16 IO has Page No. 19 deposed on this aspect that on 7.1.2005 accused Ranjeet Kumar was apprehended from jagdamba camp. On being interrogated he confessed his guilt and disclosed that he can get the weapon knife recovered. Accused took the police party to jagdamba camp public utility centre and picked up a knife which was found kept above a mirror in a room adjoining public utility. PW15 SI Nirbhay Singh has deposed that accused Ranjit leading police party went to public utility and picked up a bloodstained knife kept over a grass frame and thus that weapon knife was recovered. Two witnesses have deposed a different place / location of this recovery. Defence counsel had a valid argument that place of recovery being a open accessible to all recovery could not be imputed to accused unless it was duly prove to be a hide out exclusively within the notice and knowledge of accused. Admittedly no independent public witness had been joined in this recovery. Accordingly recovery of this knife fails to connect accused Ranjit with this crime.
Then comes the injury noticed on the left hand back side of the palm of accused Ranjit. Defence counsel pointed to the evidence of the IO where in cross examination IO admits that the said injury had not been noted either in the arrest memo of the accused and nor did it come in the confessional statement of the accused. Counsel pointed out that testimony of the IO as well SI Nirbhay that they noticed injury on the person of accused at the time of his arrest becomes doubtful when this important incriminating fact did not find mention in any contemporaneous document prepared at the time of the arrest of accused. Prosecution further Page No. 20 pressed upon the medical opinion as recorded in MLC Ex. PW9/B where doctor opined that injury was about 3 days old and it coincided with the time of the murder of the deceased . Doctor further opined that injury was possible with a mattalic clutch wire. Defence counsel pointed out that doctor who recorded this MLC has not mentioned the surface pattern of the clutch wire produced before him. Counsel argued that the doctor who had conducted the postmortem and had recorded the nature and dimension of injury on the neck alleged to have been caused by clutch wire strangulation should have been the best witness to observe and opine injury found on the person of accused Ranjeet on his hand. I have appreciated these arguments and contentions.
PW9 who examined this injury on the person of accused Ranjeet Kumar has deposed in cross examination that colour of an abrasion injury as radish may persist from few house upto 20 hours and colour then may change to radish brown and then to brown and then to dark brown. He further admitted that colour brown may turn in three to 4 days. Number of three days for a abrasion injury may remain radish brown. Ld. counsel argued that such an opinion may not fix the exact number of the injury and prosecution again be said succeeding in proving its charge from this sole circumstance.
Admittedly this injury on the left hand of Ranjeet Kumar had not been observed and mentioned in any of the documents prepared at the time of his arrest. It is only next day that accused was produced in hospital AIIMS for the examination of this injury. As per request letter of IO Ex. Page No. 21 PW16/H. Observations recorded in MLC by the doctor that injury was radish brown colour may rule out the possibility of such an injury created and inflicted by the police after 7.1.2005 when doctor has opined that radish brown colour of the injury may occur after three days but then can this circumstance be held proving the charge against accused Ranjit. Doctor's opinion that abrasion injury may remain radish brown during 3 days or may also become brown within that period and doctor further admiting that colour of such injury may turn brown in 3 to four days leaves a scope to find a reasonable doubt in the prosecution story that injury found on the person of Ranjeet Singh in this case did coincide exactly the time of the murder of the victim. It is difficult to take this solitary circumstance of injury on the person of Ranjeet as the conclusive incriminating circumstance to find the murder charge proved. Healing of an abrasion wound and consequently change in colour of such wound will certainly depend upon many factors like the built and physique of a person, his internal healing body mechanic ism and the observation of the doctor that abrasion injury was a radish brown may not be found conclusively establishing that injury coincides with the timings of the murder of the victim. Certainly such a circumstance could have been taken into consideration as a supporting circumstance had there been other incriminating circumstances proved against accused Ranjit Kumar. There is no other incriminating circumstance proved by the prosecution against accused Ranjit. The wearing clothes got recovered by accused allegedly bearing bloodstains marks when got examined at FSL were reported non Page No. 22 bearing of any human bloodstains. Except the confession before police which is inadmissible in evidence against accused there is no other incriminating evidence against Ranjeet Kumar. IO admits in his cross examination that till he apprehended accused Ranjeet Kumar from Jagdamba Camp area no incriminating evidence had been collected against him. On what basis he apprehended accused Ranjeet Kumar has not at all been deposed by the IO.
Prosecution accordingly fails to prove the above said incriminating circumstances against accused persons. The solitary circumstance of injury on the left hand of the accused Ranjeet Kumar even otherwise also cannot be held sufficient in proving his involvement in the murder of the deceased. Identity of accused Subhash has not been established. Prosecution fails in proving and establishing its charge against both the accused. Both the accused are thereby entitled to be acquitted of the charge. File be consigned to record room.
Announced in the Open (J. R. ARYAN)
court on 11/01/2011. ADDITIONAL SESSIONS JUDGE
NEW DELHI.