Delhi District Court
State vs . (1) Sunil on 10 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 1034/09
Unique Case ID No.: 02401R0830922005
State Vs. (1) Sunil
S/o Dayanand
R/o Village Kanjhawla,
Delhi
(Acquitted)
(2) Sandeep
S/o Ram Chander
R/o Village Kanjhawla,
Delhi
(Acquitted)
FIR No. 154/05
Police Station: Kanjhawla
Under Section: 302/34 Indian Penal Code
Date of committal to sessions Court: 23.9.2005
Date on which orders were reserved: 21.3.2012
Date on which judgment announced: 10.4.2012
JUDGMENT:
(1) As per allegations, on 16.6.2005 at about 9:15 PM at Office AOne Associates, Near Pooja Filling Station Petrol Pump, Main Karala - Kanjhawla Road both the accused Sunil and Sandeep in furtherance of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 1 of 124 their common intention committed the murder of Sultan by intentionally killing him.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 16.6.2005 DD No. 34A was received at Police Station Kanjhawla pursuant to which HC Joginder Singh along with Ct. Sudhir reached at the office of AOne Associates, Main KaralaKanjhawla Road where two persons namely Malkhan and Sultan met them and Malkhan Singh was placing Sultan in a Maruti Van.
HC Jogender formally searched the pocket of Sultan and found one chit which was taken in to possession. They also found one half bottle of liquor containing more than half liquor of Director Special at the spot which was also taken into possession. Malkhan Singh took Sultan to Brahm Shakti Hospital where he was declared dead at about 10:45 PM. The brother of deceased Sultan namely Malkhan Singh gave his statement to the police wherein he informed the police that his brother had opened an office of property dealing in the name of AOne Associates in the partnership of Sandeep S/o Ram Chander and Ajay S/o Ram Chander in the month of March 2005. In march 2005 Sultan purchased a car bearing No. DL4CAA3286. About eight to ten days prior to the incident when Sultan was admitted in the Hospital, two persons namely Sandeep S/o Ram Chander and Sunil S/o Nand Lal came to the hospital and got signed the sale letters of the car from him. Malkhan Singh further informed the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 2 of 124 police that on 16.6.2005 at about 9:15 PM somebody told him that his brother Sultan was lying at the office of AOne Associate and his condition was critical on which he reached the spot where he found his brother lying unconscious with an unpleasant smell coming from his mouth. The complainant further informed the police that his brother had told him to save him since he had been made to consume something. He further told the police that prior to this at about 7:00 PM his brother telephoned him asking him to send him another shirt since the shirt already worn by him was torn on account of a scuffle with Sunil and Sandeep, on which he (complainant) went to the office of his brother and handed over another shirt to him. The complainant raised a suspicion on the aforesaid two persons namely Sunil and Sandeep. (3) On the basis of the said statement of Malkhan Singh the present case was got registered and both the accused Sunil and Sandeep were arrested. After completion of investigations, charge sheet was filed against both the accused for the offence under Section 302/34 IPC. CHARGE:
(4) Charges under Sections 302/34 Indian Penal Code were settled against both the accused to which they pleaded not guilty and claimed trial.
EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as nineteen witnesses as under:
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 3 of 124 Complainant/ Public witnesses:
(6) PW3 Malkhan Singh is the brother of the deceased and the complainant in the present case. He has deposed that his brother namely Sultan Kanwar had opened the office of property dealer in the name and style of AOne Associates along with Sandeep S/o Ram Chander and Ajay S/o Ram Chander near Pooja Filling Station at Karala road and all of them were having equal shares in the said office. He has further deposed that on 22.03.05 his brother purchased a new Alto car bearing registration No. DL4CAA3286 and on 29.03.05 his brother and accused Sandeep and Ajay had purchased the above said office. The witness has testified that on 09.06.05 in the night his brother was got admitted in the Care & Care Hospital, Rohini as he was suffering from Typhoid when his brother told him that both Sandeep and Sunil came drunk and had a fight with him (Sultan) on the pretext that in one of the property transactions he had taken more share, whereas he was not entitled to it and therefore got his signatures forcibly on a blank sale paper and also threatened him that they would not let him live. Malkhan has also testified that he advised Sultan to lodge an FIR against both the accused but Sultan replied that he would talk to the accused after collecting people from the native village.
According to him, on 16.06.06 at about 10 AM they (accused) went to the house of Sultan and took away Sultan on the pretext of settlement of money. He has testified that at about 7:00 PM in the evening Sultan had a fight with Sandeep and Sunil in which his shirt was torn and he (Sultan) St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 4 of 124 asked him (witness) to bring another shirt to the office. The witness has further deposed that when he went to give the shirt to his brother at his office, his brother took the shirt by just opening the door when he saw both the accused present there and when he inquired about the tiff with the accused they replied that some altercation had happened there but Sultan asked him to go home. He has deposed that thereafter he came back to his house with the torn shirt and at about 9 PM somebody telephoned him at his house that his brother Sultan was lying unconscious after having consumed liquor on which he reached at his office and found Sultan lying half bent on the ground and when he (witness) lifted him he (his brother) informed him that Sandeep and Sunil had given him some drink. According to the witness, when he started to remove him (injured/ deceased) to the hospital, two police officials came and they took out a slip from the pocket of Sultan after which they asked him to sit in a vehicle for taking him to the Brahm Shakti Hospital. He has testified that police personnel showed him that slip in the hospital according to which his (Sultan's) life was under threat at the hands of the accused. The witness has deposed that the said slip which is Ex.P1 was written by his brother and was taken into possession vide seizure memo Ex.PW3/A and one small bottle was handed over by the doctor to HC Jogender. He has also deposed that the doctor declared his brother dead at 10:45 PM and SI Puran Pant came in the hospital and recorded his statement which is Ex.PW3/B. According to him, HC Jogender handed over the slip and St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 5 of 124 small bottle to SI Puran Pant. He has further deposed that the bottle of liquor Directors' Special was also recovered from the office of his brother. According to the witness, at about 4:00 AM in the morning the SHO came to the Brahm Shakti Hospital when SI Puran Pant handed over slip and two bottles to the SHO who again recorded his statement after which he along with the SHO and other police officials took the dead body of Sultan to Sanjay Gandhi Memorial Hospital. The witness has also deposed that SHO inquired him about the torn shirt on which he telephoned to his house and asked for the torn shirt after which the same was handed over to the SHO at SGM Hospital which was wrapped in some paper and taken into possession vide seizure memo Ex.PW3/C after which they came back to the office. He has testified that police personnels searched the office but he does not remember whether anything was recovered there by the police personnels. He has proved having identified the dead body of his brother after which the same was handed over to him vide handing over memo Ex.PW3/D. According to him, the dead body of his brother was buried on 17.06.05 at about 6:45 PM after which he along with other police officials searched for both the accused and went to their respective houses but they were not found there. He has also testified that both the accused were arrested on the way from Kanjhawala to Lad Pur vide arrest memos Ex.PW3/E and Ex.PW3/F and their personal search was conducted vide Ex.PW3/G & Ex.PW3/H. The witness has also deposed that the key of the Alto car St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 6 of 124 was recovered from Sandeep which was taken into possession vide memo Ex.PW3/I and the car which was recovered from accused Sunil was taken into possession vide memo Ex.PW3/J; documents of Alto car were recovered from the possession of accused Sunil and same were taken into possession vide memo Ex.PW3/K. According to him, a bottle which was handed over to the doctor by HC Joginder Singh was taken into possession by the Investigating Officer vide memo Ex.PW3/L. He has identified his signatures on the document Ex.PW3/J at point A and the documents recovered from accused Sunil vide recovery memo Ex.PW3/K are Ex.P3/1, Ex.P3/2, Ex.P3/3, Ex.P3/4 and Ex.P3/5 and the documents Ex.P3/1 to Ex.P3/4 which bear the signatures of Sultan at point Q1 to Q4 respectively. According to the witness, his brother Sultan was having mobile phone bearing No. 9313639970 and after his death mobile phone was used by him and the phone has the same SIM card which was used by his brother.
(7) The witness has brought the Alto car bearing No. DL4C AA3286 which was registered in the name of Sultan and was recovered from Sandeep which is Ex.P2. He has identified both the accused Sunil and Sandeep in the Court and has also identified one shirt of white colour having the label of Kumar which is Ex.P4; key of the Alto maruti car which is Ex.P5.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 7 of 124 (8) In his crossexamination by Ld. Counsel for the accused the witness has stated that his brother was married to Meena Devi on 03.07.91 who was residing with the deceased on the date of the incident. According to the witness, his brother Sultan was not involved in any matter relating to abduction of a girl. He is not aware if the name of wife of Ram Kumar (whom the witness knew) was Rajwanti and states that Ram Kumar was residing in Kanjhawala but he had no relations with him. He has denied that the daughter of aforesaid Ram Kumar was abducted by his brother Sultan or that after she was abducted by his brother he performed Court marriage with her forcibly. The witness has further deposed that his deceased brother Sultan was dealing in the property business since the year 2000 and is not aware if Sultan had plots of various persons in village Kanjhawala sold to different persons/ customers. He has no knowledge about any business dealings of Sultan with any person in the village. The witness has testified that he is not known to any Radhey Lal residing in their village nor is he aware if Sultan had obtained a sum of Rs.80,000/ from Radhey Lal. He has deposed that Balbir Singh S/o Uday Singh and Dal Chand S/o Molad Chand reside in village Kanjhawala. He is not aware if there was any servant at the property dealing office of his deceased brother who was having the office jointly with Sandeep and Ajay and states that it was possible that a servant employed at the property dealing office might be visiting the house of the deceased. He is unable to tell whether the name St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 8 of 124 of that servant was Alam. According to him the information received by him about the incident was received on telephone but he did not ask the name of that person who telephoned him nor he could identify his voice. He is unable to tell if the said information was given to him by Alam and has stated that when he reached the spot none was present there from the neighbourhood or any other passersbye. He has further deposed that office was located at a distance of one kilometer from his residence and he did not use any conveyance for going to the office of his brother from his house. The witness has further deposed that he had gone to the office on foot and cannot tell the exact time when he reached there and states that it might be between 9:15 to 9:30 PM. He has testified that he remained at the spot for about half an hour before he removed his injured brother to the hospital. According to the witness, his brother was taken in a van but he is not aware whose van it was. He has further deposed that police from PCR did not arrive at the spot during that half an hour and has denied that PCR van came at the spot before he left the spot or that PCR official also went to the hospital alongwith the injured. (9) The witness has also deposed that local police arrived at the spot after ten minutes but the SHO or SI were not among the police people who reached at the place of incident during half an hour of his stay. He has stated that the office of property dealer consisted of two rooms and a kitchen place behind the rooms. According to him, the two rooms were one in front and the other was behind that front room with a St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 9 of 124 door in between and when he reached the spot his brother was lying on the floor of the rear room of the office. He has testified that there was vomit also by his side and vomit was also there on the clothes of his deceased brother. He has further deposed that his first statement was recorded by the police at Brahm Shakti Hospital at about 1:30 to 2:00 AM (night between 16/17.06.06) and SI had reached at the hospital at about 12 in the night followed by the SHO. He has testified that the SI had done some writing work when he disclosed the facts to him but he (SI) did not obtain his (witness) signatures on that writing. According to him, he was interrogated by the SHO and then he obtained his signatures on his statement. He has further deposed that he had told the Investigating Officer in his statement that the car was purchased by his brother on 22.03.05 but when confronted with his statement Ex.PW3/B the date was not found mentioned. He is not aware if his brother had deposited the purchase price of the car earlier to 22.03.05. The witness has further stated that he had told Investigating Officer in his statement the date as 09.06.05 when his brother got admitted in Care & Care hospital as he was suffering from Typhoid but when confronted with his statement Ex.PW3/B neither the date nor the name of hospital was found mentioned. According to him, he had stated to the Investigating Officer in his statement that Sandeep and Sunil came drunk to the hospital and had a fight with his brother Sultan; that both of them had threatened him (his brother) that they would not let him live his life; that he advised St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 10 of 124 Sultan to lodge the FIR against both the accused but Sultan replied that he will talk to the accused while collecting the people of native village; that on 16.6.05 at about 10 a.m. they went to the house of Sultan and took away Sultan for settlement of the money; that when he gave the shirt to his brother at his office, his brother took the shirt by opening the door and accused persons were also there; that when he inquired from the accused in respect of tiff with the accused they replied that some altercation had taken place and Sultan asked him to go home; that he came back home with the torn shirt that at about 9:00 PM he received a telephone from somebody at his house; however, when confronted with statement Ex.PW3/B where the aforesaid facts were not found so recorded. The witness has further deposed that he had told the Investigating Officer that when he had lifted his brother he (his brother) informed him that Sandeep and Sunil had given him some drink; that they (police) asked him to sit in a vehicle for taking Sultan to Braham Shakti hospital; that SHO enquired him about the iron shirt and he telephoned to his house and asked for torn shirt; however when confronted with his statement Ex.PW3/B where it was not found so recorded. He has denied the suggestion that he did not telephone anybody from the hospital to bring the torn shirt for being handed over to the SHO at Sanjay Gandhi Memorial Hospital. (10) The witness has further deposed that he had told the police that on 17.06.05 after 6:45 PM he along with the police searched both the accused and went to their respective houses but they were in their houses. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 11 of 124 He was confronted with supplementary statement Ex.PW3/DA, it was not so recorded. According to the witness, he had also stated to the police that car was recovered from the possession of accused Sunil but when confronted with his statement Ex.PW3/DA where it was not so recorded. He has denied the suggestion that he had signed the memo Ex.PW3/L, Ex.PW1/A and Ex.PW3/C at the police station. The witness has further deposed that he went to the police station Kanjhawala at about 77:30 p.m. on 17.06.05 where SHO and SI Pant met him in the police station and he remained with them in the police station for about one and half to two hours and had signed some documents/ memos at the police station during his stay on 17.06.05.
(11) In his further crossexamination, the witness has denied the suggestion that the person who informed him about Sultan lying in the property dealer office told him on his inquiry that his deceased brother had come to the office after taking liquor and was lying unconscious. According to him, after he reached the spot PCR officials had also arrived at the spot and the local police had arrived at the spot before his brother was taken to the hospital. He has further deposed that he did not know when his deceased brother had made the payment to the company for purchase of the car nor did he knew the sources from which his brother made the payments. He is also not aware if his deceased brother had obtained a loan from accused Sandeep for making payment for the purchase of the car. According to the witness, the papers in respect of the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 12 of 124 transfer of the car were got signed from his brother about one week prior to the incident. He is not aware if the persons from whom his brother had obtained loan or otherwise owed money to them had approached the respectables of the village or that a meeting had taken place between them and his brother in the presence of those respectables. The witness has also deposed that after cremating the dead body of his brother he returned to his house at about 9:00 PM on 17.06.2005. According to him, in his presence no interrogation was done from the accused persons by the police. He has also deposed that on 17.06.2005 the memos pertaining to the seizure of the car, seizure of the documents of the car, seizure of the key of the car and relating to the arrest of the accused persons were prepared. He has denied the suggestion that the documents relating to the car were also seized from the property dealing office of the accused and his brother. The witness has further deposed that in his FIR and also in his subsequent statements to the police he had told the police that his brother and the accused purchased the property dealers office on 29.03.2005 (emphasize on date on 29.03.2005) but when confronted with FIR Ex.PW3/B and the subsequent statements where it was not so recorded. The witness Malkhan has also deposed that on 16.06.2005 after leaving his house at 10 a.m. Sultan did not come to the house. He has denied the suggestion that he had not gone to the property dealers office of the deceased at 7 p.m. or that he did not take any shirt with him. The witness has also denied the suggestion that the evidence was fabricated by St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 13 of 124 him in connivance with the police or that that he had made improvements in his court statement on legal advise in order to support the case of the prosecution against the accused persons. He has also denied that there was no handing over of the slip, the liquor bottle or the gastric lavage in the hospital or that these memos were also later on prepared and signed by him in the police station. The witness has testified that he had gone to the police station on 17.06.2005 at about 10 AM when some documents were prepared by the police and his statement regarding this incident was again recorded by them. He has deposed that immediately after arrival of the Head Constable from the police station, he removed the mobile phone from the pocket of the deceased and the same remained with the police till 18.06.2005 and it was handed over to him by them at about 11:00 AM on 18.06.2005 which fact he had not stated before the police. The witness has further deposed that so long as he remained at the spot before removing his brother to the hospital none from the neighbourhood, nor any passerbyes had collected at the spot. He has denied the suggestion that many persons had collected at the spot before he reached and that he was deliberately telling a lie in order to support his version that he talked to his brother. He has denied that when he reached there his brother was already unconscious and has voluntarily added that when he tried to lift his brother he cried that he should be saved. According to the witness, he lifted him with the help of Naresh Kumar who was his neighbour and also accompanied him to the hospital also. He has further deposed that Naresh St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 14 of 124 Kumar was with him in the hospital when the SI and SHO arrived there and he told them that he lifted his brother and cried in his presence as aforesaid. He has deposed that his first statement was recorded at about 1:30 or 2:00 AM on the night intervening 16/17.06.2005 by one police official but he did not remember his rank whether he was Constable or Head Constable. He has denied the suggestion that slip Ex.P1 was not recovered from the pocket of his brother Sultan in his presence. He does not remember the time when SHO reached the hospital and has stated that he took his brother Sultan to the hospital in that van. The witness has further deposed that Naresh Kumar had also accompanied them in that van. He has denied the suggestion that the documents of the car, as alleged, were not recovered from the accused Sunil. He does not remember whether he had signed the disclosure statements made by the accused persons or not. He has admitted that Sunil used to visit the office of Sandeep in the presence of Sultan and has voluntarily explained that accused Sunil used to visit the residence of his brother. According to the witness he is 9th class pass and can read Hindi properly and little bit of English. He has admitted that Ex.P1 slip is not signed by any person including Sultan Kanwar deceased. He has denied the suggestion that accused Sunil had been falsely implicated in this case as he used to visit the office of Sandeep in which his brother was partner and it was due to this reason that accused Sunil had been falsely implicated in this case. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 15 of 124 (12) PW4 Prem Singh has deposed that Sultan was his brother in law (Jijaji) and he had identified the dead body of Sultan at Brahm Shakti Hospital vide statement Ex.PW4/A which was recorded by the police at the hospital on 17.06.05.
(13) In his crossexamination the witness has deposed that during those days he was residing at Sonepat and had come to Delhi on 17.06.05. According to the witness he reached at Brahm Shakti Hospital though he does not remember the time when he reached there but states it was in the afternoon. He has testified that his statement was recorded after he had received the dead body of his brother in law but he does not remember the time.
Medical witnesses/ Evidence:
(14) PW2 Dr. Sudip Kumar, CMO Brahm Shakti Hospital has deposed that on 16.06.05 at about 10:10 PM one Sultan S/o Jivan aged 35 years male was brought by one Mr. Malkhan, with an alleged history of ingestion of alcohol with some poisonous substance (unknown tab) on that day around 9:30 PM as told by patient's attendant and the patient was brought in emergency room in unconscious state. According to the witness, it was a case of unknown poisoning and on examination his pulse was found feeble; Blood pressure was not recordable; respirationgasping, extremities cold, Synosis plus stomach wash done, emergency treatment given after which stomach wash and seal of BSH was handed over to St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 16 of 124 police. The witness has deposed that after giving the emergency treatment the patient was handed over to consultant physician Dr. Rahul but despite all efforts, patient expired at 10:45 PM on the same date. He has proved the MLC of the patient which is Ex.PW2/A. The said witness has not crossexamined by the accused despite opportunity and his testimony has gone uncontroverted.
(15) PW5 Dr. B. L. Garg Resident Medical Officer from Jaipur Golden Hospital has deposed that he was in Bhram Shakti Hospital for about one and half year before joining the Jaipur Golden Hospital. He has proved having prepared the death summary of Sultan who was admitted in their hospital on 16.06.2005 which is Ex.PW5/A. According to him the patient was admitted at about 10:15 PM and was unconscious;
pulse less; B.P. was Less and he was in gasping state. The witness has deposed that the patient was admitted to ICU Ward and was declared dead at 10:45 p.m. This witness was not crossexamined by Ld. Counsel for the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(16) PW6 Dr. Samir Pandit, Medical Officer, Sanjay Gandhi Memorial Hospital has deposed that on 17.06.2005 he was posted in the Sanjay Gandhi hospital on which date he conducted the postmortem on the dead body of Sultan aged 35 years son of Jeevan which was sent by SHO Inspector Daljit Singh, the then SHO Police Station Kanjawala. According to the witness the body was identified by brother Malkhan and St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 17 of 124 there was an alleged history of ingestion of alcohol with some poisonous substance; admitted in Bhram Shakti Hospital, Budh Vihar, Delhi in unconscious state vide MLC No. 1301 dated 16.06.2005; expired in the same hospital at 10:45 PM on 16.06.2005 and case FIR No. 154/05 dt. 17.06.2005 was registered at police station Kanjhawala. The witness has further deposed that the deceased was wearing track pajayama, underwear was fecal stained, white check shirt torn in right axilla and a Sando banyian. The body was average built, rigormortis was present all over the body and postmortem staining was at back, both eyes were closed, Conjunctivae was congested and cornea was hazy, mouth was closed with tongue inside, nails were bluish and fecal incontinence was noted. According to the witness on external examination I.V. Injection mark (therapeutic) was noted on dorsum of left hand. He has deposed that on internal examination of Head scalp tissues and skull bone were normal, brain matter meningas and cerebral vessels were found congested, on cut section intra cerebral patechial hemorrhages were noted on both sides, base of skull was normal. On examination of neck soft tissues were normal, hyoid bone thyroid cartilage, cricoid cartilage and tracheal rings were intact and tracheal mucosa were congested. Further on examination of chest, bony cage and pleural cavities were found normal, both the lungs were congested and edematous and on cut section exude dark colour blood was found and heart was congested. The witness has further proved that on examination of abdomen, all the abdomen organs were St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 18 of 124 congested, stomach containing about 200 ml of watery fluid, its mucosa was highly congested and showed hemorrhagic areas with presence of grayish white material entangled in mucosa, bowels were congested. urinary bladder was half and rectum was empty and genital organs were found normal. According to the witness no abnormality was detected in the Spinal column. He has proved that the cause of death was pending for want of chemical analysis report of the viscera which was preserved and handed over to the police and time since death was approximately consistent with hospital time of death. The witness has further deposed that after postmortem clothes of the deceased, blood and viscera were sealed with the seal of DSP for chemical analysis in three plastic jars and were handed over to police alongwith inquest paper (13 numbers). He has proved his detailed postmortem report which is Ex.PW6/A. (17) The witness has also deposed that on 30.01.2006 the Investigating Officer of the case came to him alongwith his request for subsequent opinion along with a photo copy of FSL report No. FSL2005/C33369 dated 20.11.2005 of FSL, Delhi for opinion regarding the cause of death. According to him, after going through the FSL report findings and with the postmortem report findings he gave opinion regarding the cause of death as "Combined effect of Ethyl Alcohol and Aluminum Phosphide poisoning" which opinion is Ex.PW6/B. This witness was not crossexamined by Ld. Counsel for the accused and his testimony has gone uncorroborated.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 19 of 124 Police/ Official witnesses:
(18) PW1 HC Dilawar Singh has deposed that on the intervening night of 16/17.6.2005 he was posted in Police Station Kanjhawla and was working as Duty Officer from 4:00 PM to 8:00 AM. According to the witness at about 4:50 AM he received a rukka through Ct. Sudhir Kumar which was sent by SI Puran Pant on the basis of which rukka he recorded the FIR of the present case copy of which is Ex.PW1/A. He has further deposed that after recording the FIR copy of the FIR and original rukka were sent to SHO/ Inspector Baljeet Singh for further investigations through Ct. Sudhir Singh and copies were also sent to senior police officers and area Magistrate through special messenger. (19) In his crossexamination the witness has deposed that he also recorded the Kyami DD for recording the FIR and the gist of the FIR has not been mentioned in the kyami DD by him. According to him, he sent the copies of the FIR to the senior police official and area Magistrate through special messenger early in the morning at about 6:00 AM. He has further deposed that the special messenger did not come back during his duty hours. He is unable to tell whether the special messenger reached at the area Magistrate at about 4:05 PM or not. (20) PW7 Dheeraj Manchanda Branch Manager from State Bank of India, Kanjhawla has deposed that there was an account bearing No. was 01190013516 in the name of Sultan Kanwar son of Jiwan residence of village Kanjhawala in their Kanjhawala Branch of SBI. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 20 of 124 According to him, during the course of investigation he handed over the account opening form of the account holder Sulan Kanwar to the Investigating Officer which is Ex.PW7/A. The witness has also proved the bank statement of the account holder, which was attested by him from the record of the account holder, copy of which statement is Ex.PW7/B (three sheets) bearing his signatures and bearing the stamp of his bank. The witness has clarified that in the said statement the account number of the account holder had been changed and the present account number was 10527521103. He has also proved that the above mentioned account opening form was taken into possession by the Investigating Officer vide memo Ex.PW7/C bearing the signatures of Sh. S.L. Goel, the then Branch Manager, SBI, Kanjhawala whose signatures the witness has identified. He has not been crossexamined by Ld. Counsel for the accused persons and his testimony has gone uncontroverted. (21) PW8 Const. Dalbir Singh deposed that on 17.06.05 he was posted as Photographer in North West District and on that day after receiving the information he along with the other staff of Mobile Crime Team reached at AOne Associates, Main Karala, Kanjhawala Road where at the instance of Inspector Baljit Singh, the then SHO he took four photographs of the spot. The witness has placed on record the negatives of the photographs which are Ex.PW8/A1 to Ex.PW8/A4 and has proved the photographs which are Ex.PW8/B1 to Ex.PW8/B4. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 21 of 124 (22) In his crossexamination the witness has deposed that he reached the spot at around 8 AM and remained there for half an hour and during this period no public person was present there. According to him, there was no public person or any employee inside the room where he took the photographs. The witness has deposed that he had not taken the photograph of the chance prints at the spot. He does not remember if any liquor bottle or glasses were lying there and has deposed that Const. Bal Kishan who was concerned with the taking of finger prints/chance prints was also with them but he is not aware if he had lifted any chance prints at the spot.
(23) PW9 Naresh Chand, LDC Delhi Transport Authority, Janak Puri has produced the summoned record of vehicle i.e. M. Car bearing No. DL4CAA3286 Alto which was initially registered in the name of Sultan S/o Jeevan Ram R/o Vill. Kanjhawala, Bawana, Delhi on 23.03.05 and on 27.12.05 this vehicle was transferred in the name of Smt. Meena W/o Sultan (after the death of the deceased). He has proved the copy of the old RC in the name of Sultan which is Ex.PW9/A and according to him, the particulars/ record in this regard is Ex.PW9/B. This witness was not crossexamined by Ld. Counsel for the accused and his testimony has gone uncontroverted.
(24) PW10 Const. Kuldeep has deposed that on 24.08.05 he was posted as constable police station Kanjhawala and on that day on the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 22 of 124 instructions of Investigating Officer he took three sealed pullandas and two sample seal with the FSL form from MHC (M) for depositing the same in FSL Rohini vide RC No. 86/21/05 and accordingly he deposited the same in FSL Rohini after which he deposited the receipt with the MHC (M). He has proved that the sealed pullanda remained intact in his possession and he did not interfere with it nor he allowed anyone to interfere with it. The witness has further deposed that on that day on the instructions of the Investigating Officer he took one envelope sealed with the seal of PP alleged to be containing one slip, statement of bank of deceased Sultan and account/ form and one letter of Pasco Automobilies alongwith FSL form for depositing it in FSL Rohini vide RC No. 69/21 and accordingly he deposited the same. He has proved that the same remained intact in his possession and he did not interfere with it nor he allowed anyone else to interfere with it. During his crossexamination the witness has deposed that the Investigating Officer had not disclosed him the documents contained in the envelope but the MHC(M) had recorded the particulars thereof in the road certificate.
(25) PW11 SI Manohar Lal deposed that on 01.07.05 he was posted at West District, Ashok Vihar as a draftsman and that on that day he was called by Inspector Baljit Singh at police station Kanjhawala from where he along with Inspector Baljit Singh reached the spot i.e. AOne Associates, Main Road, Kanjhawala. He has proved that there at the pointing out of the complainant Malkhan Singh who also reached the spot St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 23 of 124 he took rough notes and measurements. The witness has also deposed that on the basis of those rough notes and measurements he prepared scaled site plan with its correct marginal notes on 02.07.05 and handed over the same to Investigating Officer which site plan is Ex.PW11/A. He has proved that he destroyed the rough notes after preparing the scaled site plan.
(26) In his crossexamination, the witness has deposed that he reached in the police station at about 3:00 PM and the spot at about 3:30 PM. He has deposed that the complainant Malkhan Singh was not called at police station but he coincidentally met at the spot. He has denied that at the time he inspected the spot, Malkhan Singh was not there. The witness has further deposed that he had not prepared any plan on the tracing paper and has voluntarily explained that he prepared the plan directly on the computer. He has denied that he did not visit the spot or that he had prepared the site plan at the instance of Investigating Officer. (27) PW12 HC Devender Kumar has deposed that on 29.07.05 he was posted as Constable in police station Kanjhawala and on that day on the instructions of the Investigating Officer he took one envelope sealed with the seal of BS alongwith FSL form from MHC(M) alongwith some other documents for depositing the same in FSL Rohini and after depositing he deposited the receipt with the MHC(M). He has proved that the seal remained intact during his custody. He has not been cross examined by Ld. Counsel for the accused despite opportunity in this St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 24 of 124 regard.
(28) PW13 HC Jai Bhagwan has deposed that on 16.08.05 he was posted at police station Kanjhawala and on that day SHO handed over a request which he took to Reliance Office situated at Bara Khamba Road. According to the witness, he was directed by the SHO to bring the call detail of mobile No. 9313639970 and he obtained the call details from Reliance office which are Mark X1 which he handed over to SHO. (29) In his crossexamination the deposed has deposed that he met the dealing officer at the reception but he is not aware his name. He has further deposed that his statement was recorded by the Investigating Officer in the police station in evening hours but he does not remember the time.
(30) PW14 Sanjeev Lakra Alternate Nodal Officer, Reliance Communication has produced the call details dated 16.06.2005 in respect of mobile number 9313639970 which was in the name of Sultan R/o 4, Kanjhawala, Delhi81. He has proved the copy of the application form of the subscriber Sultan which is Ex.PW14/A; copy of electricity bill in support of address proof which is Ex.PW14/B; receipt of the bill which is Ex.PW14/C issued by the company in favour of Sultan Kanwar; call detail record which is Ex.PW14/D and the Cell ID chart which is Ex.PW14/E1 to Ex.PW14/E6.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 25 of 124 (31) In his crossexamination the witness has deposed that the call details of telephone No. 9313639970 of dated 16.06.2005 starts 12.00 hours 8 minutes and 36 seconds upto 23 hours 37 minutes and 47 seconds. He has admitted that in this call detail record Ex.PW14/D one call detail was of dated 17.06.2005 and that this data was not in the server and it was taken out from the tapes. The witness has also admitted that data of all the dates were there on the tapes. According to him, as per mark X1 only three calls of dated 16.06.2005 have been shown in the same. He has further admitted that as per Ex.PW14/D some more calls had been shown in the data dated 16.06.2005 and has voluntarily explained that that earlier the Investigating Officer had asked only for the details of the outgoing calls and it was for this reason mark X1 only contains the details of outgoing calls dated 16.06.2005 whereas the record produced by him in the Court contained both the outgoing and incoming calls. The witness has also admitted that there were eight outgoing calls from the above mobile number on 16.06.2005 including the 100 number call. He has further deposed that the call details Ex.PW14/D produced by him did not bear any certificate by the service provider/ Nodal Officer and it only bear the seal of the office at point A. The witness has also deposed that the call at point B in Ex.PW14/D is of 17.06.2005 which was reflected after the call on 16.06.2005 at 23 Hrs (11.00 PM). According to him, the at point C in Ex.PW14/D was reflected as a call made on 16.06.2005 at 21 Hrs. (9.00 PM) and has voluntarily stated that St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 26 of 124 the date of the call made on 17.06.2005 was preceding the data of the calls made earlier on 16.06.2005 for the reason that after one year the entire date was transferred to the server to be preserved in the tapes and now the said data had been retrieved from the tapes due to which reason it was not in the ascending order of time. He has denied that the data recorded in the tapes and thereafter retrieved would be in the same order (ascending order) and has voluntarily explained that the data fed in the tapes was a raw data and so was the data retrieved from the same in a raw form and could be in any serial. He has testified that they did not change the serial number of the data when retrieved later from the tapes. He has denied that the data had not been saved in the server in the original form and that the data produced before this Court was tampered and manipulated. He has also denied that the call details produced before the Court did not bear the due authentication and certification as required under the Indian Evidence Act and has voluntarily stated that in case of data retrieved from the tapes no separate certificate under section 65 B of the Indian Evidence Act was issued and the data produced before the court bear the stamp of the company. He has admitted that Ex.PW14/D only bear the stamp of the company and did not authenticate the data and has voluntarily stated that he was the duly authorized officer who could authenticate the same and he duly certifies that the above data Ex.PW14/A to Ex.PW14/E6 was the true and correct record of the application form and the attached documents in support filed by the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 27 of 124 subscriber, the receipt issued by the company alongwith the call details being maintained by the company to the best of his knowledge and belief. He has denied that he had made false statement with regard to the certification of documents in the court.
(32) PW15 HC Dilbagh Singh has deposed that on 17.06.05 he was posted at Police Station Kanjahawala as MHC(M) and on that day Insp. Baljeet Singh had deposited gastric leverage duly sealed with the seal of BSH along with sample seal of the same seal which he received vide serial No. 1236 of register No. 19. According to the witness, the Investigating Officer had also deposited one torn kurta type shirt, duly sealed with the seal of BS, one wooden box containing viscera and clothes and sample seal with the seal of DSP, one liquor bottle duly sealed with the seal of BS, two keys of the car stated to be of Alto car No. DL4CAA 3286 in a bunch along with a remote, one maruti car having registration No.DL4CAA3286 vide serial No. 1236 of register No.19. The witness has further deposed that he also took the jamatalashi vide same entry of register No.19. According to him, he send the exhibits of this case to FSL Rohini on 29.07.05 through Ct. Devender vide RC No. 69/21 and also sent plastic bottle, viscera and whiskey bottle to FSL Rohini vide RC No. 86/21 through Ct. Kuldeep and received the exhibits back which were sent to FSL Rohini vide RC No. 86/21 on 24.08.05, in the malkhana through Ct. Ramesh on 19.12.05. The witness has also stated that on 06.02.06 he received the exhibits sent to FSL Rohini vide St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 28 of 124 RC No.69/21 back through Ct. Dinesh on 06.02.06. He has placed on record the copy of aforesaid entry which is Ex.PW15/A running into four pages; copy of RC No. 69/21 which is Ex.PW15/B running into two pages and the photocopy of RC No.86 which is Ex.PW15/C running into two pages.
(33) In his crossexamination, the witness has deposed that he received the aforesaid articles from the SHO in the night but he did not remember the exact time. He has admitted that SHO had not made any entry in his hand and has stated that the SHO made entry in the relevant column and bear his signatures at point B as checked and the date there under was 15.06.05. According to him, no DD entry maintained in the malkhana for deposit of articles or taking thereof from the malkhana separately. He has also deposed that the articles/ documents send vide RC No.69/21 dated 29.07.05 were not deposited with him in the malkhana at any stage. He has testified that his first statement was recorded by the Investigating Officer on 24.08.05 in the police station and his statement was also recorded before 24.08.05 i.e. on 29.07.05 but there is no statement dated 29.07.05. He has admitted that he had not stated to the Investigating Officer regarding return back of the articles in his statement and that no envelope was deposited by Inspector with him. He has denied that entires were made by subsequently at the instance of SHO.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 29 of 124 (34) PW16 HC Jogender Singh has deposed that on 16.06.2005 he was posted at Police Station Kanjahwala and on the receipt of DD No. 34 A at about 9:10 PM he along with Ct. Sudhir reached AOne Associate office, main Karala Road leading to Kanjhawala where two persons namely Malkhan and Sultan met them and Malkhan was placing Sultan in maruti van. He has deposed that there was another room on the back side of AOne Associate Office. According to the witness, he formally searched the pocket of Sultan and found one chit which was taken into possession after which he and Ct. Sudhir went in the office from the back gate where he found half bottle of liquor Director special containing more than half liquor. He has proved having taken into possession the aforesaid chit vide memo Ex.PW1/A which was handed over to SI Puran Pant and the aforesaid bottle was taken into possession by him and seized vide memo Ex.PW16/A. The witness has also deposed that Malkhan Singh brought Sultan to Braham Shakti Hospital and they also followed them. According to him, Sultan was declared dead in the hospital at about 10:45 PM and doctor handed over him the MLC of Sultan and gastric lavage which were taken by him vide memo Ex.PW3/L which he in turn handed over to Insp. Puran Pant who came in the hospital at about 2:15 AM. The witness has also deposed that at about 4:15 AM SI Puran Pant prepared the rukka and handed over the same to Ct. Sudhir Kumar who took the same to the police station and came back with a copy of the FIR and original rukka which Ct. Sudhir handed over SI Puran Pant. He St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 30 of 124 has deposed that Insp. Baljeet Singh had also come in the hospital along with Ct. Sudhir and he handed over the aforesaid half bottle to Insp. Baljeet Singh who seized the same. According to him, at about 7:15 AM he along with Ct. Sudhir were sent to the spot by Insp. Baljeet Singh to attend the crime team on which they reached the spot and at about 8AM crime team came to the spot and remained there up to 8:30 AM which inspected the spot during this period and in the meanwhile Insp. Baljeet Singh and SI Puran Pant had also come to the spot. The witness has also deposed that they remained at the spot for a while and thereafter they all left for Sanjay Gandhi Hospital after which the postmortem on the dead body of deceased Sultan was done at about 2 PM on 17.06.05. He has stated that after getting the postmortem conducted, the dead body was duly identified by the witnesses and thereafter same was handed over to the relatives of the deceased. The witness has further proved that they brought Malkhan at Kutab Garh Road and the accused persons namely Sunil and Sandeep were apprehended near pulliya at Kutab Garh road at the instance of Malkhan. He has proved having conducted the formal search of accused Sandeep during which they found a bunch of key of Maruti, Rs.20/, one mobile of Samsung along with a remote in the right pocket of his pant which were taken into possession after which both the accused persons were taken to the house of Sunil where they got opened the almirah kept in the house from Sunil and took out the documents of Alto registration No. DL 4CAA3286 which were also taken into St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 31 of 124 possession vide seizure memo Ex.PW3/I, Ex.PW3/K and Ex.PW7/C. According to the witness at about 10:15 PM they reached the police station and both the accused persons were arrested in this case vide memos Ex.PW3/E and Ex.PW3/F after which they were personally searched vide memos Ex.PW3/H and Ex.PW3/G. He has correctly identified both the accused Sunil and Sandeep in the Court. (35) With the permission of the Court, the Ld. Addl. PP put leading questions to the witness during which he has admitted that a torn shirt type kurta was also taken into possession vide seizure memo Ex.PW3/C and has voluntarily explained that the same was produced by Malkhan Singh in the mortuary to SHO Insp. Baljeet Singh as the same shirt worn by Sultan at the time of incident. He has also admitted that doctor concerned had handed over the sealed viscera and clothes along with the sample seal with the seal of hospital to SI Puran Pant in his presence and same was seized by the SHO vide seizure memo Ex.PW16/B. The witness has also admitted that the aforesaid maruti Alto car was also taken into possession at the instance of Sandeep vide seizure memo Ex.PW3/J and that both the accused persons were interrogated in his presence and their disclosure statements were recorded vide Ex.PW16/C and Ex.PW16/D. (36) He has identified the documents recovered from almirah which are Ex.PW3/1 to Ex.PW3/4 and mark X4 to X7 and also St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 32 of 124 Ex.PW3/F; one torn shirt produced by Malkhan Singh which is Ex.P4; one half liquor bottle which is Ex.P6; keys along with remote and bunch are Ex.P5; slip recovered from the pocket of deceased Sultan which is Ex.P1 which is pasted on the blank paper Ex.PW1/A. (37) In his crossexamination, the witness has deposed that from the police station they had gone to the spot on motorcycle on receipt of DD and the distance from the police station to the spot was hardly two to two and a half kilometers. According to him, they reached the spot within ten to fifteen minutes and Sultan was removed to the hospital after about four to five minutes of their reaching the spot. He has admitted that initial call was made to the PCR from where they were passed on the information and has stated that when they reached the spot and till the time they remained there, the PCR vehicle had not reached. He has denied that PCR had reached the spot and Sultan was removed to the hospital in PCR van. According to the witness, he had shown the recovered slip P1 to Malkhan at the spot and the bottle of alcohol lying at the spot was seized by them immediately. He has deposed that there were no shops in the vicinity and the Petrol Pump was at some distance. He has further deposed that he stayed at the spot for about four to five minutes but no person or passer bye stopped at the spot till they remained there. He has denied the suggestion that they had made inquires from the persons in the vicinity and also from one servant of that shop where Sultan was found lying. He has further deposed that no memo was St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 33 of 124 prepared in respect of his handing over the slip P1 to SI Puran Pant and the liquor bottle was not handed over to SI Puran Pant by him at that time. According to the witness, when they reached the spot Sultan was unconscious. The seizure memo of the slip which is Ex.PW3/A was shown to the witness which was related to the handing over the slip Ex.P1 to SI Puran Pant which was signed by him and the witness has admitted that he had mentioned in Ex.PW3/A that while he was conducting inquires at the spot Malkhan had come during inquires. He has denied that he was making a false statement to the extend that Malkhan was already present at the spot in order to accord his statement with the evidence of Malkhan. He has also deposed that at the time when he presented the slip to SI Puran Pant the liquor bottle had also been seized by him and he did not deem it necessary to hand over the liquor bottle also to SI Puran Pant. He has denied that the liquor bottle was subsequently planted and that is why he did not produce the same to SI Puran Pant. According to the witness, when he presented the slip of SI Puran Pant no statements of any witness had been recorded and even the case had not been registered. He has also deposed that SI Puran Pant met him in the hospital after about 2 ½ hours and when he reached the hospital he did not inform the police station about the incident and has stated that he had given information to the police station from the spot regarding the position. He has testified that he did not meet any Naresh Kumar along with Malkhan at the spot nor he meet any person by the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 34 of 124 name of Naresh Kumar in the hospital. He has denied that Naresh Kumar was present with Malkhan and had also gone to the hospital with him. The witness has further deposed that he had signed the recovery memo in relation to the seizure memo of documents of the car No. DL 4C AA3286 and has admitted that in the said memo Ex.PW3/K only his name and number was recorded where he was shown as Constable but his signatures were not present at Mark X. He has denied that Ex.PW3/K was a fabricated document and no such recovery was made in his presence and therefore only name was inserted in the document without his signatures. According to him, he was also attesting witness of disclosure statement of accused Sunil which is Ex.PW16/C and has denied that signatures on point X on Ex.PW16/C did not belong to him. (38) The witness HC Joginder has further deposed that when he reached the spot there was no vomit lying at the spot nor there was any vomit on the clothes of Sultan. He has denied that there was vomit lying at the spot and also on the clothes of Sultan. He has testified that the place where the liquor bottle was found, there were no other articles such as glasses, jug,water/soda bottles etc. indicating that liquor had been consumed at the spot. According to him, when he reached the spot he had taken the search of the office where Sultan was found lying but he did not ask any public person to witness the search of the office and has voluntarily explained that there was no person present at the spot nor did he call anyone being night time. The witness has also deposed that there St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 35 of 124 was no liquor shop in the vicinity of 50 feet from the office where Sultan was found and has voluntarily stated that the theka was ahead of Karala village. He denied has that he deliberately did not associate any public person in the seizure of slip, liquor bottle and office search. He has also stated that the search of the office where the injured was found lying was subsequently taken by the SHO and SI Puran Pant also. The witness has also deposed that he along with Ct. Sudhir reached at the spot at around 8:00 AM on the next morning i.e. 17.06.05 and the crime team had met him on his way to the office and they accompanied him to the spot. He has denied the suggestion that he did not go to the spot when the crime team was there and it was Ct. Sudhir who was there. The witness has testified that he and Ct. Sudhir had not stated to the crime team that the deceased had consumed some poisonous thing like sulphas in liquor. According to him, SHO and SI Puran Pant had reached the spot after the crime team had left and he did not ask the crime team to lift the chance prints from the liquor bottle nor they (crime team officials) told him that they wanted to examine the liquor bottle. The witness has testified that he did not tell the crime team that the floor of the room had been cleaned/ washed and has voluntarily explained that it was not cleaned/ washed in his presence and he did not know about it. He has further deposed that at the time when he conducted the search of the victim Sultan he did not find any mobile phone in his pocket. He has denied the suggestion that he had removed the said mobile phone belonging to Sultan and kept it with St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 36 of 124 him and returned the same to the brother of Sultan after some days. He has deposed that SI Puran Pant came to the hospital about two to two and a half hours of his informing the police station about the death of Sultan whereas the SHO came to the hospital at 6:30 AM. The witness has also deposed that Malkhan did not tell him anything in the hospital and has denied that Malkhan had told him about the incident in the hospital itself. He has denied the suggestion that SI Puran Pant did not record any statement of Malkhan nor prepared any rukka nor send the same to the Police Station for registration of FIR. He has also denied the suggestion that no FIR was registered nor Ct. Sudhir brought the copy of the same to the hospital. The witness has further denied that the statement of Malkhan was written later on and formulated anti datedly in time. He has further stated that accused Sandeep was arrested at 6:15PM and thereafter the car was taken into possession which was just parked about 1520 steps away from the place of occurrence. According to him, from there straight away they went to the house of Sunil accused and from there they proceeded to the police station where accused Sandeep and Sunil were interrogated. The witness HC Joginder has deposed that on 17.06.2005 Malkhan met them at about 5:15 5:30 PM at the Shamshan Ghat and they did not make any departure entry in the police station when they joined Malkhan. He has denied that the key of the car and the car were not recovered in the manner stated above or that the same were produced by Malkhan and the car was taken from outside the house of the deceased. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 37 of 124 The witness has also denied that accused Sandeep and Sunil were not arrested in the evening from Kutab Garh Road or that they were already detained in the police station. He has further deposed that on 17.06.2005 no documents were prepared at the police station on which his signatures and that of Malkhan was taken. He has further denied that false proceedings have been drawn to implicate the accused or that no disclosure was made by the accused persons and their signatures were falsely obtained on the documents fabricated by the Investigating Officer. (39) According to the witness HC Joginder Singh, they went to the house of accused Sunil at about 6:20 PM and no public person or any neighbourer were joined by the Investigating Officer before taking the search of the house of accused Sunil despite the fact that there are other houses in the vicinity. The witness has further deposed that he did not call any neighbour to witness the search. According to him, the alimrah from which Sunil had got recovered the rings was a wooden almirah of silver color. He has denied the suggestion that he did not go to the house of Sunil, nor he got any recovery effected or that the documents of the car were recovered from the office of Aone associates. He has also deposed that no public person was joined at the time of seizure of the car and the keys. He has testified that Sunil was arrested at about 6:15 PM but he does not recollect the name of the father of Sunil. According to the witness, in the slip recovered from the possession of the deceased the name of the father of Sunil was mentioned but he does not recollect the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 38 of 124 same. He has admitted that there is a cutting and overwriting on the name of the father of Sunil given in the arrest memo Ex.PW3/F as well as personal search memo Ex.PW3/H. He has denied the suggestion that no documents/ papers were recovered from Sunil alleged. (40) PW17 Ct. Sudhir has in his examination in chief corroborated the testimony of PW16 HC Jogender in toto and has proved the documents already proved by HC Jogender apart from the fact that he was he who had taken the rukka to the police station and got the FIR registered. He has correctly identified both the accused persons in the court and also identified the case property i.e. the Forms M29 and M30 which are Mark X2 to X7; the receipt which is Ex.PW3/5, bunch of key which is Ex.P5; half liquor bottle which is Ex.P6; slip which is Ex.P1, the maruti car which is Ex.P2 and the clothes of the deceased which is Ex.P4.
(41) In his crossexamination, the witness has deposed that no search of the office of accused and deceased was taken on reaching their office after receipt of DD no.34A. According to him, during the period of ten minutes, they had not conducted any proceedings except taking the liquor bottle and had not prepared any memo for the seizure of the liquor bottle. He has denied that there was no liquor bottle or that it was not seized or that it was planted subsequently. The witness has deposed that he had not read the memo Ex.PW3/A for seizure of the slip Ex.P1 St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 39 of 124 before signing the same and similarly he had also signed the other memos referred in his statement without reading the contents thereof. He has also testified that after reaching the spot, neither HC Jogender Singh nor he made any inquiry and has denied that inquiries were made at the spot after reaching there. The witness was confronted with portion mark A to A of memo Ex.PW3/A where it is recorded that during inquiries made by them at the spot, Malkhan Singh also reached there on which the witness has stated that this has been falsely recorded in the memo. He has testified that no mobile phone was found in the pocket of Sultan and has denied that there was a mobile phone in the pocket of Sultan, which was taken by them and retained by HC Jogender. According to Ct. Sudhir, there were one or two persons, who had gathered at the spot after they reached at the spot and there were one or two more persons who had taken the injured to hospital. He has also deposed that they did not give any information of the circumstances at the spot to the police station. According to him, there was no vomit found at the spot and has denied that the vomit was found at the spot as well as on the clothes of the injured Sultan. He has deposed that they had gone to the hospital on their private vehicle after about ten minutes of the injured having been removed from there. The witness has also deposed that from the hospital, he returned to the spot at about 8.00 AM and the crime team reached thereafter.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 40 of 124 (42) He has testified that his statement was recorded by the IO/ SHO Baljeet Singh at the police station at about 11.00 PM and in his statement on 17.06.2005 he told the Investigating Officer that Malkhan met them at Qutab Road when he was coming from the cremation ground but when confronted with the statement Ex.PW17/DA the said fact was not found recorded. He has deposed that the place where the accused persons were arrested is about 700800 meters from the office of AOne Associates. The witness has denied that the accused persons were not arrested from the place stated by him or that they had already surrendered in the police station. He has stated that Malkhan was not with the police party at 6.15 PM, the time when the accused persons were arrested and has stated that Malkhan did not come to the police station on 17.06.2005 at any time but no documents were prepared in the police station on their return after the alleged arrest of the accused persons. According to him the witness has deposed that slip Ex.P1 was not seen by the Investigating Officer and the slip was not with him at the time when his statement was recorded. He has testified that he had not stated the contents of the slip in verbatim to the Investigating Officer/ SHO Baljeet Singh in his statement recorded by him but when confronted with portion A to A the contents of the slip in verbatim has been recorded. He does not remember what were the other documents recovered from the pocket of Sultan, which were handed over by HC Jogender Singh to SI Pooran Pant. He has denied that no disclosure was made by the accused persons and that the car was not St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 41 of 124 seized from the place where accused persons were arrested. According to him, the liquor bottle was not produced by HC Jogender Singh to SI Pooran Pant when he handed over the slip Ex.P1 to him. He has denied that no liquor bottle was even subsequently handed over by HC Jogender Singh to the Investigating Officer or that no bunch of keys was recovered from the pocket of accused Sandeep and that the document related to the car i.e. FORM 29 and FORM 30 were not recovered from the house of Sunil and that the same were found on search of the office of Aone Associates. He does not remember if he had stated to the Investigating Officer in his statement that when he came out of the police station after the registration of the FIR, the SHO met him and he handed over the FIR to him. However, when confronted with statement Ex.PW17/DA where it was not found so recorded. He has denied that he had not taken any rukka to the police station or that no FIR was registered at the Police station as stated by him in his examination. The witness has deposed that SI Pooran Pant made inquiries from Malkhan Singh at about 12.00 in the night in the hospital immediately after he reached the hospital but the statement of Malkhan Singh was not recorded thereafter in his presence at the hospital either by SI Pooran Pant or by the SHO. He has denied that false proceedings have been drawn in this respect and that rukka was subsequently prepared at the police station. According to him, the liquor bottle was not sealed by HC Jogender Singh at the spot. He has denied the suggestion that his statement was prepared by the Investigating St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 42 of 124 Officer of his own and attributed to him.
(43) He has testified that no public person or any neighbourer were asked to join the proceedings by the Investigating Officer before taking the search of the house of accused Sunil where they reached at about 6.30 to 6.45PM. According to him, there are other houses in that vicinity and the Investigating Officer did not call any neighbourer to witness the search. He does not remember as to who had produced the key of the almirah from where the papers were recovered. The witness has further deposed that the almirah was of steel but he does not remember the colour of the almirah. He has denied that he did not go to the house of Sunil nor he got recovered form M29, form M30 and receipt. According to witness Ct. Sudhir Kumar, they remained at the house of Sunil for about 30 minutes and from there, they straight away went to the police station. He does not remember as to which paper was prepared first in time on 17.06.2005. He also does not remember the name of father of the accused Sunil nor is he able to tell whether the name of father of Sunil is Dayanand. The witness further does not remember as to what was the name of the father of accused Sunil was mentioned by Malkhan while giving his statement to SI Pooran Pant. He does not remember that what was the name of the father of accused Sunil was mentioned in slip Ex.P1. The witness has also denied that there is a cutting and overwriting on the name of father of Sunil in the arrest memo Ex.PW3/F as well as personal search memo Ex.PW3/H. He is not aware St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 43 of 124 whether any person by the name of Naresh was present there at the spot alongwith Malkhan when they reached there. According to the witness, he along with HC Jogender went to Braham Shakti Hospital on one motorcycle, which was driven by him and they reached the hospital after about ten minutes of reaching Malkhan Singh. The witness has also deposed that neither the official of the PCR came there nor they were present at the spot when they reached there. He has further deposed that they left the office of Aone Associates and they had not locked or bolted the same and one employee by the name of Chhotu was present there and they left the office in his custody. According to the witness the bottle of whiskey was not produced before the crime team in order to lift chance prints. He has testified that in the presence of crime team, Investigating Officer Inspector Baljeet Singh and SI Pooran Pant had not arrived at the spot but they came after the departure of the crime team. The witness has testified that SI Pooran Pant was having paper and gum, which was used by him while pasting the slip Ex.P1 on the paper. He has stated that the memos were not read over to him by the Investigating Officer/ SI Pooran Pant nor he read the same. He has admitted that slip Ex.P1 is not signed by anyone including Sultan Kanwar the deceased. He has denied that no documents or papers were recovered from the house of accused Sunil as alleged or that Sunil has been falsely implicated in this case. (44) PW18 Inspector Puran Pant is the initial investigating officer of the present case who had deposed that on 17.06.2005, he was St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 44 of 124 posted at Police Station Kanjhawala as Sub Inspector and on that day on the receipt of DD No. 2B, he reached at Braham Shakti Hospital where HC Jogender and Ct. Sudhir Singh met him. According to the witness, HC Jogender Singh handed over the MLC of deceased Sultan to him along with death summary and also produced one note Ex.PW1/A which he (witness) seized vide memo Ex.PW3/A. The witness has further deposed that HC Jogender Singh also produced one bottle of gastric lavage duly sealed with the seal of hospital, which he seized vide memo Ex.PW3/L. According to the witness, Malkhan, brother of deceased met him in the hospital who identified the handwriting on the slip Ex.PW1/A after which he recorded the statement of Malkhan Singh, which is Ex.PW3/B on which prepared rukka Ex.PW18/A and sent the same to the Police Station through Constable. Sudhir Kumar. He has further deposed that the then SHO Inspector Baljeet Singh and Constable Sudhir Kumar along with another constable came to the hospital when Constable Sudhir handed over the copy of FIR and original rukka to Inspector Baljeet Singh, who came to the spot together. According to the witness, since the case was registered under Section 302 IPC, therefore, further investigations of this case was handed over to Inspector Baljeet Singh and he handed over the documents seized by him to Inspector Baljeet Singh. The witness has testified that HC Jogender Singh had produced one liquor bottle stated to have been lifted from the spot, to Inspector Baljeet Singh, who sealed the same with the seal of BS and took the same into St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 45 of 124 possession vide seizure memo Ex.PW16/A. He has testified that Investigating Officer of the case Inspector Baljeet Singh sent HC Jogender and Constable Sudhir to the spot where the message had already been given to crime team to reach there. The witness has further stated that after the SHO made some inquires from Malkhan Singh, he along with Investigating Officer reached at Mortuary, SGM Hospital where the body was got preserved and thereafter, reached the spot along with Malkhan Singh. According to him, the crime team had already inspected the scene of crime and left the spot after which Investigating Officer prepared the site plan at the instance of Malkhan Singh and thereafter Malkhan Singh was relieved from the spot and they came back to the mortuary. He has also deposed that Malkhan had again come in the mortuary and produced the shirt of the deceased Sultan which the Investigating Officer took and sealed the same with the seal of BS and seized the same vide memo Ex.PW3/C. He has further stated that the Investigating Officer conducted the inquest proceedings and after getting the postmortem conducted, the dead body was handed over to Malkhan Singh vide receipt Ex.PW3/D. According to the witness, he received the viscera and clothes along with sample seal from the hospital and produced before the Investigating Officer duly sealed with the seal of hospital, who took the same into possession vide memo Ex.PW16/B. The witness has further proved that he along with Investigating Officer, HC Jogender, Constable Sudhir went to Cremation Ground, Kanjhawala St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 46 of 124 from where after completion of cremation proceedings, Malkhan joined them and they all proceeded for search of accused persons. He has also stated that both the accused persons namely Sunil and Sandeep were apprehended at the instance of Malkhan Singh from road leading to Ladpur Village. According to the witness, after being interrogated they were arrested in this case vide memo Ex.PW3/E and Ex.PW3/F and personally searched vide memos Ex.PW3/G and Ex.PW3/H. He has further proved that the accused Sandeep had produced one bunch of keys having two keys and remote, which according to the accused belong to the car of the deceased after which Investigating Officer took the bunch of keys into possession vide seizure memo Ex.PW3/I. The witness has also deposed that at the instance of both the accused persons, one Alto Car bearing No. DL 4CAA3286 of deceased was taken into possession vide memo Ex.PW3/J. He has stated that the accused Sunil took them to his house and got recovered the documents related to this car i.e. Forms 29, 30 and one receipt Ex.P3/1 to P3/5. He has proved that the Investigating Officer seized the same vide memo Ex.PW3/K after which Investigating Officer recorded the disclosure statement of both the accused persons which are Ex.PW16/C and Ex.PW16/D after which they came back to the police station. He has further stated that on 01.07.2005, he along with Investigating Officer and the draftsman came to the spot where complainant Malkhan Singh came there where at the instance of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 47 of 124 Malkhan Singh draftsman SI Manohar Lal took the rough measurements and notes and came back to the police station. He has testified that on 11.07.2005 on the directions of SHO, he went to concerned court at Tis Hazari Courts and after taking permission from the Hon'ble Court, he took the specimen handwriting and signatures of accused Sandeep and specimen handwriting of accused Sunil which are Ex.PW18/B1 to Ex.PW18/B16 and Ex.PW18/B17 to Ex.PW18/B24. According to the witness, on 01.08.2005 he joined the investigations of this case and went to State Bank at Kanjhawala and met the manager of the said bank. He has proved having issued notice under Section 91 Cr.P.C. to him and collected the account opening form in the name of Sultan Kanwar which is Ex.PW7/A which was taken into possession vide memo Ex.PW7/C. He has further stated that on 16.08.2005 on the directions of Investigating Officer, he went to Pasco Motors and collected the warning letter mark PX1 and commitment check list mark PX2 which he seized vide memo Ex.PW18/C. (45) He has correctly identified both the accused Sunil and Sandeep in the Court and has also identified the case property. (46) In his crossexamination the witness has deposed that he had not sent the slip Ex.P1 to the FSL for comparison of handwriting and has voluntarily explained that the Investigating Officer Inspector Baljeet Singh had sent the same to FSL. The witness has deposed that he had St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 48 of 124 filed the application before the Ld. MM for permission to take the sample handwriting of the accuse d pending investigations of the case. According to him, the copy of DD entry was received by him at 1:40 midnight when he proceeded for investigations of the case as he was on emergency duty on the said day. The witness has deposed that he had only received the information by the DD and not from HC Jogender Singh who had left for the spot and has explained that the DD entry had been lodged on the basis of the information received from the hospital. According to him, he reached the hospital at about 2:15 AM (midnight) and made inquiries from HC Jogender and also met Malkhan Singh. He has denied the suggestion that he had reached the hospital before 12 midnight and that the statement of Malkhan was not recorded at the hospital. He has also denied the suggestion that no rukka was sent for registration of the FIR and that the statement of Malkhan was prepared in the police station on the next day and the rukka and FIR are ante dated/timed. The witness has testified that when the slip Ex.P1 was handed over to him by HC Jogender Singh, Malkhan was also present in the hospital along with HC Jogender Singh and the memo Ex.PW3/A for seizure of slip Ex.P1 was read by HC Jogender Singh and Ct. Sudhir before they signed the same. According to him, HC Jogender was not carrying any liquor bottle in his hands at the time when he produced the slip Ex.P1 to him and the statement of Malkhan Singh was recorded after the seizure of the slip Ex.P1. The witness has further deposed that the slip Ex.P1 was taken St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 49 of 124 into possession by him at about 2:30 AM (intervening night of 16/17.6.2005). He has also stated that the SHO reached the hospital at about 6:30 am and he (witness) did not conduct any proceedings between the time when he sent the rukka at 4:15 am and till the SHO arrived at 6:30 am. He has denied that he did not record any statement of Malkhan between 2:30 am and 4:15 am as stated above. He has denied that Naresh a friend of Malkhan, was also present with him and he made inquiries from him also. He has further deposed that there was one poultry farm near the office of Aone Associates at a distance of about 100 Meters and there is a petrol pump also near the office of Aone Associates at a distance of about 50 meters. The witness has also deposed that ahead of petrol pump, there are other offices and residential houses which were inhabited. He has testified that after reaching the hospital, he did not contact any doctor in this case. He has also deposed that after reaching the hospital and making the enquiries, he did not inform the SHO about the facts and circumstances of the case. He has denied the suggestion that HC Jogender Singh did not produce any liquor bottle to the SHO in the hospital or that the liquor bottle was subsequently planted in this case. The witness has also denied the suggestion that the liquor bottle was not seized by him from HC Jogender Singh as he did not have any liquor bottle with him when he met him in the hospital. He has further deposed that Malkhan was joined by them at about 5.00 PM on 17.06.2005 from the cremation ground and they did not come to the police station after St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 50 of 124 joining him. According to the witness Inspector Puran Pant no documents relating to this case i.e. the seizure and recoveries etc. were prepared in the police station. He has denied the suggestion that the accused persons surrendered in the police station in the forenoon of 17.06.2005 or that they were not arrested from the place stated by him. He has also deposed that they asked the passers bye to join but they refused and is further unable to give the particulars of any one of those persons who were asked to join the investigations. He has denied the suggestion that no bunch of keys was recovered from accused Sandeep. The witness has testified that he himself and the SHO had gone to the office of Aone Associates on 17.06.2005 at about 9.30AM when the search of the premises of AOne Associates was taken by the SHO. He has denied the suggestion that the documents (form 29, form 30 and the receipt) relating to car were recovered from the office of Aone associates and that the same were not recovered from accused Sunil. He has deposed that the car was at a distance of 500 meters from the place of the arrest of the accused persons. The witness has also deposed that they went to the office premises of Aone associates on 17.06.2005 at about 9.30AM they remained at the spot for about 1 ½ hours and they asked some persons to join the investigation for the search of the office premises but none joined them. He has further testified that no one was called from the petrol pump to join the investigations and search of the office premises. He has denied the suggestion that no disclosure St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 51 of 124 statement was made by the accused persons or that the same have been fabricated or that the production of the shirt allegedly of the accused has been fabricated in this case to create evidence against accused persons in this case.
(47) In his further crossexamination the witness has deposed that memo Ex.PW3/K for seizure of document relating to the car was prepared at the house of Sunil in the present of HC Jogender Singh though he has admitted that it does not bears the signature of Jogender Singh. According to the witness, there was no vomit at the place of incident when they went there at about 9.30AM on 17.06.2005. He has also deposed that Malkhan remained with the police party till about 11.00AM, on 17.06.2005 and they did not find any person including the servant present at Aone associates. He has further testified that all the memos including the site plan are scribed by him at the dictation of the SHO. He has admitted that there is a overwriting and the word "Ek" has been converted into "Do". He is unable to tell if this overwriting was done by him or by somebody else. According to the witness, paper and gum which were used for pasting the slip Ex.P1 were with him. He has admitted that in the slip Ex.P1 the name of father of Sunil is mentioned as Nand Lal or that in the statement of Malkhan Ex.PW3/B the name of the father of Sunil is mentioned as Nand Lal. The witness has further deposed that the disclosure statements of accused persons are also in his hand which were written on the dictation of the SHO. According to him, St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 52 of 124 they reached the house of Sunil at about 7.15PM and remained there for about two to two and a half hours. He has stated that wife of Sunil was also present there at that time but he is unable to tell about the other family members. The witness has further deposed that there are other house adjacent to that house but none was called by them to join the proceedings before taking the search of the house. According to the witness, papers were taken out from an steel almirah of grey colour which almirah was lying open at that time. He has admitted that there is a cutting and overwriting on the name of the father of Sunil mentioned in the arrest memo Ex.PW3/F as well as personal search memo Ex.PW3/H which cuttings are in his handwriting. The witness has denied the suggestion that later on they came to know the name of father of Sunil as Daya Nand and accordingly the same was overwritten and changed. He has testified that no finger prints from the chair, table or the liquor bottle were lifted by them. He has denied that no documents/ papers were recovered from the house of Sunil or that Sunil has been falsely implicated in this case.
(48) PW19 Inspector Baljeet Singh is the Investigating Officer of the present case who has deposed that on the intervening night of 16/17.06.2005 he was posted as SHO Kanjhawala and on that day he was on patrolling duty and returned to the police station when in the morning at about 6.15 am Ct. Sudhir met him on the way to the police station and informed about the registration of this case. The witness has deposed that St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 53 of 124 Ct. Sudhir handed over the copy of the FIR Ex. PW1/A and the original tehrir Ex.PW3/B to him on which he reached Brahm Shakti Hospital where HC Joginder and SI Puran met him along with one Malkhan after which SI Puran Pant handed over to him the death summary papers which are Ex.PW5/A in respect of the deceased Sultan and other relevant papers. The witness has proved that SI Puran also handed over to him a gastric lavage bottle duly sealed with the seal of the hospital BSH along with the seizure memo of the same which is Ex.PW3/L and In the meanwhile HC Joginder also hand over to him one half filled unsealed bottle of 375 ml of Director Special Whiskey which bottle was converted into a pullanda with the help of a cloth and sealed with the seal of BS which seal was handed over to SI Puran and thereafter he prepared the seizure memo of the bottle vide memo Ex. PW16/A. According to him, he informed the Crime Team through wireless to reach the spot of incident and in the meanwhile he directed HC Joginder and Ct. Sudhir to reach the spot of incident as the crime team was to inspect the same. He has proved having made an application to the CMO Sanjay Gandhi Memorial Hospital for conducting the postmortem which application is Ex.PW19/A and after preparing the inquest papers, he deposited the body in the mortuary of the hospital and left Ct. Manish to ensure the preservation of the body. He has proved having prepared the inquest papers which are Ex.PW19/B (collectively running into 13 number of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 54 of 124 pages including MLC). Thereafter he along with SI Puran Pant and Malkhan reached the spot of the incident AOne Associates, Kanjhawala, Karala Road, where HC Joginder Singh handed over the crime team report Ex.PW19/PX to him prepared by SI Subhash Chand. The witness has also proved having prepared the site plan at the instance of Malkhan Singh vide Ex.PW19/C after which Malkhan was relieved. According to the witness, he thereafter went to the mortuary of Sanjay Gandhi Hospital where Malkhan was also present with his family members and he handed over to him white colour Kurtanuma shirt which was torn as the same belonging to his deceased brother Sultan which he (deceased) was wearing on the day of the incident when the quarrel took place. The witness has proved that he converted the shirt into pullanda and sealed the same with the seal of BS by taking the seal from SI Puran Pant and thereafter handed back the seal to him and prepared the seizure memo of the shirt which is Ex.PW3/C. He has also deposed that the dead body was identified by the brother of the deceased Malkhan (Ex.PW19/B collectively at page 10 & 11) and after postmortem the dead body was handed over to Malkhan vide receipt Ex.PW3/D which was prepared by him. According to the witness, the doctor conducting postmortem also handed over to SI Puran Pant viscera in a sealed condition with the seal of DSP and also a packet containing the clothes of the deceased also sealed with the seal of DSP along with the sample seal after which the above articles were handed over to him by SI Puran Pant and he prepared the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 55 of 124 seizure memo Ex.PW16/B. He has proved having collected the postmortem report of the deceased Sultan after which he returned to the area along with his staff where Malkhan met him after the cremation of his brother near the cremation ground and they went together with him for the search of the accused persons. The witness has deposed that when they reached the main road KanjhawalaLadpur Road on the pointing of Malkhan accused Sandeep and Sunil were apprehended on the road itself and they were both interrogated and during interrogation the accused Sandeep produced the key of Alto Car DL4CAA 3286 from his pocket and the remote control of the car along with the key of the gear box which he (witness) seized vide memo Ex.PW3/I. He has also deposed that prior to the seizure of the keys he arrested both the accused persons vide memos Ex.PW3/E and Ex.PW3/F and thereafter the personal search of the both accused were conducted vide memos Ex.PW3/G and Ex.PW3/H. He has testified that the Alto car was parked on the road itself and the same was seized by him vide memo Ex.PW3/J after which accused Sunil took the police to his house from where on the ground floor the documents i.e. forms 29 and 30 in duplicate along with one paper were got recovered by Sunil from a steel almirah which were also seized vide memo Ex.PW3/K which documents are Ex.P3/1 to P3/5. The witness has explained that these memos were prepared by SI Puran Pant on his dictation and thereafter the disclosure statement of accused persons St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 56 of 124 were recorded which are Ex.PW16/C and Ex.PW16/D after which they came back to the police station along with the accused persons. The witness has proved having deposited the case property with the malkhana along with the seizure memos and the accused persons were sent for medical examination and the information of their arrest was conveyed to their family members.
(49) Inspector Baljeet Singh has further deposed that on 01.07.2005 he got the scaled site plan Ex.PW11/A prepared through draftsman where Malkhan was also present. He has testified that on 11.07.2005 he deputed SI Puran Pant to seek permission from the Ld. MM for getting the specimen signatures/ handwritings of the accused persons who thereafter handed over the specimen signatures/ writings of the accused persons to him which specimen handwriting/ signatures along with forms 29 and 30 were sent to FSL for comparison through Ct. Davinder on 29.07.05 and the report of the handwriting expert was collected which is Ex.PW19/E. According to the witness, on 01.08.05 on his direction SI Puran Pant collected the account opening form from SBI Kanjhawala in respect of the account of the deceased and during the investigation the call details of the deceased were collected which were filed along with the charge sheet. He has testified that on 16.08.05 on his direction SI Puran Pant also collected the documents relating to the Alto car from Pasco Motors. The witness has deposed that he sent the documents along with the questioned documents to the FSL and after St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 57 of 124 obtaining the report from the FSL he placed the same on record and submitted alongwith the charge sheet. He has further testified that the viscera that was handed over by the postmortem doctor was also sent for examination at FSL Rohini through Ct. Kuldeep Singh and the report was also collected and placed on the record along with the charge sheet. He has proved having collected the FSL result which is Ex.PW19/D and having obtained the subsequent opinion regarding cause of death based on the FSL report which is Ex.PW6/B. The witness has deposed that he recorded the statements of the witnesses and after completion of the investigation, he submitted the charge sheet in the Court. He has correctly identified both the accused in the Court. (50) In his crossexamination the witness has deposed that at the time of arrest of the accused they were on foot and some people were asked to join the police before the arrest of the accused persons and their search but they refused to join the investigation. He is unable to give the particulars of any one of them. He has denied the suggestion that the arrest of the accused persons have been falsely shown by them or that they had already surrendered in the police station in the forenoon of 17.06.05. He has also denied the suggestion that they did not go anywhere for the search of the accused persons. According to him, Malkhan met them near the cremation ground on 17.06.05 at about 5.00 pm and was joined from there. He has testified that on 17.06.05 he did not go to the cremation ground at any time nor does he remember if there St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 58 of 124 was any information received by him with regard to any quarrel/ dispute with Malkhan of some other persons. The witness has further deposed that the shirt of the deceased was produced by Malkhan at mortuary on 17.06.05 between 11.00 am to 12.00 noon. He has denied the suggestion that Malkhan was not present at the mortuary during the aforesaid time or that the shirt has been planted to create false evidence. The witness has also denied that no key of the car was produced/recovered from the personal search of accused Sandeep or that the car was also not recovered from the place stated by him and false documents have been prepared in this regard to create false evidence. He has also denied the suggestion that Malkhan had come to police station on 17.06.05 and documents relating to seizure etc. were got signed from him in the police station. (51) According to Inspector Baljeet Singh on 17.06.05 he went to the office of AOne Associates at about 9.00/9.30 AM. He has denied that the crime team was still there when he reached or that the photographs were taken by the crime team on his directions. According to the witness, he remained at the spot for about 30 45 minutes. He has stated that the search of the office premises of Aone Associates was conducted by him during his stay there. The witness has testified that he tried to join persons from the surrounding to join the search but nobody was willing to join. He has denied the suggestion that the documents relating to the car i.e. Forms 29 and 30 and the receipt were not recovered from the accused Sunil and that the Forms 29 and 30 were recovered from St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 59 of 124 the office premises. According to him, there was no indication that Sultan had vomited there in the office nor HC Jogender Singh and Ct. Sudhir Kumar told him that there was vomiting in the office which had been washed. He does not remember if he had read in the crime team report that vomited material had been sweep/ cleared. The witness was confronted with the crime team report Ex.PW19/PX where as portion A to A the fact relating to sweeping/ cleaning of the office room was mentioned, on which the witness has stated that he did not make any investigation/ inquiry with regard to vomiting or cleaning thereof in the office room. He has further deposed that he did not meet any servant who was working in the office of Aone Associates nor the Head Constable and the Constable told him that the servant of the office was present there. He has denied the suggestion that inquiries were made from the servant working in the office of Aone Associates and his statement was also recorded but since the statement made by the servant did not suit the prosecution case, the same has been malafidely withheld by him. The witness has further deposed that he did not try to get the finger prints lifted from any article lying in the office of the Aone associates and has voluntarily explained that the crime team had already inspected the scene of crime. According to the witness, he did not ask the crime team after they had inspected the spot to look for any chance prints in the office of AOne Associates. He has further deposed that he did not ask the crime team to lift any chance prints from the liquor bottle which he had seized, St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 60 of 124 having been produced by HC Jogender Singh. The witness has also deposed that HC Jogender Singh was not carrying the liquor bottle in his hand when he met him in the hospital and has brought the same from his motorcycle. He has denied the suggestion that no liquor bottle was produced by HC Jogender Singh having been found from the office of A One Associates or that the same has been subsequently planted to create a false evidence. The Investigating Officer has deposed that he was on duty since morning in police station Kanjhawla on 16.6.2005 and was carrying a mobile with him on that day. According to him, he left for patrolling at about 12 in the night intervening 16/17.6.2005. He has admitted that a report in relation to this incident had already been received in the police station at about 9:15 PM i.e. before he left for patrolling but has denied that after the receipt of this information he had also gone to the spot. According to the witness, he was not informed by HC Jogender Singh, Ct. Sudhir Kumar or by SI Puran Pant that Sultan, the victim in this case, had died. He has denied the suggestion that he had reached Brahm Shakti Hospital at about 12 O'clock in the night of 16/17.6.2005 or that Malkhan made a statement at about 12 night of 16/17.6.2006. The witness has also deposed that he did not meet any person by the name of Naresh, accompanying Malkhan Singh.
(52) In his further crossexamination the witness has deposed that he had made an entry in the daily diary of police station Kanjhawala regarding his return to the police station after investigation on 17.06.05. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 61 of 124 According to him, he had not mentioned in the said daily diary report regarding the recovery of the car or of the keys of the car or the car documents. He has denied the suggestion that he was already in the police station before 10.15 pm, which is the time mentioned in the daily diary entry for his return to the police station. He has testified that the accused persons were arrested at 6.15 pm on 17.06.05 in the presence of Malkhan. The witness has testified that he had signed on the memo Ex.PW3/K after the other witnesses had signed the same and has admitted that the memo Ex.PW3/K do not bear the signatures of Jogender Singh although he is cited as a witness to the memo at serial no.
2. He has denied the suggestion that all the memos were subsequently falsely prepared and the signatures of the witnesses were obtained subsequently. He has stated that the slip Ex.P1 was also sent to Handwriting Expert of the FSL for comparison with the admitted signatures of the deceased and the report in this regard is also received from the Handwriting Expert but he does not remember if he had filed that report alongwith the charge sheet and states that subsequently this report had been filed. According to the witness, the spot of the incident was not preserved from the time when HC Jogender Singh alongwith Ct. Sudhir Kumar went to the spot on receipt of DD No. 34A till the time he investigated the case on 17.06.05 evening or thereafter. He does not remember if he had made any investigation with regard to the alleged Jhagra on 16.06.05 between the deceased and the accused or the shirt of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 62 of 124 deceased getting torn. The witness has testified that he had read the memo Ex.PW3/A regarding the seizure of the slip by SI Puran Pant in Brahm Shakti Hospital itself when it was handed over to me by SI Puran Pant on the night intervening 16/17.06.05 in which memo it has been recorded that during the course of inquiries by HC Jogender Singh, Malkhan Singh, the brother of deceased reached the spot. He has denied the suggestion that since there was no evidence involving the accused persons, he changed the entire version by making Malkhan as a witness having come to the spot before the arrival of HC Jogender Singh and Ct. Sudhir Kumar or the deceased talking to him (Malkhan). He has further denied the suggestion that the servant working at the office of Aone Associates disclosed to him on inquires that Sultan had come to the office when he was drunk and on his condition getting deteriorated, he informed the brother of the deceased. The witness has testified that he did not collect any evidence with regard to the source of procuring the liquor consumed by the deceased nor he made any inquiry with reference to the liquor having been consumed by Sultan at Murgi farm which is located at a distance of about 5060 yards from the place of occurrence across the road or nearby the Murgi farm. The witness has further stated that DD No. 2B dated 17.06.05 Police Station Kanjhawala mentions "Jisco Murgi Farm Kanjhawala me Dawai Pilayee Thee" and has voluntarily explained that there is no need for inquiry as the person who took that alleged "Dawai" had expired and DD No. 34A was already recorded regarding St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 63 of 124 the same person. The witness has denied the suggestion that the accused persons had not made any disclosure statements or the same have been fabricated.
(53) The witness Inspector Baljeet Singh has further deposed that he did not not examine any official of PCR nor had he taken into possession the copy of DD entry of PCR or form of PCR regarding the information. He has admitted that in the site plan Ex.PW19/C, there is an overwriting and the word "Ek" has been converted/changed into "Do". He has explained that the site plan was prepared by SI Puran Pant and the word "Ek' to "Do" was changed by him after going through the contents of the marginal notes of the site plan. According to him, it was mentioned in the case diary that the site plan was prepared but he does not remember if he mentioned "Ek" room or "Do" room in that case diary and after after going through the case diary No.1 dated 17.06.05 the witness has stated that it is mentioned as "Ek" Kamra and not "Do" Kamra. He has testified that they went to the house of accused Sunil at about 7.00 or 7.15 pm on 17.06.05 which house is situated backside of water tank near Kanjhawala Chowk. According to him, the neighbourers were asked to join the proceedings but they refused. He does not remember whether apart from the wife of accused the other family members were present in the house or not. The witness has also deposed that he had not prepared any site plan regarding the recovery of the papers of the Alto Car and has denied the suggestion that they did not go to the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 64 of 124 house of Sunil or that no recovery of the documents as alleged was affected from there. He has admitted that there is a cutting and overwriting on the name of the father of Sunil mentioned in arrest memo Ex.PW3/F and personal search memo Ex.PW3/H. The Investigating Officer has deposed that the accused Sunil disclosed the name of his father as Dayanand and has denied that after writing the name of the father as Nand Lal, the same was changed to Dayanand. According to the witness, the accused Sunil disclosed that his father was known as Nandey @ Nand Lal. He has admitted that in the slip Ex.P1 the name of father of Sunil is mentioned as Nand Lal. He has further deposed that in the rukka Ex.PW3/B the name of the father of Sunil is mentioned as Nand Lal only. He has denied the suggestion that accused Sunil has been falsely implicated in this case.
(54) The witness Inspector Baljeet Singh (now ACP DE Cell) was recalled for additional examination wherein he has deposed that on 18.1.2012 he made a request at FSL Rohini regarding FSL result qua Sunil and the detailed report in this regard is Ex.PW19/PX1 in which it was clarified that none of questioned writings/ signatures marked Q1 to Q21 could be connected with the specimen writings/ signatures marked S17 to S24 attributed to Sunil. According to the witness, he also made a request to Reliance Communication Ltd. seeking the mobile phone number active on the device No. RSNRSSHSA 002721912 and in this regard a report was given by the Alternative Nodal Officer Sh. Sanjeev St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 65 of 124 Lakra which report is Ex.CW1/A and the activation details of the said mobile are Ex.CW1/B. He has deposed that the aforesaid device number is belonging to the mobile which he seized from the accused Sandeep at the time of his arrest. In his crossexamination the witness has deposed that the aforesaid device number is linked to mobile number 9312474143 which was active on 17.6.2005.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(55) After completion of prosecution evidence the statements of both the accused were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them, which they have denied. The accused Sandeep has stated that the deceased Sultan owed money to various persons of the village as plots belonging to them were sold through him (Sultan). According to the accused Sultan owed money to him also which he had obtained as loan for purchase of the car and was avoiding to repay the same to the persons to whom he owed the money and a meeting of the elder persons of the village was held in which Sultan agreed to sign on the car documents in his favour.
The accused has further stated that he had kept those documents in the office of AOne Associates from where the police had recovered and falsely planted on Sunil to create false evidence. He has also stated that he is innocent and has been falsely implicated and they did not make Sultan to drink liquor as alleged. He has stated that the contents of the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 66 of 124 slip are false and the liquor bottle has been planted in this case. According to the accused, they did not go to the hospital nor they obtained the signatures of Sultan on any document in the hospital. He has denied that there was any quarrel/ fight between them and Sultan in the evening of 16.6.2005 or that the shirt of Sultan was torn. The accused has also stated that he himself appeared before the police in the morning of 17.6.2005 at Police Station Kanjhawla and he remained in the custody of police thereafter. He has denied having made any disclosure statement to the police.
(56) The accused Sunil has stated that he is innocent and has no concern with the business of Property Dealer and had nothing to do with the business of AOne Associates. According to him, the documents relating to the car were neither recovered from him nor the same was got recovered by him from his house, rather the same were recovered by the police from the office of M/s. AOne Associates and falsely placed on him. He has further stated that he did not make any disclosure statement as alleged and at the relevant point of time he was working as a casual labourer in NDPL. According to the accused, his father's name is Dayanand and his father is not known by the name 'Nandey @ Nand Lal'. The accused has further stated that he used to visit the office of M/s. A One Associates since he was known to Sandeep as well as the deceased Sultan and he has been falsely implicated as the name of Sunil appeared in the slip. According to the accused, they did not go to the hospital nor St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 67 of 124 they obtained the signatures of Sultan on any document in the hospital. He has denied that there was any quarrel/ fight between them and Sultan in the evening of 16.6.2005 or that the shirt of Sultan was torn. The accused has also stated that he himself appeared before the police in the morning of 17.6.2005 at Police Station Kanjhawla and he remained in the custody of police thereafter.
(57) The accused have examined four witnesses in their defence. DW1 Om Prakash is a neighbour of the accused and is known to the accused Sandeep and Sunil. He has deposed that Sultan (now deceased) S/o Jeewan who used to deal in property business also used to reside in village Kanjhawala and he knew him for the last about 2022 years. According to him, Sultan used to get the deals settled for sale of the property of the people in Kanjhawala on a commission basis and later on he (Sultan) started the property dealing business in partnership with the accused Sandeep. He has further deposed that about four months prior to the incident of the death of Sultan, accused Sandeep and some other persons of the village complained that Sultan owed money to them which he was not returning despite various demands and his promises to repay, which complaint was made to him and Sh. Dal Chand who was a retired Head Master who has now expired. The witness has further deposed that they called Sultan and made enquiries from him with regard to the repayment of amount to Sandeep which he had taken from him when Sultan expressed that he was in short of money and would arrange to St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 68 of 124 repay the same to Sandeep within a month but even after a month had elapsed Sultan did not return the money to Sandeep on which Sultan signed the documents of his car in favour of Sandeep. According to the witness, Sultan did not return the money which he owed to others also and later they came to know that Sultan had died. The witness has further deposed that he knew accused Sunil S/o Sh. Daya Nand who is residing near his house. He has also deposed that Daya Nand was known by the name of Daya Nand and was never known as Nand Lal or Nandey. According to the witness, there was another person by the name of Nandey in village Kanjhawala who had died long back. (58) In his crossexamination by the Ld. Addl. PP for the State he has deposed that he had retired from DTC in the year 2008 and presently he is a farmer. He has testified that Sultan was a Dhobi by profession and was residing at Kanjhawala. According to him, Sunil did not do anything however Sandeep was in Delhi Police. He has admitted that while in service of the Delhi Police, Sandeep used to do the business of property dealing and has an office in front of Murgi Farm at Mahavir Vihar, Main Qutub Garh Road. He is unable to tell the name under which Sandeep was running his property dealing business. According to the witness, initially only Sandeep used to run business but later on Sultan joined the same and no partnership deed was written in my presence. He is unable to tell whether this partnership deed was written or oral. The witness has deposed that he is not a witness regarding any transaction St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 69 of 124 between Sandeep and Sultan and it was Sandeep who told him that Sultan had owed him money and was not returning the same. He has also deposed that Sandeep had not given any money to Sultan in his presence and did not tell him if he had given the money to Sultan in the presence of any person. According to the witness, he and Sandeep belong to same community but he is not related to Sandeep and is known to him by village relationship. He has deposed that the entire conversation took place while sitting in the temple as Sultan was also residing near the temple. He has admitted that Sultan had not written any document in his presence regarding handing over his car to Sandeep and has voluntarily explained that he was only told about it by Sandeep. He has admitted that he had never seen these documents. According to him, Daya Nand was not related to him and was residing in a different gali whereas he resides at a quite distance from his house. He has testified that it is not in his knowledge that the father, grand father or family members of Daya Nand used to call him as Nand Lal or Nandey. He is unable to tell what was the name entered into the school records of Daya Nand or in his employment record i.e. whether it was Nand Lal, Nandey or Daya Nand. He has admitted that the person Nandey who had expired long back did not have any son by the name of either Sunil or Sandeep. The witness has also deposed that he only knew that the name of one of his son is Raj Singh and he is not aware about the other son. He has denied the suggestion that he has deposed falsely at the instance of Sunil and Sandeep as her is St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 70 of 124 having good family relations with them.
(59) DW2 Sh. Hari Om Sharma, Special Assistant, State Bank of India, Kanjhawala, Delhi has deposed that Sandeep resident of village Kanjhawala is having a saving account bearing No. 01190013158 in Kanjhawala Branch of State Bank of India which is an old account. The witness has placed on record the certified copy of statement of aforesaid account in the name of Sandeep for the period March 2005 which statement of account is Ex.DW2/A bearing the signatures of Sh. Dvitiya Kumar, Branch Manager in respect of certifying it to be a true copy. The witness has also placed on record the forwarding letter from the aforesaid Sh. Dvitiya Kumar addressed to this Court which is Ex.DW2/B. In his crossexamination the witness has admitted that the record Ex.PW2/A is not generated by him and he has brought the same to the court on the instructions of the Branch Manager.
(60) DW3 Sh. Naresh Kumar UDC from the Office of Assembly Constituency - 8, Mundka, Delhi has produced the electoral list of Assembly Constituency8, Mundka, North West Delhi published on 30.10.2010 wherein the name of Sunil Kumar S/o Dayanand, R/o H.No. J51, Uday Vihar, Village Kanjhawala is listed at S. No. 1309 in electoral Roll Part No.11 also bearing the photograph also of the aforesaid Sunil Kumar, true copy of which is Ex.DW3/A which is certified by Sh. Harinder Singh, A E R O (NW)AC08, Mundka, Kanjhawala, Delhi. According to the witness, Identity card number of the aforesaid Sunil St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 71 of 124 Kumar S/o Dayanand is EPIC No. IPN 0117309 which is the individual number allotted to the individual voter. He has not been crossexamined by the Ld. Addl PP for the State despite opportunity in this regard. (61) DW4 Col. A. K. Sachdeva, Nodal Officer, Reliance Communications Ltd. has placed on record the call details of mobile number 9312474143 of dated 16.06.2005 which is Ex.DW4/A running into two pages; the cell I.D. Chart of the said telephone for the said period which is Ex.DW4/B1 to B28 (28 pages in all). According to the witness, as per record the location of the said telephone at about 9:24 PM (21:24:15) which shows the BTS as 63 and MSC2. He has testified that the BTS63 shows the location at that time at Rohini, New Delhi and the BTS67 is North of Kanjhawala, area Prem Piau, New Delhi. (62) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that the documents Ex.DW4/B1 to Ex.DW4/B28 are computer generated which does not bear signature of any official however same bears the office seal at point A. He has further deposed that the data is transferred to Archive (tape) and he has no personal knowledge about the subscriber of the aforesaid telephone. According to him, the verification report if any in this case is not available in the record therefore the same cannot be produced in the court. He has denied the suggestion that the aforesaid documents are not genuine. He has further stated that the certificate under Section 65 of Evidence Act cannot be given in this case.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 72 of 124 Court witness:
(63) This Court has examined Manish Kumar Sharma, Deputy Manager (Customer Service), Reliance Communications as CW1 who has deposed that on the request of Sh. Baljeet Singh, ACP, DEC Cell, Delhi, he has brought the details of the device RSN No. RSSHSA002721912. According to him, as per record this device was found linked to prepaid MDN having mobile No. 9312474143 and the detail in this regard is Ex.CW1/A. He has testified that this number was activated on 16.02.2005 to 16.11.2005 on this device and the said mobile number is still in activation on the SIM since 28.07.2006 and as per record same is not in use presently. He has placed on record the copy of the activation record which is Ex.CW1/B. According to him, the aforesaid data was retrieved recently after the receipt of the request from ACP, DEC Cell, Delhi.
(64) In his crossexamination by the Ld. Counsels for the accused the witness has deposed that the aforesaid mobile number 9312474143 is active on a different device/SIM which is RECRUC036897805 with effect from 28.07.2006.
FINDINGS:
(65) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written synopsis/ memorandum of arguments filed on behalf St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 73 of 124 of the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the various witnesses examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES:
1. Malkhan Singh He is the brother of the deceased and the complainant in
(PW3) the present case. He has deposed on the following
aspects:
1. That his brother namely Sultan Kanwar had opened the office of property dealer in the name and style of AOne Associates along with Sandeep S/o Ram Chander and Ajay S/o Ram Chander near Pooja Filling Station at Karala road and all of them were having equal shares in the said office.
2. That on 22.03.05 his brother purchased a new Alto car bearing registration No. DL4CAA3286 and on 29.03.05 his brother and accused Sandeep and Ajay had purchased the above said office.
3. That on 09.06.05 in the night his brother was got admitted in the Care & Care Hospital, Rohini as he was suffering from Typhoid when his brother told him that both Sandeep and Sunil came drunk and had a fight with him (Sultan) on the pretext that in one of the property transactions he had taken more share, whereas he was not entitled to it and therefore got his signatures forcibly on a blank sale paper and also threatened him that they would not let him live.
4. That he advised Sultan to lodge an FIR against both the accused but Sultan replied that he would talk to the accused after collecting people from the native village.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 74 of 124
5. That on 16.06.06 at about 10 AM they (accused) went to the house of Sultan and took away Sultan on the pretext of settlement of money.
6. That at about 7:00 PM in the evening Sultan had a fight with Sandeep and Sunil in which his shirt was torn and he (Sultan) asked him (witness) to bring another shirt to the office.
7. That when he went to give the shirt to his brother at his office, his brother took the shirt by just opening the door when he saw both the accused present there and when he inquired about the tiff with the accused they replied that some altercation had happened there but Sultan asked him to go home.
8. That thereafter he came back to his house with the torn shirt and at about 9 PM somebody telephoned him at his house that his brother Sultan was lying unconscious after having consumed liquor on which he reached at his office and found Sultan lying half bent on the ground and when he (witness) lifted him he (his brother) informed him that Sandeep and Sunil had given him some drink.
9. That when he started to remove him (injured/ deceased) to the hospital, two police officials came and they took out a slip from the pocket of Sultan after which they asked him to sit in a vehicle for taking him to the Brahm Shakti Hospital.
10. That police personnel showed him that slip in the hospital according to which his (Sultan's) life was under threat at the hands of the accused.
11. That the said slip which is Ex.P1 was written by his brother and was taken into possession vide seizure memo Ex.PW3/A and one small bottle was handed over by the doctor to HC Jogender.
12. That the doctor declared his brother dead at 10:45 PM and SI Puran Pant came in the hospital and recorded his statement which is Ex.PW3/B.
13. That HC Jogender handed over the slip and small bottle to SI Puran Pant.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 75 of 124
14. That the bottle of liquor Directors' Special was also recovered from the office of his brother.
15. That at about 4:00 AM in the morning the SHO came to the Brahm Shakti Hospital when SI Puran Pant handed over slip and two bottles to the SHO who again recorded his statement after which he along with the SHO and other police officials took the dead body of Sultan to Sanjay Gandhi Memorial Hospital.
16. That SHO inquired him about the torn shirt on which he telephoned to his house and asked for the torn shirt after which the same was handed over to the SHO at SGM Hospital which was wrapped in some paper and taken into possession vide seizure memo Ex.PW3/C after which they came back to the office.
17. That he identified the dead body of his brother after which the same was handed over to him vide handing over memo Ex.PW3/D.
18. That the dead body of his brother was buried on 17.06.05 at about 6:45 PM after which he along with other police officials searched for both the accused and went to their respective houses but they were not found there.
19. That both the accused were arrested on the way from Kanjhawala to Lad Pur vide arrest memos Ex.PW3/E and Ex.PW3/F and their personal search was conducted vide Ex.PW3/G & Ex.PW3/H.
20. That the key of the Alto car was recovered from Sandeep which was taken into possession vide memo Ex.PW3/I and the car which was recovered from accused Sunil was taken into possession vide memo Ex.PW3/J; documents of Alto car were recovered from the possession of accused Sunil and same were taken into possession vide memo Ex.PW3/K.
21. That a bottle which was handed over to the doctor by HC Joginder Singh was taken into possession by the Investigating Officer vide memo Ex.PW3/L. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 76 of 124
22. That his brother Sultan was having mobile phone bearing No. 9313639970 and after his death mobile phone was used by him and the phone has the same SIM card which was used by his brother.
He has identified his signatures on the document Ex.PW3/J at point A and the documents recovered from accused Sunil vide recovery memo Ex.PW3/K are Ex.P3/1, Ex.P3/2, Ex.P3/3, Ex.P3/4 and Ex.P3/5 and the documents Ex.P3/1 to Ex.P3/4 which bear the signatures of Sultan at point Q1 to Q4 respectively. He has identified both the accused Sunil and Sandeep in the Court and has also identified the Alto car bearing No. DL4CAA3286 which is Ex.P2; one shirt of white colour having the label of Kumar which is Ex.P4 and key of the Alto maruti car which is Ex.P5.
2. Prem Singh He is the brother in law (Sala) of the deceased and has (PW4) proved having identified the dead body of Sultan at Brahm Shakti Hospital vide statement Ex.PW4/A .
MEDICAL EVIDENCE
3. Dr. Sudip Kumar This witness was the CMO Brahm Shakti Hospital who (PW2) has proved the MLC of the deceased which is Ex.PW2/A. He has deposed as under:
1. That on 16.06.05 at about 10:10 PM one Sultan S/o Jivan aged 35 years male was brought by one Mr. Malkhan, with an alleged history of ingestion of alcohol with some poisonous substance (unknown tab) on that day around 9:30 PM as told by patient's attendant and the patient was brought in emergency room in unconscious state.
2. That it was a case of unknown poisoning and on examination his pulse was found feeble; Blood pressure was not recordable; respirationgasping, extremities cold, Synosis plus stomach wash done, emergency treatment given after which stomach wash and seal of BSH was handed over to police.
3. That after giving the emergency treatment the patient was handed over to consultant physician Dr. Rahul St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 77 of 124 but despite all efforts, patient expired at 10:45 PM on the same date.
4. Dr. B.L. Garg This witness has proved having prepared the death (PW5) summary of Sultan who was admitted in their hospital on 16.06.2005 which is Ex.PW5/A. According to him the patient was admitted at about 10:15 PM and was unconscious; pulse less; B.P. was Less and was in gasping state. The witness has deposed that the patient was admitted to ICU Ward and was declared dead at 10:45 p.m.
5. Dr. Samir Pandit He was the Medical Officer, Sanjay Gandhi Memorial (PW6) Hospital who has proved that on 17.06.2005 he conducted the postmortem on the dead body of deceased Sultan vide postmortem report Ex.PW6/A. He has deposed on the following lines:
1. The body was identified by brother Malkhan and there was an alleged history of ingestion of alcohol with some poisonous substance; admitted in Bhram Shakti Hospital, Budh Vihar, Delhi in unconscious state vide MLC No. 1301 dated 16.06.2005; expired in the same hospital at 10:45 PM on 16.06.2005 and case FIR No. 154/05 dt. 17.06.2005 was registered at police station Kanjhawala.
2. That the deceased was wearing track pajayama, underwear was fecal stained, white check shirt torn in right axilla and a Sando banyian.
3. That body was average built, rigormortis was present all over the body and postmortem staining was at back, both eyes were closed, Conjunctivae was congested and cornea was hazy, mouth was closed with tongue inside, nails were bluish and fecal incontinence was noted.
4. That on external examination I.V. Injection mark (therapeutic) was noted on dorsum of left hand.
5. That on internal examination of Head scalp tissues and skull bone were normal, brain matter meningas and cerebral vessels were found congested, on cut section intra cerebral patechial hemorrhages were St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 78 of 124 noted on both sides, base of skull was normal.
6. That on examination of neck soft tissues were normal, hyoid bone thyroid cartilage, cricoid cartilage and tracheal rings were intact and tracheal mucosa were congested.
7. That on examination of chest, bony cage and pleural cavities were found normal, both the lungs were congested and edematous and on cut section exude dark colour blood was found and heart was congested.
8. That on examination of abdomen, all the abdomen organs were congested, stomach containing about 200 ml of watery fluid, its mucosa was highly congested and showed hemorrhagic areas with presence of grayish white material entangled in mucosa, bowels were congested. urinary bladder was half and rectum was empty and genital organs were found normal.
9. That no abnormality was detected in the Spinal column.
10. That the cause of death was pending for want of chemical analysis report of the viscera which was preserved and handed over to the police and time since death was approximately consistent with hospital time of death.
11. That the clothes of the deceased, blood and viscera were sealed with the seal of DSP for chemical analysis in three plastic jars and were handed over to police alongwith inquest paper (13 numbers).
12. That on 30.01.2006 the Investigating Officer of the case came to him alongwith his request for subsequent opinion along with a photo copy of FSL report No. FSL2005/C33369 dated 20.11.2005 of FSL, Delhi for opinion regarding the cause of death.
13. That after going through the FSL report findings and with the postmortem report findings he gave opinion regarding the cause of death as "Combined effect of Ethyl Alcohol and Aluminum Phosphide poisoning" which opinion is Ex.PW6/B. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 79 of 124 POLICE/ OFFICIAL WITNESSES (Proving investigations)
6. HC Dilawar He is a formal witness being the Duty Officer who has Singh (PW1) proved that on 16/17.6.2005 at about 4:50 AM he received a rukka through Ct. Sudhir Kumar which was sent by SI Puran Pant on the basis of which rukka he recorded the FIR of the present case copy of which is Ex.PW1/A. He has further deposed that after recording the FIR copy of the FIR and original rukka were sent to SHO/ Inspector Baljeet Singh for further investigations through Ct. Sudhir Singh and copies were also sent to senior police officers and area Magistrate through special messenger.
7. Dheeraj He is the Branch Manager from State Bank of India, Manchanda Kanjhawla who has deposed as under:
(PW7) 1. That there was an account bearing No. was 01190013516 in the name of Sultan Kanwar son of Jiwan residence of village Kanjhawala in their Kanjhawala Branch of SBI.
2. That during the course of investigation he handed over the account opening form of the account holder Sulan Kanwar to the Investigating Officer which is Ex.PW7/A. This witness has also proved the bank statement of the account holder, copy of which statement is Ex.PW7/B (three sheets) bearing his signatures and bearing the stamp of his bank. He has clarified that in the said statement the account number of the account holder had been changed and the present account number was 10527521103. He has also proved that the above mentioned account opening form was taken into possession by the Investigating Officer vide memo Ex.PW7/C.
8. Ct. Dalbir Singh He is a formal witness being the Photographer who has (PW8) proved that on 17.06.05 after receiving the information he along with the other staff of Mobile Crime Team reached at AOne Associates, Main Karala, Kanjhawala Road where at the instance of Inspector Baljit Singh, the then SHO he took four photographs of the spot. He has St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 80 of 124 proved the negatives of the photographs which are Ex.PW8/A1 to Ex.PW8/A4 and has proved the photographs which are Ex.PW8/B1 to Ex.PW8/B4.
9. Naresh Chand He is the LDC Delhi Transport Authority, Janak Puri (PW9) and has produced the record of vehicle i.e. Maruti Car bearing No. DL4CAA3286 Alto which was initially registered in the name of Sultan S/o Jeevan Ram R/o Vill. Kanjhawala, Bawana, Delhi on 23.03.05 and on 27.12.05 this vehicle was transferred in the name of Smt. Meena W/o Sultan (after the death of the deceased). He has proved the copy of the old RC in the name of Sultan which is Ex.PW9/A and the particulars/ record in this regard is Ex.PW9/B.
10. Ct. Kuldeep This witness has proved on 24.08.05 he took three sealed (PW10) pullandas and two sample seal with the FSL form from MHC (M) vide RC No. 86/21/05 and deposited the same in FSL Rohini after which he deposited the receipt with the MHC (M).
He has also proved that on that day on the instructions of the Investigating Officer he took one envelope sealed with the seal of PP alleged to be containing one slip, statement of bank of deceased Sultan and account/ form and one letter of Pasco Automobilies alongwith FSL form for depositing it in FSL Rohini vide RC No. 69/21 and accordingly he deposited the same.
11. SI Manohar Lal He is a formal witness being the Draftsman who has (PW11) proved having visited the spot on 01.07.05 and took the measurements and rough notes on the basis of which he prepared a scaled site plan which is Ex.PW11/A which he handed over to the Investigating Officer.
12. HC Devender He is a formal witness who has proved that on 29.07.05 Kumar (PW12) he he took one envelope sealed with the seal of BS alongwith FSL form from MHC(M) alongwith some other documents and after depositing the same with the FSL Rohini, he deposited the receipt with the MHC(M).
13. HC Jai Bhagwan He is also a formal witness who has deposed that on (PW13) 16.08.05 SHO handed over a request which he took to St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 81 of 124 Reliance Office situated at Bara Khamba Road and he obtained the call detail of mobile No. 9313639970 from Reliance office which are Mark X1 which he handed over to SHO.
14. Sanjeev Lakra He is the Alternate Nodal Officer, Reliance (PW14) Communication and has proved the call details dated 16.06.2005 in respect of mobile number 9313639970 which was in the name of Sultan R/o 4, Kanjhawala, Delhi81; copy of the application form of the subscriber Sultan which is Ex.PW14/A; copy of electricity bill in support of address proof which is Ex.PW14/B; receipt of the bill which is Ex.PW14/C issued by the company in favour of Sultan Kanwar; call detail record which is Ex.PW14/D and the Cell ID chart which is Ex.PW14/E1 to Ex.PW14/E6.
15. HC Dilbagh He is the MHCM and has proved the various entires Singh (PW15) made by him in Register No. 19 and 21, the copy of entry no. 1236 which is Ex.PW15/A running into four pages; copy of RC No. 69/21 which is Ex.PW15/B running into two pages and the photocopy of RC No.86 which is Ex.PW15/C running into two pages.
16. HC Jogender He is the witness who has first reached the spot on Singh (PW16) receipt of the call. Apart from the documents proved by the various witnesses, he has proved the following documents:
Ex.PW16/A Seizure memo of half bottle of
Director's Special
Ex.PW16/B Seizure memo of viscera and clothes of
the deceased
Ex.PW16/C Disclosure statement of accused Sunil
Ex.PW16/D Disclosure statement of accused
Sandeep
17. Ct. Sudhir (PW17) This witness has corroborated the testimony of PW16 HC Jogender in toto and has proved the documents already proved by HC Jogender apart from the fact that he was he who had taken the rukka to the police station. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 82 of 124
18. Inspector Puran He is the initial Investigating Officer who has proved the Pant (PW18) following documents:
Ex.PW18/A Rukka Ex.PW18/B1 Specimen handwriting and signatures of to accused Sandeep Ex.PW18/B16 Ex.PW18/B17 Specimen handwriting of accused Sunil to Ex.PW18/B24
19. Inspector Baljeet He is the subsequent Investigating Officer who has Singh (PW19) proved the various investigations being conducted by him and apart from the documents proved by other witnesses, he has proved the following documents:
Ex.PW19/A Application for conducting postmortem Ex.PW19/B Inquest papers (collectively running into 13 number of pages including MLC) Ex.PW19/PX Crime team report Ex.PW19/C Site Plan Ex.PW19/D FSL result Ex.PW19/E Report of the handwriting expert (66) Coming now to the microscopic evaluation of the evidence against the accused persons.
Identity of the accused:
(67) In so far as the identity of both the accused Sunil and Sandeep there is no dispute to the same. Both the accused are residing in the same village and were previously known to the complainant Malkhan Singh who is the brother of the deceased and have been specifically named in the FIR. Further, both the accused have been duly identified in St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 83 of 124 the Court by Malkahn Singh as the partners of his deceased brothers and hence, I hold that the identity of both the accused Sunil and Sandeep stands established.
Motive:
(68) The case of the prosecution is that the deceased Sultan was the partner of the accused and in March 2005 he had started the business of property dealing along with Sandeep S/o Ram Chander (Pandit) and Ajay S/o Ram Chander (Jaat) and had opened an office in March 2005 at main Karala Road near Pooja Filling Station Petrol Pump and all of them invested equal amount of money in the same. According to the complainant Malkhan Singh his brother had also purchase an Alto Car bearing No. DL4CAA3286 and about eight to ten days prior to the incident while his brother was suffering from Typhoid and was admitted in Nursing Home and he had heard from people that Sandeep S/o Ram Chander and Sunil S/o Nand Lal had gone to the Nursing Home and forcibly obtained the signatures of Sultan on the sale letter of the vehicle and later when Malkhan Singh confronted his brother Sultan conceded that Sandeep and Sunil had come to the Nursing Home and had forcible got the sale letter signed from him by threatening him that they would not permit him to remain a partner on account of the dispute of a sale of plot where according to them Sultan had no share in the profit but had taken money in the said deal. According to the complainant on account of this St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 84 of 124 dispute both the accused had committed the murder of Sultan by forcibly administering him poisonous liquor to him.
(69) Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(70) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 85 of 124 (71) Applying these principles of law to the facts of the present case Firstly it is evident that Malkhan Singh (PW3) is not an eye witness to the incident of accused forcibly getting the sale letter signed from his deceased brother and states that he had only heard about the same from the villagers. Secondly Malkhan Singh does not disclose the name of the persons who had informed him about this incident of the accused forcibly getting signed the sale letter from his brother. Thirdly having come to know of the incident he did not make any complaint to the police or to any other person rather kept silent about the whole thing which appears to be improbable under the given circumstances Fourthly the aspect that there was some land deal purchase to which the deceased had taken his share of money on which a despite had arisen between the accused and the deceased, is an allegation which is totally vague and non specific.
The details of the deal i.e. the amount involved; the date on which the deal was conducted and the amount taken by the deceased have not been specified anywhere. This allegation also does not find a support from the statement of account of the deceased which is Ex.PW7/B duly proved by PW7 Dheeraj Manchanda which shows that he had no money in his account so much so even on the date of purchase of vehicle he was having only Rs.27,500/ in his account. Lastly the defence witness Om Prakash (PW1) a resident of the same village has been able to create a dent in the prosecution story regarding the accused having forcibly obtained the signatures of the deceased on sale papers of the car because the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 86 of 124 prosecution at the first instance has failed to place on record any document to prove the admission of the deceased in the Care & Care Nursing Home for treatment of Typhoid so much so that this story has been now introduced in the Court at the first instance. Further, this witness has supported the defence version that a meeting of the elders had been called since deceased was refusing to pay back the amount to the accused Sandeep where deceased was granted one month time either to pay up the loan taken by him from Sandeep or to transfer the car in the name of Sandeep. It is perhaps for this reason that when the documents were signed by the deceased, no complaint was made to the police. Further, if this be so that the documents of transfer had already been signed by the deceased (also as claimed by Malkhan Singh himself), then for what reason would the accused want the signatures on the transfer documents again. This inherent contradiction in the prosecution version raises a lot of unanswered questions and makes the prosecution version doubtful.
(72) In view of the above, I hereby hold that the motive attributed to the accused is not established beyond reasonable doubt. Last Seen Evidence/ Scene of Crime:
(73) The case of the prosecution is that on the date of incident i.e. 16.6.2005 the deceased had made a telephone call to his brother Malkhan Singh at about 7:00 PM and asked him to come to the office stating that St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 87 of 124 there was a quarrel between him and his partners and his shirt had been torn in the said quarrel on which Malkhan Singh took another shirt to the office of his brother i.e. AOne Associates and his brother just opened the door and took the shirt when Malkahn Singh found both the accused Sunil and Sandeep there. On inquiry he was told that there was some altercation and Sultan asked to him to go on which he returned home along with the torn shirt.
(74) I may observe that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(75) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992]. (76) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 88 of 124 observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(77) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 89 of 124 the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(78) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 90 of 124 (79) Now applying these settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Sunil and Sandeep is trustworthy or not. If yes, the effect thereto.
(80) It is evident that from the testimony of Malkhan Singh (PW3) that he is the real brother of the deceased and had made material improvements in his statement. According to him, he had told the police in his statement Ex.PW3/B that when he gave the shirt to his brother at his office, his brother took the shirt by opening the door and he saw the accused persons there and when he inquired from the accused they replied that some altercation had taken place. However, when confronted with his statement Ex.PW3/B the said facts were not found mentioned and it is writ large that the witness Malkhan Singh has improved upon his statement and created the story of last seen. The witness Malkhan Singh had also made material improvements to the extent that on the date of incident at about 7:00 PM his deceased brother made a call to him asking him to get a shirt as his shirt was torn because of the quarrel and when he went he found both the accused Sunil and Sandeep there. The call details record of the mobile phone of the deceased which is Ex.PW14/D does not connect the call made by the deceased at 7:00 PM. The prosecution has failed to establish the call which was allegedly made by the deceased to his brother at 7:00 PM calling him to come to the office. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 91 of 124 (81) Further, in their testimonies Malkhan Singh (PW3) and HC Jogender Singh (PW16) have contradicted each other. While in the seizure memo of the slip Ex.PW3/A as prepared by HC Jogender, it is admitted by both HC Jogender (PW16) and Ct. Sudhir (PW17) that it find specifically mentioned that while HC Jogender was making inquiries Malkhan Singh came to the spot. It is in the Court now that they have changed their version and have deposed that Malkhan was already at the spot. Document prepared at the first instance is presumed to be correctly prepared and appears to be truthful. Also, according to HC Jogender and Ct. Sudhir when they reached the spot the deceased Sultan was unconscious. If this be so, how is it then possible that Sultan could have told something to Malkhan while being shifted (when Sultan himself was unconscious) which was never heard by either HC Jogender or Ct. Sudhir. Further, it is also the case of Malkhan that one Naresh Kumar, his neighbour was with him throughout i.e. when Sultan was being shifted to Hospital and this Naresh Kumar also went with them to the hospital and remained there. Who is this Naresh Kumar and why he has neither been cited nor examined as a witness? Is it now that at the stage of trial Malkhan has attempted to introduce/ plant a new character only to corroborate his version because none of the persons including HC Jogender, Ct. Sudhir or other police officers mention about the presence of any Naresh Kumar at the spot who also accompanied them to the hospital.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 92 of 124 (82) Another important aspect is that Head Constable Jogender having found a half filled bottle at the spot, he does not handover this bottle to SI Puran Pant nor the contents of this bottle are immediately preserved or seized nor any chance prints from the bottle are got lifted from the Crime Team who reach the spot even before SI Puran Pant. Why was these chance prints not lifted? Also, most importantly neither any glass nor anything else was noticed or recovered showing that alcohol was consumed in the office. There is no vomit in the room nor on the clothes of the deceased showing that either the scene of crime is some other place or the entire scene of crime was cleaned/ washed and disturbed. Malkhan is totally silent on the aspect of the servant Alam and rather, denies any knowledge of any such person being there who allegedly informed him of the incident. He has concealed the identity of the person who telephoned to him and told him to reach the office which he has done so as to give a twist to the story in order to lend credence to the last seen version given by him to the police and to show that the incident took place in the office. The police has not investigated the aspect of any other person including the servant being present in the office and had this fact been proved that there was a full time servant in the office, then the entire foundation of the case that the incident had taken place in the office would have been shaken. Another very important aspect which is inconsistent with the story put forward by the prosecution is DD No.34A showing that the earliest information received St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 93 of 124 was with regard to a person having been given some poisonous substance in alcohol (Kanjhawla chowk se karala ki taraf AI Associate ke paas kuch log mujhe sharab me mila kar kuch pila rahe hain. Yadi mujhe kuch ho jaye to meri zeb se parchi nikal lena). The Investigating Officer Inspector Baljeet Singh concedes that no investigations were made to ascertain the credibility/ correctness of the said information showing that the place of incident was near AOne Associates between Kanjhawla Chowk and Karala and not in the office. Even DD No. 2B shows that the place on incident was around Murgi Farm (Poultry Farm). Had this fact been investigated as to whether the deceased was administered poisonous substance in his office or near his office (at Murgi Farm) the entire scenario would have been different since the scene of crime could have been shifted to Murgi Farm (Poultry Farm) from the office of the deceased and the theory of last seen would have fallen flat. Perhaps it is for this reason why this aspect of a servant being employed at the office and the aspect of the spot where the actual incident took place had either not been inquired into or has been deliberately concealed only to distort the facts and work out the case.
(83) Even otherwise, believing what has been stated by Malkhan Singh that even earlier when his brother was admitted in the hospital about eight to ten days of the incident when he was suffering from Typhoid, both the accused had gone to the Nursing Home and forcibly got the sale letter of the car signed and later threatened to kill him, it does not St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 94 of 124 appear probable that on 16.6.2005 when Malkhan Singh came to know about a quarrel and went to the office of the deceased that he would have returned. In the given background of a dispute, Malkhan Singh would have certainly preferred to stay with his brother as any other reasonable person would have done under the given circumstances, rather than leaving his brother with the same persons who had earlier threatened him. The behaviour and conduct of Malkhan Singh as reflected from the material which has come on record, is not that of a normal person. Any other reasonable person under the given circumstances would have either raised an alarm or preferred to stay with his brother or came back to inform his family or his neighbours and apprised them with regard to what had happened which he did not do. Most importantly, the witness Malkhan Singh does not clarify and is highly evasive when questioned on the manner in which he received the information that his brother was lying in an unconscious condition. Who had given this information to him and how, are the aspects on which the witness is silent which creates a doubt on the truthfulness and credibility of the testimony of this witness. In the absence of any explanation forthcoming; also in the absence of any corroboration forthcoming in this regard, there are numerous missing links and the sequence as narrated by Malkhan does not appear to be trustworthy and reliable.
(84) Therefore, having created this story for the first time in his deposition in the Court, the testimony of Malkhan Singh to the extent of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 95 of 124 being a witness of last seen does not appear to be truthful and credible and cannot be believed.
Dying Declaration:
(85) The case of the prosecution is that the deceased Sultan had made a call to 100 number from his mobile number 9313639970 to the effect that in the office of AOne Associates some persons are forcibly administering him alcohol and if something happened to him, there is a slip in his pocket which they should remove. Pursuant to the said call HC Jogender and Ct. Sudhir Kumar reached the spot i.e. office of AOne Associates near Main Karala Road within ten minutes and found Malkhan Singh and his brother Sultan. Malkhan Singh was preparing to shift Sultan in the hospital and there was a foul smell coming out from the mouth of Sultan. HC Jogender Singh checked the pocket of Sultan he found a white paper slip with a noting and Malkhan Singh identified the said handwriting of his brother Sultan which was taken into possession.
The contents of the said slip are as under:
Main Sultan Kanwar mere ko Sandeep S/o Ramchander va Sunil S/o Nandlal se khatra hai. Ye mujhe ghar nahin jaane de rahe va jabardasti sharab pila rahe hain. Meri ek car hai jiska no.
DL4CAA3286 hai. Uske liye unhone kore saleletter par mere dastkhat karva liye hain. Agar main no St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 96 of 124 bachoon to uchit karyavahi ki jaye.
(86) The Ld. Addl. PP for the State has vehemently argued that the said note is in the nature of Dying Declaration of the deceased since immediately thereafter when Sultan was shifted to hospital he did not regain conscious and expired.
(87) Before proceeding to analyze the alleged Dying Declaration of the deceased, it is necessary to revert to the provisions of Section 32 of the Indian Evidence Act which provides for the relevance of the statements of the persons who are dead or cannot be found, becomes relevant. Section 32 reads as under:
Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant: Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:
(1) when it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 97 of 124 the nature of the proceedings in which the cause of his death comes into question.
(88) Section 32 of the Indian Evidence Act provides for exception to the rule of hearsay. As a general rule the hearsay evidence is excluded and best evidence must always be given but Section 32 of the Indian Evidence Act is an important exception to this rule and one of the exceptions so provided where a person is dead or incapable of giving evidence or cannot be found, then in such case since no better evidence can be obtained, the oral or written evidence of such a person relating to relevant fact under inquiry, becomes admissible. The test of cross examination being unavailable, the safeguards which are enumerated under Section 32 of the Indian Evidence Act must be observed. Dying Declaration is only a piece of untested evidence and must like any other evidence satisfy the court that what has been stated therein is the unalloyed truth and that it is absolutely safe to rely upon it. The evidentiary value or weight which has to be attached to such a statement/ Dying Declaration necessarily depends upon the facts and circumstances of each case. It is the duty of the court to subject such a statement to close scrutiny to ascertain whether it was honest and truly made and not a result of any tutoring, prompting or imagination and the deceased had opportunity to observe and identify the assailants and was in a fit state to make a declaration. In a case where the Dying Declaration is suspected it should not be acted upon without corroborative evidence (Ref: Rashid St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 98 of 124 Beg Vs. State of Madhya Pradesh reported in AIR 1974 SC 332). Also, in a case where the prosecution differs from the version as given in the prosecution, the same cannot be acted upon. Further, in a case where the prosecution is solely based upon the Dying Declaration, no doubt conviction can be based upon an uncorroborated Dying Declaration, yet that can be done only after such a Dying Declaration is tested with utmost care and caution. It is a settled law that such a statement is required to be examined minutely and it is necessary for the court to ascertain the correctness of such statement made by the deceased in terms of the surrounding circumstances. (Ref: State of Gujarat Vs. Khumansingh Karsan Singh & Ors. reported in AIR 1994 SC 1641).
(89) Applying the settled principles of law to the facts of the present case it is evident that Firstly the sip Ex.P1 is duly proved to be in the handwriting of Sultan which stands established from the FSL report Ex.PW19/E. Secondly it is also proved from call details Ex.PW14/D that a call was made by the deceased Sultan to 100 number on 16.6.2005 at 9:02:07 PM from his mobile no. 9313639970. Thirdly the fact that this call was actually made by Sultan has not been established. In case if both the accused Sunil and Sandeep were with the deceased and were forcibly administering alcohol to him, it was not possible to him to have made a call to the police at 100 number in the manner as aforesaid while sitting in front of them and in case if it was possible for the deceased to have made this call while sitting in front of both the accused informing St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 99 of 124 the police that he was being forcibly administered alcohol, it was equally possible for him to have specifically named the person who was forcibly administering him alcohol, which he did not do. The deceased simply stated that he was being administered alcohol by some person. Both the accused Sunil and Sandeep were known to the deceased Sultan previously and Sultan could have named them while making call to the police which he did not do. The possibility of some other person making a call on 100 number from the mobile phone of Sultan in his name after Sultan had already been administered the poison, cannot be ruled out. Lastly according to the testimony of Malkhan Singh (PW3) the blank sale papers of the car had been got signed by the accused from Sultan about eight to ten days prior to the incident when he was taken to the hospital. If this be so, then naturally there was no occasion or requirement for the accused to have got the other papers pertaining to the same car signed from the deceased and no explanation is forthcoming as to why the accused who already had the signed papers of the car with them would again get the said papers signed. Either the earlier story of the accused having got the papers signed about 10 days back while Sultan was admitted in the hospital is false and concocted or the second story of the accused getting the papers signed has been created.
(90) The background of the deceased is very much important while analyzing the notings made by him. The deceased himself was a property dealer and partner of the accused Sandeep and as per the case of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 100 of 124 the prosecution was involved in the sale of land in the area. It is also alleged that the accused were agitated because he had taken large amount in one of the deal which was not due to him. This primafacie reflects that the deceased himself was dishonest and had apparently cheated his partners and therefore, under the given circumstances the possibility of there being a dispute between the partners cannot be ruled out. Therefore, being compelled to sign the sale letter in respect of the car, the possibility of the deceased having become apprehensive and carrying a written note in his pocket containing allegations against the accused cannot be ruled out. From the evidence on record, it appears that the deceased Sultan himself was not a clean man and a schemer by nature. DW1 Om Prakash who is a resident of the same village has deposed that Sultan had taken money from various persons in the village which he had not repaid. He has also clarified that the accused Sandeep had approached the village elders as Sultan was not returning the amount taken from him on loan on which the elders had given one month time to Sultan to either pay back or transfer the car in the name of the accused Sandeep (which transfer papers according to Malkhan Singh had already been signed while deceased was being treated for Typhoid in Care & Care Hospital about eight to ten days prior to the incident). In this background, the deceased being compelled to sign the papers of transfer in favour of Sandeep, the possibility of his keeping a note in his pocket as a part of the plot/ conspiracy to get back at Sandeep and Sunil (witness to the transfer St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 101 of 124 papers) cannot be ruled out. Further, the possibility of some other person who was already aware of Sultan carrying this note in his pocket making a call to the police, cannot be ruled out. The question which then arise is, who is that person who was aware of the deceased having signed the papers in favour of Sandeep (partner of the deceased in AOne Associates) wherein Sunil (not a partner) was a witness? The answer to the same is that the said person is none else but Malkhan Singh. It is Malkhan Singh who was already aware that the documents of sale of the car being signed by his deceased brother. It is Malkhan Singh who was in possession of mobile phone of the deceased when the police reached the spot. It is Malkhan Singh in whose presence the written note had been recovered from the pocket of the deceased by HC Jogender. It is Malkhan Singh who informed the police about the role of the accused Sandeep and Sunil. It was only Malkhan Singh who was found at the spot when the alleged scene of crime (i.e. office of AOne Associates) had been cleaned there being no glasses or vomit lying at the spot indicating that the same had been cleaned and the half filled bottle of whiskey of Director Special not indicating any poisonous substance in the same nor the chance prints being lifted from the same by the Investigating Officer. It is writ large that the entire prosecution story rests upon the testimony of Malkhan Singh who himself is not a trustworthy and a credible witness. (91) I may further specifically note that the half filled whiskey bottle of Director Special lying at the spot was seized and its contents St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 102 of 124 were sent to FSL which report Ex.PW19/D indicates that there was no poison in the said liquor bottle thereby showing that the drinking session was going on at some other other place and the possibility of this bottle being planted later cannot be ruled out and perhaps this was the reason why this bottle was not handed over by HC Jogender to SI Puran Pant at the first instance.
(92) In view of the above I hold that the note Ex.P1 though written by Sultan does not inspire confidence of the Court in view of the previous existing dispute between the deceased and the accused and the fact that the sale letter had already been written in favour of Sandeep. Ownership of the vehicle (Alto car)/ loan given by the accused Sandeep to the deceased Sultan:
(93) It is an admitted case of the prosecution and also not denied by the accused that the Alto car bearing No. DL4CAA3286 was registered in the name of deceased Sultan. The statement of the account of Sultan which is Ex.PW7/B duly proved by Dheeraj Manchanda (PW7) shows that on 1.3.2005 he was having only a sum of Rs.4,245/ in his account; on 4.3.2005 he was having only a sum of Rs.3,245/; on 7.3.2005 he was having only a sum of Rs.2,245/ in his account; on 21.3.2005 a sum of Rs.25,000/ was deposited in his account and on 23.3.2005 when the car was registered in his name he was only having a sum of Rs.26,151/ in his account and no amount had been withdrawn by St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 103 of 124 him. Rather, in his defence the accused Sandeep has produced his statement of account which is Ex.DW2/A duly proved by Hari Om Sharma (DW2) which shows that on 23.3.2005 a sum of Rs.2,75,000/ was withdrawn from his bank account. The defence offered by accused Sandeep that Sultan had taken money from him to purchase the car and the fact that a sum of Rs.2,75,000/ had been withdrawn by him on the date of purchase of the car i.e. 23.3.2005 and also the fact that on the said date Sultan did not have the requisite amount in his account supports the case of the defence than that of the prosecution and the possibility that it was in fact Sandeep who gave money to Sultan to purchase the car which money was not returned and it is only for this reason that the sale letter had been signed by Sultan in favour of Sandeep in the presence of Sultan, cannot be ruled out. Perhaps it is only for this reason that no police complaint had been made nor the issue was raised with the elders of the village nor the dispute was brought to the notice of any independent person. The mere fact that the sale documents of car Ex. P3/1 to Ex.P3/5 were recovered from the possession of accused Sunil does not assist the case of the prosecution since a valid explanation is forthcoming for the same. Sunil being a witness, had the documents of transfer in his possession which the deceased Sultan had executed in favour of Sandeep perhaps as an assurance to repay the loan amount in future date failing which the vehicle would stand transferred in the name of Sandeep. This also explains the possession of the vehicle by Sandeep.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 104 of 124 Recovery of the articles:
(94) The entire case of the prosecution is based upon the recovery of the keys of Alto car (belonging to the deceased Sultan) from the possession of accused Sandeep and the document of the car from the house of accused Sunil. The case of the prosecution is that both the accused were apprehended at the instance of complainant Malkhan Singh and during interrogation the accused Sandeep produced the key and remote control of the Alto car which were seized vide memo Ex.PW3/E and the Alto car was also seized vide memo Ex.PW3/J. Thereafter the accused Sunil took the police party to his house from where he got recovered the documents of the car i.e. Form 29 and 30 in duplicate which documents were seized vide memo Ex.PW3/K. (95) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 105 of 124 (96) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
a) Anything, state of things, or relation of things, or capable of being perceived by the senses,
b) Any mental condition of which any person is conscious.
(97) It further provides five illustrations as to what would constitute a fact which are as under:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
(98) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 106 of 124 difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(99) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 107 of 124 prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 108 of 124 inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(100) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them"
are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 109 of 124 actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it.
Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(101) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 110 of 124 State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(102) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 111 of 124 to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(103) Applying the settled principles of law to the facts of the present case, it is evident that the recovery of Alto car, its keys and documents of the car from the possession of the accused does not in any manner assist the prosecution since it was already in the knowledge of the Investigating Officer and brother of the deceased the the vehicle and the documents were in possession of the deceased. There was already a dispute on the vehicle and the deceased had executed a sale letter of the said car in the presence of witness Sunil. As already discussed and as evident from the statement of account of the deceased which is Ex.PW7/B that the deceased was not having any money in his account. Rather, it is the accused Sandeep whose statement of account which is Ex.DW2/A shows that a sum of Rs.2,75,000/ had been withdrawn from St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 112 of 124 his bank account on 23.3.2005 which according to him he had given to the deceased and it was only when the deceased did not return the loan amount that he had signed the sale letters in the name of the accused which documents were thereafter recovered from the house of accused Sunil.
(104) Further, the recovery of liquor bottle at the spot does not assist the prosecution since Firstly the FSL Report Ex.PW19/D does not show the presence of poison in the liquor containing in the said bottle. Secondly no glasses were found at the spot to show that alcohol had been consumed by the deceased or administered to him from the said bottle or even at the office of AOne Associates. Thirdly no chance prints were lifted from the bottle to connect the accused with the same. Fourthly according to Malkhan Singh when he reached the spot his brother was gasping and there was a vomit around the deceased as well as the clothes of the deceased whereas according to HC Joginder and Ct. Sudhir when they reached the spot they found the place cleaned and did not find any vomit. This shows that either the office had been cleaned before arrival of HC Jogender and Ct. Sudhir or Sultan had been later on brought to the office of Avon Associate by somebody from where he was shifted to hospital.
(105) This being so, I hereby hold that merely because the liquor bottle was recovered from the spot and the car, keys and documents of the car were recovered from the possession of accused does not assist the St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 113 of 124 prosecution in any manner.
Second version of the incident is possible:
(106) The case of the prosecution is that the deceased Sultan had opened an office of property dealing in the name of AOne Associates in the partnership of Sandeep S/o Ram Chander in the month of March 2005 and also purchased a car bearing No. DL4CAA3286. As per the allegations, there was a dispute between the deceased and the accused Sandeep since the deceased had taken more share in one of the property transactions despite the fact that he was not entitled to it. Further, it is alleged that about eight to ten days prior to the incident when Sultan was admitted in the Hospital, both the accused namely Sandeep and Sunil came to the hospital and forcibly got signed the sale letters of the car from him. It is also alleged that on 16.6.2005 in the evening both the accused mixed some poisonous substance in the liquor of Sultan which he consumed due to which reason Sultan expired.
(107) On the other hand the version of the defence is that the deceased Sultan was into the business of property dealing and was a dishonest person with unclean antecedents. He had taken loans from various persons which he did not repay. He had also run away with a young girl from the village as a result of which her family was also inimical to him. He had even cheated Sandeep and had taken loan from him for purchase of Alto car which he was not returning as a result St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 114 of 124 Sandeep informed the village elders and the deceased Sultan was given time to either return the loan amount to Sandeep within one month or to transfer the Alto car purchased by him from the money given by Sandeep in the name of Sandeep. According to the accused, in pursuance to the aforesaid, since Sultan could not pay back the said amount he signed the transfer documents of the Alto car in favour of Sandeep to which Sunil was a witness and handed over the keys of the said car to Sandeep while the original transfer documents remained with Sunil (witness to the transfer). According to the accused, the incident of administration of poisonous substance had taken place else where and the deceased was brought to his office from where his servant Alam made a call to Malkhan. It is submitted that it was only after Malkhan Singh came to the office that he himself made a call to the police from the mobile phone of Sultan as a part of the conspiracy in order to shift the entire blame on the accused. Ld. Defence Counsel has pointed out that the deceased had a number of enemies on account of his wayward behaviour and habits. (108) I have considered the rival contentions and also the evidence on record. Before considering the submissions made on merits, I may mention that the Hon'ble Supreme Court in the case of Brij Nandan Rai & Ors. Vs. State of Bihar & Ors. reported in 1995 (I) CCR 769 (DB) where different versions of the incident had emerged out of the evidence adduced before it, had refused to accept the prosecution version and observed that:
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 115 of 124 "....... The prosecution has suppressed the origin of the occurrence. Evidence of the IO is that he found no breakfast material at the place of occurrence. Thus it has not presented true and correct picture of the occurrence. Undue delay in examination of PWs indicates lack of fairness on the part of the prosecution. All the witnesses are partisan. There is a defence version which explains the severe and serious injury on the chest of appellant Ram Pritam Singh. The defence version competes in probability with that of the prosecution. Omission on the part of the prosecution to explain the grievous injury on the chest of appellant Ram Pritam Singh assumed much greater importance in the above circumstances. The evidence adduced by the prosecution is neither clear and cogent nor independent and disinterested nor probable consistent and creditworthy. ....."
(109) Similarly in State of Maharashtra Vs. Ahmed Shaikh Babajan & Ors, Cri. Appeal No. 2529 of 2002, decided on 24.10.2008 it was observed by the Hon'ble Apex Court that:
".... If two reasonable views are possible on the basis of the evidence on record then one favourable to the accused ought not be disturbed...."
(110) Also in the case of State of U.P. Vs. Munni Ram & Ors. reported in 2010 (12) JT 180 it has been observed by the Hon'ble Supreme Court that the defence of the respondents was a cross version of the incident and it could not be discarded and it was further observed that:
St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 116 of 124 "...if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to innocence, the view which is favourable to the accused is normally to be adopted......"
(111) Applying these principles of law to the facts of the present case it is evident that Sultan was into the business of property dealing and had taken loans from various persons including accused Sandeep which loan he did not repay and it is only natural that he would have earned a large number of enemies. It is further borne out from the record that Sultan was into partnership with Sandeep in the business of property dealing under the name of style of AOne Associates but had no business dealing with Sunil except for the fact that Sunil is a witness to the transfer document of the Alto Car signed by Sultan in favor of Sandeep. From the evidence which has come on record it is evident that when the police came to the spot sultan was unconscious and there was none else with him except his brother Malkhan Singh and therefore it is not possible that Sultan could have told anything to Malkhan Singh (as alleged by Malkhan Singh) while he was being shifted to Hospital in an unconscious state. It is further evident that when the police reached the spot the office of A One Associates was cleaned. There were no glass tumblers or any other articles at the spot indicating that some drinking session (as alleged by Sultan) was going on before the police reached the spot. Further, the clothes of Sultan were cleaned (without any vomit) nor there were any St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 117 of 124 signs of vomit at the office of AOne Associates indicating that the place of incident was not the office but was else where. How and when the deceased Sultan reached the office of AOne Associates? Who brought him to this office? What was the source from where the liquor containing poison was procured and by whom? Who was the person who made a telephone call to the police by using the telephone of Sultan? Was it Sultan who actually made a 100 number call to the police by claiming that some persons were administering poison to him near the office of AOne Associates and if something happens to him, then a note from his pocket should be removed or was it a ploy was some other person to mislead and divert the investigations? If it was Sultan who made this call why did he not give the name of the said persons who were forcibly giving him liquor of which he was aware? Why was Sultan carrying a note in his pocket claiming that the accused Sandeep and Sunil were compelling him to sign the papers relating to transfer of Alto car when Sultan knew that the said papers had already been signed by him in favour of Sandeep which were in possession of Sunil and the key of the car was with Sandeep? (112) These are all the questions which require an answer but the prosecution has failed to offer any satisfactory explanation for the same.
It is this which compels this Court to conclude that the prosecution story is full of holes and other versions are equally feasible. The fact that Sultan was administered liquor laced with poison in the office of AOne Associates does not stand established and therefore, it is writ large that St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 118 of 124 Sultan had consumed this poisonous substance else where and it was later that he was brought to the office of AOne Associates where his clothes were changed which explains the absence of vomit on his clothes. The possibility of some other persons having administered poison to him also cannot be ruled out. Further, the possibility of Sultan carrying this note in his pocket as a part of a conspiracy/ ploy against the accused in order to secure the return of his Alto car cannot be ruled out, and the fact that Malkhan Singh was aware of the same is equally possible. (113) Admittedly no inquiry has been made by the Investigating Officer with regard to the source from where the liquor was purchased and the place where the liquor was consumed. Further, the fact that no chance prints were lifted from the whiskey bottle of Director Special and that HC Jogender does not seal this bottle and its contents and also fails to hand over the same to SI Puran Pant at the first instance, also raises questions regarding the credibility of the claim of the recovery of this bottle from the spot. The FSL report showing absence of any poisonous substance in the bottle and the fact that no chance prints were lifted from the same in order to connect the accused and establish their presence in the office of AOne Associates creates a doubt regarding the authenticity and correctness of the claims made by the prosecution, the benefit of which is liable to be given to the accused.
(114) There being no direct conclusive evidence against the accused and the chain of evidence being not so complete to leave any St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 119 of 124 reasonable ground for the conclusion consistent with the guilt of the accused has punctured the prosecution version and the probability that some other persons could have administered poison to the deceased at some other place is a hypothesis which cannot be excluded or ruled out. FINAL CONCLUSION:
(115) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
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 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 St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 120 of 124 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.
(116) Applying the above principles of law to the present case it is evident that the identity of the both the accused Sunil and Sandeep stands established. Both the accused were known to the deceased and the complainant prior to the incident. It stands established that the deceased was into the business of property dealing along with the accused Sandeep and was operating from the office of AOne Associates, Main Karala Road. It also stands established that the accused Sandeep gave a loan to the deceased for purchasing a car which the deceased did not return to him. It further stands established that there was a dispute between deceased Sultan and accused Sandeep as Sultan was delaying the payment of the loan amount (out of which Rs.2,75,000/ were withdrawn by the accused Sandeep from his bank account as reflected from his statement of account) which dispute was taken by accused Sandeep to the elders of the village who asked Sultan to repay the loan amount within one month or to transfer the Alto Car in favour of the accused Sandeep pursuant to which the deceased signed the sale letters of the Alto car in favour of Sandeep as he could not pay back the amount (as claimed by Malkhan Singh). The fact that Sultan was administered liquor laced with poison in the office of St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 121 of 124 AOne Associates does not stand established and therefore, it is writ large that Sultan had consumed this poisonous substance else where and it was later that he was brought to the office of AOne Associates where his clothes were changed which explains the absence of vomit on his clothes. The possibility of some other persons having administered poison to him also cannot be ruled out. Further, the possibility of Sultan carrying this note in his pocket as a part of a conspiracy/ ploy against the accused in order to secure the return of his Alto car cannot be ruled out, and the fact that Malkhan Singh was aware of the same is equally possible. (117) There are large number of missing links. How and when the deceased Sultan reached the office of AOne Associates? Who brought him to this office? What was the source from where the liquor containing poison was procured and by whom? Who was the person who made a telephone call to the police by using the telephone of Sultan? Was it Sultan who actually made a 100 number call to the police by claiming that some persons were administering poison to him near the office of AOne Associates and if something happens to him, then a note from his pocket should be removed or was it a ploy was some other person to mislead and divert the investigations? If it was Sultan who made this call why did he not give the name of the said persons who were forcibly giving him liquor of which he was aware? Why was Sultan carrying a note in his pocket claiming that the accused Sandeep and Sunil were compelling him to sign the papers relating to transfer of Alto car St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 122 of 124 when Sultan knew that the said papers had already been signed by him in favour of Sandeep which were in possession of Sunil and the key of the car was with Sandeep? These are all the questions which require an answer but the prosecution has failed to offer any satisfactory explanation for the same. It is this which compels this Court to conclude that the prosecution story is full of holes and other versions are equally feasible. (118) In view of the above, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The material brought on record by the prosecution are insufficient to hold that each of the accused was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Sunil and Sandeep. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Sunil and Sandeep, beyond reasonable doubt and St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 123 of 124 hence, benefit of doubt is being given to them who are acquitted of the charges under Section 302/34 Indian Penal Code. Their sureties be discharged as per rules.
(119) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 10.4.2012 ASJII(NW)/ ROHINI St. Vs. Sunil & Anr., FIR No. 154/05, PS Kanjhawla Page No. 124 of 124