-1- IN THE COURT OF MS. NEENA BANSAL KRISHNA : ADDITIONAL SESSIONS JUDGE-01 : NEW DELHI In re : SC No. 09/12 [CASE NUMBER] PS Sangam Vihar [ENTITY] versus (1) [ENTITY] S/o Sh. Ram Narayan Pandey R/o Vill. Pande Baba, Badona DPS Motipur, Distt. Sultanpur, UP Present Address : H-166, Sourabh Vihar, Jaitpur Extn., ND. (2) [ENTITY] S/o Sh. Prem Chand, R/o Vill. Asgarpur, PS Akrabad, Distt. Aligarh, UP Present Address : H. No. C-245, Pul Prahladpur, ND. (3) [ENTITY] S/o Sh. [ENTITY]aran Dwivedi R/o Vill. Partapur Kamecha, PS Chanda, Distt. Sultanpur, UP. (4) [ENTITY], S/o Sh. Ratanlal R/o Vill Kherpipal, PS Biharipur, PS Kher, Distt. Aligarh, UP. (5) [ENTITY] S/o Sh. Ram Sharan R/o H. No. A-64, Shiv Durga Vihar, Lakkarpur, Haryana. [ENTITY] v. [ENTITY] etc. [CASE NUMBER] PS Sangam Vihar Page No. 1 of 28 -2- Date of institution of the case : 08.12.2005 Date of reserving judgment/order : 16.05.2012 Date of judgment / order : 07.06.2012 JUDGMENT :
1 The accused persons have been charge-sheeted u/[SECTION] [ACT] for abducted and committing murder of one [ENTITY].
2 The facts in brief are that the accused [ENTITY] had hired an Indica car No. HR-51-S-9172 along with its driver [ENTITY], deceased on 05.05.2005 from K. D. Taxi Service, Prahlad Pur, New Delhi, for himself and the accused persons, namely [ENTITY], [ENTITY] and [ENTITY], for attending a marriage near Palwal. The accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] took the said vehicle along with the deceased but the vehicle failed to return in the night as was excepted. Eventually, a complaint was lodged by [ENTITY], mother of the deceased about her son not having returned back along with the vehicle, on which information DD No. 27 dated 07.05.2005 was recorded at PP Prahlad Pur. Subsequently, an FIR was registered on 10.05.2005 on the complaint of [ENTITY] the owner of the Taxi Stand. The investigations were taken over by A[ENTITY]. During investigations, father of [ENTITY] informed that after attending the marriage at Palwal, the [ENTITY] v. [ENTITY] etc. accused persons had gone to [ENTITY], UP to the house of sister of [ENTITY]. A phone call was made to the house of the sister of the accused, which was answered by a girl, who informed that four boys who were wearing blood stained clothes had come in a vehicle which also had blood stains and they had gone to the tube-well to wash the clothes and the vehicle. On receipt of this information the police went to [ENTITY] and the accused [ENTITY] was identified by the photograph but none of the accused were found present. Thereafter, on 06.05.2005, one [ENTITY], who was working as a Sweeper in PP Panethi noticed the dead body lying on the Sansi Road, near G. T. Road, of a male, aged about 30-35 years and information was given to police post Panethi. The policed reached the said spot and a panchnama of the body was prepared and thereafter it was sent for postmortem to Aligarh, UP. FIR No. 76/05, u/[SECTION] [ACT] was registered at PS Panethi. [ENTITY] on 12.05.2005 reached police station Akrabad and came to know about the dead body, which was identified eventually by the mother and the family members of the deceased to be that of [ENTITY], the driver.
3 Thereafter, on the basis of secret information accused [ENTITY] and [ENTITY] were arrested from their house at Saurav Vihar, Jaitpur, Delhi and accused [ENTITY] got recovered two original number plates of Indica Car bearing no. HR-51S-9172 from the Taand and house and also got recovered the original documents of the car from a briefcase [ENTITY] v. [ENTITY] etc. lying in the room. The accused [ENTITY] handed over the wrist watch of make [ENTITY], which was identified by [ENTITY] to have been gifted by him to deceased [ENTITY]. The accused [ENTITY] and [ENTITY] then led to the arrest of accused [ENTITY] to whom the vehicle Indica Car had been sold. The Indica car was recovered from the possession of accused [ENTITY]. The accused [ENTITY] and [ENTITY] could not be arrested and they were declared Proclaimed Offenders and the charge-sheet was filed in the Court.
4 The original charge-sheet was filed before the Ld. MM on 29.08.2005. Accused [ENTITY], [ENTITY] and [ENTITY] appeared before the Ld. MM. The other two accused [ENTITY] and [ENTITY] were declared Proclaimed Offenders and the case was committed to the Court of Sessions vide order dated 23.11.2005.
5 Subsequently, on 03.05.2007, on the basis of secret information, accused [ENTITY] was arrested from near the gate of Batra Hospital and also led the police to the arrest of accused [ENTITY] from near Badarpur Border. The supplementary charge-sheet was filed against the two accused in the Court.
6 Vide order dated 10.04.2006, charge u/[SECTION], [SECTION] and [SECTION] [ACT] was framed against all the three accused besides which charge u/[SECTION] [ACT] was also framed against accused [ENTITY], to which they all pleaded not guilty.
[ENTITY] v. [ENTITY] etc. 7 The charges against the other two accused [ENTITY] and [ENTITY] were framed vide order dated 10.01.2008, u/[SECTION] r/[SECTION] [ACT], to which they pleaded not guilty.
8 The prosecution in support of its case examined 33 witnesses in all.
9 PW1 [ENTITY] was the son of the owner of the Taxi Stand M/s K. D. Taxi Services from where the accused [ENTITY] and [ENTITY] had hired the car Indica taxi to attend a marriage at Palwal. The said vehicle along with the driver [ENTITY], deceased, was made available to the accused persons on 05.05.2006, but the vehicle and the driver failed to return in the night and even on the next day. The efforts were made for tracing out the vehicle and the driver on 06/07.05.2005 but to no avail. Eventually, mother of the deceased lodged a complaint with the police on 07.05.2005 and when the vehicle of the deceased could not be traced, [ENTITY], owner of the taxi got the FIR registered on 10.05.2005. Thereafter, it is deposed by him that he had joined investigations with the police on 11.05.2005 for tracing out the accused persons. Again on 12.05.2005, he had accompanied the police to Aligarh for inquiries and at PS Akrabad they came to know that one dead body had been recovered, whom they identified from the clothes and photographs to be that of driver [ENTITY]. The photographs and the clothes of the deceased and other articles were obtained by the police from the police officials of PS [ENTITY] v. [ENTITY] etc. Akrabad, which were seized vide memo Ex.PW1/B. He again joined investigations with the police on 29.05.2005 and was a witness to the arrest of accused [ENTITY] and [ENTITY], from their house at Saurav Vihar, Jaitpur Extension. He was also a witness to the recovery of watch from [ENTITY] and recovery of number plates and documents of the Indica Car at the behest of the accused [ENTITY]. The disclosure statement of the accused [ENTITY] and [ENTITY] were recorded by the police by Ex.PW1/B and Ex.PW1/C. The watch was seized vide memo Ex.PW1/D. The number plate was seized vide memo Ex.PW1/E and the documents of car were seized vide memo Ex.PW1/F. He further joined the investigations with the police in the arrest of accused [ENTITY] from Badarpur Border along with the Indica Car, which was seized by the police by memo Ex.PW1/G. The Toll Tax receipt for the money paid by [ENTITY] to cross the Toll Gate on the said date to come towards Delhi was seized vide memo Ex.PW1/H. The warranty card Ex.PW1/2 of the wrist watch was seized from the possession of [ENTITY] vide memo Ex.PW1/J. 10 PW2 [ENTITY], the father of the PW1 was the owner of Taxi Stand M/s K. K. Taxi Service, Prahlad Pur, New Delhi, who has corroborated the testimony of PW1 in respect of the hiring of the Indica Car by one [ENTITY] on behalf of the accused [ENTITY] and [ENTITY]. He has proved his complaint Ex.PW2/A in regard to the missing of the driver deceased [ENTITY], on which the FIR was registered. The photocopy of the [ENTITY] v. [ENTITY] etc. RC and insurance was supplied by him to the Investigating Officer on 10.05.2005, which were seized vide memo Ex.PW2/B. 11 PW3 [ENTITY] was the owner of the Indica car, which was being used as a taxi at the Taxi Stand, by the name of M/s K. D. Taxi Services which was being run by his uncle. He had got the car Ex.P1 released on superdari vide superdarinama Ex.PW3/A. The photographs of the car were taken which are Ex.PW7/A1 and Ex.PW7/A2 and the negatives of the photographs are Ex.PW7/A3 and Ex.PW7/A4. 12 PW6 is [ENTITY], the mother of the deceased, who had initially lodged a complaint on 07.05.2005 when her son [ENTITY], who was working as a taxi driver failed to return along with the taxi which he had taken on 05.05.2005. Eventually, a hue and Cry notice was published by the police, which was Ex.PW7/E. She identified the photograph and the clothes, which the deceased was wearing at the time of his death to be those of her son.
13 PW8 [ENTITY] was the brother of the wife of deceased, who had joined the police in search of deceased on 07.05.2005 and had accompanied them to District [ENTITY], UP, to the house of the sister of the accused [ENTITY], where the deceased as well as the accused persons were identified from the photographs. Eventually, on 12.05.2005, on receipt of information about recovery of dead body within the jurisdiction of PS Akrabad, he had gone there and had identified the [ENTITY] v. [ENTITY] etc. deceased from his photograph and his clothes. 14 PW10 [ENTITY] had arranged the Indica car at the behest of accused [ENTITY]. 15 PW24 Ct. [ENTITY] had recorded the missing report of the deceased [ENTITY] on the information given by his mother [ENTITY] on 07.05.2005 vide DD No. 27, copy of which is Ex.PW24/A. 16 PW4 [ENTITY] was handed over the rukka on 10.05.2005 by A[ENTITY], which he took to PW9 Duty Officer [ENTITY], who registered the FIR Ex.PW9/A and handed over the same to [ENTITY] for giving it to A[ENTITY].
17 PW5 [ENTITY] had joined SHO [ENTITY], SI [ENTITY], Ct. [ENTITY] in the arrest of accused [ENTITY] and [ENTITY] on 01.06.2005.
18 PW7 A[ENTITY] had joined the investigations on 29.05.2005 with PW26 SI [ENTITY], Ct. [ENTITY] and [ENTITY] in arrest of accused [ENTITY] and accused [ENTITY]. 19 PW11 SI [ENTITY], PS Akrabad, had recorded the information about the recovery of a dead body of an unknown person from the road going towards Sashni vide DD No. 16 vide Ex.PW11/A. Again on 12.05.2005, he had accompanied A[ENTITY] from Delhi along with his police team and public persons [ENTITY] and [ENTITY] to the police station where they were shown the clothes and photographs of the deceased from which the deceased was identified.
[ENTITY] v. [ENTITY] etc. 20 PW12 SI [ENTITY] of PS Akrabad deposed that on 06.05.2005 at about 09.25 a.m. he received wireless information that Sweeper Jai Parkash had seen a dead body lying on the road side near Village Nanau at a distance of about 500 to 600 meters away from the triangular Chowk going towards Shansi Road. He along with two Constables [ENTITY] and [ENTITY] and Sweeper [ENTITY] (PW21), who met him at outpost Paneti, went to the said spot where some public persons had already gathered. He found sharp edged weapon wounds on the dead body. A panchnama was prepared by him, which is Ex.PW12/A. The site plan was prepared by the SHO [ENTITY], which is Ex.PW11/A. The photocopies were also taken of the scene and the dead body was sealed and sent to District Hospital. The earth control soil with blood and without blood were lifted and sealed and seized vide memo Ex.PW12/B. The pants of the deceased was seized vide memo Ex.PW12/C. [CASE NUMBER] u/[SECTION] [ACT] was registered by PW18 SI [ENTITY], copy of which is Ex.PW18/A. The entry was also made in General Diary at Serial No. 17 in regard to the registration of FIR, copy of which is Ex.PW18/B. Postmortem was got done and on 01.06.2005 one Inspector came from PS Sangam Vihar and he had handed over the articles, photographs and the postmortem report. 21 PW17 [ENTITY] was the Photographer, who had taken the photographs of the dead body on 06.05.2005 at the instance of SI [ENTITY]. The said photographs are [ENTITY] v. [ENTITY] etc.
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Ex.PW17/B1 and Ex.PW17/B2 and their negatives are Ex.PW17/A1 and Ex.PW17/A2.
22 PW22 Dr. [ENTITY], Medical Superintendent, District Hospital, Kannoj, UP, had conducted the postmortem on the dead body and his report is Ex.PW22/A. He also identified the clothes which the deceased was wearing and the Kachcha is Ex.PW22/A-1, two vests in torn condition Ex.PW22/A2, belt is Ex.PW22/A-3, one pair of sandle are Ex.PW22/A4.
23 PW26 SI [ENTITY] was the Investigating Officer, who had conducted the investigations in this case and was joined by PW5 [ENTITY] and PW7 A[ENTITY]. He had got the FIR registered and thereafter along with his police team had arrested accused [ENTITY] and [ENTITY] on 01.06.2005. The two accused had made their disclosure statements admitting that they had committed murder of [ENTITY] and had thrown his body at Sansi Road, Akrabad and had sold the car to one [ENTITY]. A wrist watch was recovered from the wrist of accused [ENTITY], which was sealed in a pullanda and seized vide memo Ex.PW1/D. 24 PW23 [ENTITY] had also proved the said wrist watch as having been sold by him on 21.10.2004 to [ENTITY] vide cash memo, copy of which is Ex.PW23/A. Accused [ENTITY] got recovered two number plates of Indica car from the slab/Taand of his room which was sealed in pullanda and seized vide memo Ex.PW1/A. The accused [ENTITY] [ENTITY] v. [ENTITY] etc.
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[ENTITY] also took out the original documents i.e. a RC and insurance policy from the attachi case of black colour kept on the cot lying in the room which was pertaining to the Indica car and was seized vide memo Ex.PW1/F. Both the accused then led the police team to Badarpur Border, where the accused [ENTITY] arrived in the stolen Indica Car having No.HR-51T-4515 and accused [ENTITY] was apprehended along with the car at the instance of accused [ENTITY] and [ENTITY]. The Toll Tax Receipt is Ex.PW1/M was recovered from the possession of the [ENTITY]. The said Toll Receipt was proved by PW25 [ENTITY] as had been issued by their company BANAS SANDS TT CJV on 30.05.2005 at the Toll Tax of Dadarpur-Delhi Border. The said receipt recovered from [ENTITY] is Ex.PW25/A. The disclosure statement of [ENTITY] is Ex.PW1/K. The taxi Indica Car was seized vide memo Ex.PW1/G which was subsequently released on superdari to PW3 [ENTITY], the owner of the taxi.
25 PW26 SI [ENTITY] also went to Akrabad, District Aligarh, UP, and collected the relevant sealed parcels from MHCM, PS Akrabad and also the pants which was kept open by the police officials vide memo Ex.PW26/A. The site plan of the place where the body was recovered was prepared, which is Ex.PW26/B. 26 PW27 ACP [ENTITY] took over the investigations from 17.05.2005 and had been associated in the investigation along with SI PW26 SI [ENTITY] and other [ENTITY] v. [ENTITY] etc.
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police officials. He had collected the FSL report, which is Ex.PW27/C. 27 PW28 Inspector [ENTITY] had deposed that on 03.05.2007, he had joined investigations along with PW33 SI [ENTITY] of PS Sangam Vihar, who had informed him that the accused [ENTITY], who was a Proclaimed Offender in this case had been arrested from near Batra Hospital. Accused [ENTITY] made a disclosure statement Ex.PW28/A. Thereafter, SI [ENTITY] had apprehended the other accused [ENTITY] at about 09.00 p.m. from Badarpur Border at the instance of accused [ENTITY], who had made a disclosure statement Ex.PW28/B. 28 PW29 [ENTITY] and PW13 [ENTITY] had joined PW33 SI [ENTITY] in the arrest of the accused [ENTITY] and [ENTITY]. 29 PW31 was Sh. [ENTITY], Secretary, Legal Aid, who had proved the TIP proceedings of accused [ENTITY] and [ENTITY], which are Ex.PW31/B and Ex.PW31/C respectively. Both the accused had refused to join the TIP proceedings on the ground that their photograph had already been shown to the witnesses.
30 PW32 Sh. [ENTITY], Addl. Registration Clerk, Office of Registering Authority, Faridabad, Haryana, had deposed that the Indica Car bearing No. HR-51F-9172 was originally registered on 05.04.2000 in the name of [ENTITY] and was subsequently transferred in the name of [ENTITY] vide [ENTITY] v. [ENTITY] etc.
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endorsement dated 01.04.2003 and the copy of the register containing the relevant entry is Ex.PW32/A. 31 The statement of all the accused persons were recorded separately u/[SECTION] [ACT], in which they pleaded their innocence.
32 Ld. Additional PP on behalf of the [ENTITY] had argued that the evidence led by the prosecution sufficiently proves the culpability of the accused persons of having committed the murder of [ENTITY].
33 Ld. counsel on behalf of accused persons [ENTITY] and [ENTITY] has argued that there is no direct witness to the commission of the alleged offence and the case of the prosecution rests on circumstantial evidence. The first link in the sequence of events, which is required to be proved is the motive, but there is no evidence whatsoever led by the prosecution in respect of the motive. There is also no prosecution witness examined, who had last seen the deceased in the company of the accused persons. The only testimony is that of PW10 [ENTITY], who had deposed that the Indica Car had been hired by accused [ENTITY]. However, there is no evidence further to show that accused [ENTITY] had ever travelled in the said vehicle or that he was ever seen in the company of the other accused persons and the deceased. As per the prosecution, [ENTITY] had been accompanied by accused [ENTITY] for hiring of Indica Car from PW10 [ENTITY], but PW10 [ENTITY] had [ENTITY] v. [ENTITY] etc.
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failed to identify accused [ENTITY]. There is no incriminating evidence against accused [ENTITY] and [ENTITY] except that of PW10 [ENTITY], which also cannot be considered to be sufficient to bring home the guilt of murder against the accused persons.
34 Ld. counsel on behalf of accused [ENTITY] has argued that as per the prosecution accused [ENTITY] was arrested on 30.05.2005 by SI [ENTITY], but in fact he had been lifted from his house on 25.05.2005, for which a telegram had also been sent by his further to the Superintendent of Police. The claim of SI [ENTITY] that he arrested accused [ENTITY] and [ENTITY] on 29.05.2005 from their tenanted premises stands totally falsified. Once the arrest itself has been held to be fabricated, the subsequent alleged recovery of the original number plates and the original RC and Insurance cover of the Indica Car itself become suspect. It is further argued that the only incriminating evidence against accused [ENTITY] was the wrist watch which [ENTITY] was allegedly wearing at the time of his arrest and actually belonged to the deceased. However, there is no evidence whatsoever to show that the said watch was belonging to [ENTITY]. PW23 [ENTITY] had also deposed that the said watch had been sold to [ENTITY]. [ENTITY] had deposed in his testimony that he had given the said watch to the deceased, but that in itself is not sufficient to prove that the wrist watch recovered from the [ENTITY] was actually that of the deceased. In this context, it has been further argued that [ENTITY] v. [ENTITY] etc.
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there was no mention that the deceased was wearing watch when he left and the recovery of the watch has also been shown from [ENTITY] after almost a month. Therefore, the presumption u/[SECTION] of [ACT] cannot be drawn against the accused [ENTITY]. Also, it does not appeal to reason as to why the accused [ENTITY] would retain the wrist watch of the deceased so that he could be easily implicated in this case. It is, therefore, argued that there is no cogent evidence against any of the accused persons and they are all entitled to be acquitted.
35 So far as accused [ENTITY] is concerned it is submitted that he was a bona fide purchaser of the Indica Car and was not even aware of the car being involved in any commission of offence.
36 It is further submitted that the first missing report had been lodged by the mother of the deceased only after two days. There is no explanation forthcoming as to why the report had not been lodged by the taxi owner, who had sent his car along with deceased. Furthermore, there is no documentary evidence to show that [ENTITY] was the taxi owner or that he had given the said taxi on hire to the accused [ENTITY] and [ENTITY]. The taxi, as per the prosecution, had been hired by PW10 Sh. [ENTITY], but there is no explanation even as to why [ENTITY] did not join in the search of the Indica car. It is, thus, submitted that all the accused are entitled to be acquitted for want of evidence.
[ENTITY] v. [ENTITY] etc.
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37 I have heard the arguments and gone through the evidence led therein. My observations are as under : 38 There is no direct evidence of the commission of the offence. It is a case, which is based on the circumstantial evidence. The principles which guide the appreciation of evidence in such cases has been reiterated in time and again in various cases by Supreme Court and High Courts, but it would still be appropriate to reiterate those principles for the proper appreciation of the facts in this case. 39 In "Sharad Birdhichand Sarda v. [ENTITY] of Maharashtra, (1984) 4 SCC 116", the Supreme Court has laid down the five tests to be satisfied in a case based on circumstantial evidence :
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion [ENTITY] v. [ENTITY] etc.
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consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
40 In the light of these parameters the evidence of the prosecution needs to be appreciated to conclude if the incriminating facts made a complete chain leading to the irresistible conclusion in regard to the guilt of the accused persons.
41 The first most crucial witness examined by the prosecution is PW10 [ENTITY], who has deposed that accused [ENTITY] had approached him for hiring of a taxi to go to Palwal to attend a marriage at Palwal along with his friends as they had missed the bus. [ENTITY] had only a Maruti Van available to him but accused [ENTITY] wanted a car and on his insistence he contacted [ENTITY] of K. D. Taxi Services, who was known to him since last many years and asked him to send an Indica Car and on his request one Indica Car along with a driver was sent which was taken away by accused [ENTITY]. It was further deposed by the witness that the accused [ENTITY] was accompanied by another person, but he did not recognize the said person. He also failed to identify accused [ENTITY] as the same person, who had accompanied [ENTITY] on the said day.
42 PW1 [ENTITY] of K. D. Taxi Services in his testimony has corroborated the testimony of PW10 [ENTITY] and had [ENTITY] v. [ENTITY] etc.
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deposed that on 05.05.2005 on the request of [ENTITY] ([ENTITY]) he had sent his taxi Indica car bearing no. HR-51F-9172 of which deceased [ENTITY] was the driver. It was also deposed by him that [ENTITY] had disclosed that the taxi was required by the persons known to him viz. [ENTITY] and [ENTITY] as they were to attend a marriage at Palwal. The vehicle was taken by the driver [ENTITY] at about 07.00 p.m. on 05.05.2005 but the driver along with the car failed to return on 06.05.2006 and a search was commenced by the family members of the driver [ENTITY] in which he also joined and they went to the houses of [ENTITY] and [ENTITY], but they were not found present and they came to know that accused [ENTITY] and [ENTITY] along with two other persons viz. [ENTITY] and [ENTITY] had gone to Palwal. The rooms of accused [ENTITY] and [ENTITY] were found to be locked. However, when they were unable to trace the driver and the vehicle, a complaint was made on 07.05.2005 by the mother of the driver [ENTITY], on the basis of which DD No.27 Ex.PW24/A was registered. When ultimately the vehicle could not be traced till 10.05.2005, his father [ENTITY] lodged a complaint with PS Sangam Vihar, which is Ex.PW1/A. 43 Testimony of PW1 is corroborated by PW2 [ENTITY], who is the father of [ENTITY] and owner of K. D. Taxi Services. He had also deposed that the efforts were made to trace out the accused persons, but they were not available at their houses and eventually he made a complaint to the police on 10.05.2005.
[ENTITY] v. [ENTITY] etc.
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44 PW6 [ENTITY], is the mother of the deceased, who has deposed on similar lines as PW1 [ENTITY] and PW2 [ENTITY]. She has further deposed that when her son did not return in the night, she had called him on a mobile phone provided to him by the owner of the Taxi Stand, and her son had told him that he was hungry and that he shall come back early in the morning. However, he failed to return and then she got in touch with [ENTITY] and [ENTITY], the Taxi owners and they all made a search for the car and the driver. They went to the house of accused [ENTITY] and from there [ENTITY] told that he had got a telephone number of [ENTITY], UP, from the father of accused [ENTITY], who had told that after attending the marriage at Ballabhgarh, they had gone to the house of his sister at [ENTITY]. She made a phone call at the given number and the phone was picked up by one girl, who disclosed that four boys had come in the vehicle and their clothes were blood stained and some blood stains were also there on the seat of the vehicle and that they all had gone to wash their clothes and vehicle. She confronted [ENTITY] and hot words were exchanged between them. She again made a call to [ENTITY] and was assured by father of [ENTITY] that the boys had gone to [ENTITY] and would come after 3 - 4 days but eventually she gave complaint in the police station. [ENTITY] Ex.PW7/E was issued by the police for tracing out her son.
45 [ENTITY] along with one person was sent by [ENTITY] v. [ENTITY] etc.
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father of [ENTITY] had then gone to Village Illiyas, District [ENTITY], UP, and shown the photographs of accused [ENTITY], to which she had replied that [ENTITY] along with his two associates had come to her house in the Indica Car, but deceased [ENTITY] was not with them. 46 PW1 [ENTITY], however, in his testimony has deposed that after meeting the father of accused [ENTITY] on1 1.05.2005, they had gone to the house of accused [ENTITY], where they met his father [ENTITY], who informed them that accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] had gone to Aligarh and their whereabouts may be ascertained from Aligarh. 47 The testimony of these witnesses, therefore, bring out that on 05.05.2005, Indica car bearing No. HR-51F-9172 of which deceased [ENTITY] was a driver, had been sent by PW1 [ENTITY] to PW10 [ENTITY] on his request as it was required on hire by accused [ENTITY] for himself and his friends, who wanted to go to Palwal for attending the marriage. 48 What needs to be examined is what are the incriminating facts which emerged from the testimony of these witnesses. Testimony of PW10 [ENTITY] brings forth for the Indica car had been hired by accused [ENTITY] on 05.05.2005. He was unable to identify the accused [ENTITY], who according to the prosecution was accompanying [ENTITY] on that evening.
49 There apparently seems to be a contradiction in [ENTITY] v. [ENTITY] etc.
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the testimony of PW1 [ENTITY], PW8 [ENTITY] and PW6 [ENTITY]. As per information received by PW6 telephonically after attending the marriage at Ballabhgarh, they had gone to house of his sister at [ENTITY]. However, as per PW1 they were informed by the father of accused [ENTITY] that they had gone to Aligarh. First and foremost, there is no independent evidence to show that all the four accused persons had travelled together in the car to attend marriage in Ballabhgarh. There is no evidence to show that there was in fact a marriage at Ballabhgarh, which was attended by the accused persons or that vehicle had travelled Aligarh or [ENTITY]. The testimony of PW10 may have established that the vehicle was hired by [ENTITY], but beyond that there is no evidence whatsoever to show that after hiring the vehicle accused [ENTITY] along with the other three accused persons had in fact travelled to Ballabhgarh. The hiring of the vehicle by [ENTITY] may be an incriminating fact, but in itself is not sufficient to conclude that he was guilty of murder of deceased [ENTITY]. 50 The only other evidence against accused [ENTITY] was his arrest by PW33 SI [ENTITY] on 03.05.2007, i.e. after about two years, from near Badarpur Border and his disclosure statement Ex.PW28/D. There is no other independent evidence which could have connected the accused [ENTITY] with the commission of the offence.
51 The only incriminating evidence that has been produced against accused [ENTITY] was only of having hiring [ENTITY] v. [ENTITY] etc.
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the vehicle, but besides that there is no independent evidence from where it could be concluded beyond reasonable doubt that accused [ENTITY] had committed the murder of deceased [ENTITY].
52 Similarly, the only incriminating evidence against accused [ENTITY] was of having accompanied accused [ENTITY] on 05.05.2005, but the sole witness to this fact was PW10 [ENTITY], who in his testimony failed to identify [ENTITY]. In his cross-examination he had deposed that accused [ENTITY] was known to him from before as he used to accompany accused [ENTITY] when he used to come to him for repair of batteries. But he stated that the person, who had accompanied accused [ENTITY] on 05.05.2005 was not [ENTITY]. Besides this, the only other evidence against accused [ENTITY] was his arrest by PW33 SI [ENTITY] on 03.05.2007 from Near Batra Hospital and his disclosure statement Ex.PW28/A was recorded. Again, the disclosure statement per se is not admissible in evidence and there is no other evidence to show that [ENTITY] had travelled in the Indica Car, which had driven by deceased [ENTITY] or that he was in any way involved in the commission of the offence. In the absence of any independent witness linking the accused [ENTITY] with the commission of the murder, he has to be given the benefit of doubt.
53 The other two accused are [ENTITY] [ENTITY] v. [ENTITY] etc.
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and [ENTITY]. PW7 A[ENTITY] was posted at PP Pul Prahlad Pur and was handed over the DD no. 27 Ex.PW1/A in regard to missing of deceased [ENTITY] on 07.05.2005. During the investigations, he had made the efforts to trace out the accused persons as well as the deceased and the vehicle. On 12.05.2005, he along with the PW8 [ENTITY], PW1 [ENTITY] and [ENTITY] had gone to Aligarh, UP in search of accused [ENTITY] and [ENTITY] and reached PS Akrabad of District Aligarh, UP, where they came to know that a dead body was recovered within their jurisdiction and they had shown photographs of the deceased from which [ENTITY] and [ENTITY] identified the person to be the present deceased [ENTITY]. An FIR u/[SECTION] [ACT] was, thus, registered. 54 On 29.05.2005, he joined investigations with PW26 SI [ENTITY], PW27 Inspector [ENTITY], [ENTITY] and [ENTITY] and public witness [ENTITY] in search of the accused persons. On the basis of the secret information they all reached to the room in House No. 166, Jaitpur Extension, Saurav Vihar, New Delhi, where accused [ENTITY] and [ENTITY] were found sitting outside the room on a cot and both were apprehended. Accused [ENTITY] made a disclosure statement Ex.PW1/B and got recovered two number plates of Indica car from a Taand / slab and handed over the same to the Investigating Officer, which were seized and sealed vide memo Ex.PW1/E. Thereafter, he also produced the original documents of the vehicle i.e. RC and Insurance [ENTITY] v. [ENTITY] etc.
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Policy from a ataichi case of black colour which was lying on the cot, which was seized vide memo Ex.PW1/F. 55 The accused [ENTITY] had also made a disclosure statement Ex.PW1/C and he was found to be wearing a watch which was identified by [ENTITY] to be one which he had given to deceased [ENTITY]. Thereafter, the two accused i.e. [ENTITY] and [ENTITY] led the police to Badarpur Border and got apprehended [ENTITY] along with the Indica Car, which they had stated that they had sold to the accused [ENTITY] and they were to get the balance amount from [ENTITY] and also were to handed over the original documents of the vehicle to him.
56 From the testimony of these prosecution witnesses, the incriminating evidence that has brought against accused [ENTITY] is recovery of number plates and original documents of the Indica car of which the deceased was the driver. The recovery had been effected on 29.05.2005 i.e. after about 20 days of this vehicle had been taken by deceased on 05.05.2005. The recovery of number plates and the original documents is not beyond suspicion or it is difficult to accept that any person, who is actually involved in commission of offence, would preserve and hide the original number plates and the documents in his own house for the police to conveniently recovery from the accused. Moreover, if the vehicle was sold to accused [ENTITY] then the original documents would have naturally been handed over to him at [ENTITY] v. [ENTITY] etc.
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the time of the sale of car and there was no reason for the original documents to have been preserved by the accused [ENTITY]. The recovery of original number plates and the original documents from the house of accused [ENTITY] is not beyond suspicion. Moreover, except this recovery of number plates and original documents of the case, there is no other incriminating evidence against the accused [ENTITY]. From this recovery simplicitor it cannot be concluded that accused [ENTITY] had travelled with the other accused persons in the car or was in any manner involved in the murder of deceased [ENTITY]. The recovery of number plates and documents from accused [ENTITY] is not above suspicion and there is no other incriminating evidence against him. 57 Accused [ENTITY] had been apprehended on 29.05.2005 along with accused [ENTITY]. Besides his disclosure statement Ex.PW1/C, he was found wearing a watch, which was identified by PW1 [ENTITY] as belonging to deceased since he had given him as a gift. To corroborate the testimony of PW1 [ENTITY] in regard to purchase of watch by him, PW23 [ENTITY] has been recorded, who was the owner of a watch shop and deposed that he had sold the watch to PW1 [ENTITY] and had also given a guarantee card, which is Ex.PW1/2. The testimony of PW23 [ENTITY] coupled with that of PW1 [ENTITY] only proves that the said watch had been purchased by PW1 [ENTITY]. However, there is no evidence [ENTITY] v. [ENTITY] etc.
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on record to show that same was gifted by PW1 [ENTITY] to the deceased driver [ENTITY] except the testimony of PW1 [ENTITY] himself. There is also no evidence to show that deceased [ENTITY] was wearing the said watch when he had left along with the Indica car on 05.05.2005. Moreover, as already mentioned above it is difficult to accept that after murder, the accused [ENTITY] would have kept the watch of the deceased with himself for his easy identification. There is no evidence led by the prosecution which could establish that the watch recovered from accused [ENTITY] was in fact worn by deceased at the time he was killed. The said recovery of watch from accused [ENTITY] is also not believable.
58 Besides the recovery of this watch from accused [ENTITY] and his disclosure statement, there is no other incriminating evidence against him including any last seen evidence from where the accused [ENTITY] could be held guilty. 59 The accused [ENTITY] and [ENTITY] had led to the arrest of accused [ENTITY] in the morning on the next day, from the Badarpur Border. Accused [ENTITY] was found in possession of the Indica car.
60 Accused [ENTITY] may have been found in possession of the car at Badarpur Border, but there is no evidence on record to show that [ENTITY] had purchased this car knowing it to be stolen car or that he was aware that it was stolen properly. In the absence of any evidence on this aspect it cannot be said that accused [ENTITY] had purchased this [ENTITY] v. [ENTITY] etc.
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property knowing it to be a stolen property and hence, no offence u/[SECTION] [ACT] is made out against accused [ENTITY]. 61 Besides all the evidence discussed above against all the accused persons, it is pertinent to mention that the deceased was carrying a mobile phone and the accused persons were also having mobile phones. The call details of these mobile phones of the accused persons and the deceased could have established with reasonable certainty the location of the accused persons and the deceased. Moreso, PW6 [ENTITY] had deposed that when she did not receive a call from her son on the day when he had gone out of Delhi, she had called him on the mobile and he had told her that he was hungry and was going to have his food. The call details were, thus, an important piece of evidence, but for the reasons best known to the Investigating Officer, the call details of neither the deceased nor the accused persons, had been collected. 62 To sum up there is no incriminating evidence brought against accused [ENTITY] and [ENTITY] except their disclosure statements, which could establish their complicity in the commission of murder of deceased [ENTITY]. Likewise, against accused [ENTITY] besides his disclosure statement there was only a recovery of number plates and original documents of the car even if considered to be incriminating were not sufficient to prove the offence u/[SECTION] [ACT]. Likewise, against accused [ENTITY] besides his disclosure statement and recovery of the watch of the [ENTITY] v. [ENTITY] etc.
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deceased, which he was wearing, which again is not sufficient to prove his guilt. The prosecution has also not been able to prove that [ENTITY] had purchased the car knowing it to be the stolen property and no offence u/[SECTION] [ACT] is made out. No offence u/[SECTION] [ACT] made out against any of the accused persons as deceased had not been abducted; in fact, it was the case of the prosecution that the vehicle and its driver had been taken on hire by the accused persons. No offence of the abduction or of conspiracy to abduct and murder the deceased has been proved against any of the accused persons. 63 The prosecution though has brought some incriminating evidence against accused persons, like hiring of taxi by accused [ENTITY] and recovery of taxi at the instance of accused [ENTITY] and [ENTITY], but is not sufficient to arrive at a conclusion of abduction and murder of deceased [ENTITY] by the accused persons. The benefit of doubt has to be extended to the accused persons, who are hereby acquitted. Bail bond and surety bond of accused [ENTITY] is discharged.
64 File be consigned to the Record Room.
Announced in the open Court on 07th Day of June,2012.
([ENTITY]) ASJ-01/PHC/New Delhi [ENTITY] v. [ENTITY] etc.