IN THE COURT OF SH. YOGESH KHANNA, ADDITIONAL SESSIONS JUDGE - 02 (SOUTH) : SAKET COURTS : NEW DELHI Unique ID No. 02402R021862011 [CASE NUMBER] FIR No. 104/2011 P.S. Fatehpur Beri, New Delhi. U/[SECTION] [ACT] [ENTITY] (Govt. of NCT of Delhi) Complainant. Versus ([ENTITY] S/o Shri Ghanshyam R/o House No. 158, Shanti Colony, Mandi Pahari, New Delhi. ([ENTITY] S/o Shri Natholi, R/o Shanti Colony, Mandi Pahari, New Delhi. Accused persons. Date of Institution : 30-8-2011 Arguments concluded on : 10.04.2012 Date of Decision: 28.04.2012 JUDGMENT
1. On 21-05-2011 on receipt of DD No. 9-A, P.S Fatehpur Beri, New Delhi, SI [ENTITY] reached Shanti Camp, Mandi Pahari, where he found a dead body of one [ENTITY] @ [CASE NUMBER] P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ [ENTITY] S/o Shri [ENTITY]. One [ENTITY], the brother of deceased, was also present and he made the following statement :
"that he is residing at house no. 5, Village Jonapur, New Delhi, and is a driver by profession, working at Vasant Kunj, New Delhi. Deceased [ENTITY] was his brother, who was earlier a conductor in Blue Line Bus, but since some time he was unemployed.
On 20-5-2011, at about 7 PM, when he was present at his house, two persons, namely, [ENTITY] and [ENTITY], both resident of Shanti Camp, Mandi Pahari, and friends of [ENTITY], came on a scooter bearing no. DL-3SAL-3851, being driven by [ENTITY] and they called [ENTITY]. They told that they are going to the house of one [ENTITY] for celebrating the birthday of his daughter and [ENTITY] has to accompany them. [ENTITY] went along with both of them on their scooter but he did not return till 11 PM.
Next day i.e. on 21-5-2011, at about 7 AM, someone told him that the dead body of [ENTITY] is lying in a querry at Shanti Camp, Mandi Pahari, Delhi. He reached there and found the dead body of his brother.
[ENTITY] was prepared by SI [ENTITY] and on its basis FIR No. 104/2011, under [SECTION] [ACT], was registered at P.S Fatehpur Beri, New Delhi.
2. During investigation, the accused person were arrested P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ and after completion of investigation, the charge sheet was filed. The case was committed to this court, being a Session's triable case. On 30-9-2011, a charge under [SECTION] [ACT] was framed against both the accused person, to which they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution had examined as many as 17 witnesses. Before proceeding further, it would be appropriate to state in brief, the depositions made by the prosecution witnesses.
PW1 [ENTITY] [ENTITY] had taken the photographs of the spot where the dead body was lying and proved such photographs as Ex.PW1/A-1 to Ex.PW1/A-15 and its negatives as Ex.PW1/B-1 to Ex.PW1/B-15.
PW2 [ENTITY] [ENTITY] took rukka from the spot and got the FIR registered. Then he returned at the spot and handed over the copy of the FIR and original Tehrir to Insp. [ENTITY].
PW3 [ENTITY] [ENTITY], on 21-5-2011, had delivered the copies of the FIR to the Ld. MM of the area and to the senior police officers.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ PW4 [ENTITY] [ENTITY] had taken the dead body to AIIMS, Trauma Centre, New Delhi. After the postmortem the doctor had given him the sealed pullanda, sealed with the seal of JPNATC, AIIMS along with a sample seal, seized by the investigating officer vide memo Ex.PW4/A. PW5 Shri [ENTITY] is the complainant.
PW6 Shri [ENTITY] had identified the dead body vide statement Ex.PW6/A. PW7 Shri [ENTITY] is yet another public witness. PW8 Shri [ENTITY] had telephoned police on 100 number from his mobile phone, informing the lying of a dead body at the spot.
PW9 SI [ENTITY] prepared the scaled site plan Ex.PW9/A. PW10 SI [ENTITY] was the first to reach the spot on receipt of DD No. 9-A. He examined the dead body. During that time, the brother of deceased had also reached there. The SHO also reached the spot. PW10 recorded the statement of [ENTITY] and prepared a [ENTITY] Ex.PW10/A. He then got the FIR registered. Further investigation was entrusted to Inspector [ENTITY], who P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ lifted the blood ; earth control from the spot ; put it in separate plastic boxes, sealed it with seal of AKS and seized the same vide memos Ex.PW10/B and Ex.PW10/C. Crime team also reached the spot. Dead body was sent for postmortem. Exhibits given by the doctor after the postmortem, were also seized by the investigating officer vide memo Ex.PW4/A. PW11 SI [ENTITY], In-charge, Crime Team had inspected the spot on 21-5-2011 and prepared his report Ex.PW11/A. PW12 [CASE NUMBER] had recorded FIR Ex.PW12/A and made endorsement Ex.PW10/A on [ENTITY].
PW13 [ENTITY] had joined the investigating officer at the time of the arrest of accused person and recoveries were made in his presence.
PW14 [ENTITY], MHC(M), proved the relevant entries in Register No. 19 regarding deposit of the case property and sending it to the FSL. Such entries were proved as Ex.PW14/A and Ex.PW14/B. The copy of the Road Certificate was proved as Ex.PW14/C. PW15 Inspector [ENTITY], the investigating officer, to whom the investigation was entrusted after the registration of P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ FIR, prepared the site plan Ex.PW15/A ; collected blood and earth control with blood and without blood vide memos Ex.PW10/B and Ex.PW10/C ; prepared inquest papers Ex.PW15/B ; recorded statements qua identification of the dead body as Ex.PW6/A and Ex.PW5/B. He made request Ex.PW15/C for postmortem of the dead body and seized the pullandas and sample seal, given by the doctor after postmortem, vide memo Ex.PW4/A. On 22-5-2011 PW5 along with other staff reached Shanti Colony at about 4:30 PM and started checking the vehicles. At about 5:15 PM, they apprehended both the accused, coming on a scooter bearing no. DL-3SAL-3851, without helmets. They were interrogated and arrested vide memo Ex.PW13/A and Ex.PW13/B ; their personal searches were conducted vide memo Ex.PW13/C and Ex.PW13/D ; their disclosures Ex.PW13/E and Ex.PW13/F were recorded ; the scooter along with its key was seized vide memo Ex.PW13/G. Accused [ENTITY], in lieu of his disclosure, got recovered a [ENTITY] of white colour having blood stains, seized vide memo Ex.PW13/J. He also got recovered his clothes viz pant and shirt, also seized vide memo Ex.PW13/H. Accused P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ [ENTITY] also got recovered his blood stained clothes viz., pant and a shirt, seized vide memo Ex.PW13/K. Thereafter, both the accused got recovered a concrete stone from near the spot, having blood stains on it, seized vide memo Ex.PW13/M. All the articles seized, were sealed with the seal of AKS in a cloth parcel . Pullandas were deposited in the malkhana and a pointing out memo Ex.PW13/L was also prepared at the instance of accused person.
On 31-5-2011, the pullanda of [ENTITY] and of stone were sent to the doctor, for his further opinion. His subsequent opinion Ex.PW16/B was also received. The scaled site plan was then got prepared ; on 21.07. 2011 exhibits were sent through [ENTITY] [ENTITY] to FSL, Rohini. The DD entries were also proved on record. The FSL result was also proved as Ex.PW15/D and Ex.PW15/E. The case property viz the stone was proved as Ex.P1; [ENTITY] as Ex.P2 ; Pant and Shirt of accused [ENTITY] as Ex.P3 and Ex.P4 ; the pant and shirt of accused [ENTITY] were identified as Ex.P5 and Ex.P6 and the scooter with its key as Ex.P7 and Ex.P8.
PW16 Dr. [ENTITY] proved the postmortem report P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ Ex.PW12/A, prepared by Shri [ENTITY], wherein the cause of death was opined to be shock due to head and face injuries produced by blunt force impact. Injuries no. 1, 2 and 3 were sufficient to cause death in ordinary course of nature, individually or in combination. He also proved the subsequent opinion dated 6-6-2011 ( Ex.PW16/B ) of Dr. [ENTITY]. As per the doctor injury no. 3 could be caused by [ENTITY] and other injuries by the stone.
During the cross examination PW16 deposed that injuries, mentioned in postmortem report, were unlikely to be caused due to a fall from a height.
PW17 [ENTITY] [ENTITY], from Police Head Quarter, brought the PCR form Ex.PW17/A, showing that on 21-5-2011 at 6:30 AM, an information was received from mobile no. 9891388499 of lying of a dead body on the back side wall of Mandi Valley Farm House no. 1.
4. After completion of the prosecution evidence, the statements of accused person, under [SECTION] [ACT], were recorded, wherein they denied the incriminating evidence and deposed that they have been falsely implicated. P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/
5. On the basis of the above depositions, it was argued by the Ld. Additional Public Prosecutor that the accused be convicted for the offence, they have been charged, but whereas Ld. Counsel for the accused persons argued that there is no iota of evidence against both the accused person and further the story of prosecution is full of contradictions and hence, benefit of doubt be given to both the accused.
6. I have heard the arguments advanced by both sides and have perused the material available on record, especially the statement of public witnesses included the complainant. LAST SEEN PW5, [ENTITY], the brother of deceased, had supported his complaint Ex.PW5/A and had deposed that his brother [ENTITY], earlier was working as conductor in A blue line bus but since some time was looking for another job. On 20-5-2011, PW-5 was present at his house along with his brother [ENTITY], since deceased, when both the accused, namely, [ENTITY] and accused [ENTITY], also known to him from earlier, came at his house on a scooter bearing no. DL-3SAL-3851 and called his brother [ENTITY] for P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ taking him to the house of [ENTITY] to celebrate the birthday of the daughter of [ENTITY]. His brother, [ENTITY], since deceased, accompanied both the accused person on their scooter, but did not return till 11 PM. Though PW5 searched his brother but could not find him in the night. Next day i.e. on 21-5-2011 in the morning, someone informed PW5 that the dead body of [ENTITY] was lying at Shanti Camp, Mandi Pahari, Delhi. He reached there and found dead body of his brother [ENTITY]. He also deposed that 10-15 days prior to the day of incident his brother [ENTITY] had a quarrel with accused [ENTITY] and accused [ENTITY], which was resolved by him. He also identified and received the dead body of his brother, after postmortem vide statements Ex.PW5/B and Ex.PW5/C. During his cross examination he deposed that he knew both the accused person from about 1 years prior to the incident as they used to roam along with his brother [ENTITY], since deceased, and that both of them used to visit his house occasionally. PW5 since was not aware of the addresses of both the accused person, hence he could not search his brother in their houses, in the night of 21-5-2011. P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/
7. Now let me examine the statement of PW7 [ENTITY], who was celebrating his daughter's birthday on said day. He deposed that deceased [ENTITY] came at his house, on his daughters' birthday. [ENTITY], since deceased was accompanied by accused [ENTITY]. PW-7 did not deposed anything about accused [ENTITY], if he also accompanied the deceased on that day. PW7 reiterated this fact even during his cross examination by the Ld. Additional P.P for the [ENTITY], since was declared hostile, qua the role of accused [ENTITY]. However, in his cross examination, PW7 further clarified that accused [ENTITY] and deceased, though came to his house, but stood outside, only for 2-3 minutes, and then they both left, but he can not say whether on foot or by any vehicle. He further deposed that when he met [ENTITY] and accused [ENTITY], they both were under the influence of liquor. PW-7 further deposed that he do not know which way the deceased and accused [ENTITY] had gone, after leaving his house.
8. After examining both these witnesses viz., PW5 and PW7, let me find out who was lastly in the company of P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ deceased. As per the deposition of PW5, both the accused had accompanied the deceased to the house of PW7 on their scooter, being driven by accused [ENTITY], to celebrate the birthday of the daughter of PW-7 that night. Thus, PW7 had lastly seen his brother [ENTITY], since deceased, in the company of accused persons.
PW7 [ENTITY] confirms the fact that on 20-5-2011, he was celebrating the birthday of his daughter at his house but he further deposed that deceased had come to his house accompanied by accused [ENTITY] only. He did not say if accused [ENTITY] was with [ENTITY], since deceased, at that time. PW7 also deposed that both accused [ENTITY] and [ENTITY], since deceased, were under the influence of liquor when they had reached his house and they had stayed at his house only for 2-3 minutes and then had left.
A combined reading of depositions of PW5 and PW7 would only show that deceased was lastly seen in the company of accused [ENTITY] only. The case of the prosecution qua accused [ENTITY], also was allegedly seen lastly in the company of with deceased, has suffered a set back due to denying of this fact by PW7 [ENTITY]. The deposition P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ of PW7 [ENTITY] had created a doubt if accused [ENTITY] also accompanied deceased and accused [ENTITY] to the house of PW-7. It appears that they all together left the house of PW5, but accused [ENTITY] may have parted with the company of deceased and co-accused [ENTITY] on his way to the house of PW7 [ENTITY]. The deposition of PW7 thus had created a serious doubt qua involvement of accused [ENTITY] as an important incriminating fact of his lastly been in the company of deceased stands not proved by the prosecution beyond reasonable doubt.
However, the prosecution, through the testimonies of PW5 and PW7 have, sufficiently proved that accused [ENTITY] was lastly seen with [ENTITY] , since deceased. [ENTITY]ment U/[SECTION] [ACT]
9. A bare perusal of statement under [SECTION] [ACT] of the accused, would show that accused [ENTITY] has denied all incriminating evidence, as also the fact that he was ever in company of deceased on that fateful night. It is thus argued by the prosecution that accused [ENTITY] has given a patently false explanation, which certainly should go P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ against him. Reference is made to Joseph vs. [ENTITY] of Kerala", AIR 2000 SUPREME COURT 1608, wherein the following observations were made :
"The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilty of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant.
During the time of questioning under [SECTION] [ACT], the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could if at all have been only explained by the appellant and by nobody else they being personally and exclusively within his knowledge. Of late, courts have from the falsity of the defence plea and false answers given to court when questioned found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed ( see [ENTITY] of Maharashtra vs. Suresh, 2000(1) SCC
471). That missing link to connect the appellant-accused we find in this case provided by the blunt and outright P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ denial of everyone and all the incriminating circumstances pointed out which in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under [SECTION] for committing the murder of [ENTITY] and for robbing her of her jewellery worn by her - MOs 1 to 3 under [SECTION]).
RECOVERIES
10. Now coming to the arrest and recoveries effected at the instance of accused person. The police officials viz PW15, Inspector [ENTITY] and PW13 [ENTITY], have deposed that accused [ENTITY] got recovered a blood stained [ENTITY] Ex.P2 and also led to the recovery of his blood stained pant Ex.P5 and shirt Ex.P6 and that accused [ENTITY] also led to the recovery of a blood stained pant and shirt viz Ex.P3 and Ex.P4 respectively, which they both were allegedly wearing at the time of incident. Both the accused also got recovered a blood stained stone Ex.P1 about 40 meters away from the spot.
Since the deposition of PW7, a prosecution witness had created a doubt qua the presence of accused [ENTITY], if was lastly in the company of deceased, on the night of 20-5-2011, P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ so accused [ENTITY] cannot be convicted solely on the basis of recoveries of his blood stained clothes at his instance.
11. Now, accused [ENTITY] had got recovered one white colour ( blood stained) gamcha Ex.P2 from the spot and also his blood stained clothes viz pant and shirt Ex.P5 and Ex.P6, he was wearing at the time of incident, from the jungle area of Mandi Pahari. Accused [ENTITY] also got recovered a concrete stone, from about 40 meters away from the place of incident, from near the bushes. The said stone Ex.P1 was having blood stains, used in the commission of offence. All these articles were seized by the investigating officer in different pullandas after sealing it with his seal of AKS. Later these articles were sent to the FSL. [ENTITY] Ex.P2 and Shirt Ex.P6 of accused [ENTITY] were found stained with human blood. The big piece of concrete material Ex.P1 also contained human blood.
Both the recovery witnesses deposed about the recoveries effected at the instance of each of the accused person. It is deposed that though, the investigating officer had requested various public person to join the investigation but P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ none agreed. However, no notice was served upon those who refused to join investigation.
Postmortem Report
12. Now the postmortem report Ex.PW12/A shows the following injuries on the body of the deceased :
(i) fresh lacerated wound of size 6 cm X 0.5 cm present on left parieto-occipital region, placed obliquely, 5 cm postero-lateral to left ear, associated with fracture of underlying bones.
(ii)Multiple reddish abrasions present on face associated with fracture of nasal, maxillary and mandibular bones.
(iii)A dried, hard parchment like ligature mark present around neck, placed horizontally, completely encircling the neck. The mark is 6 cm broad on whole of right side of neck and present just below mandible and goes posteriorly where the breadth of mark is 3 cm, further it goes to left side of neck where it is 4 cm broad and just below mandible and further it continues on right side.
All the injuries were found sufficient in the ordinary course of nature to cause death, per report Ex.PW12/A. P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ Per the subsequent opinion Ex.PW16/B ; the doctor confirmed that injury no. 3 is possible by [ENTITY] Ex.P2. The [ENTITY] Ex.P3 was found to contain blood stains was got recovered at the instance of accused [ENTITY] ; and it correspond to the injury no. 3.
13. Thus, from the perusal of the depositions made by the prosecution witnesses, the following facts have emerged against the accused [ENTITY] :
i. accused [ENTITY] was lastly seen in the company of deceased by PW7 at about 10.30PM. ii. The approximate time of death, per postmortem report Ex. PW-12/A, is 1.10AM.
iii.Accused [ENTITY] got recovered [ENTITY] Ex.P2 from near the spot ;
iv.he also got recovered a concrete stone Ex.P1 from near the spot ;
v. he got recovered his pant and a shirt Ex.P6 having blood stains from jungle ;
vi.per FSL report Ex.PW15/E human blood was found on such [ENTITY]n Ex.P2, shirt Ex.P6 and stone Ex.P1 ;
vii.the subsequent opinion Ex.PW16/C shows that injury P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ no. 3 viz., ligature mark on the body of deceased, could be caused by [ENTITY] Ex.P2 and other injuries could be caused by stone Ex.P1.
viii.The accused person and deceased had a quarrel a month back.
14. The human blood was found having no reaction qua blood grouping, per FSL report Ex.PW15/E, but it is argued that considering the deceased lastly been in the company of accused [ENTITY] ; coupled with (i). the false explanation of accused [ENTITY], and (ii). human blood found on the clothes, so recovered at his instance, complete the chain of circumstances to nail accused [ENTITY].
14. Before analyzing each and every incriminating fact. Let me find out the law on the subject of last seen and its proximity with time of death.
In [ENTITY] v [ENTITY] , 2012 [1] JCC 540, it has been held that :
" T he last seen theory relates to evidence, which is not direct evidence i.e. is circumstantial evidence. The foundation of last-seen theory is based on principles of probability and cause and connection.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.
A Division Bench of this Court, of which one of us; [ENTITY] J. was a member of, had an occasion to discuss various decisions of the Supreme Court on the theory of last-seen. The decision is dated August 10, 2009; deciding a batch of four Criminal Appeals, lead matter being [CASE NUMBER], Arvind @ Chhotu vs. [ENTITY]. It was highlighted in the said decision 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 when the deceased was found dead is of a nature and of a kind that the possibility of the accused being the author of the crime is of the highest degree and there is no possibility of a third party being the author of the crime.
The decision highlighted that the circumstances enwombling the last-seen circumstance are of importance and need to be factored while considering the testimony of a witness who deposes on the subject of last seen. In para 77 of the decision, the importance of the back drop circumstance with reference to the time and place of last seen and the time and place of the death, assuming importance, was highlighted.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ In the instant case, the place where the deceased was found grievously injured happens to be a public street. There is no evidence throwing light at the distance between the house of the deceased and the place where the deceased was found injured. The testimony of [ENTITY] PW-5 would show that the deceased left his house in the company of the appellant at 7.30PM. She states that the two left to see a movie. Unfortunately for the prosecution, notwithstanding [ENTITY], [ENTITY] having told the Investigating Officer the next day of the crime that her uncle i.e., the deceased and the appellant had left the house of her uncle at 7.30 PM to see a movie, no attempt has been made by the Investigating Officer to find out whether the appellant and the deceased were together at a movie hall. Had this evidence surfaced, the gap between the appellant and the deceased being together and parting company would have narrowed. This not being the evidence the Court is left only with the evidence that the deceased and the appellant were last seen together leaving the house of the deceased at 7.30PM.
If the appellants and the deceased left the house of the deceased at 7.30PM and there being no further evidence of the two being together thereafter, the deceased being injured at a public street at around 10.15PM does not rule out the possibility of somebody else being the assailant.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ In the decision reported as 2007 (3) SCALE 740 [ENTITY] of Goa vs. Sanjay Thakran & Anr., the Supreme Court had categorically held that where the place of last -seen and the place where the dead body is found are at a distance or if the place was the same, but there was a considerable time lag between when the accused and the deceased were last seen at the place and when the deceased was found dead, the evidence of last seen in both circumstances would lose its incriminating character if the place was a public place for the reason in both circumstances the possibility of somebody else being the assailant could not be ruled out. We do not propose to deal with the purity of the evidence relating to the two recoveries i.e. the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kalloo Passi vs. [ENTITY], 2009(2) JCC 1206 ; [PRECEDENT]; Suriit Singh vs. [ENTITY] of Punjab, AIR 1994 SC 110; Deva Singh vs. [ENTITY] of Rajasthan. [PRECEDENT], & Prabhoo vs. [ENTITY] of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly insufficient to sustain the charge of murder against the accused.
As regards the motive, we disagree with P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ tire reasoning of the learned Trial Judge that the testimony of PW-5 establishes a motive. She has simply stated that since last two months her uncle, i.e., the deceased and the appellant were not on visiting terms. This would mean that something had happened two months ago. The very fact that she deposed that her uncle left with the deceased to see a movie is proof enough that the relationship was no longer strained. In any case, if somebody has a quarrel with somebody two months back, it would be too weak an evidence to establish motive to murder. Though not so expressly said in so many words, white upholding the acquittal of the accused, it is apparent that what has weighted with the Lordships of the Supreme Court is the fact if two friends go to a beach there is no presumption that both of them would stay together at the beach. There is every possibility of a third party being the assailant Similarly, where two friends are seen walking on a street, there is every possibility of the two parting company, and somebody else being the assailant. In this context the issue of time gap becomes relevant. The issue of the place where the two were last seen alive become relevant.
Even in Raju @ Ranthu @ Raju Kr. V [ENTITY], 2012[1] JCC 547, it has been held that;
" W here there was eight hours gap between the last seen and the death, accused were acquitted " .
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/
15. Now coming to the deposition of PW-7 [ENTITY] when he says that he had seen both accused [ENTITY] and the deceased outside his house, where they stayed for some time and left. However he did not depose about the exact time of their leaving his house. Even he had denied the suggestion that they both had left his house at about 10.30PM.
16. Per postmortem report Ex. PW-12/A, the postmortem started on 21.5.2011 at about 1.10PM and the time since death, was opined as about half a day i.e. about 12 hours, hence the approximate time of death comes to 1.10AM, which could be even more.
17. Though the prosecution failed to prove the exact time as to when accused [ENTITY] and deceased [ENTITY] left the house of PW-7 [ENTITY] but even if we take it as 10.30PM, as suggested by Ld. Addl.PP for [ENTITY], then also there is a time gap of more than two and a half hours from the last seen and the time of death. It can even be more, per denial of time by PW-7 and per approximation, as suggested in the postmortem report Ex. PW-12/A.
18. Further PW-7 is not sure as to how accused [ENTITY] and his friend [ENTITY], since deceased, reached his house. , if by P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ foot or on a scooter. Further he deposed that there are two ways from his house to go to Jonapur, while the one goes from inside his colony and the other goes from the Sapera basti outside. PW-7 also was not aware as to if both, the accused and deceased, had taken different routes to go to Jonapur or they had gone together. He did not even know as to if they left on foot or on any vehicle. Thus PW-7 himself raised a doubt if both accused [ENTITY] and deceased [ENTITY] had left together from his house. Even PW-7 says that he did not see them quarreling / fighting with each other. Though, PW-5 [ENTITY] talks about a quarrel between his brother [ENTITY], since deceased, and the accused persons, about 10-15 days prior to the incident, but PW-5 further deposed that he himself had resolved that dispute.
19. Further the distance between the house of PW-[ENTITY] and the jungle where the dead body was found is also not clear. So, when the house of PW-[ENTITY] was at a far distance from the place of incident and since there were different ways to reach the spot and since it is not clear if accused [ENTITY] and deceased left together or they took the same way ; or they left on a same vehicle or by foot and since there exists a time gap of more than two and a half hours from the time of their last seen together and the time of death; so the mere presence of accused [ENTITY] with [ENTITY], outside the house of PW-7, for P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ 2-3 minutes cannot be said to be an incriminating fact. The possibility of stranger committing crime cannot be ruled out.
20. It is also an admitted fact that the gamcha Ex. P-2 ; concrete stone Ex. P-1 and even the alleged bloodstains clothes of accused [ENTITY] viz. Ex. P-5 and Ex. P-6 were got recovered from a jungle area i.e. a place frequented by public. The question is how accused [ENTITY], after allegedly killing [ENTITY] , since deceased, had left his pant and shirt in the jungle or was he carrying some other clothes with him or did he change his clothes at the spot ; are some questions left un-answered by the prosecution.
Thus, in the absence of a concrete last seen theory; the recovery of gamcha or clothes, allegedly of accused [ENTITY], as accused had denied those clothes to be his clothes, per his statement u/[SECTION] [ACT], there is no cogent evidence which could be a basis to implicate accused [ENTITY] in such a heinous crime. Hence accused [ENTITY] also deserves benefit of doubt.
21. Hence, relying upon the law laid down in [ENTITY] (supra) and [ENTITY]), I see no reason to convict both the accused on the basis of alleged recoveries.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/
22. Thus, in the facts and circumstances, I am of the considered opinion that the prosecution has failed to prove its case against both the accused beyond reasonable doubt and hence both of them deserves to be acquitted of the offence u/[SECTION] [ACT]. Thus acquitted. They be released if not required in any other case.
23. Compliance of [SECTION] [ACT] be made and file be consigned to record room.
Announced in the open court today i.e. 28.04.2012. ( [ENTITY] ) ASJ-02 (South) / Saket Courts New Delhi.
P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/ P.S Fatehpur Beri, New Delhi /home1/stenographer/[ENTITY]/Judgment 2012/April 2012/