* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision : July 04th, 2018 + CRL.A. 902/2013 STATE NCT OF DELHI Appellant Through: Ms. [ENTITY], Additional Public Prosecutor for the State with ACP Dharam Pal and Inspector [ENTITY], Police Station Kanjhawala, Delhi. Mr. [ENTITY], Mr. [ENTITY], Advocates for complainant. versus AMIT SHARMA & ORS. Respondents Through: Mr.[ENTITY], Advocate for respondent No.1. Mr.[ENTITY], Ms. [ENTITY], Mr.[ENTITY], Mr.[ENTITY], Advocate for respondent No. 2. Mr.[ENTITY], Advocate for respondent No. 3 to 5. CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE P.S.TEJI JUDGMENT
[ENTITY], J.
1. The present appeal has been filed by the State under [SECTION] [ACT] against the judgment dated 24.07.2012 passed by learned ASJ-II, (Outer) Rohini Court, Delhi whereby the respondents/ accused persons have been acquitted for the offence punishable under Section [SECTION] [ACT], in a case registered as FIR No.227/2003, P.S. Kanjhawla, Delhi.
2. The factual matrix, as emerging from the record, is that on 25.09.2003 a DD No. 35 A (Ex. PW-25/A) was received in the police station regarding kidnapping of the deceased [ENTITY] for ransom. SI [ENTITY] along with Constable [ENTITY] reached the house of the complainant, namely, [ENTITY] who in his statement stated that his son [ENTITY] aged about 18 years, student of B.A(Pass) 1st year in Satyawati Evening College went missing. On 25.09.2003 he left the house as usual and did not return at the usual time of 7:30 pm. They called on the mobile phone of [ENTITY] bearing no. 9891102594. Initially, phone was not attended, but after some time when his nephew [ENTITY] called from his mobile phone no.011-32332151 on the mobile phone of [ENTITY], someone picked the phone and informed that [ENTITY] was with them. He asked [ENTITY] to arrange a sum of Rs. 20 Lakhs. The complainant raised apprehension that his son had been kidnapped for ransom of Rs. 20 Lakhs. On the basis of the statement of the complainant an FIR (Ex. PW-1/B) was initially registered under [SECTION] [ACT] on 26.09.2003. Mobile phone of the complainant was kept under observation. [ENTITY]'s associates were asked about his whereabout in his college. During investigation it was revealed that [ENTITY] was having a friend [ENTITY] in the college, and on 25.09.2003 he went away along with the accused [ENTITY]. The investigatin officer, however, did not identify any person who may have witnessed/seen [ENTITY] go with the accused [ENTITY]. During interrogation, [ENTITY] stated that he had nothing to do with [ENTITY].
3. On 28.09.2003 an information regarding recovery of a dead body matching with the details of [ENTITY] was received and it was revealed that the same was lying in PG IMS, Rohtak. The IO along with the complainant [ENTITY] (PW-3) and neigbour [ENTITY] (PW-15) went to PG IMS, Rohtak where ASI [ENTITY], PS Gannor, Haryana met them and the dead body was identified as that of [ENTITY] by the complainant (PW-3) vide Ex.PW3/B. Post-mortem on the dead body was got conducted and then it was handed over to his relatives. The complainant [ENTITY] in his statement Ex. PW- 3/B stated that this son [ENTITY] was wearing a gold chain with a Shri [ENTITY] locket, sports shoes, having mobile phone and diary with the NIT I-card, I-card of Satyawati College and a few other papers, which were not found on the dead body. Penal [SECTION] [ACT] were added to the case. Call details of mobile phones of deceased bearing nos.9810872071 (Ex.PW22/A) and 9891102594 (Ex.PW21/A), and of mobile phone no.35228221(Ex PW-24/1) of accused [ENTITY] were collected. During investigation it was revealed that on 25.09.2003 at 10:30 pm a call from no. 27781472 was made on the mobile phone of accused [ENTITY], which was found to be of the STD booth near the house of accused [ENTITY]. It was also revealed that on the night intervening 25/26.09.2003, in the early morning at 04:06 am, 04:13 am, and 06:09 am three outgoing call were made from the mobile phone of accused on phone no. 27781824 installed at the house of the accused [ENTITY].
4. According to the prosecution, on 02.10.2003 accused [ENTITY] was interrogated and he confessed in his disclosure statement (Ex.PW16/C) that on 21.09.2003 he along with his co- accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY] had planned to kidnap [ENTITY] and, in pursuance of the same, on 25.09.2003 he took [ENTITY] on his scooter to the shop of [ENTITY] and [ENTITY] at Bakhtawar Pur, Samey Singh Market. Accused [ENTITY] demanded money from the relatives of deceased. On 26.09.2003 they all killed the deceased and then his dead body was taken in the car and was thrown on the road side near Gannor. Mobile phone and purse of deceased were thrown by [ENTITY] in a pond. Accused [ENTITY] was arrested and he got recovered one gold chain along with Shri [ENTITY] locket of deceased which was lying in an iron box in his room which were seized vide Ex.PW16/E.
5. Accused [ENTITY] was personally searched vide Ex.PW16/G and was arrested vide Ex.PW16/F on 02.10.2003; and, from his pocket a ring of the deceased was seized vide Ex.PW26/I. On the pointing out of accused [ENTITY] (Ex.PW16/L), a Maruti car bearing no. DL 3CT 1804-which was used to ferry the dead body was checked, in which one blood stained sack and one blood stained plywood board were found. Photographer was called on the spot and the spot was got photographed by PW8. Thereafter, the sack was seized vide Ex.PW16/J and a piece of plywood was seized vide Ex.PW16/K. One scooter bearing no. HR 10E 6665-which was allegedly used by accused [ENTITY] to take away the deceased, lying parked in front of house of accused [ENTITY], was seized vide Ex.PW16/M. Accused [ENTITY], [ENTITY] and [ENTITY] were arrested from Vandana Studio vide arrest memos Ex.PW16/R, Ex.PW16/P and Ex.PW16/N respectively. Mobile phone no. 35228221 recovered from accused [ENTITY] was seized vide Ex.PW16/W. Accused persons pointed out the place inside Vandana Studio, where they had committed the murder of deceased. One Titan Watch-which was worn by accused [ENTITY], belonging to deceased was seized vide memo Ex.PW16/X, and a pair of shoes recovered from the accused [ENTITY] from his shop, were seized vide Ex.PW16/Y. One bag was produced by accused [ENTITY], disclosing that with the said bag deceased was smothered. The said blood stained bag was seized vide Ex.PW16/Z and the blood stained wall was seized vide Ex.PW16/ZA and the same were got photographed. All the accused persons pointed out the place of throwing the dead body vide Ex.PW16/A1 to A5. All the exhibits were deposited in the Malkhana on 03.10.2003. On 03.10.2003, on the pointing out of accused [ENTITY] vide Ex.PW16/ZC and [ENTITY] vide Ex.PW16/ZB, purse and mobile phone of deceased were searched in the pond of Tikri Khurd Village and the diver (PW4) recovered the purse containing I-Cards, DTC Bus Passes, Driving License and Cash Receipt of NIIT belonging to deceased which were seized vide Ex.PW4/A. However, the mobile phone could not be recovered. All the exhibits were deposited in the Malkhana on 03.10.2003.
6. After completion of investigation final report under [SECTION] [ACT] was filed and on 29.07.2004, charge under [SECTION] [ACT] and under [SECTION]-B [ACT] were framed against the respondents/ accused herein to which they pleaded not guilty and claimed trial.
7. In order to prove the accused guilty, the prosecution examined 26 witnesses, star witnesses being PW-3, PW-9, PW-11. After completion of prosecution evidence, statements of the accused persons under [SECTION] [ACT] were recorded in which they claimed innocence and denied the entire case of the prosecution.
8. On appreciation of evidence and material brought on record, the trial court acquitted the respondents for the offences charged against them. Feeling aggrieved by the judgment of acquittal, the State preferred leave to appeal against the impugned judgment, which was allowed by this Court vide order dated 18.07.2013.
9. Argument advanced by the learned APP for the State is that the present case is based upon circumstantial evidence and the prosecution has proved the entire chain of circumstances to bring home the guilt of the accused persons. Accused [ENTITY] got recovered gold chain with Shri [ENTITY] locket and also the wallet belonging to the deceased. Both these articles were recovered on the basis of disclosure statement made by the accused [ENTITY]. The wallet was recovered by the diver [ENTITY] (PW4). Accused [ENTITY] also got recovered blood stained bag of grams with which the deceased was smothered. Regarding recovery made at the behest of accused [ENTITY], it is submitted that he disclosed about the commission of offence and got recovered blood stained gunny bag and blood stained plywood from the car used in the crime. It is further submitted that accused [ENTITY] got recovered sports shoes of the deceased. Accused [ENTITY] got recovered wrist watch of the deceased which the accused was wearing at the time of his apprehension. Learned counsel for the complainant has argued that the articles belonging to the deceased were recovered from the accused persons and as per the call details, they all were in touch with each other and with the deceased, which clearly points towards their guilt in the commission of murder of the deceased. It is further submitted that recovery of articles of the deceased from the accused persons raises a presumption under [SECTION] of the [ACT] against the accused persons. In support of the above contentions, reliance has been placed on Ranjeet Kumar [ENTITY] @ Ranjeet Kumar Das versus State of Bihar, 2015 (3) JCC 2065; [PRECEDENT] [PRECEDENT] versus State Through Inspector of Police, Madras, AIR 2013 SC 1000;State Government of NCT of Delhi versus Sunil & Anr., 88 (2000) Delhi Law Times 630 (SC);State [PRECEDENT], decided by Supreme Court of India on 01.05.2000); [PRECEDENT] (Govt. of NCT of Delhi) (Crl. Appeal No. 655/2013 & Death Reference 3/2013, decided by High Court of Delhi on 27.01.2016); [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT].
10. Learned counsel for the accused argued that in the present case, the prosecution has not been able to prove all the circumstances on record convincingly. There are several missing links in the story put forth by the prosecution. Consequently, the trial court has rightly acquitted the accused persons. It is submitted that there are several material contradictions in the documents prepared and the testimonies of the witnesses, which go to the root of the matter. It is submitted that the description of clothes of the deceased given in the DD entry is different from those found on the dead body of the deceased. There is no mention of wrist watch in the recovery memo of the dead body, but the same was allegedly worn by the deceased at the time of his death. Witness [ENTITY] (PW-4) has not referred to preparation of pointing out memo. The call details of the mobile phones of the deceased, [ENTITY] (nephew of PW3) and accused [ENTITY] have been produced on record, but the same do not, in any way, connect any of the accused with the alleged offence. The call details do not reflect that any of the accused made any call from his mobile phone or landline phone to the phone of the deceased or his family members from the time the deceased went missing till the recovery of the dead body. It is further submitted that the call details produced on record were not supported by mandatory certificate as per [SECTION] of the [ACT] and thus, the same cannot be read in evidence. Public witness [ENTITY] (PW-17), the owner of the two shops in Samai Singh Market, Bakhtawar Pur has turned hostile and did not support the case of the prosecution. There is no evidence on record to establish that the shops were taken on rent by accused [ENTITY] and [ENTITY], and from those shops they were running Vandana Studio, or a General store. Even the STD booth owner [ENTITY] (PW20) has not supported the case of the prosecution. It is further submitted that though the inquest proceedings were done on 27.09.2003, but name and address of the deceased were later on added on 29.09.2003. It is further submitted that the prosecution has alleged that the accused persons got recovered gunny/plastic bag, but the recovery memo mentions that what was recovered was a bag (bori). It is further submitted that no recovery, as alleged, has ever been made from the accused persons or at their instance and the same are planted. No public witness was joined in the recovery proceedings. It is further submitted that there is contradiction regarding the watch worn by the deceased inasmuch, as, PW13-[ENTITY] stated that he had seen the wrist watch on the dead body, but the same has been alleged to have been recovered from one of the accused persons. It is argued that the post- mortem report of the deceased Ex.PW13/ A does not mention any specific cause of death. The injuries mentioned in the post-mortem report Ex.PW23/A are the following:
"(1) There was a defused contusion of 5x2 cm on right parito temparoal region. The underline skull bones were showing infilatration of blood in it. The brain matter was pinkish grey in colour.
(2) There was defused contusion of thigh 3x2 cm on the right occipital region. The underline skull bone was showing infilatration of blood in it. The brain matter was pinkish grey in colour.
(3) There was a contusion of thigh 5x4 cm on the left sternal border at the level of 4/5 ribs.
(4) There was a contusion of thigh 7x4 cm on the right side of chest just below the right nipple."
The cause of death was opined as :
"The cause of death are the injuries described which are ante-mortam and sufficient to caused death in ordinary course of nature. The time between death and post-mortem examination is between 3-7 days."
However, after recording the disclosure statement of the accused, a second opinion was sought from the doctor vide Ex.PW26/F and dated 12.12.2003, and a further opinion was obtained vide Ex. PW23/B- which mentions the cause of death as :
"the injuries described which can be caused by chest compression and hitting head on some hard surface. The combined factors, chest compression and head injuries can cause death."
Thus, the subsequent opinion has been obtained to match the disclosure statement and there is no independent opinion that the death had been caused in the manner described in the disclosure statement. In support of the above contentions, learned counsel for accused persons/respondents relied upon [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; Order dated 08.11.2011, passed by Delhi High Court in [CASE NUMBER], titled as [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; Order dated 20.04.2011, passed by Delhi High Court in [CASE NUMBER], titled as [PRECEDENT]; [PRECEDENT].
11. In rebuttal, Ms.[ENTITY], learned APP for the State has argued that the missing report of the deceased after the ransom call was made vide DD No.35A (Ex.PW25/A) which was got lodged on 25.09.2003. The statement of PW3-[ENTITY] Ex.PW3/A, the father of the deceased i.e. the Rukka was recorded on the same day vide Ex.PW25/B (also exhibited as EX PW-3/ A). The FIR was initially registered under [SECTION] vide Ex.PW1/B on 26.09.2003 at 12:30AM. On the next day i.e. on 27.09.2003, the dead body of the deceased was seen by PW13-[ENTITY], who then informed of the same to PW14-ASI [ENTITY]. Statement of [ENTITY] is Ex.PW14/B. Statement of PW3 i.e. father of the deceased was recorded on 29.09.2003 vide Ex.PW3/B in which he gave the description of the missing items of the deceased. The accused [ENTITY] was arrested on 2.10.2003 at about 2.10 p.m. vide Ex.PW16/A. Accused [ENTITY] was arrested on the same date at 4.00 p.m. vide Ex.PW16/F whereas accused [ENTITY] was arrested at 7.20 p.m. vide Ex.PW16/R. Accused [ENTITY] was arrested at 7.40 p.m. vide Ex.PW16/N and accused [ENTITY] was arrested at 8.00 p.m. vide Ex.PW16/P on the same day.
12. Though it is submitted that there is no last seen evidence on record, but the recoveries affected from the accused persons of the belongings of the deceased clearly make out a case against them. The recovery of purse had been made by the diver [ENTITY] (PW4) from the pond upon the pointing out of the location by the accused [ENTITY] and he has duly supported the case of the prosecution and even the presence of accused [ENTITY] and [ENTITY] at the time of said recovery has not been disputed. The gold chain of the deceased was got recovered by accused [ENTITY] from his residence vide Ex.PW16/E, whereas ring of the deceased was recovered from the wearing pant of the accused [ENTITY] vide Ex.PW16/F. In the statement Ex.PW3/B, there is mention of [ENTITY] locket in the said gold chain. In the TIP proceedings, the articles recovered from the accused belonging to the deceased were correctly identified by PW3. It is further submitted that the pointing out memo Ex.PW26/B2 of the place of dumping the dead body matches with the statement of PW14 -ASI [ENTITY] and the statement of PW13- [ENTITY] regarding the place from where the dead body was recovered. It is further submitted that there is enough evidence on record to convict the accused persons and the trial court has committed an error in acquitting them.
13. We have heard the submissions made by the learned APP for the State assisted by learned counsel for the complainant and the learned counsel for the respondents. We have also gone through the evidence led by the parties.
14. PW3-[ENTITY] is the complainant and father of the deceased. He deposed that on 25.09.2003, his son did not return from college and he could not be contacted on his mobile phone. PW3 called his nephew [ENTITY] (PW9), to call the mobile phone of the deceased. At about 10 p.m., [ENTITY] made a call on the mobile phone of the deceased and the receiver of the call informed that they had kidnapped the deceased and asked them to arrange a sum of Rs.20 lakhs. On the next day, the mobile phone of the deceased was found to be not working initially. PW3 further deposed that on 26.09.2003 when his brother [ENTITY] (PW-11) made a call on the mobile phone of the deceased, the person on the other side asked whether the money had been arranged or not, to which [ENTITY] informed that the money had been arranged and asked for the place of its delivery. On the intervening night of 28/29.09.2003, he received a message from the police and on receipt of same, he along with his neighbor [ENTITY] (PW-15) went to PS Kanjhawala. Thereafter, PW3 along with [ENTITY] was taken to Rohtak Medical Hospital and in the mortuary they met ASI [ENTITY] (PW-14). A dead body was shown to him which he identified as of his son [ENTITY] vide Ex.PW3/B. He further deposed that his son was wearing shoes, having a purse, having a diary with I-card of Satyawati College, I-card of NIIT and some documents, and a gold chain with locket of Shri [ENTITY]. The said articles were not found on the dead body.
15. It was alleged against the accused persons that accused [ENTITY] was lastly seen in the company of the deceased. PW25- SI [ENTITY] was the IO of the case who had deposed that on enquiries made from the college of the deceased, it was revealed from the students of his class that deceased [ENTITY] was lastly seen with accused [ENTITY] and that deceased was also canvassing for accused [ENTITY] who was contesting students election.
16. Apart from the testimony of PW25, there is no evidence on record to establish that the deceased was lastly seen with accused [ENTITY]. The IO (PW25) did not name any of the students, or the source from which he came to know about the deceased being lastly in the company of the accused [ENTITY] on the day he had gone missing. The IO did not care to record the statement of any of such witnesses under [SECTION] [ACT] to make out a case that it was the accused [ENTITY] who was lastly seen with the deceased. The statement of the IO (PW25) is a hearsay evidence and is not an admissible evidence.
17. We may observe that the failure of the I.O.-S.I. [ENTITY] (PW25) in not identifying the individual who had lastly seen the deceased in the company of accused [ENTITY], and not recording his statement point to glaring incompetence and shoddy investigation, which should be looked into by the concerned authorities administratively. We are of the considered opinion that the prosecution has failed to establish on record the circumstance of deceased being lastly seen in the company of any of the accused persons.
18. Next circumstance brought on record by the prosecution is that the call details produced on record prove that the accused persons knew each other and the deceased, and that there were conversations between them on the night when the deceased went missing. It is alleged that there were conversations between accused [ENTITY] and [ENTITY] on the early hours of 26.09.2003. It was also alleged that a call was made on the fateful night of 25.09.2003 at 10.04 p.m. from the mobile phone of [ENTITY] (PW9) to the mobile phone of the deceased, on which ransom was demanded. On the next day at about 11.49 a.m., conversation took place between the accused persons and [ENTITY]-uncle of the deceased, when [ENTITY] (PW11) had called the mobile number of the deceased with regard to arrangement of ransom money. It was also alleged that since the deceased was kidnapped by the accused persons, mobile phone of the deceased also remained with them on which the conversations were made with PW9 [ENTITY] and [ENTITY] (PW-11).
19. The call details of the mobile phone of the deceased bearing nos.9891102594 and 9810872071 were exhibited as Ex.PW21/A and Ex.PW22/A respectively, without any objection. However, when PW-24 sought to exhibit the CDR of phone no.35228221 of accused [ENTITY] as Ex.PW24/1, and of [ENTITY] bearing no.32332151 (exhibited as Ex.PW24/12) he was cross- examined on the aspect of his not producing the certificate in terms of [SECTION] of the [ACT]. In view of the judgment of the Supreme Court in [PRECEDENT], the objection now raised for the first time to the mode of proof of the CDR Ex.PW21/A and Ex.PW22/A cannot be permitted to be raised. However, the CDR of accused [ENTITY] Ex.PW24/1 and that of [ENTITY] Ex.PW24/12 are not admissible in evidence as they were not proved since the certificates under [SECTION] of the [ACT] were not produced. There is force in the contention of the learned counsel for the accused that the said call details proved on record cannot be read in evidence, as the certificate under [SECTION] of the [ACT] has been appended with them.
20. In any event, in our considered view, the above call details in no way connect the accused persons with the commission of the crime in the present case. As per the call details, though it is apparent that there were conversations between the accused [ENTITY] and [ENTITY] with the deceased before the day of his going missing, but that does not establish anything-apart from the fact that the deceased and accused [ENTITY] were students of the same class in the same college. They were known to each other. There is no dispute with regard to proximity of the accused with the deceased, but the call details in no way establish that-in the kidnapping of the deceased, any of the accused were involved. There is nothing to show that the deceased and the accused were together after the kidnapping. Once again we find that the investigation was sloppy, as no endeavor appears to have been made to find out the location of the mobile phones of the deceased and all the accused. Had the location charts been obtained, it may have been possible to establish that they were together- and that would have been an incriminating circumstance. The I.O. of the case has botched up the investigation on this aspect as well, and it is too late in the day to take any remedial steps at this stage.
21. So far as the calls made at early hours of 26.09.2003 between the co-accused are concerned, the same are between accused [ENTITY] and [ENTITY], and the same cannot be said to be doubtful, or such as to raise any suspicion against them since there is no evidence of the deceased being with any of the accused after he went missing, or at the time when the said calls were made. As per the call details of the phones of the deceased; his cousin [ENTITY], and, accused [ENTITY], there is no call from any of the accused's phone number to the phone number of the deceased, or to the phone number of any of the relative of the deceased, during the time since when the deceased went missing, and till the discovery of his dead body.
22. So far as the recovery affected from the accused persons is concerned, it is alleged against the accused [ENTITY] that from his possession or at his instance, one gold chain with Shri [ENTITY] locket of the deceased, purse of the deceased, mobile phone (number:
35376199) and blood stained bag and grams were recovered. From the possession of accused [ENTITY], one gold ring of the deceased, blood stained jute bag from car, blood stained plywood from the car, scooter and Maruti car were recovered. From the possession of accused [ENTITY], a pair of shoes of the deceased was recovered. From the possession of accused [ENTITY], one Titan watch of the deceased was recovered and from the accused [ENTITY], one mobile phone was recovered. It is argued by the learned APP for the State that the recovery of articles of the deceased from the accused persons or at their instance makes out a case against them that they are responsible for commission of murder of the deceased. The said contention of the learned APP has been contested by the learned counsel for the accused persons that no such recovery had been affected from the accused persons or at their instance and the same have been planted upon them.
23. To deal with the rival contentions of the parties with regard to the recoveries effected, we have gone through the evidence available on record. It was alleged against the accused [ENTITY] and [ENTITY] that after their apprehension they led the police party to Shivam General Store and Vandana Store where their co-accused persons were arrested and accused [ENTITY] got recovered one blood stained bag having grams. [ENTITY] (PW16) had deposed that accused [ENTITY] got recovered blood stained bag having kabuli chana from General Store, Samai Singh Market which was seized vide memo Ex.PW16/Z after transferring the grams in some other bag. As per the case of the prosecution, Vandana Studio and Shivam General Store were belonging to accused [ENTITY] and [ENTITY]. SI [ENTITY] (PW25) had deposed on the similar lines of PW16 regarding recovery of a blood stained bag containing grams from Shivam General Store which was seized vide memo Ex.PW16/Z after converting the grams from the said bag to another bag. The IO of the case Insp. [ENTITY] (PW26) had deposed that accused [ENTITY], [ENTITY] and [ENTITY] were arrested at the instance of accused [ENTITY] and [ENTITY] from Vandana Studio. Accused [ENTITY] produced one blood stained bag containing grams which was seized vide memo Ex.PW16/Z. He further deposed that he noticed some blood stains on the wall which were scratched and seized vide memo Ex.PW16/ZA. He recorded the statement of [ENTITY], owner of Shivam General Store and Vandana Studio who stated that the said shops were given on rent to accused [ENTITY] and [ENTITY]. In his cross-examination, he had admitted that there was no proof with respect to the business carried out in the said shops belonging to the accused persons.
24. PW17-[ENTITY] had not supported the case of the prosecution. In his testimony, PW17 had deposed that he was owner of the two shops in Samai Singh Market. He had stated to have given the said shops on rent to one [ENTITY] about 8-10 years ago which were later on got vacated by him. During cross-examination by the learned APP for the State, PW17 had denied having made any statement to the police to the effect that the two shops were given by him on rent to accused [ENTITY] and [ENTITY]. He denied having acquaintance with accused [ENTITY] and [ENTITY]. Apart from the testimony of police witnesses (PW16, PW25 and PW26), there is no evidence or material on record to show that accused [ENTITY] and [ENTITY] were having the possession of the shops in question from where the blood stained bag was allegedly got recovered by the accused [ENTITY]. Even the owner of the shop [ENTITY] (PW17) had not supported the case of the prosecution that he had given the said shops on rent to both these accused.
25. There are material contradictions with regard to the recovered bag Ex.P21. As per the testimony of PW25, a gunny bag was recovered, but during his examination in the Court, he was shown a plastic bag which he identified to be the same bag which was got recovered by accused [ENTITY]. PW16 who was a witness to the recovery of said bag at the instance of accused [ENTITY] was not shown the bag during his testimony before the Court. The IO (PW26) had stated that a bag was got recovered by accused [ENTITY], but he identified it to be a plastic bag during his testimony. All these witnesses have stated that the said bag was having blood stains, but the FSL report Ex.PW26/L negates this statement, which states that no human blood was detected on the plastic bag. Thus, there are material contradictions with regard to the bag, which go to the root of the matter.
26. It was alleged against accused [ENTITY] that from his possession one gold ring belonging to the deceased was recovered and at his instance one blood stained jute bag and one blood stained plywood were recovered from the Maruti Car bearing No. DL 3CT 1804. As per the testimony of PW25-SI [ENTITY] and PW26-Insp. [ENTITY], when accused [ENTITY] was arrested, his disclosure statement was recorded and then the ring was seized which was lying in his jeans pocket. The story put forth by the prosecution is doubtful for the reasons that, it is not expected of an accused that he would keep the stolen articles with him and on his person. As per the case of the prosecution, accused [ENTITY] was personally searched vide memo Ex.PW16/G. This memo Ex.PW16/G shows that nothing except Rs.115/- was recovered from the personal search of the accused [ENTITY]. When accused was searched and nothing except the money was recovered, how could it be inferred that the ring-which was kept by him in his pant pocket, was found. According to the prosecution, it was only on his disclosure that the ring was found in his pant pocket which he was wearing, and which was seized vide Ex.PW16/F. Thus, there is doubt about the recovery of ring from the possession of the accused [ENTITY].
27. It was alleged against the accused persons that the dead body of [ENTITY] was disposed of by keeping it in a jute bag which was kept in the dickey of the car. It was also alleged that another jute bag was recovered from the car was got recovered by accused [ENTITY], which was seized vide memo Ex.PW16/J. The recovery of the said jute bag had been proved by PW16-[ENTITY], who had deposed that the accused [ENTITY] took the police party to a nearby place of his house and pointed out towards a Maruti Car. From the dickey of the car, one blood stained gunny bag was found and it was seized. PW25-SI [ENTITY] was also associated with the recovery of car and gunny bag. It has also been stated by PW16, PW25 and PW26- Investigating Officer that from the said car, apart from a blood stained bag, one blood stained plywood was also recovered. All these witnesses have not stated anything about the association of any public witness in the recovery of car, bag and plywood. There are material contradictions regarding the recovery of these articles. PW16 had not stated about the arranging of keys of the car. PW25 and PW26 have stated that the said keys were brought from the house of accused [ENTITY]. The sister of the accused [ENTITY], namely, [ENTITY] (PW19) was examined by the prosecution, but she did not support the case of the prosecution. She had deposed that she was the registered owner of the said car and that the accused [ENTITY] never took that car from her or from her in-laws. It is also apparent from the record that the place from where the said car was recovered was a public place but the IO had not made any effort to join any independent public witness in the recovery of either the car, or the bag and plywood from the same. Thus, a doubt is raised about the seizure of car, bag and plywood as alleged.
28. It is further the case of the prosecution that the shoes of the deceased were got recovered by the accused [ENTITY] who produced the said shoes from Shivam General Store. PW3, father of the deceased in his cross-examination had admitted that he had not given any specification of the shoes in his statement made to the police. It has not come on record that the said shoes were of the size of the deceased. The size of the foot of the accused [ENTITY] has also not been disclosed and it is not the case of the prosecution that the recovered shoe was not of the size of the accused [ENTITY]. There is no basis in believing the story of the prosecution, for the reason that the prosecution had failed to establish that Shivam General Store was in possession of the accused [ENTITY], or; that he was inducted in the said shop as a tenant. There is no evidence on record to connect the accused [ENTITY] with Shivam General Store from where the shoes of the deceased were allegedly recovered. Secondly, no justifiable explanation has been given by the prosecution as to why accused would keep the said shoes in his possession after many days of the death of the deceased which may not be any of his use. Thus, the recovery of shoes of the deceased at the pointing out of the accused [ENTITY] is full of doubts.
29. It was also the case of the prosecution that one Titan wrist watch Ex.P2 of the deceased was recovered from the accused [ENTITY]. Learned counsel for the accused has argued that no such recovery was affected from the accused [ENTITY] and the same has been planted upon him.
30. It is important to mention that the dead body of the deceased was firstly discovered by PW13-[ENTITY]. He had deposed that on 27.09.2003, at about 7-8 p.m., he was coming from Gannaur to Delhi side on foot. When he reached near Picrik, he saw one dead body of a boy lying in a ditch. He informed the police about the dead body. During cross-examination, PW13 categorically stated that the body was having a wrist watch on his wrist. Even PW3-father of the deceased had not stated anything with regard to Titan Watch being worn by the deceased in his statements Ex.PW3/A and Ex.PW3/B recorded by the police under [SECTION] [ACT] No description of the watch was given by the father of the deceased and in view of the statement of PW13-[ENTITY], that he found a wrist watch on the dead body, the plantation of the wrist watch in the present case cannot be ruled out when it is admitted case of the prosecution that no wrist watch was found on the dead body of the deceased when it was recovered. It is also evident from the record that the personal search of accused [ENTITY] was conducted vide memo Ex.PW16/S after his arrest in which there is mention of recovery of a sum of Rs.133/- from his personal search. There is no mention of wearing of any wrist watch by the accused [ENTITY] at the time of his arrest or taking his personal search. When at the time of his arrest, as per the case of the prosecution, the accused [ENTITY] was wearing the wrist watch belonging to the deceased, what prevented the IO from recording the same in the personal search memo, has not been explained.
31. So, keeping in view the statement of PW13-[ENTITY] that he found a wrist watch on the dead body, and the fact that the IO had failed to record the recovery of wrist watch in the personal search memo of the accused [ENTITY], a doubt is raised about the manner and recovery of alleged wrist watch from the person of the accused.
32. Apart from the above articles of the deceased, it is also the case of the prosecution that one black purse of the deceased was got recovered by accused [ENTITY] from a pond. As per the prosecution case, on 03.10.2003 accused [ENTITY] took the police party to Tikri Khurd, Delhi and pointed towards a pond in which the purse of the deceased was thrown. Accused [ENTITY] threw a stone in the middle of the pond to point out the place of throwing the purse. One diver [ENTITY] (PW4) retrieved the purse which was seized vide memo Ex.PW4/A. PW4 had stated that he-on the pointing out of accused [ENTITY], got recovered the purse containing some documents which was seized vide memo Ex.PW4/A.
33. The father of the deceased i.e. PW3 had not stated anything in his statements recorded under [SECTION] [ACT] being Ex.PW3/A and Ex.PW3/B regarding the description of the purse of the deceased. In his statement Ex.PW3/B, though PW3 stated about the missing articles of his deceased son, but he had not stated that his son was having a purse. So, in view of this position of the matter, we are of the view that the manner of recovery and seizure of purse of the deceased as alleged is doubtful and it is not safe to rely upon the same.
34. In view of the totality of discussion made above, we are of the view that though the prosecution has been able to raise doubts about the involvement of the accused persons, it has failed to prove beyond reasonable doubt the guilt of the accused for the offences charged against them. The respondents are entitled to the benefit of doubt. Accordingly, the judgment passed by the Court below is upheld.
35. Accordingly, the present appeal is dismissed.
[ENTITY], J [ENTITY], J JULY 04, 2018 dd