State V Vishnu Bahadur

IN
THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
SC No. 221/2020
CNR No. DLND010026152017
State Versus Vishnu Bahadur

S/o. Sh. Kishan Bahadur
R/o. C172, Kusumpur Pahari,
Vasant Vihar, New Delhi.
Also at
C232, CN, Kusumpur Pahari,
New Delhi.
FIR No.607/2016
PS : Vasant Kunj (North)
Under Section : 302/201/174A IPC
Date of Institution : 20.10.2020
Date of addressing arguments : 07.11.2022
Date of Judgment : 15.11.2022
Appearances:
Mr. Ravinder Khandelwal and Mr. Irfan Ahmad, Ld. Addl. P.Ps. for the
State.
Mr. Shafiullah, Ld. Counsel for the accused.
JUDGMENT:
FACTS:
1. Accused Vishnu Bahadur S/o. Kishan Bahadur, aged about 40
years, has been arraigned for trial by the prosecution on the allegation that:
Firstly, at some unknown time on 05th or 06th November, 2016, he committed
murder of Vimal Kami, S/o. Late Bhim Bahadur, aged about 3040 years, by
causing injuries on his body with a broken whisky glass bottle at his
SC No.221/2020 State Vs. Vishnu Bahadur Page 1 of 29
House/Jhuggi No.C172, ground floor, Kusumpur Pahadi, Vasant Kunj, New
Delhi as shown in the site plan Ex.PW3/A (scaled site plan Ex.PW10/A)
within the jurisdiction of Police Station Vasant Kunj (North) and thereby
committed an offence punishable under Section 302 of the IPC; and
secondly, the accused has been also arraigned for committing an offence
punishable under Section 201 of the IPC, as despite knowing or having
reasons to believe that offence of murder has been committed, he cleaned the
blood and gathered the pieces of broken glass bottle and threw away or
destroyed his clothes which he was wearing at the time of incident and also
locked the dead body inside his aforementioned tenanted accommodation;
and thirdly, thereafter absconded away with his wife with the intention of
screening himself or his wife from legal punishment, and accordingly,
charged for committing an offence punishable under Section 174A of the
IPC for his having been declared a proclaimed Offender under Section 82 of
the Cr.P.C. Needless to state that the accused pleaded “not guilty and
claimed trial”.
FACTUAL MATRIX:
2. The case of the prosecution is that an information was recorded
on 07.11.2016, at 14.12 hours, vide DD No.37A at Police Station Vasant
Kunj (North), South District, Ex.A2 (also Ex.PW4/K) to the effect that
some foul smell was emanating from a room/Jhuggi No.C172, ground floor,
Kusumpur Pahadi, Vasant Kunj, New Delhi, which was locked from outside,
which information was relayed by Ct. Satish No.2884, PCR from his mobile
No.9953639303. The investigation was marked to SI Pradeep Rawat (since
promoted as Inspector) and examined as PW4, who reached the place of
occurrence and found that the lock on the door of House/Jhuggi No.C172,
ground floor, Kusumpur Pahadi, Vasant Kunj, New Delhi had been broke
opened since foul smell was emanating from the room; and he met Hans Raj
(PW3), aged about 53 years, who identified himself as the owner/landlord of
House/Jhuggi besides finding police officials viz. Ct. Surender, HC Hukum
Singh and Ct. Kuldeep from Police Station Vasant Kunj already present
there.
3. It is the prosecution case that Hans Raj (PW3) revealed that he
received a call from his tenant Lala Ram (PW2) that foul smell was
emanating from the locked room/jhuggi and that he had broken the lock in
the presence of some people residing in the vicinity and the PCR officials,
and on visiting inside the room/Jhuggi, they found one dead body of an
“unknown male”; which was later on identified as that of Vimal Kami S/o.
Bhim Bahadur R/o. Single Tea Estate, Dhora, PS Kurseng, Darjeeling, West
Bengal on the basis of election Identity Card found in a black colored purse
on search of the dead body.
4. It is the prosecution case that the dead body was lying on the
floor with blood from the mouth and nose with lot of blood on his body and
on the floor; and that the crime team was called to the spot which inspected
the scene of crime inter alia taking few photographs; and that the dead body
was in a highly decomposed state infected with worms due to mutilation but
there was no visible injury seen as such; and that on the search of the dead
body, one black purse was taken out which contained an Election Card which
was in the name of Vimal Kami S/o. Bhim Bahadur R/o. Arabinda Colony,
Madargachhi, Karandighi, Uttar Dinajpur besides two passport size
photographs, one pocket diary and Identity Card in the name of Vimal Kami
S/o. Bhim Bahadur R/o. Village Draul, PO Karyari, Tehsil Sunni, District
Shimla, Uttar Pradesh, which were seized vide memo Ex.PW4/C; and a
blood stained brown pant that was being worn by the deceased was taken out
and seized vide memo Ex.PW3/B and since no one was able to identify the
deceased, his body was packed and sent to AIIMS hospital along with ASI
Hukum Singh for preserving the body vide proforma application Ex.A4 for
conducting the post mortem.
5. It is the case of the prosecution that investigation was done at
the spot and blood stains lying on the floor were lifted from the spot with the
help of gauze besides one quarter bottle (nip) seized besides the lock at the
door of the jhuggi which was earlier broken by PW3 vide memos Ex.PW
4/A, Ex.PW4/B and Ex.PW4/E; and that since there were no visible marks
on the dead body due to highly decomposed state, DD No.73B was recorded
on 07.11.2016, at 10.30 PM, Ex.A5 and DD No.37A was kept pending so as
to ascertain the cause of death that could only be found from the post
mortem; and that in the meanwhile, the dead body was identified on
11.11.2016 by Nirmal Khati and Amar Khati, whose statements were
recorded as Ex.PW4/F and Ex.PW4/G in the hospital; and the inquest
papers were prepared and request for post mortem was made vide memo
Ex.A4 along with death report Ex.PW4/H; and that the post mortem on the
dead body was conducted on 11.11.2016. However, the viscera was
preserved in order to rule out concomitant intoxication and there were
described as many as three injuries on the dead body about which I shall
delve on later in this judgment.
6. It is further the case of the prosecution that after post mortem,
two sealed parcels containing viscera and clothes of the deceased were
handed over to it vide memo Ex.PW14/J and sent for FSL examination. The
prosecution case is that post mortem report was collected from the hospital on
28.12.2016 and the cause of death was opined to be, “due to Cranio–
Cerebral injury caused due to blunt force trauma” and thereafter rukka
Ex.PW4/K was prepared on the basis of DD No.37A, which is Ex.A2 (also
Ex.PW4/K) and the present FIR No.607/2016 under Section 302 of the IPC
was registered on 28.12.2016, at 11.10 hours, which is Ex.A1, on
rukka/tehrir/complaint received vide DD No.15A at 11.05AM.
7. It is the case of the prosecution that the site plan of the place of
occurrence Ex.PW3/A was prepared and later on, even scaled site plan was
prepared which is Ex.PW10/A on 27th November 2019 and during the course
of investigation, the statement of the witnesses were recorded under Section
161 of the Cr.P.C. and the outcome of the investigation was that accused
Vishnu Bahadur S/o Kishan Bahadur was a tenant in the jhuggi and he had
fled away with his family after locking the tenanted room. It is the
prosecution case that suspect was not traceable after the incident but there
were hardly any clue about the accused and thereafter investigation was
handed over to Inspector Sanjeev Mandal (PW10) and the case exhibits were
sent for forensic examination to FSL, Rohini, New Delhi; and that there were
reasonable grounds to suspect from the statements of witnesses viz. Hans
Raj (PW3) Smt. Meera (PW1) and Ram Prashad (PW2) besides
Dashrath(PW5) and Lala Ram that they had seen the accused going into the
woods after locking the House/Jhuggi No.C172, ground floor, Kusumpur
Pahadi, Vasant Kunj, New Delhi on 05.11.2016 and after two days, the dead
body was found in the same room/jhuggi.
CHARGESHEET:
8. After completion of the investigation, the present chargesheet
was filed on 27.01.2020 and after taking cognizance, the matter proceeded as
per Section 299 of the Cr.P.C. since the accused had been declared
proclaimed offender/ proclaimed absconder vide order dated 01.11.2019 by
the Ld. Committal Court. Further, narration of the prosecution case in the
supplementary chargesheet that was filed on 05.09.2020 is that accused
Vishnu Bahadur S/o. Kishan Bahadur was not traceable, and therefore,
NBWs were ordered to be issued by the concerned Court, and thereafter
proceedings were initiated in terms of Section 82 of the Cr.P.C. and for that
reason, the accused has been arraigned under Section 174A of the IPC as
well and the supplementary charge sheet was committed to the Sessions
Court.
9. It is the prosecution case that the accused was arrested vide DD
No.32A on 11.06.2020 at Police Station Vasant Kunj on information from
the Office of Special Cell, SWR, Janakpuri, New Delhi. The accused was
then formally arrested in the instant matter on 22.06.2020. It would bear
repetition that the accused had been arraigned for trial on the charge of
committing the murder and for the concealment and destruction of evidence,
and lastly for having become a proclaimed offender vide Order on Charge
dated 23.03.2021 to which he pleaded not guilty and claimed trial.
Incidentally, the wife of the accused Vishnu Bahadur too was declared
proclaimed offender vide order dated 12.05.2021 passed by the ld Committal
Court.
PROSECUTION EVIDENCE:
10. Suffice to state that Mr. Shafiullah, Ld. Defence Counsel
representing the accused made a statement on 05.05.2022 thereby admitting
the following documents :
i) Copy of the FIR, which is marked Ex.A1;
ii) DD No.37A dated 07.11.2016, which is marked Ex.A2;
iii) SOC Report, which is marked Ex.A3;
iv) Inquest papers, which are marked Ex.A4 (Colly);
v) DD No.73B dated 07.11.2016, which is marked Ex.A5;
vi) Road certificate No.58/21/17 dated 22.03.2017, which is marked
Ex.A6;
vii) Road certificate No.56/21/19 dated 18.03.2019, with
acknowledgement of case property by FSL, Rohini, which is
marked Ex.A7 (Colly);
viii) RFSL Report dated 27.07.2017, which is marked Ex.A8;
ix) FSL Report dated 13.05.2019, which is marked Ex.A9;
x) Fourteen (14) photographs with negatives, which are marked
Ex.A10 (Colly);
xi) Photocopies of entries of Register No.19, which are marked
Ex.A11 (Colly);
xii) Letter to the Department of Forensic Medicines and Toxicology,
AIIMS, New Delhi regarding opinion of cause of death, which is
marked Ex.A12;
xiii) Order of Proclaimed Offender (PO) of accused Dolli dated
12.05.2021, which is marked Ex.A13;
xiv) Order of PO of accused Vishnu Bahadur dated 01.11.2019,
which is marked Ex.A14; and
xv) Copy of Kalandara U/s.41.1(c) Cr.P.C., which is marked Ex.A
15 (Colly).
11. The prosecution giving up formal recording of evidence in
respect of aforesaid documents, examined in total ten (10) witnesses to prove
its case against the accused. The main witnesses of the prosecution were:
Smt. Meera (PW1), Ram Prashad (PW2), Hans Raj (PW3) and
Dashrath (PW5). I shall delve into their testimony later on in this
judgment. Remaining witnesses were police witnesses viz., initial
investigating officer Inspector Pradeep Rawat (PW4) on whose testimony I
shall reflect later on in this judgment; and PW6 was HC Bhagirath
Poonia, who deposed that he accompanied the IO, SI Harbir Singh from
Special Staff Delhi Police to the Court at Tihar Jail where the accused was
interrogated and his disclosure statement was recorded Ex.PW6/B on
11.06.2020. PW7 was Ct. Harish who deposed that on 23.06.2020, he
accompanied the IO PW10 Inspector Sanjeev Mandal and on
interrogation, the accused made a supplementary disclosure statement
Ex.PW7/A and the accused was taken to the place of occurrence where he
identified the crime scene vide pointing out memo Ex.PW7/B.
12. PW8 was Inspector Gangan Bhaskar, who remained posted
as Inspector at Police Station Vasant Kunj (North) from August, 2016 to
August, 2018 and deposed that he had visited the place of occurrence on
07.11.2016 and on receiving the post mortem report on 28.12.2016, the
present FIR was registered at his instructions and he investigated the matter
on the transfer of Inspector Pradeep Rawat on 05.01.2017. PW9 was
Inspector Harbir Singh who testified that he was posted as SubInspector in
Special Cell and on 11.06.2020, he received information regarding arrest of
accused Vishnu Bahadur by the staff of Special Cell, Janakpuri and then he
went to the concerned Court at Tihar Jail where the accused was interrogated
and his disclosure statement was recorded and formally arrested vide memo
Ex.PW6/A. He deposed that the accused was taken on police remand and
then he handed over the investigation to Inspector Sanjeev Mandal who
interrogated the accused in his presence on 23.06.2020. PW10 completed
the investigation and filed the supplementary charge sheet upon whose
evidence I shall reflect later on in this judgment.
STATEMENT OF THE ACCUSED U/S 313 Cr.P.C:
13. On the closure of the prosecution evidence, the accused was
examined in terms of Section 313 Cr.P.C. and on putting the evidence and
incriminating circumstances against him, he conceded that PW3 Hans Raj
was the owner and landlord of House/Jhuggi No.C172, Kusumpur Pahari,
New Delhi and he also admitted that he was residing on the ground floor
along with his wife and four children. He also admitted that he was working
as a car cleaner in Air India Colony and also admitted that he was blessed
with a child on the day of Dhanteras in the night and PW3 had called a
“Dai”(midwife) and his wife gave birth to a girl child at 04.30 AM.
However, he denied that PW1 Smt. Meera had any conversation with his
wife on 05.11.2016 or that PW1 Smt. Meera had seen that her tenanted room
was locked on 05.11.2016. He denied that PW2 Ram Prashad and PW5
Dashrath saw him present in the tenanted room on 05.11.2016. He denied
accusation that he committed murder of Vimal Kami and denied any
knowledge how the deceased was killed. The accused claimed that he has
been falsely implicated in this case and made the following statement:
Question : Do you want to say anything else ?
Answer : I am an innocent. I have no concerned with the
present case. I have been falsely implicated in this case. At the
time of arrest, I have already stated to the concern police
officers regarding my innocence. I had also told them that I had
left the premises in question/the said jhuggi on the last day of
October, 2016 as my mother and sister were not ready and
willing to help my wife and the newly born baby. Hence, I left
Delhi with my wife and newly born baby on the last day of
October, 2016 to Jharkhand i.e. my inlaws house. When I came
back to Delhi after one month, I met my mother who told me
that in my absence some wrong had happened in my jhuggi and
the police is trying to implicate me. Then I left Delhi due to fear.
I have been falsely implicated in this case. I am innocent.
14. No evidence in defence was led by the accused.
DECISION:
15. I have given my thoughtful consideration to the submissions
made by Ld. Addl. P.P. for the State as also Ld. Counsel for the accused. I
have meticulously gone through the oral and documentary evidence brought
on the record by the prosecution and the testimonies of the prosecution
witnesses. There is no gainsaying that the prime objective of the criminal
justice delivery system is to accord justice to all the stakeholdersthe accused,
the complainant/victim, the society as well as the prosecution. Integral to
such objective is a fair trial to the accused and a fair chance to prove the case
to the prosecution. This finds echoed in a reiteration by the Supreme Court of
India in Dayal Sin. v. State of Uttaranchal, (2012) 8 SCC 263, in which it
was emphasized thus:
“―34. Where our criminal justice system provides safeguards
of fair trial and innocent till proven guilty to an accused, there it
also contemplates that a criminal trial is meant for doing justice
to all, the accused, the society and a fair chance to prove to the
prosecution. Then alone can law and order be maintained. The
courts do not merely discharge the function to ensure that
no innocent man is punished, but also that a guilty man does
not escape. Both are public duties of the judge. During the
course of the trial, the learned Presiding Judge is expected to
work objectively and in a correct perspective. Where the
prosecution attempts to misdirect the trial on the basis of a
perfunctory or designedly defective investigation, there the
Court is to be deeply cautious and ensure that despite such
an attempt, the determinative process is not subverted. For
truly attaining this object of a ―fair trial‖, the Court should
leave no stone unturned to do justice and protect the interest of
the society as well.” {Bold portions emphasized}
16. In the instant matter, I shall endeavour to discharge such duties
to the best of my understanding of law and capabilities. At the outset, the
case of the prosecution is based on circumstantial evidence that is delicately
hinging on the testimonies of PW1, PW3 and PW5. Now, PW1 Smt.
Meera testified to have seen and spoken with Dolly, wife of the accused
Vishnu Bahadur on 05.11.2016 coupled with the testimony of PW2 Ram
Prashad that he had seen the accused Vishnu Bahadur on 05.11.2016,
around 05.00 AM, in the morning when he was going to the jungle for
answering the call of nature and accused was going on his bicycle to his
work. Further, the prosecution also relies upon on the testimony of another
key witness PW3 Hans Raj that he had seen the accused Vishnu Bahadur
talking with the deceased about 5 or 6 days prior to the incident and it relies
further on the testimony of PW5 Dashrath who testified that he had seen
the accused on 05.11.2016 at about 03.00 or 05.00 PM, along with his wife in
the veranda of the room/jhuggi.
17. I am afraid I am unable to persuade myself to give any credence
to the testimony of the aforesaid four prosecution witnesses examined by the
prosecution for there being serious discrepancies, improvements and
embellishment in their testimonies tainted in all human probabilities due to
unfair, perverted and unprofessional investigation in the matter
conducted by PW4 Inspector Pradeep Rawat, PW8 Inspector Gangan
Bhaskar besides PW10 Inspector Sanjeev Mandal. First thing first, it is
the prosecution case that the dead body of the deceased was discovered in the
room/jhuggi on the ground floor shown in the site plan, at point A Ex.PW
3/A (as also in the scaled site plan Ex.PW10/A prepared later on
26.11.2019) on 07.11.2016, at about 14:12 hours. It is the prosecution case
that the door of the room from where foul smell was emanating was locked,
which was broke opened and there was lot of blood on the body and on the
floor, which body was lying on one side along with the wall. The said
circumstances clearly suggested an inference that it was a case of homicide
but it is not understandable as to why the FIR was kept pending and recorded
on 28.12.2016 i.e., after one and half months, although in the interregnum,
the post mortem on the dead body had been conducted on 11.11.2016 that
ruled out suicide. The dead body was sent to the mortuary on 07.11.2016, at
about 09.50 PM, and although, there were found no visible or apparent signs
of injury marks on the body probably due to decomposition, the
accumulation of blood on the spot and the fact that door was locked from
outside would by any common sense & logic must have invited a strong
common sense approach that the case was of “homicide” and not “suicide”.
There is no evidence on the record that the information was sent to
Magistrate in terms of section 174 and/or section 176 of the Cr.P.C and no
inquest was conducted. It is the prosecution case that the post mortem was
conducted on 11.11.2016 and there were found following injuries on the
body of the deceased:
i) Lacerated wound of size 4x1 cm, bone deep present on
midparietal region, margins irregular and contused, with
underlying subscalp hematoma, 15 cm from frontonasal
junction, 17 cm from right Tragus;
ii) Lacerated wound of size 3x1 cm, bone deep present on
right parietal region, margins irregular and contused, with
underlying subscalp hematoma, 20 cm from frontonasal
junction, 15 cm from right Tragus; and
iii) Lacerated wound of size 6x2.5 cm, muscle deep, present on right hand,
margins irregular and contused.
18. It is in evidence that the post mortem report opined that the
cause of death was “coma due to Cranio–Cerebral injury caused due to
blunt force trauma” and the viscera was also preserved to rule out
concomitant intoxication (incidentally the FSL report ruled out poisoning).
The post mortem report also opined that the time since death was about 6 to 7
days i.e., from 05.11.2016. The prosecution has not given explanation as to
how despite the post mortem having been conducted on 11.11.2016, the FIR
was kept pending and then only to be recorded on 28.12.2016 at 11:10 hours
Ex.A1. It is in the aforesaid circumstances that Mr. Shafiullah, Ld. Counsel
for the accused tore into the entire prosecution case bringing out reasonable
doubt in the prosecution case and inviting a strong inference that PW4
IO/Inspector Pradeep Rawat and SHO Inspector Gagan Bhaskar (PW8)
besides PW10 Inspector Sanjeev Mandal did an unfair, perverted and
thorough unprofessional investigation and ultimately a blind case was
attempted to be solved by foisting culpability upon the accused Vishnu
Bahadur based on unreliable and most probably tutored witnesses by the
Police/IO, whose statements under Section 161 Cr.P.C. were shown to have
been recorded first time only on 28.12.2016.
PROOF BEYOND REASONABLE DOUBT:
19. It is well settled that while in criminal cases, the doctrine of
presumption of innocence casts the burden on the prosecution to prove its
case against the accused persons beyond reasonable doubt, it is trite that
doubt to the guilt of the accused should be substantial and not flimsy or
fanciful. Such doubt need not reach certainty, but it must carry a high degree
of probability. In the case of State of U.P. v. Krishna Gopal, (1988) 4 SCC
302, it was observed that “though this standard is a higher standard, there is,
however, no absolute standard. What degree of probability amounts to
―proof is an exercise particular to each case”. Quoting from “the
Mathematics of ProofII : Glanville Williams: Criminal Law Review, 1979,
by Sweet and Maxwell, p. 340 (342), it was observed that :
“The one piece of evidence may confirm the other. Doubts would be
called reasonable if they are free from a zest for abstract speculation.
Law cannot afford any favourite other than truth. To constitute
reasonable doubt, it must be free from an overemotional response.
Doubts must be actual and substantial doubts as to the guilt of the
accused person arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt based
upon reason and common sense. It must grow out of the evidence in
the case.
The concepts of probability, and the degrees of it, cannot obviously be
expressed in terms of units to be mathematically enumerated as to
how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the
degrees of probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense and,
ultimately, on the trained intuitions of the Judge. While the protection
given by the criminal process to the accused persons is not to be
eroded, at the same time, uninformed legitimization of trivialities
would make a mockery of administration of criminal justice”
(underlined emphasized)
20. In the case of Gurbachan Singh v. Satpal Singh, (1990) 1 SCC
445, the Supreme Court quoted observations of Lord Denning in Bater v.
Bater in (1950) 2 All.E.R. 458 that “the standard adopted by the prudent
man would vary from case to case, circumstances to circumstances”. It was
held that the Prosecution is not required to meet any and every hypothesis put
forward by the accused. The contours of benefit of doubt were discussed in
the case of K.Gopal Reddy v. State of AP, of (1979) 1 SCC 355, that a
reasonable doubt means a real doubt, a doubt founded upon reasons. It is also
settled dictum that it is better to let a hundred guilty escape than to punish an
innocent. On the issue of appreciation of evidence of the witnesses, in the
State of Haryana, (2019) 10 SCC 554, it is was observed
v.
case of Rohtas
that it is duty of the Court to separate the grain from the chaff and then to
arrive at a finding of the guilt of an accused. Referring to a plethora case law
on the subject, it was reiterated that:
“An attempt has to be made to, as noted above, in terms of the
felicitous metaphor, separate the grain from the chaff, truth from
falsehood. Where it is not feasible to separate truth from
falsehood, because the grain and the chaff are inextricably
mixed up, and in the process of separation an absolutely new
case has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context and
the background against which they are made, the only available
course to be made is to discard the evidence in toto.”
21. Retaining the aforesaid observations at the back of our mind,
reverting to the instant case, a careful reading of DD No. 37A dated
07.11.2016 would show that when PW4 SI Pradeep Rawat reached the place
of occurrence, there was a huge crowd assembled at or the near the spot and
PW3 Hans Raj came forward and disclosed that he was the owner/landlord
of the property and no one who came forward that day or otherwise had made
any statement to the IO that the room was under tenancy of accused Vishnu
Bahadur and no one placed suspicion that accused Vishnu Bahadur was
involved in the ghastly crime. The prosecution seeks to take mileage from the
fact that the accused was absconding for four years and the fact that the
postmortem report revealed that the murder had been committed 67 days
back before the date of postmortem on 11.11.2016 but what is not
fathomable is that till 28.12.2016, no statement of any witnesses was
recorded under Section 161 of the Cr.P.C. or otherwise in the case diary that
the accused was the real suspect in commission of the murder. On being
prodded, PW4 SI Pradeep Rawat was on slippery turf in his cross
examination on 20.07.2022 when he acknowledged that he had not prepared
any inventory of the articles lying in the room and did not remember if there
was any TV, Gas cylinder or other household items in the nature of utensils
lying in the room. Further, there was no mention of the name of the accused
in the DD No.73B dated 07.11.2016 recorded at 10:30 PM as a suspect,
although PW4 SI Pradeep Rawat acknowledged in his crossexamination
that when he reached the place of occurrence, he came to know that the
accused Vishnu Bahadur was residing in the room as a tenant.
22. There is another twist to the prosecution tale. Interestingly, there
is no statement of PW3 Ram Pal, PW2 Meena, PW5 Dashrath recorded on
07.11.2016 that they had seen the deceased prior to the incident, who was
passed off as an “unknown male”. In fact, DD No.73B Ex. A5 recorded that
the witnesses present at the site were unable to recognize the face of the
deceased and even after recording FIR on 28.12.2016, it is a matter of record
that PW10 Inspector Sanjeev Mandal recorded the statement of the
witnesses on the same day i.e. 28.12.2016 that reads that PW3 Hans Raj as
also other witnesses viz. PW2, PW3 and PW5 had never seen the deceased
prior to the incident and although it was revealed to the IO PW4 Pradeep
Rawat and PW8 that accused Vishnu Bahadur was residing as a tenant, it
was only after the accused was arrested on 11.06.2020 that the supplementary
statements of PW2 Ram Prashad and PW3 Hans Raj were recorded by
PW10 Inspector Sanjeev Mandal who contrary to their earlier versions stated
that they had seen the deceased along with the accused Vishnu Bahadur prior
to the recovery of the dead body on 07.11.2016.
23. Again interestingly, PW10 Inspector Sanjeev Mandal in his
examinationinchief testified that he had collected the case file from
MHC(R) on 20.02.2019 and it appears that supplementary statement of PW3
Hans Raj was recorded on 27.11.2019 regarding preparation of the scaled site
plan Ex.PW10/A wherein he for the first time identified the deceased but
there is no mention of him having seen the deceased with the accused prior to
the incident; and PW10 embarked upon the investigation leading to the
conducting proceedings under Section 82 & 83 of the Cr.P.C. At the cost of
repetition, on 11.06.2020 PW10 was informed by DD No.32A regarding
arrest of the accused Vishnu Bahadur under Section 41.1(c) by ASI
Devender, Special Cell, SWR, Chanakyapuri, New Delhi Ex. A15 albeit in a
daring and thrilling manner, and PW10 interrogated the accused on
22.06.2020 while the accused was on two days police remand. In his cross
examination when PW10 was prodded to explain as to how or in what
manner he had summoned the witnesses whose supplementary statements
were recorded about identifying the deceased and having seen him in the
company of the accused, which statements were recorded on 23.06.2020, he
failed to recount as to how and/ in what manner the witnesses were
summoned but then tried to wriggle out of such lapse by testifying that they
were probably contacted on phone. There is found no notice under section
160 of the Cr.P.C on the record or in the case diary. Ld. Defence Counsel
vehemently urged such aspect of the matter invites a strong inference that the
IO/PW10 Inspector Sanjeev Mandal was by all means eager to solve a blind
case, and thus fabricated such statements under Section 161 of the Cr.P.C
without examining the witnesses PW3 Hans Raj and PW2 Ram Prashad and
to that effect even a suggestion was given that PW10 had manipulated such
statements and had falsely implicated the accused.
24. Now, the purpose of trial under the Criminal Justice System is to
ascertain the “truth” but at the same time, the word “truth” has not been
defined under the Indian Evidence Act. While embarking on the process of
appreciation of evidence to ascertain whether the evidence of the prosecution
witnesses is truthful and of ‘sterling quality’, and whether credence can be
put upon the same, reference can be invited to decision in the case of Mohan
Singh v. State of M.P., (1999) 2 SCC 428, wherein it was held that:
“effort should be made to find the truth; and the Court has to
disperse the suspicious, cloud and dust out the smear of dust
as all these things clog the very truth. So long chaff, cloud
and dust remains, the criminals are clothed with this
protective layer to receive the benefit of doubt. So it is a
solemn duty of the Courts, not to merely conclude and leave
the case the moment suspicions are created. It is onerous
duty of the Court, within permissible limit to find out the
truth. It means, on one hand no innocent man should be
punished but on the other hand to see no person committing
an offence should get Scot free.”
25. Thus, at this juncture, in order to appreciate if the testimony of
the witness is of ‘sterling quality’ and ‘truthful’ , it would be expedient to
refer to the testimony of PW1 Smt. Meera who testified that accused Vishnu
Bahadur was residing as a tenant in the premises and she had been collecting
rent from him @ Rs.1500/ per month on behalf of the landlord Hans Raj
(PW3) and on her failure to recount as to when accused shifted as a tenant
and the date, month or year and the incident, she was permitted to be cross
examined by the Ld. Addl. PP for the State and she acknowledged that the
wife of accused Vishnu Bahadur had given birth to a girl child on the day of
Dhanteras but she failed to recount if the accused was working as a Car
Cleaner in Vasant Vihar or if he was habitual of drinking liquor. She
admitted the suggestion by Ld. Addl PP for the State that on 05.11.2016 was
a Saturday and on that evening, she had seen wife of the accused Vishnu
Bahadur in her room so much so that the wife of the accused told her that her
daughters had gone to the house of her grandmother. She also admitted a
suggestion by Ld. Addl. PP for the State that on next day i.e., Sunday she
found that the tenancy room of accused Vishnu Bahadur was locked. All said
and done, the suggestions, which were put by the Ld. Addl. PP for the State
to PW1 by way of closed questioning method do not help the prosecution
case as she stated in her crossexamination that she had not given any
statement to the police and as discussed hereinbefore there is a serious doubt
about fair investigation in this case by PW10 Inspector Sanjeev Mandal.
26. In so far as the PW2 Ram Prashad is concerned, he testified that
the accused was residing in the tenancy room along with his wife and
children and he testified that he had seen the accused Vishnu Bahadur on
05.11.2016 at 5:00 a.m, but then this fact was revealed by him in his
statement recorded on 23.06.2020 by PW10. While both PW1 & PW2 did
say that foul smell was emanating from the room and the police reached and
found the dead body. PW2 contrary to his statement recorded on 23.06.2020
by PW10/IO Inspector Sanjeev Mandal denied in the witness stand on
08.12.2021 that he had seen the deceased prior to the incident in the company
of the accused.
27. Reverting to the testimony of PW3 Hans Raj, indeed he
supported the prosecution case that he had seen the accused Vishnu Bahadur
talking to the deceased about 5 6 days prior to the incident, but such version
is not inspiring confidence as it was a material improvement over his
previous statement under Section 161 of the Cr.P.C Ex.PW3/D1 dated
28.12.2016 wherein he had stated that he had not seen or knew the deceased
prior to the incident. Although, he volunteered that when he thought deeply
about the matter, he realized that he had seen the deceased prior to 5 6 days
of the incident after giving his statement on 28.12.2016 to the IO. If the
version of PW10 is believed, he had the contact numbers of the witnesses
but PW3 at no stage was not subjected to any query about the suspect or the
identity of the deceased till June, 2020. No doubt that PW3 was an extra
smart witness who spoke in a parrot like manner probably on dictation of the
Police.
28. While appreciating the testimony of the witness, the proposition
of law based on last seen evidence and the burden under section 106 of the
Indian Evidence Act need to be discussed without long jurisprudential
discourse. In the case of State of Rajasthan v. Kashi Ram, (2006) 12 SCC
254 : (2007) 1 SCC (Cri) 688 : 2006 SCC OnLine SC 1163, it was observed
as under:
23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of the
Evidence Act itself are unambiguous and categoric in laying
down that when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him. Thus, if a
person is last seen with the deceased, he must offer an
explanation as to how and when he parted company. He must
furnish an explanation which appears to the court to be probable
and satisfactory. If he does so he must be held to have
discharged his burden. If he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge
the burden cast upon him by Section 106 of the Evidence Act. In
a case resting on circumstantial evidence if the accused fails to
offer a reasonable explanation in discharge of the burden placed
on him, that itself provides an additional link in the chain of
circumstances proved against him. Section 106 does not shift the
burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the accused does
not throw any light upon facts which are specially within his
knowledge and which could not support any theory or
hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as an additional
link which completes the chain. The principle has been
succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 :
1960 Cri LJ 620]
18. In view of the time gap between Manoj being left in the
truck and the recovery of the body and also the place and
circumstances in which the body was recovered, possibility of
others intervening cannot be ruled out. In the absence of definite
evidence that the appellants and the deceased were last seen
together and when the time gap is long, it would be dangerous to
come to the conclusion that the appellants are responsible for the
murder of Manoj and are guilty of committing murder of Manoj.
Where time gap is long it would be unsafe to base the conviction
on the “last seen theory”; it is safer to look for corroboration
from other circumstances and evidence adduced by the
prosecution. From the facts and evidence, we find no other
corroborative piece of evidence corroborating the last seen
theory.
19. In case of circumstantial evidence, the Court has to
examine the entire evidence in its entirety and ensure that the
only inference that can be drawn from the evidence is the guilt
of the accused. In the case at hand, neither was the weapon of
murder nor the money allegedly looted by the appellants or any
other material recovered from the possession of the appellants.
There are many apparent lapses in the investigation and missing
links : (i) Nonrecovery of stolen money; (ii) The weapon from
which abrasions were caused; (iii) False case lodged by PW 2
alleging that he was robbed by some other miscreants; (iv) Non
identification of the dead body; and (v) Nonexplanation as to
how the deceased reached Maniya Village and injuries on his
internal organ (penis). Thus, we find many loopholes in the case
of the prosecution. For establishing the guilt on the basis of the
circumstantial evidence, the circumstances must be firmly
established and the chain of circumstances must be completed
from the facts. The chain of circumstantial evidence cannot be
said to be concluded in any manner sought to be urged by the
prosecution.
29. Thus, on appreciation of the testimony of the PW3 in its

entirety and I am afraid his version that the accused was seen in the company
of the deceased about 56 days prior to 07.11.2016 is utterly unreliable and
could be given no credence; more for the reasons that PW3 testified that
accused Vishnu Bahadur was working as a Car Cleaner in Air India Colony,
Vasant Vihar, New Delhi who was a habitual drunker and he testified in
examinationinchief that on the day of Dhanteras the wife of the accused
had given birth to a girl child and he had called the Dai (midwife) at about
4;00 AM to 4:30 AM. He testified that on the night of Dhanteras he was ill
and painting his house which was located at Sangam Vihar, New Delhi and
therefore had left the site in question. Although testimony of PW5
Dashrath corroborates the version of PW3 that the accused was residing as
a tenant in the house along with his wife and children and he had seen the
accused and wife at the verandah on 05.11.2016 at 3:00 p.m, PW5
acknowledged in his crossexamination that he was a close relative of PW3
Hans Raj and testified that he used to leave for his work at 6:00 AM to 7:00
AM and used to come back by 10:00 PM. He also conceded in his cross
examination that he was not on visiting terms with accused Vishnu Bahadur.
The burden of proof therefore never passed on to the accused why he was
seen with the victim.
30. To sum up, this Court finds the version of the aforesaid
witnesses, having seen the accused and his wife in the tenanted room at any
time of the day on 05.11.2016, is highly questionable because if the said
version is accepted on its face value, it was Diwali time in the year 2016
and Dhanteras was celebrated on 28.10.2016. The property in question is
admittedly located in a densely populated area, and it looks improbable that
the accused would leave abruptly with his wife who had given birth to a child
with three other children lock, stock and barrel over a night without being
noticed by anyone. If they left abruptly without the household articles, at the
cost of repetition, PW4 SI Pradeep Rawat did not prepare any inventory of
the items lying in the tenancy room.
31. It is pertinent to mention here that that fourteen (14)
photographs were taken by the Crime Team proven on the record, which are
marked A10 (Colly) that were admitted in evidence in terms of Section 294
of the Cr.P.C by the defence, that merely show the position of the dead body
from the different angles but there is nothing visible as to what sort of
household items were lying inside the room. The Crime Report Ex.A3, also
admitted by the defence in terms of Section 294 of the Cr.P.C, vide item
No.16 with regard to the Articles examined, chance print developed at the
spot depict blanks. In other words, there is no indication as what sorts of
articles were lying inside the house.
32. In view of the foregoing discussion, I find substance in the
defence plea that although the accused Vishnu Bahadur and his family were
residing as a tenant in the premises, his version that he had left the tenanted
accommodation on the last day of that month, to go to native place of her
wife so that she could be provided with post pregnancy care by his inlaws
located in the State of Jharkhand seems to be quite plausible. At the cost of
repetition, there is no iota of evidence that accused Vishnu Bahadur left with
household articles, no such inventory were prepared by the initial IO PW4
SI Pradeep Rawat and the defence story is probable that in his absence,
somebody barged into the house and not only his household articles were
stolen but some third persons might have committed murder of Vimal Kami.
It goes without saying that no chance prints were lifted from the scene of
crime or from broken whiskey glass bottle, and it cannot be overlooked that
no inquiry was conducted from the Air India Colony, Vasant Vihar, Delhi,
where the accused was working as a Car Cleaner and to ascertain when was
the last time he was seen at work or since when he was missing or not
reporting for the work.
33. It is not the end of the matter. There is another twist to the tale.
The prosecution case is that the disclosure statement of the accused EX.
PW6/B and supplementary disclosure Ex. PW7/B were recorded in which
the accused disclosed the motive of behind the commission of the crime that
the deceased commented about how beautiful was his wife and made some
comments which enraged the accused and led to the crime. While such
disclosure statements are not relevant and can not be looked into, what
clearly looks improbable is that in a room measuring 10x10 ft., the accused
committed ghastly crime of murdering the deceased in the presence of his
wife and children. Anyways, even if such crime might have been possible, at
the cost of repetition, there are posed serious question marks about the
manner in which the investigation was carried out.
34. To my mind, the instant matter is not a case of defective
investigation, and rather all facts and circumstances discussed hereinabove
would go to suggest that the investigation was not only conducted in a
lackadaisical manner by PW4 Inspector Pradeep Rawat, PW8 Inspector
Gangan Bhaskar besides PW10 Inspector Sanjeev Mandal but was also
grossly in unfair manner, and they found a convenient way to solve a blind
murder case by guiding, tutoring and coaxing the witnesses about presence of
the accused and his family in the property on 05.11.2016 and about his
acquaintance with the deceased. No investigation was done about the
background of the deceased and whether he was an acquaintance of the
accused. No one had seen the deceased visiting the property in question. On
the issue of defective investigation, reference can be invited to decision in the
case of C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, wherein
it was observed that:
“55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse
by the IO and whether due to such lapse any benefit should be
given to the accused. The law on this issue is well settled that
the defect in the investigation by itself cannot be a ground for
acquittal. If primacy is given to such designed or negligent
investigations or to the omissions or lapses by perfunctory
investigation, the faith and confidence of the people in the
criminal justice administration would be eroded. Where there
has been negligence on the part of the investigating agency or
omissions, etc. which resulted in defective investigation, there is
a legal obligation on the part of the court to examine the
prosecution evidence dehors such lapses, carefully, to find out
whether the said evidence is reliable or not and to what extent it
is reliable and as to whether such lapses affected the object of
finding out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial…..”
35. Reference can also be invited to decision in the case of Gargi v.
State of Haryana, (2019) 9 SCC 738, it was observed that wherein the role
of the IO was discussed who had committed glaring omissions at the very
initial stage, failing to making enquiries in the locality regarding the
character of the appellant, and though he had examined the children of the
appellant in the investigation but did not record their statements either;
further not bothering to take statement of the tenant whose testimony would
have been of immense significance, looking to the nature of accusations as
also the factors related with the building in question. It was observed:
20.6. Moreover, in this matter, where it was prima facie
appearing that the clues available at the site might play a
significant role in reaching to the real culprits, it is also
intriguing to notice that the investigating officer did not take
even elementary care to obtain fingerprints from the material
objects and to get them analysed properly. The investigating
officer (PW 10) has stated, rather with impunity, that he did not
take any fingerprints at all, even while admitting that the
fingerprint expert did visit the site. It is not stated that the so
called expert expressed inability to collect such prints for any
reason. It is left only for one to wonder as to for what purpose
did the socalled fingerprint expert visit the site, if no prints
were to be taken at all!
20.7. The abovementioned unexplained shortcomings, perforce,
indicate that in this case, the investigation was carried out either
with preconceived notions or with a particular result in view. It
is difficult to accept that the investigation in this case had been
fair and impartial. From another viewpoint, on the facts and in
the circumstances of this case, the omissions on the part of
investigating agency cannot be ignored as mere oversight.
These omissions, perforce, give rise to adverse inferences
against the prosecution.
36. In view of the foregoing discussion, although valiant efforts

were made by the Ld. Addl. PP for the State to present to salvage the
prosecution case based on “last seen evidence” reflected from the testimony
of the witnesses besides arguing that “flight is an evidence of guilt” since the
accused absconded away soon after the incident and had a plausible motive, I
find that the prosecution has not been able to prove the guilt of the accused
Vishnu Bahadur beyond reasonable doubt. Not only that there are visible
cracks in the prosecution story but also that the investigation was not only
unfair besides being thoroughly unprofessional thereby throwing all the
procedural norms & safeguards to the wind. It is not understandable as to
why the FIR was kept pending for more than one and half months despite
finding a clear case of homicide and why the statements of witnesses were
not recorded till 28.12.2016. There is no explanation why the information
was not given to the District Magistrate under section 174 & 176 of the
Cr.P.C and no inquest was done. It is not understandable what were the
superior officers of the rank of ACP or the DCP were doing all along and
how they were supervising or monitoring the investigation that was being
conducted by the concerned police officers in such a heinous crime. The
prosecution story that the accused was absconding is a sham as even the
processes issued under section 82 & 83 Cr.P.C were an eyewash and I must
say that the Ld. Committal Court did not properly scrutinize the reports in
this regard since it is evident that such processes were sent to the address of
the tenancy premises in question and not to his native place. No worthwhile
steps were taken to locate the mother and sister of the accused who were
residing nearby. No inquiries were made from the native place of the
deceased either about his relationship with the accused. Hence, this Court
has no hesitation in acquitting the accused of all the charges. The
accused is hereby acquitted. He be released forthwith, if not required in
any other case. The accused is directed to furnish Personal Bond/Surety
Bond in the sum of Rs.10,000/ in terms of Section 437A of the Cr.P.C.
Before parting with this case, exercising suo moto powers of revision under
Section 397 Cr.P.C. the order dated 12.05.2021 passed by the Ld. Committal
Court whereby the coaccused Dolly, wife of the accused, was declared
proclaimed offender is also quashed for the simple reason that the issuance of
processes issued under 82 & 83 Cr.P.C was a sham & bogus exercise, which
fact was completely overlooked by the Ld. Committal Court and suffers
from the vice of illegality.
37. A copy of this Judgment be sent to the Commissioner of Police,
Delhi who is requested to look into the matter and may initiate appropriate
disciplinary proceedings against the erring police officials viz., by PW4
Inspector Pradeep Rawat, PW8 Inspector Gagan Bhaskar besides
PW10 Inspector Sanjeev Mandal for the glaring lapses on their part
discussed in this judgment, as per the procedure established by the law.
38. File be consigned to the Record Room.
DHARMESH Digitally signed by
DHARMESH SHARMA
SHARMA Date: 2022.11.16 16:34:29

+0530
Announced in the open Court (DHARMESH SHARMA)
on 15th November, 2022 Principal District & Sessions Judge (NDD)
Patiala House Courts, New Delhi

State V Vishnu Bahadur

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29. Thus, on appreciation of the testimony of the PW3 in its

36. In view of the foregoing discussion, although valiant efforts

SHARMA Date: 2022.11.16 16:34:29

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State V Vishnu Bahadur

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State Versus Vishnu Bahadur

29. Thus, on appreciation of the testimony of the PW­3 in its

36. In view of the foregoing discussion, although valiant efforts

SHARMA Date: 2022.11.16 16:34:29

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29. Thus, on appreciation of the testimony of the PW3 in its