Delhi District Court
State vs Subhash Jana on 29 January, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 281/2017
CNR No. DLNE01-009335-2016
FIR No. 223/2017
PS Bhajanpura
U/s 302 R/w section 34 of IPC, 1860.
STATE VERSUS SUBHASH JANA & ANR.
Date of Committal : 25.09.2017
Date of Arguments : 15.01.2025
Date of Judgment : 29.01.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 3
3. Prosecution Evidence 5
4. Plea of the Accused Person 22
5. Submissions made on behalf of the State 23
6. Submissions made on behalf of the Accused 25
Person
7. Case Laws 27
8. Appreciation of Evidence 34
9. Conclusion & Findings 47
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.01.29
11:26:26
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/29.01.2025
CNR No. DLNE01- 009335-2016 State Vs. Subhash Jana & Anr. FIR No.223/2017 Page no. 1/50
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 281/2017
CNR No. DLNE01-009335-2016
FIR No. 223/2017
PS Bhajanpura
U/s 302 R/w section 34 of IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE VERSUS SUBHASH JANA & ANR.
Date of Committal : 25.09.2017
Date of Arguments : 15.01.2025
Date of Judgment : 29.01.2025
Brief details of the case
A) Case FIR No. : 223/2017
B) Charges framed under section : 302 R/w section 34 of
IPC, 1860 against
both the accused
persons.
C) Name of the accused persons : (1) Subhash Jana
S/o Late Sh. Arvind
Digitally
signed by
ATUL
Jana ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:26:35
+0530
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R/o Village Neem
Dangi, PS Pusura,
Dist. Hooghly, West
Bengal.
(2) Achinto Ghosh
S/o Sh. Kani Lal
Ghosh
R/o Village Tantisal,
PS Khana Khul, Dist.
Hooghly, West
Bengal.
D) Plea of the accused persons : Not guilty
E) Final Order : Acquittal
F) Date of Order : 29.01.2025
JUDGMENT
(Pronounced on the 29th day of January, 2025)
Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 05.06.2017,
when DD no. 44-B was registered at PS Bhajanpura at 01:30 PM,
wherein it was recorded that “Gali no.8, A-31, Bhajanpura, Aggarwal
Sweets, 18-20 saal ke ladke sath jhagda hua tha jo dead pada hai” . The Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:26:44
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said call was made from mobile no. 9278231946 and same was marked
to ASI Narender Kumar for further action.
2. The Inquiry Officer ASI Narender Kumar reached the spot and
found that in gali no.5, public persons were gathered and during the
inquiry it was found that at house no. A-30, 2 nd Floor, Gali no.5, one
young man was lying dead. The IO ASI Narender Kumar went on the 2 nd
floor of the said building and found that in the last room situated on the
said floor, one boy, whose name was later found out to be Ranjeet S/o
Sh. Sunatan Ghadai, native resident of Village Chaubispur, PS Janakul,
Dist. Hooghly, West Bengal was lying dead. The dead body was found to
be quite stiff as rigor mortis had already set in. The dead body of the
deceased was found wearing a half pant and there was no other piece of
clothing found on the said dead body. When the dead body was turned
around, the IO found that there were number of contusions present on the
entire back and the skin had turned blue. The mouth of the dead body
was found in open condition and there was also an injury mark on the
left knee and right elbow.
3. The SHO PS Bhajanpura reached the spot and the IO had called
the crime team. The crime team had inspected the spot and the
photographs of the crime scene from different angles were taken. The In-
charge Crime Team had prepared the crime scene report. The crime
scene was secured through Ct. Praveen and the dead body was removed
to the mortuary of GTB Hospital by IO ASI Narender.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:26:51
+0530
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4. The IO got the dead body preserved for 72 hours, to get the
postmortem conducted. The IO returned back on the spot, however, in
spite of best efforts, no witnesses could be traced. On the basis of the
dead body being found and upon the circumstances surrounding the
discovery of the said body, offence u/s 302 IPC, 1860 was found to have
been committed. IO ASI Narender prepared the rukka and the present
case FIR was registered at PS Bhajanpura on 05.06.2017 itself. After
completing the investigation, the IO filed the chargesheet before the
court of Ld. Metropolitan Magistrate Court u/s 302/34 IPC, 1860 against
the accused persons.
5. After compliance of section 207/208 Cr.P.C, the case was committed
by the Court of Ld. MM before this court on 25.09.2017. The
chargesheet was received by the Ld. Predecessor of this court by way of
assignment on 11.10.2017. Thereafter, the charges were framed by my
Ld. Predecessor on 03.11.2017 u/s 302 r/w section 34 of Indian Penal
Code, 1860 against accused persons. The accused persons pleaded not
guilty and they had claimed trial.
Prosecution Evidence:
6. To prove its case, the prosecution has examined 20 (Twenty)
witnesses and out of the said witnesses, there are 5 public witnesses
including 3 eye witnesses; 1 medical witness; 1 judicial witness; 13
formal witnesses, and 2 Investigating Officers:
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:26:58
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7. Public Witnesses:-
(7.1.1) PW-1 is Sandeep Singh and he is the nephew of the
deceased and as per the case of the prosecution he was one of the eye
witness. He had deposed that he was the native of District Howrah, West
Bengal and he was working as a labour with one Jahangir Kabir. The
deceased was his distant relative (mama) and he had further deposed that
he did not knew as to with whom the deceased was working prior to his
death.
(7.1.2) PW-1 Sandeep Singh further deposed that on the day of the
incident, he received a phone call from some neighbour, whose name he
did not remember, wherein, he was informed that his mama Ranjeet had
been murdered. He reached the spot at about 02:00 PM and saw the dead
body of his mama lying there and the said dead body had already turned
black by that time. He had identified the dead body of the deceased vide
memo, Ex. PW1/A, after the postmortem was conducted at GTB
Hospital. The dead body was later handed over to PW-8 Bhola Nath vide
handing over memo, Ex. PW1/B, in the presence of PW-1.
(7.1.3) PW-1 Sandeep Singh was declared hostile and at the request
of Ld. Addl. PP for the State, he was cross examined at length by Ld.
Addl. PP for the State, however, nothing material came out in his cross
examination. Although, he had admitted the suggestion that he had told
the IO at the time of recording of his statement, Ex. PW1/C, that the
deceased used to work on the 2 nd floor of the building where his dead Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:27:03
+0530
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body was found and accused Subhash Jana was also working with the
deceased as a labour. However, he had categorically denied the
suggestions that accused Subhash Jana had told him that the deceased
had stolen the money belonging to accused Subhash Jana or that on
04.06.2017, both the accused persons had consumed liquor and given
beatings to the deceased in his presence. He also denied the suggestion
that after seeing the accused persons giving the beatings to the deceased,
he had come down to the 1st floor for sleeping. He admitted the
suggestion that when he came to the 2 nd floor at about 02:00 PM on
05.06.2017, he had seen the blue marks on the back of the dead body of
the deceased.
(7.1.4) PW-1 Sandeep Singh during his cross examination
conducted by Ld. Addl. PP for the State had specifically deposed that he
was not aware if any person by the name of Abhijeet was also present
there when he found his mama’s dead body, however, he categorically
denied the suggestion that the said Abhijeet told him that his mama
Ranjeet had died due to the beatings received by him at the hands of the
accused persons.
(7.2.1) PW-2 is Jaydev Bera and he is also one of the ocular
witness, as per the case of the prosecution. He had deposed that he was
also a permanent resident of West Bengal and he was working as a
labour manager with his landlord one Jahangir Kabir. He had deposed
that accused Subhash Jana and Achinto Ghosh were also working as
labourers for preparing the artificial jewelry in the same premises. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:27:12
+0530
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(7.2.2) PW-2 Jaydev Bera had further deposed that on the night of
04.06.2017, after taking dinner he had gone to sleep. In the morning i.e.
on 05.06.2017, he came to know through some labour that someone had
killed one person, whose name he did not knew. He further deposed that
he had not seen the dead body and he also did not knew if the name of
the deceased was Ranjeet. He further categorically deposed that the
police officials made some inquiries from him and obtained his
signatures on some papers and his statement was recorded by the police
officials on his own.
(7.2.3) PW-2 Jaydev Bera was declared hostile and at the request
of Ld. Addl. PP for the State and he was cross examined at length by Ld.
Addl. PP for the State, however, nothing material came out in his cross
examination.
(7.2.4) PW-2 Jaydev Bera had deposed during his cross
examination conducted by Ld. Addl. PP for the State that he knew one
Abhijeet who was working as a labour with one Kabir contractor and the
said Abhijeet used to work in producing artificial jewelry. His statement,
Mark PW-2/A was read over to him, however, he denied making the said
statement before the IO. He had categorically denied all the suggestions
being put to him, as allegedly being recorded in his statement u/s 161
Cr.PC.
(7.3.1) PW-2 is Jahangir Kabir and as per the case of the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:27:18
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prosecution he was the landlord and the employer, where the deceased
Ranjeet and the accused persons used to work in producing artificial
jewelry. As per the prosecution version, the premises from where the
dead body of the deceased was recovered, belonged to PW-3 Jahangir
Kabir and the deceased and the accused persons were all working for
him.
(7.3.2) PW-2 Jahangir Kabir further deposed that he was carrying
out the work of production of artificial jewelry at house no. 30, A-Block,
Gali no.5, Bhajanpura, Delhi after taking the said premises on rent. The
said house was constructed up to 4 stories and he was carrying out his
work on the 2nd floor of the said house through labour on contract basis.
He further deposed that in the year 2014, deceased Ranjeet, accused
Subhash Jana, accused Achinto Ghosh and one Abhijit Pandit alongwith
other persons were working as labour for him on the 2 nd floor of the said
house. He also deposed that the said persons used to reside in the same
building on the ground floor.
(7.3.3) PW-2 Jahangir Kabir further deposed that on 05.06.2017, at
about 11:00 AM, he had received a phone call from one Jaydev, who was
one of his employees and that he was informed that there was some
dispute and he was asked to reach there immediately. By the time, he
reached the spot, the police officials had already arrived there. He
alongwith the police officials went to the 2 nd floor of the said house and
found that the dead body of Ranjeet was lying in a room. He
categorically deposed that it had not come to his knowledge, as to who Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:27:24
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had killed Ranjeet. He did not suspect anyone and had also deposed that
he had no knowledge as to how Ranjeet had died. He further deposed
that he alongwith accused persons and his labours Abhijit and Jaydev
were taken to the PS by the police officials and later the accused persons
were detained and they were let off after the inquiry.
(7.3.4) PW-2 Jahangir Kabir was declared hostile and at the request
of Ld. Addl. PP for the State and he was cross examined at length by Ld.
Addl. PP for the State, however, nothing material came out in his cross
examination. The statement of PW-2 Jahangir Kabir recorded u/s 161
Cr.PC, 1973, Ex. PW3/A by the IO was read over to him, however, he
had categorically denied making any such statement before the IO.
(7.3.5) PW-2 Jahangir Kabir during his cross examination
conducted by Ld. Addl. PP for the State had categorically denied stating
before the IO that the said premises, where the dead body was recovered
belonged to him. He voluntarily deposed that the said premises was a
rented house and the owner of the said house was one Montu Kanthal
and he was paying rent for the 2nd floor. He further deposed that no rent
receipt used to be issued by the landlord and there was no written
agreement regarding the said tenancy and that he was not having any
documentary proof regarding the tenancy in question.
(7.3.6) PW-2 Jahangir Kabir during his cross examination
conducted by Ld. Addl. PP for the State had categorically denied that
accused Subhash Jana was a thekedar (contractor) and the other persons Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:27:30
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including accused Achinto Ghosh and the deceased Ranjeet were
working for accused Subhash Jana. He deposed in the voluntarily part
that accused Subhash Jana was working for him, however, he could not
show any proof that the deceased was working for him or that he was
paying him wages. He further categorically denied of making any call at
his office at about 11:00 AM on 05.06.2017 or that it came to his
knowledge that there was a quarrel which had taken place between the
accused persons on one side and the deceased on the other side. He also
categorically denied the suggestion that it came to his knowledge that
both the accused persons had given beatings to the deceased or that the
deceased died due to the said beatings.
(7.4.1) PW-6 is Abhijit Pandit and as per the case of the prosecution
he is the star ocular witness. During the investigation, his statement u/s
164 Cr.PC, 1973, Ex. PW6/A was recorded before the Ld. MM.
(7.4.2) PW-6 Abhijit Pandit had deposed that the deceased used to
work with him at the house, where the dead body of the deceased was
recovered. He further deposed that they were both making artificial
jewelry for one Jahangir Kabir, who was their employee and they were
paid by the said Jahangir Kabir on per piece basis. He further deposed
that the accused persons were also working under the said employer on
per piece basis and their work timings were from 06:00 AM to 12:00
Noon and from 02:00 PM to 06:00 PM.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
(7.4.3) PW-6 Abhijit Pandit had further deposed that on 2025.01.29
11:28:50
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05.06.2017, he was sleeping till 10:00 AM and when he woke up, there
was a commotion. He went to the 2nd floor of the said house and found
that deceased Ranjeet was lying unconscious on the floor. He came down
and the police officials had arrived there. He further deposed that the
police officials took him and the accused persons to the PS and inquiries
were made from him. He had told the police officials that he had not
seen anything.
(7.4.4) PW-6 Abhijit Pandit had further deposed that he was given
beatings by the police officials of PS Bhajanpura and he was being
threatened that if he wanted to save himself, then he should do as they
instructed. He was told by the said police officials that he would be taken
to the Court and would be produced before Ld. MM and he was tutored
to say exactly what he was being told by the said police officials. He was
also warned by the said police officials that he should not dare to
disclose about the said beatings to the Ld. MM. Thereafter, on
09.06.2017, he was produced before the Ld. MM and his statement, Ex.
PW6/A was recorded, wherein, he had merely toed the line, as per
instructions received by him. He admitted the contents of his statement
u/s 164 Cr.PC, Ex. PW6/A, however, he went on to categorically depose
that he had stated all the said facts, upon instructions of the IO and under
compulsion.
(7.4.5) PW-6 Abhijit Pandit was declared hostile and at the request
of Ld. Addl. PP for the State and he was cross examined at length by Ld.
Addl. PP for the State, however, nothing material came out in his cross
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:29:08
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examination. The statement of PW-6 Abhijit Pandit recorded u/s 161
Cr.PC, 1973, Mark PW6/B by the IO was read over to him, however, he
had categorically denied making any such statement before the IO.
(7.4.6) PW-6 Abhijit Pandit categorically denied all the suggestions
being put to him by the Ld. Addl. PP for the State on the basis of his
alleged statement recorded u/s 161 Cr.PC, Mark PW6/B. He
categorically denied being a witness to any incident, wherein, the
accused persons had given beatings to the deceased during the night of
04.06.2017 or that the accused Subhash Jana had raised any doubt upon
the deceased of committing theft of money belonging to accused
Subhash Jana or that after consuming liquor, both the accused persons
had inflicted injuries upon the deceased with a wooden brush or while
giving the said beatings, the accused persons were continuously asking
the deceased about the stolen money or that the deceased was denying of
committing any theft. He also categorically denied the suggestion that
after seeing the alleged incident he had gone to the roof of the said house
to sleep or that when he came back to the room at about 03:00 AM on
05.06.2017, he saw that the accused persons were beating the deceased
with the said brush or that after seeing the same he got frightened and
went back to sleep and lastly, the suggestion that the deceased Ranjeet
had died due to the beatings given to him by the accused persons.
(7.5.1) PW-8 is Bholanath Santra and he is the uncle (mama) of the
deceased. He is not an ocular witness as per the case of the prosecution
and during his testimony the dead body identification memo, Ex. PW8/A Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:29:45
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and the receiving of the dead body, vide memo, Ex. PW1/B were brought
on record.
8. Judicial Witness
(8.1.1) The prosecution has sought to prove the recording of the
statement of eye witness Abhijit Pandit u/s 164 Cr.PC, 1973 through the
testimony of PW14 Sh. Devender Kumar Garg, the then Ld. ACMM,
KKD Courts. The statement of Abhijit Pandit was brought on record as
Ex. PW6/A and as per the testimony of PW14, the said statement was
recorded by him, upon the application moved by the IO, vide Ex.
PW14/A. The statement u/s 164 Cr.PC was re-exhibited as Ex. PW14/B.
9. Formal Witnesses:
(9.1.1) The prosecution has sought to prove the copy of the FIR,
Ex. PW4/A, endorsement, Ex. PW4/B on the rukka and certificate u/s
65B of Indian Evidence Act, Ex.PW4/C, through the testimony of Duty
Officer, PW4 ASI Raj Kumar.
(9.2.1) Through the testimony of PW-9 ASI Ravinder Kumar, who
was the special messenger, the prosecution has sought to prove that on
05.06.2017, upon the instructions of the DO, he had delivered the copy
of the present case FIR, to the Ld. Ilaka Magistrate, DCP and Joint CP
concerned.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:29:57
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(9.3.1) The photographs of the crime scene taken by PW17 HC
Sudhir Kumar, Expert Photographer, Mobile Crime Team, North East
District were brought on record. The said 21 photographs of the crime
scene from different angles were exhibited as Ex. PW17/A (colly) and
the certificate issued u/s 65-B of Indian Evidence Act was exhibited as
Ex. PW17/B.(9.4.1) The scaled site plan, Ex. PW5/A was brought on record
through the testimony of the Droughtsman, PW5 Inspector Mahesh
Kumar.
(9.5.1) Through the testimony of PW13 ASI Rajnish Kumar, the
PCR form-I, Ex. PW13/A and the certificate u/s 65-B of Indian Evidence
Act, Ex. PW13/B were brought on record.
(9.6.1) Through the testimonies of PW15 Ct. Hemraj and PW19
ASI Madan Singh, the prosecution has sought to prove that on
07.06.2017, upon the directions of the IO Inspector Rajeev Ranjan,
PW15 and PW19 went to GTB Hospital alongwith the authority letter,
Ex. PW19/A for getting the postmortem of the deceased conducted. After
the identification of the dead body through the relatives, after recording
their statements, Ex. PW1/A and Ex. PW8/A, the postmortem was
conducted. After the postmortem, the dead body was handed over to the
relative of the deceased vide receipt, Ex. PW1/B. They had further
deposed that the clothes of the deceased, which were handed over by the
doctor, were sealed and seized by the IO, vide memo, Ex. PW11/A. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:30:03
+0530
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PW11 Ct. Harsh had deposed that the said handing over of the pullanda
and sealing of the samples vide seizure memo, Ex. PW11/A was
prepared by the IO in his presence.
(9.7.1) The copy of the register no. 19 containing relevant entries at
serial no. 2765/17, 2776/17, 2765/17, Ex. PW16/A (colly) and the RC
No. 116/21/17 alongwith relevant entry in register no. 21 were exhibited
as Ex. PW16/B were brought on record through the testimony of PW16
HC Arun who was the then MHC(M), PS Bhajanpura.
(9.8.1) The initial call made to the police vide DD no. 44-B was
marked to Inquiry Officer, PW10 ASI Narender and he alongwith PW7
Ct. Yogender had reached the spot and found that in front of H. No.
A-30, Gali no. 5, Bhajanpura, some public persons were gathered. The
beat constable PW12 Ct. Praveen also received there. On inquiry it was
found that the incident had taken place in the said house on 2 nd floor.
Thereafter, the IO reached the 2nd floor of the said house and found that
the dead body of the deceased was lying in the room situated at the back
of the said floor. No eye witnesses were found present at that time. There
were injury marks on the dead body and during inspection, when the
dead body was turned around, the back of the deceased was found to be
turned blue in colour. Upon inquiry, the name of the deceased came to
the knowledge of the IO. He informed the SHO and after sometime the
SHO PS Bhajanpura, alongwith Inspector Rajeev Ranjan reached the
spot.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:30:19
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(9.8.2) It had further come in the testimony of PW10 ASI Narender,
PW12 Ct. Praveen and PW7 Ct. Yogender that crime team was informed
and the crime team reached on the spot and inspected the dead body at
the scene of crime. The crime team photographer had taken the
photographs of the dead body and the scene of crime from different
angles.
(9.9.1) Through the testimony of main IO PW20 Inspector Rajeev
Ranjan, the initial IO PW10 ASI Narender and PW7 Ct. Yogender it had
come on record that after the IO PW20 Inspector Rajeev Ranjan reached
the spot and was brief by PW10 ASI Narender, he had inspected the spot
and prepared the site plan, Ex.PW10/B at the instance of PW10 ASI
Narender. The photographer PW17 HC Sudhir Kumar took the
photographs of the scene of crime. He made the inquiries and recorded
the statement of the landlord, namely Jahangir Kabir, who was found
present in the house. The IO then recorded the statement of the relative
of the deceased, namely Sandeep Singh. He also met one Jaydev Bera
and Abhijit Pandit and after making inquiries from them, he recorded
their statement. During the inquiry it was found that the accused persons
were also residing in the same room as the deceased and both of them
had given beatings to the deceased, since they had suspected the
deceased of stealing Rs. 50,000/- belonging to accused Subhash Jana.
They made searches for the accused persons, however, they were not
traced and no clue about them was found, therefore, he alongwith the
police staff returned back to the PS and he recorded the statements of the
staff who had joined the investigation with him. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:30:41
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(9.9.2) Through the testimony of main IO PW20 Inspector Rajeev
Ranjan, the initial IO PW10 ASI Narender and PW7 Ct. Yogender that
on 06.06.2017, the IO PW20 Inspector Rajeev Ranjan constituted a team
consisting of himself, PW10 and PW7. With the information received
from one secret informer, the accused persons were arrested near Khajuri
Chowk, near Aggarwal Sweets at 03:00 PM to 03:15 PM. The accused
Subhash Jana and Achinto Ghosh were arrested vide arrest memo, Ex.
PW7/A and Ex. PW7/B respectively. Their personal search was
conducted, vide memos, Ex. PW7/C and Ex. PW7/D respectively.
During interrogation, both the accused persons admitted their
involvement in the offence in question and their disclosure statements,
Ex. PW7/E and Ex. PW7/F respectively were recorded by the IO.
(9.9.3) Through the testimony of main IO PW20 Inspector Rajeev
Ranjan, the initial IO PW10 ASI Narender and PW7 Ct. Yogender it was
brought on record that in their respective disclosure statements, both the
accused persons had disclosed that they could get the wooden brush,
with which they had given beatings to the deceased recovered from the
bathroom of their rented accommodation, from where the dead body of
the deceased was found. Thereafter, the accused persons led the police
party headed by the IO to the place of occurrence and vide their pointing
out memo, Ex. PW7/G upon which both the accused persons had
appended their respective signature, the wooden brush, Ex.P-1 was
recovered from the bathroom of the said rented accommodation. The IO
had sealed the weapon of the offence with the seal of PW10 ASI Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:30:47
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Narender, ‘NK’, since the IO was not carrying his own seal at that time.
The wooden brush was seized by seizure memo, Ex. PW7/H. The
accused persons were brought back to the PS and were lodged in the
lockup and the case property was deposited in the malkhana.
(9.9.4) Through the testimony of main IO PW20 Inspector Rajeev
Ranjan, PW15 Ct. Hemraj and PW19 ASI Madan Singh it was brought
on record that on 07.06.2017, the identity of the deceased was confirmed
through the statements of his relatives, Ex. PW1/A and Ex. PW8/A. The
postmortem was conducted and the dead body was handed over to the
relatives vide memo, Ex. PW1/B. After the postmortem, the PW19 ASI
Madan Singh handed over the sealed pullanda containing the clothes of
the deceased and same was seized by the IO vide seizure memo, Ex.
PW11/A, in the presence of Ct. Harsh.
(9.9.5) Through the testimony of main IO PW20 Inspector Rajeev
it was brought on record that on 09.06.2017, he had made an application,
Ex. PW20/A-1, before the Court of Ld. MM, for getting the statement of
the eye witness, Abhijit Pandit recorded before the Ld. ACMM.
Thereafter, he obtained the postmortem report, Ex. PW18/B and had sent
the wooden brush, Ex. P-1 to the postmortem surgeon for giving
subsequent opinion regarding the weapon of the offence, through a road
certificate, Ex. PW16/B and the corresponding entry was made in
register no.21. Thereafter, he obtained the crime team report and the
photographs of the crime scene, Ex. PW17/A(colly) and he went on to
categorically depose that the said photographs were placed on record, Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:30:53
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however, the crime team report was not placed on the record.
(9.9.6) PW20 Inspector Rajeev correctly identified the accused
persons before the Court and he also correctly identified the wooden
brush, Ex. PX-1 (which was earlier exhibited as Ex. P-1) and the clothes
of the deceased, Ex. PX-2.
10. Medical Witness:-
(10.1.1) PW-18 is Dr. Vishwajeet Singh and he has prepared the
postmortem report, Ex.PW18/B (colly). He had deposed that on
07.06.2017, he was posted as the Senior Demonstrator at GTB Hospital
Mortuary. On that day at about 2:00 PM, IO Inspector Rajiv Ranjan
alongwith ASI Madan Singh, PS Bhajanpura presented inquest papers
for postmortem on the body of the deceased Ronjit Ghorni, 20 years,
male. Before starting the postmortem, the dead body was identified by
the uncle of the deceased, namely Bhole Nath and the nephew of the
deceased, namely Sandeep Singh.
(10.1.2) PW-18 Dr. Vishwajeet Singh had further deposed that
Postmortem was started at 2:10 PM and was concluded at 3:40 PM. The
General observations were made as under:
Dead body was wearing dark grey cappri. Rigor mortis was
passed off. Marbling was present over shoulder top. Greenish
discolouration was present over abdomen.
On external examination, 11 ante mortem injuries were Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:31:07
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noted over the body of deceased, the details of which are mentioned in
PM report No. 831/17 on page no. 2 of the said report. The injuries were
also labeled in the diagram printed on page no. 2 of the said report.
On internal examination, sub dural hemorrhage was present
over bilateral parietal and left frontal region. Sub arachnoid hemorrhage
was present over bilateral frontal region. Stomach contained about 20 ml
yellowish fluid. Walls were normal.
(10.1.3) PW-18 Dr. Vishwajeet Singh had further deposed that in the
postmortem report, he had given the opinion as to the time since death
was about “2 days”.
(10.1.4) PW-18 Dr. Vishwajeet Singh had further deposed that in the
postmortem report, he had given the opinion as to the cause of death as
“shock as a result of ante mortem head injury produced by blunt force
impact.” He has further opined that “All injuries were ante mortem in
nature and injury no. 1 to 11 were produced by blunt force impact.”
(10.1.5) PW-18 Dr. Vishwajeet Singh had further deposed that after
the postmortem, clothes of the deceased were preserved and sealed and
handed over to the IO. 14 (fourteen) inquest papers were initialed and
handed over to the IO along with the postmortem report in original. The
Inquest papers running into 14 pages (including request for postmortem)
were collectively exhibited as Ex.PW18/A (colly). The PM report no.
831/17 running into 4 pages was collectively exhibited as
Ex.PW18/B(colly). Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:31:22
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(10.1.6) PW-18 Dr. Vishwajeet Singh had further deposed that on
09.08.2017, IO Inspector Rajeev Ranjan had moved an application
before the HOD, Department of Forensic Medicines, GTB hospital, for
seeking subsequent opinion regarding weapon of the offence. The said
application was marked to him alongwith one sealed parcel, duly sealed
with the seal of ‘NK’. On opening the sealed parcel, same was found
containing one wooden brush, alleged to be the weapon of offence. He
had prepared a diagram of the said weapon of offence (without scale),
Ex. PW18/D.(10.1.7) PW-18 Dr. Vishwajeet Singh had further deposed that upon
examination of the alleged weapon of offence, he had opined that “injury
no. 1 to 11 as mentioned in postmortem no. 831/17 were possible by
wooden brush given for examination.” The subsequent opinion no.
118/17 dt. 10.08.2017 given by him in this regard was exhibited as
Ex.PW18/C.
(10.1.8) PW-18 Dr. Vishwajeet Singh had correctly identified the
wooden brush, Ex. P-1 at the time of his examination-in-chief, being the
same weapon which was produced before him at the time of examination
qua the subsequent opinion regarding the weapon of the offence.
Plea of Accused Persons:
11. After completion of prosecution evidence, PE was closed. The Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
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+0530
statement of the accused Subhash Jana and Achinto Ghosh was recorded
under Section 313 Cr.P.C., 1973 in which they had pleaded innocence.
12. The accused persons chose not to lead any Defense Evidence.
13. I have heard the arguments advanced by Sh. Kamal Akhter, Ld.
Additional PP for the State and Sh. Ajay Kumar, Ld. Counsel for
accused persons. I have minutely gone through the evidence brought on
record and the material aspects of the case.
Submissions made on behalf of the State:
14. It has been argued by the Ld. Addl. PP for the State that the
prosecution has proved beyond reasonable doubt that in the intervening
night of 04.06.2017 to 05.06.2017, between 10:00 PM to 11:00 AM, at
H. No. A-30, Gali no.5, 2nd floor, Bhajanpura, Delhi, both the accused
persons in furtherance of their common intention shared with each other
had committed the murder of deceased Ranjeet, by causing him injuries
with a wooden brush and by fist and leg blows and the said assault was
carried out by the accused persons with the intention of causing such
bodily injuries in the head, back and other body parts of the victim, as
they knew it to be likely to cause death and was sufficient in the ordinary
course of nature to cause death of deceased Ranjeet. Therefore, all the
ingredients of the offence punishable u/s 302/34 IPC, 1860 are made out
in the present case. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:31:33
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15. It is further submitted by the Ld. Addl. PP for the state that the
medical evidence has duly proved that the deceased Ranjeet had died due
to shock as a result of ante mortem head injury produced by blunt forced
impact. Furthermore, there were as many as 11 separate injuries found
on the body of the deceased and all the said injuries were produced a
blunt object. As per the opinion of the concerned doctor, PW18 Dr.
Vishwajeet Singh, the said injuries mentioned from serial no.1 -11 in PM
report, Ex. PW18/B was possible to have been inflicted through the
wooden brush, Ex. P-1, which was sent to him for subsequent opinion,
Ex. PW18/D. All the said injuries were sufficient in the ordinary course
of nature to cause death. The postmortem report, Ex. PW18/B, the
subsequent opinion, Ex. PW18/C and the recovery of the weapon of the
offence, Ex. P-1, through the accused persons, when appreciated
together, establishes the case of the prosecution to prove beyond
reasonable doubt that deceased Ranjeet was murdered by the accused
persons. The presence of the injuries upon the body of the deceased,
coupled with the recovery of the weapon and the subsequent opinion as
to the weapon of the offence has enabled the prosecution to discharge its
burden.
16. The accused persons were correctly identified by the prosecution
witnesses and the fact that the star ocular witness, PW6 Abhijit Pandit
turned hostile, has not completely thrown the case of the prosecution
over board. The identity of the accused persons and that they were
residing in the same room alongwith the deceased, wherein the body of
the deceased was found, when appreciated with the other material on Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:31:38
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record i.e. the medical evidence, the recovered weapon of the offence at
the instance of the accused persons, has enabled the prosecution to cross
the threshold of taking the entire case beyond reasonable doubt that the
deceased Ranjeet had succumbed to his injuries, inflicted upon him by
the accused persons, who were intoxicated at that time and had suspected
the deceased to have stolen Rs. 50,000/- belonging to the accused
Subhash Jana. The gruesome nature of the assault committed upon the
deceased can be gauged from the sheer number of injuries found upon
the body of the deceased with a hard blunt wooden object and the ordeal
he had to go through on the fateful night of 04/05.06.2017.
Submission made on behalf of the Accused Persons:
17. It is submitted by the Ld. Counsel for the accused persons that the
prosecution had cited and produced 20 witnesses to prove its case. Out of
the said 20 witnesses, the case of the prosecution depended heavily on
the testimony of three ocular witnesses namely PW-6 Abhijit Pandit,
PW-1 Sandeep Singh and PW-2 Jaydev Bera. All the said alleged eye
witnesses had not supported the case of the prosecution and they had
turned hostile during the time of deposition before this Court. All of the
said alleged eye witnesses had categorically denied witnessing or
knowing anything about the alleged incident in question. All of them had
categorically deposed that their statements which were allegedly
recorded by the IO, were not made by them and the same were recorded
by the IO on his own. All of the them categorically denied having any
knowledge regarding the assailants or the manner of the injuries being Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:31:51
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received upon the body of the deceased.
18. It is submitted by the Ld. Counsel for the accused persons that as
per the case of the prosecution the accused persons alongwith the
deceased and the star ocular witness Abhijit Pandit and Jaydev Bera
were all residing in the house belonging to PW3 Jahangir Kabir and they
were all working in the same house for the said Jahangir Kabir. It was
also the case of the prosecution that although PW3 Jahangir Kabir was
the main employer, however, it was accused Subhash Jana who was the
contractor and the deceased was working for accused Subhash Jana after
the accused Subhash Jana had undertaken to produce the artificial
jewelry articles for Jahangir Kabir. This entire story of the prosecution
fell flat on its face, when PW3 Jahangir Kabir had turned hostile and had
categorically deposed that the said house was not owned by him and
accused Subhash Jana was not working as a contractor or that the
deceased was working for accused Subhash Jana.
19. It is submitted by the Ld. Counsel for the accused persons that the
recovery of the alleged weapon of the offence is also full of inherent
inconsistencies and the IO had sought to show the discovery of the fact
regarding the weapon of the offence, simultaneously through the
disclosure and pointing out memo of both the accused persons, which is
not permissible u/s 27 of Indian Evidence Act, 1872. Furthermore, the
place from where the said recovery was shown, was not secured by the
IO and it was within the public access, between the intervening night of
04/05.06.2017 and 06.06.2017, when the said wooden brush was Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
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+0530
allegedly recovered from the bathroom.
20. It is submitted by the Ld. Counsel for the accused persons that there
has been unexplained and inordinate delay of over two days in getting
the postmortem of the deceased conducted, since the DD No. 44-B was
registered at the PS at 01:30 PM on 05.06.2017, however, it was only on
07.06.2017, that the postmortem was finally conducted.
Case Laws:
21. In the background of the above, I shall now discuss the evidence
brought on record in the present case. It is trite law that the accused
persons can be convicted on the basis of credible evidence brought on
record and the appreciation of the said evidence must be done in correct
and true perspective manner and in the natural course of events, what
would have been occurred. Appreciation of evidence beyond reasonable
doubt does not mean that it should be assessed beyond any iota of doubt.
Beyond Reasonable Doubt means that the prosecution is required to
place evidence at a higher degree of preponderance of probabilities
compared to what is degree of preponderance of probability in civil
cases. The theory of Beyond Reasonable Doubt means expecting higher
degree of preponderance of probabilities and the natural conduct of
human beings, as held by the Hon’ble High Court of Karnataka in “State
of Karnataka Vs Venkatesh @ Venkappa & Anr” , Criminal Appeal No.
100492 of 2021, decided on 18.12.2023.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:02
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22. Section 3 of the Indian Evidence Act defines “evidence”. The
evidence can be broadly divided into oral and documentary. “Evidence”
under the Act can be said to include the means, factor or material,
lending a degree of probability through a logical inference to the
existence of a fact. It is an adjective law highlighting and aiding the
substantive law. Thus, it is neither wholly procedural nor substantive,
though trappings of both could be felt.
23. The definition of the word “proved” though gives an impression of
a mere interpretation, in effect, is the heart and soul of the entire Act.
This clause, consciously speaks of proving a fact by considering the
“matters before it”. The importance is attached to the degree of
probability in proving a fact through the consideration of the matters
before the court. What is required for a court to decipher is the existence
of a fact and its proof by a degree of probability, through a logical
inference.
24. Matters are necessary, concomitant material factors to prove a fact.
All “evidence” would be “matters” but not vice versa. In other words,
matters could be termed as a genus of which evidence would be a
species. Matters also adds strength to the evidence giving adequate
ammunition in the Court’s sojourn in deciphering the truth. Thus, the
definition of “matters” is exhaustive, and therefore, much wider than that
of “evidence”. However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when it is
barred in law. Matters are required for a court to believe in the existence Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:21
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of a fact.
25. Matters, do give more discretion and flexibility to the court in
deciding the existence of a fact. They also include all the classification of
evidence such as circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence,
presumptive evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc.
26. In addition, they supplement the evidence in proving the existence
of a fact by enhancing the degree of probability. As an exhaustive
interpretation has to be given to the word “matter”, and for that purpose,
the definition of the expression of the words “means and includes”,
meant to be applied for evidence, has to be imported to that of a “matter”
as well. Thus, a matter might include such of those which do not fall
within the definition of Section 3, in the absence of any express bar.
27. What is important for the court is the conclusion on the basis of
existence of a fact by analyzing the matters before it on the degree of
probability. The entire enactment is meant to facilitate the court to come
to an appropriate conclusion in proving a fact. There are two methods by
which the court is expected to come to such a decision. The court can
come to a conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This belief of
the court is based upon the assessment of the matters before it. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:26
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Alternatively, the court can consider the said existence as probable from
the perspective of a prudent man who might act on the supposition that it
exists. The question as to the choice of the options is best left to the court
to decide. The said decision might impinge upon the quality of the
matters before it.
28. The word “prudent” has not been defined under the Act. When the
court wants to consider the second part of the definition clause instead of
believing the existence of a fact by itself, it is expected to take the role of
a prudent man. Such a prudent man has to be understood from the point
of view of a common man. Therefore, a judge has to transform into a
prudent man and assess the existence of a fact after considering the
matters through that lens instead of a judge. It is only after undertaking
the said exercise can he resume his role as a judge to proceed further in
the case.
29. The aforesaid provision also indicates that the court is concerned
with the existence of a fact both in issue and relevant, as against a whole
testimony. Thus, the concentration is on the proof of a fact for which a
witness is required. Therefore, a court can appreciate and accept the
testimony of a witness on a particular issue while rejecting it on others
since it focuses on an issue of fact to be proved. However, the evidence
of a witness as whole is a matter for the court to decide on the
probability of proving a fact which is inclusive of the credibility of the
witness. Whether an issue is concluded or not is also a court’s domain.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:31
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30. While appreciating the evidence as aforesaid along with the matters
attached to it, evidence can be divided into three categories broadly
namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly
reliable nor wholly unreliable. If evidence, along with matters
surrounding it, makes the court believe it is wholly reliable qua an issue,
it can decide its existence on a degree of probability. Similar is the case
where evidence is not believable. When evidence produced is neither
wholly reliable nor wholly unreliable, it might require corroboration, and
in such a case, court can also take note of the contradictions available in
other matters. The aforesaid principle of law has been enunciated in the
authority of Hon’ble Supreme Court of India in “Vadivelu Thevar v.
State of Madras“, 1957 SCR 981 wherein it is held as under:
“In view of these considerations, we have no hesitation in holding
that the contention that in a murder case, the court should insist
upon plurality of witnesses, is much too broadly stated. Section 134
of the Indian Evidence Act has categorically laid it down that “no
particular number of witnesses shall in any case, be required for the
proof of any fact”. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons, that it shall
not be necessary for proof or disproof of a fact to call any particular
number of witnesses. In England, both before and after the passing
of the Indian Evidence Act, 1872, there have been a number of
statutes as set out in Sarkar’s Law of Evidence — 9th Edn., at pp.
1100 and 1101, forbidding convictions on the testimony of a single
witness. The Indian Legislature has not insisted on laying down any Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:36
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such exceptions to the general rule recognized in s.134 quoted
above. The section enshrines the well-recognized maxim that
“Evidence has to be weighed and not counted”. Our Legislature has
given statutory recognition to the fact that administration of justice
may be hampered if a particular number of witnesses were to be
insisted upon. It is not seldom that a crime has been committed in
the presence of only one witness, leaving aside those cases which
are not of uncommon occurrence, where determination of guilt
depends entirely on circumstantial evidence. If the Legislature were
to insist upon plurality of witnesses, cases where the testimony of a
single witness only could be available in proof of the crime, would
go unpunished. It is here that the discretion of the presiding judge
comes into play. The matter thus must depend upon the
circumstances of each case and the quality of the evidence of the
single witness whose testimony has to be either accepted or
rejected. If such a testimony is found by the court to be entirely
reliable, there is no legal impediment to the conviction of the
accused person on such proof. Even as the guilt of an accused
person may be proved by the testimony of a single witness, the
innocence of an accused person may be established on the
testimony of a single witness, even though a considerable number
of witnesses may be forthcoming to testify to the truth of the case
for the prosecution. Hence, in our opinion, it is a sound and well-
established rule of law that the court is concerned with the quality
and not with the quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral testimony in this context Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:41
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may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in
coming to its conclusion either way — it may convict or may
acquit on the testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness, incompetence or
subornation. In the second category, the court, equally has no
difficulty in coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct
or circumstantial. There is another danger in insisting on plurality
of witnesses. Irrespective of the quality of the oral evidence of a
single witness, if courts were to insist on plurality of witnesses in
proof of any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where only a single
person is available to give evidence in support of a disputed fact.
The court naturally has to weigh carefully such a testimony and if
it is satisfied that the evidence is reliable and free from all taints
which tend to render oral testimony open to suspicion, it becomes
its duty to act upon such testimony. The law reports contain many
precedents where the court had to depend and act upon the
testimony of a single witness in support of the prosecution. There
are exceptions to this rule, for example, in cases of sexual Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:32:47
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offences or of the testimony of an approver; both these are cases
in which the oral testimony is, by its very nature, suspect, being
that of a participator in crime. But, where there are no such
exceptional reasons operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a single witness is
entirely reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only reliable
evidence in support of the prosecution.”
Appreciation of Evidence:
31. In the background of the abovesaid decisions, I shall now appraise
the evidence brought on record. In the present case, the prosecution has
been able to prove beyond reasonable doubt that through the testimony
of PW 18 Dr. Vishwajeet Singh, that the injured patient Ranjeet had died
around two days prior to the postmortem being conducted on
07.06.2017. The deceased had received 11 antemortem injuries and the
cause of death was shock as a result of antemortem head injury produced
by blunt force impact and all the injuries suffered by the deceased
Ranjeet were antemortem in nature and the said injuries as mentioned in
postmortem report, Ex. PW18/B from serial no. 1-11 were all produced
by blunt force impact. Therefore, the prosecution has been able to prove,
the death of the deceased Ranjeet, as well as the injuries received by
him upon his person and also the opinion of the doctor who had
conducted his Post-Mortem. Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:05
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32. Coming to the testimony of the alleged ocular witnesses, their entire
deposition is not coming to the aid of the prosecution. All the alleged eye
witnesses namely PW-6 Abhijit Pandit, PW-1 Sandeep Singh and PW-2
Jaydev Bera have all turned hostile before this Court. They had all
categorically deposed that they had not seen the alleged incident,
wherein, the accused persons had given injuries upon the body of the
deceased with the wooden brush, as alleged by the prosecution.
33. The prosecution could not prove its version that the deceased
Ranjeet was working as a labour for accused Subhash Jana, who was
allegedly working as a contractor for one Jahangir Kabir or that the
accused persons and the deceased were all working and residing in the
building owned by the said Jahangir Kabir. When Jahangir Kabir entered
into the witness box as PW-3, he had not supported the case of the
prosecution and he had categorically deposed that the said building in
which the dead body of the deceased was found, did not belong to him
and the same was taken on rent by him. He had categorically denied the
suggestions that the deceased Ranjeet was working as a labour for
accused Subhash Jana or accused Subhash Jana was working as a
contractor, for him.
34. The most important star witness of the case of the prosecution was
PW-6 Abhijit Pandit. During the investigation, the statement, Ex. PW6/A
of the said eye witness was recorded before the Ld. MM. However, when
he stepped into the witness box before this Court, he had completely
turned hostile and had categorically deposed that “Police asked me if I
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:12
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had seen anything. I told them I had seen nothing. Thereafter they beat
me. They threatened me that if I have to save myself, I should say
whatever they told me. After that they let me off and told me that he
would take me to the Court. Police tutored me and told me to say exactly
to the Court and also asked me not to disclose about my beating to the
Court. Thereafter I was taken to Court of Magistrate where my statement
was recorded on 09.06.2017. I told the Court everything as instructed by
the police.” He had further voluntarily deposed after the contents of the
statement, Ex. PW6/A was read over to him by the Ld. Addl. PP for the
State, that “However, I had stated all these facts in statement Ex. PW6/A
on instructions of the IO and under compulsion.” He had further
categorically deposed that the police officials never recorded any
statement of his and when his statement allegedly recorded by the IO u/s
161 Cr.PC, Mark PW6/B was read over to him, he had categorically
denied making any such statement. He had denied each and every
suggestion being put to him by the Ld. Addl. PP for the State. Therefore,
the testimony of PW6 Abhijit Pandit had struck a fatal blow upon the
case of the prosecution.
35. Since the ocular witnesses had not supported the case of the
prosecution, the only other incriminating evidence which is left to be
appreciated, is the alleged recovery of the weapon of the offence i.e. the
wooden brush, Ex. P-1 (also exhibited as Ex. PX-1), at the instance of
the accused persons.
36. As far as the recovery of the said wooden brush is concerned, it is
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:17
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pertinent to mention here that as per the case of the prosecution, the
alleged incident took place during the intervening night of
04.06.2017/05.06.2017. The dead body of the deceased was discovered
on 05.06.2017 and the DD No. 44-B regarding the same was registered
at PS Bhajanpura at 01:30 PM. As per the testimony of the IO, PW20
Inspector Rajeev Ranjan, the investigation of the case was marked to
him by SHO concerned at about 08:00 PM on 05.06.2017. After that he
alongwith PW-12 Ct. Praveen went to the spot and met the earlier IO
PW-10 ASI Narender. He had inspected the spot and prepared the site
plan at the instance of the 1st IO ASI Narender and in the said site plan,
Ex. PW10/B, the attached washroom is shown at point B, however, no
description has been mentioned in the site plan as to what was found at
point B, as mentioned in the said site plan. In the site plan, there is only
one note appended that at point A, the dead body was found lying and no
description of why point B was marked, is being mentioned by the IO.
37. It had further come in the testimony of IO PW20 Inspector Rajeev
Ranjan, PW12 Ct. Praveen, PW7 Ct. Yogender and PW10 ASI Narender
that the 1st IO PW10 ASI Narender had already called the Crime Team
on the scene and the said crime team had reached the spot, prior to the
IO PW20 Inspector Rajeev Ranjan reaching there. As per the categorical
testimony of PW20, IO Inspector Rajeev Ranjan, he had obtained the
crime team report and photographs of the spot taken by the crime team
expert photographer. However, he had categorically deposed during his
examination-in-chief conducted on 12.04.2023, that although the
photographs taken by the photographer were placed on record and Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:41
+0530
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exhibited as Ex.PW17/A (colly) (21 in number), however, there was no
crime team report that was placed on record by him. The said fact raises
suspicion on the entire investigation, as to why such an important
document live the crime team inspection report was withheld by the IO
and same was not filed alongwith the chargesheet. The matter is further
accentuated with the fact that in the prosecution list of witness, the name
of the crime team in-charge had also been conspicuously omitted by the
IO.
38. Through the testimony of PW17 HC Sudhir Kumar, the said 21
photographs which were clicked by him during the visit of the crime
team, were brought on record as Ex. PW17/A (colly), however, upon
careful perusal of the said photographs, it is clear that none of the said 21
photographs pertains to the attached bathroom, from where the alleged
weapon of offence i.e. the wooden brush was later shown to have been
recovered through the accused persons.
39. It is trite law, that the disclosure statement of the accused person is
not a substantive piece of evidence and the same has no value in the eyes
of law, except for the discovery of any new fact, which was not within
the knowledge of the investigating agency, prior to making the said
statement and distinctively the said new fact must lead to discovery of
the material evidence. The remaining statement of the accused persons
must be eschewed and confined to the dustbin. What is also important to
note that there cannot be re-discovery of same fact, through two separate
disclosure statements, of two different accused persons. Since, at the
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:46
+0530CNR No. DLNE01- 009335-2016 State Vs. Subhash Jana & Anr. FIR No.223/2017 Page no. 38/50
time of recording of the disclosure statement of the accused person,
which is later in time, the said portion of the statement which led to
discovery, does not pertain to the fact which was earlier not in the
knowledge of the IO, since the said fact had already come in the
knowledge of the IO through the disclosure statement of the accused
person, whose statement was first recorded in time. Although, any
confessional statement made to the police officer is hit by section 25 and
26 of the Indian Evidence Act, 1872 and only that part of the said
statement which leads to discovery of a new fact is admissible in view of
section 27 of Indian Evidence Act, 1872. It was held by the Hon’ble
Bombay High Court, in the year 1946 in “Pullukuri Kottaya Vs. King
Emperor“, date of decision 19.12.1946 that although section 27 of the
Indian Evidence Act, 1872 is not artistically worded, however, it seems
that the intention of the legislature was that all the objections to the
validity of that part of the statement are washed off, which leads to
discovery of the articles of the crime. It was held by the Hon’ble
Supreme Court of India in “Pandurang Kalu Patil & Anr. Vs State of
Maharashtra” (2002) 2 SCC 490 that section 27 of the Indian Evidence
Act, 1872 was merely enacted as a proviso to sections 25 and 26 and the
object of section 27 is to make admission of evidence of a fact possible,
which could have otherwise been inadmissible due to sections 24, 25 &
26 of the Indian Evidence Act, 1872.
40. It was also held in Pullukuri Kottaya (supra) that what is
contemplated by section 27 of the Indian Evidence Act, 1872, is the
discovery and the said discovery is not merely of a physical thing, Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:51
+0530
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however, the said discovery must be accompanied by a psychological
fact i.e. the knowledge of the accused that he had concealed/hidden the
object at the said place and it is his knowledge, which is the key here,
since the information must relate distinctively to it.
41. It was held by the Hon’ble Apex Court in “Mustkeem @ Sirajuddin
Vs. State of Rajasthan” (2011) 11 SCC 724 that the word “person” as
used in section 27 of the Indian Evidence Act, 1872, pertains to single
person and it has to be interpreted in a singular manner. The discovery of
a new fact must come through only one accused and more than one
accused person cannot get discovery of a new fact effected through their
separate statements, since the said fact would not remain a new fact.
Therefore, there cannot be any re-discovery from confessional statement
of the other co-accused person.
42. Applying the ratio of the aforementioned cases, as far as the
confessional statements/disclosure statements of the accused persons in
the present case is concerned, it is the case of the prosecution that the
accused persons were arrested on 06.06.2017, after the IO PW20
Inspector Rajeev Ranjan constituted a raiding team comprising of
himself, PW10 ASI Narender and PW7 Ct. Yogender, in pursuance of the
information received by them through a secret informer. The disclosure
statement of accused Subhash Jana, Ex. PW7/E and of accused Achinto
Ghosh, Ex.PW7/F were recorded by the IO on 05.06.2017 itself. Perusal
of the said disclosure statements does not reflect as to which statement
was recorded prior in time, since no time has been mentioned on the said Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:33:56
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statements, however, it may be presumed that the disclosure statement of
accused Subhash Jana must have been recorded prior in time, since as
per his arrest memo, Ex. PW7/A, the time of his arrest is mentioned as
04:05 PM and in the arrest memo of co-accused Achinto Ghosh, Ex.
PW7/B, the time has been mentioned as 04:20 PM. Therefore, bearing
that in mind, once the disclosure statement, Ex. PW7/E of accused
Subhash Jana was recorded, a new fact had come within the knowledge
of the IO that he could get recovered the wooden brush, which he had
concealed/hidden in the factory itself. Therefore, the said fact could not
lead to discovery of the said wooden brush to co-accused Achinto
Ghosh, as allegedly recorded in his disclosure statement, Ex. PW7/F.
43. Interestingly, both the accused persons in their respective disclosure
statements had categorically stated before the IO that they had
individually concealed/hidden the same brush in the factory. However, as
per the seizure memo, Ex. PW7/H the IO has shown the recovery of the
said wooden brush from one bathroom situated on the 2 nd floor of H. No.
A-30, Gali No.5, Bhajanpura, through both the accused persons
simultaneously and they had both allegedly stated before the IO that they
had given injuries upon the body of the deceased with the same brush,
after taking turns with it. It is also pertinent to note here that the
discovery of the said wooden brush was from a bathroom and not from
the factory, as stated in the disclosure statements. Therefore, there is a
material discrepancy regarding the exact place where the brush was
allegedly placed/hidden after the incident in question.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:01
+0530
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44. Since, the disclosure statement of accused Subhash Jana had already
disclosed regarding the fact of the weapon of the offence being allegedly
hidden by him, therefore, the entire disclosure statement of co-accused
Achinto Ghosh is now hit with sections 25 and 26 of the Indian Evidence
Act, 1872 and the same vanishes from the ken of evidence.
45. Keeping aside the repetitive disclosure statements and the joint
statement made during the recovery memo, Ex. PW7/H, the entire
recovery proceedings are tainted with suspicion. It had categorically
come during the cross examination of the main IO, PW20 Inspector
Rajeev Ranjan that on 05.06.2017, he had reached the spot at about
08:30 PM and he remained there for about 2-3 hours. At that time, there
were 4-5 other police officials present with him and prior to leaving the
spot, he had left the beat officer PW12 Ct. Praveen at the spot. He had
further deposed in the voluntarily part that he got the said flat locked,
prior to leaving from there. However, it was not stated anywhere in the
statement of the said Ct. Praveen, that he was guarding the spot after the
IO had left from there or that the said flat was got locked by the IO.
When Ct. Praveen entered into the witness box as PW-12, he had merely
deposed that he was left for the safety of the spot, at the time when 1 st IO
ASI Narender and Ct. Yogender had taken the dead body of the deceased
to GTB Hospital. He had no where deposed about him being deputed on
the safety duties of the spot, after the main IO Inspector Rajeev Ranjan
left the spot on 05.06.2017 or that the said flat was locked. It was further
categorically admitted by PW20 IO Inspector Rajeev Ranjan during his
cross examination that it was correct that he had not mentioned in any of Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:06
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his proceedings in the present case, that Ct. Praveen was left at the spot
to guard the same.
46. It was further categorically admitted by PW20 IO Inspector Rajeev
Ranjan during his cross examination that he did not remember as to who
had kept the key of the locked flat or that the said flat was locked in his
presence or thereafter. He further went on to depose that on the next day
i.e. 06.06.2017 at around 04:00-05:00 PM he alongwith the accused
persons, ASI Narender, Ct. Yogesh and other police officers had gone to
the said flat and they remained there for around 1-2 hours. He had
categorically deposed that “When we reached on 06.06.2017, the flat
was already opened, as we had already informed the owner of the flat as
well as to the beat officer that we are about to reach. When we reached
there owner namely Jahangir and beat Constable were already present
there.”
47. It has also come in the cross examination of PW20 IO Inspector
Rajeev Ranjan that earlier on 05.06.2017, when he reached the spot,
crime team was already present there and the bathroom was attached to
the room, where the dead body was found. He further categorically
deposed that they had done the cursory search of the entire 2 nd floor on
05.06.2017. However, he had immediately changed his stand and went
on to depose that they had only searched the room, where the dead body
was recovered. He went on to further categorically depose that “We had
searched on 05.06.2017 but no weapon of offence was found but before
us the crime team had carried out the search.” Therefore, it is clear from Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:11
+0530
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his testimony that no weapon of the offence was found during the search
conducted by the crime team or by the IO, since he had further
categorically admitted the suggestion that no weapon of the offence was
handed over to him by the crime team, in spite of the fact that bathroom
was not locked, from where the weapon was allegedly later recovered
through accused persons.
48. It was further categorically admitted by PW20 IO Inspector Rajeev
Ranjan during his cross examination that there was only one bathroom
and one toilet on the entire 2nd floor of the said house, where the dead
body was recovered and he went on to further depose that there were
four persons residing at the 2nd floor, out of which one was the deceased,
two were the accused persons and the fourth person was the ocular
witness Abhijit Pandit. Therefore, even other public person was having
access to the said place i.e. the bathroom from where the alleged
recovery was made.
49. It was further categorically admitted by PW20 IO Inspector Rajeev
Ranjan during his cross examination that as per his knowledge there
were persons residing on the ground floor and the 1 st floor of the said
house, however, no factory was being run on the said floors and there
was only one factory which was being run on the 2nd floor. He further
deposed that he did not remember whether there were any locks on the
staircases leading to the 1st floor and the 2nd floor and he did not even
remember as to whether the said locks were placed on 05.06.2017 and
06.06.2017, when he had visited the said 2nd floor. Therefore, it cannot be Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:16
+0530
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ruled out that the said bathroom and room were accessible to other
members of the public and since it could not be established by the
prosecution that in between the discovery of the dead body and the
alleged recovery of the wooden brush, Ex. P-1 (also exhibited as Ex.
PX-1), the said place i.e. the bathroom was secured by the IO and that
there was no access to the said place to anyone from the public,
therefore, the entire recovery proceedings are not coming to the aid of
the case of the prosecution.
50. The said wooden brush, Ex. P-1 (also exhibited as Ex. PX-1), was
never sent to FSL by the IO and no explanation had come forward from
the prosecution as to why the said brush was not sent, in spite of the fact
that it was one of the most crucial links of the prosecution story. The IO
chose to get the subsequent opinion from the concerned doctor who had
conducted the postmortem of the deceased, however, the said brush was
not sent for forensic examination, for reasons best known to the IO.
51. In the present case, the prosecution has been able to merely prove
the death of the deceased Ranjeet. As per the case of the prosecution,
there were no less than 3 ocular public witnesses, who had albeit
completely gone hostile and had not supported the case of the
prosecution. Therefore, the accused persons cannot be convicted for the
offences in question. Suspicion, however, grave, cannot take place of
proof.
52. In a case based on circumstantial evidence, the settled law is that Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:37
+0530
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the circumstantial from which the conclusion of guilt is drawn should be
fully proved and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and there should be
no gap left in the chain of evidence. Further, the proved circumstances
must be consistent only with the hypothesis of the guilt of the accused
and totally inconsistent with his innocence, as held by the Hon’ble
Supreme Court of India in “Hanuman Govind Nargundkar Vs. State of
MP ” AIR 1952 SC 343, “Bodh Raj Vs. State of J&K” AIR 2002 SC
3164 and “Sharad Birdhichand Sarda Vs. State of Maharashtra” AIR
1984 SC 1622 and “C. Chenga Reddy and Ors. Vs. State of A.P.”
(1996) 10 SCC 193.
53. It is also settled law that accused has to only proboblize the defense
and he is presumed to be innocent till he is proved to be guilty.
Suspicion, however, strong can never take place of proof. There is
indeed a long distance between accused “May have committed the
offence” and “Must have committed the offence”, which must be
traversed by the prosecution by adducing reliable evidence. Emphasis is
supplied on the decision of the Hon’ble Supreme Court of India in
“Kailash Gaur Vs. State of Assam” (2012) 2 SCC 34 and “Padala Veera
Reddy Vs. State of Andhra Pradesh” AIR 1990 SC 79.
54. There is another golden thread which runs through the web of
administration of justice in criminal cases, is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
Digitally
the accused and other to his innocence, the view which is favourable to ATUL signed by
ATUL
AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:43
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the accused should be adopted, as held by the Hon’ble Supreme Court of
India in “Kali Ram Vs. State of Himanchal Pradesh” AIR 1973 SC 2773.
Conclusion & Findings:
55. The fact that all the alleged ocular witnesses and other public
witness had completely turned hostile and the inherent contradictions in
the testimony of the other prosecution witnesses had certainly raised
doubts in the mind of the Court and the effort of the Criminal Court is
not to be prowl for imaginative doubts, unless is doubt is of a reasonable
dimension and is what judicially conscientious mind entertains with
some objectivity, otherwise no benefit can be claimed by the accused. In
the present case the doubts raised from the testimony of the prosecution
witnesses cannot be set to be merely imaginative and the same has been
borne from the record of the present case. The said doubts are not merely
imaginary or trivial in nature and it has dented the entire case of the
prosecution. The burden of proof cast upon the accused persons is
governed by the principle of ” preponderance of probabilities” and in
light of the discussion above, the accused persons in the present case
have been able to raise reasonable doubts against the prosecution version
of events and the hypothesis as propounded by the accused persons that
they have been falsely implicated in the present case, since the police
officials instead of looking out for the real culprit, had merely implicated
the accused persons, since they were working together with deceased
prior to his death. With the evidence brought on record, it cannot be said
Digitally
that the chain of prosecution witnesses and the evidence brought on ATUL
signed by
ATUL
AHLAWAT
AHLAWAT Date:
2025.01.29
11:34:48
+0530
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record was so complete, so as to not leave any reasonable ground
consistent with the innocence of the accused person.
56. When the entire evidence of the present case is cumulatively read
and appreciated in the background of the settled principle of law and in
the light of the evidence adduced by the prosecution, firstly, since the
star prosecution witness, PW6 Abhijit Pandit and other ocular witnesses
PW1 Sandeep Singh and PW2 Jaydev Bera have not supported the case
of the prosecution and had completely turned hostile; secondly, the
another crucial prosecution witness, PW3 Jahangir Kabir had also not
supported the case of the prosecution to establish that he was the
landlord and the employer of both the accused persons and the deceased
or that the accused Subhash Jana was the contractor and the deceased
was working for accused Subhash Jana; thirdly, serious lapse in the
investigation, wherein the Crime Team Report was never filed alongwith
the chargesheet, nor was the Crime Team In-charge made a prosecution
witness; fourthly, the attempt on the part of the IO to show the discovery
of the new fact through both the accused persons and the said alleged
recovery being shown through both of them through a common seizure
memo; fifthly, the prosecution not discharging the burden that prior to
the said alleged recovery of the murder weapon, the place of recovery
was secured/guarded and that there was no access to public in the said
place; sixthly, the murder weapon was not sent for forensic examination
and; lastly, since there is no ocular witness testimony or circumstantial
evidence to link the accused persons with the offence in question, except
Digitally
for their disclosure statements, which are themselves inadmissible in law ATUL signed by
ATUL
AHLAWAT
AHLAWAT Date:
2025.01.29
11:35:00
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and the alleged recovery of the weapon being tainted, therefore, the
testimony of only the formal witnesses is not enough to bring the guilt of
the accused persons home for the prosecution. There is a serious shadow
of doubt cast upon the entire prosecution’s story and the same is not
worthy of inspiring any confidence. Hence, they strike at the very root of
the prosecution story rendering it to be improbable and unbelievable.
Therefore, in the opinion of this Court, there is no doubt that the
prosecution has miserably failed to prove its case beyond reasonable
doubt and hence, accused Subhash Jana S/o Late Sh. Arvind Jana and
accused Achinto Ghosh S/o Sh. Kani Lal Ghosh are acquitted of the
charges for committing the offences punishable u/s 302/34 Indian Penal
Code, 1860 and they shall be set at liberty.
57. The accused persons have already filed their bail bonds u/s 437A
Cr.PC and the same shall remain in force for a period of six months from
today. All the other bail bonds/surety bonds stands canceled and the
earlier surety except for surety given u/s 437A Cr.PC stands discharged.
58. The case property, if any, be released to the rightful owner as per the
law and the applicable rules.
59. File be consigned to the record room after due compliance.
Digitally
signed by
ATUL
Announced in the open court on 29.01.2025. ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:35:05
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This judgment consists of 50 pages and all
of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.01.29
11:35:10
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/29.01.2025
CNR No. DLNE01- 009335-2016 State Vs. Subhash Jana & Anr. FIR No.223/2017 Page no. 50/50