Prahlad vs State

Dr. S. Muralidhar, J

These appeals are directed against the impugned judgment dated 20th July 2017 passed by the learned Additional Sessions Judge-05 West, Delhi

(“ASJâ€) in Sessions Case No. 56739 of 2016 arising out of FIR No. 477 of 2013 registered at Police Station (PS) Khyala convicting the

Appellants, Prahlad and Devanand @ Deva, for the offence under Sections 302 read with Section 34 IPC and the order on sentence dated 31st July

2017 whereby both the Appellants were sentenced to undergo rigorous imprisonment (RI) for life and to pay a fine of Rs. 10,000 each and in default

of payment of fine, to undergo further simple imprisonment (SI) for one year each. The trial Court also declined to extend the benefit of Section 428

CrPC for both the offences.

Case of the prosecution

The prosecution case begins with Dharam Pal (PW-4) who was working as chowkidar (watchman) at Chameli Park, Raghubir Nagar, Delhi on a

shift from 5 pm to 9 am, stating to the police at PS Khyala that at around 7 am on 19th November 2013, when he was taking a round inside the

Chameli Park he noticed the dead body of a young boy aged about 20 years on the side of the wall near Ambedkar market.

On this basis DD No. 14A was recorded at PS Khyala and handed over to Sub Inspector (SI) Nafe Singh (PW-21). Accompanied by Constable

(Ct.) Subhash Chand (PW-17) and PW-4, PW-21 proceeded to the spot. Statement of PW-4 was recorded by Head Constable (HC) Amit Kumar

(PW-8). Station House Officer (SHO) Inspector Tanvir Ashraf (PW-23) was informed of the above happening by PW-8. Thereafter PW-23 along

with Ct. Praveen Kumar left for the spot.

PW-23 along with PW-21 and PW-17 found that a dead male body was lying in Chameli Park at a spot where the boundary wall of the park was

broken. The dead person was aged about 20-22 years. The head of the deceased was lying towards the west side and his feet were towards the east.

The head was found partly crushed. PW-23 noticed that one blood stained pentagonal slab was lying by the side of the deceased. One blood stained

blue shirt was also lying near the body. The pants worn by the deceased had slipped down to his knees. A crime team was called at the spot and a

photographer from the crime team clicked the photographs from different angles.

Even while PW-23 was trying to get the dead body identified, Mangti Devi (PW-3), grandmother of the deceased came to the spot and identified

the dead body to be that of her grandson Cheeku. PW-23 then prepared the rukka and sent it for registration of FIR to the PS Khyala. A blood stained

pentagonal slab, blood stained blue colour shirt of the deceased, blood sample from the blood lying on the spot on gauze, and blood soaked earth control

were seized from the spot along with earth control for sample which was also kept in the plastic box. PW-23 prepared the rough site plan (Ex.PW-

23/B) at the instance of PW-3. The dead body of the deceased was then sent to the mortuary through PW-21.

Statement of PW-3

PW-23 recorded the statement of PW-3 under Section 161 Cr PC on 19th November 2013. She stated that she used to sell old clothes. The

deceased, her grandson, was doing the same work. He was residing with his parents in Kishan Garh, Rajasthan, and would travel back to his home in

the evening after selling old clothes at Ghorewala Mandir, Delhi. On 18th/19th November 2013 the deceased had come to Raghubir Nagar Mandi for

selling old clothes.

According to PW-3, whenever her grandson came to Delhi, he used to sleep on a bundle of old clothes. Accordingly, on the night prior to the fateful

day, he had slept near the Ghorewala Mandir. PW-3 stated that she was going towards the clothes market near Ghorewala Mandir on 19th November

2013 at around 5 a.m. when she noticed the present Appellants, Prahlad, Accused No. 1 (A-1) and Devanand (A-2) (who also sold old clothes and

who she recognised from before) sitting in a rickshaw with Cheeku being forcibly made to sit between them. She had doubts and she started following

the rickshaw. According to PW-3, when she reached Chameli park she noticed that the accused had dragged the deceased into the park through a

broken portion of the wall and began to beat him, A-1 with a big stone and A-2 with a danda (wooden stick). As a result of the blows by the silli

(slab), blood spurted out of the deceasedâ€s head and smeared the accused. PW-3 claimed that when a scream escaped her throat both accused saw

her and she became frightened and ran away from there. After she regained control of herself she went back to Chameli Park at around 8 am when

she noticed that the police had already reached there. She noticed the dead body of her grandson hear the wall. She was so frightened that she was

rendered speechless. She then identified her grandsonâ€s body and gave an account of what happened to the IO. ON that basis the rukka was

prepared and sent to the PS for registration of the FIR. Thereafter, police officials along with PW-3 started searching for the accused in the vicinity.

The SHO also recorded the statement of Tara (PW-6), sister of the deceased. She stated that she and her elder brother (deceased) used to come

to Delhi to sell old clothes. At that time she used to reside with her grandmother (PW-3) at Raghubir Nagar. According to PW-6, on 18th November

2013 at about 10 pm she was present near Ghorewala Mandir when Prahlad (A-1) came there and asked her where Cheeku was. According to PW-

6, after she told him that the deceased had gone to relieve himself, Prahlad sought to volunteer that her brother (the deceased) had stolen Rs. 4,000

belonging to him and that he would kill the deceased. According to PW-6, she did not take this threat seriously and remained busy with her work. She

came to know on 19th November 2013 that the accused had murdered her brother in Chameli Park.

Arrest of the accused

Both the Appellants were arrested on the day of the incident itself at around 4 pm from the parking of Guru Gobind Singh hospital on being

identified by PW-3. Pursuant to their arrest, their personal search was conducted and disclosure statements were recorded. Blood stains were found

on both their pants at the time of their arrest. They were seized and converted into separate cloth parcels. A-2 got recovered one danda from a place

near Chameli Park. These were sealed and deposited in the malkhana.

On 20th November 2013 the dead body of the deceased was identified at the mortuary by his father, Kalu (PW-7) and his uncle, Kamal (PW-18).

The clothes of the deceased, blood in gauze, blood samples were taken into possession.

Post mortem

The post-mortem was performed by Dr. Komal Singh (PW-9) between 11.45 am and 12.45 pm on 20th November 2013 at the DDU Hospital,

Delhi. The DDU Hospital report (Ex.PW-9/A) reveals the following external injuries:

“1. Incised wound of six 6 cm x 8 cm present behind right ear over right temporal bone with bevelled margins (starting 4 cm above right mastoid

going towards posterior aspect of neck) underneath bone of the base of wound is depressed.

Cut through and through present over right pinna with exposed cartilage.â€​

The internal examination of the head revealed the following:

“Head

A. Scalp: Clotted blood present of about 20 ml present over parieto-temporal region.

B. Skull: Depressed fractured of the right temporal bone.

C. Brain, Meninges & Vessels: Haemorrhagic contusions over right parieto-temporal lobe of the brain.

D. Base of skull: Intact.â€​

The time since death was stated to be approximately 32 hours prior to post-mortem examination. The cause of death was opined to be “cranio

cerebral injury (head injury) caused by direct blunt impact over the skull and the injuries were sufficient to cause death in ordinary course of nature.â€

The death was confirmed to be homicidal.

Charge sheet

On completion of the investigation, the charge sheet was filed. The case made out by the prosecution was that in the intervening night on 17/18th

November 2013 Prahlad had slept near the old clothes market at Ghorewala Mandir and when he woke up he noticed that Rs.4,000 that he had had

with him had been stolen. He learnt that there were Rs.1000 notes with the deceased (Cheeku) and he began to suspect that Cheeku had stolen his

money. This was disclosed by A-1 to his friend Devanand (A-2). In a drunken state, both of them searched for Cheeku but at that time they could not

find him. They then informed the deceasedâ€s sister Tara (PW-6) that he had stolen Rs. 4,000 and they would not spare him alive. The next morning

at around 5 to 5.30 a.m. Cheeku met both of them at Ghorewala Mandir. However, he denied having stolen the money. Both of them in anger then

dragged him to Chameli Park to settle the accounts in a rickshaw by making him forcibly sit between them. Even there when they asked the deceased

about the money, he did not admit to having A-1â€s money. Upon this, A-2 picked up a danda which was lying there and started beating Cheeku with

it. Thereafter, both of them dragged the deceased into the park through a broken portion of the wall. A-1 took a big sharp stone with a view to beating

Cheeku with it and hit him on the head several times. This was noticed by Cheekuâ€s grandmother (PW-3). When the accused saw that blood had

spurted out from the deceasedâ€​s head copiously and he was gravely injured, they got scared and ran away from the spot.

Trial

The charges were framed against both accused for the offence under Section 302 IPC read with section 34 IPC. The prosecution examined 23

witnesses.

In their respective statements under Section 313 Cr PC both the Appellants claimed innocence. They stated that PW-6 was a planted and an

interested witness. They denied being arrested from the parking area of Guru Gobind Hospital. While A-1 stated that he was apprehended from his

house, A-2 stated “my mother herself got me arrested due to my habit of heavy drinking.†A-2 also denied that Ex.P-3 was not his pants and the

seizure memo in respect thereof was false and fabricated. He stated that “blood had been planted upon the same to falsely implicate me in this

case.†He further denied recovery of the danda and stated that that too has falsely been shown to have been recovered at his instance. Likewise A-

1 also stated that the other weapons were planted. In response to the question that through the blood sample of the deceased drawn from the place of

incident, the DNA Finger Print was found matching with the blood stains found on his pants as well as the pants of the co-accused, both of them

stated that the blood was sprinkled over their clothes in order to falsely implicate them. When asked if they had anything further to say, A-1 pointed

out that there was no motive to kill the deceased; testimony of PW-3 was concocted and unimaginable, that the blood of the deceased was sprinkled

over his clothes and that he had been falsely implicated. A-2 also claimed innocence and he stated that he too had been falsely implicated.

In the present case, PW-3 was a star witness. She was supposed to have actually seen the commission of crime - both as regards the deceased

being taken away by the accused from the Ghorewala Mandi and then witnessing the assault on the deceased by the two Appellants at the Chameli

park.

Before the trial Court, it was argued on behalf of the accused that PW-3 was an elderly woman and she could not be expected to be chasing the

rickshaw for a distance of 500 metres and this was highly improbable. Further, it was pointed out that the Appellants would not remain in the vicinity

of just within 1 km from the crime scene to be easily arrested by the police from an open parking lot of the Guru Gobind Singh hospital. Further, both

of them were stated to be wearing the same blood stained shirt and pants at the time of arrest. It was expected of them to have disposed of these

incriminating pants. It was pointed out that members of the crime team could not have recorded the details of the victim as “unknown in the crime

team reportâ€​ if they had in fact proceeded to the spot and PW-3 had also arrived there in their presence.

Impugned judgment of the trial Court

In the impugned judgment, the trial Court noted certain anomalies, viz. namely, that PW-3 stated in her cross-examination that she had one

grandson Cheeku apart from whom she had another grandson and granddaughter. She denied that she knew Tara (PW-6) who claimed to be her

granddaughter. The trial Court then surmised that “Smt. Tara may be the real granddaughter of PW-3 Smt. Mangti Devi or she might be referring

to her as grandmother out of respect. As a matter of fact, she refers to the deceased as her brother and both of them used to come to Delhi for selling

old clothes. During their visit to Delhi, they used to stay at the residence of their grandmother at Raghubir Nagar. Here also, there is no reference to

any relation between the deceased and PW-5 by way of consanguinity but it becomes crystal clear on reading the testimony of PW-6 that whenever

she refers to the deceased, she refers to him as her brother which is a strong reason for this Court to accept consanguinity amongst them. It is in

evidence that the deceased was born to her (PW-3â€​s) real son i.e. PW-7 Sh. Kalu who identified the dead body. This therefore, establishes that Smt.

Tara was another granddaughter of PW-3 Smt. Mangti Devi besides the PW-5 Smt. Soni.â€​

The trial Court then discussed the evidence of Soni (PW-5) who was another granddaughter of PW-3 who stated that when PW-3 arrived at the

residence in the morning at about 6.15 am she was in “very perplexed conditionâ€. According to the trial Court, one reason for PW-3 denying that

she knew Tara “could be her old age and the lengthy cross-examination which she was subjected to.†However, the trial Court was not prepared

to discredit her entire testimony on that ground.

As regards the improvements made by PW-6 (Tara) in her statement about the presence of accused Devanand (A-2) with A-1 on the night of

18th November when A-1 had uttered threats against the deceased, the trial Court preferred to rely on the testimony of PW-5 who remained

consistent. PW- 5â€s testimony about her grandmotherâ€s condition on 19th November 2013 supplemented by that of PW-23 proved that PW-3 was

traumatised and took 1-1/2 to 2 hours to compose herself from the shock.

According to the trial Court a conjoint reading of PWs 17, 21 and 23 “proves beyond reasonable doubt that the police party was at the spot of

occurrence soon after receipt of information from PW-4 Dharampal after 7.30 am.â€​

The trial Court then went into the distance between Ghorewala Mandir and Chameli Park and reconstructed the sequence of events that unfolded.

It was noted that the distance between PW-3â€s house and Ghorewala Mandir was 500 metres, and from there to Chameli Park was another 500

metres. Hence PW-5 “covered the distance of about 1 Km to reach back to her house and reached there at about 06.15 am as per PW-5â€​.

The trial Court concluded that when PW-3 referred to her statement being recorded at 8 am, she was referring to the time when she identified the

body of the deceased. According to the trial Court, her statement under Section 161 Cr PC was recorded at 9.30 to 9.45 am by the police and this

explained the time gap. As regards PW-3 stating in her cross-examination that she narrated the fact of murder of Cheeku “to his sister Chiniâ€,

PW-3 appeared to be “confused here as the evidence strongly suggests that these facts were stated by her to PW-5 Smt. Soni.†According to the

trial Court, since the defence has not cross-examined Soni (PW-5) regarding the time at which relevant events occurred and the police had recorded

her statement, the defence could not claim the entire testimony of PW-5 to be false and that she was planted to cover the alleged delay in lodging the

FIR or to complete the chain of evidence.

According to the trial Court, the above analysis was sufficient to explain the mental condition of PW-3 at the time of the incident “which

definitely seems to have swayed her even at the time of her Court statement as she was re-living the incident while narrating the same in the Court.â€

All other anomalies in her testimony were, therefore, explained. It was held that she had been consistent in her testimony right from the beginning, i.e.,

in her statement under Section 161 CrPC, her statement under Section 164 CrPC and her statement in the Court “on the material aspects.â€​

Much of the judgment of the trial Court was taken up with showing that the inconsistencies and the improvements in the testimony of PW-3were

not serious enough to doubt her truthfulness on material aspects. Further, since the medical evidence corroborated the version of PW-3 and since

“arrest of the accused persons in the manner stated, cannot be doubted at allâ€, the trial Court proceeded to convict both the Appellants for the

offences with which they were charged.

The trial Court held that the conduct of the Appellants in hanging around the place of the incident thereafter, “does not appear to be such an

over-whelming instance of imprudent human behaviour that the benefit of it be granted to the accused persons to discredit entire prosecutionâ€s

case.†It was noticed that A-2 still smelled positive for “alcohol†when his MLC was being prepared soon after his arrest. The police witnesses

were believed as far as the arrest of the accused was concerned and the failure to associate public persons was explained as “they have provided

cogent and acceptable reasons for it.â€​ The trial Court proceeded to convict and sentence the two Appellants in the manner as indicated hereinabove.

This Court has heard the submissions of Mr. Dhruva Bhagat and Mr. Azhad Qayam, learned counsel for both the Appellants and Ms. Radhika

Kolluru, learned APP for the State.

Analysis of the evidence of PW-3

Much of the focus of learned counsel on both the sides was on the evidence of PW-3. She is stated to be an eye-witness not only to the dragging

away of the deceased by the two Appellants from the Ghorewala Mandir in a cycle rickshaw but also to their assaulting the deceased with danda and

the silli at Chameli Park.

PW-3 is the grandmother of the deceased. At the time of her deposition, she was about 75 years of age. She used to sell plastic items/utensils

against her old clothes. Her son Kalu (PW-7) along with his wife and his son (Cheeku) were residing in Kishan Garh, Rajasthan. PW-3 herself was

residing in Delhi. She disclosed that her grandson used to purchase plastic/utensils from Ghorewala Mandir, Delhi and take them to Kishan Garh,

Rajasthan where he used to sell the said plastic utensils against old clothes. He used to bring old clothes and sell them in Ghorewala Mandir and then

again he would purchase plastic utensils. In the evening he would return to Kishan Garh.

PW-3 being related to the deceased is undoubtedly an interested witness. As explained by the Supreme Court in Jayabalan v. UT of Pondicherry

(2010) 1 SCC 199 where a Court is called upon to deal with the evidence of interested witnesses, its approach must not be pedantic. ""The court must

be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The

primary endeavour of the court must be to look for consistency.

What happened in the early hours of 19th November 2013 is narrated first by PW-3 to the police in her statement under Section 161 Cr PC, which

was recorded by PW-23, the Investigating Officer (IO) Inspector Tanvir Ashraf. This has been set out in some detail in para 7 of this judgment and

need not be repeated. However, the time of recording the said statement is not known. Thereafter, the statement of PW-3 was also recorded before

the learned Metropolitan Magistrate (MM) on 12th December 2013 under Section 164 Cr PC. In this statement PW-3 stated that on 18th November

2013 Cheeku had visited her house and told her that he was leaving. She assumed that he had got utensils in return for old clothes and was taking

them back to Kishan Garh. On 19th November 2013 at around 5 am in the morning when she went towards the mandi for selling old clothes, she

noticed that two Appellants had made Cheeku sit in a rickshaw between them and were taking him somewhere. She then called out to Cheeku but he

did not reply, as a result of which she then got scared and started chasing them. The three of them had alighted outside Chameli Park. She then

noticed that both the Appellants dragged the deceased inside the park. When she reached the park she noticed A-2 was having a danda in his hand

and was beating the deceased with it. A-1 had a huge cement slab in his hand and even as she was watched, A-1 smashed the head of the deceased

with it and blood spurted out of the head of Cheeku. PW-3 then became scared and did not go forward apprehending that the two Appellants would

also pull her inside and kill her. She ran away from the spot and reached her house. She loudly shouted that Cheeku had been murdered. At that point

people in the locality gathered at her house and they all went to the PS and lodged a complaint. She stated that the accused wanted to take away her

grandsonâ€​s money since he had sold his clothes and was returning to Ajmer.

It is seen that there is an improvement between the previous statement to the police under Section 161 Cr PC and the statement made by PW-3

before the learned MM under Section 164 Cr PC. In her statement under Section 161 CrPC she does not mention that she called out to the deceased

and he did not reply. What is consistent is that she saw the two accused beating the deceased with the danda and stone in the Chameli Park. One

major difference between the two statements is what she did when she ran away from that spot. In her statement to the police, PW-3 states that she

regained her senses after having reached her home at around 8 am and had gone back to the Chameli Park where she identified the dead body of the

grandson. She stated that by this time the police officials had already reached Chameli Park. However, in her statement under Section 164 Cr PC,

PW-3 claims to have gone to the police station with other people from the locality and lodged a report. In both statements she makes no mention of

speaking to anyone when she returned home.

Now turning to her deposition in the Court PW-3 introduced another version by stating that while he was sitting between the accused in the

rickshaw, the deceased was saying “Mere Paise le lo mujhe Chameli Park mat le jaoâ€. One reason for this as rightly pointed out by learned

counsel for the Appellants is that even if PW-3 had seen the two Appellants with the deceased in the rickshaw, she could not have known where they

were taking him. Chameli Park is at a distance of at least 500 metres from Ghorewala Mandir. For a lady who was 75 years old, it would not be easy

to simply chase the rickshaw without knowing where it was headed towards. Also, if there was no exchange of words between the Appellants and

the deceased at that point in time she may not have suspected what the issue was or if there was any issue between them at all. She could not have

known why they were taking him somewhere unless those words were not spoken by the deceased. The fact that this was not mentioned either in the

statement under Section 161 Cr PC or Section 164 Cr PC makes it highly doubtful that she in fact heard such words. This is a major and material

improvement in her version which should have alerted the trial Court about the truthfulness of her version.

In the court, PW-3 further stated that she called to the deceased to stop the rickshaw but both the Appellants “asked the rickshaw puller not to

stop the rickshaw and they also asked to move fast.†This is again an improvement which is not spoken of by her in either of her two earlier

statements. For a lady of her age to be chasing a rickshaw which is speeding away is extremely unrealistic. The other improvement she made in the

Court was stating:

“The small portion of the wall of Chameli Park was lying broken from where both the accused persons took my grandson Cheeku to Chameli Park.

I saw that the pant of Cheeku was put off and buttons of shirt of Cheeku was opened.

PW-3 added in her deposition that after seeing her grandson being attacked in the park in the manner mentioned, she ran away from there and

reached her house and that “no one was present at my house†and then again “rushed to Chameli Park.†She at this stage did not mention

anything about being traumatised or there being a lapse of time before she regained her senses. PW-3 states that when she returned to Chameli Park

she found the police present there and an ambulance also present. She identified the dead body of her grandson and thereafter she became

unconscious. Thereby, she also departed from her statement under Section 164 Cr PC where she had stated that she had gone to the police station

with people from her locality to lodge a report.

In her cross-examination, PW-3 was confronted with all the above improvements. She was also confronted with not earlier stating that “I put

both my bundles on the ground and started chasing the rickshawâ€. She mentioned in her cross-examination that “I had narrated the fact of murder

of Cheeku to his sister Chini. She resides at Ghaziabad†and further that “I had stated to the police the fact that I had narrated the fact of murder

of Cheeku to his sister Chini.†Clearly at this point in time, the APP did not seek any clarification that when she mentioned “Chiniâ€, she in fact

meant Soni (PW-5) as surmised by the trial Court.

Strangely, in her cross-examination by learned counsel for A-2, PW-3 stated that she had one grandson and one granddaughter apart from the

deceased and that “I do not know Tara. I also even do not know where she resides.†This is most strange considering that Tara is none other

than the real sister of the deceased Cheeku. In fact, Tara (PW-6) in her deposition stated how she too along with Cheeku would live with their

grandmother (PW-3) during their visits to Delhi and she herself had on 18th November 2013 come along with Cheeku to Delhi for selling old clothes.

In fact she is the witness who is supposed to have been confronted by the two Appellants on the night of 18th November 2013 when the two

Appellants had conveyed that Cheeku had stolen Rs. 4,000 belonging to A-1 and that A-1 would “commit his murder.†If indeed the Appellants

had gone to the house of PW-3 to meet PW-6 there on the night of 18th November 2013, it is inexplicable that PW-3 would say “I do not know

Tara.†In her statement under Section 164 CrPC she claimed to have shouted even whilst she was at Chameli Park and saw that Cheeku had been

grievously wounded whereas in the Court she did not say so.

With there being such glaring lapses in the different statements of PW-3, it would be safe to conclude that these inconsistencies and contradictions

were material enough to discredit her testimony.

Testimony of PW-5

Coming to PW-5 whose deposition is relied upon by the trial Court, t is noticed that she is also another granddaughter of PW-3. She had been

living at the house of PW-3 for three-four days prior to the incident. According to her, on 19th November 2013 at 6.15 am she saw PW-3 come into

the house in a perplexed condition. PW-5 supposedly asked PW-3 as to what had happened but PW-3 did not tell her anything. Thereafter PW-3

woke up at 7.45 am and then cried and told her that Cheeku had been murdered at Chameli Park. She claims to have gone to Chameli Park with PW-

3 and noticed the dead body of Cheeku whom she refers to as “my real brotherâ€​.

There is no mention made by PW-3 of the presence of PW-5 at all. She does not even acknowledge that she had any granddaughter by the name

of Soni or that she was staying with her or that in the morning of 19th November 2013 PW-5 or anyone else had come back with her to Chameli Park

after she had regained her senses. This omission by PW-3 to mention important facts makes her testimony inconsistent with that of PW-5 in a very

material way.

It is further strange that even PW-6 does not talk of the presence of PW-5 and vice versa. Even if one went through both their depositions

carefully, it would appear that the deceased and his two sisters, i.e., PW-5 and PW-6 were staying with PW-3 on the night of 18th November 2013

and even on the morning of 19th November 2013.

PW-6

The case of PW-6 is even stranger. In her previous statement to the police she had stated that when she was present at the Ghorewala Mandir on

18th November 2013, A-1 was accompanied by A-2. Now she stated that it was A-1 who met her under the influence of liquor. She denied that he

was accompanied by A-2 who was also found under the influence of liquor according to his MLC. In other words, she was thoroughly confused

whether the person who met her on 18th November 2013 was A-1 or A-2 or whether it was both of them.

PW-6 then stated that “I am not sure whether accused Prahlad met me on 18th November 2013 at 10 pm.†Since she was resiling from her

statement, all the above answers had to be elicited from her cross-examination by the APP. She stated that “it is wrong to suggest that on the next

day I came to know that my brother was murdered by the accused Devanand also at Chameli Park.â€​ She further stated that “I did not state to my

grandmother that accused Prahlad had given threat to me of murdering my brother Cheeku.†She further stated that on 19th November 2013 “my

grandmother did not come to house in my presence. I did not visit the Chameli Park, i.e., the spot.†All of this completely contradicts the testimony of

PW-23 himself who recorded that PW-6 had also reached Chameli Park upon knowing that the deceased had been murdered.

The Court is not able to reconcile the testimonies of PWs 3, 5 and 6 as no clear and cogent picture emerges therefrom. It does not seem practical

that a 75 year old woman could chase the rickshaw over a distance of 500 metres and be able to reach Chameli Park to witness the occurrence and

then run back to her house despite being in a shocked and traumatized condition. Importantly, the IO had not drawn the scaled site plan of the entire

route from Ghorewala Mandir to Chameli Park to enable the Court to appreciate whether such distance could even be covered by foot as claimed by

PW-3. Whether or not PW-3 could return home from the spot and return back there by 8 am or even reach the park within a short while would have

been explained by the scaled site plan. This elementary exercise of reconstructing the scene of crime has not been undertaken by the IO at all. What

he has placed before the Court does not appear to be credible.

The time line

The trial Court has spent a great deal of time in trying to reconstruct the time line. It must be remembered that Dharam Pal (PW-4) came to the

PS Khyala and gave information about having found a dead body only at 7 am. Thereupon PW-23 left for the spot in a government Gypsy van and

noticed the dead body of the deceased. He called the crime team who also clicked pictures of the dead body. According to PW-23, even whilst the

crime team was there, PW-3 had reached there and identified the dead body. He claims to have prepared Tehrir (EX.PW-23/A) at the site itself.

However, the report of the crime team (Ex.PW-2/A) shows against the details of the deceased column “unknown male dead body aged about

20-23 yearsâ€. This is further repeated below in the said report to the effect that “one unknown male dead body is lying in the above said park

inside near wall on right hand injury mark found. Injury found on head, one shirt of deceased found near dead body. One big size stone blood stained

found near dead bodyâ€. There is no mention of any danda anywhere nearby whereas recovery of danda allegedly used to assault the deceased took

place near the wall subsequently and purportedly at the instance of A-2. It is therefore claimed that as long as the crime team was there, and the time

is mentioned “from 8 am to 9 amâ€​, PW-3 had not reached there as claimed by PW-23.

According to PW-23, he prepared the site plan at the spot (Ex.PW-23/B) at which time PW-3 had already regained her senses. He now put the

mark “E†being the spot where PW-3 witnessed the occurrence. However, he did not indicate what route she took to run back to her house and

where that house was in relation to the park. This is, according to the Court, a serious lapse on the part of the IO and this has been overlooked

completely by the trial Court.

In reconstruction of the time line, there is no clarity on when exactly PW-3 arrived at the spot and when her statement was recorded. It appears

that by the time her statement was recorded, rukka had been prepared and FIR has been registered on her statement. Clearly therefore, recording of

statement took place much-much later, i.e., even after 9.45 and 10 am as was surmised by the trial Court. The Court is, therefore, not convinced with

the truthfulness of the testimony of PW-23 as regards the steps undertaken by him after reaching the spot. The trial Court has strained itself in trying

to make sense of the documents which show a conflicting picture of the sequence of events following the discovery of the dead body at the Chameli

Park.

Evidence relating to arrest of the accused

As regards the arrest of two Appellants, it is strange that while PW-3 is a witness to the arrest, she is not a witness to further discovery of the

danda from near the wall of the park. This again has not been explained by the prosecution.

The fact that two accused were still waiting around in an open public parking near the Guru Gobind Singh hospital after committing murder and not

hiding somewhere is totally unnatural and unbelievable. Further, that there were no public persons who could come forward for witnessing the arrest

of the accused with it being a public parking is again not believable at all.

Recoveries

The other strange part is that both the Appellants were purportedly wearing the same blood stained jeans they had on at the time of assaulting the

deceased. It is interesting to note that in her testimony, PW3 stated that she saw blood spurting out copiously from the head of the deceased but there

were no blood stains on the shirts of the Appellants. That again seems to be totally unrealistic. Why they would leave the torn shirt of the deceased

taken away from his body, near his body, leaving the upper part of the body exposed is something that is not explained.

The prosecution has also not explained how the blood stains on the slab were unable to be matched with the blood of the deceased. It is only the

DNA profile of the blood stains on the pants of the accused that matched with the DNA of the blood of the deceased. However, this was by itself not

conclusive because the manner of arrest of the two Appellants and the subsequent disclosures and seizures has not been conclusively proved by the

prosecution.

It appears that the prosecution has placed extensive reliance on the eye-witnessâ€s testimonies and did not pay attention to the corroborating

evidence including that of forensic evidence, the evidence relating to arrest and the evidence relating to recovery. None of them corroborated what is

stated by these eye-witnesses.

The Court is, therefore, unable to agree with the conclusion reached by the trial Court that the medical evidence corroborates the eye-witness

versions and links both the accused to the main incident as well as their presence at the spot. In fact the presence of the accused does not stand

proved if PW-3 is disbelieved. Merely because the blood of the victim was found on their trousers cannot, as a solitary circumstance, be sufficient to

link them to the crime. Why they would continue wearing those trousers and be waiting around to be arrested from an open parking place in the

vicinity has not been explained at all. Why they would not run away after having committed such a heinous crime is not explained. These are two

serious questions which cannot be brushed aside as being inconsequential.

Conclusion

The Court, is therefore, not able to agree with the trial Court that the prosecution has been able to prove the guilt of the accused beyond

reasonable doubt by “leaving no loose ends that would grant the benefit to the accused persons.†Suspicion, howsoever strong, cannot substitute

proof.

The Court, therefore, acquits both the Appellants for the offences under Section 302/34 IPC. Accordingly, the impugned judgment of the trial

Court and the order on sentence are hereby set aside.

The appeals are allowed in the above terms. The pending application is disposed of.

Both the Appellants are directed to be released forthwith unless wanted in some other case. Each of them shall comply with the requirements of

Section 437A Cr PC to the satisfaction of the trial Court at the earliest. The trial Court record be returned together with a certified copy of this

judgment.