Jitender Mahawar @ Kalu @ Pawan vs State
2014 Latest Caselaw 4637 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Date of Decision: September 19, 2014
+                               CRL.A. 1069/2014
      JITENDER MAHAWAR @ KALU @ PAWAN             ..... Appellant
               Represented by: Mr.Pramod Kumar Dubey,
                               Advocate with Mr.Pulkit Misra and
                               Ms.Namita Wali, Advocates

                                      versus

      STATE                                            ..... Respondent
                   Represented by:    Mr.Varun Goswami, APP
                                      Insp.Anand Prakash, P.S.Vasant
                                      Vihar
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

1. Holding appellant Jitender Mahawar @ Kalu @ Pawan guilty of the offence of having murdered Deepak Thapa, the learned Trial Judge has held that the testimony of Dinesh Kumar PW-1 establishes proof of the fact that Jitender and the juvenile co-accused 'K' were in the company of the deceased at around 12 mid-night at the place where five hours after the dead body was found, attracts the genre of law concerning last scene. A jacket got recovered by the appellant on which human blood of Group 'O', same group as that of the deceased was the next incriminating evidence found. The further incriminating evidence was the recovery of a mobile phone held proved by the learned Trial Judge as that of the deceased. Motive has been established by the learned Trial Judge through the testimony of Ms.Babli

PW-20.

2. Information was received at PS Dhaula Kuan at 9.45A.M on December 14, 2010 that the dead body of a male was lying at Rao Tula Ram Marg flyover at its junction with Olof Palme Road.

3. SI Mandeep PW-25 to whom the matter was referred for investigation reached the spot and found the dead body of a male person from whose personal search `250/- was recovered. Near the dead body a SIM card of Idea Company was found. Two shirts, one orange and the other blue were also seen by him. A purse containing a voter ID card, two lighters, two gloves and one copper wire bundle were also seen lying near the dead body. He seized the articles as recorded in the seizure memos Ex.PW-12/A, Ex.PW-12/B, Ex.PW-12/C and Ex.PW-12/D. Pieces of brick and concrete stone lying nearby were seized vide memo Ex.PW-12/E.

4. The dead body was sent to the mortuary of All India Institute of Medical Sciences for post mortem.

5. The voter ID card was in the name of Deepak Thapa and since the address was mentioned thereon, information was conveyed to the mother Radha Thapa and the brother Arjun Thapa of the deceased.

6. The post mortem of Deepak's dead body was conducted by Dr.Akhilesh Raj PW-15 who authored the report Ex.PW-15/A recording therein eight injuries on the dead body of which two were fatal. The injuries were lacerated wounds on the body, with two being on the temporal region resulting in subdural and subarachnoid haemorrhage. The right parieto temporal bone was fractured.

7. It was apparent that the deceased had been struck blows by a hard blunt object, which could be the broken brick pieces seized from the spot by

SI Mandeep PW-25.

8. Dinesh Kumar PW-1 had claimed, as told to the Investigating Officer that around mid-night he, the deceased, Kalu (the appellant) and 'K' (a juvenile) were together at Shastri Market. The market is in Moti Bagh and is hardly 500 metres away from the place where Deepak's dead body was found.

9. Kalu and 'K' became suspects and as per the prosecution were apprehended.

10. Since we are not concerned with 'K', the juvenile, who was referred to the Juvenile Justice Board for trial, we note that the prosecution claims to have recovered a mobile phone Ex.P-13, without a SIM card when appellant was apprehended and personal search was conducted. The learned Trial Judge has opined that the said mobile phone belonged to the deceased. The prosecution also claims that the appellant also got recovered a jacket, on which we find that as per the FSL Report Ex.PW-27/C to Ex.PW-27/E human blood of group 'O', that of the deceased was detected.

11. As regards the mobile phone Ex.P-13, the evidence is that on December 16, 2007, as deposed to by HC Anil PW-4, the same was deposited in the malkhana by Insp.Pawan as per entry No.1478, Ex.PW-4/C. Radha Thapa PW-5, Deepak's mother has deposed that her son Deepak had a black coloured Videocon mobile telephone but did not remember the mobile number. The mobile phone Ex.P-13 has not been put to her for dock identification and we find that there is no TIP conducted qua the instrument. Insp.Pawan Kumar PW-27 and Ct.Ashok Kumar PW-14 have deposed that they recovered the mobile phone Ex.P-13, being a Videocon mobile phone having model No.V-1306 during the personal search of the appellant.

During the deposition of the two witnesses it has surfaced that the IMEI number of the mobile phone, since it was a dual SIM card instrument, being two in number, were 910030000020129 and 910030005020116. Pawan Singh PW-10, an officer from Idea cellular has proved the call details of mobile No.8750417321 for the period December 02, 2010 till December 14, 2010, Ex.PW-10/A, which shows that the SIM card pertaining to the number was used on a mobile phone having IMEI No.910030005020116. (And we note that the controversy regarding the last digit being 0 or 6 stands resolved by the fact that IMEI number is a 14 digit number and the last number which is superfluous could be any between 0 to 9 when call detail printouts are generated)

12. Unfortunately the learned Trial Judge appears to have been influenced by Insp.Pawan Kumar's testimony that Radha Thapa had told him that mobile No.8750417321 was being used by Deepak Thapa. This testimony of Insp.Pawan Kumar is inadmissible evidence.

13. On the subject of the mobile phone we need to further note that as per Pawan Singh PW-10, the copy of the application form Ex.PW-10/B and the ID proof Ex.PW-10/C submitted by the consumer for the mobile number was in the name of one Laxmi, who has not been produced as a witness.

14. The prosecution has thus not proved that the mobile phone Ex.P-13 belonged to the deceased.

15. As regards the evidence of last seen, Dinesh PW-1 has deposed that accompanied by his friend Deepak he had visited a prostitute at Kotha No.57 on GB Road in the night at around 9:00 PM and both returned in an auto. Whereas he got down on the road at Shastri Market. Deepak went ahead in the auto. Thereafter at Shastri Market he met Kalu and 'K'.

16. Now, as deposed to by Dinesh he does not claim that the deceased was seen by him in the company of Kalu and 'K'. He claims to have met the two in Shastri Market when he alighted from the auto, and after Deepak went ahead in the auto. But we note that cross examined by the learned public prosecutor he admitted having made the statement Ex.PW-22/A before Ms.Ankita Lal, MM South East, District Delhi, in which statement it is recorded that on returning after having sex with a prostitute at a brothel, he and Deepak Thapa got down at ring road where they met Kalu and 'K'. He parted company. The deceased along with Kalu and 'K' proceeded to their house.

17. We further find that when he was cross examined, Dinesh said that he did not know 'K' and had seen him for the first time when he and the deceased had returned from the brothel to Moti Bagh.

18. We simply highlight that if Dinesh did not know 'K' and had met him fleetingly, if we believe his statement Ex.PW-22/A on the night in question, it doesn't stand to reason and logic that he could refer to 'K' by name while making his statement before the learned Metropolitan Magistrate.

19. Finding a severe discrepancy in Dinesh's testimony in the Court and what is recorded in Ex.PW-22/A and further highlighting that there is a serious taint in the fact recorded in the statement Ex.PW-22/A, we are left with no option but to grant the benefit of doubt to the appellant and hold that the evidence of last seen is shaky.

20. As regards the recovery of the jacket by the appellant on which human blood of Group 'O', the same blood group as that of the deceased was detected, the same by itself, in a case of circumstantial evidence would not be sufficient evidence to sustain the verdict of guilt. Besides we find

that the prosecution has not shown the jacket to Dinesh Kumar PW-1 to illicit a response from him whether this was the jacket worn by the appellant when he met the appellant in the late night past 12:00 midnight.

21. As regards the motive for the crime held proved by the learned Trial Judge we find that Bubly PW-20 has deposed that she knew three boys named 'K', Katta and Kalu. Katta used to tease her. She had informed Kalu and 'K'. She learnt that Katta had been killed.

22. It is apparent that the boy Katta referred to by her is the deceased Deepak Thapa.

23. It is too remote a cause to assume the proportion of a motive to kill Deepak.

24. The appeal is allowed. Impugned decision dated January 24, 2013 convicting appellant for the offence of having murdered Deepak Thapa is set aside. The order dated January 31, 2013 sentencing him to suffer imprisonment for life is set aside. The appellant is acquitted of the charge framed against him.

25. Appellant be set free forthwith if not required in any other case.

26. A copy of the decision be sent to the Superintendent Central Jail Tihar for his record and compliance.

Crl.M.B.No.10224/2014 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE SEPTEMBER 19, 2014/mamta