Breaking News Delhi Court acquits two persons of murder charges and...

Delhi Court acquits two persons of murder charges and orders inquiry against erring police officers for malicious prosecution

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New Delhi, Nov 1 (ILNS) A Delhi Court acquitted two-person charged with murder and ordered an inquiry against the erring police officials and three prosecution witnesses for malicious prosecution and false deposit The case of the prosecution is that on 20.12.2016 an information was received from a hospital in Dwarka, regarding the death of a victim who was declared brought dead due to suspected gunshot injury. Inspector Rajbir Singh Lamba along with Sub-Inspector S P Samaria and other staff reached the Hospital. The mother of the victim was found present in Hospital in an unconscious state. Two more persons namely Yogesh Bhardwaj @ Sonu ( one of the accused ) and one of the witnesses were also found present in the said hospital.  
During the further inquiry, it was found that the victim was brought to the hospital in a car that was parked in the parking lot of the said hospital.  Accused Yogesh Bhardwaj @ Sonu produced the key of the car which was formally inspected by Inspector Rajbir Singh Lamba. The Crime Team and Mobile FSL Team were called for inspection of the scene of the crime, which was done by them wherein some exhibits and photographs were. Inspector Rajbir Singh Lamba recorded the statement of the mother of the deceased.
FIR was registered on the basis of the statement and Inspector Rajbir Singh Lamba carried out the investigation, who visited the scene of the crime, prepared a site plan at the instance of an eye witness, recorded the statement of witnesses under section 161 of Criminal  Procedure Code, 1973. Accused Shubham was found to be untraceable.  During further investigation, the Inspector obtained age proof documents of the victim from a school certificate.
Later accused Shubham was arrested on 23.12.2016 whose disclosure statement was recorded on 24.12.2016 , accused Yogesh Bhardwaj @ Sonu was also arrested and his disclosure statement was also recorded.  During police custody remand, one mobile phone was recovered at the instance of accused Shubham Gupta from his house.  Ownership details of the car were obtained which was found to be registered in the name of one Lokesh, elder brother of accused Yogesh Bhardwaj @Sonu. Statement of mother of the victim and her brother ‘was recorded under Section 161 Cr.P.C.  
On 10.01.2017, draftsmen inspected the scene of the crime and took measurements at the instance of the mother of the victim ‘ A ‘. Later  Inspector Naresh Sangwan took over the investigation after the transfer of Inspector Rajbir Singh Lamba. On 12.01.2017 , exhibits of the case were deposited with FSL Rohini, New Delhi. Verification report from Licensing Branch was obtained as per which accused Yogesh Bhardwaj was found to be holding arms license for two weapons.  The investigation progressed on other aspects of the case and finally, the charge sheet was laid before the Court under Section 302/363/34 of Indian Penal Code, 1860, section 25/27/30 of Arms Act and 77 of Juvenile Justice ( Care and Protection of Children ) Act, 2015 as sufficient evidence was found against both the accused persons.
During the trial, 41 witnesses were examined. Additional Prosecutor for the State initiated the arguments by describing the case as one based on ocular evidence, medical evidence and circumstantial evidence.  He argued that the deceased victim was allured to leave her house by the accused persons and she fell into their trap and was made to spend the entire day with them. There is ample evidence on record that demonstrates that the deceased victim consumed liquor and she is a minor, both the accused persons are liable for offence under section 77 of JJ Act.  
It is further argued that though there is no medical evidence to support this fact, however, one of the prosecution witnesses had specifically testified that the smell of liquor was apparent from the deceased victim when she was confronted by him.  With regard to the offence of murder of the deceased victim, it is pointed out that the three eyewitnesses have consistently deposed on material aspects.  Except for minor contradictions, all three witnesses have stood embedded in their testimony thereby supporting the case of the prosecution.  The additional prosecutor took the court through the examination of these witnesses to point out the circumstances in which the accused Shubham pulled the trigger of the pistol and killed the deceased victim.  
Further, with regard to the act of sexual assault, he argued that the reports of FSL have categorically nailed the case against the accused persons with their unambiguous finding that the semen found in the vagina of the deceased victim belonged to both the accused persons and the victim being minor, the case is covered under the ambit of section 4 of the POCSO Act.  Additional Prosecutor concluded the arguments by pointing towards the conduct of the accused Shubham who played truant soon after committing the offence and was not traceable for some time.  
To counter the case of the prosecution, counsel for accused Yogesh Bhardwaj embarked upon his arguments by stating that the case of the prosecution is riddled with umpteen infirmities which lead to the only conclusion that the entire case was set up by the investigating agency and hence during the trial, various strands of the case came to be disintegrated.  He broached the case with the very crucial infirmity of the delay in reporting the matter to the police.  He pointed out that there has been a delay of 11 to 12 hours in the registration of FIR and the explanation given by the mother of the child victim that she was unconscious for a few hours after learning about the death of his daughter is untrustworthy.  He further argued that there is no record or material to show that the mother was not in a position to give the statement to the police.  There is evidence on record that she was in touch with her relatives soon after the commission of the offence, which makes her version completely unreliable. Counsel further pointed out that the investigation into the case could have commenced on the basis of DD entry, which was not done, the MLC of the deceased victim also reveals that there was a suspected gunshot injury without divulging the name of the assailants. Apart from this, there is no explanation as to why the statement of other witnesses was not recorded at the inception when admittedly they were also the purported eyewitnesses to the incident, counsel for the accused added.
He further pointed out that the first site plan was made at the instance of a witness and the second site plan dated 10.01.2016 was made at the instance of the mother of the deceased after almost 20 days of the incident making the same unreliable.  The site plan also does not spell out a clear picture of the manner in which the gunshot was fired.  
He further demonstrated that accused Yogesh Bhardwaj was given a clean chit in the FIR as he was the one who accompanied the mother of the child victim to the hospital.  There is no allegation of the kidnapping of the deceased, the version of the victim against him.  Contrary to prosecution, the alleged firearm was recovered from the dashboard of the car and not from the spot.  He further argued that the chain of events does not show the involvement of the accused Yogesh Bhardwaj.  
With regard to the killing of the deceased victim,  Counsel sought to prove that the circumstances brought on record point towards the fact that the deceased victim had shot herself while accused Shubham and N were fighting .  He sought to corroborate this fact by pointing that the gunpowder was found on the hands of the deceased victim which shows that she was the one who pulled the trigger.
Counsel further led his tirade against the prosecution that none of the witnesses had spoken about the role of accused Yogesh Bhardwaj in the death of the deceased victim.  There is no medical evidence that accused Yogesh was found to have consumed alcohol .  Counsel also pointed out the circumstances that although the seized pistol belongs to the accused Yogesh Bhardwaj @ Sonu , however, there are gaping holes in the case of the prosecution as they had failed to connect the recovered pistol from the bullet which was found in the  body of the deceased victim.  He further went on to assail the reports of FSL dated 06.09.2017 and 09.04.2018 by alluding to the testimony of expert witness Dr.  Sarabjit Singh.
The Special Pocso Court of Navjeet Budhiraja having established the identity of the deceased victim , held that the next germane aspect of the case of the prosecution is that the deceased victim ‘was shot dead by accused Shubham with the pistol which was handed over to him by accused Yogesh Bhardwaj .  
On the contrary,  Counsels for both the accused persons have ambitiously claimed the case of the prosecution to be a setup against the accused persons while propounding that the deceased victim  committed suicide by shooting herself from the pistol .  Both the sides have tried to establish their side of story on the basis of material on record in the form of first information report , statement of witnesses namely mother of deceased victim ‘and her brother .
“There is no duration of time which is fixed by the legislature or the judiciary for giving information of a crime to the police.  However, it has been observed that FIR has to be filed within a reasonable time.  The question of reasonable time being a matter is for determination of the court in each case.  Mere delay in lodging the FIR with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution.  Even a long delay in lodging FIR can be condoned if witnesses have no motive of implicating the accused and have given a plausible reason for delay”, the Court observed.
The Court found that blackening and tattooing of the wound were there on the body of the deceased victim, which is mainly present when the shot is fired from a close range.  This can happen if the person shot is carrying the weapon himself who then fires the shot towards any part of his body or by some other person who by bringing the weapon so close to the body of the person to be shot pulls the trigger.
Both the accused persons have also been charged for the offence of kidnapping punishable under section 363/34 IPC.  The offence of kidnapping as enunciated in Section 361 of IPC uses the words ” takes ” and ” entices “.  The other essential ingredients are that she should be taken out of the keeping of the lawful guardian without the consent of such guardian.  The prosecution examined the mother of the child victim, her brother and the father a.  However, none of these witnesses spoke anything which could establish the essential ingredients of the offence of kidnapping as provided in Section 361 IPC.  Nonetheless, it has failed to establish that either of the accused was instrumental in taking out or enticing the deceased victim from her house out of the keeping of lawful guardians, the Court noted.
“Before parting with this order, it is observed that I would be failing in my duty if I chose to shut my eyes as regards the gross misconduct on the part of the investigating agency which has acted maliciously by converting the case of suicide into that of culpable homicide amounting to murder and falsely implicating the accused persons.  There is ample material on record in the form of a finding of delayed registration of the FIR, tainted testimony of the eyewitnesses, the medical report and the FSL report being contrary to the version of the eyewitnesses, all of which suggest their involvement in setting up the false case against the accused persons in connivance with the family members of the deceased victim “, the Court observed in conclusion to initiate inquiry against the erring police officials (IO Rajbir Singh Lamba and IO Naresh Sangwan) and three prosecution witnesses which includes mother of the deceased, a friend of the deceased and a senior scientific officer (who prepared the Forensic Science Laboratory (FSL) report ) for malicious prosecution and false deposition./ILNS/SS/SNG/

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