H. S. Thukral
Posted On 18 June 2012 at 14:07
The Judgment is as follows. It is from Dwarka Court of Delhi and not Rohini
IN THE COURT OF SH. VIRENDER BHAT, A.S.J., DWARKA
COURTS, NEW DELHI.
SC No. 157/08.
Unique Case ID No.02405R1030822005.
State Vs. 1. Khilender,
S/o Sh. Raghubir Singh,
R/o Dichau Kalan,
2. Smt. Vidya Devi,
D/o Sh. Raghubir Singh,
R/o Dichau Kalan,
3. Ravinder Kumar,
S/o Sh. Daya Nand,
R/o Village Ishapur,
4. Ramesh Chand, (P.O.)
S/o Sh. Kishan Lal,
R/o Village Dosha,
5. Smt. Kamlesh Devi,
D/o Sh. Raghubir Singh,
R/o Village & P.O. Dichau Kalan,
6. Smt. Suresh Devi,
W/o Sh. Raghubir Singh,
R/o Village & P.O. Dichau Kalan,
Date of Institution : 18.10.2005.
SC No.157/08. Page 1 of 39FIR No.214 dated 24.9.2004.
U/s. 365/302/201/120B IPC.
Date of reserving judgment/Order : 21.5.2012.
Date of pronouncement : 06.6.2012.
1. The abovenamed accused had been charge-sheeted
by the police for having committed the offences punishable u/s.
365/302/201/120B IPC. It is alleged that the accused, in
pursuance to a well planned conspiracy, kidnapped and killed one
Rajbir, son of Sh. Balbir Singh.
2. Accused Kamlesh is the wife of Rajbir, accused Suresh
Devi is his mother-in-law, accused Khilender is his brother-in-law,
accused Vidya Devi is his sister-in-law.
3. As per the prosecution case, Rajbir Singh had gone
missing on 17.7.2004 and could not be found thereafter. He had
left his house saying that he is going to the house of his in-laws i.e.
the house of accused as his wife had already gone there pursuant
to a minor triffle. It is further alleged that in fact, Rajbir Singh had
been kidnapped and later murdered by the accused. The defence
of the accused, however, is that the prosecution has failed to
establish conclusively that Rajbir has, in fact, been killed. It is put
forth on behalf of accused that Rajbir Singh may be still alive and
his brother and father have concocted a false story of his
kidnapping and murder in order to usurp Rajbir's share in the
ancestral property and other movable assets. It is, thus, seen that
SC No.157/08. Page 2 of 39the factum of death or murder of Rajbir Singh in itself is in issue.
4. The information about the disappearance of Rajbir
Singh from his house was conveyed, as per the contents of the
Charge Sheet to P.S. Kapashera by his brother Rambir Singh on
02.9.2009, which was recorded as DD No.20A, whose contents are
as under :
“At 3 p.m. - it is recorded that the complainant
appeared in the police station and stated that my
mother Rajbir, s/o Balbir Singh, had strained relations
with his wife, on account of which his wife had gone to
her parental house. My brother left his house saying
that he is going to his in-laws house. He had gone on
17.7.2004 at about 3 p.m. on his Bajaj Chetak scooter
bearing No.DL-4S-AJ-9659 and has not returned till
date. We have searched for him but could not find
5. On the basis of aforesaid information, the police
searched for Rajbir Singh intensely but could not find him. On
21.9.2004 Rajbir's father Sh. Balbir Singh got his statement
recorded as under :
“I usually remain at home. I have six sons and a
daughter. Rajbir is my third son. He had got married
to Kamlesh, daughter of Sh. Raghbir, resident of
Dichau, in the year 1994. After two years of marriage,
Rajbir separated from us and a division has taken
place. Rajbir is missing alongwith his scooter bearing
registration no.DL-4S-9659 since 17.7.2004, the
information about which has already been given to the
police. Rajbir was being harassed and pressurised by
his wife Kamlesh, brother-in-law Khilender and his
other in-laws. I have grave suspicion that Rajbir has
been kidnapped by the aforesaid persons. His scooter
has been found in suspicious circumstances in
SC No.157/08. Page 3 of 39Chandni Chowk area. FIR may be registered and legal
action be taken.”
6. On the basis of the aforesaid statement of Sh. Balbir
Singh, an FIR bearing No.214/2004 was registered in P.S.
Kapashera u/s.365 IPC and the investigation was handed over to SI
Surjeet Singh. The IO SI Surjeet Singh made search for Rajbir but
in vain. The scooter no.DL-4S-AJ-9659 of Rajbir had been found
abandoned in the area of P.S. Kotwali, Daryaganj, and the same
was seized by the IO in this case.
7. As per further case of the prosecution, a dead body of
a male was found near canal in village Mundela in the area of P.S.
Jaffarpur Kalan on 19.9.2004 and an FIR u/s.136/04, u/s.302/201
IPC, had been registered in this regard. During the course of
investigation of this case, Rambir, the brother of the deceased
suspected the aforesaid dead body to be of Rajbir on the basis of
colour of the underwear worn by the deceased. The IO in case FIR
no.136/04 Sh. Nand Kumar got conducted the DNA fingerprint
tests of the dead body and as per the report submitted by the
Centre for DNA fingerprints and diagnostics, the dead body came
to be identified as that of missing Rajbir, son of Balbir.
Consequently, the investigation of FIR No.136/04, P.S. Jaffarpur
Kalan, was transferred to P.S. Kapashera and was clubbed with the
investigation of the present case. Thereafter, the investigation of
the case was entrusted to the then SHO, P.S. Kapashera, Inspector
8. On 24.7.2005 the IO Inspector Ramesh Chander got
SC No.157/08. Page 4 of 39information from P.S. Delhi Cantt that an accused namely
Khilender in FIR No.247/2005, u/s.25/54/59 Arms Act has been
arrested and he has disclosed his involvement in the present case.
Accordingly, Inspector Ramesh Chander alongwith HC Babu Lal
reached P.S. Delhi Cantt. interrogated accused Khilender and
arrested him in the present case. His disclosure statement was
recorded. Thereafter, IO arrested accused Ravinder, Ramesh
Chander and Vidya Devi. He also seized a Maruti car bearing
registration no.DL-9CD-0831 which had been used in the
commission of offence. Accused Suresh and accused Kamlesh Devi
could not be arrested at that juncture. Later on, accused Kamlesh
Devi was found bed ridden in her house on 14.11.05 and it came
to be known that a murderous attack was launched on her on
05.7.2005 by accused Khilender and his mother accused Suresh
Devi by running a vehicle over her, regarding which FIR No.444
u/s.279/338 IPC had been registered in P.S. Najafgarh and the
offence had thereafter been converted to Section 307 IPC. It also
came to be known that accused Kamlesh had got registered an FIR
No.243/2004, u/s.307/506/328/379/34 IPC against her in-laws in
9. It is further case of the prosecution that the IO
Inspector Ramesh Chander also recorded the statement of the
witness named Raj Singh, who had last seen Rajbir on 17.7.2004 in
village Dichau Kalan. It is further alleged that accused Vidya Devi
has made an extra judicial confession about the involvement of all
the accused in the present case to one Sh. Deepak Sharma.
Taking into account the aforesaid facts and circumstances, which
came out from the investigation till that time, the Investigating
SC No.157/08. Page 5 of 39Officer laid charge sheet before the concerned Magistrate against
accused Khilender, Vidya Devi, Ravinder and Ramesh Chander.
10. Here it may be noted that the accused Ramesh
Chander had been appearing in the case till January, 2008 and
thereafter, abruptly stopped appearing before the court.
Ultimately, he was declared proclaimed offender vide order dated
11. Accused Suresh Devi and accused Kamlesh had not
been arrested by the time the aforesaid Charge Sheet was filed.
The police came to know that accused Suresh Devi has been
absconding from her house since after the arrest of accused
Khilender, Ramesh and Ravinder. Accordingly, she was declared
proclaimed offender by the court vide order dated 14.11.2005. As
noted herein-above, accused Kamlesh was bed ridden on account
of injury inflicted upon her by accused Khilender and her mother
accused Suresh Devi. She came to be arrested in this case on
31.3.2006. Later on, accused Suresh Devi also came to be
arrested on 25.4.2006. Pursuant to the arrest of accused Kamlesh
and Suresh Devi, a supplementary Charge Sheet was prepared
and laid before the concerned Magistrate in the month of July,
12. Upon committal of the case to the court of sessions,
following charges were framed against accused Khilender, Vidya
Devi, Ravinder and Ramesh Chand on 14.12.2005 :
“That on or before 19.9.2004 you all alongwith your
co-accused Smt. Suresh Devi (PO) and Kamlesh Devi
(not arrested so far) hatched a conspiracy to commit
SC No.157/08. Page 6 of 39an illegal act i.e. to commit the murder of Rajbir and
in pursuance of the said agreement/criminal
conspiracy at the house of accused Khilender S/o
Raghuvir Singh at village Dichau Kalan, New Delhi,
you committed the murder of Rajbir by causing his
death and you all thereby committed an offence
punishable U/s.120B IPC and within cognizance.
Secondly, on the night intervening 17/18.9.2004
exact time now known, you all alongwith your coaccused Smt. Suresh Devi (PO) and Kamlesh Devi (not
arrested so far) kidnapped Rajbir, at the house of
accused Khilender S/o Raghubir Singh before his
murder with intention to commit his murder and you
all thereby committed an offence U/s.365 r/w section
120B IPC and within my cognizance.
Thirdly, on the night intervening 17/18.9.2004,
you all in pursuance of the said conspiracy hatched by
you all mentioned above, you all committed murder of
Rajbir Singh by causing his death at Dichau Kalan at
the house of accused Khilender S/o Sh. Raghubir
Singh and the dead body of deceased Rajbir was
found and recovered from canal near Toll Tax barrier
village Bundelkhurd near Dada Kheda Mandir on
19.9.2004 and you thereby committed an offence U/s.
302 IPC r/w section 120B IPC and within my
Fourthly, after committing the murder of Rajbir
on the abovementioned date, time and place in
pursuance of the said conspiracy, thrown the dead
body of deceased Rajbir Singh into the canal after
putting the same in a gunny bag and tied the same
and you caused the evidence connected with the
murder to be disappeared or destroyed knowingly
with intention to screen yourself from legal
punishment and you thereby committed an offence
U/s.201 IPC r/w section 120B IPC and within my
13. Following charges were framed against accused
SC No.157/08. Page 7 of 39Kamlesh and accused Suresh Devi on 04.1.2007 :
“That on or before 19.9.2004 you both alongwith your
co-accused Khiledner S/o Raghubir Singh, Vidya Devi
D/o Raghubir Singh, Ravinder Kumar S/o Daya Nand
and Ramesh Chand S/o Kishan Lal hatched a
conspiracy to commit an illegal act i.e. to commit the
murder of Rajbir and in the pursuance of the said
agreement/ criminal conspiracy at the house of
accused Khildender S/o Raghubir Singh at Village
Dichau Kalan, New Delhi, you committed murder of
Rajbir by causing his death and you all thereby
committed an offence punishable U/s.120B IPC within
the cognizance of this court.
Secondly, on the intervening night of
17/18.9.2004 both of you alongwith your co-accused
Khilender S/o Raghubir Singh, Vidya Devi D/o Raghubir
Singh, Ravinder Kumar S/o Daya Nand and Ramesh
Chand S/o Kishan Lal, in pursuance of the above
mentioned conspiracy hatched by you all, you all
committed murder of Rajbir Singh by causing his
death at Dichau Kalan at the house of accused
Khilender S/o Raghubir Singh and the dead body of
deceased Rajbir was found and recovered from canal
near Toll Tax Barrier village Bundela Khurd near Dada
Kheda Mandir on 19.9.2004 and you thus thereby
committed an offence punishable U/s.302 IPC read
with Section 120B IPC and within the cognizance of
Thirdly, after committing the murder of Rajbir on
the above mentioned date, time and place in
pursuance of above mentioned conspiracy thrown the
dead body of Rajbir Singh into the canal after putting
the same in a gunny bag which was tied also and you
caused the evidence connected with the murder to be
disappeared or destroyed knowingly with intention to
screen yourselves from legal punishment and you
thereby committed an offence punishable U/s.201 IPC
read with Section 120B IPC within the cognizance of
SC No.157/08. Page 8 of 3914. All the accused claimed not guilty to the aforesaid
charges and hence trial was commenced. The prosecution has
examined following witnesses to prove the guilt of the accused :
(i) PW1 Raj Singh - He had seen deceased Rajbir last
on 17.7.2004 i.e. the day on which the deceased
disappeared, as per the case of the prosecution.
(ii) PW2 Pradeep Sharma – He was the landlord of
accused Vidya Devi and as per the case of the
prosecution, accused Vidya Devi had made extra
judicial confession to him about her involvement in
the murder of Rajbir.
(iii)PW3 WHC Pavitra – She was Duty Constable at P.S.
Kapashera on 21.9.2004 and had recorded the FIR.
(iv)PW4 Rambir Singh – He is the brother of deceased
Rajbir and a star witness for the prosecution.
(v) PW5 Jagpal Singh – He was the Duty Constable at
P.S. Kapashera, who recorded missing report vide DD
(vi)PW6 HC Jai Ram – He was MHC(M) at P.S. Kotwali.
(vii)PW7 Const. Rishi Kesh – He was posted at P.S.
Kotwali and had deposited the scooter of Rajbir with
MHC(M) on 20.7.2004.
(viii)PW8 SI Madan Lal – He was the Draftsman, who
prepared scaled site plan of the spot.
(ix)PW9 Balbir Singh – He is father of deceased Rajbir.
(x) PW10 Inspector Nand Kumar – He was posted at
SC No.157/08. Page 9 of 39P.S. Jaffarpur Kalan before whom PW4 and PW9
identified the undergarment of deceased Rajbir on
(xi)PW11 HC Ram Niwas – He was the Duty Officer at
P.S. Jaffarpur Kalan and had registered FIR No.136/04,
(xii)PW12 SI Bhagwan Dass – He was posted with
Crime Team and had examined the scooter of
deceased Rajbir on 05.11.2004.
(xiii)PW13 SI Anand Prakash – He was the
Investigating Officer in FIR No.444/05, u/s.279/338
IPC, P.S. Najafgarh and he had formally arrested
accused Khilender and one Narender in that case,
who were already under arrest at that time in FIR No.
247/05 and had also recorded the disclosure
statement of Narender.
(xiv)PW14 HC Ram Rattan – He was the Duty Officer at
P.S. Jaffarpur Kalan, who had received information on
19.9.2004 about the dead body of an unidentified
person lying at village Mundela, which he recorded as
(xv)PW15 Krishan Singh – He was the private
photographer engaged by the police, who had taken
photographs of the dead body at DDU Hospital.
(xvi)PW16 Inspector Mahinder Singh – He was
posted as SI at P.S. Kapashera on 24.7.2005 and had
gone to P.S. Delhi Cantt. alongwith Inspector Ramesh
Chander and other staff, where they arrested accused
SC No.157/08. Page 10 of 39(xvii)PW17 Sh. D.S. Negi - He was the Technical
Examiner, CDFD, Hyderabad and had compared the
DNA of Smt. Jermanti and Sh. Balbir Singh, the
parents of the deceased Rajbir, with the DNA of a
piece of muscle of the unknown dead body, which had
(xviii)PW18 ASI Babu Lal – He was posted at Delhi
Cantt. and was the Investigating Officer in FIR no.
247/05 u/s.25 of Arms Act against accused Khilender.
(xix)PW19 SI Surjit Singh – He was posted at P.S.
Kapashera and brought the scooter bearing no.DL-4SAJ-9659 of deceased Rajbir from P.S. Kotwali to P.S.
Kapashera and also got the same inspected
(xx)PW20 HC Azad Prakash – He was posted at P.S.
Jaffarpur Kalan on 19.9.2004 and was the member of
the team of police personnels, who had reached
village Mundela on receipt of information of an
unidentified dead body lying there. He had brought
rukka prepared by SI Pratap Singh to the police
station and had got FIR No.136/04 u/s.302 IPC
(xxi)PW21 SI Pratap Singh – He was also posted at
P.S. Jaffarpur Kalan and had gone to the spot in
village Mundela where the unidentified dead body
was lying. He had taken the dead body out of the
sack and examined it. He had prepared the rukka
and got FIR No.136/04 registered.
(xxii)PW22 HC Jitender Singh – He was also posted at
SC No.157/08. Page 11 of 39P.S. Jaffarpur Kalan, who had taken two plastic jars
alongwith one sample seal to FSL on the instructions
of the IO.
(xxiii)PW23 Const. Karamvir - He was posted at P.S.
Delhi Cantt. and was witness to the arrest of accused
Khilender in FIR No.247/05.
(xxiv)PW24 HC Yashwant – He was posted at P.S.
Jaffarpur Kalan and had gone to Hyderabad to deposit
four sealed pullindas in CDFD Laboratory, Hyderabad.
(xxv)PW25 SI Rajender Singh - He was the Incharge
of Mobile Crime Team, South West District, on
19.9.2004 and had inspected the spot where
unidentified dead body was found in village Mundela
(xxvi)PW26 HC Rajbir Singh – He was posted as
MHC(M) in P.S. Jaffarpur Kalan on 23.9.2004.
(xxvii)PW27 Sh. Sanjeev Jain – He was posted as MM
in Patiala House Court on 16.2.2005 and the DNA
samples of Balbir Singh and Jermanti were obtained
by Dr. Sunita Solanki of RTRM Hospital in his
(xxviii)PW28 Dr. B.N. Mishra - He had come to depose
in place of Dr. Naranware, who had conducted the
postmortem examination of the aforesaid unidentified
dead body. He proved the postmortem report.
(xxix)PW29 SI Nanak Chand - He was associated in
the investigation of this case alongwith SI Mahender
and was witness to the pointing out memos prepared
at the instance of accused Khilender, Ramesh and
SC No.157/08. Page 12 of 39Ravinder. Accused Vidya Devi also had made a
disclosure statement in his presence on 26.8.2005.
Accused Kamlesh was arrested in his presence on
31.3.2006 and accused Suresh Devi was also arrested
in his presence on 25.4.2006.
(xxx)PW30 HC Ravinder - He was the photographer in
Mobile Crime Team, South West District, New Delhi,
who had taken the photographs of the unidentified
dead body at village Mundela Khurd.
(xxxi)PW31 Sh. Sanjeev Parmar – He was the SHO,
P.S. Jaffarpur Kalan on 19.9.2004 and had taken over
the investigation of FIR No.136/04, u/s.302/201 IPC.
He has prepared the site plan of the spot where the
dead body was found, prepared inquest papers
regarding the dead body.
(xxxii)PW32 SI Mahesh Soni – He was posted at P.S.
Kapashera and had executed the process u/s.82 Cr.PC
against accused Surresh Devi on 14.11.2005.
(xxxiii)PW33 Sh. Abhimanyu Kumar - He was the
handwriting expert at CFSL, Chandigarh, and
examined the questioned handwriting sent to him in
(xxxiv)PW34 Rajinder Singh – He was the Manager of
Syndicate Bank, Pochanpur, New Delhi, in the year
2006 and proved the statement of account no.80261
in the name of deceased Rajbir.
(xxxv)PW35 ASI Krishna, No.3042 - She was posted
at P.S. Kapashera on 01.4.2004 and the SHO had
taken specimen signatures of accused Kamlesh Devi
SC No.157/08. Page 13 of 39in his presence in the police station.
(xxxvi)PW36 ASI Krishna, No.3052 – She was posted
at P.S. Kapashera and was witness to the arrest of
accused Kamlesh on 31.3.2006.
(xxxvii)PW37 Sh. Sri Narayan – He was the Sr.
Scientific Officer (Chemistry) at FSL, Rohini, and had
examined the exhibits of this case sent to FSL, Rohini.
(xxxviii)PW38 Inspector Ramesh Chander - He was
the final Investigating Officer of this case.
15. The accused were examined u/s.313 Cr.PC on
02.2.2012 wherein they denied all the incriminating circumstances
put to them. They denied that Rajbir had come to his in-laws
house i.e. house of accused Khilender, Ravinder and Vidya Devi on
17.7.2004. They have stated that they have been implicated
falsely in this case on account of strained relations between
accused Kamlesh and her in-laws as she had got registered a case
u/s.307 IPC against her brother-in-law Rambir (PW4) and his entire
16. The accused examined two witnesses namely Sh.
Jagbir Singh and Sh. Azad Singh as DW1 & DW2 respectively in
their defence. Sh. Jagbir and Sh. Azad Singh are the residents of
village Dichau Kalan and known to the family of Sh. Raghubir
Singh, father of accused Kamlesh, Vidya Devi and Khilender and
husband of accused Suresh Devi. Accused Kamlesh entered the
witness box as DW3 and proved the certified copies of the record
pertaining to complaint case no.10/05 pending in the court of Sh.
Sonu Agnihotri, Ld. M.M., and the certified copy of the record
SC No.157/08. Page 14 of 39pertaining to writ petition no.1267 filed by Balbir Singh in the High
17. I have heard Ld. APP for State, Ld. Counsel Sh. S.P.
Kaushal, Advocate for accused Khilender, Vidya Devi, Ravinder,
and Smt. Suresh Devi and Sh. Anirudh Yadav, Advocate for
accused Kamlesh Devi. I have also gone through the written
submissions filed by both sides.
18. Ld. APP submitted that, even though there is no eye
witness to the murder of the deceased, yet the prosecution has
successfully established the circumstances which lead to the
disappearance and death of Rajbir, which point towards the guilt of
the accused only. He submitted that there remains no doubt that
Rajbir has been killed by the accused. According to him, it has
been established conclusively with the help of DNA fingerprinting
that the dead body found in village Mundela Khurd was that of
Rajbir and hence his death does not remain an issue. He further
submitted that postmortem report demonstrates that the death
was homicidal. He also submitted that the circumstances that
Rajbir had left his house on 17.07.2004 saying that he is going to
his in-laws’ house; he was last seen by PW1 going to his in-laws’
house, his dead body was found in a drain just 3 kms away from
the house of the accused, the dead body was found wearing Kurta
Pyjama of Rajbir’s father-in-law having a bidi of ‘Trishul’ brand in
the pocket which only his father-in-law Raghubir used to smoke,
accused Kamlesh got her in-laws i.e. the complainant and his
family members implicated in a false case u/s.307 IPC, she never
made any complaint about the disappearance of her husband and
SC No.157/08. Page 15 of 39absconding of accused Suresh Devi coupled with the disclosure of
accused Khilender recorded in P.S. Delhi Cantt. firmly establish
that Rajbir was murdered by the accused and nobody else. With
regard the motive for the murder, he submitted that it has been
proved that the relations between Rajbir and his wife accused
Kamlesh were strained since beginning as Rajbir suspected
Kamlesh of having illicit relations with others. According to him,
Rajbir had, in letter Ex.PW4/1 written in 1999, expressed that his
life is in danger as he has been objecting to the conduct of his
19. Per Contra, Ld. Defence Counsels would argue that
DNA testing conducted in this case is fraught with flaws which
make it totally unreliable. They submitted that there is no such
concrete evidence on record to establish that the dead body found
in village Mundela was that of Rajbir. According to them, the
prosecution has failed to prove the factum of death of Rajbir. They
further argued that the circumstances explained by the
prosecution have not been proved at all and even if assumed to be
proved, for the sake of arguments, are very weak in nature and
conviction for offence u/s.302 IPC cannot be rendered on the basis
of those circumstances. The sum and substance of their
arguments was that the prosecution has failed to link any of the
accused with the disappearance and alleged death of Rajbir.
20. On analysis of the evidence lead by the parties in the
instant case and the arguments raised by the defence Counsels,
following issues arise for consideration and determination by this
SC No.157/08. Page 16 of 39(i) Whether the dead body found in canal in village
Mundela Khurd was that of Rajbir s/o Balbir Singh,
meaning thereby that Rajbir has, in fact, been killed?
(ii)Whether Rajbir was kidnapped and killed by the
accused pursuant to a well hatched conspiracy?
21. I shall take up issue no. (i) first.
22. As per the prosecution case, the identity of the dead
body was established to be that of Rajbir by the colour of its
underwear which was identified by Rambir (PW4) and Balbir (PW9),
who are the brother and father of the deceased as also by
comparison of its DNA with that of the parents of Rajbir i.e. Balbir
23. A PCR call was received in P.S. Jaffarpur Kalan on
19.9.2004 at 7.15 p.m. to the effect that the dead body of an
unknown person is lying in a canal in village Mundela near Toll
Tax, Dada Khera Mandir. The information was received by PW14,
who was the Duty Officer at the police station and recorded the
same as DD No.18A. He handed over the same to Const. Kalu
Ram to be handed over to SI Pratap Singh, who had already left
the police station to attend another call.
24. SI Pratap Singh appearing as PW21 deposed that on
receipt of DD No.18A through Const. Kalu Ram, he alongwith HC
Yashpal and Const. Kalu Ram reached the aforesaid spot. They
saw the dead body in a plastic bag (Bori) on the corner of canal.
The water level in the canal was about 20 feet below the level of
SC No.157/08. Page 17 of 39its banks. He sent Const. Kalu Ram to the police station for
fetching a rope, gloves, battery and some helpers for taking out
the dead body from the canal. Const. Kalu Ram returned to the
spot alongwith Const. Sat Prakash, Const. Naresh and HC Azad
Prakash. They also brought the aforesaid articles from the police
station. The dead body was taken out of the canal. The head of
the dead body was inside the sack and its feet were protruding
outside the sack and were tied with a rope and PW21 took out the
dead body from the sack and found it to be highly decomposed.
Insects were all over the dead body. The dead body was wearing
a Kurta Pajama. Its hands and knees were tied together by a cloth.
It seemed that the dead body had been thrown in the canal after
having been murdered at some other place. Crime Team was
called, which inspected the whole spot. PW21 also informed the
SHO Sanjiv Parmar, who also reached the spot. PW21 prepared the
rukka, sent it to the police station through HC Azad Prakash
(PW20) and got FIR No.136/04, u/s.302 IPC registered.
25. PW11 was the Duty Officer at P.S. Jaffarpur Kalan, who
registered FIR No.136/04, u/s.302/201 IPC on 20.9.2004.
26. PW31, the SHO P.S. Jaffarpur Kalan, Inspector Sanjiv
Parmar had taken over the investigation of this case after
registration of the FIR. He prepared site plan Ex.PW31/A and also
the inquest papers regarding the dead body. He sent the dead
body to Mortuary for preservation. The next day, the investigation
was handed over to Inspector Nand Kumar. In the cross
examination, he deposed that the dead body was wearing a Kurta
Pajama, but could not tell its colour. He did not conduct the
SC No.157/08. Page 18 of 39search of the cloth of the dead body.
27. SI Ravinder Singh, Incharge Mobile Crime Team, South
West District, New Delhi, has been examined as PW25. He had
reached the spot alongwith staff on the asking of SHO, P.S.
Jaffarpur Kalan. On reaching the spot, he found a dead body lying
in the water in a bag and the dead body was taken out from the
canal in his presence. According to him, the photographer of the
Crime Team took photographs of the dead body. He prepared his
report which he proved as Ex.PW25/A. In the cross examination,
he reiterated that when he reached the spot, the dead body was
still inside the water. The dead body was at a distance of 50
meters from the bank of the canal. Photographs of the dead body
were got taken while it was still lying inside the water. The dead
body was highly decomposed. However, he could not say whether
the skin of the dead body was peeled off or not. He did not
recollect whether the skin was present around cheek bone of the
dead body. He also did not remember whether hairs of the dead
body were intact at that time or not. He admitted that the
maggots of the dead body have to be preserved in order to
ascertain the time since death but in this case, the maggots of the
dead body were not preserved.
28. PW30 was the photographer of the Mobile Crime
Team, who reached the spot. He had taken seven photographs of
the dead body, which he proved as Ex.PW31/B1 to Ex.PW31/B7.
He produced their negatives also which are Ex.PW30/A1 to
Ex.PW30/A7. According to him, the dead body had already been
taken out from the drain and was lying on the rough earth, when
SC No.157/08. Page 19 of 39he reached the spot. He did not take photographs of the place
from where the dead body was taken out. The dead body was wet
at that time but it was not washed or cleaned in his presence.
29. Inspector Nand Kumar, to whom the investigation of
the case FIR No.136/04 was handed over to 21.9.04 has been
examined as PW10. According to him, till that day, the dead body
was still in DDU Hospital Mortuary and unidentified. He got the
dead body photographed for the purpose of identification through
a private photographer (PW15). He prepared brief facts of the case
for the purpose of postmortem examination (Ex.PW10/B) and also
submitted an application for postmortem of the dead body which
is Ex.PW10/C. He got the postmortem of the dead body conducted
on 23.9.04. The doctor handed over to him Kurta Pajama found
upon the dead body and a sealed pullinda containing one rope
found tied on the legs of the deceased, one chunni found tied on
the neck of the deceased, one cloth piece found tied on the hands
of the deceased and one gunny bag in which the dead body was
found packed. The doctor also handed over to him four sealed jars
containing two teeth, two nails, hair and flesh piece of the
deceased, for the purpose of DNA profiling. Two other steel jars
were also handed over to him by autopsy doctor, which contained
viscera of the deceased. He made efforts for identification of the
dead body, but could not succeed. He further deposed that on
22.10.2004 one Rambir alongwith Sudhir came to the police
station Jaffarpur Kalan and met him. They told him that their
brother Rajbir is missing. He showed them the photograph of the
dead body, the clothes found on the dead body but they could not
identify the dead body and and the clothes. As per his further
SC No.157/08. Page 20 of 39deposition, Rambir and his father Balbir again came to the police
station Jaffarpur Kalan on 29.10.2004 and they were again shown
the photographs of the dead body and the clothes found on the
dead body. They requested for DNA testing. He thereupon sent
four sealed pullindas containing teeth, nails, hairs, flesh piece of
the deceased to CDFD, Hyderabad, for DNA fingerprinting. On
16.10.2005 the blood sample of Sh. Balbir Singh and Smt. Jermanti
were taken before Sh. Sanjeev Jain, Ld. M.M. by Dr. Sunita Solanki
of RTRM Hospital. The samples were sealed with the seal of Ld.
M.M. and were sent to CDFD, Hyderabad, after being preserved in
the dry ice. He received the report of the DNA fingerprinting on
22.6.05 which is Ex.PW10/D. He thereafter sent the entire case
file alongwith documents to SHO, P.S. Kapashera, for further
investigation as the dead body was found to be related to FIR NO.
214/04, P.S. Kapashera i.e. the instant case.
30. According to PW15, the private photographer, he was
summoned by HC Ajaib Singh and he took two photographs of the
dead body in DDU Hospital. Ironically, those two photographs are
not on court file. The witness only proved the negatives of those
photographs as Mark-PW15/A and Mark-PW15/B.
31. So far as the identification of the dead body is
concerned, PW4 Rambir Singh, who is brother of the deceased
Rajbir, has deposed in his examination in chief as under:
“On 19.9.2004 an unclaimed dead body has been
found. Nobody claimed it. The news about the same
had spread everywhere. I also went there in October
or November. I went to P.S. Jaffarpur Kalan. Additional
SC No.157/08. Page 21 of 39SHO Nand Kumar showed me the clothes and
photographs. One underwear, one baniyan, Kurta
Pajama were among the clothes. My two brothers did
not wear Kurta Pajama. Underwear and baniyan were
that of my brother Rajbir, which I identify clearly.”
32. PW4 also identified the blue colour torn underwear and
a torn baniyan when shown to him during his testimony in court.
Same are Ex.PW4/5 and Ex.PW4/6 respectively. At the same time,
in the cross examination, he admitted that he and Rajbir Singh had
separate houses. He did not recollect since when Rajbir Singh has
been residing separately. He could not tell whether it was for six
months or one year or 10 years before disappearance of Rajbir.
He also admitted that he had not mentioned the colour of the
underwear and baniyan worn by Rajbir, in the missing report. At
another place in the cross examination, he admitted that in the
bail application filed by him in case FIR No.243/04, u/s.307 IPC got
registered against him and his family members by accused
Kamlesh, they had mentioned that they have no relation with
Rajbir and his wife for the last eight years and they have been
residing separately and also have a separate ration card as well as
separate electricity and water connections. He further stated that
Rajbir had separated from them when he was still a child.
33. On this aspect, PW9 has deposed that he also went to
P.S. Jaffarpur Kalan and asked the SHO to show him the clohtes
found on the dead body. Clothes were shown to him and his son,
who was with him at that time. It was sky blue colour underwear
and white banyan which he identified to be of Rajbir. In the cross
examination, he stated that Rajbir did not stay with them for even
a single day after marriage. According to him, Rajbir had built up
SC No.157/08. Page 22 of 39his own house and was residing there, which house was at a far
distance from his house. He never used to visit house of Rajbir
and Rajbir never used to come to meet him. He further deposed
that nobody from his family used to visit house of Rajbir.
34. One fails to understand how could PW4 and PW9
identify the underwear and banyan of Rajbir when he was residing
separately from them for the past several years, in a separate
distant house. The underwear and banyan of a peson can be
recognised by that person, who has been very close and intimate
to the former and who had the occasion to see the former only
wearing undergarments. These two witnesses were not on visiting
terms with Rajbir's family and Rajbir would not have been roaming
in the streets clad only in undergarments. Thus, there was no
occasion for these two witnesses to observe the undergarments of
Rajbir. So there arose no possibility of their identifying the
undergarments found on the dead body to be those of Rajbir.
Manifestly, these two witnesses have lied in this regard to the
police as well as in the court.
35. Now it is also the case of prosecution that the identity
of the dead body has been established by comparison of its DNA
with that of Rajbir's parents in CDFD Laboratory, Hyerdabad, and
the DNA report shows that the dead body was of the biological son
of Rajbir's parents and hence it could be of nobody else than
Rajbir. It cannot be disputed that in the past 20 years, DNA typing
has enhanced the ability of the forensic scientists to characterize
biological evidence and has greatly influenced the way the law
enforcement community conducts criminal investigations.
SC No.157/08. Page 23 of 3936. DNA plays an important role in modern forensic
science. Today, DNA fingerprinting has become one of the
primary methods of identifying people and solving crimes. DNA
stands for Deoxyribonucleic Acid. It is the genetic material of a
human cell. It can also be described as the blueprint of an
organism. DNA is contained in blood, semen, skin cells, tissues,
organs, muscle, brain cells, bone, teeth, hair, saliva, mucus,
perspiration, fingernails, urine, feces etc.
37. The chemical structure of everyone's DNA is the same.
The only difference between people is the order of base pairs.
There are so many millions of base pairs in each person's DNA that
every person has a different sequence. From these sequences
every person could be identified solely by the sequence of their
base pairs. Instead, scientists are able to use a shorter method
due to repeating patterns in DNA. These patterns do not,
however, give an individual “fingerprint” but they are able to
determine whether two DNA samples are from the same person,
related people, or non related people. This is called DNA
fingerprinting or profiling.
38. In the instant case, it is manifest from the deposition
of PW21 and PW25 that the dead body was found in water in a
drain and was highly decomposed. Maggots had also appeared on
it. Postmortem report Ex.PW28/A also mentions as under :
“Rigor Mortis passed off. PM liquidity not evident.
Greenish disorientation of whole body. Eyes softened
and destroyed. Soft tissues of some parts of scalp and
SC No.157/08. Page 24 of 39face decomposed and eaten by Maggots. Blobs are
present with skin peeling. Hairs are loosened.
Maggots are moving all over the body. Abdomen
distended. Bloating & disfigurement seen. No
external injury seen.”
39. Postmortem had been done on 23.09.2004 and time
since death has been opined as 5 to 6 days before the date of
postmortem examination. The autopsy doctor had sealed the
muscle piece, two nails, two teeth and scalp hair in four separate
jars which he handed over to the then IO PW10 and which fact is
confirmed by PW10 in his testimony. PW10 then sent these for
DNA fingerprinting and examination to CDFD Laboratory,
Hyderabad, on 29.11.2004 through PW24, after PW4 and PW9
approached him on 22.10.2004 and claimed the dead body to be
that of Rajbir.
40. Dr. M.M. Narnaware, who had conducted the
postmortem examination of the dead body could not be examined
as he had expired before he was summoned for his testimony. In
his place, Dr. B.N. Mishra entered the witness box as he had
worked with Dr. Narnaware and could identify his handwriting. He
proved the postmortem report as Ex.PW28/A. Since Dr. Narnaware
was not available for his testimony, it could not be known as to
from which part of body did he take the muscle piece for DNA
testing and whether or not it was decomposed and if so, to what
extent. Nothing is mentioned in this regard in the PM report.
41. Dr. B.N. Mishra, appearing as PW28, has deposed that
for the purpose of DNA fingerprinting, usually the piece of sternum
SC No.157/08. Page 25 of 39bone is preserved, however, any other specimen also is preserved
depending upon the condition of the body alongwith other
available specimen for the purpose of corroborative evidence.
Evidently, in this case, sternum bone has not been preserved for
DNA fingerprinting and it remains a mystery why it has not been
42. As said herein-above, the muscle piece, hair, nails and
teeth of the dead body were sealed by the autopsy doctor on
23..09.2004 i.e. the day when he conducted postmortem, and
handed over sealed jars to PW10. Thereafter, the sealed jars
remained in police station till 29.11.2004 i.e. for more than two
months, when the IO sent these to CDFD Hyderabad through
PW24. There is no evidence on record to the effect that these
samples were preserved properly in the police station at required
temperature in order to prevent their further decomposition or
43. Dr. D.S. Negi, the Technical Examiner in CDFD
Laboratory, Hyerabad, appeared as PW17 for the prosecution. He
had extracted the DNA from the samples of dead body and
compared the same with the DNA of the parents of Rajbir and had
prepared report Ex.PW17/A. According to him, the muscle piece
only yielded DNA and the other samples of the dead body i.e.
teeth, hair and nails did not yield for DNA testing. He deposed
that Micro satellite Loci was used for DNA profiling of the sample.
The DNA profile was prepared and analysis carried out using scan
and genotype software. He further deposed that DNA profile of
the piece of muscle matched with the DNA profile of the source of
SC No.157/08. Page 26 of 39exhibits i.e. blood sample of Smt. Jermanti and Balbir Singh, the
parents of Rajbir. It is on the basis of the report Ex.PW17/A
prepared by this witness that the prosecution asserts confidently
that that dead body was that of Rajbir only.
44. I do not agree with the findings contained in the report
Ex.PW17/A. It is a matter of common knowledge and has been
admitted by PW17 also in his cross examination that if the
environmental condition is humid and wet, allowing growth of
microorganisms, then the decay of the muscle would be faster
than nails, teeth and hair which are comparatively harder and
more resistant than the muscles of the body. In the instant case,
admittedly the dead body was found in water in a drain and it had
been lying that for the past about 6 – 7 days. It had been eaten by
maggots and maggots were present all over the body. Then, how
come, the muscle piece had not decayed/decomposed and yielded
DNA but the hair, nails and teeth did not yield DNA. However, it is
pertinent to note here that it is nowhere mentioned in the report
that teeth, hair and nails had become decomposed. No specific
reason is mentioned in the report Ex.PW17/A why did not teeth,
hair and nails yield DNA. PW17 also could not give any specific
reason for the same during his testimony.
45. Further, as per literature downloaded by me from the
internet (goggle search), in cases where a DNA sample is either
highly degraded, compromised by sample impurities or present in
small traces, STR analysis (used in this case) cannot be used to
identify the contributor to exclude those who may be falsely
associated with the evidence. Analysis of degraded or
SC No.157/08. Page 27 of 39compromised DNA samples often result in dropout of the layer
molecular weight loci resulting in partial or no results. To obtain
the highest probative value possible from any sample analysis,
and to maintain high discrimination power, it is important that
larger weight genetic markers successfully amplify. The loss of
these larger STR loci reduces the power of identification, whcih
can result in cases continuing to be unsolved.
46. Theory and empirical studies reveal that successful
analysis of highly degraded DNA specimens, like those found at
mass disaster and crime scenes, improves with smaller sized PCR
products. Therefore, an innovative approach was explored that
exploits the ability to design premiers that reside closer to the
target STR. This miniSTR process reduces the size of amplicons,
which increases the detection of DNA by focusing on smaller size
fragments providing the best opportunity to obtain results from
47. One of the first examples in which miniSTR technology
was applied to forensic sample processing occurred over a decade
ago by the Forensic Science Service of USA. They used miniSTR
analysis and time-of-flight mass spectrometry to detect and
characterize STR loci in small fragments of DNA resulting from
exposure to extreme heat. Their experience demonstrated that
analysis using miniSTRs dramatically increases the sensitivity of
DNA detection. Hellman and others brought miniSTRs into the
mainstream by converting the technology so that it would be
compatible with current STR typing systems. MiniSTR primers
were labeled with fluorescent dyes and the amplified products
SC No.157/08. Page 28 of 39detected by capillary electrophoresis and laser excitation.
Thereby, a practical miniSTR technology was created. Because of
the ability to type very degraded samples, miniSTR technology can
be expected to provide forensic scientists with another tool that
captures genetic data from DNA samples of marginal and
extremely low quality and quantity. MiniSTR technology offers the
power to make identifications from what were once considered
“proof” quality samples or those that required substantial
manipulation. Perhaps even low copy number testing will become
48. Most DNA is located in the cell nucleus (where it is
called nuclear DNA), but a small amount of DNA can also be found
in the mitochondria, where it is called mitochondrial DNA or
mtDNA. For highly degraded samples, it is sometimes impossible
to get a complete profile of the 13 CODIS STRs. In these
situations, mitochondrial DNA (mtDNA) is sometimes typed due to
there being many copies of mtDNA. Forensic scientists amplify the
HV1 and HV2 regions of the mtDNA, then sequence each region
and compare single nucleotide differences to a reference.
Because mtDNA is maternally inherited, directed linked maternal
relatives can be used as match references.
49. The aforesaid literature on DNA fingerprinting and
typing reveals that Microsatellite loci technology used in this case
could not have yielded accurate results as the sample i.e. muscle
piece was highly decomposed and decayed. It is expected that
the laboratory at Hyderabad would expand its analytical capacity
to include mini STR testing and mitochondrial DNA (mtDNA)
SC No.157/08. Page 29 of 39Typing for DNA fingerprinting of decomposed samples, which will
enhance the accuracy and acceptability of its reports.
50. In my view the DNA testing conducted in the present
case is flawed and the report Ex.PW17/A is not reliable. It is
fraught with doubts. Hence, I find that there is no credible
evidence on record to demonstrate that the dead body found in
drain at Mundela Khurd was that of Rajbir.
51. Having said so, let me assume that the aforesaid dead
body was that of Rajbir and take up for determination the issue no.
2 framed by me in the earlier part of the judgment, which is as
“Whether Rajbir was kidnapped and killed by a well
52. In this regard, the prosecution case rests upon the
disclosure statement made by accused Khilender in case FIR No.
247/05, u/s.25 of Arms Act, P.S. Delhi Cantt., last seen evidence of
PW1, extra judicial confession made by accused Vidya Devi to PW2
and the testimony of PW4, who deposed that the Kurta Pajama
found on the dead body was that of Sh. Raghubir and the Biri
packet of make 'Trishul' found in the pocket of Kurta used to be
smoked by Raghubir.
53. It will not be out of place to mention here that the
police was without any clue about the alleged killers of Rajbir till
24.7.2005 when the IO Inspector Ramesh Chander (PW38) got
information from P.S. Delhi Cantt., that accused Khilender has
SC No.157/08. Page 30 of 39been arrested in case FIR No.247/05 and he has disclosed that he
alongwith his associates has killed Rajbir, son of Sh. Balbir and
thrown his dead body in the canal at village Mundela Khurd near
Toll Tax Barrier in order to destroy the evidence. This disclosure
statement of accused Khilender was recorded by PW18 ASI Babu
Lal and is Ex.PW18/A. As per testimony of PW38, on receipt of
aforesaid information from P.S. Delhi Cantt. he alongwith SI Nanak
Chand, SI Mahender Singh and other staff reached P.S. Delhi
Cantt., where HC Babu Lal (PW18) handed over to him the copy of
disclosure statement Ex.PW18/A of accused Khilender, copy of
seizure memo of car no.DL-9CD-0831 and also produced accused
Khilender before him. PW38 interrogated accused Khilender and
arrested him in the present case vide arrest memo Ex.PW16/A and
also recorded his disclosure statement Ex.PW16/E. In this
disclosure statement, accused Khilender is stated to have
disclosed that he called deceased Rajbir to his house on
17.7.2004, according to a plan hatched with the other accused to
eliminate him. He kept accused Kamlesh and accused Suresh Devi
as guard outside the house, whereas he alongwith accused Vidya
and accused Ramesh went to the room where Rajbir was sitting on
the first floor of the house, soon on entering the room, he hit Rajbir
on his head with a wooden rod 20 to 25 times. Rajbir got severely
injured and fell on the floor. Accused Vidya Devi and Ramesh
strangled Rajbir with a Chunni. He then alongwith accused Ramesh
put on a Kurta Pajama on the dead body of Rajbir, put the same in
a plastic bag after tying its hands and legs and took the dead body
in his Maruti Car no.DL-9CD-0831 up to the drain and threw the
same into the drain.
SC No.157/08. Page 31 of 3954. The aforesaid disclosure statement of accused
Khilender is the foundation of the prosecution case, however
prosecution is precluded from placing any reliance upon the same
for the reason that the said disclosure statement is totally
inadmissible in evidence in view of the bar contained in section 25
of the Evidence Act as no fact got discovered or recovered
pursuant to the same. Apart from this, there is a marked
contradiction or inconsistency between the contents of disclosure
statement and the medical evidence i.e. postmortem report. As
per disclosure statement Ex.PW16/E, Rajbir was hit on his head by
accused Khilender by a wooden rod 20 – 25 times and Rajbir had
got severe head injuries. To the contrary the postmortem report
shows that no head injury was seen on the dead body found in the
canal of village Mundela Khurd, which is reiterated by PW28 in his
cross examination. This leads us to two conclusions i.e. either the
disclosure statement Ex.PW16/E has been manipulated by the
Investigating Officer in the zeal to solve the mystery regarding
disappearance of Rajbir at the earliest or that the dead body found
in the canal at village Mundela Khurd was not that of Rajbir. In
any case, the prosecution version gets falsified and the basic pillar
of the prosecution case gets razed to ground.
55. So far as the confession made by accused Vidya Devi
to PW2 is concerned, it may be noted that PW2 has turned
completely hostile and did not support the prosecution case in this
regard. He was extensively cross examined by Ld. APP and he
denied all the suggestion put to him in his cross examination.
Thus another pillar of the prosecution case also falls.
SC No.157/08. Page 32 of 3956. Coming to another pillar of the prosecution case,
which is the last seen evidence of PW1. According to PW1, he had
seen Rajbir going to village Dichau on his scooter on 17.7.2004.
He met Rajbir at Petrol Pump Najafgarh Nangloi road at 4 p.m. he
was on his motorcycle and both were driving side by side while
talking to each other. He left Rajbir in village Dichau in front of a
house. While talking, Rajbir told him that his wife has come
without telling him and he has come to see her. In the cross
examination, he has deposed that Rambir (PW4) was his classfellow of Xth Class and he was on visiting terms to his house. He
might have visited the house of Rambir about 7 – 8 times from
July, 2004 to January, 2005. Rambir used to meet him during this
period after every 3 – 4 days. He had visited the house of Rambir
on 20.7.2004 and stated in his presence of entire family that he
had seen Rajbir on 17.7.2004 at Petrol Pump Najafgarh.
57. I wonder how the prosecution has projected the
testimony of this witness as last seen evidence. No doubt, it
appears that this witness had seen Rajbir on 17.7.2004 going
towards village Dichau and left him in front of a house in the
village, but he nowhere states that he had seen Rajbir entering the
house of his in-laws i.e. house of accused Khilender, Suresh and
Vidya Devi. Though his statement was recorded by the police, yet
the Investigating Officer did not bother to take him to the house in
front of which he had left Rajbir in order to ascertain whether or
not the house was that of the accused. Hence, there is nothing in
the testimony of this witness to suggest with certainty that he had
left Rajbir in front of the house of the accused.
SC No.157/08. Page 33 of 3958. This brings me to the testimony of the star witness of
the prosecution namely Rambir (PW4), brother of Rajbir. A minute
scrutiny of his deposition reveals that he is not a truthful and
reliable witness. His deposition is based only upon surmises and
conjunctures. His deposition throws many questions than it
answers. He has started his deposition by saying that on
17.7.2004 his brother Rajbir had gone to his in-laws' house at
Dichau Kalan after informing them and also took the keys of the
house with him. This is not believable in view of my observations
contained in para 34 of this judgment herein-above. There was no
occasion for Rajbir to inform this witness or his parents about his
intention of going to his in-laws house when he was not on visiting
terms to them and had been residing separately from them since a
very long time. This witness has admitted at page 5 of cross
examination dated 26.10.2010 that PW1 met him four times
between 17.7.2004 to 20.7.2004. PW1 also met him two or three
times between 02.9.2004 and 24.9.2004. He admitted that he and
PW1 were studying in same school till Xth class and the house of
PW1 is about 300 to 400 meters away from his house. The witness
further states that he knew before 02.9.2004 that PW1 had seen
his brother Rajbir going to his in-laws' house. Ironically, this
witness has nowhere stated so in his missing report dated
02.9.2009 which has been reproduced in para 4 of this judgment
herein-above. Similarly, PW9 also is silent about this fact in his
statement dated 21.9.2004 recorded in the police station, on the
basis of which FIR was registered in this case, which also has been
reproduced in para 5 of this judgment herein-above. PW4 has
himself deposed in his examination in chief that PW1 had come to
their house in the evening of 20.7.2004 and stated in front of all
SC No.157/08. Page 34 of 39the family members that he had left Rajbir at Dichau Kalan at his
in-laws' house. This was a very material piece of information
available with PW4 and PW9 but strangely they chose not to share
the same with the police. This makes evident that either there
was no such information given to them by PW1 or they themselves
did not believe it to be true.
59. The conduct of this witness PW4 also seems to be far
from being fair and free from suspicion. As noticed herein-above,
he has stated that Rajbir had informed him on 17.7.2004 that he is
going to his in-laws' house and next day i.e. on 18.7.2004 only
Rajbir's wife Kamlesh came to the house alongwith accused
Khilender and her daughter. It is the consistent stand of PW4 that
Rajbir did not return to his house thereafter and was not seen
thereafter. Still this witness remained in sound sleep and did not
report the matter to the police till 02.9.2004. The reason for such
delayed reporting of the matter to the police has nowhere been
explained. Such delay assumes importance in the wake of the
statement of PW4 that PW1 had informed them on 20.7.2004 that
he had seen Rajbir going to his in-laws' house on 17.7.2004. Even
in the statement dated 24.9.2004 given by PW9 to the police
which forms the foundation of the FIR in this case, it is nowhere
stated that they suspected the hands of in-laws of Rajbir in his
disappearance. An impression is therefore gathered that neither
PW4 nor PW9 were certain and sure in their minds that Rajbir has
been kidnapped by his in-laws.
60. According to PW4, he came to know that Rajbir has
been killed by his in-laws as he recognised the Kurta Pajama found
SC No.157/08. Page 35 of 39worn upon the alleged dead body of Rajbir to be that of his fatherin-law namely Raghubir. According to him, such type of Kurta
Pajama used to be worn by only Raghubir Singh and therefore, he
recognised it to be that of Raghubir Singh. In this regard, the
statement of this witness PW4 in his cross examination is material
and is reproduced herein below :
“Raghubir Singh, who is the father in law of my
brother Rajbir, was not doing any work in the year
2004 as he is in old age. I met Raghubir Singh for the
last time about six months before 17.7.2004 at his
home. It was just a courtesy visit. I was alone at that
time. It is correct that Raghubir Singh had suffered
injuries in a road accident on account of which he has
become paralytic and is bed ridden much before the
year 2004. I used to meet Raghubir Singh before the
aforesaid visit also. I cannot say how tall was Raghubir
Singh. I cannot admit or deny the suggestion that his
height was five and a half feet. It is wrong to suggest
that Raghubir Singh has never worn pyjama in his
lifetime. I did not measure the length of pyjama or
kurta which was found worn by the dead body
recovered in this case. I can say that Raghubir Singh
used to wear kurta pyjama but I cannot say of which
Q. What was the fabric of the kurta pyjama worn
by the dead body recovered in this case?
Ans. Raghubir Singh used to wear same type of
kurta pyjama which I have seen in Jaffarpur
I identified the aforesaid kurta pyjama to be that
of Raghubir Singh only for the reason that a packet of
bidi of Trishul brand was found in the pocket of kurta. I
had been shown the aforesaid kurta pyjama for the
first time in Jaffarpur police station in the last week of
SC No.157/08. Page 36 of 3961. From the aforesaid statement of PW4 in his cross
examination, it is evident that he did not recognise Kurta Pajama
to be that of Sh. Raghubir Singh by its colour, type or length etc.
but only because a packet of Biri of Trishul brand was found in the
pocket of Kurta, which according to him, used to be smoked only
by Raghubir Singh. In my opinion, this statement of PW4 is
completely unbelievable for various reasons. Firstly, he nowhere
states in his testimony that he had seen Raghubir Singh smoking
Biri of Trishul brand at any point of time. Secondly, Biri of Trishul
brand cannot be taken to be smoken only by Raghubir Singh and
not by anybody else. It is a popular brand of Biri in the North India
and thousands, if not lakhs, of people, would be smoking this
brand of Biri. Thirdly, PW21, PW25, PW30, PW31, who had seen
the dead body first of all and had taken out the same from the
drain, nowhere deposed that they had seen or taken out an empty
packet of Trishul brand Biri from the pocket of Kurta found on the
dead body. Similarly, PW10, who had shown Kurta Pajama to PW4
and PW9 in the police station nowhere states that a packet of
Trishul brand Biri was in the pocket of Kurta and it also was shown
to them. Fourthly, as mentioned herein-above, the dead body had
been lying in the drain for about 6 to 7 days and it was highly
decomposed. It is very difficult to accept that an empty Biri
packet, which is made of thin paper, could survive and be intact
even after remaining in water for about six days. It is for these
reasons, I am unable to accept that any Biri packet was found in
the Kurta of the dead body and the Kurta Pajama can in any way
be linked to Sh. Raghubir Singh, father-in-law of Rajbir.
62. it is also relevant to note here with intense dismay
SC No.157/08. Page 37 of 39that the investigating officer has made no efforts to verify the
claim of PW4 that the Kurta Pajama was of Raghubir. He never
interrogated Raghubir in this regard nor compared his height with
the length of Kurta Pajama to ascertain whether, in fact, it would
fit Raghubir. It is apparent that the investigating officer either
lacked investigating techniques or deliberately conducted shoddy
63. It will not be out of place to mention here that all the
defence witnesses have stated that Raghubir Singh never wore
Kurta Pajama and never smoked Trishul brand Biri. Hence, the
important link of the prosecution case, connecting the accused to
the disappearance and murder of Rajbir fails.
64. Much was harped by the Ld. APP for State upon the
strained relations between Rajbir and his wife accused Kamlesh
and also upon the letter Ex.PW4/1 allegedly written by Rajbir on
08.9.1991 to persuade me in believing that only Kamlesh and her
parental family had the reason and motive to kill Rajbir. With
regard to these submissions of Ld. APP, it is to be noted that there
is no independent evidence on record to demonstrate that
relations between Rajbir and accused Kamlesh were strained to
the extent that accused Kamlesh intended to eliminate Rajbir. So
far as the Ex.PW4/1 is concerned, it is too remote in time to be
linked with the disappearance and murder of Rajbir. Letter is
dated 08.9.1991, whereas Rajbir had disappeared on 17.7.2004
i.e. almost after about five years. Further, it may be said that in
this letter Rajbir has mentioned that his wife accused Kamlesh had
illicit relations with Dr. Rakesh of Najafgarh, Vijender of Dichau
SC No.157/08. Page 38 of 39Kalan and Krishan of Dichau Kalan and had gone on to write that if
he dies, these three would be responsible for his death. There is
no evidence on record to show that Rajbir had filed any criminal
complaint against his wife i.e. accused Kamlesh or any of the three
persons regarding their aforesaid illicit acts. Most importantly, it is
not clear in what context had Rajbir written Ex.PW4/1. It is not in
the shape of any letter as it is not addressed to anybody. So how
and in what context did he write this document is not evident from
65. It may also be noted that motive alone is not sufficient
to render conviction for the offence of murder u/s.302 IPC, when
the prosecution has failed to produce sufficient and cogent
evidence regarding involvement of the accused in the kidnapping
and alleged murder of Rajbir.
66. I, therefore, conclude by saying that the prosecution
has failed to prove the charges against any of the accused. The
accused are liable to be acquitted and are hereby acquitted as
67. A copy of this judgment be sent to CDFD Laboratory,
Hyderabad, with the direction to go through paragraphs no.35 to
49 of the judgment and with the hope that the persons concerned
would take steps to expand its analytical capacity so as to
enhance the accuracy and acceptability of its reports.
Announced in open (VIRENDER BHAT)
Court on 06.6.2012. A.S.J. :Dwarka Courts
SC No.157/08. Page 39 of 39