Delhi District Court
State vs . Kanehya Kumar Singh Sc No. 14 Of 2010 ... on 31 October, 2012
ID No. 02403R0194172010
IN THE COURT OF SH. VINAY KUMAR KHANNA:
ADDITIONAL SESSIONS JUDGE - 04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 147/2010
Unique ID No. 02403R0194172010
FIR No. 72/2010
U/s 302 IPC
PS : Okhla Industrial Area
State
Versus
Kanehya Kumar Singh,
s/o Shripati Singh,
r/o Village and PO Nawada,
PS Sahara, District Aara, Bhojpur ..........Accused
Instituted on : 06th July, 2010
Argued on : 09th October, 2012
Decided on : 15th October, 2012
J U D G M E N T
Brief facts
1. Accused in this case was charged for commission of the offence punishable u/s 302 IPC. In brief, case of prosecution is that, at about 11:40 am, on 16.02.2010, DD No. 8A was recorded to the effect that a security guard had run away after committing theft at DSIDC Shed No. 28, Okhla Industrial Area (OIAII), New Delhi. On receipt of the call, Head Constable Vijay Pal reached at the spot. In the meantime, another call recorded vide DD No.11A, was received whereby it was informed that earlier an information was given regarding theft, but inside the factory, one person was seen lying in an unconscious condition, who appeared to have died. This call was marked to Assistant SubInspector Shiv Kumar, who reached at the place of occurrence. Main gate of the factory at Shed No. 28, SchemeIII was found State Vs. Kanehya Kumar Singh SC No. 14 of 2010 1/31 ID No. 02403R0194172010 bolted from inside. They entered inside the factory from the rear gate. There were two rooms on their right side, one kitchen and a bathroom on the left side. In between, there was a corridor, where one dead body was found lying on the floor. One muffler was found tied tightly on the neck of dead body. Complainant Manjeet Kumar Yadav, informed the name of deceased as Awdesh Kumar Mishra, who was a security guard of the said factory. Blood had oozed from the nose and mouth of deceased and also spread on the floor alongside his head. One set of artificial teeth and a single hawai chappal of right foot were found lying near the right hand of deceased. Another Hawai chappal of left foot was lying near the toilet in the corridor. Crime team as well as IO inspected the spot and photographer took photographs of the scene of crime. IO recorded statement of complainant Manjeet Kumar and made endorsement thereon. He sent it to the Police Station through Head Constable Vijay Pal for registration of FIR. IO conducted cursory search of dead body. One mobile phone was found under the wearing shirt attached with a black colour thread in the neck of dead body. One raxine purse was found in the wearing pant of deceased containing Rs.32/ cash and some pieces of documents. IO sent the dead body to AIIMS Mortuary through Constable Manoj for getting it preserved. IO made local inquiries at the spot. In the meantime, Head Constable Vijay Pal brought copy of the FIR and original rukka, at the spot. IO prepared site plan at the instance of complainant Manjeet Kumar Yadav and lifted exhibits e.g. blood sample from the face of deceased and blood lying near the foot of deceased. He collected earth control from the spot. IO made inquiries about the guard and about the visitors in the factory from one Ramchander Mukhia, Pradhan of Jhuggies cluster, who was having a tea stallcumPCO just adjoining the gate of the factory. IO alongwith Assistant SubInspector Shiv Kumar left the spot State Vs. Kanehya Kumar Singh SC No. 14 of 2010 2/31 ID No. 02403R0194172010 alongwith all seized articles and tried to trace out the accused at Sanjay Colony in OIAII. Case property was deposited in the malkhana. IO alongwith other police officials reached at G.B. Pant Polytechnic in order to trace the culprit, where one secret informer informed them that Kanehya, whom they were tracing would pass through, near the G. B. Pant Polytechnic. While tracing accused Kanehya, they reached on the road in front of the G.B. Pant Polytechnic, at the instance of the informer, accused was apprehended by them. IO recorded disclosure statement of accused. Pursuant to which, IO reached at G67, Harkesh Nagar, the tenanted accommodation where accused Kanehya was residing from where accused Kanehya got recovered one hand bag of raxeen from behind the Photo Frame of Goddess Laxmi. On opening hand bag contained Rs.1,600/, photograph of deceased Avdesh Kumar Mishra, one bank paying slip of SBI in the name of Kavita i.e. wife of deceased and account No. 30853738602, one telephone diary on which name of deceased Avdesh Kumar Mishra was mentioned, one ball point pen, one ladies wrist watch and three packet on which Bhola Munakka was printed having bhaang, one underwear was also recovered found lying over the Takht. IO seized all these articles as well as a Sonata Man Wrist Watch of golden colour at the pointing out of accused. At the place of occurrence i.e. Shed No. 28, DSIDC, OIAII, a pointing out memo was prepared at the instance of accused. In the meantime, Ram Chander Mukhiya, Pradhan reached there and on seeing the accused, he identified him as the person who used to work with deceased Avdesh Kumar Mishra in Shed No. 28, DSIDC, OIAII. Ram Chander Mukhiya further informed him that the accused Kanehya was seen with the deceased in the factory i.e. at the place of occurrence at about 5/6 PM on 14.02.2010.
2. IO got accused Kanehya medically examined from ESI Hospital State Vs. Kanehya Kumar Singh SC No. 14 of 2010 3/31 ID No. 02403R0194172010 on 17.02.2010. Sealed parcels received from Hospital were deposited in the Malkhana. IO made inquiries from the owner of the factory i.e. Shed No. 28, DSIDC, OIAII, who was present in the Police Station. On 18.02.2010, IO took accused Kanehya Kumar Singh alongwith Head Constable Suresh Chand and Constable Harender to AIIMS Hospital, where he was got medically examined in the Department of Forensic Medicine in order to verify the fact regarding commission of sodomy with him by the deceased Avdesh Kumar Mishra. MLC of accused in this regard was collected. Relatives of deceased identified the dead body of the deceased in the mortuary. IO prepared the inquest papers and postmortem was conducted. Paying slip of SBI Bank in the name of Kavita, the wife of deceased recovered from the house of accused was got verified from the SBI Bank at Shivaji Nagar, Gurgaon. On 25.2.2010, IO moved an application before the CMO, Department of Forensic Medicine, AIIMS for seeking subsequent opinion as to whether the muffler found tied in the neck of deceased, could cause the death of deceased and for seeking subsequent opinion as to whether the injuries over neck and hand of accused were scuffle injuries or otherwise and the duration thereof. Pursuant to his request, the opinion dated 09.03.2010 was given by Doctor Sushil Sharma, Senior Resident, Department of Forensic Medicine, AIIMS Hospital. On 31.03.2010, exhibits were sent to FSL. After collecting FSL reports, they were sent to the forensic department, AIIMS Hospital alongwith the postmortem report for obtaining cause of death of the deceased. Doctor opined that the cause of death as asphyxia due to strangulation and ligature injuries, which were antemortem in nature.
3. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 07.05.2010. Case was committed to the Court of Sessions on 29.05.2010. Charge u/s 302 IPC was framed on State Vs. Kanehya Kumar Singh SC No. 14 of 2010 4/31 ID No. 02403R0194172010 14.07.2010 by the Learned Predecessor of this Court. Accused pleaded not guilty and claimed trial.
Charges
4. Point, which emerges for determination in this case is whether during the period between 14.05.2010 to 15.05.2010 at Shed No. 28, DSIDC, Shed Scheme 3, Okhla PhaseII, New Delhi accused committed murder of deceased Awdesh Kumar Mishra?
5. In order to prove the accusations against the accused, prosecution examined twenty two witnesses.
Medical Evidence
6. Doctor Akhilesh Raj (PW1), conducted the postmortem on the dead body of Awdesh Kumar Mishra (deceased). Injuries noted by him in the postmortem are "faint reddish brown ligature mark over middle one third of the neck running horizontally backwards and encircling completely. Width 5 cm. 5 cm from chin and 6 cm from suprasternal notch. 4 cm from right mastoid tip and 5 cm from left mastoid tip. Neck circumference 32 cm. On dissection of neck, there was extra vacation and sub facial hemorrhages. Bruising over neck muscles was present. Thyroid was found fractured and tracheal mucosa congested. Rigor mortis was present over upper limbs. Postmortem staining present over back. In the opinion of Autopsy Surgeon, cause of death was "asphyxia due to strangulation and ligature injuries are opined as 'antimortem in nature. Viscera was preserved to rule out any intoxication". PW1 proved postmortem report (Ex.PW1/A) prepared by him.
7. Doctor Shashank Pooniya (PW19), proved MLC No. CS 11357/2010 pertaining to accused Kanehya Kumar Singh. As per MLC, on 18.02.2010, Kanehya Kumar Singh accused, 21 years, male was brought by Head Constable Suresh Chand, Police Station Okhla to the hospital with alleged history of being a victim of sodomy since 2007. It is noted that there State Vs. Kanehya Kumar Singh SC No. 14 of 2010 5/31 ID No. 02403R0194172010 were about 1012 incidents of anal sex with person since 2007 and deceased having done last anal sex with person (accused) on 14.02.2010 at about 04:30 pm. After that, he strangulated the deceased with the help of muffler and run away. Accused arrested on 17.02.2010, at about 04:05 pm. As per the alleged history of bleeding, per anal was present on first incidence only i.e. in 2007. Discharge, and use of saliva as lubricant present on last anal sex and H/o change of garments is present." On general examination, following injuries were found to be present on the person of accused (i) A grazed scabed abrasion 3.5 X 1 cm present at left aspect of lower back, (ii) A scabed abrasion, scratch 1 X .2cm present at back at right hand, (iii) A scabed abrasion, scratch 1 X .2 cm present at left, lower side of neck, (iv) Two linear, scratch abrasion 3 X .1 cm present at right aspect of middle of neck and (v) An abrasion of size 2 X .2 cm intrupted present at midline of neck, scabbed. Doctor Susheel Sharma (PW22), who examined the patient, was of the considered opinion that the possibility of sodomy could not be ruled out, however there were no visible injuries on the anal region and swabs were preserved to rule out presence of semen and lubricant. Perianal, Perineal and intraanal swabs and blood in gauze were collected, sealed and handed over to the IO along with sample seal. PW22 saw FSL report (Ex.PW19/B) as regards Perianal, Perineal and intraanal swabs and after perusal of this report, he was of the considered opinion that there is no evidence suggestive of recent act of sodomy and alleged history was not consistent with examination findings. According to him, Injury No. 1 to 5 mentioned in the MLC could be the marks of scuffle.
Public Witnesses
8. Sh. Manjeet Singh (PW2), Complainant placed on record statement (Ex.PW2/A) made by him to the police, site plan (Ex.PW2/B), prepared at his instance and the place from where the dead body was found, State Vs. Kanehya Kumar Singh SC No. 14 of 2010 6/31 ID No. 02403R0194172010 (Ex.PW2/C) seizure memo (Ex.PW2/D) vide which police seized articles found near the dead body i.e. Chappal, one diary and one polythene bag containing papers and other articles, seizure memo (Ex.PW2/E) of blood sample, seizure memo (Ex.PW2/F) of chappal, seizure memo (Ex.PW2/G) of earth control, seizure memo (Ex.PW2/H) of blood sample, seizure memo (Ex.PW2/I) of blood stained, seizure memo (Ex.PW2/J) of artificial teeth, seizure memo (Ex.PW2/K) of blood sample. He placed on record ten photographs Ex.PW2/L1 to Ex.PW2/L10 of scene of crime.
9. Sh. Ram Chander (PW3). He is a last scene witness, whose testimony is discussed below.
10. Sh. Sujeet Kumar (PW6). He was working as Assistant Accountant in the factory M/s. Auto Precision Industry at DSIDC, Shed No. 28, Scheme No. 3, OIA, PhaseII. PW6 deposed that the Head Office of the company was at Gurgaon and he visited the factory i.e. place of occurrence on 15.02.2010 at about 09:00 PM and informed, his owner Ajay Kumar Jain (PW7) that there was no response despite knocking the door. On 16.02.2010, he again reached at the factory at about 10:30 am, where Manjeet (PW2) was already found present outside the factory. They both knocked the door of the factory, but no response had come from inside the factory. They both went towards the back side of the factory, where the back door was found bolted from outside. PW6 opened the door and they both entered in the factory and saw the goods were found scattered and Avdhesh Kumar Mishra was found lying in front of the bathroom inside the factory. PW6 deposed that Avdhesh was either unconscious or dead and Manjeet informed the Police. Police arrived and inquired from him at the spot. In cross examination, he informed his employer that the guard was not picking up the phone at about 03:00 pm. State Vs. Kanehya Kumar Singh SC No. 14 of 2010 7/31 ID No. 02403R0194172010
11. Sh. Ajay Kumar Jain (PW7), is owner of the factory situated at DSIDC, Shed No.28, Scheme No. 3, OIA, PhaseII. He deposed that on 13.02.2010, his Assistant Accountant Sujeet Kumar (PW6) had taken the salary of Avdhesh for the month of January, 2010 and handed over the same to Avdhesh. On 15.02.2010, he was out of station and Sujeet Kumar informed him on his mobile phone that one auto driver Mullaji had informed him that Avdhesh did not open the door of the factory as auto driver had to supply some material of packing in the factory. Sujeet told him that he had made several calls on the mobile phone of Awdhesh and the landline mobile of the factory, but no response came from the factory. PW7 directed Sujeet Kumar to go to the factory in the evening and inquire about the matter. At about 07:00 pm, Sujeet Kumar again informed him that he had knocked the door of the factory, but no response had come. He asked Sujeet Kumar to go to his house and directed him to come in the morning at the factory with Sh. Manjeet Kumar, who was known to him and asked him to go to the factory in the morning and told him that Sujeet will meet him at the factory. PW7 deposed that he told Manjeet Kumar, that guard was not opening the door and was not responding on telephone.
12. PW7 deposed that on 16.02.2010 in the morning Sujeet Kumar and Manjeet reached in the factory at OIA. They again knocked the door, but no response came. Thereafter, they entered in the factory from the back door and found Awdhesh Kumar Mishra was lying inside the factory in unconscious condition. PW7 was informed about this fact on his telephone while he was going for darshan of Mahavir Ji in Rajasthan. PW7 deposed that on 17.02.2010, he returned to Delhi and the police. The police had recorded his statement in this regard. PW7 stated that earlier, he asked Awdhesh to keep some other boy for security purpose as he was of old age State Vs. Kanehya Kumar Singh SC No. 14 of 2010 8/31 ID No. 02403R0194172010 and used to remain all alone in the factory. Till his death, Awdhesh, never informed him about engaging/keeping any person with him at the factory. He was cross examined by Learned Addl. PP. In cross examination, PW7 deposed that he did not tell to the police that on 14.02.2010 at about 11/12 noon, Awdhesh Kumar Mishra had told him on telephone at Gurgaon that he had engaged one person Kanehya Kumar Singh, who had earlier i.e. about two three years earlier worked in his factory and left away. He was confronted with portion A to A of the statement (markA) of the witness. He voluntarily stated that about 15 days before his death, deceased Awdhesh had asked him, whether he could engage Kanehya Kumar Singh as Security Guard in the factory, who had earlier worked in the factory, but left before two years ago. PW7 deposed that he told Awdesh (deceased) that why he wanted to engage and keep the person, who had already left their factory, but Awdhesh insisted that he was all right and he could work with him, then he permitted him to keep that person i.e. Kanehya Kumar Singh (accused) and thereafter, he did not tell him as to whether he has engaged Kanehya Kumar Singh or not.
13. Sh. Ajay Bhushan Vohra (PW10), Branch Manager, State Bank of India, Shivaji Nagar, Gurgaon, produced record i.e. original voucher and statement of transactions of Kavita Devi wife of Awdesh Kuamr Mishra (deceased). He placed on record attested copy of voucher pertaining to the deposit of Rs.1,000/ (Ex.PW10/A) and copy of statement of accused no. 30853738602 pertaining to Ms. Kavita Devi (Ex.PW10/B). Police Witnesses
14. Head Constable Jitender Singh (PW4), proved DD No. 8A (Ex.PW4/A), DD No. 11A (Ex.PW4/B), FIR (Ex.PW4/C) and the endorsement (Ex.PW4/D).
15. Head Constable Ram Chander (PW5). On 26.02.2010, took the State Vs. Kanehya Kumar Singh SC No. 14 of 2010 9/31 ID No. 02403R0194172010 sealed pullanda with the seal of Department of Forensic Science, AIIMS from the Malkhana Mohrar alongwith two request letters for deposit at Forensic Department of AIIMS Hospital vide RC No. 162/21. On 15.04.2010, he obtained subsequent report and deposited the parcel in the Malkhana.
16. SubInspector Mandan Pal (PW8), Draftsman, prepared scaled site plan (Ex.PW8/A) at the instance of IO/Inspector Mohinder Singh.
17. Constable Pramod (PW9). On 29.03.2010, he took sealed pullandas from Malkhana and deposited the same at FSL, Rohini Vide RC No. 9/21. On 31.03.2010, he again took sixteen exhibits pertaining to Biology Division with RC No. 10/21 and two pullandas pertaining to Chemistry Division with RC No. 11/21 alongwith two separate FSL Forms and deposited the same at FSL Rohini in respective divisions and obtained the acknowledgment from both the divisions handed over to MHC(M).
18. Constable Manoj Baliyan (PW11), on 16.02.2010, took the dead body of Avdesh Kuamr Mishra (deceased) from the place of occurrence to the AIIMS Hospital for preservation. He is witness to the receipt (Ex.PW11/A) vide which dead body was handed over to Pawan Kumar. He is also witness to the seizure memo Ex.PW11/B of eight sealed pullandas regarding handing over the sealed pullandas to IO given to him by the Doctor, who conducted Autopsy.
19. Head Constable Satish Kumar (PW12), Special Messenger. On 16.02.2012, on the direction of Duty Officer, he delivered copy of the FIR to the concerned Metropolitan Magistrate and Senior Police Officials at their residence.
20. Constable Mukesh Kumar (PW13), Photographer of Crime Team, took photographs of the dead body and the place of occurrence. Photographs are placed on record as Ex.PW2/L1 to Ex.PW2/L10 and State Vs. Kanehya Kumar Singh SC No. 14 of 2010 10/31 ID No. 02403R0194172010 negatives are Ex.PW13/A1 to Ex.PW13/A10.
21. SubInspector Jitender Kumar (PW14), Incharge Crime Team, visited the spot i.e. Shed, DSIDC OkhlaIII, PhaseI, New Delhi alongwith Head Constable Raj Kumar and Constable Mukesh. He inspected the spot and prepared Scene of Crime (SOC) Report (Ex.PW14/A).
22. Head Constable Vijay Pal (PW15), reached the spot i.e. DSIDC Shed No. 28, OIA, PhaseII, on receipt of DD No. 8A, recorded at 11:40 am on 16.02.2010. He deposed that one Manjeet Singh Yadav, friend of Ajay Kumar Jain (owner of the factory) and Sujeet Kumar (accountant of the factory) met him at the spot, on the rear side gate of the factory, as the front side gate was bolted from inside. PW15 made enquiries from Manjeet Singh Yadav and Sujeet Kumar. In the meantime Assistant SubInspector Shiv Kumar (PW8) also reached at the spot. Thereafter, Pradeep Kumar, SHO and Inspector Mahender Singh, IO also reached at the spot. All of them went inside the factory. In the corridor portion, they saw dead body of the guard of the factory lying between the two wooden doors and a muffler was found tied on the neck of the deceased. PW15 deposed that a mobile phone was found hanging with a black dori (thread) in the neck of dead body and a purse was found in the back pocket of his pant, having Rs.32/ and some papers. Crime team was called at the spot and photographs were taken. IO recorded statement of complainant Manjeet Singh Yadav. PW15 went to the Police Station with the 'Asal Tehreer' and got the FIR No. 72/10, Police Station OIA u/s 302 IPC registered. He came back with a copy of the FIR and 'asal Tehreer' and handed over the same to IO/Inspector Mahender Singh for further investigation.
23. Constable Harender (PW16), joined the investigation with the IO. On 17.02.2010, he alongwith Head Constable Suresh Chand and State Vs. Kanehya Kumar Singh SC No. 14 of 2010 11/31 ID No. 02403R0194172010 Inspector Mohinder Singh went in search of suspect Kanehya Kumar Singh. He is witness to the arrest memo (Ex.PW16/A), personal search memo (Ex.PW16/B), disclosure statement (Ex.PW16/C). Seizure memos Ex.PW16/D, Ex.PW16/E and Ex.PW16/F. PW16 is also a witness to the pointing out memo (Ex.PW16/G). PW16 handed over plastic jars to the IO, who seized the same vide seizure memo Ex. PW16/H.
24. Head Constable Ramchander (PW17), Malkhana Mohrar, deposed that on 16.02.2010 IO/Inspector Mahender Singh deposited eleven sealed parcels and made Entry No. 2799 in the Register No. 19 of the Malkhana. On 17.02.2010, IO deposited three sealed parcels with the seal of 'MS' alongwith the personal belonging of accused Kanheya found in his personal search vide Entry No. 2802 in the Register No. 19 of the Malkhana. On 18.02.2010, IO deposited four sealed pulandas with the seal of AIIMS Hospital in the Malkhana vide Entry No. 2803 in the Register No. 19. On 19.02.2010, IO deposited eight sealed pulandas with the seal of Forensic Medicine AIIMS Hospital in the Malkhana vide Entry No. 2804 in the Register No. 19. On 31.03.2010, 14 sealed parcels and two sample seals and one viscera petty with one sample seal were sent to FSL vide RC No. 10/21 to FSL through Constable Pramod Kumar. PW17 placed on record copies of entries No. 2799, 2802, 2803 and 2804 Ex.PW16/A (collectively). He also placed on record, copy of RC No. 10/21 dated 31.03.2010 (Ex.PW16/B) and acknowledgment thereof Ex.PW16/C, copy of RC No. 11/21 dated 31.03.2010 (Ex.PW16/D) and acknowledgment (Ex.PW16/E).
25. Assistant SubInspector Suresh Chand (PW21), deposed that on 17.02.2010, he joined the investigation alongwith Constable Harender (PW16) and Inspector Mohinder Singh (PW20). His testimony is on the lines of PW16 Constable Harender. PW21 corroborated testimony of PW16 State Vs. Kanehya Kumar Singh SC No. 14 of 2010 12/31 ID No. 02403R0194172010 Constable Harender.
26. Assistant SubInspector Shiv Kumar (PW18), reached at the spot on receipt of DD No.11A (Ex.PW4/B) alongwith Constable Manoj. His testimony is on the lines of PW15 HC Vijay Pal. PW18 corroborated testimony of PW15 HC Vijay Pal.
27. Inspector Mohinder Singh (PW20), investigated the case and prepared several documents in the course of investigation. He placed on record endorsement (Ex.PW20/A) made by him on the statement of the complainant. PW20 got accused Kanehya formally medically examined from ESI Hospital on 17.02.2010 vide his request letter to the CMO (Ex.PW20/A1). PW20 deposed that on 19.02.2010, he recored statements (Ex.PW11/A, Ex.PW20/A2, Ex.PW20/A3) relatives of the deceased as regards identification of the dead body and after postmortem, dead body was handed over to the relatives of the deceased vide handing over memo Ex.PW20/A4. IO prepared inquest papers (Ex.PW20/A5). His request letter for postmortem is Ex.PW20/A6. PW20 deposed that prior to the postmortem, the dead body was preserved for 72 hours vide his application in this regard (Ex.PW20/A7). PW20 deposed that on 25.02.2010, he moved an application before the CMO, Department of Forensic Medicine, AIIMS (Ex.PW20/A8) for obtaining subsequent opinion as to whether the muffler found tied in the neck of the deceased was sufficient to cause death of deceased. PW20 deposed that on 25.02.2010, he moved an application (Ex.PW20/A10) to the CMO, Department of Forensic Medicine for seeking subsequent opinion as to whether the injuries over neck and hand of accused were scuffle injuries or otherwise and the duration thereof. Pursuant to his request, opinion dated 09.03.2010, was given by Doctor Sushil Sharma, Senior Resident, Department of Forensic Medicine, AIIMS Hospital State Vs. Kanehya Kumar Singh SC No. 14 of 2010 13/31 ID No. 02403R0194172010 (Ex.PW20/A11). PW20 deposed that subsequent opinion dated 11.07.2012 regarding cause of death (Ex.PW20/A12) prepared by Doctor Akhilesh Raj. After completion of investigation, PW20 prepared charge sheet and filed the same in the Court.
Statement of accused
28. On conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. Accused pleaded innocence and false implication. He stated that in the year 2007, he was working in the factory of Sh. Ajay Kumar Jain and at that time Awdesh Kumar Mishra (deceased) was also working with him. He had left the job during Diwali in the same year, after working of seveneight months. He further stated that Awdesh (deceased) had not done any wrong act with him. In the year 2007, Ram Chander, Mukhiya was known to him, when he used to work at the factory. He wrongly stated that he had seen him alongwith Awdesh. He had not gone in the factory of Ajay Kumar Jain after 2007. He further stated that his Bhanja Mannu, who was residing in his neighbourhood had caused him those injuries with his nails, when he was playing with him and was in his lap and that police officials, who arrested him had beaten him which caused injuries on his lower back and right hand with a danda and plastic pipe. He has not adduced any defence evidence.
29. I have heard submissions advanced by Sh.WasiUrRehman, Learned Addl. PP for the State as well as Sh. K. K. Tiwari, Learned Counsel for the accused and have perused the record carefully. Legal position
30. Before discussion of the evidence on record, relevant legal position may be noted. In Sharad Birdhichand Sarda Vs. State of Maharashtra's, AIR 1984 SC 1622, while referring to the decision in Shivaji Sahebrao Bobade Vs. State of Maharashtra, AIR 1973 SC 2622, it was opined State Vs. Kanehya Kumar Singh SC No. 14 of 2010 14/31 ID No. 02403R0194172010 that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
31. In Padala Veera Reddy Vs. State of Andhra Pradesh and others, AIR 1990 SC 79, it was held that when a case rests upon circumstantial evidence, the following tests must be satisfied :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that withing all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence."
32. In Balwinder Singh Vs. State of Punjab, AIR 1996 SC 607, it has been laid down that the circumstances from which the conclusion of guilt is State Vs. Kanehya Kumar Singh SC No. 14 of 2010 15/31 ID No. 02403R0194172010 to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with is innocence. In a case base on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. In Ram Singh Vs. Sonia and Ors., AIR 2007 SC 1218, while referring to the settled proof pertaining to circumstantial evidence, Hon'ble Supreme Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may taken the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as no rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.
33. In State of U.P. Vs. Ashok Kumar Srivastava, AIR 1992 SCW 640. Emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypotheses that the accused is guilty. In Ujagar Singh Vs. State of State Vs. Kanehya Kumar Singh SC No. 14 of 2010 16/31 ID No. 02403R0194172010 Punjab, AIR 2008 (Supp) 190, Hon'ble Supreme Court observed that it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.
34. The legal position is well settled that minor or normal discrepancies do not affect the case of prosecution. It is only material discrepancies which go to the root of the matter. Court has to consider totality of evidence on record. If the witnesses are trustworthy as regards some portion of their evidence, their testimony cannot be rejected as a whole. Their Lordships of Supreme Court in the matter of Appabhai vs State of Gujarat,1988(Supp) SCC 241 observed that "the court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments of their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.''
35. In Ronald Markas Goonthar vs State of Rajasthan 1988(2) Crimes 737, it was observed that "the police officers are citizens and public State Vs. Kanehya Kumar Singh SC No. 14 of 2010 17/31 ID No. 02403R0194172010 servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption u/s 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence cannot be discarded only on the ground that they are police officers. Thus the statement of the police witnesses are entitled to the same weight and same consideration which is attached to the statement to the member of the public. What is to be seen is that the statement to be relied upon must inspire confidence."
Discussion of evidence
36. Now on the touchstone of aforesaid position of law, I would discuss material facts on record. In this case, information regarding the incident was given by Manjeet Singh (PW2), first of all, at 11:40 am on Tueday i.e. 16.02.2010. PW2 deposed that incident, which appeared to them that the guard had gone away after stealing as rear side gate of the factory was not locked and was bolted from out side and this information was recorded as DD No. 8A and thereafter, he furnished the information to the police at 12:46 PM on 16.02.2010. Vide DD No. 11A, whereby he informed the police that it was not a case of theft, but was a case of murder and that the guard was lying unconscious and appeared to have died. PW15 and PW18, both the witnesses have deposed that on receipt of DD No. 8A & DD No.11A, when they entered inside the factory, they saw that the dead body of the guard was lying on the floor and a muffler was tied in his neck and he was bleeding from his mouth and nostril. Doctor Akhilesh Raj (PW1) has proved postmortem report (Ex.PW1/A) prepared by him. He proved that the cause of death was "asphyxia due to strangulation and ligature injuries were antimortem in nature." Bruising over neck muscles was present. Thyroid fractured and tracheal mucosa was congested and rigor mortis was present over upper limbs. PW1 deposed that postmortem was conducted on State Vs. Kanehya Kumar Singh SC No. 14 of 2010 18/31 ID No. 02403R0194172010 19.02.2010 and time since death opined by the Doctor was about five days. Ocular evidence as well as Medical Evidence on record clearly shows that it is a case of homicide.
37. Now, I shall advert to other circumstance relied upon by the prosecution to establish the guilt of accused. Learned Addl. PP for the State argued that PW3 is the last scene witness, who has clearly deposed that he had seen accused entering inside the factory in question at 05:00/05:30 pm and the main gate was opened by the Awdesh Kumar Mishra (deceased). He had also seen accused lastly, when he went inside the factory at about 08:00 pm. He submits that there is slight discrepancy regarding the exact date disclosed by PW3, but he has repeatedly deposed that Sit was Sunday. He has deposed that he did not remember the dates and is illiterate. Learned APP urged that testimony of PW3, in the cross examination has remained un impeached. Incident had occurred on the intervening night of Sunday 14.02.2010 and 15.02.2010, the Monday. Learned Counsel for the accused tried to persuade the Court that last scene witness Ram Chand (PW3) did not remember the dates, therefore, he should not be believed. Learned Counsel submits that in the cross examination, PW3 stated that he was aware about the dates and he was aware that on the day, he was appeared in the Court, it was 29.08.2011. I have carefully scrutinized testimony of PW3 and I find no force in the argument of Learned Defence Counsel. PW3 deposed that he was having a PCO Booth, situated outside the Shed No. 28, Scheme No. 3, Okhla, PhaseII i.e. factory where the incident occurred. He deposed that he knew Awdesh Kumar Mishra (deceased), who was the guard of the factory at Shed No. 28 and was residing inside the factory and Awdesh Kumar Singh (deceased) used to visit his PCO. He also knew accused Kanehya Kumar Singh. PW3 deposed that accused was working in the same State Vs. Kanehya Kumar Singh SC No. 14 of 2010 19/31 ID No. 02403R0194172010 factory alongwith Awdesh Kumar Singh (deceased). PW3 deposed that 12.03.2010, it was that the main gate of the factory was closed and on Monday i.e. 13.02.2010. One driver had brought some iron goods.
38. PW3 in his deposition, stated that he told the Manager of the factory, who had inquired from him about Awdesh Kumar Mishra (deceased) that he had not seen him after Sunday i.e. 11.02.2010 towards main gate. Then, he deposed that at about 08:00 PM on Sunday, he had seen accused Kanehya Kumar Singh, while he was going inside the factory and when the main gate was opened by the Awdesh Kumar Mishra (deceased). He also deposed that he remained at his PCO Booth till about 09:00 pm and he categorically deposed that he had not seen any other person going inside the fact after 08:00 pm, when Kanehya went inside the factory, therefore, he further reiterated that Kanehya worked in the factory on Sunday. PW3 is consistent and clear in stating time and again that he had seen accused Kanehya Kumar Singh entering inside the factory at about 05:00/05:30 pm and he had seen him lastly entering inside the factory at about 08:00 PM and thereafter, he had not seen either accused Kanehya Kumar Singh or Awdesh Kumar Mishra (deceased). PW3, in his deposition stated that he could not recollect the exact date, even if suggestions were given to him in this regard, he was sure about the day, that it was Sunday, when accused Kanehya Kumar Singh went inside the factory. He deposed that driver of the Vikram (three wheeler) and the Manager had come on Monday and had also met him at about 11:00 / 12:00 am. He identified accused in the Court correctly. Leading question was put by Learned Addl. PP to clarify again regarding the exact date. On asking that his statement was recorded by the police, wherein date was mentioned as 14.02.2010, when he had seen accused going inside the factory, he reiterated again that it was Sunday and stated that police had State Vs. Kanehya Kumar Singh SC No. 14 of 2010 20/31 ID No. 02403R0194172010 recorded the date correctly in his statement. In cross examination, PW3 maintained that he had seen accused Kanehya Kumar Singh going inside the factory at about 08:00 PM on Sunday. He stated that police had recorded his statement on Monday or Tuesday. He did not remember the date exactly. Police recorded his statement at about 07:00 pm. In cross examination, he deposed that driver had come on Monday at about 01:00 pm and nobody opened the gate. After making telephone call and after knocking the main gate he left. PW3 deposed that the Manager of the Fact had come on the next date i.e. on Tuesday and the police had come at the spot on the same day i.e. on Tuesday. He further clarified that Kanehya Kumar Singh was working even before Awdesh Kumar Mishra joined. Accused Kanehya Kumar Singh had earlier worked in the factory and left. PW3 again used to see him after Avdesh Kumar Mishra joined the factory. He denied that he was not present at his PCO Shop and voluntarily deposed that on Sunday, he was present at his PCO.
39. Learned Counsel for the accused submits that in the statement u/s 161 Cr.P.C. Ram Chander (PW3) stated that he had gone inside the factory and had seen accused Kanehya and that this fact has not been deposed by the witness in his testimony in the Court. Record shows that no such suggestion has been given to the witness, on behalf of the accused. Even in his statement u/s 161 Cr.P.C. this witness had stated that he had seen accused with the deceased. This fact, that PW3 has not deposed that he went inside the factory is of no help to the accused in view of his clear evidence. In response to a suggestion given on behalf of accused, PW3 denied that he was not present at his PCO Shop. He emphatically stated that on Sunday, he was present at his PCO Shop. Thus, testimony of PW3 regarding the fact that he had seen accused with deceased entering inside the factory at about State Vs. Kanehya Kumar Singh SC No. 14 of 2010 21/31 ID No. 02403R0194172010 05:00/05:30 PM and also lastly seeing him at about 08:00 pm with deceased has remained unimpeached. His evidence regarding this last scene fact is very clear and cogent and I find no reason to disbelieve his evidence.
40. Next circumstance, relied upon by the prosecution is recovery of incriminating articles. Learned APP submits that the factum of recovery of incriminating articles from the house of the accused at Harkesh Nagar i.e. bag having Rs.1600/, a lady's wrist watch having beads (motiyon ka feeta), one ball pen, one diary on which name of Awdesh Mishra was written, three packets of Bhang on which 'Bhola Munaka' was written, a passport size photograph of deceased Awdesh, and a receipt of SBI, Shivaji Nagar, Gurgaon on which account number of Kavita Devi pursuant to the disclosure of the accused, stands proved. Perusal of record shows that pursuant to the disclosure statement of accused, accused was arrested on 17.02.2010 at 07:30 pm from G. B. Pant Polytechnic, Main Road, OIA, PhaseII, New Delhi. Accused had made disclosure statement in the presence of Constable Harender (PW16) and Assistant SubInspector Suresh Chand (PW21). Pursuant to the disclosure statement, accused got recovered incriminating articles. Constable Harender (PW16), recovery witness, deposed that at about 04:00 pm, he reached at G. B. Pant Polytechnic College Quarters at Shyam Nagar, Okhla, where a secret informer was already deputed by the IO to give information about the suspect Kanehya Kumar Singh. He alongwith IO and HC Suresh Chand went towards bus stop at main road, Anandmai Marg, where at the instance of secret informer accused was arrested. Accused Kanehya Kumar Singh made disclosure statement (Ex.PW16/C) and pursuant to his disclosure statement they reached at G67, Harkesh Nagar, residence of accused from where incriminating articles i.e. bag having Rs.1600/, a lady's wrist watch having beads (motiyon ka feeta), one ball pen, one diary on State Vs. Kanehya Kumar Singh SC No. 14 of 2010 22/31 ID No. 02403R0194172010 which name of Awdesh Mishra was written, three packets of Bhang on which 'Bhola Munaka' was written, a passport size photograph of deceased Awdesh, and a receipt of SBI, Shivaji Nagar, Gurgaon on which account number of Kavita Devi were recovered pursuant to the disclosure of the accused. In cross examination, PW16 Constable Harender reiterated that accused was arrested in his present and IO had requested public witnesses, but they were not ready to join the investigation. PW16 maintained that coloured photograph of deceased and one underwear of accused was recovered. Learned Addl. PP submits that only bald suggestions have been given to the witnesses. There is nothing in cross examination of recovery witnesses namely Constable Harender (PW16) or ASI Suresh Chand (PW21) to show that the recovery was doubtful, in any manner.
41. Testimony of these police witnesses coupled with testimony of the IO (PW20) proves recovery of incriminating articles at the instance of accused beyond doubt. Suggestions given to the IO, are that he had not recorded statement of landlord of accused Kanehya Kumar Singh to show that accused was a tenant in a Room at G67, Harkesh Nagar or it belonged to accused Kanehya or that he had not recorded statement of any witness showing that articles recovered from G67, Harkesh Nagar belonged to accused. It is not the case of the accused that he is not a residence of G67, Harkesh Nagar. Although, in his statement u/s 313 Cr.P.C., in response to the question about the recovery effected at his instance, accused has denied recovery, but unimpeached testimony of police witnesses, regarding seizure of recovered articles vide seizure memo Ex.PW16/D and Ex.PW16/E cannot be discarded and disbelieved. Not even any suggestion has been given to the IO (PW20) on behalf of the accused that no recovery were effected from his house. This circumstance against accused stands proved.
State Vs. Kanehya Kumar Singh SC No. 14 of 2010 23/31 ID No. 02403R0194172010
42. Another circumstance, relied upon by the Learned Addl.PP for the State, is that as per medical evidence, accused was having injuries on his neck, right hand and lower back. MLC (Ex.PW19/A) prepared by Doctor Sushil (PW22) noted the history that "last anal sex with accused on 14.02.2010 at about 04:30 pm. After that, person accused Kanehya Kumar Singh, who strangulated the deceased with the help of muffler and run away. Person (Kanehya Kumar Singh) was arrested on 17.02.2010, at about 04:05 pm. It was noted that alleged h/o bleeding, per anal was present on first incidence only i.e. in 2007. Discharge, and use of saliva as lubricant on last anal sex and history of change of garments. Doctor Sushil (PW22) has clearly stated in his deposition, that the alleged history was given by accused Kanehya Kumar Singh himself. Medical examination shows grazed scabed abrasion 3.5 X 1 cm present at left aspect of lower back, scabed abrasion, scratch 1 X .2 cm at back at right hand, scabed abrasion, scratch 1 X .2 cm at left, lower side of neck, Two linear, scratch abrasion 3 X .1 cm at right aspect of middle of neck and an abrasion of size 2 X .2 cm intrupted at midline of neck, scabed. Doctor (PW22) deposed that injuries No. 1 to 5 mentioned in the MLC of the accused were "marks of scuffle". In his statements u/s 313 Cr.P.C. accused tried to explain that his nephew had caused injuries with his nail on his neck, when he was in his lap and he further stated that police had caused injuries on his back and hand. Explanation given by the accused is not at all convincing. When the attention of the accused drawn to circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing another link for completing the chain of circumstances. In this context, Learned Addl.PP for the State urged that the motive for committing crime disclosed by accused in State Vs. Kanehya Kumar Singh SC No. 14 of 2010 24/31 ID No. 02403R0194172010 his disclosure statement is peculiar and by no stretch of modification, it can be said to be a manipulated disclosure by the police.
43. It is pertinent to point out here, what was disclosed by the accused in his disclosure statement. Accused stated that in the year 2006, he came to Delhi and started residing at Harkesh Nagar and stated work at Shed No. 28, Scheme No. 3 and during this period he came into contact with the deceased, who was committing wrong act (sodomy) with him and on the alleged day of incident also during day time he had committed sodomy with him and when protested, deceased had threatened him that he will defame him. Thereafter, the work of the factory was shifted to Gurgaon. He stated that few days ago, Awdesh Kumar Mishra (deceased) again came to the place of occurrence i.e Shed No. 28, DSIDC, Scheme No. 3 in connection with the work of the factory and on 11.02.2010, he came to his residence. He met the deceased in the factory on 12.02.20010 and on that day, deceased committed wrong act (sodomy) with him. Thereafter, he worked in the factory on 14.02.2010. At about 10:00 am, he reached at the factory and at about 12:00 PM, afternoon deceased committed wrong act (sodomy) with him and thereafter, deceased went away after locking the factory. Accused Kanehya Kumar Singh stated that at 04:30 pm, he committed wrong act with him and thereafter, again at 06:00/06:15 pm, deceased was alluring him to commit the act. He did not like this and hated this act. Thereafter, he caught hold of the muffler of the deceased, which he was wearing in his neck and pressed it and made him fall and thereafter, tied the muffler on his neck. Blood started oozing out from his mouth. While going away, accused took away his bag. He disclosed that since deceased was committing wrong act (sodomy) and pressurizing him to do so, thereafter, he killed him being fed up with his bad habits.
State Vs. Kanehya Kumar Singh SC No. 14 of 2010 25/31 ID No. 02403R0194172010
44. This fact regarding sodomy allegedly being committed by the deceased with accused has also been disclosed by the accused to the Doctor (PW22), who has deposed that the alleged history was given by accused himself. There is no reason why the Doctor would depose falsely in this regard. He testified that person (i.e. accused) was a victim of sodomy since 2007 and the deceased done about 1012 times anal sex with him. On general examination of accused, injuries noticed above were found to be present. Doctor, who medically examined the accused was of the opinion that the "possibility of sodomy could not be ruled out". On perusal of the FSL Report (Ex.PW19/B), regarding perineal, perinial, andinteraanal swab, doctor (PW22) was of the opinion that there was no evidence suggestive of recent act of sodomy and the alleged history was not consistent with examination finding and that injuries no. 1 to 5 on the person of the accused noted in the MLC could be "marks of scuffle". When he was asked to clarify the position, Doctor (PW22) testified that his opinion was based on the examination and actual observation of accused and further more as per the alleged history, the alleged act of sodomy were being done for about three years since 2007 till 2010, but he had not noted any external injuries or marks present in anal region.
45. Learned Addl. PP for the State argued that it is not necessary that the injuries must be visible at anal region. He argued that there is no reason as to why the police would come out with such peculiar facts unless accused had disclosed about these facts and this fact could only be in the knowledge of accused or the deceased. In the alternative, Learned Addl. PP submits that although motive is not a sign qua non for proving the case or prosecution, but in this case, motive has emerged from the disclosure State Vs. Kanehya Kumar Singh SC No. 14 of 2010 26/31 ID No. 02403R0194172010 statement given by the accused, that the deceased used to practice sodomy upon his since 2007 and deceased had threatened him that he will defame him and that evidence of PW7 i.e. employer of deceased to the effect that deceased insisted to keep accused with him is noteworthy. This Court finds force in this argument. He argued that on the basis of last scene evidence alone accused is liable to be convicted.
Conclusion
46. This Court finds that in any case, the scab abrasions on the lower back, right hand as well as abrasions noted at three places on the neck clearly point out that those were "marks of scuffle" showing scuffle between the accused and the deceased. The injuries, noted in the MLC (Ex.PW19/A) found on the person of the accused have not been satisfactorily explained by him and no one else was seen with the deceased at the scene of crime and soon before the incident as well as after the incident till dead body was noticed.
47. To conclude, on appreciation of evidence on record, this Court finds that following facts and circumstances are established :
(i) accused was lastly seen at the place of occurrence i.e Shed No. 28, DSIDC, Scheme No. 3 with the deceased by Ram Chander (PW3) at 05:00/05:30 pm and at 08:00 PM on 14.02.2010 (Sunday),
(ii) At 15.02.2010, at 12:00 PM the Mullaji/driver of a threewheeler had come and knocked the door. Neither gate was opened by the guard Awdesh Kumar Mishra (deceased) nor he responded to the telephonic call of Manager Sujeet Kumar.
(iii) the incident about the death of Awdesh Kumar Mishra was revealed at 12:30 PM on 16.02.2010 (Tuesday) after Manjeet Singh (PW2) and Sujeet (PW6) went inside the factory i.e. the place of occurrence,
(iv) There is nothing on record to show that any other person had gone State Vs. Kanehya Kumar Singh SC No. 14 of 2010 27/31 ID No. 02403R0194172010 inside the factory during the period, when the accused was lastly seen with the deceased and thereafter, till the time, the dead boy was seen by the witnesses,
(v) It is not the case of the accused that any other person had come inside the factory after accused was lastly seen with the deceased,
(vi) Recovery of incriminating articles i.e bag having Rs.1600/, a lady's wrist watch having beads (motiyon ka feeta), one ball pen, one diary on which name of Awdesh Mishra (deceased) was written, three packets of Bhang on which 'Bhola Munaka' was written, a passport size photograph of deceased, and a receipt of SBI, Shivaji Nagar, Gurgaon on which account number of Kavita Devi (wife of deceased) was written and on gent's wrist watch make 'Sonata', which was lying behind idol of Laxmi at his instance at the residence of the accused at G67, Harkesh Nagar.
(vii) There are injuries on the body of accused at lower back; at back of right hand and at three places on neck. Injuries are opined by doctor as "marks of scuffle".
(viii) Failure of the accused to give satisfactory explanation regarding the injuries on his person, indicates that a scuffle took place between accused and the deceased at the place of occurrence at relevant time.
(ix) Awdesh Kumar Mishra (deceased) wanted to engage and keep accused with him. Sh. Ajay Kumar Jain (PW7), employer of Awdesh Kumar Mishra had asked deceased as to why he wanted to engage accused, who was earlier working in his factory and had left, but Awdesh Kumar Mishra (deceased) insisted to work with accused. Thereafter, PW7 permitted Awdesh Kumar Mishra (deceased) to keep accused with him.
(x) motive of commission of crime i.e. commission of sodomy by the State Vs. Kanehya Kumar Singh SC No. 14 of 2010 28/31 ID No. 02403R0194172010 deceased upon the accused is indicated from the history given by the accused himself to PW22 Doctor, who conducted medical examination of the accused and his opinion that sodomy could not be ruled out as well as disclosure statement made by the accused in this regard.
Disclosure statement of accused cannot be said to be manipulated.
48. In view of the totality of aforesaid discussion, this Court is of the considered opinion that the facts established by the prosecution complete the chain. There is no trace of doubt that the circumstances proved on record and noticed above singularly lead to the guilt of the accused. In the result, accused Kanehya Kumar Singh is hereby convicted for the offence punishable u/s 302 IPC.
announced in the open court on 15th October, 2012. (VINAY KUMAR KHANNA) Additional Sessions Judge04 (SouthEast) Saket/New Delhi State Vs. Kanehya Kumar Singh SC No. 14 of 2010 29/31 ID No. 02403R0194172010 IN THE COURT OF SH. VINAY KUMAR KHANNA:
ADDITIONAL SESSIONS JUDGE - 04 SOUTH EAST: SAKET COURTS: DELHI Sessions Case No. 147/2010 Unique ID No. 02403R0194172010 FIR No. 72/2010 U/s 302 IPC PS : Okhla Industrial Area State Versus Kanehya Kumar Singh, s/o Shripati Singh, r/o Village and PO Nawada, PS Sahara, District Aara, Bhojpur ..........Accused ORDER ON SENTENCE 31.10.2012 Present: Sh. WasiUrRehman, Learned Addl. PP for the State.
Sh. K. K. Tiwari, Learned Defence Counsel.
Convict Kanehya Kumar Singh produced from J/c.
1. Having convicted accused Kanehya Kumar Singh u/s 302 IPC, I have heard arguments address on behalf of the State by Learned Addl. PP.
2. Convict has submitted that he is 23 years old. He is unmarried. He is in J/C since 17.02.2010. He is not previous convict. He submit that leniency may be exercised for sentencing him.
3. Sentencing is an important stage in the process of administration of criminal justice, as important as adjudication of guilt. Court keeps in mind not only the crime, but also the criminal. Sentencing choice is guided not only by the subjective facts of the case, but variety of factors such as social investigation of the offender, his criminal background, his social State Vs. Kanehya Kumar Singh SC No. 14 of 2010 30/31 ID No. 02403R0194172010 environment, behaviour and tendencies.
4. These factors are apart from the other factor such as history of previous offences or conviction, subjective facts pertaining to the offender such as age, gender, gravity of the offence, circumstances leading to the offence etc. Court has to strike a balance application between need of imposing an adequate sentence, while keeping in mind that the choice made by the Court has to ultimately serve a larger public purpose.
5. Accused in present case has been convicted u/s 302 IPC. Considering the facts and circumstances and the gravity of the offence proved against the accused, it is not a case for imposition of death penalty as it does not qualify as a 'rarest of rare case'. Having decided that, this Court is left with no discretion. Having regard to the totality of facts and circumstances of the case, convict is sentenced to imprisonment for life as well as a fine of Rs.5,000/. In default, of deposit of fine, convict shall further undergo Simple Imprisonment for one month. Copy of the judgment and order on sentence be supplied to the convict.
6. File be consigned to Record Record.
announced in the open court on 31st October, 2012. (VINAY KUMAR KHANNA) Additional Sessions Judge04 (SouthEast) Saket/New Delhi State Vs. Kanehya Kumar Singh SC No. 14 of 2010 31/31