Delhi District Court
State vs . Kamal on 21 March, 2011
State Vs. Kamal
IN THE COURT OF SHRI GURVINDER PAL SINGH
ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT
SAKET COURTS, NEW DELHI
Session Case No. 18/2009
State Vs. : Kamal
S/o Sh Punnu
R/o Village Raveli,
PS Nanghat, District Durg,
Chattisgarh
FIR No. 433/05
P.S. R.K Puram
U/s 302 IPC
Date of Institution : 15/11/2005
Date when arguments
were heard : 14/03/2011
Date of Judgment : 21/03/2011
JUDGMENT
BRIEF FACTS:
Adumbrated in brief the prosecution case is as follows: SC No. 18/09 1/55
State Vs. Kamal ASI Attaullah Khan, PW7, on duty on PCR Van No. Z21, on receipt of information on 16/08/2005 at about 7.30 am alongwith his staff went to park near Masjid Sector3, R.K Puram and found one dead body lying there. Upon that PW7 confirmed the message to the Police Control Room. Aforesaid information was recorded in DD No. 5, copy Ex PW17/A, dated 16/08/2005 at PP Sector4, R.K Puram, New Delhi. PW17 Inspector (then SI) A.K Singh alongwith PW10 Ct Rajender reached the spot i.e DDA Park, Sector4, R.K Puram, New Delhi and met PW14 Ct Vikram there. PW14 Ct Vikram alongwith ASI Raghubir, also on receipt of copy of aforesaid DD No. 5 had reached there. There inside the park a dead body was lying, from the head of which blood had oozed out. Near the dead body a pair of sleeper (hawai chappal) were there. At the back of the head of the dead body, a big blood stained stone was lying. Below the head of the dead body on the earth also blood was scattered. At the back side of right ear on the head of dead body of the deceased; on right ear; on neck towards right upper side; on right shoulder and on index and middle fingers of right hand of the dead body there were injuries marks. From the mouth and nose of the dead body, froth had oozed SC No. 18/09 2/55 State Vs. Kamal out. From the worn shirt of dead body, from upper front pocket, a small diary was found. Since no eye witness could be found, PW17 Inspector A.K Singh, then SI, scribed tehrir Ex PW17/B, handed it over to Ct Rajinder, PW10, who took the tehrir to the police station R.K Puram and got FIR no. 433/05, copy Ex PW1/A, registered from PW1 SI Vishan Pal, duty officer and brought back the tehrir after endorsement Ex PW1/B of PW1 with copy of FIR and handed over them to PW17 Inspector A.K Singh. PW18 Inspector Om Parkash, SHO P.S R.K Puram alongwith his staff reached the spot. Matter was brought to the notice of senior officers. Crime team of the District, Photographer and Dog Squad were called at the spot and the scene of crime was inspected by them. PW18 Inspector Om Parkash got prepared the scaled site plan from Draughtsman PW12 SI Madan Pal as Ex PW12/A. The blood stained stone Ex P1 was seized from the spot vide memo Ex PW10/H; the pocket diary Ex PW2/1 recovered from the pocket of the shirt of the deceased was seized vide memo Ex PW10/J; blood stained grass and earth were seized vide memo Ex PW10/K; sample of the earth and grass were seized vide memos Exts PW10/L and PW10/O; blood lying on the spot was seized vide memo SC No. 18/09 3/55 State Vs. Kamal Ex PW10/N and pair of cream coloured sleeper of deceased, Ex PW10/P2 (colly), were seized vide memo Ex PW10/M. PW18 Inspector Om Parkash filled up the inquest form Ex PW12/A. From the aforesaid pocket diary recovered from the possession of deceased, on the mentioned telephone number, call was made by PW18 Inspector Om Parkash to Abdul Rehman, PW2. PW2 Abdul Rehman came at the spot and identified the body to be of Kokil Yadav, son of Sh Satya Narain Yadav and in the course of investigation it was ascertained that the deceased was doing the work of petty contractor (building construction). Also in the course of investigation, it was revealed that on 15/08/05 at 8.30/9 pm deceased Kokil Yadav had consumed liquor in the hut of Kameshwar who used to work in the premises of school under construction at Sector4, R.K Puram, New Delhi, from where the accused Kamal and Kokil Yadav came out together. Accused Kamal was searched. On 17/08/2005 in the evening accused Kamal was apprehended from Sector4, R.K Puram, New Delhi. From his possession accused Kamal took out four currency notes of Rs 500/ each and fifty one currency notes of Rs 100/ each, collectively Ex PW10/P4 which were seized vide memo SC No. 18/09 4/55 State Vs. Kamal Ex PW10/E after sealing the same in a pullanda with the seal of AKS.
Accused was wearing sky blue coloured T shirt Ex PW10/P3 which was having blood stained spots. Said T shirt was obtained from the accused, kept in a pullanda, sealed with the seal of AKS and seized vide memo Ex PW10/F. Accused was arrested. Dead body of the deceased was got preserved for postmortem and was identified by PW11 Bipat Yadav and PW2 Sh Abdul Rehman. The postmortem on the dead body was got conducted. PW18 Inspector Om Parkash also obtained the subsequent opinion of PW3 Dr. Allexander about the weapon of offence i.e stone. Exhibits were sent for expert opinion to FSL. The investigation was concluded by investigating agency with the charge sheet that on 15/08/05 at about 8.30/9 pm deceased Kokil Yadav consumed alcohol with accused Kamal in the hut of Sh Kameshwar Paswan, PW5, from where they came out together and on having seen considerable sum in the pocket of deceased Kokil Yadav, then accused Kamal became greedy and took the deceased Kokil Yadav in the park, while he was under influence of liquor and there accused took out money from the pocket of deceased, upon which the deceased raised noise. Pursuant to that accused assaulted SC No. 18/09 5/55 State Vs. Kamal deceased by big stone lying nearby. Consequently deceased Kokil Yadav died. Charge sheet was filed against the accused in the court.
2. On completing the requirements of Section 207 IPC, the case was committed to the Court of Sessions.
CHARGE:
3. Charge for offence under Section 302 IPC was framed against the accused by my Ld. Predecessor to which he pleaded not guilty and claimed trial.
WITNESSES:
4. To connect the accused with the offences charged, the prosecution has examined in all 18 witnesses. OFFICIAL WITNESSES:
5. PW1 SI Vishan Lal is the duty officer who has proved his scribed FIR No. 433/05, under Section 302 IPC as Ex PW1/A. PW1 stated that PW10 Ct Rajender had brought tehrir at 10 am on SC No. 18/09 6/55 State Vs. Kamal 16/08/2005 sent by PW17 SI A.K Singh. PW1 also stated of having made endorsement Ex PW1/B on the rukka.
6. PW7 ASI Ataullah Khan on duty on PCR van on 16/08/2005 at about 7.30 am, on receipt of information, with his staff went to park near Masjid Sector3, R.K Puram and found one dead body lying there. PW7 confirmed the message to the Control Room. Local police arrived there.
7. PW8 Ct Dharam Pal being dog squad handler at Dog Squad, R.K Puram, went to DDA Park, R.K Puram on 16/08/2005 with dog Teena, where he found a dead body lying there. Despite the release of dog Teena to trace the direction of accused, the dog could not trace the direction/movement of the accused.
8. PW9 Ct Sita Ram, DD Writer, had scribed DD No. 5A, copy Ex PW9/A, on 16/08/2005 at 11.30 am on the basis of wireless message whose copy had been given to ASI Raghuveer Singh through Ct Krishan Kant.
SC No. 18/09 7/55
9. PW10 Ct. Rajender accompanied PW17 SI A.K Singh to DDA Park, Sector3, R.K Puram on 16/08/2005 where near a old broken room, they found a dead body. PW17 made enquiries, prepared rukka which was brought by PW10 to police station and given to PW1 for registration of FIR. PW10 returned with copy of FIR and original rukka to the spot. The dead body was removed to mortuary. PW10 also joined investigation on 17/08/2005 with IO and is a witness to the arrest of accused Kamal vide memo Ex PW10/A pursuant to receipt of secret information and subsequently conducting of personal search of accused vide memo Ex PW10/B; handing over of Rs 7100/ collectively Ex PW10/4, comprising four currency notes of Rs 500/ each and fifty one currency notes of Rs 100/ each by the accused to IO which were seized vide memo Ex PW10/E; seizure of T shirt Ex PW10/P3 of the accused having blood stains and which was worn by accused at the time of arrest, seized vide memo Ex PW10/F; seizure of pocket diary, Ex PW2/1 from the pocket of shirt of deceased seized vide memo Ex PW10/J; seizure of blood stained earth and earth sample from the spot vide memos Exts PW10/K and SC No. 18/09 8/55 State Vs. Kamal PW10/L; seizure of pair of sleeper (chappal), Ex PW10/P2(collectively), from the spot and seized vide memo Ex PW10/M; seizure of sample blood from the spot vide memo Ex PW10/N and the seizure of some grass from the spot vide memo Ex PW10/O.
10. PW12 SI Madan Pal, Draughtman, has proved his prepared scaled site plan Ex PW12/A for which he had taken measurements and rough notes of the spot on 21/10/05 on the pointing out and direction of IO.
11. PW13 Ct Naresh had taken six sealed pullandas, one sample seal FSL form and other papers to FSL Rohini vide RC No. 83/21 and deposited the same there. PW13 testified that during the period of his possession of said pullandas, the seals were intact.
12. PW14 Ct Vikram had accompanied ASI Raghuvir Singh on 16/08/2005 to DDA Park, Sector3, R.K Puram where the dead body of deceased was found. PW14 after completion of inquest SC No. 18/09 9/55 State Vs. Kamal proceedings, as per the direction of the IO, had taken the dead body to Safdarjung Hospital mortuary where the dead body was preserved upto 19/08/2005 under his supervision till its postmortem. PW14 stated that during his custody of the dead body, the same was not tempered with.
13. PW15 HC Pravir Singh was the photographer in Crime Team who has proved the positives of the photographs Ex PW15/P5 to P8 and the negatives brought Ex PW15/P1 to P4, of the dead body taken from different angles on the direction of IO and Incharge Crime Team on 16/08/2005 at Sector3, DDA Park, R.K Puram.
14. PW16 HC Jagat Singh had taken the copy of the FIR to the residence of Area MM and at the residence of senior officers of the police on 16/08/2005.
15. PW17 Inspector A.K Singh alongwith PW10 Ct Rajender had reached the spot i.e DDA Park, Sector3, R.K Puram on receipt of copy of DD No. 5, Ex PW17/A, found a dead body lying SC No. 18/09 10/55 State Vs. Kamal inside the park, a blood stained stone, Ex P1, was found near the head of the deceased, one pocket diary, Ex PW2/1, was found from the front shirt pocket of the deceased. PW17 despite efforts could not establish the identity of the deceased, so made endorsment Ex PW17/B on DD No. 5, prepared rukka and handed it to PW10 Ct Rajender for registration of FIR. In the meantime PW18 Inspector Om Parkash and the then SHO P.S R.K Puram reached at the spot. The Dog Squad and the Crime Team were also called at the spot. After registration of FIR, investigation was conducted by PW18. Site was photographed; dog squad inspected the spot; PW18 prepared rough site plan; from mobile number mentioned in the diary of deceased, PW18 contacted PW2 Abdul Rehman who arrived at the spot and identified the dead body of deceased to be that of Kokil Yadav. PW18 seized sample blood, stained grass and soil, blood stained stone, sample soil, sample grass, one pair of hawai chappal and the pocket diary and kept in separate pullandas, sealed with the seal of AKS and seized vide memo Exts PW10/N, PW10/K, PW10/H. PW10/L, PW10/O, PW10M and PW10/J. On 17/08/2005, PW17 accompanied IO PW18 Inspector Om Parkash and other police SC No. 18/09 11/55 State Vs. Kamal official near the Subji Mandi, Sector4, R.K Puram where on the pointing out of secret informer, accused Kamal was apprehended from near the Syndicate Bank. Accused was arrested vide memo Ex PW10/A, his personal search was conducted vide memo Ex PW10/B and disclosure statement Ex PW10/C of accused was recorded. Accused Kamal took out Rs 7100/ , Ex PW10/P4 (collectively), comprising four currency notes of Rs 500/ each and fifty one currency notes of Rs 100/ each from inside pocket of his worn pants and gave them to IO and IO seized them vide memo Ex PW10/E. PW17 deposed that accused told the IO that the Tshirt, Ex PW10/P3, which he was wearing at the time of arrest was the same which was worn by him at the time of incident and same was having blood spots, which Tshirt was taken out from the body of accused, kept in a pullanda, sealed with the seal of AKS and seized vide memo Ex PW10/F. The postmortem of the dead body of deceased was got conducted on 19/08/2005.
16. PW18 Inspector Om Parkash is the investigating officer and the then SHO of police station R.K Puram. PW18 had also SC No. 18/09 12/55 State Vs. Kamal prepared site plan without scale Ex PW18/A, filled up Inquest Form; got the postmortem of deceased done on 19/08/2005 vide application Ex PW18/B; moved an application Ex PW18/C for seeking opinion regarding weapon of offence i.e stone and the injuries caused on the person of deceased; on the basis of the last seen evidence, collected in the course of investigation, in the form of statement of witness Kameshwar Paswan, PW5, later pursuant to information from secret informer, accused was arrested. PW18 had also taken into possession the exhibits of the Safdarjung Hospital i.e blood samples of the deceased, cloth of the deceased sealed with the seal of Department of Forensic Medicine and sample seal vide memo Ex PW10/G. The said exhibits were got sent to FSL, Rohini by PW18 through Road Certificate Ex PW18/E through PW13 Ct Naresh. RELATIVE WITNESSES:
17. PW11 Sh Bipat Yadav is the younger brother of deceased Kokil Yadav and had identified the body of his deceased brother on 19/08/2005 in Safdarjung Hospital vide statement Ex PW11/A. SC No. 18/09 13/55 State Vs. Kamal
18. PW2 Sh Abdul Rehman, native of the village of deceased, had also identified the body of deceased and had received information on 16/08/2005, upon which he had reached at the spot i.e DDA Park, Sector3, R.K Puram. PW2 had also identified the pocket diary, Ex PW2/1, to be belonging to deceased and on the third page of said diary, the mobile number of PW2 was mentioned. PW2 stated that the deceased used to take small contracts of building construction work. PW2 had also signed the death report Ex PW2/A and had given statement Ex PW2/B in respect of identification of dead body.
MEDICAL EVIDENCE:
19. PW3 Dr. Allexander deposed that on 19/08/2005 he had conducted the postmortem on the dead body of deceased Kokil Yadav. PW3 stated that on examination, he found that the rigor mortis had passed of from all over the body; postmortem staining was fixed on the back; both eyes were closed; cornea was hazy on both sides; there was bleeding from both the ears and nostrils. PW3 further stated that following antemortem external injuries were SC No. 18/09 14/55 State Vs. Kamal found:
1. Lacerated wound on the infra mandibular margin of the face on right side of size 4.3 cms x 0.6 cms x 0.5 cms.
2. Crush laceration on the right pinna and ear lobule, size 3.5 cms x 0.4 cms x 0.5 cms.
3. Deformity on the lower jaw with fracture right tempero mandibular joint.
4. Abrasion on the front of right shoulder of size 5.5 cms x 0.3 cms.
5. Laceration on the right tempero parietal aspect of head, size 2.5 cms x 0.5 cms x 0.5 cms.
PW3 stated that on internal examination of the body, he found there was extravasation of blood under the scalp corresponding to injury no. 5; skull vault showed a fissure fracture of right tempero parietal bones extending to the base of the skull at middle cranial fossa on both sides; subdural and sub arachnoid haemorrhage was present on the right tempero parietal lobes of crebrum; intra ventricular bleeding was present; brain was grossly SC No. 18/09 15/55 State Vs. Kamal oedematous; stomach contained approximately 100 ml of fluid with smell of alcohol; mucosa was congestive; urinary bladder was empty; rest of the structures inside the body were normal and intact.
PW3 stated that in his opinion the death in this case was due to cranio cerebral injuries caused by blunt force impact with a blunt and hard object/weapon; the injury no. 5 and the corresponding internal injuries were sufficient to cause death in the ordinary course of nature; all the injuries were antemortem in nature and consistent to the alleged history; the time since death was approximately three and half days. PW3 has proved his postmortem report Ex PW3/A. PW3 stated that on 19/08/2005, IO had come with a sealed parcel and had asked for opinion; he had received the sealed parcel with the seal of AKS; parcel was opened and stone was taken out, examined and in his opinion the following were the answers to the queries put by the IO.
Q1. Whether the injuries on the dead body can occur with the impact of this big stone if falls from the height of 3 to 4 feet? Ans Yes. Injuries mentioned in the postmortem report can be caused by this stone.
SC No. 18/09 16/55
State Vs. Kamal Q2. Whether the impact of this big stone from 3 to 4 feet is sufficient to cause death of the victim?
Ans Yes.
Q3. Any other specific information?
Ans Nil.
PW3 further stated that stone was repacked, sealed and handed over to IO. PW3 has also proved his subsequent opinion Ex PW3/B. As per PW3, since the alcohol smell was coming from the contents of stomach even after three days of the death, on the day of postmortem it appeared to him that the deceased was heavily drunk at the time of incident. PW3 denied the suggestion that these injuries could be caused due to fall over the stone by the victim whose height was of 5'5". PW3 also stated that injury no. 5 was sufficient to cause death independently and collectively. Also PW3 stated that injury no. 5 cannot be a result of fall on the stone.
MATERIAL WITNESSES:
20. PW4 Sh Sunil Kumar Mishra deposed of being SC No. 18/09 17/55 State Vs. Kamal Accountant with M/s Top Line Build Tech Pvt. Ltd, where he worked for about 7/8 years and the office of the company was situated at K74A, Hauz Khas Enclave and the site where the work was being carried was near Safdarjung Hospital. PW4 stated that contract for doing plaster work of Operation Theater Hall was with deceased Kokil Yadav and it was completed some days prior to the day of occurrence. As per PW4, on 13/08/2005 deceased Kokil Yadav came to settle his account and PW4 told him that his accounts were not ready but deceased told PW4 that he had to make payments to labours, so PW4 gave Rs 7,000/ as advance to the deceased and the deceased went away.
21. PW5 Sh Kameshwar Paswan is the star prosecution witness. He testified that at around 5/6 pm on 15/08/2005 the deceased had come to his jhuggi at construction site to pay him Rs 100/ against Rs 120/ due for two days work done as labour with contractor deceased. After about half an hour accused also came there. PW5 stated that accused told deceased to provide some eatables and drinks, upon which PW5 told accused that it was a SC No. 18/09 18/55 State Vs. Kamal national holiday and nothing was available on that day but accused insisted that deceased gave him money from which accused brought liquor. PW5, deceased and the accused had said liquor. PW5 stated that thereafter he dropped deceased and accused at the gate of construction site at around 7.30/8 pm. On cross examination by Ld. Addl. PP, PW5 deposed that when he dropped the accused and deceased at the gate of construction site, at that time the deceased was under the influence of liquor and was not in a position to properly move. Such position was described by PW5 as "ladkhada raha tha". PW5 stated that he had told the accused to drop the deceased to to his jhuggi and at that time watchman Rupesh of construction site was also present there.
22. PW6 Sh Sajjaque deposed that deceased was residing with him in the jhuggi adjacent to a building near Safdarjung Hospital.
PW6 stated that in the night of 14/08/2005 deceased had also slept in the said jhuggi. On 15/08/2005, it was holiday and PW6 stated that deceased remained there till afternoon and at about 4/5 pm deceased went away from the jhuggi saying that he was going to Sector SC No. 18/09 19/55 State Vs. Kamal IV R.K Puram back side where he has to give money to someone. As per PW6, later deceased did not return.
STATEMENT OF ACCUSED:
23. Thereafter accused was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused.
Accused pleaded innocence and false implication. 23(i) Accused denied of recovery of Rs 7100, Ex PW10/P4 (collectively) comprising four currency notes of Rs 500/ denomination and fifty one currency notes of Rs 100/ denomination belonging to deceased Kokil Yadav from his inner pocket of worn pants. Accused also stated that Tshirt, Ex PW10/P3, was not belonging to to him and not seized from him. Accused stated that he was innocent and falsely implicated in this case. Accused denied to lead defence evidence.
23(ii) When accused was examined under Section 313 Cr.P.C on 05/03/2011, he had stated his age to be 22 years, while the crime in question was of year 2005. Need arose for recording statement of accused under Section 165 of Evidence Act. When examined under SC No. 18/09 20/55 State Vs. Kamal Section 165 Evidence Act on 14/03/2011, the accused stated he had never gone to school, was not educated at all, was taught by his cousin to write his name only, was born in Village Raveli but not knowing the date or month or year of his birth, neither he himself nor any of his relatives had any document as his age proof, was of age 18 years at the time of arrest but police wrote his age as 22 years, had told his age as 22 years on 05/03/2011 because when arrested, his age was written as 22 years at police station. From record or even otherwise, there was no document or material to prima facie show juvenility of accused, to even conduct an inquiry in that regard. ARGUMENTS
24. I have heard the arguments of Ld. Addl. PP for the State, the defence counsel and the accused himself, perused the record including the evidence led and given my thoughts to the rival contentions put forth.
24(i) Ld. Addl. PP argued that the case was based on the circumstantial evidence which proved the guilt of the accused in committing crime of murder of deceased Kokil Yadav. SC No. 18/09 21/55
State Vs. Kamal Ld. Addl. PP further argued that the deceased had consumed liquor with the accused and PW5 in the evening of 15/08/2005 and in terms of testimony of PW5 , PW5 had dropped deceased and accused at the gate of construction site at around 7.30/8 pm on 15/08/2005; deceased was last seen accordingly in the company of accused; in terms of testimony of Autopsy Surgeon PW3, the time since death of Kokil Yadav was approximately three and half days, while the postmortem was started at 2.25 pm on 19/08/2005; the cause of death was due to cranio cerebral injuries caused by blunt force impact with a blunt and hard object/weapon and PW3 also opined that the injuries could be caused by the stone Ex P1; at the time of arrest on 17/08/2005 the accused was wearing blood stained T shirt Ex PW10/P3 on which blood of A Group was detected which matched with the blood group A of deceased; Rs 7100/, Ex P10/P4 (collectively) were recovered from the possession of accused at the time of his arrest which were taken out by the accused from the pocket of the deceased in the park for which accused assaulted deceased by a big stone lying nearby.
Ld. Addl. PP argued that the chain of circumstantial SC No. 18/09 22/55 State Vs. Kamal evidence provided the complete live link of the incident and the deceased having been last seen in the company of accused before his death in the intervening night of 15/16.08.2005; the duty shifted to accused to explain under what circumstances accused had parted the company of deceased, which burden accused failed to discharge; accused even did not whisper as to when and how he parted the company of deceased, in the course of his statement under Section 313 Cr.P.C.
Ld. Addl. PP argued that herein it is the case of total denial on the part of accused and he even did not make any attempt to explain about the incriminating evidence even during the course of his statement.
Ld. Addl. PP also argued that though in the course of appreciation of the evidence, motive is not required to be proved on record for commission of crime but yet in this case the motive of the crime has been proved on record i.e Rs 7100/ taken out from the pocket of the deceased by the accused, recovered from the accused at the time of his arrest which will lend additional weightage/support to the prosecution version.
SC No. 18/09 23/55
State Vs. Kamal Also, Addl. PP argued that non joining of public witnesses at the time of arrest of accused, seizure of T shirt and recovery of Rs 7100/ from the person of accused would in no way be fatal to the prosecution case.
Ld. Addl. PP argued that even Autopsy Surgeon, PW3, in his opinion inter alia found that there was smell of liquor even after three and half days of the death of the deceased, when the autopsy on the dead body was performed. The Autopsy Surgeon had also denied the suggestion that the injuries on person of deceased could be caused due to fall of victim over the stone.
Ld. Addl. PP argued that the statement of PW5 gets corroboration from the testimony of PW2 Sh Abdul Rehman and the diary of the deceased was having the phone number of PW2 and when called PW2, identified the dead body of deceased.
Ld. Addl. PP argued that the circumstances unmistakably and inevitability lead towards guilt of accused. The chain of circumstances proved by the prosecution gains more weightage in the absence of explanation in any manner during statement of accused on questions put to him and the prosecution has proved its case SC No. 18/09 24/55 State Vs. Kamal against the accused, beyond reasonable doubt. 24(ii) Ld. Defence Counsel argued that the prosecution has bolstered case against the accused on false charges, the brain child of IO; prosecution has failed to connect the accused with the crime with cogent evidence. It was argued by Ld. Defence Counsel that it was improbable on the part of the accused to pick up the big stone , Ex P1, from the original position and then to hit the deceased with it. Even if such stone could have been hit then the impact of striking of such stone on a skull of deceased would have been much graver and would have made the skull of the deceased flat, which has not been in this case. It was also argued that PW4 an employee of company did not produce any cogent evidence in the form of any account book or any statement of account for giving of Rs 7000/ to the deceased and mere bald assertion of giving of Rs 7000/ by PW4 to the deceased is not proved by any cogent evidence. Also was argued that PW5 alleged to have worked with deceased for two days but no record of doing of such work was seized nor proved; even what prompted police to give beating to PW5 remains unexplained. Ld. SC No. 18/09 25/55 State Vs. Kamal Defence Counsel also argued that PW6 had not said how much money or to which person the deceased had to give money, while in the course of his examination, PW6 stated of police having not recorded his statement. Ld. Defence Counsel argued that joining of independent witnesses in the apprehension of accused, his search and seizure of the case property was necessary as a safe guard to wrong arrest and false implication of accused and herein not only that independent witnesses have not been joined in the arrest, search and seizure from accused but even no action has been taken against such refusing persons, while even from amongst the available vegetable shopkeepers, none has been joined in investigation. It was also argued that even chance prints were not lifted from the currency notes; the investigating officer/ Inspector Om Parkash, PW18 , did not know from w here call was made to PW2 Sh Abdul Rehman; the pocket diary Ex PW2/1 had printed calender of 2006 at its back, so the diary was of 2006 and foisted upon the accused, though the name of Manoj was alleged to have been mentioned in the diary but such Manoj was not examined in investigation or in court but withheld as a witness and he could have deposed contrary to the case of SC No. 18/09 26/55 State Vs. Kamal prosecution. Also was argued that the writings in the said diary Ex P2/1 were not got tallied or compared with the admitted writing(s) of the deceased so as to prove that the diary belonged to the deceased. It was argued that there was no mention of Mosque in the site plan; no fiber of cloth was detected upon the stone Ex P1, while as per the case of prosecution, if such a stone is lifted by an accused and hit upon the head of deceased then in course of said act necessarily the fibre of cloth would have attached with such stone which was not a fine polished stone. It was also argued that the prosecution has miserably failed to prove its case against the accused and accused deserves acquittal.
25. The prosecution case is based on circumstantial evidence. The recovery of the dead body of the deceased on the morning of 16/08/2005 had put the criminal law into motion. At the scene of crime, there was no eye witness of the crime. The investigating agency had difficult task ahead to trace the culprit. In such case of murder, it is difficult to get the clinching evidence, therefore, the circumstantial evidence is used to nab the culprit. The crime SC No. 18/09 27/55 State Vs. Kamal committed can be proved by direct evidence as well as by indirect or circumstantial evidence. However, the court needs to be cautious while appreciating the circumstantial evidence. When a case squarely rests upon the circumstantial evidence, the inference of guilt can be justified when all the incriminating circumstances are found to be incompatible with the innocence of accused. There are catena of judgments of the Apex Court giving the guidelines how the circumstantial evidence is appreciated and what should be the standard of circumstantial evidence when it is used against an accused.
26. In AIR 1952 S.C. 343, "Hanuman Govind Nargundkar vs. State of M.P.," it was held that ''In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected SC No. 18/09 28/55 State Vs. Kamal whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.''
27. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on SC No. 18/09 29/55 State Vs. Kamal circumstantial evidence. These are :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so 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;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) 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."
28. In the light of the legal position, the evidence on record is to be appreciated. In the present case, the prosecution has relied upon the circumstantial evidence.
LAST SEEN EVIDENCE:
29. First of all, prosecution relied upon last seen evidence of PW5 Sh Kameshwar Paswan. Before proceeding to appreciate the SC No. 18/09 30/55 State Vs. Kamal statement of PW5, it would be appropriate to know what the Hon'ble Supreme Court has to say about "last seen evidence". 30(i) In the case of "State of U. P. vs. Satish, "AIR 2005 SUPREME COURT 1000, it has been observed as under:
"The last seen theory comes into play where the time gap between the point of time when accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
30(ii) In case of Ramreddy RajeshKhanna Reddy Vs. State of A.P. 2006(10) SCC 172, it has been observed as under:
"The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author SC No. 18/09 31/55 State Vs. Kamal of the crime becomes impossible. Even in such cases, the court should look for some corroboration."
30(iii) The law is very well settled that the last seen evidence is vital evidence when the case of the prosecution is based on circumstantial evidence. The court has to be circumspect and look for some corroboration.
31. Coming to the facts of the present case, PW6 Sh Sajjaque testified that at about 4/5 pm on 15/08/05 deceased Kokil Yadav went away from the jhuggi saying that he was going to Sector IV, R.K Puram back side where he has to give money to someone and thereafter deceased did not return.
32. PW5 Sh Kameshwar Paswan deposed that at around 5/6 pm on 15/08/2005 the deceased had come to his place to pay him Rs 100/ and about half an hour later the accused came there. After the accused asked deceased to provide some eatables and drinks, PW5 told accused that it was a national holiday and nothing was SC No. 18/09 32/55 State Vs. Kamal available but on insistence of the accused, deceased gave money and accused brought liquor which was consumed by the deceased, accused and PW5. As per PW5, he had dropped the deceased and accused at the gate of construction site at around 7.30/8 pm when accused was not even in a position to properly move and position of accused explained by PW5 was "ladkhada raha tha". PW5 stated that Rupesh, watchman of construction site was also present there. Though said Rupesh has been cited as a prosecution witness but he could not be brought into the witness box by the prosecution and the process serving agency as he was reportedly not residing at the given address and even he was ordered to be served through IO/SHO as well as DCP South. Despite efforts, even the IO PW18 could not locate the said PW Rupesh.
33. In the testimony of PW5 there is variation regarding the way of movement of deceased at the gate of construction site where they had gone from the hut of PW5. In the course of cross examination by Ld. Addl. PP, the condition of deceased at that time was described as "ladkhada raha tha". In the course of cross examination by Ld. SC No. 18/09 33/55 State Vs. Kamal Defence Counsel, PW5 elicited that the accused and the deceased were properly moving when they left the construction site.
34. PW3 Dr. Allexander, doctor who conducted postmortem, inter alia, had opined that since the alcohol smell was coming from the 100 ml of fluid contents in stomach even after three days of the death, from the body of deceased on the day of postmortem, it appeared to him that the deceased was heavily drunk at the time of incident. The aforesaid medical finding corroborates the version of PW5 narrating the version of position of deceased when last seen at 7.30/8 pm as "ladkhada raha tha", being unable to properly move. The later version of PW5 of saying deceased was properly moving when they left the construction site, in the course of cross examination of Ld. Defence Counsel, can be attributed to the fact of his response as such to the piercing cross examination by way of exaggeration with imaginary facts, embroidering his version. This Court is duty bound to scrutinise the evidence carefully and in terms of the felicitous metaphor, separate the grain from chaff since the maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) is SC No. 18/09 34/55 State Vs. Kamal neither a sound rule of law nor rule of practice, nor is accepted in criminal jurisprudence in India. Here hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments.
35. From the testimony of PW5 it has been proved, beyond reasonable doubt, that at around 7.30/8 pm PW5 had last seen the deceased in the company of accused when he had dropped them at the gate of construction site.
36. During the course of statement, under Section 313 Cr.P.C, in answer to question no. 26, accused instead of making atleast an attempt to explain or clarify the incriminating circumstances inculpating him and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by this Court, lost the opportunity to explain them. Once prosecution discharged its burden that the deceased was last seen in the company of the accused at 7.30/8 pm on 15/08/05 in terms of testimony of PW5, it was obligatory on the accused to SC No. 18/09 35/55 State Vs. Kamal explain the circumstances in which the deceased and accused parted company.
37. In "Sahadevan v. State, "AIR 2003 SUPREME COURT 215, it was held that "if the prosecution, based on reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. See Joseph v. State of Kerala (2000 (5) SCC 197)."
Also was held that "the absence of motive would not hamper a conviction when the circumstances relied upon by the prosecution were proved beyond reasonable doubt."
38. In "Joseph v. State of Kerala,"AIR 2000 SUPREME COURT 1608, it was held that "During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood selfcondemned. Such incriminating links of facts could, if at all, have been only SC No. 18/09 36/55 State Vs. Kamal explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000 (1) SCC 471). That missing link to connect the appellantaccused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy."
39. In "Kusuma Ankama Rao v. State of A. P.,"2008 CRI. L. J. 3502, it was held that "Time gap between point of time when accused and deceased were seen together and deceased is found dead, should not be large."
40. PW3 Dr. Allexander also opined in terms of his postmortem report Ex PW3/A of having started postmortem at 2.25 pm on 19/08/2005 and time since death was three and half days. In terms thereof death of deceased took place in the intervening night of 15/16.8.05. The time gap between the point of time when accused and deceased were seen together by PW5, when the deceased died and SC No. 18/09 37/55 State Vs. Kamal the dead body of deceased was found in the early hours of next morning, accordingly was not large.
41. In "Shashi Shekhar v. State,"2007 CRI. L. J. 4193, it was held that "Just because these witnesses are police officials it cannot be said that their evidence is not of an independent character. They are all Government servants and there is a presumption under Section 114, illustration (e) of the Evidence Act regarding the fact that all official acts by Government servants were regularly performed. If an accused wants to rebut this presumption provided under Section 114, illustration (e) of the Evidence Act he can do so by bringing on record relevant material either by producing his own evidence or during the cross examination of the witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts which the police witnesses claimed to have performed while discharging their official duties during the investigation of a crime."
42. Herein the witnesses of recovery of currency notes, Ex. PW10/P4, from the accused as well as seizure of T shirt of accused, Ex PW10/P3, vide memo Ex PW10/F are PW17, PW10 and the investigating officer PW18. Merely because these witnesses are SC No. 18/09 38/55 State Vs. Kamal police officials and no independent witnesses from amongst shopkeepers or public were joined, would not be sufficient in itself to throw away their testimony over board. No material contradiction or infirmity could be carved out from their sworn statements to doubt the credibility and trustworthiness of these government servants. PWs 10,17 and 18 had no animus against the accused to falsely implicate him. There is no evidence on record by which a doubt may enter the judicial mind regarding the genuineness of the acts of recovery of the aforesaid currency notes and seizure of the aforesaid T shirt from accused, which the police witnesses claimed to have performed while discharging their official duties during the investigation of a crime. PW18 explained that he had not cut the portions of the T shirt, Ex PW10/P3, which was sealed in a pullanda at the spot of arrest of accused having then the blood stains and was sent to FSL for examination, at which place the portions of the T shirt containing blood stains were cut and remaining were sent back while still there were blood stains visible on the T shirt. Accordingly, in terms of presumption under Section 114, illustration (e) of the Evidence Act, the presumption existed that the official acts, aforesaid, were so SC No. 18/09 39/55 State Vs. Kamal regularly performed by government servants PWs 10,17 and 18. The aforesaid presumption has not been rebutted in any manner by the accused from evidence and material on record.
43. The accused and the defence counsel before examination of accused under Section 313 Cr.P.C had admitted the two FSL reports dated 31/01/06, which accordingly can be so read in evidence.
44. In terms of these reports on record, the Forensic Expert from FSL Rohini, Delhi in his result of analysis of exhibits had inter alia opined that blood detected on T shirt, Ex PW10/P3, was of A Group and the blood of blood sample of deceased was also of A Group. The group of blood detected on the stone, clothes of deceased could not be ascertained. In terms of aforesaid report of the Forensic Expert, the blood of group of deceased was found on the aforesaid T shirt Ex PW10/P3 of accused.
45. Establishing proof of motive for the crime of murder is not a sine qua non for proving of case of murder by the prosecution. SC No. 18/09 40/55
State Vs. Kamal Yet, in this case, the prosecution has been able to prove the complete live link of chain of circumstances suggesting and connecting the accused with the crime in question. PW5 had last seen the deceased in the company of accused at 7.30/8 pm at the gate of construction site. In the ensuing night the death of deceased takes places. A big stone, Ex P1, having blood stains, vivid and clear in the photographs, Ex PW15/P5 to P8, was seen lying nearby the head of deceased. Injuries revealed on the external examination of body of deceased in postmortem and opinion of doctor conducting postmortem, PW3, also confirmed the death of deceased to have been caused by such stone, Ex P1; in the evening of 17/08/2005, on the pointing out of secret informer accused was apprehended wearing T shirt, Ex PW10/P3, having blood stains of blood group A, which was the blood group of deceased. PW4 Sh Sunil Kumar Mishra confirmed of having himself given Rs 7000/ as advance to deceased on 13/08/2005. From accused currency notes Rs 7100/, Ex PW10/P4, were recovered to be belonging to deceased for which he did not even make atleast an attempt to explain or clarify the incriminating circumstances inculpating him, not only lost the opportunity but stood SC No. 18/09 41/55 State Vs. Kamal self condemned. Such incriminating links of facts could, if at all, have been only explained by the accused and by nobody else, they being personally and exclusively within his knowledge. Blunt and outright denial of every one and all the incriminating circumstances by accused provided additional links to connect him with the death and the cause for death of victim. Accused failed to explain in what circumstances he parted the company of deceased. Aforesaid currency notes, Ex PW10/P4, recovered from the accused and belonging to the deceased clearly proved even the motive for the crime. It acts additional supports to the fact of guilt of accused.
46. In "Atley v. State of U.P.,"AIR 1955 SUPREME COURT 807, it was held that "where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion."
47. There is no material proved on record, not even to suggest that the young accused could not have picked up the stone, Ex P1, SC No. 18/09 42/55 State Vs. Kamal from the spot and then hit the deceased with such stone. Improbability of the act of picking of the stone, Ex P1, by the accused and striking it on the head and face portion of the deceased is neither proved on record nor apparent from the face of record. The Autopsy Surgeon, PW3,gave clear opinion, elicited here in above, that the injury no. 5 was sufficient to cause death independently and collectively; also that such injuries could be caused by stone, Ex P1, and impact of this such stone from 3 to 4 feet is sufficient to cause death of the victim.
48. When after more than three days of the death of the deceased, the Autopsy Surgeon, PW3, smelled of alcohol from 100 ml fluid contents of stomach of deceased in the process of postmortem, story of prosecution gets credence regarding the fact of the deceased consuming liquor in the company of accused and PW5 and when the deceased was highly under the influence of liquor, then the accused struck the blow of stone on the head portion of the deceased at the place of occurrence.
SC No. 18/09 43/55
49. Non seizure of accounts book from PW4 or non production of any voucher or account of deceased for proving fact of giving of Rs 7000/ by Accountant PW4 would in itself be not sufficient to discard the sworn statement of PW4 or to brush aside other facts proved by prosecution and to disbelieve the substratum of prosecution version. Non production of diary of accused would also not be fatal to the prosecution case. PW5 in the course of his testimony did not say that any writing/document/record was prepared for his two days work with the deceased. There was accordingly no occasion for seizing any such document/record. Non calling of crime team at the spot by the officers of investigating agency at the time of apprehension of accused, seizure of currency notes from possession of accused and the seizure of T shirt of accused and for that matter even non lifting of the chance prints from the currency notes would also not in themselves be sufficient to throw away the prosecution case over board. Inability of the investigating officer to testify after more than five years of the commission of crime as to the place from where he had made the call to PW2 would also not be sufficient to cast a shadow of doubt over the presence of PW2 at the spot on being SC No. 18/09 44/55 State Vs. Kamal called there. There is also nothing unusual in printing the calender of next year at the back page of the small pocket diary and same being existing in the pocket diary of deceased cannot per se be a ground of acquittal. Further, non sending of the writing of the deceased in the pocket diary, Ex PW2/P1, with any writings of deceased after procuring them from else where for opinion of handwriting expert by officers of investigating agency also cannot be made basis of acquittal of the accused. Fact of non conducting of any enquiry from Manoj in investigation, whose name found mentioned in diary of deceased, would not make investigation tainted per se. Further, non detection of any fibre of cloth from stone, Ex P1, would not falsify prosecution version. Admittedly, the Mosque was not in the park where the dead body was found in the morning of 16/08/2005 whose site plan, rough one was initially prepared by the IO and then a scaled site plan by Draughtsman PW12. Since no Mosque was situated inside the park, there was no occasion for mention of the Mosque in the site plan of the scene of crime. Moreover, any latches on the part of officers of investigating agency in respect of non sending of writing of the deceased for handwriting opinion, non describing of SC No. 18/09 45/55 State Vs. Kamal the two squares in site plan Ex PW18/A, described as abandoned tube well in testimony of PW18; non production of the entries in Log Book of government vehicle used in the course of investigation would not entitle the defence to raise the presumption of the accused being not author of the crime or discard the over whelming prosecution evidence in toto. The grounds of defence for acquittal argued by the Ld. Defence Counsel do not hold water nor are sufficient to disbelieve the substratum of the prosecution version emanating out of the testimonies of prosecution witnesses appreciated herein before and thereon to acquit the accused.
FINAL ANALYSIS AND CONCLUSION:
50. In the case of Settu v. State of Tamil Nadu, AIR 2006 SUPREME COURT 2986, it was held that ''the test laid down in Virsa Singh v. State of Punjab, AIR 1958 SC 465 for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that SC No. 18/09 46/55 State Vs. Kamal the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present the injury that was intended to be inflicted.
Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
Clause (c) of Section299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so SC No. 18/09 47/55 State Vs. Kamal intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.''
51. The factual scenario is examined in the background of the legal principles set out above. PW5 proved that the deceased was last seen in the company of accused on 15/08/2005 at 7.30/8 pm at the gate of construction site. PW3 proved that as per his postmortem on body of deceased started at 2.25 pm on 19/08/2005 the deceased had expired three and half days before. Deceased had expired in the intervening night of 15/16.08.2005, accordingly. In the morning of 16/08/2005 at 7.30 am dead body of deceased was found lying at the park, the place of occurrence. On 19/08/2005, in the evening accused was found wearing T shirt Ex PW10/P3 containing blood stains. The Forensic Expert opined the blood stains on T shirt Ex PW10/P3 to be of Blood Group A matching with the blood group A of deceased. From the possession of accused also currency notes of Rs 7100/, Ex PW10/P4, were recovered. Stone, Ex P1, having blood stains was also recovered from the scene of crime though the group of blood of the blood stains on the stone could not be detected, yet SC No. 18/09 48/55 State Vs. Kamal the Autopsy Surgeon, PW3, opined that the said stone is sufficient to cause injuries found present on the body of deceased and injury no. 5 and the corresponding internal injuries were sufficient to cause death in the ordinary course of nature which injuries could be caused by the impact of big stone, Ex P1, from three to four feet. Also, in terms of opinion of PW3 since the alcohol smell was coming from 100 ml of fluid contents in stomach in the course of postmortem even after three days of death, so it appeared to PW3 that the deceased was heavily drunk at the time of incident. The conclusion emerging from the aforesaid circumstances, proved on record, is that the acts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they are not explainable on any other hypothesis except that the accused is guilty; the circumstances are of a conclusive nature and tendency when the entire circumstances are seen and read together and they exclude every possible hypothesis except the one put forth by the prosecution qua guilt of the accused and besides that the chain of the evidence is so complete which does not have any reasonable ground for the conclusion consistent with the innocence of the accused and shows that in all human probability the SC No. 18/09 49/55 State Vs. Kamal act must have been done by the accused. The circumstances collectively prove that the accused assaulted the deceased by stone, Ex P1, in the park, the place of occurrence, while the deceased was heavily under the influence of liquor, which act of accused was with the motive of removing Rs 7100/ , Ex PW10/P4, from the possession of deceased.
52. Taking note of the weapon, stone, Ex P1, used by the accused and the place where injuries were inflicted including the injury no. 5 viz. laceration on the right tempero parietal aspect of head, size 2.5 cms x 0.5 cms x 0.5 cms., the opinion of the Autopsy Surgeon, PW3, that aforesaid injury no. 5 and the corresponding internal injuries were sufficient to cause death in the ordinary course of nature and the death of deceased Kokil Yadav having been caused due to cranio cerebral injuries caused by blunt force impact with a blunt and hard object/weapon viz the stone, Ex P1; later to 7.30/8 pm of 15/08/2005 in the night; the facts and circumstances of the case proved, that the accused Kamal was having the intention to inflict injury no. 5 on the head portion of deceased Kokil Yadav, which in SC No. 18/09 50/55 State Vs. Kamal ordinary course of nature is sufficient to cause death; the said injury found to be present was the injury that was intended to be inflicted. Accordingly, accused Kamal committed culpable homicide which amounted to murder. Prosecution has been successful in proving its case against accused Kamal for offence under Section 302 IPC for which he is held guilty and convicted accordingly. Announced in the open court (GURVINDER PAL SINGH) on dated 21/03/2011 ASJ (FTC)/SD/ NEW DELHI.
SC No. 18/09 51/55 State Vs. Kamal IN THE COURT OF SHRI GURVINDER PAL SINGH ADDL. SESSIONS JUDGE(FTC), SOUTH DISTRICT SAKET COURTS, NEW DELHI Session Case No. 18/2009 State Vs. : Kamal S/o Sh Punnu R/o Village Raveli, PS Nanghat, District Durg, Chattisgarh FIR No. 433/05 P.S. R.K Puram U/s 302 IPC ORDER ON SENTENCE 22/03/2011 Present: Sh. A.T. Ansari, Ld. Addl. PP for the State. Convict in person in judicial custody. Sh Ravi Qazi, Ld. Counsel for the convict.
2. I have heard submissions of the Ld. Addl. PP, convict and Ld. Counsel for convict yesterday and have perused the record. SC No. 18/09 52/55
3. Convict has been held guilty for offence under Section 302 IPC for having committed the murder of Kokil Yadav, now deceased, by blow of stone, Ex P1, on his head portion.
4. Convict has submitted that he is of age 24 years, unmarried, uneducated person, before his arrest was doing work of Machine Operator, sole bread earner having mother to support, having father expired about 15 years ago, four elder sisters previously married and in their respective families. Lenient view is prayed for the convict.
5. The convict assaulted Kokil Yadav, now deceased, with stone Ex P1 on head portion of his body in the park to wrongfully gain Rs 7100/ from the said deceased.
6. Life imprisonment is the rule and death sentence is an exception. Upon taking an overall global view of all the circumstances in the light of the pronouncements of Bachan Singh v. State of SC No. 18/09 53/55 State Vs. Kamal Punjab [1980(2) SCC 684] ; Machhi Singh v. State of Punjab, 1984(2) RCR (Criminal) 412 reiterated in Devender Pal Singh v. State of NCT of Delhi, 2002(2) RCR(Criminal) 515 ; Ankush Maruti Shinde and others Vs State of Maharashtra, 2009(2) R.C.R.(Criminal) 868 (SC) and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case at hand are such that death sentence is not warranted, since the present case does not fall in the rarest of rare cases. The murder was neither extremely brutal, grotesque, diabolical, revolting, nor in dastardly manner so as to arouse intense and extreme indignation of the community.
7. Even Ld. Addl. PP submits that the case at hand does not fall in the rarest of rare cases.
8. In these circumstances and having regard to the facts and circumstances of the present case, I hereby sentence the convict Kamal to undergo imprisonment for life and to pay a fine of Rs 2,000/ in default Simple Imprisonment for six months under section 302 SC No. 18/09 54/55 State Vs. Kamal IPC,which sentence shall meet the ends of justice in this case.
9. Convict was arrested on 17/08/2005, produced in court on 18/08/2005, sent to judicial custody that day since when he is in judicial custody in this case. Benefit u/s 428 Cr.PC be also given to the convict.
10. Committal warrant be prepared. Copy of the judgment and order on sentence be supplied to convict free of cost immediately.
Fine deposited.
File be consigned to the record room.
Announced in the open court (GURVINDER PAL SINGH) on dated 22.03.2011 ASJ (FTC)/SD/ NEW DELHI. SC No. 18/09 55/55