Delhi District Court
State vs Arun @ Khadag Singh on 10 September, 2009
-::1::- FIR No 47/08
PS: Ashok Vihar
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE( NDPS):
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 47/08
Police station: Ashok Vihar
U/s 302 IPC
State V/s Arun @ Khadag Singh
1. Session Case no. : 05/08/09
2. Name of the accused : Arun @ Khadag Singh S/o
and parentage Chhama Pradhan @ Suman
Prasad R/o Jhuggi no.
A/339, S.S. Nagar, Wazirpur
Industrial Area , Delhi
3. Date of commission of : Between 12/2/2008
offence and13/2/2008
4. Arguments concluded : 26/8/2009
on
5. Date of Judgment : 10/09/09
6. Date of final order : 15/09/2009
JUDGMENT
1) According to the prosecution case on 13/2/2008 at about 8.15AM, Inspector S. K. Sharma has received an information through PCR regarding the dead body lying at Wazirpur Industrial Area (WPIA) C-14, near Railway Line. He alongwith HC Sahib Singh reached there where SI Amar Singh alongwith Ct.Subhash and Ct. Narender were already present and a male dead body aged about 20-21 years was lying near the Railway line; one wrist -::2::- FIR No 47/08 PS: Ashok Vihar watch was lying near the head of the dead body and one blood stained brick, concrete (stone) with blood were also lying near the dead body and the head and mouth were crushed; the crime team alongwith senior officers were called at the spot; the photographs of the scene of crime were taken; he prepared the rukka and sent Ct. Narender to Police Station for registration of the case.
2) The dead body was identified as Sonu @ Deepak resident of Jhuggi no. A/135, S.S.Nagar, Wazirpur Industrial Area. During investigation, it was revealed that there was enmity between the deceased and accused who was pressurizing the deceased for a settlement in a criminal case pending trial. On 12/2/2008, accused allegedly came to the house of the deceased and took him with him. The accused was arrested in this case, who during interrogation has admitted to have committed the murder of the deceased. After completion of investigation, charge sheet was filed.
3) On 07/7/2008, a charge under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4) In support of its case prosecution has examined in total 15 witnesses.
5) The brief summary of the deposition of the prosecution -::3::- FIR No 47/08 PS: Ashok Vihar witnesses is as under:-
1. FORMAL WITNESSES PW6 ASI Ramesh Chander who was working as photographer in the crime team of North-West District and he alongwith ASI Satpal, Incharge of Crime team has reached on the spot and on the instructions of the Incharge he had taken the photographs Ex. PW6/15 to Ex. PW6/22 and the negatives Ex. PW6/1 to Ex. PW6/14.
PW8 HC Satpal was working as MHC (M) on 13/2/2008 in the Police Station Ashok Vihar and deposed that Inspector S.K.Sharma has deposited with him 4 sealed parcels with the seal of SKS, one bicycle, jamatalshi of the dead body, clothes of accused and his shoes vide entry no. 3776 in register no. 19. The copy of entry was proved as Ex. PW8/A. On 01/04/2008 on the direction of Inspector S.K.Sharma he handed over two sealed parcels containing brick and concrete stone to Ct. Subhash for obtaining opinion of the doctor which were redeposited on 4/4/2008 containing the seal of KG (BJRM) vide entry Ex. PW8/B. On 21/4/2008 he has sent 8 sealed parcel vide RC no. 01/21 to the FSL vide Entry Ex. PW8/C stating that the same were redeposited on 30/6/2008 vide entry Ex.PW8/D. He has proved the copy of the Road Certificate as Ex. PW8/E and acknowledgment of the case acceptance by FSL as Ex. PW8/F. -::4::- FIR No 47/08 PS: Ashok Vihar PW9 SI Anil Kumar while working as duty officer 13/2/2008 from 8.00 AM to 4.00 PM has received a rukka at 11.45AM through Ct. Narender and recorded the FIR Ex. PW9/A. His endorsement on the rukka was Ex. PW9/B. He has also proved copy of DD no. 10A as Ex. PW9/C and copy of DD no. 14 as Ex.PW9/D. PW10 HC Devender while working as MHC(R) on 24/4/2008 in Police Station Ashok Vihar handed over the photocopy of FIR no. 240/07 u/s 324 IPC to Inspector S. K. Sharma and the said FIR was lodged by Complainant Mahipal. He has proved the photocopy of the said FIR as Ex.PW10/A. PW11 ASI Satpal has visited the spot on 13/2/2008 as Incharge of the Crime team stating that on his instructions the photographer took the photographs from various angles and he has proved his report as Ex.PW11/A. PW12 HC Raj Kumar was posted at Central Police Control Room (CPCR) and was on duty at channel no. 108 from 8.00 A.M to 2.00 P.M and had received the information at 8.06 A.M from Mohd.Wasim on Telephone about a dead body in a pool of blood and he had written the said information in the PCR form Ex.PW12/A (NW Zone) and also informed the local police.
PW13 SI Manohar Lal was posted as draftsman in North West District and on 18.4.2008 on the request of Inspector -::5::- FIR No 47/08 PS: Ashok Vihar S.K.Sharma he had prepared the scaled site Plan Ex. PW13/A.
2. MATERIAL WITNESSES PW1 Ct. Narender has reached the spot alongwith SI Amar Singh on receiving DD no. 10A at 8.15 AM regarding a dead body lying near the railway line of Wazirpur Industrial area and found one blood stained brick, concrete (stone) and a wrist watch near the dead body and blood was also scattering there. Inspector S.K.Sharma reached on the spot and the site was got photographed by the crime team and then prepared a rukka gave the same to him at 11.30 AM; he went to Police Station and returned with the FIR and gave the same to Inspector S.K. Sharma; the dead body was identified to be of Sonu @ Deepak son of Narottam by brother and mother of the deceased who has reached on the spot; accused present in the court was apprehended and was arrested vide Ex.PW1/A; on interrogation accused has admitted his guilt stating that the deceased was not permitting his brother to settle the matter u/s 324 IPC and for that reason he had given him liquor and murdered him; he has conducted the personal search of accused vide memo Ex. PW1/B; he recorded the disclosure made by the accused Ex. PW1/C and thereafter accused led them to his jhuggi no. A/339, S.S. Nagar, WPIA and got recovered the clothes and shoes -::6::- FIR No 47/08 PS: Ashok Vihar from the roof of the jhuggi which he was wearing at the time of the incident. The clothes and shoes were seized by the IO vide memo Ex.PW1/D; the accused also pointed out the place of occurrence vide Ex.PW1/E; he has also identified the clothes of the accused i.e black coloured jacket, one trouser and T-shirt of blue colour Ex. P1 to Ex.P3, one pair of shoes was identified as Ex. P4.
In his cross-examination by Ld defence counsel he has stated that several jhuggi dwellers were gathered on the spot; one concrete stone was having blood stains and the blood was also lying on the ground; he did not remember the colour of the clothes of the deceased; he did not remember at which time the crime team reached at the spot; he did not remember at which time he returned to the spot alongwith rukka and copy of the FIR and at the time of recovery of the clothes and the shoes by accused several public persons were present but none agreed to become witness.
PW2 Ct. Subhash was also one of the material witness who has joined the investigation with SI Amar Singh and deposed that on 13/2/2008 he has taken the dead body in the mortuary of BJRM hospital for preservation; after the postmortem of the dead body he received the sealed envelope containing blood sample and blood alcohol alongwith the clothes of the deceased and the sample seal which he handed over to the IO who seized the same vide seizure -::7::- FIR No 47/08 PS: Ashok Vihar memo Ex. PW2/A. He further deposed that on 01/04/2008 on the instruction of the IO he had taken the sealed parcel containing brick and concrete stone alongwith a request from the MHC(M) for getting opinion of the doctor from BJRM hospital but on that date opinion could not be obtained because of number of postmortem cases and the sealed parcels alongwith postmortem report were kept by the concerned doctor. On 4/4/2008 he again visited the mortuary of BJRM hospital and received the opinion from the concerned doctor alongwith postmortem report, sealed parcels, sample seal sealed with the seal of KGBJRM hospital which he handed over to MHC(M) stating that the sealed parcel were intact and not tampered with. He further deposed that on 21/4/2008 he has obtained 8 sealed parcels alongwith 3 sample seal according to the FSL-form from the MHC(M) vide Road Certificate no. 01/21 and deposited the same in FSL, Rohini and obtained the received copy of the Road Certificate which he handed over to MHC(M).
PW3 Mahipal Singh is the witness of last seen evidence and deposed that the accused was their neighbour and on 12/2/2008 in the evening at about 5.00 PM he came to their jhuggi and took his younger brother Sonu (deceased) with him on the pretext of having a round and also to bring the bicycle which Sonu had left at his duty place; at that time his brother and mother were also present and -::8::- FIR No 47/08 PS: Ashok Vihar deceased and the accused had left by saying that they would return in the evening alongwith bicycle; deceased Sonu did not return till night and he made a search for him at 3/4 places; in the morning police from Ashok Vihar Police Station informed his younger brother Vijay about the dead body of Sonu lying at Railway Line, Ashok Vihar. He further deposed that the accused had a quarrel with his younger brother Sonu at about 8 months ago and at that time he had intervened and the accused had inflicted a blade injury to him for which a case was registered at Police Station Ashok Vihar; accused had pressurised him to compromise in that matter but his younger brother Sonu had opposed the compromise; after the compromise talks, there was no date of said matter and in between this incident had occurred.
In his cross-examination by the Ld defence counsel, he has stated that on 12/2/2008 at about 5.00 PM he was present in his house alongwith his wife and mother and deceased Sonu; the accused alone came to their house for calling his brother Sonu and had come on foot; the accused and deceased left the house within 5 minutes; first accused left and then he was followed by deceased Sonu; Accused and Sonu had become friends after the quarrel between them a few months ago before this incident; the deceased was working in a Reliance showroom as Palledar at a salary of Rs.3,200/- the deceased -::9::- FIR No 47/08 PS: Ashok Vihar used to leave for work at 8.00AM and returned at 4.00PM; their brother Vijay also used to work in the same Reliance showroom in Pratap Bagh; Vijay had gone to work on the said date but Sonu had not gone to work on that day due to ill-health. He further deposed that he (PW3) used to leave for work at 9.30AM and returned by 6.00PM but on the day i.e 12/2/2008 he had returned early due to finishing of work; accused had visited their house in his presence once or twice before the incident; accused had pressurised to compromise in previous matter and also offered some money for the compromise.
PW4 Dayawati is mother of the deceased and has corroborated the deposition of PW3 on all material points regarding visit of accused to their house for taking deceased Sonu with him. She categorically stated that deceased left alongwith accused by saying that he would bring his bicycle left at his place of work; she has also uniformally deposed regarding the previous quarrel between accused and her son Mahipal (PW3) and also about the pressure exerted upon them for compromise by the accused and his mother in the previous matter; she further deposed that accused continued to contact Sonu (deceased) by visiting their house and also convinced him for compromise and accused deliberately be friended himself with Sonu for doing the wrong work and had -::10::- FIR No 47/08 PS: Ashok Vihar murdered him.
In her cross-examination she has stated that on 12/2/2008 at 5.00 PM she alongwith deceased and Mahipal were present; Sonu had gone for work on the fateful day and returned by 4.30 PM; apart from accused some other boys were also friends of the deceased but she did not know them; accused came alone to call deceased on that day and she was sitting down side in the jhuggi, therefore, she did not notice the dress and colour of the clothes of the accused; accused used to visit their house frequently; they did not make any complaint in the night about non-return of the deceased and he had never remained absent from the house in the night on any earlier occasion.
PW5 Vijay is the elder brother of the deceased. He was contacted by the police at his jhuggi no C-4 Lawrence Road, Keshav Puram, Delhi on 13/2/2008 at about 10.00 AM. He further deposed that he has seen the deceased last time in his company (Reliance shop at Rana Pratap Bagh) on 12/2/2008 at about 7.00 PM in the company of accused present in the court and one another boy namely Phool Chand was also with them; Sonu was not keeping well on that day and had gone to the company for taking his balance salary and the bicycle; at that time Phool Chand was in a haste and accused Khadag Singh was also telling to deceased Sonu for an early departure; despite his questioning their hurry and asking Sonu to -::11::- FIR No 47/08 PS: Ashok Vihar wait and to go with him, the accused and Phool Chand pressurised the deceased to accompany them and he left with them at about 7.30 PM.
In his cross-examination he has stated that he knew Phool Chand and accused Khadag Singh as friend of deceased Sonu; on the said date 12/2/2008 deceased did not go his duty due to ill-health as was told by him at 7.00 PM when he came in the company; there was no restriction on any employee being on leave to visit the company office for taking his belongings etc. He asked Sonu on 12/2/2008 at about 7.00 PM in his office as to where he was going and the deceased told him that he would go home but the accused and Phool Chand were saying that first they will go at some other place; deceased used to take drink occasionally but on the said date he had not taken drink due to ill-health and has taken medicines. He has identified the bicycle as Ex. P1 stating that the same was being used by his brothers deceased Sonu and Mahipal and deceased was using Ex. P1 since January 2008.
PW14 SI Amar Singh is the Investigating officer and has supported other witnesses regarding recovery of dead body near Railway Line Wazirpur Industrial Area, Delhi stating that the blood was lying near the body, one wrist watch was lying near the head of the dead body and one blood stained stone and one blood stained -::12::- FIR No 47/08 PS: Ashok Vihar brick were also lying at the spot; one bicycle was lying on the other side of the Railway line; the head and face of the dead body was smashed; Inspector S. K. Sharma, the SHO carried out investigation and seized the wrist watch and the blood from the spot with the help of cotton gauze after keeping it in a plastic container and prepared a cloth parcel; the blood stained brick was also seized and sealed with the seal of SKS and the seal after use given to him. The seizure memo proved as Ex. PW14/A; the seizure memo of bicycle is Ex. PW14/B; the search of the dead body was carried out vide memo Ex. PW14/E in which Rs. 20/- alone one chit containing a telephone number was recovered. He further deposed that in their statement mother and brother of deceased raised suspicion on Arun @ Khadag Singh who was arrested from near Mother diary at the instance of one secret informer and his arrest memo is proved as Ex. PW14/D. The accused made disclosure statement Ex. PW14/F and then led the police party to his residence from where he got recovered one jacket of jeans, one T-shirt, one pant and a pair of shoes stating that he was wearing the same at the time of occurrence. These clothes and pairs of shoes were taken into possession vide memo Ex.PW14/G and accused has also pointed out the place of occurrence vide memo Ex. PW14/H. The witness has further identified the brick as Ex. P1 which was still containing blood like -::13::- FIR No 47/08 PS: Ashok Vihar stains, the cement concrete stone was also identified as Ex. P2. He has further identified the jacket, trouser and T-shirt as Ex. P1 to Ex.P3 stating that the same were of accused; he has also identified the pair of shoes Ex. P4 stating that the same belonged to the accused.
In his cross-examination he has stated that he has returned the seal of the IO in the evening at about 8.30 PM after the deposit of the articles in the malkhana; the disclosure statement of accused was recorded near Mother diary booth, Wazirpur Industrial Area between 5.15 PM to 5.30PM; from there they went to the house of the accused alongwith accused at jhuggi no. A-339, Shahid Sukhdev Singh Nagar, Delhi; he did not remember who were present in the jhuggi at that time as they did not go inside the jhuggi because the accused went to the roof of the jhuggi and got recovered the clothes and shoes worn by him at the time of alleged incident; the way for going to the roof of the jhuggi was from outside the jhuggi; the accused himself told that the said jhuggi was his residence; IO enquired from some public persons but statement of no such person was recorded at the time of recovery of clothes and shoes at the instance of the accused; after the recovery of the clothes the same were seized and sealed with the seal of SKS and then accused was taken to the spot of the incident where he pointed out the spot; the bicycle was seized from the spot but no one -::14::- FIR No 47/08 PS: Ashok Vihar told them that the bicycle belonged to the deceased or any other person; fingerprints were lifted from the spot.
PW15 Inspector S. K. Sharma was posted as Inspector Investigation, Ashok Vihar on 13/2/2008 and has carried out the investigation in this case. He has supported other witnesses who participated in the investigation with him on all material points. He has deposed that on receiving DD entry from SI Amar Singh, he prepared Rukka Ex. PW15/A and got the case registered. He further stated that he recorded statement of Dayawati, mother of the deceased Ex. PW4/A and Mahipal Ex. PW3/A brother of deceased who named Arun @ Khadag Singh as the person having previous enmity with them; they also stated that the accused had taken the deceased with him. He further deposed that on 4/4/2008 he had received the opinion regarding weapon of the offence as Ex.PW7/E. He has also proved the FSL-report as Ex. PW15/B and the site plan Ex.PW15/C. He further stated that he was able to identify the articles recovered from the spot and has identified a wrist watch, CD Quartz Ex. P6 and the bicycle as Ex. P5 stating that the same were recovered from the spot. It was observed by the court that the blood stains were visible on the cracked glass of the watch.
In his cross-examination he has stated that both the witnesses Dayawati and Mahipal disclosed the name of the accused -::15::- FIR No 47/08 PS: Ashok Vihar and gave the facts in detail regarding the previous enmity; no public person was joined at the time of recovery of the clothes and shoes of the accused as no one was available at that time; the brick and the concrete stone were lying near the dead body but he had not taken the correct measurement of their distance from the dead body; when the accused was taken at the spot, he disclosed that he had killed the deceased by hitting the brick and the concrete stone at the time when the deceased was urinating .
3. MEDICAL WITNESSES PW7 Dr. Kulbhushan Goel, CMO, BJRM Hospital, Delhi had conducted the postmortem on the dead body of deceased Sonu on 14/2/2008 whose detailed report is as under :
On external examination the following injuries were found on the body:-
1. Laceration 4X .5 cm with crushed margines obliquelly placed at lateral end of right eyebrow, 2cm X .25 cm over medial side of right eyebrow, 2.5 X .5 cm vertical at right lateral canthus, three lacerations intermingled to each other in total area 7X 4.5 cm over middle of forehead, 5 cm X .5 cm vertical over middle aspect of left eyebrow and left upper eyelid, 4cm X . 75 cm over right fronto-
temporal regions, 4 X 1 cm over back of right ear with laceration of right ear, 14 cm X 2 cm over right parieto-occipetel regions, 7 X 2 cm over right occipetel regions, 2.5 X . 25 cm over left eyebrow, left ear lacerated, three -::16::- FIR No 47/08 PS: Ashok Vihar lacerations in total ear 10 X 5 cm over top of vault. All lacerations were having crushed margins.
2. Laceration 2.5 X .25 cm with crushed margins over right side of chin with laceration of right angle of mouth.
3. Fracture nasal bone and mandible bone at multiple sites.
4. Multiple pressure abrasions all over face at places and right lateral side of neck.
5. Laceration 4X .25 cm transverse just below right eye.
6. Few abrasions scattered at places over chest and medial wall of left axilla.
7. Internal Examination:- There were subscalp bruising alongwith lacerations and hematomas all over parietals, occipetel and patchy left temporal and all over frontal.
Depressed communitted fracture frontal bones and both parietals at vault area of sizes 7 X 3 cm and 10 X 4 cm respectively with few fissured radiating fracture lines. Meninges were torned at frontal and parietal lobes.
Brain matter was lacerated at frontal and parietal lobes. SAH was seen all over brain surface with blood clots over base of skull.
8. Opinion : All injuries were antemortem in nature caused by impacts of blunt object diverted upon. Cause of death was cranio-
cerebral damage as a result of blunt object diverted upon head by other party. Cranio-
cerebral damage was sufficient to cause death in ordinary course of nature. Time since death was about 40-41 hours.
9. The following articles were sealed and handed over to police.
1. Clothes of the deceased,
2. Blood in NaF for alcohol level estimation -::17::- FIR No 47/08 PS: Ashok Vihar
3. blood sample in gauze piece.
10.My detailed postmortem report is Ex. PW7/A which bears my signature at pt-A.
11.I have received 7 papers of Inquest including application for postmortem which were numbered and initialed by me.
12.Inquest for the postmortem is Ex PW7/B bears my signatures at pt-A and B and also bears my initials at pt-C. The other inquest papers are Ex. PW7/C bears my initials at pt-A which is form no. 25.35 (1) (B). The brief facts of the case are Ex. PW7/D bears my initials at pt-A. The dead body identification memos are Ex.
PW3/A and PW4/A which bears my initials at pt-B.
13.On 01/4/2008 an application was received from Inspector S.K. Sharma for opinion about weapons of offence in above case and produced two sealed packets inscriptions of which were SKS. On opening the smaller packet it was found to contain one brick (marked with SN65 and Ganesha symbol ) weighing about 3.25 kg having blood like stains at multiple places. On opening the bigger packet it was found to contain one big cement concrete stone of irregular shape weighing about 12.3 kg having blood like stains all over at places.
14.Opinion: The possibility of use of these two objects in causing injuries mentioned in PM report Ex. PW7/A cannot be ruled out. Both the objects were sealed separately alongwith their previous respective seals with the seal of KG and handed over to Ct. Subhash, 1517/ NW alongwith this opinion and sample seal. My detailed opinion is Ex. PW7/E which bears my signatures at pt-A. I can identify both the weapons of offence if shown to me.
The doctor has identified the brick Ex. P1 stating that the -::18::- FIR No 47/08 PS: Ashok Vihar same was produced before him for giving opinion. Similarly, he has identified the concrete stone Ex.P2 stating that same was produced before him for giving his opinion. As per his opinion, the possibility of use of these two objects in causing injuries mentioned in postmortem report Ex. PW7/A was not ruled out .
In his cross-examination he deposed that the crano- cereberal injuries as explained in postmortem report Ex. PW7/A were caused by blunt objects diverted upon head and such injuries could not be sustained by simple falling. He further stated that he has given his opinion on weapon of offence Ex. P-1 and Ex. P-2 on 4.4.2008.
6) In his statement U/s 313 Cr.PC the accused had denied the allegations stating that he was innocent and was falsely implicated.
7) I have heard Ld APP for the State and Ms. Kirandeep Kaur Ld Amicus Curiae for the accused. It is argued on behalf of the accused that the prosecution has miserably failed to prove its case because the alleged public witnesses are family members of the deceased who are interested witnesses and therefore are not reliable; the accused has been falsely implicated because of the previous enmity and the pendency of a criminal matter between him and the deceased; that the motive for the commission of the -::19::- FIR No 47/08 PS: Ashok Vihar offence has not been established; the case is totally based on circumstantial evidence and the chain of alleged circumstances has not been completed; there are material contradictions in the deposition of public witnesses because mother of the deceased Dayawati (PW4) stated in her cross-examination that deceased had gone at his work on the fateful day also and had returned by 4.30PM but Vijay(PW5) deposed that on 12/2/2008 the deceased did not go to his duty due to ill-health as was told by him at about 7.00 PM when he came in the company alongwith accused and one Phool Chand. It is further argued that the case of the prosecution suffers from various infirmities and discrepancies because the SI Amar Singh(PW14) who had participated in the investigation with Inspector S.K. Sharma (PW15) had contradicted other witnesses stating that the bicycle was seized from the spot but no one told them that it belonged to the deceased or any other person. It is argued that Dayawati (PW4) and Mahipal (PW3) were called at the spot as stated by PW15 and thereafter they were taken to BJRM mortuary where they identified the dead body. Mahipal (PW3) has deposed that the cycle make Hero-Jet Ex. P1 belonged to him and he had allowed the deceased to use the same and the said cycle was left by the deceased at the place of his work. Vijay (PW5) has also stated that -::20::- FIR No 47/08 PS: Ashok Vihar cycle Ex. P1 was being used by deceased Sonu and Mahipal. It is therefore argued by Ld Amicus Curiae that when these witnesses had gone to the spot, they must have identified the bicycle lying near the spot on the other side of the railway track. Further, no proof of ownership of bicycle has been placed on record and the story regarding bringing of the bicycle from his office by the deceased has been fabricated to create a false evidence of last seen and to plant the PW5 as witness having seen last time the deceased and the accused leaving the office place together. It is further argued that no fingerprints of accused were found on the alleged weapon of offence Ex. P1 and Ex. P2. As per FSL Report Ex.PW15/B, on Ex. 7C, Ex.7A and Ex.7B respectively i.e black coloured jacket, one trouser and one T-shirt of the accused, no blood was detected on the clothes (inadvertently exhibited as Ex.P1 to Ex. P3). With regard to the detection of human blood on the pair of shoes of the accused Ex. P4 (Ex. 8 as per FSL-report), it is argued by Ld Amicus Curiae that the same has been manipulated by the police because the seal of SKS which were given to PW14 SI Amar Singh was returned to PW15 Inspector S.K.Sharma before the pullandas of the case property including parcel-8 and parcel-9 were sent to the FSL. It is therefore argued that the human blood on the pair of the shoes Ex. P4 has been -::21::- FIR No 47/08 PS: Ashok Vihar manipulated by tampering with the case property while the same remained deposited in the Police Station malkhana. Ld Amicus Curiae therefore vehementally argued that the prosecution has miserably failed to link the accused with the offence as alleged and the accused was entitled to acquittal.
8) Ld Addl. PP for the State on the other hand argued that the prosecution has established the chain of circumstances beyond any reasonable doubt; the contradictions as pointed out are minor in nature which are liable to be ignored; there is no major discrepancy in the prosecution story and all material witnesses have fully supported the prosecution case and there is nothing in their lengthy cross-examination so as to assail their deposition. Regarding the deposition of PW3 and PW5 Ld Addl.PP for the State, vehementally argued that there is no bar to believe the public witness who happens to be relative of the deceased because their deposition is natural and trustworthy and has nowhere been assailed in the cross-examination.
9) Ld Addl. PP for the State has referred and relied case of Vinay Kumar Rai and Another Vs . State of Bihar 2008 V AD (Cr. ) (SC) 392 . In para no. 6 and 13 it was held as under :-
Para no. 6: Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of -::22::- FIR No 47/08 PS: Ashok Vihar interestedness, the same has to be established. Mere statement that being relative of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para no. 13: The over insistence on witnesses having no relation with the victims often results in criminal justice going away. When any incident happens in a dwelling house the most natural witnesses would be the inmates of that house, it is upragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnesses the events and not those who have not seen it though the neighborhood may be replete with other residents also.
10) Ld Addl. PP for the State vehementally argued that the prosecution had established its case by completing the chain of circumstantial evidence and the evidence on record has nowhere been assailed in any manner therefore, accused be convicted for -::23::- FIR No 47/08 PS: Ashok Vihar the offence of murder .
11) I have considered the rival submissions made at bar and carefully gone through the evidence on record. The case of prosecution is based on circumstantial evidence and the prosecution has claimed to have established its case by proving the following circumstances in evidence which form the chain of the circumstantial evidence:-
A) Recovery of dead body of deceased Sonu @ Deepak at about 8.15AM on 13.2.2008 near Railway under bridge, Ashok Vihar, Phase-II, Wazirpur Industrial Area, Delhi near C-14 Railway Line with its head and mouth smashed and blood was found scattered and the recovery of weapon of offence i.e one brick Ex. P1 and concrete stone Ex. P-2.
B) Going of deceased Sonu @ Deepak on 12/2/2008 at about 5.00PM with the accused from his jhuggi no. A/135, S. S. Nagar, Wazirpur Industrial Area, Delhi.
C) Presence of PW4 Dayawati at her jhuggi alongwith deceased when accused came to their jhuggi and asked the deceased to accompany him for brining bicycle from his working place.
D) In the presence of PW5 Vijay Kumar, visit -::24::- FIR No 47/08 PS: Ashok Vihar of deceased Sonu alongwith accused Arun @ Khadag Singh and one Phool Chand to his working place at Reliance Shop at Rana Pratap Bagh on 12/2/2008 at about 7.00 PM for taking his bicycle left there on previous day and the absence of the deceased on the said date of duty because of ill-health. E) Leaving of the accused and the deceased from the said Reliance shop at Rana Pratap Bagh alongwith bicycle at about 7.30 PM in haste and insistence of accused for an earlier departure from there.
F) Previous enmity between accused and deceased because of a quarrel about 8 months before this incident and infliction of blade injury by the accused to PW3 Mahipal Singh, brother of deceased who had intervened in the quarrel between them and registration of a criminal case in that regard.
G) Arrest of accused on 13/2/2008 at about
5.00 PM and his making of disclosure statement Ex. PW4/F stating that on the spot of occurrence he alongwith deceased consumed liquor and while deceased was urinating, he hit upon his head with the weapon of offence Ex. P1 and Ex. P2.
H) While causing injury to the deceased with Ex. P1 and Ex. P2, spreading of blood on the clothes and the shoes of the accused.
-::25::- FIR No 47/08
PS: Ashok Vihar I) In pursuance to the disclosure statement Ex. PW4/F recovery of blood stained pair of shoes Ex. P4 (Ex. 8 as per FSL-report Ex.PW15/B) from the roof of the jhuggi of the accused i.e A/339, S. S. Nagar, Wazirpur Industrial Area , Delhi.
J) In pursuance to the disclosure statement Ex. PW4/F, recovery of one jacket, trouser, baniyan (T-shirt) Ex. 7C, Ex. 7A and Ex. 7B (as per FSL-report Ex. PW15/B) from the roof of the jhuggi no. A/339, S. S. Nagar, Wazirpur Industrial Area, Delhi worn by him at the time of commission of offence.
K) Detection of human blood of group-B as
of deceased on Ex. 8 as per FSL-report .
L) Detection of ethyl alcohol in the blood of
the deceased as per FSL-report dated 26/6/2008 of Chemistry Division of FSL, Rohini with regard to Ex. 5 as mentioned in FSL-report Ex.PW15/B. M) Recovery of Hero Jet bicycle standing on the other side of the railway line, near railway line under bridge Ashok Vihar Phase-II, Delhi which belonged to deceased and his brother.
N) Possibility of use of Ex. P1 and Ex. P2 (weapon of offence) in causing injury due to which death occurred as per postmortem report Ex. PW7/A and opinion regarding weapon of offence Ex.PW7/E. -::26::- FIR No 47/08 PS: Ashok Vihar O) Time of death as per postmortem report Ex. PW7/A almost corresponding to the time of possible presence of deceased on the spot of occurrence and the commission of the offence after 7.30 PM on 12/2/2008.
P) The time gap when the deceased was last seen alive in the company of the accused and his death to be very small and not very large.
Q) Motive of the crime due to previous enmity and pendency of a criminal case vide FIR no. 240/07 u/s 324 IPC Ex. PW10/A.
12) What is required by the prosecution to prove its case on the basis of circumstantial evidence has been recently analysed in Bantu Vs. State of U.P, 2009 I AD (Criminal) (SC) 175. The Hon'ble Apex court was pleased to hold as under :-
10. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken -::27::- FIR No 47/08 PS: Ashok Vihar together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
11. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.(See. Hukam Singh Vs. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. Vs. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa Vs State of Karnataka (AIR 1983 SC 446); State of U.P Vs Sukhbasi and Ors, (AIR 1985 SC 1224);
Balwinder Singh Vs. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee Vs State of M.P (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
12. We may also make a reference to a decision of this court in C. Chenga Reddy and Ors Vs. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on
circumstantial evidence, the
settled law is that the
circumstances from which the
conclusion of guilt is drawn
-::28::- FIR No 47/08
PS: Ashok Vihar
should be fully proved and
such circumstances must be
conclusive in nature.
Moreover, all the
circumstances should be
complete and there should be
no gap left in the chain of
evidence. Further the proved
circumstances must be
consistent only with the
hypothesis of the guilt of the
accused and totally
inconsistent with his
innocence........"
18. A reference may be made to a later
decision in Sharad Birdhichand Sarda Vs
State of Maharasthra, (AIR 1984 SC 1622).
Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They 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
-::29::- FIR No 47/08
PS: Ashok Vihar
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
compete 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.
13) Thus in order to prove the guilt of the accused beyond
reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the accused. It is further required to prove that the chain of the circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the -::30::- FIR No 47/08 PS: Ashok Vihar accused.
14) I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubts.
15) Now, I proceed to discuss the circumstances enumerated in para. no. 11 of the judgment to find out whether the circumstances have been established by the prosecution and the chain of the circumstances has been completed or not?
16) With regard to circumstance-A, PW12 HC Raj Kumar has stated that on 13/2/2008 when he was posted at Central Police Control Room, he received an information at 8.06 AM from Mohd.Wasim on telephone that at Wazirpur Industrial Area, near Railway Line, C-14, one person was lying dead smeared with blood. He informed the local police within 1-2 minutes of receiving the information. On the basis of said information DD no.10A Ex. PW9/C was recorded in the Police Station Ashok Vihar which was assigned to SI Amar Singh who went to the spot and found the dead body lying there. In the meantime Inspector Investigation Swaran Kumar Sharma also reached on the spot and endorsed the said DD entry as rukka Ex. PW15/A on the basis of which the present case FIR was registered. The recovered dead -::31::- FIR No 47/08 PS: Ashok Vihar body was of deceased Sonu has been established by the evidence of all the material witnesses including PW4 Dayawati and PW3 Mahipal who has identified the dead body vide memo Ex. PW4/A and Ex. PW3/A respectively. The photographs Ex.PW6/15 (1 to 28) alongwith negatives and the postmortem report Ex.PW7/A has established that the head and face of the dead body was smashed and the blood was found scattered. The recovery of weapon of offence Ex.P1 (brick) and Ex. P2 (concrete stone) from the spot of the occurrence has been established by seizure memo Ex.PW14/A. The evidence on record has established the circumstance-A beyond any reasonable doubt.
17) Regarding the circumstance -B and C, the prosecution has relied upon the deposition of PW3 Mahipal and PW4 Dayawati.
PW3 Mahipal deposed in that regard as under:-
"I know the accused as he is our neighbour. On 12.02.08 in the evening at about 5:00 P.M, accused Kharak Singh, present in the Court, came to our jhuggi and took my younger brother Sonu with him on the pretext of having a round and to bring the bicycle back which Sonu had left at his duty place. My mother and other family members were also present at the jhuggi at that time. Sonu and accused left saying that he will come in the evening along with the bicycle. Sonu did not return till night and we made a search for him at 3/4 places but he was not traceable."
In his cross-examination he has deposed as under:-
"On 12/2/08 at about 5p.m I was present at my house. At that time I alongwith my mother, wife and three -::32::- FIR No 47/08 PS: Ashok Vihar children and Sonu were present in the house. ... Accused alone come to our house to call my brother Sonu. He came on foot. Accused left our house after calling my brother Sonu to acccompany him. Accused and Sonu left the house within 5 minutes. First accused left and he was followed by brother Sonu. ....Accused and Sonu became friends after the quarrel between them few months ago before the incident."
PW4 Dayawati in that regard deposed as under:-
"On 12.02.08 at about 5:00 p.m in the evening I was at my above address along with my son Mahipal and Sonu @ Deepak. The accused Kharak Singh, present in the Court, came to our home and asked Sonu to accompany him for a round about. Sonu left home along with the accused present in the Court saying that he will bring his bicycle which he had left at his place of work. Sonu did not return till late night .................."
In her cross-examination she has deposed:-
"The accused came alone to call Sonu on that date as I was sitting downside in the jhuggi. I cannot tell as to cloth of what colour he was wearing as I did not notice his dress. The accused used to visit our home frequently. The compromise between accused and Sonu was not materialised in my presence. I did not object to the meeting of Sonu with accused as and when he visited for compromise. We waited till 11:00P.M in the night and I did not even prepare food for him. I did not made any complaint to the police in the night about his not returning. Sonu has never remained absent from the house in the night on any earlier occasion."
Ld Amicus Curiae has argued that the deposition of PW3 and PW4 is not reliable because they are interested witnesses being relatives of the deceased and have deposed falsely because of -::33::- FIR No 47/08 PS: Ashok Vihar previous enmity with the accused. It is further argued that PW4 has not seen the accused coming to her house and then accompanying of the deceased with him because she has stated in her cross- examination that she was sitting down side in the jhuggi and therefore could not notice the dress of the accused and colour of clothes worn by him. It is further argued that if the deceased had left with the accused, and despite his non-return till 11.00 PM during whole night, why the accused was not approached by the family members of the deceased despite he being living in their neighbourhood especially in the circumstances when as per admission of PW4 in her cross-examination, her son Sonu deceased had never remained absent during night from the house on any earlier occasion. Admittedly, PW3 and PW4 has not made any complaint during the night about non-returning of the deceased. Ld Amicus Curiae argued that the family members of deceased did not take above steps because the deceased had never left his house with the accused and he was habitual of drinking and for that reason the family members did not care to look for him despite his non-return to house for the whole night.
18) It is further argued that even PW3 in her cross- examination stated that the accused had left their house after calling his brother Sonu to accompany him. He further deposed -::34::- FIR No 47/08 PS: Ashok Vihar that "first accused left and he was followed by brother Sonu. I did not notice the colour of dress of the accused at that time and therefore I cannot tell as to what colour cloth he was wearing". Ld Amicus Curiae therefore vehementally argued that the evidence of PW3 and PW4 is not sufficient to establish the circumstance- B and C.
19) Ld Addl. PP for the State on the other hand argued that the deposition of PW3 and PW4 is natural and trustworthy and there is nothing in their cross-examination so as to assail their deposition with regard to leaving of the deceased with the accused on the fateful day at about 5.00 PM .
20) I have carefully scrutinized the testimony of these two witnesses I do not agree with the Ld defence counsel regarding her contention that PW3 and PW4 are not reliable and trustworthy because of they being relative of the deceased. Nothing has been brought on record by the accused in support of the contention on his behalf regarding interestedness of the witnesses. Therefore, mere contention in that regard cannot be a ground to discard the evidence of PW3 and PW4 which is otherwise found to be cogent and credible. Reliance of Ld Addl.PP for the State in that regard on the case of Vinay Kumar Rai and anothers referred (Supra) is quite apposite. The prosecution has thus established the -::35::- FIR No 47/08 PS: Ashok Vihar circumstance-B and C in evidence by proving that the accused has approached the deceased at his residence on 12/2/2008 at about 5.00 PM and the deceased has left jhuggi no. A-135, Wazirpur Industrial area, Delhi in the company of the accused. The contentions of Ld Amicus Curiae in that regard are without force because a slight variance in the cross-examination and absence of the description of colour of the cloth of the accused by PW3 and PW4 does not make their deposition unreliable as they have successfully with stood the test of the cross-examination and remained consistent in their deposition regarding coming of the accused to their house and leaving of the deceased in his company at about 5.00 PM on 12/2/2008.
21) Regarding circumstance-D and E, PW5 Vijay deposed that he had seen Sonu (deceased) last time on 12.2.2008 at about 7.00p.m and accused Khadag Singh was also accompanying him and one another boy Phool Chand was also with him; Sonu had come to the company for taking his balance salary and bicycle and at that time Phool Chand was in a hurry and accused Khadag Singh was also telling Sonu for an early departure; he asked Sonu as to why he was going in a hurry and also asked him to wait and go with him but the accused Phool Chand pressurized him to leave early and to accompany them; he (deceased) then left with -::36::- FIR No 47/08 PS: Ashok Vihar them at about 7.30 p.m; he had identified the bicycle Ex. P-1 stating that Sonu was using the said bicycle since January, 2008 and the bicycle was taken by him from the shop/company on 12.2.2008.
22) In his cross examination by Ld. Defence counsel PW5 explained that he was doing service in the Reliance company since 2007 and his present salary is Rs. 3867/- per month; Sonu had also started working with him in the same company; on 12.2.2008 Sonu did not go to duty due to ill-health as was told by him at about 7.00 p.m when he came in the company; he had asked Sonu on 12.2.2008 at about 7.00 p.m when he visited his office as to where he was going; Sonu told him that he will go home but the accused and Phool Chand were saying that they will first go at some other place .
23) Ld Amicus Curiae argued that the deposition of PW5 does not establish the presence of the deceased in the company of the accused at about 7.30 p.m because no other employee of the Reliance Company or the owner of the shop had been examined to give credence to the testimony of PW5 .
24) Ld Addl. PP for the State has argued that the deposition of PW5 in that regard is natural and trustworthy and even in his cross-examination he had reiterated the same fact and there was -::37::- FIR No 47/08 PS: Ashok Vihar nothing in his cross examination to assail his testimony of seeing the deceased alive last time in the company of the accused at about 7.30 p.m on 12/2/2008.
25) On perusal of the testimony of PW5, it is found that his deposition is natural and trustworthy because he has explained presence of the accused and the deceased at Reliance shop, Rana Pratap Bagh between 7.00 p.m to 7.30 p.m and his deposition in that regard has not been assailed in the cross-examination and I find no reason to disbelieve his testimony in that regard. Non- examination of other employee or owner of the shop has no adverse effect on the testimony of PW5 who has successfully withstood the test of the cross-examination. The circumstance-D and E stands established beyond conclusively.
26) With regard to circumstance-F, the registration of FIR no.240/07 under section 324 IPC copy Ex. PW10/A, the accused even in his statement recorded on 29.8.2009 has taken the defence stating "I have been falsely implicated because of previous dispute between us and criminal case U/s 324 IPC; the criminal case pending against me was false because the fight took place between Phool Chand and me on one part, Sonu and his brother Mahipal on other side because I asked Mahipal to take Sonu who was heavily drunk and Mahipal started fighting with us but no -::38::- FIR No 47/08 PS: Ashok Vihar injury was caused by me with the blade to Mahipal. PW3 Mahipal in his cross-examination has also reiterated the incident of previous quarrel between accused and the deceased stating that accused and Sonu became friends after the quarrel between them few months ago before the incident. Earlier the quarrel took place between them and during fighting I intervened and I was inflicted blade injuries and (he) accused ran away." PW3 Mahipal in his examination-in-chief had stated that accused had quarreled with his younger brother Sonu about 8 months before this incident and at that time he intervened and accused inflicted a blade injury at his back side for which a case was registered at Police Station Ashok Vihar. He further stated that the accused pressurized him for a compromise in the said matter but my younger brother Sonu opposed the compromise and after the compromise talks there was no date of the said matter and in between this incident has occurred.
27) Ld. APP for state vehemently argued that the motive of crime has been established from the deposition of PW3 because it was the deceased who was opposing the compromise talks and for that reason the deceased was eliminated by the accused .
28) PW4 Dayawati has also stated and proved the previous quarrel and inflicting of injuries to PW3 by the accused about 8 -::39::- FIR No 47/08 PS: Ashok Vihar month before this incident. She categorically stated that the accused and his mother pressurized them to compromise the said matter which Sonu (deceased) had opposed. She further stated that accused continued to contact Sonu by visiting their house and deliberately befriended with Sonu (deceased) for doing the wrong work and murdered him. The deposition of all these witnesses and admission by the accused of the previous quarrel and pendency of the criminal matter between them has sufficiently established the circumstance- F.
29) Regarding circumstance- G to L, the disclosure statement of the accused was proved as PW14/F. Since the said statement was made during the police custody, the same is hit by Section 25 of the Evidence Act and the whole statement is not admissible in evidence. The portion of his disclosure statement where he states that he and deceased consumed liquor and the clothes and shoes worn by him were kept by him on the roof of the Jhuggi and the same can be got recovered by him is admissible in evidence against him under the provision of Section 27 of the Indian Evidence Act. The FSL Report mark- A dated 26.8.2008 has established the presence of Ethyl Alcohol in the quantity of 267.0mg/100 ml of blood of the deceased which was preserved during his postmortem on 14.2.2008. As per postmortem report -::40::- FIR No 47/08 PS: Ashok Vihar Ex. PW7/A, the time since death was about 40-41 hours. The postmortem was conducted on 14.2.2008 at 2.30 p.m. Thus, as per postmortem report the death occurred between 8.30 p.m to 9.00p.m on 12.2.2008. The deceased was last seen in the company of accused at 7.30 p.m at Roop Nagar and he left his office after taking the bicycle Ex. P-1 from there and also in the company of the accused. As per postmortem report Ex. PW7/A, the time of death was between 8.30pm to 9.00pm on 12/2/2008. Thus, the portion of his disclosure statement Ex.PW14/F i.e "Maine Jyada Sharab Sonu ko pilai jisko jyada nasha ho gaya" becomes admissible of U/s 27 of the Indian Evidence Act. Reliance can be placed on Mohmed Inayatullah, V. The State of Maharashtra, AIR 1976 SC 483, wherein it was held that the first condition necessary for bringing the section 27 of the Indian Evidence Act into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence . The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is -::41::- FIR No 47/08 PS: Ashok Vihar admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "strictly" "unmistakably" . The phrase "distinctly" relates "to the fact thereby discovered". This phrase refers to that part of information supplied by the accused which is the direct and immediate cause of the recovery.
30) In pursuance to the disclosure statement Ex. PW14/F accused has got recovered one jacket, trouser, T-shirt and a pair of shoes Ex. P1 to Ex. P4 from the roof of his jhuggi A/339 S.S Nagar Wazirpur Industrial Area, Delhi. Ld Amicus Curiae has argued that the said recovery was not admissible in evidence because it was allegedly recovered from the roof of the jhuggi which was not in exclusive possession of the accused and neither the owner of the jhuggi nor any public person from the locality was made witness to the said recovery. Ld Addl. PP for the State on the other hand argued that the said recovery of Ex. P1 to Ex. P4 was admissible u/s 27 of the Evidence Act and the police witnesses have sufficiently explained as to why the other public witnesses were not joined at the time of said recovery. Ld Addl. PP for the State vehementally argued that the deposition of official witnesses in that regard is reliable and trustworthy and there is no bar to believe the same and there was no mandatory requirement of joining public witnesses at the time of such recovery if the -::42::- FIR No 47/08 PS: Ashok Vihar deposition of police official was reliable and trustworthy.
31) PW14 SI Amar Singh has stated in his evidence that the accused made his disclosure statement Ex. PW14/F and led them to his residence and from there one jacket jeans, one T-shirt, one pant and one pair of shoes Ex. P1 to Ex. P4 were got recovered which he was wearing at the time of incident. During his cross- examination by Ms. Anju Dixit advocate Ld counsel for the accused he has stated that they did not go inside the jhuggi because the accused went to the roof of the jhuggi and got recovered clothes and shoes worn by him at the time of alleged incident; the way for going to the roof of the jhuggi was from the outside of the jhuggi; since no other owner of the jhuggi was present, no permission was sought for going to the roof of the jhuggi; the accused himself told that the said jhuggi was his residence; the IO enquired from some public persons but statement of no such person was recorded at the time of recovery of the clothes and the shoes of the accused.
32) Similarly, PW15 Inspector S. K. Sharma has supported and corroborated the version of the PW14 regarding recovery of clothes and shoes Ex. P1 to P4 at the instance of the accused from his jhuggi at A-339, S.S. Nagar, Wazirpur Industrial Area. In his cross- examination by Ld defence counsel the PW15 has stated that the -::43::- FIR No 47/08 PS: Ashok Vihar accused was taken to the spot after recovery of clothes from his jhuggi.
33) CW1 HC Banar Singh MHC(M) Police Station Ashok Vihar was summoned u/s 311 CrPC for producing the clothes and pair of shoes Ex. P1 to P4 u/s 165 of the Indian Evidence Act. The accused was asked to wear the clothes and pair of shoes . It was observed that the pair of shoes Ex. P4 was of the size of the feet of the accused as the same were easily worn by him in his feet and were found to be neither tight nor loose and were completely fit in his feet. The jacket Ex. P1 trouser Ex. P2 and T-shirt Ex. P3 were also worn by the accused and the same were found almost fit to the body and the size of the accused.
34) Regarding non-joining of public witness at the time of recovery in pursuant to disclosure statement of the accused, in criminal appeal no. 327/2002 Shashi Shekhar @ Neeraj @ Raju Vs. State, decision dt. 23/5/2007 Hon'ble High court of Delhi was pleased to hold that evidence of police witnesses cannot be discarded for the reason that no public witness was joined at the time of recoveries . The evidence of police witnesses could be relied upon if no serious infirmity is pointed out in their evidence on behalf of the accused. Just because the recovery witnesses are police official, it cannot be said that their evidence is not of an -::44::- FIR No 47/08 PS: Ashok Vihar independent character because both are government servants and there is a presumption u/s 114, illustration (e) of the Evidence Act regarding the fact that all official acts by government servants were regularly performed. It was further held if an accused wants to rebut this presumption 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 claim to have performed while discharging their official duties during the investigation of a crime. In Praveen Kumar Vs. State of Karnataka reported as (2003) 12 SCC 199 which was robbery cum murder case it was held that where the court is satisfied that the evidence of police officials can be independently relied upon then there is no prohibition in law that the same cannot be accepted without any independent corroboration.
35) In the present case I have found no serious infirmity in the deposition of PW14 and PW15 regarding recovery of clothes and shoes Ex.P1 to P4 at the instance of the accused from the roof of his jhuggi. The credence is led to their deposition by the fact that the clothes and pair of shoes were found fit and of the size of the accused when the same were worn by him in the court. There was -::45::- FIR No 47/08 PS: Ashok Vihar nothing to disbelieve that the clothes and pair of shoes Ex.P1 to Ex. P4 were of accused. In Dhananjay Chattarjee Vs. State of Bangal ,1995 AIR SCW, 510, it was held that the part of statement of accused which led to the discovery of the shirt and the pant is clearly admissible u/s 27 of the Evidence Act because that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the appellant is capable of being proved and admitted in evidence. The discovery of fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
36) Another incriminating circumstance pressed into service by prosecution is that the pair of shoes Ex. P4 (Ex. 8 as per FSL report Ex. PW15/B) recovered at the instance of the accused was found having blood stains of B-group human blood which was the blood group of the deceased. It has been proved in evidence that the accused was examined in BJRM hospital on 13/2/2008 at about 8.40 pm after his arrest and as per medical report mark-B he was not having any external injury on his body. The accused in his statement u/s 313 CrPC recorded on 4/9/2009 has also admitted the fact of his medical examination and also having no external injury at the time of his arrest. The prosecution has established -::46::- FIR No 47/08 PS: Ashok Vihar that the human blood Group-B as that of deceased was found on the pair of the shoes Ex. P4 which were recovered at the instance of the accused and also belonged to the accused. The accused has not offered any explanation as to how the blood stains of human blood Group-B were found on his shoes Ex. P4. When the said evidence was put before the accused in his statement u/s 313 CrPC recorded on 29/8/2009 he has simply replied by saying as under:-
"It is incorrect, as the pair of shoes did not belong to me and was never recovered at my instance on the alleged date, time and place from my jhuggi A-339, S.S. Nagar, Wazirpur Industrial Area, Delhi and I do not know about the report of the FSL and the police has themselves fabricated the said evidence in order to falsely implicate me.
37) In State of Maharashtra Vs. Suresh reported as JT 1999 (9) SC 513, it was held that there can be three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself . If the accused declines to tell the criminal court that his knowledge about the concealment was on account of that he would have seen somebody else concealing it or that he would have been told by another person that it was concealed there, the criminal court can presume that it was concealed by -::47::- FIR No 47/08 PS: Ashok Vihar the accused himself. This is so because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in section 27 of the Indian Evidence Act . It was further held that the false answer offered by accused when his attention was drawn to the aforesaid circumstance (incriminating circumstance) renders that circumstance capable of inculpating him . In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain .
Earlier also in Swapan Patra V. State of West Bengal , (1999) 9 SCC 242, the Supreme Court held that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain.
The above principle have been reiterated in Anthony D'Souza Vs. State of Karnataka 2003 CRI. L. J. 434, The full Bench -::48::- FIR No 47/08 PS: Ashok Vihar of Supreme Court consisting of Hon'ble R.C. Lahoti, Brijesh Kumar and H. K. Sema, JJ opined in para. 15 as under:
"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under 313 CrPC against the established facts that can be counted as providing a missing link for completing the chain."
38) Thus in the present case it has been sufficiently and conclusively established that the pair of shoes Ex. P4 belonged to the accused and the presence of human blood group-B as that of deceased on it was to be explained by the accused when he was offerred to explain the same and his reply to the said question is apparently false and therefore the said circumstance is presumed to be capable of inculpating him.
39) Regarding the circumstance-N about possibility of use of Ex. P1 and Ex. P2 the weapon of offence for committing death of the deceased, the prosecution has pressed into service the postmortem report Ex. PW7/A and an opinion of Dr. Kulbhushan Goal Ex. PW7/E. PW7 Dr. Kulbhushan Goel regarding his opinion Ex. PW7/E has stated that the possibility of use of these two objects i.e brick and cement concrete stone piece of irregular shape both having blood like stains at multiple places for causing -::49::- FIR No 47/08 PS: Ashok Vihar injuries mentioned in postmortem report Ex. PW7/A cannot be ruled out (inadvertently the brick and the stone were given P1 and P2 in the deposition of PW7 because the Ex. P1 and P2 were also given to the clothes recovered at the instance of the accused). Further, in cross-examination of PW15 by Ld counsel Ms. Anju Dixit for accused it was stated that the accused was taken to the spot after recovery of the clothes from the roof of his jhuggi; when they reached at the spot no public person was present; the brick and concrete stone was lying near the dead body; when the accused was taken at the spot, he disclosed that he had killed the deceased by giving brick and concrete stone at the time when the deceased was urinating. The photographs of the dead body Ex.PW6/15, Ex. PW6/22, Ex. PW6/23 are showing the dead body in semi naked condition and the trouser of the deceased is below the thighs. This supports the discovery of a fact as stated by accused in his disclosure statement Ex. PW14/F that he has hit the deceased while he was in the process of defecating himself (by going to latrine) . The fact that the deceased was defecating himself at the time of alleged occurrence stands established from the deposition of PW15 in his cross-examination as discussed above and also from the photographs of the dead body mentioned above. The use of weapon of offence the brick Ex. P1 and stone -::50::- FIR No 47/08 PS: Ashok Vihar Ex.P2 also conclusively stands established from the evidence of the prosecution.
40) Regarding the motive of crime, in Dhananjay Chattarjee's case referred (Supra) the Hon'ble Apex court has observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does ;not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence .
41) In the present case there is sufficient evidence on record to show that the accused had a motive to commit murder of deceased and there is no substance in the arguments advanced on behalf of accused that he had been falsely implicated. The pendency of criminal case FIR no. 240/07 u/s 324 IPC, copy of FIR Ex. PW10/A stands established from the prosecution evidence. The accused has himself admitted in his statement u/s 313 CrPC recorded on 29/8/2009 about the pendency of criminal matter between him and the deceased. In the deposition of PW3 Mahipal, PW4 Dayawati it has been sufficiently established that the accused was pressurising them for compromise in the above criminal -::51::- FIR No 47/08 PS: Ashok Vihar matter but the deceased was objecting to the same.
42) Ld Amicus Curiae has questioned the relevancy and admissibility of the deposition of PW3 and PW4 on the ground that they were relative of the deceased and are hostile and inimical to the accused and thus falsely implicated him. In that regard the Hon'ble Apex Court in Harbans Kaur vs. State of Haryana reported as 2005 (1) JCC 490 was pleased to hold that when a plea of partiality is raised regarding testimony of related witnesses , the reason has to be shown for that and it has to be established that they have reason to shield actual culprit and falsely implicate the accused.
43) Reliance can be placed upon Arjun Mahto Vs. State of Bihar , 2008 V AD (Cr.) (SC) 19. Para no. 5 and 6 are relevant and reads as under:-
Para. 5: Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to -::52::- FIR No 47/08 PS: Ashok Vihar be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
Para. 6 :In Dalip Singh and Ors. Vs. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
The testimony of these public witnesses PW3 and Pw4 and PW5 is found to be natural and coherent and they have successfully with stood the test of the cross-examination and I find no reason to disbelieve their testimony just because they are -::53::- FIR No 47/08 PS: Ashok Vihar relative of the deceased.
44) Regarding the circumstance -P , from the postmortem report Ex. PW7/A it stands established that the possible time of the death of deceased is between 8.30 pm to 9.00pm on 12/2/08.
From the prosecution evidence it stands conclusively established that the deceased was last seen alive in the company of the accused at 7.30 pm on 12/2/08. The time gap when the deceased was last seen alive in the company of the accused and his death is not very large. This circumstance also stands established conclusively from the evidence on record which leads to the conclusion that it was the accused who is the author of the crime. Reliance can be placed on Raju Vs. The State 2009 III AD (SC) 610 wherein it was held that:-
" According to him (PW7) he had seen the deceased and the accused engaged in wordy tussle around 9.00 p.m. The wife of the deceased PW-1 found his dead body at about 9.30 p.m. The time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large. Admittedly, the bone of contention between the deceased and the accused was non payment of the commission on account of which they were quarreling. The trial Court and the High Court have rightly held the appellant to be the author of the crime."
45) From the above discussion, I am of the considered opinion -::54::- FIR No 47/08 PS: Ashok Vihar that the prosecution has proved its case beyond reasonable doubt by establishing all the circumstance conclusively and by completing the chain of circumstantial evidence which is so complete and consistent only with the hypothesis of guilt of the accused and inconsistent with the hypothesis of his innocence. The circumstances conclusively established has unmistakenly linked the accused with the offence by proving that he is the author of the crime. From the evidence of the prosecution it stands established that in the night of 12/2/2008 and 13/2/2008 at Railway line, under bridge, Ashok Vihar Phase-II, Delhi the accused has committed murder of deceased Sonu @ Deepak. I therefore hold the accused guilty and convict him u/s 302 IPC. ANNOUNCED IN THE OPEN COURT ON 10/9/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE(NDPS) (WEST)DELHI -::55::- FIR No 47/08 PS: Ashok Vihar IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE( NDPS):
TIS HAZARI COURTS:(WEST) DELHI FIR no. 47/08 Police station: Ashok Vihar U/s 302 IPC State V/s Arun @ Khadag Singh ORDER ON SENTENCE 15/9/2009 Present: Ld Addl. PP for the State.
Convict with Ld Amicus Curiae Ms. Kirandeep Kaur advocate.
I have heard Ld counsel for the convict who argued that the convict was not a previous convict in any other offence; he is of young age of about 20 years and being the eldest child in the family, his parents are financially dependent upon him. It is, therefore, submitted that in these given circumstance a lenient view may be taken against accused while awarding sentence to him.
Ld Addl. PP for the State argued that the deceased was a young boy aged about 20-21 years and was also earning for his family and because of the act and deeds of the convict, a life was lost in its prime youth. Ld. Addl.PP for the State, therefore, submitted that maximum sentence be awarded to the convict.
I have considered the rival submissions made at bar and -::56::- FIR No 47/08 PS: Ashok Vihar also carefully examined the facts and circumstances of the case.
Considering the gravity of offence and the fact that a young life was lost because of the acts and deeds of the convict, the convict is sentenced to imprisonment for life and fine of Rs.20,000/-
(Rupees Twenty Thousands only) for the offence u/s 302 IPC. In default of payment of fine the convict shall undergo simple imprisonment for a period of two months.
Benefit of Section 428 CrPC is given to the accused. The period of imprisonment already suffered by him during trial be set off against the sentence of imprisonment awarded to the convict.
Copy of the judgment and order on sentence be supplied to the convict free of cost.
File be consigned to record room.
Announced in the open court on 15/9/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIAL JUDGE (NDPS) (WEST)DELHI