Delhi District Court
State vs Kamlesh on 22 March, 2024
1
IN THE COURT OF SH. BABRU BHAN,ADDITIONAL
SESIONS JUDGE-03, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
State Vs. Kamlesh
FIR No.701/2015
PS Keshav Puram
(a) Session Case No. 53442/2016
(b) Date of offence 01.10.2015
(c) Accused Kamlesh
S/o Sh. Teji Lal Thakur
R/o Village Sanan Patti, Post
Auraha, Thana- Laokahi,
District Madhubani, Bihar
(d) Offence U/s.302 IPC
(e) Plea of accused Not guilty
(f) Final Order Convicted
(g) Date of institution 20.08.2016
(h) Date when judgment 07.03.2024
was reserved
(i) Date of judgment 22.03.2024
JUDGMENT
BRIEF FACTS
1. As per the facts of the case alleged by the prosecution, in the intervening night of 01.10.2015 and 02.10.2015, Ikas Pal PW-9 was present in the store of nursery situated near Britannia Biscuit Factory, Lawrence Road, Keshav Puram, Delhi. On 02.10.2015, at about 06:00 AM, he came out for a walk and noticed that a person was lying injured near the park. He made a PCR call in this regard. BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:02:05 +0530 SC- 53442/2016 State Vs. Kamlesh Page 1 of 36 2
2. Ct. Samaya Singh PW-1 was posted at CPCR Police Headquarter on 02.10.2015. At around 06:18 AM, he received the call from a mobile no.7835864205 wherein the caller informed that an unknown person was lying unconscious near Nursery Wala Park, E Block, Lawrence Road, near Britannia Biscuit Factory. PW-1 fed the information in the PCR computer and transmitted the same to the concerned police station. PW-1 has proved the PCR form Ex.PW1/A.
3. At PS Keshav Puram, ASI Jagbir Singh PW-11 was discharging duty of Duty Officer. On receipt of the information from CPCR police Headquarter regarding the recovery of injured, he recorded DD No.9A Ex.PW11/A in this regard. The DD Ex.PW11/A was assigned to SI Sudhir PW-24 for further necessary action.
4. In pursuant to the aforesaid DD, SI Sudhir PW-24 alongwith Ct.
Manoj PW-15 went to the Nursery Park in front of Bikaner, Lawrence Road, Delhi where they learnt that the injured had already been removed to Bhagwan Mahavir Hospital by the PCR officials. SI Sudhir PW-24 also noticed that pieces of the concrete flower pots were scattered near the place of incident. He left Ct. Manoj PW-15 at that spot and went to Mahavir Hospital.
5. At Mahavir Hospital, he collected MLC No.14340 Ex.PW7/1 prepared by Dr. Anil Ranjan PW-7. After examination, the BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:02:14 +0530 SC- 53442/2016 State Vs. Kamlesh Page 2 of 36 3 attending doctor had referred the patient to SR Surgery/ eye for further management. In hospital, one Vivek PW-6 who was known to the injured met SI Sudhir PW-24 and told him about the credentials of the injured. The said Vivek revealed the name of the injured as Satish. SI Sudhir was further told that the patient had been referred to Safdarjung hospital.
6. SI Sudhir PW-24 returned to the spot and made endorsement/rukka Ex.PW24/A on DD No.9A and handed over the same to Ct. Manoj PW-15 for registration of FIR. On basis of rukka, ASI Jagbir Singh PW-11 registered the present FIR Ex.PW11/1. After registration of the FIR, ASI Jagbir Singh appended an endorsement Ex.PW11/2 on the rukka and handed over the same to Ct. Manoj for transmission of the same to the IO.
7. During further course of investigation, crime team was called at the spot. SI Sandeep PW-29 was leading the crime team. He alongwith SI Sajid Hussain and HC Sandeep PW-28 reached the spot. He inspected the crime scene. During inspection, PW-29 noticed that one plastic bag was lying on the spot. He further noticed pieces of broken flower pot having blood stains, empty quarter bottle of the liquor, two empty plastic glasses and two pairs of black and red sleepers (Chappals) were lying there. After inspection, he prepared his report Ex.PW29/A.
8. In the meanwhile, HC Sandeep PW-28 clicked 19 photographs BABRU Digitally signed by BABRU BHAN BHAN 17:02:24 Date: 2024.03.26 +0530 SC- 53442/2016 State Vs. Kamlesh Page 3 of 36 4 Ex.PW28/A (Colly) of the crime scene. He prepared the CD of the photographs and handed over the same alongwith a certificate u/s 65 B of Indian Evidence Act to the IO. The certificate and CD are Ex.PW28/B and Ex.PW28/P-1 (Colly).
9. When the aforesaid inspection was being conducted, Bajrang Nath Thakur PW-2 identified the red sleepers as of his room mate Kamlesh. He further revealed that Kamlesh and Mithlesh had come to their room on previous night at about 09:30 to 10:00 PM and left for their native place alleging some urgency.
10. SI Sudhir PW-24 seized all the aforesaid articles vide seizure memo PW15/1. He also inspected the spot and prepared a visual site plan Ex.PW24/B. It was revealed to the IO during investigation that there was some monetary dispute between Kamlesh and deceased Satish. After the incident, Kamlesh and his brother Mithlesh had gone missing.
11. On 11.10.2015, an information was given to the PS that injured had expired. This information was reduced into writing by ASI Narayan Singh PW-12 vide DD No. 12A Ex.PW12/1. IO accordingly added section 302 in the FIR.
12. On 12.10.2015, on instructions of subsequent IO/SHO, SI Sudhir went to Safdarjung hospital and prepared inquest papers Ex.PW24/C. He recorded statement of Vivek Rai PW-6 and Ranjit Rai PW-10 who identified body of deceased Satish vide Digitally signed BABRU by BABRU BHAN BHAN Date: 2024.03.26 17:02:36 +0530 SC- 53442/2016 State Vs. Kamlesh Page 4 of 36 5 identification memo Ex.PW6/A and Ex.PW10/1 respectively.
13. At request of IO, Dr. Mukesh PW-16 conducted postmortem on the body of the deceased. In his postmortem report Ex.PW16/1, he opined that cause of death of the deceased was due to cerebral damage as a result of blunt force impact to the head which was sufficient to cause death in ordinary course of nature. He further opined that all the injuries were antemortem in nature. After postmortem, body was handed over to Ranjit PW-10 vide handing over memo Ex.PW10/2.
14. On 04.11.2015, SI Sudhir joined the investigation of the case with IO/ACP KSN Subhuddhi PW-23 and SI Mahender Pratap Singh PW-14. That day, IO had received an information that accused Kamlesh had surrendered before the JJB. Since SI Mahender Pratap was juvenile officer of the PS, he prepared apprehension memo Ex.PW14/1. After apprehension, version of the Kamlesh Ex.PW14/2 was recorded.
15. In order to verify the age of accused Kamlesh, SI Sudhir went to native village of the accused and verified his age related documents from the school by moving an application Ex.PW18/2. The concerned Principal namely Jivach Prasad Sahu PW-18 provided the documents Ex.PW18/1 which was seized by the IO vide memo Ex.PW18/2. The principal provided another certificate Ex.PW18/A. During further investigation, SI Sudhir verified the attendance register Ex.PW24/B. On basis of these Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:02:44 +0530 SC- 53442/2016 State Vs. Kamlesh Page 5 of 36 6 documents, age enquiry was conducted by the Principal Magistrate, JJB-2. After perusing the record, the concerned Principal Magistrate declined to rely upon the school record and ordered medical age determination test wherein the age of the accused was opined between 25 to 40 years. He was accordingly declared major vide order dt. 25.04.2016. This court shall return back with further discussion on this issue at the later part of this judgment.
16. During further course of investigation, ACP KSN Subhuddhi PW-23 moved an application Ex.PW23/1 for obtaining subsequent opinion regarding the weapon of offence used for inflicting the injuries upon the deceased. Dr. Mukesh PW-16 examined the broken pieces of the flower pot and thereafter, opined vide his report Ex.PW16/2 that injuries found on the body of the deceased were possible to be caused with the flower pot.
17. The further investigation of the case was handed over to Insp.
Surender Singh PW-27. He moved an application Ex.PW27/A seeking permission to interrogate the accused. After getting the requisite permission from the court, he interrogated the accused and thereafter, formally arrested him vide memo Ex.PW27/B. After interrogation, IO recorded the confessional statement Ex.PW27/C of the accused.
18. On 09.12.2015, Insp. Manohar Lal PW-4 was called by IO/SHO Digitally signed BABRU by BABRU BHAN BHAN Date: 2024.03.26 17:02:50 +0530 SC- 53442/2016 State Vs. Kamlesh Page 6 of 36 7 Insp. KSN Subhuddhi PW-23. On instructions of IO, PW-4 inspected the spot and prepared scaled site plan Ex.PW4/A.
19. On completion of investigation, IO filed the chargesheet accusing accused Kamlesh for offence u/s 302 IPC.
20. Formal charge for the offence u/s.302 IPC was framed against the accused Kamlesh vide order dated 14.10.2016, to which he pleaded not guilty and claimed to be tried.
21. To prove its case, prosecution has examined 30 witnesses. Some of the witnesses examined by the prosecution has deposed about formal role played by them during process of investigation. Brief roles of most of such witnesses have already been discussed in the forgoing part of this order, therefore, for sake of brevity their detailed testimonies are not being reproduced again.
22. Brief of the testimonies of the remaining prosecution witnesses are as under :-
23. Bajrang Nath Thakur PW2 was room mate of accused Kamlesh and his brother Mithlesh at relevant point of time. He has deposed that in the night of 01.10.2016, they all had dinner and thereafter, went to sleep. Next morning, Mithlesh came to him and left on the pretext that his father was ill. At about 02:00 to 02:30 PM, police came to this witness for conducting inquiry about Kamlesh and Mithlesh. He told the police that they had BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:02:58 +0530 SC- 53442/2016 State Vs. Kamlesh Page 7 of 36 8 gone to village on the pretext that their father was not well. This witness has further stated that police took him to PS and gave beatings. He was also made to sign on some blank papers.
24. Jai Ram PW-3 has stated that he was working as a laborer at Bikano Campany. Deceased Satish and accused Kamlesh were also working with him in the said company. Accused Kamlesh had some money transaction with Satish. On one occasion, Kamlesh was demanding money from the Satish during which accused Kamlesh had threatened Satish that something wrong could happen with him, if the money was not returned. Witness has further stated that on 01.10.2015, employees of the factory had received their salaries. After receiving the salary, accused Kamlesh and deceased Satish left the factory together. One Vikas was also working in the factory, had made call to Satish but he did not pick up the call. Satish was called again wherein he told that he was at the place of his Bhabhi (sister-in-law). This witness has further deposed that in the same night, at about 10:00 PM, he went outside the factory to fetch Pan masala. There he saw Kamlesh present at his Jhuggi situated near Nursery Wala Park, Lawrence Road. He made enquiries from Kamlesh about Satish wherein he told that he had some scuffle with Satish during which he had thrown Gamla (flower pot) upon him. On next day, witness came to know that Satish had been murdered.
25. HC Hans Ram Meena PW-5 was working as MHC(M) at PS BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:03:03 +0530 SC- 53442/2016 State Vs. Kamlesh Page 8 of 36 9 Keshav Puram. He has deposed about the details of the properties deposited in the malkhana in connection with the present case.
26. Vivek PW-6 has deposed that on 02.10.2015, at around 06:00 AM, he had received a call from Gautam wherein Gautam had asked about Satish. Witness told Gautam that Satish was not with him. Gautam further informed the witness that Satish was missing since 01.10.2015. Thereafter, this witness went to Bikano Factory where Satish and Kamlesh were employed. Police was already present at the factory and they showed picture of Satish to the witness. Witness identified Satish from the picture. He was further told that Satish was in Mahavir Hospital. This witness thereafter, went to Mahavir Hospital and found Satish admitted there in injured condition. He has further deposed that there had been a quarrel earlier between Satish and Kamlesh over some money dispute. This witness had also identified dead body of Satish vide memo Ex.PW6/1.
27. Santosh PW-8 has deposed that on 01.10.2015, he was employed with Bikano Factory on Lawrence Road, Delhi. In the evening that day, all the employees had received salary. After receiving the salary, accused Kamlesh and deceased Satish went out of the factory towards park. This witness has further deposed that at about 10:00 PM, he received a telephonic call from the factory that Satish had not joined the duties that night. He tried to make telephonic contact with Satish but he could not be BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:03:11 +0530 SC- 53442/2016 State Vs. Kamlesh Page 9 of 36 10 contacted. On next day, at about 08:00 AM, this witness came to know that Satish had received some injuries. During cross- examination by the Ld. Addl. PP, witness went to admit that there had been some quarrel between Satish and Kamlesh over some money dispute before the date of incident.
28. Ct. Amit PW-13, on instructions of the concerned SHO, had received the exhibits from the Safdurjung hospital on 10.12.2015. He brought the same to PS and deposited in the malkhana. Report was thereafter handed over to the SHO.
29. Ct. Rahul PW-17 collected the pulandas from malkhana vide road certificate no.162/21/15 on 14.12.2015 and deposited the same with FSL. The acknowledgement was brought and deposited in the malkhana.
30. Jivach Prasad Sahu-PW18, retired Principal, Rajkiya Prathamik Vidyalaya, Village Sananpatti, Post Auraha, Thana Laukahi, District Madhubani, Bihar produced transfer certificate Ex. PW18/1 of accused Kamlesh Kumar Jha. He has further deposed that the aforesaid certificate was seized by the IO vide memo Ex. PW18/2, bearing his signatures at point X. He produced attested copy of another certificate Mark PW18/A.
31. Ct. Ankit PW-19 is the attesting witness of the dead body identification memos Ex.PW6/1 and Ex.PW10/1. This witness had also signed dead body handing over memo Ex.PW10/2. He Digitally signed BABRU by BABRU BHAN BHAN 17:03:19 Date: 2024.03.26 +0530 SC- 53442/2016 State Vs. Kamlesh Page 10 of 36 11 has further deposed that the blood gauze of the deceased was taken by the doctor and converted into a pulanda and sealed with seal of the hospital. IO seized the same vide seizure memo Ex.PW19/1.
32. SI Devender Kumar PW-20 has proved the certificate u/s 65 B Indian Evidence Act Ex.PW20/1 in support of the PCR form.
33. Gautam PW-21 has stated that on 01.10.2015, he was employed at Bikano Factory, Lawrence Road. There had been a quarrel between Satish and Kamlesh about 10 to 12 days prior to 01.10.2015 on the issue of Rs.300/- which had been taken by deceased Satish from accused Kamlesh. This witness has further deposed that all the employees of the factory had received their salaries on 01.10.2015. At about 06:30 to 07:00 PM, accused Kamlesh and deceased Satish went out of the factory talking to each other. Satish had night duty that day but he did not turn up for the same. Witness searched for Satish for the whole night but he could not be found. On morning of 02.10.2015, he was found in injured condition. During cross-examination by ld. Addl. PP for the State, this witness admitted that during the quarrel which had taken place 10 to 12 days prior to 01.10.2015, accused Kamlesh had threatened Satish by saying "mein apne baap ki aulad nahin agar tumhe zinda chhod diya". He further stated that on 01.10.2015, accused Kamlesh and deceased Satish were calling fowl names to each other while going out of the factory.
Digitally signed by BABRUBABRU BHAN Date:
BHAN 2024.03.26 17:03:25 +0530 SC- 53442/2016 State Vs. Kamlesh Page 11 of 36 12
34. Suresh Kumar Singla PW-22, Sr. Scientific Officer, Grade -1, CFSL, CBI, has proved FSL report of Biology division as Ex.PW22/1.
35. Pushpender Kumar PW-25 was also an employee of Bikano Factory. He has deposed almost in sync with Gautam PW-21. In addition, he has deposed that he had handed over biodata of Kamlesh, declaration form of Kamlesh, form -2 of Kamlesh, form-11, personal details of Satish, Notaries affidavit of Satish to IO. IO had seized the same vide memo Ex.PW25/A. The aforesaid documents are Ex.PW25/B to Ex.PW25/F. Photocopy of Notaries Affidavit Mark PW25/G.
36. Shishu Rai PW-26 has also deposed in sync with PW-21 and PW-25.
37. Dr. Krishan Nandan Kumar PW-30 has identified signatures of Dr. Manoj on noting Ex.PW30/A on MLC Ex.PW7/A wherein Dr. Manoj had referred the patient to higher center for USG Abdomen to rule out visceral injury or intra abdominal injury and for opthalmology and neurosurgery opinion to rule out intra clinical injury or to rule out fundus injury in eye.
38. Sh. Hardeep Singh PW-31 is the medical record technician, Sardarjung hospital who has proved the death summary Ex.PW31/B prepared by Dr. Parveen, PG surgery department.
PW-31 had also filed his authority letter Ex.PW31/1.
Digitally signedBABRU by BABRU BHAN BHAN Date: 2024.03.26 17:03:31 +0530 SC- 53442/2016 State Vs. Kamlesh Page 12 of 36 13
39. The prosecution evidence was followed by the statements of accused u/s.313 Cr.P.C. During the statement, the incriminating circumstances brought on record against the accused by the prosecution through its evidence were put to the accused. The accused, in response to the questions put to him, denied the case of prosecution, pleaded innocence and claimed false implication. He did not opt to lead any defence evidence.
40. This Court has heard the detailed final arguments from Ld. Addl.
PP for the State and Ld. Counsels appearing on behalf of the accused. Now, this Court proceeds to analyze the evidence to decide as to whether the prosecution has successfully proved the guilt of the accused beyond reasonable doubt or not.
41. However, before commencing the evaluation of evidence on merits, there is one preliminary issue which needs to be discussed first. When the accused initially surrendered before the Juvenile Justice Board, he had claimed juvenility on basis of school record produced from Rajkeeya Prathamik Vidhalaya, Village Sanan Patti, Post Auraha, Thana Laokahi, District Madhubani, Bihar, wherein his date of birth was recorded as 15.03.1998. Same school record has been produced before this Court by Jivach Prasad Sahu PW18. While deciding the claim of the accused, JJB had conducted a detailed enquiry wherein the correctness of the documents produced from the school record were analyzed in detail. During enquiry, the Principal Magistrate, JJB -2, Delhi Gate observed that the entries made in the school Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:03:36 +0530 SC- 53442/2016 State Vs. Kamlesh Page 13 of 36 14 records were not in a proper chronological order and other multiple discrepancies were also noticed therein. After discussing the discrepancies, the Juvenile Justice Board refused to rely upon the school record and ordered medical age determination test vide order dt. 09.03.2016. The said test was conducted on 22.03.2016 wherein the age of the applicant/accused was opined between 25 to 40 years. On basis of the medical age determination test, JJB declared the accused to be major on date of commission of offence, vide its order dt. 25.04.2016. That declaration has not been challenged before any court.
42. During trial, Jivach Prasad Sahu PW18 has again produced the transfer certificate Ex. PW18/1 and has identified his signatures on the same at point X. In the document Ex. PW18/1 produced by this witness, there is overwriting on the date of admission and the number of entry register. In his Court statement, PW18 has not explained the circumstances and reasons for which the overwriting on the aforesaid document Ex. PW18/1 was done.
He also did not produce any document given by the parents of accused Kamlesh Kumar as proof of his age at the time of seeking his admission in the school. The admission register Ex. PW24/D has also been perused. The register would reveal that the entries at sl. no.23 is dated 04.02.2004, whereas the entry at sl. no.25 is 02.01.2004. Again, the entry at sl. no.26 is dated 02.01.2004, but again the entry at sl.no.27 which pertains to the accused herein is dated 03.02.2004. Further, at sl. Nos.28 and 29, the entries are dated 12.01.2004 and 01.02.2004. Thus, the BABRU Digitally signed by BABRU BHAN BHAN 17:03:42 Date: 2024.03.26 +0530 SC- 53442/2016 State Vs. Kamlesh Page 14 of 36 15 entries are not in a proper chronological order. As per the record produced, the last entry is dated 07.02.2004 and the remaining portion of the register has not been produced. The order dated 09.03.2016, passed by JJB would reveal that the Principal Magistrate had sought clarification regarding the remaining portion of the register, wherein the Principal had attempted to clarify that separate register was maintained thereafter. Neither the Principal Magistrate JJB was satisfied with the clarification nor this Court is convinced because an academic year doesn't end on 07.02.2004. The discrepancies noted above are sufficient to hold that the record produced by PW18 was not being maintained properly as per Section 35 of the Indian Evidence Act.
43. It is true that documentary evidence is the best evidence and if such document is authentic and trustworthy, nothing could replace it. The bone ossification test, after all, is a scientific examination having proved margin of error attached with it. Hon'ble Apex Court of India, at several occasions, has refused to accept the bone test to determine the age of the accused or victim, when other documentary evidence are available. However, when the determination of age is made on basis of documents such as school records, it is necessary to consider the documents as per section 35 of the Indian Evidence Act. It has to be proved that an official record is properly maintained in discharge of official duty. Although, section 94 (2) of JJ Act, 2015 has kept the school record on the highest pedestal in the BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:03:50 +0530 SC- 53442/2016 State Vs. Kamlesh Page 15 of 36 16 order of preference while determining the age of a child. However, a court should not adopt a hyper technical approach in such enquiries. If it is brought on record that the school records are not maintained properly in discharge of official duties, a bone ossification test can be given preference.
44. In support of the aforesaid, reliance can be placed upon the judgment passed by Hon'ble Allahabad High Court in case titled as Monish Vs. State of U.P., 2023, Allahabad wherein the Hon'ble High Court has made following relevant observations :
"33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
33.7. This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:03:57 +0530 SC- 53442/2016 State Vs. Kamlesh Page 16 of 36 17 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
45. In this case, the JJB had passed a detailed order in order to discard the school record produced in support of the age of the accused. Same documents have been produced before this Court by PW18. This Court has perused those documents and is of the opinion that the record was not being maintained properly in the School. On the other hand, the medical age determination test has not given any border line finding. It has opined the age of the accused to be 25 to 40 years on 22.03.2016. Thus, he would remain major on the date of commission of offence under all circumstances, even by extended any margin of error on lower side. Accordingly, this court concurs with the finding of JJB that accused was major on the date of commission of offence.
46. Now, adverting towards the merits. There is no direct evidence or eye witness to support the case of the prosecution that accused Kamlesh had committed the murder of deceased Satish. The BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:04:03 +0530 SC- 53442/2016 State Vs. Kamlesh Page 17 of 36 18 entire case of the prosecution is based upon the circumstantial evidence. The prosecution has intended to prove following circumstances to prove the guilt of the accused :
i. Motive
ii. Previous conduct.
iii. Accused was last seen with the deceased.
iv. Subsequent conduct.
v. Extra judicial confession made by the accused.
Motive
47. Starting with the motive of the crime. Every offence, be it a heinous crime one or a petty violation, is committed for a reason or motive. In cases based upon direct evidence, motive does not carry much relevance. However, in the cases entirely based upon circumstantial evidence, motive becomes relatively more significant. In case titled as Suresh Chandra Bhari vs State of Bihar, it was held by Hon'ble Apex Court that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind crime is a relevant factor for which evidence can be adduced. This case in hand, as stated above, is entirely based upon the circumstantial evidence, therefore, the alleged motive for commission of crime shall be a very relevant fact to prove the guilt of the accused.
48. The alleged motive of crime in this case is that accused Kamlesh had given some money to deceased Satish but Satish was not returning the same despite repeated demands made by the BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:04:09 +0530 SC- 53442/2016 State Vs. Kamlesh Page 18 of 36 19 accused. This conduct and attitude of the deceased allegedly riled up the accused and therefore, he committed his murder.
49. To prove the alleged motive, prosecution has first produced PW-
3 Jai Ram. Jai Ram was co-worker of the deceased and the accused in Bikano Company. PW-3 has stated in his court statement that Kamlesh was demanding money from the deceased and the issue had led to some verbal altercation between them on some previous occasions. During one of such altercation, accused had threatened the deceased that some unpleasant incident could happen with him (deceased), in case he did not returned the money of the accused. During cross- examination also, this witness again repeated that verbal altercation had taken place between the accused and the deceased in his presence on two three occasions.
50. During cross-examination of this witness, Ld. Defence Counsel did not give any suggestion to the witness that there was no such money transaction between the accused and the deceased. It is also not the case of the defence that there was some ongoing animosity between the accused and PW-3. PW-3 was the co- worker of the accused and deceased and this court has no material before it to disbelieve the alleged money dispute between the accused and the deceased as stated by PW-3.
51. The monetary dispute between the accused and the deceased is further supported by Vivek PW-6. He has also stated that Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:04:15 +0530 SC- 53442/2016 State Vs. Kamlesh Page 19 of 36 20 although, no quarrel had taken place between the accused and deceased in his presence but he had knowledge that there were some ongoing dispute between the accused and the deceased. Like PW-3 and PW-6, Santosh PW-8 has also deposed in his court statement that even prior to date of incident, there had been quarrel between accused Kamlesh and deceased Satish. During cross-examination, PW-8 further elaborated that on 25/26.09.2015 also, the accused and the deceased had quarreled. This witness was subjected to some suggestions during his cross- examination denying the quarrel and dispute between the accused but this witness denied these suggestions and remained firm in his version that there had been some dispute over money between the accused and the deceased. Again, nothing was suggested to this witness about the reasons for falsely implicating the accused. This court has therefore, no reason to visit testimony of this witness with suspicion.
52. PW-21 Gautam and PW-25 Pushpender both co-workers of the accused and deceased have also deposed that there was some money dispute between the accused and the deceased and some quarrel had taken place between them on this issue a few days prior to the incident. The cross-examination of both the witnesses have also been perused. There is nothing in the cross- examination of these witnesses which can impeach their credibility. Digitally signed by BABRU BABRU Date:
BHAN BHAN 2024.03.26 17:04:22 +0530 SC- 53442/2016 State Vs. Kamlesh Page 20 of 36 21
53. The testimonies of the witnesses mentioned above are sufficient to prove that there was some money dispute between the accused and the deceased and same could be a strong reason for commission of the offence in question.
Previous conduct
54. Sometime a previous conduct is sufficient to explain a subsequent act done by a person. To see the previous conduct of the accused which can be relevant to prove the offence in question, this court shall again advert towards statement of Jai Ram PW-3. PW-3 has stated in his court statement that there had been an altercation between the accused and deceased on some previous occasions and on the date of incident also during which the accused had extended threats to the deceased. Same statement has been made by Vivek PW-6.
55. PW-8 Santosh has further gone to the extent of saying that there had been a quarrel between the accused and deceased on 25/26.09.2015 where Kamlesh had threatened the deceased. Ld. Counsel for the accused has attempted to challenge the credibility of this witness by throwing a suggestion upon him that no quarrel had taken place between the accused and deceased on 25/26.09.2015 and since no quarrel had taken place, therefore, the management of the factory had not taken any action against them. It is relevant to note that the witness has just stated that there had been a quarrel between the accused and deceased on 25/26.09.2015, he has nowhere claimed that the BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:04:30 +0530 SC- 53442/2016 State Vs. Kamlesh Page 21 of 36 22 quarrel had taken place in the factory in presence of the officials of management. Even otherwise, the factory management is neither supposed to nor expected to take action against its worker for petty altercations. Such altercations are generally ignored to avoid hindrance in work. Ld. Counsel further asked PW-8 about the reasons for not telling the police about the previous quarrels between accused and deceased when he met with them on 02.10.2015. The witness has explained in his statement that he had identified the dead body of the deceased on 02.10.2015. A person who has just identified the dead body of his co-worker is not expected to elaborate everything what had happened with the deceased in recent past. Moreover, PW-8 Santosh would not have imagined in his wildest imagination that accused Kamlesh could have committed the murder of deceased in continuity of the altercation which were taking place between him and deceased previously. Thus, mentioning of previous quarrels would not have been felt necessary by PW8 on 02.10.2015. Thus, this line of argument shall also not serve the purpose of the defence.
56. PW-21 Gautam has also deposed that a quarrel had taken place between the accused and deceased 10 to 12 days prior to 01.10.2015 wherein deceased Satish had told him that the quarrel had taken place on dispute for a sum of Rs.300/- which the accused was demanding from him. During cross- examination, Ld. Counsel for the accused has attempted to challenge the credibility of this witness by asking some questions BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:04:38 +0530 SC- 53442/2016 State Vs. Kamlesh Page 22 of 36 23 regarding the said quarrel to which the witness clarified that the quarrel had taken place in his presence. As per the case of prosecution, this witness was a co-employee of the accused and deceased at Bikano Factory. Thus, his presence alongwith the accused and the deceased during the duty hours is natural and therefore, he might had seen the accused and the deceased quarreling with each other on previous occasions. In addition to some formal suggestions, nothing has been brought on record to show any reason for which this witness could have deposed falsely about the quarrels between the accused and the deceased.
57. Speaking on the same lines as deposed by Gautam PW-21, Pushpender PW-25 who was also employee of the Bikano Factory has deposed that on the date of incident, salary was being distributed to the employees of the factory. At about 06:00 PM, accused Kamlesh came to this witness for salary. He was sent to Shishu Rai who was distributing salary. Shishu Rai paid them salary and thereafter, both accused and deceased started arguing with each other. Upon which, PW-25 asked them to leave the factory premises. Upon instructions of PW-25, they both left the factory arguing with each other. The statement of PW-25 is further supported by Shishu Rai PW-26 also who has stated that he was distributing salary to the employees. After receiving their salaries, both, accused Kamlesh and deceased Satish started arguing with each other on issue of money. This Shishu Rai PW-26 is also the employee of Bikano Factory. There is nothing in cross-examination of the above witnesses which Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:04:44 +0530 SC- 53442/2016 State Vs. Kamlesh Page 23 of 36 24 may suggest that they have deposed false facts.
58. Thus, it stands proved that accused Kamlesh and deceased Satish, both were working together in Bikano Factory Lawrence Road. There was some dispute between them on issue of a small amount of money and they would frequently quarrel upon the same. The accused had quarreled with the deceased on previous occasions. This conduct does not only show the motive for the crime but his prior conduct also, which is relevant u/s 8 of the Indian Evidence Act.
Last seen together
59. As has come on record through testimony of Santosh PW-8, PW-
21 Gautam, PW-25 Pushpender and PW-26 Shishu Rai, both accused Kamlesh and deceased Satish had visited the factory on 01.10.2015. Both of them had received salary and thereafter, left the factory at about 06:30 to 07:00 PM. PW-21 Gautam has specifically stated that on 01.10.2015 at about 06:30 to 07:00 PM, accused Kamlesh and deceased Satish had went out of the factory in company of each other. As far as credibility of these witnesses is concerned, same has already been discussed and there is nothing on record to suggest that these witnesses would have deposed false facts. All the aforesaid witnesses were working with the accused and deceased in Bikano Factory, Lawrence Road and therefore, they would have seen the accused persons going out of the factory together in natural course of their routine work. Moreover, this fact has not been disputed that BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:04:53 +0530 SC- 53442/2016 State Vs. Kamlesh Page 24 of 36 25 these witnesses were working with the accused and deceased as no such question was asked during cross-examination of these witnesses. Thus, through the testimony of aforesaid witnesses, it stands proved that deceased was last seen in the company of the accused at about 06:30 to 07:00 PM on the date of incident.
60. PW-8 Santosh has deposed that after his duty was over, he returned to his room. At about 10:00 PM, he received a call from the factory to the effect that Satish had not joined the duties. He tried to contact Satish telephonically but he could not be contacted. The perusal of cross-examination of PW-8 would reveal that he was not subjected to any questioning disputing the call allegedly received by him from the factory regarding non- reporting for the duties by deceased Satish. This fact becomes very relevant because deceased was last seen in the company of the accused on 01.10.2015 and thereafter, he went missing before 10:00 PM. Thus, it can be easily deducted from the aforesaid circumstances that the deceased was assaulted between 07:00 PM to 10:00 PM after he had left with the accused.
61. In case titled as Ram Gopal S/o Mansa Ram Vs. State of Madhya Pradesh, 2023 (SC), Hon'ble Apex Court of India has held that once the prosecution establishes last seen theory, accused is bound to give explanation of subsequent circumstances. The relevant observations are :
"It may be noted that once the theory of "last seen together" was established by the prosecution, the accused was expected to offer some explanation as Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:05:04 +0530 SC- 53442/2016 State Vs. Kamlesh Page 25 of 36 26 to when and under what circumstances he had parted the company of the deceased. It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non- furnishing of the explanation by the accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution was proved against him".
62. In case in hand, prosecution has produced Santosh PW-8, Ikas Pal PW-9, Gautam PW-21, Pushpender PW-25 and Shishu Rai PW-26. All these witnesses have stated that accused Kamlesh and deceased Satish were last seen together in the evening of 01.10.2015, at about 06:30 to 07:00 PM. They left the office together and thereafter, the deceased was never seen alive. As per the version of Santosh PW-8, he had received a telephonic call from the factory at about 10:00 PM wherein he was informed that Satish had not reported for duty. PW-8 also tried to contact Satish telephonically but his phone was not reachable. So, deceased had left in company of accused Kamlesh in the evening Digitally signed by BABRU BABRU Date:
BHAN BHAN 2024.03.26 17:05:12 +0530 SC- 53442/2016 State Vs. Kamlesh Page 26 of 36 27 of 01.10.2015, at about 06:30 to 07:00 PM. Thereafter, he was never seen alive. When PW-8 tried to contact deceased at 10:00 PM, his phone was not reachable. So, the incident which led to the death of the deceased had happened between 07:00 PM to 10:00 PM. Since the accused was last seen alongwith the deceased, he was supposed to explain that when he parted with the deceased and at what time. Since, they had left the office arguing with each other, accused was also duty bound to explain the circumstances under which he parted with the deceased. This court has perused the entire file, however, neither in the cross- examination of any witness nor in the statement u/s 313 Cr.PC, accused has put-forth any explanation in this regard. Correct that the primary duty to prove its case rests upon the prosecution and it can never be exonerated from the same but this failure on part of the accused to furnish the explanation regarding a fact which was in his exclusive knowledge, can be validly used against him as an additional link in the chain of circumstances which the prosecution has intended to prove against him.
Subsequent conduct
63. Another circumstance, the prosecution has sought to prove against the accused is that after the body of Satish was recovered in injured condition, accused absconded to evade his arrest.
Accused was working in Bikano factory with the deceased and as noted above, he had left on 01.10.2015 at about 06:30 to 07:00 PM. Thereafter, he did not return to the factory and surrendered before the JJB on 04.11.2015. Although, accused BABRU Digitally signed by BABRU BHAN BHAN 17:05:20 Date: 2024.03.26 +0530 SC- 53442/2016 State Vs. Kamlesh Page 27 of 36 28 has attempted to plead a defence through Bajrang Nath Thakur PW-2 that he had gone to his native place to see his ailing father but in that case, he could have informed the management of the factory but no such information was given. Moreover, the alleged medical condition of the father has also not been proved by producing any medical document. This court understands that a person can leave a particular place for number of reasons and it is not appropriate to draw the inference of culpability solely on this ground but when this subsequent conduct of the accused is taken into consideration collectively with other circumstances, it becomes an additional link in the chain of circumstances sought to be proved by the prosecution.
64. Accused has further attempted to establish his defence on the basis of statement given by Bajrang Nath Thakur PW-2 wherein he has stated that he, Mithlesh and accused had gone to sleep after having dinner in the night of 01.10.2015. Defence sought to be raised appears that since the accused was at his room at the relevant time, he could not have committed murder of the deceased. Perusal of the testimony of PW-2 would reveal that he has not stated any time when they had taken their dinner on 01.10.2015. It is possible that accused Kamlesh had gone to his Jhuggi after causing injuries to the deceased. Moreover, Bajrang Nath Thakur PW-2 has stated that he was room mate of accused and his brother. It is possible that he has tried to save the accused by stating that he was in his company in the night of 01.10.2015. However, there is sufficient additional material to discard the Digitally signed BABRU by BABRU BHAN BHAN Date:
2024.03.26 17:05:28 +0530 SC- 53442/2016 State Vs. Kamlesh Page 28 of 36 29 statement of Bajrang Nath Thakur on this aspect.
Extra Judicial confession
65. Jai Ram PW-3 has stated that in the night of 01.10.2015, at around 10:00 PM, he went outside the factory to take gutka.
There, he saw Kamlesh present at his Jhuggi. Witness made enquiries from Kamlesh about Satish upon which accused Kamlesh replied that he had a scuffle with Satish during which he threw a flower pot upon him. During cross-examination, Ld. Defence Counsel asked some questions to the witness regarding the particular date when the enquiries were made from him by the police. Witness first stated that the enquiries were made after 4-5 days but he immediately corrected himself and went to state that enquiries were made on the following day of incident in the morning and many persons were present at the time when such enquiries were made from him. Ld. Defence Counsel also asked this witness as to whether he had informed about the facts told to him by the accused to anyone else or made any PCR call or not. Witness stated that neither he informed anyone nor made any PCR call.
66. Firstly, it does not appear from the line of cross-examination followed by Ld. Defence Counsel that there was some enmity between PW-3 and the accused. No such suggestion or question was asked to this witness during his cross-examination. In fact, both the accused and PW-3 were working in the same factory for last about 4-5 years. Since the accused and PW-3 were BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:05:36 +0530 SC- 53442/2016 State Vs. Kamlesh Page 29 of 36 30 colleagues and working together in the factory for a long time, PW-3 would not have falsely stated about the confession made by the accused before him in the night of 01.10.2015, had the accused not made any such confession.
67. Now, coming to the discrepancies pointed out by Ld. Defence Counsel in the statement of PW-3. Taking reference of cross- examination of PW-3 and examination of SI Sudhir PW-24, Ld. Counsel has highlighted that as per PW-3, his statement was recorded by IO on the day following the incident whereas as per IO, he had recorded the statement of PW-3 on 05.10.2015. The cross-examination of PW-3 would reveal that first he had stated that enquiries were conducted from him after 4-5 days of the incident but he again stated that enquiries were made from him on the next day. This witness has stated during his cross- examination that he was illiterate and was working in the factory for 8-9 years. The incident had occurred in 2015 whereas the court statement of this witness was recorded in 2017. It appears that the witness, due to his limited education and background, got confused and could not differentiate between the initial enquiry and the recording of his statement u/s 161 Cr.PC. It appears from the statement of PW-24 that the enquiry was conducted soon after the incident was reported but statements of the witnesses were recorded on 05.10.2015. Even otherwise, such minor details regarding the exact date and time of the enquiry and recording of statement are natural to be eluded from memory of a witness with passage of time. Testimony of a Digitally signed BABRU by BABRU BHAN BHAN Date: 2024.03.26 17:05:43 +0530 SC- 53442/2016 State Vs. Kamlesh Page 30 of 36 31 witness, which otherwise appears to be untainted without any motive of false implication cannot be visited with suspicious merely on account of such minor discrepancies.
68. On the evidentiary value of an extra judicial confession, Hon'ble Apex Court of India in case titled as Subramanya vs The State Of Karnataka, 2022 (SC), Hon'ble Apex Court has held that :
"53. An extra judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
BABRU Digitally signed by BABRU BHAN BHAN 17:05:50 +0530 Date: 2024.03.26 SC- 53442/2016 State Vs. Kamlesh Page 31 of 36 32
69. So, it is no more the mandate of law that an extra judicial confession, must in all cases has to be accepted as a weak piece of evidence required to be visited with great care and caution. The extent of acceptability and evidentiary value of an extra judicial confession is always subjected to the credibility given to the witness before whom it was made by the accused. In order to accept an extra judicial confession as an admissible piece of evidence, prosecution must prove that confession was actually made by the accused, it was made voluntarily and the contents of confession were true. One of the ingredients which the prosecution is required to establish in order to make an extra judicial confession, an admissible piece of evidence always depend upon the credibility of the witness through whom it is sought to be proved. In case in hand, prosecution has intended to prove the extra judicial confession made by accused Kamlesh before Jai Ram PW-3. This Jai Ram was undisputedly working with the accused and the deceased for about 4-5 years before the incident. It is not the case of the defence that PW-3 had some enmity with the accused. Under the circumstances, this court has no reason to doubt the credibility of PW-3 and to believe that he would have made a false statement regarding the extra judicial confession to implicate the accused. Although, Ld. Defence Counsel has pointed out some minor contradictions in the statement of PW-3 but none of the contradiction pointed out by Ld. Counsel can be termed as material. Forgetting some minor details regarding the date of inquiry by the IO would not be sufficient to take away the credibility of a witness which Digitally signed BABRU by BABRU BHAN BHAN Date: 2024.03.26 17:05:55 +0530 SC- 53442/2016 State Vs. Kamlesh Page 32 of 36 33 otherwise appears to be untainted. PW-3, thus can be given sufficient credibility to believe that accused had made the alleged admission in his presence that he had inflicted injuries upon the deceased with a flower pot.
CONCLUSION
70. Thus, the prosecution has intended to prove its case through the last seen theory coupled with some other circumstances. Though, the last seen theory as propounded by the prosecution in a case based on circumstantial evidence may be a weak kind of evidence in itself and should not be considered the sole basis of conviction. However, when the last seen theory is proved and supported by other circumstances such as the time when the deceased was last seen with the accused, the previous relationship between the accused and deceased, existence of motive, subsequent conduct and the failure of accused to furnish explanation on some material facts like where he went and when parted with the deceased after seen in his company, when taken collectively, can complete the requisite chain of circumstances to return the finding of conviction.
71. In case titled as Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) SC, the Hon'ble Apex Court of India has laid down the principles which are to be followed in a case based upon circumstantial evidence. The relevant observations are :
"Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, BABRU by Digitally signed BABRU BHAN BHAN Date: 2024.03.26 17:06:00 +0530 SC- 53442/2016 State Vs. Kamlesh Page 33 of 36 34 character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh.(1) This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh(2) and Ramgopal v. Stat of Maharashtra(3).
It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"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 far 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."
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made: BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:06:08 +0530 SC- 53442/2016 State Vs. Kamlesh Page 34 of 36 35 "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
72. Here in this case, all the material prosecution witnesses were colleagues of the accused and deceased having no enmity with the accused. They all have stated that accused and deceased had some dispute over money and they would frequently quarrel over the same. On the date of incident, both accused and deceased had collected their salaries and thereafter, left together. They were still hurling abuses against each other when they left the Bikano factory at about 06:30 to 07:00 PM. Thereafter, attempts were made to contact the deceased but he was not traceable till BABRU Digitally signed by BABRU BHAN BHAN Date: 2024.03.26 17:06:14 +0530 SC- 53442/2016 State Vs. Kamlesh Page 35 of 36 36 10:00 PM. Accused absconded without intimating the factory about the reason for going to Bihar. Although, he has claimed that he had gone to see his ailing father but no evidence has been produced to show that he had actually gone to Bihar due to illness of his father. Jai Ram PW-3 has deposed that he had seen accused at about 10:00 PM on 01.10.2015 wherein he admitted that he had assaulted Satish. It is not the case of the defence that accused had some enmity with Jai Ram PW-3 for which he could have falsely implicated him. Thus, this court has no reason to disbelieve PW-3 before whom the accused has confessed his involvement in the present case. The accused could have explained the circumstances and the time when he parted with the deceased but no such explanation has been furnished by him at any stage of trial. All these circumstances, when collectively taken into consideration, they conclusively indicate towards one inference that accused Kamlesh assaulted the deceased with a flower pot. The blow was so forceful that it resulted into severe injuries on head, which have been opined to be sufficient to cause death in ordinary course of nature vide the postmortem report Ex.PW16/1. The circumstances proved by the prosecution have been fully established and the inference of the guilt of the accused can be unerringly drawn from the same. Accused Kamlesh is accordingly convicted for offence u/s 302 IPC.
73. Copy of the judgment be given free of cost to the convict.
BABRU Digitally signed by
BABRU BHAN
BHAN Date: 2024.03.26
17:06:23 +0530
Announced in open (BABRU BHAN)
Court on 22.03.2024 ADDL.SESSIONS JUDGE - 03
NORTH-WEST, ROHINI COURTS,
DELHI/22.03.2024
SC- 53442/2016 State Vs. Kamlesh Page 36 of 36