Delhi District Court
State vs 1. Surender S/O Johra Singh on 14 December, 2010
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IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI
S.C No. 125/2010
State Vs 1. Surender S/o Johra Singh
R/o Village Mohalla Banki
Bankipur P.S Hansganj
District Unao, U.P.
2. Sarju Paswan
S/o Sh. Kishan Dutt
R/o ....... do ........
3. Arjun Tiwari @ Tulu
S/o Sh. Girjashankar Tiwari
Village Maheshpur P.S Ajgan
District Unao, U.P.
4. Lakhan @ Lakha
S/o Sh. Ram Swaroop
R/o Kathuria P.S Makhi
District Unao, U.P.
(Proclaimed Offender)
FIR No. 73/2003
Police Station Alipur
Under Sections 302/392/34 IPC
State Vs. Surinder etc
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Date of Institution 10/06/2003
Date when arguments 10/12/2010
were heard
Date of Judgment 14/12/2010
JUDGMENT
The SHO of P.S: Alipur has challaned the accused persons to face trial for the offences U/s 302/392/34 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C. BRIEF FACTS OF THE CASE The prosecution case is that on 09.03.2003 on receipt of DD No. 7A, SI Rakesh Kumar along with HC Sri Niwas went to the spot at Khasra no. 101/19, near Gujrat Paper Mill where complainant Jagdish met them and gave statement that he was working as gardener for the last four months in Gujrat Paper Mill, Khasra 101/1922, Alipur, Delhi. In the factory, all the employees except Chowkidar had left at 7.30 p.m. At about 9.00 p.m, Manoj son of Vishwa Nath was knocking the door and on hearing the noise he also came there but the door could not be opened State Vs. Surinder etc 3 so he made a telephone call. The owner came and gave a duplicate key and got the door opened. Then he, Manoj and owner Sanjay Aggarwal saw Vishwa Nath was lying dead on his bed. The blood had come out of his nose and was present on his clothes and neck. There were injury marks. Then he and Manoj took out Vishwa Nath along with the bed and the owner Sanjay Aggarwal made a phone call to the police. On this statement of complainant, endorsement was made by SI Rakesh Dadwal and the rukka was sent through HC Sri Niwas to the Police Station for registration of the FIR. The crime team, dog squad and photographer were called at the spot. Further investigation was conducted by Additional SHO Partap Singh.
Inspector Partap Singh on reaching the crime team examined the spot and got it examined through dog squad. The photographs of the spot were taken by private and government photographers. Death report was prepared. The dead body was given into custody of Constable Mahender for the purpose of postmortem at BJRM hospital. The exhibits were lifted from the spot and case property was deposited in the police station. The dead body of the victim after postmortem was handed over to the legal heirs of the deceased on 10.03.2003. On 14.03.2003, accused Arjun Tiwari @ Tullu was arrested and on interrogation he informed the police that he along with co accused person consumed liquor and ate meat. They came to know that State Vs. Surinder etc 4 guard Vishwa Nath had received salary, so they wanted to rob him and went to him. Accused Surender pressed the mouth of the victim Vishwa Nath and he (Surender) caught hold of both hands of victim Vishwa Nath and accused Sarju gave axe blow on his chest. Accused Surender put the iron pipe on the neck of Vishwa Nath and he and Lakhan pressed the pipe and pressed it till Vishwa Nath became unconscious. After murder of Vishwa Nath, they took out Rs 3600/ from the pocket of Vishwa Nath and by taking axe and iron pipe, they left the spot. They distributed the looted amount amongst themselves.
During investigation, a sum of Rs 500/ was recovered from accused Arjun Tiwari. At the pointing out of accused Surender and Sarju the iron pipe and axe were recovered after disclosure statement of accused persons were recorded. The fourth accused Lakhan could not be arrested and was declared proclaimed offender after proceedings under Section 82/83 Cr.P.C. The statement of witnesses under Section 161 Cr.P.C were recorded and on completion of investigation, the accused persons were challaned, as referred before.
CHARGE AND PLEA OF ACCUSED: The prima facie case for the offence under Sections 302 read with 34 IPC was found to be made out against all the accused persons, so they were charged accordingly on 26.09.2003 to which they State Vs. Surinder etc 5 pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case the prosecution has examined 18 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
PW1 is Dr. B.N. Acharya, CMO, BJRM hospital who conducted the postmortem on the dead body of Vishwanath Singh S/o Bhola Nath Singh aged 55 years. He stated that the deceased died on 08.09.2003 at night with the history of strangulation and gave following observations: "General Description: Body was wearing dhoti, sweater, full sleeves warmer, banian, two socks and underwear. One chaddar/gomcha was blood stained was lying on the body. Body was normal built. Rigor mortis present in lower limb. Postmortem staining was on back. Eyes were closed. Conjunctivas were sub conjuntiveal hemorrhage. Cornea hazy. Mouth close, tongue in between teeth, nails blue. Any discharge from natural orifices semen discharge was present and bleeding from nose.
External Injuries : Ligature mark present on both side of neck in State Vs. Surinder etc 6 front side, having breadth of 9 cm which is 3 cm. Below angle of mandible on right side and 2 cm. Below the left angle of mandible. The mark is faint and all round the neck. Multiple abrasion on front and middle of neck totaling 10 in number. Three present on neck and seven on left side of chest size 3 cm to 1 cm. It is below clavicle 12 cm x 5 cm. Area abrasion on tip of nose. On dissection of chest wall bruising which clot are present both front of chest.
Internal Examination: Scalp tissues normal, skull bone intact, brain matter shows patsy sub arachnoid hemorrhage, base of skull intact, hylid bone of neck intact, clotted blood surrounding the hylid bone, thyroid cartilage was intact, tracheal rings lacerated, bruising of muscle of the neck which lot seen on both side, tracheal mucosablood. Bony case of Ches 2nd to 3rd rib on left side, 2nd to 4th rib on right side fractured. Lungs were congested. Heart was normal. Abdomen and pelvis: liver, spleen, kidney, pancreas were congested. Stomach was containing black grayish coloured fluid. Urinary bladder half, rectum empty. Opinion: All the injuries were antemortem in nature and injury No.1 was caused by ligature cloth possible present on neck and other injuries were caused by blunt object. Death was due to asphyxia consequent to ligature strangulation. Pressure over neck structure was sufficient to cause death in ordinary course of nature. Time since death was about 40 hours back.
State Vs. Surinder etc 7 This witness has proved his detailed report as Ex PW 1/A and further stated that the clothes of the deceased along with the piece of cloth and blood sample in gauze piece were preserved in sealed cover and were handed over to the constable. On 23.05.2003, he received three sealed packet sealed with the seal of P.S. Seals were intact. One opening one packet mark 1, it contains one axe with bamboo handle, length including the iron part was 40 cm, length of the axe was 13 cm. Breadth was 6.5 cm. In front and back side 4 cm. One end is sharp and the other end is square shaped. Brownish stain mark is seen on square surface. Packet mark 2 was containing one iron pipe of circumference 8 c.m and length is 80 c.m. No visible stain mark is seen on pipe. This witness gave his opinion which is as under: Opinion: Injuries mentioned in P.M report Sl. Nos. 2 and 3 could have been caused by blunt end of the axe or rod or any other similar type blunt.
It is further stated by PW1 that the above said two packets were resealed with the seal of MS BJRM Hospital and handed over to the police. He proved his detailed report in this regard as Ex PW 1/B. PW2 is Sanjay who is running a photo studio under the name of Sanjay Photo Studio. On 09.03.2003, he was called by ASI State Vs. Surinder etc 8 Rakesh Dadwal. He went to Thekewali gali, gatta factory near Dharam Kanta, Alipur where he took three photographs of dead body on the instructions of the SI. Three photographs of dead body, room and blood lying on the floor were taken by him. He proved the negatives as Ex PW 2/A1 to 3 and the positives as Ex PW 2/B1 to B3.
PW3 is Head Constable Tej Pal. He stated that on 09.03.2003, he was posted as MHC(M) at P.S Alipur when Inspector Partap Singh in case FIR NO. 73/2003 handed over to him three sealed pullandas sealed with the seal of PS and one cot which he deposited vide entry no. 1121. Thereafter, on 10.03.2003, three pulandas along with one sample seal were handed over to him by Inspector Partap Singh to be deposited in the malkhana sealed with the seal of MS BJRM and the same were deposited in the malkhana vide entry no. 1123. Again on 14.03.2003, Inspector Partap Singh deposited one pulanda sealed with the seal of PS and five notes of denomination of Rs 100/ each which he deposited vide entry no. 1128. On 20.03.2003, Inspector Partap Singh deposited two pulandas sealed with the seal of PS which he deposited vide entry No. 1133. Along with the pulandas, seizure memos were also deposited.
This witness further stated that on 26.05.2003, nine pulandas along with sample seal were sent to FSL Malviya Nagar State Vs. Surinder etc 9 through Constable Raj Pal vide RC No. 56/21/2003. FSL result was received on 14.05.2004 along with the pulandas. Thereafter on 17.05.2003, the axe and iron pipe were sent to BJRM hospital for taking opinion of the doctor and the same was received on 23.05.2003 and were taken by SI Mithlesh Mishra. It was sealed with the seal of Superintendent BJRM. Till the time, the pulandas remained with the malkhana, the same remained intact. The photocopy of original register No. 9 is proved as Ex PW 3/A. PW4 is Constable Rajpal who deposed that on 26.05.2003, he was posted at P.S Alipur and obtained the exhibits of this case from MHC(M) and deposited the same in the office of FSL, Malviya Nagar in intact condition.
PW5 is Brij Kishore. He stated that he is permanent resident of Bihar and was working as a Armature at a factory at Hyderpur. His father was working at a factory at Alipur as Chowkidar who was residing in a room at factory itself. On 9th March, last year he (PW5) received an information to reach P.S Alipur. He reached P.S Alipur and was asked to bring the dead body of his father from BJRM hospital at Jahangirpuri. Accordingly, he received the dead body and after cremating the same went to Bihar. His father had met him one week State Vs. Surinder etc 10 before 9th March when he had come to meet him. It was the last time when his father met him. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but he denied the suggestions put on behalf of State to him and was confronted with the statement Ex PW 5/A. PW6 is Sanjay Aggarwal who was running a factory under the name and style of Gujarat Paper converting Industries at Alipur. He stated that Vishwa Nath was working as a Chowkidar in the factory who was provided a room in the factory itself for residence. On 08.03.2003, in the evening, he distributed the wages to the labourers and has paid a sum of Rs 3,300/ to Vishwa Nath Singh. At about 7.30 p.m, except Vishwanath all other left the factory.
Thereafter, on 09.03.2003 at about 9.15 a.m, he received a telephone call from Jagdish who was working as gardener (Mali) in the factory and told him that despite knocking the door of the room of Vishwa Nath Singh repeatedly, the door was not being opened from inside by Vishwa Nath Singh. The son of Vishwanath, Manoj, had also reached the factory at that time. He (PW6) also reached the factory with duplicate keys and knocked the door of the factory but there was no response. He handed over the keys to either Jagdish or Manoj and asked him to jump over and open the door from inside. Thereafter, he along State Vs. Surinder etc 11 with Jagdish and Manoj reached the room of Vishwa Nath Singh but things were not visible clearly in the room. They could only see that Vishwa Nath Singh is lying on a cot motionless. They all brought Vishwa Nath Singh along with the cot outside the room and saw that Vishwanath was bleeding from the nose and there was a mark on the throat and a cloth was placed on the throat. From the mark, it seems that somebody had pressed the cloth. He gave a ring to PCR at number 100.
PW7 is Manoj who stated that on 09.03.2003 at about 9 a.m he had gone to see his father at Alipur where he was working in a factory as Chowkidar and used to sleep in the factory itself at night. He knocked at the door but the same was not opened. Jagdish Malik came there and he gave a ring to the owner of the factory, who also came there. He does not know what happened thereafter. He had not gone upto the room of his father. The owner of the factory called him and he (PW7) came to know that his father had died after the door was got opened. His father was lying on a cot. He had seen that a blanket was lying placed on his father. After putting leading questions to the witness by Ld Additional Public Prosecutor, he stated that he did not know how his father was killed. He had not noticed any mark of injury below the neck of his father or any cloth wrapped around the neck of his father. The police came at the spot and took photographs. He identified the dead body of State Vs. Surinder etc 12 his father at the hospital.
PW8 is Sh Jagdish Verma who was working as Gardner (Mali) at Gujrat Paper factory. He stated that Vishwanath was also working as Chowkidar at that factory. On 09.03.2003, Manoj S/o Vishwanath at about 9.00 a.m was knocking at the door of the factory. He went there and found that many persons had already gathered there. Though, Manoj continued to knock at the gate but no response came from inside the factory and the gate was not opened by anybody. Manoj then alighted the wall and reached inside and saw Vishwanath lying dead. Manoj came outside and informed that his father has died. He (PW8) gave a telephone call to Sanjay, owner of the factory at his house, who reached the factory after about half an hour. Sanjay brought a duplicate key and the gate of the factory was got opened from that key. They went inside and saw that Vishwanath was lying there inside a room on a cot. Telephone was made to police. Police reached the spot and made inquires from persons present there as well as in the neighbours. Police did not record his statement however asked him to call all the labour working in the factory. After noting down their names, police freed them at 9.00 p.m PW8 further stated that on the third day thereafter, police took him from the factory to the police station, obtained his signatures State Vs. Surinder etc 13 on three papers and noted down his address and thereafter asked him to leave. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but he denied the suggestions put on behalf of State to him.
PW9 is Head Constable Sri Niwas. He deposed that on 09.03.2003, he was posted at P.S Alipur. On receipt of PCR call, he along with SI Rakesh and constable Mahender reached Thekewali gali, Raj Dharam Kanta, Gujrati Paper Factory. They entered the factory and found a dead body lying outside a room in the factory on a cot. It transpired later on that the dead body is of Vishwanath who was a Chowkidar at factory. At the spot, Manoj, son of the deceased, Jagdish, Gardner (Mali) and Sanjay Aggarwal, owner of the factory were found present. SI Rakesh handed over to him a rukka for getting the FIR registered at the police station. After the FIR was got lodged by him, he came back with the original rukka and copy of FIR at the factory.
PW10 is Head Constable Chunni Lal who deposed that on 09.03.2003 at 11.15 a.m, he received a call to reach Alipur as murder had taken place there. He along with the crime team reached at Khasra No. 10, 1922, Thekewali Gali, Gujrat Paper Factory within the premises of the factory, a room was built and outside the room dead body was found State Vs. Surinder etc 14 on a cot. He took photographs of the cot from different angles. He proved the photographs as Ex PW 10/A1 to A8 and the negatives as Ex PW 10/B1 to B8.
PW11 is SI Ram Saran. He stated that on 23.05.2003, he was posted at P.S Alipur and Inspector Partap Singh sent him to BJRM hospital for getting the opinion from the doctor in this case with regard to axe and iron pipe. He reached the hospital and sought the opinion of the doctor Sh. B.L. Acharya. The axe and iron pipe were sealed with the seal of Med. Supdt. BJRM hospital, J.Puri Delhi. Thereafter, he deposited the pullandas with the MHC(M) and handed over the opinion to Inspector Partap Singh. Till the time, the pullandas remained with him the same remained intact.
PW12 is Constable Mahender Singh. He stated that on 09.03.2003 he was posted at P.S Alipur. At about 10.30 a.m, he received PCR call. Thereafter, he along with SI Rakesh Kumar and HC Sri Niwas reached Thekewali Gali in front of Raj Dharam Kanta, Khasra no 101, Gujrat Paper Mill, where Manoj and Sanjay Aggarwal met them. A dead body was there on a cot and blood had already oozed out from the nose of dead body. SI Rakesh called the crime team for taking photographs and HC Sri Niwas took rukka to the police station. Thereafter, HC Sri State Vs. Surinder etc 15 Niwas reached back at the spot after getting the FIR registered. SI Rakesh made an application and handed over the same to him. He took the dead body to mortuary of BJRM hospital in Mobile28. Postmortem was conducted on the dead body on the next date. After postmortem the dead body was handed over to Brij Kishore and doctor handed over to him three pullandas sealed with the seal of doctor which he handed over to Inspector Partap Singh, who took the same into possession vide memo Ex PW 12/A .
PW13 is Constable Ram Phal. He stated that on 16.03.2003, he again stated that on 14.03.2003, he along with SI Rakesh Kumar and Inspector Partap Singh were on patrolling in search of the accused. A person gave information that one of the accused involved in the murder of Vishwa Nath is present at Nursery Seed Farm, Alipur Road. SI Rakesh and Inspector Partap tried to join 4/5 persons in the investigation but all of them refused.
Thereafter, at 5.30 p.m, they reached Nursery Seed Farm, where Arjun Singh @ Kallo was found present, who tried to run away on seeing the police party but was apprehended. On inquiries, he disclosed his name as Arjun Singh. The disclosure statement of accused was recorded. He disclosed that he can get recovered a sum of Rs 500/ which had come to his share from a room in the farmhouse of one Som Arora State Vs. Surinder etc 16 where he used to reside and that he can also identify the place of incident. Pointing out memo and recovery memo were prepared. Accused Arjun Singh got recovered Rs 500/ from an 'Ala' which were taken into possession vide memo Ex PW 13/A. The pointing out memo of the spot is proved as Ex PW 13/B and the relevant portion of disclosure statement is proved as Ex PW 13/C. This witness further stated that no other investigation was carried out in his presence nor anything else was recovered in his presence. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but he denied some of the suggestions put on behalf of State to him. However, he admitted that the disclosure statements of accused Surinder and Sanju were recorded on 20.03.2003 and he took both the accused persons to BJRM hospital for medical examination, who identified the place of incident. From a room near garhi nala Surinder got recovered an iron pipe and accused Sarju got recovered an axe. Both the articles were taken into possession and were sealed with the seal of BS and memo Ex PW 13/G is prepared in this regard. This witness has also identified the axe as EX P1 and iron pipe as Ex P2.
PW14 is SI Mithlesh Mishra. He stated that on 17.05.2003, he was posted at P.S Alipur as SI and vide RC No. 48/21, he collected State Vs. Surinder etc 17 two pullandas containing an axe and a pipe from the malkhana moharar and took the same for opinion of the doctor at Mortuary at BJRM hospital. He handed over the same to the doctor who signed the RC in token of receipt of the same and deposited back the copy of RC with the MHC(M) on his return. This witness further stated that till the time the pullandas remained with him, they remained intact and were not tampered with.
PW15 is SI Rakesh Kumar Dadwal. He stated that on 09.03.2003, he was posted as SI in PS Alipur and at about 10.30 a.m, he was present in the P.S on emergency duty. The duty officer of the P.S gave him a call vide DD No.7A with regard to a dead person who was lying near Gujrat Paper Mill, Alipur. On this information, he along with constable Mohinder, HC Sri Niwas went there, where the factory owner Sanjay Aggarwal along with Manoj Kumar and Jagdish Verma met them outside the factory. They took them inside the factory. There was a room inside the factory on its right. One dead person was found lying over a cot outside that room. On inquiry, he came to know the name of the deceased as Vishwanath, watchman in the said factory. Manoj Kumar was the son of deceased Vishwanath and Jagdish Verma was the gardener in the factory. Thereafter, he inspected the dead body of Vishwanath and noticed that there was bleeding from the nose and there State Vs. Surinder etc 18 were ligature mark over the neck. One white cloth with blood stains was found wrapped around the neck of the deceased. One card board was lying inside the room and he found that blood was lying over it. A quilt was found lying over the body and it had also blood stains. On further inspection of the body, he noticed injury marks over its chest. A private photographer namely Sanjay Verma was called at the spot to take the photographs of the body of the deceased and the scene of the crime. He took three photographs from different angles. Crime team, dog squad and official photographer were also summoned at the scene of crime. Senior police officers were also informed about the incident and they including SHO, Additional SHO, ACP etc visited the site. He recorded the statement of Jagdish Verma which is proved by him as Ex PW 15/A. He made his endorsement on the statement of Jagdish Verma and proved the same as Ex PW 15/B. Thereafter, he handed over the rukka to HC Sri Niwas to take the same to the police station to get the case registered. Then, the investigation of the case was assigned to Additional SHO Inspector Partap Singh.
This witness further stated that Inspector completed the inquest form/papers etc and handed over the dead body of Vishwanath to Constable Mohinder Singh to take the same to mortuary of BJRM hospital. IO prepared rough site plan at the instance of Jagdish Verma. Thereafter, IO took into possession one piece of card board where the State Vs. Surinder etc 19 blood stains were found, earth control (cardboard) and one quilt on which blood stains were also found were kept in a polythene and sealed in a white cloth pullanda and sealed with the seal of PS. All the articles were seized vide seizure memo Ex PW 15/C. Seal after use was handed over to him. The cot on which the dead body of Vishwanath was found lying was also taken into possession vide seizure memo Ex PW 15/D. Thereafter, they came back to the police station where his statement was recorded by the IO. After depositing the case property with MHC(M), he handed over the seal to the IO.
This witness further deposed that on 14.03.2003, he along with IO Inspector Partap Singh and Constable Ramphal went for further investigation of the present case i.e for the search of accused persons. At about 5.15 p.m they were present at main Highway Alipur, near Alipur village, a secret information was received by the IO that Arjun Tiwari who was wanted in the present case was sitting on the wall of Govt. Nursery, Seed Farm, Alipur. On this information, IO asked 3/ 4 passers by to join the raiding party after briefing the facts to them but none was ready to join the investigation. Thereafter, a raiding party was formed by the IO comprising himself, Constable Ramphal and the secret informer. They reached at about 5.30 pm near the above mentioned place where the secret informer pointed out towards one boy who was sitting under a tree near the boundary wall of Govt. Nursury Seed Farm, Alipur.
State Vs. Surinder etc 20 Inspector Partap Singh called that boy by the name of Arjun Tiwari, on hearing his name by the police official that boy tried to run away from there but he was apprehended by them. IO inquired from that boy who disclosed his name as Arjun Tiwari and told that he was residing in a room on an open field just opposite Gujrat Paper Mill, Alipur. After deep inquiry conducted by the IO from that boy he was arrested vide arrest memo Ex PW 15/E and his personal search was conducted vide memo Ex PW 15/F in which Rs 50/ was recovered. The disclosure statement of accused Arjun Tiwari was recorded in his presence which is proved as Ex PW 13/C. This witness has correctly identified the accused in the court. The accused Arjun Tiwari in his disclosure statement had disclosed that Rs 3,000/ were found lying on the cot of deceased Vishwanath which were removed by his associate Surender and they had distributed amongst themselves. The accused also stated that he can get recovered his share of amount of Rs 500/ from his room and pointed out the place of incident. The pointing out memo is proved as Ex PW 15/G. Accused Arjun Tiwari led them to his room and produced five notes of Rs 100/ denomination from alla constructed in the wall of the west side of the room. The notes were kept in a pullanda and were taken into possession vide memo Ex PW 12/A. Thereafter, they took the accused Arjun Tiwari to BJRM hospital for his medical examination and came back to the police station. His statement was recorded by the IO in police State Vs. Surinder etc 21 station.
PW15 further stated that on 20.03.2003, he along with IO and constable Ramphal went to Tis Hazari Court for the investigation of the present case. In the court of Smt. Raj Rani Mitra, Metropolitan Magistrate, Tis Hazari, Delhi, two other accused Surender and Sarju had surrendered before the court. After taking permission from the court, IO interrogated both the accused persons and arrested them vide their arrest memos Ex PW 15/H and Ex PW 15/I respectively. Their personal search was also conducted vide memos Ex PW 15/J and Ex PW 15/K respectively. The disclosure statements of both the accused persons were also recorded by the IO in the court premises, which he proved as Ex PW 15/L and Ex PW 15/M respectively. Thereafter, the accused persons Surender and Sarju took them to the fields near Gari nalah, Alipur where there was room. The accused persons took them in the roof of the said room. Accused Surender got recovered one iron pipe and accused Sarju got recovered one axe from the roof of the same room. Both the recovered iron pipe and axe were kept in separate parcels and IO sealed them with the seal of PS and the seal was handed over to him. Both the parcels were taken into police possession vide memo Ex PW 13/B. Thereafter, they returned back to the PS along with accused persons and the parcels of the recovered articles. IO deposited the sealed parcels in the malkhana of PS and recorded his (PW15) statement. After the case State Vs. Surinder etc 22 property was deposited in the malkhana, he returned back the seal to the IO. Thereafter, he did not participate in further investigation of the case and was transferred from the P.S. This witness has also identified axe as Ex P1 which was got recovered by accused Sarju, iron pipe as Ex P2 which was got recovered by accused Surender and the cot as Ex P3 which is also shown in the photographs on record.
PW16 is Inspector Pratap Singh. He stated that on 09.03.2003, he was posted at P.S Alipur as Additional SHO. On that day, on receiving information that one dead person was lying near Gujarat Paper Mill, Alipur, he along with SHO went to the spot where they met SI Rakesh Dadwal, HC Sri Niwas, Constable Mahender and public persons i.e Manoj Kumar, Jagdish and Sanjay Aggarwal. He corroborated with the statement of PW15 regarding injuries on the dead body, inspection of spot and recording statement of Jagdish Verma. This witness has further stated that he conducted the investigation and completed the inquest form papers etc and proved the same as Ex PW 16/A1 to Ex PW 16/A4 respectively. Thereafter, he prepared rough site plan which is proved by him as Ex PW 16/B and sent the dead body vide application which is proved as Ex PW 16/C for preserving the same at the mortuary of the BJRM hospital through Constable Mahender. He further corroborated with the statement of PW15 regarding seizure State Vs. Surinder etc 23 memos Ex PW 15/C and Ex PW 15/D respectively.
This witness further deposed that the crime team report was also taken on record which is proved by him as Ex PW 16/D. He deposited the case property with the MHC(M). Thereafter, on the next day i.e 10.03.2003, he went to the hospital and moved an application which is proved as Ex PW 16/E1 and Ex PW 16/E2 with brief facts and request for conducting the postmortem of the dead body. The postmortem of the dead body was conducted and after postmortem, the dead body was handed over to the relatives of the deceased vide memo which is proved as Ex PW 16/F. Constable Mahender Singh handed over to him the clothes of the deceased in a sealed pullanda with the seal of BJRM hospital. He also handed over the ligature material in a sealed pullanda with the seal of BJRM Hospital and one envelope duly sealed having blood sample and sample seal of BJRM hospital. All these were seized vide seizure memo which is proved as Ex PW 12/A. This witness again corroborated with the statement of PW15 regarding the arrest, personal search and disclosure of accused Arjun Tiwari.
PW16 further stated that he had seized the clothes of accused Arjun Tiwari and seized the same vide seizure memo Ex PW 16/G dated 14.03.2003. The clothes were taken in pullanda and sealed with the seal of PS. Thereafter, on 20.03.2003 accused Surender and Sarju surrendered in Tis Hazari Courts. He again corroborated with the State Vs. Surinder etc 24 statement of PW15 regarding the arrest, personal searches and disclosure statements of accused persons Surender and Sarju and proved the application for interrogation of both the accused persons as Ex PW 16/H. The application with regard to PC (police custody) remand of accused persons Surender and Sarju is also proved by him as Ex PW 16/I. The witness also corroborated with the statement of PW15 regarding medical examination of accused, recovery of iron pipe and axe and the place of occurrence. The pointing out memos are proved by him as Ex PW 16/J1 and Ex PW 16/J2 respectively. He further stated that he came back to the P.S along with the other staff and deposited the case property to the MHC(M) and also recorded the statement of witnesses. Thereafter, SI Ram Sharan prepared an application for obtaining subsequent opinion regarding weapon of offence i.e iron pipe and axe and the doctor gave opinion Ex PW 1/B. He recorded the statement of the witnesses. On 26.05.2003, the exhibits were sent to FSL through Constable Raj Pal by RC No. 56/21. He recorded the statement of witnesses. Charge sheet was prepared and signed by the then SHO. This witness has also identified axe Ex P1, iron pipe Ex P2, cot (charpai) Ex P3, quilt Ex P4, paper/cardboard/gatte ka tukda Ex P5, five notes of 100 denomination each and one slip of particulars of present case Ex P6 (1 to 5) and six clothes of deceased Vishwa Nath Ex P7 (1 to 6). The details of the clothes are mentioned in the seizure memo Ex PW State Vs. Surinder etc 25 12/A. PW16 has also identified one full sleeved shirt and one pant of accused Arjun Tiwari having blood stains as Ex P8 (1 to 2).
PW17 is SI Manohar Lal. He stated that on 19.04.2003, he inspected the place of occurrence i.e Gujrat Paper Mill Khasra No. 101/1922, Village Alipur, Delhi at the instance of complainant Jagdish. Rough notes and measurements were taken in presence of SI Ram Saran. On 20.04.2003, he prepared scaled site plan which is proved as Ex PW 17/A. Rough notes and measurements were destroyed after making scaled site plan.
PW18 is Sh A.K. Srivastava. He deposed that on 26.05.2003, nine sealed parcels of present case along with relevant documents were received in their office. He examined the same and prepared reports of this case on 16.04.2004 which are proved as Ex PW 18/A and Ex PW 18/B respectively. Forwarding letter of their Director is proved as Ex PW 18/C. PLEA AND DEFENCE OF ACCUSED.
In the statement U/s 313 Cr.P.C the accused persons have either denied the prosecution case or have expressed their ignorance about the incriminating evidence emerging from prosecution case put to State Vs. Surinder etc 26 them by different questions. They have stated that they are innocent and have been lifted from their house and falsely booked in the present case. The accused persons did not lead any evidence in defence. ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned Amicus Curiae for the accused persons and have gone through the record of the case and relevant provisions of law.The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 (DB), it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
State Vs. Surinder etc 27 As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be State Vs. Surinder etc 28 drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. 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 v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 State Vs. Surinder etc 29 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. 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 v. 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.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. 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 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....".
State Vs. Surinder etc 30
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
State Vs. Surinder etc 31
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"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 be in the first instance be fully established and all the State Vs. Surinder etc 32 facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (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 guilty;
(3) the circumstances should be of a conclusive State Vs. Surinder etc 33 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.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In a recent pronouncement in Musheer Khan alias Badshah Khan Versus State of Madhya Pradesh 2010JT1535 SC following observations were made by Hon'ble Supreme Court:
"(46) In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence.
(47) This court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the court must adopt a cautious approach as circumstantial evidence is "inferential State Vs. Surinder etc 34 evidence" and proof in such a case is derivable by inference from circumstances. (48) Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with merest of touches."
The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
(49) To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. [see Raghav Prapanna Tripathi and others V. State of U.P (AIR 1963 SC 74)].
(50) The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other State Vs. Surinder etc 35 person than the accused. [see: State of U.P V. Ravindra Prakash Mittal (1992 Crl. L. J 3693 (SC)]."
LAST SEEN EVIDENCE To show that the accused persons and the victim were seen last, the prosecution has produced the witness PW5 Brij Kishore son of the victim Vishwanath but he did not oblige the prosecution by stating that he had seen his deceased father and the accused persons together in the factory in which his father was working on 8/3/2003. Despite cross examination of this witness he did not support the prosecution in this regard. Therefore, the important incriminating circumstance that the accused persons and the victim were seen by the son of the victim PW5 Brij Kishore on 8/3/2003 with the victim could not be proved by the prosecution.
RECOVERY OF WEAPONS OF OFFENCE PW 1 to PW 12 have stated nothing to connect the accused persons with the crime in question. The prosecution has also recovered ligature material recovered from the spot but the ownership of the same is not attributed to any of the accused persons by proving that this State Vs. Surinder etc 36 ligature material belongs to either of the accused persons.
The prosecution has produced four witnesses PW 13 HC Ram Phal, PW 15 SI Rakesh Kumar Dadwal and the investigating officer PW16 Inspector Partap Singh. By their evidence the prosecution has proved that a sum of Rs 500/ which was the share of accused Arjun Tiwari in the looted amount of Rs 3000/ looted by the accused persons from the victim after committing and murder was recovered vide memo Ex PW 13/A. They have also proved that one iron pipe Ex P2 the weapon of offence was recovered from accused Surender from the roof vide memo Ex PW 13/D and one axe Ex.P1 was got recovered by accused Sarju from the roof of the room vide same memo Ex PW 13/D. In addition the prosecution has also relied upon the recovery of bloodstained clothes Ex P8 (12) of accused Arjun Tiwari vide memo Ex PW 16/G. The question arises whether the recovery of the weapon of offence and blood stained articles from the accused persons is sufficient to establish the prosecution case against them. In Ashish V State 2010 (2) CC Cases (HC) 333 Delhi (DB) the following observations were made by division bench of our Hon High Court:
"17. As regards the recoveries, as held in the decisions reported as JT 2008 (1) SC 191: 2008 (1) C.C. Cases (SC) 217 Mani Vs. State of State Vs. Surinder etc 37 Tamil Nadu: 1999 Crl.L.J 265 Deva Singh Vs. State of Rajasthan; AIR 1994 SC 110 Surjit Singh and Anr. Vs State of Punjab;
AIR 1977 SC 1753 Narsinhbhai Haribhai Prajapati etc Vs. Chhatrasinh & Ors and AIR 1963 SC 1113 Prabhu Vs. State of UP, the recoveries of ordinary articles such as knife etc are treated as weak pieces of evidence.
18. The reason is obvious. Unlike a fire arm which creates distinctive marks on the bullet and the cartridge, a knife can at best be opined to be a possible weapon of offence and not the only weapon of offence.
19. As regards the two shirts got recovered by the coaccused of the appellant, part of the disclosure statement that one shirt was the one which he was wearing and the other was the one which was worn by the appellant is inadmissible in evidence through the route of section 27 of the Evidence Act. There has to be some other evidence to prove that the appellant and his junior coaccused were wearing one shirt each. That apart, as held in the aforesaid decisions, such kinds of recoveries are treated as weak evidence. Besides, recoveries by the co accused are not incriminating evidence against the other."
In Alizan versus State 2010 (3) CC Cases (HC) 76 Delhi (DB) wherein following observations were made:
State Vs. Surinder etc 38 "29. We are left with the recovery of blood stained clothes and the alleged weapon of offence. Such kinds of recoveries have always been treated as weak recoveries as held in the decisions reported as AIR 1963 SC 1113 Prabhu Vs State of U.P;. AIR 1977 SC 1753 Narsinhbhai Haribhai Prajapati etc Vs. Chhatrasinh & Ors; AIR 1994 SC 110 Surjit Singh and Anr Vs. State of Punjab; 1999 Crl.L.J 265 Deva Singh Vs. State of Rajasthan and JT 2008 (1) SC 191. 2008 (1) C.C. Cases (SC) 217 Mani Vs State of Tamil Nadu."
In Jahid @ Lambu Vs. State 2009 (3) JCC 1760 Delhi (DB), it was observed as follows:
" This leaves us with only the circumstance of recovery of a blood stained knife and blood stained clothes at the instance of the appellant. We have gone through the decisions referred to by the learned counsel for the appellant on this point. We are in agreement with the submissions made by him that without there being any other circumstance, the recovery of the blood stained knife and clothes by themselves would not lead us to the conclusion that the appellant is the perpetrator of the crime. "
In view of the above, the recovery of the hammer or iron rod or the blood stained articles are not of much value to support the State Vs. Surinder etc 39 prosecution case convincingly against the accused persons nor the recovery of currency notes from one of the accused Arjun is of much value. Same is also the position of blood stained clothes of accused Surender Tiwari.
MEDICAL EVIDENCE PW1 Dr. B.N. Acharya CMO BJRM hospital has proved the postmortem report of the deceased Vishwa Nath Singh as Ex PW 1/A. The details of his report is mentioned in the statement of PW1 referred above under the heading prosecution evidence. The opinion as to cause of death given by him is that the injuries were ante mortem in nature and injury No.1 was caused by ligature cloth possible present on the neck and other injuries were caused by blunt object. Death was due to asphyxia consequent to ligature strangulation. Pressure over neck structure was sufficient to cause death in ordinary course of nature. Subsequently the hammer and iron rod recovered were sent for medical opinion of this doctor who gave opinion that the injuries mentioned in postmortem report at Sl. No. 2 and 3 have been caused by blunt end of the axe or rod or any other similar type of blunt object. Therefore, though the medical evidence of PW1 Dr. B.N. Archya is sufficient to prove death of victim Vishwa Nath and nature and causes of the injuries but as already discussed the medical opinion of the doctor is not enough State Vs. Surinder etc 40 to cent percent confirm that the hammer and iron rod recovered were only used for causing injuries on deceased Vishwa Nath, though, there is possibility of the same. Further, who caused injury to Vishwa Nath and who strangulated him are not the question which is within medical domain. Only eye witness account or strong circumstantial evidence can confirm this fact which is missing in this case. RESULT OF THE CASE In view of the above discussion, the prosecution has failed to prove the important part of chain of incriminating evidence alleged against the accused i.e last seen evidence. The other incriminating evidence produced by the prosecution taken collectively is unable to prove the case against the accused persons beyond reasonable doubt. Therefore, the three accused persons Surender, Arjun Tiwari and Sarju Paswan are, in my view are entitled to benefit of doubt. They are accordingly acquitted of the charge under Sections 302/34 IPC. As regard accused Lakhan @ Lakha, he is proclaimed offender. The file shall be taken up as and when this accused is arrested and produced before the court after committal with the supplementary challan against him. The personal bond and surety bond furnished by accused Surender are canceled. The other accused Sarju Paswan and Arjun Tiwari who are in judicial custody be released forthwith if not required to be kept in jail State Vs. Surinder etc 41 in any other case. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The file be consigned to the record room.
Announced in the open court on this 14th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Surinder etc