Delhi District Court
State vs Deepak @ Peta S/O Late Puran Chand R/O ... on 3 February, 2010
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IN THE COURT OF SH. ATUL KUMAR GARG, LD.
ADDL.SESSIONS JUDGE DELHI
Sessions Case No. 50/08
DATE OF INSTITUTION:- 27.11.2008
DATE OF RESERVE FOR ORDER: 29.10.2009
DATE OF DECISION:- :- 27.01.2010
State Vs Deepak @ Peta s/o Late Puran Chand r/o 6/207 Trilok Puri,
Delhi
2. Dheeraj s/o Ramesh Chand r/o 6/90 Trilok Puri, Delhi.
FIR No. 432/07
P.S. Kalyan Puri
U/s 302/201/34 IPC
JUDGMENT
Standards of proof to convict a person on circumstantial evidence has been couched by the Apex Court in the proposition that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused, when taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else, and 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. It needs no reminder that legally established 2 circumstances and not merely anguish of the court can form basis of conviction and more serious the crime the greater should be the care taken to scrutinize the evidence, least suspicion takes place of proof.
Whether the prosecution could establish a complete chain of evidence which is conclusive in nature and consistent with the hypothesis of guilt of the accused and inconsistent with his innocence? For an answer facts gain importance.
As borne out of the report under section 173 of the Code of Criminal Procedure 1973 (in short the Code), an information was received to the police at about 23.33 hours about the murder having committed in block No. 6 at house NO. 6/207 Trilok Puri, Delhi on 25.6.2007. One SI Om Prakash was entrusted the above said DD No.33A for inquiry. SI Om Singh reached at spot along with Ct. Shiv Kumar. He had found a dead body wrapped in the black colour cloth bag under the cot in the portion of the room at ground floor. Bag was opened and Shiv Kumar had identified the dead body of his father. Police had recorded the statement of Shiv Kumar and got registered the case u/s 302 IPC. Shiv Kumar in his statement has stated that he along with his brother and sister has been living at 6/207 Trilok Puri, Delhi. Name of his mother is Rekha Devi. His father used to work in the MCD. He used to return back from his duty at about 12.30pm in the day time. On 25.6.2007 his father had returned as usual at 12.30pm in his house and had taken the food. Shiv Kumar had done the Malish ( Massage) at his asking on the head and foot of deceased in the room of his house. His brother Deepak 3 had sent him to fetch the memory card, lid, charger and two connection at 22 block Trilok Puri. He had visited to the three shops and disclosed to Deepak at the house that the same will have to be of the sum of Rs. 860/-. Deepak was sent to him near stair case below the house. His father was sleeping also in the room. He again sent him at 15 block Trilok Puri for inquiry about the rate. He had returned back after inquiry and sent Deepak at the road outside the street and told about the same rates. He further told that thereafter he also sit on the road due to unavailability of the electricity. Thereafter, his mother has returned from her job at about 4.00pm. Thereafter, he had gone to his friend. When he returned back, he found the room in which his father was sleeping locked. He asked his mother as to why the room was locked. His mother told him to ask Deepak as he had poured/ sprinkled some medicine. He asked Deepak and he told him that he had sprinkled the medicine to kill the Khatmal (bugs) in the room below and he had instructed not to open the room for ten hours as there is effect remained there. He had also lied at the first floor. When he woke up at 7.30pm and went to the shop of mobile shop and when he returned back, Deepak was found outside the ground floor and asked him to sleep on the above floor. He had slept at the room at upper floor, his mother had already gone to the house of his maternal aunt at 12 block Trilok Puri. Thereafter, he woke up due to rain and he saw that many persons assembled outside his house and somebody told that Deepak had killed his father. Thereafter, his uncle Ranjit had broken the lock below and he had seen while entering inside the room. 4 That dead body of his father was in cloth bag. Blood was also there. Thereafter, he had dialed the 100 number. Somebody had also called the police.
Police had registered the case on the basis of above said statement and started the investigation. During the course of investigation, police collected the evidence, recorded the statement of witnesses and arrested the accused persons. Accused Deepak was arrested on 2.7.2002 from road NO. 56 Anand Vihar bus terminal where he had confessed his guilt stating that his father had given him step fatherly ill treatment and used to tease his elder sister Seema. That is why he along with his associates Dheeraj s/o Ramesh Chand has killed his father with the help of hammers and put the dead body in the bags under the cot and locked the room. He tried to arrange a vehicle for disposing the dead body but in the mean time his mother had cried and he had absconded along with his associates to Hapur. Accused Deepak had also got recovered the piece of baniyan beneath the bushes near the Nala across the Trilok Puri road B block and disclosed that from the half piece of that Baniyan he had tied the black colour bag in which the dead body was put. Thereafter, he had also produced one key without having any mark and told that he had thrown the key after locking the door. He had also identified the shop at B-2 Central Market Kalyan Puri from where he had purchased the black colour Makhni Jeans. He also disclosed and identified the Prem Tailor at 16/6 Kalyan Puri from where he had got stitched the big bag. During the police custody, he had 5 also got arrested his associate Dheeraj near the Chand Cinema who had also admitted his guilt stated that he had moved in this act in the bait that the money which has to be received after the death of Pooran Chand would be shared by him as well as Deepak. Thereafter, he had made planned and purchased the clothes from Central Market and got stitched the same from Prem Tailor. He had purchased two big hammers and put them in his house and on 25.6.2007 they reached at the house of Deepak where they have struck the hammers to the father of Deepak. After completing the investigation, the challan was presented before the court for trial.
After being heard both the accused were charged u/s 302/34 IPC vide order dated 9.1.2008 to which they pleaded not guilty and claimed trial.
To substantiate the charge, the prosecution has relied upon the testimonies of 25 witnesses I.e. Shiv Kumar, Smt. Rekha, Seema, Meera Devi, Satish Kumar, Kirori Mal, Manoj Kumar, Jitender, Vinod Kumar, Ranjit, Dr. Mukta Rani, Dr. C.P Singh, SI Mukesh Kumar, HC Lalta Ram, HC Madan Kumar, MHC (M), Ct. Shiv Om, Ct. Shiv Kumar, Ct. Mohd. Khalid,Ct Ombir Singh, Ct Inder Kumar, Ct. Adesh Tyagi, Ct. Mukesh Kumar, SI Om Singh and inspector Rajeshwar Singh. In fact the prosecution had examined all the witnesses in support of its case.
The prosecution evidence consists of three sets of evidence. The first set of evidence consists of oral testimonies of Seema, Smt. Rekha, Shiv Kumar, Satish Kumar, Meera Devi, Vinod Kumar, Manoj Kumar, Kirori Mal, Ranjit and Jitender examined as PW1, 2, 3, 4, 5, 6, 7, 8, 9, and 15 6 respectively. The second set of evidence consists of PW-11 Dr.C.P Singh, PW-18 Dr. Mukta Rani. The third set of evidence consists of police officials who are associated with the investigation of the present case and tried to chain the circumstances as to leave no doubt about the innocence of the accused persons.
PW-1, 2, 3 and 5 have witnessed the conduct of the accused Deepak just after the incident. They had also witnessed the extra judicial confession having made by the accused Deepak to them when they persistently asked the accused to open the door. PW-4 and PW-8 being brother and father of the deceased identified the dead body of the deceased. PW-6 and 9 are the neighbour who had come out from their respective houses after hearing the noise . They found many people collected in front of house no. 6/207 saying "Hadsa ho Gaya'. They had also witnessed the breaking of lock and found black colour gunny bag ( kale rang ka bora) from which the blood was flowing. PW- 7 and PW-15 are the witnesses of the selling of the black colour clothes to the accused as well as stitching, thereon, respectively.
Now, comes, in detail, the evidence of the material witnesses. PW-1 Seema was the daughter of the deceased. She deposed the fact that on 25.6.2007 her deceased father Pooran Chand left the house at about 6.00am for his duty. Thereafter, her mother also had gone for her work. At about 12 noon, her father came back to the house , as he usually come at about 12 noon after completion of his duty hours. Thereafter, her 7 father got filled the gas cylinder from the gas agency. Thereafter, her younger brother Shiv Kumar gave food to her father. She further deposed that after taking lunch, her father got malish from her brother Shiv Kumar. After getting Malish from Shiv Kumar, her father went to sleep in the room on ground floor. Thereafter, her youngest brother Shiv Kumar was sent to the market by accused Deepak. She further deposed that at about 4.00pm when her mother came to the house, she asked her whether she had seen her father and asked her ( Seema Kya Tune Papa ko Khana de Diya) . She replied that Shiv Kumar had given food to Papa. She further deposed that the room in which her father was sleeping was found locked. Her mother asked accused Deepak as to why the room has been locked. On this accused, accused Deepak told that " Khatmal Marne Ki Davai Ger Rakkhi Hai. They asked for the keyes of the room but accused Deepak did not give the same to them. Since her father used to consume liquor, her mother thought that her father might have sit somewhere in the locality. Thereafter, her mother searched for her father in the locality but he could not be found. She further deposed that her mother called her Mami namely Meera. Her Maami asked accused Deepak " Deepak Kamre ki Chabi Kyon Nanhi Dea Raha, La Chabi De. Tab Ye Pani ho Gaya aur bola ki Maine Papa ko kuch Kar Diya Hai, Mammi ab Papa Nanhi Rahe and then ran away. Her mother started crying and weeping and after hearing her crying, Mohalla people gathered there. Some one broke the lock and door was opened. Mere Papa Jinda Nanhi Rahe .
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PW-2 Mrs Rekha is the deceased's wife. She deposed that she works in Kothies in Lajpat Nager. She further deposed that from her wedlock with deceased Pooran Chand, Shiv Kumar was born. From her earlier marriage, she had two children, namely Deepak and Seema. She further deposed that her husband has been working in MCD as Safaikaramchari in Karkardooma Courts. Earlier to her present address, they used to stay at house O. 6/41, Trilok Puri, which was belongs to her Sasur. Her Sasur sold that house and gave her her share of Rs. 80,000/-. Thereafter, they bought house No. 6./207 Trilok Puri for Rs. 2,25,000/- and for the purpose, she had taken Rs. 30,000/- from her brother Kalicharan. Rs. 40,000/- was taken by her deceased husband on loan and Rs. 50,000/- she had taken from the Kothiwalas where she used to do household work. Her son Deepak has not been doing any work and she said that " Mere pati Pooran Chand aur Deepak ka din raat jhagra rehta tha. Her husband used to leave for duty in the morning at 6.30pm and he used to leave for his work at about 7.00am.
She further deposed that on the date, her husband died, her husband had come back at home at about 12.00noon. She had returned from her work in the evening at about 4.00pm. When she reached back at home, she inquired from her daughter Seema, who is also called Dana and was on the Doosri Manzil, as to whether her Papa, deceased Pooran Chand, have had the lunch. She told her that Shiv Kumar ne de diya hai. After this, she had her lunch and lied down and slept for some time on 9 the second floor. At that time, accused Deepak was on the Pehli Manzil and sitting outside the door. When she got up and came down, Pehli Manjijl and inquired from him as to why he had locked the neeche wali manjil, he told her that Andar Khatmal Maarne Ki Dawai Dali Hai. Thereafter, she had searched her husband but she could not found him. She further deposed that thereafter, she called her Bhabhi Meera as her Jija was not traceable. She told her that Deepak ne tala laga diya hai aur who tala nahi khol rana hai. She told Meera though she had not asked Deepak as to why he was not opening the door of the pehli Manzil, Yeh Jaldi utar Kar aa Gaya. She further deposed that Phir Isne kaha ki Papa nahin rahe, Phhir Isne kaha ki isne Papa ko maar diya hai aur ye wahan se Bhaag gaya. The neighbors also collected there and called the police over NO. 100. Then some one broke opened the lock of the door. Then police came and dead body of her husband Pooran Chand was also found in the room. Dead body of her husband was found in a bora lying under Lakri ki Khaat. She identified the dead body of her husgand there.
One more material witness is Shiv Kumar and he deposed about the fact that after given malish to Papa, he came to Doosri Manjil to have his own food. Then accused Deepak sent him to 22 block, Trilok Puri for checking the rates of lead, charger, one memory card and two new connections for the mobile. He further deposed that when he returned from the market at about 2.00pm accused Deepak met him in the gali, Hamaare Ghar ke Wagal Wale Ghar ke Saamen. Then he told Deepak that 10 in sab Cheejon ka rate 860 rupeye hai. Phir isne mujhe dubara 15,21 and 10 block mein in sabke rate pata karne ke liye bhej Diya. When he again came back accused Deepak met him on the road outside the gali of their house and he told him that at all the places, rate was the same. Thereafter, after collecting book from the shop near his house, which was given for binding, when he was again returning back to his house, accused Deepak took away the book from him on the road and did not let him go to the house. Then he stayed back on the road and started talking with his friends. Thereafter, he went to the house of his friend for having food. Thereafter, he again came to the road and sat there. In the mean time, her mother returned from her at about 4.00pm. At about 4.45pm he then reached back home and at that time, Neeche Ka Kamra band Para tha. When he inquired from his mother as to how the door was lying locked, her mother told him that Deepak Ne Khatmal Maarne Ki Dawai Dali Hai aur Iska Asar 10 Ghante Tak Rehta Hai. Thereafter, he stayed back on doosri manzil and slept there. Then he got up at about 7.00pm and having washed his face and the hands, he went to mobile shop. Thereafter, he returned back at home at about 11.30pm. Then Deepak met him on the ground opposite his gali and he told him that they should reach back home fast and sleep, otherwise Papa Kundi Laga Denge. Accused Deepak did not come with him and asked him to go and sleep on the roof. On this, he came back home and went to the roof and slept there. He further deposed that when there was drizzling due to rain, he woke up and also heard the noise down below. At that time, someone told 11 from below that Tere Papa ko Deepak ne Maar Diya Hai. He also identified the dead body of the deceased.
PW-5 Smt. Meera deposed that deceased Pooran Chand was his Nandoi and the name of her nand is Rekha. Her deceased Nandoi was residing alongwith his family members I.e. Two sons namely Shiv Kumar and Deepak and one daughter namely Seema and her nanand Rekha in Gali No. 6 Triloik Puri. . She further deposed that on the day of incicent her nanand Rekha came to her house at about 9.30/9.45pm and told that Deepak Tala Nanhin Khol Raha Hai tum mere saath Chali. Thereafter, she accompanied Rekha to her house. On reaching there, accused Deepak was found present at tisri Manzil. She along with her nanand went on Doosri Manzil and from there, she called Shiv Kumar. On this, both Shiv Kumar and Deepak came down. She further deposed that thereafter, she has asked to accused Deepak to open the lock. She further deposed that from the mohalla people someone had told that the deepak has killed his father. Police had come to the spot and did the proceedings. Thereafter on 26.6.2007 the cremation of her Nandoi Pooran Chand was performed.
Second set of evidence consists of testimony of PW-
11 and PW-18. PW-11 Dr. C.P Singh examined the lock and key in the laboratory. He deposed that that on 31.7.2007 through Ct. Mohd. Khalid he received two pullandas having intact seal. Seal was tallied to the specimen seals provided. He further deposed that on opening the first parcel , one hammer alongwith one lock were found. On physical examination of lock and 12 key in the laboratory, it was observed that the lever system of the lock can be made in alignment for locking and unlocking the lock mark Ex.-2 by the key marked Ex. -3. He proved his report in this regard as Ex. PW11/A. PW-18 Dr. Mukta Rani deposed that on 26.6.2007 she had conducted the postmortem on the dead body of deceased Puran Chand brought by Inspector Rajeshwar Kumar. He further deposed that on examination, he found following external injuries on the body of deceased I.e.
1. Lacerated wound 7x1.5x bone deep over left temporal area of head placed 6.5 cms above left ear pinna.
2. Lacerated wound 7x1.5cm x bone deep in front and above the left ear pinna.
3. Lacerated wound 4.5x1x1 cm over inner and upper half of left ear pinna.
4. Lacerated wound 2x 0.5x2.5 cms over outer part of upper1/3 of left ear through and through the left ear.
5. Bruise 5x2.5 cms reddish just below left ear.
6. Abrasion 2.5 x0.2 cms reddish over left side of nape of neck placed 5.5cms behind left ear.
7. Bruise 10.8 cms reddish over left ear and all around left ear.
8. Bruise over inner side of both lips in an area of 7.x5 cms with loosening of left lower canine, tooth and lacerations ogums and multiple fracture, dislocation of facial bones including jaw.
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9. Bruise 5x 1.5 cms reddish over back of left shoulder placed 12 cms below shoulder tip.
10.Abrasion 2x0.2 cms reddish over upper outer back of left side of chest placed 17 cms to left of mid line and 7.5cms below and inner to injury NO.9.
11.Bruise 5x5 cms over outer middle 1/3rd of back of left side of chest placed 5 cm .
12.Bruise 8x7 cms reddish over outer lateral part of middle 1/3rd of left side of chest placed 11.5cms outer to mid line and adjacent to injury No.11.
13.Bruise 16x7 cms reddish over outer lower lateral aspect of left side of chest placed 14.5 cms outer to mid line and 6 cms below injury No.12.
14.Bruise of dimension 4.5cms x 2.5x2 cms reddish over outer lateral aspect of left side of abdomen placed 21 cms outer to mid line.
15.Bruise 2x2 cms reddish over lateral aspect of left side of abdomen just inner to injury No.14.
16.Bruise 9x7 cms reddish over outer lower lateral aspect of left side of abdomen with abrasion in its centre of size 2x1cms.
17.Multiple abrasions reddish over back of right hand, two over kunckes of middle finger. 0.1X0.1 cms, O.1.X0.1 cms, 1x1 cms over middle back of right ring finger.
18.Bruise 3x1 cms reddish over back of right middle finger.
She further deposed that on internal examination of the dead body, she found the following injuries I.e there was effusion of blood 14 over ribcage on reflection of skin of chest. There were fracture of all the ribs on left side along with posterior vertebral lines. Both lungs were congested. Stomach contained about 250ml of distinguished rice and dal particles, liver was congested. Spleen showed multiple lacerations and contusions. Underneath injury NO.14 and 15. Pelvis was NAD.
In the head there was effusion of blood on reflection on scalp on left side as well as temporals muscle via injuries nO.1 to 7 in the skull there were multiple commutated fractures of valunt and base including facial bones via injuries No.1 to 8, brain showed contused lacerations of both temporal lobes and subdural haemorrage over left frontal, temporal and right fronto temporo parietal area of crebrum via injuries No. 1 to 7. There was subradhniod haemorrage all over the brain. She further deposed that after examination, she opined the cause of death as combined effect of cranio crebral damge and injuries to abdominal organs produced by blunt force impact via injuries No.1 to 7 and 14 to 16 are sufficient to cause death in ordinary course of nature individually and collectively. The time since death was about one day. She proved her report as Ex. PW18/A which bears her signature at point A. She had also given the opinion on 6.7.2007 in relation to examination of weapons in respect of post mortem NO. 170 on the body of Puran Chand.
Third set of witnesses consists of police officials who are associated in the investigation of this case. PW 10, 12, 13, 14,16 and 23 are the formal witnesses. PW-10, PW-12, and PW-13 proved the scaled site plan, 15 FIR, PCR form-1 as EXPW10/A, EXPW3/DA and EXPW13/A respectively. PW-14 is the MHC(M). he proved the entry in the malkana register no. 19 vide EXPW14/A running into 6 pages. PW-16 took 23 photographs of the dead body and proved the same as EXPW16/A-1 to EXPW16/A-23 and negatives as EXPW16/A-24 to EXPW16/A-46. PW-23 was entrusted with the copy of FIR which was meant for Ld MM as well as senior police officials. PW-17 and 19 are the witnesses of the apprehension and arrest of the accused Deepak on 2.7.07 as well as of the witness of the disclosure statement made by the accused Deepak. They also witnessed the recovery of the piece of baniyan and key made at the instance of the accused Deepak. PW-17 had also joined investigation on 5.7.07 as well as 31.7.07 and collected case property on those days from Malkahana vide R C no. 86/21 dated 5.7.07 as well as vide R C no. 105/21 dated 31.7.07 and taken to the LBS Hospital and FSL Rohini respectively. PW-20 and 21 are the witnesses of the arrest of the accused Dheeraj as well as recovery, thereon, made at the instance of accused Dheeraj, in pursuance of Disclosure statement made by him.
PW-22, 24 and 25 are the material witnesses. PW-22 Ct. Shiv Kumar and PW-24 SI Om Singh were the police officials who had reached at spot on receiving the DD No. 30A. They found the dead body of deceased Puran Chand in black colour cloth bag. They made inquiry and SI Om Singh had recorded the statement of Shiv Kumar. PW-22 took the rukka to P.S and got the case registered. He had handed over the same to Inspector 16 Rajeshwar Singh for further investigation.
PW-24 also deposed that the black colour gunny bag was taken into possession along with one chadar, Towel and baniyan and same were sealed and were taken into police possession vide memo Ex. PW3/5 bearing his signature at point B. From the box lying in the room two big size hammers were taken out and they were taken into possession after sealing the same with the seal of RK and taken into possession vide Ex. PW3/2 and PW3/3 bearing his signature at point B respectively. Two pillows, one rajai cover, one Takiya, one cover of white and black colour having blood stains were also taken into possession after sealing the same with the seal of RK and taken into possession vide memo Ex. PW3/4. From the spot the blood control earth and blood was lifted form the spot and separately sealed with the seal of RK and taken into possession vide memo Ex. PW3/6 and PW3/7. One small hammer and one lock lying near the gate were also lifted from the main gate of the room. Same were sealed with seal of RK and taken into possession vide memo Ex. PW3/9 bearing his signature at point B. From the spot one Pyjama, cover of pillows having blood stains were also lilted. Same were sealed with the seal of RK and taken into possession vide memo Ex. PW3/A. The body of deceased was shifted to LBS Hospital for postmortem. Next day postmortem on dead body of Puran Chand was conducted and it was handed over to relatives in lieu of receipt Ex. PW4/2 on identification of Kirori Mal and Satish Kumar. He had identified the case property I.e. Two pillows as Ex. P-3 and P-4, one more pillow Ex. P-5, rajai Ex. P-6, Baniyan 17 Ex. P-8, black colour bag Ex. P-9, one chadar Ex. P-10, one another pillow Ex. P-11 and one another baniyan Ex. P-12, both hammers Ex. P-1 and P-2 have already been exhibited. Pyjama Ex. P-15, one another cover of pillow Ex. P-14 is already exhibited.
Next important witness is Inspector Rajeshwar Kumar, is the IO of the case. He is the person who had got the site photographed, recorded the statement of the witnesses, and taken into the possession of articles lying in the room, blood control earth, were seized, dead body was got postmortemed, accused persons were arrested, piece of baniyan was got recovered. It was recovered from the possession of accused Deepak. Later on accused Dheeraj was also arrested as he was involved in this case. He had also made the disclosure statement which was recorded by him.
In order to explain the circumstances appearing against the accused persons, the entire incriminating evidence brought on record were put to the accused persons to which accused persons pleaded their innocence but they did not lead any defence evidence.
I have heard the arguments and analyzed the evidence brought on record. On behalf of State Ld. APP Sh. Ramesh Kumar had presented the fact and submitted that the prosecution has proved its case against the accused persons from the evidence of PW-1 to PW-3 that these are the accused persons only who had committed the murder of the deceased Puran Chand. There all the three witnesses I.e. PW-1,2 and PW-5 deposed that the 18 accused Deepak had made extra judicial confession by saying that he had killed his father just immediately when they were asked to open the door.
On the other hand, Ld. Amicus Curie, Shri Sanjay Gupta, Counsel for the accused had argued that in the present case, the prosecution has failed to establish the motive which is very much material in the case of murder based on circumstantial evidence. The cross examination dated 22.9.2009 of PW-1 Seema is enough for disappearance of motive in the present case when she has admitted that she was never teased or molested by deceased Pooran Chand prior to his death. According to him, the prosecution is duty bound to complete the chain of circumstances so as to bring the home the guilt of accused in the present case. The entire chain is missing. According to him, the PW-7 had failed to identify to any of the accused persons having taken any clothes. He had also argued that during cross examination , PW-7 has admitted that he has not handed over any bill to police and that accused was not known to him prior to visiting the shop. He failed to tell about make of the clothes, bill of purchase not given by him to the police. He further argued that PW-25 during his cross examination has admitted that no bill was collected by him from PW-7 regarding sale of clothes nor any sample of clothes was collected by him from Manoj Kumar. He further argued that PW-14 ASI Jai Ram MHC (M) has broken the chain of the circumstances further. The prosecution has miserably failed to prove that case property was not tempered with. During cross examination PW-14 has admitted that form FSL is required compulsorily to be sent alongwith the 19 case property for opinion. His admission that no such form was sent with the case property and that word FSL on Ex. PW14/A at point DA is not in his handwriting, clearly goes to show that PW14/A was tempered with. He further argued that PW-14 and PW-25 again failed to give the date when the case property had come back on three dates to malkhana.
He relied upon the judgment titled as S.L Goswami Vs State of Madhya Pradesh 1972 Supreme Court cases 258 where it was held that :-
"It is always for the prosecution to prove all the ingredients of an offence."
He had further relied upon the judgment titled as State Vs Ravi @ Munna 2000 (I) Delhi 115 where it was held that:-
" Circumstantial evidence-- Well settled that in such a case the evidence must satisfy three tests, firstly, the circumstances must be cogently and firmly established, secondly, those circumstances should be of definite tendency unerringly pointing towards guilt of the accused and thirdly, the circumstances taken commutatively should form a chain so complete that there is no escape from conclusion that within all human probabilities the crime was committed by the accused and none else."
He had further relied upon the judgment titled as State of UP Vs Ram Balak and anothers Supreme Court of India where it was held that :-
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"The case based on circumstantial evidence--
Conviction can be based solely on circumstantial evidence but it should be tested by the touch stone of law relating to circumstantial evidence. 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. "
He had further relied upon the judgment titled as Vijay Singh Vs State of Madhya Pradesh 2005 CrL. L.j 299 where it was held that:-
" Preparation of site plan is not mere formality but it is essential feature in order to reach firm conclusion by the court has to whether offence was committed by accused or not-- Serious infirmity in site plan as it does not indicate that from which place accused fired gun and place where deceased was standing. Benefit would go to the accused. "
He further relied upon the judgment titled as Wilson Dayal Vs State 1993 JCC 3 where it was held that:-
" Narcotic Drugs and Psychotropic Substances Act -Section 21-- offence under- recovery of 900 gms Charas -For nearly 2 months the sample after being taken was kept with the Moharrar Malkhana. No reasons assigned. The casual attitude of the prosecution. The road certificate not produced-- No seal of the officer in charge was affixed. The IO in very shorded manner conducted the 21 investigation. The IO did not bother to join the shopkeeper at whose shop the charas weighed . No explanation-- The prosecution miserably failed to bring home the guilt-- Conviction and sentence set aside."
By citing the above said judgments, the Ld. Defence counsel stated that the prosecution failed to bring home the guilt of either accused Deepak or Dheeraj as the complete chain has not been found. It has been broken at number of points, therefore, accused persons deserve acquittal.
I have heard the arguments at bar and gone through the record and analyze the evidence. The case of the prosecution against the accused persons are that the deceased being the step father of accused Deepak had given the step fatherly ill treatment to him and used to tease his elder sister Seema which accused Deepak did not like. In order to take revenge, he along with his associate Dheeraj had killed his father on the fateful day by arranging the hammer as well as gunny bag. They both put the dead body in the black colour bag and placed under the cot. As they were intending to arrange a vehicle for disposing of the dead body, the mother of accused Deepak made noise and they have absconded.
The evidence against the accused Dheeraj is that the disclosure statement as well as identification of the shop at Central Market Kalyan Puri from where the clothes was purchased and Prem Tailor from where the cloth was got stitched as well as the shop of Teliwara from where the hammers were purchased. Police had recorded the statement of PW-7 Manoj Kumar who 22 was running the cloth shop in Central market Kalyan Puri. As per prosecution both the accused persons had purchased the black colour clothes from the shop. The witness had not identified those two boys nor he had identified the clothes. When the Ld. APP had cross examined, he had admitted that he had given his statement to the police on 2.7.2002 as well as on 3.7.2007. In the cross examination, the witness has admitted that he had not obtained any K. Form from Delhi Government at the relevant time. He could not identify all the customers who visits his shop during the course of day.
The prosecution has also examined the PW-15 Jitender to the effect that he had got stitched the bag from the big cloths brought by two boys. He had also identified the accused Deepak. He had not identified the accused Dheeraj as coming to his shop for getting stitches the same.
When the case against the accused Dheeraj is accessed on the strength of evidence examined by the prosecution then it is considered opinion of the court that the prosecution has failed to bring home the guilt of the accused Dheeraj. As per prosecution, both the accused persons had bought hammer , used in the crime, from the shop at Teliwara, purchased black colour clothes as well as stitched thereon. Both the accused persons in furtherance of their common intention had killed the deceased. The testimonies of PW 7 and 15 is not reliable enough. PW-7 has failed to identify those boys who had purchased the clothes. In the cross examination, he had admitted that he had not handed over any bill to the police about his 23 selling clothes to the accused. On an average, he is dealing with 10-15 customers daily and accused was not known to him prior to visiting his shop. PW-15 though had identified the accused Deepak , one of those boys who came for the purpose of stitching the bag yet his testimony is not reliable as his shop was not registered in any shop establishment Department Delhi Govt. , nor he used to stitch any bag like similar bag. Though he used to maintain the bill book in his shop but he had not issued any receipts. He used to stitch, on an average, 20-23, pant and shirt in a month. Disclosure statement involving himself is not admissible in evidence particularly when the same has been made before the police. Pointing out memo etc are already in the knowledge of police. Therefore, evidence of the pointing out memo is also not admissible.
Moreover, PW1,2, 3 and 5 had not seen the accused Dheeraj before the incident or after the incident at the spot. Motive of the accused Dheeraj in joining the hands with the accused Deepak in murdering the deceased has not been proved by the prosecution. Therefore, the prosecution has failed to bring home the guilt of the accused Dheeraj in the present case. Therefore, accused Dheeraj is acquitted U/s 302 IPC.
If we analyze the evidence of prosecution regarding the accused Deepak, the prosecution has in possession of the evidence of the conduct of the accused just after the incident as well as prior to the incident. Prosecution has in possession of extra judicial confession made by accused before PW-1 PW-2 and 5. The prosecution has also in possession of the evidence of the 24 presence of the accused, at the scene of the crime as well as recovery made in the pursuance of the disclosure statement of the accused. All the articles sealed and mentioned as Ex. 1-A, 1-B, 2a, 2b, 2c, 2d, 3, 5b, 5c, 5d, 5c, 5d, 5e, 7,9 10 and 11 were found having human blood group B as per EXPW25/3. Prosecution by the evidence of PW-1, PW-2, PW-3 and PW-5 and the evidence of PW-22, PW-24 and PW-24 has proved that it is the accused Deepak who had murdered the deceased Pooran Chand .
The arguments of the defence that the prosecution has failed to prove the motive which is essential in the case of the murder based on circumstantial as PW-1 had denied in his cross examination to have been teased by the deceased at any point of time. No doubt, motive assumes importance in the case based on circumstantial evidence. But it is not the sole cretira for deciding the case. It is well established law that in the cases based on circumstantial evidence, the existence of the motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise establish by the conclusive circumstances and chain of circumstantial evidence is so complete and is consistence only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
The defence counsel further had tried to make dent upon the testimony of the witness by pointing out the several lapses made in the investigation and submitted that the chain is not complete. He submitted that during the cross examination PW-7 admitted that he had not handed 25 over any bill to the police and accused was not known to him prior to visiting the shop. PW-25 during his cross examination has admitted that no bill was collected by him from PW-7 regarding sale of clothes nor any sample of clothes was collected by him from Manoj Kumar. PW-25 has also admitted that he has not collected any proof that Manoj Kumar is running any shop. He further submitted that PW-14 ASI Jai Ram has broken the chain of the circumstances as the prosecution has miserably failed to prove that case property was not tempered with. PW-14 during his cross examination further admitted that form FSL is required compulsorily to be sent alongwith the case property for opinion. But herein there is no case property where the word FSL has been written on Ex. PW14/A in his handwriting. The witness PW-23 Ct. Mukesh Kumar failed to tell the addresses of any of the house where he handed over the copy of FIR. He further tried to dent the testimony of PW-2 where he had said that he had taken an amount of Rs. 50,000/- from the ladies of Kothies where she was working submitting that it is very difficult to believe that a main servant getting Rs. 600/- per month would be able to fetch loan of Rs. 50,000/- from lady of Kothi. So, in all he had said that tempering of evidence cannot be ruled out, therefore, the case based on circumstantial evidence has not been proved.
Here, in the present case, the PW-1, PW-2, PW-3 and PW-5 are material witnesses. It is admitted fact that nobody had seen the accused Deepak @ Peta committing the murder of deceased by giving hammer blow but it is admitted fact that deceased was died and his dead 26 body was found in black colour bag flowing the blood lying under the cot. As per testimony of PW-1, PW-2 and PW-5 accused was present and he was not opening the door inspite of asking repeatedly. The testimony of PW-1, PW-2, PW-3 and PW-5 established the fact that the deceased Pooran Chand had returned back from his duty at 12.00noon. He was alive since then and he was expired on the same day. Police was informed on the same day. As per post mortem report Ex. PW18/A time since death was one day. Postmortem was conducted on 26.6.2007 at about 1.00pm. Death has been occurred between 24 hours. PW-1, PW-2 and PW-5 all categorically deposed about the presence of the accused Deepak @ Peta at the scene of the crime as well as running from the spot after making extra judicial confession to them that " PAPA NANAHI RAHE".
Extra judicial confession made by the accused before the PW-5 in the presence of PW-1 and PW-3 is also reliable particularly in view of the conduct of the accused running from the spot after his persistent refusal for opening the door of the room where the dead body of the deceased was found. The arguments regarding taking the amount of Rs. 50,000/- from the Kothiwali's as well as contradictions pointed out by the Ld. Amicus Curiae for the accused in the testimony of several police officials does not render the case of the prosecution weak particularly when the circumstances relating to the making of extra judicial confession, coupled with the recovery of weapon, opinion of doctor regarding the possibility of causing death with the weapon , recovery of the key matching with the lock 27 broken has been proved by the prosecution. Defence has not attributed any motive upon the witnesses to implicate the accused in the present case. Accused Deepak @ Peta is the real son of PW-2. There is no motive for implicating the accused in the present case. No mother can implicate her own son in a murder case.
Taking into account the aforesaid circumstances in consideration, I am of the considered view that prosecution has been able to prove that Deceased Pooran Chand was murdered by accused Deepak @ Peta by giving hammer blow on his head. Therefore, I hold the accused Deepak @ Peta guilty u/s 302 IPC .
Announced in the open court On this day of 27th January 2010 ( Atul Kumar Garg) Additional Sessions Judge, KarkardoomaCourts, Delhi.
` 28 IN THE COURT OF SH. ATUL KUMAR GARG, ADDL.
SESSIONS JUDGE DELHI Sessions Case No. 50/08 State Vs Deepak @ Peta s/o Late Puran Chand r/o 6/207 Trilok Puri, Delhi FIR No. 432/07 P.S. Kalyan Puri U/s 302/201/34 IPC ORDER ON SENTENCE Counsel Sh. Sanjay Gupta on behalf of the convict Deepak is present. He presents that it is not a rarest of rare case in which ultimate penalty of death may be awarded. According to him, the convict is the young unmarried boy aged about 22 years and has been facing Judicial custody for the last two and half year. He made prayer that a lenient view be taken.
On the other hand, Ld. APP for the state has opposed the prayer and submitted that no leniency be given to the convict and convict deserved for capital sentence as he had in high handed manner killed his step father by giving hammer blow while 29 he was sleeping.
The case as disclosed by the prosecution is that on 25.06.2007, he alongwith his friend killed his father by giving hammer blow, while he was sleeping in the room at ground floor after taking the meal.
After going through the record and after hearing the arguments on behalf of both the parties, I am of the considered Opinion that these facts no where makes out the case of the prosecution to be rarest of the rare one. Therefore, convict namely Deepak @ Peta is sentenced to undergo R.I. for life and further sentenced to pay a fine of Rs. 5000/-for the offence under section 302 IPC. In default of payment of fine, he shall further under go Simple Imprisonment for a period of one year. A copy of the judgment and order on sentence be supplied to the convict at free cost. File be consigned to record room.
Announced in open court.
Dated 03.02.2010 (ATUL KUMAR GARG)
Addl.Sessions Judge,
KKD Courts, Delhi.