Delhi District Court
Balbir Singh vs State Of Punjab 1996 (6) Supreme on 7 September, 2007
1
IN THE COURT OF SH. O.P.GUPTA, ASJ/ROHINI COURTS,
DELHI
SC No. 466/2006
State
Versus
1. Vinay Kumar @ Samarto
S/o Raj Kumar
R/o E-21/265,
Sector 3, Rohini,
Delhi.
2. Munish Kumar @ Munesh
S/o Panna Lal
R/o E-44, Vijay Nagar,
Phase II,
Delhi.
FIR No. 528/02
U/s 302/449/376/411 IPC
P.S. Rohini
JUDGMENT
1. The case as unfolded by report U/s 173 Cr. P.C. is that on 19.8.2002 the police received information regarding double murder at H. No. 19, Pocket No. F-24, Sector 3, Rohini vide DD No. 23A. The same was sent through Ct. Kishan to SI Ombir Singh who along with Ct. Krishan and 2 Ct. Suresh reached the spot. In the meantime SHO and Inspector Hira Lal, Addl. SHO also reached the spot where on the first floor dead bodies of Bharat and Sarika who were brother and sister were found lying on the bed. There was no apparent injury mark on the body. Room was ransacked. Crime team was called. Iron jal on the top of court yard was found broken from one corner. Case U/s 449/302 IPC was registered. During investigation the scene was got photographed. Dog squad was called. Postmortem was got done. Site plan was prepared. Statement of Narinder Mehta was recorded according to which he passed from F-24, Main Road, Avantika at about 4.15 PM and saw Vinay Kumar/ son in law of Neelam and his servant Munish going out of the house in fast moving condition, he knew both of them well before that time. Accused Vinay Kumar was arrested. He made a disclosure. Accused Munish Kumar was arrested. He also made a disclosure. The accused persons got certain articles recovered from their houses. They pointed out the shop of a tent and shop of hardware. Statements of those shopkeepers were recorded. The postmortem report was collected. After perusal of the 3 postmortem report of Sarika, section 376 IPC was added. Exhibits of both the accused and Sarika were sent to CDFD, Hyderabad for DNA test. Scaled site plan was got prepared. The recovered watches were got identified in TIP. The remaining exhibits were sent to FSL, Malviya Nagar. Four post cards written by accused Vinay to his mother in law Mrs. Neelam Kler from jail admitting his guilt were taken into possession. After completing the investigation the challan was filed.
2. Copies were supplied. The case was committed to the court of sessions. Lateron DNA test report was collected and supplementary challan was filed.
3. A prima facie case for offence U/s 120-B, 449 r/w section 34 IPC and 302 read with section 34 IPC was found against accused Manish Kumar. A prima facie case for office u/s 120-B IPC, section 449 read with section 34 IPC, 376 IPC and section 302 read with section 34 IPC was found against accused Vinjay Kumar. Separate charges were framed to which both the accused persons pleaded not 4 guilty.
4. In order to substantiate its case the prosecution examined 29 witnesses. PW-1 Ct. Ashok Kumar took Dog Squad to H. No. 24/19, Sector 3, Rohini. On the first floor he found dead body of a lady. Dog was made to take smell of the room. Thereafter the dog led him to the roof and then to the road.
5. PW-2 Neelam Kler is mother of both the victims. She deposed that on 19.8.2002 she was posted at State Bank of Patiala, Karala Branch. Her duty hours were from 10.00 AM to 5.00 PM. At the time she used to leave the house her son Bharat and daughter used to remain at the house. Sarika was doing computer course at Ashok Vihar and Bharat was studying in class 12th in Central School, Shalimar Bagh, Delhi. On 19.8.2002 she reached the house back at 5.50 PM and found that on the last step of staircase outside the drawing room at first floor the TV set was lying. She called for her children but none responded. She went to bed room and found both of her children lying 5 dead on double bed. She cried lot and ultimately fell unconscious. After she regained consciousness, at the asking of the police, she checked her belongings and found three watches missing. One watch of Titian with gold chain, second was digital watch and third was ladies watch of her daughter Sarika. On 20.10.2002 she went to police station and handed over four post cards which she found in the letter box. One of the post card contained postal seal bearing dated 28.2.2002 ( sick in fact it should have been 28.8.2002). The same were taken into possession vide memo Ex. PW2/A. Those letters were written by accused Vinay who was her son in law from jail. She proved the letters as Ex. PW2/B to Ex. PW2/E. She identified the hand writing of accused Vinay on those letters. She identified the watches in TIP before Sh. Inderjit, MM and proved proceedings of TIP as Ex. PW2/F. She identified the watches as Ex. P-1 to Ex. P-3. She identified the school belt of her son Bharat as Ex. P-7 and bed sheet as Ex. P-8. She proved the seizure memo of bed sheet and belt as Ex. PW2/G and Ex. PW2/H. 6
6. In cross examination by counsel for accused Vinay she stated that Narinder Mehta was her tenant for three years till 1990. After 1990 Narinder Mehta visited her house but only seldom. She denied that wife of Narinder Mehta died under suspicious circumstances and volunteered that wife of Narinder Mehta died because of illness. She denied that she has sold house No. F-24/19, Sector 3, Rohini through Narinder Mehta. She denied that accused Vinay never harassed her daughter. She denied that she has pressurised her daughter Monica to file petition for divorce against accused Vinay. She denied that accused Vinay had been falsely implicated so that H. No. F-24/19 could be usurped.
7. PW-3 Narinder Mehta stated that on 19.8.2002 at about 4.15 PM he was passing by House No. F-24/19, Sector No. 3, Rohini. He saw accused Manish and accused Vinay running out of House No. F-24/19 which belonged to Neelam Kler. In the evening he came to know that children of Neelam Kler had been murdered. On 20.8.2002 police recorded his statement and both the accused made 7 disclosure. His statement was recorded at police station and he came back to his house. The accused persons were not taken to any place nor they led the police party to any place in his presence. Pointing out memo of place of occurrence by accused Vinay Kumar mark PW3/A bears his signature. He identified the dead body of Bharat and Sarika at the mortuary of Sanjay Gandhi Memorial Hospital. In cross examination by counsel for accused Vinay he stated that he was residing as tenant on the ground floor from 1986 to 1992. He was a property dealer. He knew accused Vinay prior to the incident and Vinay was also doing the business of property. He denied that he used to visit Neelam Kler to persuade her to sell her house through him. He never had any dispute with Vinay with regard to property transaction. He denied that on 19.8.2002 he had not passed by house of Neelam Kler or that he had not seen the accused persons coming out of her house. He denied that he was a stock witness of the police. His statement was recorded by the police on 20th August at 2.00 PM. He denied that accused persons did not make any disclosure in his presence. He denied that he 8 had illicit relation with Neelam Kler or that because of that reason husband of Neelam Kler started indulging in drinking and ultimately died. He denied that he used to supply whisky to husband of Neelam Kler. He denied that he has falsely implicated the accused persons in order to grab the property No. F-24/19.
8. PW-3 was recalled for cross examination. This time in his cross examination dated 15.4.2005 he stated that he reached the house of Neelam on receiving information at about 8.15 PM. First of all both the accused persons led the police party to the house of Neelam Kler and pointed out towards the place of incident.
9. The accused persons recalled PW-3 third time for cross examination. In cross examination dated 2.12.2006 the witness was confronted with his statements dated 19.8.2002 and 20.8.2002 which are Ex. PW3/DA and Ex. PW3/DB where witness seeing both the accused running away from House No. F-24/19, Sector 3, Rohini is not mentioned. Rather what is mentioned is that witness saw 9 them walking fastly. He denied having told the police that he saw the accused entering aforesaid house. He was confronted with his statement Ex. PW3/DB where what is mentioned is that witness saw the accused persons ' JALDI JALDI JAATE NIKALTE' . A crowd had collected in front of place of incident at about 6.00 PM and he came to know about the incident at that time.
10. PW-4 Roshan Lal was examined to prove that both the accused accompanied police to his shop of hardware and purchased four blades and aari from his shop two days back but he did not depose on those lines. He did not correct himself even in cross examination by Ld. APP . He simply admitted his signature on pointing out memo cum identification memo mark PW4/B. He also admitted that four blades and one aari were purchased from his shop by two boys but he could not say whether those boys were accused present in the court. He identified the blades as Ex. P-1 to P-4 and aari as Ex. P-5.
11. PW-5 Kishan Murari deposed that he was running a 10 shop of Kabari. On 20.8.2002 police along with both the accused came to his shop. He could not say whether the accused persons visited his shop at earlier occasions. The accused persons told the police that they had purchased iron rods from his shop 3-4 days prior to the incident. The rod which was shown to him by the police had, in fact, been brought from his shop two days before. He could not say whether the accused persons came to his shop and purchased the rod. He identified the rod as Ex. P-6. He denied that he was deliberately not identifying the accused persons as the same persons who purchased rod from his shop.
12. PW-6 HC Mohan Singh proved copy of FIR as Ex. PW6/A.
13. PW-7 Dr. Komal Singh conducted postmortem on the body of Bharat and proved his report as Ex. PW7/A. In his opinion the cause of death was asphyxia due to constricting force over the neck produced by ligature strangulation. The manner of death was homicide. Blood 11 soaked gauze piece as blood sample and viscera were handed over to IO. He conducted postmortem on the body of Sarika also vide report Ex. PW7/B. Cause of death was asphyxia due to manual throttling. Manner of death was homicide. Sexual assault prior to the murder could not be ruled out. Cloths, blood sample in gauze piece, vaginal smear, vaginal swab, loose hair from pubic hair, all finger nail clippings were sealed with the seal of DKS and handed over to IO. He further deposed that one parcel sealed with the seal of KKS containing a belt was received. The belt was having buckle bearing the monogram of Kendriya Vadyalaya. Strangulation marks over the neck of dead body of Bharat were possible by said belt. He gave a report in this regard which is Ex. PW7/C.
14. PW-8 Dr. Poonam examined accused Munish vide MLC No. 218102 Ex. PW8/A. She took blood sample and after sealing the same handed over to police for DNA testing.
15. PW-9 Daya Nand was running a shop near H. No. 12 F-24/19, Sector 3, Rohini. He accompanied Neelam Kler to the said house at the asking of Neelam Kler and found son and daughter of Neelam Kler lying dead on the bed. He came back to his shop and gave a ring at number 100.
16. PW-10 Sunil deposed that he let out his shop No. 34/4, F-22, Sector 3, Rohini to accused Vinay. He did so 2½ years back and accused Vinay remained there as tenant for seven to eight months.
17. PW-11 Narender Pal identified the dead body of Sarika and Bharat.
18. PW-12 Mashrur Ali stated that he was having a tent house at N 28-29, Indra Market, Mangolpuri. On 20.8.2002 one person came to him to purchase ropes after representing that a new house was being constructed. He might identify that person and pointed out towards accused Manish as probably the same person who had come to purchase rope. The ropes were taken by the accused on rental basis. In cross examination by Ld. APP 13 he denied that police brought both the accused or that both the accused pointed out his shop to the police or that after seeing both the accused he told the police that both of them purchased rope from his shop. The pointing out memo Ex. PW12/A bears his signature.
19. PW-13 Lady Ct. Christa was posted in PCR. on 19.8.02 at 17.18 hours she received a call from House No. 19, Pocket No. A-24, Sector 3, Rohini from phone No. 7163644. She filled the requisite form copy of which is Ex.
PW13/A and handed over the same to PHQ in communication department which passed over the
message to the concerned police station.
20. PW-14 Dr. Kuldeep Singh spoke about Dr. Raman Bhutani collecting blood sample of accused Vinay Kumar for DNA test. He proved the MLC of the accused as Ex. PW14/A.
21. PW-15 SI Manohar Lal, Draftsman, prepared scaled site plan Ex. PW15/A. PW-16 Ct. Balram was 14 posted in crime team. According to him the crime team reached the spot and took photographs of dead bodies of a male and female. He proved the photos as Ex. PW16/1 to Ex. PW16/13, negatives thereof as Ex. PW16/14 to Ex. PW16/24. In cross examination by counsel for accused Munish he denied that he has not taken photos on one single occasion or that he had taken photos on two different dates.
22. PW-17 SI Inderjit Singh was working as MM on 16.10.2002. Application for TIP of case property which is Ex. PW17/A was marked to him. He conducted the TIP of three wrist watches contained in pulanda sealed with the seal of KKS. The proceeding are Ex. PW2/F according to which Smt. Neelam identified all the three wrist watches correctly. He proved the statements of Inspector Hira Lal regarding identification of the witness as Ex. PW17/B and his certificate on the proceeding as Ex. PW17/C.
23. PW-18 ASI Chet Ram, Finger Prints Expert, PTS, Malviya Nagar inspected the scene of crime. He lifted finger 15 prints from the spot and developed the same. He prepared report Ex. PW18/A.
24. PW-19 Sunita stated that she did not know accused Vinay present in the court. In cross examination by Ld. APP she denied that said accused was tenant in her house or left the same in August 2002. However she admitted that she was owner of House No. E-21/265, Sector 4, Rohini, Delhi.
25. PW-20 HC Parkash Pradhan took both the accused to BSA Hospital on 23.8.2002 for medical examination. He proved the seizure memo of pulanda in respect of samples pertaining to accused Vinay Kumar as Ex. PW20/A and in respect of samples of accused Munish as Ex. PW20/B. On the same night he received pulanda sealed with the seal of doctor for depositing the same with CDFD for DNA test in Hyderabad. Till the pulandas were deposited, they remained intact and were not tampered with. In cross examination by counsel for accused Munish he stated that accused were taken out from lock up at about 4.15 or 4.30 16 PM. He reached Hyderabad on 24.8.2002 in the night. 25.8.2002 was holiday. As such he deposited the pulanda on 26.8.2002.
26. PW-21 Ct. Parmod took pulandas in a box on 1.11.2002 vide road certificate No. 214/21/02 and deposited the same at FSL, Mehrauli. He deposited back copy of road certificate on which receipt was obtained regarding deposit, with MHC(M). Till the pulandas remained in his possession they were not tampered with.
27. PW-22 Ct. Sahab Singh deposed about interrogation of accused Vinay Kumar on 20.8.2002 in the IO room of PS Rohini and proved relevant portion of the disclosure as Ex. PW22/A. He stated that the accused led police to a mobile shop in sector 3, Rohini and produced two watches, (one gents watch and one ladies watch) which were sealed with the seal of KKS and taken into possession vide memo Ex. PW22/B. The accused led them to house of sector 3, Rohini and brought out gloves from almirah which were sealed with the seal of KKS and taken into possession vide 17 memo Ex. PW22/C. He identified the gloves as Ex. PX. When they along with accused Vinay reached Vijay Vihar , a person came towards them and accused Vinay identified said person as his servant Munish. Accused Munish was apprehended. He was interrogated and he also made disclosure. Accused Munish led them to his house at E-44, Vijay Vihar, Phase II and produced gloves lying on a cot. He also produced Rs. 10,000/- and a watch from the almirah of his house. The gloves were sealed with the seal of KKS and taken into possession vide memo Ex. PW22/D. The said gloves were identical to the gloves recovered at the instance of accused Vinay. Watch and cash were sealed with the seal of KKS and taken into possession vide memo Ex. PW22/E. The gloves have been identified as Ex. PX-1 and currency notes as Ex. PX-2. Both the accused pointed out the tent house from where they purchased the rope and the person sitting in the tent house namely mushroof identified the accused persons who had purchased the rope from him vide memo Ex. PW11/A. Both the accused pointed out the hardware shop in Friends Enclave, Sultanpuri as the shop from where they purchased 18 blade and saw (aari) vide memo Ex. PW22/F. Then accused led them to a kabari shop and pointed out the said shop as the place from where they purchased the iron rods vide memo Ex. PW22/G. In cross examination dated 19.2.2007 on behalf of accused Vinay he stated that statements dated 19.8.2002 of PW Narinder Mehta, Neelam Kler, SI Ombir Singh, Ct. Ashok Kumar, ASI Chet Ram, Ct. Balram and Ct. Krishan were in his hand writing. Seizure memo of iron rod, rope and aari blade were also in his hand. Seizure memo of saria, bed sheet, belt and box all dt. 19.8.02 were in his hand writing. Supplementary statement dated 20.8.2002 of PW Narinder Mehta, statement of Roshan Lal, Krishan Murari, Mashroor Ali, Sushil Kumar and his statement, statement of SI Ombir Singh were in his hand writing. Statement of SI Suraj Bhan, HC Prakash Pradhan, seizure memo of EDTA vial of Munish Kumar were in his hand writing. Statement of Ct. Om Parkash, supplementary statement of SI Ombir Singh and SI Manohar Lal Meena, seizure memo of post cards, statement of Dayanand, HC Hari Kishan, Ct. Pramod, Mrs. Sunita, Sunil, Lady Ct. Krista, Narinder Pal were also in 19 his hand writing. Main charge sheet U/s 173 Cr. P.C. and list of witnesses were in his hand writing. Arrest memos were in his hand writing. He denied that IO SI Hira Lal met accused Vinay to do master beson in police station. He admitted that accused Munish Kumar told that he did galat kam with Sarika/sali. In the next breath he stated that accused Vinay told that his servant Munish did galat kam with Sarika. Statement following serial No. 4 of inquest paper of Narinder Kumar was not in his hand writing. Statement of Narinder Mehta forming Sr. No. 1 and 5 were not in his hand writing. He could not say in whose writing the same were. He could not say if the death report was in hand writing of SI Ombir Singh or Inspector Hira Lal. He could not say if the rough notes and site plan were in the hand writing of Inspector Hira Lal.
28. PW-23 HC Hari Kishan, MHC(M) stated that on 19.8.2002 additional SHO, Hira Lal deposited seven pulandas sealed with the seal of KKS along with sample seal and copy of recovery memo which he entered at Sr. No. 2550 in register No. 19. On the same day additional 20 SHO deposited 16 pulandas sealed with the seal of DKS and two pulandas sealed with the seal of KKS which he entered vide entry No. 2551. On 20.8.2002 SI Suraj Bhan deposited two pulandas sealed with the seal of SB and sample seal which he deposited vide entry No. 2560. On 23.8.2002 additional SHO deposited two pulandas sealed with the seal of SB and two sample seal vide entry No. 2564. On 1.11.2002 16 pulandas were sent to FSL, Malviya Nagar through Ct. Pramod Kumar vide road certificate No. 214/21. On 12.4.2005 the said pulandas along with FSL result were received back. On 9.12.2003 the two watches which were part of personal search were delivered on superdari. On 13.12.2002 three watches were handed over to Neelam Kler as per order of court. He proved extract of copies as Ex. PW23/A, copy of road certificate as Ex. PW23/B and receipt as Ex. PW23/C. In cross examination he admitted that as per entry against serial No. 2551 total 18 plastic dibba including 10 plastic dibbies were deposited but the witness volunteered that in fact only 16 plastic dibbas were deposited. 21 29. PW-24 Ct. Kishan took copy of DD No. 23 regarding call of murder and delivered the same to SI Omvir. He accompanied the said Sub-Inspector to the spot. Dead bodies of two children were lying. Goods were lying scattered and almirah was lying open. TV was found lying on upper most stair of first floor. Senior officers reached the spot. He took rukka and returned with copy of FIR. In cross examination he stated that accused Vinay was not present at the spot. Narinder Mehta was present at the spot who reached after 20 minutes of their firstly reaching the spot.
30. PW-25 SI Suraj Bhan stated that on 19.8.2002 he took both the accused to BSA Hospital where they were medically examined. Dr. handed over two pulandas sealed with the seal of SB and one sample seal which he deposited in malkhana. He proved seizure memo of pulanda as Ex. PW25/A.
31. PW-26 Ct. Sushil reached House No. F-24/19, Main Avantika Road, at 6.30 PM on 19.9.2002 during the 22 course of patrolling. Public had gathered and police vehicles and police persons were present. On 20.8.2002 after postmortem the doctor handed over 14 pulandas and two sample seals which he handed over to Inspector Hira Lal vide memo Ex. PW26/A.
32. PW-27 SI Ombir Singh reached the spot and received copy of DD No. 23A. Investigation was marked to additional SHO Inspector Hira Lal who prepared the inquest papers and got the dead body removed to hospital. Iron rod lying in the room was taken into possession vide memo Ex. PW27/A. The empty sweet box of Aggarwal Sweets lying in room adjacent to stairs was taken into possession vide memo Ex. PW27/B. From the roof three ropes, one aari, 4 blades were taken into possession vide memo Ex. PW27/C. Accused Vinay Kumar was arrested vide memo Ex. PW27/D and his personal search was conducted vide memo Ex. PW27/E. He spoke about recovery of gloves worn by the accused person at the time of incident and disclosure of accused Vinay. He corroborated the recovery part deposed by PW-22. He 23 proved arrest memo of accused Manish as Ex. PW27/E and personal search memo as Ex. PW27/F. He proved relevant portion of disclosure of accused Munish as Ex. PW27/G. The pointing out memo of the place of occurrence of incident as Ex. PW27/H. He identified the blades as Ex. P- 1 to P-4, aari as Ex. P-5, iron rod as Ex. P-6, belt as Ex. P- 7 and bed sheet as Ex. P-8. He also identified currency notes as Ex. PX-2 and sweet box as Ex. PX-3. Ropes have been identified as Ex. PX-4 to Ex. PX-6. In cross examination he stated that he remained at the spot till 9.00 PM. The SHO and ACP remained at the spot till 8.30 PM or 8.45 PM. Till SHO and ACP left the spot, no person met police party at the spot, claiming himself to be aware of the facts of the case. No public witness was joined at the time of effecting recoveries at the instance of accused persons. He volunteered that IO asked many persons to join but they refused. He admitted that signatures of Hira Lal on memos Ex. PW22/D and Ex. PW22/E are in different ink. They are different in ink to the memos Ex. PW22/G and Ex. PW22/F. 24
33. PW-27 SI Ombir Singh was recalled to prove the signature of Inspector Hira Lal on memos as Inspector Hira Lal expired by that time. In addition he proved memo Ex. PW27/I, J and K to N. In cross examination he admitted that all the statements U/s 161 Cr. P.C. have been recorded in hand writing of Ct. Sahab Singh.
34. PW-28 Amar Pal Singh, Sr. Scientific Officer, Chemistary from FSL proved the report as Ex. PW28/1. PW- 29 Shri S.P. R. Prasad, Sr. Technical Examiner, CDFD, Hyderabad examined the exhibits i.e. postmortem blood of Sarika, vaginal swab of deceased Sarika, cloths of Sarika with blood sample of accused Vinay Kumar and blood sample of accused Manish Kumar. He stated that the exhibits were subjected to DNA isolation. He proved his report as Ex. PW29/A according to which DNA profile of biological fluid on cloths of Sarika was comparable with DNA profile of source of blood sample of accused Vinay Kumar. But the same did not tally with blood sample of accused Manish. He proved genescan analysis for establishing identity as Ex. PW29/B. In cross 25 examination he admitted that they had forwarded procedure of collection and forwarding of sample for DNA finger printing analysis to investigating agency and on the internet. The procedure is Ex. PW29/DA. . The vials were received in their laboratory on 24.8.2002. There are no signatures/thumb impression of donor or guardian on identification form Ex. PW29/DC and Ex. PW29/DD. The required number of witnesses have not signed the said form. STR method was used for analysing the finger print. At the relevant time the STR method required 13 STR plus one amelogenin to determine the identity of the person. In the present case he used nine STR plus amelogenin. He volunteered that he used Ampflrstr profiler plus kit which was of American Company and requirement of said kit was 9 STR only. He could not produce any literature in support of his version. Literature Ex. PW29/DE was correct. The band in amelogenin is more prominent in lane No. 2 to 4 than in lane No. 1. He could not get DNA in vaginal swan and postmortem blood and that is why he could not detect the same. He denied that if the sample reaches laboratory after 72 hours, chances of 26 contamination are more.
35. In their statements U/s 313 Cr. P.C. the accused persons expressed ignorance about dog squad being taken to the place of incident or finding of dead bodies or dog taking smell and leading to the roof of house in question. They expressed ignorance about the mother of the victims finding dead bodies or her finding three watches missing. They expressed ignorance about mother of the victim giving four post cards Ex. PW2/B to Ex. PW2/E or their seizure by the police. They denied that accused Vinay got cheque for Rs. 10,000/- taken by him from complainant for conversion of house in question from lease hold to free hold, encashed. They expressed ignorance about identification of watches Ex. P-1 to Ex. P-3 in TIP, seizure of belt Ex. P-7 belonging to deceased Bharat and seizure memo of bed sheet. They denied that PWs saw them running out of house in question. They did not know if PW-4 sold blades of aari and aari to two boys or PW-5 sold rod to two boys. They did not know about seizure of the rod or registration of FIR or about postmortem on both the dead bodies. They 27 denied that strangulation mark over neck of Bharat was possible with belt Ex. P-7. However they admitted that Munish was medically examined on 23.8.2002 and his blood sample was taken for DNA on the same day. They did not know about giving of telephonic information at number 100 or about identification of dead bodies. They denied that accused Munish took rope on rent from PW-12. They did not know about filling up of PCR form. Accused Vinay admitted his medical examination and taking of his blood sample for DNA test. They did not know about preparation of scaled site plan or about scene being got photographed or lifting of finger prints, their development and examination. They did not know about sending of pulanda to CDFD, Hyderabad for DNA or sending of pulanda and box in CFSL. Accused Vinay denied having made disclosure or having got watches recovered from his shop or having got gloves recovered from the almirah of his shop. He denied having got his servant/co-accused Munish arrested. Accused Munish denied having gloves recovered from his house or having got cash and watch recovered. Both the accused denied having pointed out the shop of 28 tent house from where they took rope on rent or having pointed out the shop of hardware as place of purchase of blade or aari or having pointed out the place of kabari as place of purchase of two iron rods. They did not know about deposit of case property in malkhana or about seizure of empty sweet box or about seizure of three ropes, one aari and four blades of aari from the roof of the house in question. Accused Munish denied having made disclosure. Both the accused denied having pointed out the place of incident. They expressed ignorance about report of FSL. Regarding DNA they stated that the report is incorrect. According to them PWs are interested witnesses and have deposed falsely. They pleaded innocence. According to them they have been falsely implicated as PW-2 and PW-3 wanted to usurp the house in question. Their signatures were obtained on blank papers. They opted to lead D.E.
36. During arguments it revealed that question about post cards Ex. PW2/B to Ex. PW2/E being in hand writing of accused Vinay, was left in statement U/s 313 Cr. P.C. So supplementary statement was recorded in which he denied 29 that post cards were in his hand writing.
37. The accused persons have actually examined two witnesses in defence. DW-1 Raj Kumar is father of accused Vinay Kumar. He stated that on 19.8.2002 he was present at the shop of accused Vinay Kumar. His wife was also with him. At 5.00 PM. Neelam Kler telephoned him to reach her house. He along with his wife and accused went there at about 5.10 PM. On asking of Neelam Kler he called her family friend Narender Mehta to the spot who reached there at 5.45 PM or 6.00 PM. Accused Vinay was taken by police at about 7.30 PM. He and Narender Mehta went to police station Mangolpuri after mid night and heard noise of cry by his son Vinay Kumar and beating by police. On 20.8.2002 he and his son Vinay Kumar and servant Munish Kumar were produced before Joint Commissioner of Police Shri Ajay Chadha in police station Mangolpuri at about 2.30 PM . He was allowed to leave the police station at 8/9.00 PM. Shyam Sunder Batra @ Shammi and his cousin were also picked up by the police on the night of 19.8.2002. In cross examination he denied that Narender 30 Mehta did not reach the house of Neelam Kler or that he had given a statement to that effect to save his son. He sent telegram to Ld. District Judge and Commissioner of Police but did not pursue the action on said telegram. He did not file any writ in the Hon'bleHigh Court when his complaint was not heard.
38. DW-2 Shyam Sunder Batra stated that he knew accused Vinay Kumar for last 18 years who was his friend and had been studying with him. To start with he deposed about accused Vinay coming to his house on 19.8.2002 at around 10.00 AM, going back and taking lunch together. Then he stated that at around 6.00 PM accused called him on his land-line and informed him regarding murder in his in law house . Within 5/6 minutes he reached the house of in laws of the accused. He accompanied accused with the police. He told the police that accused could not commit offence like the present one as he was not a man of that nature. The police told him that it would call him whenever it required his presence. At about 11.30 PM police brought accused Vinay Kumar to his house. He 31 accompanied them to police station. Police made inquiries from him and recorded answers given by him.
39. I have marshaled the evidence on record and heard the arguments at length. The accused persons have filed written arguments which have been perused. The Ld. APP submitted that PW-3 Narinder Mehta is a witness of last seen. He saw both the accused running out of house in question shortly after the incident. She stated that prosecution has been able to prove the recovery of watches belonging to Neelam Kler which were found missing from her house during the course of incident. Two watches were recovered from accused Vinay Kumar and one watch was recovered from accused Munish. The said watches were duly identified by Neelam Kler in TIP as well as during trial. The recoveries were effected shortly after the commission of offence. Thus there is a presumption that the accused persons committed the offence of murder and that is how the watches came in their possession. The police has been to recover weapon of offence viz the belt used in strangulating one of the victim and the doctor who 32 conducted the postmortem has opined that the marks of strangulating were possible by said belt. She went on to urge that the aari, blade of aari and rope used by the accused persons for entry in the house after cutting the iron jal from the roof of house has also been recovered. Thus the chain of circumstances is complete. Regarding offence of rape on Sarika the Ld. APP relied upon report of DNA according to which the biological fluid present on the cloths of Sarika was a source of exhibits of accused Vinay Kumar but the same was not the source of exhibits of accused Munish. Thus there is scientific evidence to connect the accused Vinay. According to her the scientific evidence is more systematic and more reliable than ocular evidence.
40. On the other hand the counsel for the accused persons submitted that there is no eye witness in the present case. The entire case of the prosecution is based on circumstantial evidence in which the prosecution has to show a complete chain There must be grave, dispassionate analysis of law and fact in such case. Motive is must in 33 such case. In support of his submission he relied upon Balbir Singh Versus State of Punjab 1996 (6) Supreme 534 in which it was held that in case of circumstantial evidence motive is relevant.
41. I have given my careful thought to the arguments advanced by the counsel for the accused and found that motive is a relevant fact but the same is not essential or indispensable requirement. Neither a person can be punished on motive alone nor he can be let off for want of motive. In 2005 (8) Apex Decision Supreme Court 431 it was held that even in the case if circumstantial evidence, absence of motive is immaterial and the conviction was sustained.
42. Apart from the above the prosecution has tried to establish the motive of the accused persons that accused Vinay wanted to usurp the property of Neelam Kler by committing the offence. Accused Vinay Kumar is none else but son in law of Neelam Kler. He committed the murder of remaining two children of Neelam Kler and her third 34 children was the wife of the accused. The said wife would inherit the property on death of Neelam Kler.
43. The counsel for the accused submitted that if the motive of accused Vinay was one tried to be established by the prosecution, accused would have murdered Neelam Kler and not the remaining two children of Neelam Kler. I do not think that the arguments carries any weight. Firstly the accused persons were not sure as to who would become prey of their act. Had Neelam Kler been found in the house she could have also met the same fate which her children met. In the alternative the accused was sure that after elimination of remaining two children there was none else to inherit the property and the obstacle in their way was over. Thirdly murder of Neelam Kler alone would not have served the purpose as remaining two children would also have inherited the property. Thus elimination of remaining two children was must before accused Vinay alone could have inherited the property.
44. The counsel for the accused harped much on 35 investigation being tainted. He submitted that the accused persons have been deprived of their valuable rights to cross examine the IO Inspector Hira Lal as he had expired by the time that he could be examined in trial. The arguments is un-understandable. If a witness dies, his non examination is beyond the control of party. Said case cannot be rebelled as deliberate withholding of a witness and no adverse inference can be raised.
45. Elaborating his arguments of investigation being tainted, the counsel for the accused urged that police did not investigate whose helmet on TV which is visible in photo was and who kept the TV in stairs. He wanted me to hold that the offence was committed by someone else who left his helmet on TV. I am unable to persuade myself with the arguments. No such suggestion has been put to any of the PWs. The argument is in the air. The helmet could have been left by some witness or police official in hurry.
46. The counsel for the accused went on to urge that prosecution has not explained as to why it recorded two 36 statements of each witness of identification of dead body. I think that the same is merely an act of forgetting a thing and recording the statement twice. But the same has not caused any prejudice to the accused.
47. The counsel for the accused drew my attention towards report of Finger Prints Expert Bureau bearing Ex. PW18/A according to which it is a case of double murder during burglary. Thus the intention of the culprit was to commit burglary and not murder. It was a matter of co- incidence that the murder was committed during burglary. The arguments seems to be quite far fetched. The object of inspection by Finger Print Bureau was to collect evidence in the nature of lifting of Finger Prints and not to find out the intention of the accused persons. The counsel for the accused submitted that according to the above report the Finger Print Bureau lifted chance print from almirah lock, dibba (4), sweet steel and developed the same. But PW-27 stated that finger prints were not lifted. To forget is the habit of human. The statement of PW-27 was recorded years after the incident and he might have forgot that the 37 chance prints were lifted.
48. The counsel for the accused strenuously argued that report Ex. PW18/A advised police to send fingers and palm impression slips of inmates, suspects and deceased for comparison with developed chance prints at the earliest. But the same was not done. At the most it is a case of negligence on the part of the IO but justice cannot be allowed to be made casualty in the hand of Investigating Officer.
49. At this juncture reference with advantage may be made to decision in Chhotu Versus State of Maharashtra 1997 Cr. L.J. 4304 in which it was held that remissness to seize the blood stained cloths, failure to examine witness promptly is not to impair statements of witnesses. In AIR 1997 SC 3471 it was held that non sending of blood stained cloths to FSL is not to demolish the case of the prosecution.
50. The counsel for the accused pointed out that in 38 cross examination dated 2.12.2006PW-3 stated that he also went to police station on 19.8.2002. Lateron accused Munish was brought to the police station on 19.8.2002. When he went to police station on 19.8.2002, he came to know that both the accused were arrested. But the matter does not rest here. The witness corrected himself by stating in the next breath that he came to know about arrest on 20.8.2002 in the morning at about 7/8.00 AM. Thus the argument is of no help to the accused.
51. The counsel for the accused pointed out that DW-1 and DW-2 stated that accused Vinay was taken by the police at 7.30 PM on 19.8.2002. Both the said witnesses are interested witnesses in as much as former is father of the accused and the later is friend of the accused for the last 18 years. Their statement cannot be believed on the face of documentary evidence.
52. The counsel for the accused also drew my attention towards arrest memo of accused Vinay which is Ex. PW27/D and arrest memo of accused Munish which is Ex. 39 PW27/E to point out that on the right top of the memos the date is mentioned as 19.8.2002. To me it appears that it is the date of FIR. The date of arrest is mentioned in column No. 6 as 20.8.2002 and below the signature of additional SHO as 20.8.2002. The argument is misleading.
53. The counsel for the accused submitted that recoveries of watches, iron rod, rope, aari, blade is not witnessed by any public witness. So there is violation of section 100 Cr. P. C.. In support of his submission he relied upon Manjit Singh Versus State of Punjab 2002 (3) JCC 1601. I am unable to appreciate the arguments. Section 100 Cr. P.C. applies to searches and not seizure in pursuance of disclosure under section 27 Indian Evidence Act. The recovery in pursuance of disclosure under section 27 Evidence Act stand on different footing. This point was neither argued nor decided in the case cited by the counsel for the accused. In fact the same came up for judicial scrutiny in 1985 Cr. L.J. 1700 and government, State, Government of NCT Versus Sunil 2000 (Supplementary- 3 ) Judgment Today 267 and the 40 recoveries without public witnesses were believed. The counsel for the accused vehemently contended that the proceedings for TIP are useless. The reason being that the same reveals that third sealed pulanda sealed with the seal of PP containing property to be mixed up was having wrist watches of Titian, HMT etc. whereas the case property comprises of watches of Titian, Classic and Kawa. There is no watch of HMT in the case property and so mixing up of said watch was meaningless. I am unable to impress myself with the arguments. No such question was put to PW-17 in cross examination. Moreover the property mixed up was not only of HMT. The word etc. are wide enough to include other make also. It may be high lighted that in case the Ld. MM was not satisfied about the case property matching with the property brought for being mixed up, he would have refused to conduct the TIP. The proceeding reveal that since the property brought for being mixed up did not contain currency notes, the currency notes from case property were removed without being put to TIP.
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54. In addition it may be observed that in AIR 1983 SC 446 and 1998 (4) Apex Decision SC 679 para (12) it was held that ladies have un-canning power of identification. In the case in hand the identification was done by lady witness.
55. The counsel for the accused vigorously argued that in statement dated 19.8.2002 U/s 161 Cr. P.C. Ex. PW3/DA PW-3 Narinder Mehta mentioned that he saw Vinay Kumar and his servant Munish going out of the house fastly. In statement dated 20.8.2002 Ex. PW3/DB the said witness mentioned that he saw both the accused Jate Nikelte fastly. He wanted me to interpret 'Jate' as entering the house. Thus there is contradiction. I am unable to accept the arguments. The word 'Jate' means going out and Nikelte has also the same meaning. The counsel for the accused tried to make much out of the fact that in statement in court PW-3 deposed that he saw both the accused running out of the house. He confronted the witness in cross examination dated 22.12.2006 to make out that in statement Ex. PW3/DA and DB word running 42 was not mentioned. Rather what was mentioned is that the witness saw them walking fastly. The argument is to be mentioned for being rejected only. In 2002 (10) Apex Decision SC 82 it was held that 'ranaway'mean went away. There is not much difference between going fastly and running.
56. The counsel for the accused urged that PW-2 stated that she reached the house at 5.00 PM, fell unconscious for half an hour and then went to PW-9. Thus she must have reached PW-9 after 5.30 PM. But according to PW-9 he telephoned the police at 4/5.00 PM after PW-2 approached him. He wanted to make out that there is discrepancy in time. Similarly PW-3 stated that on 19.8.2002 at about 4.15 PM he was passing from House No. F-24/19, Sector 3, Rohini but PW-24 stated in cross examination that Narinder Mehta reached the spot after 20 minutes of police firstly reaching the spot. The police received the information at 5.20 PM vide DD No. 23A. Police must have reached at about 5.30/5.35 PM. Both the discrepancies are ignorable because it is a matter of common knowledge that 43 witness do tell time by approximation. They do not note the time by watch and remember the same precisely. In taking this view I am fortified by decision in State Versus Meena Kumari 1986 Chandigarh Criminal Case 351 Delhi DB, Rakesh Kumar Versus State 1997 (3) AD Apex Decision Delhi 672 and AIR 2002 SC 50.
57. The counsel for the accused took pains to make out that PW-22 Ct. Sahab Singh admitted in his cross examination that statement of witnesses and most of the other papers are written by him. PW-27 SI Ombir Singh also admitted the said fact at page 3 of his cross examination dated 27.9.2005 and at page 2 of his cross examination dated 13.7.2006. From this he wanted me to infer that the entire investigation has been conducted by Ct. Sahab Singh. The same is not permissible as investigation of murder case has to be done by Inspector. The argument is not at all convincing. There is no requirement in Cr. P. C. that Inspector has to do all the writing in his own hand. There is no bar that he cannot get the papers prepared from other staff. On analogical ground 44 reference may be made to 1997 (5) Apex Decision, Delhi 689 DB para 27 in which it was held that there was nothing wrong if the rukka is in different hand.
58. The counsel for the accused contended that accused Vinay was not a stranger. He is son in law of PW-2 Neelam Kler. He could have knocked the door of the house and entered the house easily. There was no need for him to adopt the mode of reaching the roof of the house secretly, breaking the jal and then enter the house. The arguments appears to be attractive in the first instance. But the same does not hold water when considered in depth. The Ld. APP suitably refuted the arguments by submitting that it was in the hand of the accused to create scene of offence. The accused might have thought it better to have entry secretly so that none may suspect him as having entered the house and committed the offence.
59. One of the bone of argument of the counsel for the accused is that PW-22 stated that statement of Narinder Mehta dated 19.08.2002 was recorded at about 6/7.00 45 PM. Narender Mehta gave three versions. In the first version he stated that he was passing from near the house of Neelam Kler. In second version he stated that he reached the house of Neelam Kler after 8.30 PM on receiving the information from his house. In the third version he stated that at about 6.00 PM he saw crowd near the house of Neelam Kler. I am unable to make much out of it. There is nothing wrong. In the first instance he simply saw the accused persons going out of the house fastly. He ignored the things and went to his house. At 6.00 PM he saw the crowd but did not bother to reach there. Then on receiving information at his house that murders have taken place in the house of Neelam Kler he went there after 8.30 PM. In fact presence of Narinder Mehta has been deposed by DW- 1 also.
60. Similarly there is nothing wrong in Narinder Mehta denying his statement on 19.8.2002. He might have forgotton date of his statement before the police. What to say about a lay man, even a clever person is likely to be confused when he is cross examined unnecessarily on 46 more than one occasion.
61. The counsel for the accused submitted that in his statement PW-27 stated that he remained at the spot till 9.00 PM. In second statement he spoke about whole investigation. I may mention that second time he was called to prove the signature of inspector Hira Lal as Inspector Hira Lal has expired by that time. He simply identify the signature of Inspector Hira Lal. If a man is acquainted with the hand writing of a person, he could identify his hand writing on papers put on different occasion and different dates.
62. The counsel for the accused urged that in case PW Narender Mehta is taken to be partly reliable, corroboration becomes must. I am at a loss to appreciate the arguments. There is no statutory rule of corroboration. Corroboration is insisted only as a matter of prudence. If corroboration is not possible, the same cannot be made a condition precedent for believing a statement.
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63. The counsel for the accused amply argued that as per seizure memo Ex. PW25/A DNA sample was taken on 20.8.2002. As per MLC DNA was again taken on 23.8.2002. Prosecution has failed to explain as to why need arose for two DNA samples. I am unable to understand the arguments. No prejudice has been caused to the accused by taking DNA sample twice. It is just possible that first sample might have been misplaced or might not have been sent to Hyderabad in time. The police did not want to take a chance so it got the samples taken again.
64. The counsel for the accused pointed out that the MLC Ex. PW14/A shows that the DNA sample was taken at 4.00 PM. On 23.8.2002 the accused has already been produced in court at 2.00 PM and remanded to judicial custody. After that he could not have been kept in police custody and taken to hospital. The argument is in the air. Generally the accused are produced for remand in court at 2.00 PM. But that does not mean that the accused cannot be produced before that or after that. His police remand was till 23.08.2002 and the same mean that he 48 could have been kept by police till 12.00 night of 23.8.2002. He might have been produced in court after 4.00 PM and then remanded to judicial custody.
65. The counsel for the accused submitted that according to PW-25 on 19.08.2002 additional SHO deposited 18 pulandas sealed with the seal of DKS and two pulandas sealed with seal of KKS vide entry No. 2551. The witness volunteered that in fact only 16 pulandas were deposited in malkhana. To my mind the accused cannot derive any benefit out of same unless they are able to point out as to which two dibbas were missing and why.
66. The counsel for the accused submitted that nowhere it has come in the statement of PW that seal after use was given to third person. In support of his submission he relied upon Manpreet Singh Versus State 2004 (1) JCC
1. I have given my careful thought to the matter and my discerning eyes have failed to find any provision in the Cr. P. C. which obliges a police officer to hand over his seal to 49 a third person. In 137 (2007) DLT 500 it was held that police officer is required to use his seal day in and day out. He cannot be expected to get number of seals prepared for use on different occasions. If he is expected to hand over his seal to a third person he would not able to use the same for investigation of the other case.
67. The counsel for the accused did not mis to argue that the aari, blade and rope were not sent to FSL for opinion and were not produced before the Doctor for opinion. The Ld. APP refuted the arguments by submitting that they were not used for causing death. They were simply meant to cut the jal and enter the house. The weapon used for strangulation was school belt which was produced before the Doctor conducting the postmortem and the Doctor opined that mark of strangulation was possible by said belt. That is enough.
68. The counsel for the accused emphasised much on the fact that according to PW-20 the DNA sample was deposited in CDFD, Hyderabad on 26.8.2002. According 50 to literature Ex. PW29/DA 72 hours is the time for depositing the sample. Thus the sample taken on 23.8.2002 must have putrefied till 26.8.2002. The argument is not impressive. Firstly PW-20 stated that he received the pulanda from MHC(M) at about 1/1.30 AM. He left the police station at about 4.30 AM, he had gone to Hyderabad by Air. He reached Hyderabad on 24.8.2002 in night, 25.8.2002 was holiday, as such he deposited the pulandas on 26.8.2002. I am unable to understand as to what more could have been done. The pulandas were dispatched on the same day. The messenger went by Air. If the intervening day happens to be holiday, every one is helpless. Secondly PW-29 stated in cross examination that vials were received in laboratory on 24.8.2002 but his chief gave the acknowledgment on 26.8.2002. This tellies with version of PW-20 . Once a sample is kept in proper atmosphere in laboratory, the chances of putrefying are minimum. The formal acknowledgment could have been given on reopening day. Apart from this it was held in 1996 Cr. L.J. 822 DB that if delay in sending sample is explained it is not fatal. In 1979 (4) SCC 746 it was held 51 that if a laboratory found sample fit, no benefit of delay to accused. In the instant case laboratory found sample fit, conducted a test and gave the report. The matter is over.
69. The counsel for the accused submitted that according to Ex. PW29/DB requirement was of analysis as per 13 codis but according to PW-29 analysis was done on 9 codes. The arguments appears to be misconceived. PW-29 explained that he used 9 STR plus amelogenin. He volunteered that he used ampflrstr profiler plus kit which was of American company and requirement in said kit was 9 STR only. The expert was said witness and court is not the expert to peep into the knowledge or intelligence of the expert. In fact the decision in Sunder Lal Versus State AIR 1957 SC 580 and Bhagwan Verus State of Rajasthan referred to by the counsel for the accused at page 5 of his written arguments ( copies not supplied ). It was held that expert opinion of a witness can be set-aside by a court only if the expert has been contradicted by making reference to some literature/book which has been relied by the expert. In the case in hand the expert has 52 not relied upon any literature or book. Thus in a way the authorities go against the accused instead of helping them.
70. The counsel for accused filed copy of decision in Ajay Versus State 2007 (1) CCC 21 to place reliance on State of Haryana Versus Jagbir Singh ( 2003) 11 SCC 261 and Shard Birdhi Chand Sarda Verus State of Maharashtra ( 1984) 4 SCC 116 which have been referred to in that authority. This is a new method of relying upon precedent which is unknown .
71. Reliance on Harjit Singh Versus State 2002 (3) JCC 1601 to make out that common intention can be inferred objectively from his conduct displayed in the course of commission of crime, is mis placed. The present case is case of criminal conspiracy and not common intention.
72. I am conscious of the fact that charge has been framed U/s 120-B IPC and 449/34 IPC and 302/34 IPC. 53 But once charge for offence U/s 120-B IPC has been framed, subsequent reference to section 34 IPC is simply a mistake which has not caused any prejudice to the accused. The same is merely an irregularity. The accused knew well from day one from the report U/s 173 Cr. P.C. as well as charge that they were facing trial U/s 120-B, 449/120-B, 302/120-B IPC. On analogical ground reliance may be placed on 2003 (1) Apex Decision SC 239 in which it was held that if charge is framed with the aid of section 149 IPC, conviction can be done with the aid of section 34 IPC. In 2002 (9) Judgment Today 334 it was held that even if section 34 IPC is not mentioned in charge, still accused can be convicted with the aid of section 34 IPC.
73. Before parting with the record of the case it will be useful to mention that in 1995 SCC (criminal) 502, 2001 (5) Apex Decision SC 78, 2004 (2) Apex Decision 242 and 2005 (2) Apex Decision SC 675 it was held that recovery of looted property gives rise to presumption of murder.
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74. In AIR 1975 SC 241 it was held that benefit of doubt is not to be given lightly. Proof beyond reasonable doubt cannot be distorted into doctrine of acquittals on filmsy possibilities which are not infrequently set-aside by High Courts weakening the credibility of judicature. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences flowing from the evidence circumstantial or direct. The duty of the court is very onerous. It has to separate the chaff from the grain.
75. It is needless to mention that there can be no direct evidence of conspiracy. Conspiracy is always hatched in darkness. It has to be inferred from the conduct of the accused. In the present case the act of the accused persons going together to the shop of kabari, hardware for purchasing rope, aari, blade of aari, act of entering the house together in a secret manner, act of going out of the house together, recovery of part of looted property from one 55 accused and recovery of remaining property from other accused speaks volumes about the conspiracy between the two.
76. It is useful to mention here that accused persons have opened all fronts of defence. They suggested to PW- 2 that accused Vinay never harassed daughter of PW-2 ( wife of said accused) because of money. They suggested that PW-2 pressurised her daughter Monica to file petition for divorce against accused Vinay. They suggested that accused Vinay had been falsely implicated so that House No. F-24/19 can be usurped. The house belonged to PW-2 and there was no occasion for her to usurp the same. It is not the case of the accused that house belonged to him or that PW-2 wanted to usurp the same. To PW-3 they suggested that he has falsely implicated the accused persons in order to grab the property No. F-24/19. Now it is not clear as to whether PW-2 wanted to usurp the property or whether PW-3 wanted to grab the property. Not only this they suggested to PW-3 that he had illicit relation with Neelam Kler and because of that reason 56 husband of Neelam Kler started indulging in drinking and ultimately died. The accused asked PW-3 that he had dispute with accused Vinay with regard to property transactions. He put to PW-3 that PW-3 was stock witness of police but did not cite even single instance in which PW- 3 appeared as witness for police. The defence of the accused persons has not been consistent from beginning.
77. Denial by accused Vinay Kumar in his supplementary statement under section 313 Cr. P.C. that letters Ex. PW2/B to Ex. PW2/E are in his hand writing is an after thought. He did not dispute this fact in the cross examination of PW-2 despite the fact that she had unequivocally deposed that the letters were in the hand writing of accused Vinay Kumar. The letters admit in clear terms that accused committed the crime in question. The same leaves no scope for urging that the accused is innocent.
78. As a upshot of the above discussion I have no hesitation in concluding that the prosecution has proved 57 its case beyond reasonable doubt. Accused Vinay Kumar is convicted U/s 120-B IPC, 449/120-B IPC, 376 IPC and 302/120-B IPC. Accused Manish Kumar is convicted U/s 120-B IPC, 449/120-B IPC and 302/120-B IPC.
Announced in the Open Court (O.P.GUPTA)
On 07.09.2007 ASJ/ROHINI COURTS
DELHI.
58
IN THE COURT OF SH. O.P.GUPTA, ASJ/ROHINI COURTS, DELHI SC No. 466/2006 State Versus
1. Vinay Kumar @ Samarto S/o Raj Kumar R/o E-21/265, Sector 3, Rohini, Delhi.
3. Munish Kumar @ Munesh S/o Panna Lal R/o E-44, Vijay Nagar, Phase II, Delhi.
FIR No. 528/02 U/s 302/449/376/411 IPC PS Rohini ORDER ON SENTENCE
1. The accused Vinay has been convicted under section 120-B IPC, 449/120-B IPC, 376 IPC and 302/120- B IPC and accused Manish Kumar has been convicted under section 120-B IPC, 449/120-B IPC and 302/120-B IPC vide separate judgment passed today. I have heard 59 them on the quantum of sentence. At the very outset it may be mentioned section 309 Cr. P.C. enjoins upon the court to pass the sentence order on the same day and no adjournment is called far. Similar view was taken in 2001(5) Apex Decision SC 45 and 2003 (6) Apex Decision SC 57.
2. The Ld. Addl. Public Prosecutor for the State submitted that it is a case of double murder with rape. The accused committed murder of none else but his own Sala and Sali. It was a cold blooded murder in a preplanned manner in as much as the accused persons were making preparation for commission of offence since few days before the incident. The sentence must have a deterant effect so that it is a lesson for others not to indulge in such type of henious crime. So she requested for maximum sentence of death.
3. On the other hand the counsel for the accused submitted that accused persons were young boys aged 28 years and 20 years respectively. There is no other 60 involvement of the accused persons. He submitted that in Bachan Singh Versus State the Hon'bleSupreme Court held that death sentence is to be awarded in rarest of rare case. In later decision it was held that death penalty is justified only when the accused is a menace to the society and there is no possibility of his being reformed. So he requested for a lenient view.
4. Having considered the rival submission I find that present case is not one which can be termed as rarest of rare case. The accused Vinay Kumar is sentenced to rigorous imprisonment for 10 years and fine of Rs. 2,000/- in default rigorous imprisonment for two months for offence U/s 120-B IPC, rigorous imprisonment for 10 years and fine of Rs. 2,000/- in default two months rigorous imprisonment for offence U/s 449/120-B IPC, imprisonment for life and fine of Rs. 2,000/- in default rigorous imprisonment for two months for offence under section 376 IPC and imprisonment for life and fine of Rs. 2,000/- in default rigorous imprisonment for two months for offence under section 302/120-B IPC. Accused Munish 61 Kumar is sentenced to rigorous imprisonment for 10 years and fine of Rs. 2,000/- in default rigorous imprisonment for two months for offence under section 120-B IPC, rigorous imprisonment for ten years and fine of Rs. 2000/- in default rigorous imprisonment for two months for offence under section 449/120-B IPC and imprisonment for life and fine of Rs. 2,000/- in default rigorous imprisonment for two months for offence under section 302/120-B IPC. All the substantive sentences shall run concurrently. Period of detention during investigation and trial be set off as provided by section 428 Cr. P.C.. Both the convicts are in custody since the date of their arrest on 20.08.2002 till date.
Announced in the Open Court (O.P.GUPTA)
On 07.09.2007 ASJ/ROHINI COURTS
DELHI.