Delhi District Court
State vs Hardayal Singh on 24 December, 2010
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI
S.C No.88/2010
State Versus Hardayal Singh
S/o Surjit Singh
R/o 5C/77, Khui Wali Gali
Vishnu Garden,
New Delhi.
FIR NO 835/2006
P.S Tilak Nagar
Under Sections 363/302/201 IPC.
Date of Institution 06.02.2007
Date when arguments 20.12.2010
were heard
Date of Judgment: 22.12.2010
JUDGMENT
1. The SHO of P.S: Tilak Nagar has challaned the accused to face trial for the offences U/s 363/302/201 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution State Vs. Hardayal Singh 2 case to the accused by complying with provisions of Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C.
BRIEF FACTS OF THE CASE
2. The prosecution case is that on 08.01.2006, one Mrs Babli wife of accused Hardayal Singh came to the Police Post and gave statement that she is a housewife. Her first marriage was solemnized with one Gurdev Singh of Lalu Bal, Gurdaspur, Punjab seven years ago. She has one son named Monu aged 4 years from the first marriage. After divorce from the first husband, she got married with Hardayal Singh S/o Surjit Singh on 25.06.2006 in Patel Nagar Gurdwara, Punjabi Basti. She came to her new matrimonial home along with her son Monu @ Gurpreet with the consent of her husband Hardayal Singh and started living with him at H.No. 59 Vishnu Garden, Delhi. Her husband Hardayal Singh was not happy with her keeping her son Monu @ Gurpreet with her. He used to beat him and used to turn him out of the room and used to quarrel with her. He used to rebuke her as to why she has brought the child with her and he used to advise her to send the child to her parents. On this, complainant Babli used to say that the child is her's and she would keep him with her.
On 06.11.2006 at about 6.30 p.m, her husband Hardayal State Vs. Hardayal Singh 3 Singh took the child Monu @ Gurpreet Singh on his two wheeler scooter no. DL4S1224 for a ride and returned at about 7.00 p.m. On his return, she asked that Montu @ Gurpreet was also with him and where he is? Her husband Hardayal informed that after the ride on scooter he left him in the gali. The search of the child was made. Then, she and her husband went to P.P Khayala and lodged DD no. 15 dated 7.11.2006 regading missing of the child. On inquiry by her she was told by one woman Veeru that her child Monu @ Gurpreet Singh was taken by her husband Hardayal Singh. She (complainant) suspected that her child Monu @Gurpreet Singh was made to disappear by her husband.
On this report of the complainant, the case FIR was registered under Section 363 IPC and investigation was handed over to ASI Subh Ram. During investigation, ASI Subh Ram conducted the proceeding for W.T. Message all SSP's in India and all SHOs in Delhi flashed but the child could not be traced. On suspicion, the husband of complainant Gurdayal Singh was arrested after there was incriminating material against him. He during the investigation gave disclosure statement that he used to hate the child because he was from the first husband of his wife complainant Babli and he had thrown the child in the Najafgarh drain. On this disclosure statement, the accused took the police party to the place of incident and at his instance dead body of deceased Monu @ Gurpreet Singh aged 4 years was taken from the State Vs. Hardayal Singh 4 Najafgarh drain. The dead body was identified by his mother and maternal grand father. The dead body was photographed at the spot and crime team came to the spot and inspected the spot. The dead body was sent to mortuary of DDU hospital for postmortem. Sections 302/201 IPC were added to the FIR. During investigation, the IO Inspector got the postmortem on the dead body done, recorded the statement of witnesses. The dead body was returned to legal heirs of deceased. The scooter DL4S1224 was seized and deposited in malkhana. Scaled site plan was got prepared. The statement of witnesses were recorded and on completion of investigation, the accused was challaned as referred above. CHARGE AND PLEA OF ACCUSED:
3. The prima facie case for the offences under Sections 364/302/201 IPC was found to be made out against the accused Montu Yadav, so he was charged accordingly on 23.04.2007 to which charges he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 19 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
5. PW1 is Sukhwant Singh. He stated that his daughter Babli got married to one Gurdev Singh about 8 years ago and from their wedlock one son Monu was born. Thereafter, her daughter got divorce from her husband Gurdev Singh and got married to accused Hardyal Singh. After the marriage, her daughter along with her son Monu started living with accused Hardayal, as the accused had consented to the same. At that time, Monu was 4 years old.
This witness further stated that on 06.11.2006, Monu was found missing from the house. Accused Hardayal informed him about this fact on telephone at about 7.00 or 7.30 p.m on 06.11.2006. He went to the house of his daughter Babli and a missing report was lodged at police post Khayala by accused Hardayal. Accused along with him and his daughter searched for Monu for about three days. One neighbourer told to his daughter Babli that she had seen Monu going with accused Hardayal on scooter on 06.11.2006 towards the direction of the Nala, Chander Vihar. Thereafter, on 09.11.2006 in the presence of police officials, accused Hardayal Singh confessed that he had thrown Monu in the nala on Chander Vihar road in front of Vikas Puri on 06.11.2006. Disclosure statement of accused is proved by the witness as Ex PW 1/A. Accused Hardayal confessed that he could get the dead body recovered from the nala and he took them to nala. The pointing out memo is proved State Vs. Hardayal Singh 6 as Ex PW 1/B. This witness further stated that search was conducted for the dead body of Monu in the nala and his dead body was found floating in the nala. Fire brigade and divers were called at the nala and the dead body of Monu was taken from that nala, which was identified by him (PW1) and his daughter. The recovery memo of the dead body of Monu is proved as Ex PW 1/C. Thereafter the dead body of Monu was taken to DDU hospital for postmortem and after the postmortem the dead body was handed over to him and his daughter. Identification statements of dead body is proved as Ex PW 1/D. During investigation, he handed over the photocopy of birth certificate of Monu and photocopy of certified copy of divorce by mutual consent of his daughter Babli with her first husband Gurdev Singh which were taken by the IO vide memo Ex PW 1/E. The photocopy of birth certificate of Monu and certified copy of divorce order are proved as Ex PW 1/F and Ex PW 1/G respectively. This witness has also identified one boy pant of black colour and one T shirt of blue colour which his grandson Monu @ Gurpreet was wearing at the time of incident as Ex P1 and Ex P2 respectively.
6. PW2 is Smt. Beero. She stated that on 06.11.2006 at about 6.15 p.m, she was standing in gali in front of her house. Accused Hardayal Singh is known to her as he is residing in the next gali near their house. At about 6.15 p.m as mentioned above, she saw accused State Vs. Hardayal Singh 7 Hardayal Singh passing through that gali in front of her on a scooter and one small child was sitting on the pillion seat of the scooter. In the same night, Babli, mother of the child and wife of accused met her. She (Babli) was searching her child. She (PW2) told her that she had seen accused Hadayal Singh going with the child on a scooter on the above mentioned date and time. Police recorded her statement on 08.11.2006 in this regard. In the leading question put to this witness by Ld Additional Public Prosecutor, this witness stated that she had stated in her statement the name of the child as Monu @ Gurpreet Singh as the same was told to her by the mother of the child when she met her.
7. PW3 is Smt. Babli who is mother of the deceased child. She corroborated with the statement of PW1 Sukhwant Singh with regard to her divorce, birth of her son and remarriage. She also stated that with the consent of her husband Hardayal Singh, she brought her son Monu with her at the house of accused and started residing at H.No. 5 C/77, Vishnu Garden, Delhi. The accused was not happy with her son as he did not want to keep her son Monu with her at his house. Accused usually gave beating to Monu and also used to throw him out on many occasions from his house. He also used to ask her as to why she brought Monu with her at his house. He was insisting to send back Monu to the house of her parents but she wants to keep Monu with her as he (Monu) State Vs. Hardayal Singh 8 is her son. Thereafter, on 06.11.2006 at about 6.30 p.m, her husband Hardayal took her son Monu with him on his scooter No. DL4S1224 on the pretext of a ride on the scooter (jhulla dena ke bahane). He came back at her house on scooter alone at about 7.00 p.m. She asked him as to where he left Monu, to which he (accused) replied that he left Monu in the gali after taking a ride on the scooter. Thereafter she along with the accused searched for Monu but did not find him. On the next day i.e on 07.11.2006 her husband lodged a missing report at P.P Khayala vide DD No.15. She personally inquired from the persons of the neighbourhood and one Smt. Beero who was residing in the gali situated at the back side of her house told her that she (Smt. Beero) also saw accused taking her son Monu on scooter on the above mentioned time and date. Thereafter, on strong suspicion that accused has made her son to disappear (lapata kar diya hai), she lodged a report with the police. The police recorded her statement which is proved as Ex PW 3/A. This witness further stated that on 09.11.2006, she joined the investigation with the police in this case. She corroborated with the statement of PW1 Sukhwant Singh with regard to disclosure statement of accused and recovery of dead body. PW3 further stated that the accused was arrested from house on 09.11.2006 and his personal search was also taken. Police recorded her statement on 09.11.2006. This witness has also identified one boy pant of black colour and one T shirt State Vs. Hardayal Singh 9 of blue colour which her son Monu @ Gurpreet was wearing at the time of incident as Ex P1 and Ex P2 respectively. She also identified the scooter bearing no. DL4S1224 as Ex P3, on which the accused took her son on 06.11.2006 from the house.
8. PW4 is HC Brijesh Kumar who was working as duty officer on 08.11.2006. He proved the carbon copy of FIR as well as the endorsements regarding registration of the present case as Ex PW 4/A and Ex PW 4/B respectively.
9. PW5 is Constable Om Parkash. He stated that on 07.11.2006 he was working as DD writer from 8.00 a.m to 8.00 p.m. At about 2.10 pm, accused Hardayal came to the DO (duty officer) Room and informed about the missing of his son Monu aged about four years. He lodged missing report and reduced the same into writing vide DD No. 15 which is proved by him as Ex PW 5/A. Thereafter, the copy of missing report was handed over to ASI Subh Ram for further necessary action.
10. PW6 is SI Vijender Singh. He stated that on 09.11.2006 he was posted as Chowki Incharge, Police Post Khayala. On that day, he joined ASI Shubh Ram along with staff in the investigation of the case.
State Vs. Hardayal Singh 10 They went at H.No. 5C/77, Khoye Wali Gali,Vishnu Garden, Delhi where accused Hardayal Singh, his wife Babli and her father Sukhwant Singh met them. ASI interrogated the accused, who confessed his guilt. The accused was then arrested vide arrest memo Ex PW 6/A and his personal search was also conducted vide memo Ex PW 6/B . Thereafter accused gave disclosure statement which is proved as EX PW 1/A and disclosed that he can get recovered the body of Monu from Najafgarh Nala and can also point out the said place. The accused then took the police party at Nala Najafgarh and pointed out the place where he had thrown Monu. The pointing out memo Ex PW 1/B was prepared at the instance of the accused. He then got recovered the body of Monu from Najafgarh Nala at a distance of 300 meters from the place where he had thrown him. The body was brought out with the help of a diver Vijay and the personnels of fire brigade. The body was seized vide memo Ex PW 1/C. ASI called the crime team and photographer at the spot. Thereafter ASI sent the body to mortuary and recorded his (PW6) statement. The body was identified at the spot itself by Smt. Babli and Sukhwant Singh. This witness has also identified black pant and blue T shirt as Ex P1 and Ex P2 respectively.
11. PW7 is Constable Satish Kumar. He corroborated with the statement of PW6 SI Vijender Singh with regard to disclosure statement State Vs. Hardayal Singh 11 of accused and recovery of dead body. He stated that the body was identified by Smt. Babli mother and Sh. Sukhwant Singh, maternal grandfather of the boy. The seizure memo of the body is proved as Ex PW 1/C. The body was sent to DDU hospital for postmortem and after postmortem, the dead body was handed over to the mother and Nana (maternal grandfather) of the deceased boy. The doctor handed over the clothes of the deceased in a polythene bag which was sealed with the seal of DDU hospital mortuary DFMT and an envelope having blood gauze of the deceased to him which he handed over to the IO Inspector Pratap Singh which was seized vide memo Ex PW 7/A. IO Inspector Pratap Singh seized scooter no. DL4S1224 from accused Hardayal Singh vide memo Ex PW 7/B. Accused was arrested and his personal search was conducted vide memos Ex PW 6/A and Ex PW 6/B respectively. This witness has also identified black pant and blue T shirt as Ex P1 and Ex P2 respectively.
12. PW8 is Constable Raj Kumar. He stated that on 09.11.2006 on receipt of call from the control room, he along with Incharge Crime Team Lalit Kumar and HC Surender reached the spot i.e Najafgarh Drain, Ganda Nala, Water Treatment Plant, Keshav Puram and took the photographs regarding the dead body of a child taken out from the nala. He took seven photographs. The positives of the same are proved as Ex State Vs. Hardayal Singh 12 PW 8/A1 to Ex PW 8/A7 and the negatives of the photographs are proved as Ex PW 8/A8 to Ex PW 8/A14 respectively by him.
13. PW9 is Dr. Anil Shandil, Lecturer, LLRM Medical College, Meerut. He deposed that on 10.11.2006 he was posted as Senior Resident, DDU hospital and had conducted postmortem examination on the body of victim Monu @ Gurpreet. The deceased was wearing T Shirt and trouser. Body and clothes smeared with mud. Body in putrefactive stage with greenish black discolouration and peeling off skin with distended abdomen scrotum, penis, swollen bloated face discoloured with putrefaction. The body was foul smelling with blood tinged putrefactive fluid issuing from nostrils mouth. The eyes of the body was closed. The following injuries were seen during postmortem examination:
i) Deformity of nose with fracture of underlying bone with localized haemotoma at fractured site.
ii) Fracture of mandible with loosening of teeth central and lateral incisor tooth both jaws with laceration inner mucosal aspect of gums and buccal mucuse with localized blood and clots.
iii) Both lips contused with effusion of dark reddish blood and clots underneath on incision.
Head: Sub scalp extravasation of clotted blood, dark reddish in colour over occipital aspect. Brain matter shrunken congested with petechials in State Vs. Hardayal Singh 13 bilateral cerebral matter.
Neck: Frothy Secretion with rusty colour to serosanguinous discharge. Chest: Bilateral lungs shrunken, congested. On cut section dark frothy blood exudate. Heart full of dark fluidy blood, all coronaries patent. Musculature and valves NAD.
Abdomen: Stomach containing identifiable Chawal. Mucosa NAD abnormal smell Nil. All abdominal visceras shrunken and congested.
Clothes of deceased and blood in gauze piece preserved sealed and handed over to concerned police official. Opinion: Cause of death is Asphyxia resulting from antemortem closure of external air passage nose, mouth which was sufficient to cause death in ordinary course of nature and subsequent submersion/throwing of body in canal/drain. Time since death approximately about three and a half to four days. The detailed postmortem report is proved by this witness as Ex PW 9/A.
14. PW10 is SI Mahesh Kumar. He deposed that on 26.12.2006 at the request of Inspector Pratap Singh, he along with IO visited the place of occurrence i.e Najafgarh drain and a link nala. There, at the instance of ASI Shubh Ram, he took rough notes and measurements of the spot, on the basis of which he prepared the scaled site plan which is State Vs. Hardayal Singh 14 proved by him as Ex PW 10/A.
15. PW11 is Daman Kumar. He stated that he is running a photo studio. He went to DDU hospital mortuary and took photographs at the time of postmortem of the deceased and handed over the prints to the IO. He also handed over the negatives at police chowki Khayala. The photographs are proved by him as Ex PW 11/1 to Ex PW 11/15 respectively. In the leading question put to this witness by Ld Additional Public Prosecutor, this witness stated that he had taken the photographs on 10.11.2006 and the name of deceased was Gurpreet @ Monu.
16. PW12 is Constable Harjinder Singh. He deposed that on 27.12.2006 at the directions of MHC(M) he took three sealed pulandas and deposited them at CFSL, Kolkatta vide RC No. 320/21. Thereafter he handed over the receipt to the MHC(M). He further stated that as long as the sealed pulandas remained in his custody, no one interfered or tampered with the same.
17. PW13 is Constable Satbir Singh. He deposed that on 08.11.2006 he was posted at Police Post Khayala. On that day, ASI Subh Ram recorded statement of complainant Smt. Babli at Police Chowki and prepared the rukka. He was sent with the rukka to the Police Station.
State Vs. Hardayal Singh 15 After registration of FIR, he returned back at the police chowki and handed over the copy of FIR and rukka to the IO. Then he along with IO and complainant reached at H.No 5C40, Vishnu Garden where the complainant pointed out a lady by the name Smt. Beero and told that she had seen her husband Hardayal Singh taking away her son Monu on scooter no. DL4S1224 on 06.11.2006 at 6.30 p.m. SI then made inquiries from Smt. Beero and recorded her statement under Section 161 Cr.P.C. Thereafter, he along with IO and complainant went at H.No 5C77, Khuiwali gali, Vishnu Garden, Delhi where Makhan Singh, brother of Hardyal Singh met them. On inquiry about Hardyal Singh, he (Makhan Singh) informed that Hardyal had gone out of the house for some work. They, then came back to the police chowki. IO recorded the statement of Babli under Section 161 Cr.P.C. His (PW13) statement was also recorded under Section 161 Cr.P.C.
18. PW14 is Retired Sub Officer, Fire Brigade, Shri Kishan. He deposed that on 09.11.2006 he was posted as Sub Officer with Fire Brigade and on receipt of a call through Fire Control, he along with staff reached at Najafgarh drain in Government Vehicle, opposite Kesho Pur Depot. Police was standing at the spot. One Sikh person by the name Hardyal Singh was also present in the custody of police. This witness further stated that he with the help of a diver Vijay brought out a body State Vs. Hardayal Singh 16 from the drain. The body was wearing a blue colour TShirt and a black colour pant. He handed over the body to ASI Shubh Ram. Nana of the deceased was present at the spot who identified the body as that of Monu aged about 4 years.
19. PW15 is Inspector Lalit Kumar. He deposed that on 09.11.2006 he was posted as Incharge, Mobile Crime Team and received an information from West District Control Room about recovery of a dead body from Najafgarh Drain near Kesho Pur Depot. He along with his staff reached the spot. He inspected the spot and prepared inspection report which is proved by him as Ex PW 15/A. He handed over the said report to the IO of the case.
20. PW16 is HC Surender. He deposed that on 09.11.2006 he was posted at Mobile Crime Team, West District as Finger Print Proficient. On that day, he along with Incharge Crime Team SI Lalit Kumar and Constable Raj Kumar, photographer reached Ganda Nala in front of Water Treatment Plant, Vikas Puri. The spot was inspected and one dead body was found in ganda nala which was identified as Monu @ Gurpreet Singh. The dead body was identified by his mother Babli and maternal grandfather. The crime team report was prepared which is proved as Ex PW 15/A. No chance print was found at the spot.
21. PW17 is HC Ajay Pal. He stated that on 10.11.2006, he was posted at P.S Tilak Nagar as MHCM. On that day, Inspector Pratap Singh deposited one scooter no. DL4SS1224 and one plastic polythene sealed with the seal of DDU hospital mortuary DFMT, one envelope also sealed with the seal of DDU hospital mortuary DFMT along with sample seal in which respect an entry was made at serial No. 5550 in register No.19, the copy of the same is proved by him as Ex PW 17/A. This witness further stated that on 27.12.2006, two sealed pulandas sealed with the seal of DFMT along with sample seal along with FSL form were sent to CFSL Kolkata vide RC No. 320/21 through Constable Harjinder Singh who on return, handed over the receipt to him. The road certificate register and the receipt are proved by him as Ex PW 17/B and Ex PW 17/C respectively. The exhibits had not been tampered with as long as they remained in his custody.
22. PW18 is ASI Subh Ram. He deposed that on 07.11.2006, he was posted at P.P Khayala P.S Tilak Nagar. On that day, accused Hardayal Singh along with his wife Babli visited police post Khayala and got lodged a missing report regarding missing of Monu @ Gurpreet Singh. The same was recorded vide DD No. 15 which is proved as Ex PW 18/A and the same was handed over to him. On 08.11.2006, wife of State Vs. Hardayal Singh 18 accused Smt. Babli came to the police post and got her statement recorded which is proved as Ex PW 3/A, she raised suspicion regarding her husband i.e accused. He made endorsement on the statement which is proved by him as Ex PW 18/B and handed over the same to Constable Satbir Singh who went to the police station and got the present case registered. On return Constable Satbir Singh, handed over the copy of FIR and original endorsement to him. He flashed on the wireless message to all SSPs in India and all SHOs in Delhi. He also informed to Missing Persons Squad. Accused could not meet him on 08.11.2006. This witness corroborated with the statement of PW6 SI Vijender Singh with regard to confession of accused, disclosure, arrest and personal search of accused and also recovery of dead body. It is stated by this witness that he prepared the site plan of the place of recovery of dead body which is proved by him as Ex PW 18/C. The dead body was shifted to DDU hospital Mortuary through Constable Satish. He gave information to the police officials at PS Tilak Nagar and thereafter Sections 302/201 IPC were added in the case. Inspector Pratap Singh reached the spot and further investigation was handed over to him.
23. PW19 is Inspector Pratap Singh. He deposed that on 10.11.2006, he was posted as Additional SHO P.S Tilak Nagar and investigation of this case was handed over to him. He went to DDU State Vs. Hardayal Singh 19 hospital where Constable Satish, Babli mother of deceased and father of Babli Sukhwant Singh met him. Dead body of deceased boy Monu @ Gurpreet Singh was already preserved in mortuary. Babli and Sukhwant Singh identified the body. He recorded their statement regarding identification of the dead body vide Ex PW 1/D of Sukhwant Singh and vide Ex PW 19/A of Babli. He prepared Form 25 35 1 B vide Ex PW 19/B and moved an application to conduct postmortem vide Ex PW 19/C and one separate application to conduct postmortem vide Ex PW 19/D. The postmortem was got conducted and body was handed over to Babli and Sukhwant after postmortem. Constable Satish handed over to him one polythene pulanda containing clothes of deceased and one sealed envelope containing blood gauze and one sample seal with the seal of DFMT DDU hospital which he took into possession vide memo Ex PW 7/A. Thereafter he returned to police station and case property was deposited in malkhana. Accused Hardayal led the police party to his house at 5 CC/77, Kui wali Gali, Vishnu Garden where he got recovered one scooter no. DL4SS1224 make Bajaj Chetak which he took into possession vide memo Ex PW 7/B. He came back to the police station. The scooter was deposited in malkhana. Accused was produced before the court and was sent to judicial custody.
This witness further stated that he called SI Mahesh Kumar who inspected the spot and took rough notes and prepared site plan at the State Vs. Hardayal Singh 20 instance of ASI Subh Ram. Later on SI Mahesh handed over him scaled site plan which is proved as Ex PW 10/A. He sent the exhibits of this case to CFSL, Kolkata through Constable Harjinder on 23.12.2006 vide RC No. 320/21. On 31.01.2007, Sukhwant Singh came in police station Tilak Nagar and handed over him the copy of birth certificate of deceased Gurpreet Singh which is proved as Ex PW 1/F and copy of divorce paper of Babli which are collectively proved as Ex PW 1/G. He took into possession the said birth certificate and divorce papers vide Ex PW 1/E. Thereafter, he collected postmortem report of deceased Gurpreet Singh. During investigation, he recorded statements of relevant witnesses and charge sheet was prepared and filed in the court. This witness has also identified the scooter bearing no. DL4SS1224 as Ex P3.
PLEA AND DEFENCE OF ACCUSED
24. In the statement U/s 313 Cr.P.C the accused has admitted that after divorce Babli was got married to him and the marriage was solemnized in Gurdwara Punjab Bagh, Baljeet Nagar, Delhi. He also admitted that Babli along with her son Monu started living with him after the marriage and he had given consent for the son of Babli to live with him and at that time Monu was aged about 4 years. He stated that he had accepted and always treated Monu as his son. He also admitted that State Vs. Hardayal Singh 21 on 06.11.2006 Monu was found missing from the house and he informed PW1 Sukhwant Singh about it on telephone at about 7.007.30 p.m. He also admitted that PW1 Sukhwant Singh went to the house of her daughter Babli and a missing person report was lodged at police post Khayala. He added that Sukhwant Singh was accompanied by his wife Smt. Sukhvinder Kaur. He further admitted that he along with PW1 Sukhwant Singh, his daughter searched for Monu for about 3 days. He also admitted that PW3 Babli along with him searched for Monu on 06.11.2006 but could not find him. He also admitted that PW5 Constable Om Parkash recorded DD No. 15 Ex PW 5/A regarding missing of Monu and this report was lodged by him while he went to the police post Khayala with his wife Babli.
In the other statements made by accused, he has either denied the prosecution case or has expressed his ignorance about the incriminating evidence emerging from prosecution case put to him by different questions. He stated that he is innocent and has been falsely implicated in this case. He has no role to play in the alleged incident in any manner. He has been implicated in this case at the instance of his father in law who had connived and instigated even his wife to implicate him in this case as they were not happy with his financial status. He has never ever maltreated and manhandled Monu and even his wife. He stated that he wants to lead evidence in defence. However, he has not State Vs. Hardayal Singh 22 produced any witness in his defence.
ARGUMENTS
25. The Ld Chief Public Prosecutor has argued that the accused was never happy with the child Montu @ Gurpreet as he was the child of the former husband of his wife Babli. PW2 Beero has last seen accused taking the child on scooter. The dead body of the victim was got recovered by accused and he used to beat the child of and on as per statement of the mother of the child. It is argued that PW18 though stated that mother of the child has lodged missing report of child but in fact it was cleverly lodged by the accused. The prosecution has been able to prove its case against accused beyond reasonable doubt and accused is liable to be convicted under Section 302 IPC.
26. Ld counsel for accused has argued that the last seen evidence of PW2 Beero who lives behind the gali of accused is not worth believing as PW18 ASI Shubh Ram has stated in the cross examination that if one has to go to Keshav Pur drain there is no need to go through the gali of PW2 Beero. Therefore, the statement of PW2 Beero should not be believed. It is also argued that the recovery of the dead body of the child at the instance of accused is not produced. The accused was arrested at 3.00 p.m on 09.11.2006 vide arrest memo Ex 6/A State Vs. Hardayal Singh 23 but the dead body is recovered before that at 1.00 p.m as crime team took photographs of dead body by 1.00 p.m.
27. It is also argued by learned counsel for the accused that the accused himself has lodged the report regarding missing of the child from the house. The police has also flashed information regarding missing child to different police stations and missing person Form is Ex PW 18/DA which shows that the child was missing. If the child was missing and was found in the drain, how can the accused be blamed for that. It is also argued that PW3 Babli in the crossexamination has stated that there were minor family skirmishes which are common in family life. PW3 in the crossexamination has also stated that she was not acquainted with the people living in the gali so the question of her knowing PW2 Beero does not arise. It is also argued that if accused used to hate the child, why he got him admitted in the school. Further, PW1 Sukhwant Singh, the father in law of accused has stated that the relationship between him and his son in law i.e accused was not strained. Further more, PW3 Babli has stated in the crossexamination that all the memos were signed by her in the Police Station. It is argued that the prosecution has failed to prove the complete chain of events against the accused, so the accused is entitled to be acquitted.
State Vs. Hardayal Singh 24 FINDINGS I have heard Ld Chief Public Prosecutor for the State, Ld counsel for accused and have gone through the rcord of the case and relevant provisions of law.
28. The present case is based on the circumstantial evidence, the important circumstances and points emerging in the case are being dealt with under different headings for the purpose of clarity, convenience and proper appreciation of evidence. But, before dwelling on all the important circumstances, it would be apt to first deal with the legal position as to cases based on circumstantial evidence. LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
29. As evidence, there is no difference between direct and State Vs. Hardayal Singh 25 circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence.
{See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly State Vs. Hardayal Singh 26 pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC State Vs. Hardayal Singh 27 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference State Vs. Hardayal Singh 28 of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal State Vs. Hardayal Singh 29 inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the State Vs. Hardayal Singh 30 one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so State Vs. Hardayal Singh 31 complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
UNDISPUTED FACTS
30. The marriage between accused and complainant Smt. Babli is admitted fact. It is also admitted that complainant Smt. Babli was earlier married to one Gurdev Singh and out of the said wedlock victim child Monu was born. Undisputedly, from the date of marriage of complainant Smt. Babli, child Monu also started living with them. The child admittedly did not return home on 06.11.2006 in the evening and the complainant and the accused together went to police post Khayala and lodged DD no. 15 dated 7.11.2006 Ex PW 15/A regarding missing of the child. It is also not disputed that the dead body of the child Monu was found in Keshav Pur, Najafgarh drain. The accused in the statement State Vs. Hardayal Singh 32 under Section 313 Cr.P.C has impliedly admitted that the dead body of the child Monu was recovered by stating in response to question no.9 that the dead body was already recovered and was in possession of police officials.
LAST SEEN EVIDENCE
31. The last seen evidence of accused and victim being together before the murder of the victim is treated as an important circumstance in the chain of incriminating circumstances in the murder cases based on circumstantial evidence. In the present case, PW3 the complainant Babli, the wife of accused, has stated that on 06.11.2006 at about 6.30 p.m her husband Hardayal accused took her son Monu with him on his scooter no. DL4S1224 on the pretext of a ride on the scooter (jhula dene ke bahane). He came back at the house on scooter alone at about 7.00 p.m. She asked him where he had left Monu and accused told her that he left Monu in the gali after taking a ride on the scooter. She also has stated that she personally inquired from the persons of neighbourhood and one Smt Beero who was residing in the gali situated in the back side of her house, told her that she saw accused taking her son Monu on scooter on the above mentioned time and place. On strong suspicion that accused made the child to disappear, she lodged report with the police by giving statement which is Ex PW 3/A. State Vs. Hardayal Singh 33
32. PW2 Smt. Beero has corroborated with the statement of PW3 Babli and has stated that on 06.11.2006 at about 6.15 p.m, she saw accused Hardayal Singh passing through the gali in front of her on a scooter with one small child sitting on the pillion seat of the scooter. She stated that in the same night Babli mother of the child and wife of accused met her and she was searching her child and she told her that she saw accused Hardayal going with the child on a scooter on the above mentioned date and time. In the crossexamination conducted by Ld Additional Public Prosecutor she has given the name of the child as Monu @ Gurpreet Singh.
33. Ld counsel for accused, based on the statement of PW18 ASI Subh Ram in the crossexamination that it was correct if one has to go to Keshav Pur Depot from the house of accused, he need not go from gali of Smt. Beero, wants this court to disbelieve the statement of PW2 Beero. But, this contention of Ld counsel for accused is not acceptable as after making the said statement in the crossexamination, PW18 ASI Subh Ram has made voluntary statement that the accused was giving joy rides to Monu @ Gurpreet on 06.11.2006 on a scooter as told to him by Smt. Beero on 08.11.2006 in her statement.
It is pertinent to note that PW2 Smt. Beero has not stated in State Vs. Hardayal Singh 34 her statement that accused took the boy on his two wheeler scooter through her gali to Keshav Pur Depot. Secondly, the mother of the victim PW3 Babli has stated that accused had taken her son Monu with him on his two wheeler scooter on the pretext of a ride in the scooter (jhula dene ke bahane). Therefore, when the accused had taken victim Monu on joy ride, it was not necessary for him to go through the gali of Smt. Beero to the place where the dead body of victim was found. The fact is within special knowledge of accused himself alone, as he was on joy ride with the child, so he should explain as to which places he went before they reached the Najafgarh drain. Therefore, the statement of PW18 in the crossexamination that if one has to go to the Keshav Pur Depot from the house of accused, then he need not go from gali of PW2 Smt. Beero does not absolve the accused from the negative inference against him. Further, even if, PW2 Smt. Beero has not seen accused with the child on the two wheeler scooter on 06.11.2006, the statement of PW3 the mother of the child is sufficient to establish the incriminating circumstance of the child being last seen with the accused on two wheeler scooter as he had left with child on joy ride in presence of PW3 Babli.
34. I do not find anything in the crossexamination of PW2 Smt. Beero and PW3 Babli or in the statement of any other prosecution witness which may discredit the statement of PW2 Smt. Beero and State Vs. Hardayal Singh 35 PW3 Babli that accused was seen as the last person with the victim when he was on joy ride on two wheeler scooter with him before the dead body of victim was found in the Najafgarh drain near Keshav Pur Depot.
MOTIVE
35. It is the prosecution case that accused was never happy with the child who was the son of his wife (complainant) from her previous husband and he used to beat the child. He wanted the child not to live with him and the complainant but the complainant PW3 Babli did not consent to his said wish and also to his other wish that the child should remain with her maternal grandparents. Therefore, to get rid off the child he has committed his murder by throwing him in the Najafgarh drain.
36. The importance of motive in the cases based on circumstantial evidence cannot be undermined. In Shiv Narayan Vs State (NCT of Delhi) 2001 V AD (DELHI) 761 the Division Bench of our High Court has held:
"It is well settled principle of law that in a case based on circumstantial evidence motive assumes considerable importance. However, failure to establish motive would not affect prosecution case if there is positive evidence and establishes the charge against the accused. If other circumstances State Vs. Hardayal Singh 36 are such as to complete the chain connecting accused with crime then lack or absence of motive is not fatal. "
In Tarsem Kumar v Delhi Admn 1995 Cr LJ 470 (SC), JT 1994 (5) JT 264 (SC), the Supreme Court has laid down that where the case of the prosecution has been proved beyond all reasonable doubt on the basis of material produced before court, the motive loses its importance, but in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes great importance. It was further emphasised that if each of the circumstances proved on behalf of the prosecution is accepted by the court for the purpose of recording a finding that it was the accused who committed the crime in question, then even in the absence of any proof of a motive for commission of such crime the accused can be convicted. [See also State of Madhya Pradesh v Digvijay Singh AIR 1988 SC 1740, 1981 Cr LJ 1278; Arun Kumar v State 1996 Cr LJ 2280 (Del) (DB)].
37. In Budha Satya Venkata Rao v State of Andhra Pradesh 1 (1995) CCR 35 (SC), the Supreme Court again emphasised that in a case of circumstantial evidence, the aspect of motive assumes considerable importance. A similar view is taken in several other cases State Vs. Hardayal Singh 37 (See Surinder Pal Jain v Delhi Admn AIR 1993 SC 1723, 1993 Cr LJ 1871 (SC); Sarbir Singh v State of Punjab 1993 Supp (3) SCC 41, 1993 Cr LJ 1395 (SC)). In Prem Kumar v State of Bihar (1995) 3 SCC 228, 1995 Cr LJ 2634 (SC), the Apex Court held that if motive is proved or established, it affords a key or a pointer, to scan evidence in the case, and as a satisfactory circumstance corroboration. It is a very relevant and important aspect:
(i) to highlight intention of the accused; and,
(ii) the approach to be made in appreciating the totality of circumstances including evidence discussed in the case.
38. Absence of motive cannot be said to be fatal to the prosecution case but motive assumes pertinent significance in a case solely based on circumstances, as existence of motive is an enlightening factor in the process of presumptive reasoning in such a case; the absence of motive, however, puts the court on its guard to scrutinise the circumstance more carefully to insure that suspicion and conjecture do not take the place of legal proof.[See Surinder Pal Jain v Delhi Admn 1993 (3) SCC 681; Mahender Singh Dhaviya v State 2003 (1) AD 733 (Del)]
39. In a case of circumstantial evidence, motive helps in the process of presumptive reasoning. However, by itself it is not sufficient State Vs. Hardayal Singh 38 to convict a person [See Chet Ram v State 1997 Cr LJ 1029 (Del) (DB)]. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence [See State of Uttar Pradesh v Babu Ram 2000 Cr LJ 2457 (SC)].
40. Therefore, the motive assumes importance in the criminal cases based on circumstantial evidence. In the present case, PW3 has stated and it is admitted fact also that it was her second marriage with the accused and with the consent of accused, she brought her son Monu @ Gurpreet, which was born out of her previous marriage, at the house of accused after marriage. She stated that accused was not happy with her son as he did not want to keep her son Monu with him at his house and he usually gave beatings to Monu and also used to throw him out on many occasions from his house. He also used to ask her as to why she had brought Monu with her at his house. He used to insist upon her to send back Monu to the house of her parents but she was insisting that she would keep Monu with her as he was her son.
41. The fact that accused got the child admitted in the school does not necessarily show that he got him admitted to the school out of love and affection of a father. The statement of PW3 Babli, the mother of the child shows that accused had ill will towards the child. It is true State Vs. Hardayal Singh 39 that in the crossexamination PW3 Babli has stated that accused used to treat her good whenever he used to take her out along with her son. She also stated that there used to be minor family skirmishes which are common in the matrimonial life but in the crossexamination, she has also stated that accused never took her for shopping. She also denied the suggestion that accused got her purchased her necessities like clothes etc. Therefore, the statement made by PW3 complainant Babli in the cross examination in this regard are contradictory and are unable to support the contention of Ld counsel for accused that there were good relations between complainant and the accused or the accused and the victim child. What matters in this case is the relationship between victim child and accused and mere admission of the child in the school with the help of accused does not necessarily lead to inference of innocence of accused.
42. In view of the above, the mother of the victim child PW3 Smt. Babli who is the best witness to know the relationship between the child and the accused, as she was close to both of them, having stated that accused was not happy with her son and he did not want to keep him with them in the house and used to throw him out on many occasions from the house, in my view, is the crucial evidence to infer that accused was never happy with the child Monu, he being step father of victim State Vs. Hardayal Singh 40 Monu @ Gurpreet.
RECOVERY OF DEAD BODY OF CHILD
43. PW3 complainant Babli has stated that on strong suspicion that accused must have made the child disappear, she lodged report with the police by giving statement Ex PW 3/A. On 09.11.2006, she joined investigation with the police. Her husband, the accused, was interrogated and he made disclosure statement Ex PW 1/A that he had thrown Monu in Najafgarh Nala in front of Keshav Pur Depot. Thereafter, he pointed out the place where he had thrown Monu in the ganda nala vide pointing out memo Ex PW 1/B. The dead body was taken out of the drain with the help of diver and she identified the dead body which was taken into possession by investigating officer vide memo Ex PW 1/C. She identified the pant of the victim Ex P1, the Tshirt Ex P2 and has also identified the Bajaj Chetak two wheeler scooter DL4S1224 Ex P3 on which the accused took the child on joy ride. The statement of PW3 Babli (complainant) is corroborated by the witnesses PW1 Sukhwant Singh and PW6 SI Vijender Singh, PW7 Constable Satish and PW 18 ASI Subh Ram.
44. It is true that the crime team report shows that the spot was State Vs. Hardayal Singh 41 examined by it between 1.00 p.m to 1.30 p.m vide document Ex PW 15/A and the arrest memo Ex PW 6/A of the accused shows that the time of arrest is 3.00 p.m as pointed out by Ld counsel for accused. The statement of initial IO PW18 ASI Shubh Ram made in the cross examination on 23.10.2010 shows that they left the spot finally at about 2.30/3.00 p.m. It means that the IO along with the accused and complainant etc were present at the spot prior to 2.30 p.m. This fact finds corroboration with the crime report Ex PW 15/A prepared by PW15 which shows that crime team examined the spot between 1.00 p.m to 1.30 p.m. Obviously, the crime team was called by the initial investigating officer who must be present at the spot prior to 1.00 p.m after obtaining disclosure statement of accused and after his arrest. Hence the time of arrest of 3.00 p.m given in the arrest memo Ex PW 6/A does not seem to be correct as it conflicts with the crime report Ex PW 15/A and statement of PW18 initial IO made in the crossexamination on 23.10.2010. The statement of PW14 retired Sub Officer Shri Kishan also does not throw any light on the time of recovery of dead body from the Najafgarh drain. In the crossexamination he could not give the time but has stated that it was noon time. Therefore, it appears that the arrest memo is filled up by investigating officer at 3.00 p.m after completion of proceedings at the spot though the accused is arrested by him prior to 1.00 p.m to call the crime team at the spot by 1.00 p.m. However this State Vs. Hardayal Singh 42 lapse on the part of investigating officer may require criticism of the initial investigating officer PW18 ASI Shubh Ram but does not lead to disbelieving the prosecution case in toto.
ADDITION/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
45. Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).)
46. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false State Vs. Hardayal Singh 43 answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)
47. In view of the above, if accused makes any false statement in the statement under Section 313 Cr.P.C or does not explain properly any incriminating circumstance, it may be taken as an additional/missing link in the chain of circumstances appearing against the accused in the case.
48. In the present case, the accused in question no.2 in the State Vs. Hardayal Singh 44 statement under Section 313 Cr.P.C has stated that when he left the house Monu was playing with other kids in the gali and Babli was watching him during that time. This false statement was made by him to save himself. No suggestion is put to complainant PW3 Babli that when accused left the house victim Monu was playing with other kids in the gali and she was watching him during that time. There is no evidence which may support this plea of the accused which apparently is false.
Accused has also taken a false plea in the statement under Section 313 Cr.P.C in response to question no.4 that he has accepted and always treated Monu as his son. Further, the accused after having thrown the child in the Najafgarh drain not only misguided complainant Babli his wife that he has left the child in the gali but also he went with her later on to the police post Khayala and lodged the report vide DD No. 15 Ex 5/A that the child was missing though he knew what has happened with the child. Further, on the next day also, he continued misguiding the complainant PW3 Babli and pretended that he was making efforts with her for tracing the child by going with her here and there and it is only when the complainant the mother of child PW3 Babli became suspicious that she lodged FIR Ex PW 4/A after which the accused was interrogated and gave disclosure statement and got the victim recovered from Najafgarh drain. These acts of the accused by making false statements in the statement under Section 313 Cr.P.C, lodging a false State Vs. Hardayal Singh 45 missing child report while knowing the true facts and also pretending to the complainant and going with her here and there to trace the child in search of the child, in my view, complete the chain of incriminating circumstantial evidence against him in this case by filling the missing link in the chain and providing additional link in the chain of circumstance.
RESULT OF THE CASE
49. In view of the above, the prosecution has been able to prove its case against the accused beyond the shadow of reasonable doubt. The accused is convicted under Section 302 IPC. Let he be heard on the point of sentence. The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open court on this 22nd day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Hardayal Singh 46 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI S.C. No. 88/2010 State Vs Hardayal Singh S/o Surjit Singh R/o 5C/77, Khui Wali Gali Vishnu Garden New Delhi.FIR No. 835/2006
Police Station Tilak Nagar Under Sections 302 IPC. ORDER ON SENTENCE
Vide my separate judgment dt 22/12/2010 convict/accused Hardayal Singh was convicted for the charge under Section 302 IPC.
Learned Chief Public Prosecutor for the State has argued for capital punishment as convict/accused Hardayal Singh had committed murder of his child Monu @ Gurpreet aged four years on contd.
//2// his two wheeler scooter no. DL4S 1224 and at his instance dead body State Vs. Hardayal Singh 47 of child was taken from the Najafgarh drain. So, it is argued that extreme penalty should be awarded to convict.
On the other hand, learned amicus curie Sh Aseem Bhardwaj, Advocate has argued that convict is not a previous convict, he is young man, mother of convict had already expired during the pendency of the trial in Nov.2010. Convict was working as a daily wage labour as carpenter prior to this case, so lenient view may be taken against him.
The sentence for murder prescribed by section 302 IPC is death 'or imprisonment for life' in the alternative. The sentence of life imprisonment is the minimum, provided under this section, and that cannot be reduced even if the court so desires. {See Shamim Rahmani v State of Uttar Pradesh AIR 1975 SC 1883, 1889, 1975 Cr LJ 1654.) The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for and the magnitude of the offence, and the manner of its commission. {See Krishan v State of Haryana 1997 contd.
//3// Cr LJ 3180 (SC)}. The determination of sentence in a given case depends on a variety of considerations; the more important being the nature of the crime, the manner of its commission, the motive, which State Vs. Hardayal Singh 48 impelled it and the character and antecedents of the accused. {See Apren Joseph alias Current Kunjukunju & ors v State of Kerala AIR 1973; SC 1, 1973 Cr LJ 185}. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, specially social pressures which induce the crime which we may epitomize as a 'just sentence in an unjust society' are another consideration. {See Shiv Mohan Singh v State (Delhi Admn) AIR 1977 SC 949; 1977 Cr LJ 767}.
Keeping in view the over all facts and circumstances of the case, I do not find this case to be one amongst rarest of rare cases to justify awarding of capital punishment to the convict. Therefore, the convict Hardayal Singh is awarded sentence of life imprisonment for the offence under Section 302 IPC. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors Vs. State of Assam 2000 Cr LJ 1144 (Gau) (DB) there is no need to award fine under Section 302 IPC in the given facts and circumstances of the case.
Contd.
//4// The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
The copy of judgment and order on sentence be supplied to the accused free of cost. File be consigned to record room.
State Vs. Hardayal Singh 49 Announced in the open court on this 24 th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Hardayal Singh