Delhi District Court
State vs . Raj Kumar @ Raju S/O Sh.Nand Kishore on 20 April, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
S.C.NO.95/09
FIR No.303/2007
PS-O.I.A
U/s 302/201/34 IPC
State Vs. Raj Kumar @ Raju s/o Sh.Nand Kishore
R/o H.No. E-86 Harkesh Nagar
New Delhi
Challan filed on :30.06.07
Received by Fast Track Court on: 22.10.09
Reserved for order on: 09.04.10
Judgment delivered on:20.04.10
JUDGMENT
Brief facts of the prosecution's case are that on 13.04.07 one Harish Singh got recorded DD no.4 copy of which is Ex.PW15/A in PP Okhla regarding missing of his brother Rajesh @ Tuntun. This DD was recorded at 9 a.m. He has stated in the said DD no.4 about missing of his brother Rajesh @ Tuntun w.e.f. 8.4.07. On the same day in the night at about 9 p.m again complainant Harish Singh @ Haresh visited the PS and got recorded his statement Ex.PW1/A in which he has stated that he is residing at E-87, Harkesh Nagar, New Delhi and his permanent address is Village Karchi (Pariva) Post Sinhpur, District Baliya UP. He is working as labourer in Orient Export Company. His younger brother Rajesh Singh @ Tuntun came from village before one month and started residing with him. He was working with Ahuja Radio, 215 Okhla Ph.3. On 08.04.07 (Sunday) Rajesh was present in the house. Rajesh used to go out for walk with Rajkumar @ Raju. On 08.04.07 in the morning he alongwith Rajesh took breakfast. Thereafter he left Rajesh in the room of Rajkumar @ Raju and went for his job. When he came State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 1 back from his work place in the evening Rajesh was not available at the house. He asked Raju about Rajesh but he did not give any satisfactory reply. Rajkumar @ Raju uttered that 'wah bachcha nahin hai jo gum ho jayega, apne aap ghar aa jayega'. He made search for him but he could not be traced. He also got recorded missing report in PP in this respect. He suspects that Rajkumar @ Raju has hidden his brother Rajesh at some unknown place. His brother may kindly be searched. On this statement IO ASI Nizamuddin made endorsement and got the case registered. The investigation was done and accused Raj Kumar was arrested on 14.4.07. His disclosure statement was recorded and he disclosed about committing the murder of Rajesh with the help of his associates Sanjay Pratap and Adesh. On the pointing out of accused Raj Kumar dead body of Rajesh was recovered from H.No. E-86 Harkesh Nagar, Delhi. Post mortem was got done. Accused Sanjay and Adesh were produced before Juvenile court. After completion of the investigation challan u/s 302/34 IPC was filed in the court.
2. This case being triable by the court of session and after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 25.07.07 and thereafter by Fast Track Court on 22.10.09.
3. The accused Raj Kumar @ Raju was charged u/s 302/201 IPC on 31.08.07 by my Ld. Predecessor Sh VK Bansal, LD. ASJ to which accused pleaded not guilty and claimed trial.
4. The prosecution in support of its case in all has examined as many as 20 witnesses. Thereafter the prosecution evidence was closed.
5. The evidence against the accused was put to him in his State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 2 statement of accused recorded u/s 313 Cr.P.C in which he has pleaded his innocence and stated that he has been falsely implicated in this case.
6. I have heard Sh Inder Kumar Ld. APP for the State as well as Sh.SK Saxena Adv./Amicus Curiae for the accused and perused the testimonies of the Pws and exhibited documents carefully.
7. In view of the submissions made by the Ld.counsel for the accused persons as well as Ld.APP for the State I have also perused the testimonies of Pws. Pw1 Harish Singh @ Haresh is the complainant and brother of deceased Rajesh in this case and he has deposed that on 8.4.07 it was holiday being Sunday. AT about 9.30 p.m he went for his duty leaving Rajesh at the room. In the evening when he returned he found his room locked. He unlocked the room and found that no food was cooked. He found that there was complete silence in the gallary. Accused Raju was standing outside the door of his room. Somebody from inside the room of Raju spoke 'Uska Bhai aa gaya'. Accused tried to hit him with his hand but he saved and went to his room. On asking Landlady told him that she had seen Rajesh upto 10 or 11 a.m. He searched for his brother but could not find him. On Monday also his brother did not return. On Tuesday he went to Ahuja Radio where his brother was working and he was informed that Rajesh had not joined his duty on Monday and Tuesday. After 3-4 days thereof while he was passing through the gallary one Panditji told him that nobody would tell him but he is telling that Raju had killed his brother and buried the dead body. He made telephone to the police. Two police officials came and he alongwith police officials went to the room of Raju where on the floor the skin of buffalo was found. On enquiry Raju told him that he shall made inquiries from Dr. Divesh and that he had no altercation with his brother Rajesh. Dr.Divesh told him that Raju bounced upon Dr. Divesh on which his brother Rajesh asked Raju as to State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 3 why he is giving beatings to Divesh on which Raju forcibly took away Rajesh. He again went to the room of Raju alongwith police and Raju told them 'Tera Bhai ab iss duniya mei nahi hai'. There was one tall boy in the room and Raju told that he is master. Police recorded his statement in the PP on 13.4.07 which is Ex.PW1/A. He further deposed that on 14.4.07 at about 10 or 11 a.m Raju alongwith police official, he and his brother took them to his room at E-86 Harkesh Nagar. The dead body was found buried under the earth near the staircase. On that the bricks were also found laden. The dead body was dug out with the help of two labourers on the pointing out of accused. The pointing out memo is Ex.PW1/B. He identified the dead body of his brother vide statement Ex.PW1/C and Ex.PW1/D. The dead body was handed over to him vide statement Ex.PW1/E. Police has not investigated the case property. He had made a complaint to the Police Commissioner, copy of which is Ex.PW1/F.
8. PW2 Ramesh Singh is also the brother of the deceased as well as PW1 and he has deposed that his brother Harish made call to him and enquired about Rajesh. Harish again made call that he has learnt that Raju has killed Rajesh on which he came to Delhi on 13.4.07. They made call at 100 number and police came there and made enquiries. Raju made confession in their presence that he has committed murder of Rajesh. Thereafter police made further enquiries from him. ON 14.4.07 accused and one lady officer from AIIMS, his brother Harish and Raju went to house of Raju i.e. E-86 Harkesh Nagar and on pointing out of spot near staircase dead body was found buried. He identified the dead body of his brother Rajesh vide statement Ex.PW2/B.
9. PW3 HC Ram Chander is the FIR recorder and he has stated that he recorded FIR no. 303/07 u/s 365 IPC. The copy of FIR is Ex.PW3/A. State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 4
10. PW4 HC Rampal is the witness from crime team and he proved the photographs clicked by him as Ex.PW4/A1 to A17 and its negative as Ex.PW4/B1 to B15. He also prepared the video cassette of the proceedings of taking out of the dead body. The video cassette is Ex.PW4/C and CD is Ex.PW11/B.
11. PW5 SI Mahesh Kumar draftsman has deposed that he prepared the scaled site plan which is Ex.PW5/A.
12. PW6 Sultan Ahmad has deposed that accused Raj Kumar resides at H.NO. E86 Harkesh Nagar New Delh. Urmila bhabi of accused also resided there in the second part. ON 14.4.07 from the house of accused Raj Kumar one dead body was dug out at the pointing out of accused Raj Kumar. Three pieces of wooden danda, salt, one blood stained brick, two gunny bags, one pair of shoes were recovered and sealed by the police and seized vide memo Ex.PW6/A. He identified the brick Ex.P1, dumble Ex.P2, three wooden sticks Ex.P3, pair of shoes Ex.P4, shirt Ex.P5, two jute bags Ex.P6.
13. PW7 Ved Prakash has deposed that on 14.4.07 SDM and other police officials were present at the house of Raj Kumar at E-86 Harkesh Nagar and on the pointing out of accused Raj Kumar one dead body was dug out from his house at a distance. Three wooden dandas, one brick, gunny bags and other articles were recovered alongwith the dead body. Police also taken earth control from under the body. He identified the case property.
14. PW8 Dr.B.L.Chaudhary has deposed that he has conducted the post mortem on the dead body and proved post mortem report Ex.PW8/A. State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 5
15. PW9 Ct. Satish Kumar has deposed that he took the case property from Malkhana and deposited the same in CFSL Kolkatta. He took the same through RC no. 85/21.
16. PW10 Ct. Ashok has deposed that on 14.4.07 he took the dead body to AIIMS Hospital Mortuary and deposited there and on 15.4.07 post mortem was conducted and after post mortem the dead body was handed over to relatives.
17. PW11 Trilok Sharma is the Tehsildar cum Executive Magistrate Kalkaji on 14.4.07 and he alongwith SDM MR. Dhingra reached at the spot as per the information received from PS. Accused was in the custody of police who pointed out a spot which was underneath a staircase, a kind of store in a house no. E-86 Harkesh Nagar and accused informed in his presence that dead body was lying buried in that place which could be taken out if the spot is dug. Two Labourers were arranged and spot was dug and at a depth of about 1-1/2 feet a human dead body was noticed and taken out. IT was found covered by salt kind of gunny bag parts. The dead body was found half naked on the upper portion and was of male. One single shoe recovered in that process was also seized besides three dandas.One brick bearing blood stains was also seized besides a wooden kind of heavy instrument normally used in physical exercise from the site. One shirt (Check) was also recovered and all were seized vide memo Ex.PW6/A. He identified the pointing out memo Ex.PW1/B. He has further deposed that all these proceedings were recorded in videography also. He identified the case property. He identified the photographs. Sh Dhingra is no more alive and he can identify his handwriting and signatures being familiar with his writing. He identified death report Ex,PW11/A on which signatures of Mr.Dhingra is available. He identified the signatures of Mr. Dhingra on ex.PW6/A and Ex.PW1/B. HE identified the CD Ex.PW11/B. HE has further deposed that all these proceedings and facts which he deposed in this case were entirely State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 6 under the supervision of SDM Sh Dhingra. Dr.Sanjeev Lalwani, Astt Professor, AIIMS Deptt of Forensic Medicine was also present besides police officials and other witnesses when these proceedings of exhumation of body were carried out.
18. PW12 Mohd. Anis has been given up by the prosecution.
19. PW13 HC Satya Narain has made entry no.3972 regarding depositing of 10 sealed parcel in the Malkhana. He also made entry no. 3976 in register no.19. He further deposed that on 30.5.07 the exhibits were sent to CFSL through Ct. Satish and on 25.12.07 the exhibits and result was received through HC Hari Singh. He proved the copy of register no. 19 as Ex.PW13/A, copy of RC Ex.PW13/B and copy of receiving of of CFSL Ex.PW13/C.
20. PW14 Insp. Z.H. Khan has received the investigation on 20.5.07 and he has stated that exhibits were sent to FSL and scaled site plan was prepared through SI Mahesh. Charge sheet was prepared and he got filed the same through SHO. He proved the report of CFSL Ex.PW14/A.
21. PW15 ASI Mohd. Nisamuddin has deposed that on 13.4.07 complainant Hari Singh(should be Harish) @ Haresh came to PS and got recorded DD no.4 Ex.PW15/A regarding missing of his brother. He further stated that complainant again visited PS at about 8.30 p.m and recorded his statement Ex.PW1/A on which he made endorsement Ex.PW15/A and got the FIR registered. He tried to trace the missing person as well as accused Raj Kumar but of no avail.
22. PW16 Dr. Sanjeev Lalwani, Astt. Professor has deposed that on 14.4.07, as requisition, he alongwith two junior associates reached at the site i.e. Harkesh Nagar. The SDM and some police officials were present there. The site was dig out for exhumation of body . Digging State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 7 took place in his presence. There was lying a material like tyres, bricks etc. He has further deposed that after digging a dead body was exhumed and seizure memo of the dead body was prepared which is Ex.PW1/B.
23. PW17 Raj Kumar has deposed that he was taken to a house in Harkesh Nagar by the police where fawra and kassi were given to him and one Prem Chand and after digging a dead body of one young man was taken out which was covered with salt. One shoe was in the foot of dead body.The dead body was highly decomposed He identified the photographs of the dead body. He could not tell the date and house number.
24. PW18 Ct. Ram Kishan has deposed that he recorded DD no.4 regarding missing of Rajesh got recorded by Hari Singh. The copy of DD is Ex.PW18/A.
25. PW19 Insp. Manoj Kumar Sharma is the First IO of this case and he has deposed that on 14.04.07 on receipt of secret information by Insp. Prakash Chand he alongwith Ct. Sudhir reached near Kalkaji Temple and on the pointing out of secret informer accused Raj Kumar was apprehended and arrested vide memo Ex.PW19/A and his personal search was conducted vide memo Ex.PW19/B. He was interrogated and his disclosure statement Ex.PW19/C was recorded. Accused led the police to his house at E-86 Harkesh Nagar and on his pointing out dead body was recovered. During this proceedings, SDM Sh CM Dhingra, Executive Magistrate Sh Trilok Sharma and Dr. Sanjeev Lalwani were present and photographs were taken and video cassette was prepared. He further deposed that three danda, one mudgar and two jute big bags/bori and salt was also found in the ditch. The pointing out memo is Ex.PW1/B and articles were seized vide memo Ex.PW6/A. The brick was also taken into possession and dead body was sent to mortuary. He arrested other two accused Sanjay Pratap and State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 8 Adesh vide memo Ex.PW19/D and F and recorded their disclosure statements Ex.PW19/H and J. Both these accused are facing trial before Juvenile Court. Video cassette was handed over to Insp. Prakash Chand vide memo Ex.PW19/K. Post mortem was got conducted and after post mortem one viol, one pullanda of clothes of deceased and sample seals were handed over to IO vide memo Ex.PW19/L. The viscera of deceased was seized vide memo Ex.PW19/M. He further deposed that accused Sanjay Pratap pointed out the place of incident vide memo Ex.PW19/N and accused Adesh pointed out vide memo Ex.PW19/P. He got prepared the scaled site plan and stated that videography and photography of the place of recovery of dead body was conducted. the video cassette is Ex.PW19/P and later on it was converted to CD which is Ex.PW19/P1.
26. PW20 Insp. Prakash Chand is the second IO and he has deposed that complainant Harish made a complaint in the PS regarding missing of his brother Rajesh from 8.4.07 and he casted doubt on one Raju. HE further deposed that on 14.4.07 he received secret information and they went to Kalkaji temple where secret informer pointed out towards one Raj Kumar who was apprehended and arrested and his personal search was conducted. He gave disclosure statement Ex.PW19/C and in the disclosure statement disclosed about exhumation of dead body in his house. He called SDM, Executive Magistrate Trilok Sharma and Dr. lalwani, photographer and videographer. Accused pointed out his store room where labourer started digging and after digging one dead body was taken out. He seized the articles lying in the pit vide memo Ex.PW6/A. He filled form no. 25.35 Ex.PW11/A and dead body was sent to mortuary of AIIMS through Ct.Ashok with application Ex.PW20/A to preserve the same. He prepare the site plan Ex.PW20/B. HE seized the video cassette vide memo Ex.PW19/K. He deposited the case property in the malkhana He arrested accused Sanjay Partap (facing trial before juveniel court) vide memo Ex.PW19/D and his personal search was conducted vide State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 9 memo Ex.PW19/F. He made disclosure statement Ex.PW19/H and he also pointed the place of incident vide memo Ex.PW19/N. He prepared the brief facts Ex.PW20/C. After post mortem the dead body was handed over to the brother of deceased. The exhibits were taken into possession vide memo ex.PW19/L and viscera was seized vide memo Ex.PW19/M. He further deposed about arrest, personal search and recording of disclosure statement of accused Adesh (juvenile). He identified the photographs as well as video cassette and CD. He identified other case property.
27. In the overall analysis of the testimonies of all the witnesses it is revealed that in this case no one has seen the accused committing the crime. There is no direct evidence in this case. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by this court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710-11, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 10 '10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established.
(2) those circumstances should be of a definite tendency unerringly pointing towards guilty 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'.
28. In this case initially DD no.4 was recorded by complainant Harish @ Haresh on 13.4.07 regarding missing of his brother Rajesh. Thereafter again he went to PS and got recorded his statement Ex.PW1/A. In the said statement Ex.PW1/A the complainant has casted doubt on present accused Raju. In his statement Ex.PW1/A he has stated that he left Rajesh at the room of Raju and went for his duty and thereafter his brother did not turn up. On enquiry from Raj Kumar @ Raju he did not give any satisfactory reply and he suspects that Raju has hidden his brother at some unknown place. Now coming to the deposition made before the court by PW1 Harish Singh @ Haresh who is complainant in this case he has stated that he was residing at E-87 Harkesh Nagar, New Delhi and Rajesh was his real brother. He was working in Ahuja Radio and on 8.4.07 it was Sunday and his brother was at home and he himself went for duty. In the evening when he returned back he did not find his brother and he found that there was complete silence in the gallary. On perusal of his cross examination it is revealed that he has made improvements in his further deposition made in the court. It has come in his statement though it has come under improvement, that after 3-4 days PW1 was passing though the gallary and one Panditji told him that nobody would tell him but he is telling that Raju had killed his brother and buried the dead body and Dr. Divesh told him that Raju bounced upon Dr. Divesh on which his brother Rajesh asked Raju as to why he is giving beating to Divesh on which Raju forcibly took away Rajesh. The land lady told him that she State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 11 had seen his brother upto 10 or 11 a.m. He has further stated that he and police again went to the room of Raju and in his presence and in the presence of Police accused Raju told them "tera bhai ab iss duniya mei nahi hai". On perusal of the statement of PW1 It seems that he has not stated all the above mentioned version in his statement Ex.PW1/A and even on perusal of the statement Ex.PW1/A it is revealed that he has not stated that version before the court that he left his brother Rajesh at the room of Raj Kumar @ Raju. It seems that he could not narrate the entire incident in his statement PW1/A at the time of its recording because he has studied only upto 4/5th class and he has stated that police recorded his statement on their own. IT seems that police has not recorded his entire statement. However, it has been specifically stated by him that his brother Rajesh had gone missing w.e.f 8.4.07 and thereafter his dead body was got recovered from the house of accused Raj Kumar @ Raju. He has further stated in cross examination that he identified the dead body of his brother on the basis of clothes found on the dead body and it is of his brother. Pant and Shirt and shoes were found on the dead body. About 100 people gathered at the spot when the dead body was taken out. He had no quarrel with the accused before the incident on the issue of cleaning of drain. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murdered and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and int his process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witness in order to see that the offender is punished. This is human psychology and no one can help it. PW2 State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 12 Ramesh Singh is also the brother of deceased Rajesh as well as PW1 and he came to Delhi when he received the information regarding murder of his brother. He has clearly stated in his statement that accused Raju was interrogated and he made confession in their presence that he has committed the murder of Rajesh. Both the PW1&2 have corroborated the version of each other that on 14.4.07 accused took police party to his house at E-86 Harkesh Nagar and on the pointing out of Raju, from a spot near the staircase, dead body was found buried and he identified the dead body of his brother. PW1 Harish (complainant), PW2 Ramesh, PW6 Sultan Ahmad, PW7 Ved Prakash all have stated that dead body was dug out from the house of accused Raj Kumar in their presence at the pointing out of accused. So, all the Pws i.e. PW1,2,6,7 have corroborated the version of each other in respect of exhumation of the dead body from inside the house of accused Raj Kumar. Their testimonies in this respect has further been strengthened by the testimony of PW11 Sh Trilok Sharma, the then Executive Magistrate Kalkaji who reached at the house of accused alongwith SDM Mr. Dhingra. Mr. Dhingra SDM could not be examined in this case since expired. PW16 Dr. Sanjeev Lalwani, Astt. Professor Forensic Medicine has also reached at the spot because team of doctor was also requisitioned on that day and he also deposed about exhumation of dead body. There is no reason to disbelieve the testimony of PW11 Sh Trilok Sharma, being Executive Magistrate in this respect. PW6 Sultan Ahmed who is an independent witness has stated that E-86 Harkesh Nagar is the house of accused Raj Kumar and at the pointing of accused one dead body was dug out. In cross examination he has stated that the house of the accused was 100/150 sq yards. The deadbody was dug from the gallary and length and breadth of gallary was 3x5 feet. PW7 Ved Prakash in cross examination has stated that he know accused Raj Kumar since his childhood. They have studied together. He has also stated that police called neighbourer when accused was arrested and articles were seized in his presence at the spot. Ld. defence counsel has not put any State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 13 single question to any of these witnesses in cross examination that accused is not the owner of house no. E-86, Harkesh Nagar, Delhi. As per video cassette Ex.PW19/P and CD Ex.PW19/P1 (video cassette converted to CD) the dead body was exhumed from the house no. E- 86 of accused Raj Kumar after digging the place pointed out by accused. Deceased was residing at House no. E-87 with his brother PW1 Harish. The place of recovery of dead body was not in the knowledge of police and it has been pointed out by accused himself on the basis of his disclosure statement Ex.PW19/C and thereafter police came to know about the exhumation of dead body. The dead body was recovered from the house of accused and his disclosure statement is to be taken into consideration being admissible in evidence. Only after disclosure made by the accused, police came to know about burring of dead body by the accused. It is not possible that dead body had been buried by someone else in the house of accused. No explanation has been given by the accused in his statement recorded u/s 313 Cr.PC as to how the dead body has been buried in his house. It is also not a easy job for anyone or the police to bring a dead body and bury the same in the house of accused. So, the plea of accused that he does not know the deceased is not tenable in the eyes of law. Since the place from where the dead body was recovered is belonging to accused, the prosecution has successfully established the presence of accused at the spot and that he is the owner of H.No. E-86, Harkesh Nagar, Delhi.
29. PW1 in his statement Ex.PW1/A has stated that he left his brother at the house of accused Raj Kumar on 8.4.07 and then went for his duty. In his deposition before the court he could not state so. However, taking into consideration his statement Ex.PW1/A and taking it as second set of evidence, he has stated that he left his brother at the house of accused. So, lastly he left his brother at the house of accused and in view of this it has been established by the prosecution that deceased Rajesh was lastly left at the house of accused Raj State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 14 Kumar on 8.4.07 by his brother PW1. Thereafter deceased has not returned back. PW1 has also proved one complaint Ex.PW1/F filed before the Commissioner of Police on 15.04.07 by the residents of Harkesh Nagar against accused Rajkumar @ Raju. This complaint has been signed by 17 residents of Harkesh Nagar. It was received by the office of Police Commissioner on 5.6.07. In the said complaint it has been mentioned that on 8.4.07 Rajkumar had taken away Rajesh while giving beatings. Since this complaint has been filed by 17 residents of Harkesh Nagar, it seems that present accused Raj Kumar is a gunda element of the area.
30. The proceedings conducted at H.No. E-86 Harkesh Nagar, Delhi at the time of exhumation of dead body has also been photographed and videographed. The prosecution has examined PW4 HC Rampal who proved the photographs Ex.PW4/A1 to A15 and video cassette Ex.PW4/C and CD Ex.PW11/B. I have also watched the said CD on computer and it is revealed that entire proceedings has been videographed and accused alongwith other police officials and public persons are present in the CD. The Prosecution has examined PW17 Raj Kumar Labourer who did the digging work and took out the dead body and in cross examination he has stated that entire body was under the soil/malwa. He denied the suggestion put to him that leg of dead body was visible. By putting this suggestion admission has come on record that dead body was dug out from the house of accused Raj Kumar i.e. H.NO. E-86 Harkesh Nagar, Delhi. No suggestion has been put to PW17 that he did not perform the digging work at the house of accused and took out a dead body. I have also perused the cross examination of each witness PW1,2,4,6,7,11,16 & 17 but their testimonies could not be shattered by the Ld. defence counsel in cross examination. So, prosecution has proved that digging work was done by PW17 at the house of accused Raj Kumar and entire proceedings were photographed and videographed. The prosecution has further proved that the dead body was exhumed from the house of accused State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 15 Raj Kumar. Accused has not taken any step to lead defence evidence that dead body was not recovered from his house. So, the prosecution has also successfully established that dead body of Rajesh was recovered after digging up a corpse from a grave in the house of accused Raj Kumar@ Raju.
31. PW3 HC Ram Chand is the FIR recorder and he has stated that he recorded the FIR Ex.PW3/A on the basis of rukka brought by Ct. Ram Kishan and sent by ASI Nizamuddin. PW15 ASI Nizamuddin has stated that he got recorded the FIR. So, copy of FIR Ex.PW3/A has successfully been proved by the prosecution. PW15 ASI Nizamuddin and PW18 Ct. Sanjeev both have corroborated regarding recording of DD no.4 Ex.PW18/A by complainant . So, DD no.4 has been proved by the prosecution. PW5 SI Mahesh is the formal witness who prepared the scaled site plan Ex.PW5/A. PW19 IO Insp Manoj has stated that he got the scaled site plan prepared. So, scaled site plan has been proved in this case. PW13 HC Surya Narain is the MHCM who made entries regarding depositing of case property in the malkana and proved the entries Ex.PW13/A. He has also stated that case property was sent to CFSL through Ct. Satish and PW9 Ct. Satish Kumar has corroborated his version in this respect. PW14 Insp.ZH Khan has also deposed in this respect. So, it has been proved on record that case property was deposited in the malkhana and thereafter sent to CFSL for analysis. PW14 has also proved the CFSL result Ex.PW14/A. I have also perused the said result. As per the result of CFSL blood was detected on Ex.1 i.e. brick, 2 i.e. dumble, 4 i.e.shoes, 5 i.e.Shirt, 6(a) i.e jute bag, 12(a) i.e. trouser, 12(b) i.e. underwear & 12(c) i.e. socks. and blood could not be detected on Ex.3(a) (b) and (c) i.e. one wooden stick each. It further states that human blood was detected on Ex.1 bricks, Ex.2 dumble, Ex.4 shoes, Ex.5 shirt, Ex.6(a) jute bag, Ex.6(b) jute bag. However, human blood could not be detected on Ex.12(a) (b) and © i.e. one trouser, underwear and socks. Blood group of AB was detected on Ex.5 i.e. shirt but blood group on other articles could not be established. In this case State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 16 the dead body was exhumed after six days of murder. So, it seems that blood could not be found on some of the exhibits. It is stated in case Law Motiram Gaman Pawar Vs. State of Maharashtra, JT 2002 (2) SC 637 that :
Sec.3, 27 with IPC, 1860 - Sec.302 - circumstantial evidence - appreciation - Blood stained clothes and knife recovered at the instance of accused - CFSL report showing it to be human blood - No grouping done due to disintegration of blood spots - Not established that blood on cloth and knife was of deceased - If chain is incomplete and benefit goes to accused. Held that merely on this ground, chain cannot be stated to be incomplete.
32. PW19 Insp. Manoj Kr Sharma and PW20 Insp.Prakash Chand both have stated about arrest of accused vide memo Ex.PW19/A and his personal search vide memo Ex.PW19/B as well as his disclosure statement Ex.PW19/C. I have also perused the disclosure statement of accused Ex.PW19/C. On the basis of disclosure statement Ex.PW19/C, dead body was recovered from the house of accused in this case. So, disclosure statement of accused has now become one of the piece of evidence and one circumstance of the case since admissible in evidence. In case law Mohan Lal Vs. Another Vs. Ajit Singh, AIR 1978 Supreme Court 1183 it is stated in head note (D) that :-
'Evidence Act(1872), Ss. 24 and 27- case of murder and robbery - Disclosure statement - Held to be voluntary and admissible on facts'.
It is held in the above noted case that :-
'It could not be said that the accused was interrogated for several hours and that his disclosure statement was involuntary so as to attract S.24 of the Evidence Act. The evidence on the record was sufficient to show that the statement was not only voluntary but it fell within the State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 17 purview of S.27 of the Evidence Act inasmuch as the 'fact discovered' was the place from which the various articles were produced by the accused and his knowledge of it. As the information given by the accused related to that important fact, it was clearly admissible under Sec.27 of the evidence Act'.
In case Law Subhash Vs. State of Haryana, AIR 2008 Supreme Court 446 that :
'Robbery and Murder - Proof - Accused person allegedly threw deceased and other person into canal after committing robbery of money and tractor - Nothing on record to doubt presence of said person at scene of occurrence - Circumstance of recovery of dead body of deceased, recovery of tractor from possession of accused and 'Barma' from possession of co-accused proved guilt- Sequence of events revealed reasons for delay in lodging FIR - Prosecution had established guilt of appellant beyond all reasonable doubt'.
Further Both the Pws have stated that SDM and Executive Magistrate were called including Dr.Sanjeev Lalwani and dead body was exhumed on the pointing out of accused. It is strongest circumstance in this case that the dead body of deceased Rajesh was exhumed from the house of accused Raj Kumar @ Raju. Accused has not taken any defence as to how the dead body came in his house and engraved over there. So, the pointing out memo Ex.PW19/N has successfully been proved by the prosecution. Exhumation of dead body from the house of accused on his pointing out is one of the circumstance which points to his guilt in this case. Further, at the time of excavation some articles were seized by the police i.e. one brick Ex.PW20/A3, one mudgar Ex.PW20/A4, three wooden sticks State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 18 Ex.PW20/A5, one shoes Ex.PW20/A6, one blood stained shirt Ex.PW20/A7, two jute bags Ex.PW20/A8 and two jute pieces Ex.PW20/A9. and both the Pws have proved the seizure memo Ex.PW6/A. PW11 Trilok Sharma has also deposed about seizure of articles from the place of recovery of dead body. Further video cassette was seized vide memo Ex.PW19/K and viscera was seized vide memo Ex.PW19/M. So, the seizure memos have been proved by the prosecution. PW20 has prepared the site plan Ex.PW20/B. They have further corroborated that the case property was deposited in malkahna. I have also perused the cross examination of PW19 and 20 and it is revealed that their testimonies could not be shattered by the Ld. defence counsel. However, I have found some contradictions in the testimonies of witnesses as well as documents available on file in respect of arrest of accused but the case of the prosecution cannot be thrown away on this score alone. The other contradictions are of trivial in nature and can be overlooked as these can be possible due to lapse of time.
33. Ld defence counsel submits that in this case copy of FIR has not been sent to Ilaqua Magistrate and prosecution could not establish this chain of circumstance. The non- compliance of Ss.154 and 157 or that of the Punjab Police Rules does not constitute a ground to throw away a prosecution case but it does emerges as a factor to be seriously reckoned with while appreciating the entire evidence. Its non-observance is bound to cast some shadow on the case, obviously to its detriment, because of the adverse inference. Its degree depends upon the facts of a particular case. First Information Report is expected to reflect the occurrence truly, without embellishment or fabrication. Its recording without any reasonable delay also excludes the possibility of conjuring up of a false case by the police. Thus to save the report from any kind of attack and also to derive assurance and authenticity to the facts stated in this report, compliance of the provisions of Code and also of the Punjab Police Rules is essential. But in actual practice it has State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 19 been notice that this rule is observed more in breach. Sending of the report to the Magistrate as provided in Sec.157 is no doubt directory and not mandatory. Its directory nature, however, does not mean that the police officers can profane or violate without any legal consequence. Taken singly, such a delay or failure may not be sufficient to lead to the conclusion that the investigation was tainted or unfair.
34. I have also perused the medical evidence. PW10 Ct. Ashok has taken the dead body to AIIMS Hospital mortuary and PW8 Dr. BL Chaudhary has conducted the post mortem. He proved the post mortem report Ex.PW8/A. I have also perused the said report. As per report skin was peeling at places and degloving of the skin at both the hand and feet. Scalp hair were loosing. Face was distorted due to decomposition. Both scrotum were ruptured and testes were exposed. The following antimortem injuries are mentioned:
1. Vertically placed abrasion of size 10x8 cm was present on the right scapular region. Middle border of the abrasion was 6 cm. Later to mid line.
2. Abrasion of size 9x5.5 cm was present on the right chest adjacent to the interior fold, 2.5 cm below from clavical.
Head showed extra vassion of blood under scalp area over left fronto pareito temporal and right front of parietal region. Skull showed depressed communutted fracture of left fronto parieto temporal bones and communutted fracture of right fronto parieto temporal bones. Meninges were torned underline communuted fracture on left fronto parieto temporal region. Base of skull shows multiple fracture of anterior and middle cranial fossa. Brain was liquifide. There was fracture of 3 to 10 ribs present on the lateral aspect on left side and extra vassion was present around the fracture. He has opined that the cause of death in this case was cranio cerebral injury caused by blunt force which is sufficient to cause death in ordinary course of nature. All injuries are ante-mortem in nature. As per the post mortem report there were State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 20 injuries on the scapular region and right chest and multiple fracture has been found on bas and skull. From the spot Mudgar Ex.PW20/A4 and three wooden sticks were recovered. Mudgar is generally used to do exercise or to separate the grains from hay. It seems that mudgar as well as sticks blow were given on the head of deceased Rajesh due to which he sustained fracture in his skull and thereafter he expired. So, weapon of offence i.e. mudgar and sticks have been recovered and proved by the prosecution.
35. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case as per disclosure statement Ex.PW19/C of accused Raj Kumar he has stated that deceased used to tease his bhabi(sister in law) and use unparliamentary language against her. He tried to make him understand but deceased showed no improvement due to which he planned to murder him. The said statement made by the accused is admissible in evidence since recovery of dead body as well as other articles i.e.mudgar, three sticks etc were effected from the house of accused Raj Kumar. Further PW7 Ved Prakash who know accused since childhood and being neighbourer of accused in cross examination has stated that on the document which he signed it was mentioned that deceased was having some relations with the bhabi State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 21 (Urmila who was widow) of the accused and that is why deceased was killed. So, by putting this question by the Ld. defence counsel, motive to kill deceased has been brought on record by the defence itself. In view of the evidence available on file, the prosecution has successfully proved the motive to commit the murder of deceased Rajesh.
36. In nutshell, considering the second set of evidence i.e. statement of PW1 Ex.PW1/A, Harish brother of deceased has left his brother Rajesh at the house of Raj Kumar @ Raju on 08.04.07 and thereafter he went to his duty. Rajesh(Deceased) did not return back thereafter. So, Last seen is present in this case. PW1 casted doubt on accused Raj Kumar @ Raju and he was apprehended and as per his disclosure statement Ex.PW19/C he pointed out his house no.E-86 Harkesh Nagar where he exhumed the dead body of Rajesh. All the witnesses PW1,2,6 &7 have corroborated in this respect. Even their testimonies has also been supported by PW11 Trilok Sharma (Executive Magistrate) and PW17 Dr. Sanjeev Lalwani. Accused used to live at E- 86 while deceased used to live in H.NO. E-87 which are adjacent to each other. PW1,2,6,7 & 11 have also corroborated about presence of accused at the place of recovery of dead body. So, presence of accused at the spot has been established by the prosecution. The proceedings for exhumation of dead body has been covered through videography. The accused is present in the videography. Accused has not taken the defence that the place form where the dead body was recovered was not under his ownership. So, the ownership of H.No.E-86 has been proved to be that of accused Raj Kumar by the prosecution. The dead body was exhumed from this house. So, this is one of the strongest circumstance to connect the accused with the present case crime. By the testimony of PW7 as well as disclosure statement of accused, the motive to commit murder has been established by the prosecution that deceased had some relation with the bhahi of accused. The weapon of offence has also been recovered from the State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 22 place from where the dead dead body was exhumed. Post mortem report revealed that deceased had been beaten and he had given blow on his head and ribs and he sustained fracture on head and ribs. So, it seems that he was given blow with the recovered mudgar (dumble) as well as sticks and weapon of offence has been proved by the prosecution. As per CFSL result human blood was detected on Ex.P2 Mudgar(dumble) but blood group could not be detected on any article except on Ex.5 i.e. Shirt. In this case the murder was committed on 08.04.07 and thereafter the body was buried. It was exhumed on 14.04.07. It is crystal clear that the dead body was taken out after about six days and it is clear from the evidence of PW8 Dr. BL Chaudhary that skin was peeling at places and degloving of the skin at both the hand and feet. So it seems that blood got putrified and hence blood group could not be detected because as per seizure memo Ex.PW6/A these articles were recovered during excavation/digging. The alleged place where the dead body was buried was not in the knowledge of the police and it came to the knowledge of the police only after accused had made disclosure statement. So, the prosecution has proved each and every chain of circumstance in this case without any reasonable doubt.
37. Before a accused can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime morally certain and leave no ground for reasonable doubt, the circumstantial evidence should be so cogent and compelling as to convince the court that upon no rational hypothesis other than murder can the facts be accounted for. The murder in the present case is cruel and revolting and had been perpetrated in a very shocking manner because the deceased was given beating with mudgar (dumble) and thereafter his body was exhumed. I find certain and explicit evidence in this case. The strongest circumstance to connect the accused with the murder of present case is that the dead body was recovered on his pointing out from his house. Other Circumstances have also been State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 23 established by the prosecution successfully.
38. In view of my above discussions, I am of the view that the prosecution has been able to complete the chain of circumstances in this case by leading cogent and reliable evidence and prosecution has left no stone unturned to prove its case beyond reasonable doubt against accused Raj Kumar @ Raju. The prosecution has been able to prove the charge u/s 302/201 IPC against the accused. I therefore, hold accused Raj Kumar @ Raju guilty for the commission of offence punishable u/s 302/201 IPC and convict him thereunder. ANNOUNCED IN THE OPEN COURT ON 20.04.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 24 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI S.C.NO.95/09 FIR No.303/2007 PS-O.I.A U/s 302/201/34 IPC State Vs. Raj Kumar @ Raju s/o Sh.Nand Kishore R/o H.No. E-86 Harkesh Nagar New Delhi ORDER ON THE POINT OF SENTENCE Accused Raj Kumar has been held guilty for the commission of offence punishable u/s 302/201 IPC and convicted thereunder vide Judgment dated 20.04.2010.
2. I have heard the Ld. counsel Sh SK Saxena Adv. for the convict/accused as well as accused/convict himself on the point of sentence. During the course of arguments it has been submitted on behalf of the convict that he is aged about 46 years. He has three sons and one daughter. His daughter is of marriageable age and sons are aged about 17years, 12 years and 8 years. His wife is doing labour job. It has been submitted that the accused is suffering from diabetes and other allied diseases. He belong to a neutral family. It has further been submitted that this case does not fall in the category of rarest of the rare cases. So, lenient view may be taken against the accused/convict.
State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 25
3. Keeping in view the facts and circumstances of the case and the act done by the convict, I am of the view that he is not entitled to any leniency. Undoubtedly brutality is involved in every incidence of murder but that brutality by itself will not bring it within the ambit of the rarest of the rare cases for the purpose of death penalty.
Reference can be made to Subhash Ramkumar Bina @ Vakil Vs. State of Maharashtra, AIR 2003 SC 269. In Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 their Lordship of Supreme Court observed that the death sentence should be awarded only in the 'rarest of rare' cases where the alternative option is unquestionably forclosed. It was observed that statutory mandate of sec.354 Cr.P.C enjoins a duty on the court to give 'special reasons' as justification for award of capital sentence.
4. In Machchi Singh Vs. State of Punjab, AIR 1983 SC 957 their Lordship held that humanistic edifice is constructed on the foundation of 'reverence for life' but deviation from the principal and 'killing the killer' is justified only when self-preservation of society is in peril.
5. Taking into consideration the facts of the present case, I am of the opinion that this case does not fall under the category of rarest of the rare cases. So, convict Raj Kumar @ Raju is ordered to undergo Imprisonment for Life and to pay fine of Rs.5000/- u/s 302 IPC and in default of payment of fine to further undergo SI for two months.
State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 26
6. Convict Raj Kumar @ Raju is further ordered to undergo RI for three years and to pay fine of Rs.2000/- u/s 201 IPC and in default of payment of fine to further undergo SI for one month.
7. The benefit of sec.428 Cr.P.C be given to the convict. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open Court on 22.04.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Rajkumar @ Raju FIR No.303/07 Page No. 27