Delhi District Court
Following Judgments (I) Balwan Singh vs . State Of on 28 May, 2009
1
THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - V,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
Sessions Case No.72/08
FIR No.168/02
Police Station : Saraswati Vihar
U/section : 302/120-B/201/34 IPC
State
through NCT of Delhi.
Versus
1. Shailesh Kumar @ Guddu
S/o. Sh. Pateshwari Prasad
R/o. Village Pagore, PS Kaptan Ganj,
District Basti, U.P.
2. Santosh
S/o. Sh. Vishai
R/o. Rohta Choraha,
Thakudwara, PS Kotwali,
District Basti, U.P.
3. Alok Kumar
S/o. Sh. Pateshwari Prasad
R/o. Village Pagore, PS Kaptan Ganj,
District Basti, U.P.
Date of Institution : 28.05.02
Date of institution in this Court : 25.11.08
Arguments heard on : 20.05.09
Judgment announced on : 26.05.09
Contin...pg. 2
2
Present: Sh. Vipin Sanduja, ld. Addl. PP for state.
Ms. Dolly, ld, defence counsel for accused
persons.
JUDGMENT
1. Criminal justice machinery set on motion vide DD No. 8-A dated 28.02.02 Ex.PW-1/G when at about 8.45 a.m. an information was received at police station Saraswati Vihar, Delhi that at H.No. A-151/152, J.J. Colony, Shakurpur, Delhi is locked for the last one week and foul smell is coming out. The information of this DD entry was given to Addl. SHO Inspector Jag Ram Singh who along with SI Surjit Singh went to the spot. Copy of DD entry was given to SI Omvir Singh along with constable Bharat Kumar who also visited the said house.
2. The police officer SI Surjit Singh prepared rukka Ex.PW-17/A and stated that he has reached at the above said house where he met SHO and Addl. SHO and constable Bharat Kumar. One hammer was taken out from IO kit and lock of the room was broken. They discovered two rooms in the house. In the rear side room, they found an iron trunk Contin...pg. 3 3 from where a foul smell was coming at great extent. Under the trunk from a corner blood like liquid was thrown out but it had dried up. The trunk was opened in which a quilt and two male highly decomposed dead body were discovered. The witnesses identified the dead body of Ram Murty, contractor aged around 50 years and other dead body of Chamki is aged about 16-17 years. However, no eye- witness was present at the spot. On the basis of this rukka FIR Ex.PW-1/A was registered under section 302/201 IPC which was received by ld. Area MM at about 7.05 p.m. at the residence on 28.02.02.
3. The investigation officer called the crime team and photographer who took photographs and finger print expert also examined the spot. The broken lock Ex.P-1, iron trunk Ex.P-2, quilt Ex.P-3 and blood on floor and two Dumbbells Ex.P-4/1 and Ex.P-4/2 were taken in the possession and sealed with the seal of JS. The seizure memo of brass broken lock is Ex.PW-17/B. Seizure memo of trunk and quilt is Ex.PW-17/C. Seizure memo of blood stained piece of cloth is Ex.PW-17/D. Seizure memo of some Contin...pg. 4 4 pieces of floor with blood seized vide memo Ex.PW-17/E and seizure memo of two Dumbbells is Ex.PW-17/F.
4. The investigation officer recorded the statement of Insul Master and Ram Avtar regarding identification of dead body. The statement of Ram Avtar was recorded in detail wherein he stated that at about 10 days prior to this information, he saw deceased along with three persons who was coming after buying the vegetables and on asking deceased Ram Murat stated that some guests have come to his house and therefore he has brought so much vegetables. He further stated that deceased Ram Murat also disclosed that he has purchased some agricultural land in the village and he has to pay some money to those persons. Ram Avtar further stated that those persons are Guddu aged about 25-26 years and other two boys were of around 18-19 years and he can identify all the three boys. These persons stayed with deceased Ram Murat for two- three days and left on the day of Eid. Since then he saw lock on the house of deceased Ram Murat.
Contin...pg. 5 5
5. On 28.02.02 when foul smell was coming then he informed the police. The investigation officer verified the statement and recorded the statement of Insul Master, another labour and these two persons are prosecutions last seen witnesses.
6. The investigation officer started proceeded under section 174 Cr.P.C. and an information was sent to native village of both the deceased persons and dead body was preserved for 72 hours. The investigation officer after taking the due permission on 01.03.02 visited village Pagore, police station Kaptan Ganj and arrested accused Shailesh @ Guddu. The disclosure statement of Shailesh @ Guddu recorded. Thereafter on the basis of disclosure statement of accused Shailesh @ Guddu five Kisan Vikas Patras of Rs.10,000/- each were got recovered and seized vide memo Ex.PW-20/B.
7. Accused Santosh was arrested on the pointing out of accused Shailesh @ Guddu. His statement was also recorded and got recovered three sarees, two pant pieces, Contin...pg. 6 6 two shirt piece, two child pants, T-shirt, two pair sandals, underwear set from his house vide memo Ex.PW-20/F. The transit remand of accused persons were taken from CJM Court. The Kisan Vikas Patra were also seized vide Ex.PW- 20/F. The joint account documents of accused Shailesh and brother Alok Kumar, co-accused was seized vide memo PW- 20/I. The post mortem of dead body of both the deceased was carried out.
8. The accused Alok Kumar was searched and arrested on 06.03.02. After taking transit remand produced in Delhi court. The investigation officer filed an application for conducting the TIP of accused Shailesh @ Guddu and Santosh Kumar but they refused to join the TIP proceedings. The investigation officer then collected the post mortem report and took the opinion for cause of the death. IO also seized electric wire and Dumbbells and taken the opinion from doctor at the time of post mortem on the same. The sealed samples and pulandas were sent to FSL. The report of the FSL filed during the course of trial. The final charge Contin...pg. 7 7 sheet for the trial of offence against Shailesh @ Guddu, Santosh and Alok filed under section 302/201/120-B/24 IPC.
9. Ld. M.M. after compliance of section 207 Cr.P.C. committed the case to the court of sessions.
10. My ld. predecessor framed the charge against all the three accused vide order dated 15.01.03 for trial of offence under section 120-B, 302 read with section 120-B and section 201 IPC read with section 120-B IPC. Accused persons pleaded not guilty and claimed trial.
11. Prosecution examined following witnesses :-
A. Last seen witnesses
(i) PW-3 Ram Avtar
(ii) PW-4 Insul Master
(iii) PW-6 Malti
B. Medical witnesses
(i) PW-5 Dr. Akash Jhanjee
(ii) PW-23 Dr. Sarvesh Tandon
Contin...pg. 8
8
C. Formal police witnesses
(i) PW-1 WHC Chanchal - DD Writer
(ii) PW-2 HC Ramesh Kumar - collected and deposited
samples at FSL.
(iii) PW-8 SI Manohar Lal, Draftsman
(iv) PW-9 constable Madhu - witness to seizure of account
of deceased Ram Murat.
(v) PW-10 SI Subhash Chand
D. Land Transaction witnesses
(i) PW-7 Sanjay
(ii) PW-13 Moidhar
E. Formal police witness
(i) PW-11 constable Chunni Lal, photographer.
(ii) PW-12 constable Manoj Raghav - delivered FIR to area
MM and senior officers.
(iii) PW-16 Lady constable Raj Bala - received call at PCR from PCR van at police headquarter.
(iv) PW-18 HC Jaswant Singh, duty officer - received sealed parcels.
(v) PW-22 ASI Raghunath Roy, Basti, U.P.
(vi) PW-31 constable Jitender Kumar
Contin...pg. 9
9
F. Police witness of investigation
(i) PW-14 HC Hans Raj
(ii) PW-17 SI Surjit
(iii) PW-20 ASI Ram Kishan
(iv) PW-21 constable Braham Prakash
(v) PW-25 constable Bharat Kumar
(vi) PW-26 Ishdutt Tiwari, police station Basti
(vii) PW-27 constable Baldau Singh, Basti
(viii) PW-28 SI Prakash Dixit, Siddarath Nagar police station
(ix) PW-30 Inspector Jag Ram Singh.
G. Formal Public Witness
(i) PW-15 Rakesh Kumar
(ii) PW-19 Rajender Singh, Clerk from State Bank of
Bikaner and Jaipur.
(iii) PW-24 Sh. Rakesh Syal, ld. M.M.
(iv) PW-29 Iqram Hussain from post office Basti.
12. Statement of accused persons recorded under section 313 Cr.P.C. and they pleaded innocence and examined following witnesses :-
(i) DW-1 Kaushalya
(ii) DW-2 Iqram Hussain.
Contin...pg. 10
10
13. Ld. Addl. PP submitted that PW-3 Ram Avtar and PW-4 Insul Master are the witnesses of last seen. These witnesses had last seen deceased Ram Murat and his son Chamki alive in the company of accused Guddu and other two accused persons. PW-3 has said that he had seen all the three accused persons with Ram Murat. PW-15 Rakesh informed the police by dialing 100 number from his phone number 7181037. PW-16 lady constable Rajpal proved PCR form which corroborates fact that Rakesh informed PCR from the above number. The local police was informed and the police arrived at the spot on 28.02.02 and broke open the lock of the house and found two dead bodies in trunk from the said house. Dumbbells were recovered from the spot. PW-5 Dr. Akash Jhanjee who conducted the post mortem of both the dead bodies gave his opinion upon these two Dumbbells that injuries on the dead bodies were caused by these Dumbbells.
14. Ld. Addl. PP submitted that accused Shailesh and Santosh were arrested from their village at Basti on 01.03.02. Both accused gave their disclosure statement.
Contin...pg. 11 11 Accused Shailesh led the police party to Delhi to the house of deceased and got recovered a press with six inch wire. Accused Santosh got recovered one piece of wire from the house of deceased on 04.03.02. The FSL report Ex.PW-Z-2 detected B group blood on this piece of wire. This B group blood was also conducted on bed sheet from where the dead bodies were recovered.
15. Ld. Addl. PP submitted that accused Shailesh disclosed that deceased Ram Murat gave him Rs.70,000/-. The prosecution has proved the pass book of account no. 295016 i.e. Account of accused Alok and Shailesh maintained at post office Basti. This account was opened on 26.02.02 with initial deposit of Rs.20,000/-. On 27.02.02 Rs.10,000/- was withdrawn from this account. Accused Shailesh when arrested produced five Kisan Vikas Patras each of Rs.10,000/- Ex.PX-1 to PX-5 issued from post office Basti on 26.02.02 in the joint names of Shailesh and Alok. This much of information given by accused to the police which is proved by documentary evidence, can be proved Contin...pg. 12 12 against accused. This proves the motive was available with these accused persons to kill both the deceased.
16. Ld. Addl. PP has submitted that PW-24 Sh. Rakesh Syal, the then ld. M.M. who conducted the TIP of both the accused proved the same wherein both the accused persons refused to participate in the TIP. PW-28 SI Sh. Prakash Dixit of PS Kaptan Ganj proved the fact that police from Delhi Police came to the said police station and SI Praksh Dixit accompanied Delhi police to the house of accused Shailesh from where accused Shailesh was arrested. The prosecution has proved their case beyond all reasonable doubt against all the accused persons by way of above evidence.
17. Ld. counsel for the accused persons Ms. Dolly submits that prosecution has examined in total 28 witnesses. Out of which 18 are police officials, two are doctors, one clerk-cum-cashier from State Bank of Bikaner & Jaipur and one retired Deputy Post Master and six public witnesses. One public witnesses turned out to be hostile.
Contin...pg. 13 13 She contended that prosecution relied on public witnesses PW-3 Ram Avtar and PW-4 Insul Master who are last seen witnesses. She contended that testimony of PW-3 Ram Avtar and PW-4 Insul Master are contradictory and not implicating accused persons are the persons ever seen in the company of deceased Ram Murat. None of these witnesses had given any description of the boys seen by them. Both the witnesses are tenants of the deceased Ram Murat but they did not spell out the other tenants in the cross-examination. The complete testimony of both the witnesses raises a doubt on the reliability which clearly shows that they are planted witnesses.
18. Ld. defence counsel contended PW-6 Sanjay is son of the deceased Ram Murat who testified only on the basis hear say facts. Similarly PW-13 Moidhar, brother of the deceased Ram Murat also stated hear say facts. The prosecution has not proved any documentary or oral evidence to establish that deceased Ram Murat agreed to purchase 5 Bighas land from accused Guddu and accused Alok Kumar for Rs.3,50,000/- and Rs.1,35,000/- had already Contin...pg. 14 14 been paid and remaining money was to be paid in February, 2002. The testimony of these two witnesses cannot be relied as hear say testimony.
19. Ld. counsel for accused persons contended that the police officials PW-21 constable Brahm Prakash and PW- 30 Inspector Jag Ram Singh who went to the native village of accused persons Basti but did not join or disclose any public witness at the time of arrest of the accused persons. There are material discrepancies in the testimony of both the witnesses which casts a serious doubt about involvement and arrest of the accused persons and suggests that accused persons are falsely implicated in this case.
20. Ld. counsel points out the conduct of the police officials in respect of planting PW-3 and PW-4. In the cross- examination they admitted that police had shown the accused persons prior to TIP at police station. The refusal by the accused persons cannot be drawn adverse inference in these circumstances. PW-10 SI Subhash Chand of crime Contin...pg. 15 15 team find no chance prints at the spot how it is possible when as per allegations of prosecution accused persons lived with deceased Ram Murat for three-four days. She further drawn attention that the bank documents proved and Vikas Patras seized by police or the cloth items do not connect the accused persons with the murder of the deceased Ram Murat and his son Chamki. The items recovered from the possession of accused Santosh are common items and no cash or any money recovered from him. She further contended that on close scrutiny of the bank account of the deceased it shows that on 21.02.02 he had withdrawn Rs.80,000/- not Rs.70,000/-. The amount withdrawal of the deceased shown does not connect the purchase of Kisan Vikas Patras by the accused persons. No money or cash recovered from the houses of accused persons itself blow lit of the prosecution story of involvement of accused persons. She contended that defence witnesses led by accused persons DW-1 Kaushalya and DW-2 Ekram Hussain established the innocence of all the accused persons.
Contin...pg. 16 16
21. The prosecution case is based upon last seen witnesses and circumstantial evidence failed to prove the guilt against the accused persons. She relied on the following judgments (i) Balwan Singh Vs. State of Haryana - 2005 (2) Crimes 200 SC (ii) Nirmal Singh & Anr. Vs. State of Bihar - 2005 Crl. L J 672 (SC) (iii) Muthu Vs. State of Karnataka - AIR 2002 SC 2902 (iv) Hardeep Vs. State of Haryana - AIR 2002 SC 3018 (v) Baldev Singh Vs. State of MP - AIR 2003 SC 2098 (vi) Suresh Chaudhary Vs. State of Bihar - AIR 2003 SC 1981 (vii) Khima Vikamshi & Ors. Vs. State of Gujrat - AIR 2003 SC 1326 (viii) Sidharth Etc. Vs. State of Bihar - 2006 37 AIC 152 SC (ix) Bharat Vs. State of MP - AIR 2003 SC 1433 (x) Tarun Vs. State of MP JT 2002 (5) SC 498 (xi) State of Rajasthan Vs. Taran Singh & Ors. - 2004 (3) AIC 242 (xii) Chander Pal @ Raj Pal Vs. State of Haryana - 2004 (13) AIC 536 (xiii) Badam Singh Vs. State of MP - AIR 2004 SC 2816
(xiv) Chinnama Vs. State of Kerala - AIR 2004 SC 2816 (xv) Samghji Hariba Patil Vs. State of Contin...pg. 17 17 Karnataka - AIR 2007 SC 28 (xvi) Khujji Vs. State of MP - AIR 1991 SC 1853 (xvii) Chatar Singh & Ors. Vs. State of Haryana - 2008 (10) JT 230 (xviii) Ravinder Reddy Vs. Shekh Masan - 2008 (11) Scale 128 SC (xix) Venkatesan Vs. State of Tamil Nadu - 2008 (6) JT 640 (xx) Mani Vs. State of TM - 2008 AIR SC 1021 (xxi) Hatti Singh Vs. State of Haryana - 2007 V AD (SC) 59 (xxii) Avtar Singh Vs. State of Punjab - 2006 (4) Crimes 193 (xxiii) Chandu Chandrahas Vs. State of MP - 1992 AIR (SC) 2302 (xxiv) Chatar Singh & Ors. State of Haryana - 2009 AIR SC 378 (xxv) Ravindra Reddy Vs. Shaik Masthan - 2008 (11) Scale 128 (xxvi) Jahaladas Vs. State of Orissa - 1991 (2) SCR 298 (xxviii) K T Palanisamy Vs. State of Tamil Nadu - 2008 (1) SCR 581 She finally submits that accused persons may be acquitted.
22. The present case is based upon last seen evidence and circumstantial evidence. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter Contin...pg. 18 18 VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
23. The Supreme Court in Hanumant Govind Nargundkar and Anr. Vs. State of Madhya Pradesh, (AIR 1952 SC 343) observed that "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 Contin...pg. 19 19 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 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."
24. 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 Supreme 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;
Contin...pg. 20 20 (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 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.
25. In Padala Veera Reddy v. State of A.P. And Ors., 1990 (2) RCR (Criminal) 26 : (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 influence 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 Contin...pg. 21 21 (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.
26. In State of U.P. Vs. Ashok Kumar Srivastava, 1992 (3) RCR (Criminal) 63 : (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 teh 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.
27. A reference to a decision of Supreme Court in C. Chenga Reddy and Ors. v. State of A.P., 1996 (3) RCR (Criminal) 793 : (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.
Contin...pg. 22 22 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.....".
28. It has been consistently laid down by Supreme 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. 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.l (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab, 1987 (1) RCR (Criminal) 517 : (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to tbe closely Contin...pg. 23 23 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.
29. In the recent case of Raju v. the State by Inspector of Police, (SC) - 2009 (2) R.C.R. (Criminal) 153, Supreme Court, Full Bench consisting of three Judges reiterated the above discussed principle. MOTIVE :
Circumstance No. 1 : Deceased Ram Murat agreed to purchase land from accused Shailesh @ Guddu.
30. The circumstances in respect of sale of land between deceased Ram Murat and accused Shailesh, prosecution examined PW-7 Sanjay and PW-13 Moidhar. PW-7 Sanjay deposed that in August, 2001 his father deceased Ram Murat had a talk for purchasing of 5 Bighas Contin...pg. 24 24 land from accused Guddu for Rs.3,50,000/-. Deceased Ram Murat paid Rs.1,35,000/- and remaining would be payable in the month of February, 2002. The amount of Rs.1,35,000/- was paid to accused Guddu in Delhi. In February, 2002 accused Shailesh @ Guddu and Shantu @ Alok met the witness Sanjay and asked about the balance amount of the land. Then he contacted deceased his father Ram Murat on telephone. The deceased father told him that he would be reaching between 20th to 30th of this month at the village. After Eid about 5-6 days when Guddu and Alok met him in the village came to know about the death of Ram Murat and brother Chamki.
31. PW-13 Moidhar is elder brother of the deceased testified that in August, 2001 deceased Ram Murat told him about the purchase of 5 Bighas land of Guddu and Alok for Rs.3,50,000/- and Rs.1,35,000/- paid and balance amount to be paid in February, 2002. He testified that on 01.03.02, he came to know about the death of deceased Ram Murat and his son Chamki. Both witnesses subjected to cross- examination by counsel for the accused persons. PW-7 Contin...pg. 25 25 Sanjay in cross-examination stated that the papers were got signed for the land transactions which was prepared by Guddu and Rs.1,35,000/- paid to him by deceased Ram Murat. PW-13 Moidhar denied the suggestion that his brother did not tell him amount the purchase of land. Apart from testimony of these two witnesses, police seized the accounts papers of the deceased Ram Murat from State Bank of Bikaner & Jaipur. PW-9 constable Madhu is the witness in this respect who testified that on 30.04.02 copy of statement of account of deceased Ram Murat having account no. 6146 at State Bank of Bikaner & Jaipur, Lawrance Road were seized vide seizure memo Ex.PW-9/A. As per Ex.PW-19/A, account no. 6164 belongs to deceased Ram Murat and opened on 12.01.84. PW-19 Sh. Rajinder Singh, clerk from the State Bank of Bikaner & Jaipur proved the account opening form vide Ex.PW-19/A. The statement of account is Ex.PW-19/B. The statement of account shows that on 20.07.01 Rs.1,00,000/- were withdrawn. On 09.08.01 Rs.30,000/- were withdrawn from the account of deceased Ram Murat.
Contin...pg. 26 26
32. The analysis of above mentioned four witnesses namely PW-7 Sanjay, PW-13 Modihar, PW-9 constable Madhu and PW-19 Rajinder Singh established the motive of the accused persons Shailesh Kumar @ Guddu and Alok Kumar that they planned to have sale consideration of the land from deceased Ram Murat. They also wanted to save their land from the agreement of sale. They also joined the hands with third accused Santosh Kumar. Hence, prosecution proved the motive of accused persons beyond reasonable doubt.
Circumstance No. 2 : Last seen evidence :
33. The prosecution examined three witnesses who are termed as last seen evidence. PW-3 Ram Avtar testified that at the time of incident he was tenant of deceased Ram Murat. One day about 10.00 p.m., he saw accused persons coming with deceased Ram Murat having vegetables etc. Deceased Ram Murat told him that they are the relatives who came from the village. PW-3 Ram Avtar correctly identified accused Shailesh. He also stated that two persons already were present in the house. He further testified that Contin...pg. 27 27 all the three accused persons went inside the house of Ram Murat. On the next day, he found lock at the house of Ram Murat and thought he must have gone to the village as he has to pay some money. He testified that after four five days a bad smell was coming out and then the police was called and two dead bodies of Ram Murat and his son Chamki were recovered.
34. In cross-examination he testified that he has been living in the house of deceased Ram Murat for the last 2-1/2 years from the date of incident on rent and used to pay Rs.700/-. No rent receipt was issued to him. He testified that house of deceased is having two storied building and having two rooms on the ground floor. He also named the village of deceased Ram Murat as District Basti, Village Bagari and stated that he knows Ram Murat since child hood. He further testified that police came around 11.00 a.m. and lock was broken. Inspector Jag Ram was present there. He did not go inside the house. He further testified that he saw the dead bodies as brought by police and Contin...pg. 28 28 identified them. He further testified that after recovery of dead bodies he identified the accused persons after three four days in the police station. He saw the accused persons in the court on the date fixed and after identification in this case. He further denied the suggestions.
35. PW-4 Insul Master testified that deceased Ram Murat was the owner of house where he was tenant at the second floor. Chamki was the son of Ram Murat. In the year of incident, three four days prior to Eid accused Guddu came to meet Ram Murat. Ram Murat told him that he belongs to his village. He further testified that other two boys i.e. accused persons were also present. PW-4 Insul Master correctly identified all the three accused persons. He stated that he saw the lock on the house of Ram Murat prior to one day before Eid. He thought that Ram Murat must have gone to his village. After four five days a bad smell was coming from the house of Ram Murat. People of Mohalla gathered. Thereafter, police was called and lock was broken and two dead bodies of Ram Murat and his son Chamki were recovered from iron box.
Contin...pg. 29 29
36. In the cross-examination, he stated that smell observed in the morning time. He further stated that he cannot tell the number of persons and their names who collected at the room. He has been living in the house for the last five six years and paying rent Rs.700/- p.m. He further stated that Ram Avtar used to live on ground floor. He denied the suggestion that he was not living at the house of deceased as a tenant. He further stated that police did not allow him to enter into the room where the box containing the dead bodies was found. The police came at the spot in the morning and remained there till 4.00 p.m. He further deposed that after introduction to Guddu by Ram Murat, he saw the accused in the court and also seen at the police station after two three days of recovery of dead bodies. He further stated that he was called up by the police for identification of dead body and his statement was recorded. He denied the suggestion that he was not the tenant of deceased Ram Murat and never saw the accused persons before and after recovery of dead bodies.
Contin...pg. 30 30
37. PW-6 Malti, another witness examined by police who turned to be hostile. Ld. Addl. PP examined her but she has not supported the statement made to the police.
38. Another witness examined by the prosecution is PW-15 Rakesh Kumar who is running Kiryana Shop and PCO phone. When he saw lock at house no. A-151, 152, J.J. Colony, Shakur pur and bad smell was coming out from that house, he informed the police from his phone no. 7181037 and police came there.
39. The prosecution examined ld. Magistrate Sh. Rakesh Syal as PW-24 who conducted TIP proceedings of accused Shailesh Kumar and Santosh Kumar. Both declined to participate in TIP proceedings. He proved proceedings Ex.PW-24/A regarding accused Shailesh and Ex.PW-24/B is TIP of accused Santosh.
40. In order to appreciate above said testimony let us peruse the principle laid down by Supreme Court. In Contin...pg. 31 31 State of U.P. Vs. Satish [2005 (3) SCC 114] it was noted as follows:-
"22. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
41. Further in the case of Ramreddy Rajesh Khanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows :-
"27. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.
42. The prosecution examined PW-3 Ram Avtar and PW-4 Insul Master who were tenants of deceased Ram Murat, clearly and cogently testified that they saw accused Contin...pg. 32 32 persons in the company of deceased Ram Murat. Ram Murat also told them that accused Shailesh and two accused persons came from his village. On the next day, they found the house of Ram Murat locked. These witnesses' testimony successfully passed the test of cross- examination. They remained coherent and cogent and stated that they had seen accused persons prior to days of Eid in 2002 in the company of deceased Ram Murat. They correctly identified them in the court. Accused Shailesh and Santosh were given opportunity to join TIP but they declined as per proceedings Ex.PW-24/A and Ex.PW-24/B.
43. Deceased Ram Murat was seen alive in the company of accused persons and was last seen together by PW-3 Ram Avtar and PW-4 Insul Master. There is no long gap and possibility of other persons coming in between as on the next date the house of Ram Murat was found locked. Hence, in this case there is positive evidence that the deceased Ram Murat and his son Chamki were seen alive by PW-3 Ram Avtar and PW-4 Insul Master and seen together apart from other testimony of prosecution witness Contin...pg. 33 33 discussed hereinabove to corroborate this positive piece of evidence.
44. It is pertinent to mention here that all the three accused persons given opportunity to explain the circumstances while recording of statement under section 313 Cr.P.C. The specific questions were put to them which were in question no. 4 to 9 regarding last seen evidence on the basis of PW-3 Ram Avtar and PW-4 Insul Master. The accused persons failed to give any satisfactory explanation. They simply denied. However, all three accused persons given opportunity to lead evidence, they failed to examine any witness to put up their stand regarding last seen evidence.
45. Hence on the basis of above observations and discussion, the circumstances at the last seen evidence successfully proved by prosecution beyond reasonable doubt.
Contin...pg. 34 34 Arrest & Recovery :
46. The law is well settled in respect of admissibility of disclosure statement of accused according to which recovery effected. The position of law in relation to Section 27 of the Evidence Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others Vs. Emperor AIR 1947 PC 67 wherein it was held that :
"Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the information is accused. Mr. Megaw, for the Crown has argued that in such a case the 'fact discovered' is the physical object produced, and Contin...pg. 35 35 that any information which relates distinctly tot that object can be proved. Upon this view information given by a person that the body produced is that of a person murdered by him, that the weapon produced is the one used by him in the commission of a murder or that the ornaments produced were stolen in a dacoity would all be admissible. If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. The ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to S.26, added by S.27, should not be held to nullify the substance of the section. In their Lordships view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement Contin...pg. 36 36 the words be added 'with which I stabbed A' these words are admissible since they do not relate to the discovery of the knife in the house of the informant".
47. The Apex Court in the case of State of Uttar Pradesh Vs. Deoman Upadhyaya AIR 1960 SC 1125 held that :
"Section 25 and 26 were manifestly intended to hit an evil, viz. To guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offenses. These sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing of offences as it is concerned with protecting persons who may be compelled to give confessional statements. Section 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of truth of the statement made by him and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable."
Contin...pg. 37 37
48. The Apex Court in the case of Mohmed Inayatullah Vs. The State of Maharashtra AIR 1976 SC 483 held that :
"expression 'fact discovered' includes not only the physical object produced but also place from which it is produced and the knowledge of the accused as to that. Interpreting the words of Section "so much of the information" as relates distinctly to the fact thereby discovered, the Court held that the word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of provable information. The phrase "distinctly"
relates "to the fact hereby discovered". The phrase refers to that part of information supplied by the accused which is the direct cause of discovery of a fact. The rest of the information has to be excluded."
49. It was held by the Apex Court in the case of Earabhadrappa alias Krishnappa Vs. State of Karnataka 1983 (2) SCR 552 that :
"for the applicability of Section 27 of the Evidence Act two conditions are pre-requisite, viz. (i) information must be such as has caused discovery of the fact, and (ii) the information must 'relate distinctly' to the fact discovered Under Section 27 and so much of the information as distinctly relates to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the fact really thereby discovered, is admissible. While deciding the applicability of Section 27 of the Evidence Act, the Court has also to keep in mind Contin...pg. 38 38 the nature of presumption under Illustrations (a) to
(s) of Section 114 of the Evidence Act. This Court can, therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. In that case one of the circumstances relied upon by the prosecution against the accused was that on being arrested after a year of the incident, the accused made a statement before the police leading to the recovery of some of the gold ornaments of the deceased and her six silk sarees, from different places which were identified by the witness as belonging to the deceased. In that context the court observed : "There is no controversy that the statement made by the appellant Ex.P-35 is admissible under S.27 of the Evidence Act. Under S.27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact means some concrete or material fact to which the information directly relates."
50. The Apex Court in the case of State of Maharashtra Vs. Damu, S/o Gopinath Shinde and Ors. JT 2000 (5) SC 575 held that :
"The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is guarantee that the information supplied by the prisoner is true. The information might be confessional or non-
Contin...pg. 39 39 inculpatory in nature, but it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in section. The decision of the Privy Council in Pulukuri Kottaya Vs. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced; the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
51. In the case of Gulab Chand Vs. State of M.P. AIR 1995 SC 1598, besides Section 27, the Evidence Act, the courts can draw presumptions under Section 114, Illustrations (a) and Section 106 of the Evidence Act, where ornaments of the deceased were recovered from the possession of the accused immediately after the occurrence, the Supreme Court held that :
"It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan Vs. State of Rajasthan, AIR 1956 SC 54 that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated Contin...pg. 40 40 that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that he theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof. It appears that the High Court in passing the impugned judgment has taken note of the said decision of this Court. But as rightly indicated by the High Court, the said decision is not applicable in the facts and circumstances of the present case. The High Court has placed reliance on the other decision @page- CriLJ 1800 of this Court rendered in Tulsiram Kanu Vs. State AIR 1954 SC 1. In the said decision, this court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act has to be drawn under the 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months had expired in the interval, the presumption cannot be permitted to be drawn having regard to the circumstances of the case. In the instant case, it has been established that immediately on the next day of the murder, the accused Gulab Chand had sold some of the ornaments belonging to the deceased and within 3-4 days the recovery of the said stolen articles was made from his house at the instance of the accused. Such close proximity of the recovery, which has been indicated by this Court as an 'important time factor', should not be lost sight of in deciding the present case. It may be indicated here that in a latter decision of this Court in Earabhadrappa Vs. State of Karnataka 1983 2 SCC 330, this Court has held that the nature of the presumption and Illustration (a) under Section 114 of the Evidence Act must depend upon the nature Contin...pg. 41 41 of evidence adduced. No fixed time-limit can be laid down to determine whether possession in the recent or otherwise and each case must be judged or its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore, the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments."
52. The Apex Court in the case of Geejaganda Somaiah Vs. State of Karnataka 2007 Cri.L.J. 1792 SC held that :
Contin...pg. 42 42 "Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of Evidence Act, there is an exception carved out by Section 27 of the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved, Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence. As the section is alleged to be frequently misused by the police, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The Court has to be cautions that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discover of fact in order to attract the provisions of Sections 27 of the Evidence Act.
Contin...pg. 43 43
53. The prosecution examined PW-17 SI Surjit Singh who visited the spot on receiving DD No.8-A on 28.02.02. He initially started the investigation. He testified that the lock at H. No. A-151, J.J. Colony, Shakurpur, Delhi was broke open from where foul smell was coming. One iron trunk was laying in the room and some liquid was coming out from trunk which was dried. The trunk was opened and under a quilt two male dead bodies later on identified as Ram Murat, Thekedar aged about 50 yars and his son Chamki aged 16 years were recovered. He proved seizure memo of broken lock sealed with the seal of JS vide memo Ex.PW- 17/B. The seizure memo of trunk and quilt vide memo Ex.PW-17/C. The blood stained clothes were scratched and was kept in a dibbi vide memo Ex.PW-17/D. He also proved taking of earth control sample of the blood vide memo Ex.PW-17/E. He further proved two iron Dumbbells Ex.P-4/1 and P-4/2 which were laying in the room and sealed with the seal of JS and seized vide memo Ex.PW-17/F.
54. PW-25 constable Bharat Kumar testified and corroborated the testimony of PW-17. He also testified that Contin...pg. 44 44 he took rukka given by PW-17 Surjit and taken for registration. He also witnessed seizure memo Ex.PW-17/B to PW-17/F. PW-30 Inspector Jag Ram Singh, investigation officer also corroborated the testimony of PW-17 Surjit Singh and PW-25 constable Bharat Kumar.
55. PW-20 SI Ram Kishan is the witness who along with IO Inspector Jag Ram and HC Hans Raj, Purshottam, constable Bani Singh went to Kaptan Ganj, Basti in search of accused persons. He testified that accused Shailesh @ Guddu was arrested vide memo Ex.PW-20/K and his disclosure statement Ex.PW-20/A was recorded. PW-20 SI Ram Kishan proved the search memo of accused Shailesh PW-2/D. Accused Shailesh got recovered five Kisan Vikas Patras Ex.PX-1 to PX-5 from Bijli Board in the house of accused vide memo Ex.PW-20/B. On the pointing out of accused Shailesh, accused Santosh was also arrested vide memo Ex.PW-20/L. PW-20 SI Ram Kishan proved disclosure statement of accused Santosh Ex.PW-20/C, personal search memo Ex.PW-20/E. Contin...pg. 45 45
56. PW-20 further testified that on 02.03.02 on the pointing out of accused Santosh newly purchased articles recovered which were seized vide memo Ex.PW-20/F. These articles are three sarees Ex.P-1 to P-3, one pant piece brown colour P-4, pant piece cream colour Ex.P-5, shirt piece light yellow colour P-6, one shirt piece of gray colour Ex.P-7, two pants of kid Ex.P-8 and Ex.P-9, two T shirts of orange and grey colour Ex.P-10 and Ex.P-11, two pairs of sandles are Ex.P-12 and comb set is Ex.P-13. He further testified that on 05.03.02 he along with HC Purshottam went to Basti for search of accused Alok Kumar. A raiding party of constable Ishdutt Tiwari of police station Kaptan Ganj prepared. Accused Alok Kumar was apprehended and his personal search conducted vide memo Ex.PW-20/G. His disclosure statement was recorded vide Ex.PW-20/H. Accused Alok Kumar got recovered pass book of post office Basti Ex.PY issued on 26.02.02 in the name of Shailesh and Alok from his house vide memo Ex.PW-20/I. Accused Alok was brought to Delhi on 07.03.02.
Contin...pg. 46 46
57. PW-23 Ishdutt Tiwari, constable, district Basti, U.P. further corroborated the testimony of PW-20 ASI Ram Kishan in respect of arrest of accused Alok Kumar and seizure of pass book Ex.PY.
58. PW-27 constable Baldau Singh, district Basti proved DD entries of visit of police party from Delhi Ex.PW- 27/C and Ex.PW-27/D of DD entry no. 27/A and 27/B.
59. PW-28 SI Prakash Dixit, Janpath, Siddarth Nagar, U.P. further corroborated the fact that Inspector Jag Ram Singh along with staff of Delhi Police came to police station Kaptan Ganj. He along with them visited village Bagari in search of Guddu. Accused Guddu having real name as Shailesh Kumar. He also proved the arrest of Shailesh @ Guddu. His disclosure statement, arrest memo, personal search memo and recovery of five Kisan Vikas Patras. He identified the Kisan Vikas Patras Ex.PX-1 to PX-5.
Contin...pg. 47 47
60. PW-29 Ekram Hussain, retired Deputy Post Master, Post Office, district Basti, U.P. Testified that from 01.11.2000 to 31.05.04 he was posted there. He proved the Kisan Vikas Patras which was issued by him for Rs.10,000/- each dated 26.02.02 in the name of Shailesh Kumar and Alok Kumar. He also proved the application for opening of saving account in the name of Alok and Shailesh Kumar. He also proved the original ledger. He also proved the fact that the specimen signatures of Alok and Shailesh were obtained at the time of opening of account. He identified Kisan Vikas Patras Ex.PX-1 to PX-5 and attested copy of application form Ex.PW-29/A, pass book Ex.PY and photocopy of ledger Ex.PW-29/C.
61. Hereinabove the principle of section 27 of Evidence Act has been explained in detail and now applying the same principle in the present case, accused Shailesh Kumar was arrested on 01.03.02 at his native village Bagari, district Basti, U.P. The visit of Delhi Police raiding party established by witness of police station Kaptan Ganj as discussed hereinabove. The disclosure statement of Contin...pg. 48 48 accused Shailesh @ Guddu, Santosh Kumar and Alok Kumar is not admissible. However, the new fact discovered in pursuance to disclosure statement are admissible evidence. Hence, Vikas Patras Ex.P-1 to P-5, the account pass book Ex. PY, the application form Ex.PW-29/A, ledger pertaining to their joint account are admissible evidence against the accused persons. Accused Alok Kumar was arrested after five days on 06.03.02 and only one joint pass book Ex. PY recovered from his possession.
62. Now coming to the other recoveries when accused Santosh and Shailesh Kumar were brought to Delhi after arrest from Basti. The prosecution examined PW-17 SI Surjit Singh who testified that on 04.03.02 he again joined the investigation. Accused persons were taken to A-151, J.J. Colony, Shakur Pur, Delhi. Accused persons got recovered electric iron and wire 6 inches long double electric wire which was used for strangulation of deceased persons. He proved the seizure of electric iron and wire vide memo Ex.PW-17/G. He further testified that accused persons got recovered from the parchathti of the inner room electric Contin...pg. 49 49 wire used for strangulation which was taken in possession vide memo Ex.PW-17/H and sealed with the seal of JS. Accused persons Shailesh @ Guddu and Santosh in pursuance to their disclosure statement got recovered the electric iron Ex.P-5 and wire Ex.P-6 which were used in the commission of the offence.
63. The discovery of facts and recovery of electric iron and wire is the only admissible against accused Santosh and Shailesh Kumar. There is no evidence against accused Alok Kumar in pursuance of his disclosure statement regarding recovery of any of the articles which was used for committing the offence. The admissible facts are therefore :
(i) recovery of Kisan Vikas Patras Ex.PX-1 to PX-5 at the instance of Shailesh Kumar @ Guddu;
(ii) newly purchased articles three sarees Ex.P-1 to P-3, one pant piece brown colour P-4, pant piece cream colour Ex.P-5, shirt piece light yellow colour P-6, one shirt piece of Contin...pg. 50 50 gray colour Ex.P-7, two pants of kid Ex.P-8 and Ex.P-9, two T shirts of orange and grey colour Ex.P-10 and Ex.P-11, two pairs of sandles Ex.P-12 and comb set Ex.P-13 from accused Santosh Kumar;
(iii) recovery of electric iron Ex.P-5 and electric wire Ex.P-6 at the instance of Santosh and Shailesh Kumar and
(iv) recovery of accounts book at the instance of accused Alok Kumar Ex.PY.
64. It is pertinent to mention here that all the three accused persons given opportunity to explain in respect of above discussed specific recoveries from them. Now applying the principle laid down by Supreme Court in Gulab Chand (supra) case section 106, Evidence Act comes into play. The specific questions were put to all the three accused persons while recording statement under section 313 Cr.P.C. Question nos. 41 to 43 were put to accused Shailesh Kumar in respect of recoveries but has not given any satisfactory explanation. He stated them as correct. In Contin...pg. 51 51 response to question no. 42, he denied the knowledge. Question no. 26 was put to him regarding recovery of pass book but he failed to give any satisfactory explanation. All the three accused persons have also not lead any evidence to give the explanation how the recovery of vikas patras, newly purchased articles and pass book came to their possession just after the crime.
65. Hence, on the basis of above observation and discussion, the prosecution has proved beyond reasonable doubt the recoveries effected from the accused persons just after the crime.
Medical Evidence :
66. Prosecution examined PW-5 Dr. Akash Jhanjee to prove post mortem report of deceased Ram Murat; who testified that on 04.03.02 he conducted post mortem on the body of Ram Murat brought by Inspector Jag Ram Singh, PS Saraswati Vihar. He further stated that on external examination, following injuries were present on the body :-
Contin...pg. 52 52
1. Contusion - 3.5 X 2 present on right forehead. 2 cm above inner end of right eye-brow.
2. Contusion - abrasion 4.2.5. on the left side forehed just above outer half of left eye-brow.
3. Contusion - 3x2 c.m. On right cheek regions of face expending on to right nasal fold adjacent.
4. Contusion - 1.5 x .5 cm on inner surface of left lower lip.
5. Contusion - 5x4 cm. On right cheek region just front of ear pinna.
6. Contusion - 10.5 cm over right frontal of head extending on to right pariental and temporal region with over line skin depressed in wards and underline bones fractures.
7. Contusion - 2x1.5 cm. Over outer front of upper half of right side neck lying just below and inner right angle of mean diavele.
8. Two contusion measuring 2.5 x 1 cm and 3.5x1 cm enplaced adjacent to reach in passion over front of left side neck, 3. cm below the level of left angle of mandiadle and ending at the point 1 cm to the left Contin...pg. 53 53 On internal examination :
Neck - Soft tissue and muscles underneath injury no. 7 and 8 were bruised. Hyoid bone was intact. Both sides superior hons of thyroid cartilege at juncture with body of fracture with extra basation of blood in adjacent tissues. Tracheal rings were intact No foreign body in trachea.
Opinion :
In this case cause of death was asphyxia consequent upon combined effect of gagging and throatling. Scalp and head injuries were inflicted just at about the time of death. Injury No. 4, 7 and 8 were ante mortem in nature. Injury no. 1,2 3, 5 and 6 were caused by some heavy hard blunt object just at about the time of death. Bed sheet recovered from the mouth of deceased has been forcible thrust into the mouth.
Time since death was about 10 to 11 days. Blood sample of the deceased along with the bed sheet cloth piece recovered from the mouth, 5 cloth articles usual viscera were sealed and were handed over to the police along with the post mortem report Ex.PW-5/A.
67. PW-23 Dr. Sarvesh Tandon testified that on 04.03.02, he was posted at Aruna Asaf Ali Government Hospital Mortuary where he conducted the post mortem on the dead body of Chamki aged 15 years at about 3.15 p.m. brought Contin...pg. 54 54 by Inspector Jag Ram vide PM No. 331. There was alleged history of dead body being found on 28.02.02 around 10 AM, in a trunk along with his father's dead body in a de- composed state.
External examination :
Any external injury was inconspicuous due to extensive de-composition. There was dislocation of both knee joints and left elbow joint, post mortem in nature, due to folding of the dead body for packing into the truck.
Internal examination :
Neck :- Soft tissues were extensively contused in front and sides. Effusion was seen in the neck layers. There was fracture and dislocation at right body cornua junction of the hyoid bone, with clot at the fracture side. The cartilages of the neck were extensively contused.
Opinion :
The cause of death was asphyxia consequent upon ante-mortem throttling, by other party. Injuries to the neck tissues could be due to manual hand grip and sufficient to cause death in the ordinary course of nature. Time since death was 10-11 days. Clothes, blood sample Contin...pg. 55 55 and viscera preserved and handed over to police IO in person. His detailed report is Ex.PW-23/A.
68. The prosecution witness PW-5 Dr. Akash Jhanjee further proved the opinion given by him in respect of two Dumbbells recovered by the police Ex.PW-4/1-2. The detailed description given Ex.PW-5/D and E. The opinion given by the doctor is Ex.PW-5/F which is as follows :-
Opinion : Injuries no. 1, 2, 3, 5 and 6, being inflicted by these alleged dumbells of offence cannot be ruled out. Either these dumbells examined or similar such weapons could cause the injuries mentioned above on the body of the deceased, details of which are described in the original post mortem report.
69. The post mortem report of deceased Ram Murat and Chamki discussed hereinabove and the opinion Ex.PW- 5/F given by Dr. Akash Jhanjee after examination of the Dumbbells corroborates the facts either took place or similar such weapon could cause the injuries as described in detailed post mortem report Ex.5/A. The injuries are sufficient to cause death in ordinary course has already established. Hence, on the basis of testimony of doctors PW-5 Dr. Akash Jhanjee and Dr. Sarvesh Tandon and Contin...pg. 56 56 medical evidence established beyond reasonable doubt that deceased Ram Murat and his son Chamki died as a result of murder.
Conspiracy :
70. The Supreme Court in case titled State (NCT of Delhi) Vs. Navjot Sandhu - AIR 2005 SC 3820 - observed on the law of conspiracy as under :-
"As conspiracy is the primary charge against the accused, we shall now advert to the law of conspiracy - its definition, essential features and proof. Section 120-A of IPC defines criminal conspiracy. It says : "when two or more persons agree to do or cause to be done (i) an illegal act or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. Section 120-B prescribes the punishment to be imposed on a party to a criminal conspiracy."
71. There is one particular observation made by Supreme Court in Kehar Singh Vs. State (NCT of Delhi) - AIR 1988 SC 1883 :
1989 Cri LJ 1 observed :-
"It is, however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved nor is it necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient".
Contin...pg. 57 57
72. Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (Per Wadhwa, J. in Nalini's case - 1999 AIR SCW 1889 :
AIR 1999 SC 2640 : 1999 Crl. L J 3124 at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible."
73. In this context, the Supreme Court made the observations in the case of Noor Mohammad Yusuf Momin V. State of Maharashtra (AIR 1971 SC 885) are worth noting :
"....in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other facts, constitute relevant material."
74. Now, applying the principle as discussed hereinabove in the present case, the deceased Ram Murat, contractor belongs to district Basti, U.P. Accused persons Contin...pg. 58 58 Shailesh Kumar @ Guddu and his brother Alok Kumar and Santosh Kumar also belong to the same village. The inference of the circumstantial evidence drawn is that Ram Murat entered into an agreement orally with accused Shailesh Kumar @ Guddu for purchase of land of 5 Bighas belonging to accused Shailesh @ Guddu for a total consideration of Rs.3,50,000/- in August, 2001. Deceased Ram Murat's account maintained by him since 12.01.82 proved by prosecution Ex.PW-19/A and ledger entries Ex.PW-19/B established beyond reasonable doubt that he had withdrawn Rs.1,30,000/- from his account on 20.07.01 and on 09.08.01. This is corroborated with oral testimony of PW-7 Sanjay S/o. Ram Murat and PW-13 Moidhar, brother of the deceased Ram Murat. The statement of account of deceased Ram Murat further established that on 21.02.08 he had withdrawn Rs.80,000/-.
75. The prosecution further proved beyond reasonable doubt the fact that accused Shailesh @ Guddu and his brother Alok Kumar opened a joint account with the post office, Basti. The application is Ex.PW-29/A, the ledger Contin...pg. 59 59 Ex.PW-29/C having the entries showing that on 26.02.02 Rs.20,000/- were deposited and then on 27.02.02 Rs.10,000/- were withdrawn. Ex.PW-29/B is the other documents of opening of this account. The accused Shailesh @ Guddu and his brother Alok Kumar and Santosh Kumar on 21.02.02 visited the house of deceased Ram Murat is established beyond reasonable doubt on the basis of testimony of PW-3 Ram Avtar and PW-4 Insul Master. These witnesses stated no particular date and time. They are not stating the fact as tutored or planted by prosecution. Their testimony is clear like mirror stating the true facts.
76. In case February month of 2002 is seen, 23th February was Idu'l Zuha. Both witnesses stated that prior to one or two days they saw accused persons in the company of deceased Ram Murat when he was alive lastly. Thereafter, the house of Ram Murat was found locked. The lock was broke opened by police on 28th February when the neighbourer PW-15 Rakesh telephoned to police on finding very foul smell. It is pertinent to mention here that Contin...pg. 60 60 prosecution also proved Ex.P-1 to P-5, five Kisan Vikas Patras of Rs.10,000/- each which were got recovered at the instance of accused Shailesh @ Guddu from his house on 01.03.02. At that moment accused Alok Kumar slipped away from the spot from his native village but later on arrested on 06.03.02. He got recovered the account book of joint account Ex.PY. Furthermore, prosecution also proved newly purchased articles which were seized vide memo Ex.PW-20/F from the possession of accused Santosh on his pointing out. These articles are three sarees Ex.P-1 to P-3, one pant piece brown colour P-4, pant piece cream colour Ex.P-5, shirt piece light yellow colour P-6, one shirt piece of gray colour Ex.P-7, two pants of kid Ex.P-8 and Ex.P-9, two T shirts of orange and grey colour Ex.P-10 and Ex.P-11, two pairs of sandles are Ex.P-12 and comb set is Ex.P-13.
77. Although accused persons examined DW-1 Kaushalya and DW-2 Ekram Hussain. However, the affidavit of DW-1 Kaushalya Devi has of no consequence because bank documents such as account ledger of Ram Murat, joint account of accused Shailesh Kumar and Alok Kumar Contin...pg. 61 61 established only one inference can be drawn that the amount for Kisan Vikas Patras deposited by accused Shailesh @ Guddu is the same amount which was withdrawn by deceased Ram Murat on 21.02.02. These circumstances established beyond reasonable doubt that the conspiracy has been hatched by all the accused persons having common object to commit murder of deceased Ram Murat and his son Chamki, to take money from deceased Ram Murat and also not to part with 5 Bighas of land.
78. The last seen two witnesses PW-3 Ram Avtar and PW-4 Insul Master further established that deceased Ram Murat was last seen in the company of all three accused persons and two or three days prior to Eid. The medical evidence of PW-5 Dr. Akash Jhanjee and PW-23 Dr. Sarvesh Tandon is established that the death of Ram Murat and his son Chamki is result of murder. The interference of the circumstances without any doubt points out towards all the three accused persons. No other person has come as there is a very minute gap of last seen and arrest of accused Contin...pg. 62 62 Shailesh on 01.03.02 as the fact of murder was discovered on 28.02.02.
79. The material on record further established that in pursuance to the common object of the conspiracy accused persons tried to destroy the dead body by placing them in the trunk. It cannot be possible that one alone can commit this kind of double murder which requires two or three persons. The manner in which the dead bodies were hidden and discovered by the police clearly established that the crime must have been committed by at least three persons who are the accused persons in the present case.
80. Hence, on the basis of above observations and discussion, the prosecution also proved beyond reasonable doubt the conspiracy hatched by all the three accused persons with common object to murder deceased Ram Murat and his son Chamki and to disappear the dead bodies. The principle of proving guilt as discussed hereinabove established by prosecution against accused persons beyond reasonable doubt the hypothesis on the Contin...pg. 63 63 cumulative chain up then the chain is complete in all respects then all human probability that crime of murder was committed by accused persons and none else. The evidence proved by prosecution is not only consistent to prove guilt of the accused persons which is inconsistent with their innocence. Hence, in definite tendency unerringly the circumstances inferred guilt and cogently and firmly established beyond reasonable doubt.
81. On the basis of observations as discussed hereinabove, all the three accused persons Shailesh @ Guddu, Alok Kumar and Santosh Kumar are convicted under section 120-B, 302/120-B and 201/120-B IPC. Announced in the open court (SANJAY KUMAR) today dated 26.05.09. Addl. Sessions Judge-05 North-West, Rohini, Delhi.
Contin...pg. 64 64 THE COURT OF SHRI SANJAY KUMAR, ADDITIONAL SESSIONS JUDGE - V, DISTRICT NORTH WEST, ROOM NO. 308, ROHINI COURTS, DELHI Sessions Case No.72/08 FIR No.168/02 Police Station : Saraswati Vihar U/section : 302/120-B/201/34 IPC State through NCT of Delhi.
Versus
1. Shailesh Kumar @ Guddu S/o. Sh. Pateshwari Prasad R/o. Village Pagore, PS Kaptan Ganj, District Basti, U.P.
2. Santosh S/o. Sh. Vishai R/o. Rohta Choraha, Thakudwara, PS Kotwali, District Basti, U.P.
3. Alok Kumar S/o. Sh. Pateshwari Prasad R/o. Village Pagore, PS Kaptan Ganj, District Basti, U.P. Date of Institution : 28.05.02 Date of institution in this Court : 25.11.08 Judgment announced on : 26.05.09 Order on Sentence announced on : 28.05.09 Contin...pg. 65 65 Present : Shri Vipin Sanduja, Ld. APP for State.
All three accused in JC with counsel, Ms. Dolly.
ORDER ON SENTENCE
1. Shri Vipin Sanduja, learned APP for State submits that convict Shailesh, Alok and Santosh are involved in a brutal double murder of Ram Murth and his son Chamki. He further submits that after committing murder they tried to dispose of the dead bodies and kept in a trunk. The dead body of both the deceased persons recovered in decomposed condition. He further submits that all the three convicts may be awarded death penalty.
2. Ms. Dolly, counsel for all the three convicts submits that accused Shailesh and Alok are real brothers. Accused Shailesh is married, having two minor children who are school going. Both brothers are the only bread earner of their poor family. Accused Alok is bachelor and aged 31 years. The accused Santosh is very poor person and bachelor. She further submits that all the three accused persons are not previous convict and through out trial for Contin...pg. 66 66 the last seven years they remained in the imprisonment. She further submits that it is not a case which falls in the category of rarest of rare cases. She finally submits that accused persons may not be awarded capital punishment.
3. I have considered respective submission of both counsels and perused the record. The Supreme Court laid down the fundamental principle for awarding sentence under Section 302 IPC in the case of Bachan Singh Vs. State of Punjab 1980 (2) SC 684. In this case, Supreme Court formulated the rule of rarest of rare cases. This rule was further reiterated by the Supreme Court in the case of Machhi Singh Vs. State of Punjab AIR 1983 (3) SC
470. The illustrative circumstances laid down in this case are as under :
1. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
2. When the murder is committed for a motive which evinces total depravity and meanness; e.g. Murder by hired assassin for money or reward; or cold-
Contin...pg. 67 67 blooded murder for gains for a person vis-a-vis whom the murderer in a position of trust; or murder is committed in the course of betrayal of the motherland.
3. When murder of a member of a Schedules Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride-burning"
or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
4. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
5. When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
4. The Supreme Court in the case of Aloke Nath Dutta and others Vs. State of West Bengal II (2007) Contin...pg. 68 68 SLT 276 reiterated the principle for awarding punishment under Section 302 IPC. In a recent case full bench of Supreme Court in the case of Swami Shraddananda @ Murali Manohar Mishra Vs. State of Karnataka AIR 2008 SC 3040 reiterated the principles for awarding sentence under Section 302 IPC and in paragraph no. 69 observed that :
"In conclusion we agree with the view taken by Sinha J. We accordingly substitute the dead sentence given to the appellant by the trial court and confirmed by the High Court by imprisonment for life and direct that he shall not be released from prison till the rest of his life."
5. Now applying the principles laid down by Surpeme court in the above mentioned case, the present case falls just short of the category of rarest of the rare case. Hence, considering all the facts and circumstances of the present case, I award sentence for commission of offence under Section 120B to undergo Rigorous Imprisonment for life with fine of Rs. 5,000/- to each convict i.e. Shailesh @ Guddu, Alok Kumar and Santosh Kumar and convicts shall not be released from prison till the rest of their life. I further award sentence for offence under Contin...pg. 69 69 Section 302 read with Section 120B IPC to undergo Rigorous Imprisonment for life with fine of Rs. 5,000/- to each convict i.e. Shailesh @ Guddu, Alok Kumar and Santosh Kumar and convicts shall not be released from prison till the rest of their life. I finally award sentence for commission of offence under Section 201 read with section 120B IPC to undergo rigorous imprisonment of 7 years (seven) with fine of Rs. 1,000/- to each convict i.e. Shailesh @ Guddu, Alok Kumar and Santosh Kumar. In case of default in payment of fine all the convicts will further undergo six months simple imprisonment. The benefit of Section 428 CrPC shall be granted to convicts. All sentences shall run concurrently.
6. Copy of judgment be supplied to both convicts free of cost. File be consigned to Record Room.
(SANJAY KUMAR) Additional Sessions Judge-V, Room no. 308, Rohini Courts, Delhi Dated : 28-05-2009 Announced in the Open Court Contin...pg.