Delhi District Court
Sc No. 148/2009 State vs Kishan Tripathi Page No. 1 Of 41 on 4 October, 2012
IN THE COURT OF ADDITIONAL SESSION JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET COURTS:
NEW DELHI
PRESIDED BY : SMT. MADHU JAIN
IN THE MATTER OF
CASE ID No. 02403R0219812009
SESSIONS CASE NO. 148/2009
FIR No. 71/2009
POLICE STATION: OKHLA INDUSTRIAL AREA
UNDER SECTION : 302 IPC
STATE
VERSUS
KISHAN TRIPATHI @ KISHAN PAINTER,
S/O SH. JAIPRAKASH TRIPATHI,
R/O H.NO. 213, HADDU MOHALLA, VILLAGE MADANPUR
KHADAR, NEW DELHI.
DATE OF INSTITUTION : 25.05.2009
DATE OF RESERVING ORDER : 29.09.2012
DATE OF DECISION : 04.10.2012
J U D G M E N T
SC No. 148/2009 State Vs Kishan Tripathi Page No. 1 of 41 Case of Prosecution:
1. On 23.02.2009 Ct. Pawan Kumar No. 2179/SE submitted DD No. 4/A dated 23.02.2009 to ASI Sakhi Ram at Police station Okhla Industrial Area, regarding murder of a person at OIAI, C59 Factory. ASI Sakhi Ram along with Ct. Ram Chander reached at the spot where Sh. Rakesh Bhargava owner of the factory met them. Complainant Rakesh Bhargava told them that dead body of the night guard of the factory namely Sachidanand Jha is lying in the basement of his factory. ASI Sakhi Ram inspected the scene of crime and recorded the statement of complainant Rakesh Bhargava and prepared rukka which was handed over to Ct. Ram Chander for registration of case. After registration of the case, further investigation was carried out by SHO who reached at the spot. Crime team also reached at the spot. Photographs of the spot were taken and finger prints were also lifted from the spot. Dead body was taken to the mortuary and postmortem was got conducted by the investigating officer. Site plan was prepared. Thereafter, IO/SI Girjesh Singh was assigned the investigation of the case. On receipt of secret information, accused Kishan Tripathi was arrested in the case. His disclosure statement was recorded. Accused also pointed out to the places from where he got recovered his blood stained clothes and weapon of offence. Exhibits were sent to the FSL. Statement of witnesses were recorded and after completion of investigation, charge sheet under Section 302/460/201 IPC was filed against the accused in the court.
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2. Since, the offence under Section 302 IPC is exclusively triable by the court of Sessions, therefore after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused:
3. Prima facie case under Section 302 IPC was made out against the accused. Charge under Section 302 IPC was framed against the accused by my Ld. Predecessor vide order dated 30.10.2009 to which accused pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 20 witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material witnesses:
5. PW4 is Rakesh Bhargava, complainant/director of M/s Rakmo Press Private Ltd who stated that he had borrowed the service of security guard from M/s P.S.S. Enterprises who provide them security guards. In their factory, one Mahesh used to work as Security guard in the day and deceased used to work as Security guard in the night. On 23.02.2009, he reached his factory at about 9/9.30 am on receiving a call that one Security Guard has expired. He reached his factory and was told by the factory workers that " Ek security wale ki Laash Padi Hui hai". He informed the police on 100 number. He saw the blood was lying near the gate which leads to their office and blood was lying in the basement also. He identified the dead body as that of the guard Sachidanand Jha. He stated that CCTV Cameras SC No. 148/2009 State Vs Kishan Tripathi Page No. 3 of 41 with recording were installed at his factory premises. He stated to the police that they could check the footage of the CCTV cameras. He further stated in his chief that he noticed that somebody has entered in his office, broken his locker and has stolen Rs. 7,500/ and some documents from the locker. He stated that on seeing the CCTV camera footage, they came to know that accused Krishan Tripathi has committed the offence. He further proved his statement given to the police as Ex.PW4/A and also various memos of the articles which were seized by the police in his factory in his presence.
6. PW15 is Sh. Ram Milan who deposed that he is in the business of CCTV Camera fittings. He has duly supported the case of prosecution and stated that in the CCTV footage he saw one person dragging and killing another person. He further stated that accused present in the court was dragging and killing the guard. He also identified accused Kishan Tripathi in the court. He further stated that he handed over the hard disc of computer to the Investigating officer vide memo Ex.PW7/H. This witness also played the CCTV footage in the court.
7. PW18 is Inspector B.S. Rana who deposed that he along with HC Rajpal, Ct. Sushil, Ct. Pawan , Ct. Ram Chander and driver reached at the spot, prepared site plan Ex.PW17/A, seizure memos Ex.PW17/B to Ex.PW17/G of various articles found at the spot. He stated that he also called the operator of CCTV Camera and asked him to play the recording. Complainant identified the accused Kishan Tripathi in the CCTV footage hitting deceased Sachidanand Jha.
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8. PW19 is SI Girjesh Singh, second Investigating officer of the case. He arrested the accused, recorded his disclosure statement and conducted the further investigation. He has proved all the memos etc. prepared by him during the investigation of the case.
Formal witnesses:
9. PW2 is SI Mahesh Kumar, Draughtsman who prepared the scaled site plan Ex.PW2/A.
10. PW3 is ASI Jawahar Singh, Duty officer who registered the case FIR Ex.PW3/A.
11. PW5 is Constable Sumer Singh who delivered the copy of FIR to Senior police officials.
12. PW6 is Manoj Kumar Jha, brother in law of deceased who stated that his brother in law Sachidanand Jha was murdered on the night of 22/23.02.2009. He identified the dead body of his brother in law vide Ex.PW6/A.
13. PW7 is HC Rajpal Singh who stated that he along with SHO and other police officials reached at the spot, inspected the scene of crime and saw the CCTV Camera footage and has duly proved on record seizure memos Ex.PW7/A to Ex.PW7/H.
14. PW8 is SI Avdesh Kumar who stated that he compared the chance prints with the finger prints of five persons Manoj Thakur, Vhibas Mishra, Rudal Singh, Rakesh Bhargava and Kishan Tripathi and proved his report as Ex.PW8/A.
15. PW9 is HC Ram Chander who deposed that on 27.02.2009 he made SC No. 148/2009 State Vs Kishan Tripathi Page No. 5 of 41 entries in register No. 19 Ex.PW9/C of six sealed pullandas which were deposited by the Investigating officer in the Malkhana and the said exhibits/pullandas were sent to FSL, Rohini vide Ex.PW9/D.
16. PW10 is Krishan Kant Jha, son of deceased Sachidanand Jha who identified the dead body of his father/deceased vide memo Ex.PW10/A.
17. PW11 is Ct. Anand, Photographer, Mobile Crime Team who took photographs of the scene of crime and proved the same on record as Ex.PW11/A1 to Ex.PW11/A47.
18. PW12 is Ct. Harender who has deposed on the line of PW19.
19. PW13 is Smt. Sushila, tea vendor who stated that she had seen accused Kishan Tripathi at the gate of Factory No. C59, Okhla Industrial Area, New Delhi two days prior to the incident. She further stated that owner of the factory Sh. Rakesh Bhargava also came there and asked the accused as to what he was doing there and asked him to go from there.
20. PW14 is Ct. Harender whose statement has already been recorded as PW12. His statement was inadvertently again got recorded as PW14.
21. PW16 is HC Ram Chander who reached at the spot along with ASI Sakhi Ram. He stated that Investigating officer recorded the statement of complainant Rakesh Bhargav and prepared rukka and handed over the same to him for registration of case. After the registration of the case, further investigation of the case was assigned to Inspector B.S. Rana. On the instructions of the Investigating officer, postmortem of the dead body was got conducted by him.
SC No. 148/2009 State Vs Kishan Tripathi Page No. 6 of 41 After the postmortem Doctor in the hospital handed over to him two sealed pullandas which along with the sample seal of the hospital he handed over to Investigating officer vide Ex.PW16/A.
22. PW17 is SI Mahender Singh who deposed that on the instructions of Investigating officer B.S. Rana he collected 15 exhibits duly sealed and deposited the same in FSL , Rohini.
23. PW20 is SI Sakhi Ram who along with Ct. Pawan Kumar reached at the spot, inspected the scene of crime, recorded the statement of complainant, initiated proceedings under Section 174 of Cr.P.C., got conducted the postmortem of the deceased and has duly proved all the memos in this regard. Medical Witnesses:
24. PW1 is Dr. Susheel Sharma who conducted the postmortem on the dead body of the deceased and proved his report Ex.PW1/A. He also gave the subsequent opinion Ex.PW1/B regarding the weapon of offence. Statement & Defence of accused:
25. Statement of accused under Section 313 Cr.P.C was recorded wherein accused denied the case of the prosecution and stated that he is innocent. He stated that he was never shown the CCTV footage and he was at Jahangirpur with the workers when he was arrested. He further chose to lead evidence in his defence.
26. DW1 is Sh. Ravinder Pandey who stated that on 26.02.2009 police officials came at his house and took him and accused Kishan Tripathi into custody. Police officials took them to Police post Modi Mill, NOIDA. They locked accused SC No. 148/2009 State Vs Kishan Tripathi Page No. 7 of 41 Kishan Tripathi in the lock up and left him( i.e. DW1) at about 10/11 am on 27.02.2009.
27. DW2 is HC Om Prakash who brought the PCR Register of Police station Jahangirpuri and proved on record DD No. 3B Ex.DW2/A and DD No. 34B Ex.DW2/B regarding the apprehensions of two youths.
28. DW3 is Dr. Kamlesh who stated that patient was referred from Tihar Jail in December 2009 and was examined by Dr. Dheeraj at Gurunanak Eye Center OPD. The patient complained about Squint since birth and also gave the history of decrease vision at night. He was diagnosed with Alternate Convergent Squint and was admitted on 09.02.2010. Patient Kishan Tripathi had undergone surgery on 11.02.2010 and was discharged on 12.02.2010 after his squint was fully corrected. DW3 has further proved on record OPD card Ex.DW3/A, discharge summary Ex.DW3/B and another OPD ticket Ex.DW3/C of patient Kishan Tripathi.
29. I have heard Ld. Defence counsel for the accused and Ld. APP for the state and have carefully perused the record.
Arguments of Ld. APP for state:
30. Ld. Additional Public Prosecutor for state argued that the ocular evidence, the medical evidence as well as the scientific evidence available on judicial record prove the case of prosecution beyond reasonable doubt that none else, but accused Kishan Tripathi is guilty of murder of Guard Sachidanand. Ld. Additional Public Prosecutor for State relied upon the testimony of complainant PW4 and argued that the complainant PW4 Sh. Rakesh Bhargav has fully SC No. 148/2009 State Vs Kishan Tripathi Page No. 8 of 41 supported the case of the prosecution on the lines of his complaint as well as the statement made to the police. Ld. Additional Public Prosecutor for State further argued that PW4 Sh. Rakesh Bhargav has correctly identified the accused Kishan Tripathi in CCTV Footage on the day of incident and he also correctly identified the accused while watching the CCTV Footage being displayed in Court on 13.07.2011 and has specifically deposed that "he identifies accused Kishan Tripathi killing Sachidanand Jha, Security Guard in the CCTV Footage". Ld. Additional Public Prosecutor for State further argued that there can be no doubt on identification of the accused by PW4 Rakesh Bhargav because accused Kishan Tripathi used to work as Painter at the house as well as at the factory of the complainant for last about 4 / 5 years prior to the incident and it is also worth mentioning that two days prior to the incident at about 8.30 PM, the complainant Sh. Rakesh Bhargav had seen the accused standing outside his factory. Ld. Additional Public Prosecutor for State further argued that the fact that accused was standing outside the factory of complainant at 8.30 PM two days prior to the incident finds corroboration independently from the testimony of PW13 Smt. Sushila, who is running a tea stall near the spot i.e. factory of complainant bearing No. C59, Okhla Industrial Area.
That the Ld. Additional Public Prosecutor for State further argued that after the arrest, the accused disclosed about his wearing apparel which he was wearing at the time of murder and also disclosed about the weapon of offence used for committing murder and in pursuance of said disclosure, the accused led the SC No. 148/2009 State Vs Kishan Tripathi Page No. 9 of 41 police team to his residential house where from he got recovered the blood stained socks and shoes and also led the police team to the spot where he got recovered the blood stained blade of knife and blood stained Tlike iron rod from the basement. The Ld. Additional Public Prosecutor for State emphasized upon that said recovery effected at the instance of accused is admissible u/s. 27 of the Indian Evidence Act. The Ld. Additional Public Prosecutor for State also emphasized upon the fact that the blood was detected upon the socks, upon the Tlike iron rod and the blade of the knife by the FSL Expert in his report admissible under Section 293 of Cr.P.C.
The Ld. Additional Public Prosecutor for State further argued that PW1 Dr. Sushil Sharma, who conducted postmortem on the dead body of Guard Sachidanand has described the sizes of injuries in his detailed report Ex.PW1/A and opined that injury No. 1 had been caused by pointed and sharped edged weapon individually sufficient to cause death and injury No. 5, 6 and 8 caused by sharp edged weapon and injuries No. 2, 3, 4, 7, 9, 10, 11 and 12 caused by blunt force impact collectively sufficient to cause death. The Ld. Additional Public Prosecutor for State has also drawn the attention of this Court towards the subsequent opinion given by the doctor, who examined the blade of knife in question and compared the same with the injuries mentioned in the postmortem report and opined that "after examination, I am of the considered opinion that injury No. 1, 5, 6 and 8 mentioned in the postmortem report could be possible by this knife".
That Ld. Additional Public Prosecutor for State also relied upon the SC No. 148/2009 State Vs Kishan Tripathi Page No. 10 of 41 testimony of PW8 SubInspector Avdesh Kumar, Finger Print Expert, who compared seven chance prints lifted from the scene of crime by the District Crime Team with the specimen finger print of five persons supplied to him and found that the chance print Mark Q2 is identical with the left thumb impression of the accused. The Ld. Additional Public Prosecutor for State concluded the arguments by submitting that the perusal of entire evidence on judicial record leads to the only inference that it was accused Kishan Tripathi only who killed guard Sachidanand. Arguments of Ld. Defence Counsel for accused:
31. On the other hand, Ld. Defence counsel argued that the whole case of the prosecution can be divided into two parts. First part is of dated 23.02.2009 when the murder of Sachidanand Jha took place and the other part is of dated 27.02.2009 when the accused was arrested and at his instance as per the case of prosecution the weapon of offence i.e. knife and T Guard and clothes as well as shoes of the accused were recovered. He argued that for the purpose that accused committed murder of deceased the prosecution has relied upon heavily on the CCTV footage which was installed at the factory premises at the time of offence. He argued that the CCTV footage is forged and fabricated one. The CD's were not immediately seized by the IO which creates a doubt about the manipulation in the same. He further argued that in the court two CD's were produced whereas witnesses have stated that only one CD was seized and the production of the second CD as per the order sheet 15.09.2009 creates doubt on the case of the prosecution. He further argued that face of the accused is nowhere visible in the SC No. 148/2009 State Vs Kishan Tripathi Page No. 11 of 41 CD and he has been identified only by the goggles by PW7 and not by face. In the CD's there is no dead body visible and it is only a bundle of papers which is visible. Accused is nowhere visible in the CD's and witnesses are tutored one. He further argued that police was not able to recover any weapon used to break /open the Tijori. He further argued that there is delay in the registration of FIR. As per the police officials accused was arrested from the public place but no public persons have been joined at the time of his arrest and also at the time of recovery of articles at his instance. He further argued that witnesses have also admitted that there was a Nala near the Anath Ashram and it is impossible that accused did not threw his clothes in the Nala and instead he concealed the same in the bushes. He further argued that accused is suffering from night blindness and has also examined one DW3 Dr. Kamlesh, Professor from Guru Nanak Eye center in support of his defence. Accused was arrested from Jahangir puri and not from the Anath Ashram and whole story of the prosecution is false to falsely implicate the accused.
Conclusion:
32. Section 300 IPC defines murder as :
300. Murder" Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the SC No. 148/2009 State Vs Kishan Tripathi Page No. 12 of 41 death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly. If the person committing the act knows that is is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Essential ingredients:
Culpable homicide is murder if the act by which death is caused is done with any of the intentions or knowledge mentioned below:
(a) Intention of causing death.
(b) Intention of causing such bodily injury as the offender knows to be likely to cause the death of person to whom harm is caused.
(c) Intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
(d) Knowledge that the act is imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, the act having been committed without any excuse for murdering, the risk of causing death SC No. 148/2009 State Vs Kishan Tripathi Page No. 13 of 41 or such (bodily) injury as aforesaid.
33. In the case in hand, prosecution has relied heavily upon two main evidence against the accused i.e. the CCTV footage having the whole incident in the Camera and the recovery of the weapons of offence and clothes of the accused at the instance of the accused after his arrest.
CCTV footage depicting the whole incident and its admissibility:
34. PW4 is Sh. Rakesh Bhargav owner of the printing press in whose factory murder of the guard Sachidanand Jha took place. He deposed that he has borrowed the service of Security Guards from M/s P.S.S. Enterprises and Shri Mahesh used to work as Security Guard in the day and Sh. Sachidanand used to work as Security Guard in the night in his factory situated at C59, Okhla Industrial Area, New Delhi. He further stated that on 22.02.2009, his factory was closed due to Sunday. Some workers of Sh. Munna contractor were doing work and at around 5.30 pm they left the factory. He was at his home as it was Sunday. On 23.02.2009 on receiving a call that one security guard has expired he reached his factory at about 9/9.30 am. He was told by the workers in his factory that " Ek security Wale Ki Laash Padi hui hai". He informed the police on 100 number . He saw blood was lying near the gate which leads towards his office. Thereafter, he noticed that dead body was lying in the basement. The dead body was covered with compressor. He further deposed that he told the police that CCTV cameras with recording was installed in his factory and they can check the footage of the CCTV cameras. Police asked him to call the camera installer and checked the CCTV SC No. 148/2009 State Vs Kishan Tripathi Page No. 14 of 41 camera footage. He also noticed that his office glass was broken and somebody had entered in his office who had broken his locker and Rs. 7,500/ and some documents were stolen from the office locker. On seeing the CCTV footage, PW4 came to know that accused Kishan Tripathi has committed the offence. He lodged his complaint Ex.PW4/A to the police. In his complaint Ex.PW4/A lodged with the police this fact has been mentioned by PW4 that inside the factory in the basement in one corner the dead body of guard is lying. In his complaint made to the police officials, PW4 had also stated that they had installed the CCTV camera in their factory. PW4 in the court has clearly stated that after they saw the CCTV footage they came to now that accused Kishan Tripathi has committed the offence. PW4 has further stated that he was knowing the accused Kishan Tripathi for about 45 years prior to the incident as he used to work as painter at his house, nearby houses and also in his factory. One month prior to the incident, accused has worked in his factory and he paid him Rs. 500/. Thereafter, two days ( saturday) prior to the incident accused was standing outside his factory at about 8.30 pm when he came out for going to home. PW4 asked him as to why he was standing but accused kept mum and went away.
35. PW4 Sh. Rakesh Bhargav in his testimony recorded on oath in the court on 13.07.2011 has stated as under: " I have watched / seen the CCTV footage ( comprising channel 01 and channel 02) displayed in the court. Channel 01 shows the footage of the main gate whereas channel 02 shows the footage of the basement. After seeing the SC No. 148/2009 State Vs Kishan Tripathi Page No. 15 of 41 CCTV footage the witness states that he identifies the accused Krishan Tripathi killing Sachidanand Jha, Security Guard in the CCTV footage. At about 4.45 pm on 22.02.2009 the guard, namely, Sh. Mahesh Kumar gave the entry to accused Kishan Tripathi into my factory. The accused Kishan Tripathi is seen in sleeveless white colour sweater in the footage."
On the same day he has deposed further as under: " At about 4.30 am on the intervening night of 22/23.02.2009 the accused Kishan Tripathi is seen dragging the body of the guard Sh. Sachidanand Jha ( deceased ) to the basement from the ground floor and gave leg kick blows and after that he put the heavy air compressor on the dead body of the guard at about 4.20 am. After that he again gave kick blows on the body of deceased guard at about 4.23 am and kept the knife back into his pocket at about 4.24 am and thereafter, put the printing paper on the dead body. The accused put off his spectacles at about 4.24 am and cleaned the same. Thereafter, at about 4.26 am the accused picked up Tiron rod and again gave blows on the body of deceased guard by the said Tiron rod. The accused Kishan Tripathi checked the breathing of the dead body twice /thrice from about 4.30 am to 6 am . The accused changed his wearing apparel inside the factory and worn/put on the clothes of the workers kept in the factory and thereafter, the accused took out the keys of the main door from the pocket of the deceased guard and left the factory at about 6 / 6.04 am by opening the main gate."
36. PW4 further stated that the investigating officer collected one Hard SC No. 148/2009 State Vs Kishan Tripathi Page No. 16 of 41 disc from the CPU of the computer and sealed the same in the white cloth and prepared the pullanda. He further stated that all the other articles like compressor, Tijori, the blood stained shoes were also seized by the Investigating officer. From the testimony of this witness it is clear that Hard disc from CPU of computer was immediately sealed by the Investigating officer. CCTV camera footage was also displayed in the court before my Ld. Predecessor on 12.07.2011 and thereafter on 13.07.2011 as is clear from the proceedings of the case on that day. Not only in his examination in chief but also in his cross examination recorded on 16.08.2011 this witness has stated as under: "Q. After seeing the CCTV footage, in which particular portion you identified the accused.
A. I have seen the accused in CCTV footage while entering the factory, dragging and hitting the deceased and thereafter, when the accused was leaving the factory etc."
In the cross examination recorded on the same day PW4 has deposed as under: " When we started watching the CCTV footage it was showing the present position of that time. We started rewinding the camera and we saw the accused hitting the dead body and we again rewinded and watched till the accused Kishan Tripathi entered the factory. It took about two and half/three hours in watching the CCTV footage. Thereafter, the police recorded my statement. I had told the IO in my statement that the accused Kishan Tripathi was seen killing the SC No. 148/2009 State Vs Kishan Tripathi Page No. 17 of 41 guard. Confronted with statement Ex.PW4/A where it is not so recorded. However, the factum that the CCTV cameras are installed on the main gate and the basement is mentioned in the statement.
Court observation: The police recorded two statements of this witness on 23.02.2009 and the reply to the question of Ld. Defence counsel regarding watching of CCTV footage, i.e. " I had told the IO in my statement that the accused Kishan Tripathi was seen killing the guard" finds mention in the second statement now Ex.PW4/DA recorded on 23.02.2009 itself."
37. PW4 has been cross examined at length in the court but nothing material has come out of his cross examination. A suggestion has been given to the witness that on Friday i.e. two days prior to the incident his wife had arranged /organized the Jagaran / Mata ki Chauki but he has denied this fact. Another suggestion has also been given to PW4 that he has gone to Vrindavan on Friday which also he has denied. This fact is hard to believe that a person in whose house Jagaran Mata ki Chowki is organized will leave for Vrindawan and shall not be present at his home for Mata ki Chowki / Jagran. In his statement under Section 313 Cr.P.C accused has nowhere stated that Rakesh Bhargav organized a Mata Ki Chowki/Jagran on Friday i.e. two days before the incident and for this purpose his wife told him to bring a table which he had bought for Rs. 1,000/ from Sharma Timber Store. No such plea has been taken by the accused in his statement recorded under Section 313 Cr.P.C.
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38. During further cross examination a suggestion has been given to PW4 that wife of Rakesh Bhargav asked the accused to come the next day for taking Rs. 1,000/ as PW4 was not available at home. Another suggestion has been given to PW4 that he came back home from Vrindawan on the following Saturday and from home he went to his office or that his wife had asked the accused to see him in the office for taking Rs. 1,000/ which has been denied by PW4. But this sug gestion itself shows that accused is admitting his presence in the factory on the Sat urday night. PW4 in his examination in chief has stated that on Saturday accused Kishan Tripathi was standing outside his factory at about 8.30 pm. He came out to go back to his home and saw the accused standing there. This testimony of PW4 finds corroboration from the suggestion given by the accused himself to PW4. In a way accused has admitted this fact that he had gone to see PW4 in his office on Saturday. Though, PW4 has denied the suggestion that accused came to his office for taking Rs. 1,000/ but he himself volunteered that accused was standing outside his factory office at 8.30 pm when he was coming out from his factory on saturday night.
39. There is one more independent witness i.e. PW13 Smt. Sushila, Tea vendor. She stated that she put raidi near Factory No. C59, Okhla Industrial Area, New Delhi and two days prior to the incident at about 8 pm she saw accused Kis han Tripathi standing at the gate of the factory No. C59, Okhla Industrial Area, New Delhi. Accused used to do the work of white washing / painting in the area near the factory. At that time, the owner of the factory Sh. Rakesh Bhargava also SC No. 148/2009 State Vs Kishan Tripathi Page No. 19 of 41 came there and asked the accused what he was doing there and told him to go from there. PW13 is an independent witness . There is no reason to disbelieve her testi mony. Nothing material has come out of her cross examination. No suggestion has been given to her that she had some prior enmity with the accused for that she had deposed falsely against the accused. She has stated that she has been selling tea near the factory No. C59, Okhla Industrial Area, New Delhi for the last 18 years. No doubt she is unable to tell the names of the customers who had cherished tea at her stall on the day she saw the accused but her inability to remember the names of the customers does not throw any doubt on her testimony. Accused is a painter and he used to do painting at the factory and house of PW4 Rakesh Bhargav, as de posed by PW4 and as admitted by the accused in his statement under Section 313 of Cr.P.C. PW13 was also sitting outside the factory for last so many years and therefore there is no reason to disbelieve her testimony to the effect that she saw ac cused standing outside the factory two days prior to the incident.
40. Ld. Defence counsel further argued that though he is not disputing death of deceased i.e. guard namely Sachidanand Jha but no dead body was found on the spot or was visible in the CCTV footage. It was only a bundle of papers which was lying on the spot. On the other hand Ld. APP for state argued that in order to hide the dead body accused made every efforts that it should not be visible and hide the dead body in a corner in the basement of the factory and thereafter he put the air compressor as well as bundle of papers on the same so that at first sight the dead body appeared to be only a bundle of papers. From the testimony of SC No. 148/2009 State Vs Kishan Tripathi Page No. 20 of 41 PW4 it is clear that the blood marks were found on the staircase and were visible near the gate which leads towards the office. Thereafter, dead body was lying in the basement. PW4 has clearly stated that he has seen accused Kishan Tripathi in the CCTV footage putting heavy air compressor on the dead body of the guard at about 4.20 am. Thereafter, again he put the printing paper on the dead body. From his testimony it is clear that in order to hide the dead body of deceased, accused himself put the bundle of papers on the same and thereafter also put the heavy air compressor on the dead body. Thus, not only the bundle is visible in the CCTV footage but also the whole incident minute by minute done by the accused is recorded in the CCTV footage which has been duly proved on record by the prosecution.
41. Second limb of the arguments of the Ld. Defence counsel were that the CCTV footage comprised in the CDs which had been displayed in the court is forged and fabricated one and it was not seized immediately by the police officials and there is tampering in the CDs which makes the CCTV footage unreliable. On the other hand Ld. APP for the state argued that, after checking the CCTV footage and after identifying the accused in the same the Investigating officer sealed the same in the factory itself at the very first instance. The same CCTV CD was displayed in the court and there was no tampering in the same.
42. Hon'ble Delhi High Court in case titled as State Vs Mohd. Afzal & Ors. 2003 VII AD (Delhi) 1 has laid down that: " Thus, computer generated electronic records is evidence, SC No. 148/2009 State Vs Kishan Tripathi Page No. 21 of 41 admissible at a trial if proved in the manner specified by Section 65B of the evidence act.
Subsection (1) of Section 65 B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer , subject to the fulfillment of the conditions specified in subsection (2) of Section 65B. Following are the conditions specified by sub section (2):
(a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period , ad relates to the period over which the computer was regularly used;
(b) Information was fed in the computer in the ordinary course of the activities of the person having lawful control over the computer;
(c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;
(d) Information reproduced is such as is fed into computer in the ordinary course of activity.
Under subsection (3) of Section 65B, subsection (1) & (2) would apply where single or combination of computers is used SC No. 148/2009 State Vs Kishan Tripathi Page No. 22 of 41 for storage or processing in the regular course of activities and the computers used shall be construed as a single computer. Under subsection 4 of Section 65B, if evidence is desired to be led under Section 65B, it would be admissible if a certificate is tendered, signed by a person either occupying a responsible official position in relation to the computer or being in the management of the relevant activities; provided the following is certified:
(a) electronic record containing the statement is identified with description of how it was produced;
(b) that electronic record was a computer print out generated by a advice particulars whereof are given;
(c) deals with matters to which conditions in subsection(2) relate. Under subsection (5), information shall be taken to be supplied to a computer by means of an appropriate equipment, in the course of normal activities intending to store or process it in the course of activities and a computer output is produced by it whether directly or by means of appropriate equipment.
The normal rule of leading documentary evidence is the production and proof of the original documents itself. Secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act. Under subclause "d" of Section 65, Secondary evidence of the contents of a documentary can be led when the original is of such a nature as not be easily movable. Computerized SC No. 148/2009 State Vs Kishan Tripathi Page No. 23 of 41 operating systems and support systems in industry cannot be moved to the court. The information is stored in these computers on magnetic tapes ( hard disc). Electronic record produced therefrom has to be taken in the form of a print out. Subsection (1) of Section 65B makes admissible without further proof, in evidence, print out of a electronic record contained on a magnetic media subject to the satisfaction of the conditions mentioned in the section. The conditions are mentioned in subsection (2). Thus, compliance with subsection (1) and (2) of Section 65B is enough to make admissible and prove electronic records. This conclusions flows out, even from the language of subsection (4). Subsection (4) allows the proof of the conditions set out in subsection (2) by means of a certificate issued by the person described in subsection(4) and certifying contents in the manner set out in the subsection. The subsection makes admissible an electronic record when certified that the contents of a computer print out are generated by a computer satisfying the conditions of subsection (2) , the certificate being signed by the person described therein. Thus, subsection(4) provides for an alternative method to proved electronic record and not the only method to prove electronic record.
Whether section 65B casts a positive mandate on the person relying upon electronic record to adduce affirmative evidence that at all material time the computer was working properly when information was being fed in it, and whether on facts, the computer generated call details have to be ignored due to alleged malfunctioning?"
SC No. 148/2009 State Vs Kishan Tripathi Page No. 24 of 41 The last few years of the 20th century saw rapid strides in the field of information and technology. The expanding horizon of science and technology threw new challenges for the ones who had to deal with proof of facts in disputes where advanced techniques in technology was used and brought in aid. Storage, processing and transmission of date on magnetic and silicon medium became cost effective and easy to handle. Conventional means of records and data processing became out dated. Law had to respond and gallop with the technical advancement. He who sleeps when the sun rises, misses the beauty of the dawn. Law did not sleep when the dawn of Information and Technology broke on horizon. World over, statutes were enacted. Rules relating to admissibility of electronic evidence and its proof were incorporated.
Did the law relating to admissibility and proof of electronic record have a positive mandate to be satisfied by the one who relies upon electronic record? The positive mandate being to establish positively that there was no malfunctioning of the equipment processing the operations at the relevant time, to which the record relates.
Thus, in the context of Section 65 B (2) (C) the condition that throughout the material part of the period to which the computer operations related, the computer was operating properly has to be complied with. Thus, in our opinion, is the only practical way to deal with computer generated evidence unless the response is by way of a challenge to the accuracy of computer evidence on the ground of misuse of the system or operating failure or interpolation. Such SC No. 148/2009 State Vs Kishan Tripathi Page No. 25 of 41 challenge has to be established by the challenger. Generic and theoretical doubt by way of smoke screen have to be ignored.
43. In the case in hand, the Hard disc has been immediately seized by the Investigating officer. The print out from the hard disc i.e. two CD's have been taken up and as laid down in the aforesaid judgment the challenge regarding the forgery or manipulation in the CD's has to be established by the challenger as Section 65B casts a positive mandate on the person relying upon electronic record to adduce affirmative record that at all material time computer was working properly when information was fed in it. PW15 is the installer who installed the CCTV camera. No suggestion has been given to the witness that when the hard disc was seized by the Investigating officer in his presence the same was tampered with or the CD showing the incident are tampered with. The only suggestion given to this witness is that face of the accused was not visible in the CCTV footage which he has denied.
44. In the case in hand, neither to PW4 nor to PW15 any suggestion has been given that there was some defect in the operation of the computers or that the computer was not used regularly to store or process the incidents in the factory or that the information was not fed in the computer while it was regularly used in the factory or that the CCTV footage or CD's were not accurate. Thus, the plea taken by the Ld. Defence counsel that CCTV footage or CD's are manipulated one does not hold good in view of the above said discussion.
45. Further arguments of the Ld. Defence counsel for accused is that the SC No. 148/2009 State Vs Kishan Tripathi Page No. 26 of 41 CDs were not sealed properly and they were never supplied to the accused. He has brought to the notice of the court orders dated 15.09.2009 and 10.07.2009 passed by the Ld. Predecessor of this court and submits that from the order sheets also it is clear that the CDs have been forged one and manipulated. I have perused the record. As per the order sheet dated 10.07.2009 the case was received after committal in the Sessions court and it was observed by the presiding officer that 2 punched CDs have also been received. In the order sheet dated 15.09.2009 it is clearly mentioned that on 24.08.2009 accused has moved an application for supply of CD's as well as copy of Thumb impression of accused taken by the prosecution at the spot as well as copy of thumb impression of the accused taken in the police station for doing comparison and CFSL report. Vide detailed order dated 24.08.2009 the application of the accused was dismissed and that order became final as it was never challenged by the accused. Subsequently, on 15.09.2009, accused again took the plea regarding the supply of CDs and it was ordered by the court that already the stage of supply of copies is over but in interest of justice Ld. Predecessor of this court ordered to supply the copy of the CDs to the accused. In such circumstances, the plea of the counsel for accused that CDs were not supplied to him or that same are manipulated one bears no force.
46. PW15 is Ram Milan who has a business of installation of CCTV cameras. He has stated that he is in the business of CCTV cameras. On 23.02.2009 on the instructions of Investigating officer he reached at the spot i.e. C59, Okhla Industrial Area, Delhi and watched the CCTV footage along with SC No. 148/2009 State Vs Kishan Tripathi Page No. 27 of 41 other persons present there. In the CCTV footage he saw one person dragging and killing a person. PW15 identified the said person as the accused present in the court who was dragging and killing the guard / deceased Sachidanand Jha whose name he came to know later on while watching CCTV footage. He stated that he took out the Hard Disc from the computer and handed over the same to the Investigating officer vide Ex.PW7/A. He was also called in the court to display the CCTV footage and he accordingly displayed the CCTV footage before the court. From the cross examination of PW15 also nothing material has come out. He was informed by the workers and he came at the spot and played the CCTV footage to the police officials. He further stated that Hard Disc was seized and sealed by Inspector B.S. Rana. PW18 is Inspector B.S. Rana who seized the Hard Disc. No suggestion has been given to PW18 that he manipulated or forged the Hard Disc or that no such Hard Disc was seized by him.
47. Ld. Defence counsel further argued that there is delay in the registration of FIR as incident was reported to the Investigating officer at about 9/9.30 am whereas FIR has been registered at about 11.45 am. In the case in hand, PW4 has deposed that he gave information to the police station at about 9/9.30 am whereas as per FIR Ex.PW3/A the information was sent to the police station at about 11.45 am. Even if, for arguments sake we take testimony of PW4 as true and correct version still there is no delay in the recording of FIR. After receiving the information, police officials reached at the spot and inspected the scene of crime. In the rukka it is mentioned that blood was found in the stairs of the factory SC No. 148/2009 State Vs Kishan Tripathi Page No. 28 of 41 and the same blood spots were going towards the basement where there were marks of dragging and subsequently, in the basement between the air compressor machine and bundle of papers in a narrow space dead body of deceased was lying. This shows that police officials inspected the site and thereafter prepared rukka which was sent for registration of the case. In all these proceedings, about one or two hours must have been taken by the police officials. In such circumstances there is no delay in recording of the FIR.
48. Counsel for the accused argued that PW7 has identified accused not by face but only by his spectacles. PW7 in his testimony recorded on oath in the court on 31.01.2011 has stated as under: " IO was watching the CCTV footage 45 minutes prior to time when I started watching the same. In the CCTV footage none else except accused having spectacles was found."
From this testimony of PW7 it is clear that PW7 has clearly stated that in the CCTV footage none except the accused having spectacles was found. It is not that PW7 has deposed that he identified the accused by his spectacles only rather from his testimony it is clear that accused was wearing spectacles and it was none else but the accused in the CCTV footage wearing spectacles which was found. There is no reason to disbelieve the testimony of PW7 and nothing material has come out of his cross examination.
49. PW6 Manoj Kumar Jha, brother in law of deceased Sachidanand Jha who has duly identified the dead body of his brother in law vide Ex.PW6/A. PW10 SC No. 148/2009 State Vs Kishan Tripathi Page No. 29 of 41 Krishan Kant Jha has also identified dead body of his father/deceased namely Sachidanand Jha vide Ex.PW10/A. Thus, the identification of the dead body also stands duly established on record by the prosecution.
Arrest of the accused and recovery of the weapon of offence at the instance of the accused:
50. As per the case of the prosecution, after seeing the CCTV footage there remained no doubt that it was accused Kishan Tripathi who committed murder of the night guard Sachidanand Jha at C59, Okhla Industrial Area, New Delhi. PW19 SI Grijesh Singh stated that on 25.02.2009 he was assigned the investigation of the case. On 27.02.2009 he along with Ct. Brijpal, Ct.Sanjeev, Ct. Balbir and Ct. Harinder left the police station at about 8.45 am in search of the accused Kishan Tripathi. They reached Jahangir puri as they were having information that the accused could be found in Jahangir puri. As per the information, they raided the premises but accused could not be found. They came to know from a secret informer that accused will come to Madan Pur Khadar, Haddu Mohalla via Anath Ashram, Sarita Vihar. PW19 along with other police officials reached at Anath Ashram and hide themselves by the side of bushes and started waiting for the accused. At about 3 pm, accused Kishan Tripathi came from the side of ring road and was apprehended on the pointing out of secret informer near Anath Ashram. He interrogated the accused in which accused confessed his guilt. Accused was arrested and his disclosure statement was recorded. In pursuance of the disclosure statement the accused took out Rs. 1150/ from the SC No. 148/2009 State Vs Kishan Tripathi Page No. 30 of 41 right pocket of his pant. He also led them to bushes behind the Anath Ashram and got recovered his blood stained pant. Thereafter, he took them to his house at H.No. 213, Haddu Mohalla, Madanpur Khadar from where he got recovered one pair of shoes and socks from under the bed lying on the floor. Both the shoes and socks were blood stained. The accused further told that shirt and sweater have been washed by him but after washing also blood stains were still visible on the Shirt and Sweater. PW19 got removed shirt and sweater of the accused and sealed the same. Accused further led them to the factory and further got recovered the T rod and one blade of knife from inside the bundle of papers in the basement of the factory and which was also seized by PW19.
51. Ld. Counsel for accused argued that witness has admitted that there was a Nala near the bushes at Anath Ashram. He argued that if the accused wanted to throw away the clothes he would not have hidden them near the bushes behind the Anath Asharam but would have thrown them in the Nala. Ld. APP for the state argued that it is possible that accused tried to throw his pant in the Nala but the same got entangled near the bushes from where it was recovered by the police. Arguments of Ld. APP for state bears force. Human psychology of a person after the commission of offence works differently for different persons. It is possible that as accused belonged to the poor strata of the society, therefore, he did not throw away his sweater and shirt in the Nala and instead he hide the pant in the bushes for the fear of being caught and washed his sweater and shirt so that he can wore them again. The pant also he did not threw in the Nala as it is possible that he SC No. 148/2009 State Vs Kishan Tripathi Page No. 31 of 41 might have thought of using the same after some time. So far as sweater and shirt are concerned, in fact accused was wearing them at the time of his arrest. Not only this, he also got recovered the Trod and one blade of knife from the factory where he committed the offence. Ld. Defence counsel argued that PW4 Rakesh Bhargav in his testimony has clearly stated that they washed the factory thoroughly before starting the factory. Police inspected the factory properly and no Trod or knife was recovered by the police at that time. Subsequently, the same has been planted by the police in order to falsely implicate the accused. PW4 is running a printing press at C59, Okhla Industrial Area, Delhi. He admitted that they purchase lot of bundle of papers for the use in the printing press and accused has also used these bundle of papers to hide the dead body. In one of the bundle of papers he hide the knife and the Trod which could not be recovered by the police at the time of inspection of the factory or by the factory workers and for this no adverse inference can be drawn. Both the knife and Trod have been recovered at the instance of the accused later on. Accused used to do painting work in the factory and was aware of the whole topography of the factory. There were bundles and bundles of paper lying in the factory. It was not possible for the police or the workers of the factory to go through the each bundle as they were also not aware that accused had hidden the knife and Trod underneath the bundles of papers. It was accused only who concealed the knife and Trod at the place which was known to him only and therefore he was able to get the same recovered. The other workers working in the factory, the factory owner or police officials were not able to recover the knife or T SC No. 148/2009 State Vs Kishan Tripathi Page No. 32 of 41 rod from the bundle of papers as they have not concealed the knife or Trod there. It was accused only who had concealed the same at a specific place in the factory which was in his knowledge only and therefore it was he only who was able to get them recovered. Under the provision of Section 25 of Indian Evidence Act the disclosure made by the accused to the police officials is not admissible in evidence until and unless recovery of a fact or thing has been made in consequence of that disclosure statement. In the present case, recovery of the weapon of offence i.e. knife and Trod has been made in consequence of the disclosure statement of the accused and therefore that portion of his disclosure statement wherein recovery of knife and Trod is effected at his instance is very much admissible under Section 27 of Indian Evidence Act.
52. As per the FSL result received, on the pant of the accused blood stains have been detected. Cotton wool swab which carried the blood of the deceased and the pant of the accused bears the same blood group. FSL report is admissible under Section 273 of Cr.P.C. The piece of stone, cotton wools swab having blood stains of the deceased and his sweater all have blood group 'B' stains on them. Same blood group 'B' has been found on the pant of the accused as well as on the blade of knife which was recovered at the instance of accused. Accused has failed to explain as to how the deceased blood has been found on his clothes if he has not committed murder of the deceased. Similarly, on the knife of the blade which has been recovered at the instance of accused, blood group 'B' has been detected which is same as that of deceased. Finding of same blood group on the SC No. 148/2009 State Vs Kishan Tripathi Page No. 33 of 41 pant of the accused as that of deceased blood group gives rise to only one presumption that it was accused who committed murder of the guard Sachidanand Jha.
53. PW8 is SI Awdhesh Kumar, Finger Print Expert who gave his report vide Ex.PW8/A and stated that chance prints lifted from the scene of crime mark Q2 is identical with Left thumb impression of Kishan Pratap Singh S/o Sh. Jai Prakash. Ld. Defence counsel argued that accused was a regular visitor to the factory and therefore chance prints could be of previous dates when accused visited the factory and no presumption can be raised that they were of the same day when the incident took place. No doubt these chance prints could be of previous dates when the accused visited the factory. The finger print expert report is only a corroborative piece of evidence. Substantive piece of evidence in the present case i.e. CCTV footage and recovery of blood stained knife and clothes of the accused at the instance of accused clearly shows that it was accused only who committed the murder of deceased Sachidanand Jha.
54. PW1 is Dr. Susheel Sharma who conducted postmortem on the dead body of the deceased Sachidanand Jha. He deposed that injury no.1 was caused by pointed sharp edged weapon, individually sufficient to cause death in ordinary course of nature. Injury No. 5, 6 & 8 caused by Sharp edged weapon and injury no.2,3,4,7,9,10,11 and 12 caused by blunt force impact collectively sufficient to cause death in ordinary course of nature. This witness further stated that the SC No. 148/2009 State Vs Kishan Tripathi Page No. 34 of 41 deceased was wearing blood stained clothes and they showed cut mark back at right aspect found correspond to injury no. 1. He further stated that injury no.1,5,6 and 8 mentioned in the postmortem report Ex.PW1/A could be possible by this exhibit i.e. blade of knife recovered at the instance of accused. He further has proved his subsequent opinion Ex.PW1/B. Ld. Defence counsel for the accused argued that length of the blade was not mentioned in his subsequent opinion given by PW1. The doctor prepared the sketch of the knife after keeping the original blade on the paper. Merely, because PW1 did not subsequently mention length of blade is no ground to disbelieve the testimony of PW1. PW1 has clearly stated that injury no.1 was possible by the knife recovered at the instance of accused and is sufficient to cause death in ordinary course of nature. Motive of Crime:
55. PW4 has stated on oath in the court that glass of his office was broken and somebody had entered in his office who had broken his locker and Rs. 7,500/ and some documents were stolen from there. Nothing material has come out of the cross examination of PW4 in this regard. Thus, motive i.e. theft has been duly established by the prosecution on record. Ld. APP for the state argued that accused Kishan Tripathi entered into the factory for the purpose of stealing from the locker of the factory but since he was detected by the guard he committed his murder. Submission of the Ld. APP for the state bears force. Tijori ( locker ) was taken into possession by the investigating officer and its seizure has also been SC No. 148/2009 State Vs Kishan Tripathi Page No. 35 of 41 proved on record by PW4 as well as by the other prosecution witnesses.
Ld. Defence counsel for the accused argued that no instrument to break the Tijori ( locker) has been detected by the Investigating officer lying near the Tijori (locker). On the other hand, Ld. APP for the state argued that iron Trod can also be used by a person for breaking the Tijori and not for the purpose of killing some one only. These arguments of the Ld. APP for the state bears force and cannot be ignored. In the cross also, PW4 has stated that Tijori was out from the box. The glass of the back door of that room was taken out after removing the beading and it was debolted. PW4 has admitted that Tijori is made up of steel and cannot be open by hand or fist. No suggestion has been given to PW4 that glass of his office was not removed or the Tijori was not found broken or no cash was found missing from the same. PW18 Inspector B.S. Rana reached at the spot after receiving the information. He has also stated that they found window pane of back door removed and small Tijori kept in the office was broken. Nothing material has come out of the cross examination of PW18 on this aspect. Therefore, the motive to commit the offence i.e. to commit theft also stands established beyond reasonable doubt by the prosecution.
Defence of accused:
56. The defence taken by the accused is that he was arrested from the Jahangir puri and not from the Anath Ashram near Sarita Vihar which itself creates a doubt on the case of the prosecution. DW1 is Sh. Ravinder Pandey, one of the SC No. 148/2009 State Vs Kishan Tripathi Page No. 36 of 41 defence witnesses who stated that on 26.02.2009 police officials came to his house at Jahangirpuri and took accused and him into custody. In his cross examination this witness has stated that till today he has not filed any complaint before the local police or higher authorities that accused was lifted from his house by the police. He further stated that he does not know any person by the name of Satish or Ram Sharan Tripathi whom as per prosecution information about the arrest of the accused was given.
DW2 is Head Constable Om Prakash from police station Jahangir puri who stated that DD No. 3B dated 27.02.2009 and DD No. 34B was registered at police station Jahangir puri. This witness has admitted in his cross that neither the name of the two boys who were taken by the police is mentioned in the DD No. 3B nor the particulars of the police personnels who have taken them are mentioned in these DD numbers. He further admitted that neither the name of the complainant nor the address of the complainant is mentioned in the DD entries. From these DD entries no presumption can be raised that accused was arrested from the Jahangirpuri. Even if, for arguments sake we believe the version given by the accused that he was arrested from Jahangirpuri and not from near Anath Ashram but this fact itself does not falsify the case of the prosecution that accused did not commit the murder of the deceased or did not get recovered the weapon of offence from the factory or his clothes , shoes etc. near the Anath Ashram or from his house respectively.
SC No. 148/2009 State Vs Kishan Tripathi Page No. 37 of 41 Another defence taken by the accused is that he was suffering from night blindness at the time of incident and is unable to see at night and therefore, could not commit murder of any person. It may be mentioned that this defence has been taken by the accused only at the time of leading his defence evidence. Prior to this accused did not take any such defence. No such suggestions have been given to the Investigating officer or to PW4 or to any other witnesses that accused was suffering from night blindness at the time of incident. DW3 is Dr. Kamlesh who operated on the accused for the squint in his eyes after the arrest of the accused. He has stated that patient gave the history of decrease vision at night . He has nowhere stated that patient Kishan Tripathi was detected with some night blindness. In his cross examination he has stated that there is no problem for patient to see in the night. Even accused was not treated for any night blindness in the hospital despite the fact that he complained of decrease vision at night. Therefore, the defence taken by the accused that he was unable to see in the night does not also hold good and also does not stand proved by the accused. It was for the accused to prove this fact as he himself has taken this plea but he had failed to prove the same.
57. In his statement under Section 313 Cr.P.C accused himself has admitted that he knew Rakesh Bhargav and he used to do the work of painting at the house of Rakesh Bhargav. He had further stated he had done the work of painting at the house of Rakesh Bhargav 1015 days before the incident. He has further stated that for the last 56 years he used to do the painting at the house and SC No. 148/2009 State Vs Kishan Tripathi Page No. 38 of 41 office of Rakesh Bhargav but he did not pay him. On saturday, he visited his house where some puja was going on . Wife of Rakesh Bhargav told him to reach at factory. He reached at the factory at about 4/4.30pm . At the factory, Rakesh Bhargav told him to come after 45 days and also threatened him not to demand money otherwise he will get him falsely implicated in the case. On Sunday at about 10 am he again visited the house of Rakesh Bhargav and demanded his money and told him that his goods are lying in the factory and he wants to take them. Rakesh Bhargav told him to reach office at 4/5 pm on sunday. He reached at the factory and asked the guard that his goods are lying but the guard did not allow him to enter the factory. The guard asked him to bring some goods for him and also gave him money for that. He bought the goods for the guard and thereafter he went away from the factory. Thereafter, he reached at NOIDA where he was doing the work of painting and slept there. On monday, it was Maha Shivratri and hawan was performed in the Mandir and brother of Rakesh Bhargav had also attended the hawan. From Mandir he went to Sector 12, NOIDA for work at around 11am /12 noon. To bring the labour for the work at the house at Sector12, NOIDA he went to Jahangir puri where he reached at 4/5 pm. At Jahangir puri, he received a call from the guard of Chetna Mandir informing him that police is searching him. At about 8/9 pm, police officials reached at Jahangir puri and arrested him and also apprehended the other labours from Jahangir puri. Thereafter, they brought him to chowki. From the statement of accused it is clear that accused has also admitted that he knew Rakesh Bhargav. He stated that he was SC No. 148/2009 State Vs Kishan Tripathi Page No. 39 of 41 doing the painting work at the factory and house of Rakesh Bhargav for the last 56 years but PW4 Rakesh Bhargav did not pay him. It is very strange and hard to believe that for the last 56 years PW4 had not paid the accused and accused kept on working at his factory and house without payment. Accused himself has admitted that he reached factory of Rakesh Bhargav on Saturday. Accused further stated that on Saturday he visited the house of Rakesh Bhargav where some Puja was going on . His plea is contradictory to the similar plea taken by him during the cross of PW4 where a suggestion has been given to PW4 that on Friday there was Mata ki Chowki / jagran organized at the house of Rakesh Bhargav. For the sake of repetition, it may be mentioned that in his statement accused has not stated about any such thing of Mata Ki Chowki / Jagran at the house of Rakesh Bhargav on Friday. He has nowhere stated that he bought a table for Mata Ki Chowki/ Jagran for Rs. 1,000/ at the demand of the wife of Rakesh Bhargav. Accused visited the factory of Rakesh Bhargav at about 4/5 pm on Saturday which he was required to prove but no such witness in his defence has been examined by the accused. No guard of the factory has been examined by him nor any other witness or labour in the factory to prove the fact that he visited the factory at about 4/5 pm on Sunday to demand his money. The version given by the accused is contradictory. Accused has taken contradictory stands in the court and he has not been able to prove either of his versions in the court.
58. In view of the above said discussion, prosecution has been fully able to prove its case against the accused beyond the shadow of doubt. Accused is SC No. 148/2009 State Vs Kishan Tripathi Page No. 40 of 41 therefore, held guilty and convicted for the offence under Section 302 of IPC. ANNOUNCED IN THE OPEN COURT ON 04.10.2012 ( MADHU JAIN ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI/04.10.2012 SC No. 148/2009 State Vs Kishan Tripathi Page No. 41 of 41