Delhi District Court
State vs . Santosh Kumar on 27 October, 2020
1
CIS No. 53261/16 16.10.2020
FIR No. 384/14
IN THE COURT OF MS. KIRAN GUPTA, ADDITIONAL
SESSIONS JUDGE - 03, NORTH WEST DISTRICT, ROHINI
COURTS, DELHI
CIS NO. 53261/16
FIR NO. 384/14
PS Ashok Vihar
U/s.364 /302/201/120B IPC
State Vs. Santosh Kumar
CNR NO. DLNW01 -001124-2013
(a) Session Case No. 53261/16
(b) Date of offence 23.04.2014 to 28.04.2014
(c) Accused 1. Sh. Santosh Kumar
S/o Sh. Meghu Ram
R/o Village Lacch Mandi,
PS Shahkund,
Distt. Bhagalpur, Bihar
2. Sanoj Ram
S/o Jai Prakash Ram
R/o Village Gidhodha,
PS Shambhu Gunj,
Distt. Banka, Bihar
State Vs Santosh and Anr. Page 1 of 55
2
CIS No. 53261/16 16.10.2020
FIR No. 384/14
(d) Offence U/s. 364/ 302/ 201/ 120B
IPC
(e) Plea of accused Pleaded not guilty
(f) Final Order Convicted for all the
offences
(g) Date of institution 19.04.2016
(h) Date when judgment 06.10.2020
was reserved
(I) Date of judgment 16.10.2020
JUDGMENT
1. The accused persons are facing trial for the offence U/s. 364/302/201/120B IPC.
BRIEF FACTS
2. The case of prosecution is that on 01.05.14 Shri Bahadur Mandal S/o Shri Mahabir Mandal R/A-55,Group WPIA, had visited the police station and lodged the complaint State Vs Santosh and Anr. Page 2 of 55 3 CIS No. 53261/16 16.10.2020 FIR No. 384/14 of his missing son Nitish Kumar vide DD No. 47B that his son Nitish alongwith his friend Santosh Kumar had gone to Ballabhgarh, Haryana about ten days ago and has not returned thereafter. Accordingly, missing report was lodged on the basis of description and was handed over to ASI Raj Kumar for further investigation. WT Message regarding missing was sent on All India Police via Information ZIP Net. Hue and Cry Notice was issued. Despite publication of missing information and search, Nitish Kumar could not be found.
2.1 On 29/06/14, Deen Mohan Mandal s/o Mahadev Mandal who is the uncle/chacha of Nitish Kumar gave his statement to SI Azad Singh that the son of his elder brother namely Nitish Kumar aged 21 years used to do the work of packing at A-55, Group WPIA. Around one and a half month back, Santosh Kumar had taken him to Ballabhgarh Haryana alongwith him. He has not returned back and in this regard, his elder brother had lodged missing report dated 01.05.2014, vide DD No. 47 B. He gave the description of Nitish and stated that despite various efforts he could not be State Vs Santosh and Anr. Page 3 of 55 4 CIS No. 53261/16 16.10.2020 FIR No. 384/14 searched. He has doubt/apprehension that his nephew Nitish Kumar has been abducted/kidnapped by Santosh Kumar. On the basis of the statement, SI Azad Singh got registered a case no. 384/14 u/s 365 IPC.
2.2 During investigation, SI Azad Singh made a lot of efforts to search Nitish and Santosh, however, he could not get any clue about their whereabouts. Even reward was announced for searching the missing persons. He even obtained NBW of Santosh, however, he could not be searched. Thereafter, the investigation was handed over to ASI T.N. Yadav. Even he made a lot of efforts to search Santosh and Nitish. Since, SI Azad Singh was transferred, the case file was transferred to SI Kalicharan for further investigation.
2.3 During investigation SI KaliCharan met Vinod Ram, Gore Lal and Kundan Kumar who used to work at A-55, Group WPIA, Delhi. All these three boys also belonged to Nitish's village and worked in the factory with Nitish and Sanoj. All these five persons used to live in one room at S. S. State Vs Santosh and Anr. Page 4 of 55 5 CIS No. 53261/16 16.10.2020 FIR No. 384/14 Nagar, WPIA, Ashok Vihar, Delhi. These three boys disclosed that on 11/04/14, while they were working in the factory, ceiling fan was on. Sanoj switched off the fan. Nitish asked him not to switch off the fan. Due to this, quarrel ensued between them. Initially they exchanged abusive language, thereafter, they had fight and threatened to kill each other. On this Sanoj said, 'tukya mujhemarega main hi tera kaam karwa dunga'. However, the matter was compromised due to the intervention of others. After about 7-8 days, Sanoj called his brother-in-law/jija Parmanand and brother-in-law Satosh from Ballabhgarh. They came on 20/04/14. Sanoj made Nitish, his jija Parmanand and Santosh consume some liquor and they remained there for 2-3 days. Parmanand left the room after 2 days, however, Santosh continued to live in the said room. On 23.4.14, after finishing the duty, when they reached the room, Santosh and Sanoj asked Nitish to come alongwith him to Ballabhgarh. All these three persons, left at around 8'o clock. Thereafter, Sanoj returned back on 27.4.14 and after taking all his belongings vacated the room. After one week, he even stopped coming to the factory.
State Vs Santosh and Anr. Page 5 of 55 6CIS No. 53261/16 16.10.2020
FIR No. 384/14
2.4 Thereafter SI Kali Charan started searching
Santosh and Sanoj. On 31/10/15, he received information from secret informer that Santosh is about to meet his jija Sanoj at B-73, WPIA factory. On this, SI Kali Charan started supervising the said place. On identification of the secret informer, he apprehended Santosh and thereafter, arrested him. He recorded his disclosure statement, wherein he disclosed that he alongwith his brother-in-law Sanoj Ram in a pre-planned manner, first took Nitish with them and thereafter, they killed him at Yamuna Khadar Jungle. The co- accused Sanoj was also arrested on 31.10.2015. He also admitted the commission of the offence in his disclosure statement. They agreed to identify the place where they had killed Nitish.
2.5 Thereafter, on the instruction of SHO, SI Umesh Rana, PSI Parveen, Ct. Ashok, Ct. Mukesh, Ct. Digvinay and Ct. Bhagat algonwith the accused persons left for Usmanpur. The accused persons asked to stop the gypsy towards one road at Usmanpur and pointed to the forest which was visible from the said road and disclosed that they had killed State Vs Santosh and Anr. Page 6 of 55 7 CIS No. 53261/16 16.10.2020 FIR No. 384/14 Nitish Kumar in the said jungle/forest. The police party got joined two persons Mohd. Aarif and Salim who were selling certain goods on the said road for further investigation.
2.6 The accused Sanoj Ram and Santosh in the presence of the abovesaid two public witnesses took them to one place at Yamuna Khadar jungle near Gadi Mendu Purana Gaon and identified the place and disclosed that it is the same Kikar tree where they had made Nitish Kumar drink liquor. When Nitish removed his shirt and lied down, Santosh disclosed that he in furtherance of the conspiracy hit Nitish on his head three times with a stone. His Jija Sanoj who was carrying the knife, hit Nitish with the knife in his stomach and neck. They threw the stone and knife at some distance in the jungle and left the body of Nitish at that place. Pointing out memo and site plan was prepared accordingly. Despite best efforts, the stone and knife could not be found. Statement of both the public witnesses was recorded U/s.
161 Cr.P.C 2.7 Thereafter, SI Umesh Rana went to PS New State Vs Santosh and Anr. Page 7 of 55 8 CIS No. 53261/16 16.10.2020 FIR No. 384/14
Usman Pur and checked the records of police station, whether any dead body has been found in last week of April 2014. As per record, inquest DD no. 43 A dated 29/04/14 was found. As per the said inquest report, one dead body was found in Yamuna Khadar forest near Mandu Village. The concerned IO SI Jaspal was called, who stated that he can identify the place where the said body was found. After this, ASI Jagpal alongwith SI Umesh Rana went to the Khadar village where ASI Jagpal identified the same place where the body was found, which was identified by the accused persons. Accordingly, Sections 302/201/34 IPC was added and section 365 IPC was amended to section 364 IPC.
2.8 Thereafter, the inquest paper and the exhibits were taken. MHC(R) HC Vijay handed over the DD NO 43 A Dated 29/04/14 vide RC No. 377/21/15. PC remand of both accused persons was taken. They were taken to the place of incident and search for murder Weapons i.e. stones and knife was carried out, however, they could not be found.
2.9 The exhibits of DD no. 43 A and the inquest and State Vs Santosh and Anr. Page 8 of 55 9 CIS No. 53261/16 16.10.2020 FIR No. 384/14
postmortem, which was received from PS Usmanpur was shown to the parents of Nitish Kumar and their nephew Gore Lal. All these three persons, identified the photographs of inquest that the dead body is of Nitish Kumar. They identified the body on the basis of built, clothes and the shoes. Thereafter, blood samples of both the parents namely Bahadur Mandal and Kunti were preserved to establish the parentage of the dead body. The samples were sent for DNA profile to FSL Rohini. Rough notes were prepared for scaled site plan. On 16.01.2015, exhibits and viscera were deposited with FSL on the basis of the postmortem report, and statement of witnesses that the deceased was last seen with the accused persons Santosh and Sanoj, chargesheet was filed against both the accused persons U/s. 364/302/201/120B/34 IPC before the Ld. M.M. As per the supplementary chargesheet, the DNA profile of the deceased matched with the DNA profile of the mother/ Smt. Kunti.
3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance of offense was taken by the Ld. Metropolitan Magistrate and after State Vs Santosh and Anr. Page 9 of 55 10 CIS No. 53261/16 16.10.2020 FIR No. 384/14 compliance with the provisions of Section 207 Cr.P.C., the case was committed to the Court of Sessions, whereafter it was assigned to this court.
CHARGE
4. After hearing arguments on point of charge and finding a prima facie case against accused persons, requisite charges U/s. 364/ 302/ 201/ 120B were framed against them to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. In support of its case, the prosecution has examined as many as 31 witnesses. The details of the witnesses so examined and documents proved by them are hereby put in a tabulated form as under.
PW No. Documents proved and the role Name & details of the witness State Vs Santosh and Anr. Page 10 of 55 11 CIS No. 53261/16 16.10.2020 FIR No. 384/14 PW1 Sh. All these three persons are the roommates of Kundan deceased Nitish and accused Sanoj. They had Kumar, last seen accused persons with Nitish on
23.04.2014 at 8 p.m. Their testimony shall be PW2 Sh. Vinod discussed in detail in the later part of judgment. Kumar & PW3 Sh. Gorey Lal PW4 Ct. Ashok On 04.11.2015, he took the exhibits vide RC No. 84/21/15 & RC No.85/21/15 from MHC(M) HC Karambir and deposited the said exhibits in the FSL vide acknowledgement FSL No.2015/ BIO- 7153 dated 04.11.2015.
Thereafter, he came back to PS and handed over the acknowledgement of FSL and one copy of RC No.85/21/15 back to HC Karambir as the exhibits received vide said RC could not be deposited in the Chemistry Division due to some documentation.
PW5 HC On 16.11.2015, he was posted at PS Ashok Vihar State Vs Santosh and Anr. Page 11 of 55 12 CIS No. 53261/16 16.10.2020 FIR No. 384/14 Mukesh as constable. On that day, he got deposited the
wooden box containing viscera of deceased and one envelope containing copy of PM report to FSL which was handed over to him by MHC(M) vide RC No.88/21/15.
PW6 Sh. They are the parents of deceased Nitish. They
Bahadur proved photograph of their son as Ex.PW6/A
Mandal and MLC dated 03.11.2015 of their blood
& sample as Ex.PW6/B and Ex PW7/A. PW6
PW7 Smt. identified the clothes and belongings of his son
Kunti Devi as Ex.P1.Their testimony shall be discussed in
detail in the later part of judgment.
PW8 ASI Amrit He deposed that on 29.06.2014, he was Lal working as duty officer. He proved the FIR as Ex.PW8/A, Certificate U/s.65 B Indian Evidence Act as Ex.PW8/B and endorsement on tehrir as Ex.PW8/C. PW9 Ct. He deposed that on 03.11.2015, he was posted Dharmender at PS Ashok Vihar. On that day, he went to PS Usmanpur and took the exhibits which were deposited in malkhana vide DD no.43A dated 29.04.2014 vide RC no.119/21/15 and got them State Vs Santosh and Anr. Page 12 of 55 13 CIS No. 53261/16 16.10.2020 FIR No. 384/14 deposited alongwith sample seal at the malkhana of PS Ashok Vihar.
PW10 He deposed that on 29.04.2014, he was posted Inspector Ravi at Mobile Crime Team, North East, District, Kumar Delhi. On that day, at about 7.30 p.m., he received information regarding a dead body found in jungle beyond GarhiMandu Village. In pursuance to the said information, he alongwith his team reached at the spot where he met Inspector IO ASI Jagpalalongwith other police staff. He inspected the spot and got it photographed through Ct. Zile Singh (PW14).
He prepared his report as Ex.PW10/A and handed over the same to ASI Jagpal. PW 14 proved photographs of deceased Nitish as Ex.PW14/A1 to Ex.PW14/6 and one photograph available on hue and cry notice as Ex.PW14/A7. Negatives of photographs as Ex.PW14/B1 to PW14/B7.
PW11 HC Vijay He deposed that in November 2015, he was Kumar posted as MHC(R) at PS Usmanpur. He handed over the inquest papers of unknown dead body State Vs Santosh and Anr. Page 13 of 55 14 CIS No. 53261/16 16.10.2020 FIR No. 384/14 pertaining to DD no.43A dated 29.04.2014 of PS Usmanpur which were prepared by ASI Jagpal to SI Umesh Rana on 01.11.2015 vide RC Certificate no.377/21 Ex.PW11/A. PW12 HC He delivered the exhibits-one sealed wooden Krishan Singh box containing viscera of unknown deceased, one sealed jar containing sternum of deceased, one cloth pullanda stated to be containing the clothes of deceased pertaining to the inquest of DD no.43 A/ dated 29.04.2014 entered at Sl. no.2228 of register no.19 of the malkhana to Ct. Dharmender, PS Ashok Vihar on 03.11.2015 alongwith copy of extract of relevant entry of register no.19 Ex.PW12/A. PW13 Ct. Raj They deposed that on 03.11.2015, on the Kumar instructions of IO Inspector R K Mann, they & went to Babu Jagjeevan Ram Memorial Hospital PW23 W-Ct. and got the blood samples of Bahadur Mandal Sonika and his wife Kunti preserved. The samples were preserved by Dr. Deepak Kumar. They proved the request letter of IO as Ex.PW13/A and seizure Memo of exhibits as Ex.PW13/B. State Vs Santosh and Anr. Page 14 of 55 15 CIS No. 53261/16 16.10.2020 FIR No. 384/14 PW15 Sh. He proved the DNA profiling report as Naresh Kumar, Ex.PW15/A. Scientific Officer, DNA expert.
PW16 Sh. Prem He proved the viscera report as Ex.PW16/A. Pal, Senior Scientific Officer, Chemistry, FSL, Rohini, Delhi PW17 He proved the scaled site plan Ex.PW17/A Inspector dated 27.11.2015 prepared on the basis of Mahesh Kumar, rough notes dated 06.11.2015. Draftsman, Crime Branch, PHQ, New Delhi.
PW18 Sh. They are the public witnesses .They proved the Saleem & pointing memo as Ex.PW18/A.Their testimony PW19 Mohd. shall be discussed in detail in the later part of Arif judgment. State Vs Santosh and Anr. Page 15 of 55 16 CIS No. 53261/16 16.10.2020 FIR No. 384/14 PW 20 ASI On 31.03 2015, they alongwith Ct. Bhagat Singh Wazir Singh and Satpal apprehended the accused persons
& near factory no.B-73. They proved the arrest PW 29 ASI memo & personal search memo of accused Kalicharan Santosh Kumar as Ex.PW20/A, Ex.PW20/Band his disclosure statement as Ex.PW20/C. They also proved arrest memo & personal search memo of accused SanojRam asEx.PW20/D,Ex.PW20/E and his disclosure statement as Ex.PW20/F. PW21 ASI They deposed that on 29/04/2014, they were Jagpal posted at PS New Usmanpur as ASI and & constable respectively. On receipt of DD No. PW31 Ct. 43A that a male dead body was lying in the Naveen forests of Old Gadi Maindu, Village New Usmanpur, they reached there and found one male dead body in decomposed condition. ASI got the dead body shifted to mortuary GTB Hospital through Ct Naveen, with a request to preserve the same for 72 hours vide Ex.
PW21/A .
State Vs Santosh and Anr. Page 16 of 55 17CIS No. 53261/16 16.10.2020 FIR No. 384/14 On 05/05/2014, ASI got the postmortem of the said dead body conducted at GTB hospital vide request letter Ex.PW21/B and also cremated the same. He proved Form No. 25.35 (1) (B) as Ex. PW21/C ,Form No. 25.35 (1) (B) as Ex.
PW21/C, pointing out memo of spot where dead body was found as Ex.PW21/D, photocopy of viscera as Mark PW21/X. PW22 Retired He was initial IO of the Case. He recorded the ASI Azad Singh statement of DeenDayal Mohan Mandal on 29.06.2014 and endorsed the rukka asEx.PW22/A and statement of father of accused Santosh recorded on 11.08.2014 as Ex.PW22/B. PW24 Sh. Deen He is uncle of deceased. He has proved his Mohan Mandal complaint as Ex.PW24/A and identified the clothes of deceased as Ex.P1. His testimony shall be discussed in detail in the later part of judgment.
PW25 ASI Raj He deposed that on 29.04.2014, he was posted Kumar at PS New Usmanpur, as HC. He recorded DD State Vs Santosh and Anr. Page 17 of 55 18 CIS No. 53261/16 16.10.2020 FIR No. 384/14
No.43A regarding dead body of one male found in jungle near Mandu Gaon and passed the information to ASI Jagpal telephonically for necessary action. He has proved attested copy of DD No.43A as Ex.PW25/A. PW26 Dr. Neha She proved the detailed postmortem report as Gupta, Ex.PW26/A. Assistant Professor, Hindu Rao Hospital, Delhi PW27 He has deposed that after addition of Section Inspector R.K. 302 IPC, the case file was marked to him for Maan further investigation on 01.11.2015. Both the accused persons were already arrested.
Pursuant to their disclosure statement , they led the police party to the place of incident. He proved the pointing out memo identified by the accused persons as Ex.PW18/A. He recorded the statement of Mohd. Arif and Saleem. He made enquiry at PS Usman Pur and on receipt of details of DD no.43A dated 29.04.2014, he again State Vs Santosh and Anr. Page 18 of 55 19 CIS No. 53261/16 16.10.2020 FIR No. 384/14 reached the jungle Yamuna Khadar with ASI Jagpal who pointed out the place where the body of an unknown male was found. He proved the pointing out memo as Ex.PW21/D. He other proved the other documents of investigation.His request for DNA as Ex.PW13/A , seizure memo of blood samples of Bahadur Mandal and Kunti Mandal as Ex.PW13/B. PW28 He is one of the member of investigating team SI Umesh Rana who had accompanied SI Kalicharan on 31.10.2015 when the accused persons were arrested and thereafter, Inspector R.K.Maan to Jungle Yamuna Khadar.
PW30 She has deposed that on 29.04.2014, she was W Ct. Reena posted at Central Police Control Room to attend the calls made at number 100. Her duty was on extension no. 122. On that day at about 18.44:28 hours, she received a call from Mobile No. 9811443825 and the informer informed me, " Purana Garhi Mendhu village ke jangal mein ek male dead body pari hui hai". She filled PCR State Vs Santosh and Anr. Page 19 of 55 20 CIS No. 53261/16 16.10.2020 FIR No. 384/14 form in this regard. Same is EX. PW30/A and passed this information to Control Room.
STATEMENT OF ACCUSED
6. After completion of prosecution evidence, all the incriminating material available on record was put to the accused under Section 313 Cr.PC. They pleaded innocence and stated that they have been falsely implicated in the present matter. The prosecution witnesses are interested witnesses and they have deposed falsely against them.
ARGUMENTS
7. It is argued by the Ld. Addl. PP for the State that all the prosecution witnesses have duly supported the case of prosecution. PW1, PW2 and PW3 have categorically deposed that some quarrel took place between Nitish and Sanoj regarding switching off the fan on 11.04.2014. They both scuffled and abused each other and also extended threats to kill each other. During the scuffle, Sanoj told Nitish 'tu mere ko kya marega, main State Vs Santosh and Anr. Page 20 of 55 21 CIS No. 53261/16 16.10.2020 FIR No. 384/14 hi tera kaam karwa dunga'. Thereafter, accused Sanoj called his brother in law Santosh and conspired to kill Nitish. Both of them in preplanned manner made Nitish drink liquor and took him alongwith them on 23.04.2014 at around 8 p.m. Nitish was last seen with Sanoj and Santosh as they all left for Ballabhgarh, Haryana in the night at around 8 p.m. Sanoj returned back after two days without Nitish. Sanoj took away all articles and even left the job at factory. Though he told the other room mates that Nitish would return back soon, however, Nitish never returned. Missing complaint was lodged by the father of the Nitish. In the meantime, search was made for Sanoj and Santosh. After arrest of both the accused persons, they admitted that they had killed Nitish at Yamuna Khadar forest near Mandu Village. They showed to the IO the place of incident.
7.1. On enquiry from the local police station, it was found that body of an unknown male was found in Yamuna Khadar forest near Mandu Village on 29.04.14 at the same place as pointed out by the accused persons. The photographs of the said dead body State Vs Santosh and Anr. Page 21 of 55 22 CIS No. 53261/16 16.10.2020 FIR No. 384/14 were identified by the parents of Nitish to be of Nitish. Even the DNA of mother of Nitish matched with the body of said unknown male. Even as per the postmortem report, the nature of injuries is same as disclosed by accused persons.
7.2 It is further argued that the prosecution has proved the complete chain of events starting from the last seen evidence to the discovery of the body at the same place at Jungle Yamuna Khadar. The motive behind the murder was previous fight between Sanoj and Nitish regarding the fan in the factory in the presence of all the workers. It is prayed that since the prosecution has proved the case beyond pales of reasonable doubt against both the accused persons, they be convicted for the offences U/s.302/201/364/ 120B IPC.
8. Per contra, it has been argued by the Ld. Defence Counsels for both the accused persons that accused persons have been falsely implicated in the present matter by the IO in order to solve this case. It is submitted that none of the prosecution State Vs Santosh and Anr. Page 22 of 55 23 CIS No. 53261/16 16.10.2020 FIR No. 384/14 witnesses have deposed that they had seen the crime being committed by the accused persons. Further, PW1 to 3 have admitted that there was small quarrel regarding the switching off the fan between Nitish and Sanoj and the same was pacified at that time and no quarrel took place between them for 10-15 days prior to the date when Nitish went missing.
8.1 It is further argued that some of the witnesses have deposed that they were on leave on the date when Nitish accompanied accused persons, however, some have deposed that when they returned from factory, they saw that all these three persons were taking liquor and left for Ballabhgarh. It is argued that no reliance can be placed on the testimony of these witnesses as their testimony is contradictory.
8.2 It is further argued that neither the IO nor PW1 to PW3 have filed any proof that they were residing in the same jhuggi or working in the same factory with Nitish and accused Sanoj. Further, no reliance can be placed upon the testimony of State Vs Santosh and Anr. Page 23 of 55 24 CIS No. 53261/16 16.10.2020 FIR No. 384/14 PW 18 and PW 19 who are stock witnesses and have been planted by the IO. The disclosure statement of the accused persons are manipulated as their signatures were taken on blank papers. It is submitted that both the accused persons are innocent and have not committed any crime. It is prayed that they be acquitted in the present matter.
ANALYSIS OF EVIDENCE AND FINDINGS
9. Heard Ld. Addl. PP for the State, Ld. Defence Counsel for both the accused persons and perused the complete record file. Both the accused persons are facing trial for the offences U/s. 302/201/364/120B IPC. The essential ingredients of the offence U/s. Section 302 IPC are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done;
a. with the intention of causing death, State Vs Santosh and Anr. Page 24 of 55 25 CIS No. 53261/16 16.10.2020 FIR No. 384/14 or b. that the accused knew it to be likely to cause death,or c. that the injury was sufficient in the ordinary course of nature to cause death.
10. The prosecution in order to prove the offence U/s.302 IPC against the accused persons has to prove:
A. The presence of accused persons on the spot at the time of incident.
B. Their identification by the eye witness.
C. The injuries caused to the deceased and medical opinion as regards cause of death. D. The motive of the accused persons in causing death of deceased Nitish.
11. From the facts as discussed above, it is evident that the case of prosecution purely rests on circumstantial evidence. There is no direct evidence with regard to any aspect of the matter. The above narration of the facts shows that the prosecution has attempted to prove the circumstance that the deceased was last State Vs Santosh and Anr. Page 25 of 55 26 CIS No. 53261/16 16.10.2020 FIR No. 384/14 seen in the company of the accused persons; that the dead body was recovered pursuant to disclosure by the accused persons and that the DNA report connects the accused persons with the crime. Learned APP for the State has submitted that the postmortem report also points out conclusively to the culpability of the accused persons for the commission of the offence.
12. It is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests: -
(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.State Vs Santosh and Anr. Page 26 of 55 27
CIS No. 53261/16 16.10.2020 FIR No. 384/14 LAST SEEN TOGETHER EVIDENCE
13. The most important circumstance which the prosecution has relied against the accused persons is the last seen evidence of the deceased being last seen alive in the company of the accused persons on 23.04.2014 at around 8 p.m. In this regard, prosecution has extensively relied upon the information given as well as testimony of PW 1 to 3.
14. PW1 Kundan Kumar deposedthat he is working as labourer at A-55 Group, Wazirpur Industrial Area. His co- villagers Vinod Ram, Gore Lal , Nitish, Sanoj and one Bhandari used to work in the same factory. They used to reside in one jhuggi situated at Shaheed Sukhdev Nagar,Wazirpur Industrial area. On 11.04.2014, deceased Nitish and accused Sanoj had an altercation on the issue of a fan as Nitish was willing to switch on the fan and Sanoj wanted to switch off the fan. They both used abusive language and thereafter, he separated both of them. On 20.04.2014, brother-in-State Vs Santosh and Anr. Page 27 of 55 28
CIS No. 53261/16 16.10.2020 FIR No. 384/14 law of Sanoj namely Santosh and Parmanand arrived at their room on the call of Sanoj. They all consumed liquor at their jhuggi. On 22.04.2014, Parmanand left their jhuggi and went back to their village. On 23.04.2014, after finishing his duty, when he reached his jhuggi, accused Santosh asked Nitish to accompany him to Ballabhgarh for excursion and thereafter, at about 8 p.m., Santosh, Sanoj and Nitish left the jhuggi. At that time , Santosh was having liquor with him i.e two quarter bottles. After two days, Sanoj arrived at their jhuggi and left the jhuggi with his belongings and also discontinued working in the factory. He clearly identified both the accused persons.
14.1 PW1 during his cross-examination deposed that Nitish joined the factory three years after he joined. Vinod Ram was working in the factory even prior to him. No quarrel took between Sanoj and Nitish prior to 11.04.2014. On 11.04.2014, only verbal threats and abuses were exchanged between Sanoj and Nitish and no hathapai had taken place. He admitted the suggestion that no further quarrel took place between them after 11.04.2014 till 23.04.2014. He deposed that on 20.04.2014, Parmanand and State Vs Santosh and Anr. Page 28 of 55 29 CIS No. 53261/16 16.10.2020 FIR No. 384/14 Santosh arrived at their room at about 11 a.m. and on that day, he and Vinod were present in the room when they consumed liquor. Only Parmanand , Santosh and Sanoj had consumed liquor there. The room would be about 10' x 10'. There was no furniture in the room. They all used to sleep on the floor. On 23.04.2014, both the accused and Nitish left the room after about 10-15 minutes of his reaching there from factory. The two quarter liquor bottles were in the hand of Santosh and in his presence he kept those quarter bottles in pocket of his pants. The same appeared to be a country made liquor. He and Vinod had reached the room at the same time. In their presence, Santosh had asked Nitish 'chal Nitish Ballabhgarh ghoom ke aatain hain'. He admitted that they neither objected to the proposal nor asked Nitish not to go with Santosh. When he reached at his room at about 8.30 p.m. after two days of 23.04.2014, by that time, Sanoj had collected his belongings from the room and he left the room with his belongings after about ten minutes of his reaching there. At that time, Vinod Ram was at the work place as he had stayed there for taking bath.
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14.2 He further deposed that he asked Sanoj about Nitish
and he told him not to worry as Nitish had gone on excursion tour and would come back within one-two days. When Nitish did not return and Sanoj had left his employment also, he searched for Nitish to find his whereabouts. They also called at the native place of Nitish but he had not reached there. They made complaint to police. His statement was recorded by the police after 2-4 days of missing of Nitish.
15. PW2 Vinod Ram deposed that he had been working at A-55 group, Wazirpur Industrial Area. His co- villagers Sanoj, Gore Lal, Kundan Kumar and Nitish also used to work in the same factory. They all alongwith one Bhandari used to reside in one jhuggi/room situated at Shaheed Sukhdev Nagar, Wazirpur Industrial area. On 11.04.2014, all were working in the said factory and ceiling fan was on. Accused Sanoj switched off the fan and Nitish asked him not to switch off the fan. On this issue, they both had a scuffle and extended threats to kill each other. Sanoj told Nitish 'tu mere ko kya marega, main hi tera kaam karwa dunga'. They all intervened and pacified the matter.
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15.1 On 20.04.2014, on call of Sanoj, his brother-in-law
namely Santosh and jija Parmanand arrived at their room. They all consumed liquor at their jhuggi. On 22.04.2014, Parmanand left their jhuggi / room , however, accused Santosh remained with them. On 23.04.2014, after finishing their duty, they reached at the room at about 7 p.m. At around 8 p.m., accused Santosh and Sanoj asked Nitish to accompany them to Ballabhgarh for excursion and thereafter, they all left the jhuggi/room. At that time, Santosh was carrying two quarter bottles of liquor with him. After two-three days, Sanoj arrived at their jhuggi/room alone and took his belongings and left the room and also discontinued working in the factory. He clearly identified both the accused persons.
15.2 PW 2 during his cross-examination deposed that they are residing at Shaheed Sukhdev Nagar for the last 7/8 years. Accused Santosh, brother in law of Sanoj was known to him as he used to visit their room. Santosh and Parmanand had visited their State Vs Santosh and Anr. Page 31 of 55 32 CIS No. 53261/16 16.10.2020 FIR No. 384/14 room on one or two occasions prior to 20.04.2014. He deposed that prior to 11.04.2014 or between 11.04.2014 and 23.04.2014, no quarrel took place between deceased and Sanoj Ram. Besides them, one or two person also used to work in the same room but on 11.04.2014, they were on leave. There was no cooler in the room and only one fan was there. On their asking, Sanoj told that he was not feeling well and was feeling cold, hence, he switched off the fan. Except Nitish none of them opposed for switching off the fan. Scuffle/ hathapai had taken place on 11.04.2014 between Nitish and Sanoj. He deposed that he cannot tell who gave beatings to whom. From 11.04.2014 to 23.04.2014, Nitish and Sanoj Ram both used to work in the factory regularly. They did not ask Sanoj and Nitish as to why they were threatening to kill each other. They left the room at about 7 a.m. in the morning for duties and came back around 7 p.m. He deposed that he does not remember, if, prior to 23.04.2014, Sanoj and Nitish had gone on any excursion tour or not. He deposed that Kundan told him that Sanoj had taken his belongings / articles from the room in their absence when they were in the factory and the belongings of Nitish were lying in the room. He asked Sanoj about Nitish and he told him that he does State Vs Santosh and Anr. Page 32 of 55 33 CIS No. 53261/16 16.10.2020 FIR No. 384/14 not know anything about Nitish and Santosh can tell his whereabouts. He did not obtain the phone number of Santosh and did not contact him. He volunteered that Gorelal passed the information telephonically to the parents of Nitish about his missing. He was cutting vegetables when Sanoj, Santosh and Nitish left the room.
15.3 During cross-examination by counsel for accused Santosh, PW2 deposed that there was no supervisor in the factory. The factory is huge and the work was going on in other rooms also on 11.04.2014. Jagatlal R/o Gorkahpur, UP who was working in the said room was on leave on that day. He resides at Anand Parbat and still working in the said factory. They used to mark their presence in the factory in the notebook. Nitish had come with him to Delhi about 7/8 years ago and they both started working together. They had lived in the jhuggi for two years and used to contribute the rent and any of them gave the same to the landlord. Sanoj never quarreled with anybody in his presence and he used to live peacefully. He deposed that on 23.04.2014, Santosh was wearing pant and shirt . He does not remember the colour of his State Vs Santosh and Anr. Page 33 of 55 34 CIS No. 53261/16 16.10.2020 FIR No. 384/14 clothes. Santosh was having one quarter bottle each in both the pockets of his pant. He deposed that on 23.04.2014, he reached the jhuggi at 7 p.m. and both the accused alongwith Nitish left the jhuggi at 8 p.m.
16. PW 3 Gorey Lal deposed that he had been working at A-55 group, Wazirpur Industrial Area. His co- villagers Sanoj, Kundan Kumar and his cousin Nitish also used to work in the same factory. They allalongwith one Bhandari used to reside in one jhuggi/room situated at Shaheed Sukhdev Nagar, Wazirpur Industrial area. On 11.04.2014, they all were working in the said factory and ceiling fan was on. Accused Santosh switched off the fan and Nitish asked him not to switch off the fan. On this issue, they both had a scuffle and extended threats to kill each other.
16.1 He further deposed that on call of Sanoj, his brother- in-law Santosh and jija Parmanand arrived at their room. They all consumed liquor at their jhuggi. On 22.04.2014, Permanand left their jhuggi/room, however, accused Santosh remained with them.
State Vs Santosh and Anr. Page 34 of 55 35CIS No. 53261/16 16.10.2020 FIR No. 384/14 After two days of leaving of Parmanand, after finishing their duty, they reached at their room. Thereafter, accused Santosh and Sanoj asked Nitish to accompany them to Ballabhgarh for excursion and thereafter, they all left the jhuggi/ room. At that time, Santosh was carrying two quarter bottles of liquor with him. After two-three days, Sanoj arrived at their jhuggi/ room alone and took his belongings and left the room and also discontinued working in the factory. He clearly identified both the accused persons. On being specifically asked about the dates of 20.04.2014 and 23.04.2014, he admitted the same to be correct. He further deposed that on 03.11.2015, he alongwith his uncle Bahadur Mandal and aunt Kunti visited PS Ashok Vihar where IO showed them the photograph of a dead body which was found in the jurisdiction of PS Usman Pur. After seeing the said photographs, from the built of the dead body, clothes and shoes on the dead body, he had identified that the dead body in the photograph was of his cousin Nitish Kumar. He identified the clothes of Nitish Kumar as Ex.P1 colly.
16.2 He during his cross-examination by counsel for State Vs Santosh and Anr. Page 35 of 55 36 CIS No. 53261/16 16.10.2020 FIR No. 384/14
accused Sanoj deposed that Nitish was residing with them for last about one year prior to the incident. There was no quarrel between Nitish and Sanoj prior to 11.04.2014. They had not quarreled even after that day till the date of incident i.e. 23.04.2014. Nitish did not use to interact with any other person in the neighbourhood. He deposed that Sanoj had called Santosh and Parmanand from their native place telephonically. He had made the telephone call to them in their presence in the evening hours. He had not told the IO about Sanoj having called Santosh and Parmanand by giving them a telephone call. After coming from the native village, Santosh stayed in their room for about 5-8 days. Except the accused persons and Parmannad, no occupant of the room used to take liquor in it. He was informed of taking liquor by them by Vinod. He deposed that although the working hours for all of them were common but it was not certain that they used to leave the room together or return from factory together. He volunteered that they used to depart and return after a gap of 2/4 minutes. He deposed that between 20.03.2014 and 23.04.2014, he had seen accused Santosh taking liquor only once and he also had liquor in the pocket of his pant. None has stopped Santosh from State Vs Santosh and Anr. Page 36 of 55 37 CIS No. 53261/16 16.10.2020 FIR No. 384/14 taking liquor. There were no holidays of the factory when accused persons had taken Nitish for excursion . None of them including Vinod had tried to stop them for going to excursion. Vinod had brought Nitish to Delhi. Nitish used to address Vinod as chacha. He had not informed the family of Nitish either on 23.04.2014 or next day about his going to excursion with accused persons. He volunteered that he informed them on the third day of his going.
16.3 During cross-examination by the counsel for accused Santosh, he deposed that the factory management has not issued them any I card and they did not use to sign the attendance register. At the time for going for Ballabhgarh, neither the accused persons nor Nitish had told them the period in which they would return. They had left the room on 23.04.2014 at about 7 p.m. He was on duty in the factory on that day. His duty hours were from 8 a.m to 8 p.m. When he was asked that his duty hours were till 8.30 p.m., how can he say that Nitish had left with accused persons at 7 p.m., he deposed that it was weekly holiday of 23.04.2014 being Wednesday and he was present in the room when accused persons and Nitish had left. Due to inadvertence , he had stated above that State Vs Santosh and Anr. Page 37 of 55 38 CIS No. 53261/16 16.10.2020 FIR No. 384/14 he went to factory on that day . He deposed that Nitish was wearing pant and t shirt while leaving the factory.
17. All these three witnesses have categorically deposed that there was some fight between Nitish and Sanoj on 11.04.14 regarding the issue of fan and they both threatened to kill each other. Sanoj said to Nitish ' tu mere ko kya marega, main hi tera kaam karwa dunga'. They have also deposed that Nitish was last seen with the accused persons on 23.04.2014 at around 8 p.m. when they all left for Ballabhgarh. Since 23.04.2014, Nitish is missing. Though Sanoj came back after 2/3 days, however, he removed all his belongings from the jhuggi and also left the work at factory. It is argued by the Ld. Defence Counsel that the prosecution has not placed on record any document in the form of rent agreement or I card to prove that PW1 to PW3 resided with accused Sanoj and Nitish in the same jhuggi or worked in the same factory, hence, no reliance can be placed upon the testimony of these witnesses. PW1 to PW3 during their cross-examination have deposed that there was no rent agreement and anyone of them used to pay the rent to the landlord. From the facts of the case, it is State Vs Santosh and Anr. Page 38 of 55 39 CIS No. 53261/16 16.10.2020 FIR No. 384/14 evident that the accused Sanoj, deceased Nitish and PW1 to PW3 are labourers and used to work in an unorganized sector. It is common that in such small factories, neither any I-cards are issued nor there is provision of attendance. Further, they were living in jhuggi and it is common that no rent agreement is executed with respect to such jhuggis. Hence, the argument of the Ld. Defence Counsel is without any basis and is not tenable.
18. On the issue of last seen together evidence, in State of Goa Vs. Sanjay Thakran, 2007 (3) Scale 740, the Supreme Court has held as follows:
"28. ... It is a settled rule of criminal jurisprudence that suspicion, however grave, cannot be substituted for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. This Court has applied the above-mentioned general principle with reference to the principle of last seen together in Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir : 2002 (8) SCC 45 as under:
"31. 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 State Vs Santosh and Anr. Page 39 of 55 40 CIS No. 53261/16 16.10.2020 FIR No. 384/14 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..."
"In Ramreddy Rajesh Khanna Reddy and Anr. v. State of Andhra Pradesh JT 2006 (4) SC 16 (para 29)] the Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.
In Jaswant Gir v. State of Punjab (2005) 12 SCC 438, it was observed that:
"5. ...In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the appellant solely on the basis of the 'last-seen' evidence, even if the version of PW 14 in this regard is believed..." xxx From the principle laid down , the circumstance of last- seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other State Vs Santosh and Anr. Page 40 of 55 41 CIS No. 53261/16 16.10.2020 FIR No. 384/14 person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."State Vs Santosh and Anr. Page 41 of 55 42
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(Emphasis Supplied)
19. Learned APP has submitted that the deceased being last seen alive in the company of the accused persons is an important piece of evidence. In Amitava Banerjee @ Amit @ Bappa Banerjee Vs. State of West Bengal, 2012 (1) SCC (Cri)
624. In this case, the circumstances proved by the prosecution formed a complete chain pointing unequivocally towards the guilt of the accused. The deceased was last seen together with the appellant around the time he was abducted, together with other proved circumstances which were explainable only on one hypothesis which was that the appellant was guilty of killing the deceased. In this case, the Supreme Court was concerned with a case under Sections 302, 364 and 201 IPC. The appellant was identified in a test identification parade by the witness who had viewed him in the jungle. Another witness deposed that the appellant had borrowed a spade from him on the pretext of planting and had wrapped its wooden part with newspaper and tied it with a string. As per the postmortem report, the death of the deceased was due to asphyxia caused by throttling and State Vs Santosh and Anr. Page 42 of 55 43 CIS No. 53261/16 16.10.2020 FIR No. 384/14 strangulation (jute string was found on the neck of the deceased). The prosecution had authoritatively established the fact that the appellant had been seen with the deceased going towards the jungle by a witness around the time of his death which was established by medical evidence; recovery of dead body of the deceased from a freshly dug grave on the following day and two leaves of the newspaper; a pair of chappals as well as a bicycle found nearby which belonged to the appellant. It was in this background that the court held that the circumstances proved on record led to only one conclusion which was the guilt of the deceased. The Court also held that the standard of proof required to hold the accused guilty on circumstantial evidence is quite sufficient to establish the chain of circumstances.
20. Thus, in view of the above discussed law, the evidence led by the prosecution has to be examined in the context of proximity of not only time but of place as well.
SITE-PLAN/ POINTING OUT MEMO State Vs Santosh and Anr. Page 43 of 55 44 CIS No. 53261/16 16.10.2020 FIR No. 384/14
21. The prosecution has relied upon pointing out memo Ex. PW18/A, where both the accused persons took the police officials to show that they had killed Nitish at that place. The said pointing out memo in addition to the signatures of the accused persons, also bears signatures of one Mohd. Arif and Salim. These witnesses have been examined as PW18 and PW19 by the prosecution. PW18 Saleem deposed that he had been selling biryani on a cart near bhajanpura flyover on Wazirbad Road. On 1.11.2015, around 3-4 policemen had come there with two persons as they wanted to show the place of commission. He and his neighbour /shopkeeper Arif who had been selling shoes on a cart had accompanied them to a jungle for about half a kilometer. The accused persons to whom he correctly identified in the court had identified the place near a kikar tree and stated that they had taken liquor with the deceased whose name was disclosed by them but he does not remember now and they had stabbed and hit him with stones. He identified his signatures on pointing out memo Ex.PW18/A. Even PW19 deposed on the same lines and identified the accused persons as the same persons who had identified the place near the tree and had stated that they had State Vs Santosh and Anr. Page 44 of 55 45 CIS No. 53261/16 16.10.2020 FIR No. 384/14 taken liquor with deceased and thereafter stabbed and hit him with stone.
22. Both these witnesses have stood the test of cross- examination. It has been argued by the Ld. Defence Counsel for the accused Santosh that PW18 during his cross-examination has deposed that there is no specific landmark from where they had entered into the forest. The witness admitted that the forest mainly comprised of kikar trees. This argument of the ld. Defence counsel is without any basis and is not tenable as both the accused persons in their disclosure statement have narrated the entire incident dated 11.04.2014 when the quarrel took place between accused Sanoj and deceased Nitish. Thereafter, they took him to Yamuna Khadar jungle. PW1 to PW3 have last seen the accused persons with the deceased Nitish on 23.04.2014 at around 8 p.m. and since then he is missing. Pursuant to the disclosure statement of the accused persons, the pointing out memo was prepared and as per the records of PS Usmanpur, dead body of an unknown person was found at the same place as per the pointing out memo Ex.PW21/D which was identified by the accused persons vide memo Ex.PW18/A. Further, as per the DNA report of the mother State Vs Santosh and Anr. Page 45 of 55 46 CIS No. 53261/16 16.10.2020 FIR No. 384/14 of Nitish, her DNA matched with the body of the unknown person which was found at that place vide DD no.43A PS Usmanpur.
23. Undoubtedly, the court cannot rely upon the disclosure statement of the accused, however, the fact remains that the same can be relied upon U/s. 27 of Indian Evidence Act, when any fact is deposed to and 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 discovery may be proved. Both the accused persons in their disclosure statement Ex.PW20/C and Ex.PW20/F not only disclosed the incident dated 11.04.2014 but also that they took Nitish alongwith them at 8 p.m. on 23.04.2014 to ISBT and to Khadar Yamuna Village on 24.04.2014 where they killed him with stone and knife. They correctly pointed out place of incident in the presence of PW18 and PW19. As per the testimony of PW 21 ASI Jagpal, the dead body of an unknown male person was found on the same place which was identified by the accused persons in the presence of public witnesses PW18 and PW19. The accused persons not only identified the place of incident but also described State Vs Santosh and Anr. Page 46 of 55 47 CIS No. 53261/16 16.10.2020 FIR No. 384/14 the manner in which they killed Nitish. Sanoj has stated that he stabbed once in the neck and two times in the stomach of Nitish while Santosh has stated that he hit Nitish with cemented stone three times on his head. It is relevant herein to discuss the testimony of concerned doctor who conducted the postmortem of the body of the unknown male found in the forest Yamuna Khadar.
24. PW26 Dr. Neha Gupta is the concerned doctor who had conducted the postmortem of the body of unknown male on 05.05.2014. She deposed that the body was in a highly decomposed condition. She observed three cut marks on the T shirt which was there on the body as no external ante mortem injuries were seen due to high degree of decomposition and most of the skin and soft tissues had been eaten up by the maggots. She further deposed that on examination of head and neck, she observed greenish discoloration under the scalp with underlined comminuted fracture of the base of the scalp and of the vault. She opined that the time since the death was one week prior to the postmortem examination and the cause of death was shock as a result of ante-mortem injury to head produced by blunt force impact, however, possibility of stab injury to abdomen (co-relating State Vs Santosh and Anr. Page 47 of 55 48 CIS No. 53261/16 16.10.2020 FIR No. 384/14 with the cut marks present on the T shirt), cannot be ruled out, which was not clear due to very high degree of decomposition.
25. The postmortem report Ex.PW26/A corroborates the manner in which the murder was done by the accused persons as disclosed by them in their disclosure statement. Both the accused persons disclosed that accused Santosh took a cemented stone which was lying near Nitish and hit three times on his head, while accused Sanoj who was carrying knife with him, hit Nitish once on his neck and two times in his stomach with the said knife. As per the postmortem report, the cause of death was shock as result of ante mortem injury to head produced by a blunt force impact and three cut marks were found on the T-shirt, hence, the possibility of stab injury to abdomen cannot be ruled out, which was not clear due to heavy degree of decomposition.
RECOVERIES / SEIZURES EFFECTED BY POLICE
26. Further, the clothes which were found on the dead body of the unknown male as per DD no.43A PS Usmanpur were correctly State Vs Santosh and Anr. Page 48 of 55 49 CIS No. 53261/16 16.10.2020 FIR No. 384/14 identified to be of the Nitish by PW 3 Gore Lal and PW24 Deen Mohan Mandal as Ex.P1. Both these witnesses after seeing the photographs from the built of the dead body, clothes and shoes on the dead body identified the dead body of to be Nitish. As discussed above, Nitish was last seen with the accused persons by PW3 Gore Lal.
MOTIVE
27. It has been argued by the Ld. Defence counsels that there was no motive for the accused persons to kill Nitish. They have relied upon the testimony of PW1 to PW3 wherein they have admitted that no quarrel ever took place between Sanoj and Nitish prior to 11.04.2014 and after 11.04.2014. It is argued that it is beyond comprehension that a person would kill the other only due to the fight which happened over the switching off the fan on 11.04.2014. The said arguments ostensibly sounds plausible, however, the prosecution has proved the entire chain of events in which the accused persons killed Nitish. PW1 to PW3 have categorically deposed that during the fight between Nitish and State Vs Santosh and Anr. Page 49 of 55 50 CIS No. 53261/16 16.10.2020 FIR No. 384/14 Sanoj on 11.04.2014, they both threatened to kill each other. PW1 and PW2 have further deposed that Sanoj told Nitish ' tu mere ko kya marega, main hi tera kaam karwa dunga'. Further, it is relevant to note the statement made by the accused persons in the disclosure statements wherein accused Sanoj while disclosing the entire incident dated 11.04.2014 to Santosh stated that he is afraid that Nitish might kill him within ten days as threatened by him and thereafter, called Santosh for his help.
28. The chain of episodes, from taking the deceased into the forest by the accused persons; to the recovery of the dead body of an unknown male from the same place as identified by the accused persons; the consequent matching of the DNA of mother of Nitish with the body of said unknown male recovered from Yamuna Khadar forest; the cause of death being due to injury to head by blunt force impact and three cut marks on the t-shirt; the identity of the decomposed body being clearly established, has completed the chain of circumstantial evidence. The accused persons were last seen with the deceased on 23.04.2014 at around 8 p.m. when they were leaving for Ballabhgarh is clearly established from the testimony of PW1 to PW3. The said witnesses State Vs Santosh and Anr. Page 50 of 55 51 CIS No. 53261/16 16.10.2020 FIR No. 384/14 are the witness of last seen together and thereafter, the decomposed dead body of Nitish was recovered after one week on 29.04.2014 from Jungle Yamuna Khadar. As per the postmortem report, the death was caused one week prior. Further, when the accused Sanoj returned back to the jhuggi alone, he was asked about the whereabouts of Nitish to which he gave evasive reply that he would return after one or two days. Thereafter, he clandestinely left the room with his belongings and also left the factory where he was working. The said fact is also clearly established from the testimony of PW1 to PW3.
29. The statement of Sanoj to PW1 and PW2 that Nitish would come back within one or two days is also one of the element in the circumstances. He had not given any explanation when this fact was put to him during his statement U/s.313 Cr.P.C. If he could not give his explanation, the irresistible inference has to be drawn against him. During the examination of the accused persons U/s.313 Cr.P.C., they stated nothing except denial of the facts put to them. They did not give any plausible explanation to discharge the obligation as saddled by Section 106 of Evidence Act.State Vs Santosh and Anr. Page 51 of 55 52
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30. It is settled law that the inculpatory statement made during examination u/s. 313 Cr.P.C. cannot be used as the evidence but such statement carries its own consequence viz a viz the circumstantial evidence in proving the chain. In Sahadeban Vs. State represented by Inspector of Police, Chennai, Reported in 2003 (Crimes ) 80 (SC), the Apex Court had occasion to observe as follows:
"..................The last circumstance relied on by the courts below pertains to the stand taken by the appellants in the trial as to parting company with Vadivelu. Here we must notice that as discussed hereinabove, the prosecution has established the fact that Vadivelu was seen in the company of the appellants from the morning of 5.3.1985 till at least 5 p.m. on the same day, when he was brought to his house and thereafter his dead body was found in the morning of 6.3.1985. Therefore, it has become obligatory on the appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 Cr.P.C. they have not taken any specific stand whatsoever. ............"
31. No explanation has been offered as regards when the accused persons parted the company of the deceased Nitish after State Vs Santosh and Anr. Page 52 of 55 53 CIS No. 53261/16 16.10.2020 FIR No. 384/14 they were last seen with him on 23.04.2014 at 8 p.m.
32. It has been argued by Ld. Defence Counsel that the weapon of offence i.e. neither the stone nor the knife has been recovered, hence, it is not proved directly that the crime was committed by the accused persons. It is true that the weapon of offence could not be recovered but the opinion of the doctor in respect of the weapon of assault and nature of injury clearly proves that the cause of death of Nitish was assault due to some blunt object on his head and scalp and three knife injuries were found on his clothes. Both the accused persons in their disclosure statement disclosed that once they were sure that Nitish had died, Sanoj threw the knife in bushes and Santosh threw the stone on the other side. It is relevant to note herein that the body was recovered by the police officials of PS Usmanpur on 29.04.2014 and the accused persons disclosed their involvement in the present matter vide disclosure statement dated 31.10.2015 and thereafter, the investigation was carried out. It is probable that after such lapse of time, the weapon of offence could not be traced as it was thrown in the jungle after committing the offence. Thus, the non discovery of the weapon of offence is not fatal to the case State Vs Santosh and Anr. Page 53 of 55 54 CIS No. 53261/16 16.10.2020 FIR No. 384/14 of prosecution, when the chain of circumstantial evidence is otherwise complete.
33. In cases based entirely on circumstantial evidence, the Court has to satisfy itself that the prosecution proves each circumstance alleged against the accused beyond reasonable doubt and also further proves that each link in the chain of circumstances, equally, beyond reasonable doubt. Further, the Court has to always bear in mind that the circumstances proved should be so strong as to unerringly point to the guilt of the accused and none else and lastly that even a single hypothesis of innocence is ruled out ( Reliance placed on Hanumant v. The State of Madhya Pradesh; AIR 1952 SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra : (1984) 4 SCC
116).
34. As discussed above, the prosecution has proved the chain of events that the accused persons in furtherance of their common intention took away Nitish from the jhuggi on 23.04.2014 at around 8 p.m. with the intention to commit his murder. They in State Vs Santosh and Anr. Page 54 of 55 55 CIS No. 53261/16 16.10.2020 FIR No. 384/14 a pre-planned manner enticed Nitish for liquor and took him away to Yamuna Khadar jungle, where they killed him by giving sharp blow with blunt object with a cemented stone on his head and knife injury on his neck and stomach knowing well that he would be killed due to their such act and thereby, killed him. When they were sure that Nitish has died, they in furtherance of their criminal conspiracy threw away the stone and knife in the jungle in order to disappear the evidence against them. The prosecution has proved the chain of events and evidence which clearly and unequivocally points only to the guilt of the accused persons for commission of the crime. The prosecution has proved the case against both the accused persons U/s. 302/364/120B /201 IPC beyond the pales of reasonable doubt. Accordingly, both the accused persons are convicted U/s. 302/364/120B /201 IPC.
Announced in the (KIRAN GUPTA)
open Court on 16.10.2020 ADDITIONAL SESSIONS JUDGE-03
NORTH WEST DISTRICT
ROHINI COURTS,
DELHI/16.10.2020
State Vs Santosh and Anr. Page 55 of 55