Delhi District Court
Sc No. 43/12. State vs . Ram Sagar @ Sagar. on 30 January, 2014
SC No. 43/12. State Vs. Ram Sagar @ Sagar.
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDL. SESSIONS JUDGE3 : DWARKA COURTS : DELHI.
In the matter of:
Session Case No. 43/2012.
FIR No. 353/2009.
PS Najafgarh.
U/s 302 IPC.
State.
Vs.
Ram Sagar @ Sagar,
S/o Gunjan Yadav,
R/o Satte Ka Plot,
Bhuton Wali Gali No. 7,
Nangloi, Delhi.
Permanent Address:
Village Amrit Nagar,
District Darbhanga,
Bihar. ... Accused.
Date of Institution. : 24.9.2011.
Arguments Advanced On. : 25.1.2014.
Date of Judgment. : 30.1.2014.
Page No. 1. Contd... ... ...
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:: JUDGMENT ::
1.Briefly stated the facts of the case of the prosecution as per charge sheet are that, on 3.10.2009, case FIR No. 353/09, u/s 302 IPC, was registered at PS Najafgarh, on the statement of complainant Sunita, the contents of which are as under: "Statement of Smt. Sunita W/o Jiya Lal R/o Bohranpur, PS Shahpur, District Aara, Bihar, aged 20 years, stated that I am permanent resident at the aforesaid address and presently residing at Bhuton Wali Gali No. 7, Nangloi, Delhi. My marriage took place 6 months ago, in village, with Jiya Lal. My husband was working in a plastic dana factory in Mangolpuri. One boy, namely, Sagar, residing in our neighbourhood was close friend of my husband and, hence, often used to come to our home to take meal and occasionally used to sleep also. My husband Jiya Lal used to drink too much liquor and his financial condition was poor and he used to occasionally take financial help from Sagar. After few days of marriage, Sagar told that you are very beautiful and how you have got married with this elderly person without looking. From the very start, he (accused Sagar) had evil eye towards me. Once Sagar had teased with me, on which I had scolded him, but, thereafter, also his intention towards me were not good. On 29.9.2009 at about 7.00 pm, Sagar came to our home and told us that he would show us a plot and asked us not worry about the money, Page No. 2. Contd... ... ...
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as we would take the plot jointly. Previously also, Sagar had told about getting plot delivered to us. My husband told that his wife would also accompany. Sagar took the motorcycle of his owner and we all three sat on the said motorcycle and Sagar drove the said motorcycle and took us to the house of one Srikant Yadav, his acquittance at Ranaji Enclave, Najafgarh, and made me sit with his bhabhi, stating that they would return in 10 minutes. I kept sitting outside the house of bhabhi of Sagar and bhabhi of Sagar gave me water and tea etc. and after about one hour Sagar came back on the said motorcycle and his clothes were wet and he was wearing only baniyan (vest) (on the upper portion of his body). The bhabhi of Sagar asked him as to how he had got wet, to which he smilingly replied that someone had thrown mud on him and told me that Jiya Lal bhaiya is calling me. I sat on the back seat of the said motorcycle and after going some distance, Sagar told me that they had withdrawn Rs. 40,000/ from PNB ATM and four people had seen them there. Thereafter, they followed them on two motorcycle and hit their motorcycle, as a result of which both of them fell in the nala (drain) and he reached here and Jiya Lal bhaiya had ran towards colony. On this I asked him to search for my husband, whereupon he stated that it may be possible that Jiya Lal bhaiya may have gone to home at Nangloi and let us go there. Thereafter, I alongwith Sagar, reached Nangloi at 12.00 in the night.
Thereafter, I tried to go to PS with Sagar many times, but he kept on misleading and lastly he said that in case Jiya Lal comes, its fine, otherwise he (Sagar) would keep me as a queen and marry me. When despite my asking Page No. 3. Contd... ... ...
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time and again, Sagar did not accompany me in search of my husband then thinking that since my husband was missing from Najafgarh, I came to PS Najagarh and informed the police about missing of my husband. Thereupon, you took me to Jafarpur Hospital, where on seeing the dead body of my husband, I identified the same. Not only I have doubt, but complete belief that my husband has been killed by Sagar. My husband was lastly seen with Sagar and when Sagar came back, my husband was not with him. Sagar has killed my husband for possessing me. sd"
As per the further story of the prosecution, one unidentified dead body for appropriate proceedings u/s 174 CrPC, vide DD No. 40B dated 1.10.2009, was pending before SI Sri Krishan and on the description (about Jiya Lal), SI Sri Krishan alongwith Const. Narender and Sunita (wife of deceased), went to mortuary of RTRM Hospital, where Sunita identified the dead body and got recorded her aforesaid statement. From the aforesaid statement of Sunita, case u/s 302 IPC was found to have been committed. Hence, case was got registered and the investigation was handed over to SHO concerned. During investigation, IO Inspector Abhey Singh, at the instance of complainant Sunita, arrested the accused Ram Sagar @ Sagar on 3.10.2009, who had come to the said PS. The accused Sagar, while in custody of HC Rajender Singh, had got himself injured in the neck with blade in the Page No. 4. Contd... ... ...
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guise of going to bathroom and he was immediately taken to Orthoplus Hospital and got admitted and since he had tried to commit suicide, therefore, a separate case FIR No. 354/09 dated 3.10.2009, u/s 309 IPC of PS Najafgarh, was registered against him. On 4.10.2009, sustained interrogation was done with accused Ram Sagar @ Sagar S/o Gunjan Yadav R/o Village Amrit Nagar, District Darbhanga, Bihar. His confession statement was recorded and in his confession statement, he disclosed that he loved Sunita and for possessing Sunita, he planned to kill her husband Jiya Lal. In the guise of showing plot at Najafgarh, he took motorcycle of his owner Satyanarayan and took Jiya Lal and Sunita on the same to Ranaji Enclave, Najafgarh. He dropped Sunita at the house of his acquittance Srikant Yadav, with his (Srikant Yadav) wife Anita. He took Jiya Lal near ganda nala (drain), Najafgarh, and got him drink liquor. When he (Jiya Lal) got intoxicated, accused took a stone and hit Jiya Lal on the head with the same. As a result of which, Jiya Lal started writhing and he took him to nala (drain) and drowned him. Thereafter, he took Sunita (wife of Jiya Lal) from the house of Srikant Yadav and falsely stated that while they were going to plot, they had withdrawn Rs. 40,000/ from PNB ATM and four people had seen them there. Thereafter, they followed them on two motorcycle and hit their motorcycle, as a result of which both of them Page No. 5. Contd... ... ...
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fell in the nala (drain) and Jiya Lal bhaiya had ran towards colony. Despite asking of Sunita, time and again, he did not go to PS for lodging report, regarding missing of Jiya Lal. On 3.10.2009, when Sunita went for lodging report then, he (accused) tried to run away, but his owner Satyanarayan caught him and brought him to PS Najafgarh, where Sunita came to lodge her report. On seeing Sunita, he got frightened since Sunita could not become his and he would be arrested in the case of killing of Jiya Lal. He made excuse for going to bathroom and in the bathroom, he got himself injured with the blade. He accepted that he had killed Jiya Lal and got the said place, where he killed Jiya Lal, identified. Site plan was prepared. He further got recovered motorcycle bearing registration no. HR12F3552, which was used by the accused Ram Sagar @ Sagar on the date of incident, which was seized. At the instance of accused Sagar, earth control, blood earth control, (his) blood stained shirt and stone, used in the crime, were seized. Statements of witnesses were recorded and postmortem report was obtained, wherein cause of death was mentioned as "head injury (craniocerebral injury). All injuries mentioned in the report are ante mortem and recent, caused by blunt force against a hard surface/object. Either/both injuries are capable of causing death under normal course of nature. Time of death was approximately 34 days" (prior Page No. 6. Contd... ... ...
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to postmortem). Since from investigation, statements of witnesses and postmortem report, sufficient evidence was found against the accused Ram Sagar @ Sagar, therefore, charge sheet u/s 302 IPC was filed against the accused Ram Sagar @ Sagar. The case of the prosecution further is that the FSL result was filed subsequently during trial.
2. Vide order dated 21.12.2011, Ms. Mamta Tayal, ld.
Predecessor of this Court, framed the charge u/s 302 IPC, against the accused, to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined 21 witnesses.
4. PW1 Satyanarayan has deposed that he had purchased one motorcycle bearing registration no. HR12F3552, but he had not got the same transferred in his name. He further deposed that accused Ram Sagar present in the Court (during deposition and correctly identified) used to work with him and he also used to look after his cattles, had taken his motorcycle in the evening. He further deposed that deceased Jiya Lal was residing in his house with his wife Sunita. He further deposed that he found his motorcycle on the next morning in his house and accused Ram Sagar was also in his house at about 3.00 Page No. 7. Contd... ... ...
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am on the next morning. He further deposed that he did not see the accused going with Jiya Lal at any point of time and he did not take the accused to PS. He further deposed that he had made a call at 100 number. He further deposed that Chanda, daughter of deceased had told him that her father Jiya Lal had gone with accused Ram Sagar and her father had not returned till then. He further deposed that Ram Sagar had told him that he had gone with Jiya Lal and wife of Jiya Lal and that some anti social elements followed Jiya Lal and it was dark. He further deposed that due to this, he raised suspicion and made a call to the police and police had interrogated him. During cross examination by the ld. Addl. PP for State, this witness had admitted that after that day, he did not see Jiya Lal.
5. PW2 Jitender Kumar deposed that in the year 2009, when he was present in his village, he came to know about missing of his brother in law (jija), namely, Jiya Lal and he came to Delhi on 3.10.2009 and after knowing about the death of his brother in law, he went to RTRM Hospital, where he had identified the dead body of Jiya Lal. He further deposed that thereafter, postmortem was conducted and the dead body was handed over to them for cremation. He further deposed that IO had recorded his statement Ex PW2/A, regarding identification of dead Page No. 8. Contd... ... ...
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body.
6. PW3 Anita Yadav deposed that she does not remember the exact date, however, on 29th of one month and year at about 7.00 pm, one lady and one man (accused present in the Court, correctly identified) had come to her house to see a plot and she served tea to that lady. She further deposed that she does not know what happened in this matter, but that lady stayed in her house for some time and the accused had returned after ½ - 1 hour from there on his motorcycle and clothes of accused were wet, to which she asked him (accused) as to what happened on which he (accused) said that he had fallen. She further deposed that thereafter, he (accused) left her house alongwith that lady. She further deposed that she does not know whether any other person was with them or not. During cross examination by the ld. Addl. PP for State, this witness had deposed that police had recorded her statement after 45 days of incident and the incident happened on 29.9.2009. During cross examination by the ld. Addl. PP for State, this witness had deposed that when accused returned to her house, he (accused) was wearing baniyan (vest).
7. PW4 WConst. Meenakshi deposed that on 1.10.2009, she was posted as DD Writer at PS Najafgarh and on that day Page No. 9. Contd... ... ...
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at about 2.38 pm, she had received an information that a body of male was laying in a drain near a Metro Station, Dwarka, Kakrola Mode, which she had recorded vide DD No. 40B, copy of which is Ex PW4/A.
8. PW5 Const. Prem Prakash deposed that on 4.10.2009, he was posted as Constable at PS Najafgarh and on that day, he alongwith SHO Inspector Abhay Singh had joined the investigation of this case and has further stated that accused Ram Sagar (present in the Court, correctly identified) was admitted in Orthoplus Hospital on that day. He further stated that IO interrogated the accused and recorded his disclosure statement Ex PW5/A. Thereafter, accused took them to drain near Metro Piller, Ranaji Enclave, where IO seized blood stained earth control, kept the same in a plastic jar and converted the same in a sealed parcel with the seal of "SS" and seized the same, vide memo Ex PW5/B. He has further deposed that IO also seized earth control in the manner as stated above, vide memo Ex PW5/C. He further deposed that one stone was also seized in the same manner, vide memo Ex PW5/D. He further deposed that accused got his blood stained shirt from the bushes and the said shirt was converted into sealed parcel with the seal of "SS" and was taken into possession, vide memo Ex PW5/E. He further deposed that IO prepared the site plan, thereafter, Page No. 10. Contd... ... ...
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they went to the house of one Anita Yadav and IO recorded her statement. He further deposed that thereafter, they returned to PS. He further deposed that arrest memo and personal search of accused are Ex PW5/F and Ex PW5/G, respectively. He further deposed that one Satyanarayan resident of Nangloi had produced his motorcycle, which was taken into possessing, vide memo already Ex PW1/A. He further deposed that thereafter, accused was produced in the Court and was remanded to JC. This witness has further identified the earth control, blood stained earth control, white coloured blood stained shirt (of accused) and piece of stone as Ex P1, Ex P2, Ex P3 and Ex P4, respectively.
9. PW6 Sunita (wife of deceased) deposed that in December 2009, she was residing in Bhuton Wali Gali, Nangloi, Delhi. She got married with deceased Jiya Lal 67 months prior to date of incident and her husband used to work in a plastic factory. She further deposed that accused Ram Sagar (present in the Court, correctly identified) used to come to their house to meet her husband and sometimes used to take liquor with her husband Jiya Lal. She further deposed that accused used to say as to how he got such a beautiful wife, while he (Jiya Lal) was so old and once accused had teased her, on which her husband had warned the accused. She Page No. 11. Contd... ... ...
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further deposed that on 29.9.2009 at about 7.00 pm, accused came to their house and told them that he (accused) would show a plot to them. She further deposed that accused brought motorcycle of his employer and she alongwith her husband and accused, went to Najafgarh and accused was driving the motorcycle. She further deposed that first of all accused took them to the house of his bhabhi at Rana plot, where accused dropped her outside the said house, where bhabhi of accused served tea to her. She further deposed that accused alongwith her husband went on the same motorcycle and after one hour accused returned there on the said motorcycle and at that time accused was wearing pant and baniyan (vest) and his clothes were wet and bhabhi of accused inquired as to from where he was coming in wet condition, to which accused replied that someone had thrown mud on him. She further deposed that thereafter, accused told her that her husband was calling and took her somewhere on the said motorcycle and told her that he and her husband had withdrawn Rs. 40,000/ from a bank and four persons had seen them and they had followed her husband and accused and thereafter, accused took her to Nangloi at about 12.00 night. She further deposed that till next day, she waited for her husband and then asked accused about her husband, to which accused told her that her husband would come and Page No. 12. Contd... ... ...
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if he (her husband) would not return, then he (accused) would marry her (PW6). She further deposed that on her repeated requests, accused did not assist her in tracing out her husband Jiya Lal. Thereafter, she went alongwith accused to PS Najafgarh, but police did not lodge FIR. Thereafter, she alongwith accused went to nala in order to search for her husband. She further deposed that when they reached at nala, the dead body of her husband was being taken out by the police. She further deposed that after two days her statement Ex PW6/A was recorded by the police. She lastly deposed that she had also identified the dead body of her husband in the hospital.
10. PW7 Const. Narender Kumar deposed that on 3.10.2009, he was posted as Constable at PS Najafgarh and on that day, he alongwith SI Sri krishan had joined the investigation of this case. He further deposed that complainant Sunita had identified the dead body of deceased Jiya Lal in mortuary of RTRM Hospital as her husband. Thereafter, SI Sri Krishan prepared rukka and sent him to PS for registration of FIR and after registration of FIR, he alongwith original rukka and copy of FIR came back to SI Sri Krishan and handed over the same to him. He further deposed that thereafter, he alongwith SI Sri Krishan returned to PS, where he came to know that accused Ram Sagar had attempted to commit suicide by a Page No. 13. Contd... ... ...
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blade and had been shifted to Orthoplus Hospital. Thereafter, he alongwith SI Sri Krishan went to Orthoplus Hospital, where his (PW7) statement was recorded.
11. PW8 SI Sri Krishan deposed that the DD No. 40B was marked to him and he had done the investigation, regarding the same and thereafter, the investigation of this case was taken over by Inspector Abhay Singh, who recorded his (PW8) statement.
12. PW9 Const. Anjani Kumar deposed that on 1.10.2009, he was posted as Constable at PS Najafgarh and on that day, on receipt of DD No. 40B by SI Sri Krishan, he alongwith him, went to the spot i.e. ganda nala under metro line, Ranaji Enclave, where a decomposed dead body was lying in the nala. He further deposed that no injury was visible on the body. Thereafter, on the direction of IO, he took the dead body to the mortuary of RTRM Hospital and got the same preserved for 72 hours. He further deposed that SI got the spot inspected through Crime Team and photographs were taken. He further deposed that so long as the body remained in his custody, nobody had tempered with the same. He further deposed that on 3.10.2009, after the postmortem, the dead body was handed over to the relatives of the deceased. Page No. 14. Contd... ... ...
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13. PW10 Dr. Parvinder Singh, Jr. Specialist, Department of Forensic Medicine, RTRM Hospital, Jafarpur, New Delhi, deposed that he was deputed to appear in the Court on behalf of Dr. John Verghese, who had expired. He further deposed that he had worked with him and had seen him writing and signing in the ordinary course of his official duty and can identify his writing and signatures. He further deposed that he has seen the postmortem report in respect of one Jiya Lal S/o Kishori Shah, aged about 40 years and as per postmortem report, there were two injuries on the body of deceased, one was on back side of head and another was on the neck, as mentioned in the report at point X. He further deposed that as per postmortem report, the cause of death was head injury, as mentioned at point Y, the time since death, as mentioned in the postmortem report was approximately 34 days. He further proved the postmortem report (of deceased) prepared by Dr. John Verghese as Ex PW10/A.
14. PW11 HC Rakesh deposed that on 23.12.2009, he was posed as Constable at PS Najafgarh and on the direction of IO, had taken six sealed parcels alongwith two sample seals to FSL, Rohini, vide RC No. 136/21 for depositing the same in FSL, Rohini, which were, accordingly, deposited and had obtained the acknowledgment in that regard, which he delivered to MHC(M), after returning Page No. 15. Contd... ... ...
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from FSL, Rohini. He further deposed that so long as exhibits remained in his custody, same were intact and nobody tempered with the same.
15. PW12 HC Rajiv deposed that on 1.10.2009, he was posted as HC in Mobile Crime Team, South West District, as Photographer, and on that day, he alongwith Crime Team led by SI Gyanender Rana, went to the spot i.e. ganda nala near Ranaji Enclave under metro line, Najafgarh, where a dead body was lying in the nala and he had taken seven photographs of the scene of the crime, at the instance of Crime Team Incharge and IO SI Sri Krishan. The said photographs are Ex PW12/A1 to Ex PW12/A7 and their respective negatives are Ex PW12/B1 to Ex PW12/B7.
16. PW13 Sri Niwas deposed that on 3.10.2009, he was posted as ASI at PS Najafgarh and on that day, he had joined the investigation of this case and IO had seized two sealed parcels alongwith sample seal, vide memo Ex PW13/A.
17. PW14 HC Hariman deposed that on 3.10.2009, he was posted as Duty Officer at PS Najafgarh from 8.00 am to 8.00 pm and on that day, at about 1.16 pm, on receipt of rukka Ex PW14/B, through Const. Narender, sent by SI Sri Krishan, he recorded FIR No. 353/09, Ex PW14/A. He Page No. 16. Contd... ... ...
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further deposed that he had recorded quaymi DD No. 25A, regarding recording of FIR.
18. PW15 SI Gyanender Rana deposed that on 1.10.2009, he was posted as Sub Inspector in Mobile Crime Team, South West District, Sector9, Dwarka, Delhi, and on that day, on receipt of information vide DD No. 40B, he alongwith staff including HC Rajiv (Photographer), reached under Metro line Kakrola drain, Najafgarh, Delhi, and found one decomposed dead body of male, in the Kakrola drain. He further deposed that SI Sri Krishan of PS Najafgarh with staff were found present there. He further deposed that HC Rajiv (Photographer) had taken the photographs of the spot, from different angles and he prepared the Crime Team report Ex PW15/A and handed over the same to SI Sri Krishan.
19. PW16 Ayodhya Prasad deposed that on 3.10.2009, he identified the dead body of his brother in law, namely, Jiya Lal in the mortuary of RTRM Hospital and his statement Ex PW8/C4, regarding identification of the dead body was recorded.
20. PW17 SI Sanjeev Kumar deposed that on 4.10.2009, he was posted at PS Najafgarh and on the previous day i.e. 3.10.2009, accused (present in the Court, correctly Page No. 17. Contd... ... ...
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identified) was brought to the PS by his landlord, namely, Satyanarayan @ Satte R/o Bhooto Wali Gali, Nangloi, Delhi. He further deposed that accused noticed Sunita, wife of deceased (complainant), was also present in the PS and on seeing her, the accused got perplexed and with an excuse, requested for (going to) toilet. Thereafter, accused went to the toilet, where a shaving blade was lying and accused picked up the same and cut his throat and attempted to commit suicide and when accused cried in pain, then the staff of the PS, rushed towards toilet and noticed the accused in injured condition and got him admitted to Orthoplus Hospital, Najafgarh. He further deposed that a separate case u/s 309 IPC, vide case FIR No. 354/09, was registered in PS Najafgarh against the accused. He further deposed that on next day i.e. on 4.10.2009, he alongwith IO Inspector Abhay Singh, the then SHO Najafgarh, Const. Prem Prakash and Const. Inderjeet went to Orthoplus Hospital, Najafgarh, for interrogation of the accused. Fortunately, accused was discharged from the hospital by that time. He further deposed that accused was interrogated in detail in case FIR No. 353/09 and he made a disclosure statement Ex PW5/A. Thereafter, accused was arrested, vide memo Ex PW5/F and his personal search was carried out, vide memo Ex PW5/G. He further deposed that thereafter, they went to the spot i.e. ganda nala (drain), under metro Page No. 18. Contd... ... ...
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line, near Ranaji Enclave, Najafgarh, Delhi, and accused pointed out the place, where he had murdered Jiya Lal (deceased), where blood was lying, thereafter, at the instance of accused, IO lifted blood stained earth, earth control, a blood stained stone which was lying at the spot and a blood stained shirt, which belonged to accused and which he had thrown in the bushes near the place of incident after murdering Jiya Lal. He further deposed that IO kept blood stained earth and earth control in a plastic jar and converted the same into separate pullandas and sealed the same with the seal of "SS" and took into possession, vide memos Ex PW5/B and Ex PW5/C, respectively. He further deposed that blood stained stone was also converted into pullanda and was sealed with the seal of "SS" and was taken into possession, vide memo Ex PW5/D. The blood stained shirt of accused was also converted into pullanda and was sealed with the seal of "SS" and was taken into possession, vide memo Ex PW5/E. He further deposed that seal after use was handed over to him, thereafter, IO prepared the site plan of the place of incident. He further deposed that thereafter, members of the police party alongwith IO and accused, taking case property reached the place i.e. house of one Anita, where accused had dropped Sunita (wife of deceased), prior to committing of murder of Jiyala. The statement of Anita was recorded Page No. 19. Contd... ... ...
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u/s 161 CrPC. Thereafter, they all went to the Bhooto Wali Gali, Nangloi, Delhi, where Satyanarayan @ Satte, landlord of the deceased, met them there. He further deposed that from there a motorcycle No. HR12F3552, which was of Satyanarayan and which accused had taken from him for using the same in committing the murder of deceased Jiya Lal, was seized, vide memo Ex PW1/A. He further deposed that the statement of Satyanarayan @ Satte was also recorded to this effect. In the meantime, Sunita and her brother Jitender also came there and their statements were recorded by the IO. Thereafter, accused was produced before the Court concerned after completing the necessary formalities and from there accused was sent to JC and he alongwith members of the police party, alongwith IO with case property, came to the PS. He further deposed that IO deposited the case property with MHC(M) and his statement was recorded by the IO. He further proved the said motorcycle, white colour blood stained shirt and piece of stone (blood stained) as Ex P5, Ex P3 and Ex P4, respectively.
21. PW18 Inspector Sukhwinder Singh deposed that on 19.10.2009, he was posted as SHO Najafgarh and on that day, MHC(R) handed over the case file to him, as earlier IO was transferred from PS Najafgarh. He further deposed that he took over the investigation of the present case, Page No. 20. Contd... ... ...
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which remained with him upto 27.11.2009 and during this investigation period, he took the JC remand of accused two times and collected duplicate copy of PCR form. Thereafter, he was transferred from PS Najafgarh and he handed over the case file MHC(R).
22. PW19 Anil Kumar (Retd.) deposed that on 24.11.2009, he was posted as Assistant Draftman in Delhi Police and during that time he was posted in South West District and on that day, he was called by Const. Naresh Kumar. He further deposed that he reached at the spot i.e. near Najafgarh Drain, where SHO of the concerned PS was also present and at the instance of Const. Naresh Kumar, he inspected the spot and took the rough note, measurement and rough sketches, thereafter, he returned to his office and on the basis of rough note, measurement and rough sketches, he prepared the scaled site plan Ex PW19/A, which he subsequently handed over to IO.
23. PW20 Insector R.R. Khatana was subsequent IO of the present case and has deposed about the investigation carried out by him in the present case and the said deposition is also as per the prosecution version.
24. PW21 Insector Abahy Singh was the earlier IO of the present case and has deposed about the investigation Page No. 21. Contd... ... ...
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carried out by him in the present case and the said deposition is also as per the prosecution version.
25. Thereafter, statement of accused u/s 313 CrPC was recorded and all the incriminating circumstances were put to the accused, to which stand of the accused was of general denial and he stated that he is innocent and has no concern with the alleged incident in question and that he has been implicated falsely in the present case.
26. I have heard Sh. Pramod Kumar, ld. Addl. PP for State and Sh. Chanderjeet, ld. counsel for accused (amicus curiae) and have perused the entire record, including written submission filed on behalf of the accused, carefully.
27. There is no eye witness to the case of the prosecution.
The prosecution has based its case against the accused on circumstantial evidence. On the circumstantial evidence, the prosecution has relied upon the motive of the accused that he was in love and was obsessed with Sunita (PW6) (wife of deceased), and wanted to possess her and used to say to Sunita that she is very beautiful and how she has married such an elderly person and also on one occasion, had teased Sunita, on which her husband (deceased) had warned the accused. The prosecution has further relied upon the last seen evidence Page No. 22. Contd... ... ...
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of the accused with the deceased, soon before death of the deceased, to claim that the accused had killed the deceased and subsequent conduct of the accused, after missing of his close friend Jiya Lal (deceased), who had gone with accused on his motorcycle after 7.00 pm on 29.9.2009 and came back alone after an hour on the date of incident and decomposed body of deceased was found in a drain on 1.10.2011.
28. On the first point of motive, Sunita (PW6), wife of deceased, has clearly deposed that the accused used to say (to her husband), as to how he had got such a beautiful wife, while he (Jiya Lal) is so old. She has further deposed that once accused had teased her, on which her husband had warned the accused. She has further deposed that on 29.9.2009, accused took them on the motorcycle of his employer to Najafgarh for showing plot and dropped her outside the home of his bhabhi at Ranaji Enclave, who served teat to her. She further deposed that her husband, who had gone on the motorcycle with accused, did not return and accused came back alone after an hour and told her that her husband is calling her and he (accused) took Sunita (PW6) somewhere on the said motorcycle. She further deposed that accused took her to Nangloi at about 12.00 midnight and till next date, she waited for her husband Page No. 23. Contd... ... ...
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and on next day asked accused about her husband, whereupon accused told her that her husband would come and in case her husband would not come, he (accused) would marry her.
29. From the aforesaid deposition of PW6 (complainant), to which no contrary suggestion was given by accused in cross examination, thereby admitting that part of evidence of PW6 and also no contrary material was brought on record by the accused, it is apparent that the accused was obsessed with the complainant's beauty and wanted to possess her and had even teased her on one occasion earlier and was jealous of his friend Jiya Lal (deceased) having such a beautiful and young wife, despite being old and had a motive to eliminate the deceased and, hence, same is relevant as per Section 8 of the Indian Evidence Act. In the case of "Wakkar Vs. State of Uttar Pradesh", (2011) 3 SCC 306, it was held by Hon'ble Supreme Court that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes importance. Further, in the case of "P.V. Narayana Vs. State of Andhra Pradesh", (1997) 2 Crimes 307 (AP), it was held that if motive is proved, the case of prosecution becomes more easier to connect accused to the alleged incident. Also, in the case of "Arjun Malik Vs. State of Bihar", it was held Page No. 24. Contd... ... ...
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by Hon'ble Apex Court that in a case based on circumstantial evidence, the motive does assume importance.
30. The next circumstantial evidence against the accused is last seen evidence, whereby he was seen accompanying deceased on the motorcycle of his employer for showing a plot and returning back without the deceased, after an hour while he was only wearing pant and baniyan (vest), which was wet. On this point PW6 has deposed that the accused took her and her husband on the motorcycle of his employer for showing a plot at Najafgarh, but dropped her at the house of his bhabhi, at Rana plot, Najafgarh, and went alongwith her husband (deceased) and after one hour, accused returned there alone on motorcycle and he was only wearing pant and baniyan (vest) and his clothes were wet. The bhabhi of accused inquired from him as to from where he has coming in wet condition, on which accused replied that someone had thrown mud on him. Thus, from the testimony of PW6 on the said point, she has incriminated the accused, as the one alongwith whom her husband had gone on the motorcycle, driven by the accused for showing a plot in Najafgarh and the accused returned back alone after an hour, without her husband, in wet clothes. It is pertinent to mention that it has come in the evidence of police prosecution witnesses i.e. PW9 Page No. 25. Contd... ... ...
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Const. Anjani Kumar that the decomposed dead body (which was subsequently identified to be of the deceased by PW2, PW6 and PW16), was found in the drain at Najafgarh, on 1.10.2009. PW8 has corroborated the fact of recovery of said dead body from drain on 1.10.2009 (since the dead body was found decomposed on 1.10.2009, thereby meaning that more then one day had passed since the death of deceased and the death could have occurred on 29.9.2009 after 8.00 pm). Also, the postmortem report of deceased Jiya Lal Ex PW10/A dated 3.10.2009, states that time since death was 34 days, thereby meaning that death of deceased (which is inferred to be homicidal as per postmortem report) could have taken place in the evening of 29.9.2009 after 7.00 pm, when accused had gone with deceased for showing him plot of land and the deceased went missing. This when seen with fact that clothes of accused were found wet by PW6 and PW3 (bhabhi of accused as per her testimony) in the evening of 30.9.2009 after about 8.00 pm, when accused came back alone without the deceased, strongly incriminates the accused that he had role in the homicidal death of deceased. Further, no specific contrary suggestion on the aforesaid material point of last seen evidence to the effect that the accused had not taken the deceased and his wife on motorcycle of his employer, for showing them plot or did not drop the wife of deceased Page No. 26. Contd... ... ...
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at the house of his bhabhi at Rana plot, Najafgarh, or did not go with deceased on said motorcycle or thereafter, did not return back alone in wet condition in baniyan (vest) without shirt, after one hour, was given. Further, from the testimony of PW1 (landlord of deceased and employer of accused) and also from the testimony of PW6, it clear that deceased was not seen alive after 7.00 pm on 29.9.2009 i.e. after his going on motorcycle with the accused. Also, from the aforesaid discussions, it appears that the deceased died a homicidal death after 8.00 pm on 29.9.2009 and thus, there was little time gap between the period when the accused and deceased were last seen alive after 7.00 pm on 29.9.2009 and death of deceased on the same day later on.
31. The Hon'ble Supreme Court in case titled as "Tipparam Prabhakar Vs. The State of Andhra Pradesh", 2009 Cri. LJ 3032, in para no. 8 has held as under: "8. The lastseen theory comes into play where the timegap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of Page No. 27. Contd... ... ...
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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."
32. Also the third circumstantial evidence against the accused is his subsequent conduct after missing of deceased, which is relevant as per Section 8 of the Indian Evidence Act. PW6 has deposed that accused had told her that he and her husband had withdrawn Rs. 40,000/ from PNB ATM and four persons had seen them and they had followed them. From the testimony of PW6 on aforesaid material point, in view of reasons mentioned in foregoing paras and also in view of the fact that no ATM slip for withdrawal of amount or complaint to police regarding alleged following by aforesaid four persons, has been proved by the accused, it appears that the accused had cooked up a story after missing of the deceased. Accused has not denied that he was a close friend of deceased, despite deposition to this effect by PW6. Also, the conduct of the accused in not searching for his close friend, as deposed by PW6 (which fact is not denied by accused by giving contrary suggestion to PW6), after missing of deceased, creates doubt on the accused, as in normal circumstances had the version of accused been correct, he would have searched for his close friend, who was missing. Further, the accused instead of searching Page No. 28. Contd... ... ...
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for the deceased, took the wife of deceased to Nangloi at about 12.00 midnight and even after reaching there, did not make any effort to search the husband of PW6 (as is clear from deposition of PW6). Further, the conduct of the accused in stating that in case her (PW6) husband would not return, he would marry her, shows that he was more interesting in possessing the wife of his close friend (deceased), rather then searching for him. Further, despite repeated requests of PW6, he had not helped her in searching her husband, which is not the conduct of a normal person. No plausible explanation has been given on behalf of the accused for the said unusual conduct. Hence, the subsequent conduct of accused also incriminates him.
33. From the postmortem report Ex PW10/A, it stands established that the there were two antemortem injuries on the body of deceased, one was on back side of head and another was on the neck caused by blunt force impact against a hard surface/object. The said injuries are (1) Laceration of size 7 cm X 2.3 cm on midline, in occipital region just above hairline with underlying fracture and (2) Laceration of size 6.1 cm X 2.2 cm at nape of neck, at level of C2 vertebra, with underlying fracture. The cause of death of deceased was head injury and it was further mentioned that either/both injuries are Page No. 29. Contd... ... ...
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capable of causing death under normal course of nature. The time since death was approximately 34 days. From the same, it stands established that the death of the deceased was homicidal and as discussed above, death occurred in the evening of 29.9.2009 after 7.00 pm, when Jiya Lal (since deceased) went missing.
34. Ld. counsel for accused has submitted that the alleged recovery of blood stained shirt Ex P3 of accused, pursuant to his disclosure statement in police custody, has not been duly proved, as neither any independent public witness was present at the time of alleged recovery nor the FSL report states that the said shirt was having blood stains of the deceased. Although, the nonjoining of an independent public witness, while discovery of new fact or recovery of weapon of offence u/s 27 of Indian Evidence Act, pursuant to disclosure statements of accused in police custody, was not essential to the case of the prosecution (in view of decision of Hon'ble Supreme Court in the case of "State Govt. of NCT of Delhi Vs. Sunil & Another", 2001 Cri. LJ 504 (1)), but the FSL report dated 8.4.2010 regarding blood stains on the said shirt does not prove that the same contained the blood of the deceased. Therefore, the same cannot be connected with the commission of offence. Similar is the case with the blood stained earth control Ex P2 and weapon of Page No. 30. Contd... ... ...
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offence i.e. stone Ex P4 recovered at the instance of accused. Ld. counsel for accused has further stated that PW3 in her examination in chief has merely stated about visit of accused and PW6 and has not stated about the visit or presence of the deceased alongwith them at her residence on the fateful day and the said PW3 has also denied the suggestion of ld. Addl. PP to the contrary effect in her cross examination and, therefore, it does not stand proved that the deceased had visited her (PW3) house on the date of incident. However, I do not find any force in the arguments of ld. counsel for accused, as PW3 has stated in her cross examination by ld. defence counsel that it is correct that she was not knowing the name of the person and lady, who had come alongwith accused on that day, thereby she has admitted the presence of another unknown person and this when seen with the testimony of PW6 on the said point that she alongwith her husband (deceased) and accused, had visited the house of PW3 on 29.9.2009, leaves no doubt in the mind of the Court that the aforesaid three persons had visited the house of PW3 on 29.9.2009 in the evening.
35. Further, ld. counsel for accused has drawn my attention to the examination in chief of PW6 (complainant) to state that the said witness has deposed that she alongwith accused went to PS Najafgarh, but police did not lodge FIR Page No. 31. Contd... ... ...
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and she alongwith accused went to nala (drain) in order to search of her husband and when they reached near ganda nala, the dead body of her husband was searched by the police and two days after that her statement was recorded by the police, to argue that no such thing was stated by her (PW6) in her statement Ex PW6/A that the accused had accompanied the PW6/complainant to PS Najafgarh on that day or that the police refused to lodge the FIR or that thereafter, they went to nala, where the dead body of deceased was taken out by the police or that statement Ex PW6/A was recorded by the police after two days and rather it is mentioned in Ex PW6/A that she went to PS Najafgarh and informed the police about missing of her husband and police took to her to RTRM Hospital, where she identified dead body of her husband, to argue that in view of the said discrepancy, evidence of PW6 is not reliable, as she has contradicted the case of the prosecution on the said points. However, the said minor discrepancy is not fatal to the case of prosecution, as some discrepancies are normal since there is time gap between the incident and deposition of witness and also since the witness has been consistent on material points and some disappearance are expected due to lapse of time. Further, it is well settled that while evaluating evidence, grain is to be separated from chaff. Page No. 32. Contd... ... ...
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36. Also, it is a settled principle of law that every contradiction or discrepancy in the prosecution evidence may not be fatal to the prosecution case and it depends upon the facts and circumstances of the case. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there, have no value at all and are liable to be ignored. In this context, reliance is placed on the judgment of the Hon'ble Supreme Court of India reported as "Hardeep Vs. State of Haryana & Another", 2002 Crl. LJ 3939.
37. Ld. counsel for accused has further drawn my attention to the testimony of PW1 Satyanarayan, the employer of the accused, to argue that the said witness has not supported the version of the prosecution even in his cross examination by ld. Addl. PP for State and in the absence of corroboration by him that accused alongwith Jiya Lal (deceased) and his wife (PW6) had gone on his (PW1) motorcycle on 29.9.2009, the testimony of PW6 (complainant) on the said point, has no value. However, PW6 was consistent that she alongwith her husband and accused, had gone on the fateful day on the motorcycle of PW1 (employer of accused), driven by the accused, which also stands corroborated by inference drawn from testimony of PW3 as discussed above and, hence, absence Page No. 33. Contd... ... ...
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of corroboration of PW1 on the said point, is not fatal to the case of the prosecution. Further, PW1 has also corroborated that once accused had taken his motorcycle in the evening, although, the day was not mentioned and on analyzing his entire testimony, it appears that he was referring to the day when accused took motorcycle on the day on which the deceased went missing. Also, it is well settled that evidence is to be weighed and not counted and it is no rule of evidence that corroboration on any material fact is needed, when the same otherwise does not appear to be doubtful.
38. Ld. counsel for accused has further drawn my attention to the cross examination of PW1, wherein he had admitted that police did not read over the contents of statement Ex PW1/A to him, to argue that the said statement has no evidentially value, as the said witness has admitted having not made such statement. However, in my considered view, no such interference can be drawn as the said witness has merely stated that the police did not read over the contents of PW1/A to him. He has nowhere stated that he did not read the same or the contents of the same, were not explained to him in vernacular and no such suggestion was given on behalf of the accused to the said witness.
Page No. 34. Contd... ... ...
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39. PW1 Satyanarayan, employer of accused, has proved that the accused had taken his motorcycle once in the evening and that he found that the said motorcycle next morning in his house and that Jiya Lal and his wife Sunita, were residing in his house, but after that day, he did not see Jiya Lal.
40. PW2 Jitender Kumar (brother in law/sala of deceased) has proved the identification of dead body of deceased on 3.10.2009, vide Ex PW2/A.
41. From the analysis of entire testimony of PW3 Anita Yadav, it is clear that the accused alongwith one unknown person (appears to be male) and lady had visited her residence on 29.9.2009 at around 7.00 pm and that lady stayed in her house for some time and accused returned there after ½ to one hour and his clothes were wet.
42. PW4 WConst. Meenakshi has proved the DD entry no.
40B Ex PW4/A dated 1.10.2009, regarding information about body of a male lying in drain (nala), near a Metro Station, Dwarka, Kakrola Mode.
43. PW5 Const. Prem Prakash has deposed that the accused made disclosure statement Ex PW5/A (although not admissible in evidence in view of Section 25 of Indian Page No. 35. Contd... ... ...
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Evidence Act) in his presence to the IO and has proved that accused took them to drain near Metro Pillar, Ranaji Enclave, from where IO seized blood stained earth control, earth control and one blood stained stone, which were seized vide memo Ex PW5/B to Ex PW5/E. He has further proved arrest memo and personal search memo of accused as Ex PW5/F and PW5/G. He has further proved that the accused got recovered his blood stained shirt and IO seized the same. He has also proved that the accused produced the motorcycle of Satyanarayan (PW1), vide memo Ex PW1/A. He further proved earth control Ex P1, blood stained earth control Ex P2, blood stained shirt of accused Ex P3 and piece of stone Ex P4, during his testimony.
44. PW7 Const. Narender Kumar has proved that the complainant Sunita had identified the dead body of deceased Jiya Lal in the mortuary of RTRM Hospital, as her husband on 3.10.2009 and thereafter, SI Sri Krishan prepared rukka and sent him to PS for registration of FIR and after registration of IR, he alongwith original rukka and copy of FIR, returned to SI Sri Krishan and handed over the same to him (SI Sri Krishan).
45. PW8 SI Sri Krishan has proved that on 1.10.2009, on receipt of DD No. 40B, he alongwith Const. Anjani, went Page No. 36. Contd... ... ...
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to Rana Enclave ganda nala under metro line, where he found a dead body (subsequently identified to be of deceased) on the bank of nala, which was taken out from the nala and tried to get the said dead body identified from the persons, but none could identified the same and thereafter, the said dead body was preserved in mortuary for 72 hours to get the same identified. He has further proved that on 2.10.2009 at about 10.0011.00 pm, one Jitender alongwith one Ayodhaya came to PS and they inquired whether any dead body was found, on which he replied in affirmative and told the description of the dead body and the clothes of deceased, to which they suspected that the said dead body was of their relative Jiya Lal. He has also corroborated the recording of statement Ex PW6/A of complainant Sunita and his endorsement as the same Ex PW8/A, application for postmortem of dead body of deceased Ex PW8/B and other inquest papers Ex PW8/C1 to Ex PW8/C5 and Ex PW2/A.
46. PW9 Const. Anjani has corroborated SI Sri Krishan, regarding recovery of dead body (subsequently identified to be of deceased) from ganda nala under metro line, Ranaji Enclave, pursuant to DD No. 40B, in his presence and has also deposed that on the instruction of SI Sri Krishan, he got preserved the dead body of deceased in the mortuary of RTRM Hospital and has lastly deposed Page No. 37. Contd... ... ...
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that so long as the dead body remained in his custody, nobody tempered with the same.
47. PW10 Dr. Parvinder Singh proved the postmortem report Ex PW10/A dated 3.10.2009 of deceased.
48. PW11 HC Rakesh has proved that on 23.12.2009, on the direction of IO, he had taken six sealed parcels alongwith two sample sales to FSL and deposited the same with FSL, Rohini, vide RC No. 136/21. He has lastly deposed that so long as the said parcels remained in his custody, nobody tempered with the same.
49. PW12 HC Rajiv proved that on 1.10.2009, on the direction of Incharge, Crime Branch, he had taken photographs of crime scene as Ex PW12/A1 to Ex PW12/A7 and their respective negatives are Ex PW12/B1 to Ex PW12/B7.
50. PW13 Sri Niwas proved that on 3.10.2009, IO had seized two parcels, vide memo Ex PW13/A, in his presence.
51. PW14 HC Hariman deposed that on 3.10.2009, rukka Ex PW14/B sent by SI Sri Krishan, through Const. Narender, was received by him, on the basis of which he recorded FIR Ex PW14/A of present case.
Page No. 38. Contd... ... ...
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52. PW15 SI Gyanender Rana deposed that on 1.10.2009, he prepared the Crime Team report Ex PW15/A.
53. PW19 Anil Kumar (Retd.) proved that on 24.11.2009, at the instance of Const. Naresh Kumar, he inspected the spot and took rough notes, measurement and rough sketches, on the basis of which, he prepared scaled plan Ex PW19/A.
54. All the prosecution witness have deposed consistently on material points and nothing substantial was extracted in their cross examination to demolish the case of the prosecution. The testimony of official witnesses inspire confidence and no material has been brought to the notice to the Court to disbelieve or to discard the same.
55. Admittedly, there is no eye witness to the case of the prosecution and nobody had seen the accused committing the alleged murder of deceased. The case of the prosecution is entirely based on circumstantial evidence. On the point of circumstantial evidence, in the case of "Usman Mian Vs. State of Bihar", 2004 (9) JT 235, it was held in para no. 15 to 23 as under: "15. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have Page No. 39. Contd... ... ...
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been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue which taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
16. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka, 1983 (1) RCR (Crl.) 292 (SC) :
(AIR 1983 SC 446), State of U.P. v. Sukhbasi (AIR 1985 SC 1224), Balwinder Singh v. State of Punjab, 1987 (1) RCR (Crl.) 517 (SC) : (AIR 1987 SC 350) and Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Page No. 40. Contd... ... ...
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Punjab (AIR 1954 SC 621) it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
17. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., 1996 (3) RCR (Crl.) 793 (SC) :
(1996 (10) SCC 193), wherein it has been observed thus: "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
18. In Padala Veera Reddy v. State of A.P., 1990 (2) RCR (Crl.) 26 (SC) : (AIR 1990 SC 79) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly Page No. 41. Contd... ... ...
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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."
19. In State of U.P. v. Ashok Kumar Srivastava, 1992 (3) RCR (Crl.) 63 (SC) :
(1992 Crl. LJ 1104) it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
Page No. 42. Contd... ... ...
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20. Sir Alfred Wills in his admirable book `Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
21. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
22. In Hanumant Govind Nargundkar v.
State of M.P. (AIR 1952 SC 343) it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so Page No. 43. Contd... ... ...
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established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
23. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to Page No. 44. Contd... ... ...
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say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
56. From the aforesaid discussions and the testimony of prosecution witnesses, the entire circumstances that is motive, last seen of accused with deceased prior to death of deceased, who was not seen alive by anybody after 7.00 pm on 29.9.2009 and whose decomposed dead body was recovered 2 days thereafter on 1.10.2009 and it has already been held that the said death occurred after 7.00 pm on 29.9.2009 and also from the subsequent conduct of accused admissible under Section 8 of the Indian Evidence Act, from which guilt of accused is to be drawn, have been fully established, which are consistent with the hypothesis of guilt of accused only and are not Page No. 45. Contd... ... ...
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explainable on any other hypothesis except that accused is guilty and the circumstances are of conclusive nature and tendency and they exclude every other hypothesis except the one to be proved and chain of evidence is so complete as has not left any reasonable ground for the conclusion consistent with the innocence of accused and shows that in all human probability the act must have been done by the accused. Further, the accused has not given any reasonable and believable explanation to the circumstances that inculpated him, in his statement u/s 313 CrPC and thus, same can be counted on providing a missing link for completing the chain of circumstances. Reliance can be placed in cases titled as "State of Maharashtra Vs. Suresh", (2000) 1 SCC 471 and "Jagroop Singh Vs. State of Punjab", (2012) 11 SCC
768. Thus, it stands proved beyond reasonable doubt that the accused, namely, Ram Sagar @ Sagar, in order to fulfill his motive to possess the complainant, took the complainant and her husband in the evening of 29.9.2009 in the guise of showing them plot for purchase and later on killed the deceased on the same day by inflicting injuries, as mentioned in the postmortem report of deceased, which were sufficient in the ordinary course of nature to cause the death of deceased.
57. Let us examine whether the accused is guilty of Page No. 46. Contd... ... ...
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committing the murder as defined u/s 300 IPC. In the case of "Virsa Singh Vs. State of Punjab", AIR 1958 SC 465, it was held by the Hon'ble Supreme Court "Whether the injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injury caused was the result of blow with a knife in the stomach which was given with such force that the weapon had penetrated the abdomen and had injured the bowels. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. Therefore, in the absence of any circumstances to show that the injury was caused accidentally or unintentionally, it had to be presumed that the accused had intended to cause the inflicted injury and the condition of clause (3) of Section 300 IPC were satisfied."
58. In view of the aforesaid discussions and on the basis of postmortem report of deceased and aforesaid case law, it is clear that the intention of the accused was to cause such bodily injuries to Jiya Lal (deceased), which were sufficient in the ordinary course of nature to cause his death which resulted into the death of deceased. The said acts are squarely covered in the definition of murder mentioned in Section 300 (3) IPC. Consequently, the Page No. 47. Contd... ... ...
SC No. 43/12. State Vs. Ram Sagar @ Sagar.
accused, namely, Ram Sagar @ Sagar, is held guilty for the offence u/s 302 IPC.
Announced in the open Court on 30.1.2014.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI Page No. 48. Contd... ... ...