Delhi District Court
State vs N. Dev Dass Singha on 6 March, 2010
1
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01-SOUTH
PATIALA HOUSE COURT-NEW DELHI
Sessions Case No : 325/2009/2004
State Vs N. Dev Dass Singha
S/o Sh. Chaura Chand Singha
R/o Vill. Ashra Laubuk
Police Station Lakhipur
Distt. Cachar (Assam)
At present-
H. No. 10, IInd Floor,
Samman Bazar
Bhogal, New Delhi.
FIR No. : 453/2004
PS : Hazrat Nizamuddin
Under Section : 307/302 IPC
Date of Institution
in Sessions Court : 08/12/2004
Date of Institution
in this court : 29/05/2009
Date when arguments
were heard : 16/12/09, 16/01/2010,
21/01/2010, 29/01/2010 and
20/02/2010
Date of judgment : 02/03/2010
JUDGMENT
The SHO P.S. Hazrat Nizamuddin has filed challan 2 against the accused in the court of Metropolitan Magistrate, New Delhi for the trial of the accused for the offences under Sections 307/302 IPC. After supplying the copies to the accused and compliance of provisions of the section 207 Cr.P.C. the learned Metropolitan Magistrate committed the case to the court of Sessions under Section 209 Cr. P.C. for trial of the accused. BRIEF FACTS The prosecution case, in brief, is that on 11/08/2004 on receipt on DD No. 15, the investigating officer received a telephonic information at Police Post Jungpura. ASI Ram Lal to whom the DD No. 15 was given, along with Ct. Arun Kumar went to the spot. Ct. Ghanshyam and SI Sanjiv Kumar also went to the spot. At the spot blood was found spread on the floor and one knife, used for vegetable cutting, the blade of which was broken, was also lying there. One blood stained Dupatta with blood and one folding bed having blood stained sheet and the handle of the knife were also found there. On inquiry it came to their knowledge that one person Dilip who is brother 3 of Devdass, thereafter had taken the injured to the hospital. SI Ram Lal left Ct. Arun Kumar at the spot for his safeguard and went to AIIMS Hospital where he received MLC of injured Nilima. No eye witness was found at the spot. Doctor gave opinion that the injured was unfit for statement. ASI Ram Lal returned to the spot and recorded statement of one Maina Devi who has stated that she was employed in AIIMS Hospital and on that day, i.e., 11/08/2004 at about 1.30 AM she was sitting in her room and heard noise of 'Dham Dham' from the upper room belonging to her brother in law (devar) Ramesh. Nilima used to live in that room along with her husband and children and in another room some boys from the village of her husband used to live. After hearing noise she came. She went up stair and saw the door was closed. She thought that it might be a quarrel between husband and wife so she came back. Again she heard the noise of Dham Dham and went upstair again, the door was closed. She knocked at the door and accused Devdass who used to live in the room above her room came outside from the said room and there was blood on his baniyan. He has stated that Nilima got injured. On 4 being asked why there was blood on his baniyan? He pushed and ran down. Then she went inside the room and saw Nilima in pool of blood (khoon se lathpath). She raised noise 'pakdo pakdo' at that time. Accused ran away from the place. Nilima told her that she was stabbed by Devdass. Neighbour Rajinder came there who made the telephonic call to the police and brother of accused Devdass . Dilip took Nilima in three wheeler scooter to AIIMS hospital. After recording the statement, ASI Ram Lal made endorsement on the rukka and went to Police Station for registration of the case on the basis of which the FIR under Section 307 IPC was registered. The Crime Team was called at the spot by the Investigating Officer. Site plan was prepared. The incriminating articles were seized from the spot. The victim Nilima died in the hospital then the FIR was converted under Section 302 IPC. The postmortem of the dead body of the victim was got done and victim was handed over to her relatives. The accused was arrested. The postmortem report of the victim was conducted during investigation. The scaled site plan was got prepared by draftsman and on completion of the investigation, the 5 challan against the accused was prepared which was filed in the court, as referred before.
CHARGES AND PLEA OF THE ACCUSED PERSONS Prima facie case for the offence under Section 302 IPC was found made out against the accused so the charge was framed accordingly against him on 26/05/2005 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined 19 witnesses in all.
PW1 is Smt. Maina Devi, the complainant who has stated that on 11th August last year she was in her house. At about 11.30 AM she heard a noise of 'Dam Dam'. She went upstairs. The door of stairs of the room was half open and half closed and on seeing her, Devdass, accused then present in the court who was there upstairs in the room closed the door. She came back downstairs. After some 6 time she again heard the noise and she went upstairs again. On finding the door closed, she knocked at the door. Accused came out rushing from the room, gave a strong push to her while running away and while running away, accused was soaked in blood. Blood was there on his banian and hands. He was wearing a jeans pant. She confronted him by saying "tune khoon kar rakha hai". He went downstairs and tried to escape. She raised noise, on seeing Neelima's condition. Neelima was residing with the accused. When she saw her, she was in a seriously injured condition. There were marks of knife blows on her neck, nose, stomach and hands and she was in a very serious condition. She raised noise and one Rajender, neighbour came for help. He telephoned the police. One Ashok brought a three wheeler and she was taken to the hospital. The brother of the accused namely Dilip was also called on telephone and he came and accompanied the deceased to the hospital i.e. AIIMS. She lodged a complaint Ex.PW1/A with the police. Police prepared site plan of the place of occurrence at her instance.
PW2 is Rajinder Singh who has stated that on 11/08/04 at 7 about 11.30/12 noon, he was in his house. Maina Devi raised alarm that accused Devdass after murdering Neelima was running. On hearing her noise, he went on the second floor. When he went in the room of Neelima, he saw that there were injury marks of knife on her person and she was lying in an injured condition. One chunni, knife which was lying on the floor, the bed sheet, the blood lying on the floor were seized by the police. The chunni was seized vide seizure memo Ex. PW 2/A. The bed sheet was seized vide seizure memo Ex. PW 2/B. The blade of knife was seized vide seizure memo ExPW.2/C. Later on handle of the blade of the knife as well as wrapper of the knife, which was brand new was seized vide seizure memo Ex.PW2/D. The blood stains were taken into possession vide memos Ex.PW2/E and F. On 15/08/04, the accused then present in the court was arrested from temple road and handed over to the police. He had also informed the police after apprehending the accused at temple road. After the arrival at the spot, he alongwith the police apprehended and arrested accused vide arrest memo Ex. PW2/G. Personal Search memo of accused is Ex. PW2/H. The 8 witness identified the military green colour handle which is made of rubber type plastic and having red colour plastic near the blade, recovered from the spot as Ex.P1. He identified the knife blade as Ex.P2. He also identified the bed sheet as printed sheet of red, cream and yellow colour as Ex.P3. He identified the printed peach and orange colour chunni having dark brown colour stains as Ex.P4.
PW3 is SI Mohar Singh who visited the spot and made inspection alongwith the crime team. He has stated that no chance prints could be developed. His detailed report is Ex.PW3/A. PW4 is Ct. Balwant Singh who went to the spot on 1/08/04 and took six photographs Ex.PW4/1 to Ex.PW4/6 as per directions of Investigating Officer,the negatives of which are collectively Ex.PW4/7.
PW5 is ASI Sushila who was posted as ASI and was working as Duty Officer on 11/08/04. She proved the carbon copy of the FIR as Ex.PW5/A. PW6 is Ct. Bhagwan Sahai who was posted at Police Post AIIMS, PS Defence Colony. On 11/08/04 at about 5 PM victim Nilima was declared dead by the doctor. The doctor handed over him one 9 sealed parcel and one sample seal. He took the personal search of the victim and one gold chain along with locket and two ear tops were taken out and he handed over the sealed parcel and the gold articles to the Investigating Officer later on. Investigating Officer seized the pulanda vide memo Ex.PW6/A. PW7 is Ct. Arun Kumar who on 11/08/04 alontwith SI Rampal went to the spot at house No. 10, Summon Bazar, Bhogal, 2nd floor where they found blood over a bed. He has stated that on inquiry he came to know that the injured was shifted to hospital. One blood stained chunni and one handle of the knife was also lying there. One bed sheet with blood stains was also lying there. One blade of the knife was also found. ASI Rampal and SI Sanjiv Kumar who also came there went to AIIMS. He was directed by the Investigating Officer to be present at the spot. After sometime both returned to the spot. Investigating Officer recorded statement of Maina Devi, prepared rukka and handed over to him for registration of FIR. Thereafter they went to AIIMS. The duty Constable handed over the Investigating Officer one gold chain and two tops to Investigating 10 Officer and Investigating Officer seized the same. Thereafter they returned to the spot. Accused could not be traced. On 13/08/04, he again joined investigation with Investigating Officer. After postmortem Ct. Arun Kumar handed over to Investigating Officer two sealed parcels and sample seal which Investigating Officer seized vide memo Ex.PW7/A. PW8 is Ashwa Ghosh who has stated that on 11/08/04, he was present at his house at about 11.30 or 12 noon and was watching TV. His wife came to him and told him that some incident had taken place on the ground. One Dilip Kumar used to reside on the second floor in H. No. 10, Summon Bazar. When he came downstairs he saw Dilip present there having the head of his Bhabhi in his lap. His Bhabhi was bleeding profusely. One boy brought a three wheeler. The injured was put in the three wheeler scooter. Name of the injured was Neelima. She was telling him to save her and Devdass had stabbed her with a knife (uncle mujhe bacha lo, Devdass ne mujhe Chaku se mara). She was repeatedly telling Dilip that she was stabbed by Devdass. They removed Neelima to AIIMS. Doctors 11 asked them to donate blood. He and Dilip both agreed to donate blood. She however expired. He identified the accused then present in the court.
PW9 is HC Satyavir Singh. He has stated that on 22/09/04 he was posted at Police Station Hazrat Nizamuddin. On that day as per the direction of Investigating Officer he took 9 sealed pulandas from MHC(M), Hazrat Nizamuddin and deposited the same in FSL, Rohini. After depositing the same he returned to Police Station and handed over the receipt copy to MHC(M). During his possession the seals were not tampered with and were intact.
PW10 is Dilip Kumar, brother of the accused. He has stated that on 11/08/04, at about 11.45 AM he received a message from his reception of office. He came to his house and saw Neelima was lying unconscious at the door of his room and found bleeding injuries over her nose and stomach. He requested the neighbours to help him but no one came forward. In the meantime police came and the injured was taken to hospital. In the hospital the doctor declared her 'dead'. They returned back to their house but police did not allow 12 them to enter the house. He did not know who stabbed Nilima. The witness was cross examined by learned Addl. Public Prosecutor as he was resiling from his earlier statement. In the cross examination he admitted accused is his real brother. He admitted that accused was staying with him on the day of incident. He was confronted with the several statements made by him in his statement to the Investigating Officer.
PW11 is Ct. Ghanshyam who has stated that on 11/08/04, he was posted at Police Station Hazrat Nizamuddin, Police Post Jungpura. On that day at about 12.50 PM he received a telephone call from Rajender Singh that one Neelima was stabbed by her brother in law Devdass. He recorded this information vide DD No. 15 and the copy was handed over to ASI Ramlal for necessary action. He had brought the original DD register and true copy of the same is Ex. PW11/A. He also proved the copy of DD No. 19 as Ex.PW11/B and copy of DD No. 23 as Ex. PW 11/C. PW12 is ASI Balwan Singh who has stated that on 15/08/04 he joined investigation of this case with Investigating Officer and other 13 staff. They went in search of the accused. They inquired about the accused from the residents of area by showing photographs of accused. When they reached near central road, Bhogal one Rajender Singh @ Puran informed them about the presence of accused near Matke Wali Shop. They immediately reached there and on pointing out of Rajender, accused then present in the court was apprehended. He was arrested and his personal search was conducted vide memo Ex.PW2/H. Accused was interrogated and his disclosure statement Ex. PW 12/A was recorded. As per his disclosure the accused took the police to H. No. 10, 2nd Floor, Summon Bazar, Bhogal and pointed out the spot. The Investigating Officer prepared pointing out memo Ex.PW12/B. PW13 is Brojeswar Singha, husband of the victim. He has stated that he was residing at H. No. 10, 2nd Floor, Bhogal, Jangpura alongwith his wife and children. On that day he had left for his office at about 9.30 or 10 AM after leaving his children at school which was near to their house. He was having his office at Khanpur Duggal Colony. He remained present at his office till 12 noon. Thereafter he 14 was sent in the field. When he was going to customers visiting them and he was present at Munirka at about 4 or 4.15 PM, one dealer at Munirka asked him to contact immediately at his office. When he contacted his office he was directed to reach at his house. He reached at his house at 5.15 PM. He saw a large crowd which has gathered outside his house. One Ashok was residing in front of his house. He informed him that his wife had been murdered by accused N. Devdass. He came to know that his wife had already expired. She had already been removed to AIIMS. He identified the dead body of his wife on 13.08.04 and his statement Ex.PW13/A was recorded to this effect. He has also stated that about 10 days prior to incident, accused used un-parliamentary language to his wife. He informed about the conduct of accused to his elder brother. He had also informed about conduct of accused to 3-4 other boys. They all had made accused understand and not to indulge in such acts. Brother of accused had also made him understand. Accused remained mum for some days. However, after some days again the accused started teasing his wife telling that he loved her. His wife had told him about 15 this. He told accused that he was going to vacate the said house in a month.
PW14 is ASI Sardar Singh who was posted as MHC (M) in Hazrat Nizamuddin on 11/08/04 and has stated that on 13/08/04, Investigating Officer SI Sanjiv Kumar has deposited 2 sealed parcels sealed with the seal of Forensic Medicine AIIMS along with sample seal and FSL Form. He had brought the original register No. 19 and photocopy of the relevant part of the same is proved by him as Ex.PW14/A. He has also stated that as per the direction of Investigating Officer he handed over 9 sealed parcels, FSL Form and sample seal to HC Satbir Singh vide RC No. 237/21 for depositing the same at FSL, Rohini. After deposition HC Satbir returned to Police Station and handed over to him the receipt copy. During his possession the seals were intact and were not tampered with.
PW15 is ASI Ram Lal who corroborated with the statement of PW7 Arun Kumar with regard to going to the spot and finding blood spots inside the room and blade of knife and bed sheets having blood. He corroborated with the statement of PW2 Rajinder Singh with 16 regard to seizure of blood stained chunni lying at the spot vide seizure memo Ex.PW2/A, blood stained bed sheet vide seizure memo Ex.PW2/B, blade of the knife vide seizure memo Ex.PW2/C, knife vide seizure memo Ex.PW2/D, sample of blood vide seizure memo Ex.PW2/E, earth control vide seizure memo Ex.PW2/F. He corroborated with statement of PW6 Ct. Bhagwan Sahai with regard to seizure of sealed pulanda vide Memo Ex.PW6/A. He identified the handle of knife as Ex.P1, a metallic blade as Ex.P2, a blood stained bed sheet as Ex.P3, a chunni with blood stains as Ex.P4.
PW16 is ACP Radhey Shyam who has stated that on 12/08/04, he was posted as Additional SHO, Hazrat Nizamuddin and case file was marked to him for further investigation. He searched for the accused but he could not be traced.
On 13/08/04, postmortem over the dead body was conducted. After postmortem the dead body was handed over to relatives of deceased.
On 15/08/04, accused N. Dev Dass then present in the court was apprehended. After interrogation, accused was arrested 17 and his personal search was conducted vide memo Ex.PW2/H. Accused was interrogated and his disclosure statement Ex.PW12/A was recorded. As per his disclosure statement, accused took the police team to H. NO. 10, Second Floor, Summon Bazar, Bhogal and pointed out the spot. He prepared pointing out memo Ex.PW12/B. He recorded the statement of witnesses. Accused was produced before the court and was sent to Judicial Custody. He sent the case properties to FSL. He tendered FSL reports Ex.PX and PY. He stated that the scaled site plan was got prepared and after completion of the investigation challan was prepared.
PW17 is Dr. Arvind Kumar who proved the following antemortem injuries on the person of the victim Nilima:
(1) Incised wound of size 2.6 x 0.3 cms was present obliquely over outer half of left eye brow with tailing directed leftward and downward.
(2) Incised wound about 6 cms long was present obliquely, upper end of which starting from a point 1.5 cms below the medial angle of eye, involving lower half of nose and also involving nasal 18 bone, going deep into nasal cavity and lower end involving the upper lip with associated hemorrhage.
(3) Incised wound of size 2.5 x 0.8 x 2 cms was present horizontally over right angle of mandible, which was 6.5 cms below the right tragus with associated hemorrhage.
(4) Stab wound of size 1.7 x 0.2 x 8 cms was present over back of neck, which was 8 cms below the occiput, just left from midline directed horizontally leftward, track involving posterior cervical muscle and left sternomastoid muscle with hemorrhage in surrounding tissue.
(5) Stab wound of size 2.5 x 1.2 x 3.5 cms was present over right shoulder, 5 cms below tip of right shoulder, 27 cms above right cubital fossa, track going upto head of humerus with associated hemorrhage directed inward, backward and horizontally.
(6) Stab wound of size 1.5 x 0.7 x 4 cms was present over posterior axillary fold on left side which is 19 cms leftside from posterior midline, 13 cms from left shoulder, 32 cms above left anterior iliac spine, track reaching upto the lower end of scapula with 19 associated hemorrhage.
(7) Stab wound of size 2.5 x 1.3 cms was present on another abdominal wall, which was 3 cms below umblicus, 1.5 cms left lateral from midline, 14.5 cms above pubic symphysis, cavity deep, penetrating the inferior vena cava through the opening mesentry was coming out, track was directed upward, backward and medially.
As per his opinion, the time of death was about two days and cause of death in this case was hemorrhagic shock due to injury No.7 as mentioned, caused by sharp edged weapon, sufficient to cause death in the ordinary course of nature. All injuries could be possible with sharp edged weapon and were antemortem in nature. He proved the postmortem report as Ex.PW17/A. PW18 is SI Sanjeev Kumar, Investigating Officer who proved various steps taken by him during investigation of the case. He corroborated with the statement of SI Ram Lal with regard to going to the spot and finding blood spots inside the room and blade of knife, handle of knife lying on the bed sheet and bed sheets having blood 20 lying at the spot. He also stated that he along with ASI Ram Lal went to AIIMS where he found that injured was admitted there. He collected the MLC of the injured. Doctor declared the injured unfit for statement. No other witness was found at the hospital. They returned to the spot. He recorded statement of Smt. Maina Devi which is Ex.PW1/A, gave his endorsement Ex.PW18/A, prepared rukka and handed it over to Ct. Arun Kumar for registration of the FIR. Crime team and photographer were called at the spot. Photographer took photographs. IC-Crime Team handed him over his report of inspection. He prepared site plan Ex.PW18/B with correct marginal notes. He seized one blood stained chunni from the spot. He corroborated with the statement of PW2 Rajinder Singh with regard to seizure of blood stained chunni lying at the spot vide seizure memo Ex.PW2/A, blood stained bed sheet vide seizure memo Ex.PW2/B, blade of the knife vide seizure memo Ex.PW2/C, handle of the knife (blood stained) vide seizure memo Ex.PW2/D. He lifted the sample blood with the help of cotton from the floor and seized it vide seizure memo Ex.PW2/E. He also lifted the earth control and seized it vide 21 seizure memo Ex.PW2/F. He further stated that in the evening injured was declared dead and he along with ASI Ram Lal went to AIIMS. PW6 Duty Ct. Bhagwan Dass handed over him one sealed pulanda sealed with the seal of hospital and sample seal, which he seized vide seizure memo Ex.PW6/A. He also has stated that the postmortem of dead body was conducted and 13/08/04, and after that the case was transferred from him.
On 13/04/08 he joined the investigation. He alongwith IO and ASI Ram Lal went to AIIMS. After post mortem Ct. Arun handed over one sealed parcel and one sample seal to Investigating Officer. Investigating Officer seized the same vide memo Ex.PW7/A. He identified the handle of knife as Ex.P1, a metallic blade as Ex.P2, a blood stained bed sheet as Ex.P3, a chunni with blood stains as Ex.P4.
PW19 is Dr. Madhusudan who has proved MLC of victim as Ex. PW19/A. PLEA AND DEFENCE OF ACCUSED PERSONS 22 In the statement under section 313 CrPC the accused has either denied the incriminating evidence emerging from prosecution case and put to him or has expressed his ignorance about the same. He stated that he is innocent and has been falsely implicated in this case by the investigating agency and he has nothing to do with the alleged commission of offence. He took opportunity to lead evidence but did not produce any evidence in his defence. ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the State, learned counsel for the accused and have gone through the record of the case and relevant provisions of law. The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE 23 In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukhram Nath Vs. Commercial Credit Corpn Ltd. AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shanker Bhaka 24 Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
In Padala Veera Reddy v State of AP, 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 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. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the 25 Hon'ble Apex Court observed as under:
"7. 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 and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v.
Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350);
Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 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 26 consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (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 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 the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (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.
11. 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 27 alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein 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 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."28
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of 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 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.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme 29 Court Cases 67 relied upon by learned counsel for the accused it was held as under:
"8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
In Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh AIR 1952 Supreme Court 343 relied upon by learned counsel for the accused it was held as under:
" In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1938) 2 Lewin 227) where he said:
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to 30 overreach and mislead itself, to supply some little link that is wanting , to take for granted some fact consistent with its previous theories and necessary to render them complete."
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 in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but none 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. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex. P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case. "
In the back drop of the legal position as to criminal cases based on circumstantial evidence the different important aspects of the case/incriminating circumstances appearing against the accused are being examined as follows:31
DYING DECLARATION PW8 Ashwa Ghosh has indicated in his statement that he and the brother of the accused namely Dilip had taken the injured victim Neelima in a three wheeler scooter to the hospital. He stated that the injured was put in the three wheeler scooter. She was telling him to save her and Devdass had stabbed her with a knife. The words used by the witness in the examination-in-chief as to what was stated to him by the victim are "Uncle mujhe bacha lo, Devdass ne mujhe chaku se mara". The witness stated that the victim was repeatedly telling Dilip that she was stabbed by Devdass. The witness also identified the accused in the court.
The above statement of PW8 Ashwa Ghosh as to dying declaration of the victim is attacked by the learned counsel for the accused on the ground that the statement made by the witness regarding dying declaration in the examination-in-chief was confronted with his previous statement recorded by investigating officer in the cross-examination of the witness. Therefore, his statement regarding dying declaration has got no meaning. The learned Additional Public Prosecutor, on the other hand, has argued that the statement the witness is confronted by mistake as in the previous statement made to the police he has also stated about dying declaration of the victim. Therefore, confronting the witness improperly in 32 the cross-examination has got no meaning and should be overlooked.
I have carefully heard the respective arguments and have gone through the record of the case carefully, in this regard. No doubt, as argued by learned counsel for the accused in the cross-examination of PW8, Ashwa Ghosh, he has stated that he has stated to the police in his statement that Neelima had asked him to save her. He was confronted with his statement ExPW 8/DA where it was not so recorded. He also stated in the cross-examination that he has stated to the police in his statement that Neelima was repeatedly telling Dilip that she was stabbed by Devdass. He was confronted with statement ExPW 8/DA where it was not so recorded. It would be appropriate here to see what is written in this regard in the statement of the witness ExPW 8/DA recorded by the investigating officer.
In this statement PW8 has stated that when they were taking the victim in the three wheeler scooter to AIIMS hospital then the said Lady stated by crying that she was stabbed with a knife by Devdass (Devdass ne usey chakuon se mara hai). Therefore, it is not a case in which this witness has not stated anything before the investigating officer about the dying declaration of the victim and has stated about it for the first time in examination-in-chief in the court. When in the statement to the police this witness has stated that the brother of the accused Dilip was also with him 33 when they were taking the victim to the hospital the statement before the investigating officer is that victim has told them that Devdass has hit her with knives, this statement obviously was made before PW8 and Dilip the brother of the accused. Therefore, I agree with learned Additional Public Prosecutor that confronting this witness with the previous statement recorded by the investigating officer in this regard has got no meaning.
Hence, the statement of the deceased while she was being taken in the three wheeler scooter to the hospital made before PW8 Ashwa Ghosh as to the cause of her death or circumstances of transaction which resulted in her death is admissible as dying declaration within the meaning of section 32 of Indian Evidence Act.
It is pertinent to note that the complainant Maina Devi PW1 in her statement made to the investigating officers which led to lodging of the FIR on her statement, has stated in her statement made to police ExPW1/A that the victim informed her that Devdass has inflicted knife injuries on her. But she omitted to state this fact in her statement made in the court and the prosecution also failed to take note of the important aspect to cross- examine her on the question of dying declaration of victim. However, since the statement of PW8 Ashwa Ghosh, in my view, is credible as to the dying declaration of the victim with regard to inflicting injuries on her person by 34 the accused, the failure of PW1 Maina Devi to speak about dying declaration of victim does not render any doubt in the statement of PW8 Ashwa Ghosh in this regard, more so, when PW1 Maina Devi has also proved her statement ExPW 1/A in which there is a reference of dying declaration of the victim to her. Therefore, the statement of PW8 Ashwa Ghosh that the deceased Neelima while being taken to the hospital informed him that accused had inflicted knife injuries on her person is worth believing.
RECOVERY OF INCRIMINATING MATERIAL FROM THE SPOT PW2 Rajender Singh has stated about the recovery of incriminating articles made from the spot by the investigating officer in his presence. He has Proved that the chunni was seized vide memo ExPW 2/8, bedsheet was seized vide memo ExPW 2/B, the blade of knife was seized vide memo ExPW 2/C, the handle of the knife as well as wrapper of the knife was seized vide memo ExPW 2/D, the bloodstains were taken into possession vide memo ExPW 2/E and F. He has identified the handle of the knife as Ex P1, blade of the knife Ex P 2, bloodstained bedsheet Ex P3 and bloodstained chunni as Ex P4. The other prosecution witnesses PW 15 ASI Ram lal, PW 18 SI Sanjiva Kumar have also corroborated the 35 statement of PW2 Rajender Singh in this regard. MEDICAL EVIDENCE The post-mortem report of the victim ExPW 17/A shows nine wounds of different sizes on the different parts of body of the victim woman. The cause of death as per opinion of the doctor PW 17 Arvind Kumar who conducted post-mortem examination of the victim was haemorrhagic shock due to injury No.7 as mentioned in the post-mortem report which was caused by sharp edged weapon and this injury was sufficient to cause death in the ordinary course of nature. According to opinion of the doctor or injuries on the person of the victim could be possible with a sharp edged weapon and all were antemortem in nature. The MLC of the victim ExPW19/A also shows the stab injuries on the person of victim. . Further, FSL report of its Biology Division Shows the incriminating articles recovered from the spot pertaining to the victim had human blood on the same of B Group except the blade of knife on which though the human blood was found but the blood group could not be analysed as there was no reaction found. These findings of FSL indicate that the blood group of the victim was of B Group.
It is also to be noted that the FSL report Ex PY also show that 36 human semen was detected on Exhibits 3a,3b and 3c, i.e., three micro slides having very faint whitish smear deposited by the investigating officer with FSL as per Ex.PX. Surprisingly, the investigating officer did not investigate the possibility of rape of the victim. He ought to have explored this possibility by investigating the matter properly and taking the semen sample of the accused and sending it to FSL for analysis. Failure to do so is certainly a lapse in the investigation of this case. MOTIVE The contention of learned counsel for the accused is that in the case based on circumstantial evidence the proof of motive is an important circumstance and it must be proved by the prosecution which is not done here. Therefore, accused is entitled to be acquitted on this ground alone. Reliance is placed upon the following observations of our Hon'ble High Court in the following two cases.
In Dr. Mahender Singh Dhaiya Vs. State (CBI) 2003 (1) JCC 218 Delhi, relied upon by learned counsel for the accused, it was held as under:
" 12. Motive behind commission of crime is a relevant fact on which evidence can be given. The absence of motive is also a circumstance which is relevant for assessing the evidence. Ordinarily, when there is sufficient direct evidence connecting the accused with the commission of the offence, 37 proof of motive becomes unimportant. But where the entire prosecution case rests on circumstantial evidence, motive undoubtedly plays an important part in such cases."
In Dilbagh Singh Vs. State 1995 JCC 496 Delhi relied upon by learned counsel for the accused, it was held as under:
" 29. The learned counsel forgets that in a case purely based on circumstantial evidence if the motive which is set out by the prosecution is not proved beyond shadow of reasonable doubt the other incriminating circumstantial evidence may lose its importance and it may lead the court to draw an inference that perhaps the appellants were not involved in this crime. But in the present case, as discussed above, a very reasonable doubt has arisen with regard to motive, the offence was committed because the truck was left intact by the culprits although it was stated to be their motive to have taken away the truck. There was no impediment in tne way of the culprits to have taken away the truck after they had committed the murder of Phool Chand. "
The argument of learned Additional Public Prosecutor is that the proof of motive is not essential in a criminal trial and the prosecution does not fail in the absence of proof of motive. It is argued that even in the cases based on circumstantial evidence the absence of proof of motive on the part of prosecution does not break the chain of incriminating circumstances against the accused.
38
I have heard the learned counsel for the accused and the learned Additional Public Prosecutor for the State and have gone through the authorities relied upon by learned counsel for the accused.
It must be remembered that motive is not an essential ingredient of an offence (See State of Mysore Vs. Nanja AIR 1958 Mys 48, p 53; Surajpal Singh Vs. State of Madhya Pradesh 1972 CrLJ 1668, p 1676; Kodur Thimma Reddi AIR 1957 AP 758, 762) and the question of motive need not be considered when the evidence is clear that the particular accused was the assailant (See Narayan Nathu Naik Vs. State of Maharashtra AIR 1971 SC 1656, p 1657, 1971 Mad LJ (Cr) 43; Dore Vs. State of Karnataka (1980) 24 Mad LJ (Cr) 281, p 283 (Kant) (DB); Laxman Singh Vs. Jai Prakash (1984) 2 Crimes 918) and, therefore, there is no burden of proof on the prosecution to establish the existence of any motive. (See State Vs. Durga Charan Bank AIR 1963 Ori 33, p 37; Kishan Vs. State of Rajasthan AIR 1980 Raj LW 510, p 513 (DB)) It is true that motive is not an essential ingredient of the offence of murder and when there is direct evidence about the commission of the offence, motive loses its significance and recedes in the background. (See Gordhan Vs. State of Rajasthan 1987 CrLJ 541, p 547 (Raj) (DB); Dasan Vs. State of 39 Kerala 1987 CrLJ 180, p 184 (Ker) (DB); Suhash Vs. State of Uttar Pradesh 1987 CrLJ 991, p 995, AIR 1987 SC 1222) Existence of motive, even if not an essential component in proof of the offence, (See Arundhati Kentuni Vs. State 34 Cut LT 60, p 68; Bhulakiram Koiri Vs. State 1970 CrLJ 403 (Cal)) assumes importance only where direct and credible evidence is not available and the case rests upon circumstantial evidence. (See Bhagoji Vs. Hyderabad Government AIR 1954 Hyd 196) This legal position was also explained by our Hon High Court in Mahender Singh Dhaiya's case (supra) relied upon by learned counsel for accused.
The real question is whether in a criminal case based on circumstantial evidence would the absence of proof of motive by the prosecution break the chain of incriminating evidence against the accused to entitle him to the acquittal? The answer to this question lies in Mulakh Raj v. Satish Kumar, (SC) 1992(3) R.C.R.(Criminal) 300 : A.I.R.1992 (SC) 1175 : 1992 Cri.L.J. 1529 : 1992(2) Crimes 130 : 1992(3) S.C.C. 43 wherein the following observations were made by Hon Apex Court on the question in issue:
"...................................Undoubtedly in cases of circumstantial evidences motive bears important 40 significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a mater of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case..........................................."
In the light of Mulakh Raj's case (supra) and Dilbagh Singh's case (supra) and Dr. Mahender Singh Dhaiya's case (supra) relied upon on behalf of the accused does not help the accused. Due to the Mulakh Raj's case (supra) though the question motive of accused assumes importance in the cases based on circumstantial evidence as against the case in which the direct evidence is available but the absence of proof of motive has the same effect in both cases. The absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime.
In the backdrop of the above legal position the absence of proof motive has lost its significance in this case based on circumstantial evidence but still proof of motive or absence of it being an important 41 circumstance the fact situation in this regard needs to be analysed.
In the present case, as already discussed, the investigating agency has not properly investigated the case to ascertain whether this case was based on the motive to commit rape and on resistance from the victim woman the accused has committed rape and murder of the victim with the help of knife. But there certainly is evidence of the husband of the victim PW 13Brojeshwar Singha who has stated in the examination-in-chief that about 10 days prior to incident, the accused used unparliamentary language to his wife. He informed about the conduct of the accused to his elder brother. He had also informed about conduct of accused to 3-4 other boys. They made accused understand and not to indulge in such acts. Brother of the accused had also made him understand. He also stated that accused remained mum for some days. However, after some days again the accused started teasing his wife by telling that he loved her. His wife had told him about this. He told accused that he was going to vacate the said house in a month. The statement of the husband of the victim made in the examination-in-chief show that the accused had an evil eye on the victim but she did not reciprocate to his advances made to her. Although the brother of the accused PW10 Dilip is a hostile witness but in the given facts and circumstances from the statement of husband of the victim an 42 inference can be drawn that accused had evil eye on the victim who complained about it to her husband who made accused to reason by making complaints to his brother and other persons so accused was annoyed with the victim which seems to be the motive to commit crime in question by the accused. However, the fact remains that even if motive is not taken to have been proved by the prosecution it does not have any adverse effect on the prosecution case based on circumstantial evidence in the light of Mulakh Raj's case (supra), more so, when besides proving circumstantial evidence the prosecution has also relied upon important evidence of dying declaration of the victim, referred before. LAST SEEN EVIDENCE in a case based on circumstantial evidence the last seen Evidence which means accused was the person who was last seen with the victim, assumes importance. The statement of the complainant PW1 Maina Devi is important for this purpose. Her statement that on hearing the noise 'Dham Dham' she went upstairs and found the room of the victim closed. She came back downstairs. She again heard the same noise and went upstairs again. On finding the door closed, she knocked at the door. Accused came out rushing from the room, gave a strong push to her while 43 running away and he was soaked in blood. This last seen evidence becomes more important by the fact that the witness Maina Devi has seen accused going out/running away from the spot soon after the incident in question. Therefore, the prosecution by producing a reliable witness PW1 Maina Devi has been able to prove that in the room in question in which victim Neelima was attacked with a knife the accused was seen going out of the room soon after the incident. Therefore, this important incriminating circumstance is proved by the prosecution beyond reasonable doubt against the accused.
ACCUSED ESCAPING FROM THE SPOT The statement of PW1 the complainant Maina Devi shows that when she reached upstairs near the room in question after hearing the noise of 'dam dam', she saw that accused came out of the room and on being asked, he pushed her forcibly and ran away and escaped from the spot. Accused was arrested on 15/08/2004.
In Kalloo Passi Vs. State 2009 (4) LRC 129 (Del) (DB) High Court of Delhi relied on behalf of the accused it was observed by Division Bench of our Hon'ble High Court as follows:
"16. It is settled law that mere absconding by itself does not necessarily lead to a 44 conclusion of a guilty mind. The act of self- preservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused (see the decision of Supreme Court reported as Matru Vs. State of UP, AIR 1972 SC 1050).
In Kalloo Passi's case (supra), it is made clear by our Hon'ble High Court relying upon dictum of Hon'ble Supreme Court in Matru's case that though mere absconding by itself does not lead to conclusion of guilty mind of the accused but the act of abscondance along with the last seen evidence of accused being in the company o f the victim can be extremely fatal to the accused. In the present case the complainant PW1 Maina Devi 45 has seen accused in the room of victim and also escaping him from that room by pushing her (PW1 Maina Devi). She, thereafter, went inside the room and saw victim in injured condition. Therefore, it can be said that PW1 Maina Devi has last seen accused and victim. Therefore, the accused escaping from the spot and being last seen in the room of the victim and escaping from it is a very strong incriminating circumstance against the accused.
THE MISSING/ADDITIONAL LINK IN THE CHAIN OF CIRCUMSTANCES Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company.
The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. {See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB)}.The accused absconding after incident is an additional circumstance which reinforces prosecution case, if no explanation is given by the accused as to where they were, indicates their guilty mind. {See Vaman Jaidev Raval v State 46 of Goa, 2007 Cr LJ (NOC) 431 (Bom)}.
It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the false explanation of accused offers an additional link in the chain of circumstances to complete the chain. {See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)}. A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. {See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111}. Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. {See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v 47 Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB)}.
In the present case, in the statement under Section 313 CrPC, accused has denied that PW1 Maina Devi went upstairs and she saw room was half open and half closed and on seeing her, accused who was in the room closed the door then he (accused) came out rushing from the room, gave a strong push to the complainant PW1 Maina Devi while running away and she was soaked in blood. The false answer given by the accused to the incriminating evidence proved by the prosecution through PW1 complainant Maina Devi that on being last seen in the room of the victim and also escaped from it is certainly strong circumstances against the accused in the light of above case law. More so, when the accused has offered no explanation whatsoever about these facts in the statement under Section 313 CrPC.
WEAPON OF OFFENCE NOT SENT FOR EXPERT OPINION It is vehemently argued on behalf of the accused that the broken 48 knife alleged to have been recovered from the spot is not sent to the doctor who conducted post-mortem examination of the victim or to any other medical expert for the opinion that the injuries inflicted on the person of the deceased woman were caused by this knife. Reliance is placed upon several authorities.
In Manpreet Singh Vs. State 2003 (108) DLT 551, relied on behalf of accused it was held as under:
"15. Mr. P.R. Thakur contended that the alleged recovery of knife. Ex.P3 cannot be linked with the offence because admittedly as per the prosecution's own version and as fortified by the sketch of the knife Ex.PW.11/G, the knife Ex.P3 is a single edged weapon. Whereas according to Dr. Arvind Kumar (PW 15) injury Nos. 2 and 3 were caused by a double edged weapon. Hence Ex.P3 being not a weapon of offence, this crime could not have been committed with the same. It proves beyond a shadow of doubt that material link in the chain of circumstance is missing. To support his contention he placed reliance on the decision of Supreme Court in the case of Mohinder Singh Vs. State, 1953 Crl.L.J. 1761 (SC). The facts of that case are that on Dilip Singh was murdered. It was alleged that injuries were caused by the appellant Mohinder Singh and that these injuries were caused by a gun shot which was sufficient to cause his death. On disclosure of accused Mohinder Sijgh 12-Bore licenced gun was recovered. The doctor when examined the gun opined that though cartridges were fired from that gun but he could not say 49 when those were fired last nor could say whether those cartridges were actually fired from the gun in question or from similar gun or guns. Since expert witness did not make any experiment by firing any cartridge from the gun in question nor he compared the marking on the empty cartridges, in that view of the matter the Supreme Court came to the conclusion that the prosecution failed to prove fully the case. The following observation in the said case squarely apply to the facts of this case:
"In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case."
16. Similar view was expressed by the Apex Court in the case of Kartarey and Ors. Vs. State of U.P., 1975 SCC (Crl.) 803. It has been observed that it is important to connect the injuries with the weapon before the guilt of the accused can be brought home. While disposing of the appeal the Apex Court observed as under:-
"We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically of this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g. Stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and 50 no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all orany of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice. "
Since prosecution in that case failed to link the weapon of offence with the injury caused to the victim, hence Apex Court accepted the appeal and set aside the conviction and the sentence.
17. In the case in hand the alleged weapon of offence Ex.P-3 and the iron rod though available with the prosecution yet at the time of the post- mortem of the deceased the said weapons were not produced before thte doctor for his opinion. It was the duty of the prosecution to have produced the same in order to ascertain whether the injury NO.3 could be caused by Ex.P3. The prosecution, to our mind, miserably failed to discharge its burden. This has caused serious prejudice in the cause of justice. As per PW 15 expert's opinion injury No.3 was sufficient to cause the death and the same was inflicted by a double edged weapon. That means the allegedly recovered knife Ex.P3 could not have caused injury No.3 hence can't be linked with the offence. In the absence of there being any evidence linking Ex.P3 with the offence, the mere recovery of a knife from the house of Manpreet can't be a incriminating material against appellant NO.1. Similarly, the recovery of iron rod having not been linked with offence it is not possible to arrive at a conclusion that the injury No.1 was caused with the said iron rod recovered alleged to have been recovered at the instance of appellant No.2. It is important to connect the recovered weapons with the offence in order to bring home the guilt of the 51 accused. In the absence of which no inference can be drawn that the alleged weapons caused the death. Hence, the purported recovery of weapons on the disclosure of appellants has no bearing of the case relevance. Mere recovery of a weapon by itself is no proof that it is the weapon of offence nor furnishes incriminating material against the appellants. As a matter of fact the appeal is liable to be allowed on this ground itself as the alleged weapon of offence i.e. knife has not been connected with the incident. To our mind, important link in the chain stood broken. It cannot be said that the prosecution has proved the entire link in the chain of circumstances leading to no hypothesis other than that of the guilt of the appellants. "
In Durga Lal Vs. State of Rajasthan on 17/7/1987 1987 WLN UC 609, it was held as under:
"Moreover, in this case, prosecution has failed to produce the weapon of offence (Lohadi) in the court not it was shown to the doctor for given his opinion as to whether the injuries received by the deceased could be caused by that weapon. In this connection, learned counsel for the appellant has placed reliance on Ishwar Singh Vs. State of UP where in the Supreme Court has observed that it is the duty of the prosecution that the alleged weapon of the offence should be shown to the medical witness and his opinion invited as to whether any of the injuries on the victim could be caused with that weapon, following an earlier decision in Kartrey Vs. State of U.P."
In Jana Munda Vs. State 1981 Cri.L.J. 1763 , it was held as 52 under:
"12. P. W. 11 Siba Tanti did not support the prosecution case and was cross-examined by the public prosecutor. He resiled from his previous statements before the police that P. W. 2 Routa Munda went to the place of panchayat meeting and reported that the deceased was assaulted by the appellant. P. Ws. 9 and 13 no doubt stated that the appellant produced the axe (M. O. I.) at the police Out Post. But in our opinion M. O. I. has no relevance to the case as it has not been proved to be the weapon of offence."
In Bachan Singh and Ors. Vs. The State of Rajasthan on 23/08/1982 1982 WLN UC 358 , it was held as under:
"20. For all these reasons, we are not prepared to hold that the gun Article 9 was recovered from the possession of Malka Singh. Even assuming that this gun has been recovered from his possession, there is no evidence on the record to prove that the pellet wounds found on the dead body of Dalip Singh deceased were possible to be caused by firing a shot with this gun. In Mohinder Sigh v. The State, A.I.R. 1953 Supreme Court 415, their Lordships held that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with such a weapon. No Ballistic Expert was produced in evidence by the prosecution is this case.
21. In view of the foregoing discussion of the evidence available of the record and our opinion that the evidence produced by the prosecution is not reliable and that independent and reliable 53 evidence which could be produced has bot been produced by the prosecution,we bold that the prosecution has failed to prove beyond reasonable doubt any of the charges framed against the appellants. Like the seven co- accused who have been acquitted by the trial court the appellants also deserve to be given the benefit of doubt and acquitted."
In Joginder Singh Vs. State of Punjab on 30/08/2007 Cr.R No. 161 of 2005 (O & M) , it was held as under:
"......This aspect of the evidence could have been proved by the prosecution by ensuring examination of the weapon by Ballistic Expert. Unfortunately, the prosecution did not do so. In the absence of examination of weapon, it cannot be said with certainty that the bullet, which hit PW-3, indeed was fired from the weapon carried by the petitioner. In fact PW-3 again made an attempt to say that the weapon, which was produced as a case property, was the one which was carried by the petitioner. During his cross- examination, he could not satisfactorily explain that this was the same weapon as he has never noted down the number of weapon or other details, from which he could have been in a position to identify the same. Gopal Dass (DW-
1), the second injured person, however, did not lend much support to the case of the prosecution.
He did not see the bullet being fired from the weapon carried by the petitioner Joginder Singh. He further brought out that large number of other police persons with weapons were present there. In this view of the evidence, it was incumbent upon the prosecution to lead relevant evidence in this regard to rule out the possibility of bullet 54 having been fired from some other weapon. "
In Ishwar Singh Vs. State of U.P. AIR 1976 SC 2423, it was held as under:
" ....... According to Dr. A.P. Mathur, Additional Civil Surgeon, Meerut, who conducted the post- mortem examination, by "some sharp edged pointed weapon". He added that the wound "might have been caused with a ballam". But whose hand was it that dealt this fatal blow with a "sharp edged pointed weapon"? P. W. 1 Mahabir, P. W. 2 Satyapal, P. W. 6 Ram Rikh and P. W. 7 Jait Singh have all repeated that it was Ishwar Singh who struck Chauhal Singh with a ballam. But for the reasons we have already given implicit acceptance of their evidence is not possible and one must look for independent corroboration of the fact. The evidence of Sub-Inspector Karam Chand (P. W. 8) is that a ballam was recovered from Ishwar Sigh's house and a bhalla from Harpal's Dr. Mathur who said that the fatal injury "might have been" caused by a ballam, admitted on cross-examination that he did not know the difference between a ballam and a bhalla. By ballam he meant "such weapon as is sharp edged on both sides, pointed, and less than 2 cm. in width and he added that "if a bhala is of this very shape this injury is possible." It is not disputed that ballam and bhala are weapons of a similar type. Had the doctor seen the weapons seized from the houses of Ishwar Singh and Harpal, it might have been possible for him' to say which of them caused the injury. But the weapons seized were not shown to the doctor. In Kartarey v. State of U.P. (at pp. 80-81) this Court emphasized the importance of eliciting the opinion of the medical witness who had examined the injuries of the 55 victim.
It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.
In this case it is impossible to say with certainty whether the injury was caused by the ballam or the bhala that were seized, and, therefore, whether it was Ishwar Singh or Harpal who was responsible for it, even if one believed that on the day of the occurrence the former carried a ballam and the latter a bhala. Ishwar Singh's conviction under Section 302 of the Indian Penal Code cannot also be sustained in these circumstances."
In Mohinder Singh Vs. The State, AIR 1953 SC 415 it was held as under:
"........... In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was 56 armed with a gun, and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it could have ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a fire-arm being used at such a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of who are mere chance witness and not altogether independent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck."
There can be no denial to the fact that to connect the injuries inflicted on the victim from the weapon of offence allegedly recovered by the investigating agency, it is the duty of the investigating officer to send the weapon of offence for expert's opinion as to whether the injuries inflicted on the person of the victim were caused by the said weapon. In the 57 present case it is not done. Although the authorities relied upon by learned counsel for accused supports his contention that non-sending of the recovered weapon for expert's opinion in such a case may be fatal to the prosecution of the accused. But it is not always that for want of experts opinion in this regard or for want of even recovery of weapon of offence, the prosecution must fail. To substantiate this view it would be appropriate to look at the following case law dealing with different fact situations in different criminal cases in which the weapon of offence was not sent for expert's opinion to know that the injuries sustained by victim were from the said weapon but the prosecution succeeded to prove its case against the accused beyond reasonable doubt.
In Amar Singh v. Balwinder Singh, 2003(1) R.C.R.(Criminal) 701 : A.I.R.2003 (SC) 1164 : 2003 Cri.L.J. 1282 : 2003(2) S.C.C. 518 :
2003(1) Scale 529 SC : 2003(2) J.T. 1 SC: it was held:
"It would have been certainly better if the investigating agency had sent the fire arms and empties to the Forensic Science Laboratory for comparison. However, the report of the Ballistic Expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the fire arms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the 58 testimony of eye-witnesses whose presence on the spot cannot be doubted as they all received gun shot injuries in the incident. In Karnel Singh v. State of M.P., 1995(3) RCR(Criminal) 526 (SC) : (1995)5 SCC 518 it was held that in case of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. In Paras Yadav & Ors. v. State of Bihar, 1999(1) RCR(Criminal) 627 (SC) : (1999)2 SCC 126 while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not .
Similar view was taken in Ram Bihari Yadav v.
State of Bihar, 1998(2) RCR(Criminal) 403 (SC) :
(1998)4 SCC 517 when this Court observed that in such cases the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the 59 medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."
In State of Punjab v. Jugraj Singh, 2002(1) R.C.R.(Criminal) 753 S.C. : 2002 Cri.L.J. 1503 S.C. : A.I.R. 2002 (SC) 1083 : 2002(1) Crimes 329 SC, following observations were made:
"17. Pointing out to another defect of not sending the weapon of offence, the guns, to the ballistic expert for examination for his expert opinion, it is argued that the creditworthiness of the case is totally demolished entitling the respondents the benefit of acquittal. In support of his contention, the learned Counsel relied upon a judgment of this Court in Sukhwant Singh v. State of Punjab, 1995(3) SCC 367 wherein it is held that :
"There is yet another infirmity in this case. We find that whereas an empty had been recovered by PW6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and seized pistol to the ballistic expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial Court or before us. It hardly needs to be emphasised that in cases where injuries are caused by firearms, the opinion of the ballistic expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to 60 produce the expert opinion before the trial Court in such cases affects the creditworthiness of the prosecution case to a great extent."
In that case the evidence of the two eye-witnesses was held inadmissible as they were not examined in terms of Section 138 of the Evidence Act and the Court did not rely upon the sole testimony of Gurmej Singh (PW3). In that context the court observed that failure to produce the expert opinion affected the creditworthiness of the prosecution case to a great extent. Nowhere it was held that on account of failure to produce the expert opinion the prosecution version in all cases should be disbelieved.
18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served for sending the same to the ballistic expert for his opinion. No further question was put to the Investigating Officer in cross- examination to find out whether despite the guns being defective the fire pin was in order or not . In the presence of convincing evidence of two eye-witnesses and other attending circumstances we do not find that the non- examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eye- witnesses.
19. As we find that the impugned judgment is based upon conjectures and hypothesis and the High Court has wrongly ignored the evidence of eye- witnesses, the conclusions arrived by it are erroneous both on facts and on law. We find it a fit case in which, upon review of the judgment and in the light of legal position, the impugned judgment deserves to be set aside."
61
In Vineet Kumar Chauhan v. State of U.P., 2008(1) R.C.R.(Criminal) 565(SC) : 2008 Cri.L.J. 1367(S.C.) it was held as follows:
"10. It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a Ballistic Expert to prove the charge, irrespective of the quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, disclosed by post-mortem notes is consistent with the direct evidence, the examination of Ballistic Expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence. (See :
Gurcharan Singh v. State of Punjab [(1963)3 SCR 585])
11. In Mohinder Singh's case (supra) on which strong reliance is placed on behalf of the appellant, this Court has held that, where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and the prosecution had no evidence to show that another person also shot, 62 and the oral evidence was of witnesses who were not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It is plain that these observations were made in a case where the prosecution evidence was suffering from serious infirmities. Thus, in determining the effect of these observations, the facts in respect of which these observations came to be made cannot be lost sight of. The said case therefore, cannot be held to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if Ballistic Expert is examined. In what cases, the examination of a Ballistic Expert is essential for the proof of the prosecution case, must depend upon the facts and circumstances of each case.
12. In the instant case, having regard to the ocular evidence adduced by the prosecution, there is no reason to discard the prosecution theory that the injury as a result whereof Smt. Premwati suffered complete paralysis of both the lower limbs etc. was caused by a bullet fired from a revolver. The nature of the injury as proved by Dr. P.S. Ahlawat (P.W.5), under whose treatment the deceased remained at Moradabad and Dr. S.P. Singh (P.W.7), who had conducted the post-mortem examination is wholly consistent with the prosecution version. It is clear that the bullet recovered by P.W.7 at the time of post-mortem of the victim had traversed to thoracic spine through the neck from the face near the angle of the jaw, hitting the fifth thoracic vertebra, badly damaging the underlying spinal cord. We are therefore, of the view that on the facts of the present case, the absence of Ballistic Expert's evidence is not fatal to the case of the prosecution, notwithstanding the 63 fact that the Forensic Science Laboratory, in its report dated 18.2.1991, had not expressed a definite opinion about the bullet recovered from the place of occurrence.
13. Insofar as the testimonies of P.W.1 and P.W.2, the two star witnesses of the prosecution, are concerned, from the impugned judgment, it is manifest that the High Court, on analysis of their statements, has found these to be trustworthy. The High Court has observed that testimony of these two natural witnesses is of sterling character with no holes whatsoever. Based on this evidence, the High Court has found that it was the appellant who had opened fire from the revolver from his door, one of which had hit the victim, who had come to close the main door of her house. Nothing has been shown to us so as to warrant interference with the said finding recorded by the High Court.
Therefore, in the context of this unimpeachable evidence, it stands proved that the appellant had gone to the house of the deceased; some unsavoury incident took place there; he returned to his house in a huff; took out the revolver of his father and fired shots towards the house of the deceased; one of the bullets hit the deceased and the same proved to be fatal. Having bestowed our anxious consideration to the evidence on record, in particular the testimony of P.W.1 and P.W. 2, we are of the opinion that the High Court was correct in coming to the conclusion that the appellant was responsible for causing the fatal injury to the deceased. We are also in agreement with the High Court that though as per the post-mortem report the deceased died of septicemia and toxemia because of bedsores, the basic cause of her death was the bullet injury caused to her by the appellant."
64
In Tama @ Tamal Mal v. State of West Bengal, (SC) 2007(4) R.C.R.(Criminal) 479 :A.I.R. 2007(SC) 12 : 2007 Cri.L.J. 4724 : 2007(10) S.C.C. 493 it was held:
"11. When the testimonies of two eye witnesses had been believed by the learned Trial Judge as also by the High Court and in view of the fact that we did not see any reason to differ with the findings of the two Courts, in our opinion, the fact whether the bloodstains collected from the place of occurrence by the Investigating Officer had been sent to the Forensic Expert for chemical examination or not, pales into insignificance. We are furthermore of the opinion that whether the knife was recovered or not is also not of much importance."
In Gyasuddin Khan @ Md. Gyasuddin Khan v. State of Bihar, (SC) A.I.R. 2004 (SC) 210 : 2004 Cri.L.J. 395 : 2003(12) S.C.C. 516 : 2003(9) Scale 401 : 2003(9) J.T. 1 : 2003 SCR 367 : 2005 SCC(Cri) 630 : it was observed as follows:
"9. We find, just as the High Court did, that the version of the eyewitnesses who were all present at the camp at the crucial time is quite consistent and reliable. They have given an account of the incident lasting for a few minutes leading to the death of three police personnel. They have also spoken to the motive, viz., the reprimand and adverse entries made in the register. There was no reason for the fellow policemen to invent a story to implicate the accused against whom none of them had any animosity. If, according to the 65 accused, some armed outsiders were responsible for this incident, the fellow policemen would not have gone to the extent of suppressing that incident and conspiring together to implicate the accused. Some discrepancies in regard to the position from which the accused aimed his firearm at the victims were pointed out. It was then pointed out that no one else was injured, though according to the prosecution, the accused resorted to indiscriminate firing. It was further commented that PW3 who was on sentry duty with a gun should have fired at the appellant if he was the real culprit. Then, it was contended that no witness from the village was examined by the prosecution, though the incident took place in the vicinity of the village. Similar contentions were negatived by the High Court. We do not think that by any reasonable standards, these factors would make a dent on the overwhelming prosecution evidence. So also, contain omissions of the investigating officer have been projected to attack the prosecution version. For instance, it was pointed out that the ballistic expert was not examined to elicit the fact that the empty cartridges recovered could have been fired from the particular sten-gun and the pellets found in the bodies of Ram Pandey and Bhagirath Singh were traceable to the particular sten-gun. Moreover, the bloodstained earth and the shirt of accused should have been sent for chemical analysis and the reports obtained. These lapses in the investigation, for whatever reason it be, do not, to any material extent, affect the veracity of the most natural eyewitnesses who have given a consistent version and who came forward with this version at the earliest opportunity."
In State of Punjab v. Hakam Singh, A.I.R.2005 (Supreme 66 Court) 3759 : 2005 Criminal Law Journal 4111 : 2005 Supreme Court Cases (Criminal) 1679 it was held:
"................Seizure of the fire arms and recovering the empties and sending them for examination by the Ballistic expert would have only corroborated the prosecution case but by not sending them to the Ballistic expert in the present case is not fatal in view of the categorical testimony of P.W.3 about the whole incident."
From the above case law it is clear that if the eyewitness account is credible or the prosecution has led credible evidence with regard to its case to prove the guilt accused the fact that the weapon of offence which is alleged to be used by the accused in inflicting injuries on the person of the victim is not sent to the expert for his opinion to show that the injuries caused to the victim could have been inflicted by the said weapon. Such lapse loses significance to create reasonable doubt in prosecution case. In the present case the prosecution is armed with the dying declaration of the victim Neelima as proved by PW8 Ashwa Ghosh, as referred before. This dying declaration is the statement of the most authentic witness the injured/victim lady Neelima and by no means less than the statement of an eyewitness. It is an important piece of evidence. The knife in question was recovered from the spot and had human 67 bloodstains on it. The number of injuries were inflicted on the person of the victim Neelima which is reflected in the post-mortem report ExPW 17/A and since the knife used was vegetable cutting knife it seems that it could not withstand the force of the assailant in inflicting number of injuries on the person of the victim and so was broken on the spot itself. Although, there was lapse on the part of investigating agency in not taking the opinion of the medical expert from the doctor who conducted post-mortem on the body of the victim that the knife recovered from the spot could have been used in inflicting the injuries on the person of victim. But the strong piece of evidence of the victim injured, i.e., her dying declaration to PW8 Ashwa Ghosh and the fact that when the injuries were being inflicted on the victim there was noise of the "DhumDhum" on hearing which complainant PW1 Smt. Maina Devi climbed the stairs and saw accused inside the room of the victim and also saw him leaving the room by pushing her, PW1 complainant Maina Devi going inside the room and finding the victim in injured condition make PW1 a very very important witness though not an eyewitness but almost an eyewitness. Therefore, in the light of credible evidence produced by the prosecution in this regard and the above case law the norm sending of the knife in question to the medical expert for the opinion whether the knife in question could have been used in inflicting 68 injuries on the person of the victim is not fatal to the prosecution, more so, when the said broken knife in two parts was recovered from the spot and was not recovered from the possession or at the instance of the accused. Therefore, the authorities relied upon by learned counsel for the accused in which weapon of offence was recovered at the instance of accused do not help the accused in the peculiar facts and circumstances of the present case.
DELAY IN SENDING SPECIAL REPORT It is argued on behalf of the accused that there was delay in sending the special report as it is not proved to have been sent forthwith to the illaqa magistrate through special messenger. Reliance is placed upon the authority reported as Ravi Kumar versus State of Punjab 2005 (1) JCC 516 SC wherein following observations were made:
"16. Sending the copy of the special report to the Magistrate as required under Section 157 of the Cr.P.C. is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole olf tthe case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the 69 commission of the crime. Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. "
The perusal of judicial record shows that the rukka ExPW 18/A was sent at about 3.15 p.m. to the police station from the spot registration of the FI R. The FI R was initially registered under section 307 IPC. The time of incident is stated to be of about 12 noon on 11/08/2004. There is endorsement of learned Metropolitan Magistrate dated 12/8/2004 of having seen the carbon copy of the FI R. In the given facts and circumstances of the case it cannot be said that there was inordinate delay in sending a special report to the illaqa magistrate to give rise to presumption of manipulation in the FIR, more so, when the prosecution has led the credible evidence of the complainant PW1 Maina Devi and has also proved the dying declaration of the victim in this 52case to prove its case besides recovery of incriminating articles from the spot by the investigating agency, as referred before. Therefore Ravi Kumar's case (supra) does not come to the rescue of the accused.
70RESULT OF THE CASE In view of the above discussion, I hold that prosecution has been able to prove all the chain of incriminating evidence of the circumstances against the accused beyond reasonable doubt. The authorities of Bhikhwa @ Prakash Vs. The State (NCT of Delhi) 2006 (3) JCC 2040 and Chunni Lal @ Pappu Vs. The State (Delhi Administration) 2006 (2) JCC 878 relied upon on behalf of accused are somewhat on distinguishable facts, so do not help the accused. In the present case the prosecution has proved the dying declaration of the victim implicating the accused and recovery of incriminating material from the spot and also the last seen evidence and also the evidence of the accused escaping from the spot besides the missing/additional link in the chain of circumstances against the accused, referred before. The number of injuries on the person of the victim as shown in the postmortem report Ex.PW.17/A and the force with which these injuries were caused which led to the breaking of the knife clearly show the intention of the accused was to murder the victim and it is not a case in which the accused has committed offence of culpable homicide not amounting to murder. Therefore, the accused is convicted under Section 71 302 IPC. Let he be heard on the point of sentence. Announced in the open court on 02/03/2010 (S K SARVARIA ) Addl Sessions Judge-01/South Patiala House Court/New Delhi 72 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01-SOUTH PATIALA HOUSE COURT-NEW DELHI Sessions Case No : 325/2009/2004 State Vs N. Dev Dass Singha S/o Sh. Chaura Chand Singha R/o Vill. Ashra Laubuk Police Station Lakhipur Distt. Cachar (Assam) At present-
H. No. 10, IInd Floor, Samman Bazar Bhogal, New Delhi.
FIR No. : 453/2004
PS : Hazrat Nizamuddin Under Section : 307/302 IPC Date of Institution in Sessions Court : 08/12/2004 Date of Institution in this court : 29/05/2009 Date when arguments were heard : 06/03/2010 Date of order on sentence : 06/03/2010 ORDER ON SENTENCE
By my judgment dated 21/04/09, the accused is convicted under Section 302 IPC.
Ld. Addl PP has argued that extreme death penalty may be 73 awarded to the convict as he has committed the heinous offence by causing multiple injuries on the person of victim.
Learned Counsel for the accused Sh. Nitin Rai Sharma, Adv. on the other hand, has argued that accused is a young person aged about 33 years, he is in custody since 2004 and it is not the rarest of the rare case, therefore, lessor punishment provided under Section 302 IPC may be awarded to convict.
I have heard learned Additional Public Prosecutor for the state and learned Counsel for the accused, Sh. Nitin Rai Sharma, Adv. and have gone through the record of the case and relevant provisions of law, carefully.
The punishment awarded should be proportionate to the crime committed by the convict. In murder cases besides fine there may be capital punishment or imprisonment for life. Section 354 (3) Cr.P.C. requires that the Court should give special reasons for awarding the death sentence under Section 302 IPC. The settled legal position is that the death penalty is awarded only in rarest of rare murder case. Therefore, the special reasons envisaged by Section 354 (3) CrPC are those which make the case fall amongst the rarest of rare cases. 74
Although in the present case, several injuries are inflicted on the person of the victim but these injuries were inflicted by vegetable knife, the accused is a young person and is not a previous convict. The facts and circumstances of the case mainly rest on circumstantial evidence and do not show that it a rarest of rare case to award extreme penalty to the accused.
Keeping in view the overall facts and circumstances of the case, I do not find this case to be one amongst rarest of rare cases to justify awarding the capital pubishment to the convict. Therefore, the convict is awarded sentence of life imprisonment for the offence u/S 302 IPC. However, in the light of Bidhan Nath alias Parijat Kusum Nath & Ors. Vs. State of Assam 2000 CrLJ 1144 (Gau) (DB) there is no need to award fine in the given facts and circumstances of the case.
Judgment and order on sentence be sent to server(www.delhidistrict courts. nic.in). Copy of judgment and order of
sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open court on 06/03/2010 (S K SARVARIA ) Addl Sessions Judge-01/South 75 Patiala House Court/New Delhi