Delhi District Court
State vs Amit Kumar on 12 February, 2015
IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 107/14 ID No. 02403R0030922010 FIR No. 359/09 PS. Vasant Vihar U/s. 302 IPC State Versus Amit Kumar S/o. Sh. Surender Kumar R/o. S99/34, Moti Lal Nehru Camp Munirka New Delhi Date of Institution : 13.01.2010 Final arguments heard on : 28.01.2015 Judgment pronounced on : 10.02.2015 Judgment : Convicted JUDGMENT
Accused Amit Kumar has been tried and prosecuted u/s. 302 IPC. FIR in this case was registered on the statement of Barjeet. Prosecution version FIR No. 359/09 1/31 St. Vs. Amit Kumar unfolded during trial is as under :
1. Sujeet, elder brother of complainant Barjeet, was married with one Jyoti on 15.01.04. Out of this wedlock, one boy namely Kunal was born in the year 2006. In December 2008, Jyoti w/o. Sujeet went with accused Amit and left her son Kunal with Sujeet. Complainant Barjeet, his elder brother Sujeet and accused Amit, were residing at Moti Lal Camp, DDA Flats, Munirka, New Delhi. When Jyoti came back, a panchayat was held in the area and as per the decision of panchayat, marriage between Sujeet and Jyoti was dissolved and thereafter Jyoti started living with Amit in slums. Accused Amit used to taunt and abuse Sujeet on this issue. On 10.11.09 at about 10.30 pm Barjeet and his elder brother Sujeet, were plucking leaves from tree for their goat on the boundary wall of Health Society. Sujeet was standing at a distance of 1015 steps from complainant Barjeet. At that time, accused Amit came on a gray color scooter and hit against Sujeet, as a result of which Sujeet fell down. Accused Amit shouted that he will not spare Sujeet as Sujeet was intending to snatch Jyoti from him. Accused Amit caught Sujeet by collar with his left hand and assaulted on his neck repeatedly with a meat cutting knife. Sujeet after receiving first knife blow from Amit asked Amit to leave him but Amit did not leave Sujeet.
Accused Amit hit Sujeet on his face with the heal of his shoes. When complainant Barjeet came down from the wall and rushed to save his brother, accused Amit rushed towards Barjeet with knife to hit him. FIR No. 359/09 2/31 St. Vs. Amit Kumar Barjeet ran away to his house and called his family members to the spot. By that time, accused Amit had fled from the spot with scooter. Barjeet categorically stated that accused Amit has killed his brother on account of previous enmity regarding Jyoti. Barjeet further stated that on earlier occasions also, accused Amit had been fighting with Sujeet over Jyoti. Information about this incident was received in Police Station Vasant Vihar vide DD no. 21A and thereupon PW13 SI Sujit along with Ct. Mahesh reached cremation ground in front of Moti Lal Nehru Camp, DDA Flats, Munirka and found one person lying in pool of blood in front of gate of cremation ground. Police officials found deep wound with sharp edged weapon on the neck of injured. Inquiry revealed the name of injured as Sujeet, s/o. Naubat Ram, After statement of Barjeet was recorded, dead body was sent to Safdarjung Hospital where the concerned doctor declared Sujeet as brought dead. Thereafter, a case u/s. 302 IPC was registered. ASI Surjit lifted blood sample of deceased and earth control from the spot. Blood stained mat of scooter was lifted from near the dead body and one sleeper was also lifted and seized. Thereafter, investigation of this case was transferred to Inspector Kishore Kumar and accused Amit was arrested from Nelson Mandela Road Near Aggarwal Sweets Munirka on the identification of Barjeet. Disclosure statement of accused Amit was recorded. Accused got recovered the knife and scooter used in the crime. Blood stained pant, jacket, shoes of accused Amit which FIR No. 359/09 3/31 St. Vs. Amit Kumar accused was wearing at the time of commission of crime and was also wearing at the time of his arrest, were seized. Postmortem of the dead body was got conducted. After postmortem, clothes of dead body and blood in gauze, were preserved. In the postmortem, the Doctor opined the cause of death as "hemorrhagic shock due to anti mortem injury to (Rt) common carotid artery produced by sharp edged weapon. Injury no. 13 are produced by sharp edged weapon. Injury no. 1 is sufficient to cause death in ordinary course of nature. Investigating Officer also obtained subsequent opinion of the Doctor on the knife and the concerned Doctor opined that injury no. 1, 2, 3 and 5 are possible by submitted weapon. Inquiry was conducted about the ownership of scooter no. DL3SK 1719 and it was found that the said scooter is registered in the name of Sunil Kumar. Sunil Kumar told the Investigating Officer that he sold the said scooter to Manisha Kanti on 03.03.02. Inquiry further revealed that accused Amit purchased this scooter from one kabadi. On 19.11.09, scooter no. DL3SK 1719 was sent to FSL, Rohini for inspection. Blood stains from front side of scooter and left side of dicky were lifted. After completion of investigation, charge sheet was filed in the Court. Accused was charged u/s. 302 IPC on 10.02.10. Accused pleaded not guilty and claimed trial.
2. I have heard learned Additional Public Prosecutor for the State as well as Mr. S.I. Alam, learned counsel for the accused, at length and carefully perused the record. Prosecution examined 19 witnesses to FIR No. 359/09 4/31 St. Vs. Amit Kumar prove the charge against accused. Statement of accused was recorded u/s. 313 Cr.PC. During his examination u/s. 313 Cr.PC, accused admitted that Jyoti was deserted by Sujeet and accused was married with Jyoti. Accused also admitted that a panchayat was held wherein a divorce was effected between Jyoti and Sujeet and thereafter, accused Amit got married with Jyoti. However, accused denied having ever fought with Sujeet regarding his marriage with Jyoti. Accused stated that on 10.01.09, he had gone to drop his grand mother (maternal) namely Shakuntala at JNU where she was working. Accused further stated that he does not know how to drive scooter. One defence witness namely Shakuntala was also examined on behalf of accused.
3. PW3 Barjeet, PW11 SI Randhir Kumar, PW13 SI Surjeet Singh, PW14 Dr. Abhishek Yadav, PW15 Ct. Suresh Kumar, PW18 Inspector Kishore Kumar, PW19 Ms. Seema Nain, are the material witnesses in this case.
4. PW3 Barjeet, brother of deceased is the star prosecution witness being relied upon by prosecution as eye witness of incident. PW3 Barjeet inter alia deposed that in the year 2009 he was residing at S99/207, Moti Lal Nehru Camp, Munirka, New Delhi, deceased Sujit was his elder brother, deceased Sujit got married in the year 2004 with Jyoti, in the year 2006, a son was born out of the said wedlock, in the year 2008, Jyoti went away with Amit, there was quarrel between deceased Sujit and Amit on this ground every day, a panchayat was FIR No. 359/09 5/31 St. Vs. Amit Kumar convened where a divorce was effected between deceased and Jyoti and Jyoti continued to live with Amit, even after divorce between deceased and Jyoti, accused Amit kept on quarreling with and taunting the deceased. Accused Amit was arrogant because of his relation with the Pradhan of the locality. PW3 Barjeet further deposed that he and his brother deceased Sujit came to boundary wall of Health Centre near cremation ground, PW3 Barjeet was plucking leaves for his goat and his brother Sujit was standing at a distance of 1015 steps, in the meantime, accused Amit came on a gray colour two wheeler scooter and hit against deceased Sujit from behind, deceased fell down, accused Amit drove the scooter over deceased and took out a knife and stabbed deceased Sujit indiscriminately all over with butcher's knife. PW3 Barjeet got down from the tree, accused ran towards him and PW3 Barjeet started running due to fear, at the time of being stabbed deceased Sujit asked Amit to spare him but accused Amit said that he will not leave him on that day, accused Amit also hit on the face of deceased with the heal of his shoes, PW3 returned to spot with his father to whom he had disclosed all the facts, by that time accused Amit had run away with his scooter. PW3 Barjeet further deposed that he made call to police on 100 number, police came at the spot and carried out proceedings and took photographs, police collected blood stained earth control in plastic container with the help of cotton and seized the same vide seizure memo Ex. PW3/A and Ex. PW3/B, FIR No. 359/09 6/31 St. Vs. Amit Kumar police also collected blood stained soil which was sealed in plastic container and was seized vide memo Ex. PW3/C, police also seized sleepers of deceased Sujit vide memo Ex. PW3/D. PW3 Barjeet further deposed that thereafter, deadbody of his brother was sent to hospital and his statement Ex. PW3/E was recorded by police at the spot. Thereafter, accused Amit was arrested vide arrest memo Ex. PW3/F which bears signature of PW3 Barjeet, thereafter, accused Amit got recovered the knife from the roof of his house. Accused Amit also got recovered the scooter which was used in the crime. According to PW3 Barjeet, the Investigating Officer also recovered one pair of shoes of accused Amit which he was wearing at the time of arrest, Investigating Officer also seized blood stained jacket of Amit which was sealed in pulinda and seized vide memo Ex. PW3/K. PW3 Barjeet further deposed that colour of the jacket of accused Amit was blue. PW3 Barjeet further deposed that Investigating Officer also seized blue colour blood stained jeans of accused. PW3 Barjeet identified blood stained gauze in the Court as Ex. PI and Ex. PIA, the knife as Ex. P3, blue colour jeans which accused was wearing at the time of committing the crime as Ex. P4, jacket of blue colour which accused was wearing at the time of committing the crime as Ex. P5, pair of shoes of brown colour which accused was wearing at the time of committing the crime as Ex. P6, piece of blood gauze as Ex. P1B, another blood in gauze as Ex. P1C.
FIR No. 359/09 7/31 St. Vs. Amit Kumar
5. In cross examination, PW3 Barjeet deposed that his brother had complained about affair between Jyoti and Amit to police and also in panchayat but he does not remember the date of complaint. PW3 Barjeet further deposed that he does not know the number of scooter which was used by accused in commission of the crime.
6. PW5 HC Rajbir took the case property of case i.e, sealed knife vide RC No. 112/21 and gave the same to Autopsy surgeon at Safdarjung Hospital. As per the direction of Investigating Officer, PW5 HC Rajbir Singh collected back sealed knife from the doctor along with his opinion and handed over the same to Investigating Officer vide memo Ex. PW5/B.
7. PW6 Chandi Prasad and PW7 Smt. Murti, have deposed about the panchayat which took place to effect the divorce between Jyoti and deceased. PW7 Smt. Murti deposed that it was decided in the panchayat that Jyoti will not be kept by her husband and other family members and she was sent out of her matrimonial home.
8. PW8 HC Vinod Kumar along with Investigating Officer took the scooter no. DL3SK 1719 vide RC No. 118/21/09 to FSL, Rohini, from where blood stains were lifted from the scooter and memo Ex. PW8/A was prepared to the effect. PW10 W/ASI Sunita is the Duty Officer who registered FIR as well as DD No. 21A and proved the same in the Court.
9. PW11 SI Randhir Singh (Retd) deposed that accused Amit along FIR No. 359/09 8/31 St. Vs. Amit Kumar with one more person was arrested by him for the offence 107/151 Cr.PC when he after receiving DD No. 44A reached the spot where accused Amit was quarreling with his neighbourer Sanjay. Copy of kalandra u/s. 107/151 Cr.PC was proved by PW11 as Ex. PW11/A.
10. PW13 SI (Rtd.) Surjit Singh is the police official to whom DD No. 21A was assigned. After receiving same, PW13 SI (Rtd.) Surjit Singh along with Ct. Mahesh reached the spot i.e, Moti Lal Nehru Campus Munirka in front of cremation ground, where a dead body was lying. PW13 SI (Rtd.) Surjit Singh informed senior officials and then SHO PS Vasant Vihar reached the spot, Crime Team was called and spot was inspected, dead body was sent to Safdarjung Hospital, MLC of deceased was obtained. PW13 SI (Rtd.) Surjit Singh prepared detailed ruqqa Ex. PW13/A and got the case registered through Ct. Surender. PW13 SI (Rtd.) Surjit Singh further deposed that he lifted the blood, blood stained control, etc. from the spot vide memo Ex. PW3/A, Ex. PW3/B, Ex. PW3/C. PW13 SI (Rtd.) Surjit Singh also seized chappal from the spot vide memo Ex. PW13/D.
11. PW14 Dr. Abhishek Yadav, Asstt. Professor, Deptt. of Forensic Medcine, Safdarjung Hospital, conducted postmortem on the dead body of deceased Sujit and gave his report Ex. PW14/A. PW14 Dr. Abhishek Yadav in postmortem report opined that cause of death was hemorrhagic shock due to ante mortem injury to right common carotid artery produced by sharp edged weapon. Injury no. 1, 2 and 3 were FIR No. 359/09 9/31 St. Vs. Amit Kumar produced by sharp edged weapon. Injury no. 1 was sufficient to cause death in ordinary course of nature.
12. PW14 Dr. Abhishek Yadav, also deposed that dead body was wrapped in body bag, wearing yellow shirt, jeans, blue underwear and chappal. Clothes were blood stained at places, which were sealed and handed over to Investigating Officer with sample seal. PW14 Dr. Abhishek Yadav further deposed that on 12.11.09, he received an application with sealed pulinda regarding opinion for injury and weapon examination. PW14 Dr. Abhishek Yadav after going through postmortem report and throughly examining the weapon, was of the opinion that injury no. 1, 2, 3 and 5 were possible by the submitted weapon.
13. PW15 Ct. Suresh Kumar was posted as Constable in PS Vasant Vihar, on that day, he along with Ct. Surender, was on patrolling duty on 10.11.09. PW15 Ct. Suresh Kumar deposed that he along with Ct. Surender reached Moti Lal Nehru Camp where ASI Surjeet Singh and Ct. Manoj met them and they found that a dead body was lying at the gate of samshan ghat. PW15 Ct. Suresh Kumar further deposed that they came to know the name of deceased as Sujit @ Kalu, brother of Sujit met police officials at the spot and Investigating Officer recorded his statement.
14. PW16 HC Girdhar Singh is the photographer who took five photographs of dead body as per the direction of Investigating Officer FIR No. 359/09 10/31 St. Vs. Amit Kumar and proved same as Ex. PW16/1, 2 and 4 and negatives were proved as Ex. PW16/5 (colly).
15. PW17 Dr. Jashanpreet Singh, examined the deceased and deposed that Sujit was brought dead. PW17 Dr. Jashanpreet Singh prepared the MLC Ex. PW17/A and prepared the report Ex. PW17/C.
16. PW18 Inspector Kishore Kumar is the Investigating Officer of this case. PW18 Inspector Kishore Kumar inter alia deposed that on 10.11.09 he was posted as Inspector in Police Station Vasant Vihar, investigation of this case was marked to him after registration of case, PW18 Inspector Kishore Kumar reached the spot i.e, Moti Lal Nehru Camp. DDA Flats, Munirka, ASI Surjeet Singh along with his staff met PW18 there, complainant also met PW18 Inspector Kishore Kumar, ASI Surjeet Singh handed over sealed pulindas to PW18, PW18 Inspector Kishore Kumar prepared site plan Ex. PW18/A on the pointing out of complainant Barjeet. PW18 Inspector Kishore Kumar searched the accused and at about 6 pm, accused Amit Kumar was arrested from near Aggarwal Sweet, Nelson Mandela Road, at the time of arrest of accused, complainant Barjeet and Ct. Mahesh were with Investigating Officer and complainant identified the accused before his arrest, disclosure statement Ex. PW18/C of accused was recorded and he disclosed that he can get recovered the scooter by which he struck against deceased and the knife i.e, weapon of offence. Accused further disclosed that he was wearing same clothes which he was wearing at FIR No. 359/09 11/31 St. Vs. Amit Kumar the time of incident. PW18 Inspector Kishore Kumar further deposed that thereafter, accused took PW18 and other persons to jhuggi no. S99/34, Moti Lal Nehru Camp, Munirka and got recovered the scooter no. DL3SK 1719, gray colour make Classic Bajaj which was parked outside his jhuggi which was seized vide memo Ex. PW3/I, there were some blood stains on the front side of scooter as well as on dicky of the scooter. Accused got recovered the knife which was used as weapon of offence from the roof of his jhuggi, the knife was blood stained, sketch of knife was prepared and it was seized vide memo Ex. PW3/H, wearing pant of accused i.e, blue colour jeans, wearing jacket of accused which was blood stained and wearing shoes of dark brown colour make Panasonic of accused were also sealed and seized by PW18. PW18 Inspector Kishore Kumar further deposed that on 11.11.09, he moved an application Ex. PW18/D to CMO, Safdarjung Hospital for conducting postmortem on the dead body of deceased, PW18 Inspector Kishore Kumar conducted inquest proceedings Ex. PW18/E, the dead body was identified by complainant vide his statement Ex.PW3/N. After conducting postmortem, the dead body was handed over to complainant.
17. PW18 Inspector Kishore Kumar further deposed that on 11.11.09, he sent sealed pulinda containing the knife to Autopsy Surgeon for subsequent opinion vide application Ex.PW18/G, PW18 Inspector Kishore Kumar received subsequent opinion from the doctor FIR No. 359/09 12/31 St. Vs. Amit Kumar Ex. PW14/B. PW18 Inspector Kishore Kumar further deposed that on 19.11.09, he sent scooter no. DL3SK 1719 make Bajaj Chetak to FSL, Rohini for inspection and examination vide application Ex. PW18/H. PW18 Inspector Kishore Kumar correctly identified all the parcels and case properties in the Court viz. knife, jeans pant of accused, jacket of accused, pair of shoes of accused, scooter,etc.
18. In the cross examination, PW18 Inspector Kishore Kumar deposed that on 10.11.09 when he reached at the spot, he found some public persons apart from complainant but he does not know their names. PW18 Inspector Kishore Kumar again deposed in cross examination that there were many public persons at the time of recoveries of scooter and knife at the instance of accused but no public person except complainant was made witness in the investigation at the time of recovery of scooter and knife.
19. PW19 Ms. Seema Nain, Sr. Scientific Officer - Biology, FSL, Rohini, deposed that on 23.11.09, 11 sealed parcels were received in the office of Director FSL, vide letter no. 2005/SHO/Vasant Vihar dt. 10.11.09 in connection with the present case, same were marked to PW19 for biological and seriological examination. PW19 Ms. Seema Nain, Sr. Scientific Officer, further deposed that on examination, all the parcels were tallied with the sample seals provided in the forwarding authority letter and on biological examination, blood was detected on Ex. 1, 2a, 2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11. It has also come in the FIR No. 359/09 13/31 St. Vs. Amit Kumar deposition of PW19 Ms. Seema Nain that on seriological examination, blood detected on Ex. 1, 2a, 2b, 2c, 2d, 3, 4, 5, 6, 7, 8, 10 and 11, is found to be of human in origin and blood group on Ex. 1, 2a, 2b, 2c and 7 is of "O" group. PW19 Ms. Seema Nain, Sr. Scientific Officer, further deposed that blood group on Ex. 3, 4, 5, 6, 8, 9, 10 and 11 could not be ascertained due to no reaction on these exhibits. PW19 Ms. Seema Nain, Sr. Scientific Officer, proved her biological report as Ex. PW19/A and seriological report as Ex. PW19/B. PW19 Ms. Seema Nain, Sr. Scientific Officer further deposed that she can identify the signature of Mr. Naresh, Sr. Scientific Assistant, Biology, FSL, Rohini, as she had seen him writing and signing during the course of her duty hours. PW19 Ms. Seema Nain, Sr. Scientific Officer, further deposed that Mr. Naresh Kumar had examined scooter no. DL3SK 1719 at FSL premises on 19.11.09 between 2 pm to 2.45 pm and lifted blood stains from the left side dicky of the scooter and from front side of seat cover (sitting place of driver) and proved the report as Ex. PW19/C.
20. Accused examined one defence witness i.e, DW1 Smt. Shakuntala Devi, who is the maternal grand mother of accused deposed that she is working in Jawahar Lal Nehru University, she reaches her office at about 8.30 am, she remains in the office till 3 pm. DW1 Smt. Shakuntala Devi, further deposed that on 10.11.09, she had gone to her aforesaid office at JNU, on 10.11.09 at about 8.30 pm, she came to know that accused Amit was involved in a murder case. DW1 Smt. FIR No. 359/09 14/31 St. Vs. Amit Kumar Shakuntala Devi further deposed that on 10.11.09, she had gone to her office at JNU and on that day from 8.30 am to 12 noon, Amit was with her in the office, she had taken him to drop her to her office as she was unwell on that day and Amit could assist her in her office work. DW1 Smt. Shakuntala Devi further deposed that she got procured two tablets from Amit on 10.11.09 from Health Centre within JNU campus and resultantly her health improved and Amit left at 12 noon. DW1 Smt. Shakuntala Devi deposed that she was not aware where Amit went when he left her office. DW1 Smt. Shakuntala Devi further deposed that when she came to know about the implication of Amit in this case, she went to Police Station at 89 pm to tell the real truth but she was not allowed to enter the Police Station, DW1 Smt. Shakuntala Devi asked the police officials in Police Station to record her statement but police officials chased her out of the Police Station. In cross examination, DW1 Smt. Shakuntala Devi deposed that she did not give any complaint to any senior police official when she was not allowed to enter the Police Station on 10.11.09 as she is an illiterate person and she did not meet any police official in this regard. In response to Court's question as to whether Amit was with her continuously from 8 to 12 noon on 10.11.09, DW1 Smt. Shakuntala Devi first replied that on 10.11.09 he was with her from 8 am to 12 noon throughout. In the next line, she deposed that Amit went to take medicines for her at 11 am and he returned with medicines within 10 FIR No. 359/09 15/31 St. Vs. Amit Kumar minutes.
21. Testimony of DW1 Smt. Shakuntla Devi cannot be relied upon as DW 1 is a close relative (maternal grand mother) of accused and hence, she is an interested witness. If, DW1 Smt. Shakuntla Devi was not allowed to enter the Police Station Vasant Vihar on 10.11.09, to present her version, nothing prevented her from approaching senior police officials or the Court to bring real facts on record. However, no such steps were taken by DW1 Smt. Shakuntla Devi.
22. It is not in dispute that PW3 Barjeet is the real brother of deceased. PW3 Barjeet, by any stretch of imagination, can not be expected to implicate the wrong person for assault on his brother knowing fully well that by doing so, he will, infact, be protecting the real culprits. PW3 Barjeet deposed in the Court what he saw at the spot at relevant time. Some minor contradictions in the depositions of PW3 Barjeet will not weaken the case of prosecution.
23. PW3 Barjeet has clearly deposed that accused Amit first hit the deceased with scooter as a result of which deceased fell down and thereafter, accused Amit stabbed the deceased all over by butcher's knife. Accused has not explained as to why PW3 Barjeet will falsely implicate the accused if accused was not involved in the crime.
24. Mr. S.I. Alam, learned counsel for accused argued that infact PW3 Barjeet has not witnessed the incident and he informed the police that accused is the person who has murdered his brother on FIR No. 359/09 16/31 St. Vs. Amit Kumar being misled and pressurized by police. First of all, this argument is not tenable as a person cannot be expected of being pressurized by police to implicate a wrong person for the murder of his brother and thereby, letting off the real culprit. Secondly, PW3 Barjeet deposed that he made call to police on 100 number. The incident took place at 10.30 am. The information about the incident was received in Police Station Vasant Vihar through DD No.2/A at 11.25 am. In other words, PW3 Barjeet informed the police about the incident immediately after the incident. The fact that police was informed on 100 number about the incident immediately by PW3 Barjeet goes to prove that PW3 Barjeet infact saw the accused assaulting the deceased with scooter and meat cutting knife. Therefore, the contention of learned counsel for accused that PW3 Barjeet has not seen the incident and is not the eye witness of case, has to be rejected.
25. Mr. S.I. Alam, learned counsel for accused referred to the cross examination of PW3 Barjeet wherein PW3 Barjeet deposed that he does not know the number of scooter which was used in the crime. Learned counsel for accused argued that inability of PW3 Barjeet to recollect the registration number of the scooter which was allegedly used in the crime shows that the said scooter was not used by accused in the crime. This argument has on legs to stand on as normally people do not remember the registration number of vehicles of their neighbourers or other persons. In the cross examination, a suggestion FIR No. 359/09 17/31 St. Vs. Amit Kumar was put to PW3 Barjeet that if the said incident had happened then PW3 and deceased would have been able to control the assailants. PW3 Barjeet clarified this issue by deposing that he was on the tree top when the accused hit his brother with scooter and had already stabbed him by the time he got down the tree. This is a sufficient explanation as at the time of assault, deceased was alone on the ground while PW3 Barjeet was on the tree top. Learned counsel for accused then referred to the cross examination of PW3 Barjeet wherein PW3 Barjeet deposed that police had taken his signature on documents prepared by them which were not read over to him before asking him to sign. One should not forget that in examination in chief, PW3 Barjeet clearly deposed that he signed all the relevant documents viz. seizure memo of blood stained earth control, seizure memo of blood stained soil, seizure memo of sleeper of deceased, arrest memo of accused, seizure memo of knife, seizure memo of scooter and seizure memo of shoes, jacket and jeans of accused. PW3 Barjeet was examined in chief on 18.05.11 and on that day he was not cross examined by accused. PW3 Barjeet was ultimately cross examined on 01.06.12 i.e, more than one year, and therefore, certain discrepancies occurring in cross examination of PW3 Barjeet can be safely ignored.
26. In 2013 (IV) AD (S.C.) 416 - Lal Bahadur and Ors. Vs. State (NCT of Delhi), Hon'ble Supreme Court while dealing with the issue of minor contradictions and inconsistencies held in para 19 as under : FIR No. 359/09 18/31
St. Vs. Amit Kumar " So far as the contradictions and inconsistencies in the evidence of the prosecution witnesses, as pointed out by the counsel for the Appellants, are concerned, we have gone through the entire evidence and found that the evidence of the witnesses cannot be brushed aside merely because of some minor contradictions, particularly for the reason that the evidence and testimonies of the witnesses are trustworthy. Not only that, the witnesses have consistently deposed with regard to the offence committed by the Appellants and their evidence remain unshaken during their cross examination. Mere marginal variation and contradiction in the statements of the witnesses cannot be a ground to discard the testimony of the eye witness who is none else but the widow of the one deceased. Further, relationship cannot be a factor to affect credibility of a witness."
27. Apart from the deposition of PW3 Barjeet, who is the eye witness of the incident, there are other circumstances mainly emerging from the scientific investigation in this regard which connect the accused with the crime. The blood gauze of deceased Sujit was lifted vide memo Ex. PW5/A. As per the Biological and Seriological opinion Ex. PW19/A, on examination of blood stained gauze of deceased, blood group found was of "O" group. It has also been proved during trial that accused at the time of his arrest was wearing jacket FIR No. 359/09 19/31 St. Vs. Amit Kumar which was seized by police and sent to FSL for biological and seriological examination. In seriological report Ex. PW19/B, it was found that blood on jacket of accused was of "O" group. In other words, the blood group of the blood found on the jacket of accused matched with the blood group of deceased. Accused has not been able to explain as to how blood of "O" group came on his jacket. Accused merely in his statement recorded u/s. 313 Cr.PC stated that clothes i.e, jacket, pant, etc. were neither worn by him nor were recovered from him by the police. However, mere denial on the part of accused will not advance his case when recoveries of these clothes of accused and their seizure by police was witnessed by PW3 Barjeet.
28. Mr. S.I. Alam, learned counsel for accused argued that prosecution has not been able to prove that scooter no. DL3SK 1719 which is allegedly used in the crime is owned by accused. No doubt prosecution has not been able to show any document or adduced any other evidence to prove that the abovesaid scooter was owned by accused at the time of crime. Failure of prosecution to prove that accused was the owner of scooter no. DL3SK 1719 is not fatal to the case of prosecution. The said scooter has been recovered from the jhuggi of accused in pursuance of his disclosure statement and the recovery of scooter no. DL3SK 1719 at the instance of accused was witnessed by PW3 Barjeet. Noone else has come forward to claim the ownership of said scooter. Therefore, even if it is not proved that the FIR No. 359/09 20/31 St. Vs. Amit Kumar said scooter was owned by accused, prosecution has been successful in proving that the scooter no. DL3SK 1719 was in possession of accused at the time of commission of crime and was infact was got recovered by accused from his jhuggi. Not only that, blood stains lifted from the dicky of aforesaid scooter and from rubber mat of the said scooter and these blood stains were lifted and sent to FSL for biological and seriological examination and on examination, these blood stains were found to be of human origin. Accused has not been able to explain as to how blood of human origin was found on the mat and dicky of the scooter which was found in his possession and was recovered pursuant to his disclosure statement.
29. The weapon of offence i.e, knife, has already been recovered at the instance of accused from the roof of his jhuggi and same was witnessed by PW3 Barjeet. The said knife was sent to concerned Doctor by the Investigating Officer for subsequent opinion and the Doctor opined that injury no. 1, 2, 3 and 5 were possible by the submitted weapon i.e, knife. Recoveries of scooter and knife pursuant to disclosure statement of accused are covered by section 27 of Indian Evidence Act and are accordingly admissible in evidence.
30. One of the submission of Mr. S.I. Khan, learned counsel for accused was that Investigating Officer and other police officials have deposed that public persons were present when he reached the spot and at the time of recovery of scooter and knife, but those public persons FIR No. 359/09 21/31 St. Vs. Amit Kumar were not made part of investigation. The most important public witness i.e, brother of deceased, who witnessed the incident, was made witness not only to the arrest of accused but also on the recovery of knife and scooter, at the instance of accused. Therefore, there was on point in including other public person in the investigation who have not seen the incident and who would not have deposed much about the case.
31. Prosecution has also been able to prove that accused had motive to kill Sujit. Accused in his statement u/s. 313 Cr.PC admitted that panchayat was convened in the locality wherein divorce was effected between deceased and Jyoti and thereafter, Jyoti got married with accused. These facts were also deposed by DW 1 Smt. Shakuntala Devi in her cross examination. It has also been proved that accused and deceased were living in same area i.e, Moti Lal Camp, DDA Flats, Munirka, New Delhi. Accused was having real apprehension that deceased can take away his wife Jyoti from him and that was the motive for accused Amit Kumar to kill the deceased.
32. It is clear from the above discussion that prosecution on the basis of scientific investigation as well as testimonies of PW3 Barjeet and other witnesses, has successfully proved beyond any doubt that accused Amit Kumar committed the murder of Sujit. Prosecution has proved on record that accused Amit Kumar struck against deceased Sujit with scooter and thereafter, stabbed him repeatedly with meat cutting knife all over. PW14 Dr. Abhishek Yadav has opined in the MLC that injury FIR No. 359/09 22/31 St. Vs. Amit Kumar no. 1, 2, 3 & 5 were produced by sharp edged weapon and injury no. 1 was sufficient to cause death in ordinarily course of nature. Therefore, this case is clearly covered by clause thirdly of section 300 IPC. The charge u/s. 302 IPC framed against accused Amit Kumar has been proved beyond reasonable doubt. Accordingly, accused Amit Kumar is convicted u/s. 302 IPC.
Let accused Amit Kumar be heard on the point of sentence.
Announced in open Court (Sandeep Yadav) Additional Sessions Judge5 (South) Saket Courts, New Delhi/10.02.2015 FIR No. 359/09 23/31 St. Vs. Amit Kumar IN THE COURT OF SH. SANDEEP YADAV, ADDITIONAL SESSIONS JUDGE5, SOUTH DISTRICT, SAKET COURTS, NEW DELHI SC No. 107/14 ID No. 02403R0030922010 FIR No. 359/09 PS. Vasant Vihar U/s. 302 IPC State Versus Amit Kumar S/o. Sh. Surender Kumar R/o. S99/34, Moti Lal Nehru Camp Munirka New Delhi ORDER ON SENTENCE 12.02.14 Pr : Substitute Additional Public Prosecutor for the State Mr. S.I. Alam, Advocate for convict Amit Kumar Convict Amit Kumar produced from j/c.
1. I have heard Mr. S.I. Alam, learned counsel for convict as well as learned Substitute Additional Public Prosecutor for the State, on the point of sentence. Amit Kumar has been convicted of the offence FIR No. 359/09 24/31 St. Vs. Amit Kumar punishable u/s. 302 IPC vide judgment dt. 10.02.15. Learned Counsel for convict submitted that convict is the sole bread earner of his family and his family consists of his mother, his wife and his five years old son. It is further submitted that convict has lost his father and thus his entire family is dependent on him. It is further submitted that convict has clean antecedents and he has never been involved in any previous case at any point of time. Learned counsel for convict submitted that keeping in view all these mitigating circumstances, a lenient view may be taken against the convict. Leaned Substitute Additional Public Prosecutor for the State on the other hand submitted that sentence which the convict deserves as per facts and circumstances of the case may be awarded to the convict.
2. Section 302 IPC provides that whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
3. The Apex Court has held in various judgments that for offence of murder, life imprisonment is normal rule and death sentence is an exception.
4. Rule 1 Chapter 19 Volume III of Delhi High Court Rules gives some guidelines in in determining the sentence to the offenders. Same are being reproduced herein as under :
" The award of suitable sentence depends on a variety of considerations - The determination of appropriate punishment after FIR No. 359/09 25/31 St. Vs. Amit Kumar the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstance, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
5. Hon'ble Supreme Court in Bachan Singh Vs. State of Punjab AIR 1980 SC 898 - laid down the aggravating as well as mitigating circumstances, to be weighed by the Court, while determining as to whether case under consideration requires extreme penalty of death. Same are being reproduced herein as under :
Aggravating Circumspect
(a) if the murder has been committed after previous planning and involves extreme brutality. or
(b) if the murder involves exceptional depravity, or FIR No. 359/09 26/31 St. Vs. Amit Kumar
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force of any public servant and was committed:
(i) while such member or public servant was on duty, or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member of public servant, as the case may be, or had ceased to be such member or public servant, or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to a Magistrate or a police officer after demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
Mitigating Circumstances :
(i) that the offence was committed under the influence of extreme mental or emotional disturbance.
(ii) the age of the accused. If the accused is young or old, he shall not be sentenced to death,
(iii) the probability that the accused would not commit acts of criminal acts of violence as would constitute a continuing threat to society.
(iv) the probability that the accused can be reformed and FIR No. 359/09 27/31 St. Vs. Amit Kumar rehabilitated, the State shall by evidence prove that the accused does not satisfy the conditions (3) & (4) above.
(v) that in the facts and circumstances of the case, the accused believed that he was morally justifying in committing the offence.
(vi) that the accused acted under the duress or domination of another person.
(vii) that the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
In this case it was further held in para 207 as under :
" There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. 'We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society'. Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be a bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and FIR No. 359/09 28/31 St. Vs. Amit Kumar compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354 (3), viz, that the person convicted of murder, life imprisonment, is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rear cases when the alternative option is unquestionably foreclosed."
6. As mentioned above, convict has been found guilty of committing murder of Sujeet by hitting him with scooter and by repeatedly stabbing him with knife on neck. The injured died in the hospital shortly after receiving injuries at the hand of convict. Motive for murder was the apprehension in the mind of convict that deceased Sujit could take away or snatch his wife Jyoti from him.
7. Learned Substitute Additional Public Prosecutor for the State, has not been able to indicate any previous involvement of convict. It is, therefore, obvious that case in hand is not rarest of rare which entails death penalty. Infact, mitigating circumstances outweighed aggravating circumstances.
FIR No. 359/09 29/31 St. Vs. Amit Kumar
8. Keeping in view all the facts and circumstances of the case, convict Amit Kumar is sentenced to simple imprisonment for life and fine of Rs. 5,000/ for the offence punishable u/s. 302 IPC. In default of payment of fine, convict shall undergo simple imprisonment for one year.
In Ankush Shivaji Gaikwad vs. State of Maharashtra in AIR 2013 SC 2014 decided by Hon'ble Supreme Court, it was held that, "
While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."
9. Dependents or family members of deceased Sujit including his son, have suffered not only emotionally but also financially and need to be compensated.
10. Out of fine of Rs. 5,000/ imposed on convict, a sum of Rs.
3,000/ will be paid to the dependents of deceased as compensation. The amount of fine imposed on accused is the upper limit of compensation that can be granted to dependents of deceased u/s. 357 Cr.PC. Fine of Rs. 5,000/ has been imposed on convict keeping in view his socioeconomy condition. However, the Court is of the considered opinion that compensation awarded u/s. 357 Cr.PC is not adequate for rehabilitation of dependents of deceased Sujit. FIR No. 359/09 30/31 St. Vs. Amit Kumar Accordingly, a recommendation is made to District Legal Service Authority, Delhi, (South), u/s. 357A Cr.PC, for compensation to the dependents of deceased Sujit. Dependents of deceased Sujit be informed about this order through IO Copy of this order as well as judgment dt. 10.02.15, be supplied to convict immediately, free of cost. Copy of this order be sent to concerned Superintendent, Jail, Tihar.
Copy of this order be sent to District Legal Service Authority, Delhi (South).
File be consigned to Record Room.
Announced in open Court (Sandeep Yadav)
Additional Sessions Judge5 (South)
Saket Courts, New Delhi/12.02.15
FIR No. 359/09 31/31
St. Vs. Amit Kumar