Delhi District Court
P.S. : Gokal Puri vs . on 9 March, 2009
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IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Machhbir S/o Sh. Chandan Singh
R/o Gali No. 10 Nala Road, Phase-10,
Shiv Vihar, Karawal Nagar, Delhi.
2. Vinod S/o Sh. Braham Dutt Sharma
R/o A-220 Gali No.6, Ambedkar Road,
Johripur, Delhi.
FIR No. 173/2006
P.S. : Gokal Puri
U/s : 302/34 IPC
Sessions Case No. : 44/08
Date of Institution of case : 13.07.2006
Date on which reserved for Judgment: 26.2.2009
Date of delivery of Judgment : 09.03. 2009.
JUDGMENT:
The present case was registered on the complaint made by Smt. Manju Rani against the accused persons alleging that she was married to Ashok Kumar about four years ago and has a child. Her husband Ashok Kumar was doing embroidery work in Shiv Vihar and he also used to go for Jagran with his associates. Her husband 2 left his work few days ago and used to remain with his associates. About four days prior to the death of her husband, one Machhbir, who resides in Gali No.10, Phase- 10, Shiv Vihar came to her house, she told him not to come to her house because he was spoiling the habits of her husband, on which, Machhbir stated that he had come last time and he will not come thereafter and he left her house showing anger. On 7.3.2006 at about 5.00 P.M. Gollu, a friend of her husband came and had a cup of tea and took her husband with him. At about 10.00 P.M. her husband came in the house for toilet and left saying that his friends were waiting outside and he was going with them and will return after some time. Thereafter, she and her mother-in- law Smt. Munni came outside and saw that her husband was going with Machhbir, Gollu and Vinod. Thereafter her husband did not return home and she thought that he might have gone for Jagran. On 8.3.206 at about 4.00 P.M., while she and her other family members were searching her husband, they came to know that a dead body of a person was lying in a plot Gali No.1,Phase-10 Shiv Vihar. She 3 along with her father-in-law and brother-in-law went there and identified the dead body of her husband Ashok Kumar. On the neck of her dead husband, ligature marks were there and tongue had slightly come out of his mouth. She believed that Machhbir, Gollu and Vinod had caused the death of her husband as they were not traceable at their houses when she went there in search of her husband.
After completion of the investigation, charge sheet for the offence punishable U/s 302/34 IPC was filed against both the accused Machhbir and Vinod. It was mentioned in the charge sheet that charge sheet against accused Gollu would be filed as and when proceedings U/s 82/83 Cr.P.C. were completed.
Ld. Magistrate after supplying the copies to the accused persons committed the case to the Sessions Court.
My Ld. Predecessor vide order dated 13.07.20006 framed a charge for the offences punishable
U/s 302 IPC read with section 34 IPC against both the accused. Both the accused pleaded not guilty to the charge and claimed trial.
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In order to prove its case, the prosecution has examined as many as 15 witnesses. The statements of both the accused were recorded U/s 313 Cr.P.C. wherein both of them have denied the allegations against them and alleged that they were falsely implicated in this case at the instance of complainant Smt. Manju and her mother-in-law Munni Devi. They stated that the witnesses have deposed falsely against them being interested witnesses.
In defence, the accused Vinod examined one witness Ms. Gudia Sharma and accused Machhbir examined one witness Smt. Mukesh.
PW1 is the complainant Smt. Manju Rani. She deposed that Machhbir used to go to the factory of her husband. At about four days prior to death of her husband, Machhbir had come to her house and wanted to take away her husband. She told Machhbir not to visit her house as he was spoiling the habits of her husband. Machhbir responded by saying that he had visited her house last time and he will not come to her house in future and saying so he left her house, showing anger. On 7.3.2006 at about 5.00 P.M., her 5 husband along with his friend Gollu came to her house and both of them had a cup of tea and thereafter, Gollu took her husband with him. At about 10.00 P.M., her husband came to her house and after toilet started going back. On her questioning as to where he was going, he replied that some of his friends were standing outside the house and he was going with them and will return soon. Thereafter, she and her mother-on-law Munni Devi came out of the house and saw that her husband along with his associates Machhbir, Gollu and Vinod were going towards road side. Thereafter, her husband never returned. In the night, they thought that her husband might have gone for the Jagran. When in the morning, her husband did not return, she made search for her husband. She visited the houses of Machhbir, Gollu and Vinod but they were not found at their houses. At about 4.00 P.M. when she was present at her house, one person informed her that a dead body was lying in a vacant plot measuring 1000 yards situated at Gali No.1, Phase-10, Shiv Vihar. She along with her father-in-law, mother-in-law and brother-in-law went there. She identified the dead body 6 lying there to be of her husband Ashok Kumar. She observed that blood was oozing from his mouth and his tongue was slightly out of the mouth. Her statement was recorded by the police which is Ex. PW1/A which bears her signatures at point A. Police took the dead body of her husband from the spot for post mortum. She identified the accused Machhbir and Vinod.
PW2 Smt. Munni Devi is the mother of deceased Ashok Kumar. She deposed that Ashok Kumar was married to Manju Rani about four years ago and out of this wedlock, he was having a son. Ashok Kumar used to work at Shiv Vihar in an Embroidery Workshop and some times, he used to go for singing in Jagran along with his associates. On 7.3.2006 at about 5.00 P.M., Ashok Kumar was present at his house . A friend of his son Ashok Kumar namely Gollu came at her house. They took tea at her house and thereafter Gollu took her son with him. Thereafter, her son Ashok Kumar came to her house at about 10.00 P.M. Ashok Kumar told her that his friends were standing outside the house. Thereafter, she and her daughter-in-law 7 Manju saw that Machhbir, Gollu and Vinod were present outside the house and they took Ashok Kumar with them towards street. They thought that the persons were acquainted with her son Ashok Kumar and thereafter, she closed the gate of her house. In the morning, when her son Ashok Kumar did not return, they searched Ashok Kumar at his work place and at the houses of Gollu, Machhbir and Vinod but her son was not found at any place. At about 3.00/4.00 P.M., the persons of the locality were talking that a dead body was lying in a plot measuring 1000 square yard at Gali No.1, Phase-10, Shiv Vihar. They went to see the dead body. She saw that the dead body was of her son Ashok Kumar. The accused persons Machhbir, Gollu and Vinod had taken her son Ashok Kumar with them. She identified the accused Machhbir and Vinod Kumar. She stated that she could identify accused Gollu, if shown to her.
PW3 Sanjay is the elder brother of deceased Ashok Kumar. He deposed that his brother Ashok Kuamr used to do Embroidery job at Shiv Vihar. He returned home at about 10.30 P.M and inquired about his brother Ashok 8 Kumar. His sister-in-law ( Bhabhi) told her that he had gone along with three persons, who had come to call him. In the morning, he left for his job. His sister-in-law gave him a telephone call around 4.00 P.M. and he came back to his home. He went to Shanti Nagar, near Shiv Vihar, Delhi and she found the dead body of Ashok lying there. Police was already present there.
PW4 Sunder Lal is the father of deceased Ashok Kumar. He deposed that his son Ashok, wife of Ashok namely Manju, his wife and his younger son Sanjay were residing together at Shiv Vihar. Ashok was having a son. His son Ashok used to go in Jagran for singing. On 7.3.2006, he had gone in the house of his daughter Rekha at Badarpur. On 8.3.2006,when he returned home, Ashok was not present there. On 8.3.2006 at about 2.00/3.00 P.M., he heard noise of commotion that a murder has taken place. He went to a plot situated about half kilometer away from his house. He saw that police officers were present there , besides several public persons. He saw that dead body of his son Ashok was lying there on the ground. Dead body was 9 taken to mortuary. Police recorded his statement Ex. PW4/A. which bears his signatures at point A. After postmortem, they took the dead body vide memo Ex. PW4/B. Police obtained his signatures on some papers. He identified the accused Machhbir and Vinod.
PW5 is S.I. Itender Swarup. He deposed that on 8.3.2006 he was posted at North East District, Crime Team. On that day, at about 4.30 P.M. on receipt of telephonic message from control room, he reached Gali no.1, Phase-10, Shiv Vihar. He inspected the spot. S.I. Arjun Singh was also present at the spot. No chance prints etc. were available at the spot. Spot was got photographed through constable Anil Kumar.
PW6 is Constable Anil Kumar. He deposed that on 8.3.2006 at about 5.00 P.M. he had taken 11 snaps of the dead body from the different angles. The photographs were developed in a private lab. Developed photographs are Ex. PW6/A1 to A11 and negatives are Ex. PW6/B1 to B11.
PW7 Dr. Arvind Kumar Senior Demonstrator, is from Department of Forensic Medicine, UCMS & GTB 10 Hospital, Shahdara, Delhi. He deposed that on 10.3.2006 he was posted at GTB Hospital. He conducted the postmortem on the body of deceased Ashok Kumar aged 30 yrs male. Postmortem staining was present over the back. Natural orifice was normal. There was greenish discoloration was present over the abdomen. On external examination, he found six ante-mortem injuries. The postmortem report is Ex. PW7/A, which bears his signatures at point A. He opined time since death was two or three days and caused of death was asphyxia due to ante-mortem ligature strangulation. He also preserved clothes and blood on gauze under the seal of AK.
On 19.4.2006 he received an application along with a parcel from SHO P.S. Gokal Puri for subsequent opinion. After examination, he gave his subsequent opinion vide his report as Ex. PW7/B. PW8 ASI Satya Dev was Duty Officer. He deposed that on 8.3.2008 while he was working as duty officer at Police Station Gokalpuri from 4.00 P.M. to 12.00 P.M., at about 7.25 P.M., on receipt of rukka from constbale 11 Jitender sent by Inspector B.S. Kushwaha, he recorded FIR No. 173/2006, copy of the same is Ex. PW8/A. After registration of the case, he handed over the copy of FIR and original rukka to constable Jitender after making his endorsement as Ex.PW8/B. PW9 is constable Kailash. He deposed that on 8.3.2006 while he was posted at Police Station Gokal Puri, at about 8.40 P.M. on receipt of copy of FIR No. 173/06, he delivered the copy of FIR to concerned Metropolitan Magistrate and Senior Officers of the police i.e. DCP and Joint CP as per instructions of Duty Officer.
PW10 is S.I. Mukesh Kumar. He deposed that on 17.3.2006 while he was posted as Draftsman in North East Distt, he was summoned at Police Station Gokalpuri and he accompanied Inspector B.S. Kushwaha reached at Plot Netra Pal in Street No.1, Shiv Vihar, Phase-3, Gokalpuri,Delhi. He inspected the site at the instance of Inspector Kushwaha, took measurement and prepared rough notes. On the basis of rough notes,he prepared scaled site plan, which is Ex. PW10/A. Thereafter rough notes were 12 destroyed by him.
PW11 is constable Sunil Kumar. He deposed that on 9.3.2006 he joined the investigation of this case. He alongwith Inspector B.S. Kushwaha, SI Arjun Singh and Head Constable Ashok had gone to a place on Nala Road, Indira Puri Extention, Delhi. Accused persons were sitting in a grove of trees. Accused were overpowered at the pointing out of informer. The accused were arrested vide their arrest memos Ex. PW11/A and Ex. PW11/B. The personal search of the accused persons were conducted vide memos Ex. PW11/C and Ex. PW11/D. Nothing was recovered from the possession of the accused persons. On 10.3.2006 he had gone to mortuary, GTB Hospital,Delhi. SI Arjun Singh and Inspector B.S. Kushwaha were also present there. Parents of the deceased Ashok were also present there. They identified the dead body of Ashok. Thereafter, the dead body was released to them. He has identified both the accused.
PW12 is constable Kuldeep Singh. He deposed that on 8.3.2006 he was posted at Police Post Karawal 13 Nagar of Police Station Gokalpuri. On that day, at about 3.30 P.M., on receipt of a call, he along with SI Arjun Singh, Constable Sunil had gone to Street no.1, Phase-10, Shiv Vihar and a dead body was lying in a vacant plot. Photographer and Crime Team were called at the spot. A ligature mark was visible around the neck of dead body. Sunder Lal, Manju and Sanjay also reached at the spot. They identified the dead body of Ashok Kumar. Dead body was photographed. Thereafter, dead body of Ashok was sent to mortuary GTB Hospital. Statement of Manju was recorded and constable Jitender was deputed to get the case registered. He removed the dead body. He remained with the dead body of Ashok at GTB Hospital, Mortuary. On 10.3.2006 SI Arjun Singh, Constable Sunil and Inspector B.S.Kushwaha, Sunder Lal, Sanjay and other relatives of the deceased had come in mortuary. After postmortem dead body was handed over to Sunder Lal vide receipt Ex. PW4/B. Doctor had preserved some articles during postmortem. He was given two sealed parcels sealed with the seal of hospital, which he handed over to Inspector B.S. 14 Kushwaha vide memo Ex. PW12/A. I.O. had lifted blood sample etc. from the spot.
PW13 is Inspector B.S. Khushwah. He deposed that on 8.3.2006 he was posted at Police Station Gokal Puri. On that day, at about 3.30 P.M. D.D No. 12, copy of which is Ex. PW13/A was recorded at Police Station which was assigned to S.I. Arjun Singh for action in the matter. He received information on his wireless set regarding registration of DD no. 12. He along with constable Jitender reached at the spot Gali No.1,Phase-10, Shiv Vihar, Karawal Nagar where SI Arjun Singh, ASI Devi Charan, Ct. Kuldeep, Constable Om Prakash and Head Constable Ashok Kumar were found present. He saw that a dead body was lying in a vacant plot. He found ligature mark around the neck of the dead body. Blood oozed from the mouth & insects were there on the dead body. He summoned crime team officials. Sunder lal, Manju and Sanjay came there at the spot and they identified the dead body of Ashok Kumar Photographs of the dead body was taken. He recorded the statement of Smt. Manju Rani as Ex. PW1/A. he prepared 15 rukka Ex. PW13/B and got the case registered through constable Jitender. He lifted blood sample and earth control sample from the spot and sealed the same into two separate parcels with the seal of BSK and took into possession vide memo Ex. PW4/C. He also took into possession a plastic rope from the spot vide memo Ex. PW4/D. He prepared site plan Ex.PW13/C. He lifted another blood sample from the wall and took into possession vide memo Ex. PW13/D. The dead body was taken to mortuary GTB Hospital through constable Kuldeep. On that day doctors were on strike, hence postmortem on the dead body could not be conducted. He deposited sample parcels in the malkhana.
On 9.3.2006 the accused Vinod and Machhbir were arrested at the instance of the secret informer near Indrapuri Extension and they were arrested vide memos Ex. PW11/A and Ex. PW11/B. The personal search of the accused persons were conducted vide memo Ex. PW11/C and Ex. PW11/D. He made efforts to search accused Gollu at his house but he was not present there. On 10.3.2006 he made a request for postmortem vide Ex. PW13/E, filled up the 16 form 25.35 which is Ex. PW13/F, recorded statements of Sunder lal and Sanjay Ex. PW4/A and Ex. PW13/G regarding identification of dead body. The dead body was handed over to Sunder Lal vide receipt Ex. PW4/B. Doctor had preserved exhibits, which was handed over to him by constable Kuldeep Singh and he seized the same vide memo Ex. PW12/A and deposited the parcels in the malkhana. He sent exhibits to CFSL Kolkatta. He got prepared scaled site plan of the spot through Mukesh Jain Draftsman, which is Ex. PW10/A. He recorded statements of witnesses and after completion of investigation filed the challan. Despite his best efforts, accused Gollu could not be arrested. Proceedings U/s 82/83 were going on against the accused Gollu.
PW14 Head Constable Vinod Singh is Malkhana Morhrer. He deposed that on 8.3.2006 Inspector B.S. Khushwah deposited with him five parcels duly sealed with the seal of BSK. On 10.3.2006 Inspector B.S. Khushwah also deposited one parcel duly sealed with the seal of AK, one sealed envelop and sample seal. On 19.4.2006 one parcel 17 bearing seal of BSK stated to be containing rope by Inspector Khushwah and same was again deposited by him on 19.5.2006, which was duly sealed with the seal of GTB Hospital. On 25.4.2006 five parcels and one sealed envelop were handed over to constable Balbir Singh for depositing the same at CFSL, Kolkatta vide RC No. 336/21. He had brought the register No.19 in which he had made entries in this regard at serial No. 228, copy of which is Ex. PW14/A, copy of entry at serial No. 234 is Ex. PW14/B. So long the case property remained in his possession, it remained intact.
PW15 is SI Arjun Singh. He deposed on the similar lines of Insp. B.S. Khushwah. He deposed that on 8.3.2006 he was posted at Police Post Karawal Nagar of Police Station Gokal Puri. On that day, on receipt of DD No. 12, copy of which is Ex. PW13/A, he along with ASI Devi Charan, HC Ashok Kumar, Constable Kuldeep and Constable Om Parkash reached at Gali No.1, Phase-10, Shiv Vihar, where a dead body of a male person was lying in North West corner of a vacant plot. Insp. B.S. Khushwah 18 along with other staff members also reached there. Crime team was summoned. Sunder Lal father, Sanjay brother and wife of deceased namely Manju Rani reached at the spot and they identified the dead body of Ashok Kumar. He recorded the statement Ex. PW1/A of Smt. Manju Rani on the dictation of Insp. B.S. Khushwah, recorded rukka and got the case registered at Police Station Gokal Puri. In his presence, I.O. Insp. B.S. Khushwah seized blood sample, earth control sample and a plastic rope from the spot, prepared site plan, arrested the accused Machhbir and Vinod, got conducted the post-mortem of the deceased and also seized blood stained clothes and blood sample which were handed over by constable Kuldeep.
DW1 Ms. Gudia Sharma has deposed that on 8.3.2006 she along with her brothers and father were present at home. At about 9.00 P.M., three police men came to her house and took away her father. When she inquired from the police officers about taking of her father, they replied that they will leave her father after some time. One mobile phone was snatched away from her by the police. Her 19 mother was not present at that time. Her father did not return home thereafter.
DW2 Smt. Mukesh is the wife of the accused Machhbir. She deposed that on 8.3.2006 around 7.00 P.M., she was present at her house. Her husband, her brother-in- law Jitender and children were also present in the house. They were taking meal. Eight/Nine police officials came to her house and took away her husband Machhbir with them. When, she questioned the police regarding taking away of her husband, then they told her that they will leave her husband after interrogating him. When, she went to the Police Station Gokal Puri, she came to know that her husband has been detained in a case of murder. No person with name of Ashok ever visited her house.
I have heard Shri S.K. Raghuvanshi Ld. Addl. P.P. for the State and Shri Rakesh Kochhar Ld. Counsel for the accused Vinod. I have also perused the file and written arguments filed by Ch. Devender Singh Ld. Counsel for the accused Machhbir. I have also perused the case law relied upon by the Ld. Counsel for the accused Vinod. 20
It was submitted by Ld. Addl. P.P. for the State that the accused persons along with one Gollu have taken the deceased on 7.3.2006 at about 10.00 P.M. from the house of the deceased. It was submitted that as the accused persons have taken the deceased along with them and this fact has been established in evidence by the statements of PW1 Smt. Manju Rani and PW2 Smt. Munni Devi, therefore, it were the accused persons, who are responsible for causing the death of Ashok Kumar.
On the other hand, it was submitted by Sh. Rakesh Kochhar Ld. Counsel for the accused Vinod Kumar that the only evidence in the present case is last seen evidence and it is not sufficient to convict the accused persons.
In this case fifteen witnesses have been examined by the prosecution. Scrutiny of the prosecution witnesses reveals that the material witnesses are PW1 Smt. Manju Rani and PW2 Smt. Munni Devi. The scrutiny of the prosecution evidence further shows that the present case rests entirely upon the circumstantial evidence and there is no direct evidence in the present case. Circumstantial evidence in the present case is the last seen evidence. Both 21 the witnesses namely PW1 Smt. Manju Rani and PW2 Smt. Munni Devi have deposed that they have seen the deceased Ashok Kumar going from their house at Gali No.10, Phase-10, Shiv Vihar, Karawal Nagar along with accused Machhbir, Vinod and Gollu. Apart from the evidence of PW1 Smt. Manju Rani and PW2 Smt. Munni Devi, there is no other evidence of last seen.
The Hon'ble Supreme Court in a case titled Padala Veera Reddy Vs. State of A.P. and Ors reported as '' AIR 1990 SC-79 '' has held as under :
'' 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.'' 22 The Hon'ble Supreme Court in a case reported as '' 1992 Crl. L. J.-1104 titled as State of U.P. Vs. Ashok Kumar Srivastava '' has held as under :
'' 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. '' The Hon'ble High Court of Delhi in a case reported as '' 2007(2) JCC-1587 '' has observed that circumstantial evidence (1) circumstances from which an inference of guilt is sought to be drawn; (2) must be cogently and firmly established; (3) these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (4) the cumulative effect 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.
The Hon'ble Supreme Court in a case reported as '' 2008(1) C.C. Cases (SC)-196 '' has held as under : 23
''' In a situation of this nature, it is difficult to hold that a judgment of conviction can be founded on the sole circumstance of the deceased's having been last seen with the appellant by the prosecution witnesses who are all interested and partisan witnesses''.
The Hon'ble High Court of Delhi in a reported as '' 2007(2) JCC-1292 '' has held as under :
'' The only evidence produced by the prosecution against the accused is that the deceased was last seen alive in the company of the accused. This circumstance alone is not enough to convict the accused for commission of murder of deceased ''.
The Hon'ble High Court of Delhi reported as '' 1997(2) C.C. Cases-101 (HC) '' has observed that Merely that the accused had left the place in the company of the deceased and returned alone would not be sufficient to hold him guilty of committing murder and this circumstance creates suspicion against the appellant, the same cannot establish the charge of murder.
In the present case, no motive has been established by the prosecution for committing the murder of the deceased by the accused persons. No previous enmity between the deceased and accused persons has been proved on 24 record. The finger prints were not lifted from the place from where the dead body was recovered, so it cannot be said that it were the accused, who have thrown away the dead body of Ashok Kumar in the vacant plot after committing his murder.
Apart from the last seen evidence, there is no other evidence against the accused persons. In view of the judgment referred above, I am of the view that in the present case last seen evidence is not sufficient to convict the accused persons.
Accordingly, both the accused are acquitted for the offence punishable U/s 302/34 IPC. They be released from the custody forthwith, if they are not wanted in any other case.
The file be consigned to record room.
Announced in open Court on 9th March' 2009.
(Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi