Delhi District Court
State vs . Prahlad Fir 477/13 (56739/2016) on 31 July, 2017
State Vs. Prahlad FIR 477/13 (56739/2016)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56739/16
FIR No. 477/13
PS Khyala
U/s 302/34 IPC
STATE
VERSUS
(1) PRAHLAD
S/O LATE SHANKAR LAL
R/O H.NO. K44, J.J.COLONY, RAGHUBIR
NAGAR, DELHI.
(2) DEVANAND @ DEVA
S/O LATE BHAGWAN DASS
R/O H.NO. K25, J.J.COLONY,
RAGHUBIR NAGAR, DELHI.
Date of Institution : 24.02.2014
Date of Reserving Judgment : 10.07.2017
Result: Convicted Page 1 of 59
State Vs. Prahlad FIR 477/13 (56739/2016)
Date of Judgment : 20.07.2017
JUDGMENT
1. The present accused persons namely Prahlad and Devanand have
been facing trial for the offence punishable U/s 302/34 IPC.
FACTS :
2. Facts leading to the Prosecution's case are as under :
2.1. On 19.11.2013, at about 07:30 AM, Dharampal S/o Sh.Chander Singh R/o H.No.392A, Village Hastsal, Uttam Nagar, New Delhi (PW4) got recorded his statement, wherein he has stated that he is working as Chowkidar and from 05:00 PM till 09:00 AM of 19.11.2013, he was present as Chowkidar at Chameli Park, Raghubir Nagar, Delhi. He has further stated that he had seen the dead body of a male aged about 20 years near wall of Chameli Park, which was broken towards the side of Ambedkar Market, who had head injury. Statement of this witness was recorded by DO/HC Amit Kumar (PW8), who after recording the DD no.14A (Ex.PW8/D), handed over the copy of the same to SI Nafe Singh (PW21).
Thereafter, SI Nafe Singh alongwith Ct.Subhash (PW17) and Result: Convicted Page 2 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Chowkidar Dharampal went to the spot. Duty officer had also informed the SHO Insp.Tanvir Ashraf (PW23) who alongwith Ct.Parveen Kumar also left for the spot.
2.2 On reaching the spot, SHO alongwith SI Nafe Singh and Ct.Subhash found one male deadbody lying in Chameli Park, where the boundary wall of the same was found broken. Crime team and photographer was called at the spot. Spot was inspected and photographed by the Crime team. Dead body was identified by PW3 Smt.Mangati Devi (who arrived during investigation) to be that of her grand son namely Cheeku. Rukka (Ex.PW23/A) was prepared, on the basis of which an FIR (Ex.PW8/A) was registered. Endorsement on rukka Ex.PW8/B was made by PW8. Concerned MM and Sr.Officers were informed vide Ex.PW8/E, F & G. Thereafter, investigation was carried out by IO/Insp.Tanvir Ashraf (PW23). During investigation, one big stone blood stained, which was lying near the head of the deadbody, one blood stained blue coloured checkdar shirt which was torn from different sides, blood which was lying near the head of deceased and lifted with the help of gauze and one earth control sample were seized from the spot, after sealing the same with the seal of TA. Site Plan Ex.PW23/B was prepared at the Result: Convicted Page 3 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) instance of Smt.Mangti Devi. Thereafter, dead body of deceased was sent to Mortuary, DDU hospital.
2.3. Statement of Smt.Mangati Devi was recorded U/s.161 Cr.P.C. wherein she stated that she used to sell old clothes. Her grand son Cheeku was also doing the same work and was residing with his parents at Kishan Garh, Rajasthan. She further stated that on 18/19.11.2013, he had come to Raghubir Nagar Mandi, Delhi for selling the old clothes. She further stated that whenever her grand Son Cheeku come to Delhi, he used to sleep on the pile of old clothes. On that night too, he had slept near Ghore Wala Mandir. She further stated that at 05:30 AM, when she was going towards the clothes Market, near Ghore Wala Mandir, she had seen that accused Prahlad and Devanand, who also used to sell the old clothes and she knew them earlier, were taking Cheeku in a rickshaw forcefully. On suspicion, she had also followed them and reached at Chameli Park. She had seen that both accused persons namely Prahlad and Devanand took Cheeku while dragging towards the Park. Both of them were also giving beatings to Cheeku. Accused Devanand was giving beatings to Cheeku with danda and accused Prahlad picked a big stone/slab and hit on the head of Cheeku, due to which blood Result: Convicted Page 4 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) came out from the head of Cheeku and he became unconscious. When she had shouted, both of them had seen her. Thereafter, she had ran away from the spot.
2.4 This witness has further stated that at about 08:00 AM and after gathering wits, when she reached again at Chameli Park, police had already reached there and deadbody of her grand son Cheeku was lying there. She had identified his dead body. She has further stated that both the accused persons namely Prahlad and Devanand had murdered her grand son Cheeku with big stone and also gave him beatings.
2.5 SHO had also recorded statement of sister of deceased namely Tara (PW6) U/s 161 Cr.P.C., wherein she stated that she is residing with her parents at Kishan Garh, Rajasthan and used to sell the old clothes. She has further stated that she and her brother Cheeku used to come and sell the old clothes at Delhi and used to reside alongwith her grand mother and was so residing since last 15 days. She has further stated that on 18.11.2013, at about 10 P.M, she was present near Ghore Wala Mandir, both accused persons namely Prahlad and Devenand (whom she knew) came there and asked her as to where is Cheeku. Accused Prahlad told that her brother Cheeku Result: Convicted Page 5 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) had stolen Rs.4,000/ belonging to him and he will not leave him today and kill him. She has further stated that she did not take them seriously and remained busy in her work. Same day, in the morning, she came to know that accused Prahlad and Devanand had murdered her brother Cheeku in a park.
2.6. Statements of Crime Team Incharge ASI Ajeet Singh (PW2) and Photographer HC Sanjeev (PW1) were also recorded. 2.7 During investigation and on information, both the accused persons were arrested on the same day at about 04:00 PM from the parking of Guru Gobind Singh hospital on the identification of Smt.Mangati Devi. Disclosure statements of both the accused persons were recorded wherein they had disclosed their involvement in the commission of murder of Cheeku. In pursuance to their disclosure statements, both the accused persons Prahlad and Devanand got recovered their blood stained Jeans Pants of blue colour, which they were wearing on the day of incident. The same were seized by the IO after sealing them with the seal of TA. Both the accused persons had also got recovered danda with which they had given beatings to Cheeku at Chameli Park. The same was also seized after sealing with Result: Convicted Page 6 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) the seal of TA.
2.8 Deadbody of Cheeku was formally identified by his father Kalu (PW7) and Uncle Kamal (PW18) in the mortuary, DDU hospital. Clothes of the deceased, blood in gauze and sample seals were also taken into possession vide seizure memo. PM report no. 1555/2013 was collected, wherein the doctor had opined the cause of death as "Due to cranio cerebral injury (head injury) caused by direct blunt impact over the skull and the injuries were sufficient to cause death in ordinary course of nature and manner of death was "homicide". Exhibits were sent to FSL through Ct.Anil Kumar (PW
12) and Ct.Lajpat (PW16). Scaled Site Plan was prepared by Insp.Mahesh Kumar (PW15). After completion of investigation, Chargesheet U/s 302/34 IPC against both the accused persons was filed before the Court.
3. Qua FSL, a Supplementary Charge Sheet U/s 173 (8) Cr.P.C. was filed citing Dr.Sarabjit Singh Sandhu (PW22), HC Nawal (PW19) and Dr.Komal Singh. DNA Finger Printing Report by Ms. Shashi Bala Pahuja (PW20) was also filed subsequently.
4. Thereafter, the case was committed to the Court of Sessions.
Result: Convicted Page 7 of 59State Vs. Prahlad FIR 477/13 (56739/2016) Charge U/s 302/34 IPC was framed against both the accused persons on 28.02.2014, to which they pleaded not guilty and claimed trial. EVIDENCE :
5. To prove its case, the prosecution, in total, has examined 23 witnesses i.e. PW1 HC Sanjeev Kumar, PW2 ASI Ajit Singh, PW3 Smt.Mangati, PW4 Sh.Dharam Pal, PW5 Smt.Soni, PW6 Smt.Tara, PW7 Kalu, PW8 HC Amit Kumar, PW9 Dr.Komal Singh, PW10 Sh.Vishal Pahuja, PW11 Ct.Sita Ram, PW12 Ct.Anil Kumar, PW13 HC Kuldeep Singh, PW14 Dr.Dhananjay Kumar, PW15 Insp.Mahesh Kumar, PW16 Ct.Lajpat, PW17 Ct.Subhash Chand, PW18 Kamal, PW19 HC Nawal Singh, PW 20 Smt.Shashi Bala Pahuja, PW21 SI Nafe Singh, PW22 Dr.Sarabjit Singh and PW23 Insp.Tanvir Ashraf.
6. PW1 HC Sanjeev Kumar, Photographer of Mobile Crime team has proved six photographs as Ex.PW1/A to Ex.PW1/F and negatives as Ex.PW1/A.1 to Ex.PW1/A.6, which he clicked from the spot on 19.11.2013.
7. PW2 ASI Ajit Singh, Incharge Mobile Crime Team has proved his report as Ex.PW2/A which he prepared on 19.11.2013 at the Result: Convicted Page 8 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) spot.
8. PW3 Smt.Mangati has deposed that she used to sell the plastic items/utensils against the old clothes. Her son Kalu alongwith his wife and his son Cheeku were residing in Kishan Garh, Rajasthan and she is resident of Delhi. She has further deposed that her grand son Cheeku used to purchase plastic utensils from Ghorewala Mandir, Delhi to Kishan Garh, Rajasthan, where he used to sell the said plastic utensils against the old clothes. 8.1. She has further deposed that on 19.11.2013, in the morning hours, at around 05:00 AM, she came to Ghorewala Mandir for selling old clothes and saw that her grand son Cheeku was in a rickshaw and the accused Devanand and Prahlad were sitting in the same rickshaw and her grand son Cheeku was sitting in the middle of both. Her grand son Cheeku was saying "ममरम पपसम लम लल, ममझम चममलल पपरर मत लम जपओ". She has further deposed that she called Cheeku to stop the rickshaw but both the accused persons asked the rickshaw puller not to stop the same and they also asked to move fast. Thereafter, she started chasing the rickshaw. She has further deposed that rickshaw puller stopped his rickshaw at a distance of 10 steps from Chameli Park and accused Prahlad and Devanand dragged her grand son Result: Convicted Page 9 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Cheeku to the Chameli Park. Both the accused persons put Cheeku into a pit in the Chameli Park. She reached at the wall of Chameli Park after seeing the signs of dragging of Cheeku by the accused persons. She has further deposed that a small portion of the wall of Chameli Park was lying broken from where both the accused persons took her grand son Cheeku to Chameli Park. She saw that the pant of Cheeku was partially pulled down and buttons of shirt of Cheeku were unbuttoned.
8.2. This witness has further deposed that she saw that accused Prahlad was having big stone and caused injuries by the said big stone many times to her grand son Cheeku on his Chest. Accused Devanand was having danda in his hand and gave beatings with danda many times to her grand son Cheeku on his legs and hand. She has further deposed that in the meanwhile, accused Prahlad took big "Silly" and gave blows by the said big 'Silly' on the head of Cheeku and due to injuries, blood from the head of Cheeku came out (like पपचरपरल) due to which both the accused persons were also smeared with blood. She has further deposed that both the accused persons had strangled the neck of Cheeku after causing injuries. 8.3 She has further deposed that after seeing this incident, she Result: Convicted Page 10 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) became very nervous and thought if both the accused persons would see her, they would also kill her and therefore, she ran away from there and reached to her house. At that time, no one was present at her house and then again, she rushed to Chameli Park. She has further deposed that at that time police had reached the spot and she narrated the whole incident to them and identified the deadbody of Cheeku. This witness has also proved the Arrest Memos of both the accused persons as Ex.PW3/A and Ex.PW3/B respectively, personal searches of both the accused persons as Ex.PW3/C and Ex.PW3/D respectively.
9. PW4 Dharam Pal has deposed that 18/19.11.2013, he was working as Chowkidar at Chameli Park, Raghubir Nagar, Delhi and his duty hours were from 05:00 PM to 09:00 AM. He has further deposed that on 19.11.2013, at about 07:00 AM, when he was taking round inside the Chameli Park, he noticed on the side of Wall, near Ambedkar Market, one deadbody of young boy of about 20 years was lying. There was blood on the head of the deadbody and one blood stained stone was also lying near the head. He has further deposed that near the deadbody, one Checkdar shirt of blue colour which was Result: Convicted Page 11 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) torn and having blood stains was lying. On the deadbody, one blue colour Jeans Pant was slightly pulled down and near the head of deadbody, there was lot of blood lying. He immediately went to the PS Khyala and informed the police officials regarding the deadbody. This witness has proved the copy of DD entry no.14A as Ex.PW 8/D.
10. PW5 Smt.Soni has deposed that on 19.11.2013, she was present in the house of her grand mother and was staying there for the last 34 days. On that day, at about 06:15 AM, she saw that her grand mother came in the house and was in perplexed condition. After entering the house, she slept on the bed. She asked her grand mother as to what had happened, but she had not told her anything. She tried to console her grand mother and gave her water. Thereafter, she woke up at about 07:45 AM and she cried and told her that Cheeku has been murdered in the Chameli Park. Then she, alongwith her grand mother, went to Chameli Park, where she found deadbody of Cheeku, her real brother was lying. Some public persons and police were also present there.
Thereafter, she came back to her house, since she had not Result: Convicted Page 12 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) locked the door in hurry.
11. PW6 Smt.Tara has deposed that on 18.11.2013, she alongwith her brother Cheeku came to Delhi from Kishan Ganj, Rajasthan to sell old clothes. In night hours, when she alongwith her deceased brother was present near Ghore Wala Mandir, her brother Cheeku went for urinating. In the meanwhile, accused Prahlad came there and he was asking about Cheeku. She told him that he had gone for urinating. Accused Prahlad told her that her brother Cheeku had stolen his Rs.4,000/ and he will commit his murder. She did not take the words of accused Prahlad seriously. Then she alone went to her grand mother's house to sleep. She has further deposed that on the next date i.e. 19.11.2013, she came to know that her brother Cheeku had been murdered at Chameli Park.
11.1. This witness was declared hostile and crossexamined by the Ld.Addl.P.P.for the State wherein she has declined the suggestion put to her that she had stated to the police that on 18.11.2013, when she was present at Ghore Wala Mandir, accused Devanand was also accompanied by Prahlad. She has admitted the suggestion that when she met accused Prahlad, he was under the influence of liquor and he was also asking for Cheeku. She has also deposed that she was not Result: Convicted Page 13 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) sure whether accused Prahlad met her on 18.11.2013 at 10 PM. She has also denied the suggestion of Ld.Addl.P.P.for the State that she was deliberately not naming the accused Devanand or was deposing falsely in this regard.
12. PW7 Kalu, father of deceased has proved the Identification Memo Ex.PW7/A regarding the identification of deadbody of Cheeku. This witness has also identified his thumb impression at point A on Ex.PW7/B and Ex.PW7/C. He has also proved the handing over Memo Ex.PW7/D regarding handingover the deadbody of Cheeku to him.
13. PW8 HC Amit Kumar has proved the computerized copy of FIR as Ex.PW8/A, which was recorded vide DD no. 18A and his endorsement as Ex.PW8/B. This witness has also proved the Certificate U/s 65B of the Indian Evidence Act as Ex.PW8/C. He has also proved the photocopy of DD no.14A as Ex.PW8/D, attested True copy of DD no.18A as Ex.PW8/E, attested True copy of DD no. 20A as Ex.PW8/F and attested True copy of DD no. 23A as Ex. PW8/G.
14. PW9 Dr.Komal Singh has proved the Postmortem Report of the Result: Convicted Page 14 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) deceased Cheeku bearing no. 1555/3 as Ex.PW9/A. He has opined the cause of death as "Cranio cerebral injury (head injury) caused by direct blunt impact over the skull and the injuries were sufficient to cause death in ordinary course of nature". The manner of death was homicidal. This witness has also identified his initials at point X on Inquest Papers i.e.Ex.PW7/C, Ex.PW9/B, Ex.PW7/B, Ex.PW9/C and Ex.PW7/A. This witness has further deposed that on 18.06.2014, he had received an application of the IO alongwith two sealed parcels containing 'danda' and 'stone slab' for seeking subsequent opinion. He has also proved his subsequent opinion as Ex.PW9/D. This witness has also identified the case property i.e.Slab as Ex. P.1 and danda as Ex.P.2.
15. PW10 Sh.Vishal Pahuja, Ld.Civil Judge has proved the statement of Smt.Mangti Devi U/s 164 Cr.P.C., which was recorded by him on 12.12.2013 on receiving the application of IO and the same is Ex.PW10/B. He has also proved the application of IO seeking copy of the abovesaid statement as Ex.PW10/C.
16. PW11 Ct.Sita Ram has deposed that on 19.11.2013, duty officer gave him copies of FIR in separate sealed envelops and at about Result: Convicted Page 15 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) 10:40 AM, he left the PS and delivered the copies of FIR at the office of DCP at Rajouri Garden, to the Court of Ilaka MM at Tis Hazari and at ITO in the office of Joint CP. This witness has also proved the copy of DD no.20A as Ex.PW8/F, regarding his departure and DD no.23A as Ex.PW8/G regarding his return at PS.
17. PW12 Ct.Anil Kumar has also proved the photocopy of RC as Ex.PW12/A and its acknowledgement as Ex.PW12/B vide which he had deposited six sealed pullandas alongwith RC no.150/21/13 and sample seal at FSL, Rohini, Delhi.
18. PW13 HC Kuldeep Singh MHC(M) has proved the entry at Srl.No.1369 as Ex.PW13/A, regarding deposition of 10 sealed pullandas, personal searches of accused Devanand @ Deva and Prahlad by Insp.Tanvir Ashraf, SHO of PS Khyala on 19.11.2013. He had also proved the entry at Srl.No.1371 as Ex.PW13/B regarding deposition of two sealed pullandas alongwith two sample seals of DFMT DDU hospital. He has further deposed that on 25.11.2013, he had sent six sealed pullandas alongwith sample seal to FSL, Rohini through Ct.Anil Kumar vide RC no. 150/21/13 and proved the photocopy of RC as Ex.PW12/A. He has also proved the Result: Convicted Page 16 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) acknowledgement as Ex.PW12/B. 18.1. This witness has further deposed that on 26.11.2013, he had sent five sealed pullandas alongwith two sample seals of DFMT DDU hospital to FSL, Rohini through Ct.Lajpat vide RC no. 151/21/13. He has also proved the copy of RC no. 151/21/13 as Ex.PW13/C and acknowledgement as Ex.PW13/D.
19. PW14 Dr.Dhananjay Kumar has proved the handwriting of Dr.Ritu Kathuria, who has left the services of hospital and her present whereabouts are not known, on the MLC bearing no.26506 dt. 19.11.2013, Ex.PW14/A and has also identified her signatures at point A. He further deposed that as per endorsement of Dr.Ritu Kathuria, the blood sample in gauze of the patient Prahlad was collected, sealed and handedover to the IO. He had also proved the handwriting of Dr.Reena on the MLC bearing no. 26553 dated 19.11.2013 of Devanand as Ex.PW14/B as well as identified her signatures at point A, as Dr.Reena has also left the services of hospital and her present whereabouts are not known. He further deposed that as per endorsement of Dr.Reena, the blood sample in gauze of the patient Devanand was collected, sealed and handed over Result: Convicted Page 17 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) to the IO.
20. PW15 Insp.Mahesh Kumar has proved his Scaled Site Plan as Ex.PW15/A, which he had prepared on 03.01.2014.
21. PW16 Ct.Lajpat has deposed that on 26.11.2013, on the direction of IO/Insp.Tanvir Ashraf, he received five sealed exhibits from MHC(M) vide RC no. 151/21/13 and deposited the same at FSL, Rohini in sealed condition. He had also handedover the acknowledgement to the MHC(M).
22. PW17 Ct.Subhash Chand had joined the investigation alongwith SHO/SI Nafe Singh and Dharampal. He got recorded the FIR registered and handedover the copy of the same to IO/Insp. Tanvir Ashraf. He has also proved the Arrest Memos, Personal Search Memos and Disclosure statements of the accused persons. He has also proved the Seizure Memo of Danda and two Jeans Pants of accused persons as Ex.PW17/A, got recovered by the accused persons.
23. PW18 Kamal, uncle of deceased had proved his statement regarding identification of deadbody of Cheeku as Ex.PW9/C. He has also proved the handingover Memo Ex.PW7/D regarding Result: Convicted Page 18 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) handingover of deadbody of Cheeku to his father.
24. PW19 HC Nawal Singh has deposed that on 27.05.2014, Ct.Ashok had deposited with him seven sealed parcels and FSL report in sealed envelop duly sealed with the seal of FSL, Rohini, Delhi in the present case and he handedover the result of FSL to the IO/Insp.Tanvir. He has further deposed that on 18.06.2014, two sealed parcels stated to be containing stone pieces were taken by Insp.Tanvir for submitting the same before the doctor for opinion vide RC no. 76/21/14. He has further deposed that on the same day, Insp.Tanvir Ashraf deposited two parcels duly sealed with the seal of DDU hospital stated to be containing that very stone pieces. He deposited those parcels in malkhana and made relevant entries in this regard in front of entry no. 1369 in register no.19. This witness has proved the photocopy of entry no. 1369 as Ex.PW19/A.
25. PW20 Smt.Shashi Bala Pahuja, Sr.Scientific Officer (Biology) FSL, Rohini has proved her report as Ex.PW20/A. She has further deposed that net result of her examination is that 'Alleles' from the source of exhibit 2 (Pant of accused Devanand @ Deva) and exhibit 3 (Pant of accused Prahlad) were found accounted in the 'Alleles' Result: Convicted Page 19 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) from the source of exhibit 4 (blood stained gauze of deceased).
26. PW21 SI Nafe Singh has deposed the manner in which he had conducted the proceedings of the present case. He has proved the copy of DD no.14A as Ex.PW4/A, photographs of the spot as Ex. PW1/A to Ex.PW1/F, Seizure Memo of blue coloured shirt having blood stains, triangle shape blood stained Slab/Stone piece and blood sample and earth control as Ex.PW21/A. He has also proved the Arrest Memos, Personal Search Memos and Disclosure statements of both the accused persons as Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW3/D, Ex.PW21/B and Ex.PW21/C respectively. He had also proved the Pointing Out Memo of the place of occurrence as Ex.PW21/D. He has also proved the Seizure Memos of Jeans Pants of both the accused persons as Ex.PW21/E and Ex.PW21/F respectively, Seizure memo of danda as Ex.PW21/G and seizure memo of exhibits preserved by the doctor as Ex.PW21/H. This witness has also identified the case property i.e. Blue colour Jeans Pant of both the accused persons as Ex. P.3 & Ex. P.4, one blood stained shirt having dirty brown stains as Ex.P.5, one danda as Ex.P.2, earth control as Ex.P.6 and one triangle shaped slab of Stone Result: Convicted Page 20 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) having stains as Ex.P.1.
27. PW22 Dr. Sarabjit Singh, Sr.Scientific Officer, FSL, Rohini has proved his detailed report as Ex.PW22/A. He has further deposed that on examination, blood was detected on Ex.1, Ex.2, Ex.3, Ex.5 to Ex.7. Blood could not be detected from Ex.4. He has further deposed that he also examined the abovesaid exhibits serologically. Ex.1 i.e.Shirt and Ex.7 (blood stained Knife) were of 'B Group'. There was no reaction in Ex.3 and Ex.5. In Ex.2 (Stone) and Ex.6 (blood gauze) false reaction was observed. He has also proved his another detailed report as Ex.PW22/B.
28. PW23 Insp.Tanvir Ashraf, IO/SHO of PS Khyala has deposed about all the proceedings conducted by him in the present case. He has proved the copy of DD no.14A as Ex. PW4/A, Tehrir as Ex. PW23/A, Site Plan as Ex.PW23/B, Seizure Memo of shirt of the deceased, blood stained Pantagonal Slab (that looked triangular), blood sample of gauze from the blood lying on the spot, blood soaked earth control, earth control as Ex.PW21/A, Computerized copy of FIR as Ex.PW8/A. He has also proved the photographs of the spot, which were clicked by the Crime team as Ex.PW1/A.1 Ex.PW1/B, Result: Convicted Page 21 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Ex.PW1/C to Ex.PW1/F as well as Crime team report as Ex. PW 2/A. He has also proved the Arrest Memos of both the accused persons as Ex.PW3/A & Ex.PW3/B respectively, Personal Search Memos of both the accused persons as Ex.PW3/C & Ex.PW3/D respectively and disclosure statements of both the accused persons as Ex.PW21/B & Ex.PW21/C respectively. He has also proved the Pointing Out Memo of place of incident as Ex.PW21/D, Seizure memo of Jeans Pant of accused Prahlad as Ex.PW21/E and Seizure memo of Jeans Pant of accused Devanand as Ex.PW21/F respectively, Seizure memo of Danda as Ex.PW21/G, Seizure memo of blood samples as Ex.PW17/A, identification statements as Ex.PW9/C and Ex.PW7/A regarding identification of deadbody through his father Kalu and uncle Kamal. He has also proved the Brief facts as Ex.PW9/B, request for P.M.examination as Ex.PW 7/C and death report as Ex.PW7/B. 28.1 This witness has further deposed that on 20.11.2013, postmortem examination of the deceased was conducted vide Postmortem report as Ex.PW9/A and after postmortem, deadbody was handedover to father of deceased vide memo as Ex.PW7/D. He Result: Convicted Page 22 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) had also proved the Seizure Memo Ex.PW21/H of blood in gauze, clothes of deceased and sample seal of DDU hospital, copy of RC no. 150/21/13 as Ex.PW12/A, copy of RC no. 151/21/13 as Ex.PW13/C, acknowledgement from FSL as Ex.PW12/B, Ex.PW 13/D, Scaled Site Plan Ex.PW15/A, application of IO regarding recording of statement of Mangti Devi U/s 164 Cr.P.C. as Ex.PW 10/C, statement as Ex.PW10/B, FSL report from DNA Finger Printing Unit as Ex.PW20/A, report from Biology Division as Ex.PW22/B, report from FSL regarding Earth Control as Ex.PW 22/A. He has proved the copy of RC no. 76/21/14 of Danda and Slab as Ex.PW23/C, his application seeking subsequent opinion as Ex.PW23/D and subsequent opinion as Ex.PW9/D. This witness has also identified all the case property seized in this case.
29. Thereafter, statements of both the accused persons U/s 313 Cr.P.C. were recorded, wherein accused Prahlad deposed that he has been falsely implicated in this case. The blood of the deceased was illegally collected and sprinkled over his clothes to show his connection with the present case. There is no motive to kill the deceased. The testimony of PW3 is concocted and unimaginable in Result: Convicted Page 23 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) any manner what so ever. Accused Devanand deposed that he has been falsely implicated in this case. All the articles were planted upon him to falsely implicate him in this case. He has nothing to do with the incident in question. The defence taken by both the accused persons is common. Accused Prahlad claims that Mangati Devi/PW 3 and PW5 Smt.Tara are planted witnesses. Conversely, accused Deva Nand claims that all the witnesses of the prosecution are planted witnesses. They are also stated to be interested witnesses as related to the deceased. They also claimed that the Stone/Slab Ex.P.1 and the Danda Ex.P.2 are planted. They even denied that no recovery of danda Ex.P.2 was effected upon their instance. As a matter of fact, he also claims that Ex.P.5 i.e.blood stained shirt of Victim, Ex.P.6 i.e.Earth Control Samples are also planted in this case and the Seizure Memo Ex.PW21/A has been fabricated. Accused Prahlad further submitted that he was not apprehended from the spot. He further claims that Seizure Memos Ex.PW21/E as well as Ex.PW 21/F are both fabricated. Likewise he claims fabrication of Seizure Memo of Danda Ex.P.2 which is Ex.PW1/G. He claims that he had no motive to kill the deceased.
Result: Convicted Page 24 of 59State Vs. Prahlad FIR 477/13 (56739/2016) 29.1. Accused Deva Nand specifically denies the recovery of danda and claims false arrest submitting that it was his own mother who got him arrested due to his habit of heavy drinking. He denies that Ex.P.3 is the Jeans Pant that he was wearing. Therefore, he claims that no blood sample of deceased was drawn as stated and on the contrary, the blood from the body of the deceased was taken by the IO and planted on the Pant Ex.P.3, so that a false DNA report could be prepared. However, both the accused persons denied to lead any evidence in defence despite opportunity to that effect.
30. I have heard Sh.Dhruva Bhagat, ld.Amicuscuriae Counsel for accused Prahlad and Sh.Rajeev Mittal, ld.legal aid Counsel for accused Devanand and Sh.B.B.Bhasin, Ld.Addl.P.P.for the State and have perused the record carefully.
PROSECUTION ARGUMENTS
31. Mr.Bhasin, Ld.Prosecutor urges that the prosecution has, without any reasonable doubt, proven the case against the accused persons for the offence Punishable U/s 302/34 IPC. He has, per force, argued that none of the witnesses of the prosecution have been shaken from their reliable testimonies and there are only minor discrepancies which do not go to the root of the matter. He claims that sequence of Result: Convicted Page 25 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) events regarding investigation has been brought forth by way of unimpeachable evidence in testimony of the police witnesses in investigation. He claims that there is nothing on record to show that the samples deposited with the MHC(M) were, in any way, compromised. He claims that the sequence of narration of circumstances by the relevant witnesses who have handed over the samples including the MHC(M) clearly show that there was no contamination/Pilferage of the samples. He further claims that medical evidence also show that the blood present on Jeans Pants Ex.P.3 and Ex.P.4 respectively of both the accused persons was established by medical evidence as the blood of the deceased that was lifted in sample gauze and handedover to the IO. 31.1. He further argues that PW3 Smt.Mangati Devi is a rustic lady who was about 75 years old on the date of her first testimony in the Court i.e. 15.09.2014. The incident occurred on 19.11.2013 and at that time, the witness was about 73 years of age. It is submitted that there are only minor contradictions in her testimony and the same do not go to the root of shaking the prosecution version. 31.2. He further argues that Chowkidar Dharampal/PW4 has Result: Convicted Page 26 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) also given credible testimony in terms of the statement to the police and the same is the position with respect to PW5/Soni i.e.grand daughter of PW3.
31.3. He does point out that as per the PW5 Smt.Soni, eye witness/PW3 Smt.Mangati Devi arrived back at her house at about 06:15 AM in a very perplexed condition in as much as, she could not state anything. She slept on bed and woke up at about 07:45 AM shouting that Cheeku has been murdered in Chameli Park. The IO/PW23 Insp.Tanvir Ashraf has thoroughly maintained that PW3 Smt.Mangati Devi was in a very traumatic condition which was apparently visible when she met him on the spot for the first time and she took considerable time of about 1½ or 2 hours to gather her wits. 31.4. It is therefore pointed out that although PW3 Smt.Mangati Devi was supposed to have disclosed that PW5 Smt.Soni/her grand daughter was present in her house when she rushed back after witnessing the incident from Chameli Park which she failed to do, however it cannot be taken as an element of such doubt that accrues to the accused persons that would warrant discrediting the entire testimony of PW3. The attention of the Court is drawn to the fact that the witness is rustic and was 75 years old when giving eye Result: Convicted Page 27 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) witness account in the Court.
31.5. It is further submitted that there are few confrontations brought out in her statement by the defence, however the said confrontations are not going to the root of the matter. 31.6. He further argues that motive behind the murder is established in the testimony of PW6 Smt.Tara who is another grand daughter of the eye witness PW3 Smt.Mangati Devi. It is pointed out that though the witness ought to have also taken the name of accused Devanand as the companion of coaccused Prahlad, who interrogated her regarding whereabouts of his brother Cheeku (Victim) on the night of 18.11.2013 qua allegation of him having stolen Rs.4,000/ from the person of the accused Prahlad yet, this sole factor can not be accounted for extending any benefit of doubt to the accused Deva Nand as he was seen (by PW23) committing offence complained of on the subsequent day in the morning alongwith his coaccused. 31.7. It is further submitted that PW10 has duly proved statement of PW3 Smt.Mangati Devi recorded U/s 164 Cr.P.C. which is Ex.PW10/B, wherein she has categorically provided eye witness account of the main incident.
31.8. It is further submitted that the accused persons are Result: Convicted Page 28 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) proven to have been arrested from a distance of less than a KM. from the spot of occurrence on the date of occurrence at about 04:30 PM and at that time they were wearing the trousers which were found to be blood stained and which blood, medical evidence proves to be that of Victim.
31.9. It is urged that the testimony of PW17 Ct.Subhash Chand, PW21 SI Nafe Singh and IO PW23 Insp.Tanvir Ashraf regarding the arrest of the accused persons is consistent. It is pointed out that there is evidence on record that the public persons were not present when the police reached the spot of occurrence and no members of public were present even when the arrest was made. DEFENCE ARGUMENTS :
32. So far as the defence is concerned, the arguments by Sh. Dhruva Bhagat, ld.Amicuscuriae for accused Prahlad and arguments of Sh. Rajeev Mittal, ld. Amicuscuariae for accused Devanand are more or less supplementary. Therefore, the arguments can be highlighted in a clubbed manner.
33. The defence counsels have sought to highlight the fact as to how the testimony of PW3 cannot be relied upon by this Court and as to why PW5 is a planted witness. In doing so, they took the Court Result: Convicted Page 29 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) through the testimony of PW3 highlighting that the witness can be seen to be providing her testimony in graphic details which, in turn, establishes her as an 'intelligent witness' rather than 'rustic'. It is urged that for this reason, it is not expected of her to be confused in her Court statement. It is submitted that the such intelligent witness is displaying several events of improvements in her court testimony.
34. It is pointed out firstly, that contrary to her statement Ex.PW 3/A, the witness is stating that she came in the morning at about 05:00 AM of 19.11.2013 to Ghore Wala Mandir for selling old clothes. She states to be carrying two bundles of clothes which she kept on the ground before chasing the rickshaw. This fact is also missing in her statement Ex.PW3/A.
35. Secondly, her statement above is silent regarding the deceased saying "ममरम पपसम लम लल ममझम चममलल पपरर मत लम जपओ". However, in her Court Statement, she states so.
36. She claims, thirdly, in her court statement to have called Cheeku to have the rickshaw stopped but the accused persons asked rickshaw puller to move fast. This fact is also not narrated in Ex.PW 3/A. Result: Convicted Page 30 of 59 State Vs. Prahlad FIR 477/13 (56739/2016)
37. Fourthly, she claims in court statement that the accused persons had put down Cheeku in a Pit in Chameli Park which fact is also not recorded in Ex.PW3/A.
38. Fifthly, she stated in Court to have reached the wall of Chameli Park after seeing the signs of the accused persons dragging her grand son Cheeku. This fact is also missing in Ex.PW3/A.
39. Sixthly, she claims to have narrated the fact of murder to Cheeku's sister namely Chini who resided in Ghaziabad, however, her statement Ex.PW3/A is again silent on that aspect. (Although it is not clarified by the prosecution on record, however, the Ld. Prosecutor urged that in all eventuality the said "Chini" is PW5 Smt.Soni being sister of the deceased and one of the grand daughter of PW3). The Court observes that the address of PW5 as provided by her is of Raghubir Nagar, Delhi and not of Ghaziabad.
40. It is further submitted that the witness is also otherwise improving on her previous statement as she claims that the Victim was given a number of blows by a big stone by accused Prahlad and that too, on his Chest. Likewise, she improves upon her statement when she states in the Court that accused Devanand gave many blows Result: Convicted Page 31 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) with danda to Cheeku on his legs and hand. She also claimed otherwise than her previous statement that the accused persons also strangled the neck of Cheeku after causing injuries. She does not say in her Chief Examination or in her previous statement that she had shouted after the incident but in her crossexamination, she claims to have shouted thus, "Cheeku रल मपर पदयप, मपर पदयप".
41. It is lastly contended on the issue that PW6 Smt.Tara is another grand daughter and sister of the deceased. She claims to be residing with her grand mother in her grand mother's house, where she was present since last 15 days of the date of incident and where she had slept on the intervening night of 18/19.11.2013. The said Smt.Tara has not implicated accused Deva Nand in her statement regarding motive of the murder. Moreover, PW3 Smt.Mangati Devi has put the testimony of PW6 in doubt as she claims in her cross examination that "I do not know Tara". She further claims that "I also even do not know where she resides". She claims to have two grand Sons including Cheeku and one grand daughter. It is therefore, urged that testimony of Tara is under doubt and testimony of PW5 stands belied in the testimony of PW3 making PW5 as a planted Result: Convicted Page 32 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) witness.
42. The defence counsels have thereafter, pointed out to the improbabilities in the statement of PW3. It is pointed out that the distance between Ghore Wala Mandir and Chameli Park is about 500 Mtrs. as stated by PW3. She is an old lady who is projected to have been chasing the rickshaw puller for 500 mtrs. even though she is a blood pressure patient as stated by PW5. This is said to be highly improbable. It is also submitted that the time was of 05:00 AM in the morning and it is highly improbable that nobody heard any cries of the Victim even though the Park is frequented by morning walkers.
43. It is said to be highly improbable that the accused persons would still remain in the vicinity of the crime scene and that too, within a radius of 1 Km.when it is expected of them to run away from the Crime Scene as far as possible if they had committed the murder.
44. Equally improbable is said to be the submission that both of them were wearing the same blood stained Jeans Pants even at the time of arrest when it was expected of them to dispose of such trousers. It is pointed out that their residence from the place of arrest is within 500 Mtrs. only. It is pointed out that the prosecution is silent whether the Result: Convicted Page 33 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) shirt which the accused persons were wearing was having blood stains or not. It is said to be highly improbable that the accused persons stayed in the vicinity of the Crime Scene when they knew that PW3 Smt.Mangati Devi had seen them committing the offence.
45. The defence attempted to point out another contradiction in the light of testimony of PW3 Smt.Mangati Devi vis a vis the Postmortem report of the Victim Ex.PW9/A where only two injuries are described which is said to be in a stark contrast to the testimony of PW3 to the effect that both the accused persons had given a number of blows to the Victim.
46. It is also contended that presence of PW3 Smt.Mangati Devi was not ensured by the local police in the entire investigation, particularly with respect to the investigation dated 19.11.2013 i.e. the date of incident. It is submitted that all Seizure Memos as well as disclosure statements of both the accused persons are signed only by SI Nafe Singh as a witness. It is submitted that the investigation does not show that the other police official i.e.Ct.Subhash/PW17 signed on these memos.
47. It is also submitted that PW3 Smt.Mangati Devi had arrived at the spot in the presence of the Crime Team officials and it is clear Result: Convicted Page 34 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) from the testimony of the police officials that the deadbody was identified by PW3 Smt.Mangati Devi before the dispatch of the rukka. It is urged that the presence of PW3 Smt.Mangati Devi as the person who identified the deadbody is doubtful as there was an occasion for the IO to also record her statement prior to the dispatch of the rukka to the PS for the registration of the FIR. As a matter of fact, the factum of arrival of Smt.Mangati Devi/PW3 on the spot and identifying the deadbody stands recorded in the rukka Ex. PW23/A. It is urged that the members of the Crime Team would not have recorded the details of the Victim as "Unknown" in the Crime Team Report Ex.PW2/A if they had proceeded to the spot and Smt.Mangati Devi also had arrived there in their presence.
48. Regarding the aspect of the recovery of the Danda Ex.P.2, according to SI Nafe Singh, the place of recovery of the said Danda Ex.P.2 was an open place easily accessible to the public. On the contrary, as per PW23/IO Insp.Tanvir Ashraf, the place of recovery of Ex.P.2 danda was not a place that was easily accessible to anybody because it was behind a wall and not easily visible. It is submitted that the above aspects including absence of public witnesses to the Result: Convicted Page 35 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) event of recovery make it doubtful. Therefore, Danda Ex.P.2 is a planted material.
49. It is further urged that Danda was never shown to PW3 Smt.Mangati Devi for its identification in the Court. Lastly, it was also argued that there is no explanation on record as to whether alternative Trousers were arranged for the accused persons when the Trousers that they were wearing were seized by the Police.
50. In order to supplement these submissions, the ld.Amicuscuriae Mr.Dhruva Bhagat places reliance and the Judgment of the Hon'ble Delhi High Court in Criminal Appeal nos. 123/2012 and 208/2012 titled as Mukeem and Another Vs. State and Khalid Vs. State, which is a common Judgment dated 21.09.2012.
51. In the said cases, the Appeals against Convictions were allowed. Following discrepancies are stated to be worth comparable with discrepancies in this case; vis a vis :
Mukeem and Anothers Vs. State Vs. Prahlad State (PRESENT CASE ) Result: Convicted Page 36 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) (1) Crime Team could not lift any Here also, the Crime Team could Finger Prints on any article. not lift Chance Prints from the spot and the Danda was recovered very late.
(2) The accused did not sell the (2) Here also, the accused
items for a period of 67 weeks persons were found wearing
which is contrary to normal same trousers which had blood
human conduct. on them for the whole day which
is an unexpectable normal
human conduct for a murderer.
(3) Amita Goyal's conduct was (3) Smt.Mangati Devi portrays
highly unnatural and abnormal highly absured behaviour after
as she did not shout or try to call witnessing the crime by not
after witnessing the whole telling anyone about it and even
incident. after reaching her house.
(4) Jewellery of insignificant (4) Danda Ex.P.2 was planted value was planted upon the upon the accused to create accused to create evidence. evidence.
(5) Arrest and recovery was (5) here also, arrest is suspicious highly suspicious. as accused caught the same day at a distance of 500 Mtrs. from the place of incident.
REBUTTAL BY PROSECUTION:
52. The Ld. Prosecutor has refuted these contentions submitting that the contradictions are only minor. He submits that though PW3 Result: Convicted Page 37 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) claims presence of none at the house when she reached after incident, however, she is a rustic old lady. There is no reason to doubt testimony of PW5 Smt.Soni. It is urged that minor discrepancies that do not vitiate the case of the prosecution particularly in the case of an illiterate and rustic witness are to be ignored. The Ld.Prosecutor has placed reliance upon the Judgments titled as Vijay @ Chinee Vs. State of Madhya Pradesh (2010) 8 SCC 191; State of Karnataka Vs. Smt.Suvarnnamma & Anr. Decided by the Hon'ble Apex Court on 14.10.2014 in Crl.Appeal No. 785/2010; Shivaji Sahab Rao Bobade and Anrs. Vs. State of Maharashtra, AIR 1973 SC 2622 and Bhajan Singh @ Harbhajan Singh & others Vs. State of Haryana, AIR 2011 SC 2552.
53. He further urges that the defence never put a question to PW 23 as to why Smt.Mangati Devi was not present throughout in the investigation and otherwise also PW23 categorically stated that after arrest of the accused persons, she was discharged for the day. Her signatures on Arrest Memos as well as Personal Search Memos of the accused persons are duly proved.
54. He further urges in rebuttal that no law prescribes that each Result: Convicted Page 38 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) person who is present in investigation has to sign on the documents pertaining to investigation. He further submits that even the arguments regarding production of alternative Trousers for the accused persons is an after thought as admittedly, no question was put to any of the witnesses in this context.
55. The Prosecutor admits that the place of recovery was a public place but then also asserts that PW23 has explained that it was not easily visible to anyone being behind a wall.
FINDINGS :
56. The purpose of putting up the arguments in their appropriate detail in the preceding paragraph of this Judgment is to highlight that in the instant case, if the Court comes to the conclusion that PW5 and PW6 can be planted witnesses then, the only other testimony worth consideration would be that of PW3 only. Moreover, if the Court comes to conclusion that there are such improvements and improbabilities in her statement then it shall have to also consider whether such improvements and improbabilities, if any, seen in the light of remaining investigation would justify this Court in ignoring her entire testimony or not ?
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57. In my considered view the hitherto referred paragraph constitutes of the broad points for determination also.
58. I shall deal with them in the light of the arguments advanced in the subsequent paragraphs.
59. The Court has set out the gamut of entire evidence in the above preceding paragraphs. It does find that the prosecution seems to be projecting two grand daughters of PW3 including the grand son/deceased. Interestingly, PW3 Smt.Mangati Devi states in her crossexamination that "I had one grand son namely Cheeku and at present I have another grand Son and one grand daughter". She thereafter denies to be knowing Smt.Tara/PW6 who is claiming to be another grand daughter of PW3. The Prosecution no where explains the above anomaly. At the same time, this Court has to be conscious of the fact that neither the prosecution nor the relevant witness i.e. PW3 Smt.Mangati Devi have claimed consanguinity with Tara. Smt.Tara may be the real grand daughter of PW3 Smt.Mangati Devi or she might be referring to her as grand mother out of respect. As a matter of fact, she refers to the deceased as her brother and both of them used to come to Delhi for selling old clothes. During their visit to Delhi, they used to stay at the residence of her grand mother at Result: Convicted Page 40 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Raghubir Nagar. Here also, there is no reference to any relation between the deceased and PW5 by way of consanguinity but it becomes crystal clear on reading testimony of PW6 that whenever she refers to the deceased, she refers to him as her brother which is a strong reason for this Court to accept consanguinity amongst them. It is in evidence that the deceased was born to her (PW3's) real son/PW7 Sh.Kalu who identified the deadbody. This therefore, establishes that Smt.Tara was another grand daughter of the PW3 Smt.Mangati Devi besides the PW5 Smt.Soni. As per the IO, statement of PW6 Smt.Tara was recorded by him on the spot. In her Chief examination, PW6 Smt.Tara does not say that she had visited the spot but then there is a voluntary assertion of the witness wherein she volunteered that she had reached Chameli Park.
60. So far as her sister Smt.Soni is concerned, she was at the residence of PW3 Smt.Mangati Devi when PW3 Smt.Mangati Devi arrived there at 06:15 AM in a very perplexed condition. Being grand daughter of PW3, there appears to be no reason as to why she will be deposing to frustrate the testimony of her grand mother PW3. I am not oblivious to the suggestion given to PW5 by the defence Result: Convicted Page 41 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) that she was deposing falsely being the real sister of the deceased.
61. Turning back to PW3, the said witness did claim to be not knowing Smt.Tara and the place where she was residing. No reason has been explained by the prosecution about this fact in the deposition of the witness under crossexamination. What the Court however observes is that the above statement was made in the cross examination of PW3 conducted by accused Devanand on 15.09.2014. PW6 Smt.Tara was examined subsequently only on 10.11.2014.
62. Therefore, one obvious reason for PW3 to deny knowing Smt.Tara could be her old age and the lengthy crossexamination which she was subjected to.
63. Whatever the said reason may otherwise be, PW3 denying to be knowing Smt.Tara cannot be, in itself, taken as an instance to discredit the entire testimony.
64. The Court cannot be oblivious to the fact that PW6 Smt.Tara is not a witness to the incident but the prosecution witness to prove the presence of motive for the commission of offence of murder.
65. This is a case based on direct eye witness account and not on circumstantial evidence. Even if the prosecution fails to prove the Result: Convicted Page 42 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) motive, the main incident cannot be disregarded, there being a direct eye witness.
66. Needless to say, PW6 creates a doubt when she denies that Devanand was also present with Prahlad on 18.11.2013 in the night hours. In my considered view, even that aspect cannot come in 'handy' to the accused Devanand as he can only claim benefit of doubt regarding his presence with Prahlad on 18.11.2013 in the night time but he cannot claim benefit of this qua the main incident that occurred in the early morning of the following date i.e. 19.11.2013. True, PW6 did not state about the threat by Prahlad of murdering her brother Cheeku to her grand mother but it can be conjointly read from statement of PW6 Smt.Tara which is Mark X as well as the Court Statement of PW6 Smt.Tara that she had not taken the accused seriously. She straightway went ahead to sleep in her grand mother's house.
67. What the Court finds here is that further movements of PW6 are not described at all by the prosecution. It is not specified as to whether PW6 Smt.Tara was also present with PW5 Smt.Soni in the house of PW3 in the morning of 19.11.2013 or not. Even this Result: Convicted Page 43 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) omission cannot be said to be fatal to the prosecution for the reason that the prosecution still has a direct witness in the form of PW3 to prove the main incident.
68. By virtue of the above analysis of testimony of PW5 Smt.Soni and PW6 Smt.Tara, I am of the considered view that PW5 Smt.Soni has remained consistent in her evidence and has, even in her cross examination, boldly denied all contrary suggestions and at the same time, she has explained that her grand mother was very perplexed on 19.11.2013 between 06:15 AM till 07:45 AM which explains own testimony of PW3 to that effect that she was very nervous, terrified and she became unconscious and after regaining her consciousness, she narrated all the facts to the police. She was weeping and crying. PW23/IO Insp. Tanvir Ashraf also supplements this testimony by categorically submitting that Smt.Mangati Devi was visibly traumatic and she took 1½ to two hours to compose herself on the spot.
69. Conjoint reading of testimonies of PW17 Ct.Subhash Chand, PW21 SI Nafe Singh and PW23 IO/Insp.Tanvir Ashraf proves beyond reasonable doubt that the police party was at the spot of occurrence soon after receipt of information from PW4 Dharampal after 07:30 AM.
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70. Smt.Mangati Devi, as per PW5 woke up at 07:45 AM. The police party was at the spot for sometime when Smt.Mangati Devi arrived at the spot and noticed by them. From own statement of PW 3, it would be clarified that she witnessed the assault of her grand son soon after 05:00 AM. She saw the accused persons with her grand son at about 05:00 AM at Ghore Wala Mandir from where she had chased the rickshaw for about 500 Mtrs. and then witnessed the incident. The distance between Ghore Wala Mandir and her house is about 500 Mtrs and the distance between the Ghore Wala Mandir to Chameli Park is about 500 Mtrs. She therefore, covered the distance of about 1 Km.to reach back to her house and reached there at about 06:15 AM as per PW5. Her presence on the spot after witnessing the incident and till the police arrived is nobody's case. As per PW3, her statement was recorded at about 08:00 AM. Rukka was dispatched at about 09:20 AM. It is therefore, clear that when PW3 Smt.Mangati Devi refers to her statement that was recorded at 08:00 AM, she refers to the time when she identified the deadbody of deceased. It is so, as her statement U/s 161 Cr.P.C was recorded much subsequently as clear from statement of PW23. At the same Result: Convicted Page 45 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) time, this was done prior to receipt of original rukka and the copy of FIR. It was handedover to the IO between 10:45 to 11:00 AM and after 30 to 40 minutes of recording statement of Smt.Mangati Devi/PW3.
71. This explains that Smt.Mangati Devi was examined U/s 161 Cr.P.C around 09:30 AM - 09:45 AM by the police.
72. The above analysis of evidence explains the time gap.
73. PW3 Smt.Mangati Devi did claim that when she reached the house after witnessing the incident, no one was present and then again she reached at Chameli Park. What the witness has missed here is the period for which she stayed in the house and whether someone met her there or not. She was in a traumatic condition. She is an old lady. In her crossexamination, she claims to have narrated the fact of murder of Cheeku to his sister Chini. She appears to be confused here as the evidence strongly suggests that these facts were stated by her to PW5 Smt.Soni.
74. It is because of the above reason that PW5 Smt.Soni claimed to have accompanied PW3 Smt.Mangati Devi to the place of incident when her grand mother broke the news of murder to her. She has explained that she returned to her house as she had left it open in a Result: Convicted Page 46 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) rush to reach the spot of incident.
75. Here, the defence has not crossexamined PW5 Smt.Soni regarding the time when the police had recorded her statement, though the defence did ask as to whether police recorded statement of any other witness in her presence at Chameli Park for about 5 10 minutes.
76. In the absence of such crossexamination, the defence cannot claim the entire testimony of PW5 Smt.Soni to be false in the sense that the witness was planted to cover the alleged delay in lodging the FIR or to complete the chain of evidence.
77. In my considered view, the above analysis of evidence is more than sufficient to explain the mental condition of PW3 Smt.Mangati Devi at the time of incident which definitely seems to have swayed her even at the time of her Court Statement as she was reliving the incident while narrating the same in the Court. Thus, the factum of not knowing Smt.Tara/PW6 or the factum of none being present in the house of PW3 Smt.Mangati Devi when she arrived there after witnessing the incident is not sufficient to discredit the testimony of either PW5 Smt.Soni or even PW6 Smt.Tara. PW6 Smt. Tara identifies accused Prahlad as the person who gave threat of Result: Convicted Page 47 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) murdering her brother while exonerating the coaccused Devanand is to no avail as there is a direct evidence to the main incident and coming from the person who says that she saw it.
78. Therefore, I am not inclined to discredit the testimonies of PW 5 and PW6 on the ground that they are planted witnesses which infact brings me to the testimony of PW3 regarding the improbabilities and confrontations pointed out by the defence.
79. PW3 Smt.Mangati Devi has been consistent in her testimony right from the beginning i.e. her statement U/s 161 Cr.P.C. Ex.PW 3/A, her statement U/s 164 Cr.P.C. Ex.PW10/A as well as her Court statement on the material aspects. She does give her testimony in sufficient details which makes her a person of an ordinary prudence. Such witnesses are bound to introduce such trivial aspects that may not have actually occurred at the relevant time.
80. This Court has already set out the improbabilities averred and the confrontations to which the witness was put to in the earlier part of the Judgment.
81. The witness was 73 years old at the relevant time. She was fit enough to be regularly waking up at about 04:00 to 05:00 AM daily Result: Convicted Page 48 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) and go to the Cloth Market for selling old clothes. She does not say to be carrying two bundles of clothes in her previous statement. But, it is expected of her to be carrying clothes to the Cloth Market if she was going to sell old clothes there. Whether or not she was carrying old clothes is not an important aspect when the witness has been maintaining that she was at Ghore Wala Mandir at 05:00 AM where she was going to sell clothes. This stand is consistent in her statement Ex.PW3/A as well as statement U/s 164 Cr.P.C.
82. She is consistent that the Victim was in the rickshaw in the middle and the accused persons were sitting on either sides.
83. In her first statement Ex.PW3/A, she claimed to have sensed that her grand son was being forcibly taken on the rickshaw due to which she started following it and reached Chameli Park. She also saw the Victim being dragged inside the Chameli Park by the accused persons.
84. In Ex.PW10/A, she improves upon submitting that she had called for Cheeku who did not respond. She however maintained to have followed the rickshaw and having seen the entire incident.
85. Even in her Court Statement, she maintains the above stand but added that Cheeku was shouting "ममरम पपसम लम लल, ममझम चममलल पपरर मत लम Result: Convicted Page 49 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) जपओ". Here she also added that the accused persons asked the rickshaw puller to not to stop the rickshaw.
86. She further claims that the beatings were being given several times on Chest, Legs and Hands of the Victim. The defence has tried to claim benefit of these improvements in the statements which are manifest in the confrontations recorded in Court statement vis a vis Ex.PW3/A.
87. The question that arises is whether the above improvements/confrontations are such that could discredit entire testimony of PW3 ?
88. In this context, the Judgment in Vijay @ Chinee Vs. State of Madhya Pradesh (Supra) has been based considering discrepancies in testimony of prosecutrix on trivial matters. It was held that "in the case of minor discrepancies on trivial matters which do not affect core of the prosecution case, evidence should not be rejected in its entirety. It is further observed that evidence must be read as whole and case to be considered in totality of circumstances. It was also observed that the Court can convict the accused on the basis of the evidence which is left as residuary after sifting it and separating Result: Convicted Page 50 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) truth, untruth and exaggerations and improvements".
89. It was also held that the testimony of rustic and illiterate witness can be basis of conviction if they inspire confidence.
90. In the case of State of Karnataka Vs. Smt.Suvarnnamma & Anr. (Supra) also, it was observed as to how the particular version of witness can be discredible. Placing reliance on Judgment titled as Tahsildar Singh Vs. State of U.P. (AIR (1959) SC 1012), it was held that "Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent, it would not be helpful to contradict that witness".
91. In the instant case, the previous statement of the witnesses are not diagonally opposite. Rather, all of them supplement each other. The main incident remains intact. Explanations, insertions and minor contradictions are made, but then considering the age of the witness and the fact that she is deposing in the Court of Law and under cross examination too, these contradictions are found to be not touching on merits of the case.
92. Even otherwise, in Shivaji Sahab Rao Bobade and Anrs. Vs. State of Maharashtra case (Supra), it has been held that "the Result: Convicted Page 51 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) evidence of rural witnesses has not to be judged by same standard of exactitude and consistency as that for urban witnesses".
93. It is further held that "Even if the case against the accused hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. Witnesses have to be weighed and not counted since quality matters more than quantity in human affairs".
94. It is further held that "proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists".
95. It is further held that "Photographic picturisation of blows and kicks and hits and strikes in an attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Efforts to harmonise humdrum details betray Result: Convicted Page 52 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) police tutoring, not rugged truthfulness".
96. Further, in case of Bhajan Singh @ Harbhajan Singh & others Vs. State of Haryana (Supra), it has been categorically held by the Hon'ble Apex Court that "benefit of doubt cannot be given in case of minor contradictions".
97. I am of the considered view that the Law cited by Ld.Prosecutor is not only Apt but also consisting with the case of the State.
98. I am further of the considered opinion that even if the PW3 Smt.Mangati Devi, considering her age, might not have been following the rickshaw very closely but then she also explains to have reached inside the Chameli Park from the broken wall portion after seeing the 'drag marks'.
99. Once inside, she saw the actual beatings that was given to the Victim and on that account, all her three statements are consistent.
100. The number of blows is not the deciding factor in this case. The injuries are well defined in the Postmortem Report and also in the statement of the concerned doctor i.e. PW9 Dr.Komal Singh. Her subsequent opinion that Ex.P.1 and Ex.P.2 could have caused the Result: Convicted Page 53 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) injuries found on the person of the deceased has been duly proved and no crossexamination was offered to PW9 on the above aspect.
101. Therefore, in my considered view the above discrepancies are only minor. PW3 Smt.Mangati Devi cannot be expected to have a photographic memory of the entire scene that she was to reconstruct on the dates when she was examined in the Court on Oath.
102. This now brings me to the other aspects of this case including the medical evidence, recovery and arrest.
103. The medical evidence is also categorically linking both the accused persons to the main incident and their presence on the spot of incident is corroborated by virtue of the same. PW22 Dr.Sarabjit Singh proved his report as Ex.PW22/A. His crossexamination has remained inconsequential for the accused persons. What is established in the testimony of PW22 Dr.Sarabjit Singh is that the shirt of the deceased Cheeku was blood stained. The Pentagonal Stone/Slab Ex.P.1, the blood soaked earth sample, Wooden Danda Ex.P.2, blood sample in gauze and the gauze cloth piece (verified from the comparison of RC Ex.PW23/C) were having remnants of blood.
104. This opinion is supplemented with the opinion of PW20 Result: Convicted Page 54 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Smt.Shashi Bala Pahuja vide her DNA Finger Printing Report Ex. PW20/A. As per the above report, the blood of the Victim was found present on the Trouser of the accused Prahlad Ex.P.4 and Trouser of the accused Devanand Ex.P.3 respectively. The defence is that the police officials had sprinkled the blood of Victim on their Trousers and that the entire prosecution version is silent as to whether the shirts of the accused persons were blood stained or not. In view of the evidence that has been adduced and its unimpeachable quality, I am of the view that the defence is only 'Sham'. The police officials have clarified that when the Trousers of the accused persons were seized, no public person was present. SI Nafe Singh/PW21 and the IO/PW23 Insp.Tanvir Ashraf have stood their ground in the cross examination. The Seizure of the Trousers cannot be doubted.
105. Likewise, the arrest of the accused persons also cannot be doubted. All the three relevant witnesses have maintained that there was no public persons in the parking of Guru Gobind Singh hospital, Raghubir Nagar, Delhi, from where the accused persons were arrested and they have provided cogent and acceptable reasons for it. Moreover, PW3 Smt.Mangati Devi has stood her ground that she was the person at whose instance both the accused persons were arrested.
Result: Convicted Page 55 of 59State Vs. Prahlad FIR 477/13 (56739/2016) She is even the signatory to the Arrest Memo of accused Prahlad Ex.PW3/A and Arrest Memo of accused Deva Nand Ex.PW3/B. Likewise, she is also a witness to the Personal Search Memos of the said two accused persons which are Ex.PW3/C and Ex. PW3/D respectively. She put her thumb impression on these documents. As per the IO/PW23 Insp.Tanvir Ashraf, she was discharged after arrest of the accused persons. He has clarified that the Seizure Memos of seizing Trousers of both the accused persons were prepared at the place where they were apprehended and thereafter PW3 was discharged.
106. The Court therefore, finds evidence beyond reasonable doubt to the effect that the medical evidence corroborates the version of the prosecution and that the arrest of the accused persons in the manner stated, cannot be doubted at all.
107. So far as recovery of one of the weapon of ofence i.e. Danda Ex.P.2 is concerned, it is a version of the police officials that at the time of recovery, no public person was present. Danda was recovered very near to the place of incident which is duly shown in the scaled Site Plan Ex.PW15/A at point F. It is near the wall of the Mandir Result: Convicted Page 56 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) and as per the IO, the said place was behind a wall and thus, even though the place of recovery is a public place yet, the prosecution establishes that it was not easily accessible to everybody.
108. The said recovery has been effected pursuant to the disclosure statement made by the accused persons. Thus, the relevant part of the said disclosure statement Ex.PW21/C is admissible in evidence in accordance of Section 27 of the Indian Evidence Act as the said disclosure led to recovery of the weapon of offence i.e.Danda Ex. P.2. The same has been proved by the Prosecution. There is no question of doubting the testimony of the recovery witnesses. There is no material contradiction amongst their testimonies to that effect. Moreover, the subsequent opinion report Ex. PW9/D which is proved by PW9 Dr.Komal Singh categorically establishes that both the weapons of offence i.e. Ex.P.1 and Ex.P.2 could have caused the injuries no.1 & 2 which are described in the Postmortem Report of the Victim.
109. What this Court therefore observes is that the Prosecution has successfully linked all aspects of the case leaving no loose ends that would grant benefit to the accused persons. The defence has never Result: Convicted Page 57 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) put any question to the relevant witnesses regarding whether alternate Trousers were arranged for the accused persons or not. The argument therefore is clearly an after thought. The Court further agrees with the Ld.Prosecutor that no law prescribes that every persons to the event of recovery of an incriminating material has to mandatorily sign on its seizure memo.
110. So far as the reliance of the defence on the case Mukeem Vs. State (Supra) is concerned, suffice would be to say that perusal of the Judgment reveals that it is fact specific. Same are not the facts that are before this Court.
111. The Court has already observed that the testimony of PW3 Smt.Mangati Devi cannot be doubted and the testimonies of PW5 Smt.Soni and PW6 Smt.Tara particularly PW6 Smt.Tara cannot be completely effaced from the record. The conduct of the accused persons in hanging around the place of incident, therefore does not appear to be such an over whelming instance of imprudent human behaviour that the benefit of it be granted to the accused persons to discredit entire prosecution's case. Needless to say, one of the accused Devanand still smelled positive for 'Alcohol' when his MLC Ex.PW14/B was being prepared soon after his arrest. There could Result: Convicted Page 58 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) be several reasons for them hanging around the spot of occurrence but the plea of innocence owing to it is not sustainable at all.
112. Therefore, it cannot be said that Ct.Subhash, whose testimony is otherwise instilling confidence, was not present at the time of preparation of the recovery Memos and the Arrest Memos.
113. The defence has not produced any evidence in support of the stand taken in Statement U/s 313 Cr.P.C.
114. Consequently, it is held that the prosecution has proved its case against both the accused persons beyond any reasonable doubt. Hence, both the accused persons namely Prahlad and Deva Nand are hereby held guilty and Convicted of the Offence Punishable U/s 302/34 IPC.
They be heard separately on the Quantum of Sentence.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI)
COURT ON: 20.07.2017 ASJ05 (West), THC, Delhi.
Result: Convicted Page 59 of 59
State Vs. Prahlad FIR 477/13 (56739/2016)
IN THE COURT OF SH. MANISH YADUVANSHI,
ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
IN THE MATTER OF Case No. 56739/16 FIR No. 477/13 PS Khyala U/s 302/34 IPC STATE VERSUS (1) PRAHLAD S/O LATE SHANKAR LAL R/O H.NO. K44, J.J.COLONY, RAGHUBIR NAGAR, DELHI.
(2) DEVANAND @ DEVA S/O LATE BHAGWAN DASS R/O H.NO. K25, J.J.COLONY, RAGHUBIR NAGAR, DELHI.
Result: Convicted Page 60 of 59State Vs. Prahlad FIR 477/13 (56739/2016) ORDER ON SENTENCE : 31.07.2017 : Present : Sh.B.B.Bhasin, Ld. Addl.P.P.for the State.
Both the Convicts are produced from Judicial Custody. Sh.Dhruva Bhagat, ld.Amicuscuriae for convict Prahlad and Proxy counsel for Sh.Rajeev Mittal, ld.Amicuscuriae for convict Devanand.
1. Arguments on the point of Sentence have been advanced.
2. Record perused.
3. Sh.Dhurva Bhagat, ld.AmicusCuriae for the Convict Prahlad prays for leniency in sentencing on the ground that the age of Convict is 47 years. He is married and having one son aged about 17 years old. There is no other male member to lookafter his family.
4. On behalf of convict Devanand, Sh.Dhruva Bhagat as Proxy counsel also submits that he is 33 years of age. He is married and having one daughter aged about 15 years old and one son aged about 14 years old. He is also having an old ailing mother, who is partially blind and there is no other male member to lookafter his family and old ailing mother. It is further submitted by Sh.Dhruva Result: Convicted Page 61 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Bhagat that both the accused persons have already remained in J.C.for the period of three years, 8 months and 11 days.
5. Sh.B.B.Bhasin, Ld.Prosecutor has submitted that allegations against both the convicts are grave and serious in nature and they had committed the murder of young boy. Further it is conceded by the Ld. Addl. P.P.for the State that the case does not fall in the category of "rarest of rare cases" and therefore, they be sentenced to Life Imprisonment.
6. Heard. Record perused.
7. Both the Convicts namely Prahlad and Devanand have been convicted for the offence U/s 302/34 IPC. It is to be seen whether the case of the convicts Prahlad and Devanand falls within the category of rarest of the rare cases.
8. In Mahesh Dhanaji Shinde Vs. state of Maharashtra 2014 (3) SCALE 96 a three Judge Bench of the Hon'ble Supreme Court, reaffirmed the decision in Shankar Kisanrao Khade Vs. State of Maharashtra (2013) 5 SCC 546, wherein it was held that :
"While awarding death sentence the "crime test" has to be fully satisfied i.e. 100% and "criminal test"
should be 0%. In other words, there ought to be no Result: Convicted Page 62 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) mitigating circumstances favouring the accused. If there was any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of accused, not being a menace to the society, no previous tract record etc., then the "criminal test" may favour the accused to avoid capital punishment. Even if both the tests were satisfied i.e.aggravating circumstance to the fullest and no mitigating circumstance favouring the accused, still the Court had to apply the Rarest of Rare test (RR Test). The RR test depended upon the perception of the society i.e. it is "Society centric" and not "Judge centric". Thus the test is whether the society will approve awarding of the death sentence for certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges".
9. In Machhi Singh Vs. State of Punjab AIR 1983 SC 957, the Result: Convicted Page 63 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) Supreme Court noted the principles culled out in Bachan Singh's case for awarding death sentence. It was held that the following propositions emerged from Bachan Singh's case :
"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscionably exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
The threeJudge Bench further laid down that the Court may award the extreme penalty of death Result: Convicted Page 64 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) sentence in the rarest of rare cases when society's collective conscience is so shocked that it will expect the holders of the judicial power to inflict the death penalty irrespective of their personal opinion as regards the desirability or otherwise of retaining death penalty.
10. Considering the fact that in the instant case, there is no occasion for the collective conscience of society to be so chocked that it will expect infliction of death penalty, I agree with Ld.Addl.P.P. that this case does not fall in the category of "rarest of rare cases".
11. Turning back to the case on hand, the Court finds that the aggravating circumstances could be stated to be as under :
(a) Convicts and deceased were known to each other. On the day of incident, both the convicts took the deceased to Chameli Park and beat him to death with a Big Stone/Silly Ex.P.1 & Danda Ex.P.2. They both had also tried to strangulate him.
(b) The offence was preplanned as in the night hours of a day prior to the incident, accused Prahlad asked about Cheeku (deceased) from PW6 Smt.Tara and told her that Cheeku had stolen his Rs.4,000/ and he will commit his murder.
(c) Both the convicts and the deceased were in the Result: Convicted Page 65 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) same business i.e.selling the old clothes.
(d) that they did not desist from their intentions even though they knew that PW3 was chasing them.
(e) the acts of convicts in inflicting blows by Danda, Stone and that the trousers of the deceased was pulled down as well as his shirt ripped off his body, makes them so diabolic that ordinarly human conscious will be left aghast.
(f) that they kept hanging around the place of incident reflects upon lack of remorse as an urge to flee is a natural consequence of acts of such nature as complained of.
The mitigating circumstances could be as under :
(a) There is no earlier criminal history of both the convicts.
(b) Both the convicts were of comparatively young age as on date of incident.
(c) Both the convicts belong to lower middle class strata of society.
11. Although the aggravating circumstances are greater than mitigating, as noted above yet, there is no material placed on record by the State to show that convicts Prahlad and Devanand are the Result: Convicted Page 66 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) persons who cannot be reformed or are menace to the society. From the material already on record, it is evident that the over all conducts of both the convicts Prahlad and Devanand was satisfactory in jail and there were no complaints against them. Thus, in these circumstances the death penalty cannot be awarded to both the convicts.
12. I, therefore, sentence both the convicts namely Prahlad and Devanand to undergo Rigorous Life Imprisonment each U/s 302/34 IPC and to pay a fine of Rs.10,000/ each (Rupees ten thousand each) and in default of payment of fine, they shall further undergo SI for one year each.
13. So far as whether the benefit of Section 428 Cr.P.C. to be given to both the convicts is concerned, same is not permitted in view of the following extracts of the Judgment in case titled as Kartar Singh and others Vs. State of Haryana, AIR 1982 Supreme Court 1439 (1), wherein it is held that :
"In the first place a perusal of several sections of the Indian Penal Code as well as Criminal Procedure Code will show that both the Codes make and maintain a clear distinction between Result: Convicted Page 67 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) imprisonment for life and imprisonment for a term, in fact, the two expressions 'imprisonment for life, and 'imprisonment for a term' have been used in contradistinction with each other, in one and' the same section, where the former, must mean imprisonment, for the remainder of the natural life of the convict (vide: definition of 'life' in S.45 IPC) and the latter must mean imprisonment for a definite or fixed period. For instance, Sec.304 IPC provides that punishment for culpable homicide not amounting to murder shall be 'imprisonment for life or imprisonment of either description for a term which may extend to ten years': Section 305 provides that punishment for abetment of a suicide of a child or insane person shall be 'death or imprisonment for life or imprisonment for a term not exceeding ten years'; Section 367provides that punishment for an attempt to commit murder accompanied by actual hurt shall be imprisonment for life or imprisonment of either description which may extend to ten years: so also, voluntarily causing hurt in committing robbery is punishable under Sec.394 with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years. Sec.55. I.P.C. uses the two expressions in contradistinction with each other and says that an appropriate Government may in every case in which sentence of imprisonment for life shall heave been passed commute the punishment for imprisonment of either description for a term not Result: Convicted Page 68 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) exceeding fourteen years, similarly S.433(b)Cr.P.C. used the two expressions in contradistinction with one another. Having regard to such distinction which is being maintained in both the Codes it will be difficult to slur over the distinction on the basis that life convicts should be regarded as having been sentenced to lifeterm or to say that the two could be understood as interchangeable, expressions because basically the life term of any accused is uncertain. Further, Sec.57 I.P.C. or the Remission Rules contained in jail Manuals (e.g.Para 516 B of Punjab/Haryana Jail Manual) are irrelevant in that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years for the specific purpose mentioned therein, namely, for the purpose of calculating fractions of terms of punishment and not for all purposes; similarly Remissions Rules contained in Jail Manuals cannot override statutory provisions contained in the penal Code and the sentence of imprisonment for life will have to be regarded as a sentence for the remainder of the natural life of the convict. The Privy Council in Kishori Lal's case AIR 1945 PC 64 and this Court in Gopal Godse's case AIR 1961 SC 600: (1961) 3 SCR 440 have settled this position once and for all by taking the view that a sentence for transportation for life or imprisonment for life must be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life. This view has Result: Convicted Page 69 of 59 State Vs. Prahlad FIR 477/13 (56739/2016) been confirmed and followed by this Court in two subsequent decisions in Ratan Singh's case 1976 (Suppl.) SCR 552: (AIR 1976 SC 1552) and Maru Ram's case (AIR 1980 SC 2147) (supra). In this view of the matter life convicts would not fall within the purview of Sec.428, Cr.P.C".
Thus, no benefit U/s 428 Cr.P.C. is accorded to the Convicts.
Copy of the Judgment and Order on Sentence be given to both the convicts free of cost.
File be consigned to record room.
ANNOUNCED IN THE OPEN (MANISH YADUVANSHI) COURT ON:31.07.2017. ASJ05 (West), THC, Delhi.
Result: Convicted Page 70 of 59