Delhi District Court
State vs . (1) Shivji Singh, S/O. Ram Singhasan ... on 2 May, 2014
IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ
ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI
Unique ID No. 02402R0379792009
Sessions Case No.06/12
Date of Institution: 31.12.09
Date of transfer to this court: 17.08.12
Date on which reserved for orders: 19.04.14
Date of delivery of order: 29.04.14
State v/s. (1) Shivji Singh, S/o. Ram Singhasan Singh
R/o. Vill. Katiknar, PS. Nawan Nagar,
Distt. Buxur, Bihar.
FIR No. 507/09
PS. Mandawali
U/s. 302 IPC
JUDGMENT:
1. Prosecution case is that on 07/10/09, an information via wireless was received at PS Mandawali from PCR regarding a family quarrel at D25/A, Ganesh Nagar, Pandav Nagar. The information is of 19.16 hours. On receiving of this information HC Satish was sent to the spot. In the meanwhile another information was received again through wireless, on which Inspector Keshav Kumar went to the spot. He found HC Sushil and Ct. Murlidhar present at the spot. The FIR No.507/09 PS. Mandawali Page 1 of 55 St. Vs. Shivji Singh door of the flat was closed from inside and they were trying to get it opened. Inspector Keshav Kumar gave his identity and asked for opening of the door. On being asked twice, the door was opened by a person, whose name was disclosed as Shivji Singh S/o Ram Singhashn Singh R/o. Village Post Katiknar, PS Nawa Nagar, District Buxar, Bihar. Inside the flat dead body of a girl was found lying in the other room with injury marks on head and neck. Shivji disclosed that the girl was wife of his nephew Amar Singh, however, he did not say anything else. The dead body was sent to LBS hospital mortuary. Inquiry was conducted from Shivji Singh, who did not give any satisfactory reply. No eye witness was found at the spot. The IO prepared the rukka on the basis of aforesaid facts and sent Ct. Murlidhar for registration of FIR. On the basis of the information sent by Inspector Keshav Kumar FIR u/s. 302 IPC was registered. Inspector Keshav Kumar prepared the site plan. An iron pipe with blood stains was found lying in the corner of the room. A kitchen knife with blood was found lying in the kitchen. Both were seized and sealed by the IO. Statement of Amar Singh, who used to reside with deceased was recorded. In his statement he stated that his uncle Shivji Singh had come from his village for his treatment and that he was not aware as to why he killed Neha, with whom, he i.e. Amar FIR No.507/09 PS. Mandawali Page 2 of 55 St. Vs. Shivji Singh Singh was residing for four years. Amar Singh also stated that Shivji Singh had informed him on mobile that he had murdered Neha. Thereafter, Amar Singh had made a call to PCR from his mobile no. 9958588142. The accused was arrested after the conclusion of investigation. Charge sheet u/s 302 IPC was filed.
2. Charge under section 302 IPC was framed against the accused on 21/10/10. He pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined 18 witnesses.
4. PW1 HC Ram Pal Singh was the duty officer at PS Mandawali and has deposed that he had received a rukka at 22.50 hours on 07/10/09 sent by Inspector Keshav Kumar through Ct. Murlidhar. On receiving the rukka he registered the FIR No. 507/09, the computerised copy of which is Ex. PW 1/A. He deposed that he had made an endorsement on the rukka, which is Ex. PW 1/B. He had handed over the copy of FIR and the rukka to Ct. Murlidhar for giving it to Inspector Keshav Kumar.
The witness also deposed that on 07/10/09, he had also recorded DD No. 49B on the basis of information received from FIR No.507/09 PS. Mandawali Page 3 of 55 St. Vs. Shivji Singh wireless W/O E61 regarding a family quarrel at D25/A, Ganesh Nagar, Pandav Nagar. The copy of DD has been exhibited as Ex. PW1/C. The witness deposed that he had informed HC Satish through telephone and had asked him to take action.
5. PW2 Ct. Manoj Kumar was the member of mobile crime team and had reached the spot on the call of Inspector Keshav Kumar along with ASI Ehsan Ali and Ct. Satish. He has deposed that he took photographs of the spot from different angles on the instructions of the IO with his official camera. The 19 photographs were taken by him, which are Ex. PW 2/A1 to A19 and the negatives of the same are Ex. PW 2/A20 collectively. In his cross examination the witness stated that besides police officials 45 public persons were present at the spot.
6. PW3 Ct. Rakesh Kumar has deposed that on 18/12/09, on the instructions of IO, he took 8 pulandas and two sample seals of KPL BSH and DFMTLBSH vide RC no. 74/21. He also took FSL form along with him. He deposited the same at FSL Rohini and handed over copy of RC to MHC(M). In his cross examination the witness admitted that no time regarding taking of pulandas by him, was FIR No.507/09 PS. Mandawali Page 4 of 55 St. Vs. Shivji Singh mentioned in register no. 19.
7. PW4 Rishi Pal was the manager of Hotel City Place Pahar Ganj. He has deposed that the IO of the case had visited his hotel and the witness had informed the IO that no person by the name of Amar Kumar resided in the Hotel. He also deposed that he informed Inspector Keshav that he had no knowledge about how Amar Singh got connection of mobile No. 9958588142 at the address of hotel. He stated in his cross examination that owners of the hotel had lodged a complainant against Amar Kumar in this regard.
8. PW5 Dr. Vinay Kumar Singh, has proved the postmortem report. He deposed that he conducted the postmortem of the 21 years old female dead body named Neha Sharma on 09.10.09 at 1 pm. He said that the time since death was 4052 hours i.e the death had occurred before 4052 hours. As per PW5 the external examination of the dead body showed :
i. Face was deformed with dried blood stains present all over the face, three teeth, two upper central incisor and one lateral incisor were uprooted/ missing.
ii. Labora minora was enlarged, anal canal, funnel shape with loss of FIR No.507/09 PS. Mandawali Page 5 of 55 St. Vs. Shivji Singh rugosites and anal fissure present at 7' o clock position. External injuries present on the dead body were:
i. lacerated wound of 4 x 3.4 cm present over right eyebrow, 3 cm from midline, margins irregular and bone deep. ii. lacerated wound of 2.5 x 0.9 cm, bone deep 0.2 cm above medical end of right eyebrow, 2.5 cm from midline, right frontal bone fractured underneath obliquely placed.
iii. lacerated wound of 4.3 x 1.2 cm, bone deep 0.2 mm above right eyebrow, 2.3 cm from midline.
iv. lacerated wound of 2 x 0.7 cm present over right side of forehead 2 cm from midline, and 1.8 cm above injury no 3 obliquely placed.
v. lacerated wound of 2.7 x 1 cm present over right side of forehead 1.6 cm from midline, and 0.2 cm above injury no 4 obliquely placed. vi. lacerated wound of 3 x 1 cm present over left side of forehead 5 cm from midline, and 1 cm left eyebrow obliquely placed. vii lacerated wound of 1.7 x 0.5 cm present over left side of forehead 0.8 and lateral to injury no 6 obliquely placed. viii lacerated wound of 3.5 x 1.6 cm present over left parietal region 4 cm above left ear obliquely bone deep.
ix. lacerated wound of 6.6 x 1 cm present 7 cm above left ear over left parietal region 3 cm above injury no 8 oblique bone deep. FIR No.507/09 PS. Mandawali Page 6 of 55 St. Vs. Shivji Singh x. fracture of both bones, left radius and ulna 6 cm above wrist joint on discretion hemorrhage in surrounding tissues. xi. fracture of both bones, right radius and ulna 10 cm below elbow joint on discretion hemorrhage in surrounding tissues. xii. Lacerated wound 1 x 0.5 cm present over right forearm 11.5 cm below elbow joint oblique muscle deep.
xiii. contusion 6 x 5 cm present over outside of right wrist joint. xiv. Contusion 6 x 4 cm present over lateral aspect of right knee joint 2 cm above over thigh.
xv. Abrasion 3 x 2 cm present over left leg 3 cm below knee joint over front.
xvi. Lacerated wound of 2 x 0.8 cm placed 6 cm above elbow over right arm.
xvii. Lacerated wound 2 x 0.5 cm present at right side of chin 1.5 cm from midline.
xviii. Abrasion 8 x 5 cm just below chin.
xix. Abrasion 7 x 2 cm over lateral aspect of left side of neck 3 cm from midline.
xx. lacerated wound 0.6 x 0.2 cm at upper lip 1.5 cm from buccal mucosa was lacerated, size 1 x 0.6 cm over right side. xxi. lacerated wound 7.5 x 1.5 cm, 7 cm above mid clavicular line FIR No.507/09 PS. Mandawali Page 7 of 55 St. Vs. Shivji Singh over lateral part of right side of neck.
The internal examination showed that in head and neck defused sub scalpal hemitoma present all over. Multiple communited fracture involving all bones of face and skull. Brain matter lacerated over right side of frontal region, defused subdural hemorrhage present all over.
It was opined by the witness that the death was caused due to cranio cerabral damage consecutive upon blunt force impact. It was concluded all injuries were ante mortem and were sufficient enough to cause death in ordinary course of nature. The witness has not been crossexamined on the contents of the report.
A bare perusal of the report would show that the deceased was brutally murdered.
9. PW 6 Smt. Asha Sharma, is the grandmother of the deceased. She has deposed that her grand daughter was studying in Delhi and was doing part time job with one Amar Singh in his company at salary of Rs. 7000/ per month. Neha had informed her that she had taken three rooms (on rent) and was residing at the place along with Amar Singh. She informed her that she had entered into a partnership with Amar Singh. On 07/10/09, around 09.30 pm she received a FIR No.507/09 PS. Mandawali Page 8 of 55 St. Vs. Shivji Singh phone call from Amar Singh who had informed her that somebody had killed Neha. Amar Singh on inquiry told her that police was with him. She talked with the police and was informed that they had apprehended the person, who had killed Neha.
She informed her son Vimal Sharma and daughter Pinky about the fact and she came to Delhi along with her husband on 08/10/09. On 09/10/09 she identified the body of her grand daughter, which was handed over to her after the postmortem.
In her cross examination she stated that Neha was not engaged with Amar Singh nor there was any proposal of engagement. She deposed that when she had asked Neha (about the relation with Amar Singh), she had stated that Amar Singh was her boss and she would want to be married at her native place. She had given a negative reply on the question of her interest to marry Amar Singh. The witness deposed that she did not meet Amar Singh after the death of Neha till the date of her deposition and that he did not contact her or her family members.
10. PW7 Ct. Sonu Kaushik had prepared the scaled site plan on the basis of rough notes taken by him on 07/11/09, at the pointing out of Inspector Keshav Kumar. He proved the scaled site plan as Ex. FIR No.507/09 PS. Mandawali Page 9 of 55 St. Vs. Shivji Singh PW 7/A.
11. PW8 Mukesh Gupta, was the care taker of the flat (where the offence took place), where the incident took place. He deposed that the flat belongs to Smt. Vineeta W/o. Devender Singh, his friend. Devender Singh had given the keys of the flat to him for letting out. He had let out the flat to Amar Kumar at Rs. 6700/ per month. Amar Kumar resided in the house with his wife Neha. The police had conducted tenant verification. In his cross he has stated that Amar Singh and Neha had come together and Neha who was having Sindoor in her Mang, was introduced by Amar Singh as his wife.
12. PW9 Devender Singh is the husband of owner of the flat. He has deposed that he had given this flat to Mukesh Chand Gupta, PW 8 as caretaker for letting out the flat to prospective tenants. Mukesh had told him about Amar Kumar to whom he had given the house on rent. He said that he was not aware about the fact of obtaining of mobile connection from the said address by Amar. He proved the copy of rent agreement having the signatures of his wife as Ex.PW1/A. FIR No.507/09 PS. Mandawali Page 10 of 55 St. Vs. Shivji Singh
13. PW10 Jayotish Moharana is the nodal officer of vodaphone SR mobile. He proved the call details of phone number 9654514213 for the period of 01.10.09 to 10.10.09 and also the customer application form. The record is Ex. PW10/A while the application form and declaration form as Ex.PW10/C to D. He deposed that as per their record this number stood in the name of Devender Saraswat and produced the customer application form, having photograph of the customer. The witness also tendered certificate u/s. 65B (4) (c) of Indian Evidence Act in support of correctness of record. The certificate is Ex.PW10/E. He stated that the call detail location 404110013634532 was for east Delhi, Ganesh Nagar from tower located at D303, Ganesh Nagar Complex, Pandav Nagar, Delhi and location 404110013639583 was for East Delhi, Ganesh Nagar from tower located at D24, Thakur Niwas, Pandav Nagar, Delhi, and location 404110013613282 was for East Delhi, Ganesh Nagar from tower located at Ganesh Nagar, opposite Laxmi Nagar mother dairy. The original photograph in the matter was directed to be retained since Ld. Counsel had stated that he wanted to confront PW Devender Kumar with this photograph. However, no application to summon the witness was filed by the defence counsel and the photograph was not put to the witness.
FIR No.507/09 PS. Mandawali Page 11 of 55 St. Vs. Shivji Singh
14. PW11 HC Kiran Pal was posted at PS Mandawali as MHC(M). He has deposed that Inspector Keshav Kumar had deposited four sealed pullanda with the seal of KK and FIR No. 507/09 and he had made entry in register no. 19 against entry no. 892/2525. The photocopy of entry was proved as Ex.PW11/A. On 13.10.09 Inspector Keshav Kumar deposited three sealed pullanda with the seal of LBSH DFMT and one sample seal of No. 507/09 and he had made entry in register no. 19 against entry no. 910/2543.The photocopy of entry was proved as Ex.PW11/B. On 17.12.09 Inspector Keshav Kumar deposited one sealed pullanda containing blood sample sealed with the seal of LBS HOSP KP and one sample seal of FIR No. 507/09 and he had made entry in register no. 19 against entry no. 1019/2651. The photocopy of entry was proved as Ex.PW11/C. He deposed that on 18.12.09 he had sent 8 sealed pullandas alongwith two sample seals vide RC No. 76/21 to FSL Rohini, through Ct. Rakesh, on instructions of IO. Copy of RC is Ex.PW/11/D. He deposed that after depositing the exhibits Ct. Rakesh had given him acknowledgment, copy of which is Ex.PW11/E. In his cross he admitted that the exhibits PW11/A to C were not signed by the SHO.
FIR No.507/09 PS. Mandawali Page 12 of 55 St. Vs. Shivji Singh
15. PW13 Dr. Sushil Kumar has deposed that on 17.12.09 one Shivji Singh was produced before him for collecting of blood and semen samples. After taking the consent, ascertaining that the person was conscious & oriented and checking the vitals of the accused, he was directed to give semen sample. He, however, could not given semen sample despite repeated attempts. Sample of his blood was taken and handed over to the IO concerned. The MLC prepared in this regard has been proved as Ex.PW13/A.
16. PW14 Ct. Dharamvir has deposed that on 07.10.09 he was posted at PS Mandawali and around 7.30 pm was asked by duty officer to reach at D/25A, Ganesh Nagar, where Inspector Keshav Kumar and other police staff were present. He deposed that after reaching the spot he saw that in one room of 2nd floor of the house one dead body was lying having injuries on head, forehead and hands. At about 10.30 pm, he was asked by the IO to go to the LBS mortuary alongwith the dead body. He got the dead body preserved. He has deposed that the accused was present in the flat at the time when he reached there. On 09.10.09 Bua and grandparents of deceased came to the hospital and identified the dead body. IO FIR No.507/09 PS. Mandawali Page 13 of 55 St. Vs. Shivji Singh recorded their statements. After postmortem the dead body was handed over to Pinki and K.B Sharma vide receipt Ex.PW14/A. He deposed that the Doctor concerned had handed over a sealed pullanda to him, after postmortem. He had given the pullanda to IO, who seized it vide memo Ex.PW14/B and the said pullanda was deposited in the malkhana.
In his crossexamination he stated that four five public oersons were present at the spot. Some ladies and some gents. He volunteered that there were many perons in the gali and that the IO did not record statement of public persons. He deposed that he had seen witness Amar on 07.10.09 for the first time in the gali, where the flat was situated and he i.e. Amar had given his statement to IO on the said date.
17. PW15 Ms. Pinki is Bua of the deceased. She deposed that on 07.10.09 she had received a call from her mother informing her that Neha has been murdered. She went to Mandawali Police Station, where many media persons were present and so she could not meet the police. On 09.10.09 she and her parents went to LBS hospital, where she identified the dead body of Neha. She stated that she had not received laptop, purse, mobile and jewellary of Neha, which FIR No.507/09 PS. Mandawali Page 14 of 55 St. Vs. Shivji Singh were given to her by father of the witness. She stated that she suspected that Amar Singh might be involved in the commission of murder.
In her cross by Ld. Addl. PP the witness stated that she was not aware, if the accused is uncle of Amar Singh. In her further cross major portion of her statement given to the police was confronted and the statement given to the police regarding she having been informed about Shiv Ji Singh being uncle of Amar Singh and having caused murder of Neha was denied by her as having been made to the police. The statement under section 161 Cr.P.C is exhibited as Ex.PW15/A.
18. PW16 Vishal Gaurav produced the call details of mobile no. 9958588142 dt. 07.10.09. The call details were proved as Ex.PW16/A and the copy of details of subscriber as Ex.PW16/B1 to B3. The witness, however did not produce the certificate under section 65 B of the Indian Evidence Act.
19. PW18 HC Mahender had handed over the copy of FIR to the senior officers.
20. PW 12 HC Satish and PW17 Ct. Murlidhar had reached the FIR No.507/09 PS. Mandawali Page 15 of 55 St. Vs. Shivji Singh spot after receiving of the first call about quarrel in the family, at PS. PW17 has deposed that on 07.10.09 he was on emergency duty and at about 7.15 pm, he alongwith HC Satish had gone to the spot about which it was informed that a quarrel had taken place there. The spot was H.No.D/25A, Ganesh Nagar. He says that he went to the 2nd floor of the house but the door was not opened.
PW12 HC Satish, says that he was on emergency duty and on receiving the DD No. 49B regarding domestic quarrel at D/25A, Ganesh Nagar, Delhi, he alongwith Ct. Murlidhar had gone to the spot. The spot was four story building and place of incident was 2nd floor. The door of flat was closed. They tried to get the door opened but nobody opened the door.
Both witnesses stated that Inspector Keshav Kumar arrived at the spot and he also made efforts to get the door opened. After some time one person opened the door and told his name as Shivji Singh. Both the witnesses correctly identified the accused. PW12 says that inquiry was made from Shivji Singh regarding nonopening of door by him but he was talking less. Both the witnesses stated that on entering the flat a dead body was found in a room of the flat. The dead body had injury on head & neck. The neck injury was a slit. Crime team was called. Photographs were taken. Finger prints were FIR No.507/09 PS. Mandawali Page 16 of 55 St. Vs. Shivji Singh also lifted. PW12 says that on search from the kitchen one blood stained vegetable cutting knife was recovered and from the other room one blood stained iron pipe was recovered, which was lying on the back side of the door of the room. The clothes of accused Shivji Singh were blood stained. IO lifted blood from the spot and kept the same in plastic dibbi, converted the same into pullanda and seized vide memo Ex.PW12/E. He prepared the sketch of knife, which is Ex.PW12/C. Iron pipe was converted into pullanda and seized. The seizure memo is Ex.PW12/A. The seizure memo of knife is Ex.Pw12/B. Blood stained clothes of accused were also seized vide Ex.PW12/C. The name of the deceased was revealed as Neha w/o. Amar Singh, nephew of accused. IO made enquiry form the neighbourhood but in vain. IO arrested the accused vide Memo Ex.PW12/F, His personal search was conducted vide memo Ex.PW12/G. His disclosure statement was recorded vide Ex.PW12/H. . He deposed that the dead body was sent to LBS hospital and identified the case property which was produced in the court. The knife was exhibited as Ex.P2, Iron Pipe as Ex.P3. The Shirt and pant of accused as Ex.P4 & P5 respectively.
PW17 Ct. Murlidhar deposed that after the seizure of aforesaid articles, IO had given him the rukka, which he took to PS Mandawali FIR No.507/09 PS. Mandawali Page 17 of 55 St. Vs. Shivji Singh and got the case registered. He came back with the original rukka and copy of FIR which he gave to the IO. He identified the case property in the court as above and also the clothes of the deceased which were collectively exhibited as Ex.P1.
21. PW12 in his crossexamination stated that the call was received at 7 pm and he went to the spot on his motorcycle and reached there in 15 minutes. There was no public person at the spot i.e outside the flat at that time. IO did not make any enquiry from the neighborers. The door was opened after half an hour of his arrival, after reaching of Inspector Keshav Kumar. The dead body was lying in the room in front of kitchen. He saw a bed and a T.V in the room but did not notice any computer and laptop. He said that SHO and ACP had reached at the spot but they did not do any writing work there. He said that he does not remember as to whom the seal was handed over after use and as to where the arrest memo was prepared. He says that the accused was arrested at 10 pm and that they had finally left the spot at about 9.45 pm (which appears to be a typographical error). During the period for which they stayed in the flat nobody from the neighbours came there but the IO had made enquiries from the neighbours. Suggestions were given that iron FIR No.507/09 PS. Mandawali Page 18 of 55 St. Vs. Shivji Singh pipe and knife similar to the recovered ones are easily available in the market; nothing was recovered from the spot; writing work was done at the PS and that the accused was not apprehended from the spot. The witness stated that he did not see Amar Singh at any point of time.
22. PW 17 Ct Murlidhar in his crossexamination stated that he alongwith HC Satish had gone to the spot on a two wheeler scooter at 7.16 pm. HC Satish had knocked at the door, however, the door was not opened. It was opened when IO reached at the spot. He says that he does not know if the IO had asked the public persons to join the investigation. He says that he had seen Amar Singh present at the spot. He had left the spot at 8.30 pm on his motorcycle with rukka and had come back at 10/10.15 pm. He says that he had left the spot at about 2 am in the night after completing all the proceedings that day. He says that he does not remember if Amar Singh was present when he came to the spot after registration of FIR or when they left the spot finally. He says that iron rod was recovered by the IO from a room but he does not remember from which room. Suggestions were given that pant shirt of the accused were seized by the IO in PS; writing work was also done at the PS. The witness stated that he does FIR No.507/09 PS. Mandawali Page 19 of 55 St. Vs. Shivji Singh not remember when he saw Amar Singh in the house.
23. Inspector Keshav Kumar was examined as PW18, however, since one witness HC Mahender had already been examined under that number on 10.02.11, the witness was renumbered as PW18A on 20.11.13.
In his evidence the witness has deposed that DD no. 49B was received in the PS about a quarrel at D/25A, Ganesh Nagar, which was attended by HC Satish, however, later an information was received through wireless regarding murder and so he went to the spot. He found HC Satish and Ct. Murlidhar present at the spot and they were trying to get the door of the house opened. The witness deposed that he introduced himself and warned that in case the door is not opened, he would break open the same. Thereafter the door was opened by the accused present in the court, who came outside after opening the door. He made inquiries from the accused and noticed that a dead body of a lady smeared with blood was lying in the left side room. Accused remained silent on interrogation, disclosing only his name as Shivji Singh. Crime team was summoned. Spot was photographed. Chance prints were lifted. Scene of crime report was prepared, which is Ex.PW18/A. The report of finger prints was FIR No.507/09 PS. Mandawali Page 20 of 55 St. Vs. Shivji Singh tendered by the witness in the court and was exhibited as Ex.PW18/B. The dead body was shifted to mortuary of LBS hospital through Ct. Dharmavir. The accused was again interrogated but he remained silent. He made an endorsement on DD No. 49B which endorsement was proved as Ex.Pw18/C. Rukka was prepared and was sent for registration of FIR. Blood sample was lifted and converted into pullanda. A knife was recovered from kitchen which was in bent condition. Its sketch was prepared and same was seized. Blood stained iron pipe was recovered. Same was converted into pullanda and seized. Blood stained clothes of accused i.e a Shirt having white and brown stripe and blue colour Pant were also seized.
He prepared the site plan Ex.PW5/B6 and recorded the statements of PWs. One Amar Singh, who had given the information to the police also came at the spot and his statement was recorded u/s. 161 Cr.P.C. The case property was deposited in malkhana. The accused was with him under his supervision. On 08.10.09, on again being interrogated, the accused disclosed about commission of offence and his disclosure was recorded as Ex.PW12/H. He was arrested and personally searched. On 09.10.09 relatives of deceased came to the PS and identified the dead body. The dead body was handed over to them after the postmortem. On 13.10.09 three parcels FIR No.507/09 PS. Mandawali Page 21 of 55 St. Vs. Shivji Singh were handed over by the Doctors concerned to Ct. Dharamvir He had seized the parcels containing clothes and vaginal swab of the deceased. He obtained call details of mobile phone of deceased and PW Amar Singh. He got prepared the scaled site plan and got verified parcha 12 of accused, which was Ex.PW18/D. On 17.12.09 he moved an application Ex.PW18/E to the court for obtaining blood sample of the accused. The blood sample was seized by him vide memo Ex.PW18/F. On 14.12.09 he had moved an application Ex.PW18/G for obtaining semen and blood sample, which was also allowed but the accused could not give his semen. The exhibits of case were sent to FSL through Ct. Rakesh Tyagi. FSL result is Ex.PW18/H1 and H2.
Witness in his crossexamination stated that no public person was present at the spot when he reached there. There was no flat in front of flat.no. D/25A at that time. No public person came to the spot from the nearby area. No laptop was found inside the house. He had not seized any ladies purse and had not collected any documentary evidence regarding profession of deceased; he also did not seize the personal belongings of the deceased. He deposed that he did not find any laptop of Amar Singh inside the house. Amar Singh had told him that he was having his office at Shipra City Mall FIR No.507/09 PS. Mandawali Page 22 of 55 St. Vs. Shivji Singh but on verification the office was not found there. Amar Singh came at the spot at 11 pm. The crime team did not take the finger print of Amar Singh. He did not seize the mobile phone of Amar Singh. He had arrested the accused in presence of Amar Singh. He finally left the spot at 1.45 am. He denied the suggestion that Amar Singh was the real culprit and that he was let off and accused was falsely implicated in his place.
24. Statement of accused was recorded u/s. 313 Cr.P.C, wherein the entire incriminating evidence was put to him. It was specifically put to the accused that he had opened the door of the 2nd Floor of the house (case property) after many efforts by Inspector Keshav Kumar and that the dead body of a female was found lying inside the room in pool of blood with slit on neck. The witness denied that he had opened the door and pleaded ignorance about the recovery of dead body. It was put to him that a vegetable knife and iron pipe, both blood stained were recovered from the house and he said that it was incorrect. He denied the knowledge about his clothes being blood stained and being seized by the IO. He denied that he was arrested at the spot or having given a disclosure statement. It was put to the accused specifically that blood of blood group 'O' was found on the FIR No.507/09 PS. Mandawali Page 23 of 55 St. Vs. Shivji Singh clothes of deceased and also on his clothes. He stated that it was incorrect. The accused was categorically asked if he wanted to say anything about the case, however, he in one line said that he is innocent and was falsely implicated in the present case.
25. Arguments were heard.
26. Ld. Counsel for accused argued that no independent witness has been involved in the arrest as well as recovery proceedings, which makes the arrest as well as recovery doubtful. The accused has been falsely implicated. The first information received at PS was about the quarrel in the family. The family was of Amar Singh and the deceased and therefore, it cannot be said that accused would have committed the murder. It was argued that Amar Singh had committed the murder and he in connivance with the police got the innocent accused implicated falsely. The relative of the deceased ( her Bua) has deposed that she suspected Amar Singh's involvement in the commission of offence. The conduct of Amar Singh has remained doubtful. He did not come to the spot at all. He did not meet the family of the deceased after her death. He did not come to depose before the court despite several opportunities granted. FIR No.507/09 PS. Mandawali Page 24 of 55 St. Vs. Shivji Singh Personal belongings of the deceased including her laptop was not recovered. Finger prints of Amar Singh were not taken and his mobile phone was not seized.
27. Ld. Addl. PP for the State had argued that the accused was alone in the house, which was locked from inside. There was no other person inside the house. He did not open the door initially and remained silent on interrogation. He has been involved in many cases of Bihar. Regarding the first DD entry, he stated that it was merely recorded that a quarrel in the family has taken place. Since the accused was living in the same house, a quarrel with him would be called a family quarrel only. He argued that accused is related to PW Amar Singh and therefore, his nonappearance in the court should not be read against the prosecution case.
28. Much stress was given on the fact that there was no independent witness of the incident. It is not that no independent/ public witness was examined by the police at all. The police had examined Amar Singh, who had come at the spot; had given the information to the police and was also the witness of extra judicial confession made by the accused. PW Amar Singh, however, did not FIR No.507/09 PS. Mandawali Page 25 of 55 St. Vs. Shivji Singh appear despite summons sent to him several times. Relevantly an application was filed by the accused on 19.08.11 in the court wherein he stated that the court is unnecessarily wasting time in summoning PW Amar Singh and that IO and other remaining witnesses should be summoned and the evidence of PW Amar Singh, in the event of his not coming despite repeated summons should be discarded. The accused now has taken a defence that there is no independent witness and that Amar Singh was the actual accused. Amar Singh was an independent witness since the accused has not admitted that he was his relative, though prosecution has claimed so but has not been able to prove it since Amar Singh did not come to give the evidence. If Amar Singh were the actual offender as is being claimed by the accused, he should have insisted on summoning of this witness so that he could put his defence to this person. The application of accused Shivji Singh indicates that he did not want PW Amar Singh to depose before the court. If he was concerned about the delay being caused in his matter, he could have insisted for sincere efforts to be made for summoning of this witness and not having stated that the witness be dropped altogether. In fact the accused should have opposed the dropping of this witness. His defence that this witness in fact was an accused, in view of his own conduct, therefore, becomes FIR No.507/09 PS. Mandawali Page 26 of 55 St. Vs. Shivji Singh doubtful.
The Hon'ble Supreme Court , in Ramesh & Anr Vs State of UP AIR 2009 SC 2741 held that if the witnesses do not become available, it is not the fault of the investigating agency. More so in a case where the public witness cited by the prosecution is relative of the accused, his nonappearance in support of the accused should not prejudice the prosecution case.
All the prosecution witnesses have deposed that there was no public person present when the police had arrived at the spot. Though some of them say that 45 persons had gathered at a later stage, it is categorically stated by the three main witnesses PW12, 17 & 18A that no one was at the spot before the opening of the door. The accused was found inside the room and the police had entered the room immediately after opening of the same and had found the existence of a dead body inside the house. The absence of an independent witness at the time of finding of the accused inside the room is therefore, properly explained. It was not known before hand that the murderer will be found alongwith the dead body inside the room and so the absence of public persons, as no one was present around the spot, at that time, does not make the case of prosecution on this aspect doubtful. The IO in his crossexamination FIR No.507/09 PS. Mandawali Page 27 of 55 St. Vs. Shivji Singh categorically stated that he had made enquiries from the neighborers and he is corroborated by PW12 HC Satish on this point who says that though he did not go with the IO, the IO had made enquiries from the neighborers. It was categorically stated by the IO that there was no flat in front of the flat in question. Regarding the arrest of the accused, the arrest was made in presence of Amar Singh, who has been shown as the person to whom the information of arrest was given. The witness did not appear despite summons sent to him several times and had to be ultimately dropped by the prosecution. The police therefore, had joined an independent witness that too a relative of the accused in the arrest proceedings and it cannot be said that no independent person was joined in the arrest proceedings also. In any case it is held by Hon'ble Supreme Court in several judgments that the testimony of police witnesses is not to be discarded only because they are police witnesses unless it is shown that they had an interest adverse to the accused.
In Sumit Tomar Vs State of Punjab Criminal Appeal no 16901691 of 2012 decided on 19/10/2012 it was held:
"In a case of this nature, it is better if the prosecution examines atleast one independent witness to corroborate its case. However,in the absence of any animosity between the FIR No.507/09 PS. Mandawali Page 28 of 55 St. Vs. Shivji Singh accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire material relied upon by prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case.
In view of the above discussion, we hold that though this is desirable to examine independent witness, , however, in absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with."
In Rohtas versus State of Haryana JT 2013 (8)SC 181,the Hon'ble Supreme Court again held:
" where all the witnesses are from the police department. Their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency from the victim and the vigilante."
FIR No.507/09 PS. Mandawali Page 29 of 55 St. Vs. Shivji Singh In Gian Chand Vs. State of Haryana Criminal Appeal no 2302 of 2010 dated 23/07/2013 it was held that mere non joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. The investigating Officer in his cross examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness.
In view of the above judgments and the categoric testimony of three prosecution witnesses PW 12, 17 & 18 A that no public person was present at the spot when they reached there and the IO Inspector Keshav Kumar and PW 12 having categorically stated that an effort was made to make inquiries from the neighbours, non joining of public witness stands explained. Neither it was asked from the witnesses if any effort was made to join public witnesses before getting the door opened nor was it deposed by any of them. This part at best can be called a defect in investigation. The Hon'ble FIR No.507/09 PS. Mandawali Page 30 of 55 St. Vs. Shivji Singh Supreme Court in Karnail Singh Vs State of MP (1995) 5 SCC 518 held:
" In a case of defective investigation it would not be proper to acquit the accused if the same is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring IO"
In view of above discussion and the cited judgment the Investigating agency had involved a public witness, who however did not appear and was ultimately dropped; the Police witnesses have deposed about the accused being found in the flat with the deceased; the non joining of public witness before getting the flat opened can at best be termed as faulty investigation, the argument of Ld.Counsel on the issue is thus rejected.
29. It was argued by Ld. Counsel for the accused that Ms. Pinki PW15 had deposed before the Court that she suspected Amar Singh's involvement in the murder of her deceased niece. The suspicion of the family members cannot be substituted for the reliable and concrete evidence available against the accused. No doubt the suspicion can always be a ground raising doubt in the FIR No.507/09 PS. Mandawali Page 31 of 55 St. Vs. Shivji Singh story of prosecution, however, such suspicion should be based on some believable fact or cogent evidence. PW15 in her evidence did not say anything on why she suspected Amar Singh's involvement. She did not say that Neha had complained to her at any point of time regarding a threat from Amar Singh to her life. She was not residing with or near the house of deceased. She does not claim that she was in constant touch with deceased Neha or Amar Singh. Relevantly not even the grandmother of the deceased PW6 Asha Sharma stated that she suspected involvement of Amar Singh in the murder of her grand daughter. Under these circumstances one line stated by PW15 would not become an evidence against accused Amar Singh or a reasonable ground to presume that murder was not committed by the accused.
30. It was argued by Ld. Counsel that the fact that accused was arrested on 08.10.09 and not 07.10.09 indicates that he was implicated after being called to the PS. The incident in this matter is of evening of 07.10.09. The prosecution witnesses, have stated that accused was not telling anything and so he was not arrested though PW18 A, IO/Inspector Keshav Kumar stated in his evidence that accused was with him throughout and was brought to FIR No.507/09 PS. Mandawali Page 32 of 55 St. Vs. Shivji Singh Police Station and that he was under his supervision. He says categorically that since the accused was not speaking anything, he was questioned again at PS and it was only after he made the disclosure that he was arrested in the morning of 08.10.09. The police as per the evidence had left the place of incident between 1 or 2 am. There is absolutely nothing suspicious in the arrest proceedings of the accused as it is clear that though not formally arrested, he was not released and remained in police custody throughout as a suspect and that within a short time he was arrested after concluding the investigation formalities and recording of disclosure. The accused has not explained his presence in the flat and also in NCT of Delhi, considering the fact that he is a resident of Bihar. If the murder was committed by accused Amar Singh and the accused was implicated falsely, nothing stopped him from explaining in his statement under section 313 Cr.P.C as to how the police allowed Amar Singh to go and arrested him, from where and how? PW 14, who had come to the spot at a later stage says that he saw the accused at the spot when he came there. The accused has not explained, how he was found at the spot. Another relevant fact is that PW6 Ms. Asha deposed that she was informed by police around 9.30 pm on FIR No.507/09 PS. Mandawali Page 33 of 55 St. Vs. Shivji Singh 07.10.09 Amar Singh had called her and had told her that her grand daughter has been murdered and he had made her talk with police, who told that murderer of Neha had been caught, which shows that the accused was suspected offender around 9.30 pm also when the information was communicated to the grandmother of the deceased. The ground of delay in arrest is not sustainable.
31. The clothes of the accused, which he was wearing at the time when the police reached the spot were blood stained and were seized by the IO. The blood stained clothes of the accused were sent to FSL alongwith the blood stained clothes of the deceased. The blood of the accused was taken separately during investigation, after the permission of the court and was also sent to FSL. As per the FSL report Ex.PW18/H1 the three wearing clothes of the deceased Ex.1A, 1B and 1C, her metallic Chain Ex.1G and the shirt and pant of the accused seized at the spot as also the blood of the deceased taken by the doctor at the hospital, had the same group of blood i.e 'O' group. This is not the blood group of the accused since his blood was separately taken by the doctor on 17/12/2009 on the application of IO and after obtaining permission from the court. The blood group of the accused was FIR No.507/09 PS. Mandawali Page 34 of 55 St. Vs. Shivji Singh found to be of 'A' group.
The blood of blood group of the deceased was found on the clothes of the accused. He has not given any explanation for how this blood which is not his own blood group, was found on his clothes. In answer to the specific question put to him in his statement under section 313 Cr.P.C. that the blood of same blood group was found on the clothes of deceased and his clothes and this was the blood group of deceased, the witness denied the fact as incorrect without clarifying any further.
The Hon'ble Supreme Court in Krishna Alias Krishnan vs State Of Karnataka on 12 January, 2000: 2001 CriLJ 2696, ILR 2000 KAR 4845, 2001 (1) KarLJ 24 held that once the prosecution establishes the presence of blood on the clothes of the accused which tallies with the blood group of the deceased the law enjoins upon the accused to explain how blood of that group was found on his garments and in the absence of any such explanation which is not forthcoming in this case, the irresistible conclusion is that the presence of blood belonging to the same group as that of the deceased heavily incriminates the accused.
32. The prosecution witnesses have deposed that one knife and FIR No.507/09 PS. Mandawali Page 35 of 55 St. Vs. Shivji Singh one iron rod were recovered from the spot. While the knife was recovered from the kitchen, the iron rod was recovered from a room other than the room, where the dead body was lying. The recoveries have been effected from a closed flat where no one except the accused and the deceased were found. The postmortem report says that there were as many as 21 injuries on the body of the deceased. She had lacerated wound over eyebrow, forehead, parietal region, left ear, fracture in the wrist joints lacerated wound over right forearm, contusions over right wrist joint and right knee joint, abrasion below the chin and on the left side of neck and lacerated wound over lateral part over right side of neck. All the 21 injuries were found antemortem and were found sufficient to cause the death in ordinary course. Labia minora was found enlarged, anal canal in funnel shape with loss of rugosites and anal fisher was found present. The postmortem report suggests that the deceased was brutally beaten and she died due to several injuries caused on her body. Some of them even resulted into the fracture. These injuries have been found to be the cause of the death of the deceased and all these injuries were possible by the weapon of offence recovered from the spot.
FIR No.507/09 PS. Mandawali Page 36 of 55 St. Vs. Shivji Singh
33. The recoveries of weapon of offence in the instant matter were apparently not made pursuant to the disclosure of the accused, however, the recoveries have been shown from the spot itself and accused alone was arrested from the spot. These weapon had blood on them and therefore, it can safely be concluded that these weapons were used in the commission of murder of the deceased. Since no one else was present inside the flat, the recovery of weapon of offence from the closed flat where only accused and the deceased were present at the time of arrival of police, it can be concluded that the accused used these weapons to cause the several injuries suffered by the deceased, which ultimately resulted into her death.
34. The prosecution has proved that the accused was found inside the house and that he opened the door after great difficulty. Three prosecution witnesses though all police officers, have deposed that they kept on knocking at the door but no one opened it and only after Inspector Keshav Kumar gave his identity and threatened to force open the door, that the door was opened. All the three witnesses are saying that the door was opened by the accused. As per all the three witnesses no one except the accused FIR No.507/09 PS. Mandawali Page 37 of 55 St. Vs. Shivji Singh was present in the house at that time and a female dead body was found inside the house. The proved facts, therefore, are that accused was alone in the room with the dead body. The weapon of offence were also recovered from the same room. After this was proved by the prosecution, the onus shifted on the accused to have proved that it was not he who was responsible for the death of deceased or that there was someone else or that the offence was committed before his reaching the spot or anything which could have shown that the offence was not committed by him. The accused, however, has not stated anywhere as to what had happened inside the room. There is no indication coming from the entire crossexamination on involvement of anyone else in the offence. PW12 in his crossexamination categorically stated that accused was present in the room, however, no suggestion was given to the witness that the accused was caught from some place other than the place of incident. A mere suggestion has been given that he was not apprehended from the spot but there is no explanation of how the accused, who is a resident of Bihar came to Delhi, where was he residing if not at the house of Amar Singh and where if not at the spot, was he at the time of incident. There is no suggestion given to PW18A Inspector Keshav that accused FIR No.507/09 PS. Mandawali Page 38 of 55 St. Vs. Shivji Singh was not arrested from the spot though he had categorically deposed that accused was inside the flat and he had opened the door on his warning. The accused thus, has not come out clean with the facts which were in his exclusive knowledge and has not explained his presence at the spot in the manner as shown by the prosecution. The accused, who was duly represented by a counsel at the stage of recording of his statement u/s. 313 Cr.P.C also did not say as to where from he was arrested if not from the spot, what were the circumstances of his arrest etc. despite specific questions having been put to him regarding his presence in the house, the dead body having been found there and the recoveries from the house. The accused was also asked specifically if he had anything to say about the case, however, he merely said that he was innocent and was falsely implicated.
Section 106 of the Indian Evidence Act says that the onus to prove the facts that are in exclusive knowledge of the accused is upon the person in whose knowledge they are.
The section is reproduced hereunder for ready reference:
Section 106 . Burden of proving facts especially within knowledge. when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. FIR No.507/09 PS. Mandawali Page 39 of 55 St. Vs. Shivji Singh The Privy Counsel in Attygalle v Emperor (1936) 38 Bom LR 700 and Stephen Senevirante v The King (1937) 39 Bom LR 1 held that Section 106 of Indian Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing his innocence.
The decision of privy counsel was considered by the Hon'ble Supreme Court in Shambhu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404, wherein it was observed:
" this lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts, which are " especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means fact that are preeminently or exceptionally within his knowledge. If the sections were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not FIR No.507/09 PS. Mandawali Page 40 of 55 St. Vs. Shivji Singh commit the murder because who could know better than he whether did or not. It is evidence that that cannot be intention and the Privy Counsel has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried.
The Hon'ble Supreme Court in State of West Bengal Vs. Meer Mohd. Umar AIR 2000 SC 2988, held as under:
" the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in a pedantic coverage the offenders in serious offences would be the major beneficiaries and the society would be the casualty.... .
...Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other FIR No.507/09 PS. Mandawali Page 41 of 55 St. Vs. Shivji Singh set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 144 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it think likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case".
The Supreme Court further observed:
" the section is not intended to relieve the prosecution of its burden to prove the guilt of accused beyond reasonable doubt but the section would apply to cases where the prosecution has to succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference".
In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681:
" If an offence takes place inside the privacy of a house FIR No.507/09 PS. Mandawali Page 42 of 55 St. Vs. Shivji Singh and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of accused if the strict principle of circumstantial evidence is insisted upon by the Courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. The law does not enjoin the duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind section 106 of the Evidence Act which says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) " A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on FIR No.507/09 PS. Mandawali Page 43 of 55 St. Vs. Shivji Singh him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by remaining simply quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer explanation".
35. In view of the facts as discussed above and the categoric rulings of the Hon'ble Supreme Court, the accused who was found inside the flat alongwith the dead body, having not explained the circumstances of his presence in the closed flat alongwith the dead body cannot claim that it was for the prosecution to have proved as FIR No.507/09 PS. Mandawali Page 44 of 55 St. Vs. Shivji Singh to who committed the offence. The Hon'ble Supreme Court has categorically held that in such cases as the present case, the refusal of the accused to disclose the facts by keeping silent does not help him and adverse inference is to be drawn against him u/s. 106 of Indian Evidence Act.
36. It was argued that the laptop of the accused and the deceased were not seized by the IO. The defence has not established that there was any laptop in possession of the deceased or that it was at the home with her at the time of her murder. There can't be a presumption as argued by Ld counsel that the educated people normally have Laptops these days and so the deceased and Amar Singh must have had one. PW 12 has specifically said in his evidence that he did not notice any laptop or computer in the flat. Similarly regarding the personal belongings of the deceased a metal chain was recovered from her body. There is no evidence that she had on her body any other ornament as claimed by her bua. The photographs of the deceased were taken at the spot and they do not show any ornament worn by her, whatever else was lying in the house does not become the case property of its own. FIR No.507/09 PS. Mandawali Page 45 of 55 St. Vs. Shivji Singh
37. It was argued that finger prints of Amar Singh were not taken and the finger prints taken did not match the prints of the accused. In every criminal investigation irrespective of what evidence is brought forth something always remains undone. Finger prints of accused were taken since he was the prime suspect and police did not suspect Amar Singh, who in fact had informed the police about the incident. The prosecution case cannot be disbelieved relying on certain things in investigation, which could have been done but were not done, ignoring what was done and is sufficient in ordinary course to hold that the offence was committed by the particular person.
Hon'ble Supreme Court in Viscount Siman In stierlant Vs. Director of Public Prosecution, 1944 AC (PC) 315 held that "a reasonable doubt is not a imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense. It must grow out of the evidence in case. If a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitable because of human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hyper sensibility to eliminate a rare innocent from being punished, many FIR No.507/09 PS. Mandawali Page 46 of 55 St. Vs. Shivji Singh guilty persons must be allowed to escape". It was further held that " a judge does not preside over criminal trial, merely to see that no innocent person is punished. A judge also presides to see that a guilty man does not escape. Both are public duties".
So far as Finger Print report is concerned only two chance prints were sent for examination and the report says that these were partial. The report is not conclusive and can not be made a basis for conclusion regarding absence of the accused at the spot and his involvement in the offence.
38. It was argued that there are contradictions in the testimonies of the prosecution witnesses regarding the timings as well as the persons found at the spot. While PW12 HC Satish & PW18A Inspector Keshav Kumar categorically stated that during the period for which they remained at the flat, none of the neighborers came to the spot, PW17 stated that he cannot say how many people had gathered at the spot when he reached there. PW2 on the other hand says that apart from police officials 45 persons were present at the spot. This persons, however, could not tell the age of those public persons. PW14 says that there were 12 ladies and 34 FIR No.507/09 PS. Mandawali Page 47 of 55 St. Vs. Shivji Singh gents including Mukesh Gupta present at the spot. PW 14 Mukesh Gupta is the care taker of the house, he having been called at the spot after the finding of dead body is probable. This witness and PW 2 came at the spot later on and were not there since beginning. PW14 says that there were many persons in the gali but the IO did not record the statement of any person. From the two answers that he gave it is not clear whether he was speaking about the spot or the gali, when he spoke about the presence of public persons. The incident was of a closed flat, the three witnesses of investigation have categorically said that there was no one near the flat when it was got opened. The witnesses of investigation thus have stood with each other that there were no public person at the spot. The persons, who came later on i.e. PW2 & 14 were not deposing about the presence of public persons at the time of opening of the door by the accused and finding of the dead body as well as the weapons of offence. Both PW18A and PW12 categorically said that IO i.e. PW 18A had tried to make enquiry from the neighbours.
39. There is as such not the contradiction of the nature as would be termed fatal to the case of prosecution considering the nature of testimonies given by the witnesses.
FIR No.507/09 PS. Mandawali Page 48 of 55 St. Vs. Shivji Singh
40. It was argued that there were contradictions regarding presence of Amar Singh at the place of incident as claimed by the IO. IO had stated that after seizing the case property including the clothes of the accused, he had recorded the statement of one Amar Singh, who had informed the police and had come to the spot. PW 17 says that he had seen Amar Singh present at the spot on that day, however, could not tell the time when he saw him. PW14 stated that Amar Singh the witness of the case had given his statement to the IO on 07.10.09 in the gali. PW12 HC Satish, however, stated that he did not see Amar Singh at any time. Three witnesses have given consistent statements that Amar Singh was found in the gali and his statement was recorded. The confusion of one witness on the aspect cannot be considered over the statements of these three witnesses. Moreover PW Asha, the grand mother of the deceased stated that she was informed by Amar Singh about the death of her grand daughter on 07/10/2009 at about 09:30 pm and he had made him talk to the police also on telephone. The police had stated to her that they have caught the murderer. The presence of the Amar Singh and apprehension of the offender at around 09:30 PM thus stands corroborated by the evidence of an FIR No.507/09 PS. Mandawali Page 49 of 55 St. Vs. Shivji Singh independent witness also.
The contradictions as such, are not so material as would lead to the conclusion that the case of the prosecution is completely untrustworthy.
41. After holding as above that there is sufficient evidence on record to conclude that the accused was involved in the commission of offence, it would be imperative to pen down certain aspects which remained inconclusive. Postmortem report says that the deceased had a fisher on her anal region. The vaginal swab of the prosecutrix was found containing semen. The semen, however, could not be connected with the accused as he could not give his semen despite efforts. The doctor concerned however has not categorically stated that he was incapable of having sexual intercourse.
In view of above, no finding can be given by the court on whether or not the deceased was sexually assaulted by the accused before being murdered.
42. In view of above, the evidence on record is sufficient to FIR No.507/09 PS. Mandawali Page 50 of 55 St. Vs. Shivji Singh conclude that the accused committed murder of the deceased. He is accordingly convicted u/s. 302 IPC. Let he be heard on the point of sentence.
Announced in the open court on 29.04.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/29.04.14 FIR No.507/09 PS. Mandawali Page 51 of 55 St. Vs. Shivji Singh IN THE COURT OF MS. ANURADHA SHUKLA BHARDWAJ ASJ02 (EAST), SPL. JUDGE, NDPS KKD COURTS, DELHI Unique ID No. 02402R0379792009 Sessions Case No.06/12 State v/s. (1) Shivji Singh, S/o. Ram Singhasan Singh R/o. Vill. Katiknar, PS. Nawan Nagar, Distt. Buxur, Bihar.
FIR No. 507/09 PS. Mandawali U/s. 302 IPC Pr: Sh. R.K.Khandelwal, Ld. Addl. PP for the State.
Convict produced from JC.
Sh. Pankaj Bhushan, Ld. Amicus Curiae for the convict. ORDER ON SENTENCE:
1. The accused has been convicted by order/judgment of this court dt. 29.04.14.
2. Heard on point of sentence.
FIR No.507/09 PS. Mandawali Page 52 of 55 St. Vs. Shivji Singh
3. Ld. Counsel for the convict has argued that convict is the only bread earner of his family. He is an extremely poor person. It has further been contended that offence was committed in a spur of moment and nothing was preplanned and therefore, the offence does not fall within the ambit of rarest of rare case and that a lenient view should be taken.
4. Ld. Addl. PP on the other hand argued that there are five other cases pending against the accused, all cases but one are u/s. 302 IPC, the only other case is also u/s. 396 IPC, which are pending trial in different courts of Bihar. He has further argued that the offence was committed in brutal manner and that maximum punishment should be awarded.
5. Section 302 IPC prescribes that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.
6. Every murder is a heinous crime. Apart from personal implications, it is also a crime against the society but in every case of murder death penalty is not to be awarded. It has been propounded by the apex court time and again that for the offence of murder, life FIR No.507/09 PS. Mandawali Page 53 of 55 St. Vs. Shivji Singh imprisonment is a general rule while death sentence is an exception. The Supreme Court has given certain guidelines in cases enlisted below to ascertain as which case falls in the category of rarest of rare case.
(i) Bachan Singh Vs State of Punjab AIR 1980 SC 898
(ii) Machi Singh Vs State of Punjab (1983) 4 SCC 470.
7. I have gone through the findings of the apex court given in both of these cases. Though the accused is involved in five other similar cases, he has not been convicted in any other case yet. In my opinion the case in hands does not fall within the category of rarest of rare case.
8. Keeping in view the facts and circumstances of the case, I am of the opinion that the ends of justice would be subserved if the convict is sentenced U/s. 302 IPC to Rigorous Imprisonment for life and also to pay a fine of Rs. 50,000/ in default of payment of fine to further undergo SI for one year.
9. The period of detention already undergone by him during investigation, inquiry or trial may be set off against the sentence awarded in this case, in view of section 428 Cr.PC, wherever applicable for FIR No.507/09 PS. Mandawali Page 54 of 55 St. Vs. Shivji Singh computation of period of custody.
10. A copy of this order as well as of judgment be given to convict free of cost. Copy be also sent to Jail Superintendent for information and necessary action.
Announced in the open court on 02.05.14 (ANURADHA SHUKLA BHARDWAJ) ASJ02, (EAST) KKD COURTS/DELHI/02.05.14 FIR No.507/09 PS. Mandawali Page 55 of 55 St. Vs. Shivji Singh