Delhi District Court
State vs . on 24 May, 2013
1
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE 2, NORTH DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 181/09
FIR No. : 797/05
P.S. : Prashant Vihar
U/s : 302/392/411/34 IPC
& 25 Arms Act.
Date of registration : 16012006
Reserved for Judgment on: 13052013
Judgment Announced on : 24052013
State
Vs.
1. Jaipal Singh S/o Sh. Inder Pal Singh
R/o Village Pati Kara,
District Firozabad (U.P.)
2. Radhey Shyam S/o Sh. Mata Prasad
R/o Village Patikra, P.S. Jasrana,
District Firozabad (U.P.)
JUDGMENT
1. Briefly stated the present case was registered on the statement of complainant Puneet Vasudeva who is the son of Sessions Case No. : 181/09 Page 1 of 44 2 deceased Promila Vasudeva. As per the complainant he was employed as computer engineer in Second Foundation Company at Chandigarh and on 02092005 he came to his house in the evening. According to the complainant, accused Jaipal Singh had been ironing the clothes in their society prior to 56 months from the date of the incident i.e. 05092005 and he used to come to take clothes from the flat of Promila Vasudeva (since deceased) According to the complainant on 05092005, in the morning accused Jaipal came to their house and on the instructions of his mother (deceased) complainant gave clothes for ironing to Jaipal and thereafter complainant dropped his mother at her office at I.T.O. and after dropping her there, he went to Noida. In the evening complainant picked his mother (deceased) from her office and came back to the house and while coming back, her mother met accused Jaipal and asked him to deliver the ironed clothes at home to which he consented.
2. As per the complainant thereafter, at about 7 p.m he alongwith his father Shyam Sunder Vasudeva left the house and he took his father Shyam Sunder Vasudeva to Sai Baba Temple in Sector7 Rohini, Delhi. They returned to the society at 7:30 p.m and found accused Jaipal was not at the place where he Sessions Case No. : 181/09 Page 2 of 44 3 used to iron the clothes. After parking the car the complainant proceeded towards his flat and was followed by his father who was walking slowly towards the flat.
3. According to the complainant after reaching the flat when the complainant knocked at the door, no one responded. He rang the door bell but there was no response so he went to the main gate of the society from where he used the society intercom facility and called at the intercom in the flat which was also not answered. Thereafter, when the complainant reached at his flat he saw a boy walking with fast steps and he was perplexed. Complainant asked him as to whether he was coming from their flat on which he replied that "he came to the press wala" and pointed towards accused Jaipal Singh who was coming down stairs and was bare feet and was also perplexed. When the complainant stopped him, he did not reply and rushed away.
4. According to the complainant when he reached the main door of the flat he found blue colour chappals lying outside the door which the complainant had seen Jaipal wearing in the morning when he had come to take the clothes. On suspicion complainant rushed towards the upper gate of the duplex flat and found that the door thereof was open which was not usually Sessions Case No. : 181/09 Page 3 of 44 4 used by the family. After entering the house the complainant found that the articles of bed room were all disturbed and he could not find his mother in the flat despite search. Finally he found his mother inside the bed box where her body was lying. Blood was oozing out of the nose and mouth of her mother. The complainant opened the man door of the flat and called his father inside and with his help took out the body of his mother from the bed box. A plastic rope was found tied around the neck of his mother and complainant with the help of his neighbour Mr. Gambhir took his mother in the car of Mr. Gambhir to Saroj Hospital and threw the rope which was tied around the neck of his mother in the society. At the hospital doctors declared his mother dead.
5. According to the complainant Jaipal used to take Rs. 500/ or Rs. 1000/ from his mother on account of his domestic problems and the place where the mother of the complainant used to keep money was known to Jaipal. According to the complainant cash, chain of his mother and gold were found missing from the flat.
6. F.I.R. bearing No. 797/05 was registered at P.S. Prashant Vihar and investigation went underway. Both the Sessions Case No. : 181/09 Page 4 of 44 5 accused were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
7. On 07112007, a charge U/s 120B IPC and U/s 302/392/201 IPC read with section 120B IPC and a separate charge U/s 411 IPC was framed against accused Jaipal to which he pleaded not guilty and claimed trial. Further on 23092009, a charge U/s 120B IPC and U/s 302/392/201 IPC read with section 120B IPC and a separate charge U/s 411 IPC was framed against accused Radhey Shyam to which he pleaded not guilty and claimed trial.
8. In order to prove the guilt of the accused, the prosecution examined as many as 22 witnesses.
9. PW 1 Puneet Vasudeva (complainant) and PW 6 Shri Sham Sunder Vasudeva (father of the complainant) are the most material witnesses and I will discuss their testimony in the later part of the judgment.
10. PW 2 Ct. Dalbir Singh is the photographer. He had taken 20 photographs related to this case and proved the same on record as Ex. PW 2/A1 to A19 and the negatives as Ex.PW Sessions Case No. : 181/09 Page 5 of 44 6 2/B1 to B20.
11. PW 3 H.C. Tasvir Singh is the duty officer. He proved on record the carbon copy of the FIR as Ex. PW 3/A. He also proved on record the true copy of DD No. 31 A dated 592005 as Ex. PW 3/B and copy of DD No. 2 A dated 692005 as Ex. PW 3/C and copy of DD No. 27 A as Ex. PW 3/D.
12. PW 4 is Baldev Raj Gambir in whose Maruti 800 DL 2 CK 1208, on 5092005, complainant removed his mother to Saroj Hospital alongwith his father and PW 4 Baldev Raj Gambhir. PW 4 also deposed that he saw some blood marks on face, neck etc. of the deceased.
13. PW 5 Rajesh Sahni is one of the resident of the society where the incident took place. He deposed that on 592005, after coming to know about the murder of the deceased at house No. 54, he visited the said house. He identified accused Jaipal and deposed that he used to come to collect clothes from his house for ironing. He deposed that on that night when he visited the house No. 54, he saw that a pair of plastic chappal blue in colour were lying at the entry door at the house where the incident took place. He immediately identified the said pair of chappal to be that of accused and he conveyed the said Sessions Case No. : 181/09 Page 6 of 44 7 information to the police regarding the identity of the said chappals. He further deposed that he was aware of the said chappal being of accused as he used to remove his chappal outside his house as and when he used to come to his house. Police seized the chappal vide seizure memo Ex. PW 1/H. PW 5 identified the chappal as Ex. P7.
14. PW 7 SI Manohar Lal is the draftsman. He prepared the scaled site plan of the place of occurrence and proved the same as Ex. PW 7/A.
15. PW 8 Jai Vir Singh deposed that accused Radhey Shyam @ Ramu is his brotherinlaw. He further proved seizure memo of mobile phone No 9811669671 make Motorola as Ex. PW 8/A. Witness correctly identified the mobile phone which was in possession of Radhey Shyam @ Ramu in the morning of 592005, and was seized by the police from him. Mobile phone is Ex. P1.
16. PW 9 Ishwar Singh Sharma deposed that he was running STD/PCO booth at H. No. 215, Rithala, Delhi since 2004 and now he had closed his said booth in January, 2009. He could not tell the number of said connections which were from Tata & Vodaphone. He further deposed that he had searched Sessions Case No. : 181/09 Page 7 of 44 8 the record but the same was not available.
17. PW 10 Dr. Akhil Vohra proved his report as Ex. PW 10/A vide which he declared the patient Promilla Vasudeva (since deceased) as brought dead at Saroj Hospital on 592005.
18. PW 11 constable Ravinder took the exhibits of this case vide RC No. 104/21 and 105/21 and deposited the same in FSL Rohini.
19. PW 12 Sonu Singh deposed that he was serving in STD booth, which was being run by Nitin at premises No. D14/61, Sector7, Rohini, since the year 2002. He further deposed that on 892005, he was present in the STD booth when police alongwith accused Jai Pal (present in the Court) came to the booth and in his presence accused told the police that he had made a call in his presence from the booth to some lady. The IO prepared pointing out memo as Ex. PW 12/A which bears his signature at point A.
20. PW 13 is constable Suresh Kumar who on the night intervening 5/6092005 was posted as constable at PS Prashant Vihar. In his presence IO obtained the MLC of deceased Promila Vasudev upon which Dr. made endorsement as brought dead. He was handed over the dead body of Promila Vasudev by Sessions Case No. : 181/09 Page 8 of 44 9 the IO and he took the dead body to mortuary BJRM hospital. He remained in BJRM hospital till night where the dead body was got preserved by him. He deposed that on the next day at about 10 a.m Inspector Ram Mehar came to the mortuary and upon his request the postmortem on the dead body of deceased was conducted and after the postmortem the dead body was handed over to relatives of deceased. He further deposed that after postmortem the autopsy surgeon handed over to him one sealed parcel and one envelope sealed with the seal of hospital which he handed over to IO which was seized by him vide seizure memo Ex. PW 13/A.
21. PW 14 Inspector S.P. Vashisht is the incharge Mobile crime team. On 5092005, he inspected the place of occurrence and the photographer took the photographs from different angles. He deposed that no chance prints were found at the spot. He proved on record his crime team report as Ex. PW 14/A.
22. PW 15 is Dr. Upender Kishore. He conducted the postmortem on the dead body of Promilla Vasudeva. He proved on record his detail P.M. report as Ex. PW 15/A. He also gave subsequent opinion and proved on record the same as Ex. PW 15/B. He deposed that after going through the PM No. 691/05 Sessions Case No. : 181/09 Page 9 of 44 10 dated 6905, conducted on the body of Poromila Vasudeva and the examination of rope produced, the ligature mark present on the neck of the victim could be possible with the rope produced or a similar one. On seeing the plastic rope (nylon) pinkish colour produced by the MHC(M) in a sealed pullanda, PW 15 deposed that it was not the same rope which was produced by the SHO.
23. PW 16 H.C. Shiv Charan is the MHC(M). He proved on record the relevant entries made by him in register No. 19 at serial No. 2045, 2048 and 2049 as Ex. PW 16/A. He also proved on record the copy of RC No. 104/21/2005 & 105/21/2005 as Ex. PW 16/B and Ex. PW 16/C respectively and acknowledgments of the same as Ex. PW 16/D and Ex. PW 16/E respectively.
24. PW 17 is SI Sudama Sharma who on 19102005, moved an application before the court concerned for conducting the TIP of case property which was fixed by the then Ld. Link MM of court concerned for 24102005. He further deposed that on 24102005, he received two sealed parcels sealed with the seal of DK from MHC(M) and reached at Tis Hazari court and case property was got identified from Sunil Vasudeva and he received the copy of TIP proceedings and case property was again Sessions Case No. : 181/09 Page 10 of 44 11 resealed with the seal of GS and deposited in the malkhana. He proved on record his request for seeking date of TIP as Ex. PW 17/A and request for supplying the copy of TIP proceedings as Ex. PW 17/B. He also proved the TIP proceedings as Ex. PW 17/C.
25. PW 18 Ms. Archana Sinha, ADJ, Central, Tis Hazari Courts, Delhi conducted the TIP proceedings of accused Radhey Shyam at Tihar Jail on 12092005. Accused refused to participate in TIP. He was warned that adverse inference can be drawn against him. She proved on record the TIP proceedings as Ex. PW 18/A. Her endorsement on the application for seeking the date for TIP as Ex. PW 18/B and her endorsement regarding supplying the copy to IO as Ex. PW 18/C.
26. PW 19 retired SI Daya Kishan remained associated with the IO of the case during the investigation and he disclosed about the sequence of investigation done by the IO in his presence. He proved on record arrest memo of accused Jaipal as Ex. PW 19/A, his personal search memo as Ex. PW 19/B, his disclosure statement as Ex. PW 19/C, seizure memo of Rs. 735/ handed over by accused Jaipal to SHO as Ex. PW 19/D, seizure memo of gold chain recovered from the right pocket of accused Jaipal as Sessions Case No. : 181/09 Page 11 of 44 12 Ex. PW 19/E, pointing out memo of the spot prepared at the instance of accused Jaipal as Ex. PW 19/F, seizure memo of clothes of accused Jaipal which he was wearing at the time of the incident as Ex. PW 19/G, disclosure statement of accused Radhey Shyam @ Ramu as Ex. PW 19/H, arrest memo of accused Radhey Shyam as Ex. PW 19/J, his personal search memo as Ex. PW 19/K, seizure memo of 4 wrist watches recovered at the instance of accused Radhey Shyam as Ex. PW 19/L and seizure memo of one shirt with label of RK tailors and one pant of matmaila colour recovered at the instance of accused Radhey Shyam as Ex. PW 19/M. PW 19 identified the accused and the case property.
27. PW 20 Sh. Gurdeep Singh is the Addl. Sessions Judge, Karkardooma Court, Delhi. He conducted the TIP of the case property. He proved on record the application moved by the IO for conducting the TIP as Ex. PW 17/A, his endorsement vide which he allowed the application Ex. PW 17/A as Ex. PW 20/A. He deposed that he conducted the TIP proceedings of the articles which is Ex. P1/X. He further deposed that after completion of TIP proceedings on the request of the IO the copy was supplied to him vide his endorsement Ex. PW 20/B. Sessions Case No. : 181/09 Page 12 of 44 13
28. PW 21 is ASI H. Rehman who on receiving the information regarding hanging of Promila (since deceased) who had been brought to Saroj Hospital on 592005, filled the requisite PCR form. He proved the photocopy of the same as Ex. PW 21/A.
29. PW 22 Inspector Ram Mehar is the IO of the case. He unfolded the sequence of investigation done by him. He proved on record pointing out memo of the STD booth pointed out by accused Radhey Shyam as Ex. PW 22/X1; application for TIP of accused Radhey Shyam as Ex. PW 22/PX2 and FSL report as Ex. PW 22/PX3.
30. After the closing of the prosecution evidence statement of both the accused U/s 313 Cr.P.C was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated. No evidence in defence was led by the accused Radhey Shyam but accused Jaipal Singh led his defence evidence and examined one Bhagwan Dass as DW 1.
31. The following documents have been proved on record by the prosecution :
Sessions Case No. : 181/09 Page 13 of 44 14
Date of Sl. Exhibit No. Nature of Document Proved by Execution
1. EX. PW1/A Rukka 05.09.2005 Puneet Vasudeva
2. EX. PW1/B Seizure memo plastic rope 06.09.2005 Puneet Vasudeva
3. EX. PW1/C Seizure memo towel blood stain 06.09.2005 Puneet Vasudeva Seizure memo piece of carpet
4. EX. PW1/D 06.09.2005 Puneet Vasudeva blood stains
5. EX. PW1/E Seizure memo piece of carpet 06.09.2005 Puneet Vasudeva Seizure memo blood stain piece
6. EX. PW1/F 06.09.2005 Puneet Vasudeva of ply Seizure memo piece of sampal
7. EX. PW1/G 06.09.2005 Puneet Vasudeva ply
8. EX. PW1/H Seizure memo chappals 06.09.2005 Puneet Vasudeva Statement dead body
9. EX. PW1/I 06.09.2005 Puneet Vasudeva Identification
10. EX. PW1/J Receipt hand over dead body 06.09.2005 Puneet Vasudeva
11. EX. PW1/K Sketch of katta and cartridges 07.09.2005 Puneet Vasudeva Seizure memo of katta and
12. EX. PW1/L 07.09.2005 Puneet Vasudeva Cartridges Identification proceedings wrist
13. EX. PW1/X1 07.09.2005 Puneet Vasudeva watch and the gold chain EX. PW2/A1
14. Photographs Ct. Dalbir Singh to A19 EX. PW2/A1
15. Negatives 05.09.2005 Ct. Dalbir Singh to A20
16. EX. PW3/A Copy of FIR 05.09.2005 HC Tasvir Singh
17. EX. PW3/B DD entry 31(A) 05.09.2005 HC Tasvir Singh
18. EX. PW3/C DD entry 2(A) 05.09.2005 HC Tasvir Singh
19. EX. PW3/D DD entry 27(A) 05.09.2005 HC Tasvir Singh Sessions Case No. : 181/09 Page 14 of 44 15
20. EX. PW7/A Site plan scaled 13.11.2005 SI Manohar lal Seizure memo of mobile phone
21. EX. PW8/A 08.09.2005 Jaivir Singh 9811669671 Motorola
22. EX. PW10/A MLC (Promila vasudeva) 05.09.2013 Dr. Akhil Vohra Seizure memo pointing(Jaipal)
23. EX. PW12/A 08.09.2005 Sonu Singh out STD booth
24. EX. PW13/A Seizure memo cloths 06.09.2005 Ct. Suresh
25. EX. PW14/A Crime team report 05.09.2005 Insp. S.P.Vashisht
26. EX. PW15/A P.M. Report 06.09.2005 Dr. Upender Kishore
27. EX. PW15/B Subsequent Opinion on rope 12.11.2005 Dr. Upender Kishore
28. EX. PW16/A Copy of store room register 08.09.2005 HC Shiv Charan
29. EX. PW16/B Copy of Road certificate 08.09.2005 HC Shiv Charan
30. EX. PW16/C Copy of Road certificate 08.09.2005 HC Shiv Charan
31. EX. PW16/D Acknowledgment of Pulanda 08.09.2005 HC Shiv Charan
32. EX. PW16/E Acknowledgment of pulanda 08.09.2005 HC Shiv Charan
33. EX. PW17/A Application for fixing date of TIP 19.10.2005 SI Sudama Sharma Application for suppling copy of
34. EX. PW17/B 24.10.2005 SI Sudama Sharma TIP
35. EX. PW17/C TIP 24.10.2005 SI Sudama Sharma
36. EX. PW18/A TIP of accused Radhey Shyam 12.09.2005 SI Sudama Sharma
37. EX. PW18/B Application for fixing date of TIP 08.09.2005 SI Sudama Sharma Application regarding supplying
38. EX. PW18/C 12.09.2005 SI Sudama Sharma copy of TIP to IO
39. EX. PW19/A Arrest memo of Jaipal 07.09.2005 SI Daya Kishan
40. EX. PW19/B Personal search memo of Jaipal 07.09.2005 SI Daya Kishan
41. EX. PW19/C Disclosure statement Jaipal 07.09.2005 SI Daya Kishan Seizure memo of recovery
42. EX. PW19/D 07.09.2005 SI Daya Kishan amount
43. EX. PW19/E Seizure memo gold chain 07.09.2005 SI Daya Kishan Sessions Case No. : 181/09 Page 15 of 44 16
44. EX. PW19/F Pointing out memo Jaipal 07.09.2005 SI Daya Kishan Seizure memo TShirt and Pant
45. EX. PW19/G 07.09.2005 SI Daya Kishan (Jaipal) Disclosure statement of Radhey
46. EX. PW19/H 08.09.2005 SI Daya Kishan Shyajm
47. EX. PW19/J Arrest memo Radhey Shyam 08.09.2005 SI Daya Kishan Personal search memo Radhey
48. EX. PW19/K 08.09.2005 SI Daya Kishan shyam Seizure memo four watches
49. EX. PW19/L 08.09.2005 SI Daya Kishan recovery Seizure memo pant and shirt
50. EX. PW19/M 08.09.2005 SI Daya Kishan (Radhey Shyam) Application for fixing date for
51. EX. PW20/A 19.10.2005 Sh. Gurdeep Singh TIP Application for supplying copy of
52. EX. PW20/B 24.10.2005 SH. Gurdeep Singh TIP
53. EX. PW21/A PCR Form 05.09.2005 ASI H. Remman Insp. Ram Mehar
54. EX. PW22/A Rukka 05.09.2005 Singh Insp. Ram Mehar
55. EX. PW22/B Site Plan (Rough) 06.09.2005 Singh Insp. Ram Mehar
56. EX. PW22/C Inquest Proceeding 06.09.2005 Singh EX. Insp. Ram Mehar
57. Pointing out memo STD Booth 08.09.2005 PW22/X1 Singh EX. Application for fixing date for Insp. Ram Mehar
58. 08.09.2005 PW22/PX2 TIP Singh EX. Insp. Ram Mehar
59. FSL report 31.03.2006 PW22/PX3 Singh EX. Application for seek opinion on Insp. Ram Mehar
60. 12.11.2005 PW22/PX4 rope Singh Sessions Case No. : 181/09 Page 16 of 44 17 61 PX4 FSL report 24.07.2006
62. PX5 Sanction U/S 39 A.Act 07.11.2006
32. I have heard Ld. Addl. PP for the State and Ms. Bindiya Malhotra, Ld Amicus Curiae for the accused persons and have also gone through the records of the case.
33. It is submitted by the Ld. Addl. PP for the State that on the basis of the evidence recorded and the material available on record accused persons be convicted. He further submitted that accused Jaipal was working as press man in the society and he was a regular visitor to the house of the deceased and was aware about the entire in and out of her house. It is further submitted by the Ld. Addl. PP that all the circumstances, points towards the guilt of the accused and they have been conclusively proved. It is further submitted by the Ld. Addl. PP that the recoveries of the robbed articles were effected from the accused persons within 2 days of the incident and a presumption can be raised against them U/s 114 (A) of the evidence Act.
34. On the other hand, it is submitted by the Ld. Amicus Curiae for the accused persons that they have been falsely implicated; recoveries are doubtful and there are contradictions in the testimony of PW 1 Puneet Vasudeva (complainant) and Sessions Case No. : 181/09 Page 17 of 44 18 PW 6 Shri Sham Sunder Vasudeva (father of the complainant) regarding the presence of accused Radhey Shyam in the stairs.
35. In the present case, there is no eye witness to the murder. The case rests on circumstantial evidence and now it is to be seen whether the evidence collected by the prosecution, unerringly points towards the guilt of the accused persons and whether the prosecution has been able to prove that it was the accused persons and none else who had committed the murder.
36. The first point for consideration is whether the accused Jaipal used to iron the clothes in Mahadev Kunj Society where the deceased used to live : PW 1 is Puneet Vasudeva who is the son of the deceased has stated that his mother Smt. Promilla Vasudeva (since deceased) was working as a Section Officer in U.G.C. He has also deposed that accused Jaipal used to iron the clothes in the society and on the day of the incident i.e on 592005 he had come to their house and he had handed over 4 curtains, one pant and few clothes to accused Jaipal on the direction of his mother. He further deposed that when in the evening he alongwith his mother was passing by the side of the accused, his mother asked him to deliver the clothes to which accused replied that he would deliver the clothes after some Sessions Case No. : 181/09 Page 18 of 44 19 time. This witness was cross examined but there is nothing in the cross examination of this witness to belie that the accused was not working as a press man in the society. There is not even a suggestion to the effect that the accused Jaipal was not working as a press man in the society.
37. The next witness who has corroborated the testimony of PW 1 regarding the working of accused Jaipal in the society as press man is PW 5 Sh. Rajesh Saini who is one of the other resident of the society. He deposed that accused Jaipal used to come to collect clothes from his house for ironing.
38. PW 5 was cross examined but there is nothing in his cross examination to suggest that accused was not working as press man in the society. There is not even a suggestion to this effect to this witness.
39. PW 6 is Shyam Sunder Vasudeva who is the father of PW 1. He has also corroborated the testimony of PW 1 and PW 5 regarding the working of accused Jaipal as a pressman in the society. This witness was cross examined but nothing material came out from his cross examination to discredit his testimony with regard to the working of accused Jaipal as a press man in the society.
Sessions Case No. : 181/09 Page 19 of 44 20
40. Accused Jaipal was examined U/s 313 Cr.P.C and in his statement he has stated in the answers to the questions put to him as incorrect and I do not know, and no explanation is coming fourth.
41. So looking into the testimony of the witnesses and the reply given by the accused in his statement U/s 313 Cr.P.C it can be safely held that on the day of the incident accused Jaipal was working as a pressman in the society and he used to collect clothes form the house of the residents living in the said society.
42. The next point for consideration is whether on the day of the incident accused Jaipal visited the house of the deceased to collect the clothes for ironing and whether in the evening at about 7:30 p.m accused Jaipal and accused Radhey Shyam were seeing coming from the stair case of the house of the deceased : Again the relevant witnesses to prove this fact are PW 1 and PW 6. PW 1 in his testimony has categorically deposed that on 592005, he had handed over certain clothes to accused Jaipal for ironing. Thereafter he alongwith his mother left the house in a car at 9 a.m. He further deposed that in the evening he had picked his mother from her office at about 4:30 p.m and his mother asked accused Jaipal to deliver the clothes Sessions Case No. : 181/09 Page 20 of 44 21 which were given to him in the morning. He has further deposed that at about 7 p.m he left the house alongwith his father i.e PW 6 and went to temple in Sector 7. He further deposed that his mother was alone in the house when he alongwith his father left for the temple. He further deposed that when he returned with his father he knocked the main gate of his house at about 7:30 p.m but none responded. So PW 1 went to the main gate of the society and tried to contact his house from the intercom. But none responded. So he proceeded for his residence from the main gate of the society. He deposed that he found a boy in nervous condition on the last stair of the building in which his flat was situated. He made inquiries form him and the said boy informed PW 1 that he was with the person who do ironing work in the society complex and pointed towards accused Jaipal who was coming down from the stairs.
43. He further deposed that he asked accused Jaipal as to whether he was coming from his house but Jaipal did not respond. PW 1 went to the second floor of the duplex flat and found it open much to his surprise because the said door used to remain close. This witness correctly identified accused Jaipal and accused Radhey Shyam in the Court. (Accused persons Sessions Case No. : 181/09 Page 21 of 44 22 have refused TIP.)
44. The other witness who saw both the accused near their house is PW 6 who is the father of PW 1 and husband of the deceased. He has corroborated the testimony of PW 1 regarding going to the temple at about 7:00 p.m leaving his wife Promilla (since deceased ) in the house and returning from the temple at about 7:30 p.m. He has deposed that he saw two boys rushing down from the second floor in perturbed condition. He further deposed that one of the accused was known to him and he was Jaipal whom he correctly identified.
45. Now as far as the identity of accused Jaipal is concerned, there is no dispute as he was the pressman of the society. This witness deposed that the second boy who was coming down from the second floor is not present in the Court. This witness was afforded an opportunity by the Court to see every body present there and was asked to identify if the second boy was there or not. This witness after seeing every body in the Court denied about the presence of the second boy i.e accused Radhey Shyam.
46. This witness was cross examined by the Ld APP for the State regarding the identity of accused Radhey Shyam. Ld. APP Sessions Case No. : 181/09 Page 22 of 44 23 drew the attention of this witness towards accused Radhey Shyam and on the asking of the Ld. APP he again stated that accused Radhey Shyam was not the boy who was present with accused Jaipal. He denied the suggestion that he was not identifying accused Radhey Shaym due to lapse of time.
47. Now Ld. Amicus Curiae for accused Radhey Shyam vehemently argued that since PW 6 has failed to identify the accused Radhey Shyam so benefit of doubt should be given to him. It was submitted by the Ld. APP that no benefit can be given to coaccused Radhey Sjhyam because he has refused to participate in the TIP.
48. Ld. APP has further submitted that PW 6 Shyam Sunder never stated in his statement U/s 161 Cr.P.C that he could identify coaccused Radhey Shyam rather he stated that he could not identify the other boy because of his weak eyesight. So none identification by PW 6 of accused Radhey Shyam in the Court is of no consequence.
49. PW 1 has clearly identified accused Radhey Shyam as the boy who was coming ahead of accused Jaipal. Accused Radhey Shyam has refused to participate in the TIP without any justifiable cause and in the cross examination not even a single Sessions Case No. : 181/09 Page 23 of 44 24 question has been asked from any witnesses by the defence which could suggest that Radhey Shyam was shown to them prior to the conducting of the TIP.
50. PW 6 Shyam Sunder has talked about two boys and he identified accused Jaipal because he was a regular visitor to their house and used to take clothes for ironing. As far as co accused Radhey Shyam is concerned PW 6 has only talked about (one Anjan Ladka) in his statement U/s 161 Cr.P.C. He has never stated in his statement U/s 161 Cr.P.C that he could identify the said boy rather he had stated that due to his weak eyesight he could not see the face of coaccused.
51. Now when this was the statement of PW 6 given to the police, I am really surprised why the Ld. APP declared this witness hostile regarding the identity of coaccused Radhey Shyam and unnecessarily tried to get the coaccused Radhey Shyam identified from this witness. Rather the Ld. APP went ahead and gave the suggestion that due to passage of time PW 6 was unable to identify the accused Radhey Shyam. This exercise done by the Ld. APP was a futile exercise and far from the facts of this case. So in these circumstances, the identity of coaccused Radhey Shyam could not be disputed, Sessions Case No. : 181/09 Page 24 of 44 25 when the testimony of PW 1 has been found to be trustworthy on the point of identification. Moreover, accused Radhey Shyam has refused to join the TIP and has vaguely replied to the questions put to him U/s 313 Cr.P.C with no specific replies.
52. It was also argued by the Ld. Amicus Curie that both the witnesses are closely related to the deceased and their evidence cannot be relied upon. Every criminal case revolves around its own facts. In the present case PW 1 and PW 6 were there outside the flat at the time when both the accused persons came rushing down from the second floor. The testimony of the related witnesses if reliable cannot be thrown out only for the reasons that they are related to the deceased. It is also a see that most of the time public persons are reluctant to join as witnesses. Now coming to the facts of the present case, it was only PW 1 and PW 6 who have only seen the accused persons coming down from the house. Reliance can be placed upon : State of Rajasthan Vs. Arjun Singh 2011 (9) SCC 113; Vijay Kumar Vs. State 2009 (12) SCC 629 and Anand Reddy Vs. State of A.P. 2009 (12) SCC 546.
53. RECOVERIES : The accused made their disclosure statements, on the basis of which various recoveries were Sessions Case No. : 181/09 Page 25 of 44 26 made. Accused Jaipal was arrested and he made a disclosure statement Ex. PW 19/C. The accused was searched and from his right pocket one gold chain of 45 tola was recovered which was seized vide memo Ex. PW 19/E. Thereafter accused took the police party in front of flat No. 11 in between Mahadev Kunj Society and Ashoka Apartment and pointed towards the bushes where he had hidden the country made pistol. The accused took out the pistol and three live cartridges which were seized vide memo Ex. PW 1/L. The accused also got recovered his T shirt and Pant which he was wearing at the time of the incident which was seized vide memo Ex. PW 19/G. According to the prosecution the gold chain recovered from the accused was put for TIP and PW 1 correctly identified the gold chain vide TIP proceedings Ex. PW 1/X.
54. PW 19 is SI Daya Kishan who is the witness to the recovery of the gold chain. His testimony has been corroborated by IO PW Ram Mehar who has been examined as PW 22. PW 19 was cross examined on behalf of accused Jaipal but nothing material could be extracted from his cross examination. Similarly PW 22 who is the IO of the case was also cross examined on behalf of accused Jaipal to discredit the recovery of the gold Sessions Case No. : 181/09 Page 26 of 44 27 chain from him but both the witnesses stood the cross examination done by the Ld Amicus Curiae.
55. It was argued by the Ld amicus curiae for the accused that no public witness was joined by the IO which makes the recovery doubtful. It is not always that non joining of public witnesses makes the recovery doubtful. The testimony of the official witnesses of recovery cannot be discarded merely on the ground of non joining of public witnesses. Both the witnesses corroborated each other's testimony and as already observed above there is nothing in their cross examination to discredit the recovery of gold chain.
56. The accused was examined U/s 313 Cr.P.C and the accused has simply denied the incriminating evidence put to him without giving any explanation. Therefore, so far as the recovery of gold chain pertaining to the deceased at the instance of accused Jaipal, the same stands established beyond reasonable doubt.
57. The accused according to the prosecution also got recovered one pistol and three live cartridges. They were recovered vide memo Ex. PW 1/L witnessed by PW 1 Puneet, PW 19 SI Daya Kishan and PW 22 IO Inspector Rem Mehar. It is Sessions Case No. : 181/09 Page 27 of 44 28 the case of the prosecution that the pistol and the live cartridges were not used in the commission of the crime. All the three recovery witnesses have corroborated each other and there is nothing in their cross examination to discredit them. Nothing has been stated by the accused in his statement U/s 313 Cr.P.C regarding the alleged recovery as already observed herein above there are bare denial to the questions put to him U/s 313 Cr.P.C.
58. Now coming to the recoveries effected at the instance of coaccused Radhey Shyam. Coaccused Radhey Shyam also made his disclosure statement Ex. PW 19/H and he got recovered 4 stolen watches from the house of his Jeeja (brother inlaw).
59. PW 22 has deposed that after his arrest accused Radhey Shyam took them to the house of his Jeeja and he took out a Stephani of a scooter and a black colour bag which was lying underneath a thakat in the house of his Jeeja. Accused Radhey Shyam took out 4 watches after opening the Stephani . The watches were sealed and seized vide memo Ex. PW 19/N. From the black bag he took out a chekdar shirt and pant which according to him he was wearing at the time of the incident. PW 22 further deposed that at the time of the recovery Jaiveer Jeeja Sessions Case No. : 181/09 Page 28 of 44 29 of the accused was also present. The wrist watches were identified by PW 1 vide TIP proceedings Ex. PW 1/X.
60. This witness was cross examined and in his cross examination he stated that he tried to join the neighbours in the investigation but none agreed. It is a matter of common knowledge that the public witnesses seldom come forward to join the investigation and it is only the relatives of the deceased who come forward and join as a witness when asked by the IO, because they are the aggrieved party. So merely on the ground that the public witnesses have not joined the recovery proceedings cannot be a ground to disbelieve the official witnesses.
61. The other recovery witness of wrist watches is PW 19 who has also deposed that accused Radhey Shyam took them to the house of his sister and Jeeja and got recovered 4 wrist watches from the Stephani of the scooter which was lying under the thakat inside the house of his Jeeja. He further deposed that the Stephani was opened by the accused and he took out 4 wrist watches which were seized vide memo Ex. PW 19/L. He further deposed that accused also took out a black bag from underneath the thakat and took out his shirt and one pant which Sessions Case No. : 181/09 Page 29 of 44 30 were seized vide memo Ex. PW 19/M.
62. This witness was cross examined by the Ld counsel for the accused but he denied the suggestion that no recovery was effected at the instance of the accused. This accused was also examined U/s 313 Cr.P.C but he has also simply denied the incriminating evidence put to him without explaining any of the incriminating evidence which had appeared against him. Both the recovery witnesses for the sake of repetition have corroborated each other and nothing has come in their cross examination to discredit them. No doubt the prosecution has to stand on its own legs but it was at least expected of the accused to come out with some answerers and explanation about the recoveries in his statement U/s 313 Cr.P.C. At least he could have examined his brotherinlaw and sister, but that is not done for the reasons best known to him.
63. According to the prosecution, the accused got effected the recovery from the house of his sister and Jeeja but for the reasons best known to him the accused failed to examine his sister and Jeeja in his defence.
64. According to the prosecution Chhapal of accused Jaipal were recovered from the main gate of the house of the Sessions Case No. : 181/09 Page 30 of 44 31 deceased. PW 1 has deposed that on 592005, when accused Jaipal had come to their house he was wearing a pair of chappal which was later on found at the main gate after the incident. He identified the pair of chappal. The chappal has been exhibited as Ex. P7.
65. This witness was cross examined and in his cross examination he stated that he had not immediately informed any one in the society or to the police when he saw the chappal of accused Jaipal outside his flat. He denied the suggestion that the chappal could be of someone else. He further stated in his cross examination that the chappals were seized in his presence.
66. As far as the question of not informing the police immediately about the chappal is concerned, we have to keep in mind that the witness found his mother dead and in such a situation, lying of chappal outside his house and corelate the chappal with any of the accused at that particular point of time was not possible for him because the witness definitely must have been perturbed and his first concern must have been to somehow save his mother and to my mind the chappals etc. lying there must have been his least priority and only after getting composed, it is expected of a witness to ponder over the things Sessions Case No. : 181/09 Page 31 of 44 32 and the events which happened prior to the incident. There is not even a suggestion that the chappals did not belong to the accused.
67. PW 5 Rajesh Saini is the resident of the same society. He has deposed regarding the chappals, that he saw a pair of plastic chappals of blue colour lying at the entry door of the house where the incident took place and he immediately identified the said pair of chappals pertaining to accused Jaipal. He further deposed that he had conveyed the information to the police regarding the identity of the chappals. He further deposed that he was aware about the chappals pertaining to the accused because accused used to remove his chappals outside his house when he used to visit the house of the witness.
68. This witness has been cross examined and in his cross examination he categorically stated that the chappls Ex. P7 were found outside the main entrance of the flat in which the murder had taken place. This witness denied the suggestion that no chappals were seized in his presence or he had not seen the chappals outside the main door of the flat. He further stated in his cross examination that during the period when the incident had taken place it was accused Jaipal who used to come to his Sessions Case No. : 181/09 Page 32 of 44 33 house for taking the clothes.
69. Again incriminating questions regarding the recovery of the chappals were pout to the accused U/s 313 Cr.P.C but no explanation had come fourth and there is only a bare denial to the questions put to the accused relating to the chappals. Both PW 1 and PW 5 have categorically identified the chappals. As discussed above PW 5 has explained as to under what circumstances he could identify the chappals of the accused.
70. The seizure memo of the chappals which is Ex. PW 1/H has been witnessed by PW Rajesh Saini, PW Puneet Vasudeva, PW SI Daya Kishan and the IO. There is no discrepancy in the testimony of these witnesses regarding the lying of the chappals outside the flat where the incident took place. So the prosecution has been successfully able to prove that the pair of chappal Ex. P7 which were found outside the house of the deceased belonged to the accused Jaipal and there is no explanation coming fourth from the side of the accused in his statement U/s 313 Cr.P.C regarding the presence of the chappals and as to whether the chappals belongs to him or not.
71. RECOVERY OF ROPE, THE ALLEGED WEAPON OF OFFENCE.: According to the prosecution the deceased was Sessions Case No. : 181/09 Page 33 of 44 34 strangulated with a piece of rope. It is further submitted by the Ld Amicus Curiae for the accused persons that the evidence has been tempered with and the rope produced in the Court is not the same rope which was seized at the spot and its tempering shows that false case has been imposed upon the accused persons. The Ld. Amicus Curiae for the accused heavily relied on the testimony of PW 15 Dr. Upender Kishore who conducted the postmortem and gave the opinion regarding ligature material i.e rope. PW 15 gave the opinion that "the death in this case was due to asphyxia as a result of antemortem strangulation by ligature which is sufficient to cause death in ordinary course of nature".
72. PW 15 further deposed that he had given subsequent opinion on the request of the SHO on 12112005 alongwith sealed parcel sealed with the seal of R.S. in respect of P.M. No. 691/05 dated 6/9/05. The sealed parcel was opened and a Nylon pinkish colour rope was taken out. PW 15 then opined that "the ligature mark present on the neck of the victim could be possible with the rope produced or a similar one".
73. The plastic rope was produced by the MHC(M) in the sealed pullanda sealed with the Court seal and it was opened Sessions Case No. : 181/09 Page 34 of 44 35 and shown to the PW 15. He stated that the rope which was shown to him in the Court was not the same which was produced by the SHO. So a leading question was put by the Ld. APP which is as follows :
Q. I put to you that in your subsequent opinion, Ex. PW 15/B, you have mentioned the colour of nylon rope as pinkish while the rope taken out from the pullanda bearing stamp of the mortuary and particulars of this case is of purple colour ?
Ans. The colour mentioned by me pinkish colour is not due to inadvertence.
74. This witness in his cross examination on behalf of accused Jaipal stated that the sealed parcel does not bear his signatures and the same was not in his hand writing and the rope does not bear his tag which he put on exhibits. This witness was examined in my presence and I had the occasion to see his demeanour. The witness is highly educated and expert in his field. He has categorically stated that the rope does not bear his tag which he usually put. So to my mind this contention of this witness is sufficient to create doubt that the rope seized and produced as the ligature material may not be the same which was sent by the IO for obtaining subsequent opinion. So the Sessions Case No. : 181/09 Page 35 of 44 36 prosecution has failed to prove beyond doubt that the rope which was produced in the Court was the same rope which was allegedly used by the accused persons to strangulate the victim. Now question arises as to whether this laxity is sufficient to give the benefit of doubt and acquit the accused persons.
75. PW 1 Puneet Vasudeva has categorically deposed that his mother was bleeding from her nose and mouth profusely and neck of his mother was tightly tied down with a plastic rope. He further deposed that he had joined the investigation with the police. The dead body of his mother was sent to BJRM hospital for postmortem. Police had summoned the crime team at the spot and the spot was got photographed. Thereafter the police officials prepared site plan on his pointing out. He further deposed that one plastic rope of light blue colour which he had thrown after untying from his mother's neck was taken into possession by the police after sealing the same with the seal of RS vide seizure memo Ex. PW 1/B.
76. PW 19 and PW 22 have also categorically deposed that PW 1 Puneet Vasudeva handed over one rope of purple colour about 5 ft. 2 inches in length to them and told them that this rope was found tied in the neck of his mother. The rope was Sessions Case No. : 181/09 Page 36 of 44 37 converted into a pullanda and the same was sealed with the seal of RS and seized vide seizure memo Ex. PW 1/B. So the point is that the victim was strangulated with the help of a rope and the doctor who conducted the postmortem also opined that the death occurred due to strangulation and he opined that the death in this case was due to asphyxia as a result of antemortem strangulation by ligature which is sufficient to cause death in ordinary course of nature.
77. No doubt the prosecution botched up its case regarding the identity of the rope but to my mind simply because of this fault no benefit can be given to the accused persons. It is also settled that faulty investigation is no ground for acquittal of the accused.
78. Accused Jaipal has examined one Bhagwan Dass as DW 1 in his defence. DW 1 deposed that about six seven year back he used to live in H. No. I139 Vijay Vihar. He further deposed that accused Jaipal was his tenant and police of PS Prashant Vihar came to his house and took him, accused Jaipal and his wife to the police station. After some inquiries, he and wife of Jaipal were let off but Jaipal was arrested in this case.
79. This witness was cross examined by the Ld. APP for the Sessions Case No. : 181/09 Page 37 of 44 38 State. In his cross examination he stated that he does not know about the facts of this case. He further stated that he has no proof to show that accused Jaipal was his tenant. He further stated that he had not got conducted police verification of accused Jaipal regarding his tenancy. Accused Jaipal remained tenant in his house for about 45 days. He further stated that he cannot tell the date when he approached him and remained with him as tenant up to which date.
80. The testimony of DW 1 is of no help to the accused Jaipal as DW 1 deposed that accused Jaipal was his tenant and was lifted from his house by the police, but in the cross examination by the Ld. APP he stated that he does not has any proof to show that accused Jaipal was his tenant and he had not got conducted police verification of accused Jaipal regarding his tenancy. DW 1 even failed to tell the date when accused Jaipal approached him and remained with him as a tenant up to which date. So it cannot be said that accused Jaipal remained tenant of DW 1 at any point of time and he was lifted by the police from the house of DW 1. Moreover, the wife of accused Jaipal who according to DW 1 was also lifted by the police and later on let off by the police has also not made any complaint to higher Sessions Case No. : 181/09 Page 38 of 44 39 authorities regarding the lifting and false implication of accused Jaipal by the police and accused Jaipal also did not examine his wife in his defnece who could have been the best witness to prove the false implication of accused Jaipal.
81. Now coming to the last leg of the judgment . Till now it has been held that the recoveries from the accused persons have been proved beyond reasonable doubt by the prosecution. Now it is to be seen in these circumstances whether the Court can presume the existence of the certain facts as envisaged U/s 114 of the Evidence Act. Section 114 of the Evidence Act reads as follows :
"114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The only illustration necessary for this case is illustration Sessions Case No. : 181/09 Page 39 of 44 40 "A" which says : "The court may presume - that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.''
82. Whether the presumption under clause A of Section 114 of the Evidence Act can be drawn against the accused is a matter which depends upon the evidence and circumstances of each case and could be only drawn if the factum of recovery is beyond reasonable doubt. It was also argued by the Ld. Addl.
PP that the commission of murder and robbery formed the same part of the transaction.
83. In the instant case the incident took place on 592005 between 7 / 7:30 p.m and according to the prosecution the house of the deceased was robbed. One gold chain and 4 wrist watches were recovered from the accused Jaipal and Radhey Shyam respectively. Accused Jaipal was arrested on 792005 within 2 days of the offence and accused Radhey Shyam was Sessions Case No. : 181/09 Page 40 of 44 41 arrested on 892005 i.e within 3 days of the murder at their instance. Such possession has not been explained by them. So as already held hereinabove the recovery of the above said articles have been proved by the prosecution beyond reasonable doubt. So it can be presumed that the accused committed the murder and thereafter they left with the stolen goods and the murder and the robbery formed part of the same transaction.
84. In view of the above discussions, it is clear that the prosecution has been able to prove that accused Jaipal used to ironing the clothes in Mahadev Kunj Society where the deceased used to live; on the day of the incident accused Jaipal visited the house of the deceased to collect the clothes for ironing and in the evening at about 7 :30 p.m accused Jaipal and accused Radhey Shyam were seeing coming from the stair case of the house of the deceased and the prosecution has also been able to prove the arrest of the accused persons and all the recoveries effected at their instance except the recovery of rope.
85. In these facts and circumstances, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt against the accused persons. Both the accused are, therefore, held guilty and convicted U/s 120 B IPC Sessions Case No. : 181/09 Page 41 of 44 42 and U/s 302/392/201 IPC R/w Section 120B IPC and U/s 411 IPC. Put up for arguments on the point of sentence on 362013.
(Announced in the open Court on 24052013.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE 2, NORTH DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 181/09 Page 42 of 44 43 IN THE COURT OF SH. RAJNISH BHATNAGAR, ADDL. SESSIONS JUDGE 2, NORTH DISTRICT ROHINI COURTS : DELHI IN RE : Sessions Case No. : 181/09 FIR No. : 797/05 P.S. : Prashant Vihar U/s : 302/392/411/34 IPC & 25 Arms Act.
State Vs.
1. Jaipal Singh S/o Sh. Inder Pal Singh R/o Village Pati Kara, District Firozabad (U.P.)
2. Radhey Shyam S/o Sh. Mata Prasad R/o Village Patikra, P.S. Jasrana, District Firozabad (U.P.) ORDER ON SENTENCE
1. I have heard Ld. Addl.PP for the state and Ld. Amicus Curiae Ms. Bindiya Malhotra for the convicts on the point of sentence.
2. It is urged by the Ld. Amicus Curiae for the convicts that they are poor persons; young man; have a family to support and are the only bread earners of their family. Thus minimum sentence be awarded to them.
3. On the other hand Ld. Addl. PP submits that the convicts doesn't deserve any leniency and maximum i.e. death punishment be awarded to them.
4. Convicts Jaipal Singh and Radhey Shyam have been convicted by me vide separate judgment dated 24052013 U/s 120B IPC and U/s 302/392/201 IPC R/w Section 120B IPC and U/s 411 IPC.Sessions Case No. : 181/09 Page 43 of 44 44
5. It is not a rarest of the rare case inviting imposition of capital punishment. I, therefore, sentence the convicts Jaipal Singh and Radhey Shyam to undergo life imprisonment U/s 120B IPC and U/s 302 IPC R/w Section 120B IPC and pay a fine of Rs. 10000/ each. They shall undergo rigorous imprisonment for three months each in case of default of payment of fine.
6. I further sentence both the convicts to undergo rigorous imprisonment for a period of 5 years each and pay a fine of Rs. 5,000/ each U/s 392 IPC R/w Section 120B IPC. They shall undergo simple imprisonment for one month each in case of default of payment of fine.
7. I further sentence both the convicts to undergo rigorous imprisonment for a period of 2 years each and pay a fine of Rs. 3,000/ each U/s 201 IPC R/w Section 120B IPC. They shall undergo simple imprisonment for one month each in case of default of payment of fine.
8. I further sentence both the convicts to undergo rigorous imprisonment for a period of 1 year each U/s 411 IPC. Ordered accordingly. All the sentences to run concurrently.
9. The benefit of section 428 Cr.P.C. be given to convicts. Copy of judgment and order on sentence be given to convicts free of cost. File be consigned to Record Room.
(Announced in the open Court on 06072013) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE02, NORTH DISTRICT, ROHINI COURTS, DELHI Sessions Case No. : 181/09 Page 44 of 44 45 Sessions Case No. : 181/09 Page 45 of 44