Delhi District Court
State vs . Akhtar Khan on 20 October, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0424822008
SC NO: 56/2010
FIR NO: 682/07
PS :TIMAR PUR
STATE vs. Akhtar Khan
U/s 302/323 IPC
JUDGMENT
1 Sl. No. of the Case SC NO: 56/10 2 Date of Committal to Sessions 10/04/08 3 Received by this court on transfer 26/04/11 4 Name of the complainant State 5 Date of commission of offence 20/21.12.2007 6 Name and Parentage of accused AKHTAR KHAN @ VICKY S/O SH.SAMIR KHAN R/O VILLAGE MOHBA, MOHALLA UPER KOT, PS & DISTT. MOHBA (U.P.) AT PRESENT 2/21, JHARODA DAIRY, BURARI GAON, DELHI. AGE: 23 YRS 7 Offence complained of 302/323 IPC 8 Offence charged 302/323 IPC 9 Plea of guilt PLEADED NOT GUILTY 10 Final order CONVICTION ( U/s 302 IPC ) 11 Date on which order reserved 13.10.2011 12 Date on which order announced 14.10.2011 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per the charge sheet is that on 21.12.2007 DD No. 9 Ex.PW5/A was recorded at PP Burari on a call from PCR at 8.25 Page 1 / 28 of judgment State vs Akhtar dated 14.10.2011 2 am to the effect that a quarrel has taken place at Gali No.9, Kaushik Enclave, Sant Nagar. SI Radhey Shyam left for the spot along with Constable Mahabir and Ct. Suresh vide DD No.12 Ex.PW5/B and they reached a Farm House in A Block , Kaushik Enclave, where they found dead body of a young man near a partially built house. The body had injury marks on the forehead and chin which had bled heavily. SI got FIR Ex.PW2/A recorded vide ruqqa Ex.PW19/A and endorsement over it as Ex.PW2/B. SHO was informed, Crime Team was summoned. A Motorcycle no. DL8SAA8598 was seized vide memo Ex.PW12/F, blood stained brick, stone etc. Ex.P1 to Ex.P3, Ex.P10 , Ex.P11 were seized vide memo Ex.PW12/A. A jacket Ex.P16 was seized vide memo Ex.PW12/B. Blood stained earth and earth sample were lifted vide Ex.PW12/D. Site plan Ex.PW20/A was prepared apart from scaled site plan Ex.PW16/A, other articles like country made liquor bottle, steel glass and buttons etc Ex.P4 to Ex.P8 were seized vide memo Ex.PW12/C, broken glass pieces and blood from the spot were lifted vide Ex.PW12/D. Crime Team Report is Ex.PW10/A , finger print memo is Ex.PW4/A. Some hairs found in the finger of the deceased Ex.P13 was seized vide memo Ex.PW12/K. Page 2 / 28 of judgment State vs Akhtar dated 14.10.2011 3 Relatives of the deceased were called through Chowkidar Bahadur Rai . Deceased was identified as Sunil Kumar by his father Munshi Ram and brother Anil Kumar vide statements Ex.PW7/A and PW8/A. Unnatural Death Report Ex.PW20/C was prepared. Request letter for post mortem is Ex.PW5/D and brief facts are Ex.PW20/B, seizure of viscera is Ex.PW20/A. Post mortem of body of deceased Sunil was got conducted and the report is Ex.PW6/A as per which he died of ante mortem shock caused by Carnio Cerebral damage due to blunt force impact. As per subsequent opinion Ex.PW6/C the injuries could be caused by cylinder, gas stove and bricks. Statement of eye witness Bahadur Rai was recorded to the effect that he is working as a Chowkidar at Shiv Dass Aggarwal Farm House , accused Akhtar Khan @ Vicky , R/o Jharoda Dairy was working at this Farm House and deceased Sunil of Burari was working there as a plumber. He became friendly to both of them. They also used to consume liquor together. On 20.12.2007 at around 7.30pm , accused and deceased brought a bottle of liquor and half kilo of raw fish. Bahadur asked him to cook the fish . They all consumed liquor . After getting drunk , deceased Sunil started talking ill of accused Akhtar's mother. Akhtar initially asked him to stop but later got Page 3 / 28 of judgment State vs Akhtar dated 14.10.2011 4 angry and annoyed and started abusing Sunil . They both scuffled with each other. Akhtar lifted a brick lying near by and hit Sunil as a result Sunil started bleeding from forehead. Bahadur separated both of them but Akhtar became furious and he removed his jacket and shouted towards Sunil that he will not leave him alive today. Akhtar grappled with Sunil again and they had to be separated by Bahadur. Akhtar pushed Bahadur towards the wall causing injury to him. Akhtar took Sunil out and pushed him down the floor . He also threw gas cylinder, gas stove and bricks on Sunil from above. Bahadur lost consciousness on account of injuries receive by him. When he woke up in the morning, he found Sunil dead while Akhtar had fled. On the basis of this statement accused Akhtar Khan was arrested vide arrest memo Ex.PW12/H, personal search Ex.PW12/I , made disclosure statement Ex.PW12/J, pointed out spot of incident vide Ex.PW12/G belonging of deceased were seized vide Ex.PW12/F. Witness Bahadur Rai was medically examined vide Ex.PW20/B, hair sample of accused were seized vide letter Ex.PW20/E. These exhibits were sent to FSL vide Road Certificate Ex.PW3/F, acknowledgment by FSL is Ex.PW3/F, malkhana entries are Ex.PW3/B to E collectively. Photographs Page 4 / 28 of judgment State vs Akhtar dated 14.10.2011 5 of the spot are Ex.PW1 to PW22 collectively and negative being Ex.PW23 to Ex.PW44. Chance finger prints were lifted vide memo Ex.PW4/A . FSL report is Ex.PX1 to PX4 as per which sample hairs of accused matched with hairs found in the finger of deceased . Also the buttons found near the dead body matched with the button of shirt belonging to accused which was got recovered by accused from his rented room . Blood group of deceased i.e. B Group matched with the blood found on the jeans pant and white shirt of accused. Accused was medically examined vide MLC Ex.PW21/A, he was found having abrasions on his lower left jaw, right wrist , right forearm and right elbow.
2. After conclusion of investigation , charge sheet U/s 302/323 IPC was filed. After compliance of 207 Cr.P.C, case was committed to Sessions. During the course of trial Ld. Predecessor charged the accused with commission of offence punishable U/s 302/323 IPC on 18.07.2008.
3. To prove its case prosecution examined 21 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused . Accused did not lead any evidence in his defence.
4. I have heard arguments of Ld. Addl. PP Sh. G.S.Guraya for State and Page 5 / 28 of judgment State vs Akhtar dated 14.10.2011 6 Ld. Counsel Ms. Sunita Gupta advocate , Amicus curie for accused. I have also carefully perused the entire case file.
5. The first witness examined by the prosecution is PW1 Ct. Ramesh who was part of the Crime Team and he took photographs of the spot.
6. PW2 Ct.Kirpal Singh was Duty Officer who registered the FIR.
7. PW3 HC Vijender was MHCM who proved relevant malkhana entries.
8. PW4 Ct. Sanjay lifted chance prints from the spot.
9. PW5 Ct. Ram Bilas was DD writer who recorded both the DDs.
10.PW6 Dr. S.Lal conducted post mortem of body of deceased Sunil and proved his detailed reports.
11.PW 7 Munshi Ram father of deceased identified his body,
12. PW8 Naresh, brother of deceased, identified his body,
13. PW9 Anil Kumar , brother of deceased, is last seen witness. He identified accused in the court and deposed about sighting accused on 20.12.2007 at 7.30pm near Sharab Ka Theka and both, i.e. accused and deceased were going for a drinking session on motorcycle 8598 while accused was sitting as pillion rider on the same .
14.PW10 SI Ajay Kumar was part of the Crime Team.
Page 6 / 28 of judgment State vs Akhtar dated 14.10.2011 7
15.PW11 Ct. Bakshish Singh delivered FIR to Officers.
16.PW12 HC Lokender reached the spot initially and witnessed the seizure of articles from the spot. He also witnessed arrest of the accused and identified him in the Court.
17.PW13 Ct. Subhash joined investigation with IO when hair sample of accused were seized from Aruna Asfaf Ali Hospital.
18.PW14 Shiv Raj Aggarwal is owner of the Farm House where Sunil died. He deposed that Bahadur Rai was employed with him as Chowkidar.
19.PW15 Ct. Mahavir joined investigation with IO initially and seized articles of the deceased from the hospital.
20.PW16 Ct. Sonu Kaushik is Draftsman who prepared scaled site plan.
21.PW17 Ct. Suresh joined investigation initially and witnessed the arrest of accused apart form identifying him in the court.
22.PW18 HC Radha Kishan took exhibits from Malkhana to FSL.
23.PW19 SI Radheyshyam conducted the initial investigation of seizure of articles from spot apart from arresting the accused. He identified accused in the Court.
Page 7 / 28 of judgment State vs Akhtar dated 14.10.2011 8
24.PW20 Inspector K.S.Rawat is IO in the matter, he identified accused in the court and detailed steps taken during the investigation.
25.PW21 Dr. Anubha conducted medical examination of accused.
26.At the onset before starting evaluation of evidence , it would be handy to have a glance at the definition of murder.
27.Section 300 IPC Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly:If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
28. The three basic ingredients U/s 302 IPC runs as under:
Ingredients of offence: Page 8 / 28 of judgment State vs Akhtar dated 14.10.2011 9 The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human was being caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
29.Now I shall evaluate the evidence of the prosecution ingredientwise.
30.As far as identity of deceased Sunil is concerned apart from factum of his unnatural death, prosecution has not only proved Post Mortem Repoprt Ex.PW6/A and opinion Ex.PW6/C but also his body identification statements Ex.PW7/A and Ex.PW8/A. It is also not disputed by the defence that deceased was Sunil S/o Munshi Ram and that he suffered an unnatural death on the night of 2122.12.2007.
ND 2
31. INGREDIENT Such death was caused by or in consequence of the act of the accused;
32.As regards the second ingredient , prosecution filed this charge sheet on the basis of evidence of a sole eye witness apart from certain incriminatory circumstances . The sole eye witness relied by the prosecution is PW Page 9 / 28 of judgment State vs Akhtar dated 14.10.2011 10 Bahadur Rai . Record reveals that he was never produced in the court and was not examined at all. Record further reveals that even though repeated attempts were made to get him served at his both local as well as native address at West Bengal but apparently he could not be traced. He was dropped as a witness by Ld. Predecessor on 23.09.2010 . Even thereafter fresh attempts were made to trace him out but he could not be traced. There appears to be some kind of causal approach in the investigation done by the IO Inspector K.S. Rawat on this score, in so far as despite Bahadur Rai being a sole star witness of a murder case , IO could not even ascertain and mention his actual name in the list of witnesses. As per report received on 08.07.2010 actual name of Bahadur Rai is Sumanto Rai.
33.In the absence of deposition of sole eye witness , the entire prosecution case now rests only on circumstantial evidence. The circumstances sought to be relied and proved against the accused are enumerated hereunder:
i. Hairs said to be of accused found in the hand of deceased ii. Recovery of a button at the spot said to be of accused 's shirt iii. Recovery of a jacket at the spot said to be belonging of accused Page 10 / 28 of judgment State vs Akhtar dated 14.10.2011 11 iv. Recovery of clothes of accused stained with deceased's blood.
v. Finger prints lifted from the spot vi. Deceased and accused last seen together by brother of deceased vii. Employment of accused and deceased together at the Farm House where murder took place.
34. Now I shall endeavour to evaluate the evidence brought by the prosecution qua each of the above circumstances:
Hairs said to be of accused found in the hand of deceased
35.(i) :
As per the prosecution case in rukka Ex. PW 19/A it is mentioned that police found some strands of hair in the right hand of deceased and they were seized separately as Ex. P13 vide memo Ex. PW 12/K . Photographs of the spot Ex.PW1/1 to 22, also contain two separate photographs which show several strands of hair entangled in the fingers of the right hand of deceased. These hairs were sent to FSL for comparison. After the arrest of accused vide application Ex. PW 20/E, hair sample of accused were taken with the help of Aruna Asaf Ali Hospital vide Memo Ex. PW 13/A. It was received by Biology division of FSL Rohini as parcel no. 14 while the hair said to have recovered from the hand of deceased were received as parcel Page 11 / 28 of judgment State vs Akhtar dated 14.10.2011 12 no.1. The report qua their comparison or Ex.PX 3 reads "from the morphological and microscopical studies hair in exhibits "1" & "14" were found to be human in origin and similar in most of their characteristics".
When this fact was put to the accused during the 313 Cr.P.C. Examination , he did not offer any explanation qua the same. It is not even his case that police had forcibly removed some strands of his hair from his head and have planted it in the hands of the deceased. Comparison of DNA profile of the seized and sample hairs would have added more credibility to this expert opinion. Nevertheless , prosecution has successfully substantiated this circumstance that the hair seized from the right hand fingers of the deceased did actually belong to the accused.
36.In case titled Rama Subramainiam vs. State of Kerala, AIR 2006, SC 639 Hon'ble Supreme Court relied recovery of hairs of accused from the saree and undergarment of deceased as one of the circumstances for upholding conviction in a murder case.
(ii) Recovery of a button at the spot broken from accused 's shirt
37. :
As per seizure memo Ex/PW12/C, two buttons are shown to have been seized by the IO from near the door, one was white in colour while the other Page 12 / 28 of judgment State vs Akhtar dated 14.10.2011 13 said to be yellow, was seized from outside the room. As per FSL report Ex.PX1, one of the seized buttons Ex.18 was found similar to buttons Ex.B1to B8 in colour texture, thickness etc apart from appearance in UV Light and Microscope . Buttons Ex.B1 to B8 belonged to the shirt of the accused seized from his house vide memo Ex.PW19/B. FSL report further nd reveals that the 2 button found at the spot Ex.19 did match with buttons Ex.B9 to B13 belonged to deceased. Even the photographs clearly show that the clothes of deceased including shirt and jacket were forced opened , as if under a scuffle and his dead body is lying bare chested. IO has also taken separate photographs of both the buttons before their seizure from the spot. Above circumstance also indicates the presence of accused at the spot of murder.
(iii) Recovery of a jacket at the spot said to be belonging of accused
38. Prosecution has proved a light gray colour jacket Ex.P16. It was seized from the first floor at the spot vide memo Ex.PW12/B. As per Ld. APP , this jacket belongs to accused Akhtar. However, perusal of the entire evidence reveals that although seizure thereof stands proved but as per FSL Report no blood was detected over it . Also none of the witnesses examined by Page 13 / 28 of judgment State vs Akhtar dated 14.10.2011 14 the prosecution has stated the jacket belonged to the accused . It is only in the 161 Cr.P.C. statement of PW Bahadur Rai that this fact is mentioned but it is of no avail to the prosecution since this witness was not produced and examined in the Court. Even in his 313 Cr.P.C. statement , accused has expressed unawareness qua seizure of the jacket. As such this circumstance could not be proved.
(iv) Recovery of clothes of accused stained with deceased's blood
39. As per record after the arrest of accused Akhtar on 21.12.2007 , IO recorded his disclosure statement Ex.PW12/A wherein he is shown to have disclosed that he has kept his blood stained clothes in his house. He further got the said clothes recovered vide memo Ex.PW19/B . As per this seizure memo both the shirt and the pant were blood stained. Although it was argued by Ld. Defence Counsel that no blood was detected over them, but this is found to be a factually incorrect plea . As per FSL Report Ex.PX3 and PX4 , jeans pant and shirt belonging to accused Ex.13A and 13B of parcel 13 were found containing human blood of "B Group". The sample blood of deceased Ex.15 seized from the mortuary was also found to be of "B Group". The blood lifted from the spot near the body was also of "B Page 14 / 28 of judgment State vs Akhtar dated 14.10.2011 15 Group". Similarly blood stained bricks , gas cylinder and gas stove were also found stained with "B Group Blood". As such this is a very strong circumstance against the accused. As far as recovery of blood stained clothes of accused from his house are concerned, it is argued by Ld. Defence Counsel that no independent public witness was examined by the police. No doubt examination of public person would have added to the credibility of State's case but mere non joining of public person can not be allowed to be made a tool to dislodge the believable deposition of police officials.
40.In case titled, " Kalpnath Rai Vs. State" 1998 AIR (SC) 201Hon'ble Supreme Court observed that :
"There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Nonexamination of independent witness or even presence of such witness during the raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely or the ground that no independent witness was examined.
Page 15 / 28 of judgment State vs Akhtar dated 14.10.2011 16
41.In case titled Izzaul vs. State ,2007 (4) RCR (Criminal) 315 (Delhi) it has been observed by Hon'ble High Court that :
Section 27 - Robbery case Recovery of stolen property by Police No public witness associated
- Contention that recovery should not believed - Contention not tenable - Police officials can not be presumed less or more credible than any other normal public witness Credibility of each witness in crossexamination Police officials do not suffer from any disability to give evidence - Mere fact that they are police officials does not by itself give rise of any doubt about their creditworthiness.
(v)Finger prints lifted from the spot
42. As per prosecution case vide memo Ex.PW4/A, six chance prints were lifted form the spot by the Crime Team. They were sent to Finger Prints Bureau for comparison by the IO under an undated letter purportedly along with sample impressions of the accused. However, vide noting dated .5.3.2008 , Director , Finger Print Bureau , Malviya Nagar, directed the IO to supply better quality specimen of the accused . Despite receipt of this , IO did not take pain to obtain fresh samples of the accused and never sent them for comparison as demanded, even though this requisition was received before preparation of this charge sheet. Also the record does not contain any Page 16 / 28 of judgment State vs Akhtar dated 14.10.2011 17 memo qua obtaining the sample prints of the accused. During the course of hearing, IO was summoned and asked as to why , the repeat sample prints were not sent and why no memo of obtaining finger print samples was prepared. IO had absolutely no explanation to put forth. This conduct of the IO Inspector K.S.Rawat is indicative of high degree of carelessness, callousness , dereliction of duty and misconduct calling for a strict departmental action against him. Be that as it may , as a result of this omission by the IO to do the needful, prosecution has failed to connect the six chance prints with the accused.
43.In case titled State of Karnatka Vs. M N Ram Dass" AIR 2002 SC (3109) Hon'ble Supreme Court observed:
"Lapse in investigation will not caste a cloud of doubt on prosecution case . Benefit of an act or omission of the investigating agency should not go to the accused in the interest of justice."
44.Similar observation was made by Hon'ble Supreme Court in Sachdevan Vs. State" AIR 2002 SC 215 that:
"any irregularity in investigation should not be allowed to be some tool to dislodge the entire prosecution case on merits."
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45.Further in State Vs. Mir Mohd. Omar (2000) 8 SCC 382 Hon'ble Supreme Court observed that :
"If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Efforts should be made by courts to see that criminal justice is salvaged despite such defects in investigation."
46. (vi) Deceased and accused last seen together by brother of deceased As per the prosecution case PW 9 Anil Kumar , who is brother of deceased Sunil, had seen both deceased Sunil as well as accused Akhtar @Vicky on motor cycle on the night of murder i.e. 20.12.2007 at around 7.30 pm near Sharab Ka Theka while both of them were purchasing liquor. He is even shown to have entered into a conversation with his brother Sunil and Sunil told PW 9 Anil Kumar that he is going to Farm House for a drinking session with accused Akhtar. At that time Sunil was driving his motor cycle no, 8958 while Akhtar was sitting on the pillion . Further as per PW9 when Sunil did not reach home back till late night, they thought that he must have slept with accused Akhtar @ Vicky at the Farm House . But when Sunil did not return even in the morning, he went out searching for him & he came to know that his brother Sunil has been murdered.
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47.On this circumstance of last seen evidence, it is argued by Ld. Defence Counsel that PW9 should not be relied because he is an interested witness being brother of deceased. I am not in conformity with this plea, as being relative or interested witness, deposition of a per se truthful and believable witness can not be discarded mechanically. Even during the cross examination of this witness, no negative suggestion has been put to him , the factum of his sighting deceased and accused together has not been denied at all.
48.In case titled Hari Ram Vs. State of UP, AIR 2004 SC 3754 Hon'ble Supreme Court while declining plea of defence of interestedness of a witness in a murder case observed :
"Relationship is not a factor to affect credibility of a witness. It is more often then not that a relation would not conceal actual culprit and make allegations against an innocent person . Over insistence on witnesses having no relation with the victim often results in criminal justice going away. When any incident happened in a dwelling house or nearby, the most natural witnesses would be the inmate of that house . It would be unpragmatic to ignore such natural witnesses and insists on outsiders who would not have even seen anything."
49.1991 Cr.L.J 402 (SC) , Hon'ble Supreme Court observed that: Page 19 / 28 of judgment State vs Akhtar dated 14.10.2011 20 "Evidence of closely related witnesses to deceased not to be mechanically rejected.''
50.In AIR 1971 SC 296, Hon'ble Supreme Court observed that " In a murder case deposition of the brother of the deceased is more credible.''
51.In Hukam Singh Vs. State (2000)7 SCC 490, Hon'ble Supreme Court observed that: "relative witness can not be termed as interested witness. If they had seen the occurrence , it is only natural that they would implicate the real offender."
52.In AIR 1972 SC 667 Hon'ble Supreme Court observed that : "Unless it is proved that witness has motive to spare the real offender and to implicate the accused, the relative witness can not be disbelieved."
53.Further it goes without saying that a skillful cross examiner must hear the statements in chief examination with attention, and when his turn comes, he should interrogate the witness on all material points that go against him. If omits or ignores then they may be taken as an acceptance of the truth of that part of witness evidence. In case titled Babu Lal Vs. Caltax (India Ltd.) A 1967 C 2005 it was ruled that " generally speaking, when cross examining, a party's Page 20 / 28 of judgment State vs Akhtar dated 14.10.2011 21 counsel should put to each of his opponents witness in turn, so much of his case as concerns the particular witness or in which he had a share............if asks no questions, he will be taken to accept the witness account."
54.In case titled Pardeep Singh Vs. State of Rajasthan AIR 2004 SC 3781 Hon'ble Supreme Court upheld the conviction in a murder case based on circumstantial evidence. The circumstances relied by Hon'ble Supreme Court are : deceased last seen in the company of accused, extra judicial confession, recovery of pant & shirt stained with the blood of deceased on the pointing of accused.
55.In case titled K.Saral Kumar Vs. State of AP , AIR 2008 SC 1877 and in case titled Babu Raveeldram Vs. Babu Bahuleyal , 2003 SCC Crl.1569 and in case titled State of AP vs. Sheik Mazhar, AIR 2001 SC 2427 Hon'ble Supreme Court upheld the conviction in a murder case while relying on last seen evidence as one of the incriminatory circumstances against the accused.
56.As such in the light of aforesaid discussion and case laws, prosecution has successfully established that deceased Sunil and Accused Akhtar were last seen together by PW9 Anil Kumar on the night of date of murder.
(vii)
57. Employment of accused and deceased together at the Farm Page 21 / 28 of judgment State vs Akhtar dated 14.10.2011 22 House As far as employment of accused at the Farm House is concerned, no dispute qua the same has been raised by the defence. Although no specific witness has been examined to show that accused Akhtar was a regular employee at the Farm House where the murder took place, but in his statement under Section 313 Cr.P.C, accused has himself admitted that he was employed at the Farm House and PW Bahadur Rai had helped him in getting the employment.
58.Even otherwise his presence at the spot is also decipherable from the circumstantial evidence discussed, supra. Presence of his hair strands in the hand of deceased, recovery of button of his shirt near the dead body, matching of blood group of deceased with the blood stained clothes of accused recovered from his house and deposition of PW9 Anil Kumar that deceased had gone to Farm House with accused Akhtar for a drinking session, conclusively show that not only he was employed at the Farm House but he was present there at the time of murder on the night intervening 20 & 21.12.2007.
59.Now I shall evaluate the evidentiary value of above circumstances so as to Page 22 / 28 of judgment State vs Akhtar dated 14.10.2011 23 ascertain whether they are sufficient to bring home the charge of murder of Sunil against the accused.
60.It would be appropriate to discuss land mark case laws qua appreciation of evidence in a murder case based on circumstantial evidence.
61.In case titled Gamparai Hrudayaraju vs. State of AP 2010 (1) RCR (Criminal) 534 (SC) while dealing with the murder case based on circumstantial evidence, it was observed by Hon'ble Supreme Court that :
"When case rests upon circumstantial evidence, such evidence must satisfy the following tests :
1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
3. the circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
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5. the circumstances relied upon must be found to have been fully established and the cumulative effect must be consistent only with the hypothesis of guilt.
6. onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution can not be cured by false defence or plea."
62.In case titled Gambhir Vs. State AIR 1982 SC 1157 it has been observed by Hon'ble Supreme Court that :
"The law regarding circumstantial evidence is well settled. When a case rests on circumstantial evidence it must satisfy three tests Viz. (1) circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, (2) those circumstances should be of definite nature and tendency unerringly pointing towards guilt of the accused and (3) the circumstances taken cumulatively should form a chain so complete in itself that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."
63.Appreciating the circumstances proved by the prosecution in the light of aforesaid case laws shows that the circumstances conclusively proved against the accused are not trivial and casual in nature but are clinching ones . Although deposition of eye witness PW Bahadur Rai would have bolstered the prosecution case in many ways but sheer non examination of Page 24 / 28 of judgment State vs Akhtar dated 14.10.2011 25 this witness does not mean that the other circumstantial and scientific evidence available and proved on record, should be in any manner undermined.
64.Upon reevaluation the chain of events which conclusively unfold are that accused Akhtar @Vicky was employed at the Farm House where the murder took place. Deceased Sunil was a plumber by profession. On the fateful day deceased and accused purchased liquor from a theka where they were sighted by PW9 Anil Kumar. At that time deceased Sunil told PW9 Anil that they are going for a drinking session at the Farm House. Next morning Sunil was found dead on the ground floor of the Farm House . As per PM Report and photographs Sunil died of about 8 Ante Mortem Injuries caused by blunt force impact which could be possible by a gas cylinder, gas stove and bricks. Photographs show that they were purportedly hurled over his head from the first floor since the cooking utensils etc were found lying on the first floor while gas stove and cylinder lying blood stained adjacent to the body on the ground floor in shattered condition with their gas supply pipe, regulator separated. The blood stained bricks lying around the dead body, which are more than 20 in numbers are Page 25 / 28 of judgment State vs Akhtar dated 14.10.2011 26 broken from the edges signifies that they were hurled upon the deceased from a height. Deceased had strand of hairs in his hand which belonged to accused Akhtar . Broken button of shirt belonging to accused was also recovered from the spot . Blood of deceased was found on the clothes of the accused which were recovered from accused's house .
65.In case titled Wasim Khan vs. State AIR 1956 SC 400 Hon'ble Supreme Court ruled :
"The discovery of buttons with blood stains at the instance of the accused is a circumstance which may raise a presumption of participation of the accused in the murder ."
66.As such all these circumstances clearly establish a complete chain of sequence of events which inevitably leads to a conclusion that it was accused who caused death of deceased Sunil.
rd 3
67. ingredient Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
68.The manner in which the 8 blunt injuries were caused on the body of deceased Sunil i.e. by hurling heavy LPG gas cylinder, gas stove and Page 26 / 28 of judgment State vs Akhtar dated 14.10.2011 27 around 20 full size bricks from height categorically shows that accused Akhtar knew that by doing so he would in all probability cause death of deceased Sunil or would at least end up in causing such bodily injuries which would in all likeliness cause death of Sunil. Moreover, all the above heavy articles were thrown from a considerable height and were apparently aimed only at the head, neck and upper chest area of the deceased as are visible in photographs & duly corroborated by PM Report. All this goes on to show beyond shadow of doubt that accused Akhtar deliberately caused such bodily injuries by repeated assaults on the body of deceased Sunil which would in all probability end up in his death.
69.In V.N.Srikantiah Vs. State AIR 1958 SC 672 Hon'ble Supreme Court ruled :
" where out of 24 injuries majority were on the vital parts of the body, the case comes under clause 2 of Section 300 IPC "
70.In view of the above detailed discussion I have no hesitation in concluding that prosecution has successfully proved its case against accused Akhtar for commission of offence punishable U/s 302 IPC beyond shadow of doubt. It stands conclusively proved that it was accused Akhtar who on the night of 20.08 .07 committed murder of deceased Sunil at the Farm House Page 27 / 28 of judgment State vs Akhtar dated 14.10.2011 28 , A Block , Kaushik Enclave, Burari. Accused Akhtar is accordingly convicted for commission of offence punishable U/s 302 IPC. As far as charge framed U/s 323 IPC is concerned, as per record, it is qua claimed injuries sustained by Bahadur Rai. He was neither examined in the court nor his MLC was proved . As such no additional conviction U/s 323 IPC is made out. Convict Akhtar shall be heard separately on the point of sentence qua conviction U/s 302 IPC.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 14.10.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 28 / 28 of judgment State vs Akhtar dated 14.10.2011 29 IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI ID NO: 02401R0424822008 SC NO: 56/2010 FIR NO: 682/07 PS :TIMAR PUR STATE vs. Akhtar Khan U/s 302 IPC 20.10.2011 ORDER ON SENTENCE In presence of : Ld. Addl. PP Sh. G.S.Guraya for State Ld. Counsel Ms. Sunita Gupta advocate , Amicus Curie for accused /convict Accused / convict is already in J/c
1. Vide separate judgment dated 14.10.2011 convict Akhtar was convicted for committing offences punishable U/s 302 IPC.
2. I have heard arguments of Ld. Addl. PP Sh. G.S.Guraya for State and Ld. Counsel Ms. Sunita Gupta , Amicus Curie for convict Akhtar . I have also perused the entire file.
3. On the point of sentence it has been submitted by Ld.Addl. PP for State that convict does not deserve any leniency in so far as he ruthlessly and brutally killed deceased Sunil in a painful murder by initially throwing him down from the first floor followed by hurling of gas stove, gas cylinder, and bricks continuously on his head and chest area till he died.
4. On the other side it is submitted by Ld. Defence Counsel that convict is a young boy of 23 yrs and has a younger brother and sister apart from mother who has been deserted by his father. He is said to be sole bread earner in the family and has clean antecedents.
Page 29 / 28 of judgment State vs Akhtar dated 14.10.2011 30
5. In case titled Sevaka Perumal Vs State, AIR 1991 SC 1463 it has been observed by Hon'ble Supreme Court that :
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society can not long endure under serious threats. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed."
6. In case titled Dhananjoy Chatterjee vs State (1994)2 SCC 220 it has been observed by Hon'ble Supreme Court that "The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is manner in which the court responds to the society's cry for justice against criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment."
7. Record reveals that there was no previous enemity between the convict and deceased Sunil. Rather they were pals who decided to have some good time by having a liquor drinking session at the Farm House. A trivial verbal duel turned ugly an rather deadly courtesy menace of Liquor Drinking amongst Page 30 / 28 of judgment State vs Akhtar dated 14.10.2011 31 young populace. A precious young life was snipped out brutally. The entire episode appears to be impulsive and without premeditation which arose out of a sudden quarrel between the slayer and slayed . Evil of drinking habit in younger generation yet again took a toll of one young life and doomed the other for life.
8. Considering the fact that convict continued to assault unarmed deceased Sunil with bricks, gas stove and gas cylinder till he died a painful death, convict is sentenced with rigorous life imprisonment for commission of offence punishable U/s 302 IPC apart from paying fine of Rs.50,000/ I/D to undergo additional imprisonment for a period of six months. Out of this amount Rs.45,000/ be paid to the family of deceased Sunil as a token of compensation . Copy of judgment and order on sentence are being supplied to convict free of cost.
FINE NOT PAID ANNOUNCED AND DICTATED IN OPEN COURT ON : 20.10.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 31 / 28 of judgment State vs Akhtar dated 14.10.2011