Delhi District Court
State vs Kanshu Yadav on 16 October, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Digitally
Unique Identification No. 02404R016522012 signed by
Sessions Case No. 69/1/13
MANOJ MANOJ JAIN
Date:
FIR No. 79/12 JAIN 2015.10.16
PS Adarsh Nagar 15:57:38
U/s 302/201 IPC +0530
State Versus Kanshu Yadav
Son of Sh. Dharam Raj
Resident of E-165,
Pratap Vihar,
Vishal Bagh, Delhi.
Date of institution in Sessions Court : 11.07.2012
Date of conclusion of arguments : 01.10.2015
Date of pronouncement of judgment : 15.10.2015
Memo of Appearance:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Anil Khosla, learned defence counsel for accused.
JUDGMENT
1 Attar Singh (PW2) informed police on 26.03.2012 that one person, having multiple injuries over his body, was lying dead in an open place in front of out-gate of Mandi. SI Rajiv Kumar (PW23) reached the spot and saw one such dead body. Kanha Ram (PW1) was also met at the spot who revealed that on the previous night i.e. night intervening 25.03.2012 & 26.03.2012 when he was returning between 12.30 AM and 1.00 AM, he saw one tempo parked near NDPL Power House near the same open place and the driver of the tempo had tied one person in the rear portion of the tempo and was beating him up with a fan-belt. Informant Kanha Ram also divulged that when he confronted the tempo driver as to why he was beating up that man, tempo driver answered that said person had committed theft of the articles from the tempo. Kanha Ram suggested to hand FIR No. 79/12 PS Adarsh Nagar Page 1 over him to police instead but tempo driver did not heed to such suggestion and kept on beating him up claiming that his two accomplices had been able to flee away and he would extract their names from him. Next morning, when Kanha Ram saw one crane taking away same tempo, he called Attar Singh (PW2) and requested him to note down the number of the tempo as well as of the crane. He also claimed that dead body, lying at the spot, was of the same person who had been seen tied in that tempo previous night and whom that tempo driver was beating up. He also claimed that he could identify such tempo driver.
2 Attar Singh (PW2) confirmed that he had noted down such numbers on the request of Kanha Ram. Tempo number was revealed as DL-1M-2602 and crane number as HR-55L-1012. Statements of other eyewitnesses were recorded and such other eyewitnesses i.e. Kiran Pal (PW14) and Chandan Kumar (PW17) also confirmed that one person had been beaten up by fan-belt on night intervening 25.03.2012 & 26.03.2012.
3 Necessary investigation was carried out. Dead body was sent to mortuary for preservation and postmortem. Details of the ownership of the said tempo and crane were obtained and then it was learnt that Ramkesh Yadav (PW9) had towed said tempo to Rajasthan Udyog Nagar behind GT Road through his crane. Police accordingly reached there on 28.03.2012 and saw said tempo parked near Galaxy Toyota. Tempo driver i.e. accused Kanshu Yadav was also apprehended. Tempo was inspected and bloodstains were found in the tempo on the rear side. Fan-belt was also recovered which also contained blood stains. Tempo was got inspected through FSL team. Accused was asked to undergo Test Identification Parade (TIP) but he refused to participate in TIP. During investigation, when accused was on police custody and when he had already refused to participate in judicial TIP, all the eyewitnesses identified him claiming that he was the same person who had tied one unknown person in the rear side of the tempo and had beaten him up. Efforts were made to determine the identity of the deceased but despite best efforts, his identity could not be ascertained. As per the postmortem report, death was due to coma and shock consequent upon multiple injuries and all the injuries were ante-mortem, fresh in duration and could be caused by soft blunt object like whip and some injuries FIR No. 79/12 PS Adarsh Nagar Page 2 were possible by hard blunt object. It was also mentioned in the postmortem report that injuries were sufficient to cause death collectively in the ordinary course of nature.
4 It is in these circumstances that accused has been arrested and charge-sheeted for commission of offences under Sections 302/201 IPC.
5 Charge-sheet was filed before the concerned Magisterial Court on 23.06.2012 and case was ordered to be committed to the Court of Sessions vide order dated 04.07.2012.
6 Case was received on allocation by this Court on 11.07.2012.
7 Arguments were heard and accused was ordered to be charged under Sections 302/201 IPC. Charges were framed on 31.07.2012. Accused pleaded not guilty and claimed trial.
8 Prosecution was directed to adduce evidence and has examined 25 witnesses who can be classified as under:-
Public witness/injured/complainant
(i) PW1 Kanha Ram (complainant/ eyewitness)
(ii) PW2 Attar Singh (Public person who had noted down the numbers)
(iii) PW5 Mukesh Kumar (Previous owner of Tempo)
(iv) PW8 Shri Ram ( Owner of Crane shop)
(v) PW9 Ramkesh (Crane Driver)
(vi) PW12 Sh. Rajesh Kumar
(vii) PW14 Kiran Pal (eyewitness)
(viii) PW16 Sanjeev Kumar
(ix) PW17 Chandan Kumar (eyewitness)
(x) PW22 Bipin Malik Witness related to investigation
(i) PW3 W/HC Prafulla (Duty Officer)
(ii) PW4 SI Manohar Lal (Draftsman)
(iii) PW6 Ct. Ashraf (police official who delivered copies of FIR)
1. PW7 Ct. Pradeep (witness to initial investigation who got registered the FIR)
2.
FIR No. 79/12 PS Adarsh Nagar Page 3
(v) PW10 Ct. Subhash (Crime team photographer)
vi) PW11 SI Sanjeev Verma (Crime Team In-charge)
(vii) PW13 Ct Mehendi Hassan (Police official who took sealed pullandas to FSL)
(viii) PW15 ASI Shashi Kumar (witness to arrest of accused and recovery)
(ix) PW18 Ct. Kishan Gopal (witness to arrest of accused and recovery)
(x) PW21 HC Rakesh (MHC(M))
(xi) PW23 SI Rajiv Kumar (First IO)
(xii) PW24 Ct. Dharmender
(xiii) PW25 Inspector Virender Kadiyan (Investigating Officer) Doctor/FSL Expert
(i) PW19 L Babyto Devi (FSL Expert)
(ii) PW20 Dr. Bhim Singh (Autopsy Surgeon)
9 Accused, in his statement u/s 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated. According to him, he had left his tempo-truck near Bijali Ghar (Power House) and went to the house of his friend and he did not know what happened at the spot that night in his absence. He also claimed that he had never caught hold of anyone or tied anyone or beaten up anyone. He also claimed that he had got his tempo towed next day to mistri (mechanic) and he did not know anything else.
10 He, however, desired to lead evidence in defence and examined DW1 Sanjay Yadav and DW2 Sattan Paswan in order to show that on fateful night, he remained with them throughout.
11 I have heard learned Addl. P.P. and learned defence counsel and carefully perused the entire material available on record.
12 Learned Addl. P.P. has contended that case of the prosecution is crystal clear and the evidence on record unmistakably indicates that it was accused and accused alone who had clubbed him to death. He has argued that as per the case of prosecution, accused had tied the victim in his tempo as he felt that such victim used to steal parts from his tempo. He has also contended that the manner in which victim had been beaten up leaves no doubt about the evident evil intention and knowledge of accused. He has argued that despite repeated FIR No. 79/12 PS Adarsh Nagar Page 4 requests made by the public persons, accused did not relent and instead of handing over the supposed thief to the police, he took law in his own hands and gave a serious thrashing to the victim which eventually proved fatal. He has also argued that after committing such brutal murder, accused did not show any remorse and rather tried to befool everyone by leaving the dead body at the spot and getting his tempo towed away in order to escape from the clutches of law. It has, therefore, been argued that testimony of all the witnesses including material public witnesses raises clear accusing fingering towards accused and accused alone.
13 Sh. Anil Khosla has, on the other hand, refuted all the aforesaid contentions and has argued that police has picked up an easy prey and has falsely implicated him. According to Sh. Khosla, accused had merely parked his tempo at the spot and thereafter he left the spot by 7.00 PM or 8.00 PM and returned there next morning and he did not know anything at all about any such incident in which any person had been tied and beaten up. He has also drawn my attention towards the testimony of defence witnesses and has also claimed that accused was with his said two friends that night and he was never involved in the incident. He has also asserted that even the testimony of alleged eyewitnesses does not help the case of prosecution in any manner whatsoever and does not incriminate the accused at all.
14 Let me straightaway come to the testimony of material public witnesses i.e. PW1 Kanha Ram, PW2 Attar Singh, PW14 Kiran Pal and PW17 Chandan Kumar.
15 Except PW2 Attar Singh, all the other three witnesses are eyewitnesses and they had themselves seen the accused beating up the injured. As far as PW2 Attar Singh is concerned, he had merely noted down the registration numbers of tempo and crane next morning at the request of Kanha Ram.
16 PW1 Kanha Ram has deposed that he was running a tea-stall near NDPL Power House in front of outer-gate of Azad Pur Mandi. On the intervening FIR No. 79/12 PS Adarsh Nagar Page 5 night of 25.03.2012 & 26.03.2012, when he was returning after supplying tea, he saw one tempo near NDPL Power House parked in open land and also saw public persons near the tempo. He went there and saw one person tied with the help of rope and when he questioned the person, who had tied him, he revealed that such man had been tied because he had committed theft of articles of his tempo. PW1 Kanha Ram also deposed that accused Kanshu Yadav was the same person who had tied that thief and from whom he had made enquiries in this regard. He further deposed that he asked the accused to hand over the thief to the police to which accused answered that he would hand over him to the police in the morning after recovering back his articles. On this PW1 Kanha Ram returned to his tea-stall and later on, in the daytime that tempo was taken away by the owner of the tempo with the help of a crane. He then got recorded number of the tempo through rehriwala Attar Singh. He also claimed that police came at the spot and recorded his statement. He has also proved his such statement as Ex. PW1/A. He also claimed that police had taken the photographs of the scene of occurrence and also of the dead body. He also revealed that on 31.03.2012 at about 6.00 PM, police had come to him along with the same tempo driver and at that time also, he identified him and told the police that he was the same person who had beaten up that person with the belt after tying him. He also deposed that police had revealed his name as Kanshu Yadav.
17 The other two eye-witnesses have not been able to identify the accused. PW14 Kiran Pal has though admitted that he had seen a gathering of 40-50 persons near the tempo and he had also seen that one person was tied in that tempo and though he admitted that such person was claimed to be a thief yet he claimed that he could not see that tempo driver properly and, therefore, he was not in a position to identify him. Similarly, PW17 Chandan Kumar has also admitted that he had seen the public persons gathered at the spot and he had also seen one person tied with a big tempo but supplemented that he did not see anything else. He also could not identify either the accused or the deceased when photographs were shown to him. I would further discuss the testimony of these two unsupportive witnesses later on.
FIR No. 79/12 PS Adarsh Nagar Page 6 18 Let me revert back to the testimony of PW1 Kanha Ram. 19 His deposition is found to be very definite and precise. He has, in his
examination-in-chief, categorically claimed that he had seen one person tied in the tempo with the help of rope. He also identified accused Kanshu Yadav as the same tempowala who had tied that man up. He has clearly deposed that accused was the same person who was beating up the victim. Sh. Khosla has, however, contended that examination-in-chief cannot be read in isolation and in cross-examination, this witness has claimed that he had never seen any incident of beating up. I have carefully scrutinized the cross-examination of PW1 Kanha Ram. In his cross-examination, he claimed that 40-50 persons had gathered there at the time of incident and he had seen the victim in a tied position but he had not seen anyone beating him up. He then volunteered and claimed that several public persons were there and some were beating him. Since, he was found to be little confused in his deposition, learned Addl. P.P. sought permission to re-examine him and in his such re-examination, he claimed that whatever he had deposed earlier about the occurrence was correct though when further cross- examined by defence, he also claimed that whatever he had told that day (during cross-examination) was also correct.
20 Be that as it may, fact remains that the entire deposition of PW1 Kanha Ram establishes following facts:-.
(i) He had seen the incident with his own eyes.
(ii) He had seen one person tied in tempo with the help
of rope.
(iii) Accused Kanshu Yadav was that person who had tied
that man in the tempo.
(iv) That man had been tied because he was presumed to be
a thief by the accused.
(v) Such person was also beaten up.
21 As regards beatings, as per examination-in-chief, it was accused who
was beating up that tied person with a fan-belt though in cross-examination, Kanha Ram has claimed that several public persons were present at the spot and some public persons were beating him. Curiously, there is no suggestion by defence to this material prosecution witness that accused was not the one who had tied the victim in his tempo or that Kanshu Yadav had not given any beating FIR No. 79/12 PS Adarsh Nagar Page 7 to such victim. Since, there is no suggestion to such effect, I am of the considered opinion that defence cannot be permitted to dig out any big advantage out of the aforesaid insignificant shift in stand. Fact remains that as per Kanha Ram, he too had seen victim beaten up.
22 Testimony of PW2 Attar Singh is also of considerable substance. He is the one who had noted down the tempo number and crane number. He has supported the case of prosecution in toto. He has deposed that on 26.03.2012 at about 8.45 AM, Kanha Ram, who also used to have a tea-rehri at a short distance from his rehri, told him that on the previous night, a tempowala had beaten up a person after tying him with the tempo. Thereafter, PW2 Attar Singh along with Kanha Ram reached the spot that morning and saw said tempo being taken away with the help of crane and Kanha Ram then told him to note down the number of such Eicher tempo. He accordingly noted down the number of tempo and number of crane as well in his copy in which he used to maintain accounts of sale. He also claimed that at that time, he had also seen a person lying dead. He informed the police from his mobile phone and then police reached the spot and on arrival of the police, he had given photocopy of that particular page of his copy on which he had noted down the numbers of tempo and crane. He also brought the original which was seen and returned and photocopy thereof was proved as Ex. PW2/B. In such document Ex. PW2/B, number of Eicher tempo has been recorded as DL-1M-2602 and number of crane has been mentioned as HR-55L-1012.
23 Undoubtedly, PW2 Attar Singh is not an eyewitness. However, his deposition is of immense importance as he had noted down those two crucial numbers which eventually helped the police to reach the accused.
24 As regards the actual incident, PW2 Attar Singh does not have any direct knowledge as he himself did not witness the incident of beating. In his examination-in-chief, he revealed that Kanha Ram had told him that previous night, one tempowala had beaten up someone after tying him in the tempo. Defence has also not been able to discredit or impeach this witness in any manner whatsoever and I do not find any single reason to throw away the fact of FIR No. 79/12 PS Adarsh Nagar Page 8 recording of registration numbers of tempo and crane by PW2 Attar Singh.
25 Reverting to the testimony of other two eyewitnesses, PW17 Chandan Kumar was cross-examined by the prosecution with the permission of the Court and despite his such cross-examination, he claimed that it was wrong to suggest that he had told the police that he could identify the tempo driver. He also denied that he had told the police that tempo driver had tied one person behind the tempo and was beating him up with the help of belt. He also failed to identify the accused when specifically pointed out to him. Interestingly, in the later part of his cross-examination conducted by prosecution, he claimed that accused present in court, when such accused was specifically pointed out to him, was beating up one person after tying him in a tempo on the intervening night of the incident and he was the same who was seen next day taking away his, out of order, tempo with the help of crane. Surprisingly, this fact is completely unchallenged and uncontroverted. Thus, testimony of PW17 Chandan Kumar also confirms that he had seen one person tied in the tempo and his testimony also indicates the involvement of accused.
26 PW14 Kiran Pal was also cross-examined by the prosecution with the permission of the Court and in his such cross-examination, he admitted that he had seen that one tempo driver had tied a man from his both hands in the backside of the tempo with the help of a rope at about 11.30 PM. He also admitted that at that time other rehriwalas had asked that man as to why he had been beating up that man on which that tempowala told that such person had committed theft and he wanted to recover back such stolen articles from him. He also admitted that next morning the person, who was being beaten up, was found lying dead at the same place. He also admitted that one another rehriwala Kanha Ram had also got recorded numbers of the tempo and crane when in the morning said tempowala had brought one crane and had got his tempo towed away from there. He, however, did not identify the accused and denied that accused facing trial was the same person whom he had seen that night. He also denied that on 31.03.2012 police had come to him along with accused and then he had identified the accused.
FIR No. 79/12 PS Adarsh Nagar Page 9 27 His hostile testimony cannot be effaced altogether. On the contrary, it
also gives impetus to prosecution story. Undoubtedly, he has not been able to identify the accused but on other crucial aspects, his testimony is found to be in synchronization with the case of prosecution. His deposition indicates that he had seen the victim tied in a tempo. He also confirms that such tied person was being beaten up by the concerned assailant assuming him to be a thief. He also corroborates Kanha Ram and Attar Singh by claiming that Kanha Ram had got recorded numbers of tempo and crane next morning.
28 It has come on record that such tempo was towed away by crane in the morning of 26.03.2012. When accused Kanshu Yadav was examined under Section 313 Cr.P.C., he also admitted that he had got the tempo towed to a shop of mechanic.
29 In this regard, reference be made to the testimony of PW8 Shri Ram and PW9 Ramkesh. PW8 Shri Ram has deposed that he was in the business of providing crane service on hire basis and was having crane bearing no. HR-55L-1012. Such crane was in the name of his son Devender Kumar. He also claimed that Ramkesh was working as driver on such crane. He deposed that on 28.03.2012, police had come to him and made inquiries from him and he then asked his driver Ramkesh who told him that on 26.03.2012 at about 7.00 AM/8.00 AM, he (Ramkesh) had towed tempo no. DL-1M-2602 through crane from a vacant land and left the tempo near Rajasthan Udyog Nagar, Galaxy Toyota at the asking of the tempo driver. In his cross-examination, he also produced the registration certificate of such crane which has been proved as Ex. PW8/DA.
30 PW9 Ramkesh is a material witness and he has supported the case of prosecution and has even identified accused Kanshu Yadav as the one who had got his tempo towed that day. He has deposed that he was working as driver on crane bearing no. HR-55L-1012 and on 26.03.2013 at about 7.00 AM/8.00 AM, accused Kanshu Yadav came to his shop and told that his tempo no. DL-1M-2602 was out of order and requested him to drop the tempo by tow-chain at Rajasthan Udyog Nagar, GTK Road near Galaxy Toyota. He had taken his crane at a FIR No. 79/12 PS Adarsh Nagar Page 10 vacant land, Kewal Park and towed-chain the tempo to Rajasthan Udyog Nagar, GTK Road, Galaxy Toyota and received Rs. 600/- as hire charges from accused Kanshu Yadav. He also deposed that on 28.03.2012, he was called by the police and he went to PS Adarsh Nagar and identified the tempo and informed the police that it was the same tempo which he had towed that day at the request of accused. He identified the tempo from the photographs also. In his cross- examination, he also mentioned that date of towing away was 26.03.2012. It seems that due to some inadvertent typographical error, such date has been mentioned as 26.03.2013 in the examination-in-chief. I have seen the cross- examination of PW9 Ramkesh and it is very much evident that the factum of towing away of the tempo does not seem to be under any sort of challenge as no suggestion to the contrary has been put. It is also manifest from the cross- examination that accused also does not have any qualm with respect to the fact that he himself had made such request for towing of his tempo.
31 It thus becomes obvious that on 26.03.2012, tempo no. DL-1M-2602 was towed away by accused from a vacant land situated near Kewal Park to Rajasthan Udyog Nagar and PW9 Ramkesh was the driver of crane bearing no. HR-55L-1012 who had towed such tempo to Rajasthan Udyog Nagar at the request of accused.
32 It is also not in dispute that such tempo bearing no. DL-1M-2602 was owned by accused Kanshu Yadav only.
33 In this regard, reference be made to the testimony of PW5 Mukesh Kumar Jham, PW12 Rajesh Kumar, PW16 Sanjeev Kumar and PW22 Vipin Malik.
34 Such tempo was earlier in the name of PW5 Mukesh Kumar Jham who sold the same to accused Kanshu Yadav. There is no dispute in this regard as even accused admits such fact. As per record produced by PW16 Sanjeev Kumar, Junior Assistant, ARTO Baghpat, UP, such tempo bearing no. DL-1M-2602 was registered in the name of accused Kanshu Yadav.
FIR No. 79/12 PS Adarsh Nagar Page 11 35 Let me now see the various other facets and sequence of
investigation. In this regard, testimony of PW23 SI Rajeev Kumar and PW25 Insp. Virender Kadiyan is found to be of key importance.
36 PW23 SI Rajeev Kumar was posted at PS Adarsh Nagar at the relevant time and on receipt of DD No. 12A, he along with PW7 Ct. Pradeep and Ct. Pooran reached vacant land opposite Mandi out-gate near NDPL Office, Kewal Park Extension, Azad Pur. There they saw one person aged about 30-35 years lying dead. Injuries marks were there on his body and tattoos "Shiv Raj Singh" & "Om" were found engraved in Hindi on its right hand. PW23 SI Rajeev Kumar also met Kanha Ram and recorded his statement Ex. PW1/A and informed his seniors in this regard. He prepared rukka and handed over the same to PW7 Ct. Pradeep for registration of FIR and sent request to Crime Team to reach at the spot. He also prepared application for obtaining ownership details of vehicle bearing no. DL-1M-2602.
37 PW25 Insp. Virender Kadiyan was posted as SHO PS Adarsh Nagar and he has deposed that after the registration of the case, he took up the investigation and reached the spot along with his staff. He met SI Rajeev Kumar and other staff along with public persons. He was apprised about the circumstances of the case. He also inspected the unidentified dead body and also checked the clothes of the deceased for getting any clue regarding identification of the deceased. He prepared site plan Ex. PW25/A at the instance of Kanha Ram. He has also deposed about arrival of crime team. In this regard reference be also made to the testimony of PW11 SI Sanjeev Verma who has proved his crime scene report as Ex. PW11/A. Photographs were taken by PW10 Ct. Subhash and he has proved such photographs as Ex. PW10/B1 to B7 and negatives as Ex. PW109/A1 to A17.
38 PW25 Insp. Virender Kadiyan also lifted bloodstained earth and earth sample from the scene of crime and prepared requisite pullandas and sealed them with his seal. He has proved the seizure memos prepared by him in this regard. He has also deposed that he had recorded statements of other public witnesses including Kanha Ram, Chandan Kumar and Kiran Pal. He has also FIR No. 79/12 PS Adarsh Nagar Page 12 deposed about collecting of ownership details of tempo bearing no. DL-1M-2602 and of crane bearing no. HR-55L-1012. According to his deposition, initially, it was found that one Mukesh Kumar Jham was the registered owner of the tempo in question.
39 PW25 Insp. Virender Kadiyan then flashed wireless with regard to recovery of unidentified dead body in Delhi and all other States of India. He also obtained the fingerprints of the deceased and sent the same to SCRB, Kamla Market for the purpose of possible identification of deceased. However, no previous record/information regarding those fingerprints were found available in such data. Report in this regard has also been proved by him.
40 On 28.03.2012 he reached C-45, New Subzi Mandi and met Shri Ram Yadav and then he learnt that crane was driven that day by Ramkesh. Ramkesh was telephonically contacted who revealed that on 26.03.2012 in the morning, he had removed one tempo from vacant land near NDPL Power House to Rajasthan Udyog Nagar near Galaxy Toyota Showroom. Police accordingly reached near Udyog Nagar and found aforesaid tempo in abandoned condition. They searched for the tempo driver in the area but could not find him. Thereafter, Ct. Krishan was deployed to keep watch and vigil at the tempo who later on informed that one person had come near the tempo who looked like the driver of the tempo. Police then immediately reached there and apprehended that person i.e. accused herein. Accused was interrogated and his arrest memo, disclosure statement and personal search memo have been proved by Insp. Kadiyan. Such tempo was also seized vide seizure memo Ex. PW15/A. 41 As per further deposition of PW25 Insp. Virender Kadiyan, accused also produced one broken fan-belt from the backside of his tempo and informed that he had beaten up the deceased severely with the help of said fan-belt. Said fan-belt measuring 115 cms was seized. Its seizure memo has been proved as Ex. PW15/D. Accused was kept in muffled face and he led the police party to the scene of crime and pointing out memo Ex. PW15/F was prepared at his instance. Case property was thereafter deposited in the malkhana. As per further deposition of PW25 Insp. Virender Kadiyan, accused Kanshu Yadav refused to FIR No. 79/12 PS Adarsh Nagar Page 13 participate in judicial TIP and thereafter his police custody remand was taken.
42 On 30.03.2012 forensic expert Ms. L. Babyto Devi, SSO, FSL along with her team had reached PS Adarsh Nagar for inspection of the tempo. Such FSL team officials had also lifted bloodstains on gauze. Pullandas were also prepared in this regard.
43 Right here, it would be appropriate to make reference to the testimony of PW19 Ms. Babyto Devi who has deposed that blood was detected on the backside of the tempo which was lifted with the help of gauze cloth. Her Crime Scene Report has been proved as Ex. PW19/A. The exhibits were also examined by her only. As per FSL result Ex. PW19/B, blood was detected on Ex. 1 (earth), Ex. 3 (blood sample in gauze of the deceased), Ex. 4 (gauze cloth piece having dirty stains as picked up from the tempo), Ex. 5 (rubber belt) (fan-belt). Though blood was detected on the said exhibits but fact remains that when DNA profile was attempted to be generated, it could be generated only from Ex. 3 and not from the remaining three exhibits due to degradation of the samples. Nonetheless, fact remains that blood was also detected on fan-belt seized from the tempo of the accused and at the instance of accused and also from the tempo as such. It is also important to mention that testimony of such forensic expert is unrebutted and uncontroverted.
44 Photographs of the tempo were also taken and the same photographer i.e. PW10 Ct. Subhash was pressed into service who has proved the photographs as Ex. PW10/D-1 to D-9 and negatives as Ex. PW10/C-1 to C-9. At the time of such inspection of the tempo, Insp. Virender Kadiyan also seized two plastic ropes which were found tied at the corner of the tempo on the backside. These were the same ropes with the help of which deceased's hands were tied. These were taken into possession vide seizure memo Ex. PW15/H. On 31.03.2012 when accused was in police custody, he was taken to spot for investigational purpose where he was also identified by public witnesses, namely, Kanha Ram, Chandan Kumar and Kiran Pal.
FIR No. 79/12 PS Adarsh Nagar Page 14 45 Despite best efforts made by Insp. Virender Kadiyan, the identity of
the deceased could not be established. Hue and cry notice also did not yield any result and, therefore, after postmortem, body was cremated as unclaimed in Sarai Kale Khan Electric Crematorium.
46 PW25 Insp. Virender Kadiyan has further deposed that on 13.04.2012, PW5 Sh. Mukesh Kumar Jham, previous owner of the tempo came to PS and produced copies of documents relating to ownership of tempo which were seized. He has also mentioned regarding receiving of reply in this regard from Burari Transport Authority and from RTO, Baghpat.
47 Let me now come to the postmortem report. Reference be made to the testimony of PW20 Dr. Bhim Singh who had conducted the autopsy. On external and internal examination, Dr. Bhim Singh noted following injuries:-
External Examination
(i) Multiple contused abrasions reddish blue in colour curved shape over-lining and merging at places present all over the abdomen, chest back, hands, forearm, arm and or both lower limbs. Size was varying from 3cms x 1 cm to 26cms to 1 cm.
(ii) Multiple bruises all over the face and blackening of eyes was present.
(iii) Multiple bruises on left side of neck size varied from 6cms x 1 cm to 8cms x 4 cms.
(iv) Lacerated wound measuring about 3cms x 1 cm x 0.5 cm on front of penis.
(v) Lacerated would measuring about 2.5 cms x 1 cm x 0.5 cms on front of right leg.
Internal Examination Head: Effusion of blood present at places in scalp hair. Bones were intact and brain showed patchy sub arachnoid hemorrhage at places.
Neck: Effusion of blood present in sub cutaneous tissues.
Chest & abdomen: Effusion of blood present in skin and sub cutaneous issues below injuries over chest and back.
FIR No. 79/12 PS Adarsh Nagar Page 15 48 As per the opinion of PW20 Dr. Bhim Singh, the cause of death was
due to coma and shock consequent upon multiple injuries and all the injuries were antemortem, fresh in duration and could be caused by soft blunt object like whip and some injuries were caused by hard blunt object. Injuries were found sufficient to cause death collectively in ordinary course of nature. He has proved his postmortem report as Ex. PW20/A. He also deposed that on 25.05.2012 IO had made request for subsequent opinion and produced one sealed packet having seal of VK and on opening the sealed packet, he found one rubber belt having blood at places and it was measured by him. Such fan-belt was found to be of 115 cms in length and its outer surface was 1.6 cms in width and after examining such fan-belt, he opined that injury no. 1 and injury no. 4 as mentioned in the postmortem report were possible by the aforesaid rubber fan-belt. His such opinion has been proved as Ex. PW20/B. During trial, such fan-belt was also produced before the Court and shown to Dr. Bhim Singh who identified the same as Ex. P-1. In cross-examination, Dr. Bhim Singh also claimed that even only with the fan-belt, death could be caused as it depended upon the gravity of the injuries. He, however, claimed that in the present case, death could not have been caused only with the fan-belt but the injuries on penis could cause death due to vasovagal shock.
49 PW25 Insp. Virender Kadiyan also identified fan-belt as Ex. P-1 and two pieces of plastic ropes (Ex. P-3) with which deceased had been allegedly tied the tempo. He has also proved the wearing clothes of deceased as Ex. P-7. I have carefully perused the cross-examination of PW25 Insp. Virender Kadiyan and of PW23 SI Rajeev Kumar and I have not been able to find out any contradiction or anomaly or omission which may create any doubt in the veracity of the case of prosecution.
50 I have also perused the testimony of other police officials who chipped in from time to time. PW3 WHC Prafulla is the author of DD NO. 12A and she has proved the same as Ex. W3/C. PW4 SI Manohar Lal, Draftsman had prepared scaled site plan which has been proved by him as Ex. PW4/A. PW6 Ct. Ashraf was deputed to deliver the copies of FIR to senior police officers and to learned MM of the area. PW7 Ct. Pradeep has corroborated SI Rajeev Kumar as he FIR No. 79/12 PS Adarsh Nagar Page 16 along with Ct. Pooran had accompanied SI Rajeev Kumar to the spot. PW13 Ct. Mehandi Hassan had taken the sealed pullandas from malkhana of PS Adarsh Nagar to FSL. PW15 ASI Shashi Kumar and PW18 Ct. Krishan Kumar remained associated with the investigation when Insp. Virender Kadiyan arrested accused on 28.03.2012. PW21 HC Rakesh was posted as MHC(M) and he has proved relevant entries as appearing in Register No. 19 & Register No. 21. PW24 Ct. Dharmender was deputed to go to mortuary BJRM Hospital where doctor had given him blood sample in sealed envelope along with sample seal which were seized by the IO vide memo Ex. PW24/A. He is also one who had accompanied the dead body to Sarai Kale Khan Electric Crematorium and obtained receipt from there. Thus, all the vital aspects of the investigation have been duly proved.
51 I have scrutinized the testimony of both the defence witnesses. They both have been examined in order to show that accused remained with them from 25.03.2012 (8.00 PM) till next morning (7.00 AM).
52 DW1 Sanjay Yadav has deposed that he knew accused Kanshu Yadav and on 25.03.2012 accused had come to their shop at about 8.00 PM. At that time, Sattan Paswan was also present in the shop and accused remained with them and slept in that very shop that night and thereafter accused left next morning at about 6.00 AM or 7.00 AM. In his cross-examination, he admitted that accused was his fast friend. It is, however, not at all clear as to how he remembers such date of 25.03.2012 so distinctly. In his cross-examination, he admitted that he did not know his own date of birth or of any of his brothers or sisters. He also does not know date of his own marriage or the date of marriage of his such siblings. He failed to give any specific reason as to how he remembered such date so specifically. DW2 Sattan Paswan has also sung the same tune and has deposed that on 25.03.2012, he, Sanjay Yadav and accused had slept in the shop and when he got up on 26.03.2012, accused was not there. He also deposed that he had come to the court at the request of his friend Kanshu Yadav. Interestingly, in his cross-examination, he deposed that accused Kanshu Yadav had told him about the date of 25.03.2012 and 26.03.2012 which he accordingly mentioned in his examination-in-chief. He also admitted that it was correct that whatever he had deposed before the court was as per the advice FIR No. 79/12 PS Adarsh Nagar Page 17 given to him by accused Kanshu Yadav though, in the following breath, he volunteered that his deposition was as per his own knowledge as well. In his further cross-examination, he claimed that he did not know the date when accused Kanshu Yadav had slept in his shop and he had given the date as per information given to him by the accused. He also admitted that such dates were also apprised to Sanjay Yadav by accused. I would like to point out here that due to some oversight, year has been wrongly mentioned as 2015 instead of 2012 in the cross-examination of DW2 Sattan Paswan but fact remains that cross- examination of DW2 Sattan Paswan clearly indicates that both these defence witnesses are made up witnesses and their uninspiring testimony does not create any impact at all. Their deposition evidently seems to be a tutored one and is not of sterling quality at all and, therefore, I have no hesitation in rejecting the same.
53 In view of my foregoing discussion, it is very much clear that accused Kanshu Yadav was the owner of truck-type tempo no. DL-1M-2602. On the night intervening 25.03.2012 & 26.03.2012, he had parked the same at vacant land situated in Kewal Park Extension near NDPL Power House. Such tempo was out of order. It also becomes discernible that victim had been tied in said tempo in the rear portion with the help of ropes. These rope-pieces were also seized from same tempo. It is also very much perceptible that accused presumed him to be a thief and, therefore, tied him in his tempo to retrieve his stolen articles and also to know about his other accomplices. It also becomes evident that the fan-belt, which had been seized by the police from said tempo and which had been handed over to the police by accused himself, is the one which had been used for giving thrashing to the victim. Report of autopsy surgeon is unambiguous which signifies that injuries were ante-mortem and could be possible by soft blunt object like whip. In his subsequent opinion, Dr. Singh categorically claimed that injury no. 1 and injury no. 4 were possible by the fan-belt in question. Broken fan-belt is sort of ship only. Testimony of PW1 Kanha Ram also clearly indicates that beatings were given to that presumed thief. No suggestion to the contrary has been put to him. Moreover, victim had not been tied outside the tempo. He was rather tied in the rear side of the tempo and this could have been the handiwork of that person who owned and possessed such tempo and not by any outsider or stranger. Blood was also noticed and lifted from the tempo. PW19 L. Babyto Devi has FIR No. 79/12 PS Adarsh Nagar Page 18 categorically deposed that her unit had inspected the tempo and blood was detected on the backside of the tempo and such blood was lifted with the gauze cloth and was handed over to IO on 30.03.2012. Such memo has also been proved as Ex. PW15/G. PW19 L. Babyto Devi had examined the exhibits as well in the laboratory and she noticed blood on gauze cloth as well as on the fan-belt. Presence of blood in the rear of tempo as well as on fan-belt cannot be taken nonchalantly. These were recovered from the tempo of accused. . Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. A fact which is within the special knowledge of accused has to be established by him alone. Section 106 of the Evidence Act says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It was for him to have elucidated as to how the blood was found in the rear of his tempo, exactly at the same place where the victim had been tied and beaten up. He was also duty bound to clarify about the presence of blood on the fan-belt. Accused, in such a situation, cannot simply keep quiet or offer no explanation meeting the said incriminating material. His refusal to undergo judicial TIP also goes against him. Thus, complicity of accused stands proved to the hilt.
54 It is, however, still to be assessed and evaluated whether it's a case falling under Section 302 IPC or under Section 304 IPC?
55 Undoubtedly, as per the story emerged on record, accused believed the victim to be a thief. In his zeal to reclaim and retrieve the alleged stolen parts of his tempo, he displayed heartless and ruthless approach and thought of punishing the victim all by himself. It was late hour of the night and taking advantage of the same, he tied the victim in his own tempo and gave him thrashings. I can though very well understand that his prime interest and motive was to teach a lesson to such thief and to recover back his stolen articles and, therefore, perhaps he never wanted to eliminate him. At the same time, the manner in which victim was bludgeoned black and blue leaves no doubt in my mind that accused had clear knowledge that his such act might result in death of FIR No. 79/12 PS Adarsh Nagar Page 19 such victim. Death of victim is evidently homicidal. Accused is found to be the author of injuries though as per PW1 Kanha Ram, several other public persons were also beating up such tied person. I would hasten to supplement that degree of certainty of death, on most of the occasions, divides the species from the genus. The difference between culpable homicide and murder is very subtle. Both the offences include the elements of knowledge and intention. The main distinction depends upon the degree of risk to human life by the act. If death is a likely result of the act of offender, it is culpable homicide; if death is a sure result of the act of offender, it is murder.
56 Though there is not actual material on record which may suggest that victim was a thief yet believing what prosecution witnesses heard from accused at the time of incident, accused seemed to get enraged because of the theft of his articles from tempo. He, under the fit of rage, gave hammering to the victim. There also does not seem to be any real premeditation. Action of accused is deplorable and condemnable though I strongly sense that a fleeting impulse overpowered his logical thinking and raison d'être and in the heat of passion, he tied the victim and gave him whipping. Evidence on record does not conclusively establish that the injuries caused on the body of the deceased would have in all probability caused his death. Accused had no intention to murder the victim at all and he merely wanted to teach him a lesson. However, to his misfortune, the injuries proved to be grave and his nemesis succumbed to the same eventually. Keeping in mind the overall facts and circumstances of the case, I am inclined to hold that Exception no.1 attached to Section 300 IPC comes into play and makes it to be case of culpable homicide not amounting to murder.
57 Accordingly, accused is held guilty for offence under Section 304 (Part-II) IPC instead of Section 302 IPC. He is also, additionally, held guilty for offence under Section 201 IPC as he got his tempo towed away from the spot through crane in order to screen himself from the legal punishment.
FIR No. 79/12 PS Adarsh Nagar Page 20 58 Accused is, thus, convicted under Section 304 (Part-II) IPC and u/s 201 IPC. Announced in the open Court On this 15th day of October 2015. (MANOJ JAIN) Addl. Sessions Judge (FTC) North-West Distt: Rohini: Delhi FIR No. 79/12 PS Adarsh Nagar Page 21 FIR No. 79/12 PS: Adarsh Nagar State Vs. Kanshu Yadav 16-10-2015 Present. Sh. Sanjay Jindal, Ld Addl. PP for State. Convict in J.C. with counsel Sh. Anil Khosla. 1 Heard arguments on sentence. 2 Sh. Jindal has prayed for maximum dosage and has argued that convict does not deserve any leniency. 3 Sh. Khosla has, on the other hand, prayed for maximum compassion. He has reiterated that convict had no intention to kill anyone. He has also
contended that convict has no previous bad antecedents and he has a large family to support which comprises of his wife and three unmarried and unemployed sons. He has also apprised the court that convict happens to be the sole bread earner for them.
4 The case is of the year 2012 and as per the record, the convict was arrested on 28/03/2012 and remained in custody till 09/12/2014 in the present case.
5 However, I cannot be oblivious of the fact that the convict had bludgeoned the victim and had given him a very bad hammering and thrashing with broken fan belt. Even if the convict felt that victim was a thief, he had no business to become a supreme authority and to take law into his own hands and to handout instant punishment to him. Such fiendish act, having shades of stone age, cannot be tolerated in the modern era having a fully developed justice delivery mechanism.
FIR No. 79/12 PS Adarsh Nagar Page 22 6 To make the things worse, the identity of the victim could not be
ascertained despite best efforts made by the investigating agency. Thus, a young unknown person was done to death and the sinister and heartless act of the convict does not deserve any clemency.
7 Keeping in mind the overall facts and circumstances of the case, I am inclined to hand out maximum sentence to the convict. He is accordingly sentenced to undergo ten years rigorous imprisonment for offence u/s 304 (Part-II) IPC and a fine of Rs. 10,000/-. In default of payment of fine, he would further undergo simple imprisonment for a period of two months.
8 For offence u/s 201 IPC, convict is sentenced to undergo two years rigorous imprisonment with fine of Rs. 5,000/-. In default of payment of such fine of Rs. 5,000/-, he would further undergo simple imprisonment for a period of one month.
9 Both the sentences would, however, run concurrently and needless to say, the convict would also be entitled to benefit of Section 428 Cr.P.C. He be sent to jail under appropriate warrants.
10 A copy of judgment as well as of order on sentence be given to convict free of cost.
11 The tempo in question is lying seized. At one point of time, convict had moved an application seeking release of such tempo on superdari. Concerned Magisterial Court dismissed such application on 25/04/2012. I have made my queries from convict Kanshu Yadav as well as from his counsel Sh. Khosla and they still do not want to stake any claim over such tempo and it has been, therefore, conceded by Sh. Khosla that State would be at liberty to take appropriate steps with respect to the aforesaid case property i.e. tempo.
12 Tempo is accordingly confiscated to State and concerned SHO is directed to take requisite further steps in the matter. He would, however, be at liberty to ask the concerned financer company i.e. Shriram Transport Finance FIR No. 79/12 PS Adarsh Nagar Page 23 Company Limited to the effect whether it is interested in claiming the same as said tempo is under its hypothecation. A copy of this order be also sent to SHO concerned to do the needful.
13 File be consigned to Record Room.
Announced in the open Court
Today on 16th of October, 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
16-10-2015
FIR No. 79/12 PS Adarsh Nagar Page 24
List of Amicus Curaie
NAME PHONE NOS.
SH ASEEM BHARDWAJ 9891906707
SH ANKUR SHARMA 9871770767 AND 9868434948
SH DEEPAK SHARMA 9873465275
SH HIMANSHU BHUTTAN 9910037222
SH KAMAL SHARMA 9654509358
MS NEELAM SINGH 9811618325
SH RAHUL NAGPAL 9717356127
MS RACHNA AGGARWAL 9873032674
MS SADHANA BHATIA 9810643546
SH SHUBHAM ASRI 9818194040
MS SHIWALI GAUTAM 9891249161
SH SACHIN VATS 98999357709
MS SHEFALI SHARMA 9711113385
MS SANTOSH SIGH BERTHWAL 9971468838
MS USHA RANI 9899190305
MS URMILA YADAV REMAND ADVOCATE 9871685856
SH YASHVIR SINGH 9811618325
FIR No. 79/12 PS Adarsh Nagar Page 25