Delhi District Court
State vs (1) Suresh S/O Sh. Hari Lal R/O Village ... on 3 November, 2009
1
IN THE COURT OF SHRI DILBAG SINGH: ADDL. SESSIONS
JUDGE01(E): KKD COURTS: DELHI.
SC No: 62/07
Date of institution: 04.05.07
Date on which reserved for order: 29.10.09
Date of delivery of order: 29.10.09
State v/s (1) Suresh S/o Sh. Hari Lal R/o Village Beria Nagalampur,
PS Mallawa, District Hardoi, UP.
(2) Ram Prasad S/o Gaya Prasad R/o Village Rahim
Nagar Periana, PS Banthara, District Lucknow, UP.
FIR NO.687/06
PS Kalyanpuri
U/s 364A/120B/302/201/34 IPC
JUDGMENT :
1. Case of the Prosecution as disclosed from the report U/s 173 Cr.P.C is to the effect that on 23.11.06 at 3.32 pm. Const. Ved Pal of PCR informed Police Station Kalyan Puri that one Balram Sharma S/o Nand Lal Sharma R/o 8/146, Khichri Pur, Delhi has informed that his son Dhananjay aged 3 and ½ years has been taken away by his neighbour Suresh. DD No. 15A (Exhibited as Ex.PW4/A) was recorded by Duty Officer at PS Kalyan Puri and was 2 handed over to ASI Zile Singh for further action. ASI Zile Singh along with Const. Ajay Kumar proceeded for the spot. At about 4.30 pm hours Sh. Balram Sharma got lodged DD No. 20A (Exhibited as Ex.PW4/DA). On 24.11.06 Sh. Balram Sharma gave his statement to ASI Zile Singh to the effect that on 23.11.06 he was sleeping and his wife had been away from his house in connection with some domestic work. That she came back around 12.50 noon and asked as to where Dhananjay was. Sh. Balram Sharma stated that he might have been to school. That when school bag of Dhananjay was found at the house itself then suspicion arose and search for Dhananjay was made by him and his wife. That Dhananjay is wearing a full sleeves shirt of white colour, a full pant of Mehroon colour (Matmailla colour) and is 2.5 feet in height.
2. A case U/s 363 IPC was registered and search for Dhananjay was made. Usual methods of search in the form of sending of Wireless Message, publication of pamphlets / Ishtihar (Sore Goga) and their affixation at different public places, sending of 3 the information to the Police Stations through CRO about missing of Dhananjay, sending of photograph of Dhananjay to Missing Persons Squad, making of enquiries in different probable places etc. etc. were employed.
3. Supplementary Statement of Balram Sharma was recorded on 25.11.06 wherein he placed suspicion on accused Suresh, his neighbour. The reason due to which suspicion on Suresh was raised was that Dhananjay @ Monu was lastly seen in the company of accused Suresh by son of Balram Sharma namely Mritunjay. Another reason of suspicion was that initially Suresh was helping in the search of Dhananjay but he suddenly disappeared. It was also stated that the accused Suresh had disappeared after inquiries were made by the Police from him.
4. On 03.12.06 a Police Party consisting of Const. Prem Pal Singh, Const. Tej Bahadur was formed. This party along with complainant went to different probable places of availability of accused Suresh but Suresh could not be traced despite best efforts. 4
5. On 13.12.06 investigation was handed over to Insp. Mohan Singh. He along with const. Tej Bahadur went to the native village and other probable places of availability of Suresh but of no avail. He made various efforts to trace Dhananjay including intercepting of suspicious telephone numbers, publication of the information in the newspapers, issuance of hue and cry notice, declaration of award of Rs.25,000/, publication of photographs of Dhananjay along with accused Suresh in newspapers, search of accused at Lucknow, Hardoi etc., making of enquries from the accused persons involved in Nithari killings of children etc. etc.
6. On 14.1.07, in pursuance to the secret information, accused Suresh and Ram Prasad were apprehended from near Durga Puri Drain, Gali No. 8 at the instance of Secret Informer and complainant Balram Sharma. Both the accused persons made disclosure about commission of the offence and after completion of requisite formalities accused persons were arrested in the case. Disclosure statement of accused Suresh was reduced in writing. Accused 5 Suresh disclosed about taking of the child to the house of Sunita at Noida. He also disclosed about the conversation which took place between him and Sunita. He also disclosed about the manner in which Dhananjay was murdered in the nearby jungle of Noida (Sector 32). He also disclosed that child was done to death by him and Ram Prasad and thereafter he was put on fire in order to distroy the proofs. Accused Ram Prasad also made a disclosure statement on the similar lines. It was further disclosed that Dhananjay was kidnapped for the purpose of asking ransom from Sh. Balram Sharma.
7. Insp. Mohan along with accused Suresh and Ram Prasad after obtainment of necessary permission went to the disclosed place at Noida and in pursuance to the disclosure statement got the case converted to a case U/s 364A/302/201/120B/34 IPC. Insp. Mohan Singh got the spot inspected and prepared site plan without scale. He summoned the crime team, got the spot photographed and videographed. Fingerprints could not be obtained. Insp. Mohan 6 Singh seized 81 remains of the bones, burnt skull pieces, pouches of Ratna Khaini, 8 small and big stone pieces on which Dhananjay was burnt, burnt soil sample, earth control sample etc. Parcel No. 1 consisting of remains of burnt bone pieces, skull bones and pouches of Ratna Khaini (partly burnt) lying near the dead body was kept in LBS Hospital Mortury whereas other parcels which were given serial No. 2 to 5 were deposited in the malkhanna.
8. On 15.1.07 Police Remand of accused persons for one day was taken.
9. On 16.1.07 Post Mortem was got conducted on the remnants of the the dead body vide report No. 13/07. Spot of crime was got inspected by the Autopsy Doctor and the dead body was handed over to Balram Sharma. Statement of Smt. Sunita was got recorded U/s 164 Cr.P.C. On 19.1.07, in pursuance to an application dated 16.1.07 it was opined that possibility about Homicidal manner of death cannot be ruled out. Insp. Mohan Singh deposited the case property in Malkhanna, got the scaled site plan prepared. 7 Requirements for conduct of DNA test were fulfilled and accused persons were sent for trial.
10. After supply of copies to the accused persons, Ld. MM committed the case to the court of Ld. Sessions Judge and case was assigned to my Ld. Predecessor.
11. On 18.5.07 my Ld. Predecessor framed charges against the accused persons U/s 120B, 364 r/w 120B, 364A, 302 and 201 r/w 120B IPC. Accused persons pleaded not guilty to the charge and claimed trial.
12. In order to prove its case prosecution examined 24 witnesses in this case. I deem it pertinent to mention that serialing of the witnesses has not been appropriate in this case and PW2 has been given to two witnesses namely Smt. Sharda and Smt. Sunita. For the sake of convenience statement of PW2 Smt. Sunita will be read as PW2A. The witnesses examined are as follows PW1 Sh.Balram Sharma, PW2 Smt. Sharda, PW2A Smt. Sunita, PW3 Const. Ajay Kumar, PW4 HC Prem Pal Singh, PW5 Sh. Brij Mohan, 8 PW6 Sh. Vinay Kumar Singh, PW7 Master Mrityunjay, PW8 Sh. Ram Khilawan, PW9 Sh. Raj Bahadur, PW10 Const. Shiv Om , PW11 Cont. Tejpal Singh, PW12 Const. Jagdish, PW13 Const. Shiv Murti, PW14 Sh. Brijesh Kumar Pandey, PW15 Const. Ram Milan, PW16 SI Mahesh Kumar, PW17 Sh. Narender Rawat, PW18 ASI Jiley Singh, PW19 HC Narender Dutt, PW20 Insp. Mohan Singh, PW21 Ajay Gupta MM, PW22 A.K. Shrivastava, PW23 ASI Jai Ram Singh.
13. PW1 Sh. Balram Sharma is a material witness who has testified about the manner in which the deceased went msising and about the arrest of accused on 14.11.07. He has proved his report as Ex.PW1/A, arrest memos as Ex.PW1/B and PW1/C, personal search memos as Ex.PW1/D and PW1/E, disclosure statement of accused Suresh as Ex.PW1/F, receipt of remnants of the dead body of his son as Ex.PW1/G.
14. PW2 Smt. Sharda is the wife of PW1 and mother of the deceased. She has testified about the manner in which the deceased went missing and how the search was made for him. 9
15. PW2A Smt. Sunita is another very important material witness. Accused Suresh had taken Dhananjay to the house of this witness. As per her version, she had advised accused Suresh to return the child to his parents and Suresh had undertaken to do so before her.
16. PW3 is Const. Ajay Kumar who has accompanied ASI Zile Singh to house No. 8/146 in pursuance to DD No. 15A.
17. PW4 HC Prem Pal Singh is the Dutry Officer, who has proved the true copy of DD No. 15A as Ex.PW4/A. He has also testified about search of accused Suresh.
18. PW5 Brij Mohan is photographer who has testified about the leading of the Police Party, by the accused persons to the place of burning of deceased. This witness has proved the video reel as Ex.P1, which was prepared by him, vide which the accused persons had got the place of occurrence identified and remnants of dead body of deceased recovered.
19. PW6 Dr. Vinay Kumar Singh is the Autopsy Surgeon who 10 had testified about the manner in which he conducted the Postmortem on the dead body of deceased. During cross examination he has given the time since death as about 78 weeks with variation of one week. Since the testimony has some relevance, I deem it expedient to reproduce the examination in chief of the testimony of this witness verbatim: "On 16.01.2007, at 2.30 pm, I conducted postmortem on the body remains of Dhananjay s/o Sh. Balram Sharma R/o A5146, Khichri Pur, Delhi brought by Inspector Mohan Singh PS Kalyanpuri, Delhi. Body remains were identified by Balram Shamra and Hari Prasad Sharma. The alleged history of kidnapped on 23.11.2006. Body remains were found on 14.01.2007. Body remains were produced before me in a cardboard box making of Usha on the box. I opened the box and found three packets of bones and burnt plastic remains. On examination I found that bones remains were of forty five pieces of skull with both maxilla and mandible, 11 ribs of left side, 10 ribs of right side, two clavicle of right and left side, right and left scapula 8 cm incised remains of left and right humerus bone, 26 vertebrae out of which 7 were of 11 cervical 12, were of thorax, 5 were of lumber, 2 were of scral, both pelvic bones and parts of both elbow joints, both knee joints. On examination of teeth total ten temporary teeth and one permanent first molar teeth on irrupted inside bone and found. Age of bone examined by me were of 4 ½ years child. No definite opinion was possible after examining these charred bone remains about cause of death.
At the request of IO I had visited the scene of crime. I had also seen the photographs produced before me by the IO. Considering all these aspects possibility of homicidal death of the child cannot be ruled out. Postmortem report prepared by me to this effect is Ex.PW6/A, which bears my signature at point A. I had preserved upper part of both femur, maxilla, mandible an ten teeth for DNA testing, which was handed over to IO."
20. PW7 is the son of Balram Sharma. He is a witness of last seen.
21. PW8 Sh. Ram Khelawan and PW9 Sh. Raj Bahadur are witness concerning sale of Thaia (Place of business) by accused 12 Ram Prasad to brother of accused Suresh for a sum of Rs.30,000/.
22. PW10 Const. Shivam is a photographer who has proved the photographs as Ex. PW10/A1 to PW10/A23 and PW10/B1 to Ex.PW/B23.
23. PW11 Const. Tej Pal Singh has proved the copy of original PCR form as Ex.PW11/A vide which information about missing of Dhananjay was given to PCR, in which suspicion over Suresh was raised.
24. PW12 Const. Jagdish is a witness of link evidence, who has handed over the parcels after taking them from LBS Hospital to the IO. He has proved the seizure memo in this regard as Ex.PW12/A.
25. PW13 HC Shiv Murti has testified that on 23.11.06 he was posted as duty officer at PS Kalyanpuri. He has proved lodging of missing report by Sh. Balram Sharma of his son Dhananjay, copy of which is Ex.PW13/A.
26. PW14 Brijesh Kumar Pandey has testified that Balram Sharma is brother in law of his friend. That on 14.1.07 police 13 informed them remains of Dhananjay were traced. That on 16.1.07 autopsy of remains of Dhananjay got done in LBS hospital.
27. PW15 Ct. Ram Milan has testified that on the direction of SHO he collected seven parcels from the malkhana moharrar and deposited the six parcels in the laboratory and one was deposited in DNA department of that laboratory.
28. PW16 SI Mahesh Kumar has proved scaled site plan Ex.PW16/A as tyhe one having been prepared by him.
29. PW17 Narender Rawat has testified that on 16.1.07 he had been to the mortuary of LBS hospital and taken 810 photographs by digital camera. He identified three photographs as Ex.PW17/A to C.
30. PW18 ASI Ziley Singh has testified that he was the first IO of the case. He has deposed about the manner in which he conducted the investigation.
31. PW19 HC Narender Dutt has testified that on 24.11.06 he registered FIR no.687/06 u/s 363 IPC. He proved carbon copy of FIR as Ex.PW19/A. He proved his endorsement Ex.PW19/B. 14
32. PW20 Inspector Mohan Singh has testified that he was the IO of this case and deposed about the manner in which he conducted the investigation.
33. PW21 Sh. Ajay Gupta, Metropolitan Magistrate has testified that he recorded the statement of Sunita @ Shrimati w/o Sh. Lal Bahadur u/s 164 Cr PC vide Ex.PW21/A.
34. PW22 Sh. A.K.Srivastava, Assistant Director from DNA unit, Forensic Science Laboratory, FSL, Rohini has testified that on 29.03.07 exhibits of this case were assigned to him for testing. That he found that it was one plastic box sealed with seal of VKS containing Ex.1A i.e one piece of bone described as left femur bone and Ex.1B i.e one piece of bone described as right femur bone. That he prepared the DNA finger printing profiles for Ex.1A,1B and blood samples 2 and 3. That on result of examination it was found that alleles as from the source of Ex..2 (blood sample of Balram Sharma) and allele as from the source of Ex..3 (blood sample of Smt. Sharda) are matching with allele from the source of exhibits 1A and 1B i.e 15 pieces of bones. That on conclusion the DNA profiling performed on exhibits provided is sufficient to conclude that Ex.2 (blood sample of Sh. Balram Sharma) and Ex..3 (blood sample of Smt. Sharda) are biological father and mother of Ex.1A and 1B. That his DNA report is Ex.PW22/A. That allele data was prepared by him during the examination of exhibits is Ex.PW22/B.
35. PW23 ASI Jai Ram has testified that on 14.01.07 Inspector Mohan Singh deposited with him five parcels sealed with seal of MS. That he made entry in register no. 19 at serial no. 2822. That on 07.03.07 again Inspector Mohan Singh deposited with him three parcels duly sealed with seal of VKS. That he recorded entry at serial no. 2930 in this regard. That on 11.04.07 inspector Mohan Singh deposited with him one parcel and he made the entry in this regard at serial no.3022.
36. Statement of accused persons were recorded u/s 313 Cr PC without oath in order to give an opportunity to the accused persons to explain the circumstances appearing in 16 evidence against them. Accused persons have denied the case of the prosecution in its entirety and have submitted that they have been falsely implicated in this case.
37. Arguments were heard at the bar. Sh. Dasa Ram Advocate for accused Suresh has vehemently argued that prosecution has failed to establish its case beyond shadow of reasonable doubt and accused has become entitled to benefit of doubt. That in DD no. 15A recorded at the level of PCR, name of Suresh was there. That it has not been explained by the prosecution as to why the fact of Suresh taking away deceased is not mentioned in DD no. 20A. That why PW Balram Sharma did not make a mention about Suresh in Ex.PW1/A has not been explained by the prosecution and the same raises doubt w.r.t veracity of the case of the prosecution. Sh. Dasa Ram has laid a great stress on this aspect. He has also argued that PW Mritunjay has admitted in cross examination that he had been to PS on the date of incident as well as on the date of his deposition. He has argued that this fact is not there in the case of the prosecution as 17 according to the case of the prosecution statement of Mirtunjay was recorded u/s 161 Cr PC on 29.03.07. Similar argument has been with respect to Smt. Sharda PW2 whose statement has been recorded on 29.03.2007. Sh. Dasa Ram has also has also assailed the case of the prosecution on the ground that when admittedly SHO Rajeshwar was present during investigation why he has not been cited in the list of witnesses. It has been argued that testimony of PW20 is at variance with respect to age of the deceased and arrest of the accused persons when it is read in juxta position with other PWs. It has been argued that there is variance of one year concerning age of deceased and there is also variance about the time of preparation of arrest memo. According to the testimony of the witnesses on 14.1.07 at 3.00 pm, whereas PW20 testified that he remained at the place of arrest from 12.00 noon to 2.00 pm. Prosecution case has also been assailed on the ground that why UP police officials of sector 3132 Noida have not been examined. It has also been assailed on the ground that there is no independent witness joined during 18 investigation. Sh. Dasa Ram has argued that testimony of PW2A is not inspiring confidence; her testimony is not credit worthy for the reason that she has remembered only the dates concerning the present case; that neither she nor her husband has informed the police which would have been a normal conduct of a person placed in the situation of PW2A. Sh. Dasa Ram has assailed the recovery on the ground that it took place from an open place accessible to all. He has also argued that why children of Sunita were not examined or cited in the list of witnesses. It has also been argued that PW Sunita was pressurized by the police to depose to suit the case of the prosecution and her version is not a voluntary version. He also argued that accused Suresh was on inimical terms with PW2A Smt. Sunita and it is this reason for which she has deposed against the accused. Sh. Dasa Ram further argued that no witness from the neighborhood of the accused and complainant has been examined and this raises doubt in the case of the prosecution. Sh. Dasa Ram has not disputed the death and taking away of the deceased but has 19 argued that accused Suresh was not responsible for the same. Sh. Dasa Ram further argued that prosecution has failed to prove the motive on the part of the accused. That version of PW2A Smt. Sunia concerning motive is not believable in view of the fact that family members of the accused and accused had brought Sunita back to her village when she had eloped with a person other than her husband and for that reason she was carrying grudge against the accused Suresh.
38. Sh. Abdul Sattar Ld counsel for accused Ram Prasad has argued that prosecution has not brought on record sufficient evidence against accused Ram Prasad. That recovery has been planted upon him. That name of accused Ram Prasad is not there in the statement u/s 164 Cr PC. That there is no evidence of last seen against accused Ram Prasad. He has argued that place of recovery had become known to the police firstly through the disclosure statement of accused Suresh and hence for this reason accused Ram Prasad cannot be said to be connected with the recovery of 20 bones from section 3132, Noida, UP.
39. Ld Public Prosecutor on the other has refuted the submission made by Ld defence advocates and has submitted that prosecution has established its case beyond the shadow of reasonable doubt.
40. Before proceeding further, I would like to refer to some legal position and some important judgements, which will help in determining the case in hand.
41. In State of Karnataka Vs. David Rezario & Another AIR 2002 SC 3272, it has been held that presumption of facts is assumption resulting from one's experience of the course of natural events of human conduct and human character which can be made use of in ordinary course of life as well as in business of courts.
42. In AIR 1995 SCW 1325 ( para 49), it has been held that it is settled law under General Criminal Jurisprudence that section 105 and 106 place a part of the burden of proof on the accused to prove facts, which are within his knowledge. When the prosecution 21 establishes the ingredients of the offences charged, the burden shifts on the accused to prove certain facts within his knowledge.
Section 114 of the Evidence Act gives power to the court to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common natural course of events, human conduct and public and private business, in their relation to the facts of the particular cases. Perusal of the explanations attached to section 114 throws some more light on the field of presumptions.
43. There are other sections as well in the Evidence Act, which also help in determination of the facts in issue and for that purpose section 8, section 6, section 9, section 14, section 32 in particular and other sections in general help the court in determining the cases by using its reasoning power. The reason for enactment of the above referred sections is that no statute can provide for complete eventualities. Crimes are committed by the accused persons in darkness and every effort is made to conceal the incriminating facts. 22 The object of the law is to search for the truth and for that reason Hon'ble Supreme Court has given guidelines from time to time.
44. In the recent years Hon'ble Supreme Court has explained about the 'benefit of doubt doctrine'. Some of the judgements worth mentioning are being referred to infra.
45. In Sucha Singh Vs. State of Punjab AIR 2003 SC 3590, it has been held that the rule of benefit of doubt is to be based on reason and common sense and must grew out of the evidence in the case. That meticulously hypertensive approach is not warranted regarding the dictum that 'it is better to let 100 guilty plea escape than punish an innocent'.
46. In State of Punjab Vs. Karnail Singh, reported in AIR 2003 SC 3609, it has been mandated that the exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy the social defence. Justice cannot be made sterile on the plea that it is better to let 100 guilty person escape than punish an innocent. Letting a guilty escape is not doing 23 justice according to law.
47. In Gusa Singh Vs. State of Rajasthan, reported in AIR 2001 SC 330, it has been held that minor discrepancies are to be ignored and the benefit of doubt is not to be given on every drop of a hat. In this case, it was not mentioned about the dimension of the blood stains on the clothes and giving of benefit of doubt on this aspect was deprecated as seizure of blood stained clothes had taken place in consequence of the disclosure statement of the accused.
48. In State of U.P Vs. Ram Sewak, reported in AIR 2003 SC 2141, it was observed that on hypertechnical grounds and surmises, prosecution evidence of a sterling character could not be brushed aside and disbelieved to give undue benefit of doubt to the accused.
49. In K. Mochi Vs. State of Bihar, reported in AIR 2002 SC 1965, it was held that normal discrepancies in evidence due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence do not corrode the credibility of the witness. 24
50. In R. Babu Vs. State of Bengal, reported in AIR 2000 SC 908, it has been held that proof beyond reasonable doubt is a guideline in fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. In Anil Singh's case, reported in AIR 1988 SC 1998, it has been held that a Judge does not preside over a criminal trial merely to see that no innocent man is convicted, but also to see that a guilty person does not escape conviction. One is as important as the other. Both are public duties which the Judge has to perform.
51. In Orilal Liaswal 1994(1) SCC 3, it was observed that justice cannot be made sterile on the plea that it is better to let 100 guilty escape, since it is not doing justice according to law.
52. In Mohan Singh's case, reported in 1999(1) SCR 276, it has been held that all efforts should be made to find the truth as it is for this very object that courts are created. To search it out courts have been removing chaff and dust as these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this 25 protective layer to receive the benefit of doubt. So it is the solemn duty of the courts not to merely conclude and leave the case the moment the suspicions are created. It is onerous duty of the court, within permissible limits to find the truth. It means, on one hand no innocent man should be punished,but on the other hand to see that no person committing an offence should go scotfree.
53. In A. Abdul Kafir Vs. State of Karela, reported in 2004(9) SCC 333 and T. Shankar Prasad Vs. State of A. P 2004(3) SCC 753, it has been mandated that court should be wary of belated explanations under section 313 Cr.P.C.
54. In Raj Kumar Prasad Tamkar Vs. State of Bihar, reported in AIR 2007 SCW 295, it has been held that in the absence of sufficient and cogent explanation in the answers to the questions under section 313 Cr.P.C, the court would be entitled to consider the same as a circumstance against the accused.
55. In Trimukh Marnto Kirkam Vs. State of Maharashtra, reported in AIR 2006 SCW 300, it has been held that in the crimes, 26 which are committed in complete secrecy inside the house, nature and amount required to establish the offence cannot be of the same degree as required in other cases of circumstantial evidence. It was further held that silence on the part of the inmates of a house would become an additional link in the chain of circumstances.
56. In Mani Kumar Thapa Vs. State of Sikkim, reported in 2002 (7) SCC 157, the above points were reiterated and with respect to section 313 Cr.P.C, it was observed that failure of accused to explain any inculpating circumstance would form an additional link in the chain of circumstances.
57. In State of Maharashtra Vs. Suresh, reported in 2000(1) SCC 471, the position of law was again reiterated in detail with respect to Section 9, Section 27, Section 106, section 114 of Evidence Act, section 313 Cr PC etc. It was reiterated that false answers given by the accused can be counted as providing a missing link in the chain of circumstances.
58. Position with respect to circumstantial evidence is well 27 settled now by a three Judge Bench, decision of Hon'ble Supreme Court titled as Sharad Birdhichand Sharda Vs. State, reported in AIR 1984 SC 1622. It has been held that in a case of circumstantial evidence, the prosecution has to establish the following:
1) The circumstances from which the conclusion of the guilt is to be drawn should be fully established.
2) The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3) The circumstance should be of conclusive nature and tendency.
4) They should exclude every possible hypothesis except the one to be proved.
5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human 28 probability, the act must have been done by the accused.
59. I have carefully perused the records of the case and considered the submissions. First of all, I am taking the case with respect to accused Suresh. I am of the considered view that prosecution has established its case against accused Suresh beyond the shadow of reasonable doubt and there is no other conclusion possible except the conclusion of involvement of the accused in the commission of offence. The main grounds which go to show about the involvement of the accused Suresh in the commission of offence are in the shape of last seen evidence, abscondance of accused soon after the commission of offence, telling of lies by Suresh about the deceased and recovery at the instance of the accused persons. Evidence of DNA against accused Suresh is of clinching nature which fortifies the conclusion of involvement of accused Suresh in the commission of offence. I am discussing the evidence against the accused under the above mentioned categories in the following paras.
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60. In the report u/s 173 Cr PC, it was the case of the prosecution that Mritunjay had seen the deceased with accused on 23.11.06. Mritunjay was examined by the prosecution as PW7. My Ld Predecessor had tested the testifying capacity of Mritunjay. It was concluded by my Ld Predecessor after putting lot of questions and perusing the answers that PW7 Mritunjay was intelligent enough to understand the probable questions. It was also observed that PW Mritunjay was competent to testify. Accordingly, there is no hitch in placing reliance on the testimony of PW7 Mritunjay. Since examination in chief of this witness is not lengthy, I deem it expedient to reproduce it verbatim herein below: "My brother Dhananjay went missing. He is missing from last many days. He had gone along with accused Suresh, who is present before the court (witness had pointed out towards accused Suresh by raising his finger on him). When my brother Dhananjay went along with accused Suresh, at that 30 time my father was sleeping and my mother had gone some distance away from our house. Accused Suresh used to visit our house and used to stay there during night hours, hence he was known to me. Accused Suresh took away Dhananjay on the pretext (?) giving toffee to him (word 'of' is missing at the place of question mark). I told my parents that I had seen accused Suresh taking away Dhananjay.
Accused Suresh used to reside on rent in a room adjacent to our room".
61. From the aforesaid examination in chief it has become categorically clear that deceased was in the company of the accused and accused had taken away deceased on the pretext of toffee. There is no other inference possible from the portion quoted supra. An ordinary prudent man will draw this and only this inference. Onus therefore shifted on the accused to give the explanation particularly in view of the fact that deceased was a small boy of four years only. 31
62. This witness was cross examined at length running into three pages and nothing material which can be said to be favorable to the accused could be brought on record by the defence. During cross examination this witness disclosed other facts as well from which identity of accused Suresh is established beyond doubt. This witness clarified about his version in examination in chief that in the night accused Suresh used to sleep in his house. Assuming for the sake of argument that PW7 has contradicted himself on this aspect still the same is of no help to the accused for the reason that other sufficient facts have been disclosed by PW7 from which material aspect concerning last seen evidence stands established.
63. Submissions of Sh. Dasa Ram to the effect that case of the prosecution is suffering from the defect that version of PW7 is at variance concerning giving of information to the parents is of no help for the reason that material aspect of kidnapping of Dhananjay (accused took Dhananjay on the pretext of giving toffee) has remained intact.
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No doubt some variances are there in the testimony of PW7 but I am of the considered view that same are not at all qua material aspects as the fact remains that PW7 has not been shaken as far as taking of deceased by accused Suresh is concerned. An overall reading of the testimony including cross examination goes to show that this witness has stood the test of cross examination and has not been shaken qua material aspects. His confrontation with portion A to A of Ex.PW7/DA is of no help as this witness has remained firm on the aspect of taking away of deceased by the accused. Assailment of the testimony of this witness on the ground that, an inference is possible to the effect that mother of PW7 was present in the house at the time of taking away by accused of the deceased is of no help as this aspect was not got clarified from this witness and PW1 and PW7 have categorically testified about absence of PW2.
64. PW7 Master Mritunjay has testified that on the date of incident of kidnapping Suresh had come back to his house and this version is in consonance with the version of other witnesses as well 33 as with the report u/s 173 Cr PC and this aspect vouches about the creditibility of this PW 7. This witness stated that fact of taking of Dhananjay by accused was disclosed by him prior to the visit of Suresh. This version is also in consonance with the case of the prosecution and vouches about the trustworthiness of this witness.
65. PW7 Mirtunjay is a small child and despite this he has testified cogently, cohesively, boldly about taking away of deceased by accused Suresh.
66. Some variances here and there in the testimony of PW7 can be said to be minor irregularities at the maximum. This witness testified that he was not tutored by anyone today i.e on the date of deposition. My Ld predecessor has observed that the witness was oppressed by the defence and for that reason Ld defence counsel was asked to give further questions in writing. No question in writing was given on behalf of accused Suresh. Sh. Abdul Sattar Ld defence counsel for accused Ram Prasad, thereafter chose not to put any question.
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67. The above going discussion about the testimony of PW7 establishes that prosecution has brought credible evidence on record by virtue of this witness and the same is believable. Arguments of Sh. Dasa Ram to the contrary are rejected for the reason that same are not tenable when the testimony is read as a whole and in conjunction with the testimony of other witnesses. No court can be oblivious of the fact that PW7 is a boy of tender age and some minor natural variations cannot be used to discard the testimony of PW7. Moreover this cannot be done for another equally important reason and that reason is that other witnesses of last seen evidence have also testified in consonance with PW7 and have corroborated the crux of testimony of PW 7 i.e kidnapping by accused of Dhananjay.
68. Second witness of last seen evidence is father of the deceased, namely, Sh. Balram Sharma, PW1. This witness has testified in consonance with his version in Ex.PW1/A and further supplementary statements dated 25.11.06, 14.1.07 etc. Testimony of this witness can be categorized in the arena of res gestae. He has 35 testified that on 23.11.2006, at about 11:00 or 11:30 a.m, he was present at his house and was sleeping. That his wife reached home around 12:00 noon, who had gone about one hour ago from the house. That she made him to awake and inquired about the children. This witness told her that children must have been to school. This witness further testified that his wife went to the school and came to know that Dhananjay was not there in the school. This witness testified that both Dhananjay and Mrathyunjay were studying in M.C Primary School, Khichripur. With respect to last seen evidence, this witness has testified as follows: "When we inquired from Mritunjay then he told that Dhananjay was taken by uncle".
69. Thus, the above mentioned version of PW1 goes in complete consonance with the case of the prosecution put forth in its report U/s 173 Cr. PC. This version corroborates the version of PW7 Mriutunjay and there is no hitch again to observe that it has been established by the prosecution, beyond the shadow of reasonable 36 doubt that deceased was lastly seen in the company of the accused Suresh and natural corollary of the same is that onus shifted on accused Suresh to explain about the further movements of deceased Dhananjay.
70. PW1 testified that search for Dhananjay was made and PCR was informed around 3:30 p.m about missing of Dhananjay. He also testified that suspicion was placed on accused Suresh. PW1 Sh. Balram Sharma further testified that accused Suresh met him at the place near the tenanted accommodation and was inquired as to where he had left Dhananjay, the deceased. This witness has further testified that accused Suresh answered that Dhananjay had not gone with him. That accused Suresh helped in tracing out Dhananjay for about 1½ hour. This testification inclines me to observe that PW1 a witness of worthy of belief.
71. There is force in the argument of Ld. P.P that PW1 Sh. Balram believed the explanation of accused Suresh and for that reason did not suspect accused Suresh till his abscondance. That he 37 believed accused Suresh in preference of the version of his son Mritunjay and for that reason did not make a mention about Suresh in Ex.PW1/A after making of such mention of DD no. 15A. I deem it pertinent to mention that PW Ziley Singh was a witness to make clarification concerning mention and non mention of name of accused Suresh in DD no. 15A and DD no. 20 and in the absence of anything having been asked from him, defence cannot be given any benefit qua the same.
72. Version of this witness concerning last seen evidence has remained unshaken, when this witness was crossexamined at length by Sh. Dasa Ram advocate. At first page of crossexamination, this witness has been asked about the post event facts relating to the search of the accused. At page second of crossexamination also, questions on the same aspect have been asked. At page third of crossexamination, dt. 24.10.2007, this witness testified that on 24.11.2006, he had stated before the police in the report that his son Mrayunjay had informed that Dhananjay was taken away by accused 38 Suresh. Although as per report u/s 173 Cr PC, it happened on 25.11.06, still this version of PW1 again reaffirms the veracity of the last seen evidence and contradiction about date is natural human error. It has come over the record in the testimony of PCR officials that suspicion on accused Suresh was placed as is so recorded in Ex.PW11/A.
73. During further crossexamination also, nothing fruitful came out. This witness was suggested that accused was implicated deliberately. No other suggestion touching upon the last seen evidence has been given. Thus, it can be said without any hitch that accused admits the version of PW1 concerning taking away of Dhananjay by him on 23.11.2006 from H.No. 8/146, Khichripur.
74. Above discussion leads to the irresistible conclusion that PW1 is a witness worthy of belief and arguments to the contrary are rejected.
75. PW2 Smt. Sarda, wife of PW1 has testified inconsonance with the version of PW1. She has also testified inconsonance with 39 the prosecution case as put forth in the report U/s 173 Cr. PC. She has corroborated the version of PW7 & PW1 in its material particulars. She at the first page of her examinationinchief testified that she had been away from her house on 23.11.2006 around 9:45 a.m for some job (9:45 p.m has been inadvertently typed and it should be 9:45 a.m). This witness further testified that both her sons were present at home, when she had left the house. That on her return, she found that the children were not present at her house and her husband was sleeping. She further testified that she questioned her husband, regarding the whereabouts of children and her husband told her that they might have been to school. She further testified that she went to school and did not find Dhanajay in the school. That she questioned Marthyunjay about Dhananjay, who replied that accused Suresh had taken away Dhananjay from the room. I quote the testimony of PW2 in this regard, herein below: "Mritunjay replied that Suresh uncle had taken away Dhananjay from the room. I returned home and found that accused 40 Suresh was not present at his home".
76. This witness further testified that accused Suresh came thereafter and on questioning told that he had not taken Dhananjay with him. Her version is in complete consonance with PW1 as far as material aspects are concerned.
77. The above discussion of examinationinchief of testimony of PW2 Smt. Sarda, further brings last seen evidence on record and the onus shifted on the accused Suresh to explain about the future movements of deceased.
78. PW2 Smt. Sarda was crossexamined at length. She has stood the test of crossexamination. She reiterated that her son Mritunjay had informed her that Suresh uncle had taken away Dhananjay with him on the date of incident. She testified on the lines of PW1 concerning visit of accused Suresh and his joining in the search of Dhananjay. She denied the suggestion that she was deposing falsely at the instance of her husband. She denied the suggestion that accused Suresh had not taken her son. She denied 41 the suggestion that accused was falsely implicated by her husband. Suggestion of false implication by her husband is a very vague suggestion. No reason was given as to why he did so. Nothing was brought on record from which it can be said that PW1 and accused were on inimical terms.
79. Assailment of testimony of PW2 Smt. Sarda on the ground that she has not deposed on the lines of PW1 is of no help, as the irregularities pointed out in the testimony of this witness are not the material irregularities. Such like irregularities are bound to take place, when the witnesses come to depose after a long lapse of time. Moreover, picturesque deposition is not possible as human mind is not a computer. It is well known that same facts are perceived differently by different persons. It is also well known that capabilities of perception and reproduction are different of different persons. The irregularity that this witness testified that accused Suresh was taken by the police on two occasions on 24.11.2006, one at 4:00 p.m and other at another point of time prior to 4:00 p.m, is of no help, as this 42 is not a contradiction going to the root of the case. The reason to say so is that this is a fact concerning post event incidents. Similarly the argument that PW1 has not testified about taking away of Suresh to PS is of no help for the same reason as two persons cannot give the exactly same version. Argument that PW7 Mritunjay has testified that he had been to the PS on 23.11.2006, whereas his mother PW2 has testified that Mritunjay had been to the PS on 24.11.2006 is again of no help, as the contradiction is a minor and natural one. Moreover this aspect placed a duty on the defence to have clarification from PW ASI Ziley Singh as it was he who would have detailed the reasons for variations on this aspect. No questions have been asked from PW ASI Ziley Singh in this regard. Similar is the fate of the arguments that how PW2 has testified about eloping of accused Suresh from the custody of the police, which has not been so testified by PW1, as the same is not a material contradiction. The fact remains that accused Suresh was questioned by the police on 23.11.2006 and this witness might have taken the questioning as 43 police custody of accused.
80. Thus the above going discussion of testimony of PW2 also establishes about last seen evidence of Dhananjay being taken by accused Suresh.
81. Next witness concerning last seen evidence is PW2A Smt. Sunita, who is none other then the cousin sister of accused Suresh. She has testified that accused had visited her on Thursday, when she was not present at her home, as she had gone to the house of her landlord to wash clothes. That she came to her tenanted accommodation at the house of Jagat Singh, Sector31, Noida and found that accused Suresh was present there along with a boy. That said child was about 45 years old. This witness further testified about the conversation, which took place about cooking of meat etc. Thereafter, this witness stated as follows: "accused Suresh came to my house at about 6:30 or 7:00 p.m...... said boy addressed Suresh as uncle. I questioned Suresh, who that boy was.
44Suresh informed me that the said boy was son of his neighbour. I questioned Suresh as to why he had brought the said boy and his parents might be puzzled. Suresh replied me that he had to take money from the parents of the said boy. For that purpose he had brought the said boy with him. I advised Suresh that he should not indulge for money and he should return that boy to his parents.
I prayed before him that my husband was not at home. We had come in Delhi for earning our livelihood. Again I requested him to return the boy to his parents. Suresh informed me that his associate was present at some distance away from my house and he will hand over the boy to him.
Saying so, he took said boy with him and left my house at about 7:00 p.m. When I resisted that I will inform other persons about the fact then Suresh 45 assured me that there was no need to inform anybody and he would return the said boy to his parents. He immediately left my house with that boy...."
82. The above discussed and quoted testimony of PW2A Smt. Sunita establishes beyond reasonable doubt the fact that deceased was taken to Noida, Sector31 by the accused. Testimony of PW 2A takes care of all the defects pointed out by Sh. Dasa Ram, in the testimonies of PW1, PW2 and PW7 vis a vis last seen evidence. This witness identified the photograph of the deceased Dhananjay Ex. P1, as the one who was brought by accused Suresh to her house.
The identification of the photograph of deceased coupled with the discussion of the testimony of PW2A establishes it beyond doubt that deceased was in the company of the accused. Testimony of PW2A confirms the conclusion in a clinching manner, which was arrived at by me while discussing the testimonies of PW7, PW1 & PW2.
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83. During crossexamination, this witness could not be shaken and has remained firm in her version. She has stated that none had tutored her today. She testified that photograph Ex.P1 was not shown to her on the date of deposition by any person, outside the court. She was asked certain questions about her marriage with Mahender which she replied in the manner from which it could be inferred that defence failed to elicit anything favorable to it.
84. PW2A Smt. Sunita was again crossexamined at length on 30.10.2007. She reiterated that she was not tutored by the police to make a statement in particular line. She testified about giving a statement by her before the Magistrate. She was asked about her marriage again, which is not of much relevance. She denied the suggestion that accused Suresh had not brought any child to her house. She denied that she had not sent back Suresh along with the child, asking him to return that child to his parents. She denied the suggestion that accused had not told her that said child was abducted by him. She denied the suggestion that accused Suresh 47 had not told her that he would hand over the child to his associate. She denied that she was tutored by the police to make a statement before the Magistrate or before the court. She denied the suggestion that she was inimical to accused Suresh and she has deposed falsely on account of the fact that she was taken away by Suresh and his family members from the village.
85. The main ground of assailment of the testimony of this witness is that she has deposed falsely because she was the earlier wife of jeth (brother in law) of sister of accused. However, this ground in itself is no ground to discard her testimony. The actual rule of appreciation in this regard is that testimony has to be perused with extra care and caution. I have done so and despite taking extra care and caution, I have found the testimony quite trustworthy and reliable. Every reasonable prudent man will take the view taken by me on an overall reading of testimony of PW2A.
86. The above going discussion of testimony of PW2A, leaves no manner of doubt in my mind to conclude without any hitch that 48 deceased Dhananjay was taken away from Khichripur and from there he was taken to Sector31, Noida to the house of PW2A and from there to some other place, exclusively known to the accused Suresh. Natural corollary is that onus shifted on accused Suresh to disclose about the future movements of deceased Dhananjay. As he has failed to do so, the natural inference is that accused is guilty of kidnapping and the offence U/s 363 IPC stands proved by the prosecution.
87. Another circumstance against accused, which goes to prove his involvement is the absconding of accused after the occurrence. There is plenty of evidence on record, which has gone unrebutted, which goes to show that accused Suresh absconded from Khichripur on 23.11.2006 and thereafter he was traced with great difficulty on 14.01.2007. In the report U/s 173 Cr. PC, it is categorically mentioned about the absence of the accused. The facts mentioned in the report U/s 173 Cr. PC coupled with the documents placed on record, including the publication in the newspaper and publication of 49 proclamation 'Ishtehar sore Goga", containing the photographs of accused Suresh as well as the deceased Dhananjay, establish the absence of the accused from 23.11.2006 onwards. Version of PWs in this regard clearly establish that accused absconded on 23.11.2006. PW18 ASI Zile Singh has testified that accused Suresh was not found at the given address. He has testified that announcement in the area of Kalyan Puri by way of loudspeaker were made. It is not the case of the accused that he was available at his house after 23.11.2006 onwards and thus there is no hitch at all to observe that prosecution has established abscondence of the accused from his house from 23.11.2006 to 14.01.2007. I am clear in my mind that mere abscondence is not a factor to be considered against the accused but in the present case abscondence coupled with last seen evidence assumes importance.
88. Other circumstance, which is of vital importance is the recovery of the remnants of the body of the deceased, which took place at the instance of the accused Suresh and accused Ram 50 Prasad.
89. PW20 Inspector Mohan Singh has categorically testified that on 14.01.2006 (wrongly typed as 14.01.2006 and should be 14.01.2007), accused were apprehended at gali No.8, Durga Puri in pursuance to a secret information. That accused was identified by the complainant. This witness further testified that accused Suresh made a disclosure statement Ex.PW1/F. This witness testified that both the accused persons disclosed about cremating of dead body of deceased Dhananjay in the forest of Noida, falling between Sector 31 and 32. Place of cremation (is in the vicinity of sector 31 and this fact has a causal connection with last seen evidence of PW2A, who resides at Sector31, Noida). This witness further testified that accused persons led to the place of cremation and the act of leading to the place of cremation was got vediographed and photographed. These aspects were discovery of facts, coming within the ambit of section 27 of the Indian Evidence Act, as so explained in detail in Pulikuri Kottaya and Ors. v. Emperor, AIR 1947 Privy Council 67. This 51 witness further testified that accused persons pointed out towards a cemented drain, which was lying dry at the time of pointing out. This witness testified that at the place, pointed out by the accused persons, remains of dead body including burnt pieces of bones were found. PW20 collected the bone pieces and sealed the same after making a parcel with the seal of MS. This witness explained that father of deceased, namely, Balram Sharma was not joined in recovery proceedings, as he became too disturbed to accompany them.
90. Recovery of bones at the instance of the accused persons, thus stand established by the prosecution beyond the shadow of reasonable doubt from the testimony of PW20. This witness was crossexamined at length by Sh. Dasa Ram. This witness was asked about non joining of public persons, but the same is of no help, as it is common knowledge that public persons these days do not join the investigation proceedings, particularly in serious cases. Otherwise also in India there is a common tendency to keep one away from the 52 police investigation. Experience has shown that the public persons who joined the investigation had to suffer a lot in terms of their harassment, inconvenience, loss of their valuable time so on and so forth. Moreover, I.O has got the proceedings of recovery photographed and videographed, which is a better substitute of public witnesses. Videographer was a public witness, namely, Brij Mohan PW5.
91. PW5 Sh. Brij Mohan has testified about the recovery of bones at the instance of accused persons. Relevant testimony of this witness is being reproduced herein below: "accused persons led the police party to forest near a drain. Both the accused persons pointed out towards a place, where burnt bones of a child were lying".
92. This witness was crossexamined at length and nothing favorable to the accused persons came in the testimony of this witness. This witness was asked questions about handcuffing of the accused persons which he has answered naturally and gave the 53 natural clarification about the same. This witness has testified that one photographer was also there with the police. Had this witness not been present at the spot, then this deposition about photographer would not have been there at all and this disclosure of PW5 in cross examination vouches about not only credibility of this witness but also presence at the spot.
93. It has also come on record in the testimony of PW5 that video real was viewed by my Ld. Predecessor. The observations of my Ld. Predecessor are of great help and I am reproducing the same: "(with the help of T.V, Panasonic Camera, the aforesaid video real was played in the court, wherein the aforesaid accused persons are seen leading the police party to the place, where remains of Dhananjay were lying. At their instance, burnt bones were collected by the police and seized, which fact are depicted in the aforesaid video reel)."
94. PW5 was crossexamined at length. Nothing fruitful came 54 visavis accused persons. A bare perusal of testimony of PW5 coupled with the observations of my Ld. Predecessor extracted above, I have no hesitation in my mind to observe that recovery of bones took place at the instance of the accused persons. Arguments to the contrary and assailment of the testimonies of Pws touching upon the above mentioned aspect is of no help in view of the above going discussion.
95. PW10 Ct. Shiv Om was the photographer, who had taken photographs numbering 23. PW10 has proved the positive of photographs as Ex.PW10/A1 to A23. He has also proved the negatives as Ex.PW10/B1 to Ex.PW10/B23. PW10 could not be shaken during cross examination. His testification about preparation of video reel would not have been possible, had the recovery not taken place.
96. Recovery of bones has taken place from a deserted place which is a forest and it can be concluded without any hitch that accused persons were having the exclusive knowledge of the bones 55 and this aspect vouches about creditibility of case of prosecution. Version of PW5 that recovery took place from a forest has gone unchallenged and Sh. Dasa Ram has wrongly argued that place of recovery was an open place accessible to all.
97. PW11 has supported the case of the prosecution. Versions of PW 12 to 14 have not been challenged. PW 15 and PW16 have also proved their respective versions attributed to them. Similar is the case with respect to PW17 and PW18 has not been cross examined qua DD No. 15A, 20, Ex.PW1/A and supplementary statement which was a sine qua non for raising the arguments in this regard. PW19, PW21 and Pw23 have also proved their respective roles assigned by the prosecution to them. Defence has not challenged their versions seriously and there is no hitch in observing that prosecution has succeeded in proving the roles attributed to these witnesses during investigation.
98. The bones were sent for DNA test by Inspector Mohan Singh. Prosecution has examined Sh. A.K. Srivastava with respect to 56 DNA. This witness has testified that on 29.03.2007, exhibits of case FIR No. 687/06 of PS Kalyan Puri were received in the office of Director FSL, Rohini Delhi for DNA finger printing report and were assigned to him. This witness testified that Ex.1A & Ex.1B were left femur bone and right femur bone. This witness further testified that blood sample of Sh. Balram Sharma and Smt. Sarda, the parents of the deceased were collected and DNA finger printing profiles of Ex.1A, 1B & blood samples Ex.2 & 3 were prepared. This witness further testified that on result of examination, it was found that the allele as from the source of Ex.2 (blood sample of Balram Sharma) and allele as from the source of Ex.3 (blood sample of Smt. Sarda) are matching with allele from the source of Ex.1A & Ex.1B. This witness further testified that DNA profiling performed on exhibit was sufficient to conclude that Sh. Balram Sharma and Smt. Sarda are the biological father and mother of deceased. This witness has proved his report as Ex.PW22/A. This witness has proved the allele data report as Ex.PW22/B. 57
99. Testimony of this witness has gone unchallenged and uncontroverted. Sh. Dasa Ram Ld. Defence Counsel has not challenged the varacity of the report. He has not disputed that the bones recovered were not that of deceased. So accused Suresh stands connected with the commission of offence beyond the shadow of every reasonable doubt.
100. Thus, from the above going discussion, there is no hitch present in my mind to conclude that accused Suresh is guilty for commission of murder of deceased Dhananjay. Fact of death of deceased stand established from the DNA report and the aspect that in the postmortem report definite cause of death is not there, is not of consequence , as the only and only inference, which arises from the facts and circumstances of the case is that accused kidnapped the child and when he was asked by PW2A to return the child to his parents, accused Suresh at the advice of his associate killed him in order to destroy the evidence and thus he is liable for the offences U/s 363/302/201 IPC.
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101. Although in the testimony of PW2A, it has categorically come that accused has stated before PW2A that he had brought deceased Dhananjay as he had to take money from his parents and this aspect brings on record the intention, present in the mind of the accused concerning illegal use of deceased Dhananjay, still I deem it expedient to award benefit of doubt to accused u/s 364A.The reason for doing so is traceable in the disclosure statement of the accused. In the disclosure statement it is the case of the prosecution that plan of murder had to be made in preference of return of the child to his parents at the advice of coaccused Ram Prasad as child would have exposed Suresh to the parents of deceased concerning his deed of kidnapping.
102. Coming to the arguments advanced by Sh. Dasa Ram. Arguments concerning mention and non mention of name of accused Suresh in DD no. 15A, DD no. 20A and exhibit PW1/A are not tenable for the reason that clarification should have been sought from ASI Ziley Singh in this regard which has not been so done. No 59 doubt ASI Ziley Singh should have taken care to ask from Sh Balram Sharma as to why he had not mentioned about the name of Suresh in DD no. 20A and Ex.PW1/A and this is a lapse on the part of the IO. However, the question which arises is as to whether benefit of the same should go to the accused. I am of the considered view that benefit of lapse on the part of the IO in this case should not go to the accused as this lapse does not go to the root of the case. It is well settled that administration of justice should not be dependent on the lapses committed by the IO if the lapses are curable. In the present case the lapse committed by the IO is of curable nature as no explanation from IO was taken by the defence and there is other overwhelming evidence of clinching nature against accused Suresh. Thus the main argument of Sh. Dasa Ram goes as the same is an afterthought. Argument concerning recording of statement of PW Mritunjay and PW Smt. Sharda on 29.3.07 despite the fact that both these witnesses have stated that they had been to the PS on the date of incident is again of no help as the same is a minor irregularity 60 not going to the root of the case. It is the testification in the court which matters and is decisive. Testimony of PWs in the court clinchingly establish the guilt of the accused and on that aspect the witnesses have not been shaken. Thus the arguments to the contrary are rejected. Argument concerning non citing of SHO Rajeshwar is again of no help as it is the quality of the testimony which matters and not the quantity. Testification of SHO Rajeshwar would have been another support to the case of the prosecution. However, settled legal position is that testimony of single witness can be made the basis of conviction provided the same is trustworthy and reliable. In the present case testimonies of PW1, PW2, PW2A and recovery witnesses are of clinching nature and do not require any further support for arriving at the conclusion concerning culpability of the accused. So the arguments to the contrary are rejected.
103. Argument that variation about age of the deceased has surfaced on the record is of no help as it is not material as to whether the deceased was 3 and 1/2 years old or 4 years old. Arguments 61 concerning variance being there in the testimony of PW20 concerning his remaining at the spot of recovery is of no help as this was a natural variation. Police Officials have to appear in many cases and there are always chances of mixing of facts of one case with the other. Moreover human memory fades with the passage of time and this aspect has to be kept in mind by the court, while considering the testimony of a witness. Incident of recovery took place in the beginning of the year 2007 and witness PW20 came to depose in the court after a period of more than 2 years. Thus variation of one hour, two hour with respect to point of time and variation of one or two days with respect to dates cannot be said to be material. So the argument is rejected. Arguments concerning non joining of UP Police Officials of Sector 31 and 32 Noida, is again of no help, as it was not statutorily required to be done so. Argument concerning joining of public witness has been adverted to in the operative portion of the judgment as well. However, for the sake of disposal of argument, I observe that non joining of public witnesses is 62 not a sin qua non for the prosecution and legal position is well settled in this regard. Arguments that testimony of PW2A is not inspiring confidence is not tenable as I have found the testimony of PW2A convincing and natural. There was no reason with her to go to police as so contended because accused Suresh had undertaken before her that child will be returned to his parents. Argument that recovery has taken place from an open space is not tenable as the place of recovery is a forest. Argument concerning non examination of children of Sunita is again of no help as it is the quality which matters and not the quantity. Section 118 of the Indian Evidence Act mandates that no particular number of witnesses are required to prove a particular fact and this takes care of the arguments of Sh. Dasa Ram to the contrary. Argument that PW Smt. Sunita was pressurized by the Police to depose suiting to the convenience of the case of the prosecution is not tenable as during cross examination she has categorically testified that she had deposed on her own and without any tutoring of any nature whatsoever. Argument concerning 63 Suresh being on inimical terms is not tenable. First reason is that no proper proof with respect to enmity has been brought on record. If it is taken that she was on inimical terms with accused Suresh even then she has stood the test of cross examination. Proper position of law with respect to appreciation of testimony of an interested and inimical witness is to the effect that testimony of such a witness is to be perused with extra care and caution and it is well settled that if on extra care and caution, the testimony is found to be believable then it can be made the basis of conviction, even if it is the sole testimony. Arguments that motive has not been proved by the prosecution is not tenable as firstly motive has come in the testimony of PW2A. Motive can otherwise be also inferred as accused took deceased by alluring him for a toffee. Even otherwise it is well settled that conviction can take place even if the prosecution has not established the motive on the part of the accused. It can be presumed that motive on the part of the accused was there. His helping the parents of the deceased on the date of the incident goes to show that he was concealing so 64 many things from the parents of the deceased and this fact speaks volumes about the intention of accused Suresh. Thus the arguments in this regard are rejected. No other argument was advanced.
104. Coming to the case of accused Ram Prashad. I am not in agreement with Ld. Public Prosecutor that prosecution had established its case against accused Ram Prashad beyond the shadow of reasonable doubt. No doubt a very strong suspicion arises with respect to involvement of the accused Ram Prashad in the commission of the offence for the reason that recovery of bones took place at the instance of both the accused persons. However, in view of the fact that accused Ram Prasad was not physically seen by PW2A Smt. Sunita in the vicinity of her house, this fact coupled with the fact that no witness of the prosecution has seen deceased Dhananjay in the company of Ram Prasad, at any point of time, accused Ram Prasad is being awarded benefit of doubt. Prosecution has not brought on record any last seen evidence viz a viz deceased and accused Ram Prashad. Story of the sale of place of business 65 i.e. Thaia does not connect the accused Ram Prashad with the commission of offence. In the absence of last seen evidence, I deem it expedient to award benefit of doubt to accused Ram Prashad as strongest suspicion cannot take place of legal proof. However, I deem it pertinent to mention that I am not disbelieving the recovery having been got affected at the instance of both the accused persons and I am placing it on record that recovery of bones took place at the instance of both the accused persons as is evident from the observation of my Ld. Predecessor after viewing the videography of the incident of recovery. However, recovery in itself without any other evidence as is the case with respect to accused Suresh is not sufficient to connect accused Ram Prashad, clinchingly with the commission of offence. Accordingly I am awarding the benefit of doubt and acquitting him accordingly.
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105. In view of the above mentioned discussion accused Suresh is convicted for the offence punishable U/s 363/302/201 IPC and accused Ram Prashad is acquitted.
Announced in open court (Dilbag Singh)
on 29.10.2009 Addl. Sessions Judge01(E):
Karkardooma Courts: Delhi.
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IN THE COURT OF SHRI DILBAG SINGH: ADDL. SESSIONS JUDGE01(E): KKD COURTS: DELHI.
SC No: 62/07 State v/s (1) Suresh S/o Sh. Hari Lal R/o Village Beria Nagalampur, PS Mallawa, District Hardoi, UP.
FIR NO.687/06 PS Kalyanpuri U/s 364A/120B/302/201/34 IPC ORDER ON SENTENCE:
1. I have heard Ld. Counsel Sh. Dasa Ram and the convict on the point of sentence. Ld. PP has also been heard.
2. Ld, Counsel for the convict has stated that convict is 27 years of age. That convict has no previous criminal record. That convict is the sole bread earner of the family. That convict is married and having a large family to support consisting of his old aged mother, three brothers, three sisters, wife and three children. That convict was doing the work of ironing the clothes and was earning Rs.150/ per day. That convict is very poor fellow and is in J.C. since beginning. That convict be sentenced leniently.
3. On the other hand, Ld. Public Prosecutor has submitted that offence committed by the convict is quite serious in nature and no leniency should be shown in the matter. That convict did not think for a moment before kidnapping the 3 ½ year old child and thereafter killed the said child.
4. I have carefully perused the record of the case and considered the submissions. Before adverting to sentencing aspect, I deem it expedient to advert 68 to legal situation first.
5. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, has provided apposite guidelines in this regard. In this judgement reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
6. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
7. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society and victim on the one hand and that of the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.
8. I have tested the facts of this case on the anvil of above mentioned legal position. The fact that convict did not think for a moment while kidnapping the small child and after kidnapping, caused the murder of the said child, is an 69 aggravating circumstance.
9. Keeping in view the facts and circumstances discussed above, I deem it expedient to sentence the convict to undergo RI for life u/s 302 IPC and a fine of Rs.50,000/ In default of payment of fine, convict shall further undergo to RI for a period of two years.
10. Convict is further sentenced to undergo R.I. for a period of seven years and a fine of Rs. 5000/ u/s 363 IPC. In default of payment of fine, convict shall undergo RI for a period of six months.
11. Convict is sentenced to undergo RI for a period of three years and a fine of Rs.3000/ u/s 201 IPC. In default of payment of fine convict shall undergo further RI for a period of three months.
12. All the sentences shall run concurrently. Benefit of set off under section 428 Cr.P.C be given to the convict. A copy of judgement and order on sentence be supplied to the convict free of cost. File be consigned to record room.
13. In case of recovery of fine, a sum of Rs.40,000/ shall go to the parents of the deceased after prescribed period of limitation.
Announced in the Open Court (DILBAGH SINGH) 3rd day of November, 2009. Additional Sessions Judge :
Karkardooma Courts: Delhi.