Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 25 November, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 99/1
Unique Identification No. 02404R0279232010
State
Versus
1) Arjun Pandit
S/o Sh. Rameshwar Dayal
R/o Mohalla Gol Nagar,
Old Subzi Mandi,
Behind statute of Gandhi
Jalesar, District Eta, U.P.
2) Raju Panwar
S/o Sh. Balbir Singh
R/o G32, Prem NagarI,
Kirari Suleman Nagar,
Delhi. ...............(since juvenile)
3) Sunny Khatri
S/o Sh. Madan Lal
R/o U block, Prem NagarI,
Kirari Suleman, Delhi. ............(since not arrested)
FIR No. 258/2010
PS -Shalimar Bagh
U/s. 302/392/397/120B/411/34 IPC
Date of institution of the case: 03/11/2010
Arguments heard on: 30/10/2013
Date of reservation of order: 30/10/2013
Date of Decision: 12/11/2013
SC No. 99/1 1
JUDGMENT
1. DD No. 19B was recorded on 17/07/2010, at about 9.35 a.m. on receipt of information from wireless operator through intercom that PCR had informed that at AN31/A, Shalimar Bagh, DDA Flat, one lady is lying without clothes in the house, having cut throat, which was received from telephone no. 9312696296, and that police be sent. Copy of this DD was handed over to SI Baljeet Singh, who alongwith Constable Abhimanyu left for the spot. Addl SHO also headed for the spot on government motorcycle with driver HC Ram Singh.
2. Accordingly, they reached at the spot i.e. Flat No. AN 31A, ground floor, Shalimar Bagh. The door of the house was found open. In the left side of the lobby, in a bedroom, one lady was found in naked condition, on the bed. On inquiry, her name was revealed as Anita Gupta, wife of Chaman Lal. Dead body was inspected. Spot was also inspected. Offence u/s.302 of IPC was found to be committed. Rukka was prepared by Inspector Kanwar Singh Yadav, Addl. SHO. It was sent for registration of FIR through HC Ram Singh with request to handover the investigation to Inspector Kanwar Singh Yadav.
3. DD No. 13A was recorded at about 12.15 day to the effect that FIR No. 258/10, u/s. 302 was going to be registered on receipt of rukka from Addl SHO Kanwar Singh Yadav through HC Ram Singh. DD No. 14A was also recorded at 1.05 p.m. day to the effect that after registration of FIR No. 258/10, u/s. 302 of IPC, original rukka and computerized copy of FIR was going to be sent to Addl SHO Kanwar Singh through HC Ram Singh and Constable Ajay on government motorcycle No. DL1SN4139 was going to deliver the special reports to ld. MM, Joint C.P. N.R and DCP, NW.
4. During investigation, rough site plan of the place of occurrence was prepared. Scaled site plan was also got prepared. The dead body was inspected. Spot was also inspected. No eye witness was found present at the spot. Crime team and dog squad was called at the spot. Dead body and the place of occurrence were got SC No. 99/1 2 photographed. One wrist watch of silver colour, which was found on the left hand of the deceased, having words "Jerlon Quartz" on the dial, one golden colour ring, two golden colour bangles, which were found to be worn in the right hand and another ring were seized by preparing a memo. One broken piece of bangle of brown colour, which was lying on the bed and another broken piece of bangle of pink colour, which was found on the floor were also seized by preparing a memo. One bunch of hair, which was found to be lying near the door of the bathroom, was also seized. One ball pen of grey colour, which was lying in between the legs of the deceased and some tablets of tic tac spearmint were also seized. Two packets of condom, which were lying beside the T.V., containing three condoms each, three condoms and one cream, on which fruit cream was written were seized by preparing a memo. Blood was found lying near the bed. It was lifted and seized by preparing a memo. One piece of bed sheet, which was lying spreaded on the bed, was cut as earth control and was seized. Remaining blood stained bed sheet was also seized by preparing a memo. One gents underwear of coffee colour of make TT Jazz, having stains, lying near the wall, was also seized by preparing a memo. One light blue colour shirt, having checks of red and blue and label of "Taj Tailor Jalesar label" on collar and blood stains on pocket, and one white colour handkerchief, having blood stains, were found lying on the sheet of toilet. Same were seized by preparing a memo. Dead body was sent to the mortuary of BJRM hospital for postmortem. Request for postmortem was given. Brief facts were prepared. Dead body identification statements were recorded. Blood sample, sample seal and vaginal swab of the deceased were also seized by preparing a memo. Death report was collected. Crime team report was collected.
5. Accused Raju Pawar @ Rocky was also arrested in this case on 22/07/2010. His personal search was conducted. He also made disclosure statement. He also pointed out the place of occurrence. He also got recovered one mobile phone, which was given to him by accused Arjun Pandit, which was looted after committing murder of a lady in Shalimar Bagh in flat No. 31A. Accused Raju Panwar @ Rocky SC No. 99/1 3 was declared as juvenile vide order dated 23/08/2010 of ld. MM.
6. On 25/08/2010, accused Arjun Pandit was arrested in this case. His personal search was conducted. He also made disclosure statement. He also pointed out the place of occurrence. Pointing out memo was prepared in this regard. Accused Arjun Pandit also pointed out the place, where he had concealed the dagger like knife, with which, they had committed murder and got recovered the dagger like knife. Pointing out cum recovery memo was prepared in this regard. Sketch of the dagger was prepared. One gold chain was also got recovered by accused Arjun Pandit from one Ram Narain, to whom, he had mortgaged the same. It was seized by preparing a memo. TIP of the gold chain and mobile phone was got conducted. Call details of mobile phone no. 9811683932,9266365261, 9350385814 and 9718663382 were obtained. PCR form was collected. Exhibits were sent to FSL and FSL result was obtained.
7. Accused Sunny Khatri could not be arrested despite issuing of NBWs and process u/s. 82 of Cr.P.C.
8. On completion of investigation, chargesheet was filed against the accused persons U/s. 302/392/397/120B/411/34 IPC. Case was committed to the Court of Session on 12/11/2010 and was received on 18/11/2010. On 03/05/2011, charge u/s. 120B of IPC and another charge u/s. 302 read with Section 120B of IPC, u/s 392 read with Section 120B of IPC and u/s. 397 read with section 120B of IPC was framed against accused Arjun Pandit, to which, they pleaded not guilty and claimed trial.
9. To prove its case, prosecution has examined PW1 to PW27 in all. Statement of accused was recorded u/s. 313 Cr.P.C., wherein he has denied the case of the prosecution and has stated that he is innocent and has been falsely implicated in this case. In defence, accused has examined DW1 Ramwati and DW2 Maya Devi.
10. I have heard learned APP for the State, learned defence counsel for the accused and have gone through the material placed on record with evidence adduced. SC No. 99/1 4 Finding qua offence u/s. 120B IPC and u/s. 302 read with Section 120B of IPC and u/s. 392 read with Section 120B of IPC and u/s. 397 read with Section 120B of IPC:
11. Case started with information recorded by PW8 ASI Pushpa as DD No. 19B regarding one lady without clothes, having cut throat at 1031, Shalimar Bagh, DDA Flats, Delhi. This DD was given to SI Baljeet Singh, who alongwith Constable Abhimanyu reached at the spot. Addl. SHO also left in government vehicle with driver/HC Ram Singh. Copy of DD is Ex. PW8/A.
12. According to PW7 Krishan Kumar Gupta, deceased Anita was his sister, who was residing at H.No. AN31A. On 17/07/2010, at about 9.15/9.20 a.m., while he was going to his shop and reached in front of the house of his sister, he saw main gate was not locked, so, he thought that his sister would be inside the house. Hence, he rang the door bell, but she did not come out, at which, he tried to push the door to see whether it was locked from inside or not. On pushing the door, it opened and he went inside. He sister Anita was lying on bed in naked condition and her throat was cut. There was injury mark on her breast also. The almirah was open and the articles were lying scattered. Blood was lying near the dead body. He immediately informed the police on 100 number and also informed his niece Preeti, married daughter of his sister.
13. PW7 has further deposed that police came. His niece Preeti also came. PW7 has further deposed that on 15/07/2010, his sister Anita was having birthday and Preeti told that Anita was wearing gold chain in the neck, two finer rings, two bangles, nose pin, wrist watch alongwith tops in the ears. She was also having two mobile phones, one was of TATA and another was of Reliance bearing no. 9350385814. Both these mobile phones were missing. Crime team was called. Scene of occurrence was got photographed. Dead body was removed to BJRM hospital. From the spot, police had collected one blood stained handkerchief, one blood stained shirt, one gents underwear, bunch of hair and broken pieces of bangles. SC No. 99/1 5 Ball pen, one dibba and two packets of condom and blood stained bed sheet were also taken into possession. Wrist watch, two bangles and one ring were also taken into possession.
14. PW7 has further deposed that on the next day, he reached at the mortuary of BJRM hospital and identified the dead body of his sister Anita Gupta vide memo Ex. PW7/A. Dead body was received vide memo Ex. PW4/B. He has also identified the exhibits, which were collected from the spot.
15. PW3 Preeti Arora has stated that on 15/07/2010, she had attended the birthday of her mother. At that time, she had seen her mother wearing gold chain with locket, pair of tops, two finger rings, two bangles, nose pin and one wrist watch. On 17/07/2010, she received information that her mother had been murdered. She went to the house of her mother and saw that her mother was lying dead. Blood was lying near the dead body. She also saw injury marks on the person of her mother. At that time, gold chain, pair of tops and nose pin were missing from her body. However, wrist watch, bangles and rings were found on the body of her mother. Her mother was having two mobile phones, one was TATA having number 9266365261 and other of Reliance having number 9350385814. Her uncle Krishan Gupta was also present there.
16. PW3 has further deposed that on 06/10/2010, he was taken before ld. MM at Rohini Courts, where she had identified the jewellery articles i.e. gold chain, which she has identified before the court also and has identified her signatures on the TIP proceedings Ex. PW3/A. She has also identified one mobile phone make TATA as Ex. P2, gold chain as Ex. P3 and wrist watch, two gold finger rings and two gold bangles as Ex. P1.
17. PW4 Anoop Kumar has identified the dead body of Anita Gupta on 18/07/2010 vide his statement Ex. PW4/A and received the dead body vide memo Ex. PW4/B.
18. PW18 Krishan has stated that in the year 2010, he was doing wrestling SC No. 99/1 6 and earlier, he used to attend Desu Akhara in Pratap Bagh. He was knowing Anita 34 years prior to the incident. Whenever he used to go for jogging in a park near AL market, Shalimar Bagh, Anita also used to come there and they also used to talk each other. He had given a phone on his ID no. 9266365261 to Anita. Anita was residing at H.No. AN/31A, Shalimar Bagh. He used to talk with Anita on the mobile phone.
19. Learned defence counsel has contended that according to the depositions of the witnesses, Anita was doing business of selling of bedsheets and artificial jewellery, but no stock of bed sheets or artificial jewellery was found in the house during investigation. It is further contended that position, in which, Anita was found in her house, speaks volume about the same. Condoms were found there and she was not having any source of income, so, PWs have deposed falsely in this respect. It is further contended that even one of the mobile phone was given by PW18 Krishan, so, the house used to remain open or was reachable within anyone was quite possible. It is further contended that almirah of the room was found open and articles were lying scattered as per PW7 Krishan Kumar Gupta, but it is not disclosed by this witness or by PW3 Preeti Arora, daughter of deceased, as to what was missing from the almirah. The dead body was found wearing certain gold articles and same were found missing, which seems to be improbable. If the articles, which were found missing could have been removed by the person, who had committed murder, then other articles, which were found on the dead body, could have also been removed by those persons.
20. It is further contended that according to PW13 SI Baljeet Singh, deceased was found wearing one wrist watch, two golden rings and two bangles and if it was a case of robbery or the person, who had committed murder, had removed the gold jewellery, out of which, one gold chain allegedly has been recovered, then these gold articles could have also been removed from the body of Anita, which had not happened, hence, it shows that alleged gold chain has been planted on the accused.
21. Learned defence counsel has further contended that according to cross examination of PW7 Krishan Kumar Gupta, when police came, it came to their SC No. 99/1 7 knowledge that bolts of the latch were found lying on the floor and latch was hanging inside the door, whereas PW13 SI Baljeet Singh, who also reached at the spot on receiving DD, has not found any such situation. When they reached at the said flat, the double door i.e. jali gate and main gate and wooden gate of the flat were found open. So, it is doubtful whether it was a case of forceful entry in the house of Anita or she had invited someone, who had committed her murder.
22. According to PW13, one gents underwear was lying towards the right side of the bed on the floor. One shirt was lying in the toilet seat of light blue and red colour check. One handkerchief was also lying there, having blood stains. In the other bed room, one gadda was lying alongwith bed sheet. One broken piece of bangle was lying on the bed sheet. One broken piece of bangle was lying on the floor. In the lobby, one salwar suit was lying. Bunch of hair was also lying near the clothes in the lobby. On a table in the lobby, one water bottle and two glass tumbler were also found. The jewellery articles from the body of deceased were removed. Dead body was sent to BJRM hospital through HC Gajraj Singh. Inspector K.S. Yadav had prepared rukka and sent HC Ram Singh to PS for registration of the case. One ball pen, one condom, one cream dibbi were also lying at the spot. All these exhibits were taken into possession after preparing their separate pullandas with the seal of "KSY" and were seized vide memos Ex. PW13/A to Ex. PW13/J.
23. PW13 has further deposed that on 18/07/2010, he accompanied Inspector K.S. Yadav to the mortuary of BJRM hospital, where postmortem was conducted and dead body was handed over to Krishan Gupta, brother of deceased and one Anoop Arora, son in law of deceased. After the postmortem, doctor handed over the sealed pullandas containing blood sample, vaginal swab alongwith sample seal, which were seized vide memo Ex. PW13/K.
24. PW8 ASI Pushpa has stated that while she was working as duty officer, on 17/07/2010, at about 12.15 noon, she received rukka from HC Ram Singh, on the basis of which, she recorded FIR of this case, copy of which is Ex. PW8/B. She also SC No. 99/1 8 made endorsement on the rukka Ex. PW8/C and handed over the same to HC Ram Singh to further handover the same to Addl. SHO Inspector Kanwar Singh Yadav. PW1 SI Mahesh Chand has stated that on 17/07/2010, he was working as shift in charge, Mobile Crime Team, NorthWest district. On that day, he reached at the spot with crime team. He inspected the scene of occurrence. Scene of occurrence was got photographed by crime team photographer Ct Subhash. He prepared his report and handed over report Ex. PW1/A to the IO. PW2 Constable Subhash was part of the team. He has taken photographs of the place of occurrence, which are Ex. PW2/1 to
53.
25. PW10 Constable Ajay, on 18/07/2010, had delivered special report of the FIR to the concerned MM, DCP, northwest and Joint CP of PHQ.
26. PW11 lady Constable Urmila was working at PCR HQ on 17/07/2010 and at about 9.30 a.m., on receiving a call from one Krishan Kumar Gupta, she filled up PCR form and sent the same on net. Copy of PCR form is Ex. PW11/A.
27. PW16 Constable Gajraj Singh, on 17/07/2010, was called by Inspector K.S. Yadav. He reached at the spot and removed the dead body of Anita Gupta to the mortuary of BJRM hospital. On the next day, after postmortem, dead body was given to the relatives.
28. None of these witnesses have been cross examined by learned defence counsel in any manner.
29. In view of above, from the position of the dead body of Anita Gupta, which was found naked on the bed, it seems that there was no possibility of forceful entry in the house and PW7 Krishan Kumar Gupta has not deposed truly before the Court that bolts of the latch were found lying on the floor and latch was hanging inside the door because no such situation was found by PW13 SI Baljeet Singh, who had reached at the spot on receiving DD entry. It seems that PW7 Krishan Kumar Gupta has tried to give the case a colour of robbery to divert the case from the character of his sister Anita Gupta, in which position, she was found. She was SC No. 99/1 9 residing alone in the house and at that time, condoms and cream were also found there. So, there could not be any possibility of forceful entry in the house.
30. At that time, according to PW13 SI Baljeet Singh, one shirt was found lying on the toilet seat, of light bluered colour check. One handkerchief was also lying there, having blood stains. The shirt was having label of "Taj Tailor Jalesar". Accused Arjun Pandit also belongs to Jalesar. The recovery of the shirt and handkerchief from the sheet of the toilet of the house of deceased has not been disputed in any manner. Accused has also not explained about the presence of shirt, having label of "Taj Tailor Jalesar" in the house of deceased.
31. According to FSL report Ex. PW25/A and Ex. PW25/B, shirt and handkerchief, having brown stains Ex. 6A and Ex. 6B were examined. These were found having blood on the same. Handkerchief was found having human blood of "A" group, whereas blood group of human blood on shirt could not be ascertained. Ex. 7 i.e. brown gauze cloth piece sealed with the seal of hospital was also examined. According to Ex. PW15/B, at serial no. 7, Ex. 7 was blood sample of the deceased. According to report Ex. PW25/B, it was found having human blood of "A" group, so, it is proved by the prosecution that deceased was having "A" group blood, which was found on the handkerchief, which further was found lying with the shirt of accused Arjun Pandit on the sheet of the toilet in the house of deceased Anita Gupta. Arrest of the accused persons:
32. According to PW13 SI Baljeet Singh, on 22/07/2010, he joined investigation of this case with Inspector K.S. Yadav. Call details of mobile number 9350385814 of deceased Anita and of another mobile no. 9811683932, on which incoming and outgoing calls were made from the phone of deceased Anita were collected. Efforts were made to find out the user of mobile phone no. 9811683932, but the same could not be found. It is also came to know that in the morning of 16/07/2010, call was made from mobile no. 9811683932 on mobile no. 9718663382. As per location, they came to know that address of the user was Prem Nagar, Kirari, SC No. 99/1 10 Delhi, at which, they reached at H. No. G32, Prem Nagar, Kirari, where one Raju Panwar met them. They made inquiries from him, who told that this mobile phone was of his father and it was being used by him. He further told that mobile No. 9811683932 was of his friend Sunny Khatri and he used to talk with Sunny Khatri and that on 16/07/2010, he also talked with Sunny Khatri. Raju Panwar also told that he alongwith Sunny Khatri and accused Arjun Pandit had murdered a lady in Shalimar Bagh. Hence, he was arrested in this case vide memo Ex. PW12/A. His personal search was conducted vide memo Ex. PW12/B. He also made disclosure statement Ex. PW12/C.
33. PW13 has further deposed that in furtherance of his disclosure statement, accused Raju Pawar got recovered one mobile phone, without battery and without SIM, ESN no. 49 of TATA company and told that it was given to him by accused Sunny Khatri and Arjun Pandit alongwith Rs. 5000/ after committing murder. The mobile phone was sealed in a pullanda with the seal of KSY and was seized vide memo Ex. PW12/D. Thereafter, they tried to find out accused Arjun Pandit and Sunny Khatri, but they could not be traced out. Thereafter, accused Raju Pawar also pointed out the place of occurrence, so, pointing out memo Ex. PW12/B was prepared. Thereafter, police party came back to PS. Accused was locked up and case property was deposited in the malkhana.
34. PW13 has further stated that on 25/08/2010, he also joined the investigation with IO and on that day, he alongwith IO and HC Jai Bhagwan reached at Kirari, Prem Nagar, in search of accused Arjun Pandit and Sunny Khatri. House of accused Sunny Khatri was found locked and while searching the accused persons, one secret informer met them and told to the IO that one of the accused Arjun Pandit had gone towards railway station. On receiving this information, they alongwith secret informer reached at Nangloi railway station, where on seeing accused Arjun Pandit, secret informer pointed out towards him. On seeing them, accused Arjun Pandit tried to slip away, but he was overpowered and after interrogation, he was SC No. 99/1 11 arrested vide memo Ex. PW12/F. His personal search was conducted vide memo Ex. PW12/G. He also made disclosure statement Ex. PW12/H and in furtherance of his disclosure statement led the police party towards the backside of railway station, from where, he got recovered one dagger, which was used by him in the commission of the offence. Sketch of the dagger was prepared Ex. PW12/I. It was sealed in a pullanda with the seal of KSY and was seized vide memo Ex. PW12/J. Thereafter, accused led the police party to Suleman Nagar, Prem Nagar, Kirari, at a house, where he had pledged the gold chain for Rs. 7,000/. At that time, on seeing a person sitting on a mobile shop, accused Arjun Pandit pointed out towards him as the same person, to whom, he alongwith his coaccused Sunny Khatri had pledged the gold chain of deceased for Rs. 7,000/. The police party came to know the name of said person as Ram Narain, who confirmed the pledging of gold chain with him by accused Arjun Pandit and produced the gold chain before the IO.
35. PW13 has further deposed that at that time, Ram Narain had also told that accused Arjun Pandit was the same, who had come to him alongwith one more person Sunny Khatri and had pledged the gold chain for Rs. 7,000/. Thereafter, accused Arjun Pandit also pointed out the place of occurrence vide memo Ex. PW12/L. Thereafter, they came back to PS and case property was deposited in the malkhana. Accused was locked up.
36. PW14 Ram Narain has stated that it was 8th month of the year and date was 25th. One and a half year back, police came to him with accused Arjun Pandit at his mobile shop and asked him whether accused Arjun Pandit was known to him. He told that accused was not known to him. Again, police officials had asked him as to whether one Sunny Khatri was known to him and he told that Sunny Khatri was known to him as he used to visit his shop and also used to purchase mobile phone coupons from him. Police officials asked him to accompany them to PS for identification of Sunny Khatri. Thereafter, they reached at PS Shalimar Bagh. Sunny Khatri was not present there. Police officials also asked him as to whether he was SC No. 99/1 12 having chain and he told that he was having chain, which was mortgaged to him by Sunny Khatri on the pretext that his mother was not well. The chain was having tanka, which was mortgaged with him for a sum of Rs. 7000/ about 2½3 months before the day, when accused Arjun Pandit was brought to his shop by the police. PW14 has further deposed that chain was taken into possession. It was sealed and seized vide memo Ex. PW12/K. He has also identified the gold chain before the Court as Ex. P3.
37. PW14 has been cross examined by ld. APP as he has not supported the case of the prosecution. In the cross examination also, he has admitted that on 25/08/2010, police came to him with accused Arjun Pandit. He had handed over the gold chain and his statement was recorded on 25/08/2010. He had gone to PS on 24/08/2010 and on seeing accused Arjun Pandit at his shop on 25/08/2010, he had told to the police that accused Arjun Pandit was the same person, who came to his shop about one and quarter month before alongwith Sunny Khatri, who was known to him and had produced one gold chain, having tanka, and told that his mother was not well, so, he was in need of money, hence, the same was mortgaged. He took the chain in mortgage and handed over Rs. 7000/ to him. He has also admitted that chain was sealed in a pullanda with the seal of KSY and was seized. The statement given by him to the police on 25/08/2010 is true and correct.
38. In the cross examination, PW14 has stated that two police officials came to him in the evening at about 7.00 p.m. on 24/08/2010. One was in uniform and other was in civil dress. He was taken to PS by the police on 24/08/2010 and was detained there for whole of the night. Chain was taken from him by the police on 25/08/2010 and his statement was recorded. He had produced the chain from his house. When accused Arjun Pandit was brought his shop by the police, at that time, chain was not taken into possession from him. PW14 has further stated that when chain was brought to him by accused Sunny Khatri, he was alone and for the first time, he had seen accused Arjun Pandit, when he was brought to his shop by the SC No. 99/1 13 police.
39. From the deposition of PW14 Ram Narain, it is clear that chain was not pledged by accused Arjun Pandit with PW14 Ram Narain and it is also clear that chain was taken into possession in the PS on 25/08/2010 and not from the shop of PW14 Ram Narain, as deposed by the police officials. It is further contended that according to PW13 SI Baljeet Singh, for the first time, police had reached at the shop of Ram Narain on 25/08/2010, so, neither accused Arjun Pandit had pledged the gold chain with PW14 Ram Narain nor PW14 Ram Narain was knowing accused Arjun Pandit. In the examination in chief, PW14 Ram Narain has not deposed that he was knowing accused Arjun Pandit and has stated that chain was pledged with him by accused Sunny Khatri only, whereas in the cross examination conducted by ld. APP, he has admitted the statement given to the police by him as true and correct, according to which, one and quarter month before, accused Sunny Khatri and Arjun Pandit had pledged the chain with him for a sum of Rs. 7,000/, which was taken into possession by the police, but again in the cross examination conducted by ld. defence counsel, PW14 has stated that chain was taken into possession on 25/08/2010. He had produced the chain before the police after bringing the same from his house and it was not taken into possession at his shop. He has further stated that chain was pledged with him by accused Sunny Khatri only, so, under such flip flop evidence of PW14 Ram Narain, he is not inspiring any confidence and cannot be relied upon about the fact that accused Arjun Pandit was known to him and had pledged the gold chain for a sum of Rs. 7,000/ with coaccused Sunny Khatri.
40. PW12 HC Jai Bhagwan has also joined the investigation on 25/08/2010. He has deposed the same facts as of PW13 SI Baljeet Singh regarding the apprehension and arrest of accused Arjun Pandit on the pointing of secret informer and recovery of dagger on the pointing of accused Arjun Pandit. PW12 has also deposed about the fact that after the recovery of dagger, they reached at the shop of PW14 Ram Narain, who was present there and had produced on gold chain. PW14 SC No. 99/1 14 Ram Narain had further told that chain was pledged with him by accused Sunny Khatri and Arjun Pandit. The chain was sealed with the seal of KSY and was taken into possession vide memo Ex. PW12/K.
41. PW27 Inspector Kanwar Singh Yadav has also deposed the same facts regarding investigation of 25/08/2010 regarding arrest of accused Arjun Pandit on the pointing of secret informer and recovery of dagger on the pointing of accused Arjun Pandit behind Nangloi railway station, which was sealed and seized in this case. PW27 has also deposed about the fact that accused Arjun Pandit led the police party to shop No. X25, Mahabharata Vihar, Prem NagarII, Burari, where one Ram Narain met them, with whom, accused Sunny Khatri and Arjun Pandit had pledged the gold chain. The gold chain was taken into possession and was sealed with the seal of KSY and was seized vide memo Ex. PW12/K.
42. Learned defence counsel has contended that all these three witnesses i.e. PW12 HC Jai Bhagwan, PW13 SI Baljeet Singh and PW27 Inspector Kanwar Singh Yadav cannot be relied upon as they have contradicted with each other regarding the apprehension and arrest of accused Arjun Pandit and further recovery of dagger on his pointing out, which allegedly was used in committing murder.
43. Learned defence counsel has further contended that according to cross of PW12 HC Jai Bhagwan, when they reached at railway phatak via house of accused Sunny Khatri, secret informer was present there. They had parked the gypsy after crossing the phatak and went towards the station on foot, in the backside of the station. Accused was pointed out at the backside of the railway station after the platform. The writing work was done on the adjoining platform of the place of arrest. The knife was not visible and it was searched by them at the place, which was pointed out by the accused. Accused also searched the knife and took out the same from that place. Secret informer had left the spot after pointing out the accused. 24 public persons were asked to join the proceedings at the railway station, but they refused. Disclosure statement of accused was recorded at the railway station. SC No. 99/1 15
44. PW13 SI Baljeet Singh has stated in the cross examination that while they were going towards railway station in search of the accused persons, one secret informer met them on the way. They were not having any information about the accused persons present towards the railway station before meeting with the secret informer. They had parked their gypsy after crossing the railway phatak of Nangloi station, 1520 steps before the platform. After parking the gypsy, they went towards the platform i.e. towards Kirari side, after crossing the railway line. Writing work was done, while sitting at railway station, in the light of platform, on a bench. Accused Arjun Pandit got recovered the knife from the bushes behind the ticket office of the railway station, at a distance of 1520 steps. Knife was not visible in the bushes, while it was recovered by the accused. IO had asked some public persons to join the proceedings, but none agreed.
45. PW27 Inspector Kanwar Singh has stated in the cross examination that he was already having a talk with the secret informer, who had told him to meet him in the way towards railway station. Secret informer had told this fact, when they reached at Nangloi. Secret informer met them half a kilometer before Nangloi Railway station. Secret informer had asked him to reach on the road going from Nangloi colony to Nangloi railway station. They reached in their gypsy upto Nangloi railway station phatak. Writing work was done, while sitting on the bench at the platform in the light of the platform. They crossed the railway line, while going further. Accused had lifted the knife from the bushes and handed over the same to him. After recovery, they came back to the platform, where writing work was done.
46. In my view, these are not material contradictions as argued by learned defence counsel and the witnesses cannot be disbelieved only about the contradiction to the fact that gypsy was parked before railway phatak or after crossing the railway phatak, whether any public witness was asked to join the proceedings or not. Learned defence counsel has further contended that all the three witnesses have SC No. 99/1 16 contradicted each other regarding the place of recovery of knife/dagger, but the contention of learned defence counsel is not forceful in any manner. All these three witnesses have deposed that accused got recovered the dagger from behind the Nangloi railway station, from the bushes, and according to the witnesses, the dagger was not visible and it was searched and was produced by the accused himself, while he was in the custody, in furtherance of his disclosure statement, so the witnesses cannot be disbelieved in respect of the recovery of dagger on the pointing of accused Arjun Pandit.
47. In defence, DW1 Ramwati and DW2 Maya Devi have been examined. DW1 Ramwati is related to accused Arjun Pandit. On 20/08/2010, in the house of her sister, some persons had come to see her daughter for the purpose of marriage, so, she also reached there on the request of her sister. She stayed there on 21/08/2010. She had to come back on 22/08/2010, but due to rain, she could not come back. Accused Arjun Pandit was staying after about one house of her sister's house as tenant.
48. DW1 has further deposed that around 8 p.m., they found lot of people gathered in the gali, so, she went outside to see as to what was happening and saw that one police official had caught accused Arjun Pandit and was taking him away. The said police official was in plain dress. Accused Arjun Pandit was taken away by the police in her presence, in a police vehicle. She made a telephone call to the parents of accused Arjun Pandit at Jalesar, U.P.
49. DW2 Maya Devi is sister of DW1 Ramwati. She has also deposed the same facts about taking of accused Arjun Pandit on 22/08/2010 at about 8.00 p.m. In the cross examination, DW1 Ramwati has stated that she never visited the house of accused Arjun Pandit, where he was residing as tenant. Again, in the cross examination, DW1 has stated that she had informed the father of accused on telephone, but father of accused has not been produced as defence witness. She has failed to depose as to when father of accused came to Delhi. She came to know about SC No. 99/1 17 the visit of father of accused, who came to Delhi after about three days of 22/08/2010, but father of accused did not visit her house, which shows that father of accused came to Delhi on 25/08/2010.
50. According to DW2 Maya Devi, Bhanwar Singh was owner of house, where accused Arjun Pandit was staying as tenant, but he has not been produced as a defence witness. DW2 came to know from the newspaper only about the case, in which, accused Arjun Pandit was arrested. Accused has not produced any document regarding his tenancy in the house of Bhanwar Singh.
51. It is suggested in the cross examination of PW12 HC Jai Bhagwan that accused Arjun Pandit was arrested from his rented house at Prem Nagar G54, Kirari on 22/08/2010 at 8.00 p.m. in presence of his landlord, which has been denied by the witness, whereas according to cross of DW2 Maya Devi, Bhanwar Singh was not present, when accused Arjun Pandit was arrested by the police on 22/08/2010, so, the suggestion given to the witness and evidence of DW2 Maya Devi, are contradictory with each other. It is not suggested to PW12 that DW1 Ramwati and DW2 Maya Devi were present on 22/08/2010, when accused Arjun Pandit was taken by the police. If accused was apprehended in presence of landlord Bhanwar Singh, then his nonexamination itself speak a lot about the apprehension of accused Arjun Pandit on 22/08/2010 as suggested.
52. A different suggestion has been given to PW27 Inspector Kanwar Singh Yadav that HC Sheshdhar had arrested accused Arjun Pandit on 22/08/2010 from H. No. G52 in presence of landlord and his two sons, but again, this landlord or either of his sons has not been examined as a defence witness, so, under such circumstances, DW1 and DW2 are not inspiring any confidence and cannot be relied upon.
Postmortem finding:
53. Postmortem on the dead body was conducted by PW9 Dr. V.K. Jha, who has observed certain internal and external injuries. He opined the cause of death as SC No. 99/1 18 hemorrhagic shock as a result of cut throat injury and injury to the heart as a result of stab wound inflicted by the other party. All the injuries were antemortem in nature and injury no. 1 and 2 were singularly sufficient to cause death in ordinary course of nature. Time since death was about 48 hours. Total inquest papers were 8 in number and were handed over to the IO. Postmortem report is Ex. PW9/A. Before the Court, PW9 has gone through FSL report prepared by Sh. V. Shankar Narayanan, Senior Scientific Assistant and after going through the vaginal swab report, in which, there was presence of semen, PW9 was of final opinion that opinion expressed in the postmortem report was consistent and relevant. However, vaginal swab report was consistent with sexual intercourse before death.
54. The dagger recovered on the pointing of accused Arjun Pandit was examined as Ex. 10. According to the report Ex. PW25/A of FSL, blood was detected on Ex. 10. It was human blood and according to report of blood stained gauze cloth, it was having human blood of "A" group.
55. According to postmortem report Ex. PW9/A, time since death is about 48 hours. Postmortem was conducted on 18/07/2010 at about 12 noon, so, the time of death comes of 16/07/2010 at about 12 noon. According to PW3 Preeti Arora, daughter of the deceased, her mother was having two mobile phones, one is TATA no. 9266365261 and another of Reliance No. 9350385814. Call details of these mobile phones have been brought on record. According to the call details Ex. PW20/A, the last call received on TATA mobile No. 9266365261 was at about 10.46 a.m. on 16/07/2010, which shows that thereafter, at about 12 or soon before, Anita Gupta was murdered in her house.
56. In view of above, prosecution has not been able to bring on record any evidence that accused Arjun Pandit entered into a criminal conspiracy with other accused persons to commit murder of Anita Gupta and to commit robbery, but prosecution has been able to prove beyond reasonable doubts that one shirt belonging to the accused was found in the toilet of the deceased Anita Gupta, having blood SC No. 99/1 19 stains alongwith one handkerchief, which was having blood stains of human blood of "A" group, which were seized in this case. The blood group of deceased was also "A". No explanation has been brought on record as to how the shirt of accused Arjun Pandit was found in the toilet of the house of deceased Anita Gupta. This piece of evidence leads to an irresistible conclusion that on 16/07/2010, accused Arjun Pandit was present in the house of deceased Anita Gupta and after committing murder, he threw the shirt and the handkerchief in the toilet.
57. The prosecution has also been able to prove beyond reasonable doubts that after his arrest, accused Arjun Pandit in furtherance of his disclosure statement got recovered knife/dagger, which was also found having human blood stains, so, there can be only conclusion from this reliable evidence that accused Arjun Pandit had committed murder of Anita Gupta on 16/07/2010 at about 12 noon.
58. The prosecution has not been able to prove beyond reasonable doubts that the recovered gold chain belonging to deceased Anita Gupta, which was mortgaged with one Ram Narain, was mortgaged by accused Arjun Pandit,so, consequently, it is also not proved that the said gold chain was robbed from Anita Gupta and while doing so, a deadly weapon was used by accused Arjun Pandit.
59. Accordingly, accused Arjun Pandit is acquitted for offence u/s. 120B of IPC, u/s. 392 read with Section 120B of IPC and u/s. 397 read with Section 120B of IPC, but accused Arjun Pandit is held guilty for the offence u/s. 302 of IPC and is convicted for the same.
Announced in the open court (Virender Kumar Goyal)
today on 12th of November, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 99/1 20
SC No. 99/1 21
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 99/1
Unique Identification No. 02404R0279232010
State
Versus
1) Arjun Pandit
S/o Sh. Rameshwar Dayal
R/o Mohalla Gol Nagar,
Old Subzi Mandi,
Behind statute of Gandhi
Jalesar, District Eta, U.P.
FIR No. 258/2010
PS -Shalimar Bagh
U/s. 302 of IPC
Date of Decision: 12/11/2013
Date of order on sentence: 25/11/2013
ORDER ON SENTENCE
25/11/2013
Present. Ld. APP for the State.
Convict Arjun Pandit from J.C. with counsel Sh. Kailash Sharma. Heard on the point of sentence.
Learned defence counsel has contended that convict Arjun Pandit is aged about 26 years. He is unmarried. He is the only son of his parents and no other person in the family to lookafter them. His parents are old aged. It is further contended that accused was working as ward boy in the hospital and was also doing private electricity repairing job. He was earning Rs. 34000/. Learned defence counsel has further contended that he is not a previous convict nor habitual offender. It is further contended that a lenient view be taken. It SC No. 99/1 22 is further contended that he remained in custody from 25/08/2010 to 10/05/2012 and from 12/11/2013 till today.
On the other hand, ld. APP has contended that accused Arjun Pandit committed murder of an old lady and has been convicted for offence u/s. 302 of IPC, so, appropriate sentence be awarded as per law.
I have considered the submissions of ld. APP and learned defence counsel for the convict. The prosecution has been able to prove offence U/s. 302 of IPC against accused Arjun Pandit.
Offence U/s. 302 of IPC is punishable with death or imprisonment for life and shall also be liable to fine.
I have considered the submissions and age, character and antecedents of the convict. Under the circumstances, in which, offence has been committed, I am of the view that same is not falling within the definition of rarest of rare case.
Accordingly, sentence of imprisonment for life with fine of Rs. 5000/ is imposed upon the convict U/s. 302 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for six months.
On the point of compensation, it is contended by learned defence counsel that due to weak financial position, convict is unable to pay any compensation.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must SC No. 99/1 23 furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above, on account of loss of love and affection due to death of Smt. Anita Gupta, a compensation of Rs. One lac is imposed upon convict in favour of legal heirs of deceased Anita Gupta. In default of payment of compensation, convict shall undergo six months simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the claimants.
Benefit of Section 428 of Cr.P.C. be given to the convict.
Fine and compensation not deposited.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 25th of November, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
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