Delhi District Court
Sc No.6812/16, State vs . Suresh Singh @ Suresh., Fir ... on 11 April, 2019
In the Court of Sh. Ajay Kumar Jain,
Additional Sessions Judge02, South District, Saket, New Delhi.
Session Case No. 6812/16
In the matter of :
State
Versus
Suresh Singh @ Suresh
S/o Kundan Singh
R/o H. No. 266/G, Ward No. 2 Bhiya Chowk
Mehrauli, New Delhi.
Permanent R/o
Village and P.S Baha, Post Pura Khanera,
Distt. Agra, U.P.
FIR No. : 1484/2014
Police Station : Mehrauli
Under section. : 302 IPC
Date of assignment : 01.12.2014
Reserved for judgment : 03.04.2019
Date of decision : 11.04.2019
JUDGMENT
1. Prosecution story as per chargesheet in brief is that on receiving DD no. 102B dated 25.08.2014, SI Narender alongwith Ct. Kailash reached the spot i.e. House no. 226/G, Ward no. 2, Bhudiya Chowk, Mehrauli where he found complainant Mithlesh, owner of plot. At the spot, Ct. Jitender was also found who told that with the help of the public persons, gate of the room was broken and noticed two persons lying on the floor namely injured Jagdish and accused Suresh. The PCR was also called. Injured was sent to hospital. Crime team was also called at SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 1 of 24 the spot. Photographs were taken. Statement of owner Mithlesh was recorded in which she alleged that around 20 days back, she has given the room to one Jagdish and Suresh, and today at around 04:00 p.m. seen both of them quarreling after taking liquor, and therefore she scolded them and went for taking milk, thereafter, both of them have closed the door from inside. At around 11:00 p.m., she knocked the door of the room, however, could not hear any sound, thereafter called 100 number, and the police came and broke open the door, and found Jagdish in injured condition and Suresh was also lying in drunken condition. The injured Jagdish was declared brought dead at AIIMS Trauma Center, resultantly present FIR u/s 302 IPC was registered.
2. During investigation, at the instance of complainant Mithlesh, site plan was prepared. Crime team called and photographs were taken. The supplementary statement of Mithlesh was recorded in which she alleged that injured Jagdish was not her tenant, however, came to meet Suresh one or two times. She further alleged that in the said room alongwith accused Suresh, his associates Muneem and Shyam Singh also resides. She further stated that one Vidhya Ram, brother of the accused, also used to reside, however, he was not residing with him now a days, and Muneem and Shyam Singh were also not seen by her, and on 25.08.2014 only Suresh and Jagdish were taking liqour, and on seeing them she scolded them, thereafter, both of them went in the room and in the night when she checked, the room was not opened. When they checked the room with the mobile light, they found them lying inside and thereafter call was made at 100 number. Police broken the room and took Jagdish in unconscious state to hospital. Accused Suresh pretended unconsciousness and become conscious after some time. During investigation IO collected the blood stained pieces of brick, earth control, clothes, piece of carpet, empty quarters of country made liquor and after postmortem, dead body was handed over to the SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 2 of 24 relatives of the deceased. Accused was arrested.
3. During investigation, accused disclosed that on that day, he alongwith Jagdish started taking liquor in the noon time and they got intoxicated by 34 p.m, and then he asked Jagdish to bring some more quarters, however, he has not brought, thereafter, he refused to give the liquor and the quarrel has taken place, then the owner scolded them, therefore both of them bolted the room and started taking liquor, however injured Jagdish abused him by stating that he wanted to take the liquor free, thereafter, he got angry and inflicted number of blows with the iron plate (tawa) lying in the room on his head with intention to kill and kept on inflicting blows till his death, then, he put off his clothes having blood stains and concealed them in a polythene beneath the cot and changed the clothes, further cleaned the iron tawa and put off the light, and lied down there by pretending that he is in fully intoxicated state. Police took him to the hospital and also medically examined him.
4. At his instance, iron tawa as well as his blood stained clothes were recovered and seized. Postmortem report was collected. The cause of death as per postmortem report is shock as a result of antemortem injuries on the head produced by blunt force. Subsequent opinion over the weapon of offence was also taken. Scaled site plan was prepared. PCR form collected. The exhibits were deposited in the FSL, Rohini. Upon completion of investigation, chargesheet was filed.
5. On committal, vide order dated 09.04.2015, charge under Section 302 IPC was framed against the accused Suresh to which he pleaded not guilty and claimed trial.
6. Prosecution in order to substantiating its case, examined 28 witnesses.
PW6 Mithlesh, landlady, PW5 Devender are the public witnesses who noticed the accused alongwith the deceased lying on the floor in the rented premises. PW8 Jagbir Singh, another independent witness, also noticed the presence of deceased and accused in the said room. PW7 SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 3 of 24 Dr. Mahesh Kumar conducted the post mortem of the deceased. PW22 HC Vijay Kumar, PCR official took the injured from the spot to the hospital. PW23 SI Narender Singh reached the spot on receiving DD No. 102B. PW13 HC Jitender beat Constable of the area who reached the spot and break open the door of the room. PW28 IO Insp. J P Meena who conducted the investigation. The summary details of prosecution witnesses is reproduced as under:
7. PW6 Mithlesh stated that on 25.08.2014 at around 3/3.30 p.m. when she was going to fetch milk, noticed Suresh and Jagdish were quarreling with each other in front of Room no. 2, thereafter, she scolded them and asked them to go inside the rented room, and at around 10:0011:00 p.m after locking the main gates when she was checking the rooms and knocked the door of the room of accused Suresh, Suresh not responded, then, her son Devender and other tenants gathered, and from the mobile torch, her son peeped inside the room and noticed Suresh and Jagdish lying on the floor. Then, she called the police. Police also knocked the door, thereafter, they break open the door and noticed that Suresh and Jagdish were lying unconscious. Jagdish was taken to hospital. Accused Suresh regained consciousness after few minutes and taken by the police.
8. In crossexamination, stated that she did not inquire Suresh about the Jagdish, however, during altercation Jagdish was demanding money from Suresh. She further stated she cannot tell whether they had consumed liquor or not. She further stated that she is not aware whether Jagdish putting his hand on the pocket of Suresh to have money in order to consume more liquor. She further stated that there are only grills over the window and lights were off. The room was broken by the police officials but she did not enter the room after same was broken, only police entered the room. She further stated that she had not seen Jagdish and cannot tell whether he was conscious or unconscious, SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 4 of 24 however police told that Jagdish and Suresh were lying unconscious. Police official remained at the spot till around 03:00 a.m, and also recorded her statement. Seizure of all the articles were conducted in her presence but she do not know which articles were seized.
9. PW5 Devender, son of PW6 Mithlesh stated that at around 10:30 p.m., his mother called Suresh however there was no response, and as there was no response from inside she called him and he peeped inside the window using torch, then saw accused Suresh and Jagdish lying on the floor. Police was called. Then, police broke the door and they found Jagdish was lying unconscious, and accused was under influence of liquor. Jagdish was removed to hospital and accused Suresh was taken in PCR van to the police station. In crossexamination stated that his mother told about the altercation around 04:00 p.m. He also stated that in the night his mother called him and then he also knocked the room. He did not notice any smell from the room. Door of the room was broken by the police. Utensils etc. were also kept by the accused Suresh in an almirah on the wall. He did not enter the room only police entered the room. After a week, he entered the room alongwith policemen. Jagdish was removed from the spot within 5 minutes, however did not notice any mark of apparent injury on his body. Accused was under the influence of liquor but was conscious. Police made inquiries from number of people at the spot. Police also seized some articles but he is not aware about the seizures. He has not signed any document and came to know about death of Jagdish on 27.08.2014.
10. PW8 Jagbir Singh stated that around 10:0010:30 p.m saw Mithlesh at her plot with number of public persons and by peeping inside the window through mobile, he noticed two person lying in injured condition. Police was also called. Thereafter, they entered the room. Blood was also lying there in huge quantity. Police removed both of them to hospital in PCR van. On being declared hostile, in cross SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 5 of 24 examination by Ld. Addl. PP, stated that the name of the tenant is Suresh, and police also took the photographs of Suresh and other injured but he cannot say whether the accused Suresh is the same person. In crossexamination stated that the police reached there in his presence and broke open the door by using force. Police has not seized anything in his presence. He further stated that they were not allowed to go inside and had not seen any injury on any injured, and after 23 days came to know that one of the injured had died. He denied suggestion that one Punjabi and Tikola were present in the room at the time of incident.
11. PW1 Dr. Shahnawaz Iqbal exhibited the MLC of accused Suresh, and stated there were no sign of physical assault, and patient was conscious and oriented. PW2 Dr. Rupesh Kumar Kejriwal exhibited the MLC of the deceased, and stated that the deceased was declared brought dead. PW3 Shakeel Ahmad son of the deceased identified the dead body of the deceased. PW4 Ct. Rakhi PCR official exhibited the PCR form regarding quarrel. PW7 Dr. Mahesh Kumar conducted the postmortem of the deceased and also gave the subsequent opinion. PW9 Iqbal Khan son of the deceased also identified the dead body. PW10 Ct. Jaibeer, Crime team photographer took the photographs of the spot. PW11 Ct. Manoj also reached the spot after getting the intimation of quarrel from police station. PW12 Inspector Mahesh Kumar prepared scaled site plan. PW13 HC Jitender Singh stated that while patrolling on the PCR motorcycle, after receiving the call from Eagle 50 (PCR) reached the spot made inquiries, and with the help of public persons broke open the door and found accused Suresh and injured lying in the room. PW14 HC Ashok Kumar, MHCM exhibited Malkhana entries. PW15 ASI Arvind Kumar took the iron tawa for subsequent opinion to the doctor, and thereafter collected the SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 6 of 24 subsequent opinion from the doctor. PW16 Ct. Kailash accompanied SI Narender to the spot. PW17 SI Shriram, Duty Officer, who registered FIR. PW18 Ct. Mahender Kumar, Special Messenger who delivered the copy of the FIR to concerned Magistrate and Senior Police officials. PW19 Ct. Anil also reached the spot with DD no. 102 B. PW20 Ct. Pradeep Kumar deposit the exhibits at FSL. PW21 HC Dinesh Kumar also deposited the exhibits at FSL. PW22 HC Vijay Kumar, Incharge Eagle 28 (PCR) reached the spot and found Eagle 83 was also present there, and took the injured Jagdish with constable to AIIMS Trauma Centre where he was declared dead. PW23 SI Narender Singh stated that on receiving DD no. 102B, he alongwith Ct. Kailash reached the spot where he found Ct. Jitender, complainant Mithlesh. Other police officials also reached the spot and the room was broken. Injured Jagdish was sent to hospital. He further recorded the statement of complainant and also sent Suresh for medical examination, collected MLC of the injured and prepared rukka. Thereafter, joined the investigation with IO Inspector J.P. Meena. Crime team was also called at the spot. The dead body was identified by Shakil Ahmad and Iqbal Khan, who stated that the dead body is of their father Usman Khan. PW24 Santosh Tripathi exhibited the Viscera report and found ethyl alcohol, however, no poison detected. PW25 Dr. Adesh Kumar, Sr. Scientific Officer, also exhibited the Chemical Examiner Report Ex. PW25/A. PW26 Ct. Pawan, also joined the investigation at the spot and witness to the seizure of the articles from the spot. PW27 Ms. Vinita Rawat, Sr. Scientific Officer exhibited biological and serological report. PW28/IO J.P. Meena, who after handing over the investigation inspected the spot, prepared site plan, collected exhibited, got identified the dead body, recorded disclosure statement of the accused, and at his instance tawa and clothes were recovered. PW29 SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 7 of 24 Inspector Sunil Kumar also reached the spot and clicked the photographs of the spot from his mobile phone, and stated that family member of Jagdish identified him as Usman Khan @ Jagdish.
12. Accused in his statement u/s 313 CrPC denied all the incriminating circumstances put to him and took the plea that in the evening he came from outside after taking meal and gone for sleeping, thereafter, woke up after police personnels sprinkled water over him and he do not know what happened in between. Accused not opted to lead any defence evidence.
Material Exhibits
13. Ex. PW6/A the statement of Mithlesh. Ex.PW23/A is the rukka. Ex.
PW17/D is the FIR. Ex.PW23/DA is the rough site plan of the place of occurrence. Ex. PW12/A is the scaled site plan. Ex.PW23/C is the seizure memo of the piece of brick. Ex.PW23/D is the seizure memo of the earth control. Ex. PW 23/B is the seizure memo of blood stained clothes. Ex. PW23/E is the seizure memo of the piece of carpet. Ex. PW23/G is the seizure memo of empty quarter of countrymade liquor. Ex. PW26/E is seizure memo of iron tawa. Ex. PW26/F is the seizure memo of blood stained clothes of accused. Ex. PW19/A is the seizure memo of exhibits i.e. wooden box, envelope and blood stained clothes of the deceased Usman Khan @ Jagdish. Ex. PW17/F is the DD no. 102B dated 25.08.2014. Ex. PW 17/A is DD no. 3A dated 26.08.2014. Ex. PW17/B is DD no. 4A dated 26.08.2014. Ex. PW5/A is DD no. 5A dated 26.08.2014. Ex. PW2/A is the MLC of the deceased showing brought dead. Ex. PW23/H is the request for conducting postmortem. Ex. PW23/I death report. Ex. PW3/A and Ex. PW9/A are the statement of Shakeel Ahmad and Iqbal Khan identifying the dead body of their father Usman Khan. Ex. PW7/A is postmortem report. Ex.
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 8 of 24 PW7/D is the request for subsequent opinion. Ex. PW7/B is the subsequent opinion. Ex. PW7/C is the sketch of iron tawa prepared by the doctor showing brownish stain. Mark PW28/B is the PCR form. Ex. PW26/A is the arrest memo of the accused. Ex. PW26/C is the disclosure statement of the accused. Ex. PW26/D is the pointing out memo of the place of occurrence. Ex. PW10/B1 to B12 are the photographs of the spot. Ex. PW10/A1 to A13 are also the photographs of the spot. Ex. PW29/A1 to A10 are the photographs of the deceased and injured lying in the room. Ex. PW1/A is the MLC of the accused Suresh having no signs of physical assault. Ex. PW25/A is the FSL examination report. Ex. PW27/A and PW27/B is the biological and serological examination report. Ex. PW14/A are the malkhana entries. Ex. PW4/A is the PCR form.
14. Ld counsel for accused submitted that the prosecution could not prove the identity of the deceased. No neighbouring tenants were examined. Furthermore, it is inconceivable in present case scenario that none in the vicinity might have heard the shouts of the deceased. Ld counsel submitted that as per the testimony of PW2, death can be due to fall. Furthermore, no independent witness was joined at the time of recovery of iron tawa or the clothes. As per the FSL report, the blood group could not be ascertained over the blood stains found on iron tawa or the clothes of the accused. Ld counsel submitted that there is no eye witness to the incident. Ld counsel further submitted that merely on the basis of last seen evidence, the accused cannot be convicted and prosecution unable to prove the chain of circumstances conclusively. Ld counsel further submitted that prosecution unable to prove its case beyond reasonable doubt, hence, accused is entitled to be acquitted. Besides oral submissions, written submissions were also filed on behalf of the accused.
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 9 of 24
15. However, Ld. Addl. PP submitted that the accused and the deceased were seen quarreling with each other in day, then, found unconscious in the room at night. Accused had not suffered any injuries and there are number of injuries on the body of deceased but the accused could not give any plausible explanation for the same. There is incriminating recovery of iron tawa at the instance of the accused used in inflicting head injuries. The post mortem report suggest that the said injuries are sufficient to cause death. Ld. Addl. PP submitted that PW5, PW6 and PW8 are the independent witnesses who have given the complete account of the incident. Ld. Addl. PP submitted that the prosecution is able to prove all the circumstances relied upon.
16. Arguments heard. Record perused.
17. Apex court in "Mohan Singh Vs. State of MP, AIR 1999 SC 883", held that effort should be made to find the truth, this is the very object for which courts are created. One has to comprehend the totality of the facts and circumstances as spelled out through the evidence depending upon the facts of each case.
18. The brief sequence of events is that, on the day of incident deceased and the accused were found quarreling in the day time, thereafter noticed in unconscious state at night after break opening the door of the room by the police, blood stains were noticed in the room, the photographs of both deceased and the accused lying in the room were taken, deceased firstly removed by PCR to hospital where he was declared as brought dead, thereafter, the deceased was sent for post mortem, accused was apprehended from the spot itself and was taken for medical examination, during medical examination, no injuries were found on the body of accused. After arrest, his disclosure statement was recorded pursuant to which, in the evening, his wearing clothes alongwith iron tawa used in the commission of offence were recovered at his instance.
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 10 of 24
19. This is the case based on circumstantial evidence. The prosecution relied upon the following circumstances:
(a) The deceased and the accused were found quarreling with each other in day time, thereafter both went inside the room.
(b) In the night, on checking the room by PW6, the room was not opened by the accused and it was noticed that the room was bolted but both deceased and accused were lying inside the room. Thereafter, police was informed and after reaching of the police, the door was broke open, then, deceased and accused were found lying on the floor. Blood was also found scattered in the room.
(c) The cause of death as per the post mortem report is injuries over the head caused by the blunt object.
(d) The recovery of iron tawa and clothes of the accused having blood stains at the instance of the accused.
(e) Nonexplanation of the injuries suffered by the deceased by the accused as both were in company of each other and nobody else accompanying them at that time.
20. PW6 Mithlesh in her statement Ex. PW 6/A recorded by the police on the basis of which FIR was registered stated that she had given the room in question on rent around 20 days back to one Jagdish and Suresh, however, at around 4.00 p.m today on 25.08.2014, she noticed that both Suresh and Jagdish were quarreling with each other after taking liqour, thereafter, she scolded both of them and went to fetch milk, then, both of them entered in the room and closed the same. At around 11.00 p.m, she knocked the door, however could not get any response and the light in the room was also off, then, she called the police at 100 number, and when police came, the door of the room was broke open and found Jagdish in injured condition having injuries on his head and Suresh was also lying nearby him in inebriated state. Injured Jagdish was sent to hospital. As per the statement of this SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 11 of 24 witness before the police, during the day time, at about 4.00 p.m, she noticed both Suresh and deceased Jagdish quarreling with each other after taking liqour. When she scolded them, they went into their room. At about 11.00 p.m, when she knocked their room, they did not respond, thereafter, she called the PCR. The police broke open the room and found Jagdish in injured condition and accused Suresh Singh was lying on the floor in inebriated state.
21. This witness in her testimony also stated that on 25.08.2014 at around 3/3.30 p.m, when she was going to fetch milk, noticed Jagdish and Suresh quarreling with each other. She scolded them and asked them to go inside the room and thereafter, at about 11.00 p.m, when she knocked the door of the room for checking which was bolted from inside, no one responded. She called her son Devender who also knocked the door but it was not opened, thereafter, other tenants also gathered there. Her son peeped inside the room through mobile torch and found accused Suresh and Jagdish lying on the floor. There is nothing in her crossexamination that she had not noticed both deceased and accused quarreling with each other during the day time or the fact that they were not found lying on the floor after breaking the door of the said room. In crossexamination she also stated that it is correct that she was informed by the police that Suresh and Jagdish were lying unconscious, and that Jagdish was taken to hospital and Suresh regained his consciousness after few minutes. She also stated that Jagdish was having injuries on his person and blood was oozing out. There is nothing in her statement that both deceased and the accused were not found lying in the room in the manner as deposed by her.
22. Her statement is also corroborated through the statement of her son PW5 Devender and PW8 Jagbir Singh. PW5 Devender also stated that during the evening time, at about 4.00 p.m, his mother scolded accused SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 12 of 24 Suresh and Jagdish because they were having altercations between them, however, in the night at about 10.30 p.m, Suresh did not respond. Thereafter, he had also knocked the door of their room and peeped inside through the window. In the mean time, other tenants also gathered there and saw accused Suresh and Jagdish lying on the floor ( Farsh). Thereafter the police was called, the police broke the door of the room as it was bolted from inside. In crossexamination explained that while checking, they found that the light in the said room was off. The window was on the left side of the room having grills, and the door was got broken by the police officials. He also categorically stated that accused Suresh was also taken by the police. From his testimony also, it is not found disputed that the accused and the deceased were found lying unconscious in the said room, and police entered the room after breaking the door of the said room.
23. PW8 Jagbir Singh, another public witness who used to drive the school van, also noticed the said incident and stated that on peeping inside the room, he noticed two persons lying in injured condition. Police break open the door and found two persons lying and there was pool of blood around them. Police removed both of them to the hospital. He also stated that police had taken photographs of accused Suresh and other injured and also made enquiries from the tenants. In crossexamination also he corroborated the case of the prosecution by stating that police break open the door of the room in his presence by using force. They were not allowed by the police to enter inside the room.
24. Though in crossexamination, the witnesses are confronted over the fact that they were not allowed to enter the room by the police however there is nothing in their testimonies to show that the accused and the deceased were not lying in unconscious state in the said room. Therefore, as far as the presence of accused alongwith the deceased in room is concerned same is also corroborated through the statement of SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 13 of 24 this independent witness. Furthermore, it is also not disputed by the accused in his statement u/s 313 CrPC that he was not found lying inside the room, only plea taken that after having the meals, he slept in the room and woke up by the police by sprinkling water on him.
25. PW13 HC Jitender reached the spot after receiving the intimation and stated that he found number of persons collected there and found the room bolted, and on enquiry landlady Mithlesh told him that she let out the room to accused Suresh. She also told him that she scolded Suresh and Jagdish in the evening and when she knocked the room in the night, she did not receive any response, then, she called 100 number and with the help of public persons, the door of the room was broke open. There was no light in the room and found Suresh in unconscious condition and also the injured and blood was oozing from the injured, thereafter, he informed the Duty Officer and Insp. Meena. SI Narender also reached the spot and photographs were taken from mobile phone. PW23 SI Narender who also reached the spot on receiving DD No. 102B regarding the present incident also stated that he found HC Jitender, complainant Mithlesh and other public persons on the spot who stated that they break open the door of the room and found one injured and other was sleeping. The testimony of the public witnesses as well as the police official is consistent to the extent that both deceased Jagdish and accused Suresh were lying in the said room. Their testimony is also duly corroborated through the site plan, photographs of the spot Ex. PW 29/A1 to Ex. PW 29/A10. These photographs categorically show that both deceased and the accused were lying on the floor of the room.
26. PW22 HC Vijay Kumar, PCR official, who after reached the spot after information of the incident, stated that he found injured in unconscious state and accused Suresh was taken into custody by the police. He took injured Jagdish alongwith one Constable to AIIMS Trauma Center SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 14 of 24 where he has been declared as dead. In crossexamination stated that he had noticed the injuries on the body of deceased however cannot say about the internal injuries. MLC Ex. PW 2/A of the injured also suggest that injured was brought dead. His postmortem was conducted by PW7 Dr. Mahesh Kumar who noticed the following external and internal injuries :
External Injury:
1. Lacerated wound measuring 2.5 x .4 cms horizontally present over the boarder of the eye lid, conjunctiva is conjested.
2. Lacerated wound measuring 3 x 3 cm present over the right pinna upper end, cartilage deep.
3. Lacerated wound measuring 2 x 2 cm, cartilagenous deep present over left ear tragus.
4. Reddish contusion measuring 5 x 4 cm present present over right side face, 4 cm from midline and 5 cm above right angle of mandible.
5. Reddish contusion measuring 8 x 6 cm present over left upper chest and shoulder , 4 cm from midline and 2 cm below left clavicle. Internal Injury on head:
1. Scalp - Extravasation of blood present all over the scalp.
2. Skull - Fracture present as shown in the figure.
3. Brain - Extradural hemorrhage is present over left temporal region.
Diffuse subdural hemorrage is present over left frontotemproparieto occipital region and right parietal region. Diffuse subarachnoid hemorrhage present over both the cerebral and cerebellar hemisphere. Internal injury on chest:
1. Ribs and chest wall - Right side 5 th to 8th and left 5th to 6th ribs are fractured alongwith extravasation of blood.
Internal injury on abdomen:
Superficial laceration present over superior anterior surface of liver.
All the injuries were ante mortem in nature and cause of SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 15 of 24 death in the present case was shock as a result of antemortem injuries to head produced by blunt force impact.
27. PW7 Dr Mahesh Kumar deposed that as per postmortem report, all the injuries were ante mortem in nature, and the cause of death in the present case was shock as a result of ante mortem injuries to the head produced by blunt force impact. He also preserved the viscera to rule out any intoxication. As per viscera report Ex. PW24/A, Ethyl Alcohol was also found in the viscera suggesting the fact that the deceased had taken liqour prior to his death. Accused Suresh was also medically examined on the said night vide MLC Ex. PW1/A, and as per MLC, he was conscious and oriented and there was no sign of any physical assault. PW1 Dr Shahnawaz Iqbal who examined the accused also deposed that there was no sign of any physical assault and accused was conscious and oriented, however stated that he cannot comment whether there was any breathe of alcohol or not.
28. Now it is pertinent to examine the prosecution case from the perspective of the injuries found on the body of the deceased. Deceased is found to have suffered number of external and internal injuries and the cause of death is due to injuries on the head caused by blunt object, however as per MLC of the accused, no physical injuries were noticed on his body. Accused himself, in his statement u/s 313 CrPC, admitted his presence in the said room but not taken any plea that he was assaulted by the deceased in the said room. From the statement of witnesses and other evidence on record, it is clear that both the accused and the deceased were inside the room alone, therefore, it can be presumed that the injuries were caused by the accused. One more aspect pertinent to be noticed that accused has not pleaded any kind of scuffle with the deceased. Even otherwise, if the accused had taken the plea that deceased had beaten him which provoked him to assault the deceased, also cannot be taken into consideration as the accused has SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 16 of 24 not suffered any injury in the said incident.
29. In these circumstances, the onus is on the accused to explain how the injuries were caused to the deceased. There is nothing in cross examination of the witnesses examined that the injuries over the deceased might be inflicted by somebody else or that the place of infliction of injuries is not the room of the accused Suresh. There is nothing suspicious about the presence of any other person in the said room at the time of infliction of injuries. Accused himself admitted his presence in the room and only took the plea that he was sleeping and police after sprinkling water woke him up and he do not know what happened in between. He has not even taken the plea that the accused might be injured by someone else. As already discussed, both of them were found bolted inside the room. It has come in the testimony of PW6 that the accused Suresh regained consciousness within few minutes. PW13 also stated that after sprinkling water, accused regained consciousness. This in present facts and circumstances when the injured was lying dead besides him suggests that by this explanation accused is feigning unconsciousness, thus, the conduct of the accused also reinforce the inference that he caused fatal injuries to the deceased. Accused unable to discharge the onus shifted over him.
30. There are other incriminating circumstances against the accused i.e. the recovery of one iron tawa seized vide seizure memo Ex. PW 26/E and Ex. PW 26/F from the said room at his instance lying beneath the cot(charpai) in the room. The said tawa used as weapon of offence is seized on the same day i.e. 26.08.2014, however, Ld counsel for the accused submitted that the recovery of iron tawa and clothes are false and fabricated as no public witness was joined at the time of recovery. This tawa was seized by the IO in the presence of PW26 Ct. Pawan. PW26 Ct Pawan stated that in the evening, at the instance of the accused, his clothes and one tawa was recovered from the said room.
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 17 of 24 There is nothing in crossexamination of this witness that accused Suresh was not taken to the room in the evening or no articles were recovered at his instance. There is also nothing material in the cross examination of PW28 IO J. P. Meena that recovery was not effected at the instance of the accused from his room. IO categorically denied the presence of landlady and her son, and other tenants at that time. The subsequent opinion over the iron tawa was also taken which was given by PW7 Dr. Mahesh Kumar, and as per subsequent opinion, the injuries could be possible from the said tawa. PW7 also noticed brownish stains over the said tawa. Sereological report Ex. PW27/B also noticed the blood stains of human origin over iron tawa. As per seizure memo Ex. PW 26/F, one half pant cream colour, one shirt having blood stains were recovered from beneath the cot and collected by the police at the instance of the accused. As per Sereological report Ex. PW 27/B, the blood stains of human origin were noticed on the said shirt and half pant belonging to the accused. Prosecution thus able to prove the circumstance of recovery and use of said tawa and the blood stained clothes of the accused.
31. As far as the spot is concerned, the said spot is a tenanted room in occupation of accused Suresh. As per photographs Ex. PW 29/A1 to Ex. PW 29/A10, both deceased and Suresh were found lying in the said room in unconscious state. The other photographs also show blood stains, empty bottles etc at the spot. The prosecution witnesses as discussed found consistent over the aspect that the deceased and the accused were found lying on the floor after break opening of the door of the room, and blood found scattered. The exhibits of blood stains lifted from the said room i.e. brick piece, piece of carpet etc showing that the blood was of human origin.
32. The accused is charged for commission of offence u/s 302 IPC.
However, Ld counsel for accused submitted that no offence u/s 302 SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 18 of 24 IPC could be made against the accused as the accused had no enmity with the deceased and the altercation as alleged by the witness is of a trivial nature. Though the prosecution case is not that there was a previous enmity or any strong motive to commit crime, however it is proved as discussed that the deceased was found dead in the company of the accused in his room, and found to have suffered number of internal and external injuries, and the cause of death is the head injuries due to blunt object.
33. Ld counsel submitted that said injury could be caused by falling as stated by PW2 Dr. Rupesh Kumar Kejriwal who exhibited the MLC of deceased, however, this submission is not corroborated by PW2. PW2 only stated that perforation of eye can take place by virtue of fall of person. There is nothing suggested to PW7 Dr Mahesh Kumar who conducted the post mortem that other injuries on head could be possible by falling.
34. Deceased is found to have suffered number of external and internal injuries over the head found sufficient to cause death. Delhi High Court in case titled Nanko Devi Vs. State, Crl. Appeal 152/2001 dtd. 6.12.2010 observed as under:
In Arun Nivalaji More (supra) the Hon'ble Supreme Court held as under: "25. In order to ascertain that "there was an intention to inflict that particular bodily injury" the enquiry should not be directed to find out whether the offender had intention to cause those very injuries to the internal organs of the body which were actually found to be there in the medical examination. The intention has to be gathered from a host of circumstances like the seat of injury viz. the place or portion of the body where the injury has been caused, the nature of the weapon, its size and dimension or other attributes and the force applied in inflicting the injury. Being a question of fact it is difficult to lay down exhaustive tests to ascertain as to whether the offender intended to inflict that particular injury which is found on the body of the deceased but the features enumerated above will certainly play a vital role in arriving at a correct conclusion on the said issue.
26. The mere fact that a dangerous or deadly weapon was not used or the injuries were not caused on vital parts of the body SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 19 of 24 may not necessarily take out the offence from the clutches of clause Thirdly of Section 300 IPC. Death may take place on account of large number of blows given by a blunt weapon like lathi on hands and legs causing fractures. Though the injuries may not be on a vital part of the body as the said term is generally understood, but if the medical evidence shows that they were sufficient in the ordinary course of nature to cause death, the offence would fall in clause Thirdly of Section 300 IPC. In Anda v. State of Rajasthan where there were large number of injuries which had resulted in fractures of ulna, third metacarpal bone, tibia and fibula, Justice Hidayatullah (as His Lordship then was) speaking for a fourJudge Bench held that the offence will be under cause Thirdly of Section 300 IPC having regard to the fact that the doctor had opined that all these injuries collectively were sufficient to cause death in the ordinary course of nature though individually no injury was sufficient in the ordinary course of nature to cause death. It was observed: (AIR p.148) "The third clause of Section 300 IPC views the matter from a general standpoint. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The intentional injury which must be sufficient to cause death in the ordinary course of nature, is the determinant factor."
35. PW7 Dr. Mahesh Kumar who conducted the post mortem on the body of deceased noticed five external injuries and three internal injuries on the head, and one internal injury on chest and deposed that all the injuries are ante mortem in nature, and cause of death was shock as a result of ante mortem injuries over the head produced by the blunt force impact. The head injuries found to be sufficient to cause death. Therefore, the present case falls within the ambit of Sec. 300 IPC thus, punishable for an offence u/s 302 IPC.
36. Ld counsel for accused stated that the identity of the deceased Jagdish is not established. PW3 Shakil Ahmed and PW9 Iqbal Khan, sons of deceased who identified the dead body, no where stated that the name of deceased is Jagdish. They only stated that the name of the deceased SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 20 of 24 is Usman Khan. This plea is also not tenable as the deceased was identified through the photographs and his name as Jagdish was told by PW6 Mithlesh and PW5 Devender. It was not suggested to any of the witnesses that Usman Khan and Jagdish are different persons. PW29 Insp. Sunil Kumar categorically stated that during investigation, after seeing the photographs through mobile, the family members of Jagdish identified the deceased as Usman Khan @ Jagdish. Nothing was suggested to this witness that Jagdish and Usman Khan are different persons.
37. Ld counsel vehemently submitted that number of tenants were present nearby however no tenant was examined. Prosecution during investigation examined tenants Ram Kaleshwar Chaudhary, Leelawati @ Leelu, however they were found untraceable during the evidence and dropped vide order dated 29.09.2016. Even otherwise PW6, PW5 and PW8 are also independent witnesses who were present at the scene of crime. PW5 and PW6 informed the police and in their presence, police found the injured and the deceased lying unconscious in the room, therefore, by this plea of the Ld. Counsel for accused could not displace the prosecution case.
38. Ld counsel for the accused submitted that when such number of injuries were caused to the deceased, then, tenants must have heard the cries. However, there is nothing on record to show that any tenant heard the cries. The accused and the deceased were found lying unconscious in the room. The deceased was also found lying under intoxication. In this scenario, it is the duty of the accused to explain the injuries which were quite large on the body of deceased, hence, merely because the fact that whether any shouts/cries were heard or not is not material in the present facts and circumstances.
39. Ld counsel also submitted that no public witness was joined at the time of recovery of iron tawa and the blood stained clothes of the accused.
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 21 of 24 IO PW28 stated in crossexamination that when he took the accused in the evening, no neighbour was present, even the landlady or her son were not present. PW26 another witness to the seizure memo is not at all crossexamined on this aspect therefore merely by nonjoining the independent witnesses is no ground to disbelieve the recovery of iron tawa and clothes of the accused in the present facts and circumstances.
40. This is a case based on circumstantial evidence. The main circumstance as relied upon by the prosecution i.e. an altercation took place between the accused and the accused during the day time, thereafter, both were found lying unconscious inside the room of accused Suresh in the night, blood was also found scattered on the floor of the said room, the MLC of deceased show that he was brought dead, and as per the post mortem report, he was found to have suffered number of external and internal injuries which could be possible due to the use of iron tawa. The prosecution also able to prove the circumstance of recovery of tawa and blood stained clothes of the accused. Accused unable to give any explanation how the deceased suffered fatal injuries in his room.
41. Apex court in Sharad Birdhichand Sarda V. State of Mahrashtra (1984) 4 SCC 116, held that the following factors to be taken into consideration in deciding the cases based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not the explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature of tendency; (4) They should exclude every possible hypothesis except the one to be proved; and SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 22 of 24 (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 shown that in all human probability the act must have been done by the accused .
42. In appreciating the case based on circumstantial evidence, the prosecution has to prove the circumstances conclusively. The circumstances concerned "must" or "should" and not "may be established". Furthermore, the chain of the evidence must be so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The prosecution able to prove entire chain of circumstances as discussed conclusively and accused unable to furnish any plausible explanation over the incriminating circumstances put to him.
43. Delhi High Court in case titled Amruddin v. State 2014 SCC Online Del 786 held that it is a settled legal proposition that in a case based on circumstantial evidence, where no eye witness account is available, the principle is that when an incriminating circumstances is put to the accused and the said accused either offers no explanation for the same, or offered an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In the present case, the accused could not give any plausible explanation how the deceased with fatal injuries was found lying alongwith him in a bolted room, on the other hand explanation given by him is confirming his presence though accused cleverly ignored to explain the presence of the deceased in his room in his statement u/s 313 CrPC.
44. Ld counsel for the accused submitted that merely on the basis of last seen circumstance, the accused cannot be found guilty and in this regard relied upon judgments Madho Singh v. State of Rajasthan 2002 SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 23 of 24 Law Suit (SC) 927, Kanhaiya Lal v. State of Rajasthan 2014 Law Suit (SC) 173, Daulat Ram v. State of Haryana 2015 Law Suit (SC) 430, however these judgments in present circumstances are of no help to the accused. The accused is found to be in the company of the deceased since afternoon and lastly both were found unconscious in the room. There were number of injuries found on the body of the deceased both external and internal, and accused is not found to have suffered any injuries on his body and just woke up on sprinkling of water which itself suggests that he was feigning unconsciousness. This kind of last seen circumstance (better say last found circumstance) without any time gap, and without any plausible explanation by accused is consistent with the guilt and inconsistent with the innocence of the accused ( Amruddin supra).
45. It is cardinal principle of criminal law that the guilt of the accused must be proved beyond all reasonable doubt, however burden of prosecution is only to establish its case beyond all reasonable doubts and not all doubts, and such rule does not warrant acquittal of accused by resorting to surmises, conjunctures or fanciful consideration [Yogesh Singh Vs. Mahabir Singh & Ors., 2017(11) SCC 195].
46. In view of above discussions, prosecution able to prove its case beyond reasonable doubt against accused Suresh Singh @ Suresh for commission of offence u/s 302 IPC. Accused Suresh Singh @ Suresh is found guilty for the offence u/s 302 IPC and convicted accordingly.
47. Accused be heard on point of sentence.
Announced in the open Court (AJAY KUMAR JAIN)
On 11th April, 2019. ASJ02 (South)
Saket / New Delhi
SC No.6812/16, State Vs. Suresh Singh @ Suresh., FIR No.1484/2014, PS Mehrauli 11.04.2019 Page No. 24 of 24