Delhi District Court
State vs Munna Singh @ Pappu on 29 January, 2011
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IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS, DELHI
SESSIONS CASE No. 94/2010/2007
State Vs Munna Singh @ Pappu
S/o Tehsildar Singh
R/o Village, Dehra, Post Bagulari
P.S Bhind Distt. Bhind M.P.
Present Add: D130, Mangolpuri,
Delhi
FIR No. 625/2007
Police Station Mangolpuri
Under Sections 302 IPC
Date of Institution: 12.11.2007
Date when arguments 24.01.2011
were heard
Date of Judgment 27.01.2011
State Vs. Munna
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JUDGMENT
1. The SHO of P.S: Mangolpuri has challaned the accused to face trial for the offence under Section 302 IPC. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with provisions of Section 207 Cr.P.C has committed the case to the court of Sessions as provided under Section 209 Cr.P.C.
BRIEF FACTS OF THE CASE
2. The prosecution case is that on 14.08.2007 on receipt of DD No. 29B, SI Joginder Singh along with Constable Tasveer went to the spot at D130, Mangolpuri where SI Suresh Kumar and Constable Harphool were present with other persons. They found the dead body of one boy aged about 7/8 years in the veranda of the third floor with injuries on his neck, face, waist and other parts of the body. The dead body was identified by one Raju the father of the deceased boy who stated that accused Munna has killed his son. Without wasting time, SI Joginder Singh sent ASI Suresh along with Sonu to Sanjay Gandhi Hospital who was declared brought dead in the hospital. The statement of father of the victim namely Raju was recorded in which he stated that on 13.08.2007 at about 9.00 p.m in D Block park his son Sonu was playing and he was also present there. He asked his son to go to the State Vs. Munna 3 house but he replied that he would come to the house later on. But the child did not come to the house in the night so in the morning on 14.08.2007, he (Raju) went to trace his son Sonu.
One Inder Kumar met him on the way and he informed that he had seen Sonu with Munna who is living at D130 Mangolpuri on rent. Thereafter, he (Raju) and his brother in law Babu Lal came to the said place at D130 Mangolpuri and found there his son Sonu lying unconscious outside the room and the white TShirt worn by Sonu was not the same which he had on him in the last night. Accused Munna was trying to run and was overpowered by them.
On the statement of the father of the victim, SI Joginder made endorsement and sent the rukka to the police station for registration of FIR. The crime team and photographer were called at the spot. Senior officers were intimated about the crime through special messenger. The earth control and blood stained clothes samples were taken from the spot. The accused was arrested and his personal search was conducted. The disclosure statement of the accused was recorded. The accused got recovered blood stained TShirt of victim Sonu from Parchatti in the bathroom and also got recovered his shoes. The site plan was prepared. The statement of witnesses under Section 161 Cr.P.C were recorded. The postmortem report was obtained during investigation and on completion of investigation the accused was challaned, as referred State Vs. Munna 4 before.
CHARGE AND PLEA OF ACCUSED:
3. The prima facie case for the offence under Section 302 IPC was found to be made out against accused, so the accused was charged accordingly on 15.01.2008 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In support of its case the prosecution has examined 19 witnesses in all. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witness recorded in the court.
5. PW1 is Sh. Raju, the father of the victim. He deposed that he had five sons namely Deepak, Sonu, Nitin, Monu and Suja. On 13.08.2007, he was sitting in the park and his son Sonu was playing in the park. He asked his son to go to home with him to which he (his son) replied that he will come after some time. But his son did not come back till late night. He tried to search his son but in vain. On the next day morning Sonu did not come back to home. He again tried to trace out his son but could not trace him out. At about 1.00 p.m, his neighbour Inder State Vs. Munna 5 Kumar met him and told him that he had seen his son Sonu with Munna and they were going towards D Block, the house of Munna/accused. He along with Inder Kumar and his brother in law Babu Kumar went to the house of accused and went upstairs to second floor (Tisri Manjil) to the house of Munna. He saw that his son was lying on the floor and his face was blue. His neighbour Inder Kumar made a call to the police. Inderjeet also told him (PW1) that he had seen his son with accused Munna on 13.08.2007, on which accused tried to run away. He along with Inder Kumar tried to chase the accused and overpowered him at the stairs. His son was removed to Sanjay Gandhi Memorial Hospital where doctor declared him (his son) brought dead. His statement was recorded by the police in the hospital which is proved as Ex PW 1/A. Thereafter he along with police officials, Inspector and staff came at the spot. IO prepared site plan. Blood sample was lifted with the help of cotton. Blood stained pieces of floor and earth control of same floor were also lifted and were kept in a plastic container and sealed. This witness further stated that the sleepers of his son were kept in a pullanda and sealed. Same was taken into possession. Accused got recovered one blood stained Tshirt of his son which was also kept in pullanda and sealed. Thereafter he went to mortuary of Sanjay Gandhi Memorial Hospital and identified the dead body of his son. The identification memo is proved as Ex PW 1/B. After the postmortem, the dead body was handed over to him. Handing over State Vs. Munna 6 memo of dead body is proved as Ex PW 1/C. This witness has also identified the chappals, TShirt, pant and vest of his son as Ex P1 to P4 respectively.
6. PW2 is Dr. Meenakshi. She stated that on 14.08.2007, she was working as CMO at Sanjay Gandhi Memorial Hospital. On that day, a dead body of a male was brought in casualty with alleged history of being beaten by some person. On examination, she was found pulseless. BP was not recordable. There were multiple bruises on both thighs, left part of cheek, in the region of right cheek and right forearm. There were multiple bruises on the upper part of chest and middle of left side of abdomen. There were also bruises on the back of the body. This witness further deposed that he had advised ECG which showed straight lines and hence confirmed death. Thereafter the body was sent to mortuary. He proved his detailed report as Ex PW 2/A.
7. PW3 is Sh. Inder Kumar. He stated that he is working as driver of a tanker. On 13.08.2007, he was coming back from his job. At about 10.30/11.00 p.m, when he reached near Kala Mandir Cinema, he noticed that one boy namely Sonu who used to reside near his house was with accused Munna. Accused Munna was going towards his house along with Sonu. This witness further deposed that accused Munna is State Vs. Munna 7 known to him as he is residing in the same locality in D130 and also used to normally sit and drink on Ice shop. Whenever he (PW3) used to come back from his job, accused Munna was seen by him sitting on the ice shop. Thereafter, he went home. On the next day, when he was going to his job, Raju father of Sonu along with his brother in law met him and asked him whether he had seen his son Sonu as he had not come back home since last night. He told him that he had seen his son Sonu last night in the company of accused Munna. He took Raju father of Sonu and his brother in law to the house of accused Munna. They saw Sonu lying seriously injured in the veranda on the third floor of the house of accused Munna. Accused Munna tried to run away with a bag but they overpowered him. In the process he fell and received some injuries. Someone informed the police at 100 number. Local police came at the spot and accused was arrested. The statement of this witness was also recorded by the police.
PW3 was again reexamined by Ld APP for the State in which he stated that he did not visit the house of accused Munna with Raju and Babu Lal. He remained standing on the third floor with the public. The address of accused Munna is D130, gali no. 4, Mangolpuri. He further deposed that he went on the third floor with the public and at that time he saw Sonu lying in an injured condition in the veranda, outside the room of the house of accused Munna. He also admitted that State Vs. Munna 8 he had seen accused Munna trying to run away with the bag but was overpowered by all in the staircase and also that he had not visited the house of accused with Raju and Babu Lal because he had gone to the house of accused only later on with the public.
8. PW4 is Babu Lal. He stated that Sonu aged about 78 years who is son of his brother in law was missing on 13.08.2007. On 14.08.2007, he along with his brother in law was searching Sonu near Park DBlock. At about 1.00 p.m, Inder who resides in the gali of Raju met them who told that Sonu was seen with Munna who resides at D130, Mangolpuri. He along with Sonu and Raju went upstairs on second floor i.e the house of accused Munna. He saw that Sonu was lying in unconscious condition on the second floor, outside the room and there were injuries on head/forehead, arms and shoulders of Sonu. On seeing them, accused tried to run away but was overpowered. Raju made a call at 100 number. PCR came there and Sonu was removed to Sanjay Gandhi Memorial Hospital. Raju and Johri Lal identified the dead body of Sonu. Thereafter postmortem was conducted. After postmortem dead body was handed over to Raju. His statement was recorded by the IO.
9. PW5 is Johri Lal who is a meat seller. He deposed that in the year 2007, he identified the body of Sonu son of his brother in law State Vs. Munna 9 Raju at Sanjay Gandhi Memorial Hospital mortuary. After postmortem the body was handed over to Raju. The statement of this witness was recorded by the police regarding identification of the body which is proved as Ex PW 5/A.
10. PW6 is Mange Ram who stated that he knew accused Munna Singh as he was his tenant in a room on the second floor at a monthly rent of Rs 1,000/ in the year 2007. He had given the room on rent to Munna only about a month before 13.08.2007. No rent agreement was executed in writing. It is further stated by this witness that on the night of 13.08.2007, the accused was playing his T.V at a loud voice. He, therefore, went to his room to ask him to slow down the sound of the TV. At that time, he saw a boy in his room. Later he came to know that the name of the boy was Sonu and he had expired. Accused was also present in the room with the boy when he went there. Accused was arrested by the police. The police gave him information about his arrest. The arrest memo is proved by this witness as Ex PW 6/A.
11. PW7 is Constable Harphool. He stated that on 14.08.2007, he was posted at P.S Mangolpuri and was on emergency duty with ASI Suresh Kumar. On that day, on receipt of DD No. 28B, he along with ASI Suresh Kumar reached at D130, Mangolpuri. SI Joginder Singh State Vs. Munna 10 along with Constable Tasveer also came at the spot. A boy aged about 78 years named Sonu having injuries at eye, neck, face, back and other parts of the body was lying there. He was wearing a white T Shirt and Kathayi colour pant. In the meanwhile, Raju came there and identified the boy as Sonu, his son. Raju also produced the accused Munna telling that Munna had beaten his son. SI Joginder Singh along with ASI Suresh took Sonu to Sanjay Gandhi Memorial Hospital. He and Constable Tasveer were left to guard the spot. After sometimes, SI Joginder Singh came at the spot with Raju and recorded the statement of Raju, prepared the rukka and sent him at the police station for registration of FIR. Thereafter, he returned back at the spot and handed over the copy of FIR and rukka to SHO Om Prakash. The crime team was called. The photographer of the crime team took photographs of the spot and the report was submitted to the SHO. The blood lying on the earth, blood earth and earth control were seized. One T shirt lying over the roof of the bathroom having tattoo on it was also seized after keeping the same in a pullanda which was sealed with the seal of OPS. A pair of rubber chappals which were lying outside the door of the room, identified by complainant Raju as the chappals of his son Sonu on which "Payal" was written were kept in a piece of white cloth and was sealed with the seal of OPS and seized. On interrogation, accused Munna gave a disclosure statement and disclosed that he can get recovered his shoes with which State Vs. Munna 11 he had kicked Sonu. SHO got conducted the postmortem of deceased Sonu. The body after postmortem was handed over to his father Raju. After postmortem, the doctor handed over the blood gauze piece, sealed pullanda containing the clothes of the deceased and the sample seal to duty Constable Satish who handed over the same to the SHO which were seized by the IO vide memo Ex PW 7/A. He then came at the spot along with SHO. Constable Tasveer was present at the spot. Accused Munna was arrested vide arrest memo Ex PW 6/A and his personal search was also conducted and thereafter he was brought to the police station and case property was deposited in the malkhana.
As the testimony of this witness (PW7) was not in complete consonance with his previous statement, he was crossexamined by Ld Additional Public Prosecutor. During crossexamination, he admitted that SI Joginder sent ASI Suresh to Sanjay Gandhi Memorial Hospital along with Sonu and that after doing investigation for sometime on the spot, SI Joginder Singh left him and Constable Tasveer on the spot with accused Munna and left to Sanjay Gandhi Memorial Hospital along with complainant Raju. Thereafter SI Joginder Singh along with Raju returned to the spot and recorded the statement of Raju on which the present case was registered. On his return to the police station after the registration of FIR, SI Joginder Singh also handed over the accused Munna to IO Inspector Om Prakash. IO prepared the site plan at the spot.
State Vs. Munna 12 After taking into possession the pair of chappal, the accused Munna was sent for medical examination along with Constable Tasveer. Thereafter, the inquest papers of deceased Sonu were prepared by the IO and the dead body was subjected to postmortem examination. After the postmortem examination, IO returned to the spot and met Constable Tasveer Singh who produced the accused Munna Singh @ Pappu. Thereafter accused Munna was arrested who made the disclosure statement. As per the disclosure statement, accused Munna led the police party and got recovered one T Shirt colour green and white which was blood stained having Tom and Jerry Cartoon on its front portion from the Parchhati of bathroom situated outside his room. Thereafter accused Munna Singh voluntarily led the police party towards the eastern side of the third floor of his tenanted room and got recovered one pair of shoes which were of military colour and black colour of Campus company on which "Best in the Class - Campus" was written. The aforesaid two shoes were taken into possession by turning the same into a pullanda sealed with the seal of OPS. This witness has also identified pair of small chappals, one TShirt having cartoons of Tom & Jerry on which Jerry & Tom product is written, pant and vest worn by the deceased and pair of shoes recovered at the instance of accused as Ex P1 to Ex P5 respectively.
12. PW8 is SI M.D. Meena. He deposed that on 14.08.2007, he was posted as Crime Team Incharge, NW and on the instructions of IO he reached D130, Mangolpuri, Delhi. After inspecting the spot i.e third floor inside and outside the room, he prepared the report and handed over the same to the IO.
13. PW9 is Constable Satish Kumar. He stated that on 14.08.2007 he was posted at P.S Mangolpuri working as Wireless Operator with SHO Mangolpuri Inspector Om Prakash Sharma. On that day, he joined the investigation with him. Dr. Manoj Dhingra after postmortem at Sanjay Gandhi Memorial Hospital handed over two sealed pullandas and one sample seal. He handed over the aforesaid two sealed pullandas and sample seal to SHO Inspector Om Prakash which were taken into possession vide memo Ex PW 7/A. His statement was also recorded. On being put leading question to this witness, he admitted that the name of deceased whose postmortem was conducted was Sonu S/o Raju.
14. PW10 is Dr. Manoj Dhingra who conducted the postmortem on the body of deceased Sonu S/o Raju. He deposed that the body was sent by Inspector Om Prakash, SHO Mangolpuri with alleged history of found dead. On examination following injuries were found: State Vs. Munna 14 External Injury:
1. Bruise present over left ear of seize 1 x 1 cm and on right ear of size 2 x 1 cm.
2. Bleeding from nose present
3. Bruise present over right shoulder of size 3 x 2 cms
4. Bruise present over bilateral chick over face of size 3 x 2 cms.
Internal Injury:
1. Sub scalp hematoma present over bilateral occipital bone and left front parietal region. Generalized massive subdural haemotoma and sub areconoid hematoma present over occipital region.
Chest:
Fracture 2 to 10 rib on right side. Chest cavity contained about 500 ml of blood liquid and clotted. Laceration of right lung size 3 cm x 2 cm x 1 cm.
Abdomen:
Abdomen cavity contained 1.5 liters of liquid and clotted blood with laceration of right lobe of liver.
Opinion:
Cause of death was comma and heamorrghic shock as a result of head injury. All injuries were antemortem in nature. Time since death was approximately 18 hours. Total number of inquest papers are 13. He handed over the clothes to IO. His detailed report is proved as Ex PW State Vs. Munna 15 10/A.
15. PW11 is SI Manohar Lal. He stated that on 05.10.2007, he was posted as a Draftsman in DCP office Ashok Vihar. On that day, at the instructions of IO Inspector Om Prakash, he came at the police station and in the company of SI Joginder Singh, reached D130, Mangolpuri. Thereafter he inspected the spot on the pointing out of SI Joginder Singh, took notes and measurements and thereafter on 06.10.2007, he prepared the scaled site plan and on 07.10.2007 handed over the same to IO Inspector Om Prakash. His statement was recorded. He destroyed the rough notes after preparing the scaled site plan which is proved as Ex PW 11/A.
16. PW12 is HC Sunil Kumar. He deposed that on 14.08.2007, he was posted at P.S Mangolpuri. On that day, duty officer Durgesh Kumar handed over the copy of FIR of the present case and he delivered the same to Joint C.P. NR, DCP, NW, Additional DCP1, Additional DCPII, ACP Sultanpuri and to learned Area M.M Sh. Sanatan Prasad at his residence and also delivered one copy at DO/Control Room, DCP/ PCR. Thereafter he returned to the police station at 10.50 p.m.
17. PW13 is Constable Tasveer Singh. He deposed that on State Vs. Munna 16 14.08.2007 he was posted at P.S Mangolpuri. On that day on receipt of DD No. 29B, he along with SI Joginder Singh reached D130, Mangol Puri. ASI Suresh along with Constable Harphool, One public witness Raju S/o Ram Chander and other public persons were also present there. This witness corroborated with the statement of PW7 Constable Harphool with regard to proceedings done at the spot as well as arrest and disclosure statement of accused.
PW13 further deposed that on 16.09.2007 he joined the investigation of this case and on the instructions of the IO, collected seven sealed pullandas and two sample seals from the MHCM HC Niranjan Singh vide RC No. 246/21/07 and deposited the same at FSL Calcutta. On his return, he handed over the receipt to the MHCM. He also stated that the exhibits have not been tampered with as soon as they remained in his custody. This witness further corroborated with the statement of PW7 Constable Harphool with regard to identification of case property of this case.
18. PW14 is HC Durvesh Kumar. He deposed that on 14.08.2007, he was posted at P.S Mangolpuri as DO. On that day Constable Harphool brought a rukka sent by SI Joginder Singh and he handed over the said rukka to Computer Operator who registered the FIR of the present case which is proved as Ex PW 14/A. He made State Vs. Munna 17 endorsement on the rukka which is proved as Ex PW 14/B. Thereafter further investigation was handed over to Inspector Om Prakash.
19. PW15 is HC Mahender Singh. He deposed that on 14.08.2007 he was posted as Photographer in crime team North West District. On that day, he along with Crime Team Incharge SI M.D Meena and other staff reached house no. D130, Mangolpuri and took 12 photographs from different angles in the room situated at third floor of the aforesaid premises. The negatives are proved as Ex PW 15/P1 to Ex 15/ P12 respectively and the positives are proved as Ex PW 15/P13 to Ex PW 15/P24 respectively.
20. PW16 is HC Niranjan Singh. He deposed that on 14.08.2007, he was posted at P.S Mangolpuri as MHCM. On that day, Inspector Om Prakash Sharma deposited one pullanda and one envelope sealed with the seal of SGMH Mortuary, Mangolpuri along with one sample seal of the aforesaid hospital, six pullandas all sealed with the seal of OPS in respect of which he made entry at serial No. 6442 in register No. 19. He proved copy of the same consisting four pages as Ex PW 16/A collectively.
This witness further stated that on 16.09.2007, six pullandas duly sealed along with sample seals along with FSL form were sent to State Vs. Munna 18 CFSL Kolkata through Constable Tasveer vide RC No. 246/21 who on return, on 25.09.2007 handed over the receipt to him. He proved the copy of road certificate register containing the aforesaid entry as Ex PW 16/B. This witness further deposed that the exhibits had not been tampered with as long as they remained in his possession.
21. PW17 is SI Suresh Kumar. He stated that on 14.08.2007, he was posted at P.S Mangolpuri as an ASI. On that day on receipt of DD No. 28B which is proved as Ex PW 17/A, he along with Constable Harphool reached at the spot at D130, Manglpuri where Raju S/o Ram Chander along with other persons met them. This witness corroborated with the statement of PW7 Constable Harphool with regard to proceedings done at the spot and registration of FIR. PW17 also deposed that one pair of chappal lying outside the room were also lifted from the spot and were kept in a pullanda which was sealed with the seal of OPS and seized vide memo Ex PW 17/B. After leaving Constable Harphool, they went to Sanjay Gandhi Memorial Hospital Mortuary where postmortem of the deceased was got conducted. Constable Satish handed over the pullanda containing clothes of the deceased, one pullanda containing blood of the deceased which were seized vide memo Ex PW 7/A. After postmortem, the body was handed over to Raju. Thereafter they came back at the spot. Accused Munna was arrested vide State Vs. Munna 19 arrest memo Ex PW 6/A and his personal search was conducted vide memo Ex PW 17/C. On interrogation, accused Munna gave a disclosure statement which is proved as Ex PW 17/D and got recovered one T Shirt of white and green colour from the Parchhati of his bathroom on which 'Tom & Jerry Cartoon' were printed and written. There was blood on the collar and the right arm of the T Shirt. The T Shirt was kept in a pullanda and sealed with the seal of OPS and seized vide memo Ex PW 17/E. Thereafter accused got recovered his military and black colour shoes on which "Campus" was written from the room. The shoes were kept in a pullanda and sealed with the seal of OPS and the pullanda was then seized vide memo Ex PW 17/F. Accused was then brought to the police station and the case property was deposited in malkhana. His statement was recorded by the IO. This witness corroborated with the statement of PW7 Constable Harphool with regard to identification of case property of this case.
22. PW Constable Sandip and PW ACP Om Prakash are given same number PW18. Therefore, for clarity PW Constable Sandip is remembered as PW18A who was working as DD writer at Police Station Mangolpuri. He deposed that on 14.08.2007 at about 1.25 p.m a wireless message was received and the same was recorded by him in DD register Part B DD No. 28B. He proved the copy of original register DD No. 28B State Vs. Munna 20 as Ex PW 18/A. On the same day at about 1.26 a.m he again received a message of PCR which was recorded in DD No. 29B in DD register Part B and proved the copy of the same as Ex PW 18/B. Thereafter the copy of said DD was handed over to SI Joginder for investigation who along with Constable Satbir left the police station.
23. PW18 is ACP Om Parkash who has deposed that on 14.08.2007 he was posted as SHO at P.S Mangolpuri. On that day, he received information about DD No. 29BA that a boy had died in house no. D130, Mangolpuri, Delhi after he was administered something by someone. Since he was busy in some other important work, he directed SI Joginder to reach the spot and make inquiries. After finishing the other official work, he also reached the spot at about 4/4.30 p.m. This witness corroborated with the statement of PW17 SI Suresh Kumar with regard to inspection of crime team and preparation of seizure memos Ex PW13/A and Ex PW 17/B. This witness further deposed that he along with SI Joginder went to mortuary in his government vehicle and instructed Constable Tasveer to take the suspect Munna for his medical examination. The complainant also accompanied them to the mortuary. He prepared inquest papers which are proved as Ex PW 18/A and also recorded identification statements which are proved as Ex PW 1/B and Ex PW State Vs. Munna 21 5/A. After the postmortem the dead body was handed over to the relatives of the deceased vide receipt Ex PW 1/C. ASI Suresh was in the mortuary for supervising the dead body. After postmortem, doctor handed over to Constable Satish two sealed pullandas sealed with the seal of SGMH Mortuary Mangolpuri containing blood and clothes of deceased along with sample seal who produced the same before him which were seized vide memo Ex PW 7/A. He prepared the site plan at the spot at the instance of complainant before leaving for mortuary. The site plan is proved as Ex PW 18/B. This witness corroborated with the statement of PW17 SI Suresh Kumar with regard to arrest and disclosure statement of accused and also recovery of case property.
PW18 ACP Om Parkash also stated that he prepared the site plan of place of recovery which is proved as Ex PW 18/C. He also recorded the statements of the witnesses and collected the postmortem report. The case property was sent to CFSL Kolkata through Constable Tasveer and MHCM. The scaled site plan was collected by him from the draftsman. Thereafter he obtained the opinion from autopsy surgeon regarding injuries and shoes recovered at the instance of accused by producing the same before it. He proved his application as Ex PW 18/D. He completed the investigation and filed the charge sheet. This witness again corroborated with the statement of PW17 SI Suresh Kumar with regard to identification of case property of this case. PW18 further State Vs. Munna 22 stated that he collected the FSL result and filed the same before the court which is proved by him as Ex PW 18/F.
24. PW19 is Inspector Joginder Singh. He deposed that on 14.08.2007 he was posted at P.S Mangolpuri as SI. On that day on receipt of copy of DD No. 29B, he along with Constable Tasveer went to house no. D130, Mangolpuri, Delhi. At the spot, ASI Suresh, Constable Harphool, complainant Raju, father of deceased and accused Munna were found present. He found a boy aged about 78 years lying in injured condition in the varanda in front of house no. D130 who was identified by Raju as his son Sonu. Raju also told him that a T Shirt which the boy was wearing at that time and that he was not wearing the same when he went missing on the previous day. The injured was sent to the hospital through ASI Suresh. He made inquiries from accused Munna who was left in the custody of Constable Tasveer. Thereafter he along with the complainant Raju went to Sanjay Gandhi Memorial Hospital. He collected the MLC of the child from ASI Suresh. The child Sonu was declared brought dead by the doctor. He along with complainant returned to the spot and recorded the statement of complainant which is proved as Ex PW 1/A. He made an endorsement on the same and prepared rukka which is proved as Ex PW 19/A and handed over the same to Constable Harphool for getting the FIR registered at Police Station Mangolpuri.
State Vs. Munna 23 This witness corroborated with the statement of PW18 ACP Om Parkash with regard to inspection of crime team, other proceedings done at the spot, preparation of inquest papers, arrest and disclosure statement of accused and recovery of case property.
It is further stated by PW19 Inspector Joginder Singh that he along with Inspector Mahesh went to the spot with draftsman SI Manohar and the draftsman took the rough notes on 05.10.2007. Thereafter SHO obtained the opinion from the autopsy surgeon regarding the injuries and the shoes recovered at the instance of accused by producing the same before autopsy surgeon. This witness corroborated with the statement of PW18 ACP Om Parkash with regard to identification of case property of this case. PLEA AND DEFENCE ACCUSED
25. In the statement under section 313 Cr.P.C the accused has either denied the questions based on incriminating prosecution evidence put to him or has expressed his ignorance about them. According to him it is a false case against him and the witnesses are interested witnesses. He is innocent. He has been falsely implicated in this case. He has no role to play in the alleged incident in any manner. Nothing was recovered from his possession or at his instance. He was sleeping in his room, after he returned from work in the latenight from Azadpur Mandi where he State Vs. Munna 24 used to do work of unloading and loading. Police officials broke open the door of his room, they removed him to police station forcibly where he was mercilessly beaten and was forced to sign on blank papers later on he was falsely implicated in this case. He also stated that he was forced to sign on blank papers in police station which were later on converted into various memos including the alleged disclosure statement. In the room adjoining his room on the floor 34 boys were also residing who were present at the time when he returned back from work. He was not having any television and VCR in his room. He did not know any person by the name of Inder. He was residing at the aforesaid address only for a month prior to the incident. He never ever was involved in any criminal activity of any sort.
The accused did not lead and evidence in defence. ARGUMENTS
26. The learned Chief Public Prosecutor for the State has argued that PW1 Rajvir the father of the victim and his brotherinlaw PW4 Babu Lal have proved that PW3 Inder has informed them that he has seen the accused and the victim and the witness PW3 Inder is a witness of last seen evidence and has testified to the effect in his statement that accused tried to run away from the spot so that he had a guilty mind and he was overpowered and arrested. The landlord of the accused PW6 State Vs. Munna 25 Babulal has proved that the victim was in the room with the accused on the fateful night. The accused got recovered his shoes and Tshirt of the victim from the bathroom. Therefore, prosecution has been able to prove complete chain of circumstances appearing against the accused in this case beyond reasonable doubt so accused is liable to convicted of the charge under section 302 IPC.
27. It is argued by learned Amicus curie for accused that the postmortem of the victim child was conducted on 14/8/2007 at 5 PM and the time of death given was 12 hours before the postmortem was conducted so the death of the victim happened at about 5 AM in the morning. PW3 Inder who was produced as witness of last seen evidence stated that he did not know the house of the accused. It is argued that the landlord Mange Ram did not state that accused was fond of drinking. In the DD 28 B at 11:30 PM it is reported that there was a quarrel in the gali. Another DD No. 29 B recorded at 1.26 PM shows that child was given poison. PW3 Inder Kumar has stated in the crossexamination that he did not tell the address of the accused nor he took the father of the victim to the house of the accused. The Tshirt worn by the child at the time of recovery of dead body was not his as per statement of father of the victim. In the room adjoining the rented room of the accused three boys were living but they were not made prosecution witnesses. The State Vs. Munna 26 parents of the deceased lived at a distance of four gali from place of incident. Therefore, due to shortcomings in the prosecution case it has failed to prove its case against the accused beyond reasonable doubt and accused is entitled to be acquitted of the charge of murder framed against him.
FINDINGS
28. I have heard the learned Chief Public Prosecutor for the State, learned Amicus curie for the accused and have gone through the record of the case and relevant provisions of law. The present case is based on circumstantial evidence. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
State Vs. Munna 27
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
29. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence.
{See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down State Vs. Munna 28 that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused State Vs. Munna 29 or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be State Vs. Munna 30 consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully State Vs. Munna 31 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the State Vs. Munna 32 circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(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 State Vs. Munna 33 accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
LAST SEEN EVIDENCE
30. PW1 Raju the father of the victim boy has stated that he was searching for his son Sonu who did not come in the last night. His neighbour Inder Kumar met him and he told him that he had seen his son Sonu with Munna (accused) and they were going towards D block, the house of Munna. He along with Inder Kumar and his brotherinlaw State Vs. Munna 34 Babu went to the house of accused and went upstairs to the second floor. He saw that his son was lying on the floor and his face was blue. His neighbour Inder made a call to the police. Similar statement is made by PW4 Babu lal the brotherinlaw of the father of the victim boy. He also stated that he alongwith his brotherinlaw were searching Sonu near Park, DBlock. At about 1 PM Inder who resides in the Gali met them and he told them that victim Sonu was seen with the Munna who resides at D130, Mangol Puri.
31. Similarly PW3 Inder Kumar has made statement in the examinationinchief that 13/8/2000 he was coming back from his job. At about 1030/11 PM when he reached near Kala Mandir Cinema, he noticed that one boy named Sonu who used to reside in his house was with Munna accused then present in the court. Accused Munna was going towards his house along with Sonu. Accused Munna is known to him as he used to normally used to sit and drink on an ice shop and used to reside in the same locality in D130. Whenever he used to come back from his job accused Munna was seen by him sitting on the ice shop. On the next day when he was going to his job, Raju father of Sonu along with his brotherinlaw met him and asked him whether he had seen his son Sonu as he had not come back home since last night. He (PW3) told him that he had seen his son Sonu last night in the company of accused State Vs. Munna 35 Munna. He took Raju father of Sonu and his brotherinlaw to the house of accused Munna.
32. As pointed out by learned Amicus Curie for the accused this witness has stated in the crossexamination that he had not stated to the police in his statement under section 161 CrPC that accused Munna was known to him as he used to normally sit and drink on an ice shop and he used to reside in the same locality in D130. He also stated that he did not state to the police any statement that whenever he used to come back from his job accused Munna was seen sitting by him on the ice shop. However he admitted it correct that he has stated to the police in his statement under section 161 Cr.P.C that on the next day when he was going to his job, Raju, father of the deceased, met him along with his brotherinlaw although this witness was confronted with his previous statement under section 161 Cr.P.C only to the limited extent that the phrase 'he was going to his job' is not recorded in it. He also stated in the crossexamination that he had not told the address of Munna to Raju and neither he had taken Raju to the house of accused Munna. Due to contradiction in the statement made by this witness in the examination inchief and in the crossexamination he was reexamined on behalf of the State. In the reexamination he admitted that the address of accused is D130, Gali No.4, Mangol Puri. He admitted in the reexamination that State Vs. Munna 36 he went to the third floor with the public and at that time he saw Sonu lying in an injured condition in the veranda outside the room of the house of accused Munna. Therefore, although this witness PW3 Inder has made somewhat contradictory statement in the examinationinchief and in the crossexamination but by and large he has supported the prosecution case. The two important witnesses, the father of the victim and his brotherinlaw Babu Lal have testified that PW3 Inder has informed them that he has last seen victim and accused going together towards house of accused in the night before. These two important witnesses along with PW3 Inder have reached the house of the accused to find dead body of the victim. Therefore, despite shortcomings and contradictions in the statement of PW3 Inder which are largely made up in the reexamination by him, I am of the view that the prosecution has been successful in proving that the accused was last seen with victim Sonu. More so, when the landlord of the accused living in the same house PW6 Mange Ram has also stated in his statement that on the night of 13/8/2007 the accused was playing his TV at a loud voice. He went to his room and asked him to slow down the sound of the TV. At that time he saw a boy in his room. Later he came to know that name of the boy was Sonu and he had expired. Therefore, the landlord of the accused is also an important witness of last seeing the accused and the victim together in the night before the homicidal death of the victim.
State Vs. Munna 37 DEAD BODY OF THE VICTIM FOUND NEAR THE RESIDENCE OF THE ACCUSED
33. It is not disputed during the evidence and arguments that child Sonu died a homicidal death. His dead body was recovered in the veranda adjacent to the room in occupation of the accused at the second floor of the building. The accused in the statement under section 313 Cr.P.C has also admitted that he was living as tenant for the last one month in the room in question. The bloodstains were lifted from the said Veranda and the dead body of the victim was taken to the hospital for postmortem examination. The dead body of the victim Sonu was seen, at the said place , by his father and his brotherinlaw before it was taken for postmortem examination.
MEDICAL EVIDENCE
34. The MLC of the victim boy Sonu is proved by PW2 Dr. Meenakshi as Ex PW 2/A. The postmortem report of the victim is proved as Ex PW 10/A by PW10 Dr. Manoj Dhingra. The cause of death given in the postmortem report is coma and haemorrhage shock as a result of head injury and laceration of liver and lung.
State Vs. Munna 38 RECOVERY OF INCRIMINATING ARTICLES AT THE INSTANCE OF ACCUSED
35. The accused gave disclosure statement ExPW 17/D to the investigating officer indicating that his Rs. 1000/ were stolen and he suspected the victim Sonu to have committed theft of the same. He slapped him and gave fist blows and gave kick blows with his shoes on his feet. He saw blood oozing out of nose of the victim and the bloodstains at the Tshirt of the victim. He took out the Tshirt of the victim and hid it the parchatti of the bathroom and after giving bath to the victim gave his white Tshirt to be worn by the victim. The accused led the police party and got recovered the Tshirt of the victim from the parchatti vide memo Ex PW 17/E. He got recovered the shoes which he had on his feet when he gave foot kick blows to the victim vide memo Ex PW 17/F. The prosecution witnesses have proved the Chappal of the victim as Ex P1, the Tshirt of the victim Ex P2, pant Ex P3, the vest Ex P4 and pair of shoes Ex P5. It is pertinent to note that after the post mortem was conducted shoes Ex P5 of the accused were sent during investigation so PW 18 the autopsy surgeon who examined them and gave report Ex PW 18/E giving the opinion that the injuries and the marks on the body of the victim detailed in the MLC can be caused by State Vs. Munna 39 shoes of offence examined in reference to P.M. No. 714/2007. This makes recovery of the shoes of the accused more important for the prosecution case. Although as per FSL report Ex PW 18/F the human blood was detected on the pant and the Tshirts of the victim was recovered by police but the blood group could not be detected to make FSL report more meaningful to show that the blood of the victim and the blood stains on the Tshirt and pant of the victim were of the same group.In Keshavlal v. State of Madhya Pradesh, (SC) 2002 Cri.L.J. 1776 S.C. :
A.I.R.2002 (SC) 1221 :2002(3) S.C.C. 254 : 2002(2) Scale 410 :
2002(2) J.T. 628 SC, it was held:
"Nonexamination of the finger print expert has not, in any way, affected the case of the prosecution because it has come on record that before the seizure of the weapon of offence many persons had handled it. Though the report of the Serologist is not available on the record, yet the report of the Chemical Analyser clearly and unequivocally shows that the clothes of the appellant and the weapon of offence were stained with human blood. Non ascertainability of the blood group cannot be made a basis to discard the evidence of the witnesses who otherwise inspire the confidence of the Court and are believed. No fault can be found with the judgment of the High Court by which the findings of the acquittal recorded by the trial Court were set aside."
State Vs. Munna 40
36. In the present case the recovery of the dead body in the veranda in front of the door of the room in occupation of the accused is not disputed nor the presence of blood at or near the dead body and the Tshirt and pant of the victim, nor detection of the blood group of these articles in the FSL result is insignificant. Therefore, the recovery of the shoes of the accused and the bloodstained Tshirt and the pant of the victim at the instance of the accused is also incriminating circumstance appearing against the accused in this case, as proved by the prosecution. ACCUSED TRIED TO ESCAPE
37. In a case based on circumstantial evidence the fact that the accused absconded or tried to abscond has great relevance in the face of the presence of the last seen evidence proved by the prosecution in a case based on circumstantial evidence.
In Kalloo Passi Vs. State 2009 (4) LRC 129 (Del) (DB) High Court of Delhi, it was observed by Division Bench of our Hon'ble High Court as follows:
"16. It is settled law that mere absconding by itself does not necessarily lead to a conclusion of a guilty mind. The act of selfpreservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of State Vs. Munna 41 evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused (see the decision of Supreme Court reported as Matru Vs. State of UP, AIR 1972 SC 1050)."
38. In the present case as already discussed the four witnesses produced by the prosecution PW3 Inder Singh, PW1 Raju the father of the victim, his brotherinlaw PW4 Shri Babu lal and PW6 Mange Ram the landlord of the accused have established the fact that the accused was last seen with the victim boy. Therefore, if it is established that accused absconded or tried to abscond then this is incriminating circumstance against the accused in the light ofKalloo Passi's case (supra).
39. PW1 Raju the father of the victim, PW3 Inder Kumar, State Vs. Munna 42 PW4 Babu lal in the statements made in the court have stated that accused tried to run away with an attachi case and was overpowered at the stairs. The fact that the dead body of the victim was found in front of the room of the accused and accused and victim were last seen together make the circumstance that accused tried to run away with the bag from the spot but was overpowered is extremely fatal for the accused in the light of Kalloo Passi's case (supra).
CRUCIAL CIRCUMSTANCES
40. When the accused is proved to be last seen with the victim a night before the dead body of the victim was found in the veranda in front of room in occupation of the accused, the accused is liable to explain the facts within his special knowledge leading to the death of the victim. There is caselaw also to the effect in somewhat similar circumstance. In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 relied upon by learned counsel forcomplainant it was held:
"16. The other circumstances listed above had also been finally established, once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or State Vs. Munna 43 about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accusedappellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 also relied upon by learned counsel for complainant the following observations were made:
"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
41. In the present case the accused is proved to be last seen with the victim by PW3 Inder Kumar which fact was narrated by him to the other two prosecution witnesses PW1 Raju and PW4 Babu lal. Further, State Vs. Munna 44 the landlord of the accused PW6 Mange Ram has indicated in his statement on oath before the court that he had seen the victim and accused together in the room rented out to the accused in the night before the dead body of the victim boy was found. Therefore, the accused was required to explain the circumstances leading to the death of the victim but he failed to do so in the statement under Section 313 Cr.P.C to raise any convincing plea nor he has lead evidence to rebut the presumption of guilt arising against him in this case in the light of Prabhakar Jasappa Kanguni's case (supra) and Dr. Ravindra Prakash Mittal's case (supra).. What is more the statement of the landlord PW6 Mange Ram that accused was playing his TV at a loud voice and he went to him to slow it down also indicates that accused raised the volume of the TV so that the cries of the victim, while being beaten by him mercilessly, are not heard by anybody in the building or in the neighbourhood. ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
42. Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution State Vs. Munna 45 case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).) The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).)
43. It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself State Vs. Munna 46 forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).)
44. In the present case the accused has failed to explain the circumstance in which he parted company with the deceased. He also tried to escape but was overpowered, as already stated. He has failed to explain as to why and under what circumstances the dead body of the victim was found in the veranda in front of the room in his occupation. In the statement under Section 313 Cr.P.C he took a false plea that he was sleeping in his room after his return from work in the latenight from Azadpur Mandi where he used to do the work of loading and unloading. But he failed to produce any witness from Azadpur Mandi to show that truthness in this statement. He also took a false plea that he was not having any TV or VCR in his room as again the statement on oath of the landlord produced by the prosecution. Admittedly, he was living in the room in question for the last about one month and has given advance rent of one month so there was no question of the landlord having any dispute State Vs. Munna 47 with accused or enmity towards him as he was in the tenanted premises for such a short duration. He has also not alleged in the statement under Section 313 Cr.P.C that the landlord was inimical towards him for any reason. Therefore, in the light of the above caselaw the false answer given by the accused and false defence taken by him are additional circumstances appearing against the accused and fills the missing link in the chain of circumstances appearing against the accused in this case. MURDER OR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
45. In the light of the above discussion it is clear that the prosecution has been able to prove the complete chain of circumstances appearing against the accused to prove that it is the accused and accused alone who has caused the unnatural death of the victim boy Sonu by mercilessly beating him. There is no evidence that persons occupying the room adjacent to room of accused are in any way involved in this murder.
46. The question which arises now is whether in the given facts and circumstances of the case the accused should be held a guilty for the offence under section 302 IPC or 304 IPC.
47. In the scheme of the Penal Code, 'culpable homicide' is State Vs. Munna 48 genus and 'murder' its specie. All 'murder' is culpable homicide, but not vice versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder' is culpable homicide not amounting to murder. For purposes of fixing punishment, proportionate to the gravity of this offence, the Code practically recognises three degrees of culpable homicide.{See, Sampuran Singh v State of Haryana 1980 Cr LJ 951, 955 (Punj) (DB)} .The first is, what may be called 'culpable homicide of the first degree'. This is the gravest form of culpable homicide which is defined in s 300 as murder. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of s 304. And then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment, provided for it, is also the lowest among punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of s 304 {See, State of Andhra Pradesh v Rayavarapu Punnayya AIR 1977 SC 45, 50, 1977 Cr LJ 1; Reg v Govinda ILR 1 Bom 342, 344; Mahabir Harso v State of Orissa 1996 Cr LJ 158 (Ori) (DB); Narasingh Challan v State 1997 Cr LJ 2204 (Ori) (DB); Dharni alias Dhaneswar Naik v State 1999 Cr LJ 2712 (Ori) (DB); Ruli Ram & anor v State of Haryana 2002 (7) AD 492 (SC); Abdul Waheed Khan alias Waheed & ors v State of Andhra Pradesh JT 2002 (6) SC 274;
State Vs. Munna 49 Bishek Mohananda v State 1998 Cr LJ 1489 (Ori) (DB); Ramakrishnan Nair alias Raju v State of Kerala 2000 Cr LJ 416 (Ker) (DB)}.
48. The terms of Sections 299 and 300 are almost identical as readily appears from the following tabular comparison{See, Shakti Dan v State of Rajasthan, 2007 Cr LJ 3426 (SC); Sunder Lal v State of Rajasthan, 2007 Cr LJ 3281 (SC) (FB); Rajinder v. State of Haryana 2006 Cr LJ 2926 (SC).}:
Section 299 Section 300
A person commits culpable Subject to certain exceptions,
homicide if the act, by which the culpable homicide is murder if
death is caused, is done the act by which the death
caused, is done
Intention
(a) with the intention of (1) with the intention of causing
causing death; or death; or
(b) with the intention of (2) with the intention of
causing such bodily injury causing such bodily injury
as is likely to cause as the offender knows to
death; or be likely to cause the death of
the person to whom the harm
is caused; or
(3) with the intention of causing
bodily injury to any person and the
bodily injury intended to be in
flicted is sufficient, in the
ordinary course of nature, to cause
State Vs. Munna
50
death; or
Knowledge
(c) with the knowledge that (4) with the knowledge that
the act is likely to cause death, the act is so imminently dangerous
that it must, in all probability,
cause death or such bodily injury
as is likely to cause death, and
without any excuse for incurring
the risk of causing death or such
injury as is mentioned above.
49. On a glance of the above table, it will be noticed that not only the actus reus, but also the mental elements of intention or knowledge, required by the two sections, are the same and the only distinction between the offences lies in the degree of risk to human life which the offender intends or knows. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.{See, Reg Vs Govinda ILR 1 Bom 342; Re Dadi Abdul Gaffoor AIR 1955 AP 24, 1955 Cr LJ 239; Sajjan Singh v State (1965) 67 Punj LR 1204.}
50. In the backdrop of the above case law, the factual position of the case is to be analyzed to know whether it is the case of murder or culpable homicide not amounting to murder. The prosecution case is that the accused slapped and has mercilessly beaten the victim by fists and State Vs. Munna 51 leg blows causing the death of victim Sonu. No deadly weapon is used, therefore the intention of the accused cannot be said to kill the victim nor to cause any such bodily injury as was likely to cause death and the purpose of the accused was to badly beat the victim to know about the stolen Rs. 1,000/. Therefore, the offence under Section 300 r./w Section 302 IPC is not attracted in the given facts and circumstances of the case. The accused is liable for culpable homicide not amounting to murder and the second part of Section 304 (II) IPC is attracted against him. RESULT OF THE CASE
51. In view of the above, the accused though charged for the offence under Section 302 IPC, is convicted for its minor offence under Section 304 (II) IPC. The judgment be sent to the server (www.delhidistrictcourts.nic.in). Let the accused be heard on the point of sentence.
Announced in the open court on this 27th day of January 2011 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Munna 52 IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS, DELHI SESSIONS CASE No. 94/2010/2007 State Vs Munna Singh @ Pappu S/o Tehsildar Singh R/o Village, Dehra, Post Bagulari P.S Bhind Distt. Bhind M.P. Present Add: D130, Mangolpuri, Delhi FIR No. 625/2007 Police Station Mangolpuri Under Sections 302 IPC ORDER ON SENTENCE
1. Vide my judgment dated 27.01.2011, the accused was convicted under Section 304 (II) IPC.
2. The Ld Chief Public Prosecutor has argued for deterrent punishment due to the grave crime committed by the convict Munna and the manner in which the deceased was kicked and given fist blows, badly which led to his death.
3. On the other hand, Ld Amicus Curie Sh Aseem Bhardwaj, Advocate has argued that convict/accused is a young man and is a poor fellow who used to do labour work. He belongs to a poor family and is married having two small children, one son aged about eight years and one daughter aged about three and half years and one brother who is studying in 11th standard and he is the sole bread earner of his family. Earlier he was doing loading and unloading work at Azadpur Mandi as a daily wager. He also has aged parents and has not been previously convicted for any offence. Therefore a lenient view may be taken against him, as he has spent more than 3 years and five and half months in jail so he should be sentenced to a period of imprisonment already undergone.
4. The punishment awarded should be proportionate to the crime committed by the convict/accused. The question of sentence is a matter of judicial discretion. The relevant considerations in determining the sentence, broadly stated, include the motive for and the magnitude of the offence, and the manner of its commission. {See Krishan v State of Haryana 1997 Cr LJ 3180 (SC)}. The determination of sentence in a given case depends on a variety of considerations; the more important being the nature of the crime, the manner of its commission, the motive, State Vs. Munna 54 which impelled it and the character and antecedents of the accused. {See Apren Joseph alias Current Kunjukunju & ors v State of Kerala AIR 1973; SC 1, 1973 Cr LJ 185}. The heinousness of the crime is a relevant factor in the choice of the sentence. The circumstances of the crime, specially social pressures which induce the crime which we may epitomize as a 'just sentence in an unjust society' are another consideration. {See Shiv Mohan Singh v State (Delhi Admn) AIR 1977 SC 949; 1977 Cr LJ 767}.
5. Keeping in view the over all facts and circumstances of the case including the fact that no deadly weapon is used in commission of offence and convict/accused Munna Singh who is in judicial custody for more than three years and five months, he is sentenced to undergo Rigorous Imprisonment for three years and six months and also directed to pay fine of Rs. 1000/ under Section 304(II) IPC. In default of payment of fine convict/accused Munna Singh shall undergo Simple Imprisonment for one month. The period of detention already undergone by convict during the period of investigation and trial of this case shall be set off against the term of imprisonment imposed against the convict by this order as provided u/s 428 Cr.P.C . Copy of the said judgement and order on sentence be supplied to convict/accused free of State Vs. Munna 55 cost. The judgment and order on sentence be sent to server (www.delhidistrictcourts.nic.in).
The copy of judgment and order on sentence be supplied to the accused free of cost. File be consigned to record room. Announced in the open court on this 29th day of January 2011 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Munna