Delhi District Court
State vs . Kuldeep Singh & Anr. on 22 July, 2011
State vs. Kuldeep Singh & Anr.
IN THE COURT OF SHRI AJAY KUMAR KUHAR
ADDL. SESSIONS JUDGE02:SOUTH EAST
SAKET COURT: NEW DELHI
IN RE: Sessions Case No. 71/08
FIR No. 431/08
PS Sangam Vihar
U/s 302/34 IPC
State Vs. 1. Kuldeep Singh, S/o Sh. Subhash, R/o
Village Faranji, PS Kisni, District
Etawah, U.P.
2. Vishal Pal, S/o Sh. Prem Chand, R/o
Village Rasulpur, PS Sohri, District
Kannauj, M.P.
Date of institution : 15.12.2008
Date when arguments were heard : 06.07.2011
Date of Judgment : 22.07.2011
JUDGMENT
The prosecution case is as under:
1. The deceased Vishram Meena was a driver on goods train at Tughlakabad Station. On the intervening night of 12/13.08.2008, when he SC No. 71/08 1/35 State vs. Kuldeep Singh & Anr.
came to the station at around 9.30 pm, he was robbed by some persons who also caused injuries to him. He somehow reached a cabin at the Railway Station, Tughlakabad, where Cabin Man Hari Singh Meena and Jagdish Chand were present. The deceased was bleeding profusely and he immediately fell on the floor of the cabin. Dr. K. Sridhar, Senior DMO, Railway Hospital, Tughlakabad Railway Station was called and the injured Vishram Meena was rushed to Batra Hospital, where he was declared as "brought dead". The information of this incident was initially received at PS Okhla at 12.30 am, and ASI Ashok Giri immediately reached the spot, but as he found that the place of occurrence was falling within the jurisdiction of PS Sangam Vihar, he sent the information to the proper PS. This information was then noted at PP Prahlad Pur, PS Sangam Vihar vide DD No. 33 at 2.40 am, following which ASI Satbir Kaushik reached Batra Hospital where he collected the MLC of the injured Vishram Meena who was declared as brought dead. The SHO, PS Sangam Vihar Inspector Satya Pal Singh also reached there and sent the rukka for registration of FIR. Inspector Satya Pal Singh also visited the place of occurrence near R Block, Pul Prahlad Pur near railway line, opposite kabristan (cremation ground). After the case was registered, the crime team was called to the spot. The Investigating Officer Inspector Satya Pal Singh lifted blood stained earth from three places and kept them in a separate plastic jar and sealed it with the seal of S.P. He also lifted the earth control from the place of the incident and prepared a site plan. In the hospital, he conducted the SC No. 71/08 2/35 State vs. Kuldeep Singh & Anr.
inquest proceedings and sent the body for postmortem. After the postmortem, the dead body was released to Sukhram and Chotey Lal, the relatives of the deceased. The Investigating Officer also collected the clothes and the blood in gauze, of the deceased.
2. There was no clue about the offenders till 15.08.2008 when the Investigating Officer received an information from Police Post Madipur, PS Punjabi Bagh regarding the apprehension of the accused Vishal Pal and one Sunil Kumar (juvenile sent for trial to JJB), U/s 41.1 (a) Cr.P.C. The accused Vishal Pal alongwith Sunil Kumar had been apprehended the previous day, on 14.08.2008, by SI Prahlad Singh, Incharge Police Post Madipur, PS Punjabi Bagh, New Delhi from near the Ordinance Depot, Bus Stop, Rohtak Road at about 4.00 pm upon receiving information that an accused in a murder case committed near the railway track in the area of BadarpurSangam Vihar on 12.08.2008, would be coming to Rohtak Road near Ordinance Depot. On the basis of this information, he formed a raiding party and apprehended the accused at 4.00 pm on the identification by a secret informer. The accused Vishal Pal was found in possession of two mobile phones and Sunil Kumar (juvenile) was found in possession of one black colour raxin bag which was found containing one chhuri (knife), one mobile phone and one bank passbook. These articles were seized by SI Prahlad Singh alongwith the shirt worn by the accused Vishal Pal, which had blood stains on it. These articles except the chhuri were the belongings of the deceased Vishram Meena. The chhuri (knife) as per prosecution case SC No. 71/08 3/35 State vs. Kuldeep Singh & Anr.
is the weapon of offence. After their apprehension, an intimation was sent to Inspector Satya Pal Singh, the IO of the present case, who then arrested the accused Vishal Pal on 18.08.2008 and recorded his disclosure statement thereafter. The articles recovered from the accused Vishal Pal and Sunil Kumar (juvenile) were seized by the IO. Pursuant to the disclosure statement of the accused Vishal Pal, accused Kuldeep Singh was arrested on 15.09.2008. Accused Kuldeep Singh also made a disclosure statement and the Investigating Officer obtained his police remand to effect recovery at his instance. It was accused Kuldeep Singh who during his police custody remand, led the police party to Tughlakabad Fort from where he got recovered a half burnt booklet of railway guidelines, and a passbook in the name of Smt. Bhonti Devi. As per the prosecution case, this passbook in the name of Bhonti Devi and the booklet of railway guidelines were also part of the contents of the bag, which belonged to the deceased Vishram Meena and which he was carrying. The Investigating Officer after seizing the chhuri recovered from Sunil Kumar (juvenile) sent the same for subsequent opinion by the doctor who had conducted the postmortem of the deceased and sent the exhibits of the case at the FSL and collected the reports.
3. After completion of the investigation, the charge sheet was filed in the court and the case was committed to the sessions court for trial. On the basis of the report U/s 173 Cr.P.C and the supporting documents and the statement of witnesses U/s 161 Cr.P.C, prima facie the offence U/s 302 SC No. 71/08 4/35 State vs. Kuldeep Singh & Anr.
read with Section 34 IPC was made out against the accused Vishal Pal and Kuldeep Singh and they were charged accordingly on 21.09.2009. They pleaded not guilty to the charge and claimed trial.
4. The prosecution then led the evidence to prove its case and examined the following witnesses: 4.1 PW1 is Amar Singh Meena. He has deposed that on 12.08.2008, he was on duty at Tughlakabad Railway Station. The deceased Vishram Meena came by the goods train at about 9.15 pm and he was having a black colour raxin bag with him. He further deposed that the deceased was carrying, his ICard , passbook of bank and post office, a brown colour raxin purse having some cash, one HMT wrist watch and a Nokia mobile phone having a Sim Card provided by the Railways Department. He further deposed that at around 10.30 pm, he came to know that someone had attacked Vishram Meena with a knife and he was lying near the railway cabin. He went there, by that time, Dr. K. Sridhar had already reached the spot. He further deposed that the articles belonging to Vishram Meena were missing. Deceased was taken to Batra Hospital where he was declared "brought dead". He further deposed that on 21.08.2008, he alongwith Smt. Bhonti Devi, wife of the deceased had gone to the police station where the police officials had shown to him one bag belonging to the deceased Vishram Meena. This bag was identified by Smt. Bhomti Devi as belonging to the deceased Vishram Meena. This witness had identified the said black colour raxin bag (Ex. P1), one mobile SC No. 71/08 5/35 State vs. Kuldeep Singh & Anr.
phone of Nokia unsealed (Ex. P2) and one PassBook belonging to Vishram Meena (Ex. P3) which was shown to him in the police station. 4.2 PW2 is Nabor Beck, Public Relation Inspector, Head Post Office, Kalkaji, New Delhi. He had brought the record pertaining to RD Account No. 68318 belonging to Smt. Bhomti Devi (wife of the deceased Vishram Meena). He deposed that this account was closed on 12.12.2008 and produced the relevant record as Ex. PW2/A, 2/B and 2/C. 4.3 PW3 is Bhonti Devi, wife of the deceased Vishram Meena. She deposed that at about 10.30 pm, she had received a telephonic call and was informed that her husband was lying injured and has sustained knife injury and has been taken to hospital. She deposed that she went to the hospital where she came to know that her husband has expired. She further deposed that all the belongings of her husband were found missing. She also deposed that her husband was having Bank Passbook, Post Office PassBook, Identity Card, Railway Pass, Wrist Watch, Spectacles, a Diary and other documents with him. He was also having Rs. 4,0005000/ in cash with him and a Government mobile phone. She deposed that all the articles were found missing after the incident. She further deposed that she had identified a black colour bag in the police station as the same which belonged to her husband and she also identified the mobile phone and bank passbook which her husband was carrying at the time of incident. The black colour hand bag (Ex. P1), mobile phone make Nokia (Ex. P2) and one passbook of the Bank (Ex. P3) were shown to the witness in the court SC No. 71/08 6/35 State vs. Kuldeep Singh & Anr.
which she identified as the belongings of her husband. 4.4 PW4 is Sukh Ram.
4.5 PW5 is Chotey Lal. Both of them had identified the dead body of deceased Vishram Meena vide their statement Ex. PW4/A and Ex. PW5/A respectively.
4.6 PW6 is Hari Singh Meena.
4.7 PW7 is Jagdish Chand. They were both working as Cabin Man at Tughlakabad Railway Station. They both have deposed that on 12.08.2008 at around 10.00/10.15 pm, Vishram Meena had come into the cabin and fell down. He was soaked in the blood and was taken to Batra Hospital.
4.8 PW8 is Ram Prasad, who has also deposed about having seen the deceased lying on the gate of the cabin with the blood oozing out from his stomach. He had also deposed that the blood of the injured was also found on the stairs of the railway cabin.
4.9 PW9 is Rajinder Bhardwaj. He deposed that he was a Crue Controller, Northern Railway, Tughlakabad, New Delhi and one mobile phone No. 9717632535 was alloted to Vishram Meena, Driver/ Loco Pilot, Goods, Headquarter, Tughlakabad, New Delhi.
4.10 PW10 is Sh. A.K. Sinha, Chief Manager, Central Bank of India, who deposed that as per their record, the Saving Account No. 41985 belongs to Vishram Meena and a PassBook was also issued by the Bank SC No. 71/08 7/35 State vs. Kuldeep Singh & Anr.
on this account.
4.11 PW11 is Dr. K. Sridhar, Senior DMO, Railway, Tughlakabad Railway Station. He deposed that on 12.08.2008, he received the message at 9.15 pm from cabin at Tughlakabad Railway Station regarding the stabbing of a driver. He deposed that the injured had a stab injury on the abdomen and he was immediately taken to Batra Hospital. 4.12 PW12 is Dr. Payal Saxena, CMO, Batra Hospital, who had examined deceased Vishram Meena when he was brought to the hospital. The witness deposed that after the examination of the dead body, the injuries were opined as dangerous and the MLC of the deceased was prepared vide Ex. PW2/A. The witness deposed that the patient was declared brought dead at 11.10 pm after medical examination. 4.13 PW13 is Dr. Manish, Department of Forensic Medicine, Safdarjung Hospital who conducted the postmortem on 13.08.2008. He deposed that he had found two antemortem injuries. An incise wound of 2 cm x 0.5 cm and two stab wound measuring 2.5 cm x 1 cm. He gave the opinion regarding the cause of death as shock and hemorrhage consequent upon stab injury caused by sharp double edged weapon. He proved his report as Ex. PW13/A. He further deposed that on 29.09.2008, he had examined the weapon of offence and the injuries and had given his opinion that the injury No.1 could be produced by the weapon examined and injury No.2 is less or unlikely to be produced by alleged weapon examined. He proved his SC No. 71/08 8/35 State vs. Kuldeep Singh & Anr.
subsequent opinion as Ex. PW13/B and the rough sketch of the weapon prepared by him vide Ex. PW13/C. 4.14 PW14 is ASI Satbir Kaushik. He deposed that on 12.08.2008, he was posted at PP Prahlad Pur, PS Sangam Vihar and he had received the information regarding admission of Vishram Meena in the Batra Hospital in injured condition. He visited Batra Hospital and found Vishram Meena admitted there. He deposed that on 13.08.2008, he had visited the place of occurrence from where three blood stained earth samples were lifted by the Investigating Officer and put into plastic jar and sealed with the seal of S.P vide memo Ex. PW14/A to Ex. PW14/C. The earth control was also lifted by the Investigating Officer and put in a plastic jar vide memo Ex. PW14/D. He further deposed that thereafter he went to Batra Hospital with the IO where the Investigating Officer seized two sealed parcels given by the doctor. Thereafter, they went to AIIMS Hospital for postmortem of the dead body of the deceased and after the postmortem, one sealed envelop containing blood in gauze, given by the doctor, was seized by the IO vide memo Ex. PW14/F. After the postmortem, the dead body was handed over to the relatives of the deceased.
4.15 PW15 is SI Ashok Giri. He deposed that on the night of 12/13.08.2008, he was posted at PS Okhla when Duty Officer had informed him about the incident of knife stabbing at the railway track, Tughlakabad. He reached the spot and found some blood stains. He deposed that the SC No. 71/08 9/35 State vs. Kuldeep Singh & Anr.
place was falling within the jurisdiction of PS Sangam Vihar, therefore, he conveyed the information to the Duty Officer, PS Okhla to inform the Police Post, Pul Prahlad Pur, PS Sangam Vihar. Thereafter, the SHO PS Sangam Vihar came there and took up the investigation. 4.16 PW16 is HC Manohar Lal, who deposed that on the intervening night of 12/13.08.2008, he was working as Duty Officer from 1.00 am (night) to 9.00 am. He deposed that at 5.45 am, he received the rukka sent by Inspector Satya Pal Singh on the basis of which he registered the FIR Ex. PW16/A. He also produced the copy of the DD entry No. 75 A and 76A recorded at 5.45 am and 6.15 am vide Ex. PW16/C and Ex. PW16/D respectively with regard to the registration of the FIR. 4.17 PW17 is SI Prahlad Singh. The accused Vishal Pal and Sunil Kumar (juvenile) were apprehended by this witness. He has deposed that on 14.08.2008, he was posted as Incharge Police Post, Madipur, PS Punjabi Bagh and on the said date, he received a secret information about an accused involved in murder committed near the railway track in the area of Badarpur and Sangam Vihar on 12.08.2008. He formed a raiding party and at about 4.00 pm, the accused Vishal Pal and Sunil Kumar (juvenile) were apprehended by him. From the possession of Sunil Kumar (juvenile), one black colour raxin bag was recovered which was found containing one chhuri (knife), one mobile phone and one passbook. He deposed that two mobile phones were recovered from the possession of the accused Vishal Pal. He further deposed that he prepared the sketch of the knife vide Ex. SC No. 71/08 10/35
State vs. Kuldeep Singh & Anr.
PW17/A and seized the same vide memo Ex. PW17/B. He also seized the bag, mobile phone and passbook recovered from the possession of Sunil Kumar (juvenile) vide memo Ex. PW17/C. He deposed that he had seized two mobile phones from the possession of the accused Vishal Pal which he seized vide memo Ex. PW17/I and he also seized the shirt of the accused Vishal Pal which was having blood stains vide memo Ex. PW17/J. He further deposed that he had produced the accused persons in the court with muffled face. He deposed that he arrested both of them in the kalandra U/s 41.1 (a)/102 Cr.P.C and arrested the accused Vishal Pal vide memo Ex. PW17/D and recorded his disclosure statement Ex. PW17/F. He further deposed that he gave the information to the concerned police station regarding the arrest of the accused.
4.18 PW18 is Ct. Anil Kumar, who was posted at PP Prahlad Pur, PS Sangam Vihar on 17.10.2008, who had taken the exhibits of the case from the MHC (M) vide RC No. 263/21/08 and deposited the same at the FSL, Rohini.
4.19 PW19 is HC Mohan Lal, who had joined the investigation when the accused Kuldeep Singh was arrested in this case vide Ex. PW19/A. He deposed that he was with the Investigating Officer when the accused Kuldeep Singh pointed out the place of occurrence vide pointing out memo Ex. PW19/B. He further deposed that the accused Kuldeep Singh had got recovered a paper parcel from near the wall of Tughlakabad Fort which was found containing one half burnt purse and one half burn I SC No. 71/08 11/35 State vs. Kuldeep Singh & Anr.
Card with some other articles. In his cross examination by the Ld. Counsel for accused Kuldeep Singh, however, this witness submitted that he had wrongly stated about the recovery of half burnt ICard and purse and clarified that one half burnt passbook and one half burnt booklet were found in the paper parcel.
4.20 PW20 is Ct. Vijay Kumar, who was posted at PP Pul Prahlad Pur, PS Sangam Vihar on 12.08.2008 when at 2.40 am (night), he had received the information on telephone regarding the stabbing of a goods train driver at Tughlakabad Railway Station who was removed to Batra Hospital and was declared dead. He made entry in DD Register vide No. 33 (Ex. PW20/A) and marked the same to ASI Satbir (PW14). 4.21 PW21 is HC Satbir, PP Madhi Pur, PS Punjabi Bagh who had joined the police party formed by SI Prahlad Singh on receipt of the information regarding the accused. He has deposed on the same line as that of PW 17 SI Prahlad Singh.
4.22 PW22 is Ct. Bharat Lal, who had delivered the special report in this case to the Area Magistrate.
4.23 PW23 is Ct. Naveen, who alongwith Inspector Satya Pal Singh had reached the spot and was given the rukka which he had taken to the police station for registration of the case.
4.24 PW24 is Ct. Girdhar, who had visited the scene of occurrence alongwith the mobile crime team and had taken the photographs Ex. PW24/A1 to A9. However, the negatives of these photographs have not SC No. 71/08 12/35 State vs. Kuldeep Singh & Anr.
been placed on file.
4.25 PW25 is ASI Mahesh Kumar, who had prepared the scaled site plan Ex. PW25/A. 4.26 PW26 is HC Ranjit Kumar, who was working as the MHC (M) at PS Punjabi Bagh. He deposed that on 14.08.2008, SI Prahlad Singh had deposited pulandas containing a bag, passbook, chhuri (knife), two mobile phones and shirt. He further deposed that he had sent all the case property to PS Sangam Vihar on 25.08.2008 and made the relevant entry in this regard vide Ex. PW26A in the Register No.19.
4.27 PW27 is Inspector Satya Pal Singh. He is the Investigating Officer of the case. He has proved his endorsement Ex. PW17/A on DD No. 33 (Ex. PW20/A). He has proved his site plan Ex. PW27/B and the inquest proceedings conducted by him vide Ex. PW27/C. He deposed that on 13.08.2008, he had moved an application for conducting the postmortem on the dead body of Vishram Meena vide Ex. PW27/D. He further deposed that on 18.08.2008, he had received an information from PP Madipur, PS Punjabi Bagh regarding the arrest of the accused Vishal Pal and Sunil Kumar (juvenile) U/s 41.1 (a) Cr.P.C. Thereafter on 18.08.2008, he arrested the accused Vishal Pal in the present case vide arrest memo Ex. PW27/F and personal search memo Ex. PW27/E. He further deposed that he collected the documents from PS Punjabi Bagh i.e the disclosure statement of accused Vishal Pal Ex. PW17/F, kalandra Ex. PW17/H, seizure memo of the mobile phone Ex. PW17/I, seizure memo of the shirt SC No. 71/08 13/35 State vs. Kuldeep Singh & Anr.
of accused Vishal Pal Ex. PW17/J, seizure memo of the chhuri (knife) Ex. PW17/B, seizure memo of bag, mobile and passbook Ex. PW17/C and sketch of chhuri (knife) Ex. PW17/A. He further deposed that he arrested the accused Kuldeep Singh on 15.09.2008 as per memo Ex. PW19/A when he was produced at Patiala House Courts and he recorded his disclosure statement Ex. PW19/C and pursuant to the said disclosure statement, the accused Kuldeep Singh took the police party and pointed out the place of occurrence vide memo Ex. PW19/D and he further led the police party to Tughlakabad Fort, New Delhi from where he got recovered one half burnt booklet of railway guidelines and one passbook in the name of Smt. Bhonti Devi which were wrapped in a piece of newspaper and which were seized vide memo Ex. PW19/E. He further deposed that he had obtained the subsequent opinion of the doctor regarding the weapon of offence vide Ex. PW13/B and collected the FSL Report Ex. PW27/F, 27/G and 27/H.
5. All the incriminating evidence in the statement of witnesses were explained to the accused persons when they were examined U/s 313 Cr.P.C. They denied the evidence against them for being false. However, they did not prefer to lead any evidence in defence either.
6. I have heard the arguments from the Ld. Addl. PP for state, from the Ld. Counsel Sh. Ramesh Rawat (Amicus Curiae) for accused Kuldeep Singh and from the Ld. Counsel Sh. N.L. Suman for accused Vishal Pal.
7. The Ld. Addl. PP for state has argued that it is a case of robbery cum murder in which the accused persons had robbed the deceased SC No. 71/08 14/35 State vs. Kuldeep Singh & Anr.
Vishram Meena of his mobile phone and cash which he was carrying and in the process, he was stabbed in the abdomen which caused his death. The Ld. Addl. PP has argued that although there is no direct evidence against the accused persons in this case but the recovery of the articles belonging to the deceased, weapon of offence and the blood stained shirt of the accused Vishal Pal, connect the accused persons with the commission of the offence of robbery cum murder. The Ld. Addl. PP has relied on the statement of PW17 SI Prahlad Singh and SI Satbir who had deposed about the recovery from the possession of the accused Vishal Pal and Sunil Kumar (juvenile) and he also relied upon the statement of PW27 Inspector Satya Pal Singh who had effected the recovery of one burnt booklet of railway guidelines and passbook which belong to the deceased. He submitted that the accused Kuldeep Singh had led the police party to the recovery of these articles from Tughlakabad Fort where he had sealed these articles in the hollow of a wall. He argued that the accused have not offered any explanation of how they had come into possession of the articles which belonged to the deceased. He argued that the mobile phone make Nokia recovered from the accused Vishal Pal has been identified by the witnesses PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi. Regarding recovery of the half burnt passbook of Smt. Bhonti Devi, he argued that this passbook pertains to account No. 68318, Post Office, Kalkaji, New Delhi and the statement of PW2 Nabor Beck shows that the account No. 68318 belongs to Smt. Bhonti Devi, thus, providing a nexus between the SC No. 71/08 15/35 State vs. Kuldeep Singh & Anr.
recovered burnt passbook with the wife of the deceased. Therefore, he argued that the recovery of these articles from the possession or at the instance of the accused persons and the failure of the accused to give any explanation with regard to the possession of these articles clearly points out towards the guilt of the accused persons and the prosecution case stands proved that they are the perpetrators of the crime.
8. The Ld. Counsel Sh. Ramesh Rawat (Amicus Curiae) for accused Kuldeep Singh has argued that the prosecution has not been able to prove the case against the accused Kuldeep Singh. He argued that the recovery which has been shown from the possession of the accused does not in any manner connect the accused persons with the offence. He submitted that the recovery of the passbook etc. has been planted upon the accused just to work out the case. He further submitted that it is very strange to note that the passbook etc. has been shown to be recovered from the accused while the watch of the deceased has not been recovered from any of the accused. It is highly unlikely that the accused would have thrown or disposed off the watch and kept with himself a paper which was useless for him and had no monitory value. As regards the recovery of the black colour raxin bag and the mobile phone from the accused persons, he submitted that the prosecution case suffers from a contradiction. The PW1 Amar Singh, who alongwith the wife of the deceased (PW3) Smt. Bhonti Devi identified the black colour raxin bag of the deceased and the mobile phone of the deceased in the police station has deposed that on 21.08.2008, SC No. 71/08 16/35 State vs. Kuldeep Singh & Anr.
he had visited the PS with wife of deceased, where these articles were identified while these articles were brought to the police station Sangam Vihar only on 25.08.2008 as deposed by PW26 HC Ranjit Kumar. He further submitted that the knife allegedly recovered from the possession of the accused cannot be connected with the offence in view of the postmortem report and the subsequent opinion given by the doctor as the injury, according to the postmortem report, on the body of the deceased, has been caused by a double edged weapon while the knife which has been recovered is only a single edged weapon.
9. Ld. Counsel Sh. N.L. Suman for accused Vishal Pal has argued that as per the prosecution case, he was found in possession of two mobile phones; one make of Nokia and other make of Samsung. He submitted that as per the seizure memo of the mobile phone recovered from the accused Vishal Pal Ex. PW17/I, the mobile phone make Nokia was of grey, black and silver colour having IMEI No. 354166025361107 and the another phone recovered from him make Samsung was of black colour which was in working condition and was having IMEI No. 357507013325439. He submitted that there is no evidence on the record to show that the mobile phone make Nokia allegedly recovered from the possession of the accused Vishal Pal was the same which belonged to the deceased Vishram Meena. The attention is also drawn to the statement of PW17 SI Prahlad Singh who in his cross examination has admitted that the mobile phone make Nokia which has been produced in the court was having IMEI No. SC No. 71/08 17/35 State vs. Kuldeep Singh & Anr.
359389009222815. This shows that the mobile phone recovered from the possession of the accused Vishal Pal is not the same which belonged to deceased Vishram Meena. He further submitted that the blood stained shirt which the PW17 SI Prahlad Singh recovered from the accused Vishal Pal was having some blood stains. He submitted that there is nothing to connect those blood stains with the deceased. There is no opinion to the effect that the blood stain, if any, on the shirt of the accused Vishal Pal which was seized on 14.08.2008 were of the same group as that of the deceased Vishram Meena. The FSL Report in this regard is Ex. PW27/H which although shows that the blood group on the shirt (Ex.9) was 'A' Group but that by itself is not sufficient to connect the accused Vishal Pal with the commission of the offence. He further submits that the recovery of the shirt from the accused Vishal Pal is found very unconvincing. He concludes his arguments by submitting that the evidence on the record is not sufficient to connect the accused Vishal Pal with the offence.
10. The prosecution case is based on circumstantial evidence. There is no direct evidence connecting the accused with the commission of the offence. The prosecution has relied on the recovery of the articles belonging to the deceased and his wife from the possession of the accused as well as the recovery of the weapon of offence. 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 SC No. 71/08 18/35 State vs. Kuldeep Singh & Anr.
accused and bring the offences home beyond any reasonable doubt.
In the case of C. Chenga Reddy and Ors. v. State of A.P., 1996(3) RCR(Crl.) 793 : (1996)10 SCC 193, 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 consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
In Padala Veera Reddy v. State of A.P. and Ors., 1990(2) RCR(Crl.) 26 :
(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 SC No. 71/08 19/35 State vs. Kuldeep Singh & Anr.
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.
In State of U.P. v. Ashok Kumar Srivastava, 1992(3) RCR(Crl.) 63 :
(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 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. In Vithal Eknath Adlinge vs State of Maharashtra 2009(3) R.C.R. (Criminal) 161 the Supreme court while dealing with circumstantial evidence referred to the comment of Sir Alfred Wills in his book on this issue,which I reproduce below:
"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 SC No. 71/08 20/35 State vs. Kuldeep Singh & Anr.
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 as of right to be acquitted".
11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by the this Court as far back as in 1952.
12. 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 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 SC No. 71/08 21/35 State vs. Kuldeep Singh & Anr.
be such as to show that within all human probability the act must have been done by the accused."
13. 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 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 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 SC No. 71/08 22/35 State vs. Kuldeep Singh & Anr.
accused and must show that in all human probability the act must have been done by the accused.
14. The prosecution has relied upon the following circumstantial evidence to prove the nexus of the accused with the commission of the offences of robbery and murder of the deceased Vishram Meena;
(a) the recovery of two mobile phones make Nokia from the possession of the accused Vishal Pal.
(b) the recovery of the black colour raxin bag.
(c) one passbook of the Central Bank of India of the account of deceased Vishram Meena.
(d) one chhuri (knife) from the possession of Sunil Kumar (juvenile facing the trial before the JJB).
(e) the disclosure statement of the accused Kuldeep Singh leading to the recovery of a newspaper wrapper containing the passbook of Post Office of Smt. Bhonti Devi, wife of deceased Vishram Meena and a railway guide in half burnt condition.
15. The accused Vishal Pal had been apprehended on 14.08.2008 at around 4.00 pm. As per the case of the prosecution, he was wearing a shirt which was having some blood stains on it. This shirt was seized vide memo Ex. PW17/I and was sent to the FSL by the IO. The FSL Report is Ex. PW27/H (in this report the shirt of the accused has been referred as Ex. 9 which was contained in parcel No.9 and sealed with the seal of SC No. 71/08 23/35 State vs. Kuldeep Singh & Anr.
PS). This shirt was having blood stains which was found to be of human origin and pertaining to 'A' Blood Group. The FSL Report Ex. PW27/H and Ex. PW27/G show that the blood of the deceased was taken in a gauze and it was also sent to the FSL. The report shows that the blood group found on the blood stained gauze cloth (Ex.5) was also of human origin and 'A' Blood Group. The prosecution has relied heavily on this fact about the blood stained shirt. As per PW17 SI Prahlad Singh, he had seized the shirt of the accused Vishal Pal on the spot but he was not examined whether accused Vishal Pal was given anything else in return to wear. The prosecution has missed a very important piece of evidence by not proving the blood group of the accused Vishal Pal. How can one rule out the possibility that the blood group of the accused Vishal Pal could not be of 'A' Group. The prosecution has also to establish what was the width and the size of the blood stains on the shirt. Presence of a drop of blood here and there can happen in ordinary circumstance with anybody, hence it is difficult to rule out that the said blood stains on the shirt of the accused Vishal Pal were not of his own blood. Therefore, to consider the recovery of a blood stained shirt from accused Vishal Pal which, he was wearing at the time of commission of the offence, as an incriminating circumstance against him, it was incumbent upon the prosecution to prove that the blood group of accused Vishal Pal was not of A' Group. Unfortunately, this evidence has not come on the record.
16. The another circumstance on which the prosecution has relied SC No. 71/08 24/35 State vs. Kuldeep Singh & Anr.
upon is the recovery of a mobile phone from the possession of the accused Vishal Pal. The accused Vishal Pal has been found in possession of two mobile phones; one make Nokia of greyblack colour with a silver front having IMEI No. 354166025361107 which was not having any Sim Card. Second was make Samsung (black colour), Sim Card No. 9711054722 and IMEI No. 357507013325439. Now this is the admitted case of the prosecution that only these two mobile phones were recovered from the accused Vishal Pal. The Ld. Addl. Public Prosecutor had argued that the mobile phone when produced in the court was duly identified by PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi as that of the deceased Vishram Meena. The statement of PW1 would show that he had identified one mobile phone of Nokia which was produced in the court in unsealed condition as the one which belonged to deceased Vishram Meena. At the time of his examination, only one mobile phone was produced by the prosecution which was make Nokia. PW3 Smt. Bhonti Devi was examined and she was also shown one mobile phone make Nokia which was also in unsealed condition (Ex. P2) which she also identified as that of her husband deceased Vishram Meena. In their statement, they had not described what was the colour combination of the mobile phone of deceased Vishram Meena. During the examination of PW17 SI Prahlad Singh, who had effected the recovery from accused Vishal Pal, the prosecution produced three mobile phones; (i) make Nokia, (ii) make of Tata Indicom which was recovered from the possession of Sunil Kumar SC No. 71/08 25/35 State vs. Kuldeep Singh & Anr.
(juvenile facing the trial before the JJB) and (iii) make of Nokia having grey and silver body (Ex. P4). The another mobile phone allegedly recovered from the accused Vishal Pal as per seizure memo Ex. PW17/I was not produced in the court when PW17 was examined. So, the prosecution had brought in the court two mobile phones of make Nokia. The one which is recovered from the accused Vishal Pal as per seizure memo Ex. PW17/I was having grey and silver body and this has been produced in the court as Ex. P4. One of the mobile phone of make Nokia was having IMEI No. 359389009222815. As per seizure memo Ex. PW17/I, the IMEI number of the mobile phone make Nokia recovered from the accused Vishal Pal is 359389009222815. To connect the accused Vishal Pal with the offence on the basis of the recovery of the mobile phone, the prosecution had to prove that the IMEI number of the mobile phone of the deceased Vishram Meena was the same which was recovered from the accused Vishal Pal or Sunil Kumar (juvenile facing the trial before the JJB). The prosecution has not led any evidence as to what was the IMEI number of the mobile phone of deceased Vishram Meena. The mobile phone which is produced in the court as Ex. P4 having greyblack and silver colour is the one which is recovered from the accused Vishal Pal but IMEI number of this phone does not tally with the IMEI number of the mobile phone of make Nokia which was activated in the court. Therefore, the prosecution was unable to establish the nexus between the mobile phone recovered from the possession of the accused Vishal Pal with that of SC No. 71/08 26/35 State vs. Kuldeep Singh & Anr.
the mobile phone of deceased Vishram Meena.
17. The prosecution had also relied on the evidence of recovery of a knife from the possession of Sunil Kumar (juvenile). Now the recovery of this knife from Sunil Kumar (juvenile) is being used by the prosecution to connect the accused Vishal Pal and Kuldeep Singh with the offence, on the basis of their disclosure statement. The disclosure statement of the accused Kuldeep Singh and Vishal Pal Ex. PW19/C and Ex. PW17/F respectively may be considered in this regard to the limited extent of the recovery of knife from Sunil Kumar (juvenile). Admittedly, these disclosure statements have not led to the recovery of the knife from Sunil Kumar (juvenile). Therefore, these statements are not admissible in evidence so far as the use of knife is concerned. The prosecution case is that at the time of commission of the offence, the accused Kuldeep Singh had used the knife but somehow it has not been recovered from his possession and it is very strange that the accused who has not used the weapon is found carrying the same in his bag with all the blood stains. The probability of the prosecution case that Sunil Kumar (juvenile) was carrying the weapon of offence in his black colour bag is very bleak. Not only this, the nexus of this knife with the injuries found on the person of deceased Vishram Meena cannot be established.
18. The Ld. Addl. PP had argued that as per the FSL Report, the cut mark found on the shirt and the baniyan (vest) of the deceased Vishram Meena could have been caused by this knife. He refers to the FSL Report SC No. 71/08 27/35 State vs. Kuldeep Singh & Anr.
Ex. PW27/F. In this report, the shirt and the baniyan have been referred as Ex. 7a and 7b having cut mark Q1 and Q2 respectively. The knife (Ex.
10) having dark brown stains with one edge sharp was examined and the test cut marks T1 and T2 were made on the shirt Ex.7a with the help of the knife Ex. 10. T1 and T2 were compared with the cut mark Q1 and Q2 on the shirt and the baniyan respectively and it was opined that the cut mark Q1 and Q2 could have been caused by the knife Ex. 10. This report, thus, only shows a possibility that the cut mark Q1 and Q2 which have been found on the shirt and the baniyan of the deceased could have been caused by the knife (Ex. 10) which was recovered from the possession of Sunil Kumar. The basic principle of the criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and not on the basis of the principle of preponderance of probability. The FSL Report Ex. PW27/F does not establish beyond reasonable doubt that the cut mark Q1 and Q2 were definitely caused by the knife Ex. 10.
19. The knife recovered from Sunil Kumar (juvenile) as per prosecution case was sent for examination and the subsequent opinion of Dr. Manish (PW13), who had conducted the postmortem of the deceased Vishram Meena. In his postmortem report Ex. PW13/A, he had given the opinion regarding the cause of death as "shock and hemorrhage consequent upon stab injury (injury No.2) caused by sharp double edged weapon which is sufficient to cause death in ordinary course of SC No. 71/08 28/35 State vs. Kuldeep Singh & Anr.
nature". This postmortem report shows that there were two injuries on the person of the deceased; (i) an incise wound on the mouth and (ii) a stab wound in the abdominal cavity. The first wound was only muscle deep but the second injury which was in the abdomen was cavity deep. The cause of death is the second injury which was in the abdomen and which was quite deep. The PW13 Dr. Manish had examined the weapon of offence and the injuries mentioned in the postmortem report and opined that injury No.1 in the postmortem report could be produced by the weapon examined and injury No.2 is less or unlikely to be produced by the weapon examined. In the cross examination, he had admitted that the weapon of offence which he had examined is single edged weapon. Although PW13 has denied the suggestion that the injuries mentioned in the postmortem report were not possible with the single edged weapon but at the same time, he has also deposed that the injury No.2 was less or unlikely to be produced by the weapon examined. Thus, the certainty that the injuries on the person of the deceased as mentioned in the postmortem report which were caused by the weapon of offence allegedly recovered from Sunil Kumar (juvenile), is not there.
20. The prosecution relied upon recovery of a black colour raxin bag and one passbook of the Central Bank of India of the account of deceased Vishram Meena from Sunil Kumar (juvenile). The case of the prosecution is that the deceased Vishram Meena was carrying one black colour raxin bag containing other documents like passbook of the Central SC No. 71/08 29/35 State vs. Kuldeep Singh & Anr.
Bank of India and the passbook of the post office of the account of his wife Smt. Bhonti Devi (PW3). PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi are the witnesses who were examined to prove that the black colour raxin bag recovered from Sunil Kumar (juvenile) containing one passbook of Central Bank of India were that of deceased Vishram Meena. It is the admitted case of the prosecution that none of these articles were seized when they were allegedly recovered. So far as the black colour raxin bag is concerned, similar bags are available in the market, but of course, the passbook of a bank if the account number is mentioned thereon, can clearly establish the identity of the person to whom it belongs. Now this black colour raxin bag alongwith its contents was seized on 14.08.2008 by PW17 SI Prahlad Singh. PW26 HC Ranjit Kumar deposed that on 14.08.2008, he was working as MHC (M) in the Police Station Punjabi Bagh when SI Prahlad Singh, Incharge Police Post Madipur had visited a bag containing mobile phone, passbook and some other documents. The statement of PW17 SI Prahlad Singh and PW26 HC Ranjit Kumar establish the fact that on 14.08.2008, one bag containing mobile phone, passbook and other documents was deposited in the police station Punjabi Bagh. The relevant entry was also made regarding the deposit of these articles in the Register No.19 vide Ex. PW26/A. PW1 Amar Singh Meena is the witness who alongwith Smt. Bhonti Devi (PW3), wife of the deceased Vishram Meena had gone to the police station when they were shown the black colour raxin bag and the mobile phone SC No. 71/08 30/35 State vs. Kuldeep Singh & Anr.
which they identified as that of the deceased. PW1 deposed that he alongwith Smt. Bhonti Devi (PW3) had visited the police station on 21.08.2008. He had mentioned this date of his visit to the police station specifically in his examinationinchief and it was not disputed by the prosecution. So, it is the positive case of the prosecution that PW1 Amar Singh Meena visited the police station on 21.08.2008 when Smt. Bhonti Devi accompanied him and they identified the black colour bag and the mobile phone of the deceased Vishram Meena. PW26 HC Ranjit Kumar with whom these articles were deposited at PS Punjabi Bagh deposed that he had sent these articles to the Police Station Sangam Vihar, meaning thereby on 21.08.2008 when as per PW1 Amar Singh Meena, visited the police station alongwith Smt. Bhonti Devi (wife of the deceased), the case property was not even present in the police station. PW3 Smt. Bhonti Devi in her examinationinchief, however, stated that she had visited the police station with PW1 Amar Singh Meena on 25.08.2008. However, no time of her visit has been mentioned in her statement. PW27 Inspector Satya Pal Singh is conspicuously silent in his examinationinchief about the visit of PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi in the police station when they identified the case property i.e black colour raxin bag and the mobile phone of deceased Vishram Meena. He deposed that he had collected the pulandas from the MHC (M) and deposited the same with the Malkhana of PS Sangam Vihar on which he conducted these proceedings, is not mentioned by him. Thus, the evidence as to SC No. 71/08 31/35 State vs. Kuldeep Singh & Anr.
identification of the black colour bag and the mobile phone by PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi is not proved beyond reasonable doubt. Further, the black colour bag which has been produced in the court Ex. P1 is an ordinary bag which can be easily found with anybody and also in the market. So far as the mobile phone make Nokia is concerned, it was produced in unsealed condition. PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi nowhere described in their examinationinchief what was the colour of the mobile phone of deceased Vishram Meena and on what basis they had identified the mobile phone (Ex. P2) as that of deceased Vishram Meena. Thus, this evidence is also not found clinching to connect the accused Vishal Pal and Kuldeep Singh with the offence.
21. The prosecution also relied upon the evidence that one half burnt railway guide and half burnt passbook of the post office of Smt. Bhonti Devi, wife of deceased Vishram Meena were recovered at the instance of accused Kuldeep Singh. PW27 Inspector Satya Pal Singh has deposed that he arrested the accused Kuldeep Singh on 15.09.2009 (it may be a typographical mistake as the accused Kuldeep Singh was arrested on 15.09.2008) and recorded his disclosure statement Ex. PW19/C pursuant to which, he took the police party and pointed out the place of occurrence and also took the police party to Tughlakabad Fort and got recovered half burnt booklet of railway guidelines and one passbook in the name of Smt. Bhonti Devi which was wrapped in a piece of paper. In this disclosure statement (Ex. PW19/C), accused Kuldeep Singh has not stated that these SC No. 71/08 32/35 State vs. Kuldeep Singh & Anr.
passbook and the booklet were burnt by him. He only stated that he had concealed them in a wall in Tughlakabad Fort. PW1 Amar Singh Meena and PW3 Smt. Bhonti Devi have deposed that the deceased Vishram Meena was carrying the passbook of Smt. Bhonti Devi in his raxin bag. The question arises whether he was carrying a half burnt passbook of the post office of Smt. Bhonti Devi? Whether he was carrying a half burnt railway guide? There is no answer to these queries. No logical answer comes to mind as to why would the deceased carry a half burnt railway guide and a half burnt passbook of Smt. Bhonti Devi in his bag while going on duty.
22. Moreover, the recovery of an article at the instance of the accused is a weak kind of evidence and conviction in a serious matter cannot be based on such recovery (Manu vs. State of Tamil Nadu AIR 2008 SC 1021).
23. While considering the relevancy of the recovery effected at the instance of the accused, the court has to consider the nature of the recovered article, the nature of the evidence as to its identification and the manner it has been dealt with by the accused, as well as the place of its recovery and the circumstances surrounding the same. Recovery of an article belonging to the deceased at the instance of an accused is undoubtedly one of the circumstance which can be considered by the court while deciding a case. Prima facie recovery of an incriminating article is a circumstance against an accused. But simply effecting recovery of an SC No. 71/08 33/35 State vs. Kuldeep Singh & Anr.
article at the instance of an accused cannot be considered sufficient to prove the guilt of the accused. There has to be something more than that to connect the accused with the offence. As said above, the nature of the recovered article and the manner in which the accused has dealt with the same are material considerations for the court to take into account while considering the relevancy of the recovery of those articles. The prosecution alleges that the accused Kuldeep Singh has disclosed about keeping the documents belonging to the deceased in the wall of Tughlakabad Fort. The documents which have allegedly been recovered are the passbook of the post office of Smt. Bhonti Devi (PW3) and the railway guide. No doubt these documents can have a nexus with the deceased but the question arises as to why he would keep these documents at a specific place. If these documents were already half burnt, then there was no use of them for the deceased to carry in his bag. If the accused had tried to burn them, then he could have as well burnt them completely. No logic is seen in keeping the half burnt documents by the deceased in his bag nor any logic is seen in burning the documents and keeping the half burnt documents concealed at the particular place by the accused. This evidence, therefore, does not inspire confidence. It is not convincing evidence.
24. The evidence on which the prosecution has relied has not been found sufficient to establish the guilt of both the accused persons. The graver the offence the higher the degree of proof is required to establish the guilt of an accused. The evidence led by the prosecution is not only of very SC No. 71/08 34/35 State vs. Kuldeep Singh & Anr.
weak character but also defies logic. It sounds so improbable that a person who commits an offence of murder would roam around, carrying the knife used in the commission of an offence, in his bag. Similarly, why would a person who commits an offence and has blood stains on his clothes, keep on wearing the same even after two days. The entire evidence is two contrived to evoke confidence. The law need not be stated again that when a case is based on circumstantial evidence, the chain of evidence must be so complete that the circumstances must be incapable of any explanation other than the guilt of the accused and should be conclusive in nature and should also exclude every other hypothesis except the guilt of the accused. Unfortunately, the evidence which has been led in the present case does not fall in the said category and, thus, the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Hence, both the accused persons are acquitted of the charge U/s 302 IPC read with Section 34 IPC. File be consigned to Record Room.
Announced in open court (AJAY KUMAR KUHAR)
Dated: 22.07.2011 Addl. Sessions Judge02: South East
Saket Court: New Delhi
SC No. 71/08 35/35