Delhi District Court
The State vs 1. Naveen S/O Karamvir Singh on 3 September, 2014
FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 04/14
UID NO . : 02404R0305232009
FIR No :208/09
P. S : S.P Badli
u/s 302/201/34 IPC
The State versus 1. Naveen s/o Karamvir Singh
R/o Kale Ka Makan , Mahavir Park,
Gali no.3, Bahadurgarh, Jhajjar
Haryana.
2. Sunita w/o Karambir Singh
R/o Kale Ka Makan , Mahavir Park,
Gali no.3, Bahadurgarh, Jhajjar
Haryana.
Date of committal to session court : 07.12.2009
Date of argument : 06.08.2014
Date of order : 03.09.2014
SC No. 04/14 State vs Naveen etc (convicted) (Page 1 of 72 )
FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
JUDGMENT
1. Facts and circumstances giving rise to the present case, as per the story of the prosecution are that:
a) On 20.8.2009 at about 6:53 am , PCR Van received an information from phone number 999053943 that one dead body was lying wrapped in a 'bori' on the bank of the Badli Canal near Sector -18 , DTC Depot. Said information was recorded vide DD no. 5 A at P.S Samaypur Badli and the same was marked to S.I Ashok Kumar (PW29) .
b) On the same day, on receipt of said DD no. 5 A, S.I Ashok Kumar alongwith Ct. Joginder reached at the spot and found one dead body whose upper portion was inside a 'tat bori' and the 'tat bori' was wrapped around with a black and white dotted piece of long cloth(katran).
Blood was found oozed from the nose and mouth and there was blood on the clothes of the deceased. The lower part of the dead body was wrapped in a cream colored bed-sheet printed with yellow & black strips and green & red flowers and leaves. The words " sulphitation sugar SBE (sugar ltd) Umesh Modj Group no. ISS Malak Pur India 100 Kg Net 2008-2009" were printed on the 'tat bori'. Crime team was also called which was headed by Inspector Puran Pant.
c) The scene of crime was inspected by Crime team and the photographs of the spot as well as of dead body were taken. A black colored leather purse was recovered from the right backside pocket of the black colour pant, worn by the SC No. 04/14 State vs Naveen etc (convicted) (Page 2 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC deceased. DL in the name of Anil Kumar s/o S.N Sharma , RC of M Cycle no. DL-8S-NB-3850 of Anil Kumar and some visiting cards were found in the said purse. Ct Joginder Kumar was sent on this address who returned back with one Sh Vinod Kumar ,who identified the dead body as that of his brother Anil Kumar . S.I Ashok Kumar took the 'tat bori', bed -sheet, black white dotted cloth, blood lying on the floor, blood stained earth and earth control into possession through various seizure memo's . Dead body was removed to mortuary BJRM hospital.
d) S.I Ashok Kumar prepared the rukka and got registered the FIR u/s 302/201 IPC through Ct. Aaskaran .
e) Further investigation of the case was entrusted to Inspector Rajender Dubey (PW33) who is shown to have reached at the scene of spot. S.I Ashok Kumar handed over all the exhibits seized by him alongwith documents prepared by him to Inspector Rajender Dubey . He prepared site plan at the pointing out of S.I Ashok Kumar .
f) Inspector Rajinder Dubey prepared the inquest paper and after postmortem doctor concerned has handed over him three sealed parcels alongwith sample seal. During investigation statement of Smt Sudesh wife of the deceased was recorded and it was revealed that deceased was having illicit relations with a women namely Sunita. CDRs of the mobile phone no's of the deceased , accused Sunita and Naveen were obtained .
g) On 25.8.2009 , accused Sunita and Naveen were arrested and they were interrogated . It is alleged that Naveen assaulted Anil Kumar in the evening of 18.8.2009 as he had seen Anil Kumar (deceased) with his mother (accused SC No. 04/14 State vs Naveen etc (convicted) (Page 3 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Sunita) in a compromising position , due to which Anil Kumar died. It is further alleged that accused Sunita helped accused Naveen to get rid of dead body of Anil Kumar.
k) After the completion of investigation, accused persons namely Sunita and Naveen were chargesheeted for offences u/s 302/201 IPC.
l) Vide order dated 23.11.2009, Ld MM took the cognizance of the offences and subsequently, since the offences u/s 302/201 IPC were exclusively triable by the court of sessions, therefore vide order dated 7.12.2009, case was committed to the court of sessions.
2. Vide order dated 28.1.2010, ld predecessor of this court decided the charges. Accused Naveen was charged for the offence u/s 302 IPC and he was charged separately alongwith co-accused Sunita for the offence u/s 201/34 IPC also. Accused persons pleaded not guilty and claimed to be tried.
3. In order to prove its case, prosecution has examined as many as thirty four witnesses. Here it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses which have come on record .
SC No. 04/14 State vs Naveen etc (convicted) (Page 4 of 72 )
FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
4. Public witnesses examined by the
prosecution are being detailed as under:
i) PW1 Smt Sudesh :- She is the wife of the Anil Kumar (deceased) She deposed that on 18.8.2009 , in the morning at about 9:30 am her husband Anil Kumar (deceased) went to Bawana Industrial area on his motorcycle for some work. At that time her husband was wearing black jeans pant and blue shirt and was also wearing one gold ring in his hand. In the evening when Smt Sudesh (PW1) tried to contact him on his mobile phone number, his phone was not responding at that time. On the next day i.e 19.8.2009, Smt Sudesh (PW1) wife of deceased tried to contact the deceased Anil Kumar on phone but the same was found switched off. She deposed that accused Sunita was having friendly terms with the deceased Anil Kumar to which she (PW1) , raised objections . She further deposed that she saw accused Sunita laughing with deceased Anil Kumar on many occasions and also saw her holding the hand of deceased on 2-3 occasions and accused Sunita was having illicit relations with the deceased Anil Kumar . She further deposed that accused Sunita had left her husband and thereafter Anil Kumar(deceased ) had helped her financially and deceased used to visit her house situated at Bahadurgarh regularly. PW1 was cross examined by the ld counsel for the accused persons.
ii) PW5 Santosh : He deposed that on 19.8.2009, he was residing at the house of Kake , First Floor, Mahaveer Park, Bahadurgarh , Haryana alongwith his brother -in-law(Jija) Ram Prasad (PW9) and his sister on the ground floor of the said house, accused Sunita was residing. He further deposed that on 19.8.2009, at about 6-7 am SC No. 04/14 State vs Naveen etc (convicted) (Page 5 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC accused Sunita came to him and told him that her one relative who had come to her house , has become unconscious. He went down stair in the accommodation of accused Sunita and found that one man aged around 40-45 years was lying unconscious and some moments were there in his body due to which he realized that it may be a case of epilepsy(mirghi). He put a shoe near the nose of Anil (deceased)to make him inhale the smell of shoe, but he did not become normal and became unconscious . Thereafter he alongwith accused Naveen went to call a doctor on his motorcycle but the doctor refused to visit and asked accused Naveen to bring the patient to his clinic.
Thereafter, he alongwith accused Naveen came back to the house . PW5 was also cross examined by the ld counsel for the accused persons.
(iii) PW6 Raj Kumar : He deposed that he is running a shop in the name and style of Upkar Provision Store at Railway Road, Bahadurgarh . On 19.8.2009, accused Sunita came to the his shop and had purchased one empty sack(Bori) of sugar alongwith some other articles for Rs 28/- . He further deposed that later on when the police officials visited his shop alongwith accused Sunita , he identified accused Sunita and narrated the fact of selling empty sugar sack(Bori) to her, to the police officials. Ld counsel for the accused persons have cross examined PW6.
iv) PW7 Vinod Kumar : He is the brother of Anil Kumar (deceased ). on 20.8.2009, he identified the dead body lying on the bank of canal as of his younger brother Anil Kumar.
SC No. 04/14 State vs Naveen etc (convicted) (Page 6 of 72 )
FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
v) PW8 Jai Bhagwan : On 20.8.2009 , this witness was on morning
walk at around 6 :00 am towards Bawana Canal. At about 6:55 am, when he reached near DTC Depot , Sector 18, Rohini on the bawana Canal, he noticed one dead body lying on the bank of the canal in a jute bag and there was also blood on the jute bag. He made a call at 100 number. PW8 was cross examined by the ld counsel for accused.
vi) PW9 Ram Prasad : In the year 2009, he was residing at the first floor of the house where on ground floor accused Sunita was residing. On 19.8.2009, he was on night duty and at about 7:15 am when he came back to his house after performing his duties, accused Naveen went to him and stated that his guest is not feeling well he wanted to take him to the hospital . Thereafter, he alongwith accused Naveen and accused Sunita took the guest, who was aged about 40 years to Mission Hospital where he was medically examined and was declared as dead and thereafter the dead body of the said guest was brought back to the house by him alongwith co-accused Naveen in the three wheeler . PW9 was also cross examined .
vii) PW10 Ram Niwas : He is the owner of the house no. 17/217, Gali no. 3, Mahabir Park, Bahadurgarh, District Jhajjar, Haryana . He deposed that the ground floor of the said premises was rented out to accused Sunita at monthly rent of Rs 3000/- per month. Accused Sunita resided there for 8-9 months prior to the date of incident in question. PW10 Ram Niwas was cross examined by the ld counsel for the accused persons.
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FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
viii) PW11 Rajesh Rathi : He deposed that on 23.6.2008 , he sold
the vehicle i.e Santro Car bearing no. DL- 4 CR- 2312 to one Sanjay Mathur for a consideration of Rs Two lacs and affidavit in this regard is ExPW11/A .
ix) PW16 Sh Raghubir Singh : As per the case of the prosecution he is the last seen witness. He deposed that Anil Kumar (deceased ) was the son-in-law of his collegue Sh Ramksihan . On 18.8.2009, in the evening of 18.8.2009 at about 4-5 pm , he met Anil Kumar (deceased) at Nehru Park Market, Delhi Rohtak Road and at that time deceased Anil was accompanied by accused Sunita and one boy . On enquiry being made by from Anil (deceased) about the purpose of his visit , deceased Anil disclosed that accused Sunita and her son are resident of Badli village and now they reside in the Mahavir Park in Bahadrgarh and on that day he ( deceased Anil Kumar) came alongwith accused Sunita and the boy for medical check up of the boy as she is a widow lady and also his relative . Later on he came to know that Anil has been murdered and he disclosed about his meeting with Anil (deceased) . PW16 was also cross examined by the ld counsel for the accused persons.
x) PW18 Sh Naresh Chand : He is the witness from transport authority Janakpuri, who deposed that as per record vehicle bearing no. DL-4CR-2312 was registered in the name of India Export House Private Limited on 13.10.2003 and the ownership of said vehicle was transferred in the name of Rajesh Rathi on 28.1.2008. He proved SC No. 04/14 State vs Naveen etc (convicted) (Page 8 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC report ExPW18/A.
5. Following police officials were examined as prosecution witnesses:-
i) PW2 HC Sunaina :- She was working as duty officer on 20.8.2009 at P.S S.P Badli from 9:00 to 5:00 am. She proved registration of FIR ExPW2/A. .
She also proved DD no.10 A ExPW 2/B and DD no.11/A ExPW2/C and made endorsement on the rukka ExPW2/D at point X.
ii) PW3 Constable Ravinder :- He was posted with Mobile Crime Team on 20.8.2009. He alongwith crime team headed by S.I Puran Pant reached at sector 18, Rohini at Bawana Canal, opposite DTC Bus depot and found dead body lying between the canal and road. He took photographs of the dead body on the directions of the IO and proved the photographs as ExPW3/1 and ExPW3/6 . Negatives are ExPW3/1 A to ExPW3/6 A .
iii) PW4 Constable Anand Singh :- He is the witness who delivered the copy of the FIR in the court of ld Magistrate concerned and also at the office of DCP(Outer) , Joint CP(NR).
iv) PW12 S.I Manohar Lal : This witness was posted as draftsman in NW District. On 08.11.2009 , on the pointing out of S.I Ashok ( PW29) , he took the measurement and prepared the rough notes of Sector 18, Rohini canal from where the dead body was recovered. He prepared scaled site plan ExPW12/A and handed over the same to Inspector Puran Pant( PW34) . On the same day i.e 08.11.2009, he on the pointing out of Inspector Rajender Dubey (PW33) also took the SC No. 04/14 State vs Naveen etc (convicted) (Page 9 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC measurement and prepared the rough notes of the place of Mahavir Park , Bahadurgarh where the deceased was murdered and prepared the scaled site plan ExPW12/B and handed over the same to Inspector Puran Pant subsequently after preparation.
v) PW13 HC Rohtash : He is the witness who on 20.8.2009,at around 6:58 am, received information from wireless operator that one dead body is lying behind the DTC Bus Depot sector 18, Rohini on the bank of Badli Canal. He reduced the said information into writing vide DD no. 5 A ExPW13/A which was marked to S.I Ashok Kumar.
vi) PW14 Ct. Ashok Kumar : He is the formal witness who handed over DD no. 5/A to S.I Ashok Kumar.
vii) PW17 HC Pramod : During the relevant time, he was working as MHC(M) at P.S S.P Badli . He got deposited case properties and results on various dates.
viii) PW19 Wct Poonam : On 20.8.2009, she was posted with PCR and was on duty on Channel no.133. On that day at about 6:53 am , she received an information that one dead body was lying at the bank of Canal of Badli on the back side of DTC Depot( under construction) at Sector 18, Rohini. She recorded the information and filled up the PCR form .
ix) PW20 ASI Sudesh Kumar : He is a formal witness who proved the filing of complaint by the wife of deceased to the Commissioner of SC No. 04/14 State vs Naveen etc (convicted) (Page 10 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Police.
x)PW21 HC Jawahar : He is the witness who was posted on duty at PCR Van Libra 88 in the intervening night of 19/20.8.2009. At about 6:50 am. He received a call from control room that one dead body was lying near the drain , Sector 18, Rohini where the DTC bus depot was in process of construction. He confirmed the message to Control Room and thereafter crime team reached at the spot.
xi) PW25 Ct.Karan Singh : He is the formal witness who has obtained CDR of mobile number 9996330237 , from Bharti Airtel office Mohali.
xii) PW 26 Ct. Ashkaran : He is the witness to whom rukka was handed over by IO for registration of FIR .
xiii) PW 27 ASI Rajbir : He is the witness in whose presence accused Sunita and Naveen were arrested vide memo ExPW27/A & ExPW27/B . Their personal search was conducted vide memo ExPW27/C & ExPW27/D and disclosure statement ExPW27/E & ExPW27/F respectively were recorded. He was alongwith the IO Inspector Rajender Dubey during investigation.
xiv) PW29 S.I Ashok Kumar : He is the initial IO . He deposed that on 20.8.2009 at about 7:00am on receipt of DD no.5 A Ex ExPW13/A , he reached at the spot and found one dead body of which upper portion was covered with Tat Bori and the lower portion was covered with bed sheet of cream colour, having flowers and leaves. He called the crime team at the spot and the crime team came alongwith the photographer SC No. 04/14 State vs Naveen etc (convicted) (Page 11 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC and inspected the spot. He noticed that blood was coming from the nostrils as well as from the mouth of the dead body . Blood was also found on the clothes of the dead body and on the tat bori. On search of the dead body he found found one black colour purse from the pocket of the pant of the dead body in which one driving license in the name of Anil Kumar and one RC of motorcycle bearing registration no. DL 8 SN B 3850 in the name of Anil Kumar was also found and at the back of the aforesaid documents address was also mentioned, therefore, he sent constable Joginder to above said address . Thereafter after some time constable Joginder alongwith one public person namely Vinod Kumar(PW7) came back at the spot. Said Vinod Kumar (PW7) had identified the dead body as that of his younger brother Anil. He took into possession Tat Bori , Bed sheet and cloth piece of black colour with white dot , by which the tat bori was tied and, after keeping the above said articles in separate parcels and sealed it with the seal of AK and seized it vide seizure memo ExPW29/A. He also seized blood with the help of cotton from the spot alongwith blood stained earth and earth sample without blood . It was kept separately in plastic vials and sealed with the seal of AK and seized vide seizure memo ExPW29/B. Black colour purse alongwith the documents belonging to the deceased was seized vide memo ExPW29/C . Dead body to Mortuary, BJRM Hospital and he prepared rukka ExPW29/D and the rukka was sent through constable Aaskaran for registration of FIR.
xv) HC Babu Prasad : He is another formal witness who obtained the attested copy of the CDR of phone no. 9278346006 & 9910744612 .
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FIR No.208/09
D.O.D 3.09.2014 P.S S.P Badli
u/s 302/201/34 IPC
xvi)PW33 Inspector Rajender Dubey : He is the IO of the present case. He took the investigation from S.I Ashok Kumar after registration of FIR and carried out the further investigation. He got conducted postmortem on the body of deceased, handed over dead body to Vinod vide receipt ExPW7/A. He is shown to have arrested both the accused persons on 25.8.2009 vide ExPW27/A and ExPW27/B and also recorded their disclosure statement ExPW27/E and ExPW27/F respectively. He deposed that accused Sunita got recovered one golden ring belonging to the deceased Anil Kumar,which was seized vide seizure memo ExPW24/G and accused Naveen got recovered the motorcycle number DL 8SNB 3850 belonging to deceased Anil Kumar, which was seized vide seizure memo ExPW29/J. He has also obtained the call details pertaining to the mobile phones of accused Sunita, Naveen and deceased Anil Kumar.
xv) PW34 Inspector Puran Pant : He deposed that on 20.8.2009, he received information at about 7:20 am and thereafter, he alongwith Crime team reached at the spot where dead body of male was found at the spot. He inspected the scene of crime . Ct Ravinder (PW3) took the photographs and prepared the mobile crime team report ExPW34/A. He further deposed that on 08.11.2009, after receiving the case file for further investigation, he called the draftsman S.I Manohar Lal (PW12) . On the pointing out of S.I Ashok ( PW29) , S.I Manohar Lal (PW12) draftsman took the measurement and prepared the rough notes of Sector 18, Rohini canal from where the dead body was recovered. The scaled site plan is ExPW12/A . S.I Manohar Lal SC No. 04/14 State vs Naveen etc (convicted) (Page 13 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC (PW12) handed over ExPW12/A to him( PW34) . On the same day i.e 08.11.2009, S.I Manohar Lal (PW12) on the pointing out of Inspector Rajender Dubey (PW33) also took the measurement and prepared the rough notes of the place of Mahavir Park , Bahadurgarh where the deceased was murdered .The scaled site plan is ExPW12/B which S.I Manohar lal (PW12) handed over to him subsequently after preparation.
Medical Evidence :
i) PW15 Dr. Dharambir : In the year 2009, he was working in Mission Hospital, Rohtak Road, Bahadurgarh, Haryana . He deposed that on 19.8.2009, in the morning at about 7:00 am , one male patient was brought to the hospital by accused Sunita alongwith 2-3 attendants and told that the patient is facing heart ailments. He examined the patient but he was found dead and the patient was sent back. He further deposed that when police made inquiries from him, he gave in writing to the IO Rajinder Dubey (PW33) the entire facts vide ExPW33/C.
ii) PW24 Dr. K Goyal: On 20.8.2009, he conducted postmortem on the dead body of Anil Kumar and opined that the cause of death was cerebral damage (head injury) as a result of blunt force impacts and sufficient to cause death in ordinary course of nature . All injuries were antemortem in nature and were consistent with striking of head against flat blunt surface repeatedly . Time since death was about 32-33 hours. Postmortem report given by him is ExPW24/A. Scientific evidence SC No. 04/14 State vs Naveen etc (convicted) (Page 14 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC
i) PW22 Sh M.N Vijayan : He is witness from Tata Tele Services and had brought the record pertaining to telephone no. 9278346006 and deposed that said telephone is issued in the Naveen Kumar(accused ) s/o Sh K.B Singh ,Village & PO Badli, Delhi and proved the CDR of said mobile phone as ExPW22/A, Cell ID Chart as ExPW22/B and forwarding letter as ExPW22/C . The certificate u/s 65 B (4)(c ) is ExPW22/D.
ii) PW23 Sh Tarun Khurana : He brought the call detail record of mobile phone number 9910744612 issued in the name of Raj Kumar from period w.e.f 16.8.2009 to 21.8.2009 ExPW23/A . According to the prosecution , this phone was used by deceased Anil Kumar.
iii) PW 28 Sh Vishal Gaurav : He is the witness from Bharti Airtel Limited who brought record pertaining to mobile number 9996330237 and proved the CDR of the said mobile number w.e.f 16.8.2009 to
21.8.2009 as ExPW28/A and the subscriber details as ExPW28/B. Copy of customer application form of mobile number 999330237 is ExPW28/C, Election I Card of accused Sunita is ExPW28/D. Cell ID Chart is ExPW28/E and the certificate u/s 65 B of the Indian Evidence Act is ExPW28/F.
iv) PW30 Smt Anita Chhari : She was posted as Senior Scientific Officer (Biology) FSL , Rohini , Delhi . She deposed that on 30.9.2009, she examined 11 parcels which were received in their office. The seals were intact and according to sample seal. After examination of SC No. 04/14 State vs Naveen etc (convicted) (Page 15 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC the exhibits , she had given detailed report (Biology) which is ExPW30/A . Serological report is ExPW30/B .
v) PW31 Ms Smita Garg, the then ld ACMM : She deposed that The TIP of the gold ring of deceased Anil was assigned to her vide ExPW31/A and she conducted the TIP of the said ring and the TIP proceedings are ExPW31/B . The gold ring was identified by Sudesh (PW1) wife of the deceased . The application of the IO for supply of TIP proceedings are ExPW31/D .
6. Thereafter prosecution evidence was closed and statement of accused persons u/s 313 Cr. PC were recorded . During the statement u/s 313 CrPC , accused persons denied the allegations. They opted to lead evidence in their defence and has examined one Karamvir as DW1 .
7. DW1 Karamvir deposed that he got married with Sunita (accused) in the year 1983 and Praveen and Naveen(accused ) are his two sons. He is having good relations with his wife Sunita and is residing with his wife since marriage. He further deposed that in the year 2007-2008, he was not feeling well , therefore, he was residing with his brother at Badli at SC No. 04/14 State vs Naveen etc (convicted) (Page 16 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC H.NO A 54. On 18.8.2009 and 19.8.2009, he was in village Badli alongwith with his brother . His son Naveen was also residing with him . DW1 was cross examined by the ld Addll P.P for state.
8. I have heard the Ld Addl. P P for the state and the ld counsel for the accused persons . I have also perused the record very carefully.
9. Accused Naveen is facing trial on the allegations that on the intervening night of 18.8.2009 at house Kale Ka Makan, Mahaveer Park, Gali no.3 , Bahadurgarh Jhajjar, he intentionally gave beating to Anil Kumar and committed his murder. It is further alleged that accused Naveen and Sunita (mother of the accused Naveen) in furtherance of their common intention lifted the dead body of Anil Kumar from their house and threw away the same, after packing it in jute bag , in Bawana Canal, behind DTC Depot, sector 18 Rohini and intentionally caused the evidence of murder to disappear with intention to screen themselves from legal punishment.
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10. The case of the prosecution entirely rests on circumstantial evidence. It is well settled law 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 or the guilt of any other person. 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.
11. The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court. It is unnecessary to burden this judgment by making reference to all such decisions. I may content with reference to decisions in Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein Hon'ble SC No. 04/14 State vs Naveen etc (convicted) (Page 18 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully 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 (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.
12. The doctrine of circumstantial evidence was once again discussed and summarized in Sattatiya @ Satish Rajanna Kartalla vs State of Maharashtra , 2008(3) SCC 210 in the following terms :
"...It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be SC No. 04/14 State vs Naveen etc (convicted) (Page 19 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC totally incompatible with the innocence of the accused. Of course, the circumstance from which an inference as to the guilt 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."
13. In the instant case , prosecution in order to prove its case mainly relied on the following circumstances:
i) Deceased Anil Kumar suffered homicidal death in the intervening night of 18/19-8.2009.
ii) Last seen witness- Raghubir Singh (PW16) , on 18.8.2009.
iii) On 18.8.2009 , deceased Anil Kumar was present with the accused persons at Kale Ka Makan , Mahavir Park, Gali no.1, Bahadur garh, Haryana and in the morning of 19.8.2009 he was taken to Doctor Dharambir, Mission Hospital, Bahadur Garh, Haryana.
iv) Both the accused persons caused evidence of murder to disappear with intent to screen themselves from legal punishment.
v) Recovery of gold ring belonging to the deceased Anil Kumar at the instance of the accused Sunita from her house.
vi) Recovery of motorcycle make Hero Honda bearing registration no. DL- 8S- NB-3850 belonging to the deceased Anil Kumar at the instance of accused Naveen.
vii) Recovery of blood stained mattresses from the house of accused persons.
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i) Deceased Anil Kumar suffered homicidal death in the intervening night of 18/19-8.2009.
14. Dr. K Goyal (PW24) on 20.8.2009 conducted postmortem on the body of the deceased Anil Kumar. He deposed that patient was brought with the alleged history of found dead by police after receipt of a call vide DD no.5 A dated 20.8.2009. The clothes on the body were having blood stains. The cause of death was opined as cerebral damage (head injury) as a result of blunt force impacts and sufficient to cause death in ordinary course of nature . All injuries were antemortem in nature and were consistent with striking of head against flat blunt surface repeatedly . Time since death was about 32-33 hours. His detail PM report is ExPW24/A.
15. According to the prosecution , deceased Anil Kumar left his residence in the morning of 18.8.2009 at around 9:30 am . Smt Sudesh (PW1) who is the wife of the deceased Anil Kumar, deposed that on 18.8.2009 , in the morning at about 9:30 am her husband Anil Kumar (deceased) went to SC No. 04/14 State vs Naveen etc (convicted) (Page 21 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Bawana Industrial area on his motorcycle for some work. The dead body of the deceased was recovered in the early morning on 20.8.2009 from the Bawana Canal.
16. PW24 Dr. K.Goyal has not been cross examined by the accused persons despite opportunity. Meaning thereby, the accused persons have not disputed the medical evidence. As stated herein above the time since death was 32-33 hours . Postmortem report ExPW24/A indicates that postmortem was conducted around 3 pm and the time of the death was about 32-33 hours which suggests that death took place some what around in the intervening night of 18.8.2009. Accused persons have not disputed the medical evidence. Accepting the medical evidence, it is clear that Anil Kumar suffered a homicidal death in the intervening night of 18/19-8.2009.
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ii) Last seen witness- Raghubir Singh (PW16) , on 18.8.2009.
17. In order to prove the same prosecution has examined one Raghubir Singh as PW16. He deposed that he knew Anil Kumar (deceased ) as he was son-in-law of his colleague Sh Ramkishan . On 18.8.2009, he came to the house of his sister -in- law at Nehru Park, New Rohtak Road, Bahadurgarh . In the evening of 18.8.2009 at about 4-5 pm when he went to the Nehru Park Market, Anil Kumar (deceased) met him there. He further deposed that at that time deceased Anil (deceased) was accompanied by accused Sunita and one boy . He made enquiries from Anil about the purpose of his visit who told him that accused Sunita and her son are resident of Badli village and now they reside in the Mahavir Park at Bahadurgarh . Deceased Anil also told him that day he ( deceased Anil Kumar) came alongwith accused Sunita and the boy for medical check up of the boy as she is a widow lady and also his relative . PW16 further deposed that after some time he came to know about the SC No. 04/14 State vs Naveen etc (convicted) (Page 23 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC murder of deceased Anil. Later on he came to know that Anil has been murdered . PW16 Raghubir Singh identified accused Sunita as the lady with whom Anil (deceased ) was seen but he could not identify the accused Naveen.
18. During cross examination , PW16 replied that he was having friendly relations with Ramkishan. He denied the suggestion that he had not attended the marriage of Anil with Sudesh. He replied that deceased Anil met him at Nehru Park , Rohtak Road, Bahadur garh, Haryana . Both accused persons met him on 18.8.2009. He further replied that he had seen deceased Anil Kumar with accused Naveen Kumar and Sunita on 18.8.2009. All other suggestions put to him by defence counsel has been denied by the witness.
19. During the argument, ld counsel for the accused persons submitted that if Raghubir Singh (PW16) was the colleague of Ramkishan, father-in- law of deceased Anil , then he could have told the SC No. 04/14 State vs Naveen etc (convicted) (Page 24 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC aforesaid fact to the police or at least to Ram Kishan immediately after the death of the deceased of Anil. He submitted that aforesaid facts were disclosed by him after around 2 months. Ld counsel submitted that in the given facts and circumstances, no prudent man would believe him that he would not come forward to make statement and will not tell the same to the police or at least to the family member of deceased Anil Kumar.
20. I am of the opinion that this cannot be a ground to reject the testimony of PW16 Raghubir Singh. He has deposed that deceased Anil is the son-in-law of his colleague teacher Ram Kishan. During his cross examination he replied that when Ramkishan told him that Anil (deceased ) has been murdered then he had told him ( RamKishan) that he had seen Anil Kumar with accused Naveen and Sunita on 18.8.2009. He categorically stated that on 18.11.2009, he met Ram Kishan. There is nothing on record which could suggest that Raghubir Singh(PW16) came to know about the death of Anil SC No. 04/14 State vs Naveen etc (convicted) (Page 25 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC prior to that. PW16 Raghubir Singh was examined before this court on 19/10/2010. At that time, his age has been shown as 62 years and occupation Retd Master , Haryana Govt. The incident is dated 18.8.2009.
21. That being so, there is every possibility that there may be no contact between Raghubir Singh and father-in-law of the deceased during that period and as and when he came to know about the death of Anil (deceased) he came forward. Other evidence adduced by the prosecution , to be discussed little ahead, also suggests the presence of deceased Anil with the accused persons . Therefore, the circumstance of last seen by Raghubir Singh lands credence to his testimony and cannot be rejected. This incriminating circumstance, is against accused persons which corroborate the story of prosecution.
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iii) On 18.8.2009 , deceased Anil Kumar was present with the
accused persons at Kale Ka Makan , Mahavir Park, Gali no.3,
Bahadur garh, Haryana and in the morning of 19.8.2009 he was
taken to Doctor Dharambir, Mission Hospital Bahadur Garh,
Haryana.
22. As per the story of prosecution, at the time of the incident accused persons were residing at Kale ka Makan, Gali no.3, Bahadurgarh , Haryana. PW10 Ram Niwas is the owner of the said house. He deposed that In the year 2009 , he used to reside at house no. 17/217, Gali no. 3, Mahabir Park, Bahadurgarh, District Jhajjar, Haryana and the ground floor of the said premises was rented out to accused Sunita at monthly rent of Rs 3000/- per month. He identified accused Sunita in the court. During cross examination, he replied that no written agreement was made between him and tenant Sunita regarding tenancy. He further replied that he could not say whether accused Naveen was also residing. He also replied that no rent deed was prepared with regard to the tenancy of Ram Prasad (PW9) and Santosh (PW5) and no rent receipt is being issued regarding SC No. 04/14 State vs Naveen etc (convicted) (Page 27 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC the tenancy to them. He further deposed that Ram Prasad (PW9) and Santosh (PW5) have not vacated the premises.
23. The cross examination of PW10 Ram Niwas indicates that even the accused persons were admitting that Ram Prasad(PW9) and Santosh (PW5) were also tenant in the aforesaid house. As far as the tenancy of accused Sunita is concerned, same is not in dispute . During the statement recorded u/s 313 CrPC , accused Sunita admitted that in that house she used to reside but replied that she used to reside alongwith her husband. She also replied that no other tenant was residing there which is falsified by the fact that during the cross examination of S.I Ashok Kumar (PW29) certain suggestions were put to him which make it clear that Ram Prasad(PW9) and Santosh(PW5) were also residing as tenant in the said house. During cross examination PW29 replied "... it is correct that the first floor of the house from where the recovery was effected was also inhabited . No one was called from the first floor to become a witness. It is wrong to suggest that first floor was having public persons, but they were not joined SC No. 04/14 State vs Naveen etc (convicted) (Page 28 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC deliberately as a witness. ..... It is wrong to suggest that PW Santosh was present at the first floor after he had arrived from the work place about 7:00 pm , at the time of recovery and they were deliberately not called to join the proceeding... It is wrong to suggest Ram prasad and Santosh were present at the first floor at the time of alleged recovery and they were deliberately not called to join the proceedings ....". This part of cross examination suggests that accused persons themselves are admitting the presence of PW5 Santosh and PW9 Ram Prasad at the aforesaid house as a tenant.
24. Moreover, said Santosh appeared in the witness box and has been examined as PW5. He deposed that he resided at house of Kale, First floor, Mahaveer Park, Bahadurgarh, Haryana alongwith his brother-in-law Ram Prasad (PW9). PW9 Ram Prasad also deposed that he was residing at the aforesaid address alongwith his family at first floor. From the testimony of PW5 Santosh , PW9 Ram Prasad, PW10 Ram Niwas and PW29 S.I Ashok Kumar, it stands established that accused Sunita was residing at Kake Ka Makan, ground floor, Mahaveer Park, Bahadurgarh, Haryana, as a tenant and PW5 SC No. 04/14 State vs Naveen etc (convicted) (Page 29 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Santosh and PW9 Ram Prasad were also residing as tenant at first floor of said house.
25. PW5 Santosh deposed that on 19.8.2009, at about 6-7 am , one lady namely Sunita, who used to reside on the ground floor of the house came to him and told him that her one relative, who had come to her house, has become unconscious. At that time Ram Prasad(PW9) was not there. He went down stair in the accommodation of Sunita and found that one man aged around 40-45 years was lying unconscious and some moments were there in his body due to which he realized that it may be a case of epilepsy(mirghi). He put a shoe near the nose of said person to make him inhale the smell of shoe, but he did not become normal and became unconscious. Thereafter he alongwith Naveen went to call a doctor on his motorcycle but the doctor refused to visit and asked accused Naveen to bring the patient to his clinic. Thereafter, he alongwith Naveen came back to the house . In the meanwhile, his brother-in-law Ram Prasad (PW9) also SC No. 04/14 State vs Naveen etc (convicted) (Page 30 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC came there after preforming his night duty and he took said person in a three wheeler to some hospital .
26. PW5 was cross examined by the accused persons. During cross examination, he replied that he came to the ground floor and at that time one person was having froth coming from his mouth, who was lying in the house of Sunita. There was no blood oozing out from the nose or mouth of the said person. His brother-in-law (Jija) reached there after 7:00-7:15 am.
27. Initially PW5 was cross examined on 13.5.2010. He was again recalled for his cross examination on 30.8.2013 . During his further cross examination, he denied the suggestion that on 19.8.2009, accused Sunita never came to him for seeking any help or that none of her relative was ever ill. He also denied the suggestion that he did not accompany accused Naveen to call the Doctor. He categorically stated that on 18.8.2009, his Jija (PW9 Ram Prasad) might have left the house at 7:00-
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7:30 pm and he came back at about 7:30 am on
19.8.2009.
28. Testimony of PW5 Santosh finds
corroboration and support from the testimony of
PW9 Ram Prasad. PW9 Ram Prasad deposed that in
the year 2009, he was residing at the first floor of
the house where on ground floor accused Sunita was residing. On 19.8.2009, he was on night duty and at about 7:15 am when he came back to his house after performing his duties, accused Naveen went to him and stated that his guest is not feeling well he wanted to take him to the hospital . Thereafter, he alongwith accused Naveen and accused Sunita took the guest, who was aged about 40 years, to Mission Hospital where he was medically examined and was declared as dead and thereafter the dead body of the said guest was brought back to the house by them in the three wheeler .
29. During cross examination, PW9 replied that when the guest was being removed to the hospital, SC No. 04/14 State vs Naveen etc (convicted) (Page 32 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC he was unconscious and at that time he was not having any external injury and blood was not noticed on the visible parts of the body. PW9 was also recalled for further cross examination on 30.8.2013 and he replied that on 19.8.2009 he reached to his house at about 7:15 am. His brother-in-law Santosh (PW5) met him when he reached there. He denied the suggestion that nobody was sick on the ground floor nor he accompanied him to the hospital.
30. As discussed herein above, it also stands established that PW5 Santosh and PW9 Ram Prasad were residing at the first floor as tenant in the premises owned by Ram Niwas (PW10). The testimonies of PW5 Santosh and PW9 Ram Prasad is consistent and there is no contradiction. Their presence in the early morning of 19.8.2009 at aforesaid house stands established. It also stands established that accused Naveen was also present there when PW5 Santosh and PW9 visited them. Their testimonies have been further supported by the testimony of PW15 Dr. Dharambir. PW5 Santosh and SC No. 04/14 State vs Naveen etc (convicted) (Page 33 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC PW9 Ram Prasad are mentioning about taking guest of accused persons to the Doctor .
31. PW15 Dr. Dharambir deposed that in the year 2009, he was working in Mission Hospital, Rohtak Road, Bahadurgarh, Haryana. He deposed that on 19.8.2009, in the morning, at about 7:00 am , one male patient was brought to the hospital by accused Sunita alongwith 2-3 attendants and told him that the patient is facing heart ailments. He examined the patient but he was found dead and the patient was sent back . He further deposed that when police made inquiries from him at that time also accused Sunita was with them and he identified her and he told the police that she had brought the patient in the hospital, who was declared brought dead.
32. Although, PW15 was cross examined by the ld defence counsel but the testimony of PW15 on material points regarding attending the patient in the SC No. 04/14 State vs Naveen etc (convicted) (Page 34 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC morning of 19.8.2009 at around 7:00 -7:09 am and that one lady alongwith 2-3 attendants came there, has gone unrebutted. Accused Sunita was identified by PW15 Dr. Dharambir and in this regard his testimony has gone unchanged. During his cross examination, PW15 replied that he examined the patient for about 5-10 minutes. He further replied that he has taken the brief history from the accused Sunita who told him that patient was suffering from heart ailment.
33. Ld counsel for the accused persons vehemently argued that although these witnesses are taking about one patient but they have never said that it was deceased Anil . He submitted that it was not put to these witnesses that, that patient was Anil Kumar ( deceased), therefore, it may be some other person. Even the photographs of the deceased were not put to these witnesses. In my opinion the aforesaid may be a small draw back on the part of the prosecution but it would not effect the case of the prosecution much. Had it been so, it would have SC No. 04/14 State vs Naveen etc (convicted) (Page 35 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC been a conclusive proof to further support the case of the prosecution, but even in the absence of the same, I do not find any reason to disbelieve the testimonies of PW5 Santosh , PW9 Ram Prasad and PW15 Dr. Dharambir. All these three witnesses are independent witnesses. They are not related either to the deceased or his family members. It is also not the case of the accused persons that these witnesses are inimical towards the accused persons. Accused persons have miserably failed to explain as to why these witnesses would depose falsely against them and will implicate them in a case of murder. Not even a suggestion was put to these witnesses in this regard.
34. It has been seen that generally independent public witnesses hardly come forward in support of the truth particularly in a case of murder and when such witnesses, who are speaking the truth, are coming forward, they should be welcomed as it is not only the demand of administration of justice but also of the society in general . This court SC No. 04/14 State vs Naveen etc (convicted) (Page 36 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC has no hesitation in holding that testimonies of these witnesses have a clear cut ring of truthfulness and as such inspire confidence of this court.
35. The presence of deceased Anil Kumar with the accused persons on the intervening night of 18/19-8-2009 , further finds support from the call details of mobile phones. PW1 Smt Sudesh deposed that her husband Anil Kumar (deceased) was having mobile number 9910744612. It has not been disputed by the accused persons during cross examination of PW1. PW23 Tarun Khuran, Nodal Officer, Bharti Airtel, deposed that the said number is in the name of one Raj Kumar. Its true that it has not been explained as to how deceased Anil Kumar get the said number on the identity of Raj Kumar but from the testimony of PW1, as stated herein above, it has come on record that it was used by deceased Anil Kumar.
36. During the statement recorded u/s 313 CrPC , accused Naveen & Sunita have not denied that mobile number 9278346006 belongs to accused Naveen and mobile number 9996330237 belongs to SC No. 04/14 State vs Naveen etc (convicted) (Page 37 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC accused Sunita. Even otherwise also PW22, M.N Vijyan , Nodal Officer, Tata Tele Services has produced the record pertaining to the mobile number 9278346006 and PW28 sh Vishal Gaurav produced the record pertaining to mobile number 9996330237 which indicate that mobile number 9278346006 is in the name of accused Naveen and mobile number 9996330237 is in the name of accused Sunita.
37. The present incident took place on the intervening night of 18/19-8-2009 . As per the call details ExPW23/A , there were the calls from 9996330237 (phone belonging to accused Sunita) to the phone (9910744612) of deceased Anil Kumar on 17.8.2009 at about 12:03:59 for 117 seconds , one call at 13:40:14 for 73 seconds , at 15:52:10 for 29 seconds and on 18.8.2009, one call was at 09:28:43 for 52 seconds and another call on the same day was at 09:30:26 for 39 seconds . As per the call details ExPW28/A , on 19.8.2009 there are around ten calls between both the accused persons from their aforesaid mobile phones from 11:08:22 to 16:35:13 for different durations.
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38. PW1 Smt Sudesh has deposed that on
18.8.2009, in the morning at about 09:30 am, her
husband(deceased) went to Bawana Industrial Area an thereafter , he never returned. Aforesaid call details indicate that at around 09:30 am , there were two calls between the accused Sunita and deceased Anil Kumar . This all is pointing the finger towards the accused persons and support the theory of the prosecution that on 18.8.2009 , deceased Anil Kumar had visited accused Sunita at Bahadurgarh and in the morning of 19.8.2009, Anil Kumar (deceased) was taken to Mission Hospital.
iv) Both the accused persons caused evidence of murder to disappear with intent to screen themselves from legal punishment.
39. PW8 Jai Bhagwan is the person, who first time in the morning of 20.8.2009 at about 6:55 am had noticed dead body of Anil Kumar on the bank of the Bawana canal . He made a call to 100 number. PCR van is shown to have reached at the spot.
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40. PW13 HC Rohtash deposed that on
20.8.2009, at about 6:58 am, he received
information from wireless operator that one dead
body is lying behind the DTC Bus depot, sector 18, Rohini on the bank of Badli Canal. The said information was reduced into writing vide DD no. 5 A and the same was marked to S.I Ashok Kumar (PW29). PW29 S.I Ashok Kumar deposed that on 20.8.2009, at about 7:00 am , he received a call vide DD no.5 A that a dead body was lying on the side of Badli Canal, near the DTC Depot, which was under
construction. He alongwith Ct Joginder reached at the place of information, where he found one dead body of which upper portion was covered with Tat Bori and the lower portion was covered with bed sheet of cream colour having flowers and leaves. Suplhitation Sugar and some other words were written on the said bori. Crime team was called at the spot, who inspected the scene of crime and photographs were taken by the photographer. Dead body was sent to Mortuary , BJRM Hospital.
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41. PW33 Inspector Rajender Dubey deposed that on 25.8.2009, he alongwith S.I Ashok(PW29) and other staff alongwith both accused persons went to Bahadurgarh where both the accused persons led them to their rented house situated in gali no.3, Mahavir Park, Bahadurgarh, Haryana and accused Sunita handed over one key of the Santro Car and told that Santro car parked outside was used to dispose off the dead body by her and her son Naveen . Thereafter, accused Naveen took them to said Santro car having registration no. DL -4CR-2312.
The said car was found parked in the gali in front of the house of accused persons. On inspection of the car, he found blood marks and small particles of tat Bori (threads) inside the said car on the rear seat.
42. During the argument ld counsel for the accused persons submitted that owner of the said Santro Car has not been examined . He further submitted that there is nothing which could show that one Rajesh Rathi (PW11) had sold the said car bearing no. Dl-4CR-2312 to one Sanjay Mathur. He submitted that according to the story of the SC No. 04/14 State vs Naveen etc (convicted) (Page 41 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC prosecution that accused Naveen had taken the said Santro Car from Sanjay Mathur but the said Sanjay Mathur has not been examined by the prosecution. I am of the opinion that testimony of Sanjay Mathur could have been again one another piece of evidence against the accused persons. The said car was found parked in the gali in front of house of accused persons. Accused Sunita is shown to have handed over the keys of said car to Inspector Rajender Dubey( PW33) and accused Naveen himsellf had taken the police party to the said Santro car. Even if, it was parked in a public place, it will not make any difference. A Motor vehicle is generally identified generally by its registration number or make or model. Accused persons have failed to explain that how they came into possession the keys of the said car.
43. PW29 S.I Ashok Kumar and IO Inspector Rajender Dubey(PW33) have deposed that one seat cover was taken into possession vide seizure memo ExPW29/G and it was sent to FSL for examination. As per FSL report ExPW30/A, blood was detected on SC No. 04/14 State vs Naveen etc (convicted) (Page 42 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC said seat cover though it could not be opined further whether it was human blood or not. This also support the story of the prosecution that dead body was removed by accused persons from Bahadurgarh, Haryana and was thrown in the Badli Canal.
44. Further, PW6 Rajkumar is the shopkeeper from whom accused Sunita had purchased the empty sack(bori) of sugar. PW6 deposed that he is running a shop in the name and style of Upkar Provision Store at Railway Road, Bahadurgarh . On 19.8.2009, accused Sunita came to the his shop and had purchased one empty sack(Bori) of sugar alongwith some other articles for Rs 28/- . He further deposed that later on when the police officials visited his shop alongwith accused Sunita , he identified accused Sunita and narrated the fact of selling empty sugar sack(Bori) to her, to the police officials.
45. During cross examination, PW6 replied that he had seen accused Sunita when she came to his shop. To a court question, he replied that accused Sunita was brought to his shop by police officials on SC No. 04/14 State vs Naveen etc (convicted) (Page 43 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC 19.8.2009 and police asked him whether the Sunita was same lady who has purchased the empty sack of sugar from his shop to which he replied that she might have bought the same. PW6 is talking about purchasing of empty sack ( bori) on 19.8.2009 , identification of the accused Sunita and visit of Sunita alongwith police official to him which has gone unchanged during his cross examination.
46. The dead body is shown to have recovered in the morning of 20.8.2009. PW8 Jai Bhagwan deposed that he noticed one dead body lying on the bank of the canal in a jute bag. There was also blood on the jute bag. During his cross examination he replied that when he saw the jute bag, it was tied with a cloth. Photographs ExPW3/1 to ExPW3/6 , taken by constable Ravinder (PW3) , who was member of crime team on 20.8.2009, also supports the theory of prosecution that when the dead body was recovered it was in the ' Tat bori' . As per the FSL result ExPW30/A and ExPW30/B , the said 'Tat bori' ( gunny bag ) was having human blood of 'O' group , which is the blood group of deceased Anil SC No. 04/14 State vs Naveen etc (convicted) (Page 44 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC Kumar .
47. From the aforesaid testimonies, it stands established that dead body of the deceased was recovered from the bank of Badli Canal , behind DTC Bus depot, sector 18, Rohini. It has also come on the record that death took place in the intervening night of 18/19-8-2009 and at that time, the presence of the deceased have already been indicated at the house of accused persons situated at Bahadurgarh, Haryana. This shows that the dead body of Anil Kumar was put into a 'Tat bori' and was removed from the Bahadurgarh and it was thrown at Badli Canal by accused persons by using one Santro Car.
v) Recovery of gold ring belonging to the deceased Anil Kumar at the instance of the accused Sunita from her house.
48. PW1 Sudesh, wife of the deceased Anil Kumar (deceased) deposed that when her husband left the house, he was wearing black jeans pant and blue shirt. He was also wearing one gold ring in his hand . PW3 Constable Ravinder is the photographer who , on 20.8.2009 alongwith crime team headed by SC No. 04/14 State vs Naveen etc (convicted) (Page 45 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC S.I Puran Pant (PW34) reached at the place where the dead body of Anil Kumar (deceased) was recovered , is shown to have taken photographs ExPW3/1 to ExPW3/6 . These photographs indicate that deceased was wearing black jeans.
49. PW29 S.I Ashok and PW33 Inspector Rajender Dubey have deposed that accused Sunita got recovered one golden ring from the drawer of the bed and stated that the said ring belongs to deceased Anil Kumar. Said ring was kept in a cloth pullanda, sealed and seized vide seizure memo ExPW27/G. Even during their cross examination, testimonies of PW29 S.I Ashok and PW33 Inspector Rajender Dubey have gone unchanged. They have denied the suggestion that no such ring was recovered.
50. PW31 Ms. Smita Garg, the then ld ACMM , has conducted TIP proceedings pertaining to the said ring and said proceedings are ExPW31/B. TIP Proceedings ExPW31/B would reveal that during TIP proceedings, Sudesh (PW1) has identified the golden SC No. 04/14 State vs Naveen etc (convicted) (Page 46 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC ring correctly as belonging to her husband Anil Kumar (deceased) . Said gold ring was also produced before the court during examination of prosecution witnesses and same has been identified as ExP-1 by the witnesses including Sudesh (PW1) who is wife of the deceased Anil Kumar . Accordingly, it stands proved that a gold ring ExP-1 belonging to the deceased Anil Kumar was recovered at the instance of accused Sunita from her house.
vi) Recovery of motorcycle make Hero Honda bearing registration no. DL- 8S- NB-3850 belonging to the deceased Anil Kumar at the instance of accused Naveen.
51. Smt Sudesh (PW1) has deposed that deceased Anil Kumar had gone to Bawana Industrial Area on their motorcycle for some work. It is not in dispute that crime team reached at the place where the dead body of deceased Anil Kumar was recovered on 20.8.2009. PW34 Inspector Puran Pant , who was posted as Incharge Crime Team, deposed that from the right pocket of the pant of the dead body , one black colour purse was found which found containing driving license, R/C of motorcycle and SC No. 04/14 State vs Naveen etc (convicted) (Page 47 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC some visiting cards.
52. PW29 S.I Ashok , who is initial IO also deposed that on search , one black colour purse was found from the pocket of the pant of the dead body in which one Driving License in the name of Anil Kumar and one RC of motorcycle bearing registration number DL-8SNB-3850 in the name of Anil Kumar was found. On both the documents address was also mentioned. He sent Ct Jogender to the abovesaid house i.e H.NO A-21/55, Village Mohalla Badli Extension and thereafter, after some time constable Joginder returned back at the spot alongwith one public witness namely Vinod Kumar (PW7) who had identified the dead body . Aforesaid deposition has been corroborated by Vinod Kumar (PW7) while deposing that on 20.8.2009, some police came to his house and requested him to accompany him and he reached at Bawana Nehar, behind DTC Depot, Sector 18, Rohini where one dead body was lying on the bank of the canal and he identified the body of his younger brother Anil Kumar (deceased) . Dead body was handed over to him after postmortem vide SC No. 04/14 State vs Naveen etc (convicted) (Page 48 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC memo ExPW7/A.
53. Accordingly, it has come on record that Motorcycle bearing no. DL-8SNB-3850 belonged to deceased Anil Kumar and on 18.8.2009, he had left his house on the aforesaid motorcycle.
54. PW27 ASI Rajbir Singh during his examination in chief deposed that one motorcycle bearing registration no. DL-8S-NB-3850 belonging to deceased Anil Kumar was recovered from the Industrial Area, Badli at the instance of accused Naveen but during his cross examination he replied that accused Naveen had only shown the place of recovery of the motorcycle in his presence but denied that the motorcycle was recovered at the instance of accused Naveen. PW27 was re-examined by the ld APP for stated and during his re-examination he admitted that the motorcycle bearing registration no. DL-8SNB-3850 was recovered at the instance of accused Naveen from the industrial Area, Badli in his presence .
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55. S.I Ashok Kumar (PW29) and Inspector Rajender (PW33) have also deposed that accused Naveen got recovered one motorcycle Make Hero Honda, No. DL-8SNB-3850 , which belongs to deceased Anil Kumar, and the motorcycle was seized vide seizure memo ExPW29/J. The said motorcycle was produced before the court by Smt Sudesh (PW1) (superdar) and it was identified her as ExP-2.
vii) Recovery of blood stained mattresses from the house of accused persons.
56. PW29 S.I Ashok Kumar and PW33 Inspector Rajender deposed that on 25.8.2009, accused Sunita and Naveen led them to their rented house situated in Gali no.3, Mahavir Park, Bahadurgarh. In the said house, accused Sunita pointed towards the mattress lying on the bed in inner room and disclosed that after the murder of Anil, they put the dead body on the said mattress. Inspector Rajender(PW33) examined the said mattress , no blood was found visible and the accused Sunita told that she had washed the cover of the mattress. After SC No. 04/14 State vs Naveen etc (convicted) (Page 50 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC removed the cover of the mattress, Inspector Rajender (PW33) checked the mattress and observed blood marks on one side of the mattress towards the head side. Inspector Rajender (PW33) cut the portion of mattress, where he observed blood. The mattress cover and the portion of mattress cut by him were sealed and seized vide memo ExPW29/F.
57. The portion of mattress seized vide memo ExPW29/F was sent to FSL for examination. As per FSL examination result ExPW30/A, blood was detected on exhibit 11 i.e foam piece with two cloth pieces having dirty brown stains described as ' cut piece of internal mattress cover alongwith the mattress' . As per serological report ExPW30/B blood detected on exhibit '11' was human blood and was of 'O' group. This is also one of the incriminating evidence against the accused persons which stands established.
58. One of the argument advanced by ld defence counsel was that no public witnesses have been joined by the IO to the alleged recovery. He SC No. 04/14 State vs Naveen etc (convicted) (Page 51 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC further submitted that the present case is based upon circumstantial evidence and it is settled principal of criminal law that every evidence led, should be connected and linked with each other in such a way as they would form a complete chain. By referring the testimony of DW1 Karambir, he submitted that on the date of incident accused Naveen was with his father (DW1) at Badli.
59. In support of his argument ld counsel for the accused persons have relied upon A) Chanderpal Vs State : 1998 (2) JCC (Delhi)207 , B) Padala Veera Reddy vs State of AP: AIR 1990 SC 79 and C) Tanviben Pankaj Kumar Divetia vs State of Gujarat :
(1997) 7 SCC 156.
60. First of all take the testimony of DW1. It is not in dispute that DW1 Karambir is the husband of accused Sunita and father of accused Naveen, therefore it is is quite natural that he would depose only in favour of accused persons to save them. The story of prosecution that accused Sunita had left her husband(DW1) finds support from the fact that even SC No. 04/14 State vs Naveen etc (convicted) (Page 52 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC as per the case of accused persons DW1 was residing at Badli and his wife ( accused Sunita) was residing at Bahadurgarh. DW1 deposed that during the year 2007, he was so ill that he was shifted to his brother at Badli . That being so , it is difficult to believe that accused Sunita and her husband DW1 are having good relations. As in normal circumstances, if husband is so ill and the relations are cordial between husband and wife , then , wife is not expected to live separately at a distance place. Accordingly, the testimony of DW1 would not help the accused persons.
61. As far as non joining of public witnesses to the recovery of articles at the instance of accused persons is concerned, in this regard I may mention that it is generally seen that it is difficult and virtually impossible sometime to get and make public witnesses to participate and be part of a police team in such type of cases. This practical reality cannot be ignored and forgotten. A realistic and pragmatic approach has to be taken . The case of the prosecution cannot be rejected only on the ground SC No. 04/14 State vs Naveen etc (convicted) (Page 53 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC that independent witnesses have not been examined ( Dharampal Singh Vs State of Punjab , (2010) 9 SCC 608 & Ajmer Singh vs State of Haryana , (2010) 3 SCC 764).
62. At this juncture , I may mention that there is no doubt about the law as laid down by the authorities as relied upon by the ld defence counsel but same would not help the accused persons due to peculiarity of the facts of the instant case. In the present case, the circumstances from which the conclusion of guilt is sought to be drawn , have been fully established by the prosecution and those circumstances are consistent only with the hypothesis of the guilt of the accused persons. The chain of evidence is so complete that it can be easily held that accused Naveen committed the murder of Anil Kumar (deceased) and thereafter both the accused persons caused evidence of murder to disappear with intent to screen themselves from legal punishment by throwing the dead body of Anil Kumar (deceased) into Badli Canal.
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63. The next contention of the counsel for the accused persons was that there was no motive or any kind of premeditation on the part of the accused to carry out the murder of deceased Anil Kumar. In the background of the same it is to be seen whether the incident in question happened because accused Naveen was deprived of the power of self-control by grave and sudden provocation, given by deceased Anil or not. If answer is 'Yes' then at the most accused Naveen can be convicted under Section 304 IPC, as the case of the accused Naveen would fall under exception 1 to Section 300, culpable homicide not amounting to murder.
64. At this state itself, it is relevant to notice Section 300 of I.P.C.:
Section 300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-2ndly If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly If the person SC No. 04/14 State vs Naveen etc (convicted) (Page 55 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception I-When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:
First-That the provocations not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly-That the provocations not given by anything done in the lawful exercise of the right of private defence.
Explanation-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
65. The aforesaid Section provides five exceptions wherein the culpable homicide would not SC No. 04/14 State vs Naveen etc (convicted) (Page 56 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC amount to murder. Under Exception I, an injury resulting into death of the person would not be considered as murder when the offender has lost his self-control due to the grave and sudden provocation. It is also important to mention at this stage that the provision itself makes it clear by the Explanation provided, that what would constitute grave and sudden provocation, which would be enough to prevent the offence from amounting to murder, is a question of fact.
66. Provocation is an external stimulus which can result into to loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Here the provocation must be such as will upset not merely a hasty, hot tempered and hypersensitive person but also a person with calm nature and ordinary sense. What is sought by the law by creating the exception is that to take into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation. Thus, SC No. 04/14 State vs Naveen etc (convicted) (Page 57 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC the protection extended by the exception is to the normal person acting normally in the given situation.
67. As per the post mortem report proved on record as Ex. PW24/A, the deceased Anil Kumar suffered death due to cerebral damage ( head injury) as a result of blunt force impact and same were sufficient to cause death in ordinary course of nature. All injuries have shown to be ante mortem in nature and were consistent with striking of head against flat blunt surface repeatedly.
68. Coming to the moot question that whether the offence committed by the accused Naveen would only be culpable homicide amounting to murder under Section 300 IPC or would be culpable homicide not amounting to murder, under exception 1 of Section 300 IPC.
69. In view of above evidence appearing on record, it is to be seen whether the accused Naveen is entitled for benefit of Exception 1 to Section 300IPC. The necessary requirements of applicability SC No. 04/14 State vs Naveen etc (convicted) (Page 58 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC of exception I to Section 300 IPC and as to whether accused can claim the benefit of the same has been dealt in judgment of a Hon,ble Division Bench in the case of Suresh Singhal v. State (173) 2010 DLT 642, the relevant paras of the same are as under:
42. Exception I. In order to bring the case within Exception I, the following conditions must be complied with:
(i) The deceased must have given provocation to the accused;
(ii) The provocation must be grave;
(iii) The provocation must be sudden;
(iv) The offender, by reason of the said provocation, shall have been deprived of his power of self-control;
(v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and
vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.
70. Once the prosecution proves that the act committed by the accused Naveen had resulted in the death of a person, it is for the accused Naveen , who seeks to reduce the nature of the crime committed by him by claiming the benefit of the Exception to prove that the provocation received by him was grave as well as sudden, was such as might SC No. 04/14 State vs Naveen etc (convicted) (Page 59 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC reasonably be deemed sufficient to deprive him of self control and that the act of killing was committed whilst absence of control still existed and can reasonably be attributed to it. This proposition of law is well settled and was reiterated by Supreme Court in the case of Ram Kishan v. State of Rajasthan JT 2000 (4) SC 350.
71. The scope of the "doctrine of provocation"
was stated by Viscount Simon in Mancini v. Director of Public Prosecution (1942) A.C. 200 at p. 206: "it is not all provocation that will reduce the crime of murder to manslaughter. Provocation to have that result, must be such as temporarily deprive the person provoked of the power of self-control as result of which he commits the unlawful act which caused death. The test to be applicable is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini (1914) 3 K.B. 1116 so that an unusually excitable or pugnacious individual is not entitled to SC No. 04/14 State vs Naveen etc (convicted) (Page 60 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC rely on provocation which would not have led ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."
72. In K.M. Nanavati Vs. State of Maharashtra, AIR 1962 SC 605 , it was held
152. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden " provocation ? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society SC No. 04/14 State vs Naveen etc (convicted) (Page 61 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
153. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of " grave and sudden"
provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to s. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled SC No. 04/14 State vs Naveen etc (convicted) (Page 62 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
73. In State of Punjab Vs. Jagtar Singh and Ors. AIR 2011 SC 3028, Hon'ble Supreme Court after referring to facts of case held that, deceased had sneaked on night in the house of Accused persons and had sexual intercourse with sister of Accused persons which had been seen by Accused persons. Hence, in fit of rage, they killed both of them on the spot. Offence was committed due to Grave and sudden provocation and would fall under first explanation to Section 300 IPC and would amount to culpable homicide not amounting to murder.
74. In the case of Bonda Devesu v. State of A.P. [ : (1996) 7 SCC 115], the accused belonged to a tribal community and the deceased had behaved in an obscene way with wife of the accused. Having regard to the socio-economic background of the accused, the Court held it to be an offence punishable Under Section 304 Part I and not Section 302 Indian Penal Code.
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75. Again in the case of Devku Bhikha v.
State of Gujarat: (1996) 11 SCC 641] where the deceased, Head Master of a school, had asked the accused to make his wife available for immoral purposes in return to give job to the accused in the school as well as charged him of impotency and the accused killed the Head Master with repeated knife injuries, the Court accepted it as an offence punishable Under Section 304 Part I.
76. According to the prosecution , accused Naveen had seen deceased Anil with his mother (co- accused Sunita) in a compromising position . At that time, accused Naveen is stated to be aged around 23 years . From the aforesaid analysis of evidence and case law as discussed herein above, it becomes abundantly clear that the accused Naveen was driven to the crime which was not premeditated and the occasion had sprung up at the moment, gradually leading to the point when the accused Naveen lost his self-control, and due to grave and sudden provocation, inflicted the injuries on the deceased Anil Kumar. This court is of the opinion , therefore, SC No. 04/14 State vs Naveen etc (convicted) (Page 64 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC that the offence made out against the accused Naveen is Under Section 304 Part I and 201 Indian Penal Code and as against accused Sunita is u/s 201 IPC.
77. Accordingly, accused Naveen stands convicted for offences u/s 304 part 1 and 201 IPC and accused Sunita stands convicted for offence u/s 201 IPC.
Announced in the open (Rajesh Kumar Goel)
Court today i.e 3.9.2014 ASJ-5, North
Rohini Court
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IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 04/14
UID NO . : 02404R0305232009
FIR No :208/09
P. S : S.P Badli
u/s 304 Part 1/201/34
IPC
The State versus 1. Naveen s/o Karamvir Singh R/o Kale Ka Makan , Mahavir Park, Gali no.3, Bahadurgarh, Jhajjar Haryana.
2. Sunita w/o Karambir Singh R/o Kale Ka Makan , Mahavir Park, Gali no.3, Bahadurgarh, Jhajjar Haryana.
ORDER ON SENTENCE 06.9.2014 Present: Ms Raj Rani Kataria , ld Addl PP or the state.
Convict Naveen produced from JC.
Convict Sunita present on court bail.
Sh U.N Tripathi ld counsel for convict persons.
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Sh J.P Singh ld counsel for the complainant.
I have heard both the sides on the quantum of sentence. I have also perused the record.
It was argued by the ld counsel for the
convict persons that at the time when incident took place
convict Naveen was aged about 23 years old and is not
previously involved in any other case . He submitted that
being a young man he could not digest the things and lost
control due to grave and sudden provocation . There was no intention to commit the murder of deceased Anil Kumar on the part of convict Naveen. Both the convict persons tried their best to save the deceased as it is evident that deceased was taken to the doctor.
Ld counsel for the convict further submitted that convict Naveen is only bread earner in the family . One of his only brother who was mentally unfit , is missing for the last so many years . Father of convict is suffering from T.B . It was pointed out that convict Naveen is in JC for the last about 5 years and prayed to sentence him for the period already undergone.
In respect of convict Sunita, ld counsel urged
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to release her on probation of good conduct or for the period already undergone stating that she is not involved in the offence of murder. Ld counsel for the convict has placed reliance upon A) Devku Bhikha vs state of Gujarat : AIR 1995 SC 2771, B) Bagdi Ram vs State of Madhya Pradesh: AIR 2004 Sc 387, C) State of Punjab vs Jagtar Singh : AIR 2011 SC 3028 and D) Mohd Monir Alam vs State of Bihar: AIR 2010 SC 698 .
On the other hand, ld Addll PP for state and ld counsel for the complainant submitted that both the convicts do not deserve any leniency as their conduct was inhuman by throwing the dead body into the Badli Canal. It was submitted that deceased Anil Kumar was the only bread earner in his family and after his death, his wife and two minor children were forced to left under open sky without any care and protection . It was further argued that miseries suffered by the wife and children of deceased Anil Kumar cannot be ignored. Ld Addll PP argued that in the present case one life has been lost, therefore, maximum sentence available under the law may be awarded to the convict persons.
First of all , I may mention that each criminal case has its own facts and circumstances and the mode and manner in which the offence is shown to have been committed can not be same in all the cases. Therefore, the SC No. 04/14 State vs Naveen etc (convicted) (Page 68 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC case laws as relied upon by the ld counsel for the convict would not come into picture as the facts of the present case are distinguishable.
The conduct of the convicts after the commission of crime is of prime consideration while sentencing them . In the present case, it has come on record that after committing the murder of deceased Anil Kumar, both the convicts threw his dead body into the Badli Canal and family members of the deceased were kept uninformed and in dark.
In a case State of M.P Vs Najab Khan & Ors. , 2014 II AD (S.C) 194, It was held that " In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime , the conduct of the accused, the nature of weapon used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate SC No. 04/14 State vs Naveen etc (convicted) (Page 69 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC punishment" .
After considering the entire facts and circumstances of the present case and the discussion made herein above, the convict Naveen is sentenced as follows:
1. u/s 304 Part I IPC : R.I for 10 years alongwith fine of Rs 5000/- in default of payment of fine six months S.I .
2. u/s 201 IPC : R.I for 3 years alongwith fine of Rs 2000/- in default of payment of fine 2 months S.I .
Both the sentences shall run concurrently. Fine not paid by convict Naveen Convict Sunita is sentenced R.I for three years alongwith fine of Rs 2000/- for offence u/s 201 IPC . In default of payment of fine, she shall undergo S.I for two months.
Fine paid.
Benefit of section 428 CrPC shall be given to both the convicts for the period already undergone by them during the trial, as per rules.
Keeping in view the facts and circumstances of the case , a recommendation is made u/s 357 A CrPC to North District Service Legal Authority to award appropriate compensation to the legal heirs of deceased Anil Kumar under the Delhi Victim Compensation Scheme 2011 or under any such scheme applicable.
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Both the convict persons have been informed that they have a right to prefer an appeal against this judgment . They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37,Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict persons free of cost.
Copy of this order and judgment be sent to Ld Secretary, North District Legal Service Authority , Rohini Court for necessary compliance.
At this stage, ld counsel for the convict Sunita moved an application 389 CrPC stating that convict Sunita intends to present an appeal against the judgment and order on sentence of this court.
During the trial , convict Sunita was on bail. There is nothing on record which could show that convict avoided the trial or was absconding. She has been sentenced R.I 3 years alongwith fine of Rs 2000/-. Fine has already been paid.
In these circumstance, convict Sunita is admitted to bail till 7.10.2014 ( as 5-6.10.2014 happens to be SC No. 04/14 State vs Naveen etc (convicted) (Page 71 of 72 ) FIR No.208/09 D.O.D 3.09.2014 P.S S.P Badli u/s 302/201/34 IPC holiday) u/s 389 CrPC on furnishing personal bond in the sum of Rs 20,000/- with one surety in the like amount .
Bail bond furnished . Accepted till 7.10.2014.
File be consigned to record room after
necessary compliance.
( Rajesh Kumar Goel)
ASJ-5, North / 6.9.2014
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