Delhi District Court
State vs . 1. Surender @ Kalwa on 3 September, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSSION
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 27/2013
Unique Case ID No.: 02404R6288402004
State Vs. 1. Surender @ Kalwa
S/o Sh. Rattan Lal
R/o Village Salempura Colony,
District Bulandshehar,
Post Kakore, U.P.
(Convicted)
2. Vijay Pal
S/o Sh. Nepal Singh
R/o Village Pachota, Post Sikhera,
District Bulandshehar, U.P.
(Convicted)
3. Virender Kumar @ Mintu
S/o Sh. Brij Pal
R/o Village Sara, District Ghaziabad,
U.P.
(Convicted)
FIR No.: 119/2004
Police Station: Rohini
Under Section: 302/394/392/397/411/34 IPC
Date of committal to Session Court: 24.5.2004
Date on which orders were reserved: 20.7.2013
Date on which judgment pronounced:3.8.2013
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 1
JUDGMENT:
(1) As per allegations on 5.2.2004 at H19/131, Sector7, Rohini Delhi in afternoon the accused Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu in furtherance of their common intention committed the murder of Smt. Mridula Kishore, Rajesh Kishore and Master Ankit. It has also been alleged that all the accused committed the robbery jewellery and cash worth Rs.1,00,000/ belonging to the victims by using deadly weapons. Further, it is alleged that all the accused had retained the jewellery and cash belonging to the deceased Mridula Kishore and Rajesh Kishore knowingly that the same was stolen property. CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 5.2.2004 DD No. 21A was received in Police Station Rohini pursuant to which Inspector Ram Chander, SI Daya Nand and HC Rajbir Singh reached House No. H19/131, Sector7, Rohini, Delhi where he found ASI Virender Singh along with staff present there. Police inspected the spot and found one dead body of young boy lying on the bed in the right side of the room at ground floor of the said house and some public persons were also present there at that time. The name of the deceased boy was revealed as Rajesh Kishore S/o Jugal Kishore and a blood stained kitchen knife was also lying near the dead body of the deceased Rajesh and found the stab injury mark on the neck of the deceased. On inquiry from public persons police came to know that one Mridula Kishore and one Ankit Kumar had already been removed to BSA Hospital, Rohini in injured condition after St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 2 which ASI Virender Singh reached BSA Hospital to inquire about the injured. A large amount of blood was found scattered on the bed lying in the second room of the house and in the third room of the house. The lock of the steel almirah broken inside the said room was noticed and two empty jewellery boxes were lying on the bed. Crime Team was called to the spot who inspected the place of occurrence and photographer took photographs of the spot. On request of ASI Virender Singh from BSA Hospital, photographer of Crime Team reached BSA Hospital where he also took photographs of two dead bodies. In the meantime ASI Virender Singh reached the spot from BSA Hospital and handed over to the Investigating Officer two MLCs of Mridula Kishore and Ankit Kumar whom the doctor had declared as 'brought dead'. A rukka was then prepared on DD No. 11A on the basis of which the present case was registered. Thereafter, the dead bodies of all the three deceased were shifted to the mortuary of SGM Hospital, Mangol Puri from BSA Hospital. Various exhibits were lifted from the spot including the kitchen knife. On 6.2.2004 postmortem examination on the dead bodies of the deceased were conducted. On 7.2.2004 the Investigating Officer again interrogated the relatives of the deceased and during interrogation, he recorded statement of Jugal Kishore husband of deceased Mridula Kishore who informed him that he had called his wife on telephone at about 12:001:00 PM on 5.2.2004 from Mathura where he (Jugal Kishrore) was working in Indian Oil, Mathura Refinery and his deceased St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 3 wife had told him on telephone that Surender @ Kalwa along with his two cousin brothers namely Virender and Vijay Pal were present at their house at that time and she was cooking meal for them. Jugal Kishore also gave details of the robbed articles in his statement including cash and also informed that accused Surender belonged to the village of his deceased wife i.e. village Saleempura, Police Station Kakor, Distt. Bulandshahar, U.P. Thereafter efforts were made to trace out the accused persons from village Pachota, District Bullandshahar; village Sara, District Ghaziabad, U.P. and also at Delhi i.e. village Khera Kalan, New Mangla Puri, Mangol Puri and village Dhirpur. The police thereafter started checking the buses at GT Karnal byepass Delhi. During checking all the three accused persons were apprehended under suspicion and when they were asked as to where they were going they informed that they were going to village Khera Kalan. The accused were made to alight from the bus and were thoroughly interrogated and they disclosed their names and addresses.
The accused Surender @ Kalwa was holding a black colour rexine bag in his hand which was opened and checked which bag was containing one credit card of ICICI Bank in the name of Jugal Kishore, cash amount of Rs.10,050/, two screw drivers having green colour plastic handles and 85 coins of one rupee each lying in a small cloth bag was also found in the said rexine bag which were seized. The accused Vijay Pal took out one earring, one hexagonal shape locket of golden colour having OM engraved on it and produced before the police stating the said articles St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 4 were also robbed in the incident of the present case after which the said articles were sealed. The accused Virender @ Mintu produced one pair of golden colour ear tops from his pant pocket and produced before him which tops were having design of four leaves engraved on it with red and green colour and disclosed that these articles were stated to be part of the said robbed articles on which he sealed the said tops. Thereafter the accused persons were arrested and their disclosure statements were recorded.
(3) On 10.2.2004 the a police party comprising of SHO Inspector Krishan Kumar Sharma, Addl. SHO Inspector Ram Chander, SI Daya Nand and other police staff had gone to the house of accused Virender at Village Sara, Distt. Ghaziabad, U.P. where the accused Virender led the police party to his house where one iron box was lying in the room and from that box the accused took out some jewelery items i.e. two bangles, two kangan, two ear tops, two bangles of different designs, one chain and the clothes. He has proved that the Inspector converted the recovered clothes in a separate parcel and jewellery items in another parcels after which both the parcels were taken into police possession. Thereafter accused Surender took the police party to his house in village Salempura, Distt. Bullandshahar, U.P. from where the accused Surender got recovered one necklace and clothes after taking them out from a box, which necklace and clothes were sealed in separate parcels and were taken into police possession. Thereafter the police went to the village Pachota, St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 5 Distt. Bulandshahar of accused Vijay Pal where the accused took out jewellery i.e. two kangan, two churia (bangles), one small chain, one mangalsutra, one ear jhumki and one bali and clothes from the iron box lying in the chhappar of his house which were taken in to possession. After completion of investigations charge sheet was filed against the accused Surender @ Kalwa, Vijay Pal and Virender. CHARGES:
(4) Charges for the offences under Section 302/394/392/397/34 IPC were settled against all the three accused persons to which they pleaded not guilty and claimed trial. A separate charge for the offence under Section 411 IPC was also settled against all the three accused persons to which they pleaded not guilty to the charge and claimed trial. (5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name Details of witness
No.
1. PW 1 Jugal Kishore Public witness - husband of deceased
Mridula Kishore, father of deceased
Rajesh Kishore and grandfather of
deceased Ankit
2. PW 2 Ct. Chunny lal Police witness / Crime Team Photographer
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 6
3. PW 3 Dr. Kuldeep Singh Witness of medical record who has proved
the MLC of Mridula Kishore
4. PW4 HC Randhir Singh Police witness / Duty Officer
5. PW 5 Ct. Dinesh Kumar Police witness / Special Messenger
6. PW 6 SI Manohar Lal Police witness / Draftsman
7. PW 7 Dr. Ravi Witness of medical record who has proved
the MLC of Ankit
8. PW 8 Mangender Kishore Public witness - son of deceased Mridula
Kishore, brother of deceased Rajesh
Kishore and father of deceased Ankit
9. PW 9 Kaushal Kishore Public witness - son of deceased Mridula
Kishore, brother of deceased Rajesh
Kishore and uncle of deceased Ankit
10. PW 10 Ct. Priya Vart Police witness who had reached the spot
on receiving the call
11. PW 11 Dr. V K Jha Autopsy Surgeon
12. PW 12 ASI Madan Gautam Police witness / Finger Print Expert
13. PW 13 ASI Virender Singh Police witness who had reached the spot
on receiving the call
14. PW 14 Insp Krishan Kumar Police witness / the then SHO of Police
Station Rohini
15. PW 15 HC Rajbir Singh Police witness who joined the
investigations
16. PW 16 Ct. Balbir Singh Police witness / Dog Handler
17. PW17 Sh. Manoj Kumar Official witness / the then Ld. MM
Nagpal
18. PW 18 Balibir Singh Official witness from BSNL Mathura
19. PW 19 Insp. Rajbir Malik Investigating Officer
20. PW 20 Inspector Ram Chander Investigating Officer
21. PW 21 Sh. M.S. Jatav Controlling Officer / Boss of Jugal
Kishore
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 7
List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1. Ex.PW1/A Dead body identification Statement in Jugal Kishore
respect of deceased Mridula
2. ExPW1/B Dead Body identification Statement in
respect of deceased Rajesh
3. ExPW1/C Dead Body identification Statement in
respect of deceased Ankit
4. ExPW1/D TIP of Jewellery ornament
5. ExPW1/E TIP Report
6. ExPW2/A Negatives Ct. Chuuny Lal
7. ExPW2/A1 Separate Negative
8. Ex.PW2/B1 to Photographs
B15
9. ExPW3/A MLC of Mridula Dr. Kuldeep Singh
10. ExPW4/A Copy of FIR HC Randhir Singh
11. ExPW4/B Copy of DD No.21
12. ExPW6/A Site Plan SI Manohar Lal
13. ExPW7/A MLC of Ankit Dr. Ravi
14. ExPW8/A Statement of Magender Kishore under Magender Kishore
Section 161 Cr.P.C.
15. ExPW8/B Seizure memo of blood stained bed
sheet
16. ExPW8/C Seizure memo of blood stained
kitchen knife
17. ExPW8/D Sketch of Knife
18. ExPW8/E Seizure memo of blood stained bed
sheet on which Mridula was lying
19. ExPW8/F Seizure memo of blood stained earth
20. ExPW8/G Seizure memo of lid of broken locker
of the Almirah
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 8
21. ExPW10/A Seizure memo of three sealed parcel Ct. Priya Vart
22. ExPW11/A Postmortem report in respect of Dr. V K Jha
deceased Mridula Kishore
23. ExPW11/B Postmortem report in respect of
deceased Rajesh Kishore
24. ExPW11/C Postmortem report in respect of
deceased Ankit Kumar
25. ExPW12/A Report regarding finger print lifted ASI Madan Gautam
from spot
26. ExPW13/A Seizure memo of ligature material ASI Virender Singh
27. ExPW14/A Seizure memo of Jewellery items got Insp. Krishan
recovered by the accused Virender Kumar
28. ExPW14/B Seizure memo of Jewellery items got
recovered by the accused Surender
29. ExPW14/C Seizure memo of jewellery items got
recovered by the accused Vijay Pal
30. ExPW15/A Disclosure statement of Accused HC Rajbhir Singh
Surender
31. ExPW15/B Disclosure statement of accused
Virender
32. ExPW15/C Disclosure statement of accused
VijayPal
33. ExPW17/A TIP of Case Property Sh. Manoj Kumar
Nagpal
34. ExPW18/A Letter of the Investigating Officer Balbir Singh
35. ExPW18/B Copy of Call Details
36. ExPW19/A Written request regarding Inspector Ranbir
Malik
37. ExPW19/B Copy of DD No.3A
38. ExPW19/C Copy of DD No.26A
39. ExPW19/D Finger Print Report
40. ExPW19/E Forwarding Letter
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 9
41. ExPW19/F Attested copy of report dated
15.12.2004
42. ExPW19/G Attested Copy of report dated
11/01/05
43. ExPW19/H Forwarding letter by Director FSL
44. ExPW19/I Scientific Report dated 12/07/04
45. ExPW19/J Forwarding letter
46. Ex.PW20/A Rukka Inspector Ram
Chander
47. Ex.PW20/B Crime Team Report
48. Ex.PW20/C Rough site plan of the spot of incident
49. Ex.PW20/D Statement of Kiran Babu
50. Ex.PW20/E Inquest papers pertaining to Mridula
Kishore
51. Ex.PW20/F Brief facts pertaining to deceased
Mridula Kishore
52. Ex.PW20/G Request for postmortem of Mridula
Kishore
53. Ex.PW20/H Inquest papers pertaining to Rajesh
Kishore
54. Ex.PW20/J Statement of Kiran Babu
55. Ex.PW20/K Brief facts pertaining to deceased
Rajesh
56. Ex.PW20/L Request for postmortem of deceased
Rajesh
57. Ex.PW20/M Inquest proceedings pertaining to
deceased Ankit Kumar
58. Ex.PW20/N Statement of Kiran Babu
59. Ex.PW20/O Brief facts pertaining to deceased
Ankit
60. Ex.PW20/P Request for postmortem of deceased
Ankit
61. Ex.PW20/Q Seizure memo of the articles
recovered from the possession of
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 10
accused Surender @ Kalwa at the time
of his arrest
62. Ex.PW20/R Seizure memo of the articles
recovered from the possession of
accused Vijay Pal at the time of his
arrest
63. Ex.PW20/S Seizure memo of the articles
recovered from the possession of
accused Virender @ Mintoo at the
time of his arrest
64. Ex.PW20/S1 to Arrest memos of all the three accused PW20/S3
65. Ex.PW20/T1 to Personal search memos of all the three PW20/T3 accused
66. Ex.PW20/U Application seeking three days police custody remand of the accused
67. Ex.PW21/1 DD No. 6A
68. Ex.PW21/2 DD No. 13A
69. Ex.PW20/A Rukka
70. Ex.PW20/B Crime Team Report
71. Ex.PW20/C Rough site plan of the spot of incident EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty One witnesses as under:
Public witnesses:
(7) PW1 Jugal Kishore is the husband of the deceased of Mridula Kishore and has deposed that on 5.2.2004 he was working in Indian Oil Corporation Mathura as Operation Officer and used to visit St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 11 Delhi at his house once in a week. According to him, at that time his wife Mridula, sons Magender Kishore, Rajesh Kishore and Kaushal Kirshore and grandson Ankit were residing at his house no.131/H19, Sector7, Rohini. He has also deposed that his grandson Ankit was the son of Magender Kishore and the wife of Magender Kishore used to reside at Shivaji Enclave Extension at house no. 165C since there were differences in between Magender Kishore and his wife because of which the wife of Magender Kishore was residing at Shivaji Enclave. He has further deposed that Magender Kishore had two sons, the elder Ankit used to reside at his house and the younger son Vaibhav used to reside with his mother. According to the witness, on 5.2.2004 at about 12:00 noon (as clarified by the witness later on), he telephoned to his wife from Mathura and talked to his wife on phone who told him that Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu who were from her village had come to the house and she was cooking meal. He has explained that Surender @ Kalwa belongs to the village of his inlaws, whereas Vijay Pal and Vijender were relatives of Surender @ Kalwa. He has further deposed that his wife further told him that she would talk to him on telephone later on as the meals which she was cooking was burning. The witness has testified that thereafter at about 2:30 PM, he again telephoned but no one responded after which he came to his house and slept at his house at Mathura. According to him, in the meantime his emergency duty was fixed from 10:00 PM to 6:00 AM and accordingly he went on to St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 12 emergency duty at 10:00 PM and at about 10:45 PM his boss telephoned to him and told him that some mishappening had taken place at his house in Delhi. The witness has proved that he boarded a bus for Delhi and reached Delhi at about 3:30 AM and found all the relatives present at his house. He has testified that his relatives narrated the incident within half an hour by saying that someone had murdered his wife, son Rajesh Kishore and grandson Ankit and on hearing the same he became unconscious and was consoled by his relatives. According to the witness, he found the locker of almirah, kept in a bed room, broken and found the empty jewellery boxes lying on bed and he thereafter checked the almirah wherein he had kept around Rs.20,000/ (as clarified by the witness later on) in cash and some jewellery consisting four golden kangans, one bangle, one necklace, one golden chain, four pairs of tops, one Om in gold in a black thread and four bangles of silver having golden polish, one silver chain polished in gold, one artificial mangalsutra and one kara of brass ladies but found nothing and all these items were missing. The witness has also deposed that police met him and inquired and his statement was recorded on 7.2.2004. He has further deposed that he and his brother identified the dead bodies of his wife Mridula, son Rajesh Kishore and grandson Ankit at Sanjay Gandhi Hospital. He has proved the identification statement of dead body of deceased Mridula which is Ex.PW1/A; identification statement of dead body of Rajesh Kishore which is Ex.PW1/B and the identification statement of dead body of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 13 Ankit which is Ex.PW1/C. He has testified that he had obtained the dead bodies of his wife, son and grand son on 6.2.2004 and cremated the same.
(8) The witness has correctly identified all the three accused persons in the Court and has also identified the case property i.e. two gold kangans which are Ex.P1; two silver bangles polished in gold which are Ex.PW2; one artificial mangalsutra which is Ex.P3; one bali which is Ex.P4; one gold jhumka which is Ex.P5; one golden necklace to be of his deceased wife which is Ex.P6; golden chain which is Ex.P7; two golden ear tops which are Ex.P8; two gold kangans which are Ex.P9; one gold bangle which is Ex.P10; two single bangles of silver duly golden polished which are Ex.P11; one brass kara which is Ex.P12 to be his own; two golden ear tops which are Ex.P13; golden Om which is Ex.P14 and gold bali which is Ex.P15.
(9) Since the witness was not giving the complete details as he had earlier given to the police, he was permitted to be crossexamined by the Ld. Addl. PP for the State wherein he admitted that he had told the police in his statement dated 7.2.2004 that Surender @ Kalwa and Vijay Pal had stayed during the night of 2728.1.2004 at his house at Delhi. He has also admitted that the Investigating Officer recorded his statement on 23.3.2004 (as clarified by the witness later on) to the effect that he attended the court of Sh. Manoj Kumar Nagpal, MM on 23.2.2004, where he identified his jewellery items out of mixed jewellery items. He has St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 14 proved that the application for conducting TIP of the case property which is Ex.PW1/D bear his signatures at point X and the TIP proceeding is Ex.PW1/E. (10) In his cross examination by the Ld. Defence Counsels the witness has deposed initially that he was appointed at Delhi with IOC and his job was transferable. According to the witness, before joining at Mathura on 2.7.2002, he was working at Delhi. He has testified that IOC had not provided any official telephone line at his residence at Mathura nor he had any personal land line telephone at his residence (at Mathura) and has explained that he was using a mobile phone no. 9891230988. He has further stated that there was a telephone facility at the place of his working by way of intercom. According to him, sometimes he used to come to Delhi on weekly off on Sundays by bus and sometimes by train.
He has further deposed that on 5.2.2004, his office timings were 6 AM to 2 PM. The witness has also deposed that he used to telephone at Rohini, Delhi from Mathura from an STD Booth. He has explained that his family members never used to contact him by telephone but he was in contact with them. He has denied the suggestion that on 5.2.2004, he did not make any telephonic call from Mathura to Delhi. He has also deposed that on 5.2.2004 between 10:00 to 10:30 PM, he was present in his office and has voluntarily explained that he was on emergency duty in his office from 10:00 PM to 6:00 AM of the next morning i.e. 6.2.2004. The witness has testified that there were two bed rooms and one drawing room St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 15 in his house at Rohini and the households articles were kept in the bed room. According to the witness, on 5.2.2004 he was on duty in Section O&MS1 and Sh. M.S. Jatav was his boss on 5.2.2004. He has also deposed that his boss did not tell him about the telephone call from Delhi and has voluntarily explained that his boss did not talk to him by telephonic call. The witness has further explained that his boss had taken the phone number of his friend who was residing at Delhi with him. He has testified that after 2:00 PM after finishing his duties, he reached his house at Mathura and before reaching house he got down near the STD Booth, which was on the way at about 2:30 PM for making a telephone call to Delhi at his residence. According to him, he had not given any information to his colleagues by calling up at Delhi and has explained that he was not told about the murders. He has also deposed that his boss had not disclosed about the murders at his house at Delhi and had only advised him to rush to Delhi. According to the witness on 5.2.2004, he had tried to contact at his house at Delhi on telephone at 7:007:30 PM but there were no response from his house. He has denied the suggestion that on 5.2.2004 he did not make any telephonic call at Delhi and has explained that at about 12:00 noon, he had spoken to his wife Mridula Kishore on telephone at his Delhi house.
(11) The witness has further deposed that on 5.2.2004 he left his house at 10:45 PM and reached Delhi on the next day at about 3:30 AM where he found his relatives and the police. He has also deposed that St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 16 after hearing the incident, he was not totally unconscious and became stunned (HakkaBakka). He has also deposed that when he reached his house at Rohini the dead bodies were not there. According to the witness, it was his wife who used to keep the keys of the house in his absence. He has admitted that he had stated to the police in his statement that accused Surender @ Kalwa being a resident of their inlaw's village had also stayed in their house on the intervening night of 2728.1.2004. He has further deposed that on 5.2.2004 Surender @ Kalwa was also present in his house as informed to him by his wife through the telephonic conversation. The witness has also deposed that none of his relatives were present when he checked the almirah. He has further testified that when he reached his home from Mathura he did not see any dead bodies and it was his brother who took him to SGM Hospital for identification of the dead bodies. According to the witness, he had seen the accused Virender Kumar only once at his inlaw's village at Saleempura colony about two and half years prior to the incident. He has admitted that in his statement to the police dated 7.2.2004, he did not say that when he spoke to his wife on telephone she told him that she was cooking meal. He has further explained that accused Surender @ Kalwa and Vijay Pal had stayed in their house on the night 2728.1.2004 since he was also present at his house at Rohini on that day. According to the witness, he knew these two accused namely Surender @ Kalwa and Vijay Pal prior to 27.1.2004 and also knew their family members. He has admitted that he St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 17 had stated to the police that only his wife Mridula knew the details of missing articles and as regards the remaining missing articles. He has also deposed that police recorded his statement after 7.2.2004 and his statement dated 23.3.2004 was recorded at Police Station Rohini in the morning time. He has denied the suggest that on 5.2.2004 accused Surender @ Kalwa and Vijay did not visit his house at all or that the accused Vijay Pal remained at village Pachota, District Bulandshehar, U.P. on 5.2.2004.
(12) PW8 Magender Kishore is the father of the deceased Ankit, brother of deceased Rajesh and son of deceased Mridula. He has deposed that in the month of January 2004, he had gone to Azad Pur for appearing in a interview at about 8:00 AM and at about 7:00 PM he returned to his house and saw that his brother Rajesh Kishore lying on the bed and and his mother was sitting on the double bed in the adjoining room and in the same adjoining room his son was lying on the floor and one cover of the locker and one bag were also lying on the floor in the said room.
(13) The witness was found resiling from his earlier statement given to the police, therefore, he was examined by the Ld. Addl. PP for the State wherein he has deposed that police made enquires from him and he made a statement to them. He has denied that on 5th February of the year 2004, he had gone to appear in an interview. However, when confronted with his statement Ex.PW8/A the above fact found so St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 18 recorded. He has admitted that when he returned from Azad pur to his house, he found a big crowd present at the house; that his younger brother Kaushal Kishore was crying at a loud voice; that his younger brother Rajesh was lying on the bed in a pool of blood outside the room and one blood stained kitchen knife was also lying near him; that in the inner room his mother Mridula Kishore was lying on a double bed and one string was tied around her neck and there were injuries on her neck and there was blood on the bed; that inside the room his son Ankit was lying in a pool of blood; that his brother Kaushal Kishore took his mother Mridula Kishore to BSA Hospital and he himself took his son in a PCR van to BSA Hospital, where both were declared brought dead by the doctors. The witness has also admitted that police seized the blood stained bed sheet duly sealed with the seal of RCS vide seizure memo Ex.PW8/B; that blood stained kitchen knife duly sealed with the seal of RCS was seized vide seizure memo Ex.PW8/C; that police prepared the sketch of knife which is Ex.PW8/D prior to the seizing of the same; that police seized the blood stained bed sheet on which his brother was lying duly sealed with the seal of RCS vide seizure memo Ex.PW8/E. The witness has further proved that the police seized blood stained earth and earth control sealed with the seals of RCS vide seizure memo Ex.PW8/F and also seized the lid of broken locker of the Almirah sealed with the seal of RCS vide seizure memo Ex.PW8/G. The witness has correctly St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 19 identified the kitchen knife which is Ex.P16.
(14) In his cross examination by the Ld. Defence Counsels the witness has deposed that they were living at the above mentioned address for about three years prior to the date of the incident and apart from himself, his wife, his daughter, his brother, two sons of his brother, his brother's wife and his father were then living. According to the witness, police recorded his statement on the night of 5th in his residence when he was alone at his house.
(15) PW9 Kaushal Kishore is the brother of deceased Rajesh Kishore who has deposed that on 5.2.2004 at about 9:30 AM, he had gone to Computer Center at Shalimar Bagh and at about 6:45 PM, he returned to his house. According to the witness, he found that his brother Rajesh Kishore was lying in a pool of blood on a bed in drawing room and his throat was slit and one blood stained kitchen was also lying near. He has testified that he raised an alarm and then entered adjoining room where he saw that his mother was lying in a pool of blood on the bed and around her neck one string had been tied and there was blood on the floor. The witness has also deposed that thereafter, he went into the same adjoining room where he saw that his nephew Ankit was lying in a pool of blood on the floor and there were injury marks on his neck. He has further deposed that he came out of his house while crying and in the meanwhile his elder brother Mangender Kishore also came to the house. He has testified that thinking that his mother was alive, he took her to BSA St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 20 Hospital and thereafter, his nephew Ankit was also brought to the same hospital by PCR van. The witness has also deposed that after medical examination his mother and his nephew were declared brought dead after which they returned to their house. He has proved that the police seized one blood stained bed sheet sealed with the seal of RCS vide seizure memo Ex.PW8/B and also prepared a sketch of knife Ex.PW8/D and then prepared a parcel of the knife which was seized vide seizure memo Ex.PW8/C. According to him, the police also seized the blood stained bed sheet from the bed where his mother was lying, blood stained earth and earth control from the spot and the lid of the locker of the almirah vide seizure memos Ex.PW8/E to Ex.PW8/G respectively. He has further deposed that on 24.2.2004 the Investigating Officer along with Draftsman came to their house who inspected the spot. (16) The witness has correctly identified the kitchen knife which is Ex.P16 to be the same which was lying near the bed where his brother was lying and the bed sheets which are Ex.P17 and Ex.P18, which were seized by the police from the place of occurrence in his presence. (17) In his cross examination by the Ld. Defence Counsels the witness has deposed that his computer course timing was from 10:30 AM to 12:30 PM and he reached home at around 6:45 PM on the day of occurrence. According to the witness, it took about half an hour to reach home from the Center. He has further deposed that in between he remained at the computer center. The witness has also deposed that the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 21 doors of the house were opened when he reached there and the lights were also on. He has testified that he did not call the police and is not aware as to who had called the police. According to him, on seeing the scene at the house, he was shell shocked and hence rushed out of the house crying. He does not recollect how the sketch of the knife was prepared by the police i.e. whether by putting it on the papers or otherwise. He has further deposed that his father had reached the house at about 12:00 in the night on the day of incident. He has denied the suggest that the draftsman had not inspected the spot 24.2.2004. (18) PW21 Sh. M. S. Jatav has deposed that on 5.2.2004, he was posted at Mathura Refinery Marketing Division as Refinery Coordinator and Jugal Kishroe was working under him at Mathura Refinery. According to the witness on the said day, Jugal Kishore was on duty and he did A plus B shift and C shift extra duty. He has explained that in A shift, the duty hours are from 6:00 AM to 2:00 PM and in B shift, the duty hours are 2:00 PM to 10:00 PM and in C shift, the duty hours are 10:00 PM to 6:00 AM next day. He has further deposed that the duties performed by the said employee in A and B shift at Bitmen Drum filling plant (BDFP Sector) and in C shift, he did his emergency duty in OMS1 sector (Oil movement and storage). The witness has testified that on 5.2.2004 Jugal Kishore took one hour leave from him at about 11:30 AM during A shift for looking after his friend, who was sick and was residing in his room no. 5/22, at Township area of Mathura Refinery and Jugal St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 22 Kishore came back after about one hour after which he (Jugal Kishore) again visited his said friend to change his shirt which became dirty during the filling process at about 2:00 PM or 2:30 PM and came back after about one hour during B shift. He has testified that after working in B shift, Jugal Kishore left the duty 23 hours before 10:00 PM and he orally directed Jugal Kishore to perform emergency duty in C shift from 10:00 PM to 6:00 AM next morning. According to him, at about 10:45 PM, he informed Jugal Kishore through intercom at Mathura Refinery, OMS1 sector and asked Jugal Kishore to reach his hone at Delhi as somebody was seriously sick in the family and he should rush immediately to Delhi. He has further deposed that thereafter he went to Mathura Refinery gate to pick up Jugal Kishore and after getting him boarded in the bus for Delhi he came back to his home. According to him, next day he along with twothree other officers of Mathura Refinery came to Delhi and visited the house of Jugal Kishore. According to him, as per their record, the duty done by Jugal Kishore, in C shift on 5.2.2004 was not mentioned/ planned as per roaster as it was an emergency duty and the official as per roaster fell sick on that day.
(19) In his cross examination by the Ld. Defence Counsel the witness has deposed that police had not recorded his statement nor he had given any representation to any police official. He has testified that in May 2002, many persons were working under him at Mathura Refinery but he does not remember the names of all those persons. According to St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 23 him, in the year 2004, he was residing at Bunglow no. 3/65, Mathura Township which was at a distance of around twothree kms. from the Mathura Refinery. He has also deposed that Jugal Kishore used to reside at 5/22, at hostel in Mathura Township. He has explained that for leaving the office for one hour at 11:30 AM, Jugal Kishore did not give any application to that effect in writing but he verbally obtained permission and after one hour Jugal Kishore returned to the office and informed him regarding his presence in the office. He has also deposed that on 5.2.2004 he was present in office in the said refinery since 8:00 AM to 5:00 PM. According to him, he was watching Zee News on that day and it was around 10:00 or 10:30 PM when the news regarding this incident was being flashed and the name plate of Jugal Kishore on his house at Delhi was depicted in the said news clips. He has further deposed that in the news, the news reader was not taking name of Jugal Kishore from his mouth but was uttering that he was an officer of Mathura Oil Refinery and displaying his name plate at the said house. He has testified that on the following day, when he reached at Delhi at the house of Jugal Kishore, he found Jugal Kishore and his some relatives present at his house. He has explained that he remained at the house of Jugal Kishore upto evening. He has also deposed that when he reached to the house of Jugal Kishore, police officials were already present there and investigating the matter. He has denied the suggestion that he had not granted the short leaves on 5.2.2004 to Jugal Kishore.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 24 Witnesses of medical record:
(20) PW3 Dr. Kuldeep Singh CMO of Dr. Baba Saheb Ambedkar Hospital has proved that on 5.2.2004 at about 8:15 PM, Mridula Kishore was brought by Ct. Baljeet in unconscious condition and on examination, the patient was declared brought dead. He has further deposed that there was ligature present (nara) around her neck which was blood stained. He has proved that the ligature material was cut about 1 inch from the knot and was sealed in any empty glove polythene bag and prepared the MLC of Mridula Kishore which is Ex.PW3/A after which the MLC, dead body and the sealed ligature material were handed over to the Investigating Officer and the dead body was referred to SGM Hospital, Mangol Puri for further management and opinion by the forensic expert.
(21) In his cross examination by the Ld. Defence Counsel the witness has deposed that he had given the ligature material after extricating cutting it from the dead body and affixed the seal of the hospital wherein the initials of SD was impressed on the pullanda which he handed over to the Investigating Officer. According to him, the Investigating Officer had received the material and he had signed over the duplicate copy of the MLC, which is preserved in the hospital. He further deposed that as soon as the Investigating Officer brought the dead body, he referred it for further management to the other hospital. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 25 (22) PW7 Dr. Ravi Medical officer of BSA Hospital has deposed that on 5.2.2004 at around 8:00 PM, one boy Ankit Kumar aged 9 years was brought by ASI Rishal Singh with the history of cardio vascular collapse. According to the witness, the said patient was unconscious and was not responding to any stimuli, Pulse and BP was not recordable and heard sound was not audible. He has further deposed that on local examination, he found a lacerated wound on the anterior part of the neck size 10 x 5 cm under lying structure exposed; trachea cut in its entire horizontal length, blood collection present and frothing seen. He has proved that the patient was brought dead to the hospital and he prepared the MLC Ex.PW7/A to this affect and handed over the dead body to the Investigating Officer.
(23) In his cross examination by the Ld. Defence Counsels the witness has deposed that he examined the patient for around 20 minutes and without further examination it was not possible to have said that the patient was brought dead. According to him, there was one more family member (male) accompanying the patient.
(24) PW11 Dr. V. K. Jha has proved that on 6.2.2004 at 3:00 PM, he conducted postmortem on the body of Mridula Kishore which was sent by Inspector Ram Chander Addl. SHO Rohini and was identified by husband Jugal Kishore. According to the witness, during postmortem he observed following external injuries :
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 26
1. Horizontally placed ligature marks present over front and side of neck at its lower part (lower 1/3) measuring 8 cm x .5. cm. Skin over ligature mark was soft and red. On dissection of neck tissue underneath the ligature mark shows extra vasation of blood.
2. Two incised wound present on the front of neck upper one was 2 cm x .4 cm x muscle deep lower one was 2 cm x .4 cm x muscle deep 1.5 cm on apart to each other situated over thyroid cartilage. One angle is acute and other blunt. Margins were bruise.
(25) The witness has proved having opined that the death was due to asphyxia as a result of ligature strangulation which was sufficient to cause death in ordinary course of nature; ligature strangulation and incised wound were antemortem in nature and time since death was 24 hours. According to the witness, clothes, mala and blood gauze piece sealed and handed over to the Investigating Officer with sample seal. He has testified that the Investigating Officer produced the ligature material i.e. nara and he examined the nara and the nature of injuries on the person of the deceased and found that Injury no.1 could have been caused by nara. He has also proved having examined the knife and having opined that the Injury no.2 could have been caused with the knife. The witness has further proved having prepared his St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 27 detailed report which is Ex.PW11/A. (26) This witness has further deposed that on the same day, he conducted the postmortem on the body of deceased Rajesh Kishore which body was sent by Inspector Ram Chander of Police Station Rohini and the body was identified by Jugal Kishore. According to the witness, during the postmortem he found following external injuries:
Cut throat injury present over front of neck over thyroid cartilage placed transversally, Length was 7 cm and breadth was 4 cm, cutting all muscles, vessels trachea up to C6 vertebrae.
(27) He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury, which was sufficient to cause death in ordinary course of nature, cut throat injury was antemortem in nature, mode of death was homicidal and time since death was approximately 24 hours. He has testified that the cloth, blood gauze piece sealed and handed over to the Investigating Officer. According to him the Investigating Officer produced one parcel having the knife and he prepared the sketch of the knife on the back of the Postmortem report and opined that Injury No.1 mentioned in the Postmortem Report could have been caused by this weapon or similar such weapon. He has proved having prepared his detail report which is Ex.PW11/B and the subsequent opinion is on the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 28 back of postmortem report.
(28) The witness has testified that on the same day, he also conducted postmortem on the body of deceased Ankit Kumar which was sent by Inspector Ram Chander of Police Station Rohini and was identified by Jugal Kishore, grandfather. According to the witness, he found the external injury i.e. cut throat injury present over front of neck present over thyroid cartilage, placed transversally length 8 cm and the breadth 4 cm, cutting all the muscles vessels, connective tissues, trachea up to C6 vertebrae. He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury which was sufficient to cause death in ordinary course of nature, which cut throat injury was antemortem in nature and mode of death was homicidal. The witness has also testified that he examined the weapon of the offence i.e. Nara and the knife and opined that the injury in this case could have been caused by weapon of offence i.e. knife. He has proved his detailed report which is Ex.PW11/C. He has further deposed that after examination the weapon of offence were taken into separate parcels and sealed with the seal of mortuary and handed over to the police official.
(29) In his cross examination the Ld. Defence Counsel the witness has deposed that he conducted the postmortem on the request of Inspector Ram Chander and also received eight inquest papers along with St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 29 the request for postmortem and made initials on the inquest papers and returned the same along with the postmortem report to the Investigating Officer. He has further deposed that those inquest papers are on record and the name of all the accused persons were not mentioned in the inquest as well as brief facts. He has testified that when there is a case of death due to asphyxia as a result of ligature strangulation, there could be bleeding from nose & mouth. He has admitted that in the case of deceased Mridula Kishore there was no bleeding from nose or mouth and the ligature marks are always in correspondence with the ligature material. According to him, he had not mentioned the length, width and pattern of the ligature material in Ex.PW11/A. He has further deposed that in report Ex.PW11/A, it is no where mentioned that the ligature material was produced by the Investigating Officer in sealed condition.
The witness has testified that there was no fracture in the neck cartilage. He has admitted that there is no mention of any sign of injury such as abrasion & bruise in his report Ex.PW11/A. He has admitted that mere presence of ligature mark on the neck is not the conclusive proof of ligature strangulation and has voluntarily explained that there is horizontal place ligature mark in this case. He has denied that changes like rigor mortis, bulging of eyes, tongue being outside the oral cavity is pathogonomic of strangulation. He has denied the suggestion that he had given the opinion on the ligature opinion at the instance of the police. He further deposed that incised wound are always with sharp edged St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 30 cutting weapon.
Police / Official witnesses:
(30) PW2 Ct. Chunny Lal has deposed that on 5.2.2004, he was posted at Crime Team NW District and on that day around 7:45 PM they received message from the police control room about the murder which had taken place at house no. H19/131, Sector7, Rohini on which he along with the crime team Incharge SI Subhash Chand and ASI Madan Gautam, dog handler reached at the spot at H. No. H19/131 at around 8:15 PM.
According to the witness, he found one dead body lying at the spot and he photographed the dead body lying on the spot and the scenes of occurrence from different angles. The witness has also deposed that he again went to Ambedkar Hospital and took the photographs of one dead body of a child and the dead body of a female at the hospital. He has further deposed that prior to going to the hospital, four fingerprints were available at the spot and he photographed the places were the finger prints were available. The witness has produced the negatives of the photographs which are Ex.PW2/A and has proved the photographs which are Mark B1 to B15. Here, I may observe that since the negatives of the photographs have been placed on record and have been proved in accordance with law, therefore the photographs shall be read as Ex.B1 to B15.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 31 (31) In his cross examination by the Ld. Defence Counsels the witness has deposed that he was having a camera make Cannon at the time of taking photographs in this case but he does not remember the model number of the camera. According to the witness, he was having two separate cameras, one camera was for taking photograph of the Chance Print and the other was for taking the photograph of the scene of the occurrence. He has further deposed that he had taken the snaps of the chance finger print but those photographs were developed by ASI Madan Gautam. The witness has also deposed that he did not state in his statement to the police that he had taken snaps of chance finger prints. However, when confronted with his statement Ex.PW3/DX1 the aforesaid fact found so mentioned.
(32) PW4 HC Randhir Singh is the Duty Officer who has deposed that on 5.2.2004, he was posted at Police Station Rohini, Delhi and was working as Duty officer from 5:00 PM to 1:00 AM. According to the witness, at 10:20 PM, he received a rukka through HC Rajbir, which was sent by Addl. SHO Inspector Ram Chander for registration of the case under Section 302/397/394 IPC on the basis of which he recorded the FIR copy of which is Ex.PW4/A. He has proved the DD No. 21A which is Ex.PW4/B and his endorsement on the rukka which is Ex.PW4/C. (33) In his cross examination by the Ld. Defence Counsles the witness has deposed that he had sent the copy of the FIR along with Ct. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 32 Rajbir after registering the same by 11:05 PM.
(34) PW5 Ct. Dinesh Kumar is a formal witness being the Special Messenger who has deposed that on 5.2.2004 he was posted at Police Station Rohini and was on motorcycle duty from 8:00 PM to 8:00 AM. According to him, the Duty officer had given him three sealed parcels for delivering the same to the Ld. Area MM, Joint CP and DCP N/W pursuant to which he delivered the envelops at the residence of the above officers. He has been crossexamined by the Ld. Defence Counsel but nothing much has come out of the same and he stood by her version. (35) PW6 SI Manohar Lal is also a formal witness being the Draftsman who has deposed that on 24.2.2004, Inspector Ram Chander had called him to prepare a site plan of house no. 19/131, Sector7, Rohini. According to the witness, one person namely Kushal Kishore also accompanied him. He has proved having inspected the said house and having made notes for the purpose of preparing the site plan after which he returned to his office and prepared the scaled site plan which is Ex.PW6/A which he handed over to the Investigating Officer of this case. (36) In his cross examination by the Ld. Defence Counsel the witness has deposed that it was around 3:00 AM when they visited the House No. 19/131, Sector7, Rohini and stayed there for about one hour. He has denied the suggestion that he did not visit the place on 24.2.2004 and that he had not measured nor prepared any rough notes. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 33 (37) PW10 Ct. Priyavart has deposed that on 5.2.2004 he was posted in Police Station Rohini and on that day he remained associated with the Investigating Officer ASI Virender Singh in the investigation of this case. He has further deposed that on that day Investigating Officer had received copy of DD No.22 A on which he along the Investigating Officer reached Sector7, Rohini and in the meanwhile Ct. Satpal had reached there and handed over copy of DD no.21A to the Investigating Officer. According to him, Addl. SHO along with staff arrived there in Tata 407 after which he accompanied ASI Virender to BSA Hospital where one lady Mridula and male child Ankit were found admitted in the hospital who were declared dead. He has also deposed that Doctor handed over the MLC and one sealed parcel along with the sample seal to ASI Virender and he (witness) was left there in the hospital to take care of the bodies whereas ASI Virender himself had gone the place of occurrence. According to the witness, ASI Virender returned back to the hospital in Tata 407 and had brought one Rajesh and the two dead bodies of female and the child, which were lying in the hospital, were also shifted in the Tata 407 after which all the three bodies were taken to Mortuary, SGM Hospital, Mangol Puri. He has proved having accompanied those bodes and remained posted in the SGM Hospital to take care of dead bodies. The witness has testified that on 6.2.2004 Addl. SHO Inspector Ram Chander had come to the mortuary and did the formalities of getting the bodies postmortem and thereafter three bodies St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 34 were handed over to the doctor, who conducted the postmortem. He has proved that the doctor handed over three sealed parcels which she handed over to Addl. SHO Inspector Ram Chander who seized the same vide seizure memo Ex.PW10/A. This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
(38) PW12 ASI Madan Gautam has deposed that on 5.2.2004, he was posted in Mobile Crime Team, North West District and on that day he accompanied SI Subhash Chand, Incharge Mobile Crime Team to the spot i.e. H19/131, Sector7, Rohini where he inspected the spot and lifted four finger prints from the locker in an iron almirah and submitted his report which is Ex.PW12/A. The witness has further deposed that he developed the above said four chance prints by using florescent powder in UV light/ crime scope machine. According to him, the photographs of these four developed chance prints were taken by Ct. Chunni Lal, who took total twelve photographs in all. This witness has not been cross examined by the Ld. Defence Counsels despite opportunity and hence his testimony has gone uncontroverted.
(39) PW13 ASI Virender Singh has deposed that on 5.2.2004, on receipt of DD No. 20A by the Duty Officer regarding the cries of a child in Sector7, H. Block, Rohini, he along with Ct. Priya Vrat reached HBlock, Sector7, Rohini where he found Inspector Ram Chander along with staff present. According to the witness, on going inside the house, St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 35 he found that dead body was lying dead on a bed and they came to know that a lady Mridula and her grandson Ankit had already been removed to BSA hospital. The witness has testified that he had noticed that the throat of the boy was slit, blood was also lying there. He has also deposed that thereafter Inspector Ram Chander directed him to go to BSA Hospital where the other injured had already been removed on which he along with Ct. Priya Vrat went to BSA hospital where he found Mridula and her grandson Ankit admitted who were declared "brought dead" by the doctors. The witness has further testified that the photographer was called by him, who took the photographs of both the dead bodies. He has proved that the doctor handed over ligature material to him from the dead body of Mridula in a sealed parcel which he handed over to Addl. SHO Insp. Ram Chander vide memo Ex.PW13/A. He has also deposed that from the hospital, they returned back to the place of crime where the Inspector directed him to take three bodies of the deceased to the mortuary of Sanjay Gandhi Memorial hospital on which he along with Ct. Priya Vrat had taken those three bodies to the mortuary of SGM hospital and deposited them in the mortuary for postmortem. (40) In his cross examination by the Ld. Defence Counsels the witness has deposed that for the first time, he had reached to the spot of incident at about 7:30 PM and Inspector Ram Chander had reached to the spot almost simultaneously of his arrival there. According to the witness, he remained at the spot for maximum ten minutes before going to the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 36 hospital as per instructions of the inspector. He has also deposed that blood was lying on the cot as well as on the floor. The witness has further deposed that he left the spot along with Ct. Priya Vrat at about 7:40 PM to to the hospital and it took them about ten minutes to reach to the hospital. According to him, he had informed the Inspector about the dead bodies and also requested him to send a photographer to take the photos of those bodies. He has also deposed that the photographer came and took the photographs of the bodies. He does not recollect the time when he handed over the parcel of the ligature. He has deposed that he remained in the hospital for about 2025 minutes and did not record the statement of the doctors.
(41) PW14 Inspector Krishan Kumar has deposed that on 10.2.2004 he was posted as SHO at Police Station Rohini and the accused Virender @ Mintu, Surender and Vijay Pal were in the police custody and Addl. SHO Ram Chander was interrogating the accused persons in his presence. He has further testified that all the three accused made separately disclosure statements which were reduced into writing by Inspector Ram Chander. According to him, after the disclosure statements he along with the accused persons, SI Daya Nand, HC Rajbir, HC Vijender, HC Naresh and fivesix Constables had gone to Ghaziabad. The witness has testified that the accused Virender led the police party to his house in village Sara, District Ghaziabad where there was a small room in the house and one iron box was lying there from where the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 37 accused had taken out two kangans of gold, two bangles in golden colour, one earring in golden colour, one chain in golden colour, one grey coloured pant with blood stains and one grey colour shirt with blood stains. He has proved that the jewellery items and the clothes were kept in separate cloth parcels which were sealed with the seal of KKS and seized vide memo Ex.PW14/A and the seal after use was handed over to SI Daya Nand. He has testified that accused Surender led the police party to Village Saleempura, Bulandshahar, U.P. where he (accused) took them to his house and from an iron box lying in one room of the house the accused got recovered the necklace of golden colour, one grey coloured pant and one light brown colour shirt both having blood stains. He has proved that the jewellery and the recovered clothes were kept in separate parcels, which were sealed with the seal of KKS which was with SI Daya Nand and both the parcels were taken into possession vide memo Ex.PW14/B and the seal was again handed over to SI Daya Nand. The witness has further deposed that thereafter accused Vijay Pal led the police party to village Pachoda, District Bulandshahar, U.P. and pointed out one iron box was lying under a Chhappar outside the place where the animals were kept. According to him, the accused Vijay took out jewelery items i.e. pair of kangan, pair of bangles, one mangalsutra, one small chain, one earring, and one jhumka of ear, all in golden colour, one light green colour pant having blood stains and one pullover of black colour from that box. He has testified that the jewellery and the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 38 recovered clothes were kept in separate parcels, which were sealed with the seal of KKS and both the parcels were taken into police possession vide memo Ex.PW14/C. He has clarified that the seal was affixed on the parcels after taking back from SI Daya Nand and was again handed over to SI Daya Nand. According to him, thereafter they returned back to Police Station Rohini and the statements of police officials were recorded and the parcels of the case property were deposited in the malkhana. (42) He has identified the case property i.e. necklace which is Ex.P6 got recovered by the accused Surender @ Kalwa; one pair of kangan, one pair of bangles, one mangalsutra, one small chain, one piece of earring which are Ex.P1 to Ex.P5 got recovered by the accused Vijay Pal; one pair of Kangan, one pair of bangles, another pair of bangle, one chain and one pair of tops which are Ex.P7 to Ex.P15 all in golden colour got recovered by the accused Virender @ Mintoo; grey colour pant and shirt got recovered by accused Virender @ Mintu which are Ex.P16 & Ex.P17; white colour pant which was recovered by accused Vijay Pal which is Ex.P18 and one cream colour pant and grey colour shirt got recovered by accused Surender which are Ex.P19 and Ex.P20. However, the witness has identified the accused Vijay Pal as Surender and accused Surender as Vijay Pal.
(43) The witness was accordingly crossexamined by the Ld. Addl. PP for the State where he has admitted that he was under confusion St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 39 and therefore, he could not correctly identify accused Surender and Vijay Pal. He has thereafter correctly identified the accused Surender and Vijay Pal.
(44) In his cross examination by the Ld. Defence Counsels the witness has deposed that he got the information of the incident in the evening of 5.2.2004 at about 6:30 or 7:00 PM. According to the witness he was not associated in the investigation of this case from 5.2.2004 to 9.2.2004, though Addl. SHO was continuously informing him about the investigation of the case. The witness has testified that the accused had not made disclosure in his presence nor it was recorded in his present and has explained that after recording of the disclosure statement, the accused persons were brought before him and they again repeated their disclosure statements. He has further deposed that accused persons were taken to Ghaziabad on 10.2.2004 at about 12:30/1:00 PM after making departure entry in the Daily Diary. He has explained that they had gone to Ghaziabad in one official Gypsy of the SHO and another private vehicle which was arranged by a Beat Constable. The witness has testified that they reached Ghaziabad at about 1:30/1:45 PM and they stayed in the village of accused at Ghaziabad for about 40 to 60 minutes. He has further deposed that they did not inform the local police of Ghaziabad of their investigations due to shortage of time. According to him, after recovery from village in Ghaziabad they went to Bulandshahar and reached village Saleempura at about 4:30/ 5:00 PM. He has testified that St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 40 the house of accused Surender was single storey but it was not locked nor the room from which the accused got recovered the jewellery items was locked. He has also deposed that they remained in the house of accused Surender for about one hour. According to him, after the recovery of articles they had not contacted the local police nor produced the accused in the local court. The witness has further testified that from village Saleempura, they had gone to village Pachoda in Distt. Bulandshahar where they reached at about 6:00/6:30 PM but did not contact the local police of village Pachoda. He has also deposed that the place of recovery of the goods at the house of accused Vijay Pal was within the boundary wall of the house and they stayed at the house of accused Vijay Pal for about 30 to 45 minutes. According to the witness, accused Vijay Pal was not produced before the local police or the local Magistrate nor any information of the recovery of the articles was given to any authority in village Pachoda or District Bulandshahar. He has further deposed that after recovery of the goods, they left for Delhi and reached at about 10:30/10:45 PM. The witness has also deposed that when they left for Ghaziabad/ Bulandsharhar, no public persons had accompanied them. He has further deposed that they did not make effort to join public persons because usually public persons do not participate in such investigation. According to him, the parcels were handed over to the MHC(M) at Police Station Rohini at about 11:00/11:15 PM. He has testified that he did not participate in the investigation of the case after the recovery from the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 41 accused persons. He has denied the suggestion that he did not participate in the investigation of the case nor he had gone to Ghaziabad or Bulandshahar or that the accused persons did not get recover any articles. (45) In his further cross examination the witness has deposed that the house of accused Virender was situated at a short distance from Ghaziabad. According to him, in all there were about ten police officials when they and the accused left for Ghaziabad and Bulandshahar. He has further deposed that the house of the accused was situated in the lane in village Sara which was a single storey house and was of usual construction. The witness has also deposed that the box from which the accused got recovered the articles, was not found locked. The witness has further deposed that some persons were found living in the house but he is not aware about their relations with the accused. He has testified that they did not contact the local police before or after the recovery of the goods at the instance of accused Virender and remained at the house of the accused for about 45 to 60 minutes.
(46) PW15 HC Rajbir Singh has deposed that on 5.1.2004 at about 7:22 PM he accompanied SI Daya Nand, Inspector Ram Chander and Ct. Sushil and had gone to H. No. 19/131, Sector7, Rohini. According to the witness, he went inside the first room on the house where dead body of a male was lying on the bed and thereafter on the directions of higher police officers he went outside the house to manage the traffic and the public persons. He has testified that on the same day at St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 42 about 10:00 PM Inspector Ram Chander had given him the rukka which he had taken to Police Station Rohini and handed over the same to Duty Officer for registration of the case. The witness has also deposed that after registration of the case, the Duty Officer handed over him the copy of FIR and the original rukka which he brought to the spot and handed over to Inspector Ram Chander who recorded his statement. (47) The witness HC Rajbir Singh has further deposed that on 8.2.2004 he accompanied Inspector Ram Chander, SI Daya Nand, HC Naresh and driver Hawa Singh in a official vehicle and had gone to Mangol Puri. He has also deposed that he remained in the vehicle whereas Inspector Ram Chander and SI Daya Nand went somewhere in Mangol Puri and returned back after which they all went to village Dir Pur where he again remained in the vehicle and Inspector Ram Chander and SI Daya Nand went somewhere and returned back after some time. According to him, from Dhir Pur they all had gone to village Khera where Inspector Ram Chander and SI Daya Nand had left the vehicle to go somewhere and from village Khera they returned to Karnal Road. He has testified that at about 6:007:00 pm three persons alighted from a bus at byepass Karnal Road who were apprehended by the Inspector who made inquiry from them. He has also deposed that on inquiry the names of those three persons came to be known as Surender @ Kalwa, Vijay Pal and Virender. He has proved that after some inquiry made by Inspector, he kept the accused persons in his custody. According to him, accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 43 Surender was found carrying cash amounting to about Rs.10,000/, one black colour bag which was having coins & two screw drivers, the accused Vijay Pal was having one earring & one locket but he is not aware if anything was recovered from the third accused or not. He has clarified that he had only seen the goods being taken out from the bag but he did not sign the seizure memo of the goods. The witness has further deposed that Inspector arrested the accused persons and their personal searches were conducted after which the accused persons were brought to the Police Station.
(48) According to the witness 10.2.2004 he joined the investigations along with Inspector Krishan Kumar Sharma who was the SHO, Inspector Ram Chander Addl. SHO, SI Daya Nand and other police staff. He has testified that the police party and the accused persons had gone to the house of accused Virender at Village Sara, Distt. Ghaziabad, U.P. where the accused Virender led the police party to his house where one iron box was lying in the room and from that box the accused took out some jewelery items i.e. two bangles, two kangan, two ear tops, two bangles of different designs, one chain and the clothes. He has proved that the Inspector converted the recovered clothes in a separate parcel and jewellery items in another parcels after which both the parcels were taken into police possession vide memo Ex.PW14/A. The witness has also deposed that thereafter, accused Surender took them (police party) to his house in village Salempura, Distt. Bullandshahar, U.P. from where the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 44 accused Surender took out one necklace and clothes after taking them out from a box, which necklace and clothes were sealed in separate parcels and were taken into police possession vide memo Ex.PW14/B. The witness has further proved that thereafter they went to the village Pachota, Distt. Bulandshahar of accused Vijay Pal where the accused took out jewellery and clothes from the iron box lying in the chhappar of his house and produced the same before the Inspector. According to him, the jewellery items were two kangan, two churian (bangles), one small chain, one mangalsutra, one ear jhumki and one bali. He has testified that the clothes and jewellery items were kept in a separate parcels and sealed with the seal of KKS and were seized vide memo Ex.PW14/C. (49) The witness has explained that when the accused persons were apprehended on 8.2.2004 during interrogations they made separate disclosure statements which were reduced into writing. He has proved the disclosure statement of accused Surender which is Ex.PW15/A; disclosure statement of accused Virender which is Ex.PW15/B and disclosure statement of accused Vijay Pal which is Ex.PW15/C. (50) He has correctly identified the accused persons in the Court and also identified the case property i.e. one pair of kangan, one pair of bangles, one mangalsutra, one small chain, one piece of earring which are Ex.P1 to Ex.P5 got recovered by the accused Vijay Pal; necklace which is Ex.P6 got recovered by the accused Surender @ Kalwa; one pair of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 45 Kangan, one pair of bangles, another pair of bangle, one chain and one pair of tops which are Ex.P7 to Ex.P15 all in golden colour got recovered by the accused Virender @ Mintoo; grey colour pant and shirt got recovered by accused Virender @ Mintu which are Ex.P16 & Ex.P17; white colour pant which was recovered by accused Vijay Pal which is Ex.P18 and one cream colour pant and grey colour shirt got recovered by accused Surender which are Ex.P19 and Ex.P20. The witness deposed that one credit card was also recovered from the possession of the accused Surender at the time of his apprehension on 8.2.2004. (51) Since the witness was found resiling from his previous statement, therefore, the Ld. Addl. PP for the State has crossexamined him wherein he has admitted that on 8.2.2004 at the time of the apprehension of the accused Virender, one pair of ear tops was also recovered from the pocket of the pant of the accused. (52) In his cross examination by the Ld. Defence Counsels the witness has deposed that he reached to the spot of incident on 7.2.2004 at about 7:25 PM and remained at the spot till about midnight. According to the witness, his statement was recorded at the spot after 12:00 in the midnight on the night intervening 78.2.2004. He has further deposed that on 8.2.2004 they left for Mangol Puri at about 8:30 AM and their departure DD was recorded in the Police Station before they left on 8.2.2004 and reached to Mangol Puri at about 9:00 AM. He has testified that in Mangol Puri they parked their vehicle in a small lane and in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 46 Dhirpur the vehicle was parked on a road. According to him, they reached to Karnal byepass around 1:30 PM and the distance between village Khera and Karnal byepass is about 1820 kms. He has further deposed that at Karnal bye pass, their vehicle was parked at some distance from the bus stand at Panipat Road and the Inspector told them that the vehicles going towards village Khera, were to be checked and if he would have suspicion on any person, then he would tell them. He has testified that no public person was asked to join the investigations. He has further deposed that the checking started at about 1:30 PM and all the buses going to village Khera, were checked. He has also deposed that during the checking the accused persons were apprehended at about 3:004:00 PM after which the checking of the buses was stopped. He does not recollect the registration number and route number of the bus from which the accused persons were apprehended. He has testified that the accused were apprehended when checked at the time of their alighting from the bus by the Inspector. According to him, the Inspector made inquiries from accused persons at Karnal bye pass in his presence and it was the Inspector who had conducted the search of the accused and they were arrested almost at the time of Sunset. He has further deposed that the written papers were prepared at the place of the apprehension of the accused persons and thereafter they returned to the police station after about 10:00 PM on 8.2.2004. He has admitted that he did not sign any paper of investigation at Mukarba Chowk but has denied that he was not St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 47 present at that time or that he did not join the investigations with the Investigating Officer.
(53) This witness has further deposed that he was rejoined in the investigation of the case at about 11:0011:30 AM on 10.2.2004 and they left the Police Station after 12:00 noon. According to him, they left in one official vehicle (Gypsy) and two private cars but he is not aware of the registration number of any of the vehicles. He has further deposed that before leaving the Police Station on 10.2.2004 a departure entry was recorded but he does not remember the DD Number. He is unable to tell the names of the persons who occupied the particular vehicle to go with the accused persons. He has testified that they reached Ghaziabad in one hour after they left the police station and that the local police was not contacted. According to him, they parked the vehicles at some distance from the house of accused Virender in village Sara and some villagers had collected there but he is not confirmed if village Pradhan had come at the time of their investigations at the house of the accused. He has further deposed that in his presence the Investigating Officer had not contacted any public person in the village to join the investigations. He has testified that they remained at village Sara for about 40 minutes and then left for village Saleempura, District Bulandshahar where they reached in one to one and a half hours. According to him, the vehicles were parked at some distance from the house of accused Surender @ Kalwa in village Saleempura which house was a pucca built house. He St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 48 has testified that the public persons had gathered on seeing the police party and in his presence public persons were requested to join the investigations but none agreed. He has further deposed that he went inside the house and some persons were available inside the house of the accused but those persons were not investigated. The witness has also deposed that the room was not locked but the box from which the accused got recovered the articles, was lying locked and has clarified that it was not locked but otherwise, bolted and some other goods were also lying in that box.
(54) In his further cross examination the witness has deposed that the Investigating Officer had not asked the Sarpanch of the village of the accused Surender to the effect that they had come to investigate the matter in question. According to him, some written proceedings were conducted at the said village by the Investigating Officer who also conducted the sealing proceedings of jewellery and cloths which were concluded within around 45 minutes. He has testified that the Investigating Officer had not informed the local police or the Sarpanch of the village regarding the recovery of the case property from the house of accused Surender. The witness has further deposed that they remained at the house of the accused Surender @ Kalwa around 4:00 to 5:00 PM after which they left for the house of the other accused Vijay Pal. According to him, the Investigating Officer has not contacted the local police or village Pradhan. He has also deposed that they reached the house of accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 49 Vijay Pal in the village Pachota in Bullandshahr District at about 6:30 PM and a crowd gathered at the village Pachota after reaching the police party. He has explained that there was a chhapparnuma house (Kacha pakka) in unlocked condition which was unlocked and nobody was present there. According to him, there was only one room in the house which was unlocked and inside the room there was box, some clothes were hanging on the iron nail and animals were tied inside the room.This witness deposed that throughout the proceedings no public witness was asked to join the proceedings. He has denied the suggestion that no recovery has been effected from the accused Surender and Vijay Pal or that he never joined the investigations.
(55) The witness has admitted that the date of the incident is 5.2.2004 but states that he has wrongly mentioned the same in his earlier statement as 5.1.2004. He has also admitted that on 8.2.2004 he had accompanied Inspector Ram Chander and other police officials in a Govt. vehicle Tata 407. He is unable to tell if the police party was in uniform or not. He has further deposed that at about 45 PM all the three accused persons were alighted while getting down from the bus and Inspector ram Chander searched the accused persons and inquired the matter and the articles, which were available in the search of the accused persons, were taken into custody by the police party. According to him, the articles were including two ear tops from the accused Virender. He has further deposed that on 10.2.2004 they went to effect the recovery from the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 50 respective villages of accused persons. He has testified that first of all they reached the village of accused Virender at Sara at about 3:004:00 PM on 10.2.2004. The witness has further deposed that the house of the accused Virender was consisting two rooms, out of which one room was open and one iron box was lying which was also unlocked and the accused Virender took out the jewellery articles and the clothes related to the offence from that box and handed over to the police party. He has admitted that when the parcels Ex.P7 to Ex.P15 were opened one item two bangles of different design has not been mentioned while in his examination in chief he has mentioned that two Kangans were of different design. He has denied the suggestion that police party never went to the village of accused persons to effect the recovery of the articles or that he had not conducted any inquiry in this case.
(56) PW16 Ct. Balbir Singh is a formal witness who has deposed that on 5.2.2004 he was posted at Crime Mobile Team and on that day he was a dog handler and one dog Zenni was with him. He has further deposed that he along with Incharge Crime Team went to house no. 19/131, Sector7, Rohini where the dog smelled the spot and after smelling the dog went up to gali twice or thrice and came back to the spot. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 51 (57) PW17 Sh. Manoj Kumar Nagpal the then Ld. MM has deposed that on 23.3.2004, the Investigating Officer presented an application Ex.PW1/D for conducting TIP of the case property pursuant to which he conducted TIP of case property on the same day. According to the witness he commenced the TIP of case property in his chamber at about 3.15 PM and Investigating Officer Inspector Rajbir Singh produced the case property of case in five cloth pullandas, two of the cloth pullandas were sealed with the seal of RCS and remaining three cloths pullandas were sealed with the seal of KKS which pullandas were having particulars of the case etc. He has further proved that he called the Naib Court inside the chamber and on his directions all five pullandas containing the case property of this case were opened which found to contain the jewellery articles and he placed all the articles before the witness on his table after mixing the same. The witness has also proved that the witness Sh. Jugal Kishore was called inside the chamber and he identified his jewellery items after taking considerable time of about ten minutes after which he completed the TIP proceedings of the case property which are Ex.PW1/E. He has proved having recorded the certificate regarding true and correctness of the TIP proceedings and on completion of TIP proceedings the case property was resealed in the parcel and handed over to the Investigating Officer. He has not been crossexamined by the Ld. Defence Counsels despite opportunity in this regard and hence his testimony has gone uncontroverted. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 52 (58) PW18 Sh. Balbir Singh Assistant General Manager (Legal), BSNL, Mathura, U.P. has deposed that a request letter written by Investigating Officer dated 15.4.2004 by which call detail of telephone no. 2431472 & 2430895 dated 5.2.2004 between 11:30 AM to 12:30 PM had been demanded from their office and in pursuance to the letter Ex.PW18/A, photocopy of call detail was provided to the Investigating Officer photocopy of which is Ex.PW18/B. He has further deposed that as per call detail Ex.PW18/B, call detail of aforesaid phone number of relevant period have not been provided to the Investigating Officer as data of call detail had been corrupted due to some technical fault of software. According to him, generally in a year three or four times call detail may be corrupted due to aforesaid fault.
(59) In his cross examination by the Ld. Defence Counsels the witness has deposed that he has not brought any authorization letter to deposed before court on behalf of General Manager, BSNL, Mathura. He has denied the suggestion that he has not been authorized by General Manager, BSNL Mathura to depose before the court. He has admitted that Ex.PW18/B contains detail of telephone no. 2430895 only from the period 3.2.2004 to 9.2.2004 and call detail Ex.PW18/B does not contain detail of any phone call being made to Delhi. He has also admitted that Call Detail Ex.PW18/B does not bear any call detail record dated 5.2.2004 and that there is no call detail whatsoever of telephone no. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 53 2431472 on Ex.PW18/B. (60) PW19 Inspector Rajbir Singh Malik has deposed that on 24.2.2004 the investigation of this case was assigned to him by the oral order of senior police officer. He has proved having collected the case file from previous Investigating Officer Inspector Ram Chander and after going through the case file, he sent the chance print material of accused persons lifted from the spot, which was available on file, to Finger Print Bureau, Malviya Nagar, Delhi for comparison. According to the witness, on 15.3.2004 he presented written request Ex.PW19/A before Sh. Mukesh Kumar Gupta Ld. MM, Tis Hazari Courts for the purpose of judicial TIP of case property which was assigned to Sh. Manoj Kumar Nagpal, Ld. MM for 23.3.2004 and on that day he produced sealed parcel of case property along with other similar case property for missing and produced the witness Yugal Kishore. He has proved that he identified the complainant before Ld. MM and the Judicial TIP of case property was conducted vide Ex.PW17/A and he received the copy of TIP proceedings from the court by moving application Ex.PW1/D. According to the witness, he came to the Police Station and deposited the sealed parcel to MHCM in sealed condition and he also returned back mixing jewellery articles to concerned persons. He has further testified that in the first week of May 2004 sealed parcel of present case containing exhibits along with sample seal were sent to CSL, Calcutta for analysis along with forwarding letter and two copy of RC through Ct. Priya Vrat after taking St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 54 out the same from the custody of MHCM. He has further deposed that Ct. Priya Vrat returned back to Police Station on 5.5.2004 after depositing the aforesaid sealed parcels etc. and on the same day he recorded his statement as well as statement of MHCM. He has proved that on 15.4.2004 he presented written request before General Manager, BSNL, Mathura, UP for the purpose of getting Call Details of telephone number 2431472 and 2430895 of dated 5.2.2004 between 11:30 AM to 12:30 AM, carbon copy of which written request is Ex.PW18/A. According to him, in pursuance of aforesaid written request, he collected photocopy of call detail of aforesaid phones vide Ex.PW18/B and after going through the call detail, it came into notice that the call detail date has been captured of the aforesaid relevant period reason best known to the Department. He has proved having collected copy of DD entry no.3A and copy of DD No. 26A dated 5.6.2004 which are Ex.PW19/B and Ex.PW19/C and also having collected report from the office of finger Print Bureau dated 5.3.2004 which is Ex.PW19/D prepared by Gyanender Singh along with forwarding letter/memorandum Ex.PW19/E and placed the same on file. He has also deposed that it came into his notice from the report Ex.PW19/E that no opinion can be given regarding the prints. He has further deposed that he recorded statement of the witnesses and completed the investigation of this case by preparing the charge sheet against the three accused persons namely Surender, Vijay Pal and Virender whom he has identified in the Court. According to him, during St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 55 course of trial, FSL reports of this case were submitted on judicial file on behalf of SHO Rohini on 6.8.2008, which are attested copy of report dated 15.12.2004 and 11.1.2005 Ex.PW19/F and Ex.PW19/G, forwarding letter of Director which is Ex.PW19/H. He has further proved the scientific report dated 12.7.2004 which is Ex.PW19/I and its forwarding letter which is Ex.PW19/J. (61) In his cross examination by the Ld. Defence Counsels the witness has deposed that on 24.2.2004 the investigation of the instant case was assigned to him by the SHO Rohini and an entry to this effect was made in the IO Register maintained in the record. According to him, the chance print material of the accused were obtained by the crime team and by the earlier Investigating Officer, which were sent for comparison in finger print bureau, Malviya Nagar. He has admitted that he has taken charge as Investigating Officer from the previous Investigating Officer namely Inspector Ram Chander. The witness has also deposed that after receiving the call details he verified the same but the desired calls were not in the list and has voluntarily explained that he had made a telephone call to the BSNL authority and they replied that due to some technical problem the desired calls were not in the list. He denied the suggestion that he has not conducted the investigation in a fair manner. (62) PW20 Retd. Inspector Ram Chander Sangwan is the previous Investigating Officer of this case who has deposed that on 5.2.2004, Duty Officer informed him about the facts of DD No. 21A St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 56 Ex.PW4/B on which he along with staff including SI Daya Nand, HC Rajbir Singh left the police station in official vehicle i.e. Tata 407 bearing No. DL1LE4049 and reached at House No. H19/131, Sector7, Rohini, Delhi, where he found ASI Virender Singh along with staff present there. According to the witness, he inspected the spot and found one dead body of young boy lying on the bed in the right side of the room at ground floor of the said house and some public persons were also present there at that time. He has testified that the name of the deceased boy was Rajesh Kishore S/o Jugal Kishore and the dead body of deceased was lying in a pool of blood. The witness has also deposed that one kitchen knife blood stained was also lying near the dead body of the deceased Rajesh and found the stab injury mark on the neck of the deceased. The witness has further deposed that on inquiry from public persons at the spot, he came to know that one Mridula Kishore and one Ankit Kumar had already been removed to BSA Hospital, Rohini in injured condition after which he directed ASI Virender Singh to go to BSA Hospital to inquire about the above mentioned injured. According to him, he also found blood scattered on the bed lying in the second room of the house and also went inside the third room of the house and also found blood lying by the side of the bed on the floor in the said room. He has testified that he noticed the lock of the steel almirah broken inside the said room and also found two empty jewellery box lying on the bed. He has proved having called the crime team at the spot who reached at the spot along with Dog Squad St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 57 and inspected the place of occurrence and photographer took photographs of the spot from different angles. The witness has testified that on request of ASI Virender Singh from BSA Hospital, he sent the photographer of Crime Team to BSA Hospital who reached there. He has further deposed that thereafter he made inquiry from the public persons about the incident but none had told him about the clue of the incident and in the meantime, ASI Virender Singh reached the spot from BSA Hospital and handed over two MLCs of Mridula Kishore and Ankit Kumar to him which the doctor had declared them as 'brought dead'. According to him, ASI Virender Singh handed over one sealed pullanda and one sample seal of same specimen to him and the same were taken into possession by him vide memo Ex.PW13/A. He has proved having prepared the rukka on DD no. 11A which rukka is Ex.PW20/A and the same was sent to Police Station Rohini for registration of the case through HC Rajbir Singh and in the meantime SI Subhash Chand, the then Incharge Crime Team, handed over the crime team report Ex.PW20/B to him after preparing and signing the same. He has further deposed that ASI Madan Gautam of Mobile Crime Team handed over the finger print report Ex.PW12/A to him at the spot and the dead body of deceased Rajesh Kishore was removed from spot to BSA hospital mortuary in Tata 407 in the supervision of ASI Virender. The witness has deposed that thereafter, the dead body of all the three deceased were shifted to the mortuary of SGM Hospital, Mangol Puri from BSA Hospital. He has proved having lifted blood stained Gadda St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 58 cover from the bed where the dead body of deceased Rajesh Kishore was lying and sealed the same in a pullanda and was taken into possession vide memo Ex.PW8/A; having lifted blood stained kitchen knife from the spot and prepared its sketch vide Ex.PW8/D after which the knife was sealed in pullanda with the seal of RCS and was taken into possession vide memo Ex.PW8/C; having lifted the blood stained bed sheet from the bed on which the dead body of deceased Mridula Kishore was stated to be lying and the same was sealed in a pullanda with the seal of RCS and was taken into possession vide memo Ex.PW8/E; having lifted blood stained floor, blood and floor pieces without blood from the third room where the dead body of deceased Ankit was stated to be lying and kept the same in a plastic jar and were sealed with the seal of RCS separately and all the three pullandas were taken into possession by him vide memo Ex.PW8/F; having lifted the cover of the lock of almirah at the spot, which was sealed in a pullanda with the seal of RCS and taken into possession vide memo Ex.PW8/G. The witness has further deposed that in the meantime HC Rajbir reached at the spot and he handed over original rukka and copy of FIR to him after which he (witness) prepared the site plan of the place of occurrence Ex.PW20/C with correct marginal notes at the instance of public witness Kaushal Kishore. According to the witness, thereafter he made inquiry about the clue of the incident but did not find any clue about the same. He has proved having St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 59 recorded the statement of witnesses under Section 161 Cr.P.C. on that day and thereafter came back to Police Station Rohini where he deposited the case property in the Malkhana. The witness has further deposed that on 6.2.2004 he went to SGM Hospital mortuary where he found one Kiran Babu and Jugal Kishore who identified the dead body of deceased persons. According to the witness, he recorded the statement of Kiran Babu which is Ex.PW20/D and that of Jugal Kishore which is Ex.PW1/A after which he prepared the inquest proceedings pertaining to the dead body of deceased Mridula Kishore which is Ex.PW20/E; brief facts pertaining to the dead body of deceased Mridula Kishore which is Ex.PW20/F and prepared a written request Ex.PW20/G to conduct the postmortem on the body of deceased Mridula Kishore. He has also proved having prepared inquest proceedings Ex.PW20/H pertaining to the dead body of deceased Rajesh Kishroe; having recorded the statement of Kiran Babu vide Ex.PW20/J and of Jugal Kishore vide Ex.PW1/B regarding the identification of deceased Rajesh Kishore; having prepared the brief facts Ex.PW20/K pertaining to the dead body of deceased Rajesh Kishore and made a written request Ex.PW20/L to conduct the postmortem on the body of deceased Rajesh Kishore. The witness has further proved having prepared inquest proceedings Ex.PW20/M pertaining to the deceased Ankit Kumar; having recorded the statement of Kiran Babu vide Ex.PW20/N and statement of Jugal Kishore vide St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 60 Ex.PW1/C regarding the identification of the dead body of deceased Ankit Kumar; having prepared brief facts Ex.PW20/O pertaining to the dead body of deceased Ankit Kumar and prepared written request Ex.PW20/P to conduct the postmortem on the body of deceased Ankit Kumar. He has testified that the postmortem on the bodies of all the three deceased were conducted by doctor and thereafter, their dead bodies were handed over to their relatives and Ct. Priya Vrat handed over eight pullandas sealed with the seal of SGMH Hospital Mortuary, Mangol Puri and three sample seals of the same specimen to him which were were taken into possession by him vide Ex.PW10/A. He has proved having recorded the statement of the witnesses pertaining to the investigation conducted by him on that day and having collected the postmortem reports of all the three deceased after which he came back to the Police Station and case property was deposed by him in the Malkhana. (63) The Investigating Officer has further deposed that on 7.2.2004, he again interrogated the relatives of the deceased and during interrogation, he recorded statement of Jugal Kishore husband of deceased Mridula Kishore and as per his statement, Jugal Kishore called his wife on telephone at about 12/1:00 PM on 5.2.2004 from Mathura where Jugal Kishore was working in Indian Oil, Mathura Refinery. According to the witness, Jugal Kishore further stated that his deceased wife had told him on telephone that Surender @ Kalwa along with his two cousin brother namely Virender and Vijay Pal were present at their St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 61 house at that time and she was cooking meal for them. The witness has further deposed that Jugal Kishore also gave details of the robbed articles in his statement including cash and also informed that accused Surender belonged to the village of his deceased wife i.e. village Saleempura, Police Station Kakor, Distt. Bulandshahar, U.P. He has testified that he immediately organized a raiding party and went to the said village where he came to know that all the three accused had visited the said village but had left for village Pachota, District Bullandshahar of accused Vijay Lal. According to the witness, thereafter they went to village Pachota where they came to know that all the three accused persons had come for some time but left for village Sara, District Ghaziabad, U.P. Niwari but there also all the three could not be found available. However, they came to know that the accused persons were talking to go to Delhi. He has further testified that he was informed by the relatives of accused persons of the said villages about the places of their relatives at Delhi i.e. village Khera Kalan, New Mangla Puri, Mangol Puri and village Dhirpur after which they came back to Delhi and made inquiries from the relatives of deceased about the above mentioned addresses, who also disclosed that they had also visited once or twice on the some of the above places with accused and hence, they knew the addresses of said places. The witness has further deposed that on 8.2.2004, a raiding party was organized consisting of all the police officials and first visited village Khera Kalan in official vehicle TATA 407, where two sisters of accused Surender @ St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 62 Kalwa namely Meena and Kavita were residing and on inquiry, they told him that all the three accused persons had come at their residence but had left and probably the accused persons would go to New Mangla Puri as their third sister namely Mukesh was residing there. He has testified that thereafter, they went to New Mangla Puri where they came to know that accused persons had come but left after sometime probably for Mangol Puri where accused Surender's cousin sister Chandra was residing. The witness has proved that they went to Mangol Puri and visited the house of Chandra but the accused persons were not found as they visited for some time and had left probably for village Dhirpur near Mukherjee Nagar, where aunt (bua) Shakuntla of accused Surender @ Kalwa was residing and it also informed by Chandra that the accused persons were talking about visiting village Khera Kalan at around 78 PM. According to him, pursuant to the same they went to village Dhirpur where accused persons were not present and he came to know that they visited the said house but had left and was informed by Bua of accused Surender that they were talking about visiting village Khera Kalan in the evening. He has testified that he informed the SHO Inspector Krishan Kumar Sharma about the above mentioned places and his visits and also requested him to depute the staff on the above mentioned addresses and thereafter, they reached at GT Karnal byepass Delhi and after briefing the staff, every bus was checked. He has proved that during checking all the three accused persons were apprehended under suspicion and when they were asked as St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 63 to where they were going they told that they were going to village Khera Kalan. He has also deposed that they were made to alight from the bus and were thoroughly interrogated when they disclosed their names and addresses. According to the witness, the accused Surender @ Kalwa was holding a black colour rexine bag in his hand which was opened and checked which bag was containing one credit card of ICICI Bank in the name of Jugal Kishore, cash amount of Rs.10,050/, two screw drivers having green colour plastic handles and 85 coins of one rupee each lying in a small cloth bag was also found in the said rexine bag. He has proved that all the articles were separately sealed with the seal of RCS and were given serial no.1 to 4 and were seized vide common seizure memo Ex.PW20/Q. The witness has testified that he made inquires from accused Surender about the above said articles but he could not give any satisfactory answer and ultimately confessed his guilt after saying that the credit card, cash and coins were part of the robbed articles and also disclosed that the screw drivers were used in breaking the lock of locker of Almirah. According to the witness, the accused Vijay Pal of his own took out one earring, one hexagonal shape locket of golden colour having OM engraved on it and produced before him stating the said articles were also robbed in the incident of the present case after which the said articles were sealed with the seal of RCS and were given serial no.1 and 2 and were seized vide seizure memo Ex.PW20/R. He has testified that accused Virender @ Mintu produced one pair of golden colour ear tops St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 64 from his pant pocket and produced before him which tops were having design of four leaves engraved on it with red and green colour and disclosed that these articles were stated to be part of the said robbed articles on which he sealed the said tops with the seal of RCS and took the same into possession vide memo Ex.PW20/S. He has proved having arrested the accused persons vide their arrest memo Ex.PW20/S1, Ex.PW20/S2 and Ex.PW20/S3, their personal search were conducted vide memos Ex.PW20/T1, Ex.PW20/T2 and Ex.PW20/T3 after which they all came back with the accused persons along with case property at Police Station where the case property was deposited with MHC(M). the witness has testified that on interrogation all the three accused persons made their disclosure statements Ex.PW15/A, Ex.PW15/B and Ex.PW15/C. He has also deposed that the accused persons were sent to lockup and produced before the concerned MM where he moved an application Ex.PW20/U for three days Police Custody Remand on which the Court granted their two days Police Custody Remand for recovery of the remaining robbed articles. According to the witness, on 10.2.2004 a raiding party consisting the SHO Inspector K. K. Sharma and other staff including SI Dayanand was constituted and they went to respective native villages of accused persons at Saleempura Colony, Village Pachota and Village Sara and recovered the remaining robbed articles and blood stained clothes of accused persons vide memo Ex.PW14/A, Ex.PW14/B St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 65 and Ex.PW14/C but he had not joined the said raiding party as he was busy in some other work. The witness has proved that on 24.2.2004 he got inspected the spot by the draftsman SI Manohar Lal and thereafter he was transferred and the file was handed over to Inspector Rajbir Malik for further investigation.
(64) The witness has clarified that the statement of Jugal Kishore was recorded on 7.2.2004 because he had come back from Mathura in the early morning at 3:30 AM on 6.2.2004 and thereafter he remained busy in getting the postmortem and last rites of three dead bodies perfomed for the whole day and was also mentally very upset at that time. He has proved the copies of DD no.6A and 13A dated 8.2.2004 regarding his departure and arrival which DDs are Ex.PW21/1 and Ex.PW21/2; copies of DD No.10A & 12A dated 9.2.2004 which are Ex.PW20/3 and Ex.PW20/4 regarding departure and arrival for the production of accused persons before concerned court. The witness has correctly identified all the accused persons in the Court and also identified the case property i.e. two ear tops of golden colour which is Ex.P13 recovered from the possession of the accused Virender; one bali and one locker OM engraved of golden colour, which locket is Ex.P14 and Bali is Ex.P15 which were recovered from the possession of accused Vijay Pal; one credit card of ICICI Bank which is Ex.P16, recovered from the possession of accused Surender @ Kalwa; small cloth bag containing 85 coins of one rupee St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 66 each which is Ex.P17 recovered from the possession of accused Surender @ Kalwa; two screw drivers which are Ex.P18 recovered from the possession of accused Surender @ Kalwa; currency notes of denomination of 500, 100 and 50 which are total amounting to Rs. 10,050/ which are Ex.P19, which was recovered from the possession of accused Surender @ Kalwa.
(65) In his cross examination by the Ld. Defence Counsels the witness has admitted that he has been mentioned as complainant in FIR and had conducted investigation of the present case till 24.2.2004. According to the witness, he interrogated Kaushal Kishore, Magender Kishore and Jugal Kishore on 7.2.2004 and also interrogated inlaws of Magender Kishore. The witness has testified that he recorded the statement of Jugal Kishore only because he gave the details and particulars of the accused persons and robbed articles. The witness has also deposed that he did not visit Mathura to inquire whether Jugal Kishore was working in the said refinery or not. He has further deposed that first of all they went to village Saleempura Colony, District Bullandshahar organizing raiding party in one private vehicle which was make of TOYATA and they were six members in number in raiding party on 7.2.2004. He has also testified that he met parents of accused Surender at his house at village Saleempura and no local police was informed at that time but he made inquiries from the neighbourhood of the accused persons also. They visited the places of relatives of accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 67 at Delhi at the instance of addresses given by relatives of the accused as well as of deceased. According to him, on 8.2.2004, they visited the above mentioned places in TATA 407 bearing no. DL1LE4049 and might have travelled for about 50/60 Kms in Delhi at the above mentioned places i.e. Khera Kalan, New Mangla Puri, Mangol Puri and GT Karnal Road. He does not remember the number of said bus from which the accused persons were intercepted and apprehended and it was around 6:007:00 PM on 8.2.2004 when the accused persons were apprehended. He has admitted that SI Dayanand was also one of member of their investigating team on the said dates and has explained that SI Dayanand is physically and mentally not in a position to come and depose. He has testified that he came to know about DD No. 21A within five minutes after it was entered in the register. He has admitted that he did not make any separate departure entry while leaving the Police Station for the spot and has stated that it took about ten minutes in reaching the spot. According to him, on reaching the spot public persons were present there but he did not inquire about their names and addresses nor he recorded their statements. He has further deposed that he made inquires from the public persons present there but he did not make any record of such inquires. He has admitted that on examination of the broken locker, it was not possible to opine as to from which tool, the locker has been broken. According to the witness, he did not notice any tool marks on the empty jewellery boxes lying on the bed and that is why the same were not St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 68 sent to FSL. He has also deposed that first the blood stained knife was lifted from the spot by him and thereafter, it was made to dry and then only, he prepared the sketch as it is. He has further deposed that it took around one hour for receiving back the rukka and copy of FIR at the spot. According to him, he had lifted and seized all the exhibits except the cover of the locker from the spot before receiving copy of FIR. The witness has further deposed that he remained at the spot till 12/12:30 AM and thereafter, they left for Police Station. He has also deposed that he inquired regarding the telephone connection installed at the house of deceased which connection was of MTNL service. According to the witness, he did not make any inquiry from the MTNL if the said telephone was in working order on 5.2.2004 and has voluntarily explained that he himself checked the phone and dial tone was found coming. He has testified that as per his knowledge Jugal Kishore was not having any mobile phone at that time and hence there was no question of making inquiry in this regard. The witness has also deposed that he did not make any inquiry from M.S. Jatav the boss of Jugal Kishore. According to him, on 6.2.2004, he met first time Jugal Kishore at about 89:00 AM at his house at Rohini and at that time, he inquired but he was not in a position to tell anything. He has testified that he recorded the statement of Jugal Kishore on 7.2.2004 at about 7:00 AM at his house. The witness has further deposed that he did not give any written information to the senior officers for immediately organizing a raiding party on 7.2.2004. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 69 According to him, the raiding party was consisting of SI Dayanand, HC Rajbir, Ct. Satpal, Ct. Naresh and one private driver. He has stated that they reached at village Saleempura Colony within about twotwo and a half hours from Police Station. He has also testified that he did not record statement of any person in village Saleempura Colony nor they did record their arrival in the concerned Police Station at village Saleempura Colony, U.P. (66) In his further cross examination the witness has deposed that they reached at Karnal bye pass at about 56 PM on 8.2.2004 and parked their vehicle behind bus stand. According to him, he requested some public persons to join the investigation but they refused to join investigation. He has admitted that no site plan was prepared by him at GT Karnal Road, where they were standing and has stated that only DTC and private buses were checked going towards Khera Kalan and no other vehicle was checked from that side and any other vehicle from the opposite side. He further admitted that he did not prepare any detail report with regard to the said buses checked by him. The witness has also deposed that he did not record statement of driver and conductor of the bus from which the accused persons were apprehended. He has denied the suggestion that no recovery was effected from the possession of the accused Surender @ Kalwa and accused Vijay Pal or at their instance from Mukarba Chowk/ GT Karnal Road. He has further denied the suggestion that all the memos including arrest memos in this respect were St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 70 prepared in the Police Station only subsequently or that the signatures of SI Dayanand were obtained subsequently after preparing the memos. He has further denied the suggestion that accused persons were made to sign some blank papers which were subsequently fabricated into their respective disclosure statements and other memos or that no such disclosure statements were made by the accused nor in pursuance thereto any recovery was got effect. The witness has also denied the suggestion that accused Surender @ Kalwa had told him that he remained at the house of his brother in law Karan Singh on 5.2.2004 from morning to evening or that accused Vijay Pal told him that on 5.2.2004 he was at village Pachota, District Bullandshahar for the whole day. He has denied the various suggestion put to him by the Ld. Defence Counsel. STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:
(67) After completion of prosecution evidence the statements of the accused under Section 313 Cr.P.C. were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Surender @ Kalwa has stated that he is innocent and has been falsely implicated in the present case since on 5.2.2004 from morning to evening he was present in the house of his brother in law namely Karan Singh. The accused Vijay Pal has similarly stated that he is innocent and falsely implicated in the present since on 5.2.2004 he was present at his village Pachota, District Bulandshehar for St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 71 the whole day. According to accused Virender he is innocent and has been falsely implicated in the present case.
(68) The accused persons having examined four witnesses in support of their defence. DW1 Onkar is the uncle / Tau of accused Virender who has deposed that on 7.2.2004 they were at their house when at about 10:00 PM the police persons came to their village and knocked their door and inquired about the address of accused Virender @ Mintu. According to the witness, he gave address of accused to the police and asked the police persons about the matter on which they told that they were carrying him to the Police Station concerned and that they would leave the accused after inquiry but the police persons took the accused with them and they were asked to come at Police Station Niwari. He has further deposed that later on they came to know that accused had been arrested in the present case. The witness has further deposed that accused Virender was doing the work of repair of vehicles and was not having any criminal record and is having a good image in the village. (69) In his cross examination by Ld. Addl. PP for the State the witness has deposed that accused Virender is his real nephew and he is living separately from him in a separate house which is at a distance of about 20 yards from his house. He has further deposed that accused Virender is the son of Bua of accused Surender @ Kalwa. He has admitted that he was not having an eye on accused Virender on his each and every activity of everyday. He has denied the suggestion that the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 72 police was informed at village that all the three accused persons had visited the said village but they had left for Delhi. According to him, he did not lodge any complaint with any higher authority in UP or in Delhi regarding the lifting of the accused in the present case. He has further admitted that he is having no relatives in Village Khera Kalan, New Mangla Puri, Mangol Puri and Village Dhir Pur. The witness has testified that accused Surender is also related to him but he has no knowledge if the sisters of accused Surnder are married in Delhi at Village Khera Kalan, New Mangla Puri and Mangol Puri. He has also no knowledge that Bua of accused Surender is residing in Villlage Dhir Pur at Delhi. According to the witness, he is not on visiting terms with accused Surender. He has further deposed that he is not a summoned witness and being the uncle (Tau) of accused Virender he had come to depose in the Court.
(70) DW2 Gopal Krishan PIO of UP State OfficeII of Indian Oil Corporation has proved the letter Ex.DW2/A reference no. UPSO II/RTI/2305 dated 13.6.2011 issued to accused Vijay Pal and letter dated 8.1.2010 bearing reference no. UPSOII/RTI/898 annexed with Ex.DW2/A as true and correct and the same is collectively Ex.DW2/B. (71) In his cross examination by the Ld. Addl. PP for the State the witness has stated that he is not aware of the full form of the abbreviations contained in the document Ex.DW2/B in the attendance sheet at page 3 against the name of Jugal Kishore. He is also not aware St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 73 what for the abbreviations "A+B" and "C.OFF." stands for, similarly, he is not aware the meaning and implication of the word "relieved" in the said entry, which is mentioned from the date 19th upto 31st of the given month. He has also deposed that he is not known to any person by the name of Jugal Kishore nor any M. S. Jatav, who was the boss of said Jugal Kishore shown in the said entry on 5.2.2004. He has further admitted that he has no personal knowledge with regard to document Ex.DW2/B, which was an information passed on to the applicant under the RTI Act. He does not have any personal knowledge whether M. S. Jatav has ever served in Indian Oil Corporation at Mathura.
(72) DW3 Ajay is the real brother of accused Vijay Pal and has deposed that he and his brother Vijay Pal were residing together at their house in Village Pachota. According to the witness on 5.2.2004 accused Vijay Pal was present in his village at their house and he was also present there. He has testified that on the said day, from 8:00 AM to 5:00 PM, they irrigated their fields and accused was present there. This witness proved his Voter I Card, copy of which is Ex.DW3/A. According to the witness, later on the accused was arrested falsely in the present case. (73) In his cross examination by the Ld. Addl. PP for the State he has admitted that even on 5.2.2003 accused Vijay Pal was with him throughout the day and on 5.2.2005 he was in Jail. According to him, the accused Vijay Pal was arrested in this case on 8.2.2004 but he did not lodge any complaint to any police authority or any court in Delhi or UP St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 74 that his brother falsely implicated in this case. He has denied the suggestion that he has deposed falsely to shield his brother from legal consequences.
(74) DW4 Karan Singh is the brother in law (Jeeja) of accused Surender @ Kalwa and has proved his Voter I Card, copy of which is Ex.DW4/A. He has deposed that on 5.2.2004, accused Surender @ Kawla was present in his house from morning to evening and on that day, he was also present at his house throughout the day. He has further deposed that the accused Surender @ Kalwa came to his house at about 8:00 or 8:30 AM and left the house at about 4:30 or 5:00 PM. According to him, later on he came to know that accused has been arrested in the present case. He has testified that during the course of investigation he met Investigating Officer Ram Chander and on being inquired, he told him that accused Surender @ Kalwa was present in his house. (75) In his cross examination by Ld. Addl. PP for the State the witness has deposed that he got married with the sister of accused Surender in 1991 and accused Surender used to stay with him as he was working with him upto 1995. He has further deposed that accused Surender visited his house on number of occasions and used to stay whole day with him, but he is unable to tell any specific date, month and year when accused Surender stayed whole day at his residence. He has further deposed that the name of village of accused Surender is Salempura Colony. According to the witness, he knew Jugal Kishore as he got St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 75 married in the same village i.e. Saleempura Colony. He is not aware whether the accused Surender used to visit the house of Jugal Kishore to meet his wife Mridula Kishore being in the aforesaid relation of same village and as such he is unable to tell if Surender used to meet Mridula Kishore at the house of Jugal Kishore or not. He has further deposed that accused Surender was arrested on 8.2.2004 in the evening and on the same day at around 11:00 AM, police visited his house but he had not made any written complaint to any police authority or any Court that on 5.2.2004, accused Surender was present with him at his house. He has also deposed that he came to know about the murder of Smt. Mridula Kishore when police came at his house and made inquiries about Surender from him. He has denied the suggestion that he has deposed falsely being tutored at the instance of his brotherinlaw Surender. FINDINGS:
(76) I have heard the arguments advanced before me by the Ld. Addlitional Public Prosecutor for the State and the Ld. Defence counsels. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 76
Sr. Name of the Details of deposition
No. witness
Public Witnesses/ Eye Witnesses
1. Jugal Kishore He is the husband of the deceased of Mridula Kishore,
(PW1) father of deceased Rajesh Kishore and grandfather of
deceased Ankit. He has deposed on the following aspects:
1. That on 5.2.2004 he was working in Indian Oil Corporation Mathura as Operation Officer and used to visit Delhi at his house once in a week.
2. That at that time his wife Mridula, sons Magender Kishore, Rajesh Kishore and Kaushal Kirshore and grandson Ankit were residing at his house no. 131/H19, Sector7, Rohini.
3. That his grandson Ankit was the son of Magender Kishore and the wife of Magender Kishore used to reside at Shivaji Enclave Extension at house no. 165 C since there were differences in between Magender Kishore and his wife because of which the wife of Magender Kishore was residing at Shivaji Enclave.
4. That Magender Kishore had two sons, the elder Ankit used to reside at his house and the younger son Vaibhav used to reside with his mother.
5. That on 5.2.2004 at about 12:00 noon (as clarified by the witness later on), he telephoned to his wife from Mathura and talked to his wife on phone who told him that Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu who were from her village had come to the house and she was cooking meal.
6. That Surender @ Kalwa belongs to the village of his inlaws, whereas Vijay Pal and Vijender were relatives of Surender @ Kalwa.
7. That his wife further told him that she would talk to him on telephone later on as the meals which she was cooking was burning.
8. That thereafter at about 2:30 PM, he again telephoned but no one responded after which he came to his house and slept at his house at Mathura.St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 77
9. That in the meantime his emergency duty was fixed from 10:00 PM to 6:00 AM and accordingly he went to his emergency duty at 10:00 PM and at about 10:45 PM his boss telephoned to him and told him that some mishappening had taken place at his house in Delhi.
10. That he boarded a bus for Delhi and reached Delhi at about 3:30 AM and found all the relatives present at his house.
11. That his relatives narrated the incident within half an hour by saying that someone had murdered his wife, son Rajesh Kishore and grandson Ankit and on hearing the same he became unconscious and was consoled by his relatives.
12. That he found the locker of almirah, kept in a bed room, broken and found the empty jewellery boxes lying on bed and he thereafter checked the almirah wherein he had kept around Rs.20,000/ (as clarified by the witness later on) in cash and some jewellery consisting four golden kangans, one bangle, one necklace, one golden chain, four pairs of tops, one Om in gold in a black thread and four bangles of silver having golden polish, one silver chain polished in gold, one artificial mangalsutra and one kara of brass ladies but found nothing and all these items were missing.
13. That police met him and inquired and his statement was recorded on 7.2.2004 wherein he also informed the police that Surender @ Kalwa and Vijay Pal had stayed during the night of 2728.1.2004 at his house at Delhi.
14. That he and his brother identified the dead bodies of his wife Mridula, son Rajesh Kishore and grandson Ankit at Sanjay Gandhi Hospital vide identification statement of dead body of deceased Mridula which is Ex.PW1/A; identification statement of dead body of Rajesh Kishore which is Ex.PW1/B and the identification statement of dead body of Ankit which is Ex.PW1/C. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 78
15. That he obtained the dead bodies of his wife, son and grandson on 6.2.2004 and cremated the same.
16. That on 23.2.2004 he attended the court of Sh.
Manoj Kumar Nagpal, MM where he identified his jewellery items out of mixed jewellery items.
17. He has identified his signatures on the application for conducting TIP of the case property which is Ex.PW1/D and the TIP proceeding which are Ex.PW1/E. He has correctly identified all the three accused persons namely Surender @ Kalwa, Vijay Pal and Virneder in the Court and has also identified the case property.
2. Magender He is the father of the deceased Ankit, brother of deceased Kishore (PW8) Rajesh and son of deceased Mridula. He has deposed on the following aspects:
1. That in the month of January 2004, he had gone to Azad Pur for appearing in a interview at about 8:00 AM.
2. That at about 7:00 PM when he returned from Azad Pur to his house, he found a big crowd present at the house.
3. That his younger brother Kaushal Kishore was crying at a loud voice.
4. That his younger brother Rajesh was lying on the bed in a pool of blood outside the room and one blood stained kitchen knife was also lying near him.
5. That in the inner room his mother Mridula Kishore was lying on a double bed and one string (Nara) was tied around her neck and there were injuries on her neck and there was blood on the bed.
6. That inside the room his son Ankit was lying in a pool of blood and one cover of the locker and one bag were also lying on the floor in the said room.
7. That his brother Kaushal Kishore took his mother Mridula Kishore to BSA Hospital and he himself took his son in a PCR van to BSA Hospital, where both were declared brought dead by the doctors.
8. That the police seized the blood stained bed sheet duly sealed with the seal of RCS vide seizure memo St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 79 Ex.PW8/B.
9. That blood stained kitchen knife duly sealed with the seal of RCS was seized vide seizure memo Ex.PW8/C.
10. That police prepared the sketch of knife which is Ex.PW8/D prior to the seizing of the same.
11. That police seized the blood stained bed sheet on which his brother was lying duly sealed with the seal of RCS vide seizure memo Ex.PW8/E.
12. That the police seized blood stained earth and earth control sealed with the seals of RCS vide seizure memo Ex.PW8/F and also seized the lid of broken locker of the Almirah sealed with the seal of RCS vide seizure memo Ex.PW8/G. He has correctly identified the kitchen knife which is Ex.P16.
3. Kaushal He is the brother of deceased Rajesh Kishore, son of Kishore (PW9) deceased Mridula Kishore and uncle of the deceased Ankit.
He has deposed on the following lines:
1. That on 5.2.2004 at about 9:30 AM, he had gone to Computer Center at Shalimar Bagh and at about 6:45 PM, he returned to his house.
2. That his brother Rajesh Kishore was lying in a pool of blood on a bed in drawing room and his throat was slit and one blood stained kitchen was also lying near.
3. That he raised an alarm and then entered adjoining room where he saw that his mother was lying in a pool of blood on the bed and around her neck one string had been tied and there was blood on the floor.
4. That thereafter, he went into the same adjoining room where he saw that his nephew Ankit was lying in a pool of blood on the floor and there were injury marks on his neck.
5. That he came out of his house while crying and in the meanwhile his elder brother Mangender Kishore also came to the house.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 80
6. That thinking that his mother was alive, he took her to BSA Hospital and thereafter, his nephew Ankit was also brought to the same hospital by PCR van.
7. That after medical examination his mother and his nephew were declared brought dead after which they returned to their house.
8. That the police seized one blood stained bed sheet sealed with the seal of RCS vide seizure memo Ex.PW8/B and also prepared a sketch of knife Ex.PW8/D and then prepared a parcel of the knife which was seized vide seizure memo Ex.PW8/C.
9. That the police also seized the blood stained bed sheet from the bed where his mother was lying, blood stained earth and earth control from the spot and the lid of the locker of the almirah vide seizure memos Ex.PW8/E to Ex.PW8/G respectively.
10. That on 24.2.2004 the Investigating Officer along with Draftsman came to their house who inspected the spot.
The witness has correctly identified the kitchen knife which is Ex.P16 to be the same which was lying near the bed where his brother was lying and the bed sheets which are Ex.P17 and Ex.P18, which were seized by the police from the place of occurrence in his presence.
4. M.S. Jatav He is the Boss / Controlling Officer of Jugal Kishore and (PW21) has deposed on the following aspects:
1. That on 5.2.2004, he was posted at Mathura Refinery Marketing Division as Refinery Coordinator and Jugal Kishroe was working under him at Mathura Refinery.
2. That on the said day Jugal Kishore was on duty and he did A plus B shift and C shift extra duty.
3. That in A shift, the duty hours are from 6:00 AM to 2:00 PM and in B shift, the duty hours are 2:00 PM to 10:00 PM and in C shift, the duty hours are 10:00 PM to 6:00 AM next day.
4. That the duties performed by the said employee in A and B shift at Bitmen Drum filling plant (BDFP St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 81 Sector) and in C shift, he did his emergency duty in OMS1 sector (Oil movement and storage).
5. That on 5.2.2004 Jugal Kishore took one hour leave from him at about 11:30 AM during A shift for looking after his friend, who was sick and was residing in his room no. 5/22, at Township area of Mathura Refinery and Jugal Kishore came back after about one hour after which he (Jugal Kishore) again visited his said friend to change his shirt which became dirty during the filling process at about 2:00 PM or 2:30 PM and came back after about one hour during B shift.
6. That after working in B shift, Jugal Kishore left the duty 23 hours before 10:00 PM and he orally directed Jugal Kishore to perform emergency duty in C shift from 10:00 PM to 6:00 AM next morning.
7. That at about 10:45 PM, he informed Jugal Kishore through intercom at Mathura Refinery, OMS1 sector and asked Jugal Kishore to reach his hone at Delhi as somebody was seriously sick in the family and he should rush immediately to Delhi.
8. That thereafter he went to Mathura Refinery gate to pick up Jugal Kishore and after getting him boarded in the bus for Delhi he came back to his home.
9. That next day he along with twothree other officers of Mathura Refinery came to Delhi and visited the house of Jugal Kishore.
10. That as per their record, the duty done by Jugal Kishore, in C shift on 5.2.2004 was not mentioned/ planned as per roaster as it was an emergency duty and the official as per roaster fell sick on that day. Medical witnesses:
5. Dr. Kuldeep This witness has proved the MLC of the deceased Smt. Singh (PW3) Mridula which is Ex.PW3/A according to which on 5.2.2004 at about 8:15 PM, Mridula Kishore was brought by Ct. Baljeet in unconscious condition and on examination, the patient was declared brought dead. He has further St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 82 proved that there was ligature present (nara) around her neck which was blood stained.
6. Dr. Ravi (PW7) This witness has proved the MLC of Ankit which is Ex.PW7/A according to which on 5.2.2004 at around 8:00 PM, one boy Ankit Kumar aged 9 years was brought by ASI Rishal Singh with the history of cardio vascular collapse and the patient was unconscious and was not responding to any stimuli, Pulse and BP was not recordable and heard sound was not audible. He has proved that on local examination, he found a lacerated wound on the anterior part of the neck size 10 x 5 cm under lying structure exposed; trachea cut in its entire horizontal length, blood collection present and frothing seen.
7. Dr. V.K. Jha This witness has proved having conducted the postmortem (PW11) examination on the three dead bodies. He has proved that on 6.2.2004 at 3:00 PM, he conducted postmortem on the body of Mridula Kishore vide postmortem report Ex.PW11/A according to which there were following external injuries on the body of the deceased Mridula:
1. Horizontally placed ligature marks present over front and side of neck at its lower part (lower 1/3) measuring 8 cm x .5. cm. Skin over ligature mark was soft and red. On dissection of neck tissue underneath the ligature mark shows extra vasation of blood.
2. Two incised wound present on the front of neck upper one was 2 cm x .4 cm x muscle deep lower one was 2 cm x .4 cm x muscle deep 1.5 cm on apart to each other situated over thyroid cartilage. One angle is acute and other blunt. Margins were bruise.
He has also proved having opined that the death was due to asphyxia as a result of ligature strangulation which was sufficient to cause death in ordinary course of nature; ligature strangulation and incised wound were antemortem in nature and time since death was 24 hours. The witness has further proved his subsequent opinion on the weapons of offence i.e. nara and the knife according to which the Injury no.1 could have been caused by the nara and Injury no.2 St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 83 could have been caused with the knife.
This witness further proved having conducted postmortem on the body of deceased Rajesh Kishore vide Ex.PW11/B according to which a cut throat injury was present over front of neck over thyroid cartilage placed transversally, Length was 7 cm and breadth was 4 cm, cutting all muscles, vessels trachea up to C6 vertebrae.
He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury, which was sufficient to cause death in ordinary course of nature, cut throat injury was antemortem in nature, mode of death was homicidal and time since death was approximately 24 hours. The witness has also proved that the Investigating Officer produced one parcel having the knife and he prepared the sketch of the knife on the back of the Postmortem report and opined that Injury No.1 mentioned in the Postmortem Report could have been caused by this weapon or similar such weapon.
The Autopsy Surgeon has further proved having conducted the postmortem on the body of deceased Ankit Kumar vide Postmortem Report Ex.PW11/C according to the witness a cut throat injury was present over front of neck over thyroid cartilage, placed transversally length 8 cm and the breadth 4 cm, cutting all the muscles vessels, connective tissues, trachea up to C6 vertebrae. He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury which was sufficient to cause death in ordinary course of nature, which cut throat injury was antemortem in nature and mode of death was homicidal. The witness has also proved that he examined the weapon of the offence i.e. Nara and the knife and opined that the injury in this case could have been caused by weapon of offence i.e. knife.
Police / official witnesses:
8. Ct. Chunny Lal He is a formal witness being the Crime Team Photographer (PW2) who has proved that on 5.2.2004 he along with Crime Team St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 84 reached the spot i.e. house no. H19/131, Sector7, Rohini where he took photographs at the instance of the Investigating Officer and thereafter he went to Ambedkar Hospital where he took the photographs of one dead body of a child and the dead body of a female at the hospital, which photographs are Ex.B1 to Ex.B15 and negatives of the photographs are Ex.PW2/A.
9. HC Randhir He is also a formal witness being the Duty Officer who has Singh (PW4) proved having registered the FIR of present case copy of which is Ex.PW4/A, DD No. 21A which is Ex.PW4/B and his endorsement on the rukka which is Ex.PW4/C.
10. Ct. Dinesh He is a formal witness being the Special Messenger who has Kumar (PW5) proved that on 5.2.2004 he delivered the Special Reports to the Ld. Area MM, Joint CP and DCP N/W.
11. SI Manohar Lal He is also a formal witness being the Draftsman who has (PW6) proved that on 24.2.2004 he inspected the scene of crime after which he prepared the scaled site plan which is Ex.PW6/A which he handed over to the Investigating Officer.
12. Ct. Priyavart This witness had visited the spot of incident along with ASI (PW10) Virender Singh pursuant to DD No.22 A. He has deposed on the following aspects:
1. That he along the Investigating Officer reached Sector7, Rohini and in the meanwhile Ct. Satpal had reached there and handed over copy of DD no.21A to the Investigating Officer.
2. That Addl. SHO along with staff arrived there in Tata 407 after which he accompanied ASI Virender to BSA Hospital where one lady Mridula and male child Ankit were found admitted in the hospital who were declared dead.
3. That Doctor handed over the MLC and one sealed parcel along with the sample seal to ASI Virender and he (witness) was left there in the hospital to take care of the bodies whereas ASI Virender himself had gone the place of occurrence.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 85
4. That ASI Virender returned back to the hospital in Tata 407 and had brought one Rajesh and the two dead bodies of female and the child, which were lying in the hospital, were also shifted in the Tata 407 after which all the three bodies were taken to Mortuary, SGM Hospital, Mangol Puri.
5. That he accompanied those bodes and remained posted in the SGM Hospital to take care of dead bodies.
6. That on 6.2.2004 Addl. SHO Inspector Ram Chander had come to the mortuary and did the formalities of getting the bodies postmortem and thereafter three bodies were handed over to the doctor, who conducted the postmortem.
7. That the doctor handed over three sealed parcels which she handed over to Addl. SHO Inspector Ram Chander who seized the same vide seizure memo Ex.PW10/A.
13. ASI Madan He is a formal witness being the Finger Print Expert who Gautam (PW12) has proved that on 5.2.2004, inspected the scene of crime and lifted four finger prints from the locker in an iron almirah and submitted his report which is Ex.PW12/A. The witness has further proved that he developed the above said four chance prints by using florescent powder in UV light/ crime scope machine. According to him, the photographs of these four developed chance prints were taken by Ct. Chunni Lal, who took total twelve photographs in all.
14. ASI Virender This witness had gone to the spot along with Ct. Priyavrat Singh (PW13) pursuant to DD No. 20A. He has deposed on the following aspects:
1. That on going inside the house, he found that dead body of a male was lying on a bed.
2. That they came to know that a lady Mridula and her grandson Ankit had already been removed to BSA hospital.
3. That he noticed that the throat of the boy was slit, blood was also lying there.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 86
4. That thereafter Inspector Ram Chander directed him to go to BSA Hospital where the other injured had already been removed on which he along with Ct.
Priya Vrat went to BSA hospital where he found Mridula and her grandson Ankit admitted who were declared "brought dead" by the doctors.
5. That the photographer was called by him, who took the photographs of both the dead bodies.
6. That the doctor handed over ligature material to him from the dead body of Mridula in a sealed parcel which he handed over to Addl. SHO Insp. Ram Chander vide memo Ex.PW13/A.
7. That from the hospital, they returned back to the place of crime where the Inspector directed him to take three bodies of the deceased to the mortuary of Sanjay Gandhi Memorial hospital on which he along with Ct. Priya Vrat had taken those three bodies to the mortuary of SGM hospital and deposited them in the mortuary for postmortem.
15. Insp. Krishan This witness was the SHO of Police Station Rohini at the Kumar (PW14) relevant point of time and has proved the recovery of jewellery articles by the accused persons. He has deposed on the following aspect:
1. That he along with the accused persons, SI Daya Nand, HC Rajbir, HC Vijender, HC Naresh and five six Constables had gone to Ghaziabad.
2. That accused Virender led the police party to his house in village Sara, District Ghaziabad where there was a small room in the house and one iron box was lying there from where the accused had taken out two kangans of gold, two bangles in golden colour, one earring in golden colour, one chain in golden colour, one grey coloured pant with blood stains and one grey colour shirt with blood stains.
3. That the jewellery items and the clothes were kept in separate cloth parcels which were sealed with the seal of KKS and seized vide memo Ex.PW14/A.
4. That accused Surender led the police party to Village Saleempura, Bulandshahar, U.P. where he (accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 87 Surender) took them to his house and from an iron box lying in one room of the house the accused got recovered the necklace of golden colour, one grey coloured pant and one light brown colour shirt both having blood stains.
5. That the jewellery and the recovered clothes were kept in separate parcels, which were sealed with the seal of KKS which was with SI Daya Nand and both the parcels were taken into possession vide memo Ex.PW14/B and the seal was again handed over to SI Daya Nand.
6. That thereafter accused Vijay Pal led the police party to village Pachoda, District Bulandshahar, U.P. and pointed out one iron box was lying under a Chhappar outside the place where the animals were kept.
7. That the accused Vijay took out jewelery items i.e. pair of kangan, pair of bangles, one mangalsutra, one small chain, one earring, and one jhumka of ear, all in golden colour, one light green colour pant having blood stains and one pullover of black colour from that box.
8. That the jewellery and the recovered clothes were kept in separate parcels, which were sealed with the seal of KKS and both the parcels were taken into police possession vide memo Ex.PW14/C.
16. HC Rajbir This witness has joined the investigations along with SI Singh (PW15) Daya Nand and Inspector Ram Chander. He has proved having taken the rukka to the Police Station and got the FIR Registered. Further, he has proved the arrest of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu and the subsequent recovery proceedings at their instance pursuant to their disclosure statements which are Ex.PW15/A, Ex.PW15/B and Ex.PW15/C.
17. Ct. Balbir Singh He is a formal witness being the Dog Handler in Mobile (PW16) Crime Team and has proved that dog Zenni smelled the spot and after smelling the dog went up to gali twice or thrice and came back to the spot.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 88
18. Sh. Manoj He the then Ld. MM and has proved the Test Identification Kumar Nagpal Proceedings of the jewellery articles vide proceedings (PW17) Ex.PW1/E.
19. Balbir Singh He is the Assistant General Manager (Legal) of BSNL, (PW18) Mathura, U.P. and has deposed as under:
1. That a request letter was written by Investigating Officer dated 15.4.2004 by which call detail of telephone no. 2431472 & 2430895 dated 5.2.2004 between 11:30 AM to 12:30 PM had been demanded from their office.
2. That in pursuance to the letter Ex.PW18/A, photocopy of call detail was provided to the Investigating Officer photocopy of which is Ex.PW18/B.
3. That as per call detail Ex.PW18/B, call detail of aforesaid phone number of relevant period have not been provided to the Investigating Officer as data of call detail had been corrupted due to some technical fault of software.
4. That generally in a year three or four times call detail may be corrupted due to aforesaid fault.
20. Insp. Rajbir He is the subsequent Investigating officer and has proved Singh Malik the various investigation proceedings. Apart from the (PW19) documents already proved by the various witnesses, he has also proved the following documents:
Ex.PW19/A Request for conduct TIP of jewellery articles Ex.PW19/B DD No. 3A Ex.PW19/C DD No. 26A Ex.PW19/D Finger Print Report Ex.PW19/E Forwarding letter / memorandum Ex.PW19/F & CFSL Reports Ex.PW19/G Ex.PW19/H Forwarding letter Ex.PW19/I Scientific Report dated 12.7.2004 St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 89 Ex.PW19/J Forwarding letter
21. Insp. Ram He is the Investigating Officer of the present case and has Chander proved the following documents:
Sangwan Ex.PW20/A Rukka
(PW20)
Ex.PW20/B Crime Team Report
Ex.PW20/C Rough site plan of the spot of incident
Ex.PW20/D Statement of Kiran Babu
Ex.PW20/E Inquest papers pertaining to Mridula
Kishore
Ex.PW20/F Brief facts pertaining to deceased Mridula
Kishore
Ex.PW20/G Request for postmortem of Mridula
Kishore
Ex.PW20/H Inquest papers pertaining to Rajesh
Kishore
Ex.PW20/J Statement of Kiran Babu
Ex.PW20/K Brief facts pertaining to deceased Rajesh
Ex.PW20/L Request for postmortem of deceased
Rajesh
Ex.PW20/M Inquest proceedings pertaining to
deceased Ankit Kumar
Ex.PW20/N Statement of Kiran Babu
Ex.PW20/O Brief facts pertaining to deceased Ankit
Ex.PW20/P Request for postmortem of deceased Ankit
Ex.PW20/Q Seizure memo of the articles recovered
from the possession of accused Surender
@ Kalwa at the time of his arrest
Ex.PW20/R Seizure memo of the articles recovered
from the possession of accused Vijay Pal
at the time of his arrest
Ex.PW20/S Seizure memo of the articles recovered
from the possession of accused Virender
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 90
@ Mintoo at the time of his arrest
Ex.PW20/S1 Arrest memos of all the three accused
to PW20/S3
Ex.PW20/T1 Personal search memos of all the three
to PW20/T3 accused
Ex.PW20/U Application seeking three days police
custody remand of the accused
Ex.PW21/1 DD No. 6A
Ex.PW21/2 DD No. 13A
(77) Now coming to the microscopic evaluation of the evidence
against the accused persons.
Medical Evidence:
(78) Dr. Kuldeep Singh (PW3) has proved that on 5.2.2004 at
about 8:15 PM Smt. Mridula Kishore was brought by Ct. Baljeet in unconscious condition and on examination, the patient was declared brought dead vide MLC Ex.PW3/A He has also proved that there was ligature present (nara) around her neck which was blood stained. (79) Dr. Ravi (PW7) has proved that on 5.2.2004 at around 8:00 PM, the boy namely Ankit Kumar aged 9 years was brought by ASI Rishal Singh with the history of cardio vascular collapse and on examination the said patient was unconscious and was not responding to any stimuli, Pulse and BP was not recordable and heard sound was not audible. He has further proved that on local examination, he found a St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 91 lacerated wound on the anterior part of the neck size 10 x 5 cm under lying structure exposed; trachea cut in its entire horizontal length, blood collection present and frothing seen. The witness has also proved having declared the patient 'Brought Dead' vide MLC Ex.PW7/A. (80) Dr. V. K. Jha (PW11) has proved that on 6.2.2004 at 3:00 PM, he conducted postmortem on the body of Mridula Kishore vide Postmortem Report Ex.PW11/A according to which there were external injuries on the body of deceased Mridula:
1. Horizontally placed ligature marks present over front and side of neck at its lower part (lower 1/3) measuring 8 cm x .5. cm.
Skin over ligature mark was soft and red. On dissection of neck tissue underneath the ligature mark shows extra vasation of blood.
2. Two incised wound present on the front of neck upper one was 2 cm x .4 cm x muscle deep lower one was 2 cm x .4 cm x muscle deep 1.5 cm on apart to each other situated over thyroid cartilage. One angle is acute and other blunt. Margins were bruise.
(81) The witness has proved having opined that the death was due to asphyxia as a result of ligature strangulation which was sufficient to cause death in ordinary course of nature; ligature strangulation and incised wound were antemortem in nature and time since death was 24 hours. He has further proved having examined the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 92 ligature material i.e. nara and the weapon of offence i.e. knife and found that Injury no.1 could have been caused by nara and Injury no.2 could have been caused with the knife.
(82) Dr. V.K. Jha has also proved having conducted the postmortem on the body of deceased Rajesh Kishore vide Postmortem Report Ex.PW11/B according to which he found following external injuries on the body of deceased Rajesh Kishore:
Cut throat injury present over front of neck over thyroid cartilage placed transversely, Length was 7 cm and breadth was 4 cm, cutting all muscles, vessels trachea up to C6 vertebrae.
(83) He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury, which was sufficient to cause death in ordinary course of nature, cut throat injury was antemortem in nature, mode of death was homicidal and time since death was approximately 24 hours. The witness has also proved having examined the knife and opined that Injury No.1 mentioned in the Postmortem Report could have been caused by this weapon or similar such weapon.
(84) The witness Dr. V.K. Jha (PW11) has also proved having conducted the postmortem on the body of deceased Ankit Kumar vide St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 93 postmortem report Ex.PW11/C according to which there was one external injury on the body of the deceased Ankit Kumar i.e. cut throat injury present over front of neck present over thyroid cartilage, placed transversally length 8 cm and the breadth 4 cm, cutting all the muscles vessels, connective tissues, trachea up to C6 vertebrae. He has proved having opined that the cause of death was respiratory embarrassment and hemorrhagic shock as a result of cut throat injury which was sufficient to cause death in ordinary course of nature, which cut throat injury was antemortem in nature and mode of death was homicidal. The witness has also proved having examined the weapon of the offence i.e. Nara and the knife and opined that the injury in this case could have been caused by weapon of offence i.e. knife. (85) Dr. V.K. Jha (PW11) has been crossexamined at length but nothing much has come out of the same. He has been specifically put a question that in a case of death due to asphyxia as a result of ligature strangulation there could be bleeding from nose and mouth whereas when he examined Smt. Mridula Kishore there was no bleeding from her nose and mouth and has explained that there in injury on the neck muscles of the deceased Mridula and the ligature marks are corresponding with the ligature material. He has admitted that he has not mentioned the length, width and pattern of the ligature material in report and has explained that he had examined the ligature material and has also identified the same in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 94 the Court. He has further explained that in the case of deceased Mridula Kishore there was no fracture of neck cartilage and in his report he has not mentioned any signs of injury such as pressure or bruising. I have gone through the photographs of the dead body of Mridula which had been taken in the hospital by the Crime Team photographer which are Ex.B11, B13 & Ex.B14 the strangulation marks on the neck of the deceased Mridula Kishore are clear and there can be no denial that she had died on account of strangulation. Further, the strangulation material i.e. nara is also seen in the photographs taken by the Crime Team Photographer.
(86) There is no eye witness count in the present case but the photographs placed on record show the apparent position of the injury marks confirms that the death was on account of the ligature material which was tied around her neck. The photographs Ex.B1 to Ex.B14 also show that the dried blood was present on the margins of lips of deceased Mridula and her tongue protruding out which is a confirming proof of ligature strangulation and blood stains were found present on the nara i.e. ligature material. Further, it is not necessary that there should be fracture of neck cartilage and the findings of the Autopsy Surgeon cannot be doubted in this regard there being independent corroboration coming from the photographs of the dead body.
(87) Further, the postmortem reports Ex.PW11/A to Ex.PW11/C show that the postmortem examination on the dead body of deceased St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 95 Ankit was conducted on 6.2.2004 at 2:00 PM; on the dead body of deceased Mridula Kishore it was conducted at 3:00 PM and on the dead body of deceased Rajesh the postmortem examination started at 4:00 PM and the time of death was opined as 24 hours, thereby showing that the incident must have occurred between 2:00 PM to 4:00 PM on 5.2.2004.
This lends credence to the testimony of Jugal Kishroe (PW1) when he stated that initially at about 12:00 Noon he had spoken to his wife Smt. Mridula Kishore who informed him that Surender @ Kalwa, Vijay Pal and Virender had come to their house and she was cooking meal and again at about 2:30 PM when he telephoned at his house nobody responded. I may also observe that the deceased Rakesh Kishore was aged about 30 years and was an able bodied man and it would not have been possible for one person to have given effect to his killing. The nature of injuries confirms that the crime was the work of more than one person.
(88) The postmortem report in respect of deceased Mridula Kishore which is Ex.PW11/A shows that semidigested food was found in her stomach; the postmortem report of deceased Ankit Kumar which is Ex.PW11/C shows that undigested food was found in his stomach and the postmortem report of deceased Rajesh Kishore which is Ex.PW1/C shows that digested food was found in his stomach. This corroborates the testimony of Jugal Kishore (PW1) to the effect that when he telephoned at his house, his wife i.e. deceased Mridula Kishore told him that she was St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 96 cooking meals. The presence of semidigested food and undigested food in the bodies of Mridula Kishore and Ankit establishes that Ankit had just taken his meals after return from his school whereas Mridula Kishore had already taken her meals. Further, it is evident that digested food was present in the stomach of deceased Rajesh Kishore thereby establishing that he had not taken his lunch and was perhaps sleeping. (89) This being the background, I hereby hold that the medical evidence on record is compatible to the prosecution case. Forensic Evidence:
(90) Inspector Rajbir Singh Malik (PW19) has duly proved having obtained the CFSL reports which are Ex.PW19/F and Ex.PW19/I (admissible in evidence under Section 293 Cr.P.C.). The CFSL Reports establish that the blood group of deceased Rajesh Kishore was 'A Group';
that of Ankit Kumar was 'AB Group' and that of deceased Mridula Kishore was 'B Group'. Further, the blood of deceased Rajesh of 'A' Group was detected on the knife Ex.P16 and also on the clothes of the accused Vijay Pal and Virender and on the pant of the accused Surender @ Kalwa showed positive results for human blood. This can be explained because in so far as Mridula Kishore is concerned she was strangulated whereas Ankit was a helpless child who was not in a position to resist. It is Rajesh who was strong enough and would have offered some resistance and had to be over powered by the accused before his death when his St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 97 throat was gashed / slit with force which explains the presence of blood not only around his body but also on the clothes of the accused. This being the background, I hereby hold that the forensic evidence is compatible to the prosecution case and connects the accused Surender @ Kalwa, Vijay Pal and Virender with the offence.
Motive of the Crime/ Common Intention:
(91) The case of the prosecution is that all the accused persons namely Surender @ Kalwa, Vijay Pal and Virender @ Mintu were known to the deceased particularly Smt. Mridula Kishore and the motive of the crime was robbery. It is also the case of the prosecution that the accused Surender @ Kalwa was related to the deceased Smt. Mridula Kishore belonging to her native village and had even previously on 2728.1.2004 over night at their house. It has also been alleged that all the three accused have shared common intention to commit the robbery and the killings of Mridula Kishore, Rajesh Kishore and Ankit Kishore. (92) Before come to the testimonies of the various witnesses, I may observe that motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 98 best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(93) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (94) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused.
[Ref.: IV (2012) SLT 257].
(95) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 99 court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(96) Further, in so far as the common intention of the accused is concerned, Section 34 IPC has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 100 the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 101 As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some overt act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna. (97) Applying the settled principles of law to the facts of the present case it is evident that the first information received by the police was vide DD No. 20A at 7:18 PM which regarding murder and pursuant to the same when the police reached the spot it was revealed that the deceased Mridula was murdered by strangulation with the help of a Nara; Rajesh was murdered by cut throat injury and the child Ankit was also murdered by cut throat injury. The evidence on record shows the two brothers of the deceased Rajesh i.e. Magender Kishore and Kaushal Kishore were not at home at the time of the incident. Kaushal Kishore had left home in the morning at around 9:30 AM for his computer center and returned at 6:45 PM when he found that his brother Rajesh was lying in a pool of blood on a bed in drawing room with cut throat injury, his mother was lying on the bed with a string tied around her neck and in the adjoining room his nephew Ankit was also lying in a pool of blood with St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 102 cut throat injury. Within 15 minutes i.e. at about 7:00 PM Magender Kishore who had left the house in the morning for an interview, also reached the spot. Both the brothers were in a state of shock and raised an alarm when the neighbours gathered and they found knife lying near the body of Rajesh, ligature material around the neck of Mridula and Ankit with the cut threat injury lying on the floor. Smt. Mridula was the first who was rushed to the hospital by Kaushal Kishore thinking that there was possibility of saving her life whereas Ankit was immediately rushed to the hospital by PCR officials and Magender Kishore accompanied them to the hospital but both were declared 'Brought Dead'. It was then observed that the almirah in the house were broken and the jewellery boxes were lying empty on the bed and large number of articles were missing. The Crime Team who had reached the spot at about 8:15 PM confirms that they found the locker of the almirah broken and they also tried to lift chance prints from the spot and also took photographs of the same which are Ex.B1 to Ex.B15 which photographs confirm this fact that almirah had been broken and a large number of articles were lying scattered all over. Later, after the arrest of the accused persons the articles which were stolen from the house of the deceased were recovered from the possession of the accused and it is this which confirms the motive of the accused which was robbery. The deceased Mridula Kishore, Rajesh and Ankit were killed since the accused were all known to the victims and would have disclosed their identity. It further stands St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 103 established that the accused Surender @ Kalwa and Vijay Pal had even come to the house of the victims even prior to the date of incident i.e. 2728.1.2004 an aspect which has been disclosed by Jugal Kishore. The presence of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu at the house of the victims at the time of the incident has also been established. They were found in possession of the part of jewellery articles belonging to the victims and got recovered the remaining part of the jewellery articles from their respective houses pursuant to their disclosure statements along with the blood stained clothes (which they were wearing at the time of incident) confirmed by CFSL to be of victim. The incident in question is required to be taken as a whole. The main motive for the crime was robbery and the manner in which the accused had even previously come to the house of the victims and stayed over night on 2728.1.2004 i.e. almost a week prior to this ghastly incident of brutal killings, confirm the premeditation and preplanning on the part of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu. This coupled with the fact while robbing the jewellery / cash from the house of the victims they did not leave any person present in the house alive, least their identity would have been revealed as they were previously known to the victims which again confirms the common intention so attributed to the accused which common intention to kill developed at the time of the spot itself. This explains why the string / nara and kitchen were used for killing the deceased Mridula Kishore (who was already present in the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 104 house and extending courtesies to these accused and providing them meals), Ankit (who had returned from the school) and Rajesh Kishore (who at that time was sleeping on the bed in the same room where he was earlier working on his laptop). The entry to the house was friendly and there were no signs of resistance confirming that the victims were oblivious of the evil designs of the accused and were caught unawares. Hence, I hereby hold that there is ample material on record to prove that all the accused persons namely Surender @ Kalwa, Vijay Pal and Virender @ Mintu shared common intention and acted in consortium in inflicting fatal injuries resulting into death of Mridula Kishore, Rajesh Kishore and Ankit. The prosecution has been able to successfully establish that the motive and the common intention of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu was to commit robbery and to silence/ kill everybody who was in the house at the time of the incident and became aware of their presence. Ocular Evidence / Circumstantial Evidence:
(98) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately in the present case there is no ocular evidence or even last seen evidence and the entire prosecution case rests upon circumstantial evidence. The incident was discovered for the first time by Kaushal Kishore (PW9) at about 6:45 PM when he returned home from computer center and saw the dead body of his brother Rajesh Kishore St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 105 lying in a pool of blood on a bed in drawing room and when he entered the adjoining room he saw his mother Mridula Kishore lying on bed and one string (nara) was tied around her neck after which he went to the adjoining room and saw his nephew Ankit lying on the floor in a pool of blood. In the meanwhile Magender Kishore (PW8) also returned to his house and they removed Smt. Mridula Kishore and Ankit to hospital where they were declared brought dead.
(99) The star witness of the prosecution is Jugal Kishore (PW1) the husband of the deceased Smt. Mridula Kishore, father of Rajesh Kishore and grandfather of Ankit. He had last spoken to his wife Smt. Mridula Kishore on telephone when he was at his work place at Mathura Refinery. Jugal Kishore has explained that on 5.2.2004 at about 12:00 noon he made a telephonic call from Mathura to his wife at Delhi when she told that Surender @ Kalwa, Vijay Pal and Virender @ Mintoo had come to the house and she was cooking meal. Jugal Kishore has further explained that the accused Surender @ Kalwa belongs to the village of his inlaws whereas accused Vijay Pal and Virender are the relatives of the accused Surender @ Kalwa. According to him, his wife Smt. Mridula Kishore (deceased) further told him that since her meal was burning she will talk to him later. Thereafter at about 2:30 PM he again telephoned to his house but none responded. Jugal Kishore (PW1) explained that his emergency duty was fixed from 10:00 PM to 6:00 AM and hence he went on emergency duty and it was at 10:45 PM that his boss (M.S. Jatav St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 106 PW21) telephoned him and informed him that some mishappening had taken at his house at Delhi after which he boarded a bus from Delhi and reached his house at about 3:30 AM. The relevant portion of the testimony of Jugal Kishore (PW1) is as under:
"...... I am working at Indian Oil corporation at Delhi as Operation Officer. The incident pertains to 5.2.04. On 5.2.04 I was working in Indian Oil corporation Mathura as Operation Officer. On those day I used to visit Delhi at my house once in a week. At that time my wife Mridula, son Magender Kishore, Rakesh Kishore and Kaushal Kishore and grandson named Ankit were residing at my house at Delhi. At that time my house at Delhi was situated as House No. 131/H19, Sector7, Rohini. My grandson Ankit was son of Magender,the wife of Magender used to reside at Shivaji Enclave Extension at House No. 165C. There were differences in between Magender and his wife because of which the wife of Magender was residing at Shivaji Enclave. My son Magender had two sons, the elder Ankit used to reside at my house and the younger son Vaibhav used to reside with his mother. On 5.2.04 at about 1 noon I phoned to my wife who is at Delhi from Mathura. I talked to my wife on phone she told the back that Surender @ Kalwa, Vijay Pal and Virender @ Mintoo have come to house who are of her village and she is cooking meal. Surender @ Kalwa belongs to village of my inlaws whereas Vijay Pal and Virender were relatives of Surender @ Kalwa. My wife further told me that she will talk on telephone later on as the meal she was cooking was burning. Thereafter, at about 2:30 PM I again telephone at my house at Delhi but no one St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 107 responded. Thereafter, I came to my house and slept at my Mathura House. In the meanwhile my emergency duty was fixed from 10 PM to 6 AM and accordingly I went on my emergency duty at 10 PM. Then at about 10:45 PM my boss telephoned me that some mishappening had been happened at my house at Delhi and then I boarded a bus for Delhi and reached Delhi at my house at about 3:30 AM I identify Surender @ Kalwa, Vijay Pal and Virender @ Mintoo. The witness rightly identified the accused Surender @ Kalwa, Vijay Pal and Virender who are present in the Court. I found around my house, all my relatives were present. They narrated me 'ghatna' within half an hour. The 'ghatna' which was told to me that someone murdered my wife and son Rajesh and grandson Ankit. My grandson Ankit was about 9 years at that time. After hearing this incident I became unconscious. I was consoled by my relatives and when I became conscious I found the locker of almirah kept in a bed room were broken and found the empty jewellery boxes lying on bed. When I checked the another almirah I did not find anything, wherein I had kept Rs.40,000/ in cash approximately and some jewellery consisting four golden kangan, one bangle, one necklace, one golden chain, four pairs of tops, one Om of gold in a black thread and four bangles of silver having golden polish, one silver chain polished in gold, one artificial mangalsutra. One kara of brass ladies were found missing. Police met me and enquired from me. My statement was recorded on 7.2.2004. I identified the dead bodies of my wife Mridula, son Rajesh and grandson Ankit at Sanjay gandhi Hospital. Myself and my brother Kiran Babu had identified the dead bodies. The identification of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 108 statement of dead body of Mridula is Ex.PW1/A which bears my signature at point X. Identification statement of Rajesh is Ex.PW1/B which bears my signature at point X. the identification statement of dead body of Ankit is Ex.PW1/C which bears my signatures at point X. I had obtained dead bodies of my wife, son and grandson on 6.2.04. I cremated the dead bodies. I do not remember as to what other proceedings were done in my presence in this case. I can identify the jewellery items if shown to me......."
".........It is correct that I told to the police in my statement dated 7.2.04 to the effect that Surender @ Kalwa and Vijay Pal accused had stayed during the night of 2728.1.2004 at my house at Delhi. It is correct that IO recorded my statement on 23.2.2004 to the effect that I attended the Court of Sh. Manoj Kumar Nagpal, MM on 23.2.04 where I identified my jewellery items out of mixed jewellery items. It is correct that on that day I identified the jewellery items today shown to me before Sh. Manoj Kumar Nagpal MM.
At this stage, Addl. PP seeks permission of the court for opening the yellow envelope having seals of MKN containing TIP report. Heard. Allowed. The same is opened out of which TIP report totally three pages taken out and tagged with the judicial file. The application for conducting TIP of jewellery ornaments moved in the court of Ld. MM is Ex.PW1/D which bears my signature at point X. the TIP report is Ex.PW1/E which bears my signature at point Y....."
".... It was 12 noon on 5.2.2004 when I telephoned my wife from Mathura. The name of the accused identified by me in the Court is Virender @ Mintoo and not Vijender. I did not say the word 'another' while talking about almirahs and the word 'anything' but stated 'cash St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 109 and jewellery'. The amount I kept was Rs.20,000/ and not Rs.40,000/. My statement was recorded on 23.3.2004 and not on 23.2.2004 as is recorded at page 5 of my deposition dated 8.12.2004. (Ld. Counsel for accused number 1, 2 and 3 have objected for introducing these new materials in reexamination and the Ld. APP submits that there are not all new materials but are only typographical errors. After going through Section 138 of the Evidence Act, this Court is empowered to allow the reexamination even with regard to the new matter and considering the say of this witness, this matter is allowed which is partly clarificatory and most of them being typographical errors. However, considering the introduction of these matters, all the accused are given an opportunity for crossexamination only on these aspects....."
(100) Jugal Kishore has been exhaustively crossexamined wherein he has explained that his boss did not inform him about the telephone call from Delhi and only asked him to go to his house. He has further explained that his boss had taken the phone number of his friend who was residing with him at Delhi. He has further stated that his boss had not disclosed about the murders at his house at Delhi and only advised him to rush to Delhi and it was his room mate namely Chetan Dass Kabir who had accompanied him to Delhi. He has also explained that he had tried to contact at his house at Delhi on telephone on 7:007:30 PM but there was no response from his house. He has further explained that he left Mathura at 10:45 PM and reached his house at Delhi on the next day at about 3:30 AM where he found his relatives gathered St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 110 and on hearing the incident he was shocked and perplexed (Hakka Bakka) but not totally unconscious. It is this which explains why he made his first statement to the police on 7.2.2004, it was because three members of his family had been brutally murdered and he was in a state of shock and was also busy in performing their last rites etc. Jugal Kishore (PW1) has further explained that the accused Surender @ Kalwa and Vijay Pal had stayed in their house on the night of 2728.1.2004 since he was also present at his house on that day. In his first statement to the police dated 7.2.2004 under Section 161 Cr.P.C. Jugal Kishore has mentioned about the fact that his wife had informed her that the accused Surender @ Kalwa, Vijay Pal and Virender had come to their house but he did not mention this fact that his wife was cooking meal at that time and that she told him that she would talk to him later as the meal was burning. However, this improvement will not be fatal to the case of the prosecution since the material fact regarding the presence of the accused at his house as informed to him by his deceased wife, was given by him to the police at the first instance and it is this which explains how the accused Surender @ Kalwa, Vijay Pal and Virender became suspects and the Investigating Agency was led to them. Otherwise, there could not have been breakthrough in the case being virtually a blind case. But for this lead the case would not have been cracked. Had it not been for this call made by Jugal Kishore to Mridula Kishore who informed him of the same, none would have come to know about the presence of the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 111 accused in the house of the deceased since neither the accused are residents of Delhi nor close relatives not frequent visitors. The accused are all residents of Uttar Pradesh (Bullandshahar and Ghaziabad) and had no business to be present in the house of the victims. Nobody had any inkling about their presence in the house of the victims and their involvement in the offence would have gone totally undetected had it not been for this one telephone call which Jugal Kishore had made to Mridula Kishore who hurriedly informed him of their presence being unaware of the lurking danger and it is this which led to the cracking of the case. There is no reason to disbelieve the testimony of Jugal Kishore in this regard in view of the huge recovery of stolen jewellery articles and belongings of the victim family from the possession of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu immediately two - three days after the ghastly killings.
(101) The testimony of Jugal Kishore (PW1) finds due corroboration from the testimony of his boss namely M.S. Jatav (PW21) who has explained that on 5.2.2004 Jugal Kishore was on duty at Mathura Refinery as Operation Officer and did A Shift (6:00 AM to 2:00 PM), B Shift (2:00 PM to 10:00 PM) and C shift (10:00 PM to 6:00 AM). He has further stated that at about 10:45 PM, he informed Jugal Kishore through intercom and asked him to reach his home at Delhi as somebody was St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 112 seriously sick in the family and he should immediately rush to Delhi. He has explained that he was watching Zee News on that day and it was around 10:00 or 10:30 PM when the news of this brutal incident was being flashed and the name plate of Jugal Kishore on his house at Delhi was depicted in the said news clips and though the news reader was not specifically taking name of Jugal Kishore but the name plate on the said house bearing the name of Jugal Kishore was being displayed. (102) Ld. Defence Counsel has vehemently argued that there is no direct credible evidence against the accused and there are numerous missing links and therefore under the given circumstances not much reliance can be placed on the testimony of Jugal Kishore. He has submitted that the electronic record in the form of Call Details Records from BSNL is not complete and authentic and the prosecution case does not find due support from the same.
(103) I have considered the submissions made before me. At the very outset, in so far as the electronic record of BSNL in respect of the telephone numbers installed at the house of Jugal Kishore is concerned, Balbir Singh (PW18) has categorically explained that the call details pertaining to the period 5.2.2004 between 11:30 AM to 12:30 PM had been corrupted due to some technical fault of software in routine due to which reason it could not be provided to the Investigating Officer. In view of the fact that a valid explanation is forthcoming no adverse inference can be drawn against the prosecution for the same. Further, in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 113 so far as the witness Jugal Kishore (PW1) is concerned, it is evident from the record that there is no history of previous animosity between the accused and Jugal Kishore or his family. Rather, on the contrary the accused Surender @ Kalwa and Vijay Pal had been known to the family and were related through the deceased Mridula and belonged to her village who had even previously on 2728.1.2004 (a week before the incident) enjoyed the hospitality of the family when they had come to the house of Jugal Kishore and stayed there overnight. In fact, this aspect that the accused had visited the house of the deceased on the fateful day was unknown to all except those who were present in house i.e. the three victims who had been killed. The relationship of the accused with the deceased Mridula Kishore was not so close and they were not frequent visitors that anybody could have even remotely contemplated or guessed their involvement in the crime, unless it was told to Jugal Kishore by some one. The question which then arises is, who is this someone who informed Jugal Kishore about the presence of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu at their house? Well, it is this answer which is forthcoming in the statement of Jugal Kishore. He has explained that it was his wife, the deceased Mridula Kishore who told him about the same on telephone when he had made a call to his home thereby establishing that this some one was none else than his wife the deceased Smt. Mridula St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 114 Kishore. In his testimony Jugal Kishore explains that during the day when he called up his house from Mathura where his was posted, his wife Mridula told him that the accused Surender @ Kalwa, Vijay Pal and Virender had come and she was in a hurry as she was cooking meals for them and hence could not speak to him and it is this which explains the manner in which Jugal Kishore came to know about the presence of accused Surender @ Kalwa, Vijay Pal and Virender at this house and there was no other way Jugal Kishore could have come to know of the same. I find his testimony credible to this extent. Further, the accused were persons who enjoyed the trust of the deceased Smt. Mridula and her family having close association with them. They were aware that her husband was working and staying at Mathura and would not be at home during the week days. They were also aware that her grownup sons would be away during the day for their work and grandson would be in school while she would be alone. But as destiny would have it, Rajesh the son of Mridula was also at home on the fateful day working on his Lap top (which Laptop is seen in an open condition in the photographs of the scene of crime on the table adjoining the bed where his dead body was found). It is writ large that the body of Rajesh was found on the bed / Diwan kept in the same room adjoining the table where the laptop is seen and it leads me to infer that after having taken his food (postmortem report confirms the presence of digested food in the stomach) he was working on this Laptop (which was lying in the open condition as seen in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 115 the photograph) after which Rajesh slept on the bed / Diwan adjoining this table where he was working and it is there that he was killed while he was in sleep (there being no signs of resistance). This presence of Rajesh in the house is something which the accused did not contemplate and apparently delayed the implementation of their plan of robbery as a result of which the child Ankit also returned from the school in the meanwhile and was killed (the child was still in school uniform including his blazer when he was killed and his postmortem report confirms the presence of undigested food in the stomach showing that he had just taken his meals). The circumstantial evidence confirms that the entry of the accused in the house of Jugal Kishore was friendly and perhaps it was for this reason that there was no alarm and even the neighbours were unaware of the tragic happenings. Circumstantial evidence also establishes that there were no signs of resistance showing that the victims were oblivious of the evil designs of the accused and were caught unawares. (104) Further, the postmortem reports Ex.PW11/A to Ex.PW11/C show that the postmortem examination on the dead body of deceased Ankit was conducted on 6.2.2004 at 2:00 PM; on the dead body of deceased Mridula Kishore it was conducted at 3:00 PM and on the dead body of deceased Rajesh the postmortem examination started at 4:00 PM and the time of death was opined as 24 hours, thereby showing that the incident must have occurred between 2:00 PM to 4:00 PM on 5.2.2004. This lends credence to the testimony of Jugal Kishore (PW1) St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 116 when he stated that initially at about 12:00 Noon he had spoken to his wife Smt. Mridula Kishore who informed him that Surender @ Kalwa, Vijay Pal and Virender had come to their house and she was cooking meals for them. He also states that thereafter at about 2:30 PM when he again telephoned at his house nobody responded. This must have been the time when the incident / crime was being given shape. (105) This being the background, I hereby hold that the testimony of Jugal Kishore (PW1) is credible, reliable and trustworthy. In the instant case there is a proximity between the presence of accused persons namely Surender @ Kalwa, Vijay Pal and Virender at the house of the victims (as established from the testimony of Jugal Kishore which testimony has been found to trustworthy and truthful in this regard) and the time of death of the deceased in as much as the deceased died on 5.2.2004 between 2:00 PM to 4:00 PM. The accused Surender @ Kalwa, Vijay Pal and Virender have failed to explain when they parted company with the deceased persons and where and when this aspect was put to the accused Surender @ Kalwa, Vijay Pal and Virender in their statements under Section 313 Code of Criminal Procedure they simply denied their presence at the house of the deceased, leave alone, explaining the time when they parted company. The accused Surender @ Kalwa, Vijay Pal and Virender @ Mintoo are the best persons who could have offered an explanation how they came into possession of the jewelery articles belonging to the deceased victims which went missing during the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 117 incident, and under the given circumstances the onus would shift upon the accused to this extent. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience (an aspect which is being discussed separately herein under).
(106) Circumstances do not err and in the present case they clinchingly point to the hand of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu in the murders of Mridula Kishore, Rajesh and Ankit. The crime was cleverly preplanned and committed in a brutal and diabolical manner and all the three inmates present in the house at the time of the incident have been brutally killed. The cruel tendency of the accused is reflected from the manner of the attack and confirms their determination to kill all the members in the house so that none should remain to expose their ghastly crime which they committed in order to take away the valuables of the house (as already discussed herein above). (107) In view of the above, I hereby hold that the presence of the accused Surender @ Kalwa, Vijay Pal and Virender in the house of the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 118 victims where at the time of the incident Smt. Mridula Kishore, Rajesh Kishore and Ankit Kumar were present lends credence to the version of the prosecution, which coupled with the recovery of stolen articles from their possession / at their instance (discussed later), is a fact which is highly determinative of the guilt of the accused Surender @ Kalwa, Vijay Pal and Virender.
Presence of digested/ semidigested / digested food in the bodies of the victims:
(108) The case of the prosecution is that when Jugal Kishore (PW1) the husband of deceased Mridula Kishore called her up at 12:00 Noon from Mathura, she was cooking food for the accused stating that they had come from the village and that the food she was cooking was burning and she would talk to him later. In this regard the prosecution in addition to the testimony of Jugal Kishore (PW1) have placed their reliance on the postmortem reports of the deceased which support his testimony.
(109) I have gone through the postmortem reports of the deceased which are Ex.PW11/A, Ex.PW11/B and Ex.PW11/C which show that semidigested food was found in the stomach of deceased Mridula Kishore; undigested food was found in the stomach of deceased child Ankit and digested food was found in the stomach of deceased Rajesh Kishore. This shows that the deceased child Ankit Kishore had St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 119 just taken his lunch which had not been digested by the time when he was killed whereas the presence of semidigested food in the stomach of deceased Mridula Kishore shows that she had taken her meals prior to Ankit. It shows that probably after preparing the meals before Ankit returned from the school Mridula had already taken her lunch. (110) Further, the presence of digested food in the stomach of deceased Rajesh Kishore indicates that he had taken his meals much prior to Mridula Kishore and Ankit which must have been three to four hours prior to the incident and leads me to infer that he had not taken his lunch and the presence of digested food in his stomach shows that he had only taken his breakfast which was threefour hours prior to his killing. In fact, the circumstantial evidence in the form of the photographs and the manner in which his dead body was found on the bed / Diwan in the room where he was working on the Laptop (which Laptop is seen in the open condition in the photographs) indicates that he was killed while he was in sleep and that explains the absence of any signs of resistance at the scene of crime particularly in the room where the body of Rajesh was found.
These findings in the postmortem reports regarding the presence of digested/ semidigested and undigested food is compatible to the circumstantial evidence which has emerged and the prosecution version and independently corroborates the oral testimony of Jugal Kishore (PW1).
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 120 Arrest of the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu and Recovery of stolen articles pursuant to their disclosure statements:
(111) The case of the prosecution is that the husband of the deceased Mridula Kishore namely Jugal Kishore expressed his suspicion over Surender @ Kalwa, Virender and Vijay Pal and also informed the police that accused Surender belonged to the village of his deceased wife i.e. village Saleempura, Police Station Kakor, Distt. Bulandshahar, U.P. On this the Investigating Officer along with his staff went to said village where he came to know that all the three accused had visited the said village but had left for village Pachota, District Bullandshahar of accused Vijay Lal. Thereafter the police party went to village Pachota where they came to know that all the three accused persons had come for some time but left for village Sara, District Ghaziabad, U.P. Niwari but there also all the three could not be found. However, they came to know that the accused persons were talking to each other of going to Delhi.
Information was gathered from the relatives of accused persons about the places of their relatives at Delhi i.e. village Khera Kalan, New Mangla Puri, Mangol Puri and village Dhirpur. Thereafter the police party came back to Delhi and on 8.2.2004 a raiding party was organized after which they first visited village Khera Kalan, where two sisters of accused Surender @ Kalwa namely Meena and Kavita were residing. On inquiry, the sisters told him that all the three accused persons had come to their residence but had left and probably the accused persons would go to New St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 121 Mangla Puri as their third sister namely Mukesh was residing. The police party then went to New Mangla Puri where they came to know that accused persons had come but left after sometime probably for Mangol Puri where the cousin sister of the accused Surender namely Chandra was residing. Thereafter the police party went to Mangol Puri and visited the house of Chandra but the accused persons were not found as they visited for some time and had left probably for village Dhirpur near Mukherjee Nagar, where aunt (bua) Shakuntla of accused Surender @ Kalwa was residing and it also informed by Chandra that the accused persons were talking to visit village Khera Kalan at around 78 PM. Pursuant to the same the police party went to village Dhirpur where accused persons were not present and the Investigating Officer came to know that they visited the said house but had left. Thereafter, the police party reached at GT Karnal byepass Delhi and started checking the vehicles. During checking all the three accused persons were apprehended under suspicion and when they were asked as to where they were going they told that they were going to village Khera Kalan. The accused persons were made to alight from the bus and were interrogated deeply during which they confirmed their names and addresses.
(112) The case of the prosecution is that the accused Surender @ Kalwa was holding a black colour rexine bag in his hand and on checking it found to contain one credit card of ICICI Bank in the name of Jugal Kishore, cash amount of Rs.10,050/, two screw drivers having green St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 122 colour plastic handles and 85 coins of one rupee each lying in a small cloth bag. On inquiry the accused Surender disclosed that the credit card, cash and coins were part of the robbed articles and also disclosed that the screw drivers were used in breaking the lock of locker of Almirah. Further, the accused Vijay Pal of his own produced one earring, one hexagonal shape locket of golden colour having OM engraved on it and disclosed that the articles were also robbed in the incident of the present case. The accused Virender @ Mintu produced one pair of golden colour ear tops from his pant pocket which tops were having design of four leaves engraved on it with red and green colour and disclosed that these articles were stated to be part of the said robbed articles. Thereafter all the accused persons were arrested and their disclosure statements were recorded which are Ex.PW15/A, Ex.PW15/B and Ex.PW15/C. (113) On 10.2.2004 Inspector Krishan Kumar (PW14), SI Daya Nand, HC Rajbir, HC Vijender, HC Naresh and fivesix Constables along with the accused persons went to Ghaziabad. The accused Virender led the police party to his house in village Sara, District Ghaziabad where there was a small room in the house and one iron box was lying there from where the accused had taken out two kangans of gold, two bangles in golden colour, one earring in golden colour, one chain in golden colour, one grey colour pant with blood stains and one grey colour shirt with blood stains, which were seized vide memo Ex.PW14/A. Thereafter the accused Surender @ Kalwa led the police party to Village St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 123 Saleempura, Bulandshahar, U.P. where he (accused) took them to his house and from an iron box lying in one room of the house the accused got recovered the necklace of golden colour, one grey colour pant and one light brown colour shirt both having blood stains, which were taken into possession vide memo Ex.PW14/B. Further, the accused Vijay Pal led the police party to his village Pachoda, District Bulandshahar, U.P. and pointed out one iron box was lying under a Chhappar outside the place where the animals were kept and the accused Vijay took out jewelery items i.e. pair of kangan, pair of bangles, one mangalsutra, one small chain, one earring, and one jhumka of ear, all in golden colour, one light green colour pant having blood stains and one pullover of black colour from that box, which articles and clothes were taken into police possession vide memo Ex.PW14/C. (114) The Ld. Defence Counsels have vehemently argued that the accused persons have not made any disclosure statements nor they pointed out any place and the various jewellery articles have been planted upon the accused persons only to connect them with the present case. On the other hand, the Ld. Addl. PP for the State has argued that the jewellery articles belonging to the deceased / family have been got recovered by the accused persons pursuant to their disclosure statement and hence their disclosure statements are admissible in evidence. (115) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 124 is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(116) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(117) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 125
(118) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (119) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 126 Committee considered S. 27 of the Indian Evidence Act, as under: ".......Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 127 This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(120) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 128 discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 129 about other parts of the evidence.
(121) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence....."
(122) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 130 kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(123) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 131 confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
(124) Applying the settled principles of law to the facts of the present case it is evident that in so far as the theft of the jewellery articles is concerned, this fact is borne out from the first statement made by Jugal Kishore (PW1), Magender Kishore (PW8) and Kaushal Kishore (PW3) to the police and hence cannot be doubted. In fact Jugal Kishore (PW1) has proved having given the details of the stolen articles to the police. I may further observe that the jewellery items so recovered from the possession of the accused persons or at their instance, were subjected to Judicial Test Identification Parade which proceedings are Ex.PW1/E wherein Jugal Kishore has identified the jewellery articles belonging to him i.e. two gold kangans which are Ex.P1; two silver bangles polished in gold which are Ex.PW2; one artificial mangalsutra which is Ex.P3; one bali which is Ex.P4; one gold jhumka which is Ex.P5 (Ex.P1 to P5 were got recovered by the accused Vijay Pal); one golden necklace to be of his deceased wife which is Ex.P6 (got recovered by the accused Surender @ Kalwa); golden chain which is Ex.P7; two golden ear tops which are Ex.P8; two gold kangans which are St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 132 Ex.P9; one gold bangle which is Ex.P10; two single bangles of silver duly golden polished which are Ex.P11; one brass kara which is Ex.P12 to be his own; two golden ear tops which are Ex.P13; golden Om which is Ex.P14 and gold bali which is Ex.P15 (Ex.P7 to Ex.P15 were got recovered by the accused Virender @ Mintoo).
(125) It was not within the knowledge of the Investigating Agency as to where the jewellery items were hidden by the accused persons. It was only pursuant to their disclosure statements that the accused persons, wherein they stated that they could get recovered the jewellery articles, that the details of the same came to be known. It is this which is discovery of the relevant fact and it was only pursuant to their disclosure statements that the accused persons got recovered the jewellery articles. Further, the it was already within the knowledge of the Investigating Agency that the locker of the almirah of the deceased Mridula Kishore was broken, but how the said locker was broken and with which instrument, was not within the knowledge of the Investigating Agency. It was only pursuant to the disclosure statement of accused Surender @ Kalwa that the Investigating Agency came to know that two screw drivers were used for breaking open the locker of the almirah, which screw drivers (Ex.P18) were recovered from the bag carried by the accused Surender @ Kalwa. This is disclosure of fact as contemplated under Section 27 of the Evidence Act and is admissible in evidence. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 133 (126) The accused Surender @ Kalwa also got recovered one cream colour pant and grey colour shirt having blood stains which are Ex.P19 and Ex.P20; the accused Virender @ Mintoo also got recovered grey colour pant and shirt having blood stains which are Ex.P16 & Ex.P17 and the accused Vijay Pal got recovered white coloured pant having blood stains which is Ex.P18. This again is discovery of fact as contemplated under Section 27 of the Evidence Act and otherwise connected the accused with the offence as forensic report Ex.PW19/F establishes that the blood of deceased Rajesh as of 'A' Group which blood group (AGroup) was detected on the clothes of the accused Vijay Pal and Virender and the pant of the accused Surender @ Kalwa showed positive results for human blood.
(127) The accused are the best persons who could have offered an explanation with regard to the possession of jewellery articles belonging to the complainant and the presence of blood on their clothes (particularly of the same blood group as of deceased Rajesh) on their clothes without any difficulty and the onus under these circumstances would shift upon the accused and not on the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 134 which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.
(128) The recovery proceedings have been duly proved by Inspector Krishan Kumar (PW14) whose testimony finds due corroboration from the testimony of HC Rajbir Singh (PW15). An argument has been advanced regarding failure of the police to join public witnesses despite availability and I may observe that time and again it has been stressed that police officers are competent witnesses. Joining of public witnesses is only a Rule of Caution/ Prudence and not a Rule of Law. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133.
(129) It was observed by Hon'ble High Court that reluctance of th e citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in the case of Manish Vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State, St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 135 AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
(130) Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of jewellery at the instance of accused persons. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State reported in (1996)3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs. The State of Saurashtra reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. (131) The accused Surender @ Kalwa, Vijay Pal and Virender have failed to explain as to how the jewellery articles belonging to the complainant / his family were recovered from their possession and how the blood stains of deceased Rajesh Kishore came on their clothes. What St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 136 turns on the fact that accused Surender @ Kalwa, Vijay Pal and Virender pointed out the places where they had hidden the robbed jewellery articles and thereafter got recovered the huge part of the robbed jewelery items, which places were not in the knowledge of the police previously. The fact that the accused persons pointed out the said places and got recovered the jewellery articles belonging to the complainant and his family, is a strong pointer towards the guilt of accused Surender @ Kalwa, Vijay Pal and Virender.
(132) The prosecution has been able to successfully establish a very strong circumstance through the testimonies of police witnesses Inspector Krishan Kumar (PW14) and HC Rajbir Singh (PW15) that the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu were in possession of the part of jewellery belonging to the victims which were found missing immediately after the murders of Mridula Kishore, Rajesh Kishore and Ankit were detected and had hidden the remaining part of the said jewellery in their respective houses. The jewellery articles recovered from the possession of the accused persons have been duly identified by Jugal Kishore (PW1) during the Judicial Test Identification Parade which is Ex.PW1/E duly proved by Ld. MM Sh. Manoj Kumar Nagpal (PW17). In addition to the above Test Identification Parade proceedings the testimony of Jugal Kishore in the Court also confirms the identity of the said stolen jewellery articles and it stands established that the jewellery recovered from the possession of the accused and at their instance St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 137 actually belongs to the victims. The discovery of these articles being made pursuant to the disclosure statements made to the Police are admissible in evidence in view of Section 27 of Evidence Act immediately within two days of the incident. The accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu in their statements under Section 313 Cr.P.C. failed to explain as to how and under what circumstances they got the possession of the ornaments and articles belonging to the victims. Hence, an inference is being be drawn that the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu must have looted the jewellery from the victims and that they must have committed the murder and in this regard I am supported by the view taken by the Hon'ble Apex Court in the case of Praveen Kumar Vs. State of Karnataka reported in 2003 (12) SCC 199.
Scene of Crime was disturbed soon after the incident:
(133) The case of the prosecution is that first of all Kaushal Kishore had returned back to his house at about 6:45 PM when he found his brother Rajesh Kishore lying in a pool of blood on a bed in drawing room and his throat was slit. Then he raised an alarm and entered adjoining room where he saw that mother lying in a pool of blood on the bed and around her neck one string had been tied. Thereafter he went into the adjoining room where he saw that his nephew Ankit was lying in a pool of blood on the floor and there were injury marks on his neck. He St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 138 came out of his house while crying and in the meanwhile his elder brother Mangender Kishore also came to the house. The case of the prosecution is that thinking Smt. Mridula was alive Kaushal Kishore took her to BSA Hospital and Ankit was also shifted to the hospital by Magender Kishore where they were both declared 'Brought Dead'. (134) It is also the case of the prosecution that when the Crime Team members reached the spot, they tried to lift the chance prints from the spot of incident. ASI Madan Gautam (PW12) has proved that he inspected the spot and lifted four finger prints from the locker in an iron almirah and submitted his report which is Ex.PW12/A. He has also proved having developed the four chance prints by using florescent powder in UV light/ crime scope machine. The Investigating Officer has proved having obtained the report from Finger Print Bureau which is Ex.PW19/D according to which no opinion can be given regarding the finger prints. In this regard I may observe that after the incident the Scene of Crime had been disturbed because a large number of relatives and neighbours had come to the spot and in an attempt to provide the victims with immediate medical attention, Kaushal Kishore and Magender Kishore had shifted Smt. Mridula Kishore and Ankit to the hospital. The first attempt of any person under the given circumstances would be to provide medical help to victims and not to wait for the police to come to the spot. Hence, under the given circumstances whatever happened at the spot at that time i.e. an alarm being raised and large St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 139 number of neighbours entering the house and shifting the victims to the hospital, was only natural and probable resulting into loss of vital evidence in the form of finger prints / chance prints. The testimonies of Magender Kishore and Kaushal Kishore confirm that a large number of neighbours / relatives had entered the house and hence it is only natural that there could have been a number of finger prints not matching with family which explains the reason why no opinion could be given on the chance prints by the experts and no benefit can be given to the accused for the same.
Contradictions and Discrepancies:
(135) The Ld. Defence Counsels have pointed out the various discrepancies and contradictions in the testimonies of the prosecution witnesses. It is submitted that there are serious infirmities in the statement of Jugal Kishore u/s. 161 Cr.P.C., examination in chief and his crossexamination with respect to time and place of alleged telephonic calls made by Jugal Kishore (PW1). It is further submitted that in his statement under Section 161 Cr.P.C. Jugal Kishore made a bald statement that on 5.2.2004 he made a telephonic call from Mathura to Delhi at 12:00 Noon whereas in his examination in chief he stated that he made the telephonic call at 1:00 PM but in his crossexamination he tried to put a new thing by saying that after finishing his work, he got down on the way at 2:30 PM and made call from STD. It is pointed out as per the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 140 official record proved by DW2, Jugal Kishore (PW1) was present on duties from 6:00 PM to 10:00 PM where admittedly there was no facility of making telephonic calls. Further, it is submitted that the testimonies of Jugal Kishore (PW1) and M.S. Jatav (PW21) are totally contradictory to each other and the averments made by PW21 have not been uttered by Jugal Kishore (PW1). It is also submitted that Jugal Kishore (PW1) has not stated at any point of time that he took one hour short leave from M.S. Jatav (PW21) at about 11:30 AM during A Shift for looking after his friend who was sick and residing in his room (no such friend has been examined nor any medical document has been placed on record). Ld. Counsel has also argued that it is not the case of Jugal Kishore (PW1) that he again visited the said friend at 2:00 or 2:30 PM and also to change his shirt and came back after one hour during B shift or that he had left the duty twothree hours before 10:00 PM as a general practice, as claimed by M.S. Jatav (PW21). It is argued that the prosecution witnesses have given contradictory, unsupported and uncorroborated testimonies with regard to the telephonic calls and at every stage there are contradictions and improvements. It is further pointed out that Inspector Krishan Kumar (PW14) has stated in his examination in chief that Inspector Ram Chander (PW20) was interrogating the accused persons in his presence and the accused made their disclosure statements which were reduced into writing by Inspector Ram Chander whereas in his crossexamination Inspector Krishan Kumar has completely changed his stand and stated St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 141 that the accused persons had not made their disclosure statements in his presence nor it was recorded in his presence. It is further pointed out that as per Jugal Kishore (PW3) he reached his house in Delhi at about 3:30 AM whereas according to Kaushal Kishore (PW9) his father reached the house at about 12:00 midnight. The Ld. Defence Counsel has also argued that Jugal Kishore (PW1) resiled from his previous statement given to the Police on the important aspects of staying of accused persons during the night of 2728.1.2004; recording of his statement on 23.03.2004 qua identification of articles in TIP and TIP proceedings related to the jewellery articles by Ld. MM. It is argued that benefit of the above contradictions and discrepancies in the testimonies of the prosecution witnesses is liable to be given to the accused persons. (136) On the other hand the Ld. Addl. PP for the State has vehemently argued that the contradictions so pointed out by the Ld. Defence Counsels are immaterial and would not go to the root of the prosecution case and the material evidence has come on record. (137) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: "....In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like......... St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 142
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." (138) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(139) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 143 Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(140) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(141) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 144 Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 145 from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 146 to make very precise or reliable estimates in such matters. Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (142) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 147 AIR 2009 SC 3690).
(143) Applying the settled principles of law to the facts of the present case, I may observe that in so far as the witness Jugal Kishore (PW3) is concerned, he has lost three members of his family i.e. his wife Mridula Kishore, son Rajesh and grandson Ankit aged about 9 years who was still in the school uniform at the time of the incident and establishing that he had just returned from the school when the incident took place. I may mention that the powers of observation differ from person to person and what one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. This explains the contradictions in the testimony of Jugal Kishore and his son Kaushal Kishore. Further, the Court cannot loose sight of the fact that Jugal Kishore and his sons Kaushal Kishore & Magender Kishore had lost three members of their family in this brutal incident which came as a shock to them. They were so overtaken by the sudden events which they could never have anticipated, that it is not expected of them to have remembered the exact details of the spot or of the sequence of events. Jugal Kishore has explained that on coming to know of the incident he had become unconscious and regained his senses much later. The trauma that these witnesses must have faced is something which is only natural and of which no formal proof is necessary. Under the similar circumstances, it is difficult to expect his mental faculties to be attuned to absorb minute details. The loss for the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 148 family is great and unexpected and it takes time for even the realization of what has happened to sink in. Further, it is writ large that the witnesses particularly Jugal Kishore has been subjected to a sustained cross examination. Given his mental condition and the piercing cross examination made by Ld. Defence counsels and the Court atmosphere the possibility of his getting mixedup with facts, get confused regarding sequence of events out of nervousness and anxiety cannot be ruled out. (144) Further, in so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time, storeys of the house of the accused etc., I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436). This being the background, I hereby hold that the contradictions and discrepancies so St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 149 pointed out by the Ld. Defence Counsels would not be fatal to the prosecution case. Even otherwise, assuming that the Investigating Agency has not been as professional while investigating the case as it ought to have been and has committed certain lapses during the investigations of the case, even then the same would not assist the accused in any manner once the Court is satisfied with the regard to the reliability of the evidence which has come on record. Time and again the Hon'ble Apex Court while dealing with the cases of omission and commission, enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. [Ref.: Paras Yadav Vs. State of Bihar reported in AIR 1999 SC 644, Zahira Habibullah Sheikh & Anr. Vs. State of Gujarat & Ors. reported in 2006 (3) SCC 374 and Dayal Singh & Ors.
Vs. State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012].
(145) With the passage of time, the law as it now stands developed and the dictum of the Court emphasized is that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 150 the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
Defence of Accused:
(146) In their defence the accused Virender @ Mintoo has examined his uncle / Tau namely Onkar (DW1), the accused Vijay Pal has examined his real brother Ajay (DW3) and the accused Surender @ Kalwa has examined his brother in law / Jija namely Karan Singh (DW4).
They have also relied upon the information obtained under RTI Act which is Ex.DW2/B showing that Jugal Kishore was present in his duties from 6:00 AM to 10:00 PM where there was no facility of making telephonic calls. Ld. Defence Counsels for the accused have argued that M.S. Jatav is a planted witness who is an interested witness being the senior officer / controlling officer of Jugal Kishore, since in the RTI reply there is no mentioning of any leave taken by Jugal Kishore.
(147) I have considered the submissions made before me and also gone through the testimonies of the various defence witnesses and the RTI reply so relied upon by the accused persons. In so far as the family members / relatives of the accused persons are concerned they are all interested witnesses and there is no independent corroboration forthcoming to their testimonies and hence their testimonies are liable to be discarded.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 151 (148) In so far as the RTI reply Ex.DW2/B is concerned, I may observe that reply to an RTI query is not a primary evidence in itself unless the contents have been proved in accordance with law which the accused have not done. Having said that, I may however observe that it is evident from these very RTI replies so relied upon by the accused that there is no landline telephone facility at Mathura Refinery and there was only an incoming intercom facility, which reply in fact lends credence to the testimony and version given by M.S. Jatav (PW21) to the effect that he had informed Jugal Kishore regarding some mishappening through intercom. This also explains why Jugal Kishore had made a call from the STD Booth rather than from his own office. Further, with regard to the aspect of short leave taken by Jugal Kishore, a valid explanation is forthcoming from the testimony of M.S. Jatav (PW21) who has explained that on 5.2.2004 Jugal Kishore took one hour leave from him at about 11:30 AM during AShift for looking after his friend, who was sick and was residing in his room no. 5/22, at Township area of Mathura Refinery after which he (Jugal Kishore) came back. He has explained that the duty done by Jugal Kishore in CShift on 5.2.2004 was not mentioned/ planned as per roaster as it was an emergency duty and the official as per roaster fell sick on that day. I may observe that the incident which took place was most brutal requiring the immediate presence of Jugal Kishore at his residence there being an emergency. The attempt of M.S. Jatav (PW21) was to ensure that Jugal Kishore reaches his house as soon as possible. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 152 This act of M.S. Jatav is natural and probable. Any responsible officer in his position would have done the same. M.S. Jatav has further explained that he had seen the news being flashed on a News Channel where the camera was focusing on the name plate of Jugal Kishore and the news Reader / Anchor was saying that he (i.e. owner of the house) was employed at Mathura Refinery on which he could connect the incident with the family of his subordinate Jugal Kishore after which he immediately informed Jugal Kishore on intercom telephone and asked him to rush to his home as there was an emergency. He also ensured that somebody should accompany him and it was Chetan Dass Kabir who accompanied Jugal Kishore. This aspect has not been controverted. Under the given circumstances it was only natural for Jugal Kishore to have rushed to his house without making any entry or moving a formal application for leave. M.S. Jatav (PW21) is not an interested witness and is not related to Jugal Kishore in any manner. He has deposed in his official capacity and there is no reason to disbelieve his testimony. This being the background, I hereby hold that the RTI reply Ex.DW2/B would not be fatal to the prosecution case once the senior officer / controlling officer of Jugal Kishore has deposed in the Court validly explaining the emergent circumstances.
Charges Established against the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu:
(149) In view of my above detailed discussion, I hereby hold that St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 153 the prosecution has been able to prove and substantiate the allegations against the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu of having committed the robbery of jewellery and cash worth Rs.
1,00,000/ belonging to the victims for which they are held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code. (150) Further, the prosecution has also successfully established the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Smt. Mridula Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by strangulating her with the string (nara) for which they are held guilty of the offence under Section 302 r/w 34 Indian Penal Code (for the murder of Mridula Kishore). (151) I also hold that the prosecution has been able to successfully establish the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Rajesh Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife Ex.P16 for which they are held guilty of the offence under Section 302 r/w 34 Indian Penal Code (for the murder of Rajesh Kishore). (152) I further hold that the prosecution has also been able to successfully establish the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 154 Section 300 IPC) to commit the murder of child Ankit aged 9 years on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife Ex.P16 for which they are held guilty of the offence under Section 302 r/w 34 Indian Penal Code (for the murder of child Ankit). (153) However, in so far as the charge under Section 397 Indian Penal Code is concerned since the prosecution has failed to conclusively establish as to who amongst the three accused i.e. Surender @ Kalwa, Vijay Pal and Virender @ Mintu was the one who used the weapon of offence i.e. Knife to inflict injuries resulting into death of Rajesh Kishore and Ankit. Hence, the accused have been acquitted of the charge under Section 397 Indian Penal Code. Also, in so far as the charges under Section 411 Indian Penal Code are concerned, since it has been established that the accused are the persons who who had committed robbery upon the victims, hence legally and technically the provisions of Section 411 Indian Penal Code are not separately made out as the ingredients of Section 411 Indian Penal Code are already covered within the offence of Robbery as defined under Section 390 Indian Penal Code and hence no separate finding in respect of the above charge is warranted under the given circumstances.
FINAL CONCLUSIONS:
(154) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 155 down the tests which are prerequisites before conviction should be recorded, which are as under:
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 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.
(155) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses and other material on record, the following facts stand established:
➢ That Jugal Kishore was an employee with the Indian Oil Corporation Mathura and at the time of incident was posted as St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 156 Operation Officer and used to visit Delhi at his house at H19/131, Sector7, Rohini Delhi once in a week. ➢ That at the time of the incident his wife Mridula, sons Magender Kishore, Rajesh Kishore and Kaushal Kishore and grandson Ankit S/o Magender Kishore were residing at his house no.131/H19, Sector7, Rohini.
➢ That on 5.2.2004 at about 12:00 noon, Jugal Kishore telephoned to his wife from Mathura and spoke to his wife on phone who told that Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu had come to their house who were from her village and she was cooking meal and Smt. Mridula Kishore told Jugal Kishore that she would talk to him as the meal she was cooking was burning.
➢ That Surender @ Kalwa belonged to village of inlaws of Jugal Kishore, whereas Vijay Pal and Vijender were relatives of Surender @ Kalwa.
➢ That thereafter at about 2:30 PM, Jugal Kishore again telephoned but no one responded after which he came to his house at Mathura and slept.
➢ That Kaushal Kishore had gone to Computer Center at Shalimar Bagh at about 9:30 AM and at about 6:45 PM, he returned to his house.
➢ That Kaushal Kishore found that his brother Rajesh Kishore St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 157 was lying in a pool of blood on a bed in drawing room and his throat was slit and one blood stained kitchen knife was lying near the body Rajesh Kishore.
➢ That Kaushal Kishore raised an alarm and then entered adjoining room where he saw that his mother Mridula Kishore was lying in a pool of blood on the bed and around her neck one string had been tied and there was blood on the floor. ➢ That thereafter Kaushal Kishore went to the same adjoining room where he saw that his nephew Ankit was lying in a pool of blood on the floor and there were injury marks on his neck. ➢ That Kaushal Kishore came out of his house while crying. ➢ That Magender Kishore the father of deceased Ankit who had gone to Azad Pur for appearing in a interview at about 8:00 AM, returned back at about 7:00 PM and found a large crowd present at the house.
➢ That Magender Kishore found his younger brother Kaushal Kishore crying.
➢ That Magender Kishore found his younger brother Rajesh lying on the bed in a pool of blood outside the room and one blood stained kitchen knife was also lying near him. ➢ That in the inner room Magender Kishore found his mother Mridula Kishore lying on a double bed and one string was tied around her neck and there were injuries on her neck and there St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 158 was blood on the bed.
➢ That inside another room Magender Kishore found his son Ankit lying in a pool of blood.
➢ That thinking that Smt. Mridula Kishore was alive, Kaushal Kishore rushed her to BSA Hospital whereas Magender Kishore rushed his son Ankit to the same hospital in PCR van. ➢ That both Mridula Kishore and Ankit were declared brought dead by the doctors.
➢ That police was informed about the incident viude DD No. 21 A pursuant to which Inspector Ram Chander Sangwan reached the spot and the case was registered on DD No. 21A. ➢ That, at Mathura, the emergency duty of Jugal Kishore was fixed from 10:00 PM to 6:00 AM as the concerned official already in regular duty had fallen sick.
➢ That accordingly Jugal Kishore went on emergency duty at 10:00 PM when at about 10:45 PM his boss namely M.S. Jatav telephoned him over intercom that some mishappening had taken place at his house at Delhi.
➢ That Jugal Kishore boarded a bus for Delhi and reached Delhi at about 3:30 AM and found all the relatives present at his house.
➢ That the relatives narrated to Jugal Kishore the incident that someone murdered his wife, son Rajesh Kishore and grandson St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 159 Ankit and on hearing the same Jugal Kishore became shocked and unconscious.
➢ That after Jugal Kishore regained his senses he found the locker of almirah, kept in a bed room, broken and found the empty jewellery boxes lying on bed.
➢ That thereafter when Jugal Kishore checked almirah wherein he had kept Rs.20,000/ in cash approximately and some jewellery consisting four golden kangans, one bangle, one necklace, one golden chain, four pairs of tops, one Om (locket) in gold in a black thread and four bangles of silver having golden polish, one silver chain polished in gold, one artificial mangalsutra and one kara of brass ladies, which were found missing.
➢ That police recorded the statement of Jugal Kishore on 7.2.2004 wherein in is first statement to the police he expressed his suspicion on Surender @ Kalwa, Vijay Pal and Virender who were present at his house when he had last spoken to his wife on telephone on 5.2.2004 afternoon.
➢ That Jugal Kishore also informed the police in his statement dated 7.2.2004 that even earlier Surender @ Kalwa and Vijay Pal had stayed during the night of 2728.1.2004 at his house at Delhi.
➢ That Jugal Kishore further informed the police that accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 160 Surender belonged to the village of his deceased wife i.e. village Saleempura, Police Station Kakor, Distt. Bulandshahar, U.P. ➢ That on getting a clue from Jugal Kishore, on the same day i.e. 7.2.2004 the Investigating Officer along with his staff went to said village where he came to know that all the three accused had visited the said village but had left for village Pachota, District Bullandshahar of accused Vijay Pal.
➢ That thereafter the police party went to village Pachota where they came to know that all the three accused persons had come for some time but left for village Sara, District Ghaziabad, U.P. Niwari but there also all the three could not be found available. ➢ That the Investigating Officer came to know that the accused persons were talking to each other of going Delhi. ➢ That information was gathered from the relatives of accused persons about the places of their relatives at Delhi i.e. village Khera Kalan, New Mangla Puri, Mangol Puri and village Dhirpur.
➢ That on 8.2.2004 a raiding party was organized after which the Investigating Officer first visited village Khera Kalan, where two sisters of accused Surender @ Kalwa namely Meena and Kavita were residing and on inquiry, they told him that all the three accused persons had come at their residence but had left St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 161 and probably the accused persons would go to New Mangla Puri where their third sister namely Mukesh was residing. ➢ That the police party then went to New Mangla Puri where they came to know that accused persons had come but left after sometime probably for Mangol Puri where accused Surender's cousin sister Chandra was residing.
➢ That the police party thereafter went to Mangol Puri and visited the house of Chandra but the accused persons were not found as they came there for some time and had then left probably for village Dhirpur near Mukherjee Nagar, where aunt (bua) Shakuntla of accused Surender @ Kalwa was residing and it also informed by Chandra that the accused persons were talking about visiting village Khera Kalan at around 78 PM. ➢ That accordingly the police party went to village Dhirpur where accused persons were not found present and the Investigating Officer came to know that they visited the said house but had left.
➢ That the police party reached at GT Karnal byepass Delhi and started checking the vehicles.
➢ That during checking all the three accused persons were apprehended under suspicion and when they were asked as to where they were going they informed that they were going to village Khera Kalan.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 162 ➢ That the accused persons were made to alight from the bus and were interrogated deeply during which they disclosed their names and addresses.
➢ That the accused Surender @ Kalwa was holding a black colour rexine bag in his hand and on checking it found to contain one credit card of ICICI Bank in the name of Jugal Kishore, cash amount of Rs.10,050/, two screw drivers having green colour plastic handles and 85 coins of one rupee each lying in a small cloth bag.
➢ That on inquiry the accused Surender disclosed that the credit card, cash and coins were part of the robbed articles and also disclosed that the screw drivers were used in breaking the lock of the locker of Almirah.
➢ That the accused Vijay Pal of his own took out one earring, one hexagonal shape locket of golden colour having OM engraved on it and disclosed that the articles were also robbed in the incident of the present case.
➢ That the accused Virender @ Mintu produced one pair of golden colour ear tops from his pant pocket which tops were having design of four leaves engraved on it with red and green colour and disclosed that these articles were stated to be part of the said robbed articles.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 163 ➢ That thereafter all the accused persons were arrested and their disclosure statements were recorded.
➢ That on 10.2.2004 Inspector Krishan Kumar, SI Daya Nand, HC Rajbir, HC Vijender, HC Naresh and fivesix Constables along with the accused persons went to Ghaziabad. ➢ That the accused Virender led the police party to his house in village Sara, District Ghaziabad where there was a small room in the house and one iron box was lying.
➢ That from the said iron box the accused Virender took out two kangans of gold, two bangles in golden colour, one earring in golden colour, one chain in golden colour, one grey colour pant with blood stains and one grey colour shirt with blood stains, which were seized.
➢ That the accused Surender @ Kalwa led the police party to Village Saleempura, Bulandshahar, U.P. where he (accused) took them to his house and from an iron box lying in one room of the house the accused got recovered the necklace of golden colour, one grey colour pant and one light brown colour shirt both having blood stains, which were taken into possession. ➢ That the accused Vijay Pal led the police party to his village Pachoda, District Bulandshahar, U.P. and pointed out one iron box which was lying under a Chhappar outside the place where the animals were kept.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 164 ➢ That from the said iron box the accused Vijay took out jewelery items i.e. pair of kangan, pair of bangles, one mangalsutra, one small chain, one earring, and one jhumka of ear, all in golden colour, one light green colour pant having blood stains and one pullover of black colour from that box, which articles and clothes were taken into police possession.
➢ That the said jewellery items so recovered from the possession of the accused persons or at his instances were subjected to Judicial Test Identification Parade on 23.2.2004 wherein Jugal Kishore identified the jewellery articles.
(156) The medical evidence on record proved that the death of deceased Mridula Kishore was due to asphyxia as a result of ligature strangulation which was sufficient to cause death in ordinary course of nature; that the Injury no.1 was possible by nara and Injury no.2 was possible by the knife; that the death of Rajesh Kumar was caused on account of respiratory embarrassment and hemorrhagic shock as a result of cut throat injury, which was sufficient to cause death in ordinary course of nature which Injury No.1 was possible by the knife Ex.P16; that the death of Ankit Kumar was caused on account of respiratory embarrassment and hemorrhagic shock as a result of cut throat injury which injury was sufficient to cause death in ordinary course of nature and was antemortem in nature and was possible by the knife Ex.P16. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 165 Further, the presence of undigested food in the stomach of Ankit established that Ankit had just taken his meals after return from his school; that presence of semidigested food in the stomach of Mridula Kishore established that she had already taken her meals before Ankit; that the presence of digested food in the stomach of deceased Rajesh Kishore established that he had only taken his breakfast and was sleeping on the bed adjoining the table where his laptop was lying and was killed in that state. The postmortem reports corroborate the testimony of Jugal Kishore and are compatible to the circumstantial evidence which has emerged and to the prosecution version.
(157) Further, the CFSL Reports establishes that the blood group of deceased Rajesh Kishore was 'A Group'; that of Ankit Kumar was 'AB Group' and that of deceased Mridula Kishore was 'B Group'. It has also been established that the blood of deceased Rajesh of 'A' Group was detected on the clothes of the accused Vijay Pal and Virender and the pant of the accused Surender @ Kalwa showed positive results for human blood which conclusively connect the accused Surender @ Kalwa, Vijay Pal and Virender with the offence. Also, the knife Ex.P16 which was recovered from the scene of crime shows the presence of blood group 'A' (belonging to the deceased Rajesh Kishore) confirming that it was the weapon of offence used in the commission of ghastly crime. (158) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 166 investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (159) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (160) This being the background, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu of having committed the robbery of jewellery and cash worth Rs.1,00,000/ belonging to the victims for which they are held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 167 (161) Further, the prosecution has also successfully established the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Smt. Mridula Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by strangulating her with the string (nara) for which they are held guilty of the offence under Section 302 Indian Penal Code (for the murder of Mridula Kishore).
(162) I also hold that the prosecution has been able to successfully establish the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Rajesh Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife Ex.P16 for which they are held guilty of the offence under Section 302 Indian Penal Code (for the murder of Rajesh Kishore). (163) I further hold that the prosecution has also been able to successfully establish the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of child Ankit aged 9 years on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife Ex.P16 for which they are held guilty of the offence under Section 302 Indian Penal Code (for the murder of child Ankit). St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 168 (164) However, in so far as the charge under Section 397 Indian Penal Code is concerned since the prosecution has failed to conclusively establish as to who amongst the three accused i.e. Surender @ Kalwa, Vijay Pal and Virender @ Mintu was the one who used the weapon of offence i.e. Knife to inflict injuries resulting into death of Rajesh Kishore and Ankit. Hence, the accused have been acquitted of the charge under Section 397 Indian Penal Code.
(165) However, in so far as the charges under Section 411 Indian Penal Code are concerned, since the accused have been identified as the same persons who who had committed robbery upon the victims, hence legally and technically the provisions of Section 411 Indian Penal Code are not separately made out as the ingredients of Section 411 Indian Penal Code are already covered within the offence of Robbery as defined under Section 390 Indian Penal Code and hence no separate finding in respect of the above charge is warranted under the given circumstances.
(166) Be listed for arguments on sentence on 8.8.2013
Announced in the open court (Dr. KAMINI LAU)
Dated: 3.8.2013 ASJII(NW)/ ROHINI
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 169
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSSION JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 27/2013 Unique Case ID No.: 02404R6288402004 State Vs. 1. Surender @ Kalwa S/o Sh. Rattan Lal R/o Village Salempura Colony, District Bulandshehar, Post Kakore, U.P. (Convicted)
2. Vijay Pal S/o Sh. Nepal Singh R/o Village Pachota, Post Sikhera, District Bulandshehar, U.P. (Convicted)
3. Virender Kumar @ Mintu S/o Sh. Brij Pal R/o Village Sara, District Ghaziabad, U.P. (Convicted) FIR No.: 119/2004 Police Station: Rohini Under Section: 302/394/392/397/411/34 IPC Date of conviction: 3.8.2013 Arguments concluded on: 31.8.2013 Date of sentence: 3.9.2013 St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 170 APPEARANCE:
Present: Sh. Girish Giri, Addl. Public Prosecutor for the State.
All the three convicts namely Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu in judicial custody with Sh. K.P. Singh and Sh. S.P. Sharma Advocates.
ORDER ON SENTENCE:
One thing worse than death is Betrayal:
One can conceive death but not Betrayal.
This unfortunate case relates to such a betrayal, treachery and killing of three members of one family one of whom was an elderly lady, second a young boy and third a child and all for money. What a tragedy which befell the family and all because of goodness of the family and indulgence given to the accused who were known to them. Taking advantage of this kindness of the victims the accused Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu looted their house and killed all the inhabitants present in the house at the time of the incident in broad day light so that none can be left to expose them.
This case relates to the year 2004 when the Capital shook to the brutal killings of three members of a family and the motive of the crime was robbery. As per the allegations, on 5.2.2004 at H19/131, Sector7, Rohini Delhi in afternoon the accused Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu in furtherance of their common intention committed the murder of Smt. Mridula Kishore, Rajesh Kishore St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 171 and Master Ankit. It has also been alleged that all the accused committed the robbery of jewellery and cash worth Rs.1,00,000/ belonging to the victims by using deadly weapons.
Vide a detail judgment dated 3.8.2013 the accused Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu have been held guilty of the offence under Section 302/34 Indian Penal Code. Further, the accused Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu of have been held guilty of the offence under Sections 392 r/w 394 Indian Penal Code. However, they have been acquitted of the charge under Section 397 Indian Penal Code. Vide the above judgment this Court has observed that on the basis of the testimonies of the various prosecution witnesses particularly Jugal Kishore (husband of deceased Mridula Kishore, father of deceased Rajesh Kishore and grandfather of deceased Ankit), Magender Kishore (son of husband of deceased Mridula Kishore, brother of deceased Rajesh Kishore and father of deceased Ankit), Kaushal Kishore (son of deceased Mridula Kishore, brother of deceased Rajesh Kishore and uncle of deceased Ankit), M.S. Jatav (boss of Jugal Kishore) the medical, forensic and other circumstantial evidence on record, the prosecution has been able to establish that Jugal Kishore was an employee with the Indian Oil Corporation Mathura and at the time of incident was posted as Operation Officer and used to visit Delhi at his house at H19/131, Sector7, Rohini Delhi once in a week; that at the time of the incident his wife Mridula, sons Magender Kishore, Rajesh Kishore St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 172 and Kaushal Kishore and grandson Ankit S/o Magender Kishore were residing at his house no.131/H19, Sector7, Rohini.
The prosecution has been able to successfully establish that on 5.2.2004 at about 12:00 noon, Jugal Kishore telephoned to his wife from Mathura and spoke to his wife on phone who informed him that Surender @ Kalwa, Vijay Pal and Virender Kumar @ Mintu had come to their house who were from her village and she was cooking meal and Smt. Mridula Kishore told Jugal Kishore that she would speak to him as the meal she was cooking was burning; that Surender @ Kalwa belonged to village of inlaws of Jugal Kishore, whereas Vijay Pal and Vijender were relatives of Surender @ Kalwa; that thereafter at about 2:30 PM, Jugal Kishore again telephoned but no one responded after which he came to his house at Mathura and slept; that Kaushal Kishore had gone to Computer Center at Shalimar Bagh at about 9:30 AM and at about 6:45 PM, he returned to his house; that Kaushal Kishore found that his brother Rajesh Kishore was lying in a pool of blood on a bed in drawing room and his throat was slit and one blood stained kitchen knife was lying near the body Rajesh Kishore; that Kaushal Kishore raised an alarm and then entered adjoining room where he saw that his mother Mridula Kishore was lying in a pool of blood on the bed and around her neck one string had been tied and there was blood on the floor; that thereafter Kaushal Kishore went to the same adjoining room where he saw that his nephew Ankit was lying in a pool of blood on the floor and St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 173 there were injury marks on his neck; that Kaushal Kishore came out of his house while crying; that Magender Kishore the father of deceased Ankit who had gone to Azad Pur for appearing in a interview at about 8:00 AM, returned back at about 7:00 PM and found a large crowd present at the house; that Magender Kishore found his younger brother Kaushal Kishore crying; that Magender Kishore found his younger brother Rajesh lying on the bed in a pool of blood outside the room and one blood stained kitchen knife was also lying near him; that in the inner room Magender Kishore found his mother Mridula Kishore lying on a double bed and one string was tied around her neck and there were injuries on her neck and there was blood on the bed; that inside another room Magender Kishore found his son Ankit lying in a pool of blood; that thinking that Smt. Mridula Kishore was alive, Kaushal Kishore rushed her to BSA Hospital whereas Magender Kishore rushed his son i.e. child Ankit to the same hospital in PCR van; that both Mridula Kishore and Ankit were declared brought dead by the doctors; that police was informed about the incident viude DD No. 21A pursuant to which Inspector Ram Chander Sangwan reached the spot and the case was registered on DD No. 21A. The prosecution has been able to further establish that, at Mathura, the emergency duty of Jugal Kishore was fixed from 10:00 PM to 6:00 AM as the concerned official already in regular duty had fallen sick; that accordingly Jugal Kishore went on emergency duty at 10:00 PM St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 174 when at about 10:45 PM his boss namely M.S. Jatav telephoned him over intercom that some mishappening had taken place at his house at Delhi; that Jugal Kishore boarded a bus for Delhi and reached Delhi at about 3:30 AM and found all the relatives present at his house; that the relatives narrated to Jugal Kishore the incident that someone murdered his wife, son Rajesh Kishore and grandson Ankit and on hearing the same Jugal Kishore became shocked and unconscious; that after Jugal Kishore came to his senses he found the locker of almirah, kept in a bed room, broken and also found the empty jewellery boxes lying on bed; that thereafter when Jugal Kishore checked almirah wherein he had kept Rs.20,000/ in cash approximately and some jewellery consisting four golden kangans, one bangle, one necklace, one golden chain, four pairs of tops, one Om (locket) in gold in a black thread and four bangles of silver having golden polish, one silver chain polished in gold, one artificial mangalsutra and one kara of brass ladies, which were found missing; that police recorded the statement of Jugal Kishore on 7.2.2004 wherein in is first statement to the police he expressed his suspicion on Surender @ Kalwa, Vijay Pal and Virender who were present at his house when he had last spoken to his wife on telephone on 5.2.2004 afternoon; that Jugal Kishore also informed the police in his statement dated 7.2.2004 that even earlier Surender @ Kalwa and Vijay Pal had stayed during the night of 2728.1.2004 at his house at Delhi; that Jugal Kishore further informed the police that the accused Surender belonged to the village of his St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 175 deceased wife i.e. village Saleempura, Police Station Kakor, Distt. Bulandshahar, U.P. The prosecution has also been able to establish that on getting a clue from Jugal Kishore, on the same day i.e. 7.2.2004 the Investigating Officer along with his staff went to said village where he came to know that all the three accused had visited the said village but had left for village Pachota, District Bullandshahar of accused Vijay Pal; that thereafter the police party went to village Pachota where they came to know that all the three accused persons had come for some time but left for village Sara, District Ghaziabad, U.P. Niwari but there also all the three could not be found available; that the Investigating Officer came to know that the accused persons were talking to each other of going Delhi; that information was gathered from the relatives of accused persons about the places of their relatives at Delhi i.e. village Khera Kalan, New Mangla Puri, Mangol Puri and village Dhirpur; that on 8.2.2004 a raiding party was organized after which the Investigating Officer first visited village Khera Kalan, where two sisters of accused Surender @ Kalwa namely Meena and Kavita were residing and on inquiry, they informed him that all the three accused persons had come at their residence but had left and probably the accused persons would go to New Mangla Puri where their third sister namely Mukesh was residing; that the police party then went to New Mangla Puri where they came to know that accused persons had come but left after sometime probably for Mangol Puri where accused St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 176 Surender's cousin sister Chandra was residing; that the police party thereafter went to Mangol Puri and visited the house of Chandra but the accused persons were not found as they came there for some time and had then left probably for village Dhirpur near Mukherjee Nagar, where aunt (bua) Shakuntla of accused Surender @ Kalwa was residing and it also informed by Chandra that the accused persons were talking about visiting village Khera Kalan at around 78 PM; that accordingly the police party went to village Dhirpur where accused persons were not found present and the Investigating Officer came to know that they visited the said house but had left; that the police party reached at GT Karnal bypass Delhi and started checking the vehicles; that during checking all the three accused persons were apprehended under suspicion and when they were asked as to where they were going they informed that they were going to village Khera Kalan; that the accused persons were made to alight from the bus and were interrogated deeply during which they disclosed their names and addresses; that the accused Surender @ Kalwa was holding a black colour rexine bag in his hand and on checking it found to contain one credit card of ICICI Bank in the name of Jugal Kishore, cash amount of Rs.10,050/, two screw drivers having green colour plastic handles and 85 coins of one rupee each lying in a small cloth bag; that on inquiry the accused Surender disclosed that the credit card, cash and coins were part of the robbed articles and also disclosed that the screw drivers were used in breaking the lock of the locker of Almirah; that the accused Vijay Pal St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 177 of his own took out one earring, one hexagonal shape locket of golden colour having OM engraved on it and disclosed that the articles were also robbed in the incident of the present case; that the accused Virender @ Mintu produced one pair of golden colour ear tops from his pant pocket which tops were having design of four leaves engraved on it with red and green colour and disclosed that these articles were stated to be part of the said robbed articles; that thereafter all the accused persons were arrested and their disclosure statements were recorded.
The prosecution has also been able to establish that that on 10.2.2004 Inspector Krishan Kumar, SI Daya Nand, HC Rajbir, HC Vijender, HC Naresh and fivesix Constables along with the accused persons went to Ghaziabad; that the accused Virender led the police party to his house in village Sara, District Ghaziabad where there was a small room in the house and one iron box was lying; that from the said iron box the accused Virender took out two kangans of gold, two bangles in golden colour, one earring in golden colour, one chain in golden colour, one grey colour pant with blood stains and one grey colour shirt with blood stains, which were seized; that the accused Surender @ Kalwa led the police party to Village Saleempura, Bulandshahar, U.P. where he (accused) took them to his house and from an iron box lying in one room of the house the accused got recovered the necklace of golden colour, one grey colour pant and one light brown colour shirt both having blood stains, which were taken into possession; that the accused Vijay St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 178 Pal led the police party to his village Pachoda, District Bulandshahar, U.P. and pointed out one iron box which was lying under a Chhappar outside the place where the animals were kept; that from the said iron box the accused Vijay took out jewelery items i.e. pair of kangan, pair of bangles, one mangalsutra, one small chain, one earring, and one jhumka of ear, all in golden colour, one light green colour pant having blood stains and one pullover of black colour from that box, which articles and clothes were taken into police possession; that the said jewellery items so recovered from the possession of the accused persons or at his instances were subjected to Judicial Test Identification Parade on 23.2.2004 wherein Jugal Kishore identified the jewellery articles.
Vide the above judgment this Court has observed that the prosecution has been able to establish successfully that the medical evidence on record proved that death of deceased Mridula Kishore was due to asphyxia as a result of ligature strangulation which was sufficient to cause death in ordinary course of nature; that the Injury no.1 was possible by nara and Injury no.2 was possible by the knife; that the death of Rajesh Kumar was caused on account of respiratory embarrassment and hemorrhagic shock as a result of cut throat injury, which was sufficient to cause death in ordinary course of nature which Injury No.1 was possible by the knife; that the death of Ankit Kumar was caused on account of respiratory embarrassment and hemorrhagic shock as a result of cut throat injury which injury was sufficient to cause death in ordinary St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 179 course of nature and was antemortem in nature and was possible by the knife. The prosecution has also successfully established that the presence of undigested food in the stomach of Ankit established that Ankit had just taken his meals after return from his school; that presence of semi digested food in the stomach of Mridula Kishore established that she had already taken her meals before Ankit; that the presence of digested food in the stomach of deceased Rajesh Kishore established that he had only taken his breakfast and was sleeping on the bed adjoining the table where his laptop was lying and was killed in that state. It has also been established that the postmortem reports corroborate the testimony of Jugal Kishore and are compatible to the circumstantial evidence which has emerged and to the prosecution version. Further, the CFSL Reports established that the blood group of deceased Rajesh Kishore was 'A Group'; that of Ankit Kumar was 'AB Group' and that of deceased Mridula Kishore was 'B Group'. It has also been established that the blood of deceased Rajesh of 'A' Group was detected on the clothes of the accused Vijay Pal and Virender and the pant of the accused Surender @ Kalwa showed positive results for human blood which conclusively connect the accused Surender @ Kalwa, Vijay Pal and Virender with the offence.
This Court vide its detailed Judgment has concluded that the prosecution has been able to prove and substantiate the allegations against the accused Surender @ Kalwa, Vijay Pal and Virender @ Mintu of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 180 having committed the robbery of jewellery and cash worth Rs.1,00,000/ belonging to the victims for which they have been held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code. The prosecution has also successfully established the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Smt. Mridula Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by strangulating her with the string (nara) for which they have been held guilty of the offence under Section 302 Indian Penal Code (for the murder of Mridula Kishore). The prosecution has also successfully established the intent and knowledge attributed to the accused Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of Rajesh Kishore on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife for which they have been held guilty of the offence under Section 302 Indian Penal Code (for the murder of Rajesh Kishore) and also the intent and knowledge attributed to these accused i.e. Surender @ Kalwa, Vijay Pal and Virender (as contemplated under Section 300 IPC) to commit the murder of child Ankit aged 9 years on 5.2.2004 at H19/131, Sector7, Rohini Delhi by slitting his neck with the knife for which they have been held guilty of the offence under Section 302 Indian Penal Code (for the murder of child Ankit). However, in so far as the charge under Section St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 181 397 Indian Penal Code is concerned since the prosecution has failed to conclusively establish as to who amongst the three accused i.e. Surender @ Kalwa, Vijay Pal and Virender @ Mintu was the one who used the weapon of offence i.e. Knife to inflict injuries resulting into death of Rajesh Kishore and Ankit. Hence, the accused have been acquitted of the charge under Section 397 Indian Penal Code. Fruther, in so far as the charges under Section 411 Indian Penal Code are concerned, since it has been established that the accused were the persons who who had committed robbery upon the victims, hence legally and technically the provisions of Section 411 Indian Penal Code are not separately made out as the ingredients of Section 411 Indian Penal Code are already covered within the offence of Robbery as defined under Section 390 Indian Penal Code and hence no separate finding in respect of the above charge was found to be warranted under the given circumstances.
In order to bring on record the aggravating and mitigating circumstances both the prosecution and defence were permitted to lead evidence in support of their respective claims in addition. The Ld. Addl. PP for the State has examined Kaushal Kishore the son of deceased Mridula Kishore, brother of Rajesh Kishore and uncle of deceased Ankit as SW1 wherein he has informed that after the incident his brother Magender Kishore was mentally disturbed and is receiving the treatment from Institute of Human Behaviour and Allied Sciences, Dilshad Garden, Delhi. He has placed on record the photocopy of the medical documents St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 182 of Magender Kishore which are collectively Ex.SW1/A. According to him, at the time of incident his deceased brother Rajesh Kishore had appeared in the examination of PSC Uttar Pradesh and after his murder they came to know that he had cleared his preliminary examination. He has placed on record the communication sent by Public Service Commission, Uttar Pradesh which is Ex.SW1/B. He has further informed this Court that after this incident his family was so much into trauma that they could not sleep in the said house for months together and even their neighbours started boycotting them because of their relations with the accused as they thought that in case if their own relations could behave with them in such manner, their other relatives would be of same background and hence under these circumstances they were compelled to sell this house.
The convicts despite being given an opportunity have not led any evidence in support of their respected claims with regard to the mitigating circumstances. The Ld. Counsels have made oral submissions as well as filed written synopsis of arguments in support of their case. Both the prosecution and the defence have placed their reliance on various case law which are being discussed herein below.
The convict Surender @ Kalwa is now aged about 32 years having a family comprising of aged parents, one elder and two younger brothers. He is a matriculate and an electrician by profession. The convict Vijay Pal is now aged about 27 years having a family comprising St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 183 of three elder brothers and one married elder sister. He is 4th class pass and an agriculturist by profession. The convict Virender @ Mintu is now aged about 33 years having a family comprising of aged parents, three younger brothers, three younger sisters and wife. It is argued by the Ld. Counsels for the convicts that at the time of commission of the offence, the convicts were young and of tender age and had no previous involvements and hence possibility of reformation. It is submitted that the present case is based on circumstantial evidence and even the exact roles of the convicts could not be established and hence the present case does not fall within the category of Rarest of Rare or even Rare Case in terms of the observations of the Hon'ble Supreme court in the case of Ram Deo Prasad Vs. State of Bihar reported in 2013 Cri. L.J. 2369. Counsels have prayed for mercy for the convicts.
Ld. Additional Public Prosecutor for the State has prayed for imposition of death penalty upon the convicts. It is argued that the convicts had committed the murders of Smt. Mridula Kishore, Rajesh Kishore and an innocent child aged 09 years Master Ankit Kumar and simultaneously committed robbery of cash and jewellery. It is also argued that the deceased had been killed by the convicts in most brutal and premeditated manner with cool minded preplanning, only for the sole purpose of monetary gain. It is argued that the convicts could not be provoked and instigated in any manner by the victims as they were helpless and their movements were completely stopped by physically St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 184 strong and well built convicts.
The Ld. Public Prosecutor has placed his reliance on the authorities of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580; Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and Mohd. Mannan @ Abdul Mannan Vs. State of Bihar reported in 2011 Crl.L.J. 3380 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. The Ld. Addl. Public Prosecutor has also placed his reliance on the judgment of Shivaji Vs. State of Maharastra reported in 2008 (4) AD (CR.) SC 665 and has argued that death penalty could be awarded in cases even where the conviction is based on circumstantial evidence. He has submitted that even during the trial of the case the family of the victim have been threatened and threatening communications were being sent from Bihar. On the other hand, the Ld. Counsels for the convicts have argued that this aspect was duly got inquired into but the inquiry does not connect the convicts with the same in any manner. He submits that the entire family of the victims has been destroyed for no fault of theirs and three generations of a family have been destroyed in a single instance for the sole purpose of monetary gain.
I have considered the rival contentions and also the evidence of the aggravating and mitigating circumstances placed before me. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 185
Now I proceed to take a stock of rulings relied upon by the parties in order to determine the quantum of sentence. In the case of Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], it was held by the Hon'ble Supreme Court that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. The Hon'ble Court further cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) where the murder has been committed after previous planning and involves extreme brutality; or
(b) where the murder involves exceptional depravity. The mitigating circumstances which were mentioned were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above; St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 186
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], where Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
The matter was further considered in Devender Pal Singh Vs. State of NCT of Delhi [AIR 2002 SC 1661], wherein, after examining both the aforementioned cases, it was held that when a murder is committed in an extremely brutal manner, or for a motive which suggests total depravity and meanness or where the murder is by hired assassin for money or reward, or a cold blooded murder for gains, the death sentence St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 187 is justified. Similar such observation was made even in the decision in Atbir Vs. Govt. of NCT of Delhi [JT 2010 (8) SC 372]. Relying on all these cases, Hon'ble Supreme Court, in Criminal Appeal Nos. 127130 of 2008 (C. Muniappan & Ors. Vs. State of Tamil Nadu) decided on 30.8.2010, confirmed the death sentence. The unprovoked attack on the bus and the burning of the bus by sprinkling petrol on the bus, and the death of three students as a result of such burning was viewed by Hon'ble Supreme Court as a barbaric and inhuman act of the highest degree. The offence was viewed as brutal, diabolical, grotesque and cruel, shocking the collective conscience of society. It was on that account that the death sentence was confirmed.
In the case of Atbir Vs. Govt. of NCT of Delhi (supra), which was a case dependent upon a dying declaration, the allegation was that the accused had stabbed all the three persons of a family so that he and his brother could enjoy the entire property and money. The repeated stabbing of the deceased was viewed as the act for which the accused could be legitimately awarded death sentence. The incident therein had occurred on 22.1.1996 while the Sessions Judge had awarded the death sentence on 27.9.2004. The High Court had confirmed the death sentence on 13.1.2006 while Hon'ble Apex Court affirmed this sentence vide its judgment dated 9.8.2010, after taking the stock of the aggravating circumstances and mitigating circumstances, as pointed out in Bachan Singh Vs. State of Punjab (cited supra) and Machhi Singh & Ors. Vs. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 188 State of Punjab (cited supra), came to the conclusion that though Atbir was a young person of 25 years of age and had already spent 10 years in jail, that was not a mitigating circumstance in his favour. The three murders were held to be extremely brutal and diabolical, committed with deliberate design in order to inherit the entire property of Jaswant Singh without waiting for his death.
In another decision in Gurdev Singh & Anr. Vs. State of Punjab with Piara Singh & Anr. Vs. State of Punjab [AIR 2003 SC 4187], the Hon'ble Supreme Court specifically held in Para 19 that there could be no fixed or rigid formula or standard for invoking extreme penalty of death sentence.
Before arriving at a decision whether the case falls in the category of rarest of the rare cases, this Court is required to list aggravating or mitigating circumstances and prepare balance sheet of the same before arriving at a decision. The division bench of our own High Court in case of State Vs. Raj Kumar Khandelwal reported in 164 (2009) DLT 713 (DB) observed that for the said purpose circumstances can be listed under six heads:
1. Circumstances personal to the offender.
2. Preoffence conduct of the offender and in particular the motive.
3. Contemporaneous conduct of the offender while committing the offence
4. Post offence conduct of the offender
5. Role of the victim in commission of the crime. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 189
6. Nature of evidence.
In the said case the Hon'ble High Court has also listed illustrations by way of judicial decision as to what amount to mitigating factors and aggravating factors.
Coming now to the facts of the present case and dealing with the various mitigating and aggravating factors visavis each convict individually which is being listed in a tabulated form as under:
SURENDER @ KALWA Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Mridula Kishore was a parents, one elder and two hapless housewife of 54 years and younger brothers. the convict has taken advantage of her goodness. While the convict enjoyed the hospitality of Mridula Kishore who had prepared and served him lunch along with the other convicts, they instead murdered her in cold blood only for the sake of money.
2. Nil Deceased Ankit Kumar was a helpless child aged 9 years and had just returned from school and taken his lunch so much so that he had not changed his school St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 190 uniform when he was brutally killed in cold blood by slitting his neck with a knife only because he happened to be present in the house when the incident took place and the convicts feared that their identity would be disclosed.
3. Nil Deceased Rajesh Kumar was a young boy of 28 years, brilliant in studies and was preparing for PSC Uttar Pradesh and had even cleared his preliminary examination. He was brutally killed by the convicts by slashing his throat with a knife without any instigation on his part while he was still sleeping and was hence not in a position to offer any kind of resistance and this was done by the convicts only because they feared that their identity would be disclosed.
4. No previous involvement. The act of multiple murders is by its very nature in itself Anti social/ Socially Abhorrent more so as it was directed against an aged woman, young boy and an innocent child all belonging to one family i.e. virtually destroying three generations which crime has been committed in the circumstance which arouses social wrath. The offence is of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 191 such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive
5. Nil. There is significant degree of planning/ premeditation on the part of the convicts while committing the murders of deceased Mridula Kishore, Master Ankit Kumar and Rajesh Kishore.
Contemporaneous Conduct of the offender while committing the offence
6. Nil The manner of killing of the victim Mridula Kishore by strangulation; Rajesh Kishore and Ankit by slashing their throats with a knife is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
7. Nil Mental/ physical suffering inflicted on the deceased before their death Post Offence Conduct of the offender.
8. Nil After committing the murder of the victims, the convict robbed the cash and jewellery articles belonging to the victims.
9. Nil. Lack of remorse.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 192 10 Nil. Alleged threats received by the victims family during trial of the case which however could not be established during police inquiry.
Role of the victim in commission of the crime
11. Nil. There was no act of instigation by any of the victims i.e. Mridula Kishore an aged lady of 54 years, Rajesh Kishore who was sleeping at the time of incident and Ankit a small child of 9 years who had just returned from the school.
12. Nil. The convicts Surender @ Kalwa and Vijay Pal were known to the family of the victims being related through the deceased Mridula and had even previously i.e. on 2728.1.2004. The victims being oblivious of the evil motives of the convicts had been bestowing their hospitality upon the convicts both on 2728.1.2004 and also on the date of the incident i.e. on 5.2.2004 when they visited the house of the victims and Mridula Kishore had specially cooked meals for them. So great was the treachery played by the convicts that after enjoying the hospitality of victim's family, they killed each and every person present in the house while committing robbery of cash and valuables so that none St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 193 could reach them.
Nature of the evidence
13. Nil Circumstantial Evidence in the form of testimony of Jugal Kishore who had spoken to the deceased Mridula Kishore on telephone in the afternoon when the convicts Surender @ Kalwa, Vijay Pal and Virender @ Mintu were present at the house and Mridula Kishore was cooking food for them.
14. Nil Medical evidence confirming the brutality involved in the act of killing of the helpless victims who were caught unawares and unable to offer any resistance.
15. Nil Recovery of large number of jewellery articles and belongings of the victims, from the possession and at the instance of the convict.
16. Nil. Forensic Evidence in the form of CFSL Report establishing that human blood was found on the pant of convict Surender @ Kalwa which he was wearing at the time of the incident and was recovered just two to three days of the incident pursuant to his disclosure.
17. Nil. Forensic Evidence in the form of CFSL Report establishing that blood group 'A' (belonging to St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 194 deceased Rajesh Kishore) was found on the weapon of offence i.e. knife which was recovered at the scene of crime.
VIJAY PAL
Sr. Mitigating Factors Aggravating factors
No
Circumstances personal to the offender
1. Family comprising of three Deceased Mridula Kishore was a elder brothers and one elder hapless housewife of 54 years and sister. the convict has taken advantage of her goodness. While the convict enjoyed the hospitality of Mridula Kishore who had prepared and served him lunch along with the other convicts, they instead murdered her in cold blood only for the sake of money.
2. Nil. Deceased Ankit Kumar was a helpless child aged 9 years and had just returned from school and taken his lunch so much so that he had not changed his school uniform when he was brutally killed in cold blood by slitting his neck with a knife only because he happened to be present in the house when the incident took place and the convicts feared that their identity would be disclosed.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 195
3. Nil. Deceased Rajesh Kumar was a young boy of 28 years, brilliant in studies and was preparing for PSC Uttar Pradesh and had even cleared his preliminary examination. He was brutally killed by the convicts by slashing his throat with a knife without any instigation on his part while he was still sleeping and was hence not in a position to offer any kind of resistance and this was done by the convicts only because they feared that their identity would be disclosed.
4. No previous involvement. The act of multiple murders is by its very nature in itself Anti social/ Socially Abhorrent more so as it was directed against an aged woman, young boy and an innocent child all belonging to one family i.e. virtually destroying three generations which crime has been committed in the circumstance which arouses social wrath. The offence is of such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive
5. Nil. There is significant degree of planning/ premeditation on the part of the convicts while St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 196 committing the murders of deceased Mridula Kishore, Master Ankit Kumar and Rajesh Kishore.
Contemporaneous Conduct of the offender while committing the offence
6. Nil The manner of killing of the victim Mridula Kishore by strangulation; Rajesh Kishore and Ankit by slashing their throats with a knife is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
7. Nil Mental/ physical suffering inflicted on the deceased before their death Post Offence Conduct of the offender.
8. Nil After committing the murder of the victims, the convict robbed the cash and jewellery articles belonging to the victims.
9. Nil. Lack of remorse.
10. Nil Alleged threats received by the victims family during trial of the case which however could not be established during police inquiry.
Role of the victim in commission of the crime
11. Nil. There was no act of instigation by St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 197 any of the victims i.e. Mridula Kishore an aged lady of 54 years, Rajesh Kishore who was sleeping at the time of incident and Ankit a small child of 9 years who had just returned from the school.
12. Nil The convicts Surender @ Kalwa and Vijay Pal were known to the family of the victims being related through the deceased Mridula and had even previously i.e. on 2728.1.2004. The victims being oblivious of the evil motives of the convicts had been bestowing their hospitality upon the convicts both on 2728.1.2004 and also on the date of the incident i.e. on 5.2.2004 when they visited the house of the victims and Mridula Kishore had specially cooked meals for them. So great was the treachery played by the convicts that after enjoying the hospitality of victim's family, they killed each and every person present in the house while committing robbery of cash and valuables so that none could reach them.
Nature of the evidence
13. Nil Circumstantial Evidence in the form of testimony of Jugal Kishore who had spoken to the deceased Mridula Kishore on telephone in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 198 the afternoon when the convicts Surender @ Kalwa, Vijay Pal and Virender @ Mintu were present at the house and Mridula Kishore was cooking food for them.
14. Nil Medical evidence confirming the brutality involved in the act of killing of the helpless victims who were caught unawares and unable to offer any resistance.
15. Nil Recovery of large number of jewellery articles and belongings of the victims, from the possession and at the instance of the convict.
16. Nil. Forensic Evidence in the form of CFSL Report establishing that human blood was found on the pant and shirt of convict Vijay Pal which he was wearing at the time of the incident and was recovered just two to three days of the incident pursuant to his disclosure.
17. Nil. Forensic Evidence in the form of CFSL Report establishing that blood group 'A' (belonging to deceased Rajesh Kishore) was found on the weapon of offence i.e. knife which was recovered at the scene of crime.
St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 199 VIRENDER @ MINTU St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 200 Sr. Mitigating Factors Aggravating factors No Circumstances personal to the offender
1. Family comprising of aged Deceased Mridula Kishore was a parents, three younger hapless housewife of 54 years and brothers, three younger sisters the convict has taken advantage of and wife. her goodness. While the convict enjoyed the hospitality of Mridula Kishore who had prepared and served him lunch along with the other convicts, they instead murdered her in cold blood only for the sake of money.
2. Nil Deceased Ankit Kumar was a helpless child aged 9 years and had just returned from school and taken his lunch so much so that he had not changed his school uniform when he was brutally killed in cold blood by slitting his neck with a knife only because he happened to be present in the house when the incident took place and the convicts feared that their identity would be disclosed.
3. Nil Deceased Rajesh Kumar was a young boy of 28 years, brilliant in studies and was preparing for PSC Uttar Pradesh and had even cleared his preliminary examination. He was brutally killed by the convicts by slashing St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 201 his throat with a knife without any instigation on his part while he was still sleeping and was hence not in a position to offer any kind of resistance and this was done by the convicts only because they feared that their identity would be disclosed.
4. No previous involvement. The act of multiple murders is by its very nature in itself Anti social/ Socially Abhorrent more so as it was directed against an aged woman, young boy and an innocent child all belonging to one family i.e. virtually destroying three generations which crime has been committed in the circumstance which arouses social wrath. The offence is of such a diabolic nature so as to shake the conscience and confidence of people.
Preoffence Conduct of the offender and in particular the motive
5. Nil. There is significant degree of planning/ premeditation on the part of the convicts while committing the murders of deceased Mridula Kishore, Master Ankit Kumar and Rajesh Kishore.
Contemporaneous Conduct of the offender while committing the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 202 offence
6. Nil The manner of killing of the victim Mridula Kishore by strangulation; Rajesh Kishore and Ankit by slashing their throats with a knife is extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
7. Nil Mental/ physical suffering inflicted on the deceased before their death Post Offence Conduct of the offender.
8. Nil After committing the murder of the victims, the convict robbed the cash and jewellery articles belonging to the victims.
9. Nil. Lack of remorse.
10. Nil. Alleged threats received by the victims family during trial of the case which however could not be established during police inquiry.
Role of the victim in commission of the crime
11. Nil. There was no act of instigation by any of the victims i.e. Mridula Kishore an aged lady of 54 years, Rajesh Kishore who was sleeping at the time of incident and Ankit a small child of 9 years who had St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 203 just returned from the school.
12. Nil. The coconvicts Surender @ Kalwa and Vijay Pal were known to the family of the victims being related through the deceased Mridula and had even previously i.e. on 2728.1.2004. The victims being oblivious of the evil motives of the convicts had been bestowing their hospitality upon the convicts both on 2728.1.2004 and also on the date of the incident i.e. on 5.2.2004 when they visited the house of the victims and Mridula Kishore had specially cooked meals for them.
So great was the treachery played by the convicts that after enjoying the hospitality of victim's family, they killed each and every person present in the house while committing robbery of cash and valuables so that none could reach them.
Nature of the evidence
13. Nil Circumstantial Evidence in the form of testimony of Jugal Kishore who had spoken to the deceased Mridula Kishore on telephone in the afternoon when the convicts Surender @ Kalwa, Vijay Pal and Virender @ Mintu were present at the house and Mridula Kishore St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 204 was cooking food for them.
14. Nil Medical evidence confirming the brutality involved in the act of killing of the helpless victims who were caught unawares and unable to offer any resistance.
15. Nil Recovery of large number of jewellery articles and belongings of the victims, from the possession and at the instance of the convict.
16. Nil. Forensic Evidence in the form of CFSL Report establishing that human blood was found on the pant and shirt of convict Vijay Pal which he was wearing at the time of the incident and was recovered just two to three days of the incident pursuant to his disclosure.
17. Nil. Forensic Evidence in the form of CFSL Report establishing that blood group 'A' (belonging to deceased Rajesh Kishore) was found on the weapon of offence i.e. knife which was recovered at the scene of crime.
World over, Homicidal Killings, have been categorized as under:
1. Simple Killing - Normally involves single killing at one location. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 205
2. Multiple Killing - Where more than one victim is killed at one location during one continuous period of time. They are killers who murder several members of a family at one location.
3. Serial Killing - Where the author of crime kills two or more than two persons over a period, with down time (a cooling off period) between the murders and whose motivation for killing is usually based on psychological gratification. The motive for serial killings may vary which may include anger, thrill, financial gain, attention seeking etc. and most of time the killer follow a similar pattern of crime.
4. Mass Killings - Where people who are on a killing spree commit murders on two or more locations with virtually no break in between (apparently no cooling off period to return to normalcy).
Mass Killings may be defined as the person murdering four or more persons during a particular event with no coolingoff period between the murders which is interchangeably used with words "Mass Destruction" which is an act of murdering a large number of people, typically at the same time or over a relatively short period of time. It typically occurs in a single location in which a number of victims are killed (i.e. terrorist attacks, bomb blasts etc.). Most of the mass killings are driven by a Motive like revenge, attention, fame etc. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 206 Multiple Killings, Serial Killings and Mass Killings have been considered as crimes against humanity and world over are treated differently from an ordinary killing which may happen at the spur of moment at one location. In these cases the States have been responding suitably by imposing of Rare Punishment i.e. Capital Punishment.
Human life is precious and for every single loss of life, there has be an accountability. In so far as the Simple Killing is concerned, there is no controversy while dealing with the aspect of sentencing but in so far as the Multiple Killing or Serial Killings or Mass Killings involving killings of more than one person are concerned, the act by its very manner is of such a magnitude, extremely brutal, diabolical, revolting and dastardly. There cannot be a broad proposition that whether it be the case of killing of one person or a Multiple Killing or Mass Killing the sentences of all shall be the same and it is this proposition which has found total unacceptability to all civilized nations and to the Court who thereby modulate the sentencing to meet the exigencies of the situation.
Life sentence for multiple murders which are served concurrently devalues the lives of the victims and puts the law abiding citizens at risk and the Courts have suitably responded by imposing maximum punishment of Death Penalty but in appropriate cases the Courts have even responded by imposing consecutive sentences and parole ineligibility periods and of taking away of remissions etc. These aspects have been elaborately discussed by the Hon'ble Supreme Court in St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 207 the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767; Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686; Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417; Sandeep Vs. State of UP, Crl. Appeal No. 142526 of 2011 decided on 11.5.2012 and recently in the case of Ram Deo Prasad Vs. State of Bihar reported in 2013 Crl. L.J. 2369 where the Hon'ble Apex Court has even substituted the sentence of death by imprisonment for life not less than the actual period of imprisonment which is extended to entire Life i.e. till natural death.
I may observe that the Courts of law cannot ignore the conditions prevailing in the Country where the law and order situation has deteriorated and worsened in the recent past. Young persons robbing innocent victims by putting them in fear of death with unhesitant and indiscriminate use of dangerous weapons on them whether or not they offer any resistance, thereby spreading terror in the society and adversely affecting the social order and faith of the people in the system. There cannot be a disconnect between the sentences so imposed by the Court on such persons involved in criminal activities and the aspirations of those who have faith in the Justice System. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 208 justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced. Crime against citizens particularly those on the right side of law has to be tackled with all earnestness. Courts of Law cannot let the things pass in the name of compassion / mercy. As observed by the Hon'ble Apex Court compassion which does more harm to the society is misplaced. Sentencing process has to be stern where it warrants and tempered with mercy where it so required to be. Citizen safety has to be our first priority and need of the hour is to instill that fear of law in the society.
Coming now to the case in hand, I may observe that this is a case relating to Multiple Killings of three persons of the same family at one location at one time. In the case of Multiple Killings the circumstances are special and it is this which takes it to the Rarest of Rare. In case of mass murders or multiple murders the circumstances are special and it is this which takes it to Rarest of Rare category or a Rare Case warranting consecutive sentencing St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 209 which would provide to be a deterrence to the serial killers and those who may commit multiple murders in a single go. Families and victims of horrific crimes receive a measure of closure by knowing that the criminals may not be released to the streets.
It is argued by the Ld. Counsels for the convicts that no death penalty can be imposed upon the convicts, the entire case being based upon the circumstantial evidence. In this regard, I may observe that the Hon'ble Apex Court in the case of Shivaji Vs. State of Maharashtra (Supra) considered as to whether or not circumstantial based conviction should be taken to be the mitigating factor and had observed that the plea that in case of a circumstantial evidence, death should not be awarded, is without any logic. It was also observed that if the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction, that have nothing to do with the question of sentence as has been observed in various cases while awarding death sentence. The Hon'ble Court was of the view that to treat circumstantial evidence as mitigating circumstances would amount to consideration of an irrelevant aspect and in a case which falls in the Rarest of Rare category death sentence should be awarded. Recently the Hon'ble supreme Court in the case of Ram Deo Prasad Vs. State of Bihar reported in 2013 Cri. L.J. 2369 had again reaffirmed this proposition by St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 210 observing that "... we should not be understood to say that in all cases of circumstantial evidence death cannot be given....".
I may observe that circumstances do not err and in the present case they clinchingly point to the hand of the accused in the murders. In the present case the crime was cleverly preplanned and committed in a brutal and diabolical manner and all the three inmates present in the house at the time of the incident have been killed in cold blood in extreme brutality. Cruel tendency of the accused is writ large from the manner of the attack. They were determined to kill all the members in the house so that none should remain to expose their misdeeds. They stooped to a ghastly crime in order to take away the valuables of the house. Their acts reflect that they do not value the life of others in the least. The crime committed shocks the conscience of the community at large and Courts. For betrayal there has to be trust, as has happened in the present case and as an eminent scholar Jose Marti puts it
- Those who spread treachery, fire and death out of hatred for prosperity of others are undeserving of mercy.
The circumstances unfolded in the case leaves this court with an irresistible feeling that the convicts are beyond reformation. Multiple Killing of the members of a family is one of the most depraved acts and such an iniquitous flagitious and becomes abominable when the victim is a child or a lady and hence I have no hesitation in holding that the case fall within the Rarest of Rare category. How much pain the surviving St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 211 family has suffered. No proof of such suffering or trauma is necessitated. It is submitted before this Court that for months the surviving members of the victims family could not sleep in the said house Well, who could have under the given circumstances? The pain of Magender Kishore the father who lost his child aged nine years, a brilliant, hardworking brother who had cracked the PSC prelims (UP) and mother most loving, is unimaginable. I am informed that after this incident he has become a psychic Anybody in his position would have.
It is writ large that the aggravating circumstances far outweigh the mitigating circumstances. From the facts as recapitulated above, it would be seen that in so far as convicts are concerned the present case falls in the category of Rarest of Rare cases, it meets three circumstances as set out in Machi Singh's case for determining rarest of rare cases. The First circumstance being that the offence is such which may be taken as shocking the collective conscience of the community justifying infliction of death penalty in as much as Deceased Mridula Kishore was a hapless housewife of 54 years and the convicts have taken advantage of her goodness. While the convict enjoyed the hospitality of Mridula Kishore who had prepared and served them lunch but the convict murdered her in cold blood only for the sake of money. Deceased Ankit Kumar was a helpless child aged 9 years and had just returned from school and taken his lunch so much so that he had not changed his school uniform when he was brutally killed in cold blood by slitting his neck St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 212 with a knife only because he happened to be present in the house when the incident took place and the convicts feared that their identity would be disclosed. Deceased Rajesh Kumar was a young boy of 28 years, brilliant in studies and was preparing for PSC Uttar Pradesh and had even cleared his preliminary examination, who was brutally killed by the convicts by slashing his throat with a knife without any instigation on his part while he was still sleeping and was not in a position to offer any kind of resistance. and hence it is this which leads me to conclude that the murder had been committed in an extremely brutal, diabolical, revolting and dastardly manner. The Second circumstance being the motive for crime which was to commit robbery and to silence/ kill all the inmates present in the house at the time of the incident who became aware of their presence without any instigation on the part of the victims. Thirdly the enormity of the crime i.e. three generations of a family (mother, son and grandson) destroyed in one strike - a happy family lost to the treachery of those whom they considered their own. It is this act of treachery played by the convicts which leads me to conclude that they are beyond reformation.
This act of the convicts in brutally killing the three members of a family including an aged woman and a child, has invited extreme indignation of the community and shocked the collective conscience of the society whose expectation from the authority conferred with the power to adjudicate, is to inflict the death sentence which is only natural St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 213 and logical. This Court cannot ignore the loud cry for justice by the society in this case involving heinous crime of murder. The Court also cannot be oblivious to the sufferings of the victims on account of the conduct of the convicts and will respond by imposition of proper sentence least people loose faith in the Judicial System and take law into their hands.
The enormity of this crime when it was committed in the year 2004 was such that it shook the Nation and so did it shake the faith of mankind in goodness. The hands which fed the convicts and the heart which cared for them, was done to death. They came as guests being related to the family, enjoyed full Indian hospitality of which we as a Nation are proud of and as if that was not enough, they then plundered, killed and escaped and all this they did, pursuant to a plan which they had cleverly carved out when they had earlier visited the family on 2728.1.2004.
Not once did their hands shake when they brutally slashed the throat of a harmless child. Not once their conscious prick when they slit the throat of a young boy in sleep. Not once did their hands shiver when they strangulated a woman who chose them over her family when she did not attend the call of her husband only because she was cooking meals for these convicts.
I ask and ponder - Do these convicts deserve any compassion or mercy when they themselves have none? To my mind any St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 214 mercy to these convicts would be misplaced and disproportionate to the enormity of the crime and hence I conclude that the only befitting punishment to which these convicts would be the rarest of rare punishments for the killing of the child Ankit, Rajesh Kishore and Mridula Kishore. This being the background, I conclude that the present case falls in the category of Rarest of Rare and I, therefore, award the following sentences to the convict Surender @ Kalwa:
1. For the offence under Section 392 r/w 394 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Ten (10) Years and fine of Rs.10,000/. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
2. For the offence under Section 302 Indian Penal Code (for committing the murder of Mridula Kishore, Rajesh Kishore and Ankit), the convict is Sentenced to Death and fine to the tune of Rs.1,00,000/ (Rs. One lakh). Accordingly he be hanged by the neck till he is dead (subject to confirmation of High Court of Delhi). The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months. St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 215
Further, I award the following sentences to the convict Vijay Pal:
1. For the offence under Section 392 r/w 394 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Ten (10) years and fine of Rs.10,000/. In default of payment of fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
2. For the offence under Section 302 Indian Penal Code (for committing the murder of Mridula Kishore, Rajesh Kishore and Ankit), the convict is Sentenced to Death and fine to the tune of Rs.1,00,000/ (Rs. One lakh). Accordingly he be hanged by the neck till he is dead (subject to confirmation of High Court of Delhi). The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
In so far as the convict Virender @ Mintu is concerned, I award the following sentences to him:
1. For the offence under Section 392 r/w 394 Indian Penal Code, the convict is sentenced to Rigorous Imprisonment (RI) for a period of Ten (10) years and fine of Rs.10,000/. In default of payment of St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 216 fine, the convict is further sentence to undergo simple imprisonment (SI) for a period of one month.
2. For the offence under Section 302 Indian Penal Code (for committing the murder of Mridula Kishore, Rajesh Kishore and Ankit), the convict is Sentenced to Death and fine to the tune of Rs.1,00,000/ (Rs. One lakh). Accordingly he be hanged by the neck till he is dead (subject to confirmation of High Court of Delhi). The entire fine amount of Rs.1,00,000/ shall be given to the family of the deceased as compensation under Section 357 Cr.P.C. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Two Months.
The convicts are informed that they can file an appeal before Hon'ble High Court of Delhi against the judgment within a period of 30 days as per Article 115 of The Limitation Act, 1963.
Certified copy of the judgment and order on sentence be given to the convicts free of cost. The convicts are also directed to be supplied with the duly attested copy of charge, evidence, statement of accused, exhibited documents free of cost.
The exhibits be preserved till the confirmation of death penalty by the Hon'ble High Court. The file be prepared as per Rule 34 of Chapter 24 Part B Vol. III of Delhi High Court Rules and be sent to St. Vs. Surender @ Kalwa Etc., FIR No.119/04, PS Rohini Page No. 217 Hon'ble High Court as per rules.
The death penalty reference in respect of the convicts is being sent to Hon'ble High Court of Delhi for confirmation of the same.
Announced in the open court (Dr. KAMINI LAU)
Dated: 3.9.2013 ASJII(NW)/ ROHINI
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