Delhi District Court
State vs Darshan Singh Fir No.456/2012 Ps ... on 31 October, 2018
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST DISTRICT : TIS HAZARI COURTS : DELHI SC No. 57015/16 FIR No. 456/2012 U/s. 302/392/201/411 IPC P.S Rajouri Garden In the matter of : State Versus Darshan Singh S/o Bana Singh Gurudwara Singh Sabha, Block No.7, Subhash Nagar Delhi. Permanent Address: Village & Post Office, Hastnapur, Tehsil Mawana District Meerut, U.P Date of Institution : 21.02.2013 Date of reserving Judgment : 30.10.2018 Date of pronouncement : 31.10.2018 Appearances For the State : Ms. Reeta Sharma, Additional Public Prosecutor. For the accused : Sh. M.S. Ahluwalia, Advocate Sessions Case No. 57015/2016 Page 1/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC JUDGMENT
1. Accused Darshan Singh S/o Bana Singh, aged 46 years, was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 16.02.2013 upon conclusion of investigation into First Information Report (FIR) No. 456/2012 of police station (PS) Rajouri Garden for offences punishable under Sections 302/201/392/411 of the Indian Penal Code (IPC),1860.
2. Prosecution Version 2.1. As per the prosecution story, on 06.11.2012 on receipt of DD No.33 at Police Picket (P.P) MIG Flats of Police Station (P.S) Rajouri Garden regarding fire in house no.J-11/129, Rajouri Garden, Assistant Sub Inspector (ASI) Mahender and Head Constable (HC) Sanjay reached at the spot. SI Shyoram as well as SHO, P.S Rajouri Garden also reached at the spot to verify and supervise the action on the call. It was found that on the first floor of house no.J-11/129, Rajouri Garden, there was smoke coming out of a room. After the fire was controlled by the fire brigade tender, dead bodies of two women were found in burnt condition in the room on the first floor. On inquiry, names of the deceased persons were revealed to be Swaran Kaur W/o Pyara Singh, aged about 75 years and her daughter Balbir Kaur, aged about 50 years. Crime team was called at the spot which inspected the spot and took the Sessions Case No. 57015/2016 Page 2/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC photographs. SI Shyoram collected the exhibits from the spot and deposited the same in the Malkhana. Both the dead bodies were sent to Deen Dayal Upadhaya (DDU) Hospital mortuary. No eye-witness was found at the spot. On 08.11.2012, proceedings under Section 174 Cr.P.C with respect to both the dead bodies were initiated and the same were handed over to their relatives after the postmortem examination. As postmortem examination report was awaited, DD was kept pending. On 18.11.2012, postmortem examination report of both the deceased was obtained. As per the postmortem examination report of deceased Balbir Kaur, cause of death was opined to be asphyxia caused by combined effect of traumatic asphyxia (kneeling over chest) and smothering. The death was opined to be homicide. As per the postmortem examination report of deceased Swaran Kaur, cause of death was opined to be due to asphyxia caused by smothering and manner was homicide. In view of the postmortem examination report, case under Section 302/201 IPC was registered on 18.11.2012 and as robbery of cash and gold bangles was reported, Section 392 IPC was also added. During the investigation, IO Inspector Ashok Kumar received information regarding involvement of accused Darshan Singh. Efforts were made to trace accused Darshan Singh S/o Bana Singh R/o Gurudwara Singh Sabha, Block No.7, Subhash Nagar, New Delhi and he was Sessions Case No. 57015/2016 Page 3/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC arrested on 19.11.2012. Accused made disclosure statement. On the instance of accused, pointing out memo was prepared and three golden bangles (from person of accused) and cash of Rs.23,000/- (from house of sister in law of accused) was recovered. Accused was also medically examined and on examination blue/black bruise were observed on his body. For the purpose of investigation, hair of his beard was also obtained through doctor. I.O got prepared the site plan of the spot from the Draughtsman, collected the postmortem report and obtained Call Detail Record (CDR) of phone no.42141 of accused, copy of CAF and cell I.D chart. As per the CDR from 01.11.2012 to 05.11.2012, location of the phone was constantly corresponding to residence of accused and on 06.11.2012, it moved to residence of the deceased i.e place of incident. IO also recorded statements of the witnesses under Section 161 Cr.P.C. 2.2. After conclusion of the investigation, the I.O came to the conclusion that sufficient evidence were collected to establish that accused Darshan Singh committed murder of Swaran Kaur (deceased) and Balbir Kaur and removed gold bangles and robbed a sum of Rs.23,000/ belonging to the deceased persons, accordingly, chargesheet was filed in the court of learned Metropolitan Magistrate who after complying with the 1 Only last four digits mentioned, keeping in view the privacy of subscriber as the judgment would be uploaded on website, accessible to all.
Sessions Case No. 57015/2016 Page 4/52State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC provisions stipulated under Section 207 Cr.P.C committed the case to the Court of Sessions.
3. Charge After hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused vide order dated 21-02-2013, charge for the commission of offences punishable under Sections 392/302/201/411 IPC was framed against accused Darshan Singh to which the accused did not plead guilty and claimed trial.
4. Prosecution Witnesses To prove the afore-mentioned charge against the accused, the prosecution examined 26 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is produced is stated herein below, in tabular form :-
Sl. NAME OF EXIHIBIT DOCUMENTAR NATURE OF NO. PROSECUTION Y EVIDENCE TESTIMONY WITNESS PW-1 Lady Ct. Sushma Ex. PW-1/A DD Entry No.33 Deposed about dated recording DD 06.11.2012 entry PW-2 Smt. Amarjeet Ex. PW-2/A Identification Deposed about Kaur (sister of statement of identification of deceased Balbir dead body.
dead bodies and Kaur and receiving the daughter of Ex. PW-2/B Identification same. She deceased statement of testified about her Swaran Kaur) dead body. suspicion on the Ex. PW-2/C Receipt of dead accused.
body Ex. PW-2/D Receipt of dead Sessions Case No. 57015/2016 Page 5/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC body.
Ex. PW- 2/E DD entry No.33.
PW-3 Devender Singh Ex. PW-3/A Seizure memo
He is star witness
(brother of of three gold
of the prosecution.
deceased Balbir bangles. He deposed
Kaur and son of about raising
deceased Swarn Ex. PW-3/B Seizure memo doubt on accused,
Kaur) of cash of recovery of stolen
Rs.23,000/- cash and jewellery
Ex. PW-3/C Arrest memo of from the accused accused. and witnessed his arrest, personal Ex. PW-3/D Personal Search search, disclosure memo of statement. He accused. also identified dead body of Ex. PW-3/E Disclosure deceased.
statement.
Ex. PW-3/F Pointing out
memo.
Ex. PW-3/G Statement
recorded by
police.
Ex. PW-3/H DD entry No.33
Ex. PW-3/I Dead body
identification
statement of
Balbir Kaur.
Ex. PW-3/J Scaled site plan.
PW-4 SI Mahesh Ex. PW - 4/ Scaled site plan. Deposed about
Kumar A inspecting the
(Draughtsman) spot and prepared
the scaled site
plan.
PW-5 Sachin - Deposed about
informing the
police about fire at
the house of the
deceased
persons, as he is
a neighbour.
PW-6 Sh. Shiv Ex. PW-6/A Rukka Deposed about
Sessions Case No. 57015/2016 Page 6/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Dayal,ACP, Ex. PW-6/B Site plan without preparing rukka Rohini scale. and preparing (Investigating unscaled site Officer) plan. He was involved in investigation after 18.11.2012.
PW-7 Sh. Rajeev Ex. PW-7/A Customer Deposed about
Ranjan (Nodal Application mobile No.4214
Officer) Form (CAF) of
and proved
mobile No.4214
Customer
Application Form
Ex. PW-7/B Copy of election (CAF), copy of ID Identity Card documents, CDR, Ex. PW-7/C Call detais Location chart and record (CDR) of certificate under mobile No.4214 Section 65 B of Indian Evidence Ex. PW-7/D Location chart Act.
Ex. PW-7/E Certificate under
Section 65-B of
Indian Evidence
Act
PW-8 HC Sanjay Deposed about
visiting the spot
and initial
investigation on
06.11.2012 upon
receiving DD
No.33 alongwith
Ct. Radha Kishan.
He also took the
bodies to DDU
Hospital for post
mortem.
PW-9 HC Bhinwa Ram Ex. PW-9/A FIR Proved the FIR,
endorsement on
Ex. PW-9/B Endosement on rukka and DD
Rukka entries.
Ex. PW-9/C DD Entry No.14-
A
Ex. PW-9/D DD entry No.17-
A
PW-10 Ct. Naval Singh Ex. PW-10/ Seizure memo He had
Sessions Case No. 57015/2016 Page 7/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC A of various accompanied SI articles seized at Shyoram to the the spot / house spot on on 07.11.2012. 07.11.2012, who had lifted various articles from the spot / house vide seizure memo.
On 21.11.2012 he had also taken parcles from MHC(M) to FSL.
PW-11 HC Radha Deposed about
Krishnan visiting the spot
and finding dead
bodies on
06.11.2012.
PW-12 Dr. B.N. Mishra Ex. PW-12/ PM Report of Conducted the
A deceased postmortem
Swaran Kaur examination and
proved the same.
Ex. PW-12/ PM Report of
B deceased Balbir
Kaur
PW-13 Ct. Parvinder Ex. PW-13/A Negatives of Proved negatives
Singh to Ex. PW- photographs and photographs
(Photographer) 13/A-19 of the place of
occurrence.
Ex. PW Photograhs
13/B-1 to B-
10
PW-14 SI Amrinder Ex. PW- 14/ Crime Team Proved the crime
Kumar A report team report as per
his visit at spot on
06.11.2012.
PW-15 Ct. Mukesh Testified about
submitting the
copy of special
report to learned
Metropolitan
Magistrate.
PW-16 Ct. Sanjay Kumar Ex. PW- 16/ Seizure memo Deposed about
A of two jar, hair, accompanying to
carboxy DDU Hospital on
haemoglobin, 08.11.2012 for
burn clothes, post mortem and
Sessions Case No. 57015/2016 Page 8/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
blood in gauze he witnessed the
piece, sample seizure of various
seal of DDU articles handed
Hospital in over by the doctor
respect of to SI Shyoram.
deceased Balbir
Kaur.
Ex. PW- 16/ Seizure memo
B of scalp hair,
carboxy
haemoglobin,
remnant of burn
clothes, blood in
gauze piece,
sample seal of
DDU Hospital in
respect of
deceased
Swaran Kaur.
PW-17 HC Sukhbir Singh Ex. PW-17/ Photocopy of Deposed about
(MHC (M) A entry at deposit of exhibits
S.No.4292 in and entry in
Register No.19. register no.19.
Ex. PW-17/ Photocopy of
B entry at serial
No.4295 in
register No.19.
Ex. PW-17/ Photocopy of
C entry at serial
No.4309 in
register No.19.
Ex. PW-17/ Photocopy of
D Road Certificate
i.e. RC
No.216/21/12.
Ex. PW-17/ Photocopy of
E Road Certificate
i.e. RC
No.217/21/12
Ex. PW-17/F Photocopy of
receipt of RC
No.216/21/12
issued by FSL.
Sessions Case No. 57015/2016 Page 9/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Ex. PW-17/ Photocopy of G receipt of RC No.21/21/12 issued by FSL PW-18 Dr. Anurag Ex. PW- 18/ MLC of accused Prepared and Ashoka A Darshan Singh. proved MLC of the accused dated 19.11.2012.
PW-19 Inspector Girish Deposed about
Kumar the investigation
after 10.12.2012.
He got scaled site
plan prepared and
obtained CDR of
the mobile
recovered from
accused. He
prepared the
chargesheet and
filed the same.
PW-20 Retired SI Ex. PW- 20/ DD entry No.34 He visited the spot
Mahender Singh A dated on 06.11.2012 and
06.11.2012 PS had called Crime
Rajouri Garden Team. He had
also put lock at
the door where
bodies were
found.
PW-21 Ct. Anoop Singh Ex. PW-21/ Seizure memo Witnessed seizure
A of hair sample of memo of hair
accused. sample of the
accused.
PW-22 HC Virender Deposed about
Singh having
accompanied IO
and SI Shyoram
and Devender
Singh on
19.11.2012 in
search of
accused. He
testified about the
arrest of accused
and the recoveries
made at his
instance.
Sessions Case No. 57015/2016 Page 10/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC PW-23 Inspector Ex. PW-23/ Death report of Deposed about Shyoram (Inquiry A deceased inquest Officer from Swaran Kaur.proceedings. He 06.11.2012 to recorded the 18.11.2012) Ex. PW-23/ Brief facts. statement of the B witnesses, sent Ex. PW-23/ Request for the dead bodies C postmortem of for postmortem Balbir Kaur. examination, made applications Ex. PW-23/ Request for for postmortem D postmortem of examination, Swaran Kaur collected the same and Ex. PW-23/ Request to prepared, and E conduct witnessed seizure postmortem of memos of articles dead body of the lifted from the Balbir Kaur. spot. He had also Ex. PW-23/F Death Report of accompanied the deceased Balbir IO after Singh. 18.11.2012 for arrest of accused Ex. PW-23/ Brief Facts. and he also G testified regarding the recoveries made at the instance of accused.
PW-24 Dr.Idresh Kumar Ex. PW-24/ Biological report. Prepared the
Mishra (Senior A biological report,
Scientific Officer serological and
(Biology) Ex. PW-24/ Serological DNA report and
B report. proved the same.
Ex. PW-24/ DNA report.
C
PW-25 Inspector Ashok Investigation was
Kumar handed over to
(Investigating him on 19.11.2012
Officer) and he arrested
accused and
recovered articles
at his instance
vide various
seizure memos.
He had also
recorded
Sessions Case No. 57015/2016 Page 11/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC disclosure statement of accused.
PW-26 Sh. M.L Meena Ex. PW- 26/ Chemical Deposed about
(Senior Scientific A examination chemical
Officer report. examination of
(Chemistry) ) Viscera and othe
samples lifted
from spot.
5. Statement of Accused
After conclusion of prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded on 16.08.2017 wherein the accused denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he has been falsely implicated in the case by Investigating Officer, who had asked Rs.1,50,000/- from him and on his refusal, he was severally beaten up and implicated in the case.
6. The accused led evidence in his defence and examined two witnesses.
SL. NAME OF WITNESS IN NATURE OF TESTIMONY
NO. DEFENCE
DW-1 Head Granthi Sh. He testified about presence of accused
Darshan Singh at the Gurudwara on 06.11.2012 and
about his apprehension by police on 14.11.2012.
DW-2 Sh. Amarjeet Kohli He being President of the Gurudwara deposed about apprehension of accused on 14.11.2012.
7. Final Arguments 7.1. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the Sessions Case No. 57015/2016 Page 12/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC State and Shri M.S Ahluwalia for the accused. I have also perused the entire material available on record. 7.2. During the course of arguments, learned Additional Public Prosecutor argued that accused is charged for the offence punishable under section 392/302/201/411 IPC as the accused committed robbery at the house of Swaran Kaur (deceased) on 06.11.2012 at J-11/129, Rajouri Garden, Delhi and robbed Rs. 23000/- and three gold bangles and thereafter committed murder of Swaran Kaur as well as her daughter namely Balbir Kaur. Further, in order to destroy the evidence, he burnt the said bodies by pouring oil over them. The charge under section 411 IPC is also made out as subsequently on 19.11.2012, three gold bangles were recovered from the accused vide seizure memo Ex. PW-3/A and cash amount of Rs.23,000/- was recovered at his instance from the house of his sister-in-law namely, Smt. Dayal Kaur. In order to prove motive as well as recoveries, the learned Additional Public Prosecutor has strongly relied upon the testimony of son of Swaran Kaur (deceased) namely Devender Singh, who deposed before the court as PW-3. The said witness stated that accused had demanded sum of Rs.2,000/- from him and he asked the accused to demand the said money from his mother namely Swaran Kaur (deceased) and thereafter accused went to the house of the deceased. She Sessions Case No. 57015/2016 Page 13/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC submitted that the said witness also exhibited the seizure memo of three gold bangles (Ex. PW-3/A) and cash amount of Rs.23,000/- (Ex. PW-3/B) besides the documents with respect to the arrest of accused. Learned Additional Public Prosecutor relied upon the testimonies of three other recovery witnesses i.e. HC Virender Singh (PW-22), PW-23 Inspector Shyoram and PW-25 Inspector Ashok Kumar. Besides that the Ld. Addl. PP also pointed out that as per the call detail record (CDR) of mobile phone of accused bearing last digits as 4214, the accused was at his residence in Gurudwara on 05.11.2018 but on the day of incident i.e. 06.11.2018, as per CDR his location changed to Tagore Garden and Khyala, which is near the place of incident and which establishes his presence at the time of incident at H. No. J-11/129, Rajouri Garden, Delhi. 7.3. Sh. M. S. Ahluwalia, learned counsel for the accused on the other hand submitted that there is no witness who had seen the accused either entering or leaving the house of the deceased persons, despite the fact that there are several houses on all sides of the said house and despite the fact that the road on which the house is situated, has a end on one side, which means that every person who visits the house can exit it only from the one end of the said road and it is not a road which is used by passer byes only to cross the society. He further submitted that PW-2 Amarjeet Kaur also Sessions Case No. 57015/2016 Page 14/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC expressed his suspicion upon the accused without any reason and without having met the accused on 06.11.2012 and further her testimony that she came to know about the incident from son of her uncle also caste a doubt upon her testimony.
As regards star witness of the prosecution PW-3 Devender Singh, learned defence counsel submitted that the demand of Rs.2,000/- from the mother of the said witness was not made in his presence and that the said witness despite being aware of the missing jewellery and cash on 06.11.2012 did not complain about the same to the police in his statement recorded between 06.11.2012 to 18.11.2012. It is further submitted that the said witness weakened the prosecution story by deposing that the arrest of the accused was made at the Gurudwara in his presence and that the stolen articles i.e. jewellery and cash was seen and counted by him at the police station. It is further submitted that the said witness also demolished the case of prosecution regarding recovery of kangan / bangles from the possession of the accused at the time of his arrest at Mayapuri, as he testified that the bangles were recovered from the room of the accused in Gurudwara. It is further submitted by learned counsel that PW-10 Ct. Naval Singh testified about recovery of pieces of cigarette of Gold Flake from the ground floor of the house which were also seized by the Investigating Sessions Case No. 57015/2016 Page 15/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Officer, which shows the presence of some third person in the house on the date of incident as the accused being a Sikh does not smoke. In this regard he has also submitted that at the time of arrest of the accused on 19.11.2012, neither any match stick nor cigarette was recovered from his person.
It was further argued that PW-20 testified that he had locked the room and that the keys of the room were with him, but the subsequent seizure memos with respect to the articles lifted from the room does not bear the signature of the said witness. Further it is submitted that PW-22 HC Virender Singh in his testimony stated that at the time of arrest, intimation regarding arrest of the accused was given to his wife, but the arrest memo does not mention the name of the wife of accused, which shows that the arrest memo was prepared in the police station and not as stated by the witnesses. It is further submitted that PW-23, who had reached the spot on 06.11.2012 itself and had visited every room in the building, has specifically stated in his testimony that neither the ground floor, nor the second room on the first floor were ransacked, which shows that the story of prosecution that the murders were committed to commit robbery is false and fabricated. It is further submitted that PW-23 stated in his testimony that statements were recorded by him on 07.11.2012. but the said statements are not on record, which raises an inference against the Sessions Case No. 57015/2016 Page 16/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC prosecution. Lastly, it is submitted that PW-25 Inspector Ashok Kumar who made arrest of the accused made various contradictions regarding arrest as well as recoveries and he also admitted that no inquiries were made from the management of the Gurudwara despite the fact that the accused used to reside in Gurudwara. Learned defence counsel has relied upon the following judgments in support of his arguments:-
• Wakkar & Anr. Vs. State of Uttar Pradesh (2011) 3 SCC 306.
• State of Karnataka Vs. Chand Basha (2016) 1 SCC 501.
• State of Haryana Vs. Jagbir Singh & Anr.
(2003) 11 SCC 261.
• Ravi & Anr. Vs. State of Karnataka AIR 2018 SCC 2744.
• Debapriya Pal Vs. State of West Bengal AIR 2017 SCC 1246.
• State of UP Vs. Sunil with Rekha Sagar Vs. State of UP AIR 2017 SCC 2150.
• Anjan Kumar Sarma & Ors. Vs. State of Assam AIR 2017 SCC 2617.
• Dhan Raj alias Dhand Vs. State of Haryana with Badal Vs. State of Haryana (2014) 6 SCC 745. • Vijay Kumar Vs. State of Rajasthan (2014) 3 SCC 412.
Sessions Case No. 57015/2016 Page 17/52State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC • Krishnan alias Ramasamy & Ors. Vs. State of Tamil Nadu (2014) 12 SCC 279.
• State of Punjab Vs. Sarup Singh 1998 SCCC 711 • State of Gujrat Vs. Ratansingh @ Chinubhai Anopsinh Chauhan 2014 (1) SCALE 293.
• Dandu Jaggaraju Vs. State of A.P. 2011 (9) SCALE 523.
• Kirti Pal Vs. State of West Bengal with Durga Sutradhar Vs. State of West Bengal & Siddique Mia & Anr. Vs. State of West Bengal & Ors. (2015) 11 SCC 178.
7.4. In rebuttal, it is argued by learned Additional PP for the State that the testimony of PW-3 Devender Singh is a clinching piece of evidence as he had categorically testified that on the day of incident he and the accused had left the house together and that the accused demanded sum of Rs.2,000/- from him, and he asked accused to ask for the said money from his mother and the accused returned to the house of the deceased. She submits that the said fact is corroborated by the fact that there is no forceful entry in the house which shows that the assailant was on friendly terms with the deceased persons.
As regards non examination of Dayal Singh, brother of PW-3 Devender Singh, who was also present in the house on 06.11.2012 as per the story of prosecution, it is Sessions Case No. 57015/2016 Page 18/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC submitted by learned Additional PP that it is the quality of evidence which matters and not the quantity thereof. That as PW-3 Devender Singh duly testified about the circumstances, hence, examination of Dayal Singh was not required.
As regards recovery of mobile phone from the accused on 19.11.2012, it is submitted by learned Additional PP that no question was ever put by the defence to the recovery witnesses about the recovery of the said mobile phone (However, it may be noted here that the said mobile phone was also not produced by the MHC(M) before the court and was never exhibited in the testimony of any witness). As regards non examination of the subscriber of mobile phone i.e. Mewa Singh, it is submitted by learned Additional PP that his examination was not necessary as the mobile phone was recovered from the person of accused on 19.11.2012 at the time of his arrest, which is sufficient to connect the mobile phone and the corresponding CDR with the accused. As regards discrepancies in the statement of PW-3 Devender Singh regarding arrest and recovery, it is submitted by learned Additional PP that the same is merely lapse of memory, as human memory is not infallible. As regards recovery of Rs.23,000/- and three gold bangles by chance on 19.11.2012, even without any complaint of theft / robbery, it is submitted by learned Additional PP that the recovery in absence of Sessions Case No. 57015/2016 Page 19/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC any allegation of robbery, further strengthen the prosecution story as the recovery was not expected by the police officials when the arrest was made. Learned Additional PP has also relied upon judgment titled Earabhadrappa @ Krisnappa Vs. State of Karnataka AIR 1983 SC 446 in support of her arguments.
JUDICIAL RESOLUTION
8. I have given my thoughtful consideration to the submissions of both the sides and have perused the record. Law - i.e. Sections in which accused is charged
9. The relevant portion of Section 390 IPC which defines 'robbery' reads as follows:-
390. Robbery (when theft is robbery)- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
The said offence is punishable under Section 392 IPC, which is reproduced as under:-
392.Punishment for robbery-Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.Sessions Case No. 57015/2016 Page 20/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
10. In the present case, accused has also been charged for commission of offence punishable under Section 201 IPC. The said Section is reproduced as under:
201. Causing disappearance of evidence of offence, or giving false information to screen offender-
Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false.
if punishable with imprisonment for life- and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
11. Accused has also been charged for commission of offence of murder punishable under Section 411 IPC. The said Section is reproduced as under:
411. Dishonestly receiving stolen property- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
12. Accused has been charged for commission of offence punishable under Section 302 IPC. The said Section is reproduced as under:
Sessions Case No. 57015/2016 Page 21/52State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
The relevant portion of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or
-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
Further, the relevant portion of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
Appreciation of evidence Sessions Case No. 57015/2016 Page 22/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
13. The evidence produced by the investigating agency against the accused can be broadly divided into following categories:-
• Oral testimony of PW-3 Devender Singh to prove presence of accused at the spot at about the time of alleged incident.
• Documentary evidence i.e. CDR of the mobile phone of the accused to prove presence of accused at the spot at the time of alleged incident. • Recovery of stolen articles i.e. Rs.23,000/- at the instance of the accused on 19.11.2012 from the house of his sister in law Smt. Dayal Kaur at H. No. WZ-182, Plot No. B-7, Vishnu Garden, Delhi, which was identified at the spot by Devender Singh.
• Recovery of Stolen articles i.e. three gold bangles, recovered from person of accused at the place of arrest i.e. Near Mayapuri Bus Stand Delhi on 19.11.2012 which were identified at spot by Devender Singh and recovery of mobile phone bearing No.4214 in personal search.
• Medical examination report as per which two bruise marks were found on the body of accused when he was got medically examined after arrest on 19.11.2012.
The court would now discuss each one of the above in detail in seratim:-
Sessions Case No. 57015/2016 Page 23/52State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
14. Oral testimony to prove presence of accused at the spot at about the time of alleged incident. 14.1. There is no eye witness of the incident and there is no witness who had seen the accused entering or leaving the house of deceased at or about the time of incident.
14.2. The only occular evidence to prove the presence of accused at about the time of incident is the testimony of Devender Singh, son and brother of deceased persons.
14.3. Devender Singh has been examined as PW-3 and he testified as regards presence of the accused on that day as under:
"Accused present in the court today was the Sewadar at Gurudwara, Singh Sabha, Seven Block, subhash Nagar, Dehi and resident of Hastinapur, Meerut. I used to visit the said Gurudwara and got acquaintance with the accused due to my visit in Gurudwara. Accused had visited my house on 05.11.2012 and 06.11.2012. He had checked the entire house. He had demanded money Rs.2,000/- from my mother and my mother declined for the same. Therefore he had committed murder of my mother and sister."
14.4. Upon reading the aforesaid testimony it seems that the said witness had himself seen the accused demanding Rs.2,000/- from his mother and as his mother declined to pay the same, hence the accused murdered the mother and sister of the witness, in his Sessions Case No. 57015/2016 Page 24/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC presence. However, it is not so, as can be seen on the second page of his examination in chief. He testified on second page as under:-
"Accused Darshan Singh had also talked with my brother Dayal Singh regarding marriage of daughter of my brother in my presence on 06.11.2012. My brother had also offered tea to him on 06.11.2012. Thereafter my brother had left the house. I and accused took tea and thereafter I and accused left the house as I had to go Kirti Nagar for some work. At that time, my deceased sister and mother were alone in the house. He had demanded Rs.2,000/- from me but I refused and I told him to take this amount from my mother and thereafter he returned back to my home for taking money from my mother and I went to Kirti Nagar. On the same day i.e. 06.11.2012 at night when I came back, I came to know about the murder of my sister and mother. I found the articles in the room of my mother scattered and her jewellery and cash were missing. Therefore, I created doubt upon the accused but later on it was confirmed that he had committed murder of my sister and mother. 14.5. From the aforesaid examination-in-chief, it becomes clear that the witness was not present when the incident took place, rather he had suspicion on the accused, because the accused demanded Rs.2,000/- from him when they had left the house and he had asked the accused to take the said amount from his mother. The witness assumes that upon being told so, the accused must have gone to the house of the witness Sessions Case No. 57015/2016 Page 25/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC and he further assumes that the accused must have demanded money from mother of the witness, who must have refused and that is why the accused must have killed the mother and the sister of the witness. It may be noted that his assumption is also based upon subsequently finding "the articles in the room of his mother scattered and her jewellery and cash missing."
14.6. It may be noted that the entire testimony after the witness asked the accused to take the money from his mother and left for Kirti Nagar, is based on assumptions, presumptions and suspicion and the same is inadmissible under Section 60 of Indian Evidence Act. 14.7. The testimony of the said witness qua the conduct of accused as on 06.11.2012 is limited to the fact that on the said day accused came to the house of the witness where accused and the witness had tea together and thereafter they left the house together and after leaving the house, the accused demanded Rs.2,000/- from the witness, to which the witness asked the accused to take the same from his mother who was in the house. The witness did not see the accused either entering his house or leaving his house after the two of them had left the house together.
14.8. Coming to the cross examination of this witness in this regard, he testified about the demand of money made by accused from his mother as under:-
"It is wrong to suggest that accused Darshan Singh did not demand any from me and from my Sessions Case No. 57015/2016 Page 26/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC deceased mother. Accused did not demand any money from my mother in my presence. Again said: Accused might have demanded the money in my presence. Again said: accused had demanded the money from my mother in my presence."
14.9. The testimony of this witness as regards whether the demand of sum of Rs.2,000/- was made by the accused from his mother in his presence or not is quite contradictory, both in his examination in chief and in his cross examination. The witness is not sure whether the demand of Rs.2,000/- was made by the accused from his mother in his presence or not. The said contradiction assumes significance for the reason that the first statement of this witness was recorded on 08.11.2012 by PW-23 Inspector Shyoram, in which he did not disclose about any demand for money made by accused either from him or from his mother.
In his cross examination he specifically stated"
"My statements were also recorded by the police on 08.11.2012 which is Ex. PW 3/G and H, which bears my signature at point A."
14.10. Though the witness wrongly identified signatures of his sister as his own on Ex. PW 3/H, however, even in his own statement Ex. PW 3/G, he never disclosed about the fact that the accused had demanded sum of Rs.2,000/- from him or that the accused demanded the said amount from his mother. The testimony of PW-3 Devender Singh regarding demand of Rs.2,000/- from Sessions Case No. 57015/2016 Page 27/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC him, seems to be an after thought to create motive for the commission of offence.
14.11. At this stage the court would like to point out that PW-3 in his first statement to the police Ex. PW 3/G on 08.11.2012 had stated that the accused talked about marriage of his daughter with Dayal Singh. PW-3 also testified about the said fact in his testimony as under:-
"............Accused Darshan Singh had also talked with my brother Dayal Singh regarding marriage of daughter of my brother in my presence on 06.11.2012.".2 "..........My brother Dayal Singh is aged about 40 years. The accused had not told me the age of the proposed girl with whom the marriage of my brother Dayal Singh was conversated. It is correct that proposed girl is not the daughter of the accused. I had not told to the police at the time of recording of my statement that it was his daughter that was required to be married but it was daughter of his brother in law. There was no genuine talk of marriage."3 14.12. Thus, the story of prosecution is that the accused wanted to marry her daughter with the brother of PW-3 and decased Balbir Kaur and son of deceased Swaran Kaur. In the opinion of the court in the Indian society it is highly improbable that a person would came to boy's house to talk about marriage of his daughter or relative , would demand money from the family members of the boy. The said improbability turns into certainty by two 2 In examination in chief.
3 In cross examination.Sessions Case No. 57015/2016 Page 28/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC facts, firstly, that PW-3 never mentioned about the alleged demand in his first statement to police Ex. PW 3/ G and secondly, interesting despite being in such grave requirement of money, the accused did not use even a single penny from the allegedly stolen articles and entire cash and jewellery was recovered after thirteen days of the incident.
14.13. The story of prosecution that the accused was in dire need of money and that he had demanded Rs.2,000/- from PW-3 Devender singh could not be proved and the said story is highly improbable for the aforesaid reasons.
14.14. PW-3 in his testimony has also stated that the accused had checked the entire house as under:-
"I used to visit the said Gurudwara and got acquaintance with the accused due to my visit in Gurudwara. Accused had visited my house on 05.11.2012 and 06.11.2012. He had checked the entire house.
14.15. The witness has stated so in his examination in chief, because the incident took place on the first floor of the property, where as per the prosecution valuable articles were kept by deceased mother. Even if the accused was known to PW-3 Devender Singh still as per PW-3 there was no reason or occasion for the accused to check the entire house, because as per the testimony of PW-3, he used to reside on the ground floor of the property. PW-3 Devender Singh failed to explain as to Sessions Case No. 57015/2016 Page 29/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC how the accused got the opportunity to check the entire house when he visited on 05.11.2012 or earlier. 14.16. At this stage itself the court would like to point out that as per the testimony of PW-23 Inspector Shyoram who reached the spot on 06.11.2012, the ground floor and other room on the first floor were not ransacked. He testified as under:-
"The front door of the room in which fire had taken place was found open when I reached at the spot. The second room on the first floor was not found ransacked. There were two rooms on the ground floor besides kitchen and bathroom. Ground floor was also in occupation of the deceased. The rooms situated at ground floor were not found ransacked. There were no almirahes in the entire house. Vol. There were boxes for keeping articles. On inquiry I had come to know that deceased Swaran Kaur with Dayal Singh used to reside at first floor whereas deceased Balbir Kaur and Devender Singh used to reside on the ground floor of the said house. Devender Singh and Dayal Singh were unmarried."
14.17. The said witness also stated that there were iron boxes in the house for keeping articles, which fact is corroborated by the photographs of the spot Ex. PW 13/ B-1 to B-10 in which one almirah and two iron boxes are visible. The two iron boxes in the said photographs seems to be locked and it is not the case of the prosecution that the articles were ransacked from the said two iron boxes or the almirah. Though, as per the prosecution there was sufficient time with the accused to Sessions Case No. 57015/2016 Page 30/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC burn the bodies using vegetable oil (as mentioned in FSL report and Post Mortem Report), but despite having so much time, it seems from the evidence on record that accused made no efforts to open the two iron boxes in the same room and remove any valuables lying therein, if the motive behind the entire incident was to rob the deceased persons, as alleged by prosecution. 14.18. The story of the prosecution that the accused burnt the bodies of deceased using vegetable oil to destroy evidence, also seems improbable for three reasons:-
a) Firstly, because a naive criminal like the present accused, who as per the prosecution had not come with the intention to commit two murders, would after commission of such an offence, at the very first instance try to run away from the spot so that he may not be caught by anyone who comes to the house.
The leisure with which the bodies were burnt with vegetable oil, can only be afforded by culprit who is certain of the fact that no one would come to house at that time. Such leisure can not be afforded by naive criminal like the accused.
b) Secondly, because if the accused had so much of time and the motive was to rob, then he would have tried to open iron boxes and also search for any other valuable article lying in the house.
Sessions Case No. 57015/2016 Page 31/52State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
c) Thirdly, because there was no reason for burning the bodies in this manner. Even, if the accused had committed the offence and even if he wanted to destroy evidence, he could have easily done so by setting the entire room on fire, where wooden bed and mattresses as well as clothes were lying, which could have easily caught fire even without any use of oil. The manner in which the bodies were burnt by pouring / sprinkling vegetable oil that too where the oil was poured for not less than 10-15 minutes (as stated in PM Report), is unique method of destroying evidence and seems highly improbable by someone who committed two murders by chance and not in pre-planned manner.
14.19. Lastly, coming to another important part of the testimony of PW-3, regarding who would be benefited by death of the two deceased, PW-3 testified as under:-
"The property bearing No. J-11/129, Rajouri Garden is in the name of my father. My father is having only one marriage. It is correct that this property after the death of my father shall devolve upon me, my brother, my sister and my mother. It is correct that after the death of my mother and sister, I and my brother are the legal heirs of the abovesaid property. It is wrong to suggest that we had committed the murder of our mother and sister. It is wrong to suggest that we have falsely implicated the accused in this case or that I am deposing falsely in this regard. Police officials had Sessions Case No. 57015/2016 Page 32/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC interrogated me and my brother in this case. It is wrong to suggest that police had raised the doubt upon me and my brother."
It is admitted by PW-3 that upon death of the deceased persons, two share holders in the property were reduced and the share of the said witness and his brother increased. However, interestingly no investigation was carried out to verify the location of this witness and that of his brother at the time of incident and merely upon suspicion by the said witness in his statement dated 08.11.2012 the investigating agency directed its investigation towards the accused 14.20. Concluding on this point, it is held that the evidence of this witness (PW-3 Devender Singh) is full of contradictions not only as regards the presence of accused at the spot on 06.11.2012, but also as regards his arrest and alleged recoveries. There are many loopholes in the prosecution story.
15. Documentary evidence i.e. CDR of the mobile phone of the accused to prove presence of accused at the spot at the time of alleged incident. 15.1. Another piece of evidence is the CDR i.e. Call Detail Record Ex. PW 7/C of mobile phone Number 4214 which is in the name of Mewa Singh and which was allegedly recovered from the possession of the accused at the time of his arrest.
15.2. The genuineness of the recovery proceedings has been dealt with separately, hence, at this stage the court Sessions Case No. 57015/2016 Page 33/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC would only analyse the said CDR to find out whether the same some how helps in proving the guilt of the accused. The CDR is for the period from 01.11.2012 to 10.11.2012 and mentions the same IMEI number as is mentioned in the personal search memo of accused Ex. PW 3/D. 15.3. As per the CDR the location of the mobile tower through which calls were made between 01.11.2012 to 10:00 AM of 06.11.2012 is of Arjun Hospital, Subhash Nagar, Delhi (Tower No.27744). Tower location on 06.11.2012 i.e. date of incident is as under:-
TIME TOWER LOCATION
10:01:05 27744 Arjun Hospital,
10:02:53 27744 Subhash Nagar,
Delhi
13:09:47 27650
15:22:57 27650 B F11 Tagore
Garden, New Delhi
15:24:57 27650
15:47:46 42240 (started) F-210, Vishnu
Garden
28548 (ended)
Shyam Nagar, new
15:48:54 28548
Khyala Road, Delhi
17:34:53 28548
21:52:40 27744 Arjun Hospital,
Subhash Nagar,
Delhi
15.4. The incident took place at J-11/129, Rajouri Garden, Delhi and as per the prosecution, the Tagore Sessions Case No. 57015/2016 Page 34/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Garden tower is the tower that covers the area of Rajouri Garden, where the incident took place. 15.5. Before analysing the call records, it is essential to see whether any evidence has been produced during trial to prove as to what is the range of one mobile tower and whether the mobile tower at Tagore Garden has range over Rajouri Garden where the incident took place or whether its range also extended to Gurudwara at Subhash Nagar where the accused resided. No question in this regard was put to PW-7 Rajeev Ranjan, Nodal Officer and no expert was examined to prove the said fact. Further no literature was produced to establish as to what is the range of one mobile tower and how the CDR establishes that the accused was present at / near the spot at the relevant time and not at the Gurudwara.
15.6. In the present case, evidence in this regard assumes significances for the reason that the area of Subhash Nagar, Tagore Garden and Rajouri Garden are adjacent to each other and fall within an area of 2-4 kms. The present case is not one where the location of mobile is so far away that the court may take notice of the fact that one mobile tower could not have overlapped with area covered by the other mobile tower. 15.7. As per the call detail records of 06.11.2012, the location of two mobile towers is relevant i.e. mobile tower no.27744 located at Arjun Hospital, Subhash Sessions Case No. 57015/2016 Page 35/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Nagar, Delhi and mobile tower No.27650 located at BF- 11 Tagore Garden, New Delhi.
15.8. To understand the location of various societies in that area the court took assistance from the map of the area (from google maps), as under:-
15.9. From the aforesaid map it is clear that Tagore Garden, Rajouri Garden and Subhash Nagar are all adjacent to each other, while Vishnu Garden and Khayala are at some distance from Subhash Nagar.
The distance from the said map are not very clear, hence, another map showing the approximate distance of the spot from the Gurudwara (residence of accused) Sessions Case No. 57015/2016 Page 36/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC and also from the two mobile towers at Tagore Garden and Subhash Nagar, is reproduced as under:-
15.10. Though the said map can not be said to be giving accurate distances between different spots, but the Sessions Case No. 57015/2016 Page 37/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC same gives an assistance to the court to understand the location of different areas to properly appreciate the CDR of the mobile phone relied upon by prosecution. 15.11. As per the aforesaid map the total distance between the Gurudwara and the mobile tower at Tagore Garden is approximate 900 meters to 1000 meters, whereas the distance between mobile tower at Arjun Hospital, Subhash Nagar and the Gurudwara is just 300 meters to 400 meters. As per the map the distance between the place of incident and the mobile tower at Tagore Garden is about 300 to 400 meters. Thus, the spot of incident is comparatively closer to the tower at Tagore Garden as compared to tower at Arjun Hospital, Subhash Nagar and the Gurudwara is comparatively closer to tower at Arjun Hospital, Subhash Nagar as compared to the tower at Tagore Garden. 15.12. Thus, the proposition put forth by the prosecution seems to be correct, but, the same is not clinching because the distance between the two towers is less than 1500 meters and with certainty one can not say that the accused was present at Rajouri Garden, hence, the call was made from tower at Tagore Garden. The said piece of evidence is not by itself sufficient to prove the presence of the accused at the spot, though, it may be of some corroborative value, to other evidence with respect to same fact.Sessions Case No. 57015/2016 Page 38/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC 15.13. It may also be noted that after the tower at Tagore Garden, the subsequent calls are from tower at Vishnu Garden and Shyam Nagar, Khyala, which are further away from the spot as well as the Gurudwara and a person going from the Gurudwara to Vishnu Garden, may also cross through Tagore Garden (or area covered by tower at Tagore Garden).
15.14. The fact that the subsequent calls are from tower at Vishnu Garden and Khyala go in favour of the accused, as it is difficult to believe the prosecution story that a naive criminal like the accused who had not come there with the motive to kill the deceased persons, after committing such a heinous offence, instead of going back to his residence, went to some place in Vishnu Garden or Khayla. Such a conduct of a first time criminal is highly improbable.
15.15. Thus, it is concluded that the call detail records of the mobile phone only has some corroborative value, to other evidence on same fact and is not by itself very reliable to conclude as to where the accused was present.
16. Recovery of stolen articles i.e. Rs.23,000/- at the instance of the accused on 19.11.2012 from the house of his sister in law Smt. Dayal Kaur at H. No. WZ-182, Plot No. B-7, Vishnu Garden, Delhi, and recovery of Stolen articles i.e. three gold bangles, recovered from person of accused at the place of arrest i.e. Near Sessions Case No. 57015/2016 Page 39/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC Mayapuri Bus Stand Delhi on 19.11.2012 which were identified at spot by Devender Singh and also recovery of mobile phone bearing No.4214 in personal search. 16.1. As per the prosecution story, a sum of Rs.23,000/- was stolen by the accused besides three gold bangles from the house of the deceased persons on 06.11.2012 and out of the said stolen articles the sum of Rs.23,000/- in cash was recovered at the instance of accused on the date of his arrest i.e. 19.11.2012 from the house of his sister in law namely Smt. Dayal Kaur.
16.2. Firstly, the prosecution is required to prove that the amount of Rs.23,000/- and three gold articles were stolen by the accused from the house of the deceased on 06.11.2012.
In order to prove the said fact the prosecution has only examined the son of deceased Swaran Kaur, namely Devender Singh as PW-3 who has testified about the theft on page 2 of his examination in chief as under:-
"On the same day i.e. 06.11.2012 at night when I came back, I came to know about the murder of my sister and mother. I found the articles in the room of my mother scattered and her jewellery and cash were missing. Therefore, I created doubt upon the accused but later on it was confirmed that he had committed murder of my sister and mother. My statements were also recorded by the police on 08.11.2012, which is Ex. PW 3/G and H, which bears my signature at point A."Sessions Case No. 57015/2016 Page 40/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC As per the aforesaid testimony PW-3 came to know about the missing jewellery and cash on the night of 06.11.2012 itself and he also made statement to the police on 08.11.2012 which is Ex. PW 3/G. The statement Ex. PW 3/H is of Devender Kaur W/o Sh. Wazir Singh and daughter of deceased Swaran Kaur but the said statement was also identified by this witness as his own statement given to the police on 08.11.2012 and he also identified the signature of said Devender Kaur as his own signatures.
Perusal of the said statement Ex. PW 3/G, given by this witness to the police on 08.11.2012, during inquest proceedings, reveals that in the said statement he did not mention two very important facts, which now the prosecution wants to prove to connect the accused to the offence, which are:-
• Firstly, in the statement it is not mentioned that the accused demanded a sum of Rs.2,000/- from this witness and that he had asked the accused to take the said amount from his mother.
• Secondly, there is no mention in the said statement that jewellery or cash was found stolen from the house of the deceased or that the articles in the room of the deceased mother were found scattered by this witness.
For the first time the story of robbery by way of theft of Rs.23,000/- in cash and three gold bangles came on the Sessions Case No. 57015/2016 Page 41/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC record in the disclosure statement of the accused himself. It may be noted that the disclosure statement of the accused was recorded on 19.11.2012 i.e. 13 days after the incident which took place on 06.11.2012 and in this period of 13 days no complaint of missing of any jewellery articles or cash was made either by PW-3 Devender or by PW-2 Amarjeet Kaur or by any other family member of the deceased persons. Thus, the theft of the said articles was never complained by any person till the time of alleged recovery.
16.3. Now coming to the recovery of Rs.23,000/-. The said recovery was neither made from the person of the accused at the time of his arrest during his search, nor the same was recovered from the room of the accused in the Gurudwara. As per the prosecution the said amount of Rs.23,000/- was recovered at the instance of accused from house No. WZ-182, Plot No. B-7, Vishnu Garden, Delhi belonging to Smt. Dayal Kaur, who is sister in law of the accused, vide seizure memo Ex. PW 3/B. The said 46 currency notes of denomination of Rs.500/- were duly identified by PW-3 Devender Singh at the time of seizure of the said currency notes on 19.11.2012 and he subsequently again identified the said currency notes in the court as Ex. P-1, without any clarification as to how he was able to identify the said currency notes in absence of any particular mark upon them and also without any explanation as to why he had Sessions Case No. 57015/2016 Page 42/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC not informed about the missing of the said currency notes to the police between 06.11.2012 and 18.11.2012. 16.4. Coming to the evidence of this witness, as regards the recovery and identification of the articles, the witness testified in his examination in chief as under:-
"Police has recovered jewellery of my mother i.e. kangan and cash Rs.23,000/- from him. Accused got recovered Rs.23,000/- from the house of his relative Dayal Kaur from Vishnu Garden, Delhi and three kangan / churiya from his room of Gurudwara...............Accused was arrested on 19.11.2012 and Rs.23,000/- and three kangans were recovered from his possession. Same were seized by the IO vide seizure memo Ex. PW 3/A (kangan) and Ex. PW 3/B (cash of Rs.23,000/-). He was arrested by the police at my instance from the Gurudwara vide arrest memo Ex. PW 3/C, which bears my signature at point A.........IO had sealed the three kangans / churiya of mother and Rs.23,000/- in a separate cloth parcel which were sealed by the IO."
The testimony of this witness with respect to recovery of Rs.23,000/- in cash and three gold bangles is not consistent as at one place he stated that the recovery of the cash was made from the house of Dayal Kaur at Vishnu Garden, whereas on the other hand he stated that the said amount was recovered from the possession of the accused. The witness also stated that the accused was arrested from the Gurudwara at his instance, which fact is also incorrect as per the Sessions Case No. 57015/2016 Page 43/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC arrest memo, because as per the arrest memo the arrest was made at Mayapuri. Even as regards the recovery of three kangans / churiya the testimony of this witness is quite inconsistent as at one place he stated that the three kangan / churiya were recovered from the room in the Gurudwara, whereas on the other hand he also stated that the said jewellery was recovered from the possession of the accused upon his arrest on 19.11.2012. The said inconsistency and contradictions in the testimony of this witness continues even in his cross examination, the relevant portion of which is reproduced as under:-
"..............It is correct that the articles were shown to me at the police station.......I had accompanied the police at the time of recovery of jewellery from the accused but I do not have any receipt / bill of the same. The jewellery might be of 3-4 tolas. The currency notes were of the denomination of five hundred each. I had seen the same in the police station. I counted the currency notes in the police station and I had signed some documents at the police station in this regard. Perhaps I had signed the said documents on 12.11.2012. Said currency notes were kept in a plastic container. Voltd. Accused had confessed his guilt as well as disclosed that he had committed the murder of the deceased i.e. my mother and committed the robbery. My deceased was getting pension and I also used to give her money about daily expense..........I met to the police on 06/07/12/14/19.11.2012.Sessions Case No. 57015/2016 Page 44/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC 16.5. In the cross examination as reproduced above, the witness testified that the allegedly stolen articles were shown to him at police station and that the currency notes were not only shown, but were also counted at the police station. It was argued by learned Additional PP for the State that the recovered stolen articles were seized in transparent plastic box and therefore the testimony of PW-3 regarding having seen the case property in the police station is consistent with the recovery and seizure of the said articles. However, the court is not convinced by the said argument of learned Additional PP for the reason that even if the currency notes were in transparent plastic box, still the same could not be counted, as is specifically testified by PW-3 Devender Singh. Therefore, the recovery of the three gold bangles and Rs.23,000/- at the instance of the accused on 19.11.2012 seems to be doubtful from the testimony of this witness.
16.6. The said doubt is further strengthened by the testimony of three police officials namely PW-22 HC Virender Singh, PW-23 Inspector Shyoram and PW-25 Inspector Ashok Kumar. The said three police witnesses in their examination in chief testified about the recovery of Rs.23,000/- from the house of Dayal Kaur (sister in law of accused) and the three bangles from the person of the accused at the time of his arrest, but in their cross examination when they were questioned about as to Sessions Case No. 57015/2016 Page 45/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC from which pocket the gold articles were recovered from the person of accused, they testified differently. PW-22 stated that "the bangles were recovered from the pocket of kurta of accused on 19.11.12" whereas PW-23 and 25 stated that the bangles were recovered from the pocket of the pant of the accused. Thus, there is contradiction in the testimony of the police witnesses also with respect to the fact as to from where the bangles were recovered. 16.7. It may be noted here that the incident took place on 06.11.2012, whereas the FIR in the present case was lodged on 18.11.2012 and the accused was arrested after thirteen days of the incident on 19.11.2012. During the inquest proceedings as PW-3 Devender Singh had expressed his suspicion upon the accused, therefore, statement of the accused was also recorded on 08.11.2012 by PW-23 Inspector Shyoram. Therefore, the accused was very well aware on 08.11.2012 itself that the incident that took place on 06.11.2012 was under investigation and the prosecution claims that despite having knowledge of the said fact on 08.11.2012 the accused kept the stolen bangles in his possession till 19.11.2012 when they were allegedly recovered from his possession at the time of his arrest. The said proposition put forth by the prosecution is highly improbable for the reason that a person who had committed two murders and had also tried to hide evidence by burning the dead bodies, would even after Sessions Case No. 57015/2016 Page 46/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC being aware of the fact that the incident is being investigated by the police and that the police approached him to know about the incident, would still keep the said gold articles in his possession for another eleven days, after 08.11.2012 when his statement was recorded by the police, as if he was waiting for the registration of the FIR on 18.11.2012 for the disposal of the gold articles. The arrest of the accused by chance at Mayapuri Bus Stand on 19.11.2012 i.e. a day after the registration of the FIR and the chance recovery of three gold bangles which were not claimed to have been stolen by anyone till 18.11.2012, is highly improbable and seems to be an effort of the investigating agency to somehow solve the case being a double murder case. 16.8. It may be reiterated that a criminal who has committed such a henious offence and who tried to get rid of the dead bodies by burning them would never keep the gold bangles in his possession, specially after being aware that his name has also figured in the investigation, such a culprit would try to get rid of all the evidence that could implicate him in the offence and would not keep such strong evidence like the gold articles with him for thirteen days, as if waiting for the police to recover the same and catch hold of him. 16.9. The accused in the present case, if he was really the culprit could have easily got rid of the gold articles in a day or two after the incident and surely after his Sessions Case No. 57015/2016 Page 47/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC statement was recorded by police on 08.11.2012. The story of the prosecution that a chance recovery of the said articles was made on 19.11.2012 is highly improbable and unbelievable in the facts of the present case.
16.10. To sum up, the recoveries shown to have been made from accused on 19.11.2012 are shrouded with doubts and can not be relied upon to connect the accused with the offence of murder of Swaran Kaur and Balbir Kaur, for the following reasons:-
a) Firstly, because no complaint of theft of the said goods i.e. cash of Rs.23,000/- and three gold bangles was ever reported from date of incident till the arrest of accused.
b) Secondly, because PW-3 Devender Singh stated in his testimony that on 06.11.2012 when he came back home, he saw the articles in the room of her mother (deceased) scattered and jewellery and cash missing, but in his statement dated 08.11.2012 to the police during inquest proceedings, he did not mention the said fact.
c) Thirdly, because as per PW-3 Devender Singh the gold bangles were recovered from the room of accused in Gurudwara, whereas as per police witnesses the same were recovered from the person of accused at the time of his arrest on 19.11.2012.
d) Fourthly, because as per PW-2 the bangles were recovered from the pocket of kurta of accused, whereas as per PW-23 and 25, the bangles were recovered from pocket of pant of accused.Sessions Case No. 57015/2016 Page 48/52
State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC
e) Fifthly, because not only the arrest of the accused is by chance (or by luck) at Mayapuri Bus Stand but the recovery of gold articles is also by chance on that day itself i.e. after 13 days of the incident.
f) Sixthly, because it is highly improbable that the accused, who as per the prosecution tried to get rid of the dead bodies by burning them so as to destroy evidence against him, kept the gold bangles with him for thirteen days, as if waiting for them to be recovered by police.
g) Seventhly, because as per PW-3 Devender Singh the accused was arrested at Gurudwara, which fact is also corroborated by testimonies of DW-1 and DW-2, whereas as per the police officials the accused was arrested at Mayapuri Bus Stand, where the recoveries were made.
h) Eighthly, because PW-3 Devender Singh testified that he had seen the recovered articles and counted the currency notes at police station and had also signed documents with respect to the same at police station on 12.11.2012, i.e. much prior to date of alleged recovery and arrest.
i) Ninthly, because the call records of the mobile phone were obtained much later, but they were obtained for the period between 01.11.2012 to 10.11.2012, whereas the same should have and could have been easily obtained for the period from the date of incident to date of arrest, as it would have corroborated the evidence regarding arrest and alleged recoveries.
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j) Lastly, because sister in law of accused, namely Smt. Dayal Kaur was neither cited nor examined as witness to prove recovery of Rs.23,000/- from her house and also because there are contradiction as regards arrest of accused on 19.11.2012 and as to who was informed about the arrest of accused on that day. Further it is also interesting to note that though as per prosecution the accused required Rs.2,000/- urgently for which he committed two murders, but when he took away Rs.23,000/- from the house of the deceased, he did not use even a single penny (what to talk of Rs.2,000/-) from the said amount and handed over the entire amount to his sister in law, which is highly improbable.
17. Medical examination report as per which two bruise marks were found on the body of accused when he was got medically examined after arrest on 19.11.2012.
17.1. The accused was medically examined after his arrest on 19.11.2012 at 11:20 PM by PW-18 Dr. Anurag Ashoka of DDU Hospital, who exhibited the MLC as Ex. PW 18/A and testified in his examination in chief that upon examination of the accused he found bruise over bylateral buttock bluish black in colour and bruise over right deltoid region.
17.2. Neither in the MLC nor in the examination before the court the said doctor has stated as to whether the said two injuries mentioned in the MLC were 10-15 days old, nor any open question as regards the approximate time when the said injuries were caused, was put to the said witness during his examination. In the MLC it is not Sessions Case No. 57015/2016 Page 50/52 State Vs Darshan Singh FIR No.456/2012 PS Rajouri Garden U/s 392/302/201/411 IPC mentioned that the said injuries were old and at the bottom of the said two injuries, it is stated that "no evidence of any fresh external injury seen over visible part of body". The rider put at the end of the aforesaid statement i.e. visible part of the body, reflects that after examining the accused, the doctor found two injuries on those parts of the body which are not visible because of the clothes i.e. shoulder and buttock and that on the visible parts of the body, there was no evidence of any fresh injury.
17.3. Perusal of the MLC and the testimony of examining doctor PW-18 does not lead to the conclusion that the said injuries were caused to the accused when he committed the offence alleged on 06.11.2012. Rather, from the MLC it seems that the said two injuries were fresh and that beside the said two injuries, there were no other fresh external injuries on visible parts of the body. 17.4. Therefore, the arguments of learned Additional PP for the state that the bruises on the body of the accused as mentioned in the MLC Ex. PW 18/A were caused during the scuffle between the accused and the deceased that took place at the time of incident on 06.11.2012 is not supported either by the documentary evidence Ex. PW 18/A or by oral testimony of examining doctor PW 18 Dr. Anurag Ashoka.
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18. Final Order 18.1. In the given facts and circumstances as discussed above, the prosecution has failed to prove the chain of circumstances that may lead to the conclusion that it was the accused who committed the offence alleged and in absence of such proof accused Darshan Singh son of Bana Singh is entitled to acquittal. Accordingly accused Darshan Singh son of Bana Singh is acquitted of offences with which he was charged i.e. offences under sections under Sections 392/302/201/411 IPC 18.2. Family members of Darshan Singh is hereby referred to District Legal Service Authority, West, for consideration of suitable compensation amount. 18.3. In view of Section 365 Cr. P.C, a copy of the judgment be also sent to District Magistrate concerned for his information.
18.4. A copy of the judgment be also sent to worthy Commissioner of Police, Delhi, for his perusal and necessary action.
19. File be consigned to Record Room after necessary compliance. SAURABH Digitally signed by SAURABH PARTAP PARTAP SINGH SINGH LALER LALER (Pronounced in the open Court on 31.10.2018) (S.P.S Laler) Additional Sessions Judge (Pilot Court) West:Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 57015/2016 Page 52/52