Delhi District Court
State vs . (1) Rajnish on 24 April, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE -II
(NORTHWEST) ROHINI COURTS: DELHI
Session Case No. 1234/2010
Unique Case ID No. 024040202292010
State Vs. (1) Rajnish
S/o Sh. Hira Lal
R/o Village Dharkuan
PS Pisawa, Distt. Sitapur,
Uttar Pradesh
Also at:
N22/B330,
Kaushalpuri, Lal Bagh,
Azadpur, Delhi
(Convicted)
(2) Hans Raj
S/o Sh. Khem Karan
R/o Village Prempur,
PS Pisawa, Distt. Sitapur,
Uttar Pradesh
Also at:
N22/B330,
Kaushalpuri, Lal Bagh,
Azadpur, Delhi
(Convicted)
(3) Mrs. Shobha
W/o Rajnish
R/o Jhuggi No. N22/ B330,
Kaushal Puri, Azadpur, Delhi
(Convicted)
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 1
FIR No.: 136/2010
Police Station: Adarsh Nagar
Under Section: 302/201/34 Indian Penal Code
Date of committal to Sessions Court: 15.9.2010
Date on which orders were reserved: 4.4.2012
Date on which judgment announced: 12.4.2012
JUDGMENT:
1. As per allegations on the intervening night of 16/17.5.2010 at Jhuggi No. 1, Kaushal Puri, Near Railway Line, Lal Bagh, Azadpur, Delhi all the three accused in furtherance of their common intention caused the death of deceased Rohit by strangulating him. It is further alleged that in furtherance of their common intention all the accused tried to disappear/ dispose off the evidence of crime i.e. the dead body of Rohit in order to screen themselves from the legal punishment.
BRIEF FACTS/ CASE OF THE PROSECUTION:
2. The case of the prosecution is that on 17.5.2010 at about 5:38 AM an information from PCR was received at Police Station Adarsh Nagar regarding a dead body lying at Lal Bagh, Kaushal Puri, Delhi pursuant to which DD No. 8A was lodged after which Inspector Brij Pal Singh reached the spot where ASI Kuldeep and Ct. Naveen along with PCR officials were found present. One gathri of grey colour of a chaddar type shawl was found lying at the spot and on opening the same it was containing dead body of a boy aged about 1617 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 2 years. Blood clots were found on the mouth of the deceased and there were injury marks on the face and marks of strangulation were also found present on the next of the body. At about 8:15 AM one Pintoo Yadav come the spot and identified the dead body as that of this brother Rohit after which the present case was got registered. At about 11:15 AM two other brothers of the deceased namely Chhotey and Susheel also came to the spot and informed the Investigating Officer that on the previous night two friends of Rohit namely Rajnish and Hans Raj had come to their house at about 9:3010:00 PM. They further informed the police that both Rajnish and Hans Raj asked them about Rohit on which they informed them that Rohit might be available at Railway Station Azadpur and asked them to locate Rohit there. Chhotey also informed the police that after taking dinner he along with his brother Susheel had gone to the Railway Station Azadpur and were taking a walk on the platform when they saw Rajnish and Hans Raj with Rohit while they were all standing and talking to each other and after sometime they (i.e. accused Rajnish and Hans Raj and deceased Rohit) left towards the house of Rajnish at Kaushalpuri. Both Chhotey and Susheel raised their suspicion on accused Rajnessh and Hans Raj to be the murderer of Rohit after which the Investigating Officer went to the house of Rajnish and Hans Raj but they could not be found available. On the same day at about 2:00 PM one Sudama a resident of the same area met the Investigating Officer and informed him that on the intervening night of 1617.5.2010 at about 1:302:00 AM (midnight) he had seen Rajnish and Hans Raj carrying away a gathri at the place where the said gathri was found lying in St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 3 the morning.
3. Thereafter efforts were made to trace out the accused persons but they could not be found. On the basis of the secret information on 21.5.2010 the accused Rajnish and Hans Raj were apprehended from Anand Vihar ISBT and during interrogation both the accused admitted having committed the murder of Rohit and also disclosed the involvement of Shobha the wife of accused Rajnish. During investigations both the accused Rajnish and Hans Raj got recovered the purse belonging to the deceased Rohit and the accused Shobha got recovered the salwar with which they had strangulated the deceased. After the completion of investigations charge sheet was filed against all the accused in the Court.
CHARGE:
4. This Court had settled the charges under Section 302/201/34 Indian Penal Code against all the accused to which they pleaded not guilty and claimed trial.
EVIDENCE:
5. In order to prove its case the prosecution has examined as many as twenty one witnesses but before discussing the same, the list of witnesses and the documents so exhibited are briefly culled out in a tabulated form for the sake of convenience:
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 4
List of witnesses:
Sr. No. Name of the Witness Category of witness
1 SI Matadin Meena Crime Team Incharge
2 SI Manohar Lal Draftsman
3 Ct. Parvinder Singh Photographer of the Crime Team
4 HC Raghubir Singh Duty Officer
5 Ct. Mukund Police witness
6 HC Laxmi Narayan Police witness/ MHCM
7 Dr. Kul Bhushan Goel Autopsy surgeon
8 Ct. Subhash Photographer of the police
9 Ct. Naveen Police witness
10 Ms. Poonam Sharma Forensic expert
11 Inder Pal Public witness/ Photographer
12 Sushil Yadav Brother of the deceased (last seen)
13 Pintoo Brother of the deceased (last seen)
14 Sudama Resident/ neighbour of the accused
who had seen the accused taking
the gathri
15 Ct. Zakir Hussain Police witness
16 Chhotey Yadav Brother of the deceased (last seen)
17 Ct. Mithilesh Police witness
18 SI Govind Police witness
19 Ct. Rahul Tyagi Police witness
20 HC Pritam Chand Police witness
21 Inspector Brij Pal Investigating Officer
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 5
List of Documents exhibited:
Sr. Document Details Proved by
No. exhibit No.
1. Ex.PW1/1 Affidavit of SI Matadin Meena SI Matadin
2. Ex.PW1/A Inspection Report Meena
3. Ex.PW2/1 Affidavit of SI Manohar Lal SI Manohar Lal
4. Ex.PW2/A Scaled site plan
5. Ex.PW3/1 Affidavit of Ct. Parvinder Ct. Parvinder
6. Ex.PW3/A1 Photographs
to PW3/A10
7. Ex.PW3/B Negatives of the photographs
8. Ex.PW4/1 Affidavit of HC Raghubir Singh HC Raghubir
9. Ex.PW4/A Copy of FIR Singh
10. Ex.PW4/B Endorsement on the rukka
11. Ex.PW5/1 Affidavit of Ct. Mukund Ct. Mukund
12. Ex.PW6/1 Affidavit of HC Laxmi Narayan HC Laxmi
13. Ex.PW6/A Entry No. 3618, 3619, 3623 in Register Narayan
No. 19
14. Ex.PW6/B Entry No. 67/21/10 in Register No. 21
15. Ex.PW6/C FSL Receipt
16. Ex.PW10/A Biological Report (FSL) Ms. Poonam
17. Ex.PW10/B Serological Report (FSL) Sharma
18. Ex.PW11/X Photograph of the spot after lifting the Inder Pal
dead body
19. Ex.PW12/A Statement of Sushil Sushil Yadav
20. Ex.PW12/B Receipt of dead body
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 6
21. Ex.PW13/A Seizure memo of blood sample Pintoo Yadav
22. Ex.PW13/B Seizure memo of blood stains
23. Ex.PW13/C Seizure memo of earth control
24. Ex.PW13/D Seizure memo of blood stained chaddar
25. Ex.PW13/E Seizure memo of sandals
26. Ex.PW13/F Dead body identification memo
27. Ex.PW15/A Seizure memo of two parcels Ct. Zakir Hussain
containing clothes
28. Ex.PW16/A Arrest memo of accused Rajnish Chottey Yadav
29. Ex.PW16/B Arrest memo of accused Hans Raj
30. Ex.PW16/C Personal search memo of accused
Rajnish
31. Ex.PW16/D Personal search memo of accused Hans
Raj
32. Ex.PW16/E Disclosure statement of accused
Rajnish
33. Ex.PW16/F Disclosure statement of accused Hans
Raj
34. Ex.PW17/A Pointing out memo L/ Ct. Mintesh
35. Ex.PW17/B Arrest memo of accused Shobha
36. Ex.PW17/C Personal search memo of accused
Shobha
37. Ex.PW17/D Disclosure statement of accused
Shobha
38. Ex.PW17/E Seizure memo of bed sheet
39. Ex.PW17/F Seizure memo of salwar
40. Ex.PW19/A Seizure memo of the articles belonging Ct. Rahul Tyagi
to the deceased got recovered by the
accused
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 7
41. Ex.PW21/A DD No. 8A Insp. Brij Pal
42. Ex.PW21/B Rukka
43. Ex.PW21/C1 Photographs
to PW21/C20
44. Ex.PW21/D Site plan
45. Ex.PW21/E Application for preserving the dead
body
46. Ex.PW21/F Application for postmortem
47. Ex.PW21/G Brief facts
48. Ex.PW21/H Inquest form
6. Now coming to the testimonies of the various prosecution witnesses, the same are being discussed as under:
Public witnesses/ eye witnesses:
7. PW11 Inder Pal has deposed that he is running his shop as photographer at Lal Bagh and on 17.03.2010 he was called by Investigating Officer to took the photographs at B1, Kaushal Puri, Lal Bagh. According to him on the request of Investigating Officer he took ten photographs from his digital camera where a dead body was lying and after developing the same he handed over the photographs to the Investigating Officer which photographs are Ex.PW3/A1 to Ex.PW3/A10. He has proved the photograph which was took by him after lifting the dead body is Ex.PW/11X which is part of the said photographs and during developing the positives were not tampered in any manner.
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 8
8. In his cross examination by Ld. Defence counsel the witness has deposed that he reached at the spot where the dead body was lying at about 8:50 am and it took about 1520 minutes to take the photographs. According to him, the dead body was wrapped when he reached the spot but the same was lying in open condition as shown in photographs and the dead body was removed by the police officials at about 9:009:20 AM. The witness has further deposed that his statement was recorded at the spot. He has denied the suggestion that the photographs were tampered while developing.
9. PW12 Sushil Yadav is the brother of the deceased who has deposed that on 16.05.2010 he returned to his house after plying the rickshaw and when he reached at the house his mother and his brother met him there. According to him, accused Rajnish and Hans Raj came to the house at about 9:00 pm and inquired about his brother Rohit on which his brother namely Chhotey replied that Rohit had gone towards station. The witness has further deposed testified that after taking meals he along with his brother Chhotey went towards station for walk and after reaching there near the phatak they noticed that both the accused namely Hans Raj and Rajnish and his brother Rohit (since deceased) were talking with each other, thereafter both the accused along with Rohit went towards Kaushal Puri, Lal Bagh and he along with Chhotey returned to his house. He has also deposed that on the following day they came to know that the dead body of his brother Rohit was lying at the station on which he reached there from vegetable market where he was working and reached the spot where he only found his brother Chhotey but not the dead body of Rohit. However, St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 9 the police officials were present there. According to PW12, he along with his brother went to the mortuary of Babu Jagjeevan Ram Memorial Hospital mortuary where he identified the dead body of his brother Rohit vide his statement Ex.PW12/A. The witness has further deposed that after the postmortem they received the dead body vide receipt Ex.PW12/B. He has testified that he was sure that both the accused had murdered his brother Rohit.
PW12 has also deposed that he was interrogated by police and his statement was recorded and has further added that his brother was not having any enmity and both the accused are liable for the murder of his brother. He has correctly identified the accused Rajnish and Hans Raj in the Court
10. During his cross examination by Ld. Defence counsel the witness has admitted that Rohit used to commit small thefts and whatever he earned from the same he spend on womanizing and liquor. He has voluntarily explained that Rohit used to commit theft in the company of both the accused. According to him, he did not disclose this fact to the police and has denied the suggestion that he did not tell to the police about the association of accused Hans Raj and Rajnish with the deceased Rohit because the accused Hans Raj and Rajnish have never been involved in any theft case along with the deceased. He has testified that he presumed that Rohit was into bad ways since he was not doing any work and used to loiter around at the station the entire day. He has further deposed that all the friends and associates knew that Rohit could be found at the station at any time and has added that sometimes Rohit even slept at Azadpur Station and sometimes with the accused. PW12 has admitted that both the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 10 accused persons were very good friends of Rohit but has denied the suggestion that Hans Raj lived separately from Rajnish. According to him Hans Raj used to ply rickshaw and has explained that he used to ply a rickshaw in the Mandi. He has testified that he reached at about 9:00 am and returned home by 9:00 to 10:00 pm. The witness has also deposed that at the time when Rajnish and Hans Raj came to his house he along with his mother and Chhotey were at home. According to PW12, when he noticed the accused persons with his brother Rohit he did not ask them as to why they were standing there because both the accused were having friendly relationship with Rohit. He has explained that the accused and Rohit were at a distance 1015 steps from the spot from where they (he and his brother) noticed them. He has denied the suggestion that there was no sufficient light at the place where the accused were standing and has voluntarily added that the light was sufficient. He has denied the suggestion that both the accused persons did not came to their house on the previous night of the murder of Rohit or that he was not present at that time or that he did not visit the station where the dead body was lying.
11. PW13 Pintoo Yadav is also the brother of the deceased who has deposed that they are five brothers namely Kamlesh, Sushil, Rohit and Chotu. According to him, Kamlesh and Sushil used to ply rickshaw whereas he along with Chotu used to work in Azadpur market. He has testified that his brother deceased Rohit was jobless and was into mischievous jobs and whatever he (Rohit) used to earn he used to spend on bad habits of womanizing and drinking due to which he (Rohit) was also scolded by his mother. Witness has further St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 11 deposed that on 16.05.2010 after he reached home he had his dinner and went off to sleep and on17.05.2010 morning he went to the Mandi and at about 8:008:30 am he came to know that the dead body was lying near the railway line near the house of Rajnish on which they went to the spot when he found that the deceased was his brother. According to PW13 the police was already present at the spot and he identified the dead body of his brother which was wrapped in a shawl and he also noticed some dark spots on the neck of the dead body of his brother. He has testified that the police prepared some report in his presence and sent it to Police Station and after some time the police constable returned to the spot after which the body was sent to the mortuary of BJRM Hospital. According to the witness, he remained at the spot where the police prepared the site plan of the place where the dead body was lying tied in a shawl and the photographs of the site were also taken in his presence and the spot was duly inspected by some police officials. Witness has further deposed that while he was present at the spot with the dead body of his brother Rohit, his other brothers Sushil and Chotu who had also come to the spot told him that on 16.05.2010 i.e. one night prior Rajnish and Hans Raj had come to their house and were looking for Rohit. According to him, he knew Rajnish and Hans Raj since they were associated with Rohit and were also involved in many small crimes along with his brother Rohit and were known to him prior to this incident because they belong to a village which is adjoining his native village. He has proved that police lifted the blood lying at the spot with the help of a cotton, blood stained earth with the help of a chini, earth control, chaddar and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 12 sandal of his brother which articles were converted into a pullanda and various documents were prepared where he had signed. He has proved the seizure memo of the blood sample which is Ex.PW13/A; seizure memo of blood stains which is Ex.PW13/B; the seizure memo of earth control which is Ex.PW13/C; seizure memo of blood stained chadar which is Ex.PW13/D and seizure memo of sandal which is Ex.PW13/E which documents according to the witness were prepared and he had signed them at the spot itself. He has testified that on 18.05.2010 he along with his brother Sushil and other relatives went to BJRM Hospital mortuary where he identified the dead body of his deceased brother vide identification memo Ex.PW13/F. According to the witness, he had also signed the memo regarding the receipt of the dead body which is Ex.PW12/B.
12. He has correct identified the accused Rajnish and Hans Raj in the Court and also the case property i.e. chappal/sandal of his deceased brother which is Ex.P2; a shawl/chadar of his deceased brother which is Ex.P3; blood lifted from the spot which is Ex.P4; blood stained earth lifted from the spot which is Ex.P5; earth control lifted from the spot which is Ex.P6.
13. In his cross examination by Ld. Defence counsel the witness has deposed that he had given his statement to the police at the spot where the dead body of his brother was lying which statement is Ex.PW13/DX1. According to the witness, he had told the Investigating Officer that Rajnish and Hans Raj were involved in many petty crimes along with his brother Rohit but when confronted with his statement Ex.PW13/DX1 the said aspect was not found St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 13 mentioned. He has testified that he was aware that his brother was into petty crimes because he had observed him consuming alcohol at home along with his friends who were all into wrong ways and has voluntarily explained that they used to commit small snatchings and thereafter sell what they had stolen after which they used to consume alcohol. According to the witness, he was not aware if there were any criminal cases against his deceased brother or any of his friends. He has denied the suggestion that his brother often quarreled with people and has voluntarily added that he had never seen him having any problem with anybody. The witness has also deposed that his house was near the railway station and therefore most of the time when his brother used to drink, he slept at the railway station they were aware of the same. Witness has further stated that he used to leave for Mandi at about 6:00 AM and there is no fixed time when he returned home. He has also deposed that on 16.05.2010 he returned home after 9:00 PM but he does not remember the exact time and states that when he returned home only his mother was present. According to him, his other brothers ply rickshaw and come home at different times and has voluntarily added that they were not present in the house. He has deposed that it hardly took him about 1520 minutes to have his dinner and thereafter he went to sleep and came to know that a dead body was lying near the railway track at about 8:05am. According to PW13, he came to know about the same since people were talking about it and it took him about 20 minutes to reach the railway line. He is not aware if Hans Raj used to ply a rickshaw and also not aware if Hans Raj was residing separately from Rajnish and has voluntarily St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 14 added that he almost found Hans Raj, Rajnish and his brother Rohit together. He has denied the suggestion that the accused were not known to him prior to the incident or that he was not present at the spot nor any exhibits were lifted in his presence. The witness has further denied the suggestion that he in connivance with police officials signed the documents later while sitting in the Police Station or that no photographs were taken in his presence nor any inspection of the crime team took place. Witness has denied the suggestion that his brother Sushil and Chotu never told him about the accused Hans Raj and Rajnish coming to his house on 16.05.2010 or looking for his brother Rohit and mentioned this fact on the advise of the police. He has denied the suggestion that Hans Raj and Rajnish had not come to his house in his presence and he was not aware of their visit.
14. PW14 Sh. Sudama is a resident of the same area who has deposed that he is property dealer by profession and on the intervening night of 1617.05.2010 at about 1:302AM (midnight) he was coming back from natural call at railway line, near Jhuggi Kaushalpuri, Lal Bagh. According to the witness, when he entered in the street he found Hans Raj and Rajnish going with "gathri" by holding the same and on seeing him they started moving fast. The witness has further deposed that thereafter he came back to his house thinking that they were going to throw some wastage or they were taking their luggage. He has testified that in the morning he came to know that a dead body was lying in a gathri. He has explained that since he is pardhan of the jhuggi Kaushalpuri, Lal Bagh therefore he knew Rajnish and Hans Raj who residents St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 15 of the said area and states that he knew their houses also but is not aware the name of the deceased. He has also deposed that he did not see the color of gathri therefore he cannot identify the cloth of gathri. He has correctly identified the accused Rajnish and Hans Raj as the same persons who were seen by him while taking the gathri.
15. With the permission of this Court leading questions were put by Ld. Addl. PP for the state, during which the witness has deposed that he had not given the names of the deceased in his statement mark X1. The portion A to A of the statement mark X1 was read over and explain to the witness to which he denied having made so before the investigating officer. He has denied the suggestion that he came to know that the body which was lying near in the street of the said jhuggies was of one Rohit or that he had given the name of the deceased in his statement mark X1 also. He has further denied the suggestion that he has not given the name of the deceased as he learnt thereafter or that he knew deceased also as he had seen him once or twice at railway station.
16. In his cross examination by Ld. Defence counsels the witness has deposed that he was residing in the area of Lal Bagh jhuggi for the last 20 years and he is having his own jhuggi which is now in the form of house. He has produced his election identity card to show his residential proof and has admitted that there is a difference regarding house Number in the election Identity card and the address given in the Court. The witness has admitted that the address N9C/423, mentioned on the election identity card and has voluntarily explained that there is a printing error in the election identity card. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 16 Witness has further deposed that he is the pardhan of Lal Bagh, Kaushalpuri, Bari Bagh and chowki No. 4. According to him the entire area as aforesaid is spread out within two kilometers and he was nominated as Pardhan by the MLA of the area because he was his worker. He has stated that the MLA of the area is linked to Congress party and has admitted that people having affiliations to other political parties are also residing in the area of which he is a Pardhan. The witness has further deposed that he has no political rival and has voluntarily added that they worked in their respective areas. He has also testified that he is not known to all the persons of the area of which he is a Pardhan by name and knew the accused Hans Raj and Rajnish by name being residents of the same area but has no personal family relations with them. Witness has further deposed that the areas of Kaushalpuri and Lal Bagh are adjoining to each other. He has denied the suggestion that there is no proper lighting arrangement in the jhuggi Johnpuri area and has voluntarily explained that there are big masts outside on the crossing and also between the cluster in the galies. He has also admitted that there are no street lights in all the galies. According to him when he first noticed the accused they had just passed by his side. According to him, the gali in which they had crossed each other was hardly 2 ½3 feet wide. Witness has further deposed that both the accused persons were wearing pant shirt at the time when they were carrying the gathri. He has also testified that the accused reside at Kaushalpuri Jhuggi cluster whereas he is residing at Lal Bagh Jhuggi cluster and their houses are approximately 200 meters away from each other. The witness has also testified that it was around 9:3010AM when St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 17 he was informed that a dead body had been found but he is unable to tell the name of the lady who had informed him of the same. According to witness Sudama, he had gone to the spot after hearing what was being said by persons present outside his jhuggi but by that time the dead body had been removed by the police. He has further deposed that when he reached the spot at 9:30 AM some police officers were standing at the chowk and were making inquiries from public persons if anybody had seen anything on which he went to them and told them that Rajnish and Hans Raj were carrying a gathri at night and the police had recorded his statement at the spot itself i.e. after 9:30 AM but he did not sign any document at that time. According to him, he is not a frequent visitor to Adarsh Nagar police station and it is only in case of some dispute that they go to the police station. He has denied the suggestion that he is well known at Police Station Adarsh Nagar and has stated that he had never gone to the Police Station in connection with the present case. The witness has also stated that police had come to his house on 14th of August to ask about the color of the gathri and has voluntarily stated that he told them that he could not notice the color of the gathri. He has admitted that in their locality there are two or three sets of public convenience and has explained that the said toilets used to close at about 11 PM. The witness has further deposed that he usually go for toilet at about 10PM everyday. He has admitted that as per his daily routine he used public toilet but has denied the suggestion that he has deposed falsely at the instance of the Investigating Officer only to work out the present case. He has denied the suggestion that he had tried to implicate the accused Rajnish and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 18 Hans Raj in Congress Party but they were not willing due to which reason he was having a hostile attitude towards Hans Raj and Rajnish. He has also denied the suggestion that he had never seen the accused Hans Raj and Rajnish with a gathri in the intervening night of 16/17.05.2010 due to which reason he was unable to tell the colour of the gathri.
17. PW16 Chhotey Yadav is also the brother of the deceased who has deposed that he along with his mother and three other brothers were residing at Kaushal Puri, Lal Bagh, Azadpur whereas his another brother namely Rohit was residing separately in Kaushalpuri, Lal Bagh Azad Pur, Delhi. According to him, the deceased Rohit was his elder brother and he himself is the youngest whereas his sister namely Guddi is married who is residing at her matrimonial house in village. He has testified that his brother Rohit used to take liquor with Rajnish and Hans Raj at the house of Rajnish who were his friends due to which reason he also knew the accused. He has deposed that on 16.05.2010 Rajnish and Hans Raj came to their hour at about 9.009.30PM to call his brother Rohit but at that time Rohit was not present at the house on which he told them that Rohit might be sitting somewhere at railway station, on which both Rajnish and Hans Raj left his house. He has also deposed that after about 30 minutes he and his brother Sushil Yadav went out for a walk and when they reached near railway bridge (bridge for crossing the railway line for the pedestrian) they found Rajnish and Hans Raj talking with Rohit on one side. The witness has further deposed that after sometime Rajnish, Hans Raj and his brother Rohit left towards Kaushal Puri and he and his brother Sushil Yadav also came back to St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 19 their house. According to PW16 on the next morning i.e. on 17.05.2010 at about 6.00AM he went to Azadpur Mandi for his work where he used to work at fruit shop and came back at about 10.00 or 10.45AM to his house, when his mother informed him that the dead body of Rohit wrapped in a shawl was found near the house of Rajnish. He has also deposed that his brother was not having any enmity with any person and he used to consume liquor with Rajnish. According to him, both Rajnish and Hans Raj had come to call his brother on 16.05.2010 and thereafter he had seen them with his brother Rohit together near the bridge talking each other due to which reason he had given the names of Rajnish and Hans Raj in his statement to the police. He has proved the arrest memo of accused Rajnish and Hans Raj which are Ex.PW16/A & Ex.PW16/B; their personal search memos which are Ex.PW16/C & Ex.PW16/D and their disclosure statements which are Ex.PW16/E & Ex.PW16/F. He has correctly identified both the accused Rajnish and Hans Raj in the Court.
18. In his cross examination by the Ld. Defence Counsel the witness has deposed that he sells the fruit at the shop of Bihari Babu but he is not aware the whereabouts of the said Bihari Babu. According to the witness, he is illiterate due to which reason he cannot give the complete address of the shop i.e. shop number or block. He has testified that Bihari Babu used to come late at the shop and he (witness) used to open the shop and when Bihari Babu come to the shop, they both sit together in the shop. According to PW16, he used to go to said shop at about 6.00AM and sometime at about 7.00AM and used to come back to his house at about 5.00PM and sometime at about 6.00PM but has St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 20 voluntarily added that on 17.05.2010 he had come to his house to take food at about 10.0010.45AM as he used to go early. Witness has further deposed that he left the shop of Bihari Babu at about 11.0011.30AM and thereafter he reached his jhuggi within ten minutes when his brother Pintoo and his mother were only present at their jhuggi at that time. The witness has also deposed that he stayed in his jhuggi hardly for about five to six minutes when his mother informed him about lying the dead body on which he immediately went to the spot. Witness has further deposed that his other brother Sushil is a rickshaw puller who had gone to his work and he is not aware as to when Sushil came back to jhuggi from his work. He has testified that he had seen Sushil in the police station on 17.05.2010 but he does not remember the time when he seen him in the police station and states that he saw Sushil in the Police Station in noon hours. He has admitted that his deceased brother was habitual of committing petty offences like theft etc. and has stated that no case was registered or pending against his deceased brother Rohit. According to the witness, his deceased brother used to come to the jhuggi occasionally. He has testified that his brother Rohit was not having any separate residence and his brother Sushil was not having mobile phone at that time. The witness has further deposed that his brother Sushil used to leave the house at about 8.00AM and return by 8.00PM and sometimes later and is not aware the time when Sushil came back from his work on 16.05.2010. Witness has further deposed that his brother Pintoo is a beldar (labour) by profession and used to take goods from shop and has stated Pintoo came to the house at about 7.008.00PM on St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 21 16.05.2010 from his work. According to him most of the people of the area knew the fact that his brother Rohit used to remain outside the house for the maximum time and used to come occasionally to their residence. The witness has further deposed that he knew that Rajnish and Hans Raj were residents of separate jhuggi but he was not having any visiting terms with Rajnesh and Hans Raj even prior to this incident. Witness has further deposed that so far as his memory is concern the accused Rajnish had come to their jhuggi about one month prior to this incident. He has also deposed that when Rajnish and Hans Raj came to call his brother Rohit on 16.05.2010 he was present in the jhuggi but his mother was in the toilet and both the accused asked about his brother from him. The witness has further deposed that the railway bridge made for pedestrian is hardly at a distance of about 2025 paces from their jhuggi and he had seen the accused persons along with his brother Rohit near Ticket Ghar which is at a distance of about 2025 paces from the bridge. According to him, there was no light at the railway station at that time and he did not see the colour of clothes worn by his brother Rohit on 16.05.2010 and he did not intervene between the accused persons and his brother Rohit while they were talking. Chhotey Yadav has further deposed that on 17.05.2010 he came back to his jhuggi from the police station in the evening hours and his statement was recorded in the police station and in his presence no other person was examined by the Investigating Officer in the police station. The witness has further deposed that both the accused persons were arrested at ISBT, Anand Vihar in the morning hours but he does not remember the date of their arrest. According St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 22 to him, the secret informer gave the information regarding presence of accused persons at ISBT Anand Vihar, Delhi therefore they went there. He has also deposed that when the accused persons were arrested police officials were with him along with the secret informer which secret informer was belonging to Uttar Pradesh. He has further testified that accused persons were firstly apprehended and thereafter they were interrogated by the police at ISBT Anand Vihar which interrogation took about 1520 minutes. According to the witness, no writing work was done at ISBT Anand Vihar and both the accused were brought to the police station and but he does not remember whether his thumb impression was taken on any of the documents by the police or not. Witness has admitted that both the accused are belonging to different villages of District Sitapur UP and that their village is different from that of the accused persons. According to the witness, he does not know any Sudama in his locality and has denied the suggestion that he was not present in the house on 16.05.2010 in the evening hours or that both the accused namely Rajnish and Hans Raj has not come to his jhuggi on 16.05.2010 to call his brother Rohit. He has also denied the suggestion that he had not seen the accused persons with his brother Rohit near the bridge while talking each other or that he is not a witness of last seen in the present case or that he had been cited as a witness wrongly in the capacity of last seen witness. He has further testified that the accused persons were not arrested in his presence or that they did not give any disclosure statement regarding their involvement in the present case.
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 23 Medical/ forensic witnesses:
19. PW7 Dr. Kul Bhushan Goel has deposed that on 18.05.2010 he was working as CMO BJRM Hospital and on that day he conducted the postmortem on the dead body of Rohit S/o Gajraj aged about 18 years, male sent by Inspector Brij Pal vide postmortem report Ex.PW7/A. According to him cause of death in this case was asphyxia consequent upon ligature strangulation and all injuries were antimortem in nature. He has proved that injury no.1 was consistent with pressure of manual grip over mouth probably to ward off cries and injury no.2 was ligature mark and was caused by some soft ligature material. According to him, the injuries no.3 & 4 were caused by blunt force impact and ligature pressure over neck was sufficient to cause death in ordinary course of nature and time since death was about 35 hours from the postmortem. The witness has further deposed that the clothes and blood sample of the deceased were preserved, sealed and handed over to the police.
He has also deposed that a request Ex.PW7/B was made by the Investigating officer Inspector Brij Pal Singh regarding opinion in respect of ligature used for strangulation. The witness has testified that one sealed package duly sealed with the seal of BPS was produced before him and on opening the packet, it was found to contain one black salwar. He has proved that the injury no. 2 i.e. ligature mark mentioned in the postmortem report Ex.PW7/A was possible by this salwar or similar such type of some other cloth piece which opinion is Ex.PW7/C. According to him, the Salwar was sealed with the seal of KG St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 24 and handed over Const. Rahul along with the sample seal. He has correctly identified the case property i.e. salwar as the same which was examined by him which is salwar is Ex.P1.
20. In his cross examination by Ld. Defence counsel the witness has deposed that the aforesaid exhibit containing Salwar was produced by Const. Rahul in the hospital on 25.06.10 and he had given his opinion to this effect on 30.06.10. According to him, on gross examination, no blood stains were seen on the Salwar. He has admitted that there was no mark of manual grip on the neck and has deposed that there were only ligature mark around the neck and the blood tinged discharged from the nose was as a result of rupture of small blood vessels after death.
21. PW10 Poonam Sharma Senior Scientific Officer (Biology), FSL Rohini has deposed that on 18.06.2010 she received seven sealed parcels which were duly sealed and matched with the sample seals which were "BPS" and "KG BJRM HOSPITAL MORTUARY" which seals were intact. According to her, the parcels were examined biologically and serologically. She has deposed that on biological examination blood was detected on exhibits "A" (cotton wool swab), "B" (blood stained cemented material), "D" (cloth piece), "F" (blood stained gauze piece), "G2" (Tshirt) and "G3" (underwear) and on serological examination exhibit A and D gave positive result for 'A' group, exhibit B showed 'inconclusive result' and Exhibit F, G2 and G3 gave 'no reaction'. She has proved the detailed biological and serological report in this regard which St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 25 are Ex.PW10/A and Ex.PW10/B respectively.
22. In her cross examination by the Ld. Defence counsel the witness has admitted that blood could not be detected on Ex. C, G1 and H. She has further deposed that except blood group 'A' on the exhibits A and D no other blood group was found.
Police/ officials witnesses:
23. PW1 SI Matadin Meena has in his examination by way of affidavit Ex.PW 1/1 deposed that on 17.5.2010 while posted as Incharge Crime Team he along with Photographer Ct. Parvinder reached the spot i.e. gali near Jhuggi No. B1, Kaushal Puri, Lal Bagh, Azazpur and conducted inspection of dead body as well as of the spot. He has further proved that after completion of inspection he prepared a report which is Ex.PW1/A which he handed over to the Investigating Officer. The witness has also proved that on 21.5.2010 on the request of Inspector Brij Pal Singh he along with Photographer Ct. Subhash reached Jhuggi No. N22/B330, Kaushal Puri, Lal Bagh, Azadpur and after inspection of the room situated at first floor he prepared his inspection report which he handed over to the Investigating Officer.
24. In his cross examination by Ld. Defence Counsel the witness has deposed that on 17.05.2010, the information regarding the offence was received by him from the Police Control Room at 6.30 AM and they reached at the place of occurrence where ASI Kuldeep and Inspector Birj Pal with staff was already present there. According to him, when he saw the dead body, it was St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 26 lying on a Chaddar and he also visited the place of occurrence on 21.05.2010 when photographs were taken and bed sheet containing blood stains was seized by the Investigating Officer in his presence. He has further deposed that there was no blood stains on the chaddar upon which the dead body was lying on 17.05.2010.
25. PW 2 SI Manohar Lal has in his examination in chief by way of affidavit Ex.PW2/1 proved that on 4.6.2010 on the request of Inspector Brij Pal visited the spot i.e. the gali near jhuggi B1 Kaushalpuri and Jhuggi No. N22/B330, Kaushal Puri, Lal Bagh and inspected the place after which he prepared the scaled site plan which is Ex.PW2/A which he handed over to the Investigating Officer.
26. In his cross examination by Ld. Defence counsel the witness has deposed that he visited the place of occurrence and at N22/B330. Kaushal Puri, Lal Bagh with the Investigating officer and they remained there for about one hour. According to him they had taken rough notes about the size and the draft was prepared by him at his office and there were one or two public persons from the locality with them. He has further deposed that he was called by the Investigating officer at Police Station from where they had left for the aforesaid places. He has denied the suggestion that he never visited the places of offence and the site plan was prepared by him at the police station on the instructions of Investigating Officer of the case.
27. PW3 Ct. Parvinder Singh has in his examination in chief by way of affidavit Ex.PW3/1 has proved having taking the photographs of the dead body St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 27 which are Ex.PW3/A1 to Ex.PW3/A10 and negatives of the photographs which are collectively Ex.PW3/B. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
28. PW4 HC Raghubir Singh has in his examination in chief by way of affidavit Ex.PW4/1 has proved having recorded the FIR of the present case copy of which is Ex.PW4/A which he recorded on the basis of rukka which is Ex.PW4/B sent by ASI Kuldeep Singh on 17.5.2010 at 8:55 AM through PSI Govind. He has also proved that after lodging the FIR, original rukka and copy of FIR was given to PSI Govind for handing over the same to the Investigating Officer and Special report i.e. computerized copy of FIR were given to Ct. Mukund for supplying the same to senior officers and Ld. MM. The said witness has also not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
29. PW5 Ct. Mukund has in his examination by way of affidavit Ex.PW5/1 has proved that on 17.5.2010 while posted as Constable at Police Station Adarsh Nagar on the directions of HC Raghuvir Singh he went to deliver the computerized copies of FIR No. 136/10 in the office of senior officers and Ld. MM on government Motorcycle No. DL1SS1264. The said witness has also not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
30. PW6 HC Laxmi Narain is the MHCM who in his examination in chief by way of affidavit Ex.PW6/1 has proved the various entries in register St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 28 no. 19 vide entries no. 3618, 3619 and 3623 copy of which is collectively Ex.PW6/A (running into 9 pages); entry in register no. 21 vide entry no. 67/21/10 copy of which is Ex.PW6/B and the copy of receipt issued by FSL Rohini which is Ex.PW6/C. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
31. PW8 Ct. Subhash has deposed that on 21.05.2010 he along with In charge Crime Team SI M.D. Meena and other staff reached at N22/B 330, Kaushal Puri, Lal Bagh where on the instructions of Incharge Mobile Crime Team he took nine photographs of the spot of incident. The witness has deposed that the negative roll had been sent to Photo section, Police Station Kamla Market for developing the same, but the photograph could not be developed and as per report of photo section, the photographs had been destroyed and they sent the negative back to the police station. According to him, a DD No. 7 dated 11.06.2010 was made to this effect in the office of Mobile Crime team NW district which is Ex.PW8/A.
32. In his crossexamination the witness has denied the suggestion that he did not go to the spot of incident nor took any photographs on that day. He has admitted that he has not brought the damaged negative and has voluntarily added that he can produce the same if required. According to the witness, Insp. Brij Pal Singh and his police team were also present at the place of incident apart from SI M. D. Meena and himself.
33. PW9 Ct. Naveen has deposed that on 17.05.2010 while was posted at Police Station Adarsh Nagar he was performing emergency duty with ASI St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 29 Kuldeep Singh. According to him, at about 5:38 AM, SI Kuldeep received an information that a dead body was lying at Kaushalpuri on which he along with ASI Kuldeep Singh and PSI Govind reached near jhuggi B1, Kaushalpuri, Lal Bagh, Azadpur where they found a gathri of grey color shawl. The witness has testified that Insp. Brij Pal reached the spot and opened the gathri and found a dead body of about 1820 years old boy. According to PW9, there were some blood stains in the nose of the dead body and there were strangulation mark on the neck of the body and one pair of chappal was also found in the gathri. He has deposed that the photographer took the photograph and the Incharge crime team inspected the spot. The witness has further deposed that one Pintoo Yadav the brother of the deceased came there and identified the dead body of his brother Rohit. He has proved that the Investigating Officer prepared a rukka and sent the same to the police station through PSI Govind and prepared the inquest papers. According to him, the dead body was got preserved for 72 hours and he took the dead body from the spot at about 9AM and took the same to mortuary BJRM hospital. The witness has also deposed that he handed over the receipt of handing over the dead body to the Investigating Officer. He has proved that no tampering was done with the dead body during the period it remained in his possession. He has correctly identified the case property i.e. one pair of chappal taken out from the gathri which is Ex.P2 and one grey colored shawl in which the body was found wrapped and tied, which is Ex.P3.
34. In his crossexamination the witness has deposed that they reached the spot after about 1520 minutes of receiving the information about the dead St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 30 body. According to the witness, he did not check whether the shawl in which the dead body was found tied, was having any blood stains. He is unable to tell the time when Pintoo came to that place where gathri was found and states that he came before 9AM before sending the rukka. He has admitted that the place where the gathri was detected is a thickly populated area and has stated that some public persons also gathered there. He is not aware if the Investigating Officer had requested those public persons to be a witness in this case. He has denied the suggestion that Pintoo Yadav had not come to the spot in his presence. According to him, his statement was recorded in the police station after arrival from the mortuary but he does not not remember the time.
35. PW15 Ct. Zakir Hussain has deposed that on 18.05.2010 he was posted at Police Station Adarsh Nagar and on that day he along with Inspector Brij Pal Singh left the police station at about 10.30AM and reached at Mortuary Babu Jagjeevan Ram Memorial hospital. According to him, brothers of deceased namely Pintoo Yadav and Sushil Yadav met them in the hospital and identified the dead body of their brother. He has further deposed that Inspector Brij Pal Singh prepared the inquest documents and handed over the documents to the doctor and thereafter the postmortem on the body of deceased Rohit was conducted after which the dead body was handed over to Pintoo Yadav and Sushil Yadav vide receipt Ex.PW12/B. According to PW15 the doctor concern handed over to him two parcels containing clothes of the deceased and exhibits along with sample seal duly sealed with the seal of Babu Jagjeevan Ram Memorial hospital which he further handed over to Inspector Brij Pal Singh St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 31 who seized the same vide seizure memo Ex.PW15/A.
36. In his cross examination by Ld. Defence counsel the witness has deposed that the brothers of the deceased namely Pintoo Yadav and Sushil Yadav met him in the hospital at about 10.45PM on 17.05.2010.
37. PW17 Lady Ct. Minthesh has deposed that on 21.05.2010 she was posted at Police Station Adarsh Nagar and on that day at about 2.30PM Inspector Brij Pal Singh and other police party brought two accused persons namely Rajnish and Hans Raj. She has further deposed that she along with Inspector Brij Pal Singh, Ct. Zakir, HC Preetam, Ct. Rahul, Ct. Devender, Ct. Mukund and both the accused persons left the police station and reached at Lal Bagh and when they reached in the gali at about 2.40PM, both the accused persons Rajnish and Hans Raj pointed out towards jhuggi No. N22/B, 330, Kaushal Puri, Lal Bagh and disclosed that they had committed the murder of Rohit on the first floor in a room on a bed. She has proved that the Investigating Officer Inspector Brij Pal Singh prepared the memo of pointing out vide Ex.PW17/A. The witness has further deposed that one Shobha, wife of Rajnish was interrogated and after being satisfied she was arrested in this case vide memo Ex.PW17/B and was personally searched vide memo Ex.PW17/C. According to her, the articles i.e. bangles, two earpins, nose pin etc., were kept in a plastic container and sealed with the seal of BPS and taken into possession vide memo Ex.PW17/C. He has further deposed that the accused Shobha was interrogated and her disclosure statement was recorded St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 32 vide Ex.PW17/D. According to her, the crime team came to the spot and inspected the spot and photographer took the photographs. She has testified that the Incharge Crime Team SI MD Meena had prepared the inspection report and handed over the same to the investigating officer. Witness has further deposed that Ct. Subhash and SI MD Meena were examined by the Investigating Officer and their statements were recorded U/s 161 Cr. P. C. at about 5.15PM. She has testified that Inspector Brijpal Singh prepared the site plan and thereafter the accused Shobha produced the washed bed sheet stated to have been lying (bichi hui) on the bed at the time of incident which bed sheet was kept into a polythene bag and converted the same into parcel and sealed with the seal of BPS after which the parcel was seized vide memo Ex.PW17/E. PW17 has also deposed that thereafter the accused Shobha led the police party near the railway line and got recovered one salwar of black colour from a garbage (Koore ka dher) stated to have been used for strangulating Rohit. According to her, the said salwar was kept in a polythene bag by the Investigating officer and converted the same into parcel which parcel was sealed and seized vide memo Ex.PW17/F. She has further deposed that thereafter the accused Rajnish and Hans Raj led the police party at gali no. B1 Kaushal Puri, Lal Bagh and pointed out the place where they both had thrown the gathri containing dead body of Rohit. According to her, the Investigating Officer prepared the memo of pointing out to this effect vide Ex.PW17/G. She has also testified that thereafter all the accused persons and the police party reached at GTK road at about 7.00PM where she, accused Shobha and Ct. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 33 Mukund remained standing on the road whereas the remaining police official took the accused Rajnish and Hans Raj inside Parmeshwari Lala Bagh. She has testified that after coming back the Investigating Officer Inspector Brij Pal Singh informed them that accused Rajnish and Hans Raj got recovered the articles including one purse, one pocket diary, one hand chain (bracelet), some visiting cards belonging to the deceased Rohit from inside the park. The witness has also deposed that thereafter they all along with accused persons came back to the police station. She has correctly identified all the accused namely Rajnish, Hans Raj and Shobha in the court and has also correctly identified the case property i.e. one bed sheet as the same as taken into possession in her presence which is Ex.P7 and one black coloured salwar as the same as got recovered by accused Shobha which is Ex.P1.
38. In her cross examination by Ld. Defence counsel the witness has deposed that they all left the police station at about 2:30 PM in a gypsy and one of the police official drove the gypsy when they left the police station for Lal Bagh. According to her, they parked the said vehicle outside the gali and entered the gali on foot and the said house/jhuggi No. N22/B, 330 is double storied. She has deposed that she did not notice as to who was the occupant on the ground floor of the said house. According to the witness, the writing work was done while sitting inside the house outside the room and accused Shobha met them in the room on the first floor. She has also deposed that it took about 30 minutes in interrogating the accused Shobha and preparing the documents. She has testified that no public persons from nearby houses had gathered when St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 34 they entered the house and during their stay there, however some public persons were moving in the gali. The witness has further deposed that in her presence Investigating Officer did not ask those public persons to be a witness in this case and the Investigating Officer did the writing work himself. According to her, Crime Team came to the spot at about 4 PM which comprising of two police officials namely HC Subhash and SI Matadin. Witness has further deposed that Crime team also took about one hour at the spot and in her presence Investigating officer did not record the statement of the crime team officials. According to her Crime team also left the spot before they left the spot and they came back to the police station at about 8 PM. She has deposed that her statement was recorded by the Investigating Officer in the police station at about 10:30 PM and the statement of other members of police party were also recorded by the Investigating officer in the police station simultaneously. According to her, accused Shobha handed over the bed sheet to the Investigating Officer which was of yellow lining after interrogation and the plastic bag in which Investigating Officer converted the bed sheet into parcel was procured at the spot but she is not aware as to form where it was procured. She has testified that she does not remember as to who brought the said bag but has stated that the seizure memo was prepared and other writing work were done by investigating Officer. The witness has further deposed that the bed sheet was not examined throughly and was wrapped in the same condition in which it was given by accused Shobha and her signature was taken on the documents on the spot itself. She has also deposed that when they had gone to St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 35 railway line the accused Shobha and other two accused Hans Raj and Rajnish were also present with them and the garbage (kure ka dher) was not covered with boundary wall and was open. Witness has also deposed that the said salwar was found lying on the garbage and it was visible at that time having some dust thereon. Witness has further deposed that the said salwar was taken out by accused Shobha without any hard work and one or two passers bye were also moving near kuraghar but those persons were not asked by the Investigating Officer to join the proceedings. She has also deposed that it was of black color plain salwar and the polythene bag in which the said salwar was kept was lying in their vehicle. According to her, the seal after use was handed over by the Investigating Officer to one of the police official but she does not remember name of that police official. PW17 has further deposed that the above said kuredan contain huge quantity of garbage as almost all the local residents used to through garbage at the above said kuredan and from the kuredan they reached at GT Karnal Road. She has testified that the Investigating Officer left her, Ct. Mukand and Shobha on the GT Karnal Road and Investigating Officer along with accused Rajnish and Hans Raj and other police official left for the Parmeshwari Bagh which was just other side of the GT Karnal road. According to her, they could not see the place where the Investigating Officer took accused Rajnish and Hans Raj from the place where they were standing and they kept on standing for about 20 minutes in waiting of the Investigating Officer. She has admitted that the recovery of articles including one purse, one pocket dairy, one hand chain (bracelet), some visiting St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 36 cards from inside the park was not effected in her presence. According to PW17, she was not aware whether any writing work was done by the Investigating Officer at GT Karnal road and has stated that they all came back to the police station at about 8PM. She has denied the suggestion that neither she nor the Investigating Officer had visited the spot or that all the documents were prepared at the police station. PW17 has further denied the suggestion that no bed sheet was given or handed over by accused Shobha to the police party or that accused persons did not make any disclosure statement to the police. She has also denied the suggestion that no recovery was affected from any of the accused persons.
39. PW18 PSI Govind, has deposed that on 17.05.2010 he was posted at Police Station Adarsh Nagar as Probationary Sub Inspector and was on emergency duty in the police station. According to him, at about 5.38AM an information was received in the police station that one dead body was lying near jhuggi No. B1, Kaushal Puri, Lal Bagh which information was marked to ASI Kuldeep Singh after which ASI Kuldeep Singh and Ct. Naveen Kumar were sent to the spot whereas he along with Inspector Brij Pal Singh also went there. According to the witness, PCR Van Commander 47 and its Incharge HC Umrao were already present there where they found a dead body wrapped in grey coloured chadar (shawl). He has further deposed that on inspection of the body, it was found wearing green coloured T Shirt and black pant and one pair of chappal was also found in the gathri. Witness has also testified that blood was found oozing from mouth and there were mark of strangulation on the neck St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 37 and there were also injury mark on the face of the dead body. Witness has further deposed that the blood was found lying at three places and crime team came to the spot and inspected the spot. According to him, the photographer took the photographs of the dead body and at the same time the brother of the deceased namely Pintoo Yadav came there who identified the dead body as belonging to his brother Rohit. He has proved that on the basis of DD No.8A Inspector Brij Pal Singh prepared the rukka and handed over the same to him which he took to the police station and got the case registered and came back to the spot at about 9.45AM along with copy of FIR and original rukka which he handed over to the Investigating Officer. He has further deposed that Investigating Officer Inspector Brij Pal Singh prepared the site plan and when he brought the copy of FIR to the spot, the dead body was already sent to the Hospital. He has also proved that the Investigating Officer lifted the blood sample with the help of gauze piece and kept the same in a plastic container and sealed the same with the seal of BPS and the sealed parcel was taken into possession vide seizure memo Ex.PW13/A. According to PW18, Investigating Officer also lifted the blood stained earth and kept the same in a plastic container and sealed the same with the seal of BPS which parcel was taken into possession vide memo Ex.PW13/B. He has proved that the investigating officer also lifted the earth control and kept the same in a plastic container and sealed the same with the seal of BPS which was taken into possession vide seizure memo Ex.PW13/C; one chadar of grey colour having blood stains was also converted into parcel and sealed the same with the seal of BPS and was St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 38 taken into possession vide memo Ex.PW13/D; one pair of chappal belonging to deceased Rohit was also converted into parcel and sealed the same with the seal of BPS and was taken into possession vide memo Ex.PW13/E and the seal after use was handed over to him. He has further deposed that at about 11.30 AM two brothers of the deceased namely Chhotey Yadav and Sushil Yadav came there and had identified the dead body as belonging to their brother Rohit and their statements were recorded in which they had informed the Investigating Officer that their brother Rohit was called by the the accused persons namely Rajnish and Hans Raj and on 17.05.2010 his dead body was found lying near the house of Rajnish and also raised suspicion that their brother was murdered by Rajnish and Hans Raj. He has testified that the Investigating officer Inspector Brij Pal Singh recorded the statements of Chhotey Yadav, Sushil Yadav and Pintoo under Section 161 Code of Criminal Procedure. Witness has further deposed that during the search of both the accused persons, they reached at the jhuggi of accused Rajnish at N22/B330 Kaushal Puri, Lal Bagh and one lady namely Shobha who was wife of accused Rajnish met them and informed that both the accused persons had gone to the village one week ago. He has also deposed that the Investigating Officer made inquiries in the nearby jhuggies when one Sudama R/o Jhuggi No. N25/B423, Lal Bagh, Azadpur, Delhi met them and informed that he had seen both the accused persons Rajnish and Hans Raj at about 1.30 or 2.00AM in the street in the intervening night of 16/17.05.2010 along with a gathri. He has testified that the Investigating Officer recorded the statement of Sudama under Section 161 Code of Criminal St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 39 Procedure and efforts were made to trace the accused Rajnish and Hans Raj but they could not be traced till then. According to him, at about 4.00PM, they came back to the police station and got deposited the case property in the Malkhana.
40. The witness has correctly identified the accused Shobha in the court and has also identified the case property i.e. one pair of chappal which is Ex.P2; one grey colour shawl as the same in which the body was found wrapped which is Ex.P3; blood sample which is Ex.P4; blood stained earth which is Ex.P5; earth control which is Ex.P6; one dirty pant of black colour, one T Shirt of green colour and one underwear as the same worn by the deceased which are collectively Ex.P8.
41. In his cross examination by Ld. Defence counsel the witness has deposed that at about 5:40 AM he was informed by the Duty Officer regarding the incident on which he along with Insp. Brij Pal left the police station just within five minutes of getting information but he cannot tell the exact time. According to him they reached at the spot within 1520 minutes and the gathri was opened by the Investigating Officer in his presence and the chappals were found inside the gathri. The witness has also deposed that at the time when he saw the body blood was not oozing out but he could see the blood stains. He has deposed that he noticed the three places where the blood were found lying prior to opening of the gathri and Crime Team reached the spot in his presence at about 77:30 AM. He has further deposed that the rukka was handed over to him at about 8:45 AM and the brother of the deceased namely Pintoo Yadav, St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 40 came at the spot prior to 8:45 AM i.e. the time of the handing the rukka to him. According to him, in his presence the Investigating Officer made some inquiries from Pintoo Yadav but he is not aware whether statement of Pintoo Yadav was recorded by the Investigating Officer or not. The witness has further deposed that in his presence the Investigating Officer was drawing the site plan of his own without any help from any public person. PW18 has also stated that the plastic container was already available in the Investigating officer kit. According to him, the statements of Sushil Yadav and Chhotey Yadav were recorded in his presence at about 1111:30 AM and the Investigating Officer had taken about 45 minutes in recoding the statements of Pintoo Yadav, Sushil Yadav and Chhotey Yadav. According to PW18, the number of the residence of accused persons i.e. N22/B330, Kaushal Puri, Lal Bagh was told by either of the three brothers of deceased namely Pinto Yadav, Sushil Yadav and Chote Yadav in their statements which jhuggi was at the distance of about 100 paces from the place where the gathri was found. He is not aware whether Shobha told them about the name of village where both the accused persons had gone. According to him the Investigating officer made inquiries from the local persons from the neighbourhood and Investigating officer took about 11.25 hours while making inquiries from the public persons. Witness has further deposed that he cannot tell the exact time when Sudama met with the Investigating officer but it was during the above said period of inquiries from the public persons and the statement of Sudama was recorded at the distance of about 1015 paces from the jhuggi No. N22/B330, Kaushalpuri, Lal Bagh. He St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 41 has further deposed that the Investigating Officer took ten to fifteen minutes in recording the statement of Sudama but he is unable to tell whether the statement of Sudama was recorded in front of his house or else where. He has denied the suggestion that brothers of the deceased namely Pintoo Yadav, Sushil Yadav and Chote Yadav did not reach the spot or that the Investigating Officer never recorded statements of above said persons. He has further denied the suggestion that Sudama did not give any statement to the investigating officer or that neither Investigating Officer nor any police official had visited the house of Shobha on that day.
42. PW19 Ct. Rahul Tyagi has deposed that on 19.05.2010 while posted at Police Station Adarsh Nagar he had joined the investigation of this case with the Investigating Officer. According to him, he along with HC Pritam Chand, Ct. Jakir Hussain, Ct. Devender, Ct. Mukand and Inspector Brij Pal along with Chhotey Yadav, the brother of deceased left for search of accused persons and reached at Village Dharkuan and Prem Pur, Distt. Sitapur, UP but both the accused namely Rajnish and Hans Raj were not available there. Thereafter on 20.05.2010 at about 7.30PM they came to Police Station Psawa, Distt. Sitapur where one secret informer came and informed the Investigating Officer that the accused persons had left for Delhi and would leave for Mumbai from Anand Vihar Bus Stand in the early morning on the next day i.e. on 21.05.2010. The witness has further deposed that on receipt of this information they all left for Delhi alongwith the secret informer and Chhotey Yadav and on 21.05.2010 they reached at Bus Stand Anand Vihar at about 8.30 AM where Nakabandi was St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 42 held at "InGate". According to him, at about 10.30AM they found two persons coming out from "InGate" on foot whom Chhotey Yadav had identified as Rajnish and Hans Raj after which both the accused Rajnish and Hans Raj were apprehended. He has proved that both the accused were interrogated and their disclosure statements were recorded, the disclosure statement of accused Rajnish is Ex.PW16/E and the disclosure statement of accused Hans Raj is Ex.PW16/F. He has deposed that the accused Rajnish was arrested vide memo Ex.PW16/A and the accused Hans Raj was arrested vide memo Ex.PW16/B after which both the accused were personally searched vide memos Ex.PW16/C and Ex.PW16/D. The witness has further deposed that at about 1.30PM they left ISBT Anand Vihar and reached at Police Station Adarsh Nagar at about 2.30PM from where they took lady Constable Minthesh and they all along with both the accused Rajnish and Hans Raj reached Jhuggi No. N22/B330, Kaushal Puri, Lal Bagh, Azad Pur from where the coaccused Shobha was arrested in this case vide memo Ex.PW17/B. He has proved that Shobha was personally searched by Lady Ct. Minthesh vide memo Ex.PW17/C and the information regarding arrest of all the three accused persons was given to one Raja Raj, the father of Shobha. The witness has further proved that the articles recovered from personal search of accused Shobha was converted into parcel and sealed the same with the seal of BPS and taken into possession vide memo Ex.PW17/C and accused Shobha was interrogated thoroughly to which she gave her disclosure statement which is Ex.PW17/D. According to him, the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 43 crime team was also called at the spot and the photographer of the crime team took the photographs after which the Incharge Crime Team inspected the spot and submitted his report vide Ex.PW1/A. He has proved that the Investigating Officer also inspected the spot and prepared site plan. According to him, the accused Shobha in pursuance to her disclosure statement had produced one bed sheet of red, yellow and orange colour before the Investigating Officer stated to have been used on the bed before committing the murder of Rohit on which Inspector Brij Pal procured a polythene bag and the said bed sheet was converted into parcel and sealed the same with the seal of BPS and taken into possession vide memo Ex.PW17/E. He has further testified that at about 6.00PM the accused Shobha along with accused Rajnish and Hans Raj took them to railway line near garbage (Koore ka dher) from which the accused Shobha got recovered one Salwar stated to have been used while strangulating Rohit which Salwar was also converted into parcel and sealed the same with the same seal and taken into possession vide seizure memo Ex.PW17/F. He has stated that at about 6.30PM both the accused Rajnish and Hans Raj pointed out at Jhuggi B1 Kaushal Puri as the same place where they had thrown the dead body of Rohit pursuant to which Inspector Brij Pal prepared the memo of pointing out which is Ex.PW17/A. According to him, the accused Rajnish and Hans Raj took the police party at GTK Road, Parmeshwari Park, Opposite HP Petrol Pump and pointed out towards South West corner of the park from where both the accused persons got recovered the articles of the deceased Rohit i.e. one brown raxine purse of woodland, one pocket diary and visiting cards of St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 44 Maa Laxmi Jewellers and one chain of silver colour (bracelet). He has testified that the accused persons disclosed that the aforesaid articles were belonging to deceased Rohit and after committing his murder they had thrown the aforesaid articles there. He has proved that the Investigating Officer Inspector Brij Pal converted the aforesaid articles in a parcel and sealed the same with the same seal and took the same into possession vide memo Ex.PW19/A and the seal after use was handed over to HC Pritam Chand. The witness has further deposed that on 18.06.2010 he again join the investigation with the Investigating Officer and on that day he took eight exhibits duly sealed with the seal of BPS and got deposited the same to FSL vide RC No.67/21. According to him, he handed over the copy of the receipt to MHC(M) after getting the same deposited and no tampering was done while the aforesaid exhibits remained in his possession. He has proved that on 30.06.2010 he took the request letter from the Investigating Officer and went to BJRM Hospital, Jahangir Puri with a pulanda containing Salwar duly sealed with the seal of BPS seeking opinion of the doctor. According to him, Dr. Kulbhushan Gopal received the said parcel and opened the same and had given the opinion on the back of the request letter and sealed the same with the seal of KG, BJRM Mortuary. He has testified that he took the said parcel from the doctor containing opinion and handed over the same to the Investigating Officer and the parcel containing Salwar duly sealed with the seal of KG BJRM Mortuary was handed over to MHC(M) Laxmi Narayan. He has also stated that during this period no tampering was done with the parcel. The witness has correctly St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 45 identified all the three accused in the Court and has also identified the case property i.e. one bed sheet which is Ex.P7; one black coloured Salwar which is Ex.P1; one light brown colour purse of woodland containing one visiting card of Maa Laxmi Jewellers, one pocket diary and one bracelet as belonging to Rohit which are collectively Ex.P9.
43. In his crossexamination by the Ld. Defence Counsel the witness has deposed that on 19.05.2010 they left police station at about 11.00PM by a private vehicle i.e. Innova car but he is unable to tell from where it was hired nor can he tell its number. According to him, the driver of the vehicle was a private driver and he did not ask his name. He has testified that they had stopped in between for about 1015 minutes to have their meals but otherwise it was a nonstop journey. He has also deposed that they had first gone to Police Station Psawa, Distt. Sitapur and the local police was joined in the investigations but he is unable to tell their names. According to him, when they reached Police Station Psawa they did not meet any public person nor the Investigating Officer joined any local public person in the investigating team nor he saw any public person meeting the Investigating Officer. He has testified that when they reached village Dharkuan and village Prem Pur Investigating Officer had asked some public persons to join the police party but they refused. The witness has further deposed that when they reached Village Prem Pur they came to know from the locals that the accused Hans Raj and Rajnish were seen in the village in the evening. He has testified that it took about three to four hours to complete the proceedings at village Dharkuan and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 46 Prem Pur and they started back for Delhi on 20.05.2010 in the evening at about 7.30 PM. According to the witness, when the accused were apprehended the Investigating Officer had tried to join public persons but they refused. He is unable to tell the names of the public persons or their addresses nor could he tell if the Investigating Officer had given them any notice for their refusal to join the police party. He has denied the suggestion that he is unable to give the names and address of the public persons because no efforts were made by the investigating officer to join any public person at any point of time and because the accused were later on lifted and falsely implicated in the present case. The witness has further deposed that the Investigating Officer had recorded disclosure statement while sitting inside Innova Car and has admitted that the disclosure statement does not bear the signatures of any independent public witness. He has denied the suggestion that no disclosure statement was made by the accused or that Investigating Officer recorded the same of his own in connivance with Chhotey Yadav brother of the deceased. According to him, Raja Ram the father of accused was informed personally when the accused were arrested and the disclosure statement of Shobha was recorded at her house after her arrest at about 3.30PM. He has testified that accused Shobha got the recovery of the bed sheet effected after the crime team had inspected the spot and has voluntarily stated that she got the bed sheet recovered from the bed. He has further deposed that the Kooredaan from where the Salwar was got recovered by Shobha is not a regular Kooredaan built by the government but is a place near the railway line where the public persons just throw the Koora. He St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 47 has admitted that the garbage in large quantity was lying scattered at the place where the salwar was got recovered and has stated that Shobha herself got the salwar recovered from the Koora (garbage) and no assistance of a Safai Karmchari was taken. According to him, the Salwar was thrown in the Koora in a polythene bag and Shobha had got recovered the polythene bag containing the salwar. He has further deposed that the salwar was seized in the same polythene bag in which it was recovered and later on wrapped in a cloth piece which proceedings took about half an hour. He has denied the suggestion that no recovery was got effected by Shobha and all the documents were prepared while sitting in the police station after planting the recovery on the accused. He has stated that at the time of recovery of purse and articles contained in the same, Lady Constable Minthesh, Ct. Mukand were also present along with accused Shobha on the road whereas other persons of the police party were inside along with the accused Rajnish and Hans Raj. He has testified that the articles were recovered from bushes, in the park and were in one polythene. According to the witness, the place from where the articles were recovered was not visible from the place where accused Shobha was standing outside the park. He has admitted that no independent public person was joined in the proceeding which were carried out at Parmeshwari Park. He has testified that it took about 30 to 45 minutes to complete proceedings at Parmeshwari Park. The witness has also deposed that his statement was recorded at the police station at about 11.0011.30PM and the statements of other persons who were part of proceedings were also recorded at the police station prior to recording of his St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 48 statement. He has denied the suggestion that all the documents were prepared while sitting in the police station or that no such raid was conducted.
44. PW20 HC Pritam Chand has also joined the investigations along with the Investigating Officer Inspector Brij Pal Singh on 19.5.2010, 20.5.2010 and 21.5.2010. He has corroborated the testimony of PW19 Ct. Rahul Tyagi in toto in this regard and apart from the proceedings/ documents proved by Ct. Rahul Tyagi this witness has also proved the site plan of first floor of Jhuggi No. N22/B330 Kaushal Puri, Lal Bagh Azadpur which site plan is Ex.PW20/A. He has correctly identified all the accused persons and the case property. This witness has been crossexamined at length by the Ld. Defence Counsel but nothing much has come out of the same.
45. PW21 Insp. Brij Pal Singh is the Investigating Officer of the present case who has deposed that on 17.05.2010 he was posted at Police Station Adarsh Nagar and on that day information was received from PCR at about 5:38AM regarding lying of a dead body at Lal Bagh, Kaushalpuri, gali No.1 which information recorded vide DD No. 8A Ex.PW21/A which was marked to ASI Kuldeep Singh for investigations and at the same time the then Duty Officer informed him about the said DD. According to him, he along with PSI Govind reached Gali No.1, Kaushalpuri, Lal Bagh where ASI Kuldeep and Ct. Naveen and the PCR official were already present and they found one gathri of grey color of a chadar type shawl. The witness has further deposed that he checked the same and found to contain a dead body of a boy aged about 1617 years and one pair of chappal was also with the dead body in the said gathri. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 49 According to the witness the dead body was found wearing one Tshirt of green color and one pant of black color and the blood clots were found on the mouth and there was injury mark on the face of it. He has further deposed that there were mark of strangulation on the neck of the body and the cloth of gathri was found having blood clots. According to him, the ground where the gathri was found lying was also having dry blood at three places. He has proved that the crime team came at about 7:00 AM at the spot and the photographer Ct. Parvinder Singh took the photographs of the body which are Ex.PW3/A1 to Ex.PW3/A10. He has further deposed that the Crime Team Incharge SI Matadin inspected the spot and prepared his crime team report which is Ex.PW1/A. According to PW21, at about 8:15 AM one Pintoo Yadav the brother of deceased had come there and identified the dead body as that of his brother Rohit and at that time no other eye witness met them there. He has proved that on the basis of said DD he prepared the rukka which is Ex.PW21/B which he send to police station through PSI Govind for getting the case registered. The witness has also stated that he called the private photographer Inderpal who took 20 photographs which are Ex.PW21/C1 to Ex.PW21/C20. According to the witness, he sent the dead body to mortuary through Ct. Naveen with the request to get the body preserved which request is Ex.PW21/E and in the meantime PSI Govind brought the rukka and the copy of FIR at about 9:45 AM at the spot and handed over the same to him after which he prepared the site plan which is Ex.PW21/D. He has proved having lifted the blood stains St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 50 with the help of two pieces of cotton and kept the same in a plastic container which container was converted into parcel and sealed with the seal of BPS and was taken into possession vide memo Ex.PW13/A. According to him, he lifted blood stained earth from the spot and kept the same in a plastic container and sealed the same with the same seal and the sealed parcel was taken into possession vide memo Ex.PW13/B. He has further proved having lifted the earth control sample from the spot and kept the same in a plastic container and wrapped with the medical tape which parcel was sealed with the same seal and taken into possession vide memo Ex.PW13/C; having converted the chadar in which the dead body was found lying in the form of gathri, into parcel and sealed the same with the same seal and taken into possession vide memo Ex.PW13/D; having converted the pair of sandal/chappal into parcel and sealed the same with the same seal and taken into possession vide memo Ex.PW13/E. According to him, at about 11:15 AM other two brothers of the deceased Rohit namely Chhotey and Susheel also came to the spot and informed him that two friends of Rohit namely Rajnish and Hans Raj had come to the house of Rohit at about 9:3010 PM on the previous night but at that time Rohit was not available in the house. The witness has also deposed that the brothers of deceased further informed him that both the aforesaid Rajnish and Hans Raj were asking about Rohit to which Chhotey had told them that Rohit might be available at Railway Station, Azadpur and asked them to locate Rohit there. According to him, Chotey further informed that thereafter Rajnish and Hans Raj left the house for Azadpur station and after taking dinner he (Chhotey) along with his brother St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 51 Susheel had gone to the railway station Azadpur and when they were walking on the platform they saw Rajnish and Hans Raj with their brother Rohit while they all were standing and talking each other and after some time they left towards the house of Rajnish at Kaushalpuri. According to the Investigating Officer (PW21), both the persons namely Chhotey and Susheel raised suspicion against both Rajnish and Hans Raj that they had committed murder of their brother Rohit as they had last seen Rohit with them on which he recorded the statement of Chhotey and Susheel in which they had given the complete residential address of the accused of Uttar Pradesh as well as of Kaushalpuri. He has further deposed that thereafter he along with his staff reached at N22/B330, Kaushalpuri Lal Bagh for the search of accused Rajnish and Hans Raj but both the accused were not found available and one Shobha W/o Rajnish met them who informed him that both the accused had gone to attend marriage at Sitapur, Uttar Pradesh. According to PW21, he made local inquiries from the area and at about 2:00 PM one Sudama S/o Guru Charan R/o N25/B423, Lal Bagh met him and informed that on the previous night i.e. on the intervening night of 16/17.05.2010 at about 1:302AM(midnight) he had seen Rajnish and Hans Raj while carrying away a gathri in the gali where the said gathri was found lying on which he recorded the statement of Sudama. According to the witness, he deposited the case property with the MHC(M) after making local inquiries and recorded the statements of the aforesaid police officials under Section 161 Code of Criminal Procedure at the police station. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 52
46. The witness has further deposed that on the next day i.e. on 18.05.2010 he prepared inquest documents i.e. request for getting the postmortem conducted which is Ex.PW21/F, brief facts which are Ex.PW21/G, inquest form which is Ex.PW21/H prepared on 17.05.2010. He has proved having recorded the statement of Susheel Yadav and Pintoo Yadav which are Ex.PW12/A and Ex.PW13/F and thereafter got the postmortem of the deceased conducted vide postmortem report which is Ex.PW7/A. The witness has further deposed that after getting the postmortem conducted, he handed over the dead body to Pintoo Yadav vide receipt Ex.PW12/B. According to him, the doctor concerned handed over two sealed parcels containing clothes of the deceased and his blood sample and one sample seal duly sealed with the seal of KG BJRM hospital mortuary to Ct. Zakir Hussain who further handed over the same to him which he took into possession vide memo Ex.PW15/A. He has testified that on 19.05.2010 he along with HC Pritam, Ct. Devender, Ct. Mukund, Ct. Rahul Tyagi and Ct. Zakir Hussain along with witness Chhotey left for District Sitapur, UP for the search of accused persons. According to him, on 20.05.2010 they reached at Sitapur and got their entry registered at Police Station Pisawa, District Sitapur and the facts were narrated to the local police and they were taken with them and reached in the Dhar Kuan, the village of Rajnish and Prem Pur which is the village of Hans Raj. The witness has further deposed that both the villages fall within the jurisdiction of Police Station Pisawa and they raided the house of Rajnish firstly but Rajnish was not found available and on local inquiry he came to know that both the accused St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 53 Rajnish and Hans Raj were seen together in the village Prempur together till morning on which they went to village Prempur at the village of Hans Raj but both were not found available there also. He has testified that while they were leaving the village one person from the village informed him that both the accused persons were about to leave the village and were talking for going to Mumbai and left for Delhi just before sometime on which information they took the said informer and turned their vehicle towards Delhi. According to the witness, the informer also informed them that the buses from the Sitapur goes to ISBT Anand Vihar Delhi and both the accused persons could be apprehended if raided at ISBT Anand Vihar and hence they immediately left Sitapur and rushed towards Delhi. He has deposed that on 21.05.2010 at about 8 AM they reached at ISBT Anand Vihar and he deployed his staff at IN gate where people used to come and go on foot. The witness has further deposed that at about 10:30 AM two persons were duly identified by Chhotey Yadav as Rajnish and Hans Raj while they were coming out from inside the bus stand on which both the accused were overpowered and on interrogation they confessed their involvement in the present case. He has also testified that on being satisfied the accused Rajnish was arrested in this case vide memo Ex.PW16/A, his personal search was conducted vide memo Ex.PW16/C; accused Hans Raj was arrested vide memo Ex.PW16/B and personally searched vide memo Ex.PW10/D. According to him, both were thoroughly interrogated and the disclosure statement of Rajnish was recorded vide Ex.PW16/E and the disclosure statement of accused Hans Raj was recorded vide Ex.PW16/F. According to St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 54 the witness, medical examination of the accused persons were got done after which they left ISBT Anand Vihar at about 1:30 PM and reached the police station at about 2:30 PM and the articles recovered from personal search of accused persons were got deposited with the MHC(M). He has testified that he took L/Ct. Mintesh and the accused Rajnish led them to his house at Kaushalpuri, Lal Bagh where Shobha wife of Rajnish met them regarding whom the accused had disclosed was also involved in killing the deceased Rohit. According to the witness Shobha was interrogated and she admitted her guilt after which she was also arrested in this case vide memo Ex.PW17/B and her personal search was also conducted through L/Ct. Mintesh vide memo Ex.PW17/C after which her disclosure statement was recorded vide Ex.PW17/D. The witness has proved that at the same time i.e. about 4 PM he called the crime team again in the room where the murder has taken place and the crime team inspected the spot and took the photographs. According to him, the accused Shobha had produced one bed sheet which was stated to have blood stains and same was washed by her later on, before him on which he converted the said blood bed sheet into parcel and sealed the same with the same seal and took the same into possession vide memo Ex.PW17/E. He has further deposed that thereafter the accused Shobha led them at kura khata near railway line and got recovered one salwar of black color which was belonging to Shobha and regarding which all the three accused had disclosed that they had strangulated deceased Rohit with the said salwar. He has deposed that the said salwar was also converted into parcel and sealed the same with the same seal and was taken St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 55 into possession vide memo Ex.PW17/F. According to PW21, prior to this when accused Rajnish and Hans Raj took them to the house of Rajnish, both had pointed out the room in which the murder was committed by them on which he prepared the memo of pointing out vide Ex.PW17/A. He has further stated that thereafter accused Rajnish and Hans Raj led the police party at a place where a dead body was found in a gathri and they pointed out the same place where they left the gathri pursuant to which he prepared the memo of pointing out at the place where the dead body was left vide Ex.PW17/G. The witness has further deposed that at about 7 PM the accused Rajnish and Hans Raj led them along with the coaccused Shobha at Parmeshwari wala Bagh at GTK road and pointed out the place where they had thrown the personal belonging of deceased Rohit. According to the witness, both the accused Rajnish and Hans Raj got recovered one polythene bag containing one brown racksene purse having the mark 'Woodland', one pocket dairy having eleven pages, one visiting card of Mahalaxmi jeweler, one bracelet type chain of silver like object as belonging to deceased Rohit after which he converted the same into parcel and sealed the same with the same seal and took the parcel into possession vide memo Ex.PW19/A. He has deposed that thereafter they came back to the police station and got the case property deposited with the MHC(M).
47. The witness has further deposed that on 03.06.2010 Pintoo Yadav had identified the personal belongings of his brother Rohit in TIP proceedings vide Ex.PX1. According to him, on 04.06.2010 SI Manohar Lal draftsman inspected the spot and took the rough notes and measurements and had submitted his St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 56 scaled site plan which is Ex.PW2/A. He has testified that on 18.06.2010 he send the exhibits to FSL through Ct. Rahul Tyagi vide RC No. 67/21 and recorded the statement of Ct. Rahul Tyagi and Laxmi Narain the then MHC(M). Pw21 has also deposed that on 30.06.2010 he wrote a letter to Dr. Kulbhushan Goyal, CMO BJRM hospital seeking opinion in respect of ligature used for strangulation vide Ex.PW7/B pursuant to which Dr. Kulbhushan had given his opinion vide Ex.PW7/C wherein he has opined that injury No.2 i.e. ligature mark mentioned in the Postmortem report Ex.PW7/A was possible by the salwar or similar such type of some other cloth piece. He has proved having prepared the charge sheet against accused Rajnish, Hans Raj and Shobha after necessary investigations. According to him, the FSL result was received later on which is Ex.PW10/A and Ex.PW10/B. He has correctly identified all the three accused in court as well as the case property i.e. the black colored salwar got recovered by accused Shobha which is Ex.P1; one pair of chappal which is Ex.P2; one grey color shawl/chadar as the same in which body was found wrapped, which is Ex.P3; one plastic container containing blood sample which is Ex.P4; plastic container containing blood stained earth which is Ex.P5; plastic container containing earth control which is Ex.P6; one bed sheet which is Ex.P7; one dirty pant of black color, one TShirt of green color and one underwear belonging to the deceased which are collectively Ex.P8; and one brown color purse of Woodland containing one visiting card of Mahalaxmi jeweler, one pocket dairy, one bracelet belonging to deceased Rohit which are St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 57 collectively Ex.P9.
48. In his crossexamination the witness has deposed that he made a call to PCR caller but he did not join the investigations and neither disclosed his name and address. According to him, he did not make any inquiry as to the owner and address in respect of the above phone number but states that it was a mobile phone. He has testified that he came to know about the incident at about 5:45 AM and reached the spot at about 6 AM. The witness has stated that the injury mark on the face seem to be due to scuffle and the blood oozing out from the mouth was semi solid. He has further deposed that Pintoo Yadav reached the spot before sending the rukka and exhibits were lifted after registration of the case. According to PW21, some people collected at the spot and he tried to make inquiries from them and also requested them to join the proceedings but none agreed and left the spot without giving their names and addresses. He has stated that the spot where the gathri was found is a populated area having jhuggies of the cluster and there are houses on both sides of the spot in the gali. The witness has testified that he recorded one statement of Pintoo Yadav at the spot after registration of the FIR and the statements of Chhotey Yadav and Susheel Yadav were also recorded at the spot. According to PW21, the distance between the spot and the Azadpur Railway station might be 6070 meters and he did not notice that there was any public lighting pole near the spot. He has further deposed that the address of Rajnish and Hans Raj were disclosed by witnesses Chhotey Yadav, Susheel Yadav in their statements. He has stated that he remained at the spot where the dead body was found till about seven and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 58 a half hours. The witness has also deposed that witnesses Pintoo, Chhotey and Susheel Yadav were not accompanying him when he reached house of the accused persons and the distance between the spot where the gathri was found and the house of the accused was found to be hardly 1520 meters. According to the witness Sudama had met him near the house of accused persons at a distance of about seven to eight 8 meters while he was making local inquiries and his statement was recorded only once and he was not associated in further investigations. He has further deposed that on 19.05.2010 he along with raiding party members left the police station for Sitapur at about 1011 PM and Chhotey Yadav had joined the investigations on his request. He has testified that they had gone to Sitapur by Innova Car which was arranged by him from his personal contacts but he does not remember its number. The Investigating Officer has further deposed that they reached Police Station Pishawa at 3 PM on 20.05.2010 but he did not record statement of local police officials of Police Station Pishawa as no important work of investigations took place there. He has admitted that there are two gates at ISBT Anand Vihar i.e. IN gate and OUT gate but has voluntarily stated that but public generally used IN gate to come out from ISBT Anand Vihar. According to him, the accused were apprehended at about 10:30 AM after a wait for two hours and the disclosure statements of accused persons were recorded at IN gate ISBT where the trap was laid. He has testified that the disclosure of accused Rajnish is in his own hand whereas the disclosure of accused Hans Raj is in the handwriting of HC Pritam which was noted down on his dictation. The witness has further admitted that HC Pritam St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 59 has also signed as a witness on the disclosure statement. He has stated that disclosure statement of accused Shobha was also written by HC Pritam on his dictation. According to PW21, the kura khata from where the accused Shobha got the salwar recovered is an open place without any boundary wall and the salwar was partially visible from a distance. He has further deposed that no public person met them near the kura khata and the salwar was not found wrapped in the kura khata. The witness has also deposed that the black coloured polythene containing the personal belonging of deceased was got recovered by the accused persons from bushes of south west corner of the Parmeshwari wala Bagh, GTK road. He has admitted that he did not make the site plan from the salwar and personal belongings of deceased were recovered. He has denied the suggestion that Chhotey Yadav and Susheel Yadav did not disclose anything about the accused persons or that Sudama is a stock and planted witness. PW21 has also denied the suggestion that accused persons had never given their disclosure statements and their signatures were obtained on blank papers which were later on converted into various documents and disclosure statements. He has further denied the suggestion that accused persons have been falsely implicated in the present case in order to work out the present case or that the entire documentations were prepared while sitting in the police station.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
49. After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 60 wherein all the incriminating evidence was put to them which they have denied.
The accused Rajnish has stated that he is innocent and has been falsely implicated in the present case. According to him, he was lifted from his village and has nothing to do with the alleged incident. He has stated that he has been implicated in this case by the police only to solve this case. He has denied having made any disclosure statement to the police. The accused Hans Raj has similarly stated that he is innocent and has been falsely implicated in the present case. According to him, he was lifted from his village and has nothing to do with the alleged incident. He has stated that he has been implicated in this case by the police only to solve this case. He has denied having made any disclosure statement to the police. Further, the accused Shobha has stated that she is innocent and has been falsely implicated in the present case. According to her, she did not got recover anything nor she made any disclosure statement to the police. She has stated that she was lifted from her residence village and falsely implicated. She has further stated that she has nothing to do with the alleged incident.
50. All the accused have not examined any witness in their defence despite having been granted an opportunity in this regard. FINDINGS:
51. I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 61 record. First I propose to deal with all the allegations/ averments made by the public witness individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness PUBLIC WITNESSES: 1. Inder Pal (PW11) This witness has deposed on the following aspects:
1. That he is running his shop as photographer at Lal Bagh and on 17.03.2010 he was called by Investigating Officer to took the photographs at B1, Kaushal Puri, Lal Bagh.
2. That on the request of Investigating Officer he took ten photographs from his digital camera where a dead body was lying and after developing the same he handed over the photographs to the Investigating Officer which photographs are Ex.PW3/A1 to Ex.PW3/A10.
3. That the photograph which was took by him after lifting the dead body is Ex.PW/11X which is part of the said photographs and during developing the positives were not tampered in any manner.
2. Sushil Yadav He is the brother of the deceased who has deposed on the (PW12) following lines:
1. That on 16.05.2010 he returned to his house after plying the rickshaw and when he reached at the house his mother and his brother met him there.
2. That accused Rajnish and Hans Raj came to the house at about 9:00 pm and inquired about his brother Rohit on which his brother namely Chhotey replied that Rohit had gone towards station.
3. That after taking meals he along with his brother Chhotey went towards station for a walk and after reaching there near the phatak they noticed that both the accused namely Hans Raj and Rajnish and his brother Rohit (since deceased) were talking with each other, thereafter both the accused along with Rohit went towards Kaushal Puri, Lal Bagh and he along with Chhotey returned to his house.
4. That on the next day they came to know that the dead body St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 62 of his brother Rohit was lying at the station on which he reached from vegetable market where he was working at the spot where dead body of Rohit was lying and his brother Chhotey was already present but the dead body of Rohit was not there, however police officials were present there.
5. That he along with his brother went to the mortuary of Babu Jagjeevan Ram Memorial Hospital where he identified the dead body of his brother Rohit vide his statement Ex.PW12/A.
6. That after the postmortem they received the dead body vide receipt Ex.PW12/B.
7. That he was sure that both the accused had murdered his brother Rohit.
8. That he was interrogated by police and his statement was recorded and his brother was not having any enmity and both the accused are liable for the murder of his brother.
He has correctly identified the accused Rajnish and Hans Raj in the Court.
3. Pintoo Yadav He is also the brother of the deceased who has deposed as (PW13) under:
1. That they were five brothers namely Kamlesh, Sushil, Rohit and Chotu.
2. That Kamlesh and Sushil used to ply rickshaw whereas he along with Chotu used to work in Azadpur market.
3. That his brother deceased Rohit was jobless and was into mischievous jobs and whatever he (Rohit) used to earn he used to spend on bad habits of womanizing and drinking due to which he (Rohit) was scolded by his mother.
4. That on 16.05.2010 after he reached home he had his dinner and went off to sleep and on17.05.2010 morning he went to the Mandi and at about 8:008:30 am he came to know that the dead body was lying near the railway line near the house of Rajnish on which they went to the spot when he found that the deceased was his brother.
5. That police was already present at the spot and he identified the dead body of his brother which was wrapped in a shawl and he noticed some dark spots on the neck of St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 63 the dead body of his brother.
6. That the police prepared some report in his presence and sent it to Police Station and after some time the police constable returned to the spot after which the body was sent to the mortuary of BJRM Hospital.
7. That he remained at the spot where the police prepared the site plan of the place where the dead body was lying tied in a shawl and the photographs of the site were also taken in his presence and the spot was duly inspected by some police officials.
8. That while he was present at the spot with the dead body of his brother Rohit, his other brothers Sushil and Chotu who had also come to the spot told him that on 16.05.2010 i.e. one night prior Rajnish and Hans Raj had come to their house and were looking for Rohit.
9. That he knew Rajnish and Hans Raj since they were associated with Rohit and were also involved in many small crimes along with his brother Rohit and were known to him prior to this incident because they belong to a village which is adjoining his native village.
10. That police lifted the blood lying at the spot with the help of a cotton, blood stained earth with the help of a chaini, earth control, chaddar and sandal of his brother which articles were converted into a pullanda and various documents were prepared where he had signed.
11. He has proved the seizure memo of the blood sample which is Ex.PW13/A; seizure memo of blood stains which is Ex.PW13/B; the seizure memo of earth control which is Ex.PW13/C; seizure memo of blood stained chadar which is Ex.PW13/D and seizure memo of sandal which is Ex.PW13/E which documents according to the witness were prepared and he had signed them at the spot itself.
12. That on 18.05.2010 he along with his brother Sushil and other relatives went to BJRM Hospital mortuary where he identified the dead body of his deceased brother vide identification memo Ex.PW13/F.
13. That he had also signed the memo regarding the receipt of the dead body which is Ex.PW12/B. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 64 He has correctly identified the accused Rajnish and Hans Raj in the Court and also the case property i.e. chappal/sandal of his deceased brother which is Ex.P2; a shawl/chadar of his deceased brother which is Ex.P3; blood lifted from the spot which is Ex.P4; blood stained earth lifted from the spot which is Ex.P5; earth control lifted from the spot which is Ex.P6.
4. Sudama (PW14) He is a resident of the same area and has deposed on the following aspects:
1. That he is a property dealer by profession and on the intervening night of 16/17.05.2010 at about 1:302AM (midnight) he was coming back from natural call at railway line, near Jhuggi Kaushalpuri, Lal Bagh.
2. That when he entered in the street he found Hans Raj and Rajnish going with "gathri" by holding the same and on seeing him they started moving fast.
3. That thereafter he came back to his house thinking that they were going to throw some wastage or they were taking their luggage.
4. That in the morning he came to know that a dead body was lying in a gathri and since he is pardhan of the jhuggi Kaushalpuri, Lal Bagh therefore he knew Rajnish and Hans Raj who residents of the said area and he their houses also but he is not aware the name of the deceased.
5. That he did not see the color of gathri therefore he cannot identify the cloth of gathri.
This witness has correctly identified the accused Rajnish and Hans Raj as the same persons who were seen by him while taking the gathri. The witness is unable to disclose the name of the deceased.
5. Chhotey Yadav He is also the brother of the deceased and has deposed as (PW16) under:
1. That he along with his mother and three other brothers were residing at Kaushal Puri, Lal Bagh, Azadpur whereas his another brother namely Rohit was residing separately in Kaushalpuri, Lal Bagh Azad Pur, Delhi.
2. That the deceased Rohit was his elder brother and he himself is the youngest whereas his sister namely Guddi is married who is residing at her matrimonial house in the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 65 village.
3. That his brother Rohit used to sit and take liquor with Rajnish and Hans Raj who were his friends due to which reason he also knew the accused.
4. That his brother Rohit used to take liquor at the residence of Rajnish and on 16.05.2010 Rajnish and Hans Raj came to their hour at about 9.009.30PM to call his brother Rohit but at that time Rohit was not present at the house on which he told them that Rohit might be sitting somewhere at the railway station, on which both Rajnish and Hans Raj left his house.
5. That after about 30 minutes he and his brother Sushil Yadav came out for walking and when they reached near railway bridge (bridge for crossing the railway line for the pedestrian) they found Rajnish and Hans Raj talking with Rohit on one side.
6. That after sometime Rajnish, Hans Raj and his brother Rohit left towards Kaushal Puri and he and his brother Sushil Yadav also came back to their house.
7. That on the next morning i.e. on 17.05.2010 at about
6.00AM he went to Azadpur Mandi for his work where he used to work at fruit shop and came back at about 10.00 or 10.45AM to his house, when his mother informed him that the dead body of Rohit wrapped in a shawl was found near the house of Rajnish.
8. That his brother was not having any enmity with any person and he used to consume liquor with Rajnish.
9. That both Rajnish and Hans Raj had come to call his brother on 16.05.2010 and thereafter he had seen them with his brother Rohit together near the bridge talking each other due to which reason he had given the names of Rajnish and Hans Raj in his statement to the police.
He has proved the arrest memo of the accused Rajnish and Hans Raj which are Ex.PW16/A & Ex.PW16/B; their personal search memos which are Ex.PW16/C & Ex.PW16/D and their disclosure statements which are Ex.PW16/E & Ex.PW16/F. He has correctly identified both the accused Rajnish and Hans Raj in the Court.
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 66 MEDICAL EVIDENCE
6. Dr. Kulbhushan This witness has proved having conducted the postmortem on Goel (PW7) the dead body of the deceased Rohit on 18.05.2010 vide postmortem report Ex.PW7/A. According to him cause of death in this case was asphyxia consequent upon ligature strangulation and all injuries were antimortem in nature. He has also proved that injury no.1 was consistent with pressure of manual grip over mouth probably to ward off cries and injury no.2 was ligature mark and was caused by some soft ligature material; the injuries no.3 & 4 were caused by blunt force impact and ligature pressure over neck was sufficient to cause death in ordinary course of nature and time since death was about 35 hours.
He has also proved pursuant to the request Ex.PW7/B made by the Investigating officer Inspector Brij Pal Singh regarding opinion in respect of ligature used for strangulation, he examined the black colour salwar and opined that injury no. 2 i.e. ligature mark mentioned in the postmortem report Ex.PW7/A was possible by this salwar or similar such type of some other clothe piece which opinion is Ex.PW7/C. He has correctly identified the case property i.e. salwar as the same which was examined by him which salwar is Ex.P1.
FORENSIC EVIDENCE:
7. Poonam Sharma This witness has proved having examined the exhibits of this (PW10) Senior case vide reports Ex.PW10/A and Ex.PW10/B according to Scientific Officer which on biological examination blood was detected on (Biology), FSL exhibits "A" (Cotton wool swab), "B" (blood stained cemented Rohini material), "D" (cloth piece), "F" (blood stained gauze cloth piece), "G2" (Tshirt) and "G3" (underwear) and on serological examination exhibit A and D gave positive result for 'A' group, exhibit B showed 'inconclusive result' and Exhibit F, G2 and G3 gave 'no reaction'.
POLICE/ OFFICIAL WITNESSES (Proving investigations)
8. SI Matadin Meena He is a formal witness being the Incharge Crime Team and has (PW1) proved having inspected the scene of crime on 17.5.2010 and having prepared a report which is Ex.PW1/A which he handed St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 67 over to the Investigating Officer. The witness has also proved that on 21.5.2010 on the request of Inspector Brij Pal Singh he along with Photographer Ct. Subhash reached Jhuggi No. N22/B330, Kaushal Puri, Lal Bagh, Azadpur and after inspection of the room situated at first floor he prepared his inspection report which he handed over to the Investigating Officer.
9. SI Manohar Lal He is a formal witness who has proved having prepared the (PW2) scaled site plan which is Ex.PW2/A which he handed over to the Investigating Officer.
10. Ct. Parvinder He is also a formal witness who has proved having taken the Singh (PW3) photographs of the dead body which are Ex.PW3/A1 to Ex.PW3/A10 and negatives of the photographs which are collectively Ex.PW3/B.
11. HC Raghubir He is the Duty Officer who has proved registered the FIR of the Singh (PW4) present case which is Ex.PW4/A which he recorded on the basis of rukka which is Ex.PW4/B sent by ASI Kuldeep Singh on 17.5.2010 at 8:55 AM through PSI Govind. He has also proved that after lodging the FIR, original rukka and copy of FIR was given to PSI Govind for handing over the same to the Investigating Officer and Special report i.e. computerized copy of FIR were given to Ct. Mukund for supplying the same to senior officers and Ld. MM.
12. Ct. Mukund (PW5) He is a formal witness who has proved having delivered the computerized copies of FIR No. 136/10 in the office of senior officers and Ld. MM on government Motorcycle No. DL1SS1264.
13. HC Laxmi Narain He is the MHCM who has proved the various entries in register (PW6) no. 19 vide entries no. 3618, 3619 and 3623 copy of which is collectively Ex.PW6/A (running into 9 pages); entry in register no. 21 vide entry no. 67/21/10 copy of which is Ex.PW6/B and the copy of receipt issued by FSL Rohini which is Ex.PW6/C.
14. Ct. Subhash He is also a formal witness who has proved that 21.05.2010 he (PW8) along with Incharge Crime Team SI M.D. Meena and other staff reached at N22/B 330, Kaushal Puri, Lal Bagh where on the instructions of Incharge Mobile Crime Team he took nine photographs of the spot of incident but the said photographs St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 68 could not be developed and as per report of photo section, the photographs had been destroyed and they sent the negative back to the police station pursuant to which DD No. 7 dated 11.06.2010 Ex.PW8/A was made to this effect in the office of Mobile Crime Team NW District.
15. Ct. Naveen (PW9) This witness has deposed on the following aspects:
1. That on 17.05.2010 while was posted at Police Station Adarsh Nagar he was performing emergency duty with ASI Kuldeep Singh and at about 5:38 AM SI Kuldeep received an information that a dead body was lying at Kaushalpuri on which he along with ASI Kuldeep Singh and PSI Govind reached near jhuggi B1, Kaushalpuri, Lal Bagh, Azadpur where they found a gathri of grey color shawl.
2. That Insp. Brij Pal reached the spot and opened the gathri and found a dead body of about 1820 years old boy.
3. That there were some blood stains in the nose of the dead body and there were strangulation mark on the neck of the body and one pair of chappal was also found in the gathri.
4. That the photographer took the photograph and the Incharge crime team inspected the spot.
5. That one Pintoo Yadav the brother of the deceased came there and identified the dead body of his brother Rohit.
6. That the Investigating Officer prepared a rukka and sent the same to the police station through PSI Govind and prepared the inquest papers.
7. That the dead body was got preserved for 72 hours and he took the dead body from the spot at about 9AM and took the same to mortuary BJRM hospital.
8. That he handed over the receipt of handing over the dead body to the Investigating Officer.
9. That no tampering was done with the dead body during the period it remained in his possession.
He has correctly identified the case property i.e. one pair of chappal taken out from the gathri which is Ex.P2 and one grey colored shawl in which the body was found wrapped and tied, which is Ex.P3.
16. Ct. Zakir Hussain This witness has deposed on the following lines:
(PW15) 1. That on 18.05.2010 he was posted at Police Station Adarsh St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 69 Nagar and on that day he along with Inspector Brij Pal Singh left the police station at about 10.30AM and reached at Mortuary Babu Jagjeevan Ram Memorial hospital.
2. That brothers of deceased namely Pintoo Yadav and Sushil Yadav met them in the hospital and identified the dead body of their brother.
3. That Inspector Brij Pal Singh prepared the inquest documents and handed over the documents to the doctor and thereafter the postmortem on the body of deceased Rohit was conducted after which the dead body was handed over to Pintoo Yadav and Sushil Yadav vide receipt Ex.PW12/B.
4. That the doctor concern handed over to him two parcels containing clothes of the deceased and exhibits along with sample seal duly sealed with the seal of Babu Jagjeevan Ram Memorial hospital which he further handed over to Inspector Brij Pal Singh who seized the same vide seizure memo Ex.PW15/A.
17. Lady Ct. Mintesh This witness has joined the investigations along with Inspector (PW17) R.S. Malik and proved the following documents:
Ex.PW17/A Pointing out memo of accused Rajnish, Hans Raj and Shobha Ex.PW17/B Arrest memo of accused Shobha Ex.PW17/C Personal search memo of accused Shobha Ex.PW17/D Disclosure statement of accused Shobha Ex.PW17/E Seizure memo of bed sheet Ex.PW17/F Seizure memo of black colour salwar Ex.PW17/G Disclosure statement of accused Rohtash Ex.PW17/H Pointing out memo of accused Rajnish and Hans Raj Ex.PW17/I Seizure memo of Nokia mobile and clothes of accused Rohtash She has correctly identified all the accused namely Rajnish, Hans Raj and Shobha in the court and has also correctly identified the case property i.e. one bed sheet as the same as St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 70 taken into possession in her presence which is Ex.P7 and one black coloured salwar as the same as got recovered by accused Shobha which is Ex.P1.
18. PSI Govind This witness had accompanied the Investigating Officer (PW18) Inspector Brij Pal Singh to the spot where the dead body was found lying. He has proved the proceedings conducted by Inspector Brij Pal Singh and had also proved having taken the rukka to the police station for registration of the FIR.
19. Ct. Rahul Tyagi He has joined the investigations along with Investigating (PW19) Officer Inspector Brij Pal Singh on 19.5.2010, 20.5.2010 and 21.5.2010 and has proved the various proceedings conducted by the Investigating Officer. He has also proved having taken the exhibits of this case and having deposited the same with the FSL, Rohini.
20. HC Pritam Chand This witness has also joined the investigations along with the (PW20) Investigating Officer Inspector Brij Pal Singh on 19.5.2010, 20.5.2010 and 21.5.2010. He has corroborated the testimony of PW19 Ct. Rahul Tyagi in toto in this regard and apart from the proceedings/ documents proved by Ct. Rahul Tyagi this witness has also proved the site plan of first floor of Jhuggi No. N22/B330 Kaushal Puri, Lal Bagh Azadpur which site plan is Ex.PW20/A.
21. Inspector Brij Pal He is the Investigating Officer who has proved having Singh (PW21) conducted the various investigations. Apart from the documents proved by earlier witnesses, he has proved the following documents:
Ex.PW21/A DD No. 8A
Ex.PW21/B Rukka
Ex.PW21/C1 Photographs
to
Ex.PW21/C20
Ex.PW21/D Site plan of the spot where the dead body was
discovered
Ex.PW21/E Request for preserving the dead body
Ex.PW21/F Request for getting the postmortem conducted
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 71
Ex.PW21/G Brief facts
Ex.PW21/H Inquest form
52. Coming now to the microscopic evaluation of the evidence against the accused persons.
Ocular Evidence:
53. Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Unfortunately, in the present case there is no direct eye witness to the incident and the entire case of the prosecution is based upon last seen and circumstantial evidence.
Medical Evidence/ Cause of Death:
54. The case of the prosecution is that the deceased Rohit was strangulated. PW7 Dr. Kul Bhushan Goel has in his testimony proved that cause of death in the present case was asphyxia consequent upon ligature strangulation and all the injures were antimortem. He has further proved that the injury no.1 (bruises over both lips externally as well as orally) was consistent with pressure of manual grip over mouth probably to ward off cries; Injury No.2 was ligature mark (ligature pressure contused abraded mark running horizontally all around the neck and & below Apple of adam with St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 72 differed margins and linear lines in between the LM, width of LM is about 1.5 to 2 cm, LM is parchmentized); Injury No.3 (contused abrasion 3 x 0.75 cm over right molar region) and Injury No.4 (vertical grazing seen over back of left forearm and elbow in total area of 22 x 7 cm) were caused by blunt force impact. This witness has further proved that the ligature pressure over neck was sufficient to cause death in ordinary course of nature and time since death was about 35 hours. He has proved his postmortem report Ex.PW7/A according to which postmortem was conducted on 18.5.2010 at 12:00 noon and time since death was about 35 hours suggesting it was around 1:00 AM which corroborates the prosecution version that the deceased was murdered on the intervening night of 1617.5.2010 and more than one person was involved in the same since force has been used to shut his mouth to ward off his cries. Further, Dr. Kul Bhushan Goel (PW7) has proved that a black coloured salwar was produced before him and after examining the same he had opined that the ligature mark as described in the postmortem report Ex.PW7/A could be caused by the said salwar (Ex.P1) or some other kind of cloth piece, which opinion is Ex.PW7/B. In his crossexamination the witness has admitted that no blood stains were found on the salwar and there was no mark of manual grip on the neck and only ligature mark was present around the neck. Last Seen Evidence:
55. The case of the prosecution is that the brothers of the deceased namely Sushil Yadav (PW12) and Chhotey Yadav (PW16) had last seen their deceased St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 73 brother namely Rohit alive in the company of the accused Rajnish and Hans Raj on the night of 16.5.2010 and in the morning they came to know that the body of their brother was lying near the railway line.
56. The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
57. It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
58. Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 74 last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
59. A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 75 can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras,
218. ..."
60. Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
61. Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Rajnish and Hans Raj is trustworthy or not. If yes, the effect thereto.
62. It is evident from the record that according to Sushil Yadav (PW12) on 16.5.2010 when he returned home after plying rickshaw, his mother and brother Chhotey met him and accused Rajnish and Hans Raj came to the house at about 9:00 PM and inquired about his brother Rohit on which Chhotey St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 76 replied that Rohit had gone towards station. Thereafter, he along with Chhotey (PW16) went for a walk and when they reached near the phatak they noticed their brother Rohit talking to both the accused Rajnish, Hans Raj. Thereafter they i.s. Rajnish, Hans Raj and Rohit went towards Kaushalpuri whereas he himself and Chhotey returned to their house. On the next day they came to know that the dead body of Rohit was lying at the station. Chhotey Yadav (PW16) has corroborated the testimony of Sushil Yadav (PW12) to this extent. Coming first to the testimony of Sushil Yadav (PW12), the relevant portion of his testimony is as under:
"......... On 16.05.2010 I returned to my house after plying the rickshaw. When I reached at the house my mother and my brother met me there. Accused Rajnish and Hansraj came to the house at about 9:00 pm and enquired about my brother Rohit. My brother namely Chota replied that Rohit had gone towards station. After taking meals I along with my brother Chota went towards station for walk. After reaching there near the phatak we noticed that both the accused namely Hansraj and Rajnish both present in the court today and my brother Rohit (since deceased) were talking with each other. Thereafter both the accused along with Rohit went towards Kaushal Puri, Lal Bagh and I along with Chota returned to my house.
On next day, we came to know that the dead body of my brother Rohit was lying at the station. On this information I reached from vegetable market where I was working, to the spot where dead body of Rohit was lying . My brother Chota was already present there but dead body of Rohit was not there....."St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 77
63. Coming now to the testimony of Chhotey Yadav (PW16), the relevant portion of which is as under:
"....... I alongwith my mother and three other brothers were residing at Kaushal Puri, Lal Bagh, Azadpur whereas my another brother namely Rohit was residing separately in Kaushalpuri, Lal Bagh Azad Pur, Delhi. The deceased Rohit was my elder brother and I am the youngest. My sister namely Guddi is married who is residing at her matrimonial house in village. My brother Rohit used to sit and take liquor with Rajneesh and Hans Raj who were his friends. The accused Rajneesh and Hans Raj were also residing in Kaushal Puri and my brother Rohit was their friend therefore I know them. My brother Rohit used to take liquor at the residence of Rajneesh. On 16.05.2010 Rajneesh and Hans Raj came to our hour at about 9.009.30PM to call my brother Rohit. At that time my brother was not present at the house and I told them that my brother Rohit might have sitting somewhere at railway station. On this both Rajneesh and Hans Raj left my house. After some time, again said after about 30 minutes I and my brother Sushil Yadav came out for walking and when we reached near railway bridge (bridge for crossing the railway line for the pedestrian). We found Rajneesh and Hans Raj talking with my brother Rohit on one side. After sometime both Rajneesh, Hans Raj and my brother left towards Kaushal Puri. I and my brother Sushil Yadav also came back to our house. On the next morning i.e. on 17.05.2010 at about 6.00AM I was to Azadpur Mandi for my work where I used to work at fruit shop and came back at about 10.00 or 10.45AM to my house, my mother informed me that the dead body of my brother Rohit was found near the house of Rajneesh wrapped in a shawl. My brother was not having any enmity with any person and he used to consume liquor with Rajneesh. Both Rajneesh and Hans Raj had come to call my brother on 16.05.2010 and thereafter I seen them with my brother Rohit together near the bridge talking each other therefore I had St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 78 given the names of Rajneesh and Hans Raj in my statement to the police...."
64. I have gone through the testimonies of Sushil Yadav (PW12) and Chhotey Yadav (PW16). Firstly it is evident from the crossexamination of both these witnesses that Rohit (deceased) was a small time offender/ vagabond who had never been caught by the police. He used to commit theft for his earning and the amount he earned, he used to spent on womanizing and liquor. Further, according to these witnesses Rohit used to commit theft while in company of Rajnish and Hans Raj.
65. Secondly it is writ large from the testimonies of both the brothers of the deceased who are witnesses of the last seen, that not only the accused indulging into criminal activities for his livelihood but also he was an alcoholic and womanizer due to which reason he was often away from his house and was seen loitering around the railway station. It is evident from the testimonies of both these witnesses that the deceased used to loiter around the railway station and sometime even slept on the railway station. In this regard Sushil (PW12) in his crossexamination has specifically stated that all the friends and associates of Rohit knew that he could be found at railway station at any time and sometimes he even used to sleep at Azadpur railway station and sometimes with the accused Rajnish and Hans Raj as the deceased Rohit was their very good friend. Similarly Chhotey Yadav (PW16) in his crossexamination has also admitted that his deceased brother Rohit was habitual in committing petty offences like theft though no cases were pending against Rohit. He has St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 79 explained that the deceased very occasionally came to their Jhuggi and most of the people in the area knew this fact that Rohit used to remain outside the house for the maximum time and used to come to their house very occasionally.
66. Thirdly both the said witnesses i.e. Sushil Yadav (PW12) and Chhotey Yadav (PW16) have corroborated each other on the fact that on 16.5.2010 at about 10:00 PM after taking their meals they went towards station for a walk and when they reached near the phatak they saw their brother Rohit talking to accused Rajnish and Hans Raj and after some time they saw both the accused Rajnish and Hans Raj along with Rohit moving towards Kaushal Puri, Lal Bagh (where the jhuggi of Rajnish is situated) whereas they returned to their house.
67. Fourthly it is evident that the body of the deceased Rohit was discovered in the morning at about 5:38 AM when the call was received at Police Station after which police came to the spot. Sushil Yadav (PW12) came to know about the dead body of Rohit lying at the spot much later i.e. when the body of Rohit had already been taken to the hospital and he found his brother Chhotey already at the spot with the police officials. In so far as Chhotey Yadav (PW16) is concerned, he came to know about the dead body of his brother Rohit lying at Railway Station at about 11:40 AM. According to him, he had left his workplace at about 11:30 AM after which he reached his house within ten minutes and within five minutes his mother informed him about the death of Rohit on which he immediately went to the spot after which they informed the police of having last seen the deceased with the accused. It is St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 80 established that Chottey and Sushil had given the information to the police of having last seen their deceased brother alive with Rajnish and Hans Raj at the earliest possible opportunity and there being no delay the possibility of tutoring and false implication is ruled out. Even otherwise Rajnish and Hans Raj being very good friends of deceased and enjoying cordial relations with the family of the deceased, there is no question of false implication.
68. Fifthly the first person in the family of the deceased who had first come to know about the recovery of the dead body of Rohit was Pintoo Yadav (PW13) who had gone to Mandi where he used to work and at about 8:008:30 AM he came to know that the dead body was lying near the railway line near the house of Rajnish and when he went to the spot he found that the body was of his brother Rohit and all the proceedings took place in his presence. This witness Pintoo Yadav is not a witness of last seen since he was not at his house when both the accused had come to their Jhuggi looking for their brother and this explains why he did not tell the police of having seen the deceased Rohit in the company of accused Rajnish and Hans Raj the previous last night. Further, it is established that it was only later on when Chhotey and Sushil came to the spot where the body of Rohit was found in a gathri, that Chhotey and Sushil immediately informed the police at the spot itself that they had last seen their brother Rohit alive in the company of accused Rajnish and Hans Raj the previous night. Even otherwise, it stands established that the deceased and the accused were very thick, not only being good friends but also being partners in small crimes which they committed together. It is due to this reason they were St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 81 always seen together so much so that everybody in the area knew that the deceased Rohit could either be at the railway station or could be in the company of the accused Rajnish and Hans Raj. Hence, when the accused Rajnish and Hans Raj came to the house of the deceased Rohit, looking for him it was nothing unusual for the family of Rohit and further when Sushil Yadav and Chhotey Yadav the brothers of the deceased saw their brother Rohit in the company of the accused at the railway station talking to each other they again did not find anything unusual in the same.
69. Lastly it is vehemently argued by the Ld. Defence Counsel that the information regarding the deceased being last seen alive in the company of accused Rajnish and Hansraj was not given to the police at the first instance in the morning when the body was found and hence the same being an after thought on account of suspicion merely because the deceased used to remain in the company of the accused cannot be ruled out. I have considered the submissions made and I may observe that at the time when the body of deceased Rohit was found in the gathri the family of the deceased was not aware and Pintoo (PW13) who was going to his job, was the one who had first identified the dead body. Sushil Yadav (PW12) and Chhotey Yadav (PW16) were both present at their home when the accused Rajnish and Hans Raj had come looking for their brother Rohit and it was also nothing unusual because the accused Rajnish and Hans Raj were associated with Rohit in small crimes and roamed around together within the area throughout the day and it was only when Sushil Yadav and Chhotey Yadav informed the police that they had last St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 82 seen their brother Rohit in the company of accused Rajnish and Hans Raj on the previous night, that the police as well as Pintoo Yadav came to know of the said fact. Further, Sushil Yadav (PW12) and Chhotey Yadav (PW16) have specifically deposed that they left their house in the early morning hours. Sushil Yadav (PW12) has in his testimony explained that he used to leave his house at about 9:00 AM and normally comes back by 9:00 or 10:00 AM. He has further stated that when he came to know that the dead body of his brother Rohit was lying, he immediately went to the spot where his brother Chhotey was already present but the dead body of Rohit had already been removed from the spot by that time. His testimony finds due corroboration from the testimony of Pintoo Yadav (PW13) who has proved that as soon as Sushil and Chottey come to the spot, they told him that both the accused Rajnish and Hans Raj had come to their house on the previous night. Similarly, Chhotey Yadav (PW16) in his statement has explained that he leaves his house early in the morning i.e. at about 6:00 AM for his work and does not take breakfast and thereafter returns back home to have his breakfast at about 10:00 or 10:45 AM and on 17.5.2010 when he came back home, his mother informed him that the dead body of Rohit wrapped in a shawl was lying near the house of Rajnish on which he immediately went there. He has explained in his crossexamination that on 17.5.2010 he had left the shop of Bihari Babu at about 11:00 - 11:30 AM and within ten minutes he reached his Jhuggi and stayed there for about five to six minutes when his mother had informed him about the dead body of Rohit.
70. Both the witnesses Sushil Yadav (PW12) and Chottey Yadav (PW16) St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 83 have corroborated each other on the aspect that on the night of 16.5.2010 when they had gone for a walk and reached near railway bridge (meant for crossing the railway line for the pedestrians) they saw accused Rajnish and Hans Raj talking with Rohit and after some Rohit along with Rajnish and Hansraj went towards Kaushal Puri.
71. As per the postmortem report the time of death is around 1:00 AM in the intervening night of 1617.5.2010. Therefore, in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the deceased died on the intervening night of 1617.5.2010 around 1:00 AM after he was last seen in the company of accused Rajnish and Hans Raj at about 10:00 PM and both the accused Rajnish and Hans Raj have failed to explain when they parted company with the deceased Rohit and where. In view of the above, I hereby hold that the fact that the deceased Rohit was last seen alive in the company of the accused Rajnish and Hans Raj is highly determinative of the guilt of the accused Rajnish and Hans Raj. Sudama a neighbour of the accused Rajnish and Hansraj had seen them carrying a gathri at 1:302:00 AM Relevant fact:
72. The case of the prosecution is that an independent witness of the area namely Sudama (PW14) who is also the Pradhan of the Jhuggi cluster had seen the accused Rajnish and Hans Raj carrying a gathri on the intervening night of 1617.5.2010 at about 1:30 - 2:00 AM (midnight) when he was coming back after attending the call of nature at railway line, near Jhuggi Kaushal Puri. According to him, on seeing him both the accused started moving fast and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 84 thereafter he came back to his house thinking that they were going to throw some wastage or they were taking their luggage. He has however not supported the case of the prosecution on identity of the deceased and has denied that he had given the name of the deceased in his statement to the police. The relevant portion of the testimony of Sudama (PW14) is reproduced as under:
"...... I am property dealer by profession. On the intervening night of 16/17.05.2010 at about 1:302AM(midnight) I was coming back from natural call at railway line, near jhuggi Kaushalpuri, Lal Bagh. When I entered in the street I found Hans Raj and Rajneesh were going with "gathri" by holding the same by both of them. On seeing me they started moving fastly. Thereafter I came back to my house thinking that they were going to throw some wastage or they were taking their luggage. In the morning I came to know that a dead body was lying in a gathri. I am pardhan of the jhuggi Kaushalpuri, Lal Bagh therefore I knew Rajneesh and Hans Raj and they are resident of the said area. I know their houses also. I did not know the name of the deceased. I did not see the color of gathri therefore I cannot identify the cloth of gathri. I can identify the accused persons if shown to me.
At this stage the witness has seen towards the accused Rajneesh and Hans Raj and correctly identified them as the same persons who were seen by him while taking the gathri....."
73. In his crossexamination the said witness has explained that he is residing in the area for the last twenty years. He has admitted that there is a difference regarding house number in his election card and the address given by him in the Court since the address mentioned in his election card is N9/C/423, St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 85 whereas he had mentioned the address as N25B/423 in the Court. However, he has explained that there is a printing error in the election identity card. He has further admitted that there are no street lights in the streets and that in their locality there are two - three sets of public convenience which remain closed after 11 PM.
74. The Ld. Defence Counsel has vehemently argued that the said witness Sudama is a planted witness and his testimony cannot be relied upon. It is pointed out that the witness having admitted that there are twothree sets of toilet in the vicinity and as per his daily routine he used a public toilet, it does not appear probable that he went to ease himself at the railway line. He has further argued that there is a major discrepancy in the house number mentioned in the election card of the witness and the house no. given by the witness in the Court. I have considered the submissions made before me. The witness Sudama (PW14) is a resident of the same area. Here, I may observe that the discrepancy in the address mentioned in the election identity card with the address mentioned by the witness in the Court, has been duly explained. There is no history of previous enmity between the witness Sudama and the accused Rajnish and Hansraj. More over, on the same day i.e. 17.5.2010 he had informed the police that he had seen the accused Rajnish and Hans Raj carrying a gathri. Being a resident of the same area Sudama (PW14) knew the accused Rajnish and Hans Raj, however, he has not been able to tell the name of the deceased rightly so since by the time he reached the spot, the dead body had already been taken away from the spot where it was discovered. Therefore, the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 86 statement made by Sudama (PW14) to the effect that he had seen the accused Rajnish and Hans Raj carrying away a gathri on the intervening night of 16/17.5.2010 at about 1:30 - 2:00 AM (midnight), appears to be correct. Merely because in his crossexamination the witness has admitted that there are two or three sets of public toilets in the area, is no ground to disbelieve his statement since a valid explanation is forthcoming from the witness who has explained that the public toilets usually closed at about 11:00 PM and hence in case if any resident of the area has a pressing urge to attend the call of nature after 11:00 PM then under these circumstances, it is only natural that the public conveniences being closed by 11:00 PM, he would go to other places to ease himself which in the present case is the railway line near the jhuggi cluster where he stays. Even otherwise the witness Sudama is known to accused Rajnish and Hans Raj being Pradhan of the area and was not known to the deceased and therefore there is no reason why he would have falsely implicated them in this case. Even otherwise the injury no.4 i.e. vertical grazing over the back of the deceased as reflected in the postmortem report Ex.PW7/A is indicative of the fact that the murder had taken place somewhere else and the body of the deceased was dragged to the place where it was finally abandoned. The postmortem report Ex.PW7/A further indicates that the death was caused around 1:00 AM and the witness Sudama having seen the accused carrying a gathri at 1:30 - 2:00 AM who on seeing him started moving fast, is suggestive of the fact the accused were not comfortable on seeing Sudama and were perhaps carrying something in the gathri which they did not want Sudama to St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 87 see. Further, the fact that gathri containing the dead body of the deceased was found abandoned at a place which is hardly 15 to 20 meters away from the jhuggi of the accused Rajnish which is on the route to the railway lines through the gali from the house of Rajnish as reflected in the site plans Ex.PW20/A and Ex.PW21/D is strong indicator against the accused Rajnish and Hans Raj while determining their guilt.
Recovery of the salwar and articles belonging to the deceased at the instance of the accused:
75. The case of the prosecution is that the accused Shobha (wife of accused Rajnish) after her arrest made a disclosure statement pursuant to which she handed over a bed sheet which was lying on the bed in her jhuggi as the same which was lying there at the time of the incident which bed sheet was thereafter seized vide memo Ex.PW17/E. She also took the police party to a Kuredan which is not covered by a boundary wall and got recovered a black coloured salwar which they (all the accused) had used for strangulating the deceased which salwar was taken into possession vide memo Ex.PW17/F. Thereafter the accused Rajnish and Hans Raj led the police party at Parmeshwari Wala Bagh at GTK Road and got recovered the purse belonging to the deceased which purse was containing one pocket diary, one visiting card and one bracelet type chain of silver colour like object.
76. Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 88 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.
77. 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.
78. 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.St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 89
5. That a man has a certain reputation, is a fact.
79. 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".
80. 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 Section 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. King Emperor 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 Committee considered S. 27 of the Indian Evidence Act, as under: St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 90 ".......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.
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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 91 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......"
81. 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 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 92 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 about other parts of the evidence.
82. 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 93 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.
83. 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 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 94 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......"
84. Applying the settled principles of law to the facts of the present case, it is evident that the place where the dead body was recovered was already within the knowledge of the police but not the place where the murder of the deceased was committed, which place had been pointed out to them by the police. It was also not within the knowledge of the police that the strangulation of the deceased Rohit had been caused with a salwar which the accused had thrown away in an open kuredan or that after the crime the purse of the deceased Rohit containing a pocket diary and visiting cards and one bracelet type chain of silver like object had been taken away by the accused. What turns on the fact that accused Rajnish and Hans Raj pointed out the place of murder of the deceased which place was not in the knowledge of the police. Thereafter the accused Rajnish and Hans Raj further led them to Parmeshwari Wala Bagh from where they got recovered the purse of the deceased Rohit containing a pocket diary and visiting cards and one bracelet type chain of silver like object, which place was not in the knowledge of the police previously. The said purse had been duly identified by the brother of the deceased namely Pintoo Yadav in St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 95 the Test Identification Proceedings which are Ex.PX1 (not disputed by the accused). The fact that Rajnish and Hans Raj pointed out the said places and got recovered the purse of the deceased, is a strong pointer towards the guilt of accused Rajnish and Hans Raj.
85. However, in so far as the recovery of bed sheet is concerned, the FSL Report Ex.PW10/A establishes that it does not contain any blood stains and hence its recovery by the accused Shobha is immaterial and the said bed sheet cannot be connected to the offence. However, the black coloured salwar Ex.P1 got recovered by accused Shobha from an open Kuredan makes her disclosure statement Ex.PW17/D admissible in evidence to the extent of discovery of fact that this salwar had been thrown in the Kuredan by her. Here, I may also observe that it has been explained during the evidence that this is not an official MCD Kuredan but an open space where persons living in the vicinity normally throw their waste and perhaps it is for this reason that this salwar could be recovered even after four days of the incident. Test Identification proceedings of the recovered articles belonging to the deceased:
86. The case of the prosecution is that the accused Rajnish and Hans Raj had got recovered a purse containing one pocket diary having eleven pages, one visiting card of Mahalaxmi Jeweler, one bracelet type chain of silver like object belonging to the deceased. The said articles (collectively Ex.P9 )were identified by Pintoo Yadav on 3.6.2010 vide proceedings Ex.PX1 which proceedings have St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 96 not been disputed by the accused persons.
Motive:
87. According to the prosecution case two days prior to the incident the deceased Rohit had earned a large sum by picking somebody's pocket and hence the accused and deceased wanted to enjoy the proceeds of this crime on which they went to the house of Rajnish. At night after consuming liquor Raohit tried to commit rape upon Shobha the wife of accused Rajnish while Rajnish was sleeping inside the jhuggi and Hans Raj was sleeping outside the jhuggi. Shobha raised an alarm on which both Rajnish and Hans Raj woke up due to which reason Rohit ran away from there. Thereafter, all the accused were annoyed with Rohit and planned to finish Rohit and in pursuance to the above they all committed the murder of Rohit after two days.
88. Before coming to the merits of the allegations, I may note that the 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 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 97 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.
89. 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.
90. Applying the settled principles of law to the facts of the present case, it is evident that in so far as the background of the deceased and his association with Rajnish and Hans Raj is concerned, it stands established. It is also conclusively proved and even the brothers of the deceased have admitted that the deceased Rohit was indulging into wrong habits and not only did he commit theft at the railway station but used to enjoy the proceeds of his crime by consuming liquor with his friends and also by womanizing.
91. The theory of the prosecution of Rajnish and Hans Raj having hatched a conspiracy to commit the murder of Rohit because he had misbehaved with Shobha two days earlier is full of loopholes. First there is nothing on record to establish prior meeting of mind or planning. Had that been so, the accused would have rather preferred to take Rohit elsewhere rather than to commit the crime while sitting in his own house. Further, the medical evidence as reflected St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 98 from the postmortem report would have been consistent with the theory of premeditation which is not the case. The fact that the offence took place at the Jhuggi of accused Rajneesh coupled with signs of scuffle on the face of Rohit showing that his mouth had been pressed hard to ward off his cries, establish that whatever incident had happened was on the same night and not of two nights prior and it is for this reason that all the accused i.e. Rajnish, Hans Raj and Shobha must have been taken by surprise resulting into a scuffle involving more than one person followed by strangulation with whatever material was readily available at the spot which in the present case was the salwar of accused Shobha. A ladies salwar is the most unlikely material which can be used as a weapon of offence for purposes of strangulation and the fact that the deceased had been strangulated by a salwar is indicative of the fact that the murder had taken place either in a room which was privately used by a lady where her clothes were kept or in a room used by a lady and the salwar was easily available on account of the preparation made for committing a sexual assault on the lady which was foiled. Perhaps this also explains why hurriedly the body of deceased was thereafter put in a shawl which is again indicative of the fact that the offence took place at a residential house where a shawl would have been easily available where the body of the deceased was put and hurriedly dragged and taken to the spot where it was left at the nearest railway lines about 10 to 15 meters away from the jhuggi of Rajnish. Unfortunately for the accused, while they were on the way, Sudama who was returning from the railway lines after attending the call of nature saw them (i.e. Rajnish and Hans Raj) with a gathri St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 99 and on seeing him the accused Rajnish and Hans Raj became evasive and started moving very fast. This conduct of the accused Rajnish and Hans Raj as witnessed by Sudama at about 1:30 - 2:00 AM which is soon after the incident is indicative of the common intention of the accused Rajnish and Hans Raj. Therefore, under these circumstances, I hereby hold that the prosecution has not been able to successfully establish any premeditation. Rather, it stands established that the offence of murder had been committed without any premeditation and the motive for the same developed at the spur of the moment when they witnessed the behaviour of the deceased Rohit with Shobha after which both these accused i.e. Rajnish and Hans Raj acted in consortium. Subsequent conduct of the accused:
92. As per the provisions of Section 8 of the Indian Evidence Act, 1872 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
93. The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
94. It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 100 relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
95. Applying the settled principles of law to the facts of the present case two important aspects requiring consideration emerge. Firstly that when Sudama (PW14) a resident of the same Jhuggi Cluster saw the accused Rajnish and hans Raj passing through the gali at 1:302:00 AM carrying a gathri between them and on seeing him both the accused (i.e. Rajnish and Hans Raj) became evasive and started moving very fast. This is suggestive of the fact the accused were not comfortable on seeing Sudama and were perhaps carrying something in the gathri which they did not want Sudama to see. Secondly that on the next day when the body of the deceased was found abandoned in a gathri in the early morning hours after which the brothers of the deceased informed the police of having lase seen the deceased Rohit alive in the company of the accused Rajnish and Hans Raj and even Sudama informed the police on the same day that he had seen the accused Rajnish and Hans Raj passing through the gali with a gathri between them that suddenly both the accused Rajnish and St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 101 Hans Raj were not found available in their house by the police. It is this conduct of the accused Rajnish and Hans Raj which tends to raise eyebrows. What is that that suddenly both the accused Rajnish and Hans Raj who are not into any regular employment or related to each other, would suddenly leave the area together without any information to any person or justification for the same.
96. When the police reached the house of the accused Rajnish to make inquires about his whereabouts they were informed that he had gone to the native village and when the police reached the native village at Uttar Pradesh they were told that both the accused had come but had already left. According to the police, the accused were apprehended at ISBT Anand Vihar whereas according to both the accused they were picked up from their native village but both of them have no explanation to offer as to why and how they reached their native village and that too by leaving behind Shobha (the coaccused and wife of the accused Rajnish).
97. An opportunity was given to both the accused at the time of recording their statement under Section 313 Code of Criminal Procedure to offer any justification/ explanation for the aforesaid conduct but both the accused did not offer any explanation or justification for the same. It therefore stands established that soon after the incident the accused were on the run. First they have left for their native villages i.e. Dhar Kuan and Prem Pur (both adjoining each other) and were ultimately apprehended from ISBT Anand Vihar. It is this conduct of both the accused which is incriminating and relevant while St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 102 determining the guilt of the accused Rajnish and Hans Raj. Whether provisions of Section 304 IPC or Section 302 IPC would apply:
98. Ld. Defence Counsel has vehemently argued that assuming that the allegations against the accused are admitted even then the present case is not covered within the purview of Section 300 Indian Penal Code and the at the most the case falls within Section 304 Indian Penal Code. On the other hand the Ld. Addl. Public Prosecutor for the State has argued that the present case squarely covered within the provisions of Section 302 Indian Penal Code. In this regard I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 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 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 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 as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 103 of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 104 the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
99. Applying the settled principles of law to the facts of the present case it is evident that there was no premeditation and the offence was committed at the spur of the moment all of a sudden and the assailants have not taken any undue advantage or acted in a cruel or unusual manner. Also, no dangerous weapon was used while committing the offence which establishes lack of preparation or premeditation. Further, the fact that strangulation was caused by a soft ligature material which according to the prosecution is a salwar indicates that the place where the incident had taken place was a private room of a lady where her clothes of daily wear were lying or perhaps where she used to sleep.
100. The witness Sudama (PW14) has in his testimony proved that he had seen the accused Rajnish and Hans Raj carrying a gathri between them at about 1:302:00 AM (midnight) and on seeing him they started moving very fast. The fact that the dead body of the deceased was found in a gathri at the spot which is hardly 15 to 20 meters away from the Jhuggi of the accused Rajnish in the same direction in which Sudama had seen them going, coupled with the fact that the postmortem report Ex.PW7/A establishes vertical grazing marks on the back of the deceased establishes that the body of the deceased was dragged and therefore keeping in view the totality of the circumstances the assumption St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 105 that the said gathri contained nothing but the body of the deceased which was left at the spot hardly 15 to 20 meters away from the jhuggi of Rajnish. On the basis of the evidence on record the of events which now emerge are as under:
➔ On 16.5.2010 at 9:00 PM Rajnish and Hans Raj come to the Jhuggi of the deceased Rohit searching for him when the family of Rohit informed that he is not available.
➔ At 10:00 PM (16.5.2010) Chottey Yadav and Sushil Yadav the real brothers of the deceased, after having their dinner go out for a walk near the railway lines where they see Rohit talking to the accused Rajnish and Hans Raj under the railway pedestrian bridge after which they watch them all i.e. both the accused and deceased moving towards Kaushal Puri side.
➔ At about 1:302:00 AM (1617.5.2010) Sudama the Pradhan of the Jhuggi Cluster see both the accused Rajnish and Hans Raj carrying a gathri while Sudama returned after attending a call of nature and he thinks that Rajnish and Hans Raj are carrying some waste articles or luggage and on seeing him both the accused start moving very fast.
➔ On 17.5.2010 at about 5:38 AM information was received at Police Station Adarsh Nagar regarding the dead body ling at Gali No.1, Lal bagh, Kaushal Puri.
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 106
➔ At about 8:15 AM (17.5.2010) Pintoo Yadav brother of the deceased reaches the spot and identifies the dead body as that of his brother Rohit.
➔ At 10:45 AM (17.5.2010) Chottey Yadav brother of the deceased Rohit, who has left for his work at Azadpur Mandi in the early morning hours, reaches his house to have his breakfast when his mother informs him about the death of Rohit on which Chottey Yadav reaches the spot where the body is found at about 11:15 AM and informs the police that he had last seen his brother Rohit alive in the previous night at 10:00 PM in the company of accused Rajnish and Hans Raj.
➔ At about 11:30 AM (17.5.2010) after receiving information regarding dead body being found, Sushil Yadav a rickshaw puller and the brother of the deceased reaches the spot where the body was found but by that time the body has been taken for postmortem and he along with Chottey Yadav informs the police that he has last seen his brother Rohit alive in the previous night at 10:00 PM in the company of accused Rajnish and Hans Raj.
➔ At around 10:30 AM (17.5.2010) when Sudama the Pradhan of the Jhuggi cluster is informed about the dead body being found in a gathri near the railway lines at a St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 107 place which is hardly 15 to 20 meters away from the house of Rajnish, he gets suspicious and immediately reaches the spot where the dead body was found but by that time the body has been removed for postmortem and he is unable to see the face of the deceased. He immediately informs the police at the spot itself that he had seen Rajnish and Hans Raj both residents of the same jhuggi cluster carrying the gathri from the gali in the previous night at about 1:30 - 2:00 AM.
➔ The postmortem report Ex.PW7/A indicates the time of death to be around 1:00 AM (intervening night of 1617.5.2010).
➔ The cause of death is asphyxia consequent upon ligature strangulation caused by a soft ligature material which according to the prosecution is salwar. Dr. Kul Bhushan Goel (PW7) has opined that the death could be caused by this salwar (Ex.P1)
101. Both the accused Rajnish and Hans Raj in their statements under Section 313 Code of Criminal Procedure have simply denied the incriminating evidence which has been put to them. They have failed to explain the circumstances when they were seen in the company of the deceased and also the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 108 time when they parted with the company of the deceased. Firstly it is borne out from the record that the deceased was a vagabond and used to commit small crimes for his livelihood. Secondly it stands established that he was an alcoholic and womanizer. Thirdly it is established that the accused Rajnish and Hans Raj were carrying a gathri in the intervening night of 1617.5.2012 when they were seen by Sudama on which they started moving very fast. When this material was put to them, the accused failed to explain what was contained in the gathri they were carrying at 1:30 - 2:00 AM (midnight) and why they were apprehensive of Sudama when seen by him. Fourthly it stands established that the strangulation material was a salwar indicating that the incident had taken place in a room which was being privately used by a lady where her clothes of daily wear were kept. Fifthly the postmortem report establishes signs of scuffle and the fact that the mouth of the deceased was shut forcibly by use of pressure in order to ward off cries indicating that there was more than one person involved in the incident leading to the death of the deceased at around 1:00 AM. The injury no.4 (postmortem report) i.e. grazing marks on the back of the deceased indicate the dragging of the body which aspect find corroboration from the independent evidence in the form of oral testimony of Sudama establishing that after the incident it was Rajnish and Has Raj who were carrying the dead body in the gathri between 1:30 - 2:00 AM which gathri containing the body was discovered at 5:38 AM. Lastly the entire sequence of events borne out as above indicate that in fact on the date of the incident the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 109 deceased Rohit was present in the house of the accused Rajnish after his brothers Chottey Yadav and Sushil Yadav saw him moving towards Kaushalpuri side along with the accused Rajnish and Hans Raj and there was nothing unusual in the same since even previously Rohit used to sleep in the house of accused. The manner in which the offence was committed is indicative of the fact that there was a lack of preparation and the deceased was killed with the whatever material easily available in the room which was the salwar of a lady. This establishes that the deceased Rohit had in fact entered into the room of Shobha (wife of Rajnish) when she raised an alarm on account of which Rajnish and Hans Raj woke up and in the heat of passion thereafter killed Rohit with whatever material they could easily reach out to in the said room which incidentally was the salwar of the accused Shobha. The fact that both Rajnish and Hans Raj were seen together carrying a gathri between them is strongly indicative of the fact that Shobha had raised an alarm due to which both of them woke up because had that not been the case surely Hans Raj who was sleeping outside would not have come to know of the incident. Even the postmortem report indicate the use of force by more than one person.
102. The evidence on record is also suggestive of two possibilities first that the accused Shobha and the deceased Rohit were having a consensual relationship when they were caught by the accused Rajnish who could not bear the same and in the heat of passion he along with coaccused Hans Raj strangulated Rohit. The second possibility is that, as claimed by accused Shobha, while she was sleeping in her room Rohit forcibly entered and tried to St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 110 push himself down on Shobha on which she raised an alarm and on hearing the same Rajnish and Hans Raj came inside and caught hold of the deceased Rohit and strangulated him. In my view it is the second possibility which appears to be more probable because had it been a consensual relationship there would have been no alarm by Shobha and Hans Raj would have had nothing to do with the incident. However, in either of the above two possibilities one thing which is conclusively established is the fact that the crime had been committed in a heat of passion without premeditation and the accused have not taken any undue advantage or acted in a cruel or unusual manner.
103. This being so, I hereby hold that the present case falls within the purview of Section 304 (Part 1) Indian Penal Code (not under Section 302 Indian Penal Code) as the act by which the death had been caused (strangulation) was done with the intention of causing death and Section 201 Indian Penal Code for causing disappearance of evidence of crime. Allegations against the accused Shobha:
104. In so far as the accused Shobha is concerned, the only evidence against her is her own disclosure and also the disclosure statement of the accused Rajnish and Hans Raj. According to the prosecution, the murder of the deceased was committed in the room of Shobha. The testimonies of the brothers of the deceased Rohit show that the accused Rajnish and Hans Raj were associates in the various crimes with the deceased Rohit. In fact Shobha has neither been named anywhere nor identified by them. Merely because she has got the salwar (the soft ligature material with which the deceased was St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 111 strangulated) recovered from the Kuredan would not be sufficient to hold her guilty of committing the murder of deceased Rohit. At the most she can be held responsible for destruction of evidence. In fact no motive has been attributed to Shobha showing her involvement in the offence. The offence had taken place at the spur of moment and whatever material was available in the house was used. In view of my discussion as aforesaid shows that the accused Shobha appears to be a victim and at the most would be held liable for causing disappearance of the evidence of crime in order to screen her husband Rajnish and accused Hans Raj from legal punishment.
FINAL CONCLUSIONS:
105. In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 112 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
106. Applying the settled principles of law to the facts of the present case, it is evident that the identity of the accused stands established. It stands established that Rohit (deceased) was the good friend of accused Rajnish and Hans Raj and Rohit used to commit small theft in the company of the accused Rajnish and Hans Raj. It further stands established that Rohit used to loiter around the Azadpur railway station and sometimes even slept there. It stands established that on 16.5.2010 at 9:00 PM Rajnish and Hans Raj came to the Jhuggi of the deceased Rohit searching for him when the family of Rohit informed that he was not available. Further at 10:00 PM Chottey Yadav and Sushil Yadav the real brothers of the deceased, after having their dinner went out for a walk near the railway lines where they saw Rohit talking to the accused Rajnish and Hans Raj under the railway pedestrian bridge after which they watched them all i.e. both the accused and deceased moving towards Kaushal Puri side. At about 1:302:00 AM Sudama the Pradhan of the Jhuggi Cluster saw both the accused Rajnish and Hans Raj carrying a gathri while Sudama returned after attending a call of nature and he thought that Rajnish and Hans Raj were carrying some waste articles or luggage and on seeing him both the accused started moving very fast. It is further established that on 17.5.2010 at about 5:38 AM information was received at Police Station Adarsh Nagar regarding the dead body ling at Gali No.1, Lal bagh, Kaushal Puri. At about 8:15 AM Pintoo Yadav brother of the deceased reached the spot and identified St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 113 the dead body as that of his brother Rohit. Further, at 10:45 AM Chottey Yadav brother of the deceased Rohit, who had left for his work at Azadpur Mandi in the early morning hours, reached his house to have his breakfast when his mother informed him about the death of Rohit on which Chottey Yadav reaches the spot at about 11:15 AM where the body had been found and informs the police that he had last seen his brother Rohit alive in the previous night at 10:00 PM in the company of accused Rajnish and Hans Raj. It further stands established that at about 11:30 AM after receiving information regarding dead body being found, Sushil Yadav a rickshaw puller and the brother of the deceased reached the spot where the dead body had been found but by that time the body had been taken for postmortem and he along with Chottey Yadav inform the police that they had last seen their brother Rohit alive in the previous night at 10:00 PM in the company of accused Rajnish and Hans Raj. It also stands established that at around 10:30 AM when Sudama the Pradhan of the Jhuggi cluster receives information regarding a dead body being found in a gathri near the railway lines at a place which is hardly 15 to 20 meters away from the house of Rajnish, on which he gets suspicious and immediately reaches the spot where the dead body was found but by that time the body is removed for postmortem and he is unable to see the face of the deceased after which he immediately informs the police at the spot itself that he had seen Rajnish and Hans Raj both residents of the same jhuggi cluster carrying the gathri from the gali in the previous night at about 1:30 - 2:00 AM. The medical evidence on record establishes that the cause of death in the present case was St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 114 asphyxia consequent upon ligature strangulation and the Injury No.2 i.e. ligature pressure contused abraded mark running horizontally all around the neck and & below Apple of adam with differed margins and linear lines in between the LM, was sufficient to cause death in ordinary course of nature. It also stands established that the ligature mark as described in the postmortem report could be caused by the salwar got recovered by the accused Shobha. It further indicates the time of death to be around 1:00 AM (intervening night of 1617.5.2010).
107. There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the 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.
108. 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 St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 115 natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
109. In so far as the accused Rajnish and Hans Raj are concerned, the prosecution has not been able to prove and substantiate the intention or knowledge attributed to them and it stands established that the offence has been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. Therefore, I hereby hold the accused Rajnish and Hans Raj guilty of the offence under Section 304 (Part 1)/ 201 Indian Penal Code (not under Section 302 Indian Penal Code.
110. Further, in so far as the accused Shobha is concerned, she is acquitted of the offence under Section 302 Indian Penal Code and I hold her guilty only of the offence under Section 201 Indian Penal Code for which she is accordingly convicted.
111. Be listed for arguments on sentence on 19.4.2012.
Announced in the open court (Dr. Kamini Lau)
Dated: 12.4.2012 ASJII(NW): ROHINI
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 116
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE -II (NORTHWEST) ROHINI COURTS: DELHI Session Case No. 1234/2010 Unique Case ID No. 024040202292010 State Vs. (1) Rajnish S/o Sh. Hira Lal R/o Village Dharkuan PS Pisawa, Distt. Sitapur, Uttar Pradesh Also at:
N22/B330, Kaushalpuri, Lal Bagh, Azadpur, Delhi (Convicted) (2) Hans Raj S/o Sh. Khem Karan R/o Village Prempur, PS Pisawa, Distt. Sitapur, Uttar Pradesh Also at:
N22/B330, Kaushalpuri, Lal Bagh, Azadpur, Delhi (Convicted) (3) Mrs. Shobha W/o Rajnish R/o Jhuggi No. N22/ B330, Kaushal Puri, Azadpur, Delhi (Convicted) St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 117 FIR No.: 136/2010 Police Station: Adarsh Nagar Under Section: 302/201/34 Indian Penal Code Date of conviction: 12.4.2012 Arguments heard on: 19.4.2012 Date of Sentence: 24.4.2012 APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
All the three convicts in judicial custody with Sh. Rajender Yadav Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 24.4.2012 the accused Rajnish and Hans Raj have been held guilty of the offence under Section 304 (Part 1) read with 201 Indian Penal Code (not under Section 302 Indian Penal Code). Further, the accused Shobha has been acquitted of the charge under Section 302 Indian Penal Code but she has been held guilty of the offence under Section 201 Indian Penal Code.
The deceased in the present case namely Rohit was a good friend of the accused Rajnish and Hans Raj. Rohit used to commit small thefts in the company of the accused Rajnish and Hans Raj and used to loiter around the Azadpur railway station and sometimes even slept there. Whatever Rohit used St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 118 to earn, he spent the same on womanizing and alcohol. As per the case of the prosecution two day before the incident i.e. on 14.5.2010 Rohit laid a big hand and got large amount of money which he wanted to spend along with his friends Rajnish & Hans Raj due to which reason they all went to the house of Rajnish and consumed alcohol. After consuming alcohol Rohit left the house of Rajnish while Hans Raj slept in the jhuggi of Rajnish. During night hours Rohit returned to the jhuggi of Rajnish and misbehaved with his wife namely Shobha and on an alarm being raised by Shobha both Rajnish and Hans Raj who were sleeping in the jhuggi woke up on which Rohit went away. As per allegations, all the accused were annoyed with the conduct of Rohit and they planned to finish off Rohit pursuant to which on the intervening night of 1617.5.2010 all the accused committed murder of Rohit by strangulating him with the help of a salwar and in order to screen themselves from legal punishment, the accused Rajnish and Hans Raj put the dead body of Rohit in a grey colour chaddar and left the same in gali near Jhuggi No. B1, Kaushal Puri, Lal Bagh, Azazpur.
On the basis of the testimonies of the various witnesses examined by the prosecution including the brothers of the deceased namely Sushil Yadav, Pintoo Yadav & Chottey Yadav (who are the witnesses of last seen) and the Pradhan of the jhuggi cluster namely Sudama and also on the basis of medical and forensic evidence, this Court vide its judgment dated 24.4.2012 held that it has been established that the deceased Rohit was last seen alive in the company of the accused Rajnish and Hans Raj on 16.5.2010 at 10:00 PM at Azadpur Railway Station while he was talking with the accused Rajnish and Hans Raj. It St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 119 has also been established that during the intervening night of 1617.5.2010 both the accused Rajnish and Hans Raj took liquor along with Rohit after which Rohit misbehaved with the accused Shobha (wife of accused Rajneesh). Further, it has been established that there was a scuffle between Rohit and accused Rajnish and Hans Raj and in the heat of passion accused Rajnish and Hans Raj strangulated Rohit with a salwar lying in the room. It has also been established that both the accused Rajnish and Hans Raj thereafter placed the dead body of Rohit in a shawl lying in the room and took the same to gali no.1 Lal Bagh, Kaushalpuri and at that time Sudama a resident of the same area who was returning after attending the call of nature, saw them. It has further been established that in the morning of 17.5.2010 when the police reached the spot where the gathri containing the dead body of Rohit was lying, the brothers of the deceased namely Sushil Yadav and Chottey Yadav informed the police that they had last seen the deceased alive in the company of Rajnish and Hans Raj on the previous night at about 10:00 PM. It also stands established that thereafter when the police team reached the house of Rajnish and Hans Raj they could not be found and were absconding but they were apprehended from ISBT Anand Vihar, which conduct of the accused points out towards their guilt. It further stands established that pursuant to the disclosure statements of both the accused Rajnish and Hans Raj, the accused Shobha was arrested who got recovered one salwar from an open kuredan with which they strangulated the deceased Rohit and both the accused Rajnish and Hans Raj got recovered the purse belonging to the deceased which was duly identified by the brothers of St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 120 deceased. Further, from the medical evidence it stands established that the cause of death in the present case was asphyxia consequent upon ligature strangulation and the Injury No.2 i.e. ligature pressure contused abraded mark running horizontally all around the neck and & below Apple of adam with differed margins and linear lines in between the LM, was sufficient to cause death in ordinary course of nature and the ligature mark as described in the postmortem report could be caused by the salwar got recovered by the accused Shobha. Further, it has been held that there was no premeditation or pre planning and the offence was committed suddenly in the heat of passion and the accused have not taken undue advantage or acted in a cruel or unusual manner no dangerous weapon being used in the offence.
In view of the above, this Court has held both the accused Rajnish and Hans Raj guilty of the offence under Section 304 (Part 1) read with 201 Indian Penal Code (not under Section 302 IPC) and convicted them accordingly. Further, the accused Shobha has been acquitted of the charge under Section 302 Indian Penal Code but has been held guilty of the offence under Section 201 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Rajnish aged about 33 years is totally illiterate and is a farmer by profession. He has a family comprising of three married brothers, one married sister, wife (who is in judicial custody) and one daughter who is presently studying in class 10th. The convict Shobha Devi is the wife of convict Rajnish. The convict Hans Raj a young boy of 20 years is 5th class pass and is a rickshaw puller by profession. St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 121 He has a family comprising of aged parents, four married brothers and two married sisters. Ld. Counsel appearing on behalf of the convicts has vehemently argued that all the convicts are first time offenders and have no criminal background. He has pointed out that the convicts are in judicial custody since 21.5.2010 and the daughter of the convicts Rajnish and Hans Raj is totally dependent upon her parents who are both in judicial custody and any harsh view would ruin her future. He requests that a lenient view be taken against all the convicts.
On the other hand the Ld. Addl. Public Prosecutor for the State has vehemently argued that the convicts do not deserve any leniency since the deceased Rohit himself was a young boy of 1617 years of age. He has prayed that a strict punishment be awarded to the convicts.
I have considered the rival contentions. All the convicts are first time offenders and are not involved in any other case. In fact the convict Rajnish and Shobha are husband and wife and their only daughter who is presently studying in class 10th, is totally dependent upon them. The convict Hans Raj is a young boy of 20 years and is the helping hand of his parents. All the convicts belong to very poor families and are in judicial custody since 21.5.2010 ie. one year and eleven months.
Keeping in view the family background of the convicts, a lenient view is taken against the convicts. I award the following sentence to the convict Rajnish:
1. For the offence under Section 304 (Part 1) Indian Penal Code the St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 122 convict is sentenced to Rigorous Imprisonment for a period of Ten (10) years and fine to the tune of Rs.5,000/. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of one month.
2. For the offence under Section 201 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) years and fine to the tune of Rs.1,000/. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of 15 days.
Both the sentences shall run concurrently.
In so far as the convict Hans Raj is concerned, I award the following sentence to him:
1. For the offence under Section 304 (Part 1) Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Ten (10) years and fine to the tune of Rs.5,000/. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of one month.
2. For the offence under Section 201 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) years and fine to the tune of Rs.1,000/. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of 15 days.
Both the sentences run concurrently.
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 123
Further, in so far as the convict Shobha is concerned, she is a lady with no previous criminal record and a victim of circumstances. Her only young daughter is a student of class 10th and is at the mercy of her relatives both the parents being in jail and hence a lenient view is taken. She is hereby sentenced to Rigorous Imprisonment for a period of one year and eleven months (i.e. period already undergone) and fine to the tune of Rs.1,000/ for the offence under Section 201 Indian Penal Code. In default of payment of fine, the convict shall further undergo Simple Imprisonment for a period of fifteen days.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial in the present case as per rules.
The convicts are informed that he have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to all the convicts free of costs and another copy be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.04.2012 ASJII(NW)/ ROHINI
St. Vs. Rajnish Etc., FIR No. 136/2010, PS Adarsh Nagar Page No. 124