Delhi District Court
State vs . (1) Prem Singh on 29 May, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 137/2011
Unique Case ID No.: 02404R0325332009
State Vs. (1) Prem Singh
S/o Late Hoshiyar Singh
R/o B43, Kewal Park,
Azadpur, Delhi
(Convicted)
(2) Kamal Kishore
S/o Sh. Ganga Ram
R/o House No. 39,
Ambedkar Colony, Alipur,
Delhi
(Convicted)
(3) Manoj Kumar
S/o Sh. Ram Phool
R/o House No. 2044,
Near Post Office, Alipur Garhi,
Delhi
(Convicted)
FIR No.: 206/2009
Police Station: Adarsh Nagar
Under Section: 302/34 Indian Penal Code
Date of committal to Session Court: 16.1.2010
Date on which orders were reserved: 2.5.2013
Date on which Judgment announced: 17.5.2013
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 1
JUDGMENT:
(1) As per allegations, on 10.9.2009 between 1:00 PM to 4:00 PM at B43, Kewal Park, Adarsh Nagar, Delhi all the accused Prem Singh, Kamal Kishore and Manoj Kumar in furtherance of their common intention committed the murder of Hoshiyar Singh.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 10.9.2009 at about 4:40 PM DD No. 26A was received at Police Station Adarsh Nagar pursuant to which SI Kishan Lal along with Ct. Sanjeev reached B43, Kewal Park, Azadpur, Delhi where they found a dead body of a male lying on the cot in the outer room of the house. In the meanwhile Inspector Mahavir Singh Kaushik also reached the spot and inspected the dead body and found blood on the private parts of the body. Crime Team was called at the spot who inspected the scene of crime. The name of the deceased was revealed as Hoshiyar Singh and Surat Singh the real brother of the deceased informed the police that at about 4:15 PM when he came to his house he found his niece (i.e. daughter of the deceased) Kavita weeping and his brother Hoshiyar Singh was lying dead on the cot. According to Surat Singh, in the meanwhile his elder brother Jai Singh also came to the spot and they both took Hoshiyar Singh to Khera Clinic where he was declared dead by the doctors on which they took the dead body with them and dialed 100 number.
Surat Singh further informed the police that the son of Hoshiyar Singh St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 2 namely Prem Singh was having a property dispute with his father Hoshiyar Singh and Prem Singh had given a beating to Hoshiyar Singh on many occasions and had even threatened him to kill. He also told the police that as soon as the PCR call was made, Prem Singh ran away from the spot and hence he expressed his suspicion on Prem Singh.
(3) On the basis of the statement of Surat Singh the present case was got registered and the investigations commenced. One Qualis vehicle bearing No. DL4CR6693 was found parked outside the house of the deceased which was taken into possession. The postmortem on the dead body was got conducted at BJRM Hospital after which the dead body was handed over to its claimants. During investigations on 12.9.2009 the accused Prem Singh was apprehended from village Bhadola near Shiv Mandir at the instance of Surat Singh and during his interrogation Prem Singh disclosed his involvement in the present case and also disclosed the names of his other associates as Kamal Kishore and Manoj. Thereafter at the instance of accused Prem Singh the accused Kamal Kishore was arrested who confessed his involvement in the present case after which he was arrested. Further, at the instance of accused Prem Singh the accused Manoj was also arrested who on interrogation also admitted his involvement in the present case. On 13.09.2009 at the instance of accused Prem Singh one lathi was recovered from the room where the dead body was found which lathi was taken into possession. On 16.09.2009 during Police Custody remand at the instance of accused Kamal Kishore one rusted iron rod givein St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 3 a look of a Chheni was recovered from the garbage at the corner of the room where the dead body of Hoshiar Singh was found which was seized and at the instance of accused Manoj one sweater was got recovered from the garbage lying outside the room with which the accused had tried to strangulate the deceased. After completion of investigations charge sheet was filed against the accused persons.
CHARGE:
(4) Charge under Section 302/34 Indian Penal Code was settled against the accused Prem Singh, Kamal Kishore and Manoj to which they have pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses:
Sr. PW No. Name of the Details No. witness 1. PW 1 Surat Singh Public witness/ brother of the deceased 2. PW 2 SI Devender Police witness/ Crime Team Incharge 3. PW 3 Ct. Vipin Kumar Police witness 4. PW 4 SI Manohar Lal Police witness/ Draftsman 5. PW 5 HC Prahlad Singh Police witness/ MHCM 6. PW 6 SI Om Prakash Police witness / Duty Officer 7. PW 7 Gaganjit Singh Nodal Officer St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 4 8. PW 8 Tarun Khurana Nodal Officer 9. PW 9 Mohan Public witness/ private photographer 10. PW 10 Dr. K. Goyal Autopsy Surgeon 11. PW11 Narender Singh Public witness/ son of the deceased 12. PW12 Kavita Public witness/ daughter of the deceased 13. PW 13 Satish Public witness/ son of the deceased 14. PW 14 HC Raghuvir Singh Police witness 15. PW 15 Ct. Sanjeev Police witness 16. PW 16 Mool Chand Public witness/ neighbour of the deceased 17. PW 17 Mohit Public witness/ brother of accused Manoj 18. PW 18 Ganga Ram Public witness/ father of accused Kamal Kishore 19. PW 19 HC Sukhbir Singh Police witness 20. PW 20 Jai Singh Public witness/ brother of the deceased 21. PW 21 Naresh Kumar Public witness/ neighbour of the deceased 22. PW 22 Indresh Kumar FSL Expert 23. PW 23 Vijender Singh Pubic witness/ son of Sandhu of accused Prem Singh 24. PW 24 Ashok Kumar Public witness 25. PW 25 Om Dutt Bhardwaj Public witness/ signatory to the compromise between Prem Singh & Hoshiyar Singh 26. PW 26 Raj Pal Public witness 27. PW 27 Surat Singh Public witness/ Sandhu of accused Prem Singh 28. PW28 Ram Phool Public witness/ father of accused Manoj 29. PW29 SI Kishan Lal Police witness 30. PW30 Inspector Mahavir Investigating Officer Kaushik St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 5 List of documents: Sr. Exhibit No. Details of documents Proved by No. 1. PW1/A Statement of Surat Singh Surat Singh 2. PW1/B Seizure memo of bed sheet 3. PW1/C Seizure memo of blood stained baniyan 4. PW1/D Seizure memo of Toyota Qualis 5. PW1/E Dead body identification statement 6. PW1/F Dead body handing over memo 7. PW1/G Arrest memo of accused Prem Singh 8. PW1/H Personal search of accused Prem Singh 9. PW1/I Disclosure statement of Prem Singh 10. PW1/J1 Arrest memo of accused Manoj 11. PW1/J2 Personal search of accused Manoj 12. PW1/K1 Arrest memo of Kamal Kishore 13. PW1/K2 Personal search memo of Kamal Kishore 14. PW1/L Disclosure statement of accused Manoj 15. PW1/M Disclosure statement of Kamal Kishore 16. PW1/N Seizure memo of lathi 17. PW1/O Seizure memo of sweater 18. PW1/P Seizure memo of Chenni 19. PW1/Q Seizure memo of complaints and compromise 20. PW1/X Photocopy of compromise 21. PW1/X1 Photocopy of complaint dt. 22.7.08 22. PW1/X2 Photocopy of complaint dt. 31.5.08 23. PW2/1 Affidavit of SI Devender (formal witness SI Devender examined u/s. 296 Cr.P.C.) St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 6 24. PW2/A Crime Team Report 25. PW3/1 Affidavit of Ct. Vipin (formal witness Ct. Vipin examined u/s. 296 Cr.P.C.) 26. PW4/1 Affidavit of SI Manohal Lal (formal SI Manohar Lal witness examined u/s. 296 Cr.P.C.) 27. PW4/A Scaled site plan 28. PW5/1 Affidavit of HC Prahlad (formal witness HC Prahlad examined u/s. 296 Cr.P.C.) 29. PW5/A1 to Copies of entry in Register No. 19 PW5/A7 30. PW5/B Copy of RC No. 113/21/09 31. PW6/1 Affidavit of SI Om Prakash (formal SI Om Prakash witness examined u/s. 296 Cr.P.C.) 32. PW6/A Copy of FIR 33. PW6/B Endorsement on the rukka 34. PW7/A Customer Application Form in respect of Gaganjeet Singh mobile No. 9210887579 35. PW7/B Copy of Election ID Card 36. PW7/C Call details record 37. PW7/D Customer Application Form in respect of mobile NO. 9278453468 38. PW7/E Copy of driving license 39. PW7/F Call details record 40. PW7/G Certificate u/s. 65B of Evidence Act 41. PW7/H Cell ID Chart 42. PW8/A Customer Application Form in respect of Tarun Khurana mobile No. 9818908444 43. PW8/B Copy of the election ID Card 44. PW8/C Call Details Record St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 7 45. PW8/D Certificate u/s. 165B Indian Evidence Act 46. PW8/E Cell ID Chart 47. PW9/A1 to Photographs Mohan PW9/A11 48. PW10/A Postmortem Report Dr. K. Goyal 49. PW10/B Subsequent opinion 50. PW10/C Request of the IO for subsequent opinion 51. PW12/A Statement of Ms. Kavita u/s. 161 Cr.P.C. Ms. Kavita 52. PW14/A Seizure memo of mobile from Ganga HC Raghuvir Ram 53. PW14/B Seizure memo of mobile from Mohit 54. PW15/A Seizure memo of the pullandas and sample seal handed over by the doctors 55. PW17/PA Statement of Mohit u/s. 161 Cr.P.C. Mohit 56. PW18/PA Statement of Ganga Ram u/s. 161 Cr.P.C. Ganga Ram 57. PW20/A Dead body identification statement Jai Singh
58. PW20/DX1 Statement of Jai Singh u/s. 161 Cr.P.C.
59. PW22/A Biological Report Indresh Kumar
60. PW22/B Serological Report
61. PW22/C Forwarding letter
62. PW23/A Application for Superdarinama Vijender Singh
63. PW23/B Copy of RC
64. PW23/C Superdarinama
65. PW24/A Copy of driving license Ashok Kumar
66. PW24/PX Copy of Customer Application Form
67. PW27/PX1 Seizure memo Surat Singh
68. PW27/PX2 Statement of Surat Singh
69. PW28/PX Statement of Ram Phool u/s. 161 Cr.P.C. Ram Phool St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 8
70. PW30/A Rukka Insp. Mahavir
71. PW30/B Site Plan Kaushik
72. PW30/C Inquest Papers
73. PW30/D Brief facts
74. PW30/E Application for postmortem
75. PW30/F1 to Call details in respect of Kamal Kishore F4
76. PW30/G1 Call details in respect of Prem Singh to G4
77. PW30/H1 Call details in respect of Manoj Kumar to H4
78. PW30/I Sketch of iron rod / chennni
79. PW30/J PCR form EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Thirty Witnesses as under:
Public witnesses:
(7) PW1 Surat Singh is the complainant / brother of the deceased who has deposed that he is driver by profession and drives a tempo. His elder brother Hoshiar Singh (deceased) was residing at B43, near his house.
According to him, on 10.09.2009 he was returning back at about 44:15 PM with his tempo when he saw that his niece Kavita was weeping loudly on which he along with his brother Jai Singh went to the house of his elder brother Hoshiar Singh where he saw that his brother Hoshiar Singh was St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 9 lying on a cot and a bed sheet was lying over his body. He has further deposed that he removed the bed sheet and found that he was not talking on which he removed his brother to Khera Clinic where the doctor told told him that he (Hoshiyar Singh) had already expired after which they brought him back and placed him on the same cot. The witness has also deposed that he made a call on 100 number to the police from the mobile No. 9210000881 which was in the name of his brother Rattan Singh and was used by his nephew Rajiv. He has further deposed that there was a quarrel between his brother Hoshiar Singh and his son Prem Singh on the property and one court case was also pending between them. According to him Prem Singh had quarreled and given beatings to Hoshiar Singh on many occasions and Prem Singh also threatened Hoshiar Singh to kill him. Witness has further deposed that when he made the phone call to the police on 100 number at that time Prem Singh was there but after making the call he ran away from the spot. He has testified that PCR officials reached the spot and subsequently local police also reached there and recorded his statement which is Ex.PW1/A. According to him police seized one blood stained bed sheet after converting it into a cloth parcel and sealed it with the seal of MK and taken into possession vide memo Ex.PW1/B. He has proved that the police seized blood stained towel of yellow color and one baniyan and converted it into a cloth parcel sealed with the seal of MK and took the same into possession vide memo Ex.PW1/C. Witness has further deposed that St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 10 police also seized Qualis vehicle bearing No. DL4CR6693 of white color which was parked in the gali in front of H.No. B43, Kewal Park vide memo Ex.PW1/D. According to him, the dead body of his brother was removed to BJRM hospital for postmortem. He has also deposed that on 11.09.2009 he went to Mortuary BJRM hospital where he identified the dead body of his brother Hoshiar Singh vide statement Ex.PW1/E and after postmortem dead body was handed over to him vide Ex.PW1/F. He has also deposed that on 12.09.2009 he came to know that accused Prem Singh was present at Bhadola Shiv Mandir on which he informed the police about the same and he along with police reached there. He has proved that at his instance the accused Prem Singh was arrested vide memo Ex.PW1/G and his personal search was conducted vide memo Ex.PW1/H. The witness has further proved that Prem Singh was interrogated who made his disclosure statement and informed the police that there were two other associates who were also involved in the commission of crime and he could get them arrested from Alipur. He does not remember other contents of the disclosure statement of accused Prem Singh which disclosure statement is Ex.PW1/I. He has also deposed that accused Prem Singh led them to Alipur from where he got arrested accused Manoj vide memo Ex.PW1/J1 and his personal search was conducted vide memo Ex.PW1/J2 and accused Kamal Kishore was arrested vide memo Ex.PW1/K1 and his personal search was conducted vide Ex.PW1/K2. He has also proved that both the accused were St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 11 interrogated and they made their disclosure statement vide memo Ex.PW1/L and Ex.PW1/M after which they all returned back and on the way he was left near the bypass.
(8) He has further deposed that on 13.9.2009 police brought the accused Prem Singh to the house of deceased Hoshiar Singh and he was present there. The witness has further testified that the accused led the police party inside the room and pointed out towards a screw driver and a lathi. According to him the lathi was measured by the police which was 5 or 5.25 feet and was having eight knots (pour). He has proved that the lathi was converted into a cloth parcel and sealed with the seal of MK and it was taken into possession vide memo Ex.PW1/N. He does not remember what else was recovered on that day. Witness has also deposed that on 16.06.2009 police along with Kamal Kishore and Manoj came to the house of his brother deceased Hoshiar Singh and Manoj pointed out one place where the scrap material was lying. He has proved that in his presence accused Manoj pointed out a sweater of blue color at a spot where broken room garbage (kabara) of deceased Hoshiar Singh was lying and disclosed that by using this sweater they had closed the mouth of deceased on which police seized the blue sweater after it was sealed in a cloth parcel with the seal of MK and he signed the seizure memo which is Ex.PW1/O. Witness has further deposed that on the same day accused Kamal Kishore from the corner of same room took out a iron chhenni having length of about 1.5 feet and disclosed that he used this iron chhenni in the murder of Hoshiar Singh after St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 12 which police took into possession the same vide seizure memo Ex.PW1/P. The witness has also deposed that on 18.09.2009 he went to Police Station and handed over photocopy of two complaints which were written by his deceased brother against accused Prem Singh dated 31.05.2008 and 22.07.2008 and handed over copy of compromise and police seized all three documents vide seizure memo Ex.PW1/Q. He has proved the photocopy of compromise which is Ex.PW1/X, photocopy of complaint dated 22.07.2008 which is Ex.PW1/X1 and photocopy of complaint dated 31.05.2008 which is Ex.PW1/X2. Witness has further deposed that on 10.10.2009 police officials came to the house of his deceased brother along with Draftsman who prepared the site plan.
(9) Witness has further deposed that the vehicle Qualis bearing No. DL4C R 6693 is owned by son of sister in law of accused Prem Singh which vehicle had been used by accused Prem Singh who disclosed at the time of recovery of lathi that it was used in the murder of Hoshiar Singh. Witness has correctly identified the accused Prem Singh but has wrongly identified the accused Manoj as Kamal and wrongly identified accused Kamal as Manoj and has explained that he had seen the accused persons for identification in the court after one and half year and accused Manoj and Kamal were more healthy from the date of their arrest, thereafter he could not identified them properly.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 13 (10) In his cross examination by Ld. Addl. PP for the State the witness has deposed that the seizure memo mark PW1/X3 does not bear his signatures at point X and it may be signatures of Saandu/ cobrother of Prem Singh whose name is also Surat Singh.
(11) The witness has identified the case property i.e. one bed sheet which is Ex.P1; one towel and one baniyan as the same which was lying near the body of the deceased Hoshiyar Singh which towel is Ex.P2 & Baniyan is Ex.P3; one sweater of blue color as it was got recovered by accused Manoj which is Ex.P4; one pant, one shirt & one underwear as the wearing clothes by the deceased which pant is Ex.P5, Shirt is Ex.P6 & underwear which is Ex.P7; one iron chhenni like screw driver which was got recovered by accused Kamal Kishore which is Ex.P8 and the Lathi got recovered by accused Prem Singh which is Ex.P9.
(12) In his cross examination by Ld. Defence Counsel, the witness has deposed that he reached in the room at around 44:15 PM and around 50 persons were standing outside the said room. According to the witness, he took off the bed sheet from the body of his brother and called out to him but there was no response. Witness has denied the suggestion that he had stated to the police in his statement that when he saw his brother in the room he was lying dead. However, when confronted with portion from point A to A of statement Ex.PW1/A where the aforesaid fact was found recorded. Witness has denied the suggestion that he had murdered his brother St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 14 Hoshiyar Singh. He has further deposed that nobody from outside the gate came in the said room and he and his brother Jai Singh took their brother to Khera Nursing Home at around 4:30 PM. According to the witness his deceased brother was around 7075 years old at the time of incident and his house is situated at a distance of about 100 feet from the house of his deceased brother and there were two entry gates in the house of his brother. Witness has further deposed that one of the gate was towards street and other inside the house. According to him, there were around sixseven tenants residing in the house of his deceased brother and after bringing the dead body of his brother from Khera Nursing Home, his dead body was put on the same coat on which it was lying earlier. He has also deposed that about ten persons of locality came to see his deceased brother in the said room. The witness has also deposed that PCR officials reached at the spot before 5:00 PM and thereafter local police also came within 1015 minutes and after half an hour crime team also reached there. Witness has further deposed that Crime Team as well as local police inspected the spot but police did not inspect other rooms of the house of his brother and after about a month of the incident police inspected other rooms also when the police came with draftsman. Witness has testified that police recorded his statement eightnine times and he had signed all his statements. According to him, Gurender Khera, incharge of Khera Nursing Home met them and checked his brother and declared him dead. The witness has further deposed that he had taken his brother on his shoulder to Khera Nursing St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 15 Home which is around 400 feet from their house. He has testified that there was blood on the body of his brother when he was taken to Khera Nursing Home which blood also fell on his clothes but he had not handed over his blood stained clothes to the police. Witness has further deposed that he called the police on reaching to the house of his brother and the clothes of his deceased brother were not changed by them. According to the witness his hand was also stained with blood and he called the police without washing his hands. Witness has denied the suggestion that he made a call to the police informing them that a father has murdered his son at house No. E42, Kewal Vihar. According to the witness he used to drive TATA Tempo 407 and he went to the house of his deceased brother from his house as he had come from Kurukshetra. He has stated that he normally used a phone. Witness has further deposed that Prem Singh met him near Shiv Mandir near village Barola. Witness has denied the suggestion that he saw Prem Singh in the police station after his arrest on 11.09.2009 with other two boys namely Kamal and Manoj or that there was no dispute between accused Prem Singh and his deceased brother. He has also denied the suggestion that nothing was recovered at the instance of accused persons in his presence or that there was no property dispute between his deceased brother and his nephew Prem Singh.
(13) PW9 Sh. Mohan @ Monu (Photographer) has deposed that he is running a photo studio at A41, Gopal Nagar, Azadpur, Delhi110033 and on the request of the investigating officer he reached at the spot and took St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 16 eleven photographs of spot, vehicle and the dead body from different angle, which photographs are Ex.PW9/A1 to Ex.PW9/A11. According to him the said photographs were taken from digital camera, therefore he do not have any negatives of the same. This witness was not cross examined by Ld. Defence Counsel, despite opportunity granted.
(14) PW11 Narender Singh is the real brother of the accused Prem Singh. He has deposed that he is working in Azadpur mandi as commission agent and he has two brothers namely Satish Kumar and accused Prem Singh (elder brother). According to the witness Prem Singh was married in the year 1984 and was residing separately in one of the room of the aforesaid house. He has also deposed that Prem Singh used to quarrel with his father Hoshiyar Singh with regard to property and also used to beat his father and used to threaten to kill his father. According to him on 10.09.2009 at around 4:15 PM he came to his house from his work place when he saw his father lying on a cot on which he along with his cousin brothers took his father to Khera Nursing Home where he was declared brought dead. Witness has further deposed that when they came back to the house along with the dead body of his father, his elder brother Prem Singh had already left the house and he has full suspicion that his father has been killed by his elder brother Prem Singh whom he has correctly identified in the Court.
(15) In his cross examination by Ld. Defence counsel, the witness has deposed that he used to return from his job at about 12 noon and on the day St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 17 of incident he returned back at around 12 noon and he went to take food at Akash Cinema and returned back from there at around 4 PM. According to him, he was residing in the same house where there are 1011 rooms. He has testified that when they brought the dead body of their father from the hospital, he was put on the same cot on which he was initially lying. Witness has further deposed that other persons of the locality also collected in the said room where the incident took place. According to him, it was a rainy season and was raining around 12 noon when he came to his house which rain continued upto 2:30 PM. The witness has also deposed that police reached at their house at about 6:00 PM and his statement was recorded on 10.09.2009. He has further deposed that he had seen his father alive at around 12:00 noon when he came back from his job. Witness has further deposed that his elder brother Satish Kumar, his uncles Suraj Singh and Jai Singh were present in the room when they brought the dead body of his father. The witness has explained that Kawar Singh and Jai Singh took his father to Khera Nursing Home whereashe reached there later on. According to him, at the time of incident his father was around 7072 years. Witness has testified that their house is built up in the area of 200 sq. yards and there were seveneight tenants residing in the said house and all the tenants were residing with their families. According to the witness there is an open space of around 25 sq. yards in their house on the left side of the room where the dead body of his father was found which open space is used by all the tenants as well as their family members for sitting purposes. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 18 Witness has further deposed that the last rites (kirya) was performed outside the house and after the incident the house was lying open and used by their family members and other relatives as well as persons of the locality and there was no dispute with any tenant regarding the property. He has deposed that Dr. Khera had declared his father dead in the hospital since 2025 minutes of his arrival. Witness has further deposed that Prem Singh fled away after the incident in the Qualis vehicle which was parked outside the house which belongs to his Sandhu. He has also deposed that Prem Singh did not come back on the day of incident and he saw accused Prem Singh two days after the incident in the Police Station. The witness has further testified that he was called by the police on 11.09.2009 when he was accompanied by his elder brother Satish, his uncle Surat Singh and Jai Singh and they all were present at the house when police called them except Satish. According to the witness he had also seen two other boys namely Kamal Kishore and Manoj Kumar on 11.09.2009 in the police station. Witness has denied the suggestion that his brother did not give any beating to his father or that he never threatened to kill his father. Witness has further denied the suggestion that there was no property dispute between his father and his elder brother Prem Singh. (16) PW12 Smt. Kavita is the daughter of the deceased and real sister of the accused Prem Singh. She has deposed that she is a housewife and in the year 2009 she used to go to "Silai Center" at Kewal Park St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 19 extension for classes. According to the witness she has three brothers and one elder sister namely Anita who was married with Ramesh Kataria in the year 1995/1996. She has testified that her elder brother Prem Singh had quarreled with her father in the year 2008 and gave beating to her father who received head injury and received stitches on his head. According to her, thereafter quarrel also used to take place with her father and accused Prem Singh. Witness has further deposed that on 09.09.2009 she went to Silai Center at around 1:00 PM and her father was alright and was cleaning the roof as rainy water collected on the roof. The witness has further deposed that she returned back from the center around 3:454PM and saw her father was lying on a cot and bed sheet was on his body. Witness has testified that she gave call to her father but there was no response from him on which she took of the bed sheet from the body of her father but he was not responding on which she felt some suspicious and presumed that he had died and she started weeping. According to her, persons of the locality collected there and their relatives collected at their house and her uncle Jai Singh and his son took her father to Khera Nursing Home. Witness has further deposed that on checking in Khera Nursing Home, he (her father) was declared brought dead and her uncle Surat Singh came from Chandigarh and he got conducted police proceedings. The witness has also deposed that when she returned back from the center she found her brother Prem Singh moving in the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 20 Verandah and his vehicle was parked outside the room of her father. (17) Leading questions were put to the witness by Ld. Addl. PP for the State, wherein the witness has deposed that she does not recollect whether the date of incident was 09.09.2009 or 10.09.2009. She has denied the suggestion that she had told the police that her brother Prem Singh had murdered her father. However, when confronted with portion A to A of statement Ex.PW12/A the above fact was found so recorded. Witness has admitted that after arrival of police, her brother Prem Singh had left the house.
(18) In her cross examination by Ld. Defence Counsel, the witness has deposed that she is 8th pass. She does not recollect the date when her statement was recorded but states that she had told to the police in her statement that her brother Prem Singh caused injury on the head of her father who received stitches. However, when confronted with her statement Ex.PW12/A the above fact was not found so recorded. According to her, her father had expired on 09.09.2009 and his last rites were performed on 10.09.2009. Witness has further deposed that her uncle Surat Singh reached at the house from Chandigarh when her father was brought from Khera Nursing Home. She has deposed that her father was taken to Khera Nursing Home by her uncle Jai Singh and his son. According to the witness, Prem Singh left the house in Qualis vehicle before arrival of her uncle Surat Singh and upto Tehrvi ceremony their relatives and persons of the locality St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 21 used to visit their house and she remained at her house upto the aforesaid ceremonies as she was not married at that time. She is unable to tell the date of Tehrvi of her father. She has also deposed that SHO had called her twothree days from the incident and made inquiries from her. According to her she saw her brother Prem Singh in the police chowki after twothree days of incident. She has denied the suggestion that there were smooth relations between her father and her brother Prem Singh or that there was no property dispute between them.
(19) PW13 Sh. Satish is the real brother of accused Prem Singh and son of the deceased Hoshiyar Singh. He has deposed that they are three brothers and two sisters and accused Prem Singh is his elder brother who was married in the year 1984 and was residing separately in one of the room. According to the witness, his brother Prem Singh had filed a civil suit against his deceased father for share of 100 sq. yards from the said property and used to quarrel with his father almost daily and also used to beat his father. He has testified that in the year 2008 accused Prem Singh gave beatings to his father who also sustained head injuries and it is his brother Prem Singh who had killed his father. According to the witness on the day of incident i.e. on 10.09.2009, he went to Kewal Krishan Ice cream wala for employment between 12:301:00 PM but he did not met him and he waited there and the son of his uncle Rajeev was also with him. The witness has further deposed that some of his family members informed on the mobile phone of Rajeev that his father has been murdered on which he St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 22 along with his brother Rajeev came to their house and found his father lying on a cot and covered with a bed sheet. He has stated that he took off the bed sheet from the face of his father and saw that he was not alive. (20) In his cross examination by Ld. Defence counsel, witness has deposed that he never intervened in the quarrel of his father and his brother Prem Singh. He has deposed that Rajeev received a telephone call at around 3:304:00 PM. Witness has denied the suggestion that there was no property dispute between his father and accused Prem Singh. (21) PW16 Sh. Mool Chand has deposed that he is the President of the Kewal Park Colony and he knew Hoshiar Singh and Prem Singh being the residents of their colony. According to him, frequent quarrel took place between Hoshiar Singh and accused Prem Singh. He has deposed that in the year 2008, date and month he does not remember a quarrel had taken place between Hoshiar Singh and accused Prem Singh and he also went to the Police Station. The witness has testified that due to his intervention a compromise took place and police did not take any action in this regard. According to the witness, Hoshiar Singh was a gentleman. (22) Leading questions were put to the witness by Ld. Addl. for the State, wherein he has admitted that on one occasion there was a state of Manhandling between Hoshiar Singh and accused Prem Singh and that Hoshiar Singh compromised the matter to save his image. Witness has also admitted that he has stated to the police that compromise took place on St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 23 28.12.2008 but has denied the suggestion that accused Prem Singh is a bad element of the area and has voluntarily stated that he is a gentle person (Shareef Aadmi).
(23) In his cross examination by Ld. Defence counsel, the witness has deposed that the distance between his house and house of accused Prem Singh is about fivesix lanes (streets). The witness has further deposed that he is a MCD Contractor having his office in Kewal Park Extension and he used to visit his sites sometimes. Witness has further deposed that no DD entry was recorded at Police Station on 28.12.2008 in respect of the quarrel as there was compromise took place between Hoshiar Singh and accused Prem Singh. Witness has admitted that documents marked PW1/X do not bear his signatures. He has denied the suggestion that no quarrel took place between accused Prem Singh and Hoshiar Singh either on 28.12.2008 or at any time and that he was never called to resolve any dispute nor he visited to the police station.
(24) PW17 Mohit is the brother of the accused Manoj and has deposed that in the year 2009 he was studying and in the summer vacations he used to work in the factory. According to the witness, he was having a mobile phone and he obtained mobile phone connection number 9278453468 on the ID proof of his friend Ashok Kumar. Witness has further deposed that he only used this mobile phone connection number and his brother Manoj (accused) did not use the above said mobile connection number. According to the witness he used to recharge the above said mobile St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 24 phone connection himself. Witness has further deposed that after one or two days of arrest of his brother Manoj police seized his above said mobile phone with the above said SIM card vide memo Ex.PW14/B. He has correctly identified the accused Manoj in the Court and also identified the case property i.e. one mobile phone of make Virgin which is Ex.P10 and one Virgin SIM card which is Ex.P13.
(25) In his cross examination by Ld. Addl. PP for the State, witness has deposed that police recorded his statement but he does not remember the date. He is unable to tell whether his statement was recorded on 23.09.2009 by the Investigating Officer. Witness has denied the suggestion that he had stated to the police in his statement that his brother Manoj also used his above said mobile phone with the above said mobile phone connection or that he used to recharge the above said mobile phone. However, when confronted with his statement Ex.PW17/PA the above fact was found so recorded. Witness has denied the suggestion that he has not deposed true facts before the court as accused Manoj is his real brother. (26) In his cross examination by Ld. Defence counsel, witness has admitted that Investigating Officer did not record statement of Ashok Kumar in his presence. According to the witness, he is not having any ID proof in his name. Witness has admitted that contents of the document Ex.PW14/B was not written in his presence and that police obtained his signatures on a blank paper.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 25 (27) PW18 Ganga Ram is the father of the accused Kamal Kishore and has turned hostile. He has deposed that he had not handed over any mobile phone to the police at any point of time.
(28) Leading questions were put by Ld. Addl. PP for State, wherein the witness has deposed that police did not record his statement on 23.09.2009. He has denied the suggestion that police came at his house on 23.09.2009 and asked about mobile phone of his son Kamal Kishore and he handed over the same to the police. He has admitted his signatures on the document Ex.PW14/A. According to him Kamal Kishore is aged about 24 years at present.
(29) In his cross examination by Ld. Addl. PP for the State, witness has denied the suggestion that police recorded his statement on 23.09.2009. Witness has denied the suggestion that he has stated to the police on 23.09.2009 that police came at his house and asked about mobile phone of his son Kamal Kishore and he handed over the same to the police. When confronted with his statement mark PW18/PA the aforesaid fact was found recorded. Witness has further denied the suggestion that police seized the mobile phone of "Haier" CDMA ESN No. 30947435 with SIM no. 9210887579 of his son Kamal Kishore and sealed the same with the seal of MK and has voluntarily stated that police obtained his signatures on a blank paper. According to the witness he has no knowledge about the mobile phone number 9210887579 which was issued in the name of his son Kamal Kishore by the TATA Indicom on the basis of Election he Card. Witness St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 26 has denied the suggestion that he was deposing falsely to save his son Kamal Kishore. Witness has further denied the suggestion that the same mobile phone with connection number was seized by the police and thereafter he put his signature on the seizure memo. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted. (30) PW20 Sh. Jai Singh is the younger brother of the deceased Hoshiyar Singh and uncle / chacha of the accused Prem Singh whom he has correctly identified in the Court. According to him a quarrel took place between accused Prem Singh and Hoshiyar Singh about the property and Prem Singh gave beatings to his father Hoshiyar Singh on many occasions and due to this reason he also tried to make Prem Singh understand. Witness has further deposed that on 10.09.2009 at about 2:30 PM he was present on the balcony (chaja) of his house when he saw that his nephew accused Prem Singh talking with two boys just in front of the room of his brother Hoshiyar Singh near the vehicle, Qualis of Prem Singh and after some time Prem Singh boarded in his Qualis vehicle and other two boys who were talking with Prem Singh entered in the room of his brother Hoshiyar Singh. According to the witness, he was thinking that those boys came there for tenancy purpose and there was rain so he went inside his house. He has testified that at about 4:15 PM he heard the cries of his niece Kavita D/o Hoshiyar Singh on which he came in the gali and saw that his brother Hoshiyar Singh was lying on the cot in his room. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 27 The witness has deposed that he along with Surat Singh and other persons took Hoshiyar Singh to Dr. Khera Nursing home where Hoshiyar Singh was declared dead. According to him, thereafter they returned back to the house and dead body of Hoshiyar Singh was kept on the same cot and they made call at 100 number and saw that Prem Singh, accused ran away from there. The witness has further testified that PCR officials as well as local police came there and police from the crime team official also reached there who inspected the dead body of Hoshiyar Singh and also took the photographs of the dead body. He has proved that the police seized the bed sheet vide seizure memo Ex.PW1/B and also seized the baniyan & towel vide seizure memo Ex.PW1/C. The witness has also deposed that on the next day, postmortem on the dead body was conducted and he identified the dead body of his brother Hoshiyar Singh vide Ex.PW20/A. According to him after postmortem dead body was handed over to them vide Ex.PW1/F. He has correctly identified the accused Kamal Kishore and Manoj Kumar as the persons who were talking with accused Prem Singh and entered in the room of Hoshiyar Singh. He has also identified the case property i.e. one bed sheet having blood stains in soaked condition which bed sheet is Ex.P1, one towel and one baniyan having blood stains in soaked condition which towel is Ex.P2 and baniyan is Ex.P3.
(31) In his cross examination by Ld. Defence Counsel, the witness has deposed that PCR police reached at the spot at about 5:00 PM. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 28 According to the witness they took Hoshiyar Singh to Khera Nursing home before the arrival of the police officials. He has explained that Surat Singh took Hoshiyar Singh to Khera Nursing home on his shoulder and he, Rattan Singh, Rajeev, Kanwar Singh and other persons also accompanied Hoshiyar Singh to Khera Nursing Home. According to the witness he had also assisted Surat Singh while lifting Hoshiyar Singh and the clothes of Surat Singh also got soaked with blood but his clothes were not soiled because it was Surat Singh who was actually lifted Hoshiyar Singh and he only helped him with his hands. Witness has further deposed that Khera Nursing Home is hardly 300 feet from the spot and the doctor met them at Khera Nursing Home but he did not make any inquiries from them regarding their name and other details, nor he filled up any form and has voluntarily explained that he (doctor) simply saw the body and declared him dead. He has also deposed that they returned with the body within ten minutes and the PCR came after about half an hour of their return and after 1015 minutes police of Police Station Adarsh Nagar also reached at the spot of arrival of police of PCR. According to him after the local police reached the spot, they took the body to BJRM hospital where the body was kept in the mortuary but they did not accompany the body at that time and has voluntarily explained that he (Hoshiyar Singh) had already died by then and there was no point. Witness has also deposed that the local police did not came at the spot on that day from BJRM hospital. The witness has testified that after Prem Singh had run away when he made a PCR call, he again saw him thereafter St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 29 at the police station but he does not recollect the date. According to him in the police station he only saw Prem Singh but not the other accused. He is unable to tell the names of the persons whose statements were recorded by the police and has voluntarily explained that his brother Surat Singh had got everything recorded. Witness has denied the suggestion that he was not present at the spot at the time of incident and it is for this reason that the police did not record his statement. He has also deposed that his son Kanwar Singh was also present at the spot but his statement was also not recorded by the police. The witness has further deposed that the police took the blood stained clothes and the blood stained chaddar on the same day from the spot after the body of his brother had removed from the spot but the charpai was not removed and has voluntarily explained that it was still lying in the house in a blood stained condition. According to the witness his statement was recorded after about twothree days. He has admitted that after the body of his brother was shifted to the hospital by the police they met him only after two days and recorded his statement and has voluntarily explained that in between they had also come but they did not meet him and only met his brother. Witness has admitted that his brother Surat Singh is the parokar of the present case. He has denied the suggestion that he has deposed on the basis of what has been told and tutored by Surat Singh. According to the witness he had told the police, the description of the accused, while giving his statement and has voluntarily explained that he told them that one boy was fair and the other was having a whitish St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 30 complexion. However, when confronted with statement Ex.PW20/DX1 the description of the assailants were not found mentioned. Witness has further deposed that the distance of the main gate of the house to the room where the incident had taken place is hardly 1012 feet and has voluntarily added that this room is having a separate entry. According to him the room where the incident took place is having two doors and one window. He has also testified that his house is 40 feet away from the room where the incident had taken place. The witness has further deposed that he has retired from Ganesh Flour Mill since the year 2002 and he is not doing anything. Witness has also deposed that at the time of the incident there were about ten rooms but he is unable to tell the details of the tenant and has voluntarily explained that tenants keep coming and going but in so far as he recollect, there were around 78 tenants at that time. According to the witness, he had never seen both the accused along with Prem Singh after the incident and has voluntarily explained that when he identified them in the court during their peshi, they were not with Prem Singh. The witness has also explained that he was not aware the names of the accused initially and therefore he did not tell their names prior to 16.09.2009. Witness has further deposed that on 16.09.2009 when the accused came to their house, their faces were not muffled but he is unable to tell the exact time when they had come and has voluntarily explained that it was evening at that time. According to the witness it must be around 4:005:00 PM at that time and he was at home when they were brought and police did not call him but when they were St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 31 brought to the house he of his own accompanied them. Witness has further deposed that the police officials were in the vehicle but he is unable to tell the details of the vehicle and the room in which the incident had taken place was sealed by the police by putting the lock whose keys was with them and therefore it was not under use. He has denied the suggestion that the room in question had not been sealed or locked by the police and was under active use or that he had not seen the incident or that he has never identified the accused or that he is a planted witness.
(32) Witness has further deposed that his deceased brother Hoshiyar Singh is having three sons namely Prem Singh, Satish & Narender and two daughters namely Kavita and Anita out of which Anita was married at the time of the incident but Kavita was married later. According to the witness, his deceased brother was having a plot measuring 200 square yards at Mukundpur, Delhi and had another plot of 100 square yards plot at Mukundpur which he had sold. Witness has denied the suggestion that the plot at Mukundpur is presently valuing about 1.5 crore and has voluntarily explained that it is much less. According to him the plot of 200 sq. yards had been sold after the death of Hoshiyar Singh and is not with Satish and has voluntarily explained that the marriage of Kavita, Satish and Narender was performed from the sale proceeds received by the sale of 200 square yards. Witness has admitted that Prem Singh had never got instituted any suit in the court with regard to the plot of 200 square yards claiming his share in the same. He has denied the suggestion that this plot was built up St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 32 and was given on rent or the rent of the same was being received by Satish and has voluntarily stated that it was a vacant plot. According to him the builtup house at Kewal Park is around 200 square yards and not 220 yards. He has admitted that Prithi Singh is the maternal uncle of accused Prem Singh/ sala of Hoshiyar Singh. Witness has also deposed that his brother Hoshiyar Singh purchased the builtup house at Kewal Park from Om Parkash Gupta who was a property dealer. Witness has admitted that Prem Singh used to reside in only one room in the said premises. He has denied the suggestion that there is no litigation pertaining to the property of Kewal Park where the accused Prem Singh has claimed his share and has voluntarily explained that civil litigation of the said property is pending which was filed by Prem Singh. Witness has also denied the suggestion that he is making a false deposition in this regard. According to him the property at B43, Kewal Park had been let out to the tenants, the rent of the same being received by Satish and he is not aware about the rent of the same. Witness has denied the suggestion that there was no dispute between Prem Singh and his father with regard to any claim for the share in the property by the accused Prem Singh. According to him, there are built up houses in front of the place of occurrence. He has admitted that vehicles are plying on the road in front of the house No. B43 there being a pucca road in front of house. The witness has denied the suggestion that due to the noise of vehicles it is difficult to hear the voices inside the house. According to him the Investigating Officer in his presence did not record the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 33 statement of the doctor who attended his deceased brother at Khera Nursing home. He has testified that police prepared the site plan in his presence but he does not remember whether he had put his signatures on the same or not. The witness has further deposed that the police seized the Qualis in his presence but he does not remember whether any seizure memo was prepared in this regard or not. He has denied the suggestion that the accused Prem Singh was having cordial relationship with his deceased father. Witness has admitted that family members of Prem Singh are still residing in the same room. He has denied the suggestion that in order to usurp the property of Kewal Park and Mukundpur, they have falsely implicated Prem Singh in the present case after killing Hoshiyar Singh themselves. Witness has denied the suggestion that accused Prem Singh is innocent or that he has been falsely implicated in the present case with a view to grab the huge property which the deceased had purchased during his life time having high commercial value. Witness has further deposed that there is one house situated between his house and house No. B43 and there is one another house on the right side of the B43 but he is not aware the name of the owner of that house. Witness has admitted that on the said day of the incident there was very heavy rainy since morning. Witness has also denied the suggestion that their brother had been killed by tenants or any other family members or that the accused has been falsely implicated because they wanted to shift the blame on others.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 34 (33) PW21 Naresh Kumar @ Bandhu is a neighbour of the deceased who has deposed that he knew Hoshiar Singh being his neighbour. According to the witness he is having a business of wood in cremation ground Gopal Nagar, Azadpur, Delhi. The witness has deposed that he knew accused Prem Singh S/o Hoshiar Singh whom the witness has correctly identified in the court. According to him there were frequent quarrels between accused Prem Singh and deceased Hoshiar Singh on the issue of property which took place several times and accused Prem Singh used to abuse his father and also used to give beating him and demanded the property in his favour. He has testified that on 10.09.2009 at about 3.15PM he was going to his shop situated at F27,Gopal Nagar from his house and it was raining when he saw that accused Prem Singh was present with his vehicle Toyota Qualis in front of the room of deceased Hoshiar Singh and accused Prem Singh was pressing accelerator of his vehicle continuously and making the sound of vehicle loud (gadi ko race de raha tha). The witness has further deposed that he asked him about the reason for the same on which he (Prem Singh) replied that his vehicle was not starting and meanwhile he saw two young boys coming out from the room of his father Hoshiar Singh. He has also deposed that he asked him (Prem Singh) about those boys on which he replied that they were the tenants and thereafter he went towards his shop at Gopal Nagar and in the evening time he came to know that Hoshiar Singh St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 35 was murdered. He has testified that on 16.09.2009 he was called by the police at the house of Hoshiar Singh and when he went there he saw that two persons namely Manoj and Kamal were in the custody of police and police told him that the said persons had committed the murder of Hoshiar Singh and he identified both the persons as the persons who entered in the room of Hoshiar Singh. The witness has further deposed that at the instance of accused Kamal one iron rod looking like "Chheni" was recovered from the corner of the room of Hoshiar Singh and police sealed the iron rod in a cloth pullanda with the seal of MK. Witness has further deposed that at the instance of accused Manoj one sweater was recovered from the garbage outside the gate of the house and the same was also sealed in a cloth pullanda by the police with the seal of MK and accused Prem Singh present in the court and witness has correctly identified accused and accused Manoj and Kamal are not present in the court today.
(34) In his cross examination by the Ld. Addl. PP for the State, the witness has admitted that police examined him on 10.09.2009 and on 16.09.2009 and recorded his statement on the respective dates. He has also admitted that on 16.09.2009 he had stated to the police that the Investigating Officer brought Manoj and Kamal Kishore at the spot and he identified both persons Manoj and Kamal Kishore when they came out from the room of deceased Hoshiar Singh on 10.09.2009 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 36 where accused Prem Singh was giving race to his vehicle. The accused Manoj and Kamal Kishore were shown to the witness and after seeing the both accused carefully witness explained that at the time of incident the persons who came out of the room of Hoshiar Singh were thin and the accused has now gained weight. He has correctly identified the accused Manoj and Kamal Kishore by pointing out towards them by their names. (35) He has correctly identified the case property i.e. one blue coloured sweater as recovered at the instance of accused Manoj which is Ex.P4 and one iron rod looking like a screw driver and Chheni as the same which was recovered at the instance of accused Kamal Kishore which is Ex.P8.
(36) In his cross examination by Ld. Defence counsel, the witness has deposed that he used to go out of his house for his job at around 8.00AM in the morning and once he left his house in the morning he used to return in the night at around 8.00PM and has voluntarily explained that during the daytime he also used to come to his house for taking meals. According to the witness he was residing at Kewal Park since his childhood and there were many tenants in the house of Prem Singh and he used to talk to the tenants of Prem Singh. He is unable to tell if Prem Singh ever filed any litigation against his father regarding any property dispute. Witness has further deposed that none of the tenants, neighbors and Hoshiyar Singh ever told him that if there was any property dispute between Prem Singh and Hoshiyar Singh. He has admitted that he used to take the lunch between St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 37 1.00 to 2.00PM and he used to reach back to his job at F27, Gopal Nagar, Delhi at about 2.00PM. According to the witness he used to hear from others that there was quarrel between Prem Singh and Hoshiar Singh. Witness has admitted that in his presence no quarrel or beatings took place between Hoshiar Singh and Prem Singh. He has also admitted that accused Prem Singh never raised any demand of property from Hoshiyar Singh in his presence. He has denied the suggestion that accused Prem Singh did not have any vehicle Toyota Qualis or that he was not pressing accelerator of the same continuously or that Prem Singh was making the sound of vehicle loud or that Prem Singh did not reply that vehicle was not starting. According to the witness he had seen accused Kamal Kishore and Manoj in the police station on 12.09.2009 for the first time at about 5.00 or 6.00 PM when he was called by the police of Police Station Adarsh Nagar in the police station. He has also deposed that on 16.09.2009 when he had reached the spot then he found that the police and the accused Kamal Kishore and Manoj Kumar were present there on that day. According to him, on 16.09.2009 when he reached the place of incident the police persons and the accused person were standing in the room in which the incident had taken place. Witness has further deposed that the police did not prepare site plan of the place of recovery at the spot. According to him, police did not ask to any tenant to join the investigation on that day in his presence. He has also deposed that he was not known to St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 38 accused Manoj and Kamal Kishore prior to the incident. According to him, he has not given the description of the accused Kamal Kishore and Manoj Kumar. Witness has admitted that the document Ex.PW1/O and Ex.PW1/P do not bear his signatures. He has denied the suggestion that no recovery was taken place in his presence or that he was away to his job at F27 Gopal Nagar, Delhi on the relevant date and time of the incident. Witness has denied the suggestion that he did not see any accused person on the day of incident or that he did not see the accused Kamal Kishore and Manoj Kumar while coming or going to the place of incident.
(37) PW23 Vijender Singh has deposed that he is the registered owner of Qualis bearing No. DL4CL6693 which vehicle was lying detained in the Police Station Adarsh Nagar. He has further deposed that he moved an application in the court for taking the vehicle on superdari which application is Ex.PW23/A; photocopy of RC of the said vehicle which is Ex.PW23/B; the Superdarinama is Ex.PW23/C and the vehicle is Ex.PW23/P1. The witness has testified that the said vehicle was purchased by his father in his name. According to the witness his Mausaji namely Prem Singh who was without job at that particular time, therefore his father gave the said vehicle to his Mausa to drive and his mausa Prem Singh used to give 50% of his profit to his father. He has correctly identified the accused Prem Singh in the Court.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 39 (38) In his cross examination by Ld. Defence counsel, the witness has deposed that there was no agreement in writing between his mausaji and his father regarding the share of 50% in the earning or giving the vehicle to Prem Singh to ply. According to the witness, the said vehicle was a private vehicle and not commercial. Witness has further deposed that no permit or fitness certificate was ever issued by any authority to ply this vehicle. He is not aware the name or address of the person from whom his father had purchased the said vehicle. He has denied the suggestion that the said vehicle was not given for plying or for any other purpose. According to the witness police had not recorded his statement in this case. He has admitted that he never stated to the police that the said vehicle was given to his mausa Prem Singh for plying. The witness has also admitted that he never told to the police that his mausa Prem Singh used to give 50% of his profit to his father or that Prem Singh was not having any job and therefore the said vehicle was given to him for plying. According to the witness, he had gone to the house of Prem Singh many times where several tenants were residing and deceased Hoshiar Singh was living in the same house. The witness has further deposed that in his presence no quarrel ever took place between Prem Singh and his father Sh. Hoshiar Singh. He has admitted that none of the tenants told him that there used to be a quarrel between Prem Singh and Hoshiar Singh and that Hoshiar Singh never told him that his son Prem Singh used to quarrel with him. Witness has admitted that he also never heard about any quarrel between Hoshiar Singh and Prem Singh from any St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 40 relatives. He has further admitted that he know it very well that in the house number B43, Kewal Park Adarsh Nagar, Delhi, a portion of 100 Sq. Yards is the portion of Prem Singh to which he is the owner. Witness has admitted that he had never heard or seen any quarrel between Hoshiar Singh and Prem Singh regarding any moveable or immovable property. Witness has denied the suggestion that the said vehicle was never given to his mausa for plying nor any profit was agreed to be paid by Prem Singh to his father. Witness has denied the suggestion that the vehicle was throughout within his possession since the date of its purchase.
(39) PW24 Ashok Kumar has deposed that he is a Driver by profession and about four years back his friend Mohit asked him to provide his identity proof as he was in need of a mobile connection on which he gave him his identify proof for the mobile connection. According to him, the family of Mohit was comprising of his parents, brother and sister and one of his brother is Manoj whom he has correctly identified in the Court. He has further deposed that he had given his identity proof i.e. photostate copy of the driving licence which is Mark PW24/A to Mohit.
(40) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he does not have the original of Mark PW24/A nor has he brought the same. He has admitted that he was not aware that Mohit used the said identity proof Mark PW24/A for the purpose of St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 41 purchasing mobile connection. He has denied the suggestion that he never handed over his any kind of ID proof or Mark PW24/A to Mohit for the said purpose.
(41) The witness was reexamined by the Ld. Addl. PP for State as the witness during cross examination has stated that he was not having any any knowledge about mobile connection taken by Mohit but in statement under Section 161 Cr. P. C. it has been mentioned that he had provided phone to Mohit on his ID. The witness has denied the suggestion that he provided phone to Mohit on his ID. According to him the photostate copy of Customer Application Form marked PW24/PX bears his signatures and his photograph. He has further deposed that he did not fill up mark PW24/PX nor he put his signatures on it. When asked as to why he earlier deposed that mark PW24/PX bear his signature, the witness has deposed that he could not see the document mark PW24/PX from closely and now he rectified the same.
(42) PW25 Om Dutt Bharadwaj is a resident of the same area who has deposed that he knew accused Prem Singh (whom the witness has correctly identified in the Court) and also his father namely Hoshiyar Singh. According to the witness, he does not remember the date but about two month prior to the murder of Hoshiyar Singh, he was called by Mool Chand at Police Station Adarsh Nagar and there a compromise arrived between Hoshiyar Singh and Prem Singh though Hoshiyar Singh was St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 42 not intending to compromise but they made him understand. He has testified that Prem Singh apologize Hoshiyar Singh and the compromise was pen down and the seizure memo of the compromise is Ex.PW1/Q. He has clarified that the said compromise took place as Maar Pitai (beatings) took place between Prem Singh and Hoshiyar Singh and he saw bandage over the head of Hoshiyar Singh.
(43) In his cross examination by Ld. Defence counsel, witness has deposed that police never recorded his statement in this case. According to him, the house of the accused Prem Singh and Hoshiyar Singh is situated on Aggarsen Marg, Kewal Park, Delhi whereas his house is situated at Tagore Marg. The witness has testified that his house is about 50 meters away from the house of accused Prem Singh and has voluntarily explained that his house is third house from the park while the house of accused is situated near Kooradaan ahead of the park. According to him the house of the accused Prem Singh and his house fall in different galis. He has admitted that in his presence no quarrel ever took place between Hoshiyar Singh and Prem Singh. Witness has also admitted that in his presence no beatings ever took place between Prem Singh and Hoshiyar Singh. He has also deposed that he never called the police nor he told to the police about any incident and no MLC of Hoshiyar Singh was ever prepared in his presence. According to him, Mool Chand is the Pradhan of the RWA. He has testified that he is 10th class pass and can read and write Hindi and can also read St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 43 English but he cannot understand the meaning of the same. Witness has admitted that the document Mark PW1/X does not bear his signatures nor it bear the seal of any police station. According to the witness to his knowledge at the relevant time one or two tenants used to reside in the house of Prem Singh. He has denied the suggestion that no quarrel or beatings ever took place between Hoshiyar Singh and Prem Singh as stated by him in his examination in chief or that there was no dispute between Hoshiyar Singh and Prem Singh. Witness has denied the suggestion that he never went to the Police Station at any point of time as claimed by him in his examination in chief or that since no quarrel or beatings ever took place between Hoshiyar Singh and Prem Singh, therefore there was no occasion of any compromise between them.
(44) PW26 Raj Pal has deposed that in the year 2009 he used to drive vehicle at Spring Dales School, South Campus, Dhaula Kuan, Delhi and he knew the accused Prem Singh whom the witness has correctly identified in the Court who used to drive TaxiQualis. According to him on 10.9.2009 he had to go Balaji and he made him a call to the accused at about 4:00 - 4:15 PM at mobile no. 9818908444 on which the accused Prem Singh picked up the phone and told him that he was in need of Taxi but the accused told him that Taxi was not spare. The witness has testified that thereafter Prem Singh disconnected the phone immediately (harbarahat mein phone kaat diya). According to him police met him and St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 44 made inquiries him about Prem Singh and recorded his statement. Witness has further deposed that earlier to the said date he saw the accused Prem Singh in the year 2008 as he came to his house while he was searching for some address.
(45) In his cross examination by Ld. Defence counsel, witness has deposed that he is driving the motor vehicles for the last about 1015 years. According to him, the accused Prem Singh did not run any Transport Company or Travel Agency. The witness has testified that he made a call on the mobile phone of accused from his phone and has voluntarily explained that his mobile phone number is not presently working but he has the SIM of that phone number. He does not remember the said mobile number nor did he tell his phone number to the police in his statement. Witness has denied the suggestion that accused Prem Singh was not plying the Qualis at the relevant date and time as stated by him in his examination in chief or that he never contacted accused Prem Singh for hiring any taxi. Witness has denied the suggestion that mobile No. 9818908444 does not belong to accused Prem Singh or that he never used the said mobile number. (46) PW27 Surat Singh is the cobrother/ Sandhu of the accused Prem Singh and has deposed that he used to work in DDA and Vijender is his son. He has testified that at about fourfive years he had purchased one Toyota Qualis Jeep No. DL 4C R 6693 in the name of his son Vijender against cash and his cobrother (Sadoo) Prem Singh who used to reside in Kewal Park was a Driver. According to him since Prem Singh was not St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 45 doing any job at particular time therefore he gave the aforesaid vehicle to Prem Singh to drive and the profit / earning used to divided between him and Prem Singh into equal share i.e. 50% to each of them. The witness has also deposed that he is illiterate and he is not aware his mobile number but states the said mobile phone is still with him which was used by him in the year 2009. He has further testified that on the day when Hoshiyar Singh expired, he received a call from Prem Singh who told him that Hoshiyar Singh had expired and he should reach home immediately. The witness has also deposed that since he was on duty at that time therefore he told him (Prem Singh) that he could reach house after 5.00PM. He does not remember the date and month but states that it was in the year 2009 in the monsoon season and the said phone call was received by him at about 4.004.15 PM and after seeking permission from his Boss he left for his house. Witness has further deposed that there was crowd at the house of Prem Singh but Prem Singh was not present there. According to the witness, he is not aware how the death of Hoshiyar Singh occurred. The witness has also deposed that he did not see any estranged relations between Hoshiyar Singh and Prem Singh. He has testified that he was not using any other phone except the mobile number which he is still using. He has further deposed that in his presence police did not carry out any proceeding nor did take into possession any thing.
(47) In his cross examination by Ld. Addl. PP for the State witness has admitted that on 23.09.2009 the Investigating Officer seized the mobile St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 46 phone bearing no. 9818908444 which was produced before police by Rajender @ Babu S/o Prem Singh and police seized the mobile phone while preparing seizure memo which is Mark PW1/X3 which bear his signatures at point X. According to the witness police did not seize the phone being used by him. He is unable to tell if police had seized the phone bearing no. 9818908444 which was being used by Prem Singh. He has admitted that seizure memo Ex.PW27/PX1 bear his signatures at point X. (48) This Court had put a specific question to the witness as to when he put his signatures on the seizure memo, the witness casually replied that he does not remember and he might have signed the same (Karwa liye honge, mujhe yaad nahin).
(49) Witness has denied the suggestion that telephone number 9818908444 had been seized in his presence by the police and it is for this reason that the seizure memo Ex.PW27/PX1 bear his signatures at point X. Witness has further denied the suggestion that he has been won over by accused Prem Singh and it is for this reason that he was not disclosing the complete facts of the case. Witness has also denied the suggestion that he had taken the said vehicle on installment or that he told the same to Investigating Officer. He has further denied the suggestion that he had told to the Investigating Officer in his statement that Prem Singh was having confrontation with his father over property or that the said phone was seized by the Investigating Officer in his presence after putting seal on the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 47 pullanda. The witness has been confronted with the statement Ex.PW27/PX2 where the above facts were found mentioned. Witness has further denied the suggestion that he has deposed falsely that he was not having any phone except the phone number which being used by him till today as the phone number 9818908444 was on his name and the same was being used by accused Prem Singh in the year 2009. The phone number of the witness was inquired from Vijender son of the witness who informed that the number of the mobile used by his father as on date is 9971214217. (50) In his cross examination by Ld. Defence counsel, witness has deposed that the Qualis was not a commercial vehicle and was being used by them for their personal use. The witness has also deposed that he never applied for permit or fitness certificate for Qualis nor they obtained the same. He has admitted that accused Prem Singh was running any traveling agency. Witness has also deposed that there was no agreement between himself, his son Vijender and accused Prem Singh regarding 50% share of profit from the vehicle. He has denied the suggestion that he never gave the Qualis to accused Prem Singh for plying or that it is for the above reason no share of profit was ever given by accused Prem Singh either to him or to his son. Witness has denied the suggestion that Qualis was through out within their possession since the date of its purchase. He has admitted that he never saw or heard about any quarrel, beating or any property dispute between Prem Singh and his father Hoshiyar Singh. He has denied the suggestion that the police falsely impounded the said Qualis after taking St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 48 from their possession and booked the same in the present case. (51) PW28 Ram Phool is the father of the accused Manoj who has deposed that in the month of November, 2009, date he does not recollect, the police had come to his house and made inquiry about his son Manoj. According to the witness, it was in the evening when Manoj was sleeping and he told the police that Manoj was sleeping on which the police told him that it was in connection with some Larai - Jhagra and told him to come to the police station later.
(52) Ld. Addl. PP for the State put leading question to the witness wherein the witness has admitted that the police had come to their house on 23.9.2009. He has denied the suggestion that police had made inquiries from him regarding telephone number 9278455468 or that he informed them that it was belonging to his younger son Mohit but Manoj was using the same.
(53) The witness was found resiling from his earlier statement given to the police and hence it was crossexamined by the Ld. Addl. PP for the State wherein he has deposed that he does not keep any mobile phone and only his son Mohit was having a mobile phone but he does not recollect his number. He has denied the suggestion that his younger son Mohit was having a mobile no. 9278455468 or that the said mobile number was also being used by his other son Manoj. According to the witness his younger son Mohit is doing his graduation (BA). He has denied the suggestion that his son Mohit had obtained the SIM 9278455468 on their address and the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 49 same was being used by his other son Manoj and he has deposed falsely only to save his son from penal consequences. He has also denied the suggestion that the statement Ex.PW28/PX1 was recorded by the police on his dictation or that the contents thereof are correctly entered by the Investigating Officer.
Witnesses of Medical Record:
(54) PW10 Dr. K. Goyal has deposed that on 11.09.2009 he was working as CMO at BJRM Hospital and on that day he conducted the Postmortem on the dead body of one Hoshiar Singh S/o Late Sh. Raghu Ram aged about 67 years, male brought by the police official sent by Inspector Mahavir Kaushik of Police Station Adarsh Nagar with alleged history of found dead at B43, Kewal Park, Azadpur, vide PM report Ex.PW10/A. According to the witness, as per the Postmortem Report all injuries were antemortem in nature and injury no. 1 to 4 were caused by blunt force impact; injury no.5 was caused by pressure over mouth consistently by grip to ward off cries; injury no.6 was caused by sharp edged weapon and injury no.7 was caused by sharp, cutting penetrating weapon. Witness has further deposed that Chest, liver and pelvic injuries were caused by blunt force impact and all injuries were collectively consistent with assault. The witness has proved that the cause of death in this case is combined effect of shock and hemorrhage due to chest, liver St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 50 and pelvic injuries and vasovegal shock due to testicular injuries and are collectively sufficient to cause death in ordinary course of nature.
Witness has further proved that time since death was about 2324 hours and the clothes and blood sample of the deceased in gauze piece were preserved, sealed and handed over to the police officials.
(55) He has proved that on 23.09.2009 Inspector/ATO Adarsh Nagar Inspector Mahavir Kaushik tendered an application regarding opinion of weapon of offence and produced one sealed packet inscription of which was MK. According to the witness on opening the packet it was found to contain one iron rod in the form of long chisel about 44.5 cm long, circumferentially partly curved, partly flat in its anterior half, round in its rear half, rear end was little wide and head like, front end was tapered into sharp flat end about 0.9 cm wide, circumference was about 3.4 cm, the rod was dark brownish and blackish, rusted at places with few reddish stains at places, the front sharp end was little bright having few reddish stains. The witness has proved having opined that the injuries no. 6 and 7 mentioned in postmortem report Ex.PW10/A are possible by this weapon or similar such type of other weapon. He has testified that the weapon was resealed along with police seal with the seal of KG and handed over to Police Investigating Officer Inspector Mahabir Kaushik along with sample seal and his detailed opinion alongwith the sketch of rod is Ex.PW10/B. He has also proved the request of the Investigating Officer for seeking opinion which is Ex.PW10/C and St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 51 his endorsement at point B to B. He has correctly identified the case property i.e. one iron rod as the same rod which was examined by him which is Ex.P8.
(56) In his cross examination by Ld. Defence counsel, the witness has deposed that injuries no.6 and 7 as opined by him are possible from the sharp flat edge of Ex.P8 (the sharp flat edge is shown at mark X on Ex.PW10/B). According to him there is also every possibility of blood coming out from injuries if caused by Ex.P8 from the sharp flat edge and there is possibility of blood on the point X on Ex.P8 when blood came out from the injuries if caused by Ex.P8.
(57) During the crossexamination of the witness a suggestion was put to him by the Ld. Defence Counsels that the weapon Ex.P8 i.e. rod was not used for causing injuries No. 6 and 7 to the deceased to which the Ld. Addl. PP for the State has objected since the witness had conducted the postmortem and gave opinion regarding possibility of causing injuries by the weapon and he was not the witness to answer that the said weapon was not used. The said objection was sustained as the doctor can only inform after observing the nature of injuries as to whether they were caused by such like weapon or not and cannot tell if the injuries were caused by this weapon.
(58) According to the witness at the time of examination he observed few reddish stains at places and also at front sharp ends of the rod and he St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 52 had mentioned about it in his report Ex.PW10/B. FSL Expert:
(59) PW22 Sh. Indresh Kumar Mishra Sr. Scientific Officer (Biology) has deposed that on 29.09.2009 five sealed cloth parcels and one sealed envelop out of which parcel no.1 to 3 were sealed with the seal of MK and parcel No. 4 to 5 and sealed envelop i.e. Parcel no.6 were sealed with the seal of KG BJRM HOSPITAL MORTUARY were received at the office of FSL, Rohini, Delhi and the exhibits were marked to him for examination. According to him after examination he prepared his detailed report bearing no. FSL2009/B3998 dated 11.03.2010 and serological report dated 11.03.2010 which are Ex.PW22/A and Ex.PW22/B. He has proved that as per his examination blood was detected on Ex.1, 2a, 2b, 3, 4a, 4b, 4c, 5 and 6 and Blood Group B was detected on bed sheet, towel, shirt, pant, underwear and blood stained gauze cloth piece as detailed in the Ex.PW22/A and Ex.PW22/B. According to him, after examination remnants of the exhibits were sealed with the seal of IKM, FSL DELHI and were sent back to SHO Police Station Adarsh Nagar through forwarding letter of the Director, FSL vide Ex.PW22/C. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted and hence his testimony has gone uncontroverted.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 53
Nodal Officers:
(60) PW7 Sh. Gaganjit Singh Sidhu Nodal Officer from Tata Teleservices Ltd. has brought the customer application form of mobile No. 9210887579 which was alloted to Kamal Kishore S/o Ganga Ram, R/o 380 near Nala Wali Gali, Nehru Enclave, Village Alipur, Delhi. He has proved the Customer Application Form which is Ex.PW7/A, election identity card in support of the address which is Ex.PW7/B and call details of the said number from 08.09.2009 to 11.09.2009 which is Ex.PW7/C. He has also brought the customer application form of mobile No. 9278453468 which was alloted to Ashok Kumar S/o Sh. Krishan Kumar, R/o A54, Subhash Nagar, Kanpur, UP having local address House No. 2044, Alipur, Godhi, Delhi36 which customer application form is Ex.PW7/D; copy of driving licence in support of the address which is Ex.PW7/E and the call details of the said number from 07.09.2009 to 11.09.2009 which are Ex.PW7/F running into two pages printed on both side. He has placed on record the certificate under Section 65B of Indian Evidence Act which is Ex.PW7/G and the cell ID chart of the aforesaid numbers which is Ex.PW7/H running into 12 pages printed on both sides. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(61) PW8 Sh. Tarun Khurana Nodal Officer from Bhari Airtel Ltd.
has brought the customer application form of mobile No. 9818908444 which was allotted to Surat Singh S/o Hari Singh, R/o 373, Nirankari Colony St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 54 Delhi which customer application form is Ex.PW8/A; copy of the election identity card in support of the address which is Ex.PW8/B and the call details of the said number from 07.09.2009 to 10.09.2009 which is Ex.PW8/C running into two pages. Witness has also proved the certificate under Section 65B of Indian Evidence Act which is Ex.PW8/D and the Cell ID Chart which is Ex.PW8/E. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same. Police witnesses:
(62) PW2 SI Devender is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the Crime Team Report which is Ex.PW2/A. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(63) PW3 Ct. Vipin Kumar is a also a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the exhibits from MHCM on 29.9.2009 and deposited the same at FSL Rohini. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.
(64) PW4 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW4/1 (as per the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 55 provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW4/A. (65) In his cross examination by Ld. Defence counsel, witness has deposed that he was told by the complainant that all the ten rooms are part of B43 and there is entry of room marked A towards open space which is mentioned in the site plan. He does not remember whether there was a chaja on the front side of the house B43. According to the witness he had prepared the scaled site plan of the ground floor therefore he did not show the chaja and the said house was only single story and he was called at the spot by Inspector Mahavir Kaushik at about 11:30 AM. He also does not recollect whether he made ravangi or wapsi in the police station and normally they used to make departure and arrival entry in the police station and has voluntarily explained that some time they do not make the said entry.
(66) PW5 HC Prahlad Singh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entries in register no. 19 copies of which are Ex.PW5/A1 to Ex.PW5/A7 and entries in register no. 21 vide no. 113/21/09 copy of which is Ex.PW5/B. He has been crossexamined by the Ld. Defence Counsels but nothing much has come out of the same.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 56
(67) PW6 SI (Retd.) Om Prakash is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having recorded the FIR of this case copy of which is Ex.PW6/A and his endorsement on rukka which is Ex.PW6/B. He has been cross examined by the Ld. Defence Counsels but nothing much has come out of the same.
(68) PW14 HC Raghuvir Singh has deposed that on 13.09.2009 he was posted as Head constable at Police Station Adarsh Nagar and on that day he joined investigations of the present case with Inspector Mahavir Kaushik when he accompanied the Investigating Officer to place of incident i.e. B43, Kewal Park along with accused Prem Singh whom the witness has correctly identified in the Court. According to him accused Prem Singh got recovered a lathi in a kabar in the corner of the room and the length of the said lathi was around 5 feet 3 inches. He has proved that a pullanda was prepared of the said lathi and same was sealed with the seal of MK and was taken into possession vide seizure memo Ex.PW1/N after which they came back to the police station. The witness has further deposed that on 23.09.2009 he again join the investigations of the present case along with Investigating Officer and they went o B43, Kewal Park for investigations of the present case. He has testified that Rajender @ Babu S/o Prem Singh met them who handed over a mobile phone make TATA C157 without St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 57 SIM on which the said mobile phone was converted into a pullanda and was taken into possession vide seizure memo Ex.PW1/X3. According to him thereafter they went to Alipur where Ganga Singh met them and a mobile phone make HAIER was also seized from him vide seizure memo Ex.PW14/A and the SIM number of the said mobile phone was 9210887579. Witness has further deposed that thereafter they went to the house of Ram Phool where Mohit met them who also handed over one mobile phone make VIRGIN to the Investigating Officer who sealed the same with the seal of MK and seized through seizure memo Ex.PW14/B. He has testified that the SIM number of the said mobile phone was 9278453468.
(69) Witness has also correctly identified the case property i.e. one lathi as the same which was got recovered by accused Prem Singh which is Ex.P9; mobile phone make VIRGIN as the same which was produced by Mohit S/o Ram Phool which is Ex.P10; another mobile phone of make HAIER as the same which was handed over by Ganga Ram which mobile phone is Ex.P11 and mobile phone make SAMSUNG as the same which was handed over by Rajender Singh which is Ex.P12.
(70) In his cross examination by Ld. Defence counsel, witness has deposed that the seal was with Investigating Officer which was used on the exhibits and seal after use was handed over to him. He has also deposed that he had stated in his statement that seal after use was handed over to him. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 58 However, when confronted with statement mark PW14/D1 the said fact was not found so recorded. According to him they left from police station on 23.09.2009 and the departure entry was made by Investigating Officer. Witness has further deposed that the room from where the lathi was got recovered by accused was got opened as there was lock which lock was opened by Surat Singh after taking key from the family. The witness has also deposed that the lathi was recovered from the room itself where incident took place and no other articles was seized from the said room on 13.09.2009. According to him the kabar was lying on the left side of the room which was approximate 10x12 feet and there was substantial quantity of kabar lying in the said room. He has denied the suggestion that none of the aforesaid persons handed over any mobile phone to the Investigating Officer or that all the mobile phones were planted by the Investigating Officer.
(71) PW15 Ct. Sanjeev has deposed that on 10.09.2009 he was posted as Constable at Police Station Adarsh Nagar and was on Emergency Duty from 8AM to 8PM and at around 4:40 PM a call was received in the Police Station that a father had committed murder of his son at B43, Kewal Park. According to the witness, he accompanied SI Kishan Lal to the aforesaid place where they found dead body of one person in one of the room of the said house and the age of the deceased was around 75 years and there was a crowd also. Witness has further deposed that SI Kishan Lal informed about the scene to SHO and Inspector Mahavir Kaushik reached St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 59 from the police station who conducted proceedings. The witness has testified that he was sent along with the dead body to got it preserved at BJRM Hospital and he remained outside the mortuary till postmortem was conducted. According to him on the next day postmortem of deceased was got conducted by the Investigating Officer and after postmortem two sealed pullandas and one sample seal were handed over by the doctor, which he handed over to the Investigating Officer who seized the same through seizure memo Ex.PW15/A. Witness has further deposed that one baniyan of deceased was also seized by the Investigating Officer through sealed pullada on 10.09.2009 vide seizure memo Ex.PW1/C. Witness has correctly identified the case property i.e. one baniyan as the same as seized by the Investigating Officer from the spot which baniyan is Ex.P3. (72) In his cross examination by Ld. Defence counsels, witness has deposed that the address informed in the said DD was E42, Kewal Park and he did not notice any other articles in the said room. (73) PW19 HC Sukhbir Singh has deposed that on 16.09.2009 he was posted at Police Station Adarsh Nagar and on that day he alongwith Inspector Mahavir Kaushik and HC Ramesh Chand reached at Rohini Court Complex where Inspector Mahavir Kaushik obtained Police Custody Remand of the accused Manoj and Kamal Kishore after which both accused were taken to the BJRM Hospital for their medical examination. According to him thereafter they reached at B43, Kewal Park, Azadpur, Delhi where at the instance of accused Kamal Kishore one iron rod was recovered from St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 60 garbage/ waste material lying at the corner of the room of the said house. Witness has further deposed that the iron rod was found rusted which looked like a screw driver and on measuring by the Investigating Officer it was found 44.5 cm long. He has proved that the same was converted into a pullanda with help of a cloth and sealed with the seal of MK and seized by the Investigating Officer vide seizure memo Ex.PW1/P. The witness has also deposed that thereafter at the instance of accused Manoj one blue coloured sweater was recovered from the garbage containing old clothes and polythene etc. from the plot near the above said house and accused Manoj disclosed that the sweater was kept on the mouth of the deceased at the time of incident. He has proved that the sweater was also sealed in a cloth pullanda sealed with the seal of MK and the same was seized vide memo Ex.PW1/O seal after use was handed over to HC Ramesh. (74) He has correctly identified the accused Manoj and Kamal Kishore and also identified the case property i.e. one blue coloured sweater as recovered at the instance of accused Manoj which is Ex.P4 and one iron rod looking like a screw driver and Chheni as the same which was recovered at the instance of accused Kamal Kishore which Iron rod is Ex.P8. (75) In his cross examination by Ld. Defence counsel, witness has deposed that his statement was recorded by the Investigating Officer on 16.09.2009 wherein he had stated to the Investigating Officer about the name of the hospital and also about the handing of the seal to HC Ramesh but the same was not recorded by the Investigating Officer in his statement. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 61 He is not aware whether the accused persons were taken to the police station prior to 16.09.2009. He has stated that they reached at B43, Kewal Park Azadpur, Delhi by police vehicle/ gypsy and they were three police officials and two accused persons. He does not remember the registration number of the police Gypsy and states that they reached B43, Kewal Park, Azadpur, Delhi at about 3.004.00 PM and parked the police gypsy just in front of the gate of the said house. Witness has further deposed that the room was situated just adjoining to the main gate of the house on the right side and there was only one gate and one window in the said room. According to him, the door of the room was open when they reached there and there was no door on the main entrance point of the house and there was a cot lying in the room and a mattress was on the cot. He has testified that there is a difference between the Chheni and the screw driver. Witness has further deposed that the length of "Chheni" is generally about threefour inches and generally length of screw driver of different length. He has also deposed that accused Kamal Kishore and HC Ramesh first entered the house and he remained standing outside the house on the road. The witness has further deposed that he and Inspector Mahavir Kaushik were standing at the road with public persons and after ten minutes they came out of the house. According to the witness, he also entered the house after 1015 minutes of entering of the accused Kamal Kishore in the room and Inspector Mahavir Kaushik was with him in the room.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 62 (76) He is not aware about the area of the house No. B43, Kewal Park, Azadpur, Delhi. He has stated that three to four brothers of accused Prem Singh and tenants were also residing in that house and about 2530 public persons of the locality gathered there when they reached at the spot. According to him, Investigating Officer did not issue any notice to the public persons and tenants to join the investigation and only asked them to join the investigation but they refused. Witness has further deposed that no legal action was taken against the public persons for not joining the investigations. He has testified Investigating Officer did not prepare site plan of the place of the recovery of Iron rod Ex.P8 in his presence nor the Investigating Officer prepared any pointing out memo of the place of recovery in his presence. Witness has admitted that no site plan was prepared by the Investigating Officer of the place from where the sweater was alleged to be recovered nor the pointing out memo of that place was prepared. Witness has admitted that there are residential houses constructed in front of house no. B43, Kewal Park Azadpur, Delhi. According to him both the places from where the recoveries were affected were accessible to the public. Witness has denied the suggestion that nothing was recovered at the instance of the accused persons or that he never visited the spot nor he joined the investigations.
(77) PW29 SI Kishan Lal has deposed that on 10.09.2009 he was posted at Police Station Adarsh Nagar and on that day he received DD No. 26A on which he along with Ct. Sanjeev reached at B43, Kewal Park, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 63 Azadpur, Delhi where they found a dead body of a male person on a cot in the outer room of the house and public persons were present there. According to him meanwhile Inspector Mahavir Singh Kaushik reached the spot with staff and thereafter he conducted the proceedings and also called the crime team officials who reached the spot and conducted the proceedings and took photographs. Witness has further deposed that Inspector Mahavir Singh Kaushik recorded statement of Surat Singh brother of the deceased Hoshiyar Singh and prepared the rukka after which HC Sudhir went to police station alongwith rukka for registration of the case and Inspector Mahavir Singh Kaushik prepared the site plan. The witness has testified that one blood stained baniyan, one blood stained towel and blood stained bed sheet under the dead body were found in the room and one Qualis vehicle bearing no. DL4CR6693 was found outside the house. Witness has further deposed that Investigating Officer seized the blood stained baniyan and towel in a cloth pullanda and sealed the same with the seal of MK and seized the same vide seizure memo Ex.PW1/C. He has also deposed that the Investigating Officer sealed the blood stained bed sheet in a cloth pullanda with the seal of MK and seized the same vide seizure memo Ex.PW1/B. Witness has proved that Investigating Officer also seized the Qualis vehicle vide memo Ex.PW1/D after which the dead body was sent to the BJRM Hospital mortuary through Ct. Sanjeev.
(78) Witness has further deposed that on 12.09.2009 he again joined the investigation with Inspector Mahavir Singh Kaushik and complainant St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 64 Surat and another police officials namely HC Raghubir Singh, HC Ramesh Kumar, Ct. Balwan Singh, Ct. Vipin, Ct. Sunder Lal. He has testified that they all reached at Village Bharola where at the instance of complainant Surat Singh the accused Prem Singh was arrested near Shiv Mandir. According to the witness the accused was interrogated by the Investigating Officer and the accused confessed about his involvement in this case after which the Investigating Officer arrested accused Prem Singh vide arrest memo Ex.PW1/G, his personal search was taken vide Ex.PW1/H and his disclosure statement was recorded vide Ex.PW1/I. The witness has proved that thereafter at the instance of accused Prem Singh they reached at Ambedkar Colony, Alipur, Delhi where at the instance of accused Prem Singh, the accused Kamal Kishore was arrested. Witness has further deposed that the accused Kamal Kishore was interrogated by the Investigating Officer who also confessed about his involvement in this case and thereafter the accused Kamal Kishore was arrested vide Ex.PW1/K1, his personal search was taken vide Ex.PW1/K2 and his disclosure statement was recorded vide Ex.PW1/L. He has testified that thereafter at the instance of accused Prem Singh, another accused Manoj was arrested from his house who was also interrogated by the Investigating Officer and he confessed about his involvement in this case. According to the witness, the accused Manoj was arrested vide memo Ex.PW1/J1, his personal search was taken vide memo Ex.PW1/J2 and his disclosure statement was St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 65 recorded vide Ex.PW1/M. He has further deposed that accused Prem Singh, Kamal Kishore and Manoj were muffled faced and taken to the BJRM Hospital for medical examination after which they were produced before the court and police custody remand of accused Prem Singh was obtained whereas two other accused were sent to Judicial Custody. (79) He has correctly identified the accused Prem Singh, Kamal Kishore and Manoj in the Court and also correctly identified the case property i.e. one bed sheet which is Ex.P1; one towel which is Ex.P2 and baniyan which is Ex.P3.
(80) In his cross examination by Ld. Defence counsel, witness has deposed that Inspector Mahavir Singh Kaushik reached the spot with his staff at about 5.00 PM on 10.09.2009 and five to seven persons were present in the room where the dead body was lying whereas about 3040 were present outside the house when he reached there at about 4.45PM. According to the witness there was only one door and one window in the room where the dead body was lying. The witness has testified that they took the accused persons to the court in the police vehicle i.e. TATA 407 bearing No. 9991 but he does not remember its complete registration number. Witness has further deposed that all the police officials proceeded for investigation of this case on 12.09.2009 from Police Station in the above said vehicle. He has testified that the accused persons were produced before the court of Sh. Neeraj Gaur, Ld. MM, Rohini Delhi. He is unable to tell whether the accused persons were produced in any other court because after St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 66 producing them in the court of Ld. MM, he was relieved by the Investigating Officer and he had gone somewhere else. He has testified that accused persons did not point out the place of incident in his presence. Witness has denied the suggestion that accused persons pointed out the place of incident in his presence on the very same day on which they were arrested. He has also deposed that the accused persons were not taken to the Police Station after their arrest, on the day of their arrest, however they were produced before the court after their medical examination. He has testified that the Investigating Officer recorded his statement on 10.09.2009 and 12.09.2009. He does not remember whether there was any blood was found on the cot or not.
(81) PW30 Inspector Mahavir Kaushik is the Investigating Officer of the present case who has deposed that on 10.09.2009 he was posted at Police Station Adarsh Nagar as Inspector/ ATO and on that day a call that a son has been killed by his father was received and SI Kishan Lal already went to the spot. According to the witness, thereafter he also went to the spot i.e. B43, Kewal Park, Delhi alongwith HC Sudhir and PSI Ajay. According to him SI Kishan Lal and Ct. Sanjeev met him at the spot and he found a dead body of male person on a cot in a room of the house and blood was found on the private part of the body. The witness has testified that he called the crime team officials and informed the senior officials. He has further deposed that SI Devender, Crime Team Incharge reached the spot with his staff and inspected the scene of crime. The witness has also St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 67 deposed that he called a private photographer namely Mohan @ Monu who took photographs of the scene of crime. Witness has further deposed that SI Devender also prepared Crime Team Report and handed over the same to him. According to him, there was a blood stained bed sheet on the cot on which the dead body was lying and one blood stained baniyan and blood stained towel were also found on the cot and one Surat Singh brother of deceased Hoshiyar Singh was present there who made allegations against Prem Singh. The witness has proved having recorded the statement of Surat Singh vide Ex.PW1/A and he attested the same with his signatures at point B. Witness has further proved having prepared the rukka which is Ex.PW30/A and HC Sudhir was sent to police station with rukka for registration of FIR and the dead body of Hoshiar Singh was sent to the BJRM Hospital Mortuary through Ct. Sanjeev. The witness has also proved that he kept the blood stained towel and baniyan in a cloth pullanda and sealed the same with the seal of MK and seized the same vide seizure memo Ex.PW1/C. According to him, the bed sheet was also kept in a cloth pullanda and sealed with the seal of MK and seized the same vide seizure memo Ex.PW1/B. He has testified that one vehicle Qualis bearing No. DL4CR6693 was found outside the room / house and same was also seized by him vide seizure memo Ex.PW1/D. He has proved having prepared the site plan Ex.PW30/B at the instance of Surat Singh. The witness has proved having recorded statement of witnesses and in the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 68 meanwhile HC Sudhir returned back with copy of FIR and handed over copy of FIR and original rukka to him for further investigations. He has also deposed that thereafter he searched for the accused Prem Singh but he was not traced out and thereafter they returned back to the police station and deposited the seized articles in the Malkhana.
(82) According to the witness on the next day on 11.09.2009 he went to the BJRM Hospital Mortuary where Ct. Sanjeev, Surat Singh and Jai Singh and other family members of deceased met him. He has proved having prepared the inquest papers and filled the form Ex.PW30/C; having prepared the brief facts vide Ex.PW30/D having recorded the statement of Surat Singh vide Ex.PW1/E and of Jai Singh vide Ex.PW20/A regarding the identification of dead body. Witness has further deposed that he made request for postmortem vide his Ex.PW30/E and after postmortem the dead body was handed over to Surat Singh vide Ex.PW1/F and after postmortem Ct. Sanjeev handed over one pullanda, one envelop in sealed conditon with the seal of hospital along with sample seal to him which he seized vide seizure memo Ex.PW15/A. According to the witness, he recorded statement of Ct. Sanjeev and thereafter returned back to the Police Station and deposited the seized articles in the malkhana.
(83) Witness has also deposed that on 12.9.2009 he along with SI Kishan Lal, HC Ramesh, HC Raghubir, Ct. Vipin and complainant Surat Singh reached at village Bhadola where at the instance of Surat Singh, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 69 accused Prem Singh was apprehended near Shiv Mandir and was interrogated by him. He has further deposed that he confessed about his involvement in the murder of Hoshiyar Singh and disclosed the names of his coaccused. He has proved that the accused Prem Singh was arrested vide Ex.PW1/G, his personal search was taken vide Ex.PW1/H and recorded the recorded disclosure statement of accused Prem Singh vide Ex.PW1/I. Witness has further deposed that at the instance of accused Prem Singh they reached at Alipur from where accused Kamal Kishore was arrested at his instance who was interrogated and he confessed about his involvement in this case. Witness has further deposed that the accused Kamal Kishore was arrested vide Ex.PW1/K1, his personal search was taken vide Ex.PW1/K2 and his disclosure statement was recorded vide Ex.PW1/L. According to the witness at the instance of accused Prem Singh, accused Manoj was also arrested vide Ex.PW1/J1, his personal search was taken vide Ex.PW1/J2 and his disclosure statement was recorded vide Ex.PW1/M. Witness has further deposed that the accused Prem Singh, Kamal Kishore and Manoj were produced before the court after their medical examination and two days' Police Custody Remand of accused Prem Singh was obtained and other two accused were sent to Judicial Custody and accused Prem Singh was kept in the lock up of the police station.
(84) According to the witness on the next day i.e. 13.09.2009 he along with accused Prem Singh, HC Ramesh, HC Raghubir reached the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 70 place of incident i.e. B43 Kewal Park, Delhi where Jai Singh, Surat Singh and other relatives of the deceased met them and at the instance of accused Prem Singh one lathi was recovered from the room where the dead body was found. He has testified that the lathi was measured by him and it was found 5' 3" long and the same was kept in a cloth pullanda and sealed with the seal of MK and the same was seized by him vide seizure memo Ex.PW1/N. He has testified that he recorded statement of witnesses and thereafter they returned back to the Police Station where he got deposited the seized articles in the Malkhana. According to him, on the next day on 14.09.2009 accused Prem Singh was produced before the court and was sent to Judicial Custody. The witness has further deposed that on 15.09.2009 he alongwith Jai Singh, Naresh @ Bandu went to Rohini Jail for TIP Proceedings but accused Kamal Kishore and Manoj refused for TIP proceedings and he obtained the copies of the proceedings. The witness has proved that on 16.09.2009 he obtained the Police Custody Remand of accused Kamal Kishore and Manoj and both accused persons were taken to the place of incident from where at the instance of accused Kamal Kishore one rusted iron rod look in the shape of Chheni was recovered from the garbage at the corner of the room where the dead body of Hoshiar Singh was found. He has testified that he took the measurement of the same and thereafter kept the same in a cloth pullanda and sealed the same with the seal of MK and seized the same vide memo Ex.PW1/P. According to the witness accused Manoj thereafter took out one sweater from the garbage St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 71 lying outside the room and the same was also kept by him in a cloth pullanda and sealed the same with the seal of MK and seized the same vide memo Ex.PW1/O. The witness has testified that he recorded the statement of witnesses and thereafter they returned back to the Police Station and deposited the articles in the Malkhana and on the next day accused Kamal and Manoj were produced before the Court who were sent to Judicial Custody. He has also deposed that on 18.09.2009 complainant Surat Singh came to the Police Station and produced photocopies of complaint made by Hoshiar Singh Singh against his son i.e. accused Prem Singh and he seized the same vide seizure memo Ex.PW1/Q which photocopies of complaints are marked PW1/X, PW1/X1 and PW1/X2.
(85) According to the Investigating Officer, on 23.09.2009 he collected the mobile phone with SIM of accused Prem Singh from his son Rajender Singh and sealed the same in a cloth pullanda with seal of MK and seized the same vide seizure memo Ex.PW27/PX1. He does not remember the mobile number and IMEI number but states that he mentioned the same in his seizure memo. He has testified that he collected the mobile phone with SIM of accused Manoj from his brother Mohit and also kept the same in a cloth pullanda and sealed the same with the seal of MK and seized the same vide seizure memo Ex.PW14/B. According to the witness he also collected the mobile phone of accused Kamal Kishore from his father Ganga Ram and kept the same in a cloth pullanda and sealed the same with the seal St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 72 of MK and seized the same vide seizure memo Ex.PW14/A. He does not remember its mobile number and other particulars but he has mentioned the same in the seizure memo. Witness has further deposed that he collected the ownership document of these mobile phone numbers and the call details of these mobile phones from the service provider and the ownership documents and the call details in respect of the mobile phone of accused Kamal Kishore which are Ex.PW30/F1 to Ex.PW30/F4; the ownership documents and the call details in respect of the mobile phone of accused Prem Singh which are Ex.PW30/G1 to Ex.PW30/G4 and the ownership documents and the call details in respect of the mobile phone of accused Manoj are Ex.PW30/H1 to Ex.PW30/H4 (five pages). The witness has further deposed that on 29.09.2009 he send the exhibits of this case to FSL Rohini through Ct. Vipin and during his investigation scaled site plan of this case was got prepared through SI Manohar Lal. He has also proved having collected the postmortem report and positive photographs. Witness has further deposed that during his investigation on 16.09.2009 he prepared the sketch of the Iron rod (Chheni) at the time of recovery which is Ex.PW30/I and also obtained the subsequent opinion on his application vide Ex.PW10/C and obtained the opinion which is Ex.PW10/B. According to the witness, he also collected the PCR form which is Ex.PW30/J and the FSL report. He has proved having recorded the statement of witnesses and after completion he submitted the charge sheet against accused Prem Singh, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 73 Kamal Kishore and Manoj in the Court.
(86) He has correctly identified all the accused in the Court and also the case property i.e. one bed sheet which is Ex.P1; towel which is Ex.P2; baniyan which is Ex.P3; one sweater of blue colour as the same which was got recovered at the instance of accused Manoj, which sweater is Ex.P4; one Iron rod look like Chheni / screw driver which was recovered at the instance of accused Kamal Kishore, which iron rod is Ex.P8; lathi as the same which was as recovered at the instance of accused Prem Singh which lathi is Ex.P9; mobile phone of Virgin as the same which was produced by Mohit which mobile phone is Ex.P10; mobile phone of make Haier as the same as produced by Ganga Ram which mobile phone is Ex.P11; mobile phone of Samsung as the same as produced by Rajender Singh which mobile phone is Ex.P12.
(87) In his cross examination by Ld. Defence Counsel, witness has deposed that the accused Manoj and Kamal Kishore were arrested on 12.09.2009 and they were not taken to the place of incident on 12.09.2009. Witness has denied the suggestion that the above said accused Manoj and Kamal Kishore were taken to the police station and on the spot on 12.09.2009 after their arrest or that they were shown to the witness Jai Singh and Naresh. According to him, they went to the hospital and thereafter to the Court with the accused persons on 12.09.2009 on the official vehicle TATA 407 bearing no. 9991 and other numbers may be DL St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 74 4C but he does not remember its complete registration number. According to him, the room where the dead body of Hoshiar Singh was found was locked by him and key was handed over to Surat Singh which fact he has not mentioned in his investigations. Witness has further deposed that the complainant did not produce any document of doctor showing that the deceased had already died. He has testified that on 10.09.2009 he recorded statement of Surat Singh, Jai Singh, Kavita, Naresh @ Bandhu, Satish and the police officials.
(88) Witness has further deposed that on 12.09.2009 he recorded statement of Surat Singh, SI Kishan Lal and another police officials. He has also deposed that he had not taken opinion of any doctor regarding declaration of death of deceased Hoshiyar Singh before sending the same to the mortuary. According to the witness, he did not seize the cot and its "Niwar" on which the body of the deceased was lying. He has also deposed that he did not collect any document from Khera Clinic and has voluntarily stated that the said doctor told him that they had not prepared any document as the deceased was already dead and was not admitted in the hospital. Witness has further deposed that he did not record the statement of any person or doctor of Khera Clinic. He has denied the suggestion that deceased was never removed to to Khera Clinic and it is for this reason no such document or the statement of any person from the said clinic was ever recorded by him. According to the witness, he did not collect any documents from the Civil Court in which the property dispute was stated to St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 75 be pending between Prem Singh and his deceased father Hoshiar Singh. Witness has admitted that in the charge sheet nowhere it is mentioned that as to in which court the civil dispute was stated to be pending and has voluntarily stated that even Surat Singh did not tell about the same. Witness has also admitted that there were few tenants residing in the same premises in which the dead body was found. He has further deposed that he inquired from the tenants about the incident and they told him that they were not present at the house and did not know about the incident. The witness has also deposed that the tenants had disclosed to him that the father and son used to quarrel with each other but they were not aware of the reason why they used to quarrel. Witness has testified that he did not record any statement of any tenant nor he cited them as witness. Witness has denied the suggestion that there was no property dispute between Prem Singh and his father and it is for this reason that none of the tenants told about the same and therefore he deliberately did not record their statements. According to him, accused Prem Singh was living in the same premises in a separate room which was small in size and the total area of the property B43, Kewal Park, Delhi is about 225 Sq. Yards. He has further deposed that during the Inquiry he did not come to know that out of the said total area Prem Singh was the owner of 100 Sq. Yards. Witness has denied the suggestion that since Prem Singh was the owner of 100 Sq. Yards out of the said total area therefore there was no property dispute between Prem Singh and his father. He has testified that during the inquiries he did not collect St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 76 any DD or any Kalandara regarding quarrel or dispute between Prem Singh and his father except the complainants marked PW1/X, PW1/X1 and mark PW1/X2 and has voluntarily explained that he was not made aware if there is any Kalandara or any other DD entry. According to the witness, he did not verify the said complaints from the concerned authorities nor he inquired about their existing status and has voluntarily explained that no record was available. He has further deposed that he has not obtained any document from any authority as to the nonavailability of the said record. He has denied the suggestion that the complaints marked PW1/X, PW1/X1 and mark PW1/X2 are false and fabricated. (89) The witness has admitted that the vehicle Qualis bearing no. DL 4C R 6693 was not a commercial vehicle. Witness has further deposed that the Qualis vehicle was registered in the name of Vijender. He has admitted that accused Prem Singh is not running any tour and travel agency and has voluntarily stated that he was driving the vehicle on rent (ye gadi kiraye par chalata hai). The witness has testified that he used to ply the vehicle on basis of bookings. He has admitted that Prem Singh does not own his own vehicle and has voluntarily stated that his cobrother / Sandoo had purchased a vehicle for him and given the same to him which he was plying. He has also deposed that neither Prem Singh nor his cobrother give him any document regarding agreement between him and his Sandoo for plying the vehicle. He has admitted that he did not collect any bill regarding the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 77 mobile phones Ex.P10, Ex.P11 and Ex.P12. Witness has denied the suggestion that the mobile phone Ex.P12 does not belong to accused Prem Singh nor the same was ever used by accused Prem Singh. He has further denied the suggestion that Sandoo/cobrother of Prem Singh did not give him any vehicle for plying. According to the Investigating Officer on 13.09.2009 he did not join any of the tenants in the investigations. He has admitted that the site plan Ex.PW30/B does not bear signatures of Surat Singh. Witness has denied the suggestion that the site plan was not prepared at the instance of Surat Singh. He has further admitted that he did not prepare the site plan of the place of recovery of Lathi. Witness has denied the suggestion that no recovery was effected from the possession or at the instance of accused Prem Singh. According to him, Vijay is the son of Surat Singh who is cobrother / Sandoo of accused Prem Singh and Vijay did not tell him that accused Prem Singh had talked with accused Manoj and Kamal Kishore prior to the incident. Witness has admitted that he did not collect any document regarding any complaint / civil case filed by accused Prem Singh against his father deceased Hoshiar Singh and has voluntarily explained that none of the witnesses or the accused persons told him about this fact. He has denied the suggestion that no disclosure statement has been made by the accused persons or that nothing was recovered at their instance. Witness has further denied the suggestion that the father of Kamal Kishore and relatives of other accused persons has not produced any mobile to him or that documents pertaining to these mobile phones has been St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 78 fabricated and planted upon the accused persons. Witness has further denied the suggestion that he has also not conducted the investigation fairly or that the accused persons are innocent or that the accused persons has been falsely implicated in this case.
STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:
(90) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they have denied.
(91) The accused Prem Singh has stated that there was a property dispute going on in the family as his brothers and uncles were having an evil eye on the property of his father. He has further stated that his brothers and uncles have in connivance with each other falsely implicated him in this case in order to grab his property. According to him, he is innocent and has not committed any offence. The accused has also stated that the allegations against him are false.
(92) The accused Kamal Kishore and Manoj have stated that they are innocent and have been falsely implicated. They have further stated that they refused to join Judicial Test Identification Parade since they were already shown to the witnesses. Both the accused have denied having made any disclosure statement or having got recovered anything.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 79
(93) The accused Kamal Kishore and Manoj have preferred not to examine any witness in their defence. However, the accused Prem Singh has examined himself as DW1 in his defence wherein he has deposed that in the year 2009 he was doing work of selling vegetables at Azadpur Subzi Mandi, Delhi. According to the accused on 30.3.1992 he had purchased the property bearing no. B43, Kewal Park, Azadpur, Delhi33 from Sh. Prithi Singh S/o Sh. Heera Singh for a sum of Rs.50,000/ which property was of about 200 Sq. Yards out of which he had purchased 100 Sq. Yards. He has further deposed that at the time of purchase of said plot the GPA, Agreement to Sell, an Affidavit, Will, Receipt and the Possession Letter were executed by his real maternal uncle Prithi Singh. He has placed on record the copy of GPA which is Ex.DW1/A; copy of Agreement to Sell which is Ex.DW1/B; copy of affidavit which is Ex.DW1/C; copy of Will which is Ex.DW1/D; copy of Receipt which is Ex.DW1/E and copy of Possession Letter which is is Ex.DW1/F. He has also deposed that ever since he had purchased the above said plot he is not into any dispute with anybody including Prithi Singh and his family comprising of his wife and children are residing in the said house. The witness has further deposed that his uncle Prithi Singh S/o Heera Singh has expired prior to the present case.
According to him, there was no dispute between him and his father at any point of time and he never filed any civil suit relating to property dispute against his father.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 80 (94) In his crossexamination by the Ld. Addl. PP for the State the witness has admitted that none of the above documents are registered and that the circular stamp of Notary does not show either the number of the Notary or the signatures of the Notary. According to him, he had purchased the stamp papers on which the above documents were executed, from Tis Hazari Courts.
(95) During the examination of the witness, this Court has observed that the stamp papers were purchased by Prithi Singh S/o Heera Singh. (96) He has stated that the said documents were executed on the same day of their purchase and he had signed these documents in Tis Hazari Courts. According to him, when the said documents were executed his uncle Prithi Singh, Kishan Singh and Surat Singh were present with him. He has stated that Krishan Singh and Surat Singh are residing in Mukundpur Village and Nirankari Colony and are not related to him. The witness has further deposed that he has no other property in his name and his wife and other family also do not have any other property in their name. He has also stated that he did not pay any house tax at any point of time to the Municipal Corporation after its transfer to his name nor has he informed the Municipal Corporation regarding the purchase of the property or the transfer of the property in his name. He has further stated that he has no electricity meter or water meter installed in his name in the said property. According to him, the gas connection is in the name of his wife.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 81 FINDINGS:
(97) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness Public witnesses
1. Surat Singh (PW1) He is the complainant / brother of the deceased Hoshiyar Singh. He has deposed on the following aspects:
1. That he is driver by profession and drives a tempo and his elder brother Hoshiar Singh (deceased) was residing at B43, near his house.
2. That on 10.09.2009 he was returning back at about 44:15 PM with his tempo when he saw that his niece Kavita was weeping loudly.
3. That he along with his brother Jai Singh went to the house of his elder brother Hoshiar Singh where he saw that his brother Hoshiar Singh was lying on a cot and a bed sheet was lying over his body.
4. That he removed the bed sheet and found that Hoshiyar Singh was not talking on which he removed his brother to Khera Clinic where the doctor told told him that he (Hoshiyar Singh) had already expired after which they brought him back and placed him on the same cot.
5. That he made a call on 100 number to the police from the mobile No. 9210000881 which was in the name of his brother Rattan Singh and was used by St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 82 his nephew Rajiv.
6. That there was a quarrel between his brother Hoshiar Singh and his son Prem Singh on the property and one court case was also pending between them.
7. That Prem Singh had quarreled and given beatings to Hoshiar Singh on many occasions and Prem Singh also threatened Hoshiar Singh to kill him.
8. That when he made the phone call to the police on 100 number at that time Prem Singh was there but after he (Surat Singh) made the call he (Prem Singh) ran away from the spot.
9. That PCR officials reached the spot and subsequently local police also reached there and recorded his statement which is Ex.PW1/A.
10. That police seized one blood stained bed sheet vide memo Ex.PW1/B.
11. That police seized blood stained towel of yellow color and one baniyan vide memo Ex.PW1/C.
12. That police also seized Qualis vehicle bearing No. DL4CR6693 of white color which was parked in the gali in front of H.No. B43, Kewal Park vide memo Ex.PW1/D.
13. That the dead body of his brother was removed to BJRM hospital for postmortem.
14. That on 11.09.2009 he went to Mortuary BJRM hospital where he identified the dead body of his brother Hoshiar Singh vide statement Ex.PW1/E and after postmortem dead body was handed over to him vide Ex.PW1/F.
15. That on 12.09.2009 he came to know that accused Prem Singh was present at Bhadola Shiv Mandir on which he informed the police about the same and he along with police reached there.
16. That at his instance the accused Prem Singh was arrested vide memo Ex.PW1/G and his personal search was conducted vide memo Ex.PW1/H. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 83
17. That Prem Singh was interrogated who made his disclosure statement which is Ex.PW1/I and informed the police that there were two other associates who were also involved in the commission of crime and he could get them arrested from Alipur.
18. That accused Prem Singh led them to Alipur from where he got arrested accused Manoj vide memo Ex.PW1/J1 and his personal search was conducted vide memo Ex.PW1/J2 and accused Kamal Kishore was arrested vide memo Ex.PW1/K1 and his personal search was conducted vide Ex.PW1/K2.
19. That both the accused were interrogated and they made their disclosure statement vide memo Ex.PW1/L and Ex.PW1/M after which they all returned back.
20. That on 13.9.2009 police brought the accused Prem Singh to the house of deceased Hoshiar Singh and he was present there.
21. That the accused led the police party inside the room and pointed out towards a screw driver and a lathi.
22. That the lathi was measured by the police which was 5 or 5.25 feet and was having eight knots (pours) after which it was seized vide memo Ex.PW1/N.
23. That on on 16.06.2009 police along with Kamal Kishore and Manoj came to the house of his brother deceased Hoshiar Singh and Manoj pointed out one place where the scrap material was lying.
24. That in his presence accused Manoj pointed out a sweater of blue color at a spot where broken room garbage (kabara) of deceased Hoshiar Singh was lying and disclosed that by using this sweater they had closed the mouth of deceased on which police seized the blue sweater vide memo Ex.PW1/O. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 84
25. That the accused Kamal Kishore took out a iron chhenni having length of about 1.5 feet from the corner of same room and disclosed that he used this iron chhenni in the murder of Hoshiar Singh after which the chenni was seized vide memo Ex.PW1/P.
26. That on 18.09.2009 he went to Police Station and handed over photocopy of two complaints which were written by his deceased brother against accused Prem Singh dated 31.05.2008 (PW1/X1) and 22.07.2008 (PW1/X2) and handed over copy of compromise (PW1/X) and police seized all three documents vide seizure memo Ex.PW1/Q.
27. That on 10.10.2009 police officials came to the house of his deceased brother along with Draftsman who prepared the site plan.
28. That the vehicle Qualis bearing No. DL4C R 6693 is owned by son of sister in law of accused Prem Singh which vehicle had been used by accused Prem Singh.
He has correctly identified all the accused persons in the Court.
2. Sh. Mohan @ He is a private photographer who has deposed that he is Monu (PW9) running a photo studio at A41, Gopal Nagar, Azadpur, Delhi110033 and on the request of the investigating officer he reached at the spot and took eleven photographs of spot, vehicle and the dead body from digital camera from different angle, which photographs are Ex.PW9/A1 to Ex.PW9/A11.
3. Narender Singh He is the real brother of the accused Prem Singh who has (PW11) deposed on the following aspects:
1. That he is working in Azadpur Mandi as commission agent and he has two brothers namely Satish Kumar and accused Prem Singh (elder brother).
2. That Prem Singh was married in the year 1984 and was residing separately in one of the room of the premises in question.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 85
3. That Prem Singh used to quarrel with his father Hoshiyar Singh with regard to property and also used to beat his father and threatened to kill his father.
4. That on 10.09.2009 at around 4:15 PM he came to his house from his work place when he saw his father lying on a cot on which he along with his cousin brothers took his father to Khera Nursing Home where he was declared brought dead.
5. That when they came back to the house along with the dead body of his father, his elder brother Prem Singh had already left the house.
6. That he has full suspicion that his father has been killed by his elder brother.
4. Smt. Kavita She is the daughter of the deceased and real sister of the (PW12) accused Prem Singh. She has deposed on the following aspects:
1. That in the year 2009 she used to go to "Silai center" at Kewal Park extension for classes.
2. That she has three brothers and one elder sister namely Anita who was married with Ramesh Kataria in the year 1995/1996.
3. That her elder brother Prem Singh had quarreled with her father in the year 2008 and gave beating to her father who received head injury and received stitches on his head.
4. That thereafter quarrel also used to take place with her father and accused Prem Singh.
5. That on 09.09.2009 she went to Silai Center at around 1:00 PM and her father was alright and was cleaning the roof as rainy water collected on the roof.
6. That she returned back from the center around 3:454:00 PM and saw her father was lying on a cot and bed sheet was on his body.
7. That when she returned back from the center she found her brother Prem Singh moving in the Verandah and his vehicle was parked outside the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 86 room of her father.
8. She gave call to her father but there was no response from him on which she took of the bed sheet from the body of her father but he was not responding on which she felt some suspicious and presumed that he had died and she started weeping.
9. That persons of the locality collected there and their relatives collected at their house.
10. That her uncle Jai Singh and his son took her father to Khera Nursing Home.
11. That on checking in Khera Nursing Home, he (her father) was declared brought dead and her uncle Surat Singh came from Chandigarh and he got conducted police proceedings.
12. This witness does not recollect whether the date of incident was 09.09.2009 or 10.09.2009. She has denied the suggestion that she had told the police in her statement Ex.PW12/A that her brother Prem Singh had murdered her father.
5. Satish (PW13) He is the real brother of accused Prem Singh and son of the deceased Hoshiyar Singh. He has deposed on the following aspects:
1. That they are three brothers and two sisters and accused Prem Singh is his elder brother who was married in the year 1984 and was residing separately in one of the room.
2. That his brother Prem Singh had filed a civil suit against his deceased father for share of 100 sq. yards from the said property and used to quarrel with his father almost daily and also used to beat his father.
3. That in the year 2008 accused Prem Singh gave beatings to his father who also sustained head injuries and it is his brother Prem Singh who had killed his father.
4. That on the day of incident i.e. on 10.09.2009, he went to Kewal Krishan Ice cream wala for employment between 12:301:00 PM but he did not St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 87 met him and he waited there and the son of his uncle Rajeev was also with him.
5. That some of his family members informed on the mobile phone of Rajeev that his father has been murdered on which he along with his brother Rajeev came to their house and found his father lying on a cot and covered with a bed sheet.
6. That he took off the bed sheet from the face of his father and saw that he was not alive.
6. Sh. Mool Chand He is the President of the Kewal Park Colony and is known (PW16) to Hoshiar Singh and Prem Singh being the residents of their colony. He has deposed on the following aspects:
1. That frequent quarrels took place between Hoshiar Singh and accused Prem Singh.
2. That in the year 2008, date and month he does not remember a quarrel had taken place between Hoshiar Singh and accused Prem Singh and he also went to the Police Station.
3. That due to his intervention a compromise took place and police did not take any action in this regard.
4. That on one occasion there was a state of Manhandling between Hoshiar Singh and accused Prem Singh.
5. That Hoshiar Singh compromised the matter to save his image.
6. That he has stated to the police that compromise took place on 28.12.2008.
He has however denied that accused Prem Singh is a bad element of the area and has stated that he is a gentle person (Shareef Aadmi).
7. Mohit (PW17) He is the brother of the accused Manoj and has proved that he was having a mobile phone and he obtained mobile phone connection number 9278453468 on the ID proof of his friend Ashok Kumar. He has also proved that after one or two days of arrest of his brother Manoj police seized his above said mobile phone with the above said SIM card vide memo Ex.PW14/B. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 88 He has however turned hostile on the aspect that it was his brother Manoj Kumar who was using the said mobile phone.
8. Ganga Ram He is the father of the accused Kamal Kishore and has (PW18) turned hostile on the aspect that on 23.09.2009 police seized the mobile phone of "Haier" CDMA ESN No. 30947435 with SIM no. 9210887579 of his son Kamal Kishore.
9. Sh. Jai Singh He is the younger brother of the deceased Hoshiyar Singh (PW20) and uncle / chacha of the accused Prem Singh. He has deposed on the following aspects:
1. That a quarrel took place between accused Prem Singh and Hoshiyar Singh about the property and Prem Singh gave beatings to his father Hoshiyar Singh on many occasions and due to this reason and he also tried to make Prem Singh understand.
2. That on 10.09.2009 at about 2:30 PM he was present on the balcony (chaja) of his house when he saw that his nephew accused Prem Singh talking with two boys just in front of the room of his brother Hoshiyar Singh near the vehicle, Qualis of Prem Singh.
3. That after some time Prem Singh boarded in his Qualis vehicle and other two boys who were talking with Prem Singh entered in the room of his brother Hoshiyar Singh.
4. That he was thinking that those boys came there for tenancy purpose and there was rain so he went inside his house.
5. That at about 4:15 PM he heard the cries of his niece Kavita D/o Hoshiyar Singh on which he came in the gali and saw that his brother Hoshiyar Singh was lying on the cot in his room.
6. That he along with Surat Singh and other persons took Hoshiyar Singh to Dr. Khera Nursing home where Hoshiyar Singh was declared dead.
7. That thereafter they returned back to the house and dead body of Hoshiyar Singh was kept on the same St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 89 cot and they made call at 100 number and saw that Prem Singh, accused ran away from there.
8. That PCR officials as well as local police came there and police from the crime team official also reached there who inspected the dead body of Hoshiyar Singh and also took the photographs of the dead body.
9. That the police seized the bed sheet vide seizure memo Ex.PW1/B and also seized the baniyan & towel vide seizure memo Ex.PW1/C.
10. That on the next day, postmortem on the dead body was conducted and he identified the dead body of his brother Hoshiyar Singh vide Ex.PW20/A.
11. That after postmortem dead body was handed over to them vide Ex.PW1/F.
12. He has correctly identified the accused Kamal Kishore and Manoj Kumar as the persons who were talking with accused Prem Singh and entered in the room of Hoshiyar Singh.
10. Naresh Kumar @ He is a neighbour of the deceased who has deposed on the Bandhu (PW21) following aspects:
1. That he knew Hoshiar Singh and Prem Singh being residents of the same area.
2. That there were frequent quarrels between accused Prem Singh and deceased Hoshiar Singh on the issue of property which took place several times.
3. That accused Prem Singh used to abuse his father and also used to give beating him and demanded the property in his favour.
4. That on 10.09.2009 at about 3.15PM he was going to his shop situated at F27,Gopal Nagar from his house and it was raining when he saw that accused Prem Singh was present with his vehicle Toyota Qualis in front of the room of deceased Hoshiar Singh.
5. That the accused Prem Singh was pressing accelerator of his vehicle continuously and making St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 90 the loud sound of vehicle (gadi ko race de raha tha).
6. That he asked him about the reason for the same on which he (Prem Singh) replied that his vehicle was not starting and meanwhile he saw two young boys coming out from the room of his father Hoshiar Singh.
7. That he asked him (Prem Singh) about those boys on which he replied that they were the tenants.
8. That thereafter he went towards his shop at Gopal Nagar and in the evening time he came to know that Hoshiar Singh was murdered.
9. That on 16.09.2009 he was called by the police at the house of Hoshiar Singh and when he went there he saw that two persons namely Manoj and Kamal were in the custody of police and police told him that the said persons had committed the murder of Hoshiar Singh and he identified both the persons as the persons who entered in the room of Hoshiar Singh.
10. That at the instance of accused Kamal one iron rod looking like "Chheni" was recovered from the corner of the room of Hoshiar Singh and police sealed the iron rod in a cloth pullanda with the seal of MK.
11. That at the instance of accused Manoj one sweater was recovered from the garbage outside the gate of the house and the same was also sealed in a cloth pullanda by the police with the seal of MK.
He has correctly identified all the accused in the Court.
11. Vijender Singh He is the son of Sandhu of accused Prem Singh and has (PW23) deposed on the following aspects:
1. That he is the registered owner of Qualis bearing No. DL4CL6693 which vehicle was lying detained in the Police Station Adarsh Nagar.
2. That he moved an application in the court for taking the vehicle on superdari which application is Ex.PW23/A; photocopy of RC of the said vehicle St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 91 which is Ex.PW23/B; the Superdarinama is Ex.PW23/C and the vehicle is Ex.PW23/P1.
3. That the said vehicle was purchased by his father in his name.
4. That his Mausaji namely Prem Singh who was without job at that particular time, therefore his father gave the said vehicle to his Mausa to drive and his mausa Prem Singh used to give 50% of his profit to his father.
5. He has correctly identified the accused Prem Singh in the Court.
12. Ashok Kumar He is the friend of Mohit (the brother of accused Manoj).
(PW24) He has proved that his friend Mohit asked him to provide his identity proof as he was in need of a mobile connection on which he gave him his identify proof i.e. photostate copy of the driving licence which is Mark PW24/A to Mohit for obtaining the mobile connection
13. Om Dutt He is a resident of the same area and has deposed on the Bharadwaj (PW25) following aspects:
1. That he knew accused Prem Singh and also his father namely Hoshiyar Singh.
2. That about two months prior to the murder of Hoshiyar Singh, he was called by Mool Chand at Police Station Adarsh Nagar and there a compromise arrived between Hoshiyar Singh and Prem Singh.
3. That though Hoshiyar Singh was not intending and willing to compromise but they made them understand.
4. That the said compromise took place as Maar Pitai (beatings) took place between Prem Singh and Hoshiyar Singh and he saw bandage over the head of Hoshiyar Singh.
5. That Prem Singh apologize Hoshiyar Singh and the compromise was pen down and the seizure memo of the compromise is Ex.PW1/Q. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 92
14. Raj Pal (PW26) He is a public witness who has deposed on the following aspects:
1. That in the year 2009 he used to drive vehicle at Spring Dales School, South Campus, Dhaula Kuan, Delhi and he knew the accused Prem Singh whom the witness has correctly identified in the Court who used to drive TaxiQualis.
2. That on 10.9.2009 he had to go Balaji and he made him a call to the accused at about 4:00 - 4:15 PM at mobile no. 9818908444 on which the accused Prem Singh picked up the phone and told him that he was in need of a Taxi but the accused told him that Taxi was not spare.
3. That thereafter Prem Singh disconnected the phone immediately (harbarahat mein phone kaat diya).
4. That police met him and made inquiries him about Prem Singh and recorded his statement.
15. Surat Singh He is the cobrother/ Sandhu of the accused Prem Singh (PW27) and has deposed the following aspects:
1. That he used to work in DDA and Vijender is his son.
2. That at about fourfive years ago he had purchased one Toyota Qualis Jeep No. DL 4C R 6693 in the name of his son Vijender against cash and his co brother (Sadoo) Prem Singh who used to reside in Kewal Park was a Driver.
3. That since Prem Singh was not doing any job at particular time therefore he gave the aforesaid vehicle to Prem Singh to drive and the profit / earning used to divided between him and Prem Singh into equal share i.e. 50% to each of them.
4. That in the monsoon season of the year 2009 when Hoshiyar Singh expired, he received a call from Prem Singh who told him that Hoshiyar Singh had expired and he should reach home immediately.
5. That since he was on duty at that time therefore he told him (Prem Singh) that he could reach house after 5.00 PM.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 93
6. That the said phone call was received by him at about 4.004.15 PM and after seeking permission from his Boss he left for his house.
7. That there was crowd at the house of Prem Singh but Prem Singh was not present there.
8. That on 23.09.2009 the Investigating Officer seized the mobile phone bearing no. 9818908444 which was produced before police by Rajender @ Babu S/o Prem Singh and police seized the mobile phone while preparing seizure memo which is Mark PW1/X3 which bear his signatures at point X.
9. He has admitted his signatures on the seizure memo Ex.PW27/PX1 but is unable to tell if police had seized the phone bearing no. 9818908444 which was being used by Prem Singh.
16. Ram Phool (PW28) He is the father of the accused Manoj who has deposed that police had come to their house on 23.9.2009. He has however turned hostile on the aspect that police had made inquiries from him regarding telephone number 9278455468 or that he informed them that it was belonging to his younger son Mohit but Manoj was using the same. Medical witness:
17. Dr. K. Goyal This witness has proved on 11.09.2009 he conducted the (PW10) Postmortem on the dead body of one Hoshiar Singh S/o Late Sh. Raghu Ram aged about 67 years, male brought by the police official sent by Inspector Mahavir Kaushik of Police Station Adarsh Nagar with alleged history of found dead at B43, Kewal Park, Azadpur, vide PM report Ex.PW10/A. He has proved the following aspects:
1. That all injuries were antemortem in nature and injury no. 1 to 4 were caused by blunt force impact.
2. That injury no.5 was caused by pressure over mouth consistently by grip to ward off cries.
3. That injury no.6 was caused by sharp edged weapon and injury no.7 was caused by sharp, cutting penetrating weapon.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 94
4. That chest, liver and pelvic injuries were caused by blunt force impact and all injuries were collectively consistent with assault.
5. That the cause of death in this case is combined effect of shock and hemorrhage due to chest, liver and pelvic injuries and vasovegal shock due to testicular injuries and are collectively sufficient to cause death in ordinary course of nature.
6. That time since death was about 2324 hours and the clothes and blood sample of the deceased in gauze piece were preserved, sealed and handed over to the police officials.
7. That on 23.09.2009 Inspector/ATO Adarsh Nagar Inspector Mahavir Kaushik tendered an application regarding opinion of weapon of offence and produced one sealed packet inscription of which was MK.
8. That on opening the packet it was found to contain one iron rod in the form of long chisel about 44.5 cm long, circumferentially partly curved, partly flat in its anterior half, round in its rear half, rear end was little wide and head like, front end was tapered into sharp flat end about 0.9 cm wide, circumference was about 3.4 cm, the rod was dark brownish and blackish, rusted at places with few reddish stains at places, the front sharp end was little bright having few reddish stains.
9. That he opined that the injuries no. 6 and 7 mentioned in postmortem report Ex.PW10/A are possible by this weapon or similar such type of other weapon.
10. That the weapon was resealed along with police seal with the seal of KG and handed over to Police Investigating Officer Inspector Mahabir Kaushik along with sample seal and his detailed opinion alongwith the sketch of rod is Ex.PW10/B.
11. That the request of the Investigating Officer for seeking opinion is Ex.PW10/C and his endorsement St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 95 at point B to B. He has correctly identified the iron rod i.e. chenni as the same rod which was examined by him which is Ex.P8. Forensic witness:
18. Sh. Indresh Kumar This witness has proved the biological and serological Mishra Sr. reports which are Ex.PW22/A and Ex.PW22/B according Scientific Officer to which blood was detected on Ex.1, 2a, 2b, 3, 4a, 4b, 4c, (Biology) PW22 5 and 6 and Blood Group B was detected on bed sheet, towel, shirt, pant, underwear and blood stained gauge cloth piece. He has proved that after examination remnants of the exhibits were sealed with the seal of IKM, FSL DELHI and were sent back to SHO Police Station Adarsh Nagar through forwarding letter of the Director, FSL vide Ex.PW22/C. Nodal officers:
19. Gaganjit Singh This witness has proved the following documents:
Sidhu (PW7) 1. Customer application form of mobile No. Nodal Officer Tata 9210887579 which was alloted to Kamal Kishore Teleservices S/o Ganga Ram, R/o 380 near Nala Wali Gali, Nehru Enclave, Village Alipur, Delhi which Customer Application Form is Ex.PW7/A.
2. Election identity card in support of the address which is Ex.PW7/B.
3. Call details of the said number from 08.09.2009 to 11.09.2009 which is Ex.PW7/C.
4. Customer Application Form of mobile No. 9278453468 which was alloted to Ashok Kumar S/o Sh. Krishan Kumar, R/o A54, Subhash Nagar, Kanpur, UP having local address House No. 2044, Alipur, Godhi, Delhi36 which customer application form is Ex.PW7/D.
5. Copy of driving licence in support of the address which is Ex.PW7/E.
6. Call details of the said number from 07.09.2009 to 11.09.2009 which are Ex.PW7/F.
7. Certificate under Section 65B of Indian Evidence Act which is Ex.PW7/G. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 96
8. Cell ID chart of the aforesaid numbers which is Ex.PW7/H.
20. Tarun Khurana He has proved the following documents:
(PW8) Nodal 1. Customer Application Form of mobile No. Officer Bharti 9818908444 which was alloted to Surat Singh S/o Airtel Hari Singh, R/o 373, Nirankari Colony Delhi which customer application form is Ex.PW8/A,
2. Copy of the election identity card in support of the address which is Ex.PW8/B,
3. Call details of the said number from 07.09.2009 to 10.09.2009 which is Ex.PW8/C.
4. Certificate under Section 65B of Indian Evidence Act which is Ex.PW8/D.
5. Cell ID Chart which is Ex.PW8/E. .
Police witnesses (proving investigations)
21. SI Devender (PW2) He is a formal witness being the Crime Team Incharge who has proved the Crime Team Report which is Ex.PW2/A.
22. Ct. Vipin Kumar He is a also a formal witness who has proved having taken (PW3) the exhibits from MHCM on 29.9.2009 and deposited the same at FSL Rohini.
23. SI Manohar Lal He is a formal witness being the Draftsman who has (PW4) proved having prepared the scaled site plan which is Ex.PW4/A.
24. HC Prahlad Singh He is a formal witness being the MHCM who has proved (PW5) the entries in register no. 19 copies of which are Ex.PW5/A1 to Ex.PW5/A7 and entries in register no. 21 vide no. 113/21/09 copy of which is Ex.PW5/B.
25. SI (Retd.) Om He is a formal witness being the Duty Officer who has Prakash (PW6) proved having recorded the FIR of this case copy of which is Ex.PW6/A and his endorsement on rukka which is Ex.PW6/B.
26. HC Raghuvir This witness has joined investigations with Inspector Singh (PW14) Mahavir Kaushik on 13.9.2009 and has proved the following aspects:
1. That he accompanied the Investigating Officer to place of incident i.e. B43, Kewal Park along with St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 97 accused Prem Singh.
2. That accused Prem Singh got recovered a lathi in a kabar in the corner of the room and the length of the said lathi was around 5 feet 3 inches.
3. That a pullanda was prepared of the said lathi and same was sealed with the seal of MK and was taken into possession vide seizure memo Ex.PW1/N.
4. That on 23.09.2009 he again joined the investigations of the present case along with Investigating Officer and they went o B43, Kewal Park for investigations of the present case.
5. That Rajender @ Babu S/o Prem Singh met them who handed over a mobile phone make TATA C157 without SIM on which the said mobile phone was converted into a pullanda and was taken into possession vide seizure memo Ex.PW1/X3.
6. That thereafter they went to Alipur where Ganga Singh met them and a mobile phone make HAIER was also seized from him vide seizure memo Ex.PW14/A and the SIM number of the said mobile phone was 9210887579.
7. That thereafter they went to the house of Ram Phool where Mohit met them who also handed over one mobile phone make VIRGIN with SIM No. 9278453468 to the Investigating Officer who sealed the same with the seal of MK and seized through seizure memo Ex.PW14/B.
27. Ct. Sanjeev (PW15) This witness had visited the spot along with SI Kishan Lal on 10.09.2009 and has proved the following aspects:
1. That at around 4:40 PM a call was received in the Police Station that a father had committed murder of his son at B43, Kewal Park.
2. That he accompanied SI Kishan Lal to the aforesaid place where they found dead body of one person in one of the room of the said house and the age of the deceased was around 75 years and there was a crowd also.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 98
3. That SI Kishan Lal informed about the scene to SHO and Inspector Mahavir Kaushik reached from the police station who conducted proceedings.
4. That he was sent along with the dead body to got it preserved at BJRM Hospital and he remained outside the mortuary till postmortem was conducted.
5. That on the next day postmortem of deceased was got conducted by the Investigating Officer and after postmortem two sealed pullandas and one sample seal were handed over by the doctor, which he handed over to the Investigating Officer who seized the same through seizure memo Ex.PW15/A.
6. That one baniyan of deceased was also seized by the Investigating Officer through sealed pullanda on 10.09.2009 vide seizure memo Ex.PW1/C.
28. HC Sukhbir Singh This witness had also joined investigations with Inspector (PW19) Mahavir Kaushik on 16.09.2009 and has proved the following aspects:
1. That he alongwith Inspector Mahavir Kaushik and HC Ramesh Chand reached at Rohini Court Complex where Inspector Mahavir Kaushik obtained Police Custody Remand of the accused Manoj and Kamal Kishore after which both accused were taken to the BJRM Hospital for their medical examination.
2. That thereafter they reached at B43, Kewal Park, Azadpur, Delhi where at the instance of accused Kamal Kishore one iron rod was recovered from garbage/ waste material from the corner of the room of the said house.
3. That the iron rod was found rusted which looks like a screw driver and on measuring by the Investigating Officer it was found 44.5 cm long.
4. That the same was sealed in a cloth pullanda and sealed with the seal of MK and seized by the Investigating Officer vide seizure memo Ex.PW1/P.
5. That thereafter at the instance of accused Manoj one blue coloured sweater was recovered from the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 99 garbage containing old clothes and polythene etc. from the plot near the above said house and accused Manoj disclosed that the sweater was kept on the mouth of the deceased at the time of incident.
6. That the sweater was also sealed in a cloth pullanda sealed with the seal of MK and the same was seized vide memo Ex.PW1/O seal after use was handed over to HC Ramesh.
29. SI Kishan Lal He is the initial investigating officer who had gone to the (PW29) spot and has also joined the investigation with Inspector Mahaivr Kaushik.
30. Inspector Mahavir He is the investigating officer of the present case who has Kaushik (PW30) proved the various investigations conducted by him. Apart from the documents proved by the various witnesses, he has proved the following documents Ex.PW30/A Rukka Ex.PW30/B Rough site plan Ex.PW30/C Inquest form Ex.PW30/D Brief facts Ex.PW30/E Request for postmortem Ex.PW30/F1 Ownership documents and call details in to respect of the mobile phone of accused Ex.PW30/F4 Kamal Kishore Ex.PW30/G1 Ownership documents and the call details to in respect of the mobile phone of accused Ex.PW30/G4 Prem Singh Ex.PW30/H1 Ownership documents and the call details to in respect of the mobile phone of accused Ex.PW30/H4 Manoj Ex.PW30/I Sketch of iron rod i.e. Chheni Ex.PW30/J Copy of PCR Form St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 100 (98) Coming now to the microscopic evaluation of the evidence against the accused.
Promptness in registration of FIR:
(99) Promptness in registration of FIR rules out any possibility of tutoring, tempering and padding by the police. The Hon'ble Apex Court in the case of Bhag Singh Vs. State of Punjab reported in 1971 Cr.L.J. 903 has held that ".... The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story.
Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up..." In the present case Surat Singh the brother of the deceased Hoshiyar Singh who is residing just opposite the house of the deceased is the complainant who had made the PCR call on seeing the dead body of his brother lying on a cot. He at the first instance had expressed his suspicion upon Prem Singh the elder son of deceased Hoshiyar Singh since Prem Singh was having a property dispute with his father Hoshiyar Singh and had inflicted injuries upon his head which dispute was compromised but despite the same Prem Singh repeatedly threatening Hoshiyar Singh to kill on account of property dispute. It is evident from the record that the family of the deceased noticed his dead body at about 4:004:15 PM on which a PCR call was made. At about 4:40 PM information was sent to Police Station Adarsh Nagar pursuant to which DD No. 26A was lodged and police visited the spot. Thereafter, the statement of Surat Singh was St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 101 recorded wherein at the earliest opportunity Surat Singh highlighted the conduct of the accused Prem Singh who escaped from the spot as soon as the PCR call was made. On the basis of the said statement of Surat Singh the rukka was prepared at 6:30 PM and the FIR was registered at 6:50 PM which aspect has been duly proved by SI Om Prakash (PW6) and has gone uncontroverted.
(100) Therefore, I hereby hold that keeping in view the prompt registration of FIR wherein suspicion had been expressed upon the conduct of the accused Prem Singh by the complainant Surat Singh, the story put forward by the prosecution rules out the possibility of the same being cooked up later as an afterthought.
Motive / Previous & Subsequent conduct of the accused:
(101) The case of the prosecution is that there was a long standing property dispute between the accused Prem Singh and his deceased father Hoshiyar Singh on account of which Prem Singh had threatened Hoshiyar Singh on a number of occasions. Earlier in the year 2008 there was a dispute between Prem Singh and Hoshiyar Singh in which Prem Singh had thrashed his father Hoshiyar Singh who had even received injuries on his head for which he had to be treated and a police complaint was also lodged which was later on compromised on account of the intervention of family members and neighbours particularly the members of the Residents Welfare Association. According to the prosecution the motive for killing of St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 102 Hoshiyar Singh was the property dispute between the accused and the deceased.
(102) In so far as the Motive is concerned, I may observe that it has to be gathered from the surrounding circumstances and such evidence 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 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.
(103) 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.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 103
(104) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which has to be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(105) Applying these settled principles of law to the facts of the present case, the prosecution in order to support the aspect of motive has placed its reliance on the testimony of Surat Singh (PW1) uncle of the accused Prem Singh / younger brother of the deceased; Narender Singh (PW11) real brother of accused Prem Singh / son of the deceased; Ms. Kavita (PW12) real sister of the accused Prem Singh / daughter of deceased;
Satish Kumar (PW13) real brother of accused Prem Singh / son of the deceased; Mool Chand (PW16) a resident of the same area and President of RWA in the year 2008 who was instrumental in the compromise between the accused and the deceased; Jai Singh (PW20) another uncle of the accused Prem Singh/ elder brother of the deceased and Om Dutt Bhardwaj (PW25) another resident of the area who has proved the previous dispute of the year 2008 and the compromise arrived at between the parties. (106) According to the accused Prem Singh there was no dispute between him and his father whereas it is his other relatives including his uncles and brothers who are involved in the killing of his father and in order usurp the property which according to Prem Singh was purchased by him and hence they have diverted the blame upon him.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 104 (107) I have considered the rival contentions and given my careful consideration to the same. At the very Outset I may observe that in so far as the brothers of the deceased i.e. Surat Singh (PW1) and Jai Singh (PW20) are concerned they have their separate portions and have no interest in the property of happenings in the family of their brother. There is no history of animosity between them and Prem Singh and there is no reason why they would have falsely implicated accused Prem Singh. (108) Secondly in so far as the aspect of quarrel which took place in the year 2008 when the deceased received head injuries is concerned the same finds independent corroboration from the testimonies of the family members i.e. Surat Singh (PW1) & Jai Singh (PW20) brothers of the deceased; Narender Kumar (PW11) & Satish Kumar (PW13) sons of the deceased and the brother of accused Prem Singh and also Kavita (PW11) daughter of the deceased and sister of Prem Singh. Their testimonies find independent corroboration from the testimonies of other residents of area / neighbours of the deceased and the President of RWA namely Mool Chand (PW16) and Om Dutt (PW25) who have proved the fact that they had intervened in the said disputed and got the compromise affected between Hoshiyar Singh and Prem Singh. The accused Prem Singh does not controvert their testimonies nor has he been able to produce any material to show the history of animosity between him and his neighbours or any reason why the residents of the area i.e. Mool Chand and Om Dutt Bhardwaj would falsely implicate him. In fact Mool Chand has even gone to the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 105 extent that Prem Singh was a gentleman.
(109) Lastly during the examination of the family members of the deceased a specific suggestion has been put by the Ld. Defence Counsel that a large number of tenants were residing in the premises and the rent was being enjoyed by the other brothers of the accused Prem Singh i.e. Narender Kumar and Satish Kumar which fact has been admitted by Jai Singh (PW20). He has also stated that the plot of 200 square yards had been sold after the death of Hoshiyar Singh and has also explained that the marriage of Kavita, Narender and Satish was performed from the rent proceeds. This is a normal phenomena in any family when the family income from rent is used for setting the young unmarried members of the family and there is absolutely no reason why the brothers and sister of Prem Singh would be inimical towards him and that too when according to Prem Singh himself he has no dispute with anybody in the family and his family was peacefully living in the same house.
(110) Further, the previous conduct of the accused Prem Singh wherein he was having a dispute with his father Hoshiyar Singh and had even beaten him in which Hoshiyar Singh had received injuries on his head as proved by the various neighbours Mool Chand and Om Dutt Bhardwaj who had seen a bandage on the head of Hoshiyar Singh at the time of incident, become relevant. As per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 106 or preparation for any fact in issue or relevant fact. (111) 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. (112) 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 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.
(113) In the present case not only according to the complainant Surat Singh (PW1) but also according to the real sister of the accused Prem Singh namely Kavita (PW12) who had first seen the dead body of her father and St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 107 raised an alarm on which her uncle Surat Singh came, they had all seen the accused Prem Singh in the house at different points of time. Further, according to Kavita he had seen the accused Prem Singh moving in Verandah. It has been proved by Surat Singh that Prem Singh was present in the house but as soon as the PCR call was made, Prem Singh went away from the spot. Their testimonies find independent corroboration from the testimonies of Jai Singh (PW20) brother the deceased and neighbour Naresh Kumar (PW21). In fact Naresh Kumar has not only confirmed the frequent quarrels between Prem Singh and deceased Hoshiyar Singh but has also stated that on the date and time of the incident he had seen the accused Prem Singh sitting on the driver seat of Qualis vehicle and was giving accelerator and when he asked why he was giving accelerator, the accused replied that the vehicle was not starting whereas there were two other boys whom he had seen outside the room of Hoshiyar Singh (i.e. accused Manoj and Kamal Kishore) who were earlier talking to Prem Singh and when he (Naresh Kumar) asked Prem Singh about the said person he (Prem Singh) told that they were the tenants.
(114) This being the background, I hereby hold that the prosecution has been able to prove the Motive so attributed to the accused Prem Singh. I also hold that the previous conduct of the accused in giving beatings to his father Hoshiyar Singh and threatened him to kill and his subsequent conduct in slipping away from the spot as soon as the PCR call was made are strong pointers towards his guilt.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 108 Accused Prem Singh was the driver of Qualis bearing No. DL4CR6693:
(115) The case of the prosecution is that the vehicle Qualis bearing No. DL4CR6693 belonged to Surat Singh (PW27) the cobrother of the accused Prem Singh who had purchased the same in his name for his son Vijender (PW23). Since Prem Singh was unemployed hence he had given the said vehicle to Prem Singh and it was agreed that Prem Singh would give 50% share from the income derived from the same. In this regard the testimony of Vijender Singh (PW23) and his father Surat Singh (PW27) are most relevant. Both these witnesses have proved the aspect that it was the accused Prem Singh who on the date of incident used to drive the vehicle i.e. Qualis bearing No. DL4CR6693. In fact Vijender Singh (PW23) has proved the Registration Certificate of the said vehicle which is Ex.PW23/B and also the fact that he had taken the vehicle on Superdari. The testimonies of Vijender Singh (PW23) and Surat Singh (PW27) find due corroboration from the testimony of Prem Singh (PW21) who has deposed that on 10.09.2009 at about 3.15PM he saw that accused Prem Singh present with his vehicle Toyota Qualis in front of the room of deceased Hoshiar Singh and was pressing accelerator of his vehicle continuously and making loud sounds of the vehicle. Also, the witness Raj Pal (PW26) has proved that on 10.9.2009 he had to go to Balaji and at about 4:15 PM he made a call to the accused Prem Singh on his mobile no. 9818908444 asking for his Qualis vehicle. When this evidence was put to the accused Prem Singh in his statement under Section 313 Cr.P.C. he simply denied the same by saying St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 109 that it was incorrect. There is no reason to disbelieve the testimony of the cobrother of accused Prem Singh namely Surat Singh (PW27) and his son Vijender (PW23) in this regard.
(116) In view of the above, I hereby hold that at the time of the incident the accused Prem Singh used to drive the Qualis bearing no.
DL4CR6693 belonging to his cobrother Surat Singh (PW27) which was in the name of Vijender Singh (PW23) and he (Prem Singh) used to give 50% share of profit to Surat Singh for driving the same. Ocular Evidence / Last seen evidence:
(117) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately, in the present case there is no eye witness account.
The prosecution case rests upon the witnesses of last seen i.e. Kavita daughter of the deceased who had last seen her father alive at 1:00 PM when she was leaving for the Stitching Center. Before, coming to the testimonies of the witnesses, I may briefly discuss the law relating to Last Seen. (118) 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 110 5.5.2006).
(119) 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]. (120) 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 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....."
(121) 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 111 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 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. ..." (122) 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, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 112 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.
(123) Now applying the settled principles of law to the facts of the present case, it is evident that the last person who had seen the deceased alive is Ms. Kavita (PW12) the daughter of the deceased who was doing the stitching course at Kewal park Extension. She had last seen her father Hoshiyar Singh alive on 10.9.2009 at 1:00 PM while she was going for her stitching course and her father was cleaning the roof as rainy water had logged on the roof. When she returned back at around 3:454:00 PM she saw her father lying on a cot (chaarpai) and covered with a bed sheet and when she tried to woke him up she suspected some mishappening on which she raised an alarm and on hearing the same her other relatives gathered. This apparently shows that something had happened during this period 1:00 PM to 3:45 PM resulting into the death of the deceased. The relevant portion of the testimony of Kavita (PW12) is as under: St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 113
"........ I am a housewife. In the year 2009 I used to go "Silai center" at Kewal Park extension. I have three brothers and two sisters including me. My elder sister Anita was married with Ramesh Kataria in the year 1995/1996. Deceased Hoshiyar Singh was my father. My elder brother Prem Singh, who is present in the court today( correctly identified by the witness) had quarreled with my father in the year 2008 and gave beating to my father who received head injury and my father received stitches on his head. Thereafter quarrel also used to take place with my father and accused Prem Singh. On 09.09.2009 I went to Silai Center at around 1PM and my father was alright and he was cleaning the roof as rainy water collected on the roof. I returned back from the center around 3:454PM. I saw my father was lying on a cot and bed sheet was on his body. I gave call to my father but there was no response from him. I took of the bed sheet from the body of my father but he was not responding. I felt some suspicious and presumed that he had died. I started weeping. Persons of the locality collected there. Our relatives collected at our house. My uncle Jai Singh and his son took my father to Khera Nursing Home. On checking in Khera Nursing Home, he was declared brought dead. My uncle Surat Singh came from Chandigarh and he got conducted police proceedings. When I returned back from the center I found my brother Prem Singh moving in the varanda and his vehicle was parked outside the room of my father.
At this stage Ld. APP seeks permission to put some leading questions to the witness as she is not giving the complete details.
Heard. Permitted.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 114
I do not recollect whether the date of incident was 09.09.2009 or 10.09.2009. It is wrong to suggest that I had told the police that my brother Prem Singh had murdered my father. Confronted with portion A to A of statement EXPW 12/A where it is so recorded. It is correct that after arrival of police, my brother Prem Singh had left the house....."
(124) The testimony of Kavita (PW12) on the aspect of last seeing her father alive at around 1:00 PM when she left for the stitching center and of seeing him lifeless at around 3:454:00 PM when she returned, is clear and specific. She is also very categorical on the aspect of seeing Prem Singh moving about in the verandah and his vehicle being parked outside the room of her father and her testimony finds due corroboration from the testimony of her uncle Surat Singh (PW1) who on hearing the cries of Kavita rushed towards her house and found Hoshiyar Singh lying on a cot with injuries on his body on which he was taken to Khera Nursing Home where he was declared dead. The relevant portion of the testimony of Surat Singh (PW1) is as under:
"....... On 10.09.09 I was returning back at about 4:00 - 4:15 pm with my tempo, I saw that my niece Kavita was weeping loudly. I along with my brother Jai Singh went to the house of my elder brother Hoshiar Singh. I saw that my brother Hoshiar Singh was lying on a cot and a bed sheet was lying over his body. I removed that bed sheet. I found that he was not talking. I removed my brother to Khera Clinic. Doctor told me that he was St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 115 already expired. We removed him back and got lying on the same cot. I made a call on 100 number to police. That mobile was in the name of my brother Rattan Singh and the same was used by me nephew Rajiv. I took the mobile from Rajiv and then made a call on 100 number to police. The number of that mobile was 9210000881. There was a quarrel between my brother Hoshiar Singh and his son Prem Singh on the pretext of property. One court case was also pending between them. Prem Singh quarreled and gave beatings to Hoshiar Singh on many occasions. Prem Singh also threatened Hoshiar Singh to kill. When I made the phone to the police on 100 number at that time Prem Singh was there but after making the call he ran away from the spot. Police of 100 number reached at the spot and subsequently local police also reached there. Police recorded my statement. My statement is Ex.PW1/A bearing my signatures at point A. Police seized one blood stained bed sheet after turning it into a cloth parcel and sealed it with the seal of MK and taking into possession vide memo Ex.PW1/B bearing my signatures at point A. Police also seized blood stained towel of yellow colour and one Baniyan and turned into a cloth parcel sealed with the seal of MK and taken into possession vide memo Ex.PW1/C bearing my signatures at point A. Police also seized Qualis vehicle DL 4CR 6693 of white colour which was lying standing in the gali in front of House No. B43, Kewal Park vide memo Ex.PW1/D bearing my signature at point a. Dead body of my brother was removed to BJRM Hospital for postmortem. Police recorded by statement.
On 11.09.09 I went to Mortuary BJRM Hospital and identified the dead body of my brother Hoshiar Singh. My statement was recorded vide St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 116 Ex.PW1/E bearing my signature at point A. After postmortem dead body was handed over to me vide memo Ex.PW1/F bearing my signatures at point A. On 12.09.09 I came to know that accused Prem Singh was present at Bhadola Shiv Mandir. I informed to the police. I along with police reached there. At my instance accused Prem Singh was arrested there vide memo Ex.PW1/G bearing my signature at point A and his personal search was conducted vide memo Ex.PW1/H bearing my signature at point A. Prem Singh was interrogated and Prem Singh made his disclosure statement and told that there were two other associates who were also involved i the commission of crime and he can got arrested them from Alipur. I do not remember other contents of the disclosure statement of accused Prem Singh. Disclosure statement is Ex.PW1/I bearing my signature at point A. Accused Prem Singh led us to Alipur. Accused Prem Singh got arrested accused Manoj vide memo Ex.PW1/J1 and his personal search conducted vide memo Ex.PW1/J2 bearing my signature at point A and accused Kamal Kishore was arrested vide memo Ex.PW1/K1 and his personal search was conducted vide memo Ex.PW1/K2 bearing my signature at point A. Both the accused were interrogated and they made their disclosure statement vide memo Ex.PW1/L and Ex.PW1/M bearing my signature at point A. We all returned back. On the way I was left near ByePass.
On 13.09.2009 police brought accused Prem Singh to the house of deceased Hoshiar Singh. I was present there. Accused led the police party inside the room and pointed out towards a screw driver and a lathi....."
Today I do not remember further investigations conducted on 13.09.2009. I do not St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 117 remember wheat else was recovered on that day. The lathi was measured by the police. It was 5 or 5.25 feet. It was having eight knots (Pour). It was turned into a cloth parcel and sealed with the seal of MKC. It was taken into possession vide memo Ex.PW1/N bearing my signature at point A. On 16.6.09 police along with Kamal Kishore and Manoj came to the house of my brother deceased Hoshiar Singh. Manoj pointed out one place where the scrap material was lying.
Defence counsels are objecting to each and every word uttered by the witness and submitting that Addl. PP is not apprising the words uttered by the accused.
In my presence accused Manoj pointed out a sweater of blue colour at a broken room garbage (Kabara) of deceased Hoshiar Singh, my brother. He further disclosed that by using this sweater. It was sealed in a cloth parcel with the seal of MK. I signed the seizure memo. Witness identifies his signature on seizure memo at point A. Seizure memo is Ex.PW1/O. On the same day accused Kamal Kishore from the corner of the same room took out an iron chenni having length of about 1.5 feet. He further disclosed that he used this iron chenni in the murder of Hoshiar Singh. Police took into possession iron Chenni. It was sealed in a cloth parcel. I signed the seizure memo. Witness identifies his signatures at point A. Seizure memo is Ex.PW1/P. On 18.09.09 I went to police station and handed over photocopy of two complaint which were written by my deceased brother against accused Prem Singh dated 31.5.08 and 22.07.08. I also handed over one copy of compromise. Police seized all three documents. I signed St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 118 the seizure memo. Witness is shown the seizure memo and photocopy of complaints. Witness identifies his signature at seizure memo at point A. Seizure memo is Ex.PW1/Q. The photocopy of compromise is mark PW1/X, it also bears my signature at point B. Photocopy of complaint dated 22.07.08 is mark Ex.PW1/X1 and photocopy of complaint dated 31.5.2008 is mark Ex.PW1/X2. All the photocopies bear my signature at point A. Police recorded my statement for about 89 times.
On 10.10.09 police officials came to the house of my deceased brother along with draftsman. Draftsman prepared site plan.
On 19.11.09 police recorded my statement. I told to the police on phone that Prem Singh killed his father Hoshiar Singh.
The vehicle Qualis bearing no. DL4CR6693 is owned by son of sister in law of accused Prem Singh.
This vehicle had been used by accused Prem Singh.
Accused Prem Singh disclosed at the time of recovery of lathi that if was used in the murder of Hoshiar Singh. Witness correctly identified accused Prem Singh present in the court today. Witness wrongly identified accused Manoj as Kamal and further wrongly identified accused Kamal as Manoj.
Question: Can you explain about wrong identification of accused Manoj and Kamal (objected by Ld. Defnece Counsel).
Ans: I have seen accused persons for identification in the Court after one and half year. Accused Manoj and Kamal are now more healthy from the date of their arrest. Therefore, I could not identify them......"
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 119 (125) Both Kavita (PW12) and Surat Singh (PW1) have been subjected to sustained crossexamination but they stood their version on material aspects though the testimony of Kavita indicates that she has also tried to save her brother Prem Singh. Both of them have in their testimonies stood by their versions that at that time Prem Singh was in the house and his vehicle was parked outside the house and as soon as the PCR call was made he left the premises. This conduct of Prem Singh is certainly not above suspicion and no explanation is forthcoming for this act of Prem Singh in leaving the house on the discovery of the dead body of Hosiyar Singh. The accused Prem Singh is the eldest son of the deceased Hoshiyar Singh and the defence of Prem Singh is that there was no dispute or differences between him and his father. Going by his version, if there were no disputes between him and his father why then did he leave the spot when his sister Kavita raised an alarm. Being the eldest son was it not his duty to first shift his father to the hospital. Rather, he chose to escape from spot and it is this which raises a serious suspicion on his conduct. When the incriminating evidence was put to him, he simply denied the same.
(126) The testimonies of Kavita (PW12) and Surat Singh (PW1) find due corroboration from the testimony of independent witness namely Naresh Kumar @ Bandhu (PW21) who is a neighbour of the deceased. Naresh Kumar has not only proved the previous quarrel between the accused Prem Singh and deceased Hoshiyar Singh but also stated that on 10.09.2009 at about 3.15 PM he saw the accused Prem Singh present with his vehicle St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 120 Toyota Qualis in front of the room of deceased Hoshiar Singh and was pressing accelerator of his vehicle continuously and making the sound of vehicle loud (gadi ko race de raha tha). Here, it may be noted that as per the postmortem report the death of the deceased took place around the same time (i.e. 3:00 to 4:00 PM). According to Naresh Kumar when he asked Prem Singh the reason for the same he replied that his vehicle was not starting. He has further stated that he also saw two young boys coming out from the room of Hoshiar Singh and on being asked Prem Singh told him that they were the tenants. Naresh Kumar (PW21) has identified these two boys i.e. accused Kamal Kishore and Manoj Kumar. There is no reason to disbelieve the testimony of Naresh Kumar since the accused Kamal Kishore and Manoj were not known to him previously nor there is any reason for Naresh Kumar to falsely implicate them. He has proved that after the incident he had seen the accused Manoj and Kamal Kishore on 16.9.2009 when they were brought to the house of the deceased by the police and the recovery of iron rod looks like Chheni and sweater had taken place in his presence. The relevant portion of his testimony is as under:
"....... I knew Hoshiar Singh being my neighbour. I am having a business of wood in cremation ground, Gopal Nagar, Azadpur, Delhi. I knew accused Prem Singh S/o Hoshiar Singh who is present inthe court today. (Witness correctly identified accused Prem Singh present in the court). There were quarrel took place several times between accused Prem Singh and deceased Hoshiar Singh due to the property. Accused Prem Singh St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 121 used to abuse his father and also used to give beating him and demanded the property in his favour.
On 10.09.2009 at about 3.15PM I was going to my shop situated at F27,Gopal Nagar from my house and it was raining and I saw that accused Prem Singh was present with his vehicle Toyota Qualis in front of the room of deceased Hoshiar Singh and accused Prem Singh was pressing accelerator of his vehicle continuously and making the sound of vehicle loud (gadi ko race de raha tha). I asked him about the reason for the same. He replied that his vehicle was not starting. Meanwhile I saw that two young boys were coming out from the room of his father Hoshiar Singh. I asked him about those boys. He replied that they were the tenants. Thereafter I went towards my shop at Gopal Nagar. In the evening time I came to know that Hoshiar Singh was murdered.
On 16.09.2009 I was called by the police at the house of Hoshiar Singh and I went there and saw that two persons namely Manoj and Kamal were in the custody of police. Police told me that they have committed the murder of Hoshiar Singh. I identified both the persons as the persons who entered in the room of Hoshiar Singh. At the instance of accused Kamal one iron rod looks like "Chheni" was recovered from the corner of the room of Hoshiar Singh. Police sealed the iron rod in a cloth pullanda with the seal of MK. At the instance of accused Manoj one sweater was recovered from the garbage outside the gate of the house and the same was also sealed in a cloth pullanda by the police with the seal of MK. Accused Prem Singh present in the court today and witness has correctly identified accused. Accused Manoj and Kamal are not present in the court St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 122 today.
At this stage Ld. Addl. PP seeks permission to cross examine the witness as he is resiling from his earlier statement and not identifying the accused Manoj and Kamal Kishore.
Heard. Permission is granted.
XXXXX by Ld. Addl. PP for the state.
It is correct that police examined me on 10.09.2009 and on 16.09.2009 and recorded my statement on the respective dates. It is correct that on 16.09.2009 I have stated to the police that the IO brought Manoj and Kamal Kishore at the spot and I identified both persons Manoj and Kamal Kishore who came out from the room of deceased Hoshiar Singh on 10.09.2009 where accused Prem Singh was giving race to his vehicle.
At this stage accused Manoj and Kamal Kishore are shown to the witness and after seeing the both accused carefully witness states at at the time of incident the persons who came out of the room of Hoshiar Singh were thin and these accused have now gained weight. The witness has correctly identified the accused Manoj and Kamal Kishore by pointing out towards them by their names....."
(127) Naresh Kumar (PW21) is a neighbour and his presence at the spot is natural and probable. It is equally probable that his attention was drawn towards the house of the deceased when Prem Singh was pressing the accelerator of his vehicle and making noises when he asked Prem Singh the reason for the same. The testimony of Naresh Kumar again finds due St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 123 corroboration from the testimony of Jai Singh (PW20) the younger brother of deceased Hoshiyar Singh and uncle / chacha of the accused Prem Singh and is also a resident of the adjoining premises. Jai Singh has confirmed that he had seen the accused Prem Singh along with two boys in front of the room of Hoshiyar Singh near the Qualis vehicle of Prem Singh. The relevant portion of his testimony is as under:
"....... Deceased Hoshiyar Singh was my elder brother. Prem Singh accused present in the court today is the son of Hoshiyar Singh. Witness is correctly identified accused Hoshiyar Singh. There was a quarrel took place between accused Prem Singh and Hoshiyar Singh about the property. Prem Singh gave beatings to his father Hoshiyar Singh on many times due to this reason. I tried to make Prem Singh to understand. On 10.09.2009 at about 2:30 PM, I was present on the balcony(chaja) of my house, I saw that my nephew accused Prem Singh was talking with two boys just in front of the room of my brother Hoshiyar Singh near the vehicle, Qualis of Prem Singh. After some time Prem Singh boarded in his Qualis vehicle and other two boys who were talking with Prem Singh entered in the room of my brother Hoshiyar Singh. I was thinking that those boys came there for tenancy purpose and there was rain so I went inside my house. At about 4:15 PM I heard the crises of my niece Kavita, D/o Hoshiyar Singh. Thereafter I came in the gali and I saw that my brother Hoshiyar Singh was lying on his cot in his room. I along with Surat Singh and other persons took Hoshiyar Singh to Dr. Khera Nursing home and they declared him dead there. Thereafter we returned back to St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 124 the house and dead body of Hoshiyar Singh was kept on the same cot. We made call at 100 number and we saw that Prem Singh, accused ran away from there. Police of 100 number came at the spot and police of PS Adarsh Nagar also came there. Police from the crime team official also reached there and they inspected the dead body of Hoshiyar Singh and they also took the photographs of the dead body. Police seized the vest (baniyan), towel and one blood stained bed sheet from the spot. Police seized the bed sheet vide seizure memo already EX PW 1/B bearing my signatures at point B. Police also seized baniyan and towel vide seizure memo already EX PW 1/C bearing my signatures at point C. On the next day, postmortem was conducted. I identified the dead body of my brother Hoshiyar Singh vide EX PW 20/A bearing my signatures at point A. After postmortem dead body was handed over to us vide already EX PW 1/F bearing my signatures at point B. I can identify both the persons who were talking with accused Prem Singh and entered in the room of Hoshiyar Singh.
At this stage, witness has correctly identified all the accused person Prem Singh, Kamal Kishore and Manoj Kumar by pointing out towards and by names. Witness has identified the accused Kamal Kishore and Manoj Kumar as the same persons who were talking with accused Prem Singh and entered in the room of Hoshiyar Singh....."
(128) It is evident as above that Jai Singh (PW20) has duly identified the accused Kamal Kishore and Manoj in the Court and has testified that when they were brought to the house of Hoshiyar Singh by the Police they St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 125 were not muffled and he had identified the said boys as the persons whom he had seen talking to Prem Singh at the time of the incident. Again, this Jai Singh is not previously known to the accused Manoj Kumar and Kamal Kishore, nor there is any history of animosity and hence there is no reason why would he falsely implicate the accused. His testimony is probable, credible and natural.
(129) When the testimony of Jai Singh (PW20) and Naresh Kumar (PW21) were put to the accused Kamal Kishore and Manoj, they simply denied the same and offer no explanation as to why theses witnesses would have falsely implicated them. I may observe that in so far as Jai Singh (PW20) is concerned he is the real brother of the deceased but in so far as the accused Naresh Kumar (PW21) is concerned he is not related to either of the parties and his attention was attracted to the spot when he found Prem Singh giving accelerator to the vehicle and it was then that he had seen the other two boys i.e. Kamal Kishore and Manoj. The presence of both these witnesses Jai Singh and Naresh Kumar at the spot is natural and probable being residents of the same area i.e. adjoining properties (Jai Singh is real brother of the deceased). The incident had taken place during afternoon hours and hence again there is no possibility of there being a case of mistaken identity. The witnesses are most consistent and specific in their depositions.
(130) From the joint reading of the oral testimonies of the witnesses Kavita, Suat Singh, Jai Singh and Naresh not only the presence of the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 126 accused Prem Singh, Kamal Kishore and Manoj stand established at the spot at the time when the killing of Hoshiyar Singh was executed but also the subsequent arrest of the accused, recoveries of the articles/ weapon used in the killing of Hoshiyar Singhi.e. Danda, sweater and iron rod looking like chenni stand established.
(131) Further, it is evident from the postmortem report Ex.PW10/A that the postmortem examination was conducted on 11.9.2009 at 3:15 PM (time of starting of Postmortem) and the Autopsy Surgeon Dr. K. Goyal (PW10) has opined the time of death as 2324 hours thereby establishing that the death of the deceased Hoshiyar Singh had occurred between 3:00 to 4:00 PM on 10.9.2009. The presence of all the accused i.e. Prem Singh, Kamal Kishore and Manoj stands established from the testimonies of the various witnesses as discussed herein above. I may observe that the accused Prem Singh was residing in the same premises as that of the deceased Hoshiyar Singh but the accused Kamal Kishore and Manoj are residents of Alipur. The onus of proving as to what they were doing at the spot at the time of incident, now shifts upon the accused but they have not been able to explain their presence at the spot.
(132) The accused are the best persons who could have offered an explanation with regard to their presence at the spot without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 127 in Section 106 of the Evidence Act to meet exceptional cases in which it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.
(133) There is a proximity between the last seen and the time of death of the deceased in as much as the deceased died on 10.9.2009 between 3:00 PM to 4:00 PM and the accused Prem Singh, Kamal Kishore and Manoj Kumar were seen in front of the house of the deceased Hoshiyar Singh during the said period and the accused failed to explain what they were doing at the spot at the time of the incident, which is highly determinative of the guilt of the accused Prem Singh, Kamal Kishore and Manoj Kumar.
Medical Evidence:
(134) Dr. K. Goyal (PW10) has proved the Postmortem report of the deceased which is Ex.PW10/A according to which the following external injuries were observed on the body of the deceased:
1. Contused abrasion 5 x 4 cm on right lateral canthus, few scratch abrasions over right molar region, abrasion 2 x 1 cm between lower lip & chin, 2 x 1 cm abrasion just left and below of chin, 1.5 x 0.75 cm just below of middle of right mandibular area, 3 linear parallel grazing each 2 x 0.75 cm obliquely placed about 0.75 cm apart each St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 128 other over antereomedial aspect of upper side of right arm just below axilla, scratch abrasion 1 x 0.2 cm over left front of base of neck about 2.5 cm left to midline. Few abrasions scattered over both knee joints & legs at places.
2. Massive diffuse bruising reddish in colour all over both groins inguinal regions, both iliac fossa quadrants & hypogestrium in total area 40 x 25 cm transversely.
3. Multiple grazed abrasions with contusions scattered all over front and medial aspects of upper 3 / 4 of both thighs.
4. Laceration of size 3 x 1.25 cm over dorsum of right hand.
5. Both lips with surrounding area bruised externally as well as internally against the teeth.
(Here, I may observe that the above injuries from serial no. 1 to 5 establish the fact that the deceased was thrown to the ground face down and then dragged after he was gagged and only then the abrasions and parallel grazing on the front side of the body from face to legs could have been caused).
6. Incised wound 3 x 1 cm till skin deep over ventral aspect of penile stem.
7. Cut penetrating wounds, two in numbers, over right scrotum, one of them is at upper side of size 2 x 0.5 cm just right to midline and another one is at lower side 1.5 x 0.5 cm. On exploration both wounds are communicated to each other. Clots present in scrotum. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 129 Right testis is bruised with grazing over medial side. Both wounds are about 4.5 cm apart each other.
(135) The Autopsy surgeon has proved having opined that injury no. 1 to 4 (i.e. Contused abrasion on right lateral canthus, few scratch abrasions over right molar region, abrasion between lower lip & chin, abrasion just left and below of chin, just below of middle of right mandibular area, 3 linear parallel grazing obliquely placed apart each other over antereomedial aspect of upper side of right arm just below axilla, scratch abrasion over left front of base of neck left to midline; few abrasions scattered over both knee joints & legs at places; massive diffuse bruising reddish in colour all over both groins inguinal regions, both iliac fossa quadrants & hypogestrium in total area 40 x 25 cm transversely; multiple grazed abrasions with contusions scattered all over front and medial aspects of upper 3 / 4 of both thighs; Laceration over dorsum of right hand) were caused by blunt force impact; injury no.5 (both lips with surrounding area bruised externally as well as internally against the teeth) was caused by pressure over mouth consistently by grip to ward off cries; injury no.6 (Incised wound till skin deep over ventral aspect of penile stem) was caused by sharp edged weapon and injury no.7 (cut penetrating wounds, two in numbers, over right scrotum, one of them is at upper side just right to midline and another one is at lower side, Right testis bruised with grazing over medial side) was caused by sharp, cutting penetrating weapon.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 130 (136) He has also proved that Chest, liver and pelvic injuries were caused by blunt force impact and all injuries were collectively consistent with assault and the cause of death is combined effect of shock and hemorrhage due to chest, liver and pelvic injuries and vasovegal shock due to testicular injuries which are collectively sufficient to cause death in ordinary course of nature.
(137) In so far as the weapons of offence are concerned the Autopsy Surgeon has proved that the injuries No. 6 and 7 could be caused by the iron rod in the form of long chisel with sharp flat edge which opinion is Ex.PW10/B. He has been crossexamined by the Ld. Defence Counsels and nothing much has come out of the same and the accused have not been able to controvert the same.
(138) The witness Dr. K. Goyal has proved that proved that the time of time since death was about 2324 hours which is compatible to the version given by the public witnesses of last seen particularly the daughter of the deceased namely Kavita (PW12) who has proved that she had returned at about 3:454:00 PM when the deceased was found dead. (139) Further, the medical evidence also compatible and confirms the account given by the public witnesses who had seen the accused Prem Singh outside the house at about 3:15 PM giving accelerator to the Qualis vehicle which he did to ensure that the voices from side should not be heard outside.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 131 (140) Also, the nature of injuries particularly the injury no.5 which was caused by pressure over mouth consistently by grip in order to ward off the cries and considering the injuries caused by sharp and blunt objects, it is not possible for one man to cause such injuries and certainly there is involvement of two or more persons. The deceased Hoshiyar Singh was a senior citizen and could not have resisted the assault. (141) In view of the above, I hereby hold that the medical evidence is compatible to the eye witness account and other evidence on record which is a strong pointer towards the guilt of the accused.
Forensic Evidence:
(142) Sh. Indresh Kumar Mishra (PW22) has duly proved the biological and serological reports in respect of the exhibits sent to him which reports are Ex.PW22/A and Ex.PW22/B according to which human blood of B Group was found on the bed sheet, towel baniyan, shirt, pants and underwear of the deceased thereby proving that the blood group of the deceased was 'B'. Though the sweater (got recovered by the accused Manoj) which was used for gagging the mouth of the deceased and the weapon of offence i.e. iron rod looking like a Chheni (got recovered by the accused Kamal Kishore) do not show the presence of ABO Grouping but the presence of blood of human origin on the same stands established.
Therefore, I hereby hold that the forensic evidence on record is compatible to the prosecution case and is a strong pointer towards the guilt of the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 132 accused.
Electronic Evidence:
(143) The case of the prosecution is that in addition to the oral testimonies of the various witnesses, the electronic evidence on record confirms the presence of the accused Prem Singh, Kamal Kishore and Manoj Kumar at the spot at the time of incident and also proved that they were regularly in touch with the accused Prem Singh. In this regard I may observe that though the prosecution has examined the family members of accused Kamal Kishore and Manoj Kumar to prove the user of the mobile phones but they have turned hostile which is only in order to save Kamal Kishore and Manoj from penal consequences. However, Ashok Kumar (PW24) who is an independent witness has proved that he has given his identity proof to his friend Mohit (brother of accused Manoj) who was in need of a mobile connection. This Mohit the brother of accused Manoj has also been examined as PW17 who has confirmed and corroborated the testimony of Ashok Kumar (PW24) to the extent that he had taken the ID proof of Ashok Kumar and obtained SIM No. 9278453468 but has turned hostile on the aspect that he had given the said SIM to his brother Manoj for using the same. No explanation is forthcoming to the aspect, that if it was not Manoj then who was it who was using this mobile phone. This being so, it is writ large that this aspect of user of above SIM by Manoj is being concealed only to help Manoj and save him from St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 133 penal consequences. Even the father of Kamal Kishore namely Ganga Ram (PW18) has turned hostile on the aspect that he had given the mobile phone of accused Kamal Kishore to the police but the Customer Application Form duly proved by the service provider has confirmed that the SIM has been issued in his name and he was in regular touch / contact with the accused Manoj and Prem Singh.
(144) The prosecution on its behalf has examination the Nodal Officers Gaganjit Singh (PW7) and Tarun Khurana (PW8) who have proved the Customer Application Forms and the Call Detail Records of the various mobile phone of the accused persons. Gaganjit Singh Sidhu (PW7) Nodal Officer from Tata Teleservices Ltd. has proved the customer application form of mobile No. 9210887579 which was alloted to Kamal Kishore S/o Ganga Ram, R/o 380 near Nala Wali Gali, Nehru Enclave, Village Alipur, Delhi, which is Ex.PW7/A, election identity card in support of the address which is Ex.PW7/B and call details of the said number from 08.09.2009 to 11.09.2009 which is Ex.PW7/C. This clinches the entire issue and despite the fact that Ganga Ram (PW18) has turned hostile on the aspect of having handed over the phone to the police, it stands established that the accused Kamal Kishore was using the mobile No. 9210000881.
(145) Gaganjit Singh (PW7) has also proved the customer application form in respect of mobile No. 9278453468 (used by accused Manoj) which was in the name of Ashok Kumar S/o Sh. Krishan Kumar, R/o A54, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 134 Subhash Nagar, Kanpur, UP having local address House No. 2044, Alipur, Godhi, Delhi36 which customer application form is Ex.PW7/D; copy of driving licence in support of the address which is Ex.PW7/E and the call details of the said number from 07.09.2009 to 11.09.2009 which are Ex.PW7/F. (146) Tarun Khurana (PW8) Nodal Officer from Bharti Airtel Ltd. has proved the customer application form of mobile No. 9818908444 which was alloted to Surat Singh S/o Hari Singh, R/o 373, Nirankari Colony Delhi which customer application form is Ex.PW8/A; copy of the election identity card in support of the address which is Ex.PW8/B and the call details of the said number from 07.09.2009 to 10.09.2009 which is Ex.PW8/C. This Surat Singh (PW27) is the cobrother of the accused Prem Singh. He has admitted that on 23.9.2009 the Investigating Officer seized the mobile phone bearing No. 9818908444 which was produced before police by Rajender @ Babu S/o Prem Singh though he has turned hostile that mobile No. 9818908444 had been seized by the police in his presence vide memo Ex.PW27/PX1. He has admitted his signatures on the said seizure memo at point X. When this Court asked as to when he put his signatures on the seizure memo he casually responded that he does not remember Karwa liye honge, mujhe yaad nachin. This confirms that it was on account of his close relationship with the accused Prem Singh that he has turned hostile but his signatures on the seizure memo proves that the mobile St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 135 phone which was handed over to the police by the son of accused Prem Singh namely Rajender @ Babu, was being used by the accused Prem Singh but this will not affect the prosecution case since the factum of the user of the mobile No. 9818908444 stands confirmed from the testimony of independent witness namely Raj Pal (PW26) who is a also a Taxi Driver by profession and has proved having made a call to the accused Prem Singh at about 4:15 PM on the date of incident on his mobile No. 9818908444 as he wanted to go to Balaji and wanted the Qualis of Prem Singh. He has proved that the accused Prem Singh picked up the phone and told him that his vehicle was not spared and thereafter disconnected the phone immediately (harbarahat mein phone kaat diya).
(147) This being the background, I hereby hold that at the time of the incident the accused Prem Singh was using the mobile No. 9818908444, the accused Kamal Kishore was using the mobile No. 9210887579 and the accused Manoj was using the mobile No. 9278453468. (148) I have examined the Call Details Record of the various mobile phones and it is evident that all the accused including were regularly in touch with each other. I now proceed to analyze the call details record of each of the accused individually.
(149) Coming first to the accused Prem Singh who was using the mobile No. 9818908444, the relevant entries are as under: St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 136
Sr. Calling No. Called No. Date Time Seconds Location No.
1. 9818908444 9278453468 7.9.09 10:09:39 42 Model Town (Prem Singh) (Manoj)
2. 9818908444 9278453468 7.9.09 13:43:16 29 Commercial complex (Prem Singh) (Manoj) Azadpur
3. 9818908444 9278453468 8.9.09 10:26:46 48 Commercial complex (Prem Singh) (Manoj) Azadpur
4. 9818908444 9278453468 9.9.09 10:43:22 58 Commercial complex (Prem Singh) (Manoj) Azadpur
5. 9818908444 9278453468 9.9.09 12:27:21 24 Commercial complex (Prem Singh) (Manoj) Azadpur
6. 9818908444 9278453468 9.9.09 13:33:36 20 Commercial complex (Prem Singh) (Manoj) Azadpur
7. 9818908444 9278453468 9.9.09 17:05:45 303 Commercial complex (Prem Singh) (Manoj) Azadpur
8. 9818908444 9278453468 9.9.09 21:13:27 73 Commercial complex (Prem Singh) (Manoj) Azadpur
9. 9278453468 9818908444 10.9.09 9:42:38 1 Commercial complex (Manoj) (Prem Singh) Azadpur
10. 9818908444 9278453468 10.9.09 11:08:05 65 Commercial complex (Prem Singh) (Manoj) Azadpur
11. 9818908444 9278453468 10.9.09 12:08:48 29 Commercial complex (Prem Singh) (Manoj) Azadpur
12. 9818908444 9278453468 10.9.09 12:18:30 26 Commercial complex (Prem Singh) (Manoj) Azadpur
13. 9818908444 9278453468 10.9.09 13:39:30 12 Commercial complex (Prem Singh) (Manoj) Azadpur
14. 9818908444 9278453468 10.9.09 13:40:21 25 Commercial complex (Prem Singh) (Manoj) Azadpur (150) The aforesaid call details record of the mobile phone No. 9818908444 which was in the name of Surat Singh (cobrother of the accused Prem Singh) but actually used by the accused Prem Singh, St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 137 conclusively establishes that he was in regular touch with the accused Manoj Kumar throughout the date of incident and couple of days earlier.
Further, on the date of incident i.e. 10.09.2009 the accused Prem Singh was present in the area covered by the tower installed at Commercial Complex Azadpur (covering the area of Adarsh Nagar wherein the incident took place) where he remained from 9:42:38 onwards till 16:30:08. (151) Coming next to the accused Manoj Kumar who was using the mobile No. 9278453468, the relevant entries are as under:
Sr. Calling No. Called No. Date Time Seconds Location No.
1. 9818908444 9278453468 7.9.09 10:09 41 Azadpur (Prem Singh) (Manoj)
2. 9818908444 9278453468 7.9.09 13:43 30 Azadpur (Prem Singh) (Manoj)
3. 9818908444 9278453468 8.9.09 10:26 48 Azadpur (Prem Singh) (Manoj)
4. 9818908444 9278453468 9.9.09 10:43 59 Azadpur (Prem Singh) (Manoj)
5. 9818908444 9278453468 9.9.09 12:27 24 Azadpur (Prem Singh) (Manoj)
6. 9818908444 9278453468 9.9.09 13:33 20 Azadpur (Prem Singh) (Manoj)
7. 9818908444 9278453468 9.9.09 17:05 304 Azadpur (Prem Singh) (Manoj)
8. 9818908444 9278453468 9.9.09 21:13 73 Azadpur (Prem Singh) (Manoj)
9. 9210887579 9278453468 10.9.09 10:49 33 Azadpur (Kamal (Manoj) Kishore)
10. 9210887579 9278453468 10.9.09 11:01 8 Azadpur (Kamal (Manoj) Kishore) St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 138
11. 9818908444 9278453468 10.9.09 11:07 65 Azadpur (Prem Singh) (Manoj)
12. 9818908444 9278453468 10.9.09 12:08 29 Azadpur (Prem Singh) (Manoj)
13. 9818908444 9278453468 10.9.09 12:18 26 Azadpur (Prem Singh) (Manoj)
14. 9818908444 9278453468 10.9.09 13:39 11 A17, Panchwati, (Prem Singh) (Manoj) Adarsh Nagar
15. 9818908444 9278453468 10.9.09 13:40 25 Village Bhadola, (Prem Singh) (Manoj) Adarsh Nagar
16. 9210887579 9278453468 10.9.09 13:50 60 Village Bhadola, (Kamal (Manoj) Adarsh Nagar Kishore)
17. 9210887579 9278453468 10.9.09 14:00 8 A17, Panchwati (Kamal (Manoj) Adarsh Nagar Kishore)
18. 9210887579 9278453468 10.9.09 14:32 17 A17, Panchwati (Kamal (Manoj) Adarsh Nagar Kishore)
19. 9210887579 9278453468 10.9.09 14:48 46 13, Model Town (Kamal (Manoj) Kishore)
20. 9278453468 9210887579 10.9.09 15:05 16 A17, Panchwati, (Manoj) (Kamal Adarsh Nagar Kishore)
21. 9210887579 9278453468 10.9.09 15:10 574 A17, Panchwati (Kamal (Manoj) Adarsh Nagar Kishore)
22. 9210887579 9278453468 10.9.09 15:37 28 A17, Panchwati (Kamal (Manoj) Adarsh Nagar Kishore)
23. 9278453468 9210887579 10.9.09 15:45 163 Village Bhadola, (Manoj) (Kamal Adarsh Nagar Kishore) (152) The aforesaid call details record of the mobile phone No. 9278453468 which is in the name of accused Ashok Kumar but actually St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 139 used by accused Manoj Kumar conclusively establishes that he was in regular touch with the accused Kamal Kishore and Prem Singh throughout the date of incident and couple of days earlier. Further, on the date of incident i.e. 10.09.2009 the accused Manoj Kumar was present in the area covered by the tower installed at Model Town and Adarsh Nagar (covering the area of Adarsh Nagar wherein the incident took place) where he remained from 12:08 onwards till 15:45.
(153) Coming now to the accused Kamal Kishore who was using the mobile No. 9210887579, the relevant entries are as under:
Sr. Calling No. Called No. Date Time Seconds Location No.
1. 9210887579 9278453468 9.9.09 9:02 15 Alipur (Kamal Kishore) (Manoj)
2. 9210887579 9278453468 9.9.09 9:11 58 Alipur (Kamal Kishore) (Manoj)
3. 9210887579 9278453468 9.9.09 20:09 34 Alipur (Kamal Kishore) (Manoj)
4. 9278453468 9210887579 9.9.09 20:46 21 Alipur (Manoj) (Kamal Kishore)
5. 9210887579 9278453468 10.9.09 9:36 109 Alipur (Kamal Kishore) (Manoj)
6. 9210887579 9278453468 10.9.09 10:49 33 Alipur (Kamal Kishore) (Manoj)
7. 9210887579 9278453468 10.9.09 11:01 8 Alipur (Kamal Kishore) (Manoj)
8. 9210887579 9278453468 10.9.09 13:50 60 Majlis Park (Kamal Kishore) (Manoj)
9. 9210887579 9278453468 10.9.09 14:00 8 Model Town (Kamal Kishore) (Manoj) St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 140
10. 9210887579 9278453468 10.9.09 14:32 17 Majlis Park (Kamal Kishore) (Manoj)
11. 9210887579 9278453468 10.9.09 14:38 46 Model Town (Kamal Kishore) (Manoj)
12. 9278453468 9210887579 10.9.09 15:05 16 30305 (Manoj) (Kamal Kishore)
13. 9210887579 9278453468 10.9.09 15:10 574 30305 (Kamal Kishore) (Manoj)
14. 9210887579 9278453468 10.9.09 15:37 28 Model Town (Kamal Kishore) (Manoj)
15. 9278453468 9210887579 10.9.09 15:45 163 29809 (Manoj) (Kamal Kishore) (154) The aforesaid call details record of the mobile phone No. 9210887579 which is in the name of accused Kamal Kishore conclusively establishes that he was in regular touch with the accused Manoj Kumar throughout the date of incident and couple of days earlier. Further, on the date of incident i.e. 10.09.2009 the accused Kamal Kishore was present in the area covered by the tower installed at Majlis Park and Model Town (covering the area of Adarsh Nagar wherein the incident took place) where he remained from 13:29 onwards till 15:45.
(155) When the aforesaid material was put to the accused under Section 313 Cr.P.C. they have simply denied the same. In case if the aforesaid mobile numbers were not used by accused then it became all the more necessary for the accused to explain how the number of the other accused persons find reflected in the same particularly those whose Customer Application Form has been confirmed. Further the analysis of the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 141 location chart of the various mobile phones establish the location of all the accused in the area where the incident took place on 10.9.2009. (156) It stands established from the electronic evidence on record that all the accused namely Prem Singh, Kamal Kishore and Manoj Kumar were in constant touch with each other. Further, it stands established that the location of the accused Prem Singh, Kamal Kishore and Manoj Kumar are in the area where the incident took place during during the time of incident.
(157) In view of the above I hereby hold that the electronic evidence independently corroborates and connects the accused with the offence and is also compatible with the time which the accused Prem Singh, Kamal Kishore and Manoj Kumar could have taken in committing the offence. The defence has not been able to successfully demolish the case put forth by the prosecution as aforesaid.
Recovery of weapons of offence pursuant to disclosure statements:
(158) The case of the prosecution is that the accused Prem Singh was arrested on 12.9.2009 from village Badola near Shiv Mandir which was on the basis of the information given by Surat Singh (PW1). Pursuant to his arrest the accused Prem Singh disclosed that names of his other associates as Kamal Kishore and Manoj. Thereafter at the instance of the accused Prem Singh the accused Kamal Kishore and Manoj Kumar were arrested.
Further, on 13.9.2009 pursuant to his disclosure the accused Prem Singh got St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 142 recovered one lathi from the room where the dead body was found which lathi was seized vide memo Ex.PW1/N. Also, on 16.09.2009 during Police Custody remand at the instance of accused Kamal Kishore one rusted iron rod in the shape of Chheni was got recovered from the garbage at the corner of the room where the dead body of Hoshiar Singh was found which was seized vide memo Ex.PW1/P and at the instance of accused Manoj one sweater was got recovered from the garbage lying outside the room with which the accused had tried to strangulate the deceased which sweater was seized vide memo Ex.PW1/O. (159) Ld. Defence Counsels have vehemently argued that the disclosure statements of the accused are inadmissible in evidence being hit by the provisions of Section 27 of Evidence Act. The Ld. Addl. PP for the State on the other hand has argued that the disclosure statements of the accused are admissible since it was only pursuant to the disclosure statements that the weapons of offence were got recovered by the accused. (160) I have considered the rival contentions. 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 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 143 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.
(161) 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.
(162) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(163) 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 144 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". (164) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "...... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 145 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 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 146 '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......"
(165) 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 do with the past history of the crime and are distinctly St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 147 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.
(166) 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 148 Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(167) 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 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 149 discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(168) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 150 as relates distinctly to the fact thereby discovered is admissible. (169) Applying the settled principles of law to the facts of the present case, I may observe that the apprehension and arrest of the accused Prem Singh has been duly proved by his own uncles / chacha Surat Singh (PW1) and Jai Singh (PW20). Surat Singh (PW1) has proved that on 12.9.2009 it was on his information that the accused Prem Singh was apprehended from village Badola near Shiv Mandir where he went along with the police party. He has also proved the documents of arrest and personal search of the accused and also the disclosure statement of accused Prem Singh. Pursuant to the said disclosure it was for the first time that the police came to know about the involvement of two other accused i.e. Kamal Kishore and Manoj Kumar since initially a strong suspicion was expressed was the brother of the deceased Hoshiyar Singh on the accused Prem Singh since he was having property dispute with his father Hoshiyar Singh. After his arrest the accused Prem Singh led the police party to the house of Kamal Kishore at Ambedkar Colony, Alipur from where he got the accused Kamal Kishore arrested and thereafter led the police to the house of accused Manoj Kumar at Alipur from where the accused Manoj Kumar was apprehended. (170) The apprehension and arrested of the said accused have not only been proved by the various witnesses of the police i.e. SI Kishan Lal (PW29) and Inspector Mahavir Kaushik (PW30) but also find independent confirmation from the testimonies of Surat Singh (PW1) and Jai Singh (PW20) who are the real uncles of the accused Prem Singh. In fact the only St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 151 defence offered by the accused Prem Singh is that his uncles and other family members have connived to take possession of the property but I may observe that Surat Singh (PW1) and Jai Singh (PW20) who are the uncles of the accused are residing in their separate properties and have no interest in the property of Hoshiyar Singh. In so far as the brothers of the accused Prem Singh i.e. Narender and Satish are concerned except for giving the details of the previous history of dispute between the accused Prem Singh and deceased Hoshiyar Singh, they have not deposed about anything more than this. Had they been inimical towards the accused Prem Singh, it would be very easy for them to have falsely implicate him by claiming themselves to be the eye witnesses which they have not done. Even Kavita (PW12) the real sister of Prem Singh has gone soft on him during her examination in the Court and has declined having told the police that her brother Prem Singh had killed her father. Hence, in this background the presence of Surat Singh (PW1) at the time of apprehension and arrest of the accused persons and subsequent discovery lends credence to the apprehension and arrest of the accused persons.
(171) Coming now to the aspect of recovery of weapons of offence, Surat Singh (PW1) in his testimony has been most categorical to the extent that after the arrest of the accused persons, the police had brought them to the premises of Hoshiyar Singh and it was in his presence and other persons residing in the neighbourhood that the accused Prem Singh got recovered a lathi (Ex.P9) measuring about 5 - 5.25 feet having eight knots (pours) St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 152 which lathi had been seized vide memo Ex.PW1/N. He has further proved that the accused Kamal Kishore pointed out the corner of the room where the scrap material i.e. garbage was lying from where he got recovered an iron rod in the shape of chenni like screw driver (Ex.P8) about 1.5 feet long and disclosed that he had used the said iron chenni in the murder of Hoshiyar Singh, which chenni was thereafter seized vide memo Ex.PW1/P. He has also proved that from the same room the accused Manoj Kumar got recovered a blue coloured sweater (Ex.P4) which according to him they had used the said sweater for closing the mouth of deceased Hoshiyar Singh which sweater was thereafter seized vide memo Ex.PW1/O. (172) The Autopsy Surgeon Dr. K. Goyal (PW10) has proved having opined that the injury no.5 (i.e. both lips with surrounding area bruised externally as well as internally against the teeth) was caused by pressure over mouth consistently by grip to ward off cries. Further, he has proved that the injury no.6 (i.e Incised wound 3 x 1 cm till skin deep over ventral aspect of penile stem) and Injury No.7 (cut penetrating wounds, two in numbers, over right scrotum, one of them is at upper side of size 2 x 0.5 cm just right to midline and another one is at lower side 1.5 x 0.5 cm) could be caused by the iron rod / chenni like a screw driver i.e. Ex.P8 (got recovered by the accused Kamal Kishore).
(173) It is apparent from the evidence on record that the place where the dead body was recovered was already within the knowledge of the police St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 153 but it was not within the knowledge of Investigating Agency at the stage of initial investigations that there was involvement of three persons in the murder of Hoshiyar Singh since suspicion was expressed only on Prem Singh and it was only pursuant to the disclosure made by the accused Prem Singh that the police came to know about the details and name of the other accused persons i.e. Kamal Kishore and Manoj Kumar whom the police has apprehended at the instance of accused Prem Singh. It was also not within the knowledge of the police as to how the murder of Hoshiyar Singh was committed and by which weapons. It was only pursuant to the disclosure statement of accused Prem Singh who got recovered the lathi; disclosure statement of accused Kamal Kishore who got recovered the chenni like screw driver and disclosure statement of accused Manoj Kumar who got recovered the sweater, that the police came to know about the same. What turns on the fact that accused Prem Singh, Kamal Kishore and Manoj Kumar led the police to the room in the premises of deceased Hoshiyar Singh from where they got recovered the weapons of offence, which is a strong pointer towards the guilt of accused Prem Singh, Kamal Kishore and Manoj Kumar.
Common Intention:
(174) The case of the prosecution is that all the accused Prem Singh, Kamal Kishore and Manoj Kumar had in pursuance of their common intention committed the murder of Hoshiyar Singh in a preplanned and St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 154 premeditated manner. Ld. Counsels for the accused persons on the other hand have vehemently argued that no common intention can be attributed to the accused persons.
(175) Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 155 SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134.
Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 156 (176) Applying the settled principles of law to the facts of the present case it is evident that there is ample material on record to prove that all the accused persons shared common intention. It stands established that all the accused i.e. Prem Singh, Kamal Kishore and Maonj Kumar were present at the time of incident at the spot which is a private property where Hoshiyar Singh was residing. The presence of the accused persons at the spot of incident not only stands established from the testimonies of the public witnesses i.e. Jai Singh (PW20) the real brother of the deceased and Naresh Kumar (PW21) the neighbour of the deceased who have identified both the accused Kamal Kishore and Manoj Kumar but also from the electronic evidence on record which conclusively confirms the presence of the accused persons at the spot during the time when the incident took place. The accused Prem Singh is a resident of the same premises but the accused Kamal Kishore and Manoj are residents of Alipur and have no justification to offer and no explanation is forthcoming as to what they were doing at the spot along with accused Prem Singh at the time of the incident. (177) Further, the common intention of the accused persons also stand established that the accused Prem Singh had parked his vehicle in front of the room of Hosiyar Singh and started giving accelerator to his Qualis vehicle as a result of which there was loud noise so much so that even the neighbours had to ask him as to what he was doing. In the meantime the accused Kamal Kishore and Manoj Kumar went inside the room of the deceased where the incident of killing had taken place and as evident from St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 157 the medical evidence the deceased Hoshiyar Singh had put up a stiff resistance and it stands established that the deceased was thrown to the ground face down and dragged after he was gagged. It is writ large that while the accused were doing their job inside the room of Hoshiyar Singh, the accused Prem Singh in order to drown all voices and noises which were coming from the room, was pressing the accelerator of the Toyota Qualis. It is this act of Prem Singh, Manoj Kumar and Kamal Kishore which raises a finger of suspicion, for all this could not be just a coincidence and rather confirms the prior meeting of mind, the fact that the offence was committed in a preplanned manner and indicates their common intention and I hereby hold that all the accused Prem Singh, Kamal Kishore and Manoj Kumar acted in consortium in committing the murder of Hoshiyar Singh. Defence of the accused:
(178) Ld. counsels appearing on behalf of the accused persons have pointed out the various discrepancies in the testimonies of the various prosecution witnesses particularly in the testimonies of the public witnesses who are related to the deceased. It is pointed out that there are material contradictions in the testimonies of the prosecution witnesses with regard to the dates and timings.
(179) I have considered the submissions made before me. In so far as the minor contradictions are concerned, I may observe that with regard to exact time of an incident, or the time duration of an occurrence, usually St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 158 people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters since it depends on the time sense of individuals which varies from person to person [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)]. Therefore, I hold that the contradictions so pointed out by the Ld. Defence Counsels are nor material and are of minor character and would not affect the merits of the case. All the public witnesses are rustic villagers who are layman and not wellversed in law.
They are closely related to the deceased and it is only natural that after having seen the dead body of the deceased they would have extremely perturbed and disturbed and this explains the discrepancies in their testimonies as pointed by the Ld. Defence Counsel. (180) In so far as the defence of the accused Prem Singh is concerned, according to him, he had purchased the 100 square yards of land in the property in question i.e. bearing No. B43, Kewal Park, Azadpur, Delhi from his deceased uncle Prithi Singh and in this regard he has placed on record the various documents. It is also submitted that there has been no dispute between him and his father at any point of time nor has he ever filed any civil suit relating to property. The accused Prem Singh has claimed that his brothers and uncles wanted to usurp the property and hence they have falsely implicated him. He has examined himself as DW1. It is writ large that all the documents so produced by the accused are only notarized and St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 159 not registered. Further, he has admitted that he has not been paying any house tax nor has he any electricity / water meter in his name and states that the gas connection which he has obtained is in the name of his wife. Assuming that the accused Prem Singh did exercise some rights over the property in question, how is it that it exonerates him from the offence alleged. The fact that there had been a dispute between Prem Singh and Hoshiyar Singh stands confirmed from the testimonies of not only of his own brothers, sister and uncles but also from the neighbours who had intervened from time to time to settle the dispute between the father and the son. Therefore, I find no merit in the defence so raised by the accused. FINAL CONCLUSIONS:
(181) 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;
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 160
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(182) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following facts stand established:
➢ That the accused Prem Singh is the eldest son of the deceased Hoshiyar Singh; that the accused Hoshiyar Singh was residing at B43, Kewal Park, Azadpur, Delhi in a room whereas other rooms were given on rent;
➢ That the accused Prem Singh was residing in the same premises along with his family;
➢ That the accused Prem Singh was having a property dispute with his father Hoshiyar Singh due to which reason there were frequent quarrels between them and the accused Prem Singh had publicly threatened Hoshiyar Singh to kill him.
➢ That in the year 2008 there was a quarrel between Prem Singh and Hoshiyar Singh during which the accused Prem Singh gave beatings to Hoshiyar Singh who received head injuries and that the said St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 161 dispute between Prem Singh and Hoshiyar Singh was compromised with the intervention of Mool Chand President of RWA and Om Dutt Bhardwaj a resident of the area.
➢ That the accused Prem Singh was a Driver who used to drive a Toyota Qualis bearing no. DL4CR6693 belonging to his cobrother Surat Singh which was in the name of Vijender Singh and Prem Singh used to give 50% share of profit to Surat Singh for driving the same.
➢ That during the year 2009 the daughter of Hoshiyar Singh namely Kavita (sister of the accused Prem Singh) was learning the stitching work at Kewal Park Extension.
➢ That on 10.9.2009 at 1:00 PM while she was going for her stitching course Kavita last saw her father Hoshiyar Singh alive when he was cleaning the roof since on account of logging rainy water had accumulated on the same.
➢ That Kavita returned back at around 3:454:00 PM she saw her father lying on a cot (chaarpai) covered with a bed sheet and when she tried to wake him up she sensed some mishappening on which she raised an alarm and started weeping.
➢ That on hearing the cries of Kavita, her uncles Surat Singh and Jai Singh who are the brother of the deceased Hoshiyar Singh came to the spot and checked Hoshiyar Singh and thereafter rushed him to Khera Nursing Home where Hoshiyar Singh was declared brought dead.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 162
➢ That Surat Singh and Jai Singh took Hoshiyar Singh back to his room and laid him on the same cot after which Surat Singh made a call at 100 number.
➢ That pursuant to the PCR call the police reached the spot and recorded the statement of Surat Singh wherein he had at the first instance expressed his suspicion over Prem Singh since as soon as he (Surat Singh) made a PCR call, the accused Prem Singh slipped away from the spot.
➢ That both Kavita and Surat Singh had seen accused Prem Singh moving in the verandha of the premises; that on the basis of the statement of Surat Singh the FIR was got registered. ➢ That on the date and time of the incident i.e. on 10.9.2009 at 3:15 PM Naresh Kumar (a resident of the area) had seen the accused Prem Singh sitting on the driver seat of Qualis vehicle and was giving accelerator to the same.
➢ That when Naresh Kumar asked Prem Singh why he was giving accelerator on which Prem Singh responded that the vehicle was not starting.
➢ That Naresh Kumar saw two other boys i.e. accused Manoj and Kamal Kishore who were earlier talking to Prem Singh outside the room of Hoshiyar Singh and when he (Naresh Kumar) asked Prem Singh about the said person he (Prem Singh) informed him that they were the tenants.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 163 ➢ That even Jai Singh the real brother of Hoshiyar Singh who is residing in the neighbourhood, had seen his nephew Prem Singh talking with two boys (i.e. accused Kamal Kishore and Manoj Kumar) in front of the room of Hoshiyar Singh near the Qualis vehicle of Prem Singh.
➢ That Jai Singh saw that after some time Prem Singh boarded in his Qualis vehicle and other two boys (i.e. accused Kamal Kishore and Manoj Kumar) who were talking with Prem Singh entered in the room of Hoshiyar Singh.
➢ That on 12.9.2009 on the basis of information given by Surat Singh the accused Prem Singh was apprehended from village Badola near Shiv Mandir.
➢ That pursuant to his arrest the accused Prem Singh disclosed the names of his other associates as Kamal Kishore and Manoj. ➢ That thereafter at the instance of the accused Prem Singh the accused Kamal Kishore and then the accused Manoj Kumar were apprehended and arrested.
➢ That on 13.9.2009 pursuant to his disclosure the accused Prem Singh got recovered one lathi from the same room where the dead body of Hoshiyar Singh was found which lathi was seized by the police. ➢ That on 16.09.2009 during Police Custody remand at the instance of accused Kamal Kishore one rusted iron rod in the shape of Chheini was got recovered from the garbage at the corner of the room where St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 164 the dead body of Hoshiar Singh was found which Chheini was seized. ➢ That at the instance of accused Manoj one sweater was got recovered from the garbage lying outside the room with which the accused had tried to strangulate the deceased which sweater was seized. (183) The prosecution has also been able to successfully connect the medical, forensic and electronic evidence with the accused persons. The medical evidence on record establishes that the chest, liver and pelvic injuries were caused by blunt force impact and all injuries were collectively consistent with assault and the cause of death was combined effect of shock and hemorrhage due to chest, liver and pelvic injuries and vasovegal shock due to testicular injuries which are collectively sufficient to cause death in ordinary course of nature and it also stands established from the nature of injuries that the deceased was thrown to the ground face down and dragged after he was gagged and the time since death was about 2324 hours which is compatible to the version given by the public witnesses of last seen particularly the daughter of the deceased namely Kavita who has proved that she had returned at about 3:454:00 PM when the deceased was found dead. (184) The medical evidence is compatible to and confirms the account given by the public witnesses who had seen the accused Prem Singh outside the house at about 3:15 PM pressing the accelerator of the Qualis vehicle which he did to ensure that the voices of the victims are drowned in the noise of the vehicle and are not heard outside. Further, the forensic St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 165 evidence on record showing the presence of human blood of the sweater (got recovered by the accused Manoj) which was used for gagging the mouth of the deceased and the weapon of offence i.e. iron rod looking like a chheni (got recovered by the accused Kamal Kishore) and is a strong pointer towards the guilt of the accused. Also, the electronic evidence on record establishes that at the time of the incident all the accused namely Prem Singh, Kamal Kishore and Manoj Kumar were together in the area where the incident took place i.e. at Kewal Park Extension, Adarsh Nagar (area covered by the mobile towers of various service providers situated at Model Town, PanchwatiAdarsh Nagar, Majlis Park, Commercial Complex Azadpur) and were in close contact with each other before and even after the incident which evidence is compatible to the oral testimonies of Jai Singh and Naresh Kumar who had seen them together in the house of Hoshiyar Singh in front of his room.
(185) 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.
(186) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 166 the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and electronic evidence and the witness of the prosecution have been able to built up a continuous link.
(187) In view of the above, I hereby hold that the prosecution has been able to successfully prove and substantiate beyond reasonable doubt the allegations against the accused Prem Singh, Kamal Kishore and Manoj Kumar of having committed the murder of Hoshiyar Singh in pursuance to their common intention, for which all the accused Prem Singh, Kamal Kishore and Manoj Kumar are hereby held guilty of the offence under Section 302/ 34 Indian Penal Code for which they are accordingly convicted.
(188) Be listed for arguments on sentence on 23.5.2013.
Announced in the open court (Dr. KAMINI LAU)
Dated: 17.5.2013 ASJII(NW)/ ROHINI
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 167
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 137/2011 Unique Case ID No.: 02404R0325332009 State Vs. (1) Prem Singh S/o Late Hoshiyar Singh R/o B43, Kewal Park, Azadpur, Delhi (Convicted) (2) Kamal Kishore S/o Sh. Ganga Ram R/o House No. 39, Ambedkar Colony, Alipur, Delhi (Convicted) (3) Manoj Kumar S/o Sh. Ram Phool R/o House No. 2044, Near Post Office, Alipur Garhi, Delhi (Convicted) FIR No.: 206/2009 Police Station: Adarsh Nagar Under Section: 302/34 Indian Penal Code Date of conviction: 17.5.2013 Arguments concluded on: 29.5.2013 Date of sentence: 29.5.2013 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 168 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
All the three convicts namely Prem Singh, Kamal Kishore and Manoj Kumar in judicial custody with Sh. R.S. Yadav, Sh.
Rakesh Chahar and Sh. Vikas Sharma Advocates.
ORDER ON SENTENCE:
This is not an ordinary case of homicide but a case of Patricide (killing of his / her own father) where the accused Prem Singh on account of extreme hatred and dislike for his father Hoshiyar Singh a senior citizen aged about 67 years on account of long standing property dispute with him, planned and got executed his elimination with extreme brutality and this he did, in consortium with his associates Kamal Kishore and Manoj Kumar.
As per the allegations, on 10.9.2009 between 1:00 PM to 4:00 PM at B43, Kewal Park, Adarsh Nagar, Delhi all the accused Prem Singh, Kamal Kishore and Manoj Kumar in furtherance of their common intention committed the murder of Hoshiyar Singh.
On the basis of the testimonies of the various witnesses particularly the family members of the deceased, neighbours and also on the basis of the medical, forensic, electronic and other circumstantial evidence on record, this Court vide a detail judgment dated 17.5.2013 held the accused Prem Singh, Kamal Kishore and Manoj Kumar guilty of the offence under Section 302/ 34 IPC.
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 169
Vide the said judgment this Court has observed that it stands established that the accused Prem Singh is the eldest son of the deceased Hoshiyar Singh; that the accused Hoshiyar Singh was residing at B43, Kewal Park, Azadpur, Delhi in a room whereas other rooms were given on rent; that the accused Prem Singh was residing in the same premises along with his family; that the accused Prem Singh was having a property dispute with his father Hoshiyar Singh due to which reason there were frequent quarrels between them and the accused Prem Singh had publicly threatened Hoshiyar Singh to kill him; that in the year 2008 there was a quarrel between Prem Singh and Hoshiyar Singh during which the accused Prem Singh gave beatings to Hoshiyar Singh who received head injuries and that the said dispute between Prem Singh and Hoshiyar Singh was compromised with the intervention of Mool Chand President of RWA and Om Dutt Bhardwaj a resident of the area. It further stands established that the accused Prem Singh was a Driver who used to drive a Toyota Qualis bearing no. DL4CR6693 belonging to his cobrother Surat Singh which was in the name of Vijender Singh and Prem Singh used to give 50% share of profit to Surat Singh for driving the same. It has also been established that during the year 2009 the daughter of Hoshiyar Singh namely Kavita (sister of the accused Prem Singh) was learning the stitching work at Kewal Park Extension; that on 10.9.2009 at 1:00 PM while she was going for her stitching course Kavita last saw her father Hoshiyar Singh alive when he was cleaning the roof since on account of logging rainy water had St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 170 accumulated on the same; that Kavita returned back at around 3:454:00 PM she saw her father lying on a cot (chaarpai) covered with a bed sheet and when she tried to wake him up she sensed some mishappening on which she raised an alarm and started weeping; that on hearing the cries of Kavita, her uncles Surat Singh and Jai Singh who are the brother of the deceased Hoshiyar Singh came to the spot and checked Hoshiyar Singh and thereafter rushed him to Khera Nursing Home where Hoshiyar Singh was declared brought dead; that Surat Singh and Jai Singh took Hoshiyar Singh back to his room and laid him on the same cot after which Surat Singh made a call at 100 number; that pursuant to the PCR call the police reached the spot and recorded the statement of Surat Singh wherein he had at the first instance expressed his suspicion over Prem Singh since as soon as he (Surat Singh) made a PCR call, the accused Prem Singh slipped away from the spot; that both Kavita and Surat Singh had seen accused Prem Singh moving in the verandha of the premises; that on the basis of the statement of Surat Singh the FIR was got registered.
It also stands establishing that on the date and time of the incident i.e. on 10.9.2009 at 3:15 PM Naresh Kumar (a resident of the area) had seen the accused Prem Singh sitting on the driver seat of Qualis vehicle and was giving accelerator to the same; that when Naresh Kumar asked Prem Singh why he was giving accelerator on which Prem Singh responded that the vehicle was not starting; that Naresh Kumar saw two other boys i.e. accused Manoj and Kamal Kishore who were earlier talking to Prem Singh St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 171 outside the room of Hoshiyar Singh and when he (Naresh Kumar) asked Prem Singh about the said person he (Prem Singh) informed him that they were the tenants; that even Jai Singh the real brother of Hoshiyar Singh who is residing in the neighbourhood, had seen his nephew Prem Singh talking with two boys (i.e. accused Kamal Kishore and Manoj Kumar) in front of the room of Hoshiyar Singh near the Qualis vehicle of Prem Singh; that Jai Singh saw that after some time Prem Singh boarded in his Qualis vehicle and other two boys (i.e. accused Kamal Kishore and Manoj Kumar) who were talking with Prem Singh entered in the room of Hoshiyar Singh.
The arrest of the accused persons also stand established. The prosecution has been able to successfully prove that on 12.9.2009 on the basis of information given by Surat Singh the accused Prem Singh was apprehended from village Badola near Shiv Mandir; that pursuant to his arrest the accused Prem Singh disclosed the names of his other associates as Kamal Kishore and Manoj; that thereafter at the instance of the accused Prem Singh the accused Kamal Kishore and then the accused Manoj Kumar were apprehended and arrested; that on 13.9.2009 pursuant to his disclosure the accused Prem Singh got recovered one lathi from the same room where the dead body of Hoshiyar Singh was found which lathi was seized by the police; that on 16.09.2009 during Police Custody remand at the instance of accused Kamal Kishore one rusted iron rod in the shape of Chheini was got recovered from the garbage at the corner of the room where the dead body of Hoshiar Singh was found which Chheini was seized; that at the instance St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 172 of accused Manoj one sweater was got recovered from the garbage lying outside the room with which the accused had tried to strangulate the deceased which sweater was seized.
The prosecution has also been able to successfully connect the medical, forensic and electronic evidence with the accused persons. The medical evidence on record establishes that the chest, liver and pelvic injuries were caused by blunt force impact and all injuries were collectively consistent with assault and the cause of death was combined effect of shock and hemorrhage due to chest, liver and pelvic injuries and vasovegal shock due to testicular injuries which are collectively sufficient to cause death in ordinary course of nature and it also stands established from the nature of injuries that the deceased was thrown to the ground face down and dragged after he was gagged and the time since death was about 2324 hours which is compatible to the version given by the public witnesses of last seen particularly the daughter of the deceased namely Kavita who has proved that she had returned at about 3:454:00 PM when the deceased was found dead.
This Court has also observed in the judgment that the medical evidence is compatible to and confirms the account given by the public witnesses who had seen the accused Prem Singh outside the house at about 3:15 PM pressing the accelerator of the Qualis vehicle which he did to ensure that the voices of the victims are drowned in the noise of the vehicle and are not heard outside. Further, the forensic evidence on record showing the presence of human blood of the sweater (got recovered by the accused St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 173 Manoj) which was used for gagging the mouth of the deceased and the weapon of offence i.e. iron rod looking like a chheni (got recovered by the accused Kamal Kishore) and is a strong pointer towards the guilt of the accused. Also, the electronic evidence on record establishes that at the time of the incident all the accused namely Prem Singh, Kamal Kishore and Manoj Kumar were together in the area where the incident took place i.e. at Kewal Park Extension, Adarsh Nagar (area covered by the mobile towers of various service providers situated at Model Town, PanchwatiAdarsh Nagar, Majlis Park, Commercial Complex Azadpur) and were in close contact with each other before and even after the incident which evidence is compatible to the oral testimonies of Jai Singh and Naresh Kumar who had seen them together in the house of Hoshiyar Singh in front of his room.
This being the background, it has been observed by this Court that the prosecution has been able to successfully prove and substantiate beyond reasonable doubt the allegations against the accused Prem Singh, Kamal Kishore and Manoj Kumar of having committed the murder of Hoshiyar Singh in pursuance to their common intention, for which all the accused Prem Singh, Kamal Kishore and Manoj Kumar have been held guilty of the offence under Section 302/ 34 Indian Penal Code and have been convicted accordingly.
Heard arguments on the point of sentence. The convict Prem Singh is stated to be aged about 48 years having a family comprising of wife, two sons and three daughters (two of whom are married). According St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 174 to the convict he is 8th class pass and was doing the work of selling vegetables.
The convict Kamal Kishore is stated to be a young boy of 25 years having a family comprising of aged parents, three elder brothers, one elder and one younger sister. He is 12th class pass and at the time of his arrest he was studying.
The convict Manoj Kumar is stated to be a young boy of 24 years having a family comprising of aged parents, two married sisters and one brother. He is 12th class pass and at the time of his arrest he was studying.
Ld. Counsels for the convicts submit that all the convicts are first time offenders and are not involved in any other case. It is submitted that the convict Prem Singh is the sole bread earner of his family whereas the convicts Kamal Kishore and Manoj Kumar are the helping hands of their respective families. It is submitted that the present case does not fall within the category of 'Rarest of Rare' and hence a lenient view be taken against the convicts.
The Ld. Additional Public Prosecutor on the other hand has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case that the murder of a senior circizen has taken place in cold blood in a preplanned manner, there St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 175 is no alternative before this court but to impose death sentence upon the convicts. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 176 The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and
(d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under: St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 177
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
However, in the year 2009 while considering a Death Reference in Criminal Appeal no.528/2009, Death Reference Number 1/2009 the Hon'ble High Court of Delhi in its judgment dated 31/8/2009 observed that the Court has to see as to whether the case falls in the category of the Rarest of Rare i.e an extreme form of being extremely rare within the larger category of rare or not. The Hon'ble Court observed that it has to be established that the case falls in the category of the rarest of the rare and hence while making a reference to their earlier decision as rendered in death reference number 1/2008, titled State Vs. Raj Kumar Khandelwal, Hon'ble Mr. Justice Pradeep Nandrajog and Hon'ble Ms. Justice Indermeet Kaur of the Delhi High Court and by further referring to the summary of various judicial pronouncements as made by them while considering the mitigating factors and the aggravating factors summarized as under: "........ A bird's eye view of various judicial decisions reveal that Courts have considered the under noted circumstances, as mitigating: lack of any prior criminal St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 178 record as held in the decision reported as 2006 EWHC 1555 (OQ) In Re. Butters'; the age of the offender being too young or too old as held in the decision reported as AIR 1974 SC 799 Ediga Anamma Vs. State of Andhra Pradesh; the character of the offender i.e how the offender is perceived in the society by men of social standing; the probability of the offenders' rehabilitation, reformation and readaptation in the society; whether the offence was committed under a belief by the assailant that he was morally justified in doing so; or that the accused acted under the duress or domination of another person as held in the decision reported as 1982 (3) SCC 24 Bachan Singh Vs. State of Punjab; commission of the offence at the spur of the moment without any premeditation; or the offender being provoked (for instance by prolonged stress) in a way not amounting to the defence of provocation, as held in the decisions reported as 2008 EWHC 36 (QB) Re. Rahman and AIR 1998 SC 2821 A. Devendran Vs. State of Tamil Nadu; a belief by the offender that the murder was an act of mercy as held in the decision reported as 1994 (Supply) 3 SCC 143 Janki Dass Vs. State (Delhi Administration); a guilty plea by the offender or his voluntarily surrendering before the authorities and his being genuinely remorseful as held in the decisions reported as (2008) EWHC 92 (QB) In Re. Rock and (2006) EWHC 1555 (QB) In Re. Butters'; that the offender acted to any extent in self defence; that his intention was merely to cause serious bodily harm rather than to kill; that the victim provoked or in any way contributed to the crime, as held in the decision reported as AIR 1999 SC 1699 Kumudi Lal Vs. State of U.P. Lastly, in the decisions reported as AIR 2007 SC 2531 St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 179 Swami Shradhanand @ Murali Manohar Mishra Vs. State of Karnataka and 2007 Cri. L.J. 1806 Shivu & Anr. Vs. High Court of Karnataka & Anr., it was held that in cases of conviction being based on circumstantial evidence a lenient view should be taken on the issue of sentence.
Aggravating factors/circumstances have been opined to be; the accused having undergone previous convictions and his proving to be a future danger/threat or menace to the society considering aspects like criminal tendencies, vagabond lifestyle, drug abuse etc. as per the decision reported as (2008) EWHC 719 (QB) In Re.
Miller; offender being in a dominating position to the victim or in a position of trust and has abused the trust; anti social or socially abhorrent nature of the crime i.e where the offence arouses social wrath and shakes the confidence of the people in any social institution; a crime committed for a motive which evinces total depravity and meanness for instance, a financial gain; where the magnitude of the crime is large i.e there are more than one victim; where the crime is committed in an extremely brutal, grotesque, diabolical revolting or dastardly manner so as to arouse extreme indignation of the community as held in the decision reported as 1983 (3) SCC 470 Machhi Singh Vs. State of Punjab;
significant degree of planning or premeditation and lack of remorse as held in the decision reported as AIR 2005 SC 2059 Holiram Bordoli Vs. State of Assam; the victim being vulnerable due to age or physical infirmity as held in the decision reported as 2008 (110) Bom. LR. 373 State of Maharashtra Vs. Haresh Mohandass Rajput; mental or physical suffering inflicted on the victim before the death; victim being a public service provider St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 180 or performing a public duty at the time when the crime was committed, as held in the decision reported as (1977) 431 US 633 Roberts Vs. Louisiana. Lastly, the offender attacking sovereign democratic institutions as held in the decision reported as 2003 (6) SCC 641 Navjyot Sandhu @ Afsan Guru Vs. State".....".
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal in Crl. Appeal No. 528/09 decided on 31.8.2009 examined another important facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra, JT 2009 (7) SC 249 wherein the Hon'ble Supreme Court of India had observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of law. That ought not to be done, save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
The Hon'ble Mr. Justice Pradeep Nandrajog further considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 181 sentence of imprisonment in two categories i.e the Ordinary Category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a Higher Category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip said benefit being extended by directing that the accused shall undergo an actual sentence for a higher period or even for the remainder of his life. It was observed that such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years. It is, therefore, evident that the courts are required to draw a virtual balance sheet listing the mitigating and the aggravating circumstances against each other and then forming an opinion as to where does the fulcrum rest. St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 182
Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factor as pointed out by the Ld. Counsels is that the convicts are not involved in any other case and are first time offenders. The aggravating factors are that the deceased Hoshiyar Singh a senior citizen aged about 67 years was the father of convict Prem Singh and the motive of the crime was the long standing property dispute.
In so far as the case of Kamal Kishore and Manoj is concerned there is no dispute and after considering the various aggravating and mitigating factors as already observed herein above, I hold that the same cannot be covered in the category of "Rarest of Rare" or even "Rare Cases"
but the case of Prem Singh has to be considered on different footing. He is the son of the deceased who was the main person who authored the crime.
In various jurisdiction world over cases involving manslaughtering / Homicide, Patricide i.e. killing one's own father and Matricide i.e. killing one's own mother are taken as the worst kinds of crime, for it is an act so reprehensible and ostensibly perverse that it shakes the conscious of the society, for this act is fraughted with malice and evil motives. Patricide / Matricide are crimes which are looked upon with the highest degree of contempt and in jurisdictions of the world (Japan, China etc.) the crime of Patricide / Matricide provide for a greater punishment / sentence than that provided for an ordinary Homicide.St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 183
With the growth of materialistic culture, of late there has been a spurt of instances of crime against senior citizens particularly the elderly in the family in urban India. The aged parents are often considered a burden by married children and instances of parental abuse are frequent. Cases are numerous where the elder family members are abandoned, compelled into destitution and isolation or even eliminated and what aggravates the situation is the indifferent familial response, slow interventions and intra familial pressures to preserve and save the family reputation by denial and coverup. This is an increasing problem and hence as observed by the Hon'ble Supreme Court in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 living law has to find an answer to these new challenges and the Courts of Law are required to mould the sentencing system to meet these challenges. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The convict Prem Singh is shown to have a wanton disregard for his father's life and had evil motives that resulted in murdering of his father. Malice as a forethought is often the standard used to prove the crime and in the present case the prosecution has successfully established that the accused Prem Singh was frequently involved in quarrels with his father and used to regularly abuse, thrash and beat his father on account of long standing property dispute with him, a fact which was known to his entire family including his brothers, sister and uncles and the neighbours who even St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 184 previously had been intervening in the disputes and advising him. The aspect of prior deliberations and preplanning is evident from the manner in which the crime has been given effect and executed. The death of Hoshiyar Singh was a result of malice and extreme hatred entertained by the convict Prem Singh to whom his property meant more than the life and happiness of his father. Ironically, Hoshiyar singh was brutally killed at that stage of his life by his own son when he (Hoshiyar Singh) required his family i.e. his sons and daughter most. If an aged father is not safe in his own house with his own sons, there is no other place where he can be more safe. There can be no justification whatsoever for any killing but to kill one's own father or mother is an act which invites extreme indignation and that too at an age when it is the obligation of the children to provide due care, attention and maintenance to their parents. This being the background, I hold that the case of Prem Singh falls within the category of 'Rare Case'.
I hereby award the following punishments to the convicts:
1. The convicts Kamal Kishore and Manoj Kumar are sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.50,000/ (each) for the offence under Section 302 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of Three Months (each).
2. The convict Prem Singh is sentenced sentenced to Rigorous Imprisonment for Life with the directions that he shall not be St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 185 considered for grant of remission till he undergoes an actual sentence of 20 years and fine for a sum of Rs.50,000/ (Rs. Fifty Thousand) for the offence under Section 302 IPC. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of three months.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 29.05.2013 ASJ (NW)II: ROHINI
St. Vs. Prem Singh Etc., FIR No. 206/09, PS Adarsh Nagar Page No. 186