Delhi District Court
State vs . Mithilesh Kumar Kushwaha on 8 July, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 252/2009/2007
CASE ID: 02403R0085192009
State Vs. Mithilesh Kumar Kushwaha
S/o Sh. Ram Prakash Kushwaha
R/o Vill. Chakwa, PS Sita Madhi,
Bihar.
FIR No. 147/07
Police Station Vasant Kunj
Under Sections 302/307/397/506/411/201/392 IPC
Date of Institution of the case
in Sessions Court : 30/05/2007
Date of Institution of the case
in this Court : 27/03/2009
Date of Decision : 01/07/2010
Date of order on sentence : 08/07/2010
ORDER ON SENTENCE
By my judgment dated 01/07/2010, accused was convicted
under sections 302, 201, 394/397, 506 (II) and 307 IPC.
Ld. Addl PP assisted by learned Counsel for the
Complainant Sh. S. P. Ahluwalia, Advocate, has argued for deterrent
punishment against accused, keeping in view the serious nature of the
crime committed by him. It is also argued that it is the most diabolic
SC No. 252/09 Page1/77
crime of murder of two helpless victims very well planned by the
accused. The argument is that when the witness Mehar Lekha came to
the house, the accused after committing two murders was cool and
calm and asked her to take the food. He also tried to misguide her by
saying that the two deceased Surjit Kaur and Master Karanvir had
gone to Gurudwara. After committing murder of the two victims he
sprinkled salt on the dead bodies for avoiding emission of foul smell
from dead bodies. There was no injury on the person of the accused by
said two deceased as they were unable to defend themselves. The
prosecution has relied upon the following authorities and has asked for
capital punishment to be awarded to the convict:
1. Bachan Singh Vs. State of Punjab 1980 (2) Supreme Court
Cases 684;
2. Ramiah Asari Vs. State of Tamilnadu 1977 CrLJ Supreme
Court 1744
3. Shankaria Vs. State of Rajasthan 1978 CrLJ Supreme Court
1248;
4. Kuruvi Muthu Vs. State of Tamilnadu 1978 CrLJ Supreme
Court 1421;
5. Molai & Another Vs. State of Madhya Pradesh 2000 CrLJ
Supreme Court 392;
6. Sushil Murmu Vs. State of Jharkhand AIR 2004 Supreme Court
SC No. 252/09 Page2/77
394;
On the other hand, Sh. N. K Srivastava, learned Amicus
Curiae for the accused has submitted that accused belongs to a poor
family and he is the sole bread earner of his family. He has argued
that it is a case based on circumstantial evidence and the accused did
not have mens rea to commit murder so the case does not fall amongst
the category of rarest of rare cases. It is also argued that the accused is
in custody since the date of his arrest. So lenient view should be taken
in his favour by not awarding him death penalty. Reliance is placed
upon the following authorities:
1. S. D. Soni Vs. State of Gujarat 1991 CriLJ 330;
2. Chandubhai Shanabhai Parmar Vs. The State of Gujarat AIR
1982 Supreme Court 1022.
I have heard the learned Additional Public prosecutor for
the State assisted by learned counsel for the complainant and Sh. N. K.
Srivastava, learned Amicus curie for the convict Mithlesh and have
gone through the record of the case and relevant provisions of law and
authorities produced.
In Chandubhai Shanabhai Parmar's case (supra),
conviction of the accused under Section 302 IPC read with Section 34
IPC was set aside while, that Section 326 was confirmed. This case is
not an authority on the point of sentence in a murder case, so this case
is not applicable to the present case on the point of sentence.
SC No. 252/09 Page3/77
In S. D. Soni's case (supra) also relied upon by Sh. N. K.
Srivastava, Ld. Amicus Curiae for the convict, the accused was
convicted u/S 304 part II IPC and not u/S 302 IPCv. So, this authority
is also not applicable on the point of sentence.
As regards arguments of Sh. N. K. Srivastava, Ld. Amicus
Curiae for the convict that in a case based on circumstantial evidence
death penalty cannot be awarded, no authority in support of this
argument is produced. On the contrary, on behalf of the State, Ld.
Addl. PP assisted by Ld. Counsel for the complainant has relied upon
Molai's case (supra) which is a case based on circumstantial evidence
in which death penalty was awarded by concerned court.
The choice as to which one of the two punishments
provided for murder is a proper one in a given case will depend upon
the particular circumstances of that case and the court has to exercise
its discretion judicially and on well-recognised principles after
balancing all mitigating or aggravating circumstances of the case. {See
Shanker v State of Tamil Nadu (1994) 4 SCC 478, 1994 AIR SCW
2083} Shockingly, large number of criminals go unpunished thereby
increasing and encouraging criminals and ultimately making justice
suffer by weakening the system's credibility. Justice suffers by
weakening of the system's credibility. The imposition of appropriate
punishment is the manner in which the court responds to society's cry
for justice against the criminal. Justice demands that courts should
SC No. 252/09 Page4/77
impose punishment befitting the crime so that the courts reflects the
public abhorrence of the crime. The court must not only keep in view
the right of the criminal but also the rights of the victim of the crime,
and the society at least while considering the imposition of an
appropriate punishment. {See Dhananjay Chatterjee v State of West
Bengal (1994) 2 SCC 220, 1995 AIR SCW 510} It is the nature and
gravity of the crime but not the criminal which are a germane
consideration of appropriate punishment in a criminal trial. The court
will be failing in its duty if appropriate punishment is not awarded for
a crime which has been committed not only against the individual
victim but also against the society to which the criminal and victim
belong. The punishment to be awarded for a crime must not be
irrelevant, but it should conform to and be consistent with the atrocity
and brutality with which the crime has been perpetrated, the enormity
of the crime warranting public abhorence and it should respond to
society's cry for justice against the criminal. If for an extremely
heinous crime of murder perpetrated in a very brutal manner without
any provocation, adequate deterrent punishment is not given, the cause
of deterrent punishment will lose its relevance. {See Ram alias Ram
Chandra v State of Rajasthan (1995) 8 JT 520 (SC), 1996 AIR
SCW 132} In the matter of death sentence, the courts are required to
answer new challenges and mould the sentencing system to meet these
challenges. The object should be to protect society and to deter the
SC No. 252/09 Page5/77
criminal in achieving the avowed object of law by imposing an
appropriate sentence. It is expected that the courts would operate the
sentencing system to impose such sentence which reflects the
conscience of society, and the sentencing process has to be stern where
it should be. (See, Jashubha Bharat Singh v State of Gujarat (1994)
4 SCC 353, 1994 AIR SCW 2360.) For deciding a just and
appropriate sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced in a dispassionate manner is
indeed a difficult test.{See, Surja Ram v State of Rajasthan 1997 Cr
LJ 51 (SC).}
In the three judges bench decision by Hon'ble Supreme
Court in Machhi Singh v. State of Punjab, (SC) is: A.I.R. 1983(SC)
957 relied upon by the prosecution the position as to justification of
awarding death penalty to the convict under section 302 IPC is
indicated in the following observations:
"...........................The very existence of
the rule of law and the fear of being
brought to book operates as a deterrent
to those who have no scruples in killing
others if it suits their ends. Every
member of the community owes a debt
to the community for this protection.
When ingratitude is shown instead of
gratitude by 'Killing' a member of the
community which protects the murderer
SC No. 252/09 Page6/77
himself from being killed, or when the
community feels that for the sake of self
preservation the killer has to be killed,
the community may well withdraw the
protection by sanctioning the death
penalty. But the community will not do
so in every case. It may do so (in rarest
of rare cases) when its collective
conscience is so shocked that it will
expect the holders of the judicial power
centre to inflict death penalty
irrespective of their personal opinion as
regards desirability or otherwise of
retaining death penalty. The community
may entrain such a sentiment when the
crime is viewed from the platform of the
motive for, or the manner of
commission of the crime, or the anti-
social or abhorrent nature of the crime,
such as for instance :
I Manner of Commission of Murder
When the murder is committed in an
extremely brutal, grotesque, diabolical.
revolting, or dastardly manner so as to
arouse intense and extreme indignation
of the community. For instance,
(i) When the house of the victim is set
aflame with the end in view to roast him
alive in the house.
(ii) When the victim is subjected to
inhuman acts of torture or cruelty in
order to bring about his or her death.
(iii) When the body of the victim is cut
SC No. 252/09 Page7/77
into pieces or his body is dismembered
in a fiendish manner.
II Motive for Commission of Murder
When the murder is committed for a
motive which evince total depravity and
meanness. For instance when (a) a
hired assassin commits murder for the
sake of money or reward (2) a cold
blooded murder is committed with a
deliberate design in order to inherit
property or to gain control over
property of a ward or a person under
the control of the murderer or vis-a-vis
whom the murderer is in a dominating
position or in a position of trust. (c) a
murder is committed in the course for
betrayal of the motherland.
III Anti Social or Socially abhorrent
nature of the crime
(a) When murder of a Scheduled Caste
or minority community etc., is
committed not for personal reasons but
in circumstances which arouse social
wrath. For instance when such a crime
is committed in order to terrorize such
persons and frighten them into fleeing
from a place or in order to deprive
them of, or make them with a view to
reverse past injustices and in order to
restore the social balance.
(b) In cases of 'bride burning' and what
are known as 'dowry deaths' or when
murder is committed in order to
SC No. 252/09 Page8/77
remarry for the sake of extracting
dowry once again or to marry another
woman on account of infatuation.
IV Magnitude of Crime
When the crime is enormous in
proportion. For instance when multiple
murders say of all or almost all the
members of a family or a large number
of persons of a particular caste,
community, or locality, are committed.
V Personality of Victim af murder
When the victim of murder is (a) an
innocent child who could not have or
has not provided even an excuse, much
less a provocation, for murder. (b) a
helpless woman or a person rendered
helpless by old age or infirmity (c)
when the victim is a person vis-a vis
whom the murderer is in a position of
domination or trust (d) when the victim
is a public figure generally loved and
respected by the community for the
services rendered by him and the
murder is committed for political or
similar reasons other than personal
reasons."
The landmark Machhi's case (supra) is followed with
respect by courts all over India in murder cases. It is followed in a
later decision by Hon'ble Supreme Court in Sushil Murmu's case
(supra) also relied on behalf of prosecution and also in other cases
Farooq @ Karatta Farooq v. State of Kerala, : 2002 Cri.L.J. 2534
SC No. 252/09 Page9/77
: A.I.R. 2002(SC) 1825 ,Devender Pal Singh v. State N.C.T. of
Delhi, (SC) 2002 Cri.L.J. 2034 : is A.I.R.Devender Pal Singh v.
State N.C.T. of Delhi, (SC) , 2002(2) R.C.R.(Criminal) 515 : 2002
Cri.L.J. 2034 : A.I.R.2002 (SC) 1661 , Ramji Rai v. State of Bihar,
(SC) , A.I.R. 1999 (SC) 3857,A. Devendran v. State of Tamil
Nadu, A.I.R.1998
(SC) 2821 etc.
In Kuljeet Singh's case (supra), also relied on behalf of the
prosecution, the death penalty was awarded by three judges bench of
Hon'ble Supreme Court in the case where the two accused committed
murder of two young children. In Shankaria v. State of Rajasthan,
(SC) 1978 A.I.R. (SC) 1248 also relied on behalf of State following
observations were made:
"The crimes were committed in a most
brutal and dastardly fashion. The
victims were taken unawares when they
were asleep. Two of them were blind
persons. His Neronian conduct even
after the occurrence in languishing in
the stricken premises, looking for
something to eat in the kitchen, drinking
water, smoking Bidis, bringing water
and bathing himself, mindless of the
spectre of the slain and the groans and
gasps of the dying, betrays and extreme
depravity of character. The grisly and
gruesome nature of the murders, the
SC No. 252/09 Page10/77
hapless and helpless state of the victims,
the fiendish modus operandi of the
appellant to first kill and then steal - all,
steel the heart of law to call for its
extreme penalty"
In the backdrop of above legal position it is clear that
though for the offence under section 302 IPC the normal punishment is
life imprisonment but in appropriate cases which fall within the
category of the rarest of rare cases the death penalty is appropriate
punishment.
In the present case the convict Mithlesh not only killed an
old woman Surjit Kaur but also the child Master Karanvir for
committing robbery bringing this case in 'clause V' pertaining to
'Personality of Victim' in Machhi's case (supra). He also betrayed the
trust of complainant, who had left an aged woman and a child in his
safe custody in the flat in question, by killing these helpless persons.
Before committing the offence of murder, he had broken the mobile
phone of the deceased Surjit Kaur so that she may not contact anybody
for help. He concealed the dead body of old woman in a wooden box
and that of the deceased child in a suitcase. Then he cleaned the floor
with wet pauncha (wet cloth) to remove the blood and bloodstains on
the floor. He sprinkled salt on the dead bodies of the two victims. He,
after killing two persons, was calm and asked Mehar Legha, if she
wants to eat something and also stated to her that the two deceased had
gone to Gurudwara. He criminally intimidated the girl Mehar Legha
SC No. 252/09 Page11/77
to kill her and attempted to kill her and then tried to escape from the
spot.
Convict Mithilesh gave a false address to the investigating
agency and also to his employer complainant. To ascertain his criminal
background and to know his past criminal record, the Incharge/SHO,
PS Vasant Kunj sent a letter dated 03/03/2007 and the report of PS
Bathnaha, District Sitamarhi, Bihar was received by him enclosing
therewith the statements of Village Mukhiya Gram Panchayat and also
the member of Panchayat and also statement of Chowkidar recorded
on 01/06/07 alongwith statements of Sh. Neeraj and Shiv Shanker who
have stated that no person by the name of Mithilesh Kushwaha S/o Sh.
Ram Prakash Kushwaha was resident of Village Chakwa, Police
Station Sita Marhi, Bihar. These letters and statements are part of
judicial record. Therefore, past crime record of the accused could not
be ascertained. However, after noticing this fact when the accused was
directed to be produced in hand-cuffs and on being asked his address,
he gave his address on 07/07/2010 as resident of Village Hariharpur,
PO Ramnagra, Police Station Reega, District Seetamarhi, Bihar, but
this given address is yet to be verified.
Convict Mithilesh has given his age as 20 years to the
investigating agency and thrice to the hospital authorities before
recording of his three MLC during investigation of the case. Also at
the time of the police verification, prior to commission of offences in
SC No. 252/09 Page12/77
this case he being a domestic servant of complainant party, gave his
age as 20 years, he moved a false and frivolous application before the
court alleging that he was a juvenile despite admitting his age 20 years
before said authorities.
He also gave a false defence and took the plea of alibi
while he was arrested in the case near the spot while he was running to
escape from the spot. All these facts show that the accused is menace
to the society and there is no chance of his improvement to make him a
normal citizen with normal behaviour. Therefore, I agree with the Ld.
Add. PP assisted by learned Counsel for the complainant that the
accused is liable for the extreme penalty of capital punishment.
Therefore, convict is awarded death penalty by hanging till death in
this rarest of rare case u/S 302 IPC.
In view of the above discussions and keeping in view the
overall facts and circumstances of the case, as regards offence under
Section 394/397 IPC, accused/convict Mithilesh is liable to extreme
penalty of imprisonment for life and to pay fine in the sum of Rs.
2,000/-. In default of payment of fine he shall undergo Simple
Imprisonment for 3 months each offence.
For offence u/S 307, accused is sentenced to undergo life
imprisonment. In addition, he is sentenced to pay fine of Rs 2,000/-. In
default of payment of fine he shall undergo Simple Imprisonment for 3
months.
SC No. 252/09 Page13/77
For offence u/S 201, accused is sentenced to undergo
Rigorous Imprisonment for 7 years. In addition, he is sentenced to pay
fine of Rs 2,000/-. In default of payment of fine he shall undergo
Simple Imprisonment for 3 months.
As regards offence u/S 506 (II), accused is sentenced to
undergo Rigorous Imprisonment for 7 years. In addition, he is
sentenced to pay fine of Rs 2,000/-. In default of payment of fine he
shall undergo Simple Imprisonment for 3 months.
All the substantive sentences of imprisonment shall run
concurrently.
The period of detention already undergone by convict
during the period of investigation and trial of this case shall be set off
against the term of imprisonment imposed against the convict by this
order, as provided under section 428 CrPC.
Judgment and order on sentence be sent to
server(www.delhidistrict courts. nic.in). The death sentence be
submitted to Hon'ble High Court for confirmation. Copy of judgment
and order of sentence be supplied to convict/accused free of cost.
Personal bond and surety bond furnished by accused are cancelled.
File be consigned to record room.
Announced in the
open court on 08/07/2010 (S.K. SARVARIA )
Additional Sessions Judge-01 South
Patiala House Courts/New Delhi
SC No. 252/09 Page14/77
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURT/NEW DELHI
SESISONS CASE NO. 252/2009/2007
CASE ID: 02403R0085192009
State Vs. Mithilesh Kumar Kushwaha
S/o Sh. Ram Prakash Kushwaha
R/o Vill. Chakwa, PS Sita Madhi,
Bihar.
FIR No. 147/07
Police Station Vasant Kunj
Under Sections 302/307/397/506/411/201/392 IPC
Date of Institution of the case
in Sessions Court : 30/05/2007
Date of Institution of the case
in this Court : 27/03/2009
Date on which order was reserved : 02/06/2010
Date of Decision : 01/07/2010
JUDGMENT
The SHO of police station Vasant Kunj has challaned the accused to face trial for the commission of offences punishable under Sections 302/307/397/506/411/201/392 IPC. The learned Metropolitan Magistrate in compliance of provisions under Section 207 Cr.PC.
SC No. 252/09 Page15/77supplied the copies of documents to the accused and committed the case to the Court of Sessions for his trial, by invoking Section 209 CrPC.
BRIEF FACTS OF THE CASE The case of the prosecution is that on 2/3/2007 on receipt of DD No. 28A through Head Constable Babu, SI Partap Singh along with Head Constable Rajvir went to the spot at D-7, 7382, Vasant Kunj Enclave, New Delhi where a crowd of people was found present by them. Bhupender Singh and Mukesh Sehrawat were found holding Mithilesh @Chottu. Kumari Mehar Legha daughter of Shri Amanpreet Singh also met them and her statement was recorded in which she has stated that she used to live in the said house along with her parents and was a student of ninth class. She and her brother are two brother and sister and her maternal grandmother Sujeet Kaur had come to meet them. On 2/3/2007 she had gone to the school for examination and returned at 12.30 p.m. at her house in Vasant Kunj and pressed the call bell. Their servant Mithilesh @Chottu aged about 20 years opened the door, she went inside and asked her servant where was her maternal grandmother and Karan? He told her that they had gone to gurudwara. He asked her whether she wanted to eat something. She replied, let all other come and then they would eat together. He started beating her and she protested. He tried to overpower her by giving fist and leg SC No. 252/09 Page16/77 blows. While weeping, she protested why he was behaving with her like that? He told that he had already killed her maternal grandmother and Karan and would kill her also and then will go with all the articles. He picked up an electric wire and tried to put it around her neck. She bit his hand and rescued her and then ran crying towards the gate of the house and then went running down the stairs and informed Guddi aunt, who used to do the work of ironing of the clothes, that Mithilesh was beating her. On hearing the cries people from the neighbourhood collected there. On seeing them Mithilesh started running away. The neighbour Mukesh Sehrawat and security guard (chowkidar) Bhupender chased Mithilesh and caught hold of him . Somebody made a phone call to the police. Mithilesh had injured her with intention to kill her.
On the statement of Mehar Legha recorded by SI Partap Singh the formal search of the house was undertaken and one female dead body aged about 55/60 yes was found in a wooden box. In the meantime Amanpreet Singh Legha also reached the spot and informed that the dead body belonged to her mother-in-law Surjeet Kaur. On checking the dead body the throat of the dead body was found cut. The clothes on the body were having plenty of blood. On further search of rooms in the flat from under the bed, in the bedroom, one green colour suitcase was found and on checking that dead body of a child aged about 10 years was found in it. Shri Amanpreet Singh Legha informed SC No. 252/09 Page17/77 that the said dead body was of his son Karanvir Singh Legha. The throat of this dead body was also found cut. On seeing dead bodies SI Partap Singh informed telephonically Inspector, Suresh Dagar the then SHO, PS, Vasant Kunj who also reached the spot in the official vehicle along with SI Shiv Singh., SI Narender Singh Head Constable Subhash, Head Constable Nanak Chand. Shri Amanpreet Singh informed them that Mithilesh@Chottu was their servant.
The crime team was called at the spot who reached there and photographed the place of incident and submitted the report. The site plan was prepared by the investigating officer. The accused was arrested and he gave disclosure statement and got recovered the knife used by him in committing murder of the two persons. He also got recovered the broker mobile phone of deceased Surjit Kaur and hammar . The scalp hair of the accused were taken to have comparison report from FSL with the hair recovered from the hand of deceased Surjit Kaur. During the investigation the fingerprints/palm prints of the accused were taken for comparison by Fingerprint Bureau. The statement of witnesses under section 161 CrPC were recorded by the investigating officer. The scaled site plan of the spot was got prepared. The case property was recovered. The post-mortem of the dead bodies was got conducted. On completion of investigation the accused Mithilesh was challaned to face trial, as referred before.
SC No. 252/09 Page18/77CHARGES AND PLEA OF ACCUSED On the basis of material collected by the investigating agency the prima facie case for the offences under sections 302, 394/397, 201, 307 and 506 IPC was made out against the accused. The charges were framed accordingly on 8/8/2008 against him to which the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case the prosecution has examined 24 witnesses in all. Given below is the gist of the statements of prosecution witnesses.
PW1 is Ms Rani Chhabra who stated that on 2/3/2007 she was present at her home and heard the noise of cries. She rushed towards her staircase because she lives at the second floor of the building. When she was coming down the staircase, Mehar Legha was climbing the staircase to come to her. She held her hand and asked what had happened. She ( Mehar Legha) told her , " Chottu mujhe maar raha hai" (Chottu is trying to kill her). The witness stated that the accused Mithilesh was also known as Chottu. Mehar Legha used to reside in a rented flat No. 7382, D 7, Vasant Kunj at first floor of the same building in which her flat is situated. She used to reside with her parents and her brother and her grandmother who had come from Punjab. Mehar Legha was full of blood. There were injuries or scratch SC No. 252/09 Page19/77 marks on her face and there was ligature mark on her neck. She went to the flat of Mehar Legha. The door was opened by accused Mithilesh himself from inside. Mehar Legha had told her that accused Mithilesh has stated that he had killed both her brother and grandmother. When she made enquiry from accused Mithilesh, he told her that both of them had gone to gurudwara.
PW2 Mukesh Shehrawat has stated that on 2/3/2007 he was present in his house and on hearing cries he came out of his flat. He saw accused then present in the court was in the grip of guard Bhupender of their colony and accused was trying to free himself. He was called by aunt Rani Chhabra who told him to help the guard, otherwise that person will run . The witness stated that he reached there and caught hold of accused. He again tried to free himself, and then he gave him little beating. After about 15-20 minutes police reached there and they handed over the accused to the police. The witness stated that he signed the arrest memo of accused ExPW 2/A and personal search memo of accused ExPW 2/B. He also stated that the accused was working as domestic servant in flat No. 7382 of Manjit's family in whose house the murder has taken place. The witness also stated that he used to reside in the flat which is on the ground floor in the same premises.
PW3 is HC Jagdish who was working as duty officer on 2/3/2007 and has proved the copies of the DD No. 28-A and 43-B as SC No. 252/09 Page20/77 ExPW 3/A and B. PW4 is HC Ranbir Singh was also working as duty officer on 2/3/2007 in police station Vasant Kunj and has proved the copy of FIR ExPW 4/A recorded by him and has stated that the four copies of the FI R were handed over to Special Messenger Constable Virender to deliver the same to the senior officers and illaqa magistrate of PS Vasant Kunj.
PW5 Kumari Mehar Legha is the complainant and sister of deceased Karanvir Singh and granddaughter of deceased Surjit Kaur. She stated that the accused had been staying with them for the last six years as a servant. Her parents had taken on rent, since October 2006, the flat No. 7382, D-7, Vasant Kunj. She corroborated the statement given by her to the police, in her statement before the court, and has proved her statement to the police as ExPW 5/A. She also corroborated with the statement of PW1 Rani Chhabra and has stated that her neighbour one Mukesh and one security guard caught the accused. She also stated that on the date of incident the police asked her to get herself medically examined but she was not in proper state of mind and, therefore, she did not accede to the request of the police. Her mother applied Dettol etc on her face and injuries. She also stated that just after 10 days from the incident, they shifted their residence to NOIDA.
PW6 is Doctor Yogesh Tyagi who conducted post-mortem SC No. 252/09 Page21/77 examination on the dead body of Karanvir Singh Legha, aged 12 years, son of Mr. Amanpreet Singh. He found under noted injuries on dead body of Karanvir Singh Legha:
1 Cut throat injuries present over front of neck, 8 cm below chin, below thyroid cartilage, cutting muscles, blood vessels, trachea and easothagoes, exposing cervical vertibra injury. (on Court question the witness explained that the cut was deep upto spinal vertibra.), legnth was 15 cm and width was 4 cm, two skin tags were present over both angles of cut throat injury. Cervical vertibrae are cut at two places, one cm apart.
2 Multiple scratch marks were present front of left shoulder in an area of 5 x 4 cm and varying in size from 3 x 0.5 cm to 1 x .4 cm. 3 Contusion over a. Right ear lobe upper arm, b. right angle of mandible 5 x 5 cm.
After conducting the postmortem he opined that time since death was about 24 hours. Cause of death was shock due to antemortem cut throat injury produced by sharp edged weapon. He proved detailed report Ex.PW6/A, prepared by him. On 03/03/07 IO of this case moved an application before him alongwith the sealed weapon of offence. After opening the seal he inspected the weapon of offence and prepared a sketch Ex.PW6/B. He gave his detailed opinion Ex.PW6/C. As per his opinion, the injuries present over the SC No. 252/09 Page22/77 neck were sufficient to cause death in ordinary course of nature and injuries mentioned in postmortem report were possible with the weapon shown to him except the injuries No. 2 & 3 which were contusions and abrasions.
PW7 is Doctor Arvind Thergaonkar who conducted post- mortem examination on the body of deceased Surjit Kaur and found following injuries on her body:
1 Incised wound on upper part of neck obliquely placed, measuring 14 cm long on front and sides of the neck x 8 cm wide x 4.5 deep.
2 Incised wound on lower part of the neck, measuring 10x 3 cm x 3 cm deep, located 3 cm above suprasternal notch. The upper end of the wound was merged with injury No 1. 3 The index finger on left hand shows cut mark on terminal phalynx, 0.3 cm long, obliquely placed - defence wound.
On internal examination:
Scalp, skull brain- brain was congested and rest of the structures were normal.
Neck and throrax. Effusion of blood was seen in the subcutenious tissues of neck. The structures beneth the injury NO 1 were cut as follows:-
Platysma, trachata, sternomastoid mucle, jugular vein and cerevial merous, both carotid arteries and vertebral colume at the label of SC No. 252/09 Page23/77 second and third cervical verebra showed cut injuries. Structure below injury No. 2 was also cut like platysma, sternomastoid, vessels etc. The lungs were pale. Heart was normal.
Abdomen and pelvis-
Stomach was empty. Liver/spleen, kidneys - all were pale. The blood swabs, clothes, foreign material (salt) scalp were preserved, sealed and handed over to the IO for CFSL examination.
In his opinion, all the injuries were antermortem in nature. The cause of death was haemorrhagic shock due to cut throat injury. The injury No 1 & 2 were sufficient to cause death in ordinary course of nature. The injuries were possibly caused by sharp cutting weapon like knife. His detailed report is Ex PW 7/A. He opined that injuries described in the postmortem report Ex.PW7/A were caused by the weapon, submitted for the examination. This subsequent opinion is Ex.PW7/B. PW8 Amanpreet Singh is the father of deceased Karanvir Singh Legha and also of PW5 Mehar Legha. He stated that Mithilesh also known as Chottu was their domestic servant and was also living with them since the last 6 1/2 years. He identified accused Mithilesh in the court. He stated that on 2/3/2007 his wife and daughter left for Loreto Convent School at about 7.30 in the morning. He left for work at 8.0 5 AM. At that time his wife's aunt (Tai) Surjit court and his son Karanvir Singh were at home along with Mithilesh Kumar. At about SC No. 252/09 Page24/77 1.15 in the afternoon he received the call from his daughter, she was crying and informed him that accused had tried to kill her. She informed him that Chottu had killed her grandmother and her brother.
The witness stated that he immediately started for home in the company vehicle. On reaching home he found large number of people and police gathered outside, as well as, inside his flat. This witness proved the sketch of the knife got recovered by the accused. The sketch of the knife is ExPW 8/A. He proved that seizure memo of knife and plastic jar containing salt as ExPW 8/B, the electric wire was recovered by police from the spot vide memo ExPW 8/C, the pauncha was recovered by seizure memo ExPW 8/D, the wooden box from which the dead body of his mother-in-law was recovered was seized vide memo ExPW 8/E, green colour suitcase from which the dead body of his son was recovered vide seizure memo Ex PW8/F, newspaper clipping ExPW 8/J was seized by police vide memo Ex PW8/H. He proved the recovery memo of jewellery and money got recovered by accused as ExPW 8/K. He also corroborated with the statement of PW2 regarding the arrest memo ExPW 2/A and personal search memo ExPW 2/B of the accused. He also stated that he identified dead body of Surjit Kaur by statement ExPW 8/L and after post-mortem he received dead body vide receipt ExPW 8/M. This witness has also identified four Karas, one chain, one pair of jhumka, purse and Rs. 9730/-- collectively as Ex P1. He also SC No. 252/09 Page25/77 stated that on 3/3/2007 police again came to his flat along with accused and accused disclosed that he had broken the mobile phone belonging to Surjit Kaur so that she may not call anyone. The police recovered the broken Mobile and its battery and accused disclose that he had used the hammer to break the mobile. The witness stated that the broken Mobile and hammer (hathodi) were converted into a sealed pulanda separately and sealed with the seal of SD. Both the pullandas were seized vide seizure memo ExPW 8/P. The witness identified the T-shirt as Ex P2 and pyjama as Ex P3 and a pauncha as Ex P4, jar containing salt Ex P5, green colour suitcase in which the dead body of Karanvir was found as Ex P6, wooden box from which dead body of Surjit Kaur was recovered as Ex P7, khes Ex.P8, newspaper Ex P9, plastic pennis Ex P 10 and P 11, bunch of thread Ex P 12, small plastic jar Ex P 13, black colour small plastic jar Ex P 14, small plastic jar containing cemented pieces of floor Ex.P15, pieces of cemented floor of the balcony from where dead body of Surjit Kaur was recovered Ex PW 15 (Colly), foot mat containing brown colour stains Ex P 17, the clothes belonging to his son Karanvir, i.e., T-shirt, track pent, sweeter, one underwear and one baniyan as Ex P18 (Colly), clothes, i.e., one shirt, one salwar, one shawl, one sweeter, pair of woollen socks, one underwear , one handkerchief, one under vest and one woollen thread as Ex P19 (Colly), the knife got recovered by the accused Ex P20, black colour plastic wire used by accused to strangulate Mehar Legha SC No. 252/09 Page26/77 Ex P 21, one hammer used for breaking mobile phone into three pieces Ex P 23 and the mobile phone Ex P 23, the jar got recovered by accused Ex P 24.
PW9 is RPS Gill who along with some Army officers went to Safdarjung hospital mortuary on 3/3/2007 and identified the dead body of Mrs Surjit Kaur and Karanvir Singh Legha and gave statements ExPW 9/A and ExPW 9/B respectively regarding identification of dead bodies, to the investigating officer.
PW 10 is SI Narender Singh who stated that on 2/3/2007 he along with HC Subhash, HC Nanak Chand and Constable Inderjit reached at the spot, i.e., D-7/7382, Vasant Kunj, New Delhi where SI Partap Singh was already present. SHO Inspector Suresh Dagar also arrived at the spot in his Government Gypsy. Crime team was called at the spot and reached there. Photographs of the spot were taken. Meanwhile, HC Rajvir also came at the spot and handed over the copy of the FIR which he handed over to the IO. SHO Inspector Suresh Dagar prepared the site plan at the instance of Mehar Legha. Dead bodies of Surjit Kaur aged about 50-55 years and Karanvir aged about 10 years were recovered and were sent to mortuary Safdarjung Hospital, in a Tata 407 bearing No. 7411, after removing them from the box and the suitcase. This witness corroborated with the statement of PW8 Amanpreet Singh regarding recovery of wooden black box vide memo ExPW 8/E, preparing of sketch of the knife ExPW 8/A, SC No. 252/09 Page27/77 seizure memo of the knife and the plastic jar containing salt ExPW 8/B, recovery of cash and jewellery vide memo ExPW 8/K, recovery of a news paper clipping to show modus operandi and use of weapon seized vide memo ExPW 8/H, recovery of bloodstained clothes of the accused vide memo ExPW 8/G, the recovery of wet pauncha (mopping clothe) from the backside of the balcony by which accused cleaned the floor after committing the murders lying between the boxes vide memo ExPW 8/D, recovery of hammer and broken mobile phone vide memo ExPW 8/P. He also identified the case property Ex P1 to Ex P26 and corroborated with the statement of PW2 Mukesh Shehrawat regarding the arrest of accused and taking of his search vide memos ExPW 2/A and ExPW 2/B. PW 11 is Mrs Guddi who stated that for the last 14 years she used to iron the clothes in front of Flat No. D-7/7382, Vasant Kunj, Delhi. She used to collect the clothes from the houses of the residents and after ironing them she used to deliver the clothes to the residents.
On 2/3/2007 at about 12.45 noon Mehar Legha came to her weeping at the place where she was ironing the clothes and told her,"
Chottu mujhe maar Raha hai, mujhe bachao". She stated that Chottu was domestic servant at the house of Mehar Legha. She identified the accused Chottu then present in the court. She stated that thereafter, she took Mehar Legha in flat No. 7383 of Mrs Rani Chhabra. Mehar SC No. 252/09 Page28/77 Legha had told her that Chottu was still inside her house. They went to flat. 7382, i.e., house of Mehar Legha. Mrs Rani knocked at the door, accused opened the door and pushed them aside and ran towards downstairs. Meanwhile, they had raised an alarm due to which the people of the locality including chowkidar gathered there and accused was apprehended by them. Police was informed. Police reached the spot and accused was handed over to the police in her presence.
PW 12 is HC Rajbir Singh who along with SI Pratap Singh reached the spot on receipt of DD. 28 A. He stated that SI Partap Singh recorded the statement of Mehar Legha and made endorsement on it and headed over the same to him for getting the case FI R registered. He took the rukka to P.S. Vasant Kunj and got the formal FIR in this case registered. After getting the case registered, he returned back to the spot with the copy of the FIR and original rukka. Inspector Suresh Dagar was also present at the spot when he returned back to the spot after getting the case registered. He handed over the copy of FIR and original ruqqa to Inspector Suresh Dagar.
PW 13 is Inspector Udham Singh who on 2/3/2007 was posted as SI-Incharge Mobile Crime Team, South-West District. On that day, on receipt of wireless set message, he along with his Mobile crime team including fingerprint expert ASI Dhramvir, photograper HC Ravinder reached the spot. The place of incident was on first floor. He prepared a detailed report ExPW 13/A. SC No. 252/09 Page29/77 PW 14 is SI Partap Singh who stated that on 2/3/2007 he received copy of DD 28 A ExPW 3/A through Head Constable Babu PK. Thereafter, he along with Head Constable Rajbir visited the spot. As soon they reached there Constable Surinder handed him over copy of DD 40 B ExPW 3/D. Many people had collected there. Bhupender Singh and Mukesh produced accused Mithilesh @Chottu who then was present in the court and witness correctly identified him. Kumari Mehar Legha was also present there and he recorded her statement ExPW 5/A. He also stated about recovery of dead body of Surjit Kaur and the boy Karanvir Legha from the wooden box and green colour suitcase respectively. He stated that after some time SHO Inspector Suresh Dagar alongwith SI Shiv Singh, SI Narender Singh, HC Subash and HC Nanak Chand reached there. Amanpreet Singh Legha and his daughter Mehar Legha identified accused as their servant. The witness proved his endorsement ExPW 14/A and stated that he handed over the rukka to HC Rajbir Singh for registration of the case. HC Rajbir Singh returned to the spot and handed over ruqqa and copy of FIR to Inspector Suresh Dagar, SHO, P.S. Vasant Kunj who had taken up the investigation. He stated that Investigating Officer prepared site plan on pointing out of Mehar Legha, Crime Team visited the spot and inspected the place of occurrence. Photographs were taken up. The witness corroborated with the statement of PW8 Amanpreet Singh regarding recovery of wooden box vide seizure memo ExPW 8/E, SC No. 252/09 Page30/77 recovery of green colour suitcase vide seizure memo ExPW 8/F, sketch of the knife ExPW 8/A, seizure memo of the knife and plastic container(jar) containing salt collectively ExPW 8/B, the recovery of electric wire vide seizure memo ExPW 8/C, recovery of currency and gold items vide memo ExPW 8/K, recovery of bloodstained clothes vide seizure memo ExPW 8/G, the recovery of duster (pauncha) vide seizure memo ExPW 8/D, recovery of one newspaper cutting from the pent, which accused was wearing, vide memo ExPW 8/H. He also proved that disclosure statement of the accused was recorded which is ExPW 10/B. He also identified the case property Ex P1 to Ex P 21.
PW 15 is HC Ravinder Singh who on 2/3/2007 was posted as HC Photograper in Crime Team , South West District. He stated that he went with the Crime Team Incharge SI Udham Singh to the spot and took 15 photographs of the place of occurrence. He proved the photographs as ExPW 15/1 to 29.
PW 16 is Constable Virender Singh who stated that on 2/3/2007 he was posted as Constable and was working as messenger in P.S. Vasant Kunj. Duty officer handed over to him the special report of the case and he delivered the same to the area MM and senior police officers.
PW 17 is ASI Dhramvir Singh who on 2/3/2007 was working as Fingerprint Expert, Crime Team South-West District. He lifted chance prints from wooden box of black colour from the house SC No. 252/09 Page31/77 in question. He proved his fingerprint expert report as ExPW 17/A. He stated that he sent the lifted chance prints and report to Finger Print Bureau, Malviya Nagar.
PW 18 is Inspector Rajender Pal who stated that on 26/4/2001 he was posted at P.S. Vasant Kunj as SHO. The investigation of this case was assigned to him. During the course of investigation, the exhibits which were lying deposited in the malkhana were sent by him through SI Shiv Singh to FSL Rohini from where the result ExPW 18/A and ExPW 8/B and ExPW 18/C were received. He stated that he recorded the statement of witnesses, collected the scaled site plan and after completion investigation prepared the challan.
PW 19 is Constable Rais Siddiqui who stated that on 2/3/2007 he was posted at PCR. At about 1304 an information was received from telephone. 9910329371 given by one Rani Chhabra. This information was lodged vide Form ExPW 19/A. PW 20 is SI Shiv Singh who stated that on 7/3/2007 on the instruction of the investigating officer he went to Safdarjung hospital mortuary and collected the articles in sealed parcels from the lab technician which were in sealed condition seized during the post- mortem of bodies of Surjit Kaur and Karanvir. These items were seized vide memo ExPW 20/A. He came back to the police station and deposited the case property in malkhana and handed over the memo to the investigating officer. On 30/4/2007 upon the instruction of SC No. 252/09 Page32/77 investigating officer, he collected 21 parcels from MHCM, out of these 21 parcels 12 sealed with the seal of SD and remaining sealed with the seal of department of forensic medicine SJH. He deposited these parcels, except three parcels with FSL Rohini, untampered. On his return to the Police Station he handed over the copy of RC's ExPW 20/C as token of receipt. He also collected the scaled site plan prepared by the draughtsman and handed over the same to the investigating officer.
PW 21 is Inspector Suresh Dagar, the investigating officer, who proved the various steps taken by him during investigation of the case. He corroborated with the statement of PW 14 SI Partap Singh regarding the situation at the spot on the date of incident and calling of the crime team with photograper at the spot and the presence of two dead bodies of Surjit Kaur and Karanvir Singh at the spot. He corroborated with the statement of PW 13 Inspector Udham Singh regarding crime team proceedings and the report ExPW 13/A. He stated that he prepared the site plan ExPW 21/A and corroborated with the statement of PW2 Mukesh Shehrawat regarding arrest of the accused and taking of his personal search vide memos ExPW 2/A and B. He also corroborated with statement of PW10 SI Narender Singh regarding recording of disclosure statement of accused ExPW10/B. He corroborated with the statement of PW8 Amanpreet Singh Legha with regard to recovery of case properties seized vide seizure memos ExPW SC No. 252/09 Page33/77 8/A to ExPW 8/J, identification of the dead bodies vide memos ExPW 8/L, ExPW 8/M, ExPW 9/A and B. He also stated that the post-mortem report of both the deceased are ExPW 7/A and ExPW 6/A. He stated that at the time of post-mortem of Surjit Kaur he produced sealed parcel containing the knife after taking the sealed parcels from MHCM vide RC No. 17/21. He moved the application for medical opinion which is ExPW21/H. The opinion given by the Doctor is ExPW 7/B which is regarding post- mortem report of Mrs. Surjit Kaur. Similarly, Doctor Yogesh Tyagi gave the medical opinion regarding the weapon of offence in connection with the post-mortem report of Master Karanvir. He stated that he has recorded the statement of witnesses, deposited the case property in the malkhana. He collected fingerprints of the accused which were sent subsequently with the chance prints lifted from the spot. The Fingerprint Bureau report is ExPW 21/K which was prepared after comparison of chance prints lifted by crime team and the fingerprint supplied by him. He also identified the case property Ex P1 to Ex P 24 which was seized by him vide said memos. He also stated that he collected the PCR Forms ExPW 1/B and ExPW 1/C. He also stated that he was transferred from the Police Station on 24/4/2007 and that the investigation was assigned to some other officer.
PW 22 is Head Constable Davender who has stated that on 2/3/07 he was posted as MHCM in P.S. Vasant Kunj. Insp Suresh SC No. 252/09 Page34/77 Dagar deposited 15 parcels sealed with the seal of SD. The entry was made at Sr No. 2300 and on 3.3.07 he deposited one parcel sealed with the seal of SD the entry was made at Sr No 2303 and on 7.3.07 he deposited 07 sealed parcels and sample seal all having seal of Safdarjung Hospital and entry was made at Sr No. 2311 and on 30.3.07 SI Shiv Singh deposited two sealed parcels sealed with the seal of Safdarjung Hospital and sample seal and entry was made at Sr. No. 2354. On that day the witness had brought the original register no. 19 in the Court, the copy of the entries is proved by him as Ex 22/A. On 30/4/07 18 parcels were sent vide RC No 54/21 and on 7.5.07 three sealed parcels were sent vide RC No 57/21. On that day he had brought the original, copies of entries are proved as Ex. PW22/B and C. The witness stated that till the parcels remained with him seals remained intact.
PW 23 is Surder Lal. He has stated that on 02/03/07, he was posted as Constable in Police Station Vasant Kunj. On that day Duty Officer gave him a copy of DD No. 43B which he took to the spot at D-7, H No. 7382, Vasant Kunj. Copy of the DD is also proved on record as Ex.PW3/B. The DD No. 43B was given by him to SI Pratap Singh. His statement was recorded by the investigating officer.
PW 24 is Const Brahm Singh. He has stated that on 7.5.07 he took the case property of this case which was in three pulandas vide RC 57/21 which he deposited with FSL Rohini and gave back the SC No. 252/09 Page35/77 receipt copy of RC in acknowledgment to the MHCM. Case property was sealed with the seal of SD and Department of Forensic Medicine SJH. No tampering took place with case property so far as it remained in his custody.
PLEA AND DEFENCE OF ACCUSED In the Statement in the Section 313 CrPC the accused has either denied the incriminating circumstances emerging from prosecution case put to him or has expressed his ignorance about the same. Even he expressed his ignorance about the fact that he was also known as Chottu. He has stated that the witnesses have deposed against him as they are interested witnesses. The case, according to him, has been planted by police with the connivance of complainant without any ground or belief. His defence is that he was illegally arrested from the place in Shastri Nagar and the recovery was planted by complainant with connivance of the police when actual accused was not found.
In support of its case the accused has examined three witnesses in all. DW1 is Brijesh Kumar who stated that on 2/3/2007, accused Mithilesh was with him from 12 to 1:30 PM. Police came at about 1.30 PM and took him away. DW2 is Rajesh Kumar who stated that on 2/3/2007 accused Mithilesh Kumar came to his factory at about 11:55 am. At 11.55 am Anil left the factory along with accused SC No. 252/09 Page36/77 Mithilesh and had told to reach at their quarter. DW3 is Anil Kumar who stated that on 2.3.2007 accused Mithilesh Kumar left for quarter at 11.55 am. At around 12 noon, he along with accused reached at quarter. He and accused remained there till 1.30 pm and police reached at 1.30 pm and apprehended accused.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor for the state assisted by learned counsel for complainant Shri SP Ahluwalia advocate, learned Amicus curie Shri N K Shrivastava, advocate for accused and have gone through the record of the case, written argument filed on behalf of complainant and the relevant provisions of law.
The present case is based on circumstantial evidence so far as the charges of murder of master Karanvir Singh and of Mrs Surjit Kaur and robbery in the house in question are concerned. The important aspects and circumstances emerging in this case are being dealt with under different headings for the sake of convenience and the proper understanding and appreciating the evidence on record. But before that it would be appropriate to have a glance at the legal position as to the cases based on circumstantial evidence which is relevant for the charges against the accused under sections 302 and 394/397 IPC.SC No. 252/09 Page37/77
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
In Venkatesan Vs. State of Tamil Nadu AIR 2008 Supreme Court 2369, it was held as under:
"2. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from facum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of SC No. 252/09 Page38/77 circumstances from which the existence of the principal fact can be legally inferred or presumed."
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed. (See Dukhram Nath Vs. Commercial Credit Corpn Ltd. AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. (See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320). The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554).
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
SC No. 252/09 Page39/77"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC))"
In a recent pronouncement in Raju Vs. The State by Inspector of Police - AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other SC No. 252/09 Page40/77 person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC
316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350);
Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt SC No. 252/09 Page41/77 of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so SC No. 252/09 Page42/77 established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first SC No. 252/09 Page43/77 instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622).
Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(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;SC No. 252/09 Page44/77
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
(2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In Anil Kumar Singh Vs. State of Bihar (2003) 9 Supreme Court Cases 67 relied upon by learned counsel for the accused it was held as under:
"8. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever SC No. 252/09 Page45/77 strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof "
In the backdrop of above legal position it is to be seen whether the prosecution has been able to prove every piece of chain of incriminating circumstances, dealt below, against the accused beyond reasonable doubt to prove his guilt.
EXTRAJUDICIAL CONFESSION PW 5 complainant Mehar Legha has stated in her statement that when she asked as to why accused was behaving in that manner (i.e., why he was beating her), he told her that he had killed her grandmother and brother. He told her that he would kill her also and would take away whatever jewellery and money he had collected.
PW 1 Rani Chhabra has stated that she went to the flat of Mehar Legha. The door was opened by accused Mithilesh from inside. Mehar Legha asked her to enquire from the accused as to where were her brother and grandmother. Mehar Legha told her that accused Mithilesh has stated that he has killed both of them.
Normally speaking, the hearsay evidence is inadmissible in evidence, as a result, it cannot be produced in the court proceedings, except as provided in the specific exceptions like dying declaration, admissions, doctrine of res gestae etc. SC No. 252/09 Page46/77 Section 6 of the Indian Evidence Act deals with the relevancy of facts forming part of the same transaction. It deals with the rule of res gestae. The facts which, though not in issue, are so connected with the fact in issue as to form part of the same transaction, are relevant, according to the said Section 6, whether they occurred at the same time and place or at different times and places. The four illustrations are also given in this Section 6 to explain the principle.
In a case, the accused assaulted the deceased, and made a statement as to the said fact to the brother of the deceased within half- an-hour of the act. The time gap between the act and the statement being not very long, such evidence was found admissible under Section s.6 Indian Evidence Act. {See Venkatesan V. State 1997 CrLJ 3854 (Mad)}.
In the fact situation of the present case the statement made by prosecution witness PW5 Kumari Mehar Legha to the other public witness PW1 Rani Chhabra soon after the incident that accused told her that he killed her grandmother Manjit Kaur and brother Karanvir, is admissible in evidence by virtue of section 6 of the Indian Evidence Act. Similarly statement made by accused to PW Mehar Legha that he killed his grandmother, brother and would escape with articles is extra judicial confession of accused regarding alleged murder of two victims and robbery in question in the light of Venkatesan's case (supra).
SC No. 252/09 Page47/77LAST SEEN EVIDENCE PW8 Amanpreet Singh Legha has stated that on 2/3/2007 his wife and daughter left for Lorento Convent School at about 7.30 in the morning. He left for work at 8.55 AM. At that time his wife's aunt (Tai) Sujeet Kaur and her son Karanvir Singh were at home along with Mithilesh Kumar. PW5 Kumari Mehar Legha stated that on 2/3/2007, she left home to go for her school Loreto Convent. On that day, her parents namely Leutenant Col Amanpreet Singh, her mother Ms Manjit Legha, her brother Karanvir aged about 12 years and her grandmother Smt Manjit Kaur who had come from Punjab to visit them and the accused then present in the court were staying in their house. Accused had been staying with them for the last six years as a servant. She also stated in the further examination-in-chief that on that day, her mother had also accompanied her to the school because she is a teacher in the said school. On that day, she had to appear in the School examinations and therefore, she was free by 12 but her mother was still on school duty. In the cross-examination she has stated that she had made a telephone call to her father from the flat of Rani Chhabra.
In view of the above statements of PW8 Amanpreet Singh and PW5 Kumari Mehar Legha which also stood the test of cross- examination, it is clear that the accused was last seen in the house with the two deceased persons as the remaining three persons PW8 SC No. 252/09 Page48/77 Amanpreet Singh, his wife Manjit Kaur and PW5 Mehar Legha had left the home in the morning. Therefore, the important circumstance of accused last seen with the two deceased persons is established on record.
RECOVERY OF WEAPON OF OFFENCE PW 10 SI Narender Singh has proved the disclosure statement of the accused ExPW 10/B. PW8 Amanpreet Singh, PW14 Partap Singh, PW10 Narender Singh and the investigating officer PW21 Inspector Suresh Dagar have proved the sketch of the knife ExPW 8/A got recovered by the accused along with salt box vide memo ExPW 8/B. Therefore, the recovery the knife Ex P20 as weapon of offence at the instance of accused from the kitchen of the flat in question is proved by the prosecution. Further, as per medical evidence and opinions of the two Doctors ExPW 6/C and ExPW 7/B, discussed below, the injuries on the person of the two deceased persons may have been caused by said knife.
MEDICAL EVIDENCE PW6 Doctor Yogesh Tyagi has conducted post-mortem on the dead body of Karanvir Singh Legha on 3/3/2007 and has proved the post-mortem report ExPW 6/A showing the injuries on the dead body of the victim Karanvir, referred before under the heading SC No. 252/09 Page49/77 "PROSECUTION EVIDENCE".
He gave the opinion that the cause of death was shock due to antemortem cutthroat injury produced by sharp edged cutting weapon. In the subsequent opinion given by him ExPW 6/C he has opined that the injury present over the neck was sufficient to cause death in ordinary course of nature. He has also given opinion that the injuries mentioned in the post-mortem report are possible with the weapon sketch of which is ExPW 6/B (which is same as the sketch of the knife ExPW 8/A prepared by the investigating officer at the same knife recovered and sent by the investigating officer for medical opinion).
PW7 Dr. Arvind Thergaonkar conducted the post-mortem examination on the dead body of deceased Surjit Kaur and found injuries on her dead body detailed in the statement of PW7 Dr. Arvind under the heading "PROSECUTION EVIDENCE".
He proved the post-mortem report ExPW 7/A and also gave subsequent opinion ExPW 7/B that the injuries described in the post- mortem report could be caused by the weapon, that is, the knife recovered at the instance of the accused.
Therefore, the prosecution has been able to prove the medical evidence to connect the weapon of offence recovered from accused with the injuries inflicted on the person of two deceased persons, Ms. Surjit Kaur and Master Karanvir.
SC No. 252/09 Page50/77REPORT OF FINGERPRINT BUREAU The four chance prints Q1 to Q4 were taken from wooden box (black colour) in which the dead body of Mrs Surjeet Kaur was recovered in the flat in question, by fingerprint expert PW17 ASI Dhramvir Singh. The said chance prints were sent to office of Director, Fingerprint Bureau, Crime Branch, Office Complex PTS Malviya Nagar vide letter ExPW 17/A. The report of the Director Fingerprint Bureau ExPW 21/K shows that the three chance prints Q2 to Q4 were unfit for comparison. However, the chance print marked Q1 was found to be identical with the left palm print portion marked S1 of the palm impression slip of accused Mithilesh Kumar Kushwaha. In the written arguments filed on behalf of the complainant reliance is placed upon Jaspal Singh v. State of Punjab, A.I.R.1979 (Supreme Court) 1708 wherein following observations were made:
"..........................................The thumb impression of Tej Kaur on the alleged statement was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr. K.S. Puri clearly demonstrates that the thumb impression on the statement Exhibit P-B was not of Tej Kaur but was of some other SC No. 252/09 Page51/77 woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement Ex. P-B was forged but also by the categorical statement of PW6 wherein she denied having made any such statement before the Doctor. The Doctor although examined as a witness in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Doctor should be called upon to identify Tej Kaur, PW6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh. P-B before the Doctor. In these circumstances the refore the evidence of the Doctor does not appear to be of any assistance to the defence."
Although in the present case what Fingerprint Bureau in its report ExPW 21/K has confirmed is that left palm print portion of the palm of accused is identical with the chance print Q1 found on the wooden box in question and the report is not with regard to thumb impression distinguishing this case from the Jaspal Singh's case (supra), but the fact that chance print portion of of the palm of accused SC No. 252/09 Page52/77 was found identical with the admitted palm print of accused is certainly one of the incriminating circumstances appearing in the case against the accused.
MOTIVE The totality of facts and circumstances of the case leads to the inference that the motive of the accused in committing murder of two deceased persons was to commit robbery and escape with the gold jewellery and cash from the flat in question.
ACCUSED BEING DOMESTIC SERVANT PRESENT ALONE WITH TWO DECEASED PERSONS PW8 Amanpreet Singh has stated that Mithilesh Kumar also known as Chottu, their domestic servant was also living with them since the last 6 1/2 years. PW5 Kumari Mehar Legha has stated in the examination-in-chief that accused had been staying with them for the last six years as a servant. PW1 Rani Chhabra has denied the suggestion in the cross-examination that accused was only a passerby and was not a servant in the flat of Mehar Legha. PW2 Mukesh Sehrawat has stated that accused was working as a domestic servant in the flat No. 7382 of Manjit's family in whose house the murder has taken place. He also denied the suggestion in the cross-examination that accused was a passerby. The photographs dated 21/10/2006 are SC No. 252/09 Page53/77 filed on behalf of complainant with the written argument to show that accused was working in the kitchen etc in the house of the complainant. The evidence of the before mentioned witnesses clearly shows that the accused was working as domestic servant with the complainant and the family.
There are several indications and incriminating material in the prosecution evidence to show that accused alone was with the two deceased persons in the flat in question at the relevant time. One, being a domestic servant he is ordinarily presumed to be present in the flat. Two, PW8 Amanpreet Singh has stated in the examination-in-chief that on 2/3/2007 his wife and daughter left for Loreto Convent School at about 7.30 in the morning. He left for work at 8.0 5 AM. At that time his wife's aunt (Tai) Surjit Kaur and his son Karanvir Singh were at home along with Mithilesh Kumar. Three, PW5 Kumari Mehar Legha has stated in the examination-in-chief that she came back to her flat at 12.30 p.m. When she reached her flat which was on the first floor, accused opened the door from inside. Four, PW1 Rani Chhabra who accompanied Mehar Legha, after the latter informed her that accused was beating her and has stated that he has killed her brother and grandmother, has stated that she went to the flat of Mehar Legha. The door was opened by accused Mithilesh himself from inside. Five, PW11 Guddi who accompanied them has also stated that accused opened the door and pushed them aside and ran towards downstairs.
SC No. 252/09 Page54/77From the above it is clear that not only accused was the domestic servant with the family of complainant Mehar Legha, but also, he was present in the flat in question along with the two deceased persons after the three other family members PW5 Mehar Legha, PW8 Amanpreet Singh and his wife had left the flat in the morning. Therefore, the accused alone was present in the flat in question with the two persons who had been murdered in the flat.
In Prabhakar Jasappa Kanguni v. State of Maharashtra, A.I.R. 1982 (SC) 1217 relied upon by learned counsel forcomplainant it was held:
"16. The other circumstances listed above had also been finally established, once circumstance (a) is established, then, taken in conjunction with the other circumstances, particularly the undisputed fact that at or about the time of Malti's death, no third person excepting the accused and the deceased, was present in the house, it will inescapably lead to the conclusion that in all human probability, it was the accused-appellant and none else, who had murdered the deceased by strangulating her to death."
In State of U.P. v. Dr. Ravindra Prakash Mittal, A.I.R.1992 (SC) 2045 also relied upon by learned counsel forcomplainant the following observations were made:
SC No. 252/09 Page55/77"41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning."
As already stated the accused alone was present being domestic servant in the flat in question with the two deceased persons. Therefore, in the light of Prabhakar Jasappa Kanguni's case (supra) and Dr. Ravindra Prakash Mittal's case (supra) presumption of commission the two murders by him arises unless he gives proper explanation and acceptable defence that someone else has committed these two murders.
ACCUSED TRIED TO ESCAPE FROM THE SPOT In the cross-examination conducted on behalf of State PW1 Rani Chhabra has explained that she had slapped the accused in that flat and he tried to escape but he was caught by security guards etc. PW2 Mukesh Shehrawat has stated that he saw the accused in the grip of guard Bhupender of their colony and accused was trying to free SC No. 252/09 Page56/77 himself. The witness stated that he was called by aunt Rani Chhabra who told him to help guard, otherwise that person will run away. He reached there and caught hold of him. He again tried to free himself, then he gave him little beating. After about 15-20 minutes police reached there and they handed over accused to the police. This witness proved the arrest memo of the accused ExPW 2/A and personal search memo ExPW 2/B. PW5 Mehar Legha has stated that Rani Chhabra caught the accused and also slapped her. Accused was able to escape. The witness stated that her neighbour Mukesh and one security guard, however, caught him. PW 11 Guddi has stated that she, Rani and Mehar Legha went to flat No. 7382, i.e., house of Mehar Legha. Mrs Rani knocked at the door and asked the accused to come out. She opened the door and pushed them aside and ran towards downstairs. Meanwhile, they had raised an alarm due to which the people of the locality including chowkidar gathered there and accused was apprehended by them. Police raided the spot and accused was handed over to the police in her presence.
In Kalloo Passi Vs. State 2009 (4) LRC 129 (Del) (DB), it was observed by Division Bench of our Hon'ble High Court as follows:
"16. It is settled law that mere absconding by itself does not necessarily lead to a conclusion of a SC No. 252/09 Page57/77 guilty mind. The act of self-preservation is such that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. For instance, the circumstance of abscondence can be extremely fatal if the prosecution is able to prove that the victim was last seen in the company of the accused and that the accused is absconding after the death of the victim. Normally, the courts are disinclined to attach much importance to the act of absconding, treating as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused (see the decision of Supreme Court reported as Matru Vs. State of UP, AIR 1972 SC 1050)."
In the light of the evidence produced by the prosecution it is clear that after the complainant made hue and cry and people from the neighbourhood collected, accused tried to run away and was overpowered and arrested by the security guard Bhupender and PW4 SC No. 252/09 Page58/77 Mukesh Shehrawat. The fact that accused tried to escape from the spot assumes importance in the light of the fact that the prosecution has been able to successfully prove that accused was last seen with two deceased and accused and accused alone was the person with the two victims in the flat in question at the time of commission of their murder. Therefore, in the light of Kalloo Passi's case (supra) and Matru's case (supra), the fact that accused who was last seen with the two deceased victims had tried to abscond from the scene of the crime is extremely fatal circumstance against him.
RECOVERY OF TWO DEAD BODIES The Investigating Officer Inspector Suresh Dagar, PW8 Amanpreet Singh, PW14 SI Partap Singh, PW10 SI Narender Singh proved that a wooden black box was seized vide memo ExPW 8/E by the investigating officer in which the bloodstained dead body of deceased Sujeet Kaur was found in the flat in question. The same witnesses have also proved that one green colour suitcase was taken out from underneath the bed in the bedroom in the flat in question in which the bloodstained dead body of Master Karanvir Singh was found and taken out and the green colour suitcase was seized vide memo ExPW 8/F. In this manner the prosecution has been able to prove recovery of said two dead bodies from the flat in question.
SC No. 252/09 Page59/77RECOVERY OF BLOODSTAINED CLOTHES OF THE ACCUSED
The prosecution through its witnesses Investigating Officer PW21 Inspector Suresh Dagar, PW8 Amanpreet Singh, PW14 SI Partap Singh, PW10 SI Narender Singh has proved that the accused while in police custody got recovered from the garage at the ground floor the blood sustained clothes which he had worn at the time of committing murder of the two victims in this case. The said clothes were red colour pyjama and one white colour full sleeves T-shirt and both the clothes were bloodstained and were seized vide memo ExPW 8/G. The recovery of these bloodstained clothes of the accused assumes significance in the light of FSL report ExPW 8/B showing that T-shirt and pyjama were found having human blood 'A' Group. The suitcase and wooden box recovered, in which the dead bodies of the victims were found, were also found to contain the same Group of blood. Therefore, inference can be drawn that both victims Ms. Surjit Kaur and Master Karanvir had blood Group 'A' and the blood of same Group was found on blood stained clothes of the accused. In Murugan v. State of Tamil Nadu 2008 X AD (SC) 502, the Apex Court has observed as follows:
"9. .................. there is nothing to doubt the recovery of the apparels of the accused made by the investigating officer. The recovery at the instance of SC No. 252/09 Page60/77 the accused raises presumptions of guilt as against him."
Therefore, the fact that accused got recovered his blood stained clothes having same blood group as of deceased is a strong incriminating circumstance appearing against accused in this case.
RECOVERY OF ORNAMENTS AND CASH The prosecution witnesses Investigating Officer PW21 Inspector Suresh Dagar, PW8 Amanpreet Singh, PW14 Partap Singh, PW10 SI Narender Singh have proved the recovery of cash of Rs. 9730/--, one gold colour kara with four jhumka, two gold colour metal jhumka, one gold colour metal chain in a cloth purse which were seized vide memo ExPW 8/K after disclosure statement of accused who was in police custody and took the police party to the place of recovery in the ground floor at the garage of flat No. 7382/D 7, Vasant Kunj. Since, the accused was living in the said garage attached to the flat in question, he shall be deemed to be in possession of the said cash and stolen ornaments.
RECOVERY OF OTHER CASE PROPERTY In addition to the above articles recovered, the prosecution has also proved that the box with salt, out of which the salt was spread by accused on the dead bodies, was recovered along with the weapon SC No. 252/09 Page61/77 of offence, the knife, vide seizure memo ExPW 8/B. The wet bloodstained paucha , with the help of which the accused has cleaned the blood from the floor was got recovered by accused vide memo ExPW 8/D, the newspaper clipping ExPW 8/Jshowing the manner of cutting the throats in different poses and photographs was seized vide memo ExPW 8/H, . These articles were seized by Investigating Officer Inspector Suresh Dagar in presence of PW8 Amanpreet Singh, PW14 Partap Singh, PW10 SI Narender Singh. The hammer (hathodi) and the broken mobile phone of deceased Sujeet Kaur was seized vide memo ExPW 8/P at the instance of accused on the next day, i.e., 3/3/2007 by Investigating Officer Inspector Suresh Dagar in presence of PW8 Amanpreet Singh, PW10 SI Narender Singh . The blood from the suitcase in which the dead body of Karanvir was found was taken in a plastic dabbi with the help of cotton, the bloodstained floor was broken and taken into a plastic dabbi, the blood from the wooden box in which the dead body of deceased Sujeet Kaur was found was also seized, the bloodstained clothes lying outside the bathroom were also seized by the investigating officer vide memo ExPW 10/A. PRESUMPTION OF ROBBERY AND MURDER The recent and unexplained possession of stolen properties will be taken to be presumptive evidence of the charge of murder as well. {See Sanjay alias Kaka Vs. State (NCT of Delhi) (2001) CrLJ SC No. 252/09 Page62/77 1231 (SC); Baijur Vs. State of Madhya Pradesh AIR 1978 SC 522, (1978) CrLJ 646 (SC); Eara Bhadarappa Vs. State of Karnataka AIR 1983 SC 446, (1983) CrLJ 846 (SC)}. The presumption permitted to be drawn under illust 114 (a) of the Evidence Act has to be read alongwith 'important time factor'. If the ornaments in possession of the deceased are found in possession of a person soon after the murder, a presumption of killing may be permitted. The close proximity of the recovery with the murder as 'important time factor' should not be lost sight of. {See Tulsiram Vs. State AIR 1954 SC 1, (1954) CrLJ 225; Gulab Chand Vs. State of Madhya Pradesh AIR 1995 SC 1598, (1995) 3 SCC 574, AIR 1995 SCW 2504} The question, whether a presumption under illustration (a) to s 114 of the Evidence Act, should be drawn, is a matter which depends on the evidence and the circumstances of each case, the nature of the recovered articles, the manner of their acquisition, the nature of their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervening period and the ability of the accused to explain the recovery {See Mohan Lal Vs. Ajit Singh AIR 1978 SC 1183, p 1195, 1978 CrLJ 1107; Baiju Vs. State of Madhya Pradesh AIR 1978 SC 522, 1978 CrLJ 646; Earabhadrappa Vs. State of Karnataka (1983) 2 SCC 330, 1983 CrLJ 846 (SC); State of Orissa SC No. 252/09 Page63/77 Vs. Dayamidhi Bisoi 2003 CrLJ 123 (Ori) (DB)} Recent and unexplained possession of stolen articles can well be presumptive evidence of the charge even of murder committed at the robbery. {See Wasim Khan Vs. State of Uttar Pradesh AIR 1956 SC 400, ( 1956) 1 CrLJ 797; Alisher Vs. State of Uttar Pradesh AIR 1974 SC 1830, 1974 CrLJ 897; Ganga Singh Vs. State of Rajasthan 1977 CrLR 365 (Raj), 1977 Raj LW 178; Jangsingh Vs. State of Rajasthan 1984 CrLJ 1135 (Raj)} The prosecution, as already stated, having proved the recovery of cash and ornaments at the instance of accused from the garage at ground floor, this recovery of looted property from accused soon after the murder of two victims leads to irresistible conclusion that accused besides committing robbery of those articles has also committed the murder of said two persons.
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
Once the fact of last seen together is proved, a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. (See Yogesh Karki v. State of Sikkim 2006 Cr LJ SC No. 252/09 Page64/77 509 (Sikkim) (DB).)Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. (See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC).) The accused absconding after incident is an additional circumstance which reinforces prosecution case, no explanation given by the accused as to where they were, indicates their guilty mind. (See Vaman Jaidev Raval v State of Goa, 2007 Cr LJ (NOC) 431 (Bom).) It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. (See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D'Souza & ors v State of Karnataka 2002 (10) AD 37 (SC)) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing 'a missing link' for completing the chain. (See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.) Where the accused SC No. 252/09 Page65/77 on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. (See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).) In the backdrop of the above legal position it is seen that on a number of incriminating circumstances appearing against accused in the prosecution evidence, put to him in his statement under section 313 CrPC, the accused has neither denied nor admitted the same by stating 'I do not know'. This answer is neither an admission nor specific denial of the incriminating circumstances put to him. In response to the important question No. 4 that he is known as Chottu also or question that Mehar Legha resided in a rented flat No. 7382, D 7, Vasant Kunj at first-floor in which flat of PW1 Rani Chhabra is situated, when Mehar Legha and Rani Chhabra went to the flat of Mehar Legha accused opened the door from inside, and many other questions he has stated 'I do not know'. In response to question No. 21 that he was working as domestic servant in the flat in question where murder has taken place though he stated that he has no knowledge whether murder has taken place or not but he has not specifically stated that he was not SC No. 252/09 Page66/77 domestic servant in the said flat though he has taken plea of alibi that at thte relevant time he was in Byana Auto Industry, A 237 at Shastri Nagar at 11:15 AM. Further in response to question No. 28 that he had been staying with complainant and her family for the last six years as a servant as on 2/3/2007 he has again stated that he has no knowledge and has also added that he was not permanent servant. If he was not staying with the family of complainant then he should have specifically denied it instead of stating that he has no knowledge and then adding that he was not permanent servant.
In response to question No. 76 that from the garage he had shown clothes with the bloodstains which he had hidden, his answer was that he did not know. To the next question No. 77 that he was wearing the same clothes in the morning when the PW8 Amanpreet Singh left for job and these clothes had bloodstains on them he again answered that he did not know. In answer to the question No. 79 that from his body searched by police a newspaper cutting which had pictures of people being trained to use knives on their opponents in unarmed combat, he again gave the same answer. In response to the question No. 89 that newspaper cutting ExPW 8/J was seized vide memo ExPW 8/H he again answered that he did not know . In answer to question No. 80 that the police drew sketch of the knife which he (accused) had used and asked PW8 Amanpreet Singh to sign the sketch ExPW 8/A he again stated that he did not know and added he SC No. 252/09 Page67/77 has no knowledge.
When the prosecution has, by credible evidence, proved against accused the fact that he was working as domestic servant with the complainant and her family and was living with them and he was the only person present with the two victims who were murdered in the flat in question, the accused was arrested at or near the spot by the security guard and one neighbour from the locality and was handed over to police who got recovered various incriminating articles, the ignorance shown by the accused in response to the incriminating evidence put to him and false answers given by him regarding recovery of articles and to the fact that he was a domestic servant with the complaint and her family can be taken as an additional/missing link in the chain of incriminating circumstantial evidence proved by the prosecution against the accused.
CONCLUSION REGARDING CHARGES OF ROBBERY AND MURDER From the above discussion under different headings it is clear that the prosecution has been able to prove its case against the accused, based on circumstantial evidence, for the offences of robbery by committing two murders, by using a deadly weapon, i.e. knife got recovered by him from kitchen of the flat in question. Therefore, prosecution has been able to prove its case is accused for the charges SC No. 252/09 Page68/77 for the offences under sections 302, 394/397 IPC. It now remains to be seen whether the prosecution has been able to prove or not its case against accused for the remaining charges.
CHARGE UNDER SECTION 201 IPC The prosecution case is that accused knowing that he had committed an offence punishable with death cleaned the blood from the floor of the flat in question and also cleaned/washed the knife used for commission of murder of grandmother and brother of the complainant Mehar Legha. It is also alleged against him that he broke the mobile phone of Mrs Surjeet Kaur and concealed her dead body in a wooden box and concealed the dead body of Master Karanvir Singh in a green suitcase.
As already stated the prosecution has proved the recovery of the bloodstained wet paucha vide memo ExPW 8/D by which he cleaned the blood from the floor of the flat in question after committing murder of the two victims. The dead body of Mrs Surjeet Kaur was found concealed in a wooden blackbox which was seized by police vide memo ExPW 8/E. The dead body of Master Karanvir Singh was found concealed in a green suitcase lying under the bed in the bedroom in the flat in question and the said suitcase was recovered by police from the said flat vide memo ExPW 8/F. It is to be noted that the accused was arrested on 2/3/2007 and recovery of dead bodies, SC No. 252/09 Page69/77 weapon of offence, the knife, and other articles was effected on the same day. On the next day, i.e., 3/3/2007 the accused gave disclosure statement to the police and has stated that he had broken the mobile phone of Mrs Surjeet Kaur before committing her murder so that she may not call anybody by using mobile phone. He has got recovered the hammer by which he broke the mobile phone in three pieces and pieces of mobile phone vide memo ExPW 8/P. It is now well-settled that the section 201 IPC is not restricted to the case of a person who screens the actual offender, it can be applied even to a person guilty of the main offence, and the offence under Section 201 IPC. {See Kalawati Vs. State of Himachal Pradesh AIR 1953 SC 131} Therefore, the prosecution has been able to prove its case again the accused for the charge under section 201 IPC beyond reasonable doubt.
CHARGES UNDER SECTIONS 307 AND 506 IPC The prosecution case against the accused is also that on 2/3/2007 at about 12.30 p.m. at the above stated flat he attempted to commit murder of Kumari Mehar Legha aged about 14 years and also criminally intimidated her to kill her. The star witness of the prosecution is the brave girl Mehar Legha who according to the newspaper clippings and magazines filed with the written arguments SC No. 252/09 Page70/77 was granted National Award for Bravery 2007 from the Prime Minister of our country. It is due to her commendable brave effort only that accused was not successful in his ultimate goal of escaping from the spot by taking the looted property with him, post murder of two victims. She happened to finish the examination before time and reached home before time. She has, as PW5, stated that when she reached her flat which is on the first floor, accused opened the door from inside. She asked him where were her grandmother and her brother? She stated that whenever, she used to come from the school, her grandmother was the first one to greet her. Therefore, when she did not find her, she made the enquiry from the accused. Accused told her that both of them had gone to gurudwara. Accused told her whether she wanted to eat. She told him, let her grandmother and brother come and she will eat with them. Then accused started attacking her and pushed her towards her room. When she asked as to why he was behaving in this manner, he told her that he had killed her grandmother and brother. He told her that he will kill her also and would take away whatever jewellery and money he had collected. One electric wire was lying there. Accused picked up the said wire and tried to strangulate her with the said wire after putting it around her neck. She resisted and fought and she received scratch injuries on her face which were caused by the accused during this fight and also received ligature injury on her neck. She bit on the hand of accused, gave a leg below and ran out of SC No. 252/09 Page71/77 the flat shouting. She stated that on the day of incident, police asked her to get herself medically examined but she was not in a proper state of mind, therefore, she did not accede to the request of police. Her mother applied Dettol etc on her face on her injuries.
In the cross-examination she stated that she did not get herself medically examined because even her parents were not in such a state of mind that they could accompany her to the hospital and she did not want to go alone to the hospital.
PW1 Rani Chhabra so far is relevant to these charges, has stated that on 2/3/2007 she was present at her home. She heard the of cries. She raced towards her staircase because she lives at the second floor of the building. When she was coming down the staircase Mehar Legha was climbing the staircase to come to her. She told her that"
Chottu mujhe maar raha hai" (Chottu is trying to kill her). She also stated that Mehar Legha was full of blood. There were abrasion or scratch marks on her face and there was ligature mark on her neck.
PW 11 Mrs Guddi has also stated that on 2/ 3/2007 at about 12.45 noon Mehar Legha came to her weeping at the place where she was ironing the clothes and told her that" Chottu mujhe maar raha hai, mujhe bachao". In the cross-examination she stated that Mehar Legha's clothes were not torn when she had come to her but this witness volunteered that she had scratches on her face and she appeared to be terrified.SC No. 252/09 Page72/77
The electric wire with the help of which accused tried to strangulate Mehar Legha is seized vide seizure memo ExPW 8/C by Investigating Officer Inspector Suresh Dagar in presence of PW8 Amanpreet Singh, PW14 Partap Singh, PW10 Narender Singh. There are more than one MLC of accused on the record of this case. The MLC No. 82074 dated 2/3/2007 shows there was bite mark on the right forearm of the accused. But this MLC is not proved by the prosecution by examining the doctor concerned to corroborate the statement of the PW5 Mehar Legha that she gave tooth bite to the accused and leg blow and ran away crying from the flat to get help from the neighbours.
In view of the above evidence on record it is clear that the accused who had already killed the two victims had also tried to kill Mehar Legha by strangulating her and also criminally intimidated her to kill. The mere fact that on account of two murders in the family if PW5 Mehar Legha was not in proper mental condition so also her parents and therefore, she did not get herself medically examined despite police request for the same, does not show that she did not sustain any injury at the hands of accused. The injuries on her face are proved by two other witnesses Rani Chhabra and Guddi, as stated before. The ligature mark on the neck of Mehar Legha are proved by PW5 Mehar Legha and PW1 Rani Chhabra. The electric wire by which said ligature marks were caused is also proved to be recovered SC No. 252/09 Page73/77 during investigation vide seizure memo Ex.PW8/C. Statement of Kumari Mehar Legha shows that she was not seriously injured and was given first aid by applying Dettol etc by her mother on her face. Therefore, there is no reason to disbelieve the statement of PW5 Mehar Legha in the context of charges under Section 307 IPC and Section 506 IPC notwithstanding the fact that she did not get herself medically examined. Hence, I am of considered view that the prosecution has been able to prove the charges under section 307 and section 506 (Part II) against the accused beyond reasonable doubt.
DEFENCE OF THE ACCUSED In his defence the accused has taken the plea of alibi. He produced three witnesses in his defence and has also taken the plea of alibi in a statement under section 313 CrPC. DW2 Rajesh Kumar is produced by accused to show that he was with him on 2/3/2007 from 11.15 a.m. to 11.55 AM in the factory where DW2 Rajesh Kumar was working. Thereafter, he stated to have left with Anil DW3 who has stated that he along with the accused left for quarter at 11.55 AM and he alongwith accused reached at quarter at around 12 noon. DW3 Anilkumar stated that he remained there with the accused till 1.30 p.m. and then police reached there and apprehended the accused. DW1 Brijesh Kumar has stated that on 2/3/2007 accused was with him from 12 to 1.30 p.m. Police came at about 1.30 p.m. and took him away.SC No. 252/09 Page74/77
Although the burden to prove the defence is comparatively lighter on the accused as against the prosecution which is supposed to prove its case against the accused beyond reasonable doubt, in a criminal trial, the above plea of defence or the plea of alibi taken by accused is not proved by the accused even by discharging lighter burden of proving the defence by preponderance of probabilities due to several reasons. One, not only the police officials but also the public witnesses examined by the prosecution have proved that accused was arrested near the spot when he tried to escape. Two, to none of the public witnesses or the police witnesses, who testified about the presence of the accused at or near the spot being under arrest with the security guard and PW2 Mukesh Sehrawat, it is suggested that accused was present on 2/3/2007 with the defence witnesses. Three, in his statement under section 313 CrPC accused though stated that he was arrested from a place at Shastri Nagar yet he did not state that he was present with defence witnesses on 2/3/2007. He even did not name any of the three defence witnesses. Four, on behalf of accused suggestion is given to PW2 Mukesh Sehrawat in his cross-examination that accused was a passerby meaning thereby that he was arrested near the spot being a passerby and was not as a domestic servant. Similar suggestion is given to PW5 Mehar Legha that accused was not their servant and that he was just a passerby. Similarly, suggestion was put to PW8 Amanpreet Singh in his cross-examination that accused was a SC No. 252/09 Page75/77 passerby. A suggestion was given to PW 11 Guddi that accused was just passing by from the area and that he was falsely implicated in this case. A suggestion was also given to PW1 Rani Chhabra that accused was only a passerby and was not a servant in the flat of Mehar Legha. These witnesses have denied the said suggestions put to them on behalf of the accused in the cross-examination. However, the question is when it is suggested to the prosecution witnesses in whose presence the accused was arrested that accused was just a passerby and not a domestic servant with the complainant's family to indicate that he was arrested as he was passing through the spot, these suggestions put to the said public witnesses examined by the prosecution falsify the defence of the accused that he was not present at or near the spot on the fateful day or he was arrested from another place known as Shastri Nagar.
In view of the above the defence of the accused is not worth believing to create any reasonable doubt or dent in the prosecution case.
RESULT OF THE CASE In view of the above discussion the prosecution has been able to prove its case against the accused for the charges under sections 302, 201, 394/397, 506 (II) and 307 IPC beyond reasonable doubt and there is nothing in the defence or statements under section SC No. 252/09 Page76/77 313 CrPC of the accused which discredits or rebuts the prosecution case on the said charges. The accused is convicted under sections 302, 201, 394/397, 506 (II) and 307 IPC . Let he be heard on the point of sentence.The judgment be sent to the server (www.delhidistrictcourts.nic.in).
Announced in the open court on 01/07/2010 ( S K Sarvaria ) Additional Sessions Judge-01/South Patiala House Courts/New Delhi SC No. 252/09 Page77/77 SC No. 252/09 Page78/77