Delhi District Court
State vs Sunny on 10 May, 2018
IN THE COURT OF SHRI KULDEEP NARAYAN
ADDITIONAL SESSIONS JUDGE (PILOT COURT)
WEST: TIS HAZARI COURTS: DELHI
SC No. 669/2017
FIR No.182/2017
U/s. 302 IPC
P.S Mundka
State
versus
Sunny
S/o Late Jang Bahadur
R/o Village Kanimoh
P.S. Shambhu,
District Banka, Bihar.
Date of Institution : 14-11-2017
Date of reserving Judgment : 23-04-2018
Date of pronouncement : 10-05-2018
Appearances:
For the State : Ms. Reeta Sharma,
Additional Public
Prosecutor
For the accused :Sh. Rajeev Mittal, Advocate
The Amicus Curiae
Sessions Case No. 669/17 Page 1/44
JUDGMENT
Accused namely Sunny son of late Jang Bahadur , aged about 30 years was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) i.e., Chargesheet submitted on 06.10.2017 upon conclusion of investigation into First Information Report (FIR) No. 182/2017 of Police Station Mundka for offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC).
Prosecution Version:
2. As per the charge-sheet filed by the prosecution, the facts of the case, in brief, are that on 09.07.2017, on receipt of DD No. 43 A, ASI Surender Singh alongwith Ct. Sumit reached the spot i.e. Marwadi Tyrewali gali, Mundka, Delhi where they came to know that PCR van had taken a man to Sanjay Gandhi Hospital in unconscious condition. ASI Surender Singh reached Sanjay Gandhi Hospital Sessions Case No. 669/17 Page 2/44 where it was reported that injured Manish son of Sikander resident of village Kanimoh Ratakhaisar District Banka, Bihar aged 30 years, who was brought to causality in unconscious condition, was declared dead by the doctor. PCR caller Sushil Kumar son of late Jang Bahadur met on the spot who told that he had been residing at 2/69 Metro Mandir, Laxmi Vihar Prem Nagar-3, Kirari Suleman Nagar, Nithari, Delhi as a tenant and doing Mobil Oil Packing work in a godown of one Naveen Bansal, situated in khasra no. 57/19, Marwadi Tyre wali gali, Delhi. Sushil Kumar further stated that his co-brother (sadu) namely, Manish son of Sikandar Singh used to look after the above-said godown during night time. His brother namely, Sunny was also working and staying in the same godown. Sunny was in a habit of consuming liquor for which he used to steal the articles kept in the godown and sell the same for money. Manish told about this fact to the godown owner and Sushil Kumar upon which godown owner removed Sunny from the godown. Due to this reason, Sunny was nursing Sessions Case No. 669/17 Page 3/44 a grudge against Manish. Sushil Kumar further stated that on 09.07.2017, at about 9.38 p.m when Manish made a telephone call to him, he heard loud voice of Sunny, who was asking Manish to open the gate. At that time, the phone got disconnected. Sushil Kumar again tried to call Manish repeatedly but the call could not connect. Feeling about some untoward incident, Sushil Kumar reached at the godown where he found Manish lying in unconscious condition at the gate of godown. There were cut marks on left cheek and injury marks on the neck of Manish. Manish was taken to Sanjay Gandhi Hospital in PCR van where he was declared dead. Inspector Satya Prakash recorded the above-said statement of Sushil Kumar, brother of Sunny. On the basis of statement of Sushil Kumar, case FIR No. 182/2017 under section 302 IPC was got registered. The investigation was assigned to Inspector Satya Prakash, Investigating Officer (I.O).
3. During investigation, on the pointing out of Sushil Kumar, accused Sunny was arrested in the present case from Gali no.11, Mundka Sessions Case No. 669/17 Page 4/44 Industrial Area Delhi. On interrogation, accused Sunny admitted his guilt in committing murder of Manish son of Sikander Singh on 09.07.2017 by manually strangulating his neck.
Accused Sunny also produced his gamchha which he had used to fell Manish down. On the basis of disclouser statement of accused Sunny, he was arrested in the present case by the IO.
4. During further investigation, IO prepared the scaled site plan, sent the Exhibits lifted from the spot to FSL, obtained the call detail record of mobile numbers 78368 05336 & 81789 58975 and also obtained postmortem examination report of Manish (deceased).
5. After completion of the investigation, the I.O came to the conclusion that sufficient evidence had come on record against the accused Sunny for commission of offence punishable under Section 302 IPC. The police report under Section 173 Cr.P.C (charge-sheet) was prepared against accused Sunny and filed in the court.
6. On the basis of charge-sheet and the documents submitted with it, the learned Sessions Case No. 669/17 Page 5/44 Metropolitan Magistrate, Delhi took cognizance of offence under Section 302 IPC and vide order dated 10.11.2017 after complying with the provisions contained in Section 207 Cr.P.C committed the case to the Court of Session for 14.11.2017.
Charge
7. On 21.11.2017, after hearing the learned Additional Public Prosecutor for the State and the learned Amicus Curiae for the accused, charge was framed against the accused Sunny for commission of offence punishable under Section 302 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial. Prosecution Witnesses
8. To bring home the afore-mentioned charge to the accused, the prosecution got examined Sushil Kumar (PW-1), Naveen Bansal (PW-2), SI Darshan Kumar (PW-3), Ct. Shiv Kumar (PW-4), HC Kulveer Singh (PW-
5), Dr. Dharmender Kumar (PW-6), Dr. Ramandhar Prasad (PW-7), Ct. Naveen (PW-8), Ct. Sumit (PW-9), ASI Surender Singh (PW-
Sessions Case No. 669/17 Page 6/4410), Kamal Kumar (PW-11), Pawan Singh (PW-
12), SI Harish Chander Pathak (PW-13), Inspector Nar Singh (PW-14), ASI Om Prakash (PW-15), HC Praveen (PW-16) and Inspector Satya Prakash (PW-17).
Documentary Evidence
9. The prosecution also relied on following documents tendered into evidence i.e statement of Sushil Kumar (Ex.PW-1/A), arrest memo of accused Sunny (Ex.PW-1/B), personal search memo of accused Sunny (Ex.PW-1/C), seizure memo of gamchha (Ex.PW-1/D), seizure memo of mobile phone make Nokia with SIM card of Idea company (Ex.PW-1/E), seizure memo of one slipper (Ex.PW-1/F), disclosure statement of accused Sunny (Ex.PW-1/G), copy of OPD card of IHBAS Shahadara of accused Sunny (Ex.PW-1/X), pointing out memo (Ex.PW-5/A), MLC no. 12082 dated 09.07.2017 of deceased Manish (Ex.PW-6/A), MLC no. 11504 of accused Sunny (Ex.PW-7/A), Customer Application Form (CAF) of subscriber Sushil Kumar in respect of mobile no. 81789 58975 (Ex.PW-11/A), Call Detail Report (CDR) of Sessions Case No. 669/17 Page 7/44 above-said mobile number w.e.f 08.07.2017 to 23.10.2017 (Ex.PW-11/B), certificate u/s 65-B of Indian Evidence Act (Ex.PW-11/C), location chart of the abovesaid mobile number (Ex.PW11/D), certificate u/s 65-B of Indian Evidence Act (Ex.PW-11/E), copy of CAF alongwith the copy of ID proof of the subscriber namely Gagan Kumar of mobile no. 78368 05336 (Ex.PW-12/A), CDR of the abovesaid mobile number w.e.f 08.07.2017 to 10.07.2017 (Ex.PW-12/B), certificate u/s 65-B of Indian Evidence Act (Ex.PW-12/C), Delhi police Control Room form (Ex.PW-13/A), certificate u/s 65-B Indian Evidence Act (Ex.PW-13/B), statement of Tarun Kumar for identification of dead body of deceased (Ex.PW-14/A), statement of Sushil Kumar for identification of dead body of deceased (Ex.PW-14/B), statement of Neeraj Singh for identification of dead body of deceased (Ex.PW-14/C), request letter for conducting the postmortem examination (Ex.PW-14/D), death report (Ex.PW-14/D1), scaled site plan (Ex.PW- 15/A), entry at serial no. 1192/17 on 10.07.2017 Sessions Case No. 669/17 Page 8/44 in register no. 19 (Ex.PW-16/A), entry at serial no. 1193/17 on 10.07.2017 in register no. 19 (Ex.PW-16/B), Rukka (Ex.PW-17/A), site plan without scale (Ex.PW-17/B), seal handing over memo (Ex.PW-17/C), seizure memo of exhibits (Ex.PW-17/D), notice u/s 91 Cr.P.C to provide copy of CAF/CDR ownership and location chart (Ex.PW-17/E), request letter to provide the duty roaster with PIS number (Ex.PW- 17/F), duty roaster (Ex.PW-17/G), FIR & certificate u/s 65-B of Evidence Act (Ex.PX-1), DD entry no. 43 A dt. 09/07/2017 (Ex.PX-2), DD entry no. 47 A dt. 09/07/2017 (Ex.PX-3), crime team report (Ex.PX-4), postmortem examination report no. 611/17dt. 10/07/2017 (Ex.PX-5), subsequent opinion dated 03.10.2017 (Ex.PX-6) and eleven photographs of scene of crime (Ex.PX-7).
10. During the course of trial, learned Amicus Curiae for the accused made statement under Section 294 Cr.P.C thereby admitting the genuineness of documents i.e FIR with Certificate under Section 65B of the Evidence Act (Ex.PX-1) collectively, DD Entry No.43A Sessions Case No. 669/17 Page 9/44 dated 09.07.2017,(Ex.PX-2), DD Entry No.47A, dated 09.07.2018 (Ex.PX-3), Scene of crime report (Ex.PX-4), Postmortem examination report (PX-5), subsequent opinion (PX-6) and 11 photographs (Ex.PX-7) collectively. Accordingly, prosecution witnesses namely (1) ASI Daulat Rana, (2) ASI Devender, (3) Constable Subhash and, (4) Dr. Munish Wadhawan were dropped from the list of witnesses.
Statement of Accused
11. After conclusion of prosecution evidence, on 06.04.2018, statement of accused Sunny under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case as he had quarreled with his mother and brother Sushil.
12. The accused did not desire to lead evidence in his defence.
Final Arguments
13. I heard the arguments advanced by Ms. Reeta Sharma, learned Additional Public Sessions Case No. 669/17 Page 10/44 Prosecutor for the State and Shri Rajeev Mittal, learned Amicus Curiae for accused Sunny and also perused the entire material available on record.
14. Learned Additional Public Prosecutor argued that the present case is based on circumstantial evidence. The accused was arrested at the instance of the complainant who had heard and identified the voice of the accused while having telephonic conversation with the deceased. After the arrest, the accused disclosed about commission of murder of the deceased by strangulating him. The postmortem examination report also corroborates the fact of manual strangulation of the deceased and scratch marks were also found on the body of the deceased and therefore, the disclosure statement of the accused to this effect is admissible under Section 27 of the Evidence Act for discovery of this fact. The accused had used his gamchha for restraining the deceased which was also recovered from the possession of the accused. Ld. Prosecutor further argued that the mental condition of the accused was Sessions Case No. 669/17 Page 11/44 stable at the time of commission of offence and the accused was also having motive to eliminate the deceased who was employed by Naveen Bansal after removing the accused from the job. There was no theft or robbery committed in the godown which rules out the involvement of any outsider in committing murder of the deceased. Ld. Prosecutor, thus, argued that the prosecution succeeded in establishing the guilt of the accused beyond all reasonable doubts and the accused deserves conviction.
15. Per contra, learned Amicus Curiae for the accused argued that the accused was falsely implicated to solve a blind murder case as the mental condition of the accused was not sound. The accused was also treated at IHBAS Shahdara. Further, the prosecution could not establish if the accused was present on the spot at the relevant date and time. The testimony of Sushil Kumar (PW-1) is not helpful to the prosecution as he turned hostile on the point of identifying the voice of the accused during telephonic conversation. The prosecution also could not establish if there was a telephonic Sessions Case No. 669/17 Page 12/44 conversation between the deceased and Sushil Kumar (PW-1) prior to the death of the deceased. There is no evidence available on record to show that the mobile number 78368 05336 was subscribed in the name of the deceased or was being used by him. No location chart pertaining to the mobile phone of the deceased could be filed on record. Even the cycle as mentioned in the disclosure statement of the accused was not seized by the I.O. Learned Amicus Curiae further argued that some bite marks were found on the face of the deceased, but the same were not sent to FSL with the sample bite marks of the accused for comparison. Lastly, it was argued by the learned Amicus Curiae that the prosecution failed to prove its case against the accused beyond all reasonable doubts and the accused deserves acquittal.
16. I have given my thoughtful consideration to the rival submissions made on both sides.
17. In the present case, accused has been charged for commission of offence under Sessions Case No. 669/17 Page 13/44 Section 302 IPC. The aforesaid provision under Section 302 IPC is reproduced as under:
18. Section 302 IPC is reproduced as under:
302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
19. The relevant part of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or -
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
Sessions Case No. 669/17 Page 14/4420. Further, the relevant part of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
299.Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
21. In the light of facts and circumstances of the present case, following points for determination are arising in the present case:
(a) Whether Manish Kumar son of Sikandar Singh (deceased) resident of village Kani moh District Banka, Bihar died on 09.07.2017 at about 9:40 p.m. at the godown situated in Khasra no.57/19, Marwadi Tyre Wali Gali, Mundka, Delhi.?
(b) Whether the deceased suffered injuries on his person which were sufficient to cause death in ordinary course of nature ?
(c) Whether the death of the deceased was homicide ?
(d) Whether the accused is responsible for causing injuries on the person of the deceased which resulted into his death ?
Testimonies of prosecution witnesses:
Sessions Case No. 669/17 Page 15/4422. To prove the afore-mentioned charge against the accused, the prosecution got examined 17 witnesses in all. For the sake of convenience, a brief description of the testimonies of all the prosecution witnesses in tabular form is as under :-
Srl. No. Name of PW Nature of testimony Documentary of PW Evidence PW-1 Sushil Kumar Deposed about the incident Ex. PW-1/A (Complainant & and arrest of the accused. Ex.PW-1/B, Brother of accused) Also identified the case Ex.PW-1/C, property. The witness was Ex.PW-1/D, declared hostile and was Ex.PW-1/E, cross-examined by the State. Ex.PW-1/F, Ex.PW-1/G, Ex.PW-1/H & Ex.PW-1/X Ex.P1,Ex.P2 Ex.P3 PW-2 Naveen Bansal Deposed about accused -
(Owner of working in his godown, Factory/Godown) removing the accused from job due to his mental condition. Also deposed about accused threatening the deceased.
PW-3 SI Darshan Kumar Deposed about receiving ---
wireless call, visiting the spot where dead body was found lying. Further deposed that caller Sushil met him at the spot who stated that Manish Sessions Case No. 669/17 Page 16/44 (deceased) was beaten by accused Sunny. Took the deceased to SGM hospital where he was declared brought dead.
PW-4 Ct. Shiv Kumar Deposed about visiting the
spot with SI Darshan Kumar
(PW-3) on receiving the --
wireless message where
caller met them at the spot
and stated that Manish
(deceased) was beaten by
accused Sunny. Took the
deceased to SGM hospital
where he was declared
brought dead.
PW-5 HC Kulveer Singh Deposed about the Ex.PW-1/B,
investigation, witnessed the Ex.PW-/C,
seizure memo of case Ex.PW-1/D,
property, identified the case Ex.PW-1/E,
property and the accused in Ex.PW-1/E,
the Court. Ex.PW-5/A,
Ex.P-1, Ex.P-2
and Ex.P-3.
PW-6 Dr. Dharmender Deposed about preparation of Ex.PW-6/A.
Kumar MLC of the deceased Manish
by Dr. Gaurav, Junior
Resident under his
supervision. Also identified
signature of Dr. Gaurav.
PW-7 Dr. Ramandhar Prepared the MLC of accused Ex.PW-7/A
Prasad Sunny and deposed about
injury marks on his body.
PW-8 Ct. Naveen Delivered the copies of FIR --
to senior officers and the
learned Metropolitan
Magistrate
PW-9 Ct. Sumit Visited the spot alongwith -
Sessions Case No. 669/17 Page 17/44
ASI Surender Singh on
receiving DD No.43A, took
the rukka to police station,
got the FIR registered and
returned to the spot with copy
of the FIR and handed over
the same to Inspector Satya
Prakash.
PW-10 ASI Surender Singh Visited the spot with Ct --
Sumit on receiving DD
No.43A, left Ct Sumit on the
spot and went to SGM
hospital, collected the MLC
of deceased Manish. Briefed
about the incident to
Inspector Satya Prakash and
handed over him the MLC
PW-11 Kamal Kumar, Produced CAF of mobile Ex.PW-11/A,
(Alternate Nodal number 81789 58975, CDR Ex.PW-11/B,
Officer , Reliance Jio of the said mobile, certificate Ex.PW-11/C ,
Info. Ltd.) under Section 65 of the Ex.PW-11/D
Indian Evidence Act and and Ex.PW-
location chart. 11/E. PW-12 Pawan Singh, (Nodal Produced CAF of mobile Ex.PW-12/A, Officer, Idea Cellular number 78368 05336 CDR of Ex.PW-12/B, & Ltd.) the said mobile and Ex.PW-12/C certificate under Section 65 of the Indian Evidence Act PW-13 SI Harish Chander Produced PCR form Ex.PW-13/B. Pathak supported with certificate under Section 65 B of Evidence Act.
PW-14 Inspector Nar Singh Deposed about recording PW-14/A,
dead body identification PW-14/B,
statements and preparing PW-14/C,
inquest papers. PW-14/D &
PW-14/D-1
PW-15 ASI Om Prakash Deposed about inspecting the PW-15/A
Sessions Case No. 669/17 Page 18/44
(Mapping Section) spot, prepared the scaled site
plan.
PW-16 HC Praveen Deposed about deposit of PW-16/A &
( MHC (M) ) exhibits and entry in register PW-16/B
no.19.
PW-17 Inspector Satya Conducted the investigation, PW-17/A,
Prakash recorded statement of the PW-17/B,
( Investigation complainant and other PW-17/C,
Officer) witnesses, prepared rukka, PW-17/D,
sent rukka for registration of PW-17/E,
FIR, prepared site plan, lifted PW-17/F,
exhibits from the spot and PW-17/G,
seized the same. Also Ex.P1, Ex.P2
arrested the accused, and Ex.P3
conducted his personal search
and recorded disclosure
statement. Also sent the dead
body, for postmortem
examination,handed over the
dead body to the relative of
the deceased. Gave notice
under Section 91 Cr.P.C to
the service providers and
collected CAF and CDR of
two mobile phones. Obtained
PCR form during the
investigation. Identified the accused and case property in the Court.Sessions Case No. 669/17 Page 19/44
Analysis:
Points for determination (a), (b) and (c):
23. As per the testimony of Sushil Kumar (PW-1), the deceased was his real co-brother (sadu). PW-1 found the deceased lying at the gate of the godown/factory with half of his body inside the godown/factory and half body outside. PW-1 had made a call to the police at 100 number, consequent upon of which the deceased was shifted to SGM hospital, Mangol Puri, through PCR van where he was declared brought dead.
24. Naveen Bansal (PW-2) deposed about his godown situated in Marwadi Tyre Wali Gali, Mundka, Delhi, where the deceased used to stay and sleep in night hours for guarding the same.
25. Dr. Dharmender Kumar (PW-6) identified the signatures of Dr. Gaurav on the MLC Ex.PW-6/A whereby the deceased was examined.
26. As per postmortem examination report Ex.PX-5 following external injuries were observed by Dr. Munish Wadhawan:
(1) Reddish abrasion, 1 x 0.5 cm on right ear.Sessions Case No. 669/17 Page 20/44
(2) Reddish abrasion, 1 x 0.7 cm on malar region of right face.
(3) Reddish abrasion, 3 x .07 cm on right upper arm.
(4) Multiple reddish crescentic nail scratch marks varying in length from 0.3 cm to 0.5 cm on front of left neck.
(5) Reddish bruises, 3 x 2c.m on right forehead.
(6) Multiple crescentic bite marks in periphery of oval area of diametre 5 c.m. on left face.
27. Vide postmortem examination report Ex.PX-5, the cause of death of the deceased was opined to be due to asphyxia as a result of ante-mortem manual strangulation.
28. It is, therefore, clear from the testimonies of PW-1, PW-2, PW-6 and postmortem examination report Ex.PX-5 that the dead body of Manish Kumar son of Sikandar Singh (deceased) was found at the gate of godown situated in Khasra No. 57/19, Marwadi Tyre Wali Gali, Mundka, Delhi, in the night of 09.07.2017. There were injury marks on the dead body of the deceased. The death of the deceased was caused by manual strangulation.
Sessions Case No. 669/17 Page 21/44The death of the deceased, therefore, was apparently homicide.
29. The points for determination (a), (b) and
(c) are decided accordingly.
Point for determination no. (d)
30. In order to establish culpability on the part of the accused, the prosecution relied upon documentary evidence and the oral testimonies of 17 prosecution witnesses. The prosecution sought to prove the following circumstances in order to hold the accused guilty:
(i) The deceased was present in the godown of Naveen Bansal (PW-2) in the evening of 09-07-2017.
(ii) The deceased made a telephone call to Sushil Kumar (PW-1) from his mobile around 9:38 p.m on that day.
(iii) During telephonic conversation, Sushil Kumar (PW-1) heard loud banging on the gate of said godown.
(iv)Sushil Kumar(PW-1) during telephonic conversation also heard the loud voice of the accused calling for opening the gate of the said godown.
(v) The accused was present on the scene of crime on the relevant date and time.Sessions Case No. 669/17 Page 22/44
(vi) The accused was nursing grudge against the deceased who was allowed to stay in the godown whereas the accused was removed from the said job.
(vii) There was a quarrel between the accused and the deceased during which the accused strangulated the deceased with his hands.
(viii) There were scratch marks on the body of the accused as well as the deceased suggesting such quarrel.
(ix) There was no theft or robbery committed in the godown which rules out the involvement of any outsider in committing murder of the deceased.
31. The above-mentioned circumstances are discussed under the following heads:
Presence of the accused on the scene of crime-
32. As per the testimony of Sushil Kumar (PW-1) on 10.07.2017 on Sunday in the evening hours while he was loading the articles in the said godown, the deceased had also come there and had started preparing food. PW-1 thereafter left for his house. At about 9:38 p.m., PW-1 Sessions Case No. 669/17 Page 23/44 received a call from the mobile phone of the deceased during which he heard a loud banging on the gate of the godown. PW-1 asked the deceased not to open the door apprehending that somebody may be there to loot the articles kept in the godown. PW-1 also apprehended about the presence of the accused as his mental condition was not sound. PW-1 further deposed that the deceased had not listened to him and he heard a loud noise of opening the gate of the godown and thereafter the phone call of the deceased got disconnected. PW-1 tried to call back 2-3 times, but the call was not taken. PW- 1, fearing any unfortunate incident reached at the godown to find the deceased lying at the gate of the godown with half of his body inside and half of his body outside the gate.
33. PW-1 was cross-examined by Ld. Prosecutor with permission of the Court wherein he stated that being less-literate, he could not tell about the date of the incident to be 09.07.2017 or 10.07.2017, however, the day was Sunday. PW-1 further stated that accused used to steal money from his pocket and also Sessions Case No. 669/17 Page 24/44 used to quarrel with him due to which PW-1 got him removed from the job. On further cross- examination, PW-1 denied that during telephonic conversation with the deceased apart from hearing loud banging sound at the gate of the godown, he had also heard the voice 'gate khol, gate khol' which he identified to be of the accused. PW-1 was confronted with portion Y to Y in his statement Ex.PW-1/A recorded under Section 161 Cr.P.C where the abovesaid fact was found recorded.
34. PW-1 also deposed about accompanying the police to Gali No.11, Mundka where the accused was sleeping and was arrested at his instance vide arrest memo Ex.PW-1/B. The police had also taken into possession one gamchha from the possession of the accused vide seizure memo Ex.PW-1/D. PW-1 had handed over the mobile phone of the deceased vide seizure memo Ex.PW-1/E. In his presence the police had taken one slipper of the deceased lying on the spot vide seizure memo Ex.PW- 1/F. The said slipper was identified by PW-1 as Ex.P-1 and the said gamchha belonging to the Sessions Case No. 669/17 Page 25/44 accused as Ex.P-2. PW-1 also identified the mobile phone Ex.P-3 belonging to the deceased.
35. PW-1 was also cross-examined by the Ld. Amicus Curiae on behalf of the accused wherein he stated about he and the accused residing at the godown for doing packing work on contract basis and earning collectively around 20,000/- to 30,000/- per month. Both PW-1 and the accused used to be paid Rs.1,500/- per month for looking after the godown after working hours. PW-1 further stated about the feeble mental condition of the accused, his leaving job, accused being found in Lucknow and he bringing the accused back to Delhi for getting treatment from IHBAS Shahdara, where he was prescribed medicines i.e., calcium and sleeping pills for 15 days, but the accused did not visit the hospital again for his further treatment. PW-1 further stated that after the accused came back to Delhi from the village about 15 days prior to the incident, he had started residing with him and his wife. The accused was not re-employed by Naveen Bansal Sessions Case No. 669/17 Page 26/44 (PW-2). PW-1 also stated that during search of the accused, he had gone to the house of his cousin sister alongwith the police where the accused was found sleeping with the labours of the timber godown.
36. Naveen Bansal (PW-2) deposed about the accused, real brother of Sushil Kumar (PW-1), also working in his godown who also used to sleep there in the night hours. Due to disturbed mental conditon of the accused, PW-2 removed him from the job about 3-4 months prior to the death of the deceased. PW-2 had later allowed the deceased to stay at night in his godown though there was no requirement for any night guard for his godown. PW-2 further deposed that about 8-10 days prior to the death of the deceased, the accused had come to him to take him on job and on refusal accused had got angry and had also threatened to kill the deceased.
37. In cross-examination, PW-2 stated that there was no night watchman in the area where his godown was situated nor any CCTV cameras were installed there. PW-2 had no Sessions Case No. 669/17 Page 27/44 complaints against the accused during the tenure of his employment. PW-2 was not having any requirement for any guard to look after the godown and no incident of threat had ever taken place in his godown to date.
38. On perusal of the testimony of both PW-1 and PW-2, it is clear that there is nothing to infer so as to establish the presence of the accused on the scene of crime on the relevant date and time. Though PW-1 claimed about receiving a phone call from the deceased at about 9:38 p.m., he resiled from his previous statement Ex.PW-1/A wherein he had stated to have heard the voice 'gate khol, gate khol' and had identified the voice to be of the accused. From the entire testimony of PW-1 and PW-2, it is clear that both the witnesses expressed their apprehension and opinion about the involvement of the accused in commission of murder of the deceased.
39. To prove the circumstance of telephonic conversation between the deceased and Sushil Kumar (PW-1), the prosecution examined Kamal Kumar (PW-11) and Pawan Singh (PW-
Sessions Case No. 669/17 Page 28/4412), Nodal Officers of Reliance Jio Info Com and Idea Cellular Ltd. Kamal Kumar (PW-11) produced the Customer Application Form (CAF) Ex.PW-11/A pertaining to mobile no.81789 58975 subscribed in the name of Sushil Kumar and Call Detail Record (CDR) Ex.PW-11/B alongwith Location Chart Ex.PW- 11/D. However, Pawan Singh (PW-12) produced the CAF Ex.PW-12/A pertaining to mobile no. 78368 05336 subscribed in the name of one Gagan Kumar son of Sudhakar Singh resident of Kamargama, Durga Pur, Sangram Pur, Munger, Sangram Pur, Bihar with local address of house no.10, Deepak Colony, Mawla Maharaj Pur, Faridbad. PW-12 also produced the CDR Ex.PW-12/B and certificate under Section 65-B of Evidence Act Ex.PW-12/C in support thereof.
40. Though it is claimed by the prosecution that the mobile no. 78368 05336 was being used by the deceased and Sushil Kumar (PW-1) had received telephonic call from the deceased from the said number on the said number at about 9:38 p.m, the fact remains that there is no Sessions Case No. 669/17 Page 29/44 documentary evidence to substantiate the fact that the mobile no.78368 05336 was, in fact, being used by the deceased. The subscriber of the afore-said mobile number namely Gagan Kumar was not interrogated nor was made a witness in the present case. It is pertinent to note that Sushil Kumar (PW-1 ) had produced mobile phone Ex.P-3 belonging to the deceased which was seized by the I.O vide seizure memo Ex.PW-1/E. A perusal of seizure memo Ex.PW- 1/E reveals that the mobile phone of the deceased was containing SIM Card No.89910 43808. As is clear from the testimony of Inspector Satya Prakash (PW-17), I.O. of the case, no CAF and CDR of mobile no.89910 43808 was obtained and filed on record. Instead, PW-17 obtained CAF and CDR of mobile no.78368 05336 which was subscribed in the name of one Gagan Kumar son of Sudhakar Singh vide CAF Ex.PW-12/A. It is not clear from the entire testimony of PW-17 how he came to know about the mobile number 78368 05336 to be in the name of the deceased Sessions Case No. 669/17 Page 30/44 or how the deceased was associated with the said mobile number.
41. In the above-mentioned circumstances, it can be reasonably concluded that there is no evidence available on record to show that the deceased was using mobile number 78368 05336 just prior to his death. Accordingly, the purported telephonic conversation between the deceased and Sushil Kumar (PW-1) has also becomes doubtful.
42. Furthermore, as per the scaled site plan Ex.PW-15/A, there are other godowns also situated in the neighbourhood of godown of Naveen Bansal (PW-2). The fact that in the month of July, at about 9:38 p.m, nobody was present in any of the nearby godowns who might have heard loud banging on the door of the godown of Naveen Bansal (PW-2), does not appeal to common sense, moreso, as per the testimony of PW-1, a large number of public persons were present who had surrounded the body of the deceased when PW-1 reached at the spot immediately. Inspector Satya Prakash (PW-17) also did not investigate about the Sessions Case No. 669/17 Page 31/44 presence of any such neighbourer who might have heard the loud banging on the gate of the godown or voices of purported quarrel between the deceased and the accused. There were no signs to indicate about the presence of the accused on the scene of crime and I.O could find only one slipper Ex.P-1 belonging to the deceased on the spot.
43. In view of above-discussed facts and circumstances, in my considered opinion, the prosecution failed to prove the circumstances that the deceased had made any telephonic call from his mobile phone during which Sushil Kumar (PW-1) had heard the loud banging on the gate of the said godown and also simultaneously had heard the voice of the accused for opening the gate of the godown. It is, thus, clear that the prosecution failed to prove presence of the accused on the scene of crime on the relevant date and time beyond reasonable doubts. At the cost of repetition, suffice it to say that mere apprehension on the part of PW-1 or opinion of PW-2 about the involvement of the accused in commission of Sessions Case No. 669/17 Page 32/44 murder of the deceased is not sufficient to establish the physical presence of the accused on the scene of crime.
Motive
44. As per the prosecution version, there was a motive available to the accused for committing murder of the deceased as the deceased was given the job by Naveen Bansal (PW-2) after removing the accused therefrom, however, it is evident from the testimony of PW-2 that the deceased was not employed as a guard in his godown as no such necessity was ever felt by PW-2. PW-2 had allowed the deceased to stay in his godown in the night hours on the recommendations of Sushil Kumar (PW-1) so that the deceased may get a place to stay at night. PW-2 categorically deposed that he had removed the accused from the job about 3-4 months prior to the death of the deceased, solely due to his disturbed mental condition. PW-2 had no complaints against the accused during the tenure of his employment nor he faced any difficulty in running his business after removal of the accused. PW-2 further deposed Sessions Case No. 669/17 Page 33/44 that the goods of worth Rs.10 to 12 lacs used to remain stored in his godown, but no incident of theft have ever taken place in his godown. Further, when the accused approached PW-2 again seeking job 8-10 days prior to the death of the deceased, PW-2 refused to give the accused employment due to his disturbed mental condition. The deceased had also never made any complaint to PW-2 against any person. He further stated that no quarrel had ever taken place between the accused and Sushil Kumar or any other person during their employment with him. Though PW-2 also deposed that on his refusal to give job to the accused, the accused had got angry and threatened to kill the deceased, he did not take it seriously at that point of time. It shows in clear term that there was no seriouness in the said threat so as to create alarm to a reasonable and prudent person. In cross-examination, PW-2 also stated that the said conversation between him and the accused was also heard by Sushil Kumar, however, Sushil Kumar (PW-1) did not depose any such fact.
Sessions Case No. 669/17 Page 34/4445. As per the testimony of Sushil Kumar (PW-1), the accused used to steal money from his pocket and used to quarrel with him. Further, after the mental condition of accused got disturbed, accused used to consume anything and on one occasion he had consumed leaves of Dhatura plant. PW-1 categorically stated that the accused used to quarrel with him, not with the deceased. In his cross- examination, PW-1 denied the suggestion that the accused used to steal articles from the godown on which the deceased had made a complaint against him to Naveen Bansal (PW-2), consequent upon which the accused was removed from the job. As observed above, Naveen Bansal (PW-2) also deposed in categorical terms that there never was any incident of theft in his godown.
46. A conjoint reading of testimonies of both PW-1 and PW-2 reveal that none of them deposed about any annoyance or animosity on the part of the accused towards the deceased on account of his removal from the job by Naveen Bansal (PW-2) which was due to his disturbed Sessions Case No. 669/17 Page 35/44 mental condition at that point of time. It is also clear that the deceased was not employed on salary basis nor was being paid any renumeration by PW-2 for looking after his godown, instead, the deceased was allowed to stay only in the godown by PW-2 in night hours on the recommendation of Sushil Kumar (PW-
1), his co-brother (sadu).
47. After coming back to Delhi from his village around 15 days prior to the incident, the accused had started residing with PW-1 and his wife at C-2/69, Laxmi Vihar, Bharo Mandir, Prem Nagar-III, Kirari, Suleman Nagar, Delhi. The accused was, thus, having a place to reside as well. It is, therefore, clear that there is no evidence available on record to establish if the accused was having any grudge against the deceased who also happens to be co-brother (sadu) his brother Sushil Kumar (PW-1). The accused was removed from his job by PW-2 about 3-4 months prior to the incident, on account of his disturbed mental condition and not on any complaint by the deceased. After removal from his job, the accused had left Delhi Sessions Case No. 669/17 Page 36/44 and had gone to Lucknow, U.P from where he was brought back to Delhi by PW-1 in the month of April,2017, however, as his mental condition was not sound, he was sent back to his native village by PW-1 in the month of April,2017 itself. The accused returned to Delhi about 10-15 days prior to the date of incident and had started residing with PW-1.
48. In the afore-disccused facts and circumstances, there was no occasion for the accused to nurse any grudge against the deceased, be it on account of removal of his job or non-availability of a place to stay. In my considered opinion, the prosecution, therefore, failed to establish any motive on the part of the accused for commission of murder of the deceased in the present case.
Quarrel between the accused and the deceased
49. Another circumstance relied upon by the prosecution pertains to the supposed quarrel Sessions Case No. 669/17 Page 37/44 between the accused and the deceased during which the accused manually strangulated the deceased. In this regard, as discussed earlier, the prosecution could not establish the presence of the accused on the scene of crime beyond reasonable doubt. The prosecution also could not establish any motive on the part of the accused to indulge in any purported quarrel with the deceased. The fact that there were scratch marks and abrasions on the body of the accused as well as the deceased vide MLC Ex.PW-7/A and postmortem examination report Ex.PX-5 is not sufficient in itself to presume any quarrel between the accused and the deceased during which the accused manually strangulated the deceased to cause his death. As per postmortem examination report Ex.PX-5, multiple crescentic bite marks on left face of the deceased were found, however, the I.O did not deem it appropriate to obtain the dental impression of the accused for comparison purposes with such bite marks. Perhaps, the I.O was not aware about the science of forensic odontology or forensic dentistry. There were no Sessions Case No. 669/17 Page 38/44 signs found on the scene of crime to indicate about the presence of the accused on the spot. Even the scratch marks and abrasions found present on the person of the accused vide MLC Ex.PW-/A were not mentioned by doctor Ramandhar Prasad (PW-7) to be fresh in duration though in his cross-examination, PW-7 stated that the injuries found on the person of accused were fresh in duration, however, there is no reasonable explanation furnished by PW-7 for not mentioning as such in MLC Ex.PW-7/A.
50. It is, therefore, clear that the prosecution could not establish that there was a quarrel between the accused and the deceased during which the accused manually strangulated the deceased to cause his death.
51. As far as the circumstance that no theft or robbery was found to have been committed in the godown, is concerned, suffice it to say that this circumstance in itself cannot be taken to presume the culpability on the part of the accused.
Sessions Case No. 669/17 Page 39/44Conclusion
52. As per the settled propositions of the law, it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. In Sharad Birdhichand Sarda v. State of Maharashta (1984) 4 SCC 116, which is considered a locus classicus on circumstantial evidence, it was laid down that the facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. Further, the circumstances should be of a conclusive nature and tendency and 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.
53. In Sujit Biswas V. State of Assam - (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, it was also Sessions Case No. 669/17 Page 40/44 ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstance established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.
54. Further, in Dhan Raj @ Dhand V. State of Haryana - (2014) 6 SCC 745, while dwelling on the imperatives of circumstantial evidence, it was ruled that the same had to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only an inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjectures.
Sessions Case No. 669/17 Page 41/4455. In the present case, prosecution failed to prove each circumstance beyond reasonable doubt as discussed-above. The chain of circumstances sought to be proved by the prosecution is not complete. In view of the above-discussed facts and circumstances, in my considered opinion, the prosecution miserably failed to establish the presence of the accused on the scene of crime on the relevant date and time. The prosecution could not establish if any telephonic call was made by the deceased to Sushil Kumar (PW-1) during which PW-1 had heard and identified the voice of the accused, calling for opening the gate of the godown. The prosecution also could not establish any motive on the part of the accused for committing murder of the deceased. From the entire evidence available on record, inference of guilt of the accused cannot be drawn so as to exclude all possible hypothesis of his false implication and innocence. All the circumstances as discussed above do not lead to the irresistible conclusion that the accused and Sessions Case No. 669/17 Page 42/44 only the accused was the perpetrator of the offence in the present case. Accordingly, in the absence of any credible and un-impeachable evidence against the accused, I deem it fit to acquit the accused Sunny son of late Jang Bahadur of the charge for commission of offence punishable under Section 302 IPC. Accused Sunny son of Jang Bahadur stands acquitted.
56. Point for Determination no. (d) is decided accordingly.
57. Bail Bonds under Section 437A Cr.P.C furnished by the accused with photo and residential proof of the surety.
58. In view of Section 365 Cr.P.C, a copy of the judgment be sent to District Magistrate concerned for his information.
59. The Legal heirs of Manish Kumar (deceased) are referred to District Legal Sessions Case No. 669/17 Page 43/44 Services Authority, (West) for award of suitable compensation.
60. File be consigned to Record Room after due compliance. Digitally signed by KULDEEP KULDEEP NARAYAN NARAYAN Date: 2018.05.11 00:16:28 +0530 (Pronounced in the open (Kuldeep Narayan) Court on 10-05-2018) Additional Sessions Judge (Pilot Court) West :Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 669/17 Page 44/44