1 State vs Raj Kumar, Fir No. 314/04, Ps Vivek Vihar on 21 January, 2010

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Delhi District Court

1 State vs Raj Kumar, Fir No. 314/04, Ps Vivek Vihar on 21 January, 2010

                                                    1                    State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

                IN THE COURT OF SH. DILBAG SINGH: ADDITIONAL 
       SESSIONS JUDGE 01 (E)/ KARKARDOOMA COURTS: DELHI.

Sessions Case No.52/09
Date of institution: 01.08.2009
Date on which reserved for orders: 12.01.2010
Date of delivery for order: 15.01.2010

State v/s  (1) Raj Kumar @ Raju s/o Sh. Mukandi Lal R/o A173, Gali no.5, 
                 Bank Colony Road, Harijan Basti, Nand Nagri, Delhi.

            (2) Abhimanyu Pradhan s/o Sh. Kshetrabasi Pradhan R/o 208
                D Pocket, Dilshad Garden, Delhi. (died on 24.11.04)

FIR NO.314/04
PS Vivek Vihar
U/s 302/34 IPC.

JUDGMENT:

1. Case of the prosecution as disclosed from records of the case is to the effect that on 29.07.04 an information regarding a dead body lying behind Pratap Khand Railway Line near the bushes was received in the Police station Vivek Vihar. In pursuance of information, DD no. 25A was recorded which was assigned to ASI Bhoop Singh. Accordingly, ASI Bhoop Singh along with Ct. Ajay Vir Singh left the PS. The aforesaid information was also conveyed to SHO and Additional SHO. All the police officers reached the railway line behind Jagannath Mandir, Pratap 2 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Khand and found the dead body of a person aged about 2526 yrs. There were marks of injury on the forehead and face of corpse. On seeing the dead body, it was observable that deceased was murdered by some unknown person. Blood stains were there on the shirt of the deceased. One pocket diary in torn condition was found lying near the dead body. No eye witness was found at the spot.

2. ASI Bhoop Singh made endorsement beneath DD 25A and sent it to PS through Ct. Ajay Vir Singh who got the case registered.

3. Further investigation of the case was assigned to Inspector R.N Vashishta who reached the spot around 7.45 pm, prepared the site plan and got the spot photographed. He seized blood stained soil, earth control, pocket diary, filled up form 25.35 (1) B and prepared other requisite documents.

4. On 29.07.04, in the late evening the dead body was identified and name was revealed as Sanjay Kumar s/o Sh. Dev Raj by his brothers Sh. Sunil Kumar and Sh. Anil Kumar.

5. On the next day dead body was sent to Subji Mandi mortuary for postmortem. Blood sample and blood stained clothes of the deceased 3 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar were taken into possession. During investigation Inspector R.N Vashishta recorded the statement of witnesses.

6. On 30.07.04 accused Raj Kumar was arrested and his personal search was conducted. Accused Raj kumar made disclosure statement and in pursuance to the same got recovered slips of Punjab & Sind Bank, currency notes of Rs. 4500/ and blood stained clothes from his jhuggie and a hammer from the spot of occurrence. Thereafter, he got accused Abhimanyu arrested and his personal search was conducted. In the personal search of accused Abhimanyu Rs.210/ and a pocket diary was found. Slip of Punjab & Sind Bank was also recovered at the instance of the accused Abhimanyu along with cash. Rs.3000/. He also got recovered his bloodstained clothes from a washing machine. Both the accused then led to the place of occurrence and bag of deceased was recovered at the instance of accused persons. All the case property recovered at the instance of accused persons, was taken into possession, pointing out memos were prepared. Both the accused persons were taken to Dr. Hedgewar Hospital and were medically examined.

4 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

7. On 12.8.04 hammer was sent to the doctor of mortuary subzi mandi to give his opinion and doctor opined that he will give his opinion later on. Postmortem report was obtained in which cause of death was given as extensive caranio cerebral injuries as a result of blunt force impact diverted upon head by some hard heavy blunt object by other party. That all the injuries were antimortem in nature and were sufficient to cause death in ordinary course of nature. Time since death was opined to be 24 to 25 hours prior to postmortem.

8. Investigation was transferred to the then SHO of PS Vivek Vihar in the meantime. He got the scaled site plan prepared through Ct Sonu Kaushik. He got collected on 23.8.04 through HC Amrish the mobile phone details from Bharti Cellular concerning mobile no. 9810585821. As per the call details accused Abhimanyu had talked on 21.4.04 on the mobile phone of deceased. On 29.7.04 at about 9.35 am accused Raj Kumar had talked to Sanjay on his mobile phone from STD booth phone no. 22137946.

9. Hammer about which opinion was deferred and was used in the murder of deceased was sent to the opinion of autopsy surgeon on 5 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar 30.8.04 and autopsy surgeon opined that the injury can be caused by the hammer or such like weapon.

10. Exhibits of the case were sent on 09.9.04 to CFSL, Kolkata through Ct. Satyaveer.

11. Ld. M.M. in compliance of Section 207 Cr.P.C., supplied copies to the accused persons and committed this case to Ld. Sessions Judge and case was thereafter pending trial in the court of Smt. Reena Singh Nag, Ld. ASJ. On account of transfer of Ms. Reena Singh Nag, Ld.ASJ, case was assigned to me by Ld. Sessions Judge, in August, 2009.

12. On 17.1.2005, charge under Section 302/34 IPC was framed against accused Rajkumar. Accused had pleaded not guilty and claimed trial.

13. Accused Abhimanyu expired on 24.11.04 in jail as per report of Jail Superintendent dated 27.11.04 as so referred in the order sheet dated 15.12.04.

6 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

14. To substantiate the charge, prosecution has examined PW1 Inspector Vinod Kumar, PW2 Sh. Sunil Kumar, PW3 Sh. Anil Kumar, PW4 Sh. Radhey Shyam Singh, PW5 Dr. K. Goel, PW6 Mohd Shamim, PW7 Ct. Ajay Veer Singh, PW8 Ct. Satyavir Singh, PW9 Ct. Ramesh, PW10 Ct. Sonu Kaushik, PW11 Ct. Shiv Kumar, PW11A Sh. Mohan Lal, PW12 Dr. Leela, PW13 Ct. Naseem Nabi, PW14 Ct. Shiv Kumar, PW15 Ct. Subhash, PW15A ACP Ram Niwas Vashishta, PW16 ASI Bhoop Singh, PW17 Ct. Jagpal Singh and PW18 retired SI Raghuvir Saran.

15. PW1 Inspector Vinod Kumar has testified about the manner in which the investigation was conducted by him. He has testified that on 20.8.04, he called Ct. Sonu Kaushik and at the instance of ASI Bhoop Singh, Ct. Sonu Kaushik, prepared the scaled site plan of the spot. He further testified that on 23.8.2004, he got the details of telephone No. 9810585821 belonging to the deceased collected from Bharti Cellular Ltd. and proved it as mark X. That he obtained the opinion from the concerned Dr. Kulbhushan Goel, in respect of weapon of offence i.e. Hammer. He further testified that on 9.9.2004, exhibits were sent through 7 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Ct. Satbir to CFSL Calcutta who came back on 16.9.2004. He collected the statement of account no. 4884 from Punjab & Sind Bank, Fatehpuri and proved copy of the same as Ex.PW1/A. He also proved the report of CFSL as Ex.PW1/B.

16. PW2 Shri Sunil Kumar has testified that on 29.7.2004, on receipt of information about the murder of his brother Sanjay Kumar, he went to mortuary where he identified the dead body of his brother on 30.7.2004 and proved his report regarding identification of dead body of his brother vide Ex.PW2/A.

17. PW3 Shri Anil Kumar has testified that on 29.7.2009, his brother Sanjay had left the house around 10.30 a.m. by saying that he was going to Raju. He further testified that his brother did not return home till evening so he became worried about him. That in the meantime, he received a phone call from PS Vivek Vihar that his brother Sanjay had been murdered. That on this information, he alongwith his younger brother went near railway line Pratap Khand where they found dead body of their brother Sanjay lying in the bushes and there were several injury marks on his forehead and mouth. He further testified that when his brother Sanjay left the house, he was carrying one red colour bag containing Rs.9000/, one mobile phone make NOKIA. He has also 8 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar testified about recoveries effected at the instance of the accused persons.

18. PW4 Shri Radhey Shyam has testified about the manner in which the investigation was conducted by the police in his presence. He testified that on 30.7.2004, he alongwith police officials went to the house of a boy at Harijan Basti Bank Colony Road, Gali No.5 who was arrested by the police and his name was revealed as Raj Kumar @ Raju. That accused made a disclosure statement Ex.PW4/A and that in pursuance to the disclosure statement led them to his jhuggi in Jhilmil Industrial Area and produced blood stained clothes belonging to him which were taken into possession vide memo Ex.PW4/B. That he also got recovered Rs.4500/ in the denomination Rs.100/ on which two slips of Punjab & Sind Bank were attached. He further testified that thereafter accused led to the place of incident at Partap Khand and got recovered a hammer which was seized vide memo Ex.PW4/D. He has proved the pointing out memo as Ex.PW4/E. That accused led to the house of co accused Abhimanyu who was interrogated. That Abhimanyu got recovered sum of Rs. 3000/ being his share of booty and a slip of Punjab & Sind bank which were seized vide Ex.PW4/F. That accused Abhimanyu in pursuance to his disclosure statement got recovered the security dresses which were seized vide memo Ex.PW4/H. One pant & shirt from washing machine which were 9 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar seized vide Ex.PW4/J. This witness further testified that from the house of Abhimanyu, accused Raj Kumar and Abhimanyu took them to place of incident. That Abhimanyu and Raj Kumar pointed out towards the place where the bag was thrown and a bag was got recovered by them from a place which was at a distance of 300400 steps from the place of dead body, belonging to deceased. This witness identified the case property as Ex. P1 to P10 as the same which were recovered in his presence.

19. PW5 Dr. Kulbhushan Goel has testified that on 30.7.2004, he conducted postmortem on the body of Sanjay Kumar s/o Dev Raj. He has proved his postmortem report vide Ex.PW5/A. He has given his statement as follows: "On 30.7.04 I conducted Postmortem on the body of Sanjay Kumar S/o Dev Raj which was sent by Inspector R.N. Vasishta PS Vivek Vihar with the alleged history of found dead by the police in the area between Jagan Nath Temple and Railway Line on 29.7.04 at 5.30 pm. On external examination I found the following external injuries:

1. Lacerated wound 5 x 1.5 cm over middle of fore head with contusion and abrasion at margins. Under lying bone was communitted and around this injury there were 7 small lacerations ranging between 1 x .5 to 2 x .5 cm scattered over fore head and eye brows with communition of under lying bone.

2. 10 lacerations of sizes between 1 x .5cm to 2.5 x 1 cm scattered all 10 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar over scalp with bruised margins with depressed deformity under lying bones.

3. 5 Lacerations 1 x .25 cm to 2 x .75 cm over right side face with fracture right malar bone, two lacerations each 1.25 x .5 cm with bruised margins over left face before left eye over left zygomatic prominance with fracture under lying bone.

4. Lacerations 1.25 x .5 cm between right ear and right eye area.

5. Diffuse reddish brown bruising with over lying abrasions 8 x 4 cm area over front of neck on and below apple of adam.

'Lacerate' means tear or deeply cut (the flesh or skin): severely mutilate or damage by tearing or crushing: a machine having two or more cylinders turned by a handle between which wet laundry is squeezed (to remove excess moisture) and pressed.

'Diffuse' means spread over a wide area.

'Bruise' means an injury appearing as an area of discolored skin on the body caused by a blow or impact rupturing underlying blood vessels. Internal examination Sub scalp bruising scattered all over scalp with hematoma. Depressed communitted fracture frontal bone all over, right temporal bone 2.5 inches x 5 inches area and left parietotempral bones in area 3.5 inches x 2.25 inches. Meninges torned at frontal and both temporal lobes. Brain matter lacerated at frontal and both temporal lobes. Diffuse subarachnoid hemorrhage all over brain surface. Blood clots present over base of skull anterior and middle fossa.

On reflection of skin of neck subcutaneous and platysmal bruising seen over front of neck under neath injury no. 5. There was vertical crack fracture present over body of thyroid cartilage at centre about 1 cm long from its top end with bruising around.

11 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Opinion Cause of death was extensive craniocerebral injuries as a result of hard, heavy blunt force impact diverted upon head by some heavy hard blunt object by other party. All injuries were antemortem in nature. Mode of death was homicidal. Craniocerebral injuries were sufficient to cause death in ordinary course of nature. Time since death was about 2425 hours.

The clothes and blood sample of the deceased were sealed and handed over to police. My detailed postmortem report is ex.PW5/A which bears my signature at point A. On 02.8.04 SHO Vivek Vihar tendered an application along with a sealed packet inscription of which was RNV. On opening the packet it was found to contain one hammer. After examination of the weapon I opined that the injuries no. 1 to 5 mentioned in postmortem report Ex.PW5/A were possible by this weapon or by similar such type of other weapon. The hammer was resealed along with the police seal with the seal of KLS and handed over to the IO. My opinion is Ex.PW5/B which bears my signature at point A."

20. PW6 has not supported the case of the prosecution concerning portion 'A' to 'A' of Ex.PW6/A.

21. PW7 Const. Ajay Veer has testified about the manner in which the investigation of this case was conducted in his presence by ASI Bhoop Singh. He has testified that on receipt of DD no. 25 A, he alongwith ASI Bhoop Singh reached behind Jagannath Temple Pratap Khand near railway line and found a dead body of a male person lying in the bushes. He further testified that one 12 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar pocket diary was also lying near the dead body; no eye witness met them there. That IO prepared ruqqa which he took to P.S. and got the case registered, returned to the spot and handed over the original ruqqa and copy of FIR to I.O. He further testified that pocket diary was taken into possession vide memo Ex.PW2/A. He further testified that I.O. lifted blood stained earth, earth control from the spot which were sealed with the seal of RNV and were taken into possession vide memo Ex.PW7/A. He further testified that they went in search of suspect Raju at Jhilmil Industrial area, but he was not found available there.

22. PW8 is Ct. Satyavir Singh who has testified that on 9.9.2004, he took the exhibits of this case to CFSL Calcutta vide RC No.192/21 and deposited the receipts of the same with MHC(M). He further testified that so long as the exhibits remained in his custody, the same were not tempered with.

23. PW9 Const. Ramesh has testified that on 29.7.2004, on the request of SHO PS Vivek Vihar, he reached at Partap Khand behind Jagan Nath Mandir, Railway Lines and on the direction of I.O., took seven photographs of the dead body. He proved positives of the same as Ex.PW9/A1 to A7 and negatives as Ex.PW9/A8 to A14.

24. PW10 Ct. Sonu Kaushik has testified that on 20.8.2004, around 6 p.m., he visited the place of ocurrence i.e. back side of Jagan Nath Temple, 13 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Pratap Khand near railway track with Inspector Vinod Kumar , SHO PS Vivek Vihar, Inspector Kishan Lal and ASI Bhoop Singh where he prepared rough notes and took measurement on the pointing out of ASI Bhoop Singh and on the basis of rough notes, he prepared scaled site plan Ex.PW10/A.

25. PW11 Ct. Shiv Kumar has testified that on 29.7.2004, around 8.30 p.m., he was given envelops containing copies of FIR of this case. That he delivered the same to ACP, DCP range and area M.M.

26. PW12 is Dr. Leela who has proved the MLC of accused Abhimanyu as Ex.PW12/A and accused Raj Kumar as Ex.PW12/B.

27. PW13 Ct. Naseem Nabi has testified that on 29.07.04 at the direction of SHO he reached near Jagannath Temple Pratap Khand at railway track, from where he took the dead body of a person at the instance of IO and deposited the same in mortuary Subzi Mandi. He further testified that on 30.07.04 postmortem of the dead body was conducted. He proved the memo Ex.PW13/A vide which sealed pullanda containing the clothes of deceased, one sealed envelope containing blood sample of the deceased and sample seal were seized.

28. PW14 Ct. Shiv Kumar has been examined twice inadvertently. PW 15 Ct. Subhash has proved the copy of DD no. 46B as Ex.PW15/B. 14 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

29. PW15 ACP Ram Niwas Vashisht has proved the copy of FIR Ex.PW15/A, inquest proceedings Ex.PW15/B, slip Ex.PW15/C, application for conducting postmortem as Ex.PW15/D, rough site plan Ex.PW15/E. He sent the sealed pullanda containing the hammer to the Autopsy surgeon, Subzi Mandi, Delhi for subsequent opinion vide application Ex.PW15/F. He collected the CFSL report vide Ex.PW15/G and H.

30. PW16 ASI Bhoop Singh has proved his endorsement Ex.PW16/B made on rukka Ex.PW16/A.

31. PW17 Ct. Jagpal Singh has proved the details of entries mentioned in register no. 19 at entry no. 2699 and 2700 vide Ex.PW17/A. He further testified that on 09.09.04 vide RC no. 192/21 Ct. Satbir took exhibits of this case to CFSL, Kolkota and deposited the receipt regarding the same vide entries Ex.PW17/B (Colly). He further testified that on 12.08.04 ASI Bhoop Singh took sealed pullanda containing hammer which was deposited vide RC no. 77/21 to Subzi Mandi, Mortuary and on 30.08.04 the same was deposited back in the malkhana and proved the relevant entries collectively as Ex.PW17/C.

32. PW18 retired SI Raghubir Saran has proved the copy of FIR Ex.PW15/A which was recorded on the basis of rukka sent by ASI Bhoop Singh and brought by Ct. Ajay Veer Singh.

15 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

33. Statement of the accused was recorded under Section 313 Cr.P.C. without oath in order to give an opportunity to the accused to explain the circumstances appearing in evidence against him. Accused has denied the case of the prosecution in its entirety and submitted that he is innocent and has been falsely implicated in the present case. Accused opted to lead defence evidence.

34. Accused has examined two witnesses from DCP Office to establish that his dossier was being prepared at about 5.30 pm which is the time of recovery as so put forth by the prosecution.

35. Sh. S.K. Ahluwalia Ld defence counsel has vehemently argued that prosecution has failed to establish its case against the accused beyond the shadow of reasonable doubt. He has argued that this is a case of circumstantial evidence and all the links in the chain of circumstantial evidence have not been completely joined. He has submitted that prosecution has putforth five circumstances against the accused in the shape of : (1) telephone by accused to deceased (2) recovery of currency notes having bank slips (3) recovery of blood stained clothes from both the accused (4) recovery of hammer and bag 16 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar of deceased from near the spot (5) motive. He has submitted that PW6 Mohd Shamim with respect to telephonic conversation has not supported the case of the prosecution and stand declared hostile. He has argued that recovery of cash from the accused persons is highly improbable. That there is planting of currency notes and bank slips on both the accused persons. That a bank slip is attached to the currency notes only when number of notes are 100.That in the present case currency notes were Rs. 9000/ and hence question of bank slip being there could not have arisen. He also argued that three bank slips would not have been there. He also argued that signatures of the customers are not taken at the time of withdrawal of the money from the bank. That on the packets containing 100 notes slip contains the signatures of the bank officials and not that of the customer. That there is no entry concerning withdrawal of Rs. 9000/ in the bank account statement of deceased Sanjay Kumar bearing no. 4884.

That recovery in this case has become doubtful as accused has brought defence to the effect that at 5.30 pm on 30.7.04 his dossier was being prepared on 30.7.04. He has also argued that time of recovery 17 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar according to the case of prosecution is 5.30 pm and both these facts are contradictory to each other going in favour of the accused. It has been argued that according to the crime team nothing was found in the radius of 100 meters of the dead body of deceased. That recovery thereafter of hammer and bag thus becomes planted. That PW2 Sunil has testified that accused persons stood arrested on 29.7.04 and recovery stood affected from them and this is contradictory to the version of the police in which recovery has been shown to have taken place on 30.7.04. That no motive has been proved. That CFSL report in themselves are not conclusive to observe that offence u/s 302 IPC has been established against the accused. Sh. S.K. Ahluwalia has placed reliance on the following judgments: Gopal Vs State, 1997 Cr.L.J 358, Paulusoram Vs State of Orissa, III, (1999) CCR 658 (DB), Chander Pal Vs State, 1999 (1) RCR Criminal 150, Ganga Singh & Another Vs State of UP, 1998 Cr.LJ 3362, Devraj Vs State (J & K), 2005 (1) Crimes 378, Ujagar Singh & Ors Vs Emperor, AIR 1939 Lahore 149, Nirmal Munnu Vs The State 1985 (1), Crimes 593, Tulsi Ram Kanu Vs State AIR 1954 SC1, Salig Ram Rattan Lal Garhewal Vs Emperor AIR 1938 Nagpur 52, Prabhu Babaji Navle Vs State of Bombay, AIR 1956 SC 51, Sanwat Khan and Anr. Vs State of 18 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Rajasthan AIR 1956 SC 54 and State Vs Shankar Prasad and Anr, AIR 1952 Allahabad 776.

36. Ld. Public Prosecutor on the other hand has refuted the submissions made by Ld defence counsel. He has submitted that CFSL report clinchingly connects the accused with the commission of the offence. That there are other circumstances which have been proved by the prosecution. That merely because there are some contradictions in the testimonies of witnesses, it cannot be concluded that case of the prosecution is false. That such like contradictions are bound to take place in every case and testimonies are to be seen on broad parameters. He has submitted that judgment placed reliance upon are distinguishable on facts.

37. Before proceeding to determine the issues involved I deem it expedient to refer to some precedents which will help in determination of the case.

38. Hon'ble Supreme court in B.K. Channappa Vs State of Karnataka reported in AR 2007 SC 432 has held that if the witnesses are examined after a considerable gap from the date of incident and are subjected to searching lengthy cross examination, then some discrepancies are bound 19 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar to occur in their testimonies. That duty of the court is to see as to whether the contradictions are very serious, vital and significant so as to disbelieve and discard substratum of the prosecution case. If the testimony matches with the case put forth by the prosecution on a broader probability then the case of the prosecution has to be believed. In this case witnesses were examined after a period of five years.

39. In Vikram Vs State of Maharastra reported in AIR 2007 SC 1893 similar view was taken when the witnesses were examined after a period of two and a half years of the incident.

40. In AIR 2007 SC 2257, it has been held that conviction can be had on the testimony of a single witness and improvements made by the witness as to irrelevant details are not be labeled as omission and contradictions. It was also held that unnatural conduct of accused will strengthen the case of the prosecution if no explanation about unnatural conduct is given. In this case prosecution had alleged that accused has killed his wife. Case of the accused was that he had come to the house after the incident. Non lodging of the FIR on the part of the accused in absence of any explanation in this regard was held to be circumstance 20 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar strengthening the case of the prosecution.

41. In AIR 2007 SC 3106 titled as Girja Prasad Vs State of MP it has been held that police witnesses are not to be disbelieved simply for the reason that they are police officials. Presumption of honest behavior applies equally to police officials and credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness.

42. In Kulesh Mandal Vs State of West Bengal reported in AIR 2007 SC 3228 it has been held that material discrepancies are those discrepancies which are not expected of normal person. Normal discrepancies do not corrode creditability of a parties case. In this very case it was held that testimonies of relatives / interested witnesses are not to be discarded simply for the reason that it was the testimony of a witness or closed relative. AIR 1953 SC 364 (Dalip Singh & Ors Vs State of Punjab) was relied and observations of famous Judge Justice Vivian Bose were quoted. AIR 1965 SC 202 (Masalti & Ors. Vs State of UP) was relied upon and it was held that testimonies of partisan / related / interested witnesses are to be perused with extra care and caution and if found credit worthy, can be made basis of conviction. State of Punjab Vs 21 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Jagir Singh AIR 1973 SC 2407 was relied with AIR 1981 SC 1390 wherein it was observed that normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized.

43. In Krishan Mochi & Ors. Vs State of Bihar reported in 2002 AIR SCW 1909 the above mentioned position was explained further. Method of appreciation of testimonies of oral and medical nature in juxta position was explained and it was held that if oral evidence is trustworthy then medical evidence being opinionative in nature shall go on a lower pedestal then the oral testification.

44. Hon'ble Supreme Court has explained about the maxim 'falsus in uno, falsus in omnimus' in many cases in general and for the sake of referring I am referring Nishar Ali Vs State of Utter Pradesh. In this case it was held that this maxim has not received general acceptance in India 22 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar and is not a mandatory rule of evidence. It was also observed that merely because coaccused is acquitted, this fact is not such a fact which will entitle the other accused for acquittal. It has been held that in India application of this maxim can be a dangerous one as, if applied, it may lead to a dead stop for administration of criminal justice. It was observed that the witnesses just cannot help in giving embroidery to a story, however, true in the main. It was further observed that the aforesaid maxim is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment (Shehrab & Ors Vs State of MP (1972) 3 SCC 751). It was further observed by relying Umarahir & Ors Vs State of Bihar, AIR 1965 SC 277 that an attempt has to be made to in terms of felicitous metaphor, to separate grain from the chaff. When it is not physible to separate the grain from the chaff, grain and chaff being inextricably mixed up and in the process of separation an absolutely new case coming up then only evidence has to be rejected intoto. AIR 1954 SC 15, AIR 1975 SC 1962, AIR 1981 SC 1390 were relied and it was observed that normal discrepancies due to normal errors 23 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence are bound to occur as these will always be there. However, honest and truthful a witness may be.

45. In Vadivelu Thevar Vs State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court observed as follows: "Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity with the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories namely : (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by 24 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. . . . . . . . . . . ."

46. In Narain Vs State of MP, 2004 (2) SCC 455; 2004 AIR SCW 1226 it was held as follows: "Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some may remain tightlipped overawed either on account of the antecedents of the assailant or threats 25 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."

47. With respect to circumstantial evidence, judgment of Hon'ble Supreme Court in Hanumant Govind Nargundkar & Anr. Vs State of Madhya Pradesh reported in AIR 1952 SC 343 is being followed which was reaffirmed in Sharad Birdhichand Sarda Vs State of Maharashtra wherein the requirements were held as follows: "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3)the circumstances should be of a conclusive elusive 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."

26 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

48. In B.P.N. Reddy & Ors Vs State of Andhra Pradesh, 1991 (3) SCC 434 reference to cross examination of Pws was made and it was held that witness is required to give the details of occurrence in a normal manner and substratum of the testimony is to be seen and court has to separate the grain from the chaff. It was further held that where chaff can be separated from the grain it would be open to the court to convict an accused notwithstanding the fact evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end.

49. With respect to contradictions and improvements Hon'ble Supreme Court has observed many judgments in general and in AIR 1982 SC 839, in particular that contradictions and improvements are to be seen from a broader point of view and contradiction and improvements which are not related to the facts in issue are to be ignored. It was also observed that witness is to be contradicted only by his statement and not with the statement of other witness.

50. In 2001 Crl.L.J 515 the words 'may presume' and 'shall presume' 27 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar were adverted to and a discussion about presumption was made. It was held that presumptions falling under the category of 'may presume' are compendiously known as 'factual presumptions' or 'discretionary presumptions' and those falling under 'shall presume' are known as legal presumptions or compulsory presumptions. Legal presumptions are of commanding nature and have to be drawn. 'Discretionary presumptions' may be drawn on the basis of facts proved by the parties.

51. With respect to 'proof' legal position was beautifully explained by fletcher molten, L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) and it was observed as follows :

"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."

The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact 28 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business visavis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

52. It was further observed that presumptions can be drawn from facts with the rider that presumption from presumption cannot be drawn until and unless some statutory compulsion is there.

53. Section 114 of the Evidence Act was discussed in Raghubir 29 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Singh Vs State of Punjab and possession of marked currency notes was held as 'res ipsa loquitor' for drawing of presumption with respect to gratification.

54. With respect to doctrine of benefit of doubt, Hon'ble Supreme Court has observed in recent judgments that exaggerated devotion to this rule should not be had. In AIR 1990 SC 209 it has been held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty people escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reason and common sense it must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in meticulous hyper sensitivity to eliminate a rare innocent from being punished, many guilty 30 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.

55. In Inder Singh Vs State AIR 1978 SC 109 it has been held that vague hunches cannot take place of judicial evaluation. 'A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth.

56. In Shivaji Sahebrao Bobade v. State of Maharashtra, (1974 (1) SCR 489 (492493)) : AIR 1973 SC 2762 : 1973 Cri LJ 1783 : it has been observed that the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be 31 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar stretched morbidly to embrace every hunch, hesitancy and degree of doubt. . . . . . . ."

". . . . . . . . .The evil of acquitting a guilty person lightheartedly as a learned author Glanville Williams in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittal become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness. . . . . . . . . ."

". . . . . . . .a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent . . . . . . . . ."

57. In Krishan Gopal Case a beautiful discussion about appreciation of evidence has been given and I am tempted to quote the same at the cost of circumlocution.

"It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye witnesses' account would require a careful independent 32 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particularly to each case. Referring to of probability amounts to 'proof' is an exercise the interdependence of evidence and the confirmation of one piece of evidence by another a learned author says :

(See "The Mathematics of Proof II" : Glanville Williams : Criminal Law Review, 1979 by Sweet and Maxwell, pp. 340 (342)). "The simple 33 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together.

The one piece of evidence may confirm the other." Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It 34 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust commonsense and, ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."

58. Position with respect to 313 Cr PC is to the effect that if prosecution brings on record evidence which throws the onus on the accused and the accused fails to discharge the onus, then this factor can be used as an additional circumstance to lend credence to the case of the prosecution. No doubt accused is presumed to be innocent till proved guilty but this doctrine has certain limitations and duty is cast upon the accused to explain the circumstances which were in his exclusive knowledge. If the accused fails to give a proper explanation then court 35 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar has to draw an adverse inference against the accused. Some of the legal precedents in this regard are being given.

59. In A. Abdul Kafir Vs. State of Karela, reported in 2004(9) SCC 333 and T. Shankar Prasad Vs. State of A. P 2004(3) SCC 753, it has been mandated that court should be wary of belated explanations under section 313 Cr.P.C.

60. In Raj Kumar Prasad Tamkar Vs. Stated of Bihar, reported in AIR 2007 SCW 295, it has been held that in the absence of sufficient and cogent explanation in the answers to the questions under section 313 Cr.P.C, the court would be entitled to consider the same as a circumstance against the accused.

61. With respect to section 313 Cr PC legal position stands well settled by the Hon'ble Supreme court. The crux of the legal position is to the effect that accused cannot be convicted on the basis of the admissions of the accused in his statement U/s 313 Cr PC alone. However, the effect of the answers given by the accused has to be considered in light of the other evidences brought on record by the prosecution. If the accused gives false answer to a question in a 36 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar statement u/s 313 Cr PC and prosecution has led plausible evidence against the accused connecting him to the commission of offence reasonably, then the false answer can be taken to be as a link in the chain of circumstantial evidence and can help in establishing the completion of the chain. In Bobby Mahadev Vs State of Karnataka reported in 2004 Cr LJ 3003, this position was explained and para 19 and 26 of case titled as State of Karnataka Vs K Yaduppa Reddy were extracted. 2005 Cr LJ 4604, 1998 Cr.LJ 1411, 2002 AIR SCW 4204, 1998 AIR SCW 778, 1997 AIR SCW 587 and 2007 Cr.L.J 1145 are the relevant judgments if one has to go in detail with respect to legal position u/s 313 Cr PC. Section 313 Cr. PC is a departure from English law. Under English Law no assistance can be taken from the answers of the accused. The position is not so in India and has been diluted by virtue of section 313 Cr PC which is as follows:

Power to examine the accused. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court

(a) may at any stage,without previously warning the accused put such questions to him as the Court considers necessary;

37 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally about the case;

Provided that in a summonscase where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under subsection (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

Thus section 313 (4) Cr.P.C authorizes the court to draw presumptions in favour of or against the accused and law of presumptions has been brought in operation. I am not burdening this judgment anymore with the precedents for the reason that 313 (4) categorically provides that answers given by the accused can be taken into consideration by the trial court.

38 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

62. Coming to the facts of the present case. First and most important circumstance against the accused is the recovery got effected in pursuance to the disclosure statement of the accused. Accused Raj Kumar in Ex.PW4/A stated that a sum of Rs. 9000/ was found in the pant of the deceased which was taken. That he and his associate had taken away the brown color bag of the deceased. That on the way to Vishwas Nagar bag was checked and it was found containing a file and some papers. He also disclosed that he had thrown the hammer in the drain which was at some distance from the place of occurrence. He also disclosed that amount of Rs.9000/ was distributed amongst them. He also disclosed that he had kept the T shirt, banyan and pant at the tea shop as the same had become blood stained.

No doubt the above discussed disclosure cannot be read against the accused persons for the bar of section 24, 25 and 26 of the Indian Evidence Act. However, the recovery aspect in pursuance to the disclosure statement becomes admissible by virtue of embargo lifting section 27 of Indian Evidence Act. Scope of section 27 was explained long ago by Privy Council in Phulkari Kottaya's case. Recovery in 39 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar pursuance of disclosure statement has been proved clinchingly by PW4 and PW3. I am discussing about the same infra.

63. PW4 Sh. Radhey Shyam is an independent witness in this case and testimony of this witness categorically connects the accused Raj Kumar with the commission of offence. This witness had no reasons at all with him to implicate the accused falsely. This witness denied the suggestions that he was a relative of Anil Kumar and for that reason had signed all the documents. Accused has not brought on record anything in pursuance to the suggestion of relationship of PW4 with Anil Kumar. In view of this, testimony of PW4 Sh. Radhey Shyam Singh is of immense importance.

64. This witness has testified in consonance with the version of the case of the prosecution put forth in the report u/s 173 Cr PC and the materials appended with the same. Examination in chief of this witness has been adverted to by me in the opening of the judgment and the same is not being reproduced for the sake of brevity. Some of the aspects which vouch about the credibility of this witness are being adverted to although at the cost of circumlocution. I am knowingly discussing the 40 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar testimony at the cost of circumlocution and some repetition in view of seriousness of offence.

65. This witness has testified that on 30.7.04 he had volunteered to join the investigation of this case along with one Anil Kumar and one Shamu Singh (Shamu Singh is none else but the brother of the accused.) Had this witness been a planted witness, as argued, then he would not have given the name of Shamu Singh. This is a very strong circumstance which vouches about the credibility of this witness and goes against the accused. Non examination of Shamu Singh by the accused cements my conclusion.

66. Another circumstance which vouches about the credibility of this witness is that this witness has testified about running of the accused towards the roof. This is the consistent version of other witnesses as well. Had this witness not been a true witness, then this version would not have come.

67. Another fact which vouches about the credibility of this witness is that he has testified that accused had pointed out towards one 'sutli' which was found being tied near the jhuggi on which blood stained 41 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar clothes of accused were hanging. This very version has also been given by other witnesses which would not have been possible had the recovery not taken place at the instance of accused in presence of this witness.

68. Similarly, version of this witness about recovery of 45 notes of Rs. 100/ denomination currency notes along with slip of Punjab and Sind Bank vouches for the credibility of this witness.

69. Another fact which vouches for the credibility of the PW4 is the narration of other facts by this witness which are in consonance with the case of prosecution concerning accused Abhimanyu. This witness testified that accused Abhimanyu had produced one pant and shirt from the washing machine. The same version has been given by other PWs and this aspect adds another feather in the credibility cap of this witness. This witness has identified the case property as Ex.P1 to P10 and has not been shaken in cross examination in this regard. This is another factor which vouches for the credibility of this witness.

During cross examination this witness has not been shaken. This witness has testified that the distance between the place of incident and his house is 18 to 20 km. He has disclosed that he is working in MTNL as 42 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Senior Account Officer. This witness is an educated witness and would not have deposed falsely until and unless there was some motive with him. Defence has not established any motive on the part of this witness for false deposition. He was grilled at length by the defence and he gave rational answers boldly and emphatically. He has given the name of his another colleague namely Sh. Y.P. Saini. He has given his address as well. Had the defence put forth by accused been true, then defence would have dared to examine Sh. Y.P.Saini in defence. The explanation given by the witness about his presence at the spot is quite natural explanation and no fault can be found with the same. He has categorically testified that Anil, Sunil and Sanjay were not known to him. This again goes against the accused. This witness has testified during th th st cross examination (4 and 5 line from bottom to top of page 1 of cross examination dated 15.2.06) that police officials as well as Anil had requested number of persons to join the investigation but none of them agreed and went away. (This version is corroborated by PW3 Sh. Anil Kumar who has testified that he was weeping and was requesting the public persons to join the investigation. He has further testified that one 43 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar person agreed to join the proceedings on his request and request of police.). In my considered view PW4 was moved by the weeping of PW 3 and agreed to join the investigation. PW3 Sh. Anil Kumar was examined prior to this witness and had the version of this witness not been true, then the defence would have dared to ask questions about weeping of PW3 from PW4. (PW3 has testified about weeping at page 5 of cross examination dated 31.10.06). It has not been so done and this aspect of testimony of PW4 in cross examination also vouches about the credibility of this witness. This discussion covers the first page.

70. At second page of his cross examination, defence could not elicit anything which can be said to be favorable to the accused. Second page of cross examination is concerning the events relating to arrest of accused and PW4 has not deviated at all from material aspects of the case. Assailment of the testimony of this witness on the ground that he admitted that he did not went inside the house at Mandoli is of no help as the version is natural one and the witness has not concealed anything. His going or not going inside Mandoli house was not material as prosecution at this stage was proving only the apprehension of the 44 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar accused. Proceedings at the place of apprehension of the accused do not have any bearing to the material facts in issue and hence defence cannot get anything out of it.

71. Assailment of the testimony of this witness on the ground that he has testified about sealing of articles at PS is of no help as I am of the considered view that this witness has not paid attention to the sealing aspect and in order to cover up his inadvertence stated that papers were signed in the PS and sealing took place in PS. I have no hesitation to observe that this witness has due to inadvertence stated falsely that sealing and preparation of papers took place at the PS. Best witnesses to depose in this regard were police officials. It has not been suggested to police officials that sealing had not taken place at the spot. In view of this testification by PW concerning sealing of parcels in the PS becomes immaterial.

72. Moreover, most of the objects seized in this case are of such a nature, sealing or unsealing of which would not have made much difference. It is not the case of the accused that clothes were not belonging to him. It is also not the case of the accused that the bank slips 45 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar were not pertaining to the account of the deceased. It is not the case of the accused that police had sprinkled blood on the clothes of the accused. It is not the defence of the accused that blood of deceased was poured / sprinkled on the hammer. It is not the case of the accused that clothes of the deceased were not sent to FSL. The version of the accused in second statement u/s 313 Cr PC to the effect that his clothes were never recovered by the police is undoubtedly the result of the advice of the Ld defence counsel and no importance can be attached to the same for the reason that after completion of the evidence the defence had become aware of the strong points of the case of the prosecution. All these aspects take out the sheen from the arguments of Ld defence counsel.

73. There is another reason to discard this aspect and the same is the FSL report. Report of the FSL indicates that articles were received by them duly sealed as per the specimen. CFSL report was exhibited by the prosecution in the testimony of the first PW i.e PW1 Inspector Vinod Kumar as Ex.PW1/B. Testimony of PW1 has gone unchallenged and uncontroverted w.r.t Ex.PW1/B. So cumulative effect of all this over 46 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar weighs the testification of PW5 concerning his testification about sealing aspect.

74. I deem it pertinent to mention that it was not at all argued by the defence concerning discrepancies in the testimony of PW4 and I am doing the exercise for satisfying my conscience for the reason that it is a question of liberty of a person.

75. Coming to next page of cross examination of this PW. Nothing favorable to defence has come at this page and the witness has been asked generally about the manner in which the investigation was conducted by the police officials and about the presence of the public persons as well as the residents of the jhuggies.

76. In the last line this witness testified that iron box was containing some clothes also. This goes to reaffirm the presence of this witness. This witness at next page reiterated that the currency notes were having the slips of Punjab and Sind Bank. (Perusal of the bank slips reveals that the same are the counterfoils used by deceased at the time of deposit. Corresponding entries are there in the statement of Bank account of deceased with respect to these counterfoils.) This again vouches for the 47 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar creditability of this witness.

77. This witness was recalled for cross examination on 15.2.06 and 26.05.06. At this juncture I deem it pertinent to mention that incident took place in year 2004. This witness came to depose in year 2006 and that too on two dates. In the circumstances it was not possible for this witness to remember the picturesque details and some contradictions were bound to take place.

78. In the cross examination dated 26.5.06 nothing favorable came to the defence. Same questions were repeated. Assailment that this witness did not depose about passing of trains in contradiction to the version of ACP Ram Niwas Vashisht is of no help as the same is not a material contradiction.

79. This witness has testified that at the first instance of recovery accused Abhimanyu was not present and this version again vouches for the creditability of this witness for the reason that in the case diaries also case of the prosecution is also to the same effect. It is also so the case of the prosecution in the testimonies of IO Ram Niwas and ASI ASI Bhoop Singh. On the second page he mentions about going to the house of 48 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Abhimanyu. He also mentions about bringing of Abhimanyu at the spot. He also mentions that they finally reached at PS Vivek Vihar at 8.00 or 8.30 pm and left the PS at about 9.00 or 9.30 pm. These facts and other facts testified by the witness during cross examination are inconsonance with the facts deposed by other witnesses (PW3 Sh. Anil Kumar and recovery witnesses) and this again is a factor which goes against the accused. Documentary evidence in the shape of MLC, arrest memos etc are also matching with the version of this witness which again vouches for credibility of this witness.

80. This witness has denied the following suggestions which were given to him and I deem it expedient to reproduce the suggestions.

"It is incorrect to suggest that I did not join the proceedings of this case. It is incorrect to suggest that accused Raj Kumar and deceased Abhimanyu were not arrested in my presence. It is incorrect to suggest that no recovery was effected at the instance of accused Raj Kumar and Abhimanyu. It is incorrect to suggest that being relations with Anil Kumar I had signed all the documents. It is incorrect to suggest that I am deposing falsely."

At the cost of repetition, I observe that from the above suggestions it is quite evident that accused has not disputed that the 49 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar clothes recovered from the jhuggi were not that of the accused. It is not the case of the accused that clothes in question were not bloodstained. Testimony of PW4 thus unerringly points out towards the guilt of the accused.

81. In view of testimony of this witness, I have no hitch to observe that PW4 has established the following facts beyond the shadow of reasonable doubt.

(1) Apprehension of accused from his house at Mandoli in the post noon session.

(2) Making of disclosure statement by accused and consequent recovery of blood stained clothes of accused at the instance of accused from a jhuggi located at Jhilmil Industrial area.

(3) Recovery of rupees 4500/ from a box kept at the above mentioned jhuggi and Bank slips (counterfoils) used by deceased at the time of deposit of cheques in his account on the relevant dates. (4) Recovery of hammer from the place of occurrence. (5) Leading of police party to the house of accused Abhimanyu after the recovery of hammer and pointing out of place of murder. (6) Recovery of Rs. 3000/ and Bank slip at the instance of Abhimanyu. (7) Recovery of security dresses purchased for Rs. 1500/ which were part of total booty of Rs. 4500/ which came to the share of Abhimanyu. (8) Recovery of blood stained clothes from the washing machine at the instance of accused Abhimanyu.

50 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar (9) Recovery of bag of the deceased from near the place of occurrence at the instance of both the accused.

82. PW3 Sh. Anil Kumar has testified in consonance with his version in the report u/s 173 Cr. PC. He has testified that Sanjay was his younger brother who was an agent of postal tickets. That on 29.7.03 his brother Sanjay told him at about 10.30 am that one boy namely Raju was running a tea shop in Jhilmil industrial area near the post office who had told him that he was having sufficient tickets with him and he will be giving the ticket on cheap rates. That he asked his brother Raju to the effect that there was no agent in the name of Raju and at this deceased told him that Raju knows one Abhimanyu who would arrange the tickets. That his brother told him that he was having only Rs. 9000/ with him and he should give some money for purchase of tickets. This witness further testified that he was not having any money on that day. That Sanjay left the house at around 10.30 am by saying that he was going to Raju. This witness also testified that his brother had told about Abhimanyu. PW3 Sh. Anil Kumar has testified about recovery at the instance of the accused persons on the line of PW4 and his version in this regard is not being reproduced for the sake of brevity.

51 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

83. Coming to cross examination of PW3. Cross examination at first page first para dated 31.10.06 of PW3 is concerning postal stamps and has no bearing to the material fact in issue. In first para at page 2 of cross examination, PW3 has categorically testified about the identity of the accused. No doubt remains in the mind of a reasonable prudent man that accused, deceased and his brother Anil Kumar were well known to each other and Anil and deceased used to take tea from the tea shop of Raju near General Post Office, Vivek Vihar.

In second para at page 2, cross examination concerns the procedure of the bank. I have no hesitation to observe that cross examination in this regard is misdirected. Had the defence taken care to peruse the counterfoils then much of cross in this direction could have been avoided. Cross examination has been carried out to the effect that deceased had withdrawn a sum of Rs. 9000/ from the bank and bank had given Rs. 9000/ along with the slips signed by the bank officials. Defence took the plea that bank puts the docket only in case there are 100 notes in a wad. Defence failed to observe that it was not the case of the prosecution that Rs. 9000/ were withdrawn by the deceased and the 52 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar same were given with a docket of the bank. On the other hand, case of the prosecution was that counterfoils were found with the amount recovered at the instance of the accused Raj Kumar and Abhimanyu.

In order to clarify this aspect I had called for the bank slips from the police station vide my orders dated 11.11.2009 and on verification had found that the same were counterfoil slips and when this aspect was put to Sh. S.K.Ahluwalia, he had no option but to withdraw his arguments in this regard.

84. I could find from a comparison of bank slips and bank statement of account of the deceased that counterfoils were having the corresponding entries in the account of the deceased and from the same it stand established that counterfoils were belonging to the deceased and onus shifted on the accused to explain as to how the slips came in his possession. An adverse inference has to be drawn for the same against the accused.

85. At page 3 nothing came in favor of the defence except the fact that PW3 testified that his brother Sunil had accompanied him to the spot on 29.7.04. Discrepancy about accompanying of PW Sunil with PW Anil 53 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar is no doubt a discrepancy but the same does not affect the case of the prosecution and independent testimony of PW4 Sh Radhey Shyam nullifies the effect of this contradiction. In my considered view version of PW3 concerning his visit to the spot along with his brother on 29.7.04 is correct and PW2 has inadvertently forgot to depose in this regard. Be that as it may this is not a material omission.

86. At page 4 cross examination concerns about postmortem and removal of dead body etc. Only discrepancy which could be brought by the defence was that the witness had stated that he had signed his statement at the spot before 12 midnight and till 12 midnight police had not seized any articles from the spot whereas case of the prosecution was to the effect that dead body was removed earlier to 12 midnight. However this discrepancy is again not of much help as the same does not have any bearing to the material facts in issue. PW3 has given his explanation at the end of third para of page 4 of cross examination by volunteering that he and Sunil were perplexed. This version is natural version and PW 3 cannot be faulted on this account. This applies more to PW2. This court is duty bound to keep in mind the mental condition of 54 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar a person whose brother has been murdered. It can be anyone's guess that one will not be in position to remember correct details in such a situation. Human behaviour goes to show that even a well poised person will forget the details after lapse of time, then expecting by the defence on the part of PW2 and 3 to give picturesque details is not expectable.

87. At page 5 of cross examination also nothing favorable came in favour of the defence. On the other hand PW3 testified that he can identify the jhuggi of accused Raj Kumar near the post office Jhilmil. He also testified about joining by Radhey Shyam. All these facts are inconsonance with the case of prosecution put forth.

88. At page 6 of cross examination also the situation is same and nothing favorable to the defence has come at this page as well. Similar is the situation at page 7.

89. This witness was again called for cross examination on 12.1.07. In first para he was given certain suggestions concerning his non participation in the proceedings and being introduced as a witness at a later stage. Second para of cross examination was repetition of the cross examination carried out earlier. Last para of cross examination dated 55 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar 12.1.07 concerns accused Abhimanyu since dead.

90. PW3 has not been shaken in his entire cross examination. On the other hand he has testified in corroboration of other PWs. Consistent deposition would not have been possible had the witness not been present at the time of recovery and proceeding in fact would not have taken place.

91. So testimony of PW3 also proves the points proved by PW4. Testimonies of PW3 and PW4 are corroborated by PW15 and PW16.

92. Next circumstance which goes against the accused is the last information evidence which comes under the category of resgestae. It was the categorical case of the prosecution that brother of deceased had placed suspicion on accused Raj Kumar on 29.7.04 itself for the reason that deceased had told him that he was going to Raj Kumar for purchase of stamps. According to the statement u/s 161 Cr PC, dated 29.7.07 i.e. at the time of identification of dead body, accused had asked the deceased to come for purchasing of tickets at cheap rates from one agent whose work was not going on properly. PW Anil had also stated that deceased had demanded money from him and he had refused to give 56 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar him the money on the ground that he was not having money. It was also stated by PW Anil that deceased had been to the accused with a sum of Rs. 9000/ with him. It was also stated that accused was known to the deceased as well as PW Anil for the reason that he and deceased used to have tea from the tea shop of Raju situated at Jhilmil industrial area General post Office. PW Anil had led the police party to the house of accused Raju who was not found at his residence. This evidence is also admissible by virtue of section 32 of Indian Evidence Act for the reason that it concerns the cause of death of deceased.

93. The above discussed testimony of PW3 Sh. Anil Kumar goes to show that deceased had left for joining the company of the accused and this fact is a very strong circumstance against the accused Raj Kumar and accused Abhimanyu (since expired). This fact rules out the possibility of the false implication of accused Ahimanyu and Raj Kumar by the police officials.

94. PW3 and PW4 have testified inconsonance concerning running of accused towards roof through stairs at the time of his apprehension at Bank Colony, Mandoli, Harizan Basti. All the Pws have testified 57 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar inconsonance with each other concerning clothes of accused Raj Kumar being hanging on a sutli. All the Pws are inconsonance with respect to recovery of Rs. 4500/ along with two counterfoils from accused Raj Kumar. All the Pws are inconsonance with respect to recovery of hammer at the instance of accused Raj Kumar. All the Pws are inconsonance with respect to recovery of Rs.3000/ from accused Abhimanyu. All the Pws are inconsonance with respect to recovery of belts and uniforms of security guard from accused Abhimanyu. All the Pws are inconsonance with each other concerning recovery of clothes at the instance of accused Abhimanyu from a washing machine.

This much of consonances would not have been possible had the case of prosecution not been true and for this reason I have no hesitation to observe that prosecution witnesses are credit worthy.

95. One other strong circumstance which is inconsonance with the records of the case is that accused Abhimanyu as per version of PW15 (last five lines of examination in chief of PW15 dated 10.01.08) was called at the spot in pursuance to slip Ex.PW15/C which was found in the diary of the deceased. Accused Abhimanyu came to the spot in 58 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar pursuance to the telephone call and expressed his inability to identify the dead body. This act on the part of the accused Abhimanyu was uncalled for and for thus an adverse inference has to be drawn against the defence.

96. PW15 ACP Ram Niwas has fully corroborated the version of PW4 and PW3 concerning recoveries having taken place at the instance of accused Raj Kumar and Abhimanyu and his testimony supports the case of the prosecution in material particulars. It also corroborates the version of the prosecution concerning recovery of blood stained clothes, bank slips, Rs.4500/ and hammer at the sole instance of accused Raj Kumar. Testimony of PW15 also corroborates the case of the prosecution and version of other witnesses concerning recovery of Rs. 3000/, slip of Punjab & Sind bank, blood stained clothes at the sole instance of accused Abhimanyu. Testimony of PW15 also corroborates the version of other PWs concerning recovery of bag at joint instance from the place of murder. I hasten to add that this circumstance is not being used by me as a circumstance at all for coming to the conclusion.

97. PW16 ASI Bhoop Singh is the another material recovery witness 59 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar examined by the prosecution. This witness has categorically testified about the manner in which the case of blind murder was solved. This witness has testified that telephone were made to various persons whose name were mentioned in the diary which was found lying near the deceased. He has testified about calling of Anil. He has also testified that Anil (PW3) came to the spot of murder along with his brother Sunil (PW

2). This witness has testified about visit to the house of accused Raj Kumar in the late night of 29.07.2007. This witness further testified that accused Raj Kumar was not found at the address of Jhilmil industrial area. The version of PW16 as discussed above is in complete consonance with the version of PW 15 and in consonance in material particulars with the version of other witnesses.

98. PW16 ASI Bhoop Singh has testified concerning recovery effected at the instance of the accused persons. This witness has testified on the similar lines of PW15 w.r.t. facts of date 29.7.2004. This witness has given the details which are in consonance with the case of prosecution and are corroborative of the versions of the other witnesses. This witness on the lines of PW15 makes a mention about visit to the 60 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar house of accused Raj Kumar on 29.7.2004 and absence of accused Raj Kumar there. This witness has testified that on 30.7.2004 he along with Shyam Babu, Anil and Sunil proceeded from PS to Mandoli. That they joined Radhy Shyam and reached at H. no. 173. He testified about apprehension of Raj Kumar. In his testimony dated 24.3.08 he testified that accused Raj Kumar got recovered a blood stained T shirt, Baniyan and one pant from his jhuggi. He also testified that accused Raj Kumar took out a sum of Rs. 4500/ from the box lying in his jhuggi. He also testified that two slip of Punjab and Sind Bank were found with the currency notes. This witness has also testified that accused Raj Kumar had taken them to place of occurrence and at his pointing out memo Ex.PW4/E was prepared. He has also testified that accused Raj Kumar got recovered a hammer from the place of occurrence, which was blood stained with a wooden handle. This witness testified further that accused took them to the house of accused Abhimabyu bearing no. 208, Dilshad Garden. He also testified about recovery of Rs. 3000/ at the instance of accused Abhimanyu. This witness further testified in consonance with the version of other PWs that accused Abhimanyu got recovered blood 61 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar stained pant and shirt from washing machine. This witness on the lines of other witnesses testified that accused got recovered the security guard dresses which he had purchased out of the proceeds of booty. He also testified about joint going of the accused to the place of occurrence, from the house of accused Abhimanyu and recovery of bag. The above referred version of PW 16 is in material consonance with the case of the prosecution put forth and I have no hesitation to observe that there is no other conclusion possible except the conclusion that (1) accused Raj Kumar got recovered blood stained clothes from his jhuggie, (2) Rs.4500/ from his jhuggi (3) two bank slips of Punjab & Sind bank from his jhuggi (4) bloodstained hammer from the place of occurrence.

99. As the articles were recovered very next day from the accused there is no hitch therefore to draw the inference that it was none else but the accused persons who were involved in the murder of deceased.

100. In the present case one of the reasons which is equally important to conclude against the accused is the FSL report. Prosecution in the testimony of its first witness proved the CFSL report as Ex.PW1/B. Version of PW1 had gone completely unchallenged and uncontroverted.

62 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar So there is no hitch in saying that report Ex.PW1/B (CFSL report) stands admitted by the accused. I am reproducing the FSL report for the sake of convenience and facilitation Ex.PW1/B is as follows which has been given by Ms. G. Bhattacharya on 09.11.04.

Sr. No. Exhibit No. Description of Exhibit(s) Result(s) ________________________________________________________________________

1. Exhibit 1: Earth bearing dark brown stains Positive for blood tests Earth __________________________________________________________________________________

2. Exhibit2: Earth bearing dark brown stains Positive for blood tests Earth __________________________________________________________________________________

3. The packet marked '3' contained one full pant, one shirt and one banian marked 3 (A) to 3 (C) respectively in this office.


Exhibit3(A)                      Full pant bearing reddish brown stains                  Positive for blood tests
Full pant                         at places
Exhibit3 (B):          Shirt bearing small areas of reddish brown stains       do
Shirt
Exhibit3 (C):          Banian bearing small areas of reddish brown stains    do
Banian

__________________________________________________________________________________

4. The packet marked '4' contained one full pant and one shirt marked 4 (A) and 4 (B) respectively in this office.

__________________________________________________________________________________ Exhibit4 (A): Full pant bearing very small areas of reddish brown do Full pant stains.

__________________________________________________________________________________ Exhibit4(B): Full shirt bearing small areas of reddish brown do Full shirt stains.

__________________________________________________________________________________

5. Exhibit5: Hammer bearing reddish brown rust like substances. do Hammer 63 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

6. Exhibit6: Bag bearing small areas of reddish brown stains. do Bag __________________________________________________________________________________

7. The packet marked '7' contained one full shirt, full pant, underwear and pair of shoes marked 7(A) to 7 (D) respectively in this office.

__________________________________________________________________________________ Exhibit7(A) Full shirt bearing large areas of reddish brown stains. do Full shirt __________________________________________________________________________________ Exhibit7(B) Full pant with black belt bearing reddish brown stains do Full pant at places.

__________________________________________________________________________________ Exhibit7(C) Underwear bearing very small areas of reddish brown do Underwear stains.

__________________________________________________________________________________ Exhibit7(D): Pair of shoes bearing small areas of brownish stains. do Pair of shoes __________________________________________________________________________________

8. Exhibit8 :

Blood Sample Gauze swab bearing reddish brown stains do practically all over __________________________________________________________________________________ Sr.no. Description of Pertaining to Stain/Fluid/Ma Test Results for Remarks Exhibit (s) terial present origin Group on exhibit positive for

1. Exhibit 1 Spot of murder Blood Human Group Test Inconclusive Earth

2. Exhibit 2 spot of murder Blood Human Group Test Inconclusive Earth

3. Exhibit Raj Kumar Blood Human Group Test 3(A) Inconclusive Full Pant cuttings

4. Exhibit3 Raj Kumar Blood Human B (B) Shirt cuttings 64 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Sr.no. Description of Pertaining to Stain/Fluid/Ma Test Results for Remarks Exhibit (s) terial present origin Group on exhibit positive for

5. Exhibit3 Raj Kumar Blood Human Group Test (C) Inconclusive Banian cuttings

6. Exhibit Abhimanyu Blood Human B 4(A) Full Pant cutting

7. Exhibit4 Abhimanyu Blood Human B (B) Full Shirt cuttings

8. Exhibit 5 Raj Kumar Blood Human Group Test Inconclusive Swab (Hammer)

9. Exhibit 6 deceased Blood Human Group Test Inconclusive Gauze swab (bag) 10 Exhibit 7 deceased Blood Human B (A) Full Shirt cuttings

11. Exhibit 7 deceased Blood Human B (B) Full Pant cuttings

12. Exhibit 7 deceased Blood Human B (C) Underwear cuttings 65 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar Sr.no. Description of Pertaining to Stain/Fluid/Ma Test Results for Remarks Exhibit (s) terial present origin Group on exhibit positive for

13. Exhibit 7 deceased Blood Human Group Test (D) Inconclusive Gauze swab (Pair of shoes)

14. Exhibit 8 deceased Blood Human B Gauze swab (Blood sample)

101. The CFSL report has been exhibited as Ex.PW1/B as collectively. Later on the same were exhibited as Ex.PW15/G and Ex.PW15/H. The report Ex.PW15/G shows that Ex.1 to Ex.8 were all positive for human blood. I deem it pertinent to mention that testimony of PW15 concerning Ex. PW15G and Ex.PW15/H has gone unchallenged and uncontroverted. The report makes a mention that Phenolphthalein test (a white or pale yellow crystalline powder that is used in making dyes and as an acid base indicator and laxaline) and Takayama test were conducted. It also makes a mention that separate report from serological unit regarding origin and grouping of blood shall follow. The report of serological unit has been exhibited as Ex.PW15/H. 66 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

102. After going through the records of the case it is inferable that Ex.

1 and 2 are blood stained earth and earth control. Ex.3A to 3C are the full pant, shirt and banian of accused Raj Kumar. Ex.4A and 4B are the full pant and shirt belonging to accused Abhimanyu since dead (this accused died in jail on 24.11.04 as is so mentioned in the order sheet dated 15.12.04. A report from Jail Superintendent, Central Jail no. 3, Tihar was called in this regard and in view of the report proceedings abated against accused Abhimanyu vide orders dated 15.12.04.) Ex. 5 is the hammer got recovered at the instance of accused Raj Kumar. Ex.6 is the bag of the deceased. Ex.7A to 7D are full shirt, full pant, underwear and shoes of the deceased. Ex.8 is the gauze swab of deceased.

103. FSL report goes to show that blood group B was found on Ex.3B (shirt of accused), Ex. 4A, Ex.4B (clothes of accused Abhimanyu). The group of the blood of deceased is 'B'.

104. These circumstances in CFSL reports are very very strong circumstances which connect the accused with the commission of the offence. No explanation has come from the side of the accused with respect to the existence of 'B' group blood and an adverse inference has 67 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar to be drawn against the accused to the effect that blood found on his clothes was that of the deceased. Natural corollary is that accused had murdered the deceased. Presumption is drawable without any hitch for the reason that clothes were recovered on the very next day. Presence of human blood on all other exhibits vouches about the hypothesis of accused being guilty.

105. PW1 Inspector Vinod Kumar has proved that he had got the details of telephone number 9810585821 belonging to the deceased through HC Amrish. He has also testified about collection of statement of account no. 4885 vide Ex.PW1/A. He has also testified about CFSL report Ex.PW1/B. Version of PW1 in this regard has gone unchallenged and uncontroverted. Cross examination of this witness was confined to the place of occurrence. From the telephone call details mark 'X' version of PW3 gets assurance as it goes to show the calling having taken place between accused persons and deceased. Mark X goes to show that telephone calls have been made on 9810585821 to 9868107199 and 9810585821 to 22137946, 2397589. Version of PW1 concerning bank slips, CFSL report, having gone unchallenged shall have to be deemed to 68 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar be admitted on the part of the accused. Argument of Sh. S.K. Ahluwalia concerning non supporting of case of prosecution by PCO owner is of no help as I have no hitch to observe that he has been won over.

106. Another circumstance which is very strong against the accused is that version of Pws concerning participation of Shyam Babu who is none else but brother of accused Raj Kumar in the recovery and apprehension of the accused persons has gone unchallenged and uncontroverted. Despite this accused has not examined this witness in defence. An adverse inference has to be drawn against the accused qua the same. Similarly adverse inference has to be drawn against the accused concerning non examination of other family members in defence in view of the allegation of the accused that IO of the case had ransacked his jhuggie and taken away Rs.21,000/. I have no hesitation to observe that accused has not done so intentionally as he was fearful that in cross examination his witnesses would have been exposed.

107. Another circumstance which goes against the accused are the answers given by accused in the statement u/s 313 Cr PC. Accused has given incorrect answers knowingly concerning question no.1, 2 and 15 in 69 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar particular and this is a circumstance which is lending assurance to the conclusion of mine arrived above. Answers to question no. 17, 27 go to show that defences taken by the accused are self contradictory. On the one hand he has admitted his arrest whereas on the other hand he is challenging his presence at the place of occurrence. I deem it expedient to mention that in answer to question no. 34 plea of no knowledge was taken and despite this fact objection about non proving of CFSL report was taken during arguments and orders had to be passed for recalling of PW G. Bhattacharya despite the fact that during cross examination no challenge was made for exhibition of CFSL report as Ex.PW1/B, 15/G and 15/H. It is a different matter that orders for recall were passed in order to prevent the accused to raise technical objections.

108. Injuries sustained by the deceased are in consonance with the manner which has been disclosed by the accused persons in their disclosure statement. Autopsy surgeon vide Ex.PW5/B has given his opinion that the injury no. 1 to 5 mentioned in postmortem report no. 1232 dated 30.07.2004 on the body of Sanjay Kumar are possible by the hammer. Hammer was duly sealed when it was sent to the autopsy 70 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar surgeon as is evident from the report Ex.PW5/B. The deceased had sustained five injuries as per postmortem report in the shape of lacerated wounds and diffuse reddish brown bruising. Going of injuries, in consonance with the medical records, gives another guarantee about the involvement of the accused persons in the commission of offence.

109. Sustainment of injuries by the accused as is evident from the MLC of the accused vide which accused Raj Kumar has been opined to have slight swelling on his right forearm goes in consonance with the aspect that active role in the murder was played by accused Raj Kumar. Non explanation on the part of the accused about simple injury having been sustained by him goes against the accused and I have no hesitation in using this circumstance as another piece of evidence for coming to the conclusion about guilt of the accused persons.

110. Slip Ex.PW15/C contains the address of Abhimanyu Pradhan along with phone numbers as well as the writing to the effect that he was a dak ticket agent. PW15 has testified that one slip written 'Hanuman Mandir' was found in the diary of the deceased in which name and address of accused Abhimanyu was written. Accused Abhimanyu was 71 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar called at the spot on 29.7.04 and he failed to identify the dead body. In my considered view he intentionally did not identify the dead body and had to be discharged at that point of time. Thus Ex.PW15/C provides another link in the chain of circumstantial evidence which reinforces the conclusion of guilt of the accused persons.

111. In view of the above going discussion the only one and one conclusion is possible and the same is about the culpability of the accused.

112. Coming to the arguments of Sh. S.K. Ahluwalia. I deem it expedient to mention that in order to satisfy my conscience, I have considered not only the arguments of Sh. S.K Ahluwalia but have also considered the discrepancies in cross examination which were not even pointed out by the defence.

113. No doubt I have found that testimony of PW2 and 3 are at variance concerning visit of PW2 to the place of occurrence on 29.7.04; PW15 and PW16 have testified that accused was not taken to DCP office for preparation of dossier whereas DW1 and DW2 have categorically about taking of the accused persons to the DCP office for 72 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar the purpose of preparation of dossier; there are some contradictions in the testimonies of PWs w.r.t source of light at the place of recovery of dead body; passing of trains and accompanying of PW2 of the police party at the time of recovery and PW15 has testified in contradiction with record of the case that he had not contacted wife of the deceased. However the question arises as to whether the accused should get the benefit of doubt on account of these defects in the case of the prosecution or not. It was this reason due to which I had given in detail the legal position, crux of which is that each case has to be decided on its own peculiar facts and circumstances and a conclusion in each case has to be drawn as to whether the contradictions brought on record in the testimonies of the Pws, by the defence can be said to be material contradictions or immaterial contradictions.

114. In the present case, I am of the considered view that the abovementioned contradictions are not the material contradictions going to the root of the case but all the contradictions are such which have surfaced on record on account of lapse of time and on account of nature of witnesses produced by the prosecution.

73 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

115. PW2 is a witness who is of vacillating nature and his testimony is partly reliable and partly unreliable. His version about identification of the dead body on 29.7.04 is reliable whereas his version concerning his non visit to the spot on 29.7.04 and telling to him by his brother about recovery is not reliable. This I am saying for the reason that there is other impeecable evidence on record connecting the accused with the commission of offence. PW2 is a witness of forgetful nature and due to the same, he has forgotten the relevant details. This witness was not much interactive with deceased and for this reason also has not given the correct details. The reason for observing this is that he testified that he was not aware as to when the telephone call at his house was received. In the very next line he stated that there was no telephone installed at his house. He was not remembering any of the phone numbers. He testified (quote) "we came back at 8.30, 9.30 or 10.00 pm" This shows the forgetful nature of this PW. However, this sentence goes to show the visit of this witness to the place of occurrence on 29.07.04 along with his brother Anil. PW2 testified that his brother Anil on 29.07.04 had gone to PS after coming back to house. By this he means that he and Anil had 74 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar been to the spot and had come back on 29.07.04. This also means that thereafter Anil alone had been to PS.

116. A lot of arguments were advanced concerning the testification (quote) "Anil had told me that person involved in this case have been recovered and bag and cash along with mobile phone had been recovered". No doubt, this contradiction has come vis a vis testimony of PW2 and PW3. However this contradiction is of no help as PW3 was the best person to clarify about the same. PW3 should have been confronted with the version of PW2 as discussed above and only then defence could have taken benefit of the above mentioned contradiction. As it has not been so done, defence cannot be given any benefit and assailment of the case of the prosecution on this aspect is disallowed.

117. There is another reason to disallow the arguments of Ld defence counsel in this regard and the same is that there is other independent evidence on record connecting the accused with the commission of offence.

118. Assailment of the case of the prosecution on the ground that accused was not present in the recovery and was at DCP office for 75 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar preparation of dossier is of no help to the accused as the same is not a material irregularity and can be said to be a discrepancy of minor nature at the maximum. DCP office, place of recovery, place of murder, police station, residence of the accused Raj Kumar and residence of accused Abhimanyu etc. were in the near vicinity. Accused could have been easily taken to DCP office in between and this aspect not being much material, PW15 and PW16 forgot about the same and deposed to the affect that accused was not taken to DCP office. However, the fact remains that accused was in the custody of the police. This argument also does not remain tenable when it is viewed in the light of the fact that accused was arrested as per arrest memo at about 4.00 pm. Accused was medically examined at about 8.30 pm. Preparation of dossier does not take much time. In view of the fact that witnesses had come to depose after a long lapse of time, this discrepancy which is negligible surfaced on record. So no benefit can be given to the accused on this aspect.

119. There is another aspect of the matter, possibility of which cannot be ruled out and that is the argument of Ld. PP that PW15 and 16 in order to favor the accused, in order to have a favorable result in inquiry, 76 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar agreed that they will depose about non taking of the accused to DCP office. This inference so argued by Ld PP is drawable for another reason which is born out from the records of the case and the same is testification of PW15 in his cross examination w.r.t case diaries. A complaint was lodged against the IO of the case on 05.8.04 by the mother of the accused wherein she alleged that a sum of Rs.21,000/ was looted by Addl. SHO PS Vivek Vihar and his team when they came in the night at the jhuggi located at Jhilmil industrial area and lifted Shyam Babu and Ram Babu. I have no hesitation in observing that this complaint was an after thought as it was got typed on 05.08.04.

120. Another reason to discard the argument concerning dossier is that in the first bail application moved on 01.11.04 by Sh. S.K. Ahluwalia no mention was made about the accused being at DCP office on 30.07.04 at 5.30 pm which would have been the case had the agreement between police officials and the accused as referred above would not have taken place.

121. Another reason and most important to discard this argument which is independent of above is that had the defence not been after 77 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar thought, it would have been put to PW3 and 4. I have gone through the entire testimony of PW3 and 4 and have found that no question was asked from them about the accused being taken to DCP office.

122. Argument of Sh. S.K Ahluwalia that PW7 has admitted that no item was found within an area of 100 yds. of the dead body, goes to show that hammer was planted on the accused, is not tenable as perusal of the records of the case reveal that on 29.07.04 it was night time and the area searched by crime team was bushy. Moreover, location of hammer was in the exclusive knowledge of accused. So the argument is rejected.

123. Argument that PW2 Sh. Sunil Kumar has not testified about going to the spot as well as at the jhuggi of accused Raj Kumar whereas PW16 ASI Bhoop Singh testifies about Sunil being in the raiding party (examination in chief dated 12.2.08 last page) is of no help to the Ld defence counsel as I have already observed that PW2 is a witness who is not reliable and is of vacillating nature. Moreover, I am of the considered view that PW16 has wrongly mentioned that Sunil was with him at the time when they visited Mandoli. No other witness has th mentioned about visit of Sunil to the Police station on 30 of July, 2004 78 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar except PW16 and I have no hesitation to observe that this embellishment came in the testimony of PW16 on account of lapse of time and mixing up of facts of other cases, he being a police official.

124. The argument that PW3 Sh. Anil Kumar has testified about one slip of Punjab & Sind Bank having been recovered from the house of accused Raju whereas other witnesses have stated about two slips having been recovered, is of no help as in my considered view PW3 mentioned inadvertently about one slip whereas the slips were two. This ambiguity is cleared if the version of this witness is perused carefully on the next page wherein he mentions about two slips dated 29.03.04 and 23.03.04. Corresponding entries of these slips are there in the account of the deceased. So there is no hitch in observing that this was an inadvertent mistake on the part of the witness for which accused cannot gain anything.

125. Argument that signatures of PW3 Anil Kumar are not there on the slips whereas he has testified that he had signed on the seizure memo of currency notes and bloodstained clothes is of no help as this is not a material discrepancy going to the root of the case. It was required on the 79 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar part of the defence to put this question to PW15 and as it has not been so done, no benefit can accrue to accused.

126. Argument that PW3 should not be believed as according to him accused persons were arrested on 30.07.2004 despite the fact that PW2 has testified that name of the accused persons had become known on 29.7.2004 itself, is of no help to the accused as this discrepancy has crept in on account of the lapse of time and on account of the fact that brother of the witnesses was murdered. I have already observed that it is not possible to forecast about the nature of reaction of a witness in the case of an accident / murder. Hon'ble Supreme Court has mandated that witnesses react differently to the same situations as faculties of observation, perception, reproduction, recollection of different human beings are different. This discrepancy came on record for the reason that PW3 was suspecting the accused Raj Kumar and he might have consoled his younger brother PW2 in this regard. The fact remains that nothing material comes out of it. Argument that PW3 has admitted that till 12.00 mid night police did not seize any article from the spot is not of any help to the accused as variance of one day in the testimonies is of no 80 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar help to the accused. Similarly argument that bag and hammer were planted upon the accused persons as otherwise the same would have been found at the time of first visit itself, is not tenable for the reason that on the first day it had become night and it was difficult to locate the hammer and bag without the assistance of the accused persons. Similarly the argument that PW3 has testified that he had signed his statement in the PS which is in contrast with the case of the prosecution is of no help as the same is not a material discrepancy.

127. The argument that PW3 on 31.10.06 had testified that he had signed on the seizure memo of currency notes and of bloodstained clothes whereas on 12.1.2007 this witness had to admit that the same were not bearing his signatures is again not a material contradiction going to the root of the case in view of nature of objects recovered.

128. The argument that accused have been falsely implicated is not tenable. Argument that IO did not conduct the investigation fairly and the accused should be awarded benefit of doubt for unfair investigation is not tenable for the reason that inadvertance / inaction on the part of the IO cannot be a ground which can be allowed to stand in the way of 81 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar administration of justice.

129. Argument concerning withdrawal of one packet and signatures on the wad of the bank officials is being mentioned for the sake of mentioning for the reason that Sh. S.K. Ahluwalia has not pressed this argument.

130. The argument that PW6 Mohd Shamim has not supported the case of prosecution is of no help as in the absence of the testimony of PW6 as well case of the prosecution stands proved. Moreover PW1 by way of mark X has proved the making of telephone by and between the accused and the deceased. This factor being in favor of the prosecution non supporting of PW6 is of no consequence.

131. Argument that conduct of PW3 concerning non lodging of report is unnatural is not tenable as there is nothing unnatural in the same. The argument that contradictory versions have come on record concerning diary being found on the dead body as per PW15 and as per PW16 it being found lying near the dead body is of no help as it does not make any difference if the diary was found on the dead body or near the dead body. The material aspect is the availability of diary through which identity 82 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar of deadbody could be affixed.

132. Coming to the judgments placed reliance upon by Ld defence counsel I deem it expedient to observe that cases placed reliance upon by ld defence counsel instead of helping the accused help the prosecution. Fact of the cases relied upon are different and distinguishable. AIR 1956 SC 51 titled as Prabhu Babaji Navle is of no help as in the present case chemical examiner has performed his duty very well as per observation of Hon'ble Supreme Court in the last line of Para 19. Similarly reliance on AIR 1956 SC 54 is of no help as recovery in this case had taken place after 13 days whereas in the present case it has taken place on the very next day. The authority instead of helping the accused, helps the case of the prosecution. Similarly State Vs Shnkar Prasad and Anr. AIR 1952 Allahabad is of no help as the same is distinguishable. In this judgment it has been held that each case has to be decided on the basis of its peculiar facts. This judgment mandates the drawl of inference that presumption of involvement in case of recent recovery can be drawn. Similarly Dhikha Gober Vs Emperor is also of no help to the Ld defence counsel. Similarly the other judgments are not of 83 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar any help. I have carefully gone through all the judgments relied upon by Ld defence counsel and have found that all the judgments are distinguishable on facts. With due deference to their Lordships, the judgments are held to be not applicable to the facts of the present case. Reference to citations is not being made as the same will make the judgment more lengthy.

133. Argument of Sh. S.K. Ahluwalia which he took at the time of final argument despite the fact that no objection was taken by him at the first available opportunity on 14.3.2005 when PW1 deposed in this regard is not tenable in view of the mandate of D.B. judgment of Hon'ble Delhi High Court titled as Amarjeet Singh Anr. Vs State reported in 1995 Cr LJ 1623 wherein it has been held that if the CFSL report is admitted in evidence without objection regarding its mode of proof, same cannot be objected to at any later stage of case.

134. There is another reason to meet this argument. Despite the legal position exposited in 1995 Cr LJ 1623, on behalf of the prosecution an application was moved for calling of FSL expert Ms. G. Bhattacharya which was allowed at the cost of delayed disposal and despite the fact 84 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar that this case was in the list of oldest 20 cases of the court. Smt. G. Bhattacharya could not appear due to her illness and Director had deputed Sh. M.K. Majumdar Senior Scientific Assistant Biology to prove her report. This witness testified about illness of Dr. G. Bhattacharya. This witness in the last line of examination in chief testified that he was regularly analyzing the matters for the last 34 years at CFSL Kolkata. He was well conversant with the handwriting and signatures of not only Ms. G. Bhattacharya but also conversant about the previous and present officials including Director. Calling of Ms. G. Bhattacharya would have led to inordinate delay, unnecessary expenses and was not going to serve any further purpose and for that reason matter was stopped at this. In view of this conclusion I obtain support from section 293 Cr.P.C, settled legal position and provisions of Indian Evidence Act. Ld. Defence counsel except asking the question that report was not prepared in his presence and hence he was not having any personal knowledge of the case, has not cross examined this witness concerning the contents of the report. He has also not questioned his competency. I deem it pertinent to place on record that this witness was an expert in examination as he was having 85 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar an experience of 34 years in the field. In my considered view Ld defence counsel had not asked any question from this witness for the simple reason that the same would have gone against the accused. So the argument concerning challenge to FSL report is not tenable either way and is hence rejected.

135. All the arguments advanced by Mr. S.K. Ahluwalia stand addressed. Arguments left if any or probable arguments are tenable in view of the abovegoing discussion and are hence rejected.

136. In view of the aforegoing discussion, accused Raj Kumar is convicted for offence punishable u/s 302 IPC. Let he be heard on point of sentence.

Announced in open court                                                       (Dilbag Singh)
  dated: 15.01.2010                                                Addl. Sessions Judge01(E):
                                                                   Karkardooma Courts, Delhi. 
                                                     86                    State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar

      IN THE COURT OF SH. DILBAG SINGH: ADDITIONAL    SESSIONS 
            JUDGE 01 (E)/ KARKARDOOMA COURTS: DELHI.

Sessions Case No.52/09

State v/s (1) Raj Kumar @ Raju s/o Sh. Mukandi Lal R/o A173, Gali no.5, Bank Colony Road, Harijan Basti, Nand Nagri, Delhi. FIR NO.314/04 PS Vivek Vihar U/s 302 IPC.

ORDER ON SENTENCE

1. I have heard Ld. Counsel Sh. S.K.Ahluwalia for convict on the point of sentence. Ld. PP has also been heard.

2. Ld counsel for convict stated that convict is young and having age of 28 years and sole bread earner of the family. That convict is married and having a large family to support consisting of his old aged mother, wife and two children. That convict was doing the work at cycle stand and was earning Rs.4000/ per month. That convict is very poor fellow. That he has suffered incarceration for a period of about four years. That he has never misused the liberty of bail. It is urged by ld counsel that convict is not involved in any case except this case. Citing all this, ld counsel requested for leniency. On the other hand, Ld. Public Prosecutor has submitted that offence committed by the convict is quite serious in nature and no leniency should be shown in the matter.

3. Section 302 IPC prescribes that who ever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. It has well been established by a catena of authorities that life imprisonment for an offence of 87 State Vs Raj Kumar, FIR no. 314/04, PS Vivek Vihar murder is a general rule while death sentence is an exception. Though there is no bar in awarding death sentence also but same can be imposed in a 'rarest of rare case'. This proposition is also reiterated in case titled as State Vs Atbir & Ors. 2006 1 AD (Delhi) 665.

4. Certain guidelines have been given by the apex court to determine the rarest of rare case where the extreme penalty of death can be imposed. Lodestar in this regard are the cases titled as Machi Singh Vs State of Punjab (1983)4 SCC 470 as well as a case Bachan Singh Vs State of Punjab AIR 1980 SC 898. I have gone through the findings of the apex court given in both of these cases. Shorn of unnecessary details I do not find case in hand in the category of such rarest of rare case. Mitigating circumstances in this case are more than aggravating circumstances.

5. Keeping in view the facts of this case, circumstances of convict as disclosed by ld counsel, I sentence the convict with imprisonment for life and also fine of Rs.10,000/. In default of payment of fine, the convict will be liable to further undergo RI for a period of three months.

6. Benefit of set off under section 428 Cr.P.C be given to the convict. A copy of this order as well as of judgment be given to the convict free of cost.

Announced in open court                                                           (Dilbag Singh)
  dated: 21.01.2010                                                 Addl. Sessions Judge01(E):
                                                                       Karkardooma Courts, Delhi.

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1 State vs Raj Kumar, Fir No. 314/04, Ps Vivek Vihar on 21 January, 2010