Delhi District Court
State vs Montu Yadav on 20 December, 2010
1
IN THE COURT OF S.K. SARVARIA DISTRICT JUDGEVIII &
INCHARGE ADDITIONAL SESSIONS JUDGE:
ROHINI COURTS DELHI
S.C No.126/2010
State Vs Montu Yadav
S/o Sh. Bankey Lal
R/o Village Devkali
P.S Manpur, District Nalanda
Bihar.
Pappu Yadav (Proclaimed Offender)
S/o Sh. Bankey Lal
R/o Village Devkali
P.S Manpur, District Nalanda
Bihar.
Vijay Yadav (Proclaimed Offender)
S/o Sh. Suba Lal
R/o Village Devkali
P.S Manpur, District Nalanda
Bihar.
Shakki Yadav (Proclaimed Offender)
S/o Sh. Ganni Yadav
R/o Village Devkali
P.S Manpur, District Nalanda
Bihar.
State Vs. Montu Yadav
2
FIR No. 70/2000
Police Station Uttam Nagar
Under Sections 302/201/34 IPC.
Date of Institution 02.11.2000
Date when arguments 20.12.2010
were heard
Date of Judgment: 20.12.2010
JUDGMENT
1. The SHO of P.S: Uttam Nagar has challaned the accused persons who were proclaimed offenders for the offences under Sections 302/201/34 IPC. Thereafter, one of the accused persons Montu Yadav was arrested and supplementary challan was filed against him. The Ld Metropolitan Magistrate after supplying the copies of documents of the prosecution case to the accused by complying with provisions of Section 207 Cr.P.C has committed the case and subsequently supplementary challan to the court of Sessions as provided under Section 209 Cr.P.C. BRIEF FACTS OF THE CASE
2. The prosecution case in brief is that on 11.10.1999, on receipt of DD No.10, P.P Matiyala SI Raj Kumar along with HC Rohtash State Vs. Montu Yadav 3 Kumar and other staff went to plot belonging to Ranbir Singh S/o Jagbir Singh R/o Village Matiyala in front of Sector3. Inspector Sukhbir Singh the then SHO P.S Uttam Nagar also reached there with the staff. In the two rooms constructed in the said house there was foul smell. On opening the door, considerable used polythene bags were found there. Under the machine installed in the room, one dead body in rotten condition was present. On examination of the decomposed body, it could not be ascertained whether there was injury on it or not. The dead body was photographed, body fluid, floor with body fluid, earth control were seized in pulandas.
Ranbir Singh present at the spot informed that about 1 ½ months ago, he had let out the premises to one Pappu Yadav on a monthly rent of Rs 4,000/. He used to do the work of melting the polythene bags to convert it into polythene circles. The address of Pappu Yadav from his known person Suraj Gupta R/o village Matiarao Govind Police Station Padwana, District Kushi Nagar, U.P came to the knowledge of police which is Village Devkali Police Station Asthana, District Nalanda, Bihar.
On the dead body inquest proceedings under Section 174 Cr.P.C were conducted. HC Satvir Singh along with staff was sent to the address of Pappu Yadav where the name of deceased person surfaced as Ram Swaroop @ Modi Yadav S/o Badri Yadav R/o Village Devkali State Vs. Montu Yadav 4 Police Station Asthana, District Nalanda, Bihar. The statement of Chandu Yadav brother of the deceased was obtained who stated that two months ago his brother Ram Swaroop @ Modi Yadav and his brother in law Vijay S/o Krishan Yadav went from the native place by stating that they were going to join duties in the factory of Pappu Yadav in New Delhi. After 10 days, the brother in law Vijay returned from Delhi and informed that Pappu Yadav has installed the factory of melting polythene bags to convert it into polythene balls/circles. He got electric shock in the factory so he returned from Delhi. In the factory Ram Swaroop @ Modi Yadav, Pappu Yadav, Montu and Shakki were working. After 15 days Pappu Yadav, Vijay, Montu and Shakki reached the village so he (complainant Chandu Yadav) asked from Pappu about Modi and he told that Modi has worked with him for some days and he did not know his whereabouts after that. The complainant Chandu Yadav identified the photograph of the dead body of his brother Ram Swaroop from the fingers of his feet and Janeu .
During investigation, the site plan was prepared by investigating officer. The four accused persons Pappu Yadav, Montu Yadav, Vijay Yadav and Shakki Yadav could not be traced despite efforts. The proceedings under Section 82/83 Cr.P.C was conducted against them and they were declared proclaimed offenders. The challan was filed against the accused persons who were the proclaimed offenders for State Vs. Montu Yadav 5 recording evidence under Section 299 Cr.P.C.
Thereafter, accused Montu Yadav S/o Bankey Lal was arrested. His police custody remand was taken who made disclosure statement and pointed out the place of incident. The other accused persons could not traced and arrested. So, only accused Montu Yadav was challaned to face trial and proceedings under Section 299 Cr.P.C was requested in the challan against the other accused persons. CHARGE AND PLEA OF ACCUSED:
3. The prima facie case for the offences under Sections 302/201/34 IPC was found to be made out against the accused Montu Yadav, so he was charged accordingly on 06/06/2009 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. In the initial challan filed against the accused persons, the accused persons were proclaimed offenders so the evidence was recorded under Section 299 Cr.P.C. In support of its case the prosecution had examined 16 witnesses in all, i.e PW1 Dr. K. Goel, PW2 Constable Raj Kumar, PW3 Tirath Raj Singh, PW4 Ramesh Chand, PW5 HC Rajbir Singh, PW6 HC Satbir Singh, PW7 Constable Brahm Swaroop, PW8 HC Kuldeep Singh, PW9 Ranbir Singh, PW10 Constable Mehtab State Vs. Montu Yadav 6 Singh, PW11 Rakesh Kumar, PW12 Ghanshyam Paswan, PW13 SI Ram Kumar, PW14 SI A.K. Singh, PW15 Chando Yadav and PW16 Jai Mala.
5. After the arrest of accused Montu Yadav and committal of supplementary challan the prosecution has examined 19 witnesses in all in support of its case. To have access to the prosecution evidence, it would be appropriate to give a short resume of the statement of prosecution witnesses recorded in the court.
6. PW1 is HC Dhanvir. He stated that on 10.08.2008, on receiving secret information he reached at New Delhi Railway Station and on the pointing of secret informer, caught accused Montu Yadav under Section 41.1 Cr.P.C, who was declared proclaimed offender by the court on 02.11.2000. The accused was arrested vide arrest memo and personal search memos Ex PW 1/B and Ex PW 1/A respectively. He prepared Kalandara which is proved by him as Ex PW 1/C. The arrival entry was made in the DD register at Special Staff, Rohini, Outer District which is proved as Ex PW 1/D. Thereafter, he informed about the arrest of accused to HC Ashok Kumar and the accused was produced before the duty Magistrate at Rohini and sent to judicial custody.
7. PW2 is Ranvir Singh. He stated that he has already been examined in the court on 02.04.2003 as PW9. In that statement, he has stated that he is having a plot of 2500 sq yds at Sehyog Vihar Morr on Matiala Road opposite Gupta Hotel and had constructed a room in that plot. In the year 1999, he had given that room on rent to one Pappu yadav with the introduction of Rakesh Kumar resident of his village. Pappu Yadav was resident of Bihar. He had given the plot along with room on rent to Pappu Yadav on monthly rent of Rs 4000/. Pappu Yadav used to reside in that room. On 11.10.1999, his cousin brother Ashok informed him on telephone that foul smell was coming from the room. He reached there and found that the room was locked. In that room, Pappu Yadav installed a machine for doing some plastic work. He made telephone call to the Police Control Room. Police came there and the lock of that room was broke open and a dead body was found in that room. He had given the room to said Pappu Yadav about 1 ½ months prior to that date. Police recorded his statement which is proved as Ex PW 9/A.
8. PW3 is Chandu Yadav. He stated that he has already been examined in the court on 21.10.2005 as PW15. In that statement he has stated that he is an agriculturist. His brother Ram Saroop used to work in a factory at Palam, Delhi. Vijay, Montu and Shakki also used to work in that factory with his brother. About two months after his brother had left State Vs. Montu Yadav 8 his village, he came to know that he had been killed by Pappu, Montu, Vijay and Shakki. Some police officers from Delhi had come to his village and had shown the photograph of the dead body. He and the wife of his brother Ram Saroop identified the body from the physical appearance to be of his brother. This witness has further stated that the police had recorded his statement which is proved as Ex PW 6/A. He had also identified the dead body on the basis of Janeu as was shown on the dead body in the photographs. Sala (brotherinlaw) of his brother Ram Saroop i.e Vijay S/o Kishan Yadav had also left their village along with Ram Saroop for working in the plastic factory of Pappu Yadav. About 15 days after his brother had left the village, Pappu, Montu, Shakki and Vijay had come to their village and on his asking, Pappu had told him that his brother had worked with him for a few days only and was working somewhere else. This witness has also identified the accused Montu Yadav present in the court and stated that accused is of his village and is his cousin brother from distant relations. There was no dispute between his family and family of accused on the point of Medho (boundary of fields). After putting leading questions to the witness by Ld Additional Public Prosecutor, he stated that the police had visited his village and made inquiries from him. This witness has denied to the other suggestions put by Ld Additional Public Prosecutor.
9. PW4 is Ramesh Chand. He stated that he has already been examined in the court on 27.02.2002 as PW4 wherein he has stated that he is running his dhaba at D91, Village Matiala Road near Sahyog Vihar for the last 78 years. There is a plot of Ranbir Singh R/o Matiala Village in front of his dhaba. Two rooms were constructed in that plot in the year 1999. One Pappu who was resident of Bihar occupied one of the rooms and started manufacturing golas (circles/balls) of plastic by melting plastic bags in a machine. Pappu had started this work about 1½ months prior to 11.10.99. That room was lying closed for 8/9 days and Pappu was not seen during that period. He (PW4) informed Ashok Sharma who was running a factory of dying near that plot. Ashok Sharma informed Ranbir Singh. He came there and informed the police on phone number 100. Thereafter he (PW4) went to Agarsen Hospital in Punjabi Bagh where his sister and brother in law were admitted. He returned in the evening at about 7.00 p.m and came to know that a dead body was recovered from that room. He went to the police station and made statement which is proved as Ex PW 4/A. His statement was also recorded by the police on 04.02.2000. He further stated that he can identify Pappu.
10. PW5 is Rakesh Kumar. He stated that he has already been examined in the court on 29.10.2004 as PW11 wherein he has stated that State Vs. Montu Yadav 10 about four years back, he had rented out his plot to Pappu Yadav, who was running a plastic panni godown there. About 6 months thereafter he came to know that a dead body had been recovered from the godown of Pappu Yadav. He was called in the Police Post Matiala where his statement was recorded by the police and the same is proved as Ex PW 11/A.
11. PW6 is Smt. Jai Mala. She stated that deceased Ram Swaroop @ Modi Yadav was her husband. He left the village along with one unknown person to Delhi in search of work. Prior to 23 months from the date when police reached in her village and showed the photographs to identify the dead body of her husband and she had identified the same from the photographs. She could not tell the date, month and year when police reached to her in her village. She also did not know with whom and where in Delhi, her husband was working and what happened with him in Delhi. She could not say by whom her husband was murdered. This witness identified the photograph Ex PW 6/A and stated that the said photograph is depicting the dead body of her husband and police had shown it when she had identified the dead body of her husband. She does not know the other facts of this case. PW6 further stated that accused Montu present in the court is the resident of their village and is earlier known to her being a covillager. As the State Vs. Montu Yadav 11 witness was resiling from her previous statement, she was cross examined by Ld Additional Public Prosecutor but she almost denied the suggestions put on behalf of State to her and was confronted with the statement Ex PW 6/B. This witness was earlier examined as PW16 in the evidence recorded under Section 299 Cr.P.C.
12. PW7 is Vijay Yadav. He stated that deceased Ram Swaroop @ Modi Yadav was his Jija and PW6 Jai Mala is his sister. His Jija had came to Delhi prior to 2 months since incident in search of work but he cannot say with whom he (Ram Swaroop) had come to Delhi. He could not say about the working place of his Jija at Delhi and also how many covillagers of his Jija were working in Delhi during those days. In the month of October 1999, police official of Police Station Uttam Nagar reached at the house of his sister and informed her about the murder of his Jija. He also reached there and came to know about the murder of his Jija in Delhi. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but he denied the suggestions put on behalf of State to him and was confronted with the statement which is proved as Ex PW 7/A.
13. PW8 is ASI Satbir Singh. He stated that on 26.10.1999 he was on duty at P.S Uttam Nagar and was directed by SI Ram Kumar to State Vs. Montu Yadav 12 go to Village Devkhuli, District Nalanda, Bihar for the purpose of identification of dead body along with three photographs of the present case which were depicting charred dead body. He along with other police officials reached the house of deceased namely Ram Swaroop @ Modi Yadav and had presented three photographs which are proved as Ex PW 6/A, Ex PW 8/A and Ex PW 8/B before the wife of deceased Jai Mala and one brother of deceased Chando Yadav, who had identified the dead body of deceased Ram Swaroop on seeing the photographs. He had also made inquries from them. The copy of Nakal Rapat as well as the arrival entry have been proved by this witness as Ex PW 8/C and Ex PW 8/D respectively. In the year 2000, he conducted proclamation and attachment proceedings against the accused persons namely Pappu Yadav, Vijay Yadav, Shakki Yadav and Montu Yadav. Thereafter, on arrival to Delhi, he handed over the photographs and relevant papers of this case to the concerned IO. This witness was earlier examined as PW6 in the evidence recorded on 16.08.2002 under Section 299 Cr.P.C.
14. PW9 is ASI Rajbeer Singh. He stated that on 04.02.2000, he was working as duty officer at P.S Uttam Nagar. He recorded FIR under Section 302/201 IPC which is proved as Ex PW 5/A and he made endorsement on the rukka which is proved by him as Ex PW 9/A. After registration of the case, the copy of FIR and rukka were handed over to State Vs. Montu Yadav 13 Inspector Sukhbir Singh/SHO, Uttam Nagar for further investigation. This witness was earlier examined as PW5 in the evidence recorded on 05.04.2002 under Section 299 Cr.P.C.
15. PW10 is Constable Raj Kumar. He stated that on 11.10.1999 he was working as DD writer at P.P Matiala of P.S Uttam Nagar. At about 4.05 p.m he received a message from PCR which was reduced into writing by him vide DD No. 10 which is proved as Ex PW 2/A and the same was handed over to SI Ram Kumar, ICPP for further proceedings. The original DD register was destroyed by the order of DCP West vide order no. 13441390/HAR/West Distt. Dated 25.07.2005 and copy of the same is proved by him as Ex PW 10/A. This witness was earlier examined as PW2 in the evidence recorded on 06.10.2001 under Section 299 Cr.P.C.
16. PW11 is HC Braham Swaroop. He stated that on 11.10.2009, he along with SI Ram Kumar reached at the spot i.e plot no. 91 of Ranvir Singh at Village Matiala and found one dead body in the room. In his presence, the IO lifted the dead body fluid stained floor and earth control which were kept in three separate parcels and sealed with the seal of RKM. The above said exhibits were taken into possession vide seizure memo Ex PW 7/A. Thereafter IO recorded his statement in State Vs. Montu Yadav 14 this regard. This witness was earlier examined as PW7 in the evidence recorded on 20.01.2003 under Section 299 Cr.P.C.
17. PW12 is Constable Dharam Das. He stated that on 21.08.2008, he was posted at P.S Uttam Nagar and had joined investigation of the present case with the IO SI Pawan Kumar. Accused Montu Yadav was interrogated during which he confessed that he along with his brother Pappu Yadav, Vijay Yadav and Shakki Yadav had committed the murder of Ram Swaroop @ Modi Yadav in the room of Raghubir Singh at Matiala Village. The accused Montu Yadav further disclosed that he pressed the body of deceased while committing the murder. IO recorded his disclosure statement which is proved as Ex PW 12/A. Thereafter the statement of this witness was recorded by the IO.
18. PW13 is Constable Anand Prakash who had joined the investigation of this case with SI Pawan Kumar on 20.08.2008. He proved the arrest memo of accused Montu Yadav as Ex PW 13/A, his disclosure statement as Ex PW 13/B and the pointing out memo as Ex PW 13/C. He stated that the accused was got medically examined and was put in PS Janakpuri, as there is no lock up at PS Uttam Nagar.
19. PW14 SI Ram Kumar has stated that on 11.10.1999 copy of State Vs. Montu Yadav 15 DD no. 10 which is Ex PW 2/A was assigned to him to take action in the matter. He along with HC Rohtas, Constable Rajinder and Constable Braham Saroop reached at godown of Ranbir at Palam Matiala Road and found smell coming from the locked room of the aforesaid godown. They entered inside the godown after removing lock of the godown, found one young male dead body under the machine where some old and new polythene bags of small and big size were lying. He informed the senior police officials. The dead body was taken out under the machine which was highly decomposed. He inspected the same and noticed one Janeu and undergarment over the dead body. He made efforts in connection of identification but in vain. Crime team reached at the spot and photographer took photograph of the dead body which are proved as Ex PW 8/A and Ex PW 8/B. He confronted with the statement of PW11 HC Braham Swaroop with regard to seizure memo Ex PW 7/A. This witness further stated that he completed inquest proceedings on 15.10.1999 while filling up inquest form which is proved by him as Ex PW 14/A, by recording brief facts of the case which is proved as Ex PW 14/B and by filling up request for postmortem which is proved as Ex PW 14/C. Autopsy was also conducted on the same day vide postmortem report Ex PW 1/A. Unknown dead body was cremated as abandoned by the police officials vide receipt which is proved as Ex PW 14/D. One sealed parcel containing teeth of the deceased in sealed condition was State Vs. Montu Yadav 16 delivered along with sample seal to him by the postmortem conducting doctor and he seized the same vide seizure memo Ex PW 14/E. The duty officer also seized Janeu and undergarment of the deceased vide seizure memo Ex PW 14/F. HC Satbir has recorded the statement of Chandi Yadav which is proved as Ex PW 6/A at his native village which was produced before him. This witness has also proved the statement of Ghan Shyam Paswan as Ex PW 14/G and that of Suraj Gupta as Ex PW 14/H. He also recorded the statement of Ranbir Singh which is proved as Ex PW 9/A, that of Ramesh Chand Gupta Ex PW 4/A and of Rakesh Kumar Ex PW 11/A. This witness was earlier examined as PW13 in the evidence recorded on 07.05.2005 under Section 299 Cr.P.C.
20. PW15 is SI Pawan Kumar. He stated that on 10.08.2008, DD No. 34 B which is proved as Ex PW 15/A was assigned to him by the MHCR to take action in the matter. On 18.10.2008 he moved application for production of the accused before the concerned court, as accused Montu Yadav had been sent to JC in Kalandra proceedings by the staff of special staff. Copy of the same is proved by him as Ex PW 15/B. He corroborated with the statement of PW13 Constable Anand Prakash regarding arrest and disclosure statement of accused Montu Yadav. This witness further stated that accused made further disclosure statement during interrogation which is proved as Ex PW 12/A. Nothing was State Vs. Montu Yadav 17 recovered in pursuance of disclosure statements of the accused. Thereafter, the accused was sent to judicial custody by producing before the concerned court. He recorded the statement of Constable Anand, Constable Dharam Das and HC Dhanvir. He also collected copy of Kalandara proceedings Ex PW 1/A to D and placed the same on the file.
21. PW16 is Ghanshyam Paswan. He stated that in the year 2000 or before, he used to work in the factory of his brother Raju situated at Village Matiala, Delhi. Pappu Yadav who was also a resident of Bihar used to run his factory in Pappan Kalan, Delhi. Pappu Yadav had run away from Delhi. Police officials often used to pick him (PW16) up and used to beat him to find out the whereabouts of Pappu Yadav. He does not know anything about the present case. The police had obtained his signatures on some documents. As the witness was resiling from his previous statement, he was crossexamined by Ld Additional Public Prosecutor but he denied the suggestions put on behalf of State to him and was confronted with the statement Ex PW 14/G. The statement of this witness recorded by the police under Section 161 Cr.P.C is proved as Ex PW 16/A but the witness denied having made the same. This witness was also examined in evidence under Section 299 Cr.P.C as PW12 on 02.04.2005.
22. PW17 is Dr. K. Goyal, CMO, BJRM hospital who conducted postmortem on the dead body of victim on 15.10.1999. He deposed that the clothes on the body were underwear only and one JANEU.
On external examination the soft tissues of face, upper side of neck, arms and forearms were eaten up by meggots. Any external antemortem injury was inconspicuous due to advanced stage of decomposition.
On internal examination of neck, there was sub cutaneous and platysmal bruising seen at places. The hyoid bone was found subluxated at left greater cornua and body and fracture of right greater cornua with mark bruising at fracture sites. The soft tissues of the neck were showing decomposition changes with bruising of deeper neck muscles.
OPINION: The cause of death was asphyxia consequent to pressure on the neck structures. Soft tissue bruising of neck and fracture of hyoid bone were antemortem in nature caused by pressure over neck structures. The mechanical pressure over neck was sufficient to cause death in ordinary course of nature. The time since death was about 10 days.
The two teeth of the deceased were sealed and handed over to the police with sample seal and clothes were handed over to the police in unsealed condition. His detailed postmortem report is proved as Ex State Vs. Montu Yadav 19 PW 17/A. This witness was earlier examined as PW1 on 04.08.2001 under Section 299 Cr.P.C.
23. PW18 is A.K. Singh. He stated that on 04.02.2000 he was posted as Incharge at P.P Matiala. On 11.02.2000 he along with other police officials went to village Devkali PS Manpur District Nalanda, Bihar in search of accused persons but in vain. Thereafter, they returned back to Delhi on 16.02.2000. He further stated that he made efforts at given addresses in search of accused persons Montu Yadav, Pappu Yadav, Shakki and Vijay Yadav. He met the wife of deceased namely Jaimala at her house in village Devkali and recorded statement of Vijay Yadav (brother of Jaimala) under Section 161 Cr.P.C . This witness was earlier examined as PW14 in the evidence recorded on 07.05.2005 under Section 299 Cr.P.C.
24. PW19 is Sukhbir Singh, ACP Prashant Vihar. He stated that he made endorsement on the rukka which is proved by him as Ex PW 19/A. On his request, copy of FIR of the present case was sent to Senior Police Officers as well as Ld M.M. On 04.02.2000 he along with police officials reached the spot and inspected the place of occurrence and got prepared unscaled site plan Ex PW 19/B. He also recorded statement of PWs namely Chando Yadav, Ranvir Singh, Ramesh Chand Gupta, State Vs. Montu Yadav 20 Ghanshyam Paswan, Rakesh Kumar etc. He searched for the accused persons in Delhi as well as outside Delhi but no clue had come forward. On 08.05.2000 place of occurrence was inspected by draftsman Tirath Ram Singh Sandhan Walia in his presence and prepared the scaled site plan which is proved as Ex PW 3/A. During the course of investigation, he collected the photographs Ex PW 8/A, B and Ex PW 6/A respectively from the concerned office. He also collected copies of relevant DD entries and proved the same as Ex PW 19/C to Ex PW 19/F respectively. He also proved the statement of PW Domango, Saleem Murdan, Riyazdin and also the report of HC Satvir Singh as Ex PW 19/G to J respectively. Thereafter, he prepared charge sheet against aforesaid four accused persons on completion of investigation. PLEA AND DEFENCE OF ACCUSED.
25. In the statement U/s 313 Cr.P.C the accused has either denied the prosecution case or has expressed his ignorance about the incriminating evidence emerging from prosecution case put to him by way of different questions. He has stated that he is innocent and has been falsely implicated in this case.
ARGUMENTS AND FINDINGS
26. I have heard Ld CPP for the State, Ld Amicus Curiae for State Vs. Montu Yadav 21 accused Montu Yadav and have gone through the record of the case and relevant provisions of law.
27. In this case, there is no direct evidence against either of the accused persons. There is no eye witness who has witnessed the commission of murder of victim Ram Swaroop Yadav @ Modi Yadav The case of the prosecution entirely rests on circumstantial evidence. In Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held as under:
" 29. It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. "
28. As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt. (See Dalpat Singh v. State of Rajasthan 2005 Cr LJ 749 (Raj) (DB)). The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the State Vs. Montu Yadav 22 cumulative effect of it has to be weighed. (See Dukharam Nath V Commercial Credit Corpn Ltd AIR 1940 Oudh 35). No distinction has, therefore, to be made between circumstantial and direct evidence. {See Miran Baksh V Emperor AIR 1931 Lah 529 and Thimma V State of Mysore (1970) SCC (Cr) 320}. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. (See Shankar Bhaka Narsale V State of Maharashtra AIR 1972 SC 1171 and Chanan Singh V State of Haryana AIR 1971 SC 1554) In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that State Vs. Montu Yadav 23 of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)) In Raju Vs. The State by Inspector of Police AIR 2009 SC 2171, as regards circumstantial evidence, the Hon'ble Apex Court observed as under:
"7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the State Vs. Montu Yadav 24 conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
8. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v.
State of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
9. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all State Vs. Montu Yadav 25 human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
10. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
11. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order State Vs. Montu Yadav 26 to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted".
12. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
13. In Hanumant Govind Nargundkar and Anr.
V. State of Madhya Pradesh, (AIR 1952 SC
343), wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. A reference may be made to a later decision State Vs. Montu Yadav 27 in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
State Vs. Montu Yadav 28 (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors.
v. State of Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008)."
In a recent pronouncement in Musheer Khan alias Badshah Khan Versus State of Madhya Pradesh 2010JT1535 SC relied upon by learned counsel for accused Narvinder Singh following observations were made by Hon'ble Supreme Court:
"(46) In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence.
(47) This court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances. (48) Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been State Vs. Montu Yadav 29 compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with merest of touches."
The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence.
(49) To my mind, the first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the accused. [see Raghav Prapanna Tripathi and others V. State of U.P (AIR 1963 SC 74)].
(50) The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused. [see: State of U.P V. Ravindra Prakash Mittal (1992 Crl. L. J 3693 (SC)]."
29. From the above legal position, it is clear all parts of chain of circumstantial evidence appearing against the accused should be established and proved against the accused to bring home guilt of the State Vs. Montu Yadav 30 accused by prosecution. All parts of important incriminating circumstances should not only be proved but the combined effect should lead to the inference that accused (s) alone has/have committed murder of the victim. In the present case, the important circumstance of last seen the accused Montu Yadav with the victim is missing. There is no evidence on record to suggest that accused Montu Yadav was present at or near the spot as on the date of commission of offence. The witnesses examined on behalf of prosecution only lead to the superficial inference of incriminating circumstances against accused Montu Yadav. Even the dead body of the victim could not be identified by PW7 Vijay Yadav the brother in law of the deceased who stated that he did not identify dead body of his Jija before police on seeing the photograph, though, the dead body is identified by wife of victim PW6 Jai Mala by seeing the photograph.
30. The prosecution case based on the disclosure statement of accused Montu Yadav is that accused party and the victim's family had common boundary in their fields in their native place and there was dispute between them as to boundary so the victim Ram Swaroop Yadav @ Modi Yadav was lured by accused party to join service with accused Pappu Yadav and on account of enmity regarding the boundary in their respective fields in the native place, the accused persons committed State Vs. Montu Yadav 31 murder of the victim. This fact is disclosed in the disclosure statement of accused Montu Yadav but the witnesses and close relatives of victim examined from his native place have not supported this prosecution case. The PW6 Jai Mala the wife of victim Ram Swaroop Yadav @ Modi Yadav has stated that accused Montu then present in the court is resident of her village and is known to her as covillager. She stated that she could not say whether Pappu Yadav, Vijay Yadav and Shakki Yadav are residents of her village. She denied the suggestion that accused Montu Yadav was working in the factory in the year 1999 or Pappu Yadav was running that plastic factory. She also denied that her brother Vijay told her that he had left her husband with Pappu Yadav, Vijay Yadav, Shakki Yadav and accused Montu.
31. PW7 Vijay Yadav brother in law of deceased Ram Swaroop Yadav @ Modi Yadav is also hostile witness like the wife of victim PW6 Jai Mala. He stated that he did not identify the dead body of his brother in law on seeing photograph. In the crossexamination conducted on behalf of State, he denied that his Jija (victim) had left the village along with him to Delhi in search of work. He also denied the suggestion that he left his brother in law with accused persons in the factory of Pappu Yadav. He also denied the suggestion that accused Montu was working in the said factory in the year 1999 or the coaccused persons were also State Vs. Montu Yadav 32 working there. He also denied the suggestion that accused persons were found involved in the present case by the police.
32. Therefore, the story of the prosecution that victim Ram Swaroop Yadav @ Modi Yadav along with his brother in law PW7 Vijay Yadav came to Delhi and joined services with Pappu Yadav and thereafter Vijay Yadav left the job and returned to the village after he got an electric shop in the factory, is not proved by the relevant witnesses PW7 Vijay Yadav and PW6 Jai Mala.
33. All other witnesses produced by the prosecution are formal witnesses with regard to recovery of dead body of victim or conducting of postmortem on the dead body of victim or the steps taken by investigating officer during investigation of the case, from which no eye witness or no important chain of circumstantial evidence could be established against accused Montu Yadav.
RESULT OF THE CASE
34. In view of the above, I hold that the prosecution has failed to prove its case against accused Montu Yadav beyond reasonable doubt. The accused is acquitted of the charge under Section 302/34 IPC. He be released from jail if not required to be kept in jail in any other case. The State Vs. Montu Yadav 33 file shall be taken up again after the coaccused persons or either of them is arrested and produced before the court to face trial after committal proceedings. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The file be consigned to the record room.
Announced in the open court on this 20th day of December 2010 (S. K. SARVARIA) DISTRICT JUDGEVIII & INCHARGE ADDITIONAL SESSIONS JUDGE ROHINI COURTS, DELHI State Vs. Montu Yadav