Delhi District Court
State vs . 1. Mukesh on 24 February, 2010
1 FIR No.: 17/2006
IN THE COURT OF MS. MADHU JAIN, ADDITIONAL SESSIONS
JUDGE03, NORTH, DELHI.
FIR No.: 17/2006
PS: Timarpur
U/s: 302/201/120B/34 I.P.C
S.C. No.: 20/2006
In the matter of:
State Vs. 1. Mukesh
S/o Sh. Mahavir Singh
R/o Gali No.4, ABlock Kadi Vihar
PS: Samaipur Badli, Delhi.
2. Rajbiri W/o late Sh. Attar Singh
R/o ABlock, 25 Foota Road,
Kadi Vihar, Samaipur Badli, Delhi
Date of receiving in Sessions Court : 17.07.2006
Arguments Heard : 10.2.2010 & 24.2.2010
Date of Judgement : 24.2.2010
JUDGEMENT
Case Of Prosecution:
1. On 8.1.2006 at about 2.40 p.m. vide DD No.17 PP Burari Rajesh Gupta gave a telephonic message that a dead body is lying at Prakritik Farm House road Samaipur Badli near paddy 'phoos' 2 FIR No.: 17/2006 (remnants). DD was handed over to ASI Lallan Prasad who alongwith Ct. Balvinder reached at the spot and incharge PP Burari also reached at the spot and Inspector H.S. Rawat alongwith driver Ct. Tribhan who were present on patrolling duty in the area was called by SI Arvind, I/C PP Burari through wireless set who also reached at the spot and thereafter SI Arvind met him and told inspector HS Rawat that a dead body is lying in the paddy filed. IO inspector HS Rawat inspected the site. On the right hand of the dead body mark 'OM' and 'Trishul' were engraved and near the dead body blood smeared brick was lying. Foul smell was coming from the dead body and face of the dead body was disfigured. IO interrogated the nearby persons and passersby for the identification of the dead body and inquiry was made from them but it could not be identified. Dog Squad, Crime Team and Photographer were called at the spot and a case u/s 302/201 IPC was registered. Thereafter investigation was taken by the inspector 3 FIR No.: 17/2006 HS Rawat, Additional SHO Police Station Timarpur. During investigation for the identification of the dead body he sent written message to SSPs all over India and posters were also affixed at different places in Delhi. Enquiry was also made from the missing persons squad. During postmortem after cleaning the skin of the right forearm word 'Attarpal' in Hindi was written and the cause of death was cranio cerebral injuries as a result of hard blunt force impact directed upon head. All injuries were antemortem in nature caused by impact of blunt object. Mode of death was homicidal.
Craniocerebral injuries were sufficient to cause death in ordinary course of nature. After found engraved Attarpal on his right forearm, wireless messages were got flashed and the posters were again affixed. Further the messages in Hindi and English newspapers were also got published but the dead body could not be identified. During investigation from missing persons reports from PS Samaipur Badli, one Attar Singh was found missing from 4 FIR No.: 17/2006 PS Samaipur Badli from 26.12.2005 vide DD No.7A which was got registered by the wife of Attar Singh but in that DD no mark of identification of the missing person was given. The age of the person was recorded as 25 years and the height was about 5 ft. Since the dead body was found near Kadi Vihar from where the said Attar Singh was missing, therefore, IO went to Kadi Vihar and made enquiries from the complainant Rajbiri regarding the missing person namely Attar Singh. Said Rajbiri did not identify the photographs of the dead body. The age of Rajbiri was 30 years. She had stated age of her husband as 25 years. How the age of her husband can be 25 years when she was 30 years to which she had not given any satisfactory answer. For the identification purpose, the brothers of Attar Singh were called and both of them identified the dead body and stated that the photographs of the dead body is that of their brother Attar Singh. They further stated that word Attarpal was engraved on his right hand arm as their cast 5 FIR No.: 17/2006 was Pal. Pratap Singh cousin brother of Attar Singh also identified the dead body and told that he and Attar Singh had engraved their names on their arms. They further told to the IO that since the relation between Attar Singh and his wife was not cordial, therefore, he came back to the village. Thereafter Attar Singh came to know that Rajbiri had illicit relations with their tenant Mukesh. During investigation the evidence came on record that Rajbiri and Mukesh had illicit relations and Attar Singh had thrown away said Mukesh from the house. This fact also came on record that during the absence of her husband, Rajbiri visited Anu Clinic of Dr. Vijay Laxmi for her pregnancy related issue. Subsequently accused Mukesh was arrested and he made disclosure statement that they both Rajbiri and Mukesh alongwith Veerpal who was given Rs. 3000/ for this work committed murder of Attar Singh. Accused Mukesh pointed out to the place of incident where he had concealed the clothes of the deceased and also pointed out 6 FIR No.: 17/2006 towards the ditch where had concealed the thaila containing clothes of deceased alongwith with tiffin,his factory clothes and blood stained khese of the deceased. All the case property was seized and sealed separately and accused Rajbiri was also arrested. Accused Mukesh also made extra judicial confession to one Raju S/o Matadin resident of Nathupura who used to visit at his shop. Statement of Raju was also recorded. The workers of the factory of Attar Singh were enquired and it transpired that on 24.12.2005 being Saturday, Attar Singh had taken his factory clothes to his house. TIP of clothes was also got conducted and exhibits were sent to FSL. After completion of investigation, chargesheet against Mukesh and Rajbiri was filed in the court as despite efforts accused Veerpal could not be arrested.
2. Since the offence u/s 302 IPC is exclusively triable by the courts of Sessions, therefore after supply of the documents, Ld. M.M. committed the case to the court of Sessions. 7 FIR No.: 17/2006 Charge Against Accused:
3. Prima facie case u/s 120B/302 read with section 120B IPC and u/s 201 read with section 120B IPC was made out against the accused persons. Charge was framed against them to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution examined 44 witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses
5. PW3 is HC Rajpal Singh who was the photographer in the crime team took the photographs of the scene of crime as well as of the dead body and proved the same as Ex. PW/A to PW3/F and negatives thereof as Ex.PW3/G to PW3/M.
6. PW4 SI Dalip Kumar Shukla who was the incharge of Mobile Crime Team who tried to develop chance prints but no such 8 FIR No.: 17/2006 article was detected from where the chance print could be developed.
7. PW5 Sh.Rajesh Gupta who gave the information of dead body to the police of PP Burari from his mobile phone.
8. PW6 HC Rajbir Singh is the special messenger who delivered the copy of the FIR to the Ilaqa MM, DCP and joint CP.
9. PW9 is Ct. Tribhan Singh who took the sealed parcel to the FSL office.
10. PW10 is SI Darshan Lal who deposed that while interrogation on 30.3.2006 accused Mukesh made disclosure statement Ex. PW10/A before him.
11. Similarly PW19 Ex. Ct. Ajit Singh is also the witness of disclosure of accused Mukesh.
12. PW11 Ct. Pradeep who was also the the member of the crime team and reached at the spot alongwith dog squad.
13. PW13 is Ct. Isham Singh who was working as MHC(M) 9 FIR No.: 17/2006 at Police Station Timarpur and he deposited the case property in the malkhana vide various entries and also sent the samples to FSL.
14. PW14 is Ct. Rajender Singh who was called by the IO at the spot and he took the dead body to mortuary for postmortem.
15. PW16 Sh. Deepak Kumar Tyagi who is husband of PW1 Dr. Vijay Laxmi Tyagi.
16. PW18 is Ct. Om Prakash who took the parcels to FSL office, Rohini.
17. PW22 is SI Mahesh draughtman who prepared the scaled site plan at the instance of IO and proved the same as Ex.PW22/A.
18. PW23 is ASI Vedpal who registered the case and proved the copy of FIR as Ex. PW23/A. Material witnesses
19. PW1 is Dr. Vijay Laxmi Tyagi who stated that she is 10 FIR No.: 17/2006 running a clinic under the name and style Anu Clinic in Main Bazar (Budh Bazar), Nathupura and accused lady had visited at her clinic for her pregnancy test. She came at her clinic for about three times and she found positive test of her pregnancy. The accused lady did not want her pregnancy and want to get her abortion and she did not perform abortion upon her and she referred her to other hospital. She further stated that accused lady has disclosed her name as Rajeshwari and she made entry in OPD register on 8.6.2005 at serial no.6. She further deposed that police of Police Station Timarpur brought the accused lady at her clinic in the month of March, 2006 and she identified the accused lady and told the above said facts to the police. Police had taken the OPD register into possession vide memo Ex.PW1/A which bears her signature at point A. She has further proved OPD register as Ex. PX and the relevant entry of 8.6.2005 at serial no.6 as Ex. PW1/B. She further stated that police recorded her statement. 11 FIR No.: 17/2006
20. PW2 Dr.K.Goel CMO from Mortuary Subzi Mandi who conducted the postmortem of unknown male aged about 3035 years on 13.1.2006 and has duly proved his report as Ex. PW2/A. This witness has further stated that initially he gave the time since death of 89 days but subsequently he reviewed his opinion on inspection of the scene of crime as it was revealed that body was laid near the huge water collection covered with the heap of dry straws and the season being of December2005 and January2006 in which cold waves were recorded in Delhi so in view of weather conditions, location of dead body he reviewed the time since death from 89 days to 20 days in his opinion Ex. PW2/B.
21. PW7 is the ASI Lallan Prasad who deposed that on 8.1.2006 he was posted as ASI at Police post Burari and was on emergency duty. At about 2.40 p.m. duty officer handed over to him a copy of DD no.17. He alongwith Ct. Balvinder went there. SI Arvind Sharma also went with them. A dead body of male person 12 FIR No.: 17/2006 aged about 30/35 years having blackish complexion and having height of 5 ft 6 inch was lying. A white colour underwear was only worn on the dead body. On the right hand of the dead body in Hindi word 'OM' and picture of 'Trishul' were tattooed. The body was decomposed and foul smell was coming from the dead body. The incharge of PP SI Arvind Sharma informed to the additional SHO Police Station Timarpur who also reached at the spot alongwith police staff in a government vehicle. He also inspected the scene of crime and dog squad from crime team was called at the spot. Photographer of the crime team took the photographs of the dead body and scene of crime. Brick having blood spot was lying near the dead body and blood was on the spot. No witness could be found there and none from the public could identify the dead body. Additional SHO made endorsement on the DD no.17 and sent the same to Police Station Timarpur through Ct. Balvinder for registration of case. Blood smeared brick, blood smeared straw 13 FIR No.: 17/2006 and earth sample were sealed into different parcels and earth control and sample straw were also sealed into different parcels and the dead body was sent to the mortuary of Subzi Mandi under the supervision of Ct. Rajender.
22. PW8 Ct. Balvinder and PW12 SI Arvind Kumar both have deposed on the lines of PW7.
23. PW15 is HC Rakesh Kumar who deposed that on 26.12.2005 he was posted as HC at Police Station Samaypur Badli. On that day duty officer handed over the copy of DD No.7A regarding missing of a person named Attar Singh from Kadi Vihar. He went to the above said address where accused lady Rajbiri met him and he made enquiry from her. She disclosed that her husband Attar Singh was mentally disturbed and might have gone somewhere and he used to go in his relation and might have visited at the residence of some relative. One of his relative namely Bhajan Lal was living in Nathupra. He made enquiry from said 14 FIR No.: 17/2006 Bhajan Lal but he could not disclose anything about him. Thereafter he asked lady accused to disclose the identification marks of her missing husband but she did not disclose any identification mark except for the one which she disclosed in DD No.7A. He proved the DD as Ex. PW15/A. He further stated that after lodging the DD accused lady never came to the PS and he visited at her residence for 2 or 3 times for making enquiries. He also received photographs of Attar Singh i.e. deceased from Bhajan Lal who was the close relative of Attar Singh and wireless messages were also sent and photographs of the missing person Attar Singh was affixed thereon but his whereabouts could be traced out. Thereafter the police of Police Station Timarpur told him that Attar Singh has been murdered and he told the above said facts to the police of Police Station Timarpur and handed over the copy to them.
24. PW17 is HC Mukhtyar Singh who was the duty officer at 15 FIR No.: 17/2006 Police Station Samaypur Badli on 26.12.2005 and recorded DD No.7.
25. PW20 is Sh. Dharambir Singh brother of deceased Attar Singh. He has stated that he know accused Mukesh and Rajbiri as accused Rajbiri is wife of his deceased brother Attar Singh. He deposed that in the house of accused Rajbiri in Nathupura, Delhi accused Mukesh was a tenant and used to do tailoring work. His deceased brother alongwith his wife Rajbiri and children were living in the village Nathupura since 2005. His deceased brother had told him about the illicit relations between both the accused persons and he asked him to turn out the accused Mukesh from his house but accused Rajbiri did not allow. Her further deposed that his deceased brother sometimes came to him at his village and remained with him for some days. Thereafter he asked him to go to Delhi and live with the children. He came to Delhi and started living with his children. On 16.3.2006 he received a telephonic message 16 FIR No.: 17/2006 from the brother of accused Rajbiri that a dead body is lying in PP Burari. On receipt of this information he alongwith some other persons from his village came to PP Burari. The police had shown him photographs of a dead body and he identified the photographs as of his deceased brother Attar Singh. He further stated that he and his deceased brother had got tattooed or names on their arms in the festival of Sikri. He further identified the photographs shown to him by the police. He further identified the photographs of his deceased brother Attar Singh and he was discharged on that day and thereafter he had been visiting PP Burari and on 29.3.2006 only the police had joined him in the investigation of this case alongwith Bhondu Singh and Partap Singh. During investigation they went to Kadi Vihar from where accused Mukesh was arrested by the police vide memo Ex. PW20/A. Accused made disclosure statement Ex. PW20/B and also pointed out the place where he and his associates had committed the murder of his brother Attar 17 FIR No.: 17/2006 Singh. The police prepared the pointing out memo Ex. 20/C and also prepared the site plan Ex. PW20/D. He deposed that accused Mukesh had told them that he and his associate Veerpal had committed murder of his brother. He further stated that he had disclosed this fact to Rajbiri also. Thereafter the accused took them at some distance about 50 feet away from that place and pointed out the place where he concealed the clothes, tiffin, shoes etc of his brother. He stated that he does not remember if any clothes were recovered on that day. Thereafter the accused Rajbiri was arrested vide memo Ex.PW20/E. She was also interrogated by the police and whatever she disclosed to the police was recorded by the police vide Ex. PW20/F. This witness was cross examined by ld. APP for the state and he also admitted that accused took them near a ditch and took out a dirty cloth thaila from which a shirt of cream colour checkdar, a dirty Tshirt, one tiffin of stainless steel was recovered. A dirt khese having blood spot and a muffler of 18 FIR No.: 17/2006 red and black colour in design, a reddish colour sweater of half arm, a red and green colour checkdar shirt, a green colour pant, another pant of grey colour having spots of grease, a white shirt on which label of volunt was attached and a pair of plastic shoes of black colour were also recovered by the accused and he identified all of them as belongings of his brother. The police had sealed the above said articles and taken the same into possession vide memo Ex. PW20/G. He also duly identified the case property in the court.
26. PW21 is ASI Babu Lal who went to the factory Sai Industries of Rajneesh Tyagi at Burari and he met Inspector Singh, Foreman there and asked him to produce attendance register of labours and he took the photocopies of the relevant pages of attendance register of the month of September, 2005 and December2005 and deposited the attendance register with MHC (M). He further proved the seizure memo of the register as Ex. 19 FIR No.: 17/2006 PW21/A and PW21/B.
27. PW24 is Inspector Singh, Foreman of factory where deceased Attar Singh was working as helper. He has stated that on 24.12.2005 he came to the factory and worked there. After finishing his duty he left at about 5.30 p.m. He used to take a tiffin with him and used to cover himself with khese. On that he had taken his clothes which he used to wear at duty time, to his house as on that it was Saturday and he had to wash the same on Sunday. He had to join his duty on 26.12.2005 but he did not return to his duty. Thereafter police came in the factory to enquire about Attar Singh. This witness has further proved the attendance register seized by the police vide PW22/C. He also stated that he was summoned by the concerned MM for the identification of the clothes and belongings of the deceased and he identified the same in judicial TIP. He further identified all the clothes and belongings of the deceased in the court also.
20 FIR No.: 17/2006
28. PW25 is Sh. Rakesh Ranjan, LDC from the office of Sub RegistrarI Kashmere Gate, Delhi who deposed that house No. 27 Kadipur is in the name of Rajbiri.
29. PW26 Sh.Bhondu Singh is one more brother of deceased who also deposed on the lines of PW20.
30. PW27 Sh.Chiranjee Lal is neighbour of accused and stated that he used to take milk from the house of accused Rajbiri in the year 2006 or before. When he used to go to take milk from the house of accused Rajbiri, accused Mukesh was also residing in the house of accused Rajbiri and was running his tailoring shop there.
31. PW28 Sh. Ramesh Chand, brother of accused Rajbiri has deposed that accused Rajbiri married with accused Attar Singh on 2.3.1992 and after marriage they both lived in the native village of deceased Attar Singh and after sometime in the year 1996 they came to Delhi. Deceased Attar Singh purchased a plot in the name 21 FIR No.: 17/2006 of his wife Rajbiri and constructed a house on that plot. The plot was situated in Kadi Vihar near Nathupura. Thereafter in the year 20032004 Attar Singh went to his native village and accused Rajbiri remained in Delhi alongwith her two children. In the year 2005 aunt of deceased Attar Singh brought him to Delhi and left him with Rajbiri. Attar Singh started doing a job in a factory in Burari and he worked there for about four or five months. On 24.12.2005 Attar Singh was found missing. He further stated Attar Singh had told them that accused Mukesh is having illicit relations with accused Rajbiri and he and his brother intervened and got vacated the rented room from the house of Rajbiri from accused Mukesh. On 26.12.2005 a missing report was lodged by Rajbiri in Police Station Samaypur Badli. The police of PP Burari of Police Station Timarpur called him and shown the photographs of the dead body and he identified the dead body as of Attar Singh. He stated that police had also seized the documents of the plot. 22 FIR No.: 17/2006
32. PW29 Sh. Charan Singh is also neighbour of accused Rajbiri. He stated that accused Mukesh used to do tailoring work in the rented room of the house of accused Rajbiri. He only seen a quarrel between Rajbiri and Mukesh at the time of vacating the rented room in the house of Rajbiri and nothing else.
33. PW30 is Sh. Rajbir who is the only witness of extra judicial confession made by accused Mukesh to him. Her has proved his statement recorded u/s 164 Cr. PC as Ex. PW30/A.
34. PW31 Sh. Joginder Pal Singh is one more important witness of the prosecution who deposed that on 21.2.2006 he had purchased a house No.112, Gali No.6 khasra No. 1045, Kadi Vihar, Nathupura from Veenta wife of Veerpal. He is residing alongwith his family in the said house. He further stated that Veerpal alongwith his family left that house as they sold the same to him.
35. PW32 Sh. Shiv Kumar is brother in law of Yoginder Pal Singh who purchased the above said house from Smt.Vineeta wife 23 FIR No.: 17/2006 of Veerpal and sold the same to him.
36. PW33 is Sh.Ratan Singh who has stated that in the month of JanuaryFebruary2006 accused Mukesh had requested him to give his shop to him on rent as he wanted to vacate the shop of accused lady and thereafter he gave his one shop on rent to the accused Mukesh in Nathupura and he started doing tailoring work in the said shop.
37. PW34 is Sh. Ram Kumar cousin of Attar Singh and PW35 is one more cousin of Attar Singh. Initially both these witnesses did not support the case of the prosecution but subsequently during their examination by ld. APP for the state they admitted some of the facts of the case.
38. PW36 is Sh. Pratap Singh who had stated that on the arm of Attar Singh his name Attar Pal was tattooed and word 'OM' and picture of 'Trishul' was also tattooed on his arm.
39. PW37 Sh.Ram Prasad and PW39 Sh. Kuldeep Kumar 24 FIR No.: 17/2006 are the workers of the factory Sai Industries where deceased Attar Singh was also working. PW37 has duly proved all the belongings of deceased Attar Singh in the TIP proceedings as well as in the court. PW39 has also identified the clothes and other belongings of the deceased.
40. PW38 is SI Rajneesh Sharma, PW40 Inspector T.R. Mongia and PW42 Inspector Sanjay Sharma are the witness who joined investigation of the case and subsequently arrested the accused Mukesh and they duly proved the disclosure of both the accused, pointing out memos, clothes and other articles of the deceased and other memos.
41. PW41 is Sh. Ajay Goel, Senior Civil Judge cum RC who conducted the TIP of the clothes and belongings of the deceased and has proved his report as Ex. PW41/A and Ex.PW41/B. He also recorded the statement of one Rajbir @ Raju u/s 164 Cr. P.C and proved the same as Ex. PW30/A. 25 FIR No.: 17/2006
42. PW43 is Inspector Hari Singh Rawat, Addl. SHO of Police Station Timarpur who is IO of the case, conducted the investigation of the case and proved all the memos and documents and deposed the same in the court.
43. PW44 is Sh. A.K. Shrivastava, Assistant Director from FSL, Rohini who duly proved the FSL report as Ex. PW44/A, Ex.PW44/B, Ex.PW44/C and Ex. PW44/D.
44. Statement of both the accused was recorded wherein both the accused denied the case of the prosecution. Accused Mukesh admitted that he was tenant in the house of Attar Singh as tenant till October 2005 but he has denied the rest of the allegations. Accused further chose to lead evidence in his defence. Accused Rajbiri also admitted that she lodged a missing report regarding her husband and she further admitted that the brothers of the deceased Attar Singh identified the photographs of dead body as of Attar Singh. She has further admitted that accused 26 FIR No.: 17/2006 Mukesh lived as tenant in their house for sometime but she denied that she had any illicit relations with him. She has further stated that his brother made a false allegations against her as he wants to grab this property. She further stated that Attar Singh did not come to the his house on 23.12.2005 and was missing since then. She has further denied any connivance with accused Mukesh or Virpal to kill Attar Singh. She stated that she has been falsely implicated. She further chose to lead evidence in her defence.
45. In their defence both the accused persons examined only one witness.
46. DW1 is Sh. Suresh who stated that he is elder brother of accused Mukesh and Mukesh is handicap from his right leg since his birth. He stated that he is unable to walk without any support and unable to do his house hold chores.
47. I have head ld. APP for the state and ld counsels for the accused persons and have carefully perused the record. 27 FIR No.: 17/2006
48. Ld. APP for the state argued that the prosecution has established the chain of circumstances beyond any reasonable doubt; the contradictions as pointed out are minor in nature which are liable to be ignored; there is no major discrepancy in the prosecution story and all material witnesses have fully supported the prosecution case and there is nothing in their lengthy cross examination so as to assail their deposition. Ld. APP for the state vehementally argued that the prosecution had established its case by completing the chain of circumstantial evidence and the evidence on record has nowhere been assailed in any manner therefore, accused be convicted for the offence of murder.
49. On the other hand, Ld. Defence Counsels argued that chain of circumstantial evidence is not complete. There is no last seen evidence and identity of dead body is not established by prosecution. Therefore, all the accused are entitled for acquittal.
50. Admittedly there is no eye witness of the present case 28 FIR No.: 17/2006 and entire case rests upon the circumstantial evidence. The law relating to circumstantial evidence is very clear and has been laid down by the Hon'ble Apex Court in various judgments again and again.
51. It has been held in Ramesh Bhai & Anr. Vs. State of Rajasthan 2009 VIII AD (S.C.) 313 that "It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the reference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, AIR 1977 SC 1063, Eraden & Ors. Vs. State of Hyderabad AIR 1956 SC 316, Erabhadrappa Vs. State of Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balminder Singh Vs. State of Punjab AIR 1987 SC 350, Ashok Kumar Chatterjee Vs. 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". 29 FIR No.: 17/2006
52. In Bhagat Ram Vs. State of Punjab AIR 1954 SC 621, it was laid down that "Where the case depends upon the conclusion drawn from circumstances the cumulative effect of circumstances must be such as to negative the innocence of the accused and bring the offence home beyond any reasonable doubt".
53. In C.Chenya Reddy & Ors. Vs. State of A.P. 1996 (10) SCC 193, it has been observed that "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......"
54. In Padala Veera Reddy Vs. State of A.P. & 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. 30 FIR No.: 17/2006 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence"
55. In state of U.P. Vs. Ashok Kr. Srivastava 1992 Crl.L.J. 1104, it was pointed out that "Great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable of an inference, 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".
56. Sir Alfred Mills in his admirable book "Mills Circumstantial Evidence"(Ch. VI) lays down the following rules specially to be observed in the case of circumstantial evidence: 31 FIR No.: 17/2006
(i) the facts alleged on the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum propandum,
(ii)the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability,
(iii)in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits.
(iv)in order to justify the inference of guilt, the inculpating facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt.
(v)If there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
57. These aspects were also highlighted in State of Rajasthan Vs. Rajaram, 2003 (8) SCC 180, State of Haryana Vs. Jagbir Singh & Anr. 2003 (II) SCC 261 & in State of U.P. Vs. Ram Balak & Anr. 2008 (13) scale 541.
58. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eyewitness to the 32 FIR No.: 17/2006 incident. I have considered the rival submissions made at bar and have carefully gone through the evidence on record. The case of prosecution is based on circumstantial evidence and the prosecution has claimed to have established its case by proving the following circumstances in evidence which form the chain of circumstantial evidence:
(i) Recovery of the dead body of unknown male.
(ii) Identification of the deceased. (iii) Disclosure of accused and recovery of the
articles/clothes of deceased at the instance of accused.
(iv) Extra judicial confession. (v) Motive of Crime.
59. In order to prove the guilt of the accused beyond reasonable doubt, it is bounden duty of the prosecution to establish that the circumstances concerned must have been established and the circumstances should be of a conclusive nature excluding every hypothesis except the one that proves the guilt of the 33 FIR No.: 17/2006 accused. It is further required to prove that the chain of circumstantial evidence is complete as not to leave any reasonable ground for the conclusion which is consistent with the innocence of the accused and it must have been shown that in all human probability, the offence must have been committed by the accused.
60. I have closely scrutinized the evidence and the material on record to find out whether the prosecution has succeeded in fulfilling the above requirement and has established its case beyond reasonable doubt.
Recovery of the dead body of unknown male:
61. The witnesses to this circumstantial evidence are PW2, PW3, PW4, PW5, PW7, PW8, PW12, PW14, PW37.
62. That dead body of unknown male is lying in the Prakritik Farm House road Samaypur Badli near paddy 'phoos' (remnants) was the information given by PW5 Rajesh Gupta which was 34 FIR No.: 17/2006 recorded vide DD No. 17. This DD was handed over to SI Lallan Prasad PW7 who reached at the Prakritik Farm house 60 feet Road, Samaypur Badli alongwith Ct. Balvinder. There they found a dead body of a male person aged about 30/35 years having blakish complexion and having height of 5ft 6 inch. One underwear was only worn on the dead body and on the right hand of the dead body in Hindi word 'OM' and picture of Trishul were tattooed. The dead body was decomposed and foul smell was coming. The testimony of PW7 is further corroborated by PW8 Ct. Balvinder Singh who reached at the spot alongwith the PW7 and PW12 SI Arvind Kumar incharge PP Burari. PW3 HC Rajpal Singh photographer of the crime team also reached at the spot and took the photographs of the scene of crime as well as the dead body Ex. PW3/A to Ex. PW3/F and negatives of the same Ex. PW3.G to Ex. PW3/M. Similarly PW4 SI Dalip Kumar Shukla incharge of crime team has stated that he could not develop chance prints from the spot. 35 FIR No.: 17/2006 PW14 Ct. Rajender Singh is one more witness who took the dead body to the mortuary. All these witnesses have deposed that there was blood lying on the spot and the brick having blood spot was also lying there. Nothing has come out of the cross examination of these witnesses and from their deposition it stands proved that dead body of unknown male in a decomposed condition from which foul smell was coming having blood spot and also there was blood on the spot and brick having blood spot lying near the dead body, was found. PW2 Dr. K.Goel from mortuary Subzi Mandi also deposed that he conducted the postmortem on the dead body of unknown male on 13.1.2006 with the alleged history of found dead and after examination he gave his report Ex. PW2/A. He opined the cause of death craniocerebral injuries as a result of hard blunt force impact and all the injuries were antemortem in nature caused by the impacts of blunt object. Mode of death was homicidal and craniocerebral injuries were sufficient to cause death in ordinary 36 FIR No.: 17/2006 course of nature. He opined the time since death of 89 days but subsequently on 23.5.2006 he visited the scene of crime alongwith the police and reviewed his opinion regarding time since death on inspection of scene of crime and it was revealed that that body was laid near the huge water collection covered with the heap of dry straw and the season being of December2005 and January2006 in which cold waves were recorded in Delhi so in view of weather conditions and location of dead body he reviewed the time since death as 20 days instead of 89 days. He has been cross examined at length by counsel for the accused but he deposed that when the body was received for postmortem it was disclosed to him that body was found in the field and body was unclaimed but the IO has not disclosed about the surroundings nor did he enquire. He stated that more that 100 times he had visited the place of occurrence for giving opinion on the postmortems. He further denied the suggestion in assessing the time of death since 37 FIR No.: 17/2006 postmortem that the variations in the assessment can be maximum 24 hours and not more that. He voluntarily stated that in case of decomposed body variation can be more than 24 hours and also due to difference found in the location of the dead body seen by him after visiting the scene of crime. Merely because this witness has not been able to remember the registration number of vehicle or the make of the car in which he was taken to scene of crime is not a ground to disbelieve his testimony. Thus, prosecution has been able to prove that a body of unknown male person was recovered and the cause of death vide report Ex. PW2/A and Ex. PW2/B was craniocerebral injuries caused by blunt force which was sufficient in ordinary course of nature to cause death and time since death was about 20 days.
Identification of dead body:
63. The witnesses to this circumstantial evidence as per the prosecution are PW15, PW17, PW20, PW21, PW24, PW26, PW28, 38 FIR No.: 17/2006 PW36, PW37, PW38, PW39, PW40, PW41, PW42 and PW43.
64. PW17 is HC Mukhtyar Singh from PS Samaypur Badli who deposed that he was working as duty officer when accused Rajbiri came to him and told that her husband Attar Singh is missing from 24.12.2005 and whatever she disclosed he recorded the same vide DD No.7 Ex. PW17/A. As per the DD Ex. PW17/A and Ex.PW15/A, Rajbiri has reported that her husband Attar Singh has gone to work in the factory on 24.12.2005 but had not returned till 26.12.2005. She enquired from his relatives and neighbourers but could not get any information, therefore she had come to the PS to report about his missing. She had further stated that the age of her husband as 25 years and height about 5 ft.
65. PW15 is HC Rakesh who was handed over the DD Ex.
PW17/A and he made enquiries from Rajbiri. He stated that Rajbiri did not disclose any identification mark of her husband and the photographs of Attar Singh were also provided by one of his 39 FIR No.: 17/2006 relative Bhajan Lal. He further stated that Rajbiri never came to the PS for making any enquiry and as per the accused Rajbiri her husband was missing since 24.12.2005. Despite his being missing from 24.12.2005 except for lodging missing person report she never contacted or went to PS to enquire further about his report is one more circumstantial evidence regarding the conduct of the accused after her husband went missing.
66. PW20 is Sh. Dharambir Singh brother of deceased Attar Singh. He has stated that Attar Singh told him about the illicit relations between both the accused persons and his brother started living at village but after sometime he asked him to go to Delhi and he came Delhi and started living in Delhi alongwith his wife and children at Nathupura. He stated that on 16.3.2006 he received a telephonic message from the brother of accused Rajbiri that a dead body is lying in PP Burari. On receipt of this information he alongwith some other persons from his village came 40 FIR No.: 17/2006 to PP Burari, there the police showed him photographs of a dead body and he identified the photographs as of his deceased brother Attar Singh. He further stated that he and his deceased brother had got tattooed or names on their forearms in the festival of Sikri. He further identified his brother in the photographs shown to him by the police. This witness has also stated that accused took them near bushes and pointed out towards a ditch and he got recovered dirty cloth thaila from which a shirt of cream colour checkdar, a dirty Tshirt, one tiffin of stainless steel were found. A dirt khese having blood spot and a muffler of red and black colour in design a reddish colour sweater of half arm, a red and green colour checkdar shirt, a green colour pant, another pant of grey colour having spots of grease, a white shirt on which label of volunt was attached and a pair of plastic shoes of black colour were also recovered by the accused. This witness identified all the case property in the court and stated that these were recovered at the instance of accused 41 FIR No.: 17/2006 Mukesh. In his cross examination, so far as the identity of the dead body is concerned, then no suggestion has been given to this witness that he had not identified the dead body in the photographs shown to him by the police. This witness has stated that it is general practice that the villagers have tattoos on their hands. He stated that he identified Attar Singh on the basis of tattoo 'OM' and his name Attar Pal which was tattooed on his hand.
67. PW21 is ASI Babu Lal who seized the attendance register of the factory Sai Industries where deceased Attar was working of the month of September, 2005 and December 2005. The said register shows the name of Attar Singh also and he had marked his presence for 24.12.2005.
68. Similarly, PW24 is Inspector Singh foreman of Sai Industries. This witness has also deposed that Attar Singh was working as helper. On 24.12.2005 he came to the factory and worked there. After finishing his duty he left at about 5.30 p.m. He 42 FIR No.: 17/2006 used to take a tiffin with him and used to cover himself with khese. On that he had taken his clothes which he used to wear at duty time to his house as on that day it was Saturday and he had to wash the same on Sunday. He had to join his duty on 26.12.2005 but he did not return to his duty. He gave the attendance register of the worker Attar Singh to the police and also identified the clothes of the deceased before MM and other belongings i.e. tiffin, khese, shoes muffler etc. This witness also identified the clothes and belongings of the deceased Attar Singh in the court and stated that these are the same. Thus the clothes of deceased were recovered by the police at the instance fof accused also stands proved.
69. PW37 and PW39 i.e. Ram Prasad and Kuldeep Kumar are two more workers who stated that Attar Singh was working in the factory as helper and they identified the clothes and other belongings of the deceased in TIP proceedings as well as in the court. These clothes and belongings as per the prosecution were 43 FIR No.: 17/2006 recovered at the instance of accused Mukesh. From these clothes as well as from the belongings duly proved on record it stands that they belongs to deceased Attar Singh.
70. PW26 Bhondu Singh is brother of deceased Attar Singh who also deposed on the lines of PW20 and stated that accused Mukesh was living on rent in the house of his deceased brother at Nathupura, Delhi. He and his other brother are living in their native village and there was 10 bighas agricultural land in the name of his deceased brother but before 5/6 years of the death of his brother he and his wife sold the said land and purchased a house in Nathupura and started living there. He stated that accused Mukesh who was living on rent in the house of his deceased brother developed illicit relation with accused Rajbiri and they both had beaten his brother and turned him out from his house. After receiving the information regarding the death of his brother he alongwith his brother Dharambir, Ram Pratap, Gopal and Ram 44 FIR No.: 17/2006 Kumar came to PP Burari where the police showed the photographs of a dead body and he identified the dead body in the photographs as of his brother Attar Singh. He got tattooed 'OM' and picture of Trishul in the mela of Sikri which is also admitted by PW24 that word 'OM' and picture 'Trishul' were tattooed in the mela of Sikri. He has further admitted that word Attar Pal was tattooed on his right arm. He further admitted that he got a tattoo of work 'OM' and picture of Hanuman on his arm. He stated that since their cast is Pal, therefore his deceased brother had go tattooed his name Attar Pal instead of Attar Singh. He stated that he identified the dead body of his brother on the basis of said identification marks. During his cross examination this witness has stated that many persons get Trishul & OM tattooed on their arms but he has further stated the he identified the dead body of his brother in the photographs after seeing his face and hairs of the chest and even photographs were shown to him in the court and he stated that 45 FIR No.: 17/2006 hairs on chest are clearly visible in the photographs.
71. PW28 Ramesh Chand is one more witness who is brother of accused Rajbiri. He also identified the photographs of dead body of Attar Singh and stated that brothers of Attar Singh were also called in the PP. The brothers of Attar Singh also identified the dead body. PW Ramesh Chand is also cross examined regarding the identification of the dead body. He stated that from the photographs the underwear which he was wearing was stitched by Mukesh was identified by Rajbiri and on his hand Attar Pal was written which his brother identified. He stated that they also identified the dead body but the face of the dead body was not recognizable and therefore his brothers were called to identify the name on the hand which was written as Attarpal since they used to call him Attar Singh, therefore there was slight confusion on this issue and his brothers were called and they identified and submitted that Attar Pal was written on his hand. 46 FIR No.: 17/2006
72. PW36 Sh. Pratap Singh is one more witness who identified the dead body in the photographs and he stated that on his arm the name of Attar Pal was tattooed which was got tattooed in the fair of Skiri Devi in his presence. The word 'OM' and picture of Trishul were also tattooed on his arm. This witness has denied the suggestion that he had wrongly identified the photograph of deceased Attar Pal and he had not identified Attar Singh in any manner.
73. So far as PW38, PW40, PW42, PW43 are concerned, then these are police officials in whose presence the witnesses have identified the photographs of the dead body and nothing material has come out of the cross examination of these witnesses.
74. PW41 is MM who conducted the TIP of the clothes and belongings of the deceased and is a material link evidence. So far as the identification of dead body is concerned, then for the same PW20, PW 26 and PW28, PW36 are the relatives of the deceased 47 FIR No.: 17/2006 and all of them duly identified the dead body in the photographs before the police as well in the court and they have stated that word 'OM' and picture of Trishul were tattooed alongwith the name of Attarpal on the arm of the deceased. They have also cross examined by the counsel for the accused on this point but nothing material has come out from their cross examinaation regarding the identity of dead body. Similarly, PW24 Inspector Singh and PW37 Ram Prasad and PW39 Kuldeep Kumar are the workers who were working in Sai Industries alongwith Attar Singh and they have also identified the clothes and other articles of deceased Attar Singh which were recovered at the instance of accused Mukesh and thus further proved the case of the prosecution that dead body was of deceased Attar Singh which was found in unknown condition at Prakritik Farm House road Samaypur, Badli near Paddy 'phoos' (remnants).
Disclosure of accused and recovery of the 48 FIR No.: 17/2006 articles/clothes of deceased at the instance of accused:
75. The witnesses to this circumstantial evidence are PW10, PW19, PW20, PW26, PW27 , PW28 PW38, PW40, PW42, PW43.
76. The next circumstantial evidence is the disclosure statements Ex.PW20/B made by the accused Mukesh and Ex. PW20/F made by the accused Rajbiri. Though the disclosure statement made by an accused in police custody is not admissible in evidence but there is an exception to this rule which says that if in consequence to the disclosure statement recovery of fact or thing is made then that part of disclosure statement is admissible in evidence. Witnesses to the disclosure statement are PW10 SI Dharshan Singh, PW19 Ex. Ct. Ajit Singh both of them stated that accused Mukesh made a disclosure statement in their presence. Both both these witnesses PW10 and PW19 have not stated anything about the recovery of anything or fact made in 49 FIR No.: 17/2006 consequence to that disclosure.
77. PW20 is Dharambir brother of deceased. This witness has proved the disclosure statement made by the accused persons. He stated that after disclosure, accused Mukesh took them at some distance about 50 ft. away from the place and pointed out the place where he had hidden the clothes, tiffin, shoes etc of his deceased brother. Initially on this point this witness was at bit hesitant but subsequently when he was cross examined by ld. APP for the state he stated that accused pointed out towards bushes and towards a ditch and took out a dirty cloth thaila from which a shirt of cream colour checkdar, a dirty Tshirt and a tiffin of stainless were recovered. A dirty khese having blood spot was also recovered and a muffler of red and black colour in design a reddish colour seater of half arm, a red and green colour checkdar shirt, a green colour pant and another pant of grey colour having spots of grease and a white shirt was also recovered at the 50 FIR No.: 17/2006 instance of accused Mukesh. He further deposed that the police took the same into possession and sealed in parcels vide seizure memo Ex. PW20/G. He further proved the clothes and belongings of the deceased as Ex.P1 to Ex.P12. Nothing material has come out of the cross examination of this witness and even no suggestion has been given to this witness that at the instance of accused persons, no recovery was made.
78. PW26 Bhondu Singh is also brother of deceased who deposed that accused made confession in his presence Ex. PWPW20/B and Ex.PW20/F. This witness initially was also hesitant but subsequently he deposed that accused pointed out to the place in a vacant plot near Prakritik Farm House where a heap of 'Puaal' was lying and told/disclosed before them that on 24.12.2005 he and Veerpal had murdered Attar Singh by hitting a brick and they had hit brick on his face in such a manner to deface his face with a view to hide his identity. He duly proved the pointing out memo 51 FIR No.: 17/2006 as well as site plan. He further stated that accused took the police party to the place where he hid the clothes of the deceased. This witness further identified the clothes of the deceased and other belongings which were taken out by the accused. No suggestion has been given to this witness that accused never pointed out to the place of occurrence in his presence or that nothing was recovered at the instance of the accused in his presence. Though in his cross examination he stated that he cannot tell the date, month when the accused were arrested by the police but he denied the suggestion that he is deposing falsely being the brother of the deceased.
79. So far as the disclosure is concerned, then both PW20 and PW26 have admitted disclosure statement made by the accused persons in their presence. Both have also admitted that accused pointed out to the place where the murder of the deceased has been committed and also to the place where they 52 FIR No.: 17/2006 had hidden the clothes etc. of the deceased person. In his cross examination, PW20 has denied the suggestion that he was not in good terms with his deceased brother and he had visited his house only after his death. PW20 further admitted that accused Rajbiri was not arrested in his presence but he stated that he does not know whatever she disclosed to the police after her arrest but previously he stated that accused Rajbiri also made disclosure statement in his present and has stated about her disclosure statement. No suggestion has been given to him that he is deposing false in this regard or that accused did not make any disclosure statement in his presence. Similarly, PW26 Bhondu Singh also admitted that he was not in talking terms with the deceased and he refused to keep with him as he sold all his properties. So far as the disclosure made by the accused persons are concerned, then no suggestion has been given to PW26 that the disclosure statement was made in his presence or he is 53 FIR No.: 17/2006 deposing falsely in this regard or that accused had not made their confession in his presence.
80. PW27 is neighbour of accused Rajbiri. Though this witness has not fully supported the case of the prosecution but it is well established principle of law that as much as of his statement wherein he supported the case of prosecution is admissible in evidence. He stated that it is correct that in the month of December, 2005 it came to his notice that husband of Rajbiri is missing from his house.
81. PW28 is Sh. Ramesh Chand, brother of accused Rajbiri. He is not the witness of recovery and therefore, he has not stated regarding the recovery made at the instance of accused. However, he identified the dead body of Attar Singh in the photographs shown to him by the police. From the testimony of witness PW20, PW26 it is clear that accused Mukesh and Rajbiri made disclosure statements and subsequent to their disclosure statement, accused 54 FIR No.: 17/2006 Mukesh also got recovered clothes of the deceased which have been duly identified by PW24, PW37 and PW39 not only before the police but in TIP proceedings Ex.PW41/A and PW41/B and also in the court.
Extra judicial confession:
82. There is no doubt that an extra judicial confession must satisfy the requirements of section 24 to 26 of the Evidence Act and it has to be construed strictly. Such a piece of evidence must be voluntary and has to be proved like any other fact.
In State of A.P. Vs. E. Satyanarayana MANU/SC/0743/2009, Hon'ble Supreme Court of India held that " In Rao Shiv Bahadur Singh Vs. State of Vindhya Pradesh MANU/SC/0053/1954: 1954CrilJ910 and Maghar Singh Vs.State of Punjab MANU/SC/0152/1975 :
AIR 1975 SC 1320, this court held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence.
Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and 55 FIR No.: 17/2006 voluntarily made, then conviction can be found on such evidence alone. In Narayan Singh Vs. State of M.P. MANU/SC/0086/1985 : 1985CRilJ1862 this court cautioned that it is not open to the court trying the criminal case to start with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extra judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of prosecution based upon such a confession. In Kishore Chand Vs. State of H.P. MANU/SC/0374/1990 : 1990CriLJ2289 this court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity.
However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inductment, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the 56 FIR No.: 17/2006 person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Rai Vs. State of Haryana MANU/SC/0010/1991 : 1990 CriLJ2643. After referring to the judgment in Piara Singh Vs. State of Punjab MANU/SC/0119/1977 :
1977CriLJ1941, this court in Madan Gopal Kakkad Vs. Naval Dubey MANU/SC/0509/1992 : (1992) 2SCR921 held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis of conviction even without corroboration".
In Velayuda Pulavar Vs. State by Sub Inspector of Police MANU/SC/0711/2009 Hon'ble Supreme Court of India held that "In the instant case, the extra judicial confession was made before the Village Administrative Officer who is not a stranger to the first accused and he knew him for quite sometime. The evidence on record clearly establishes that Ex.P1 was recorded by the Village Administrative Officer PW1 in the Panchayat Office in the presence of many persons. The evidence of PW3 also corroborates the version of PW1 that the present appellant made extra judicial confession (Ex.P1) in the Pachayat Office and he is one of the attestors to Ex.P1. So far as plea relating to corroboration is concerned, if the court looks for such corroboration of a judicial confession or an extra judicial confession, same need not be in 57 FIR No.: 17/2006 material particulars. It can be and will have to be only corroboration in general. Each and every piece of information mentioned in the extra judicial confession need not be corroborated by independent evidence. It is well settled that conviction can be recorded solely on the basis of extra judicial confession if it is found to be credible and worthy of acceptance. PW1's evidence coupled with that of PW3 makes the position clear that there was a voluntary extra judicial confession made by the appellant before the Village Administrative Officer (PW1)".
In Shiva Karam Payaswami Tewari Vs. State of Maharashtra MANU/SC/0059/2009 Hon'ble Supreme Court of India held that "Criminal -
Conviction - Sentence - Extra judicial confession
- Appeal against - Sections 302, 321 and 201 of the Indian Penal code, 1860 - Accused convicted by trial court on basis of extra judicial confession made before PW1 - High Court dismissed the appeal - Hence present appeal - Held, not necessary that witness should speak the exact words but there cannot be vital and material difference - court to satisfy that extra judicial confession was voluntary and without any coercion and undue influence - Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused - if court believes witnesses before whom confession is made and is satisfied that confession 58 FIR No.: 17/2006 was voluntary basing on such evidence, conviction can be founded - Confession should be clear, specific and unambiguous - Confession not defined in Evidence Act - Confession is a statement made by accused admitting the offence or facts which constitute the offence - statement includes both oral and written statement - Communication is not a necessary ingredient to constitute confession - Admissions and confessions are exceptions to hearsay rule - Extra judicial confession was not made to a stranger but to a friend - Trial Court and the High Court rightly acted upon the extra judicial confession - Background in which assault was made shows section 302 IPC has no application - Assault made in course of sudden quarrel without premeditation
- Accused not armed at relevant point of time - Conviction altered to section 304 part II IPC - Appeal partly allowed".
It has been further held that "We shall first deal with the question regarding claim of extra judicial confession. Though it is not necessary that the witness should speak the exact words but there cannot be vital and material difference. While dealing with a stand of extra judicial confession, court has to satisfy itself that the same was voluntary and without any coercion and undue influence. Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused. Where there is material to show animosity, court has to 59 FIR No.: 17/2006 proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made. It is not invariable that the court should not accept such evidence if actual words as claimed to have been spoken are not reproduced and the substance is given. It will depend on circumstance of the case. If substance itself is sufficient to prove culpability and there is no ambiguity about import of the statement made by accused, evidence can be acted upon even though substance and not actual words have been stated. Human mind is not a tape recorder which records what has been spoken word by word. The witness should be able to say as nearly as possible actual words spoken by the accused. That would rule out possibility of erroneous interpretation of any ambiguous statement . If word by word repetition of statement of the case is insisted upon, more often than not evidentiary value of extra judicial confession has to be thrown out as unreliable and not useful. That cannot be a requirement in law. There can be some persons who have a good memory and may be able to repost exact words and there may be many who are possessed of normal memory and do so. It is for the court to judge credibility of the witness's capacity and thereafter to decide whether his or her evidence has to be accepted or not. If court believes witnesses before whom confession is made and is satisfied that confession was voluntary basing on such evidence, conviction can be founded. Such confession should be clear, 60 FIR No.: 17/2006 specific and unambiguous".
It has been further held that "The expression' confession' is not defined in the Evidence Act, 'Confession' is a statement made by an accused which must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. The dictionary meaning of the word 'statement ' is "act of stating; that which is stated; a formal account, declaration of facts etc.". The word 'statement' includes both oral and written statement. Communication to another is not however an essential component to constitute a 'statement'. An accused might have been over heard uttering to himself or saying to his wife or any other person in confidence. He might have also uttered something in soliloquy. He might also keep a note in writing. All the aforesaid nevertheless constitute a statement. If such statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. This very question came up for consideration before this court in Sahoo Vs. State of Uttar Pradesh MANU/SC/0071/1965 :
1966CriLJ68. After referring to some passages written by well known authors on the "Law of evidence" Subba Rao, J. (as he then was) held that "communication is not a necessary ingredient to constitute confession". In paragraph 5 of the judgment , this court held as follows:
....Admissions and confessions are exceptions to the hearsay rule. The evidence act places them in 61 FIR No.: 17/2006 the category of relevant evidence presumably on the ground that as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession goes not to depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession. As the case may be........if, as we have said, statement is the genus and confession is only a subspecies of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt".
83. The sole witness of the prosecution regarding this circumstantial evidence is PW30 Sh. Rajbir @ Raju. This witness has stated in the court that the he knows the accused Mukesh present in the court as accused used to do the tailoring work and he is also doing the tailoring work. The accused was doing tailoring job at the house of Kadir Vihar. He used to visit him at his shop for getting overlock stitching of the pants. He stated that he 62 FIR No.: 17/2006 does not remember the exact date, month and year but it is a matter of about three years ago, the accused disclosed him that he had committed the murder of the husband of accused Rajbiri and due to this reason he is committing mistake in stitching and over locking the pants. He disclosed this fact on the mistakes committed by him on the stitching and over locking work of the pants. He further stated that he did not disclose this fact to anybody as he was frightened and thereafter police asked him and he disclosed this fact to the police. He further stated whatever he deposed in the court he had stated same before the police. He duly proved his statement u/s 164 Cr. P.C. as Ex. PW30/A. PW30 has been cross examined at length but nothing material or incriminating to prosecution has come out of his cross examination.
This witness stated that shop of Mukesh is situated near his house and it will take 510 minutes on foot in reaching his shop. He stated that there was no fix time or the day when he used to visit 63 FIR No.: 17/2006 his shop and it depends upon the work. He stated that he did not inform the police on 100 number nor went to the PP Burari or to the PS Timarpur for disclosing the fact as told to him by the accused. He had also not disclosed the above said fact to the Pradhan of their locality. He further admitted that the brothers of accused Rajbiri is living in the locality but he did not disclose this fact to them also. He stated that he did not disclose to anybody else. He has denied the suggestion that being tutored by the police he is deposing falsely. It may be mentioned that the statement of this witness u/s 164 Cr. P.C. was also got recorded by the IO wherein he stated same facts before the Ld. MM. He further gave the reason that the accused disclosed this fact to him due to the fact that accused was committing mistakes in stitching and overlocking. The statement of PW30 is trustworthy, cogent and inspires confidence. There is no reason as to why the IO will plant him when IO had all the other link evidence i.e motive of crime 64 FIR No.: 17/2006 identification of dead body as before him. Rather it was safe for the IO to overlook this witness but he has not done so. PW30 has duly supported the case of the prosecution and in his cross examination also nothing material has come out which can shake the veracity of this witness. As such prosecution has been able to prove the extra judicial confession made by the accused to PW30.
Motive of Crime:
84. The witnesses to this circumstantial evidence are PW1, PW16, PW25, PW20, PW26, PW28, PW29, PW33, PW31, PW32, PW38, PW40, PW42 and PW43.
85. As per the prosecution case, the motive of the crime i.e. murder of deceased Attar Singh was for the reasons that accused Mukesh and Rajbiri had illicit relation between them.
86. PW1 Dr. Vijay Laxmi Tyagi deposed that accused lady i.e. Rajbiri who was correctly identified by her in the court had visited to her clinic for her pregnancy test. She came at her clinic 65 FIR No.: 17/2006 for about three times and she found positive test of her pregnancy.
She further stated that accused lady did not want her pregnancy and wanted to get her abortion. She did not perform any abortion upon her. She further stated that accused lady disclosed her name as Rajeshwari and she made entry in her OPD register on 8.6.2005 at serial no.6. She further proved her OPD register. This witness stated that the lady who came at her clinic her name was Rajeshwari but in the court she has duly identified the accused Rajbiri who had visited at her clinic and her name is Rajeshwari. She further stated that as per the entry at serial no.6 she does not remember the time of her visit but she had come for treatment of abdomen pain and she got done urine test of the patient. This witness further in her cross examination stated that she has not brought the report as she does not keep the record of the report and the report was handed over to the patient. This witness also admitted that she had not mentioned about the urine test in the 66 FIR No.: 17/2006 register at serial no.6 Ex.PW1/B and is only regarding the abdomen pain but oral testimony of this witness cannot be ignored. She has further admitted that accused lady used to frequently visits her clinic for getting medicine etc for fever. She stated that she is not a gynecologist but she denied that she is not competent to test a patient for pregnancy. It may be mentioned that it is not only gynaecologist doctor who can do pregnancy test but other doctors like a simple physician can do urine test for pregnancy. Nothing material has come out of cross examination of this witness. Why doctor PW1will falsely depose against the accused or will falsely implicate her has not been explained by the counsel for the accused. Even from the testimony of PW1 she has clearly deposed in the court that she does not maintain any record of the report or any payment receipt which shows that witness is not deposing falsely in the court.
87. PW16 is the husband of PW1. This witness has further 67 FIR No.: 17/2006 stated that his wife is running a clinic under the name and style of Anu Clinic at main market Budh Bazar, Nathupura, Delhi. On 12.6.2006 the police of PS Timarpur came to the clinic and received the patient register of the clinic which contained treatment of Rajeshwari on 8.6.2005.
88. PW20 is the brother of deceased who stated in his examination in chief that his deceased brother told him about the illicit relations of Rajbiri and Mukesh but in his cross examination this witness stated that he never himself saw Mukesh and Rajbiri in objectionable condition from his own eyes. He further denied that his brother never told him about the illicit relations between accused Mukesh and Rajbiri.
89. PW25 is LDC from the office of Sub Registrar and this witness has proved that house at Nathupura is in the name of Rajbiri as deposed by other witness that deceased Attar Singh had purchased this house in the name of his wife Rajbiri. 68 FIR No.: 17/2006
90. PW26 is Sh. Bhondu Singh, brother of of deceased and this witness has also stated that he himself had not seen both the accused in compromising position but his brother had disclosed about the illicit relations between them.
91. PW28 is Sh. Ramesh Chand brother of accused Rajbiri who also stated that Attar Singh told him about the illicit relations between accused Mukesh and Rajbiri. He further stated that in the year 2003 or 2004, Attar Singh went to live in his village and thereafter he came back in the year 2005 and started doing job in the factory in Burari and from the factory register proved on record as Ex. PW21/A. Attar Singh started doing job from September 2005 and therefore, the factum of pregnancy of the accused Rajbiri in June2005 support the case of prosecution that the accused Rajbiri and Mukesh had illicit relations. PW28 further stated that when Attar Singh told him about the illicit relations between the accused, he alongwith his brother intervened and got 69 FIR No.: 17/2006 vacated the rented room from accused Mukesh. In his cross examination this witness stated that accused Mukesh was residing in their house as a tenant since MayJune, 2001 and he deposed that when Attar Singh came back he had suspicion on Rajbiri and Mukesh and therefore, he asked Mukesh to vacate the room to which Mukesh refused but thereafter Attar Singh told him and he also asked Mukesh to vacate the room but accused refused him also and they had a verbal altercation for the same. This witness has also admitted in his cross examination that he never saw Rajbiri in compromising position with Mukesh and he never doubted on them. From his testimony it is clear that this witness is also truthful. All these witnesses i.e. PW20, PW26 and PW28 all have admitted before the court that they have never saw Rajbiri and Mukesh in compromising position before them. But in cases like this where both the accused persons had illicit relations and the accused Rajbiri was also married and having two children, it 70 FIR No.: 17/2006 can never be possible that as they were carrying on their affairs before anybody. Rather they would be discreet in their relations as in the present case so that nobody could have any suspicion on them. Merely because they were never seen in compromising position by PW20, PW26 and PW28 is no ground to discard the testimony of these witnesses.
92. PW29 is one more witness who had deposed that accused Mukesh used to do tailoring work in the rented room in the house of accused Rajbiri and he had seen only a quarrel between Rajbiri and Mukesh at the time of vacating the rented room in the house of Rajbiri. Though this witness has denied that accused Mukesh and Rajbiri had illicit relations but he had admitted that rented room in the house of accused Rajbiri was got vacated from Mukesh.
93. PW27 is one Chiranjee Lal who used to bring milk from the house of Rajbiri also. This witness also seen the accused 71 FIR No.: 17/2006 Mukesh in the house of Rajbiri. The accused persons in their statement u/s 313 Cr. P.C. have also admitted that accused Mukesh was a tenant in the house of accused Rajbiri.
94. PW33 is Sh. Rattan Singh is one more witness who gave his one shop on rent to accused Mukesh when he vacated the shop from the house of accused Rajbiri. He stated that he had seen once or twice Rajbiri coming in his shop to meet accused Mukesh. From the statement of this witness also it is clear that accused Rajbiri used to visit Mukesh even after when he vacated the shop of her house. PW38, PW40, PW42, PW43 are the police officials who conducted the investigation and recorded the statement of these witnesses and have deposed whatever happened. Nothing material has come out of their cross examination except some minor discrepancies which does not go to the root of the case.
95. In this case PW31 and PW32 are two witnesses who 72 FIR No.: 17/2006 purchased the house from Veerpal. PW31 has stated that he purchased the house from Veerpal in February, 2006 and is residing with his family since 21.2.2006. Thus, the motive of the accused is also proved by conduct of one coaccused Veerpal who sold his house and went with his family to somewhere else after committing murder of Attar Singh in December, 2005. The FSL report duly proved on record as Ex.PW44/A to Ex. PW44/D states that on the khese blood spots were found which were of A group. Similarly on the brick the human blood of A group was detected. So far as the gauze piece and scalp hair is concerned, then no reaction or inconclusive marks are given on report Ex PW44/D and Ex. PW44/C and from Ex. PW44/B and Ex. PW44/D it stands proved that on brick which was lying near dead body human blood of A group was found and from the khese which was having blood spot which belonged to deceased recovered subsequently to the disclosure statement of the accused blood group A was 73 FIR No.: 17/2006 detected. Khese belongs to deceased which shows A group. Similarly, the brick on which the blood was detected was having A group which proved the fact that blood of deceased was on the brick also and the death was caused with this brick i.e. weapon of offence.
96. So far as the conspiracy is concerned, then there can not be any direct evidence of conspiracy and the same can be inferred only from the conduct of the accused persons and the evidence brought on record regarding the conduct of accused. Accused Rajbiri for two days did not lodge any report regarding missing of her husband. Subsequently, when she lodged DD no.7 with Police Station Samaypur Badli Ex. PW17/A, there also she did not give correct description of her husband. Even after lodging of DD, she did not made any enquiry from the Police Station regarding her husband as is clear from the testimony of PW15. Counsel for the accused submitted that if accused had got any wrong intention, she 74 FIR No.: 17/2006 would not have lodged missing report but the ld. APP for the state submitted in order to save themselves, accused intentionally lodged DD. Submissions of ld. APP for the state bears force. From the statement of PW15 it is also clear that after lodging DD accused Rajbiri never visited to police station for making any enquiry regarding her report. Subsequently after the identification of the dead body, the accused made their disclosure statement. Though the disclosure statement made to the police is not admissible but in consequence of that disclosure statement, the recovery has also been effected at the instance one of the accused. Thus, the conspiracy between the accused persons to commit the offence has been duly proved by the prosecution. So far as the causing disappearance of evidence or giving false information to screen offender is concerned, then ingredients of section 201 of IPC has been duly proved by the prosecution against both the accused persons. As not only accused Mukesh 75 FIR No.: 17/2006 tried to disfigure the face of the dead body to screen its identity, but accused Rajbiri also gave wrong description to the police officials regarding her husband.
97. In view of above said discussion, prosecution has been fully able to prove its case against both the accused beyond the shadow of doubt. As such, both the accused persons are convicted of the of offence u/s 120B of IPC. They are further convicted of the offence u/s 302/120B of IPC and u/s 201read with section 120 B IPC.
(MADHU JAIN) ASJ03/NORTH/DELHI Announced in the open court today i.e. 24.2.2010. 76 FIR No.: 17/2006
FIR No.: 17/2006 Police Station: Timarpur State Vs. Mukesh Etc. 24.2.2010 Present: Substitute APP Sh. I.U.H. Siddqui for the state.
Both the accused in J/C. Ms. Savita Kasana, amicus curiae for the accused Rajbiri.
Ms. Sadhana Bhatia, amicus curiae for accused Mukesh. Arguments heard.
During the course of the arguments it transpired that there are some witnesses who could not be cross examined for accused Mukesh. Counsel Ms. Sadhna Bhatia for accused Mukesh submits that they are formal in nature and further submits that their cross examination recorded for accused Rajbiri be also read as cross examination for accused Mukesh and they need not to be summoned again.
Vide separate order dictated an announced in the open court, both the accused persons are convicted of the of offence u/s 77 FIR No.: 17/2006 120B of IPC. They are further convicted of the offence u/s 302/120B of IPC and u/s 201 read with section 120B IPC. To come up for arguments on sentence on 03.3.2010.
(MADHU JAIN) ASJ03(N)/DELHI 24.2.2010