Delhi District Court
State vs Jallandhar Kumar And Anr. on 27 August, 2015
SC No.:72/12
State Vs.Jallandhar Kumar and anr.
FIR No: 145/12
PS: Palam Village
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS
JUDGE01, DWARKA COURTS, NEW DELHI
In the matter of :
SC No. : 72/2012
FIR No. : 145/12
Case ID No. : 02405R0210132012
Police Station : Palam Village
Under Section : 302/34 of the Indian
Penal Code, 1860.
Fresh case received : 22.09.2012
by way of assignment
on
Reserved for : 29.07.2015
judgment on
Judgment announced : 19.08.2015
on
State
Versus
1. Jallandhar Kumar @ Nakta
S/o Sh.Jugeshwar Mahto
R/o village Fatehpur
Distt.Shivhar Bihar
Present Address:
H. NO. 1121, Badiyal Mohalla
near Shiv Mandir Palam village,
New Delhi
2. Sanjay Saha @ Sanju
S/o Shri Ram Saha
SC NO.: 72/12 1/65
SC No.:72/12
State Vs.Jallandhar Kumar and anr.
FIR No: 145/12
PS: Palam Village
R/o Village Jagdishpur
Post Office Khudai Bagh
P.S. Khera Distt.Chhapra Bihar
Present Address:
H. No 1120, Badiyal Mohalla
Near Shiv Mandir, Palam Village,
New Delhi
...Accused persons
JUDGMENT
1. The prosecution story, in brief is, that on 04.06.2012 at 8.55 a.m., an information was received in the police station vide DD No.16A stating that one man is lying unconscious at house no.1112, Badiyal Mohalla behind Shiv Mandir, Palam Village. On receipt of information, ASI Jagdish Rathi alongwith Ct.Rajesh reached at H.No.WZ1121, Badiyal Mohalla near Shiv Mandir, Palam Village. Investigating Officer Inspector Mahender Singh also reached the spot and found the dead body of a man aged about 40/42 years lying on the floor of one tenanted room of the house. He found injury marks on his face, left eye and head and blood from nose was lying on the floor. One shirt button was also lying near the dead body. During the course of local inquiry, it was SC NO.: 72/12 2/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village revealed that dead body was of a person named Dilip Swain, S/o Sh.Jagannath Swain, R/o Village Indas, P.S. Bijapur Distt.Jaitpur, Orissa. IO also came to know that deceased was working as helper of the plumbers of his near by villages and deceased had no fixed place of residence in Delhi. Crime team of South West District was called at the spot and scene of crime was inspected and photographed. Neither finger prints nor eye witness was found at the spot. The dead body was sent to DDU Hospital through Ct.Rajesh for post mortem. Thereafter, FIR No.145/12 PS Palam Village was registered under section 302 IPC.
2. During the course of investigation, IO prepared the site plan and seized a white button of shirt, blood in gauze and blood stained pieces of floor. IO also recorded the statements of Sh.Samandar Singh, landlord of the room of accused Jallandhar where deceased was found lying on the floor and Sh.Parshant Nayak, a distance relative of deceased under section 161 Cr.P.C. Sh. Parshant had stated that both accused were quarreling with the deceased over theft of Rs.300/ and that he had last seen deceased on 03.06.2012 at about 9.00p.m at the room of SC NO.: 72/12 3/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village accused Jallandhar with both accused persons having liquor.
3. On 06.06.2012 at DDU Hospital mortuary, the deceased's body was identified by his brother Sanjan Kumar Swain and his brother in law Sh.Pratap Chand Swain.
4. As per the postmortem report, the cause of death was due to craniocerebral injuries (head injury) caused by hard, forceful impact over the head and the manner of death was homicidal.
5. On the basis of secret information, accused Jallandhar Kumar @ Nakta and Sanjay Saha @ Sanju were arrested and they had disclosed the reason for murdering deceased as he was not returning their money.
6. The shirt worn by accused Jallandhar at the time of committing crime and having button similar to the button recovered from the spot was seized. The FSL report with regard to shirt of accused Jallandhar and the button found at the spot was that seized button was of SC NO.: 72/12 4/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village the seized shirt of accused Jallandhar. Accordingly, both accused persons were charge sheeted for the offence under section 302/34 IPC.
7. After completion of investigation, accused persons were charge sheeted for the offence under section 302/34 IPC The Ld.MM after summoning the accused persons and after complying Section 207 Cr.P.C. by supplying copy of chargesheet and documents had committed the case to the court of Sessions.
8. After committal of case to the court of Sessions, arguments on the point of charge were heard and from the material on record, charge against accused persons was framed under section 302/34 IPC to which accused persons had pleaded not guilty and claimed trial.
9. At trial, prosecution has examined in all 21 witnesses.
10.PW1 Sh.Parshant Nayak deposed that deceased Dilip was his relative and he was working as helper of plumber. PW1 deposed that on 03.06.2012, accused Jallandhar had called deceased Dilip from his house and SC NO.: 72/12 5/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village they had gone at the room of accused Jallandhar. PW1 deposed that accused Jallandhar had made allegations against deceased Dilip that he had stolen sum of Rs. 300/ from his pocket. However, deceased Dilip had denied the same and thereafter, a quarrel had taken place between Dilip and accused Jallandhar. PW1 deposed that later on deceased Dilip had admitted that he had stolen the above said rupees and he promised to return the same after earning the same from his employment with Tapan. PW1 deposed that thereafter, accused Jallandhar had asked deceased Dilip to accompany him to his room for drinking liquor. PW1 deposed that when he visited at about 8.45p.m. at the room of accused Jallandhar, he saw that after taking liquor, accused Jallandhar, Sanjay and deceased Dilip were quarreling over Rs.300/ and Rs.10/ and at around 9.00p.m., after being assured by accused Jallandhar and Sanjay that deceased Dilip will reach his room after sometime, he left their place. PW1 deposed that deceased Dilip did not return for the entire night and on the next morning, accused Jallandhar informed him that deceased Dilip was lying unconscious in his room. PW1 deposed that thereafter, he accompanied his brother SC NO.: 72/12 6/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Parbhat Nayak and went to the room of accused Jallandhar and there, they found that room was bolted from outside and on opening the same, they found that deceased Dilip was lying therein on the ground and blood was coming out from his mouth. PW1 deposed that thereafter he made a call to the police from his mobile no. 997112662. PW1 deposed that both accused persons i.e. Jallandhar and Sanjay had fled away from the spot.
11. In his cross examination, PW1 deposed that in the morning, only accused Jallandhar met him. PW1 denied that deceased Dilip was in the habit of consuming heavy liquor and quite often, he was found lying on streets and police used to direct him (PW1) to take care of deceased Dilip. PW1 further denied that no verbal duel had taken place between deceased Dilip and accused persons with regard to Rs.300/ and Rs.10/. PW1 denied that he did not visit the room of accused Jallandhar and did not witness any hot exchange of words between them. PW1 deposed that the adjacent room of neighbour was lying locked on the night of 03.06.2012 as well as on the next morning. PW1 denied SC NO.: 72/12 7/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village that he is a planted witness and deposing falsely at the instance of IO.
12.PW2 Sh.Partap Chandra Swain and PW3 Sh.Sanjay Swain, who happen to be relatives of deceased Dilip deposed that they received a telephonic call with regard to deceased Dilip and accordingly, they went to DDU Hospital where they identified the dead body of deceased Dilip vide identification memos Ex.PW2/A and Ex.PW3/A. PW3 deposed that after post mortem, dead body of deceased Dilip was handed over to him being his brother.
13.In their cross examination by counsel for accused persons, PW2 denied that he did not visit DDU Hospital to identify the dead body. PW3 deposed that his deceased brother Dilip was in the habit of taking liquor. PW3 denied that false and forged documents have been prepared by IO.
14.PW4 Sh.Samander Singh was the landlord of accused Jallandhar. PW4 deposed that one person was found lying dead in the tenanted premises of accused SC NO.: 72/12 8/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Jallandhar. PW4 deposed that he did not know the name of that person. PW4 deposed that police seized blood in gauze, pieces of the floor and one white button of shirt vide Ex.PW4/A to Ex.PW4/C. PW4 deposed that he noticed that blood was oozing out from the head near the ear of dead body. PW4 proved ten photographs of scene of crime vide Ex.PW4/D (colly). PW4 further deposed that on 06.06.2012, accused Sanjay was arrested by the police from Sec.1, Dwarka whereas accused Jallandhar was apprehended by the police from the spot.
15.In his cross examination by counsel for accused persons, PW4 deposed that accused Jallandhar was present at the spot, thereafter fled away from the spot. PW4 deposed that on 06.06.2012 police brought accused Jallandhar and Sanjay at the scene of crime and told him that accused Jallandhar and Sanjay were arrested by them from Sector1, Dwarka near Kali Mata Mandir. PW4 deposed that accused Jallandhar was staying in the front portion on rent, whereas he was staying at the back portion of the same premises. PW4 deposed that the premises no. 1121,Badiyal Mohalla, near Shiv Mandir, Palam Village, New Delhi is having two gates of entrance SC NO.: 72/12 9/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village i.e. One is from the street of the front portion and another is from the rear street to the rear portion. PW4 deposed that on the date of incident, he was having three tenants namely Munna, Jhallandar and Sunil in three separate rooms. PW4 further deposed that the tenanted room of accused Jhallandar was having a gate on the street. PW4 deposed that House no.1112 is situated at the distance of 5060ft from his house. PW4 deposed that he does not know who had called the police at 100 number. PW4 deposed that his signatures were obtained on 45 pages. PW4 deposed that he had not seen the contents before signing the same. PW4 deposed that police did not record his statement at any point of time.
16.On court questioning regarding enquiry made by police from him regarding the incident, PW4 deposed that he had signed the documents at his house. PW4 denied that accused Jallandar was arrested on 04.06.2012. He voluntarily deposed that accused Jallandhar had fled away from the spot on 04.06.2012 and was arrested on 06.06.2012. PW4 deposed that on 04.06.2012, accused Jallandhar was wearing a jeans pant and one light yellow SC NO.: 72/12 10/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village shirt. PW4 deposed that he did not hear any noise of quarrel in the night and had never seen deceased prior to the date of incident. PW4 deposed that accused Jhallandar was staying alone in the rented room. PW4 deposed that the rented room adjacent to the room of accused Jallandhar was lying locked as tenant had gone to his native place on account of holidays in the month of May. PW4 deposed that he is working with Delhi Jal Board and his duty hours were from 9.00a.m. to 5.00p.m. PW4 deposed that he attended the duty on 04.06.2012 and 06.06.2012 and used to leave his house at around 8.308.45a.m for his duty. PW4 denied that he had not joined the investigation at any point of time on 04.06.2012 or 06.06.2012 as he was on his duty or is a planted witness.
17.PW4 deposed that in the month of June 2012, he was having his duty at Tubewell in Palam village which was near to his house from 6.00p.m.to 6.00am. Therefore, on 04.06.2012 after returning from duty in the morning at 6.00a.m., he had joined the investigation. Same was the answer given with regard to 06.06.2012. PW4 denied that he is deposing falsely.
SC NO.: 72/12 11/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
18.PW5 HC Nihal Singh deposed that on 04.06.2012, he had joined the investigation of this case and he alongwith inspector Mahender, ASI Jagdish, Ct Rajpal and landlord Samender Singh went inside the room of accused Jallandhar, where the dead body was found lying. PW5 deposed that the number of the said premises was WZ1121, Badiyal Mohalla near Shiv Mandir Palam village, New Delhi. PW5 deposed that on 06.06.2012, he again joined the investigation of the present case with Inspector Mahender, Ct Om Parkash and Ct Raj pal. PW5 deposed that on receiving secret information, they reached JJ colony, Sector1, Dwarka near Mata Rani Temple. PW5 deposed that both accused namely Jallandhar Kumar and accused Sanjay were apprehended near the DDA park. PW5 proved the arrest of accused Jallandhar and accused Sanjay vide Ex.PW5/A and Ex.PW5/B. PW5 deposed that in pursuance of disclosure statement of accused Jallandhar, he got recovered his light yellow shirt, who also disclosed that the same was worn by him at the time of murder of Dilip and one button was broken down at the spot. PW5 deposed that they also noticed that one button was SC NO.: 72/12 12/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village missing from the shirt. PW5 proved the recovery memo of shirt of accused Jallandhar vide Ex.PW5/G. PW5 deposed that thereafter, both accused led them to the scene of crime and pointed out the place where they killed Dilip. PW5 deposed that both accused persons were medically examined. PW5 correctly identified accused Jallandhar and accused Sanjay present before the court.
19.PW5 identified the case property brought by the MHCM i.e. a blood stained one pant, one TShirt and one underwear worn by deceased Dilip vide Ex.P1((colly), one plastic container containing cemented material having brown stains vide Ex. P2, one plastic container containing white button having four holes which was found lying near the dead body vide Ex.P3 and one shirt which was got recovered by accused Jallandhar and at the time of recovery one button was missing vide Ex.P4.
20.In his cross examination by counsel for accused persons, PW5 deposed that public persons were present at the spot. He further deposed that Samander Singh and one of the relative was available at the spot and IO had made SC NO.: 72/12 13/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village inquiries from both of them and had recorded their statements. PW5 denied that accused Jhallandar was arrested on 04.06.2012. PW5 further denied that no disclosure statement was given by accused Jhallandar at any point of time or that no shirt was got recovered at the instance of accused Jallandhar as he was already in illegal custody since 04.06.2012. PW5 denied that no investigation was conducted on 06.06.2012 at the instance of accused Jallandhar. PW5 deposed that he remained associated with the investigation on 06.06.2012 from 2.00p.m10.00p.m. PW5 denied that nothing was recovered in his presence or he is deposing falsely at the instance of IO.
21.PW6 Constable Om Parkash deposed on the same lines as deposed to by PW5 HC Nihal Singh with regard to apprehension of accused persons. PW6 further deposed that on 20.06.2012, he deposited two pullandas at FSL, Rohini and after depositing, he handed over the receipt to MHCM.
22.In his cross examination by counsel for accused persons, PW6 deposed that he never visited the place i.e. SC NO.: 72/12 14/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village WZ1112, behind Shiv Mandir, Badiyal Mohalla,Palam Village, New Delhi during the investigation of this case. PW6 deposed that the landlord namely Samander joined the investigation with them on 06.06.2012. PW6 deposed that Samander was not made a witness in the disclosure statement though he was present there. PW6 denied that no disclosure statement was made by accused at any point of time or they have been falsely implicated in this case or that they were already in illegal custody at P.S Palam village and false documents have been prepared by the IO. PW6 denied that he is deposing falsely at the instance of IO.
23.PW7 Constable Rajpal deposed that on 04.06.2012 at about 10.00 a.m., he was present in the area of his beat no.6 of PS Palam Village when he received a call from police station and he was asked to reach at the spot i.e. WZ1121 near Shiv Mandir, Palam Village, New Delhi. PW7 deposed that at about 1.00 p.m. Inspector Mahender Singh handed over a rukka to him for getting the case registered. PW7 deposed that after getting the case registered, he handed over the copy of FIR and original rukka to Inspector Mahender. PW7 further SC NO.: 72/12 15/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village deposed on the same lines as deposed to by PW 5 HC Nihal Singh and PW6 Constable Om Prakash.
24.In his cross examination by counsel for accused persons, PW7 deposed that he was asked to reach at house no. 1112 near Shiv Mandir, Badiyal Mohalla near Shiv Mandir. PW7 deposed that no public person at Sector1 or Mata Rani Mandir was asked to join the investigation. PW7 denied that accused were already in illegal custody at PS Palam Village and all the documents have been falsely prepared at PS Palam Village to implicate the accused persons. PW7 denied that he is deposing falsely at the instance of IO being police witness and that nothing was recovered at the instance of accused and nothing was disclosed by them at any point of time.
25.PW8 Dr. B.N Mishra deposed that on 06.06.2012, he was posted as Medical Officer cum Forensic Expert, DDU Hospital, New Delhi. PW8 deposed that he conducted postmortem on the body of deceased Dilip Swain. PW8 had opined that cause of death was due to cranio cerebral injuries (head injury) caused by hard, forceful impact over the head and manner of death was SC NO.: 72/12 16/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village homicidal and all injuries were antemortem in nature and same in duration. PW8 deposed that the injury number three(i.e. Head injury) was sufficient to cause death in ordinary course of nature. PW8 deposed that the time since death was approximately two and half days prior to postmortem examination. PW8 proved his detailed report vide Ex. PW8/A. PW8 proved his subsequent opinion vide Ex.PW8/B.
26.PW9 ASI Ramwati is the duty officer of the present case. PW9 proved the registration of FIR No. 145/12 vide Ex.PW9/A.
27.In his cross examination by counsel for accused persons, PW9 denied that he was not duty officer on 04.06.2012.
28.PW10 Sh.Parshuram Singh, Asstt.Director, Physics, FSL Rohini, New Delhi deposed that on 20.06.2012, two sealed parcels sealed with the seal of MSG were received in the office of FSL, Rohini and on desealing and opening the same in his presence, one parcel was found containing one button and another parcel was found containing one full sleeves shirt. PW10 proved his report SC NO.: 72/12 17/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village vide Ex.PW10/A.
29.In his cross examination by counsel for accused persons, PW10 deposed that two buttons were found missing from the shirt. PW10 deposed that one button was received separately. PW10 admitted that the buttons which were examined by him are easily available in the market. PW10 denied that he prepared false report in connivance with police officials of PS Palam Village.
30.PW11 ASI Jagdish Rathi deposed that on 04.06.2012, he was on emergency duty from 8 a.m.to 8.00 p.m. PW11 deposed that on that day on receipt of DD No.16A handed over to him by Ct.Rajesh, he alongwith him reached at the spot i.e. House No. WZ1121, Badiyal Mohalla near Shiv Mandir, Palam Village where he found dead body of a male aged 4042 years lying in a room on the ground floor and he noticed the injury mark on eyebrow, lips and head of deceased. PW11 deposed that he also saw blood stains scattered near the dead body. PW11 deposed that in the meantime, Inspector Mahender Singh from PS Palam Village also reached at the spot. PW11 deposed that he handed over DD No.16A SC NO.: 72/12 18/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village to Inspector Mahender Singh. PW11 deposed that Inspector Mahender Singh called the crime team at the spot. PW11 deposed that Inspector Mahender Singh prepared rukka and handed over the same to Ct.Rajesh for getting the case registered. PW11 proved the preparation of site plan vide Ex.PW11/A. PW11 deposed that one button of white colour was found along the dead body.
31.In his cross examination by counsel for accused persons, PW11 deposed that the house no. mentioned in the DD No.16A was WZ1112. PW11 deposed that he did not meet the caller who had made the call regarding DD number. PW11 deposed that he did not go to the house number WZ1112. PW11 deposed that when he was going towards H.No.WZ1112, he saw a PCR Van going in front of him, therefore, he followed the same on his scooter and reached at House No.WZ1121, Badiyal Mohalla near Shiv Mandir, Palam Village. PW11 deposed that he does not have any information whether H.No.WZ1112 is in existence or not as he did not visit the said house. PW11 deposed that the place of incident falls behind Shiv Mandir. PW11 denied that he did not SC NO.: 72/12 19/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village notice any blood on the ground inside the H.No.WZ1121. PW11 denied that he was not present at the time of preparation of rukka. PW11 deposed that statement of landlord was recorded in his presence. PW11 denied that landlord Samander Singh was on duty on that day. PW11 deposed that he did not join investigation of this case except on 04.06.2012. PW11 denied that he never reached the spot at any point of time or that no proceeding was carried out in the case at the spot or that nothing was recovered or seized in his presence or that rukka was not prepared in his presence or that he is deposing falsely.
32.PW12 Constable Rajesh deposed that on 04.06.2012, he accompanied ASI Jagdish Rathi to the place of incident i.e.WZ1121, Badiyal Mohalla near Shiv Mandir, Village Palam, New Delhi. PW12 deposed that he took the dead body of deceased to DDU Hospital through a tempo. PW12 deposed that on 06.06.2012, postmortem was conducted on the body of deceased and after postmortem, dead body was handed over to brother of deceased. PW12 proved one sealed pullanda which was handed over to him by doctor vide Ex.PW12/A. SC NO.: 72/12 20/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
33.In his cross examination by counsel for accused persons, PW12 deposed that the address was mentioned in the DD entry alongwith the mobile number of caller, who had called at 100 number. PW12 deposed that he alongwith ASI Jagdish Rathi reached at WZ1112, Badiyal Mohalla behind Shiv Mandi, Palam Village. PW12 deposed that he does not know whether IO made a call to the caller or not. PW12 deposed that when he reached at WZ1112, Badiyal Mohalla, he found IO Jagdish Rathi, Inspector Mahender Singh and area beat constables. PW12 deposed that he noticed some blood stains at the spot i.e.at above mentioned address. PW12 denied that he was not part of the investigation at any point of time.
34.PW13 Constable Anil deposed that on 04.06.2012, he was posted in the office of Mobile Crime Team, SouthWest District, Sector9, Dwarka, New Delhi. PW13 deposed that on that day at about 11.00 a.m.he alongwith Incharge Crime Team ASI Khazan Singh, finger print proficient Ct.Pardeep and driver Ct.Jai Singh reached at the spot i.e. WZ1121, Badiyal Mohalla near Shiv Temple, Palam Village, New Delhi where ASI Jagdish alongwith SC NO.: 72/12 21/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Ct.Jagdish met them. PW13 proved ten negatives of the photographs of the place of incident vide Ex.PW13/A1 to Ex.PW13/A10.
35.In his cross examination by counsel for accused persons, PW13 deposed that he took photograph of two spots i.e.inside the room and of the gali. PW13 deposed that he did not verify the address of the second spot.
36.PW14 Constable Kailash proved on record the depositing of two sealed pullandas on 22.06.2012 with FSL, Rohini vide RC No.67/21/12.
37.In his cross examination by counsel for accused persons, PW14 deposed that said pullandas were not sealed in his presence.
38.PW15 ASI Khazan Singh deposed that on 04.06.2012, he was posted as Incharge of Mobile Crime Team/South West District, Sector9, Dwarka,New Delhi. PW15 deposed on the same lines as deposed to by PW13 Constable Anil. PW15 proved the scene of crime vide Ex.PW15/A. SC NO.: 72/12 22/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
39.In his cross examination by counsel for accused persons, PW15 deposed that at that time, 1012 neighbours and public persons were present there. PW15 deposed that no statement of any public person was recorded in his presence. PW15 denied that he did not visit the place of incident or that the report Ex.PW15/A was prepared while sitting in the office.
40.PW16 Constable Kartar Singh proved the delivery of three envelopes containing copies of FIR to ld.MM and concerned DCP.
41.PW17 Constable Hardeep Singh deposed that on 26.06.2012, he alongwith Inspector Mahender Singh went to the spot i.e. H.No.1121, Badiyal Mohalla, Palam Village, New Delhi. PW17 proved the scaled site plan vide Ex.PW17/A.
42.PW18 Dr.Rajendra Kumar deposed that on 20.06.2012, he was posted as Deputy Director, FSL, Rohini, Delhi. PW18 deposed that on that day, four sealed parcels were received with regard to present FIR. PW18 proved his SC NO.: 72/12 23/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village biological report vide Ex.PW18/A and his serological report vide Ex.PW18/B. PW18 deposed that after examination, remnants of the exhibits were sealed with the seal of RK, FSL, Delhi.
43.PW19 Retired Inspector Mahender Singh was the first investigating officer of the present case. PW19 reiterated the facts as mentioned in the charge sheet. PW19 correctly identified the case property i.e.the button which was found lying near the body of deceased and one light yellow shirt which was recovered at the instance of accused Jallandhar from the corner of the park and at the time of recovery, one button was missing.
44.In his cross examination by counsel for accused persons, PW19 admitted that there is no eye witness in the case. PW19 also admitted that he did not find any documentary proof regarding the tenancy of premises by accused Jallandhar. PW19 deposed that he had recorded the statement of landlord as a proof to show that accused Jallandhar was his tenant. PW19 deposed that he never visited house no.1112 mentioned in DD No.16A SC NO.: 72/12 24/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village as when he reached near the temple, he found lot of people gathered over there and they told him that that incident has taken place in house no.1121. PW19 deposed that 100 number call was made by Prakash, relative of deceased, who was also examined during the course of investigation. PW19 deposed that he does not know whether Samander Singh attended his duty on 04.06.2012 and 06.06.2012 but he had joined investigation on these dates. PW19 denied that Samander Singh was on duty on 04.06.2012 and 06.06.2012 and was not part of the investigation. PW19 admitted that no weapon was used in this case. PW19 deposed that he does not know whether deceased was a habitual drunker or not. PW19 Retired Inspector Mahinder Singh deposed that deceased was staying with his relative i.e. PW Prakash and sometimes he used to stay with the plumber with whom he was working. PW19 denied that he did not file the extract of DD entry as he had not gone for investigation on that day. PW19 deposed that on 06.06.2012, no public person was asked to join the investigation. PW19 deposed that he does not remember the name of the person, who made the call at 100 number but he was a distant relative of deceased.
SC NO.: 72/12 25/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village PW19 deposed that number of the caller is mentioned in DD entry. PW19 denied that mobile number is not mentioned in the DD entry and the same was deliberately concealed by him to strengthen the case. PW19 deposed that he did not make inquiries from the family members of accused Sanjay regarding the time when he reached at his home on the night of 03.06.2012. PW19 admitted that accused Sanjay was residing separately from accused Jallandhar with his family members. PW19 deposed that no witness was found by him during the investigation to the effect that any scuffle had taken place at he spot. PW19 denied that he did not record the statement of employer of deceased Dilip and his relative was not his employer. PW19 deposed that nothing was found by him at the spot regarding liquor being used by deceased or accused persons. PW19 denied that accused Jallandhar was apprehended on 04.06.2012 itself. PW19 deposed that during the course of investigation, he did not visit behind Shiv Mandir as when they were proceeding to the spot on receipt of DD then they met crowd near Shiv Mandir, who informed them that the dead body is lying in house no.1121. PW19 denied that accused persons were already in SC NO.: 72/12 26/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village illegal detention and they were falsely shown to be arrested from the Park at Sec.1, Dwarka. PW19 denied that he did not carry out investigation in proper and fair manner. PW19 denied that deceased was lying behind Shiv Mandir and public persons had taken deceased to the room of accused Jallandhar being known to deceased. PW19 further denied that it was accused Jallandhar who informed the police. PW19 further denied that accused Sanjay was in his room on the night of 03/04.06.2012.
45.PW20 HC Rattan Singh deposed that on 04.06.2012, he was posted at PS Palam Village as MHCM. PW20 proved the deposition of three sealed pullandas on 04.06.2012, one sealed pullanda and Rs.100 on 06.06.2012, three sealed pullandas on 07.06.2012 in the Malkhana vide Ex.PW20/A, Ex.PW20/B and Ex.PW20/C. PW20 further proved the deposition of seven sealed pullandas alongwith two sample seals by Constable Om Parkash in the office of FSL, Rohini on 20.06.2012 vide Ex.PW20/D, Ex.PW20/E and Ex.PW20/F. PW20 further proved deposition of one sealed pullanda alongwith one sample seal by Constable Kailash in the office of FSL, Rohini vide SC NO.: 72/12 27/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Ex.PW20/G and acknowledgment of case acceptance vide Ex.PW20/H.
46.PW21 Dr.Subhra Kumar Paul deposed that on 22.06.2012, he was posted as Sr. Scientific Officer (Chemistry), FSL, Rohini. PW21 deposed that on that day, one sealed polythene was received in FSL Rohini, Delhi with the seal of DFMT, DDU HOSPITAL and it was found to contain Exhibit1, kept inside a small glass jar. PW21 deposed that on chemical and GCHS examinations, exhibit1 was found to contain 'Ethyl alcohol" 37.6 mg/100 ml of blood. PW21 further deposed that the remnants of the exhibits were sealed with seal of SKP, FSL, Delhi.
47.No other witness was examined by the prosecution. Accordingly, prosecution evidence was closed.
48.After the closure of prosecution evidence, all incriminating evidence was put to accused persons separately u/s 313 Cr.P.C. Accused Sanjay stated that he was not at the spot on 04.06.2012 in the morning and was picked up in the evening of 04.06.2012 and since SC NO.: 72/12 28/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village then he was kept in illegal custody by the police and lateron falsely implicated in this case. Accused Jallandhar stated that deceased Dilip was lying unconscious behind Shiv Mandir in front of house no.WZ1112, Badiyal Mohalla, Palam Village and the neighbours brought him to his house being known to deceased as his friend and put him in his room. Accused further stated that he went to call his relative who was residing nearby. Accused Jallandhar further stated that he brought their relative to his room and thereafter, police was informed. Accused Jallandhar stated that he remained with the police officials since then and later on police officials implicated him in this case. Accused Jallandhar stated that the police officials first reached WZ1112 behind Shiv Mandir and from there on inquiry, they had come to his room. Accused Jallandhar further stated that the photographer took the photographs of WZ1112 and some photographs of his room. Accused persons stated that it is a false case and they are innocent and have been falsely implicated in this case.
49.Both accused refused to lead any defence evidence. Thereafter, the matter was posted for final arguments.
SC NO.: 72/12 29/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
50.I have heard Sh.Aditya Kumar, ld.Addl.PP for state and Sh.L.S.Gautam, counsel from legal aid for accused persons. I have also perused the material available on record.
51. It was contended by the counsel for accused persons that in the present case, there is no eye witness to the murder of deceased and the entire case of prosecution is based upon the circumstantial evidence. It was submitted that the chain of circumstances is not complete in the present case, from which inescapable conclusion can be drawn that it was only the accused persons who had committed murder of deceased Dilip and none else. It was further submitted by the counsel for accused persons that initial call given to the police was recorded vide DD no.16A and information given was that one person was lying unconscious at house no. WZ1112, Badiyal Mohalla, near Shiv Mandir, Palam village, New Delhi and this fact was also confirmed in the evidence of Pw11 ASI Jagdish Rathi. However, police never reached at house no. 1112 and had reached at the house of Jallandhar having number WZ1121. It was submitted that this evidence shows that deceased SC NO.: 72/12 30/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village was initially lying unconscious at house no. WZ1112 and lateron he was shifted to the house of accused Jallandhar as neighbours in the area knew that deceased Dilip was friend of accused Jallandhar. It was further submitted that it is also the defence of accused that some neighbors had brought deceased Dilip at his house in the morning of 04.06.2012 and they had told him that deceased was found lying unconscious in front of house no. WZ1112, Badiyal Mohalla, Palam village, New Delhi.
52.Secondly, it was submitted that the evidence of Pw1 Sh.Parshant Nayak of having seen deceased in the company of both the accused persons taking liquor at the room of accused Jallandhar is required to be disbelieved as in the morning police had not seized any liquor bottle or glass to corroborate the testimony of Pw1 Sh.Parshant Nayak.
53.Thirdly, it was submitted that it has come in the evidence of Pw1 Sh.Parshant Nayak that it was accused Jallandhar, who had informed PW1 regarding lying of deceased Dilip in unconscious state at his room and if accused was the offender, he would not have gone to the room of Pw1 Sh.Parshant Nayak to inform about SC NO.: 72/12 31/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village deceased Dilip.
54.It was further submitted by the counsel for accused persons that when accused Jallandhar had himself informed Pw1 Sh.Parshant Nayak that deceased Dilip was lying unconscious in his room, therefore, there was no reason for accused Jallandhar to have run away from the spot. It was further submitted that both the accused persons were apprehended on 04.06.2012 itself and police had falsely shown that they were arrested on 06.06.2012. It was further submitted that even Pw4 Samunder had admitted in his examinationinchief that accused Jallandhar was arrested from the spot on 04.06.2012 itself. It was further submitted that since both the accused persons were arrested on 04.06.2012, the entire prosecution story, that they were apprehended on 06.06.2012 and thereafter accused Jallandhar had got recovered shirt from the park is required to be disbelieved.
55.Ld. defence counsel further submitted that recovery proceedings, is required to be disbelieved as despite availability of the public witnesses, same were not joined in the recovery proceedings which also makes the recovery proceedings at the instance of accused SC NO.: 72/12 32/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Jallandhar doubtful and unreliable. Ld. counsel for accused concluded his arguments by saying that chain of circumstances brought on record by the prosecution are not complete which unerringly points towards the guilt of accused persons and the possibility of deceased being murdered by some other persons and leaving the deceased in front of house no. WZ1112, Badiyal Mohalla, near Shiv Mandir, Palam, New Delhi can not be ruled out. Accordingly, prayer was made to acquit both the accused persons for the offence U/s 302/34IPC.
56.On the other hand Ld. Addl.PP for state opposed the plea of acquittal on the ground that the circumstances brought on record against both the accused persons unerringly points towards their guilt and it shows that it was the accused persons, who had committed the murder of deceased Dilip over the issue of theft of Rs. 300/. Ld. Addl.PP for state submitted that evidence of deceased and the accused persons consuming liquor at the house of accused Jallandhar was not available as room was that of accused Jallandhar and possibility of accused Jallandhar destroying the liquor bottles and glasses in the night can not be ruled out. It was further submitted that since accused persons had absconded, SC NO.: 72/12 33/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village therefore alcohol content in their body also could not be established as they were apprehended on 06.06.2012 and finding any trace of alcohol was not possible after two days of consumption of liquor.
57.Ld. Addl.PP for state further submitted that house no. WZ1121 was wrongly recorded as house no. WZ1112 in DD no.16A and an explanation has been provided by Pw11, ASI Jagdish Rathi that as he was going towards house No. WZ1112, he had seen PCR going infront of him and accordingly he followed the same and had reached at house no. WZ1121, Badiyal Mohalla, near Shiv Mandir, Palam Village. It was further submitted that even Pw19, Retired Inspector Mahinder Singh, who happens to be the IO of the case has provided explanation as to why they never went to house no. WZ1112 by deposing in his crossexamination that when they reached near the temple, they had found lot of public gathered there, who told Pw19 Retired Inspector Mahinder singh, that incident had taken place in house no. 1121. Ld. Addl.PP for state has further submitted that if the defence of accused persons is to be believed that deceased was lying unconscious in front of house no. WZ1112 and he was brought by some SC NO.: 72/12 34/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village neighbour to his house then accused persons should have examined those neighbours who had brought deceased Dilip to his house in the morning of 04.06.2012. However, accused persons have not examined any witness in their defence to lend credence to their defence. The accused persons have failed to satisfy that if neighbour had brought deceased Dilip to their house then why those neighbours were not examined in their defence to show that deceased was found lying unconscious in front of house no. WZ1112. Therefore, this defence of the accused persons is required to be disbelieved.
58. It was further submitted that shirt button was found near the body of deceased in the room of accused Jallandhar and same had tallied with the shirt recovered at the instance of accused Jallandhar and nonjoining of public witnesses though available is not fatal to the prosecution case as police witness to recovery are reliable.
59.Ld. Addl.PP for state further submitted that both the accused were last seen in the company of deceased on 03.06.2012 at 9.00p.m and body of deceased was found in the morning of 04.06.2012 from the room of accused SC NO.: 72/12 35/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Jallandhar and therefore, it was for the accused persons to have explained as to how and in what manner deceased was lying in their room. However, no plausible explanation has been offered by the accused persons which is also an incriminating circumstance to show that deceased Dilip was killed by both the accused persons in their room over the issue of theft of Rs.300/ by deceased Dilip.
60. Ld. Addl.PP for state further submitted that subsequent conduct of both the accused persons in running away from the spot and being apprehended after two days of the commission of murder is also an important circumstance which shows that accused persons were guilty of the commission of murder of deceased Dilip.
61.It was further submitted by Ld. Addl.PP for state that ld. Defence counsel has not been able to highlight as to why the police had shown the arrest of accused persons on 06.06.2012, which further proves that accused persons had absconded and were apprehended on 06.06.2012 which is further corroborated by the testimony of Pw4, Samunder, who happens to be the landlord of accused Jallandhar.
SC NO.: 72/12 36/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
62.Ld. Addl.PP for State concluded his arguments by submitting that in the present case, circumstances which have been established, proves that accused persons had motive to commit murder of deceased and they had committed the murder of deceased Dilip at their room after consuming liquor pursuant to their common intention. Accordingly, prayer was made to convict the accused persons for the offences U/s 302 r/w 34IPC.
63.I have considered the rival submissions made by respective counsels.
64.The accused persons have been charged u/s 302 r/w 34 IPC for having committed the murder of Dilip pursuant to their common intention on the intervening night of 03/04.06.2012.
65.The initial burden is upon the prosecution to prove its case.
66.The entire prosecution case rests upon the circumstantial evidence as there is no eye witness in the present case to the murder of Dilip.
67. The law with regard to appreciation of circumstantial evidence has been laid down by the Hon'ble Supreme SC NO.: 72/12 37/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Court of India in the matter of Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 wherein a three Judge Bench has laid down five golden principles which constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622: (1973) 2 SCC 793, it was opined that it is a primary principle that: the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions. 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;
(a)the circumstances should be of a conclusive nature and tendency that they should exclude every possible hypothesis except the one to be proved;
(b)that 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
(c)that it must show that in all human probability the act SC NO.: 72/12 38/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village must have been done by the accused."
68. In Padala Veera Reddy v. State of Andhra Pradesh and Ors. 1989 Supp (2) SCC 706 : 1991 SCC (CRI) 407, Supreme Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. A similar view has been reiterated in Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172.
69. In Ram Singh v. Sonia and Ors., AIR 2007 SC 1218, SC NO.: 72/12 39/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village while referring to the settled proof pertaining to circumstantial evidence, Supreme Court reiterated the principles about the caution to be kept in mind by Court. It has been held therein in para 39 that "......in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."
70. In Ujagar Singh v. State of Punjab, (2007) 13 SCC 90, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, Supreme Court held in para 14 that "......it must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted."
SC NO.: 72/12 40/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
71.Keeping in view the aforesaid principles, I shall proceed to scrutinize and evaluate the circumstances to find out whether the said circumstances establish the guilt of the accused beyond reasonable doubt.
72.The prosecution is relying upon the following circumstances to prove the guilt of accused:
(a)Motive of murder.
(b) Last seen circumstances to establish that deceased was last seen on 03.06.2012 in the company of both the accused persons.
(c) Subsequent conduct of both the accused persons in running away from the respective houses after the alleged murder of deceased.
(d) Recovery of shirt button near the body of deceased found inside the room of accused Jallandhar
(e) Lastly, the recovery of shirt with the missing button at the instance of accused Jallandhar and the missing button was that of recovered shirt as per FSL report.
73.I shall discuss each circumstance separately to find out as to whether circumstance has been proved or not and whether circumstances taken cumulatively leads to inescapable conclusion that accused only are guilty of the offence?
SC NO.: 72/12 41/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village "Motive"
74. The prosecution was required to prove that there was a motive for the accused persons to have committed murder of deceased Dilip.
75.The motive of the murder has been established by the evidence of Pw1 Parshant Nayak, who also happens to be the relative of deceased Dilip. As per the evidence of Pw1, on 03.06.2012 when deceased Dilip was present at his house, then accused Jallandhar had come to his house and quarrel had taken place between accused Jallandhar and deceased Dilip. Accused Jallandhar had alleged that deceased Dilip had stolen Rs.300/ from the pocket of his pant. Initially, deceased Dilip had denied about stealing the same but later on deceased Dilip had admitted and promised to return the same amount. Thereafter deceased Dilip had left the house of Pw1 Prashant Nayak alongwith accused Jallandhar for the purpose of consuming liquor. It had further come in the evidence of Pw1 that when deceased did not return to his house then at about 8.45p.m., Pw1 had gone to the room of accused Jallandhar, where he had found that accused Jallandhar and accused Sanjay were SC NO.: 72/12 42/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village quarreling with deceased Dilip after consuming liquor over the issue of Rs.300/ and Rs.10/. Thereafter at about 9.00p.m., on being assured by both the accused persons that deceased Dilip will return after sometime, Pw1 Parshant Nayak had returned, but for the entire night, deceased Dilip did not return to the house of Pw1 and in the morning he was apprised by accused Jallandhar that deceased Dilip was lying unconscious in his room.
76.In the crossexamination, nothing could be brought out in the testimony of Pw1 to create a doubt in his testimony or to show that Pw1, Parshant Nayak was a witness, who could not be relied upon. Pw1 Parshant Nayak during his crossexamination had again reiterated that verbal hot exchanges with regard to money was taking place between deceased and accused persons when he had visited the room of accused Jallandhar. From the testimony of Pw1 Parshant Nayak, it has come on record that accused Jallandhar had grudge against deceased Dilip for stealing Rs.300/ from his pant pocket and due to which quarrel had taken place between accused Jallandhar and deceased Dilip firstly at the house of Pw1 Prashant Nayak and thereafter at the SC NO.: 72/12 43/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village house of accused Jallandhar between the accused persons and deceased Dilip.
77.From the evidence of Pw1, it has also come on record that despite the deceased owning up the commission of theft of Rs.300/ from accused Jallandhar and promising to return the said amount, accused persons continued the quarrel with deceased Dilip at the room of accused Jallandhar. This evidence shows that both the accused persons were not satisfied with the promise made by the deceased Dilip to return the amount and after consuming liquor, they had again raised the issue of theft of Rs.300/ by deceased Dilip for which they were found to be quarreling by Pw1 Parshant Nayak on 03.06.2012 at about 9.00p.m. Therefore, facts established on record in the light of evidence of Pw1, proves that both the accused persons had motive to commit murder of deceased on the issue of stealing of Rs.300/ by deceased Dilip from the pant of accused Jallandhar. The proving of motive of murder is an important circumstance which goes against the accused persons.
"Last Seen"
78.The "last seen circumstance" is a subspecies of circumstantial evidence based prosecution. "Last Seen"
SC NO.: 72/12 44/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village doctrine essentially provides that "where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead, is so small that possibility of any person other than the accused being author of the crime become impossible. [Reference in this regard is made to judgment of the Hon'ble Supreme Court of India delivered in State of U.P.Vs. Satish, (2005) 3 SCC 114 and Ramreddy Rajesh Khanna Reddy Vs. State of Andhra Pradesh, (2006) 10 SCC 172].
79.Now let us see whether in the present case, prosecution have been able to prove that both the accused persons were last seen in the company of deceased shortly before his death?
80.The only witness of the prosecution with regard to last seen circumstance is Pw1 Parshant Nayak. As per evidence of Pw1 Parshant Nayak, he had last seen both the accused persons in the company of deceased Dilip quarreling while taking alcohol on the issue of theft of Rs.300/ by deceased Dilip from the pocket of accused Jallandhar in the room of accused Jallandhar at about 9.00p.m.
81.As per the evidence of Pw1, Parshant Nayak, he had SC NO.: 72/12 45/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village gone to the room of accused Jallandhar to bring deceased back, he had found accused persons and deceased taking alcohol and quarreling on the issue of Rs.300/. However, he had returned back after being assured by both the accused persons that he will return after sometime. However, Pw1 Parshant Nayak had got the information regarding death of deceased in the morning of 04.06.2012 through accused Jallandhar.
82.The body of deceased Dilip was found in the room of accused Jallandhar as per the evidence of Pw1 Parshant Nayak and evidence of Pw4 Samunder, who was landlord of accused Jallandhar.This fact is also admitted by the accused Jallandhar while being examined U/s 313 Cr.P.C. The time of death of deceased Dilip has been established by the evidence of Pw8, Dr. B.N Mishra, who had conducted the postmortem on the body of deceased Dilip and as per the postmortem report Ex PW8/A, the time since death was approximately two and half days prior to postmortem examination.
83.As per the postmortem examination report, Ex PW8/A, the postmortem was conducted on 06.06.2012 at about 1.45p.m. Therefore time of death has to be taken into SC NO.: 72/12 46/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village account from 06.06.2012 at about 1.45p.m. Now if two and half days prior to 06.06.2012 is calculated, then it comes to 1.45a.m on 04.06.2012.
84.Further, as per the evidence of Pw8, Dr. B.N Mishra, death of deceased Dilip was due to head injury caused by hard forceful impact over the head and injury was sufficient in ordinary course of nature to cause death. Therefore, from the evidence which has come on record, the time gap between the accused persons being last seen in the company of deceased on 03.06.2012 at about 9.00p.m and the time of death of deceased on 04.06.2012 at about 1.45a.m is so small that only inference which can be drawn is that accused persons would have killed deceased Dilip over the issue of theft of Rs.300/.
85.Further alcohol was also found in the body of deceased Dilip as per evidence of Pw21, Dr. Subhra Kumar Paul, Sr. Scientific Officer Chemistry, FSL Rohini who had examined sample sent by DDU Hospital. The presence of alcohol in the body of deceased, further corroborates the testimony of Pw1 Parshant Nayak that he had last seen the accused present in the company of accused persons taking alcohol.
SC NO.: 72/12 47/65SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village
86.The contention of the counsel for accused persons that accused persons were not last seen in the company of deceased and it was neighbours, who had brought the deceased in the morning of 04.06.2012 to the room of Jallandhar after he was found lying unconscious near the house no. WZ1112 is not acceptable.
87.The first reason for the same is that although the first information, which was sent to the police regarding deceased lying in unconscious state was recorded vide DD no.16A and address was provided that of WZ1112, as per the evidence of Pw11, ASI Jagdish and Pw19 Retired Inspector Mahinder Singh. However, both the witnesses i.e. Pw11 ASI Jagdish and Pw19 Retired Inspector Mahinder Singh have provided an explanation, which is believable, that when they were going towards house no. WZ1112, Badiyal Mohalla, Palam Village, New Delhi then large crowd had told Pw19 Retired Inspector Mahinder Singh that place of incident is WZ1121, Badiyal Mohalla and accordingly, he had reached there and Pw11, ASI Jagdish had reached at house no. WZ1121, after following the PCR Van.
88.It has come in the evidence of Pw1 that he had made SC NO.: 72/12 48/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village call to the police from his mobile no. 997112662 after finding the deceased in a pool of blood at the room of accused Jallandhar. In the entire crossexamination of Pw1, no suggestion was given by the defence counsel that Pw1 Sh Parshant Nayak had informed the police regarding the deceased lying in an unconscious state at house no. WZ1112 and no information was given by him that deceased was lying at the house of accused Jallandhar.
89.In the evidence of Pw1 Sh. Parshant Nayak, it has no where come on record that accused Jallandhar had informed Pw1 Parshant Nayak that deceased was found lying in an unconscious state at house no. WZ1112 and he was brought to his house by some neighbours.
90.Even no suggestion was given by Ld. Defence counsel to Pw1 Parshant Nayak that accused Jallandhar had informed him regarding deceased being found near house no. WZ1112. Therefore, evidence which has come on record of Pw1 Parshant Nayak established that Pw1 never had any information from accused Jallandhar that deceased was found lying in house no. WZ1112 and the only information which he had was that deceased was lying in the room of accused SC NO.: 72/12 49/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Jallandhar. Therefore, Pw1 would have informed the police that deceased was lying at the house of Jallandhar and the possibility of control room official recording the incorrect house of WZ1112 can not be ruled out.
91.The fact that house no. WZ1112 was recorded by mistake in DD no.16A is also borne from the fact that in the present case accused has not been able to establish his defence that deceased was found in unconscious state near house no. WZ1112 and he was brought to his house by the neighbours. Accused has not examined any of his neighbours to corroborate his defence that deceased was brought to his house in the morning of 04.06.2012 by some neighbours.
92.Further, it is not believable that neighbours will not be knowing the relative of deceased and in the natural human course of conduct, neighbours will firstly inform the relatives of deceased and will accordingly take him to his house rather than at the house of accused Jallandhar, who claims himself to be the friend of deceased Dilip. Therefore, from the evidence which has come on record accused has not been able to create any doubt that deceased was found lying in an unconscious state near the house no. WZ1112, Badiyal SC NO.: 72/12 50/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Mohalla, Palam village and that some neighbours had brought him to his house.
93.Even assuming that defence put forward by the accused persons is to be believed, then also accused has offered to explanation as to why this fact was never told to Pw1 Parshant Nayak, who happens to be relative of the deceased.
94. In the entire crossexamination of Pw1, nothing has been put by the defence counsel to show that accused had shared the information with Pw1 that deceased was brought to his room by neighbours after he was found lying near house no. WZ1112. Therefore this defence have been taken by the accused persons at a later stage being an after thought and is required to be disbelieved.
95.It was the defence of the accused Sanjay that he was present at his house in the intervening night of 03/04.06.2012 as per suggestion given to the Pw19 Inspector Mahender Singh in his crossexamination. However, while being examined U/s 313 Cr.P.C when the incriminating circumstance of accused Sanjay and accused Jallandhar were seen in the company of deceased Dilip on 03.06.2012 at around 9.30p.m at the SC NO.: 72/12 51/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village room of accused Jallandhar has put to, accused Sanjay, then he had denied the said circumstance but had not offered any explanation regarding his denial. Therefore from this, it can be inferred that the false defence was taken during the crossexamination of Pw19 retired Inspector Mahender Singh of accused Sanjay being available at his house on the intervening night of 0304/06/2012 and he was not present at the room of accused Jallandhar. Further no evidence was led on record by accused Sanjay to show that he was present at his house in the intervening night of 0304/06/2012 to create a doubt in the prosecution case. As per the evidence of Pw19, accused Sanjay was staying with his family members separately. Therefore, accused Sanjay could have examined his family members in his defence to show that he was not present at the intervening night of 0304/06/2012 at the room of accused Jallandhar. However no witness has been examined in his defence, which also proves that defence taken by him was a false defence.
96.The other defence of the ld. Defence counsel was that if accused persons were last seen in the company of deceased at around 9.00p.m, while consuming liquor SC NO.: 72/12 52/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village then some material should have been found in the room of Jallandhar in the morning of 04.06.2012 to show that liquor was being consumed there and even the medical examination of the accused persons should have shown some trace of alcohol in their body. However, there is no evidence led on record by the prosecution on this aspect which demolishes the last seen theory put forward by the accused persons.'
97.The said contention of defence counsel is not acceptable as firstly, the deceased was murdered in the intervening night of 03.06.2012 at about 1.45a.m and information was given to Pw1 in the morning. Therefore, accused persons had sufficient time to remove any material showing consumption of alcohol. Further both the accused persons were not arrested on 04.06.2012 and were arrested as per prosecution case on 06.06.2012. Therefore, even in their medical examination, it was not possible to have found any trace of alcohol. Therefore, on this ground, no doubt is created in the last seen circumstance.
98. Accordingly, it is proved on record that deceased was last seen in the company of accused persons at about 9.00p.m on 03.06.2012, prior to his murder on 04.06.2012 SC NO.: 72/12 53/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village at about 1.45a.m. The time gap between the last seen and the death of deceased Dilip is so small that possibility of some other persons committing murder of deceased does not arise.
99.Further in the room of accused Jallandhar, there were only three persons i.e. Both accused and deceased Dilip, who was murdered in the said room. Therefore it was for both the accused persons to explain how he died. However, the explanation offered by both the accused persons is not believable as discussed herein above.
"Subsequent conduct"
100. The third circumstance which the prosecution was required to prove was that both the accused persons had ran away from their respective houses on 04.06.2012 and were apprehended on 06.06.2012. It has come in the evidence of Pw1 Parshant Nayak that accused Jallandhar had fled away from the spot after pointing out deceased Dilip lying in his room in the morning of 04.06.2012. Further the arrest of both the accused persons on 06.06.2012 is duly proved by the evidence of Pw4 Samunder, who happens to be the landlord of accused Jallandhar and by the evidence of SC NO.: 72/12 54/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Pw5 HC Nihal Singh, Pw6 Constable Om Parkash, Pw7 Constable Raj Pal and Pw19 Retired Inspector Mahender singh. As per evidence of Pw4, Samunder Singh, accused Jallandhar was initially present at the spot in the morning of 04.06.2012 and thereafter he had fled away. Both the accused persons i.e. accused Jallandhar and accused Sanjay were brought by the police to his house on 06.06.2012. Further police team comprising of Pw5 HC Nihal singh, Pw6 constable Om Parkash, Pw7,constable Rajpal and Pw19 Retired Inspector Mahender Singh have proved on record that both the accused persons were arrested on 06.06.2012 from near DDA Park, Sector1, Dwarka, near Mata Rani Temple. The evidence which has come on record shows that accused Jallandhar and accused Sanjay had run away from their respective houses on 04.06.2012 and were apprehended on 06.06.2012. The subsequent conduct of the accused persons in running away from the respective houses after the commission of murder is also relevant U/s 8 of the Indian Evidence Act,1872 and is the important circumstance to show that they were involved in the murder of deceased Dilip. If accused persons had not committed murder of SC NO.: 72/12 55/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village deceased Dilip and Dilip was infact lying near the house no. WZ1112, Badiyal Mohalla, Palam village then there was no reason for the accused persons to have run away from their respective houses.
101.The contention of the counsel for accused persons that accused were apprehended on 04.06.2012 itself and they were illegally kept in the custody till 06.06.2012 and they had not ran away is not acceptable as police will not gain anything by keeping the accused persons in illegal detention.
102. It is not the case of the accused persons while being examined U/s 313 Cr.P.C that when they were allegedly kept in illegal custody by the police from 04.06.2012 to 06.06.2012, the police had tortured or had created false evidence against them. On the contrary, both the accused persons U/s 313 Cr.P.C have only stated that they were picked up on 04.06.2012 and were illegally detained by the police. It is beyond the comprehension of the court as to why police will detain the accused persons illegally for two days, if they were apprehended on 04.06.2012 itself.
103.Further it was for the accused persons to have brought some evidence on record to show that they were illegally SC NO.: 72/12 56/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village detained from 04.06.2012 till 06.06.2012. However, no evidence has been led on record by the accused persons in support of their defence relating illegal detention. Therefore the defence of the accused persons that they were illegally detained by the accused persons is not believable. Accordingly, this contention is rejected.
"Recovery of button and shirt"
104.Last circumstance which the prosecution was required to prove was that shirt button was recovered near the body of deceased Dilip in the room of accused Jallandhar and said shirt button was that of the shirt of the accused Jallandhar which he got recovered on 06.06.2012 after his arrest.
105.The recovery of shirt button from near the body of deceased Dilip has been proved by PW4, Samunder, in whose presence the said button was seized vide memo Ex Pw4/C. The evidence of Pw4 regarding recovery of shirt button is duly corroborated by Pw5 Hc Nihal singh, Pw11 ASI Jagdish Rathi & Pw19 Inspector Mahender singh. The recovery of button from the spot is further proved by the photograph taken by Pw13 Ct Anil, forming part of Ex Pw4/D(colly.) Therefore from SC NO.: 72/12 57/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village the evidence of the aforementioned witnesses, recovery of button at the spot from near the body of deceased Dilip has been proved.
106.It is also proved on record that room where the body of deceased Dilip as found lying and from where the shirt button was recovered was in the tenancy of accused Jallandhar in the light of evidence of Pw4 Samunder, who was the landlord of accused Jallandhar and the admission made by accused Jallandhar in the statement U/s 313 Cr.P.C.
107.It is also proved in the light of evidence of Pw7 constable Rajpal and Pw5 HC Nihal singh and Pw19 Retired Inspector Mahender singh that accused Jallandhar had got recovered shirt pursuant to his disclosure statement from the corner of the park, opposite Mata Rani Mandir, Sector1,Dwarka, New Delhi, which was seized vide Ex Pw5/G.
108.The description of shirt was provided by PW4 Samunder in his crossexamination and he had deposed that accused Jallandhar was seen wearing jeans pant and a light yellow shirt. Further the shirt recovered in the present case is also of light yellow colour as per seizure memo Ex Pw5/G and during the SC NO.: 72/12 58/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village production before this court, it has also found to be light yellow colour shirt as mentioned in the evidence of Pw19, Inspector Mahender Singh.
109.Therefore the evidence led on record proved that the shirt was got recovered by accused Jallandhar on 06.06.2012.
110.The contention of the counsel for accused that recovery of shirt at the instance of accused Jallandhar is require to be disbelieved as despite availability, public witnesses were not joined and testimony of police witnesses to the recovery can not been accepted as such, is not acceptable as there is no bar in police official being witness to the recovery. Further public witnesses are generally reluctant to become witness to the recovery as they do not want to involve themselves in the process of law. The only condition for accepting the evidence of police official as a witness to the recovery is that they should be reliable and trustworthy. I am fortified in my reasoning by the judgment of Hon'ble Delhi High court reported as Shashi Shekhar @ Neeraj Vs. State ( Delhi) 2007 Cr.L.J 4193 Delhi 2002 CRL 4193, wherein it was held that "even if the witnesses of the recovery are police officials, then their has to be SC NO.: 72/12 59/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village accepted in the light of Section114(e) of Indian Evidence Act, 1872. The only condition for accepting their testimony is that their evidence should be reliable and trustworthy". In the present case nothing has been brought on record by the defence counsel that Pw5 HC Nihal singh, Pw7 Constable Rajpal & Pw19 Inspector Mahender singh are the witnesses whose testimony can not be relied upon.
111.It is also proved on record in the light of evidence of Pw10 Sh Parshuram Singh, Assistant Director, Physics, FSL, Rohini, who had examined the recovered shirt and the button found lying near deceased Dilip as per his report Ex Pw10/A that recovered button was that of shirt.
112.Therefore in the present case, the recovery of button at the spot from the body of deceased Dilip which belonged to the shirt of the accused Jallandhar is also an imporant circumstance to show that deceased Dilip might have offered some kind of resistance while he was being assaulted by the accused persons and during that course, shirt button of accused Jallandhar might have got broken. Therefore recovery of shirt button at the spot near the body of deceased Dilip is also an important SC NO.: 72/12 60/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village circumstance to show that accused persons had beaten up deceased Dilip to death and shirt button could have got broken during the course of deceased being assaulted by the accused persons.
113.In the light of above discussion, circumstances which have been established on record by the prosecution proves the motive of the crime i.e stealing of Rs.300/ from the pocket of accused Jallandhar by deceased Dilip. The last seen evidence of Pw1 Parshant Nayak proves that both the accused persons were last seen in the company of deceased Dilip at the room of accused Jallandhar. The room where the deceased was found lying has also been proved to be under the tenancy of accused Jallandhar. Death of deceased being homicidal is also proved.
114.The time gap between the last seen evidence and the time of death is also so small that possibility of deceased being murdered at some other place or by some other persons also does not arise. The subsequent conduct of the accused persons in running away and concealing themselves for two days after the commission of murder is also an important circumstance pointing towards their guilt. The recovery of shirt button from near the SC NO.: 72/12 61/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village body of deceased Dilip which was found to be that of shirt of deceased Jallandhar is also an important circumstance showing the involvement of the accused persons in commission of murder. Therefore all the circumstances cumulatively unerringly points towards the guilt of the accused persons and are inconsistent with their innocence. No circumstance has been established on record by the accused persons to create a doubt or to break the chain of circumstance established on record. Accordingly, both the accused persons are held guilty for commission of murder of deceased Dilip U/s 302 r/w 34IPC.
Announced in the open court
Dated: 19.08.2015 (Vikas Dhull)
ASJ01, Dwarka Courts
New Delhi
SC NO.: 72/12 62/65
SC No.:72/12
State Vs.Jallandhar Kumar and anr.
FIR No: 145/12
PS: Palam Village
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE01, DWARKA COURTS, NEW DELHI SC NO: 72/12 In the matter of : State Vs.
1. Jallandhar Kumar @ Nakta S/o Sh.Jugeshwar Mahto R/o village Fatehpur Distt.Shivhar Bihar Present Address:
H. NO. 1121, Badiyal Mohalla near Shiv Mandir Palam village, New Delhi
2. Sanjay Saha @ Sanju S/o Shri Ram Saha R/o Village Jagdishpur Post Office Khudai Bagh P.S. Khera Distt.Chhapra Bihar Present Address:
H. No 1120, Badiyal Mohalla Near Shiv Mandir, Palam Village, New Delhi ...Convicts 27.08.2015 ORDER ON SENTENCE SC NO.: 72/12 63/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village Pr: Sh.Aditya Kumar, Ld.Addl.PP for state.
Convicts in person with Sh L.S Gautam, from legal aid.
Arguments on the point of sentence heard and record perused.
Ld. Counsel for convicts has submitted that the present case does not fall under the category of rarest of rare cases and therefore, death sentence U/s 302/34IPC be not awarded to the convicts.
It is further submitted by him that convict Jallandhar is 27 years old and is unmarried, whereas age that of convict Sanjay is 30 years and is having family to take care of . Accordingly prayer is made to pass appropriate sentence.
Ld. Addl.PP for state fairly concedes that both the convicts deserves to be sentence to life imprisonment U/s 320/34IPC as the case does not fall under the rarest of rare category.
I have considered the rival submissions of both the counsels. Both the convicts have been found guilty for the offence U/s 302/34IPC for having committed the murder of deceased Dilip by causing head injury. The punishment U/s 302IPC is either death or life imprisonment with fine. Therefore, murder of deceased Dalip U/s 302/34IPC does not SC NO.: 72/12 64/65 SC No.:72/12 State Vs.Jallandhar Kumar and anr.
FIR No: 145/12 PS: Palam Village fall in the category of rarest of rare cases.
Therefore in these circumstances, both the convicts are sentenced to life imprisonment U/s 302/34IPC with fine of Rs.25,000/ each and on realization of fine from each convict, an amount of Rs.20,000/ each i.e. total of Rs. 40,000/ shall be given as compensation to the legal heirs of the deceased Dilip and in default of payment of fine, both convicts to further undergo three months simple imprisonment.
Benefit of section 428 Cr.P.C.be given to the convicts for period of custody already undergone by them during investigation and trial.
A copy of judgment and copy of order on sentence be supplied free of cost to convicts against receipt.
File be consigned to record room.
Announced in the open court (Vikas Dhull) Dated: 27.08.2015 ASJ01/Dwarka Courts New Delhi SC NO.: 72/12 65/65