Delhi District Court
34. It Has Been Held In Ramesh Bhai & Anr. vs . State Of on 21 July, 2011
IN THE COURT OF MS. MADHU JAIN,
ADDITIONAL SESSIONS JUDGE01, NORTH, DELHI.
FIR No.: 136/2010
PS: : Sadar Bazar
U/s: 302/365 IPC
S.C. No.: 120/2010
Case ID No.02401R0472532010
In the matter of:
State
Versus
Rahul Kumar
S/o Sh. Ashutosh Singh
R/o A76, 1st Floor, Pandav Nagar
Near Shadi Pur Depot, Delhi
Date of receiving in Sessions Court : 6.12.2010
Arguments Heard : 14.7.2011
Date of Judgment : 21.7.2011
JUDGEMENT
Case of prosecution:
1. On 17.7.2010 vide DD no. 40B P.S. Sadar Bazar, complainant Pankaj Kumar lodged the missing report of his cousin brother Krishan Mohan Prasad Singh who had not returned back from his office. On 19.7.2010 complainant Pankaj Kumar Singh again came to the police station and stated that his cousin brother Krishan Mohan Prasad Singh might have been abducted and he showed his suspicion upon accused S.C. No.: 120/2010 1/21 Rahul Kumar. On the basis of statement of complainant, case U/s 365 IPC was registered and during the investigation, IO arrested accused, recorded his disclosure statement, recovered the dead body as well as the belongings of deceased and weapon of offence i.e. stone at the instance of accused, added section 302 IPC, got the scene of crime inspected from crime team, sent the dead body for postmortem, prepared site plan, recorded statement of witnesses and after completion of investigation, filed the challan U/s 302/365 IPC against accused in the court.
2. Since the offence u/s 302 IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to the court of Sessions.
Charge Against The Accused:
3. Prima facie case U/s 364/302 IPC was made out against the accused. Charge was framed against him to which he pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 21 witnesses in all.
5. The brief summary of the deposition of the prosecution witnesses is as under:
Formal witnesses:
6. PW1 is SI Devender Purang, Incharge Crime Team who inspected the scene of crime and gave his report Ex. PW1/A. S.C. No.: 120/2010 2/21
7. PW2 is Constable Inderpal, Photographer of crime team who took photographs of the dead body as well as the place of occurrence from different angles and proved the same as Ex. PW2/1 to Ex. PW2/17. He further proved the negatives as Ex. PW2/18 to Ex. PW2/34.
8. PW3 is Mool Chand, registered owner of motorcycle bearing no. DL4SAG1409 who stated that he had sold the motorcycle to M/s Vivek Motors, Moti Nagar and M/s Vivek Motors had sold the same to Twinkle Motors, Karol Bagh who in turn sold the same to Rahul Kumar S/o Ashutosh Singh. He further proved the photocopy of delivery receipt as Ex. PW3/A.
9. PW6 is Head Constable Satbir Singh, the MHC(M) who proved the entries regarding deposition of case property in the malkhana.
10. PW7 is Dr. Rajender Kumar, Assistant Director (Biology), FSL, Rohini who examined the sealed parcels and proved the report as Ex. PW7/A and Ex. PW7/B.
11. PW9 is Constable Jaswant who took the sealed parcels to FSL, Rohini and deposited the same there.
12. PW10 is ASI Kusum Lata, the duty officer who recorded the FIR and proved the same as Ex. PW10/A.
13. PW12 is SI Mahesh Kumar, Draftsman Crime Team who took rough notes and measurements of the spot and thereafter prepared scaled site plan Ex. PW12/A.
14. PW13 is Sh. R.K. Singh, Nodal officer, Bharti Airtel Ltd. who S.C. No.: 120/2010 3/21 proved the call details of PCO telephone no. 01141545420 as Ex. PW13/A and call details of telephone no. 9910301462 as Ex. PW13/F.
15. PW14 is Sh. Rakesh Soni, JTO, Mobile Service, MTNL who proved the call details of phone no. 9968820489 in the name of Sh. Krishan Mohan Singh as Ex. PW14/A and the call details of phone number 9013455068 in the name of Sh. Chunchun Kumar Singh as Ex. PW14/B.
16. PW16 is Sh. Raj Kumar, Nodal Officer from Reliance Communication who proved the call records of phone number 8010196580 in the name of Rahul Kumar as Ex. PW16/A ( 1 to 35) and the customer application form as Ex. PW16/B.
17. PW20 is Sh. Sarfaraz Alam, Assistant Manager from MTNL who proved the agreement form of telephone numbers 9013455068 and 9968820489 in the name of Chunchun Kumar Singh and Sh. Krishan Mohan Singh respectively as Ex. PW20/A and Ex. PW20/B. Material Witnesses:
18. PW5 is Sh. Subhash Gupta, employer of deceased Krishan Prasad Singh who stated that on 16.7.2010 at about 55.15 p.m. deceased had received a call on his mobile phone and after attending that call, deceased requested him to let him go as he had an urgent piece of work and accordingly he allowed him to go. He further stated that after 16.7.2010 deceased did not come at his shop and on 19.7.2010 from police officials he came to know that Krishan Mohan Prasad Singh has S.C. No.: 120/2010 4/21 been murdered.
19. PW8 is Sh. Lalit Kumar Bagga who is running an STD Booth at Karol Bagh and has stated that accused Rahul Kumar had come to his shop for telephone at around 4.30 p.m. or 5.00 p.m. on 16.7.2010 and at the time accused was making call, he was nervous.
20. PW11 is Sh. Pankaj, who is the cousin brother of deceased as well as complainant of this case. He has duly supported the case of prosecution and has also proved his complaint Ex. PW11/A given to the police.
21. PW18 is Sh. Vijay Kumar, brother in law of deceased who alongwith PW11 accompanied the IO and other police officials during the arrest of accused as well as during the recovery of dead body, bag and mobile phone of deceased and weapon of offence at the instance of accused.
22. PW15 is ASI Mohd. Saleem and PW17 is Constable Brahm Pal Singh who were with the IO during the investigation of the case and has proved the memos etc.
23. PW19 is Smt. Kamini Devi, wife of deceased who has stated that accused Rahul Kumar was in love with her and due to this reason, he killed her husband.
24. PW21 is Inspector Pramod Gupta, IO of the case who conducted the investigation of the case and proved the memos etc. S.C. No.: 120/2010 5/21 Medical Witnesses:
25. PW4 is Dr. S.Lal, Specialist Forensic Medicine from Subzi Mandi Mortuary who conducted postmortem on the dead body of deceased Krishan Mohan Prasad Singh and proved the report as Ex. PW4/A.
26. Statement of accused U/s 313 Cr.P.C. was recorded wherein he denied the case of prosecution and stated that he is innocent and has been falsely implicated in the present case. He further stated that the statement given by Smt. Kamini Devi is incorrect and based upon concocted story.
27. Accused further chose to lead evidence in defence and examined two witnesses in his defence.
28. DW1 is Constable Ved Prakash from P.S. Dhaula Kuan who stated that from 16.7.2010 to 19.7.2010 he was directed to perform his duty at Shree Fort Auditorium Hauz Khan due to commonwealth games and Constable Lalit Kumar was performing duty in beat no.16.
29. DW2 is Constable Lalit, Beat Constable from P.S. Dhaula Kuan who has stated that he was patrolling at 12.00 noon near Dhaula Kuan, Ring Road and he was also present at the time of lifting of dead body and in between 16.7.2010 to 19.7.2010, he had not seen the said dead body.
30. I have heard Ld. APP for the state as well as Ld. Defence counsel and have carefully perused the record.
S.C. No.: 120/2010 6/21 Conclusion:
31. Ld. defence counsel argued that the total investigation is vitiated, without any jurisdiction and the police lifted the dead body without any information to the local police. Even at the first instance the complainant did not show any suspicion upon the accused. The motive of crime is shown to have illicit relationship between the wife of deceased and accused but same has not been proved on record by the prosecution. Ld. Defence counsel further argued that there is no eye witness of the case and accused was taken to the STD Booth and there is no slip filed on record which can show that the accused made the telephone call from the STD Booth. He further argued that there is no public witness of the recovery and no finger prints were lifted and no blood stains have been found on the weapon of offence as well as on the clothes of accused.
32. On the other hand, Ld. APP for the state argued that the prosecution has proved its case beyond reasonable doubt; the contradictions as pointed out are minor in nature which are liable to be ignored; all the 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 further argued that the circumstances proved on record by the prosecution pointed towards the guilt of accused only. Not only the dead body of deceased was recovered at the instance of accused but also his mobile and the bag was recovered at the instance of accused. S.C. No.: 120/2010 7/21 He further argued that the owner of STD Booth from where accused made the telephone call to the deceased has duly identified the accused and also the call details proved on record shows that accused made the telephone call from the STD Booth of PW8 Sh. Lalit Kumar. He further argued that the motive of crime is not the illicit relations between the wife of deceased and accused but the infatuation of accused towards the wife of deceased. He further argued that since beginning it is not the case of prosecution that there was some illicit relations between the wife of deceased and accused but the case of prosecution is that it was due to the infatuation of accused upon the wife of deceased that accused killed the deceased. He further argued that the testimony of prosecution witnesses have remained unshattered and prosecution has been duly able to prove its case against the accused beyond shadow of doubt.
33. Admittedly there is no eye witness of the present case 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.
34. 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 S.C. No.: 120/2010 8/21 Karnataka AIR 1983 SC 446, State of U.P. Vs. Sukhban & Ors. AIR 1985 SC 1224, Balvinder 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".
35. 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. (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"
36. The present case of prosecution is also based entirely on the circumstantial evidence as there is no eyewitness to the incident. I have considered the rival submissions made at bar and have carefully gone through the evidence on record.
S.C. No.: 120/2010 9/21
37. In the present case, PW5 is Sh. Subhash Gupta, employer of deceased Krishan Prasad Singh who stated that on 16.7.2010 at about 55.15 p.m. deceased had received a call on his mobile phone and after attending that call, deceased told him that he had an urgent piece of work and he requested to go and accordingly PW5 allowed the deceased to go and thereafter deceased did not return to his shop. This witness has proved the fact that deceased Krishan Mohan Prasad was employed in his shop and on 16.7.2010 at about 5/5.15 p.m. deceased Krishan Mohan Prasad received a call on his mobile and after the call, deceased requested him to go. In his cross this witness has admitted that he does not know who made the call on mobile of deceased and who was the caller of the call and he also did not ask the deceased about the same. Naturally if deceased Krishan Mohan Prasad received a call on his mobile phone, then his employer may not be knowing about the person who made the call or who was the caller of the call. He himself has admitted that he did not ask the deceased about the same. The chief as well as cross of this witness shows that the witness is not deposing falsely or is not tutored one. He is a truthful witness and is deposing in the court only what he saw.
38. PW8 is Sh. Lalit Kumar Bagga who stated that he is running an STD Booth and on 16.7.2010 accused Rahul Kumar reached at his shop for telephone at around 4.30 or 5 p.m. and he came to know the name of Rahul Kumar later on. He stated that at the time when accused S.C. No.: 120/2010 10/21 was making call, he was nervous and second time, he was brought to his shop by the police officials and he identified the accused before the police officials. The testimony of this witness has also remained unshattered and nothing material has come out of the cross examination of this witness which can shake the case of prosecution. This witness has stated that he observed from the face of accused that he was nervous and it is an open STD Booth. He has further stated in his cross that accused was talking in whispering voice and he did not hear the conversation of accused. He has admitted that Karol Bagh is a busy area and about 50/60 persons used to visit his shop as customer in a day. He has admitted that he cannot identify all the customers who visit his shop for making call but he has stated that as the accused had attended incoming call at his shop also so he identified him as most of the customers make only outgoing calls from his STD Booth. He further stated that he cannot tell the number of incoming call as it was not noted by him. PW8 is running an STD Booth has been further proved by PW13 Sh. R.K. Singh, Nodal Officer from Bharti Airtel Ltd. who has proved the call details of PCO telephone no. 01141545420 of 16.7.2010 as Ex. PW13/A. From these call records it is clear that a call was made from this STD booth to the telephone number 9968820489 at around 17:14:05 hours for about 96 seconds and subsequently from the same mobile no., two calls had been received on this STD booth number at 17:37:46 hours and at 17:37:47 hours, the duration of which is 30 seconds each. Thus, the testimony of PW8 that S.C. No.: 120/2010 11/21 accused Rahul had also received incoming call at his STD Booth is fortified by these call details record. As per the testimony of PW14 Sh. Rakesh Soni, from MTNL telephone number 9968820489 was in the name of Krishan Mohan Singh. This witness has further proved the call details of this mobile number as Ex. PW14/A. These call details Ex. PW14/A of the mobile phone of Krishan Mohan Singh of dated 16.7.2010 shows that two calls had been made from mobile phone number 9968820489 to phone no. 41545420 and one call had been made from phone no. 01141545420 to phone number 9968820489 at around 5.15 p.m. From the call details on record which have been duly proved by the prosecution as per the law laid down by Hon'ble High Court of Delhi in 2003 VII AD (Delhi) 1 titled as State Vs. Mohd. Afzal and from the testimony of PW 8, it stands proved that it was accused Rahul Kumar who made the phone call to deceased Krishan Mohan Singh on 16.7.2010 at about 5.15 p.m. and deceased also received the phone call on said day has also been proved by his employer PW5. Accused in his defence as well as in his statement U/s 313 Cr.P.C. has not taken any defence regarding the fact that he did not make the phone calls to the deceased except for denying the same. Mere denial is not sufficient. Though under the principles of criminal jurisprudence it is the prosecution who is required to prove its case against the accused beyond shadow of doubt but at the same time if the accused had not made the call to the deceased or it was someone else who made the call to deceased then it was for the accused also to lead at S.C. No.: 120/2010 12/21 least some evidence in this regard which he has failed to lead.
39. PW11 is Pankaj who is the complainant in the present case. He stated that the deceased was his cousin brother . On 16.7.2010 Kishan Mohan Prasad had gone to Sadar Bazar for his duty but on that day he did not return back. He contacted the employer of deceased who told him that deceased had left the shop in the evening. Thereafter he started search of his cousin brother but he was not traceable. He informed the police on 17.7.2010 and lodged a written complaint against the accused on 19.7.2010. He further proved his complaint as Ex. PW11/A.
40. No doubt FIR in the present case has been registered late. As per PW11 he gave the complaint Ex. PW11/A to the police on 19.7.2010 but that delay has been duly explained by the prosecution. On 16.7.2010 when the deceased did not return back to his home then obviously his relatives and wife must have taken some time to search him at their near places. On 17.7.2010 itself vide DD no. 14B complainant registered a missing complaint regarding his cousin brother. It is clear that in the initial complaint he had not shown any suspicion upon anybody but subsequently within one day i.e. on 19.7.2010 the complainant gave the written complaint to the police that his cousin brother could not be traced out and on that day FIR had been duly registered. Thus, delay in registration of FIR has been duly explained by the prosecution. Furthermore it was in this complaint that the complainant showed his suspicion upon the accused . PW11 has also duly identified his signatures S.C. No.: 120/2010 13/21 on all the memos. He has been cross examined at length by Ld. defence counsel but nothing material has come out of his cross examination. He has admitted that there was good relationship between the accused and their family. The witness himself has admitted in the court that on the day when deceased went missing there was no suspicion upon the accused at that time. He has also explained that they started searching the deceased at the house of relatives and friends on 16.7.2010. Thereafter he telephoned to Kishan Mohan Prasad on his mobile at about 9.00 p.m. and when mobile was not attended by Kishan Mohan Prasad, in the morning of 17.7.2010, they went to the police station and on that day also, he had not shown his suspicion upon accused Rahul Kumar. No doubt at the first place complainant had not shown any suspicion upon the accused and this fact he has admitted in his cross examination also. From the cross examination of this witness, it is clear that he is not a tutored witness and is not an interested witness or bias towards the accused. He has stated in his cross that when IO asked about the dead body from accused Rahul Kumar then Rahul Kumar had told that he had thrown the dead body in jungle of Ring Road and thereafter he alongwith his brother in law and the police officials went for the recovery of the dead body of deceased and the dead body was found at some distance from the Ring Road towards jungle/bush side and some public persons had gathered there after seeing the police at Ring Road. This witness has further stated that statement of public persons were not recorded by the IO. S.C. No.: 120/2010 14/21
41. So far as the jurisdiction is concerned then the crime took place inside the state of Delhi and all Delhi police officials have the same jurisdiction. It is not that the crime took place outside the limits of NCR region of Delhi and therefore the police officials were required to take the help of local police also.
42. So far as non joining of public witnesses is concerned, then not only PW11 but one more witness i.e. PW Vijay Kumar has also been made a witness in this case. Both PW11 and PW 18 Vijay Kumar are the public witnesses of the case. No doubt they are the relatives of deceased also but as is the general trend in cities like Delhi, no independent public witness who has no concern with the case wants to get himself or herself involved in the police or court proceedings and it is generally seen that though the public persons collect at the spot as soon as some incident occurs but rarely they are willing to join the police officials or the investigation of the case. Present case is also no exception to this rule. In such circumstances, merely because PW11 and PW18 are the relatives of deceased, no presumption can be drawn that they have deposed falsely against the accused or have falsely implicated the accused. They both have stated that accused alongwith police officials took them towards the jungle of Ring Road fromwhere he got the dead body of deceased recovered. They have further stated that on asking the accused further told that he had killed Kishan Mohan Prasad by stone Ex. P2 and the stone was also got recovered by the accused. PW11 has admitted that S.C. No.: 120/2010 15/21 there were many stones lying near railway track from where the stone Ex.P2 was recovered. Similar is the testimony of PW18 and he has also stated that accused got recovered the stone i.e. weapon of offence with which he had committed murder of deceased Krishan Mohan Prasad. The testimonies of PW11 and PW18 have remain unshattered and nothing material has come out of their cross examination.
43. The disclosure statement made to police official by accused is not admissible in evidence and is hit by the provisions of Indian Evidence Act but at the same time there is an exception to this rule. If in consequence to that disclosure statement , recovery of a fact or thing is made by the police, then that much of the disclosure statement is admissible in evidence. In the present case also, the disclosure statement made by the accused to police is not admissible in evidence but that much part of the disclosure statement wherein accused has stated that he can get recover the dead body as well as the bag and mobile of deceased is admissible in evidence as after this disclosure statement, not only the dead body of deceased and the weapon of offence but also the bag and mobile phone of deceased has been recovered by the police at the instance of accused. It may also be mentioned that all these things have not been recovered from the same place. Only the dead body of deceased was recovered from the jungle of Ring Road, Dhaula Kuan whereas the bag and mobile phone of deceased have been recovered from the park of DDA complex, Mayapuri. Neither the police officials nor any other witness i.e. S.C. No.: 120/2010 16/21 PW18 or PW11 who accompanied the police officials were aware of the place where after the murder, accused had thrown the dead body of deceased or bag and mobile phone of deceased. Ld. Defence counsel argued that the dead body remained lying in the jungle of Ring Road, Dhaula Kuan for 2 days and it could not be noticed by the beat constable is hard to believe. On the other hand, Ld. APP for the state argued that merely because the beat constable could not detect the dead body before two days is no ground to presume that the dead body was not found there. The submissions of Ld. APP for the state bears force. If the beat constable did not do his duty properly or could not detect the dead body in a deserted area then no presumption can be raised that the dead body was not lying there. Moreover the place from where the dead body has been recovered is a deserted place i.e. the jungle/bushes near the Ring Road, Dhaula Kuan and public persons do not come there. Therefore if the accused was aware of the fact that dead body was lying there then only presumption that can be raised is that it was accused only who committed the murder of deceased and threw away the dead body there. Similarly for the bag and mobile phone of deceased also which have been recovered from a pit near park DDA complex, Mayapuri, the only presumption that can be raised is that as the accused had thrown these articles in the pit of Mayapuri, park of DDA complex, so only he was knowing about the same and therefore he got recovered the same after his arrest. Even if for arguments sake we say that it is a public place and is S.C. No.: 120/2010 17/21 visited by so many public persons but still the fact remains that how it came in the knowledge of accused that bag and mobile phone of deceased was lying there and how he got recovered the same from the park of DDA complex, Mayapuri, if he did not commit the murder of deceased and did not throw the bag and mobile phone of deceased in the park of DDA complex, Mayapuri. This fact also proves the case of prosecution that it was accused only who threw the bag and mobile phone of deceased after committing the murder of deceased in order to destroy the evidence. Accused intentionally threw the bag and mobile phone of deceased at a place away from the place where he committed the murder of deceased i.e. from where dead body of deceased was recovered so that even if the dead body comes in knowledge of any person, its identity could not be established for long through the contents of bag or mobile phone. Therefore accused very cleverly threw the bag and mobile phone of deceased at a far away place so that if the dead body is noticed by some person immediately then its identity could not be established immediately by the police officials also but it was the bad luck of accused that same could not be detected for three days and it was only at the instance of accused that it was detected and recovered. From the condition of dead body which had many insects and which was highly decomposed it is clear that the dead body was lying there fore 2/3 days.
44. PW4 is Dr. S. Lal who conducted postmortem on the dead body and has proved the report as Ex. PW4/A. He has stated that the S.C. No.: 120/2010 18/21 cause of death was cranio cerebral damage consequent upon blunt force impact on head and sufficient to cause death in ordinary course of nature and time since death was about 3 to 4 days. In this case the postmortem had been conducted on 20.7.2010 and the death as per the prosecution took place on 16.7.2010, therefore time since death is mentioned as 3 to 4 days which also fortifies the case of prosecution that deceased was killed on 16.7.2010. The opinion on weapon of offence was also given by Dr. S. Lal who has proved the report as Ex. PW4/B. As per the report Ex. PW4/B, the injuries mentioned in PM report no. 1, 2 & 3 would have been possible to be caused by this weapon of offence i.e. Stone. Though as per the FSL report Ex. PW7/A, blood could not detected on stone but merely because blood could not detected on stone is no ground to presume that the accused did not cause the death of deceased or that this weapon of offence i.e. stone was not used by the accused in the commission of crime. Accused got recovered the weapon of offence in pursuance to his disclosure statement and on the weapon of offence opinion has been given by the doctor that the injuries which caused the death of deceased were possible by this weapon of offence. In such circumstances mere non detection of blood spots on this weapon of offence i.e. stone is no ground to throw away the case of prosecution.
45. So far as the motive of accused is concerned, then PW19 who is the wife of deceased has stated that one day while she was sitting on the roof, accused Rahul reached there and told her that he has started loving S.C. No.: 120/2010 19/21 her on which she told him that her son is of the age of accused but accused did not heed upon her advice and again and again told her that he likes her a lot. PW19 has further stated that accused used to come to their house and used to sit with her husband which she never liked. She has stated that though accused was also helping her in search of her husband but accused had killed her husband as he wanted her to love him. In her cross this witness has stated that about the conduct of accused she told her husband but her husband told her not to pay attention to the accused. Thus, the motive of crime that the accused fell in love with the wife of deceased and in order to eliminate the deceased from the life of his wife i.e. PW19, accused killed the deceased Kirhsan Mohan has also been established by the prosecution. PW19 herself has stated that accused told her that he has started loving her but she did not pay any heed to him. No lady would make such type of allegations which also endangers her reputation if the same are not correct. It was due to the infatuation of accused that the husband of PW19 was killed by the accused. In such circumstances, it cannot be said that PW19 cooked up a story only to falsely implicate the accused while endangering her own reputation. Even nothing material has come out of the cross examination of this witness. She has stated that she told her husband about the conduct of accused but her husband told her not to pay any heed to the accused. The accused was much younger i.e. 13 years younger than the wife of deceased and in such circumstances keeping in view the age of accused ,it seems that neither S.C. No.: 120/2010 20/21 the deceased nor PW19 took any notice of the conduct of accused.
46. Thus, not only the actus reus i.e. commission of murder but also the mens rea i.e. the motive or the intention to commit murder has also been proved by the prosecution beyond reasonable doubt.
47. So far as section 364 IPC is concerned then though the making of phone call by the accused to deceased and subsequently by the deceased to accused has been proved on record by the prosecution but this making of call does not prove the fact that accused abducted the deceased Krishan Mohan Prasad. Neither the factum of abduction nor the use of any force by the accused has been proved on record. The deceased was a mature man of 40 years of age and there is no evidence on record to suggest that accused used some force or allured the deceased to go with him. There is also the possibility that deceased himself went with the accused. Thus, there is no evidence on record that accused abducted the deceased and in such circumstances prosecution has failed to prove the ingredients of section 364 IPC against the accused beyond reasonable doubt.
48. In view of the abovesaid discussion, accused is held guilty and convicted for the offence U/s 302 IPC. However he is acquitted of the offence U/s 364 IPC.
(Madhu Jain) Additional Sessions Judge01 (North) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 21.7.2011 S.C. No.: 120/2010 21/21