Delhi District Court
State vs Prem Singh on 16 September, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.136/09
FIR No.45/07
U/s 302/201 IPC
PS Okhla Industrial Area
State
Vs.
1. Prem Singh
S/o Sh Megh Singh
r/o Village Nangla Diyali, P.O. Khanda
PS Burhun
District Agra (UP)
.......... Accused
Challan filed on : 18.04.2007
Received by Fast Track Court on:19.11.2009
Reserved for Order on : 04.09.2010
Date of Pronouncement : 13.09.2010
JUDGMENT
Briefly stated the facts of the prosecution case are that on 12.1.07 information was received by HC Pradeep Kumar regarding missing of truck bearing no. UP 15F 3702 alongwith driver Harish @ Raju and conductor Prem. Search for the same was made but no clue found. On 17.01.07 owner of truck named Sajjan Kumar Goel came to Police Post and got recorded his statement which is Ex.PW17/A in State Vs.Prem Singh FIR no.45/06 Page No. 1 of 38 which he has stated that he is running transport company and he is having three vehicles. He also owned a factory in Rishikesh. His two vehicles bearing no. UP 15F 3702 and HR 38F 5011 after loading chuna left for Delhi on 6.1.07 and were unloaded at Okhla container Depot on 8.1.07. On truck no. UP 15F 3702 driver was Harish Kumar @ Raju & conductor was Prem Singh s/o Megh Singh r/o village Nangla Diyali PS Burhan, District Agra UP, and on truck no. HR 38F 5011 driver was Charan Singh and conductor was Mithun. On 9.1.07 driver Charan Singh called up his son Ankur Goel and asked as to where the truck being driven by driver Harish has been sent. His son told that the truck has not been loaded and asked him as to where Harish and Prem had gone after taking the truck. Charan Singh disclosed to him that last night at about 10 p.m they slept in the truck but they are not there now. His son tried to contact Harish on his mobile no. 9927099397 but it was switched off. They made search for them but no clue was found. He has also lodged report in the intervening night of 12/13.1.07 in this respect. He suspects that driver Harish and conductor Prem Singh had taken the truck to some place with wrong intention. He has given the description of the truck and driver Harish and conductor Prem. On this statement IO made his endorsement, prepared the rukka and got the case registered. The investigation was done and it was revealed that accused Prem Singh had brought the truck to his village on 18.1.07 and it is revealed that State Vs.Prem Singh FIR no.45/06 Page No. 2 of 38 Prem Singh has committed the murder of Harish and had thrown the dead body in the area of Bhagana, UP. Section 302/201 was added. Accused Prem Singh was arrested and he got recovered the truck and iron rod/lever (used in truck). He pointed out the place of incident as well as the place where he had thrown the dead body. After completion of investigation challan has been filed in the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 04.05.2007.
3. The charge against the accused Prem Singh has been framed u/s 302/201 IPC on 17.08.07 by Sh VK Bansal, Ld. ASJ to which the accused pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 29 witnesses.
5. The evidence against the accused was put to him in his statement recorded u/s 313 Cr.P.C in which he has pleaded his innocence and deposed that he has been falsely implicated in this case. He did not opt to examine any witness in his defence. Thereafter the case was fixed for final arguments.
State Vs.Prem Singh FIR no.45/06 Page No. 3 of 38
6. I have heard the Ld.Counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and Ld.counsel on behalf of the accused I have perused the testimonies of all the PWS.
8. PW1 Sabeer has deposed that nothing happened in his presence. He does not know anything about this case. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State but in vain.
9. PW2 Girish Saini has deposed that Harish was his real brother and driver on truck no. UP 15F 3702 on which Prem Singh was conductor. He came to know about missing of Harish and Prem Singh from his owner. In the village of Prem Singh they came to know that Prem Singh had come there ON 13.1.07 they made complaint. Thereafter accused was arrested from his village and he disclosed that he killed his brother Harish and thrown the dead body in Somna Kher (Aligarh). Aligarh police informed that one dead body was found in the forest of Somna Kher. He identified the photograph State Vs.Prem Singh FIR no.45/06 Page No. 4 of 38 of dead body and clothes of his brother. The photograph is Ex.PW2/A.
10. PW3 Kale Khan has deposed that he was working as Mali at Kangli Iglas, District Agra. He had not seen anything on 9.1.07. On 21.1.07 police had come with one person whom he cannot identify and police enquiry from him regarding seat cover and he told that he has not seen. He has also been declared hostile by the prosecution and cross examined by the Ld. APP for the State.
11. PW4 Yad Ram has deposed that on 9.1.07 he was carrying bricks from brick klin on his bhensa buggi and saw many persons collected at one place. He went there and saw a dead body having injury on the head. There was a tyre mark on the body. One cover of cane of milk was also lying there.
12. PW5 Babu Lal has deposed that on 9.1.07 he was going to Gohana and on the road one dead body of a male was lying. Police conducted panchnama as it was appearing that the death was casued due to accident.
13. PW6 SI Vinod Pal has deposed that on 20.1.07 he alongwith Ct. Dinesh and HC Bhiko ram reached in PP Okhla Indl. Area where one truck no. UP 15F 3702 was found parked. He State Vs.Prem Singh FIR no.45/06 Page No. 5 of 38 inspected the truck and constable photographed it. The report is Ex.PW6/A.
14. PW7 ASI Lallan Shah is the FIR recorder and he has brought the FIR register, copy of which is Ex.PW7/A.
15. PW8 SI Mahesh Kumar has prepared the scaled site plan which is Ex.PW8/A.
16. PW9 Ct. Dinesh has clicked the photographs of truck which are Ex.PW9/A1 to A5 and negatives are Ex.PW9/B1 to B5.
17. PW10 Nathu Giri is the witness for Aligarh and he is the watchman. He has stated that on 9th Jan. he found a large crowd, a cart and bicycle standing on the road. He stopped and found dead body lying on the side of the road with an injury on the back of head. He also found one cover of milk container lying near the dead body. He informed PS Gbhana.He has stated that the photographs Ex.PW2/A seems to be of the person seen dead by him lying on the side of the road.
18. PW11 ASI Bijender Singh has brought the papers on 20.3.07 from the office of SSP, Aligarh which were seized vie memo State Vs.Prem Singh FIR no.45/06 Page No. 6 of 38 Ex.PW11/A.
19. PW12 Ct. Arun Kumar has deposed that he had gone to PS Gbhana, Aligarh with Insp.Prakash Chand and accused Prem Singh. He has stated that accused led them ahead of Somana Railway Station and from near the road in jungle he pointed out the place of incident where he had thrown the dead body vide memo Ex.PW12/A and he pointed out the place where he had thrown the blood stained seat cover vide memo Ex.PW12/B.
20. PW13 Ct. Devender Singh has deposed that on 21.1.07 he accompanied the IO to PS Gbhana. He has stated that accused Prem Singh showed the place where he had dumped the dead body of Harish He further stated that accused led the Police to village Kandhli where accused pointed out a nursery where he had thrown the blood stained seat cover. IO recorded the statement of the gardner of nursery. the pointing out memos are Ex.PW12/A and B.
21. PW14 HC Nahar Singh has deposed that on 31.3.07 he went to PS Gbhana and collected the articles of deceased Harish from the PS i.e. one shirt, one sando baniyan, one sweater, one white paijama, one kalawa of red colour, one iron ring, one metal ring having green colour stone. He seized the same vide memo Ex.PW14/A State Vs.Prem Singh FIR no.45/06 Page No. 7 of 38 and after reaching Delhi deposited in PS Malkhana. He identified the above articles.
22. PW15 Charan Singh is the driver of truck no. HR 38F 5011 and he has stated that one Harish was driver on truck no. UP 15F 3702 and accused Prem Singh was the conductor on 6.1.07. He has stated that both the trucks were unloaded on 8.1.07 in container depot, Okhla. On 8.1.07 at about 9 p.m, quarrel took place between driver Harish and accused Prem and the matter was pacified by him and thereafter he and his conductor slept. Harish and his conductor, accused present in the court slept in their truck. He woke up at about 2.30 or 3 a.m and saw that truck was not there and in the morning he informed his owner. He made search for the truck but could not find it. Mr. Goel, his owner lodged the complaint with the police.
23. PW16 Mithun was working as conductor on truck no. HR 38F 5011 and he has deposed that in the night on 8.1.07 quarrel took place between Prem Singh and Harish working as conductor and driver on other truck no. UP 15F 3702 but it was pacified by PW15 and thereafter they went to sleep.
24. PW17 Sajjan Kumar Goel is the owner of truck no. UP 15F 3702 and HR 28F 5011. He has stated that on truck no. 3702 driver State Vs.Prem Singh FIR no.45/06 Page No. 8 of 38 was Harish and conductor was Prem Singh. On 9.1.07 call was received by his son from Charan Singh enquiring about truck no.3702. His son tried to contact Harish on his mobile but it was coming switched of. On 17.1.07 he lodged report which is Ex.PW17/A.Site plan was prepared which is Ex.PW17/B. Prem Singh was the resident of Agra and he was searched and arrested vide memo Ex.PW17/C and his personal search was conducted vide memo Ex.PW17/D. Accused was interrogated and his disclosure statement was recorded which is Ex.PW17/E. Clothes were sezhed vide memo Ex.PW17/F. Tee lever instrument was recovered vide memo Ex.PW17/G and truck was seized. The photograph of deceased Harish was recovered from Police Sation of the area where the dead body was thrown. He identified the iron rod(tee-lever) as Ex.PW17/P1 and black colour jacket Ex.PW17/P2.
25. PW18 Ankur Goel has deposed that he received call from Charan Singh on 9.1.07 regarding missing of truck and he informed his father. He identified the accused Prem Singh that he was working on truck no.UP 15F 3702.
26. PW19 Girish Saini is the brother of deceased Harish and he has stated that his brother was working as driver on truck and he received call on 10.1.07 regarding missing of his brother. He made State Vs.Prem Singh FIR no.45/06 Page No. 9 of 38 search for him. Accused was apprehended by the police and his disclosure statement was recorded. He went to PS Gobana and identified photographs of Harish which is Ex.PW2/A.
27. PW20 Dr.AK Rajvanshi has conducted the post mortem on the dead body of Harish and prepared the report which is Ex.PW20/B.
28. PW21 Rinku Yadav has deposed that he cannot identify accused Prem Singh. He saw police officials from Delhi Police in village Nangla Dayal and Srinivas Gupta told him that they have come in search of Prem Singh. The other people of the village were also present there at that time. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State.
29. PW22 Ct. Attar Ali is the witness from Aligarh has stated that he took the dead body for post mortem which was found lying on Pulia Khiderpur. The doctor handed over him the clothes of the deceased after post mortem.
30. PW23 HC Satya Narayan is the MHCM who made entries regarding depositing of case property in the malkhana.
31. PW24 Retired HC Pritam Singh Solanki is the witness State Vs.Prem Singh FIR no.45/06 Page No. 10 of 38 from UP Police and he has deposed that one chowkidar Nathu Giri handed over him a complainant regarding lying of dead body aside the Somna Kher Road. He prepared the site plan Ex.PW24/A. He conducted the punchnama. the photographs were also taken at the spot before sending the dead body to the mortuary which is Ex.PW2/A. He filled up form no. 379 Ex.PW20/A9 and applications for Post Mortem are Ex.PW20/A8 and A7. He preserved the clothes of the dead body. He had filled up CD Ex.PW24/C and CD-III is Ex.PW24/D. He had also sent application Ex.PW24/E for CRB. He has further deposed that on 20.1.07 SI Manoj Kumar came to PS Gabana alongwith brother of deceased and he had shown the clothes of the deceased as well as photographs to them which were seized by them. He identified the said clothes.
32. PW25 Insp. Prakash Chand is the IO of this case and he alongwith other police officials went to village Nangla Dyali on 19.1.07. Accused was arrested from his village and he was apprehended at the instance of Sajjan Kumar vide arrest memo Ex.PW17/C and his disclosure statement was recorded in which he has disclosed about the present case offence. Accused got recovered his wearing clothes which were seized vide memo Ex.PW17/F. The accused got recovered one truck which was recovered vide seizure memo Ex.PW17/G. Accused also got recovered one iron rod from the State Vs.Prem Singh FIR no.45/06 Page No. 11 of 38 truck. Accused pointed out the place of incident vide memo Ex.PW1/A. He sent SI Manoj Kumar to PS Gabana. He called the crime team and the photographs of the truck were taken. Accused took the police party to PS Gabana and pointed out the place where he had thrown the dead body. The pointing out memo is Ex.PW12/A. He sent HC Bijender to PS Gabana for collecting the documents of accident. He received the post mortem report of the deceased through SSP Aligarh with DO letter copy of which is Ex.PW25/A. He got prepared the site plan. He identified the case property.
33. PW26 Srinivas Gupta has stated that he does not know anything about this case. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State.
34. PW27 Ct. Rakesh Kumar has deposed that on 20.3.07 one officer from Delhi Police came to him and he (pw27) produced the report mark X to DSP. He handed over all the documents of FIR no. 12/07 u/s 279/338/304A IPC of PS Gbhana to him which were seized vide memo Ex.PW11/A.
35. PW28 HC Pradeep Kumar has deposed that he recorded statement Ex.PW7/A of Sajjan Kumar regarding missing of driver Harish and conductor Prem with truck no. UP 15F 3702. He made his State Vs.Prem Singh FIR no.45/06 Page No. 12 of 38 endorsement Ex.PW28/A and got the case registered through Ct. Tarun. On 18.1.07 he went to village Nangla Dayali and arrested accused Prem Singh from there and his disclosure statement Ex.PW17/E was recorded. He got recovered the clothe wearing at the time of murder. Accused got recovered the truck and iron rod. Accused pointed out the place of incident vide memo ex.PW1/A. He also went with the police team to Somna Railway station where accused had thrown the dead body, the pointing out memo is Ex.PW12/A. Accused also pointed out the place where he had thrown the seat cover vide memo Ex.PW12/B. He identified the case property.
36. PW29 SI Manoj Kumar has deposed that he recorded the statement of Charan Singh and helper of truck.He prepared the site plan Ex.PW17/B. He alongwith other police staff went to the village of accused and arrested him from there and recorded his disclosure statement. Accused got recovered truck and his clothes. Accused took them to Somna Railway Station and pointed out the place where accused had thrown the dead body. Girish brother of deceased had identified the photograph of his brother as well as clothes. He went to Dr. AK Rajwansi for subsequent opinion. He identified the photographs and clothes seized from the accused.
37. In the overall analysis of the testimonies of all the State Vs.Prem Singh FIR no.45/06 Page No. 13 of 38 witnesses it is revealed that PW2 Girish Saini is the brother of deceased, PW17 Sajjan Kumar Goel is the employer of deceased as well as accused, PW18 Ankur Goel is the son of PW17 and other witnesses are police officials and public witnesses joined during investigation. In this case no one has seen the accused committing the crime. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujarat, 1997(7) SCC 156 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some times unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710-11, Para 10) and in other catena of Judgments that when a case rests upon State Vs.Prem Singh FIR no.45/06 Page No. 14 of 38 circumstantial evidence, such evidence must satisfy the following tests:-
' (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty 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'.
It is further held that : -
'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8'.
38. So, in this case first the prosecution has to establish the presence of accused Prem Singh at the spot alongwith deceased Harish. PW17 Sajjan Kumar Goel who the employer of deceased as well as accused has stated that on 6.1.07 two trucks were loaded with lime from his factory at Rishikesh and proceeded for the destination container yard Okhla and unloaded on 8.1.07 in the morning. On truck no. DL15F 3702 driver was Harish @ Raju and cleaner/helper was Prem Singh. PW18 Ankur Goel has stated that he received call on 9.1.07 from driver of truck no. DL 38F 5011 named Charan Singh State Vs.Prem Singh FIR no.45/06 Page No. 15 of 38 asking as to where the other truck no. DL 15F 3702 has been sent. PW17 has also corroborated the version of PW18 stating that his son had received the call from driver Charan Singh. They searched for the truck but it could not be traced and then PW17 lodged the missing report which is Ex.PW17/A. In cross examination PW17 has stated that there was no appointment letter issued to Charan Singh as well as Harish . he did not maintain any record in writing regarding salary of these driver and of accused Prem Singh. Helper associated with Charan Singh in his truck no. 5011 was Mithun. PW18 Ankur Goel has also stated in cross examination that they do not issue any specific appointment letter to any driver/cleaner at the time of joining and they do not obtain their signatures on any voucher at the time of making payment to them. No suggestion has been put to both these witnesses by the Ld. defence counsel that accused Prem Singh and deceased Harish @ Raju has never worked with them on their truck. PW15 Charan Singh has also stated in his statement that he was working on the truck of Mr. Goel bearing no. HR 38F 5011 on which helper was Mithun and on other truck bearing no. UP 15F 3702 Harish Kumar was driver and Prem Singh was helper. PW16 Mithun has also corroborated the version of PW15 in this respect. From the corroborated versions of PW15,16, 17 & 18 it has been established by the prosecution that deceased Harish and Prem Singh were employed on truck no. UP 15F 3702. From the testimony of PW17 and 18 it has State Vs.Prem Singh FIR no.45/06 Page No. 16 of 38 further been established that on 8.1.07 the trucks were unloaded at container yard, Okhla, Delhi.
39. PW15 Charan Singh was the driver of truck no.HR 38F 5011 and PW16 Mithun was helper with him. PW15 Charan Singh has stated that on 8.1.07 at about 9 p.m, a quarrel took place between driver Harish Kumar and accused Prem and the matter was pacified by him and thereafter he and his conductor slept in his truck and Harish and his conductor, now accused also slept in their truck. Pw16 Mithun has corroborated the version of PW15 in this respect and stated that the quarrel took place between Harish and Prem Singh was pacified by his uncle and thereafter his uncle Charan Singh and he came to their truck and Harish and Prem Singh also went inside their truck. As per the case of the prosecution the murder has been committed in the intervening night of 8/9.1.2007. At about 9 p.m, deceased Harish as well as Prem Singh had quarrel as per the deposition of PW15 & 16 and thereafter both went to sleep in the truck. PW15 further stated that he woke up at 2.30 or 3 a.m and saw truck no. UP 15F 3702 was not there and thereafter in the morning he informed the owner of the truck. I have also considered the cross examination of both these witnesses. PW15 has stated that police recorded his statement on 17.1.07 in Police Post. He was taken to Police Station by Mr. Goel in the car on 16.1.07 and remained in the PS through out night. He joined as driver State Vs.Prem Singh FIR no.45/06 Page No. 17 of 38 with Mr. Goel one month prior to the incident. No appointment letter was given to him. His statement was not read over to him by the police. Harish was working with Mr. Goel for last one and half year. He denied the suggestion that firstly he quarreled with deceased. He denied the suggestion that no such incident had taken place or neither he saw the accused with deceased and no quarrel took place between them. PW16 has also stated that his statement was not read over to him. He also denied that no such quarrel took place between Harish and Prem Singh. No suggestion has been put by the Ld. defence counsel to PW16 that he did not see the accused in the company of deceased. There are some contradictions in the testimony of PW15 and 16 but those are of trivial nature and cannot be given any weightage. From the testimony of PW15 & 16 it is revealed that on the intervening night of 8/9.1.07 quarrel had taken place between accused Prem Singh and deceased Harish and thereafter both went to sleep together in their truck no.UP 15F 3702. Both were lastly seen by PW15 & 16 while going to sleep in the truck and thereafter the truck as well as accused had gone missing. So, in this case it has been established by the prosecution that accused and deceased were together on the intervening night of 8/9.1.07 and thereafter murder of Harish came into limelight. So, last seen evidence is present in this case.
State Vs.Prem Singh FIR no.45/06 Page No. 18 of 38
40. In this case the recovery of dead body has been effected within the jurisdiction of PS Gbhana from Somna Kher Road. PW4 Yad Ram is the witness from Aligarh and he has stated that on 9.1.07 he was carrying brick from brick klin on his bhensa buggi to his village and on the road he saw many persons collected. He went there and saw one dead body having head injury. There was tyre mark on the body.He has not been cross examined. PW5 Babu Lal is also the witness from Aligarh and he has also stated that on 9.1.07 he was going to Gbhana and on the road he saw dead body of one male person and it was appearing that the death was caused due to accident. PW10 Nathu Giri has also stated that he was going to Gbhana for taking articles and on the way he found crowd and one cart and bicycle was also standing there. He saw a dead body lying there having head injury He informed PS Gbhana being watchman. Photograph Ex.PW2/A seems to be of the person who was seen by him lying on the side of the road. Ex.PW2/A has been identified by PW2 Girish Saini who is the brother of deceased. So,it is clear the the dead body of Harish @ Raju was seen by the above witnesses PW4,5& 10 within the jurisdiction of PS Gbhana. None of the above PW4,5 & 10 has been cross examined. The testimony of PW10 Nathu Giri has been corroborated by UP Police witness PW24 Retired HC Pritam Singh who has stated that one chowkidar Nathu Giri handed over him a written complaint regarding lying of dead body aside Somna Kher Road and on that State Vs.Prem Singh FIR no.45/06 Page No. 19 of 38 complaint case vide FIR no. 8/07 u/s 279/304A IPC has been registered. Further he conducted the investigation and taken the photograph of the dead body which is Ex.PW2/A. He got conducted the post mortem and preserved the clothes of the deadbody and dead body was cremated. PW4,5 & 10 are the public witnesses from Aligarh and there is no reason to disbelieve their versions. Also no suggestion has been put to them that they did not see any dead body at the spot and no suggestion has been put to PW24 Retired HC Pritam Singh Solanki that PW10 did not made any complaint about lying of dead body . So, it has been proved by the prosecution that dead body photographs of which is Ex.PW2/A has been recovered by Aligarh UP, Police on 9.1.07. The photograph has been identified by PW19 Girish Saini as the photograph of his brother Harish. So, it has been established that it was the dead body of driver Harish @ Raju.
41. Accused Prem Singh has been arrested in this case on 19.1.2007. PW17 Sajjan Kumar Goel lodge his report with PS Okhla Industrial Area which is Ex.PW17/A. It was disclosed by driver Charan Singh that after quarrel both deceased and Prem Singh went to sleep in the truck. Prem Singh was resident of Village Nangla Dayali and he has stated that he was found in his village on 19.1.07 and arrested vide memo Ex.PW17/C and his personal search was conducted vide memo Ex.PW17/D. In cross examination he has stated State Vs.Prem Singh FIR no.45/06 Page No. 20 of 38 that he met the police and conveyed the address of Prem Singh. He had accompanied the police official perhaps 4 or 5 in number. He cannot tell who met in the house of Prem Singh. Accused was apprehended on 19.1.07 and he has accompanied the police at the time of recovery of clothes. Accused was apprehended sometime between 10 am to 12 noon. By putting this question it has been admitted by the defence that accused was apprehended between 10 to 12 noon. No question has been put to him that accused was not arrested as alleged by him. PW2 Girish has also been examined as PW19 in this case and he has stated that accused Prem Singh was found in his village and he was arrested from there and he disclosed about killing of his brother Harish and that he had thrown the dead body in the forest of Somna Kher. In cross examination he has stated that he saw the accused first time from where he was arrested. The accused was arrested from his house in Agra and other family members were also present at the house at the time. PW21 Rinku Yadav is the public witness from Agra. He has stated that he cannot identify accused Prem Singh. He went to take the labour on the tubewell of Srinivas Gupta and saw some police officers from Delhi Police sitting there. He is a hostile witness. However in cross examination conducted by the Ld. APP for the State he has admitted that accused Prem Singh is the resident of village Nangla Dayali. He did not support the case on the aspect what accused has told to him about committing the murder. But since this witness State Vs.Prem Singh FIR no.45/06 Page No. 21 of 38 belonged to the village nearby the village of accused, he can be terms as interested witness. PW26 Srinivas Gupta is also the witness from village Nangla Dayali but he also turned hostile and did not support the case of the prosecution. However, in cross examination he has admitted that police met him on 18.1.07 in connection with this case on his tubewell outside his house and made enquiries from him. He admitted that accused Prem Singh is the resident of his village and he is tau/uncle of Prem Singh. He also did not support his version about the confession made by the accused before him. But because of close relation with accused Prem Singh, he might have deposed falsely in order to save him from legal consequences. PW28 HC Pradeep and PW25 Insp. Prakash Chand and PW29 Insp.Manoj Kumar are the official witnesses of arrest of accused in this case. PW28 HC Pradeep Kumar has stated that when he reached on the another boundary of village during his course of investigation one village Srinivas Gupta met him and disclosed him that accused Prem Singh disclosed him about committing the murder of Harish. He has stated that accused was arrested from his village. PW25 Insp Prakash Chand and PW29 Insp. Manoj Kumar have also corroborated the version of other witnesses about arrest of accused from his village. It is well settled law that testimonies of hostile witnesses can be considered if supported by other witnesses. The public witnesses from Agra have not supported regarding arrest of accused and confession made to State Vs.Prem Singh FIR no.45/06 Page No. 22 of 38 them. But it has been supported by other witnesses. The testimonies of above PWS could not be shattered by the Ld.defence counsel in cross examination. So, the arrest of accused Prem Singh has successfully been proved by the prosecution.
42. PW25 Insp.Prem Chand, PW28 HC Pradeep and PW29 Insp.Manoj Kumar have further deposed the version of each other and corroborated that accused has made disclosure statement which is Ex.PW17/E and thereafter got recovered the cloth worn by him at the time of incident i.e. one shirt,pant and black colour jacket having blood stains on them, the same were taken into possession vide memo Ex.PW17/F and thereafter he got recovered the truck in question i.e. Machhli wali pulia near Cinema, Naraich, Agra. The seizure cum pointing out memo is Ex.PW17/G. The said truck no. UP 15F 3702 has been identified by PW17 Sajjan Kumar Goel as belonging to him. All the PWS have further stated that accused got recovery iron rod (tyre lever) from the back seat of the truck. The iron rod is Ex.PW17/P1. In cross examination PW17 has stated that after recovery clothes accused took them to the place where he had parked the truck. So, it has been admitted on behalf of the accused that recovery of clothes as well as truck was effected from the accused. On the basis of disclosure statement Ex.PW17/E recoveries have been effected i.e. of clothes of accused as well as iron rod(tyre lever) and State Vs.Prem Singh FIR no.45/06 Page No. 23 of 38 even the truck on which accused was employed has also been recovered vide memo Ex.PW17/F. The testimonies of above PWS could not be shattered by the Ld. defence counsel. So, the disclosure statement of accused Ex.PW17/E is proved and taken into consideration in evidence. Therefore, it has been proved that accused has got recovered his wearing clothes, iron rod and truck in this case. On the basis of disclosure of accused, he pointed out the place of incident vide memo Ex.PW1/A. PW1 Sabeer is the hostile witness. However, he admitted his signatures on Ex.PW1/A in cross examination conducted by the Ld. APP for the State and even he has stated that he does not know for what purpose police had obtained his thumb impression on the document as he is illiterate. PW28 HC Pradeep has stated that accused pointed out the place of incident vide memo EX.PW1/A and he prepared the said memo. PW25 Insp.Prakash has also stated that accused pointed out the place of incident vide memo Ex.PW1/A. Further, accused Prem Singh has pointed out the place vide memo Ex.PW12/A where he had thrown the dead body after murder. PW12 Ct. Arun Kumar has stated that on 21.1.07 accused led the police party ahead of Somna Railway Station and pointed out the place near the road where he had thrown the dead body. He has not been cross examined. PW13 Ct. Devender Singh has also stated that accused pointed out the place where he had thrown the dead body as well as the place where he had thrown the seat cover State Vs.Prem Singh FIR no.45/06 Page No. 24 of 38 vide memo Ex.PW12/A and B. In cross examination he has stated that he alongwith IO directly reached the spot where the accused pointed out the place where the dead body was thrown. By putting this question, admission has come on record the accused has pointed out the place where he had thrown the dead body. PW19 Girish Saini has also corroborated the version of official witnesses in respect of pointing out made by the accused. NO question has been put to Pw19 by the defence counsel that accused did not point out the place vide memo Ex.PW12/A. So, in view of the corroborative statements, it has been established that accused has pointed out the place where he had thrown the dead body on 9.1.07. Recovery of dead body within the jurisdiction of PS Gbhana has also been proved by the testimony of PW4,5,10 and 24 who are the witnesses from Aligarh. Delhi Police was not aware of the place where the dead body was thrown after murder by the accused. It is the accused who disclosed to the police about this fact and took the police party to that place. On enquiry from PS Gbhana PW29 SI Manoj came to know that dead body was found on 9.1.07 from the road which lead to GT Road from Kher and FIR no. 12/07 has been registered u/s 279/304A/338 IPC. HC Pritam Singh Solanki met him in the PS and shown the photographs and belongings of deceased at that time. PW24 HC Pritam Singh Solanki has been examined as PW24 and he has corroborated the version of PW29 that on 20.1.07 SI Manoj Kumar came to PS Gbhana alongwith State Vs.Prem Singh FIR no.45/06 Page No. 25 of 38 the brother of deceased and he showed the clothes of deceased as well as photographs and brother of deceased identified the photograph and clothes of his brother. PW19 has also corroborated the version of PW29 and PW24 and he has stated that he identified the photograph shown to him in PS Gabana and also identified the clothes of his brother Harish. He also identified the same in the court as these were brought to Delhi by PW14 HC Nahar Singh after seizing vide memo Ex.PW14/A and then he deposited in the malkhana. No question/suggestion has been put to PW19 Girish Saini that he did not accompany the police to PS Gabana or that he did not identify the photograph and clothes of his brother. The place where the dead body was thrown was not know to Delhi police and it was disclosed by accused. Then the photographs and clothes of deceased were identified by his brother. So, this is also one of the circumstance in evidence which connect the accused with the present case offence. It is stated in case law Subhash Vs. State of Haryana, AIR 2008 Supreme Court 448 that:-
'Penal Code (45 of 1860), Ss.392, 397, 300,304 Part II - Robbery and murder - Proof - Accused person allegedly threw deceased and other person into canal after committing robbery of money and tractor - Nothing on record to doubt presence of said person at scene of occurrence - Circumstances of recovery of dead body of deceased, recovery of tractor from possession of accused and Barma from possession of co -accused proved guilty
- Prosecution had established guilt of appellant beyond State Vs.Prem Singh FIR no.45/06 Page No. 26 of 38 all reasonable doubt.' It is stated in case titled Amit Singhi Bhikam Singh Thakur Vs. State of Maharashtra, (2007) 2 Supreme Court Cases 310 that :-
A. 'Evidence Act, 1872 - Sec.27 - Discovery of fact in consequence of information received from accused - required of S.27 stated - "Facts discovered" also includes mental fact such as the place from which the object is produced and knowledge of accused as to this - only that portion of the information which relates to the fact discovered is admissible'.
B. 'Criminal Trial - Circumstantial evidence - Recovery of crime object on the basis of information given by accused - Provides a link in the chain of circumstances - Is seldom the foundation of the prosecution case'.
43. PW20 Dr. A.K. Rajvanshi has conducted the post mortem on the dead body of Harish on 10.1.07. The dead body was removed to the hospital by PW22 Ct. Attar Ali and he also identified the photograph Ex.PW2/A as the same which was removed by him to the hospital. Pw20 is the witness from District Hospital Hardwar. He prepared 11 documents colly. Ex.PW20/A1 to A11. I have also perused the said documents. As per documents one dead body of unknown Hindu male was recovered aside the road and as per panchnama it was death due to accident. The Post mortem report is State Vs.Prem Singh FIR no.45/06 Page No. 27 of 38 Ex.PW20/B. As per post mortem report following injuries are mentioned:-
1. Lacertated wound in 8cm x 6 cm x bone deep on the left side of back of scalp
2. Abrasion 4 cm x 1 cm on back.
The occipital bone was found fractured. The cause of death has been opined due to shock and haemorrhage as a result of ante mortem injury. The doctor PW20 has seized the clothes and handed over to the police which has been identified by PW19 Girish. PW20 has also identified the clothes seized by him from the dead body. In cross examination he has stated that such type of injuries can be possible due to fall from the roof. This suggestion put by the ld. defence counsel cannot be considered because there was no roof at the place from where the dead body was recovered. It was recovered from aside the road. No suggestion has been to PW20 by the ld. defence counsel that he has not conducted the post mortem or that he has not seized the clothes of the deceased. So, the post mortem report has been proved by the prosecution. As per post mortem the injury was found on the back of the scalp. As per disclosure statement of accused Ex.PW17/E, accused had given 2/3 blow with iron rod(tyre lever) on the head of deceased Girish. Post mortem report also shows the injury on the head of deceased Girish. The iron rod (tyre lever) was got recovered by the accused from the truck and it has been produced in the court and State Vs.Prem Singh FIR no.45/06 Page No. 28 of 38 identified by the witnesses. So, the prosecution has been able to prove that the injury caused on the head of deceased, was caused with iron rod(tyre lever) Ex.PW17/P1. The injuries found by PW20 gives strength to the case of the prosecution as it has been corroborated by the testimonies of other PWS as well as the other circumstances of the case.
44. After finding the dead body, UP Police has registered a case u/s 279/304A/338 IPC. PW24 HC Pritam Singh Solanki has received the information in this case from one Nathu Giri about lying of dead body. The dead body was found lying aside the road having injury on the head. It has been written in the police proceedings that a unknown dead body was found. No one has identified the said dead body. Since it was lying aside the road, it seems that on the basis of that UP Police has registered a case u/s 279/304A/338 IPC. But when Delhi Police approached PS Gbhana, they handed over the said proceedings to Delhi Police. The same were collected by PW11 HC Birender of Delhi Police from PW27 Ct. Rakesh Kumar of Aligarh Police and they both have corroborated the version of each other in this respect. The proceedings are Ex.PW24/A to E. Since the facts about the present case has been disclosed by the accused himself and he took the police to the place where he had thrown the dead body and UP Police has also recovered the same from that place on 9.1.07, it State Vs.Prem Singh FIR no.45/06 Page No. 29 of 38 cannot be considered that the deceased had died because of road accident. Infact he was murdered by accused Prem Singh and then thrown aside the road to establish that he had died because of accident. Also PW20 who has conducted the post mortem has not mentioned any such injury by which it could be established that the deceased has died because of accident. On other other hand when PW15 Charan Singh and PW16 Mithun had seen both accused and deceased together in the night at about 9 p.m as to how the dead body of deceased Harish has been recovered by UP Police from the jurisdiction of PS Gbhana while the truck in question has been recovered from accused Prem Singh.
45. I have also perused the FSL result signed by Director, CFSL, Kolkata. As per Ex.PX1; Ex.A1 i.e bush shirt, Ex.1B i.e. sandow banyan, Ex.1C i.e. woolen Sweater and Ex.1D i.e. Paijama were found positive for human blood and Ex.1E i.e. Kalawa was found negative for blood. However, no blood group could be ascertained. As per Ex.PX2, blood could not detected on Ex.1A i.e. one jacket, Ex.1B i.e. one shirt, Ex.1C i.e. pant and Ex.2 i.e. iron rod. So, in this case human blood was found on some articles but blood group could not be ascertained on any of the article seized by the police. It seems that the blood got putrified and hence the blood group could not be detected. It is stated in case titled Motiram Gaman Pawan Vs. State of State Vs.Prem Singh FIR no.45/06 Page No. 30 of 38 Maharashtra, JT 2002 (2) SC 637 that :-
'Sections 3, 27 with Indian Penal Code, 1860 - Section 302 - circumstantial evidence - Appreciation - Blood -
stained clothes and knife recovered at the instance of accused - CFSL report showing it to be human blood - No grouping done due to disintegration of blood spots
- Not established that blood on cloth and knife was of deceased - If chain is incomplete and benefit goes to accused. Held that merely on this ground, chain cannot be stated to be incomplete'.
46. I have also perused the testimonies of other witnesses. PW6 SI Vinod Kumar is the witness from crime team and he prepared his report Ex.PW6/A and he has stated that some photographs of truck were taken.PW9 Ct. Dinesh has taken the said photographs and proved the same as Ex.PW9/A1 to A5 and negatives as Ex.PW9/B1 to B5. Both the witnesses have not been cross examined. So, it has been proved by the prosecution that the photographs of truck has been taken at PP Okhla. PW7 ASI Lallan has stated that he recorded FIR no. 45/07 on the basis of rukka brought by Ct. Arun. His testimony has been corroborated by PW28 HC Pradeep who sent the rukka. So, copy of FIR has successfully been proved by the prosecution. PW8 SI Mahesh Kumar is the formal witness who prepared the scaled site plan Ex.PW8/A. PW23 HC Satya Narayan is the MHCM who made entries regarding depositing of iron rod and clothes of deceased as well as truck in malkhana vide entry Ex.PW23/A and B. Pw25 Insp. Prakash State Vs.Prem Singh FIR no.45/06 Page No. 31 of 38 Chand, PW28 HC Pradeep and PW29 Insp.Manoj Kumar are the witnesses of investigation and they have corroborated the version of each other in respect of investigation. In this case each and every witness of the prosecution has given consistent statement before the court. I have also perused the cross examination of these witnesses but their testimonies could not be shattered by the ld. defence counsel. However, I have found some contradiction in their statements but those are of trivial nature which can be natural and possible due to lapse of time and these contradictions can be ignored rightly by the courts in view of the observation of case law Asha @ Ashanand & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155.
47. In his statement u/s 313 Cr.P.C accused has taken the plea that he has not disclosed anything and nothing has been recovered at his instance or from his possession. Police has picked him up from his house and falsely implicated in this case because he was working with Sajjan Kumar prior to the incident and left the service before few days of the incident. He has not stated as to how the police came to know about the place from where the dead body was recovered. It has been admitted by him that he was apprehended by the police from his resident. He also admitted that he was working with Sajjan Kumar PW17 in this case. Accused Prem Singh has not examined any witness in defence to prove that he has been falsely implicated in this case.
State Vs.Prem Singh FIR no.45/06 Page No. 32 of 38 Pw17 Sajjan Kumar in cross examination has stated that the accused has sent a letter through post from jail addressed to him and he placed the same on record in original. The letter is Ex.PW17/X and envelope in which this letter was received is Ex.PW17/Y. I have also perused the said letter. In the said letter, he has stated that whatever mistake he has committed, it was not committed intentionally and he does not know as to what type of time was that'. Vide said letter the accused has tried to pray before PW17 that he should not depose against him. In his statement u/s 313 Cr.PC, he has not stated that this letter Ex.PW17/X was not written by him to Sh Sajjan Kumar Goel. By writing this letter accused Prem Singh himself has pleaded his guilty in this case.
48. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important 2aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the State Vs.Prem Singh FIR no.45/06 Page No. 33 of 38 accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case the motive was to take revenge. PW15 Charan Singh and PW16 Mithun have clearly and emphatically stated that quarrel had taken place between accused Prem Singh and deceased Harish on 8.1.07 at about 9 p.m. But it was pacified by PW15 and thereafter both Prem Singh and Harish went to sleep in the truck. As per disclosure statement Ex.PW17/E which is now admissible in evidence, accused has stated that he could not sleep and he thought of punishing Harish for abusing him and talking to him in nonsensical manner and he picked up the iron rod and gave blows on the head of Harish while he was sleeping. So, the motive to kill Harish @ Raju has been established by the prosecution in this case.
49. It is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. In this case the prosecution has been able to prove each and every circumstance by leading legal, reliable and unimpeachable evidence leaving no room for doubt.
50. In view of my above discussions I am of the view of the State Vs.Prem Singh FIR no.45/06 Page No. 34 of 38 the prosecution has left no stone unturned to prove its case against the accused. I, therefore, hold accused Prem Singh guilty for the commission of offence punishable u/s 302/201 IPC and convict him thereunder.
Announced in the open Court on 13.09.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Prem Singh FIR no.45/06 Page No. 35 of 38 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.136/09 FIR No.45/07 U/s 302/201 IPC PS Okhla Industrial Area State Vs.
1. Prem Singh S/o Sh Megh Singh r/o Village Nangla Diyali, P.O. Khanda PS Burhun District Agra (UP) .......... Accused ORDER ON THE POINT OF SENTENCE Accused Prem Singh has been held guilty for the commission of offence punishable u/s 302/201 IPC & convicted thereunder vide Judgment dated 13.09.2010.
2. I have heard the arguments on the point of sentence. During the course of arguments it has been submitted on behalf of accused/convict Prem Singh that he is young boy of 30 years of age. He is unmarried. He is not previous convict and no other case is registered against him. He belongs to a poor State Vs.Prem Singh FIR no.45/06 Page No. 36 of 38 family and being elder son in the family, he has burden of all the family responsibility on his shoulders. He remained in jail since 19.1.2007. It has further been submitted that this case does not fall under the category of rarest of the rare cases. So, lenient view may be taken against the accused/convict.
3. Keeping in view the facts and circumstances of the case and the act done by the convict, I am of the view that he is not entitled to any leniency because the convict has given iron rod blow/tyre lever blow on the head of his associate while he was sleeping and due to this act of the convict his colleague (driver) has died. So he has caused distrust being colleague of deceased. Undoubtedly brutality is involved in every incidence of murder but that brutality by itself will not bring it within the ambit of the rarest of the rare cases for the purpose of death penalty. Reference can be made to Subhash Ramkumar Bina @ Vakil Vs. State of Maharashtra, AIR 2003 SC 269. In Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 their Lordship of Supreme Court observed that the death sentence should be awarded only in the 'rarest of rare' cases where the alternative option is unquestionably foreclosed. It was observed that statutory mandate of sec.354 Cr.P.C enjoins a duty on the court to give 'special reasons' as justification for award of capital sentence.
4. In Machchi Singh Vs. State of Punjab, AIR 1983 SC 957 their Lordship held that humanistic edifice is constructed on the foundation of 'reverence for life' but deviation from the principal and 'killing the killer' is justified only when self-preservation of society is in peril.
State Vs.Prem Singh FIR no.45/06 Page No. 37 of 38
5. Taking into consideration the facts of the present case, I am of the opinion that this case does not fall under the category of rarest of the rare cases. So, convict Prem Singh is ordered to undergo Imprisonment for Life and to pay fine of Rs.5000/- u/s 302 IPC and in default of payment of fine to further undergo SI for three months.
6. Accused/convict Prem Singh is further ordered to undergo RI for three years and to pay fine of Rs.1000/- u/s 201 IPC and in default of payment of fine to further undergo SI for one month.
7. The benefit of sec.428 Cr.P.C be given to the convict. Both the sentences of convict shall run concurrently. Copy of this order on the point of sentence and copy of Judgment be given to the convict free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the Open Court on 16.09.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Prem Singh FIR no.45/06 Page No. 38 of 38