Delhi District Court
State vs . Bantoo on 31 July, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 61/2011
Unique Case ID No. 02404R0164292011
State Vs. Bantoo
S/o Late Sh. Bhoop Singh
Vegabond, Jahangir Puri,
Delhi
(Convicted)
FIR No.: 61/2011
Police Station: Mahendra Park
Under Section: 302 Indian Penal Code
Date of Committal to Sessions Court: 11.7.2011
Date on which orders were reserved: 20.7.2012
Date on which judgment announced: 23.7.2012
JUDGMENT:
(1) As per allegations on 18.3.2011 at about 10:00 PM the accused Bantoo came in the house of Smt. Bachno Devi and took her son namely Shyam with him after which they both went towards MCD Toilet, J Block in between 1141 and 1215 wali gali, Jahangir Puri. At that time the accused was having a knife in his hand and after some time i.e. at about 10:30 PM the accused stabbed Shyam thereby committed the murder of Shyam.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on the intervening night 1819.3.2011 Ct. Narender Maan was on patrolling and when he reached the MCD toilet of J Block, Jahangir Puri, Delhi at 12:30 AM (midnight), a large number of public persons were gathered there. On inquiry he came to know that one person by the name of Shyam has been murdered and one Ravi produced the accused Bantoo before him as the boy who had committed the murder of Shyam. In the meantime information was received at Police Station Mahindra Park regarding a murder at J Block between 1000 and 2000 wali line, near public toilet pursuant to which DD No. 4A was recorded. Pursuant to the same SI Sandeep along with Ct.
Subhash reached the spot where Ct. Narender Maan produced the accused Bantoo before him. Smt. Bachno Devi the mother of the deceased and Ravi brother of the deceased were present at the spot. Smt. Bachno Devi informed the police that her son Shyam was suffering from Polio and was a drug addict and frequently consumed smack with his friend Bantoo. According to Smt. Bachno Devi, at about 10:00 PM Bantoo came to her house and took her son Shyam with him when she had seen both Bantoo and Shyam going towards MCD public toilet J Block. She further told the police that when Bantoo came to their house she had seen a kitchen knife in the hand of Bantoo on which she asked Bantoo to throw the same which he did not do. Smt. Bachno Devi also informed the police that after some time they heard cries and shouts and when she came out she St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 2 saw Bantoo in the street, shouting that he had killed Shyam who was lying in the public toilet. According to her, Bantoo tried to run away from the spot but her nephew Ravi chased Bantoo and apprehended him near IBlock, Public Toilet.
(3) On the basis of the statement of Smt. Bachno Devi the present FIR was got registered and the accused Bantoo was arrested in this case. Pursuant to his disclosure statement the accused Bantoo got recovered the knife from the garbage near the entry gate of MCD Public Toilet at J Block, Jahangir Puri, Delhi. After completion of investigations, charge sheet was filed against the accused Bantoo.
CHARGE:
(4) Charge under Section 302 Indian Penal Code was settled against the accused Bantoo to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. Witness Name Category of witness No. No. 1. PW1 Ct. Dalbir Singh Crime Team Photographer 2. PW2 SI Manohar Lal Draftsman St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 3 3. PW3 ASI Devender Singh PCR official who had reached the spot 4. PW4 Ct. Vinod Pandey Official from CPCR 5. PW5 SI Manoj Kumar Police witness who had taken the weapon of offence from MHCM for subsequent opinion 6. PW6 Ct Sudesh Police witness who had delivered the special reports 7. PW7 Sonu Public witness who had made PCR call 8. PW8 Susheel Elder brother of the deceased who had identified the dead body of deceased 9. PW9 Ajay Singh Elder brother of the deceased who had identified the dead body of deceased 10. PW10 Dr. Bhim Singh Autopsy Surgeon 11. PW11 Bachno Devi Mother of the deceased 12. PW12 Dr. Deepak Chugh Doctor from BJRM Hospital who has proved the MLC of the injured/ deceased 13. PW 13 L/ Ct. Usha PCR official who had proved the PCR form 14. PW 14 HC Raghunath MHCM 15. PW 15 Sh. Bhagwan Dass Uncle of the deceased 16. PW 16 Ravi Cousin brother of the deceased and a witness 17. PW17 SI Devender Singh Incharge Mobile Crime Team 18. PW 18 Ct. Sanjay Police witness who had taken the pullandas to FSL St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 4 19. PW 19 Ct Narender Mann Police witness who was on patrolling duty and had reached the spot 20. PW 20 ASI Vishram Lal Duty Officer 21. PW 21 Ct. Subhash Police witness who had gone to the spot along with SI Sandeep Kumar 22. PW 22 SI Sandeep Kumar Initial Investigating Officer 23. PW23 Dr. Rajender Kumar Forensic Expert 24. PW 24 Insp. Jawahar Singh Investigating Officer List of documents Sr. Exhibit No. Detail of documents Proved by No. 1. Ex.PW1/1 Affidavit of Ct. Dalbir Ct. Dalbir 2. Ex.PW1/A Photographs 3. Ex.PW1/B Negative 4. Ex.PW2/1 Affidavit of SI Manohar Lal SI Manohar Lal 5. Ex.PW2/A Scaled site plan 6. Ex.PW3/1 Affidavit of ASI Devender Singh ASI Devender 7. Ex.PW3/A Copy of Log book Singh 8. Ex.PW4/1 Affidavit of Ct. Vinod Pandey Ct. Vinod Pandey 9. Ex.PW5/1 Affidavit of SI Manoj SI Manoj 10. Ex.PW6/1 Affidavit of Ct. Sudesh Ct. Sudesh 11. Ex.PW8/A Statement of Susheel Susheel 12. Ex.PW9/A Statement of Ajay regarding dead Ajay body identification 13. Ex.PW9/B Dead body handing over memo 14. Ex.PW10/A Postmortem report Dr. Bhim Singh 15. Ex.PW10/B Request for Postmortem St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 5 16. Ex.PW10/C Brief Facts 17. Ex.PW10/D Death report ( Form 25:35) 18. Ex.PW10/E MLC 19. Ex.PW10/F Statement of Ravi regarding dead body identification 20. Ex.PW10/G Opinion on weapon 21. Ex.PW10/G1 Sketch of knife 22. Ex.PW13/A Affidavit of Lady Ct. Usha Lady Ct. Usha 23. Ex.PW13/A PCR Form 24. Ex.PW14/A Copy of Register No. 19 HC Ragunath 25. Ex.PW14/B Copy of Register No. 21 26. Ex.PW15/A Arrest memo of Accused Sh. Bhagwan 27. Ex.PW15/B Personal search memo Dass 28. Ex.PW16/A Disclosure statement Ravi 29. Ex.PW16/B Seizure memo of Accused Cloths 30. Ex.PW16/C Sketch of knife 31. Ex.PW16/D Seizure memo of knife 32. Ex.PW17/A Crime team Report SI Devender Singh 33. Ex.PW19/A Seizure memo of Exhibits Ct. Narender Mann 34. Ex.PW20/A DD NO 4A ASI Vishram Lal 35. Ex.PW20/A FIR 36. Ex.PW20/C Endorsement on Rukka 37. Ex.PW20/D DD No .7A 38. Ex.PW21/A Seizure memo of match box Ct. Subhash 39. Ex.PW21/B Seizure memo of Chappal 40. Ex.PW22/A Pointing out memo SI Sandeep Kumar St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 6 41. Ex.PW23/A Biological Report Dr. Rajender 42. Ex.PW23/C Forwarding Report Kumar 43. Ex.PW24/A Rukka Insp Jawahar 44. Ex.PW24/B Seizure memo of earth control Singh 45. Ex.PW24/C Site Plan 46. Ex.PW24/D PCR Form EVIDENCE: (6) In order to prove its case the prosecution has examined as many as Twenty Four witnesses as under: Public witnesses/ eye witnesses: (7) PW7 Sonu has deposed that he is a vegetable vendor and on
19.03.2011 at about 1212:30 AM (midnight) he was sleeping in his house along with his family members. According to him, he heard noise from the street on which he came out and some public person informed him that murder has taken place in the Sauchalya, 10001200 in between the street. The witness has deposed that he made a telephonic call at 100 number from his mobile No. 9289909057 which was attended by one lady. According to him, the PCR came to the spot and he informed the PCR official that he had made a call to PCR and his statement was recorded by the police.
(8) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he cannot tell the name of the public person who informed him that murder had taken place. According to him, the PCR St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 7 reached at the spot after about one hour and after some time the local police also came there but he does not remember as to when local police came to the spot. Witness has denied the suggestion that he was not present at his house on that day or that he did not make any call to the police. Witness has denied the suggestion that he was deposing falsely only at the instance of Investigating officer.
(9) PW8 Susheel has deposed that he is driver by profession and on 19.03.2011 he came to his house after attending his duty as a driver. According to him, at about 7:30 AM he was informed by his mother that his younger brother Shyam Singh had been killed by Bantoo and had been caught by the police. Thereafter on hearing this, he went to BJRM hospital directly from his house where he saw the body of his younger brother Shyam Singh and identified the same. Thereafter his statement to this effect was recorded by the Investigating officer vide memo Ex.PW8/A and after getting the postmortem conducted the dead body was received by them.
(10) In his crossexamination by Ld. Defence Counsel, the witness has admitted that on the night of this incident, he was on duty as he was working as driver and used to drive the truck of Amul. Witness has admitted that he received the information from his mother regarding death of his brother. Witness has admitted that he did not see as to who had killed his brother.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 8 (11) PW9 Ajay Singh has deposed that he is a driver by profession and he used to drive the vehicle of Amul. According to him, on 19.03.2011 he was on duty and at about 6 AM he came to his house from his duty and came to know from his mother that his younger brother Shyam Singh has been killed by one Bantoo and had been apprehended by the police and on hearing this he went to the BJRM hospital directly from his house where he saw the dead body of his younger brother Shyam Singh and identified the same. According to him, the Investigating Officer recorded his statement in this regard vide Ex.PW9/A and the postmortem on the dead body was conducted after which it was handed over to him vide receipt Ex.PW9/B. (12) In his crossexamination by Ld. Defence Counsel, the witness has deposed that at the time of incident he was not present in his house. Witness has admitted that he received the information from his mother only regarding killing of his brother. According to him the name of Bantoo as assailant was given to him by his mother. Witness has denied the suggestion that he was deposing falsely at the instance of the Investigating Officer.
(13) PW11 Bachno Devi has deposed that she is a housewife and has four sons and three daughters. According to her, the deceased Shyam was her second son whose right hand had been afflicted with Polio and he was handicapped. According to her, Shyam was 10th class pass and had become addicted to smack for the last seven to eight years when he used St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 9 to consume smack along with accused Bantoo (correctly identified by the witness in the Court). According to the witness, her son Shyam and the accused Bantoo used to indulge into begging for purchase of smack. She has further deposed that on the night of 18/19.03.2011, Bantoo came to her house and took her son Shyam with him. According to her, she had told her son Shyam to take his dinner but he refused to take food and went away with Bantoo and thereafter she saw both of them entering in the public toilet situated at JBlock, which is visible from her house. The witness has also stated that she had also seen one small kitchen knife in the hand of Bantoo and she called out to Bantoo and asked him why he was having knife in his hand and asked him to throw the knife but both her son Shyam and Bantoo did not pay any heed to her and entered the MCD urinal and she saw them climbing the stairs of the toilet. According to her, she was not suspicious of Bantoo because her son and Bantoo normally used to sit in this public urinal and consume smack. She has further deposed that after about one hour to one hour fifteen minutes, she could hear the shouts of the accused Bantoo who was shouting very loudly by saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di". According to the witness, at that time she was standing outside her house and saw Bantoo coming out of the toilet and running away. On this she immediately called out her nephew Ravi and asked him to find out what had happened while she herself went towards the toilet but did not enter the same because of the filth which was lying St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 10 inside. Witness has further deposed that in the meanwhile Ravi who had followed Bantoo, caught him from the Iblock public toilet and brought him back and handed over him to the police, thereafter her statement was recorded which is Ex.PW11/A. (14) In her crossexamination by Ld. Defence Counsel, the witness has deposed that her son Shyam used to often sleep in the house. According to the witness, she does not know where her son Shyam and Bantoo used to beg. Witness has further deposed that her house is situated in a thickly populated residential area and the distance between her house and public toilet is about 10 to 15 paces. Witness has admitted that there was darkness near the toilet and was not being used by the public. Witness has further deposed that it was about 10.00 PM when her son Shyam had gone along with the accused Bantoo. According to the witness, her nephew Ravi used to reside in her house. Witness has further deposed that 15 to 20 public persons had gathered near the toilet and states that the police came to the spot immediately after the call and her statement was recorded in the police station on the same night. Witness has further deposed that statement of Ravi and Bhagwan Dass were also recorded in the police station in her presence. Witness has denied the suggestion that she had not seen accused Bantoo with her deceased son Shyam on the night of 18/19.03.2011. Witness has further denied the suggestion that she did not see the knife in the hand of Bantoo or that she did not hear any voice of accused as "maine shyam ko chakoo St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 11 maar diya, saale ne mujhe smack nahin di." Witness has denied the suggestion that she was deposing falsely being mother of the deceased. (15) PW15 Bhagwan Dass has deposed that the accused Bantoo, who had stabbed his nephew Shyam Singh on the previous night, was apprehended by his son Ravi and produced him before the police on 19.03.2011 and was arrested. According to him, the arrest memo of the accused Bantoo is Ex.PW15/A and his personal search was conducted vide Ex.PW15/B. In his crossexamination by Ld. Defence Counsel, witness has deposed that his thumb impression was obtained in the police station in the morning and his statement was also recorded at the police station.
(16) PW16 Ravi has deposed that he is working as a labour on daily wages whenever he gets work. According to him, on 19.03.2011 at about 12.00 midnight, he was lying on his cot on the roof of his house, then he heard cries of his Bua namely Smt. Bachno Devi who told him that her Shyam has been murdered by Bantoo. Witness has further deposed that he went in search of accused Bantoo and found him in public toilet complex of IBlock consuming smack. According to the witness, blood stains were found present on the wearing clothes of the accused and he apprehended the accused Bantoo who told him that he was asking for smack from deceased Shyam who refused to give and out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam. According to the witness Ravi, the accused further told him that he had St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 12 thrown the said knife in the corner of public toilet at the deep of garbage and also asked him to first check and see the condition of Shyam that he should not die. Witness has further deposed that he took the accused Bantoo near the toilet of JBlock where he came to know that Shyam had already died and by that time many public persons from neighbourhood gathered there. Witness has further deposed that one Sonu resident of their gali, called the police at 100 number at the instance of his Bua and after some time police reached at the spot and he handed over the accused to one Ct. Mann. Witness has further deposed that the PCR Van and ambulance also reached the spot and police inspected the spot and took the photograph of scene of the crime, thereafter the dead body of deceased Shyam was shifted to BJRM Hospital. Witness has further deposed that the accused Bantoo was arrested vide memo Ex.PW15/A and the personal search of the accused was conducted vide Ex.PW15/B. According to him, the accused made his disclosure statement vide Ex.PW16/A and also pointed out the place of incident to the police. Witness has further deposed that police also took into possession the blood stained clothes of the accused vide seizure memo Ex.PW16/B. Further, the knife which was got recovered by the accused, was also taken into possession by the police and the sketch of the same was prepared by the Investigating officer which is Ex.PW16/C. According to him, the said knife was kept in a cloth pullanda and was sealed and was seized vide memo Ex.PW16/D. Witness has deposed that on the same day, he St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 13 identified the dead body of his cousin Shyam vide Ex.PW10/F and after postmortem, the dead body was received by him and his other cousin brother namely Ajay Singh vide receipt Ex.PW9/B. The witness has correctly identified the case property i.e. knife Ex.P1 as the same as recovered by accused Bantoo.
(17) In his crossexamination by Ld. Defence Counsel, the witness has deposed that his cousin brother Shyam (deceased) used to beg in the area and used to live in the company of Bantoo (accused). According to the witness, his house is situated in a thickly populated area and his Bua Smt. Bachno Devi resides in his house at first floor. Witness has further deposed that he had not seen the incident and he went alone in the search of accused Bantoo near the public toilet complex. He has explained that the distance between his house and public toilet is just across the gali from the house. He has deposed that the accused Bantoo was found in the J block toilet which is slightly ahead of this toilet. He has further deposed that the police officials reached the spot at about 12:30 AM (midnight) and his statement was recorded at the spot itself. According to him, the police had interrogated Bantoo at the spot itself and has voluntarily explained that the accused Bantoo had disclosed his involvement and admitted of killing of his brother at the spot itself. Witness has further deposed that statement of Bantoo was recorded by the police while standing near the vehicle and has further explained that a part of his (witness) statement was recorded at the spot but the remaining statement St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 14 was recorded in the police station and he had also signed many documents whose number he cannot tell. According to him, the police remained at the spot till 2:00 AM. He has deposed that the knife was got recovered by the accused from the garbage lying near the spot and the proceedings regarding seizure of knife were carried out at the spot itself. He has further deposed that the knife was lifted by the Investigating Officer with the help of cloth and after that it was kept in a polythene bag. Witness has denied the suggestion that no disclosure statement was made by the accused or that nothing was recovered at the instance of the accused. Witness has admitted that such kinds of knives as Ex.P1 are easily available in the market. He has denied the suggestion that he has deposed falsely being cousin brother of the accused. According to the witness, his Bua did not tell anything to him regarding Bantoo and Shyam. Witness has denied the suggestion that he signed all the memos while sitting in the police station.
Medical witnesses:
(18) PW10 Dr. Bhim Singh has deposed that on 19.03.2011 he was working as Junior Specialist, BJRM hospital and on that day he conducted the postmortem on the dead body of Shyam Singh, S/o Vijay Singh, aged about 45 years, male, on the request of Insp. Jawahar Singh, with alleged history of declared brought dead on 19.03.2011 at 3:05 AM with history of stab injuries vide PM report Ex.PW10/A. According to St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 15 him, he examined the clothes of the deceased and he found three cuts in the shirt and baniyan (inner TShirt) measuring 5 cms and 1 cms respectively corresponding to injury No. 1, 2 and 3. Witness has further deposed that the cause of death was due to shock as a result of excessive bleeding via injury No.1. According to the witness, all the injuries were ante mortem, fresh in duration and caused by sharp single aged weapon. The witness has deposed that the injury No. 1 was sufficient to cause death in ordinary course of nature and time since death was about 12 hours. Witness has further deposed that Insp.
Jawahar Singh prepared the request for conducting the postmortem vide Ex.PW10/B and signed the brief facts vide Ex.PW10/C which death report is Ex.PW10/D. According to him, the MLC of deceased Shyam prepared by Dr. Deepak Chug is Ex.PW10/E bearing his signatures at point A and he had also signed the statement of Ajay Singh regarding identification of dead body at point B which is Ex.PW9/A. Witness has further deposed that he had also signed the statement of Ravi regarding identification of dead body which is Ex.PW10/F bearing his signatures at point A and he had also signed the statement of Susheel which is Ex.PW8/A. (19) The witness has further deposed that on 05.05.2011 he received the request for opinion regarding weapon of offence from Insp. Jawahar Singh along with weapon of offence duly sealed with the seal of St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 16 JSN in this case along with PM report of deceased Shyam Singh. According to him, he opened the parcel and found one single edged knife having wooden handle measuring total length of 24 cms. Witness has further deposed that the length of blade was 14 cms and the width of the blade was 3cms; length of handle was 10 cms as mentioned in figure 1. According to him, he examined the said weapon of offence and he had given his detailed report which Ex.PW10/G. Witness has further deposed that he prepared the sketch of the knife in the said report Ex.PW10/G. According to him, the injury No. 1, 2 and 3 mentioned in the postmortem report Ex.PW10/A could be caused by above mentioned knife and the cut marks mentioned in the clothes are corresponding with the injury No. 1, 2 and 3. Witness has further deposed that he sealed the weapon of offence and the clothes of the deceased with the sample seal of the hospital i.e. FMT, BJRM hospital. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(20) PW12 Dr. Deepak Chugh has deposed that on 19.03.2011 he was working as CMO at BJRM Hospital, Delhi. and on that day Dr. Vinod Kumar was working as JR (casualty) under his supervision. According to him, Dr. Vinod Kumar examined the body of Shyam S/o Late Sh. Vijay, aged about 35 years, Male brought by police and his relative which patient was brought dead. Witness has further deposed that Dr. Vinod Kumar examined the body vide MLC Ex.PW10/E St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 17 bearing signatures of Dr. Vinod Kumar at point B and bearing his name at point C. According to him, he is well conversant with the handwriting and signatures of Dr. Vinod Kumar as he had worked under his supervision and he has seen him while writing and signing in the course of his official duties. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. Forensic witness:
(21) PW 23 Dr. Rajendra Kumar, has deposed that he is the head of biological division of the FSL, Rohini, Delhi and Dr. Dhruv Sharma was not available for testimony and he could identify his handwriting and signatures being his Junior Officer being worked under his supervision.
Witness has further deposed that Dr. Dhruv Sharma after examining the exhibits gave his biological report Ex.PW23/A (admissible in evidence under Section 293 Cr.P.C.) which bears the signatures of Dr. Dhruv Sharma at point A and correct one. According to him the blood was detected on exhibits 1 (cotton wool swab), 2 (blood stained earth), 4 (pair of chappal), 5 (match box with sticks), 6 (polythene sheets), 7 (knife), 8a (jeans pant of accused), 8b (shirt worn by the accused), 9a (pants of the deceased), 9b (shirt of the deceased), 9c (Tshirt of the deceased) and 10 (blood stained gauze). Witness has further deposed that Dr. Dhruv Sharma also prepared the serological report which is Ex.PW23/B (admissible in evidence under Section 293 Cr.P.C.). According to him St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 18 Human blood was found on exhibits 1 (cotton wool swab), 2 (blood stained earth), 4 (pair of chappal), 5 (match box with sticks), 6 (polythene sheets), 7 (knife), 8a (jeans pant of accused), 8b (shirt worn by the accused), 9a (pants of the deceased), 9b (shirt of the deceased), 9c (Tshirt of the deceased) and 10 (blood stained gauze). The witness has proved that "A" blood group was found on exhibits 1 (cotton wool swab), 4 (pair of chappal), 5 (match box with sticks), 6 (polythene sheets), 9a (pants of the deceased), 9c (Tshirt of the deceased) and 10 (blood stained gauze). Witness has further deposed that the above said biological and serological report have been forwarded by him vide Ex.PW23/C which bears his signatures at point A. He has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard and his testimony has gone uncontroverted.
Police/ official witnesses:
(22) PW1 Ct. Dalbir Singh is a formal witness being the photographer of the Crime Team and has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW1/1. According to him, on 19.3.2011 on the instructions of the IO, he reached the spot i.e. MCD Toilet, First Floor, J Block, Jahangirpuri, along with Crime Team and took the photographs of the spot which are Ex.PW1/A1 to Ex.PW1/A11 the negative of which are collectively Ex.PW1/B. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 19 (23) In his cross examination by Ld. Defence Counsel, the witness has deposed that he had reached the spot at about 1:30 AM on the intervening night of 1819.03.2011. Witness has denied the suggestion that he did not go to the spot or take any photographs.
(24) PW2 SI Manohar Lal is a formal witness being the official Draftsman and has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW2/1. According to the witness, on 19.3.2011 on the instructions of the IO, he reached the spot and prepared the site plan which is Ex.PW2/A. (25) In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that he did not visit the spot or that the site plan was prepared by him while sitting in the police station at the instance of the Investigating officer.
(26) PW3 ASI Devender Singh is a formal witness being the Incharge of PCR and has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW3/1. According to the witness, on 18/19.3.2011, he was posted as PCR Van C34 from 8 PM to 8 AM along with other staff and was present near the Metro Station, Jahangirpuri and at about 12:26 AM he received a call regarding murder at MCD Toilet, JBlock, 10001200 wali Gali and thereafter he along with the staff reached the spot and after sometime SI Sandeep also reached the spot. The witness has proved the document i.e. copy of log book of C34 which is Ex.PW3/A. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 20 (27) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he reached at the spot within four to five minutes of receiving of the call and SI Sandeep Kumar and local police reached the spot after 1520 minutes of his reaching. According to him his statement was recorded at the spot and he had left the spot at about 1 PM.
(28) PW4 Ct. Vinod Pandey is a formal witness being on duty at Police Control Room and has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW4/1.
According to the witness, on 18/19.3.2011, he was on duty at Police Control Room, 3rd Floor PHQ from 8 PM to 8 AM at Channel NO. 117. He has deposed that he received a call from phone number 9289909057 regarding murder at MCD Toilet, J Block Jahangirpuri, 1000 - 1200 wali line at 0.23.35 hours on which he lodged the call at CR No. 111170010 and passed it on to North West District. He has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. (29) PW5 SI Manoj Kumar is a formal witness who has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW5/1. According to the witness, on 5.5.2011 on the directions of the SHO, he obtained the sealed parcel containing the weapon of offence from the MHC (M)/CP and took the same to the BJRM Hospital where the SHO obtained the opinion and thereafter he (witness) took the sealed pullanda back and deposited the same with the MHC (M). He has deposed that till the pullanda remained in his possession, it was St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 21 not tampered.
(30) In his crossexamination by Ld. Defence Counsel, the witness has deposed that on 05.05.2011 he went to BJRM hospital but he does not remember the time. According to him he had not signed any memo during the investigations. He has denied the suggestion that he had not joined any investigations.
(31) PW6 Ct. Sudesh is a formal witness and has been examined by way of affidavit in terms of provisions of Section 296 Cr.PC which affidavit is Ex.PW6/1. According to the witness, on 19.3.2011 the duty officer handed over to him the copies of the FIR for delivery to the Joint Commissioner of Police/NR, DCP/NWD, Ld. MM and ACP Shalimar Bagh, which he delivered at the residences of the above officers. (32) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he did not sign any DD when he left the police station. Witness has denied the suggestion that he did not deliver the copies of the FIR to the senior officers/ Ld. MM or that he was deposing falsely. (33) PW13 L/Ct. Usha has deposed by way of affidavit as she is a formal witness being the recording officer at Central Police Control Room which affidavit is Ex.PW13/1. Witness has also proved the document i.e. PCR Form which is Ex.PW13/A bearing her signatures at point A. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 22 (34) PW14 HC Raghunath has deposed that on 19.3.2011, the Investigating Officer Inspector Jawahar Singh had deposited three sealed parcels containing blood / earth control duly sealed with seal of JSN, one sealed seal parcel containing the chappal of the deceased with the same seal, one sealed parcel containing clothes of accused Bantoo, two sealed parcels containing match box and polythene, duly sealed with the same seal, one parcel containing knife duly sealed with the seal of JSN, two parcels containing exhibits of the deceased Shyam Singh and his clothes, one envelope containing blood sample of the deceased and one sample seal duly sealed with the seal of BJRM hospital and the articles recovered from personal search of accused Bantoo. According to him he had received the aforesaid parcels / articles vide Sl. No. 311/11 of Register No. 19.
(35) The witness has further deposed that on 5.5.2011, he sent the parcel containing knife to BJRM hospital for taking opinion thereof through PSI Manoj Kumar vide DD No. 20A and on the same day, he received the said parcel containing knife duly sealed with the seal of FMT, BJRM Hospital through PSI Manoj Kumar vide DD No. 22 A. Witness has further deposed that on 25.5.2011, he sent all the exhibits and sample seal to FSL Rohini through constable Sanjay Kumar vide RC No. 42/21/11. According to him, the copy of the aforesaid entries is Ex.PW14/A and the copy of RC is Ex.PW14/B. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 23 (36) In his crossexamination by Ld. Defence Counsel, the witness has denied the suggestion that he did not receive the aforesaid exhibits and parcels from Investigating Officer or that the aforesaid entries were manipulated later on to connect the accused with the alleged offence or that he was deposing falsely at the instance of Investigating officer. (37) PW17 SI Devender Singh has deposed that on 19.03.2011, he was posted as Incharge, Mobile Crime Team, Northwest District and on that day on receipt of information from Control Room he along with his staff reached at J & K Block, near MCD Toilet, First floor, Jahangir Puri where SI Sandeep Kumar, SHO Inspector Jawahar Singh along with staff were found present. According to him, he inspected the scene of crime and the photographs were taken by the photographer Ct. Dalbeer and no chance print could be found. Witness has further deposed that he prepared his detailed inspection report vide Ex.PW17/A and handed over the same to the Investigating officer. According to him the inspection proceedings started by him at 1.30AM (midnight) and ended by 2.10AM. (38) In his crossexamination by Ld. Defence Counsel, the witness has deposed that the information was received at 1.00AM (midnight) on 19.03.2011 and they reached at the spot at about 1.25AM. According to him a large number of public persons were standing outside the toilet but he does not remember if the Investigating Officer recorded their statements or not. Witness has further deposed that the dead body was found lying in the corner of the toilet (which was not in function) on the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 24 first floor.
(39) PW18 Ct. Sanjay has deposed that on 25.05.2011 he was posted at Police Station Mahendra Park and on that day on the instruction of the Investigating Officer, he took 10 sealed pulandas, out of which seven pulandas were sealed with the seal of JSN and three were sealed with the seal of BJRM Hospital, Delhi, and one sample seal from the MHC (M) vide RC No. 42/21/11 the same was deposited with the FSL Rohini and after depositing the same, he handed over the copy of RC and acknowledgment receipt given to MHC (M) and the seal pullandas were not tampered till it remained in his custody. This witness has not been cross examined on behalf of the accused and his testimony has gone uncontroverted.
(40) PW19 Ct. Narender Maan has deposed that on intervening night of 18/19.03.2011, he was posted in the Beat of IJ Block, Jahangir Puri of Police Station Mahendra Park and was on patrolling duty in the said beat area. According to him, during patrolling he reached the MCD toilet of JBlock Jahangir Puri, Delhi, at about 12.30AM (midnight) where a large number of public persons had gathered and on inquiry he came to know that one person by the name of Shyam had been murdered. According to him, in the meantime one Ravi had produced the accused Bantoo before him. The witness has correctly identified the accused Bantoo in the court and has further deposed that Ravi had told him that accused Bantoo had committed murder of Shyam and Ravi also informed St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 25 him that they have already called the police. According to him, after some time the PCR Van reached and SI Sandeep with staff also reached at the spot and SHO also reached at the spot and CATS Ambulance and Crime Team also reached there. Witness has further deposed that he handed over the accused Bantoo to SI Sandeep and thereafter the dead body was taken to the BJRM Hospital by SI Sandeep and himself where the doctor had declared him brought dead. According to him, thereafter the dead body was shifted to the mortuary and he was left there by SI Sandeep to guard the dead body. The witness has further deposed that during the day time, Inspector Jawahar Singh, came to the mortuary and got the dead body identified by Ajay Singh, Sushil and Ravi. According to him, thereafter the postmortem of the dead body was got conducted and the dead body was handed over to the relatives vide receipt Ex.PW9/B. The witness has further deposed that after the postmortem, the doctor handed over to him one sealed pullanda containing the clothes of the deceased, one sealed envelope containing blood sample of the deceased and one sample seal of FMT BJRM Hospital, Delhi, and he produced the said articles before the Investigating Officer who took the same into possession vide Ex.PW19/A. According to the witness, till the dead body remained in his custody, it was not tempered with.
(41) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he left for night patrolling at about 12.00 midnight on motorcycle. According to him, the PCR Van reached the spot at about St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 26 12.35 AM (midnight) and after 45 minutes SI Sandeep with Ct. Subhash also reached there and also the SHO. Witness has further deposed that the dead body was removed from the spot at about 3.00 AM on 19.03.2011 and his statement was recorded in the police station. Witness has denied the suggestion that accused Bantoo was not produced before him by Ravi.
(42) PW20 ASI Vishram Lal has deposed that on the intervening night of 18/19.03.2011 he was posted as Duty Officer at Police Station Mahendra Park from 12.00 (midnight) to 8.00AM and at about 12.30AM wireless message was received regarding murder at J Block between 1000 and 1200 wali line, near public toilets. According to him, this information was reduced into writing by him vide DD No.4A, copy of which is Ex.PW20/A, and inquiry of the DD was entrusted to SI Sandeep Kumar. Witness has further deposed that at about 1.50 AM (midnight) of the same night, he received a rukka sent by SI Sandeep Kumar through Ct. Subhash on the basis of which he got recorded FIR under Section 302 IPC. Witness has also brought the original FIR and copy of which is Ex.PW20/B. According to him, he made his endorsement on rukka which is Ex.PW20/C and after registration of FIR, the copy of FIR and original rukka was handed over to Ct. Subhash for handing over the same to SI Sandeep. Witness has further deposed that at about 2.40 AM (midnight), he recorded DD No.7A regarding the handing over of the said copy of FIR and original rukka to Ct. Subhash copy of DD No.7A is Ex.PW20/D. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 27 This witness has not been cross examined on behalf of the accused and the testimony of this witness has gone uncontroverted. (43) PW21 Ct. Subhash has deposed that on 18.03.2011 he was on emergency duty from 8.00 PM to 8.00 AM (next day) i.e. 19.03.2011 with SI Sandeep Kumar and had gone to attend a call in the area and when they were coming back, it was already 12.00 midnight and the date had changed to 19.03.2011. According to him, at about 12.30 AM, one Ct. Azhar Anwar Zaidi had handed over DD No.4A to SI Sandeep and on receipt of the said DD, he along with SI Sandeep went to MCD toilets at J Block Jahangir Puri where Ct. Narender Maan was present with the custody of accused Bantoo. Witness has further deposed that Smt. Bachno Devi and Ravi who were present at the spot, narrated the incident to SI Sandeep Kumar and statement of Smt. Bachno Devi was recorded. According to him, in the meanwhile the PCR Van also reached there and the person who was found dead at first floor of MCD toilet was identified by Smt. Bachno Devi and Ravi as Shyam Singh. Witness has further deposed that the Crime team was called and in the meanwhile the SHO also reached at the spot. He has deposed that the Investigating Officer prepared the rukka and handed it over to him (witness) for registration of the FIR under Section 302 IPC at about 1:35 AM. The witness has further deposed that he took the rukka and went to the Police Station and got the case registered and came back with the copy of the FIR and original rukka to the spot from Police Station at 2:45 AM and handed St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 28 over the copy of FIR and original rukka to Investigating Officer. According to him, the dead body was removed to BJRM Hospital through Ct. Narender Maan. Witness has further deposed that the Investigating Officer lifted the earth control, blood stained earth control, one blood stained match box and polythene and kept the same in a pullanda and sealed the same with the seal of JSN and seized vide memo Ex.PW21/A. According to him, one pair of chappal was found lying at the spot having blood stains on it which was also taken into possession vide memo Ex.PW21/B. Witness has further deposed that the accused Bantoo was interrogated by the Investigating Officer and thereafter was arrested vide memo Ex.PW15/A and personally searched vide memo Ex.PW15/B. According to him, the accused thereafter made a disclosure statement which is Ex.PW16/A and pursuant to the said disclosure, pointed out the place of incident. Witness has further deposed that thereafter the accused led them (police party) to the place where he had kept the knife after the incident i.e. at MCD Toilet Complex, J Block, Jahangir Puri, and there he (accused) took out a knife from a corner under the heap of garbage. According to him, the sketch of the knife was prepared which is Ex.PW16/C and total length of the knife was 24 cm, length of blade was 14 cm, length of handle was 10 cm and width of blade was 3 cm. Witness has further deposed that the knife was thereafter kept in a pullanda and sealed with the seal of JSN and seized by the Investigating Officer vide memo Ex.PW16/D. According to him. The Seal after use St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 29 was handed over to SI Sandeep Kumar by the Investigating officer. Witness has further deposed that he took the accused Bantoo to BJRM Hospital for his medical examination as per the instructions of the SHO/ Investigating officer and his statement was recorded by the Investigating Officer.
(44) The witness has correctly identified the case property i.e. knife Ex.P1 as the same as recovered by accused Bantoo; one pair of chappal Ex.P2 (collectively) of black colour as the same as was found lying at the spot; one match box with sticks Ex.P3 as the same as was found lying at the spot; one polythene Ex.P4 as the same as was found lying at the spot.
(45) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that he reached the spot at about 12:35 (midnight) and 1520 public persons were present there. According to him, the statement of the other public persons was not recorded by SI Sandeep Kumar (i.e. initial Investigating officer). Witness has further deposed that the statement of the witnesses were recorded while sitting near the toilet and the police station is situated at about one km. from the spot. He has also stated that it took him about 2530 minutes in lifting the exhibits from the spot. Witness has further deposed that the place of incident was on the first floor of the said toilet and the place of recovery of knife was a corner on the ground floor of the toilet. According to him, the Investigating Officer might have prepared the site plan of the place of St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 30 recovery of knife. Witness has admitted that the knife Ex.P1 which is used for cutting vegetables and is easily available in the market. According to him he remained at the spot till 7:00 AM on 19.3.2011. Witness has denied the suggestion that he never joined the investigations or that he did not go to Police Station with the rukka or that the accused was not produced by Ravi before Ct. Narender Maan. Witness has further denied the suggestion that all the proceedings were conducted in the police station or that nothing was recovered at the instance of the accused. Witness has also denied the suggestion that he has deposed falsely at the instance of the Investigating Officer.
(46) PW22 SI Sandeep Kumar has deposed that on 18.03.2011, he was on emergency duty from 8.00 PM to 8.00 AM (next day i.e. 19.03.2011) along with Ct. Subhash and was attending one call in the area and when they were returning after attending the said call, it was already 12.00 midnight and the date was changed as 19.03.2011. According to him, at about 12.30 AM, one Ct. Azhar Anwar Zaidi had handed over DD No.4A to him regarding murder of a man at MCD toilet between gali of Houses No. 1000 to 1200, JBlock, Jahangir Puri, and on receipt of the said DD he along with Ct. Subhash went to MCD toilets at JBlock Jahangir Puri where Ct. Narender Maan was present with the custody of accused Bantoo. Witness has further deposed that Smt. Bachno Devi and Ravi, who were present at spot, narrated the incident to him. According to him, the PCR van already present there and the PCR officials informed St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 31 him that the CATS Ambulance had come to the spot and its officials had declared the injured as dead, after which he recorded the statement of Smt. Bachno Devi. Witness has further deposed that the person who was found dead at first floor of MCD toilet was identified by Smt. Bachno Devi and Ravi as Shyam Singh who was lying a pool of blood. According to him, the Crime Team was called and in the meanwhile SHO also reached at the spot. Witness has further deposed that he prepared the rukka and handed it over to Ct. Subhash for registration of the FIR under Section 302 IPC at about 1:35 AM and Ct. Subhash went to the Police Station and got the case registered and came back with the copy of the FIR and original rukka to the spot from Police Station at 2:45 AM and handed over the copy of FIR and original rukka to SHO Inspector Jawahar Singh. Witness has further deposed that the dead body was removed to BJRM Hospital through Ct. Narender Maan and himself where on the MLC Shyam Singh was declared brought dead. According to him, the dead boy was got preserved by him in the Mortuary and Ct. Narender was left to guard the dead body. Witness has further deposed that the Investigating Officer lifted the earth control, blood stained earth control, one blood stained match box and polythene which were kept in pullandas and sealed with the seal of JSN and seized vide memo Ex.PW21/A and one pair of chappal found lying at the spot having blood stains on it which was also taken into possession vide memo Ex.PW21/B. According to him, the accused Bantoo was interrogated by the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 32 Investigating officer and thereafter was arrested vide memo Ex.PW15/A and personally searched vide memo Ex.PW15/B, thereafter the accused made a disclosure statement which is Ex.PW16/A. He has correctly identified the accused in the court. Witness has further deposed that pursuant to the said disclosure, the accused pointed out the place of the incident vide pointing out memo Ex.PW22/A and thereafter the accused led them to the place where he had kept the knife after the incident i.e. at MCD Toilet Complex, J Block, Jahangir Puri where he took out a knife from a corner under the heap of garbage. Witness has further deposed that the sketch of the knife was prepared which is Ex.PW16/C. According to him the total length of the knife was 24 cm, length of blade was 14 cm, length of handle was 10 cm and width of blade was 3 cm and the knife was thereafter kept in a pullanda and sealed with the seal of JSN and seized by the Investigating Officer vide the pointing out cum seizure memo Ex.PW16/D. Witness has further deposed that the blood stained clothes of the accused were taken into possession and sealed with the seal of JSN and also seized vide memo Ex.PW16/B and seal after use was handed over to him by the Investigating officer. Witness has further deposed that Ct. Subhash took the accused Bantoo to BJRM Hospital for his medical examination as per the instruction of the SHO / Investigating Officer and his statement was recorded by the Investigating officer. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 33 (47) Witness has correctly identified the case property i.e. knife Ex.P1 as the same as recovered by accused Bantoo; one pair of chappal of black colour Ex.P2 (collectively) as the same as was found lying at the spot; one match box with sticks Ex.P3 (collectively) as the same as was found lying at the spot; one polythene Ex.P4 as the same as was found lying at the spot.
(48) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he reached the spot at about 12:40 (midnight) and 1520 public persons were present there. According to him, the statement of Bachno Devi was recorded by him outside MCD Sauchalya under the street light but he does not remember if the Investigating Officer recorded the statement of public persons who were present there. Witness has further deposed that Rukka was sent by him in the presence of SHO at about 1:35 AM through Ct. Subhash who had gone to the police station on his motorcycle. According to him, the Crime Team reached at the spot at about 1:00 to 1:15 AM and remained there for about half an hour. Witness has further deposed that statements of Ravi, Bhagwan Singh and supplementary statement of Bachno Devi were recorded at the spot by the Investigating Officer. According to him, the dead body of Shyam was lying in the toilet at first floor and knife was recovered from ground floor near the entry gate. Witness has further deposed that the Investigating Officer prepared the site plan of the spot and the knife was shown in it at point mark B and proceedings regarding seizure of knife and other St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 34 documents were prepared outside the toilet while sitting on the stools and their motorcycles under the street light. According to him, he took the dead body to BJRM Hospital and reached there at about 3:05 AM and remained there for about 1015 minutes. Witness has further deposed that Investigating Officer took about 2 to 2 ½ hours for lifting the exhibits from the spot and he had returned the seal to the Investigating Officer in the police station and no handing over memo or taking over memo was prepared for the same. Witness has further deposed that his statement was recorded in the police station and in his presence statement of Ct. Subhash were recorded. According to him they finally left the spot at about 7AM and has denied the suggestion that no disclosure statement was made by the accused. Witness has denied the suggestion that nothing was recovered at the instance of the accused or that no pointing out memo was prepared at the instance of accused. Witness has denied the suggestion that entire proceedings were conducted while sitting in the police station and the accused has been falsely implicated in the present case only to work out the present case.
(49) PW24 Inspector Jawahar Singh, has deposed that on 18.03.2011 he was posted as SHO of Police Station Mahendra Park and on the intervening night of 18/19.03.2011 he was on patrolling duty in the area of Police Station Mahendra Park and Police Station Shalimar Bagh and when he reached in the area of Police Station Shalimar Bagh at about 12.30AM he received information from the Duty Officer of Police Station St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 35 Mahendra Park that a murder took place in MCD Shauchalaya between 1000 and 1200 wali gali, J Block Jahangir Puri, Delhi. According to him he immediately reached there with his staff in the police gypsy and SI Sandeep, Ct. Subhash, Ct. Narender Maan were already present there and Ct. Narender Maan was caught hold of one person namely Bantoo. Witness has further deposed that he also found one dead body of a male person namely Shyam Singh there and he inspected the dead body and he found stab injuries on his body. According to him, SI Sandeep was recording the statement of Bachno Devi at that time and he came to know that Shyam S/o Bachno Devi was murdered by Bantoo who was caught by Ravi and produced before the police. Witness has further deposed that SI Sandeep prepared the rukka Ex.PW24/A in his presence and he put his signatures at point A in his presence and thereafter Ct. Subhash was sent to Police Station alongwith rukka for registration of the FIR. According to him he took over the investigations thereafter and called the crime team officials at the spot who inspected the site and handed over to him the crime team report and crime team photographer took the photographs of the spot. Witness has further deposed that meanwhile Ct. Subhash reached at the spot and handed over copy of FIR and original rukka to him. According to him, he lifted the blood with the help of cotton and kept the same in a plastic container and sealed the same with the seal of JSN and he also lifted blood stained earth from the spot and kept the same kept the same in a plastic container and sealed the same with the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 36 seal of JSN. Witness has further deposed that he also lifted earth control from the spot kept the same in a plastic container and sealed the same with the seal of JSN and he seized the same vide seizure memo Ex.PW24/B. According to the witness he also took possession of one blood stained match box and he wrapped the same in a white paper and thereafter prepared the cloth pullanda and sealed the same with the seal of JSN and thereafter took into possession of one blood stained polythene and the same was also sealed in a cloth pullanda with the seal of JSN. According to him these articles i.e. match box and polythene were found near the dead body of Shyam Singh and the same was seized by him vide seizure memo Ex.PW21/A. Witness has further deposed that one pair of blood stained plastic slippers were also found near the dead body and also prepared the cloth pullanda of the same and sealed the same with the seal of JSN and seized the same vide seizure memo Ex.PW21/B. According to him the dead body was sent to BJRM Hospital Mortuary through Ct. Narender Maan and SI Sandeep for preservation and after 20 minutes SI Sandeep returned back at the spot and Ct. Narender Maan remained there. Witness has further deposed that he interrogated accused Bantoo and he confessed about the murder of Shyam Singh and thereafter he arrested accused Bantoo vide arrest memo Ex.PW15/A after which he took the personal search of accused vide Ex.PW15/B. According to him, he recorded disclosure statement of the accused Bantoo in detail vide St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 37 Ex.PW16/A and also disclosed that he had committed the murder of Shyam by the knife and had concealed the weapon of offence in the garbage near the entry gate of the MCD Shauchalaya at J Block, Jahangir Puri. Witness has further deposed that he pointed out the place of incident at first floor MCD toilet complex, J Block Jahangir Puri, Delhi, vide Ex.PW22/A and thereafter at the instance of accused they reached at the garbage near the entry gate of MCD Shauchalaya and accused Bantoo took out the knife from the garbage and handed over the same to him which was an ordinary knife. According to him he prepared the sketch of the knife vide Ex.PW16/C and he took measurement of the knife. Witness has further deposed that the total length of knife was found 24 Cms, blade was of 14 Cms and maximum width of the blade of the knife was 3 Cms. According to him blood stains were also found on the blade of the knife and he kept the knife in a cloth pullanda and sealed the same with the seal of JSN and seized the same vide seizure memo Ex.PW16/D. Witness has further deposed that they found blood stains on the clothes of the accused Bantoo and hence his shirt and blue coloured jeans pant were taken from him and he kept both the shirt and pant in a cloth pullanda and sealed the same with the seal of JSN and seized the same vide Ex.PW16/B. According to him he prepared the site plan vide Ex.PW24/C at the instance of eyewitness Ravi and witness Ravi put his signature on the site plan at point B. Witness has further deposed that he recorded statement of witnesses and accused Bantoo was sent to BJRM St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 38 Hospital for medical examination through Ct. Subhash. According to him, he thereafter went to police station and deposited the seized articles in the Malkhana.
(50) Witness has further deposed that on 19.03.2011 at about 1.00PM he went to the BJRM Hospital Mortuary and prepared the inquest papers and filled the form Ex.PW10/D. According to him, he prepared the brief facts vide Ex.PW10/C and he recorded statement of witnesses Ajay Singh, Ravi and Sushil vide Ex.PW9/A, Ex.PW10/F and Ex.PW8/A respectively regarding identification of the dead body. Witness has further deposed that he made request for postmortem vide Ex.PW10B. According to him after postmortem the dead body was handed over to Ajay Singh the elder brother of the deceased vide Ex.PW9/B and after postmortem Ct. Narender Maan handed over one pullanda containing clothes of the deceased and one envelop containing blood sample of the deceased in sealed condition with the seal of FMT, BJRM HOSPITAL, DELHI with sample seal to him. According to him he seized the same vide seizure memo Ex.PW19/E and he returned back to the police station and deposited the seized articles in the malkhana and recorded statement of witnesses. Witness has further deposed that he collected PM report and on 05.05.2011 he obtained the opinion of the Autopsy Surgeon about the weapon of offence and he gave his opinion vide Ex.PW10/G to him. According to him, the exhibits of this case St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 39 were sent to FSL Rohini, Delhi on 25.05.2011 through Ct.Sanjah and during his investigation he collected photographs and scaled site plan was also got prepared though SI Manohar Lal. Witness has further deposed that he also collected PCR Forms Ex.PW13/A and Ex.PW24/D and he also collected wireless log and diary of PCR. According to him after completion of investigation he submitted charge sheet against accused Bantoo. Witness has further deposed that he collected FSL results Ex.PW23/A, Ex.PW23/B and forwarding letter Ex.PW23/C from the FSL. Witness has also correctly identified the accused Buntoo who was present in the court. According to him he can identify the seized articles. (51) Witness has also correctly identified the case property i.e. knife as the same as recovered at the instance of accused Bantoo which knife is Ex.P1. He has also correctly identified one pair of chappals of black colour as the same as found near the dead body at the spot, which are collectively Ex.P2; one match box with sticks as the same as found near the dead body at the spot, which is collectively Ex.P3; one polythene as the same as found near the dead body at the spot, which is Ex.P4; one plastic container with cotton wool swab having brown stains as the same as lifted by him as blood with the help of cotton from the spot, which is Ex.P5; one plastic container with blood stained earth as the same as lifted by him as blood stained earth, which is Ex.P6; one plastic container with earth material as the same as lifted by him as earth St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 40 control from the spot, which is Ex.P7 and one jeans pant and one shirt as the same as recovered wearing clothes of the accused Bantoo which pant is Ex.P7 and the shirt is Ex.P8.
(52) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot at about 1.10 AM on 19.03.2011 at night time and 78 public persons were present there. According to him SI Sandeep was conducting his written work in front of the MCD Shauchalaya on the road after sitting on a stool. Witness has further deposed that rukka was sent by SI Sandeep at about 1.35AM. According to him crime team officials were called at about 1.00AM and they reached at the spot at about 1.30AM and they remained there for about one hour. Witness has further deposed that Ct. Subhash reached at the spot with copy of FIR at about 2.453.00AM and he took about 30 minutes for lifting the exhibits from the spot. He has deposed that on the way to the spot he took the investigating kit from Police Station Mahendra Park. Witness has further deposed that all the documents were prepared by himself and he interrogated the accused Bantoo at the spot. He has deposed that the distance between the place of incident and the place from where knife was recovered is about 1520 meters and has voluntarily added that he has shown the place of recovery of knife in his site plan. Witness has further deposed that he prepared the documents in respect of the recovery of the knife at the place in front of the MCD shauchalaya where SI Sandeep had prepared the documents. According to him one T St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 41 Shirt and one lower was brought from the police station for the accused Bantoo at the time when we seized his pant and shirt. Witness has further deposed that he remained at the spot till 7.30AM and has deposed that he seized articles in the malkhana after the postmortem was conducted. According to him he handed over the seal of JSN to SI Sandeep after use and he returned the same to him on the next day evening and no memo was prepared by him about the handing over and receiving the seal. Witness has admitted that the knife like Ex.P1 are easily available in the market. Witness has denied the suggestion that he did not conduct the investigation fairly and has also denied the suggestion that no disclosure statement was made by accused Bantoo or that nothing was recovered at the instance of accused Bantoo. Witness has denied the suggestion that accused Bantoo has been falsely implicated in the present case. STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(53) After completion of prosecution evidence the statement of the accused Bantoo was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated by the family of the deceased and the police because they had suspicion on him as the deceased used to remain in his company sometimes and they used to consume smack together. According to the accused, he has been lifted by the police from the market at Jahangir Puri St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 42 at about 4:00 to 5:00 PM while he was begging at the Subzimandi to collect money for buying smack. He has also stated that the police had only tried to work out the case by shifting the allegations on him.
(54) The accused has not preferred to lead any evidence in his defence.
FINDINGS:
(55) I have heard the arguments advanced by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES/ EYE WITNESSES:
1. Sonu (PW7) He is a resident of the same area and has deposed on the
following aspects:
1. That he is a vegetable vendor and on 19.03.2011 at about 1212:30 AM (midnight) he was sleeping in his house along with his family members.
2. That he heard noise from the street on which he came out and some public person informed him that murder has taken place in the Sauchalya, 10001200 in between the street.
3. That he made a telephonic call at 100 number from his mobile No. 9289909057 which was attended by one St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 43 lady.
4. That the PCR came to the spot and he informed the PCR official that he had made a call to PCR and his statement was recorded by the police.
2. Susheel (PW8) He is the elder brother of the deceased who has proved that on 19.03.2011 he came to his house after attending his duty as a driver and at about 7:30 AM he was informed by his mother that his younger brother Shyam Singh had been killed by Bantoo who had been caught by the police, on which he went to BJRM hospital where he saw the body of his younger brother Shyam Singh and identified the same vide his statement Ex.PW8/A and after getting the postmortem conducted the dead body was handed over to them.
3. Ajay Singh He is also the elder brother of the deceased who has (PW9) deposed that on 19.03.2011 he was on duty and at about 6 AM he came to his house when he came to know from his mother that his younger brother Shyam Singh had been killed by one Bantoo who had been apprehended by the police on which he went to BJRM hospital directly from his house where he saw the dead body of his younger brother Shyam Singh and identified the same vide Ex.PW9/A and the postmortem on the dead body was conducted after which it was handed over to him vide receipt Ex.PW9/B.
4. Smt. Bachno She is the mother of the deceased and witness of last seen Devi (PW11) who has correctly identified Bantoo and has deposed on the following aspects:
1. That the deceased Shyam was her second son whose right hand had been afflicted with Polio and he was handicapped.
2. That Shyam was 10th class pass and had become addicted to smack for the last seven to eight years when he used to consume smack along with accused Bantoo.
3. That her son Shyam and the accused Bantoo used to indulge into begging for purchase of smack.
4. That on the night of 18/19.03.2011, Bantoo came to her house and took her son Shyam with him.St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 44
5. That she had told her son Shyam to take his dinner but he refused to take food and went away with Bantoo and thereafter she saw both of them entering in the public toilet situated at JBlock, which is visible from her house.
6. That she had also seen one small kitchen knife in the hand of Bantoo and she called out to Bantoo and asked him why he was having knife in his hand and asked him to throw the knife but both her son Shyam and Bantoo did not pay any heed to her and entered the MCD urinal and she saw them climbing the stairs of the toilet.
7. That she was not suspicious of Bantoo because her son and Bantoo normally used to sit in this public urinal and consume smack.
8. That after about one hour to one hour fifteen minutes, she could hear the shouts of the accused Bantoo who was shouting very loudly by saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di".
9. That at that time she was standing outside her house and saw Bantoo coming out of the toilet and running away.
10. That she immediately called out her nephew Ravi and asked him to find out what had happened while she herself went towards the toilet but did not enter the same because of the filth which was lying inside.
11. That in the meanwhile Ravi who had followed Bantoo, caught him from the Iblock public toilet and brought him back and handed over him to the police, thereafter her statement was recorded which is Ex.PW11/A.
5. Bhagwan Dass PW15 Bhagwan Dass is the uncle of the deceased who has (PW15) deposed that the accused Bantoo, who had stabbed his nephew Shyam Singh on the previous night, was apprehended by his son Ravi who produced him before the police on 19.03.2011. He has proved that the accused Bantoo was arrested vide memo Ex.PW15/A and his personal search was conducted vide Ex.PW15/B. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 45
6. Ravi (PW16) He is the cousin brother of the deceased and has deposed on the following lines:
1. That on 19.03.2011 at about 12.00 midnight, he was lying on his cot on the roof of his house, when he heard cries of his Bua namely Smt. Bachno Devi who told him that her Shyam has been murdered by Bantoo.
2. That he went in search of accused Bantoo and found him in public toilet complex of IBlock consuming smack.
3. That blood stains were found present on the wearing clothes of the accused.
4. That he apprehended the accused Bantoo who told him that he was asking for smack from deceased Shyam who refused to give and out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam.
5. That the accused further told him that he had thrown the said knife in the corner of public toilet at the deep of garbage and also asked him to first check and see the condition of Shyam that he should not die.
6. That he took the accused Bantoo near the toilet of J Block where he came to know that Shyam had already died and by that time many public persons from neighbourhood gathered there.
7. That one Sonu resident of their gali, called the police at 100 number at the instance of his Bua and after some time police reached at the spot and he handed over the accused to one Ct. Mann.
8. That the PCR Van and ambulance also reached the spot and police inspected the spot and took the photograph of scene of the crime, thereafter the dead body of deceased Shyam was shifted to BJRM Hospital.
9. That the accused Bantoo was arrested vide memo Ex.PW15/A and the personal search of the accused was conducted vide Ex.PW15/B.
10. That the accused made his disclosure statement vide Ex.PW16/A and also pointed out the place of incident to the police.
11. That police took into possession the blood stained clothes of the accused vide seizure memo Ex.PW16/B. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 46
12. That the knife which was got recovered by the accused, was also taken into possession by the police and the sketch of the same was prepared by the Investigating officer which is Ex.PW16/C.
13. That the said knife was kept in a cloth pullanda and was sealed and was seized vide memo Ex.PW16/D.
14. That on the same day, he identified the dead body of his cousin Shyam vide Ex.PW10/F and after postmortem, the dead body was received by him and his other cousin brother namely Ajay Singh vide receipt Ex.PW9/B. The witness has correctly identified the knife Ex.P1 which was got recovered by accused Bantoo.
MEDICAL EVIDENCE
7. Dr. Bhim Singh PW10 Dr. Bhim Singh has proved that on 19.03.2011 he (PW10) conducted the postmortem on the dead body of Shyam Singh, S/o Vijay Singh, aged about 45 years, male, on the request of Insp. Jawahar Singh, with alleged history of declared brought dead on 19.03.2011 at 3:05 AM with history of stab injuries vide postmortem report Ex.PW10/A. The perusal of the said postmortem report shows the following injuries:
1. Incised stab wound horizontally placed, left side of chest in the mid axillary line at the level of 4 th intercostal space, situated 7 cm below axilla, measuring 4 cm x 1 cm x cavity deep inner angle obtuse.
2. Incised wound 0.5 cm x 0.2 cm x 0.5 cm left side of abdomen 8 cm outer below to umbilicus.
3. Incised wound 0.8 cm x 0.2 cm x 0.5 cm over outer aspect of left iliac.
The witness has also proved that he examined the clothes of the deceased and he found three cuts in the shirt and baniyan (inner TShirt) measuring 5 cms and 1 cms respectively corresponding to injury No. 1, 2 and 3. Witness has further proved that the cause of death was due to shock as a result of excessive bleeding via injury No.1 and all the injuries were ante mortem, fresh in duration and St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 47 caused by sharp single aged weapon. He has also proved that the injury No. 1 was sufficient to cause death in ordinary course of nature and time since death was about 12 hours. According to him, Insp. Jawahar Singh prepared the request for conducting the postmortem vide Ex.PW10/B and signed the brief facts vide Ex.PW10/C which death report is Ex.PW10/D. He has proved having signed the MLC of deceased Shyam prepared by Dr. Deepak Chug which is Ex.PW10/E and also on the statement of Ajay Singh regarding identification of dead body which is Ex.PW9/A; statement of Ravi which is Ex.PW10/F and statement of Susheel which is Ex.PW8/A. He has proved on 05.05.2011 he received the request for opinion regarding weapon of offence from Insp. Jawahar Singh along with weapon of offence i.e. single edged knife having wooden handle measuring total length of 24 cms, length of blade 14 cms and the width of the blade 3cms; length of handle 10 cms. According to him, he examined the said weapon of offence and he had given his detailed report which Ex.PW10/G according to which the injury No. 1, 2 and 3 mentioned in the postmortem report Ex.PW10/A could be caused by above mentioned knife and the cut marks mentioned in the clothes are corresponding with the injury No. 1, 2 and 3.
8. Dr. Deepak This witness has proved the MLC of the deceased which is Chugh (PW12) Ex.PW10/E prepared by Dr. Vinod Kumar FORENSIC EVIDENCE:
9. Dr. Rajendra He is the Head of Biological Division of the FSL, Rohini, Kumar (PW23) Delhi and has proved the reports prepared by Dr. Dhruv FSL Sharma which are Ex.PW23/A and Ex.PW23/B and also proved the forwarding letter which is Ex.PW23/C. According to him Human blood was found on exhibits 1 (cotton wool swab), 2 (blood stained earth), 4 (pair of chappal), 5 (match box with sticks), 6 (polythene sheets), 7 (knife), 8a (jeans pant of accused), 8b (shirt worn by the accused), 9a (pants of the deceased), 9b (shirt of the deceased), 9c (Tshirt of the deceased) and 10 (blood St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 48 stained gauze). The witness has proved that "A" blood group was found on exhibits 1 (cotton wool swab), 4 (pair of chappal), 5 (match box with sticks), 6 (polythene sheets), 9a (pants of the deceased), 9c (Tshirt of the deceased) and 10 (blood stained gauze).
POLICE/ OFFICIAL WITNESSES (Proving investigations)
10. Ct. Dalbir He is the the photographer of the Crime Team who has Singh (PW1) proved that on 19.3.2011 on the instructions of the IO, he reached the spot i.e. MCD Toilet, First Floor, J Block, Jahangirpuri, along with Crime Team and took the photographs of the spot which are Ex.PW1/A1 to Ex.PW1/A11 the negative of which are collectively Ex.PW1/B.
11. SI Manohar Lal He is the official Draftsman who has proved that on (PW2) 19.3.2011 on the instructions of the IO, he reached the spot and prepared the site plan which is Ex.PW2/A.
12. ASI Devender He is the Incharge of PCR who has proved that on Singh (PW3) 18/19.3.2011, at about 12:26 AM he received a call regarding murder at MCD Toilet, JBlock, 10001200 wali Gali on which he along with the staff reached the spot and after sometime SI Sandeep also reached the spot. He has proved the copy of log book of C34 which is Ex.PW3/A.
13. Ct. Vinod This witness has proved that on 18/19.3.2011, he was on Pandey (PW4) duty at Police Control Room, 3rd Floor PHQ from 8 PM to 8 AM at Channel No. 117 and he received a call from phone number 9289909057 regarding murder at MCD Toilet, J Block Jahangirpuri, 1000 - 1200 wali line at 0.23.35 hours on which he lodged the call at CR No. 111170010 and passed it on to North West District.
14. SI Manoj He is a formal witness who has proved on 5.5.2011 on the Kumar (PW5) directions of the SHO, he obtained the sealed parcel containing the weapon of offence from the MHC (M)/CP and took the same to the BJRM Hospital where the SHO obtained the opinion and thereafter he (witness) took the sealed pullanda back and deposited the same with the MHC (M). He has proved that till the pullanda remained in his possession, it was not tampered.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 49
15. Ct. Sudesh He is also a formal witness who has proved that on (PW6) 19.3.2011 the Duty Officer handed over to him the copies of the FIR for delivery to the Joint Commissioner of Police/NR, DCP/NWD, Ld. MM and ACP Shalimar Bagh, which he delivered at the residences of the above officers.
16. L/ Ct. Usha She is also a formal witness being the recording officer at (PW7) Central Police Control Room who has proved the document i.e. PCR Form which is Ex.PW13/A.
17. HC Raghunath He is the MHCM who has proved the relevant entries in (PW14) Register No. 19 and Register No.21, which are Ex.PW14/A and Ex.PW14/B.
18. SI Devender He is the Incharge, Mobile Crime Team, Northwest District Singh (PW17) who has deposed that on 19.03.2011, on receipt of information from Control Room he along with his staff reached at J & K Block, near MCD Toilet, First floor, Jahangir Puri where SI Sandeep Kumar, SHO Inspector Jawahar Singh along with staff were found present. He has also proved that he inspected the scene of crime and the photographs were taken by the photographer Ct. Dalbeer but no chance print could be found. He has proved having prepared his detailed inspection report vide Ex.PW17/A and handed over the same to the Investigating officer.
19. Ct. Sanjay He is a formal witness who has proved that on 25.05.2011 (PW18) on the instruction of the Investigating Officer, he took ten sealed pulandas, out of which seven pulandas were sealed with the seal of JSN and three were sealed with the seal of BJRM Hospital, Delhi, and one sample seal from the MHC (M) vide RC No. 42/21/11 which he deposited in the FSL Rohini and after depositing the same, he handed over the copy of RC and acknowledgment receipt given to MHC (M). He has also proved that the sealed pullandas were not tampered till it remained in his custody.
20. Ct. Narender He is the witness who had first reached the spot. He has Maan (PW19) deposed on the following aspects:
1. That on intervening night of 18/19.03.2011, he was posted in the Beat of IJ Block, Jahangir Puri of Police Station Mahendra Park and was on patrolling duty in St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 50 the said beat area.
2. That during patrolling he reached the MCD toilet of J Block Jahangir Puri, Delhi, at about 12.30AM (midnight) where a large number of public persons had gathered and on inquiry he came to know that one person by the name of Shyam had been murdered.
3. That in the meantime one Ravi had produced the accused Bantoo before him (whom the witness has correctly identified).
4. That Ravi told him that accused Bantoo had committed murder of Shyam and Ravi also informed him that they have already called the police.
5. That after some time the PCR Van reached and SI Sandeep with staff also reached at the spot and SHO also reached at the spot and CATS Ambulance and Crime Team also reached there.
6. That he handed over the accused Bantoo to SI Sandeep and thereafter the dead body was taken to the BJRM Hospital by SI Sandeep and himself where the doctor had declared him brought dead.
7. That thereafter the dead body was shifted to the mortuary and he was left there by SI Sandeep to guard the dead body.
8. That during the day time, Inspector Jawahar Singh, came to the mortuary and got the dead body identified by Ajay Singh, Sushil and Ravi.
9. That thereafter the postmortem of the dead body was got conducted and the dead body was handed over to the relatives vide receipt Ex.PW9/B.
10. That after the postmortem, the doctor handed over to him one sealed pullanda containing the clothes of the deceased, one sealed envelope containing blood sample of the deceased and one sample seal of FMT BJRM Hospital, Delhi, and he produced the said articles before the Investigating Officer who took the same into possession vide Ex.PW19/A.
21. ASI Vishram He is the Duty Officer who has proved that on the Lal (PW20) intervening night of 18/19.03.2011 at about 12.30AM St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 51 wireless message was received regarding murder at J Block between 1000 and 1200 wali line, near public toilets which information he reduced into writing by him vide DD No.4A, copy of which is Ex.PW20/A which DD was entrusted to SI Sandeep Kumar. According to him, at about 1.50 AM (midnight) of the same night, he received a rukka sent by SI Sandeep Kumar through Ct. Subhash on the basis of which he got recorded FIR under Section 302 IPC, copy of which is Ex.PW20/B. He has proved having made his endorsement on rukka which is Ex.PW20/C and after registration of FIR, the copy of FIR and original rukka was handed over to Ct. Subhash for handing over the same to SI Sandeep. Witness has further deposed that at about 2.40 AM (midnight), he recorded DD No.7A regarding the handing over of the said copy of FIR and original rukka to Ct. Subhash copy of DD No.7A is Ex.PW20/D.
22. Ct. Subhash This witness had gone to the spot along with Si sandeep (PW21) Kumar and has proved the following documents:
Ex.PW21/A Seizure memo of earth control, blood stained earth control, one blood stained match box and polythene Ex.PW21/B Seizure memo of one pair of chappal
23. SI Sandeep He is the initial investigating officer and apart from the Kumar (PW22) documents proved by various witnesses, he has proved the pointing out memo of the accused which is Ex.PW22/A.
24. Inspector He is the subsequent Investigating Officer and apart from Jawahar Singh the documents proved by various witness, he has proved the (PW24) following documents:
Ex.PW24/A Rukka
Ex.PW24/B Seizure memo of earth control
Ex.PW24/C Site plan
Ex.PW24/D PCR form
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 52
(56) Now coming to the microscopic evaluation of evidence
against the accused.
Identity of the accused:
(57) The identity of the accused Bantoo is not disputed being
previously known to the deceased and his family. Firstly he has been specifically named in the FIR. Secondly he had been apprehended at the spot itself by Ravi the cousin of the deceased after alarm was raised. Lastly he has been identified in the Court by the eye witnesses Smt. Bachno Devi (PW11), Bhagwan Dass (PW15) and Ravi (PW16). In view of the above, I hereby hold that the identity of the accused Bantoo stands established.
Recovery of the knife at the instance of the accused:
(58) The case of the prosecution that after the apprehension and arrest of the accused Bantoo he disclosed his involvement in the case and pursuant to his disclosure statement the knife used in the offence was got recovered by him from the garbage dumped in the public toilet J Block.
(59) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 53 of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(60) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(61) It further provides five illustrations as to what would constitute a fact which are as under:
(a) That there are certain objects arranged in a certain order in a certain place, is a fact
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain
intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation, is a fact.
(62) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 54 discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(63) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 55 "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 56 in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(64) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 57 Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 58 point and went on to make rather strong remarks about other parts of the evidence..."
(65) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(66) In the said case the Hon'ble Supreme Court further went to explain that :
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 59 police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(67) Now, applying the settled principles of law to the facts of the present case, it is evident that the accused had made a confession first to Ravi that he had thrown the knife when which he had stabbed the deceased in the garbage of the toilet and asked Ravi to first check and see the condition of Shyam that he should not die. It has been duly proved by the various police witness that the accused was arrested at the spot of the incident itself and after his arrest the accused made a disclosure in the presence of Ravi and his father Bhagwan Dass and it was on the pointing out of the accused Bantoo that the knife with which he had stabbed the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 60 deceased which Bacnho Devi has identified as the same knife (Ex.P1) which the accused was carrying when he had come to call Shyam. Apart from the police witness, both Ravi and Bachno Devi have identified their signatures on the seizure memo of the knife which knife was sealed and seized in their presence. The recovery of the kitchen knife which the accused had thrown deep into the garbage dump was effected immediately minutes after the incident when the police came to the spot. The promptness in the arrest of the accused and the recovery of the blood stained knife being effected without any loss of time and that too in the presence of public witnesses, leads to the inference in the circumstance of the case that the same is not planted and lends credibility and authenticity to the version of the prosecution. In view of the above, I hereby hold that the recovery of the knife Ex.P1 at the instance of the accused has been established which is a strong pointer to the guilt of the accused. Medical Evidence:
(68) PW10 Dr. Bhim Singh has proved the postmortem report of the deceased which is Ex.PW10/A showing that there were following external injuries on the body of the deceased:
1. Incised stab wound horizontally placed, left side of chest in the mid axillary line at the level of 4th intercostal space, situated 7 cm below axilla, measuring 4 cm x 1 cm x cavity deep inner angle obtuse.St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 61
2. Incised wound 0.5 cm x 0.2 cm x 0.5 cm left side of abdomen 8 cm outer below to umbilicus.
3. Incised wound 0.8 cm x 0.2 cm x 0.5 cm over outer aspect of left iliac.
(69) He has further proved that the cause of death was due to shock as a result of excessive bleeding via Injury No.1 i.e. incised stab wound horizontally placed, left side of chest in the mid axillary line at the level of 4th intercostal space, situated 7 cm below axilla, measuring 4 cm x 1 cm x cavity deep inner angle obtuse, which was sufficient to cause death in the ordinary course of nature. He has also proved that on 5.5.2011 he received a request for opinion on the weapon of offence i.e. the knife and after examining the said knife he had opined that the injury no. 1, 2 and 3 could be caused by the said knife and the cut marks mentioned in the clothes of the deceased were correspondent with Injury No. 1, 2 and 3. The witness has proved the subsequent opinion given by him along with the sketch of the knife which is Ex.PW10/G. Therefore, I hereby hold that the medical evidence is corroborative of the oral testimonies of the witnesses and other evidence adduced by the prosecution.
Forensic Evidence:
(70) PW23 Dr. Rajendra Kumar has proved the Biological Report in respect of the exhibits sent to him which is Ex.PW23/A and the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 62 serological report which is Ex.PW23/B showing that blood of A Group was detected on the pair of chappal, match box with sticks polythene sheet, pant and Tshirt of the accused deceased. Further, the weapon of offence i.e. the knife showed positive results for human blood and the clothes of the accused Bantoo also showed the presence of human blood.
In view of the above, I hold that the forensic evidence on record is compatible to the oral evidence on record.
Last seen evidence:
(71) The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(72) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 63
(73) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(74) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 64 appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden.
If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(75) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 65
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(76) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Bantoo is trustworthy or not. If yes, the effect thereto.
(77) The case of the prosecution is that both the accused and the deceased were drug addicts and often remained together. The deceased Shyam was handicapped being infected with Polio during his childhood and both the accused and the deceased used to beg in the area and from the said money they purchased the drugs and consumed the same. PW11 Smt. Bachno Devi has specifically deposed that on the date of incident i.e. 18.3.2011 the accused Bantoo came to their house and took her son (deceased) Shyam with him when she asked Shyam to take his dinner but he refused and went away with Bantoo and she saw both Bantoo and Shyam entering the public toilet situated at J Block which Block is visible from her house. Bachno Devi has further deposed that she had also seen a small kitchen knife in the hand of Bantoo on which she told Bantoo to throw the knife away but they both did not pay any heed to her and entered the MCD urinal and she thereafter saw them climbing the stairs. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 66 According to Smt. Bachno Devi both the accused and the deceased often sat together in the public toilet and consumed smack together due to which reason she did not have an suspicion on them when they went away together. She has also deposed that after some time she heard the shouts of accused Bantoo who was shouting very loudly by saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di" and thereafter Bantoo ran away from the spot on which she called out her nephew Ravi and asked him to find out what had happened. Ravi followed Bantoo and after sometime caught hold of him from another public toilet in the vicinity in the IBlock where Bantoo was sitting and consuming smack. According to Ravi when he caught the accused Bantoo, he (accused) told him that he had stabbed Shyam since Shyam had refused to give smack to him. He further told Shyam that he had thrown the knife deep into the garbage dump and also asked him to first check and see the condition of Shyam, that he should not die. (78) Coming first to the testimony of Smt. Bachno Devi (PW11), the relevant portion of the same is as under:
"........ I am a housewife. I have four sons and three daughters. The deceased Shyam was my second son. His right hand had been afflicted with Polio and he was handicapped. He was 10th class pass and had become addicted to smack for the last 7 to 8 years. He used to take smack alongwith accused Bantoo present in the court. (the witness has correctly identified the accused). Both my son and Bantoo used St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 67 to indulge into beggary for money and from the said money they used to purchase smack. On the night of 18/19.03.2001 Bantoo came to my house and took my son Shyam with him. I told my son Shyam to take his dinner but he refused to take food and went away with Bantoo. I saw both of them entering in the public toilet situated at J Block which is visible from my house. I had also seen one small kitchen knife in the hand of Bantoo. I called out to Bantoo and asked him why he was having knife in his hand and told him to throw away the knife but both my son Shyam and Bantoo did not hear me at all and entered the MCD urinal and I saw them climbing the stairs of the toilet. I did not have any suspicion because my son and Bantoo normally used to sit in this public urinal and consume smack. After about one hour to one hour fifteen minutes I could hear the shouts of the accused Bantoo and he was shouting very loudly by saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di". At that time I was standing outside my house and I saw Bantoo coming out of the toilet and running away. I immediately called out my nephew Ravi and asked him to find out what had happened and I myself went towards the toilet and did not enter the same because of the filth which was lying inside. In the meanwhile Ravi who had followed Bantoo, caught him from the I block public toilet and brought him back and handed over him to the police. Thereafter my statement was recorded which is Ex.PW11/A bearing my signatures at point A...."
(79) Bachno Devi had been subjected to a sustained cross examination wherein she has stated that the distance between her house St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 68 and the public toilet is hardly 10 to 15 paces and the said toilet was not being used to the public. According to her, it was about 10:00 PM when her son Shyam went along with the accused Bantoo. She has explained that her nephew Ravi used to reside in her house only and at the time when she raised an alarm 15 to 20 persons gathered near the toilet. (80) It is writ large from the testimony of Bachno Devi that she is the witness who had last seen her deceased son Shyam alive when the accused Bantoo came to her house and took Shyam with him to the public urinal of JBlock situated just in front of the house of Shyam which was visible from the house of Shyam/ Bachno Devi. The witness Bachno Devi has very categorically deposed that both Shyam and Bantoo used to sit in the public urinals to consume smack being habitually addicted to the same. She has also explained that she saw both of them climbing the stairs of the urinal while entering the same and also noticed Bantoo carrying a kitchen knife with him on which she had even questioned him and asked him to throw the same away. Here, I may note that the circumstances establish that both the accused and the deceased were compulsive addicts and remained together. The mother of the deceased (Bachno Devi) herself admits that her deceased son used to beg along with the accused to earn money from which they used to purchase smack. In this background, it is very natural that when she saw a kitchen knife in the hands of Bantoo while Bantoo and deceased Shyam were going to the public urinal she did not find it very unusual as it is a matter of common St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 69 knowledge that in order to facilitate the consumption of smack, kitchen knife is frequently used by addicts. I may further add that the knife got recovered by the accused Bantoo from the garbage dump was the same kitchen knife which Bachno Devi has identified as the one which she had seen in the hands of Bantoo. What lends credibility to her version is the fact that minutes after the apprehension of Bantoo by Ravi who was following him from adjoining public toilet, the said knife containing blood stains was got recovered. Further, Bachno Devi in her testimony has explained that she had seen Bantoo coming out of the public toilet shouting that he had killed Shyam after about one hour to one hour fifteen minutes after they had entered the same. Bachno Devi had come to know of the incident only on hearing the shouts of the accused Bantoo when she saw him coming out of the public toilet and running away shouting that he had stabbed Shyam, when she asked her nephew Ravi to find out what had happened and in pursuance to the same Ravi followed Bantoo and caught him.
(81) I hereby hold that there is a proximity between the last seen and the time of death of the deceased in as much as the deceased Shyam was last seen in the company of accused Bantoo. Further, the accused has failed to explain when he parted company with the deceased and where. It is only the accused Bantoo who could have explained this fact being in his special knowledge (under Section 106 of Evidence Act) which he has not done as reflected from his statement under Section 313 Code of St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 70 Criminal Procedure where he simply denies the said allegation. Hence, in view of the above, I hereby hold that the fact that the deceased Shyam was last seen alive in the company of the accused Bantoo is highly determinative of the guilt of the accused Bantoo.
Apprehension of the accused and his extra judicial confession:
(82) The present case relates to a crime committed by a drug addict to fulfill his cravings as a result of such addiction. According to the prosecution the accused Bantoo a smack addict had committed the murder of Shyam another addict when the deceased had refused to give him the smack. It is also the case of the prosecution that soon after repeatedly stabbing the victim Shyam, Bantoo took away the smack and started consuming the same by rushing to another public toilet at I Block after he had thrown the knife with which he had inflicted stab injuries to Shyam in the public toilet at J Block (place of the incident). It was Ravi the cousin of the deceased Shyam who was residing in the same house (of Bachno Devi/ Shyam) who rushed out of the house on hearing the cries of his aunt Bachno Devi and followed Bantoo in the same direction in which he had gone and found him consuming smack in the I Block public toilet.
In his testimony Ravi (PW16) has corroborated the version of Bachno Devi to the extent that on the date of incident i.e. 19.3.2011 at about 12:00 night he was lying on his cot on the roof of his house when he heard the cries of his Bua Smt. Bachno Devi who told him that Shyam had been St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 71 murdered by Bantoo, on which he went in search of accused who was found in the public toilet complex of IBlock who was taking/ consuming smack and blood stains were present on his clothes on which he apprehended Bantoo. He has deposed that Bantoo told him that he was asking for smack from the deceased Shyam who refused to give the same to him and therefore out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam. PW16 has further deposed that the accused had further informed him that he had thrown the said knife in the corner of public toilet at the deep of garbage. According to Ravi, Bantoo had also asked him to first check and see the condition of Shyam that he should not die. The relevant portion of the testimony of Ravi (PW16) is as under:
"........ I am working as a labour on daily wages whenever I get work. On 19.03.2011 at about 12.00midnight I was lying on my cot on the roof of my house. I heard cries of my Bua namely Smt. Bachno Devi who told me that her Shyam has been murdered by Bantoo. I went in search of accused Bantoo who was found in public toilet complex of I Block and he was taking/consuming smack. Blood stains were found present on his wearing clothes. I apprehended the accused Bantoo present in the court today, who told me that he was asking for smack from deceased Shyam who refused to give the same and out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam. Accused had further told me that he had thrown the said knife in the corner of public toilet at the deep of St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 72 garbage. He also asked me to first see the condition of Shyam if he had not died. I took accused Bantoo near the toilet of J Block where I came to know that Shyam had already died. By that time many public persons from neighbourhood gathered there. One Sonu a resident of our gali, called the police at 100 number at the instance of my Bua. Police reached at the spot and I handed over the accused to one Ct.
Mann. PCR Van and ambulance also reached the spot. Police inspected the spot and took the photograph of scene of the crime. Thereafter the dead body of deceased Shyam shifted to BJRM Hospital.
The accused Bantoo was arrested vide memo already Ex.PW15/A bears my thumb impression at point B. The personal search of the accused was conducted vide already Ex.PW15/B bearing my thumb impression at point B. The accused made his disclosure statement vide Ex.PW16/A bearing my signatures at point A. In pursuance of the disclosure statement accused Bantoo took the police party to the place of the incident where he pointed out the place vide pointing out memo, however I did not sign the same. Police also took into possession the blood stained clothes of the accused vide seizure memo Ex.PW16/B, bearing my signatures at point A. The knife which was got recovered by the accused, was taken into possession by the police. The sketch of the knife was prepared by the IO which is Ex.PW16/C bearing my signatures at point A. The said knife was kept in a cloth pullanda and was sealed (I do not remember the initials of the said seal) St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 73 and was seized vide seizure memo vide Ex.PW16/D bearing my signatures at point A. On the same day I identified the dead body of my cousin Shyam and my identification was recorded by the police vide already Ex.PW10/F bearing my signatures at point B and after post mortem was conducted the dead body was received by me and my other cousin brother namely Ajay Singh vide receipt already Ex.PW9/B bearing my signatures at point B. I can identify the case property if shown to me.
At this stage MHC(M) has produced one sealed parcel duly sealed with the seal of FSL, Rohini. The seal is broken and after opening the pullanda one knife is taken out with one FSL slip pasted on its handle and shown to the witness who correctly identified the same as recovered by accused Bantoo. The knife is EX P1....."
(83) Ravi has been crossexamined at length wherein he has admitted that he had not seen the incident and had gone alone in the search of accused Bantoo near the public toilet complex. He has explained that Bantoo was found in the J Block toilet which is slightly ahead of this toilet. Ravi has further stated that the police officials had reached the spot at about 12:30 AM (midnight) when his statement was recorded and has proved that the knife had been got recovered by the accused Bantoo from the garbage lying near the spot of the incident at J Block.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 74 (84) Bhagwan Dass (PW15) the father of Ravi and the brother of Bachno Devi whose signatures are also present on the arrest memo of the accused Bantoo has in his oral testimony corroborated what has been stated by Ravi and also confirmed that it was Ravi who had apprehended the accused Bantoo and handed him over to the police after which the documents of arrest were prepared.
(85) The testimonies of Bachno Devi and Ravi shows that they came to know of the incident because of Bantoo himself. Bachno Devi in her testimony has very categorically deposed that she was in her house when she heard the cries and shouting of Bantoo to the extent that he had killed Shyam because the deceased was not giving him the smack "maine Shyam ko chakoo maar diya, saale ne mujhe smack nahin di" after which she saw him coming out from the public toilet. Bachno Devi has explained that on seeing this she immediately asked her nephew Ravi to find out what had happened and did not enter the public toilet because of the filth lying inside the toilet which toilet was not in use. This fact that the toilet was covered with filth and not in use, is also borne out from the testimonies of the police witnesses particularly those who had first reached the spot and have proved the recovery of the knife at the instance of the accused Bantoo from the deep of the garbage lying inside the toilet on the ground floor near the gate. It is further evident from the testimony of Ravi that minutes after he apprehended the accused Bantoo from another public toilet in the adjoining I Block where he had gone to look St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 75 for him being aware that the deceased and the accused used to frequently consume smack while sitting in public toilets and when he found the accused Bantoo, he noticed that Bantoo was consuming smack at that time and Bantoo told him that he was asking for smack from deceased Shyam who refused to give the same to him and hence out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam. According to Ravi, the accused Bantoo further told him that he had thrown the said knife in the corner of public toilet at the deep of garbage and also asked him (Ravi) to first check and see the condition of Shyam and that he should not die.
(86) There is no reason to disbelieve the testimonies of Bachno Devi and Ravi since had it not been for the accused Bantoo himself who after stabbing Shyam started shouting that Bachno Devi and Ravi would not have come to know about the stabbing incident or about the place where the knife had been thrown by Bantoo. Even in the past Shyam and Bantoo used to stay together and it was very natural for their families to see them together. Therefore, even on the day of the incident after they entered the public toilet Bachno Devi was aware that they were going there to consume smack. It was only when she heard the shouts of Bantoo himself that she was alerted and went to the public toilet where according to her, she did not enter because of the amount of filth, garbage and dirt lying there, the toilet not being in use. What Bantoo had stated to Bachno Devi i.e. maine Shyam ko chakoo maar diya, saale ne mujhe St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 76 smack nahin di and to Ravi that he was asking for smack from deceased Shyam who refused to give the same to him and hence out of anger he (accused Bantoo) gave twothree knife blows on the person of Shyam, ......that he had thrown the said knife in the corner of public toilet at the deep of garbage ........ that he (Ravi) should first check and see the condition of Shyam that he should not die, are in the nature of Extra Judicial Confession. In this regard I may note that the Hon'ble Supreme Court summarized the law relating to Extra Judicial Confession in the case of Kusuma Ankama Rao Vs. State of Andhra Pradesh, reported in AIR 2008 SC 2819 as under:
".... Extrajudicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (in short the 'Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extrajudicial confessions, two questions arise: (i) were they made voluntarily ? and
(ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 77 making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.."
(87) Although an extra judicial confession is per se admissible, yet the courts insist upon a cautionary approach while evaluating its probative value. Applying the settled principles of law to the facts of the present case, it is evident that there is no reason to disbelieve the testimony of either Bachno Devi and Ravi on this count. Firstly there is no evidence to show any kind of existence of any animosity either between the accused or the family of the deceased. Secondly it is an admitted fact the deceased himself was a smack addict and both the accused and the victim were beggars and from whatever they used to earn from begging, they purchased smack from it and used to consume the same together. Thirdly it is also evident that the level of addiction of the accused Bantoo and the deceased was so high that at the time of the incident after Bantoo came to the house of the deceased to took Shyam along with him which is despite the mother of Shyam had also tried to stop them but they went to the public toilet for consuming smack. Fourthly when the accused Bantoo was apprehended by Ravi he was consuming smack and it was Bantoo who told Ravi that he had stabbed Shyam and to check his condition so that he should not die. Ravi was not aware of what happened to Shyam because on hearing the cries of his aunt Bachno Devi he ran after Bantoo and caught him at I Block toilet and it was from Bantoo that St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 78 he came to know that he (Bantoo) had stabbed Shyam because Bantoo repeatedly told him to first check the condition of Shyam so that he (Shyam) should not die. This was a voluntarily statement made by Bantoo to Ravi without any compulsion or pressure of any kind. Lastly at the time when Bantoo first announced that he had killed Shyam, he did so while coming out of the public toilet when he was running away from there. He was under no pressure or compulsion to do so nor was he under the influence of any intoxicant. I may observe that for the first time Bantoo had disclosed to Ravi that he had thrown the knife deep in the garbage dump and later when the police came he (accused) disclosed the same facts to them and pointed out the said place where he had thrown the knife and also got the same recovered from J Block toilet. This Extra Judicial Confession is voluntary, truthful, reliable and beyond reproach and therefore is an efficacious piece of evidence establishing the guilt of the accused.
(88) Further, I may observe that it is evident from the circumstances that at the time when Bantoo had stabbed Shyam he was not under the influence of smack. It is further evident that he was fully conscious and aware of the nature of his act and consequences of the same and hence after the incident while he was coming out of the toilet he shouted that he had killed Shyam who was not giving him smack. The fact that the accused Bantoo also knew the consequences of his act, is reflected from the testimony of Ravi who has deposed that when he St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 79 apprehended Bantoo from the I Block toilet, Bantoo asked him to first check and see the condition of Shyam that he should not die. This indicates that after having stabbed Shyam, Bantoo was filled with remorse which normally happens with those who commit violations under the spell of such addiction. Addiction is generally considered mental health condition but it does not lie within the parameter that typically define a mental illness in the Courts of law. Drug Addiction does not excuse an offender from being legally responsible for the crime. Addiction is a disease marked by lack of control. A drug addict will do things no one in their right mind would ever do just to get the next high. The offenders may thoroughly regret their behavior when the high wears off as has happened in the case of Bantoo, but it is a matter of common knowledge that this does not stop them from doing it again and often they cannot stop without help. The Indian Law does not recognize voluntary intoxication or addiction as an excuse. Since addiction is both under and outside of the addict's control, hence an addict who commits an addictionrelated crime does so at his own risk and has to be held responsible for the same. (89) The prosecution has been able to successfully establish that the accused Bantoo is heavily addicted to smack and so was the deceased Shyam who was also physically handicapped. Most of the time both the accused and deceased Shyam used to be together and being unemployed indulged into beggary. Further, out of the money received by them, they purchased smack and used to consume the same which they did while St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 80 sitting in public toilets. The murder of the victim Shyam had been committed by Bantoo only because Shyam had refused to give the smack which the accused Bantoo demanded. The fact that he repeatedly inflicted three successive knife blows with the kitchen knife which was already in his possession (normally used by addicts to facilitate consumption of smack), the first one being on the chest which injury was inflicted with great pressure and force and was sufficient in the ordinary course of nature to cause death. Intention can also develop at the spot itself as has happened in the present case. It is evident from the photographs Ex.PW1/A2, Ex.PW1/A7, Ex.PW1/A8, Ex.PW1/A9, Ex.PW1/A10 and Ex.PW1/A11 that blood was oozing out from the forehead, nose and mouth of the deceased, which indicates violence, perhaps a scuffle before the deceased was actually stabbed. The PCR form Ex.PW13/A is also reflective of this observation made by the police officials who first reached the spot. It is rather surprising that the doctor preparing the MLC and conducing the postmortem examination has done so most casually by simply mentioning that there was blood from the nose and mouth but omitted to give any cause for the same. These injuries are so apparent that they have even been noticed by this Court in the photographs Ex.PW1/A2, Ex.PW1/A7, Ex.PW1/A8, Ex.PW1/A9, Ex.PW1/A10 and Ex.PW1/A11 and I may mention that even the officials of the PCR who first reached the spot and saw the body of the deceased had presumed that perhaps the head of the deceased had been St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 81 banged on the wall due to which there was bleeding on the nose and mouth. I may further observe that the evidence on record suggests that at the time when the offence had been committed the accused Bantoo was fully conscious and within his senses. This is because when Ravi caught hold of Bantoo it was then that Bantoo was found consuming smack in the I Block toilet which smack it appears he had snatched from the deceased Shyam. I also note that because Bantoo was conscious and aware of his acts and it was for this reason that he had very categorically announced while rushing out of the toilet and later told Ravi what he had done (inflicted successive knife blows) and where he had thrown the knife and also to check and see the condition of Shyam so that he should not die. The manner in which the deceased was first beaten with his head banged on the wall and thereafter successively stabbed, establishes the intent to cause death, as contemplated under Section 300 Indian Penal Code and makes him liable for punishment offence under Section 302 Indian Penal Code.
FINAL CONCLUSION:
(90) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 82
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(91) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following facts stand conclusively established:
➢ That both the accused Bantoo and the deceased
Shyam were good friends.
➢ That they frequently indulged into beggary in the
area and from the money they got, they purchased smack which they both used to consume together while sitting in St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 83 public toilets.
➢ That the deceased Shyam and accused Bantoo
normally stayed together.
➢ That on 18.3.2011 at about 10:00 PM Bantoo came
to the house of the victim/ deceased Shyam and took Shyam with him despite protests by Smt. Bachno Devi the mother of the deceased.
➢ That Smt. Bachno Devi saw both Bantoo and Shyam entering MCD public toilet J Block which toilet was not in use and where they often sat to consume smack.
➢ That Smt. Bachno Devi also saw one small kitchen knife in the hand of accused Bantoo on which she called out to Bantoo and asked him why he was having knife in his hand and also asked him to throw away the knife but they both did not pay any heed to her and entered the MCD urinal and she saw them climbing the stairs of the toilet.
➢ That after some time Smt. Bachno Devi heard the shouts of accused Bantoo who was saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di".
➢ That Smt. Bachno Devi thereafter saw the accused Bantoo running away and on hearing the cries of Smt. Bachno Devi, one Ravi the nephew of Smt. Bachno Devi/ cousin of Shyam came out of the house and chased the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 84 accused Bantoo, apprehended him in another public toilet complex of IBlock (same area) where he was consuming smack.
➢ That the accused Bantoo told Ravi that he had asked smack from Shyam, who refused and hence out of anger he (accused Bantoo) had given twothree knife blows on the person of Shyam, which knife he had thrown in the corner of public toilet in the deep of garbage.
➢ That Bantoo also asked Ravi to first check and see the condition of Shyam, that he should not die.
➢ That thereafter Ravi took the accused Bantoo near the toilet of JBlock where he came to know that Shyam had already died on which one Sonu a resident of the area called up the police on 100 number.
➢ That on the basis of the statement of Smt. Bachno Devi the present FIR was got registered and the accused was arrested.
➢ That after the arrest of the accused, he got recovered the weapon of offence i.e. the knife from the garbage lying in the public toilet J Block, on which knife human blood was detected (FSL Report).
➢ That the postmortem report shows that the cause of death was due to shock as a result of excessive bleeding via St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 85 Injury No.1 i.e. incised stab wound horizontally placed, left side of chest in the mid axillary line at the level of 4th intercostal space, situated 7 cm below axilla, measuring 4 cm x 1 cm x cavity deep inner angle obtuse, which was sufficient to cause death in the ordinary course of nature.
➢ That the Injuries No.1, 2 and 3 mentioned in the postmortem report could be caused by knife got recovered by the accused and the cut marks mentioned in the clothes are corresponding with the injury No.1, 2 and 3.
(92) The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(93) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 86 and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (94) It is evident from the record that the accused Bantoo had inflicted three repeated knife blows on the body of Shyam thereby establishing his intent to cause death, as contemplated under Section 300 Indian Penal Code. At the time when the offence had been committed the accused Bantoo was fully conscious and within his senses and it is for this reason that he was very clearly able to tell what he had done and where he had thrown the knife and also pleaded to Ravi to save Shyam. I may note that even during the course of trial the accused Bantoo was directed to be provided medical treatment for his addiction which treatment is still continuing.
(95) The addictive behaviour of the accused Bantoo is a matter of his personal choice and he himself is fully responsible for the consequences of his acts and under no circumstances can be excused from being responsible for the legal consequences of the illegal acts committed by him. No blanket license can be given to a person to kill another to satisfy his physical cravings and then to claim the benefit of his having done so in a state of addiction which is impermissible. St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 87 (96) I hereby hold the prosecution has been able to prove and substantiate the allegations against the accused Bantoo beyond reasonable doubt and I hold the accused Bantoo guilty of the offence punishable under Section 302 Indian Penal Code having committed the murder of Shyam, for which he is accordingly convicted.
(97) Case be listed for arguments on sentence on 27.7.2012.
Announced in the open Court (Dr. KAMINI LAU) dated: 23.7.2012 ASJII(NW)/ ROHINI St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 88 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 19/2011 Unique Case ID No. 02404R0164292011 State Vs. Bantoo S/o Late Sh. Bhoop Singh Vegabond, Jahangir Puri, Delhi (Convicted) FIR No.: 61/2011 Police Station: Mahendra Park Under Section: 302 Indian Penal Code Date of judgment: 23.7.2012 Arguments heard on: 27.7.2012 Date of conviction: 31.7.2012 APPEARANCE: Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Bantoo in judicial custody with Ms. Sadhna Bhatia Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide a detailed judgment dated 23.7.2012 this Court has held the accused Bantoo guilty of the offence under Section 302 Indian Penal St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 89 Code.
This case involves the murder of a handicapped drug addict by the accused Bantoo another addict only because the deceased had refused to give smack to the accused when demanded. The case of the prosecution is that both the accused Bantoo and the deceased Shyam were good friends. They frequently indulged into beggary in the area and from the money they got, they purchased smack which they both used to consume together. The deceased Shyam and accused Bantoo normally stayed together. The case of the prosecution is that at about 10:00 PM Bantoo came to the house of the victim/ deceased Shyam and took Shyam with him despite protests by Smt. Bachno Devi the mother of the deceased. Smt. Bachno Devi saw both Bantoo and Shyam entering MCD public toilet J Block which toilet was not in use and where they often sat to consume smack. Smt. Bachno Devi also saw one small kitchen knife in the hand of accused Bantoo on which she called out to Bantoo and asked him why he was having knife in his hand and also asked him to throw away the knife but they both did not pay any heed to her and entered the MCD urinal and she saw them climbing the stairs of the toilet.
Shyam and Bantoo normally sat in this public urinal and consumed smack and hence it did not raise any suspicion in the mind of Smt. Bachno Devi till the time she heard the shouts of accused Bantoo who was saying "maine shyam ko chakoo maar diya, saale ne mujhe smack nahin di".
She thereafter saw the accused Bantoo running away. On hearing the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 90 cries of Smt. Bachno Devi, one Ravi the nephew of Smt. Bachno Devi/ cousin of Shyam came out of the house and chased the accused Bantoo, apprehended him in another public toilet complex of IBlock (same area) when he was consuming smack. The accused Bantoo told Ravi that he had asked smack from Shyam, who refused and hence out of anger he (accused Bantoo) had given twothree knife blows on the person of Shyam, which knife he had thrown in the corner of public toilet in the deep of garbage. Bantoo also asked him to first check and see the condition of Shyam, that he should not die. Thereafter Ravi took the accused Bantoo near the toilet of JBlock where he came to know that Shyam had already died on which one Sonu a resident of the area called up the police on 100 number. On the basis of the statement of Smt. Bachno Devi the present FIR was got registered and the accused was arrested. After the arrest of the accused, he got recovered the weapon of offence i.e. the knife from the garbage lying in the public toilet on which human blood was detected.
During the trial both Smt. Bachno Devi and Ravi appeared in the Court and supported the prosecution case. On the basis of the testimonies of the various witnesses examined by the prosecution, particularly Smt. Bachno Devi and Ravi and also on the basis of medical, forensic and other circumstantial evidence on record, this Court vide its judgment dated 23.7.2012 has held that the prosecution has been able to successfully prove the allegations against the accused Bantoo. It stands St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 91 established that Bantoo and the deceased Shyam used to consume smack together being good friends. It also stands established that on the date of incident i.e. 18.3.2011 both the accused Bantoo and the deceased Shyam had gone to JBlock, Public Toilet to consume smack and when Shyam refused to give smack to Bantoo, he inflicted knife blows on the abdomen of Shyam causing immediate death of Shyam and has therefore been held guilty of the offence under Section 302 Indian Penal Code.
Heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convict has vehemently argued that the convict Bantoo is a first time offender and is not involved in any other case. Ld. Counsel has prayed that a keeping in view the circumstances of the convict a lenient view be taken against him.
The convict Bantoo aged about 37 years is reported to be totally illiterate. He is a beggar and heavily addicted to smack. He has a family comprising of aged widow mother and one elder married brother.
On the other hand the Ld. Special Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Bantoo. He has argued that the convict deserves no mercy keeping in view the nature of allegations involved and a stern view be taken against him. He has St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 92 pointed out that by the act of the convict a young handicapped boy has lost his life. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 93
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
It was further observed by the Hon'ble Apex Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
I have considered the rival contentions. The present case relates to a crime committed by a drug addict. Although addiction is generally considered mental health condition but it does not lie within the parameter that typically define a mental illness in the Courts of law. Drug Addiction cannot be a mitigating factor to warrant lesser sentence and addiction does not excuse an offender from being legally responsible for the crime. A commonly held view of addiction is that it is a disease marked by lack of control. A drug addict will do things no one in their right mind would ever do just to get the next high. The offenders may thoroughly regret their behavior when the high wears off, but that does St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 94 not stop them from doing it again and often they cannot stop without help. Paradoxically, however, addiction is all about choice. A crucial part of treatment for addiction requires the addict to take full responsibility for his or her behavior. It is essential for the addicts to recognize that their addictive behavior is, on some level, a choice, and that they can choose differently. World over, those convicted of addictionrelated crimes are ordered into treatment as part of their sentences. Often in case of lighter/ less serious offences involving no violence, a lenient view is taken by the Court in case if the convict agrees to treatment. However, in heinous offences involving violence and damage to public property apart from substantive sentence the convict is also required to be treated for addiction or restitution. A uniform view which pervades is, that since addiction is both under and outside of the addict's control, someone who commits an addictionrelated crime should be both held responsible and offered treatment. (Ref.: Internet Article on 'Addiction Inbox' The science of Substance Abuse by Dirk Hanson).
The convict Bantoo is heavily addicted to smack and so was the deceased Shyam who was also physically handicapped. Most of the time both the accused and deceased used to be together and being unemployed indulged into beggary. Further, out of the money received by them, they purchased smack and used to consume the same which they did while sitting in public toilets. The murder of the victim Shyam had been committed by Bantoo only because Shyam had refused to give the St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 95 smack which the convict Bantoo demanded. During the course of trial the convict Bantoo was directed to be provided medical treatment for his addiction which treatment is still continuing. At the time when the offence had been committed the convict Bantoo was fully conscious and within his senses. In my considered opinion the addictive behaviour of the convict Bantoo is a matter of his choice and he himself is fully responsible for his behaviour and under no circumstances can be excused from being responsible for the legal consequences of the illegal acts committed by him. No blanket license can be given to a person to kill another to satisfy his physical cravings and then to claim the benefit of his having done so in a state of addiction which of course cannot be taken as a mitigating factor.
It is in this background that I am of a view that the case in hand certainly does not fall within the category of Rarest of Rare and I hereby sentence Bantoo to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 96
The Superintendent Jail is directed to ensure that appropriate medical treatment is provided to the convict Bantoo for purpose of deaddiction regular report of which should be sent to the Court.
The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 31.07.2012 ASJII(NW)/ ROHINI
St. Vs. Bantoo, FIR No. 61/11, PS Mahindra Park Page No. 97