Delhi District Court
As Observed In Jennison vs Beker (1972) I All on 14 January, 2008
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IN THE COURT OF SH. DINESH KUMAR SHARMA, ASJ, DELHI.
SESSION CASE NO. 47/07.
FIR NO. 404/99.
PS MODEL TOWN.
UNDER SECTION 302/364/342/201
OF IPC.
DATE OF ALLOCATION OF THE CASE TO THIS
COURT :-27.08.2007.
DATE ON WHICH THE JUDGMENT HAS BEEN
RESERVED :-20.12.2007.
DATE ON WHICH THE JUDGMENT HAS BEEN
DELIVERED :-09.01.2008.
STATE
VERSUS
1. TARA SHANKAR,
S/O SAHEB SINGH,
R/O A-137, MAUJI WALA BAGH,
AZADPUR, DELHI.
2. SHAMBHU DAYAL @ BHOLA,
S/O REWATI SINGH,
R/O A-87, MAUJIWALA BAGH, DELHI.
3. JAI SINGH @ GUDDU,
R/O VILLAGE GARA,
DISTRICT AGRA,
(U.P.)
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4. KOMAL S/O BANWARI LAL,
R/O VILLAGE GOTPURA,
PS KARAIT, DISTRICT MAINPURI,
(U.P.) (PROCLAIMED OFFENDER)
5. SRIKISHAN,
S/O JHAMMAN,
R/O MAHARISHI VALMIKI MANDIR,
R.B.T.B. HOSPITAL, KINGSWAY CAMP,
PS MUKHERJEE NAGAR,
DELHI. (PROCLAIMED OFFENDER.)
JUDGMENT:-
1. "The law should not be seen to sit by limply, while those who defy it go free, and those who see its protection loose hope".
As observed in Jennison Vs Beker (1972) I ALL ENGLAND REPORTER 997. These observations reminds the pious and onerous duty casted upon the trial court while imparting justice in the criminal trial. The underline message is not to be swayed by technicalities and close the eyes to factors which needs to be positively probed and noticed. Expecting the case of the prosecution to be totally free from any type of contradiction or inconsistency would be unrealistic. Therefore, to my mind, undue being obsessed by an air of suspicion regarding 3 the case of the prosecution may not lead us anywhere. The evidence of prosecution witnesses are required to be appreciated by adopting a total dispassionate and objective mind set. In the cases involving serious offence, the evidence is required to be examined scrupulously and the court is required to be careful, circumspect and cautious. In the name of the benefit of doubt, the defence cannot be given the opportunity to give flight to their imagination and fantasy. Every case has its own peculiar facts and circumstances. The duty of the court is to separate the chaff from the grain . The accused cannot be given premium of the faulty investigation. I consider that the approach of the court is required to be practical and pragmatic. Undue importance given to minor contradictions or discrepancies may result in the casualty of justice. Some contradictions are bound to occur as mode of narrating an incident of every individual is different. The witness can be discarded only when the variations are abnormal or unnatural.
2. The judge in the criminal trial is not supposed to act as a referee. The criminal trial can not be converted into battle of wits. 4 A reasonable doubt is not an imaginary or merely possible doubt. A reasonable doubt has to be based upon the reason and commonsense. Vague hunches cannot take the place of judicial evaluation. Exaggerated devotion to the rule of benefit of doubt must not nurture, fanciful doubt or lingering suspicion. Hon'ble Justice Krishna Iyer in Shivaji Sahebrao Bodade AIR 1973 SC 2622 observed as under :
"The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishments of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the 5 guiltless. For all these reasons it is true to say, with Viscount Simon, that " a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent".
3. Each and every individual reacts to a particular situation in its own peculiar manner. There can not be any scientific or precise formula for ascertaining the veracity on the basis of reaction of an individual in the given facts and circumstances. The case in hand has posed some of very interesting prepositions and the answer to these prepositions shall lead us to the decision of the case.
4. The question is should case of the prosecution be thrown out outrightly merely because the complainant reacted in a particular manner immediately after the alleged incident or for the delay of more than one month in lodging the First Information Report.
5. Another important question is that whether the accused persons can be given premium of faulty investigation conducted by the Investigation Agency. Here we can not loose sight of the fact that the prosecution is required to prove the case which they 6 have placed for trial and if any doubt arises in the story of the prosecution, the benefit of it must go to the accused. These are some of the questions which have surfaced and are required to be answered in the judgment. I consider that none of the question can be answered in isolation. These are the propositions which require deep probe and key to these would lie in the law as well as the facts of the case. I consider that basic principles as discussed here in above, are required to be kept in mind while deciding this case.
6. Here is the brief narration of the prosecution case. On 07.07.1999, daughter of Tara Shanker went missing and Smt. Prema Devi wife of Tara Shanker lodged FIR against Ranjit i.e. son of the complainant in this regard. On 11.07.1999 at around 8.30 AM, Tara Shanker asked the complainant to accompany him at around 12.00 Noon for taking back the girl and boy. At 12.00 Noon, Tara Shanker stated that at that time since the trains may not be available they shall leave next morning. However, on the same day, at around 11.00 PM, Tara Shanker alongwith Bhola, Guddu and Komal came to the terrace of the house of the 7 complainant and forcibly took away the complainant, his wife and his son on the knife point to the jungles of Agra in tempo No. DL- 1LA-6677. Here though initially the complainant did not say, but later on he alleged during his deposition before the court that accused persons also committed rape upon his wife.
7. On 13.07.1999, the complainant managed to escape from the custody of the accused persons and fled to his village. On 12.08.1999,after the complainant came back, he lodged the first information report with the police alleging the kidnapping and suspecting that accused persons have murdered his wife and his son Pradeep. On this, a case FIR under section 364/342/34 of IPC was lodged.
8. During investigation, while the complainant was accompanying the IO, it transpired that two dead bodies of an unknown male and female has been recovered in the area of Police Station Sirsaganj, Ferozabad. The clothes found on the above said dead bodies were shown to the complainant and he identified them to be of his wife and son. The dead bodies were identified on the basis of said clothes as the dead bodies of Smt. 8 Sita i.e. wife of the complainant and Sh. Pradeep i.e. son of the complainant. After this the offence under section 302/201 of IPC was also added.
9. On 01.10.1999, accused Tara Shanker and Shambhu Dayal @ Bhola were arrested by Anti Auto Theft Squad, North West, in case FIR no. 516/99 under section 411 of IPC. In this case, the accused persons made the disclosure statement which led to their formal arrest in the present case. During the investigation, accused persons disclosed that they kidnapped the complainant, his wife and his son on 11.07.1999 and thereafter they kept them in the jungles of Shikhobad. The accused persons further disclosed that after the complainant escaped, they killed the wife and son of the complainant by strangulating them and threw away the dead bodies in the well. The accused persons disclosed the complicity of Komal, Sarnam Singh, Sri Kishan and Jai Singh @ Guddu and also pointed out the place of the incident and the well where allegedly the dead bodies were thrown.
10. The perusal of the proceedings indicates that initially 9 challan was filed against accused Tara Shanker and Shambhu Dayal @ Bhola, whereas accused Kamal S/O Banwari Lal, Sri Kishan S/O Nekram, Jai Singh @ Guddu and Sarnam Singh were put in column no. 2. Subsequently, accused Jai Singh @ Guddu was arrested and supplementary charge sheet was filed against him under section 364/342/302/201/34 of IPC.
11. The perusal of the record has further indicated that the subsequent on a petition being filed by the complainant, accused Sarnam Singh was included in the list of the prosecution witnesses and his statement was recorded alongwith the statements of PW-Ganga Singh and PW Chander Kali. The investigation agency also deleted the name of Sri Kishan S/O Nek Ram from the list of Proclaimed Offender for want of any evidence. However on the basis of the supplementary statement made by the complainant and other witnesses, the supplementary charge sheet was filed against accused Sri Kishan S/O Jhamman, who was declared Proclaimed Offender vide orders dated 28.02.2001.
12. Pursuant to the compliance of Section 207 of Cr. P. C. 10 the case was committed to the court of Sessions and initially charge under section 364/34 of IPC, 302/34 of IPC and 201/34 of IPC was framed against accused Tara Shanker and Shambhu Dayal @ Bhola.
13. Subsequently, on 18.02.2002, my learned predecessor amended the charge in view of the orders of the Hon'ble High Court of Delhi, whereby the writ of the complainant was admitted and the directions were given to the police to file the supplementary challan. Pursuant to this direction the supplementary challan was filed against accused Sri Kishan S/O Jhamman, whereas Smt. Chanderkala, Ganga Singh and Sarnam Singh were shown in the list of the witnesses. The charges also required amendment as the police had dropped Sri Kishan S/O Nek Ram. Thus the amended charges were framed on 18.02.2002 to which the accused persons pleaded not guilty and claimed trial. Subsequent to the arrest of accused Jai Singh @ Guddu, the charges were also framed against him under section 364/34 of IPC, 302/34 of IPC and 201/34 of IPC. Accused persons pleaded not guilty and claimed trial. 11
14. Complainant had also filed a private complaint under section 302/364/323/506/376/342/201/120B/34/149 IPC against the accused persons. This complaint was committed to the courts of Sessions by the learned Metropolitan Magistrate on 09.03.2001. The perusal of the order sheet indicates that since the charge sheet had been filed against all the accused persons mentioned in the complaint, the complaint case was clubbed with the State case.
15. Prosecution in order to prove its case examined as many as 30 witnesses. My learned Predecessor also inspected the spot from where the accused persons allegedly kidnapped the complainant alongwith his wife and son. Accused persons in their statement recorded under section 313 of Cr. P. C. denied all the allegations and submitted that they have been implicated falsely. In defence, accused persons examined Ganga Ram, Jaibir Singh and Prem Shanker. The defences witnesses were in regard to the alleged recovery of dead bodies.
16. Ms. Alka Goel, learned APP for the State, has argued at length and submitted that the prosecution has successfully 12 proved its case against the accused persons beyond reasonable doubts and therefore the accused persons are liable to be convicted. Sh. S. P. Singh Choudhary, learned counsel for the complainant put forward his arguments and also filed the detailed written arguments.
17. Sh. B. S. Choudhary, learned counsel for the accused persons has pointed out several contradictions and loop holes in the case of the prosecution. He has argued in detail and pointed out that prosecution has miserably failed to prove its case against the accused persons beyond reasonable doubts, therefore the accused persons are entitled to be acquitted. Both the parties have also cited several authorities in support of their contentions. I have gone through the judgments filed by the parties.
18. Learned counsel for the accused persons has submitted that delay in lodging the FIR is fatal for the case of the prosecution. In support of his contentions, learned defence counsel has cited Vijaybhai Bhanabhai Patel Vs Navnitbhai Nathubhai Patel and Others, 2004 Supreme Court Cases (Cri) 2032.
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19. In respect of the improvements and contradictions which have appeared in the testimony of the prosecution witnesses, learned counsel for the defence counsel has cited Shingara Singh Vs State of Haryana and Another 2005 Supreme Court Cases (Cri) 870.
20. As I have discussed above, learned counsel for the accused persons has highlighted the unusual behaviour of the witness and in this regard, learned counsel for the accused has cited Maruti Rama Naik Vs State of Maharashtra, 2003 Cri. L. J. 4326.
21. In respect of the conduct of the complainant in fleeing away from the scene of occurrence even after having seen that the accused persons are assaulting his wife and son, learned counsel for the accused has cited State of Punjab Vs Sucha Singh and Others, 2003 Cri. L. J. 1210, wherein the father of the deceased was not believed in view of the fact that despite he being present on the spot did not make any efforts to rescue his son. The conduct of the father was held to be doubtful.
22. The complainant has also been emphasizing that 14 investigation in this case has not been done fairly. Learned counsel for the complainant has submitted that there are some serious lapse on the part of the investigation officer. However, he has submitted that the benefit of such lapses can not be given to the accused persons. In support of his contention, learned counsel for the complainant has cited Ram Bihari Yadav Vs State of Bihar (1998) 4 Supreme Court Cases 517, wherein it was interalia held as under:-
"Though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by brining on record dying declaration and GD Entry and have exhibited remiss and/or deliberately omitted to do what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the 15 appellant. In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people nor merely in the law-enforcing agency but also in the administration of justice."
23. In respect of the delay in recording the statements of PW-5,6 and 25, learned counsel for the complainant has submitted that in view of the extra-ordinary facts and circumstances of this case, this delay can not be held to be factual. It has also been argued that the defence has also not cross examined the investigation officer in this regard. In support of his contention, the learned counsel for the complainant has cited Banti alias Guddu Vs State of Madhya Pradesh, 2004 Cri. L. J. 372, wherein it was interalia held as under:-
"Unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It can not be laid down as a rule of universal application that if there 16 is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion."
1. Learned counsel for the complainant has placed reliance in this regard upon Ranbir and others Vs State of Punjab, AIR 1973 Supreme Court 1409, wherein it was interalia held as under:-
"The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing and got up witness to falsely support the prosecution case. It is essential that the investigating officer should be asked specifically about the delay and the reasons therefor. Evidence of a witness does not become untrustworthy merely because he was examined after delay by the Investigating Officer."
2. In respect of the failure of the accused persons to explain the fact where the deceased persons had gone after they had 17 been kidnapped by them. Learned counsel for the complainant has placed reliance upon Manikumar Thapa Vs State of Sikkim, (2002) 7 Supreme Court Cases 157 and Sahadevan @ Sagadevan Vs State, 2002 (8) Supreme 1, Supreme Court Cases.
3. In Sahadevan @ Sagadevan Vs State (Supra), it was interalia held as under:-
"If the prosecution, based on the reliable evidence, establishes that the missing person was last seen in the company of the accused and was never seen thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company.
If the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction."
4. Before discussing the evidence on record and the arguments advanced by the parties,let us look back in to the basics of the principles of appreciation of evidence. The golden principles of the Criminal Jurisprudence is that an accused is presumed to be innocent unless he is proved guilty. Prosecution 18 is required to prove its case beyond reasonable doubts. In our system of administration of Criminal Justice, the prosecution is required to stand on its own legs and it can not take benefit of the infirmities of the defence.
5. It is also a settled preposition that in a given case, if two views are possible, the view favorable to the accused must be taken. The benefit of doubt always go to the accused. However, it has already been held in the catena of judgments that the theory of benefit of doubt should not be stretched unnecessarily so as to give undue benefit to the accused. Justice should not be casualty in the name of any doubt found here and there. In this regard, reference can be made to State of Madhya Pradesh Vs. Dharkolel ,AIR 2005 Supreme Court 44, The Apex court interalia held as under :
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Doubts would be called reasonable if they are free from a zest for abstract speculation, or free from an over emotional response. Doubts must 19 be actual and substantial doubts as to the guilt the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt' but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
20. An accused can be given benefit of doubt only if he has been able to raise an actual and substantial doubt in the story of the prosecution. Merely by denying the story of the prosecution, the accused cannot get the benefit of doubt. The doubt raised on irrelevant grounds should not deflect the court. The court cannot ignore the vital and crucial evidence in the name of the benefit of doubt.
21. As I have discussed above, every case has its own peculiar facts and the court has to keep in mind the facts of the concerned case while appreciating the evidence on the record. There cannot be any fixed scientific formula for appreciation of the evidence or reaching to any conclusion. The degree of probability also differs from case to case.
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22. In State of M.P. Vs. Dharkole (supra), it was further inter alia held as under :-
"The concepts of probability, and the degrees of its, cannot obviously be expressed in terms of unit to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubts. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as his lordship then was) in State of U.P. Vs. Krishna Gopal and Anr. (AIR 1988 SC 2154)."
23. While appreciating the evidence of the witnesses produced by the prosecution, the court is required to separate the grain from the chaff. The superior courts have laid down time and again that while appreciating the evidence and in order to record the guilt of the accused, the court is required to assess the 21 evidence on the scale of probabilities. The evidence in such cases is to be appreciated minutely, carefully and it should be properly analyzed.
24. For the better understanding of the case, I consider that the facts of the present case can be divided into following heads.
1. Son of the complainant being suspected of taking away the daughter of accused Tara shanker.
2. Alleged kidnapping of the complainant Kishori Shah, his wife Sita and his son Pradeep on 11.07.1999 from the house of the complainant.
3. Recovery of two dead bodies one of male and another female on 21.07.1999.
4. Recovery of the daughter of the complainant on 24-07- 1999 and filling of challan against the son of the complainant in this regard.
5. Lodging of the FIR by the complainant on 12.08.1999.
6. Identification of the recovered dead bodies as of wife and son of the complainant on the basis of clothes on 09.09.1999.
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7. Arrest of accused persons on 01.10.1999 in case FIR no. 516/99.
25. The complainant's son being suspect in taking away of the daughter of the accused:- The prosecution has based its case upon the fact that since accused Tara Shanker had suspected that his daughter had been taken away by the son of the complainant, therefore in order to take revenge, he kidnapped and committed the murder of the wife and son of the complainant along with the co-accused in furtherance of the common intention. In this respect, prosecution has examined PW-13 ASI Robin Tobbo so as to prove that FIR was lodged against the son of the complainant. PW-26 SI Sanjeev Kumar proved that charge sheet in this case was filed against son of the complainant under section 376 of IPC. The girl in this case was recovered on 24.07.1999 from the possession of Ranjit S/O Kishori Shah i.e. the complainant in the present case. It also came on the record that charge sheet under section 363/366/376 IPC was filed against son of the complainant in this regard.
26. Alleged kidnapping of the complainant Kishori Shah, 23 his wife Sita and his son Pradeep on 11.07.1999 from the house of the complainant and lodging of the FIR by the complainant on 12.08.1999:- In order to prove this fact, the prosecution has examined complainant as PW-1 and eye witnesses Chander Kala as PW-5, Ganga Singh as PW-6 and Sarnam Singh as PW-25. As I have discussed above, my learned predecessor also visited and inspected the place from where the complainant, his wife and his son were allegedly kidnapped and placed the inspection report on record. My learned Predecessor also prepared the site plan, which is also on record.
27. Recovery of two dead bodies one of male and another female on 21.07.1999:- In respect of this fact, the prosecution has examined PW-7 Rambir, PW-8 Om Prakash, PW-9 Mukesh, PW-10 Raghubir Singh, PW-11 Satinder Singh, PW-17 SI Hari Singh, PW-18 SI Mohan Singh, PW-20 constable Ram Bahel and PW-28 constable Komal Singh.
28. Identification of dead bodies as wife and son of the complainant on the basis of clothes on 09.09.1999:- In order to prove this fact, the prosecution has based its case upon the 24 testimony of the complainant Kishori Shah PW-1 and PW-21 SI Manvinder Singh IO.
29. Arrest of accused persons on 01.10.1999 in case FIR no. 516/99:- Prosecution has examined PW-3 constable Om Prakash, PW-14 ASI Naresh Chand, PW-15 HC Mohd. Yasim in order to prove the fact of the arrest of accused persons Tara Shanker and Shambhu Dayal @ Bhola in case FIR no. 516/99. The accused persons made a disclosure statement on the basis of which they were arrested in the present case.
30. During the investigation of the present case, the accused persons made the disclosure statement and also pointed out the place of incident. To prove this fact, the prosecution has examined PW-12 HC Saifuddin, PW-16 HC Bhopal Singh, PW-19 constable Jasvinder Singh, PW-20 constable Ram Bahel and PW-23 constable Nirmal Singh. The investigation in this case has formally been testified by three investigation officers. PW-4 SI Rajesh Kumar. He almost played no role and the case was transferred from him on 19.08.1999. Mainly the investigation was conducted by PW-21 SI Manvinder Singh. PW-24 Inspector 25 Gurmeet Singh filed the charge sheet.
31. PW-29 HC Sham Babu was the formal witness, who executed production warrant against the accused Jai Singh @ Guddu and Ms. Archana Sinha, learned MM, PW-30, who is the witness to prove the TIP of accused Jai Singh @ Guddu. PW-18 SI Mohan Singh, MHC(M) and PW-27 Dr. Mohd. Idrish, who conducted the postmortem, are the link witnesses. HC Bindu, Duty Officer of the present case has been examined by the prosecution as PW-2.
32. The defence witnesses produced by the accused persons are regarding the alleged recovery of dead bodies from the well within the jurisdiction of PS Sirasganj. The defence has vehemently denied this fact.
33. It is also worthwhile to mention here that during the trial, accused Tara Shanker was admitted to interim bail by my learned Predecessor on 16.12.2002 for the period from 03.01.2003 to 02.02.2003 on account of marriage of his eldest daughter. However,accused Tara Shanker failed to surrender after the expiry of interim bail. Process under section 82/83 of Cr. P. C. 26 were issued against accused Tara Shanker and he was declared Proclaimed Offender on 15.07.2004. Subsequently, accused Tara Shanker started appearing in this case on 19.10.2006. However Sh. B. S. Choudhary, learned counsel for the accused made the statement before the court on 08.01.2007 that the accused does not wish to cross examine the witnesses, who had already been cross examined by other accused persons in his absence. Learned counsel for accused Tara Shanker Stated that he has no objection if the evidence which has come on record even in the absence of accused Tara Shanker is read against him.
34. If we peruse the entire testimony of the prosecution witnesses and the case placed for trial the case of the prosecution can be divided into two parts for the purpose of clear understanding i.e; Kidnapping and murder.
35. As far as the kidnapping is concerned, the prosecution has led evidence in the form of complainant himself as PW-1, PW-5 Chander Kala, PW-6 Ganga Singh and PW-25 Sarnam Singh.
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36. The fact of murder is more or less based on circumstantial evidence besides the testimony of complainant himself. The chain of circumstances relied upon by the prosecution is recovery of dead bodies, their identification by the complainant, motive of the accused persons and the disclosure statements made by the accused persons subsequent to their arrest in the present case.In a case based upon circumstantial evidence , it must satisfy three tests :
Firstly, the facts from which an inference of guilt is sought to be proved, must be cogently and firmly established:
Secondly, the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused:
Thirdly, the circumstances taken cumulatively, must form a chain so complete that there is no scope from the conclusion that within all human probabilities the crime was committed by the accused and none else.
37. Firstly, let us take the kidnapping part. PW-1 Complainant Kishori Shah in his testimony stated on oath that on the day of incident, he himself alongwith his wife Sita Devi and 28 his son Pradeep Kumar were sleeping on the roof. Five persons namely Guddu @ Jai Singh, Bhola @ Shambhu, Tara Shanker, Sri Kishan S/O Jhamman and Komal came there. Sri Kishan S/O Jhamman was standing downstairs and the other four persons came to the roof with knives in their hands. It was around 11.30 PM. Accused persons took the complainant, his wife and son on the point of knife and brought them downstairs. Accused persons took them in TATA 407 to Kushwaha Nursery.
38. Complainant has also stated that all the above named accused persons committed rape upon his wife in his presence and after staying at the Nursery for about 1 ½ hour these persons took them in the direction of Agra. He has further stated that on 12.07.1999, they were all beaten up by the accused persons and on 13.07.1999 the accused persons obtained the signatures of his wife and son and his thumb impression on stamp paper. At the same time, all the accused persons assaulted his wife and son with knives and when his wife fell down, he got an opportunity to run away. The complainant ran to the railway station and from there, he reached his village after changing 29 many trains.
39. Complainant has further stated that he returned to Delhi after 20 days and went to PS Model Town, where his report was not lodged. Then, complainant approached DCP at Ashok Vihar and only at his intervention, the report was lodged. He has stated that in the PS Model Town, he named all the five accused persons but the name of one of the accused was not mentioned by the police. FIR has been proved as Ex. PW-1/A.
40. Complainant also stated that the fact of rape being committed upon his wife was also not mentioned by the police intentionally in the complaint. In the cross examination, complainant stated that PW Ganga Singh, Sarnam and Chanderkala had seen the accused persons kidnapping them. During the cross examination, the complainant further stated that there was independent staircase leading to the roof from the ground but there was no door in the staircase. During the cross examination, at the request of the learned counsel for the accused, my learned predecessor visited the spot and inspected the same.
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41. Sh. A. K. Garg, the then learned ASJ, prepared the inspection report and the site plan. The perusal of the site plan indicates that the roof on which the complainant was sleeping alongwith his wife and son was around 8'3" X 9'3". The perusal of the site plan also indicates that the staircase is leading directly to the roof from the ground floor with no door and its width was around 2'10". The inspection report also indicates that at the time of inspection, complainant as well as Sh. B. S. Choudhary, the learned counsel for the accused was also present. In the inspection report, it has been mentioned that the width of the staircase at the roof was 2'3" and its width on landing on the ground floor was 1'6" only. It has also been mentioned that only there were two three houses on the East and West side of the house,which appeared to be old construction and the other houses appeared to be newly constructed. It was also pointed out that the gali leading from the side road to the house was very narrow. The copy of the inspection report was duly supplied to both the parties. In the cross examination, the complainant stated that once he managed to escape from the custody of the 31 accused persons, he reached Nepal after about four days and he did not see any police official at the railway station. The complainant also stated that he became unconscious after reaching his native place in Nepal and regained his consciousness after about 15 days. In further cross examination, the complainant stated that after being kidnapped, they were kept in the back portion of the vehicle which was opened and on the way of Agra, the vehicle was not checked by the police at all.
42. Learned counsel for the accused has assailed the testimony of the complainant on the ground that it is totally improbable. It has been argued at length that the version given by the complainant is totally unreliable and cannot be believed.
43. Another witness in respect of this fact is PW-5 Chander Kala, who has stated on oath that more than 5 years ago on 11.07.1999 at around 11.30 PM, Guddu and Bhola came to the house of Kishori Shah alongwith Tara Shanker, Komal and Sri Krishan. The accused Guddu and Bhola were correctly identified by the witness. The witness has further stated before the court that all the five accused persons picked up Kishori shah, his wife 32 and his son from the roof and brought them downstairs and took them away in a TATA 407. Sri Kishan was driving the vehicle. She has further stated that when Kishori Shah, his wife and son were brought downstairs, she was in the bathroom below the staircase. She has also stated that the accused persons were having knives in their hands and the victims were walking ahead of them.
44. In the cross examination, PW-5 Chander Kala stated that she had gone to the house of Kishori Shah to call his wife so that she could go with her to the hospital where her daughter in law was admitted. PW-5 stated that she is illiterate and she even can not read the watch. PW-5 has stated that she had seen the accused persons from the distance of 3-4 feets. In the cross examination, contradictions were brought on record in the statement made by the witness before the police and made before the court. The testimony of this witness has also been termed to be totally unreliable by the defence in view of the contradictions appearing in her testimony.
45. PW-6 Ganga Singh stated that on 11.07.1999 at about 33 11.30 PM, while he was standing on the road in front of his gali, Tara Shanker, Jai Singh, Bhola and Sri Kishan S/O Jamman came in TATA DL-1LA-6677 and had parked the same in front of the shop of Sharma. The witness identified accused Jai Singh and Bhola before the court. He further stated that after some time, he saw that all the above named accused persons were bringing Kishori Lal, his wife Sita Devi and his son Pradeep by holding them at the knives points and took them away in TATA
407. PW-6 also stated that the Sri Kishan was driving the vehicle.
46. In the cross examination, PW-6 admitted that the accused persons belong to his Biradari but they do not belong to his family. PW-6 stated that the accused persons took away the victims on the knife point. PW-6 admitted that neither he visited the police station nor did he ask anybody to lodge the complaint.
47. It is a matter of record that the statement of this witness was recorded on 30.12.2000 i.e; around one year or four months after the incident. PW-6 admitted that he was convicted in a case under section 307/34 of IPC in which the brother of accused Tara 34 Shanker was complainant. The appeal against the said order was pending disposal. In the cross examination, PW-6 also stated that the victim did not raise any alarm while they were being kidnapped because they were nervous. PW-6 also admitted that there was no electricity poll in the gali of complainant Kishori Shah. I may say at the outset that I am not inclined to believe this witness for the reason that he was convicted in a case in which the complainant was the brother of one of the accused. Therefore, there is reason for this witness to depose falsely against the accused persons.
48. PW-25 Sarnam Singh, another eye witness has stated on oath that on 11.07.1999 at about 11.30 PM, while he was passing through the gali, he saw the accused persons dragging Kishori Shah, his wife Sita Devi and his son Pradeep from their house and all the five persons were having knives in their hands. They dragged the victims towards the east side near the shop of Sharma. TATA 407 bearing No. DL-1LA6677 was parked Opposite the shop of Sharma. He further stated that victims were made to sit in the rear side of the vehicle.
35
49. In the cross examination, PW-25 admitted that he himself and accused Tara Shanker were involved in a case under section 107/151 of Cr. P. C. but this ultimately resulted into compromise. In the cross examination, the witness stated that there was electricity poll near the petrol pump. This witness also stated that neither he visited the police station nor did he ask anybody else to lodge a report in the police station.
50. The testimony of these witnesses and the complainant has been assailed by the accused persons. It has been submitted that the version of the complainant is not at all reliable and his deposition is full of contradictions. It has been submitted that statement made by the complainant is totally improbable and does not appeal to the reason. PW-5 Chander Kala has also been termed unreliable in view of the improvements and contradictions appearing in her testimony. PW-25 Sarnam Singh has also stated to have been nursing grudge against accused Tara Shanker. The conduct of these three witnesses in not reporting the matter to the police immediately after the incident, has been stated to be indicative of the fact that they are planted 36 witnesses. It has also been submitted that their statements were recorded by the police after much delay and therefore this is classic case of after thought so as to bridge the gap in the story of the prosecution. The improvements and contradictions which have appeared in the testimony of the complainant like the alleged rape being committed upon his wife by the accused persons, killing of his wife by the accused persons, has also been highlighted so as to discredit the complaint. The fact that the complainant ran away leaving behind his wife and son in the clutches of the accused persons, has been stated to be against the human conduct.
51. The defence has argued that it is highly improbable that during the journey of four days from Agra to Nepal, the complainant did not report the matter to the police and it took around 20 days to come back to the police to lodge the report. It was not ordinary circumstance, the life of his wife and son was in extreme danger and therefore, the purported conduct of the complainant as set out is unreliable and unbelievable.
52. Before appreciating the evidence of these witnesses, I 37 consider that we must understand that these witnesses are not qualified and they seem to be illiterate or semi-illiterate type of people,who may not have even the developed faculty of mind to narrate an incident. While appreciating the evidence of any witness, the educational qualification of a witness, its background and the surrounding circumstances must be taken into account. No evidence can be found to be free from infirmity or contradiction. The narration of an incident is not an easy task. It requires not only the excellent memory but also selection of appropriate words. Sometimes, an individual may even fall short of words so as to express the incident what he or she wants to say.
53. Communication is not an easy task, therefore, before branding any witness true or false due care or caution is required to be taken. It is a settled proposition that "falsus in uno and falsus in omnibus" is not a sound principle of law in Indian context. In this regard, reference can be made to State of U. P. Vs Shankar, AIR 1981 SC 897. The Apex court inter alia held as under :
38
"In this country it is rare to come across the testimony of a witness which does not have a fringe or an embroidery of untruth although his evidence may be true in the main. It is the function of the Court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is tainted to the core, the falsehood and the truth being inextricably intertwined, that the Court should discard his evidence in toto."
54. In State of Rajasthan Vs. Kalki, AIR 1981 SC 1390. The Apex court interalia held as under :
"The Discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and like material discrepancies are those which are not normal, and not expected of normal person."
55. In Abdul Razaq Vs Nanhey, AIR 1984 SC 452, Supreme Court observed that where the witnesses are not interested and where there is no motive for false implication there must be strong grounds to disbelieve them.
56. In Boya Ganganna Vs State of A. P. AIR 1976 SC 39 1541, the Supreme Court observed that minor contradictions are bound to appear when ignorant and illiterate women are giving evidence. Even in the cases of trained and educated persons memory sometimes plays false and this would be much more so in case of ignorant and rustic women.
57. PW-5 and 25 have made the consistent and corroborative statements to the fact that the accused persons kidnapped the complainant alongwith his wife and his son from his house at the knife point and took them away in a TATA 407. Mere fact that PW-25 did not lodge the report with the police can not be a ground to discard his testimony altogether. I do not find any cogent reason to disbelieve the testimony of these witnesses.
58. We have to look back into the entire circumstances. These witnesses, complainant party and accused Tara Shanker were living in the same locality. The daughter of Tara Shanker was missing and son of the complainant was suspect. The colony in which these parties were residing is not a posh colony. There are small houses situated in the congested colony. In 40 these small colonies, normally every body come to know about such incidents. The possibility that these witnesses after having seen the incident might have thought to not to interfere in the affairs of the complainant party and the accused can not be ruled out. It has also to be kept in mind that the complainant is Nepali, and the witnesses are local people. There has to be very strong reason for these witnesses for falsely taking the side with the complainant and against the accused persons. The defence has failed to bring any such material on record.
59. It must be borne in mind that at that time the son of the complainant was on the wrong side of law. There can be a feeling in the mind of the witnesses that the accused might be making the efforts to trace his daughter. The human conduct can not be defined in a straight jacket formally. The witnesses are the eyes and ears of the court in the criminal trial. The judge is not only required to protect the accused persons but its duty also extends to ensure that guilty persons are not let off on the whimsical grounds. Unless there are sufficient reasons to discard the testimony of a witness, it should not be rejected 41 merely at the drop of the hat.
60. I consider that the contradictions which have appeared in the testimony of PW-5 and 25 are not that material which are sufficient to reject their testimony altogether. We have to see the intrinsic value of the witness.
61. Now coming to the testimony of the complainant. No doubt, there are certain contradictions and improvements, but we have to see the core value of the testimony. Should the complainant be disbelieved because in the testimony before the court , he made certain improvements. The point is,did he make any statements which are contrary to the main facts.
62. I consider that we have to ascertain that whether the center point and the axis on which the circumference has been drawn has remained the same or not. Here is the complainant whose wife and son were kidnapped. He is not resident of this country. When it comes to the life of any individual his first and foremost priority is to protect his own life. The possibility that when the complainant realized that even he may be killed he fled away and directly went to his native place, cannot be rejected 42 altogether. It is also to kept in mind that till time the daughter of the accused was missing and a case had been registerd against the son of the complainant. The complainant must be apprehensive at that time and this may be the reason that he did not immediately approach the police.
63. I consider that the conduct of the complainant was not such which can be branded totally improbable. The site plan prepared by my learned Predecessor also reveals that the staircase was leading directly to the roof from the ground. Though the width of the staircase was little more than two feet but in this width also an individual can get down one by one. Again we have to recreate the scene that at that time the complainant party was on the wrong side and the daughter of one of the accused Tara Shanker was missing. The complainant party must be terrified as well as under social pressure and there is possibility that they got down one by one without making any noise and accompanied the accused persons. Therefore the story of the prosecution up to the stage, that the complainant alongwith his wife and his son were kidnapped on 11.07.1999 43 from their house by the accused persons seems to have been proved beyond reasonable doubts. I consider that the delay in lodging the FIR has also a plausible explanation.
64. While the matter rested thus on 21.07.1999 two dead bodies of unknown male and female were recovered from a well in a village Bachela-Bacheli, PS Sirsaganj. The dead bodies were in a highly decomposed position. The dead body of female was found to have a red printed saree, pink petticoat and blouse in decomposed position. Similarly, on the male dead body, there was only one shirt and the baniyan was in decomposed position. The local police conducted the panchnama and postmortem was conducted. In the postmortem report, no opinion as to the cause of the death could be ascertained. The perusal of the postmortem report Ex. PW-27/B and PW-27/D indicates that though the femur, tibia and bones were preserved but the DNA test was not conducted for the reason best known to the investigating agency. Here I would like to say that application of forensic science in such type of cases are very useful and could have brought some clinching evidence. Investigating agency 44 must use these tools to make the investigation effective.
65. In order to prove the recovery of dead bodies, the prosecution has examined, witnesses PW-7 Rambir, PW-8 Om Prakash, PW-9 Mukesh, PW-10 Raghubir, PW-11 Satender (the testimony of this witness can not be read as he was not tendered for cross examination), PW-17 SI Hari Singh, PW-18 SI Mohan Singh, PW-22 constable Shaligram, and PW-28 constable Komal Singh.
66. These witnesses did not support the case of the prosecution. PW-7 Rambir stated that he saw the skeletons from the distance. However, in the cross examination conducted by learned APP, this witness stated that it is possible that the dead bodies were recovered on 21.07.1999. PW-8 OM Prakash also stated that skeletons were recovered from the well. PW-8 also stated in the cross examination conducted by learned APP that there was a red printed dhoti on skeleton. PW-9 Mukesh stated that he does not know anything about this case. PW-10 Raghubir Singh stated that his signatures were obtained on the papers by the police. PW-11 Satender Singh also stated that his 45 signatures were obtained on the papers by the police. Thus none of the witness of the Panchnama prepared by the police supported the case of the prosecution. Maximum which can be derived from their testimony is that two skeletons and some clothes were recovered from the well. Before proceeding further, I would like to mention here that till 21.07.1999 even the FIR in this case had not been lodged. Therefore, there is no possibility of fabricating the record at that time. The signatures of all of these witnesses appear on the Panchnama. It has to be kept in mind that some of the accused belong to the nearby villages from where these witnesses belong and therefore, this may be the reason of these witnesses not supporting the case.
67. It is also a settled proposition that testimony of a hostile witness can not be rejected altogether. In this regard, reference can be made to Syed Akbar Vs State of Karnataka, AIR 1979 SC 1848, the Supreme Court observed that as a legal proposition, it is now settled by the decisions of this Court that the evidence of a prosecution witness cannot be rejected wholesale merely on the ground that the prosecution had dubbed him 46 'hostile' and had cross examined him.
68. Now coming to the testimony of the police officials. PW- 17 SI Hari Singh has specifically stated that two dead bodies were recovered and proved the proceedings under section 174 of Cr. P. C. as Ex. PW-17/B and 17/C.
69. PW-18 SI Mohan Singh is an important link witness. He has specifically stated that the sealed parcel containing some clothes were deposited in the malkhana alongwith postmortem reports and the same were given to the IO of this case on 09.09.1999. PW-22 constable Shaligram had also accompanied the IO on 21.07.1999. He identified the clothes recovered on the dead bodies. PW-22 was link witness who took the dead bodies for the postmortem.
70. If we peruse the testimony of all the witnesses in regard to the recovery of dead bodies on 21.07.1999, the conclusion can be reached that the two dead bodies, one of male and another of female was recovered from the well. The panchnama prepared at the spot also indicates that the clothes as mentioned above, were found on the body of deceased persons. There was 47 no reason for the police officials on that day to forge and fabricate documents as to the recovery of two dead bodies.
71. Learned counsel for the accused has also argued at length on the point that the time of death given in the postmortem report also falsifies the story of the prosecution. It has been submitted that in the postmortem report the time of death has been opined to be much prior to when allegedly the victims were murdered in the present case. Ld. APP in this regard has submitted that time of death given in the postmortem report cannot be considered as conclusive. In Ram Bali Vs State of Uttar Pradesh, AIR 2004 Supreme Court 2329, the Apex Court observed that medical science is not yet so perfect as to determine the exact time of death. The time of death cannot be determined in a computerised or mathematical fashion so as to be accurate. It is also a settled preposition that medical science has not achieved at all perfection so as to enable a medical practitioner to categorically state in record as to the exact time of death. It is a settled proposition that medical opinion regarding the time of death cannot be taken as a gospel truth. It is broadly 48 an estimated time and much reliance can not be placed on the time of death given by the Doctor. The dead bodies in the present case were found in a decomposed state and therefore, the opinion as to the time of death given in the postmortem report cannot be considered fatal for the case of the prosecution.
72. Now coming to the question is that whether the dead bodies so recovered relate to the present case. In this regard, we have to revert back to the testimony of the complainant. In his testimony, the complainant specifically stated that he was taken to PS Sirasganj, UP and there the clothes of his wife and son were shown to him. The complainant has further stated that he identified the clothes of his son and wife and the same were taken into possession vide memo Ex. PW-1/B. The complainant identified the clothes as Ex. P-1 and P-2 collectively.
73. In this regard, in the cross examination of the complainant also nothing material came out against the prosecution . The complainant was asked that whether he remember the date when he went to PS Sirasganj for identification of the clothes, which the complainant was not able 49 to tell. The complainant in the cross examination stated that he had given the description of the clothes of his wife and son to the police.
74. PW-21,SI Manvinder Singh, Investigation Officer, in this regard, has also made a specific statement that the clothes found on the dead bodies were shown to the complainant and he duly identified the same as of his wife and son. In the cross examination, IO admitted that the clothes of the deceased were unsealed. However, this factor alone cannot be deemed as fatal for the case of the prosecution. The golden principle of the appreciation of evidence is that no fact can be seen in piece-meal or isolation and all the facts are required to be seen in its totality. Even otherwise, once it is proved that deceased persons were kidnapped by the accused persons and the complainant has made a specific statement on oath that they have died, the onus stood shifted to the accused persons to explain the same. Once the initial burden has been discharged by the prosecution, the onus to explain this fact which was in the special knowledge of the accused persons stood shifted upon the accused persons. 50 The accused persons have failed to explain this fact. In a case based upon circumstantial evidence, the prosecution is required to establish all the pieces of incriminating substance by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other then the guilt of accused. However, if the particular fact is particularly in the knowledge of the accused, the burden to prove or disprove that fact is on the accused. Thus in a case where the deceased was seen last in the company of the accused, the accused is required to offer an explanation as to how and when he parted company. Such an explanation must also be probable and satisfactory. If the accused has given plausible and satisfactory explanation, thus onus stands discharged. However, if the accused fails to offer an explanation of facts within his special knowledge, he is deemed to have failed to discharge the burden casted upon him by Section 106 of the Evidence Act.
75. In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation and discharge the burden placed upon him, that itself provides an additional link 51 which completes the chain of circumstances proved against him. Reference can be made to State Vs. Kashi Ram, AIR 2007 Supreme Court 144. It is a settled proposition that if accused fails to throw any light upon the facts which are specially within his knowledge and which could not support any theory or hypothesis compatible within his innocence, the court may consider his failure to adduce any explanation, as an additional link which completes the chain. In the present case as I have discussed above the prosecution has proved successfully by way of cogent and credit worthy evidence that accused persons kidnapped the complainant and the deceased persons. The complainant left the accused persons in the company of the accused persons and thereafter they were never seen. Here the onus was upon the accused persons to explain their presence at that time as well as the fate of the deceased persons. The circumstances of last seen is also indicating against the accused persons. The last seen theory comes into the play where the deceased persons were seen alive last time in the company of the accused persons. The circumstances that the accused 52 persons were with the deceased and was last seen together can be treated as one of the circumstances in the chain of circumstances to prove the guilt. It has been held in the catena of judgments that mere fact that there is no evidence to show that the accused actually assaulted the victims may not be of any consequence . In such a case, the accused is obliged to furnish an explanation in defence as to where he was during the relevant time and when he parted company with the deceased. The circumstances of last seen also thus prove the missing link in the chain of circumstances.
76. As I have discussed above, besides the recovery of dead bodies and identification of the same by the complainant, the accused persons have also failed to place any plausible defence. The defence witnesses produced by the accused are not reliable. The name of none of these witnesses appear in the panchnama. The defence placed by the accused persons is contradictory, afterthought and unreliable. In their statements recorded under section 313 of Cr. P. C., accused persons stated that they have been implicated falsely as a case was lodged against son of the 53 complainant. This defence seems to be totally counter production. Rather this fact goes against the accused persons. In this regard, some dates are very important. On 07.07.1999, the daughter of Tara Shanker namely Usha reported missing. On 08.07.1999, wife of Tara Shanker lodged a report in this regard, suspecting son of the complainant.
77. On 11.07.1999, complainant, his wife and son were kidnapped. On 21.07.1999, two dead bodies are recovered. It is also worthwhile to mention here that daughter of Tara Shanker was recovered from the possession of accused Ranjit son of Kishori Shah on 24.07.1999. It seems that accused persons in furtherance of common intention, first kidnapped the complainant, his wife and son and thereafter, when they could not recover the daughter of accused Tara Shanker, they murdered wife and son of the complainant. It is a classic case of taking revenge for the family pride. The authorities cited by the learned counsel for the accused are respectfully distinguished on the facts and circumstances of the case.
78. Prosecution has led cogent and credit worthy evidence, 54 so as to successfully prove their case against the accused persons. It has also been proved on record that accused persons after committing the murder of Sita Devi and Pradeep threw the dead bodies in the well and therefore caused disappearance of evidence. Hence, accused persons are held guilty and convicted for the offence punishable under section 302/364/201/34 of IPC. ANNOUNCED IN THE OPEN COURT TODAY ON 09.01.2008.
(DINESH KUMAR SHARMA) ADDITIONAL DISTT. & SESSIONS JUDGE, DELHI.
5509.01.2008.
Present: Ms. Alka Goel, learned APP for the State.
Accused all three produced from JC.
Vide my judgment announced of even date on separate sheets, accused persons have been convicted for the offence punishable under section 302/364/201/34 of IPC.
Now to come up for orders on sentence on 14.01.2008.
Accused Jai Singh has moved an application for producing the cloth pullanda. Since the judgment has already been announced, hence the application is dismissed.
(DINESH KR. SHARMA) ASJ/DELHI 09.01.2008.
56IN THE COURT OF SH. DINESH KUMAR SHARMA, ASJ, DELHI.
SESSION CASE NO. 47/07.
FIR NO. 404/99.
PS MODEL TOWN.
UNDER SECTION 302/364/342/201 OF IPC.
STATE VERSUS
1. TARA SHANKAR, S/O SAHEB SINGH, R/O A-137, MAUJI WALA BAGH, AZADPUR, DELHI.
2.SHAMBHU DAYAL @ BHOLA, S/O REWATI SINGH, R/O A-87, MAUJIWALA BAGH, DELHI.
3.JAI SINGH @ GUDDU, R/O VILLAGE GARA, DISTRICT AGRA, (U.P.)
4. KOMAL S/O BANWARI LAL, R/O VILLAGE GOTPURA, PS KARAIT, DISTRICT MAINPURI, (U.P.) (PROCLAIMED OFFENDER)
5. SRIKISHAN, S/O JHAMMAN, 57 R/O MAHARISHI VALMIKI MANDIR, R.B.T.B. HOSPITAL, KINGSWAY CAMP, PS MUKHERJEE NAGAR, DELHI. (PROCLAIMED OFFENDER.) ORDER ON SENTENCE:-
Present : Ms Alka Goel, learned APP for the state.
All accused produced from J.C. Sh. B.S. Choudhery, counsel for accused persons. Ms Rashmi Singh, counsel for the complainant.
1. Learned APP for the state has submitted that the accused persons committed cold blooded Murder of two persons merely on the suspicion that son of the complainant had taken away the daughter of accused Tara Shankar.
2. Learned APP has further submitted that the accused persons may be given maximum punishment i.e. capital punishment under section 302 IPC.
3. On the other hand, Sh B. S. Choudhery, learned counsel for the accused has submitted that the present case does not fall in the category of the rarest of the rare cases and , therefore, capital punishment may not be awarded in this case.
4. It has been submitted that it does not fall within the ambit of Judgment Machi Singh Vs. State of Punjab and Sucha Singh Vs. State of Haryana.
5. It has also been submitted that all the accused persons are having minor children and lots of 58 responsibilities are on their shoulders , therefore, lenient view may be taken.
6. I have heard the submissions and perused the record.
7. Accused persons have been convicted for the offence under section 302/364/201/34 IPC.
8. Accused Tara Shankar is aged around 52 years. He is having five daughters. Accused Tara Shankar has stated that he had married only one daughter and remaining four are yet to be married. Accused Tara Shankar states that he is sole bread earner of his family.
9. Accused Jai Singh is around 43 years of age. He states that he has four minor children. It has also been submitted that the eldest daughter is of marriageable age . A prayer for lenient view has been made.
10. Accused Shambhu Dayal is around 40 years of age.
Accused Shambhu Dayal has one minor daughter.
11. Learned counsel for the accused has submitted at bar that they are not the previous convicts.
12. I have considered the submissions.
13. I consider that the present case does not fall witin the ambit of the rarest of the rare cases. In these circumstances and the facts and circumstances of the case, I consider that accused persons are convicted for the offence punishable under section 302 IPC, accused persons 59 are awarded imprisonment of life along with a fine of Rs.
2,000/- each and in default SI for one year shall be in the ends of justice.
14. For the offence under section 364 IPC, accused persons are awarded RI for 10 years and a fine of Rs. 2,000/- each and in default SI for one month.
15. For the offence under section 201 IPC, accused persons are awarded SI for five years and a fine of Rs. 1,000/- each and in default SI for six months. All the sentences shall run concurrently. Benefit under section 428 Cr.P.C. be given to the accused persons. Sentence already undergone be set off against the imprisonment.
16. Copy of the judgment and order on sentence be given dasti to all the accused persons.
ANNOUNCED IN THE OPEN COURT TODAY ON 14.01.2008.
(DINESH KUMAR SHARMA) ADDITIONAL DISTT. & SESSIONS JUDGE, DELHI.