Delhi District Court
State vs . 1. Rajesh @ Sukai S/O Sh. Gullepasi on 28 May, 2010
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
SC No.119/09
FIR No.213/06
U/s 302/392/411/34 IPC
PS Kalkaji
State Vs. 1. Rajesh @ Sukai s/o Sh. Gullepasi
2. Hansu s/o Sh Ram Prasad
3. Pushpa w/o Late Sh Keshav Ram
Challan filed on : 03.06.06
Received by Fast Track Court on:10.11.09
Reserved for Order on : 21.05.2010
Date of Pronouncement : 28.05.2010
JUDGMENT
Briefly stated the facts of the prosecution case are that on 07.03.06 on receipt of DD no.21A copy of which is Ex.PW4/A, Insp. Sanjeev Solanki alongwith Ct. Kishan Singh reached at G-23B Kalkaji where Anil Kapur, Ashwani Chaudhary and Permanand were present. ACP Ranbir Singh also reached there. One Lady aged about 55 to 60 years was lying dead on the floor in the kitchen of the house and ligature marks were on the her neck. Sh. Anil Kapur husband of deceased Gulshan Kapur got recorded his statement Ex.PW6/A in which he has alleged that he is owner of factory E-214 Okhla Ph.III. On 6.3.06 he had withdrawn Rs.80,000/- from bank to disburse the pay to his employees. But the salary could not be disbursed on that date and he brought the cash with him to his home. On 7.3.06 he alongwith his servant Abbal Singh went to the factory at about 9.30/9.45 a.m and also carried the cash with him. His wife Gulshan State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 1 of 41 Kapur was alone at home. He disbursed the pay to his employees. AT about 6.30/6.45 p.m he made a telephone call to his home but it was not picked up. He thought that his telephone has got out of order. So, he telephoned at the number of his neighbour Parmanand Aswani who lives in G-22B and asked him go to his home and see because no one is picking up the phone. After a while Parmanand telephoned him and told him that front door of the house is closed from inside and despite ringing the door bell none came out but back side door is open. He immediately rushed to his house and saw that the front door was bolted from inside and back door which used to be closed is open. He entered the house from back door and found his wife Smt. Gulshan Kapoor lying on floor in the kitchen in dead condition. He noticed some injury on her neck. He found almirah of his wife open. The wearing ornaments of his wife i.e. tops, neck chain, ring and karas(bangles) were found missing. He suspects that someone has murdered his wife and robbed his house On this statement Investigating Officer made his endorsement Ex.PW23/A on the basis of which the present case was registered vide FIR no.213/06. In supplementary statement, complainant suspected the hand of his old servant Suresh in the commission of this offence. The further investigation was done and accused persons were arrested. After completing the investigation the accused persons were challaned to the court.
2. This case being triable by the court of session, after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 11.07.06.
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3. The charge against the accused Rajesh @ Sukai has been framed u/s 392/302 IPC on 13.9.06 and accused Hansu and Pushpa has also been charged u/s 411 IPC by Sh VK Bansal, Ld. ASJ to which the accused persons pleaded not guilty and claimed trial.
4. The prosecution in all has examined as many as 23 witnesses.
5. The evidence against the accused persons were put to them in their statements recorded u/s 313 Cr.P.C in which they have pleaded their innocence and deposed that they have been falsely implicated in this case. Thereafter the case was fixed for final arguments.
6. I have heard the Ld.counsel for the accused as well as Ld.APP for the State and perused the testimonies of all the PWS and exhibited documents carefully.
7. In view of the arguments advanced by the Ld.APP and ld.counsel on behalf of the accused I have perused the testimonies of all the PWS.
8. PW1 P.R.Aswani has deposed that on 7.3.06 at about 6.30 or 6.35 p.m he received telephone call from Anil Kapoor from his factory who stated to him that he is making telephone at his house but nobody is responding and requested him to go and check as to whether his wife is there or not. He went to his house and found the door State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 3 of 41 bolted from inside. He gave call bell and also called Bhabiji, bhabiji but nobody responded. He went backside of his house and found back grill door bolted from outside and inner door was little open. He went inside the house and saw Mr. Gulshan Kapoor lying dead on the floor of the kitchen. He also noticed bed sheet and other articles lying scattered. He came back to his house and gave a call to Mr. Anil Kapoor and requested him to come immediately. Anil Kapoor reached his house and police was informed. Police came and inspected the place. Next day post mortem was got conducted and he received the dead body vide receipt Ex.PW1/A.
9. PW2 HC Ram Pal has deposed that on 7.3.06 he clicked the scene of crime from various angles at the direction of Insp. Ranbir Singh. He proved 12 negatives Ex.PW2/1 to 12 and 11 photographs Ex.PW2/12 to 23.
10. PW3 SI Vinod Pal is also the witness from crime team and at his instruction photographs were taken. He further stated that chance prints were also lifted. He prepared his report Ex.PW3/A.
11. PW4 HC Raj Pal is the Duty Officer who recorded the FIR of this case as Ex.PW4/A. He also recorded DD no.21A copy of which is Ex.PW4/B.
12. PW5 Ashwani Chaudhary has deposed that on 7.3.06 his friend Vimal Kumar asked him to reach at the house of Anil Kapoor and when he reached there he found dead body of Smt. Gulshan State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 4 of 41 Kapoor lying in the kitchen. Vimal Kumar, Parmanand and other 20/25 persons were already present there. From mobile no. 9811279094 call was made at no.100 and police came.
13. PW6 Anil Kapoor is the husband of deceased and he has deposed in his testimony that he stated about disbursing the pay to his employees on 7.3.06 and that in the evening he made call to his home but none respondent. He further deposed that he made call to his neighbour Parmanand who informed him that the condition of his wife is not good and he rushed to his house but before that he called up Vimal Kumar to rush to his house. When he reached in the house he found dead body of his wife lying in the kitchen. No jewellery items were on her body and house articles were lying scattered. His statement Ex.PW6/A was recorded by the police. The dead body was sent for post mortem. He found ornaments of his wife missing from locker. He handed over the receipt of jewellery to the police which were seized vide memo ex.PW6/B and receipt are Ex.PW6/C & D. He pointed out towards accused Rajesh that he and younger brother of his servant Suresh used to sit in the park in front of his house. He identified the missing articles of his wife. The kara is Ex.P1, two bangles are Ex.P2, four bangles are Ex.P3, three pairs of ear tops are Ex.P4, necklace is Ex.P5, 3 rings are Ex.P6, two big silver coins are Ex.P7 and four small coins are Ex.P8. He also identified two golden colour bangles Ex.P9, chain with goddess pendent of Durga Ex.P10, pair of ear rings Ex>P11 and a rig as Ex.P12, bichuwas Ex.P13, one shawl, one suit and undergarments Ex.P14.
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14. PW7 Vimal Kumar has deposed that on 7.3.06 at about 7.05 p.m he received call from Anil Kapur who told him to see the matter as his wife was not picking up the phone. He went at the house of Anil Kapoor and found front door closed and then he went at the back sdie and found it open. Mr.Ashwani was present there and they both saw wife of Anil Kapoor lying dead in kitchen. He telephoned his friend Ashwani Chaudhary who came and made telephone at no.100.
15. PW8 Anil Kumar has deposed that he is running a jewellery shop under the name and style of Rajdhani Jewellers Pvt. Ltd. He has stated that Mrs Anil Kapoor had purchase one pair of kada vide receipt Ex.WP6/C.The photocopy of bill is Ex.PW6/B.
16. PW9 Manoj has deposed that on 7.3.06 he had gone to a shop in front of his house at G-31 for repair of his AC and when he was returning back at about 11.15 a.m alognwith mechanic,he saw the servant of Mrs. Kapoor taling with her at the gate of the house. Chotu was earlier expelled from the employment by Mrs.Kapoor and he thought that he had again been employed. At about 11.30 p.m when he was returning he saw many persons standing outside the house of Mrs. Kapoor and came to know that Mrs.Kapoor has been murdered. He can identify accused Suresh @ Chhotu.
17. PW10 ASI Anoop Kumar Singh has reached at G-23B Kalkaji and searched for chance prints and he lifted four chance prints. He prepared report which is Ex.PW10/A. State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 6 of 41
18. PW11 Dr. Chitranjan Behra has deposed that on 1.3.06 he conducted the post mortem of deceased Gulshan Kapur and prepared post mortem report which is Ex.PW11/A.
19. PW12 Sh Sanjeev Kumar Ld. CMM, has stated that he has not conducted the TIP in this case.
20. PW13 Sh Sanjeev Kumar, Ld. MM has conducted the TIP of case property and TIP proceedings are Ex.PW13/B.
21. PW14 L/Ct Alka has deposed that on 24.3.06 accused Sukai took the police party to JJ Camp, Giri Nagar, Jhuggi no.88 where one lady Pushpa was standing and Sukai told that ear tops which he looted had been sold to Pushpa for Rs.200/-. She handed over the ear rings to IO and same were seized vide memo Ex.PW14/A. She further deposed that accused Pushpa was arrested vide memo Ex.PW14/B and her personal search was conducted vide memo Ex.PW14/C. She identified the tops as Ex.PW15.
22. PW15 HC Arjun has deposed that on 11.03.06 he went to Gonda, UP . Inspector Sunder Lal received information that Sukai and Suresh are seen in village Gathi Manji, the village of Sukai. They reached there and came to know that Sukai had gone to the house of his Aunt (Bua). Aunt of Sukai told them that he had gone with Suresh. Daughter in law of Bua of Sukai handed over the photograph in which Sukai and his brother in law were visible. They went to the village of Suresh and it was told to them and Sukai, Suresh, Ram Babu and State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 7 of 41 Sanjeevan were seen in front of the school and they were trying to escape to Nepal from Raigarganj bus stand. Police team reached at Raigarganj bus stand and after waiting for considerable time four persons came and face of one person was similar to one visible in the photograph. All the four persons were apprehended and interrogated. Disclosure statement of accused Suresh was recorded which is Ex.PW15/A. From accused Sukai one chain with locket which was robbed in the incident was recovered and it was seized vide memo Ex.PW15/B. From accused Suresh one bangle was recovered which was seized vide memo Ex.PW15/C. Accused Sukai was interrogated and made confession about commission of crime FIR no.77/06. They came to Delhi with accused Suresh, Sanjeevan and Sukai but Ram Babu succeeded in fleeing. Sukai was arrested vide memo Ex.PW15/D and his personal search was conducted vide memo Ex.PW15/E. He identified the chain recovered from accused Sukai as Ex.P10.
23. PW16 SI Mahesh Kumar has prepared the scaled site place which is Ex.PW16/A.
24. PW17 SI Arun Dev Nehra is the witness who had gone to District Gonda in search of accused Suresh and reached in the village of Suresh where they came to know that Suresh had gone to the village of Sukai where they came to know that Sukai had gone to the house of his Bua at Malgoorpur where daughter in law of his bua told them about their coming and handed over photograph of Sukai alongwith her husband Hashmu who stay in Delhi and does not work which was seized in case FIR no. 77/06. He further deposed that they came to State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 8 of 41 know about seeing of accused near school. On the information from one person they reached at bus stand Ragerganj from where four persons Suresh, Ram Babu, Sanjeev and Rajesh were apprehended. Accused Rajesh and Suresh were arrested and their disclosure statements were recorded, copy of disclosure statement is Ex.PW17/A and of Suresh is Ex.PW15/A. He further deposed about arrest of accused Sukai @Rajesh and recovery of one gold chain from accused Rajesh and two gold bangles from accused Suresh. Both the accused have pointed out the place of incident vide memo Ex.PW17/B and Ex.PW17/X.
25. PW18 Ct. Kishan Singh has deposed that he handed over DD no.21A to SI Sanjeev Kumar and went with him to G-23B Kalkaji were many persons where gathered. In the kitchen on ground floor a dead body of one elderly woman was lying and one wooden almirah was found open. IO recorded the statement of Anil Kapoor, made his endorsement and and he got the case registered. He got the dead body preserved. After post mortem, dead body was handed over to Anil Kapoor for last rites. Doctor handed over sealed parcels containing clothings of deceased, ornaments of the lady, blood of deceased which were seized vide memo Ex.PW18/A.
26. PW19 HC Surender Kumar has handed over the copies of FIR to Ilaqua MM and Sr. Police officials.
27. PW20 HC Naresh Kumar has deposed that Ct.Kishan handed over sealed pullanda to Insp.Ravir on 8.3.06. He further State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 9 of 41 deposed that on 14.3.06 he alongwith SI Sanjeev Solanki and Insp.Ranvir Singh went to Okhla Subzi Mandi where accused pointed out one Hansu to whom he sold one gold ring and gold ring was recovered from his front pocket of the shirt. The same was seized vide memo Ex.PW20//A. Accused Hansu was arrested vide memo Ex.PW20/B and his personal search was conducted vide memo Ex.PW20/C. He was interrogated and his disclosure statement was recorded which is Ex.PW20/D.
28. PW21 Insp.Sunder Lal has deposed that on13.3.06 he was investigating case FIR no.77/06 u/s 302 IPC and reached in district Gonda where SI Sanjeev was already there and he came to know that accused Sukai @ Rajesh was involved in both the cases. He deposed about going to the village of Suresh and then to the village of Rajesh @ Sukai. He further deposed about going to the house of aunt of accused Rajesh @ Sukai who disclosed that they had come but had gone on the pretext that they will go to Nepal and handed over passport size photograph. ON 13.3.06 village people of village Pure Dhal disclosed them that four people were talking to each other to go to Nepal from Ragerganj Bus Stand and they apprehended all the four boys from there. He recorded the disclosure statement of Rajesh @ Sukai in FIR no.77/06 as well as in the present case Ex.PW17/A. One gold chain was recovered from the neck of accused Rajesh @ Sukai
29. PW22 Insp.Sanjeev Solanki and PW23 ACP Ranbir Singh are the Investigation Officers and have deposed that on receipt of DD no.21A Ex.PW4/B they reached at G-23B and saw one lady lying State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 10 of 41 dead in kitchen and also found almirah opened and belongings scattered. SHO Insp.Ranbir Singh recorded the statement of Anil Kapoor Ex.PW6/A, made his endorsement Ex.PW23/A and got the case registered through Ct. Kishan Kumar. Crime team was summoned and spot was got photographed. PW22 has stated that on the same day they came to know that Suresh @ Babu who was working in the house was seen by locality people with two other boys in the noon time and Suresh had left the job from this house. Thereafter Insp. Ranbir Singh formed separate team for searching the assailants. He alongwith his team went to PS Umari on 9.3.06 from where one constable accompanied them to the house of accused Suresh and they came to know that accused Suresh @ babu was seen with his brother in law/jija Rajesh@ Sukai and went to village of Rajesh but they could not find them there. He further deposed about coming of another team of police officials on 11.03.06. On 12.3.06 during search they came to know that Rajesh @ Sukai took Suresh to his aunt/bua's house in village Mangloorpur where they came to know that they had left that place and one lady handed over one passport size photograph of Rajesh and Hansu which was taken in possession vide FIR no.77/06. He further deposed that on 13.3.06 they came to know about presence of accused persons near school and that they were planning to Nepal via Rangarganj bus stand. At the bus stand four boy were apprehended as one of the boy visible in the photograph was the same boy. He interrogated accused Suresh and recorded his disclosure statement Ex.PW5/A and disclosure statement of Rajesh @ Sukai was also recorded which is Ex.PW17/A. One gold chain with locket of Mata Vaishno Devi was recovered from his neck and it was State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 11 of 41 seized vide memo Ex.PW15/B. One paid of lady's gold bangle kept in a bag was recovered from accused Suresh which was seized vide memo Ex.PW15/C. He further deposed about arrest, personal search and pointing out the place of incident by both the accused. He further stated that on 14.3.06 accused Rajesh took the police party to Jhuggies Okhla Subzi Mandi and pointed out accused Hansu who was arrested vide memo Ex.PW20/B and his personal search was conducted vide memo Ex.PW20/C and he was interrogated and his disclosure statement is Ex.PW20/D. Thereafter accused handed over one lady's ring which was seized vide memo Ex.PW20/A. On 23.3.06 accused got recovered robbed jewellery from his house kept in a blue colour purse of Rajdhani Jewellers H-6/B Kalkaji new Delhi i.e. three gold rings, three pairs of each tops, one gold necklace, one pair of gold bangles, six silver coins, four bangles of gold polish which were seized vide memo Ex.PW22/D. He further deposed that on 24.4.06 accused took them to the house of Pushpa in Giri Nagar where she was arrested vide memo Ex.PW14/B and her personal search was conducted vide memo ex.PW14/C. Accused Pushpa handed over heart type design of gold ear tops and she disclosed that accused had sold the same to her for RS.200/- which were seized vide memo Ex.PW14/A. He identified the case property.
30. PW23 ACP Ranbir Singh, the then Inspector, has deposed that he recorded the statement of Anil Kapoor and got the case registered. He prepared site plan Ex.PW23/B. He conducted the inquest proceedings and filled up form no. 25.35 Ex.PW23/D and prepared brief facts Ex.PW23/E. He further stated about arrest of State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 12 of 41 accused Hasnu and recovery of gold ring from him. He got conducted the TIP of case property vide proceedings Ex.PW13/B. He seized the bills of ornaments Ex.PW6/B. The bills are Ex.PW6/C and D. He obtained the result of finger print bureau and also obtained the post mortem report Ex.PW11/A. He got prepared the scaled site plan Ex.PW16/A. He identified the gold ring recovered from accused Hasnu.
31. In the overall analysis of the testimonies of all the witnesses it is revealed that PW6 Anil Kapoor is the husband of deceased Gulshan Kapoor, PW1 P.R Aswani is the neighbour of PW6, PW5 Ashwani Chaudhary is the friend of Vimal Kapoor and he made call to the police, PW7 Vimal Kumar went to the house of Anil Kapoor at his request, PW8 Manoj is the public witness and resident of the area and remaining witnesses are police officials. In this case no one has seen the accused committed the crime. So, this case depends on circumstantial evidence. It is well settled law that observed by the Apex court in Tanviben Pankaj Kumar Devtia Vs. State of Gujrat 1997(2) CC cases SC 98 that court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof for some time unconsciously it may happen to be a short step between moral certainty and legal proof -it has been indicated by the court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions. Our Hon'ble High court of Delhi in Raj Mani Vs. State has held that where the evidence of last seen together specially considering the evidence of the State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 13 of 41 PWS cannot be said to prove with reasonable certainty that the circumstances of last seen together has been established beyond a shadow of doubt by the prosecution, the state of circumstances of last seen together being not free from suspicion. No finding with regard to the proof of circumstances of last seen together can be recorded. So, in this case first the prosecution has to establish the presence of accused Rajesh @ Sukai at the spot. PW1 P.R Aswani who is the neighbour of PW6 Anil Kapoor had gone to his house at his request and found the house bolted from inside. The he went at the back of the house and saw back grill door bolted from outside. He went inside and saw Mrs. Gulshan Kapor lying dead and articles of the house were lying scattered. He called up PW6 Anil Kapoor. PW6 Anil Kapoor who is the husband of deceased Gulshan has stated that he went to his factory in the morning and after disbursing salary of employees on 7.3.2006 he made telephone call to his wife at about 4 or 4.30 p.m but non responded. He deposed the version of PW1 PR Aswani that he asked PW1 to go to his house and see as no one is responding.PW6 has further deposed the version of PW1 that he informed him that condition of his wife is not good. Thereafter PW6 called up Vimal Kumar. PW7 Vimal Kumar has corroborated the version of PW6 in this respect that he asked him to see at his house and when he went there he found Mrs. Gulshan lying dead in the kitchen. PW7 further called up his friend Ashwani Chaudhary. PW5 Ashwani Chaudhary has also corroborated the version of PW7 that he called him up and he reached at the house of Anil Kapoor and he found Mrs. Kapoor lying dead in the kitchen. From his mobile be called up the police at no. 100. PW6 Anil Kapoor has further stated that he reached at his house at State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 14 of 41 about 6.30 p.m and found his wife lying dead in the kitchen and articles were lying scattered. Police recorded his statement Ex.PW6/A. He identified the dead body of his wife. No jewellery items were there on the body of his wife which she used to wear except bichuwas in her feet. During post mortem, doctor found one bangle in the arms of his wife. He found mangle sutra, 4 kare, rings, ear rings missing from his house. He even handed over the receipt of these ornaments. He has pointed out towards accused Rajesh that he and younger brother of his servant Suresh used to sit in the park in front of his house. But he has not stated that he had seen them sitting in the park on the day of incident. I have also perused the cross examination of these witnesses. In cross examination PW1 has stated that passerby go by the road in the front side of the house of Anil Kapor. He cannot tell whether there was any rope in the kitchen or not. He cannot tell if the accused is involved in this incident or not. On perusal of his cross examination it is revealed that no suggestion has been put by the Ld. defence counsel that he did not go to the house of Anil Kapoor or Anil Kapoor did not make any call to him to go to his house. PW7 Vimal Kumar has not been cross examined and PW5 has stated that Anil Kapoor is his uncle. He did not enter the place where the dead body was lying. He denied the suggestion that Gulshan Kapoor has committed suicide and that Gulshan Kapoor used to quarrel with Anil Kapoor regarding money matter. In cross examination PW6 has stated that he used to disburse the salary on 7th of each month. He made 5/6 calls to his wife. His wife was not suffering from any type of illness. He only noticed some mark on the neck of his wife. His wife was lying with her face upward on the floor of the kitchen. There was no dispute between him State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 15 of 41 and his wife about money. He denied the suggestion that his wife had committed suicide. Nothing could be extracted from the above cross examinations by the Ld. defence counsel. PW9 Manoj is the resident of the locality and residing at G-228 Kalkaji, New Delhi. He has stated that on 7.3.06 he had gone to a shop in front of his house at G-31 for repair of his A.C and when he was returning back at about 11.15 a.m alongwith mechanics, he saw the servant of Mrs. Anil Kapoor talking with her at the gate of the house. Chhotu was earlier expelled from the employment and he thought that he had been employed again.In the night at about 11.30 p.m he saw many persons standing outside the house of Mrs.Kapoor and he came to know about murder. He can identify Suresh @ Chhotu if shown to him(Accused is facing trial before juvenile court). I have also perused his cross examination wherein he has stated that his shop is situated after two houses from the house of Mrs. Kapoor. He had not heard the conversation between Mrs. Kapoor and Suresh @ Chhotu. PW9 Manoj is the witness of last seen in this case. From his deposition it is crystal clear that on 7.3.06 he had seen accused Suresh @ Chhotu (facing trial before juvenile court) in the company of Mrs. Gulshan Kapoor. He had seen both Mrs. Kapoor and Suresh @ Chhotu (juvenile) together at the house of Mrs. Kapoor and thereafter she was found murdered at her house. This witness PW9 has not deposed that present accused Rajesh @ Sukai was also with him at that time or that he had also seen one more boy with accused Suresh (juvenile) at that time. Only in the testimony of PW6 Anil Kapoor it has come that accused Rajesh and younger brother of his servant Suresh used to sit in the park in front of his house. But he has not stated that he had seen them sitting on the State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 16 of 41 alleged day of incident in the park in front of his house. So, accused Rajesh @ Sukai has not been seen in the accompany of Mrs. Kapoor at any point of time and prosecution could not prove the presence of accused at the house of Mrs.Gulshan Kapoor.
32. PW2 HC Ram Pal has clicked photographs on the direction of IO, negatives of which are Ex.PW2/1 to 12 and photographs are Ex.PW2/13 to Ex.PW2/23. His cross examination is quite formal. PW3 SI Vinod Pal has corroborated the version of PW2 that photographs were taken at his instance. He has also stated that finger chance prints were taken from the spot. PW10 ASI Anoop Kumar is the witness who lifted four chance prints and sent the same to Finger Print Bureau. His report is Ex.PW10/A. In cross examination PW3 has stated that there were injuries mark on the neck. There was no weapon of offence at the scene of crime. PW22 and PW23 who are IO in this case have also deposed about calling the photographer and clicking the photographs. PW23 has also obtained the result of finger print bureau. I have also perused the said result. On perusal of the file it is revealed that only photocopy of the said result is available on file. It may be that the original has been placed on juvenile court file. No witness has been examined by the prosecution to prove this report. However, it has been signed by Director.So, it is admissible in evidence u/s 293 Cr.P.C. On perusal of the report it is revealed that specimen finger print slips of accused Rajesh @ Sukai and Suresh @ Aasu were sent for comparison. The result of examination is as under:-
1. Chance print marked Q3 is identical with right middle State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 17 of 41 finger impression on the finger impression slip of Suresh @ Asu s/o Mehi Lal (accused).
2 Chance print marked Q1 is no identifical with finger print of the persons mentioned at para 1 ©.
3. Chance print marked Q1 is partial print, hence it can not be searched on the record of the bureau.
4. Chance prints marked Q2 and Q4 are partial and smudged and do not disclose sufficient number of ridge details in their relative positions for comparison, hence they are unfit and no opinion can be given regarding these prints.
33. It is written on the face of the report that "Chance print mark Q3 is identical with the specimen rigid middle finger marked S1 on the finger impression slip of Suresh @ Babu s/o Mehilal". It is abundantly clear from the report that the finger prints of present accused Rajesh @ Sukai did not match with the chance prints lifted by the police from the house of deceased Gulshan Kapoor. So, the prosecution could not establish that the chance prints lifted by the police were of accused Rajesh @ Sukai.
34. PW4 HC Rajpal has recorded the FIR on the basis of rukka sent by Insp.Rajbir through Ct. Kishan. PW18 Ct. Kishan has stated that rukka was handed over to him by Insp.Ranbir and he got the case registered. PW23 ACP Ranbir has also stated that he handed over the rukka to Ct. Kishan for registration of the case. So,the copy of FIR has been proved successfully in this case. However, FIR is not a substantive piece of evidence. PW19 HC Surender Kumar has State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 18 of 41 delivered the copies of FIR to Ilaqua Magistrate and Senior Police Officials. He is a formal witness. PW23 ACP Ranbir Singh has stated that on 8.3.06 he got the post mortem conducted and filled up form no.25.35 Ex.PW23/D and prepared brief facts Ex.PW23/E. PW11 Dr. Chitranjan Behra has conducted the post mortem in this case. He has stated that deceased was wearing two golden chudi in hand and one chutki in each foot. He found five ante mortem injuries present over the body which are as under:-
1. Contusion of size 2.5x1 cm present over left side of neck, 4 cm lateral to the midline neck, 10 cm above the left mid clavicle and 3 cm below the anterior to left angle of mandible.
2. Abrasion of size .5x2 cm present over left side of neck, 3 cm below and lateral to injury no.1, carvilinear in shape.
3. Abrasion of size .5x2 cm present over left upper part of neck, 1 cm above the injury no.1.
4. Abrasion of size .5x.5 cm present over right side of the neck, 4 cm lateral to anterior midline neck, 7 cm below and anterior to right angle of mandible.
5. Abrasion of size 2x1 cm present over the left buttock.
On dissection of neck there was diffuse subcutaneous and muscle haemotoma present on left side of neck. Fracture of cornua of hyoid bone present associated with haemotoma. The post mortem report is Ex.PW11/A. I have also gone though the said report. As per the report, the cause of death has been opined as asphyxia as a result of throattling. PW6 Anil Kapur has stated that there was no jewellery items were on the body of his wife which she used to wear except Bichwas in feet but at the time of post mortem PW11 Dr. Chitranjan Behra has found two golden chudi in hands and one chutki in each State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 19 of 41 foot. PW6 has further stated that doctor found one bangle in the arm of his wife which was handed over to the police. No weapon of offence i.e. rope etc has been recovered in this case. IO in cross examination has admitted that he did not find any weapon of offence in the kitchen so he could not seize the same. He has further stated that there were ligature mark on the neck of dead body of Smt.Gulshan Kapoor but he could not find any clue whether it was finger or any rope during his course of investigation. So, IO has not conducted the investigation to find out as to whether the throatling was with rope or fingers. PW11 Dr. Chitranjan Behra has also not made it clear in post mortem report as to whether the throatling was with any rope or with hands. He has also not mentioned about finding any hand/finger marks on the neck.
35. PW15 HC Arjun has stated that he joined the investigation with SI Sanjeev Kumar and had gone to Gonda UP. PW21 has stated that they came to know that Suresh @ Babu who was working in the house was seen by some locality people alongwith two other boys in the noon time. There is no such evidence on file that accused Suresh @ Babu was seen with some other boys in the noon time. Only it has come in the evidence that accused Suresh @ Babu was seen at the house of deceased. PW21 further stated that raiding party formed by Insp.Ranbir Singh for searching the assailants. PW23 ACP Ranbir Singh has not corroborated the version of PW21 in this respect that he formed the raiding party and accompanied them to District Gonda UP. He has not stated even a single word about the investigation conducted in District Gonda UP. He has also not stated that he sent the raiding party to District Gonda UP. PW21 has further stated that they reached State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 20 of 41 on 9.3.06 to PS Umari and made DD entry in PS Umari and one constable accompanied them to the house of accused Suresh @ Babu in village Puredhal PS Umari. PW15 HC Arun has accompanied with PW21 to District Gonda UP. But he has not corroborated this version of PW21 regarding going to PS Umari and accompanying of Constable from there. Further no DD entry has been proved on file which was lodged in PS Umari by PW21. Even the constable who accompanied with PW15 and PW21 to the house of Suresh has not been named or examined in this case. PW21 has further stated that they came to know that Suresh was seen by villages with his brother in law Rajesh @ Sukai and he went to his village. They went there but could not find them. Thereafter he made telephone call to PS Kalkaji to send one more team to arrest accused Suresh and Rajesh. PW15 HC Arjun has accompanied PW21 to District Gonda and he has stated that Insp.Sunder Lal alongwith his team was sent to Gonda and Insp. Sunder Lal received information that Sukai and Suresh are seen in village Gathi Manji, the village of Sukai and thereafter they reached in the village of Sukai. PW15 was not with Insp.Sunder nor PW21 Insp.Sunder has disclosed any information to the team headed by PW22 SI Sanjeev. It is not understandable as to how he came to know that Insp.Sunder had received information about Sukai. On the other hand PW21 Insp.Sunder Lal has stated he was busy in the investigation of case FIR no. 77/06 us/ 302 IPC alongwith his team and reached Gonda UP where SI Sanjeev was already there where he came to know that accused Sukai @ Rajesh was also involved in both the cases alongwith Suresh @ Babu. So, as per the version of PW21 he came to know about involvement of accused after reaching Gonda and State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 21 of 41 not prior to that while as per PW15 Inps.Sunder was already aware about the same. PW15,17,21 &22 have stated that they had gone to the house of Bua of Rajesh where photograph of Suresh and Rajesh was handed over to them. They have further stated that they came to know that accused persons were seen near the school. PW17 has stated that they came to know from one person about this. But the said person has not been named in the list of witnesses nor his name has been disclosed in the examination in chief. It has further been stated that accused persons were trying to escape to Nepal from Raigarganj bus stand. But they were apprehended there. No recovery of ticket etc. has been made from the accused persons which shows that they were going to Nepal. Also no witness has been associated at the time of arrest of accused person while it is case of the prosecution that they were arrested from the bus stand where a number of public persons might be available. PW15,17 and 22 have stated that accused Suresh @ Babu disclosed regarding commission of crime at G-23B, kalkaji alongwith Rajesh @ Sukai, Ram Bhaley. It is well settled law that disclosure of one accused cannot be read against the other. PW17 has PW21 who are the witnesses of another case FIR no.77/06. PW17 has stated about disclosure statement of accused Rajesh @ Sukai Ex.PW17/A, his arrest memo Ex.PW15/D and personal search Ex.PW15/E. PW15 has stated that from Sukai one chain with locket was recovered and from Suresh one bangle was recovered which were seized vide memo Ex.PW15/B&C. He has stated that chain was of Kali Mata. PW17 has stated that one gold chain having one pendant of Mata Vaishno Devi was recovered from the neck of accused Sukai and two bangles were recovered from accused Suresh (juvenile). PW21 State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 22 of 41 has stated that one gold chain was recovered from the neck of accused Rajesh. PW22 has stated that one gold chain with locket of Mata Vaishno Devi was recovered from the neck of Rajesh and one pair of lady's gold bangle which were kept in a bag from accused Suresh @ Babu. Some witnesses have stated that the chain was with pendant and some have stated that it was a chain only. Some have stated that it was a locket of Kali Mata and some have stated that it was having locket of Mata Vaishno Devi. Also no witness has been examined at the time of this recovery effected from the accused Rajesh @ Sukai. I have also perused the cross examination of all these witnesses. PW15 HC Arjun in cross examination has admitted that complainant in his statement suspected only Suresh and none else. Police visited Gonda only on the statement of Complainant. It is correct that they had gone to Gonda in search of accused Suresh only. IO asked the public persons in Puredhal village to join the investigation but non agreed. He does not remember if IO had met the sarpanch or mukhiya of the village. He admitted that firstly they had gone to the village of Suresh. He made improvement in his statement that they had gone to the village of Sukai. He further admitted that when they went in the village of Suresh they were searching for Suresh only. It is correct that till that time only Suresh was suspect. First of all Sukai was apprehended on the basis of photograph. Accused persons were apprehended at 7 p.m and were not produced before the local magistrate. The disclosure statements were recorded at the bus stand. From the cross examination of PW15 it is crystal clear the the police team had gone to District Gonda UP only in search of accused Suresh and even till they reached in the house of accused Suresh they were searching only for accused State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 23 of 41 Suresh (juvenile). They were not having any information about involvement of accused Rajesh @ Sukai in this case. PW17 in cross examination has stated that he cannot tell the name of that village who told Insp.Sunder Lal that the accused persons were planning to flee away to Nepal. PW21 Insp.Sunder Lal has stated that he does not recollect the time but on 11.3.06 they reached Gonda UP in private vehicle and he does not recollect its make registration number. No village people gathered after seeing them there. After seeing the police party no villager came near to them at the time of arrest of accused. No arms was recovered from accused Rajesh @ Sukai at the time of his arrest. PW23 ACP Ranbir Singh has recorded the statement of complainant Anil Kapoor and got the case registered. He got the post mortem conducted. He also a witness to recoveries which will be discussed a bit later. In view of the evidence of the witnesses of investigation there are material contradictions in this case. The last seen is absent. The finger print of accused Rajesh @ Sukai could not match with the chance prints lifted by the Police from the spot. No weapon of offence has been recovered or produced in the court. PW11 Dr. Chitranjan Behra has not stated as to whether the deceased was strangulated by rope or hands. In case Law 1990 (1) CC Cass 250 (HC) it is stated in head note that:-
'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
'Sec.302 - Murder - Circumstantial Evidence - Its appreciation - No evidence on record to show that any one had seen the deceased in the company of the appellants at any time before the recovery of dead body - House of the appellant situates at some distances from the place of recovery of dead State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 24 of 41 body - No ground to hold the accused guilty for the commission of the crime'.
It is stated in Hasan Murtza Vs. State of Haryana, AIR 2002 Supreme Court 762 that:-
S.300 - Murder - Proof - Allegations that accused - husband on account of material discord committed murder of his wife by dousing her with petrol and setting her ablaze - eye witnesses, mother of deceased has made material improvements in her evidence to prove her presence in house of deceased - Fact that said eye witnesses suffered no injury in process of protecting her daughter from burning to death, further enhances the suspicion as to her presence at time of incident - No person other than said eye witness claims to have seen accused at the scene of occurrence - No incriminating evidence e.g any material like burns or even soot from the burning of body to which accused must have suffered standing close, was noticed in the person or the clothes of accused - Mere fact that accused is proved to be not a good husband or father would not ipso facto lead to conclusion that he would commit the murder in question - conviction of accused solely based on testimony of eye witness, not proper.
It is stated in Padala Veera Reddy Vs. State of A.P. (SCC pp.710- 11, Para 10) and in other catena of Judgments that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
'10. (1) the circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilty of the accused (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 25 of 41 with his innocence'.
It is further held that : -
'Criminal Trial - Circumstantial evidence - Held, on facts, circumstantial evidence not sufficient to conclusively establish guilty of accused persons - Conduct of the accused must be seen in its entirety - Mere suspicion not enough - Penal Code, 1860, Secs. 302/34 and Sec. 498A - Evidence Act, 1972, Sec. 8'.
'Evidence Act. 1972 - Sec.3 - 'Proved' - Conviction cannot be based on suspicion, however, strong it may be'.
In case Law (2007) 6 Supreme Court Cases 32, Sujoy Sen Vs. State of West Bengal it is stated in headnote that:-
'Criminal Trial - Circumstantial evidence - Link in the chain of circumstances - If established - On the testimony of the first informant and what was stated in the FIR, held, link in the chain of circumstances not established - conviction reversed, Penal Code, 1860 - Section 302'.
In case law (2006) 10 S.C.C 183, Sunny Kapoor Vs. State, it is stated in head note that :-
'Criminal trial - Circumstantial evidence - Guilt not established - Held, for proving guilt of an accused u/s 302, the prosecution must lead evidence to connect all links in a chain so as to point guilt of the accused alone and nobody else - In the instant case, evidence adduced clearly fell short of the requirement and hence conviction of appellant u/s 302/34 unsustainable'.
It is stated in Ramreddy Rajesh Khanna Reddy Vs. State of A.P (SCC P.181 para 26-27) that :-
'It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave it may, cannot be a substitute for a proof and the courts shall take State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 26 of 41 utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. The story of last seen theory, furthermore, 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. Even in such a case the courts should look for some corroboration'.
It is stated in Idrish Bhai Daudbhai Vs. State of Gujarat, 2005, CRI. L.J. 1422 that :
'Penal Code (45 of 1860), Ss. 34, 300 - Common intention - Development at spur of movement - Altercation between accused and deceased over land transaction - Appellant accused alleged to have given stick blow on head of deceased - Other accused inflicted injuries with sickle and knife - Absence of material on record to show pre-concert or pre-arranged plan - If appellant accused exhorted after injuries were completed - He cannot be held guilty of sharing common intention with other accused - And it was first person to inflict injuries it was unlikely for him to imagine that other accused would go back to their house and bring weapon and inflict injuries - Thus common intention was not developed even at spur of movement - In such case exhortation by itself would not constitute common intention
- Further absence of stick injury in inquest punchnama - Eye witnesses were also interested witnesses - Accused held entitled to benefit of doubt'.
36. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 27 of 41 the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In this case the motive was to commit robbery and as per the case of prosecution some gold ornaments were found missing from the house of PW6 Anil Kapoor which were belonging to his wife. He has not alleged that some cash has also been taken away by the robbers. It has come in the evidence of PW11 Dr. Chitranjan Behra that at the time of post mortem he found deceased wearing two golden chudi in hand and one chutki in each foot. It is crystal clear that the golden ornaments i.e. chudi/bangles which deceased was wearing remained in her hand and these have not been taken away by the culprits. So, it is a peculiar type of case in which allegedly the accused has taken away the gold ornaments kept in the house but they have not touched the wearing ornaments. Since accused Rajesh @ Sukai has not been seen in or around the house, motive to rob will not affect him in anyway. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that :-
'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete go-by given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.
State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 28 of 41
37. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the opinion that prosecution could not complete each and every chain of circumstances in this case without any reasonable doubt.
38. In this case some recoveries have been effected from accused Rajesh @ Sukai, Pushpa and Hasnu. The prosecution has examined PW8, PW13, PW14, PW20 and PW22 in this respect. PW8 Anil Gupta is the owner of jewellery shop and he has stated that Mrs. Anil Kapoor had purchased one pair of kada from him vide receipt Ex.PW6/C. PW13 Sh Sanjeev Kumar Ld. MM has conducted the TIP of the case property. The TIP proceedings are Ex.PW13/B. I have also perused the said TIP proceedings. As per TIP proceedings, the complainant had identified the case property belonging to his deceased wife. The same case property was recovered from accused Hansu, State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 29 of 41 Pushpa and Rajesh @ Sukai. The case property produced before the Ld. MM was one pair of gold kara, three rings gold colour, three pair of ear tops, one necklace gold colour, six silver coins, four bangles of gold, one ring, two ear tops, one bangle gold and one chain. As per the complaint Ex.PW6/A, complainant has stated that he will give the list of remaining robbed ornaments later on. PW14 Lady Ct. Alka has stated that accused Sukai took the police to JJ Camp Giri Nagar and told that the ear tops which he had looted, had sold to Pushpa for a sum of Rs.200/-. Pushpa took out the ear rings from her ear and handed over the same to IO which were seized vide memo Ex.PW14/A and she has further stated about her arrest and personal search. PW22 Insp.Sanjeev has also deposed in respect of recovery of ear tops from accused Pushpa. Only PW14 and PW22 has been examined by the prosecution in respect of recovery of ear tops from accused Pushpa and both have corroborated the version of each other in respect of the recovery of ear tops. I have also perused the cross examination of both PW14 and PW22. PW14 has stated that they had gone to the house of Pushpa in the morning time after 10 a.m. There were many other persons also when Sukai pointed out towards Pushpa. She cannot tell the number of persons present there. She does not know if IO had weighed the ear tops. IO did not hand over the ear tops to her. IO sealed the same. She denied the suggestion that nothing was seized from accused Pushpa. PW22 has also denied the suggestion that nothing was seized from accused Pushpa. It has been admitted by the PWS that there were many public persons present at the spot. Ld. Counsel has taken the plea that no public person has been joined at the time of recovery. But in this case recovery of robbed jewellery has State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 30 of 41 been effected and the same has been identified by complainant. PW20 HC Naresh has been examined by the prosecution in respect of recovery of gold ring effected from accused Hansu. PW20 has stated that accused Rajesh @ Sukai alongwith SI Sanjeev and Insp. Ranvir Singh went to Okhla Subzi Mandi where accused pointed out towards one person Hansu and stated that he had sold one gold ring to him and thereafter the said gold ring was recovered from his front pocket of the shirt which was seized vide memo Ex.PW20/A. PW23 ACP Ranbir Singh has also deposed about handing over of ring from front pocket by accused. PW22 Insp.Sanjeev Solanki has stated that accused handed over one lady's gold ring to Insp.Ranbir Singh from his working place as he was working for selling the water in bucket in Subzi Mandi. I have found some contradictions in the testimonies of witnesses adduced by the prosecution for recovery effected from accused Hasnu but they are of trivial nature and can be overlooked in view of the Judgement Asha @ Ashananad & Ors.etc. Vs. The State of Rajasthan, 1997 (2) CC Cases SC 155. PW22 in cross examination has stated that at that time the other hawkers were also available there. Insp.Ranbir asked them to join the investigation but they refused. Non-joining of public witnesses in this case would not affect the recovery because the recovered goods were duly identified by the complainant before the Ld.MM in TIP proceedings. PW22 Insp.Sanjeev Solanki has further stated that on 23.3.06 accused Rajesh @ Sukai got recovered jewellery from his house which were kept in a blue colour purse of Rajdhani Jeweller i.e. three gold rings, three pairs of ear tops of gold, one gold necklace, one pair of gold bangles, six silver coins and four bangles of gold polish. As per seizure memo State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 31 of 41 Ex.PW22/D , the said recovery has been effected from the village of accused in District Gonda, UP. It has come in evidence that one gold chain with locket has been recovered from accused Rajesh @ Sukai at the time of his arrest. The gold items recovered from him were duly identified by complainant as that of his deceased wife. No suggestion has been put to PW17 & 20 by Ld. defence counsel that accused nothing was recovered from accused Rajesh @ Sukai at the time of his arrest or that he was not arrested and his disclosure statement was not recorded. On perusal of the cross examination of PW22 Insp.Sanjeev Solanki who recovered gold jewellery from the house of accused Rajesh @ Sukai from his village in District Gonda it is revealed that PW22 has not been cross examined by the Ld. defence counsel regarding recoveries effected at his instance from his village. No single suggestion has been put to this witness by the Ld. defence counsel in this respect. So, his testimony remained unchallenged in this respect.
39. In view of my above discussions, I am of the opinion that the prosecution could not establish the complete chain of circumstances in this case while it is well settled principle of law that in a case of circumstantial evidence each and every circumstance has to be proved by the prosecution by leading legal, reliable and unimpeachable evidence. But I did not find any legal, reliable and unimpeachable evidence in this case. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving such chain of circumstantial evidence as would fasten the guilt on the accused Rajesh leaving no room for doubt. So, the prosecution has failed to State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 32 of 41 prove its case against accused Rajesh @ Sukai u/s 302/392 IPC. I therefore give the benefit of doubt to accused Rajesh @ Sukai and he is acquitted for the commission of offence punishable u/s 302/392 IPC.
40. However, the prosecution has led corroborative evidence in respect of recoveries and has been able to prove that a pair of ear tops has been recovered from accused Pushpa, a lady ring has been recovered from accused Hansu and one gold chain with locket alongwith three gold rings, three pairs of ear tops of gold, one gold necklace, one pair of gold bangles, six silver coins and four bangles of gold polish have been effected from accused Rajesh @ Sukai and the recoveries have been conclusively proved by the prosecution. So, I am of the opinion that the prosecution has been able to prove the charge u/s 411 IPC against all the three accused Rajesh @ Sukai, Hansu and Pushpa. I, therefore hold all the three accused persons Rajesh @ Sukai, Hansu and Pushpa guilty for the commission of offence punishable u/s 411/34 IPC and they are convicted thereunder. Accused Hansu and Pushpa are on bail. They be taken into custody and remanded to JC. File be consigned to Record Room. Announced in the open Court on 28.05.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 33 of 41 IN THE COURT OF SH.SURESH CHAND RAJAN ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT, (New Delhi & South East District) PATIALA HOUSE COURTS, NEW DELHI SC No.119/09 FIR No.213/06 U/s 302/392/411/34 IPC PS Kalkaji State Vs. 1. Rajesh @ Sukai s/o Sh. Gullepasi
2. Hansu s/o Sh Ram Prasad
3.Pushpa w/o Late Sh Keshav Ram ORDER ON THE POINT OF SENTENCE Accused Rajesh @ Sukai, Hansu and Pushpa have been held guilty for the commission of offence u/s 411/34 IPC and convicted thereunder.
2. I have heard the arguments on the point of sentence. During the course of arguments it has been submitted on behalf of accused/convict Rajesh @ Sukai that he is young boy of 27 years of age. He is unmarried. He has three sisters and five brothers. He has old aged parents. His brothers are agriculturist and his sisters are married. It has further been submitted that he has been languishing in jail for four years and two months.
3. It has been submitted on behalf of accused/convict Hansu that he is aged about 45 years. He has three daughters and one son. His daughters are aged about 17 years, 10 years and 12 years. He remained in jail in this case for 11 months.
4. It has been submitted on behalf of accused/convict Pushpa that she is widow aged about 40 years. She is working as maid. She remained in jail for 18 months. It has been submitted on behalf of all the accused that they are the first State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 34 of 41 offenders. There is no other case registered against them nor they are previous convicts. They belong to poor families. So, lenient view may kindly be taken against them.
5. Keeping in view the facts and circumstances of the case, all the three accused Rajesh @ Sukai, Hansu and Pushpa are ordered to undergo RI for One Year and to pay fine of Rs.1000/- each u/s 411/34 IPC and in default of payment of fine to further undergo SI for 15 days.
6. The benefit of sec. 428 Cr.P.C be given to the convicts. Copy of this order on the point of sentence and copy of Judgement be given to the convicts free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the Open Court on 31.05.2010.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track Court-New Delhi and South East District) NEW DELHI State Vs.Rajesh @ Sukai FIR no.213/06 Page No. 35 of 41