Delhi District Court
State vs Sachin (In Jc) on 3 January, 2017
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) / ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI SC No. : 19(I)/13 FIR No. : 400/2013 U/Sec. : 363/302/201 IPC PS : Gokal Puri Case ID : 44368/2015 State Versus Sachin (in JC) S/o Late Om Prakash R/o F-211, Gali No. 4, Ganga Vihar, Delhi Date of Institution : 16.12.2013 Date of reserving order : 04.10.2016 Date of Judgment : 03.01.2017 JUDGMENT
1. Sachin (Hereinafter referred to as 'the accused') was indicted for kidnapping Sahil, age 7 years and causing his death by strangulating his neck and slitting his throat and thereafter, concealing his dead body in a cooler in Hall at 1 st floor, Shiv Durga Temple, Gali No. 4, Ganga Vihar, Delhi-94 punishable under section 364, 302 and 201 of the Indian Penal Code, 1860 (In short 'IPC').
2. On 31.08.2013, PW-3 Sana, mother of Sahil lodged missing report Ex.PW3/A in PS Gokal Puri that her child Sahil was playing at about 11.00 a.m. in temple in front of her house and at about 12.00 noon, she went to the said temple but Sahil was not found playing there. She searched him but he was not found. She suspected that someone had enticed away her child FIR No. 400/2013 State Vs. Sachin Page No. 1 of 55
3. SI Gaurav Kumar made endorsement for registration of case and pursuant thereto, the case FIR Ex.PW14/B was registered under section 363 IPC on 31.08.2013 at 4.40 p.m. During investigation, SI Gaurav Kumar made efforts to trace Sahil.
4. On 02.09.2013 at 11.25 a.m., a PCR call was received in PS Gokal Puri through wireless operator vide DD No. 23A Ex.PW15/A that 'dead body of a child, age 4 years was lying on the roof of Shiv Durga Mandir, Gali No. 4, Ganga Vihar, Gokal Puri'. The said PCR call was assigned to SI Anuj Kumar who reached there and found a dead body of a boy aged 7-8 years in an unused cooler kept in a corner of the hall of 1 st floor of the said temple. The dead body was identified as that of Sahil. Therefore, SI Gaurav Kumar reached at the spot and conducted further investigation. He summoned the crime team. Crime team inspected the scene of crime and taken photographs. The dead body of Sahil was sent to Mortuary, GTB Hospital for post-mortem. He seized the cooler Ex.P5. He got the post-mortem on the dead body of Sahil conducted. He added section 302 and 201 IPC. Further investigation of the case was assigned to Insp. Jai Pal Singh.
5. During investigation, Insp. Jai Pal Singh interrogated Rajender Kumar, Priest of the said temple and his son Kapil. On the basis of their statements, the accused was interrogated. His disclosure statement Ex.PW17/A was recorded. Pursuant thereto, slipper Ex.P2 and topaz blade Ex.P3 were recovered.
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6. Insp. Jai Pal Singh, on the pointing out of the accused, recovered nada Ex.P1 from Jitender Singh, Proprietor of Ekta General Store, F-211, Gali No. 4, Ganga Vihar, Delhi. He recovered capri Ex.P4 from the house of the accused. He got potency test of the accused conducted. He got the statement of Rajender Prasad and Master Kapil Sharma recorded under section 164 of the Cr.P.C. He collected blood sample of the accused. He collected articles preserved by autopsy surgeon. He sent case exhibits to FSL for forensic examination.
7. According to the charge-sheet, on 31.08.2013 at about 11.00 - 11.15 a.m., Sahil was playing on the stair of the main gate of the temple. The accused was studying in the temple. The accused taken keys of the temple from Rajender Prasad Sharma on the pretext that he wanted to study for some time in the temple and he would close the temple. As usual, Rajender Prasad Sharma had given keys of the temple to the accused. The accused called Sahil inside the temple and taken him to 1st floor of the temple. He struck head of Sahil against the wall and thereafter, he strangulated his neck. The accused slit the throat of Sahil. He put the dead body in a cooler kept in one corner of the hall. Thereafter, he locked the temple. He kicked slippers of Sahil in a drain. He misguided Sana by stating that he had seen Sahil going towards nala and searched him.
8. On completion of investigation, the accused was charge-sheeted under section 302/363/201 IPC.
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9. The accused was charged under section 364, 302 and 201 IPC to which he pleaded not guilty and claimed trial.
10. The prosecution, in support of its case, examined 29 witnesses, as under:
(i) PW-1 Jitender Singh was the proprietor of 'Ekta General Store'.
(ii) PW-2 Rajender Prasad was the priest of Sri Shiv Durga Mandir.
(iii) PW-3 Sana was the complainant. She was mother of the deceased Sahil. She made complaint Ex.PW3/A. She identified dead body of Sahil. She was a witness to recovery of slipper Ex.P2 of the deceased Sahil.
(iv) PW-4 Javed was the father of the deceased Sahil.
(v) PW-5 Master Kapil Sharma was the son of priest of Sri Shiv Durga Mandir.
(vi) PW-6 Dr. Vishwajeet, Autopsy Surgeon conducted post-mortem on the dead body of the deceased Sahil.
He proved post-mortem report Ex.PW6/A. He proved subsequent opinion Ex.P6/B regarding the possibility of injuries with Topaz Blade.
(vii) PW-7 Dr. Anshu Mudgal, CMO, GTB Hospital conducted potency test of the accused vide MLC Ex.PW7/A.
(viii) PW-8 SI E.S. Yadav was In-charge, Crime Team. He inspected the scene of crime. He proved his report Ex.PW8/A.
(ix) PW-9 HC Shyam Lal was photographer, Crime Team. He taken 30 photographs of the scene of crime Ex.PW9/A-1 to Ex.PW9/A-30 and negatives whereof are Ex.PW9/A-31 to Ex.PW9/A-60.
(x) PW-10 Ct. Jai Kumar taken the dead body of deceased Sahil to Mortuary, GTB Hospital.
(xi) PW-11 HC Ashok Pal was In-charge, malkhana. He proved relevant entries in Reg. No. 19 Ex.PW11/A to Ex.PW11/D. He proved RC No. 155/21/13 Ex.PW11/E and acknowledgement Ex.PW11/F. FIR No. 400/2013 State Vs. Sachin Page No. 4 of 55
(xii) PW-12 Ct. Hazari Lal was parcel depositor. He deposited 10 sealed parcels alongwith sample seal in FSL, Rohini, Delhi.
(xiii) PW-13 Ct. Krishan Kumar accompanied Insp. Jai Pal Singh to GTB Hospital. He proved seizure memo of the blood sample and semen of the accused Ex.PW13/A and Ex.PW13/B respectively.
(xiv) PW-14 SI Arvind Kumar was the Duty Officer. He proved the case FIR Ex.PW14/B and endorsement Ex.PW14/C on the rukka.
(xv) PW-15 ASI R.P. Pandey was the Duty Officer. He proved DD No. 23A Ex.PW15/A regarding receipt of PCR call on 02.09.2013 at 11.25 a.m. (xvi) PW-16 Yunus was uncle of the deceased Sahil. He identified dead body of the deceased Sahil vide memo Ex.PW16/A. (xvii) PW-17 Ct. Sandeep Kumar was a recovery witness. He proved disclosure statement Ex.PW17/A, seizure memo Ex.PW17/C in respect of recovery of Topaz Blade Ex.P3. He proved seizure memo Ex.PW17/D in respect of capri of the accused Ex.P4. He proved seizure memo Ex.PW3/E in respect of slipper of the deceased Ex.P2. He proved seizure memo Ex.PW1/A in respect of nada Ex.P1 seized from Jitender Singh.
(xviii) PW-18 HC Ashok Pal was MHC (M). [He was examined as PW-11].
(xix) PW-19 L/Ct. Poonam, Channel Operator received PCR call at Extn. No. 154 on 02.09.2013 at 11.19 a.m. vide PCR Form Ex.PW19/A. (xx) PW-20 Dr. Sober Chaturvedi collected blood sample from the accused vide MLC Ex.PW20/A. (xxi) PW-21 Vipul made PCR call through his mobile No. 9999900913.
(xxii) PW-22 Rajesh Kumar was swachhta karamchari. He recovered slipper Ex.P2 from the drain just opposite to temple.
(xxiii) PW-23 SI Gaurav Kumar was the 1 st Investigating Officer. He recorded missing report Ex.PW3/A and made endorsement Ex.PW23/A. He made efforts to search Sahil. He prepared site plan with scale of the scene of crime Ex.PW23/F. He conducted initial investigation of the case.
FIR No. 400/2013 State Vs. Sachin Page No. 5 of 55 (xxiv) PW-24 Sh. Parshuram Singh was Asst. Director (Physics), FSL, Rohini, Delhi. He examined ligature material Ex.P6 and nada Ex.P1. He proved FSL (Physics) report Ex.PW24/A. (xxv) PW-25 Insp. Jaipal Singh was the Investigating Officer. He arrested the accused on 03.09.2013 at 12.30 p.m. vide memo Ex.PW23/G. He recovered one mobile phone 'Nokia' blue containing mobile No. 8285273094 in personal search of the accused vide memo Ex.PW23/H. He recorded disclosure statement Ex.PW17/A. Pursuant to disclosure statement, he effected recovery of Topaz Blade Ex.P3, capri of the accused Ex.P4, slipper of the deceased Ex.P2 and nada Ex.P1. He got the statements of Rajender Prasad and Master Kapil Sharma recorded under section 164 of the Cr.P.C. He sent case exhibits to FSL and obtained subsequent opinion from autopsy surgeon. He submitted charge-sheet against the accused.
(xxvi) PW-26 Insp. Mukesh Kumar Jain was the Draftsman, North-East, Delhi. He prepared site plan to scale Ex.PW26/A of the scene of crime.
(xxvii) PW-27 Sh. Dharmender Rana, Ld. MM-01, North-East, KKD Courts, Delhi recorded statements of Rajender Prasad and Master Kapil Sharma under section 164 of the Cr.P.C.
(xxviii) PW-28 Insp. Rambir Singh recorded statement of Rajesh Kumar, swachhta karamchari under section 161 of the Cr.P.C. and submitted supplementary charge-sheet.
(xxix) PW-29 Ms. Sunita Gupta, Senior Scientific Officer (Biology), FSL, Rohini, Delhi examined case exhibits. She proved serological reports Ex.PW29/A and Ex.PW29/B. She identified the case exhibits examined by her.
11. On conclusion of prosecution evidence, the accused was examined under section 313 of the Cr.P.C. wherein he pleaded innocence and claimed false implication by the police in order to solve a blind case.
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12. In defence evidence, the accused examined his elder brother Rajan Kumar as DW-1, Dhyan Singh, LDC, Nehru Boys Hostel, Sanskar Ashram Complex, Dilshad Garden as DW-2 and HC Anil Kumar, RTI Cell, N-E District as DW-3.
13. According to DW-1 Rajan Kumar, the priest of the temple never handed over keys of the temple to him or any of his family member. He and his brother Sachin never used the temple premises for studying. They belong to scheduled caste. They hesitate in going inside the temple. His brother had applied for room in Nehru Hostel for Boys. The accused was called by the police in the evening of 31.08.2013 and 01.09.2013 but he was released. He stated that on 02.09.2013, he and the accused were called from their Polytechnic Institute. He was released after interrogation and the accused was arrested. The police never came to his house on 03.09.2013 alongwith the accused. He stated that Sana was residing alongwith her son Sahil on 1st floor of his house as a tenant.
14. According to DW-2 Dhyan Singh, Rajan Kumar was allotted Room No. 40 in the said hostel in the year 2013-14 and Room No. 43 in the year 2014-15. He brought application form for allotment of room in his hostel made by the accused Ex.DW2/A. He stated that they do not maintain the record regarding living and arrival of the hostel inmates. He stated that the accused was not allotted any room in his hostel.
15. DW-3 HC Anil Kumar proved RTI reply Ex.DW3/A to the application of Sh. Sanjay Gupta.
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16. I have heard arguments of Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. Sanjay Gupta, Ld. Amicus Curiae for the accused.
17. I have also perused written arguments filed by Sh. Sanjay Gupta, Ld. Amicus Curiae.
18. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that the prosecution has proved the circumstantial evidence against the accused beyond reasonable doubt and the circumstances proved by the prosecution unerringly points towards the guilt of the accused. The prosecution proved the presence of the accused in temple on 31.08.2013 at 11.30 a.m. He submitted that the prosecution proved the presence of Sahil in the temple at about 11.00 a.m. He submitted that the prosecution proved that the accused had demanded keys of the temple from the priest Rajender Prasad for studying while he alongwith his son Master Kapil Sharma was leaving the temple at 11.30 a.m. He submitted that the prosecution proved that Sahil went missing at about 12.00 noon. He submitted that post- mortem report Ex.PW6/A proved that Sahil was strangulated to death between 11.30 a.m. to 2.30 p.m. on 31.08.2013. He submitted that Topaz Blade Ex.P3 was recovered from beneath the bed at the instance of the accused. He submitted that nada Ex.P1 seized at the instance of the accused from Jitender Singh corresponded with the ligature material Ex.P6. He submitted that slipper of Sahil Ex.P2 was recovered at the instance of the accused.
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19. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that the accused has not explained any incriminating circumstance. He submitted that the accused has taken false plea in his examination under section 313 of the Cr.P.C. He submitted that non-explanation of material circumstances and false answers strengthen the case of the prosecution. He submitted that the prosecution witnesses namely PW-1 Jitender Singh, PW-2 Rajender Prasad and PW-5 Master Kapil Sharma would not become unreliable as they have not supported the case of the prosecution in toto. He submitted that the chain of circumstantial evidence proved by the prosecution is so complete that it leaves no space for any hypothesis consistent with the innocence of the accused. He submitted that the prosecution has been able to bring the guilt of the accused.
20. Sh. Sanjay Gupta, Ld. Amicus Curiae for the accused submitted that the case of the prosecution was founded on three circumstances namely motive, last seen evidence and recovery of topaz blade and capri at the instance of the accused. He submitted that the prosecution has not proved any of the circumstances against the accused. He submitted that the prosecution could not prove the motive of the commission of crime. He submitted that PW-3 Sana denied that she had any illicit relationship with the accused. He submitted that motive attributed by the prosecution that the accused committed murder of Sahil as he was a hurdle in illicit relation between Sana and the accused remained unproved.
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21. Sh. Sanjay Gupta, Ld. Amicus Curiae for the accused further submitted that motive is an important circumstance in a case of circumstantial evidence. He submitted that failure to establish motive for the offence is fatal to the case of the prosecution. He submitted that the theory of last seen evidence is not applicable in the case as the last seen witnesses namely PW-2 Rajender Prasad and PW-5 Master Kapil Sharma have not supported the case of the prosecution. He submitted that the said witnesses denied the presence of the deceased in and around the temple on 31.08.013 at about 11.30 a.m. He submitted that PW-2 Rajender Prasad categorically deposed that his signatures were obtained on blank papers and he was threatened to make statement under section 164 of the Cr.P.C. He submitted that the said witness categorically stated that Topaz Blade Ex.P3 was shown to him in the police station. He submitted that PW-5 Master Kapil Sharma denied in his cross-examination that he had seen Sahil in the temple. He submitted that the prosecution failed to prove last seen evidence. He submitted that the prosecution failed to prove the recovery of nada Ex.P1 from PW-1 Jitender Singh. He submitted that the said witness stated that no person accompanied police official. He submitted that the said witness even did not identify the nada Ex.P1. He submitted that PW-2 Rajender Prasad denied that he signed the seizure memo of cooler Ex.P5. He submitted that PW-3 Sana stated that slipper Ex.P2 was shown to her in the police station.
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22. Sh. Sanjay Gupta, Ld. Amicus Curiae for the accused further submitted that the evidence of PW-17 Ct. Sandeep Kumar, PW-3 Sana and PW-25 Insp. Jaipal Singh suffer from material contradictions. He submitted that PW-22 Rajesh, swachhta karamchari categorically deposed that seal was kept by IO with him. He submitted that PW-23 SI Gaurav Kumar could not state the name of author of the material documents. He submitted that seizure memo of slipper Ex.P2, nada Ex.P1 and cooler Ex.P5 do not bear signatures of PW-17 Ct. Sandeep Kumar. He submitted that seizure memo of slipper Ex.P2, nada Ex.P1 and capri Ex.P4 do not bear signature of PW-23 SI Gaurav Kumar. He submitted that PW-25 Insp. Jaipal Singh conducted investigation in a casual manner. He submitted that he improved his statement regarding search of slipper. He submitted that he had not obtained signature of Rajesh on seizure memo in respect of slipper. He submitted that he did not join any public witness to search and seizure proceedings. He submitted that he had not handed over seal to any other member. He submitted that despite the fact that he recovered mobile phone from personal search of the accused, he did not collect Call Detail Record and location of the accused at the time of incident and thereafter. He submitted that he neither collected Call Detail Record nor ascertained the caller who made call to Javed on his mobile number. He submitted that SI Anuj and SI Divyansh were not examined. He submitted that defence witnesses proved innocence of the accused.
FIR No. 400/2013 State Vs. Sachin Page No. 11 of 55 Examination of evidence and analysis:
23. We begin our quest with the usual mantra. Let us determine the nature of death of Sahil. The defence has not disputed that the death of Sahil was not a homicide. Post- mortem report Ex.PW6/A proved that eyeballs of the dead body were protruding from sockets. It proved that mouth of the dead body was open and the tongue was protruding and caught between teeth. There were three external ante-mortem injuries on the dead body of Sahil, as reproduced under:
"(1) Ligature mark is present completely and horizontally around the neck below thyroid cartilage and is 0.8 cm wide throughout its course. In the midline the ligature mark is 6 cm below chin and on the Right side goes horizontally and posteriorly and is 4 cm below Right angle of mandible. Mark goes further posteriorly and is 7 cm below right mastoid.
The ligature mark goes horizontally and posteriorly and is present 8 cm below occipital protuberance. Mark goes anteriorly and horizontally towards left side and is 7 cm below left mastoid. Mark goes further anteriorly and is noted to be 4 cm below left angle of mandible. Mark goes further horizontally and anteriorly in midline. At places the skin of the neck was peeled off due to putrefaction. The places where skin is present the ligature mark is hard and reddish brown in colour and where skin is absent the mark is reddish in colour. On dissection the underlying soft tissues and muscles having extravasation noted. Bruising of bilateral carotid sheath present. Thyroid and Cricoid cartilages and hyoid bone intact. Neck circumferences is 25.5 cm.
Ligature material: is whitish brown nada of width 0.3 cm encircling neck thrice with dimensions as shown in figure. Ligature material is cut opposite to the free ends, sealed and handed over to the investigating officer.
FIR No. 400/2013 State Vs. Sachin Page No. 12 of 55 (2) Incised wound of size 7.5 cm x 2 cm x 1.5 cm is present obliquely over midline neck. 1 cm below injury number 1 cutting underlying subcutaneous tissue, muscles and a nick over trachea. Extravasation noted in soft tissues. Maggots present over the wound.
(3) Incised wound with tailing on Right lateral side of size 9.5 cm x 2.5 cm x 0.6 cm is present horizontally over Right face extending from Right lateral angle of mouth upto 1.5 cm medial to lower end of Right pinna. Extravasation present in soft tissues. Maggots present over wound. Margins of the wound eaten by maggots at places."
24. According to autopsy report Ex.PW6/A, cause of death was 'asphyxia as a result of ante-mortem compression of neck by ligature strangulation'. Injury No. 1 was sufficient to cause death in ordinary course of nature. Injury No. 1 was produced by ligature and ligature mark around the neck corresponded with the ligature material Ex.P6 recovered from the neck of the dead body of the deceased Sahil.
25. Given by the observation as noted in the general examination that the mouth of the deceased Sahil was open and tongue was protruding and caught between teeth and injury No. 1 caused extravasation in soft tissues and muscles of the neck, it is proved that death of Sahil was caused by strangulation with ligature material Ex.P6 with the intention to cause his death. Moreover, injury No. 2 was caused with a sharp edged object with the intention to ensure that the deceased Sahil must not remain alive even if he survived strangulation. It is therefore, beyond any cavil that the death of deceased Sahil was a murder.
FIR No. 400/2013 State Vs. Sachin Page No. 13 of 55 Circumstantial evidence:
26. There is no direct evidence to the crime. The case of the prosecution is based on circumstantial evidence.
27. It is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"1. The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
3. The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
Motive:
28. The case of the prosecution was that the accused had illicit relation with Sana and she used to visit Moradabad to meet her daughter, who was residing with her parents in Moradabad. The accused used to ask her to bring her daughter to Delhi so that she would stop visiting Moradabad. The accused was under the impression that she would not bring her daughter to Delhi till Sahil was residing with her. The accused made a call to Javed that Sana was having illicit relationship with son of her landlord.
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29. However, the prosecution could not establish the motive for commission of crime. PW-3 Sana has not deposed anything in this regard. She stated, in her cross-examination, that she was not having illicit relations with the accused. She stated that her husband did not ask her anything about her relation with the accused.
30. PW-4 Javed stated that 2-3 days before Eid in the year 2013, he received a telephonic call on his mobile phone asking him to bring his son Sahil from Sana. He stated that the said boy told him that he was having illicit relation with Sana. He stated that the said boy asked him to come to Gokal Puri and see Sana with son of landlord in compromising position. He stated that he asked the name of the caller but he did not disclose his name. He stated that he saved the said mobile number in his phone. He stated that on 31.08.2013, he came to Gokal Puri, after receiving information about missing of his son Sahil, and shown the said mobile number to Sana who confirmed that the said number belonged to the accused, son of her landlord. He stated that he raised suspicion upon the accused and therefore, he was arrested by the police. He stated that he received the said call on his mobile No. 8585989532. He stated that the said number was obtained by him in his mother's name, Latifa. He stated that he had told the said mobile number of the caller to the police. He stated that he does not remember the said number. Mobile number of the said caller is mentioned in his statement under section 161 of the Cr.P.C. Ex.PW4/A. FIR No. 400/2013 State Vs. Sachin Page No. 15 of 55
31. PW-4 Javed, in his cross-examination, stated that he had not made any complaint to police or to any other person after receiving the said call. He stated that he had told his mobile number to the police. He stated that he had not made any enquiry to ascertain as to whether Sana was having illicit relation with any person.
32. PW-25 Insp. Jai Pal Singh categorically stated, in his cross-examination, that he has no other evidence to establish the motive in the present case except the statement of PW-4 Javed and PW-3 Sana. He stated that he has not collected mobile number of Javed and the said unknown caller. He denied the suggestion that Javed disclosed his mobile number and mobile number of the caller to him.
33. Therefore, it is evident that there is no evidence that Sana had illicit relation with the accused. PW-25 Insp. Jai Pal Singh did not ascertain the mobile number of the caller from Javed nor identified the caller. He could have obtained the said mobile number from the phone book of Javed or Call Detail Record (CDR) of Idea No. 8585989532. He had seized mobile phone make 'Nokia' containing SIM phone No. 8285273094 from the accused vide memo Ex.PW25/H. He did not collect Call Detail Record (CDR) of the said mobile number. Be that as it may. There is no evidence that the accused made any call to Javed or stated anything regarding his relationship with Sana. The prosecution has failed to establish motive for the commission of the crime.
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34. Ld. Amicus Curiae contended that in a case based on circumstantial evidence, motive is an important incriminating circumstance and failure to prove it is fatal to the case of the prosecution. The prosecution refuted his argument.
35. Motive is a mental state, which is always locked in the inner compartment of the brain of the accused and inability of the prosecution to establish the motive need not necessarily cause entire failure of prosecution.
36. In 'State of Himachal Pradesh vs. Jeet Singh' {1999 (4) SCC 370}: it was held that:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it....."
37. In 'Paramjeet Singh vs. State of Uttrakhand', 2010 (10) SCC 439, Hon'ble Supreme Court held that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. Following was stated in a paragraph 54:
"So far as the issue of motive is concerned, the case is squarely covered by the judgement of this Court in Suresh Chandra Bahri (supra). Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide: State of Gujarat vs. Anirudhsing [supra])"
FIR No. 400/2013 State Vs. Sachin Page No. 17 of 55 Last seen evidence:
38. The case of the prosecution is based on last seen evidence of PW-2 Rajender Prasad, priest of the temple, PW-5 Master Kapil Sharma, son of priest of the temple and PW-3 Sana, mother of the deceased Sahil.
39. On 16.09.2013, PW-27 Sh. Dharmender Rana, Ld. MM-01, North-East District, Karkardooma Courts, Delhi recorded statement of PW-2 Rajender Prasad and PW-5 Master Kapil Sharma under section 164 of the Cr.P.C. which are Ex.PW2/A and Ex.PW5/A respectively.
40. Statement of PW-2 Rajender Prasad under Section 164 of the Cr. P. C. Ex.PW2/A is translated as under:
"Statement of Sh. Rajender Prasad Sharma S/o Sh. Tula Ram Sharma, Aged about 42 years R/o H. No. 4, D-Block, Gali No. 4, Ganga Vihar, Gokal Puri, Delhi.
I am a heart patient. Usually, I get late in reaching temple. Worshipers come in the early morning and therefore, I do give key to the neighbour. 10-12 days before the incident, Rajan, elder brother of Sachin asked me that he is not able to study in his house due to noise of T.V. Therefore, he demanded key for studying from me. I told him that temple is to be opened early. I had given key to Rajan.
On 31.08.2013, I and my son Kapil were cleaning the temple. Sachin and Sahil were also sitting there. At about 11.30 a.m., I was closing the temple, then Sachin demanded key of temple from me for studying. I handed over key to Sachin and we, both came to house. At about 12.00 noon - 12.15 p.m., Sachin made a call to me and asked me as to where was Kapil. I told him that Kapil was having meal with me and now, he would go to school. He told me that Sahil was not traceable. I told to him that we left Sahil with him.
FIR No. 400/2013 State Vs. Sachin Page No. 18 of 55 In the evening at about 05.00 - 05.30 p.m., we went temple, we found it opened. There was a crowd in the street. Sahil was missing, Sahil was missing. Thereafter, police came and searched Sahil in the entire temple. Rajan was in the temple. On 02.09.2013, Rajan had told me that there was foul smell in the temple. I searched everywhere but I did not find anything. I went to bathroom. I also felt foul smell. I went for hawan. When I returned after performing hawan, there was a crowd in the street. People present there told me that one dead body was found in the temple. I went upstairs and saw that dead body of Sahil was lying in the cooler and pungent foul smell was coming. I felt dizziness. I came down. Someone made a call at 100. Police came and taken me to police station.
On 03.09.2013, one blade was also found. When I was called by Inspector, he told me that pandit ji, this blade was found there. I do not want to say anything else."
41. Statement of PW-5 Master Kapil Sharma under Section 164 of the Cr. P. C. Ex.PW5/A is translated as under:
"Statement of Master Kapil Sharma S/o Sh. Rajender Prasad Sharma, Aged about 13 years R/o Shiv Durga Mandir, F-Block, Gali no.4, Ganga Vihar, Gokal Puri, Delhi.
On 31.08.2013, I and my father were returning after cleaning the temple. Sachin demanded key of the temple. He stated that Pandit ji, I would study in the temple. Sachin was sitting in the temple. When we were closing the temple, he stated that give him key because he has to study. We given key to him. We came to house. We had left Sahil playing with Sachin. I do not want to say anything else".
42. Sh. Sanjay Gupta, Ld. Amicus Curiae submitted that PW-2 Rajender Prasad and PW-5 Master Kapil Sharma have not supported the case of the prosecution. He stated that they have categorically denied that Sahil was playing in the temple. Ld. Addl. PP for the State submitted to the contrary.
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43. PW-2 Rajender Prasad, in his evidence, stated as under:
"On 31.08.2013, I alongwith my son namely Sh. Kapil Sharma was in the temple since morning till 11.30 am. At that time, Sachin was sitting there and reading a book. I can identify Sachin. Witness has identified Sachin who is present in the Court. Sachin is the son of Smt. Geeta Devi who is residing just opposite the temple. Her elder son Rajan and Rahul are younger than Sachin. Sachin asked for key of the temple and stated that he wanted to study there. I asked him to study at home but he insisted that he could not study at home and asked for key.
At about 11.00 a.m.-11.30 a.m., I had given the keys of the temple to Sachin and left the temple alongwith my son. At that time, Sahil was not there and Sachin was alone.
Thereafter, I returned to Mandir at about 05.30 p.m. Some ladies and gents were standing outside the Mandir. I heard that a boy namely Sahil was missing and he was not found despite search. In the night, police had arrived at Mandir and made search for Sahil in the Mandir but he was not found. I had gone to my house at about 09.30 p.m., after closing the Mandir.
In his cross examination by Ld. Addl. PP for the State, he stated as under:
.....It is correct that I had stated in my statement Ex.PW2/A that Sachin also told me on telephone at about 12.15 p.m., that Sahil was missing or that I asked him that we had left Sahil with him. Vol. I had given the statement before Ld. MM as per convenience of the police as they had threatened me to depose the same, in fact I was not told so by Sachin nor I seen Sahil with the company of Sachin or that Sachin had not told anything to me about missing of Sahil. It is wrong to suggest that I had deposed before Ld. MM voluntarily and no threat was given by the police. It is wrong to suggest that I have been won over by the accused and that is why resiling from certain aspects of my statement.
(emphasis supplied by the Court) FIR No. 400/2013 State Vs. Sachin Page No. 20 of 55
44. PW-2 Rajender Prasad, in his cross examination by the defence stated as under:
...... I had made the statement before the Ld. MM at the instance of police under threat and pressure. It is correct that I had not seen Sahil in the company of accused Sachin on 31.08.2013 at about 11.00 or 11.30 a.m., when I left the temple alongwith my son Kapil Sharma.
45. PW-5 Master Kapil Sharma, in his evidence, stated as under:
"I do not remember the date of incident. It took place before 7 or 8 months. On that day, my father had gone to temple at 05.30 a.m. I reached at temple between 09.00 a.m.-10.00 a.m. I and my father did cleaning of the temple and at that time, Sachin was studying in the temple. I know Sachin who was residing just opposite of the temple. At that time, I my father and Sachin were in the temple. At about 11.30 a.m., after completing cleaning of the temple, me and my father returning our home, Sachin stated that his work was not complete and demanded key of the temple and stated that he would close the temple after finishing his work and open the temple before the time when my father would return to the temple in the evening. My father handed over the keys of the temple to Sachin and we proceeded to our home and reached at out home. At that time, Sahil was not present there. After reaching at home, I had taken meal and thereafter, I went to my school and in the evening, I returned to my home and after changing my clothes, I reached at temple in the evening and there, I heard that Sahil was missing. I knew Sahil since I used to visit his house and some times, his mother also asked me for doing some domestic work. Sahil never came to temple. I made statement before the police. My statement was also recorded before a Metropolitan Magistrate. Statement has been shown to the witness. Statement is Ex.PW5/8A and it bears my signature at point A. FIR No. 400/2013 State Vs. Sachin Page No. 21 of 55 However, the statement that the Sahil was playing in the temple with Sachin was made under threat and influence of the police which is mentioned at point A to A in my statement and rest of the statement is correct. I have read my statement and beside portion A to A, my statement is correct. I do not want to say anything else.
In his cross examination by Ld. Addl. PP for the State, he stated as under:
It is wrong to suggest that at the time when my father had given the keys of the temple to accused Sachin, Sahil S/o Sana tenant of Sachin was also present in the temple. It is wrong to suggest that Sahil was playing in the temple at that time. It is wrong to suggest that I had stated so to the police and Ld. MM in my previous statement. Confronted with statement Ex.PW5/A and Ex. PW5/DA where it is so recorded. It is wrong to suggest that I am not deposing about the presence of Sahil in the temple at the time when Sachin was studying there on 31.08.2013 at about 11.30 a.m., as my father had entered into a compromise with the accused and his family members. It is wrong to suggest that I am deposing falsely.
(emphasis supplied by the Court)
46. PW-5 Master Kapil Sharma, in his cross examination by the defence is stated as under:
"It is correct that police had threatened and presurrized us to give the statement and therefore, we had given the statement to the Magistrate and police. My statement before Ld. Magistrate was correct except the fact that the Sahil was playing in the temple and Sachin was also present there. I made this statement at the instance of the police. I had not seen Sahil playing in the temple at that time when Sachin demanded the keys of the temple. On that day, I had not seen Sahil in the temple. My father was taken to the police station by the police in the night. It is correct that he was also forced to make statement. It is correct that Sachin and his brother used to take keys of the temple for studying therein since there were not having enough space in their house for the purpose of study.....
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47. Evidence of a hostile witness is not effaced simply for the reason that the witness has not supported the prosecution. Such evidence can be relied upon to the extent it is consistent to the case of the prosecution.
48. In Ram Sagar @ Sagar Versus State, Crl. A. 649/2014 decided on 25.08.2015 by Delhi High Court.
"29..... It is well settled that the evidence of a witness hostile to the cause of the party calling him does not get effaced simply on such account. Notwithstanding the fact that a witness has been cross-examined by the party at whose instance he appears, his evidence still requires to be considered for evaluation of its worth and for it to be found whether he stands thoroughly discredited or whether his testimony, as a whole or in part, can still be believed or acted upon. It is trite law that evidence of a hostile witness can be relied upon, to the extent it supports the prosecution version, if it finds corroboration from the other material on record...
49. In Devraj Versus State of Chhatisgarh, Criminal Appeal No.423 of 2015 decided on July 25,2016 by the Supreme Court of India.
"19. The evidence of a witness who has been declared hostile can be relied if there is some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile.
50. It is, therefore, evident that PW-2 Rajender Prasad and PW-5 Master Kapil Sharma have not supported the case of the prosecution to the extent that Sahil was playing in the temple when key of the temple was given to the accused.
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51. From the evidence of PW-2 Rajender Prasad and PW-5 Master Kapil Sharma, it is proved that:
(a) On 31.08.2013 at about 11.30 a.m., that the accused Sachin was studying in the temple;
(b) The accused Sachin asked for key of the temple on the pretext that he wanted to study there;
(c) The accused Sachin stated that his work was not complete and he would close the temple after finishing his work and open it before PW-2 Rajender Prasad would come to the temple in the evening;
(d) The accused Sachin and his brother used to take key of the temple for studying therein as they did not have enough space in their house for studying purpose;
(e) PW-2 Rajender Prasad asked the accused Sachin to study in his house but he insisted for key and stated that he could not study at home;
(f) On 31.08.2013 at about 11.30 a.m., PW-2 Rajender Prasad given key of the temple to the accused Sachin and left the said temple with his son Master Kapil Sharma for his home;
(g) On 31.08.2013 at about 12.15 p.m., the accused Sachin told PW-2 Rajender Prasad that Sahil was missing and he told him that he had left Sahil with him, and
(h) On 31.08.2013 at about 05.30 p.m., PW-2 Rajender Prasad returned to the said temple where he came to know that Sahil was missing.
52. The fact that PW-2 Rajender Prasad and PW-5 Master Kapil Sharma have not supported the case of the prosecution as regards the presence of Sahil in the temple is not significant. PW-3 Sana in the missing report Ex.PW3/A made on 31.08.2013 at about 04.00 p.m. categorically stated that on 31.08.2013 at about 11.00 a.m., Sahil was playing in the temple in front of her house and at about 12.00 noon, she went to the said temple but she did not find him playing there.
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53. PW-3 Sana, in her evidence, stated as under:
"...On 31.08.2013 at about 11.00 a.m., my son Sahil aged about 7 years was playing in Shiv Mandir situated in front of our house and he was wearing black jeans, "Jamni" T-shirt and blue colour slippers. Around 12.00 noon after preparing food, I had gone to Mandir to call my son Sahil but he was not found there. Thereafter, I search him at different placed but he was not found. Thereafter, at about 4.00 p.m. I had gone to PS Gokal Puri and made complaint about missing of my son. Witness identifies her signature at point A on complaint Ex.PW3/A. On my complaint police had registered FIR and made search for my son."
54. Further, PW-3 Sana denied the suggestion that on 31.08.2013 at about 11.00 a.m., her son Sahil was not playing in the said temple and at about 12.00 noon, she had not gone to the said temple to call Sahil.
55. PW-3 Sana lodged missing report Ex.PW3/A at about 04.00 p.m. on 31.08.2013 without any loss of time and on the basis of the said report, the case FIR Ex.PW14/B was registered on 31.08.2013 at 04.40 p.m. The case FIR Ex.PW14/B and missing report Ex.PW3/A are contemporary documents and they corroborated PW-3 Sana.
56. PW-23 SI Gaurav Kumar, PW-10 Ct. Jai Kumar and PW-3 Sana, searched Sahil in the said temple on 31.08.2013. PW-2 Rajender Prasad stated that the police searched Sahil in the said temple. The defence made suggestion to the said witnesses in this regard. Search of Sahil in the said temple soon after he went missing supported PW-3 Sana that she had seen Sahil in the said temple at about 11.00 a.m. on 31.08.2013.
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57. It is proved that on 31.08.2013 at about 11.00 - 11.30 a.m., the accused had obtained key of the said temple from PW-2 Rajender Prasad and at that time, Sahil was playing in the said temple. It is further proved that on 31.08.2013 at about 12.00 noon, Sahil went missing from the said temple. Therefore, theory of last seen would be applicable to the present case.
58. Hon'ble Delhi High Court summarized the law on last-seen evidence in 'Arvind @ Chhotu v. State', CRL. A. 362/2001 decided on August 10, 2009, as under:
103. We may summarize the legal position as under:-
(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.
(ii) It is not necessary that in each and every case corroboration by further evidence is required.
(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances that deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.
(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.
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(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last-seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.
(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.
(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last seen theory.
The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction."
59. As already discussed, it is proved beyond any cavil that on 31.08.2013 at about 11.30 a.m., the accused was studying in the temple and PW-2 Rajender Prasad had given him key of the temple and at that time, Sahil was playing in the said temple.
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60. It is further proved that dead body of Sahil was found in a cooler in the hall on the first floor of the said temple on 02.09.2013 at about 11.00 a.m. - 11.15 a.m.
61. PW-2 Rajender Prasad stated that on 02.09.2013 at about 11.00 - 11.30 a.m., he returned to the said temple after performing hawan. He stated that there was a crowd in the said temple. He stated that there was foul smell. He stated that he went to first floor of the temple alongwith public persons. He stated that dead body of Sahil was found in a cooler. PW-21 Vipul made call at 100. He stated that on 02.09.2013 at about 11.00 a.m. - 11.15 a.m., he found a crowd in front of the temple and thereafter, he went to first floor of the said temple. He stated that he found a dead body of a child in a cooler kept in the corner of the room. He stated that he informed the police through his mobile No. 9999900913. PW-19 L/Ct. Poonam, Channel Operator received the said PCR call at Channel No. 154 on 02.09.2013 at 11:19:14 hrs. that dead body of a child was found in the said temple vide PCR Form Ex.PW19/A. The said PCR call was received in PS Gokul Puri on 02.09.2013 at 11.25 a.m. vide DD No. 23A Ex.PW15/A. PW-23 SI Gaurav Kumar, on receipt of the said PCR call, reached at the said temple. He stated that dead body of Sahil was lying in a cooler kept in the hall at first floor of the said temple. PW-8 SI E.S. Yadav, In-charge, Mobile Crime Team with PW-9 HC Shyam Lal, Photographer reached at the said temple at about 11.45 a.m. They also stated to the similar effect.
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62. Photographs Ex.PW9/A-1, Ex.PW9/A-2, Ex.PW9/A- 3, Ex.PW9/A-4, Ex.PW9/A-5 and Ex.PW9/A-22 depict dead body of the deceased Sahil in the cooler kept in the corner of the hall at first floor of the said temple. The defence has not cross-examined any of the above witnesses on the aspect of recovery of dead body of Sahil from the said cooler in the hall on the first floor of the said temple on 02.09.2013 at about 11.00 a.m. - 11.15 a.m.
63. There is proximity of time between the deceased Sahil being last-seen in the company of the accused and he went missing.
64. There is proximity of place i.e. the place where the deceased Sahil and the accused were last-seen alive with the place where the dead body of the deceased was found.
65. In 'Krishnan @ Ramasamy and Ors. v. State of Tamil Nadu, (2014) 12 SCC 279, Hon'ble Supreme Court held that close proximity between the last seen evidence and death should be clearly established.
66. PW-6 Dr. Vishwajeet Singh, Autopsy Surgeon conducted post-mortem on the dead body of the deceased on 02.09.2013 at 02.30 p.m. He given opinion that time since death of the deceased Sahil was about 2-3 days. In his cross- examination, he stated that meaning of the expression '2-3 days regarding the time of death' was that 2 days were certain and 3 days would be approximate. Time of death of the deceased Sahil was between 11.30 a.m. to 04.00 p.m. on 31.08.2013.
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67. There was proximity of time between the deceased being last seen in the company of the accused and the death of the deceased. The principles spelled at Sl. No. (iv) and (v) summarized in 'Arvind @ Chhotu's' case (supra) would apply. No explanation of the circumstances:
68. In the presence of proximity of time and proximity of place, the accused should explain, how and in what circumstances the deceased suffered death.
69. In 'Sahadevan @ Sagadevan v. State represented by Inspector of Police, Chennai' (2003) 1 SCC 534, the prosecution established the fact that the deceased was seen in the company of the appellants from the morning of March 5, 1985 till at least 05.00 p.m., on that day when he was brought to his house, and thereafter his dead body was found in the morning of March 6, 1985. In the background of such facts the Court observed:
"Therefore, it has become obligatory on the appellants to satisfy the Court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company....."
70. In 'Suresh and Another v. State of Haryana (2015) 2 SCC 227, this Court observed:-
"9. ...... No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused....."
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71. In State of W.B. v. Mir Mohammad Omar and others (2000) 8 SCC 382, this Court, while interpreting the burden of extent of proof on prosecution, observed as under:-
"36. In this context we may profitably utilize the legal principle embodied in Section 106 of the Evidence Act which read as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference."
72. The present case is more akin to murder committed inside a house. It is, therefore, incumbent upon the accused to give a cogent explanation as to the circumstance leading to the death of Sahil.
73. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, this Court held as under:-
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
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74. The accused has not given any explanation as to when and how he parted the company of the deceased Sahil. PW-2 Rajender Prasad stated that when he returned to temple at about 05.30 p.m., some ladies and gents were standing outside the temple. PW-5 Master Kapil Sharma stated that when his father reached at temple in the evening, it was open. The accused even not stated as to when he had opened the temple. He even denied that keys were handed over to him by PW-2 Rajender Prasad, priest of the said temple, as under:-
"Question 1:Whereas it has come in evidence that on 31.08.2013 at about 11.00 a.m., the deceased Sahil was playing in Shri Shiv Durga Mandir at F-212, Gali No. 4, Ganga Vihar, Delhi situated just opposite to his house and on that day, at about 11.30 a.m., PW-2 Rajender Prasad, priest of the said temple handed over keys of the said temple to you and thereafter, the deceased Sahil went missing at about 12.00 noon, and as such, you are the person who was last seen with Sahil and you should explain the facts regarding disappearance of Sahil. What you have to say?
Ans. It is incorrect. No such keys were ever handed over to me by the Priest and I was not present in an around the temple on 31.08.2013 at about 11.00 a.m. nor Sahil was ever seen lastly with me. I do not know how and when Sahil disappeared.
Question 2: Whereas it has come in evidence that PW-2 Rajender Prasad had given you keys of the said temple at about 11.30 a.m. on 31.08.2013 and further, the deceased Sahil was seen playing in the said temple at about 11.00 a.m. and his dead body was found in the cooler in the hall on the first floor of the said temple on 02.09.2013 at about 11.15 a.m. and further, according to post-mortem report, the time of death of the deceased Sahil was around 11.30 a.m. to 4.00 p.m. of 31.08.2013 and as such, you should explain the facts leading to death of the deceased Sahil and recovery of his body from the cooler on the FIR No. 400/2013 State Vs. Sachin Page No. 32 of 55 first floor of the hall of the said temple whose keys were with you till 5.30 p.m. of 31.08.2013 i.e. the time when PW-2 Rajender Prasad and PW-5 Master Kapil Sharma came to the temple and found it open. What you have to say?
Ans. I do not know how the death of Sahil occurred. No such keys were ever handed over to me by the Priest and I was not present in and around the temple on 31.08.2013 at about 11.00 a.m. nor Sahil was ever seen lastly with me. I do not know how and when Sahil disappeared. The keys of the temple was not with me till 5.30 p.m. or at any point of time on 31.08.2013.
75. According to the photographs and site plan Ex.PW26/A, there was no separate entry to the temple except through the main gate of the said temple. The accused responded to the question on this aspect as under:-
"Question 3:Whereas it has come in evidence that according to the photographs Ex.PW9/A-18, Ex.PW9/A-19, Ex.PW9/A-20, Ex.PW9/A-25, Ex.PW9/A-26, Ex.PW9/A-27, Ex.PW9/A-29 and Site Plan to Scale Ex.PW26/A, there was no separate entry to the temple except through the main gate of the said temple keys of which were with you. What you have to say?
Ans. I do not know. The keys of the main gate of the temple were never in my possession on 31.08.2013. Non-explanation and false explanation are missing links:
76. As discussed above, the accused has not given any explanation as to how and when he parted with the company of the deceased Sahil. He has even given false explanation of the material incriminating circumstances. Such non-explanation or false explanation is an additional link in the chain of circumstances.
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77. In 'State of Rajasthan v. Kashi Ram', AIR 2007 SC 144 , the Apex Court held as under:-
"..... It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain".
78. In 'Sunil Clifford Daniel v. State of Punjab, (2012) 11 SCC 205 as under:-
"When the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstance." See: Harivardan Babubhai Patel v. State of Gujarat 3 (2013) 7 SCC."
79. In Moinuddin v. State, Crl. A.1122/2010 decided on 04.09.2013 by Delhi High Court:-
"41. ..... It is settled law that if the accused gives incorrect or false answers during the course of his statement under Section 313 of the Cr.P.C. the Court can draw adverse inference against him (See:- 2012 AIR (SC) 2470 Munna Kumar Upathyaya v. State of Andhra Pradesh). The appellant must suffer on this count as well."
80. In 'Kailash v. State', Crl. A. No. 725/2012, decided on 01st December, 2015, by Delhi High Court:-
"19. ..... The false answers given by the appellant in his statement under Section 313 Cr.P.C., as noted above, provided a supporting link in the chain of circumstances, if there was any missing link for it to be required to be filled in. We may rather observe that the false answers in the case at hand reinforce the impression gained from the proved facts as to the appellant being the perpetrator."
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81. The accused given false answers to the questions under section 313 of the Cr.P.C., as under:
"Question 14: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that on 31.08.2013, he alongwith his son Master Kapil Sharma (PW-5) was in the said temple since morning till 11.30 a.m. and at that time, you Sachin was sitting there and reading a book. What you have to say? Ans. It is incorrect.
Question 15: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that he reached at the said temple between 9.00 a.m.-10.00 a.m. and at that time, you Sachin was studying in the said temple. What you have to say?
Ans. It is incorrect.
Question 18: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that you Sachin asked for key of the temple on the pretext that you wanted to study there. What you have to say? Ans. It is incorrect. No such keys were ever demanded by me from PW-2 Rajender Prasad. Question 19: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that at about 11.30 a.m., when he and his father Rajender Prasad (PW-2), after completing cleaning of the said temple, were about to return to their house, you Sachin stated that your work was not complete and demanded key of the said temple. What you have to say?
Ans. It is incorrect. I did not ask for keys of the temple at any point of time from Kapil Sharma or Rajender Prasad at 11.30 a.m. on 31.08.2013 or at any point of time because being scheduled caste we were not allowed to enter the temple.
Question 20: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that you Sachin stated that you would close the temple after finishing your work and open the temple before the time when his father Rajender Prasad (PW-2) would return to the temple in the evening. What you have to say?
Ans. It is incorrect. No such talks had taken place.
FIR No. 400/2013 State Vs. Sachin Page No. 35 of 55 Question 21: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that he asked you to study in your home but you insisted for key of the said temple on the pretext that you could not study at home. What you have to say? Ans. It is incorrect. No such talks had taken place.
Question 22: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that on 31.08.2013 at about 11.00 a.m.-11.30 a.m., he had given keys of the said temple to you and left the said temple alongwith his son Master Kapil Sharma (PW-
5). What you have to say?
Ans. It is incorrect. No such keys were given to me by PW-2 Rajender Prasad at any point of time on 31.08.2013.
Question 23: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that PW-2 Rajender Prasad handed over the keys of the said temple to you and went to their house. What you have to say?
Ans. It is incorrect. No such keys were given to me by PW-2 Rajender Prasad at any point of time on 31.08.2013."
Legal consequence of no explanation or false explanation:
82. If the accused furnishes no explanation or false explanation, it would enable the Court to draw an inference that the accused was the author of the crime.
83. In Moinuddin v. State, Crl. A. 1122/2010 decided on 04.09.2013, Hon'ble Delhi High Court held as under:
"33. The theory of last seen come into play; this theory being that where the deceased is last seen alive with an accused and soon thereafter the deceased was found dead and there being little possibility of any other person accessing the deceased unless the accused explains the circumstance under which the deceased has died, the accused must own up to the guilt (AIR 2003 SC 3131 Mohibur Rahman Vs. State of Assam)".
FIR No. 400/2013 State Vs. Sachin Page No. 36 of 55
84. In 'Ram Sagar @ Sagar', Crl. A. 649/2014 decided on 25.08.2015, Hon'ble Delhi High Court held as under:
"44. The "last seen" theory comes into play in a fact situation where the time-gap between the point of time when the accused and the victim (deceased) were last seen alive together, in the company of each other, and the time when the victim suffered the homicidal death is so small that possibility of any person other than the accused being responsible for the same becomes impossible. The proximity in time of the two events is the key factor since a long gap gives rise to the possibility of other persons having come in. The burden of proving that the accused and the deceased were last seen alive, in the company of each other, closely proximate to the probable time of death, rests squarely on the prosecution. Once these facts are proved, failure or absence of any explanation, by the accused, is a relevant fact. Thus, if the deceased had been last seen alive in his company, then the accused should satisfy the Court by offering an explanation as to how, where and when he had parted company. The explanation which the accused furnishes must appear to the Court to be probable and not a delusion. If he does give a plausible explanation, no adverse inference is drawn. Conversely, if he fails to offer an explanation, on the basis of facts within his special knowledge, the Court may legitimately consider such failure as an additional link completing the chain of circumstantial evidence proving his guilt. The permitted reasoning process enables the Court to draw an inference, in the light of preceding and succeeding circumstances, that the accused, who was last seen alive in the company of the deceased, had committed the acts leading to his homicidal death. Explanation as to the circumstances can take various forms, e.g. facts put to witnesses in cross- examination, facts stated in the statement u/s 313 Cr.P.C. or even facts emerging from the statements or the documents on record etc. [State vs. Mir Mohd. Omar 2000 VII A.D. (SC) 37; Sucha Singh vs. State of Punjab JT 2001 (4) SC 107; Ram Gulam Chaudhary and Ors. vs. State of Bihar JT (2001) 8 SCC 311; Sahadevem vs. State (2003) 1 SCC 534; State of U.P. vs. Satish (2005) 3 SCC 114]"
FIR No. 400/2013 State Vs. Sachin Page No. 37 of 55 Conduct of the accused:
85. PW-2 Rajender Prasad, in his statement under section 164 of the Cr.P.C. Ex.PW2/A, stated that on 31.08.2013 at about 12.00 - 12.15 p.m., the accused made a call on his mobile phone and informed him that Sahil was not traceable to which he stated that he had left Sahil with him. PW-2 Rajender Prasad, in his evidence, deposed that Sachin told him on telephone at about 12.15 p.m. that Sahil was missing and he told him that he had left Sahil with him. However, he stated that he made the said statement before Ld. MM as per convenience of the police. He even stated that he had not deposed before Ld. MM voluntarily and threat was given by the police. It is relevant to mention that no such suggestion was given to PW- 27 Sh. Dharmender Rana, Ld. MM that PW-2 Rajender Prasad had not made statement voluntarily. It is further relevant to state that PW-25 Insp. Jai Pal Singh, Investigating Officer denied the suggestion that he exerted any threat, duress or fear upon PW- 2 Rajender Prasad to make statement. PW-2 Rajender Prasad did not make any complaint to PW-27 Sh. Dharmender Rana, Ld. MM that he was making statement under threat or duress. He even did not name the police official who subjected him to such kind of duress or threat or tutored him. It is also relevant to state that the accused, in his examination under section 313 of the Cr.P.C., did not challenge the evidence of PW-3 Sana that on 31.08.2013 at about 11.00 a.m., Sahil was playing in the temple and he went missing from there at about 12.00 noon.
FIR No. 400/2013 State Vs. Sachin Page No. 38 of 55
86. The response of the accused, in his examination under section 313 of the Cr.P.C., is as under:
Question 10: Whereas it has come in evidence that as deposed to by PW-3 Sana that on 31.08.2013 at about 11.00 a.m., her son Sahil, aged 7 years was playing in the said Shri Shiv Durga Mandir situated in front of her house. What you have to say? Ans. I do not know.
Question 24: Whereas it has come in evidence that as deposed to by PW-3 Sana that on 31.08.2013 at about 12.00 noon, she went to the said temple to call Sahil but he was not found there and thereafter, she searched him at different places but he was not found. What you have to say?
Ans. I do not know.
87. It is therefore, evident that the accused did not offer any explanation as to the evidence of PW-3 Sana that on 31.08.2013 at about 11.00 a.m., Sahil was playing in the temple and he went missing from there at about 12.00 noon.
88. The response of the accused to the question regarding the call made by him to PW-2 Rajender Prasad at 12.15 p.m. on 31.08.2013, is as under:
Question 25: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that on 31.08.2013 at about 12.15 p.m., you told him that Sahil was missing and he asked you that he had left Sahil with you (Sachin). What you have to say?
Ans. It is incorrect. No such talks had taken place.
89. PW-2 Rajender Prasad with PW-5 Master Kapil Sharma left the temple after handing over key to the accused at about 11.30 a.m. on 31.08.2013. The accused had no occasion to make the said call. Such conduct of the accused is relevant under section 8 of the Evidence Act.
FIR No. 400/2013 State Vs. Sachin Page No. 39 of 55
90. PW-2 Rajender Prasad stated that on 01.09.2013 at about 11.30 a.m., he handed over key of the temple to Rajan, elder brother of Sachin. He stated that he used to give key of the temple to Rajan since one month. This statement was not challenged in the cross-examination.
91. PW-5 Master Kapil Sharma stated that the accused demanded keys on several occasions and his brother Rajan used to study in the temple. He stated that Sachin used to study on the ground floor till they remained there. He stated that brother of the accused used to sleep in the hall on the 1 st floor and for that purpose, he used to demand keys of the temple regularly. He stated that sometimes, the accused used to take the key of the temple in night also. This statement was not challenged in the cross-examination. Rather, a suggestion was made that the accused and his brother used to take keys of the temple for studying therein since they were not having enough space in their house for studying. PW-5 Master Kapil Sharma admitted this suggestion. However, the accused, in his examination under section 313 of the Cr.P.C., denied the facts not controverted in the cross-examination and suggested by the defence to PW-5 Master Kapil Sharma in his cross-examination. Such conduct is relevant under section 8 of the Evidence Act.
FIR No. 400/2013 State Vs. Sachin Page No. 40 of 55
92. The response of the accused, in his examination under section 313 of the Cr.P.C., is as under:
Question 26: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that you used to study on the ground floor of the said temple till PW-2 Rajender Prasad and his son Master Kapil Sharma (PW-5) used to remain in the said temple. What you have to say?
Ans. It is incorrect. No such talks had taken place. Question 27: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that he used to give keys of the said temple to your elder brother Rajan since one month as on 31.08.2013. What you have to say?
Ans. It is incorrect.
Question 28: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that your brother used to sleep in the hall of the first floor of the said temple and for that purpose, he used to demand keys of the said temple regularly. What you have to say?
Ans. It is incorrect. We all used to sleep in our house. Question 29: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that you Sachin and your brother used to take keys of the said temple for studying therein as there was no enough space in your house for studying purposes. What you have to say?
Ans. It is incorrect. The keys of the temple was never given to me or my brother nor kept by us in our house for any purpose.
Question 30: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that some times, you Sachin used to take the keys of the said temple for night also. What you have to say? Ans. It is incorrect. I have never taken the keys of the temple nor it was given to me ever.
Question 34: Whereas it has come in evidence that as deposed to by PW-2 Rajender Prasad that on 01.09.2013, he handed over keys of the said temple to your elder brother Rajan while leaving the said temple in the evening. What you have to say?
Ans. It is incorrect.
FIR No. 400/2013 State Vs. Sachin Page No. 41 of 55
93. It is relevant to state that the defence did not challenge the evidence of PW-2 Rajender Prasad and PW-5 Master Kapil Sharma on the aspect that on 31.08.2013 at about 11.30 a.m., they had given key of the temple to the accused as he wanted to study there. However, the accused went to the extent of stating that he was not allowed to enter into the temple at he belonged to a schedule caste, as under:
Question 19: Whereas it has come in evidence that as deposed to by PW-5 Master Kapil Sharma that at about 11.30 a.m., when he and his father Rajender Prasad (PW-2), after completing cleaning of the said temple, were about to return to their house, you Sachin stated that your work was not complete and demanded key of the said temple. What you have to say?
Ans. It is incorrect. I did not ask for keys of the temple at any point of time from Kapil Sharma or Rajender Prasad at 11.30 a.m. on 31.08.2013 or at any point of time because being schedule caste we were not allowed to enter the temple.
Corroborating evidence:
94. The case of the prosecution is that blue slipper of the deceased Ex.P2, topaz blade Ex.P3 used for causing incised wound on neck of the deceased and the cotton nada Ex.P1 of which the ligature material Ex.P6 was a part, were recovered at the instance of the accused and blood of human origin was detected on ligature material Ex.P6 and topaz blade Ex.P3. It is case of the prosecution that FSL report Ex.PW24/A proved that ligature material Ex.P6 is a part of cotton nada Ex.P1 recovered at the instance of the accused.
FIR No. 400/2013 State Vs. Sachin Page No. 42 of 55
95. The defence contended that PW-23 SI Gaurav Kumar and PW-25 Insp. Jai Pal Singh could not state as to who authored the disclosure statement Ex.PW17/A, pointing out memo of the place of incident Ex.PW17/B, seizure memo in respect of topaz blade Ex.PW17/C, seizure memo in respect of cotton nada Ex.PW1/A, pointing out memo Ex.17/DA, seizure memo of slipper Ex.PW3/E and seizure of capri Ex.PW17/D. The defence contended that consequent recoveries in the absence of deposition of the person who authored the aforesaid documents is insignificant. The defence contended that seizure memo of topaz blade Ex.PW17/C does not bear signature of PW-2 Rajender Prasad. The defence contended that PW-2 Rajender Prasad denied that the cooler was seized in his presence. The defence contended that PW-2 Rajender Prasad stated that his signatures were taken on blank papers. The defence contended that cloth parcels pertaining to slipper and cotton nada did not bear signatures of PW-23 SI Gaurav Kumar.
The defence contended that PW-22 Rajesh, Swachhta Karamchari not signed seizure memo of slipper Ex.PW3/E as a witness. The defence contended that there are contradictions as to how PW-22 Rajesh was called for search. The defence contended that PW-3 Sana stated that slipper Ex.P2 was shown in the police station. The defence contended that PW-22 Rajesh did not state that the accused was accompanying the police. The defence contended that the name of the police official to whom seal was given not disclosed.
FIR No. 400/2013 State Vs. Sachin Page No. 43 of 55
96. On perusal of the evidence of PW-23 SI Gaurav Kumar and PW-25 Insp. Jai Pal Singh, this Court finds that they have not stated as to who had authored the disclosure statement Ex.PW17/A, pointing out memo of the place of incident Ex.PW17/B, seizure memo in respect of topaz blade Ex.PW17/C, seizure memo in respect of cotton nada Ex.PW1/A, pointing out memo Ex.17/DA, seizure memo of slipper Ex.PW3/E and seizure of capri Ex.PW17/D. There is no document pertaining to handing over of seal after use to PW-17 Ct. Sandeep. PW-17 Ct. Sandeep did not state that seal was handed over to him. There are contradictions as to who and how PW-22 Rajesh was called for search of slipper in the drain. There are contradictions regarding time and duration of search. However, these infirmities would, at best, take the recovery of cotton nada Ex.P1, slipper Ex.P2 and topaz blade Ex.P3 out of purview of section 27 of the Evidence Act. However, there is sufficient evidence on record, as referred below, to make the said recoveries admissible under section 8 of the Evidence Act.
97. PW-1 Jitender Singh is the proprietor of Ekta General Store at H. No. F-211, Gali No. 4, nala road, Ganga Vihar, Delhi. He denied that the accused was accompanying the Investigating Officer. It is quite strange that PW-1 Jitender Singh who is running his general store in the same street even denied that accused was already known to him. He is a neighbour of the accused. The reason as to why he stated so can be easily discerned.
FIR No. 400/2013 State Vs. Sachin Page No. 44 of 55
98. PW-25 Insp. Jai Pal Singh categorically deposed that the accused led the police team to one shop namely Ekta General Store situated on T-point of temple wali gali and pointed out the said shop from where he had purchased the cotton nada and topaz blade. He deposed that Jitender Singh, owner of the said shop produced one piece of nada from the said bundle from which he sold the nada to the accused. He deposed that he seized the said nada vide seizure memo Ex.PW1/A. PW-1 Jitender Singh categorically deposed that he had given one 'nada' from the bundle of cotton 'nadas' to the police officials. He stated that the police officials had taken the said nada into possession after keeping it in a pulanda. He deposed that he had signed seizure memo Ex.PW1/A. Therefore, there is sufficient evidence on record to prove the seizure of cotton nada Ex.P1 from PW-1 Jitender Singh, owner of Ekta General Store pursuant to the statement of the accused. There is oral and documentary evidence that ligature material Ex.P6 was recovered around the neck of the deceased by PW- 6 Dr. Vishwajeet Singh. He handed over the ligature material Ex.P6 in a sealed envelope to Investigating Officer. He opined that ligature mark around neck of the deceased Sahil corresponded with the ligature material Ex.P6. FSL report proved that cotton nada Ex.P1 and ligature material Ex.P6 were 'similar in respect of their texture, weaving pattern, number of plies, twist of plies, appearance under U.V. Light, microscopic appearance, solubility and burning behaviour'.
FIR No. 400/2013 State Vs. Sachin Page No. 45 of 55
99. It cannot be a coincidence that cotton nada Ex.P1 recovered at the instance of the accused was similar to the ligature material Ex.P6. Such a fact cannot be discovered except at the instance of the accused. Therefore, it is proved that cotton nada Ex.P1 of which the ligature material Ex.P6 was a part, recovered at the instance of the accused. The accused has not explained his knowledge about the said fact, as under:
Question 4: Whereas it has come in evidence that nada (cotton rope) Ex.P-1 recovered by PW-25 Insp. Jai Pal Singh from PW-1 Jitender Singh, owner of Ekta General Store at your instance and nada (cotton rope) Ex.P-6 recovered from the dead body of Sahil were similar in respect of their texture, weaving pattern, number of plies, twist of plies, appearance under ultraviolet light (U.V. Light), microscopic appearance, solubility and burning behaviour. You should explain as to how you had the knowledge of the fact that the nada Ex.P-6 used for strangulating the deceased Sahil was purchased from Ekta General Store. What you have to say?
Ans. I never had any knowledge about Ekta General Store nor about any such nada being used or taken into possession from any shop of Ekta General Store. I had never told anybody that any nada was purchased from Ekta General Store by anybody for any purpose.
100. PW-25 Insp. Jai Pal Singh categorically deposed that the accused had disclosed that topaz blade was thrown by him beneath the bed. He deposed that the accused led him to the 1st floor of the temple and got recovered the topaz blade Ex.P3 which was lying under the double-bed. PW-23 SI Gaurav Kumar also deposed to the same effect.
FIR No. 400/2013 State Vs. Sachin Page No. 46 of 55
101. FSL reports Ex.PW25/D and Ex.PW29/A proved the presence of blood of human origin on the topaz blade Ex.P3. PW-6 Dr. Vishwajeet Singh opined that injury No. 2 and 3, as mentioned in the post-mortem report Ex.PW6/A, were produced by a sharp edged weapon and it can also be a topaz blade. The accused failed to explain his knowledge about the presence of topaz blade Ex.P3 beneath the double-bed kept in the hall on 1st floor of the temple, as under:
Question 5: Whereas it has come in evidence that the blood found on 'TOPAZ BLADE' Ex.P-3 which was recovered from under the double bed in the corner of hall on the first floor of the said temple had blood of human origin. You should explain as to how you had the knowledge that such blade having human blood was kept under the double bed in the corner of the hall on the first floor of the said temple. What you have to say?
Ans. I never had any knowledge about lying of any such Topaz Blade under double bed in the hall of the temple nor any such facts were disclosed by me to the police. It has been falsely alleged against me that blade was recovered at my pointing out.
102. PW-25 Insp. Jai Pal Singh categorically deposed that the accused disclosed that he can get the slippers of the deceased Sahil recovered. He stated that the accused pointed out the place where from he kicked the slippers of the deceased to drain / nali just opposite of the temple. He stated that police party tried to search the slipper of the deceased in and around the drain but they could not trace it. He stated that he called PW-22 Rajesh who searched slipper Ex.P2 with the help of a trowel from the drain opposite to the temple.
FIR No. 400/2013 State Vs. Sachin Page No. 47 of 55
103. PW-23 SI Gaurav Kumar corroborated him. PW-22 Rajesh deposed that he made search in the drain with the help of a trowel and one blue colour small slipper was found in the drain. He identified blue colour slipper Ex.P2 which was taken out by him from the drain. The said slipper Ex.P2 had residue of cow-dung when it was produced before the Court. PW-3 Sana stated that the accused pointed out a place in drain where he had thrown the slipper of her son. She stated that a sweeper searched the drain and one slipper of her son was found. She identified the slipper Ex.P2 as that of her deceased son. She stated that she signed on the seizure memo of slipper Ex.PW3/E. She categorically stated, in her cross-examination, that slipper was recovered from the drain in her presence at the instance of the accused. She categorically denied that slipper did not belong to her son and she was deposing falsely in this regard. There is no suggestion to PW-3 Sana that she had given her slipper to the Investigating Officer or thrown it in the drain so that it could be planted upon the accused. There is no reason as to why mother of the deceased would make false statement against the accused. It would be relevant to note that the colour of slipper was stated by PW-3 Sana in her missing report Ex.PW3/A also. Though there are contradictions as to who had called PW-22 Rajesh as well as time and duration of the search, this Court is of the considered opinion that in the presence of deposition of PW-3 Sana, such contradictions would not make the recovery of slipper Ex.P2 doubtful.
FIR No. 400/2013 State Vs. Sachin Page No. 48 of 55
104. The accused could not explain his knowledge about the presence of blue slipper of the deceased Ex.P2 in the drain just opposite to the temple, as under:
Question 6: Whereas it has come in evidence that a blue slipper Ex.P-2 belonging to the deceased Sahil was recovered at your instance from a drain just opposite to the said temple and as such, you should explain as to how you had the knowledge that the said blue slipper Ex.P-2 belonging to the deceased Sahil was thrown in the said drain. What you have to say? Ans. No such slipper was recovered at my instance from a drain just opposite to the temple nor I had ever knowledge that any such slipper was lying there. The proceedings related to recovery of slipper were fabricated by the police officials for adducing false evidence in the case.
105. The fact that PW-25 Insp. Jai Pal Singh and PW-23 SI Gaurav Kumar did not prepare the disclosure statement and seizure memos would not cause any dent to the prosecution case. Defective investigation per se is not sufficient to throw otherwise credible case of the prosecution.
106. In the case of Sunil Kundu v. State of Jharkhand, (2013) 4 SCC 422, it was held:
"29.....It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the depreciable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored....."
FIR No. 400/2013 State Vs. Sachin Page No. 49 of 55
107. In Hema v. State, (2013) 10 SCC 192, Hon'ble Apex Court held as under:
"18. It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the Court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth."
Defects / lapses in the investigation:
108. This Court has noted following defects / lapses in the investigation:
(a) SI Gaurav Kumar did not maintain any record of the proceedings conducted by him since 31.08.2013 at 4.40 p.m. to 02.09.2013 at 11.15 a.m.
(b) Insp. Jai Pal Singh and SI Gaurav Kumar did not scribe the disclosure statement and seizure memos in respect of seizure of cotton nada, cooler, topaz blade, capri and slipper.
(c) Insp. Jai Pal Singh did not collect Call Detail Record (CDR) of the accused Sachin despite the fact that he recovered mobile phone containing SIM No. 8285273094 in his personal search vide memo Ex.PW23/H.
(d) Insp. Jai Pal Singh and SI Gaurav Kumar did not collect Call Detail Record (CDR) in respect of call received by Javed despite the fact that his mobile No. 8585989532 is mentioned in his statement under section 161 of the Cr.P.C. Ex.PW25/DA and retrieved the number of the caller who made call to him 2-3 days before Eid and feigned ignorance about his mobile number in their evidence.
If not malafide, such lapses demonstrate high degree of negligence on the part of the Investigating Officers. This Court hereby recommend strong disciplinary action against Insp. Jai Pal Singh and SI Gaurav Kumar. Till the conclusion of disciplinary proceeding, they be not assigned investigation of any criminal case.
FIR No. 400/2013 State Vs. Sachin Page No. 50 of 55 Defence evidence:
109. As regards defence evidence that DW-1 Rajan Kumar that priest of the temple never handed over keys of the temple to him or any of his family members and they never used the temple premises for studying purposes and they hesitate in visiting the said temple as they belong to Schedule Caste (khateek) is concerned, it can be stated that defence never challenged testimony of PW-2 Rajender Prasad and PW- 5 Master Kapil Sharma on this aspect. This Court is satisfied that DW-1 Rajan Kumar is not a credible witness. His deposition is an after thought.
110. As regards contention that DW-1 Rajan Kumar was allotted Room No. 40 in Nehru Boys Hostel, Sanskar Ashram Complex, Dilshad Garden, Delhi-93 and the accused had applied for allotment of a room in the said hostel for the year 2013-14 is concerned, it can be stated that DW-2 Dhyan Singh categorically stated that there is no fixed time of arrival and departure of the inmates. He even stated that the said hostel do not maintain any record regarding the lodging of the inmates. He stated that the said hostel has no control over ingress and egress of the inmates. It is also an admitted fact that the accused was not allotted any room in the said hostel. Mere fact that DW-1 Rajan Kumar was allotted Room No. 40 in the said hostel is not sufficient to raise the inference that the accused and his brother Rajan Kumar never used the said temple or its hall for studying purposes.
FIR No. 400/2013 State Vs. Sachin Page No. 51 of 55
111. As regards defence evidence in the form of RTI reply Ex.DW3/A that 'there is no safai karamchari namely Rajesh Kumar is working / posted as permanent / temporary in PS Gokul Puri', it can be stated that PW-25 Insp. Jai Pal Singh or PW-22 Rajesh did not state so. PW-25 Insp. Jai Pal Singh stated that he called Rajesh, Safai Karamchari to assist the police party. PW-22 Rajesh also stated that he is a free lancer sweeper and he is doing cleaning work in the police station. He has not stated that he has been employed for the purpose of cleaning in the police station. Even otherwise, this aspect has already been dealt with. In the presence of evidence of PW-3 Sana, the defence cannot make any dent to the recovery of blue slipper from the drain on the basis of such evidence. Concealment of dead body in the cooler:
112. PW-10 Ct. Jai Kumar stated that they searched Sahil on the 1st floor of the temple. He stated that they had not conducted search of the child in the cooler kept in the corner of the hall on 1st floor of the temple. He stated that they had conducted cursory search and they did not expect that the dead body of the child could be in the cooler. PW-2 Rajender Prasad stated that the police came to the temple and searched Sahil but he was not found. PW-3 Sana stated that on 31.08.2013, she had searched her son in the entire temple alongwith police officials. On 02.09.2013 at about 11.00 - 11.15 a.m., the dead body of Sahil was recovered from the cooler Ex.P5 kept in the corner of the hall on 1st floor of the said temple.
FIR No. 400/2013 State Vs. Sachin Page No. 52 of 55
113. According to FSL Reports Ex.PW25/D and Ex.PW29/A, human blood was found in the said cooler. Perusal of photographs Ex.PW9/A1 to Ex.PW9/A2, Ex.PW9/A3, Ex.PW9/A4, Ex.PW9/A5 and Ex.PW9/A22 would show dead body of the deceased Sahil in the cooler Ex.P5 and a maroon colour piece of cloth was hanging from the top surface alongwith some articles thereupon in such a manner that it was not possible to suspect dead body in the said cooler on a cursory look. It is further relevant to mention that height of deceased Sahil was 4 foot and his body could be easily kept inside the colour without being noticed by anyone.
114. It is therefore, proved that the accused Sachin hidden the dead body of the deceased Sahil in the said cooler Ex.P5 in the hall on the 1 st floor of the said temple and thrown slipper of the deceased Ex.P2 in the drain just opposite to the said temple so as to cause evidence of the commission of the offence of kidnapping for murder and murder to disappear in order to screen himself from legal punishment. Defence contention:
115. As regards contention that the prosecution has not examined SI Anuj and SI Divyansh is concerned, it can be stated that the prosecution is not bound to examine each and every person associated with the case unless his examination is material to the case. SI Anuj and SI Divyansh were not the Investigating Officers of the case. They did no investigation of the case. Their non-examination in evidence is not material.
FIR No. 400/2013 State Vs. Sachin Page No. 53 of 55 Conclusion:
116. In view of the afore-said discussion, this Court is of the considered opinion that circumstantial evidence against the accused is fully established and complete. The facts so established are unerringly point towards his guilt and inconsistent with any hypothesis of his innocence. The incriminating circumstances established against the accused unmistakenly proved that the accused kidnapped Sahil with the intention to cause his murder and he committed murder of Sahil in the hall on 1st floor of the temple by strangulating his neck with cotton nada and thereafter, he concealed his dead body in the cooler kept in the corner of the hall.
117. Accordingly, the accused Sachin is convicted for committing offences under section 302, 364 and 201 of the Indian Penal Code, 1860.
Announced in the open court SANJAY SHARMA on this 03rd day of January, 2017. Special Judge NDPS (North-East) ASJ:KKD Courts, Delhi.
FIR No. 400/2013 State Vs. Sachin Page No. 54 of 55 SC No. 19(I)/13 FIR No. 400/2013 Under Section 363/302/201 IPC PS Gokal Puri 03.01.2017 Present: Sh. Dharam Chand, Ld. Addl. PP for the State.
Sh. Sanjay Gupta, Amicus Curiae for the accused. Accused in JC.
It is 12.00 noon.
Vide separate judgment announced in the open Court, the accused is convicted for committing offences under section 302, 364 and 201 IPC. Copy of the judgment given to the convict.
Issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the convict Sachin. Issue notice to the office of the DCP, NorthEast to submit antecedents / involvements of the convict Sachin. Issue notice to area SDM to submit report regarding movable or immovable assets of the convict Sachin. To come up for arguments on sentence on 09.01.2017.
Sanjay Sharma Special Judge NDPS (NE) ASJ/KKD/Delhi/03.01.2017 FIR No. 400/2013 State Vs. Sachin Page No. 55 of 55