Delhi District Court
State vs Dhan Bahadur on 5 August, 2015
IN THE COURT OF MANOJ JAIN: ADDL SESSIONS JUDGE
FAST TRACK COURT: NORTH-WEST DISTRICT: ROHINI
DELHI
Unique Identification No. 02404R0206152013
Sessions Case No. 130/1/13
FIR No. 104/2013
PS Bharat Nagar
U/s 302 IPC
State Versus Dhan Bahadur
Son of Sh. Ram Avadh,
Resident of Village Paharpur Sarai
Bhisam, PS Motigar Pur,
Tehsil Jai Singhpur,
District Sultan Pur, U.P.
Date of institution in Sessions Court : 27.07.2013
Date of conclusion of arguments : 17.07.2015
Date of judgment : 04.08.2015
Memo of appearances:
Sh. Sanjay Jindal, learned Addl. P.P. for State.
Sh. Yashvir Singh, learned Amicus Curiae for accused.
JUDGMENT
PROSECUTION VERSION 1.0 Accused Dhan Bahadur has been sent up to face trial for murder of his acquaintance Arun Kumar.
1.1 Case of the prosecution, briefly stated and as unfolded from challan, is to the effect that accused Dhan Bahadur, a rickshaw puller used to reside in a room constructed over a plot situated adjacent to Gurudwara Sabha, Nimari Colony, Ashok Vihar. One Manoj Kumar Singh (prosecution witness) also started residing there. Arun Kumar (Victim) used to visit them off and on.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 1 of 241.2 On 12.04.2013, Arun Kumar had come there. Accused and Arun Kumar took liquor till late night. They both were dead drunk. Since Manoj Kumar Singh was to go for his night duty at Kanhiya Nagar Metro Station Parking, he left for his workplace at 9.40 PM. He locked the outside gate while leaving them together inside.
1.3 At 6.30 AM next morning, accused came to said parking lot and revealed to Manoj Kumar Singh that someone had killed Arun Kumar. Manoj Kumar Singh did not believe his ears and immediately rushed to the spot and found dead body of Arun lying therein.
1.4 Then, they both immediately informed Sh. Mahender Singh, Granthi of Gurudwara Singh Sabha (PW2) about the aforesaid occurrence. He also, at once, went there along with them and saw Arun lying dead. He then asked accused as to what had happened on which accused revealed that Arun was sexually abusing him since childhood and the previous night when he (accused) tried to make sexual contact with him (galat kaam karne ki koshish kari), Arun started resisting and scuffling. He (accused) then picked up one stone and hit the same on the head of Arun and killed him.
1.5 Police was informed by Sh. Mahender Singh. FIR was accordingly registered and investigation was carried out.
1.6 Weapon of offence i.e. bloodstained stone was seized from the spot. Accused Dhan Bahadur was also got medically examined and his penile and anal swab were also preserved. His blood-stained clothes were also seized. As per postmortem report, head injury suffered by Arun was sufficient to cause death in ordinary course of nature and there were also injuries indicating attempted sodomy.
1.7 It is in these circumstances that, after comprehensive investigation, accused has been charge-sheeted for commission of offence under Section 302 IPC.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 2 of 24COGNIZANCE AND CHARGE 2.0 Charge-sheet was submitted before the concerned Magisterial Court on 11.07.2013 and case was committed to the Court of Sessions after compliance of provisions of Section 207 Cr.P.C.
2.1 Case was received on allocation by this Court on 27.07.2013.
2.2 Accused was ordered to be charged under Section 302 IPC vide order dated 20.09.2013.
2.3 He pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSECUTION 3.0 Prosecution was directed to adduce evidence and has examined twenty four witnesses.
3.1 These can be classified as under:
Public witnesses
(i) PW2 Sh. Mahender Singh (Granthi in whose presence accused had made extra judicial confession)
(ii) PW3 Sh. Vinod Singh (son of deceased who has identified the dead body and personal articles of his deceased father).
(iii) PW11 Sh. Vinod Kumar (nephew of deceased who identified the dead body of deceased Arun.
(iv) PW22 Sh. Vikas Kumar Singh (last seen witness).
Doctors/FSL Experts
(i) PW18 Sh. Amar Pal Singh, Assistant Director (Biology), FSL, Rohini (for proving the presence of ethyl alcohol in the blood sample of deceased).
(ii) PW19 Dr. Neeraj Chaudhary (for proving the potency test of accused).
(iii) PW24 Sh. Naresh Kumar, FSL Expert (for proving DNA profile report).
(iv) PW25 Dr. Bheem Singh (for proving postmortem report and for proving that injuries in question were possible by the weapon of offence i.e. stone).FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 3 of 24
Police officials
(i) PW1 HC Manoj Kumar (duty officer).
(ii) PWHC Jagbir Singh (DD Writer).
(iii) PW5 SI Nand Kishore (Incharge Crime Team).
(iv) PW6 Insp. Mahesh Kumar (Draftsman).
(v) PW7 Ct. Sanjay Pandey (photographer Crime Team).
(vi) PW8 Ct. Rajesh (Special Messenger who delivered copy of FIR to senior officers and learned area MM).
(vii) PW9 HC Tejpal (Incharge PCR Van).
(viii) PW10 ASI Rajender (police official who accompanied the IO to the spot).
(ix) PW12 SI Mahender Singh (First IO).
(x) PW13 HC Mukesh Kumar (police official who accompanied the IO to the spot).
(xi) PW14 Ct. Sanjay (police official who had taken the accused to hospital for his medical examination).
(xii) PW15 ASI Jagbeer (police official who collected exhibits from BJRM Hospital).
(xiii) PW16 HC Rakesh (MHCM),
(xiv) PW17 Ct. Anil Kumar (police official who had obtained the exhibits with FSL).
(xv) PW20 SI Puneet Grewal (police official who had deposited the exhibits with FSL).
(xvi) PW21 Ct. Rakesh (police official who took the dead body to BJRM Hospital).
(xvii) PW23 Insp. Rajender Prasad (investigating officer).
STATEMENT OF ACCUSED AND DEFENCE VERSION 4.0 Accused, in his statement under Section 313 Cr.P.C., pleaded innocence and claimed that he had been falsely implicated.
4.1 He also claimed that in order to solve a blind murder case, police made him a scapegoat and has been falsely implicated in this case and that he had no concern with the murder of Arun.
4.2 He did not lead any evidence in defence.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 4 of 24RIVAL CONTENTIONS 5.0 I have heard learned Addl. P.P. and learned counsel for accused and carefully perused the entire material available on record.
5.1 Sh. Jindal has contended that prosecution has been able to prove its case to the hilt. He has asserted following circumstances which, according to him, are sufficient to nail the accused down:-
(i) Accused & victim were together on the previous night and such fact has been proved by PW22 Vikas Kumar.
(ii) Extra-judicial confession made by accused before PW2 Sh. Mahender Singh, Granthi in which he admitted his guilt.
(iii) Forensic report which clearly indicates that the underwear of the accused was containing blood of deceased which corroborates the prosecution version.
(iv) Recovery of weapon of offence from the spot and the postmortem report and subsequent opinion of Dr. Bhim Singh which clearly indicate that injuries in question were possible by said stone.
(v) PM report also indicates happening of unnatural sexual assault which props up the case of prosecution.
(vi) Unexplained silence of accused from whose house a dead body was recovered. His silence points towards his complicity.
5.2 Sh. Jindal has also contended that all the other related investigational aspects have also been duly proved and there is no reason whatsoever to disbelieve the case of prosecution.
5.3 He has contended that accused immediately confided in Sh. Mahender Singh and admitted his involvement. He has asserted that Arun used to sexually exploit accused and when accused also tried to make such sexual FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 5 of 24 contact with Arun, Arun started resisting which made accused furious and he, therefore, killed him. He has argued that as per the postmortem report, there were six injuries in all and it is quite evident that the intention of the accused was to eliminate Arun who did not give in to his lustful designs.
5.4 Sh. Yashvir Singh has, on the other hand, refuted all the aforesaid contentions.
5.5 He has contended that investigating agency has framed accused finding him an easy prey. According to him, it was a blind murder and since police simply wanted to show that it had been able to crack the case, it laid hands over the accused and falsely arrested him in the present case.
5.6 He has argued that there is no merit in the alleged story of extra- judicial confession. He admits that accused knew victim and also that the victim used to come to his house quite often and, therefore, even if they both were together previous night, such fact would not, in itself, make the accused liable for the murder.
5.7 He has also claimed that one of the most crucial prosecution witnesses i.e. Manoj who was also residing there, has been held back which has caused serious damage to the case of prosecution and for want of testimony of said material witness, accused is liable to be acquitted straightway.
EVALUATION OF EVIDENCE 6.0 I have given my thoughtful consideration to the rival contentions.
6.1 Let me take up each circumstance one by one.
6.2 I need not remind myself that it's a case resting on bunch of circumstances. There is no eye-witness of the actual murder. Therefore, unerringly, the prosecution has to satisfy the Court that all the circumstances from which the inference of guilt is sought to be drawn are firmly and cogently FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 6 of 24 established and that all these circumstances unmistakably point towards the guilt of the accused. It is also to be shown by the prosecution that all such circumstances form a complete chain leaving no scope of gathering even an inkling of any fact which may be inconsistent with the guilt of the accused. I may also supplement that suspicion, howsoever grave, cannot be a substitute of a proof.
6.3 In view of aforesaid, let me weigh up each circumstance one by one.
CIRCUMSTANCE NO. 1: LAST SEEN TOGETHER 7.0 Needless to say that as per the case of prosecution, said crucial aspect could have been proved by two witnesses viz PW Manoj Kumar Singh and PW22 Vikas Kumar.
7.1 Prosecution has, however, failed to secure the presence of PW Manoj Kumar Singh. Summons were sent to him on several occasions but prosecution failed to procure his presence. He was reportedly no longer residing at the address available with prosecution and his present whereabouts could not be ascertained. Undoubtedly, his testimony was of immense importance but at the same time it cannot be said that case of prosecution is completely dependent upon his testimony.
7.2 Let me now see as to what PW22 Sh. Vikas Kumar has to offer.
7.3 PW22 Vikas Kumar has deposed that he was having a plot near Gurudwara Nimri Colony. It was in the name of his father. There were two-three temporary rooms constructed in that plot and accused had been deputed as chowkidar in said plot. He deposed that on 12.04.2013, he along with one Panditji had gone to said plot at about 8.00 pm for performing Puja and saw accused lying on the ground along with one unknown person. Both those persons were unconscious as they were under the influence of liquor. He also deposed that he had seen accused Dhan Bahadur with said person number of times earlier FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 7 of 24 also.
7.4 Sh. Yashvir Singh has contended that incident is of 13.04.2014 and statement of Vikas Kumar was recorded after a month and if at all, Vikas Kumar had seen any such thing with his own eyes, he should have rather revealed such fact to the police immediately as the murder had taken place in his plot.
7.5 Undoubtedly, it would have been better if the statement of Vikas Kumar had been recorded without any delay but I am not ready to believe that merely because his statement was recorded belatedly, it has to be necessarily assumed that he has been falsely introduced as a witness. I also cannot be unmindful of the fact that accused himself has admitted in his statement under Section 313 Cr.P.C. that Arun used to come to met him off and on.
7.6 It is quite evident that PW22 Vikas Kumar must be referring to deceased Arun Kumar as such other person whom he had seen at that plot previous night. However, it would have been appropriate if prosecution had shown him the photograph of deceased in order to get the aforesaid fact confirmed. No such attempt was made either during investigation by the police or by the prosecutor during trial.
7.7 Thus evidence of Vikas Kumar merely indicates that accused used to reside at said room and that the previous night, accused was present in his plot with someone else and they both were lying on the ground in inebriated state. I would also like to add here that even forensic report confirms presence of ethyl- alcohol in blood of deceased as is evident from report Ex. PW18/A given by PW18 Sh. Amar Pal Singh, Assistant Director (Chemistry), FSL, Delhi. It is also important to mention here that body of deceased was found in same plot in open. Accused has also maintained silence as to when Arun had come to his house? He is also not coming up with entire facts. Burden is on him to reveal facts which are in his special knowledge.
7.8 Be that as it may, testimony of Vikas Kumar lends a helping hand to prosecution story to some extent despite the fact that it's not clear as to who was FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 8 of 24 that other man whom he had seen previous night with the accused.
Circumstance No. ii: Extra-judicial confession made by accused before PW2 Sh. Mahender Singh, Granthi in which he admitted his guilt.
8.0 This happens to be one of the most key circumstance on which prosecution has built up its case.
8.1 As per prosecution, accused had made clean breast of his involvement before PW2 Sh. Mahender Singh. Let me, therefore, straightway come to his testimony.
8.2 PW2 Sh. Mahender Singh has deposed that there were two rooms constructed in a vacant plot adjacent to Gurudwara where accused Dhan Bahadur used to reside. One other boy with the name of Manoj was also residing there for quite some time and one Arun used to come to their rooms to meet them. PW2 Sh. Mahender Singh further deposed that on 13.04.2013, he was preparing Prasad in Gurudwara when at about 7.15 AM, accused and Manoj both had come to meet him and then Manoj told him that previous night i.e. on 12.04.2013 accused Dhan Bahadur and Arun had consumed liquor and Manoj left for his duty after locking the main gate from outside at about 9.40 PM. Manoj further told him that at about 6.30 AM, accused Dhan Bahadur came to him at Kanhiya Nagar Metro Station Parking, where Manoj used to work, and told him that Arun had died. On hearing this, Mahender Singh along with Manoj and accused went towards that plot and peeped inside the plot from the staircase of the Gurudwara and saw the dead body lying near the gate covered with a carpet. He asked accused and Manoj to inform the police and to call any relative of the deceased.
8.3 Initially, PW2 Mahender Singh thought that deceased had died due to consumption of excessive liquor. Since call could not connect, he made call from his mobile phone and then police came at the spot and opened the main door of the plot and he himself then went inside the plot. He deposed that Manoj and accused Dhan Bahadur were also there at that time with the police and the FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 9 of 24 carpet, which was lying over the body of the deceased, was removed and then it was learnt that dead body was of Arun Kumar. He also deposed that police made inquiries from the accused in his presence and accused then told that Arun Kumar used to commit sodomy with him and previous night accused wanted to commit unnatural sex with Arun but he refused on which he (accused) hit Arun with a stone. He also deposed that police recorded his statement. Such statement has been proved as Ex. PW2/A. 8.4 I would like to take a little pause here. If the prosecution case is to be believed then the police was nowhere in picture when accused Dhan Bahadur had made extra-judicial confession before Mahender Singh. Mahender Singh had rather informed the police only after accused Dhan Bahadur admitted his involvement in the matter. This is also evident from his statement made before the police. However, in his examination-in-chief, PW2 Sh. Mahender Singh deviated from his such stand and rather claimed that such confession was made by the accused in the presence of police. Since he was found deviating from the case of prosecution on the aforesaid aspect, he was cross-examined by the prosecution with the permission of the Court and in his such cross-examination, he made necessary amends and categorically testified that it was correct that when he had seen Arun lying dead, at that time he had asked accused about the same on which accused Dhan Bahadur told him that "Arun mere se galat kaam karta raha hai, aaj maine galat kaam karne ki koshish ki, usne mere saath hatapai shuru karni kar di, jo kafi nashe mei tha, maine plot se ek pathar utha kar uske sar pe maar diya aur usse jaan se maar diya". He also admitted that when accused told him about the aforesaid fact, thereafter, he had asked Manoj to call the police and that thereafter SI Mahender Singh along with staff reached at the spot. He claimed that due to lapse of time, he could not recollect all such facts.
8.5 I have seen his cross-examination and I am of the considered opinion that defence has not been able to impeach or shake the testimony of this material witness. There is nothing on record which may persuade me to discard the story of extra-judicial confession. Undoubtedly, in his initial deposition, Mahender Singh had claimed that such confession was made in the presence of police but in later part of his deposition, PW2 Mahender Singh has categorically claimed that FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 10 of 24 such extra-judicial was made at earlier point of time and that he had called the police subsequently. Undoubtedly, PW Manoj was also very important prosecution witness. He could have also corroborated the aforesaid aspect related to extra-judicial confession. It would have certainly strengthened the case of prosecution if prosecution was able to trace him out and to produce him before the Court for recording of his evidence but nonetheless I do not have any reason to disbelieve and discard the deposition made by Sh. Mahender Singh, Granthi of Gurudwara. His testimony clearly indicates that accused had made extra-judicial confession before him and admitted his involvement.
8.6 There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses should be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted by the court and can form the basis of conviction, if it passes the test of credibility. The extra-judicial confession should thus inspire full confidence and the court should find out whether there are other cogent circumstances as well on record to support it. While referring to various previous precedents on the issue of extra-judicial confession, Apex court in the case of Sahadevan and Anr. v. State of Tamil Nadu (2012) 6 SCC 403 culled out following principles:-
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law.FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 11 of 24
8.7 In the present case, I do not find any fact which may persuade me to discard such extra-judicial confession. It was made voluntarily before a Granthi of Gurudwara. Such confession inspires confidence. There is no reason as to why Sh. Mahendra Singh would tell a lie before the court and would try to implicate an innocent man whim whom he has no animosity. The confession of accused also seems quite natural and there is nothing to show that he was compelled by anyone to admit his involvement. He was asked by Granthi as to what had happened and he then himself revealed the truth. Making of confession was sort of spontaneous act of accused and it was made before a person of repute. It is thus voluntary, truthful and inspiring as well.
Circumstance No. iii: Forensic report which clearly indicates that the underwear of the accused was containing blood of deceased which corroborates the prosecution version.
Circumstance No. iv: Recovery of weapon of offence from the spot and the postmortem report and subsequent opinion of Dr. Bhim Singh which clearly indicate that injuries in question were possible by said stone.
Circumstance No. v: PM report also indicates happening of unnatural sexual assault which props up the case of prosecution.
9.0 All these circumstances relate to investigation and somewhat inter- connected and, therefore, I take up all these circumstance together.
9.1 Let me see the sequence of events.
9.2 Police Control Room was informed about the incident through mobile number 9868464787. Accordingly, DD No. 6A was recorded at PS Bharat Nagar. It has been proved as Ex. PW4/A. PW12 SI Mahender Singh was informed about DD No. 6A and he along with PW16 HC Rakesh reached the spot where they saw one dead body covered in carpet whose private part was found covered with a torn pants. He also deposed that there were injury marks on the face and body of deceased and there was lot of blood underneath the head of the dead body. He also deposed about various other objects which were lying at the spot i.e. near & FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 12 of 24 around the dead body. He mentioned about one handkerchief, one big stone stained with blood, bloodstained shirt, pair of plastic chappal, spectacles and bloodstained shirt near the wall, one torn banian, one empty plastic bottle, one diary, I-card and some papers besides one iron chain & lock along with key. He also deposed that SHO of PS Bharat Nagar also reached at the spot.
9.3 PW23 Insp. Rajender Prasad was posted as SHO, PS Bharat Nagar at the relevant time. He deposed that on receipt of DD No. 6A, he along with SI Dilbagh Singh and other staff reached the spot and there he found SI Mahender Singh along with Ct. Rakesh present with PCR staff. He also found a male dead body lying inside the plot in naked condition whose private part was covered with brown color trouser and a carpet was also lying nearby with bloodstains. He also noticed injury marks on the dead body and that dead body was lying in a pool of blood. He also described about said various other objects which were lying around the dead body in different directions. He also deposed that accused was also present there. Since it was a murder case, investigation, after the registration of FIR, was carried out by PW23 Insp. Rajender Prasad himself. He also deposed that SI Mahender Singh recorded statement of Mahender Singh, Granthi at the spot and in his presence, crime team officials also came at the spot and inspected the spot. Photographs of the spot were also taken. Such photographs have been proved as Ex. PW7/1 to PW7/31. Testimony of concerned photographer i.e. PW5 Ct. Sanjay Pandey is unrebutted and uncontroverted. These photographs show the dead body lying in naked condition. Private part is found covered with a trouser and one carpet is also seen lying near the dead body. Photographs also show various other objects including bloodstained shirt, purse, bloodstained stone piece etc. However, no chance-print could be lifted from the spot. Report of PW5 SI Nand Kishore who was incharge of Crime Team, North-West District has been proved in this regard as Ex. PW5/A. Scaled site plan was prepared by PW6 Insp. Mahesh Kumar who has proved the same as Ex. PW6/A. 9.4 Accordingly, rukka was prepared by SI Mahender Singh and was sent to PS for registration of case and after the FIR was registered, investigation was conducted by PW23 Insp. Rajender Prasad. He has proved various seizure FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 13 of 24 memos and site plan.
9.5 It would be also important to mention that one bloodstained shirt of accused Dhan Bahadur, which was lying near the dead body, was identified by Manoj as the one which accused was wearing previous night. It was taken into possession from the spot at a distance of 100 feet from the dead body. It was seized vide memo Ex. PW13/C. Such shirt has been proved as Ex. P-6.
9.6 It will be also important to mention that one more bloodstained shirt of accused was taken into possession from his room vide seizure memo Ex. PW13/I. Such shirt was seized pursuant to the interrogation made from accused who stated that after removing his bloodstained shirt (Ex. P-6), he had worn the other shirt which also got bloodstained and he then removed that second shirt also and wore a third shirt. Such second shirt has also been exhibited as Ex. P-13.
9.7 As per case of prosecution, accused had revealed that when his first short got stained with blood, he tried to wipe the blood with the help of one angochha and he also got recovered such angochha from his premises which was kept by him in one construction material mixer. PW23 Insp. Rajender Prasad has deposed that at the instance of accused, one bloodstained white color gamcha (towel) was recovered from a construction material mixer & grinder outside the plot near the roadside which was seized vide memo Ex. PW10/E. Such angochha has been proved as Ex. P-1.
9.8 PW23 Insp. Rajender Prasad has also deposed that accused was wearing one underwear at that time and he was instructed to remove the same. Such underwear was found having bloodstains and such underwear of sky-blue color was taken into possession vide memo Ex. PW10/D. Such underwear of accused has also been proved as Ex. P-2.
9.9 It will be also important to mention that bloodstained shirt and banian belonging to deceased were also seized at the spot. These have been exhibited as Ex. P-8 and PW3 Vinod Singh has also identified such shirt and banian and has deposed that these belonged to his father.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 14 of 249.10 As regards aforesaid seizure of his own bloodstained shirts, angochha and underwear, accused has merely pleaded his ignorance. He claimed that he had been falsely implicated. He has also denied the fact that he was wearing any underwear which was having bloodstains.
9.11 According to the stand taken by accused in his statement under Section 313 Cr.P.C., Arun used to come to meet them. However, as regards the date of incident, he simply claimed that on 13.04.2013 when he returned to his room, he peeped inside from outside and noticed a dead body lying inside and he then immediately informed Sh. Mahender Singh. He deposed that he did not know as to how Arun had died and who had killed him. He also denied having made any extra-judicial confession to anyone and claimed that police had implicated him in order to show that case had been solved.
9.12 Let me now see the postmortem report. It was prepared by Dr. V.K. Jha. It has been proved by PW25 Dr. Bhim Singh, Associate Professor who was also posted as Incharge Mortuary, BJRM Hospital at the relevant time. He has identified the handwriting and signatures of Dr. V.K. Jha whom he (Dr. Bhim Singh) had seen writing and signing during discharge of his official duties. PW25 Dr. Bhim Singh has also deposed that Dr. V.K. Jha had also worked under him at BJRM Hospital. Postmortem report has been proved as Ex. PW25/B and the cause of death has been given as cerebral damage as a result of blunt force diverted upon head by other party. All the injuries have been claimed to be ante- mortem in nature. Anal injury was also noticed. External injuries are as under:
(i) Lacerated wound on right temporal region 6cm x 3cm bone deep.
(ii) Lacerated wound just behind right pinna 2cm x 1cm bone deep.
(iii) Bruise of size 3cm x 2cm just left pinna.
(iv) Lacerated wound on left eyebrow 5cm x 1.5cm bone deep.
(v) Lacerated wound on left face 3cm x 2cm on zygomatic region muscle deep.
(vi) Lacerated wounds on chin left side two in number 1cm apart of face 3cm x
2cm to 2cm x 2cm x muscle deep respectively.
(vii) Laceration of lip @ gum of lower lip etc. middle and left side.
(viii) Lacerated wound of 2cm x 2cm x muscle deep on right face.
9.13 It was also opined that injury no. 1 to 6 had been caused by striking
the body with hard blunt object and anal injury was consistent with attempt of sodomy. It was also opined that head injury was sufficient to cause death in FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 15 of 24 ordinary course of nature. Time since death has been given as 36 hours approximately. Postmortem was conducted on 14.04.2013 at 12.00 noon which means that approximate time of death was around 12 night of the intervening night of 12.04.2013 & 13.04.2013 which seems consistent with the case set up by the prosecution.
9.14 It will be also important to mention that PW25 Dr. Bhim Singh had given the opinion regarding the stone in question. He was shown such stone and after examining the shape of the stone and its weight, he gave opinion that the injuries mentioned in the postmortem report were possible due to such stone. His such opinion has been proved as Ex. PW25/A. 9.15 Let me now see the forensic opinion with respect to various exhibits which had been sent to forensic laboratory. Twenty separate parcels were sent to FSL, Rohini through Ct. Rakesh Kumar for DNA examination.
9.16 DNA report has been proved by PW24 Sh. Naresh Kumar, Senior Scientific Officer (Biology). As per result of analysis , the blood was detected on exhibit '1' (loose and lumps of earth described as blood control kept in a plastic container), exhibit '2' (loose earthy material kept in plastic container), exhibit '3' (gauze cloth piece having brown stains kept in a plastic container), exhibit '4' (one shirt having brown stains), exhibit '5' (one shirt having a few brown stains), exhibit '8' (one bowl having brown stains), exhibit '9' (one empty bottle two litre), exhibit '10' (one carpet having brown stains), exhibit '11' (one stone/concrete piece having brown stains), exhibit '12' (one cloth piece/angocha having brown stains), exhibit '13' (one underwear having a few brown stains), exhibit '14a' (one shirt having brown stains), exhibit '14b' (one cut/torn banian having brown stains), exhibit '17' (gauze cloth piece described as penile swab of deceased), exhibit '19' (dark brown gauze cloth piece described as blood gauze of deceased) and exhibit '20' (one cut/torn pant having brown stains). Semen, however, could not be detected on underwear of accused though it was detected on gauze cloth piece described as penile swab of deceased.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 16 of 249.17 Importantly, DNA could be isolated from underwear of the accused and it matched with the blood gauze of the deceased. Allele Table of said two exhibits has also been made part of the report. Thus, it becomes very much evident that the underwear of accused was found stained with the blood of deceased. Such fact has been established by the impeccable DNA evidence. It will be also worthwhile to mention that testimony of PW24 Sh. Naresh Kumar is unrebutted. Accused has merely disowned his aforesaid underwear but there is no reason to disbelieve the prosecution story. It is not explained by the defence as to why police would falsely implicate accused Dhan Bahadur with whom they do not have any acrimony.
9.18 It will be also important to mention that one bowl was also seized from the room of the accused. Such bowl was found to be containing some greasy/oil type object. It was seized vide memo Ex. PW13/J and such bowl has been exhibited as Ex. P-14. Sh. Jindal has contended that since there was an attempt to commit unnatural sex, there is every possibility that in order to achieve such objective, oil might have been used by the accused. Such possibility cannot be ruled out. Various other police officials have also deposed about seizure of said exhibits and there does not seem to be any dispute with respect to their safe deposit right from the seizure till those were sent to forensic laboratory for expert opinion.
9.19 Accused was also sent to BJRM Hospital for medical examination and his MLC has been proved as Ex. PW19/A and as per deposition of PW19 Dr. Neeraj Chaudhary, there was nothing to suggest that accused was not capable of performing of homosexuality.
9.20 All these circumstances clearly indicate that murder had been committed with a stone. Such stone i.e. piece of concrete was also sent to FSL and as per the report of FSL, such concrete (exhibit 11) was containing human blood. It's seizure memo has been proved as Ex. PW13/B. It also stands established that as per PM report, such injuries were possible by said stone. PM report also reveals attempt of unnatural sex. Blood of deceased was also found on the underwear of accused.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 17 of 249.21 Postmortem report also shows that blood sample of deceased was preserved as NaF i.e. mixture of citrate buffer in combination with sodium fluoride. Such sample was examined by forensic laboratory. PW18 Sh. Amar Pal Singh, Assistant Director (Chemistry), FSL, Delhi had been provided with the blood sample of deceased and when he tested the same, he opined that such sample was found containing ethyl alcohol. His such report has been proved as Ex. PW18/A. Thus, ethyl alcohol was found in the bloodstream of deceased. Such aspect is in complete synchronization with the prosecution story.
Circumstance no. vi : Unexplained silence of accused from whose house a dead body was recovered.
10.0 The onus of proving the guilt of an accused, naturally, rests on the prosecution. However, once the prima facie case is established by the prosecution, if there is any fact which happens to be within the special knowledge of any accused, such accused is required to explain the same. Section 106 of Indian Evidence Act is certainly not intended to relieve the prosecution of its burden of proof. It is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. If knowledge of certain facts is as much available to the prosecution on exercise of due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused.
10.1 Here in the present case, it has come on record that the dead body was recovered from a plot where the accused had been residing. It is not the case of defence that the dead body was of any stranger. It has also been established by the prosecution that victim Arun Kumar Singh was an acquaintance of accused Dhan Bahadur and used to visit him off and on. Undoubtedly, one another material prosecution witness Manoj Kumar could not be produced before the Court during the trial, but nonetheless, the accused is under legal obligation to explain as to under what circumstances the dead body was recovered from his premises.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 18 of 2410.2 As per the postmortem report and various other documents of prosecution, it is evident that the death had taken place at the dead hour of the night. If statement of accused u/s 313 Cr.P.C. is to be believed, he had returned from somewhere and then he had noticed the dead body. He has not bothered to explain as to where he had gone and why. He has not placed on record any document or other evidence which may show that on the fateful night, he was not in his premises and was away to work or otherwise. Be that as it may, since there is no explanation, much less a reasonable one, from accused as to how the dead body of his acquaintance was recovered from his premises, his such mysterious silence should go against him.
CONCLUSION 11.0 In view of my foregoing discussion, I am unable to hold that accused has nothing to do with the death in question. There are number of facts and circumstances which collectively point towards the involvement of accused and accused alone. These are as under:-
i) The dead body was recovered from the premises of accused.
ii) The dead body was of an acquaintance of accused.
iii) Accused has not bothered to explain as to from where he had returned, if at all, he was away and was not in his house that night.
iv) As per the testimony of PW22 Vikas Kumar, he had seen accused and one more person together lying in inebriated state at about 8.00 p.m. Though he did not give the description of that other person, yet the FSL report clearly suggests that deceased Arun Kumar Singh was the same person as ethyl alcohol was found in blood in NaF of deceased.
v) Blood of deceased was found on the underwear of accused. DNA profiling report clearly indicates that the DNA profile of the blood of deceased matched with the blood stains appearing on the underwear of accused.
vi) Postmortem report of deceased also indicates that the murder had taken place around 12 night which is in full consonance with the case of prosecution.FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 19 of 24
vii) As per the postmortem report Ex. PW25/B, the anal injury suggests attempted sodomy and as per the FSL report Ex. PW24/A, human semen was also detected from the penile swab of the deceased. The dead body was also found in naked condition and all these facts are found to be in complete synchronization with the case set-up by the prosecution and also the motive as according to prosecution, the accused and the victim used to indulge in unnatural sex and when accused desired to enter into such sexual conduct that night as active partner, the victim resisted which enraged the accused.
vii) There is no reason whatsoever to disbelieve the testimony of PW2 Mahender Singh who categorically claimed that accused had made extra judicial confession to him about his involvement in the murder in question.
11.1 In view of the aforesaid established circumstances, it is quite evident that deceased was killed by accused Dhan Bahadur. In a case of circumstantial evidence, each circumstance has to be proved beyond reasonable doubt by independent evidence and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused. Court is under obligation to examine the entire evidence in its entirety especially in case of circumstantial evidence and ensure that the only inference drawn from the evidence is the guilt of the accused. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused. Reference be made to Munish Mubar v. State of Haryana, (2012) 10 SCC 464.
11.2 However, it is still required to be seen whether it is a case of culpable homicide amounting to murder or not.
Sec 299 IPC defines Culpable homicide as under:-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Sec 300IPC defines murder as under:-
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 20 of 24 which the death is caused is done with the intention of causing death, or- Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
11.3 There are five exceptions given in sec 300 IPC. In context of the present case, I would extract only two exceptions here.
Exception 1- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing. or doing harm to any person. Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly- That the provocation is not given by anything done in the lawful exercise of the right of private defense.
Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.
11.4 In the scheme of the Indian Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murders' are 'culpable homicide' but not vice- versa.FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 21 of 24
Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section304.
11.5 In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused observing as under:-
"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre- meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances :FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 22 of 24
(i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
11.6 In Jagrup Singh v. State of Haryana (1981) 3 SCC 616, the accused had given a fatal blow on the head of the victim during a sudden fight causing fracture to the skull. Supreme Court altered the conviction from Section 302 to Section 304, Part II IPC. Reference may also be made to Sarabjeet Singh and Ors. v. State of Uttar Pradesh (1984) 1 SCC 673, Mer Dhana Sida v. State of Gujarat (1985) 1 SCC 200, Sukhmandar Singh v. State of Punjab AIR 1995 SC 583 and Chamru Budhwa v. State of Madhya Pradesh AIR 1954 SC 652 in which cases also, finally, the conviction was altered from Section 302 IPC to Section 304, Part II of IPC. Thus, question whether a case falls under Section 302 or 304 has to be decided from case to case depending on factors like the circumstances in which the incident takes place, the nature of weapon used and whether weapon was carried or was taken from the spot and whether the assault was aimed on vital part of the body; the amount of force used; whether the deceased participated in the sudden fight; whether there was any previous enmity; whether there was any sudden provocation; whether the attack was in the heat of passion; whether the person inflicting the injury took any undue advantage or acted in a cruel or unusual manner. The list of circumstances is not exhaustive and there may be several other circumstances with reference to individual cases.
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 23 of 2411.7 There is no doubt that present is a case of culpable homicide. Death of Arun is homicidal. It also stands proved that accused is author of injuries in question. However, it needs to be firmly evaluated whether he had caused death with such intention and /or with such knowledge that death was the only certainty. It is also to be see whether any exception is attracted or not.
11.8 I would hasten to supplement that degree of certainty of death, on most of the occasions, divides the specie from the genus. The difference between culpable homicide and murder is very subtle. Both the offences include the elements of knowledge and intention. The main distinction depends upon the degree of risk to human life by the act. If death is a likely result of the act of offender, it is culpable homicide ; if death is a sure result of the act of offender, it is murder. Here, accused and victim were known to each other. They were rather good pals. They both had taken hell lot of liquor that night and were lying in open in somewhat unobjectionable position. This is, even otherwise, the story projected by state. Here, evidently, there was no enmity between the two and, therefore, there was hardly any motive as such with accused to kill his friend, that too an intimate one (Pun intended).
11.9 Something happened all of a sudden that night which enraged accused. Even going by the prosecution story, accused used to permit his such friend to make sexual contact with him on various previous occasions. That night, accused tried to switch roles and wanted to become 'active' partner which idea was shun by his friend. That, perhaps, enraged the accused. He picked up a stone lying at the spot and in the moment of passion, he killed him. He was overcome by some strong impulse and lost raison d'être. In such a peculiar backdrop, some key ingredients of both the aforesaid exceptions come into play.
11.10 Resultantly, I hold accused guilty of offence u/s 304 (Part II) instead of sec 302 IPC and convict him thereunder.
Announced in the open Court
On this 04th day of August 2015 (MANOJ JAIN)
Addl. Sessions Judge (FTC)
North-West District: Rohini: Delhi
FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 24 of 24
FIR No. 104/13
PS: Bharat Nagar
State Vs. Dhan Bahadur
05-08-2015
Present. Sh. Sanjay Jindal, Addl. PP for State.
Convict in J.C. with Sh. Yashbir Singh, learned Legal Aid Counsel.
1 Heard arguments on sentence.
2 Learned Addl. PP has contended that convict should be given maximum sentence as one precious life has perished.
3 Sh. Yashbir Singh, learned Legal Aid Counsel has, on the other hand, prayed for maximum clemency. It has been argued by him that the incident was not premeditated one and it rather occurred in a flash. He has also contended that convict has a family to support and has no previous bad antecedents and, therefore, he may be let off with the period of imprisonment already undergone by him so far.
4 Convict has been held guilty for offence u/s 304 (Part-II) IPC which invites maximum sentence of 10 years.
5 It is aptly said that once the guilt is pronounced, the dilemma as regards the punishment begins. Court is required to see all the mitigating and aggravating circumstances and then to handout the sentence which is appropriate keeping in mind the overall facts and circumstances of any given case. Court is under bound duty to keep in mind the 'act in question' as well as its 'impact' over any identifiable individual as well as over the society as a whole.
6 Undue sympathy to any convict should not be shown because inadequate sentence can do more harm to the justice delivery system which can even undermine the confidence of the public in the efficacy of law. Justice, FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 25 of 24 therefore, demands that Courts should impose punishment befitting the crime as a true reflection of public abhorrence of the crime. Therefore, the Court is required to scrutinize and weigh up the rights of the convict, the rights of the victim as well as the message which the society would perceive from such punishment.
7 The discretion, in awarding sentence, thus has to be exercised in the most judicious manner.
8 Here, the convict knew the victim before hand. Victim used to visit the house of convict off and on and they both were very close and intimate friends. It has also come on record that they both used to indulge together in unnatural sexual activity and when convict, on the night of the incident, tried to switch roles and tried to become an active partner in such activity, such idea was shun by the victim which agitated the convict and, therefore, in a heat of passion, he killed him with a stone lying at the spot itself. Naturally, there was no premeditation.
9 Keeping in mind the peculiar facts and circumstances of the case, the various theories regarding punishment including the theory of "just deserts", I sentence the convict to undergo rigorous imprisonment for seven years with fine of Rs. 30,000/-. In default of payment of such fine, he would further undergo simple imprisonment for a period of six months.
10 Needless to say, he would be entitled to benefit of provision of Section 428 Cr.P.C.
11 He be sent to jail under appropriate warrants.
12 A copy of judgment and order on sentence be provided to him free of cost.
13 Convict has also been informed that he can file an appeal against the order of conviction and sentence. Sh. Yashbir Singh, learned Legal Aid counsel, who is present in Court, has also apprised the convict about his rights. It is also expected that the concerned Jail Superintendent would also provide necessary FIR No. 104/13 PS Bharat Nagar (State Vs. Dhan Bahadur) Page 26 of 24 assistance to the convict in case he expresses any desire to file an appeal.
14 Fine not deposited.
15 File be consigned to Record Room.
Announced in the open Court (MANOJ JAIN)
On this 5th day of August, 2015 Addl. Sessions Judge (FTC)
North-West Distt: Rohini: Delhi
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